Alias said:I don't have him kill filed. Since when do you represent "the rest of
us"?
You're very mad.
I'm Italian.
I think that Vista will be a great success, like Xp.
Linux could be a great thing, but only because is a free-source.
You can't find many programs for Linux, you can't do with Linux all the
things you do with WINDOWS!
W Gates..W Windows!
LOL! It is either legal to fairly use, or illegal.
All that is saying is that a contract is not equivalent to copyright. It
doesn't say that a contract may rewrite copyright law.
That wasn't the deal at the time of the sale. The deal was money for copy
of copyrighted material. I have my first sale rights long before any
shrinkwrap liecense.
I didn't claim that. I said they cannot shrinkwrap license away what is
found in copyright law/
David said:Umm, no.
If a law against speeding says, "it shall not be a violation of
this law to drive below a posted speed limit", does that mean driving
below the speed limit is always legal under all circumstances? (Say,
even without a license?)
Similarly, Copyright law says that fair use is not a violation *of*
*copyright* *law*. That does not mean that anything that is fair use
is always legal under all circumstances.
Just as you can't break into
my house to make fair use of a CD, you can't break a contract to make
fair use of a CD.
Here's the law again in case you still haven't read it:
"Notwithstanding the provisions of sections 106 and 106A, the fair
use of a copyrighted work, including such use by reproduction in
copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship,
or research, is not an infringement of copyright."
This does not mean that anything that happens to be fair use is
legal.
It just means that it's not a violation of copyright law.
It
could still violate other laws, agreements, and so on.
Copyright law says that fair use is not a violation of copyright
law. This helps you if you are being charged with a violation of
copyright law. It does not help you one bit if you are being charged
with violating a contract.
David said:Nobody has ever said a contract may "rewrite copyright law". All
I'm saying is that in a contract about the only thing you can do is
give up rights you have.
If I contract to buy 10 pounds of shrimp for
$80, I'm giving up my right to keep my $80.
If I contract to show up
at work, I'm giving up my right not to associate with the person I
agree to work for.
It is absurd to argue that because you have a right to something,
you must still have that right after you give it away in a contract.
It's just flat out crazy.
Of course you must have first sale rights before the license,
otherwise you couldn't give them away by contract!
This is like
arguing that you are still entitled to the $1 before you used it to
buy an apple because you had the $1 long before you agreed to use it
to buy the apple.
About the only thing you can contract away are things that would
otherwise be your rights. You have the right to be secure in your
property, yet a morgage contract is enforceable.
David Schwartz wrote:
That wasn't a choice.
Huh?
In that local jurisdiction, yes. Even if you were drunk driving, it would
be legal to drive under the speed limit, but that wouldn't make your drunk
driving legal.
But what local and state motor vehicle laws have to to with copyright law
is totally specioud.
For my private non-commercial use in my home, yes. As the copyright owner
has no legal expectation to know how I use my copyrighted material in the
privacy of my home!
LOL! You are insane. I can break into you house and fairly use my copy
of software. My breaking and entering your house doesn't make it an
infringement on the copyright.
Sure it does. If it is not an infringement then I have every right to do
it, especially for my private non-commercial use in my home. As the
copyright owner has absolutely NO LEGAL EXPECTATION to know how I use my
copy of software in the privacy of my own home.
ROFL! It means it is a limitation on the right of the copyright owner,
and no where under Title 17 Chapter 1 Section 107 does if give the
copyright owner any loophole to get around that limitation.
Nope. It doesn't say that.
LOL! In conjunction with the right of first sale, a post-sale term
limiting my fair use would be unconscionable. And if a some member of the
BSA wants to prove it, they can sue me.
Because until one sue me and wins, I have every right to follow my
interpretation of "fair use."
David Schwartz wrote:
Sell yourself into slavery then!
No. You are trading your money for shrimp. It is a commerial contract.
Much like in ProCD the shrink-wrap license is a commerial use contract.
LOL! No again you are entering a commercial contract. Your service for
your employers money.
No its not.
What? It would be totally unconscionable to believe that you could change
the conditions of sale AFTER the sale.
LOL! No. It is like a copyright owner claiming my copy of copyrighted
material is really their copy after I've already purchased that copy of
copyrighted material from the previous owner of that copy of copyrighted
material, the retailer.
That would be unconscionable.
And how do that make your property insecure?
I don't have him kill filed. Since when do you represent "the rest of us"?
Alias
Greg Ro said:I took him off my kill file(But still not talking to him). It kind of
hard to follow a conversation with on person on a kill file
I may not like Kurt way of talking. I do agree with some of the
things he has said. I have also disagree with some of the things he
has said.
Greg Ro
David said:That would be unconscionable. It would literally shock the
conscience. One of the limits on contracts is that they not be
unconscionable.
Exactly. Similarly, you can trade your fair use rights.
Right, and in so doing you lose your right to freedom of
association.
You can trade even fundamental rights for other things
of value provided such trades are not truly unconscionable.
It is. It's just flat out insane.
That would be like saying it's unconscionable to sell a car after
you buy it because the sale of the car changes the conditions of the
purchase by eliminating the right to use the car that you paid for.
Suppose you buy a car and then lease it back to me, is the lease
unconscionable because it changes the conditions of the original sale?
To be unconscionable, it would actually have to shock the
conscience. I grant that some EULAs and shrink-wrap agreements *do*
in fact shock the conscience and should be (and have) been held to be
unenforceable.
But your position seems to be that any EULA or shrink-wrap
agreement that removes anything you could otherwise do under fair use
is automatically unconscionable. That is what is absurd.
They are not claiming it is their copy. They are simply
restricting what you can do with it.
I recently purchased an electronic component that is sometimes
used in nuclear triggers. The manufacturer required me to execute a
contract stipulating that I would not use it to build a nuclear
trigger. Is the enforceable? Is it unconscionable? After all, it is
*my* component once I've bought it.
In some cases, where it actually does shock the conscience, then
yes, it would.
It can be taken from you if you fail to meet the contractual
obligations. Even if you enter the mortgage agreement after the
property was securely yours.
David said:Huh?
No, it would not be legal to drive under the speed limit if you
were doing so while drunk.
It would simply not be a violation of the
laws against speeding.
I'm trying to illustrate an incredibly simple point that for some
reason you seem totally incapable of grasping.
It is that something
is not legal just because you can find one law that it doesn't
violate.
This is perhaps the simplest concept imaginable, and I'm baffled
that you cannot grasp it.
No, copyright law gives him no such expectation. This doesn't mean
that another law or agreement can't.
It is not a violation of copyright law to speed. Does this mean
speeding is legal?
Right, it's not an infringement of copyright. But it could violate
other laws or other rights. One has nothing to do with the other.
No, it does not. It just does not. Why can't you "fairly use" your
CD on my CD player?
After all, according to you, fair use is legal.
The answer is simple, fair use is not a violation of copyright. That
doesn't make it illegal, just not prohibited by copyright law.
This is just such an obvious bit of lunacy that I don't even know
where to start in picking it apart. You are correct that qua
copyright owner he has no right to prevent fair use because copyright
law gives him no such right. But a person is not just a "copyright
owner" just because he happens to owns a copyright. He can also own
other rights provided under other laws or contracts.
Copyright law provides no way for a copyright owner to own a
house. Does this mean I can't own a house just because I own a
copyright? No. I obtained my ownership of a house under other laws
and contracts.
What doesn't say that? Copyright law doesn't say a copyright owner
can own a house, does that mean he can't?
Why would it be unconscionable? I grant that some licenses could be
unconscionable. Some might not be properly disclosed or agreed to.
But it hardly follows that any post-sale license that limits fair use
must be unconscionable. That's bordering on the absurd.
No, you don't have that right.
It simply doesn't infringe
copyright law. Speeding doesn't infringe copyright law either. That
doesn't mean you have the right to speed.
You're very mad....
I'm Italian, I think that Vista will be a great success, like Xp...
Linux could be a great thing, but only because is a free-source. You
can't find many programs for Linux, you can't do with Linux all the
things you do with WINDOWS!
W Gates..W Windows!
David Schwartz wrote:
Not according to your theory that contracts are all about giving away your
rights!
You already have argued that individual rights granted in the Bill of
Rights can be contracted away, so why can't you contract away your 13th
Amendment rights?!
Really? What would I be trading my "fair use" rights for in a post-sale
shrink-wrap licence?
You are on drugs! You do not lose any freedom of association. You
exchange your labor, for money.
Except you can agree to sell yourself into slavery! ROFL!
You are funny! You can contract away you freedom to associate, but not
contract away yourself into slavery!
Sorry, your the one with the monopoly on insanity in this thread! Breaking
and Entering and Fair Use. Contracting away your association rights, but
you cannot contract yourself into slavery!
A car isn't a copyrighted material, but it is more like after you are sold
the car by the previous owner of the car, the car dealer, the manufacturer
hides in it's owners manual that you don't really own the car, you have
only licensed the car from them.
No. You weren't involved in the original sale.
And it doesn't even have to be the whole EULA, just a specific term of the
EULA.
True.
Not when the copyright owner has no legal expectation to know what I do,
with my copy of software in the privacy of my own home.
They don't have a right to know what I do with it in my home.
LOL! But once I purchase my copy of copyrighted material, I have no
obligations to the copyright owner.
It was paid in full. My property, the copy of copyrighted software is
mine. The copyright owner has no claim on my property.
David said:You can't use some formula or equation to get the result. That's
why we have judges, not computers that decide these things. If a
contract literally does shock the conscience, as slavery would, then
it is invalid.
You can contract away fundamental rights, providing the contract
is not unconscionable. It's bizarre to compare a contract that
prevents you from using a work to a contract that prevents you from
living your life.
If you don't get anything in exchange for the license, don't agree
to it.
By entering into an employment contract, you do lose some of your
freedom of association.
No, that you can't. That would truly be unconscionable. As I said,
"provided such trades are not truly unconscionable".
That's right. However, not all contracts that restrict freedom of
association are necessarily conscionable either. There could be some
contracts that restrict your freedom of association and do so in an
unconscionable manner.
The test for contract validity here is whether or not it's
unconscionable. This is not a simple test to apply, it is not whether
it restricts fundamental rights or not because lots of contracts do
that but are nevertheless valid. It is whether it is actually
shocking to the conscience, as a "slavery contract" would be.
How exactly is that insane? Contracting away freedom of association
rights in an employment contract that is otherwise reasonable is not
shocking to the conscience. Slavery is.
Actually, cars contain software that is copyrighted.
If the contract was hidden at the time of purchase, that could
well make it unconscionable. (Or alternatively, could allow you to
argue that the purchaser didn't really agree to it at the time of
sale, which could have the same affect.)
How would that change anything? You might buy a car from me and
then lease it back to me.
Again, qua copyright owner he has no such expectation. But qua
licenser, he can obtain that expectation by contract.
They do if they acquire that right by contract.
You are using the phrase "copyright owner" as if that was what he
actually was rather than a status he happens to have. Qua copyright
owner, you have no such obligations to him. But qua copyright owner,
he can't own property or go to the bank either.
There is also this thing called the entity with which you made the
contract. And you do have obligations to that entity (whether or not
they are also the copyright holder) because you voluntarily took on
those obligations when you entered into the contract.
The physical object is your property. The information on it is
not. That can be limited both by copyright law and by contract.
You can contract away fundamental rights, providing the contract is not
unconscionable. It's bizarre to compare a contract that prevents you from
using a work to a contract that prevents you from living your life.
On Fri, 9 Sep 2005 13:20:52 -0700, "David Schwartz"
Bologna. I think you need to read the Bill of Rights.
(I know this only applies to the U.S.)
Otherwise, there would not be an ACLU, eff and other types of
organizations
David said:It is already difficult to delete some viruses and malware. Being
unable to copy them (so that they can be analyzed on a clean machine
or sent to an expert) could definitely make things much harder.
David Schwartz wrote:
Do you actually do that often?
David said:It is already difficult to delete some viruses and malware. Being
unable to copy them (so that they can be analyzed on a clean machine
or sent to an expert) could definitely make things much harder.
Shenan said:Do you actually do that often?
David said:No. But you don't need the key until you have the lock. The lock
doesn't exist yet. I'm saying I don't want the lock if I can't have
the key. Once the lock is there, expect malware to use it. That's
when I'm going to want the key.
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