...making Linux just a little more fun!
Ben Okopnik [ben at linuxgazette.net]
Interesting court case involving the RIAA.
----- Forwarded message from Debbie Rosenbaum <[email protected]> -----From: Debbie Rosenbaum <[email protected]> To: [email protected] Subject: TODAY: In RI federal court - Harvard vs. the RIAA Date: Sun, 14 Dec 2008 23:59:25 -0500FOR IMMEDIATE RELEASE CONTACT: Debbie Rosenbaum | 314.761.3322 December 15, 2008 [email protected] HARVARD PROFESSOR & STUDENTS FIGHT THE RIAA: COME TO RHODE ISLAND FEDERAL COURT TO PROTECT DEFENDANT'S FAMILY Now it's his parents. Who's next? Cambridge, MA (December 2008) - At a Dec. 15 hearing in Rhode Island federal court, Harvard Law School Professor Charles Nesson and his team of students will defend Rhode Island residents Arthur and Judie Tenenbaum from the full might of the U.S. recording industry's combined lobbying and litigating power. The Tenenbaums face legal pressure from the industry's lawsuit against their son, Joel, a graduate student at Boston University accused of sharing music files online. Nesson and his team allege that the Recording Industry Association of America and a coalition of record companies are abusing the federal court system with their litigation tactics, which attempt to make an example out of Joel and his family in the name of "deterrence." Joel faces possible damages of more than $1 million for allegedly sharing seven songs on the Kazaa file-sharing network. The Dec. 15 hearing will address the recording industry's motion to force Arthur and Judie to produce their home computer so that it can be inspected for evidence of copyright infringement. The computer is not the device on which the alleged downloading took place, and Arthur and Judie did not own the computer when Joel lived with them. "The basic rules of evidence suggest that this invasion of privacy is both unnecessary and absurd," said Matt Sanchez, one of Nesson's students working on the case. "This hearing isn't only about Joel's parents. It's also about finally putting up a fight against the recording industry's intimidation practices." The hearing is scheduled for December 15 at 10:00 AM at the Federal Building and Courthouse, One Exchange Terrace, Providence, RI 02903 in Courtroom A, before Magistrate Judge Lincoln D. Almond. Interviews will be available with Charles Nesson and his students immediately following the hearing. For more information, please visit: http://blogs.law.harvard.edu/cyberone/riaa/. ### CyberOne is a course that teaches Harvard Law School students to use the tools of cyberspace to improve society, guide development of the law, and connect in creativity and peace. Professor Charles Nesson is the William F. Weld Professor of Law at Harvard Law School and Founder of the Berkman Center for Internet & Society. Debbie Rosenbaum HARVARD | BUSINESS | SCHOOL HARVARD | LAW | SCHOOL First Circuit Governor | ABA Law Student Division [email protected] [email protected] ----- End forwarded message -----
-- * Ben Okopnik * Editor-in-Chief, Linux Gazette * http://LinuxGazette.NET *
Jimmy O'Regan [joregan at gmail.com]
2008/12/16 Ben Okopnik <[email protected]>:
> > HARVARD PROFESSOR & STUDENTS FIGHT THE RIAA: > COME TO RHODE ISLAND FEDERAL COURT > TO PROTECT DEFENDANT'S FAMILY
http://www.washingtontimes.com/news/2008[...]tacks-song-swap-ban-as-unconstitutional/
'Mr. Nesson argues that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional because it effectively lets a private group - the Recording Industry Association of America, or RIAA - carry out civil enforcement of a criminal law.'
Ben Okopnik [ben at linuxgazette.net]
On Tue, Dec 16, 2008 at 01:21:48PM +0000, Jimmy O'Regan wrote:
> 2008/12/16 Ben Okopnik <[email protected]>: > > > > HARVARD PROFESSOR & STUDENTS FIGHT THE RIAA: > > COME TO RHODE ISLAND FEDERAL COURT > > TO PROTECT DEFENDANT'S FAMILY > > http://www.washingtontimes.com/news/2008[...]tacks-song-swap-ban-as-unconstitutional/ > > 'Mr. Nesson argues that the Digital Theft Deterrence and Copyright > Damages Improvement Act of 1999 is unconstitutional because it > effectively lets a private group - the Recording Industry Association > of America, or RIAA - carry out civil enforcement of a criminal law.'
RIAA is simply carrying on a long and honorable tradition. I mean, really - why would you expect them to surrender their most basic, inalienable rights? Ius primae noctis, chiefage, corvee, tallage...
-- * Ben Okopnik * Editor-in-Chief, Linux Gazette * http://LinuxGazette.NET *
Jimmy O'Regan [joregan at gmail.com]
2008/12/16 Ben Okopnik <[email protected]>:
> On Tue, Dec 16, 2008 at 01:21:48PM +0000, Jimmy O'Regan wrote: >> 2008/12/16 Ben Okopnik <[email protected]>: >> > >> > HARVARD PROFESSOR & STUDENTS FIGHT THE RIAA: >> > COME TO RHODE ISLAND FEDERAL COURT >> > TO PROTECT DEFENDANT'S FAMILY >> >> http://www.washingtontimes.com/news/2008[...]tacks-song-swap-ban-as-unconstitutional/ >> >> 'Mr. Nesson argues that the Digital Theft Deterrence and Copyright >> Damages Improvement Act of 1999 is unconstitutional because it >> effectively lets a private group - the Recording Industry Association >> of America, or RIAA - carry out civil enforcement of a criminal law.' > > RIAA is simply carrying on a long and honorable tradition. I mean, > really - why would you expect them to surrender their most basic, > inalienable rights? Ius primae noctis, chiefage, corvee, tallage... >
Actually, I just finished reading 'The Public Domain: Enclosing the Commons of the Mind' by James Boyle (http://www.thepublicdomain.org/) and the most surprising thing to me was that he manages to explain the 'opposite' viewpoint in a way that doesn't seem completely unreasonable--that there's more to it than just monopolists clinging to their monopoly, there's a very real aversion to the notion of the public domain (I, for one, had never appreciated that to be the case).
Ben Okopnik [ben at linuxgazette.net]
On Tue, Dec 16, 2008 at 02:44:42PM +0000, Jimmy O'Regan wrote:
> 2008/12/16 Ben Okopnik <[email protected]>: > > > > RIAA is simply carrying on a long and honorable tradition. I mean, > > really - why would you expect them to surrender their most basic, > > inalienable rights? Ius primae noctis, chiefage, corvee, tallage... > > Actually, I just finished reading 'The Public Domain: Enclosing the > Commons of the Mind' by James Boyle (http://www.thepublicdomain.org/) > and the most surprising thing to me was that he manages to explain the > 'opposite' viewpoint in a way that doesn't seem completely > unreasonable--that there's more to it than just monopolists clinging > to their monopoly, there's a very real aversion to the notion of the > public domain (I, for one, had never appreciated that to be the case).
It is certainly possible to represent almost any viewpoint as being reasonable; I recall reading about someone (Daniel Webster, possibly?) who on a bet took up, sequentially, two sides of a debate and won both times. The real question is, what is the greatest good? Does RIAA's "real aversion" trump all other rights? Does copyright trump the right of ownership? I, for one, consider the current status of this to be completely abhorrent.
Surely, the recording companies do provide a service and deserve to be compensated for it. That does not mean that they have the right to arbitrarily sue anyone they want for millions of dollars and put them in jail just because they shared a song with someone. They certainly don't (or shouldn't) have the right to make up their own legal systems - guilt by association, in this case - and try people under those.
Terror tactics and violence are rights that governments reserve only for themselves (i.e., the government has the right to scare you into compliance, and to take away your freedom or kill you if you don't obey; that's central to all government everywhere.) If it is illegal for us as individuals to do those things, then it should certainly be illegal for any group or association as well.
-- * Ben Okopnik * Editor-in-Chief, Linux Gazette * http://LinuxGazette.NET *
Jimmy O'Regan [joregan at gmail.com]
2008/12/16 Ben Okopnik <[email protected]>:
> On Tue, Dec 16, 2008 at 02:44:42PM +0000, Jimmy O'Regan wrote: >> 2008/12/16 Ben Okopnik <[email protected]>: >> > >> > RIAA is simply carrying on a long and honorable tradition. I mean, >> > really - why would you expect them to surrender their most basic, >> > inalienable rights? Ius primae noctis, chiefage, corvee, tallage... >> >> Actually, I just finished reading 'The Public Domain: Enclosing the >> Commons of the Mind' by James Boyle (http://www.thepublicdomain.org/) >> and the most surprising thing to me was that he manages to explain the >> 'opposite' viewpoint in a way that doesn't seem completely >> unreasonable--that there's more to it than just monopolists clinging >> to their monopoly, there's a very real aversion to the notion of the >> public domain (I, for one, had never appreciated that to be the case). > > It is certainly possible to represent almost any viewpoint as being > reasonable; I recall reading about someone (Daniel Webster, possibly?) > who on a bet took up, sequentially, two sides of a debate and won both > times. The real question is, what is the greatest good? Does RIAA's > "real aversion" trump all other rights? Does copyright trump the right > of ownership? I, for one, consider the current status of this to be > completely abhorrent. >
Ok, that came across poorly. I didn't mean just the RIAA (or any
similar monopolist's club). The most illustrating thing for me was his
explanation of the phrase 'the tragedy of the commons'--maybe it's
because I descend from the losing side of that one, but I'd never
given that view-point much thought, and, as Boyle explains it, that
view point goes a great length towards explaining not why the RIAA et
al. try to have laws favourable only to themselves passed--that much
is obvious--but why they succeed. (It's certainly a more satisfactory
explanation than putting it down to corrupt judges and politicians, if
only because I doubt even the RIAA have enough money to buy off all
of them 
Or, perhaps I should just quote the man's own words, rather than
further mangle them
"The question is not whether the Internet should be an intellectual property-free zone; it should not be, is not, and never was. The question is whether, when the content industries come asking for additional or new rights, for new penalties, for the criminalization of certain types of technology, we should take into account the gains that the Internet has brought them, as well as the costs, before we accede to their requests. The answer, of course, is that we should. Sadly, we did not. [...] "There is a fairly solid tradition in intellectual property policy of what I call "20/20 downside" vision. All of the threats posed by any new technology--the player piano, the jukebox, the photocopier, the VCR, the Internet--are seen with extraordinary clarity. The opportunities, however, particularly those which involve changing a business model or restructuring a market, are dismissed as phantoms. The downside dominates the field, the upside is invisible. The story of video recorders is the best-known example. When video recorders--another technology promising cheaper copying--first appeared, the reaction of movie studios was one of horror. [...] Hollywood tried to have them taxed to pay for the losses that would be caused. Their assumption? Cheaper copying demands stronger rights. "Having lost that battle, the movie studios tried to have the manufacturers of the recording devices found liable for contributory copyright infringement; [...] The movie studios' claims were rejected. [...] "Until the triumph of DVDs, the videocassette rental market made up more than 50 percent of the movie industry's revenues[...] A cheaper copying technology definitely caused losses. But it also provided substantial gains, gains that far outweighed the losses. Ironically, had the movie companies "won" in the Sony case, they might now be worse off."
> Surely, the recording companies do provide a service and deserve to be > compensated for it. That does not mean that they have the right to > arbitrarily sue anyone they want for millions of dollars and put them in > jail just because they shared a song with someone. They certainly don't > (or shouldn't) have the right to make up their own legal systems - guilt > by association, in this case - and try people under those. >
That's exactly the case Mr. Nesson is making:
"The statutory scheme that Plaintiffs are wielding against Joel and thousands of others like him empowers the plaintiffs to initiate and prosecute massive numbers of punitive actions. The statutory scheme gives their association, the RIAA, unbridled discretion to sue millions of individuals like the Defendant, and to threaten expensive time-consuming process and a bankrupting verdict against anyone with the effrontery and stamina to resist. This is an unconstitutional delegation by Congress of executive prosecutorial powers to private hands. A statutory scheme such as this one is "legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body," Carter v. Carter Coal, 298 U.S. 238 (1936)."
(http://blogs.law.harvard.edu/cyberone/fi[...]08-10-27-oppositiontomotiontodismiss.pdf)
> Terror tactics and violence are rights that governments reserve only for > themselves (i.e., the government has the right to scare you into > compliance, and to take away your freedom or kill you if you don't obey; > that's central to all government everywhere.) If it is illegal for us as > individuals to do those things, then it should certainly be illegal for > any group or association as well.
It is illegal:
'Abuse of process consists of a "perversion of lawfully initiated process to illegitimate ends." Heck v. Humphrey, 512 U.S. 477, 486 n. 5 (1994) (citations omitted). "One who uses a legal process ... against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process." Restatement (2nd) of Torts § 682. Plaintiffs are abusing the federal process because their suit against Joel Tenenbaum has nothing whatsoever to do with seeking redress for losses he may have caused. Their ulterior goal is to sacrifice him in the name of "deterrence"'
Jimmy O'Regan [joregan at gmail.com]
2008/12/16 Jimmy O'Regan <[email protected]>:
> 2008/12/16 Ben Okopnik <[email protected]>: >> On Tue, Dec 16, 2008 at 02:44:42PM +0000, Jimmy O'Regan wrote: >>> 2008/12/16 Ben Okopnik <[email protected]>: >>> > >>> > RIAA is simply carrying on a long and honorable tradition. I mean, >>> > really - why would you expect them to surrender their most basic, >>> > inalienable rights? Ius primae noctis, chiefage, corvee, tallage...
And this just in, from Slashdot: http://news.slashdot.org/article.pl?sid=08/12/16/0015248&from=rss
"In one of its 'ex parte' cases seeking the names and addresses of 'John Does,' this one targeting students at the University of Southern California, the RIAA obtained an order granting discovery - but with a wrinkle. The judge's order (http://beckermanlegal.com/pdf/?file=/Law[...]006OrderGrantDiscoveryInjunctiveOnly.pdf) specified that the information obtained could not be used for any purpose other than obtaining injunctions (http://recordingindustryvspeople.blogspo[...]8_12_01_archive.html#2945347892160815508) against the students. Apparently the RIAA lawyers have ignored, or failed to understand, that limitation, as an LA lawyer has reported that the RIAA is busy calling up the USC students (http://laist.com/2008/12/15/record_companies_threaten_to_sue_us.php) and their families and demanding monetary settlements."
Ben Okopnik [ben at linuxgazette.net]
On Tue, Dec 16, 2008 at 05:13:59PM +0000, Jimmy O'Regan wrote:
> 2008/12/16 Ben Okopnik <[email protected]>: > > > > It is certainly possible to represent almost any viewpoint as being > > reasonable; I recall reading about someone (Daniel Webster, possibly?) > > who on a bet took up, sequentially, two sides of a debate and won both > > times. The real question is, what is the greatest good? Does RIAA's > > "real aversion" trump all other rights? Does copyright trump the right > > of ownership? I, for one, consider the current status of this to be > > completely abhorrent. > > Ok, that came across poorly. I didn't mean just the RIAA (or any > similar monopolist's club). The most illustrating thing for me was his > explanation of the phrase 'the tragedy of the commons'
Unfortunately, that rings a little hollow when used as an argument for the RIAA. The Tragedy of the Commons is a very important consideration in, e.g., on-line communities, and should be required reading for anyone involved in running one (it was, in fact, the major factor that destroyed USENET - at least in my opinion), but using that possibility to maintain a permanent death grip on artistic expression is a ridiculous case of FUD. Have you heard of the Tragedy of the Anticommons?
(http://en.wikipedia.org/wiki/Tragedy_of_the_anticommons)
> --maybe it's > because I descend from the losing side of that one, but I'd never > given that view-point much thought, and, as Boyle explains it, that > view point goes a great length towards explaining not why the RIAA et > al. try to have laws favourable only to themselves passed--that much > is obvious--but why they succeed. (It's certainly a more satisfactory > explanation than putting it down to corrupt judges and politicians, if > only because I doubt even the RIAA have enough money to buy off all > of them
As a general statement, legal systems exist to maintain and protect the status quo; their bailiwick does not include (you might even say that it intentionally excludes) anything new and different. Peer-to-peer networks for sharing information are not only new - they go directly counter to established systems. So does Open Source.
(Incidentally: I, personally, have no dog in this fight. I've used Limewire maybe four times when it first became available, and have pretty much ignored that side of the world ever since.)
> Or, perhaps I should just quote the man's own words, rather than > further mangle them
His saying so does not, of course, make this true. The entire Internet is, of course, not "an intellectual property-free zone" - but the entire Internet is not any one thing no matter what (except, perhaps, a network.)
> The > question is whether, when the content industries come asking for > additional or new rights, for new penalties, for the > criminalization of certain types of technology, we should take into > account the gains that the Internet has brought them, as well > as the costs, before we accede to their requests. The answer, of > course, is that we should. Sadly, we did not.
True, and accurate. And yet, where are the judges who know enough to make such decisions? I suspect - in fact, I'm certain - that the next generation, or perhaps the one after that, will have such judges; the current one does not.
> [...] > "There is a fairly solid tradition in intellectual property policy of > what I call "20/20 downside" vision. All of the threats posed by any > new technology--the player piano, the jukebox, the photocopier, the > VCR, the Internet--are seen with extraordinary clarity. The > opportunities, however, particularly those which involve changing a > business model or restructuring a market, are dismissed as phantoms. > The downside dominates the field, the upside is invisible.
The above is essentially a paraphrase of McLuhan. There are few surprises here.
> The story > of video recorders is the best-known example. When video > recorders--another technology promising cheaper copying--first > appeared, the reaction of movie studios was one of horror. [...] > Hollywood tried to have them taxed to pay for the losses that would be > caused. Their assumption? Cheaper copying demands stronger rights.
Their assumption was exactly that of the RIAA - that they have an eternal right to their current business model, and no damn new-fangled invention is going to affect that.
> "Having lost that battle, the movie studios tried to have the > manufacturers of the recording devices found liable for contributory > copyright infringement; [...] The movie studios' claims were rejected. > [...] > "Until the triumph of DVDs, the videocassette rental market made up > more than 50 percent of the movie industry's revenues[...] A cheaper > copying technology definitely caused losses. But it > also provided substantial gains, gains that far outweighed the losses. > Ironically, had the movie companies "won" in the Sony case, they might > now be worse off."
Yes, but - and here's the big one - the movies studios had to adapt. They had to learn how to operate in this new world - which meant making changes, hiring new people, accepting new ideas. Traditionalists hate that - despite the fact that doing so successfully means much more money (if for no reason other than the population growth over time.)
This is what the RIAA's position is currently; being dragged into the future while screaming "NOOOOOOOO!!!!" at the top of their lungs and dragging their nails on the asphalt. They can't stop it - but they can do a lot of damage to a lot of people along the way, just as they're doing now.
> > Surely, the recording companies do provide a service and deserve to be > > compensated for it. That does not mean that they have the right to > > arbitrarily sue anyone they want for millions of dollars and put them in > > jail just because they shared a song with someone. They certainly don't > > (or shouldn't) have the right to make up their own legal systems - guilt > > by association, in this case - and try people under those. > > That's exactly the case Mr. Nesson is making:
Ah. Nice to know that, despite having essentially no legal education, I
can still tell right from wrong.
> > Terror tactics and violence are rights that governments reserve only for > > themselves (i.e., the government has the right to scare you into > > compliance, and to take away your freedom or kill you if you don't obey; > > that's central to all government everywhere.) If it is illegal for us as > > individuals to do those things, then it should certainly be illegal for > > any group or association as well. > > It is illegal: > > 'Abuse of process consists of a "perversion of lawfully > initiated process to illegitimate ends." Heck v. Humphrey, 512 > U.S. 477, 486 n. 5 (1994) (citations omitted). "One who uses a > legal process ... against another primarily to accomplish a > purpose for which it is not designed, is subject to liability to > the other for harm caused by the abuse of process." Restatement > (2nd) of Torts § 682. Plaintiffs are abusing the federal process > because their suit against Joel Tenenbaum has nothing whatsoever > to do with seeking redress for losses he may have caused. Their > ulterior goal is to sacrifice him in the name of "deterrence"'
Thanks, Jimmy! That expresses my viewpoint exactly.
-- * Ben Okopnik * Editor-in-Chief, Linux Gazette * http://LinuxGazette.NET *
Jimmy O'Regan [joregan at gmail.com]
2008/12/21 Ben Okopnik <[email protected]>:
> On Tue, Dec 16, 2008 at 05:13:59PM +0000, Jimmy O'Regan wrote: >> 2008/12/16 Ben Okopnik <[email protected]>: >> > >> > It is certainly possible to represent almost any viewpoint as being >> > reasonable; I recall reading about someone (Daniel Webster, possibly?) >> > who on a bet took up, sequentially, two sides of a debate and won both >> > times. The real question is, what is the greatest good? Does RIAA's >> > "real aversion" trump all other rights? Does copyright trump the right >> > of ownership? I, for one, consider the current status of this to be >> > completely abhorrent. >> >> Ok, that came across poorly. I didn't mean just the RIAA (or any >> similar monopolist's club). The most illustrating thing for me was his >> explanation of the phrase 'the tragedy of the commons' > > Unfortunately, that rings a little hollow when used as an argument for > the RIAA. The Tragedy of the Commons is a very important consideration > in, e.g., on-line communities, and should be required reading for anyone > involved in running one (it was, in fact, the major factor that > destroyed USENET - at least in my opinion), but using that possibility > to maintain a permanent death grip on artistic expression is a > ridiculous case of FUD. Have you heard of the Tragedy of the > Anticommons? > > (http://en.wikipedia.org/wiki/Tragedy_of_the_anticommons) >
Well, it's not all bad news: http://yro.slashdot.org/article.pl?sid=08/12/20/1811246
"A set of pharmaceutical process patents for 'evaluating and improving the safety of immunization schedules' (Classen v. Biogen et al.; see US Patents 6,420,139; 6,638,379; 5,728,385; 5,723,283) were held to be invalid due to unpatentability. The decision was appealed to the US Court of Appeals for the Federal Circuit, but was upheld with a terse citation to In re Bilski (which decision we discussed here). Here's the entire text of the appeals decision: 'In light of our decision in In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc), we affirm the district court's grant of summary judgment that these claims are invalid under 35 U.S.C. 101. Dr. Classen's claims are neither "tied to a particular machine or apparatus" nor do they "transform a particular article into a different state or thing." Bilski, 545 F.3d at 954. Therefore we affirm.' It will be interesting to see what happens when these same standards start getting applied to software-related patents."
>> --maybe it's >> because I descend from the losing side of that one, but I'd never >> given that view-point much thought, and, as Boyle explains it, that >> view point goes a great length towards explaining not why the RIAA et >> al. try to have laws favourable only to themselves passed--that much >> is obvious--but why they succeed. (It's certainly a more satisfactory >> explanation than putting it down to corrupt judges and politicians, if >> only because I doubt even the RIAA have enough money to buy off all >> of them
> (Incidentally: I, personally, have no dog in this fight. I've used > Limewire maybe four times when it first became available, and have > pretty much ignored that side of the world ever since.)
Well, I'm not interested in the file sharing fight too much, but I am interested in the weird and wonderful world of copyright.
I've been working on Polish-English machine translation for a while, and having parallel text is something of a must for me. So, I OCRd some books I found on the internet, proofread them, and sent them to Project Gutenberg. Under American Law, that's perfectly legal--the books are in the public domain--but I'm not American, and am possibly guilty of copyright infringement under EU law, because EU copyright law has a bunch of ideas that American law doesn't, such as the 'natural rights' of authors (not that it isn't frequently referred to, but it has no constitutional basis in American law) and 'sweat of the brow' rights. The act of sticking a book on a scanner may be enough to create a new copyright in the EU, in which case I may be screwed--it's highly unlikely, not least because nothing can stop PG from distributing the e-texts, but it's a possibility.
I'm not losing any sleep over it, though
>> The >> question is whether, when the content industries come asking for >> additional or new rights, for new penalties, for the >> criminalization of certain types of technology, we should take into >> account the gains that the Internet has brought them, as well >> as the costs, before we accede to their requests. The answer, of >> course, is that we should. Sadly, we did not. > > True, and accurate. And yet, where are the judges who know enough to > make such decisions? I suspect - in fact, I'm certain - that the next > generation, or perhaps the one after that, will have such judges; the > current one does not. >
It does, but not enough Eldred v. Ashcroft, for example, lost in
the Supreme Court by 7-2.
>> The story >> of video recorders is the best-known example. When video >> recorders--another technology promising cheaper copying--first >> appeared, the reaction of movie studios was one of horror. [...] >> Hollywood tried to have them taxed to pay for the losses that would be >> caused. Their assumption? Cheaper copying demands stronger rights. > > Their assumption was exactly that of the RIAA - that they have an > eternal right to their current business model, and no damn new-fangled > invention is going to affect that. >
With online MP3 sales, they're doing quite well, thank you very much, without even the cost of the plastic and paper of a CD. They have TV companies footing the bill for the latest manufactured pop stars. They have lower sales, but they also have lower costs, but somehow that'll be overlooked.
>> It is illegal: >> >> 'Abuse of process consists of a "perversion of lawfully >> initiated process to illegitimate ends." Heck v. Humphrey, 512 >> U.S. 477, 486 n. 5 (1994) (citations omitted). "One who uses a >> legal process ... against another primarily to accomplish a >> purpose for which it is not designed, is subject to liability to >> the other for harm caused by the abuse of process." Restatement >> (2nd) of Torts § 682. Plaintiffs are abusing the federal process >> because their suit against Joel Tenenbaum has nothing whatsoever >> to do with seeking redress for losses he may have caused. Their >> ulterior goal is to sacrifice him in the name of "deterrence"' > > Thanks, Jimmy! That expresses my viewpoint exactly.
It still remains to be seen if the court agrees that this is what's happening in this case. OTOH, the RIAA have made statements recently to say that they won't be chasing after people in this manner in the future. I'd be surprised if that's the truth, but there's at least a little hope.
Ben Okopnik [ben at linuxgazette.net]
On Sun, Dec 21, 2008 at 07:16:18PM +0000, Jimmy O'Regan wrote:
> 2008/12/21 Ben Okopnik <[email protected]>: > > > > (http://en.wikipedia.org/wiki/Tragedy_of_the_anticommons) > > > > Well, it's not all bad news: > http://yro.slashdot.org/article.pl?sid=08/12/20/1811246 > > "A set of pharmaceutical process patents for 'evaluating and improving > the safety of immunization schedules' (Classen v. Biogen et al.; see > US Patents 6,420,139; 6,638,379; 5,728,385; 5,723,283) were held to be > invalid due to unpatentability.
[...]
> It will be interesting to see what happens when > these same standards start getting applied to software-related > patents."
[Nod] There is at least a small bit of movement in that direction; the recent mouse-over "patent" fiasco, now this. Good to see it.
> > (Incidentally: I, personally, have no dog in this fight. I've used > > Limewire maybe four times when it first became available, and have > > pretty much ignored that side of the world ever since.) > > Well, I'm not interested in the file sharing fight too much, but I am > interested in the weird and wonderful world of copyright.
Truth to tell, when it comes to the current state of that, I get lost
very quickly. There's so much data - all of it seemingly pertinent -
that I just run out of mental space, and have to run off and do
something simple like programming.
> The act of sticking a book on a scanner may be > enough to create a new copyright in the EU, in which case I may be > screwed--it's highly unlikely, not least because nothing can stop PG > from distributing the e-texts, but it's a possibility. > > I'm not losing any sleep over it, though
So, we have (at least potentially) an international criminal on staff.
COOL!!! Now, we'll get all the girls!
> >> The > >> question is whether, when the content industries come asking for > >> additional or new rights, for new penalties, for the > >> criminalization of certain types of technology, we should take into > >> account the gains that the Internet has brought them, as well > >> as the costs, before we accede to their requests. The answer, of > >> course, is that we should. Sadly, we did not. > > > > True, and accurate. And yet, where are the judges who know enough to > > make such decisions? I suspect - in fact, I'm certain - that the next > > generation, or perhaps the one after that, will have such judges; the > > current one does not. > > It does, but not enough
And then there's Judge Peter "I don't know what a website is" Openshaw.
http://en.wikipedia.org/wiki/Peter_Openshaw There are many others like him, too.
-- * Ben Okopnik * Editor-in-Chief, Linux Gazette * http://LinuxGazette.NET *
Jimmy O'Regan [joregan at gmail.com]
2008/12/22 Ben Okopnik <[email protected]>:
> On Sun, Dec 21, 2008 at 07:16:18PM +0000, Jimmy O'Regan wrote: >> 2008/12/21 Ben Okopnik <[email protected]>: >> > >> > (http://en.wikipedia.org/wiki/Tragedy_of_the_anticommons) >> > >> > (Incidentally: I, personally, have no dog in this fight. I've used >> > Limewire maybe four times when it first became available, and have >> > pretty much ignored that side of the world ever since.) >> >> Well, I'm not interested in the file sharing fight too much, but I am >> interested in the weird and wonderful world of copyright. > > Truth to tell, when it comes to the current state of that, I get lost > very quickly. There's so much data - all of it seemingly pertinent - > that I just run out of mental space, and have to run off and do > something simple like programming.
Heck, even Project Gutenberg, who have decades of experience working
with PD material, still have problems with some copyright rules (which
is why--for the most part--they stick to items published before 1923).
They have a somewhat amusing page, somewhere (mislaid the link), that
has a list of their various replies to people who have accused them of
infringing copyright.
>> The act of sticking a book on a scanner may be >> enough to create a new copyright in the EU, in which case I may be >> screwed--it's highly unlikely, not least because nothing can stop PG >> from distributing the e-texts, but it's a possibility. >> >> I'm not losing any sleep over it, though
[Note to self: in future, stick to the crimes that gain money ]
>> >> It does, but not enough
"Court officials later said his statement was an attempt to clarify issues for the benefit of the court, not for himself, as is the role of the judiciary."
cough
Rick Moen [rick at linuxmafia.com]
Quoting Jimmy O'Regan ([email protected]):
> Heck, even Project Gutenberg, who have decades of experience working > with PD material, still have problems with some copyright rules (which > is why--for the most part--they stick to items published before 1923). > They have a somewhat amusing page, somewhere (mislaid the link), that > has a list of their various replies to people who have accused them of > infringing copyright.
Probably: http://cand.pglaf.org/
> [Note to self: in future, stick to the crimes that gain money
My mother always taught me: If you absolutely insist on stealing something, make sure it's something really, really big. (Reminds me, I wonder where I put Treasury Secretary Henry Paulson's telephone number?)
Rick Moen [rick at linuxmafia.com]
Quoting Jimmy O'Regan ([email protected]):
> I've been working on Polish-English machine translation for a while, > and having parallel text is something of a must for me. So, I OCRd > some books I found on the internet, proofread them, and sent them to > Project Gutenberg. Under American Law, that's perfectly legal--the > books are in the public domain--but I'm not American, and am > possibly guilty of copyright infringement under EU law, because EU > copyright law has a bunch of ideas that American law doesn't, such as > the 'natural rights' of authors (not that it isn't frequently referred > to, but it has no constitutional basis in American law) and 'sweat of > the brow' rights. The act of sticking a book on a scanner may be > enough to create a new copyright in the EU, in which case I may be > screwed--it's highly unlikely, not least because nothing can stop PG > from distributing the e-texts, but it's a possibility.
I assume you're referring to the "moral rights of authors" codified in the 1928 Berne Convention for the Protection of Literary and Artistic Works treaty's section 6bis: right of attributed authorship, right of anonymity, and right to preserve the integrity of the creative work. (This is distinct from any economic rights, and can be waived or in some places assigned to the custody of others, but not sold.)
The USA's position at the time it ratified the Berne Convention was that no specific legislation was required to implement authors' moral rights, because they were adequately covered by existing tort laws of other sort. This assertion was proabably disingenuous when stated: It's probably closer to the truth that Congress merely was suspicious of legal innovations coming from Continental civil-law tradition -- but there was some truth in it.
A survey of the gradual acceptance of the concept: http://www.harvardilj.org/print/58?sn=0
> It still remains to be seen if the court agrees that this is what's > happening in this case. OTOH, the RIAA have made statements recently > to say that they won't be chasing after people in this manner in the > future. I'd be surprised if that's the truth, but there's at least a > little hope.
I suppose it is theoretically possible that RIAA might tell the truth one day, yes -- if only through mishap.