Having all of this rest on the "conspiracy" charge means that the rules in this case are different, and the evidence just needs to show conspiracy -- not necessarily focus on the infringement aspects.
That's a big fat Bingo. Conspiracy is nasty stuff. My recollection is that all the guvment needs to prove is a plan to do something illegal by 2 or more people, and one overt act in furtherance of the conspiracy. Don't even need to accomplish the illegal goal. The more Dotcom talks, the more he gives them to work with.
All these things really are designed to do is to provide legal coverage, but they do absolutely nothing to actually benefit users. When you have to do things to satisfy legal requirements which don't actually benefit users, it's a total waste of resources.
One very important, though seemingly small part of most TOS is the venue clause saying you have to sue the website in its judicial district. Gosh-knows-how-many people regularly call a lawyer in their town wanting to sue MegaWhateverSite.com for something nasty some user posted about them. General practice plaintiffs lawyers see a textbook defamation case, but many don't know about the site's immunity for 3rd-party posts under §230, or other safe harbors for sites hosting 3rd-party content.
Plaintiff's lawyer reads TOS, sees venue clause (and potentially-enforceable limitation of liability clauses), can't see viable way out of it, advises local client they can't help -- get a lawyer in Palo Alto. Client decides instead not to sue MegaWhateverSite.com.
Without the venue clause, even more cases than already are being filed, get filed in every town across the country by well-meaning plaintiffs' lawyers. MegaWhateverSite.com has to defend all by filing a motion to transfer venue and/or dismiss, in the plaintiff's home court.
MegaWhateverSite.com wins in the end anyway because it's immune and should not have been sued at all. But it spends substantially more resources obtaining local counsel, or getting court permission to practice in that jurisdiction under that jurisdiction's laws.
So venue clauses in most TOS may well have stopped thousands of pointless and wasteful lawsuits. It benefits the gonna-lose-anyway-user, the well-meaning but underinformed plaintiffs' attorney, and MegaWhateverSite.com's bottom line, which ultimately may flow back to the consumer as well (or not).
No business is focused on maximizing tickets sold.
Follow baseball? They won't let up on tickets sold (despite the ludicrous number-fudging being an open secret - cue Marlins last year, often claiming 15k attendance when clearly there might have been 2k in the seats).
Almost this exact case was used for the "fair use" discussions in a copyright survey course I took maybe 12 years ago.
Seuss & Co. got themselves a court ruling that said emulating the style of Seuss without parody of an actual work was infringement. So it was not likely just a C&D, but a C&D with case citations to the time long ago that they won on this issue. Hence the quick fold by the publisher.
"I'm curious if people feel this practice is so egregious that it needs a new federal law?
Recall that they needed to pass laws to keep employers from discriminating on the basis of sex, age, race, creed, disability, etc. If not to stop it, to at least remind employers that sort of thing is not acceptable behavior.
We have an insanely lopsided situation, where people who need to eat would with great trepidation cough up the profile if the option is more job searching and hungry or homeless family. So yes.
Asking for a party's profile access is like asking them for their email password - see what you've been saying or doing with their friends. I doubt many would argue that as being anything but impermissibly invasive.
Asking for social network login is akin to that, especially for those who keep their personal social networks small, tight, and limited.
This was about a hotel feature that pumps music into the guest rooms.
... and if so, one would presume that the music in hotel rooms, like the TV, has various channels to select, or can be turned off or on by the guest as desired, unlike the dentist's office (although that would be grand - in light of what usually gets played at dentists).
Er ... a new longer TLD. That makes sense. Watch how those extra two letters to type (and TLD to remember) keeps the riffraff (and lots of others) out all by itself.
I was thinking the same. Isn't it here that we at times read about bad-guy legislators egregiously trying to sneak bad legislation into unrelated legislation hoping that nobody will notice? But when friend-o-Techdirt Wyden (of whom I am a big fan) tries it, he gets a thumbs-up to try it elsewhere. Just saying.
Think of the copyright lawyers! ... (and the children)
So let's say, er, you're a copyright lawyer who, er, advises clients regarding file sharing issues, or ... well anything copyrighted. And, well you can't really work a case without having access to the material in question, which means your client has to, um ... share it with you.
I'll bet there isn't a check box for that defense. Guess the lawyers will have to find the six best cases, throw the other clients to the curb, and find a new line of work after those 6 are over. Thanks *AAs. Like to send a lawyer off the wagon and to AA.
I was wondering when this would come up. Great. Smells like antitrust to me. Who cares if the US Gubment investigates - there are private rights of action that could get to this.
Class actions of late have a pall of lawyer money-grubbing over them, but this seems like a good case to let a class action do what it was designed for -- vindicate the rights of a distinct class of people. A pretty freaking big class.
1) There are only 12 notes to work from in Western music. There's going to be overlap and similarities.
2) The idea of "stealing a riff" is really about having a jumping off point. At the end of the day the work can't help be become its own (unless the writer is truly an untalented plagiarist).
3) This is a substantively separate issue from sampling existing recorded music which has no part in the discussion of Springsteen or MJ lifting riffs they like.
I've written hundreds of songs over 30 years. Nearly every one I can tell you what the "canvas" was - a "T. Rex feel" or "that awesome mellow drum sound on Synchronicity," "something Weezeresq." It's called inspiration, and often referred to as copying by those who are confident enough to admit they were inspired by someone else.
Case in point - This newish instrumental is called "Beastly," named specifically so I could remember it is "the tune I ripped from a Beastie Boys song." If you figure out which, great. Otherwise, nobody would ever know unless told.
http://youtu.be/3hhwEv7Gh2Q
(Disclosure: the video is an ad for the song itself, royalty-free, but used here to illustrate the point.)
Finally, there are only 12 notes to work with here.
Oh, now I get where you are going here. But the problem with your argument is that failure to formally designate an agent for DMCA purposes does not necessarily mean that DU was difficult to serve. Righthaven's claim was procedural - you have to send your $105+ and designation of agent to the US Copyright office to fall under the DMCA safe harbor. Many many blogs do not do that, despite often having a DMCA takedown address listed on their site. The issue of loss of safe harbor doesn't usually come into play, because only idiots, golddiggers, and folks like Righthaven sue sites over third-party posts.
The court was not asked to and did not address the issue of the agent's designation. Righthaven was dismissed for lack of standing before the case got there. DMCA was not in play.
One of Mike's points in this post was that losing DMCA safe harbor (solely for failure to pay the Copyright office) does not mean that a site is therefore liable for third-party posts. Lacking safe harbor just means the site is analyzed under traditional secondary liability standards. Here, no go.
On the post: Kim Dotcom Fires Back: Raises Questions About US's Evidence, Shows Studios Were Eager To Work With Megaupload
Bingo
That's a big fat Bingo. Conspiracy is nasty stuff. My recollection is that all the guvment needs to prove is a plan to do something illegal by 2 or more people, and one overt act in furtherance of the conspiracy. Don't even need to accomplish the illegal goal. The more Dotcom talks, the more he gives them to work with.
On the post: Will Tumblr's New Terms Of Service Finally Lead To The De-Stupidifying Of Terms Of Service?
... okay, try this angle:
One very important, though seemingly small part of most TOS is the venue clause saying you have to sue the website in its judicial district. Gosh-knows-how-many people regularly call a lawyer in their town wanting to sue MegaWhateverSite.com for something nasty some user posted about them. General practice plaintiffs lawyers see a textbook defamation case, but many don't know about the site's immunity for 3rd-party posts under §230, or other safe harbors for sites hosting 3rd-party content.
Plaintiff's lawyer reads TOS, sees venue clause (and potentially-enforceable limitation of liability clauses), can't see viable way out of it, advises local client they can't help -- get a lawyer in Palo Alto. Client decides instead not to sue MegaWhateverSite.com.
Without the venue clause, even more cases than already are being filed, get filed in every town across the country by well-meaning plaintiffs' lawyers. MegaWhateverSite.com has to defend all by filing a motion to transfer venue and/or dismiss, in the plaintiff's home court.
MegaWhateverSite.com wins in the end anyway because it's immune and should not have been sued at all. But it spends substantially more resources obtaining local counsel, or getting court permission to practice in that jurisdiction under that jurisdiction's laws.
So venue clauses in most TOS may well have stopped thousands of pointless and wasteful lawsuits. It benefits the gonna-lose-anyway-user, the well-meaning but underinformed plaintiffs' attorney, and MegaWhateverSite.com's bottom line, which ultimately may flow back to the consumer as well (or not).
On the post: Hollywood, Once Again, Sets A Record At The Box Office
Follow baseball? They won't let up on tickets sold (despite the ludicrous number-fudging being an open secret - cue Marlins last year, often claiming 15k attendance when clearly there might have been 2k in the seats).
On the post: C&D Squashes Seuss-Style Satire: Where Did The Idea/Expression Dichotomy Go?
Re: Seuss has been down this road before ...
On the post: C&D Squashes Seuss-Style Satire: Where Did The Idea/Expression Dichotomy Go?
Seuss has been down this road before ...
Seuss & Co. got themselves a court ruling that said emulating the style of Seuss without parody of an actual work was infringement. So it was not likely just a C&D, but a C&D with case citations to the time long ago that they won on this issue. Hence the quick fold by the publisher.
On the post: Should We Outlaw Employers From Asking For Social Networking Logins?
Recall that they needed to pass laws to keep employers from discriminating on the basis of sex, age, race, creed, disability, etc. If not to stop it, to at least remind employers that sort of thing is not acceptable behavior.
We have an insanely lopsided situation, where people who need to eat would with great trepidation cough up the profile if the option is more job searching and hungry or homeless family. So yes.
Asking for a party's profile access is like asking them for their email password - see what you've been saying or doing with their friends. I doubt many would argue that as being anything but impermissibly invasive.
Asking for social network login is akin to that, especially for those who keep their personal social networks small, tight, and limited.
On the post: Bizarre Combo Rulings From EU Court Of Justice: Dentists Don't Have To Pay Music Royalties, But Hotels Do
Re: Re: The difference
... and if so, one would presume that the music in hotel rooms, like the TV, has various channels to select, or can be turned off or on by the guest as desired, unlike the dentist's office (although that would be grand - in light of what usually gets played at dentists).
On the post: ICANN Confirms That It's Going To Make It Easier For Governments To Seize Domains Around The Globe
Re: Re:
On the post: Fear-Induced Foolishness: Entertainment Industry Thinks Controls On New TLDs Will Actually Impact Piracy
On the post: Tons Of Companies Sued In Class Action Lawsuit Over Uploading Phone Addressbooks
Re: In the end, it won't matter
Oooooh shiny!
On the post: Bad Idea: Internet Service Providers Should Assume Most Digital Locker Content Is 'Illegal'
Re:
I think it works like this: You can, as long as you don't circumvent the DRM software, which is illegal. Meaning, you can't.
On the post: Bad Idea: Internet Service Providers Should Assume Most Digital Locker Content Is 'Illegal'
Movies are on Hotfile, therefore the vast majority of uploaded files are infringing...
On the post: Wyden Tries To Get Anti-ACTA/TPP Amendments Included In JOBS Act Vote
Re: Elsewhere
On the post: Why Hollywood's Six Strike Plan Should Be Investigated For Antitrust Violations
Think of the copyright lawyers! ... (and the children)
I'll bet there isn't a check box for that defense. Guess the lawyers will have to find the six best cases, throw the other clients to the curb, and find a new line of work after those 6 are over. Thanks *AAs. Like to send a lawyer off the wagon and to AA.
On the post: Why Hollywood's Six Strike Plan Should Be Investigated For Antitrust Violations
Class actions of late have a pall of lawyer money-grubbing over them, but this seems like a good case to let a class action do what it was designed for -- vindicate the rights of a distinct class of people. A pretty freaking big class.
On the post: Summit Entertainment Claims To Own The Date November 20, 2009; Issues Takedown On Art Created On That Day
Re: Hey...that's my...
On the post: Bruce Springsteen, Another Pirate Remixer!
Copying, aka Inspiration
1) There are only 12 notes to work from in Western music. There's going to be overlap and similarities.
2) The idea of "stealing a riff" is really about having a jumping off point. At the end of the day the work can't help be become its own (unless the writer is truly an untalented plagiarist).
3) This is a substantively separate issue from sampling existing recorded music which has no part in the discussion of Springsteen or MJ lifting riffs they like.
I've written hundreds of songs over 30 years. Nearly every one I can tell you what the "canvas" was - a "T. Rex feel" or "that awesome mellow drum sound on Synchronicity," "something Weezeresq." It's called inspiration, and often referred to as copying by those who are confident enough to admit they were inspired by someone else.
Case in point - This newish instrumental is called "Beastly," named specifically so I could remember it is "the tune I ripped from a Beastie Boys song." If you figure out which, great. Otherwise, nobody would ever know unless told.
http://youtu.be/3hhwEv7Gh2Q
(Disclosure: the video is an ad for the song itself, royalty-free, but used here to illustrate the point.)
Finally, there are only 12 notes to work with here.
On the post: This American Life Retracts Entire Episode About Apple Factories After Mike Daisey Admits To Fabricating Parts Of The Story
On the post: New Ruling In Old Righthaven Case Makes Two Important Points: Protecting Fair Use And Secondary Liability
Re: Re: Re: Re: Re:
The court was not asked to and did not address the issue of the agent's designation. Righthaven was dismissed for lack of standing before the case got there. DMCA was not in play.
One of Mike's points in this post was that losing DMCA safe harbor (solely for failure to pay the Copyright office) does not mean that a site is therefore liable for third-party posts. Lacking safe harbor just means the site is analyzed under traditional secondary liability standards. Here, no go.
On the post: New Ruling In Old Righthaven Case Makes Two Important Points: Protecting Fair Use And Secondary Liability
Re: Re: Re: Re: Re:
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