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I get to shoot them all down in one place.
Wow, a great week at Techdirt. So much misinformation and misrepresentation, it's almost hard to know where to start.
Batmobile: Pretty simple, really - there is no copyright on "cars" or even "modified ford car show one offs", but rather specifically for the Batmobile itself. You know, black, fins, fire thing in the back, bubble roof... it's a pretty specific thing and yes, a character in it's own right (perhaps no different than KITT the Knight Rider car). You say Batmobile or KITT, and everyone (of a certain age, I guess) knows what you are talking about. It's actually really reasonable for the car to be considered a character. Heck, Herbie the love bug is a character too, that wouldn't give them rights over VWs, just perhaps that specific character / representation.
Creation: Nobody is stopping creation - they are addressing duplication. You have to be fairly slanted to not understand the difference.
Hollywood Accounting: Anyone signing up for NET anything is an idiot, plain and simple. Interestingly thought, I don't see too much complaining about companies like Google who offshore their profits by using things like "logo rights" or whatever to create expenses to move money from profitable higher tax areas to lower tax / no tac havens. Perhaps some "dirt" about "tech" would be a nice change. Double Irish, anyone?
Wired / Ios: The issue is that Wired is taking away something from people to stick it in a preferential walled garden. The Techdirt CB seems to be more about seeing stories before they are published. Wired took an approach that starts equal and excludes people, Techdirt's thing starts equal and offers a plus without taking away from the initial equal setting. Think of it like an ISP offering "our highest speed internet" by intentionally lowering the speeds on their existing customers. They didn't improve things, they made it worse overall.
Pretty bad attempt at the brush off, trying to miss the point but not ever quite making it work out!
Seriously, the police are X times less likely to be convicted of a crime - yet much more likely to get arrested, suspended, or investigated for crimes. Nobody is claiming they are perfect, they are human, However, considering the temptations of power, the contacts that they make, and so on... it's pretty remarkable.
The numbers presented by themselves without comparison look like "holy sh-t!"m but then when you realize that the population is something like 6 times as likely to commit a crime, you realize the police aren't doing so bad.
The general population might have more to complain about if they themselves weren't quite so often committing crimes.
I know it's Techdirt's line and all to get upset at authorities and point out bad they are, but geez, could you at least try looking at the gap in the numbers?
1 in 40 arrested, 1 in 200 convicted. That means... 0.5% of the police have been convicted of a crime in 5 years. The normal crime rates in the UK suggest that more than 3% of the population commit crimes "of note" (ie, not jaywalking). The police force is, even at it's worst, 6 times better than the population at hand.
It should be noted that the IBTimes also uses a very slippery set of conditions to reach their numbers. Particularly, they take any internal suspension during investigation as a form of guilty, which it most certainly is not. "Out of these, 500 were convicted of offences, or suspended from duty on suspicion of committing offences."
Like I said, I know you want to all be upset at authorities, but these numbers just don't add up to anything to be outraged about. Police are remarkably human as well, and they are not perfect. A very small percentage over a long period of time committed crimes. It happens.
I agree with you fully. Comment sections are generally packed with all the things a news organization doesn't want particularly spammers and racist / sexist people looking to get a rise out of people.
Most organizations aren't willing to hire a half a dozen people to act as moderators full time. A comment section that is updated only once a day is almost meaningless (no real ability to have a discussion) so if you want to do it right, then you have to do it near about real time. Delaying a comment even 24 hours generally ends the discussion as people move on - and reflects one of the more amusing ways that Techdirt deals with people they don't desire to comment on their site.
I would also say that using Facebook or Twitter is a much better idea for many of them. It's classic Web 3.0 mentality, shift the responsibility to someone else and enjoy the majority of the benefits. Facebook comment sections on sites are a great idea, it generally requires people to use their real names and associate themselves with their comments, this makes the comments mostly self policing.
In the end, the idea of "starting a discussion" may not appeal to everyone. Not every site and every page has to be interactive. Not everything has to become a grand social experiment in shared thinking, it can just be news and information.
"Thus, the base argument that the law should revert to distinguishing service providers from forums under editorial control, or in the older language, distinguish “distributor” liability from “publisher” liability, is an argument best addressed to the Congress."
The courts are generally unwilling to leave defendants and plaintiffs swinging in the breeze waiting for congress to explain itself. When called upon, the courts must decide what the letter of the law (and perhaps the intent of the law) spells out in real world terms.
I think honestly that the courts are onto something here. For me, Ripoff Report is able to hide from liability as a service provider, yet they appear to offer somewhat more of a service, to the point of perhaps encouraging people to post less than truthful reviews with the intent to cause harm to businesses and their owners. There is some indication (however vague) that some of the content on the site may not be user sourced, or may be knowingly sources from competitors and others with an axe to grind.
There is a point, somewhere, that Ripoff Report (and sites like them) stop being just a service, and become an active participant in what is a virtual lynch mob. Legally I don't know if all that adds up to enough, but clearly there is a need to better define the spot where service provider ends. If the courts do it, potentially they will draw the line in a place that makes nobody happy.
I think the courts are being pretty narrow here in their interpretations. The original 2009 judgement is sound and pretty logical, pointing out that there is a point where the "service provider" isn't just providing a service, but becomes a defacto participant. That line isn't a clear and simple test, but rather has a whole lot of grey in which the legal system can swim.
Ripoff Report by it's nature may in fact be encouraging malicious and misleading posts, and misleading the general public as to their sources.
Goldman's neutral publisher arguments in fact seem to make the case against 230 protections. If a service cannot by it's nature be neutral, should it's slanted views be somehow more protected than the general public? It is perhaps the best argument for the difference between a true service provider (say like a phone company or ISP) versus an opinion based web forum.
I know it's not a popular opinion around here, but once again, I can see where the courts are (IMHO) wisely looking around the wall of section 230 and assuring that some of the more "engaged service providers" are held accountable for their actions beyond the levels of neutral service.
I think you miss the point. If someone wants to obtain something, they can and will. Legally, Google should make the good faith effort to restrict residence of France to using the filtered google.fr site, and make every normal effort to keep them away from other, non .FR versions of Google. It would not be perfect, but it would create a situation where the French courts would have to find Google liable for people using VPNs and proxies, which is beyond their control.
Moreover, Google France should be it's own stand alone company, and Alphabet does not fall under the French courts jurisdiction. If they want to enforce their order, they can come to the US and file suit - and good luck getting past that pesky first amendment issue.
Google is just doing it all wrong by basically capitulating and not taking clear steps to isolate France from the rest of their system.
This is a case where Google is truly missing the concept, and as a result, the French courts are (wrongly in my opinion) going to make them pay for it.
All Google needs to do is geo force all french people to google.fr. If they try to access any other Google site (including google.com) they should be sent back to google.fr.
The issue for Google is that you can access almost any of their regional sites from anywhere - and that means that yes, there are Google results available in France which are not compliant with the (stupid, but apparently legal) law.
The drug in question Daraprim has never had more than about 15k total prescriptions in the US. Assuming a 1 pill per day regime, it means about 5 million pills a year. User count before the price increase was sitting at about 8000, according to figures I could find online, or about 2 million pills.
It is also a drug that is slightly harder to make, store, and distribute as it is light and air sensitive and can quickly degrade.
It is in fact a brand name generic drug, one that is sufficiently complex to make that few seem to have an interest, especially considering the size of the marketplace.
The price increase does potentially offer up a chance for another company to come into the marketplace. However, short term that is very unlikely, it can take a year or more to get FDA approval to produce even a generic drug, especially one of this nature. Someone will likely try to move into the marketplace, but as this is a small market generic, it's likely they will still charges in the hundreds per pill to make it worth getting into the game.
While there is a lot of arm waving about this subject (and plenty of articles, the EPA press people have worked overtime since Friday), there is still one question:
Is it in fact illegal, or just immoral?
As an example, GM has been famous for their "forced shift" manuals that go from 1st to 4th gear under the exact loading conditions for the EPA test, thus improving fuel mileage and reducing some emissions as a result. The resulting difference in fuel mileage was enough to save cars like the Corvette from paying a gas guzzler tax.
Further, since the EPA test is a well know set of steps, speeds, and operations, other car companies have done similar things to meet the various standards, often by playing games with throttle position settings, fuel mix, and the like under certain types of loads. While they don't disable these things when not in test mode, the average consumer is also very unlikely to ever drive in a manner by which they would be using such engine maps.
VW's only difference in reality is that they were blatant about it, having software which actively loads a different set of engine maps and controls only during testing. Since the car pasts the test, the EPA may have to be careful how hard they push on the subject. It could easily be turned to show that their easily replicated testing encourages such behavior.
Actually, what Lessig (as a proxy for Dotcom) is trying to do is get the case tried in NZ, which really should not happen. Extradition doesn't happen only when already found guilty, it happens when charged with a serious crime (and yes, economic crimes are serious).
Lessig's defense is at least in part laughable because it makes a few basic misdirections he hopes nobody notices. As an example, he uses the civil standards for copyright infringement rather than the criminal ones. This is NOT a civil case. So that is off the list right away.
The lack of a specific US user is meaningless as well. All you need is the basics: Were the files available in the US (yes, the feds confirmed that in their case), were the files available in full only if you paid a premium membership (generally yes). Were those memberships available to US citizens (yes). Were sites owned and operated by Kim and his various companies promoting copyright violating material with hopes that people would buy membership to download them? Apparently Yes, and this is key: It shows both knowledge of the content as well as accepting paying from Mega for promoting it.
Lessig's problem here is that he is looking very narrowly at a single part of what is called the "Megaupload conspiracy" and ignoring all of the other moving parts.
Lessig and Dotcom want the case to be tried at the extradition hearing, and that should never happen. Extradition does not require proving your case beyond a reasonable doubt, only showing that the case exists, involves crimes that meet the standard of the extradition treaty (and money laundering is one of them), and that is about it. Everything else is razzle dazzle and an attempt to turn the extradition hearing into something it is not.
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Wonderful story and all, but just another part of Kim's razzle dazzle defense - the one the courts aren't falling for.
The offence that matches the treaty is money laundering. There is no requirement here that the illegal act that the money laundering is based on be an indictable offence, only that the money laundering itself is in fact an offense. If you ONLY look at the copyright violations, Kim might have a case. But the copyright violations are just a regular crime, which may not by itself be an extradition case, but the money laundering and such clearly would be.
Moreover, Kim is AGAIN trying to get the case heard in NZ. It's very likely that the courts will shut him down VERY quickly at the start of this extradition hearing, and direct him only to address why the types of charges are somehow exempt from extradition.
Kim's a smart guy, but the NZ appear to be getting tired of his snarky bullcrap.
I think you need to go back and re-read the judgement. The courts are okay with bots only because (a) they understand that the volume is huge, and they seem to imply the point of (b) the ratios of infringement to fair use.
The perjury clause is hugely important, but the standard is very high. There are many reasons. The most important is that DMCA as a concept is a way to allow for "oops, I infringed your work, sorry" without a lawsuit and without costs or punishment. The other side of that is "oops, I squished your fair use, sorry" that should (and is) given about equal weight. There is a balance here that is rarely addressed.
The perjury clause is really there for people who intentionally set out to cause harm with false claims, not grey area "may or may not be" situations. Go back and review how fair use is determined, and you can see that it's an area where it's very easy to suggest "may be fair use" but almost always equally easy to say "may not be either".
Anyone who gets a notice SHOULD issue a counter notice and take action. They very much should (and I have, thanks!). The issue of course is most people try so hard to be anonymous that they are also unreachable, unable to answer basic questions and to claim their fair use rights.
The true desire isn't to stand up for their rights, that is part of the problem. Instead of proudly signing their names to their work and standing up for themselves, for what is "right", they hide like petty criminals or schoolboys stealing trading cards from the local bodega.
Hosting companies and "services" have no choice. If they want to reject claims, they better feel they are 100% in the right (and have the bankroll to fight it). Most of them won't do it, because they really don't want to waste money fighting for the rights of people who just don't give enough of a damn to fight themselves.
Let me give you a perfect example of why your logic doesn't work out.
The law isn't something that is only decided in a court of law. It's something we live with every day. If someone invades your private property, you can have them removed without first getting a court order. In the US, it's not unusual to pull out a firearm and take a shot - all legal, of course. No judge or jury required to APPLY property rights in those cases, just a law that says what you may do. The courts may disagree with you later, but it's a huge grey area. Don't believe me? Go randomly busting into someone's house in Texas and see what you get.
"As you say, if there is a huge firehose of unauthorized use on one side, then laws should be changed so that use is authorized; because that's the message people are giving, not from what they say, but from what they do. "
Clearly that isn't a good way to operate. It borders on lawlessness. Can you imagine if everyone just decided that red lights were meaningless? That paying for the subway or dinner was just an annoyance? By your logic, if enough people do it, the laws should be changed to give us free food and make everyone stop on green lights. How silly would that be?
"The alternative is turning this into a police state where everything you do is filtered and monitored so that you can't breach the law. And remember that we are telling off China for doing precisely that. "
Actually, the alternative is a thing called self control and personal responsibility. It's the thing that keeps us waiting at the red light, driving on the right side or the road, paying for dinner, paying for the subway and not randomly bursting into other people's houses. Sadly, that concept is quickly slipping in the US, to the point where some (including an article in the WSJ) suggests that lawlessness is upon us.
Without respect for each other (yes, two way street), none of it works. Graffiti on building's walls and people pissing on your back step are just signs that respect for others has all but disappeared.
"tl;dr: if the infringement is so large that courts can't keep up with it, then laws should be changed so that such infringement stops being an infringement."
I hope for your sake that all of your neighbors don't decide that your house or whatever isn't perfect for shooting practice. After all, if they are all doing it, they should just change the laws so it stops being a crime!
The concept of accepting automated take downs I think is a very valid concept, in many instances. It seems that the courts understand the issues of the sheer volume of potential violations, and that there is no real way to keep up with the tide and not have to resort to some sort of automated system.
Moreover, they seem to be agreeing with the basic concept that the burden on the right holder (both in time and legal consequence) should be larger than that of the potential infringer. If it takes a few seconds to infringe, it shouldn't take much more than that for the rights holder to assert their rights. Considering each individual use against the full fair use standard would be time consuming, and would likely still lead to major disagreements as the standards of fair use are often on judgement rather than legal absolutes. Yes, there are a few very clear cases, but put on a website that runs advertising and gains income from the works in question generally muddies the waters for almost everything except straight news and reviews.
Overall for me it's a judgement that is based on the reality of a huge firehose of unauthorized use on one side, and a huge firehose of DMCA / takedown notices on the other trying to keep up. Much like Mutually Assured Destruction, things won't change until both sides slow down... and that is unlikely to happen.
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This story seems mostly to be an example of the simple concept that much of the mainstream media out there is respectful enough to actually ask permission to use an image that they may not have the rights to otherwise. Their questions were not to retweet it, but to actually run it on another medium altogether.
It's not a question of "permission society", it's about respect, something that is often sorely lacking in the current grab all you can and run society.
This is the sort of story where I realize that I have a fundamental difference of opinion from the Techdirt crew.
For me, Amazon as the retail source for the poison should have liability here. They put their name into the transaction, they collected the money for the transaction. Most importantly, without them and their reach, the transaction would likely not have occurred. To me, the search for some (any) liability for Amazon stops there. They are part of the transaction and somewhat key to it occurring at all.
Amazon cannot claim to be "just a shopping mall" then they have also acted as the bank, the cash register, and intermediary introducing buyer to seller. They are integral to the process, like it or not.
I think it's the WEB 3.0 thing, coming up with business models that shuck responsibility to others while making a profit.