https://www.law.cornell.edu/uscode/text/17/512 (search for "(f)" a couple of times)
It has been a very weak penalty in practice without much enforcement, but there are some examples of it being used:
https://en.wikipedia.org/wiki/Online_Policy_Group_v._Diebold.... (successfully, but with low enough damages that it was mainly a moral victory and not really a disincentive for anything)
https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp. (rather less successfully, but not only was the work allowed to stay online, the case did confirm that copyright holders must at least give subjectively good-faith consideration to the idea that material or activity may be fair use before sending a notice of infringement. this does not necessarily require a proper legally reasonable weighing of the statutory fair use factors, just subjectively good-faith consideration.)
Even in a perfect world where the DMCA is "balanced" and any abuses are properly punished, this problem wouldn't go away - the platforms will merely provide alternative means for advertisers (and anyone else who's happy to pay) - their real customers - to take down whatever content they want. It will merely become a bullet point in their list of features that they offer to paid customers, completely independent of the DMCA (and thus wouldn't be subject to whatever the DMCA says).
(I also don't know what theories hosting providers use or don't use to argue that they don't have §1201 liability for things that their customers post...)
Edit: When you click “I agree,” you have signed a contract according to US Courts. If you somehow use the software without accepting the EULA, you have no license, which is automatic copyright infringement. Unless expressly stated, software is not “sold” in the US, ever. https://en.m.wikipedia.org/wiki/Clickwrap#Legal_consequences...
What does that mean?
Say that I have, in my hand, a copy of some software. I bought it at a store, for money. I did not sign anything (or even give my name). What law obliges me to follow the EULA? It can’t be contract law, since I did not sign anything. It can’t be copyright law, since I’m not making a copy of the software (or making a public performance, etc.).
So what is it?
And of course, the EULA would be part of the setup process.
I won’t necessarily agree to (or even see that display of) a EULA if all I do is reverse engineer the software.
Do other industries do this as well?
“By opening this CD jewel case, you agree to only play this CD as directed by the following rules”?
“By turning the key in the ignition of this vehicle, you agree to be bound to the terms of service”?
“Every time you press the start button on this coffee maker, you agree to extend your SuperCoffee™ subscription to one year in the future”?
Sort of? To my understanding, music and movies are kind of halfway to "licensed, not sold" either.
The box contains a copy of the software. But copyright law prevents you from making a copy of it, including the copy that your computer would need to make to run the software.
The copyright owner generally agrees to enter into a certain contract with whoever buys the box. Typically, the copyright owner specifies what the contract terms are, and it's usually non-negotiable. (The non-negotiability, making it a contract of adhesion, is the strongest argument against so-called "shrinkwrap" or "clickwrap" agreements. But that leaves the box owner with just a box, and no permission to use the software.)
You might be under the misunderstanding that contracts need to be signed to be effective. Nope. There are lots of ways to accept a contract offer, most often by "implied acceptance," where the parties just start doing what the contract says. In your case, that's probably by opening the box and sticking the physical media in your computer (or otherwise running the software). Similar to going to an amusement park whose ticket has a bunch of fine print on it, or working as an employee at a company for a while without ever quite getting around to signing the employment agreement they gave you.
I am not convinced of that. If I hold a book up to a mirror, am I breaking copyright law? If I read a book aloud to a child, am I breaking copyright law? My retinas will contain an actual physical image of the book whenever I look at the book. Are my retinas breaking copyright law?
> You might be under the misunderstanding that contracts need to be signed to be effective. Nope.
I am not under that misapprehension, but I do believe that a contract must be explicitly agreed to in order to be valid. And in my example, I did not agree to anything when purchasing software in a store; I gave them money, they gave me a box.
On the whole thing about a contract needing to be agreed on, you're right. Some countries have different jurisprudence, but a shrinkwrap license is difficult to enforce. You need to have actively agreed to a EULA. But copyright law still applies, and you're not given the right to copy software through copyright.
You seem to imply, but avoid to state directly, that the answers to my questions are yes, no, yes, and yes, respectively. And that would be completely absurd, and anyone arguing the validity of that in a court would be asking to lose.
Copyright makes copying illegal, yes (among other things, like making a public performance, making a new derived work based on the copyrighted work). But what is a copy? I would argue that a copy of a program must be something which can be used as a program by some other person. Like a copy of a book has to be usable as a book (independently of the original book) to count as a copy. Otherwise, it’s a derived work based on the original work. So what is a “work”? I would argue that a copy of a program in memory, like a mirror image, or a reflection in a retina, is not a “work”, since it can’t be displayed, used, or even sold.
But IANAL.
Not so fast!
17 U.S.C § 117 - Limitations on exclusive rights: Computer programs (a)Making of Additional Copy or Adaptation by Owner of Copy.—
Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1)that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2)that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
The age of technology was not just a revolution in silicon, but a revolution in wholesale stripping of consumer riggts by buisnesses through legal boilerplate as supported by the United States judiciary's continued coddling of the interests of the tech sector to the detriment of everyone else.
All that means is that I have to buy the software on the secondary market, and then immediately begin reverse-engineering it, without ever entering into the clickwrap by installing it, no?
Basically, you should be allowed to have copyright, or DRM, but never both. And you can't change your mind on it either... if the hardware is released with DRM, you don't get to release a non-DRM version because you realized you fucked up. If it's extant anywhere in the world, copyright's forever out of reach.
This isn't to say DRM is acceptable; most examples aren't. But it is legally incompatible to argue that a rights holder can have trademarks/copyrights but should not defend them.
Obligatory IANAL.
They've stolen from the public domain, and given those works back to corporations who didn't even have anything to do with creating them in the first place.
Look, there's a lot of problems with how both of these things work today, but that seems entirely nonsensical to me.
If at the start of the deal you ensure your work cannot fulfill the requirements of that deal, eg use DRM, then you do not enter into that deal as you have already refused it by not fulfilling your end.
In your analogy, you're putting locks on a house, but you were only allowed to rent the house under the agreement that you wouldn't leave it locked up. and you didn't leave a key with anyone or do anything to make sure the house was unlockable. In fact the locks are booby traps that will destroy the house when your rental period is up, robbing those who would otherwise occupy the house of every having that opportunity ... yes, it's a protracted analogy because it sucks and these are different concepts.
We're only giving them a time-limited lease to the stuff. If you leased land to someone for 75 years, and at the end of the lease term they started burying highly radioactive waste on the property to prevent you from taking it back for the next 330,000 years...
Well, you'd just refuse to lease it to people like that, wouldn't you?
We should demand that our government refuse to give those leases out if they do it. DRM or copyright, not both. DRM prevents the work from ever going back to the public domain.
Your arguments are ill-considered, in fact, you don't even prevent one. Just knee-jerk reactionary "nyuh uh!".
This topic on the other hand has nothing to do with fair use as there is no derivative work being created. It also isn't a copyright violation, it's a violation of the DMCA. Specifically it violates the DMCA's provision that prohibits distributing tools used to violate the copyright of other work.
Absolutely not.
Just as an example, the Sony v. Universal case involved direct copying from the TV stream to a VHS tape. Not only that, but it saved Sony itself from the contributory infringment claim too, not just the hypothetical users from their hypothetical direct infringment.
As for the DMCA issues, they're probably unconstitutional. Because fair use is constitutionally required (as held by SCOTUS in Eldred and Golan), a law that results in the doctrine being basically impaled by proxy can not stand.
This is the same rationale the court used in the VHS case. Because a fair use was found, Sony was allowed to continue making their devices. If it was tried today, the DMCA's anti-trafficking provisions wouldn't be allowed to stand IMO, as they would conflict constitutionally with the fair use requirement and factual finding in its favor by the court.
And while you are allowed to implement technical measures to prevent people from doing this or make it difficult you shouldn't have any legal protection.
You are allowed to make an emulator because there is nothing that says it's illegal. Under the DMCA, you are not allowed to distribute tools which help in the circumvention of copyright, which is what this tool does. It allows people to bypass the copyright protections Nintendo has put in place to prevent people from running copied games without permission.
Tools that facilitate this legal use shouldn't be an able to be taken down. It doesn't matter if you think they're using those tobacco accessories for something else.
But a tool that allows you to break say HBO's streaming DRM wouldn't get this protection.
Nintendo puts money into R&Ding product.
Then somebody goes on GitHub and says "let me help diminish sales of said product and open source their otherwise intellectual property"
I don't know if that is "fair use". Fair use in their terms is:
buy our product, use it like a regular person
If there was a clause that said "you can only run this emulator if you don't use pirated ROMs and you need to also own a physical unit", then... maybe? But I think your definition of free use is a little stretched. Would be curious to hear from others if I'm wrong.
Also, the rules are "buy our product, do whatever you want with it." Craftsman can't pursue legal action on me because I publish guides on using hammers (even their proprietary hammer) as a doorstop. The world of software has apparently been hard at work to take away our right to do whatever we want with the things we own, but I'd encourage all who read this to push back on others trying to move the goal posts on your right to do what you like with the things you pay cold hard cash for.
“I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”
For context: months before Valenti said that, in 1981, Sony’s creation and sale of the VCR had been declared contributory copyright infringement by the Ninth Circuit. An appeal to the Supreme Court was in progress. Months after Valenti said that, the Supreme Court reversed the Ninth Circuit decision—by a 5–4 vote.
If a single justice had voted the other way, the VCR would have been ruled illegal across the entire United States. Unfortunately, the movie industry was crushed by the weight of home recording and fast‐forward, and never recovered. Oops, sorry, I meant to say that after their attempt to make the VCR illegal failed, they embraced the format they had tried to destroy, and as a result earned billions and billions of dollars over the subsequent decades. Some Boston strangler!
Otherwise first sale doctrine means they can pound sand.
In fact all the tooling on github is designed specifically to only allow running homebrew but not priacy, you have to go a step further and find "sigpatches" which are not distributed on github if you want to run pirated games.
Emulation is legal, and has been for years. THis is not the same as Piracy.
Any proof of that?
I'm fairly convinced the main reason Xbox has retained integrity all these years on the One is because they let you boot into developer mode and let you run whatever you want. The protection isn't keeping you from using the console, it's keeping you from dumping games. (They obviously also invest a lot more into security, much of which trickles down from Xbox into Windows).
Here's a great talk about security on the Xbox, and why locking down the entire console is a non-goal: https://www.youtube.com/watch?v=U7VwtOrwceo
Wrong. No one open sources their IP.