What about distributing (legally obtained copies) without copying?
This activity is protected under the "first sale" doctrine -- basically, once a "first sale" is made, the copyright holder loses the ability to control distribution of that particular "instance" of the copyrighted book. If you buy a book, you can then sell it to someone else, give it away, or lend it or rent it out, and the copyright holder has no recourse, because when you bought the book, the "first sale" doctrine kicked in.
"First sale" does not, of course, allow you to replicate that particular instance of the copyrighted work, or publicly perform it, etc. It only "exhausts" the copyright holder's right to control distribution of that instance of the copyrighted work.
This holds true no matter what the media is -- a book, photograph, DVD, CD, VHS tapes, painting, whatever.
Hellooo? Read 17 U.S.C. 106(1) http://www.copyright.gov/title17/92chap1.html#106.Reproduction on its own is covered by copyright, and you may not reproduce a copyrighted work without permission, except in certain circumstances where it has been explicitly allowed (like backup copies of computer programs and CDs, etc.).
I find this to be an interesting collision of digital copyright rationale and print. I teach teacher ed, and in my lesson on copyright we address the limit on keeping tapes of television broadcasts - 10 days is the rule of thumb. So, if you tape some historical speech or event, the network only allows you to keep that tape 10 days....
Where did you come up with this "10 day" rule? You can keep that tape forever --its a valid and legal exercise of time-shifting a broadcast work, see Universal v. Sony (the Betamax case).
So, what's the difference between newspapers and video?
What differences? They are covered by the same copyrights laws -- oh, there are a few laws that are medium-specific, but the general rules apply to all copyrights, whether they be print or video.
MAybe your school has published certain guidelines on what they feel is acceptable under the law, but what you've written isn't the law.
Artists, REAL artists creat so that other may enjoy it. the Poser and fake artists creat and then crouch over it covering it screaming "mine! mine! mine!"
How does said "REAL artist" eat? Or buy art supplies?
At least the "Poser" and "fake artists" may be able to take care of themselves...
IANAL, but I think if this suit goes to court, and goes against Google, it will be because Google does not own and maintain physical possession of the books.
No, it will go against Google because they made complete digital copies of the books without permission from the copyright holders. That's copyright infringement.
To get around this, if Google charged a nominal annual fee ($1, perhaps) to the libraries for providing a lookup service for their customers (and nearly everyone in the US can be a customer through inter-library-loan), they could argue that this is just a extension of the library's fair-use of the copyrighted material.
Libraries don't have a carte blanche "fair use" card that allows them to do whatever they want -- libraries, with a few specific exceptions, are bound by the same copyright laws as the rest of us, and get no more leeway on fair use than you or I (or Google). Libraries (again with a few very specific exceptions) do not have any more right to make a copy of a book than you or I -- because they are nonprofit, they may have a leg up onproving a fair use defense -- but otherwise, there really isn't anything special about libraries.
I don't know what Libraries have to do to have the rights to loan books out
They have to purchase the books, or otherwise lawfully obtain them (through donations, or whatever). That's it. You could call your book collection a "library" and lend the books out if you wanted to.
but what google is doing seems to me to be a better option for writers and publishers.
But who get's to decide what a "better option for writer and publishers" is -- Google, or the writers and publishers? Why should Google get to decide?
Allowing a user to view a few pages of a work IS allowed under fair use. So I don't see how what google is doing is illegal.
Allowing the user to view a few pages probably IS a fair use -- but making the complete copy in the first place is almost certainly not a fair use, and that's where the infringement, if any, likely occurs.
Although the original work deserves copyright protection, granting the above, it is clear that this index is a fair use. In fact, even a commercial index would be fair use.
How do you come to the conclusion that this is "clearly" a fair use? If we go by the four factors:
1. Purpose: the purpose is so Google can sell ads, isn't that commercial?
2. Nature: The works are copyrighted.
3. Amount: They copy the entire work. The fact that they may not keep the work in order in the database is irrelevant -- the fact that they copy the entire work is relevant.
4. Effect: Who knows, maybe it inspires people to buy more books, maybe not.
2 or 3 of the 4 factors seem to tip in favor of it NOT being a fair use (depends on whether you consider it an educational or commercial use or not), and #4 is simply unknown at this time. I don't see how that can be a "clear" showing of fair use. Besides, the four factors aren't considered equally -- #4 is considered the most important (See Campbell v. Acuff-Rose Music), and we don't know the answer to that one yet.
This may very well be found to be a fair use by the court, but it is hardly the slam-dunk that you and others seem to think it is.
A library specifically may make a copy, according to copyright law [copyright.gov]
Only if the library can show that, by balancing the four "fair use" factors, the library's copy is really a "fair use." There are no uses that are automatic fair uses -- all uses must be undergo the 4-factor balancing test before a determination can be made whether or not a given use is fair.
Educational use, or use by a library, will tip the balance towards a fair use -- but copying the whole work, rather than just a part, will tip the scales in the opposite direction. Libraries and schools do NOT get a free pass to make all of the copies they want.
Also, there are a number of criteria that are to be used to determine fair use. Copyright is not nearly as absolute as Holywood would lead you to believe.
Exactly true. But, then again, "fair use" isn't a right that you can assert either, like everyone on this board seems to think. "Fair use" is a defense to a charge of infringement. You can't keep someone from suing you for infringement by claiming your use is a fair use -- all you can do is try and show you are not infringing once you have already been sued because your particular use is a fair use.
As for Google, they are not providing whole books in readable form except when the books are in the public domain, so I think they have a good case to make that this is a fair use under copyright law.
The fact that they make it available or not really isn't the relevant point. To make the index, they have to make a digital copy of the entire book -- and that's simply not going to be fair use, ever. Whether or not they make that digital copy available to others isn't the issue, since they've already made the illegal copy by that time.
It seems to me that Apple shouldn't even need to prove prior art to kill this patent where it stands -- the defense that the invention is obvious, and therefore unpatentable, should be all they need.
To prove "obviousness," you need to show that the invention would have been "obvious" to one with "ordinary skill in the art" at the time of the application of the patent -- in this case, back in 2001. Of course, the way you show that is by showing what a person of "ordinary skill in the art" would have known in 2001, and you do that by digging up experts who can testify as to the ordinary skill in the art, and by digging up textbooks and articles and papers and everything else. In essence, you need the "prior art" to prove "obviousness," so you can't separate out the two like you suggest.
Legal obviousness is a pain in the ass to prove, because it's so fuzzy -- it's much easier to find a patent invalid based on prior art, if the prior art exists. Another thing to remember is that even if art appears to be prior art, if the applicant or the examiner referred to the art during prosecution, yet still issued the patent, then it is presumed that such art may not qualify as invalidating prior art under 35 USC 102. So even if you find something that looks like prior art, you need to go to that patent itself and the patent's prosecution history to figure out if the art was relied on in prosecution, and is therefore essentially (although there are exceptions) useless to prove invalidity.
When you are attacking a patent, you pull out all of the stops -- you attack on noninfringement (trying to show that you are not infringing, even if the patent is valid), invalidity (that the patent is invalid and never should have been issued, either because of prior art or obviousness), unenforceability (saying that even if the patent is valid, it's not enforceable, for any number of reasons), and, if you have any reason at all to believe that it might be true, inequitable conduct (basically accusing the inventor or his lawyers of lying to the USPTO to get the patent issued).
I can't afford a patent! As of now (actually for the past year), I'm still deciding whether to just give it to the world, or keep it inside my skull until I die.
If you are willing to learn how to write and prosecute a patent yourself, you can get a patent for just the fees, which should be around a thousand bucks or so (don't have the fee schedule in front of me). You can probably get a book or two on writing patents from a library. If you've got a great idea, maybe it's worth learning how to write the patent yourself, or maybe borrowing a couple of thousand bucks from someone to get the patent.
Damn it, it only costs twenty bucks to register a copyright and it lasts virtually forever. Why should a twenty year patent require an army of lawyers?
Well, a patent doesn't require an army of lawyers if you are willing to learn how to do some things yourself. And even if you don't, you really can get by with only 1 lawyer (unless you need to later enforce the patent, that will take more than 1, most likely).
The reason a patent is more expensive and more difficult to obtain is because patents, even though they don't last as long as copyrights, provide far more protection. The scope of patent protection are exceeds that of copyright.
Please. You are not forced. You won't go to jail if you don't purchase a particular CD or song. Really, really wanting something and being forced to buy something (under threat of force or under law) are totally different concepts. Just because you can't possibly live without a CD or song does not mean that you were somehow forced to buy the song.
The whole point of the article is that you are forced to pay for the song as you legally can't get it from anyone else.
This is where you blew it -- you missed the third alternative -- don't buy the song or CD at all in the first place.
Children will inheret the unpayable debt and ensuing maintinence payments, and it will act as a poison for a long time.
In the U.S. at least, debt is not inherited. If your dad owed $1,000,000 in credit card bills, you wouldn't inherit that debt -- the debt would disappear. Of course, if your dad also had $1,000,000 in assets at death, those assets would be used to pay off the debts -- sorry about your inheritance, son -- but if dad had $0 assets at death, then the $1,000,000 debt would siply disappear.
There are a couple of exceptions, of course -- secured debt (like a mortgage) doesn't disappear. So if you inherit dad's house, you also inherit any liens against the house (like the mortgage). But you could simply let the bank repo the house if you wanted, without affecting your credit, so in reality, even secured debts aren't inherited, unless you choose to keep the security (the house or the car, for example). The other exception is if your dad ran up the $1,000,000 buying you a couple of Bentleys with all of the requisite bling right before he died -- that could be seen as fraud, and if you kept the Bentleys and the bling, you could be responsible for paying for them. But in the overwhelming majority of cases, the debt is not inherited by the heirs.
Also, a multi-million dollar lawsuit can also be made to disappear via bankruptcy. Yes, it will mess up your credit for a while, but it's better than having a debt that can never be paid hanging over you, and having your wages garnished, etc.
Have you ever been to a library? Yes. They track borrowings and pay a royalty to publishers per book borrowing.
Libraries (at least in the U.S.) may track borrowings, but if they do, it's not to pay royalties. A library can loan a book or CD or DVD for free, just like I can loan a book or CD or DVD to a friend for free. No royalties anywhere. Blockbuster and other video rental stores likewise do not have to pay any royalties on their rentals -- once they (or you or I or anyone else) has purchased a DVD or VHS tape, they can give it away or rent it without further involvement from the copyright holder.
Nobody, however -- you, I, Blockbuster or the library -- has the right to make copies of the book, CD or DVD for distribution without permission.
Everything else you said was absolutely right, just thought I would clear up that one point.
I know I am a couple of days late here, but in case anyone is still tuned in, the current life + 70 years is for individual authors; corporations, and authors who do not use their own name, get 120 years from the date of creation. So the fact that "corporations don't die" doesn't mean that copyrights don't die -- the current lifetimes of copyrights is very long, but even for corporations, copyrights will eventually expire.
In Twain's days, it wouldn't matter whether or not a corporation owned the copyright of not beause copyright terms were based on the date of publication, not the life of the author. It didn't matter who published it -- 14 years from publication was the length of copyrights in those days.
Finally, even if an author later sells his copyright to another person or corporation, the copyright term is based on the AUTHOR's life, not the life of the person or coporation he sold the copyright to. The 120 year term for copyrights is only for the case where a corporation itself is the author -- like software, or instructional manuals, that sort of thing.
Firstly, the vast, vast major of contracted musicians don't see a penny from their copyrighted works, because they don't own the copyrights -- the labels do. And the labels screw them out of whatever cash they may be entitled to. Even successful artists rarely see a dime until the second or third hit album.
And that's just as irrelevant to the argument -- if the artist felt that selling his or her rights to the record company was the best thing for them to do, why shouldn't the record company then be able to profit from it? As is noted over and over ad naseum on these boards, nobody forces the artists to sign their contracts with the labels -- they do it of their own free will.
And anyway, copyright and payment is not a bad thing -- if it is limited for a short time. Copyright, however, is now eternal, and the original bargain made by the Constitution's framers is dead. Until copyright is reined in, it is a Bad Thing.
Life + 70 years is a long ass time, I will agree, but is far short of eternal. Read Eldred v. Ashcroft (maybe you already have) to see the arguments as to why life + 70 is constitutional.
You've changed the definition of the goods. There is ONE source in the world for U2 performances -- U2 itself. That's what concerts are for, to obtain that unique product that only U2 can provide.
BUT, the recordings of the songs are not provided by a monopoly - not anymore - have millions of sources available for repro, are infinitely reproducible at almost no cost, and have a street value of either retail price or free. Amazingly, a lot of people are purchasing the retail package, but free seems to be popular as well. The free market has assigned its values. That the copyright lords do not agree with the reality of the free market doesn't change the reality. The copyright holders should be shudderingly grateful that people are willing to pay anything at all for a 25 cent disc.
So, you think that the artists should only charge for concerts, and should give away the CD's for nothing? Maybe artists shouldn't record CD's at all, and should just perform, and not allowe recording of their shows.
Obviously, they can compete. Bono doesn't seem to be hurtin' for money.
You are right, Bono isn't hurting. But would Bono be where he was today if the record company couldn't have sold cassettes and albums back when U2 started? How would anyone know whether or not U2 could sell out a small club or an arena if there was no measurement of their popularity?
How about another example -- if you are a young singer, just starting out, would you rather be playing small clubs, trying to build up a buzz and get some interest going, and giving away CD's that you paid to produce and record, or would you rather take a check up front, get your CD recorded and produced professionally, and have a record label doing the marketing, distribution, getting you airplay, getting you into videos, getting you onto SNL or Letterman, or whatever. If the record labels couldn't make money selling CD's, then you wouldn't have record labels providing the services labels do.
Now, I'm not an apologist for the labels -- but they do provide a service that an awful lot of artists seem ready and willing to take advantage of, and pay handsomely for. Who are you to tell them that the deal they are making is not a good deal just because YOU would like to pay less for their music.
But Twain's writings are STILL COPYRIGHTED, and will be forever; they are held by an IP concern which trades in the stuff like stock certificates. This is the reality. The works of mankind are now product, never to be released.
Mark Twain died in 1910. Even if he published something on the day he died, it would long be public domain by now. Huckleberry Finn was published in 1885, which means it was public domain in 1899, if I remember my old copyright laws correctly.
Wrappin' it up, I can only throw in my only real, extralegal reason for tossing copyright into the
I understand that's what the constitution says -- I was arguing in the more philosophical sense, because "You should rightly be paid for the original act of creation or performance. Not paid over and over again a hugely inflated price for each damn-near-negligible-cost-to-produce copy thereof" isn't what the constitution says either.
Once an author creates a work, getting paid repeatedly, indefinitely, for that work does not incent him to continue to author.
But how many authors and artists can continue to make a living after publishing only one work, even though they get paid "indefinitely?"
If he can just take his one book (or song or invention or whatever) to the bank for the rest of his and his children's children's children's lives, what motive would he have to continue to produce?
Again, there aren't many authors or artists that can continue to make a living off of a single recording or novel. Maybe it happens once in a while, but most don't make that much even when there product is first printed or published -- the incentive to create another work is the same incentive most of us have every day when we get up and go to work -- to make more money.
Also, BTW, I know you didn't make this argument, but I've seen it a lot on/., and that's the argument that a company shouldn't own the patents that their employees make, but the employees should own the patents and reap the benefits. Well, the current system we have for patents in these cases is essentially the pay-once system -- the employee gets a paycheck -- and people don't seem to like that. I guess maybe it's because somebody else -- the employer, in this case -- is reaping the benefits of the patent. But that's the same thing that would happen here -- if artists were paid once for their product, and that's it, then others would be free to come in an profit from their creations. Maybe its not a complete direct parallel, but I think it helps to point out some of the diverging IP arguments we have here sometimes...
Now Disney and the **IAs want copyrights and patents to be enforcable indefinitely, because they don't want to have to create something new which would supplant the revenues lost when their copyright protection sunsets.
When was the last time a new album came out from an RIAA member? Don't several hundred new albums come out every year, at least? How many new movies has Disney made in the last few years? True, Disney would lose some income if copyright protection went away, but it is hard to see how Disney is NOT incentivized by the current length of copyrights, unless you want to say that Disney would produce even more movies if they didn't have copyright protections, or record labels would produce and distribute even more CD's if copyright went away.
Actually, there are hundreds of bands that are adequately substitutable for U2 for the average music consumer.
I don't know about that -- when the average music consumer hears a U2 song on the radio, do they go to the music store and decide not to buy the U2 CD because there is something else "adequately subsitutable" for U2 for $.50 less? When you go to a store to buy a CD or buy from Amazon (I know, a big assumption here on/.!), do you try and purchase specific CD's by specific artists, or do you shop solely on price?
When you hear about a new book or novel, do you purchase that novel or book, or do you try and find a cheaper one, because it should be "adequately substitutable?" Did you buy Half-Life 2, or did you find some "adequately substitutable" shareware or freeware?
The point is, a lot of "creative" works that are the types of things covered by copyright (but not everything, of course) are the types of things that there really aren't adequate substitutes for, at least not until the prices get totally out of wack. I agree that if a no-name band's CD was selling for $2.00, and U2's new CD for $30.00, maybe that would be enough of a price gap to get people to buy the no-name CD (although I suspect that people would mainly just not buy the U2 CD, and not buy the no-name CD either). If you really want to hear the new U2 CD, there simply isn't an adequate substitute. That's why free market ideas don't work so well with creative works.
People don't buy music, art, books, etc., based soley on price -- price is usually an issue, of course, but the price decision becomes more of a buy-or-don't-buy decision, versus buy U2 or buy some other CD decision. That's why traditional notions of competition don't work.
Now, if more than 1 record company was selling the same U2 CD, maybe with different artwork or with some different features of something, THEN maybe you would have a true competive situation, where a consumer could purchase the U2 from whichever record label offered the best combination of price, service and features. But as long as bands, authors, artists, etc., are bound to exclusive licensing and distribution networks, this kind of competition simply can't occur.
BTW, that's also true for bands who sell their own CD's and don't go through a label, or go through indie labels -- there STILL isn't any real competition...
what "the" law says is irrelevant to what rights I choose to grant you under MY law, even if the domain of my law doesn't extend very far past my shirt right now (that WILL change)
I, for one, welcome our Anonymous Coward overlords...
You should rightly be paid for the original act of creation or performance. Not paid over and over again a hugely inflated price for each damn-near-negligible-cost-to-produce copy thereof.
But why is this so bad? Why shouldn't the creator continue to be paid for his creation? Everyone says this is a horrible thing, but why is it a horrible thing? Is it just because YOU don't want to pay for something, or is their some grander scheme?
Copyright monopolies destroying the free market allow them to nigh-on print money, rather than their product price equilibrating near marginal cost of production with a reasonable profit as would happen in a free market.
But what does a "free market" mean in the creative world? There is only 1 U2 or Coldplay out there -- what does a "free market" mean when there is only a single source of the goods? IF there really were a free market for creative goods, that would imply that there were several U2's out there, and they would compete to provide the best product at the lowest price.
However, there is only 1 U2 out there -- with or without copyright laws, if someone wants U2 songs, there is only 1 supplier -- it's a monopoly situation, not a free market. In such a market, copyright law does NOT establish the monnopolies -- they already exist automatically -- it simply attempts to eliminate "freeloaders."
What you -- and most of the folks here on/. -- want is not a free market, but a market where freeloaders can continually undercut prices. The free market rules, which would suggest that competition would drive prices down to marginal cost + reasonable profit CANNOT apply when the market consists of a monopolist (like U2) who carries all of the costs and risk associated with creating their product, and freeloaders who carry none of the risk or costs. U2 can never compete with the freeloaders on price as long as they have to recoup their costs before they can turn a profit. Since the costs for the freeloaders approach zero, they can always undercut the monopolist.
Copyright, and other IP protections, are the only way that such a monopolist can try and minimize the problem of freeloaders. Is copyright perfect? No, but neither is "no copyright."
You make a very good point -- unfortunately, until a federal judge (or perhaps the Supremes) takes a look at this ruling, the contitutionality really isn't an issue. The congress, NLRB, or any other administrative body can pass whatever rules they want -- you'd like to think that they would consider the constitutionality of their acts, but mostly they don't -- it's not until the judiciary gets to review the ruling, act, law, etc., that the consitutionality gets determined...
Please -- most bands practically trip over themselves to sign with a major label. Everyone thinks that with major label backing, they'll be the next Madonna\Mariah\Britney\whatever. They only get "tricked" because they let the $$$ signs blind them to the realities of the contract.
But that goes back to my statement -- they obviously feel that signing with the major label is the best thing for them, that's why they do it. Maybe if they were better educated as to indie labels and the like, they would choose differently -- but maybe not. Maybe the lure of the big label is more important that the "much better" deal they might get from an indie label.
Actually, I am the OP (though as I'm posting AC, you've no reason to trust me on that) I am in favor of abolishing minimum-wage laws and "contracts OF service" (as opposed to "FOR") totally, as it happens.
The artists who sign with the record companies are not forced to do so at gunpoint. They sign those contract willingly. If they don't like the contract, they should figure out how to produce, market and distribute their music on their own.
The artists signed the contracts -- presumabely they felt they were better off with the record company than without the record company. Who are you to interfere with the artist's right to contract with the record company and decide for yourself who should get what money?
I believe the GP was arguing that the concept of copyright should be eliminated(or, in his own words, "fucked"), and that the state he described would be the "natural" state of the economy following this.
I know -- I just couldn't resist the obvious issue in the poster's comments...
The strength with which the assumption is made smacks slightly of utopian anarchism to me: it is no more inherently believable than the RIAA's scenarios for a future without copyright.
Personally, I tend to think that the free market, as implemented in society as of today, has proven itself not to be particularly well-suited to the distribution of easily-replicated goods, and that we certainly shouldn't dismiss potential solutions to this situation because they are not ideologically compatible with the free market.
I agree 100%.
Besides, in a truely "free" market, we wouldn't have minimum-wage laws or labor laws either -- I mean, what business does the government have telling an employer and an employee how they have to structure their working relationship! A free market would allow freedom to contract -- but I would be that the original poster, along with most others, would be unwilling to give up minimum wage laws and other labor laws because they want a "free" market. You hit it dead on -- there are some things that a free market doesn't deal with very well (at least over the short term -- maybe it would all settle down eventually) and we accept some limitations on the free market to make everything work more smoothly...
Set up a system where anyone can logon to listen to a song. The songs are streamed and can't be copied to a personal machine. Allow anyone access to the system. Limit each song to only one person accessing it at a time (like checking it out). And make sure you own each song on the system. Movies can be used too. Would this be legal and within your rights?
Not in the U.S., at least with respect to music. See 17 U.S.C. 106(6). The answer is not so clear for movies (in the U.S.), but I would suspect it would also be illegal. 17 U.S.C. 106(3) or (4) (can't remember which one) prohibits the "public performance" of a movie without permission; in 17 U.S.C. 101 (the definitions), to "publicly perform" includes:
"(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."
I haven't purused the caselaw here, but I would suspect that these two clauses put together would prohibit your idea with respect to movies.
Libraries (and you) are allowed to loan out you tangible copy of a CD or DVD, but neither you nor the library is allowed to "stream" stuff to others without permission.
Plus, as the Michael Jackson trial showed, if there is a single shred of reasonable doubt then the judge/jury is supposed to return a verdict of not guilty. In theory, this is even supposed to apply even if your personal belief is that the accused is guilty as sin, although perhaps not in practice.
But the record companies are suing, which means this is a civil matter, not a criminal matter. Of course, in a criminal matter (in the U.S., at least), you need to prove guilt "beyond a reasonable doubt," as you correctly note. However, in a civil case (in the U.S. again), you only need to prove liability be a "preponderance of the evidence" -- in other words, "more likely than not."
So, in the case of the open access point, you only need to prove that it is more likely than not that YOU are the one doing the file sharing -- you don't have to prove it beyond a reasonable doubt.
If there are no "unauthorized" music files on your PC, nor any evidence that there ever were, then that's reasonable doubt in my book.
That's probably good enough by either standard.
if there were said files on the PC, there is a already a legal precedent in the UK for acquittal in a computer crime case on the grounds that the PC had been compromised and may have been used without the owner's knowledge.
And while that was clearly enough to raise a "resonable doubt" in a criminal case, it's unlikely that "may have been compromised" would be sufficient to overcome the "more likely than not" standard.
Slashdot Mirror
What about distributing (legally obtained copies) without copying?
This activity is protected under the "first sale" doctrine -- basically, once a "first sale" is made, the copyright holder loses the ability to control distribution of that particular "instance" of the copyrighted book. If you buy a book, you can then sell it to someone else, give it away, or lend it or rent it out, and the copyright holder has no recourse, because when you bought the book, the "first sale" doctrine kicked in.
"First sale" does not, of course, allow you to replicate that particular instance of the copyrighted work, or publicly perform it, etc. It only "exhausts" the copyright holder's right to control distribution of that instance of the copyrighted work.
This holds true no matter what the media is -- a book, photograph, DVD, CD, VHS tapes, painting, whatever.
Hellooo? Read 17 U.S.C. 106(1) http://www.copyright.gov/title17/92chap1.html#106. Reproduction on its own is covered by copyright, and you may not reproduce a copyrighted work without permission, except in certain circumstances where it has been explicitly allowed (like backup copies of computer programs and CDs, etc.).
I find this to be an interesting collision of digital copyright rationale and print. I teach teacher ed, and in my lesson on copyright we address the limit on keeping tapes of television broadcasts - 10 days is the rule of thumb. So, if you tape some historical speech or event, the network only allows you to keep that tape 10 days....
Where did you come up with this "10 day" rule? You can keep that tape forever --its a valid and legal exercise of time-shifting a broadcast work, see Universal v. Sony (the Betamax case).
So, what's the difference between newspapers and video?
What differences? They are covered by the same copyrights laws -- oh, there are a few laws that are medium-specific, but the general rules apply to all copyrights, whether they be print or video.
MAybe your school has published certain guidelines on what they feel is acceptable under the law, but what you've written isn't the law.
Artists, REAL artists creat so that other may enjoy it. the Poser and fake artists creat and then crouch over it covering it screaming "mine! mine! mine!"
How does said "REAL artist" eat? Or buy art supplies?
At least the "Poser" and "fake artists" may be able to take care of themselves...
IANAL, but I think if this suit goes to court, and goes against Google, it will be because Google does not own and maintain physical possession of the books.
No, it will go against Google because they made complete digital copies of the books without permission from the copyright holders. That's copyright infringement.
To get around this, if Google charged a nominal annual fee ($1, perhaps) to the libraries for providing a lookup service for their customers (and nearly everyone in the US can be a customer through inter-library-loan), they could argue that this is just a extension of the library's fair-use of the copyrighted material.
Libraries don't have a carte blanche "fair use" card that allows them to do whatever they want -- libraries, with a few specific exceptions, are bound by the same copyright laws as the rest of us, and get no more leeway on fair use than you or I (or Google). Libraries (again with a few very specific exceptions) do not have any more right to make a copy of a book than you or I -- because they are nonprofit, they may have a leg up onproving a fair use defense -- but otherwise, there really isn't anything special about libraries.
I don't know what Libraries have to do to have the rights to loan books out
They have to purchase the books, or otherwise lawfully obtain them (through donations, or whatever). That's it. You could call your book collection a "library" and lend the books out if you wanted to.
but what google is doing seems to me to be a better option for writers and publishers.
But who get's to decide what a "better option for writer and publishers" is -- Google, or the writers and publishers? Why should Google get to decide?
Allowing a user to view a few pages of a work IS allowed under fair use. So I don't see how what google is doing is illegal.
Allowing the user to view a few pages probably IS a fair use -- but making the complete copy in the first place is almost certainly not a fair use, and that's where the infringement, if any, likely occurs.
Although the original work deserves copyright protection, granting the above, it is clear that this index is a fair use. In fact, even a commercial index would be fair use.
How do you come to the conclusion that this is "clearly" a fair use? If we go by the four factors:
1. Purpose: the purpose is so Google can sell ads, isn't that commercial?
2. Nature: The works are copyrighted.
3. Amount: They copy the entire work. The fact that they may not keep the work in order in the database is irrelevant -- the fact that they copy the entire work is relevant.
4. Effect: Who knows, maybe it inspires people to buy more books, maybe not.
2 or 3 of the 4 factors seem to tip in favor of it NOT being a fair use (depends on whether you consider it an educational or commercial use or not), and #4 is simply unknown at this time. I don't see how that can be a "clear" showing of fair use. Besides, the four factors aren't considered equally -- #4 is considered the most important (See Campbell v. Acuff-Rose Music), and we don't know the answer to that one yet.
This may very well be found to be a fair use by the court, but it is hardly the slam-dunk that you and others seem to think it is.
A library specifically may make a copy, according to copyright law [copyright.gov]
Only if the library can show that, by balancing the four "fair use" factors, the library's copy is really a "fair use." There are no uses that are automatic fair uses -- all uses must be undergo the 4-factor balancing test before a determination can be made whether or not a given use is fair.
Educational use, or use by a library, will tip the balance towards a fair use -- but copying the whole work, rather than just a part, will tip the scales in the opposite direction. Libraries and schools do NOT get a free pass to make all of the copies they want.
Also, there are a number of criteria that are to be used to determine fair use. Copyright is not nearly as absolute as Holywood would lead you to believe.
Exactly true. But, then again, "fair use" isn't a right that you can assert either, like everyone on this board seems to think. "Fair use" is a defense to a charge of infringement. You can't keep someone from suing you for infringement by claiming your use is a fair use -- all you can do is try and show you are not infringing once you have already been sued because your particular use is a fair use.
As for Google, they are not providing whole books in readable form except when the books are in the public domain, so I think they have a good case to make that this is a fair use under copyright law.
The fact that they make it available or not really isn't the relevant point. To make the index, they have to make a digital copy of the entire book -- and that's simply not going to be fair use, ever. Whether or not they make that digital copy available to others isn't the issue, since they've already made the illegal copy by that time.
Got it?
It seems to me that Apple shouldn't even need to prove prior art to kill this patent where it stands -- the defense that the invention is obvious, and therefore unpatentable, should be all they need.
To prove "obviousness," you need to show that the invention would have been "obvious" to one with "ordinary skill in the art" at the time of the application of the patent -- in this case, back in 2001. Of course, the way you show that is by showing what a person of "ordinary skill in the art" would have known in 2001, and you do that by digging up experts who can testify as to the ordinary skill in the art, and by digging up textbooks and articles and papers and everything else. In essence, you need the "prior art" to prove "obviousness," so you can't separate out the two like you suggest.
Legal obviousness is a pain in the ass to prove, because it's so fuzzy -- it's much easier to find a patent invalid based on prior art, if the prior art exists. Another thing to remember is that even if art appears to be prior art, if the applicant or the examiner referred to the art during prosecution, yet still issued the patent, then it is presumed that such art may not qualify as invalidating prior art under 35 USC 102. So even if you find something that looks like prior art, you need to go to that patent itself and the patent's prosecution history to figure out if the art was relied on in prosecution, and is therefore essentially (although there are exceptions) useless to prove invalidity.
When you are attacking a patent, you pull out all of the stops -- you attack on noninfringement (trying to show that you are not infringing, even if the patent is valid), invalidity (that the patent is invalid and never should have been issued, either because of prior art or obviousness), unenforceability (saying that even if the patent is valid, it's not enforceable, for any number of reasons), and, if you have any reason at all to believe that it might be true, inequitable conduct (basically accusing the inventor or his lawyers of lying to the USPTO to get the patent issued).
I can't afford a patent! As of now (actually for the past year), I'm still deciding whether to just give it to the world, or keep it inside my skull until I die.
If you are willing to learn how to write and prosecute a patent yourself, you can get a patent for just the fees, which should be around a thousand bucks or so (don't have the fee schedule in front of me). You can probably get a book or two on writing patents from a library. If you've got a great idea, maybe it's worth learning how to write the patent yourself, or maybe borrowing a couple of thousand bucks from someone to get the patent.
Damn it, it only costs twenty bucks to register a copyright and it lasts virtually forever. Why should a twenty year patent require an army of lawyers?
Well, a patent doesn't require an army of lawyers if you are willing to learn how to do some things yourself. And even if you don't, you really can get by with only 1 lawyer (unless you need to later enforce the patent, that will take more than 1, most likely).
The reason a patent is more expensive and more difficult to obtain is because patents, even though they don't last as long as copyrights, provide far more protection. The scope of patent protection are exceeds that of copyright.
Please. You are not forced. You won't go to jail if you don't purchase a particular CD or song. Really, really wanting something and being forced to buy something (under threat of force or under law) are totally different concepts. Just because you can't possibly live without a CD or song does not mean that you were somehow forced to buy the song.
The whole point of the article is that you are forced to pay for the song as you legally can't get it from anyone else.
This is where you blew it -- you missed the third alternative -- don't buy the song or CD at all in the first place.
Children will inheret the unpayable debt and ensuing maintinence payments, and it will act as a poison for a long time.
In the U.S. at least, debt is not inherited. If your dad owed $1,000,000 in credit card bills, you wouldn't inherit that debt -- the debt would disappear. Of course, if your dad also had $1,000,000 in assets at death, those assets would be used to pay off the debts -- sorry about your inheritance, son -- but if dad had $0 assets at death, then the $1,000,000 debt would siply disappear.
There are a couple of exceptions, of course -- secured debt (like a mortgage) doesn't disappear. So if you inherit dad's house, you also inherit any liens against the house (like the mortgage). But you could simply let the bank repo the house if you wanted, without affecting your credit, so in reality, even secured debts aren't inherited, unless you choose to keep the security (the house or the car, for example). The other exception is if your dad ran up the $1,000,000 buying you a couple of Bentleys with all of the requisite bling right before he died -- that could be seen as fraud, and if you kept the Bentleys and the bling, you could be responsible for paying for them. But in the overwhelming majority of cases, the debt is not inherited by the heirs.
Also, a multi-million dollar lawsuit can also be made to disappear via bankruptcy. Yes, it will mess up your credit for a while, but it's better than having a debt that can never be paid hanging over you, and having your wages garnished, etc.
Three of your four examples are 100% correct.
Have you ever been to a library? Yes. They track borrowings and pay a royalty to publishers per book borrowing.
Libraries (at least in the U.S.) may track borrowings, but if they do, it's not to pay royalties. A library can loan a book or CD or DVD for free, just like I can loan a book or CD or DVD to a friend for free. No royalties anywhere. Blockbuster and other video rental stores likewise do not have to pay any royalties on their rentals -- once they (or you or I or anyone else) has purchased a DVD or VHS tape, they can give it away or rent it without further involvement from the copyright holder.
Nobody, however -- you, I, Blockbuster or the library -- has the right to make copies of the book, CD or DVD for distribution without permission.
Everything else you said was absolutely right, just thought I would clear up that one point.
I know I am a couple of days late here, but in case anyone is still tuned in, the current life + 70 years is for individual authors; corporations, and authors who do not use their own name, get 120 years from the date of creation. So the fact that "corporations don't die" doesn't mean that copyrights don't die -- the current lifetimes of copyrights is very long, but even for corporations, copyrights will eventually expire.
In Twain's days, it wouldn't matter whether or not a corporation owned the copyright of not beause copyright terms were based on the date of publication, not the life of the author. It didn't matter who published it -- 14 years from publication was the length of copyrights in those days.
Finally, even if an author later sells his copyright to another person or corporation, the copyright term is based on the AUTHOR's life, not the life of the person or coporation he sold the copyright to. The 120 year term for copyrights is only for the case where a corporation itself is the author -- like software, or instructional manuals, that sort of thing.
Firstly, the vast, vast major of contracted musicians don't see a penny from their copyrighted works, because they don't own the copyrights -- the labels do. And the labels screw them out of whatever cash they may be entitled to. Even successful artists rarely see a dime until the second or third hit album.
And that's just as irrelevant to the argument -- if the artist felt that selling his or her rights to the record company was the best thing for them to do, why shouldn't the record company then be able to profit from it? As is noted over and over ad naseum on these boards, nobody forces the artists to sign their contracts with the labels -- they do it of their own free will.
And anyway, copyright and payment is not a bad thing -- if it is limited for a short time. Copyright, however, is now eternal, and the original bargain made by the Constitution's framers is dead. Until copyright is reined in, it is a Bad Thing.
Life + 70 years is a long ass time, I will agree, but is far short of eternal. Read Eldred v. Ashcroft (maybe you already have) to see the arguments as to why life + 70 is constitutional.
You've changed the definition of the goods. There is ONE source in the world for U2 performances -- U2 itself. That's what concerts are for, to obtain that unique product that only U2 can provide.
BUT, the recordings of the songs are not provided by a monopoly - not anymore - have millions of sources available for repro, are infinitely reproducible at almost no cost, and have a street value of either retail price or free. Amazingly, a lot of people are purchasing the retail package, but free seems to be popular as well. The free market has assigned its values. That the copyright lords do not agree with the reality of the free market doesn't change the reality. The copyright holders should be shudderingly grateful that people are willing to pay anything at all for a 25 cent disc.
So, you think that the artists should only charge for concerts, and should give away the CD's for nothing? Maybe artists shouldn't record CD's at all, and should just perform, and not allowe recording of their shows.
Obviously, they can compete. Bono doesn't seem to be hurtin' for money.
You are right, Bono isn't hurting. But would Bono be where he was today if the record company couldn't have sold cassettes and albums back when U2 started? How would anyone know whether or not U2 could sell out a small club or an arena if there was no measurement of their popularity?
How about another example -- if you are a young singer, just starting out, would you rather be playing small clubs, trying to build up a buzz and get some interest going, and giving away CD's that you paid to produce and record, or would you rather take a check up front, get your CD recorded and produced professionally, and have a record label doing the marketing, distribution, getting you airplay, getting you into videos, getting you onto SNL or Letterman, or whatever. If the record labels couldn't make money selling CD's, then you wouldn't have record labels providing the services labels do.
Now, I'm not an apologist for the labels -- but they do provide a service that an awful lot of artists seem ready and willing to take advantage of, and pay handsomely for. Who are you to tell them that the deal they are making is not a good deal just because YOU would like to pay less for their music.
But Twain's writings are STILL COPYRIGHTED, and will be forever; they are held by an IP concern which trades in the stuff like stock certificates. This is the reality. The works of mankind are now product, never to be released.
Mark Twain died in 1910. Even if he published something on the day he died, it would long be public domain by now. Huckleberry Finn was published in 1885, which means it was public domain in 1899, if I remember my old copyright laws correctly.
Wrappin' it up, I can only throw in my only real, extralegal reason for tossing copyright into the
I understand that's what the constitution says -- I was arguing in the more philosophical sense, because "You should rightly be paid for the original act of creation or performance. Not paid over and over again a hugely inflated price for each damn-near-negligible-cost-to-produce copy thereof" isn't what the constitution says either.
/., and that's the argument that a company shouldn't own the patents that their employees make, but the employees should own the patents and reap the benefits. Well, the current system we have for patents in these cases is essentially the pay-once system -- the employee gets a paycheck -- and people don't seem to like that. I guess maybe it's because somebody else -- the employer, in this case -- is reaping the benefits of the patent. But that's the same thing that would happen here -- if artists were paid once for their product, and that's it, then others would be free to come in an profit from their creations. Maybe its not a complete direct parallel, but I think it helps to point out some of the diverging IP arguments we have here sometimes...
Once an author creates a work, getting paid repeatedly, indefinitely, for that work does not incent him to continue to author.
But how many authors and artists can continue to make a living after publishing only one work, even though they get paid "indefinitely?"
If he can just take his one book (or song or invention or whatever) to the bank for the rest of his and his children's children's children's lives, what motive would he have to continue to produce?
Again, there aren't many authors or artists that can continue to make a living off of a single recording or novel. Maybe it happens once in a while, but most don't make that much even when there product is first printed or published -- the incentive to create another work is the same incentive most of us have every day when we get up and go to work -- to make more money.
Also, BTW, I know you didn't make this argument, but I've seen it a lot on
Now Disney and the **IAs want copyrights and patents to be enforcable indefinitely, because they don't want to have to create something new which would supplant the revenues lost when their copyright protection sunsets.
When was the last time a new album came out from an RIAA member? Don't several hundred new albums come out every year, at least? How many new movies has Disney made in the last few years? True, Disney would lose some income if copyright protection went away, but it is hard to see how Disney is NOT incentivized by the current length of copyrights, unless you want to say that Disney would produce even more movies if they didn't have copyright protections, or record labels would produce and distribute even more CD's if copyright went away.
Actually, there are hundreds of bands that are adequately substitutable for U2 for the average music consumer.
/.!), do you try and purchase specific CD's by specific artists, or do you shop solely on price?
I don't know about that -- when the average music consumer hears a U2 song on the radio, do they go to the music store and decide not to buy the U2 CD because there is something else "adequately subsitutable" for U2 for $.50 less? When you go to a store to buy a CD or buy from Amazon (I know, a big assumption here on
When you hear about a new book or novel, do you purchase that novel or book, or do you try and find a cheaper one, because it should be "adequately substitutable?" Did you buy Half-Life 2, or did you find some "adequately substitutable" shareware or freeware?
The point is, a lot of "creative" works that are the types of things covered by copyright (but not everything, of course) are the types of things that there really aren't adequate substitutes for, at least not until the prices get totally out of wack. I agree that if a no-name band's CD was selling for $2.00, and U2's new CD for $30.00, maybe that would be enough of a price gap to get people to buy the no-name CD (although I suspect that people would mainly just not buy the U2 CD, and not buy the no-name CD either). If you really want to hear the new U2 CD, there simply isn't an adequate substitute. That's why free market ideas don't work so well with creative works.
People don't buy music, art, books, etc., based soley on price -- price is usually an issue, of course, but the price decision becomes more of a buy-or-don't-buy decision, versus buy U2 or buy some other CD decision. That's why traditional notions of competition don't work.
Now, if more than 1 record company was selling the same U2 CD, maybe with different artwork or with some different features of something, THEN maybe you would have a true competive situation, where a consumer could purchase the U2 from whichever record label offered the best combination of price, service and features. But as long as bands, authors, artists, etc., are bound to exclusive licensing and distribution networks, this kind of competition simply can't occur.
BTW, that's also true for bands who sell their own CD's and don't go through a label, or go through indie labels -- there STILL isn't any real competition...
what "the" law says is irrelevant to what rights I choose to grant you under MY law, even if the domain of my law doesn't extend very far past my shirt right now (that WILL change)
/. -- want is not a free market, but a market where freeloaders can continually undercut prices. The free market rules, which would suggest that competition would drive prices down to marginal cost + reasonable profit CANNOT apply when the market consists of a monopolist (like U2) who carries all of the costs and risk associated with creating their product, and freeloaders who carry none of the risk or costs. U2 can never compete with the freeloaders on price as long as they have to recoup their costs before they can turn a profit. Since the costs for the freeloaders approach zero, they can always undercut the monopolist.
I, for one, welcome our Anonymous Coward overlords...
You should rightly be paid for the original act of creation or performance. Not paid over and over again a hugely inflated price for each damn-near-negligible-cost-to-produce copy thereof.
But why is this so bad? Why shouldn't the creator continue to be paid for his creation? Everyone says this is a horrible thing, but why is it a horrible thing? Is it just because YOU don't want to pay for something, or is their some grander scheme?
Copyright monopolies destroying the free market allow them to nigh-on print money, rather than their product price equilibrating near marginal cost of production with a reasonable profit as would happen in a free market.
But what does a "free market" mean in the creative world? There is only 1 U2 or Coldplay out there -- what does a "free market" mean when there is only a single source of the goods? IF there really were a free market for creative goods, that would imply that there were several U2's out there, and they would compete to provide the best product at the lowest price.
However, there is only 1 U2 out there -- with or without copyright laws, if someone wants U2 songs, there is only 1 supplier -- it's a monopoly situation, not a free market. In such a market, copyright law does NOT establish the monnopolies -- they already exist automatically -- it simply attempts to eliminate "freeloaders."
What you -- and most of the folks here on
Copyright, and other IP protections, are the only way that such a monopolist can try and minimize the problem of freeloaders. Is copyright perfect? No, but neither is "no copyright."
You make a very good point -- unfortunately, until a federal judge (or perhaps the Supremes) takes a look at this ruling, the contitutionality really isn't an issue. The congress, NLRB, or any other administrative body can pass whatever rules they want -- you'd like to think that they would consider the constitutionality of their acts, but mostly they don't -- it's not until the judiciary gets to review the ruling, act, law, etc., that the consitutionality gets determined...
and they practically get tricked into it.
Please -- most bands practically trip over themselves to sign with a major label. Everyone thinks that with major label backing, they'll be the next Madonna\Mariah\Britney\whatever. They only get "tricked" because they let the $$$ signs blind them to the realities of the contract.
But that goes back to my statement -- they obviously feel that signing with the major label is the best thing for them, that's why they do it. Maybe if they were better educated as to indie labels and the like, they would choose differently -- but maybe not. Maybe the lure of the big label is more important that the "much better" deal they might get from an indie label.
Actually, I am the OP (though as I'm posting AC, you've no reason to trust me on that) I am in favor of abolishing minimum-wage laws and "contracts OF service" (as opposed to "FOR") totally, as it happens.
Then I certainly give you points for consistency!
The artists who sign with the record companies are not forced to do so at gunpoint. They sign those contract willingly. If they don't like the contract, they should figure out how to produce, market and distribute their music on their own.
The artists signed the contracts -- presumabely they felt they were better off with the record company than without the record company. Who are you to interfere with the artist's right to contract with the record company and decide for yourself who should get what money?
I believe the GP was arguing that the concept of copyright should be eliminated(or, in his own words, "fucked"), and that the state he described would be the "natural" state of the economy following this.
I know -- I just couldn't resist the obvious issue in the poster's comments...
The strength with which the assumption is made smacks slightly of utopian anarchism to me: it is no more inherently believable than the RIAA's scenarios for a future without copyright.
Personally, I tend to think that the free market, as implemented in society as of today, has proven itself not to be particularly well-suited to the distribution of easily-replicated goods, and that we certainly shouldn't dismiss potential solutions to this situation because they are not ideologically compatible with the free market.
I agree 100%.
Besides, in a truely "free" market, we wouldn't have minimum-wage laws or labor laws either -- I mean, what business does the government have telling an employer and an employee how they have to structure their working relationship! A free market would allow freedom to contract -- but I would be that the original poster, along with most others, would be unwilling to give up minimum wage laws and other labor laws because they want a "free" market. You hit it dead on -- there are some things that a free market doesn't deal with very well (at least over the short term -- maybe it would all settle down eventually) and we accept some limitations on the free market to make everything work more smoothly...
Set up a system where anyone can logon to listen to a song. The songs are streamed and can't be copied to a personal machine. Allow anyone access to the system. Limit each song to only one person accessing it at a time (like checking it out). And make sure you own each song on the system. Movies can be used too. Would this be legal and within your rights?
Not in the U.S., at least with respect to music. See 17 U.S.C. 106(6). The answer is not so clear for movies (in the U.S.), but I would suspect it would also be illegal. 17 U.S.C. 106(3) or (4) (can't remember which one) prohibits the "public performance" of a movie without permission; in 17 U.S.C. 101 (the definitions), to "publicly perform" includes:
"(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."
I haven't purused the caselaw here, but I would suspect that these two clauses put together would prohibit your idea with respect to movies.
Libraries (and you) are allowed to loan out you tangible copy of a CD or DVD, but neither you nor the library is allowed to "stream" stuff to others without permission.
Plus, as the Michael Jackson trial showed, if there is a single shred of reasonable doubt then the judge/jury is supposed to return a verdict of not guilty. In theory, this is even supposed to apply even if your personal belief is that the accused is guilty as sin, although perhaps not in practice.
But the record companies are suing, which means this is a civil matter, not a criminal matter. Of course, in a criminal matter (in the U.S., at least), you need to prove guilt "beyond a reasonable doubt," as you correctly note. However, in a civil case (in the U.S. again), you only need to prove liability be a "preponderance of the evidence" -- in other words, "more likely than not."
So, in the case of the open access point, you only need to prove that it is more likely than not that YOU are the one doing the file sharing -- you don't have to prove it beyond a reasonable doubt.
If there are no "unauthorized" music files on your PC, nor any evidence that there ever were, then that's reasonable doubt in my book.
That's probably good enough by either standard.
if there were said files on the PC, there is a already a legal precedent in the UK for acquittal in a computer crime case on the grounds that the PC had been compromised and may have been used without the owner's knowledge.
And while that was clearly enough to raise a "resonable doubt" in a criminal case, it's unlikely that "may have been compromised" would be sufficient to overcome the "more likely than not" standard.