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Comment: Don't get too happy (Score 1) 77

by cpt kangarooski (#47537873) Attached to: Compromise Struck On Cellphone Unlocking Bill

This bill actually does very little. The DMCA is written very broadly, and has been commonly interpreted as to prohibit cell phone unlocking. Because Congress, in the 90s, when they enacted the stupid thing, was aware that the DMCA could go too far, but didn't want to be cautious or have to keep reexamining the law itself, they gave authority to the Library of Congress to add exceptions to it in specific cases. The process for these exceptions is that every three years, anyone who wants an exception has to plead their case. If found worthy, they get an exception. But the exception only lasts until the next rule making session, three years hence. Then it has to be reargued from scratch or lost.

Two rule making sessions ago, the Library of Congress found that cellphone unlocking was worthy of an exception. But in the most recent rule making session, they did not find it worthy, and the exception was lost; it went back to its default state of being illegal.

This law could have amended the DMCA to permanently allow cellphone unlocking. Or it could've directed the Library of Congress to always find that cellphone unlocking is allowed. But it does neither of these.

Instead it only reinstates the rule from two sessions ago for the remainder of the current session. Next year it will have to be argued again, from scratch, to the Library of Congress, or lost, again. And even if argued, it can be rejected, again.

This is less than useless. It's only a temporary patch, it doesn't even have an iota of long term effect (the rules don't take precedent into account, and this doesn't change it), and we've wasted all this effort getting it instead of something worthwhile.

Comment: Re:The question to me seems to be... (Score 1) 148

by SteveWoz (#47357639) Attached to: Lawrence Lessig Answers Your Questions About His Mayday PAC (Video)

End goal: change the constitution. We need a start. It's easy to see how hard this will be and to give up early, but some of us feel the imperative to fight for it. We can change things. The vast will of the masses (corporation political donations are not equivalent to the free speech we enjoy as individuals) needs to be strategically gathered. Critical mass could take decades, as with things like gay marriage.

Comment: Re:The key distinction in the ruling (Score 1) 484

by cpt kangarooski (#47316847) Attached to: Supreme Court Rules Against Aereo Streaming Service

So basically, if they just shift from LIVE to a TIME DELAYED model, they could go right on transmitting and not be considered "performing" under the current act.

As J. Scalia points out, the 'standard' the Court has chosen is unclear. Maybe that would be legal, maybe it wouldn't be. We'll never know until either 1) Congress amends the law to be clear about that; 2) Someone tries it and the Court reverses this opinion in a useful way; or 3) Someone tries it and the Court rules squarely on that in light of this opinion.

One thing is for sure: Only someone with lots of resources and a lot of daring will even attempt to find out by actually trying it.

Comment: The key distinction in the ruling (Score 5, Informative) 484

by cpt kangarooski (#47315793) Attached to: Supreme Court Rules Against Aereo Streaming Service

This case boiled down to one major issue: Whether the allegedly infringing conduct in this case was engaged in by either Aereo, or by its users. Don't get hung up on the public performance v. private performance issue; it was really certain that if Aereo was liable, that the performance was public; if it were the users, it would be private.

J. Scalia's dissent does a good job of explaining the issue:

There are two types of liability for copyright infringement: direct and secondary. As its name suggests, the former applies when an actor personally engages in infringing conduct. Secondary liability, by contrast, is a means of holding defendants responsible for infringement by third parties, even when the defendants âoehave not themselves engaged in the infringing activity.â It applies when a defendant âoeintentionally induc[es] or encourag[es]â infringing acts by others or profits from such acts âoewhile declining to exer- cise a right to stop or limit [them].â

Most suits against equipment manufacturers and service providers involve secondary-liability claims. For example, when movie studios sued to block the sale of Sonyâ(TM)s Betamax videocassette recorder (VCR), they argued that Sony was liable because its customers were making unauthorized copies. Record labels and movie studios relied on a similar theory when they sued Grokster and StreamCast, two providers of peer-to-peer file-sharing software.

This suit, or rather the portion of it before us here, is fundamentally different. The Networks claim that Aereo directly infringes their public-performance right. Accordingly, the Networks must prove that Aereo âoeperform[s]â copyrighted works, Â106(4), when its subscribers log in, select a channel, and push the âoewatchâ button. That process undoubtedly results in a performance; the question is who does the performing. If Aereoâ(TM)s subscribers perform but Aereo does not, the claim necessarily fails.
The Networksâ(TM) claim is governed by a simple but profoundly important rule: A defendant may be held directly liable only if it has engaged in volitional conduct that violates the Act. ...

A comparison between copy shops and video-on-demand services illustrates the point. A copy shop rents out photocopiers on a per-use basis. One customer might copy his 10-year-oldâ(TM)s drawingsâ"a perfectly lawful thing to doâ" while another might duplicate a famous artistâ(TM)s copyrighted photographsâ"a use clearly prohibited by Â106(1). Either way, the customer chooses the content and activates the copying function; the photocopier does nothing except in response to the customerâ(TM)s commands. Because the shop plays no role in selecting the content, it cannot be held directly liable when a customer makes an infringing copy.

Video-on-demand services, like photocopiers, respond automatically to user input, but they differ in one crucial respect: They choose the content. When a user signs in to Netflix, for example, âoethousands of . . . movies [and] TV episodesâ carefully curated by Netflix are âoeavailable to watch instantly.â That selection and arrangement by the service provider constitutes a volitional act directed to specific copyrighted works and thus serves as a basis for direct liability.

The distinction between direct and secondary liability would collapse if there were not a clear rule for determining whether the defendant committed the infringing act. The volitional-conduct requirement supplies that rule; its purpose is not to excuse defendants from accountability, but to channel the claims against them into the correct analytical track. Thus, in the example given above, the fact that the copy shop does not choose the content simply means that its culpability will be assessed using secondary-liability rules rather than direct-liability rules.

So which is Aereo: the copy shop or the video-on-demand service? In truth, it is neither. Rather, it is akin to a copy shop that provides its patrons with a library card. Aereo offers access to an automated system consisting of routers, servers, transcoders, and dime-sized antennae. Like a photocopier or VCR, that system lies dormant until a subscriber activates it. When a subscriber selects a pro- gram, Aereoâ(TM)s system picks up the relevant broadcast signal, translates its audio and video components into digital data, stores the data in a user-specific file, and transmits that fileâ(TM)s contents to the subscriber via the Internetâ"at which point the subscriberâ(TM)s laptop, tablet, or other device displays the broadcast just as an ordinary television would. ...

The only question is whether those performances are the product of Aereoâ(TM)s volitional conduct.

They are not. Unlike video-on-demand services, Aereo does not provide a prearranged assortment of movies and television shows. Rather, it assigns each subscriber an antenna thatâ"like a library cardâ"can be used to obtain whatever broadcasts are freely available. Some of those broadcasts are copyrighted; others are in the public do- main. The key point is that subscribers call all the shots: Aereoâ(TM)s automated system does not relay any program, copyrighted or not, until a subscriber selects the program and tells Aereo to relay it. Aereoâ(TM)s operation of that system is a volitional act and a but-for cause of the resulting performances, but, as in the case of the copy shop, that degree of involvement is not enough for direct liability.

In sum, Aereo does not âoeperformâ for the sole and simple reason that it does not make the choice of content. And because Aereo does not perform, it cannot be held directly liable for infringing the Networksâ(TM) public-performance right.

However, that's not the decision that the Court reached. Instead, J. Scalia describes the Court's opinion as:

The Courtâ(TM)s conclusion that Aereo performs boils down to the following syllogism: (1) Congress amended the Act to overrule our decisions holding that cable systems do not perform when they retransmit over-the-air broadcasts;4 (2) Aereo looks a lot like a cable system; therefore (3) Aereo performs. ...

Making matters worse, the Court provides no criteria for determining when its cable-TV-lookalike rule applies. Must a defendant offer access to live television to qualify? If similarity to cable-television service is the measure, then the answer must be yes. But consider the implications of that answer: Aereo would be free to do exactly what it is doing right now so long as it built mandatory time shifting into its âoewatchâ function. Aereo would not be providing live television if it made subscribers wait to tune in until after a showâ(TM)s live broadcast ended. A subscriber could watch the 7 p.m. airing of a 1-hour program any time after 8 p.m. Assuming the Court does not intend to adopt such a do-nothing rule (though it very well may), there must be some other means of identifying who is and is not subject to its guilt-by-resemblance regime.

Two other criteria come to mind. One would cover any automated service that captures and stores live television broadcasts at a userâ(TM)s direction. That canâ(TM)t be right, since it is exactly what remote storage digital video recorders (RSâ"DVRs) do, and the Court insists that its âoelimited holdingâ does not decide the fate of those devices. The other potential benchmark is the one offered by the Gov- ernment: The cable-TV-lookalike rule embraces any entity that âoeoperates an integrated system, substantially dependent on physical equipment that is used in common by [its] subscribers.â The Court sensibly avoids that approach because it would sweep in Internet service providers and a host of other entities that quite obviously do not perform.
That leaves as the criterion of cable-TV-resemblance nothing but thâ(TM)olâ(TM) totality-of-the-circumstances test (which is not a test at all but merely assertion of an intent to perform test-free, ad hoc, case-by-case evaluation). It will take years, perhaps decades, to determine which automated systems now in existence are governed by the traditional volitional-conduct test and which get the Aereo treatment. (And automated systems now in contemplation will have to take their chances.)

The Court's opinion states that it doesn't have an effect beyond Aereo and Aereo-like services:

Aereo and many of its supporting amici argue that to apply the Transmit Clause to Aereoâ(TM)s conduct will impose copyright liability on other technologies, including new technologies, that Congress could not possibly have wanted to reach. We agree that Congress, while intending the Transmit Clause to apply broadly to cable companies and their equivalents, did not intend to discourage or to control the emergence or use of different kinds of technologies. But we do not believe that our limited holding today will have that effect.

For one thing, the history of cable broadcast transmis- sions that led to the enactment of the Transmit Clause informs our conclusion that Aereo âoeperform[s],â but it does not determine whether different kinds of providers in different contexts also âoeperform.â For another, an entity only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work. ...

And we have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content.

But, as J. Scalia points out:

The Court vows that its ruling will not affect cloud-storage providers and cable- television systems, but it cannot deliver on that promise given the imprecision of its result-driven rule.

Comment: Really? (Score 1, Insightful) 548

My salary has been steadily increasing and I certainly haven't found that there are skilled developers sitting idle at home. I can collect a small fortune in placement fees, if only I know some out-of-work developers I wouldn't be ashamed to recommend.

The simple fact from where I am standing is: There is a lot of work and there are not enough skilled people to do it yet we are only using 50% of the population.

But the sector has a massive negative image. Not even so much anti-women as anti-human. If you don't fight for yourself you won't get raises by just doing a good job and managers will happily have you do 80 hours with no compensation if they can get away with it. So a LOT of good developers I know have started their own businesses to get out of the rat race. You really got to love coding to stay with it when you can make money in consulting.

But part of the problem is the gigantic hatred you see on this site and sites like tweakers any time a story of this kind comes up. "The girls are getting some money, UNFAIR!". Crybabies. There are tons of initiatives to promote coding in general, plenty of competitions if you so wish, plenty of events to visit often with booth babes. No booth boys.

Let it go! Or at least accept that if this news story makes your blood boil, you got issues. And your issues are poisoning your work place or are even the reason you can't find a job despite your leet skills.

Nobody with real skills fears competition. If you see a new employee as anything but "FINALLY, some HELP, here is ticket 1000-9999, I take the remaining 1 million until you are up to speed", you are not a developer, real developers don't have enough spare time to worry about their jobs.

Comment: Re:Key Point Missing (Score 2) 34

by NewYorkCountryLawyer (#47234405) Attached to: Appeals Court Finds Scanning To Be Fair Use

The summary misses a key point. Yes they scan and store the entire book, but they are _NOT_ making the entire book available to everyone. For the most part they are just making it searchable.

Agreed that it's not in the summary, but as you correctly note, it's just a "summary". Anyone who reads the underlying blog post will read this among the facts on which the court based its opinion: "The public was allowed to search by keyword. The search results showed only the page numbers for the search term and the number of times it appeared; none of the text was visible."

So those readers who RTFA will be in the know.

+ - Appeals Court finds scanning to be fair use in Authors Guild v Hathitrust

Submitted by NewYorkCountryLawyer
NewYorkCountryLawyer (912032) writes "In Authors Guild v Hathitrust, the US Court of Appeals for the Second Circuit has found that scanning whole books and making them searchable for research use is a fair use. In reaching its conclusion, the 3-judge panel reasoned, in its 34-page opinion (PDF), that the creation of a searchable, full text database is a "quintessentially transformative use", that it was "reasonably necessary" to make use of the entire works, that maintaining maintain 4 copies of the database was reasonably necessary as well, and that the research library did not impair the market for the originals. Needless to say, this ruling augurs well for Google in Authors Guild v. Google, which likewise involves full text scanning of whole books for research."

+ - Councilman/Open Source Developer submits Open Source bill->

Submitted by NewYorkCountryLawyer
NewYorkCountryLawyer (912032) writes "New York City Council Member Ben Kallos (KallosEsq), who also happens to be a Free and Open Source Software (FOSS) developer, just introduced legislation to mandate a government preference for FOSS and creating a Civic Commons website to facilitate collaborative purchasing of software. He argues that NYC could save millions of dollars with the Free and Open Source Software Preferences Act 2014, pointing out that the city currently has a $67 million Microsoft ELA. Kallos said: "It is time for government to modernize and start appreciating the same cost savings as everyone else.""
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