If for you or I to do fill-in-the-blank would be hacking, unlawful interference with private property (I’m pretty sure I can’t legally attach a tracking device to your car without your permission), trespassing, breach of terms of service or otherwise a violation of civil contract or criminal law... then government agents don’t get to do it without a warrant, or some other specific, affirmative legal basis.
It’s one thing if I’m on trial for a crime and the prosecution wants to access and enter into evidence my Amazon purchase history for the past three years, arguing that it is relevant for some specified reason. (My attorneys will object if it’s worth doing so, but that’s defense, which is results-oriented and has nothing to do with principle.)
It’s a whole different thing if I’m not accused of anything, but someone from city hall wants to see everything I’ve purchased from Amazon for the past three years, for “no specific reason.”
Instead of speech, let’s try an analogy with writing. Officer Fred thinks John has committed a crime. He sees John carrying an envelope addressed to Mary, which John puts in a mailbox. Fred wonders if that envelope might contain a letter that has incriminating information about John.
Fred can ask John about it; he can ask Mary about it. He can’t (legally) demand that John let him examine the contents of the envelope, nor intercept it at the post office, nor search Mary’s house for it, without a warrant.
I’m pretty sure “expectation of privacy” has never been an argument against warrants or subpoenas. (That would require something like attorney/doctor/*-client privilege.) This is about what government agents can do without having to give any good reason or obtain any judicial approval.
The tricky part is that, for example, US Mail and the wired voice telephone system are protected by laws that oblige the carriers and their agents not to compromise their users’ privacy. As far as I know, there is no similar clear law (in the US) that requires ISPs, social networks and other kinds of communications services developed in the last half-century to maintain similar standards of trust. Without that, they have a troubling incentive to provide (quietly) whatever data a putative authority requests.
The government is (somewhat) bound by “reasonable expectation of privacy”; but the government is a major actor in determining when there is a reasonable expectation of privacy.
If every e-mail we send and receive, every search string we submit, every web site we visit is accessible to the government at whim, there can be no expectation of privacy. If intercepting this sort of information is considered the equivalent of wiretapping and requires a warrant, an expectation of privacy does exist.
The “expectation of privacy” standard makes sense as a way to evaluate specific instances in a context where existing practice has already established what is usual. It doesn’t work for “new” technologies and scenarios: it merely begs the question. Some other standard, or law, must define these boundaries.
Thank you for posting this. It was a brave thing to do in this forum. Being Techdirt, we went straight for the petty details... but I’m pretty sure you didn’t really want career advice, parallel song structure analysis or a critique of your team’s legal strategy.
I think that you were honest, not adjusting your text to say only what this particular audience would most easily accept; and that your purpose in writing was to get a crowd of IP-minimalists—with whom you generally sympathize—to understand that emotions can run pretty high when it’s your own work that been unceremoniously detached from you and appropriated by someone else. Artists don’t, and shouldn’t, get everything they want; but it’s not conducive to anything positive to dismiss their feelings without at least first understanding them: as if there were no reason on Earth they should care about the creations that will always, in their eyes, carry a little part of themselves along with them.
Against odds, I hope this somehow works out so that you and Zubak/Graus/Kachut can wind up in a state of mutual respect. I know this post is getting old now, but I still wanted to write to say that just because the natural comment fodder went in one direction, it doesn’t mean that nobody got your point or appreciated your honesty and your time and effort to express this.
Erin’s song “Slung-lo” is really much better. (It’s the difference between character and plastic. “Touch the Sun” sounds like somebody said, “Let’s write a song just like that song, only not that song.”)
All I'm asserting is that artists should have some recourse when the copying of their work crosses from inspiration to wholesale misappropriation
That troubles me, too. The idea that creative work can be “monetized” only by finding some ancillary scarcity to exploit (because the thing that’s truly of value — the art — is non-zero-sum and hence cannot command a price in an unregulated market) seems like it places the focus on the wrong thing: advertising deals or merchandise tie-ins or whatever. Ugh.
Yet, part of what makes many of us question the whole system is precisely the shades of grey. Even the potential “infringer” might not know whether it was inspiration or misappropriation until the lawyers duke it out and the judge or jury spins the wheel of fortune. It sounds to me like the writers of “Touch the Sun” may well have copied Erin’s idea, but not her song. If they did, they still might not have been consciously aware of it. If they were, it’s easy enough to see why they avoided mentioning that.
As others in this thread pointed out, the potential penalties associated with “infringement” turn the normal social incentives to give credit where credit is due upside down. This and many other unintended consequences suggest that the whole concept of “intellectual property” might well be doing more harm than good. Were the distinction between inspiration and plagiarism a bright line, maybe laws could be crafted to protect artists, and to make it straightforward for them (and those who invest in their work) to earn money in the marketplace without doing much collateral damage. In the real world, IP laws seem to be working less and less well for everybody, excepting IP lawyers.
In fact, if someone challenged a group of songwriters: Listen to this song, “Slung-lo”; then try to reproduce as closely as possible the same feel, sensibility and appeal without actually duplicating any copyrightable elements... I’d say “Touch the Sun” would make an excellent entry in that contest.
Proving infringement is going to be tough... I hope those lawyers are working on contingency.
I think you misunderstand the purpose of whac-a-mole. Like laws against recreational drugs or prostitution, no one in touch with reality imagines the censured activities will stop. The point is to keep the activity marginalized; to ensure that it can’t be openly discussed, that everyone who engages in it must be fearful and suspicious of everyone else, and that those who don’t engage in it can be made fearful and suspicious of those who do. It keeps it abnormal (at least from the perspective of the larger society).
The legacy content industries figure the only way they can compete with “free” is if their offerings have a unique cloak of legitimacy, which only works if a feeling of illicitness is attached to the others that cannot be shaken. The goal must be to maintain that stigma—they understand that law without enforcement is just a suggestion—no one could expect to succeed in actually stopping unauthorized distribution of copyrighted works, but it is possible to keep a significant part of the population scared of it.
Of course, with all such prohibitions, lots of people’s lives are seriously damaged, but no one cares about that... it’s just collateral damage.
They really are trying to make my head explode, arenâ€™t they?
Once again: S&P declared that US debt is no longer a safe investment; yet investors are piling into US debt, not out of it, driving the 10-year interest rate below 2.4%. This amounts to a massive market rejection of S&Pâ€™s concerns.
I share the sentiment of the article and the comments thus far, but Iâ€™d like to point out that there is one limited sense in which this may not be quite the same as â€śhow everything on the internet works.â€ť
I can repeat in public anything I can read in a private forum or in e-mail... but I canâ€™t (easily and with publicly available information) prove that I didnâ€™t change it or make it up. I havenâ€™t seen Google+ yet, but if this works like Facebookâ€™s â€śshareâ€ť feature, the shared post documents the source of the original post... itâ€™s no longer deniable, unless youâ€™re prepared to claim that your account has been hacked.
Iâ€™m not sure thatâ€™s important, but it is a difference.
It would also be unfortunate if Google+ has implemented this feature so that a person sharing a friendâ€™s post can easily not realize that the originator meant for it to be restricted. People tend to forget about things and follow the default most of the time; if posting to a selected â€ścircleâ€ť doesnâ€™t automatically check the â€śdonâ€™t allow sharingâ€ť flag so that the user must think to un-check it, hilarity will ensue.
Domain name seizure â€” and restoration â€” of course has nothing to do with anything. I suspect the FBI (unlike DHS/ICE, who perhaps really donâ€™t get it) always knew that, but mounted the seizure simultaneously with unsealing the indictments for maximum shock value.
Though Techdirt readers should know what a domain seizure does and does not accomplish, many online poker players are not generally Internet-savvy; neither are many news sources: the commonly reported story said that the FBI had â€śshut downâ€ť these online poker sites, when of course the client software (which connects via numeric IP address and doesnâ€™t require DNS) was unaffected. New domains were up in days.
The sites themselves, not the FBI, chose to block real-money play by Americans. Since the DOJ placed restraining orders against various accounts used for payment processing, itâ€™s not hard to guess whatâ€™s holding up cashouts.
PokerStars has reached an agreement with the US Department of Justice that will allow players to cash out as soon as a suitable processor is found. This publically available agreement includes assurances from the DOJ that player cashouts can be processed safely. Cashouts for US residents are expected to be available within several weeks.
The Cash Out option in the PokerStars Cashier will temporarily be unavailable, to allow us to prepare the technical solutions and formulate the plan and processes required to allow you to cash out your balance. We will notify all US players as soon as this option is available again.
What I have to wonder is whether the US government will be watching the payouts... Prosecuting individuals for playing poker online would be a can of worms the DOJ probably wouldnâ€™t want to open, but the IRS might be interested in names and account numbers of citizens who seem to have a lot of money coming back.
My immediate reaction was that if someone insisted that I answer, yes or no, whether I have a photocopier in my house, Iâ€™d be puzzled as to how to reply. I have a printer/scanner which can be (and has been) used to make photocopies. I donâ€™t have a dedicated photocopying machine. If I were sworn to tell the truth, yet not allowed to explain that simple ambiguity, Iâ€™d be frustrated and angry... Iâ€™d feel like I was being set up.
Another (IMHO more serious) problem with ShareAlike
One of the more bizarre results of the Creative Commons licenses is that there is no (legal) way to make a derivative work that combines CC-BY-SA and CC-BY-NC-SA works without obtaining further permissions.
Open-source programmers face the same sort of problem when the GPL comes into conflict with some other royalty-free but incompatible license, and both bits of code are desperately needed to make an application work as users would expect.
Copyleft doesn’t just stop the creator of a derivative work from choosing his or her own licensing strategy... it also creates a “remix hell” that makes “free” works mutually incompatible, even though most creators releasing their works under free licenses intend no such thing.