Of course, there's nothing sacrosanct -- or even tolerable -- about the Berne Convention. Getting the US out of it, and other international copyright treaties, is on my agenda.
In any event, your argument is wrong. It is not the government's job to enforce the law, so much as it is the government's job to create and enforce laws for the benefit of the people. If the people are better served by different laws, then it is the government's duty to change the laws accordingly, not to enforce the bad laws.
Well, then what if we cut them out as middlemen. People could pay production companies directly (e.g. you'd have an HBO bill, and a Showtime bill, etc., rather than a single cable bill), and cable companies would simply sell bandwidth.
Of course, do bear in mind that one entirely reasonable and acceptable answer is to allow people to freeload, and to have fewer shows get created. Copyright is meant to serve the overall public interest, and both freeloading and having more shows are equally in the public interest. We just have to decide on the relative proportions that serve us best overall.
I am curious to know where you practice law so that I might hire you if I ever need to.
Massachusetts.
I think what he meant is that the artists, the ones who actually compose and perform their works, are not the ones being represented here. This is generally viewed as being not only unfair and disingenous, but against the spirit of copyright. This problem is not necessarily a problem of copyright, but is compounded by the fact that copy rights are transferable. One of the solutions I have seen that I would favor would be to reverse the ruling that corporations are people, and make copyrights only ownable by individuals, and non-transferable. That way the power is shifted towards the actual creators, and more closely respects the original intent of copyright (IMO).
I disagree. Ever since day one, copyright law has treated copyrights as being alienable. Copyright holders have always been free to sell or give their copyrights to others.
For example, here is an excerpt from the 1790 Copyright Act, which was the first United States copyright law.
[T]he author and authors of any map, chart, book or books already printed within these United States... and any other person or persons... who [hold] or have purchased or legally acquired the copyright of any such map, chart, book or books, in order to print, reprint, publish or vend the same, shall have the sole right and liberty of printing, reprinting, publishing and vending....
Really, I don't see why this is bad. Since no one can generally force an author to sell his copyright, it's always his choice. If he makes a dumb choice, then I'm prepared to let him. After all, copyright law is not meant to help or protect authors. It is meant to help the public. Part of how it helps the public -- not the only or most important part, mind you -- is to encourage authors to create original works. If authors are encouraged to create these works with a conveyable copyright, then that's great. The only reason for having non-conveyable copyrights would be if they were better for the public, in that they encouraged authors more, and/or had fewer effects harmful to the public.
I'm unconvinced that they'd be better. Particularly since exclusive licensing could accomplish exactly the same end result (but in a more complicated and costly manner, thus not helping anyone) and statutorially nonexclusive licensing would likely diminish the economic value of copyrights, and thus diminish their efficacy as incentives for authors, and so diminish the net public good that copyrights accomplish.
It seems to me that they're basically proposed as a way -- which would certainly be totally ineffective -- of sticking it to publishers et al. That's not something that should go into making good copyright policy.
one is not allowed to represent oneself in anything but small claims and criminal court.
That's incorrect. People can always go to court pro se. Criminal cases are unique in that defendants may be provided with lawyers by the government if they don't have a lawyer of their own. That is not the case in civil suits. Of course, I would never advise anyone to represent themselves, even though they have a right to in every court.
Is going to court expensive so that it discourages people wasting the court's time and instead encourages outside settlements wherever possible?
No. In fact, court costs and fees are actually pretty cheap. And if you have financial problems, they can be reduced or waived upon a showing of need. Everyone has a right to go to court, at the end of the day. It's not just for those that can afford it.
What's expensive are lawyers. But our fees are basically determined by the market. They're not inflated for some sort of policy reason. Like everyone else, we charge what we can get, and deal with competition from our peers.
That said, courts do like to have litigants go to mediation before trial
And that might make for an interesting breach of warranty suit, but it still wouldn't keep the patent from being in force.
Hmm. The doctrine of fair use seamed quite resonable to me: aren't there four basic principles that define a use as fair? Personal use of a copy of the whole, excerpts for critical review, educational use, and lack of commercial incentive (the latter driving my views on patents).
Not all noncommercial uses by natural persons will be fair uses. While I wholeheartedly support fair use, it's silly to rely exclusively upon it. We need a panoply of exceptions, including fair use, as part of a good copyright law.
As for fair use itself, really a fair use is whatever is fair but otherwise infringing. There are four factors that can indicate that a use is likely fair (and additional factors can be considered) but they are really just used as tests to see if it's fair, not to define it.
They are 1) the purpose and character of the use (e.g. commercial, educational, personal, transformative, nontransformative, etc.); 2) the nature of the work (i.e. factual or creative); 3) the amount and substantiality of the work used (i.e. how much, and how important a part, was used) and; 4) the effect of the use upon the actual or potential market for the work.
There are no blanket fair uses. Not all parodies, or educational uses, or quotes, etc. are fair. And some commercial uses that use a lot of a work are fair. It's totally dependant on the circumstances. Many times it can go either way. That's why we need clearly defined exceptions that are not fair use, and we also need fair use in order to fill in the gaps.
Now, as a libertarian, I have no problem with an explicit contract regarding some of the restrictions in 1201 regarding fair use
I do have a problem with that. First, adhesive contracts (i.e. non-negotiable contracts, such as EULAs or most preprinted form contracts) are widely abused these days. Merely being express and written isn't protective enough of most parties, particularly given the extreme disparity in negotiating positions.
Second, in many cases, copyright policy should win over contracts. If we allow total freedom to contract, private fiefdoms of copyright law will be established which are contrary to public policy and law. For example, imagine a contract in which you forfeited your right to resell the copy later. In limited cases -- e.g. copies submitted to reviewers, or private betas -- contracts might be acceptable, if they didn't go too far. But there are limits.
Apparently, at the time, they thought it was a good idea. But when they tried it, it turned out that pretty much everyone ignored it. And there was enough money in it, and it was unobjectionable enough, that it wasn't hard to bribe most law enforcement, so that the bootleggers could continue operating.
There's an in-built assumption that going to court is "a good thing" in the above statement, and a representation of the alternative system as "more dangerous", an emotive term. I would suggest that it simply encourages more people to come to an agreement outside of a court-room in the UK; that when no agreement is forthcoming a court-case is a perfectly acceptable solution, but that other routes ought to be pursued first.
No, you're misunderstanding me. Resolving disputes is a good thing, whether it happens in court or not. I don't mind alternatives, and within reason they're not worse (though there have been abuses related to arbitration), so long as court remains as a final, viable option. We too encourage people to take care of their disputes before they get to court, but there's no discouragement vis-a-vis court either. That, I think is the difference.
Perhaps (*because* it's a last-resort) there is more money (relatively speaking) to support those who *need* to go to court to resolve something...
Maybe, but I think that it's because legal aid tries to help out those who are too poor to ever have a chance of affording a lawyer, and even then, largely in cases that are really important, such as keeping them from getting evicted or helping them get through bankruptcy. You could throw a lot of money at legal aid before you'd see them significantly expand who they represent and what they do.
If I take a DVD that is mine and I read it into my PC's memory and in memory I encrypt using a key that is unknown to me, and then store the resulting output on a disk, is that copying, under law? If I do that, but use a key unknown to me that is so short that I could then brute force it at a later date, have I broken the law?
Yes. For more on this, read 17 USC sections 501, 106(1), the definition of a copy at 101, and the infamous case of MAI v. Peak, 991 F.2d 511 (9th Cir. 1993). So long as it can be read and it's fixed, it's a copy. It doesn't really matter if you can't read it yet. If it was completely unrecoverable, then I suppose it wouldn't be a copy, but I wouldn't bet the farm on it.
Also, n.b. that as a rule, courts don't like people who try to act clever in order to get around the law. Most people in the system are going to be pretty smart too, they're going to see what you're trying to do, and they're going to prevent it by not acting in a fashion that lets you exploit the system. The judicial system isn't like a computer.
If the case is not entirely without merit, then why shouldn't you go to court with it? Oh, there might be better alternatives which also should be available, but it would be perfectly acceptable to go to court. Since there is some merit to the case, there must be a real, credible dispute. If you're on the losing side, then that's fine; half of everyone is. But you shouldn't be punished by having to pick up the other guy's bill.
there is such a thing as legal-aid
We also have this, and some other sources of pro bono representation. But not enough to go around. They're usually preoccupied with minor cases for indigent clients. A loser pays rule would harm more people than pro bono lawyers could possibly help.
a no-win,no-fee basis
Contingency fees are available here, but obviously only for plaintiffs. A defendant isn't trying to be awarded anything, and so there'd be no award for the fees to be paid out of. Plus, lawyers won't agree to that sort of fee (the lawyer and client both have to agree to it) unless they think it's better for them than a regular hourly or flat fee.
There is also binding arbitration, and the small-claims court
We also have these.
And there *are* a lot less lawsuits.
And since it appears that the main difference is the loser pays rule, and that British society is probably no better or worse than American society, that implies that a lot of fair, perfectly meritorious cases are going untried because of the dangers of the loser pays rule. That's why I don't like it; it's unfair.
I think it is absurd that I can have a right to watch the content on a DVD that I purchased, but not in the manner of my choosing.
Re: 1201 et al, I agree. Re: patents, while I am against software patents for other reasons, I generally disagree with you. Patents and copyrights are on equal footing; it's not like trademarks, which are subservient to both. One blocking the other is a perfectly ordinary and acceptable situation.
I mean, imagine inventing the record player, patenting it, but having that patent not apply to people who want to build record players so that the players can play records. What the hell good would the patent be?
Maybe a personal use exception for patents is more what you're looking for. I've long supported a personal use exception for copyrights (i.e. natural persons acting noncommercially could do anything and not infringe), so perhaps something like that.
the immaturity of case law when all these areas of IP law intersect in potentially contradictory ways.
Oh, it's not immature. It's just out of line with the expectations of laypeople. I think this is a big problem, so long as laypeople are involved (hence my suggestion to have these laws stop applying to them in ordinary circumstances). But there's no real immaturity. It's just crappy laws. Get Congress to fix these laws, and things will improve significantly.
The Constitution of the United States is pretty clear on this: the copyright of a work is secured to the authors for the purpose of advancing useful arts and sciences. The MPAA is not an author. It is not even a person.
Actually, copyright is for promoting the progress of science. Patents promote the progress of the useful arts.
Anyway, MPAA is an organization representing its members. If Sony or Disney didn't want MPAA to do this, then they would do it themselves. But they're happy to have MPAA deal with these issues for them. So your point is irrelevant.
I would say that 99% of the MPAA lawsuits are invalid.
Yeah, you're pretty certainly wrong on that.
The MPAA seems very keen on getting people to settle quickly and it is much easier for people to settle, even if the amount is extortionary, because the lawyers one might secure for a successful defense cost more than the multi-thousand dollar "fine" the MPAA wants.
Everyone in the law likes a good, quick settlement. It's usually a lot more convenient for everyone than going to court. But this isn't a money-maker for MPAA. The movie studios make hundreds of millions of dollars annually. These suits are chickenfeed to them. They're just meant to discourage people from infringing.
Since none of these lawsuits has yet made it to trial, it has not been determined whether or not any laws have been broken or even if those laws themselves are valid.
This is just dumb. There are interesting constitutional challenges to some copyright laws, but the ordinary MPAA case involves none of them. If you want to fix copyright law, you need to go through Congress. The courts are not really able to do so, and are not going to do so since it is not broken in any way that is relevant for them. Bad laws that are constitutional will be upheld by the courts.
On the other hand, if no one respects copyright, it would be somewhat similar to no one respecting physical property rights.
There is an alternative, you know.
No one respected Prohibition. And that disrespect led to disrespect for laws that were actually important, it led to support for organized crime, etc.
The appropriate thing to do here is to legalize otherwise infringing acts, if they're engaged in by natural persons, noncommercially. Thus, Alice and Bob could share files with one another and it would be lawful. But Bob couldn't sell copies to Carol, DaveCo couldn't sell copies in its stores, and the Eve Charitable Organization couldn't give away copies for free even in pursuit of its charitable mission.
Personally, I think that legalization is the way to go. Copyright can remain vital in the commercial and non-natural person areas, but ordinary people should never have to care about it in their day to day affairs. We wouldn't try to alter their behavior, but would instead try to live with it, which is important since 1) the law should serve them; and 2) they'll do it anyway.
why are they allowed to sue a teenager for tens to hundreds of thousands of dollars for a song that costs $1 on itunes, or a movie that costs $7 at Best Buy?
Because Congress said that they can. See 17 USC 504 for how that works.
This should be a case in small claims court.
Yeesh, no. Exclusive federal jurisdiction is a good thing. Maybe if we were to create a federal small claims court, but that would be a little odd. Certainly it would take some of the prestige out of being an Art. III judge.
If Hogan can get a judge to say "ip adresses and a bittorrent log is not enough evidence to prove your claim," everyone else who gets a letter can get a cheap lawyer to easily argue that point.
Why wouldn't that be enough? The standards of proof in these cases is really low. So long as it is simply more likely that it was him, rather than someone else, then it was him. A small chance that it could be someone else via an open WAP or whatever isn't good enough. Whatever is most probable (i.e. whatever is 51% most likely to be the case) is what is accepted as true.
Who mostly uses your IP address? You. Who probably downloaded something that went through that address? You. Oh, it could be a wardriver, maybe, but probably not. And 'probably' is the magic word here.
I don't know if Hogan would be able to demand that information in a counter-suit
I'd like to know what he'd be suing over, but assuming he had a cause of action for something or other, then discovery would be no problem. And really, it's not as though MPAA methods are a big secret. They just sit around logging IPs by initiating sessions with them (e.g. downloading off of a torrented file you're serving up), checking to see that the file is a work they're interested in, and checking with the ISP to see who that IP was assigned to at the time.
Why can't the USA take up a loser pays legal system - in countries where such a system exists, the incidence if frivolous lawsuits are nowhere near the level they are in the USA.
Because it's not fair. And those countries don't have as much entirely justifiable litigation either. Since litigation is simply dispute resolution, this means that they have a lot of unresolved disputes. That's not desirable.
These kinds of RIAA lawsuits would get VERY expensive if they had to pay all legal costs every time they lost, and people would be more inclined to let it go to court, rather than settling as it's a cheaper option.
Except that the RIAA has a really strong case. They have a low standard of proof, and in most cases the people they go after really did break the law. Other than the unusual times when they get the wrong person (it's a handful of people out of probably tens of thousands now) they're pretty accurate. And in those cases, they really do tend to drop the matter.
They're jerks, and I think this is a bad strategy, but don't be stupidly optimistic.
My view of downloading a copy of a work of art which I have already purchased a valid license, is that I am obtaining a backup copy... I end up with a backup copy which is within my perogative as a license holder. I actually do not recall seeing any licensing terms on the last record I bought. Or on any CDs. My activities are restricted solely by copyright law, and not by any random RIAA (or MPAA) whim.
And other than that last bit, you're wrong. There is no license for records, CDs, etc. Compare with software, where there is at least an attempt to have a license, and so there are very obvious licenses there.
And copyright law says that you are not allowed to make copies of copyrighted works, period. There are a few exceptions to that, but they're usually few and far between; which exceptions can successfully be used in a given case will depend on a lot of different factors. Generally, it's illegal to make backups. It might be a fair use, but that depends. What is a fair use for Alice might be illegal for Bob, depending on their circumstances.
Note that format shifting from a digital format to an analog one (CD => Tape), or analog to analog (record => tape) was considered to be fair use. Same with making a backup tape for the car (tape=>tape). The rule used to be it was fair use as long as only 1 copy could be in use at a time - IE one tape in the car, another in the house - you can't be using both at the same time - it was fair use.
None of that is true.
Fair use is something that is determined on a case by case basis. If Alice makes a copy of a CD it might be fair use, while if Bob makes a copy, it might not be a fair use. The circumstances are everything. There is no rule for all backups or all conversions. And there is certainly no rule about how many copies are in use. And it is totally irrelevant whether the copy is digital or analogue.
Now, there is 17 USC 1008, which allows people to -- under very certain circumstances that usually don't apply -- make any number of copies, with no concern for how many are simultaneously in use, of certain types of works. But this is not fair use, and it's so difficult to comply with that it usually isn't used. (N.b. that if you try to read it, while that's commendable, you're certain to misinterpret it if you don't look at the rest of the AHRA and the other relevant parts of the law)
, it seems as if DVD copying for backup is legal
No, not really. Under some circumstances it can be, but those are quite rare. They'll probably get shut down under the inducement theory in the near future.
So if it's legal to make a copy, how can it not be legal to download a copy instead?
That's a good question, but you might want to read the excellent essay What Colour Are Your Bits? when you think about it. And remember that courts generally won't do any favors for people that they think are bad. Some 1201 arguments might be possible as well. It's not as though the statute requires that circumvention be direct.
I am a copyright lawyer. And frankly, outside of the software industry, and certain recent developments involving computers (e.g. iTMS), no one licenses to the mass market. When you buy a paperback, or a music CD, or a DVD, from Borders or someplace, you are buying it. There is no license involved. The various publishing industries don't even claim that there are licenses. Instead people who are too used to thinking that the idea of licensing software is an acceptable or even good practice assume that that's how things work elsewhere too.
I assure you, software is the aberration, and frankly, I'd like to see licensing end there too, in 99.44% of cases. Non adhesive licenses (i.e. ones that are actually negotiated, rather than being presented on a take it or leave it basis like a EULA) would be okay. And a handful of adhesive licenses would be okay, such as the GPL. But ordinary EULAs are bizarre and totally useless, and really have got to go.
it must be owning the copy under license to view it.
No.
A DVD is no different, for our purposes, from a pocketknife. When you get one at the store, you just own it. There is no license involved at all. Since you own it, you can do anything you want with it, so long as you don't break the law.
With a knife, if you stab someone with it, that would be against the law. The fact that you're not allowed to do that doesn't mean you don't own it.
With a DVD, if you make a copy of it (or some other things), that would be against the law. But just as with the knife, that doesn't mean you don't own it. In fact, unlike the knife, after a certain conditions are met (which could happen before or after you buy the DVD) the law stops applying to the DVD, and you can copy it.
Also, in both cases, under certain conditions, the law lets you do things that you couldn't do otherwise. If you're being attacked, you might be able to legally stab someone with the knife in the course of defending yourself. If it's a fair use (and 17 USC 1201 isn't a factor) you might be able to make a copy.
Copyright law covers several things, including publicly performing a work. If you have a jumbotron in the middle of town and played the DVD on it, that would be a public performance. It's against the law. Copyright does not cover non-public performances. So if you watch the DVD at home, or with friends or family, then that's perfectly legal. You do not have to have a license in order to do that, any more than you need a license to whittle using the knife.
You can also build your own player to view it.
Yeah, you're going to run into some 1201 problems there. Did you miss the whole Reimerdes case?
I always wondered why there weren't more geek lawyers
There are plenty. Mostly they're patent lawyers, but not all.
Well, I have no idea what stupid things foreign copyright laws do, but FYI in the United States, copyright does not involve novelty. It is entirely possible to have two identical, independently created works, where both are copyrighted and neither infringes upon the other.
Of course the Constitution also prohibits copyrighting facts or uncreative compilations of facts, and couldn't give less a of a crap about mere effort. We're not interested in protecting effort. We're interested in promoting the progress of science by encouraging creativity. Our limited, often lack, of protection for databases is entirely deliberate.
And note that the database industry is pretty big in the US, so apparently we're doing the right thing by not subsidizing them.
If someone goes to the work of building a compilation of materials that is expensive to build and maintain, their efforts should be protected.
Why?
The law shouldn't protect freeloaders like this.
Why not? And just so you know, these are honest questions.
It is not difficult to demonstrate originality in creation when enormous amounts of energy are expended in the process of doing so.
Oh? Well, I seem to recall that the Supreme Court said this, about this very subject:
It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme." It is, rather, "the essence of copyright," and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts." To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea-expression or fact-expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.
So if I spent 3 billion dollars and mapped out every cubic meter of NYC in 3-D, to within a few meters accuracy, and used that in the next Grand Theft Auto game, you are saying you should be able to just copy that data wholesale and use it in Flight Simulator 2007?
Pretty much. It's not like you created that data; it was already there, and you merely found it. And if you're being thorough, you're not being creative with regard to the selection of data. You're also probably not being creative with its arrangement.
What incentive do I have to gather that kind of data if I don't even own it?
You can gain an advantage by being first to market with it. And people will often still pay for a copy of it. In fact, surveying is a fairly healthy business.
But you don't get a copyright, since you didn't do anything creative, and copyright requires creativity. And history proves that people will compile these databases anyway, so whatever natural incentives there seem to be, they seem to be sufficient. We don't need to incentivize it further.
How does any company that works solely with data in the information age stay in business if they don't own their data?
And yet, they do stay in business, totally undercutting your argument!
Maps have always been copyrightable in the US, partially on their artistic value, and partially because they're selective as to which facts they include and arrange.
But false or erroneous facts and theories which are presented as true are treated as facts and are uncopyrightable. There are cases to this effect, such as Nash v. CBS, but I've never heard of anything to the contrary.
The reason that authors will sometimes introduce unique errors is not to manufacture grounds for infringement. Rather it is to prove that copying took place. Whether or not that copying was infringing isn't determined by the presence of an error.
Slashdot Mirror
Of course, there's nothing sacrosanct -- or even tolerable -- about the Berne Convention. Getting the US out of it, and other international copyright treaties, is on my agenda.
In any event, your argument is wrong. It is not the government's job to enforce the law, so much as it is the government's job to create and enforce laws for the benefit of the people. If the people are better served by different laws, then it is the government's duty to change the laws accordingly, not to enforce the bad laws.
Well, then what if we cut them out as middlemen. People could pay production companies directly (e.g. you'd have an HBO bill, and a Showtime bill, etc., rather than a single cable bill), and cable companies would simply sell bandwidth.
Of course, do bear in mind that one entirely reasonable and acceptable answer is to allow people to freeload, and to have fewer shows get created. Copyright is meant to serve the overall public interest, and both freeloading and having more shows are equally in the public interest. We just have to decide on the relative proportions that serve us best overall.
Massachusetts.
I think what he meant is that the artists, the ones who actually compose and perform their works, are not the ones being represented here. This is generally viewed as being not only unfair and disingenous, but against the spirit of copyright. This problem is not necessarily a problem of copyright, but is compounded by the fact that copy rights are transferable. One of the solutions I have seen that I would favor would be to reverse the ruling that corporations are people, and make copyrights only ownable by individuals, and non-transferable. That way the power is shifted towards the actual creators, and more closely respects the original intent of copyright (IMO).
I disagree. Ever since day one, copyright law has treated copyrights as being alienable. Copyright holders have always been free to sell or give their copyrights to others.
For example, here is an excerpt from the 1790 Copyright Act, which was the first United States copyright law.
Really, I don't see why this is bad. Since no one can generally force an author to sell his copyright, it's always his choice. If he makes a dumb choice, then I'm prepared to let him. After all, copyright law is not meant to help or protect authors. It is meant to help the public. Part of how it helps the public -- not the only or most important part, mind you -- is to encourage authors to create original works. If authors are encouraged to create these works with a conveyable copyright, then that's great. The only reason for having non-conveyable copyrights would be if they were better for the public, in that they encouraged authors more, and/or had fewer effects harmful to the public.
I'm unconvinced that they'd be better. Particularly since exclusive licensing could accomplish exactly the same end result (but in a more complicated and costly manner, thus not helping anyone) and statutorially nonexclusive licensing would likely diminish the economic value of copyrights, and thus diminish their efficacy as incentives for authors, and so diminish the net public good that copyrights accomplish.
It seems to me that they're basically proposed as a way -- which would certainly be totally ineffective -- of sticking it to publishers et al. That's not something that should go into making good copyright policy.
one is not allowed to represent oneself in anything but small claims and criminal court.
That's incorrect. People can always go to court pro se. Criminal cases are unique in that defendants may be provided with lawyers by the government if they don't have a lawyer of their own. That is not the case in civil suits. Of course, I would never advise anyone to represent themselves, even though they have a right to in every court.
Is going to court expensive so that it discourages people wasting the court's time and instead encourages outside settlements wherever possible?
No. In fact, court costs and fees are actually pretty cheap. And if you have financial problems, they can be reduced or waived upon a showing of need. Everyone has a right to go to court, at the end of the day. It's not just for those that can afford it.
What's expensive are lawyers. But our fees are basically determined by the market. They're not inflated for some sort of policy reason. Like everyone else, we charge what we can get, and deal with competition from our peers.
That said, courts do like to have litigants go to mediation before trial
Is there not a "fit for use" expectation?
And that might make for an interesting breach of warranty suit, but it still wouldn't keep the patent from being in force.
Hmm. The doctrine of fair use seamed quite resonable to me: aren't there four basic principles that define a use as fair? Personal use of a copy of the whole, excerpts for critical review, educational use, and lack of commercial incentive (the latter driving my views on patents).
Not all noncommercial uses by natural persons will be fair uses. While I wholeheartedly support fair use, it's silly to rely exclusively upon it. We need a panoply of exceptions, including fair use, as part of a good copyright law.
As for fair use itself, really a fair use is whatever is fair but otherwise infringing. There are four factors that can indicate that a use is likely fair (and additional factors can be considered) but they are really just used as tests to see if it's fair, not to define it.
They are 1) the purpose and character of the use (e.g. commercial, educational, personal, transformative, nontransformative, etc.); 2) the nature of the work (i.e. factual or creative); 3) the amount and substantiality of the work used (i.e. how much, and how important a part, was used) and; 4) the effect of the use upon the actual or potential market for the work.
There are no blanket fair uses. Not all parodies, or educational uses, or quotes, etc. are fair. And some commercial uses that use a lot of a work are fair. It's totally dependant on the circumstances. Many times it can go either way. That's why we need clearly defined exceptions that are not fair use, and we also need fair use in order to fill in the gaps.
Now, as a libertarian, I have no problem with an explicit contract regarding some of the restrictions in 1201 regarding fair use
I do have a problem with that. First, adhesive contracts (i.e. non-negotiable contracts, such as EULAs or most preprinted form contracts) are widely abused these days. Merely being express and written isn't protective enough of most parties, particularly given the extreme disparity in negotiating positions.
Second, in many cases, copyright policy should win over contracts. If we allow total freedom to contract, private fiefdoms of copyright law will be established which are contrary to public policy and law. For example, imagine a contract in which you forfeited your right to resell the copy later. In limited cases -- e.g. copies submitted to reviewers, or private betas -- contracts might be acceptable, if they didn't go too far. But there are limits.
Apparently, at the time, they thought it was a good idea. But when they tried it, it turned out that pretty much everyone ignored it. And there was enough money in it, and it was unobjectionable enough, that it wasn't hard to bribe most law enforcement, so that the bootleggers could continue operating.
Good times.
There's an in-built assumption that going to court is "a good thing" in the above statement, and a representation of the alternative system as "more dangerous", an emotive term. I would suggest that it simply encourages more people to come to an agreement outside of a court-room in the UK; that when no agreement is forthcoming a court-case is a perfectly acceptable solution, but that other routes ought to be pursued first.
No, you're misunderstanding me. Resolving disputes is a good thing, whether it happens in court or not. I don't mind alternatives, and within reason they're not worse (though there have been abuses related to arbitration), so long as court remains as a final, viable option. We too encourage people to take care of their disputes before they get to court, but there's no discouragement vis-a-vis court either. That, I think is the difference.
Perhaps (*because* it's a last-resort) there is more money (relatively speaking) to support those who *need* to go to court to resolve something...
Maybe, but I think that it's because legal aid tries to help out those who are too poor to ever have a chance of affording a lawyer, and even then, largely in cases that are really important, such as keeping them from getting evicted or helping them get through bankruptcy. You could throw a lot of money at legal aid before you'd see them significantly expand who they represent and what they do.
If I take a DVD that is mine and I read it into my PC's memory and in memory I encrypt using a key that is unknown to me, and then store the resulting output on a disk, is that copying, under law? If I do that, but use a key unknown to me that is so short that I could then brute force it at a later date, have I broken the law?
Yes. For more on this, read 17 USC sections 501, 106(1), the definition of a copy at 101, and the infamous case of MAI v. Peak, 991 F.2d 511 (9th Cir. 1993). So long as it can be read and it's fixed, it's a copy. It doesn't really matter if you can't read it yet. If it was completely unrecoverable, then I suppose it wouldn't be a copy, but I wouldn't bet the farm on it.
Also, n.b. that as a rule, courts don't like people who try to act clever in order to get around the law. Most people in the system are going to be pretty smart too, they're going to see what you're trying to do, and they're going to prevent it by not acting in a fashion that lets you exploit the system. The judicial system isn't like a computer.
Well, it's the angle I'm pursuing. Whether it'll work out, I don't know, but I don't see any other viable alternatives.
I'm not so sure about "not fair".
If the case is not entirely without merit, then why shouldn't you go to court with it? Oh, there might be better alternatives which also should be available, but it would be perfectly acceptable to go to court. Since there is some merit to the case, there must be a real, credible dispute. If you're on the losing side, then that's fine; half of everyone is. But you shouldn't be punished by having to pick up the other guy's bill.
there is such a thing as legal-aid
We also have this, and some other sources of pro bono representation. But not enough to go around. They're usually preoccupied with minor cases for indigent clients. A loser pays rule would harm more people than pro bono lawyers could possibly help.
a no-win,no-fee basis
Contingency fees are available here, but obviously only for plaintiffs. A defendant isn't trying to be awarded anything, and so there'd be no award for the fees to be paid out of. Plus, lawyers won't agree to that sort of fee (the lawyer and client both have to agree to it) unless they think it's better for them than a regular hourly or flat fee.
There is also binding arbitration, and the small-claims court
We also have these.
And there *are* a lot less lawsuits.
And since it appears that the main difference is the loser pays rule, and that British society is probably no better or worse than American society, that implies that a lot of fair, perfectly meritorious cases are going untried because of the dangers of the loser pays rule. That's why I don't like it; it's unfair.
I think it is absurd that I can have a right to watch the content on a DVD that I purchased, but not in the manner of my choosing.
Re: 1201 et al, I agree. Re: patents, while I am against software patents for other reasons, I generally disagree with you. Patents and copyrights are on equal footing; it's not like trademarks, which are subservient to both. One blocking the other is a perfectly ordinary and acceptable situation.
I mean, imagine inventing the record player, patenting it, but having that patent not apply to people who want to build record players so that the players can play records. What the hell good would the patent be?
Maybe a personal use exception for patents is more what you're looking for. I've long supported a personal use exception for copyrights (i.e. natural persons acting noncommercially could do anything and not infringe), so perhaps something like that.
the immaturity of case law when all these areas of IP law intersect in potentially contradictory ways.
Oh, it's not immature. It's just out of line with the expectations of laypeople. I think this is a big problem, so long as laypeople are involved (hence my suggestion to have these laws stop applying to them in ordinary circumstances). But there's no real immaturity. It's just crappy laws. Get Congress to fix these laws, and things will improve significantly.
The Constitution of the United States is pretty clear on this: the copyright of a work is secured to the authors for the purpose of advancing useful arts and sciences. The MPAA is not an author. It is not even a person.
Actually, copyright is for promoting the progress of science. Patents promote the progress of the useful arts.
Anyway, MPAA is an organization representing its members. If Sony or Disney didn't want MPAA to do this, then they would do it themselves. But they're happy to have MPAA deal with these issues for them. So your point is irrelevant.
I would say that 99% of the MPAA lawsuits are invalid.
Yeah, you're pretty certainly wrong on that.
The MPAA seems very keen on getting people to settle quickly and it is much easier for people to settle, even if the amount is extortionary, because the lawyers one might secure for a successful defense cost more than the multi-thousand dollar "fine" the MPAA wants.
Everyone in the law likes a good, quick settlement. It's usually a lot more convenient for everyone than going to court. But this isn't a money-maker for MPAA. The movie studios make hundreds of millions of dollars annually. These suits are chickenfeed to them. They're just meant to discourage people from infringing.
Since none of these lawsuits has yet made it to trial, it has not been determined whether or not any laws have been broken or even if those laws themselves are valid.
This is just dumb. There are interesting constitutional challenges to some copyright laws, but the ordinary MPAA case involves none of them. If you want to fix copyright law, you need to go through Congress. The courts are not really able to do so, and are not going to do so since it is not broken in any way that is relevant for them. Bad laws that are constitutional will be upheld by the courts.
On the other hand, if no one respects copyright, it would be somewhat similar to no one respecting physical property rights.
There is an alternative, you know.
No one respected Prohibition. And that disrespect led to disrespect for laws that were actually important, it led to support for organized crime, etc.
The appropriate thing to do here is to legalize otherwise infringing acts, if they're engaged in by natural persons, noncommercially. Thus, Alice and Bob could share files with one another and it would be lawful. But Bob couldn't sell copies to Carol, DaveCo couldn't sell copies in its stores, and the Eve Charitable Organization couldn't give away copies for free even in pursuit of its charitable mission.
Personally, I think that legalization is the way to go. Copyright can remain vital in the commercial and non-natural person areas, but ordinary people should never have to care about it in their day to day affairs. We wouldn't try to alter their behavior, but would instead try to live with it, which is important since 1) the law should serve them; and 2) they'll do it anyway.
why are they allowed to sue a teenager for tens to hundreds of thousands of dollars for a song that costs $1 on itunes, or a movie that costs $7 at Best Buy?
Because Congress said that they can. See 17 USC 504 for how that works.
This should be a case in small claims court.
Yeesh, no. Exclusive federal jurisdiction is a good thing. Maybe if we were to create a federal small claims court, but that would be a little odd. Certainly it would take some of the prestige out of being an Art. III judge.
If Hogan can get a judge to say "ip adresses and a bittorrent log is not enough evidence to prove your claim," everyone else who gets a letter can get a cheap lawyer to easily argue that point.
Why wouldn't that be enough? The standards of proof in these cases is really low. So long as it is simply more likely that it was him, rather than someone else, then it was him. A small chance that it could be someone else via an open WAP or whatever isn't good enough. Whatever is most probable (i.e. whatever is 51% most likely to be the case) is what is accepted as true.
Who mostly uses your IP address? You. Who probably downloaded something that went through that address? You. Oh, it could be a wardriver, maybe, but probably not. And 'probably' is the magic word here.
I don't know if Hogan would be able to demand that information in a counter-suit
I'd like to know what he'd be suing over, but assuming he had a cause of action for something or other, then discovery would be no problem. And really, it's not as though MPAA methods are a big secret. They just sit around logging IPs by initiating sessions with them (e.g. downloading off of a torrented file you're serving up), checking to see that the file is a work they're interested in, and checking with the ISP to see who that IP was assigned to at the time.
Why can't the USA take up a loser pays legal system - in countries where such a system exists, the incidence if frivolous lawsuits are nowhere near the level they are in the USA.
Because it's not fair. And those countries don't have as much entirely justifiable litigation either. Since litigation is simply dispute resolution, this means that they have a lot of unresolved disputes. That's not desirable.
These kinds of RIAA lawsuits would get VERY expensive if they had to pay all legal costs every time they lost, and people would be more inclined to let it go to court, rather than settling as it's a cheaper option.
Except that the RIAA has a really strong case. They have a low standard of proof, and in most cases the people they go after really did break the law. Other than the unusual times when they get the wrong person (it's a handful of people out of probably tens of thousands now) they're pretty accurate. And in those cases, they really do tend to drop the matter.
They're jerks, and I think this is a bad strategy, but don't be stupidly optimistic.
My view of downloading a copy of a work of art which I have already purchased a valid license, is that I am obtaining a backup copy ... I end up with a backup copy which is within my perogative as a license holder. I actually do not recall seeing any licensing terms on the last record I bought. Or on any CDs. My activities are restricted solely by copyright law, and not by any random RIAA (or MPAA) whim.
And other than that last bit, you're wrong. There is no license for records, CDs, etc. Compare with software, where there is at least an attempt to have a license, and so there are very obvious licenses there.
And copyright law says that you are not allowed to make copies of copyrighted works, period. There are a few exceptions to that, but they're usually few and far between; which exceptions can successfully be used in a given case will depend on a lot of different factors. Generally, it's illegal to make backups. It might be a fair use, but that depends. What is a fair use for Alice might be illegal for Bob, depending on their circumstances.
Note that format shifting from a digital format to an analog one (CD => Tape), or analog to analog (record => tape) was considered to be fair use. Same with making a backup tape for the car (tape=>tape). The rule used to be it was fair use as long as only 1 copy could be in use at a time - IE one tape in the car, another in the house - you can't be using both at the same time - it was fair use.
None of that is true.
Fair use is something that is determined on a case by case basis. If Alice makes a copy of a CD it might be fair use, while if Bob makes a copy, it might not be a fair use. The circumstances are everything. There is no rule for all backups or all conversions. And there is certainly no rule about how many copies are in use. And it is totally irrelevant whether the copy is digital or analogue.
Now, there is 17 USC 1008, which allows people to -- under very certain circumstances that usually don't apply -- make any number of copies, with no concern for how many are simultaneously in use, of certain types of works. But this is not fair use, and it's so difficult to comply with that it usually isn't used. (N.b. that if you try to read it, while that's commendable, you're certain to misinterpret it if you don't look at the rest of the AHRA and the other relevant parts of the law)
, it seems as if DVD copying for backup is legal
No, not really. Under some circumstances it can be, but those are quite rare. They'll probably get shut down under the inducement theory in the near future.
So if it's legal to make a copy, how can it not be legal to download a copy instead?
That's a good question, but you might want to read the excellent essay What Colour Are Your Bits? when you think about it. And remember that courts generally won't do any favors for people that they think are bad. Some 1201 arguments might be possible as well. It's not as though the statute requires that circumvention be direct.
The person you're downloading it from doesn't have the legal right to send you parts of the file, whether or not you own a copy.
That's his problem, not yours. (And isn't necessarily true, though it's generally likely to be true)
I am a copyright lawyer. And frankly, outside of the software industry, and certain recent developments involving computers (e.g. iTMS), no one licenses to the mass market. When you buy a paperback, or a music CD, or a DVD, from Borders or someplace, you are buying it. There is no license involved. The various publishing industries don't even claim that there are licenses. Instead people who are too used to thinking that the idea of licensing software is an acceptable or even good practice assume that that's how things work elsewhere too.
I assure you, software is the aberration, and frankly, I'd like to see licensing end there too, in 99.44% of cases. Non adhesive licenses (i.e. ones that are actually negotiated, rather than being presented on a take it or leave it basis like a EULA) would be okay. And a handful of adhesive licenses would be okay, such as the GPL. But ordinary EULAs are bizarre and totally useless, and really have got to go.
it must be owning the copy under license to view it.
No.
A DVD is no different, for our purposes, from a pocketknife. When you get one at the store, you just own it. There is no license involved at all. Since you own it, you can do anything you want with it, so long as you don't break the law.
With a knife, if you stab someone with it, that would be against the law. The fact that you're not allowed to do that doesn't mean you don't own it.
With a DVD, if you make a copy of it (or some other things), that would be against the law. But just as with the knife, that doesn't mean you don't own it. In fact, unlike the knife, after a certain conditions are met (which could happen before or after you buy the DVD) the law stops applying to the DVD, and you can copy it.
Also, in both cases, under certain conditions, the law lets you do things that you couldn't do otherwise. If you're being attacked, you might be able to legally stab someone with the knife in the course of defending yourself. If it's a fair use (and 17 USC 1201 isn't a factor) you might be able to make a copy.
Copyright law covers several things, including publicly performing a work. If you have a jumbotron in the middle of town and played the DVD on it, that would be a public performance. It's against the law. Copyright does not cover non-public performances. So if you watch the DVD at home, or with friends or family, then that's perfectly legal. You do not have to have a license in order to do that, any more than you need a license to whittle using the knife.
You can also build your own player to view it.
Yeah, you're going to run into some 1201 problems there. Did you miss the whole Reimerdes case?
I always wondered why there weren't more geek lawyers
There are plenty. Mostly they're patent lawyers, but not all.
Since Slashdot users aren't lawyers
Oh? Well, that's good to know, I guess.
Well, I have no idea what stupid things foreign copyright laws do, but FYI in the United States, copyright does not involve novelty. It is entirely possible to have two identical, independently created works, where both are copyrighted and neither infringes upon the other.
Of course the Constitution also prohibits copyrighting facts or uncreative compilations of facts, and couldn't give less a of a crap about mere effort. We're not interested in protecting effort. We're interested in promoting the progress of science by encouraging creativity. Our limited, often lack, of protection for databases is entirely deliberate.
And note that the database industry is pretty big in the US, so apparently we're doing the right thing by not subsidizing them.
Why?
The law shouldn't protect freeloaders like this.
Why not? And just so you know, these are honest questions.
It is not difficult to demonstrate originality in creation when enormous amounts of energy are expended in the process of doing so.
Oh? Well, I seem to recall that the Supreme Court said this, about this very subject:
So if I spent 3 billion dollars and mapped out every cubic meter of NYC in 3-D, to within a few meters accuracy, and used that in the next Grand Theft Auto game, you are saying you should be able to just copy that data wholesale and use it in Flight Simulator 2007?
Pretty much. It's not like you created that data; it was already there, and you merely found it. And if you're being thorough, you're not being creative with regard to the selection of data. You're also probably not being creative with its arrangement.
What incentive do I have to gather that kind of data if I don't even own it?
You can gain an advantage by being first to market with it. And people will often still pay for a copy of it. In fact, surveying is a fairly healthy business.
But you don't get a copyright, since you didn't do anything creative, and copyright requires creativity. And history proves that people will compile these databases anyway, so whatever natural incentives there seem to be, they seem to be sufficient. We don't need to incentivize it further.
How does any company that works solely with data in the information age stay in business if they don't own their data?
And yet, they do stay in business, totally undercutting your argument!
Got a citation for this?
Maps have always been copyrightable in the US, partially on their artistic value, and partially because they're selective as to which facts they include and arrange.
But false or erroneous facts and theories which are presented as true are treated as facts and are uncopyrightable. There are cases to this effect, such as Nash v. CBS, but I've never heard of anything to the contrary.
The reason that authors will sometimes introduce unique errors is not to manufacture grounds for infringement. Rather it is to prove that copying took place. Whether or not that copying was infringing isn't determined by the presence of an error.