The non-infringing account owner shouldn't be liable in that situation, but is the one who's likely to be named in the lawsuit. And that's not a fun position to be in, even if you can then convince the content owner that they have the wrong person.
The problem, though, is that it's not just one domain -- there's a multiplying effect. How many web properties does Disney have? Dozens, at least. And each of those have dozens of potential variants. Covering them all starts to cost a lot of money. And with ICANN opening up the gTLD namespace, that could end up being a LOT of money.
Does squatting on somebody else's domain even make economic sense any more? I don't see how somebody searching for the Disney website comes across disney.xxx unless that was what they really wanted.
If you really want to protect your trademark, you have to register an awful lot of TLDs just to cover one variation on a name.
That's really a silly approach to trying to protect your trademark -- even with the top-level domains currently out there, there are just too many variations. Why is disney.xxx a big deal when they haven't registered disneyxxx.com or disney-xxx.com?
If disney.xxx pops up, then Disney can file a UDRP complaint or a civil suit and get the domain taken down pretty quickly.
Fortunately the convention seems to be that whoever registers for a.com, first implicily has the rights to that name in other.TLDs.
That is certainly not true. Registering the.com does not give you rights to any others.
You're confusing a Civil Law regime with a Civil Suit. Precedent does indeed matter in civil matters. After all, Sony v. Universal (the betamax case) was a civil suit that made it all the way to the Supreme Court.
The thing that means that there's no precedent is that Spamhaus didn't defend the complaint -- e360 won by default.
e360 won on what most people would call a technicality -- Spamhaus never defended itself on the claim, so the court entered a default judgment against it. It was only when it came time to talk about damages that Spamhaus showed up in court. So, basically, the court HAD to say "You've been found (by default) to have done these things. Now, how much damage did you cause e360? Oh, none? Well, then you only have to pay 'nominal' damages. There were three claims, so that's $3."
I think you're overstating the problems the US manufacturing base has -- US Manufacturing output was at an all-time high immediately before the current recession, although it employs a lot fewer people than it once did.
If you're really worried about this, then you should be complaining most heavily about the US Deficit. After all, when Americans send Dollars to China, China turns around and re-invests those dollars in US Government bonds. Without the bonds, China would be far less interested in acquiring US Dollars.
Sure, places like Taiwan are better at manufacturing electronic components than the US is. The US is better at building airplanes than Taiwan is. So, we trade -- the US builds airplanes while Taiwan manufactures electronic components. As a result, we get less expensive electronics and less expensive airplanes. That's a good thing which makes everybody better off.
It doesn't matter. Whether a work is a "work made for hire" is a question of law. It either has to (1) be made in the scope of an employee's employment, or (2) be "Specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire
Your game example is likely a part of an "audiovisual work" so as long as all the contracts say it's a "work made for hire", it'll be a "work made for hire." Music (both the sounds recording and the underlying composition) are different matters -- I don't see how (2) could stand. (1) might, but it's unlikely -- rock stars are generally not employees of the studios.
The studios' best argument is that the works are "Joint Works" -- it may be the musicians playing, but it was the studios' recording engineers and other people who made it sound like it did on the recording. So, while the band might be able to take back its copyright assignment to the studio, the band would only end up being a joint owner with the studio. The net result would be that both the studio AND the band could sell the music. But, that gets more complicated when you realize that there's another copyright in the underlying notes and lyrics -- if the author of THOSE took his copyright back, then, perhaps, nobody would own enough rights to publish the CD.
Yes. In a nutshell, a long time ago, there was a string of court cases that said you couldn't hide "important terms" to a contract way down deep in the depths; you had to highlight them to the user by, for example, making them all-caps. That's why you often see sections waiving warranties and limiting liability in all-caps.
It's a bizarre rule, especially considering that making things all-caps actually makes them *harder* to read. Further, those terms are often things that people just don't care that much about.
The problem, though, is that trying to make your terms of service accessible to a layperson usually ends up making them a lot less precise. And that can lead to problems if they ever try to enforce them. That's especially true since there's a "rule of construction" which says, effectively, if there are two ways to read something you wrote, and you want it read one way, and your opponent in court wants it read the other way, then your opponent wins, since you had the chance to make the language not ambiguous.
Plus, in this case, there's a different problem -- what happens if Law Enforcement wants your information? See http://www.fulmerlawfirm.com/?p=258
For copyright cases, we pretty much have loser pays. See 17 U.S.C. 505: "In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs."
As a former Nortel engineer, I suspect they're all in the 47.X.X.X block, which are registered to Nortel subsidiary Bell Northern Research.
A market for IP addresses is a good thing. It will encourage all the folks out there who have more than they need to give some up (because they'd get cash).
Read the license. It says "derivative work under copyright law." There's a huge body of case law that discusses what a derivative work is.
In any case, it's a copyright license. Copyright gives the author the exclusive right to do certain things with the work. A license allows other people to do those things. Those things are (1) Copying the work, (2) preparing derivative works from the work, and a few other things that don't matter here (like, for example "performing") If you're not copying the GPL work and you're not preparing derivative works from the GPL work, then the GPL is irrelevant.
The problem is that "derivative work" has a meaning under copyright law -- the FSF doesn't get to say what it means. If dynamically linking to a generic GPL'd library creates a derivative work of that library, then dynamically linking to *any* library creates a derivative work of that library.
Let's look closer: what if the library wasn't dynamically linked, but was called via a remote procedure or remote method call? What if there's no RPC mechanism, but just a published packet format? What if it calls system() to run a GPL'd program? Is there any limit where software A exports an interface to software B, where B doesn't become a derivative work of A?
In general, a derivative work is any form in which the original work may be "recast, transformed, or adapted." The copyright act includes a bunch of examples -- things like translations, abridgements, musical arrangement, fictionalization, etc.... All of those involve changing some copyrightable portion of the original. In general, that doesn't happen when you just use an exported interface.
Note, though, that things like static linking create copies of the original library. And, creating copies outside the bounds of a license is a copyright infringement. Which brings us to the special cases.... It's possible to include code in a header file, through things like macros, inline functions and (like we all learned when starting to program in C) actually inserting functions in the header. If the compiled work actually uses those things, then it may actually contain a copy of them (in compiled form). So, if those things are subject to copyright, then the compiled work may be an infringement of the copyright in the header file. There are, however, several ways that they may not be copyrightable or actionable, such as the merger doctrine, scenes a faire, de minimus usage, and fair use.
Let's be careful here.... If using kernel interfaces is a copyright violation, then why doesn't using other interfaces also constitute a copyright violation?
Uh.... Different Nimmer. This is Ray Nimmer. The guy who wrote the treatise was Melville Nimmer (now deceased) and the treatise is maintained by his son, David Nimmer.
So... Poor choice of words on "could have gone out and . .." But, the point is the same.
He doesn't need to prove a negative; he only needed to show some evidence -- his LAWYER could have gone out and gotten other wardens to give affidavits that it didn't lead to gang behavior.
There is a presumption that the government knows the best way to run a prison. So, when an inmate wants to challenge some rule, he has to at least present some valid evidence that the rule doesn't make sense. He didn't in this case, so he lost.
The 7th circuit did *not* find that D&D encourages gang-like behavior. What it found is that this prisoner didn't provide any relevant evidence that it doesn't encourage gang-like behavior. Basically, the warden said "Hey, this sort of thing looks like something which could encourage gangs -- it mimics human interaction. So, we're banning it." The inmate could have gone out and found other wardens who said "No, we've had it in our prison, and it's been fine." But, he didn't. Instead, he found other inmates (or former inmates). And that's not good enough.
And, he's wrong on (1). Absent the current economic downturn, US manufacturing output is at an all-time high. But, just like automation has hugely decreased the number of people involved in agriculture (in the 1700's, it was about 95% of the population; today, it's about 2%), it's also hugely decreased the number of people involved in manufacturing. Sure, we reach full employment by forcing GM, Ford and Chrysler to hand-manufacture all their cars and by prohibiting the use of combines and tractors on farms. But, somehow, I don't think that would make us better off.
First of all, if you sell those 20 tickets, you now have 80 more that you can sell for pennies on the dollar at the last instant, increasing your profit. There's no scalper out there who plans to have a bunch of tickets left over just after the show starts -- that's like leaving money on the table.
Secondly, the venues we're talking about don't have just 100 seats -- they have tens of thousands, and there's no way that a scalper is going to corner the market on all those seats.
States without anti-scalping laws don't have the problems you describe.
I disagree.
Consider two situations: (A). AT&T starts up a search subsidiary and then says "We're going to impair connections to all other search providers in favor of our own," reaping a ton of profits. (B) AT&T spins-off that search subsidiary but enters into a contract with it where the subsidiary pays a bunch of $$$ for AT&T to impair connections to the other providers, reaping a ton of profits? The end result to AT&T, end-users and other search providers is identical; the only difference is that in (A) the flow of money from search to AT&T comes through ownership and in (B) it comes through contract.
Funny you should ask -- that's approximately the reasoning that the government used in the court case to try to say it was legal. Basically, they said "We're not funding the destruction, we're just funding all of the other activities that constitute research." The judge wasn't buying it -- the statute doesn't say "Federal money cannot be used to destroy embryos." It says (approximately) "Federal money cannot be used to fund research in which embryos are destroyed." And, under the relevant regulations, "research" was defined as the entire end-to-end process.
In case anybody thinks this was an out-of-control judge on a philosophical bent, I'll note that this was the second time he heard the case -- the first time, he dismissed it because he didn't think the people suing had standing to sue. It was only after they appealed and WON that he decided to grant the preliminary injunction.
I understand the holder has to defend their copyright in order for the copyright to remain valid,
Uh... No. Not true at all. You're confusing Copyright Law with Trademark Law.
YouTube is actually a very poor example for your point -- they have all sorts of ways to filter out copyrighted content -- they have a content matching system, users can flag materials, and they respond to DMCA takedown notices.
If you want to go after somebody, go after the people who are posting copyright material on YouTube. Why make YouTube responsible for what users do?
Slashdot Mirror
The non-infringing account owner shouldn't be liable in that situation, but is the one who's likely to be named in the lawsuit. And that's not a fun position to be in, even if you can then convince the content owner that they have the wrong person.
The problem, though, is that it's not just one domain -- there's a multiplying effect. How many web properties does Disney have? Dozens, at least. And each of those have dozens of potential variants. Covering them all starts to cost a lot of money. And with ICANN opening up the gTLD namespace, that could end up being a LOT of money.
Does squatting on somebody else's domain even make economic sense any more? I don't see how somebody searching for the Disney website comes across disney.xxx unless that was what they really wanted.
If you really want to protect your trademark, you have to register an awful lot of TLDs just to cover one variation on a name.
That's really a silly approach to trying to protect your trademark -- even with the top-level domains currently out there, there are just too many variations. Why is disney.xxx a big deal when they haven't registered disneyxxx.com or disney-xxx.com?
If disney.xxx pops up, then Disney can file a UDRP complaint or a civil suit and get the domain taken down pretty quickly.
Fortunately the convention seems to be that whoever registers for a .com, first implicily has the rights to that name in other .TLDs.
That is certainly not true. Registering the .com does not give you rights to any others.
You're confusing a Civil Law regime with a Civil Suit. Precedent does indeed matter in civil matters. After all, Sony v. Universal (the betamax case) was a civil suit that made it all the way to the Supreme Court. The thing that means that there's no precedent is that Spamhaus didn't defend the complaint -- e360 won by default.
e360 won on what most people would call a technicality -- Spamhaus never defended itself on the claim, so the court entered a default judgment against it. It was only when it came time to talk about damages that Spamhaus showed up in court. So, basically, the court HAD to say "You've been found (by default) to have done these things. Now, how much damage did you cause e360? Oh, none? Well, then you only have to pay 'nominal' damages. There were three claims, so that's $3."
Isn't there a fault line between Alaska and Russia?
I think you're overstating the problems the US manufacturing base has -- US Manufacturing output was at an all-time high immediately before the current recession, although it employs a lot fewer people than it once did. If you're really worried about this, then you should be complaining most heavily about the US Deficit. After all, when Americans send Dollars to China, China turns around and re-invests those dollars in US Government bonds. Without the bonds, China would be far less interested in acquiring US Dollars.
Sure, places like Taiwan are better at manufacturing electronic components than the US is. The US is better at building airplanes than Taiwan is. So, we trade -- the US builds airplanes while Taiwan manufactures electronic components. As a result, we get less expensive electronics and less expensive airplanes. That's a good thing which makes everybody better off.
It doesn't matter. Whether a work is a "work made for hire" is a question of law. It either has to (1) be made in the scope of an employee's employment, or (2) be "Specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire Your game example is likely a part of an "audiovisual work" so as long as all the contracts say it's a "work made for hire", it'll be a "work made for hire." Music (both the sounds recording and the underlying composition) are different matters -- I don't see how (2) could stand. (1) might, but it's unlikely -- rock stars are generally not employees of the studios. The studios' best argument is that the works are "Joint Works" -- it may be the musicians playing, but it was the studios' recording engineers and other people who made it sound like it did on the recording. So, while the band might be able to take back its copyright assignment to the studio, the band would only end up being a joint owner with the studio. The net result would be that both the studio AND the band could sell the music. But, that gets more complicated when you realize that there's another copyright in the underlying notes and lyrics -- if the author of THOSE took his copyright back, then, perhaps, nobody would own enough rights to publish the CD.
Yes. In a nutshell, a long time ago, there was a string of court cases that said you couldn't hide "important terms" to a contract way down deep in the depths; you had to highlight them to the user by, for example, making them all-caps. That's why you often see sections waiving warranties and limiting liability in all-caps. It's a bizarre rule, especially considering that making things all-caps actually makes them *harder* to read. Further, those terms are often things that people just don't care that much about.
The problem, though, is that trying to make your terms of service accessible to a layperson usually ends up making them a lot less precise. And that can lead to problems if they ever try to enforce them. That's especially true since there's a "rule of construction" which says, effectively, if there are two ways to read something you wrote, and you want it read one way, and your opponent in court wants it read the other way, then your opponent wins, since you had the chance to make the language not ambiguous. Plus, in this case, there's a different problem -- what happens if Law Enforcement wants your information? See http://www.fulmerlawfirm.com/?p=258
For copyright cases, we pretty much have loser pays. See 17 U.S.C. 505: "In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs."
As a former Nortel engineer, I suspect they're all in the 47.X.X.X block, which are registered to Nortel subsidiary Bell Northern Research. A market for IP addresses is a good thing. It will encourage all the folks out there who have more than they need to give some up (because they'd get cash).
Read the license. It says "derivative work under copyright law." There's a huge body of case law that discusses what a derivative work is. In any case, it's a copyright license. Copyright gives the author the exclusive right to do certain things with the work. A license allows other people to do those things. Those things are (1) Copying the work, (2) preparing derivative works from the work, and a few other things that don't matter here (like, for example "performing") If you're not copying the GPL work and you're not preparing derivative works from the GPL work, then the GPL is irrelevant.
The problem is that "derivative work" has a meaning under copyright law -- the FSF doesn't get to say what it means. If dynamically linking to a generic GPL'd library creates a derivative work of that library, then dynamically linking to *any* library creates a derivative work of that library. Let's look closer: what if the library wasn't dynamically linked, but was called via a remote procedure or remote method call? What if there's no RPC mechanism, but just a published packet format? What if it calls system() to run a GPL'd program? Is there any limit where software A exports an interface to software B, where B doesn't become a derivative work of A? In general, a derivative work is any form in which the original work may be "recast, transformed, or adapted." The copyright act includes a bunch of examples -- things like translations, abridgements, musical arrangement, fictionalization, etc.... All of those involve changing some copyrightable portion of the original. In general, that doesn't happen when you just use an exported interface. Note, though, that things like static linking create copies of the original library. And, creating copies outside the bounds of a license is a copyright infringement. Which brings us to the special cases.... It's possible to include code in a header file, through things like macros, inline functions and (like we all learned when starting to program in C) actually inserting functions in the header. If the compiled work actually uses those things, then it may actually contain a copy of them (in compiled form). So, if those things are subject to copyright, then the compiled work may be an infringement of the copyright in the header file. There are, however, several ways that they may not be copyrightable or actionable, such as the merger doctrine, scenes a faire, de minimus usage, and fair use.
Let's be careful here.... If using kernel interfaces is a copyright violation, then why doesn't using other interfaces also constitute a copyright violation?
Uh.... Different Nimmer. This is Ray Nimmer. The guy who wrote the treatise was Melville Nimmer (now deceased) and the treatise is maintained by his son, David Nimmer.
So... Poor choice of words on "could have gone out and . . ." But, the point is the same.
He doesn't need to prove a negative; he only needed to show some evidence -- his LAWYER could have gone out and gotten other wardens to give affidavits that it didn't lead to gang behavior.
There is a presumption that the government knows the best way to run a prison. So, when an inmate wants to challenge some rule, he has to at least present some valid evidence that the rule doesn't make sense. He didn't in this case, so he lost.
The 7th circuit did *not* find that D&D encourages gang-like behavior. What it found is that this prisoner didn't provide any relevant evidence that it doesn't encourage gang-like behavior. Basically, the warden said "Hey, this sort of thing looks like something which could encourage gangs -- it mimics human interaction. So, we're banning it." The inmate could have gone out and found other wardens who said "No, we've had it in our prison, and it's been fine." But, he didn't. Instead, he found other inmates (or former inmates). And that's not good enough.
And, he's wrong on (1). Absent the current economic downturn, US manufacturing output is at an all-time high. But, just like automation has hugely decreased the number of people involved in agriculture (in the 1700's, it was about 95% of the population; today, it's about 2%), it's also hugely decreased the number of people involved in manufacturing. Sure, we reach full employment by forcing GM, Ford and Chrysler to hand-manufacture all their cars and by prohibiting the use of combines and tractors on farms. But, somehow, I don't think that would make us better off.
No... They'd just drop the prices as it got closer to show time, like airlines and last-minute fares.
First of all, if you sell those 20 tickets, you now have 80 more that you can sell for pennies on the dollar at the last instant, increasing your profit. There's no scalper out there who plans to have a bunch of tickets left over just after the show starts -- that's like leaving money on the table. Secondly, the venues we're talking about don't have just 100 seats -- they have tens of thousands, and there's no way that a scalper is going to corner the market on all those seats. States without anti-scalping laws don't have the problems you describe.
I disagree. Consider two situations: (A). AT&T starts up a search subsidiary and then says "We're going to impair connections to all other search providers in favor of our own," reaping a ton of profits. (B) AT&T spins-off that search subsidiary but enters into a contract with it where the subsidiary pays a bunch of $$$ for AT&T to impair connections to the other providers, reaping a ton of profits? The end result to AT&T, end-users and other search providers is identical; the only difference is that in (A) the flow of money from search to AT&T comes through ownership and in (B) it comes through contract.
Funny you should ask -- that's approximately the reasoning that the government used in the court case to try to say it was legal. Basically, they said "We're not funding the destruction, we're just funding all of the other activities that constitute research." The judge wasn't buying it -- the statute doesn't say "Federal money cannot be used to destroy embryos." It says (approximately) "Federal money cannot be used to fund research in which embryos are destroyed." And, under the relevant regulations, "research" was defined as the entire end-to-end process. In case anybody thinks this was an out-of-control judge on a philosophical bent, I'll note that this was the second time he heard the case -- the first time, he dismissed it because he didn't think the people suing had standing to sue. It was only after they appealed and WON that he decided to grant the preliminary injunction.
I understand the holder has to defend their copyright in order for the copyright to remain valid,
Uh... No. Not true at all. You're confusing Copyright Law with Trademark Law.
YouTube is actually a very poor example for your point -- they have all sorts of ways to filter out copyrighted content -- they have a content matching system, users can flag materials, and they respond to DMCA takedown notices.
If you want to go after somebody, go after the people who are posting copyright material on YouTube. Why make YouTube responsible for what users do?