No. First, mens rea is not an element of copyright infringement. Infringement is a strict liability offense. At most, mens rea is only relevant in computing damages. Second, intent to infringe is not infringement or any other offense. There must have been actual infringement to support the case. So the contents of the file are crucial to the case. If the file contents were the plaintiff's copyrighted work, then that helps the plaintiff. If not, then that helps the defendant, since there is nothing wrong with sharing a misnamed file which is otherwise lawful to share, even if it's done unwittingly.
However, so far as we can discern what the contents were based on the name, which is a jury question, it's still possible to win a suit without actually showing what the contents are. But I wouldn't like to have to do that, since it's not a strong position.
When you're trying to prove someone is guilty of a CRIME, you need to go the extra mile and make sure it's air-tight
Well, this is a civil case, so as it happens no one is trying to prove anyone guilty of any crime. I guess they dodged a bullet there.
Who's to say that the file called "Enter Sandman" wasn't really an audio clip from Aunt Milly's piano recital?
Sure. And a jury can decide which of the two possibilities is most likely to them (since that, and not the stricter 'beyond a reasonable doubt,' is the standard here), and then whichever possibility they find to be most likely is true, for the purposes of the case.
So if you were a juror, and you were being fair to both sides, and they asked you what you thought the file was based on the name, which do you think it probably would be, even if that probability was only a 51% likelihood?
Well, it may be indicative of something. It's not very good evidence, but it is evidence. The degree to which it is belivable is up to the jury. Clearly, if you were on the jury, you wouldn't believe it. But so long as a reasonable juror might believe it, there doesn't seem to be anything wrong with taking it to them. It's their job to decide this sort of thing.
Besides, even if they downloaded a file and had it, it's difficult to prove that that file came from the defendant's computer. It still largely comes down to how trustworthy a jury would find the RIAA witnesses and evidence to be.
There are three distinct, and equal interests that society has here. 1) It wants the greatest number of original works to be created and published. 2) It wants the greatest number of derivative works to be created and published. 3) It wants total freedom with regard to those works.
Copyright is an attempt to partially defer satisfaction of the latter two interests in order to cause an increase in the first interest that outweighs the cost of the deferment. That is, we try to give up a little for now, in order to get a lot in the long run; more than we'd get otherwise.
The third interest deals with your question. It is in society's interests to have knowledge spread, enjoyed, preserved, put to practical use, etc. It is good for people to be engaged in their culture. And if people can do so for no or minimal cost, they're more likely to. Unauthorized reproduction does this. It runs counter to the larger plan of copyright, which defers some immediate gratification for greater rewards in the end, however. That's really the only reason why it is objectionable. When it doesn't run counter to the plan, the work is just placed in the public domain (either in whole, or in part via the scope-limited nature of copyright) and then while the reproduction is just as unauthorized, it's totally legal.
It's not activism. But it's not immoral or anything either. It's really just counter-productive.
The difference IMO is that the ISP doesn't promote what its customer stores in any way. It doesn't profit from what is stored, it simply profits from offering the storage service whether it is used or not. YouTube can only profit from what is stored since it doesn't charge subscription fees for the storage itself.
And that's an irrelevant difference. The statute protects service providers; it doesn't care about profit. And one of the things it protects them from is vicarious infringement, where profit is actually a factor. So you just aren't making an argument for why 512(c) wouldn't apply here.
I see distinct differences between what an ISP does and what YouTube does
The thing you need to bear in mind, though, is that what you think of as an ISP isn't what the statute has in mind. The statute takes a far, far broader approach. The statute says that "the term "service provider" means a provider of online services or network access, or the operator of facilities therefor" YouTube provides an online service. Thus, it is a qualifying service provider.
Thanks for the putting the burden on me to try to figure out just what you are trying to argue. If you are well-versed in copyright law, surely you can form an argument on your own or answer a simple question.
Well, you had been looking at the statute already, which I actually found impressive. I merely thought that you were looking at the wrong part of the statute, so I didn't think it was necessary to do much else. Apparently, I was wrong about that, so I'll try to be more clear.
17 USC 512(c) is for "Information residing on systems or networks at direction of users." My feeling is that YouTube is not providing that kind of service. What YouTube does is create derivative works of user-provided content and profit by making them available to the entire internet community. The resultant works are not the user's original content and their use is not under the user's direct control. A user can restrict availability and delete the derivative works only. 17 USC 512(c) is meant for internet file storage IMO.
The statute itself is what's key, as always. 512(c) is applicable for "the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider." This differs from system caching, which is "intermediate and temporary storage of material." I would say that YouTube falls into this category. Users direct them to store material on their system, and it's not caching. That's all that it takes.
The works are not derivatives, as that word is defined in section 101. They're not bit-for-bit identical, but minor differences do not a derivative make. Also, it wouldn't matter, as there's no requirement that the work not be identical, as we'll see shortly.
There is no requirement in the statute that the material be created by the user. In fact, that would be absurd, since this statute is meant to protect ISPs from users who infringed and are dragging the ISP down with them. Nor is there a requirement that the user have control over the file, other than that he directs it to be stored; since not storing it anymore wouldn't possibly be infringing, there would be nothing for 512(c) to shelter ISPs with regards to, so there isn't even a requirement that the user be able to take it down at will in order for 512(c) to apply.
Ultimately, these are files, they're on the Internet, and so they qualify under the safe harbor meant for files put up on the Internet. 512 is extremely broad in some ways, and this is one of them.
YouTube is not offering an ISP-like service nor is it offering neutral internet storage for a user's content. Instead, YouTube is a service that takes user-contributed content, provides a means for other users to view it, and ultimately profit from the (potentially infringing) content provided.
ISPs, particularly the free, ad-supported ones, do this all the time. There's no 'neutrality' requirement, whatever that's supposed to be, in the safe harbor. And there's every protection for vicarious infringement on the part of ISPs.
It is probably true that it's not a "derivative work" but I used that term in response to the requirement "...without modification to the content of the material as sent or received"
Which is in 512(a), and not 512(c). 512(c) doesn't care if there is modification, which is not the same thing as whether or not there is a derivative, so whether the work is bit-for-bit identical, slightly modified (as is actually the case), or is a full-fledged derivative, it is irrelevant. 512(a), (b), (c), and (d) are four separate safe harbors. As long as YouTube qualifies for one of them (in practice, (b)-(d)), it is safe. It does not have to fall within all four.
So yes, it's a moot question because it is irrelevant to the discussion we're actually having.
Fine. Go take a current, new play and put on your own peformance of it. See what happens.
I would be infringing the exclusive right to publicly perform the play. But I wouldn't infringe the exclusive right to make copies of it.
The ability to do that is codified in law
Actually, adverse possession comes from common law. But until the adverse possession is complete, it's merely trespassing.
Also, I'd like you to put out a recent case.
Actually it happens all the time. I recall a funny case in my old property textbook that took place in the 80's, IIRC, where there was a series of adjoining lots along a road, and each house had accidently been built on the lot owned by the person next door (e.g. A's house on B's lot, B's house on C's lot, and so on). They all had to adversely possess the lot they lived on in order to resolve the problem.
In other words, we are no longer running around looking for plots of land which don't flood, and abandoning 'useless' land.
No, that's homesteading. Adverse possession is a way of keeping land ownership simple, in that the person who appears to be the owner is the owner. It's also a function of the statute of limitations, in that if someone is trespassing, you have a certain amount of time to bring an action against them. If you let the clock run out, you can no longer sue the person for trespass, and so they end up getting ownership of the land.
I'm willing to bet that if the holder found out you made the copies before the copyright expired and could prove it, you'd still be found guilty of infringement.
I never said I made them. Only that they were unlawfully made. I just had possession of them and sold them after the copyright expired. It's good practice, when discussing legal hypos, not to fight the hypo.
You wrote a story, you have the right to copy it, even if copyright laws never existed.
I agree. But this means that the right to make copies doesn't stem from copyright. It must come from someplace else. Which is what I've been saying -- copyright doesn't give the copyright holder the right to make copies.
This is utterly untrue, but hey, if it makes you feel better to believe it, go right ahead.
Well, the Mac got multi monitor support at least as early as spring 1987. At that time, Windows was in version 1.03. It is certainly possible that it could drive multiple monitors; I don't know. But I have to say, I think it's a little unlikely. Feel free to prove me wrong.
I can't agree, since the law defines a copy as a material object, and a performance isn't. Also, if performing was copying, why would there be different rights for copying and performing? It's a rule of statutory construction that Congress doesn't pass redundant statutes, so they must both do different things.
Not everything need be in tangible form for copyright to apply.
No, something has to be. A play has to be written down in some fashion in order to be copyrighted. If you only did improvisational theater, it would not be copyrightable.
There is no derivative right.
Hm. Well, 17 USC 106 says this:
(2) to prepare derivative works based upon the copyrighted work;
Frankly, I'm rapidly losing confidence that you have the first idea of what the hell you're talking about.
Typically you cannot sell anything that which came about through some other illegal act.
No, not at all. For example, if I trespass on your land, I can over time adversely possess it, and it becomes my land. Then I can sell it.
In copyright, if the copies are made unlawfully, but the copyright expires, there's no longer any distribution right that prevents me from selling the copies. It's fully lawful to do so, in fact.
At any rate the copyright holder does always have the right to copy anything to which they hold a copyright, which is exactly what I said originally.
And that's not true. Copyright isn't a right to make copies, it's a right to prevent other people from making copies. It's a negative right.
Creating derivatives and public performances have typically been viewed as 'making copies.' The question is if the derivative is different enough. If it is, its no longer a copy of the original. Same goes for public performances. If I sell my book, I've distributed it, but not broken copyright laws. If I make 100 exact copies of a book, I've violated copyright law even if I haven't distributed them.
No, it hasn't been. Though I will grant that there is some overuse of the word 'copying' in various infringement tests, even when a court acknowledges that the reproduction right isn't at issue.
Regarding derivatives, if it's not very different, it's a mere copy, and the reproduction right is infringed. If it's sufficiently different, it's a derivative, and the derivative right is infringed. Only if it is seriously different can a later work based on an earlier work be neither a copy nor a derivative.
If I make 100 exact copies of a book, I've violated copyright law even if I haven't distributed them.
And if you obtain 100 unlawfully made copies of a book, you haven't made any copies, and thus haven't infringed. Mere possession of the copies isn't infringing. But if you sell them, you're distributing them, and then you have infringed.
Copying an illegal image is not illegal. If you think it is, please point out the law which makes it so.
Just because a work is rarely reproduced because it is libelous, for example, that doesn't mean that there isn't a copyright on it. Since there is no law that terminates a copyright for a work merely because it is unpublishable, the copyright holder still can come after you, just as he could with any other work of his.
At any rate, if one can create an original, they most certainly can create copies.
We're talking about the right to do so, not the mere ability.
the design of the car may be (and probably is) copyrighted indeed
Actually I think that it probably wouldn't be, since it would be a sculptural work, and the utility doctrine would apply. Maybe it would work for some cars, e.g. the Weinermobile.
Painting is a little more than just applying some brushstrokes against canvas;
It's not easy. It's easier than coming up with the painting and executing it, but it's still not easy.
If they're going to get sued, it's either because they have failed to adequately use the 512 safe harbor, or there is some theory the suit is based on that gets around it. Neither seems very likely to me, but you never know.
Many cars have computers, and those computers have software. Also creative nonfunctional elements which could appear in paint jobs, seat fabric, etc.
If all works of art (using the broad term here) were impossible or prohibitively impractical/expensive to copy, copyright law would never have existed because there simply wouldn't be any need for it.
I disagree. For example, paintings became copyrightable prior to the development of photography. There's never been a magic technology that allows copying to occur more easily for infringers than for copyright holders. At most there is parity between them, which means it would be exactly as easy for the copyright holder to make a copy as it would be for anyone else. Often economies of scale favor the copyright holder, actually. One more CD made at the factory is much cheaper than if I burn one on a CDR.
Every time you play a CD, you're using the encoded pattern to copy the sound of the original recording. Doesn't copyright law forbid this copy? If so, why not?
There is no exclusive right under copyright regarding mere performance of the CD. There is an exclusive right to make copies, but copies are defined as material objects in which the work is fixed, and from which the work can be perceived. This would basically have to be a memory buffer for the CD drive, if anything. But using a CD player to merely play a CD is likely to be: 1) de minimis infringement, and therefore effectively non-infringing, so copyright isn't relevant; 2) a fair use, when analyzed under the four-factor test, which would make it non-infringing, or; 3) permitted by the copyright holder under an implied license. Of course, there's also the fourth possibility: that a court wouldn't apply the MAI rule to this set of circumstances, finding some way to distinguish a general purpose computer from the very limited purpose electronics in a CD player, for example, resulting in none of the exclusive rights being invoked to begin with. MAI has been getting some criticism lately, you know.
It's a valid question to ask why you're allowed (assuming you're allowed) to listen to a CD at all, and under which circumstances it's legal to do so.
No, it is not. The default rule is that all that is not prohibited is allowed. So the question is why you shouldn't be allowed to listen to a CD. The presumption is that you can. Copyright holders have the job of showing why not. And if they never bother to raise the question, who cares?
It doesn't though. All arguments about copyright have been about whether copyrights were violated.
No. For example, Eldred dealt with whether a specific law was constitutional, without any copyright infringement having occurred.
But what I meant was that copyright deals with more than just copying. It also deals with creating derivatives, distribution, public performance, etc.
Perhaps you missed the part where I said "only."
No. You said that only the copyright holder has the right to make copies.
I'm saying that the copyright holder might hold a valid copyright, and thus might be able to prevent other people from making copies, but that the copyright does not confer upon him a right to make copies, so he might not be allowed to make copies of his own copyrighted work.
Copyright is the right to prevent other people from doing things. It is not a right to actually do anything oneself, or to allow other people to do things.
At any rate, adding these topics to the mix adds nothing to this discussion. It actually detracts from it.
They're just examples of how someone with a copyright might be prevented from making copies, illustrating how copyright is not a right to make copies.
They won't even bother. No one does. ISPs use statutory provisions (e.g. 17 USC 512) to protect themselves. There was never any conclusion on common carrier status for ISPs, and so long as there are statutes that provide safe harbors without having to answer the common carrier question, there never will be any conclusion.
We must never forget the purpose of copyright laws. They are there to promote the useful arts.
I agree that we shouldn't forget, and in fact, we should craft the laws to best fulfill their purpose. But copyright has nothing at all to do with the useful arts. Copyright is meant to promote science; patents promote the useful arts.
Remember, the Constitution was written in the late 18th century, and English is a very dynamic language. But their meaning still shows in the structure of the clause (which always goes copyright/patent), in historic definitions (check your OED), in vestigal terminology, like 'state of the art technology' or 'prior art' or 'a person having ordinary skill in the art,' etc.
And the strange thing about that is that, for example, ISPs are okay as long as they _don't_ try to filter unlawful content (and spam, malware, etc.), because if they did filter, they'd be responsible for anything that got through.
That's not true, and in fact, plenty of ISPs do filter. There was no consensus as to whether ISPs are common carriers before a few laws came in to shield them regardless, such as 17 USC 512 or 47 USC 230.
The Grokster case set a nice precedent in that a company must at least try to comply with copyright law.
No, that's not what it said. Of course, all copyright cases can be read as requiring that. The trick is what constitutes compliance. Grokster simply said that a party is liable if they induce others to engage in copyright infringement. Failure to thoroughly police wouldn't show inducement. That goes more toward vicarious liability, if it matters at all.
Statutory law should be simple. The courts and set precedents (common law) are the complex part of it - or should be.
Well, since the common law is just as much part of the law as statutes are, and just as binding, you're still saying that the law ought to be complex. Which means that when you complain about hav[ing] an attorney for every single legal maneuver that is ever carried out, that would not change.
I think that you're still not thinking out your idea, which is why it's been so bad.
But in my opinion it is OVERLY complex largely due to attorneys writing the law (thus guaranteeing that they'll always be in demand for their services), and influence from special interests to form loopholes and regulations in their favor.
And as I said, whether that complexity springs from the courts, the Congress, or both, it's still there, so what's the point in favoring one kind over another? Sure, something like 119 is a pain in the ass. But then, so are the tests for whether a useful element of a pictoral, graphic, or sculptural work is seperable.
Also, lawyers writing the law don't make things complex in order to have job protection. That's as stupid an idea as saying that people seriously program in Intercal. The laws are written as they are in order to do certain specific things. The language must be precise, and if you have a lot of things it needs to do, they all add yet more complexity. It's not a big conspiracy, as Occam's Razor would suggest.
There are influences from special interests, but our concern there ought to be having the law favor private interests over the public interest, not mere complexity in the statutes. That's like getting your arm crushed in a machine and worrying if you've broken a nail.
Let me ask this. Would you like the auto exucetives to determine traffic laws? Thats the best analogy I can think of after the few drinks I have had.
In conjunction with the road engineers (since both make essential things for traffic), I wouldn't have the world's biggest problem with it. Do you think they'd promote crashes or something?
Slashdot Mirror
What if the RIAA copyrighted the junk files it's paying people to distribute?
It would depend on what the file consisted of, but it's entirely possible.
No. First, mens rea is not an element of copyright infringement. Infringement is a strict liability offense. At most, mens rea is only relevant in computing damages. Second, intent to infringe is not infringement or any other offense. There must have been actual infringement to support the case. So the contents of the file are crucial to the case. If the file contents were the plaintiff's copyrighted work, then that helps the plaintiff. If not, then that helps the defendant, since there is nothing wrong with sharing a misnamed file which is otherwise lawful to share, even if it's done unwittingly.
However, so far as we can discern what the contents were based on the name, which is a jury question, it's still possible to win a suit without actually showing what the contents are. But I wouldn't like to have to do that, since it's not a strong position.
When you're trying to prove someone is guilty of a CRIME, you need to go the extra mile and make sure it's air-tight
Well, this is a civil case, so as it happens no one is trying to prove anyone guilty of any crime. I guess they dodged a bullet there.
Who's to say that the file called "Enter Sandman" wasn't really an audio clip from Aunt Milly's piano recital?
Sure. And a jury can decide which of the two possibilities is most likely to them (since that, and not the stricter 'beyond a reasonable doubt,' is the standard here), and then whichever possibility they find to be most likely is true, for the purposes of the case.
So if you were a juror, and you were being fair to both sides, and they asked you what you thought the file was based on the name, which do you think it probably would be, even if that probability was only a 51% likelihood?
Well, it may be indicative of something. It's not very good evidence, but it is evidence. The degree to which it is belivable is up to the jury. Clearly, if you were on the jury, you wouldn't believe it. But so long as a reasonable juror might believe it, there doesn't seem to be anything wrong with taking it to them. It's their job to decide this sort of thing.
Besides, even if they downloaded a file and had it, it's difficult to prove that that file came from the defendant's computer. It still largely comes down to how trustworthy a jury would find the RIAA witnesses and evidence to be.
There are three distinct, and equal interests that society has here. 1) It wants the greatest number of original works to be created and published. 2) It wants the greatest number of derivative works to be created and published. 3) It wants total freedom with regard to those works.
Copyright is an attempt to partially defer satisfaction of the latter two interests in order to cause an increase in the first interest that outweighs the cost of the deferment. That is, we try to give up a little for now, in order to get a lot in the long run; more than we'd get otherwise.
The third interest deals with your question. It is in society's interests to have knowledge spread, enjoyed, preserved, put to practical use, etc. It is good for people to be engaged in their culture. And if people can do so for no or minimal cost, they're more likely to. Unauthorized reproduction does this. It runs counter to the larger plan of copyright, which defers some immediate gratification for greater rewards in the end, however. That's really the only reason why it is objectionable. When it doesn't run counter to the plan, the work is just placed in the public domain (either in whole, or in part via the scope-limited nature of copyright) and then while the reproduction is just as unauthorized, it's totally legal.
It's not activism. But it's not immoral or anything either. It's really just counter-productive.
The difference IMO is that the ISP doesn't promote what its customer stores in any way. It doesn't profit from what is stored, it simply profits from offering the storage service whether it is used or not. YouTube can only profit from what is stored since it doesn't charge subscription fees for the storage itself.
And that's an irrelevant difference. The statute protects service providers; it doesn't care about profit. And one of the things it protects them from is vicarious infringement, where profit is actually a factor. So you just aren't making an argument for why 512(c) wouldn't apply here.
I see distinct differences between what an ISP does and what YouTube does
The thing you need to bear in mind, though, is that what you think of as an ISP isn't what the statute has in mind. The statute takes a far, far broader approach. The statute says that "the term "service provider" means a provider of online services or network access, or the operator of facilities therefor" YouTube provides an online service. Thus, it is a qualifying service provider.
Thanks for the putting the burden on me to try to figure out just what you are trying to argue. If you are well-versed in copyright law, surely you can form an argument on your own or answer a simple question.
Well, you had been looking at the statute already, which I actually found impressive. I merely thought that you were looking at the wrong part of the statute, so I didn't think it was necessary to do much else. Apparently, I was wrong about that, so I'll try to be more clear.
17 USC 512(c) is for "Information residing on systems or networks at direction of users." My feeling is that YouTube is not providing that kind of service. What YouTube does is create derivative works of user-provided content and profit by making them available to the entire internet community. The resultant works are not the user's original content and their use is not under the user's direct control. A user can restrict availability and delete the derivative works only. 17 USC 512(c) is meant for internet file storage IMO.
The statute itself is what's key, as always. 512(c) is applicable for "the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider." This differs from system caching, which is "intermediate and temporary storage of material." I would say that YouTube falls into this category. Users direct them to store material on their system, and it's not caching. That's all that it takes.
The works are not derivatives, as that word is defined in section 101. They're not bit-for-bit identical, but minor differences do not a derivative make. Also, it wouldn't matter, as there's no requirement that the work not be identical, as we'll see shortly.
There is no requirement in the statute that the material be created by the user. In fact, that would be absurd, since this statute is meant to protect ISPs from users who infringed and are dragging the ISP down with them. Nor is there a requirement that the user have control over the file, other than that he directs it to be stored; since not storing it anymore wouldn't possibly be infringing, there would be nothing for 512(c) to shelter ISPs with regards to, so there isn't even a requirement that the user be able to take it down at will in order for 512(c) to apply.
Ultimately, these are files, they're on the Internet, and so they qualify under the safe harbor meant for files put up on the Internet. 512 is extremely broad in some ways, and this is one of them.
YouTube is not offering an ISP-like service nor is it offering neutral internet storage for a user's content. Instead, YouTube is a service that takes user-contributed content, provides a means for other users to view it, and ultimately profit from the (potentially infringing) content provided.
ISPs, particularly the free, ad-supported ones, do this all the time. There's no 'neutrality' requirement, whatever that's supposed to be, in the safe harbor. And there's every protection for vicarious infringement on the part of ISPs.
It is probably true that it's not a "derivative work" but I used that term in response to the requirement "...without modification to the content of the material as sent or received"
Which is in 512(a), and not 512(c). 512(c) doesn't care if there is modification, which is not the same thing as whether or not there is a derivative, so whether the work is bit-for-bit identical, slightly modified (as is actually the case), or is a full-fledged derivative, it is irrelevant. 512(a), (b), (c), and (d) are four separate safe harbors. As long as YouTube qualifies for one of them (in practice, (b)-(d)), it is safe. It does not have to fall within all four.
So yes, it's a moot question because it is irrelevant to the discussion we're actually having.
Fine. Go take a current, new play and put on your own peformance of it. See what happens.
I would be infringing the exclusive right to publicly perform the play. But I wouldn't infringe the exclusive right to make copies of it.
The ability to do that is codified in law
Actually, adverse possession comes from common law. But until the adverse possession is complete, it's merely trespassing.
Also, I'd like you to put out a recent case.
Actually it happens all the time. I recall a funny case in my old property textbook that took place in the 80's, IIRC, where there was a series of adjoining lots along a road, and each house had accidently been built on the lot owned by the person next door (e.g. A's house on B's lot, B's house on C's lot, and so on). They all had to adversely possess the lot they lived on in order to resolve the problem.
In other words, we are no longer running around looking for plots of land which don't flood, and abandoning 'useless' land.
No, that's homesteading. Adverse possession is a way of keeping land ownership simple, in that the person who appears to be the owner is the owner. It's also a function of the statute of limitations, in that if someone is trespassing, you have a certain amount of time to bring an action against them. If you let the clock run out, you can no longer sue the person for trespass, and so they end up getting ownership of the land.
I'm willing to bet that if the holder found out you made the copies before the copyright expired and could prove it, you'd still be found guilty of infringement.
I never said I made them. Only that they were unlawfully made. I just had possession of them and sold them after the copyright expired. It's good practice, when discussing legal hypos, not to fight the hypo.
You wrote a story, you have the right to copy it, even if copyright laws never existed.
I agree. But this means that the right to make copies doesn't stem from copyright. It must come from someplace else. Which is what I've been saying -- copyright doesn't give the copyright holder the right to make copies.
This is utterly untrue, but hey, if it makes you feel better to believe it, go right ahead.
Well, the Mac got multi monitor support at least as early as spring 1987. At that time, Windows was in version 1.03. It is certainly possible that it could drive multiple monitors; I don't know. But I have to say, I think it's a little unlikely. Feel free to prove me wrong.
That is correct, there were 10 slots ... if you're counting in base 6.
I can't agree, since the law defines a copy as a material object, and a performance isn't. Also, if performing was copying, why would there be different rights for copying and performing? It's a rule of statutory construction that Congress doesn't pass redundant statutes, so they must both do different things.
Not everything need be in tangible form for copyright to apply.
No, something has to be. A play has to be written down in some fashion in order to be copyrighted. If you only did improvisational theater, it would not be copyrightable.
There is no derivative right.
Hm. Well, 17 USC 106 says this:
Frankly, I'm rapidly losing confidence that you have the first idea of what the hell you're talking about.
Typically you cannot sell anything that which came about through some other illegal act.
No, not at all. For example, if I trespass on your land, I can over time adversely possess it, and it becomes my land. Then I can sell it.
In copyright, if the copies are made unlawfully, but the copyright expires, there's no longer any distribution right that prevents me from selling the copies. It's fully lawful to do so, in fact.
At any rate the copyright holder does always have the right to copy anything to which they hold a copyright, which is exactly what I said originally.
And that's not true. Copyright isn't a right to make copies, it's a right to prevent other people from making copies. It's a negative right.
Well, I'm looking at 17 USC 512(c), and I'd guess that YouTube is a service provider as that term is defined at 17 USC 512(k)(1)(B).
You're looking at the wrong definition -- at (k)(1)(A) -- and probably the wrong of the four safe harbors within 512.
Creating derivatives and public performances have typically been viewed as 'making copies.' The question is if the derivative is different enough. If it is, its no longer a copy of the original. Same goes for public performances. If I sell my book, I've distributed it, but not broken copyright laws. If I make 100 exact copies of a book, I've violated copyright law even if I haven't distributed them.
No, it hasn't been. Though I will grant that there is some overuse of the word 'copying' in various infringement tests, even when a court acknowledges that the reproduction right isn't at issue.
Regarding derivatives, if it's not very different, it's a mere copy, and the reproduction right is infringed. If it's sufficiently different, it's a derivative, and the derivative right is infringed. Only if it is seriously different can a later work based on an earlier work be neither a copy nor a derivative.
If I make 100 exact copies of a book, I've violated copyright law even if I haven't distributed them.
And if you obtain 100 unlawfully made copies of a book, you haven't made any copies, and thus haven't infringed. Mere possession of the copies isn't infringing. But if you sell them, you're distributing them, and then you have infringed.
Copying an illegal image is not illegal. If you think it is, please point out the law which makes it so.
Just because a work is rarely reproduced because it is libelous, for example, that doesn't mean that there isn't a copyright on it. Since there is no law that terminates a copyright for a work merely because it is unpublishable, the copyright holder still can come after you, just as he could with any other work of his.
At any rate, if one can create an original, they most certainly can create copies.
We're talking about the right to do so, not the mere ability.
the design of the car may be (and probably is) copyrighted indeed
Actually I think that it probably wouldn't be, since it would be a sculptural work, and the utility doctrine would apply. Maybe it would work for some cars, e.g. the Weinermobile.
Painting is a little more than just applying some brushstrokes against canvas;
It's not easy. It's easier than coming up with the painting and executing it, but it's still not easy.
If they're going to get sued, it's either because they have failed to adequately use the 512 safe harbor, or there is some theory the suit is based on that gets around it. Neither seems very likely to me, but you never know.
No, that's patented, not copyrighted.
Many cars have computers, and those computers have software. Also creative nonfunctional elements which could appear in paint jobs, seat fabric, etc.
If all works of art (using the broad term here) were impossible or prohibitively impractical/expensive to copy, copyright law would never have existed because there simply wouldn't be any need for it.
I disagree. For example, paintings became copyrightable prior to the development of photography. There's never been a magic technology that allows copying to occur more easily for infringers than for copyright holders. At most there is parity between them, which means it would be exactly as easy for the copyright holder to make a copy as it would be for anyone else. Often economies of scale favor the copyright holder, actually. One more CD made at the factory is much cheaper than if I burn one on a CDR.
Every time you play a CD, you're using the encoded pattern to copy the sound of the original recording. Doesn't copyright law forbid this copy? If so, why not?
There is no exclusive right under copyright regarding mere performance of the CD. There is an exclusive right to make copies, but copies are defined as material objects in which the work is fixed, and from which the work can be perceived. This would basically have to be a memory buffer for the CD drive, if anything. But using a CD player to merely play a CD is likely to be: 1) de minimis infringement, and therefore effectively non-infringing, so copyright isn't relevant; 2) a fair use, when analyzed under the four-factor test, which would make it non-infringing, or; 3) permitted by the copyright holder under an implied license. Of course, there's also the fourth possibility: that a court wouldn't apply the MAI rule to this set of circumstances, finding some way to distinguish a general purpose computer from the very limited purpose electronics in a CD player, for example, resulting in none of the exclusive rights being invoked to begin with. MAI has been getting some criticism lately, you know.
It's a valid question to ask why you're allowed (assuming you're allowed) to listen to a CD at all, and under which circumstances it's legal to do so.
No, it is not. The default rule is that all that is not prohibited is allowed. So the question is why you shouldn't be allowed to listen to a CD. The presumption is that you can. Copyright holders have the job of showing why not. And if they never bother to raise the question, who cares?
Well, if you get a court order to enforce a civil judgment, and it's ignored, it's possible to be found in contempt and jailed.
Also, just wait until you can say that you are a lawyer, but that it's not legal advice.
It doesn't though. All arguments about copyright have been about whether copyrights were violated.
No. For example, Eldred dealt with whether a specific law was constitutional, without any copyright infringement having occurred.
But what I meant was that copyright deals with more than just copying. It also deals with creating derivatives, distribution, public performance, etc.
Perhaps you missed the part where I said "only."
No. You said that only the copyright holder has the right to make copies.
I'm saying that the copyright holder might hold a valid copyright, and thus might be able to prevent other people from making copies, but that the copyright does not confer upon him a right to make copies, so he might not be allowed to make copies of his own copyrighted work.
Copyright is the right to prevent other people from doing things. It is not a right to actually do anything oneself, or to allow other people to do things.
At any rate, adding these topics to the mix adds nothing to this discussion. It actually detracts from it.
They're just examples of how someone with a copyright might be prevented from making copies, illustrating how copyright is not a right to make copies.
They won't even bother. No one does. ISPs use statutory provisions (e.g. 17 USC 512) to protect themselves. There was never any conclusion on common carrier status for ISPs, and so long as there are statutes that provide safe harbors without having to answer the common carrier question, there never will be any conclusion.
We must never forget the purpose of copyright laws. They are there to promote the useful arts.
I agree that we shouldn't forget, and in fact, we should craft the laws to best fulfill their purpose. But copyright has nothing at all to do with the useful arts. Copyright is meant to promote science; patents promote the useful arts.
Remember, the Constitution was written in the late 18th century, and English is a very dynamic language. But their meaning still shows in the structure of the clause (which always goes copyright/patent), in historic definitions (check your OED), in vestigal terminology, like 'state of the art technology' or 'prior art' or 'a person having ordinary skill in the art,' etc.
IANAL, but I believe that US copyright law allows for punitive damages, that is damages that are intended to serve as a punishment.
No, it does not.
And the strange thing about that is that, for example, ISPs are okay as long as they _don't_ try to filter unlawful content (and spam, malware, etc.), because if they did filter, they'd be responsible for anything that got through.
That's not true, and in fact, plenty of ISPs do filter. There was no consensus as to whether ISPs are common carriers before a few laws came in to shield them regardless, such as 17 USC 512 or 47 USC 230.
The Grokster case set a nice precedent in that a company must at least try to comply with copyright law.
No, that's not what it said. Of course, all copyright cases can be read as requiring that. The trick is what constitutes compliance. Grokster simply said that a party is liable if they induce others to engage in copyright infringement. Failure to thoroughly police wouldn't show inducement. That goes more toward vicarious liability, if it matters at all.
Statutory law should be simple. The courts and set precedents (common law) are the complex part of it - or should be.
Well, since the common law is just as much part of the law as statutes are, and just as binding, you're still saying that the law ought to be complex. Which means that when you complain about hav[ing] an attorney for every single legal maneuver that is ever carried out, that would not change.
I think that you're still not thinking out your idea, which is why it's been so bad.
But in my opinion it is OVERLY complex largely due to attorneys writing the law (thus guaranteeing that they'll always be in demand for their services), and influence from special interests to form loopholes and regulations in their favor.
And as I said, whether that complexity springs from the courts, the Congress, or both, it's still there, so what's the point in favoring one kind over another? Sure, something like 119 is a pain in the ass. But then, so are the tests for whether a useful element of a pictoral, graphic, or sculptural work is seperable.
Also, lawyers writing the law don't make things complex in order to have job protection. That's as stupid an idea as saying that people seriously program in Intercal. The laws are written as they are in order to do certain specific things. The language must be precise, and if you have a lot of things it needs to do, they all add yet more complexity. It's not a big conspiracy, as Occam's Razor would suggest.
There are influences from special interests, but our concern there ought to be having the law favor private interests over the public interest, not mere complexity in the statutes. That's like getting your arm crushed in a machine and worrying if you've broken a nail.
Let me ask this. Would you like the auto exucetives to determine traffic laws? Thats the best analogy I can think of after the few drinks I have had.
In conjunction with the road engineers (since both make essential things for traffic), I wouldn't have the world's biggest problem with it. Do you think they'd promote crashes or something?