No court would award fees of $5,000 per hour in a copyright case, even if the winning party actually paid that much. The law provides for a "reasonable" attorney fee, and that isn't reasonable.
Shut the hell up. As a copyright lawyer, I think that fee is entirely reasonable. Perhaps even too reasonable.
Basically, you propose a budget for a work. Then you solicit investment from individuals, which goes to a third party. If the amount of money you want is raised, it'll be doled out to you by the third party, which monitors your progress so that you deliver what you promised to create. Once you're done, the work is released to the investors and isn't copyrighted. If there are few, united investors, they can then charge admission to see it, etc. in order to recoup their investment. If there are many, disunited investors, then hopefully their investment was about the price of a DVD or movie ticket, since the work is effectively out there for everyone now.
Remember, that ultimately, movies make their money from box office, DVD, and PPV receipts, in a matter of weeks after release in each medium. The SPP is a method for cutting out the middleman of the studios, who want to make as much money as possible, for the middleman of a third party that just wants things to run efficiently but isn't due to make a gigantic profit either.
But as long as there exist artistic works that would not be made but for some kind of copyright, we're better off having copyright laws.
No, that's not true. It's halfway there, but you left out some essential bits.
You're failing to look at the entire issue. While it is certainly good to have more works created than fewer, it is also good to have fewer restrictions as to works than more. If we must shoulder the burden of more restrictions (a detriment) in order to have more works created (a benefit) then the issue is which is greater: the benefit or the detriment?
So long as the benefit of more works, which were caused to have been created by the incentive of copyright, outweighs the detriment of having that copyright, then having that copyright is good. But if the detriment of copyright outweighs the benefit of having more works created, then we're better off not having that copyright. Note also that the incentivizing effect of more copyright is not constant; a copyright that had a duration of one year has more of an incentivizing effect than the last year of a copyright that lasts one hundred years; this is because the economic value of a work tends to be realized sooner than later. Detrimental effects of copyright don't tend to die off so quickly, however. Further, it is actually possible for copyright to disincentivize the creation of works if it becomes expansive enough to enable significant rent-seeking behavior by existing copyright holders who don't appreciate competition.
So if you want to be accurate, you ought to instead say:
But as long as there exist artistic works that would not be made but for some kind of copyright, and the benefit of having those works is greater than the detriment of the copyright that it took to get them created, we're better off having that much copyright, no more, no less.
How much of a work is used is one of several factors in a fair use analysis, but it's entirely possible to use all of a work and still have it be a fair use. E.g. when time shifting or space shifting is a fair use, it's a use that uses the entire work in question.
Without trying the software myself I'd expect it would take the organization maybe $5K to build similar functionality that meets all their needs, it is actually not so easy to find exactly what you want.
Maybe. It depends on what they were doing with it, but I expect that there are plenty of adequate programs already on the market that would have sufficed. They happened to choose this particular one, but they'd want to show that there were alternatives. Of course, I don't know what their needs are, and I know nothing about blogging software, so it's unclear.
I do admit a feeling that software designed to make work easier or that enables activities like blog PR does provide value continually when run that is separable from the content of the posts themselves.
Sure; if it saves time as compared to the most likely substitute, then use the time delta to compute their monetary savings, which could be factored into net profits, as this is a reduction of costs.
It is my guess that a business model for private software developers to sell on the Internet source code is not greatly protected by the law, or if it is then most developers don't know how to take advantage of it.
No, it is protected just as much as anything else. What I'm saying is that in most situations, actual damages and profits don't yield very large amounts. Sure, if someone infringes on your screenplay and makes a movie that grosses hundreds of millions of dollars, then it's the way to go. But if one person pirates a copy of a CD, it's nearly pointless. This situation is more like the latter than the former. That's part of the reason why statutory damages are desirable for authors, but you have to do certain things in order to be eligible for them. I don't know if this author has done these things, or still has an opportunity to do these things (there's a time limit). But if he can, he probably ought to.
I do hope the author has a lawyer and is able to get paid for his work.
the remedy you are advocating is a DMCA takedown notice
No, it isn't. All I was doing was correcting someone's misunderstanding of the DMCA.
However, on that subject:
- is likely not be subject to US jurisdiction ? (hint, the author has a UK website) and where the loss is ~ 25 pounds ?
Let's remember that the MPAA is subject to the DMCA, and that foreign authors are just as able to wield the DMCA against infringers in the US as anyone else. In this case it is the MPAA who is arguably the infringer. The amount of the loss is irrelevant. Frankly, the main reason I can imagine as to why the DMCA wouldn't really be of interest here -- assuming the site hadn't been pulled down anyway -- is that while the software used to generate the site is the author's work, it is possible that the site itself is not.
But it's pretty moot, and like I said, I never advocated using the DMCA in this matter. I only pointed out that you don't have to violate any of the prohibitions of the DMCA in order for a 512 takedown notice to be sent.
No, the potential plaintiff is in England. The defendant -- and more importantly, the vast majority, if not all, of the defendant's assets -- are in the US. If a suit were brought, I'd be surprised if it wasn't in US courts, pursuant to US law.
However I think some people might be interested in assigning a positive cash value to a page view, if the page is generated using stolen software, and in calculating what the log file says that sum is.
Which is great, but not really feasible. In a copyright suit, you can either sue for a) actual damages and profits, or b) statutory damages. If you are using the former theory, then the only way that you can get paid per page view where each page is generated in some infringing manner is if you can show that you are actually damaged by each page view. And it can't be just any kind of damage, it has to be a properly attributable damage. You end up having to calculate how many users of the total number of users at issue would've given money to the plaintiff but didn't because of this. The number of users is probably less than the number of page views. The number of users who, but for the removal of the links, would've given money to the plaintiff is probably far, far less. What you don't get to do, if you're suing for actual damages and profits, is sue for purely hypothetical damages. Similarly, the profits need to be the profits attributable to the infringement. If MPAA can show that some of their profits are attributable to something else, anything else, then those are excluded. I doubt that they made any profits attributable to this infringment, and so a nominal figure of a dollar for the profits portion of the damages calculation seems likely to me (not knowing all the facts, I admit). The actual damages could be more, but probably not very much, given how low click-through rates are, etc.
It certainly was worth more than $1 to the company to put up a blog.
Maybe, but it's irrelevant, unless you can work it into actual damages and profits. You could argue that they profited by using this software instead of something more time-consuming and difficult to install, but they could counter if there's something quicker and easier that is otherwise an acceptable substitute for what they were doing. That's because the profits at issue are net profits, not gross profits; infringers are allowed to deduct costs from that part of the calculation.
Your suggestion that software is cheap at 150 pounds is also incredible.
Oh? The one amount of actual damages he knows he can get is the cost of the software. Everything beyond that depends on factors outside his control -- how many people looked at the blog on the MPAA site, of those, how many would've gone to his site, of those, how many would've become his customers, of those, how much would they have paid, etc. -- and strikes me as being likely to result in a rather small amount. The amount of MPAA profits attributable to their infringement seems to me to be so small as to make a token dollar seem reasonable.
Given that the costs of going forward are likely to far outweigh a mere £150, I'd say that there is a very real chance that if he went to court he would easily win, but end up poorer than when he began. It might be a moral victory, but it's hard on the wallet, and if I were him, and I didn't have any better alternatives to that outcome, I wouldn't bother. A nasty letter is cheap to send, but beyond that it would be self-defeating.
Of course, I don't know the precise facts, and a lot hinges on them. Perhaps he could end up covering his costs and making a substantial sum in the process. I don't know. The best thing this guy can do is to find out without delay.
Is this reasoning based on statutory damages only being applicable to music or movies under U.S. copyright law?
No, statutory damages is available for software and for web pages, but there are procedural requirements to be eligible for this. If this guy is eligible for them, then they are by far his best bet. But I'd have some concerns over that, and it seems likely that he will need to act immediately lest he lose the opportunity to get statutory damages.
There is also the issue of this involving a British company. The
Who the hell cares? It's a take down notice, which falls under 17 USC 512 -- which was part of the DMCA. It's used for any kind of copyright infringement. The DMCA did a lot of things, it's not all about anticircumvention, dumbass.
Stealing a copy would deprive the owner of the copy of that copy. Making a copy is quite different, and would deprive the owner of the original copy of nothing. The earlier poster was not saying substantially the same thing as you were.
It's not that strict copyright law is unenforceable, it's the fact that the culture overwhelmingly looks at copyright as a minor violation.
Which is why the best thing that we could do would be to make it so. Copyright should follow societal norms, not try to alter them. It's not important enough a subject to have the government dictate norms to us over. It's more like Prohibition than Desegregation.
No no no. It has nothing to do with the cost of the albu^H^H^H^Hsoftware. You see, since they didn't pay initially, they should have had a link. And if they had placed a link, then there would have been more users of Forest Blog, and thus they are liable for each user who did not use Forest Blog because they were missing the link. Therefore their liability should be $97 times everyone who has visited mpaa.org, and thus was a lost customer, plus punitive damages of $150,000 per page that should have had a link.
No no no. It has nothing to do with your made-up crap. If you want to argue that he was actually damaged by the failure to provide the link, then they are only liable for each user who did not use the software because of the missing link, and who otherwise would have used the software. Unless this is spectacularly popular software, not all users who see the link are going to use the software. So you determine which, if any, of the users, who went to the site would have used the software had the link been there. This will be some percentage of the users, perhaps a low percentage. You don't get to assume that every single one is a lost customer. That isn't how it works. Additionally, it's not every user that went to the entire domain, it's only the ones that went to the pages where they'd've seen the link.
So really, we're not looking at all mpaa.org users. We're looking at a rather tiny fraction of them, since those would be the only ones for which there'd be actual damages. Not made-up damages. You don't get made-up damages in court.
As for punitive damages, they don't exist in this case. And your $150,000 figure, if not totally pulled out of your ass, is probably based on statutory damages, which cannot be claimed together with actual damages (you have to pick one), and which I suspect are unavailable here, but perhaps they are, it depends. If the guy is at all serious, he needs to talk to a US copyright lawyer right now, lest his window close for getting decent damages. Assuming it hasn't closed already.
Besides, he could go after full penalties now, which is significantly more than 150 pounds.
If he does so in the US, then he may have difficulties doing so, since he'll have procedural hurdles to go through. It could be too late already, depending on the facts involved.
Besides which, who's to say you can't sue for copyright infringement in the small claims court?
That would be the United States. 28 USC 1338 gives exclusive original jurisdiction to the federal district courts in "any civil action arising under any Act of Congress relating to... copyrights." Meanwhile 17 USC 301 has preempted virtually all state copyright legislation, making the federal copyright system pretty much the only game in town. The United States has the power to do these things by virtue of the Congressional power to establish inferior federal courts (which is inclusive of regulating their jurisdiction), the copyright power, the supremecy clause that lets them override laws of the states that conflict with constitutional federal laws. The limits of these powers and the fifth amendment guarantee of due process don't prevent this; it isn't even arguably unconstitutional.
Given all of that, there are very, very few copyright cases that manage to be heard in state court. It only ever happens if 1) it has to do with a non-preempted state copyright law, of which there are very few, and 2) if the case only tangentally involves copyright but really is about something else, and that a copyright is involved has no bearing whatsoever on anything; it could just as easily be eggs, or wrenches, or something. And even then, state courts are often cautious and will kick the case out, feeling that it needs to go to federal court anyway.
Of course, that's all if you want to sue them in America -- which is a great place to sue people, we're very plaintiff-friendly, and people often try to get suits brought here to take advantage of our discovery rules, etc. If you want to sue them in the UK, then I have no idea how that works procedurally. But I can tell you that since the MPAA (which is not the same thing as its members) probably does little business there, and has few assets there, it probably would not be worthwhile, since you wouldn't be able to collect much, if anything, regardless of which court you went to.
OF course it might not matter much. While I can't be sure without knowing more of the facts in the case, I doubt that statutory damages would be available here, and there's simply little money to be had in the realm of actual damages and profits, since this software isn't worth a great deal.
But according to the MPAA itself, downloading films is stealing. If downloading films is "stealing," it stands to reason that downloading software is "stealing" too. Wonder how that would hold up in small claims court.
The euphemism they use for copyright infringement has no bearing on anything. How would it hold up in court? It would get you laughed right out of court.
Another suggested suing them in small claims court which is apparently much easier.
It might be, if it were even possible. You can't sue anyone for copyright infringement in small claims court. There is exclusive federal jurisdiction for copyright suits, which means you'd have to go to federal district court.
Equate software to music. Equate running softare or viewing a webpage as a "performance" in the legal sense.
First, why? What possible advantage would that get you? Second, that is not likely to work. Merely running software could only infringe the reproduction and perhaps derivative rights, but there's an exception under 117 which may well be applicable here. Viewing a webpage is pretty much reproduction only. Having a globally-accessible webpage could be considered a performance or display (depending on precisely what it consisted of) but the present caselaw leans toward distribution instead. But it could be a moot point anyway; this author didn't write the web pages at issue, he wrote the program used to write the web pages. Portions of the page are based on his work, but probably not enough, given the whittling-away effects that a decent lawyer could achieve by using things like merger and scenes a faire, to matter much.
Since the license costs about $100, calculate based on a 300% markup over a $35 average MPAA cd price. The sum will be punitive damages for theft, plus the 300% of what the MPAA sues for a song, plus the price of a "performance" multiplied by the number of visits to any of the blog's pages, based on the evidence of the MPAA's server logs which is must produce in court. Although this sounds over the top, it is simply using the same non-common-sensical strategy the MPAA is using in court, and I think a judge and jury might just see justice in that, or at least a reason not to throw the case out.
No, it sounds utterly moronic.
There are two ways to compute damages for copyright infringement suits. First, you can get actual damages and profits. This means you get money in the amount you were actually damaged (in this case a paltry sum, since the software was available so cheaply) and also in the amount of net profit realized by the defendant that is attributable to the infringment (Gross profits, and profits that are attributable to other sources don't qualify). Since this is MPAA's blog, there are likely to be no awardable profits. Maybe $1 as a token sum.
The other way is statutory damages, which range from $750 to $30,000 per work infringed, and can go down to $200 or up to $150,000, depending on certain factors. But you have to have registered your work within a certain time limit in order to be eligible for this, and although I don't know either way, I'd be willing to bet that this work wasn't registered within the time limits. That means these damages would not be available.
RIAA does bother to register their works, however, which is why they routinely ask for the maximum amount of statutory damages ($150,000 per work infringed) which can add up if you infringe on a lot of works.
The crap you're talking about is just that; made up crap without a basis in reality. You don't get to arbitrarily name figures and multiply them by whatever. And there isn't even any such thing as punative damages in copyright, so that's out the window too. RIAA has a solid basis for what they do, even if you don't like it and don't understand it. You don't.
I think this ought to net a nice award for the author.
The reality is that this is probably not worth suing over; the author would probably lose money or at best break even. The best strategy is probably to write a nasty letter and then ignore it. A victory wouldn't be hard to get, but wouldn't be worthwhile either.
Naturally, I forgot some, and remembered only moments after I posted.
13. To hell with Bayh-Dole: if an invention was developed wholly or partially with state or federal funding, then it should not be patentable. But patent-like disclosure should be required in order to get the funding. Taxpayers should not have to pay to have things invented and then pay again to patent holders in order to use the invention they funded the development of.
14. States' 11th amendment immunity should be left alone, but states should be barred from being granted, assigned, or licensing patents. Patents are an incentive, after all, but governments are meant to do what best serves their people, and can raise money by other means; they don't need patents as incentives, and shouldn't get to be involved with the system particularly. Ditto for the federal government and foreign governments, etc.
1. Congress should declare a moratorium on granting or maintaining patents in the software and business method fields. They should also have the PTO periodically advise them as to whether similar moratoria should be imposed in other fields, and whether these (or others that are imposed) should be lifted.
Remember, patents exist to encourage invention, disclosure, and bringing-to-market of inventions that otherwise would not be. However, there are other incentives for inventors to do those things besides patents. At the present time, in the two fields named, there appear to be a lot of strong incentives to invent, disclose, and bring to market the inventions in those fields. As far as I can tell, patents not only seem to be failing in encouraging these things for those fields, but they are probably discouraging inventors and producers. Perhaps this will change over time, which is why there should be expert advice on that. And perhaps other fields will turn out to be like this. But right now, I am willing to bet that the natural incentives that exist apart from patent incentives, (e.g. generosity, academic reputation, being first to market, etc.) will yield the greatest public good.
2. The courts should not so strongly assume a lack of invalidity; a preponderance of the evidence standard should be used instead of the clear and convincing evidence standard.
3. Giving so much power to the Federal Circuit was a mistake. We should go back to using the regular courts. This is because the possibility of circuit splits isn't a bad thing, it's a good thing; we get the chance to have several different rules on a subject which may then be considered by the Supreme Court. A lack of meaningful differing opinions means that there is a greater chance that we'll get stuck with one approach to patent law which is not necessarily best, but is merely prudential within a single circuit. Or to put it another way, having more ideas about patent law can't possibly be worse than having fewer.
4. Applications should be published in full immediately upon receipt by the PTO. Applicants should not get a choice to have trade secrets directly covering inventions which they seek to have patented, not for any period of time.
5. Furthermore, the best mode disclosure should be expanded to cover all modes known by the inventor, as well as assignees and licensees, during the entire lifetime of the patent. They could be independently patented if otherwise eligible, but they shouldn't get to be a secret.
6. The PTO should not be self-funding or seen as a revenue generator. Put all their income into the general fund, but fund them from the general fund and do so fairly generously.
7. Oppositions, et al that happen to involve already-examined prior art should be allowed if reasonable. The PTO needs to accept that sometimes their examiners miss things that are right in front of them.
8. The scope of prior art that the PTO looks at as a matter of course ought to be enlarged significantly.
9. Examiners ought to have an easier time of it, with more time to dedicate to patents that in their individual judgment warrant the attention.
10. Term lengths should be carefully looked at, and the possibility of variable term lengths for different fields (e.g. less time for mechanical inventions, more time for medical inventions) ought to be considered.
11. First to invent is important and needs to continue to be part of our system. Aside from that it's constitutionally mandated, it's really the only sensible way to do things.
12. The experimental use exception should be shored up, and a personal use exception would also probably be a good idea. A general purpose catch-all exception, similar to fair use in copyright, might also be a good idea, provided that like fair use it was also meant to provide exceptions where the patent law conflicted with patent policies.
That's about all I've got off the top of my head, but then I always found patents boring. I'm a copyright guy, really.
No, it applies to current patents. There are two ways in which this occurs. First, if someone improves upon a patented invention, they can independently patent the improvement. This applies even if they aren't they have nothing to do with the first patent. For example, Alice invents a chemical which she uses as furniture polish; she can patent the method for making the chemical, the chemical itself (however it is made), and the method of using it for polishing furniture. Later, Bob discovers another way to make the chemical, which is faster, cheaper, and easier, and that the chemical works well as a rocket fuel. He can patent the new method of making the chemical, and the method of using the chemical as rocket fuel. Of course, he can't do anything with his patents, in order to avoid infringing on the patent for the chemical that Alice has. And Alice can't use the new methods Bob invented, in order to avoid infringing on Bob's patents. The idea is that they'll come to an agreement of some kind. Otherwise, Bob has to wait for Alice's patents to expire.
The second way is that if someone invents something, gets a patent, and creates a market, then a second inventor will have an incentive to invent around the first patent, in order to get to the same market. Following the previous example, Bob can't directly use the chemical or methods that Alice invented, because of her patents. But if Bob instead had invented a distinct but similar chemical that was better and cheaper than Alice's -- something he would be encouraged to do so that he doesn't have to wait for Alice's patents to expire before he can compete with her -- then he would be set.
Both of these sorts of things happen all the time.
That would be a pain in the ass. There aren't any that close to the harbor. There used to be a Sam Goody in Quincy Market, but I think they're gone now.
XEROX is just barely hanging on there, and Xerox has to do a lot of work all the time just to avoid genericide. Personally, I wouldn't bet a penny on SUPERHERO having any distinctiveness. And the evidence gathering for that would probably be loads of fun.
That's true, it did reform copyright. But it reformed it so completely that there is a big break in copyright. The stationers' copyright died and pretty much all copyright since has been descended from or inspired by Anne, or other, later sources. This is why I did mention the stationers' copyright, but I didn't give it much credit, since it bears no real resemblance to what we think of as copyright, and didn't match the description of the earlier poster. Only the most dedicated of copyright historians even bothers to look past Anne, and the majority that ignore the pre-Anne regime don't usually suffer for doing so.
As for common law copyrights, there has never been very clear agreement or understanding about them. It's a very fuzzy concept, encompassing a lot of unrelated things, and fortunately is nearly moot now. While I don't mind stealing an idea or two from common law traditions, and I don't have a problem with common law generally, I think that we're all best off when copyright law is entirely statutory. Indeed, in this field I don't even care for secondary liability that isn't legislative in origin.
Now, now. You're invoking communism, but that's just a red herring. After all, if you believe in free, unregulated markets, then you must also reject copyright as a state-backed monopoly meant to eliminate a market in commodities and subsidize particular actors in the market. But that's pretty extraneous to this discussion as well. I'm not a communist, and AFAIK most people who like the GPL aren't communists, nor are most advocates of copyright reform, nor mere pirates. How about you address the issues and arguments that are actually part of this discussion, and you don't put up straw men that you have apparently pulled out of your ass.
Slashdot Mirror
No court would award fees of $5,000 per hour in a copyright case, even if the winning party actually paid that much. The law provides for a "reasonable" attorney fee, and that isn't reasonable.
Shut the hell up. As a copyright lawyer, I think that fee is entirely reasonable. Perhaps even too reasonable.
Basically, you propose a budget for a work. Then you solicit investment from individuals, which goes to a third party. If the amount of money you want is raised, it'll be doled out to you by the third party, which monitors your progress so that you deliver what you promised to create. Once you're done, the work is released to the investors and isn't copyrighted. If there are few, united investors, they can then charge admission to see it, etc. in order to recoup their investment. If there are many, disunited investors, then hopefully their investment was about the price of a DVD or movie ticket, since the work is effectively out there for everyone now.
Remember, that ultimately, movies make their money from box office, DVD, and PPV receipts, in a matter of weeks after release in each medium. The SPP is a method for cutting out the middleman of the studios, who want to make as much money as possible, for the middleman of a third party that just wants things to run efficiently but isn't due to make a gigantic profit either.
Are you familiar with the Street Performer Protocol? It would be a good mechanism for doing this.
But as long as there exist artistic works that would not be made but for some kind of copyright, we're better off having copyright laws.
No, that's not true. It's halfway there, but you left out some essential bits.
You're failing to look at the entire issue. While it is certainly good to have more works created than fewer, it is also good to have fewer restrictions as to works than more. If we must shoulder the burden of more restrictions (a detriment) in order to have more works created (a benefit) then the issue is which is greater: the benefit or the detriment?
So long as the benefit of more works, which were caused to have been created by the incentive of copyright, outweighs the detriment of having that copyright, then having that copyright is good. But if the detriment of copyright outweighs the benefit of having more works created, then we're better off not having that copyright. Note also that the incentivizing effect of more copyright is not constant; a copyright that had a duration of one year has more of an incentivizing effect than the last year of a copyright that lasts one hundred years; this is because the economic value of a work tends to be realized sooner than later. Detrimental effects of copyright don't tend to die off so quickly, however. Further, it is actually possible for copyright to disincentivize the creation of works if it becomes expansive enough to enable significant rent-seeking behavior by existing copyright holders who don't appreciate competition.
So if you want to be accurate, you ought to instead say:
But as long as there exist artistic works that would not be made but for some kind of copyright, and the benefit of having those works is greater than the detriment of the copyright that it took to get them created, we're better off having that much copyright, no more, no less.
How much of a work is used is one of several factors in a fair use analysis, but it's entirely possible to use all of a work and still have it be a fair use. E.g. when time shifting or space shifting is a fair use, it's a use that uses the entire work in question.
Without trying the software myself I'd expect it would take the organization maybe $5K to build similar functionality that meets all their needs, it is actually not so easy to find exactly what you want.
Maybe. It depends on what they were doing with it, but I expect that there are plenty of adequate programs already on the market that would have sufficed. They happened to choose this particular one, but they'd want to show that there were alternatives. Of course, I don't know what their needs are, and I know nothing about blogging software, so it's unclear.
I do admit a feeling that software designed to make work easier or that enables activities like blog PR does provide value continually when run that is separable from the content of the posts themselves.
Sure; if it saves time as compared to the most likely substitute, then use the time delta to compute their monetary savings, which could be factored into net profits, as this is a reduction of costs.
It is my guess that a business model for private software developers to sell on the Internet source code is not greatly protected by the law, or if it is then most developers don't know how to take advantage of it.
No, it is protected just as much as anything else. What I'm saying is that in most situations, actual damages and profits don't yield very large amounts. Sure, if someone infringes on your screenplay and makes a movie that grosses hundreds of millions of dollars, then it's the way to go. But if one person pirates a copy of a CD, it's nearly pointless. This situation is more like the latter than the former. That's part of the reason why statutory damages are desirable for authors, but you have to do certain things in order to be eligible for them. I don't know if this author has done these things, or still has an opportunity to do these things (there's a time limit). But if he can, he probably ought to.
I do hope the author has a lawyer and is able to get paid for his work.
I agree.
the remedy you are advocating is a DMCA takedown notice
No, it isn't. All I was doing was correcting someone's misunderstanding of the DMCA.
However, on that subject:
- is likely not be subject to US jurisdiction ? (hint, the author has a UK website)
and where the loss is ~ 25 pounds ?
Let's remember that the MPAA is subject to the DMCA, and that foreign authors are just as able to wield the DMCA against infringers in the US as anyone else. In this case it is the MPAA who is arguably the infringer. The amount of the loss is irrelevant. Frankly, the main reason I can imagine as to why the DMCA wouldn't really be of interest here -- assuming the site hadn't been pulled down anyway -- is that while the software used to generate the site is the author's work, it is possible that the site itself is not.
But it's pretty moot, and like I said, I never advocated using the DMCA in this matter. I only pointed out that you don't have to violate any of the prohibitions of the DMCA in order for a 512 takedown notice to be sent.
No, the potential plaintiff is in England. The defendant -- and more importantly, the vast majority, if not all, of the defendant's assets -- are in the US. If a suit were brought, I'd be surprised if it wasn't in US courts, pursuant to US law.
However I think some people might be interested in assigning a positive cash value to a page view, if the page is generated using stolen software, and in calculating what the log file says that sum is.
Which is great, but not really feasible. In a copyright suit, you can either sue for a) actual damages and profits, or b) statutory damages. If you are using the former theory, then the only way that you can get paid per page view where each page is generated in some infringing manner is if you can show that you are actually damaged by each page view. And it can't be just any kind of damage, it has to be a properly attributable damage. You end up having to calculate how many users of the total number of users at issue would've given money to the plaintiff but didn't because of this. The number of users is probably less than the number of page views. The number of users who, but for the removal of the links, would've given money to the plaintiff is probably far, far less. What you don't get to do, if you're suing for actual damages and profits, is sue for purely hypothetical damages. Similarly, the profits need to be the profits attributable to the infringement. If MPAA can show that some of their profits are attributable to something else, anything else, then those are excluded. I doubt that they made any profits attributable to this infringment, and so a nominal figure of a dollar for the profits portion of the damages calculation seems likely to me (not knowing all the facts, I admit). The actual damages could be more, but probably not very much, given how low click-through rates are, etc.
It certainly was worth more than $1 to the company to put up a blog.
Maybe, but it's irrelevant, unless you can work it into actual damages and profits. You could argue that they profited by using this software instead of something more time-consuming and difficult to install, but they could counter if there's something quicker and easier that is otherwise an acceptable substitute for what they were doing. That's because the profits at issue are net profits, not gross profits; infringers are allowed to deduct costs from that part of the calculation.
Your suggestion that software is cheap at 150 pounds is also incredible.
Oh? The one amount of actual damages he knows he can get is the cost of the software. Everything beyond that depends on factors outside his control -- how many people looked at the blog on the MPAA site, of those, how many would've gone to his site, of those, how many would've become his customers, of those, how much would they have paid, etc. -- and strikes me as being likely to result in a rather small amount. The amount of MPAA profits attributable to their infringement seems to me to be so small as to make a token dollar seem reasonable.
Given that the costs of going forward are likely to far outweigh a mere £150, I'd say that there is a very real chance that if he went to court he would easily win, but end up poorer than when he began. It might be a moral victory, but it's hard on the wallet, and if I were him, and I didn't have any better alternatives to that outcome, I wouldn't bother. A nasty letter is cheap to send, but beyond that it would be self-defeating.
Of course, I don't know the precise facts, and a lot hinges on them. Perhaps he could end up covering his costs and making a substantial sum in the process. I don't know. The best thing this guy can do is to find out without delay.
Is this reasoning based on statutory damages only being applicable to music or movies under U.S. copyright law?
No, statutory damages is available for software and for web pages, but there are procedural requirements to be eligible for this. If this guy is eligible for them, then they are by far his best bet. But I'd have some concerns over that, and it seems likely that he will need to act immediately lest he lose the opportunity to get statutory damages.
There is also the issue of this involving a British company. The
Who the hell cares? It's a take down notice, which falls under 17 USC 512 -- which was part of the DMCA. It's used for any kind of copyright infringement. The DMCA did a lot of things, it's not all about anticircumvention, dumbass.
No, not really.
Stealing a copy would deprive the owner of the copy of that copy. Making a copy is quite different, and would deprive the owner of the original copy of nothing. The earlier poster was not saying substantially the same thing as you were.
It's not that strict copyright law is unenforceable, it's the fact that the culture overwhelmingly looks at copyright as a minor violation.
Which is why the best thing that we could do would be to make it so. Copyright should follow societal norms, not try to alter them. It's not important enough a subject to have the government dictate norms to us over. It's more like Prohibition than Desegregation.
No no no. It has nothing to do with the cost of the albu^H^H^H^Hsoftware. You see, since they didn't pay initially, they should have had a link. And if they had placed a link, then there would have been more users of Forest Blog, and thus they are liable for each user who did not use Forest Blog because they were missing the link. Therefore their liability should be $97 times everyone who has visited mpaa.org, and thus was a lost customer, plus punitive damages of $150,000 per page that should have had a link.
No no no. It has nothing to do with your made-up crap. If you want to argue that he was actually damaged by the failure to provide the link, then they are only liable for each user who did not use the software because of the missing link, and who otherwise would have used the software. Unless this is spectacularly popular software, not all users who see the link are going to use the software. So you determine which, if any, of the users, who went to the site would have used the software had the link been there. This will be some percentage of the users, perhaps a low percentage. You don't get to assume that every single one is a lost customer. That isn't how it works. Additionally, it's not every user that went to the entire domain, it's only the ones that went to the pages where they'd've seen the link.
So really, we're not looking at all mpaa.org users. We're looking at a rather tiny fraction of them, since those would be the only ones for which there'd be actual damages. Not made-up damages. You don't get made-up damages in court.
As for punitive damages, they don't exist in this case. And your $150,000 figure, if not totally pulled out of your ass, is probably based on statutory damages, which cannot be claimed together with actual damages (you have to pick one), and which I suspect are unavailable here, but perhaps they are, it depends. If the guy is at all serious, he needs to talk to a US copyright lawyer right now, lest his window close for getting decent damages. Assuming it hasn't closed already.
Besides, he could go after full penalties now, which is significantly more than 150 pounds.
If he does so in the US, then he may have difficulties doing so, since he'll have procedural hurdles to go through. It could be too late already, depending on the facts involved.
Besides which, who's to say you can't sue for copyright infringement in the small claims court?
... copyrights." Meanwhile 17 USC 301 has preempted virtually all state copyright legislation, making the federal copyright system pretty much the only game in town. The United States has the power to do these things by virtue of the Congressional power to establish inferior federal courts (which is inclusive of regulating their jurisdiction), the copyright power, the supremecy clause that lets them override laws of the states that conflict with constitutional federal laws. The limits of these powers and the fifth amendment guarantee of due process don't prevent this; it isn't even arguably unconstitutional.
That would be the United States. 28 USC 1338 gives exclusive original jurisdiction to the federal district courts in "any civil action arising under any Act of Congress relating to
Given all of that, there are very, very few copyright cases that manage to be heard in state court. It only ever happens if 1) it has to do with a non-preempted state copyright law, of which there are very few, and 2) if the case only tangentally involves copyright but really is about something else, and that a copyright is involved has no bearing whatsoever on anything; it could just as easily be eggs, or wrenches, or something. And even then, state courts are often cautious and will kick the case out, feeling that it needs to go to federal court anyway.
Of course, that's all if you want to sue them in America -- which is a great place to sue people, we're very plaintiff-friendly, and people often try to get suits brought here to take advantage of our discovery rules, etc. If you want to sue them in the UK, then I have no idea how that works procedurally. But I can tell you that since the MPAA (which is not the same thing as its members) probably does little business there, and has few assets there, it probably would not be worthwhile, since you wouldn't be able to collect much, if anything, regardless of which court you went to.
OF course it might not matter much. While I can't be sure without knowing more of the facts in the case, I doubt that statutory damages would be available here, and there's simply little money to be had in the realm of actual damages and profits, since this software isn't worth a great deal.
But according to the MPAA itself, downloading films is stealing. If downloading films is "stealing," it stands to reason that downloading software is "stealing" too. Wonder how that would hold up in small claims court.
The euphemism they use for copyright infringement has no bearing on anything. How would it hold up in court? It would get you laughed right out of court.
Another suggested suing them in small claims court which is apparently much easier.
It might be, if it were even possible. You can't sue anyone for copyright infringement in small claims court. There is exclusive federal jurisdiction for copyright suits, which means you'd have to go to federal district court.
Equate software to music. Equate running softare or viewing a webpage as a "performance" in the legal sense.
First, why? What possible advantage would that get you? Second, that is not likely to work. Merely running software could only infringe the reproduction and perhaps derivative rights, but there's an exception under 117 which may well be applicable here. Viewing a webpage is pretty much reproduction only. Having a globally-accessible webpage could be considered a performance or display (depending on precisely what it consisted of) but the present caselaw leans toward distribution instead. But it could be a moot point anyway; this author didn't write the web pages at issue, he wrote the program used to write the web pages. Portions of the page are based on his work, but probably not enough, given the whittling-away effects that a decent lawyer could achieve by using things like merger and scenes a faire, to matter much.
Since the license costs about $100, calculate based on a 300% markup over a $35 average MPAA cd price. The sum will be punitive damages for theft, plus the 300% of what the MPAA sues for a song, plus the price of a "performance" multiplied by the number of visits to any of the blog's pages, based on the evidence of the MPAA's server logs which is must produce in court. Although this sounds over the top, it is simply using the same non-common-sensical strategy the MPAA is using in court, and I think a judge and jury might just see justice in that, or at least a reason not to throw the case out.
No, it sounds utterly moronic.
There are two ways to compute damages for copyright infringement suits. First, you can get actual damages and profits. This means you get money in the amount you were actually damaged (in this case a paltry sum, since the software was available so cheaply) and also in the amount of net profit realized by the defendant that is attributable to the infringment (Gross profits, and profits that are attributable to other sources don't qualify). Since this is MPAA's blog, there are likely to be no awardable profits. Maybe $1 as a token sum.
The other way is statutory damages, which range from $750 to $30,000 per work infringed, and can go down to $200 or up to $150,000, depending on certain factors. But you have to have registered your work within a certain time limit in order to be eligible for this, and although I don't know either way, I'd be willing to bet that this work wasn't registered within the time limits. That means these damages would not be available.
RIAA does bother to register their works, however, which is why they routinely ask for the maximum amount of statutory damages ($150,000 per work infringed) which can add up if you infringe on a lot of works.
The crap you're talking about is just that; made up crap without a basis in reality. You don't get to arbitrarily name figures and multiply them by whatever. And there isn't even any such thing as punative damages in copyright, so that's out the window too. RIAA has a solid basis for what they do, even if you don't like it and don't understand it. You don't.
I think this ought to net a nice award for the author.
The reality is that this is probably not worth suing over; the author would probably lose money or at best break even. The best strategy is probably to write a nasty letter and then ignore it. A victory wouldn't be hard to get, but wouldn't be worthwhile either.
Naturally, I forgot some, and remembered only moments after I posted.
13. To hell with Bayh-Dole: if an invention was developed wholly or partially with state or federal funding, then it should not be patentable. But patent-like disclosure should be required in order to get the funding. Taxpayers should not have to pay to have things invented and then pay again to patent holders in order to use the invention they funded the development of.
14. States' 11th amendment immunity should be left alone, but states should be barred from being granted, assigned, or licensing patents. Patents are an incentive, after all, but governments are meant to do what best serves their people, and can raise money by other means; they don't need patents as incentives, and shouldn't get to be involved with the system particularly. Ditto for the federal government and foreign governments, etc.
1. Congress should declare a moratorium on granting or maintaining patents in the software and business method fields. They should also have the PTO periodically advise them as to whether similar moratoria should be imposed in other fields, and whether these (or others that are imposed) should be lifted.
Remember, patents exist to encourage invention, disclosure, and bringing-to-market of inventions that otherwise would not be. However, there are other incentives for inventors to do those things besides patents. At the present time, in the two fields named, there appear to be a lot of strong incentives to invent, disclose, and bring to market the inventions in those fields. As far as I can tell, patents not only seem to be failing in encouraging these things for those fields, but they are probably discouraging inventors and producers. Perhaps this will change over time, which is why there should be expert advice on that. And perhaps other fields will turn out to be like this. But right now, I am willing to bet that the natural incentives that exist apart from patent incentives, (e.g. generosity, academic reputation, being first to market, etc.) will yield the greatest public good.
2. The courts should not so strongly assume a lack of invalidity; a preponderance of the evidence standard should be used instead of the clear and convincing evidence standard.
3. Giving so much power to the Federal Circuit was a mistake. We should go back to using the regular courts. This is because the possibility of circuit splits isn't a bad thing, it's a good thing; we get the chance to have several different rules on a subject which may then be considered by the Supreme Court. A lack of meaningful differing opinions means that there is a greater chance that we'll get stuck with one approach to patent law which is not necessarily best, but is merely prudential within a single circuit. Or to put it another way, having more ideas about patent law can't possibly be worse than having fewer.
4. Applications should be published in full immediately upon receipt by the PTO. Applicants should not get a choice to have trade secrets directly covering inventions which they seek to have patented, not for any period of time.
5. Furthermore, the best mode disclosure should be expanded to cover all modes known by the inventor, as well as assignees and licensees, during the entire lifetime of the patent. They could be independently patented if otherwise eligible, but they shouldn't get to be a secret.
6. The PTO should not be self-funding or seen as a revenue generator. Put all their income into the general fund, but fund them from the general fund and do so fairly generously.
7. Oppositions, et al that happen to involve already-examined prior art should be allowed if reasonable. The PTO needs to accept that sometimes their examiners miss things that are right in front of them.
8. The scope of prior art that the PTO looks at as a matter of course ought to be enlarged significantly.
9. Examiners ought to have an easier time of it, with more time to dedicate to patents that in their individual judgment warrant the attention.
10. Term lengths should be carefully looked at, and the possibility of variable term lengths for different fields (e.g. less time for mechanical inventions, more time for medical inventions) ought to be considered.
11. First to invent is important and needs to continue to be part of our system. Aside from that it's constitutionally mandated, it's really the only sensible way to do things.
12. The experimental use exception should be shored up, and a personal use exception would also probably be a good idea. A general purpose catch-all exception, similar to fair use in copyright, might also be a good idea, provided that like fair use it was also meant to provide exceptions where the patent law conflicted with patent policies.
That's about all I've got off the top of my head, but then I always found patents boring. I'm a copyright guy, really.
No, it applies to current patents. There are two ways in which this occurs. First, if someone improves upon a patented invention, they can independently patent the improvement. This applies even if they aren't they have nothing to do with the first patent. For example, Alice invents a chemical which she uses as furniture polish; she can patent the method for making the chemical, the chemical itself (however it is made), and the method of using it for polishing furniture. Later, Bob discovers another way to make the chemical, which is faster, cheaper, and easier, and that the chemical works well as a rocket fuel. He can patent the new method of making the chemical, and the method of using the chemical as rocket fuel. Of course, he can't do anything with his patents, in order to avoid infringing on the patent for the chemical that Alice has. And Alice can't use the new methods Bob invented, in order to avoid infringing on Bob's patents. The idea is that they'll come to an agreement of some kind. Otherwise, Bob has to wait for Alice's patents to expire.
The second way is that if someone invents something, gets a patent, and creates a market, then a second inventor will have an incentive to invent around the first patent, in order to get to the same market. Following the previous example, Bob can't directly use the chemical or methods that Alice invented, because of her patents. But if Bob instead had invented a distinct but similar chemical that was better and cheaper than Alice's -- something he would be encouraged to do so that he doesn't have to wait for Alice's patents to expire before he can compete with her -- then he would be set.
Both of these sorts of things happen all the time.
That would be a pain in the ass. There aren't any that close to the harbor. There used to be a Sam Goody in Quincy Market, but I think they're gone now.
XEROX is just barely hanging on there, and Xerox has to do a lot of work all the time just to avoid genericide. Personally, I wouldn't bet a penny on SUPERHERO having any distinctiveness. And the evidence gathering for that would probably be loads of fun.
I bet he wasn't a captain either.
That's true, it did reform copyright. But it reformed it so completely that there is a big break in copyright. The stationers' copyright died and pretty much all copyright since has been descended from or inspired by Anne, or other, later sources. This is why I did mention the stationers' copyright, but I didn't give it much credit, since it bears no real resemblance to what we think of as copyright, and didn't match the description of the earlier poster. Only the most dedicated of copyright historians even bothers to look past Anne, and the majority that ignore the pre-Anne regime don't usually suffer for doing so.
As for common law copyrights, there has never been very clear agreement or understanding about them. It's a very fuzzy concept, encompassing a lot of unrelated things, and fortunately is nearly moot now. While I don't mind stealing an idea or two from common law traditions, and I don't have a problem with common law generally, I think that we're all best off when copyright law is entirely statutory. Indeed, in this field I don't even care for secondary liability that isn't legislative in origin.
Now, now. You're invoking communism, but that's just a red herring. After all, if you believe in free, unregulated markets, then you must also reject copyright as a state-backed monopoly meant to eliminate a market in commodities and subsidize particular actors in the market. But that's pretty extraneous to this discussion as well. I'm not a communist, and AFAIK most people who like the GPL aren't communists, nor are most advocates of copyright reform, nor mere pirates. How about you address the issues and arguments that are actually part of this discussion, and you don't put up straw men that you have apparently pulled out of your ass.