07-02-2004 09:16									#241
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quote: Originally posted by asleepathewheel I think its far more inaccurate to state that they are invalid on their face, which is what UR stated orginally which set off this barrage of legal blah blah. Far more inaccurate is actually being generous, as courts have upheld them, again look to ProCD.

Courts have also struck them down.

quote: Originally posted by asleepathewheel What is inaccurate about what I've said?

You contended that EULAs are generally enforceable, which is inaccurate.

quote: Originally posted by asleepathewheel I have gone through the cases quoted to me and explained what the reasoning and the repurcussions.

The problem is EULAs are by and large very harsh and oppresive -- go way beyond customary contract laws. It also seems there are more cases where the rulings are against EULAs than upholding them. In fact, in the cases where they were found valid, they were just covering old grounds, and probably were not necessary.

	07-02-2004 09:18									#242
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quote: Originally posted by Urban Ranger UCITA is supposedly an extension of the UCC that were to be adopted by various states individually. However, the formulation was such that it basically legitimize EULA as valid contracts regardless of opressiveness and other factors. So far most states have not adopted it, and it is generally considered a failure.

yeah I read up on it later, seems like a pretty bad deal. I knew a few of the people on NCCUSL, the group that drafted it (former profs) wish I could ask them about it. Passed in Maryland and Virginia (probably AOL and similar lobbyists in those tech heavy states). Failed in a couple more and counter legislation passed in a few more. Knowing two of the people on NCCUSL, I'm suprised that they would be so bought by the corps and be so near sighted. Disappointing, I'm glad I didn't personally care for either prof

Pretty dopey stuff, how it would disclaim damage done to your computer and would allow for more bugs as you would be buying it "as is".

	07-02-2004 09:39									#243
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quote: Originally posted by Urban Ranger Courts have also struck them down. You contended that EULAs are generally enforceable, which is inaccurate.

Sure courts have struck some parts of them down, just like any type of contract case.

EULAs are generally enforceable. They are not enforceable when they are unconscionable, ie violate public policy, however that's a very difficult standard to satisfy. Its very rare, especially in a merchant to merchant exchange to prove unconscionability.

And you have to realize that when those parts of the EULA are struck down, the rest remains intact. Ie, If you win a case on part of the EULA, say to benchmark (like in one of your examples) WinXP, then you can benchmark it. However, you still are bound by the agreement not to dissasemble or reverse engineer the code. So even if you get a part struck down, you are still bound by the vast majority of the EULA. Hence the generally enforceable part.

I think we'll just have to agree to disagree on this. I enjoyed the sparring, its good to keep me on my toes, however I feel like we are begining to beat a dead horse on this one.

	07-02-2004 09:39									#244
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quote: Originally posted by Whaleboy Not to me, hence my argument that information once publicised is free as in GPL free. I guess we'll have to agree to disagree there.

I still think it's problematic to consider all information is free (not free as in speech, but free as in price, thus the GPL comparison is a bit off) regardless of the intention of the originator.

quote: Originally posted by Whaleboy One can still of course be paid for ones efforts using the model I proposed, where one is paid a sum to write a book (and communicates it to the publishers so they might offer another commission), who then produces a load of books and sells them yadda yadda.

That's not the model that should be used on a distributed distribution medium such as the Internet however.

quote: Originally posted by Whaleboy True, it's not exact, but my point is unaffected imo.

Again, it seems ethical to respect the wishes of the originator. If he expects payment, on what grounds could you argue against it?

quote: Originally posted by Whaleboy When it comes to information (and I assume consent to release it and sound mind), then yes it is ethical.

Only when said information is released to be used free of charge. The GPL can only be valid if the orginators of said information retain copyrights.

quote: Originally posted by Whaleboy By definition (mine), they are. One can either attack my distinction or my definition.

There are problems with your definition. You rely totally on the mode of operation instead of intention, but that is dangerous. Suppose you lose a notebook in the public. By your definition, you have released that into the public domain, but that's probably not what you want.

quote: Originally posted by Whaleboy Creativity could be argued to be finite but I describe it more as an emotion, or a disposition of the artist, that is not being sapped by my reading of his product. It cannot be capital except to oneself in other words.

It's not just an emotion or disposition though. Suppose you write a science fiction story, complete with characters and plots. All that takes resources on your part.

	07-02-2004 21:29									#245
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Reverse engineering for purposes of "interoperability" is specifically authorized by public policy. Thus it is not true that reverse engineering clauses will generally be enforceable except to the extent that it aids in suppressing piracy.

	07-02-2004 23:23									#246
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quote: Originally posted by Ned Reverse engineering for purposes of "interoperability" is specifically authorized by public policy. Thus it is not true that reverse engineering clauses will generally be enforceable except to the extent that it aids in suppressing piracy.

Please provide a citation. I love reading up on this stuff and I love being exposed to new knowledge, but I need background material to check out.

What is interoperabilty? I have no clue what that means or a context its used in. Perhaps this is another case of us talking past each other. I was referring to something like MS would do with windows. Free to use as you will, not free to crack the source code.

I don't mind being wrong, hell, you learn more from being wrong than being right, if you aren't afraid to admit it. I just need some sources to check out to see where my knowledge is lacking. I have enjoyed this debate, think I've personally learned a lot about things, which is why I'm here

	07-02-2004 23:35									#247
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Read Sega v. Accolade, a 9th Cir. opinion. Also, the Millenium Copyright act has a specific exception to permit reversing engineering for this purpose. Ditto the corresponding European directive.

	07-02-2004 23:37									#248
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Ned-

Are bootlegs considered piracy by either the Feds or the RIAA or artists individually?

I know that some groups actively encourage boots, by letting people tap into the sound system directly (DMB, Phish, etc).

If you are prohibited technically from boots, what about non album songs. Like covers and non released songs.


Just technically speaking on all of the above, I don't know where the RIAA stands on such matters. I know where I stand, I love listening to live concerts and the variation from the studio albums...

	08-02-2004 00:04									#249
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quote: Originally posted by Ned Read Sega v. Accolade, a 9th Cir. opinion. Also, the Millenium Copyright act has a specific exception to permit reversing engineering for this purpose. Ditto the corresponding European directive.

Interesting stuff.

I found this recent case (2003) Bowers v Baystate 1st circuit I believe, which upholds a EULA reverse engineering clause.

Apparently the distinction is that the previous case, Sega, was a pure copyright issue, in which the interoperabilty is an exception to normal copyright laws (ie, there was no contract issue at all). The bowers case involved an actual contract, the EULA ( I guess the other case didn't have a contract preventing this?) So what I'm getting from this is, Federal Copyright law will preempt everything, so you would normally be able to reverse engineer due to the interoperabilty exception, however this right to reverse engineer can be "negotiated away" ("" of course because its not truly negotiated ) through contract.

Of course who knows how another circuit would rule. And this doesn't seem sexy enough yet (nor enough circuit disagreement) for the supremes to rule on.

Thoughts?

The case: http://caselaw.lp.findlaw.com/scrip...11108v2&exact=1

	08-02-2004 00:06									#250
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Asleep, anything done without authorization of this nature is copyright infringement.

The problem, of course, is that there is no effective remedy is the bootleg copy is simply shared by people on the internet. That is the issue of this thread.

The bottom line is that the law should conform as best as possible to the facts on the ground, so to speak. Otherwise, people will simply break the law and respect for the law as a whole will diminish.

	08-02-2004 00:13									#251
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quote: Originally posted by Ned Asleep, anything done without authorization of this nature is copyright infringement.

This was what I was looking for.

I just wanted the technical rules without the commentary, as the commentary has rehashed points that have been discussed ad nauseum in this thread and elsewhere.


(if that came off a bit harsh, my apologies., not intentional

	08-03-2004 15:30									#252
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if I go to an art-shop, make a copy or take a picture of some famous painting, and hang it on my wall...is that stealing/piracy?

No. It's not even illegal.

I could even ask a painter paint me a copy of it. And that's legal too, as long as I don't try to sell it as an original.

So why is making a copy of a song or movie illegal?

	08-03-2004 16:09									#253
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I don't think it's illegal to make copies. It's only illegal when you sell the copies.

However, I think this thread was about the ethical basis of copyrights.

	08-03-2004 17:34									#254
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Some questions for those claiming that piracy is ok because the product may or may not be valuable, and so a 'free trial' is in order to determine it's worth.

Do you apply the same logic in reverse, that you will compensate the author(s) of the product according to it's value even if that exceeds the original price? Have you ever paid more than the asking price for a cd, game, book, or movie because you enjoyed it a lot? Do you seek out the owners of web sites you enjoy, paying them for their service, or make sure to follow all the links to advertisers/sponsers who allow them to run their site? Your favorite game, how many hours of enjoyment did you derive from it? Hundreds? Thousands? And yet what compensation did you offer the author. $30-$60?

If you want our economy to function in a manner where intellectual property laws are not necessary, you need to first act in a manner which would support such an economy. That means donating to charity, because we all benefit from other people's actions throughout our lives. Without that benefit we never would never even see our second day on the planet. It means honestly evaluating both physical and intellectual property that you receive through any method, and doing your utmost to make sure that you offer compensation for that value in your life whether it is demanded from you or not. That means producing value with no guarantees that you will be compensated for it, submitting your work to society as a gift and trusting that the same will given in return.

If anyone can honestly say they live their lives this way, I'll agree with you that ethically you should be receiving the value in your life free of charge, because you are giving it free as well.

	08-03-2004 20:24									#255
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quote: Originally posted by Saint Marcus if I go to an art-shop, make a copy or take a picture of some famous painting, and hang it on my wall...is that stealing/piracy? No. It's not even illegal. I could even ask a painter paint me a copy of it. And that's legal too, as long as I don't try to sell it as an original. So why is making a copy of a song or movie illegal?

Saint Marcus, the copyright in "famous painting," if it ever did exist, probably long ago expired.

But, assuming it did not, the photo or painter's copy is in fact a copy that is infringing. The question is whether your use of the copy is fair use.

Assuming copyright has not expired, hanging the copy on the wall rather than paying for the original is copyright infringement.

	08-03-2004 21:10									#256
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quote: Originally posted by Saint Marcus No. It's not even illegal.

I'm pretty sure it is illegal, actually. I know that it is to do so without permission at the art gallery my mother works at, and that alot of art galleries don't allow you to take cameras into the building.

	08-03-2004 22:38									#257
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^ I can't see taking a camera into a museum ever being illegal. What it would more likely be, is a violation of the terms by which the museum allows you onto their property (i.e. admission ticket which states, "no cameras"). The most they could probably do is throw you out and/or ban you -- confiscating the camera would be legally questionable.

	08-03-2004 23:00									#258
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quote: Originally posted by optimus2861 ^ I can't see taking a camera into a museum ever being illegal. What it would more likely be, is a violation of the terms by which the museum allows you onto their property (i.e. admission ticket which states, "no cameras"). The most they could probably do is throw you out and/or ban you -- confiscating the camera would be legally questionable.

But I don't think it's just a matter of the museum granting permission to photograph the work, but also the artist's permission. Sure, there isn't a law saying you can't take cameras into museums, but the museums make it a rule to simplify things because they are looking after the work for the artist, and it's one less thing they have to be responsible for. But still, that does make it illegal - and you can be fined, charged, sued, ect... if you break that rule. What action is taken would probably depend on what exactly you where doing and, if it comes to it, the feelings of the artist.

	08-03-2004 23:03									#259
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not to mention that flash photography damages older paintings...

	08-03-2004 23:12									#260
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The biggest problem to me is that the intellectual property laws vary enormously from medium to medium. It's just ridiculous to think that one activity is allowed with a book but not with a song, or that you can videotape a football game but cant make a dvd from a movie shown on HBO.

	08-03-2004 23:16									#261
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I think the biggest problem with ethics and piracy is when someone invokes the right of parlay. cuz thats just damn annoying.

	08-03-2004 23:29									#262
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Yeah!

	08-03-2004 23:46									#263
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Trying to make information property is like trying to turn a shark into a guppy. The very nature of information resists being made property of. In fact there is no such thing as intellectual property, it is a legal fiction.

If I steal your car, you no longer have a car and you are harmed. If I copy your CD you still have the CD and you aren't harmed at all.

Copyrights don't work. Artists and inventors have historically been diddled out of their expected wealth by accountants and middle men. I recall one artist saying that he would like to release his music into the public domain as Sony had not sent him a royalty check in over 20 years, despite continued sales.

The future of IP is the corporate hoarding of it. I fail to see how this benefits anyone but the hoarders. If you want to know what's wrong with copyright, the fact that Michael Jackson owns all of Paul McCartney's best songs without McCartney's consent should suffice.

	08-03-2004 23:57									#264
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quote: Originally posted by Agathon Trying to make information property is like trying to turn a shark into a guppy. The very nature of information resists being made property of. In fact there is no such thing as intellectual property, it is a legal fiction. If I steal your car, you no longer have a car and you are harmed. If I copy your CD you still have the CD and you aren't harmed at all. Copyrights don't work. Artists and inventors have historically been diddled out of their expected wealth by accountants and middle men. I recall one artist saying that he would like to release his music into the public domain as Sony had not sent him a royalty check in over 20 years, despite continued sales. The future of IP is the corporate hoarding of it. I fail to see how this benefits anyone but the hoarders. If you want to know what's wrong with copyright, the fact that Michael Jackson owns all of Paul McCartney's best songs without McCartney's consent should suffice.

there are lots of legal fictions. That something is a legal fiction doesnt mean its not functional.

And lots of things are abused. thats an argument for reform, not abolition.

Does Paul McCartney call for the abolition of copywright? McCartney has continued to produce cultural products - does he not copyright them?

If copyright damages the artists in question, they are free to release their work directly into the public domain, rather than copyrighting it or selling it to publishers who will copyright it. Thats their choice.

I see good arguments for shorter copyrights, and i see good arguements for insuring that technological attempts to stop copying dont infringe on fair use. This doesnt make an arguement that i see for abolishing copyright.

	09-03-2004 00:07									#265
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quote: Originally posted by Agathon Trying to make information property is like trying to turn a shark into a guppy. The very nature of information resists being made property of. In fact there is no such thing as intellectual property, it is a legal fiction. If I steal your car, you no longer have a car and you are harmed. If I copy your CD you still have the CD and you aren't harmed at all. Copyrights don't work. Artists and inventors have historically been diddled out of their expected wealth by accountants and middle men.

Which is why all the CPA's doing grunt work in big corporations are running to the entertainment industry to get rich, and why anyone with a little capital can get rich in that industry, and its so easy to get rich off inventors in venture capital.

What about the publishers and producers in books, music, movies, etc who've lost their shirts buying works from artists, producing them, and then seeing them fail to sell???

Publishers take risks. Theres a return to risk. Thats why artists use publishers, and dont just vanity publish.

	09-03-2004 00:44									#266
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quote: Originally posted by Osweld But I don't think it's just a matter of the museum granting permission to photograph the work, but also the artist's permission.

Whether the artist gets a say or not would depend on a couple of factors: does he still own the work (i.e. did he just loan the painting to the museum or did he sell it), and does he still have the copyright on it (i.e. did he transfer the copyright to someone else, or has the artist been dead long enough for the copyright to expire).

If neither is true, the artist's wishes don't have to be legally considered at all. Ethically/morally is a different question.

quote: Sure, there isn't a law saying you can't take cameras into museums, but the museums make it a rule to simplify things because they are looking after the work for the artist, and it's one less thing they have to be responsible for. But still, that does make it illegal

You contradict yourself. If there's no law against it, it isn't illegal. A museum, having no authority to pass laws, can't make something illegal. QED.

Breaking museum rules != illegal.

quote: - and you can be fined, charged, sued, ect... if you break that rule. What action is taken would probably depend on what exactly you where doing and, if it comes to it, the feelings of the artist.

The feelings of the artist are irrelevant. Either the law has to be broken or material harm done to the artist/museum in order to cause legal action. If you only break museum rules, and do no other harm, about the only recourse they've got is to throw you off the property and/or charge you with trespassing, I would think.

Standard IANAL disclaimer, of course.

To continue on a different track..

quote: Originally posted by Agathon In fact there is no such thing as intellectual property, it is a legal fiction.

Agreed to an extent. There are copyrights, trademarks, and patents, each with their own set of rights, and none of them have the degree of owner-control that tangible property does (i.e. you can't generally do anything with someone else's property without their say-so; the same doesn't apply to any of the above). I despise the term "intellectual property" for that reason -- an implication of a larger degree of control than that which really exists.

quote: Copyrights don't work.

Now that I don't agree with. They're being abused by some, definitely (i.e. Disney, grotesquely buying off Congress to keep "Steamboat Willie"'s copyight from expiring, and routinely putting their old movies "back in the Disney vault"), but on the flip side copyright is the major underpinning of the GPL. There just needs to be a better balance struck. Start with shortening the term across the board (theory: artists derive little further incentive from terms extending so far beyond their deaths, not enough to justify denying the public free access to those works for said long period) and/or requiring registration fees to maintain copyrights on older works (theory: works that are uneconomical to maintain copyright on will be allowed to pass into public domain).

	09-03-2004 09:07									#267
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quote: Originally posted by lord of the mark there are lots of legal fictions. That something is a legal fiction doesnt mean its not functional.

Is copyright working as intended originally, or has it been completely twisted so it's just fatting a few large companies?

quote: Originally posted by lord of the mark And lots of things are abused. thats an argument for reform, not abolition.

The point is whether copyright and other IP laws should exist or not. Just because a law is in existence does not mean it should.

quote: Originally posted by lord of the mark This doesnt make an arguement that i see for abolishing copyright.

Since copyright is not intrinsic, it seems that argument is needed for it to be in place.

	09-03-2004 09:08									#268
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quote: Originally posted by lord of the mark What about the publishers and producers in books, music, movies, etc who've lost their shirts buying works from artists, producing them, and then seeing them fail to sell???

AFAIK, small publishers don't buy works outright.

	09-04-2004 05:57									#269
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quote: Originally posted by Ned Asleep, anything done without authorization of this nature is copyright infringement. The problem, of course, is that there is no effective remedy is the bootleg copy is simply shared by people on the internet. That is the issue of this thread. The bottom line is that the law should conform as best as possible to the facts on the ground, so to speak. Otherwise, people will simply break the law and respect for the law as a whole will diminish.

I have to say I totally agree with this. The fact of whether people should fileshare, bootleg and so on is secondary, tertiary, even when placed next to the fact that they are doing. In the latest NME for example (which also actually shows that 92% of people who download a track actually go on to buy the album anyway). revealed that 82% of people who took the survey are going to ignore warnings and carry on downloading music. Admittedly, without knowing the actual number of people who took part in the survey these are, like all statistics open to debate, but the point is the BPI (and for that matter the RIAA) have to be realists about this. As much as I'm sure it must gall them, they will have to a degree accept what is happening.

	09-04-2004 06:11									#270
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quote: Originally posted by Agathon I recall one artist saying that he would like to release his music into the public domain as Sony had not sent him a royalty check in over 20 years, despite continued sales.

The artist signed the contract in the first place... and in exchange, he got the money he wanted. Sony is within their rights as assigned by the contract. What's your problem. The artist can whine all he wants, but guess what... he agreed to it.

quote: If you want to know what's wrong with copyright, the fact that Michael Jackson owns all of Paul McCartney's best songs without McCartney's consent should suffice.

Why? Again... McCartney signed and agreed to the original contract. He signed away the rights to his songs for money. The fact that Michael Jackson bought them and now owns them because he paid for them is just business.

In both cases the artists agreed to the contracts, and got paid money. At least they got something... you are arguing that they shouldn't get anything for their efforts... that anything they produce should be free for you to steal as you so desire... an argument that should suffice that some type of copyright laws are needed.