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Coding Fair Use 109

Posted by michael from the stuff-to-think-about dept.
An Anonymous Coward writes: "A report from CFP2002 on the tension between making fair use clear and retaining ambiguity to facilitate the application of fair use to future technologies." Lots of good papers available from the Fair Use By Design workshop and the conference in general.
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Coding Fair Use More

Coding Fair Use

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  • retaining ambiguity

    write all laws and regulations in verse.

  • Do The Math (Score:4, Insightful)

    by stoolpigeon ( 454276 ) <bittercode@gmail> on Wednesday April 17, 2002 @12:19PM (#3359457) Homepage Journal
    As the article states, any system to try and restrict access to content will be broken.

    You can keep passing laws but you cannot enforce the laws already in place as there are just way too many laws and even more people to break them.

    If you can't enforce all the laws for all the people, then of necessity you must choose which laws you will enforce, when you will enforce them and who you will enforce them on.

    In the world we live in right now- resources are not going to be primarily aimed at keeping content locked up. There are larger, more pressing issues. (like staying alive)

    Content creators need to take some of that creativity and look for new ways to make it self sustaining.

    It makes me think of self defense moves where you use the weight and inertia of a large aggressor against them. Content creators need to stop fighting what is an unstoppable force and find a way to ride that force to succes.

    Easy to say, hard to do? Sure but what is worthwhile that isn't difficult?

    .
    • I agree with you ...

      and I hate to ask ... but who is to enforce these laws?

      Currently, I would say that the **AA's of the world are trying to play both lawmaker (DMCA) [loc.gov] and police (RIAA extortion) [slashdot.org]

    • In the world we live in right now- resources are not going to be primarily aimed at keeping content locked up. There are larger, more pressing issues. (like staying alive)

      Exactly, which is why crap like DMCA, SSSCA, etc continue to be foised on the US by dumb-ass Congressmen beholden to their lobbyists. Big Companies know that eventually they will be able to get something through if they enough times, witness DMCA.

  • Posted on Tue, Apr. 16, 2002 Can We Design Fair Use into Content? Posted by Dan Gillmor I'm at the Computers Freedom and Privacy conference in San Francisco, attending a workshop on the topic of "fair use" -- a term that has many descriptions and applications. There's a lot of law on the whiteboard, including a variety of doctrines that show up in black and white in copyright law -- Sections 107, 110, 108 and a host of other elements. The vocabulary often incorporates more than what many copyright lawyers tend to discuss. Ann M. Bartow, assistant law professor at the Unviersity of South Carolina, argues that the law should ultimately incorporate what people do in real life -- and that we have to reduce the complexity inherent in today's statutes. Here's her presentation [cfp2002.org] (PDF; 264 KB). "Don't we deserver a copyright law we can understand and follow?" she asks. Fred von Lohmann, senior staff attorney at the Electronic Frontier Foundation [eff.org], is arguing for ambiguity. He thinks copyright law needs to leave room for innovation as new technologies come along. An audience member asks if this ambiguity is what lets lawyers threaten people with lawsuits for non-infringing uses, intimidating them into taking down Web content that should remain public. We need a floor, von Lohmann says, not a ceiling on permissible activities. The floor for the entertainment and other "content" industries is increasingly clear. They don't fundamentally believe in fair use, and they see technology as a way to turn everything into pay-per-view -- a system that would eliminate fair use almost completely. Turn that around. Can fair use be turned into code? That is, can we use technology to ensure it, just as we can use technology to take it away? Stefan Bechtold, from Stanford Law School, thinks it can -- at least in some circumstances. But the law is still going to be needed, he says. He thinks digital rights management can be progressive, while law is conservative. The key word is "can" -- and the evidence is not behind him. Both, as currently established, are highly restrictive. What's progressive is technology, which makes hash of attempts to control content. Any digital rights management system is going to be broken.
    • Like this UserFriendly's [userfriendly.org] version of the law that the RIAA want:

      - 'Thou must comprehend that the "I have a right to do anything I wish with the music in this CD" attitude is harming the industry'

      - 'By ripping MP3 Thou art harming the poor artists who render their souls into such sweet tunes'

      - 'Think of the starving musician who hath slaved into the dark hours! Think of the powdered cheese food thou art taking out of his mouth when Thou doth copy of his music!'

      - 'Don't trouble Thyself sending them money... We can pass the money on to him for Thee!'

  • RIAA in a nut shell.. (Score:5, Interesting)

    by Em Emalb ( 452530 ) <ememalbNO@SPAMgmail.com> on Wednesday April 17, 2002 @12:21PM (#3359473) Homepage Journal
    this quote from the article sums up for me everything wrong with the **IA.

    "The floor for the entertainment and other "content" industries is increasingly clear. They don't fundamentally believe in fair use, and they see technology as a way to turn everything into pay-per-view -- a system that would eliminate fair use almost completely."

    This is what is wrong with the US today.

    • Actually, what is wrong with the US today is people not taking responsibilty for their actions, blaming others, or their age, or TV, or drugs, or...

      This is a slight offshoot where corperations mask the individual's responsibility for doing "bad things" in the name of the Buck. imo of course
    • This is what is wrong with the US today.

      I would have argued poverty, crime, the technology gap, drugs... Gotta love Slashdot, sometimes, when "the problem" with America is intellectual property issues.

      • "I would have argued poverty, crime, the technology gap, drugs..."

        Hmmm... That's not really scoped very well:

        Poverty: Been around since day one - Unfortunately the HAVES don't really consider it a problem.

        Crime: Been around since the beginning of civilization. Part of human nature, it's never going away as long as we're still human. Not just something "wrong with the US today"

        Drugs: Been around since before civilization (Opium, pot, etc.) - Part of human nature, it's never going away as long as we're still human. Not just something "wrong with the US today" - Many, possibly a majority, would disagree that it's even a problem. Best way to get rid of that is to just open the floodgates, evolution in action, those that can't handle it are removed from the gene pool.

        Technology Gap: Hmmm... For 99 out of 100 cases, it's a laziness gap. If you are too poor, and you really want one, then use two of the above to obtain a computer - steal a computer, or sell drugs until you have enough money to buy one. Your choice.

        Decline, right on time. What happened to the dream sublime? They're building empires... (Queensryche, Empire)
    • I figure pretty soon they gone find out exactly how much value they product really have. No fair use? What they gone do when use period takes a dive cause people get tired of gettin ganked every time they turn on they radio or they TV.

      And now that they making it like just listening to a song without writin a check is a crime in principle, its not like they can easily backpedal to get they users back. Tryin to re-introduce fair use just gone make them look like punks, and bust open a pandora's box of justifications for all kinds of piracy. I can hear it now "I'm fits ta help the RIAA win they business back by burnin copies of this CD fo my homies!"

      When people gone recognize that this kind of scorched earth campaign is bad for everyone concerned?
      • What they gone do when use period takes a dive cause people get tired of gettin ganked every time they turn on they radio or they TV.

        Assert that the fall in sales is surely due to a vast increase in piracy, and that the only solution is for the government to increase taxes and give the money directly to the big producers.

    • I liked Ann Bartow's bit better. Here's a very insightful quote from her:

      New, rigidly enforced restrictions on use and access to copyrighted content, especially if accompanied by increased costs, may motivate otherwise law abiding copyright users to circumvent copyright controls (or at least to feel increasing sympathy for those who do so). While they may facilitate higher profits and more control over users, these restrictions do not appear to foster enhanced or principled respect for copyrights. Instead, they may actually be undermining the perceived legitimacy of the copyright laws among the copyrighted work consuming populace.
      Glad to know someone is in touch with the big picture. She seems very concerned that the attempts to "lock down" content might lead to the public abandoning the whole copyright concept.
    • Firstly you have to realize that this is all in reaction to the fact thet people on the net took "Fair use" and used it unfairly. Yes they should be stopped from removing all trace of the expectation of fair use (Although it is not now nor has it ever been a legal right). But at least realise WHY this is happening. Napster was a terrible thing. Just because you CAN doesn't mean it's your RIGHT to...
      • I hear you. I have a friend who loves nothing more than pirating copies of software, music, whatever. He's even scanned in magazines and books and uploaded them. He made me aware of a particular subculture where warez are currency. He wouldn't dream of paying $2 for a music CD on sale, but he would gladly spend $4 on blank CDs to burn stuff so he could trade for that very same music online.

        So a couple of weeks ago I tried to get him riled up about Holling's despicable bill. I told him the consequences if it would pass. He didn't care. "So what if it becomes illegal", he said, "I'll always find a crack for it, just like I do now."

        The very sad thing is that he is not alone.
      • Fair use is not and has never been a legal right?

        What?

        Information, ideas and the like are literally free. The constitution grants Congress the authority to grant inventors a monopoly for a limited time, after which said ideas and inventions return to the public domain.

        As a way of encouraging inventions for the public good, the constitution allows Congress to take away our rights to them for a while so the inventors can profit from them. Clear in that is that all IP is public domain, and we willingly give up our rights for a "limited time" as a means of encouraging more development.

        Napster was not a terrible thing, just as guns don't kill people. The widespread use of Napster was a backlash against the sick joke that IP has become. I own several DVDs. Why can't I watch them in Linux? Because IP law is out of control. Why can't I play new CDs in Linux? Because IP law is out of control. Why can't I rip my new CD so I can use my PC as a jukebox or go jogging with an MP3 player? Because IP law is out of control.

        After enough unreasonable intrusions on what I feel like doing with things I bought, I not only lose respect for all IP law, but I vote for (and donate to) anyone who isn't an incumbent (and write to tell them why) and seriously want these companies that interfere with my life to lose money. If you hurt your customers, expect your customers to hurt you. If you abuse your constituents, expect them to abuse you in the voting booth.

        Change is on the way. The jails are already overcrowded, so they can't lock up folks with MP3s. Maybe this time the change that comes won't benefit the companies at the people's expense.

    • This is what is wrong with the US today.

      What, that people like to make as much money as possible? That they want to reinterpret or alter the laws to do it? Or that consumers are so hung up on mass-market entertainment that this is even an issue?

  • Heh (Score:3, Interesting)

    by The Cat ( 19816 ) on Wednesday April 17, 2002 @12:21PM (#3359475)
    Looks like we might be on the right track [heavycat.com] too.

    This is only going to become more common. Companies have to realize that people are not "consumers" and that they want to particpate rather than just observe. All of the best things happening in the game industry are happening because of the participation of people in the market. Hopefully this will expand, and be encouraged by more astute businesses.

  • "Making fair use clear" pretty much amounts to an oxymoron. The impossibility of "defining" fair use just means that IP do not make sense altogether, that's all.

  • Everything as pay per view (Score:4, Insightful)

    by Alien54 ( 180860 ) on Wednesday April 17, 2002 @12:23PM (#3359497) Journal
    Fred von Lohmann, senior staff attorney at the Electronic Frontier Foundation, is arguing for ambiguity. He thinks copyright law needs to leave room for innovation as new technologies come along.

    An audience member asks if this ambiguity is what lets lawyers threaten people with lawsuits for non-infringing uses, intimidating them into taking down Web content that should remain public. We need a floor, von Lohmann says, not a ceiling on permissible activities.

    The floor for the entertainment and other "content" industries is increasingly clear. They don't fundamentally believe in fair use, and they see technology as a way to turn everything into pay-per-view, a system that would eliminate fair use almost completely.

    This impulse has been around for a while under different names.

    It used to be known as "Killing the Goose that Lays the Golden Egg"

    Fair use need to be somehow writtin into law, but I do not see a quick way around someone who decides to sell something only on a pay perview basis. With a wide enough reach (such as the Internet) you can generally get enough people to support the market, even if they are only the tiniest fraction of the population.

    Example: Spam

    • Actually... The courts have been getting around "pay per use" for years:

      Example 1: Nailing IBM for illegal practices when they would "lease" mainframes but never sell them during their time as monopoly holder.

      Example 2: Ruling "licenses" on books and records illegal at the turn of the century when publishers attempted to require consumers to never sell used books below a certain price.

      Make no mistake, copyright has been granted and worked well for buying whole copies of a work. However, the courts have never allowed "pay per view" as the only offering of a copyright holder. It has never been shown that this model works fairly or equitably.

      Don't forget, copyright is an artificial monopoly granted by the state. So it's up to the state to regulate that monopoly.
    • In Europe a number of (TV-)publishers (Kirch media in Germany, ITV in the UK) are getting in big financial problems because they invested billions of dollars in sportsrights on the premisse they could earn it back with pay-per-view.
      It turns out that the audience just doesn't want to watch football on tv when it costs them by the minute.
      I think the situation on the web is the same. Unless the content you use is available for some fixed sum per subscription it will not arouse any significant interest.
  • From the report:
    Ann M. Bartow, assistant law professor at the Unviersity of South Carolina, argues that the law should ultimately incorporate what people do in real life -- and that we have to reduce the complexity inherent in today's statutes.

    It is going to take a long time to work out the struggles of the RIAA and people's need to have fair use of the media they purchase. It seems like it is going to be tough for the big media companies to build a digital format that I can't copy to my friend's computer, but I can put in my computer, mp3 player, or stereo.

  • "ownership" of content? (Score:5, Insightful)

    by happyclam ( 564118 ) on Wednesday April 17, 2002 @12:26PM (#3359522)

    The piece makes mention of the entertainment industry trying to move everything to pay-per-view. Clearly, that would be ideal for them. But lost in that worldview is the idea that once I "buy" a bit of content, it's "mine" to do with as I choose, short of republication.

    Example: I buy a book. I can read it zero or more times. I can pull pages out and rearrange them or stick them on my wall. I can make a photocopy of portions and keep those pages in my car. I can give the book to a friend, but I'm not allowed to copy the book and give it to a friend.

    This right is, of course, what the fair use clauses are meant to protect.

    Copyright law is really (or should be!) about publishing--no one but the owner of the "rights" to a piece of work has the legal right to publish it.

    Perhaps it's all semantics (but isn't that what the law and politics are about?), but it seems to me we should stop talking about copy rights and start talking about publish rights. Put the battle into the right geography: It's not about making copies but about distributing copies.

    If we managed to change the language to a language of publish rights instead of copy rights, then perhaps terms like "piracy" would simply vanish. And, it seems to me, coding protections for publish rights while also coding protections for fair use rights would be less ambiguous and more achievable.

    • Re:"ownership" of content? (Score:2, Insightful)

      by Anonymous Coward
      I can make a photocopy [...] I can give the book to a friend, but I'm not allowed to copy the book and give it to a friend.

      So (A) is legal, (B) is legal, but (A && B) is illegal. That's a non-linearity in the legal system and everyone knows that non-linear constraints are harder to enforce in general.
    • Unfortunately, the courts/politicians seem to think that the publisher has all the rights, including the right to grant or revoke any access "priveliges" as they see fit. That is, they do not have the obligation to provide you with the ability to make a digital copy, or even a high-quality analog copy.

      I think it was in the DeCSS case where the court basically said that if you want to copy a movie for some fair use application, you could point a video camera at the TV screen. That this is not the quality you want is too bad for you, and the publisher does not have to allow you to make a better-quality reproduction. So there's the rationale for maintaining that fair use is being upheld even in the face of the DMCA.

      Not that I agree with that interpretation, but that seems to be the current legal thinking. And I suspect that a great deal of the upcoming copyright battles will be fought over this issue. If I have the right to a digital copy, then I have the right to break the copy prevention measures. If I don't have that right, I'm "trespassing" or "a pirate" or whatever inflammatory Valenti-ism you wish to use.

    • Copyright law is really (or should be!) about publishing--no one but the owner of the "rights" to a piece of work has the legal right to publish it.

      Please forgive the US-centric nature of this post.

      No. Copyright law is really (and should be) about promoting the progress of science and the useful arts by encouraging Authors and Inventors to share their ideas.

      At the time when the Congress was empowered to create a Copyright law, it seemed very reasonable to achieve that goal by (among other things) offering authors a limited monopoly to the publishing of their works.

      There is no reason to believe that such a limited monopoly is the only way to go about achieving the goals which the Constitution grants Congress the task of achieving.

      If, for example, it were determined that such a limited copyright had no effect on promoting the progress of science and the useful arts, it could be argued such a determination would remove Congress's authority to provide any sort of monopoly rights to an author.

      The "exclusive copyright monopoly for the author" is by no means set in stone, but that's exactly what todays publishers what you to believe.

    • You are unfortunately incorrect. The owner can (and in these cases) does give up the rights to a piece of work when they transfer those rights to a record company to produce and publish a piece of work.


      The solution is not with the consumers, it is with the ARTISTS. When the artist no longer give up those rights, they are empowered to implement fair use and give us the rights we desire.


      A corporation by nature is about making profit and will not be concerned specifically with fair use. The problem must be tacked at the correct level - and going after the corporations isn't it.

  • My vote for Fair Use. (Score:5, Interesting)

    by volsung ( 378 ) <stan@mtrr.org> on Wednesday April 17, 2002 @12:32PM (#3359568)
    I think digitalconsumer.org [digitalconsumer.org] has the ideal set of "fair use" requirements:
    The Consumer Technology Bill of Rights

    1. Users have the right to "time-shift" content that they have legally acquired.

      This gives you the right to record video or audio for later viewing or listening. For example, you can use a VCR to record a TV show and play it back later.

    2. Users have the right to "space-shift" content that they have legally acquired.

      This gives you the right to use your content in different places (as long as each use is personal and non-commercial). For example, you can copy a CD to a portable music player so that you can listen to the songs while you're jogging.

    3. Users have the right to make backup copies of their content.

      This gives you the right to make archival copies to be used in the event that your original copies are destroyed.

    4. Users have the right to use legally acquired content on the platform of their choice.

      This gives you the right to listen to music on your Rio, to watch TV on your iMac, and to view DVDs on your Linux computer.

    5. Users have the right to translate legally acquired content into comparable formats.

      This gives you the right to modify content in order to make it more usable. For example, a blind person can modify an electronic book so that the content can be read out loud.

    6. Users have the right to use technology in order to achieve the rights previously mentioned.

      This last right guarantees your ability to exercise your other rights. Certain recent copyright laws have paradoxical loopholes that claim to grant certain rights but then criminalize all technologies that could allow you to exercise those rights. In contrast, this Bill of Rights states that no technological barriers can deprive you of your other fair use rights.

    • Re:My vote for Fair Use. (Score:2, Interesting)

      by einer ( 459199 )
      I love this, but it's a goddamn pipe dream. There is every indication that the RIAA/MPAA has a copy of this list and is systematically invalidating all of these rights through questionable legislation and barratry. According to them, any official ratification of this bill will put them out of business and take the entire economy of the world with them. In reality, they stand to gain by selling shifting technology that's easier to use than what's out there now or producing multiple inexpensive (disposable even) formats of their content.
    • In writing "Ideal", you suggest that this is exactly what you want. I'd consider it a start.

      There are several things I'd like to see additionally. For example;
      • The right to sell a used copy of a film, like you can do a book.
      • The right to sell a used copy of any software, like you can do a book.
      • The banning of software licenses. Software copies should be SOLD, not licensed. If I buy something from you, you should have no right to regulate how I choose to use that item.
      • The banning of use-limiting technology that harms the consumers, sorry, citizens (such as DVD regionalization). See above. Or perhaps, rather, the outlawing of enforcing such technology. What I do with my DVD is for me alone to decide.
      This is just a start. For example, if you consider the law to be a sum of the generally acceptable morals, then peer-to-peer file sharing should be allowed and legal. Judging by the volume of Napster, Grokster, DirectConnect etc, this is considered acceptable activity by citizens. So fucking what if some corps think it damages their bottom line? Get a new business model. To quote somebody else; the law is not indended to protect obsolete business models. If nobody wants to buy your stuff, you had damn better get into a different business, and that's it.

      Phew, got into an intense rant there. Anyway, I think you get my idea. I think the law has to shift more than these basic points, but they are a good start of making the public (and lawmakers!) aware that there is another tray on this scale.
      • I have only one problem with point number 3 in your argument. I think that you should have the option to license software, or to purchase it. If I am a company, would I rather buy 40 copies of application A, or buy a site license and install the software on each new PC I need it on?

        On the other hand, it is easier for me to buy 2 copies of some game to play on multiple computers at once then it is for me to license those two copies.

        --xPhase
    • * Insofar as almost all artistic production is built on the foundation of past artistic production, and insofar as quoting, sampling and reframing existing artistic works in order to create new artistic works is a natural form of artistic production and a healthy, creative response to one's cultural millieu, such quoting, sampling and reframing shall not entail a copyright infringement when the result is an identifiably distinct artistic production.

      * Likewise, quoting, resampling and reframing as part of critical practice and in research shall not entail enfringment.
    • I don't like the idea of any finite list of rights. Best to list what is disallowed--everything unlisted would be allowed.

  • please restrict fair use (Score:2, Interesting)

    by Hoo00 ( 123566 )
    A few of these articles [cfp2002.org] has this heading: "Please do not cite or quote without permission." This says much more than the article itself. Oops, i just quote from the article!
    • I don't see anything wrong with having to ask permission to cite or quote. It allows the creator to have some say in how portions of his/her content is distributed. At least for printed material, it can provide some psychological security against being quoted out of context.

      The problem comes in that we, as a whole, are no longer reasonable in allowing permission. Who was to blame first in the whole RIAA/P2P debacle? Pick a side - it doesn't matter, really. Everyone has chosen their positions, no one is willing to budge, and the only thing that will ever solve this is one big courtroom brawl.

      Frankly, I'm so disgusted with the whole mess, I've stopped buying music, downloading, or providing music to anyone.

      When did we, as a society, lose our ability to be "reasonable"?
      • Can I have permission to quote your message above, in order to compose this reply?

        Some things are so burdensome that they create an atmosphere where the majority of people won't do something, even though they've got the right to do so. That's something we should try to avoid. That's why you can quote someone without their permission.

      • I think that the freedom to criticize and research freely outweighs the permission of the originator of the work. If I'm going to be doing a historical retrospective of Kevin Costner's work, I'm sure he may want me to NOT quote from the screenplay for "Waterworld," but that's just too bad. It's part of history, it's part of his output, and it'll be part of the work.
      • I don't see anything wrong with having to ask permission to cite or quote.

        Fair Use allows me to cite or quote small portions of copyrighted text without having to ask for permission.

    • "Please..." doesn't mean "you are bound by law to..."

  • The speed of laws (Score:1, Interesting)

    by dryueh ( 531302 )
    What's progressive is technology, which makes hash of attempts to control content.

    This is what it all comes down to, in my opinion. The rate at which things change in regards to technology, and thus web-related issues, is astronomically fast when compared to the evolution of our current economical system (where copyright laws take hold). Trying to constraint the content of something that changes so quickly isn't feasible. The people who are likely proposing such measures are most likely the people that don't really understand the implications of it (that could be expressed by IT-savvy individuals with a background in law/commerce).

    There may be some general statements we can make, and even some extreme cases that we can easily restriction, but creating steadfast regulations that are intended to be applied wholesale ain't gonna cut it.

  • All my commercial software is licensed (Score:5, Interesting)

    by JordanH ( 75307 ) on Wednesday April 17, 2002 @01:10PM (#3359766) Homepage Journal
    I'm not sure how Fair Use would apply to commercial software I use. All that I use, AFAIK, is both copyrighted and licensed.

    From what I understand, the book publishers tried to license all their works around the turn of the century and this resulted in the "First Sale" doctrine we have now when the Courts struck that down.

    I'd be in favor of "First Sale" recognition for software, but until we have that Fair Use doesn't have much affect on me. Even if Fair Use would allow me to do something with software that I don't already do, the license would probably forbid it.

    Is there any chance that the Courts will just strike down the licenses for software? Are we to act like these software are only protected by copyright, including Fair Use provisions, to get this brought before a court?

    • We do have First Sale rights with software.
      In fact I beleive a judge recently ruled (ref anyone?) that portions of a EULA that restrict rights given to a person at First Sale (when you bought it in the store) are invalid. For example, if you buy a peice of shrink wrapped software, and the EULA says "You may not resell this software". That is non-enforcable because it restricts a right that you have simply from buying the product at the store.
    • It's not the lack of a "First Sale" doctrine in software that makes it licenseable. It's the fact that the courts ruled that making a temporary copy of the software in RAM (i.e. using it) was an infringement of the author's copyright. This brain dead interpretation was made in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) among others.

      This allows software publisher to force users to agree to EULA's, because otherwise you can't legally use the product. As far as I know, if you don't use the software or agree to the license, you can still exercise your First Sale rights and resell the application, just like a book.

      • Someone please mod the parent up as Informative. Thanks.

        Has anyone seen any exposition on what happened to establish the First Sale doctrine in the first place and how the publishers were thwarted in their efforts to license books? I'm interested in reading up on this, if there's a source for it. This page [lib.ks.us] has a bit of the background and also discusses Fair Use and some other important issue, but it's just an outline.

      • But it's truly one of the most cracked legal opinions [cornell.edu] I've ever heard of.

        For instance, read the following snippets of copyright law and case law used to justify the decision:

        The Copyright Act defines "copies" as: material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. (17 U.S.C. 101.)

        ...

        A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

        And from Apple Computer, Inc. v. Formula Int'l, Inc., 594 F. Supp. 617, 621 (C.D.Cal. 1984), which held that copying programs to ROM was not necessary for their use because the programs could have been copied to RAM:

        RAM can be simply defined as a computer component in which data and computer programs can be temporarily recorded. Thus, the purchaser of [software] desiring to utilize all of the programs on the diskette could arrange to copy [the software] into RAM. This would only be a temporary fixation. It is a property of RAM that when the computer is turned off, the copy of the program recorded in RAM is lost.
        On first reading of those snippets, it would almost seem as though the justices were arguing that RAM copies should not be protected by copyright law. Somehow they come to the exact opposite conclusion.

        The court first argues that the act of logging into a computer or looking at the operator logs can be termed "perceiving" the RAM copy of the software. This may be so, but I have a hard time wrapping my head around this conclusion because of its implications. If it's the RAM copy that you perceive when you run a piece of software-- rather than the copy on the disk-- then is free distribution of software on magnetic disks not prohibited by copyright law, because the information on the disk can't be perceived without being loaded into RAM? If loading a disk into RAM creates a separate copy, then it would seem that the original disk copy can never be "perceived", and is therefore not eligible for copyright protection. My head spins.

        The upshot of this opinion almost seems to be that you're not in the wrong if you redistribute unlicensed software on disk without ever loading it, or if you're caught with unlicensed software on an unplugged computer. In other words, you can stash all the Warez you like as long as nobody ever catches me with any "perceivable" copies (ie, turn your computer off before the FBI busts in).

        They then argue that the Apple Computer case provides precedent for their argument, as it uses the term "fixation" to refer to a copy in RAM-- even though the spirit of that opinion was to differentiate between "permanent" copies like those on burned onto ROM chips which can be protected by copyright law, and "temporary" copies like the one in RAM. Though on first read this decision might seem to be a perfect piece of case law supporting the legality of temporary RAM copies, the 9th circuit instead focuses on the term "temporary fixation" (declining to interpret this as equivalent to "transitory"), though this in fact seems to be the exact use the law itself was designed to protect! If by "transitory copies", the legislators were not referring to RAM copies, then what were they referring to?

        All in all, I begin to understand why people have such little confidence in the viability of any decision coming out of the 9th circuit.

    • Is there any chance that the Courts will just strike down the licenses for software?

      I sure hope so. 99% of the software licenses out there, including many open source licenses, are either illegal or a slap in the face of the legal principles of civilization.

      These licenses purport to be contracts. But they are not. There is no consideration. No possibility of negotiation. And no valid assent. Just because a license says you have agreed to something does not make it so.

      You walk into a store and buy a copy of Windows XP. Guess what? You now have the legal right to use that software, to sell your only copy of it, to make archival copies, to reverse engineer it, and to install it on any computer that you own. But when you go to try to install it, you see a license. This license is not a contract. There is no consideration, since the license does not offer you anything you don't already have. In fact, it attempts to take away legal rights that you already possess. There is no possibility for negotiation, since Microsoft was not present at the time you purchased it, nor are they present when you must click "I Accept". Nor is there assent, even by clicking that button that says you assent. Because you already have the right to install the software, pushing that button is legally meaningless. Furthermore, you can always get someone else to push that button, so there is no way in hell that Microsoft can even begin to demonstrate that you assented to the license.

      I'm waiting for the day when some major commercial software package comes with a only a single line copyright: Copyright 2002 Fubar Company. How much more intellectual property protection does a company need than that?

      Shrink-wrap, click-thru, and the every increasingly popular "use-wrap" licenses are fraudulent pieces of legal tripe. They make great tools for intimidation, but their legal worth is less than that of used toilet paper.
    1. Some day, you are going to die. Get over it.
    2. Water is wet. Get over it.
    3. Information can be duplicated. Get over it.
  • We are in the days of transition between an economy of scarcity and an economy of plenty. In years past the technology to create has been relegated to a select few. Now, it is open to all.

    This is the time when all of those entities and industries which are dependent on the economy of scarcity are going to try to enforce a *false* scarcity on the people. They will resist changing their business models to fit the economy of plenty as they will see it as de-valuation of their assets.

    The rule is plain and simple: When a paradigm shift occurs you either change with it or you get left behind.

    GJC
  • That this conference will have any effect? All the decisions are going to be made in court, and it will be a political fight. As with any political fight, the people who control public opinion will win.

    In this particular case, public opinion is way out of control. This is not meant to imply that there is a problem, just that nobody can convince 100+ million internet users that they should give up their right to fair use.

    I thought of this: if I don't sign a non-disclosure agreement with someone then anything I see and anything I hear I can rightfully tell anyone I choose about it.

    If a person creates an AI with sufficient apparant intelligence to be simi-autonomous, and then that AI absorbs content information, then would it not be free to disiminate that information, from memory, as it saw fit? If I had a photographic memory and could reproduce another person's origional work of art from memeory with no flaws then wouldn't my work be considered my own, to do with as I please?

    An artist who copies a Rembrandt ows no royalties to the current owner of the painting. Let's take someone more recently famous: Tomas Kinkade [thomaskinkade.com]. If I paint a copy of one of his works from memory, then that work is my own to sell, or give away, as I see fit.

    Would an AI that I owned, having a perfect memory and perfect ability to replicate a work, also have that right?
  • The real long term fact of life is that there is no longer a need for publishers when the cost of replication is zero. Why do band need labels if there is nothing to label? If an album is $1.00 how many more folks are going to be willing to pay for it on line? I'll bet the bands are going to see a lot more return when the labels go away. You are going to see the same thing in ASCII publishing. You will also see the Amazones go away too. Who need an intermediary when an author can pop up a web site for next to nothing and pay a financial intermediary (visa, paypal, etc) 1% to help with the cash transfer.

    The DOT.COMs had it all backwards. The net is a great way to make money when it is used to eliminate intermediaries not to build new middlemen.
    • There's two problems with your point of view here, as I see it.

      The first thing is that it is still difficult to find something by an artist online unless you already have the information where to go. If I want something by "band X", and do a google search for "band X", I get a lot of crap I don't want - like idiotic people's playlists (like I care), and even some useful information that may not be what I'm looking for (like lyrics or discographies). It's a lot easier to go to a chain and find what I'm looking for.

      The second, and more important part, is how did I hear about the artist to begin with? The majority of the money spent is not in duplication costs, it's in production and marketing. Lot's of artists wouldn't succeed without them (which would probably be a good thing), but the fact remains that the largest contribution of the record companies is not towards distribution.

      Other than that, I really agree with you. I think my first point is minor, but the second point is pretty major. I mean, in a way, the record companies act like filters (wether we like them or not), and if publishing music was a zero cost proposition, then there would simply be too many people making music without a good way for you and me to find what we like, let alone filter out what we don't like. The real issue is that I can't buy from a group I've never heard of. That's what the record companies do.

      Now, eliminating record companies could eliminate the payola schemes and we might see much more equity on the airwaves... Now THAT would be a good thing.
  • Laws that restrict the people from doing something that they want to do and that they perceive as being "victimless" can never hold. Prohibition was one such law. Alcohol was illegal, so only criminals had it. Today's drug laws are similar. Those that want it can get it and a law will never have an impact on that as long as the demand is present.

    Digital anti-piracy laws are not much different except that they are designed to protect the monied businesses (artists themselves rarely) rather than protect people from themselves. (arguably) Todays computers are like having a wisky still in every house. The government makes corn illegal, people will use potatoes. The government makes the sale of stills illegal, people will make their own or convert bathtubs. Eventually things will hit some kind of balance. One additional wrinkle is money. (isn't it always?) Will the gov't break peoples doors in and smash their computer equiptment for ripping CD's? Let's hope we never get to that.

    RM
  • I get so tired of seeing Slashdot users all wound up about the same thing over and over again and attempting to come up with a solution that relates to only the consumer and the corporation that sold the goods.

    This in itself will not solve the problem nor will anything be accomplished in this manner. Corporations have legal rights and have to enforce those rights. And that's fine, they should. What people don't seem to realize for some bizarre reason is that the content PRODUCERS are the ones that give these rights to the corporations. When they transfer rights over to the corporations - its over, stop complaining... nothing will change. What needs to happen is that the ARTISTS need to establish a relationship with the CONSUMERS such that the artist retains the rights and has the ability to implement fair-use. If an artist wants to grant you specific rights to copy stuff for free and such - you must get that from the ARTIST.

    Too many times we have heard tales of starving artist through corporation and such to sway legislation to stop people from making copies. If the corporations never have the rights transferred to them, this becomes unnecessary as the artist can make money themselves OR through a corporation that could be given LIMITED publishing rights. This is when the tide will turn, and not before - because corporations do and should have rights to protect anything they own and right now they own the rights to the content we want to copy. Until that changes, we the people are screwed and can't do much about it.... legally anyways.
    • I used to think like this. I'll stick with your terms of artists and corporations to keep it simple.

      But it finally sank in that any limitation that you think of as applying to the corporation is actually a limit on the artists. The corporations have already done a bang up job of screwing over the artists, they really don't need any help from the government to further limit the artists ability to sell their creative output.
      • Right - attacking the corporation is a pointless endeavor. If you aren't interacting with the copyright owner then there will continue to be issues. If the independent artist can't be heard on the radio or on the net to the extent that they can make a living - you can bet that the situation we're talking about has a 0% chance of changing because you're assuming that the goal of a business is to care about the consumer.
        • I said that what you thought was a restriction on the corporations would actually be a restriction on the artist. I make no assumptions about the goals of the corporations.

          If you did see some law with a title like "Creative Rights And Protection Act of 2002", you would find upon reading it that while the Congresscritter who sponsrs it will claim to be doing it for the artist, the actual details will show that the CRAP Act of 2002 will wind up leaving the artists worse off than they are now.

    • To quote the parent:


      This is when the tide will turn, and not before - because corporations do and should have rights to protect anything they own and right now they own the rights to the content we want to copy.

      I have two issues with this, the first is well said by Robert Heinlein


      "There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back."

      The second is that we, as citizens have granted these rights you speak of to the cooperations. We also have the power to take away these 'rights'. I feel that several things are obvious:

      • Copyright legislation is out of control and is not serving the any where near the obvious intention is was set out to:
        To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
      • Artists are moving towards having direct interaction with their audiences. The problem is that record companies actively supress music by going for a small number of big names. The record industry is kick and screaming it's way into this new paradigm (crap word, I know). The are actively work to hamper this from happening... so its not just a matter of artist changing their ways, its is a matter the record industry actively trying to stop this trend.
      • I am not a 'consumer'. I am a god-damn citizen. I very purposely do not consume from the RIAA or MPAA. And I get by just fine without their crap.
      • Another quote:
        Until that changes, we the people are screwed and can't do much about it.... legally anyways.
        So what, we're just suppose to sit on our asses? If you keep doing the same thing, you keeping the same results. CHANGE, DAMN IT!
      • If you think a single word you say will change RIAA or MPAA you are sadly mistaken as they are acting on behalf of all these companies you want to take rights from. As long as artist turn over their rights to corporations - the problem will exist.

        • You are correct: words often do not accomplish much. Typing here at slashdot often accomplishes even less. However, you make the situation sound perfectly hopeless. It is not. There are avenues, in place at this very moment, in which a citizen of the US can influence that laws of our country. Is it perfect? No, probably not. Is it instant? No, thankfully.


          While you are on here at slashdot proclaiming nothing can be done, I am in the real world, keeping the faith and doing that which you say can't.


          Have a great day.

  • Original Idea (Score:1, Funny)

    by Anonymous Coward
    I have an original thought but my lawyer says I can't share it without a licensing fee

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