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I think you are missing something... what happens at work isn't decided by policy, it's defined by Title 17 S201 of the law:

(b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

A very important requirement is the work has to have been prepared for them, meaning on their behalf, and intended to be used by them.

And, btw, there is no payment required. Otherwise unpaid interns and volunteers would keep their copyrights, etc. when they do work that is *uncommissioned and unpaid* for any entity (commercial or otherwise).

Well, there is no such thing as an 'unpaid intern'.. the practice of hiring someone but not paying is not legal under the labor laws.

Volunteers might or might not be considered employees for purposes of the copyright act, it depends on the circumstances, CCNV v. Reid 1989. The volunteer is an employee if the organization has the right to control the manner and the means by which the work is created.

Otherwise, the question of the status of copyright work created by volunteers is unsettled, and would be up to the courts to reach a decision.

Work done by a student does not fit in here. Because (a) It is not prepared for the purpose of use by the university, and (b) The student is not an employee, since the university doesn't have a right to determine the conditions time/place under which they created the work, and (c) the student is not an employee legally.

And again, they'll simply come back with the statement of "don't like it, go to school elsewhere, your enrollment in the school is agreement to the policy to transfer the work to the school", and it'll _likely_ be upheld in court.

See, it doesn't matter what the school's policy is, there is no automatic transfer of copyright. This also goes back to Title 17 201 (e):

(e) Involuntary Transfer. — When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect

The college/university may be relying on students not being able to fight it in court, but that doesn't change what is happening now.

If the student does not bother to fight it, then the university wins by default, temporarily, but it's like that with any illegal activity. Eventually someone will stand up for their rights.

I don't know what you're thinking of when you say "most jurisdictions", but in the U.S., in an employer-employee relationship, a work for hire is "a work prepared by an employee within the scope of his or her employment". That's a quote from Section 101 of the Copyright Law of the United States. That's it. No extra "if it's in the contract" or other weasel words. Explicit, succinct, and definitive.

OTOH, in a contractor or collaborator relationship, the definition of "work for hire" is a multi-part test. But in this case, I don't think that applies. Assuming the Anonymous Question Submitter is being literally accurate in his wording, he (she?) said "Later a university department hired me, on a part-time basis, to develop this project into a solution that they needed." (emphasis mine).

So, of the two-part definiton of an employer-employee work for hire, "hired me" establishes the "employee" part of the equation*, and "to develop this project" is the "in the course of his or her employment" part.

IANAL, but I can read. If the facts presented are accurate and complete, it's as cut and dried as the literal word of the law can be. (i.e., subject to interpretive modification by courts as their whim allows, but until the lawsuit is decided I have to assume the letter of the law is the law.)

*maybe. The words "hired me" are occasionally used to described the contractor relationship as well. The distinction is itself an interesting body of rules and lawsuits, but I think the Internal Revenue Service guidance is illustrative. Interestingly, the burden of proof is on proving someone working for you is, in fact, an independent contractor. Lacking that, the default case is an employee.

What's that got to do with the iPad? There's no law against jailbreaking it.

That is a questionable claim to make, whether we like it or not.

The DMCA prohibits circumvention of copy and write protection on a broad range of devices, which includes the iPhone and iPad. There are specific exemptions to this, which are generally exemptions to allow circumvention if it is towards increasing interoperability. However, these exemptions are created for specific cases, during a review process that occurs every few years or so. The EFF (god bless them) has been petitioning for the rights to circumvent DVD decryption, and more recently, for Blu-Ray decryption and jailbreaking. They have not been granted these exemptions, yet. It seems the review for last year has been postponed, though, so it doesn't look good.

(See the 1201 copyright site for the current set of rules, and a badly-made website. Or check out the EFF's most recent exemption requests or one of their anti-DMCA articles.)

There is, however, a specific exemption for circumvention to allow phones to work on cell networks they were not locked in to. This is especially ironic; Apple seems to be campaigning more strongly against unlocking, which lets you use the iPhone on other carriers, than jailbreaking, which simply gives you root access. Here, of course, unlocking is legal while jailbreaking may not be. The question to ask, though, is jailbreaking covered because you need a jailbroken phone to unlock it?

I'll let the lawyers and the EFF battle it out. I'll be sitting happy: I've just ported emacs to my iPad, and after I finish porting TeX Live, I'll be able to use it for everything I used my netbook for.

Then why does the law actually call it theft in many of its passages:

http://www.copyright.gov/title17/92chap5.html#507

Several instances of theft in there...and most intellectual properties professors consider this as such as my university (I took a few grad law classes before deciding on psychology). The idea that copyrighted materials were codifed as 'intellectual properties' was done so that it could be looked upon as a property under the eyes of the law. Now, I will grant you, quite a few court cases have said their weren't...but many have said they were.

Still, regardless of the pendancy of getting bent out of shape over the word 'theft'...lets just get rid of it for the conversation and I'll let you have that point.

What part of my belief that an artist / programmer / writer / whatever has a moral right to control their works under a legally given monopoly where others agree that there is value in the work -- what part of this is negated by the fact that it isn't theft -- but something else.

It just seems like your entire argument is surrounded by the fact that I use the word theft as opposed to copyright infringement.

As for copyright? I believe it is overly broad. I think Life Of Author + 70 Years is MORONIC. I think 30 years is moronic. I believe there should be different copyrights for different types of media...though I don't know how this could be implemented...but I do believe this. Pop songs? Give them a year...when I was an artist, I got to the point I didn't give a fuck about my work and was only writing what I thought would sell (and saving the good stuff for my friends and family)...the last few songs I've written for others, I signed away all rights and got paid up front...I got paid for the work, and I was done with it. A year for this sort of crap (or at least a year after publication) is more than enough...

I have a lot of beliefs that copyright is overly broad. It needs serious reform. At the same time, the very items people are rebelling against in their quest for copyright reforms are almost ALWAYS throw away crap...they aren't arguing for the next War and Peace. They are looking for the latest Summerset Maughm or Gabriel García Márquez work...they want pop bullshit. The same shit that was INTENDED to be a consumable, and not art...maybe in a sense, if something is considered that insipid, a group of judges could get together and say This Sucks...Infinite Copyright Granted...We Hope That The Companies Lock This Down So Tight We Never Hear It Again...and yet, the people clamoring for copyright reform are the ones most likely to have piles and piles of consumable bullshit on their hard drives that was never intended to be a part of the popular culture -- because it would require some sort of culture in the first place. Great works? Give the author a lifetime stipend and say You Sit Back And Do As You Will...We Are Taking Your Works And Giving Them To The People...I would LOVE this...

Honestly, I really don't care for copyright...and I don't care about the details...I care about the artists involved. I just see too many people looking at these works as commodity products and nothing more. I don't want commodity products...I think this society needs to move beyond that crap.

And yeah, thats me sitting in an ivory tower passing judgments upon the peasants that don't know any better...

Whether or not the copying was fair use seems to be the crux of the matter. The copying of a work that falls under "fair use" is not infringement. This is laid out in the copyright law http://www.copyright.gov/title17/92chap1.html#107 The court was originally being asked to identify the student.. The student tried to stop this by saying that no infringement occurred and so releasing their name would be an invasion of privacy. It seems to me that the judge decided that whether or not the copying was fair use or not was still up in the air, and so a trial was warranted. Like you said, it all seems perfectly reasonable to me -- from all sides. The plaintiff is entitled to ask for the disclosure of the name, the defendant is entitled to object saying that they were clearly not infringing, and the judge is entitled to say that the matter isn't clear enough to prevent the disclosure.

You have a right to communicate anonymously. This is protected by the first amendment and anyone who stands in your way of doing so is committing a crime.

You do NOT have the right to force others to act as if you are anonymous after you communicate non-anonymously. This is not protected by anything, and is pretty stupid.

Really?
Please list the relevant section of the First Amendment that gives the right to anonymity while breaking the law.
Right or wrong, "sharing" music that the copyright owners do not want being "shared" is in violation of the law.

Except for that, you know, fair use thing.

Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Contact the U.S. Patent & Trademark Office, 800-786-9199, for further information. However, copyright protection may be available for logo artwork that contains sufficient authorship. In some circumstances, an artistic logo may also be protected as a trademark.

"Doesn't matter if it's a breach of the EULA, as if you're in the US it's illegal under the DMCA."

Someone didn't read the DMCA, I see.

Learn about interoperability.

http://www.copyright.gov/title17/92chap12.html

They are using a clip that's less than 4 minutes out of a 178 minute film.

True, but that doesn't necessarily make the 4 minutes free to use, especially for purposes other than making a comment on that particular film or its authors.

Taking a dramatic scene about an important historical event and making it silly is a comment.

And anyawy, the wording of the fair use part of the US copyright is not a complete list, but examples: 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.

I think this would be legal regardless of what the ToS says. See the exemptions given to libraries and archives in 17 USC 108.

IANAL, but according to conventional wisdom you can legally copy the gameplay of a game.

US Copyright Office form letter 108 agrees with you. But that doesn't mean a company with more money to spend on lawyers than you will leave you alone. The Tetris Company in particular attacks any unlicensed tetromino stacking game that has any sort of revenue stream.

First of all, you are voiding your warranty and forgoing any future support. What Apple objects to is people jailbreaking the iPhone to unlock apps so that they don't have to pay for them. Read for yourself.

Second of all, the iPhone was known to be closed before you bought it so complaining that it is closed after you bought it is rather silly.

I made a point to mention PC games because MAME comes without ROMs, and at $150,000 each, I'll pass.

Copyright law grants exclusive rights to:

• to reproduce the copyrighted work
• to prepare derivative works based upon the copyrighted work
• to distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending
• to perform/display the copyrighted work publicly

Doing any one of those without permission is copyright infringement, unless fair use allows it. It probably does in this case, but I think that has more to do with the fact that Facebook are distributing the content in a format (HTML/CSS) that was specifically designed to allow different user agents to display information differently.

Can I copyright the name of my band?
No. Names are not protected by copyright law. Some names may be protected under trademark law. Contact the U.S. Patent & Trademark Office, 800-786-9199, for further information.

Names cannot be protected under copyright law, but they can be protected under trademark law, which to my knowledge doesn't make it illegal to list trademarked names.

"if not blocked by the DMCA" is the caveat to that

The Digital Millennium Copyright Act has explicit exceptions (17 USC 1201(k)(3)) for some types of analog reconversion of music and video.

Or a builder claiming ownership of the form of your house.

This link goes to a PDF describing the concept of architectural copyrights.

and as described in the following clause

The and isn't explicit in the statute. This is the sort of thing that has undoubtedly surfaced in numerous instances of case law (to the benefit of the legal profession).

I am explicitly claiming that your assertions of basis in law are not clear and are undetermined.

No, what your are doing (3 times now) is avoiding telling us what basis in law you have for your claims. In fact, your statement above is nothing but a bald-faced misdirection because I never made any assertions myself. I asked you about the basis for yours. Here's the what I would use as a reference had I made any assertions.

So, one last time, can you or can you not reference any basis in law for your assertions?

But, put simply, code is owned by its developer even once the client has paid, unless that developer is legally employed by the client or a contract exists that transfers full ownership (and even then it's far from clear-cut).

The gist of that is right. But it could use a couple of clarifications. The developer usually owns the copyright unless the contract explicitly transfers the copyright to the client. If that's the intent, but the contract just specifies transfer of full ownership, then it's not clear-cut because you have a poor contract that does not correctly specify what it needed to in order to legally satisfy the intent of the parties. If it actually transfers the copyright, then it is indeed clear-cut.

Now, the exception to the "developer generally owns it" rule, is when instead of developing a product, the developer is contracted to work on a module that will be incorporated into a larger program. Obviously, there's still room for argument in some cases as to whether the work produced could stand on its own or not, but in many cases it will be clear whether the product stands on its own or is a module of a larger work.

Also, I'd like to address an earlier assertion that it depends on your local and state laws. No it most certainly does not. Copyright is the exclusive jurisdiction of federal law and no state or local law can override or amend it.

Finally, for all the people who want to argue along the lines of:

• "If someone pays you to perform work, they own all rights to that work."
• "There's a practical presumption in law that if you pay for something and it is delivered, you own it"
• "If the contract does not stipulate otherwise, then the client owns the work-product."

Before you put any more effort into defending your incorrect assertions please at least let me refer you to information provided by the copyright office. Firstly from the FAQ on definitions:

Although the general rule is that the person who creates the work is its author, there is an exception to that principle; the exception is a work made for hire, which is a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned in certain specified circumstances. When a work qualifies as a work made for hire, the employer, or commissioning party, is considered to be the author.

Please note the "certain specified circumstances" as that is what many people seem to miss. Those specified circumstances are the ones specified in the law, not the ones that you or client think or wish they ought to be, and they are spelled out and discussed here. Seriously, it would be flat-out silly to further argue this point without reading that document.

Finally, I guess I should point out that I'm not a lawyer. Although the misunderstanding of the law put forth in other comments here is so extreme, they make me like a judge by comparison ;-) Especially the (possibly misquote of course) lawyer who apparently led someone to believe that NY has its own version of copyright law. Sheesh. And I bring that up deliberately, because I've seen non-specialist lawyers before give incorrect advice on this subject. Do not ask these questions of a general business attorney--use an attorney who specializes in copyright.

But, put simply, code is owned by its developer even once the client has paid, unless that developer is legally employed by the client or a contract exists that transfers full ownership (and even then it's far from clear-cut).

The gist of that is right. But it could use a couple of clarifications. The developer usually owns the copyright unless the contract explicitly transfers the copyright to the client. If that's the intent, but the contract just specifies transfer of full ownership, then it's not clear-cut because you have a poor contract that does not correctly specify what it needed to in order to legally satisfy the intent of the parties. If it actually transfers the copyright, then it is indeed clear-cut.

Now, the exception to the "developer generally owns it" rule, is when instead of developing a product, the developer is contracted to work on a module that will be incorporated into a larger program. Obviously, there's still room for argument in some cases as to whether the work produced could stand on its own or not, but in many cases it will be clear whether the product stands on its own or is a module of a larger work.

Also, I'd like to address an earlier assertion that it depends on your local and state laws. No it most certainly does not. Copyright is the exclusive jurisdiction of federal law and no state or local law can override or amend it.

Finally, for all the people who want to argue along the lines of:

• "If someone pays you to perform work, they own all rights to that work."
• "There's a practical presumption in law that if you pay for something and it is delivered, you own it"
• "If the contract does not stipulate otherwise, then the client owns the work-product."

Before you put any more effort into defending your incorrect assertions please at least let me refer you to information provided by the copyright office. Firstly from the FAQ on definitions:

Although the general rule is that the person who creates the work is its author, there is an exception to that principle; the exception is a work made for hire, which is a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned in certain specified circumstances. When a work qualifies as a work made for hire, the employer, or commissioning party, is considered to be the author.

Please note the "certain specified circumstances" as that is what many people seem to miss. Those specified circumstances are the ones specified in the law, not the ones that you or client think or wish they ought to be, and they are spelled out and discussed here. Seriously, it would be flat-out silly to further argue this point without reading that document.

Finally, I guess I should point out that I'm not a lawyer. Although the misunderstanding of the law put forth in other comments here is so extreme, they make me like a judge by comparison ;-) Especially the (possibly misquote of course) lawyer who apparently led someone to believe that NY has its own version of copyright law. Sheesh. And I bring that up deliberately, because I've seen non-specialist lawyers before give incorrect advice on this subject. Do not ask these questions of a general business attorney--use an attorney who specializes in copyright.

It depends upon your local laws and your contract. In the U.S., the default laws tend to vary by state. The last time I checked with my attorney, he told me that here in NY, all work is considered to be work-for-hire unless specified in writing. This means that the source code is automatically the property of the client, unless I get a contract stating otherwise. Which I do sometimes, but not that often.

Your attorney is wrong. The U.S. Congress defined what is and what is not a work for hire in 17 USC 101. To wit:

A "work made for hire" is --

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

New York cannot redefine the meaning of a work for hire. New York can only interpret the meaning of an employee and the scope of employment. If you are an independent contractor, you own the copyright in the absence of a written agreement to transfer the copyright. Period -- 17 USC 201 and 204.

It depends upon your local laws and your contract. In the U.S., the default laws tend to vary by state. The last time I checked with my attorney, he told me that here in NY, all work is considered to be work-for-hire unless specified in writing. This means that the source code is automatically the property of the client, unless I get a contract stating otherwise. Which I do sometimes, but not that often.

Your attorney is wrong. The U.S. Congress defined what is and what is not a work for hire in 17 USC 101. To wit:

A "work made for hire" is --

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

New York cannot redefine the meaning of a work for hire. New York can only interpret the meaning of an employee and the scope of employment. If you are an independent contractor, you own the copyright in the absence of a written agreement to transfer the copyright. Period -- 17 USC 201 and 204.

I don't think that's a correct interpretation of copyright law.

"In the case of works made for hire, the employer and not the employee is considered to be the author." from LOC copyright circular

So if work for hire allows for corporations to create and author copyright materials then why wouldn't a corporation be able to author the copyright of the output of this sort of program?

120. Scope of exclusive rights in architectural works (a) Pictorial Representations Permitted. — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place. http://www.copyright.gov/title17/92chap1.html#120

I am pretty sure all you have to do to copyright something is just to put it in a fixed form and maybe say "Hey this is copyrighted." There is no "filing" for copyright.

While it is correct that copyright takes hold the moment a work is fixed in a tangible form it is also irrelevant to what I said. From my original post:

Ironically, to bring this matter to court they have to officially file for copyright which will include depositing a copy of it in the Library of Congress.

While I concede the copy is actually deposited with the copyright office the rest of my statement is correct. Again I quote the copyright office:

Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work

Registration is also required to claim statutory damages. Unless Microsoft has already registered the work they can only claim damages for the actual value of the work which is nothing.

You sound like a complete ass.

As a general rule, name-calling tends to reflect more strongly upon the person doing the labeling.

1) News reporting does not allow breach of copyright.

In the US, freedom of speech, and of the press, trumps damn near all else. There are only a few narrow exceptions to the two, and this isn't one of them. The fact that the two are cited in fair use rules is more a reflection of this, than the CAUSE.

Additionally, from http://www.copyright.gov/fls/fl102.html
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.

And

Article 26(Use for Current News Report) In the case of reporting current events by means of broadcasts, newspapers or by other means, it shall be permissible to reproduce, distribute, perform publicly, or communicate(transmit) to the public a work seen or heard in the course of the event, to the extent justified by the information purpose."

3) Cryptome is using the whole work, and thus fails the test.

Amount is not the be-all factor. Fair-use can, and often enough does, apply to ALL of a work.

ie: "the amount and substantiality of the portion used in relation to the copyrighted work as a whole"

Considering that Cryptome is spot-on for the other 3 factors, I can't imagine a judge would take such a lawsuit seriously.

No, newsworthiness is not one of the fair use criteria, so Cryptome has no leg to stand on.

Fair use is based on a court ruling that attempted to balance copyright with the first amendment. It was later codified into law with a four-point test. Straight from the US Copyright Office:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

1) The non-profit news reporting character of the use is certainly an important factor.
2) The material directly affects the rights of millions of people.
3) Because of the nature of the work and the author's failure to make it available through other channels he had to use the whole thing.
4) The author has no intention of ever selling the work. Even if they did they would not get much for it.

Congress has the power to "promote the progress of...the useful arts" by granting copyrights. Protecting this work from distribution will not do that thus congress does not have the authority to grant a copyright on it.

Microsoft of course wants this document to remain secret. Ironically, to bring this matter to court they have to officially file for copyright which will include depositing a copy of it in the Library of Congress.

So their claim is legally correct and everything, isn't it?

IANAL, but an argument for fair use could be made. You could argue Cryptome's publication of the document is news worthy and being used for the purpose of criticism and comment.

I gave you everything you needed to look up some on-point rulings elsewhere, but to make it more explicit, here's the print cartridge case, and . See also section 1201(f)(3) of the DMCA, which explicitly permits reverse engineering for purposes of interoperability. To make it even more clear, see Title 17, Circular 92, Chapter 1, Section 102, which lays it out explicitly:

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Clear enough?

A protocol is a method, process, and system of communication. Here's what United States copyright law has to say on methods, processes, and systems: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Likewise, the IBM PC BIOS syscall interface is a protocol for applications to communicate with hardware drivers, yet Compaq and Phoenix were able to clone it by having one team of programmers make a description of the protocol (which isn't a derivative work) and having another team implement it.

If they are signing them, the fact that the law doesn't make false DMCA notices explicitly illegal is the problem.

I thought a take down notice was filed under the penalty of perjury http://www.copyright.gov/legislation/dmca.pdf (see "TITLE II: ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION" Section "Limitation for Information Residing on Systems or Networks at the Direction of Users" on page 12)

IANAL, but if I understand US law correctly you can drag anyone's ass to court if they file a bogus take down notice.

I won't agree "common carrier status" is a valid argument. ISPs don't have common carrier status. But there's another protection that applies to them, that should make the DMCA notice sender think twice, before going any further than sending a notice.

The DMCA does not apply to ISPs who merely route traffic (and don't host the content on their network, or their equipment)..

Contrary to popular misconception, the DMCA does not have just ONE safe harbor, it has two separate safe harbor provisions, and each one has different requirements, and applies under different circumstances.

One of the safe harbor provisions [US Title 17, Chapter 5, Sec 512, (c)] pertains to content providers, web hosters, etc, companies that store content on behalf of their customers, and has the infamous provisions for notice and takedown requirements.
These people must arrange for an agent to receive DMCA notices, and expeditiously remove content, in order to enjoy that particular safe harbor protection.

That one is the 512(c) safe harbor.

This is not the safe harbor that ISPs should rely on.

ISPs should rely on the 512(a) safe harbor, which does not require having an agent to receive notices of infringing content, and does not require doing anything with such notices, in order to enjoy the protections of this provision.

Because any copies of the material are "intermediate and transient," there are no notice and takedown procedures

US Title 17, Chapter 5, Sec 512, (c)
http://www.copyright.gov/title17/92chap5.html#512 " (c) Information Residing on Systems or Networks
at Direction of Users." versus
"(a) Transitory Digital Network Communications. ... A service provider
shall not be liable for monetary relief, or, except as provided in
subsection (j), for injunctive or other equitable relief, for
infringement of copyright by reason of the provider's transmitting,
routing, or providing connections for, ...."

The DMCA doesn't say anything about severing connectivity to computers on a network. That's just what the wronged party wants (if they try to send a notice to an ISP that a user happens to subscribe to, or that their traffic happens to pass through), the collateral damage doesn't effect them, if the ISP cuts off innocent users in the process.

The current DMCA provides some decent protections for ISPs that don't have unjust requirements like takedown procedures.

Big **AA organizations ignore this fact, and send notices anyway.

Because (A) they wished the takedown procedure applied in all cases, or they may even be trying to get the law changed to do that...

(B) They rely on the misconception; they would like ISPs to think they must disconnect the user immediately on notice.

(C) They want to minimize the number of "outs" or legal protections any future counterparty might have -- by sending the notice, regardless

(D) Scare tactic.

Nice try, but no. What this actually means is that the copyright notice on the flickr page is a mistake and it holds no power. Anyone sued for violating its copyright can yawn in the direction of USC 17.1105 and walk out of the courtroom.

the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if.... [more conditions]...

Since a movie does not seem to be a nondramatic literary or musical work, the movie would fall under "any other work," so a "reasonable and limited [portion]" of the work may be performed if the subsequent conditions are also met. For the UCLA case, that seems to imply that you are limited to using a part of the work. The alternatives would be to show it live with an instructor present (but the faculty don't want to waste class time or schedule TAs for group showing) or to provide copies for individuals to check out (but the hours of the media center are inconvenient). (Hmmm, the educational license I mentioned may have allowed a group to watch for educational purposes without an instructor present, e.g. a group showing in a library media center). In any case, it seems that the problem can be solved by working out a different licensing agreement.

When you buy a DVD, it has an implicit license to the conditions under which you can watch it (That FBI warning at the beginning indicating you can't show it to a large audience). To comply with copyright law, an "instructional" DVD which permits showing to an audience is required.

This is false. There is an explicit exemption for use of videos in the classroom. From 17 USC 110 (1):

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

However, this does not cover posting videos online, like UCLA was doing. IIRC (can't find a link right now), there have been cases where schools tried to include videos in distance learning classes, and the judge ruled that it was not fair use.

Price? How is it above $0? Did bittorrent suddenly stop working for you?

Is that $0, or $150,000?

Here you go.

http://www.copyright.gov/circs/circ21.pdf

Nowhere in that publication is the text "thirty" or "30", and there are no hard and fast limits listed for phonorecords (which are mistakenly referred to as "music" in the pamphlet). It does mention "in no case more than 10 percent" after stating that other fuzzy limits (i.e., standard fair use text) might apply instead, and then going on to say that in some cases it is OK to copy 100% of the work. So, I stand by my statement there is no reference in any publication by the copyright office to any length of time or percentage of work as being "acceptable" as fair use.

In addition, this pamphlet doesn't even mention audiovisual works other than taping news programs off the air...apparently the LoC believes that making a copy of part of a movie isn't something an educator might want to do.

Also, the LoC actually is responsible for a *lot* of copyright-related rulemaking.

These are administrative rules, not laws.

For example, Congress passed a law that said that statutory payments for certain licenses were an acceptable method of licensing (but did not preclude other licensing methods), and then picked a group of people to set the rates.

Here you go.

http://www.copyright.gov/circs/circ21.pdf

Also, the LoC actually is responsible for a *lot* of copyright-related rulemaking. Among other things, it sets statutory rates for various licenses, produces a list of exemptions from the DMCA, etc., all of which are, in fact, legally binding just as though they were codified in Title 17. Whether this truly falls within that realm or not is something the courts would have to decide, but good luck trying to get a judge to set aside something that is so broadly accepted.

Actually, the 30 seconds thing is just plain wrong. It's 45 seconds, and it is only true if the clip is solely used by someone to promote the sale of the song. There was an attempt to get a more general 30 second exemption for commercial use, but that didn't ever make it out of Congress, I don't think.

The 10% thing comes from Circular 21, which is a set of guidelines for educators from the LOC regarding non-performance fair use in a classroom setting. It doesn't necessarily apply outside of that setting, but within that setting, it's generally considered to be "safe".

Use? I thought copyright was about COPYing.

It covers more than that, including public performance (say, playing the radio at work), and modifying existing copies.

I'm a pornographic film maker and I have just registered a screen-play with the USPTO and the US Copyright office for a creative work titled "The Large hardon Collider"depicting two white nude male actors running around a ring for the purpose of jousting with their abnormally large, erect penises. When the actor collides his penis with the opposing actor he is assigned a point for the collision, the first actor to achieve 5 points wins the privilege of engaging in the sex scene with a black actress. Any talk or writings involving "large hardon collider" or "large hardon collisions" with or without blackholes is a serious violation of my IP rights. My legal team is at this moment is preparing litigation against the more grievous violater one "Anonymous Coward".

Seriously if newstechnica.com habitually misspells the word hadron, which is so fundemental to the topic of the article, how can anybody give them any credibility?

Fundamental.

I'm a pornographic film maker and I have just registered a screen-play with the USPTO and the US Copyright office for a creative work titled "The Large hardon Collider"depicting two white nude male actors running around a ring for the purpose of jousting with their abnormally large, erect penises. When the actor collides his penis with the opposing actor he is assigned a point for the collision, the first actor to achieve 5 points wins the privilege of engaging in the sex scene with a black actress. Any talk or writings involving "large hardon collider" or "large hardon collisions" with or without blackholes is a serious violation of my IP rights. My legal team is at this moment is preparing litigation against the more grievous violater one "Anonymous Coward".

Seriously if newstechnica.com habitually misspells the word hadron, which is so fundemental to the topic of the article, how can anybody give them any credibility?

Actually Section 109 gives you permission to lend a book.

No. Section 109 clarifies that copyright law does not take away your right to lend a book. You never needed permission before copyright law, and you still don't after.

Yeah, I was up to you until that point. It's the other way around. Nobody "gives" people permission to lend or even copy books.

Actually Section 109 gives you permission to lend a book. Copyright forces you to get permission from the source material's author to copy it.

The right to use information is among the inalienable right granted by our Creator (whomever this might be), the right of liberty. It is enshrined in the first amendment, the right to free speech, because the written word is a manifestation of speech.

How does "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." give you the right to copy a book? Except maybe you confused the right to publicly speak and/or publish about our grievances with our government, with some ability to copy someone else's work...

Copyright restricts publishing, it says nothing at all about already produced artifacts.

Well actually it does. It's in Section 109.

So yes - you do have permission as explicitly given by section 109 of the US Copyright law (aka "First Sale Doctrine").

As for the rest of your post, there is "DRM on dead trees". Because the amount of effort to memorize and recite a library book would deter the average people. Sort of like digital DRM would deter the average person. Both forms of DRM can be circumvented if someone is determined to do it.

Since when does anyone need "permission" to lend out an item that they own?

Thanks to Section 109 of the copyright law, you already HAVE permission to lend that book. So what was your point?

Having permission to lend a book, does not equal to sharing a copy on the P2P network as mention earlier in this thread.

"Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form."

http://www.copyright.gov/fls/fl108.html

Anyone can sue you for any reason. It doesn't mean that they can win. But if they have money and they can pay fancy lawyers, they will probably find some technicality to take you out and rob you poor in the process. Live with it.

If you have a question for a lawyer and you can't afford one, stop what you're doing.

In other words, everybody who isn't rich enough to see a lawyer should commit suicide because ultimately, everybody has questions. I hope this isn't what you meant.

Did you just type "obscure game" into the USPTO's web site?

If I type each of the companies that developed and published the game into the "Assignee Name" field and nothing on the list is relevant, is that enough?

And this is why you're in deep crap, you have a limited and incorrect idea of what copyright is.

Could you explain further? As far as I can tell given information published by the U.S. Copyright Office as well as the opinion in Capcom v. Data East, copyright doesn't apply to the rules of a game as such.

Just another sign of your ignorance and why you really really need to find the money for a lawyer.

Any idea how to raise this sort of capital?

AFAIK, the criminal law only applies to being busted downloading >= $1,000 "worth" of stuff in a six month period.

Correct:

"Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed ...

(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; ..."

But, given that e.g. Photoshop CS4 alone costs $699, it is ridiculously easy to do just that. Even with music alone, if one assumes $1 per file, it's 1000 files in 6 months - not all that much by today's measure.