Just Because A Banana Can Be Used To Rob A Bank, It Doesn't Mean We Ban Bananas
from the ban-ban-bananas dept
We recently wrote about the RIAA’s new war against software that can be used to record or download YouTube videos. As we noted, such software has substantial non-infringing uses, but the RIAA wants to ban it anyway. Michael Weinberg has a great response, in pointing out that just because something can be used illegally, it doesn’t mean we ban it:
It is possible to use a banana to rob a bank. It is also possible to use a phone to defraud people of millions of dollars. But we do not make possession of a banana or the use of a phone illegal. We make bank robbery and fraud illegal. We do not outlaw bananas and phones because bananas and phones serve any number of socially useful services. It would be dumb to outlaw them just because someone could use them in a bad way.
That’s why the test that the Supreme Court identified in the famous Betamax case is so useful. As long as a technology is capable of “substantial noninfringing uses” we welcome it. Because those substantial noninfringing uses are great to have, and we cannot stop innovation just because it can sometimes be abused.
On our last post about this, someone brought up the anti-circumvention issue, noting that if the software circumvents DRM, then under the DMCA it’s illegal across the board. But all this really highlights is the insanity of the anti-circumvention provision and how it makes perfectly legitimate activity “copyright infringement.” Think about it: if you use this to make a perfectly legal recording of some content, then none of the rights covered by copyright law have been infringed. And yet it’s still illegal solely because of the circumvention? That makes no sense. How can it be illegal if no illegal copy was actually made?
Filed Under: anti-circumvention, dmca, drm
Companies: google, riaa, youtube
Comments on “Just Because A Banana Can Be Used To Rob A Bank, It Doesn't Mean We Ban Bananas”
People
Oh noes! People can be harmful, we should outlaw them!
Re: People
shh! Are you trying to start the robot revolution?!?
Re: Re: People
I for one welcome our robot overlords built by the RIAA.
I expect them to self destruct about 2 minutes after they are brought online as they fail to process the Cartels directives and the logic loop causes them to explode.
Re: Re: Re: People
Domo arigato, Mr. Roboto overlord.
I’m going to go ahead and punish myself for that one.
Re: Re: Re:2 People
Is that a lawsuit in your pants, or are you just happy to see me?
=P
Re: Re: Re:3 People
Weird, how’d my post end up here? Guess I need more coffee.
Re: Re: Re: People
Nah, here’s how it’d go.
*AA assembles robot horde and turns them loose. Robot horde gets into an area that AT&T swears has three bars of signal and shuts down. Technicians later find it was due to losing the constantly required Internet connection for the AI software’s DRM.
Re: Re: Re:2 People
or the Cartel expected other people to pay the bills to run the DRM server. They do have a tendency to expect others to bear the costs of “protecting” their IP.
Re: Re: Re:3 People
Funny how that works. Like how retailers pass on the cost of shoplifting and anti-shoplifting measures in the form of higher prices to law abiding customers. Outrageous.
Re: Re: Re:4 People
Interesting that you should bring up shoplifting. Many studies have shown that more shrink comes from inside employees as opposed to external customers. Yet some retailers insist on putting their customers through more scrutiny (receipt checkers at the door, for example) instead of their employees.
Re: Re: Re:5 People
Now, let’s not let facts get in the way of some really good whining.
Re: Re: Re:5 People
I don’t know about the studies, but I do know that there are cameras in the stock areas and above the registers at my local grocery store. Presumably, those are to keep employees honest.
Re: Re: Re:6 People
Having worked in a grocery store while in college, including in the back accounting office where all the money was counted, I can tell you that those cameras are pretty useless in all but the most extreme situations, and are rarely reviewed unless management is already aware of a major issue.
Re: Re: Re:4 People
Oooh look a strawman!
How much money did they pay Google for the development and maintenance of ContentID?
How much money did they spend on “enforcement” to get the budget to include $10 million for ICE to be their private enforcers?
How much money did they spend to get the special access to HotFile where they committed copyfraud?
How come they don’t raise prices and pass the costs on, because they can just demand everyone carry the burden for them.
Shoplifting means a physical item is stolen.
“Piracy” means a copy of an item was made, the original is not lost.
Quaint you talk about the law abiding customers, they are the ones forced to be subjected to unskippable anti-piracy messages… and these are the people who aren’t pirating, seems stupid.
Re: Re: Re:5 People
1. Disagree on the straw man accusation. Banks and other financial institutions have a responsibility for compliance within the financial ecosystem, You come in with bags of cash or engage in suspicious activity you have a problem with law enforcement. Why should Google and others in the internet ecosystem bear no responsibility to guard against lawless behavior. The banks clearly pass on their costs, and so do the internet players.
2. When fraud is detected, there’s a host of financial agencies that investigate. Those are taxpayer funded.
3. Not familiar enough with the Hotfile accusation to comment.
4. SOPA attempted to shift the burden to content companies by giving them the right of private action. This would have put most of the burden on content to police infringing foreign actors after getting an order from the judge. You opposed that. Now you oppose anyone else policing the rights of content owners.
5. I know the difference between theft and infringement. One involves both unjust enrichment and depriving someone of something of value. The other is simply unjust enrichment. In the words of the Supreme Court, “infringement is nothing more than garden variety theft”. Oh, and both are crimes.
6. Yeah, the anti-piracy messages seem dumb. Maybe it is to provide prominent notice to guard against the “I didn’t know” defense. Or maybe it’s just dumb. Take your pick. Personally, I find it less painful than the endless trailers.
Re: Re: Re:6 People
Banks and other financial institutions have a responsibility for compliance within the financial ecosystem, You come in with bags of cash or engage in suspicious activity you have a problem with law enforcement. Why should Google and others in the internet ecosystem bear no responsibility to guard against lawless behavior.
The situations are extremely different.
Banks do bear some of those costs, yes. They also have very clear guidelines on their responsibilities on how to prevent major felony crimes, such as money laundering.
There are no clear guidelines when it comes to copyright infringement. When Viacom sued Youtube, even the content owner didn’t know for sure which videos they had uploaded and were infringing. It’s also just copyright infringement – a civil matter – with no provable harm from the supposed unlawful act.
When fraud is detected, there’s a host of financial agencies that investigate. Those are taxpayer funded.
Again, because they are criminal charges, not civil.
SOPA attempted to shift the burden to content companies
That’s a laugh. The costs are already supposed to be on the copyright holder, and except when they’re subverting the DOJ, ICE, and other law enforcement agencies, they are.
unjust enrichment
You’re back to this nonsense again? Instead of going back and forth, the quickest legal definition I could find was on Wikipedia:
“The North Dakota Supreme Court has ruled that five elements must be established to prove unjust enrichment:
1) An enrichment
2) An impoverishment
3) A connection between enrichment and the impoverishment
4) Absence of a justification for the enrichment and impoverishment
5) An absence of a remedy provided by the law”
* Schroeder v. Buchholz, 2001 ND 36, 622 N.W.2d 202
So, lets see if it fits.
1) Ok, someone has enriched themselves with knowledge/content/entertainment
2) Fail. No one is impoverished as the result of copyright infringement. This also knocks out 3 and 4.
5) There’s copyright law and all those statutory damages we talk so much about. Fail as well.
The term doesn’t fit, just like theft doesn’t match copyright infringement.
Re: Re: Re:7 People
From Black’s Law Dictionary:
Unjust enrichment, 1. The retention of a benefit conferred by another, without offering compensation, in circumstances where compensation is reasonably expected. 2. A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense. 3. The area of the law dealing with unjustifiable benefits of this kind.
Re: Re: Re:4 People
I think you suffered extreme analogy failure.
A better analogy is how retailer are always demanding that the manufacturers of pockets, bags and backpacks bear the cost of shoplifting.
Re: Re: People
Good new everyone!
Is that a banana or your weapon that you're waving at me?
We’d better ban waving, just to be safe.
Hey! What about rocks?
RIAAOgg not like rocks! Rocks can be used for harm! Ban them! For that matter, what about that new innovation, fire?
Anti-circumvention?!
Lots of these sites are using YouTube’s official API. Some of them maybe do so in violation of Google API ToS, that not the same as removing macrovision malware (for avoidance of doubt that not the problem of anyone other them the webmaster; the users of these tool never agreed to the API ToS).
In some countries their maybe an issue, on the part of those who use these site with YouTube main ToS, but that can be avoided by switch to localization the definitely doesn’t have anti-downloading rules, e.g. the South African localization, and just like breaking the API ToS is not same as removing macrovision malware.
It is possible to use a banana to rob a bank.
uh, what?
I encourage you to think about that a bit more.
Re: Re:
People have used fingers.
Re: Re: Re:
So what????
BIG FUCKING DEAL.
Nobody cares about the outliers you people cling to every day; like a non-swimmer in the middle of a life raft in every story here, except those like yourself that are so very sick.
Re: Re: Re:
AC said: “People have used fingers.”
Not any more. The MAFIAA shut down the second-hand finger market over spurious ‘copyright concerns’.
Re: Re:
http://www.foxnews.com/story/0,2933,520399,00.html
http://articles.mcall.com/2010-03-03/news/all-a9_5bananarobber.7194298mar03_1_knbt-bank-teller-bank-surveillance-video
Re: Re: Re:
Damn, you beat me to it! It took all of, what, 30 seconds to Google it?
Re: Re: Re: Re:
Slightly longer, hits for the original story and the story here were populated higher in the hits.
Re: Re:
You haven’t read the news about bank robberies these days. I slip of paper saying you have a gun or a bomb can and has been used to rob a bank. Bank employees are trained not to risk their lives for federally insured money.
Re: Re: Re:
Yeah, we should add slips of paper to the list of banned articles!
Re: Re: Re: Re:
I never liked having to fill out deposit slips anyway.
Re: Re:
As others have linked, we don’t need to. But you do.
Scratch that, you probably just need to Google it-….ooooh, you can’t use Google because it’s an evil ultra-being bent on destroying the world by giving people what they want….
Re: Re: Re:
you forgot the end of your sentence:
…for free, without compensation to the rightful owner.
You’re welcome.
Re: Re: Re: Re:
THE GOOGLE IS THE EVIL!!!
http://arstechnica.com/gadgets/2012/06/google-play-gets-tv-movie-and-magazine-purchases-for-nexus-7/
Google today announced the addition of TV, movies, and magazine purchases to Google Play. The service will launch today with major partners on board already. Partners include Disney, ABC, NBC Universal, Sony Pictures, and Paramount for video, and Hearst and Conde Nast for print. Previously, only rentals of such content was offered through Google Play.
SOMEBODY HAS TO STOP THE GOOGLE!!!
Re: Re: Re: Re:
“you forgot the end of your sentence:
…for free, without compensation to the rightful owner.
You’re welcome.”
And here you highlight your confusion. What I want from Google is NOT content. What I want from Google is directions to content. Google gives me what I want and they are the rightful owner of that service.
Content repositories, on the other hand, can be either infringing or not. The people you have an issue with are those holding infringing property, not the mapmakers that show me the streets to get there….
Re: Re: Re: Re:
Let me fix that for ya.
“…and that is free directions, without having to pay rent for normal uses that fall outside the scope of the work, which some people want to make it look bad and they call themselves “rightful owners” of all intents and purposes, they claim to own all paths and ways and want everybody to pay tribute to them or face severe consequences at their hands”
Re: Re: Re: Re:
What’s sad is that you probably believe this crap as well.
Re: Re:
Are you commenting on how stupid you would have to be, to be robbed by someone with a banana? Or are you saying it’s never happened, because it most definitely has happened. http://articles.mcall.com/2010-03-03/news/all-a9_5bananarobber.7194298mar03_1_knbt-bank-teller-bank-surveillance-video
Anti-circumvention prevents innovation
DVD playback on Linux is still of questionable legality as a result of DMCA’s anti-circumvention rules. DVD decoding libraries and software are usually shipped in a crippled form on Linux distributions because they are not licensed to playback DVDs. As a result, a lot of Linux users must either compile their own from source code, or subsequently download the necessary libraries from foreign country websites where the laws are less ridiculous.
Shouldn’t it be legal to playback a DVD on a Linux desktop computer? Wouldn’t this be within the realm of the assumed rights of someone who has purchased a DVD for purposes of personal playback?
I participate in another alternative operating system project called Haiku – and we have the same problem. We cannot release Haiku with any built-in DVD decoding software (even though it is freely available and open source), because Haiku, Inc. is a U.S. corporation, and distribution of unlicensed DVD playback software is a potential violation of DMCA.
A similar issue affects emulation of historic game systems, even if you own the original game disc or cartridge – if you don’t own a working device to use it on, or you wish to use it on a different display device, you are limited by anti-circumvention laws.
Re: Anti-circumvention prevents innovation
In most distros this can be handled by simply by adding a repository (hosted in country without insane anticircumvention laws).
But should it be fair use anyway?
Re: Re: Anti-circumvention prevents innovation
They scramble, I descramble.
Re: Re: Anti-circumvention prevents innovation
Yes, that’s basically downloading after installation from a foreign country where the laws are less ridiculous.
It’s …ridiculous.
Re: Anti-circumvention prevents innovation
The kind of funny, kind of sad part is that you don’t have to break the encryption to pirate a DVD, the pirated disk will still work on a normal dvd player copied encyption and all.
Thus banning decss does not help stop piracy, it just stops paying customers from using the product the way they want. You’d think the MPAA hates money.
Lemme hear you say this s*** is bananas...
B-A-N-A-N-A-S!
We obviously need to ban forks and spoons, they’re responsible for the people shoveling the food into their mouths that make them fat.
The use of fingers to eat is considered circumvention of the ban and is punishable by up to $150,000 and/or three years in prison.
Re: Re:
Sporks FTW!
Re: Re:
In china they use chop sticks… that is why you never see a fat person there. It’s to hard to eat a lot of food with chop sticks.
Re: Re:
Plus the infringing fingers are cut off.
Re: Re:
Don’t forget finger forfeiture
My best guess is that the content industries are hoping to take a case similar to “Betamax” up to the Supreme Court and hope for a reversal of precedent. There’s an essay out there about how narrow the “Betamax” decision was, and how the court only kept the VCR legal by manufacturing law out of whole cloth: arbitrarily declaring that time-shifting was not copyright infringement, even though it involved the making of a fixed reproduction of the TV show, clearly one of the protected rights under copyright.
My (non-lawyer) observation is that “Betamax” was seriously crippled by “Grokster,” with the court attempting to thread the needle by finding a difference between “a tool” and “a business.” In the Internet/web world, most tools will exist because “businesses”, or something business-like, makes them available on the web. In “Grokster,” the court claimed that it was not rolling back “Betamax,” but this seems like a statement contradicting the obvious points of the “Grokster” ruling.
Re: Re:
I generally agree and think the Court will some be forced to bring some clarity. The content community, tech firms and users would all benefit from clear guidance.
Well I guess the argument comes down to “substantial”. How many of the bananas consumed globally are used to commit robbery? I’d guess a decimal point followed by a lot of zeroes. Compare that to the instances this work-around will be used for infringement versus non-infringing use and you see the argument fall apart.
Re: Re:
Well I guess the argument comes down to “substantial”. How many of the bananas consumed globally are used to commit robbery? I’d guess a decimal point followed by a lot of zeroes. Compare that to the instances this work-around will be used for infringement versus non-infringing use and you see the argument fall apart.?
Not really. The actual words in the Betamax case were “…it need merely be capable of substantial noninfringing uses.” Which mean it doesn’t actually have to have any actual uses, just to be capable of it.
And aparently in the Betamax case 9% of noninfinging uses were sufficient:
Source: EFF
Re: Re: Re:
I just noticed a applicable cartoon on the EFF site:
https://w2.eff.org/legal/cases/betamax/betamax_cartoon.jpg
Re: Re:
You mean like all forensic tools that are used to image storage devices for later analysis they are all illegal under the DMCA are they not?
Re: Re:
Also you have backup imaging software that is used by all companies that have important data, that is illegal is it not?
Re: Re:
Dell and all their clients under that assumption are all criminals today.
https://www.kace.com/land/ar-imaging?land=ar-imaging&ad_group=Imaging&utm_campaign=DACH+English&utm_source=google&utm_medium=cpc&campaign_id=701400000009UzE&gclid=CNDml-rA77ACFdKBfAodugNIwg
Re: Re: Re:
“Dell and all their clients under that assumption are all criminals today.”
I see your disk imiging and raise you the “copy” function with which I made an unauthorized copy of your statement. Its sole purpose is to duplicate content so efficiently that in the space of a heartbeat I was able to make the following copies:
1)into my computer’s clipboard
2)into the comment form
3)when hitting the “preview” button (x2)
In addition, when I hit “submit”,
5)a copy will be set in a database somewhere
6) -> ?) every time the page is loaded, I will have caused yet another unauthorized copy to have been made.
I thereby add to Dell and their customers anyone who has created a web browser, text editor, paint program, or any other piece of software that has a copy/paste function.
*a lot of zeroes and a one*
Re: Re:
Don’t worry. We already know that industry shills are completely ignorant of 0s and 1s…
Of course-- but we do ban brandishing a banana
We ban or put limits on many dual-use technologies. Burglar tools, for instance, are illegal to possess in many states. Some locksmithing tools are also illegal to possess in some places. If they’re not illegal to have, they become probable cause for search.
And let’s make this more real. Let’s say you walked into a bank with a gun. Let’s say you take it out or the clerk sees it in your pants. Let’s say the clerk sounds the silent alarm and the SWAT team comes in and shoots you. Sure the second amendment protects your right to possess that gun/banana, but I don’t think the jury is going to blink when they hear that you were holding a gun in a bank.
So be careful with this analogy. It actually strengthens the arguments for things like deep packet inspection that target torrent users. Or perhaps ISP users with a usage profile similar to file sharers.
Re: Of course-- but we do ban brandishing a banana
I think they are illegal to sell to someone without a license, not possess. Very different.
Re: Of course-- but we do ban brandishing a banana
And if *EVERYBODY* in the bank had a gun because we didn’t live in a hypothetical nanny state where you’re not trusted with a banana; then nobody would care about you walking into a bank with a gun.
Though the guard might glance at you funny if you should take it out and aim it at somebody for no clear reason.
Re: Of course-- but we do ban brandishing a banana
You try that in any of the banks in California, you won’t even make it IN the bank. You’ll trip the metal detector and be stuck in a 3′ x 4′ room with locked doors and bulletproof glass until the cops show up.
Re: Re: Of course-- but we do ban brandishing a banana
Now, I know you’re probably making that up – because a metal detector can’t tell if it’s a gun or some other large metallic object (like say, a bag of coins, a wheelchair, prosthetic leg, etc.).
Re: Re: Re: Of course-- but we do ban brandishing a banana
http://safeandvault.com/index.php/electronic-security/entrance-safety
Or not.
Re: Re: Re:2 Of course-- but we do ban brandishing a banana
Never seen anything like that installed at any banks I go to in California (I’ve lived here my whole life…)
Perhaps this is something they do in big cities?
Must be constant fun! Also looks like it’s not necessarily automated, and requires constant monitoring.
Re: Re: Re:2 Of course-- but we do ban brandishing a banana
> Or not.
The made up part was ‘in any of he banks in California’. None of the banks I’ve entered in the L.A. area have such a thing, and I’m actually armed when I do.
Re: Re: Re:3 Of course-- but we do ban brandishing a banana
http://www.sitec.de/en/complete-solutions-turn-key-projects/courtyards-secure-entrances/
That may be, but even so, the next time you go to a bank you could pay attention to the doors you cross to enter noting the layout of the entrance, some security doors actually look nothing like security doors and are big(see link above).
If you have to cross a set of walls it is probably a man-trap nowadays even if it doesn’t look like one.
Re: Re: Of course-- but we do ban brandishing a banana
I voted funny on this because “never been to California” or “never been in a bank” weren’t options.
Re: Of course-- but we do ban brandishing a banana
Except you tried to change the original argument from banning bananas to banning brandishing them. That verb belongs to you, not the original argument. Yes, it may be illegal to use a banana to rob a bank. It is not illegal to own, possess, or consume or banana. Or carry one into a bank.
Re: Of course-- but we do ban brandishing a banana
In many states it is legal to openly carry and many do even into the bank.
I used to have a concealed carry permit in California and have gone into my Bank on numerous occasions carrying a .45 under my unzipped jacket.It was plainly visible for anyone looking.
Re: Of course-- but we do ban brandishing a banana
We also have competitions for lock picking 🙂
Lockpicking porn shop.
http://www.lockpicks.com/?gclid=COfc39nB77ACFYwQfAod_GkLvA
Locksport(the art of lock picking competition)
https://en.wikipedia.org/wiki/Locksport
http://www.huffingtonpost.com/2010/07/28/locksport-competitive-loc_n_661773.html
Thats exactly the point us Canadians were trying to make, yet the Harper government still passed this anti-circumvention abomination into law. The lobbyists keep spouting their propaganda about the “benefits” of TPM’s.
The SCC now has a lot of work on their hands to find this bullshit unconstitutional.
Harper and his cronies wanted into the TPP so badly that we all got screwed as a result.
A Perfect Merger
“Just Because A […] Can Be Used To Rob A Bank, It Doesn’t Mean We Ban […]s
The NRIAA…
What happens when someone turns a dildo into a shank to murder someone by stabbing them in the ass.
Re: Re:
Forgot to add it would probably be considered a weapon of ass destruction.
But the problem isn’t the banana to the RIAA, it’s the banana tree!
Kill the bananas and you help off the banana tree by stopping it from spreading!
http://www.youtube.com/watch?v=4bCyIAsSid8
The TSA outlawed nail clippers…. Why can’t other smart organizations outlaw similar things
/s
What if you were robbing a bank with a banana, while your hands were also bananas…http://www.youtube.com/watch?v=RO10s_HK6d0
Re: Re:
Then a real superhero would step in to stop you! http://www.youtube.com/watch?v=Hq2KXudEjkI
“But all this really highlights is the insanity of the anti-circumvention provision and how it makes perfectly legitimate activity “copyright infringement.””
Just picking a technical nit. Violating the anticircumvention provisions is an independent ground for liability. It is not “copyright infringement.”
more to the point, how can you make a legal copy of the contents of a disc if to do so means circumventing the protection? eg, you can copy the music but you cant get to it because you would have to remove what’s stopping you from copying the music. the person who thought this up was more than really clever, he was taking the piss out of everyone, including the judges. considering they are supposed to understand this type of thing, it doesn’t bode good for those judges, does it?
Re: Re:
Legally you can’t, but aside from that you can bypass DRM in a number of ways in your own home you just can’t tell anybody about it or anybody who would denounce you.
Those laws are just like the ones in Japan, people just keep doing it, they passed the most hilarious laws over there, but everybody is doing Whinny and the police only manage to prosecute a dozen people a year.
Lets not forget France with Hadopi.
It reminds me of the South American countries and their bureaucracies, for every single thing you want to do there is a rule somewhere and so people keep using that to extort money from business, that is called corruption there, and apparently the US wants to become a developing nation legally.
They are just making any rules they can so that nearly everything on the internet not paid for is illegal.
So, because there’s a chance that I might do damage to some corporation’s rights, that gives the government a 100% chance to do damage to my personal rights through these laws? Fantastic.
Give a man a banana,
and he can rob a bank.
Give a man a bank,
and he can rob the world.
Another absurd thing is that copyright infringement is already illegal.
If someone doesn’t care about copyright law then why whould anti curcumvention law be any different?
Loony Tunz
When Donovan (Leach) released a spoof pop hit song in the late 1960s titled Mellow Yellow (“electric banana”), a town in Southern California tried to pass a law prohibiting the sale of bananas to anyone under the age of 18. I know; I was there.
Speaking of bananas...
Penises can be used for rape so let’s castrate every Man…
This, in turn will help the 1 percenters…
In time the population will die off leaving only thode who will be able to afford to buy laws exempting them from castration so their families will flourish.
I say let’s beat ’em with a chair…
Oh shit, they’ll make chairs illegal.
We’ll have to stand forever.
I know someone who makes music videos and posts them on YouTube as well as selling the music through iTunes and distributing it for free on a website that *really* doesn’t like smart phones. So when someone contacts him saying they wanted to download a free copy of one of his songs but can’t access the content, he directs them to YouTube audio rippers and tells them they can get it that way. That’s an explicit licence to use those tools, so such use is completely non-infringing.