the US does have this. However, the contract makes some interteresting legal distinctions in an attempt to claim that the contract isn't one sided. The problem is paying for the legal battle to get the contract revoked.
As an additional note, a long legal battle might also list this contract as unenforceable because it is too one sided, that is a contract expresses that one side gives up value in trade for something else of value. But when values are inequitable and/or one side has an unreasonable negotiating advantage, the contract will not be enforceable. Its the legal basis to how some countries have declared the 'shrink wrap licence' (a software licence that you are forced to accept because you can't return your product once you broke the shrinkwrap) unenforceable.
I think I have a great analog analogy for those who still might not understand. I will look at these cases using a famous halloween staple, the unattended bowl of candy with a sign that says 'take some'.
In Aaron Swartz's case, the bowl was JSTOR's, and the candy were articles. He took half the bowl. It wasn't criminal. It is a serious Faux-pas, but there was nothing to stop him. But the best part of his 'crime' is when you translate that bowl of candy to the digital realm. No matter how many times Aaron grabs a snickers bar, there is still another snickers bar. The big concern was that he might sell those snickers bars to people instead of them coming by the house the bowl is at. (its not quite perfect, analog to digital never is).
In Andrew Auernheimer's case, The Bowl was AT&T's, and the candy was customer data. He took a little candy. But then he told every kid in town What that candy was and that an unattended bowl of other candy was there. Again, not illegal, just a major Faux-Pas. And he needed to show everyone what candy there was so they knew they could get the candy, or in digital terms, he needed to scrape that data to prove that you could. THere is a new 'security leak' rumor every week. Proof is needed for me to take the latest rumor seriously.
In the third case I can't establish a good framework. But the fact remains that the behavior might be a Faux-Pas, but mearly accessing the data can't be a crime. If it is then security research goes out the window. the third case is a clear case of how you do 'White Hat' security research. You point out a vulnarability. Then you go back and see if it has been fixed, because if it hasn't you need to report it to a wider audience and shame them into fixing the vulnarability.
No sure if you can. Different platforms, requiring varying levels of authentication and the 'link' button is not always the best option for finding the papers. That said, im downloading them individually so I can build a torrent.
The problem is the initial action is flipped when we talk about digital files. The infringing copy is the one you download, after I distribute my legal copy (because just placing the file on the server in not infringement, it could have been intended for my personal use). But in the physical world the infringing copy is created and then its the illegal copy that is distributed.
From the legal stance, reproduction rights are not violated by the guy with the file being copies online. Its a ridiculous standpoint, but its the standpoint that exists. So when online they need to look at the ass backwards separation of reproduction and distribution rights
...I haven't done anything wrong since I didn't violate the reproduction right
Other then if your act was willful, you are party to the reproduction violations. No reproduction would occur but for my providing the data to copy from. No need involve a seperate, distinct distribution right, for reasons I will list below.
If I make "Harry Potter" available for others to download, how is that possibly fair use on my part or the part of the downloader
Well, that depends on a few things. "Making available" being a very broad statement for example. But lets assume what you mean is that I posted it and gave links to downloaders. How can I claim fair use?
First off, lets assume that Archival and Format Shifting fair use exceptions that apply to the copyright act are granted for the DMCA, so as to focus on the reproduction and distribution rights and not muck the discussion up with DRM-violations. So now I have spent the time and work to create legal, format-shifted copies of the first movie/book. (lets use the movie for my example). The encoding is well received by people in my local community for looking good on a 4" screen while not taking up to much space. I tell people what codecs and settings to use, but they aren't technically literate enough to succeed at the process. Knowing they own the movie in question, I give them a direct file link to my Cloud media file locker I use to store these legal copies. My downloaders, owning legal copies also, have fair use claim to that file. I realize my example is simplistic, but it expresses a fair use claim involving harry potter (Which is honestly a bad example for this). This situation would be considered distribution, because reproduction and distribution legality is considered separately.
The uploader violates the distribution right and the downloader violates the reproduction right. I would argue that even though there are two separate infringements, the uploader and the downloader are jointly and severally liable for each separate infringement.
The distribution violation can't happen without the reproduction violation. The reproduction violation can't happen without the distribution. Its not 2 separate violations. Its one. The uploader needs to show the data is either non-infringing or what sort of fair use claim he could make. The downloader needs to show either he has been misidentified or he had fair use claim on the data.
In your original example the same argument prevails. The guy distributing your 5000 copies likely has good reason to believe the below-market-price books/DVDs are not lawfully obtained and should have done his due diligence before he became an accessory to your Reproduction-with-intent-to-distribute operation. Again, your 5000 copies harm no one until you distribute. It is only the combination of violating BOTH rights that a violation of either occurs.
The argument I think Mike is making is that when he 'makes it available' no infringement occurs until the download occurs. Having it in a 'peer-to-peer share folder' (what, are you still using Kazaa?) does not mean its being downloaded. I can have a legitimate fair use claim to placing it on that network initially (esp. if I'm using a torrent or file locker which are the current p2p Demons). And some can have a legitimate fair use claim to download it. But CEA's don't want to determine if any specific instance is fair use. (and according to them, can't) So instead they argue that the uploader by making it available are, by definition, attempting to distribute in an infringing manner.
I know too many Luddites and techno-phages to think that everyone can format-shift or create archival copies without assistance. Fair-Use exists.
Additionally, the final argument is that the "party making availible" and the "Party downloading" both, separately, make the CEA whole in these cases. In a normal theft, a judgement for 'Damages' would be levied against the perpetrators as a whole. If 2 people stole 5 CDs from me (Retail value $20), I would probably get my property back, and possibly a portion of the fine. In the case I can't get my property back, Id get the $100 plus that fine.
But in the 5 CD (retail value $20 each) digital download Copyright 'theft' case, The downloader is paying a $20,000 DMCA fine, and the person making it availible is facing $20,000 in back licencing fees. The liability is put on both of them individually, not as a unit. Legal realities mean that liability flips between the downloader or the downloadee depending on which the CEA wants to sue, and under which right they think they have the better argument for.
Apparently, reading the further debate above, I read a different position into Mike's mouth. I stand by my solution, believing it to solve the copyright laundering issue presented by the AC mike is arguing with above.
The copyright holder's distribution right has already been exhausted by the first sale doctrine, so Netflix and its users are free to distribute the DVD as they wish.
Only if the Production happened in the US. Its a well noted case in the SCOTUS debating if first sale is exhausted otherwise. Because of the way distribution rights are handled separately from reproduction rights, the reproduction can be legal, but the distribution illegal. Mike's argument should be that we need to twin these rights. Because it is only with intent to distribute or intent to cause to be distributed that reproduction is infringing. By not treating them as separate rights, a lawfully reproduced copy is one that is lawfully distributed. Therefore the textbook you legally obtained in Mumbai is legal to sell in the US. No 'Fair Use' exception for your Toyota-brand car required (as suggested to the SCOTUS in the case I am referencing).
This also solves the 'what constitutes the point of infringement on the internet' debate that currently exists. Uploading the file is not the infringement, as valid fair use claims exist. The presence of a third party downloading the file is the point of infringement. Then you can defend against individual claims of infringement and either show fair use or face the piper for your pirating ways.
TL;DR, Merge the distribution and reproduction rights such that an infringing copy is always infringing no matter how much laundering you do, but a legal copy can not become infringing via violations of distribution windowing.
Because Absent a fair use clause, you can not use copyrighted works in any form without permission, which means $$, or ££ in this case I guess.
In America this sounds stupid, because we have, since the inception of the ACA, had fair use.
It makes common sense that if I said "I love Weird Al's 'Alpocalypse'", and I was a music reviewer whose opinion mattered, Weird Al might want to use that review to market sales. That's marketing 101, and is used all over American media.
The UK is seeing the same issues with copyright holders tightening the reigns. But without fair use, heavier abuses of the system can occur. Such as preventing standard marketing until the holder gets his cut.
Re: Re: A good example of a business missing key economic principles
Very true. The basis behind the drop in per viewing costs after the first few weeks is that ticket sales volume declines dramaticly. On the other hand, you still have effective scarcity. There remain a limited number of seats. The $1 theater regularly fills each room. Its the ONLY way they sell movies, except for midnight showings of The Rocky Horror Picture Show which have sizable demand without the price drop.
Its supply and demand. After the first few weeks there is a massive drop in demand. So to cover excess Supply, you drop the price and increase demand (by accessing people who will see the movie in a theater for a lower price). No longer is there large amounts of excess supply, and Scarcity does become a factor again, but not enough to overcome the far lower per viewing costs. (
A good example of a business missing key economic principles
this is a great example of how incorrectly identifying market forces will hurt you. Moviepass attempts to become the Netflix of theaters, while failing to understand the functional Markt behind Netflix. Netflix works because there is no scarcity in streaming films or providing rental copies. because the 'per viewing' cost is next to free, infinite use is quite feasable. On the other hand, while there is no scarcity in the movie itself, space concerns means there is scarcity in theater viewings. this, combined with high per viewing costs for first run mainstream films makes 'unlimited' use infeasable.
Examples can be shown where after first run something like this could be viable. I have a theater near me that does $1 viewings of popular films after first run. the low-per viewing costs offset the scarcity. I could easily see them implementing an all you can watch option. But the math really isn't good for a major theater running initial distribution films.
Re: Sigh. Technical complaint by some idiot alleging "lost his" data".
Actually, the arguments here have NOTHING to do with the income megaupload is accused to have gained via allowing piracy. It has everything to do with my backup and distribution copies of various legal programming projects that I had been using Megaupload to store (along with other services, which has minimized my exposure in this case). That is to say legal, non-infringing data which, in possible violation of LE and governmental responsibility to minimize impact to innocent bystanders, has been sized and was designated to be destroyed.
MPAA's filing asks the court to not 'Compound the massive infringing conduct..." of Megaupload. I would posit that giving users the ability to request specific files, perhaps after being given access to a directory listing of their stored content, could provide a clear suggestion of who is looking for legitimate, legal data, and who is looking for infringing content. That would really take the wind out of the sails of us pirate apologists, leaving only the sizable infringing content to remain right?
Then again, given the volume of data and files the government probably acted the way it did because there is no quick, efficent way to dump all the non-infringing content. And no way to determine how much of it is infringeing. As indicated by the MPAA itself, who has argued that there is too much content for them to introduce human examination of all potentially infringing content. Then again, supposedly Google has a way to figure it out, right? they should be able to whip up a filter in minutes, and run it for a week and you get the new non-infringing data.
Re: Not difficult: copyright is the right to control copies.
The Supremem court is clearly claiming in this quote: "You're aware of the fact that if we write an opinion with the -- with the rule that you propose, that we should, as a matter of common sense, ask about the consequences of that rule. And that's what we are asking." The SCOTUS is suggesting that once the ruling occurs, once its codified, where is the line drawn? It appears Wiley's line is profit motive, which kills a large portion of the amazon and ebay market. The lawyer also argues that its fair use, but as we've discussed before Profit Motive does not deny fair use claims.
I am surprised that you, OOTB, are arguing for Corporate interest. I thought corporations were the root of all evil?
Also, the "no evidence of real harm"? You are taking that out of context and applying it in the wrong direction. That test applies to Copyright holders arguing that the market is harmed by piracy. The arguement goes to show that the statement by rightsholders is demonstratibly false.
Does not apply to whether or not this action is legal. Evidence of market harm has already been shown. The textbook market has been depressed, causing 'harm'. The question is whether that 'harm' was done legally, and is therefore is actually competitive practices rather then actual harm, or is illegal and therefore actual harm. Techdirt, Kirtsaeng, and I all agree that this is the result of competition in an overly inflated market.
I enjoy the fact that the applicable law, as viewed by Kirtsaeng's council, agrees with the viewpoint I argued at length in the last article. That its not because "US copyright doesn't apply so I get free reign", its because if the "...making was lawful, which is to say was it authorized,..." by the Source of the copyright. The key moderate argument which can get this passed.
The Bern Convention is the legal stick you wave to argue that in all signatory nations, a big companies copyright is valid, and any sales are subject to certain understandings, such as the RIGHT OF FIRST SALE. So in many countries, such as England, First Sale Doctrines should already be in place (in contrast to Costco vs. Omega). This leaves countries whose copyright standards are significantly different then those presented in the Bern Convention
Now, you say that "The legality of a citizen's actions is stipulated by law, not by treaties." What law applies in this case? The country of sale? My argument is that if a "rights holder" releases in a country (willingly) that does not hold to the Bern Convention he, as the AC suggests, waives his rights to Bern-Convention-based international copyright protections. However if some pirate releases his work in a country without said protections, he shouldn't lose those protections when those works return to the US. That is the distiction between the argument AC posted and the arguement I posted. If its an authorized sale, its legally yours, if the sale is unauthorized, you shouldn't be making money on those illegal copies.
Imported, not reimported, in all likelyhood. Aside from that, the linked Ars Technica article above clearly shows that the entirety of the UK is included in those 'Third World' Countries (I check UK textbook listings myself).
As for Milk and Gas? Other market forces are at work. Factor one is the fact that milk in a California store can not, by any means, be a physical substitute for milk in a Florida store. Same for gas stations that are widely disbursed. More generally, the same can be said for many goods with floating price points over the country. Hell prices for some goods change depending on the store or part of town you are in. But for consumer goods where time and location stop being concerns, the supply and demand concerns change. Price points do not fluctuate much if at all. Barnes and Noble in New York sells my favorite trade paperbacks for the same cost as the Barnes and Noble in Belton, MS. Because that Belton copy can be a real substitute for the New York copy. The same for Electronics, Video Games, music, movies (DVDs, theaters are subject to time and location constraints) Despite a widely varying COL over this country, most consumer goods do not vary much, and that in the fault of the Federal government preventing tarrifs on interstate goods and more recently the internet allowing better price checking.
The fact is, we now know textbooks have some of the highest markup over Cost of Production as any good. And even in non-innovative industries (say, low-level accounting), new textbook versions keep being released to justify the need for both high prices (Kepp adding more fixed costs) and the depression of secondary markets (changes to review questions invalidate the use of older versions when teachers update).