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Topic: The law and what might have been (Read 3786 times) |
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rhinoceros
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The law and what might have been
« on: 2003-06-30 12:42:48 » |
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The law and what might have been
Damn... I had been planning to kill someone, I had my long knife sharpened and ready, but I got caught. Do I have to pay damages to his family now? ;p
$180 million at $500 a month . . .
Vickie Chachere, June 28, 2003
http://www.orlandosentinel.com/news/orl-locpayback28062803jun28,0,5719929.story?coll=orl-news-headlines
TAMPA -- A man who schemed to steal satellite television signals now has something much bigger than a cable bill to pay -- a whopping $180 million restitution order on which he is to make $500 monthly payments.
A full payback would take 30,000 years.
<snip>
U.S. District Judge James Moody ordered the restitution Wednesday, based on a formula of how much Frazier's intended victims, Direct TV and Echostar, would have lost if his scheme had succeeded. The television companies estimate they could have lost $900 million in business.
<snip>
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Hermit
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Re:The law and what might have been
« Reply #1 on: 2003-06-30 13:38:37 » |
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I wonder what this means?
Quote:| Frazier was arrested in October 2002, when Customs agents tracking his operations found computer chips and hacking gear in his luggage on a flight from Canada.[Hermit: Quotation from the originally cited article.] |
"Hacking gear"? I wish I knew what this comprises. I wonder if such equipment is sold, or whether it is merely conventional equipment such as logic analyzers, oscilloscopes etc. In which case, did Frazier's equipment bear a special label ("This are hacking equipments"? [Hermit: 'fawlty' grammar entirely intentional]) for the benefit of the usually not terribly bright customs inspectors? If not, do they now have special powers of discernment unknown to normal people? In which case, how do I know whether or not possessing an oscilloscope will land me in jail? Of course, a further important question is whether "computer chips" now contraband, after all, millions of people have access to them, and so far as I am aware, and in spite of the media mogul's best efforts (and apparently M$'s enthusiastic cooperation), possession of "computer chips" is not yet totally outlawed. Finally, I hadn't realised that "hacking" was an illegal activity - despite some confusion over what it means...
So if this article was not merely the completely erroneous product of confusion on the part of a reporter (not terribly unusual), this sounds like yet another wonderful "rail job" designed to establish a "squawking crow*" type precedent while disregarding once valued civil rights.
Hermit
*A squawking crow is an historic technique deployed by game rangers to prevent crows from becoming pests. When the crow population became too dense, the gamekeepers of yore would capture crows, tie them to a fence and torture them. The other crows would hear their cries of distress and evacuate the neighbourhood. Similar techniques have worked (using recordings of distress calls) to keep birds away from airfields and indeed, the strategy is often used in the business world, where a small competitor to a large company (or a loose conglomerate of large players, e.g. credit card suppliers) is permitted to survive, but kept hurting, so that when potential competitors evaluate the field, they are warned off. It appears to me that this technique is being adopted not only by the US government, but also by the media companies.
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With or without religion, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion. - Steven Weinberg, 1999
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billroh@churchofvirus.com
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Re: virus: The law and what might have been
« Reply #2 on: 2003-06-30 14:42:58 » |
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While I agree that it is strange to fine someone for something they did
not get away with, I think your analogy is a little off.
If it had read:
The law and what might have been
Damn... I had been planning to kill someone, I had done it before successfully and was let go cause I squeled on fellow killers. This time I didn't think they would catch me and I had my long knife sharpened and ready, but I got caught again. Do I have to pay damages to his family now? Even though I killed their other son and didn't have to pay for it last time? ;p
I think the answer should be:
No, you should just go to jail for the rest of your life.
For this guy, I think the fine is just a slap on the wrist anyway.
rhinoceros wrote:
>The law and what might have been
>
>
>Damn... I had been planning to kill someone, I had my long knife sharpened and ready, but I got caught. Do I have to pay damages to his family now? ;p
>
>
>$180 million at $500 a month . . .
>Vickie Chachere, June 28, 2003
>
>http://www.orlandosentinel.com/news/orl-locpayback28062803jun28,0,5719929.story?coll=orl-news-headlines
>
>TAMPA -- A man who schemed to steal satellite television signals now has something much bigger than a cable bill to pay -- a whopping $180 million restitution order on which he is to make $500 monthly payments.
>
>A full payback would take 30,000 years.
>
><snip>
>
>U.S. District Judge James Moody ordered the restitution Wednesday, based on a formula of how much Frazier's intended victims, Direct TV and Echostar, would have lost if his scheme had succeeded. The television companies estimate they could have lost $900 million in business.
>
><snip>
>
>
>----
>This message was posted by rhinoceros to the Virus 2003 board on Church of Virus BBS.
><http://virus.lucifer.com/bbs/index.php?board=54;action=display;threadid=28770>
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rhinoceros
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Re:The law and what might have been
« Reply #3 on: 2003-06-30 17:34:45 » |
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http://www.orlandosentinel.com/news/orl-locpayback28062803jun28,0,5719929.story?coll=orl-news-headlines
[Bill Roh]
If it had read:
"Damn... I had been planning to kill someone, I had done it before successfully and was let go cause I squeled on fellow killers. This time I didn't think they would catch me and I had my long knife sharpened and ready, but I got caught again. Do I have to pay damages to his family now? Even though I killed their other son and didn't have to pay for it last time? ;p"
I think the answer should be:
No, you should just go to jail for the rest of your life.
For this guy, I think the fine is just a slap on the wrist anyway.
[rhinoceros]
I am no expert in law or the legalese language, but what was this supposed to mean?
<quote from the article>
"U.S. District Judge James Moody ordered the restitution Wednesday, based on a formula of how much Frazier's intended victims, Direct TV and Echostar, would have lost if his scheme had succeeded. The television companies estimate they could have lost $900 million in business."
<end quote>
As I read it, that amount does not seem to be a fine but damages to be payed to the would-be victims if the scheme succeded. Isn't it so? Did it mean that it was only a fine which was calculated based on the possible future damages?
Damages for the "murder of the other brother" do not seem to have been taken into account.
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rhinoceros
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Re:The law and what might have been
« Reply #4 on: 2003-06-30 17:58:54 » |
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[Hermit]
"Hacking gear"? I wish I knew what this comprises. I wonder if such equipment is sold, or whether it is merely conventional equipment such as logic analyzers, oscilloscopes etc. In which case, did Frazier's equipment bears a special label ("This are hacking equipments"? [Hermit: 'fawlty' grammar entirely intentional]) for the benefit of the usually not terribly bright customs inspectors? If not, do they now have special powers of discernment unknown to normal people? In which case, how do I know whether or not possessing an oscilloscope will land me in jail or not? Of course, a further important question is whether "computer chips" now contraband, after all, millions of people have access to them, and so far as I am aware, and in spite of the media mogul's best efforts (and apparently M$'s enthusiastic cooperation), possession of "computer chips" is not yet totally outlawed. Finally, I hadn't realised that "hacking" was an illegal activity - despite some confusion over what it means...
[rhinoceros]
Good point. I would hope the accusation was not that he was carrying the equipment, but that they already had something on him and the particular assortment of equipment was used as evidence -- or else, that would not be good at all.
[Hermit]
So if this article was not merely the completely erroneous product of confusion on the part of a reporter (not terribly unusual), this sounds like yet another wonderful "rail job" designed to establish a "squawking crow*" type precedent while disregarding once valued civil rights.
[rhinoceros]
The 180 million "restitution" certainly looks like a "squawking crow" for others to see.
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Hermit
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Re:The law and what might have been
« Reply #5 on: 2003-06-30 19:29:48 » |
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Possession of equipment can only point to capability. It used not to be a crime to possess or use analytic equipment - even if it was used to reverse engineer the work of others (or most of the major computer companies would not exist). As I comprehend "restitution" (in Roman-Dutch and English law) it can only apply when a tort (a measurable damage) can be proved. While I understand that the US can apply punitive sanctions, my understanding was that this could properly apply only in situations where aggravating circumstances (wilfull, wanton and reckless) were proven. It could be that the last mismash of insane laws intended to deprive users of their rights has changed this. Perhaps one of the legal-eagles on the list could provide a better perspective.
Kind Regards
Hermit
PS re not comprehending, the following paragraph might be elucidatory.
Quote:| While the climate right now is not as bleak--unless you're a Muslim immigrant--as it was during the harshest days of McCarthyism, these incidents indicate a powerful, frightening trend. Today, deeply reactionary forces don't need a Joe McCarthy in the U.S. Senate. The hecklers, goons, radio and TV talkshow hosts, nativists, and know-nothings in our midst are perfectly capable of doing the tarring and feathering themselves. |
Refer "The End of Freedom: Enforced Conformity" which I will post separately so as not to confuse the threads.
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With or without religion, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion. - Steven Weinberg, 1999
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billroh@churchofvirus.com
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Re: virus: Re:The law and what might have been
« Reply #6 on: 2003-07-01 15:16:20 » |
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I see your point Rhino. It's a good one. I agree that it reads as like
the intended victims will reap the reward. I'm am less supportive of
that than a State fine, which seems the right course, after a prison
term of some sort that is, to me. Had he succeeded, then I can see the
money going to the victims - but not in this case. I hand it to you Rhino.
Bill
rhinoceros wrote:
>http://www.orlandosentinel.com/news/orl-locpayback28062803jun28,0,5719929.story?coll=orl-news-headlines
>
>
>[Bill Roh]
>If it had read:
>
>"Damn... I had been planning to kill someone, I had done it before successfully and was let go cause I squeled on fellow killers. This time I didn't think they would catch me and I had my long knife sharpened and ready, but I got caught again. Do I have to pay damages to his family now? Even though I killed their other son and didn't have to pay for it last time? ;p"
>
>I think the answer should be:
>
>No, you should just go to jail for the rest of your life.
>
>For this guy, I think the fine is just a slap on the wrist anyway.
>
>
>[rhinoceros]
>I am no expert in law or the legalese language, but what was this supposed to mean?
>
><quote from the article>
>"U.S. District Judge James Moody ordered the restitution Wednesday, based on a formula of how much Frazier's intended victims, Direct TV and Echostar, would have lost if his scheme had succeeded. The television companies estimate they could have lost $900 million in business."
><end quote>
>
>As I read it, that amount does not seem to be a fine but damages to be payed to the would-be victims if the scheme succeded. Isn't it so? Did it mean that it was only a fine which was calculated based on the possible future damages?
>
>Damages for the "murder of the other brother" do not seem to have been taken into account.
>
>
>
>----
>This message was posted by rhinoceros to the Virus 2003 board on Church of Virus BBS.
><http://virus.lucifer.com/bbs/index.php?board=54;action=display;threadid=28770>
>---
>To unsubscribe from the Virus list go to <http://www.lucifer.com/cgi-bin/virus-l>
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Hermit
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Re:The law and what might have been
« Reply #7 on: 2003-07-01 17:34:29 » |
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Ah the know nothings amongst us...
First, consider, that nobody can "steal" a radio signal (except when close enough to the transmission antenna to be able to draw off power that is meant for the transmission - not the issue here). Let me explain by analogy. If you pass messages in morse code between yourself and a neighbor by interrupting a stream of urine, and someone in between happens to figure out the meaning from the tinkling, the listener commits no theft. No matter if you are splashing "potentially valuable information", or even "actually valuable information" on your lawn, that still does not affect the fact that a listener, no matter how unauthorised, has performed no criminal action. Even though you might be splashing in code and the man in the middle has perhaps "broken the code" the man in the middle has committed no theft. He cannot, as no theft has occured. You chose to broadcast your information - what those splashed upon do with it is no longer your business. Now if you choose to modulate a radio transmitter using a moisture detector as a key, this won't change the situation. You are choosing to broadcast your information. Theft requires the thief to intentionally deprive an owner of something valuable. Even if we pretend that what is transmitted by the TV broadcasters is more valuable than neigborhood pissing contests, the owner of the material is deprived of nothing. So - no theft can occur at all.
Now consider that everyone in the USA has been deprived of the ability to broadcast on the frequencies which the satellite broadcaster is using. Given the 9th and 10th Amendments, I'm not quite sure where the power to deprive everyone of the use of bandwidth originated, but I am quite sure that receiving a broadcast is even farther from stealing than making copies of material received by you - which was a right repeatedly defended by US courts through the 1970s and 1980s. Right up until the US sold itself to the highest bidder. Which appears to have been the media companies. This becomes self evident when you notice that the US Constitution, Article I, Section 8 permitted: " The Congress" to have the power " To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" and the laws, barring the use of published and broadcast information which have recently been passed appear of no benefit to either the "Progess of Science" nor "useful Arts" never mind to "Authors" or "Inventors." Only to the media distributors.
Next, notice that the potential sale of material by anyone has no value at all. Only actual and contracted sales have value. After all, the economy could collapse, or Americans might decide to turn off their TV sets (and if they did, would probably massively benefit both the "Progess of Science" and "useful Arts"). Further, a person who is not yet a customer does not represent income. After all, there may be others like me who choose not to watch TV - because it is too costly in time and screwed up perspectives, not because of financial obligations. Then there are others, for example, those who have been incarcerated and so have great difficulty earning a living wage (and are not eligable for benefits) who simply cannot afford to pay for TV service. They will never be customers. Which appears to make a nonsense of the purported "losses" based on the demographics of those who are not customers. Speaking of ex-cons, I'm not sure how billing an "ex-con-to-be" $500 a month is going to benefit society. Is it the intention of this society to make criminals of their "near geniuses"? Or just those who offend the media companies. As far as I can see, this particular person has been sentenced to becoming a permanent criminal. Or are ex-cons in the USA supposed to earn sufficient to make such payments? If so, some statistics supporting such a claim would be good.
I suggest that the stench of urine spattered sidewalks would be sweeter than what has been suggested here. By far.
Hermit
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lotusfox
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Re:The law and what might have been
« Reply #8 on: 2003-07-03 09:29:48 » |
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you rule hermit! 
this argument is exactly what i was trying to explain to a friend of mine yesterday. he's absolutly convienced that people trading mp3's is both theft and a crime. even though he is still willing to copy music. should i turn him in?
lotusfox
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Re:The law and what might have been
« Reply #9 on: 2003-07-03 12:02:25 » |
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[lotusfox] you rule hermit!
[Hermit] Why thank-you 
[lotusfox] this argument is exactly what i was trying to explain to a friend of mine yesterday. he's absolutly convienced that people trading mp3's is both theft and a crime. even though he is still willing to copy music. should i turn him in?
[Hermit] While, as I have shown, using radio broadcasts is not theft in any sense of the word, mp3 (and other) trading raises slightly different issues. Both, while still not theft, have been made into not only a civil offense, but a serious crime. A crime, like drug taking, which injures neither society nor individuals (but see below), but where the accused seems to have lost the right to the presumption of innocence, can end up in jail and, in consequence, can get a person a felony record with consequent loss of most civil rights including the right to vote. With the media companies announcing that they are "going after" individual traders (anyone heard of vigilantism?) there appears to be a risk of being flattened by the system. As such, like drug use, unless you have thought about the probable consequences of being caught, as well as the probability of being caught and have decided that gains to you (or possibly the value to yourself of the statement your arrest and prosecution may make to society (but be realistic assessing this)), makes the risk acceptable, engaging in trading in places where it is likely that you will be monitored and possibly used as an example, is not only harmful, it is as stupid as lighting up a toke in front of a police officer, when you could simply refrain from drug use - or could at least choose a location where you are highly unlikely to be forced to accept the probably draconian consequences of your choices.
[Hermit] "Turning somebody in" or worse, threatening to do so, could conceivably make you eligible for charges of blackmail and worse, conspiracy type indictments where you are deemed guilty until you prove yourself innocent (don't ask about what happened to the constitutional rights of the accused - they have been deemed inconvenient and disposable). When "guilty" of the same behavior yourself, tit-for-tat suggests that proposing to "turn somebody in" approaches the degree of insanity of attempting to make a large percentage (some 1/3 of all Americans) of the population into criminals.
[Hermit] Notice that the artists (authors) are being deprived of a small benefit by mp3 (and DiVX et al) trading, and while it could be argued that the current media and distribution arrangements harm them more than trading (and to my view do nothing to encourage the "Progress of Science" or "useful Arts"), this is not an effective defense (tu quoque is always invalid). However, the enforcement of the distribution/media company arrangements certainly appears to me to deny and deprive people of rights guaranteed by the 9th and 10th amendments as well as by regulation and custom (fair use), and this might yet be used as a valid defense - yet given the reality of the court structure, will probably still fail.
[Hermit] Bear in mind that there are many technical "solutions" which do "mask" the origin and destination of files, making prosecution at best impossible, and at worst unlikely. And the problem that the media distribution companies face is that use of such systems is more likely to proliferate the more successful their attacks on "ordinary users". Given that this is the situation, this makes it likely that the current approach will simply result in the same tragic situation as we see in the drug environment - where the penalties sought against "ordinary users" become more and more harmful as the probability of a successful prosecution declines. Meaning that the law becomes utterly inequitable (there used to be Constitutional defenses against this too).
[Hermit] So what can/should be done to prevent this from happening.
[Hermit] I'd argue that there are a number of approaches that could be taken. One approach - to my mind the most desirable - would be to use this as a platform to "fix the system." Would the 80 million people engaging in trading be prepared to vote for a presidential candidate who says this (and the loss of other freedoms) needs to be fixed? If so, this might be a very beneficial outcome. Certainly the current situation precludes the deployment of most of the following potential "fixes" and as we have seen threatens an ever escalating "war on users."
[Hermit] We know that the average consumer spends $120/year on media. So one self evident solution would be a small levy (I suggest $2/month for a DSL/Cable user - equivalent to double the average media spending) based on bandwidth available being assessed on all Internet connections (and potentially disk burners or blank media), to be paid on a pro rata basis (popularity) to copyright holders - and simply making trading (and disk burning) legal. While this is still "unfair" in the sense that some people will be paying for, but not using this potential, the simplicity of such a scheme makes it socially beneficial - and would raise more for copyright owners than the current media distribution channels.
[Hermit] Another approach would be to establish an "honor" system. Where a user could pay a small fee - perhaps 20% of the cost of the media through conventional channels for a complete copy or a pro rata rate for partial copies - directly to a trust established in favor of the artists. I suspect that such a system would be widely used (and would again benefit artists far more effectively than the current situation). Such a system could be established independently of the media companies - and would provide a very effective defense against charges of "theft".
[Hermit] Yet another approach would be to mandate such a system, where a "legal" (and high quality) download would be available to anyone paying an appropriate fee - and possibly an even smaller fee allowing pay per use. Such a system could be trivially implemented by means of a "license to use" based on existing public key technology. If this were implemented by government (e.g. Library of Congress), then unlike the disasters being dreamed up by the media companies (and juggernauts like Microsoft) this need not mean attempting to block fair use, as the file need not be locked away behind mandated protection systems.
[Hermit] There are many other potential fixes (and bypasses) which permit the exercise of rights without shortchanging artists. Some appear to have potential commercial value - or although non-commercial, may be legitimate "work-arounds" to the existing minefields and so are not discussed here.
PS Caveat: I'm not a lawyer and the above is my opinion not legal advice! Indeed, anyone thinking that they have found legal advice on the Internet is probably terminally mentally impaired and the advice almost certainly worth exactly what is paid for it (nothing).
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Re:The law and what might have been
« Reply #10 on: 2003-07-05 20:01:59 » |
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Let the playground pirates rule
The music industry's anti-download scare tactics just won't wash
Source: The Guardian
Authors: Alexis Petridis alexispetridis@hotmail.co.uk
Dated: 2003-07-05
Anyone considering illegally downloading an MP3 file today should think twice. According to a cover article in the current issue of the New Yorker, double-clicking that download button will make you directly responsible for plunging the world back into the 5th century. It posits a doomsday scenario, backed up by research from Microsoft, where download-happy music fans will, any second, cause the appearance of a "vast, illegal, anarchic economy" to rival the legitimate entertainment industry.
"With no visible means of support," it continues solemnly, "many artists would be forced to stop working and a cultural dark age would ensue." The implication seems to be that unless downloading ceases immediately, by this time next year the members of Coldplay will be huddled by a roadside somewhere, their shivering fingers pathetically clutching cardboard signs that read "will play intelligent yet slightly melancholy alt-rock for food".
The New Yorker article is filled with unwittingly hilarious stuff like that: confirmation that, faced with declining sales and spiralling profits, the music industry has gone barking mad. The most compelling evidence of all is theindustry's latest plan to combat internet piracy.
The industry has always been full of bright ideas - eight-track tapes, plastering records with skull and crossbones logos that warned home taping was "killing music", signing Mariah Carey for $80m at precisely the point her records stopped selling, etc - but this one is truly a dazzler. The Recording Industry Association of America has announced that it intends to start filing lawsuits against individual consumers who download MP3 files illegally: according to one legal expert, each downloader could be "sued for several hundred million dollars in damages". The British Phonographic Industry is making similar noises. "Litigation can't be ruled out in this country," the BPI's Sarah Roberts claimed this week.
Back in the States, Orrin Hatch, chairman of the Senate Judiciary Committee and budding "patriotic songwriter" - his fans include legendary music critic George Bush Snr - has jumped into the debate with exactly the sort of subtlety we've come to expect from rightwing US senators. Hatch thinks that hundred-million-dollar lawsuits are too good for them. "I'm all for destroying their machines," he thundered recently.
He must know that the majority of people involved in downloading music illegally are teenage pop fans. The record companies certainly do, even giving them their own soubriquet, "playground pirates". What better way of giving an ailing business a shot in the arm than by marching a load of 13-year-old Busted fans into court, ruining their families financially, then smashing their computers in front of them? Perhaps the music industry has simply cracked under the mental strain involved in ignoring the proverbial elephant in its living room. No music fan would rather have an MP3 file than an "official" CD.
Even the "playground pirates", who don't care that the sound quality is lousy, would be more interested in something that comes with a cover: what their idol looks like is more important to a teenybopper than the music they make. In an attempt to wheedle as much money as possible out of the youth market, it has concentrated on promoting artists with a turnover speedy even by teeny pop standards.
It has now reached critical mass. Pop artists have become so transient that what's fashionable to own now is the subject of derision in a few months' time, as evidenced by the firefly careers of Hear'Say and One True Voice. Fifteen quid is a lot of money for a teenager to spend on a CD that's going to get you laughed at this time next year. People download MP3s because CDs are too expensive.
For older music fans, the financial reasons for downloading an MP3 are undoubtedly heightened by the sensation of putting one over an industry that has relentlessly screwed its customers for the past 20 years. If the resultant declining sales mean that record labels are forced to prune some of the musical deadwood they spend vast amounts of money trying to foist on an uninterested public, then so much the better.
For the music industry, the whole point of introducing CDs in the early 80s was not to create a more durable format with better sound quality, but to milk as much money out of the public as possible. CDs are cheaper to manufacture than records (they cost 50p each), but sell for more in the shops.
This is not news. Everybody realises that CDs should be cheaper, from people who know the background to teenyboppers who realise their pocket money doesn't stretch that far. The music industry is too stubborn and greedy to do anything about it. Instead, they're happier to propagate lurid scare stories about the onset of a second dark age and haul fans into court: architects of their own destruction, hastening their demise.
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Re:The law and what might have been
« Reply #11 on: 2003-07-16 21:18:25 » |
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An interesting excerpt from a selection of articles which I found at Xiph.org (minor reformatting) while researching this issue further. In particular, the article, "A History Lesson" is particularly enlightening.
Music isn't an Art, it's an Industry.
Internet media issues don't apply solely to source code or information format. Controlling the music itself is a burning issue for the music industry.
—and industry is the key word here. Music is no longer an expression of the soul or the work of an artist; it's a 'product' that is manufactured, packaged, catalogued, distributed, managed, regulated, and above all sold. Music is just another vehicle for maximizing profits. The RIAA, mainly a front for the recording industry that supports the status quo, trumpets loudly that the Internet is the greatest threat to artists that the world has ever known... at the same time that the RIAA is making a desperate grab to control this new distribution infrastructure. The great irony is that the Internet might indeed be an artist's worst nightmare-- if the RIAA succeeds:
...corporate mergers are squeezing hundreds of musicians out of the business without even giving them the rights to their recordings, and executives of major record labels are meeting behind closed doors to develop a way to police and control the distribution of music on the Internet.
[...]
Putting control of the Internet in the hands of the corporations means that a utopian musical vision may be dying. ...the chances of a dystopian world are increasing, one in which record companies have even greater control over music distribution
--the New York Times, Monday, May 17, 1999, article by Neil Strauss
One major push in the RIAA effort to control the music distribution infrastructure of the Internet is to legislate mandatory 'digital watermarks' for playback. Players that do not look for these 'watermarks' or play the music anyway will be illegal. Make an educated guess as to who will control the watermarks.
the record industry has a plan to force hardware and software companies to exclusively adopt its Secure Digital Music Initiative as the standard for delivering music online. ...SDMI backers want manufacturers to build a time-bomb trigger into their products that, when activated at a later date, would prevent users from downloading or playing non-SDMI-compliant music. The hardware would initially support MP3 and other compressed file formats, but a signal from the RIAA would activate the blocking trigger.
--Wired News article by Christopher Jones
A History Lesson
The current position and function of the music industry is an invented one. Approximately one lifetime ago, recordings were not technologically possible. With the advent of recorded sound, enterprising businessmen (Thomas Edison, a worthy predecessor of Bill Gates, and Columbia Music, just as tough and nasty) found that prepackaged recordings could be turned out in endless, identical quantity for very little cost and sold.
This wasn't an entirely new idea; an example of a preceding 'packaged performance' technology is the player piano roll. It is interesting to note, however, that these rolls were held by the courts to be uncopyrightable; the music itself was protected, but the 'performance' was not. The music industry originally lobbied the courts and Congress to keep these formats copyright-free so that it would not owe artists any royalties; in 1908, the Supreme Court ruled that phonograph records and player piano rolls did not fall under copyright.
It is important to note that selling recordings was a tenable business plan only because the average person could not produce a recording. If the phonograph record were cheaply reproducible in that day, the prepackaged music industry would never have existed as it would have been impossible from the very beginning to prevent people from making copies which were, at the time, entirely legal.
Congress changed the copyright law in 1909 to explicitly grant composers royalties on recordings sold. At the time, the music industry protested the decision bitterly; eventually it settled for requiring artists to sign over copyright on all work as a standard element of a recording contract.
The copyright protects the record label, not the artist.
(an article on the subject from CNET)
Fast forward to the 1970s
The undoing of the distribution profit juggernaut began with the compact cassette tape, a development greeted by as much wailing and gnashing of teeth within the walls of Music Inc. as MP3 is causing today. Although the copy wasn't as good as the original, it was cheap and easy to make. Copying commercial music was once only the domain of organized crime; now any individual could make a copy trivially. The industry tried to outlaw the compact cassette, then settled for taxing it and legislating against copying.
Digital audio tape (DAT) caused the next uproar; a perfect copy was now possible. The music industry players, forerunners to the RIAA, sought to destroy this technology and mostly succeeded; DAT never caught on at any sizable level. It is interesting to note that "small-time" artists depend heavily on DAT for production and recording; this is practically the only music segment that ever bought into DAT. Clearly the RIAA didn't have their interests at heart.
Computers, the Internet and especially MP3 have now made the copy easier, cheaper and more convenient than the prepackaged content on sale.
That the copy costs nothing concerns intellectual property, a real worry for artists. That the distribution costs nothing is what really motivates the anti-MP3/anti-Internet effort. Copyright, once bitterly contested by the music industry, is now clung to as a weapon to preserve the distribution chain.
Copyright law has always been more about protecting the interests of publishers than those of creators. The Internet in general, and MP3 in particular, have drastically reduced the costs (financial, convenience, material, distribution) of creators getting their material out to their audience, and have *almost* made it trivial for audience members to *directly* pay creators for access to their work.
The middlemen have become irrelevant. The smart ones are devising new business models --- O'Reilly isn't going away because they are perceived as genuinely adding value and lots of their customers would buy their books even if they're available for download.
I just paid $20 for Neal Stephenson's new book; he probably got about $3 of my money, if that. The other $17 went to the distribution chain, of which *maybe* $1 goes to people who actually contributed to the book --- editors who actually edited, proofreaders, etc.
Eventually, a favorite author will release a new novel and I will pay $5, of which the majority will go to the author and all but a few pennies to other real contributors, for access to it with rights to print one copy.
The middlemen are merely fighting a rearguard action against the tide of history; a delaying action that may alter *when* I will buy a book that way, but not the ultimate reality.
—Carl Alexander xela@mit.edu
The music industry finds itself in a position where the basic assumption behind its original business model (the recording is too expensive for a person to reproduce him or herself and the distribution can be tightly controlled for maximal profit) is no longer true. The music industry feels extremely threatened. It should. This is a major evolutionary pressure.
Evolutionary? Of course; commercial music is faced with extinction only as long as it refuses to adapt, as long as it refuses to loosen its grip on the endless easy profits it believes it is entitled to. The industry is not acting to protect artists or the artists' interests (bards, musicians and storytellers thrived long before there was an industry to 'protect' them), it is not acting to prevent musicians from being 'driven out of business' (it impoverishes artists itself); it is acting to preserve the status quo and its own profit-inflated bulk. It's quite possible for the music industry to refashion itself, but rather than evolving and thriving in a new niche, the Dinosaurs, staggering under their own smothering weight, are trying to legislate the Mammals out of existence.
The double-whammy
From one side, we see groups (Fraunhofer, IBM, Thomson, Progressive Networks, Microsoft et al.) trying to control music technological infrastructure (MPEG, TwinVQ, etc) to be used as weaponry against their competitors. On the other front, we have the music industry trying to squeeze all the cash they can out of the content to maintain their enormous, recently obsolete bulk. In case they don't succeed in eliminating electronic music formats, they too are making a major bid to control the infrastructure.
There are multi-trillion dollar interests represented in the above clash. Businesses that only have a few million dollars are entirely outclassed.
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With or without religion, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion. - Steven Weinberg, 1999
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Hermit
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Re:The law and what might have been
« Reply #12 on: 2003-07-17 12:39:34 » |
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New Bill Seeks Prison Time for File Swappers
Source: dc.internet.com
Authors: Roy Mark
Dated: 2003-07-17
Legislation to make illegal file swapping a felony was introduced in the U.S. House of Representatives Wednesday by John Conyers (D.-Mich.) and Howard Berman (D.-Calif.).
The bill carries penalties of up to five years in prison and a $250,000 fine for uploading a copyrighted file to a peer-to-peer (P2P) network.
The bill assumes each copyrighted work put on a P2P network was copied at least 10 times for a retail value of $2,500. The total retail value would make swapping a single file a felony.
The legislation also bans the practice of videotaping a movie in a theater.
Entitled the Author, Consumer and Computer Owner Protection and Security Act of 2003 (ACCOPS), the bill calls for an additional $5 million to augment the current $10 million allocated to the Justice Department to investigate copyright crimes.
The bill requires that file-sharing sites get consumer consent before searching a computer for content or to store files. In addition, the legislation would enable better information sharing between countries about copyright piracy.
A further provision of the bill would make it a federal offense to provide false information when registering a domain name.
The bill comes just two weeks after the Recording Industry Association of America (RIAA) issued a warning to P2P users that it planned to file "thousands of lawsuits" against individual computer users.
The RIAA, which has also filed lawsuits against the major P2P networks such as Kazaa, Morpheus and Grokster, has urged users of file-sharing programs to disable file-uploading capabilities and take steps to block copyrighted music from being pirated.
Kazaa, Morpheus and Grokster all have features built in to disable the software's uploading capacity and the RIAA legal threat is seen as an attempt to scare users into blocking uploads.
Statistics from Nielsen/NetRatings show that P2P traffic dropped more than 15 percent in the first week after the RIAA threat.
April, the RIAA filed four lawsuits against university students operating "Napster-like internal campus networks" that aid in the theft of copyrighted songs.
Those lawsuits were settled with the students agreeing to pay damages ranging from $12,000 and $17,500 each.
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With or without religion, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion. - Steven Weinberg, 1999
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Hermit
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Re:The law and what might have been
« Reply #13 on: 2003-07-24 04:46:33 » |
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A serious proposal is made which could eliminate the current madness of the US Government, provoked by the media distribution companies, in attempting (as previously documented on this thread) to convert some 30% of the population into felons (and in so doing, removing their ability to vote). This is the first draft of the proposal, submitted for discussion and is not for distribution outside the CoV as we do not wish to be slash-dotted or have our precedence stolen. The article in question may be viewed at [ Hermit, "Re:The law and what might have been", Reply 13, 2003-07-24 ] . Please note and respect the attached copyright notice.
Hermit
Confidential Draft Copy. Not for General Distribution.
A US-centric proposal to restore sanity to the current peer to peer debacle.
1) The Library of Congress will act to digitize all material accessible to them, whether on paper, music, film, data or any other media including three dimensional objects, using the best technically feasible methodology, where “best” means the least amount of data loss in the digitization process.
2) The Library of Congress will make every effort to ensure that the source material is optimally archived to ensure its continuous availability.
3) The Library of Congress will make every effort to ensure that the system always represents the best available technology.
4) The Library of Congress will make every economically possible effort to access and digitize material not currently in their possession.
5) The Library of Congress shall issue a permanent ascension number to all items stored in the system in order to ensure continued addressability of all materials.
6) The Library of Congress shall establish a “fair” categorization system allowing different classes of material to be rewarded at different rates. e.g. A book sized work of fiction may receive a higher royalty payment per access than a newspaper article. A cinematographic item may receive a higher payment than a musical composition.
7) The Library of Congress will not permit deletion or modification of any item stored in the system, but shall provide a means to provide links to the “current version” and “derivative works” and to bar access to works on receipt of an appropriate court order.
8 ) Material which it would be illegal to distribute (confidential records, outlawed pornography, etc.) will be captured in this system, and held in cryptographically secured archives such that in the event of the material becoming legally distributable at some time in the future, it will be available. Such material may be made available to authorized institutions by means of presidential decree or Congressional authorization.
9) The Library of Congress will establish or contract to establish a system designed to make this data available over the Internet. The system will be highly distributed, expandable and designed to handle any conceivable user load.
10) The system will provide users the ability to request this data in any suitable format. As many “translated formats” as possible will be supported.
11) Users, corporate and private shall have the ability to co-locate systems and interconnect to the LoC system on payment of fees which shall be established by the LOC and which shall not exceed the cost of providing such access or colocation by more than 20%. Such fees shall be reviewed and may be modified by Congress when reevaluating the fee structure as described in 20.
12) Private US based users may obtain a certificate to access this system at any US Post Office at no charge. The certificate will take the form of a secure digital certificate. This certificate will not identify or be used to track individual system users (although actual downloads or transfers of material will be recorded and may be used by the certificate user to prove a right to possess a copy of the material).
13) Corporate and non-US based users shall have the ability to obtain a certificate to access this system directly from the Library of Congress on payment of an equitable fee to be determined by the Library of Congress. Such fees shall be reviewed and may be modified by Congress when reevaluating the fee structure as described in 20.
14) Data will be transmitted to individual users in a secure format to be unlocked with the user certificate.
15) ISPs and other bandwidth purveyors will have the ability to operate a cache using software provided by the LoC for such material so long as it provides the details of downloads from the cache to the system.
16) The Library of Congress will keep track of material transmitted for the allocation of royalty revenues and validation of reported line usage.
17) All Internet connections will be charged a levy which will be based on the bandwidth available from the connection.
18 ) The levy will be collected by the service provider and remitted to the Library of Congress.
19) A T1 connection will initially be presumed to have a value of $66/year ($6/month) being ten percent more that one third of the amount that an average purchaser currently spends on media purchases and rentals. Only one third will be charged, as sales and rentals of media are unlikely to cease, and the production and distribution costs will be eliminated. Slower connections will be charged a prorata rate. Faster connections will be subjected to a fee based on the number of system users from that connection with each user subjected to the same fee and this usage will be monitored by the system.
20) Modification to the levy amount will be managed by Congress, which shall take the total revenues raised, submissions by users and other interested parties into account prior to making a determination. The task of authorizing changes may not be delegated by Congress, although the evaluation of submissions and production of recommendations may be. Congress shall vote on this amount in each year in which Presidential elections are held, and shall finalize and publish the levy amount one month prior to the Presidential elections.
21) Ten percent of the money collected by this levy shall be used to pay for the system implementation. The balance shall be paid on a pro rata basis to the authenticated owner of the copyright of the work in question, or placed into a National Arts Endowment Fund in the event that no authenticated copyright owner is authenticated. In the event that the original author of the work has delegated the copyrights, the copyright owner shall provide a minimum of 50% of the received revenues from this system to the original author.
22) All financial transactions for this system shall be performed electronically.
23) Other countries will be encouraged to establish National organizations performing the same task and to this end all software developed for this system will be open source. In order to qualify to connect to this system, the country seeking connection must make all material sourced in that country available to this system on the same basis as described here.
24) All users possessing a valid certificate shall be entitled to posses (in any storage form) such material.
25) Transmission of information directly between users shall be outlawed unless a mechanism is used which notifies the system described here of the transfer (including the certificate of the sender and recipient) in order to fairly allocate royalty revenues. The fine for breaching this regulation shall not exceed the cost of the retail value of such an item, and such fines will accrue to the “royalty pool.”
26) Transferring material to a person not in possession of a valid certificate or without notifying the system of such transfer by means of whatever gateway is provided may also result in the transmitter and recipient having their access to the system suspended or permanently revoked.
27) ISPs providing International links shall filter all traffic from these servers, restricting access to the system to their user-base.
28 ) Methods will be provided for material originating certificate holders to upload material to this system and receive a royalty stream from the system for such uploads. Such certificate holders may be residents of any country.
29) Material submitted to the system may be embargoed for a period not exceeding 3 months by the copyright owner.
30) Attempts to misdirect royalty payments to a non-copyright holder will be a felony offense and may also result in the user being suspended or barred from the system.
Advantages of the proposed system
It meets the constitutional intent of copyright enactment, to further the availability and production of works of merit.
It generates a new source of revenue for producers and copyright owners.
It is self funding.
It removes the criminal potential of the current system (in excess of 80 million US citizens are not felons).
It removes a potentially massive load on the court system.
It prevents a large percentage of citizens from risking the loss of money, freedom, embarrassment and voting rights.
It fairly distributes the costs of access and use.
It provides a new, and significant national resource.
It ensures access to copyrighted materials to all citizens.
It provides a cost effective way for new artists to generate a revenue stream and equalizes access to the distribution of artistic works.
Royalty distribution is based on the popularity of works and the system and regulations ensure that the distribution is equitable.
It ensures the continuous availability of material, as well as establishing a National Digital Archive for posterity.
It provides a mechanism through which automated retrieval systems can access all published material opening the door to yet to be conceived and as yet unimplemented capabilities.
It removes the incentive to further develop anonymous peer-to-peer networks with the commensurate risks to public safety.
It provides an equitable, universal access method and ensures that the producers of works are appropriately rewarded.
It establishes a cost-effective mechanism for the settlement of International copyright issues.
Disadvantages of the proposed system
It distributes the load across those who use the system and those who do not (but no more so than, e.g. The existing levy on blank recording media).
It removes the ability of copyright owners to set the fee for electronic distribution of their works.
Clause 21 may be held to represent a “taking”, although I would submit that it could (and should) be defended on Constitutional grounds.
Copyright
© Copyright Hermit Technologies, 2003. TheHermit asserts that he is the author of this work, and has ceded copyright ownership to Hermit Technologies, Inc. No part of this document may be stored or reproduced in any form unless permission is granted by the copyright holder (Hermit@Lucifer.com) in writing and even then, only when the unmodified document and this copyright notice are preserved in their entirety.
Limited permission to store and reproduce this document, or parts of this document, for the purpose of discussion between members of the Church of Virus is granted to Lucifer Media Corporation and the members of the Church of Virus. Such permission expires at midnight Universal time, 2003-08-24.
Confidential Draft Copy. Not for General Distribution.
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With or without religion, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion. - Steven Weinberg, 1999
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David Lucifer
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Enlighten me.
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Re:The law and what might have been
« Reply #14 on: 2003-07-24 14:38:41 » |
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Quote:
6) The Library of Congress shall establish a “fair” categorization system allowing different classes of material to be rewarded at different rates. e.g. A book sized work of fiction may receive a higher royalty payment per access than a newspaper article. A cinematographic item may receive a higher payment than a musical composition.
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Is that necessary? Maybe they only have to classify the available content as a text or a binary object and then calculate a royalty based on size.
How much would you expect a content creator to earn per access under this system?
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