Cute. Would it be possible to fill the case with something heavy that still lets the computer work? (I imagine the biggest problem is finding a material that is nonconductive to electricity but doesn't cause the chips to overheat.)
No difference. Copying an entire magazine article likely isn't fair use either. The enumerated (inclusive, not exclusive) factors set forth in the Copyright Act [U.S.] are:
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; [In both examples, copying for purposes of academic research is more likely to be fair use than copying for entertainment purposes.]
The nature of the copyrighted work; [for example, it's easier to excerpt and paraphrase writing than music, but see below.]
The amount and substantiality of the portion used in relation to the copyrighted work as a whole; [In both cases the entirety of the work is taken. The work is the individual track or article, not the anthology--though if the arrangement has sufficient creativity it might be separately protected.]
The effect of the use upon the potential market for or value of the copyrighted work. [If a magazine article is easily copied, it is more difficult for the author to resell the article or for the publisher to sell the magazine. Same goes for audio media.]
Not quite. I can get any music that you can find in your local record store, music that someone somewhere along the line was able to buy. You can also get the occasional bootleg or self-released tune.
What I can't easily get are niche artists, since the genres I'm interested in aren't the ones that happen to be popular with adolescents (e.g., techno and its various indistinguishable subgenres, testosterone rock).
The thing about a library is that it's based in the "first sale doctrine" that allows you to do what you want--resell it, lend it, destroy it, pretty much anything but copy the data onto something else--with the physical copy (book, CD, whatever) you bought. The first sale doctrine doesn't apply here.
You aren't allowed to go into a library and copy a book. (Yeah, I know that there are photocopiers in libraries, but those are intended for partial copies that fall under the "fair use" exemption. Most Napster-style music sharing is not fair use.)
Won't somebody think of the children?
on
Eco-Terrorism
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· Score: 1
The problem with this argument is that you're postulating the continuance of life as an absolute good. Once you do that, any action can be justified by claiming it will further that absolute good.
Still, an okay attempt at playing devil's advocate.
Surely there's more to say about this than "oh, just use [insert name of file-sharing program here] to get pirated music." (Yes, Slashdot Language Academy, I know it's not like piracy on the high seas, but lots of words have dissimilar definitions in different contexts.)
That said, I haven't used Napster in a while, but I hope they take an approach that lets artists easily opt to have their works shared. It would be a shame if Napster stopped being a distribution mechanism for artists not signed with a major recording company. Though it wasn't very good for finding artists you'd never heard of, it was good for finding the ones who didn't show up in record stores.
Hells no, you shouldn't be able to get a free ride on the reputation of another company. If you want to use fuckmsn.com to speak out against MSN, that's protected speech. If you want to use fuckmsn.com to put up a bunch of banner ads that have nothing to do with MSN, that could easily be a trademark violation (especially if any of the banners are from competitors with Microsoft).
How can it be a work for hire if you're paying them?
Reason #1: because they're telling you what to write. "Work for hire" has nothing to do with money and everything to do with authorial control
Reason #2: because the Copyright Act says so:
A "work made for hire" is--
(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. [boldface not in original]
Not sued yet == "OK"
Innocent until proven guily, remember?
You're wrong. Here's why:
The fact that someone hasn't sued you yet doesn't mean that they can't at any time in the future (barring laches, statutes of limitations, etc.).
The fact that party A didn't sue party B for an action may not mean that party A can't successfully sue you for a similar action. (There are very few exceptions to this, genericization of trademarks being the best known.)
The fact that party A didn't sue party B for an action certainly has no bearing on whether party C can successfully sue you for a similar action. (This was the point I was responding to--the "I saw someone else do it, so it must be legal" defense.)
"Innocent until proven guilty" applies to criminal cases, not civil. The standard in a civil case (such as a trademark dispute) is a simple preponderance of evidence.
The precedent that's set? If you register a domain name in bad faith, you can't weasel out of a lawsuit by throwing up a faux "political protest" on the page and claiming First Amendment protection thereby.
But they do. It's just that the anarcho-libertarian crowd has a short-sighted view of "monetary or physical damage" (at least when it's someone else's).
Typo sites cause monetary damage to the trademark holders because they take away hits. They cause monetary damage to the consumers whose time and resources are wasted. They cause monetary damage to society because they increase the transaction costs required to create informed consumers.
Camel and Kamel are owned by the same company. Don't know about the others, but if they're not and they haven't let too much time go by then they could have sued even before this decision. (Maybe they've decided it's not worth the time or money.)
So does his mean that if a company that registers a domain name (let's say "bigcorp.com") can deny other poeple from having a domain name that is made up of the letters of the "bigcorp.com" domain so that ibgcorp.com, bgicorp.com, and all the other anagrams would be illegal to use for a company selling similar services or products to bigcorp?
No (at least, not under the law). Anagrams aren't all confusingly similar: cgiprob.com isn't going to be mistaken for bigcorp.com. If there's no association with the mark, there's no infringement.
It's distinctive perhaps, but does 700,000 hits/month qualify as being famous? And famous to what people? I view this as a weak link in the case because being famous is very relative and the application of the ACPA relies on this fame. For instance, I think The Onion or Slashdot is "famous", but considering virtually everyone where I work (a software company) has never heard of them, is that to say they aren't famous? I surely can't decide one way or the other.
This is elaborated on in section 43(c)(1) of the Lanham Act:
In determining whether a mark is distinctive and famous, a court may consider factors such as, but not limited to--
(A) the degree of inherent or acquired distinctiveness of the mark;
(B) the duration and extent of use of the mark in connection with the goods or services with which the mark is used;
(C) the duration and extent of advertising and publicity of the mark;
(D) the geographical extent of the trading area in which the mark is used;
(E) the channels of trade for the goods or services with which the mark is used;
(F) the degree of recognition of the mark in the trading areas and channels of trade of the mark's owner and the person against whom the injunction is sought;
(G) the nature and extent of use of the same or similar marks by third parties; and
(H) whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register.
Ok, here the ambiguity is obvious. They conclude that the domain names are "confusingly similar," which I agree with, but where can the line between "confusingly similar" and "not similar enough" be drawn? I have no real opinion on that answer, but the question definitely begs to be asked.
Likelihood of confusion takes up a good chunk of my trademarks casebook. Most trademark cases use survey evidence to show that consumers are actually confused. In the absence of evidence of actual confusion, the courts draw the line to fit the equities of the case. That, after all, is their job.
That's not cybersquatting, and not what was going on in the case. As far as I can tell, Mr. Salte is making bona fide use of the domain name and not using it in a way that would infringe on the Slate mark. What Mr. Zuccarini was doing was taking misspellings of Mr. Shields' domain name and trying to sell them to Mr. Shields--classic bad faith cybersquatting in violation of the ACPA.
That's not domain squatting, unless you have more information than you're sharing. Buying a name nobody else is using as a trademark with the intent to use it isn't squatting, even if you later decide you want it.
Answering stupid questions
on
Protein Music
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· Score: 1
Since this article has "music" in the title, lots of people have brought up the RIAA and copyright law, asking things like "who owns the music?", "will I have to pay royalties on DNA?" and "if it's an NSync song, can I be sued?" IANAL, but I have a pretty good grasp on the state of the law.
Just because the DNA came from your body doesn't mean the music is automatically yours. See Moore v. Regents of the University of California, which held that a development based on a removed spleen is not the property of the splenectomy patient.
Eben Moglen points out in "Anarchism Triumphant" that all information can be reduced to numbers; from there it's obvious that it can be represented in base four or base twenty. While Moglen tries to use this to attack IP law, asking how one number can be copyrighted and another patented and another free for use, others have correctly pointed out that what's being protected is not the number, but the number plus the translation scheme. In this case, DNA is not copyrightable without some additional work of authorship,
Copyright protects only against copying, not against independent creation. If someone's DNA happened to sound like a copyrighted song, a plaintiff would pretty much have to show that the translation scheme was created with the intent to infringe. DNA altered to produce a copyrighted tune would also infringe. Ordinary DNA with a previously developed translation scheme would not infringe, because it would be obvious that any overlap was pure coincidence. (However, calling attention to that overlap in the market would probably be trademark infringement.)
Slashdot Mirror
Cute. Would it be possible to fill the case with something heavy that still lets the computer work? (I imagine the biggest problem is finding a material that is nonconductive to electricity but doesn't cause the chips to overheat.)
"Ultimate" does mean "final."
No difference. Copying an entire magazine article likely isn't fair use either. The enumerated (inclusive, not exclusive) factors set forth in the Copyright Act [U.S.] are:
Um, no. It would just make it a common violation of the law. "Everybody else does it" is not, and has never been, a valid defense to a lawsuit.
Not quite. I can get any music that you can find in your local record store, music that someone somewhere along the line was able to buy. You can also get the occasional bootleg or self-released tune.
What I can't easily get are niche artists, since the genres I'm interested in aren't the ones that happen to be popular with adolescents (e.g., techno and its various indistinguishable subgenres, testosterone rock).
Chances to do what? Bleeding-edge music was around long before Napster, and will continue to be around no matter what happens to online music sharing.
The thing about a library is that it's based in the "first sale doctrine" that allows you to do what you want--resell it, lend it, destroy it, pretty much anything but copy the data onto something else--with the physical copy (book, CD, whatever) you bought. The first sale doctrine doesn't apply here.
You aren't allowed to go into a library and copy a book. (Yeah, I know that there are photocopiers in libraries, but those are intended for partial copies that fall under the "fair use" exemption. Most Napster-style music sharing is not fair use.)
The problem with this argument is that you're postulating the continuance of life as an absolute good. Once you do that, any action can be justified by claiming it will further that absolute good.
Still, an okay attempt at playing devil's advocate.
Surely there's more to say about this than "oh, just use [insert name of file-sharing program here] to get pirated music." (Yes, Slashdot Language Academy, I know it's not like piracy on the high seas, but lots of words have dissimilar definitions in different contexts.)
That said, I haven't used Napster in a while, but I hope they take an approach that lets artists easily opt to have their works shared. It would be a shame if Napster stopped being a distribution mechanism for artists not signed with a major recording company. Though it wasn't very good for finding artists you'd never heard of, it was good for finding the ones who didn't show up in record stores.
Hells no, you shouldn't be able to get a free ride on the reputation of another company. If you want to use fuckmsn.com to speak out against MSN, that's protected speech. If you want to use fuckmsn.com to put up a bunch of banner ads that have nothing to do with MSN, that could easily be a trademark violation (especially if any of the banners are from competitors with Microsoft).
Reason #1: because they're telling you what to write. "Work for hire" has nothing to do with money and everything to do with authorial control
Reason #2: because the Copyright Act says so:
That's not domain squatting, unless you have more information than you're sharing.
You're wrong. Here's why:
The precedent that's set? If you register a domain name in bad faith, you can't weasel out of a lawsuit by throwing up a faux "political protest" on the page and claiming First Amendment protection thereby.
But they do. It's just that the anarcho-libertarian crowd has a short-sighted view of "monetary or physical damage" (at least when it's someone else's).
Typo sites cause monetary damage to the trademark holders because they take away hits. They cause monetary damage to the consumers whose time and resources are wasted. They cause monetary damage to society because they increase the transaction costs required to create informed consumers.
Not sued yet != "OK".
Nobody made that claim. But fuckmsn.com better be used to say something about MSN, and not just cash in on consumer opinion.
Camel and Kamel are owned by the same company. Don't know about the others, but if they're not and they haven't let too much time go by then they could have sued even before this decision. (Maybe they've decided it's not worth the time or money.)
No (at least, not under the law). Anagrams aren't all confusingly similar: cgiprob.com isn't going to be mistaken for bigcorp.com. If there's no association with the mark, there's no infringement.
These are basic elements of trademark law.
This is elaborated on in section 43(c)(1) of the Lanham Act:
Likelihood of confusion takes up a good chunk of my trademarks casebook. Most trademark cases use survey evidence to show that consumers are actually confused. In the absence of evidence of actual confusion, the courts draw the line to fit the equities of the case. That, after all, is their job.
"White House" isn't a trademark. There's your distinction.
That's not cybersquatting, and not what was going on in the case. As far as I can tell, Mr. Salte is making bona fide use of the domain name and not using it in a way that would infringe on the Slate mark. What Mr. Zuccarini was doing was taking misspellings of Mr. Shields' domain name and trying to sell them to Mr. Shields--classic bad faith cybersquatting in violation of the ACPA.
That's not domain squatting, unless you have more information than you're sharing. Buying a name nobody else is using as a trademark with the intent to use it isn't squatting, even if you later decide you want it.
Since this article has "music" in the title, lots of people have brought up the RIAA and copyright law, asking things like "who owns the music?", "will I have to pay royalties on DNA?" and "if it's an NSync song, can I be sued?" IANAL, but I have a pretty good grasp on the state of the law.
Just because the DNA came from your body doesn't mean the music is automatically yours. See Moore v. Regents of the University of California, which held that a development based on a removed spleen is not the property of the splenectomy patient.
Eben Moglen points out in "Anarchism Triumphant" that all information can be reduced to numbers; from there it's obvious that it can be represented in base four or base twenty. While Moglen tries to use this to attack IP law, asking how one number can be copyrighted and another patented and another free for use, others have correctly pointed out that what's being protected is not the number, but the number plus the translation scheme. In this case, DNA is not copyrightable without some additional work of authorship,
Copyright protects only against copying, not against independent creation. If someone's DNA happened to sound like a copyrighted song, a plaintiff would pretty much have to show that the translation scheme was created with the intent to infringe. DNA altered to produce a copyrighted tune would also infringe. Ordinary DNA with a previously developed translation scheme would not infringe, because it would be obvious that any overlap was pure coincidence. (However, calling attention to that overlap in the market would probably be trademark infringement.)
Mea culpa.