If you guys reject copyright here, then you have to reject the GPL as well, since the GPL relies on copyright.
No we don't.
For example, we could say that copyright doesn't apply to individuals making or distributing copies for personal use, but that it does apply to commercial activities and to non-natural persons (e.g. corporate entities). While this would arguably permit people to ignore the GPL in some instances, they likely wouldn't bother; after all, copyright law is actually pretty unfavorable to the GPL now (e.g. you can make changes to software under 17 USC 117 without having to agree to the GPL, so long as you qualify for that exception), and it doesn't seem to have had much of an effect.
While some people do reject the entire notion of copyright, I think that more people merely reject the present implementation. Since there are relatively few boundaries on what copyright laws Congress may enact, almost anything is on the table, including massively scaling back copyright but still preserving some portions of it. The important thing is ensuring that whatever implementation of copyright laws we have serve the public interest better than any alternative implementation; it's not important to serve the interests of authors, however, or to not reduce or alter the laws, save for how those might best serve the public interest.
So don't think of it as an either/or kind of thing. Hell, you could have copyright laws that specifically singled out and preserved the GPL, if that's what we wanted.
Except for the writing once you hit seasons 10 and later, that is. I might be willing to get a 'best of' DVD with the small number of good episodes from the more recent seasons on it, but it'll never compare to the old days when nearly every episode was a winner. Sometimes even the clip shows were good.
Of course, Shakespeare died in 1616, and the first English copyright laws that had anything to do with authors (as opposed to stationer's copyrights which had more to do with publishers and censorship) didn't arise until 1710. And I don't know where you're getting the idea that there were perpetual copyrights as a fairly ordinary matter. So before you point out the mote in the previous poster's eye, perhaps you should attend to the beam in your own?
Which doesn't change the fact that the courts are in agreement that downloading can be illegal in the US. And that numerous people have been sued on the basis that they are liable for someone else having downloaded, and those suits have been successful.
The reason that downloaders usually are ignored is simply tactical; pursuing uploaders is a better use of resources, and pursuing network providers (e.g. torrent trackers, software developers) is an even better use of resources.
Don't think that a downloader can't be sued. It was only a few years ago that they didn't sue any of the users at all.
Two reasons. First, the law is pretty broad, defining income as all income, however derived. They didn't want to leave much out. Second, more suckers will play the lottery if the number is the bigger pre-tax amount than the smaller post-tax amount. So they'd rather do the former. Of course the lottery is a tax on being bad at math anyway.
The problem is that copyright is a useful tool to protect privacy also.
But it shouldn't be. The policy aim of copyright is to promote the progress of knowledge and public learning. That's completely the opposite of protecting privacy. It's part of the reason that copyright should only apply to published works or works which are to be published soon; unpublished works don't meaningfully contribute to the public, and aren't worth providing costly incentives for.
If you want to protect your privacy, then that's fine, and I don't have a problem with that in a general sense, but it's important to have a separate set of privacy laws for that. This is partially so that they can be fine-tuned for privacy aims, rather than the publication aims that copyright must be fine-tuned for. But also because there is plenty of private information that isn't copyrightable. You see, you cannot copyright facts. And you often cannot copyright compilations of facts, due to a lack of creativity in choosing and arranging those facts. (E.g. all facts about you is an uncreative selection; alphabetical or chronological arrangement is also uncreative) So if you want to keep people from getting your medical history, or credit card numbers, or so on, then copyright law will not help you one bit. And as creativity is a constitutional requirement, that's not going to change.
So please, don't support our present copyright laws for privacy reasons. Support better, more minimal copyright laws, and also support privacy laws. But don't bother trying to combine them; it won't work, it won't satisfy anyone, and we'll both be left upset.
Your example is a harsh reminder that ignorance is usually no defense for breaking the law.
Technically, that's that ignorance of the law is no defense for breaking the law. Ignorance to certain facts -- at least under the right circumstances -- can be a viable defense at times.
To take it a step further; if the person sending you the "mysterious link" was law enforcement would it then be some form of entrapment?
Wouldn't matter. Criminal infringement does require intent. I've been talking about civil infringement, which is much more common.
Or if it was the RIAA?
Entrapment wouldn't really work here, but there's a good equitable argument. You don't get to manufacture your own defendants, and that's basically what they'd be doing.
I mean what if it was something that claimed to be free, legal, too-good-to-be-true, but then it's not?
Like AllOfMP3.com, which AFAIK isn't a sting, or some of the torrent sites a couple of years ago, which became stings in order to save the asses of the site operators? I wouldn't worry about stings so much; there's plenty of things on the net that are too good to be true and aren't. Indeed, as a rule of thumb, I'd tell you that if something does look too good to be true, it probably isn't, and you should be wary of it.
Care to explain? Maybe some linkage, or perhaps an anecdotal example would help to clarify what you mean.
Until the 1976 Copyright Act, published materials that were not formally registered with the Copyright Office (or other bodies, if you go back far enough), were automatically in the public domain. Many unpublished works were as well. And now, after the 1976 Act, unpublished, unregistered works that were created before 1978 and not published by 2003 also automatically entered the public domain. So it's not as though we have to grant copyrights to everything, or something.
But the crappy laws we have these days, which do indiscriminately grant copyrights pretty clearly are not only not benefiting the public (which wants 1) works to be created and published, and; 2) works to be in the public domain as soon as possible and to be minimally protected by copyright if at all), but they aren't even an incentive to authors to begin with. (e.g. architectural works, overly long terms, giving works the full measure of protection without any indication by the author that it is desired)
We can do pretty much anything we want with copyright. It has to provide a public benefit, as described above. It should provide the greatest possible benefit. It has to have limited terms, it has to only protect original works of authorship, and the rights have to vest in the author. So long as these requirements can be met, copyright can be pretty much anything. The current system is no good, though, so at least we know what it shouldn't be.
Let me posit this though: what if I decide that all of my love notes over the years constitute a publishable, marketable product? Since I didn't write them initially to publish have I lost my right to do so?
I think that we ought to take a page from patent law and the old common law copyright, which is pretty closely related to copyright law, in that they use similar means to achieve similar ends. If you're still in the process of creating a work, then you should have some limited rights to prevent people from pirating the manuscript, as it were, but it shouldn't be enough protection that an author would actively want to be at this level of protection if he could avoid it. Otherwise, if you abandon the work in progress, you get one year, and then you lose your rights in it and your eligibility for a registered copyright if you haven't registered it already. If you publish the work (inclusive of publicly performing or displaying it), then you get one year to register before your unregistered rights expire. The whole point of the system should be to weed out authors who are not motivated by the commercial benefits which are the only thing a copyright is good for. Hobbyists shouldn't get copyrights unless they're transitioning over to being professionals; it's not an incentive for hobbyists, who would have done the same work anyway. (It's analogous to paying someone for painting your house after they painted it for free; the charity on both sides is admirable, but it's no way to run a railroad) Once the work is registered, the full measure of protections open up, copies are deposited with the Library of Congress, and you need only renew the copyright periodically (say, every year or two) so that your continuing interest can be judged; fail to renew, and we can safely say that you don't care about the copyright anymore, so the work enters the public domain before the maximum possible term would run through. (Which also is how we used to do things, though with longer terms)
So in your case, you were not inspired by copyright in writing the notes. And while it'd be nice to get them published, which is desirable, it's also nice to not grant copyrights excessively. Often, fewer works but more freedom is more valuable than more works and less freedom. Given that you probably will not have competition for your love letters -- there's so many authors that it's a publisher's market -- you may as well publish it as a public domain work. If there is any money to be mad
Copyright can NOT involve exchange of money for protection.
Yes it can, and in fact, it traditionally has.
When you write something, anything really (that's not immune to copyright such as a recipe), it's copyrighted to you.
Why should that be true? I think that it would be a bad idea to do that, and again, that's a pretty new idea which has been having a lot of predictably bad results.
would it be OK for someone to break into my computer and start distributing my private records or love notes without my permission?
From a perspective of copyright, as opposed to an invasion of privacy? Yes, it would generally be ok. If you could show that you had only recently written them, and that they were copyrightable -- which would exclude many private records, such as birth certificates you didn't write, or ledgers of accounts, which aren't creative as a rule -- and you could show that you were working on getting them published in the near future under the copyright system, then some degree of protection would be appropriate; we don't want people pirating manuscripts, after all. OTOH, if you were not going to publish, then you should not get a copyright. Copyright is meant to encourage authors to create and publish works, and if you weren't going to do that, then why should the incentive be wasted upon you?
Copyright is not a substitute for privacy laws, and you're making a big mistake if you think otherwise.
They very probably could have used the designs and names, and found that the owners had no real interest in defending their rights, since they make a lot more money selling planes than licencing to games companies, but they can't be sure of that.
No, what I'm saying is that they could be pretty sure, if they talked with their lawyers, that the owners have no rights at all; whether or not they want to defend those rights is irrelevant if they haven't got them to begin with. It's like if I said that I owned everything that Shakespeare wrote. Would you give up just because I made an outrageous claim, or would you at least check into it before simply taking it at face value?
Neither should require a lot of money, but both should require some money. Copyrights and patents are economic incentives; they are only useful to authors who plan to make money from their work, or inventors who plan to make money from their invention. Authors or inventors who are motivated to do the same work without the incentive of copyrights or patents should not get them, as they'd be superfluous and harmful to the public without any public benefit. Requiring some small hurdle to be cleared by the rights claimant is a good way of finding out whether or not they care, and thus whether or not they were incentivized. If someone can't be bothered to fill out the paperwork and pay a token fee then the public can't be bothered with giving them unasked for rights.
What rights? The applicable patents, if any, on an Avenger would've expired ages ago, the shape, appearance, and performance characteristics aren't copyrightable or trademarkable due to the respective utility doctrines of those bodies of law, there's no trade secrets involved, and the name is likely not trademarkable either since they don't make and sell them anymore and even if it was, it's a nominative use.
For new planes, I could see patents and trademarks covering certain aspects of it (though utility is just going to keep on killing copyrights in this sphere as to computer simulation games), but for old ones? I'd love to know just what they're hanging their hat on.
No, it's my fault, I wasn't being precise in my earlier post. Direct infringement is a strict liability offense. But some forms of indirect infringement -- i.e. contributory infringement and inducement -- do require some mens rea. In the case of contributory infringement, the contributory infringer must have actual or constructive knowledge of the infringement at the time of his contribution. In the case of inducement, it seems that intent is required, though it's new law and is not all that clear yet. However, in the case of vicarious infringement, the third form of indirect infringement, the vicarious infringer need not have any mens rea with regard to the infringement.
So for your own infringements, intent is not required. But for your involvement in other peoples' infringements, some manner of intent or knowledge may be required, depending on precisely what your involvement and relationship with the other people was.
In the context of the earlier post, however, my point was valid. The earlier post said:
If someone adds your IP to a swarm by sending you a mysterious link using a URL shrinking site, how could you possibly have intent to break a law? IANAL, but copyright infringement must require intent, no?
And in that case, you're looking at direct infringement, since (presumably) you have to have followed the link in order to be added to the swarm, and that's something you did, rather than something someone else did. That you didn't know what would happen isn't relevant in that case, nor is the fact that someone else sent you the link in the first place.
I thought court cases involving copyright law was based on "reasonable doubt",
Only in a criminal copyright infringement case, and those are pretty rare. Ordinary copyright infringement cases use a balance of the probabilities standard, which is a lot lower.
It certainly sounds reasonable that being on a torrent means there is intent on sharing bits in the torrent.
And again, while intent is important in a criminal copyright infringement case, it is irrelevant in a civil copyright infringement case. First, because intent isn't part of the offense; accidental infringement is just as infringing as deliberate infringement. Second, because there's no such thing as intent to infringe; either you have infringed or you have not, and only the latter can give rise to a lawsuit. The only way that intent matters in a civil copyright infringement suit is in calculating statutory damages.
In a criminal trial, a jury must find a defendant guilty beyond a reasonable doubt. But in a civil trial, which is what 99.44% of all copyright infringement suits are, a jury need only find a defendant liable on the balance of the probabilities. It is a much, much lower standard.
A good example would be the criminal and civil trials of OJ Simpson. In his criminal trial, he was able to cause the jury to have a reasonable doubt, and so was found not guilty. But a reasonable doubt is not sufficient in a civil suit, and so a jury did find him liable in his civil trial. To avoid that fate, he would have had to show that he probably didn't do it, rather than what he did show which was merely that he reasonably possibly didn't do it.
In rough mathematical terms, think of the criminal standard for the prosecution as being 99%. All the defendant has to do is show a 2% chance that it wasn't him, and he gets off the hook. But the civil standard for a plaintiff is 51%. The same 2% argument to introduce a reasonable doubt is pointless. Even a 49% argument by the defendant won't suffice.
This is why I see little value in leaving open WAPs as a legal strategy. I don't think it will help much, if at all.
So? They determine that someone was infringing from a particular IP address. They can't tell that someone was using a WAP or not. The WAP thing is merely suggested as a way to have many people on the same IP address to have some kind of plausible deniability. The problem is that plausible deniability isn't really all that helpful.
However, this has no bearing on direct infringement.
Leaving a WAP open for anyone to use is not a viable way to defend yourself from infringement suits concerning your direct infringement (as opposed to indirect infringement, which is what the court was talking about). This is because in civil copyright suits there is no such thing as 'beyond a reasonable doubt.' The standard of proof is 'on the balance of probabilities,' i.e. whatever is most likely (even if only 51% likely as compared to 49% likely), is what happened.
In fact, in order to use the open WAP to help yourself, you'd have to prove that someone else probably is the infringer, and not you. The plaintiff can get a lot of help from the fact that you, as the owner of the WAP, a person who is very often in its range, and probably a frequent Internet user, probably do use it the most and probably are the infringer. It's tough for you to argue that someone else did the deed, especially if you don't have anything to point to other than that it's open. In fact, just because it's open doesn't even mean anyone else ever uses it.
Oh, I see -- the cash payment is viewed as a deposit.
You could look at it like that, though I wouldn't necessarily use that precise wording.
This seems a violation of common-law sale
Who has that? The law of sales here is governed by the UCC.
particularly the doctrine of first sale
No, not really. First sale is only a limitation on how copyrights may be used. It doesn't have any impact -- at least, given the current precedents -- on how contracts and terms of sale may be used. Thus Alice cannot order Bob, using the power of her copyright, to not resell a book she sold to him. But Alice can condition her original sale of the book to Bob on his agreement to a contract that prohibits resale.
You could make a decent policy argument against this, but AFAIK no one has managed to yet.
What happens if the purchaser resells the software without installing it? How could a subsequent buyer get a refund?
Well, there was one precedent which supported the idea that a non-using purchaser is only an intermediary and isn't bound by the terms in the box so long as he doesn't open the box. This would tend to indicate that the later buyer can get a refund, but it's unclear as to from whom. But IIRC, there was another case to the opposite, and if you follow the ProCD logic then the latter is more likely correct.
From UCITA on
UCITA is pretty dead. Two states adopted it, several others have anti-UCITA laws to defeat it, and no one is looking at it any more.
Well, that's not how it works in the US, that's for sure.
In the US, the only architectural works that are copyrightable are those created on or after December 1, 1990 (whether in the form of plans or as a building), and those created but not published or constructed before that date provided that they were published or constructed before December 31, 2002. This means that no architectural work embodied in an actual building built before December 1, 1990 (e.g. the Empire State Building) is copyrightable.
If a building that embodies a copyrighted architectural work is located in or visible from a public place, then the copyright on the architectural work doesn't cover the making of pictorial representations of it (e.g. photographs, paintings), nor the distribution or public display of those representations. Whether it's commercial or not is irrelevant.
If there is another copyrightable work involved -- e.g. a mural or sculpture on the building -- then there is an initial question as to whether or not it's part of the architectural work. But assuming that it is not, and that the 17 USC 120 exception above wouldn't apply to the second work being photographed, there is still a very strong fair use argument in favor of the photographer. It's stronger if the photograph isn't commercial, but it's entirely possible and commonplace to have commercial fair use.
As for trademarks being relevant, I think that there is virtually no chance of that whatsoever. You don't infringe on a trademark merely by reproducing a trademark. It takes a lot more than that. Further, it'd be tough to get a trademark on an entire building and all the depictions thereof. And given that where there are policy conflicts between trademarks and copyrights, copyrights win (which in this case would be for the side of the photographer), I really just can't see any credible arguments on this founded in trademark.
In ProCD, who is the contract between, exactly? Do you have links to those two cases?
ProCD didn't really explore who the contract was between, but it was between the software publisher and the user. The precise nature of the retailer's involvement wasn't an issue in the case, so it wasn't looked into.
Except that you don't need permission to run the software from the publisher, because 17 USC 116 says you can anyway.
You mean section 117.
ProCD was interesting anyway, because it actually dealt with public domain information -- telephone numbers -- rather than copyrightable software per se.
Your objection is interesting, but AFAIK no one's actually made it in court.
What ProCD is saying re: returns is that the terms of sale of the software include the terms of the EULA. The EULA is presented after the buyer has taken the software home, but it's all one big transaction. If the buyer rejects the EULA, then he has rejected the entire sale. This isn't a breech, it is a rejection of the terms of the offer. That's why returns have to be possible. If the user can't return the software to someone for his money back, then he lacks a real opportunity at the time of EULA-reading to reject, which would tend to jeopardize the idea of EULAs being a part of the initial purchase from the store, which is where the ProCD court sees their legitimacy as coming from.
Slashdot Mirror
If you guys reject copyright here, then you have to reject the GPL as well, since the GPL relies on copyright.
No we don't.
For example, we could say that copyright doesn't apply to individuals making or distributing copies for personal use, but that it does apply to commercial activities and to non-natural persons (e.g. corporate entities). While this would arguably permit people to ignore the GPL in some instances, they likely wouldn't bother; after all, copyright law is actually pretty unfavorable to the GPL now (e.g. you can make changes to software under 17 USC 117 without having to agree to the GPL, so long as you qualify for that exception), and it doesn't seem to have had much of an effect.
While some people do reject the entire notion of copyright, I think that more people merely reject the present implementation. Since there are relatively few boundaries on what copyright laws Congress may enact, almost anything is on the table, including massively scaling back copyright but still preserving some portions of it. The important thing is ensuring that whatever implementation of copyright laws we have serve the public interest better than any alternative implementation; it's not important to serve the interests of authors, however, or to not reduce or alter the laws, save for how those might best serve the public interest.
So don't think of it as an either/or kind of thing. Hell, you could have copyright laws that specifically singled out and preserved the GPL, if that's what we wanted.
Well, other than pirated versions, anyway. That bad quarto of Hamlet is still funny.
Except for the writing once you hit seasons 10 and later, that is. I might be willing to get a 'best of' DVD with the small number of good episodes from the more recent seasons on it, but it'll never compare to the old days when nearly every episode was a winner. Sometimes even the clip shows were good.
Of course, Shakespeare died in 1616, and the first English copyright laws that had anything to do with authors (as opposed to stationer's copyrights which had more to do with publishers and censorship) didn't arise until 1710. And I don't know where you're getting the idea that there were perpetual copyrights as a fairly ordinary matter. So before you point out the mote in the previous poster's eye, perhaps you should attend to the beam in your own?
Which doesn't change the fact that the courts are in agreement that downloading can be illegal in the US. And that numerous people have been sued on the basis that they are liable for someone else having downloaded, and those suits have been successful.
The reason that downloaders usually are ignored is simply tactical; pursuing uploaders is a better use of resources, and pursuing network providers (e.g. torrent trackers, software developers) is an even better use of resources.
Don't think that a downloader can't be sued. It was only a few years ago that they didn't sue any of the users at all.
Two reasons. First, the law is pretty broad, defining income as all income, however derived. They didn't want to leave much out. Second, more suckers will play the lottery if the number is the bigger pre-tax amount than the smaller post-tax amount. So they'd rather do the former. Of course the lottery is a tax on being bad at math anyway.
MP3s. If you capitalize properly, you do not need to throw apostrophes after acronyms.
That's right. People need to use capital threes. But, I'd say that MP3 is more an initialism than an acronym.
The problem is that copyright is a useful tool to protect privacy also.
But it shouldn't be. The policy aim of copyright is to promote the progress of knowledge and public learning. That's completely the opposite of protecting privacy. It's part of the reason that copyright should only apply to published works or works which are to be published soon; unpublished works don't meaningfully contribute to the public, and aren't worth providing costly incentives for.
If you want to protect your privacy, then that's fine, and I don't have a problem with that in a general sense, but it's important to have a separate set of privacy laws for that. This is partially so that they can be fine-tuned for privacy aims, rather than the publication aims that copyright must be fine-tuned for. But also because there is plenty of private information that isn't copyrightable. You see, you cannot copyright facts. And you often cannot copyright compilations of facts, due to a lack of creativity in choosing and arranging those facts. (E.g. all facts about you is an uncreative selection; alphabetical or chronological arrangement is also uncreative) So if you want to keep people from getting your medical history, or credit card numbers, or so on, then copyright law will not help you one bit. And as creativity is a constitutional requirement, that's not going to change.
So please, don't support our present copyright laws for privacy reasons. Support better, more minimal copyright laws, and also support privacy laws. But don't bother trying to combine them; it won't work, it won't satisfy anyone, and we'll both be left upset.
Your example is a harsh reminder that ignorance is usually no defense for breaking the law.
Technically, that's that ignorance of the law is no defense for breaking the law. Ignorance to certain facts -- at least under the right circumstances -- can be a viable defense at times.
To take it a step further; if the person sending you the "mysterious link" was law enforcement would it then be some form of entrapment?
Wouldn't matter. Criminal infringement does require intent. I've been talking about civil infringement, which is much more common.
Or if it was the RIAA?
Entrapment wouldn't really work here, but there's a good equitable argument. You don't get to manufacture your own defendants, and that's basically what they'd be doing.
I mean what if it was something that claimed to be free, legal, too-good-to-be-true, but then it's not?
Like AllOfMP3.com, which AFAIK isn't a sting, or some of the torrent sites a couple of years ago, which became stings in order to save the asses of the site operators? I wouldn't worry about stings so much; there's plenty of things on the net that are too good to be true and aren't. Indeed, as a rule of thumb, I'd tell you that if something does look too good to be true, it probably isn't, and you should be wary of it.
Care to explain? Maybe some linkage, or perhaps an anecdotal example would help to clarify what you mean.
Until the 1976 Copyright Act, published materials that were not formally registered with the Copyright Office (or other bodies, if you go back far enough), were automatically in the public domain. Many unpublished works were as well. And now, after the 1976 Act, unpublished, unregistered works that were created before 1978 and not published by 2003 also automatically entered the public domain. So it's not as though we have to grant copyrights to everything, or something.
But the crappy laws we have these days, which do indiscriminately grant copyrights pretty clearly are not only not benefiting the public (which wants 1) works to be created and published, and; 2) works to be in the public domain as soon as possible and to be minimally protected by copyright if at all), but they aren't even an incentive to authors to begin with. (e.g. architectural works, overly long terms, giving works the full measure of protection without any indication by the author that it is desired)
We can do pretty much anything we want with copyright. It has to provide a public benefit, as described above. It should provide the greatest possible benefit. It has to have limited terms, it has to only protect original works of authorship, and the rights have to vest in the author. So long as these requirements can be met, copyright can be pretty much anything. The current system is no good, though, so at least we know what it shouldn't be.
Let me posit this though: what if I decide that all of my love notes over the years constitute a publishable, marketable product? Since I didn't write them initially to publish have I lost my right to do so?
I think that we ought to take a page from patent law and the old common law copyright, which is pretty closely related to copyright law, in that they use similar means to achieve similar ends. If you're still in the process of creating a work, then you should have some limited rights to prevent people from pirating the manuscript, as it were, but it shouldn't be enough protection that an author would actively want to be at this level of protection if he could avoid it. Otherwise, if you abandon the work in progress, you get one year, and then you lose your rights in it and your eligibility for a registered copyright if you haven't registered it already. If you publish the work (inclusive of publicly performing or displaying it), then you get one year to register before your unregistered rights expire. The whole point of the system should be to weed out authors who are not motivated by the commercial benefits which are the only thing a copyright is good for. Hobbyists shouldn't get copyrights unless they're transitioning over to being professionals; it's not an incentive for hobbyists, who would have done the same work anyway. (It's analogous to paying someone for painting your house after they painted it for free; the charity on both sides is admirable, but it's no way to run a railroad) Once the work is registered, the full measure of protections open up, copies are deposited with the Library of Congress, and you need only renew the copyright periodically (say, every year or two) so that your continuing interest can be judged; fail to renew, and we can safely say that you don't care about the copyright anymore, so the work enters the public domain before the maximum possible term would run through. (Which also is how we used to do things, though with longer terms)
So in your case, you were not inspired by copyright in writing the notes. And while it'd be nice to get them published, which is desirable, it's also nice to not grant copyrights excessively. Often, fewer works but more freedom is more valuable than more works and less freedom. Given that you probably will not have competition for your love letters -- there's so many authors that it's a publisher's market -- you may as well publish it as a public domain work. If there is any money to be mad
Copyright can NOT involve exchange of money for protection.
Yes it can, and in fact, it traditionally has.
When you write something, anything really (that's not immune to copyright such as a recipe), it's copyrighted to you.
Why should that be true? I think that it would be a bad idea to do that, and again, that's a pretty new idea which has been having a lot of predictably bad results.
would it be OK for someone to break into my computer and start distributing my private records or love notes without my permission?
From a perspective of copyright, as opposed to an invasion of privacy? Yes, it would generally be ok. If you could show that you had only recently written them, and that they were copyrightable -- which would exclude many private records, such as birth certificates you didn't write, or ledgers of accounts, which aren't creative as a rule -- and you could show that you were working on getting them published in the near future under the copyright system, then some degree of protection would be appropriate; we don't want people pirating manuscripts, after all. OTOH, if you were not going to publish, then you should not get a copyright. Copyright is meant to encourage authors to create and publish works, and if you weren't going to do that, then why should the incentive be wasted upon you?
Copyright is not a substitute for privacy laws, and you're making a big mistake if you think otherwise.
They very probably could have used the designs and names, and found that the owners had no real interest in defending their rights, since they make a lot more money selling planes than licencing to games companies, but they can't be sure of that.
No, what I'm saying is that they could be pretty sure, if they talked with their lawyers, that the owners have no rights at all; whether or not they want to defend those rights is irrelevant if they haven't got them to begin with. It's like if I said that I owned everything that Shakespeare wrote. Would you give up just because I made an outrageous claim, or would you at least check into it before simply taking it at face value?
Neither should require a lot of money, but both should require some money. Copyrights and patents are economic incentives; they are only useful to authors who plan to make money from their work, or inventors who plan to make money from their invention. Authors or inventors who are motivated to do the same work without the incentive of copyrights or patents should not get them, as they'd be superfluous and harmful to the public without any public benefit. Requiring some small hurdle to be cleared by the rights claimant is a good way of finding out whether or not they care, and thus whether or not they were incentivized. If someone can't be bothered to fill out the paperwork and pay a token fee then the public can't be bothered with giving them unasked for rights.
What rights? The applicable patents, if any, on an Avenger would've expired ages ago, the shape, appearance, and performance characteristics aren't copyrightable or trademarkable due to the respective utility doctrines of those bodies of law, there's no trade secrets involved, and the name is likely not trademarkable either since they don't make and sell them anymore and even if it was, it's a nominative use.
For new planes, I could see patents and trademarks covering certain aspects of it (though utility is just going to keep on killing copyrights in this sphere as to computer simulation games), but for old ones? I'd love to know just what they're hanging their hat on.
No, it's my fault, I wasn't being precise in my earlier post. Direct infringement is a strict liability offense. But some forms of indirect infringement -- i.e. contributory infringement and inducement -- do require some mens rea. In the case of contributory infringement, the contributory infringer must have actual or constructive knowledge of the infringement at the time of his contribution. In the case of inducement, it seems that intent is required, though it's new law and is not all that clear yet. However, in the case of vicarious infringement, the third form of indirect infringement, the vicarious infringer need not have any mens rea with regard to the infringement.
So for your own infringements, intent is not required. But for your involvement in other peoples' infringements, some manner of intent or knowledge may be required, depending on precisely what your involvement and relationship with the other people was.
In the context of the earlier post, however, my point was valid. The earlier post said:
If someone adds your IP to a swarm by sending you a mysterious link using a URL shrinking site, how could you possibly have intent to break a law? IANAL, but copyright infringement must require intent, no?
And in that case, you're looking at direct infringement, since (presumably) you have to have followed the link in order to be added to the swarm, and that's something you did, rather than something someone else did. That you didn't know what would happen isn't relevant in that case, nor is the fact that someone else sent you the link in the first place.
I thought court cases involving copyright law was based on "reasonable doubt",
Only in a criminal copyright infringement case, and those are pretty rare. Ordinary copyright infringement cases use a balance of the probabilities standard, which is a lot lower.
It certainly sounds reasonable that being on a torrent means there is intent on sharing bits in the torrent.
And again, while intent is important in a criminal copyright infringement case, it is irrelevant in a civil copyright infringement case. First, because intent isn't part of the offense; accidental infringement is just as infringing as deliberate infringement. Second, because there's no such thing as intent to infringe; either you have infringed or you have not, and only the latter can give rise to a lawsuit. The only way that intent matters in a civil copyright infringement suit is in calculating statutory damages.
IANAL, but copyright infringement must require intent, no?
No. Copyright infringement is a strict liability offense. Intent is not required.
Wrong.
In a criminal trial, a jury must find a defendant guilty beyond a reasonable doubt. But in a civil trial, which is what 99.44% of all copyright infringement suits are, a jury need only find a defendant liable on the balance of the probabilities. It is a much, much lower standard.
A good example would be the criminal and civil trials of OJ Simpson. In his criminal trial, he was able to cause the jury to have a reasonable doubt, and so was found not guilty. But a reasonable doubt is not sufficient in a civil suit, and so a jury did find him liable in his civil trial. To avoid that fate, he would have had to show that he probably didn't do it, rather than what he did show which was merely that he reasonably possibly didn't do it.
In rough mathematical terms, think of the criminal standard for the prosecution as being 99%. All the defendant has to do is show a 2% chance that it wasn't him, and he gets off the hook. But the civil standard for a plaintiff is 51%. The same 2% argument to introduce a reasonable doubt is pointless. Even a 49% argument by the defendant won't suffice.
This is why I see little value in leaving open WAPs as a legal strategy. I don't think it will help much, if at all.
So? They determine that someone was infringing from a particular IP address. They can't tell that someone was using a WAP or not. The WAP thing is merely suggested as a way to have many people on the same IP address to have some kind of plausible deniability. The problem is that plausible deniability isn't really all that helpful.
However, this has no bearing on direct infringement.
Leaving a WAP open for anyone to use is not a viable way to defend yourself from infringement suits concerning your direct infringement (as opposed to indirect infringement, which is what the court was talking about). This is because in civil copyright suits there is no such thing as 'beyond a reasonable doubt.' The standard of proof is 'on the balance of probabilities,' i.e. whatever is most likely (even if only 51% likely as compared to 49% likely), is what happened.
In fact, in order to use the open WAP to help yourself, you'd have to prove that someone else probably is the infringer, and not you. The plaintiff can get a lot of help from the fact that you, as the owner of the WAP, a person who is very often in its range, and probably a frequent Internet user, probably do use it the most and probably are the infringer. It's tough for you to argue that someone else did the deed, especially if you don't have anything to point to other than that it's open. In fact, just because it's open doesn't even mean anyone else ever uses it.
Oh, I see -- the cash payment is viewed as a deposit.
You could look at it like that, though I wouldn't necessarily use that precise wording.
This seems a violation of common-law sale
Who has that? The law of sales here is governed by the UCC.
particularly the doctrine of first sale
No, not really. First sale is only a limitation on how copyrights may be used. It doesn't have any impact -- at least, given the current precedents -- on how contracts and terms of sale may be used. Thus Alice cannot order Bob, using the power of her copyright, to not resell a book she sold to him. But Alice can condition her original sale of the book to Bob on his agreement to a contract that prohibits resale.
You could make a decent policy argument against this, but AFAIK no one has managed to yet.
What happens if the purchaser resells the software without installing it? How could a subsequent buyer get a refund?
Well, there was one precedent which supported the idea that a non-using purchaser is only an intermediary and isn't bound by the terms in the box so long as he doesn't open the box. This would tend to indicate that the later buyer can get a refund, but it's unclear as to from whom. But IIRC, there was another case to the opposite, and if you follow the ProCD logic then the latter is more likely correct.
From UCITA on
UCITA is pretty dead. Two states adopted it, several others have anti-UCITA laws to defeat it, and no one is looking at it any more.
Well, that's not how it works in the US, that's for sure.
In the US, the only architectural works that are copyrightable are those created on or after December 1, 1990 (whether in the form of plans or as a building), and those created but not published or constructed before that date provided that they were published or constructed before December 31, 2002. This means that no architectural work embodied in an actual building built before December 1, 1990 (e.g. the Empire State Building) is copyrightable.
If a building that embodies a copyrighted architectural work is located in or visible from a public place, then the copyright on the architectural work doesn't cover the making of pictorial representations of it (e.g. photographs, paintings), nor the distribution or public display of those representations. Whether it's commercial or not is irrelevant.
If there is another copyrightable work involved -- e.g. a mural or sculpture on the building -- then there is an initial question as to whether or not it's part of the architectural work. But assuming that it is not, and that the 17 USC 120 exception above wouldn't apply to the second work being photographed, there is still a very strong fair use argument in favor of the photographer. It's stronger if the photograph isn't commercial, but it's entirely possible and commonplace to have commercial fair use.
As for trademarks being relevant, I think that there is virtually no chance of that whatsoever. You don't infringe on a trademark merely by reproducing a trademark. It takes a lot more than that. Further, it'd be tough to get a trademark on an entire building and all the depictions thereof. And given that where there are policy conflicts between trademarks and copyrights, copyrights win (which in this case would be for the side of the photographer), I really just can't see any credible arguments on this founded in trademark.
In ProCD, who is the contract between, exactly? Do you have links to those two cases?
ProCD didn't really explore who the contract was between, but it was between the software publisher and the user. The precise nature of the retailer's involvement wasn't an issue in the case, so it wasn't looked into.
ProCD is here and Klocek is here.
Except that you don't need permission to run the software from the publisher, because 17 USC 116 says you can anyway.
You mean section 117.
ProCD was interesting anyway, because it actually dealt with public domain information -- telephone numbers -- rather than copyrightable software per se.
Your objection is interesting, but AFAIK no one's actually made it in court.
What ProCD is saying re: returns is that the terms of sale of the software include the terms of the EULA. The EULA is presented after the buyer has taken the software home, but it's all one big transaction. If the buyer rejects the EULA, then he has rejected the entire sale. This isn't a breech, it is a rejection of the terms of the offer. That's why returns have to be possible. If the user can't return the software to someone for his money back, then he lacks a real opportunity at the time of EULA-reading to reject, which would tend to jeopardize the idea of EULAs being a part of the initial purchase from the store, which is where the ProCD court sees their legitimacy as coming from.
And they're very difficult to trademark as well. Most titles aren't trademarkable, in fact.