Be careful.... That position also justifies jury nullification when a jury refuses to convict a white man for lynching a black man. (Because it thought it was its civic duty.) Like most of us, I suspect that you only want a jury to nullify when it agrees with you.
If the legal damages can only encompass the actual economic harm, then what do you do when somebody copies something that's not for sale, like your college thesis or a cherished painting by your father which has never been copied?
Well, it actually has some gotchas. First of all, it takes the copyright office MONTHS to do the registration. And, there is currently a disagreement about whether the registration needs to be effective, or just filed. The problem is that the copyright office can reject a registration for appropriate reasons, so just filing isn't technically sufficient.
When you register, you have to deposit a copy of the work with the copyright office. Here, again, people can run into trouble -- what if the original author don't have a copy of the work?
Well... You are quite right that you do not need to register a work in order to have a copyright on it (at least in the U.S.). But, you can't sue somebody for infringement unless you've registered the original work. You can register after the infringement and then sue, but you still have to register.
That's a good point, but consider this possibility: they find out what broke on this firmware, issue a patch, and then the NEXT BD+ disk breaks the patched firmware, or some other firmware that happened to work on the first disk.
As I understand BD+, it effectively downloads a byte-compiled program onto your machine which decrypts the disk before passing it to the decoder. In theory, it means that each disk could have its own encryption scheme. (Simple example: Disk A XOR's against 0x0001; Disc B XOR's against 0x0002, etc.....) So, the fact that the firmware works on one disk does not mean that it will work on another.
In reality, although each disc *could* have its own encryption scheme, they won't come out with a new scheme for each movie -- that's just too time consuming and expensive. Instead, they'll have 4-5 key-based stock schemes that they'll use. So, instead of cracking one encryption scheme (which has already happened), cracking a BD+ disk will just be a matter of figuring out which scheme was used and then using the appropriate crack for that scheme. It's harder, but far from impossible to crack.
Sorry to be so blunt, but you're wrong. There is a disjunctive clause there: "No action may be brought under this title [i.e. 17 U.S.C. ] alleging infringement of copyright based on [manufacture] or [noncommercial use by a consumer]"
I would point you to http://www.law.harvard.edu/faculty/tfisher/music/AHRAhistory.html:
A Senate report emphasizes the consumer rights aspect of the law, by stating that the purpose of the statute is to protect the right of consumers to make recordings of copyrighted music for private, noncommercial use. See 102 S. Rpt. 294. A House report speaks of the need to "remove[] the legal cloud over home copying of prerecorded music in the most proconsumer way possible." 138 CONG. REC. H9029 (daily ed. September 22, 1992).
I don't have a copy of the Senate Report at my fingertips, but I've read it, and it does, indeed, say that.
No action may be brought under this title alleging infringement of copyright . . . based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings
It's actually strangely worded -- it doesn't say that "it shall not be an infringement of copyright...." instead, it says "no action may be brought..." In other words, it's still copyright infringement; the copyright owner just can't sue for it.
It's frustrating that Sony is pushing back on this, considering that they were one of the parties pushing for the AHRA initially anyway. Of course, that was a time when the recording industry was worried that people would copy their CDs onto DAT, and they wanted a royalty stream from the DAT medium. (This is why CD-R "Audio" discs cost more than normal CD-R disks -- much of the difference goes to the recording indusry.) Now, however, very few people actually buy recording mediums like audio CDs or DAT -- they just buy computers.
Re:What is good for GM is good for America
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Sorry --
I wasn't clear. I wasn't suggesting that there shouldn't be a city there. I was suggesting that if it makes economic sense to have a city there, then you don't need the federal government to step in. The property owners will either fix up their property themselves, or sell to somebody else who will. You mention hundreds of billion dollars worth of buildings, homes, etc.... If they are worth that much, then surely their owners will be willing to clean them up and renovate them without the help of the federal government.
Incidentally, if I recall correctly, the US government does not have a national oil company. The people "having their way" with the coastline were largely companies headquartered in New Orleans. The people of Louisiana made a lot of money off the off-shore oil business -- many are employed by the oil companies and many of those that aren't provide services to the oil companies and/or their employees.
Re:What is good for GM is good for America
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I think you're abstracting too far. It's possible to say that the Federal Government should not rebuild New Orleans while saying that it should still invest in other infrastructure.
First of all, there's big difference between disaster relief and disaster recovery. Relief is bringing in food, water, medicine and so on. Recovery goes well beyond that, to rebuilding of homes and businesses. It is thoroughly consistent to say that the federal government should help with the first, but not with the second.
The big problem with New Orleans is that it's not a particularly good place to build a city. If the Federal Government comes along and spends a bunch of money rebuilding it, then those people living there will (a) not buy enough insurance to cover themselves (why, if the Federal Government will bail them out?) and (b) won't decide to live in a less-risky place in circumstances where they probably should. It's what economists call a moral hazard -- an incentive for people to take risks that they should not take because somebody else bears the cost.
Pfft. I don't know why you think, for example, that France is more civilized than the UK or Louisiana than Mississippi. I suppose you're entitled to your opinion, but you're not doing yourself any favors by being derogatory toward "Anglo-Saxons."
In the US, most situations are also formally codified -- in those cases, the judge just applies the statute to the case at hand. The only question is what you do when you hit a new situation which isn't formally codified. I have a tough time believing that any country has a civil code in which the solution for all possible disputes is set out in black and white. There have to be in-between areas where the rules do not precisely spell out the answer. And, then the question is: what happens to the second person who hits that gray area? Is he allowed to say "Look. I did exactly the same thing John did, and you said he didn't do anything wrong, so you shouldn't find that I did anything wrong either"?
Well, that the Creative Commons licenses have been drafted by lawyers and the organization's board includess a number of lawyers (mainly law professors). There is a method for selecting which license you want, but I see that more akin to a table of contents in a book than to drafting a license.
I agree with you that the Staples analogy may be wrong -- maybe the publisher of that book is the better analogy.
Unfortunately, the line between activities that constitute practicing law and those that don't is not altogether clear, especially on the web. Part if it just comes down to which analogy is more convincing.
I'm trying to think of any scenario where Creative Commons is at fault, and I think you've alluded to the only possible claim -- that Creative Commons was providing legal assistance to the photographer and either (a) committed malpractice in doing so, or (b) was not licensed to do so (or both).
That, however, is a stretch and a long one at that -- by publishing a set of standard licenses, CC is not practicing law any more than Staples practices law by selling pre-printed legal forms. As you've pointed out, it hasn't met with a client, and isn't even aware that it has a client. But, even more, the license itself does what it purports to do: grant a copyright license. In fact, it says "LICENSOR OFFERS THE WORK AS-IS AND ONLY TO THE EXTENT OF ANY RIGHTS HELD IN THE LICENSED WORK BY THE LICENSOR." The photographer did not have publicity rights and, thus, could not grant them.
Even if the claim is malpractice, the photographer wasn't harmed by anything that CC did or didn't do. Suing Virgin makes sense; suing creative commons? That's just bizarre.
There's a significant distinction, though. Not only is open source software available under a different license, it's also easy to get -- you don't have to go through purchasing to get open-source software; you just download it. As a result, companies sometimes find themselves using, and sometimes selling, open source software when they didn't intend to. It just gets added in by some engineer who doesn't think much of it. That's a lot harder to do that when the software has to be approved by some manager.
A significant part of my law practice is advising clients about what they need to do to comply with a bunch of open source code that has, somehow, made its way into their software. On occasion, I have had clients using open source and proprietary software where the licenses conflicted -- one license says that they have to disclose the source code, and the other one said that they cannot. Those cases are always a lot less painful to deal with up front.
Black's defines license as "1. a revocable permission to commit some act that would otherwise be unlawful . . . 2. The certificate or document evidencing such permission."
An EULA is an agreement which grants a (definition 1) license. That makes the EULA a (definition 2) license.
The position of most software publishers will be that Section 117 does not apply, since you are not the "owner of a copy of a computer program," but merely a licensee. I don't think they would care much about calling you the owner of a copy for purposes of section 117, but might for purposes of section 109, where the First Sale doctrine is encoded. That, however, is a squirmy bit of law.
(1) It is possible to 'build' on somebody else's content. See Campbell v. Acuff-Rose, involving a parody of Roy Orbison's Pretty Woman. Your example is probably not a parody, and I'm not even sure you can play the result for yourself -- it's an unauthorized derivative work.
(2) EULAs are not automatically unenforceable, but are still subject to principles of contract law. In recent months, portions of two different EULAs have been struck down. Check out this Wired Article.
There is certainly fair use in redistribution. For example, the McDonald's logo is protected by both Copyright and Trademark. Yet, if somebody makes a movie that happens to contain the McDonald's logo, that person does not have to get permission. (Do you really believe that the producers of "Supersize Me" got permission??) Documentary creators generally clear rights because their insurance carriers require it, or because they're worried that even a non-meritorious suit would be expensive, not because the are legally obligated to. The Center for the study of the public domain publishes a Comic Book (?!) about this (see page 13 of that book.)
I agree with you up to your last two paragraphs: You can't just say "they acted suspiciously," (by definition, that's not a "reasonable suspicion") but you do not actually need to see the crime -- you can infer it from other facts. See, e.g., Birdsong v. Wal-Mart Stores, 74 S.W.3d 754, where Walmart detained a person after the security buzzer went off, but they never saw the person hide anything. The only question was whether they held her for too long under the circumstances, not whether they were allowed to at all.
Lexis has a ton more examples; this just happened to be the first one that came up.
This isn't a citizen's arrest. We're talking about the shopkeeper's privilege, which is a somewhat different thing. The exact terminology and standard ("Reasonable grounds," "reasonable suspicion," "probable cause") varies by state. See, e.g., NY CLS Gen Bus 218 (2007)(using "reasonable grounds"), La. C.Cr.P. Art. 215 (2007) (using "reasonable cause").
Not quite.... The standard is usually "reasonable suspicion." You don't have to know for certain; you just have to have a good enough reason to think that they did.
You're confusing the items on an attorney's bill with accounting terminology. Except for contingency fee scenarios, attorneys are generally paid on a "time + expense" basis. The time part (the fee) is whatever the attorney's hourly rate is (x the number of hours), and the expenses are for the things I mentioned.
You would be amazed at how piddly little things can add up on a big case like this -- the discovery costs are probably the largest part of the $8M.
In most states (probably in all of them), there's a "shopkeeper's right," where a shopkeeper has the right to detain a person for a limited time if the shopkeeper has a reasonable suspicion that the person was shoplifting. The shopkeeper can hold that person long enough to determine whether or not he was shoplifting and (if he was) turn him over to the police.
The only question here is whether not showing your receipt is enough. I would think that you'd need something more -- "I thought I saw him put something in his coat. Then, when he refused to show his receipt and rushed out of the store, I had a reasonable suspicion that he had."
Hmm... I would have thought a tech-savvy crowd would understand the relationship of expenses to total cost. When you write a new software application, your expenses are things like compiler licenses, printer paper, etc.... The true cost of development is in paying your software developers. The same is true of attorneys. In this case, the $8m does not include any portion of any attorney's pay. It does include court costs, stenographers (for depositions), photocopying, etc..., which are a tiny portion of what would have been charged if the case had been billed on an hourly basis.
There's a story about the settlement at law.com that gives some more details:
Conlin justified the request for $75 million by saying 150 lawyers, clerks and legal assistants worked 117,000 hours on the case. The law firms advanced $7.8 million with no guarantee of repayment, she said. In addition to those expenses, she said the payment includes $67.2 million in fees.
The case generated 25 million pages of documents, 286 discovery requests and three trips to the Iowa Supreme Court, Conlin said.
Well, under 103(a), there's the idea of separate protection (or non-protection) for a "part" of a work. If you create an unauthorized derivative work, then your unauthorized work is not protected. If you create a larger work that is derivative from an earlier work, then the part of your work that uses the earlier work is not protected. An easy example would be an issue of Reader's Digest, where the magazine did not have permission to include one of the abridged articles. Under 103(a), Readers Digest would not have a copyright in the abridged article and, in fact, the original author could then publish that abridged version.
I don't know that the music industry would agree with you that backup copies or mix CDs are non-infringing. As Jack Valenti famously said, "If you want a backup, buy another copy."
I think we're just going to disagree here. Should note, though, that a main difference in Mirage v. producing a print is that a print is a copy -- in Mirage, the defendant pasted the original to a tile.
I think we largely disagree on what Viacom did with it -- if they just showed it, adding little, for its own intrinsic entertainment value, I think you'd agree that it's not commentary or news reporting. If they did do those things, though, then the use changes dramatically. Since the clip was pulled down, however, I have no way of knowing.
Also, I'm not sure what "FFT" means -- are you referring back to Mirage?
First of all, my point is that a "new version" is defined so broadly in Mirage that it includes what Viacom did here. look at the facts of Mirage:
Artist paints a picture; authorizes its inclusion in a book; Art gallery cuts picture out of book, mounts it on a tile, does not modify picture IN ANY WAY; Court decides picture-on-tile is a new version.
Compare with the facts here:
Videographer creates a video; authorizes its inclusion on video-sharing site; Viacom pulls video off of website, ads some lead-in and lead-out, does not modify video IN ANY WAY; Court decides . . . ?
It's the same thing.
WRT your comment on my Factor 1 analysis -- all of fair use presupposes an infringing use. If there's no infringement to begin with, then you don't bother asking if it's a fair use. And, clearly, without fair use, Viacom would have been infringing 17 USC 106(4), even if you don't buy my 106(2) analysis.
WRT your 3 additional fair use factors, note that 5&6 merge into Factor 1. And, it doesn't sound like there was much discussion or commentary -- it was approximate "Dude. look what we found on the internet," Your Factor 7 merges into Factor 3 -- you are, of course, right that Factor 3 plays more into longer works, but it still plays into shorter works. For example, pulling 10 seconds of a 30 second spot is still more likely to be fair use than pulling the entire 30 second spot, but the other factors play a larger role.
Don't confuse fair use with derivative works -- they're not mutually exclusive. For example, I could take a work, insert my own commentary and produce a derivative work which is also a fair use.
A derivative work does not necessarily need to be a new version of the work. Consider Mirage Editions v. Albuquerque A.R.T. Co. -- the defendant took pieces of the plaintiff's art, pasted them to ceramic tiles, and sold them, creating a Derivative Work! This is very similar to what Viacom did here, only Viacom pasted the work into a somewhat broader video.
By saying "I just answer that question in the negative," I mean that I don't think Viacom's use was fair. Consider:
Factor 1: the use was commercial, for entertainment purposes, and not particularly transformative. Factor 2: the copyrighted work was a creative video, at the core of copyright protection Factor 3: the entire work was used Factor 4: little to no effect on the market.
Factors 1-3 say no fair use.
If we assume that the Viacom video was an infringing unauthorized derivative work, then the portion of the video that included the work is not protected by copyright (under 103(a)), and the poster could do whatever the heck he wanted to with it.
It's pretty clearly either a compilation or a derivative work (probably a mixture of both), both of which are covered by 103(a). Those are the only ways to add creative expression to an existing work.
In your news story, yes, a news clip is a derivative work of the video displayed, or at least a compilation of that video with other works. The difference is that since the station's use of the clip was probably fair, the station doesn't lose its copyright under 103(a).
I agree that Viacom's use is a fair use question -- I just answer that question in the negative.
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Be careful.... That position also justifies jury nullification when a jury refuses to convict a white man for lynching a black man. (Because it thought it was its civic duty.) Like most of us, I suspect that you only want a jury to nullify when it agrees with you.
If the legal damages can only encompass the actual economic harm, then what do you do when somebody copies something that's not for sale, like your college thesis or a cherished painting by your father which has never been copied?
Well, it actually has some gotchas. First of all, it takes the copyright office MONTHS to do the registration. And, there is currently a disagreement about whether the registration needs to be effective, or just filed. The problem is that the copyright office can reject a registration for appropriate reasons, so just filing isn't technically sufficient.
When you register, you have to deposit a copy of the work with the copyright office. Here, again, people can run into trouble -- what if the original author don't have a copy of the work?
Well... You are quite right that you do not need to register a work in order to have a copyright on it (at least in the U.S.). But, you can't sue somebody for infringement unless you've registered the original work. You can register after the infringement and then sue, but you still have to register.
That's a good point, but consider this possibility: they find out what broke on this firmware, issue a patch, and then the NEXT BD+ disk breaks the patched firmware, or some other firmware that happened to work on the first disk.
As I understand BD+, it effectively downloads a byte-compiled program onto your machine which decrypts the disk before passing it to the decoder. In theory, it means that each disk could have its own encryption scheme. (Simple example: Disk A XOR's against 0x0001; Disc B XOR's against 0x0002, etc.....) So, the fact that the firmware works on one disk does not mean that it will work on another.
In reality, although each disc *could* have its own encryption scheme, they won't come out with a new scheme for each movie -- that's just too time consuming and expensive. Instead, they'll have 4-5 key-based stock schemes that they'll use. So, instead of cracking one encryption scheme (which has already happened), cracking a BD+ disk will just be a matter of figuring out which scheme was used and then using the appropriate crack for that scheme. It's harder, but far from impossible to crack.
It's actually strangely worded -- it doesn't say that "it shall not be an infringement of copyright...." instead, it says "no action may be brought..." In other words, it's still copyright infringement; the copyright owner just can't sue for it.
It's frustrating that Sony is pushing back on this, considering that they were one of the parties pushing for the AHRA initially anyway. Of course, that was a time when the recording industry was worried that people would copy their CDs onto DAT, and they wanted a royalty stream from the DAT medium. (This is why CD-R "Audio" discs cost more than normal CD-R disks -- much of the difference goes to the recording indusry.) Now, however, very few people actually buy recording mediums like audio CDs or DAT -- they just buy computers.
Sorry --
I wasn't clear. I wasn't suggesting that there shouldn't be a city there. I was suggesting that if it makes economic sense to have a city there, then you don't need the federal government to step in. The property owners will either fix up their property themselves, or sell to somebody else who will. You mention hundreds of billion dollars worth of buildings, homes, etc.... If they are worth that much, then surely their owners will be willing to clean them up and renovate them without the help of the federal government.
Incidentally, if I recall correctly, the US government does not have a national oil company. The people "having their way" with the coastline were largely companies headquartered in New Orleans. The people of Louisiana made a lot of money off the off-shore oil business -- many are employed by the oil companies and many of those that aren't provide services to the oil companies and/or their employees.
I think you're abstracting too far. It's possible to say that the Federal Government should not rebuild New Orleans while saying that it should still invest in other infrastructure.
First of all, there's big difference between disaster relief and disaster recovery. Relief is bringing in food, water, medicine and so on. Recovery goes well beyond that, to rebuilding of homes and businesses. It is thoroughly consistent to say that the federal government should help with the first, but not with the second.
The big problem with New Orleans is that it's not a particularly good place to build a city. If the Federal Government comes along and spends a bunch of money rebuilding it, then those people living there will (a) not buy enough insurance to cover themselves (why, if the Federal Government will bail them out?) and (b) won't decide to live in a less-risky place in circumstances where they probably should. It's what economists call a moral hazard -- an incentive for people to take risks that they should not take because somebody else bears the cost.
Despite rhetoric coming from politicians, the "majority of citizens" are not being left in the dust. Since 1977, after adjusting for inflation, the median wage is up about 40%. See http://www.usnews.com/blogs/capital-commerce/2007/9/24/why-americans-really-are-getting-richer.html
Pfft. I don't know why you think, for example, that France is more civilized than the UK or Louisiana than Mississippi. I suppose you're entitled to your opinion, but you're not doing yourself any favors by being derogatory toward "Anglo-Saxons."
In the US, most situations are also formally codified -- in those cases, the judge just applies the statute to the case at hand. The only question is what you do when you hit a new situation which isn't formally codified. I have a tough time believing that any country has a civil code in which the solution for all possible disputes is set out in black and white. There have to be in-between areas where the rules do not precisely spell out the answer. And, then the question is: what happens to the second person who hits that gray area? Is he allowed to say "Look. I did exactly the same thing John did, and you said he didn't do anything wrong, so you shouldn't find that I did anything wrong either"?
Well, that the Creative Commons licenses have been drafted by lawyers and the organization's board includess a number of lawyers (mainly law professors). There is a method for selecting which license you want, but I see that more akin to a table of contents in a book than to drafting a license.
I agree with you that the Staples analogy may be wrong -- maybe the publisher of that book is the better analogy.
Unfortunately, the line between activities that constitute practicing law and those that don't is not altogether clear, especially on the web. Part if it just comes down to which analogy is more convincing.
I'm trying to think of any scenario where Creative Commons is at fault, and I think you've alluded to the only possible claim -- that Creative Commons was providing legal assistance to the photographer and either (a) committed malpractice in doing so, or (b) was not licensed to do so (or both).
That, however, is a stretch and a long one at that -- by publishing a set of standard licenses, CC is not practicing law any more than Staples practices law by selling pre-printed legal forms. As you've pointed out, it hasn't met with a client, and isn't even aware that it has a client. But, even more, the license itself does what it purports to do: grant a copyright license. In fact, it says "LICENSOR OFFERS THE WORK AS-IS AND ONLY TO THE EXTENT OF ANY RIGHTS HELD IN THE LICENSED WORK BY THE LICENSOR." The photographer did not have publicity rights and, thus, could not grant them.
Even if the claim is malpractice, the photographer wasn't harmed by anything that CC did or didn't do. Suing Virgin makes sense; suing creative commons? That's just bizarre.
There's a significant distinction, though. Not only is open source software available under a different license, it's also easy to get -- you don't have to go through purchasing to get open-source software; you just download it. As a result, companies sometimes find themselves using, and sometimes selling, open source software when they didn't intend to. It just gets added in by some engineer who doesn't think much of it. That's a lot harder to do that when the software has to be approved by some manager.
A significant part of my law practice is advising clients about what they need to do to comply with a bunch of open source code that has, somehow, made its way into their software. On occasion, I have had clients using open source and proprietary software where the licenses conflicted -- one license says that they have to disclose the source code, and the other one said that they cannot. Those cases are always a lot less painful to deal with up front.
Black's defines license as "1. a revocable permission to commit some act that would otherwise be unlawful . . . 2. The certificate or document evidencing such permission."
An EULA is an agreement which grants a (definition 1) license. That makes the EULA a (definition 2) license.
The position of most software publishers will be that Section 117 does not apply, since you are not the "owner of a copy of a computer program," but merely a licensee. I don't think they would care much about calling you the owner of a copy for purposes of section 117, but might for purposes of section 109, where the First Sale doctrine is encoded. That, however, is a squirmy bit of law.
(1) It is possible to 'build' on somebody else's content. See Campbell v. Acuff-Rose, involving a parody of Roy Orbison's Pretty Woman. Your example is probably not a parody, and I'm not even sure you can play the result for yourself -- it's an unauthorized derivative work.
(2) EULAs are not automatically unenforceable, but are still subject to principles of contract law. In recent months, portions of two different EULAs have been struck down. Check out this Wired Article.
There is certainly fair use in redistribution. For example, the McDonald's logo is protected by both Copyright and Trademark. Yet, if somebody makes a movie that happens to contain the McDonald's logo, that person does not have to get permission. (Do you really believe that the producers of "Supersize Me" got permission??) Documentary creators generally clear rights because their insurance carriers require it, or because they're worried that even a non-meritorious suit would be expensive, not because the are legally obligated to. The Center for the study of the public domain publishes a Comic Book (?!) about this (see page 13 of that book.)
I agree with you up to your last two paragraphs: You can't just say "they acted suspiciously," (by definition, that's not a "reasonable suspicion") but you do not actually need to see the crime -- you can infer it from other facts. See, e.g., Birdsong v. Wal-Mart Stores, 74 S.W.3d 754, where Walmart detained a person after the security buzzer went off, but they never saw the person hide anything. The only question was whether they held her for too long under the circumstances, not whether they were allowed to at all.
Lexis has a ton more examples; this just happened to be the first one that came up.
This isn't a citizen's arrest. We're talking about the shopkeeper's privilege, which is a somewhat different thing. The exact terminology and standard ("Reasonable grounds," "reasonable suspicion," "probable cause") varies by state. See, e.g., NY CLS Gen Bus 218 (2007)(using "reasonable grounds"), La. C.Cr.P. Art. 215 (2007) (using "reasonable cause").
Not quite.... The standard is usually "reasonable suspicion." You don't have to know for certain; you just have to have a good enough reason to think that they did.
You're confusing the items on an attorney's bill with accounting terminology. Except for contingency fee scenarios, attorneys are generally paid on a "time + expense" basis. The time part (the fee) is whatever the attorney's hourly rate is (x the number of hours), and the expenses are for the things I mentioned.
You would be amazed at how piddly little things can add up on a big case like this -- the discovery costs are probably the largest part of the $8M.
In most states (probably in all of them), there's a "shopkeeper's right," where a shopkeeper has the right to detain a person for a limited time if the shopkeeper has a reasonable suspicion that the person was shoplifting. The shopkeeper can hold that person long enough to determine whether or not he was shoplifting and (if he was) turn him over to the police.
The only question here is whether not showing your receipt is enough. I would think that you'd need something more -- "I thought I saw him put something in his coat. Then, when he refused to show his receipt and rushed out of the store, I had a reasonable suspicion that he had."
Hmm... I would have thought a tech-savvy crowd would understand the relationship of expenses to total cost. When you write a new software application, your expenses are things like compiler licenses, printer paper, etc.... The true cost of development is in paying your software developers. The same is true of attorneys. In this case, the $8m does not include any portion of any attorney's pay. It does include court costs, stenographers (for depositions), photocopying, etc..., which are a tiny portion of what would have been charged if the case had been billed on an hourly basis.
There's a story about the settlement at law.com that gives some more details:
Conlin justified the request for $75 million by saying 150 lawyers, clerks and legal assistants worked 117,000 hours on the case. The law firms advanced $7.8 million with no guarantee of repayment, she said. In addition to those expenses, she said the payment includes $67.2 million in fees. The case generated 25 million pages of documents, 286 discovery requests and three trips to the Iowa Supreme Court, Conlin said.Well, under 103(a), there's the idea of separate protection (or non-protection) for a "part" of a work. If you create an unauthorized derivative work, then your unauthorized work is not protected. If you create a larger work that is derivative from an earlier work, then the part of your work that uses the earlier work is not protected. An easy example would be an issue of Reader's Digest, where the magazine did not have permission to include one of the abridged articles. Under 103(a), Readers Digest would not have a copyright in the abridged article and, in fact, the original author could then publish that abridged version.
I don't know that the music industry would agree with you that backup copies or mix CDs are non-infringing. As Jack Valenti famously said, "If you want a backup, buy another copy."
I think we're just going to disagree here. Should note, though, that a main difference in Mirage v. producing a print is that a print is a copy -- in Mirage, the defendant pasted the original to a tile.
I think we largely disagree on what Viacom did with it -- if they just showed it, adding little, for its own intrinsic entertainment value, I think you'd agree that it's not commentary or news reporting. If they did do those things, though, then the use changes dramatically. Since the clip was pulled down, however, I have no way of knowing.
Also, I'm not sure what "FFT" means -- are you referring back to Mirage?
First of all, my point is that a "new version" is defined so broadly in Mirage that it includes what Viacom did here. look at the facts of Mirage:
Artist paints a picture; authorizes its inclusion in a book;
Art gallery cuts picture out of book, mounts it on a tile, does not modify picture IN ANY WAY;
Court decides picture-on-tile is a new version.
Compare with the facts here:
Videographer creates a video; authorizes its inclusion on video-sharing site;
Viacom pulls video off of website, ads some lead-in and lead-out, does not modify video IN ANY WAY;
Court decides . . . ?
It's the same thing.
WRT your comment on my Factor 1 analysis -- all of fair use presupposes an infringing use. If there's no infringement to begin with, then you don't bother asking if it's a fair use. And, clearly, without fair use, Viacom would have been infringing 17 USC 106(4), even if you don't buy my 106(2) analysis.
WRT your 3 additional fair use factors, note that 5&6 merge into Factor 1. And, it doesn't sound like there was much discussion or commentary -- it was approximate "Dude. look what we found on the internet," Your Factor 7 merges into Factor 3 -- you are, of course, right that Factor 3 plays more into longer works, but it still plays into shorter works. For example, pulling 10 seconds of a 30 second spot is still more likely to be fair use than pulling the entire 30 second spot, but the other factors play a larger role.
Don't confuse fair use with derivative works -- they're not mutually exclusive. For example, I could take a work, insert my own commentary and produce a derivative work which is also a fair use.
A derivative work does not necessarily need to be a new version of the work. Consider Mirage Editions v. Albuquerque A.R.T. Co. -- the defendant took pieces of the plaintiff's art, pasted them to ceramic tiles, and sold them, creating a Derivative Work! This is very similar to what Viacom did here, only Viacom pasted the work into a somewhat broader video.
By saying "I just answer that question in the negative," I mean that I don't think Viacom's use was fair. Consider:
Factor 1: the use was commercial, for entertainment purposes, and not particularly transformative.
Factor 2: the copyrighted work was a creative video, at the core of copyright protection
Factor 3: the entire work was used
Factor 4: little to no effect on the market.
Factors 1-3 say no fair use.
If we assume that the Viacom video was an infringing unauthorized derivative work, then the portion of the video that included the work is not protected by copyright (under 103(a)), and the poster could do whatever the heck he wanted to with it.
It's pretty clearly either a compilation or a derivative work (probably a mixture of both), both of which are covered by 103(a). Those are the only ways to add creative expression to an existing work.
In your news story, yes, a news clip is a derivative work of the video displayed, or at least a compilation of that video with other works. The difference is that since the station's use of the clip was probably fair, the station doesn't lose its copyright under 103(a).
I agree that Viacom's use is a fair use question -- I just answer that question in the negative.