One of the opinions often put forward on Slashdot is that if you 'own' a song in any format (record, cd, what have you), then you have a license to use that song on any media you desire (mp3, ogg vorbis, heaven-forbid... real audio). This stems from the argument that what you're purchasing is a license to use the intellectual property. The physical object (the disk or media) is actually incidental.
This opinion would be wrong. What you have when you buy a copy of a song is this: 1) you own the copy of the song in whatever format it came in, and 2) you "own" a fair use right to make a copy of that song for personal use (which can be in whatever format you want). A license this certainly isn't; it's just plain old copyright law, and this particular fair use right is actually specific to music. (You don't have a fair use right, for example, to scan the entire Harry Potter book into a PDF so that you can bring it with you on your PDA instead of the 2 lbs. of paper it originally came on. The media for literary works is most certainly not "incidental.")
As for the translations question, it's very well-settled that translations are original, derivative works; language isn't a medium like paper or optical storage. This, of course, is because every translation requires original thought and original contribution. It's not a straight-forward copy. Thus, we give separate copyright privileges to creators of translations. (Don't forget, though, that every translation is a derivative work; this means that without permission, the translation infringes the original content creator's copyright rights.)
It doesn't matter that it was filed on Dec. 28, 2001. Patent *protection* runs from the date of filing, sure, but for purposes of prior art, the USPTO is worried about when the subject matter was *invented*. Of course, this is a question that's often argued about. At any rate, for most purposes, the date of invention means "reduction to practice". If MSFT reduced to practice the subject of the patent before Dec. 12, 2001, then obviously no prior art.
RIAA has alread attacked cell phone "ring tones" as piracy. They are probably at well under 1% of 64kbs and cellphones aready set a 30 second cap on them.
Good point! Plus, they're just ring tones! Their whole purpose is to indicate a call is coming in. That was never the purpose of the artist in writing the songs (when you have such a large disconnect between purposes, fair use is easier to argue). Perhaps there's an argument that they are derivative works. Still, there you see how copyright is breaking down...:(
Yeah, I see the analogy, but I think cases with thumbnails turn on whether the thumbnails are incidentally or purposefully used (see, for example, the Arribasoft case). If the thumbnails are part of a big database of what essentially amounts to links to the original sources, then that's OK. Arriba wasn't selling the images themselves, I don't think; having thumbnails was incidental to the main purpose of having an index of links which lead back to the sources.
But yeah, the fact that thumbnails are, well, thumbnails does help the analysis. After all, much of the value of any image is in its "physical" quality. If there were some service like mp3.google.com that served up 64 kbs mp3's and linked back to the source, maybe that would OK. Personally, I think a "thumbnail" mp3 is more like a 20 second clip, but that might be just me.
If Corbis didn't get the WSJ's permission, they would almost definitely be infringing. Section 107 is the general statutory fair use provision, your choice of statute is correct. But they copied the entire article -- big no-no for fair use -- and they're doing it for purposes arguably much more commercial than noncommercial (the fact that this article is in a very recent issue of the WSJ doesn't help in this regard, and of course neither does its appearance on Corbis's corporate website). Those two things together are probably deadly, at least with non-digital stuff. The seminal case I'm thinking of -- American Geophysical Union v. Texaco -- involved photocopying complete journal articles for distribution among the scientists at Texaco, and Texaco lost. Corbis's PDF wouldn't be much different.
This minimal bitrate fair use idea is interesting, though. I've never heard of this argument winning. Do you have any cites? At any rate, the quality of the PDF isn't very important. In the past, direct reproduction of copyrighted material wasn't very good by nature, but unauthorized copies were still infringing. It shouldn't really be different now, at least for texts. I can definitely think of fairuse arguments for minimal bitrate MP3s, but I'm not so sure they'd win (which is why I'd love to read an opinion that thought otherwise).
FYI, Al Capone didn't neglect to pay his income taxes. He couldn't pay his income taxes, because if he did he would have admitted to committing all sorts of crimes. The beauty of the Internal Revenue Code is that it demands that you report ALL income, legally or illegally obtained. Obviously, Al Capone wasn't about to report his illegal activities to the federal government, but that meant he had to take the risk that the government could get him for income tax evasion.
Gosh, that's cynical. At any rate, the day I'm forced to *pay* for spam by my cell phone carrier is the day I cancel my service. Plus, I will refuse to pay the fee, and I will make my disgust known as far up the corporate hierarchy as possible. And I think -- I hope -- that's what the carriers are afraid of: thousands of customers abruptly cancelling service and complaining. It's pretty expensive in any competitive industry to get new customers, which is why companies are often willing to bend over backwards to keep you. Have you ever tried to cancel Sprint PCS service? It's hard, but only because they offer you such great deals if you stay. (I hate Sprint PCS coverage and customer service, though, so I still left, though I was seriously tempted.)
Also, with all the attention spam has been getting in the media and in the legislature, I think cell phone carriers would rather kill the problem before it hits hard than be the industry "spam has spread to."
Anyway, I actually don't use SMS, but I thought in the U.S. you didn't have to pay for incoming messages? I have no idea, really. (If not, I may have paid for the two incoming messages I've ever received!)
I guess that's true. But the product had better be practically worthless for me to value it over the 30 seconds of annoyance -- and that's if I bother to pay attention. Normally, I'd just change the channel, or do something else. I guess it all depends on how annoyed one gets!
are products I haven't bought for years because of annoying commercials.
That's such strange behavior to me. The only use I have for ads is the information they give that new products exist. Otherwise, they're completely irrelevant to me, and yes, sometimes they're even annoying. But I would never base my buying decision for a product on whether the commercial for the product is annoying. What does that have to do with the product itself?
The supreme court has ruled that there are certain fair uses to copyrighted material. Among which are the making of copies for personal use, time shifting, media shifting, or backup.
Well, the Supreme Court has interpreted *statutory* fair use rights. But at any rate we're talking about very different things. What you're talking about comes from very different statutory sources: the right to make "personal backups" -- which is actually technically for computer programs -- is in section 117 of the copyright act. The right to make personal copies of music is part of the AHRA (this is where space shifting comes from). Time shifting is a fair use under 107 (the general statutory fair use provision), but not always.
When you purchase a copyrighted product, you effectively become a licensee of that content. It's limited in that you can't redistribute the content nor play it in a public place, but you OWN that content, you don't own the copyright to it, but you own it and can do what you please with your copy or copies.
This is absolutely not true. You become a licensee *only if there is a license*, and in any case that license will always sit on top of copyright law. License or no license, you are subject to the provisions under copyright law. Either way, you most certainly do not own the content. The copyright owner owns the content. You own the copy. You can do whatever you want, subject to copyright law and the license (if there is one), with your copy, but you do *not* own the content.
When someone makes a song, or movie, or book or anything else that is copyrightable, he makes a copytight on that original piece of work.
Yes...
The copyright is not on a particular rendition of it. When the person who wrote the happy birthday song wrote it, it's the song that is copyrighted, not the particular piece of sheet music that he put out. He owns the SONG. It's not like the only legitimate copies of it have to come from his original piece of sheet music or from his own first recording.
You misunderstand when I use the word "copy" -- "copy", in the copyright law sense, is not a reproduction of a particular physical manifestation of a work, but any kind of reproduction of the content of the work. See the definition of "copies" in section 101 of the copyright act:
'Copies' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term 'copies' includes the material object, other than a phonorecord, in which the work is first fixed.
When I say "copy," I'm certainly not talking about a direct reproduction of, say, the content creator's sheet of paper. I am talking about a physical reproduction of the content.
The SONG is the big deal not the media he put it on (it does have to be on a medium to get copyrighted, but that's incidental).
Yes, you're right. But then you're being inconsistent: if the song is the big deal, then why would a copyright owner give YOU, the consumer, "ownership" (as you put it) of the content when you buy the CD? The song is the most important thing! I think you are misunderstanding what you're getting when you buy that copy.
When someone has purchased a copyrighted product, they have fair use to the content, if they make a copy of it for themselves,
They have certain fair uses to the content.
obviously that's cool, you said it yourself... what's the difference if someone else makes the copy for them? There is no difference. I could take my DMB CD over to my buddy's house, and make my fair use copy over there, right?
There is a big difference if you leave the copy with your buddy. There is also a big difference if you use your buddy's CD to make the copy, even if you own it. There i
He absolutely does *not* have the right to the content -- that is not what copyright is all about. When you buy a CD, you are *not buying the right to the content.* You are buying a COPY, which the content-maker (or his assignee or licensee) has rightfully authorized. No one else has the right to make a copy. The only exception is a person who has bought a legitimate copy and wants to make a copy of *that legitimate copy* for his personal use. You make think there's "no distinction" because it's moving 1s and 0s. That's correct, from a physical point of view. But the legal distinction is EXTREMELY clear. There's a reason why it's called "copyright" and not "right to content."
My analogy with Tower Records was not flawed, although it was oversimplified. Let's make it finer, then: do you think you could go into Tower Records, grab the DMB CD, show the cashier your old receipt for the lost DMB CD, and then be allowed to pay $0.25 on the counter to pay for the media/manufacturing cost of the CD?
You're right, technically you're not violating the law.
No, he *is* violating the law. Pulling down a copy of the DMB song from some random person instead of rooting through his "crap" is absolutely not a fair use. Do you think he could walk into Tower Records and take another DMB CD because he "can't find his copy under his crap"? Certainly not. The point is that copyright protects the copyright owner's right to make *copies* of his work. Fair use and recent copyright law amendments allow someone to make a copy for personal use. Pulling down someone else's copy -- which necessarily involves making a copy for yourself -- is NOT FAIR USE. You might think it's a technical issue, and to some extent it is (after all, he could have made a legit copy from his CD, if he could find it). But not understanding *why* one particular situation is a fair use and another is not shows a misunderstanding of how the copyright laws work.
The rationale behind patents is that creators need a reason to create, and if anyone can steal their idea once they've created it, they probably won't bother.
See, this is the misconception that makes people miss the boat, if I read you correctly. The rationale isn't that creators need a reason to create, and patent protection gives them that reason. This implies that without patent protection, we would have no innovation. That's certainly not true, because a certain amount of ANY patentable inventions will always be created regardless of the amount of protection an inventor gets. This is true of business processes, compounds, drugs, mechanical things, new life forms, etc. The point of patent protection (and IP protection in general) is to incentivize an incremental amount of innovation over what would exist without it -- economically, up to the point where the marginal cost of added IP protection equals the marginal increase of innovation.
Thus, IP laws try to form a delicate balance to encourage a certain amount of extra innovation. Lately, we've seen this balance completely ignored by certain parties -- see the DMCA, the Sonny Bono copyright extension act, etc. -- who seem to use an entirely different basis to justify the laws' existence (for example, the "sweat of the brow" argument, or even just a misguided attempt to "propertize" further IP). But normally, a balance should exist.
With respect to business method patents, there's certainly an argument to be made that business methods should be allowed. Our economy is increasingly based on more sophisticated revenue generators than making and selling widgets. We have certainly benefited from this fact, and the economy has certainly expanded because of it. Knowing this, and knowing that there was probably a bit of room in IP law to expand protection without destroying the economy, it made sense to extend patent protection to business methods because the incremental benefit probably exceeded the cost to society of the protection. And so it goes.
Look at it this way: there are a LOT of patented business methods out there (it's now the most popular kind of invention to get protected). Yet, notwithstanding the dot-com bubble-burst, do you honestly think that the economy has regressed? No one would argue that; most would argue that the economy has indeed expanded. Sure, there are instances of patent litigation or threats that seem outrageous; they probably are outrageous, and evidence a hole or a rough spot in IP law that needs to be fixed. But on the whole, having patent protection for business methods as a concept has probably helped society.
Now, certainly, with lawmakers and judges out there that seem to think the DMCA and Sonny Bono are good, reasonable things, patent protection for business methods may get out of hand. That would be a very bad thing to happen. But that doesn't mean IP law is bad, or in particular business methods shouldn't get protection.
Micron had a strong argument that Hynix had an unfair advantage, not that a tariff would be the best way to alleviate the advantage. They are, I think, two separate issues.
Micron would prefer that its acquisition offer for Hynix had gone through. That would probably have been the best thing for the Hynix shareholders. Tariffs won't help.
Re:"Actively searching for new suppliers"?
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My understanding is that a "natural monopoly" is an industry where it "seems natural" that one company should have a monopoly, because for multiple companies to compete would be an inefficient and wasteful use of resources - for example, the telephone network.
I'm sorry; you're right about the use of the term. I meant to describe the situation where a company has achieved monopoly status by normal business practice. The simplest adjective I thought of was "natural", even though it's actually used somewhat differently. Kinda slipped my mind.:)
Almost all companies try to gain market share. There's no line drawn in the sand between trying to get 20% and trying to get 100%. Trying to achieve monopoly status is not illegal.
Yes, that's why specified "unreasonable business methods."
Trying to maintain existing monopoly status, by doing things like erecting artificial barriers to entry (which is perfectly legal for a company that has not achieved monopoly status) is illegal.
I suppose it depends on what you mean by "artificial barriers to entry" (I apologize again for having poor diction), but even the under the broadest definition I can't think of situations where erecting an artificial barrier to entry is legal. In a child comment, you suggest that you could create an OS and license it to a PC maker with the condition that they cannot sell any PCs with any other OS. You're right that the contract would probably not be illegal under antitrust laws, but then again, you're not really erecting a barrier to entry (unless you're Microsoft). In my mind, when I talk about erecting "artificial barriers to entry", I necessarily imply a monopolist doing the erecting.
Hynix's directors and also its creditors approved the plan to sell the company to Micron. The deal was called off when Hynix's union threatened to burn manufacturing facilities.
It's true that they approved an MOU (Memorandum of Understanding) to sell the company, but that's not the same thing as approving the deal. The deal fell through not just because of the union's threat -- after all, such an action would obviously be illegal, and anyway it's the job of the police force to prevent such a thing from happening. I don't think anyone really bought that reasoning.
Gov't-owned banks and private banks all agreed make additional loans when Hynix requested a bailout.
The fact that the private banks participated in the bailout means little. They really had no choice but to participate -- if Hynix wasn't going to approve the merger deal, any bailout deal would essentially force the private banks to go along with it if they wanted to keep their loans senior and, if it also involved convertible debt, their equity non-diluted.
I didn't know that the Korean government sold some of their banks to foreign investors; that's interesting. But the general foreign perception was that Korean interests wanted to keep Hynix out of foreign hands. I have no idea who might have been acceptable to Hynix, though.
How will this tariff thing work if the chips are produced dometically?
Good question -- I have no idea!:) But like I said, I don't really support the tariff. It's a principle thing, for me, and the fact that a lot of Hynix chips are produced in Oregon just underlines the idea that tariffs are useless at best, harmful/costly at worst.
Not that I support the tariff, but it seems like slashdotters don't know the whole story, so let me explain.
Hynix, for the last few years, has been losing a LOT of money, mostly due to the commoditization of DRAM and general Asian economic malaise. A couple years ago, Micron offered to buy Hynix. Hynix refused and instead kept taking out loans and otherwise attempted to stay afloat. (Hynix was bailed out a couple times after the first proposal. Some of these loans were from government owned banks; also, apparently, Hynix received some direct subsidies from the Korean government.)
Last year, though, Hynix's bad fortune came to a head, and the company was on the verge of collapse. Micron again offered to buy Hynix, and after extensive negotiations, it seemed like the merger would go through. But for some inexplicable reason, at the last minute Hynix refused the offer, claiming it wasn't high enough. (I say inexplicable because there were no other buyers or potential buyers and Hynix was ridiculously deeply indebted -- in this situation (i.e., close to bankruptcy with a viable way out), refusing to merge was almost probably (at least in America) not in the best interests of its shareholders.) Some creditors tried to band together and force Hynix to sell itself (after the two bailouts, creditors were the biggest shareholders) but that didn't pan out.
As Hynix's debt grew and grew and its financial state deteriorated (even after two huge bailouts) everyone knew that Hynix needed to get acquired -- even the government encouraged it. However, Korean politicians, civic groups and industry leaders outwardly opposed Hynix's acquisition by a foreign company; they wanted to figure out a way to keep Hynix Korean. From what I remember, a few months ago Hynix went through a restructuring/recapitalization and got some debt relief, but its financial prospects haven't improved.
Hynix's survival is very, very strange given its circumstances, except when you realize that its survival is only due to tremendous political pressure to keep the company alive for a Korean acquirer. Otherwise, I think that financial analysts have uniformly agreed that Hynix needs to get acquired by somebody.
For better or for worse, Micron had a strong argument. Hynix should probably not be independent right now, and is only so because of the direct (and indirect) help of the Korean government. Also, the overall effect has been really bad: Hynix's non-creditor shareholders have been screwed repeatedly in the bailouts (convertible debt is great for creditors, horrible for current shareholders); Korean government-owned banks have arguably wasted insane amounts of money by riskily throwing it Hynix; and now, prices for DRAM will artificially go up because of the tariffs.
Re:"Actively searching for new suppliers"?
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only when a monopoly acts illegally by using its existing monopoly to attempt to gain another monopoly in an unrelated market that there is a problem.
But this isn't accurate, either. You're right that monopolies are legal in the U.S. -- natural monopolies, that is. But any time a company tries to acquire a monopoly or maintain a natural monopoly using unreasonable methods, the company is in trouble with the Sherman Act and the Clayton Act. Thus, even if a company attained a natural monopoly legally and didn't try to enter new markets (and attempt to leverage its existing monopoly to attain one in the new market, like you suggest), they will still be liable under Sherman/Clayton if they do things like erect artificial barriers to entry or kill or suppress in various ways new entrants to their market.
Well, I know that lawyers use this word all the time, although to be honest the only context in which I hear it regularly is in a legal context. But look it up on dictionary.com.
You severely mischaracterize inhouse attorneys when it comes to litigation. Inhouse counsel, at least in my experience, rarely gives more than superficial advice about litigation -- 1) 90% of them don't have litigation experience, but rather corporate law experience, and so barely know more about what goes on in a court room than the average "Law and Order" viewer, and 2) if the situation called for more analysis about whether the company should sue, inhouse counsel will invariably turn to outside counsel for advice, anyway. The purpose of inhouse counsel is to help negotiate deals and provide a first person that the business people can call for advice before going to outside law firms. Obviously, after a certain point, it's cheaper to have inhouse counsel to answer the easy questions (and provide direction or options for the hard questions) than to go to outside counsel every time. Litigation is *always* a hard question, requiring someone with good experience. Some rich companies will have litigation inhouse counsel -- for example, I think Google does -- but I can guarantee you that even they will invariably end up retaining outside counsel, if they decide it's worth it to litigate.
And that's the thing: inhouse counsel is *loath* to recommend lawsuits, frivolous or meritorious, because it's extremely expensive to retain outside counsel. Yet it's absolutely necessary to have outside counsel because inhouse counsel never has the resources to litigate on behalf of the company. Therein lies the problem: the expense. (If things worked the way you think, there would be a lot more lawsuits *started* by companies -- but in reality the vast majority of suits are initiated by regular people, sometimes against companies but usually against other individuals.) And who do you think has the last word on expense? The business people, of course.
Also, I hope it's obvious that inhouse counsel doesn't get anything more whether they litigate or not -- companies hire inhouse counsel to SAVE money, and they do this by keeping the inhouse on salary instead of paying by the hour. Also, having to retain outside counsel makes inhouse counsel look ineffectual, even if for all practical purposes it's impossible to do the equivalent work inhouse. No person likes to look ineffectual.
My main point, really, is that inhouse counsel has no incentive to encourage frivolous litigation.
As for lawyers being assholes, my experience is that litigators tend to have a much higher percentage of assholes than corporate lawyers. This makes sense, because litigation tend to attract people with bigger egos -- those kind of people can't stand being in the background of deals, like corporate lawyers usually are. It also explains why the general public thinks so poorly of lawyers -- litigators are always in the spotlight (doing a TV show that realistically portrays corporate law would be the most boring show ever created), and half the time litigators are always on the "wrong" side.:)
Of course both sides incurred legal fees. Rarely do lawyers do contingency work; plaintiff-side lawyers who work on class actions or are suing corporations in products liability cases are really the only ones who might work on contingency.
It doesn't matter if there was no trial. The motions involved are pre-trial motions -- Google motioned to dismiss, and SearchKing asked for a preliminary injunction. Judge Miles-LaGrange granted the motion to dismiss, and (obviously) denied the motion for a PI. A PI is a temporary order by the court to prevent the defendant from doing whatever it is that the plaintiff is suing about because it will cause immediate hardship (it's more complicated than that, but essentially that's the point).
SearchKing isn't obligated to pay Google. The are a very few, specific circumstances in which a loser in an American court must pay the winner, and this situation isn't one of them. The other possibility would have been pursuant to a settlement agreement, but that's negotiated and thus different in every case.
Just wanted to say: excellent post. I might not agree with everything you say (though I do agree with a lot of it), it's very well-thought out and insightful. Slashdotters would do well to read it and actually learn about the "other" side of reality, rather than rant on about things about which they only have cursory or secondhand knowledge.
told us that the legal and medical professions still use WP5.1 religiously both because everyone's so used to it and because everything in the program since that version just slows them down. Remember, these people are the ones typing the volumes and volumes of legal and medical documents out there.
At least at big law firms, no one uses WP5.1 anymore -- everyone uses Word. Still, many firms only recently (within the past 5 years or so) transitioned from it.
Slashdot Mirror
One of the opinions often put forward on Slashdot is that if you 'own' a song in any format (record, cd, what have you), then you have a license to use that song on any media you desire (mp3, ogg vorbis, heaven-forbid... real audio). This stems from the argument that what you're purchasing is a license to use the intellectual property. The physical object (the disk or media) is actually incidental.
This opinion would be wrong. What you have when you buy a copy of a song is this: 1) you own the copy of the song in whatever format it came in, and 2) you "own" a fair use right to make a copy of that song for personal use (which can be in whatever format you want). A license this certainly isn't; it's just plain old copyright law, and this particular fair use right is actually specific to music. (You don't have a fair use right, for example, to scan the entire Harry Potter book into a PDF so that you can bring it with you on your PDA instead of the 2 lbs. of paper it originally came on. The media for literary works is most certainly not "incidental.")
As for the translations question, it's very well-settled that translations are original, derivative works; language isn't a medium like paper or optical storage. This, of course, is because every translation requires original thought and original contribution. It's not a straight-forward copy. Thus, we give separate copyright privileges to creators of translations. (Don't forget, though, that every translation is a derivative work; this means that without permission, the translation infringes the original content creator's copyright rights.)
It doesn't matter that it was filed on Dec. 28, 2001. Patent *protection* runs from the date of filing, sure, but for purposes of prior art, the USPTO is worried about when the subject matter was *invented*. Of course, this is a question that's often argued about. At any rate, for most purposes, the date of invention means "reduction to practice". If MSFT reduced to practice the subject of the patent before Dec. 12, 2001, then obviously no prior art.
RIAA has alread attacked cell phone "ring tones" as piracy. They are probably at well under 1% of 64kbs and cellphones aready set a 30 second cap on them.
:(
Good point! Plus, they're just ring tones! Their whole purpose is to indicate a call is coming in. That was never the purpose of the artist in writing the songs (when you have such a large disconnect between purposes, fair use is easier to argue). Perhaps there's an argument that they are derivative works. Still, there you see how copyright is breaking down...
Yeah, I see the analogy, but I think cases with thumbnails turn on whether the thumbnails are incidentally or purposefully used (see, for example, the Arribasoft case). If the thumbnails are part of a big database of what essentially amounts to links to the original sources, then that's OK. Arriba wasn't selling the images themselves, I don't think; having thumbnails was incidental to the main purpose of having an index of links which lead back to the sources.
But yeah, the fact that thumbnails are, well, thumbnails does help the analysis. After all, much of the value of any image is in its "physical" quality. If there were some service like mp3.google.com that served up 64 kbs mp3's and linked back to the source, maybe that would OK. Personally, I think a "thumbnail" mp3 is more like a 20 second clip, but that might be just me.
If Corbis didn't get the WSJ's permission, they would almost definitely be infringing. Section 107 is the general statutory fair use provision, your choice of statute is correct. But they copied the entire article -- big no-no for fair use -- and they're doing it for purposes arguably much more commercial than noncommercial (the fact that this article is in a very recent issue of the WSJ doesn't help in this regard, and of course neither does its appearance on Corbis's corporate website). Those two things together are probably deadly, at least with non-digital stuff. The seminal case I'm thinking of -- American Geophysical Union v. Texaco -- involved photocopying complete journal articles for distribution among the scientists at Texaco, and Texaco lost. Corbis's PDF wouldn't be much different.
This minimal bitrate fair use idea is interesting, though. I've never heard of this argument winning. Do you have any cites? At any rate, the quality of the PDF isn't very important. In the past, direct reproduction of copyrighted material wasn't very good by nature, but unauthorized copies were still infringing. It shouldn't really be different now, at least for texts. I can definitely think of fairuse arguments for minimal bitrate MP3s, but I'm not so sure they'd win (which is why I'd love to read an opinion that thought otherwise).
FYI, Al Capone didn't neglect to pay his income taxes. He couldn't pay his income taxes, because if he did he would have admitted to committing all sorts of crimes. The beauty of the Internal Revenue Code is that it demands that you report ALL income, legally or illegally obtained. Obviously, Al Capone wasn't about to report his illegal activities to the federal government, but that meant he had to take the risk that the government could get him for income tax evasion.
Gosh, that's cynical. At any rate, the day I'm forced to *pay* for spam by my cell phone carrier is the day I cancel my service. Plus, I will refuse to pay the fee, and I will make my disgust known as far up the corporate hierarchy as possible. And I think -- I hope -- that's what the carriers are afraid of: thousands of customers abruptly cancelling service and complaining. It's pretty expensive in any competitive industry to get new customers, which is why companies are often willing to bend over backwards to keep you. Have you ever tried to cancel Sprint PCS service? It's hard, but only because they offer you such great deals if you stay. (I hate Sprint PCS coverage and customer service, though, so I still left, though I was seriously tempted.)
Also, with all the attention spam has been getting in the media and in the legislature, I think cell phone carriers would rather kill the problem before it hits hard than be the industry "spam has spread to."
Anyway, I actually don't use SMS, but I thought in the U.S. you didn't have to pay for incoming messages? I have no idea, really. (If not, I may have paid for the two incoming messages I've ever received!)
I guess that's true. But the product had better be practically worthless for me to value it over the 30 seconds of annoyance -- and that's if I bother to pay attention. Normally, I'd just change the channel, or do something else. I guess it all depends on how annoyed one gets!
are products I haven't bought for years because of annoying commercials.
That's such strange behavior to me. The only use I have for ads is the information they give that new products exist. Otherwise, they're completely irrelevant to me, and yes, sometimes they're even annoying. But I would never base my buying decision for a product on whether the commercial for the product is annoying. What does that have to do with the product itself?
Well, the Supreme Court has interpreted *statutory* fair use rights. But at any rate we're talking about very different things. What you're talking about comes from very different statutory sources: the right to make "personal backups" -- which is actually technically for computer programs -- is in section 117 of the copyright act. The right to make personal copies of music is part of the AHRA (this is where space shifting comes from). Time shifting is a fair use under 107 (the general statutory fair use provision), but not always.
When you purchase a copyrighted product, you effectively become a licensee of that content. It's limited in that you can't redistribute the content nor play it in a public place, but you OWN that content, you don't own the copyright to it, but you own it and can do what you please with your copy or copies.
This is absolutely not true. You become a licensee *only if there is a license*, and in any case that license will always sit on top of copyright law. License or no license, you are subject to the provisions under copyright law. Either way, you most certainly do not own the content. The copyright owner owns the content. You own the copy. You can do whatever you want, subject to copyright law and the license (if there is one), with your copy, but you do *not* own the content.
When someone makes a song, or movie, or book or anything else that is copyrightable, he makes a copytight on that original piece of work.
Yes...
The copyright is not on a particular rendition of it. When the person who wrote the happy birthday song wrote it, it's the song that is copyrighted, not the particular piece of sheet music that he put out. He owns the SONG. It's not like the only legitimate copies of it have to come from his original piece of sheet music or from his own first recording.
You misunderstand when I use the word "copy" -- "copy", in the copyright law sense, is not a reproduction of a particular physical manifestation of a work, but any kind of reproduction of the content of the work. See the definition of "copies" in section 101 of the copyright act:
When I say "copy," I'm certainly not talking about a direct reproduction of, say, the content creator's sheet of paper. I am talking about a physical reproduction of the content.
The SONG is the big deal not the media he put it on (it does have to be on a medium to get copyrighted, but that's incidental).
Yes, you're right. But then you're being inconsistent: if the song is the big deal, then why would a copyright owner give YOU, the consumer, "ownership" (as you put it) of the content when you buy the CD? The song is the most important thing! I think you are misunderstanding what you're getting when you buy that copy.
When someone has purchased a copyrighted product, they have fair use to the content, if they make a copy of it for themselves,
They have certain fair uses to the content.
obviously that's cool, you said it yourself... what's the difference if someone else makes the copy for them? There is no difference. I could take my DMB CD over to my buddy's house, and make my fair use copy over there, right?
There is a big difference if you leave the copy with your buddy. There is also a big difference if you use your buddy's CD to make the copy, even if you own it. There i
He absolutely does *not* have the right to the content -- that is not what copyright is all about. When you buy a CD, you are *not buying the right to the content.* You are buying a COPY, which the content-maker (or his assignee or licensee) has rightfully authorized. No one else has the right to make a copy. The only exception is a person who has bought a legitimate copy and wants to make a copy of *that legitimate copy* for his personal use. You make think there's "no distinction" because it's moving 1s and 0s. That's correct, from a physical point of view. But the legal distinction is EXTREMELY clear. There's a reason why it's called "copyright" and not "right to content."
My analogy with Tower Records was not flawed, although it was oversimplified. Let's make it finer, then: do you think you could go into Tower Records, grab the DMB CD, show the cashier your old receipt for the lost DMB CD, and then be allowed to pay $0.25 on the counter to pay for the media/manufacturing cost of the CD?
You're right, technically you're not violating the law.
No, he *is* violating the law. Pulling down a copy of the DMB song from some random person instead of rooting through his "crap" is absolutely not a fair use. Do you think he could walk into Tower Records and take another DMB CD because he "can't find his copy under his crap"? Certainly not. The point is that copyright protects the copyright owner's right to make *copies* of his work. Fair use and recent copyright law amendments allow someone to make a copy for personal use. Pulling down someone else's copy -- which necessarily involves making a copy for yourself -- is NOT FAIR USE. You might think it's a technical issue, and to some extent it is (after all, he could have made a legit copy from his CD, if he could find it). But not understanding *why* one particular situation is a fair use and another is not shows a misunderstanding of how the copyright laws work.
The rationale behind patents is that creators need a reason to create, and if anyone can steal their idea once they've created it, they probably won't bother.
See, this is the misconception that makes people miss the boat, if I read you correctly. The rationale isn't that creators need a reason to create, and patent protection gives them that reason. This implies that without patent protection, we would have no innovation. That's certainly not true, because a certain amount of ANY patentable inventions will always be created regardless of the amount of protection an inventor gets. This is true of business processes, compounds, drugs, mechanical things, new life forms, etc. The point of patent protection (and IP protection in general) is to incentivize an incremental amount of innovation over what would exist without it -- economically, up to the point where the marginal cost of added IP protection equals the marginal increase of innovation.
Thus, IP laws try to form a delicate balance to encourage a certain amount of extra innovation. Lately, we've seen this balance completely ignored by certain parties -- see the DMCA, the Sonny Bono copyright extension act, etc. -- who seem to use an entirely different basis to justify the laws' existence (for example, the "sweat of the brow" argument, or even just a misguided attempt to "propertize" further IP). But normally, a balance should exist.
With respect to business method patents, there's certainly an argument to be made that business methods should be allowed. Our economy is increasingly based on more sophisticated revenue generators than making and selling widgets. We have certainly benefited from this fact, and the economy has certainly expanded because of it. Knowing this, and knowing that there was probably a bit of room in IP law to expand protection without destroying the economy, it made sense to extend patent protection to business methods because the incremental benefit probably exceeded the cost to society of the protection. And so it goes.
Look at it this way: there are a LOT of patented business methods out there (it's now the most popular kind of invention to get protected). Yet, notwithstanding the dot-com bubble-burst, do you honestly think that the economy has regressed? No one would argue that; most would argue that the economy has indeed expanded. Sure, there are instances of patent litigation or threats that seem outrageous; they probably are outrageous, and evidence a hole or a rough spot in IP law that needs to be fixed. But on the whole, having patent protection for business methods as a concept has probably helped society.
Now, certainly, with lawmakers and judges out there that seem to think the DMCA and Sonny Bono are good, reasonable things, patent protection for business methods may get out of hand. That would be a very bad thing to happen. But that doesn't mean IP law is bad, or in particular business methods shouldn't get protection.
Micron had a strong argument that Hynix had an unfair advantage, not that a tariff would be the best way to alleviate the advantage. They are, I think, two separate issues.
Micron would prefer that its acquisition offer for Hynix had gone through. That would probably have been the best thing for the Hynix shareholders. Tariffs won't help.
My understanding is that a "natural monopoly" is an industry where it "seems natural" that one company should have a monopoly, because for multiple companies to compete would be an inefficient and wasteful use of resources - for example, the telephone network.
:)
I'm sorry; you're right about the use of the term. I meant to describe the situation where a company has achieved monopoly status by normal business practice. The simplest adjective I thought of was "natural", even though it's actually used somewhat differently. Kinda slipped my mind.
Almost all companies try to gain market share. There's no line drawn in the sand between trying to get 20% and trying to get 100%. Trying to achieve monopoly status is not illegal.
Yes, that's why specified "unreasonable business methods."
Trying to maintain existing monopoly status, by doing things like erecting artificial barriers to entry (which is perfectly legal for a company that has not achieved monopoly status) is illegal.
I suppose it depends on what you mean by "artificial barriers to entry" (I apologize again for having poor diction), but even the under the broadest definition I can't think of situations where erecting an artificial barrier to entry is legal. In a child comment, you suggest that you could create an OS and license it to a PC maker with the condition that they cannot sell any PCs with any other OS. You're right that the contract would probably not be illegal under antitrust laws, but then again, you're not really erecting a barrier to entry (unless you're Microsoft). In my mind, when I talk about erecting "artificial barriers to entry", I necessarily imply a monopolist doing the erecting.
Hynix's directors and also its creditors approved the plan to sell the company to Micron. The deal was called off when Hynix's union threatened to burn manufacturing facilities.
:) But like I said, I don't really support the tariff. It's a principle thing, for me, and the fact that a lot of Hynix chips are produced in Oregon just underlines the idea that tariffs are useless at best, harmful/costly at worst.
It's true that they approved an MOU (Memorandum of Understanding) to sell the company, but that's not the same thing as approving the deal. The deal fell through not just because of the union's threat -- after all, such an action would obviously be illegal, and anyway it's the job of the police force to prevent such a thing from happening. I don't think anyone really bought that reasoning.
Gov't-owned banks and private banks all agreed make additional loans when Hynix requested a bailout.
The fact that the private banks participated in the bailout means little. They really had no choice but to participate -- if Hynix wasn't going to approve the merger deal, any bailout deal would essentially force the private banks to go along with it if they wanted to keep their loans senior and, if it also involved convertible debt, their equity non-diluted.
I didn't know that the Korean government sold some of their banks to foreign investors; that's interesting. But the general foreign perception was that Korean interests wanted to keep Hynix out of foreign hands. I have no idea who might have been acceptable to Hynix, though.
How will this tariff thing work if the chips are produced dometically?
Good question -- I have no idea!
Not that I support the tariff, but it seems like slashdotters don't know the whole story, so let me explain.
Hynix, for the last few years, has been losing a LOT of money, mostly due to the commoditization of DRAM and general Asian economic malaise. A couple years ago, Micron offered to buy Hynix. Hynix refused and instead kept taking out loans and otherwise attempted to stay afloat. (Hynix was bailed out a couple times after the first proposal. Some of these loans were from government owned banks; also, apparently, Hynix received some direct subsidies from the Korean government.)
Last year, though, Hynix's bad fortune came to a head, and the company was on the verge of collapse. Micron again offered to buy Hynix, and after extensive negotiations, it seemed like the merger would go through. But for some inexplicable reason, at the last minute Hynix refused the offer, claiming it wasn't high enough. (I say inexplicable because there were no other buyers or potential buyers and Hynix was ridiculously deeply indebted -- in this situation (i.e., close to bankruptcy with a viable way out), refusing to merge was almost probably (at least in America) not in the best interests of its shareholders.) Some creditors tried to band together and force Hynix to sell itself (after the two bailouts, creditors were the biggest shareholders) but that didn't pan out.
As Hynix's debt grew and grew and its financial state deteriorated (even after two huge bailouts) everyone knew that Hynix needed to get acquired -- even the government encouraged it. However, Korean politicians, civic groups and industry leaders outwardly opposed Hynix's acquisition by a foreign company; they wanted to figure out a way to keep Hynix Korean. From what I remember, a few months ago Hynix went through a restructuring/recapitalization and got some debt relief, but its financial prospects haven't improved.
Hynix's survival is very, very strange given its circumstances, except when you realize that its survival is only due to tremendous political pressure to keep the company alive for a Korean acquirer. Otherwise, I think that financial analysts have uniformly agreed that Hynix needs to get acquired by somebody.
For better or for worse, Micron had a strong argument. Hynix should probably not be independent right now, and is only so because of the direct (and indirect) help of the Korean government. Also, the overall effect has been really bad: Hynix's non-creditor shareholders have been screwed repeatedly in the bailouts (convertible debt is great for creditors, horrible for current shareholders); Korean government-owned banks have arguably wasted insane amounts of money by riskily throwing it Hynix; and now, prices for DRAM will artificially go up because of the tariffs.
only when a monopoly acts illegally by using its existing monopoly to attempt to gain another monopoly in an unrelated market that there is a problem.
But this isn't accurate, either. You're right that monopolies are legal in the U.S. -- natural monopolies, that is. But any time a company tries to acquire a monopoly or maintain a natural monopoly using unreasonable methods, the company is in trouble with the Sherman Act and the Clayton Act. Thus, even if a company attained a natural monopoly legally and didn't try to enter new markets (and attempt to leverage its existing monopoly to attain one in the new market, like you suggest), they will still be liable under Sherman/Clayton if they do things like erect artificial barriers to entry or kill or suppress in various ways new entrants to their market.
Well, I know that lawyers use this word all the time, although to be honest the only context in which I hear it regularly is in a legal context. But look it up on dictionary.com.
Hm, maybe you needed pocketpc 2002?
Also I love the today screen. I have several plug ins and it shows me everything I need to know on one page.
Aren't there plugins that allow you to do that on the ipaq? I actually don't know for sure, but I've seen it on others' screens.
I can pick my palm out of the cradle at any time and know that it's synced with my Outlook. On ipaqs I'd have to hit the button on a regular basis.
My ipaq 1910 picks up the changes immediately after I make them in outlook, no intervention.
You severely mischaracterize inhouse attorneys when it comes to litigation. Inhouse counsel, at least in my experience, rarely gives more than superficial advice about litigation -- 1) 90% of them don't have litigation experience, but rather corporate law experience, and so barely know more about what goes on in a court room than the average "Law and Order" viewer, and 2) if the situation called for more analysis about whether the company should sue, inhouse counsel will invariably turn to outside counsel for advice, anyway. The purpose of inhouse counsel is to help negotiate deals and provide a first person that the business people can call for advice before going to outside law firms. Obviously, after a certain point, it's cheaper to have inhouse counsel to answer the easy questions (and provide direction or options for the hard questions) than to go to outside counsel every time. Litigation is *always* a hard question, requiring someone with good experience. Some rich companies will have litigation inhouse counsel -- for example, I think Google does -- but I can guarantee you that even they will invariably end up retaining outside counsel, if they decide it's worth it to litigate.
:)
And that's the thing: inhouse counsel is *loath* to recommend lawsuits, frivolous or meritorious, because it's extremely expensive to retain outside counsel. Yet it's absolutely necessary to have outside counsel because inhouse counsel never has the resources to litigate on behalf of the company. Therein lies the problem: the expense. (If things worked the way you think, there would be a lot more lawsuits *started* by companies -- but in reality the vast majority of suits are initiated by regular people, sometimes against companies but usually against other individuals.) And who do you think has the last word on expense? The business people, of course.
Also, I hope it's obvious that inhouse counsel doesn't get anything more whether they litigate or not -- companies hire inhouse counsel to SAVE money, and they do this by keeping the inhouse on salary instead of paying by the hour. Also, having to retain outside counsel makes inhouse counsel look ineffectual, even if for all practical purposes it's impossible to do the equivalent work inhouse. No person likes to look ineffectual.
My main point, really, is that inhouse counsel has no incentive to encourage frivolous litigation.
As for lawyers being assholes, my experience is that litigators tend to have a much higher percentage of assholes than corporate lawyers. This makes sense, because litigation tend to attract people with bigger egos -- those kind of people can't stand being in the background of deals, like corporate lawyers usually are. It also explains why the general public thinks so poorly of lawyers -- litigators are always in the spotlight (doing a TV show that realistically portrays corporate law would be the most boring show ever created), and half the time litigators are always on the "wrong" side.
Of course both sides incurred legal fees. Rarely do lawyers do contingency work; plaintiff-side lawyers who work on class actions or are suing corporations in products liability cases are really the only ones who might work on contingency.
It doesn't matter if there was no trial. The motions involved are pre-trial motions -- Google motioned to dismiss, and SearchKing asked for a preliminary injunction. Judge Miles-LaGrange granted the motion to dismiss, and (obviously) denied the motion for a PI. A PI is a temporary order by the court to prevent the defendant from doing whatever it is that the plaintiff is suing about because it will cause immediate hardship (it's more complicated than that, but essentially that's the point).
SearchKing isn't obligated to pay Google. The are a very few, specific circumstances in which a loser in an American court must pay the winner, and this situation isn't one of them. The other possibility would have been pursuant to a settlement agreement, but that's negotiated and thus different in every case.
Just wanted to say: excellent post. I might not agree with everything you say (though I do agree with a lot of it), it's very well-thought out and insightful. Slashdotters would do well to read it and actually learn about the "other" side of reality, rather than rant on about things about which they only have cursory or secondhand knowledge.
Reminds me of that movie The 13th Floor with Gretchen Mol.
told us that the legal and medical professions still use WP5.1 religiously both because everyone's so used to it and because everything in the program since that version just slows them down. Remember, these people are the ones typing the volumes and volumes of legal and medical documents out there.
At least at big law firms, no one uses WP5.1 anymore -- everyone uses Word. Still, many firms only recently (within the past 5 years or so) transitioned from it.