Originally posted by Feyshtey
I'll need to research this sometime when I have the time to, to see what the court's actual authority is, but here are my thoughts on the matter:
The footnote to which you're refering is pretty clear. A lower court should not have the ability to rewrite law in order to determine the outcome of a case. A judge in the 9th district is not a lawmaker. His duty is to UPHOLD the law, not write it. His judgments and reasoning behind them can help set a precedent for interpretation. But he can't just decide that a law is wrong and not uphold it. That would undermine the lawmaking process of the country. The judge also did not mention precedent. He said -law-. This is not a matter of interpretation, it is a matter of black and white legislation.
Except that they must be talking about precedent in parts of the footnote - "established 9th circuit law" pretty clearly says it's really talking about precedent. No circuit has any laws unto itself - laws are either Federal, State, or Municipal.
Originally posted by Feyshtey
Copyright law stipulates that you are not allowed to copy anything unless specifically authorized to do so by the copyright holder. Fair use is the only exception, and those cases must involved education, discussion of, parody on, or other use that does not negatively impact the ability of the copyright holder to make money on that property. Copyright law states that if your copies negatively impact the commercial value of a property you are in violation of Copyright law (not DMCA law). Additionaly, he DMCA states that you may not make copies of software except in order to make that software function as it was intended to function. A very clear, important and -fair- distinction. If the software itself creates copies in RAM, no foul, no argument.
I'd forgotten (prior to reading the brief and some of your replies) that Copyright covered some more vague areas such as negative impact on profitability and vicarious infringement. MDY is definitely guilty of vicarious infringement if you allow that WoW is licensed and not purchased.
Glider probably actually increases income for Blizzard (directly by attracting a small number of players who wouldn't otherwise play and indirectly by causing Glider users to have to rebuy WoW once they are banned) but it definitely interferes with Blizzard's control of their online gameplay (I would expect this to fall under contract law due to EULA/TOU but it's likely again under Copyright if you accept that WoW is licensed (and not purchased)).
Originally posted by Feyshtey
If you force a copy to RAM, because you are trying to circumvent the normal function of that software, you fail for three reasons:
1) You have produced a copy that is not explicitely allowed by the copyright holder. The law is clear. If the author/owner didn't say it was ok to make a copy, it's not. Period. (barring Fair Use)
2) You have allowed a copy of the software that directly and negatively impacts the gameplay experience of other people from whom Blizzard recieves monthly income based on their copyrighted material. You have, in effect, produced a situation where customer's of Blizzard can (and verfiably have) quit specifically because of botters. The fact that the copy of the software is specifically in RAM is only marginally relevant. If you were able to copy the software to another computer in order to allow Glider to function the result would be indentical, and the ruling would be as well. The end result is that the commercial value of the property is reduced because fewer people are paying Blizzard because of the copy.
3) You have produced a copy in order to make the software run in a way it was never intended to run. A clear violation of the DMCA.
All of these factors contribute to both the Glider case and the one refered to on Page6 Line6 for purposes of copying to RAM. If nothing else, the DMCA covers this clearly and undeniably, and the reason behind it is perfectly legitimate and reasonable. It should , in my opinion, be law and be upheld. Can you state a specific reason why it should not?
- Except that Glider facilitates a Fair Use copy of the user (except that aspect of Fair Use is a violation of the DMCA). A copy in RAM for personal use is perfectly valid under Fair Use.
- Probably valid. I am not a lawyer and don't pretend to be able to interpret some portions of Copyright (or most other laws).
- Definitely a violation of the DMCA (allowed under Copyright but irrelevant).
Originally posted by Feyshtey
Correct. But Glider does not apply in any manner to Fair Use.
Fair Use is only for purposes of education, discussion parody or satire, or purposes that do not impact the commercial value of the property. Glider modifies the gameplay experience of players, players have (verifiably) quit because their gameplay experience was diminished, Blizzard earns less money on it's product, ergo the commercial value of the product is diminished. That means, A) it is not fair use, and B) it is copyright infringement.
However, speaking strictly of Copyright (not DMCA), a copy in RAM is a valid Fair Use so Glider simply assists users in making a Fair Use copy. If users have verifiably quit due to botters, that definitely gets into interference with profits of the rights holder (and the law doesn't care if there are other players who play because of Glider so that aspect is irrelevant).
Originally posted by Feyshtey
I think you're actually refering to Page12, line7. Regardless, the court never even suggested that there could be a potential flaw in either the law or the MAI decision. It is clarifying that it doesn't really matter if the -fact- is that the copy was to RAM or not in the MAI case and that this case is 100% equivelant. The -fact- is that there was a copy, and that the copy is infringing, which is a matter of -law-.
You're right. I was referring to page 12, line 7. The passage could be read with either interpretation. I would argue that MAI fails factual and common sense tests as a copy into RAM is perfectly valid Fair Use under Copyright (but often violates DMCA).
Originally posted by Feyshtey
I'm not going to address the court case you think you remember something about that might have relevence. But I do find it pretty damn funny that you have chosen to skip all the DMCA stuff because it's 'probably valid' when the DMCA stuff is the stuff that you threw your arms up about to begin with.
I don't blame you as I wasn't able to find it and I'm the one that remembers reading it in the past.
Nope, my argument has always been against Copyright applying in this case. Here is an excerpt from my original message...
Originally posted by wilcoxon
This is a horrible, horrible decision. Copying a program to RAM on the computer where it is legally installed, should NOT be a copyright infringement (see many many analysis of why back around the time Blizzard filed the suit). Glider may (or may not - not sure exactly how it works) have violated the DMCA (the worst piece of copyright legislation ever passed) but it did not violate copyright.
Reading that now, I see that I was writing only half-thinking as I should have mentioned Fair Use (for copying to RAM) and should have said Glider probably violated the DMCA.
I detest the DMCA but was not going to argue that it did not apply in this case as I'm pretty sure MDY did violate the DMCA.
Originally posted by Feyshtey
You continue to state that the logic is flawed, and that the DMCA is bad, and that it's all going to screw us in the end. But you have given not a single logical statement or defense of why you believe so. You have cited no situation in which the arguments are just not right that can't be clearly and undeniably refuted, and you haven't even come up with a reason why the DMCA is wrong.
Just a few examples of why the DMCA is wrong...
- Takedown notice provisions of the DMCA mean that sites basically have to remove content prior to any proof that the material is infringing. This has been massively abused (mostly by RIAA and MPAA) to remove tons of content (mostly song/video excerpts on YouTube and other video sites).
- Make it illegal to bypass "security measures" to exercise Fair Use (eg copying protected CDs/DVDs for personal use). This guts a large portion of Fair Use and is technically insane (pretty much anything is considered a "security measure" regardless of actual security (CSS used on DVDs is a joke and there has been discussion that Rot-13 would probably be covered by the DMCA)).
- Security researchers have been gagged from presenting valid research at conferences (often having to cancel appearances) because corporations don't want anyone to know there was ever a flaw in their program/protocol. In every case I've heard of, the researchers contacted the owner long before presentation so that the flaw could be fixed prior to any public disclosure. EFF and other groups have fought these many many times (and won most of them eventually).
- Some clean room engineering techniques are illegal under the DMCA (mostly due to the bypass of "security measures") preventing companies from creating competition for the owner.
- Modifying a "secure" data set for a program is illegal even if it is for personal use. Several filtering companies sued several schools under the DMCA for modifying the sites filtered by their software (eg valid sites were marked as porn and the companies either would not correct it or were very slow so the schools corrected it themselves).
- If a software company goes out of business and their software was "secure", all users are out-of-luck as it is illegal to modify or update the software. There was a specific instance of this happening that I can't recall (I believe the rights owner sued someone over it even though the company was no longer in existence and could not do anything useful itself). I know this was considered in the last round of DMCA exemptions but don't think it made it in (though it may have).
- I know there are other abuses but that's all I can think of off the top of my head.
Can you name one thing good in the DMCA?
Originally posted by Feyshtey
What EXACTLY is it that you think the DMCA or Copyright law for that matter can do that it should not be able to do? I'm tired of hearing the doomsday rhetoric without hearing a logical reason for why it could be abused. Change my mind. Challenge my thinking. But dont just scream about how this is all so horrible without explaining how.
Copyright itself is a great idea. The only major problem is the multiple extensions in recent years to the duration of Copyright (often prompted by Disney not wanting to give up Mickey Mouse and other characters and willing to pay lots for it (lobbyists, bribes (err...campaign contributions), etc)).
I can't think of a single good thing about the DMCA. There may be some aspect of it that is beneficial but it is vastly overshadowed by the truly horrid parts.
Back to Blizzard vs MDY...
As I've said all along, I don't have any issues with MDY losing - I just don't think it should be under Copyright (DMCA and/or contract (EULA/TOU) but not Copyright). However, Copyright may be valid for some claims (interference with profits of the rights holder).
I have two major issues with the brief which I really hope are overturned (but don't expect to be until there is a better case to appeal on):
- A copy of any software in RAM (or anywhere else for personal use) should be valid Fair Use. For many programs, this would be a violation of the DMCA (but that's a separate issue).
- WoW (and 99.99% of all software) is purchased and not licensed. The conditions expressed in Wall Data are appallingly broad and contradict earlier precedent (Wise and Vernor).
