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Comment Re:And thus... (Score 1) 141

Plants can photosynthesize because they sit there and don't move. Photosynthesis, even as a form of solar energy, is not terribly efficient. Solar cells aren't terribly efficient either. Here's a good discussion on it.

The problem with that "problematic gunk" is that it's just so freakin' energy rich. It's kind of like telling a starving politician, "You can either eat this big, juicy burger that will probably give you a heart attack one day in the future, or you can shell these sustainable Macadamia nuts that are so much healthier for y-- Hey! Put down the burger!"

Comment Re:Do not sell "pirated" software (Score 1) 174

You're welcome to assume, but you would still be wrong. Check out A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), and the UMG Recordings case cited therein:

We conclude that the district court did not err when it refused to apply the “shifting” analyses of Sony and Diamond. Both Diamond and Sony are inapposite because the methods of shifting in these cases did not also simultaneously involve distribution of the copyrighted material to the general public; the time or space-shifting of copyrighted material exposed the material only to the original user. In Diamond, for example, the copyrighted music was transferred from the user's computer hard drive to the user's portable MP3 player. So too Sony, where “the majority of VCR purchasers ... did not distribute taped television broadcasts, but merely enjoyed them at home.” Napster, 114 F.Supp.2d at 913. Conversely, it is obvious that once a user lists a copy of music he already owns on the Napster system in order to access the music from another location, the song becomes “available to millions of other individuals,” not just the original CD owner. See UMG Recordings, 92 F.Supp.2d at 351–52 (finding space-shifting of MP3 files not a fair use even when previous ownership is demonstrated before a download is allowed); cf. Religious Tech. Ctr. v. Lerma, No. 95–1107A, 1996 WL 633131, at *6 (E.D.Va. Oct.4, 1996) (suggesting that storing copyrighted material on computer disk for later review is not a fair use).

Nor is your assertion that archaic laws are overturned when not enforced. You could in fact bring up any of the laws still on the books; they would just be overturned and are considered to be a waste of taxpayer money to bring a case on them, so no one does. If a law is on the books and has not been repealed, it is still valid. Even these crazy examples still are law. Even if you were correct, digital file sharing has only been around for years, not decades or centuries. Mixtapes are recognized as a different issue because they are analog and therefore lossy -- they cannot be recreated and reshared an infinite number of times. Nor are you sharing your mixtape with massive quantities of people. This is why record companies haven't gone after mixtapes. You're only sharing a self-terminating, lossy version to a limited number of people that you likely know, not a high-fidelity perfect copy of an original to a market of millions. The former is likely to drive up demand by free marketing, whereas the latter is likely to suppress demand by providing a free, identical copy to potential market members. Also, you have no idea whether mixtapes are older than me or not :) I have vinyl and mixtapes, as well. From the Wikipedia article on Mixtapes:

An important distinction between homemade mixes and retail compilations of pop music is that the latter generally obtain permissions for the use of copyrighted songs, while the former do not. As a result, mixtapes, such as those produced and sold by club DJs in the 1970s, are illegal. Most[who?] mixtape enthusiasts assume that private mixtapes are inoffensive from a fair use standpoint, but this is far from clear. Frank Creighton, a director of anti-copyright infringement efforts for the Recording Industry Association of America, was quoted in New York Times as saying that "money did not have to be involved for copying to be illegal."[7]
While mixes on cassette tapes may not have inspired the wrath of the record industry in the past, Mr. Creighton said, "digital mixes have better sound quality", and given the proliferation of CD burning for friends and relatives, "it would be naïve of us to say that we should allow that type of activity".[7]

I would be really wary of thinking that simply because a law is not commonly enforced that it is presumptively or "de facto" legal. It's not. You might be able to get away with it because there is no economic incentive in going after someone where the cost is higher than the reward, but that doesn't change the status of the legality or illegality. This is how a lot of people get surprised with a giant court fine or criminal sentence. Just ask Jammie Thomas-Rassett.

P.S., I'm willing to bet dollars to dimes that your record store paid the clearinghouses (ASCAP/BMI/SESAC) performance licenses. If not, you probably were violating the law but too small for the clearinghouses to notice (though they usually notice record stores), but every record store I know paid their licenses. And you were also using those CDs exactly within the scope of their license: "for promotional purposes."

Okay, I'm done!

Comment Re:Do not sell "pirated" software (Score 1) 174

IANAL (law student), but just because the record companies have not sued (at least with excessive publicity) the general public for sharing music to which they had license does not make it presumptively legal. It's just a whole lot harder to prove than obvious downloading and infringement, so it's easier to create a chilling effect based on the simple cases. Although not as popular in p2p / torrent cases, this is the basis of "public performance" violations where ASCAP/BMI can sue business owners for plugging their iPod into the store speakers without paying for a commercial public performance license. By reproducing a copy and sharing it, you are making a technical commercial infringement, although not nearly as severe or "morally culpable" as the guy in the article who did not own but nevertheless profited off of the piracy.

Comment Re:Censorship & Piracy (Score 1) 174

True to an extent, but laws are ethics in that they (supposedly) embody the moral construct of a specific society. Laws that are malum prohibitum are not morally based, and therefore less than commentary on the ethics of a society. The difference between contract acceptance and unilateral prohibition is true. Would your analysis change if I were debating between purchasing/downloading a bootlegged copy of a movie or concert, which are unilaterally prohibited in the United States? While the degree may be different, OP's repeated emphasis on that the guy was "forced to" download is misplaced. "Had no other choice if he wanted to see the work" is a more accurate portrayal.

Comment Re:Do not sell "pirated" software (Score 2) 174

Not to derail, since I completely agree, but it's worth pointing out that typical "free-sharing piracy" is not "sharing what you have."

Although you might think you have a tangible copy of a song or movie sitting on your hard drive, what you really have (assuming you obtained it legally) is a license to use that song according to 1) the EULA, if there is one, and 2) the copyright law of your respective country. What you don't have is a license or freedom to upload and share the file with the rest of the world. That right remains with the copyright holder.

The sword cuts both ways. We should restrict the piss out of copyright inflation and reverse it significantly, but seriously, if we've been arguing that "copyright is not property," and therefore "infringement is not theft," let's actually stick to that argument rather than pretend all of the sudden that copyrighted works are now suddenly chattel and therefore shareable.

Comment Re:Censorship & Piracy (Score 3, Insightful) 174

I read this twice trying to understand how a censorious government was forcing this man to download movies. How did he have no choice? Were agents holding a gun to his head telling him to download? Was he working for the government and how to download the movies to determine whether their content should be censored?

Then I realized what you (or he) meant was that he really, really wanted to see these movies and couldn't obtain them through legal channels.

I'm usually the one with the tent and sleeper who camped out the night before when it comes to standing in the anti-censorship line, but laws are laws, and Islamic countries have different laws as values than the U.S. and others. This guy was in no way forced to download movies. He just wanted the movies and decided to go to illegal means to get them. Legally, this is no different than downloading a movie because you're out of cash. While there may be a moral issue in the appropriateness of censorship, this guy plainly and simply violated the law and ethics of his culture and then claimed the government "made him do it." I vehemently hate DRM, and it often screws up my ability to view the content in the manner that I want. At no point does it grab me and force me to perform illegal activities by stripping the DRM or pirating content. I may or may not choose to do so of my own volition, and I may feel completely justified in doing so, but I, like this guy, have the choice simply not to consume the product at all!

Comment Fiduciary Duties (Score 2) 592

At risk of being modded down -1: Disagree, there's an important counterpoint worth mentioning here:

Companies have a legal duty to pay taxes according to the laws.
Companies theoretically have a moral duty to pay taxes according to the spirit of the law.
Companies have a legal duty to minimize expenses and maximize returns for their shareholders and investors.

Accordingly, corporations have a legal duty to engage in legal-but-potentially-morally-questionable tax sheltering to minimize expenses and maximize returns for their shareholders. If a director is not using every tool at his disposal to make a business profitable, then at best he will be fired or reprimanded for being a bad director, and at worst he will be sued for breach of his fiduciary duties.

It would appear that a better solution is simply to write simpler tax laws that don't create the loopholes in the first place rather than to try to patch the loopholes with more convoluted tax law. But that is so very much unlikely to happen while Congress is immune to the insider trading and securities exchange laws. Congress won't think that this is broken so long as they're the ones making money off of the loopholes, even if it's at the expense of the U.S. taxpayer.

Comment Re:Death becomes acceptable, doesn't it? (Score 3, Interesting) 170

It's worth remembering that the concept of war as murder is an extraordinarily modern concept with regards to human society. It wasn't that many generations ago that our forefathers even believed that if you died home safe in bed and not in the heat of battle that you would never see the afterlife and your soul might simply vanish. While plenty may consider that to be sociological evolution, and perhaps rightly so, I do not think it is fair to blame the dehumanization of war solely upon LCD screens and video games. The British wore red uniforms to disguise blood, and even the bloodthirsty Romans put sand in the gladiatorial arenas to soak up the gore. We have dehumanized war and death for far longer than the presence of the console video game.

Comment Re:Repercussions (Score 1) 153

The domains in question are licensed (i.e. not property) via a U.S. based registrar for .com, .net, etc. TLDs. In essence, this puts you under U.S. jurisdiction since you are agreeing to licensing terms with a U.S. business. Or at least this is how the argument goes. I fear you may be correct that that argument will further the US relinquishment of key TLDs. At least the strong majority of these domains were pretty evidently selling infringing goods. It also helps that trademark, patent, and copyright issues are often internationally legislated through trade agreements, so a split in due process won't be as dramatic.

Comment Re:And this is why I'll never live in a walled gar (Score 1) 409

Also interesting, and undercutting much of my analysis, is that Ravensburger does not own a trademark to MEMORY in the United States. Apple, as a U.S. corporation therefore, may be overreaching in applying foreign law at least to its U.S. service. Although undoubtedly this makes it easier for them to avoid being held liable for contributory infringement.

Comment Re:And this is why I'll never live in a walled gar (Score 1) 409

Your analysis is correct. Although I completely agree with your post in substance, there are two minor corrections I would contribute:

First, colors cannot be "trademarked" in the conventional meaning of the word. UPS does not own a trademark over the color brown, nor does John Deere own the color green. UPS cannot prevent trucks, or even delivery trucks from being painted brown, nor can John Deere stop farm equipment from being painted green, so long as a reasonable person would not be confused by the origin of the product. What these companies do have, however, are trade dress restrictions which are also governed by the Lanham Act. Trade dress describes your product's overall appearance and packaging of a product or service. At the most liberal outset and expansive of protections, Two Pesos states that trade dress can be distinctive [and thus deserving of protection] without having to show that the trade dress has acquired secondary meaning [has itself become distinctive for other market reasons]. This is the case law as it stands today, though a huge number of critics have taken huge exceptions to this ruling. Two Pesos was reigned in by Wal-Mart v. Samara which stated that a products design is only protectable by showing of secondary meaning. In that sense, Tide cannot claim trade dress infringement by orange-bottled fabric detergent without showing that the orange bottle has acquired secondary market meaning. UPS's brown trucks and John Deere's green tractors will likely have secondary meaning, but the question does not stop at trade dress. Instead, trade dress goes to a likelihood of confusion (so does trademark, but trademark prevents literal infringement in a same category where trade dress may not). For example, If I sell you a green tractor with yellow accents, you might think it came from John Deere. If I sold you the same tractor with purple accents instead of yellow, you likely would not, and I would not have infringed on John Deere's trade dress.

The distinction is best summarized (although I still disagree with the ruling) by Louboutin v. Yves St. Laurent, where a federal appellate court ruled that monochromatic red shoes cannot be 'trademarked' but that red soles on a non-red shoe may be [again dependent upon finding of secondary meaning].

Second, there is an inherent difference between trademarks like "Apple" and "Google," "Photoshop," and that of "Memory." "Apple" and "Google" would fall under the "arbitrary" or "fanciful" categories (respectively) since "Google" is a made up word with no other meaning, and "Apple" is the use of a generic word in a completely unrelated context (computers). Continuing in order of protection, "Photoshop" would be "suggestive," since it is a unique combination of words that suggests the nature of the product [i.e. a digital workshop in which you can retouch photos]. Blu-Ray is a good example.

Memory, on the other hand, is a descriptive mark, which is the least protected and only one step above an unprotectable generic word. "Memory" is directly related to the meaning of the board game in which you must "remember" the location of the cards to match them. The only way that descriptive marks gain protection is if they have developed some secondary meaning in the marketplace. As such, Ravensburger has a much higher standard to prove that they are considered to be the source of the "Memory" game than any other "memory" game on the market. Their continued ownership of the trademark seems to evidence that they have done so.

But you are absolutely right in that Ravensburger has the trademark, and any maker of a "Memory" game is infringing on that trademark. However, the makers of these apps may file an action against Ravenburger to invalidate their trademark and preserve their app's name. So this isn't big, evil Apple beating up on the little guys. These guys are infringing, and they have the burden of proving that Ravenburger is not deserving of the "MEMORY" trademark. They just might have a better chance of invalidating the trademark than, say, Zynga, who instead must call their Scrabble-like game "Words with Friends" instead of "Scrabble" because "Scrabble" is itself a fanciful mark and thus not subject to invalidation without a showing of abandonment.

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