Files aren’t property, says US government While serial self-publicist Kim Dotcom was re-igniting the submarine cable debate in New Zealand, the Electronic Frontiers Foundation's (EFF's) case trying to recover files on behalf of a former Megaupload user Kyle Goodwin took a new twist. The EFF has been in court trying to gain access to the servers seized by the Feds last …
Assuming I understand the line of reasoning of the court (not always a good assumption!), what they are essentially saying is that while the file *itself* is not property, the *data* in the file certainly can contain intellectual properties such as moving pictures or music songs which have a defacto owner who is not you (ie someone else). In other words a key property of intellectual property is that it cannot be properly owned, per se, in the traditional sense.
Take an intellectual property which is small enough to fit within some file as an example. This does not necessarily infer legitimate ownership of the file unto it's owner (eg anyone), after-all anyone could obtain (and have! by both fair play and foul!) the same intellectual property in a different form.
So the rule is that if a file contains intellectual property, it is itself not property and so cannot be copied willy nilly (ie ever, except for fair use). For a real world analogy imagine putting someone else's child inside someone else's car. Does that give you the right to drive off with the car and sell both the car and the child to the highest bidder? No (although admittedly the analogy breaks down in the case of adoption). For the same reason you have no right to the files on the server.
For heaven's sake, this (the whole issue) is a stupid specious argument.
You can't give someone a file anyway--not unless you also give them the server! Ipso facto, by definition and the laws of physics, if someone gives you a file then it's always a copy as the magnetic domains that constitute the original file always remain 'locked' to the server where it was created.
In philosophy, copyright, IP, or whatever you want to call it, is a metaphysical concept. Translated into English that means 'above and beyond physics' [hardware].
This is sophistry!
(Nonetheless, the concept of copyright and sophistry being entangled together I find rather appealing.)
> No, but you can give them the data within the file
That would mean that there is something called "data" that can be within a "file" but is not, actually, the "file" in and of itself (i.e. the bytestream - one shall abstract from problems of how that bytestream is internally represented or even coded on the disk or in RAM or on tape).
That seems nonsensical.
You could go all marketing hog and say that within the "data" there is "knowledge" that is not, in and of itself, the "data". And within the "knowledge" there is "wisdom", which is not, in and of itself the "knowledge". All equally bizarre statements that have no grounding whatsoever.
Ultimately it comes to down to the similarity of these situations:
"I want access to the bytestream on the server in front of which you put armed goons. I put it there when access to the server was permitted. Give it to me!"
and
"I want access to the notebook in the locker in front of which you put armed goons. I put it there when access to the locker was permitted. Give it to me!"
Not sure your physical analogy is very good, I think it would be more like:
"I want access to the notebook in the locker in front of which you put armed goons. I put it there when I rented the locker in the past. Give it to me!"
I've never rented any self-storage, but I'd guess that when you stop paying for the storage, anything you leave in there can be disposed of by the storage company and you do not automatically have any rights to it anymore (though I'd also expect there to be some kind of grace period).
... when you stop paying for the storage, anything you leave in there can be disposed of by the storage company
I think this case is more like you paid for self-storage, and the self-storage company was closed down by the police for illegal activity involving some of the lockers. In those circumstances, the legitimate customers would expect to be able to collect their stuff.
The US Govt argument is very simple, and not so controversial.
They are arguing that you don't own files, you own the information in them. They are considered separate things. So Goodwin does indeed own the information contained on the seized Megaupload servers, but he doesn't own the files and doesn't have the right to access them. It's just too bad that Goodwin left the only files that contain the information in a single location.
It actually isn't a bad argument to make when products are so easily and cheaply duplicated because they are digital items.
You can copy and distribute as many copies of a file as you like because it has no ownership. You can have a hard drive full of mp3s, videos, games or eBooks, and share them with anyone else, so long as you don't access the information the file contains by opening it with a program that can access the copyrighted information. So a file of random data has no value in every sense of the word. Neither would a hypothetical file so heavily encrypted that it couldn't be opened. But the information in a file does, so it is the utilisation of the information that would be the illegal offence.
RIAA and other copyright enforcement groups should be thrilled at this approach. Why? Because then it isn't a single offence of having or distributing a file, it a much larger number of offences because the offence occurs every time you view, listen or read the information that the file contains. How many bazillions could they sue an individual for then?
By paying money when you receive the file, you aren't paying for the file, you are paying a licence fee to view the information in the file. A licence that isn't transferable, so by copying the file and sending it to someone else isn't illegal, just if that person then opens the file.
Of course, I would expect the US Govt argument might change if someone passed me a file taken from a CIA server that detailed all the dirty little details of CIA ops over the last 60 years. Then merely possessing such a file would be a rendition-worthy offence, regardless of if I had opened the file or not.
Believe me, the posession of a "file" by unauthorized persons of CIA origins on a persons system or physical body (a la thumb drive or ANY other form of storage) is a quick way to gain access to places like Gitmo or a discrete fatal administration of a measured amount of lead to the cranium. The US govt (most govts in fact) is famous for wanting things both ways. It's property and can be possessed when and if it suits them and its not property and can't be possessed when and if it suits them. I do love my country but disagree with some of their thought processes and administration of law.One must be sure to be of sound mind before dealing with our Feds because after dealing with them you will question your sanity.
It's an interesting take on things, and I think I would like it if that would be the final result. It is far more difficult to prove somebody actually opened a file and viewed the material, than it is to prove they simply have the file.
If that is the result, it will come down to license, and that is where it gets fun; Where a person must have a license to drive a car, practice medicine, or fly a plane, those laws are in the law code, and governed by licensing boards. However there is no such law when it comes to software, music, or video. I have never found a single law requiring that a license to use such data is required, it's nothing more than a buzzword that has been made popular and talked about so much that everybody believes it... But it's not real.
You would be lucky IF you even saw a charge sheet these days in matters of "National Security" in the US of A. Just an allegation of possession of a data file can and will bring on a bad-ass gorilla into your life. National secrets would be considered knowlege as they are not physical but still are the property of the US govt and posession of national secrets in any form by anyone or any organization other than the US govt will be frowned upon.
twas ever thus.
You buy a DVD you buy the disc and the right to play it under certain, stipulated conditions. You don't own the data on it.
You buy a book, you buy the dead tree it was printed on and the ink. You don't own the words.
If someone sells you access to storage then you are paying for access to storage, not the storage itself. If you want to buy storage then go to Walmart/PC World/Dick Smiths/etc and buy a hard disk.
If you put your data in the cloud, remember you don't own anything. But then only a fool wouldn't be keeping a backup (or indeed, the primary) on storage that they did own.
Then you can't refer to the data as IP/Intellectual Property. The concept of Intellectual <=> Property is a non-sequitur, 'Intellectual' being a metaphysical notion and 'Property' being stuff governed by the laws of physics.
Whilst you (the recipient of the book) mightn't own its words the question of whether the author fully owns them either is a moot one. Why? Take a tune for instance, once someone plays it then the composer ceases to have control over it as listeners cannot suddenly have no knowledge or perception of it. If they all suddenly lost their memories then there'd be no purpose to hearing the tune in the first place. Immediately having no memory of listening makes no sense of the event.
One can create a metaphysical concept [knowledge] but it's a nonsense to claim ownership of it in the sense that one owns a physical object.
@ Graham Wilson.
That is a flawed concept of IP. It is not knowledge that is owned, it is the information.
You are confusing knowledge and information, and there are plenty of pages on the Internet that will explain the difference between data, knowledge, and information.
Knowing a song isn't illegal.
In a broad sense Jolyon was right and the book analogy correct. You then took the argument and tried to discredit it by saying it was something else. It wasn't. Jolyon's words are the same as your "metaphysical concept". You just changed the words, and applied an incorrect concept (knowledge vs information).
@ Davidoff
What you said isn't incompatible with what Jolyon wrote. Jolyon said that you can use the data within the conditions of purchase. You said that you can transform the data from one form to another for use within the conditions of purchase. That is the same argument. You assumed Jolyon's "play" didn't include ripping it to MP4 in order to play it on a media device.
Jolyon basically got down-voted for saying XY. Graham was upvoted for saying x (because he was applying an incorrect concept) and Davidoff was upvoted for saying Y. Well done commentards!
Not in Europe where if you buy a DVD you own the DVD and the copy of the content on that DVD. Despite common belief there is no licensing (to the DVD owner) involved, and there also is no legal contract between the copyright holder and the buyer of that DVD (the only contract is between the buyer and the seller, i.e. the shop that sold the DVD to its customer).The same of course is true for books and even for most software sales (at least to consumers). Your right to do whatever you want to do with the DVD you bought is only limited by copyright (which prevents you from making and selling copies of it) and current laws preventing you from circumventing copy protection (to prevent you to make copies for yourself). However, electronic downloads are generally licensed and not sold, with all implications.
This is a very important difference to the US where almost everything is licensed and every sale of things like DVDs also create a legal contract between the buyer and the copyright holder.
> Despite common belief there is no licensing (to the DVD owner) involved,
That's not true.
CDPA88 adds a number of restrictions to what you can do with that DVD; your use of it is most definitely licenced by the copyright owner.
That's why you can't buy a DVD and use it for public performance, for example.
Vic.
Having been in a position - in Europe - where I was required to pay an additional license fee in order to obtain permission to screen DVD's I had bought for the public, as opposed to the "private use" conditions under which the DVD's were originally sold, I can tell you that the idea that there are no conditions on the sale of DVD's in Europe is factually incorrect, at least in the UK.
To be specific, in order to publicly screen a movie in the UK you either : pay a flat rate fee which authorises the screening of any bought or rented DVD, video etc, with the condition that the screening is not advertised in advance (you can advertise that you will be showing a film, but you cannot advertise WHICH film).
If you wish to publicise a specific movie then you have to acquire a specific exhibition copy, available only upon payment of an individual license fee for that movie and for that specific exhibition event (event = each screening). Once the events have taken place, the license copy has to be returned.
You seem to under the same delusion as others in previous threads, that the lack of viable (or visible) enforcement equates to the non-presence of conditions.
You presumably also believe - like some other ignoramuses out there - also that public lending libraries buy their books from their local corner book shop.
Sheesh.
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If something was to kill the cloud this would be it.
The government has basically said they can take any servers because someone has done something illegal using it and all the legit users have no rights to get their files back. Microsoft's Skydrive, Google Drive and iCloud have just started looking shaky
The government has basically said they can take any servers because someone has done something illegal using it and all the legit users have no rights to get their files back.
It's worse than that. The US gov has said that and that it applies to any server anywhere in the world accessed via a .com. .org, .net address or hosted by a government friendly to the US. A nice position to be in if you can get it. So no wonder they don't want the UN coming in and limiting that power (sorry, 'stealing the internet'). Most other governments would probably say the same thing but at least they would be limited to servers actually hosted or administered in their own countries.
What he said.
Working in a traditionally cautious industry, we've not swallowed the cloud kool-aid, and actually done some serious Information Security audits of the Patriot Act, which has killed the cloud for us. It is scary the number of companies that don't seem to appreciate it's scope and potential. Quite aside from the snooping powers it gives the federal agencies, is the fact that you could find your cloud host offline - permanently - because they had a server in a data centre the feds busted.
Just in case anyone feels safe because their cloud storage is outside the USA - if it is operated by a US company or a company with US operations, then the Patriot Act can be used to force handover of cloud content no matter where it is physically in the world.
Team Amerika, etc.
It won't kill the cloud, it will simply ensure that it is used appropriately.
Some day soon, the IT user community is going to wake up to the fact that "the cloud" is just the revisitation of the "mainframe", with shared use and paid for access, and with luck, there will be some grey haired old fruit in the IT department somewhere that will be able to explain why the industry and the world as a whole pretty much abandoned that idea and chose to own their infrastructure instead.
Then in another 15-20 years we will be back full circle with the NEXT iteration of the "the cloud".
Ho hum.
The car you park in the street is your car.
The file you put in the cloud is a COPY of your file.
Seriously, if you are going to use analogies, at least TRY to come up with relevant ones. All these analogies do is demonstrate that the people making them don't have the most basic grasp on the concepts involved, so it is little wonder that they don't "get" it.
Well, there's some clear lessons to be learned from all this...primarily don't trust the cloud and don't trust the US government. Which I didn't anyway.
Also that ownership of files and access to the server are two entirely different things; which is not an issue that I'd considered in depth before, primarily due to the aforementioned cloud mistrust. Pete H got it right. My cloud mistrust was more based on various online services shutting down and dubious hosting companies...the US govt is just another reason to add to the list.
I wouldn't take this as any sort of legal precedent though...the conduct of the US has been thoroughly illegal since day 1. This is just an effort to trim costs and/or pass costs onto the (legal) file owners (I seriously doubt that the illegal file owners will be stepping up voluntarily). The feds should take responsibility for their actions and return the files, frankly.
Meantime, take the warning and back the files up locally; and in at least 2 places in the cloud; in different countries...ideally 2 countries at odds with each other who won't be too quick to cooperate.
> What the US Government has just said, though, is that they're not yours...
I think all that has actually been said is that "They may well be yours mate, but you do not have not a legal right to access to machines on which they are held, because the machines are not yours. You had backups right?"
Let's not extrapolate the next 20 years of copyright law and digital ownership on one quote ...
They're not saying they files aren't property, but that Goodwin has no interest in it, as per the Megaupload T&Cs, and on account of the files containing other people's copyrighted material. Moreover, according to the first footnote in the filing, the government holds "images of certain servers the government seized as evidence" which seems to mean that rather than physically taking the servers, they just copied the content. Passing any of that content back to people who don't own the copyright and don't have a property interest would amount to piracy, so it's hardly surprising the government is reluctant to stumble into that trap.
This may, indeed, have a 'chilling' effect on the cloud. But it's about time something did. The cloud is all very nice, but nobody in their right mind would entrust mission-critical data to a pan-jurisdictional coagulation of agreements that are, at best, opaque to the end user. The cloud is not an adequate replacement for proper, physical backups, or an acceptable substitute for internal IT systems or skills. While people think it is, we need annoying stories like this to carry on beating the sanity drum.
The EFF are very lovely people, but they really shouldn't be encouraging people to send personal data, or anything of any sensitivity, cloudwards. Not because we don't have a perfectly defendable right to do so if we wish, but because it's bloody stupid.
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The real problem here is the nomenclature itself.
People insist on using this awful catch-all term of Intellectual Property. In reality, it is neither property in the physical sense and in reality, no-one actually owns it.
The government gives certain legal rights to the creator but that doesn't make it their property.
"Owning" knowledge is a nonsense. You can't own knowledge, not in any way that makes sense.
The whole confusing situation is compounded by the idiotic use of the term "theft" to describe copyright violation.
So, you say you cannot own knowledge,
Im going to disagree with you.
I certainly own knowledge,in the way that I have know how that no one else has,
until I am stupid enough to put it in the public domain.
Any Co. or organisation that develops technology that new ,that does something different to what has been done before, has knowledge they own.
Bit of a can of worms really.
> So, you say you cannot own knowledge,
So what does it mean to "own" knowledge? I use the word knowledge in a loose sense for all that which is intellectual rather than physical.
What you are talking about is a secret. You think you own it because you have a secret. You certainly control it since no-one else knows of its existence. However, if someone else creates that secret independently, then you no longer have control over it.
Property rights exist to avoid conflict between two or more persons with respect to the usage of something that naturally can only be effectively used by one person. There are also other complicating aspects to this involving such things as privacy (like privacy in your own home). This covers the physical such as land, buildings, materials. The "value" of the property is also judged by it's scarcity and demand.
Information has no cost or effort associated with dissemination so it has no scarcity. Because of the lack of scarcity, there is no conflict issue with multiple users. It bears practically no association with the physical world at all. It is why we have laws that attempt to give it a physical flavour (like copyright) and why those laws are doomed to fail since they don't reflect the reality.
I'm not quire sure why there are problems with the concepts of "knowledge" and "information" being related, but different things. They are not the same, and they are treated differently in the law, as they should be.
You can't use them interchangeably, even though they are often loosely thrown about in general use.
But in this thread were are dealing with specific concepts that require us to differentiate between data, information and knowledge and be careful with use. Much of the argument has been about this confusion.
> You can't use them interchangeably, even though they are often loosely thrown about in general use.
The attributes which are common between them are their non-physical nature. For the sake of this debate, they are the same thing in as much as they are both non-physical and the debate is about whether or not anything non-physical can be said to be "property".
You could also say that a Ford car and a Vauxhall car are not the same thing, but they are both cars and a discussion about cars in general can presume their equivalence.
"The government gives certain legal rights to the creator but that doesn't make it their property"
The government doesn't actually own it, so who are they to do such a thing? Additionally, no power was granted to the government to take any property except by due process of law, and since any additional rights are reserved to the states and to the people under the 10th Amendment, the government is simply a thief in the night.
Assuming I understand the arguments correctly, that is.
Any files are the property of the owner of the media in which they reside. What the user of cloud storage has is a contract allowing access to the files stored on the provider's server. This seems the only logical way to view file ownership.
That in no way affects the issue of intellectual property rights. The fact that the provider owns the file does not take away from the originator his rights under copyright law, nor does it give the provider any rights of distribution.
The knock-on effect, as implied in the article, is that if the files concerned were copies of copyrighted works, the copyright holders have no rights of ownership of the files either.
And if I've got that all wrong, then fuck-it : I wouldn't put anything that I care about on the cloud anyway.
Firstly you have to determine what does it mean in legal terms to be the owner of information, has the concept ever been clearly defined? Certainly it is well established as to what it means to be the owner of the copyright of the information, but pure ownership could infer a broader set of rights over that information.
In many situations it cannot be an absolute set of rights but copies and various other forms of the information must exist outside the owners immediate control to allow them to make good use of their information. It seems that the immediate question at hand is whether being the copyright owner for information allows you to demand that copies of that information be returned to you. If I sell a CD I may still own the copyright, it seems logical that having sold the CD and presumable a license to use it's contents for certain things, probably other than public performance, I will have given up some of my proprietorial rights over that specific copy of information.
It seems that here the government is seeking to exert that just because you own the intellectual property rights relating to a specific piece of information that does not allow you to demand its return, they are saying that is a right that does not exist today. Presumably as a copyright holder you could prevent them from using that data in any meaningful way beyond the confines of the court case but there is no existing legal right to enable you to demand the return of that information.
Try telling the powers that be that they have no rights to the information/knowledge on your PC, notebook etc. Time and time again authorities "seize" the intelectual property of private citizens and if its encrypted, demand the key to access that "information/knowledge" or be punished. Hmmm an encryption key is knowledge and knowledge can't be owned.
We are going through an "angels on the head of a pin" discussions and in the end its the biggest baddest gorilla who will prevail and all this discussion is moot. One's rights exist as long as one can protect such rights. In this case the guy has no way to protect his rights because he can't protect what he doesn't have possession of. The Cloud Computing/storage concept is on its death bed due to this notion. HP, Dell, IBM et al- are you listening???
> it’s an interpretation of intellectual property rights that would also be unwelcome in Hollywood.<
Incorrect as Hollywood are the de facto government in America (and attempting global seizure), and I believe their motto is 'Do as we say, not as we do.'
They can afford to do this as they've been operating at a loss for the last 100 years or so (cf. Hollywood accounting).
This may be the ramblings of a delusional Mind.
http://churchofcriticalthinking.org/
I'm confused. Say you were to pay for a storage locker in the physical world and that the operator got into trouble for allowing others to store illegal items in their lockers. As I understand it the US gov is saying it would have a right to seize not only the storage lockers but all property held within them by the storage operator irrespective of to whom each item belonged to or whether it was a perfectly legal item. I can't believe that would be the case in the real world and I believe there should be no difference in the cloud. Just because I'm paying someone for storage in an electronic medium should not mean that I lose the legal ownership of that file. If the terms and conditions of the cloud storage provider state that I do lose ownership, I can see an urgent need to amend those conditions in light of this.
Legally, data is not property. It is a different area of law. You can't legally disclose secrets because they are protected from disclosure. You can't legally sell a copy of a dvd because the content is subject to a copyright.
Come on people, property is easy to understand and explain, but does not apply to non-tangible things. You do a dis-service to your audience when you confuse property rights with creators' monopolies and official secrets.
Excellent. Continue to stir fear into the hearts of potential foreign cloud users; that way, when they list places to consider off-shoring protected data, the US will be competing with Nigeria for the bottom ranking.
When NHS needs to know that it 'owns' the data it might put on a US cloud, it's important that they know it is no longer theirs.
Since files aren't anyone's property, they obviously can't be stolen. So what's all the fuss about?
Although it is odd that a video of people being illegally machine-gunned should belong exclusively and entirely to the person who shot the video, with the victims, their families and friends, and even the perpetrators having no claim at all..
Somehow, you'd think the legal authorities in the country where the shooting took place would have the right to confiscate the video as evidence. Rather than the authorities in the country where the perpetrators came from.
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