What's Left Of The Sony Betamax Decision?

from the chipped-away-piece-by-piece dept

Michael Scott points us to a writeup by lawyer Will Cross (who apparently is now at the library school at Duke) which kicks off by looking at how retiring Supreme Court Justice John Paul Stevens really had a huge impact on the future of the internet, by writing the majority opinion in the hugely influential Sony Betamax case, which highlighted important exceptions to copyright law. Cross then also points to Stevens' decision striking down much of the Communications Decency Act as being unconstitutional for seeking to restrict expression online only to "what is fit for children." However, the post then goes bit by bit through what's happened since then, and shows how the Sony Betamax decision has been trimmed further and further back, to the point that the basic principles set forth by Stevens in both cases are increasingly unrecognizable:
After a decade of fruitless lawsuits and on the heels of another legal victory, this time against file sharing service Limewire, content owners are gearing up for yet another round of lawsuits this week.  The problem with this bellicose response to file sharing is that Justice Stevens' open internet is increasingly caught in the crossfire.

This response to file sharing has taken a significant toll on the efficiency of the legal system and has bent the law badly out of shape.  As Eric Goldman's blog, cited above, notes, "there is 'normal' copyright law and then 'P2P file sharing' copyright law, and it's a mistake to think those two legal doctrines are closely related."  Content owners have repeatedly pushed for extreme, or simply non-legal, readings of copyright and fair use, most famously in the Lenz case dealing with bogus takedown notices (and a dancing baby) and the recent Jammie Thomas case dealing with excessive statutory damages.  They are also attempting to rewrite the already draconian DMCA, an irony matched only by the sublime absurdity of content owners suing one another over pirated anti-piracy technology.

More troubling, these lawsuits have also begun to target not only users but service providers.  Content owners have been overburdening ISP's with automated discovery requests for years and have recently begun to attack ISP's directly.  They have also sought an injunction against the bandwidth provider for file sharing service The Pirate Bay, essentially arguing for fourth party liability.

This erosion in Justice Steven's principle of an open internet reached a new low with a California court's recent injunction against BitTorrent search engine IsoHunt requiring it to remove all links pointing to infringing files. This, of course flies in the face of Stevens' principle about non-infringing uses and requires IsoHunt to have the same infeasible knowledge and control over users as was struck down in Reno.   If the Pirate Bay case is the equivalent of suing AT&T for an obscene caller's ramblings then this case is akin to requiring that Sprint disconnect anyone whose phone might be used for unlawful acts even before those acts have been identified as unlawful.  It cannot be done and the only alternative is to shutter the technology completely or simply bend over backward to accommodate any and all measures litigious content owners may seek to employ.
When Cross puts all those stories together like that, you realize how much of the last few years has really been about the entertainment industry effectively dismantling the core concepts put forth by Stevens in the Betamax decision. A key component to what helped make the internet free to become the internet we know, love and use every day, is slowly getting chipped away by special interests who don't want to allow that freedom because it undermines their business models. When you put all of that together in one place and realize how much has already been eroded, it's downright frightening, and it makes you wonder what great new technology won't be built and won't be widely used because of these policies.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, Jun 3rd, 2010 @ 12:47pm

    The fact is that monopolists are the slowest to innovate and they do a lot to prevent and delay innovation, which is why IP (ie: patents and copyrights) pretty much only serve to hinder innovation. If you have a monopoly on a market and the government enforces that monopoly, why innovate?

     

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  2.  
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    Yogi, Jun 3rd, 2010 @ 12:51pm

    Sad

    So basically, the United States invented the internet and the United States is trying to take it down.

    I seriously hope the U.S. fails miserably.

    The land of the free? Not so much anymore.

     

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  3.  
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    Anonymous Coward, Jun 3rd, 2010 @ 1:10pm

    Wailing to the contrary notwithstanding, the Betamax case "ain't" going to disappear as it relates to the holding concerning new technologies.

    BTW, was this article cited because it was written by an intern, a member of the internet-generation, or because it is full of links to techdirt?

     

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  4.  
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    Anonymous Coward, Jun 3rd, 2010 @ 1:15pm

    There is no library school at Duke. This is from the library itself.

     

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  5.  
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    :Lobo Santo (profile), Jun 3rd, 2010 @ 1:25pm

    Re: Sad

    Prisoners Per capita (most recent) by country
    # 1 United States: 715 per 100,000 people
    # 2 Russia: 584 per 100,000 people
    # 33 Iran: 226 per 100,000 people
    #126 Japan: 54 per 100,000 people
    *sigh*
    "Land of the free" my rear-end.

     

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  6.  
    identicon
    Anonymous Coward, Jun 3rd, 2010 @ 1:29pm

    Re:

    Oddly, I don't see anything in your comment except wailing to the contrary and bitter whining.

     

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  7.  
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    NAMELESS ONE, Jun 3rd, 2010 @ 2:07pm

    don;t worry tony clement makes using a vcr illegal

    and y cant keep taped shows either a library is illegal

    oh and do a gun related deaths form the years 2001 to 2008
    its doubled form 16K deaths to 32K

    YUP lets be just like americans

     

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  8.  
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    Mike Masnick (profile), Jun 3rd, 2010 @ 2:31pm

    Re:

    Wailing to the contrary notwithstanding, the Betamax case "ain't" going to disappear as it relates to the holding concerning new technologies.

    Other than the fact that the article details, quite specifically, how it HAS been disappearing. You offer not a single counter-point.

    You used to offer up facts, but lately you seem to act like the cranky old man who has nothing to do but make statements with no factual basis.

    BTW, was this article cited because it was written by an intern, a member of the internet-generation, or because it is full of links to techdirt?

    Mr. Cross is an attorney. For someone who insists that you don't insult people, the statement above is rather insulting, don't you think? You ignore the fact that he's an attorney, call him "an intern" without noting what that internship is (and that it's done as an attorney) and then make a ridiculous assumption about links (I have to be honest, I didn't even realize he linked to Techdirt).

    Now, if you have something substantial to add, rather than your usual insults and put downs, we're all ears. Though, I now understand why you refuse to post under your name like you used to (and which you insisted you would continue to do). It's much easier to throw around random unsubstantiated insults when no one can trace it back to you and your law practice built off of abusing the intellectual property system.

     

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  9.  
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    m3mnoch (profile), Jun 3rd, 2010 @ 2:53pm

    weird html in the post

    fyi -- in the first paragraph, the words "striking down" have a weird rollover on them.

    m3mnoch.

     

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  10.  
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    Anonymous Coward, Jun 3rd, 2010 @ 3:03pm

    in the end, the people got greedy. they didnt just want to make a backup copy, they didnt just want to time shift what they could receive in normal means, they wanted everything, they wanted it now, and they wanted it for free and without permission outside of contracted distribution channels. so push comes to shove, and the other side is pushing back hard.

     

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  11.  
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    btrussell (profile), Jun 3rd, 2010 @ 3:10pm

    Re:

    Why don't you either:
    a) quit posting.
    b) give yourself a name so we can easily skip over your comments.

    No one forces you to come here and read/comment.

    Wait! You must be getting paid to post this crap.

    Sign me up! There are a number of forums I don't bother reading/posting to anymore as it isn't worth my time.

    Make it so # m1n_

     

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  12.  
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    Anonymous Coward, Jun 3rd, 2010 @ 3:16pm

    Re: Re:

    I have to be honest, I didn't even realize he linked to Techdirt - you talk about other people not reading linked stories very closely and you missed something fairly obvious? come on mike, admit it. you are giving space and support to another person who is supporting your ideas. it isnt independant thought, he probably got most of the story from your blog posts directly. maybe next time you would want to quote a lawyer who might have actually argued a case on the subject (or heck, argued a case period)?

     

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  13.  
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    Anonymous Coward, Jun 3rd, 2010 @ 3:38pm

    Re: Re: Re:

    You forgot to add "the masnick" to your irrelevant whining.

     

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  14.  
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    Anonymous Coward, Jun 3rd, 2010 @ 3:43pm

    Re:

    Good thing Psychic TAM never makes absolute declarations.

     

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  15.  
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    Anonymous Coward, Jun 3rd, 2010 @ 3:47pm

    Re:

    Pushing back hard?

    In the name of all pirates I want to inform you that if that is hard we the pirates didn't noticed at all.

    Harsh language doesn't affect a pirate. Getting the clueless in front of a judge doesn't affect pirates.

    The reason piracy is growing is either people lost completely the respect for the law, or they are not feeling the "hard push-back" mentioned, since I doubt they lost completely the respect for the law I will venture that the pushing is not hard as one may think.

     

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  16.  
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    CrushU, Jun 3rd, 2010 @ 3:52pm

    Re: Re: Re:

    It's likely he didn't realize it for the same reason I didn't.

    He was actually reading the article, for the information the article itself contained, not mindlessly nitpicking on links.

    Congratulations, you've just advertised yourself as having not read the article itself, but instead skimmed it solely to find links to techdirt. Nice to know we're evaluating articles on the places they link to, now. OH WAIT.

    I did find it amusing that there were an awful lot of links in there, however, to techdirt and elsewhere. It looks alot like he just searched for that topic, or remembered where he'd first heard about it, and put the link to that place.

     

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  17.  
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    Anonymous Coward, Jun 3rd, 2010 @ 4:19pm

    Re: Re: Re: Re:

    you have to be kidding. the first thing that is clear is that this guy is using the masnick writing style, linking all over the place and to nothing at the same time (new post with dead links, always a classic). half the links on the page are to techdirt. it would appear that this guy is sort of a masnick wannabe with a law degree. basically, the post is a mirror of techdirt, nothing more and nothing less. not particularly original, and just another fluffy "look at me i am an intellectual" opinion piece.

     

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  18.  
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    Anonymous Coward, Jun 3rd, 2010 @ 4:20pm

    Re: Re: Re: Re: Re:

    "half the links on the page are to techdirt"

    You either don't know how to count or is a liar.

     

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  19.  
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    Anonymous Coward, Jun 3rd, 2010 @ 4:45pm

    Re: Re: Re: Re: Re:

    Dead links?

    Your DNS server may be experiencing problems or you are being blocked and didn't even realize it, because all links there are working on a sock5.

     

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  20.  
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    Mike Masnick (profile), Jun 3rd, 2010 @ 4:47pm

    Re: weird html in the post

    fyi -- in the first paragraph, the words "striking down" have a weird rollover on them.


    Ah, typo in the link. Fixed now.

     

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  21.  
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    Anonymous Coward, Jun 3rd, 2010 @ 4:58pm

    Re: Re: Re: Re: Re:

    Busted!

     

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  22.  
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    Anonymous Coward, Jun 3rd, 2010 @ 5:03pm

    Re: Re:

    Lost respect for copyright law? In an age where making copies is not only ubiquitous but also getting substantially easier with each passing month?

    A decade after Napster?

    Four decades after retroactive extensions to copyright that effectively stagnating the public domain?

    THEM STEALERS ARE DESTROYING OUR CULTURE-MAKING INDUSTRY!!!

     

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  23.  
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    Hephaestus (profile), Jun 3rd, 2010 @ 5:23pm

    Re: Re: Re: Re: Re: Re: gramar nazi time ;)

    ""You either don't know how to count or is a liar.

    or are a liar ...

    feel free to correct me on my spelling mistake :P

     

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  24.  
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    Anonymous Coward, Jun 3rd, 2010 @ 5:29pm

    Re: Re: Re: Re: Re: Re:

    i did a recount. 8 out of 23 (or 24, depending) or 1/3 of the links. still more than enough to be significant, and rather obvious. mike is up our butts for not reading the stories, but damn, those links are sort of obvious, no?

    seems to me you are covering for mike. why do that? oh, because you are mike.

     

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  25.  
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    Anonymous Coward, Jun 3rd, 2010 @ 5:40pm

    Re: Re: Re: Re: Re: Re: Re:

    FLAWLESS LOGIC!

     

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  26.  
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    Anonymous Coward, Jun 3rd, 2010 @ 5:42pm

    Re: Re: Re:

    And yet more culture is being made today than at any other point in human history.

    I blame the internet.

     

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  27.  
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    The Groove Tiger (profile), Jun 3rd, 2010 @ 6:13pm

    Re: Re: Re: Re: Re: Re: Re:

    He's everywhere! Game over man!

     

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  28.  
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    Anonymous Coward, Jun 3rd, 2010 @ 7:02pm

    Re: Re: Re: Re: Re: Re:

    this link: http://library.duke.edu/blogs/scholcomm/2010/06/02/2007/11/14/new-business/ - goes up and down (service issues, it does generate a 404 page on some views). i suspect they have a bandwidth limit, and the massive flow through techdirt is blowing them up. the masnick monsters are on the loose.

     

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  29.  
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    Anonymous Coward, Jun 3rd, 2010 @ 7:12pm

    Re: Re: Re: Re: Re: Re: Re:

    Hi TAM. I heard from a conspiracy theory website that tinfoil interferes with the brain's ability to count! Quick, switch to lead for your hat!

     

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  30.  
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    Jay (profile), Jun 3rd, 2010 @ 11:15pm

    Lost respect for law?

    Prohibition never is a good law. File sharing and P2P are good technologies that the "copyright-ists" make us want to believe are bad. There's countless economic articles, on this site and within 2 seconds of a Google search, that show us that the law is wrong in its heavy handed enforcement of something that goes against everything that is culture driven.

    This so called "piracy" that everyone harps on, is not putting people out of business. As has been mentioned, it means the music and movie industry are doing it wrong. They aren't in the business of making us revert to a time gone by (the 80s and their loss of the Betamax case). They are in the entertainment business, where they are competing for our dollars.

    It's fair to say they want control of that money. Regardless, only I can release it. Have I found good music on a P2P site? Before Napster became illegal (still for no damned good reason) I found 16 different remixes of Haddaway's "What is Love" song. Also, for a more recent example, I downloaded the Grey Album. Read the first paragraph of this link:

    http://en.wikipedia.org/wiki/The_Grey_Album

    I'll help, The Grey Album gained notoriety due to the response by EMI in attempting to halt its distribution.

    I have to say, it was a good mix. It still is. It took a guy 3 months to make this work, that is an excellent blend of Jay-Z and the Beatles. It's unique and just different enough to warrant attention. I like this better than Jay-Z's regular album. Sadly, the attempt to take this off the market caused me to be labeled a "pirate." And for what? Some company's misguided attempt to stonewall a unique blend of two vastly different genres of music?

    You can say that I don't respect the law then if this is what happens to artists, who the RIAA is actually supposed to represent.

    I guess the best I can say about this push back is "YAAARRR!"

     

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  31.  
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    Yogi, Jun 4th, 2010 @ 12:08am

    Re: Re: Sad

    You must be kidding. That's a terrible statistic!

     

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  32.  
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    AC & Your Sunshine's Banned, Jun 4th, 2010 @ 4:29am

    "It took a guy 3 months to make this work, that is an excellent blend of Jay-Z and the Beatles. It's unique and just different enough to warrant attention. I like this better than Jay-Z's regular album. Sadly, the attempt to take this off the market caused me to be labeled a "pirate." And for what? Some company's misguided attempt to stonewall a unique blend of two vastly different genres of music?"


    Yeah, agreed, DangerMouse is a great artist. I remember "Grey Tuesday" in 2004 when "The Grey Album" was hosted on many sites for a direct, free release.

    "The Grey Album" is interesting and worth hearing; unfortunately, I'm no fan of Jay-Z :p

    I downloaded another banned album that day, along with TGA- "Hippocamp Ruins Pet Sounds" which is a GREAT collaborative remix project of the classic Beach Boys record.

    "Grey Tuesday" was the first time I ever used a torrent. I didn't know what the hell I was doing but luckily it worked. Oh yeah- I was on dialup then too!!! Took all day to get two smallish files 8^)

    Argh!!!

     

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  33.  
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    harbingerofdoom (profile), Jun 4th, 2010 @ 7:54am

    Re: Re: Re:

    why exactly is it that everyone around you has to be held to higher standards than you?


    you fail to grasp the most simple of concepts nearly 100% of the time and then use not just fuzzy logic, but BAD fuzzy logic to twist points to suit your warped world view. add in a good helping of simply ignoring very direct questions when put to you and your propensity for outright untruths and that pretty much makes you a douchy hypocrite.

    "he probably got most of the story from your blog post directly"

    there it is folks... try to say someone is uninformed and didnt really read everyhing in a piece and right smack in the middle of your accusation admit to the exact same behavior. textbook hypocrisy.

     

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  34.  
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    harbingerofdoom (profile), Jun 4th, 2010 @ 7:57am

    Re: Re: Re: Re: Re: Re: Re:

    seems to me you are doing your usual little dancing monkey tricks you pull out in order to try to side track any discussion of any issue. smoke and funhouse mirrors... that really all you have to offer?

    im simply pointing out that
    A) your wrong

     

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  35.  
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    harbingerofdoom (profile), Jun 4th, 2010 @ 8:00am

    Re: don;t worry tony clement makes using a vcr illegal

    lolwut?

     

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  36.  
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    RT Cunningham (profile), Jun 4th, 2010 @ 8:00am

    Re: Re: Re: Re: Re:

    You sir, are a moron. The "masnick writing style" is exactly how you're supposed to write articles on the Internet, linking to your other relevant content. This is how search engines work and this is how people find that other content.

    When you figure out how to be something other than TAM, let us know.

     

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  37.  
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    harbingerofdoom (profile), Jun 4th, 2010 @ 8:10am

    Re:

    here is an interesting thought for you.
    you are right... yup.... 100% hit the nail right on the head there.

    people ARE greedy. that is human nature. to deny it is to attempt living with rose colored glasses on.

    they dont want to just make a backup copy, yup! i want to make a backup copy that works on ANY device i have bought. i want it to work on my linux machines, my windows machines, my ipod and my crackberry. "just a backup" wont do that.

    absolutely correct again with the timeshifting. people dont want to time shift what they can receive in normal time. people want the ability to timeshift at any time. imagine that, wanting an intended function to function at all times, not just when someone arbitrarily defines when it should or should not.

    want it now? absolutely, its called consumerism.

    want it free? im willing to pay up to what i feel something is worth... but hey ill take free any day, yes i will indeed!

    without permission? well, yeah... now that you mention it, why should i have to have permission to use something that i bought in a way that works for ME rather than having to deal with the idiocy of having to buy multiple copies in multiple forms simply because the distribution channels cant seem to figure out how to actually distribute something in a way that people actually want? their inability to service my wants is not my problem, thats theirs. which leads us right back to the first item: greed
    want my money? give me what i want how i want it and you can have it.

    they are not pushing back, they are throwing the corporate equivalency of a temper tantrum.

     

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  38.  
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    Rekrul, Jun 4th, 2010 @ 8:48pm

    When Cross puts all those stories together like that, you realize how much of the last few years has really been about the entertainment industry effectively dismantling the core concepts put forth by Stevens in the Betamax decision.

    You're just realizing this now?

     

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  39.  
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    Anonymous Coward, Jun 5th, 2010 @ 10:55am

    Re:

    Not sure how to break this to you, but Grokster was a 9-0 decision by the Supreme Court, with just a single opinion and no concurring opinion that might serve to qualify the opinion of the full court.

    At the time Justice Stevens was a member of the court.

    Moreover, the Supreme Court spoke approvingly of the Napster decision rendered by the 9th Circuit Court of Appeals. Again, if Stevens or anyone else on the court had had reservations about the Napster precedent, they would have written a concurring opinion to go along with the opinion of the court.

    Like so many others, you appear preoccupied with "technology", which is far short of the mark since cases like Napster, Grokster, and Limewire all turned, not upon the technology, but upon the actions of specific individuals who did much more than simply provide a platform.

     

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  40.  
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    B, Jun 6th, 2010 @ 7:35pm

    Re: don;t worry tony clement makes using a vcr illegal

    Where did you get your facts / numbers from? Don't make ish up to supply your bogus agenda. You sound like the lawmakers in the article. Haters gonna hate, ya hypocrite.

     

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  41.  
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    Ryan MZ, Jun 6th, 2010 @ 8:38pm

    Re: Re: Re: Re: Re:

    Well if you have an opinion about the topic at hand, please, voice it. I would love to hear someone else's take on the issue which could possibly contrast the one I just read.

    But if you're just going to sit there and whine and moan and troll, then go back to your cesspit corner of the internet and leave the rest of us alone.

     

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  42.  
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    Rekrul, Jun 7th, 2010 @ 12:10am

    Re: Re:

    Not sure how to break this to you, but Grokster was a 9-0 decision by the Supreme Court, with just a single opinion and no concurring opinion that might serve to qualify the opinion of the full court.

    I was commenting on the fact that the RIAA/MPAA have been systematically trying to nullify the Sony Betamax decision, not about any specific court case in particular. However since you brought it up...

    Like so many others, you appear preoccupied with "technology", which is far short of the mark since cases like Napster, Grokster, and Limewire all turned, not upon the technology, but upon the actions of specific individuals who did much more than simply provide a platform.

    How about the number of court cases that have used the anti-circumvention clauses of the DMCA to kill products that would have otherwise been legal? How about the fact that the FCC has just granted the first waiver to use Selectable Output Control to keep people from recording early release, video on demand movies (and there will be a second and third...) or even watching them on older equipment? How about the fact that the HDMI standard includes built-in copy protection, which is illegal to bypass, preventing you from hooking up anything but approved devices? How about the fact that making backups of material you own is legal, but if the original is protected, it is now illegal to circumvent the protection in order to do so?

     

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  43.  
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    Laurel L. Russwurm (profile), Jun 7th, 2010 @ 6:43am

    Good Article

    Pulling it all together like this really helps drive it home.

    (Probably why Anonymous Coward is trying to derail it.... I'm getting to the point of not counting AC's links and skipping AC's comments altogether)

    Sadly most people still don't know that these things are going on.   And the reason that they can do this is that the tech community is a "special interest group".

    It isn't just the technology.   What I wonder what great new art, books, music, movies won't be made, or if they are, Independent creators won't be able to be digitally disseminate their creations to their audience because these policies ultimately seek to take out p2p and/or remove all interactivity from the Internet.

    (I suspect they'll keep the "Buy" buttons)

     

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  44.  
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    industry kiss it, Jun 15th, 2010 @ 2:54am

    A reality check.

    Simply put if i was to buy everything on my harddrive i would probably be approximately 50000 dollars in debt, to an industry that couldn't care less if we starve. Just so long as a certain few get richer the fact that our entertainment is almost all we have left means nothing to them. It's not bad enough that we have to get up every morning and slave our asses at a job that also doesn't care about us. It's not bad enough that we have to pay for absolutely everything these days, in certain cases even going to the washroom is a 25 to 50 cent charge.

    Now, we have to pay some rich bitch more money to make a bunch of crap that I'm mainly not interested in, i would never buy because it's not worth it, and as pointed out in the post is technically free to all anyways. I would like to point out that i have no problems supporting artists that do good work. There are many, Steve Roach, the orb, Andre Louis and millions and millions more. These people should be allowed to live on some of the work they produce. I have no problems with this.

    Aaaaahhhh here's the catch you see. When you walk in to an HMV or any other music store for that matter your money is not really going to the artist. Your paying a rich bitch corporation to take your money and force you to go back to work another day. Eating your savings bit by bit just for a round peace of shit that breaks in a year. Pardon me but it's true!. When you stop to think about how much money has been milked out of poor to average middle class people, if there is such a thing anymore is startling. 99
    % of it doesn't even make it to the artist. I would be less angry if the artist got my $16 or what ever a cd is these days. In that case, though a steep price i also recognize that this person may in deed have to live on his or her profits. Do they get a real chance to do this? Well in a few certain cases perhaps. Mitalica hoed them selves out to the industry there rich. That's only because there just fucking the leader. Get real if Mitalica didn't open there metaphorical legs they would be broke just like the rest of us.

    So the next time someone says "don't download this song" tell them to kiss your ass. and download that one just to piss them off.

    By the way? If Mitalica wants to be a hoe, Good for them Just don't take us with you. I refuse to buy any music from the industry. I'll just find another way to get it for free. I say bring it on bitches we'll hold the lines for ya folks. Keep doing what your doing, your doing just fine.

    Someone will come on here and try to discredit this post and others like it with dogma and crap. Just read between the lines. How much money is in your bank account?

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    Polo Outlet, Aug 6th, 2011 @ 1:32am

    Polo Outlet

    Your article swept me away with its vast information and great writing. Thank you for sharing your views with such passion. I like your views.

     

    reply to this | link to this | view in thread ]


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