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Old 02-21-2010, 01:08 PM   #46
Elfwreck
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Originally Posted by JSWolf View Post
But with a paper book, you sell it and it's gone. You no longer have access to it.
If I sell my house, it's not gone. I still have access to it if I kept a key. That doesn't mean I can't sell it--or even that I'm legally forbidden to keep a key. It does mean that accessing it again without permission of the new owner is illegal. (In the case of ebooks, this might translate to, "the only legal reason for re-downloading the book is to send it along to its new owner," since ebook stores won't transfer their listings.)

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Also, if you don't have the receipt how do we know you didn't say get it from the library and claim you got it from someplace that's out of business?
It's not my job to keep receipts of every purchase I make or every item I legally acquire. If someone believes I've committed a crime in getting/owning an item, it's their responsibility to prove it in court.

I own plenty of physical books I don't have receipts for; I'm not expected to prove I didn't steal those. I'm not willing to accept that I have to produce evidence that I didn't illegally acquire my ebooks.
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Old 02-22-2010, 07:25 AM   #47
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Originally Posted by Elfwreck View Post
If someone believes I've committed a crime in getting/owning an item, it's their responsibility to prove it in court.
Except when dealing with digital media, in which case there's a presumption of guilt.
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Old 02-22-2010, 07:28 AM   #48
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Except when dealing with digital media, in which case there's a presumption of guilt.
I don't think so. That's certainly not what the law says.
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Old 02-22-2010, 07:42 AM   #49
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Originally Posted by kennyc View Post
I don't think so. That's certainly not what the law says.
There's no requirement for proof of infrigement to send a take-down notice under the DMCA, and plenty of ISPs will shoot first and ask questions never.
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Old 02-22-2010, 07:51 AM   #50
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Originally Posted by Pardoz View Post
There's no requirement for proof of infrigement to send a take-down notice under the DMCA, and plenty of ISPs will shoot first and ask questions never.

That's not the law though, anyone can send a message.
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Old 02-22-2010, 08:05 AM   #51
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Sorry, kennyc, it is the law under DMCA. That's what 'notice and takedown' is. And if ACTA gets through, if three anybodies accuse you (generic you, not personal) you lose your internet access. No court, no proof, just accusations.

Don't be afraid, be angry.
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Old 02-22-2010, 08:15 AM   #52
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Quote:
Originally Posted by pholy View Post
Sorry, kennyc, it is the law under DMCA. That's what 'notice and takedown' is. And if ACTA gets through, if three anybodies accuse you (generic you, not personal) you lose your internet access. No court, no proof, just accusations.

Don't be afraid, be angry.
No. It would still have to be proven in court if it goes that far. In cases where it is clearly a violation, it likely doesn't go there, but you can't just make a bogus accusation and have it stand legally.

Just like copyright. You can claim a violation, but it has to be proven in court.


From wikipedia:

Criticisms
Takedown Notice

The DMCA has been criticized for making it too easy for copyright owners to encourage website owners to take down allegedly infringing content and links which may in fact not be infringing. When website owners receive a takedown notice it is in their interest not to challenge it, even if it is not clear if infringement is taking place, because if the potentially infringing content is taken down the website will not be held liable. The Electronic Frontier Foundation senior IP attorney Fred von Lohmann has said this is one of the problems with the DMCA.[15]

Google asserted misuse of the DMCA in a filing concerning New Zealand's copyright act,[16] quoting results from a 2005 study by Californian academics Laura Quilter and Jennifer Urban based on data from the Chilling Effects clearinghouse.[17] Takedown notices targeting a competing business made up over half (57%) of the notices Google has received, the company said, and more than one-third (37%), "were not valid copyright claims."[18]

Last edited by kennyc; 02-22-2010 at 08:21 AM.
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Old 02-22-2010, 08:36 AM   #53
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Originally Posted by kennyc View Post
Just like copyright. You can claim a violation, but it has to be proven in court.
Well, except that under the ACTA provisions it doesn't. Three accusations (not proven cases, accusations, no court, judge, or lawyer required) and your ISP is legally bound to sever your connection. Presumption of innocence need not apply.
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Old 02-22-2010, 08:59 AM   #54
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Originally Posted by Pardoz View Post
Well, except that under the ACTA provisions it doesn't. Three accusations (not proven cases, accusations, no court, judge, or lawyer required) and your ISP is legally bound to sever your connection. Presumption of innocence need not apply.
That's not what I just read by any means. The ISP can refuse and it would have to go to court.

BYW why is it you are SO argumentative? It's like anything anyone says, you just want to argue?
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Old 02-22-2010, 09:25 AM   #55
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That's not what I just read by any means. The ISP can refuse and it would have to go to court.
Well, p'raps we read different versions? Either way, while your ISP could refuse, I really don't believe that they would in most cases, anymore than they currently do.
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Old 02-22-2010, 09:40 AM   #56
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That's point exactly, by refusing they have not broken the law, only by going to court can it be determined. Law isn't about could's
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Old 02-22-2010, 10:06 AM   #57
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That's point exactly, by refusing they have not broken the law, only by going to court can it be determined. Law isn't about could's
As I said, the version I read didn't give ISPs the option - on receipt of three complaints they were required to cut you off, as opposed to the current system where cutting you off on receipt of a complaint is a matter of habitual practice, but not law - but ACTA is so shrouded in secrecy that it's eminently possible my information's out of date or wrong (and that's a whole other problem with it).

And I quite agree, the law isn't (or at least shouldn't be) about coulds, but about dids. My concern is that that important distinction has been being steadily eroded for the past thirty years, on a variety of pretexts of which "protection of intellectual property rights" is only the most recent.
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Old 02-22-2010, 10:12 AM   #58
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Originally Posted by Pardoz View Post
As I said, the version I read didn't give ISPs the option - on receipt of three complaints they were required to cut you off, as opposed to the current system where cutting you off on receipt of a complaint is a matter of habitual practice, but not law - but ACTA is so shrouded in secrecy that it's eminently possible my information's out of date or wrong (and that's a whole other problem with it).

And I quite agree, the law isn't (or at least shouldn't be) about coulds, but about dids. My concern is that that important distinction has been being steadily eroded for the past thirty years, on a variety of pretexts of which "protection of intellectual property rights" is only the most recent.
And there are indications of the 3-complainers change in the works and certainly if they change the law such that it IS a violation if the ISP does not respond or take down, then yeah, that would be against the law....
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Old 02-24-2010, 05:47 PM   #59
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As far as First Purchase doctrine and software goes, I believe the courts generally rule in favor of the consumer as the 'license concept' that the software industry practices is actually in violation of several portions of the Clayton act (I'm all new to this so I could be wrong in my understanding), where basically that license has to be agreed to "post purchase", ie: AFTER you've given your money for the software, you're then presented with the EULA. If the EULA was made available AT THE TIME OF PURCHASE then it would work more towards, "No they're not buying a copy, they're purchasing a license..." argument. Also, considering that we purchase software with the understanding that the package we've purchased is ours for as long as we want it, ie: there's no expectation to return it to the software company it came from at any time, again, it makes the software a purchased item, not a licensed item.

Now when it comes to the question of DRM'd works like eBooks, movies, and songs and such. I think the only legal question would be is can you break the DRM, and sell/rent/trade/give away a non-DRM'd version even if you've destroyed/deleted the original DRM version.

I understand that legally you do whatever the heck you want with the copy of the work you purchased for your own use as long as it doesn't some how violate copy right law (like maybe taking a book and painting the entire text on the exterior of your house such that anyone walking by could read the book, an extreme example but I think you'll get it). So I think the sticking point will be, when you sell/rent/trade/give away a purchased work it had better be as damn near possible to original purchase condition (excepting standard wear and tear) as possible otherwise you may have legal issue.

This is why this is actually so different from software/music/movies that we purchase. If the function of the DRM embedded in the package you purchased said work makes it impossible to transfer unaltered, well, tough crap. That's what you purchased. There is a potential with DRM on print items to make the work unreadable other than on the device the work was originally purchased to work with.

Due to how software/music/movie CD and DVD's and their respective players are constructed, it's not really feasable to alter the media/content after the fact so that it only plays in the player it was originally used in. I can buy a DVD that was rented to 50 different people and it will still play in my DVD player, unaltered. With a DRM'd book, that's not always possible without altering the file you purchased.
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Old 02-24-2010, 06:36 PM   #60
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I don't think so. That's certainly not what the law says.
When it comes to digital media the various concerned industries have attempted to practice an aggressive "Guilty, and you shall hang by the neck until you are dead, Dead, DEAD!" kind of attitude (as seen by 7 year old little girls and 65 year old grandmothers being dragged into court by the RIAA for downloading one or two songs).

Something does need to be done to address the extreme aggressiveness, but one can only pity the industries. The digital genie is out of the bottle. Anything transmitted digitally can be copied and distributed relatively quickly, cheaply, and easily, with zero degradation.

Effectively the march of technology has screwed their stranglehold, the only thing they can do is attempt to make it a crime with such dire consequences that no one dare copy anything for fear of losing one's ability to reproduce, or try and make it a "moral crime".

I like Al Yankovich's song that satires the situation, "Don't Download this Song":

http://www.youtube.com/watch?v=zGM8PT1eAvY
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