Intellectual Property vs. The People's Rights

Kimball,

As optimistic about this point as I'd like to be, I have a bad feeling about this.

I'd really like to see the law laid down here. And of course, I Am Not A Lawyer (tm), but isn't there already a precedent that would exclude the IP holders?

+=o RoboNerd o=+

 

Well, so how DO bounty hunters work around it?

I've heard somewhere that private industry DOES generally have more leeway in things like detaining potential shoplifters or strip searching people with cause. They have gotten by with doing things cops definitely are not supposed to do, and the courts view it as a civil matter - you think the department store shouldn't have detained you for alleged shoplifting? Don't go to the DA - just sue the store. They don't treat it as a civil rights issue, although they're starting to, strictly because so much racial profiling has turned up in store security, guards following black teenagers who've done nothing for hours, even though studies have shown that white teenage girls are the #1 shoplifting group at malls, followed by middle-aged white women.

This is all from memory, and may be incorrect. I remember reading it and thinking that's not right - a civil right is a civil right, and if companies can violate them, than so could, say, another govt. And I know that's not supposed to happen.

 

I'd really like to see the law laid down here. And of course, I Am Not A Lawyer (tm), but isn't there already a precedent that would exclude the IP holders?

Which precedent are you referring to here? If it is the DMCA, remember that it still has not faced a full test of its constitutionality. Nor have many of the other recent so-called "Intellectual Property" laws. The Sonny Bono Copyright Extension Act is still waiting for its time in court (enacted in 1998, Lawrence Lessig and others are suing to have it declared unconstitutional).

I've heard somewhere that private industry DOES generally have more leeway in things like detaining potential shoplifters or strip searching people with cause. They have gotten by with doing things cops definitely are not supposed to do, and the courts view it as a civil matter

That is because they also have the right to be secure in their land and property. If you are on their property (in the store) then they are allowed a little more leeway in defending their property. However, if they later suspect you and you have left their property (as opposed to them pursuing you off), then they don't have the right to do anything and must go through the legal authorities.

As far as bounty hunters go, I haven't been able to find any specific resources on how far they are able to go, but I have found articles about several bills meant to hold them to the same standard (and liability) as law enforcement officers, especially in the case of civil rights.

Kimball Kinnison

 

Sorry to double post, but I thought everyone would be interested in this.

Evidently, the RIAA's website was hit by a massive DoS attack over the weekend. According to the ZDNet article, the RIAA wasn't too happy about it.

"Don't they have something better to do during the summer than hack our site?" asked the RIAA representative, who asked not to be identified. "Perhaps it at least took 10 minutes away from stealing music."

I have to say that it is interesting to see what their response is to this. Can anyone say "Pot? This is kettle. YOU'RE BLACK!!!"?

Kimball Kinnison

 

If you are on their property (in the store) then they are allowed a little more leeway in defending their property.

Ah. Trying to balance the competing rights of citizens - one to defend itself as a legal entity, one to have privacy as an individual.

You know, the spyware companies are using to see if we have anything of theirs on our computers illegally.... didn't that software develop from hacker stuff? Or did private companies come up with it all by themselves? Or did the military come up with it, hackers stole it, and now the companies are stealing it? The whole thing strikes me as ironic, either way - the companies need to hack into the systems of innocent customers to protect themselves from hackers. Isn't that a bit like shooting customers on sight to prevent them from shoplifting?

 

While I strongly agree that the fourth amendment comes down to ANYONE violating an individual's rights, not just government, it's going to have to go to the supreme court.

The bill will die in the senate, and then the RIAA will keep pushing until they get it tacked onto another bill, an important one that many politicians want passed for their election campaigns. Or they'll wait until right before Congress goes into recess and try to ram it through quickly.

This will end up in front of the court, and the court will say this.

Scalia, Renhquist, and Thomas will be for the bill, holding that the actual words 'no corporation shall' are missing from the fourth amendment text, and therefore do not exist. This would be consistent with their votes to date regarding the unwritten right to privacy, and strict interpretation of the constitution in general. They will justify their decision as coming down on the side of business over government, even though it represents an authoritarian decision that allows the corporations to act like an arm of law enforcement.

Stevens, Breyer, Ginsburg, Souter will definitely be against, citing fourth amendment violations in a broad interpretation of the equal protection clause.

Which leaves Kennedy and O'Connor as swing votes. While liberal on many issues, both of them have, at times, voted very conservatively, especially on social matters, so it will be interesting to see.

But to me, it's just plain old common sense-there is no need for corporations to have this power, whatever the reason. If you want to solve the problem, either break up the monopoly, sue the websites (I don't like this option), or, check this one out.....have the websites charge their members a monthly fees and pay ROYALTIES to these tax-evading, whining, over-profiteering stuffed shirts who worry themselves to death about making $1.87 billion dollars a year instead of %1.90.

Fools.

Peace,

V-03

 

Et Tu, HP?

C|Net's news.com has this article about Hewlett-Packard threatening to prosecute a group of researchers who have found a security flaw in Tru64. With what law? Why... (trumpets please) the DMCA of course. Obviously this is because HP wants to set a precendent -- uncover and publish security holes, and we'll come after you. You know, that makes much more sense than fixing the hole.

You know, there are enough companies now (ab)using the DMCA to quash legitimate academics and technology experts that we need to start keeping a list of companies to not use until they repent and learn the error of their ways --

Blizzard Software, makers of WarCraft III. They are suing a Battle.Net clone program (bnetd)because they figured out the packet structure that Blizzard uses. Since Battle.Net is always working perfectly *cough cough*, they have every right to demand that nobody can use their own server. Sure.

Hewlett-Packard, for the shennanigans just described. That's a shame, too, because I really like their printing and scanning products. In fact, I was about to buy a photo printer, but for the time being I am going to put that purchase on hold.

Recording Industry Association of America (RIAA), who are by far the most well-known (ab)users of the DMCA.

Motion Picture Association of America (MPAA), another fun bunch of people. They think they should be able to dictate whether or not you can time-shift your movie watching.

Does anyone else want to add to the nominations list?

+=o RoboNerd o=+

 

Robo, re: BnetD - I believe Blizzard's major problem wasn't that there was a duplicate server running but that there was no copyright protection in place on BnetD. People could use pirated copies of Blizzard software on BnetD.

 

I believe Blizzard's major problem wasn't that there was a duplicate server running but that there was no copyright protection in place on BnetD. People could use pirated copies of Blizzard software on BnetD.

Bnetd offered to work with Blizzard to include copy protection and Blizzard refused. However, that is a non-issue to their claim of a DMCA violation.

Quite simply, Bnetd is being sued not because they reverse engineered Blizzard's server's features, but because they DIDN'T reverse engineer the key-checking capabilities (which would have been a DMCA violation in and of itself). It is not that they included code to circumvent copyright controls, it's that they DIDN'T include code to protect it.

Honestly, they shouldn't have to. If Blizzard decides to use a copyright-control scheme that can be circumvented by not implementing it, and they refuse to help those who wish to implement it, the blame lies solely with them, not with Bnetd.

Kimball Kinnison

 

Robo, re: BnetD - I believe Blizzard's major problem wasn't that there was a duplicate server running but that there was no copyright protection in place on BnetD. People could use pirated copies of Blizzard software on BnetD

I don't know if it's any different now, but at one time I've had 4 people on Battlenet running Starcraft at the same time with the same CD key.

 

See, this crap is no different from frivolous lawsuits like the guy suing fast food chains for making him fat. Companies who clog the legal system this way deserve just as much scorn as any individual who does the same thing.

 

Well said, TreeCave.

 

C'mon, people.... just stop using the product... be it music, games, etc.

Boycott the hell out of it.


What, you think legislation from politicians, of all people, is going to quash the appetites of the power-hungry?

 

C'mon, people.... just stop listening to the music entirely.

Boycott the hell out of it.

SnowDog, as I pointed out in our earlier discussion on this topic, music is only one portion of the affected markets. A major one is the software industry, where I work.

Look at the example of HP who, when someone reported a bug in their Tru64 OS, ignored the report for quite a long time (some sources say up to a year). Finally, the person who reported it issued an exploit to prove that the bug really did exist. HP's response? "Yes, we'll fix it right away. Here's your patch." Nope. Instead, they threatened with the DMCA. (They have since retracted their threat, thanks to some work by Bruce Perens.)

It is actions like these that have made Alan Cox (one of the top Linux kernel maintainers) say that he will not enter the US for fear of the DMCA. As it is, he has refused to document some of his changes to the kernel because of fear of prosecution.

As I said before, this is a legislative problem and cannot be solved through market forces, such as boycotts. I already boycott quite a few commercial software products, preferring many Open Source solutions instead. However, that does not make me immune from threats of prosecution if I find a bug in someone else's software any more than Alan Cox is immune (and he uses almost exclusively open source products).

Kimball Kinnison

 

What, you think legislation from politicians, of all people, is going to quash the appetites of the power-hungry?

No, and I agree boycotting could have some effect. I've already virtually stopped buying music and CD's, though partly because I'm buying groceries on credit card right now - my poverty being a whole other issue. My problem is, I own an HP inkjet and scanner because they're the best available for Mac. I'd like to boycott them, but all I can do at this point is not buy any more from them.

But you know, who's more likely to get hurt? Little people like me who might have questionable files on the hard drive, but have so little money I'm not worth suing?

No, Kimball has a good point here. This will stifle creative programmers, music artists, etc. The musicians may have trouble getting their music disseminated, the programmers will just give up...

In the end it hurts everybody, even these short-sighted companies suing everybody they can think of.

You know, a few years ago - and even recently - people joked about Lucasfilm suing too much. Well, Lucasfilm didn't sue very many people, really. Mostly, Lucasfilm just has a very pro-active legal department that harrasses people into "cease and desist" before there's any need to sue - which I think is a great use of all the excess lawyers around there: get your rights protected without going into court. And Lucasfilm could certainly go around making huge trouble for every personal web site with fanfiction (even if you stick your story on a free Tripod website, that means Tripod is making money off unlicensed SW stories). Lucas is starting to look like a good example on the whole intellectual property rights issue.

But we'll see how they react to DVD piracy.

And I'm still incensed that no one will transfer my VHS's to DVD, when the copyright law SAYS I can make copies for personal use. I guess I have to make the copies myself with a $900 machine I don't have, huh?

Ridiculous. And that's not Lucasfilm's fault, even - that is the fault of people letting the threat of lawsuits make their decisions for them, instead of their own judgment. In the US, conservatives gripe that no one uses good judgment or takes personal responsibility, and liberals gripe that rights aren't protected and laws aren't enforced by the government. Now both complaints have been neatly sidestepped by the ultimate phantom menace - a lawsuit that only exists in hypothesis, yet governs how you conduct yourself and your business. And people think the Force sounds silly.

 

Kimball: I noted that and changed my statement accordingly.

TreeCave: I'm a musician, and a recording artist... I will not sign with a record label. If you want my music, I have some tracks on the web for free download... or you can buy the complete CD from me, directly... for $10 + shipping. Less than standard MSRP... and I keep everything minus manufacturing and shipping costs.

 

What, you think legislation from politicians, of all people, is going to quash the appetites of the power-hungry?

Actually, it can. What it takes is for people to take an interest in these things and then speak up to their politicians. Politicians are also power hungry (well, most of them). They recognize that they are in office at the suffrance of the people. If enough people speak out against these things, they will listen, regardless of what the big business wants.

A good example of this comes from US history. In 1840, Joseph Smith visited Pres. Van Buren to seek redress for the crimes committed against Mormon settlers in Missouri, including an extermination order issued by Gov. Lilburn Boggs (which was blatently unconstitutional). Van Buren's response was to the effect of "Your cause is just, but if I take up your cause, I will lose the vote in Missouri." (I am typing from memory, if you want I can find the full quote. As a side note, he still lost the vote in Missouri.) He was so afraid of irritating a large number of voters that he refused to help in a cause that he felt was just.

In the same way, if a large number of voters became irritated at their representatives over this matter, the politicians would follow their demands, not those of the businesses supporting them.

Kimball Kinnison

 

People taking an interest... those are the key words.

Legislation will not change the face of the marketplace. Nor will it change the hearts and minds of executives... It will only make them work harder to find other ways to take advantage of the consumer.

Consumers have to refuse to be taken advantage of. Without action in the marketplace, all the legislation in the world cannot convince record executives there isn't money to be made at the expense of artists and consumers... as long as artists and consumers continue to patronize record labels.

Same with software.

If you're that talented that you can write software that you consider intellectual property of value on its own, such that it has merit without the marketing of the software company... go start your own business.

 

People taking an interest... those are the key words.

Yes, to BOTH our suggestions. If you note, I have not said that boycotts will not work, only that they will not work BY THEMSELVES.

Legislation will not change the face of the marketplace. Nor will it change the hearts and minds of executives... It will only make them work harder to find other ways to take advantage of the consumer.

Legislation already HAS changed the face of the marketplace. Laws such as the DMCA have allowed businesses to try to silence objectors and critics, often for the flimsiest of reasons. These laws stifle the free exchange if information that is necessary to have a free market. If I cannot learn of the flaws in a piece of software, how can I accurately choose what best suits my needs?

Consumers have to refuse to be taken advantage of. Without action in the marketplace, all the legislation in the world cannot convince record executives there isn't money to be made at the expense of artists and consumers... as long as artists and consumers continue to patronize record labels. Same with software.

And without legislative action to correct the legislative mistakes of the past, the market will continue to exploit those legislative mistakes.

If you're that talented that you can write software that you consider intellectual property of value on its own, such that it has merit without the marketing of the software company... go start your own business.

FYI, that is pretty much what I AM doing. While I did not start the company I am working for, I am 1 out of 4 people in it. We are designing and building an innovative new railroad inspection system to compete with a company that hold a monopoly-like grip on track geometry measurements. I am half of the research staff. We have already seen success in winning contracts with many smaller municipalities for testing public transport systems. By the end of this year, our sytem should be fully functional.

However, even this would not exempt me from possible criminal prosecution (as I said earlier) should I find a security flaw in almost any software (including open source projects). If I find that our software doesn't react well with Windows and something we did could compromise someone else's machine (not likely, but I am only providing an example), if I say anything about it to ANYONE (other than Microsoft, who has a history of ignoring such warnings), I could be sent to jail.

No market forces in the world can change the criminal aspects of such laws. Those criminal chrages are the "club" that companies are using to silence their critics. Bad laws require repealing, which is a legislative process, not an economic one.

Kimball Kinnison

 

The problem with business law is that it is written by people who aren't in the industry, often at the behest of people who are in the industry, or have a vested interest. And the problem with getting people to take an interest if the vast majority of people barely know what "download" means. Those who know the intricacies of the industry can defeat inexpert legislators and fool inexpert consumers - and none of us catches on before it's too late. (This is assuming for the sake of argument that legislators and consumers would do the right thing if they understood in depth what was going on.)

 

FYI, that is pretty much what I AM doing. While I did not start the company I am working for, I am 1 out of 4 people in it.

So, no, actually you're not doing what I suggested. You're one of four people in it... Please clarify... are you or are you not a propietor, partner, owner or controlling shareholder (51%+)... or an employee?

However, even this would not exempt me from possible criminal prosecution (as I said earlier) should I find a security flaw in almost any software (including open source projects). If I find that our software doesn't react well with Windows and something we did could compromise someone else's machine (not likely, but I am only providing an example), if I say anything about it to ANYONE (other than Microsoft, who has a history of ignoring such warnings), I could be sent to jail.

But you being able to write your own software and have control of its design, manufacture, distribution, and marketing are an entirely separate issue... over which you would have total control if you started your own business.

No market forces in the world can change the criminal aspects of such laws. Those criminal chrages are the "club" that companies are using to silence their critics. Bad laws require repealing, which is a legislative process, not an economic one.

I'm not disagreeing with this statement. What I am saying is that, laws or no laws:

1. Corporations that do not have a sustainable competitive advantage will cease to exist in the free marketplace.

2. Corporations which cannot adapt to changes in distribution models will not survive.

3. Businesses in unprofitable enterprises, unless they are bailed out by federal interests, will be eliminated by competition in the free market.

Given these considerations, the simplest solution is for talented individuals to start their own enterprises... and for consumers to buy directly from such individuals, instead of the corporations they claim are ripping them off. This amounts to a total decentralization of resources, information and wealth... and the ultimate destruction of oligopolies and/or monopolies.

If you, as a producer, or a consumer, refuse to do so... and yet complain about the state of intellectual property... you're being apathetic to the cause, IMO.

If customers keep buying Microsoft Windows, that's their problem. If you keep writing software for Microsoft Windows... you're only contributing to the circular nature of this self-perpetuating problem.

 

Interesting you brought up Windows... I switched to Mac in 1995, because Windows 3.1 crashed constantly, Windows 95 appeared no better, and much as I loved DOS, no one was writing for it anymore. I loved Mac from the start, and never felt there was any trouble finding software for it (maybe if games are all that matter, and to some they are) because of the loads of shareware and freeware available for Mac.

I have ever since refused to pay for a Microsoft product, because they are the only ones out there that'll crash my system. They're just buggy. But again - most people barely know what "download" means, so they stick to what they see at work, school, etc. - Windows.

My favorite thing about having a Mac instead of a PC is they can't play the "must be your software/hardware/software/hardware" game between your OS and your hardware, which came from the same place. Plus, very little Mac software has serious bugs in it - my understanding is that the code for Mac OS is more stringent, somehow preventing the level of bugginess you see in Windows.

But Mac is a great example of the fact that people would rather hope Windows improves someday (which it did) than pay for quality from the get-go. Windows stuff was cheaper than Mac because they clearly didn't spend anything on making it actually work. Now that Windows is 80% as reliable as Mac, do your own price comparison - they're very close to the same.

 

Well, I use PC simply because all the computer games I want are on PC.

 

So, no, actually you're not doing what I suggested. You're one of four people in it... Please clarify... are you or are you not a propietor, partner, owner or controlling shareholder (51%+)... or an employee?

I am an employee, but the four of us together ARE doing what you suggest. Like I said, I did not start the company. However, it is due in large part to my skills that we have been able to get the system working. Together we are building a system to outperform others on the market.

Each of us has unique skills to build on. Like I said, I am half of the research team. The other researcher has a firm grasp on signals processing while I handle the physics side. Our boss has years of experience working with railroads. The other employee handles the business and marketing end. Most businesses cannot function as a one man operation when dealing with research of our type.

Note also that I said "pretty much what I AM doing", not just "what I AM doing", specifically because I don't own the company. I also operate my own one-man computer consulting firm, but am not currently accepting more clients until I have completed my education, because it was interfering with my studies.

But you being able to write your own software and have control of its design, manufacture, distribution, and marketing are an entirely separate issue... over which you would have total control if you started your own business.

So, in other words, if I want to do track geometry testing and I have a problem with the OS that my IMU driver is written for, I should just write my own OS and driver, maybe build my own IMU and GPS system while I'm at it? I am not an OS or driver specialist. My programming specialty is in networking protocols and physics simulation.

I used Windows as an example only because it is one of the platforms with which we've had that problem. Right now, we are transitioning to a Linux-based system instead.

Even Linux (which has no central controller, unlike proprietary software) can run into problems with the DMCA. Again, look at Alan Cox. Next to Linus Torvalds himself, you probably cannot find anyone who has contributed more to the Linux kernel. However, last year, he refused to document some of the changes he made because he said that describing them could violate the DMCA. It is also for that reason that he has decided to forgo any travel to the US.

Because Linux is now used by many businesses, if he were to describe the flaws that he found (and fixed), the businesses that use Linux could complain to the DoJ that he has given information that could be used to exploit a Linux box. Then, regardless of the fact that he helped write much of the code (including, I believe, the part with the bugs he fixed) he could be arrested for violating the DMCA. Again, that is the criminal aspect.

Dimitry Sklyarov (and Elcomsoft) was charged with a criminal violation of the DMCA because of a complaint filed by Adobe. After facing public pressure, Adobe retracted the complaint, but the criminal case against Elcomsoft still goes on. (Sklyarov has been freed in exchange for his testimony.)

Because of the nature of such licenses as the GPL (or other open source licenses), if I wrote code and someone else uses my code to base their product on my code, then I find a serious flaw in my own code that has potential for an exploit, that other person could file a complaint against me for revealing anti-circumvention methods and I could be arrested, just for revealing a bug in my own code.

Again, these are legislative problems caused by a bad law. Even if all the companies that currently profit from the DMCA were to go bankrupt because of consumer backlash against their actions, it would not remove the law from the books. It still requires legislative action. It is our responsibility as citizens to work towards that legislative action.

Given these considerations, the simplest solution is for talented individuals to start their own enterprises... and for consumers to buy di

 

I use PC because I can build one myself and run Linux on it.