-- Enterprising Copyright Holder
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-- Enterprising Copyright Holder
This is an interesting app and I'm curious to try it out when I get home. Thanks for your work in this, Peter. I know it's hard to get development of something like this truly useful without a critical mass, but someone has to start the shift-space somewhere, and I'd rather see legal alternatives that encourage sales and legal consumption rather than blanket torrenting.
This wasn't your point, I know, but the NYTimes answer misses an extremely critical distinction. When you buy a movie ticket, you are buying a license to see that movie in the movie theater. You do not amass any ownership rights, other than ownership over the ticket. You cannot return to re-watch that movie in the theater or otherwise.
Books, on the other hand, are purchased outright. You can reread the book as many times as you want, scrawl over the pages, burn it, give it away, or sell it. You own the book, and you have limited copyrights in your copy. Likewise, when you purchase a CD, you can do the exact same things to the CD. In the U.S., most lawyers agree (though it is not completely legally settled) that you have the right (or at least legal defense) to format-shift your CD to digital media so long as it is for personal use only. Theoretically, shifting print novels to digital should work the same way.
There are some minor distinctions when it comes to eBooks that the author does miss, however. For one, you are not shifting your own copy of the book to digital format. Comparatively, if you own a CD physically, you probably have the right to format shift that CD to digital space, but it is less clear whether you have the right to torrent a copy of that CD. Why this is is entirely speculative and a great topic for a law journal article, but practically speaking you might be downloading a different copy than the one you actually own; maybe you're getting the remastered version, or it's a slightly different publication with different licensing schemes.
Likewise, when you download an eBook, the eBook version is probably marginally different than the print copy you own. For example, I caved and purchased a copy of the Lord of the Rings in eBook format while traveling. The new publication featured a number of typos that were not in my printed copy. While it pains me to think that I had to pay for the "privilege" of those typos, the fact is that the eBook version is a different publication. As such, by downloading a different copy of what is superficially the same, you may be violating copyright. For example, owning the VHS to Star Wars would probably not give you the right to download the high definition BluRay. You might have the right to download a VHS copy for yourself, and you very likely have the right to rip your own VHS (but less likely your DVD thanks to the DMCA DRM circumvention clause lacking an explicit Fair Use provision) for personal use.
Other countries will explicitly let you rip your own material, but only if you do the ripping yourself. This is because this is a logical extension of the "sweat of the brow" doctrine which assumes certain ownership in copyrights based upon the work put in to obtain it; because you are putting the work in yourself, the work serves as an alternative to the cost you would pay the copyright holder. The U.S. does not recognize this doctrine, so, for now, format shifting exists in a legal gray area. My personal, ethical (non-legal) opinion is that you should have a right to download or format shift a functionally identical copy of something you own (or have license to for the duration and to the specification of the license agreement only), without any significant improvements to the digital copy that could not be trivially added by the user during the format shifting process (e.g. ID3 tagging okay, HiDef files not okay). This is not legal theory, though, so ultimately the decision is between you, your conscience, and possibly a judge.
Except it does matter, a whole freaking lot, because any countervailing rights to privacy that the people "on their worst days" have fall right off the scale when they agree to sign the release. Systematizing the recording, thereby bypassing any release process, removes the ability for people to waive their right to privacy -- we just throw it out for the public to consume. Just because the cops are public servants and subject to public scrutiny does not necessarily make every private figure with which they interact also subject to public scrutiny.
Just because I consent to let a cop into my house does not mean that I consent to let the entire Internet into my house. With Cops, I can at least choose to consent to broadcast my wife-beater-wearing self and messy home to the public. Just because you want to shove this in the "Cops are self-serving thugs" box doesn't mean it neatly (or doesn't at all) fit. Complex issues are complex.
No, it's not "other parts of the same law" that require the DMCA's safe harbor provisions, it's traditional, old school common law. If you aid and abet someone in committing a crime, then you are liable as an accomplice, or a secondary/contributory infringer in the case of copyright. Without it, every ISP is technically liable for every copyright infringement committed on their network or website, because they give consumers the tools to commit the infringement, thereby making them liable.
Get rid of the DMCA safe harbor provisions, and you can kiss the open internet (including this forum) goodbye. Unless you consider the days before the Internet to be "demonstrably better."
That's not completely correct. The Fourth Amendment was enacted specifically to prevent writs of assistance, which were commonly used in Britain to give law enforcement officers broad, nearly unlimited power to conduct searches for contraband or smuggled goods. The Fourth Amendment was enacted to prevent law enforcement officers from having this broad power to search anywhere and everywhere, even if there was reasonable evidence of a crime.
Part of the danger of broad writs or warrants is that (1) they unduly invade a person's fundamental right to privacy, and (2) the adoption of the plain view exception to the exclusionary rule will make you liable for anything the police uncover, whether it's related to the crime being searched for or not. So if the police go searching your hard drives for child pornography and uncover evidence that you bought some pot from a friend via e-mail, that evidence can and will be used against you.
You are correct in that a search may be so broad as to search for evidence of the thing to be seized. However, the presumption is and should always be tailored as narrowly as possible. Simply saying that the police do not know where the gun is does not give the police powers to search any property the suspect owns. The police may search his house and anywhere in it, but the boundaries must be narrowly tailored so as to survive constitutional scrutiny. In the case of e-mail, any communications with people not directly implicated or otherwise material to the crime should be excluded, as there is relative certainty that material information will not be communicated with these parties (for example, you aren't going to find evidence of child pornography in my weekly Mint financial statement updates or newsletters I receive). As such, it is likely that the scope of this warrant is over-broad.
This is why I store all of my flash drives in a Milkbone box: hiding in plain sight.
No, this ruling essentially makes "on a computer" claims go away. The only way something can be patented is if it's sufficiently novel to warrant patentability; the Court in this case said that an idea performed "on a computer," absent any practical benefits other than the computer itself, is not patentable. Also, your frustration with the Supreme Court is unwarranted; SCOTUS has been very good about limiting patents in the wake of the Federal Circuit's pro-patent agenda.
Of course, you also forget that (according to Internet memes' interpretations of SCOTUS) corporations are people, too.
Alice Corp. was the assignee of several patents for mitigating "settlement risk" via software. Software claims in patent law usually occur in two parts: a method of performing the claimed function and a system for performing the prior claimed method. This basically lets a patent holder guard against people manipulating their way around the system or method claims to perform the exact same function, such as by using a remote server instead of a local hard drive, or querying before step A as opposed to after step A. Alice Corp. had both a system and method patent for mitigating settlement risk. Specifically, the claim contemplated two parties using a third-party intermediary, in this case a computer, to create account ledgers (or "shadow accounts," as the patent called them) based on the accounts of both primary parties, determining available versus unavailable funds, calculating a risk for a given set of transactions, and then issuing instructions to the parties telling them what transactions are permitted and what transactions are too risky to engage in.
The patent itself was to "facilitate the exchange of financial obligations between two parties by using a computer system as a third-party intermediary." If this sounds like an abstract business method, that's because it is. Alice Corp.'s patent was basically a claim to mitigating settlement risk by employing a third party on a computer. The intermediary was just the computer in this case. The district court found that the patent was too vague, because it really only contemplated an idea. The Federal Court on first hearing reversed, saying that it wasn't "manifestly evident" that the patent ideas were abstract, so the case should be litigated rather than dismissed on summary judgment. On second hearing en banc (i.e. with all the Federal Circuit judges present, the Federal Circuit changed its position and determined that the method claims were invalid. There was some internal dispute, however, as to whether the system claims -- i.e. a claim over a computer that performs the function -- was valid.
The Supreme Court determined, in an opinion written by Justice Thomas, that both the method and system claims were abstract and therefore invalid. The rule under a cased called Mayo Collaborative Services v. Promethius Labs requires that an abstract idea, to be patentable, must have some practically beneficial application to either the computer system implementing it or to some other kind of technology. For example, it might be common knowledge that plucking a guitar string emanates a harmonic frequency, so I can't patent plucking a guitar string, but if I find a new, beneficial use for plucking a guitar string, such as a patent on plucking guitar strings to encourage the growth and development of plants (yes, it's nonsensical -- I can't invent good, patentable things on the spot!), then I could patent that. Here, though, the court asked "whether the claims at issue here do more than simply instruct the practitioner to implement the abstract idea of intermediated settlement in a generic computer." Laconically, the Court concluded, "They do not."
So what does this mean for software patents? Well they still are valid as more than just math. Though the Court didn't address the issue directly, it has been generally held that software is sufficiently transformative to warrant patentability. While not a favorite opinion here on Slashdot, that's not altogether nonsensical; if software is sufficiently artistic enough to be copyrightable, then it stands to reason that it has been sufficiently transformed from some natural state to warrant patentability as well. That said, algorithms are not patentable. A software claim that only protects against doing specific math, as opposed to being comprised of math, is not valid and will be (and has been) invalidated. What's the difference? You have to take your tech beanies off and look at it from the perspective of very intelligent, but non-technical 60+ year-olds.
What this case does do is extend Bilski to the software world. You couldn't patent an idea. Now it's articulated that you can't patent an idea on a computer. So finally, all of those irate claims we've made about "that's just a patent for doing X on a computer!" has some valid case law supporting it.
Law school graduate, not a lawyer (yet), who works in a patent law firm. This isn't legal advice. Blah, blah.
"The algorithm to do that is extremely nasty. You might want to mug someone with it." -- M. Devine, Computer Science 340