Except that the entire focus of the article was on the aiding and abetting charges. In order to show that Megaupload "aided and abetted" criminal infringement done by their users, they have to show that a specific user committed criminal infringement.
And they have not done that. So, Mike is entirely correct.
Separately, that specific allegation - even if true - probably doesn't rise to the level of criminal infringement. But that allegation was not the basis of the aiding and abetting charges, so it's irrelevant to that discussion.
So, once again, you have shown that you are the one that is "slimy and dishonest" (your words).
...is one of average_joe's favorite go-to lines. (As is "on the merits.")
Could there be sock puppetry at work here?
I don't know, but it wouldn't surprise me, since 1. AJ has admitted he posts anonymously, 2. he has proven to be fundamentally dishonest, and 3. he's the only person in the universe who honestly believes he's ever won a debate with Mike.
Re: Re: Yes, it's trolling and yes, it's ridiculous
then you said that his victims should consider paying up and playing along
Except he said no such thing. He said it was a good idea for "the tech industry to think about participating in the case," not that it was a good idea for them to "pay up." Not once did he say that the tech companies should give in to the patent trolling, just that they have an interest in the outcome of the case.
you can't just go to the USPTO and say "I want to patent the wheel". You can't because prior art exists.
Actually, yes, you could. The patent examiner would do a cursory search for prior art, but patent examiners are notoriously lousy at this, because a) they're not experts in the field, and/or b) they're swamped, and/or c) they're under pressure to approve as many patents as possible.
Then once someone "infringes" by making a wheel of their own, they get sued by the patent holder. It is now the defendant's burden to show that the patent is invalid, as an affirmative defense.
That actually happened in the Apple v. Samsung case. Apple's "rubber banding" patent was invalidated as prior art - after the jury had awarded a $1-billion judgement against Samsung.
If IV trolled someone but then pointed out that they should cave in because it was in their best interests on some unrelated matter, do you think Mike would think it was a good idea then?
Does Mike think it's a good idea now?
No. He called it "a potentially poorly thought out strategic move that could backfire." Admittedly, I'd like him to use stronger language too, but what can you do.
On the other hand - if it were IV doing this sort of trolling, you would be on their side, saying that they're just "protecting their property," and that anyone who is against it just hates patent law and loves patent piracy, or some such nonsense.
Then, spam the comments with some misreading of unrelated case law, or misstatements of the Founders' opinions, or multiple "Y u no debate meeeee!" posts at Mike, or some other idiotic attempt to derail the conversation. Just like you always do.
I don't think the DMCA applies in criminal cases, but even if it did, what's going to happen that would affect others like Google?
That's not the only issue, of course, but even if it were, then it would mean that the government could seize Google (or whoever the next Google is), even though they are completely compliant with the DMCA.
All they would have to do is take Viacom's accusations (or whoever the next equivalent of Viacom is), claim that shows probable cause for criminal infringement, and boom! Instant seizure, shutdown, and arrest. No DMCA defense, no advance notice, no prior chance to defend their actions. And all their assets would be frozen, so no money to mount a legal defense.
I'm asking Mike to admit that this would weaken some of the rights that copyright holders have as far as anticircumvention is concerned.
So, Joe, can you point to anywhere in the copyright statutes that says that copyright holders have a right to control all access to the works that they authored?
No, you can't, because that was never a right that was granted to them.
And, clearly, Congress did not intend to grant copyright holders those rights. That's why they explicitly included a "savings clause" in 1201(c): "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title."
This bill would merely clarify that intent - nothing more.
Furthermore, as it stands, this statute applies to much more than copyrighted material. Let's take the classic example: "jailbreaking" your phone so that you are able to switch to a different carrier. If you did this, what access to copyrighted works are you gaining?
The answer: none. "Jailbreaking" your phone does not result in access to any material whatsoever that is within the scope of copyright, as defined in 17 USC 102.
In other words: the DMCA anti-circumvention provisions grant rights to people who have no copyright interests whatsoever.
This is a major flaw in the law as it stands. You said, and I agree, that the intent is to allow copyright holders to protect themselves against infringement. But it is overreaching as it stands, and this bill would simply rectify the situation.
As far as the 106 rights go, all I've heard are conclusory statements that DRM does absolutely nothing to prevent piracy.
That's not really the issue. Anti-circumvention measures (not merely DRM) may help prevent piracy - but, of course, shutting down public libraries would also help prevent piracy. The plain fact is that anti-circumvention provisions do not serve the public welfare. Anti-circumvention measures may help prevent activity that is infringing, but they also bypass all of the limitations on copyright rights that are Constitutionally necessary.
Plus, as I said, anti-circumvention measures are unlawful even regarding material that is not covered by copyright law.
Also, replying to another comment:
making it legal to traffic in technologies that can be used to circumvent access controls would make it easier to infringe.
This is aboslutely false. How easy it is to infringe depends entirely upon how easy it is to actually circumvent the particular access controls. Whether that is legal or illegal makes little difference. I mean, for fuck's sake, people print DeCSS on T-shirts. It can't get more easy than that.
What it would do is make it easier to "traffic in technologies" that don't infringe. But nothing in this bill would make it any more difficult for copyright holders to enforce their rights. It would simply legalize activities that never infringed on their rights in the first place. If someone makes something that can bypass copy protection for the purposes of infringement, they can still get sued, and they can still face criminal charges. And it is not any harder for either copyright holder or the govenrnment to bring these charges against them.
While I have some minor doubts about the success of this platform in the long-term (mostly for reasons having nothing to do with the platform itself), it's excellent to see more of these business models actually making it to the marketplace.
Every single attempt is a benefit to artists, even if (God forbid) the attempt is unsuccessful. The worst that will happen is that it will lead to attempts that succeed. The best that will happen is that it will succeed, artists will have a platform that actually benefits them directly, and the public will benefit from artists' successes without having to sacrifice any of their freedoms.
Whether this particular platform succeeds or fails, it's a win-win proposition for everyone, artists and the public alike.
Whatever claims are held are the government's. This is criminal law.
Actually, I was wrong. It is also civil law. 17 USC 1203 allows civil actions against people who violate 1201.
Still, that does not mean that any of the rights granted in 106 were violated. These are the only things that are considered an infringement of copyright, as 501 makes clear. (In fact, 1203 doesn't talk about copyright holders, but "any person injured by a violation of section 1201.")
Considering 1201(c) ("Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title"), I think it's fair to say that Congress did not intend to grant copyright holders any more rights that they already had. They were never seeking to add another right to 106.
It's pretty clear that the Congressional intent was to prohibit circumvention specifically for the purpose of infringement. Making this intent clear, by explicitly stating it in the statutes, would not in any way diminish the rights granted in 106, and would simply clarify Congress' intent in enacting the statutes in the first place.
There is no sane reason to be against this bill at all.
I thought cases like this went out the window in the late 90's, when the Internet happened, and everyone on the planet realized that curtailing offensive speech was a waste of time.
Still, it could get a lot worse. Look at Mike Diana. As part of his probationary sentence, he was ordered to stop drawing altogether - and to submit to random searches and seizures of his drawings and writings throughout his probation.
Hopefully whatever this guy faces won't be nearly so totalitarian.
Re: Re: Re: Re: Re: Even Mike can't help misreading the Constitution
For example an author writes a book. The book is stolen and a copy is sold to a publisher. The copy is not stolen property and subsequent copies would also not be stolen property. So the author's only recourse would be against the original thief.
It's important to note that, if this book weren't covered by copyright for whatever reason, that doesn't mean there aren't other ways to go after the thief and publisher. Trade secrets and privacy rights are examples.
Had copyright never existed, it's a pretty sure bet that the scenario you describe would have been covered by some other set of laws. (Since copyright is essentially a financial right, I'd guess it would be subsumed under trade secrets laws.) So, copyright laws aren't necessary to protect this particular right.
Which makes it all the more doubtful that this particular right is what the Founders were considering.
Wow. So it's reasonable to think that the only reason rape is not OK is because it goes against the victim's will? That strikes me as very controversial. What about the fact that it causes harm to the victim? What about the interests of society?
We're off topic here, but I'll bite.
If an act "causes harm to the victim," but is genuinely consensual, then it's not unreasonable to think it's OK. Or, at the very least, not outright immoral. Obviously, I don't know (or care about) Mike's stance on this issue, but as far as I'm concerned, consensual acts between adults are nobody's business but theirs.
As far as the "interests to society" - again, if the acts are consensual, then what business is it of society's? How are the "interests to society" harmed by consensual acts between adults?
In fact, those who tout the "interests to society" line tend to be those whose not-so-subtle goal is to outlaw pornography. People like the religious right, or mid-80's anti-porn feminists. I'm a fan of neither group, to put it mildly.
But, getting back on track, this doesn't apply to copyright infringement. You have said that it is wrong even if it does not do any harm to the copyright holder, and even if society's interests are harmed in enforcing those rights. You are concerned solely with persecuting infringers, regardless of whether that helps society or not, regardless of whether that helps creative artists or not. So, obviously, you don't care about those things.
In fact, between you and Mike, it is Mike who is much more concerned about "harm to the victim" - since he, and not you, is the one who examines practical means to minimize the harm from infringement (or even to turn it into an benefit). It is he, and not you, who is concerned with "the interests of society" - since he has made it abundantly clear that copyright laws are supposed to serve the public first and foremost. (Something you continuously deny.)
Face it, Mike is far more moral than you are when it comes to copyright. I believe you already know this. It's why you lash out at him so much.
It's one thing to disagree with me, but you needn't call me names like this.
Those are the exact names that you call Mike all the time. I think you've even called me that once or twice, long ago.
I guess I should try to avoid sinking to your level. It requires an immense amount of restraint, and sometimes I slip up.
Re: Re: Even Mike can't help misreading the Constitution
I see your various arguments regarding copyright being a 'natural right', and raise you Karl's very well put refutation of them:
You have to understand: Crosbie believes that copyright was intended to protect unpublished writings only. In his eyes, the notion that copyright was supposed to be a post-publication monopoly is an abomination, a twisting of the intent of "copyright clause."
He is, in other words, a copyright abolitionist.
It is indeed ironic that his "natural rights" argument is echoed by copyright maximalists. But they are both wrong.
All the major labels had roughly the same "standard" contract. That included assigning all the rights to the recordings, and it was not a point that the labels were willing to negotiate. There are very few cases where artists retained their copyrights, but these are all well-known, gold or platinum artists who were able to negotiate this in their second contract with the labels. You can very nearly count them on one hand.
And unless you signed with a major, you could not get on commercial radio, could not play most of the larger venues, and could not get your records into national record stores. The major labels acted (and act) collectively, essentially forming a total monopoly on music.
So, no, you weren't "forced." You were only "required" to assign the rights if you hoped to actually make a living at your art.
Many of those same artists use the work and it's wide distribution and promotion to be able to build a fan base and charge for access to their live shows.
Yes, they did, but this revenue stream is unaffected by piracy (it's actually increased in the past ten years). In fact, you don't need copyright at all to do this.
If they are forced back to working at the 7-11 after that, they likely are not the artist that the public wants to hear from, read, or buy art from, plain and simple.
We're talking artists that sold units in the tens of thousands, sometimes the hundreds of thousands. That simply isn't enough to make money under the old major label system.
There is no unlimited source of revenue to pay people who feel they are an artist, the system is built so that those who are appreciated by the public can make a living being an artist.
You're right, there is not an unlimited source of money. But under the old label system, the vast majority of that money did not go to the creative artist at all.
Most of the people under that system could not make a sustainable living, whether they were appreciated by the public or not. Most songwriters could not write songs unless they spent their time performing for the public; most book writers who are not good public speakers were forced to do speaking tours or lectures. The ones who didn't have to do this were a small, small, small minority of songwriters or authors. That was (and is) true even among the songwriters or authors on major labels or who were signed with big publishing houses.
Again, if you look at the top grossing artists on major labels, nearly all of them made a tiny percentage of their income from royalties. They all make their money from other things - live touring, product endorsements, etc.
The notion that copyright helps artists make money, is almost entirely a myth. It is a myth that naive artists believe, in the same way that they believe copyright is some sort of "natural right" earned by their labor, but it is a myth nonetheless. It is like the myth of the "rock star lifestyle:" something that is deliberately promulgated by people who earn their money off of artists, in order to keep a fresh supply of labor to stock the plantation.
Would you, as Mike Masnick appears to want to, deny the artists the rights to own the material they create?
Neither myself nor Mike are copyright abolitionists. Mike wants copyright to fundamentally benefit the general public - which, not coincidentally, is also copyright's Constitutional purpose.
I personally want to see copyright continue. I simply recognize that the current form is an abomination. It hurts artists more than it helps them, and it does tremendous damage to the public good.
Specifically, I would start by re-legalizing all forms of non-commercial copying and distribution. I would also like to see copyright transfers abolished by law: copyright "ownership" should remain with the artists, and only licenses should be allowed. There are a few other things I'd like to see, but listing them would make this a novel-length reply.