7 ms·

The audience isn't obligated to listen, but it's also not entitled to use content in a manner that the copyright holder doesn't want them to either. If a copyr

by bduerst 10y ago

The audience isn't obligated to listen, but it's also not entitled to use content in a manner that the copyright holder doesn't want them to either. If a copyright holder (like Forbes) stipulates that their content is paid for using ads and they won't let you consume it without looking at the ads, then you're neither obligated to or entitled to consume it.

JoshTriplett 10y ago
Website terms of service are not law, no matter how people have abused the CFAA. You can't control how a browser displays content, whether it does so with a browser, screen reader, or musical interpretive dance. I look forward to seeing that battle play out.
- CalRobert 10y ago
  Not to mention this basically makes cURL illegal..
  - Filligree 10y ago
    cURL. That's that hacking tool, right? I think I saw it in the Matrix. It's used by nmap.
- bduerst 10y ago
  Lack of means of enforcement doesn't void a copyright. Forbes in this case seems to be able to control it to a certain degree anyways.
- daxelrod 10y ago
  You may be interested in MDY Industries, LLC v. Blizzard Entertainment, Inc.[1] (the WoW Glider case). World of Warcraft's Terms of Use prohibited bots. The court found that users who used the Glider bot with WoW were violating the Terms of Use and therefore were not licensed to use WoW in that way. Because users running WoW must copy its content from their hard drives to RAM to run it, the court found that using Glider with WoW constituted copyright infringement. [1]https://en.wikipedia.org/wiki/MDY_Industries,_LLC_v._Blizzard_Entertainment,_Inc https://en.wikipedia.org/wiki/MDY_Industries,_LLC_v._Blizzar....
  - btown 10y ago
    HN strips trailing periods from URLs; add a period at the end, or click the Search link at the page the above links to, to see the case. The raw opinion is here: https://docs.justia.com/cases/federal/appellate-courts/ca9/09-15932/920101214/ https://docs.justia.com/cases/federal/appellate-courts/ca9/0... It's a very interesting finding. The appeals court actually did reverse parts of the decision, including the hard-drive-to-RAM argument, ending up in favor of MDY for many of the claims! But the devil is in the details. Even though MDY wasn't found to be infringing copyright by breaking the covenants of the license agreement against botting (simply copying static code to RAM was not considered sufficient "reproduction" to be infringement)... it was found to violate the DMCA because it was circumventing Blizzard's Warden framework designed to protect access to dynamic server-side materials. MDY therefore had the lower court's "permanent injunction" against doing so upheld. So if you were to create an ad-blocker detector that detected all current ad-blockers, and required that detector to digitally sign a request for dynamic content, but then someone circumvented that detection by subsequently creating an ad blocker that wasn't detected, would it fall under this precedent and violate the DMCA? And there's also fuzziness around whether MDY was tortiously interfering ( https://en.wikipedia.org/wiki/Tortious_interference https://en.wikipedia.org/wiki/Tortious_interference ) with Blizzard's contracts with its subscribers. In this case, it wasn't, because MDY arguably was behaving as a good steward here. For instance, the opinion cites how MDY "enhances some players' experience of the game, including players who might not otherwise play WoW at all." One could see an argument that an ad blocker would encourage more visitors... but if there's no other revenue source other than ads, does the pendulum swing in the opposite direction in favor of the content creator? Very difficult to tell. Just because Adblock Plus avoided a lawsuit in Germany, and (as the research paper from the OP http://randomwalker.info/publications/ad-blocking-framework-techniques.pdf http://randomwalker.info/publications/ad-blocking-framework-... points out) most ad embeddings today are "trivial" overlays that wouldn't be considered DRM per the DMCA, that doesn't mean that advertisers won't evolve another piece of ammunition in this war. (I am not a lawyer; the above is not legal advice.)
    - gavinpc 10y ago
      > I am not a lawyer You might have missed your calling.
- Svexark 10y ago
  It's a felony to access a computer system without authorization, access a computer system to obtain unauthorized computer services, degrade or disrupt a computer system, take data without authorization, or to use data obtained through misuse of a computer system. The law is so vague everyone technically commits a felony every time they load a web page. Did ycombinator give you explicit permission to use this server? No, they did not. If they want you punished for posting this and they can find a friendly district attorney, you're screwed. I'm old enough to remember when the conventional wisdom was that sharing music on the internet wasn't stealing because nobody was being deprived of physical media. Give Google a few years to lobby and create PSAs and people will being going to jail for creating ad blockers.
  - zdragnar 10y ago
    The law isn't nearly so cut and dry as that. After all, if something operates as a business, and also has a brick-and-mortar storefront, then it is also liable to accessibility guidelines per the ADA (see the lawsuit against Target a few years back). As such, publicly accessible websites are, in effect, no less common areas than storefronts. Of course, there's a way around this; websites could establish 'membership requirements' such as using a browser that does not have an ad blocker enabled; the content for most of the website would require being a member and volunteering to abide by membership rules to access. Violate those rules, and you would risk losing your membership and access to the content, though I seriously doubt grounds could be established for a lawsuit over it.
  - ajdlinux 10y ago
    > Did ycombinator give you explicit permission to use this server? No, they did not. If they want you punished for posting this and they can find a friendly district attorney, you're screwed. Did your local supermarket give you explicit permission to walk on to their premises to go shopping? No - they gave you implied licence to enter their premises which is made obvious by the circumstances. Similarly, a court would almost certainly find that having a web server which is obviously intended to be publicly accessible would result in an implied licence for use of copyrighted material on the site for typical, expected usage of said site.
oh_sigh 10y ago
Is it within a musicians rights as a copyright holder of their own work, that you can't play their music on <$1,000 speakers?
- brianwawok 10y ago
  If a musician clearly put that on the package of a CD, why not? I dont have a constitutional right to buy an artist's CD.
  - narrowrail 10y ago
    Instead of making shit up about what you think makes sense, please familiarize yourself: https://en.wikipedia.org/wiki/First-sale_doctrine https://en.wikipedia.org/wiki/First-sale_doctrine
    - johncolanduoni 10y ago
      In that same article you can see first-sale doctrine gets murky when the distribution is digital. And it pretty much completely falls apart for subscription based services.
      - narrowrail 10y ago
        I don't think it gets murky. They can't "sell" something but actually mean rent it. That is false advertising, and most people aren't yet accustomed to thinking in this way (i.e. playforsure). A sale is a sale and if people want to redefine it to make what amounts to a highly conditional sale (at best), we should just call that rent.
        johncolanduoni 10y ago
        > The first-sale doctrine does not neatly fit transfers of copies of digital works because an actual transfer does not actually happen -- instead, the recipient receives a new copy of the work while, at the same time, the sender has the original copy (unless that copy is deleted, either automatically or manually). For example, this exact issue played out in Capitol Records, LLC v. ReDigi Inc., a case involving online marketplace for pre-owned digital music. > E-books have the same issue. Because the first sale doctrine does not apply to electronic books, libraries cannot freely lend e-books indefinitely after purchase. Instead, electronic book publishers came up with business models to sell the subscriptions to the license of the text. This results in e-book publishers placing restrictions on the number of times an e-book can circulate and/or the amount of time a book is within a collection before a library’s license expires, then the book no longer belongs to them. Legally, it does get murky in the U.S. That has nothing to do with whether it's right or not, but it does mean it's not "making shit up about what you think makes sense". It's the actual precedent described in the very article you linked.
kevin_thibedeau 10y ago
Then take away Forbes' safe harbor protection for hacking my computer with unauthorized exploits.
bigbugbag 10y ago
Ever heard of the hyperlink and communication to the public of copyrighted work conundrum that has been solved by a decision of the European Court of Justice ? This decision means that once a work is posted on a website where it is freely accessible to the public, the author cannot control how internet users subsequently access this work. For example, a website owner will not be able to use copyright law to ensure that users who wish to access a certain piece of work would have to go via their homepage, where most of their advertising space may be located. So good luck to forbes with this argument.

by bduerst 10y ago

JoshTriplett 10y ago

Website terms of service are not law, no matter how people have abused the CFAA. You can't control how a browser displays content, whether it does so with a browser, screen reader, or musical interpretive dance. I look forward to seeing that battle play out.

CalRobert 10y ago
Not to mention this basically makes cURL illegal..
- Filligree 10y ago
  cURL. That's that hacking tool, right? I think I saw it in the Matrix. It's used by nmap.
bduerst 10y ago
Lack of means of enforcement doesn't void a copyright. Forbes in this case seems to be able to control it to a certain degree anyways.
daxelrod 10y ago
You may be interested in MDY Industries, LLC v. Blizzard Entertainment, Inc.[1] (the WoW Glider case). World of Warcraft's Terms of Use prohibited bots. The court found that users who used the Glider bot with WoW were violating the Terms of Use and therefore were not licensed to use WoW in that way. Because users running WoW must copy its content from their hard drives to RAM to run it, the court found that using Glider with WoW constituted copyright infringement. [1]https://en.wikipedia.org/wiki/MDY_Industries,_LLC_v._Blizzard_Entertainment,_Inc https://en.wikipedia.org/wiki/MDY_Industries,_LLC_v._Blizzar....
- btown 10y ago
  HN strips trailing periods from URLs; add a period at the end, or click the Search link at the page the above links to, to see the case. The raw opinion is here: https://docs.justia.com/cases/federal/appellate-courts/ca9/09-15932/920101214/ https://docs.justia.com/cases/federal/appellate-courts/ca9/0... It's a very interesting finding. The appeals court actually did reverse parts of the decision, including the hard-drive-to-RAM argument, ending up in favor of MDY for many of the claims! But the devil is in the details. Even though MDY wasn't found to be infringing copyright by breaking the covenants of the license agreement against botting (simply copying static code to RAM was not considered sufficient "reproduction" to be infringement)... it was found to violate the DMCA because it was circumventing Blizzard's Warden framework designed to protect access to dynamic server-side materials. MDY therefore had the lower court's "permanent injunction" against doing so upheld. So if you were to create an ad-blocker detector that detected all current ad-blockers, and required that detector to digitally sign a request for dynamic content, but then someone circumvented that detection by subsequently creating an ad blocker that wasn't detected, would it fall under this precedent and violate the DMCA? And there's also fuzziness around whether MDY was tortiously interfering ( https://en.wikipedia.org/wiki/Tortious_interference https://en.wikipedia.org/wiki/Tortious_interference ) with Blizzard's contracts with its subscribers. In this case, it wasn't, because MDY arguably was behaving as a good steward here. For instance, the opinion cites how MDY "enhances some players' experience of the game, including players who might not otherwise play WoW at all." One could see an argument that an ad blocker would encourage more visitors... but if there's no other revenue source other than ads, does the pendulum swing in the opposite direction in favor of the content creator? Very difficult to tell. Just because Adblock Plus avoided a lawsuit in Germany, and (as the research paper from the OP http://randomwalker.info/publications/ad-blocking-framework-techniques.pdf http://randomwalker.info/publications/ad-blocking-framework-... points out) most ad embeddings today are "trivial" overlays that wouldn't be considered DRM per the DMCA, that doesn't mean that advertisers won't evolve another piece of ammunition in this war. (I am not a lawyer; the above is not legal advice.)
  - gavinpc 10y ago
    > I am not a lawyer You might have missed your calling.
Svexark 10y ago
It's a felony to access a computer system without authorization, access a computer system to obtain unauthorized computer services, degrade or disrupt a computer system, take data without authorization, or to use data obtained through misuse of a computer system. The law is so vague everyone technically commits a felony every time they load a web page. Did ycombinator give you explicit permission to use this server? No, they did not. If they want you punished for posting this and they can find a friendly district attorney, you're screwed. I'm old enough to remember when the conventional wisdom was that sharing music on the internet wasn't stealing because nobody was being deprived of physical media. Give Google a few years to lobby and create PSAs and people will being going to jail for creating ad blockers.
- zdragnar 10y ago
  The law isn't nearly so cut and dry as that. After all, if something operates as a business, and also has a brick-and-mortar storefront, then it is also liable to accessibility guidelines per the ADA (see the lawsuit against Target a few years back). As such, publicly accessible websites are, in effect, no less common areas than storefronts. Of course, there's a way around this; websites could establish 'membership requirements' such as using a browser that does not have an ad blocker enabled; the content for most of the website would require being a member and volunteering to abide by membership rules to access. Violate those rules, and you would risk losing your membership and access to the content, though I seriously doubt grounds could be established for a lawsuit over it.
- ajdlinux 10y ago
  > Did ycombinator give you explicit permission to use this server? No, they did not. If they want you punished for posting this and they can find a friendly district attorney, you're screwed. Did your local supermarket give you explicit permission to walk on to their premises to go shopping? No - they gave you implied licence to enter their premises which is made obvious by the circumstances. Similarly, a court would almost certainly find that having a web server which is obviously intended to be publicly accessible would result in an implied licence for use of copyrighted material on the site for typical, expected usage of said site.

oh_sigh 10y ago

Is it within a musicians rights as a copyright holder of their own work, that you can't play their music on <$1,000 speakers?

brianwawok 10y ago
If a musician clearly put that on the package of a CD, why not? I dont have a constitutional right to buy an artist's CD.
- narrowrail 10y ago
  Instead of making shit up about what you think makes sense, please familiarize yourself: https://en.wikipedia.org/wiki/First-sale_doctrine https://en.wikipedia.org/wiki/First-sale_doctrine
  - johncolanduoni 10y ago
    In that same article you can see first-sale doctrine gets murky when the distribution is digital. And it pretty much completely falls apart for subscription based services.
    - narrowrail 10y ago
      I don't think it gets murky. They can't "sell" something but actually mean rent it. That is false advertising, and most people aren't yet accustomed to thinking in this way (i.e. playforsure). A sale is a sale and if people want to redefine it to make what amounts to a highly conditional sale (at best), we should just call that rent.
      - johncolanduoni 10y ago
        > The first-sale doctrine does not neatly fit transfers of copies of digital works because an actual transfer does not actually happen -- instead, the recipient receives a new copy of the work while, at the same time, the sender has the original copy (unless that copy is deleted, either automatically or manually). For example, this exact issue played out in Capitol Records, LLC v. ReDigi Inc., a case involving online marketplace for pre-owned digital music. > E-books have the same issue. Because the first sale doctrine does not apply to electronic books, libraries cannot freely lend e-books indefinitely after purchase. Instead, electronic book publishers came up with business models to sell the subscriptions to the license of the text. This results in e-book publishers placing restrictions on the number of times an e-book can circulate and/or the amount of time a book is within a collection before a library’s license expires, then the book no longer belongs to them. Legally, it does get murky in the U.S. That has nothing to do with whether it's right or not, but it does mean it's not "making shit up about what you think makes sense". It's the actual precedent described in the very article you linked.

kevin_thibedeau 10y ago

Then take away Forbes' safe harbor protection for hacking my computer with unauthorized exploits.

bigbugbag 10y ago

Ever heard of the hyperlink and communication to the public of copyrighted work conundrum that has been solved by a decision of the European Court of Justice ? This decision means that once a work is posted on a website where it is freely accessible to the public, the author cannot control how internet users subsequently access this work. For example, a website owner will not be able to use copyright law to ensure that users who wish to access a certain piece of work would have to go via their homepage, where most of their advertising space may be located. So good luck to forbes with this argument.