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back to article 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 …

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Anonymous Coward

If files are not property...

If files are not property, how come one can be in the first place sued for violation of intellectual property by "owner" of some movie/music/game/book/[insert your favorite here] that has been turned into a file? Because of violating intellectual non-property?

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Re: If files are not property...

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.

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Anonymous Coward

Re: If files are not property...

That child would not also magically produce a copy of itself, now would it? It would disappear from original owner when you'd take him/her and put it in the car of whoever...

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Stop

@NomNomNom -- Re: If files are not property...

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.)

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Re: @NomNomNom -- If files are not property...

You can't give someone a file anyway

*****

No, but you can give them the data within the file, or at least an exact bit for bit copy of that data which given information's incorporal form is the same thing.

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Holmes

Re: @NomNomNom -- If files are not property...

> 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!"

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Re: @NomNomNom -- If files are not property...

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).

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@Badvok

... 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.

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Unhappy

Re: @Badvok

Yeah, seems like it is pretty tough to come up with a workable physical analogy :(

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Re: If files are not property...

You are not sued for intellectual property violation. You are sued for copyright infringement. The term "intellectual property" does not exist in law, because copyright, patents etc are not property.

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Alert

So if files are not property of the owner does that mean that all US govt files are also not property of the US Govt? If so, doesn't that mean that they should all be freely accessible?

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Basically the answer is no

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Well

Well the answer according to the US government is almost certainly "no".

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Files are not the property of the owner unless it suits the US government to believe the opposite.

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Meh

Just what I was thinking, good news for Bradley Manning then.

I suspect the US gov has a different definition for those files though...

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If the US Gov files are not the property of the US Gov, then the US Gov, naturally, can not give them to you. Next!

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Thumb Up

A slight correction:

If the US Gov files are not the property of the US Gov, then the US Gov, naturally, can not give them to you, if indeed such files would, indeed, exist.

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Pirate

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.

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I thought the US Govt's answer was even simpler.

We have nuclear weapons and you don't.

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Black Helicopters

Welcome to Amerika

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.

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They are official secrets, not property. You almost certainly won't see theft on the charge sheet, but there are plenty of other things they can nail you for.

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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.

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Anonymous Coward

LICENSES

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.

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If

If files are not property, then presumably there is no owner. If there is no owner then surely noone can claim copyright. If there is no owner or copyright holder, then noone can mind if people take them!

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Re: If

no owner includes you. you can't take them.

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Re: If

no owner includes you. you can't take them.

But he has not asked to be the owner, he is assertaining that anyone can view them as there is no owner.

Hence a file created by someone/thing and them/it trying to stop it being viewed by anyone else thing is by definintion, not possible.

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Pirate

Yeah...

...what they all said above.

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Files are property if and only if you have a military to defend them.

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Military

In Cyberspace... we do.

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RMS
Pint

What the bloody hell.

This makes no sense whatsoever.

Beer because maybe it will if I drink enough of it.

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@RMS - Good!

"Beer because maybe it will if I drink enough of it."

I'll drink to that.

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Mushroom

Nothing new here...

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.

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@Jolyon Smith -- Re: Nothing new here...

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.

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Holmes

You buy a DVD you buy the disc and the right to play it under certain, stipulated conditions

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.

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Anonymous Coward

@Graham Wilson

Was "metaphysical" on your word of the day calendar today, or just in a book you recently read?

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Not true...

@ 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!

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Vic
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Re: You buy a DVD you buy the disc and the right to play it under certain, stipulated conditions

> 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.

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Mushroom

Re: You buy a DVD you buy the disc and the right to play it under certain, stipulated conditions

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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Mushroom

The Cloud Industry

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

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Black Helicopters

Re: The Cloud Industry

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.

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Anonymous Coward

Re: The Cloud Industry

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.

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Re: The Cloud Industry

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.

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Re: The Cloud Industry

Allow me to quote Kim Dotcom. "The war for the internet has begun".

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Re: The Cloud Industry

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.

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My files are mine. End of.

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@moiety

Then keep them on your own computer.

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Re: @moiety

"Then keep them on your own computer."

So by your logic you cease to own your car if you park it in the street.

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Re: @moiety

@PaulVD (I hope it's clearing up, by the way) In the main, I do keep my files on my computer (and other sundry local devices). My files in the cloud are also mine, however. You can tell they're mine because of the encryption.

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Vic
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Re: @moiety

> You can tell they're mine because of the encryption.

What the US Government has just said, though, is that they're not yours...

I really, really hope someone gets slapped for that missive.

Vic.

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