That Z's lawyers are trying to get the case dismissed on statute of limitations grounds has nothing to do with the strength of the evidence or case. It's merely one step in the litigation process. If it isn't thrown out, they'll try other similar things, like removing to federal court, failing to state a claim, transferring venue, summary judgment (multiple times surely), etc, etc.
There are two kinds of circumstantial evidence that are useful for figuring out if D copied P. (1) Evidence suggesting D had access. (2) Evidence showing the degree of similarity between two works.
Evidence of access requires a reasonable opportunity (more than a bare possibility) to view or copy P's work. It cannot be inferred through mere speculation or conjecture. To do this, you might establish a particular chain of events between P's work and D's access to that work (i.e. tell a story). You might also establish that P's work is widely disseminated. For music, look at record sales, radio performances, sheet music sales. Additionally, subconscious copying has been accepted since it was first embraced in 1924 (memory as a trick is not an excuse). But this is more a feature of saying, "you had to have access because it was so popular, even if you don't realize you don't remember." I think this is something we can all buy. I know I say things all the time that are trademarked catchphrases because they've simply seeped into my thoughts...damn talented marketers.
Second, striking similarity can be so great that proof of access is presumed and need not be proven. The better the story you tell about access, the less you have to show striking similarity. Likewise, the more strikingly similar, the less you have to tell an access story. How this is handled varies by circuit, which I can get into if you'd really like. But generally, it’s not similarity, per se, that establishes access; rather, similarity of two works tends to prove access in light of the nature of the works, like the particular musical genre involved, or other circumstantial evidence of access. Here you might look for unexpected departures from the norm, or error. And like you said, lots of expert testimony is useful here - but why shouldn't it be? If I'm comparing two songs, I want an expert to tell me whether the two's notes are so similar that there had to be copying.
Basic infringement: (P is plaintiff, D is defendant)
1) P must allege and prove ownership of a valid copyright.
2) P must prove that D violated one of the exclusive rights reserved to copyright owners. One can only violate if there is copying-in-fact (or probative copying). This means
that you are meeting the prima facie hurdle, rather than coincidentally coming up with the same thing. As such, P must prove that D obtained the protected expression and used that expression in their work (this is key with respect to your statement: there's a balance between access and similarity for proving copying-in-fact.). The analysis moves to the 106 rights only after copying in fact is proved. For example: "D copied from P's copyrighted work and the copying went so far as to constitute improper appropriation."
No, copyright does not apply to sports scores. They are unprotected facts according to the Second Circuit (and to my knowledge, no other circuit has ruled differently). The S.D.N.Y. had ruled that the NY State law that protected sports scores was not preempted by the Copyright Act. But the Second Circuit overruled this finding.
The biggest problem with this issue is how incredibly uneducated people are - especially on this website. One person posts one thing that's wrong, and everybody latches on because it makes copyright look stupid.
As far as the registration formality, introducing (rather, it's really going back to pre-Berne/1989 copyright) formalities [i]like[/i] registration just aids the big businesses and their representatives more than you'd want. Not requiring certain formalities allows the little guy to still enforce his rights, if they so choose, while not requiring they know about registration either.
You're focusing too narrowly on the analogy. You said "Lock-in = removal of choice." Your latest argument is that Linux does not lock you in because you can develop applications and release them with non-GPL licenses.
The choice has not been removed there. The choice has been removed for things the GPL license virally attaches itself to. If you want to change Linux at all and distribute it, then you have to release it under the GPL. Quite basically this is the "removal of choice."
You cannot choose whether the GPL restrictions apply there.
Instead of just playing coy, I'll get straight to my point. I find it entertaining that you're bent on ripping Apple and the iPhone/Pad/Pod for being "locked-in" when it commits you to shitting on Linux too.
For starters, copyleft licensing like the GPL exists because a copyright regime exists that extends property rights to software expression. Copylefted software requires these rights exist so that the copyright holder can legally give some of these rights away. Without owning the copyright to their software, authors cannot make a conscious decision to surrender certain copyright rights. After all, one cannot legally give away what one does not have.
So it makes no sense to say GPL is restrictive because of copyright law. Linux is restrictive because of the GPL, which uses copyright law. Linux could be in the public domain, but then you wouldn't get to control distribution, reproduction, or derivative works. Linux removes choice because it uses GPL rather than declaring it to the public domain.
No, your world falls apart without copyright. But rather than go off onto that tangent, would you like to address my point or continue with your red herring?
The right to free speech is not unlimited. Since it is commercial speech, any law abridging the speech needs to pass intermediate scrutiny - i.e. the law must further an important government interest in a way that is substantially related to that interest. So if the law bans the interest (protecting the health of citizens is important) without going too far (the narrower the better), it would fly.
The real issue is getting the law passed. As far as Congress justifying the law, the commerce clause would easily serve Congress. But special interests could hold it back.
Ok I just read 17 USC 120(b). That's exactly what I was looking for. For anybody else who reads this, here's what 120(b) gets at:
It is actually an explicit statutory exemption to the derivative work right (17 USC 106(2)). That is, it says the owner of the embodiment (the architectural structure) does not have to consult the copyright owner to alter the structure. So rather than an implied license, it's just a straight-up limitation on the author's (architect's) rights.
Now, I would argue that 120(b) also exempts the blue print modification, so that changing the floor plans for zoning or whatever would not violate the 106(2) right because of 120(2).
My argument goes something like this: If a building is just a different medium for blueprints, and medium does not matter, Bridgeman v. Corel (1999) ("Production of a work of art in a different medium cannot by itself constitute the originality required for copyright protection.") (this case is from the S.D.N.Y., but is representative of copyright law in all federal jurisdictions), then an exemption for creating a derivative work for the owner of the building also gives them the exemption for that new work in other mediums like blue prints.
Not sure if this would fly, but I think it's likely a fair use anyway for zoning/town council meetings.
Wow that last post got screwed up. I hate how small these text boxes are.
Well, that's quite a bit different than what you said above. I understand the 106 rights fine. I was looking for a court case or statutory exemption that provides that "the copyright owner [of the home] should be consulted" when you want to modify the house.
If you meant modify the floor plan, then I would not be surprised. I would be surprised if any court found that you need permission to modify the house. This could mean something as small as painting, or as large as an addition. Both are technically derivative works, and I would assume that the original contract comes with an implied license for derivative works for this (the new home the contract is about) single embodiment of the copyrighted work (the floor plan and the construction [which I think may also be a derivative work of the floor plan]), which is assignable at the licensee's exclusive option.
Well, that's quite a bit different than what you said above. I understand the 106 rights fine. I was looking for a court case or statutory exemption that provides that "the copyright owner [of the home] should be consulted" when you want to modify the house. If you meant modify the floor plan, then I would not be surprised. I would be surprise if any court found that you need permission to modify the house (this could mean something as small as painting, or as large as an addition. both are technically derivative works, and I would assume that the original contract comes with an implied license for derivative works for this [the new home the contract is about] single embodiment of the copyrighted work (the floor plan and the construction [which I think may also be a derivative work of the floor plan]), which is assignable at the licensee's exclusive option.
While I had not read that story, it doesn't materially change my post. I just read the case (2010 WL 653322 - it's not available in a federal reporter yet), and here is the jist of why my original post stands and your analogy is a false analogy.
To start, you said that "in order to be bound by [the copyright notice)", "you don't need to have actually seen a copyright notice." This is always true. It has nothing to do with the ubiquity of notice. After the US signed Berne, we eliminated formalities like notice, and - as I said - "Copyright notice is not necessary to somebody owning a copyright and enforcing the associated rights."
This is different from the ToS because ToS are contractual. Copyright is statutory. That is why ubiquity matters to ToS. We should know better that many sites have ToS, so we are bound. That said, I don't think every jurisdiction is so liberal with ToS application.
In any case, for copyright, it is not that "we should know better, so we're bound by copyright." This is why your analogy ("except. ..") to Maverick Recording Co. v. Harper is a non-starter.
And even false analogy aside, you misunderstood what happened in the case. Harper was trying to assert the innocent infringer defense in order to lower damages. But " 402(d) . . . gives publishers the option to trade the extra burden of providing copyright notice for absolute protection against the innocent infringer defense."
So what happened was that Harper made out a prima facie case for innocent infringement according to the district court, thus (as an issue of fact) the matter would be left to the jury. However, the court of appeals said, "hold on, even if you make the prima facie case ( 405(b)) the publisher has an absolute defense."
Harper lost because of 402(d), not because notice is ubiquitous. 402(d) would apply even if nobody knew that CDs had copyright notices on them. Once the notice is on the original, it's good to go.
I think you're mixing up two distinct issues here. Copyright notice is not necessary to somebody owning a copyright and enforcing the associated rights. It has nothing to do with "the ubiquity of the notice."
The eminent domain argument could be interesting, though I don't think it's ever been applied to intellectual property before - and that's the property at issue here, not the memorial. I can't see a court okeying that, but it's not outside the realm of possibility. Yet that doesn't really help in the way you'd like it to because the gov't would still need to pay the author just compensation.
Where this analogy breaks down is that ideas are not copyrightable. A work must be fixed in a tangible medium of expression. And then it's just the expression that gets a copyright. So even if the business plan were written down, the writing is the only thing copyrighted - not the idea.
Actually, one of the reasons there are so many reversals for fair use is that fair use is a mixed matter of fact and law, the lower court's holding is open to full review. Compared to the other standards of review, along with the subjective nature of fair use, this will result in more reversals.
You entirely sidestepped my question. Should copyright be used to hold up authors of works people do not determine to be valuable?
As far as Creative Commons licenses go, do you understand that CC has no power without copyright? That the license only works because copyright provides exclusive rights to authors, and it is these rights that the CC licenses out to others? So "moving in that direction" makes no sense.
Slashdot Mirror
That Z's lawyers are trying to get the case dismissed on statute of limitations grounds has nothing to do with the strength of the evidence or case. It's merely one step in the litigation process. If it isn't thrown out, they'll try other similar things, like removing to federal court, failing to state a claim, transferring venue, summary judgment (multiple times surely), etc, etc.
Frankly, you have no idea what you're talking about. http://finance.yahoo.com/q/ks?s=YHOO+Key+Statistics
There are two kinds of circumstantial evidence that are useful for figuring out if D copied P. (1) Evidence suggesting D had access. (2) Evidence showing the degree of similarity between two works.
Evidence of access requires a reasonable opportunity (more than a bare possibility) to view or copy P's work. It cannot be inferred through mere speculation or conjecture. To do this, you might establish a particular chain of events between P's work and D's access to that work (i.e. tell a story). You might also establish that P's work is widely disseminated. For music, look at record sales, radio performances, sheet music sales. Additionally, subconscious copying has been accepted since it was first embraced in 1924 (memory as a trick is not an excuse). But this is more a feature of saying, "you had to have access because it was so popular, even if you don't realize you don't remember." I think this is something we can all buy. I know I say things all the time that are trademarked catchphrases because they've simply seeped into my thoughts...damn talented marketers.
Second, striking similarity can be so great that proof of access is presumed and need not be proven. The better the story you tell about access, the less you have to show striking similarity. Likewise, the more strikingly similar, the less you have to tell an access story. How this is handled varies by circuit, which I can get into if you'd really like. But generally, it’s not similarity, per se, that establishes access; rather, similarity of two works tends to prove access in light of the nature of the works, like the particular musical genre involved, or other circumstantial evidence of access. Here you might look for unexpected departures from the norm, or error. And like you said, lots of expert testimony is useful here - but why shouldn't it be? If I'm comparing two songs, I want an expert to tell me whether the two's notes are so similar that there had to be copying.
This is misleading.
Basic infringement: (P is plaintiff, D is defendant)
1) P must allege and prove ownership of a valid copyright.
2) P must prove that D violated one of the exclusive rights reserved to copyright owners. One can only violate if there is copying-in-fact (or probative copying). This means that you are meeting the prima facie hurdle, rather than coincidentally coming up with the same thing. As such, P must prove that D obtained the protected expression and used that expression in their work (this is key with respect to your statement: there's a balance between access and similarity for proving copying-in-fact.). The analysis moves to the 106 rights only after copying in fact is proved. For example: "D copied from P's copyrighted work and the copying went so far as to constitute improper appropriation."
No, copyright does not apply to sports scores. They are unprotected facts according to the Second Circuit (and to my knowledge, no other circuit has ruled differently). The S.D.N.Y. had ruled that the NY State law that protected sports scores was not preempted by the Copyright Act. But the Second Circuit overruled this finding.
The biggest problem with this issue is how incredibly uneducated people are - especially on this website. One person posts one thing that's wrong, and everybody latches on because it makes copyright look stupid.
As far as the registration formality, introducing (rather, it's really going back to pre-Berne/1989 copyright) formalities [i]like[/i] registration just aids the big businesses and their representatives more than you'd want. Not requiring certain formalities allows the little guy to still enforce his rights, if they so choose, while not requiring they know about registration either.
You're focusing too narrowly on the analogy. You said "Lock-in = removal of choice." Your latest argument is that Linux does not lock you in because you can develop applications and release them with non-GPL licenses.
The choice has not been removed there. The choice has been removed for things the GPL license virally attaches itself to. If you want to change Linux at all and distribute it, then you have to release it under the GPL. Quite basically this is the "removal of choice."
You cannot choose whether the GPL restrictions apply there.
Instead of just playing coy, I'll get straight to my point. I find it entertaining that you're bent on ripping Apple and the iPhone/Pad/Pod for being "locked-in" when it commits you to shitting on Linux too.
For starters, copyleft licensing like the GPL exists because a copyright regime exists that extends property rights to software expression. Copylefted software requires these rights exist so that the copyright holder can legally give some of these rights away. Without owning the copyright to their software, authors cannot make a conscious decision to surrender certain copyright rights. After all, one cannot legally give away what one does not have.
So it makes no sense to say GPL is restrictive because of copyright law. Linux is restrictive because of the GPL, which uses copyright law. Linux could be in the public domain, but then you wouldn't get to control distribution, reproduction, or derivative works. Linux removes choice because it uses GPL rather than declaring it to the public domain.
No, your world falls apart without copyright. But rather than go off onto that tangent, would you like to address my point or continue with your red herring?
Linux has lock-in too, but to an even larger extreme. The GPL license is a bitch.
China hits like a girl.
Risk.
The right to free speech is not unlimited. Since it is commercial speech, any law abridging the speech needs to pass intermediate scrutiny - i.e. the law must further an important government interest in a way that is substantially related to that interest. So if the law bans the interest (protecting the health of citizens is important) without going too far (the narrower the better), it would fly.
The real issue is getting the law passed. As far as Congress justifying the law, the commerce clause would easily serve Congress. But special interests could hold it back.
Ok I just read 17 USC 120(b). That's exactly what I was looking for. For anybody else who reads this, here's what 120(b) gets at:
It is actually an explicit statutory exemption to the derivative work right (17 USC 106(2)). That is, it says the owner of the embodiment (the architectural structure) does not have to consult the copyright owner to alter the structure. So rather than an implied license, it's just a straight-up limitation on the author's (architect's) rights.
Now, I would argue that 120(b) also exempts the blue print modification, so that changing the floor plans for zoning or whatever would not violate the 106(2) right because of 120(2).
My argument goes something like this: If a building is just a different medium for blueprints, and medium does not matter, Bridgeman v. Corel (1999) ("Production of a work of art in a different medium cannot by itself constitute the originality required for copyright protection.") (this case is from the S.D.N.Y., but is representative of copyright law in all federal jurisdictions), then an exemption for creating a derivative work for the owner of the building also gives them the exemption for that new work in other mediums like blue prints.
Not sure if this would fly, but I think it's likely a fair use anyway for zoning/town council meetings.
Wow that last post got screwed up. I hate how small these text boxes are.
Well, that's quite a bit different than what you said above. I understand the 106 rights fine. I was looking for a court case or statutory exemption that provides that "the copyright owner [of the home] should be consulted" when you want to modify the house.
If you meant modify the floor plan, then I would not be surprised. I would be surprised if any court found that you need permission to modify the house. This could mean something as small as painting, or as large as an addition. Both are technically derivative works, and I would assume that the original contract comes with an implied license for derivative works for this (the new home the contract is about) single embodiment of the copyrighted work (the floor plan and the construction [which I think may also be a derivative work of the floor plan]), which is assignable at the licensee's exclusive option.
Well, that's quite a bit different than what you said above. I understand the 106 rights fine. I was looking for a court case or statutory exemption that provides that "the copyright owner [of the home] should be consulted" when you want to modify the house. If you meant modify the floor plan, then I would not be surprised. I would be surprise if any court found that you need permission to modify the house (this could mean something as small as painting, or as large as an addition. both are technically derivative works, and I would assume that the original contract comes with an implied license for derivative works for this [the new home the contract is about] single embodiment of the copyrighted work (the floor plan and the construction [which I think may also be a derivative work of the floor plan]), which is assignable at the licensee's exclusive option.
While I had not read that story, it doesn't materially change my post. I just read the case (2010 WL 653322 - it's not available in a federal reporter yet), and here is the jist of why my original post stands and your analogy is a false analogy.
.") to Maverick Recording Co. v. Harper is a non-starter.
To start, you said that "in order to be bound by [the copyright notice)", "you don't need to have actually seen a copyright notice." This is always true. It has nothing to do with the ubiquity of notice. After the US signed Berne, we eliminated formalities like notice, and - as I said - "Copyright notice is not necessary to somebody owning a copyright and enforcing the associated rights."
This is different from the ToS because ToS are contractual. Copyright is statutory. That is why ubiquity matters to ToS. We should know better that many sites have ToS, so we are bound. That said, I don't think every jurisdiction is so liberal with ToS application.
In any case, for copyright, it is not that "we should know better, so we're bound by copyright." This is why your analogy ("except. .
And even false analogy aside, you misunderstood what happened in the case. Harper was trying to assert the innocent infringer defense in order to lower damages. But " 402(d) . . . gives publishers the option to trade the extra burden of providing copyright notice for absolute protection against the innocent infringer defense."
So what happened was that Harper made out a prima facie case for innocent infringement according to the district court, thus (as an issue of fact) the matter would be left to the jury. However, the court of appeals said, "hold on, even if you make the prima facie case ( 405(b)) the publisher has an absolute defense."
Harper lost because of 402(d), not because notice is ubiquitous. 402(d) would apply even if nobody knew that CDs had copyright notices on them. Once the notice is on the original, it's good to go.
Do you have a citation to an example of this ever happening?
I think you're mixing up two distinct issues here. Copyright notice is not necessary to somebody owning a copyright and enforcing the associated rights. It has nothing to do with "the ubiquity of the notice."
The eminent domain argument could be interesting, though I don't think it's ever been applied to intellectual property before - and that's the property at issue here, not the memorial. I can't see a court okeying that, but it's not outside the realm of possibility. Yet that doesn't really help in the way you'd like it to because the gov't would still need to pay the author just compensation.
Except you cannot assign somebody else's rights. Period.
Where this analogy breaks down is that ideas are not copyrightable. A work must be fixed in a tangible medium of expression. And then it's just the expression that gets a copyright. So even if the business plan were written down, the writing is the only thing copyrighted - not the idea.
"free concert" = profiTTT from tickets
Actually, one of the reasons there are so many reversals for fair use is that fair use is a mixed matter of fact and law, the lower court's holding is open to full review. Compared to the other standards of review, along with the subjective nature of fair use, this will result in more reversals.
You entirely sidestepped my question. Should copyright be used to hold up authors of works people do not determine to be valuable?
As far as Creative Commons licenses go, do you understand that CC has no power without copyright? That the license only works because copyright provides exclusive rights to authors, and it is these rights that the CC licenses out to others? So "moving in that direction" makes no sense.