Most of these problems exist without these rules. These rules assume that you're already following the law when it comes to records and records retention. SarbOx, medical, privacy etc. and such for private companies, open records, public records, FERPA, etc. for schools and government organizations.
And the rules have provisions for when things aren't completely destroyed. That information can be recovered, if people are willing to pay to discover that information.
You don't have to log everything. You have to abide by your records retention policies. You are required to log some things, by records laws, but not by the rules of civil procedure. The only situation where you might have to log more than you ordinarily would is in the case of a litigation hold, when you're party to a lawsuit.
If you have the potential to be a litigant in a federal case, then they matter somewhat. More to the point, though, is that state laws generally follow the federal lead on rules of evidence, so expect most states to offer similar rules.
The Federal Rules of Evidence aren't quite as unreasonable as people seem to think. IMHO, the article is overstating the effects of the newly implemented rules. Important things to remember are A) Have a records retention policy, and B) follow that records retention policy. If you're a public school, you probably have a records retention policy already. Many schools don't follow those policies for electronic records like they're supposed to, but there's very likely one that exists. Applying records retention policies to electronic media has been a problem with many public schools and many government organizations. It doesn't necessarily require going through one of those vendors or using those tools- it does require planning.
IT people were definitely involved in the creation of these rules.
I'm not sure what you mean that nothing is allowed to be found- that's what the discovery rules address. The new rules of evidence provide ways to share or shift costs of finding that information. In the past, you would have to pay those costs. With the new rules, either those costs are shared, or if it truly would be very burdensome to recover that information, the company seeking that information could pay those costs.
They are avoiding the DMCA issue by avoiding content- but are they really? It seems a bit problematic to say "we're doing it for bandwidth reasons" but then point out all of the copyright issues involved.
University counsel I've spoken to are concerned about what students do on the university network. I've seen IT people take down network access for bandwidth reasons or for other reasons ("commercial" activity) to avoid content policing, but it really seems like they are policing content. Of course, universities often try to limit their liability for what students do as much as possible. ^^;
There's no free lunch, but there are certainly legitimate uses. I've had students use peer to peer applications in my course. I've also had to deal with DMCA notices that students receive in the course of my work in IT at a university. Universities might very well need to make business decisions, but the business of universities is not necessarily the same thing as a commercial endeavor, nor should it be treated as such.
Policing content, though, is another road to losing DMCA safe harbor protections, which are partly based on the OSP not being responsible for user actions- you certainly have to respond to DMCA notices, but beyond that it gets dicey. If you find obvious infringement in the course of your work you are obligated to deal with it, but other than that I'd find that particular business decision questionable for various reasons, ethical and legal.
I'd have less a problem with the situation if students who lived in dorms had the option of paying for comparable service. Although I'd personally still have concerns.
Because I've had exactly the opposite experience here in the US. Most universities that I've been a part of (undergrad, masters, doctoral) do NOT require faculty or students to sign over their copyrights except in limited circumstances. Definitely the case for grad work. Look at the University of Texas, for example.
# It permits faculty ownership of scholarly, artistic, literary, musical and educational materials within the author's field of expertise.
# If the University wants to use such a work, to recover expenses of its creation and/or share in royalties if the work is commercialized, it should establish standard University rights that apply to such works or negotiate its rights in a contract with the faculty author.
And UT does not require students to sign over their work- even as student employees creating scholarly materials. They might have them sign something like a nonexclusive license to continue to use the material, but I haven't run into anything particularly onerous.
... and to continue this train of thought, it's *very* important to remember the copyright exceptions whenever you talk about copyrights.
Those copyrights are not absolute. That is, it is *not* the case that every time a copy is made, including when it is downloaded, it is an illegal act.
Copyrights are exclusive and limited rights. The limits are in the term of protection and those exceptions. Those exceptions include
-fair use (107), which has included personal uses including copies for friends and family -libraries and archives (108) -first sale (109) -education (certain performances and displays, 110)
There are a couple more. At any rate, those uses cover a great deal of copying and copyright-related acts that are not infringement.
Copyright law isn't quite as uniform as you might think, even for countries that are part of Berne, WIPO, or other treaties. All of those laws have to be enacted locally. And there are local differences- particularly in those limitations.
I'm afraid your understanding is not entirely correct. ^_-
To determine whether or not a use is fair requires the evaluation of the four factors of fair use, which include the purpose of the use, the amount of the work used, the nature of the work used, and the effect on the market. Each of these is equally important (although some will argue that the fourth is more important, the courts seem to be moving away from that viewpoint).
In some cases, the use of the entire work is not infringing. In some cases, the use of only part of the work is infringing.
Many personal uses- like recording a TV show, or making a mix tape- have historically not been infringing.
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.
But the reason you wouldn't is because you're format shifting something you already own. If that doesn't qualify as a fair use, then something is seriously wrong.
Of course, some nice things about fair use are that a) the creator of the copyrighted content does not get to decide whether the use is or is not fair; b) although the amount being used is one of the factors used to evaluate fair use, it is by no means the only factor, and in some situations using more than a limited amount is fair. No technology can make that evaluation, and copyright holders don't get to, either.
"A slew of specialized software makers are releasing new kinds of technology that promise nearly 100% reliability in detecting copyrighted works."
Great. Now how about 100% reliability in determining whether an exemption such as fair use or education applies to use of the work? Because that's more important.
Thibodeau and the rest of the people at NARA have been thinking about this problem for awhile, as have other researchers around the world. If you're interested in such things, there are a few places to start looking.
After hearing them talk about it at the Managing Electronic Records conference (http://www.merconference.com/), I'd say they have a few things to work out yet... but these are important questions for the preservation of history, culture, and more. These questions also involve authenticity, the value of evidence, and more...
Moral Rights are not as protected in the US as they are in the European community. The law you cite, VARA, only applies to signed and numbered works of which less than 250 are created. Moral rights are a part of the Berne Convention, but in the US are reflected in defamation and trade law rather than copyright.
People are interpreting the parent a bit differently than the law's intent. The parent notes that libraries can't make copies for various reasons if the work is still "commercially circulated, a copy can be obtained at a reasonable price, or the copyright owner makes a special notice" in the last 20 years of the work's protection. If none of those apply, libraries can make copies.
Prior to this rule, libraries couldn't make copies at all, even if those provisions didn't apply. What this rule does is let libraries make some copies in the last 20 years of copyright protection. Given how long copyright protection it, it's really of small solace, but institutions do take advantage of it when they can.
The other thing to note is that any libraries or archives that wishes to take advantage of these copying provisions cannot make the copies for direct or indirect commercial advantage, must be open to the public or researchers, and the copies must include a notice of copyright.
Because Google does not meet the critiria to take advantage of Section 108. Section 108 applies to libraries and archives that are made without direct or indirect commercial advantage and has collections that are open to the public/researchers. Whether Google is or is not a library itself is debatable, and I suspect we'll have definitions after the Section 108 group is through, since right now one of the issues is that libraries and archives are undefinded. It doesn't matter, though, since Google right now doesn't act without direct or indirect commercial advantage.
And that is a fascinating question. The bnetd case was a very scary legitimization of EULAs in general. I'm glad I don't live in the 8th circuit. ^^;
As far as the copyright case, I do agree that it should be a pretty open and shut case. I do expect to see arguments on the effects of potential or existing markets by Blizzard's attorneys with references to Texaco. I'll be watching this carefully, because if it does come up in Blizzard's favor there are certainly pretty significant implications for print or online guides, tutorials, etc., whether through the increased legitimization of EULAs or a stretched interpretation of copyright law.
It's still not a good thing, but note that Super Hero Happy Hour received the message in 2004. It's just now being brought to everyone's attention- and as others have pointed out, they've had the trademark for some time. The original BoingBoing post noted that Marvel was using a museum to strengthen its trademark argument (the TM note at the bottom of the page).
Still, between this and the NCSoft suit, I'm not at all happy with Marvel nowadays. This is the kind of thing that could hurt their authors. The Underwear Pervert blog (Boing Boing's suggestion to replace super heroes) gives examples of where authors published by these guys have used materials in the public domain, which they should be able to do.
I'm not young, but I have read Adam Smith and studied copyright in a post-graduate setting. Try reading Lawrence Lessig, Jessica Litman, Siva Vaidhyanathan, and others who look at the the historical and social context when looking at copyright. Siva's Copyrights and Copywrongs has an excellent history of the development of copyright law in the US.
Yes- but the creation of a derivative work may be fair. I don't know if this use is fair, although I'd like to think it is. Google is partly relying on the Arriba case, which allows the use of thumbnails like you see in Google's image search. That also relies on copying the entire work and then displaying it in a different (derivative) manner.
It is not necessarily up to those who hold the copyrights. If it's a fair use, it's not up to them. If it's not a fair use and does not fall into any other copyright exemption, then it is probably up to them.
If one of the book publishers competed against Google- great. That's competition.
Slashdot Mirror
Most of these problems exist without these rules. These rules assume that you're already following the law when it comes to records and records retention. SarbOx, medical, privacy etc. and such for private companies, open records, public records, FERPA, etc. for schools and government organizations.
And the rules have provisions for when things aren't completely destroyed. That information can be recovered, if people are willing to pay to discover that information.
You don't have to log everything. You have to abide by your records retention policies. You are required to log some things, by records laws, but not by the rules of civil procedure. The only situation where you might have to log more than you ordinarily would is in the case of a litigation hold, when you're party to a lawsuit.
If you have the potential to be a litigant in a federal case, then they matter somewhat. More to the point, though, is that state laws generally follow the federal lead on rules of evidence, so expect most states to offer similar rules.
The Federal Rules of Evidence aren't quite as unreasonable as people seem to think. IMHO, the article is overstating the effects of the newly implemented rules. Important things to remember are
A) Have a records retention policy, and
B) follow that records retention policy.
If you're a public school, you probably have a records retention policy already. Many schools don't follow those policies for electronic records like they're supposed to, but there's very likely one that exists. Applying records retention policies to electronic media has been a problem with many public schools and many government organizations. It doesn't necessarily require going through one of those vendors or using those tools- it does require planning.
IT people were definitely involved in the creation of these rules.
I'm not sure what you mean that nothing is allowed to be found- that's what the discovery rules address. The new rules of evidence provide ways to share or shift costs of finding that information. In the past, you would have to pay those costs. With the new rules, either those costs are shared, or if it truly would be very burdensome to recover that information, the company seeking that information could pay those costs.
A gopher server would be awesome. ^_^
They are avoiding the DMCA issue by avoiding content- but are they really? It seems a bit problematic to say "we're doing it for bandwidth reasons" but then point out all of the copyright issues involved.
University counsel I've spoken to are concerned about what students do on the university network. I've seen IT people take down network access for bandwidth reasons or for other reasons ("commercial" activity) to avoid content policing, but it really seems like they are policing content. Of course, universities often try to limit their liability for what students do as much as possible. ^^;
There's no free lunch, but there are certainly legitimate uses. I've had students use peer to peer applications in my course. I've also had to deal with DMCA notices that students receive in the course of my work in IT at a university. Universities might very well need to make business decisions, but the business of universities is not necessarily the same thing as a commercial endeavor, nor should it be treated as such.
Policing content, though, is another road to losing DMCA safe harbor protections, which are partly based on the OSP not being responsible for user actions- you certainly have to respond to DMCA notices, but beyond that it gets dicey. If you find obvious infringement in the course of your work you are obligated to deal with it, but other than that I'd find that particular business decision questionable for various reasons, ethical and legal.
I'd have less a problem with the situation if students who lived in dorms had the option of paying for comparable service. Although I'd personally still have concerns.
Because I've had exactly the opposite experience here in the US. Most universities that I've been a part of (undergrad, masters, doctoral) do NOT require faculty or students to sign over their copyrights except in limited circumstances. Definitely the case for grad work. Look at the University of Texas, for example.
w howns.htm
http://www.utsystem.edu/OGC/intellectualProperty/
# It permits faculty ownership of scholarly, artistic, literary, musical and educational materials within the author's field of expertise.
# If the University wants to use such a work, to recover expenses of its creation and/or share in royalties if the work is commercialized, it should establish standard University rights that apply to such works or negotiate its rights in a contract with the faculty author.
And UT does not require students to sign over their work- even as student employees creating scholarly materials. They might have them sign something like a nonexclusive license to continue to use the material, but I haven't run into anything particularly onerous.
... and to continue this train of thought, it's *very* important to remember the copyright exceptions whenever you talk about copyrights.
Those copyrights are not absolute. That is, it is *not* the case that every time a copy is made, including when it is downloaded, it is an illegal act.
Copyrights are exclusive and limited rights. The limits are in the term of protection and those exceptions. Those exceptions include
-fair use (107), which has included personal uses including copies for friends and family
-libraries and archives (108)
-first sale (109)
-education (certain performances and displays, 110)
There are a couple more. At any rate, those uses cover a great deal of copying and copyright-related acts that are not infringement.
Copyright law isn't quite as uniform as you might think, even for countries that are part of Berne, WIPO, or other treaties. All of those laws have to be enacted locally. And there are local differences- particularly in those limitations.
I'm afraid your understanding is not entirely correct. ^_-
s c_sec_17_00000107----000-.html
To determine whether or not a use is fair requires the evaluation of the four factors of fair use, which include the purpose of the use, the amount of the work used, the nature of the work used, and the effect on the market. Each of these is equally important (although some will argue that the fourth is more important, the courts seem to be moving away from that viewpoint).
In some cases, the use of the entire work is not infringing. In some cases, the use of only part of the work is infringing.
Many personal uses- like recording a TV show, or making a mix tape- have historically not been infringing.
US Code, Title 17, Section 107
http://www.law.cornell.edu/uscode/html/uscode17/u
107. Limitations on exclusive rights: Fair use
How Current is This?
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.
Nah, you wouldn't.P ublic_Domain.htm
If the photo was taken 50 years ago, then you can look at this handy chart:
http://www.copyright.cornell.edu/training/Hirtle_
Figure out if it was published or unpublished, go by that date.
But the reason you wouldn't is because you're format shifting something you already own. If that doesn't qualify as a fair use, then something is seriously wrong.
Of course, some nice things about fair use are that
a) the creator of the copyrighted content does not get to decide whether the use is or is not fair;
b) although the amount being used is one of the factors used to evaluate fair use, it is by no means the only factor, and in some situations using more than a limited amount is fair.
No technology can make that evaluation, and copyright holders don't get to, either.
"A slew of specialized software makers are releasing new kinds of technology that promise nearly 100% reliability in detecting copyrighted works."
Great. Now how about 100% reliability in determining whether an exemption such as fair use or education applies to use of the work? Because that's more important.
Thibodeau and the rest of the people at NARA have been thinking about this problem for awhile, as have other researchers around the world. If you're interested in such things, there are a few places to start looking.
a rd.html
CAMiLEON http://www.si.umich.edu/CAMILEON/
Cedars http://www.leeds.ac.uk/cedars/
InterPARES http://www.interpares.org/
DSPace http://www.dspace.org/
Lockheed Martin won the NARA contract to develop the Electronic Records Archives.
http://www.archives.gov/era/acquisition/option-aw
After hearing them talk about it at the Managing Electronic Records conference (http://www.merconference.com/), I'd say they have a few things to work out yet... but these are important questions for the preservation of history, culture, and more. These questions also involve authenticity, the value of evidence, and more...
http://www.scotusblog.com/movabletype/archives/200 6/05/more_on_ebay_v.html
Moral Rights are not as protected in the US as they are in the European community. The law you cite, VARA, only applies to signed and numbered works of which less than 250 are created. Moral rights are a part of the Berne Convention, but in the US are reflected in defamation and trade law rather than copyright.
To clarify, I meant that the way Section 108 is currently written does not apply to Google.
Copyright, not patent.
Fonts aren't copyrightable in the US.
People are interpreting the parent a bit differently than the law's intent. The parent notes that libraries can't make copies for various reasons if the work is still "commercially circulated, a copy can be obtained at a reasonable price, or the copyright owner makes a special notice" in the last 20 years of the work's protection. If none of those apply, libraries can make copies.
Prior to this rule, libraries couldn't make copies at all, even if those provisions didn't apply. What this rule does is let libraries make some copies in the last 20 years of copyright protection. Given how long copyright protection it, it's really of small solace, but institutions do take advantage of it when they can.
The other thing to note is that any libraries or archives that wishes to take advantage of these copying provisions cannot make the copies for direct or indirect commercial advantage, must be open to the public or researchers, and the copies must include a notice of copyright.
Because Google does not meet the critiria to take advantage of Section 108. Section 108 applies to libraries and archives that are made without direct or indirect commercial advantage and has collections that are open to the public/researchers. Whether Google is or is not a library itself is debatable, and I suspect we'll have definitions after the Section 108 group is through, since right now one of the issues is that libraries and archives are undefinded. It doesn't matter, though, since Google right now doesn't act without direct or indirect commercial advantage.
And that is a fascinating question. The bnetd case was a very scary legitimization of EULAs in general. I'm glad I don't live in the 8th circuit. ^^;
As far as the copyright case, I do agree that it should be a pretty open and shut case. I do expect to see arguments on the effects of potential or existing markets by Blizzard's attorneys with references to Texaco. I'll be watching this carefully, because if it does come up in Blizzard's favor there are certainly pretty significant implications for print or online guides, tutorials, etc., whether through the increased legitimization of EULAs or a stretched interpretation of copyright law.
I needed a kleenex when I read that.
It's still not a good thing, but note that Super Hero Happy Hour received the message in 2004. It's just now being brought to everyone's attention- and as others have pointed out, they've had the trademark for some time. The original BoingBoing post noted that Marvel was using a museum to strengthen its trademark argument (the TM note at the bottom of the page).
Still, between this and the NCSoft suit, I'm not at all happy with Marvel nowadays. This is the kind of thing that could hurt their authors. The Underwear Pervert blog (Boing Boing's suggestion to replace super heroes) gives examples of where authors published by these guys have used materials in the public domain, which they should be able to do.
I'm not young, but I have read Adam Smith and studied copyright in a post-graduate setting. Try reading Lawrence Lessig, Jessica Litman, Siva Vaidhyanathan, and others who look at the the historical and social context when looking at copyright. Siva's Copyrights and Copywrongs has an excellent history of the development of copyright law in the US.
Yes- but the creation of a derivative work may be fair. I don't know if this use is fair, although I'd like to think it is. Google is partly relying on the Arriba case, which allows the use of thumbnails like you see in Google's image search. That also relies on copying the entire work and then displaying it in a different (derivative) manner.
It is not necessarily up to those who hold the copyrights. If it's a fair use, it's not up to them. If it's not a fair use and does not fall into any other copyright exemption, then it is probably up to them.
If one of the book publishers competed against Google- great. That's competition.