Let's see if I understand his logic right. Is he saying that using Tetris is ethical only if I use it to make LOCKJAW? So what about songs or movies? How would one make a free replacement for one of those?
Pretty easily. Software is not anything special, really. Like all creative works, there is an idea and an expression of that idea. Copyright only protects expressions, and never protects ideas. So the idea of tetris -- the rules -- are not protected by copyright. Only the implementation is. So long as you code your own program that follows the same rules, you're not infringing on any copyrights. (Patents are another issue)
Songs and movies have underlying ideas too. The trick is getting as much of the idea as you want without going too far and getting into the expression. It's considered to be a continuum, lest pirates take an entire work, tweak it only very slightly, and claim to have not infringed since there is that slight difference in the expression. The line is very fuzzy. But you could certainly make a movie about a 1930's archeologist adventurer who fights Nazis without infringing on the Indiana Jones copyrights. You would just need to be cautious.
How cheap do you think it is to make a movie like 'Pride and Prejudice?'
Pretty cheap, depending on how you do it. You can do Hamlet in an authentic Danish castle with period costumes and hundreds of extras, or on an empty stage with a minimum of actors (perhaps as few as one if he has some stamina and talent). Neither will necessarily be better or worse than the other. Spectacle is fine, but it's really not all that important in the grand scheme of things.
It's not that easy. Google cannot know 1) what works are copyrighted, 2) whether there has been an infringing act, and 3) whether that act is in fact infringing or whether there is some other factor that makes it non-infringing (e.g. an implied non-exclusive license). The courts certainly disagree all the time, as do learned commentators, legal scholars, and copyright lawyers. Not to mention that the laws vary worldwide. There are no bright line tests for humans to follow, much less which could be adapted for mere machines. And the facts are often completely outside of Google's ability to determine, because they are not contained within the work itself. And even facts which are contained within the work might be beyond the abilities of a machine (e.g. a copyright notice within a video, if it's just blurry pixels, might be recognizable to a human, but machines aren't that good at recognizing these things yet. God help you if it's an audio copyright notice, as might be appended to a radio broadcast; speech recognition is way beyond where it is supposed to be, to say nothing of flying cars and atomic-powered kill-bots.
It's still more reasonable for the burden to be on the copyright holder. He knows these things, and he can recognize his work, and he has a strong motivation to look so he can be trusted to do a thorough job. Plus, it's less paternalistic this way.
Well, having reviewed the earlier posts by that person, I think that he was saying both that under the current law, YouTube is infringing, and that if he was wrong on that, then the law should be changed so that YouTube would be infringing.
Personally, I think he's foolish. Particularly as there is no way for YouTube, or any other ISP of any kind whatsoever to actually know whether any given clip is legitimately being submitted or not. The Internet as a whole would come to a screeching halt -- or at least the US involvement in it would, while other countries kept going merrily along. Congress considered this issue back in the 90's and decided that the Internet was more important than protecting copyright holders. But, since they didn't want to entirely screw over the copyright holders (and since copyright holders wanted something better than unenforceable C&D's and the gigantic pain of getting an injunction from a court), they put into place a takedown system that is more responsive. One of the important and good features of it is that it puts the burden on the copyright holder to find infringements. This is good because 1) no one in the world is in a better position to know when something is infringing than the copyright holder. Google does not know who the copyright holder has licensed; the copyright holder does. 2) It allows for resources to be allocated to the works the copyright holder considers most important. Google does not know whether a movie studio is more concerned over an old silent movie clip with Russian dialog cards, or a huge blockbuster from a few years back. The studio does, and can allocate resources according to its own preferences. (Which in my hypothetical, since it's my hypothetical, is the silent movie, since it has contractual obligations which force its hand, but views the clips from the blockbuster as user-generated viral marketing that it is willing to leave there until it changes its mind)
Plus, of course, all Google can possibly ever do is trust the word of the people doing the uploading. What else is it going to do? Checksums are so defeatable that they'd be pointless. (Plus if they're simple, collisions become likely, but if they're complicated, the overhead becomes significant, given the scale at which they operate) Having human beings view each thing, then consult a database -- imprecisely, of course, since people could have differing opinions, e.g. is that a horizontal bungee cord, or a human slingshot -- would be an Internet-stopping 'solution.' Having humans sign off on each and every bit of content on the Internet would be worse than if you needed an operator to put every phone call through. There aren't that many humans able to do that work, and it's utterly stupid work.
The current method is flawed, sure, but it's better than anything the moron from before was suggesting. If he doesn't like the Internet so much, why the hell is he using it, that's what I want to know. Especially since we cannot trust his word that he is the copyright holder of his posts, and thus they shouldn't be appearing unless we laboriously verify that they're on the level.
Actually, that is untrue. The Berne Convention -- which is utter crap, btw, and should be gotten rid of and not replaced -- does not claim to make a copyright granted in country A enforceable in country B. Rather, it deals with the granting of copyrights; if a work is created in country A, and is copyrightable in country B, then country B must also grant a copyright on the work. It also deals with setting a minimum for what is copyrightable, and how long those copyrights last, etc.
So if you are a British author, then you likely have a US copyright, but it is only that copyright, and not your UK copyright, that can be enforced in the US.
Indeed, you cannot make a claim in the US founded on the Berne Convention; it is not a source of US copyright law. (See 17 USC 104(c) for this)
First, he'd have to skip from the manufacturer of the woodchipper to the owner of the woodchipper.
No, it doesn't matter. The manufacturer of a xerox machine either does or does not get sued on the same basis as the owner of the machine, where in both cases neither the manufacturer or the owner are the ones engaging in direct infringement. Depending on the facts, it's entirely possible for one, or both, or neither, to be indirectly infringing. But merely providing a means for infringement does not guarantee that they are infringing.
Then he'd have to hypothesize a wood chipper that had a million feed hoppers hidden in the dark. Specifically setup so that there is no way to tell who is putting what into the machine.
Still irrelevant. There's no duty to be aware. There can be constructive knowledge, but that's not the same thing.
And the owner of the wood chipper somehow made money off of intestines and brains spraying from the outlet.
Still irrelevant, if the safe harbor holds.
Youtube built a system that facilitates copyright infringment. They cannot identify who uploads a particular clip. They do not prevent reuploading of the exact same file that has been legally removed.
Yes, but that's all legal.
They are nothing like an ISP.
Wrong. Here is the relevant definition of an ISP from the law:
the term "service provider" means a provider of online services or network access, or the operator of facilities therefor, and includes [an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received].
Google provides YouTube, which is an online service. So as far as anyone cares, it is an ISP.
Well, the 'good' DMCA isn't that good, in that it still allows for copyright holders to issue takedowns left and right without carefully verifying them, and those takedowns can be quite broad (IIRC, there was at least one case where an ISP had to delete an entire usenet group from its newsserver), and there's no reason for them to act differently. Also, most of the safeharbor requires registration by the safeharbor claimant, which they might not have realized they should do, since it's not all that clear.
There are good parts to the idea of a safeharbor, but it could be improved quite a lot. Let's not forget that.
No, he's pretty well on target. Let's remember that prior to the enactment of the 512 safeharbor, there were suits brought by copyright holders against ISPs for copyright infringement committed by the ISPs because they were hosting web sites on which infringing material had been put by users. The ISPs won some and lost some, and the uncertainty of the whole thing prompted them to lobby for the safeharbor lest they have to quit being ISPs due to the legal risk involved.
But in the cases where the ISPs won, they generally won on the argument that they provided a means for users to do things, but that they didn't police those means. The common analogy was that of a photocopier which was made available for the public to use without supervision; the courts didn't feel that it would be right to hold the owner responsible there, and thus, not to hold an ISP responsible in the ordinary case. Probably the leading case is Religious Technology Center v. Netcom.
Why the hell are we even bothering with putting so much effort into spacesuits? The vast majority of our EVAs are in space right now, rather than on the moon or any other body. Since most of space is uninteresting, those EVAs tend to occur only a short distance outside of the spacecraft or station that the astronaut has just been aboard. This being the case, I suggest that rather than remove people from the relative safety and comfort of their craft, sticking them into restrictive, uncomfortable suits just to do EVAs, that we use teleoperated robots instead. The astronaut can sit inside the cabin, using the robot to do the EVA work. I would think that the best design would roughly imitate human physiognomy, or at least the parts you need to do EVAs: two arms, a torso connecting them, and a head. The arms can not only be stronger than human arms (mass is still an issue, even when there's no weight), but can themselves contain all the tools the astronaut needs, and can contain many smaller sub-arms and hands for more delicate work, or to hold items in place. The robot could incorporate maneuvering thrusters, avoiding the need for the MMU packs, and a third arm when it needs to grab onto something as a stable platform from which to work. The hands and arms would generally be controlled with a dataglove sort of apparatus, but could also be locked into place so that the astronaut can manipulate other controls or take a break, or use other arms. Vision would be provided by binocular cameras on the head, feeding a VR headset, so that the astronaut can move his head around, enjoy peripheral vision, and can use better optics than his own eyeballs behind a thick visor. The robots could ordinarily be stored in a shed on the exterior of the station or in the cargo bay of the spacecraft, so that the airlock needn't be used at all. The shed would merely be to protect against micrometeorites. Astronauts could work longer hours using the robots, since they wouldn't need to suit up, pre-breath, etc. and could work more efficiently since the hands could not only be as dexterous as human hands, but even better (e.g. a very tiny hand on a long skinny arm could be inserted into satellites so that small parts could be manipulated without resorting to trained ants). They could work in shifts, freezing the robot into place while two people switched who was the operator. Lag is likely to be an issue, so you would probably prefer working from space than from the ground, but that could be done too, in a pinch.
For the moon and Mars, lag is probably way too big of a problem, and people will want to roam around on the surface far from their base. The same ideas can still be used, however, by building a really large hard-skinned robot that has a spacesuit with the same VR rig inside of it. So long as the optics are the right distance apart and on the right part of the body (and remember that you can use smaller sets of optics on finer manipulator arms), the astronaut inside will see the landscape as if he's a giant, and will be able to take giant steps by causing the robot to do so. This would probably be a lot like the landmates in the manga 'Appleseed.' It's a bigger challenge, since it needs to be able to walk and all, but for freefall, the robot idea is clearly superior to always using spacesuits.
Which is not to say that NASA shouldn't look at some better suit designs, just that it has a lot less of a reason to do so if it acts in a practical manner, rather than in a romantic one, where people do all the work out in space. They have done some work on this; I wish they'd do more. One of the main issues is in eliminating lag. I think it's possible.
Meanwhile, what you would not want to emulate is the Canada arm. At least, not the controls for it, which don't work anything like a person's actual arm, even though we're pretty good with those.
"For the first time since Thomas Alva Eddison began selling wax cylinders, the music industry is having to deal with an informed customer (NOT consumer) base whose constituents can, and do, communicate with each other via blogs, emails, IM, chats, text messaging, and so on.
I didn't know that they had weblogs back in Edison's time. I can't imagine that they did much, though. I mean, did Edison have to tell people, "Well, I invented this thing, and it's not good for a whole lot yet, but just you wait until the late 1990s, early 2000's. Then it'll be a firecracker!"
No, if you want to contest jurisdiction in US courts, the best means is to actually do so, if necessary by means of a special appearance for that purpose so that you don't inadvertently waive the point. So long as you follow the right procedure, it's entirely possible to argue jurisdiction and to argue the merits of the case. Ignoring the court is not a good way to go about things.
Typically sampling is not covered under fair use since you are creating a work based on the copyrighted work which is (typically) not parody, satire or a commentary upon the original work.
No, that's not correct. You're sort of conflating two factors there. If a use is transformative, then it's typically fair. A parody is transformative, but then, so is sampling; this factor is simply whether a new work is created. The precise nature of the work (e.g. parody, etc.) is irrelevant. The other factor is effect on the market, which parodies tend to win on since artists rarely engage in self-parody or condone it in others, so it has to be done without authorization. For samples, there is a market, so it tends to work against them.
But I think this is patently unfair. Sampling is the auditory form of collage, which no one has a problem with. I think that the precedents that have come down against sampling are in error, and that one of the main reasons the courts have screwed up on this is merely that it's pretty new, and that it started out as something of an underground thing.
In any case, a fair use needn't be a parody, or commentary, etc. Those are just examples of uses that are often fair. They're not automatically fair, and works that aren't in those categories aren't automatically unfair. Don't take the illustrative examples to be more important than they really are.
Again, this shows that the litmus test is whether the larger work using the material requires the amount used.
No, not really. None of the traditional four factors is more important than any other one, nor is the fair use analysis strictly mechanical. For example, time shifting in Sony had three of the factors against fair use (it used the whole work, it wasn't transformative in any way, and the work was creative in nature), but was still a fair use. In practice, of course, that fourth factor -- whether the fair use harms the market for the work being used by supplanting it -- tends to be what courts are most concerned with.
One consequence of this is that sampling -- unfairly, IMO -- tends to not be protected by fair use. Even though a sample is very small and usually not a substantial portion of the work it comes from, and even though the song using the sample is using it in a transformative way, the fact that there's a market for sampling tends to cause the samplers to lose their court cases.
Meh. Moral rights don't actually exist, no one actually follows through on the idea, whatever they might say to the contrary, and they're a craptastic idea. Better to reform copyright from a wholly utilitarian approach (in which the object isn't to maintain a private monopoly, but to achieve societal goals through the careful and limited use of monopolies)
Meh. Why go all the way to Moscow? It's just as easy to go to Canal Street in New York City for anything from DVDs to designer watches and bags to surprisingly good salsa.
I generally agree with you. However, you should know that Steamboat Willie is included on the 'Mickey Mouse in Black and White, vol. 1' DVD. You can get it on Amazon.
There is nothing slave-like about it at all. No one is forcing artists to do or not do a particular thing in such a relationship. But no one is going to pay good money for a displeasing work of art. In the modern world, a publishing artist might need to satisfy thousands or millions of customers. Where the artist receives patronage, he only needs to satisfy the patron. It's the same thing, but with a much smaller audience and more targeted approach.
Plus, of course, many works of art are created under this relationship even today. Not everything is made for the mass market, especially in areas like the fine arts and in architecture.
i.e. the right to privacy allows you to kill a fetus??? Whatever side of the issue you are on in that...that is just terrible jurisprudence.
Not especially. The right of privacy allows you to make medical decisions concerning your own body. That's one of them. The only thing that makes it particularly different from deciding whether to have a tooth removed is that after a certain point the fetus might be a premature but viable infant, permitting the mother to stop being pregnant without having it die. With improvements in technology, someday we'll probably be able to remove a fetus from a woman long before viability and continue gestating it artificially. Privacy has to do with a decision as to whether or not to remain pregnant. The death of the fetus is just an unfortunate side effect; if it can be avoided without forcing the woman to continue to be pregnant, then that's what the courts say ought to happen. It's not terrible jurisprudence by any means.
Well, you may have me slightly wrong, though you're right about your history.
The original intent of copyright wasn't to regulate publishing, but to better satisfy the public interest. It merely did this by means of regulating publishing. Personally, I'm not married to any specific means of accomplishing the goals of copyright. If regulating publishing will do the trick better than anything else, then that's fine, but if not, then that's fine too. What I'm mainly concerned about is how to get the most satisfaction of the public interest for the least cost to the public.
So in fact, I think that so long as it was noncommercial and only engaged in by natural persons (i.e. human beings, not corporate entities, etc.), even public copying would be okay. Thus things like unrestricted P2P networks would be legal, at least so long as there were no ads involved at any step along the way, nor sharing quotas, nor exchange of money, etc. Certainly this would have a significant negative effect on the market for works, and would result in fewer works being created. OTOH, I think that those downsides to this would be more than made up for by the increased freedom of the public with regard to those works, since that is also just as much in the public interest. Further, this sort of piracy is widespread and hard to stop right now, even with our awful copyright laws. Yet there still seems to be a pretty booming market. I know plenty of people who engage in piracy, but who also go to the movies, go to the theater, buy authorized copies of things, etc.
Also I'd like to see registration as a necessary formality again, but I'm sure we don't need to get into the whole of my agenda.
Do you think Congress intended that people only be able to make copies for themselves, and pay royalties for the privilege?
Did the RIAA fight for this act because people were making copies for themselves of material they already legally had a right to? Was that a big problem?
Yes, and the history of the act generally bears this out. Remember, RIAA (as well as its analogues elsewhere) had been fighting against private, noncommercial home taping for years. Congress ultimately decided that it needed to be legitimized, since everyone was doing it anyway, but acknowledged that it would have an effect on their bottom line, for which they deserved something. Also, people were making a lot of tapes off of the radio, or making mix tapes, often of albums they did own copies of. Personal lending of albums used to compile mix tapes or for making copies also occurred a lot, but I've already pointed out (correcting myself in the process) that this was permissible.
But I still don't see that Congress wanted to have people make copies and distribute them.
Also, one other thing from earlier in the discussion: upon further thought, I think that it might not be correct to assume that AHRA would shield a party from secondary liability merely because it shields the direct infringer. IIRC, Napster argued this, and lost, on the basis that it would render as surplusage the various specific protections for secondary parties in 1008. I still think it's worth trying, however, just not as certain.
Finally, bear in mind the timeline here. The AHRA dates back to the early 90's. The idea of CD burning was known, but the technology was extremely uncommon. The act dealt with cassette tapes, and looked forward to two technologies that were just hitting the mass market: DAT (which was older, and had a head start over CDR) and Minidisc (which was brand new, but was being aggressively pushed by Sony, in the way that they push all kinds of flop formats). I suppose that someone expected CDR to come along in time, but it wasn't as big a concern as the other media, which are rewritable.
I took a look at the statute in question and found that my recollection of it was mistaken: it's only not first sale to lend a phonorecord for purposes of commercial gain. My argument still stands re: commercial lending of phonorecords, but moots the private lending issue. Sorry about the mistake.
Actually, ignore all of that, I must be a little slow today.
The 109 exception I've been thinking of deals with lending for direct or indirect commercial advantage. Boy, is my face red.
The mea culpa being out of the way, however:
Bob has a legally purchased CD. Alice loans (she maintains title) a blank audio CD-R to Bob. There is no copyright material present on a blank CD, and this is not a 109 violation. Bob makes use of the AHRA provisions to make a copy of his CD onto Alice's blank CD-R, which he then returns. There has been no distribution, loaning, or sale of copyrighted material. Only copying in accordance with the AHRA.
I don't think I agree. Once Bob has written to the CD, it is an unlawfully made copy. While that copy might be owned by Alice, it is in Bob's possession. I think that a court could pretty easily find the return of the CD to constitute an infringing distribution of a copy, especially given that while the language in 106 is a bit limited ("to distribute... by sale or other transfer of ownership, or by rental, lease, or lending"), the language in 109 is pretty broad and wouldn't be present unless Congress meant for 106 to have a larger scope than it appears to at first glance ("the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord"). The return of the CD to Alice sounds like an authorized disposal of the possession of the copy to me.
Now, because Congress saw a need to specifically state that last part ("embodies a sound recording at the time it is first distributed"), it is clear that, even after copyright material has been copied onto it, an Audio CD-R falls under that definition, or there would be no need for that provision (and it meets the rest of the definition).
As for this, I'm really sure I disagree. It's certainly an interesting reading, but it doesn't pass the laugh test, IMO. Congress' intent was to only permit blank media to be distributed, and I think that a court would interpret the statute in that manner. This isn't to say that it couldn't interpret it as you suggest; it could. But it pretty surely wouldn't given any alternative. It's a nice try, though.
1. Alice has an authorizedly-made CD. She makes a copy pursuant to the AHRA. She gives the AHRA-copy to Bob. This infringes on the distribution right because it is a distribution, it is not exempted by first sale (which only applies to lawfully-made copies, which AHRA-copies are not), and is likely not exempted by fair use (since it's meant as a way for Bob to avoid having to get a lawfully made copy).
2. Alice has an authorizedly-made CD. She gives the authorizedly-made copy to Bob. Bob makes his own AHRA-copy. Bob gives Alice the authorizedly-made copy back. If this was a transfer of ownership in the authorizedly-made CD, then it is exempted by first sale. But if it is lending, and is not otherwise exempted (again, fair use is likely no help here), then it is infringing. A court can look at the underlying nature of the transaction; 'sale' or 'transfer' are not magic words that dictate what the transaction actually is.
3. Alice has an authorizedly-made CD. She makes her own AHRA-copy. She gives the authorizedly-made copy to Bob. Bob keeps it. Maybe in the future, Bob will make an AHRA-copy and give the authorizedly-made copy to Carol. Alice will never get the authorizedly-made CD back. This would be lawful. But I think it's probably the least likely scenario. I suspect that most people would prefer to have the pressed CD than to be left with a burned one. (Actually I suspect that hardly anyone ever uses AHRA or would bother even if they knew about it and knew how to, but let's not drift off point)
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Let's see if I understand his logic right. Is he saying that using Tetris is ethical only if I use it to make LOCKJAW? So what about songs or movies? How would one make a free replacement for one of those?
Pretty easily. Software is not anything special, really. Like all creative works, there is an idea and an expression of that idea. Copyright only protects expressions, and never protects ideas. So the idea of tetris -- the rules -- are not protected by copyright. Only the implementation is. So long as you code your own program that follows the same rules, you're not infringing on any copyrights. (Patents are another issue)
Songs and movies have underlying ideas too. The trick is getting as much of the idea as you want without going too far and getting into the expression. It's considered to be a continuum, lest pirates take an entire work, tweak it only very slightly, and claim to have not infringed since there is that slight difference in the expression. The line is very fuzzy. But you could certainly make a movie about a 1930's archeologist adventurer who fights Nazis without infringing on the Indiana Jones copyrights. You would just need to be cautious.
How cheap do you think it is to make a movie like 'Pride and Prejudice?'
Pretty cheap, depending on how you do it. You can do Hamlet in an authentic Danish castle with period costumes and hundreds of extras, or on an empty stage with a minimum of actors (perhaps as few as one if he has some stamina and talent). Neither will necessarily be better or worse than the other. Spectacle is fine, but it's really not all that important in the grand scheme of things.
If anyone could peruse Art. II, sec. 8 of the federal constitution, I'd be pretty impressed. There is no such section in Art. II.
Well, your cheaper flatscreen power supplies are known to make high pitched noises too, even when the TV is on standby. My sister has just such a one.
It's not that easy. Google cannot know 1) what works are copyrighted, 2) whether there has been an infringing act, and 3) whether that act is in fact infringing or whether there is some other factor that makes it non-infringing (e.g. an implied non-exclusive license). The courts certainly disagree all the time, as do learned commentators, legal scholars, and copyright lawyers. Not to mention that the laws vary worldwide. There are no bright line tests for humans to follow, much less which could be adapted for mere machines. And the facts are often completely outside of Google's ability to determine, because they are not contained within the work itself. And even facts which are contained within the work might be beyond the abilities of a machine (e.g. a copyright notice within a video, if it's just blurry pixels, might be recognizable to a human, but machines aren't that good at recognizing these things yet. God help you if it's an audio copyright notice, as might be appended to a radio broadcast; speech recognition is way beyond where it is supposed to be, to say nothing of flying cars and atomic-powered kill-bots.
It's still more reasonable for the burden to be on the copyright holder. He knows these things, and he can recognize his work, and he has a strong motivation to look so he can be trusted to do a thorough job. Plus, it's less paternalistic this way.
Well, having reviewed the earlier posts by that person, I think that he was saying both that under the current law, YouTube is infringing, and that if he was wrong on that, then the law should be changed so that YouTube would be infringing.
Personally, I think he's foolish. Particularly as there is no way for YouTube, or any other ISP of any kind whatsoever to actually know whether any given clip is legitimately being submitted or not. The Internet as a whole would come to a screeching halt -- or at least the US involvement in it would, while other countries kept going merrily along. Congress considered this issue back in the 90's and decided that the Internet was more important than protecting copyright holders. But, since they didn't want to entirely screw over the copyright holders (and since copyright holders wanted something better than unenforceable C&D's and the gigantic pain of getting an injunction from a court), they put into place a takedown system that is more responsive. One of the important and good features of it is that it puts the burden on the copyright holder to find infringements. This is good because 1) no one in the world is in a better position to know when something is infringing than the copyright holder. Google does not know who the copyright holder has licensed; the copyright holder does. 2) It allows for resources to be allocated to the works the copyright holder considers most important. Google does not know whether a movie studio is more concerned over an old silent movie clip with Russian dialog cards, or a huge blockbuster from a few years back. The studio does, and can allocate resources according to its own preferences. (Which in my hypothetical, since it's my hypothetical, is the silent movie, since it has contractual obligations which force its hand, but views the clips from the blockbuster as user-generated viral marketing that it is willing to leave there until it changes its mind)
Plus, of course, all Google can possibly ever do is trust the word of the people doing the uploading. What else is it going to do? Checksums are so defeatable that they'd be pointless. (Plus if they're simple, collisions become likely, but if they're complicated, the overhead becomes significant, given the scale at which they operate) Having human beings view each thing, then consult a database -- imprecisely, of course, since people could have differing opinions, e.g. is that a horizontal bungee cord, or a human slingshot -- would be an Internet-stopping 'solution.' Having humans sign off on each and every bit of content on the Internet would be worse than if you needed an operator to put every phone call through. There aren't that many humans able to do that work, and it's utterly stupid work.
The current method is flawed, sure, but it's better than anything the moron from before was suggesting. If he doesn't like the Internet so much, why the hell is he using it, that's what I want to know. Especially since we cannot trust his word that he is the copyright holder of his posts, and thus they shouldn't be appearing unless we laboriously verify that they're on the level.
Actually, that is untrue. The Berne Convention -- which is utter crap, btw, and should be gotten rid of and not replaced -- does not claim to make a copyright granted in country A enforceable in country B. Rather, it deals with the granting of copyrights; if a work is created in country A, and is copyrightable in country B, then country B must also grant a copyright on the work. It also deals with setting a minimum for what is copyrightable, and how long those copyrights last, etc.
So if you are a British author, then you likely have a US copyright, but it is only that copyright, and not your UK copyright, that can be enforced in the US.
Indeed, you cannot make a claim in the US founded on the Berne Convention; it is not a source of US copyright law. (See 17 USC 104(c) for this)
No, it doesn't matter. The manufacturer of a xerox machine either does or does not get sued on the same basis as the owner of the machine, where in both cases neither the manufacturer or the owner are the ones engaging in direct infringement. Depending on the facts, it's entirely possible for one, or both, or neither, to be indirectly infringing. But merely providing a means for infringement does not guarantee that they are infringing.
Then he'd have to hypothesize a wood chipper that had a million feed hoppers hidden in the dark. Specifically setup so that there is no way to tell who is putting what into the machine.
Still irrelevant. There's no duty to be aware. There can be constructive knowledge, but that's not the same thing.
And the owner of the wood chipper somehow made money off of intestines and brains spraying from the outlet.
Still irrelevant, if the safe harbor holds.
Youtube built a system that facilitates copyright infringment. They cannot identify who uploads a particular clip. They do not prevent reuploading of the exact same file that has been legally removed.
Yes, but that's all legal.
They are nothing like an ISP.
Wrong. Here is the relevant definition of an ISP from the law:
Google provides YouTube, which is an online service. So as far as anyone cares, it is an ISP.
Well, the 'good' DMCA isn't that good, in that it still allows for copyright holders to issue takedowns left and right without carefully verifying them, and those takedowns can be quite broad (IIRC, there was at least one case where an ISP had to delete an entire usenet group from its newsserver), and there's no reason for them to act differently. Also, most of the safeharbor requires registration by the safeharbor claimant, which they might not have realized they should do, since it's not all that clear.
There are good parts to the idea of a safeharbor, but it could be improved quite a lot. Let's not forget that.
No, he's pretty well on target. Let's remember that prior to the enactment of the 512 safeharbor, there were suits brought by copyright holders against ISPs for copyright infringement committed by the ISPs because they were hosting web sites on which infringing material had been put by users. The ISPs won some and lost some, and the uncertainty of the whole thing prompted them to lobby for the safeharbor lest they have to quit being ISPs due to the legal risk involved.
But in the cases where the ISPs won, they generally won on the argument that they provided a means for users to do things, but that they didn't police those means. The common analogy was that of a photocopier which was made available for the public to use without supervision; the courts didn't feel that it would be right to hold the owner responsible there, and thus, not to hold an ISP responsible in the ordinary case. Probably the leading case is Religious Technology Center v. Netcom.
Why the hell are we even bothering with putting so much effort into spacesuits? The vast majority of our EVAs are in space right now, rather than on the moon or any other body. Since most of space is uninteresting, those EVAs tend to occur only a short distance outside of the spacecraft or station that the astronaut has just been aboard. This being the case, I suggest that rather than remove people from the relative safety and comfort of their craft, sticking them into restrictive, uncomfortable suits just to do EVAs, that we use teleoperated robots instead. The astronaut can sit inside the cabin, using the robot to do the EVA work. I would think that the best design would roughly imitate human physiognomy, or at least the parts you need to do EVAs: two arms, a torso connecting them, and a head. The arms can not only be stronger than human arms (mass is still an issue, even when there's no weight), but can themselves contain all the tools the astronaut needs, and can contain many smaller sub-arms and hands for more delicate work, or to hold items in place. The robot could incorporate maneuvering thrusters, avoiding the need for the MMU packs, and a third arm when it needs to grab onto something as a stable platform from which to work. The hands and arms would generally be controlled with a dataglove sort of apparatus, but could also be locked into place so that the astronaut can manipulate other controls or take a break, or use other arms. Vision would be provided by binocular cameras on the head, feeding a VR headset, so that the astronaut can move his head around, enjoy peripheral vision, and can use better optics than his own eyeballs behind a thick visor. The robots could ordinarily be stored in a shed on the exterior of the station or in the cargo bay of the spacecraft, so that the airlock needn't be used at all. The shed would merely be to protect against micrometeorites. Astronauts could work longer hours using the robots, since they wouldn't need to suit up, pre-breath, etc. and could work more efficiently since the hands could not only be as dexterous as human hands, but even better (e.g. a very tiny hand on a long skinny arm could be inserted into satellites so that small parts could be manipulated without resorting to trained ants). They could work in shifts, freezing the robot into place while two people switched who was the operator. Lag is likely to be an issue, so you would probably prefer working from space than from the ground, but that could be done too, in a pinch.
For the moon and Mars, lag is probably way too big of a problem, and people will want to roam around on the surface far from their base. The same ideas can still be used, however, by building a really large hard-skinned robot that has a spacesuit with the same VR rig inside of it. So long as the optics are the right distance apart and on the right part of the body (and remember that you can use smaller sets of optics on finer manipulator arms), the astronaut inside will see the landscape as if he's a giant, and will be able to take giant steps by causing the robot to do so. This would probably be a lot like the landmates in the manga 'Appleseed.' It's a bigger challenge, since it needs to be able to walk and all, but for freefall, the robot idea is clearly superior to always using spacesuits.
Which is not to say that NASA shouldn't look at some better suit designs, just that it has a lot less of a reason to do so if it acts in a practical manner, rather than in a romantic one, where people do all the work out in space. They have done some work on this; I wish they'd do more. One of the main issues is in eliminating lag. I think it's possible.
Meanwhile, what you would not want to emulate is the Canada arm. At least, not the controls for it, which don't work anything like a person's actual arm, even though we're pretty good with those.
"For the first time since Thomas Alva Eddison began selling wax cylinders, the music industry is having to deal with an informed customer (NOT consumer) base whose constituents can, and do, communicate with each other via blogs, emails, IM, chats, text messaging, and so on.
I didn't know that they had weblogs back in Edison's time. I can't imagine that they did much, though. I mean, did Edison have to tell people, "Well, I invented this thing, and it's not good for a whole lot yet, but just you wait until the late 1990s, early 2000's. Then it'll be a firecracker!"
No, if you want to contest jurisdiction in US courts, the best means is to actually do so, if necessary by means of a special appearance for that purpose so that you don't inadvertently waive the point. So long as you follow the right procedure, it's entirely possible to argue jurisdiction and to argue the merits of the case. Ignoring the court is not a good way to go about things.
Typically sampling is not covered under fair use since you are creating a work based on the copyrighted work which is (typically) not parody, satire or a commentary upon the original work.
No, that's not correct. You're sort of conflating two factors there. If a use is transformative, then it's typically fair. A parody is transformative, but then, so is sampling; this factor is simply whether a new work is created. The precise nature of the work (e.g. parody, etc.) is irrelevant. The other factor is effect on the market, which parodies tend to win on since artists rarely engage in self-parody or condone it in others, so it has to be done without authorization. For samples, there is a market, so it tends to work against them.
But I think this is patently unfair. Sampling is the auditory form of collage, which no one has a problem with. I think that the precedents that have come down against sampling are in error, and that one of the main reasons the courts have screwed up on this is merely that it's pretty new, and that it started out as something of an underground thing.
In any case, a fair use needn't be a parody, or commentary, etc. Those are just examples of uses that are often fair. They're not automatically fair, and works that aren't in those categories aren't automatically unfair. Don't take the illustrative examples to be more important than they really are.
Again, this shows that the litmus test is whether the larger work using the material requires the amount used.
No, not really. None of the traditional four factors is more important than any other one, nor is the fair use analysis strictly mechanical. For example, time shifting in Sony had three of the factors against fair use (it used the whole work, it wasn't transformative in any way, and the work was creative in nature), but was still a fair use. In practice, of course, that fourth factor -- whether the fair use harms the market for the work being used by supplanting it -- tends to be what courts are most concerned with.
One consequence of this is that sampling -- unfairly, IMO -- tends to not be protected by fair use. Even though a sample is very small and usually not a substantial portion of the work it comes from, and even though the song using the sample is using it in a transformative way, the fact that there's a market for sampling tends to cause the samplers to lose their court cases.
Meh. Moral rights don't actually exist, no one actually follows through on the idea, whatever they might say to the contrary, and they're a craptastic idea. Better to reform copyright from a wholly utilitarian approach (in which the object isn't to maintain a private monopoly, but to achieve societal goals through the careful and limited use of monopolies)
Meh. Why go all the way to Moscow? It's just as easy to go to Canal Street in New York City for anything from DVDs to designer watches and bags to surprisingly good salsa.
I generally agree with you. However, you should know that Steamboat Willie is included on the 'Mickey Mouse in Black and White, vol. 1' DVD. You can get it on Amazon.
There is nothing slave-like about it at all. No one is forcing artists to do or not do a particular thing in such a relationship. But no one is going to pay good money for a displeasing work of art. In the modern world, a publishing artist might need to satisfy thousands or millions of customers. Where the artist receives patronage, he only needs to satisfy the patron. It's the same thing, but with a much smaller audience and more targeted approach.
Plus, of course, many works of art are created under this relationship even today. Not everything is made for the mass market, especially in areas like the fine arts and in architecture.
i.e. the right to privacy allows you to kill a fetus??? Whatever side of the issue you are on in that...that is just terrible jurisprudence.
Not especially. The right of privacy allows you to make medical decisions concerning your own body. That's one of them. The only thing that makes it particularly different from deciding whether to have a tooth removed is that after a certain point the fetus might be a premature but viable infant, permitting the mother to stop being pregnant without having it die. With improvements in technology, someday we'll probably be able to remove a fetus from a woman long before viability and continue gestating it artificially. Privacy has to do with a decision as to whether or not to remain pregnant. The death of the fetus is just an unfortunate side effect; if it can be avoided without forcing the woman to continue to be pregnant, then that's what the courts say ought to happen. It's not terrible jurisprudence by any means.
Well, you may have me slightly wrong, though you're right about your history.
The original intent of copyright wasn't to regulate publishing, but to better satisfy the public interest. It merely did this by means of regulating publishing. Personally, I'm not married to any specific means of accomplishing the goals of copyright. If regulating publishing will do the trick better than anything else, then that's fine, but if not, then that's fine too. What I'm mainly concerned about is how to get the most satisfaction of the public interest for the least cost to the public.
So in fact, I think that so long as it was noncommercial and only engaged in by natural persons (i.e. human beings, not corporate entities, etc.), even public copying would be okay. Thus things like unrestricted P2P networks would be legal, at least so long as there were no ads involved at any step along the way, nor sharing quotas, nor exchange of money, etc. Certainly this would have a significant negative effect on the market for works, and would result in fewer works being created. OTOH, I think that those downsides to this would be more than made up for by the increased freedom of the public with regard to those works, since that is also just as much in the public interest. Further, this sort of piracy is widespread and hard to stop right now, even with our awful copyright laws. Yet there still seems to be a pretty booming market. I know plenty of people who engage in piracy, but who also go to the movies, go to the theater, buy authorized copies of things, etc.
Also I'd like to see registration as a necessary formality again, but I'm sure we don't need to get into the whole of my agenda.
Do you think Congress intended that people only be able to make copies for themselves, and pay royalties for the privilege?
Did the RIAA fight for this act because people were making copies for themselves of material they already legally had a right to? Was that a big problem?
Yes, and the history of the act generally bears this out. Remember, RIAA (as well as its analogues elsewhere) had been fighting against private, noncommercial home taping for years. Congress ultimately decided that it needed to be legitimized, since everyone was doing it anyway, but acknowledged that it would have an effect on their bottom line, for which they deserved something. Also, people were making a lot of tapes off of the radio, or making mix tapes, often of albums they did own copies of. Personal lending of albums used to compile mix tapes or for making copies also occurred a lot, but I've already pointed out (correcting myself in the process) that this was permissible.
But I still don't see that Congress wanted to have people make copies and distribute them.
Also, one other thing from earlier in the discussion: upon further thought, I think that it might not be correct to assume that AHRA would shield a party from secondary liability merely because it shields the direct infringer. IIRC, Napster argued this, and lost, on the basis that it would render as surplusage the various specific protections for secondary parties in 1008. I still think it's worth trying, however, just not as certain.
Finally, bear in mind the timeline here. The AHRA dates back to the early 90's. The idea of CD burning was known, but the technology was extremely uncommon. The act dealt with cassette tapes, and looked forward to two technologies that were just hitting the mass market: DAT (which was older, and had a head start over CDR) and Minidisc (which was brand new, but was being aggressively pushed by Sony, in the way that they push all kinds of flop formats). I suppose that someone expected CDR to come along in time, but it wasn't as big a concern as the other media, which are rewritable.
I took a look at the statute in question and found that my recollection of it was mistaken: it's only not first sale to lend a phonorecord for purposes of commercial gain. My argument still stands re: commercial lending of phonorecords, but moots the private lending issue. Sorry about the mistake.
Actually, ignore all of that, I must be a little slow today.
... by sale or other transfer of ownership, or by rental, lease, or lending"), the language in 109 is pretty broad and wouldn't be present unless Congress meant for 106 to have a larger scope than it appears to at first glance ("the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord"). The return of the CD to Alice sounds like an authorized disposal of the possession of the copy to me.
The 109 exception I've been thinking of deals with lending for direct or indirect commercial advantage. Boy, is my face red.
The mea culpa being out of the way, however:
Bob has a legally purchased CD. Alice loans (she maintains title) a blank audio CD-R to Bob. There is no copyright material present on a blank CD, and this is not a 109 violation. Bob makes use of the AHRA provisions to make a copy of his CD onto Alice's blank CD-R, which he then returns. There has been no distribution, loaning, or sale of copyrighted material. Only copying in accordance with the AHRA.
I don't think I agree. Once Bob has written to the CD, it is an unlawfully made copy. While that copy might be owned by Alice, it is in Bob's possession. I think that a court could pretty easily find the return of the CD to constitute an infringing distribution of a copy, especially given that while the language in 106 is a bit limited ("to distribute
Now, because Congress saw a need to specifically state that last part ("embodies a sound recording at the time it is first distributed"), it is clear that, even after copyright material has been copied onto it, an Audio CD-R falls under that definition, or there would be no need for that provision (and it meets the rest of the definition).
As for this, I'm really sure I disagree. It's certainly an interesting reading, but it doesn't pass the laugh test, IMO. Congress' intent was to only permit blank media to be distributed, and I think that a court would interpret the statute in that manner. This isn't to say that it couldn't interpret it as you suggest; it could. But it pretty surely wouldn't given any alternative. It's a nice try, though.
Well, there are a few likely possibilities:
1. Alice has an authorizedly-made CD. She makes a copy pursuant to the AHRA. She gives the AHRA-copy to Bob. This infringes on the distribution right because it is a distribution, it is not exempted by first sale (which only applies to lawfully-made copies, which AHRA-copies are not), and is likely not exempted by fair use (since it's meant as a way for Bob to avoid having to get a lawfully made copy).
2. Alice has an authorizedly-made CD. She gives the authorizedly-made copy to Bob. Bob makes his own AHRA-copy. Bob gives Alice the authorizedly-made copy back. If this was a transfer of ownership in the authorizedly-made CD, then it is exempted by first sale. But if it is lending, and is not otherwise exempted (again, fair use is likely no help here), then it is infringing. A court can look at the underlying nature of the transaction; 'sale' or 'transfer' are not magic words that dictate what the transaction actually is.
3. Alice has an authorizedly-made CD. She makes her own AHRA-copy. She gives the authorizedly-made copy to Bob. Bob keeps it. Maybe in the future, Bob will make an AHRA-copy and give the authorizedly-made copy to Carol. Alice will never get the authorizedly-made CD back. This would be lawful. But I think it's probably the least likely scenario. I suspect that most people would prefer to have the pressed CD than to be left with a burned one. (Actually I suspect that hardly anyone ever uses AHRA or would bother even if they knew about it and knew how to, but let's not drift off point)