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Finally - all this academic stuff aside, American copyright law doesn't clearly define what a derivative work is. Much like fair use, in cases of dispute it's up to the court to decide where the line is drawn so quite frankly

Courts have rules of statutory construction, and one of them is that they can't just make a term mean anything they want it to mean, but rather must interpret it generally as the ordinary, common meaning of the term at the time time the legislation was enacted _and_ in accordance with the meaning implied by the text of the legislation itself.

The FSF / SFLC wants the line to be drawn so far away from the ordinary and common meaning of the term derivative work or that which can be gathered from the statutory text that they don't have a plausible legal foundation to stand on.

In the Anglo-American system of common law courts do make potentially binding clarifications of the meaning of laws within those intrepretive constraints, and guess what: what the U.S. courts have decided about the meaning of derivative work is the obvious "copy with modification" meaning, not the legal fantasy promoted on occasion by the FSF and the SFLC.

Here is the U.S. Copyright Office on the subject:

A derivative work is a work based on or derived from one or more already existing works. Also known as a "new version," a derivative work is copyrightable if it includes what copyright law calls an "original work of authorship." Any work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship is a derivative work or a new version. A typical derivative work registered in the Copyright Office is a primarily new work but incorporates some previously published material. The previously published material makes the work a derivative work under copyright law. (See here [pdf]).

More storage would be great, but if the drives/media are a "world of hurt" with DRM/licensing, will the technology be all that useful?

It's hard to ever trust Sony again after the music CD rootkit fiasco. DRM on audio CDs pales in comparison to Blu-ray, but there's still much more to it than many realize.

Here's a paper (160K PDF) with some excellent background on it:
http://www.copyright.gov/1201/2006/hearings/sonydrm-ext.pdf

> while Apple considers you to be a criminal if you jailbreak

From the iOS Jailbreak Wiki: "Jailbreaking, according to Apple, voids Apple's warranty on the device, although this is quickly remedied by restoring the device in iTunes." Can you please site your references?

Apple Says iPhone Jailbreaking is Illegal
PDF

Now whether it actually is or not, is a completely different question.

What *should* be happening, at the very least, is that a full copy (including source and binaries, in the case of software) of any copyrighted work be placed in government escrow so that it can be released to the public after the copyright expires

It is worth noting copyright does make a feeble attempt at this. In order to sue for copyright infringement the work must be registered. In order to seek statutory damages the work must be registered before the infringement. One of the requirements of registration is disclosure of the source code.

Unfortunately, the law is really weak in this area. The copyright holder only has to turn over the first 25 and last 25 pages of source. If the source is submitted electronically, the copyright office actually prefers that it be in PDF format. Also, if there are trade secrets in the source the copyright holder can block out the trade secrets.

This is perhaps the most ill-constructed wealth of ignorance posted on Slashdot for a while, at least without original intent to be tardy.

Copyright protects creative works. Whereas published works may have required copyright notice on the work (before 1989), or deposit with the Library of Congress, unpublished works have never required a copyright notice for protection. If you created it, you have the copyright on it, and can take protective action against others distributing copies of your work.

Patents protect exclusive distribution of inventions. We do not do the exact same thing with patents. Patents allow you to take legal action and prohibit competitors from making infringing products.

Trade secrets are secrets as long as they are kept secret, but 'infringing' products are not actionable. You have not publicly declared that you invented something, so if someone else invents it they can use it too (and might even be able to patent it if you haven't created prior art implementing your invention). There are only legal covenants (and criminal liability in some states) to prevent employee disclosure, theft, or espionage. Trade secrets can include non-copyrightable or non-patentable things such as the formula for Red Bull.

Software, which is currently under discussion, can have all: patentable (think Amazon one-click checkout patent), under copyright (as the Amazon web server software is, even if undisclosed), and contain trade secrets (such as server cloud optimization routines to speed processing).

If you work for Apple and released the source code to 1984's Macintosh File System you would be breaching your non-disclosure trade secret agreement with Apple. The disclosed software would still be covered by copyright, and features or inventions implemented in the software may be covered by patents too. Many software patents are so vague in their description (merely describing the end result or user interface) that the actual implementation in code may indeed be a trade secret too.

When did you sign the contract? If it was during or after 1978, and you are the author, your termination rights might be coming up.

This link: http://www.copyright.gov/title17/92chap1.html#107 specifies what is considered fair use.

It gives some guidelines, and four factors that are to be considered. Neither are exhaustive; just because a given situation isn't explicitly spelled out in 17 USC Sec. 107 doesn't mean it isn't fair use. Fair use precedent is slippery precisely because it depends on the merits of individual cases, which are very hard to codify.

Using a recording in a personal video and publishing it online is not considered fair use according to law.

I disagree. I think that, depending on the specific circumstances involved, it could be a fair use, though it wouldn't necessarily be.

Would you mind providing specific language indicating that your claim is correct. The statute you linked to just provides a test for determining if a use is fair or not; it doesn't specifically say what you claim it says.

HoweverIt may be considered a derivative work as covered in section: http://www.copyright.gov/title17/92chap1.html#103

Well, since copyright includes the exclusive right to prepare derivative works, in what way is that useful, even if it is correct?

AFAIK there is no fair use exception for copyrighted music.

Not even in a video about how someone's music is similar to someone else's? A video like this would, in my view, fall squarely under the spirit of 17 USC 107, which specifically mentions "purposes such as criticism [or] comment" . I can see a defense for this under at least factors 1, 3, and 4, and the court in Luther Campbell v. Acuff-Rose Music ruled the same way about a spoof of Roy Orbison's "Oh, Pretty Woman".

That statutory license does not cover any copying of recorded sound

Nor does it appear to cover derivative works such as the result of subconscious copying. From 17 USC 115: "the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner."

And there still doesn't appear to be any options available to me if I had been making the disputed recording available on my web site as a free promotional download.

I know you don't much about the law but Apple really doesn't care if you jailbreak your iPhone/iPad. I've talked to Apple guys in the company. *They don't care*.

That's why they paid a lawyer to file this which states in part:

In sum, the value of the iPhone, and hence the software embedded in it, is substantially diminished when the integrity and functionality of that software is compromised by jailbreaking, when Apple is left to deal with the problems that ensue, and when the positive feedback loops enabled by the App Store and the iPhone Developer Program are compromised.

This means they may not sue right now for PR reasons, but the door is wide open if they feel threatened. If you prefer to buy hardware that opens you up to lawsuits if you decide to install your own software, that's fine.

And trust me, it will be a cold day in hell before I need help from a "Genius". Just pull up a terminal in front of one of those haircuts. Their eyes will glaze over and ask of you're a "hacker."

And, BTW, iAd hasn't even gone live yet; so it's not being shoved down anybody's throat. And when it does go live, it certainly won't be any more offensive that those Google ads I have to see every time I run a search.

It's July 1st. iAd is live, or is supposed to be anyway.

Criticizing "anyone for anything" doesn't make you smart. It just makes you a jerk.

Aww boo.

You're now trying to change the topic...

No, you lost the argument, so you're trying to change the topic.

Skipping the distasteful amount of brand apology...

Which just goes to show that you don't understand Apple's approach....

I'm fully aware of Apple's totalitarian business model.

And how the heck do you not "chain your software to your operating system."

There are many programs available for more than one operating system. Apple is unique in chaining their operating system to their hardware, and they have a history of picking up small software companies, and ending Windows development if they can. If Microsoft did that to a popular apple product, you'd cry about anti-competitive business practices.

But I get it. Really. Whatever Apple does, you're on board. The brand is all that matters to you. That was my point in the first place.

Technically you can't copyright an unpublished work anyway, at least so the Copyright Office told me.

I don't know who you talked to at the Copyright Office, but you should be sure to talk to someone else in the future. He/she seriously misspoke.

First, in the U.S., all works published after 1978 are automatically copyrighted beginning on the date of creation.

Second, most works should be unpublished at the time of registration. Although you do technically have a three month grace period to register your copyright, anything after that and you risk losing the ability to obtain statutory damages for infringement. Thus, it is common to register prior to publication. Just use form CO.

Perhaps you're thinking about registering for a copyright on an incomplete work? You couldn't do that until a few years ago, IIRC.

You claim that shortening copyright would have no impact on the availability of (many) books because there is no demand for them in the first place.

You then support your claim that there is no demand for them by claiming, presumably, that the cost of a limited print run would be so low that were there any demand, it could profitably be met.

I don't really buy this. Isn't the entire problem with thousands and thousands of orphaned works that the copyright holder can't even be easily identified? So that even if there is demand, and the costs of a limited print run are small enough that I decide it would be profitable to do it, I can't find the copyright holder (who may be dead, have gone out of business, or simply forgotten or lost the records pertaining to the copyright).

There are a huge number of books that are out of print but still under copyright. Wasn't one of the benefits of the Google Books scanning project to make these widely available at essentially no cost to interested readers? I could turn your argument around and say, look, if the copyright holders weren't exploiting their copyright and selling the book in the first place, clearly they didn't think it was worthwhile to do so, so what's the harm in Google scanning it and making it available?

Furthermore, there are other reasons to have access to the text of old books than just for passing interest or pleasure of reading them. Lots of scholars would love to have full-text search capability of old, out-of-print works, if only for statistical analysis. It doesn't make sense to do this with limited print runs, and it would be prohibitively expensive. Just scanning everything, OCR, and archival makes much more sense.

On the issue of film preservation, a letter from the National Film Preservation Foundation discusses the problem of orphan works again:

"In an environment of scare resources... Copyright status becomes part of the preservation decision-making process... I believe that important parts of America's film heritage will become lost to educators and the general public unless some simpler, more structured and cost-effective system can be developed for ascertaining the rights status of orphan works." (source)

If copyright were shorter, there would be fewer orphan works, and at least according to that group, more preservation and dissemination of cultural material.

[Before Portal officially came to Mac OS X,] could people have legally cloned it, ripped off all the assets, and distributed it for free? I don't even think this is a slippery slope.

The drop-off point is when someone copied the . Under U.S. law, a Portal clone using original assets would fall under the exclusion of game operation methods in 17 USC 102(b), as would Pingus, a Lemmings clone using original assets. The Tetris Company appears not to understand this.

[Before Portal officially came to Mac OS X,] could people have legally cloned it, ripped off all the assets, and distributed it for free? I don't even think this is a slippery slope.

The drop-off point is when someone copied the . Under U.S. law, a Portal clone using original assets would fall under the exclusion of game operation methods in 17 USC 102(b), as would Pingus, a Lemmings clone using original assets. The Tetris Company appears not to understand this.

What you're talking about is the technical amendment to the 1976 Copyright Act that was passed in the Satellite Home Viewer Improvement Act of 1999 - specifically, in Public Law Number 106-113, app. I, sec. 5005 (which can be found here, but you'll have to search for "sound recording" - it's near the bottom). Semi-contemporary coverage of this can be found here. The legal ramifications of that attempt at stealth-legislation are discussed in David Nimmer's Sound Recordings, Works for Hire, and the Termination-of-Transfers Time Bomb.

But, that scandal was fixed - in the Work Made for Hire and Copyright Corrections Act of 2000, Public Law Number 106-379, which can be found here.

The greater scandal is the Vessel Hull Design Protection Act, Pubic Law Number 105-304, which is still codified at 17 U.S.C. ch. 13 (the law can be found here). David Nimmer has speculated in his treatise and elsewhere that the sui generis protection for boat hull designs is a trojan horse to later allow new designs to be protected by this bizarre "copyright" provision. And in fact, such protection has been considered for fashion designs.

Fact of the matter is that stealth amendments happen all the time. Copyright is not an area of that law that congress people pay much attention to.

The ASCAP letter is throwing an awful lot of FUD around, but in essence it comes down to the freedom to engage in legal contracts. ...To seriously reach at the heart of open source and the creative commons, they would have to impose a whole new doctrine of only allowing contracts that are good for the country or the economy or whatever. It's as unlikely as snowball fights between flying pigs.

I see what you're getting at, but I think there's actually a really easy (as in, technically easy - definitely not legislatively easy) way for ASCAP to get what it wants. And get what it wants in a big way. And without really abridging people's contracting rights.

ASCAP could totally kill open licensing by requiring all licenses and transfer of copyright to be exclusive. I.e., no more nonexclusive licenses.

That's probably way too radical to ever happen, but a similar result could be obtained by tweaking section 204 of the Copyright Act (17 U.S.C. 204), which requires transfers of copyright ownership (i.e., exclusive licenses) to made in writing and signed by the owner. If that were changed to require all licenses to be signed by the owner (whether exclusive or nonexclusive), open licenses would be rendered impractical. Because regular folks really don't have the time to sit down and sign every license (even with an electronic signature, it would be too inconvenient), what this change would do is essentially cement ASCAP into a permanent part of all future copyright business. ASCAP is a collective rights organization - so, in other words, it acting as the owner's agent and signing licenses for them is already its business model. If even Creative Commons licenses had to be signed, then, as a practical matter, CC licenses would have to go through ASCAP . And you can bet your ass that they would charge a fee, even when processing "free" licenses.

Oh, dear. *Property* is a statutory construction. Take a careful look at land ownership, human slavery, and pet ownership to verify that "property" can mean some very strange things that are not merely a physical object. And take a very good look at the history of copyright related to religious texts to understand that it's not merely about sales: it's also about making sure that the copies match the original work according to the owner's wishes, or the use of copyright on private correspondence to preserve its confidentiality.

As things stand, copyright infringement is legally close enough to theft that its penalties reflect the loss of revenues from the objects copied. The criminal code is at http://www.copyright.gov/title17/92chap5.html: do take a look, it's fascinating materlal.

the copyrights are in my business' name.

Doesn't work that way, http://www.copyright.gov/fls/fl107.html - same as patents have to be filed in an individual's name, and can then be assigned - copyright is a personal right. See circular 1 from the USCO.

You would have to register the copyright as the author/creator; then a subsequent transfer of copyright from the author to a business can be done, but it needs to be done in writing. SCO found that out the hard way. USCO has no record of you ever having any copyright to anything or being involved in any copyright transfer or application as a first or second party.

So unless you come up with a registration number, it's pretty obvious at this point that you lied.

Besides, you claimed that clone54321 infringed YOUR copyrights - not your business. So, were you lying then about you being the registered copyright holder, or are you lying now about your business being the registered copyright holder? You can't have it both ways (and I'm pretty sure it's neither - you never registered any copyrights).

So, like I said, it's ironic that the US Copyright Office says you are nothing.

Negatory, Ghost Rider. The $150,000 figure is the highest amount of statutory damages available under the Copyright Act for willful infringement of a copyrighted work. Statutory damages have no bearing on actual damages. That's why commercially unsuccessful movie producers have gone around suing alleged infringers: the plaintiffs don't have to show any actual damages to get a huge payday.

Yes. Jailbreak your iPhone and download it from someone else. Neither act is illegal.

Wrong.

This is Apple's response to EFF's request for an exemption for jailbreaking to the Copyright office:

http://www.copyright.gov/1201/2008/responses/apple-inc-31.pdf

Some excerpts:

Current jailbreak techniques now in widespread use utilize unauthorized modifications to
the copyrighted bootloader and OS, resulting in infringement of the copyrights in those
programs. For example, the current most popular jailbreaking software for the iPhone,
PwnageTool (cited by EFF in its submission), causes a modified bootloader and OS to be
installed in the iPhone, resulting in infringement of Apple’s reproduction and derivative works
rights. Specifically, in the spring of 2008, hackers were able to determine how to circumvent the
secure ROM in the iPhone and falsely sign the bootloader. Using such knowledge, a falsely
signed modified version of Apple’s bootloader was created that will fool the secure ROM into
loading it, thereby circumventing the TPM implemented by the secure ROM. PwnageTool
directly modifies a copy of the bootloader and loads it onto the iPhone. The modified bootloader
is configured so that it does not perform the authentication check of the OS, and it therefore
loads a modified version of Apple’s OS that is not signed, thereby circumventing the TPM
implemented by the bootloader. The modified OS, in turn, is configured so that it does not
perform authentication checks on application programs loaded onto the iPhone, thereby
jailbreaking the device. In sum, PwnageTool circumvents every link of Apple’s “chain of trust”
TPMs in the iPhone. More generally, as the EFF submission admits, “decryption and
modification of the iPhone firmware appears to be necessary for any jailbreak technique to
succeed on a persistent basis.”32
Jailbreaking therefore involves infringing uses of the bootloader and OS, the copyrighted
works that are protected by the TPMs being circumvented. Unauthorized derivative versions of
the bootloader and OS have been created. Copies of those infringing works have been stored on
web sites, and infringing reproductions of those works are created each time they are
downloaded through Pwnage Tool and loaded onto the iPhone.33 In addition, as discussed in
Section II.B.2 above, the jailbroken OS enables pirated copies of Apple copyrighted content and
other third party content such as games and applications to play on the iPhone, resulting in
further infringing uses of copyrighted works and diminished incentive to create those works in
the first place.
In sum, the jailbreaking of the iPhone that would be permitted by the proposed Class #1
exemption in 5A and 11A would result in infringing uses of copyrighted works. It would
involve the creation, distribution, and copying of unauthorized modified versions of the
bootloader and OS, and it would facilitate and encourage the making, distribution, and use of
infringing copies of copyrighted material such as games and applications, owned by both Apple
and third parties, that run only on jailbroken phones. The proposed exemption therefore does not
satisfy the fundamental prerequisite of the statute that it aid “noninfringing uses” of copyrighted
works and should be rejected.
The infringing uses of copyrighted works that result from jailbreaking distinguish the
proposed Class #1 exemption in 5A and 11A from that of the 2006 exemption for circumvention
of firmware in a wireless telephone handset in order to connect to a wireless telephone
communication network.34 With respect to that exemption, the Librarian of Congress found in
2006 that the reason the four statutory factors “appear[] to be neutral is that in this case, the
access controls do not appear to actual

... you're not buying the information itself or the right to make even one filecopy of that information which you sell or give to someone else. (Yes, backups are fair use, no matter what anyone says.) I'm sorry, but you're just not.

Emphasis mine.

The US Copyright Office would seem to disagree with you:

"Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed."

The information itself is not protected. A good counter-example to your statement is the case of academic publishing (e.g., scientific papers), where the information is clearly meant to be re-used and no additional license is provided to say so because it is not needed.

Violating the DMCA (with its anti-circumvention rules) is not the same as violating copyright. Seriously... you are grasping here.

The DMCA is not a separate document. Is it a law that added new sections to existing copyright law. Specifically, it added chapters 12 and 13 as well as amending a number of existing clauses in Title 17 U.S. Copyright Law.

Violating the DMCA (with its anti-circumvention rules) is not the same as violating copyright. Seriously... you are grasping here.

The DMCA is not a separate document. Is it a law that added new sections to existing copyright law. Specifically, it added chapters 12 and 13 as well as amending a number of existing clauses in Title 17 U.S. Copyright Law.

Violating the DMCA (with its anti-circumvention rules) is not the same as violating copyright. Seriously... you are grasping here.

The DMCA is not a separate document. Is it a law that added new sections to existing copyright law. Specifically, it added chapters 12 and 13 as well as amending a number of existing clauses in Title 17 U.S. Copyright Law.

Violating the DMCA (with its anti-circumvention rules) is not the same as violating copyright. Seriously... you are grasping here.

The DMCA is not a separate document. Is it a law that added new sections to existing copyright law. Specifically, it added chapters 12 and 13 as well as amending a number of existing clauses in Title 17 U.S. Copyright Law.

IANAL, but this is how I understand it.

What the EFF article seems to overlook is how 117 is worded and how Glider actually works.

The relevant part of 117 states

(a) Making of Additional Copy or Adaptation by Owner of Copy. -- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

From my understanding, Glider makes an additional copy of World of Warcraft in memory. Said copy is not used "for archival purposes only" nor is the copy "an essential copy in the utilization of the computer program in conjunction with a machine." In order to legally make an additional copy without a license granting you permission to make it, it has to be one of these two. Glider's copy is neither.

Fair enough on the tortuous interference, but that's small beer compared to the ownership and copyright issues.

MDY shouldn't have to make any argument regarding whether the RAM copy is "authorized" or not, since Title 117 disallows copyright claims against the owner.

Note carefully that Blizzard's argument isn't against Title 117, it's that their EULA means that the purchaser doesn't "own" the copy that they bought, and so the enjoys no Title 117 protection. That's the significant precedent here.

MDY didn't make the argument at all, Blizzard made the argument that it was unauthorized... specifically for the points that you raised.

MDY is then required to answer as to how Blizzard is wrong, otherwise they stipulate to the claim.

This raises the question: can a person in possession of a piece of software, make a copy necessary for its use, when such use is in violation of the EULA?

Fair enough on the tortuous interference, but that's small beer compared to the ownership and copyright issues.

MDY shouldn't have to make any argument regarding whether the RAM copy is "authorized" or not, since Title 117 disallows copyright claims against the owner.

Note carefully that Blizzard's argument isn't against Title 117, it's that their EULA means that the purchaser doesn't "own" the copy that they bought, and so the enjoys no Title 117 protection. That's the significant precedent here.

I don't believe the US was obligated to apply that to works created before they adopted the Convention.

From my reading of the circulars below, The Hobbit would be copyrighted (in the US) until 2032. It would have expired in 2012 if they hadn't extended the term an additional 20 years in 1998.

There is, of course, plenty of time to extend it further.

Copyright Basics

Duration of Copyright

I don't believe the US was obligated to apply that to works created before they adopted the Convention.

From my reading of the circulars below, The Hobbit would be copyrighted (in the US) until 2032. It would have expired in 2012 if they hadn't extended the term an additional 20 years in 1998.

There is, of course, plenty of time to extend it further.

Copyright Basics

Duration of Copyright

If Google restores access to the disputed work as part of the counter-notfication procedure, Google is immune to copyright infringement claims from the complaining party over the disputed work. 17 USC 512(g)(4). Any such lawsuit would be directly between Tetris and the fan-game developer.

The law does not force them to offer your product for download. Period.

As I understand the statute (17 USC 512(g)), fourteen days days after Google receives the counter-notice, any contract that Google might have already had with you requiring Google to offer your product for download is reinstated.

The "M" is actually for "Millennium". Digital copyrights and copyrights of printed materials actually differ in only a few ways. What is eligible for copyright in the first place is not one of them.

PDF about computer software copyrights

however, the DMCA does not FORCE them to put it back up when you file a counter. They can choose not to put it back up

If the service provider doesn't put it back up within 14 business days after its designated agent receives the counter-notice from the subscriber, its immunity under 17 USC 512(g)(1) expires, and the subscriber can sue the service provider.

and since there is so little to gain by putting it back up.. no attorney would ever recommend that they do so.

Where do you draw that conclusion? From the statute, 512(g)(4): "A service provider's compliance with [the counter-notification procedure] shall not subject the service provider to liability for copyright infringement with respect to the material identified in the [original takedown] notice."

You believe that gameplay can't be copyrighted. You cherry picked some unnamed and unknown sites that support your believe about gameplay and copyright.

One web search shows as the first hit a nice page from the US Copyright Office that demonstrates he's right. And that's not specific to the US (left as a web search exercise to the reader).

In the US, yes, you hold the copyright on both the work and the recording by default.

That's what George Harrison thought until he got sued over "My Sweet Lord". As 17 USC 103 puts it: "protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully." How can I tell whether or not I have accidentally plagiarized someone else's song?

Huh? You can still record from TV? :)

Seriously. No, you're not pirating. The station paid for the right to broadcast that song, and part of the fair use deal is (ok, was) that it's accepted that people will possibly record this broadcast for their personal use.

That's not how fair use works, nor are you allowed to record from the radio "for your personal use".
Fair use is a bit frustrating. The name is so simple that most people get suckered into believing that that's all it is "use that's fair". Even scholars get confused - Professor Neeson at Harvard tried to raise a fair use defense in the Tenenbaum trial, and his argument amounted to "but it's not faiiiiiir!"

Fair use is codified at 17 USC 107. It reads:

Notwithstanding the provisions of sections 106 and 106A, 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. 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.

So, take your radio-recording situation. Is it for criticism, comment, news reporting, teaching, or scholarship? Obviously not. What about that last one, research? "I'm just researching whether this band is worth buying!" No, that argument has been tried and failed repeatedly. Research in the statute means scientific research, not aesthetic research or research into the economic value of something to you personally. There is no statutory "try before you buy".
What about the other factors in the test, though? The statute does say "such as criticism, comment, etc." so it's not an exhaustive list. But this is easy too:
1) You're using the work for personal enjoyment. It's non-profit in the sense that you aren't profiting, but it's not for educational use. Rather, it's to avoid having to pay for a copy.
2) The nature of the work is a commercial, copyrighted song, rather than a list of formulas from a textbook or a collection of data records.
3) You're using the entire song, not just a clip.
4) You could have purchased the song, and did not.

Nonetheless, it's not pirating, providing you're using the recording for the purposes of time-shifting. As the Supreme Court explained in the Betamax case, time-shifting creates no harm, and thus the copyright owner has to demonstrate the likelihood of harm. If, however, you're building a library of music by recording it off the radio, you're no longer simply time-shifting. The distinction revolves around your statement "recording off the radio for personal use" - with only that limitation, the statement is not correct.

Under the law of Slashdot's home country, downloading games from the Internet is copyright infringement ( UMG v. MP3.com ), but dumping your own is not (17 USC 117(a)(1)). With PlayStation, if you own the authentic game disc and a PC with a CD drive, you can dump the game to an ISO. With Super NES and Genesis, if you own the Game Pak and a Retrode cartridge reader, you can dump the game to a ROM. NES is far more difficult, as the copier comes as a kit soldered into the NES, but there are also some freeware games for the NES, such as my own LJ65.

A car is copyrightable in the same manner in which a sculpture is.

It isn't. It is prohibited expressly in Section 101 of the Copyright Act. A car is a useful article, which is ineligible from copyright protection except to the extent the form can be separated from its medium. The body of a car has no value as an independent work of art except as a derivative one meant to invoke the car itself. This recursive nature bars copyright protection.

For starters, see:
http://www.bitlaw.com/copyright/unprotected.html#useful
http://www.copyright.gov/fls/fl103.html

Salient quotes:
"Copyright protection is generally not available to articles which have a utilitarian function. Examples of these types of "useful articles" would include lamps, bathroom sinks, clothing, and computer monitors. Under the Copyright Act, the only copyright protection available to these items is for "features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.""

"Designs for useful articles such as vehicular bodies, wearing apparel, household appliances, and the like are not protected by copyright."

Design is not functional, it is aesthetic and aesthetics belong to copyright.

Design is often functional. The body panels of a car are industrial design--the integration of aesthetics and engineering. They are protected by industrial design registration and NOT by copyright.

If an artist would not create the work as an independent expression of creativity, but instead is applying his craft to a functional need of a useful article, then it is not a copyrightable work. Specific exceptions have been made by statute, but they are limited to isolated cases and are not generally applicable.

Android market is not the only venue to sell/buy/download Android apps.

Just look at the list here http://en.wikipedia.org/wiki/List_of_digital_distribution_platforms_for_mobile_devices#Third-party_platforms

If an Android developer does not like the Android Market he can use another.

An example of a free App market --> http://slideme.org/
If a author doesn't like a publishing house he can shop for another, even if all are Draconian, there is nothing to prevent someone starting a new one offering better terms for authors.

But, can you point to another App Store for the iPhone? And no, Cydia doesn't count, because Apple believes jailbreaking is criminal and has DRM'ed the iPhone to hell with TPMs to prevent other channels of distribution. I know you won't believe me, so please read http://www.copyright.gov/1201/2008/responses/apple-inc-31.pdf before calling me out on this.

It's just sad how many people make up and believe false rationalizations because of something almost like Stockholm Syndrome when it comes to Apple.

Also, the copying of "the book you're writing for O'Reilly" WOULD be copyright infringement as long as you have written copyright info in it somewhere

You don't have to write any copyright info in it. The moment you write anything, it is copyrighted. You do have to register it to file suit however. Which means you can add copyright infringement to "take pictures of every page of your diary". Though you'd have to register your diary before filing that infringement suit.

After quantumplanet contradicted my post below, I spent some more time researching to see who was right. I'm still not completely sure what the legality of this case is, but it does look like authorization is an important factor.

Copyright of derivative works is granted according to 17 USC 103:

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

Since the preparation of derivative works is one of the exclusive rights granted to copyright holders, the preparation of a derivative work without authorization is unlawful. Therefore even if the crack has sufficient original content, it still wouldn't qualify for copyright protection under section 103.

So assuming that the patch is a derivative work, neither Myth nor anyone else (including Rockstar) would hold copyright on the patch. Therefore, Rockstar could legally distribute the cracked version as they hold copyright on the original and there is no protection for the patch.

In this case only way that Myth could claim copyright is if part of the patch was unrelated to the game (so it wouldn't be a derivative work), and original enough to qualify for it's own copyright. For example, logos sometimes qualify for copyright (in addition to trademark), and Myth's logo is included in the cracked version.

Where I am confused (and plan on researching some more) is surrounding derivative works that don't contain the original. I am having a hard time finding any relevant case law on whether or not a patch that does not include the original is a derivative work. I also don't know whether third parties could legally distribute the patch, derivative work or not. Since the patch doesn't contain the original work, and the patch itself is not protected by copyright, no distribution of copyright covered work it taking place. I don't see anything in copyright code specifically prohibiting the distribution of derivative works.

After quantumplanet contradicted my post below, I spent some more time researching to see who was right. I'm still not completely sure what the legality of this case is, but it does look like authorization is an important factor.

Copyright of derivative works is granted according to 17 USC 103:

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

Since the preparation of derivative works is one of the exclusive rights granted to copyright holders, the preparation of a derivative work without authorization is unlawful. Therefore even if the crack has sufficient original content, it still wouldn't qualify for copyright protection under section 103.

So assuming that the patch is a derivative work, neither Myth nor anyone else (including Rockstar) would hold copyright on the patch. Therefore, Rockstar could legally distribute the cracked version as they hold copyright on the original and there is no protection for the patch.

In this case only way that Myth could claim copyright is if part of the patch was unrelated to the game (so it wouldn't be a derivative work), and original enough to qualify for it's own copyright. For example, logos sometimes qualify for copyright (in addition to trademark), and Myth's logo is included in the cracked version.

Where I am confused (and plan on researching some more) is surrounding derivative works that don't contain the original. I am having a hard time finding any relevant case law on whether or not a patch that does not include the original is a derivative work. I also don't know whether third parties could legally distribute the patch, derivative work or not. Since the patch doesn't contain the original work, and the patch itself is not protected by copyright, no distribution of copyright covered work it taking place. I don't see anything in copyright code specifically prohibiting the distribution of derivative works.

After quantumplanet contradicted my post below, I spent some more time researching to see who was right. I'm still not completely sure what the legality of this case is, but it does look like authorization is an important factor.

Copyright of derivative works is granted according to 17 USC 103:

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

Since the preparation of derivative works is one of the exclusive rights granted to copyright holders, the preparation of a derivative work without authorization is unlawful. Therefore even if the crack has sufficient original content, it still wouldn't qualify for copyright protection under section 103.

So assuming that the patch is a derivative work, neither Myth nor anyone else (including Rockstar) would hold copyright on the patch. Therefore, Rockstar could legally distribute the cracked version as they hold copyright on the original and there is no protection for the patch.

In this case only way that Myth could claim copyright is if part of the patch was unrelated to the game (so it wouldn't be a derivative work), and original enough to qualify for it's own copyright. For example, logos sometimes qualify for copyright (in addition to trademark), and Myth's logo is included in the cracked version.

Where I am confused (and plan on researching some more) is surrounding derivative works that don't contain the original. I am having a hard time finding any relevant case law on whether or not a patch that does not include the original is a derivative work. I also don't know whether third parties could legally distribute the patch, derivative work or not. Since the patch doesn't contain the original work, and the patch itself is not protected by copyright, no distribution of copyright covered work it taking place. I don't see anything in copyright code specifically prohibiting the distribution of derivative works.

make sure they get paid for every app their stupid devices can run.

Explain the fact that Apple will be happy to host and serve your free app on their store and how it fits into your logic bomb here.

Only if it's not political, or deemed offensive. Not even if you're a Pulitzer prize winner (notice how they capitulated AFTER the shitstorm,so if you were a ordinary cartoonist, you're fucked)..

See the iPhone app graveyard(now outdated but some gems here) : http://boredzo.org/killed-iphone-apps/

The fact that you can't CHOOSE to install Flash and you can't CHOOSE to use another, more powerful browser, on the other hand - that I care about. THAT'S an asshole, anti-competitive move. Apple deserves to be smacked down for that.

You can choose. It takes effort but they can't and won't stop you from jailbreaking and installing any app you want. They will stop supporting you however, which is perfectly acceptable.

Wrong. They consider it highly illegal. Maybe you were too busy fawning over your iDevices when the news hit the net?

THis is Apple's response to EFF's request for an exemption for jailbreaking to the Copyright office:

http://www.copyright.gov/1201/2008/responses/apple-inc-31.pdf

Some excerpts:

Current jailbreak techniques now in widespread use utilize unauthorized modifications to
the copyrighted bootloader and OS, resulting in infringement of the copyrights in those
programs. For example, the current most popular jailbreaking software for the iPhone,
PwnageTool (cited by EFF in its submission), causes a modified bootloader and OS to be
installed in the iPhone, resulting in infringement of Apple’s reproduction and derivative works
rights. Specifically, in the spring of 2008, hackers were able to determine how to circumvent the
secure ROM in the iPhone and falsely sign the bootloader. Using such knowledge, a falsely
signed modified version of Apple’s bootloader was created that will fool the secure ROM into
loading it, thereby circumventing the TPM implemented by the secure ROM. PwnageTool
directly modifies a copy of the bootloader and loads it onto the iPhone. The modified bootloader
is configured so that it does not perform the authentication check of the OS, and it therefore
loads a modified version of Apple’s OS that is not signed, thereby circumventing the TPM
implemented by the bootloader. The modified OS, in turn, is configured so that it does not
perform authentication checks on application programs loaded onto the iPhone, thereby
jailbreaking the device. In sum, PwnageTool circumvents every link of Apple’s “chain of trust”
TPMs in the iPhone. More generally, as the EFF submission admits, “decryption and
modification of the iPhone firmware appears to be necessary for any jailbreak technique to
succeed on a persistent basis.”32
Jailbreaking therefore involves infringing uses of the bootloader and OS, the copyrighted
works that are protected by the TPMs being circumvented. Unauthorized derivative versions of
the bootloader and OS have been created. Copies of those infringing works have been stored on
web sites, and infringing reproductions of those works are created each time they are
downloaded through Pwnage Tool and loaded onto the iPhone.33 In addition, as discussed in
Section II.B.2 above, the jailbroken OS enables pirated copies of Apple copyrighted content and
other third party content such as games and applications to play on the iPhone, resulting in
further infringing uses of copyrighted works and diminished incentive to create those works in
the first place.
In sum, the jailbreaking of the iPhone that would be permitted by the proposed Class #1
exemption in 5A and

US law states: "protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully."

Show me one quote anywhere in the law where it says 'downloading' is illegal. It does not exist - every single law is related to distribution.

The law obviously does not use the word "downloading", it uses the broader term "reproduce".Title 17 Section 106 (1)
106. Exclusive rights in copyrighted works38
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;

And here's is a court ruling that explicitly states on page 6 that any question about the distribution-infringement angle is irrelevant because of "the district court's finding that she had infringed Plaintiff's copyrights by downloading, and hence reproducing, the audio files."

There ya go. A court ruling explicitly stating downloading is legally considered to be reproduction, explicitly stating downloading is legally infringement.

Forgot about what is logical, forget how the law should work, this discussion is about what current existing law says and how current existing law works. The fact is that the law uses imposes an extremely broad definition for infringement and has an extremely strict application of copying. Hell, I can dig up a case for you where a court ruled that it was copyright infringement for someone to run software because running the software copied the program into RAM. Yes, I agree with you that that is an idiotic result, but that is how copyright law works. And as a result of that court ruling the US Congress had to pass a new law, Title 17 Section 117, which creates a special case making copying non-infringement when you install software you bought, and to also make it non-infringement when you run that software.

Forget about reasonable, forget about rational, forget about any sort of "should". The REALITY is that copyright law takes the concept of copying so strictly that Congress had to pass a specific law allowing you to install and freaking RUN a program you bought. Copyright law is so fucked up that if you try to download a perfectly legal file and some other guilty party sends you some different infringing file, that under the law you are still technically and infringer, and in order to deal with this situation the law creates something called Innocent Infringer status to cover it. And the law is so fucked up that when you do prove your Innocent Infringer status in that situation, the law declared that the judge may, if he feels like it, lower the statutory minimum damages you have to pay from the standard $750 down to a $200 minimum. Copyright law is so fucked up that the NET act technically makes virtually all P2P infringement into a felony crime subject to several years in prison. Copyright law is so fucked up that if you buy a DVD and then write your own media player software to view it you are a felon under the DMCA and subject to a 5 years felony sentence. Copyright law is so fucked up that the AHRA (Audio Home Recording Act) forced DAT (Digital Audio Tape) manufactures to so fuck-up DAT devices that people couldn't make copies of recordings of their own band.... note that this was prohibiting the very COPYRIGHT HOLDERS from making copies of their own tapes of their own bands. Copyright law is so fucked up that the only reason MP3 players survived on the market is because they slipped through a loophole in the AHRA, the first MP3 players all came with idiotic little software applications just to ensure they qualified as "general computing devices" rather than as "audio recording devices". Copyright law is so fucked up that the Supreme Court was one vote away from making VCRs illegal in the 5 vs 4 Betamax case. Copyright law is so fucked up that not a single work has falling into the public domain in the last decade and not a single work will fall into the public d

Actually - it IS NOT illegal to download anything

Sure, keep telling yourself that. Meanwhile, back in reality, we are under US copyright law (in the US, obviously).

We also have case law showing that your argument does not stand up in court. From the judgement by the appellate court, we have this lovely quote:

As [the defendant] tells the tale, downloading on a try-before-you-buy basis is good advertising for copyright proprietors, expanding the value of their inventory. The Supreme Court thought otherwise in Grokster, with considerable empirical support.

I'm not talking about morality here, I'm talking about the legality of the matter. You can feel free to try that defense if you ever end up in court over this, but you will lose. Get it?

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.