Well, there are two conflicting schools of thought. One is the ProCD line of cases, where the EULA is part of the overall sales transaction that included going to the store and buying the box; so long as you can reject the terms and return the software, if you agree to the terms, they're valid, since they don't come after the sale, they're just a delayed part of it. The other is from Kloeck v. Gateway, IIRC, which says that the sales transaction doesn't include the EULA, and thus while they could arguably be agreed to, they aren't normally and thus aren't enforceable. Ultimately, IIRC, it all comes down to precisely how you interpret UCC 2-207. Personally, I think that Kloeck gets it right, apart from general dislike for EULAs. But ProCD has more supporters. And a legislative solution, restricting adhesive licensure somewhat, would be best.
There are some elements in a creative work that can be handled in a variety of ways. There are others that can be handled pretty much only one way.
Well, you're kind of confusing the scènes à faire doctrine with the merger doctrine there.
Copyright protects expressions of ideas, but not the underlying ideas themselves. For example, the idea of star-crossed lovers is uncopyrightable, but its particular expression in Romeo and Juliet (ignoring things like when and by whom it was written) would be copyrightable. If there is only one way, or only a small number of ways, to reasonably express an idea, then the idea and the expression(s) merge. Protecting the expression would effectively be protecting the idea, and since the latter is forbidden, there can't be a copyright on the expression. One example of the merger doctrine involved the legal language in rules for a contest; there's only so many ways to say things like 'send your parents' brains, or write "Parents' brains" on a 3x5 card and send it.'
Scènes à faire deals with routine or stock scenes that are standard. For example, in a movie about draculas, you'd have a scene of a spooky castle at night, with a full moon and a wolf howl sound effect. That's so standard that it lacks creativity, which is a constitutional requirement for copyright. But if you have a wacky romantic comedy set in modern-day New York, that same scene, given the overall context, would not be a stock scene, and so would probably be copyrightable there. That copyright wouldn't really matter to the horror genre, but it could be notable in the romantic comedy genre.
USB floppies are trickier than you think. The main problem is that the data interface for a floppy is only accessible when you open the shutter, but when you plug in a usb cable and spin up the floppy, the cable tends to either damage the media or get pulled into the disk, causing it to jam.
No, originality means it has a modicum of creativity and wasn't copied. But originality does not mean novelty, i.e. never having been created before.
So if Alice writes a poem, and later on Bob writes an identical poem, both poems are independently copyrightable, so long as Bob didn't copy his poem from Alice. The fact that they're identical doesn't matter at all.
So how does a computer check this?
And that's text, which would be easy to put into a computer.
Also, people who use CC or the GPL, or whatever, are still relying on copyright, and should still have to go through the same registration procedures as everyone else.
The quality issue is the problem that should be addressed.... Quality is an individual measure and it should be encouraged.
No, quality is a matter of subjective artistic judgment, and it's variable over time, as well. The government is in no position to say that one work is of higher quality than another; it's not something they're competent at doing, and in any case, who are they to judge? Part of the genius of the copyright system is that a copyright on its own is worthless. A copyright merely acts like a lens, concentrating the economic value of a work on the copyright holder, rather than letting it be diffused as it would be naturally. If the work is popular, the copyright will have value. If the work is unpopular, the copyright will not have value. Artistic judgments are left for the audience and the market to decide as a matter of popularity. Sure, you can be a snob and argue that it doesn't matter if a million people think a work is great art, if they're the 'wrong people,' but it's not as though a small minority with 'better' taste really has a right to tell everyone else who's right and who's wrong.
So again, quality is a no-go. It can't be measured, it can't be encouraged (since there's no way to know if the encouragement is working), and it's dangerous since it leads us into unjustifiable elitism which has a bad track record anyway.
We're left with quantity, which is easy to measure and easy to encourage and perfectly benign. And since it's neutral, if you increase the quantity of works, you get proportionately more good works along with the bad works, so any desire for better quality that's still somehow hanging on there will be satiated anyhow.
First historically things were created in limited quantities because every creation was a one-of-a-kind.
Things are still created in limited quantities, actually. This is because of a problem of finite resources. As for every copy being one of a kind, you're wrong. Even if you have to have a scribe copy a book by hand, you still end up with another copy. Ditto for songs and such. Your point is limited to things like paintings and sculptures, and you're actually wrong there too, since popular ones were copied commonly enough if there was demand for it.
Second the patron system was simply a smaller pool of "customers" calling the shots. e.g. monarchies, businesses, churches, rich collectors. For those who weren't fortunate enough to fall into that system, there was the street performer. However that wasn't much better because one couldn't always depend on getting paid, let alone enough to live on. There's a reason the term "starving artist" came into being. And second the public benefit was a rather variable thing. The patrons could horde their "benefit", and the street performer beneficiaries themselves didn't always have the means to turn what the artists offered into something that trickled down to others. In other words they were in similiar economic circumstances as the artist, and had their own lives to lead. And last, yes there are non-economic motives to creating. But that's not the same as sharing with everyone else. Remember Davinci's cryptic notebooks.
There's nothing wrong with patronage, and it's still common today. Ask any portrait photographer; it's not as though he's going to sell copies of my family's photos to anyone else, as there's no demand. Custom software development is another example of patronage. As for Davinci, you forgot that I said that the public wants works created and published. Mere creation isn't good enough. That's why works should not get a copyright until they are published, save for a minor, temporary copyright to protect it from piracy before it can be published, but only if the author is working to get it published. And we'll treat publication broadly here, inclusive of public performance and display; anything that gets the work into the public consciousness.
The basic problem DRM tries to solve is really simple - we want professionals to produce high quality 'creative works' despite us having technology that can replicate such an item for zero cost.
Perhaps, but that's not the problem I'm interested in having solved, or that the public is interested in having solved. That problem is that we want as many creative works created and published as possible, and that we also want just as much for those works to be available to everyone who wants them, without restriction, and for the least cost possible, if any.
I don't care if someone is a professional or not. And since there's no objective measure of quality in the field of creative works, we can only try to encourage quantity. (Though there is a rule of thumb that only a small, fixed fraction of all works are good, so the way to get more good works is to have more works overall, so it all works out anyway)
So taking into consideration the actual problem, rather than what you'd like to distract us with, DRM is simply unacceptable. Here's why:
Let's suppose we had a world without copyright, a world with moderate copyright, and a world with excessive copyright. In the first world, some original works are created (as we know will happen from historical example and the fact that other motives exist for artists besides copyright-derived revenue), but probably not a whole lot. This produces some public benefit, but not a great deal. Let's arbitrarily call it 5%. OTOH, there is total freedom with regard to those works, so everyone can have their own personal universal library, everyone can use whatever works they want in creating their own derivative works, without even so much as a transactional cost, and this produces a very large public benefit. Let's arbitrarily call this 44% (34% from the freedom, and 10% from the derivative works created, which will likely outnumber the original works, as we also know from history). The net public good is 49%
In the second world, there is some copyright, but not too much. This produces a substantial incentive to authors and doesn't reduce their other incentives. This results in a large public benefit. Let's say 30%, since we know that copyright is an economic incentive, and we know that the vast majority of revenue from copyrighted works is made within a few years, tops. (Often a few months or even weeks, depending on the particular medium and market). There is some, but not total, freedom with regard to those works for a little while -- long enough for that revenue to get made -- at which point there is total freedom. So while eventually there is just as much freedom as before, there is much less in the short run. Let's call this 29% (24% from the freedom, and 5% from the derivatives, of which there will be far, far fewer). The net public good is 59%.
In the third world, there is a very large amount of copyright. This produces only slightly more of an incentive to authors without reducing their other incentives. This results in pretty nearly the same public benefit as before, since the artists were already getting pretty much all the money possible out of their works, and now they're only getting a few pennies more. This isn't much of an increased incentive to create, but it's about the same as before. Let's say 33%, which is the max. There is little freedom during the copyright, and now it lasts much, much longer before there is total freedom. Let's call this 7% (5% for the limited freedom during copyright, 1% for the freedom when a work expires, which almost never happens, and 1% for the very small number of derivatives that get created). The net public good is 40%.
Since we want to get the greatest net public good, the answer is clear: no copyright is good, but not maximally good, and too much copyright is worse than none at all. The best thing is to have some, but not too much copyright.
DRM is an attempt to have permanent copyrights which are very very limited, and which are implemented privately so that the public and the gover
So not only should you have to register for copyright and prove your work was original, the work should be reviewed to ensure it in fact does actually promote the arts and the sciences, other wise into the public domain it goes.
Meh. Originality merely means that it isn't copied from someone else and that it has a modicum of creativity. It's easier to disprove than to prove. Similarly, copyright is concerned with promoting science (it's patents that are concerned with promoting the useful arts), but since 'science' in this context merely means general knowledge, pretty much anything will work, since it's pretty damn easy to enlarge the scope of what humanity knows.
I'd rather limit copyright examination to the obvious uncopyrightable categories, e.g. unoriginal compilations of facts, useful articles, names, etc. An opposition and reexamination process would be better, since it requires someone out there to actually oppose the copyright, rather than the Copyright Office having to check everything that is registered, and is therefore more efficient.
In fact, I'd be amazed if a phrase along the lines of "for personal use only" isn't right there in the fair use clause.
Well, prepare to be amazed then; there's no such phrase.
The statutory recitation of fair use is:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Any use that is fair is a fair use. If a commercial use can be fair -- for example, a movie that parodies another movie, and is itself distributed for commercial gain -- then it's fair. That it's not a personal use doesn't weigh against it. It is relevant if the use would have a negative effect upon the potential market or value of the work being used, but, continuing with the parody example, as few people are willing to parody themselves, and as parodies don't harm the market for the original, a typical parody will have no trouble with this factor.
Timeshifting or spaceshifting uses the entire, actual work, and fails on the first three factors. Its only hope is to win on the fourth, and it's by no means certain. Indeed, that it used to be fair might change in the light of new circumstances to consider, such as the availability of cheap downloads on iTMS.
Also, while I don't know about US copyright law, here in the UK the clause that allows for time-shifting specifically disallows building up a "home library" of recordings - ie you're not allowed to keep them indefinitely.
No, there's no such limitation here. Of course, there's also no allowance for time shifting. It's treated like any other fair use, which means that sometimes it'll be legal, and sometimes it won't be legal, and it has to be considered based on the actual circumstances involved, every single time.
Remember, that the only potentially illegal thing in the time-shifting and archiving scenario is making the copies in the first place. There's no law that prohibits possessing copies, whether they were lawfully made or not. What your intentions are with regard to the copies you're making may have an affect on whether the making of those copies was a fair use; if you only want to catch up on a show, and don't plan on keeping them, that's more likely to be fair than if you want to make a library so that you don't have to buy the DVDs to accomplish the same end result. But if you can manage to have it be fair use, after that point, it doesn't matter how long you keep them. The really interesting legal question is whether courts would consider facts that occurred after the fair use, or whether they'd only look at what you did up to the fair use, both in trying to determine whether the fair use was actually fair or not.
The Constitution does not guarantee copyrights. Nor does it require Congress to enact copyright laws. All it does is empower Congress to enact copyright laws, or not, as it chooses. That's why it says that they have a power, not that they shall do something.
Before the current government was established, the states had control over copyright, along with interstate commerce, extradition, and a number of other things. And they made a hash of it. The numerous screw-ups on the part of the states and the very weak confederate government gave rise to the wholesale recreation of the US government that gave us the federal constitution. While the framers wanted a stronger central government, they didn't want it to be too strong, so they limited it so that it could only have certain enumerated powers. Since the states had shown themselves to be inept at certain kinds of things, those were the powers given to the federal government. One of those things was copyright.
The framers generally didn't think that copyright was needed, but that under the right circumstances it was useful. They thought that their circumstances were such that it was useful, but of course, given different circumstances, or different amounts of copyright, that usefulness might not exist.
What we're talking about is selling copies, and copies are defined in the law as tangible objects. A copy isn't the same as a creative work. A piece of music is a creative work, but it can subsist in any of a number of different kinds of copies, e.g. sheet music, a CD, a cassette tape, a hard drive, a memory chip. The same work can be present in only one copy, or in millions of copies simultaneously. The copy is just a medium that has a message written on it. A blank CDR isn't a copy, but once a work has been written to it, it is a copy. One tangible object can be a copy for many different works simultaneously (e.g. a hard drive that has a bunch of ripped music on it is a copy of each of those works).
So it's easy for a record store to sell copies; the CDs are tangible objects, made in a factory. They buy the CDs from the publisher and sell them.
But Apple can't do that. There's no way to send a tangible object like an actual plastic and metal compact disc through the Internet. Instead, they can only send the creative work. The person who downloads it is licensed (by Apple, which has the power and permission to do so as part of its license from the copyright holders) to make a copy by writing that information to their computer's RAM, hard drive, etc. Apple sells access to creative works and permission to make copies of those works. But they don't sell copies, and they certainly don't resell copies.
That there is a colloquial definition of the word copy isn't relevant. All that matters is the legal definition for copyright law purposes, and it's as I've described it.
I agree, but there is a difference between selling music, which is what you initially said, and which is what the article is about, and reselling music, which is something you've only just now brought up.
You need to look at the whole subsection, and not just cherry-pick:
In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.
It doesn't matter if it's lawful according to the laws of the country where it was made, it matters if it would have been lawful had the laws of that country been the same as US copyright law. So if it was made relying on a provision in the local copyright law that has no counterpart in our law, the import is banned. The part you cited indicates that if it would still have been lawful had US laws applied, then the importation is okay.
The idea is that if a US copyright is to be of any value, we can't allow it to be undercut by imports. Suppose that in Pottsylvania, it's legal for anyone to make and sell CDs of other people's musical compositions and sound recordings if they pay a compulsory license to the copyright holder, rather than getting permission from the copyright holder. While those CDs would be perfectly legal to make in Pottsylvania, since the US has no such compulsory license, it wouldn't be legal to make them here. If we allowed the imports, then the value of the US copyright would be diminished since no one would ever bother to get permission (under the US system) but would instead just go the Pottsylvania route. So we bar importation that would have a negative effect on our system.
By and large, I expect that 602(b) wouldn't bar most imports from Japan. But it might bar some, and so I wouldn't say that any import from Japan is invariably going to be legal to bring here.
That's not necessarily legal. It could easily run afoul of 17 USC 602(b), or not, depending on precisely what occurs in Japan. So it's a bit of a crapshoot.
If you do something that would otherwise be copyright infringement, a good way to protect yourself is to get a license -- i.e. permission -- from the relevant copyright holder. For example, if I want to make and publish copies of a Japanese song in the US, I need to find the person in Japan that owns the US copyright, and get permission from them to make and publish copies in the US. As a practical matter, they won't give me that license unless I pay them for it. It could be that between how much they want for it, how much I'm willing to pay for it, how much I can make if I get the license, how much I could make if I did something else, and the transactional costs involved (e.g. the cost of tracking the other person down, going to Japan, getting a translator, etc.), it might not be worthwhile.
But no one is talking about anything like a business license, or a driver's license, you idiot.
The treaty you're thinking of didn't do anything to importation rights, and has required things like anticircumvention rights. (The way that the IP interests get more protection in the US without much debate here is to get our diplomats to support it, put it in treaties, to get the treaties ratified, and then Congress is told to make the necessary laws so that we can live up to our treaty obligations; it's kind of a back door)
Frankly, no copyright treaty has ever done anything good for the public, and we'd be a lot better off trashing all of them and simply adopting the idea of unilateral national treatment without minimum standards, and informal cooperation to ensure that however two countries implemented their copyright laws, they didn't conflict such that an author was forced to choose between two exclusive copyrights.
No, that one is listed on the Bruce Schneier facts page. Which doesn't mean that he needs physical strength, just that Bruce Schneier can defeat any cryptosystem with his brains or his brawn. So we're both right about what he can do.
I'm no fan of the Republicans, but you've gotta admit that Clinton was being pretty ridiculous.:-)
No, he wasn't being ridiculous, really, but he was being very precise in order to avoid the real issue. Given that it was a deposition and he used to be a lawyer, it shouldn't be a big surprise that he'd fall back on lawyerly habits. He had a decent, though somewhat weak point:
He was asked to explain a previous statement which was basically 'there is nothing going on between [himself and Lewinsky].'
In explaining it, he said that if you take the word 'is' literally, then he was right. Because at the time he made the statement, the affair was over, and thus couldn't be described in the present tense. OTOH, if you are using 'is' in a loose sense that is inclusive of 'was,' then he would've been lying, because at that time the affair had happened in the past, but wasn't happening any more.
Of course, everyone knew that the affair was over, so it was pretty clear that his initial statement (using 'is' in the present tense) was pretty evasive and misleading, in that he was trying to give an answer to a question that no one asked, instead of answering the question that had been put to him. The 'is' thing is just him trying to justify it, later on. He's technically correct -- the best kind of correct -- but apparently it didn't pass the laugh test. Most of the hubbub over it, however, seems to have ignored the actual context, so it just looks like ludicrous evasiveness instead of boring, ordinary evasiveness.
Just a nit, but sometimes the federal Constitution does regulate the people of the United States. For example, the 13th Amendment applies to everyone; it's just as unconstitutional for a private individual to violate that as it is for the government to.
Because the federal government refuses to give highway money to any state that doesn't set a minimum drinking age of 21. Today, all the states have capitulated, but that does not make it a federal law, because the federal government is not granted that power.
No, the federal government does have the power to spend money as it sees fit. It's known as the spending power, and is enumerated at article I, section 8, clause 1.
Maybe, but in Rocky 10, his brain will have been put into a gigantic, well-armed robot body. And then this new Mecha-Rocky will destroy his latest foe with death rays from his atom-powered eyes.
And? Frankly, we never should've signed on to Berne. It's a huge pile of shit. That said, I don't think that the protectionist policies we had way back in the 19th century were a good idea either; we should unilaterally grant everyone national treatment. But there should not be any minimum standards internationally. If one country wants to not have copyrights, then that's a perfectly valid option. Each country should decide whether copyrights generally, and what copyright policy in specific, is best for them.
Actually, the OED has an example of 'pirate' used in this meaning that dates back to 1603. Worth keeping in mind is that copyright as we know it wasn't invented until about a century later.
Its not really supposed to be. The idea is to spread the word that its illegal/wrong to infringe on copyright. That way people can't use the "i didnt know" defense.
Ignorance of the law isn't a defense. These sorts of things might have propaganda value that the copyright interests find desirable, but they really don't have any legal weight one way or the other.
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Well, there are two conflicting schools of thought. One is the ProCD line of cases, where the EULA is part of the overall sales transaction that included going to the store and buying the box; so long as you can reject the terms and return the software, if you agree to the terms, they're valid, since they don't come after the sale, they're just a delayed part of it. The other is from Kloeck v. Gateway, IIRC, which says that the sales transaction doesn't include the EULA, and thus while they could arguably be agreed to, they aren't normally and thus aren't enforceable. Ultimately, IIRC, it all comes down to precisely how you interpret UCC 2-207. Personally, I think that Kloeck gets it right, apart from general dislike for EULAs. But ProCD has more supporters. And a legislative solution, restricting adhesive licensure somewhat, would be best.
There are some elements in a creative work that can be handled in a variety of ways. There are others that can be handled pretty much only one way.
Well, you're kind of confusing the scènes à faire doctrine with the merger doctrine there.
Copyright protects expressions of ideas, but not the underlying ideas themselves. For example, the idea of star-crossed lovers is uncopyrightable, but its particular expression in Romeo and Juliet (ignoring things like when and by whom it was written) would be copyrightable. If there is only one way, or only a small number of ways, to reasonably express an idea, then the idea and the expression(s) merge. Protecting the expression would effectively be protecting the idea, and since the latter is forbidden, there can't be a copyright on the expression. One example of the merger doctrine involved the legal language in rules for a contest; there's only so many ways to say things like 'send your parents' brains, or write "Parents' brains" on a 3x5 card and send it.'
Scènes à faire deals with routine or stock scenes that are standard. For example, in a movie about draculas, you'd have a scene of a spooky castle at night, with a full moon and a wolf howl sound effect. That's so standard that it lacks creativity, which is a constitutional requirement for copyright. But if you have a wacky romantic comedy set in modern-day New York, that same scene, given the overall context, would not be a stock scene, and so would probably be copyrightable there. That copyright wouldn't really matter to the horror genre, but it could be notable in the romantic comedy genre.
And together they form the MAFIAA = Music And Film Industry Association of America!!
No, together they form Voltron (the industry association one, not the lion one or the little vehicle one).
USB floppies are trickier than you think. The main problem is that the data interface for a floppy is only accessible when you open the shutter, but when you plug in a usb cable and spin up the floppy, the cable tends to either damage the media or get pulled into the disk, causing it to jam.
No, originality means it has a modicum of creativity and wasn't copied. But originality does not mean novelty, i.e. never having been created before.
So if Alice writes a poem, and later on Bob writes an identical poem, both poems are independently copyrightable, so long as Bob didn't copy his poem from Alice. The fact that they're identical doesn't matter at all.
So how does a computer check this?
And that's text, which would be easy to put into a computer.
Also, people who use CC or the GPL, or whatever, are still relying on copyright, and should still have to go through the same registration procedures as everyone else.
The quality issue is the problem that should be addressed. ... Quality is an individual measure and it should be encouraged.
No, quality is a matter of subjective artistic judgment, and it's variable over time, as well. The government is in no position to say that one work is of higher quality than another; it's not something they're competent at doing, and in any case, who are they to judge? Part of the genius of the copyright system is that a copyright on its own is worthless. A copyright merely acts like a lens, concentrating the economic value of a work on the copyright holder, rather than letting it be diffused as it would be naturally. If the work is popular, the copyright will have value. If the work is unpopular, the copyright will not have value. Artistic judgments are left for the audience and the market to decide as a matter of popularity. Sure, you can be a snob and argue that it doesn't matter if a million people think a work is great art, if they're the 'wrong people,' but it's not as though a small minority with 'better' taste really has a right to tell everyone else who's right and who's wrong.
So again, quality is a no-go. It can't be measured, it can't be encouraged (since there's no way to know if the encouragement is working), and it's dangerous since it leads us into unjustifiable elitism which has a bad track record anyway.
We're left with quantity, which is easy to measure and easy to encourage and perfectly benign. And since it's neutral, if you increase the quantity of works, you get proportionately more good works along with the bad works, so any desire for better quality that's still somehow hanging on there will be satiated anyhow.
First historically things were created in limited quantities because every creation was a one-of-a-kind.
Things are still created in limited quantities, actually. This is because of a problem of finite resources. As for every copy being one of a kind, you're wrong. Even if you have to have a scribe copy a book by hand, you still end up with another copy. Ditto for songs and such. Your point is limited to things like paintings and sculptures, and you're actually wrong there too, since popular ones were copied commonly enough if there was demand for it.
Second the patron system was simply a smaller pool of "customers" calling the shots. e.g. monarchies, businesses, churches, rich collectors. For those who weren't fortunate enough to fall into that system, there was the street performer. However that wasn't much better because one couldn't always depend on getting paid, let alone enough to live on. There's a reason the term "starving artist" came into being. And second the public benefit was a rather variable thing. The patrons could horde their "benefit", and the street performer beneficiaries themselves didn't always have the means to turn what the artists offered into something that trickled down to others. In other words they were in similiar economic circumstances as the artist, and had their own lives to lead. And last, yes there are non-economic motives to creating. But that's not the same as sharing with everyone else. Remember Davinci's cryptic notebooks.
There's nothing wrong with patronage, and it's still common today. Ask any portrait photographer; it's not as though he's going to sell copies of my family's photos to anyone else, as there's no demand. Custom software development is another example of patronage. As for Davinci, you forgot that I said that the public wants works created and published. Mere creation isn't good enough. That's why works should not get a copyright until they are published, save for a minor, temporary copyright to protect it from piracy before it can be published, but only if the author is working to get it published. And we'll treat publication broadly here, inclusive of public performance and display; anything that gets the work into the public consciousness.
Generally though, you're just rambling.
The artists is "public" to
Bill Gates can go attempt asexual reproduction if he thinks I'm going to run through two installs just to get one O/S working.
Attempt? Bill Gates can undergo mitosis at will. Didn't you know that? It's one of the creepier things about him.
The basic problem DRM tries to solve is really simple - we want professionals to produce high quality 'creative works' despite us having technology that can replicate such an item for zero cost.
Perhaps, but that's not the problem I'm interested in having solved, or that the public is interested in having solved. That problem is that we want as many creative works created and published as possible, and that we also want just as much for those works to be available to everyone who wants them, without restriction, and for the least cost possible, if any.
I don't care if someone is a professional or not. And since there's no objective measure of quality in the field of creative works, we can only try to encourage quantity. (Though there is a rule of thumb that only a small, fixed fraction of all works are good, so the way to get more good works is to have more works overall, so it all works out anyway)
So taking into consideration the actual problem, rather than what you'd like to distract us with, DRM is simply unacceptable. Here's why:
Let's suppose we had a world without copyright, a world with moderate copyright, and a world with excessive copyright. In the first world, some original works are created (as we know will happen from historical example and the fact that other motives exist for artists besides copyright-derived revenue), but probably not a whole lot. This produces some public benefit, but not a great deal. Let's arbitrarily call it 5%. OTOH, there is total freedom with regard to those works, so everyone can have their own personal universal library, everyone can use whatever works they want in creating their own derivative works, without even so much as a transactional cost, and this produces a very large public benefit. Let's arbitrarily call this 44% (34% from the freedom, and 10% from the derivative works created, which will likely outnumber the original works, as we also know from history). The net public good is 49%
In the second world, there is some copyright, but not too much. This produces a substantial incentive to authors and doesn't reduce their other incentives. This results in a large public benefit. Let's say 30%, since we know that copyright is an economic incentive, and we know that the vast majority of revenue from copyrighted works is made within a few years, tops. (Often a few months or even weeks, depending on the particular medium and market). There is some, but not total, freedom with regard to those works for a little while -- long enough for that revenue to get made -- at which point there is total freedom. So while eventually there is just as much freedom as before, there is much less in the short run. Let's call this 29% (24% from the freedom, and 5% from the derivatives, of which there will be far, far fewer). The net public good is 59%.
In the third world, there is a very large amount of copyright. This produces only slightly more of an incentive to authors without reducing their other incentives. This results in pretty nearly the same public benefit as before, since the artists were already getting pretty much all the money possible out of their works, and now they're only getting a few pennies more. This isn't much of an increased incentive to create, but it's about the same as before. Let's say 33%, which is the max. There is little freedom during the copyright, and now it lasts much, much longer before there is total freedom. Let's call this 7% (5% for the limited freedom during copyright, 1% for the freedom when a work expires, which almost never happens, and 1% for the very small number of derivatives that get created). The net public good is 40%.
Since we want to get the greatest net public good, the answer is clear: no copyright is good, but not maximally good, and too much copyright is worse than none at all. The best thing is to have some, but not too much copyright.
DRM is an attempt to have permanent copyrights which are very very limited, and which are implemented privately so that the public and the gover
So not only should you have to register for copyright and prove your work was original, the work should be reviewed to ensure it in fact does actually promote the arts and the sciences, other wise into the public domain it goes.
Meh. Originality merely means that it isn't copied from someone else and that it has a modicum of creativity. It's easier to disprove than to prove. Similarly, copyright is concerned with promoting science (it's patents that are concerned with promoting the useful arts), but since 'science' in this context merely means general knowledge, pretty much anything will work, since it's pretty damn easy to enlarge the scope of what humanity knows.
I'd rather limit copyright examination to the obvious uncopyrightable categories, e.g. unoriginal compilations of facts, useful articles, names, etc. An opposition and reexamination process would be better, since it requires someone out there to actually oppose the copyright, rather than the Copyright Office having to check everything that is registered, and is therefore more efficient.
Well, prepare to be amazed then; there's no such phrase.
The statutory recitation of fair use is: Any use that is fair is a fair use. If a commercial use can be fair -- for example, a movie that parodies another movie, and is itself distributed for commercial gain -- then it's fair. That it's not a personal use doesn't weigh against it. It is relevant if the use would have a negative effect upon the potential market or value of the work being used, but, continuing with the parody example, as few people are willing to parody themselves, and as parodies don't harm the market for the original, a typical parody will have no trouble with this factor.
Timeshifting or spaceshifting uses the entire, actual work, and fails on the first three factors. Its only hope is to win on the fourth, and it's by no means certain. Indeed, that it used to be fair might change in the light of new circumstances to consider, such as the availability of cheap downloads on iTMS.
Also, while I don't know about US copyright law, here in the UK the clause that allows for time-shifting specifically disallows building up a "home library" of recordings - ie you're not allowed to keep them indefinitely.
No, there's no such limitation here. Of course, there's also no allowance for time shifting. It's treated like any other fair use, which means that sometimes it'll be legal, and sometimes it won't be legal, and it has to be considered based on the actual circumstances involved, every single time.
Remember, that the only potentially illegal thing in the time-shifting and archiving scenario is making the copies in the first place. There's no law that prohibits possessing copies, whether they were lawfully made or not. What your intentions are with regard to the copies you're making may have an affect on whether the making of those copies was a fair use; if you only want to catch up on a show, and don't plan on keeping them, that's more likely to be fair than if you want to make a library so that you don't have to buy the DVDs to accomplish the same end result. But if you can manage to have it be fair use, after that point, it doesn't matter how long you keep them. The really interesting legal question is whether courts would consider facts that occurred after the fair use, or whether they'd only look at what you did up to the fair use, both in trying to determine whether the fair use was actually fair or not.
No.
The Constitution does not guarantee copyrights. Nor does it require Congress to enact copyright laws. All it does is empower Congress to enact copyright laws, or not, as it chooses. That's why it says that they have a power, not that they shall do something.
Before the current government was established, the states had control over copyright, along with interstate commerce, extradition, and a number of other things. And they made a hash of it. The numerous screw-ups on the part of the states and the very weak confederate government gave rise to the wholesale recreation of the US government that gave us the federal constitution. While the framers wanted a stronger central government, they didn't want it to be too strong, so they limited it so that it could only have certain enumerated powers. Since the states had shown themselves to be inept at certain kinds of things, those were the powers given to the federal government. One of those things was copyright.
The framers generally didn't think that copyright was needed, but that under the right circumstances it was useful. They thought that their circumstances were such that it was useful, but of course, given different circumstances, or different amounts of copyright, that usefulness might not exist.
No.
What we're talking about is selling copies, and copies are defined in the law as tangible objects. A copy isn't the same as a creative work. A piece of music is a creative work, but it can subsist in any of a number of different kinds of copies, e.g. sheet music, a CD, a cassette tape, a hard drive, a memory chip. The same work can be present in only one copy, or in millions of copies simultaneously. The copy is just a medium that has a message written on it. A blank CDR isn't a copy, but once a work has been written to it, it is a copy. One tangible object can be a copy for many different works simultaneously (e.g. a hard drive that has a bunch of ripped music on it is a copy of each of those works).
So it's easy for a record store to sell copies; the CDs are tangible objects, made in a factory. They buy the CDs from the publisher and sell them.
But Apple can't do that. There's no way to send a tangible object like an actual plastic and metal compact disc through the Internet. Instead, they can only send the creative work. The person who downloads it is licensed (by Apple, which has the power and permission to do so as part of its license from the copyright holders) to make a copy by writing that information to their computer's RAM, hard drive, etc. Apple sells access to creative works and permission to make copies of those works. But they don't sell copies, and they certainly don't resell copies.
That there is a colloquial definition of the word copy isn't relevant. All that matters is the legal definition for copyright law purposes, and it's as I've described it.
I agree, but there is a difference between selling music, which is what you initially said, and which is what the article is about, and reselling music, which is something you've only just now brought up.
You need to look at the whole subsection, and not just cherry-pick:
In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.
It doesn't matter if it's lawful according to the laws of the country where it was made, it matters if it would have been lawful had the laws of that country been the same as US copyright law. So if it was made relying on a provision in the local copyright law that has no counterpart in our law, the import is banned. The part you cited indicates that if it would still have been lawful had US laws applied, then the importation is okay.
The idea is that if a US copyright is to be of any value, we can't allow it to be undercut by imports. Suppose that in Pottsylvania, it's legal for anyone to make and sell CDs of other people's musical compositions and sound recordings if they pay a compulsory license to the copyright holder, rather than getting permission from the copyright holder. While those CDs would be perfectly legal to make in Pottsylvania, since the US has no such compulsory license, it wouldn't be legal to make them here. If we allowed the imports, then the value of the US copyright would be diminished since no one would ever bother to get permission (under the US system) but would instead just go the Pottsylvania route. So we bar importation that would have a negative effect on our system.
By and large, I expect that 602(b) wouldn't bar most imports from Japan. But it might bar some, and so I wouldn't say that any import from Japan is invariably going to be legal to bring here.
That's not necessarily legal. It could easily run afoul of 17 USC 602(b), or not, depending on precisely what occurs in Japan. So it's a bit of a crapshoot.
What a stupid comment.
If you do something that would otherwise be copyright infringement, a good way to protect yourself is to get a license -- i.e. permission -- from the relevant copyright holder. For example, if I want to make and publish copies of a Japanese song in the US, I need to find the person in Japan that owns the US copyright, and get permission from them to make and publish copies in the US. As a practical matter, they won't give me that license unless I pay them for it. It could be that between how much they want for it, how much I'm willing to pay for it, how much I can make if I get the license, how much I could make if I did something else, and the transactional costs involved (e.g. the cost of tracking the other person down, going to Japan, getting a translator, etc.), it might not be worthwhile.
But no one is talking about anything like a business license, or a driver's license, you idiot.
No.
The treaty you're thinking of didn't do anything to importation rights, and has required things like anticircumvention rights. (The way that the IP interests get more protection in the US without much debate here is to get our diplomats to support it, put it in treaties, to get the treaties ratified, and then Congress is told to make the necessary laws so that we can live up to our treaty obligations; it's kind of a back door)
Frankly, no copyright treaty has ever done anything good for the public, and we'd be a lot better off trashing all of them and simply adopting the idea of unilateral national treatment without minimum standards, and informal cooperation to ensure that however two countries implemented their copyright laws, they didn't conflict such that an author was forced to choose between two exclusive copyrights.
Copyrights remain national, imports remain prohibitable, and market licenses remain perfectly enforceable.
No, that one is listed on the Bruce Schneier facts page. Which doesn't mean that he needs physical strength, just that Bruce Schneier can defeat any cryptosystem with his brains or his brawn. So we're both right about what he can do.
Sure. When Bruce Schneier wants plaintext, he just squeezes out of the ciphertext with his bare hands.
I'm no fan of the Republicans, but you've gotta admit that Clinton was being pretty ridiculous. :-)
No, he wasn't being ridiculous, really, but he was being very precise in order to avoid the real issue. Given that it was a deposition and he used to be a lawyer, it shouldn't be a big surprise that he'd fall back on lawyerly habits. He had a decent, though somewhat weak point:
He was asked to explain a previous statement which was basically 'there is nothing going on between [himself and Lewinsky].'
In explaining it, he said that if you take the word 'is' literally, then he was right. Because at the time he made the statement, the affair was over, and thus couldn't be described in the present tense. OTOH, if you are using 'is' in a loose sense that is inclusive of 'was,' then he would've been lying, because at that time the affair had happened in the past, but wasn't happening any more.
Of course, everyone knew that the affair was over, so it was pretty clear that his initial statement (using 'is' in the present tense) was pretty evasive and misleading, in that he was trying to give an answer to a question that no one asked, instead of answering the question that had been put to him. The 'is' thing is just him trying to justify it, later on. He's technically correct -- the best kind of correct -- but apparently it didn't pass the laugh test. Most of the hubbub over it, however, seems to have ignored the actual context, so it just looks like ludicrous evasiveness instead of boring, ordinary evasiveness.
Just a nit, but sometimes the federal Constitution does regulate the people of the United States. For example, the 13th Amendment applies to everyone; it's just as unconstitutional for a private individual to violate that as it is for the government to.
Because the federal government refuses to give highway money to any state that doesn't set a minimum drinking age of 21. Today, all the states have capitulated, but that does not make it a federal law, because the federal government is not granted that power.
No, the federal government does have the power to spend money as it sees fit. It's known as the spending power, and is enumerated at article I, section 8, clause 1.
Maybe, but in Rocky 10, his brain will have been put into a gigantic, well-armed robot body. And then this new Mecha-Rocky will destroy his latest foe with death rays from his atom-powered eyes.
And? Frankly, we never should've signed on to Berne. It's a huge pile of shit. That said, I don't think that the protectionist policies we had way back in the 19th century were a good idea either; we should unilaterally grant everyone national treatment. But there should not be any minimum standards internationally. If one country wants to not have copyrights, then that's a perfectly valid option. Each country should decide whether copyrights generally, and what copyright policy in specific, is best for them.
Actually, the OED has an example of 'pirate' used in this meaning that dates back to 1603. Worth keeping in mind is that copyright as we know it wasn't invented until about a century later.
Its not really supposed to be. The idea is to spread the word that its illegal/wrong to infringe on copyright. That way people can't use the "i didnt know" defense.
Ignorance of the law isn't a defense. These sorts of things might have propaganda value that the copyright interests find desirable, but they really don't have any legal weight one way or the other.