Just to clarify a bit, the creative part is the selection and arrangement of uncopyrightable facts in the compilation. Uncreative selection (such as the name, address, and number of all phone subscribers in an area) and arrangement (alphabetical order by last name) was unprotectable in Fiest.
Sure, people don't get permission to copy CDs containing copyrighted works merely because they bought the CDs. But remember that the article was talking about selling copies. We just got kind of sidetracked into discussing making copies. The law permits you to sell CDs, provided that they were made lawfully (e.g. by the copyright holder). The article states the contrary. That was what I was objecting to.
What the author said was copies. If it was the copies you made from copies made under the authorization of the copyright holder (regardless of whether they're the original master copies or the copies sold at the record store), then you likely couldn't sell them. If they were authorized copies (see above) then you can.
All the author would've had to do was to say 'the copies you made' and I'd find that part of the article to be largely correct.
I didn't direct my machine to do anything, I clicked on a button that said Pay The Man
Clicking on the button sets the machinery in motion. So yeah, while Apple is involved, and has to have a license to distribute to you, ultimately, it is you, the downloader, that makes the decision.
In any case, Apple is only allowed to distribute to people who sign onto the EULA. If you don't, and they send the file -- not the copy -- to you anyway, then they're infringing by doing so. And you're infringing by making the copy on your end, since making the copy without permission is infringing, and it's not non-infringing merely because Apple is involved, particularly when they're infringing.
There has to be _a_ license when you make a new copy, as a step in downloading. It could be implied from the conduct of the copyright holder (e.g. if they put it on a public web page). But in this case, the copyright holder and their intermediary has an express written license. As a result, the implied license argument won't fly.
No, while Apple surely makes some copies too, remember that 1) copies cannot go over the Internet, since they are defined as material objects e.g. books, CD disks, hard drives, and RAM. And 2) the person who directs that the copy be made is responsible for it. Since Apple doesn't put songs on your computer anytime they feel like it, and in fact only do so when you request it via iTunes, it's you that has it put on your computer.
This is why in the Napster case, among others, the court found that downloaders are liable for any illegal downloading, while the user on the other side might instead be liable for illegal distribution to you.
Similarly, no licensing agreement would be necessary, e.g., on iTunes, for redistribution by the end-user (of copies) to remain illegal.
That's true. But it would also be illegal, sans some manner of license, for you to download from iTunes, since that constitutes making a new copy. Thus, you need some kind of license, and on the whole, they'd rather have explicit written licenses instead of implied licenses.
Are they required by law to replace our copy if it is damaged or destroyed when we can prove ownership?
Generally, no. Really, why would they be? If I break a comb, the drugstore doesn't owe me a new one unless they decided to have some sort of generous guarantee. Copies are basically the same as far as this goes.
AFAIK I haven't made a fool of myself in public on this issue yet.
First, 106A was not in this case.
Second, 106A does not apply to movies anyway.
Third, Gilliam was not a moral rights case. It was a derivatives right case and an unfair competition case. The court there even said that "American copyright law, as presently written, does not recognize moral rights or provide a cause of action for their violation, since the law seeks to vindicate the economic, rather than the personal, rights of authors."
I'm familiar with moral rights. They're absolute bullshit, are incompatable with our legal traditions and copyright policies, and should be purged from our laws never to darken them again. They're an excellent example of how our law has been twisted and corrupted. But at least I know when they are and are not relevant. Maybe you should read up on them before you make a fool out of yourself again.
My understanding of the Fair Use issue is that it should be legal for me to make a copy of a work that I have purchased to serve as a backup in case the original is damaged
Maybe so, but I wouldn't rely on it. Remember that there is no use that is always a fair use. It always depends on the circumstances involved. What is a fair use for Alice might not be for Bob.
but if I sell the original, I no longer have a right to keep or use the "backup" copy.
Of course, if you meet the requirements of 17 USC 1008 (n.b. that people almost always misread it on first glance because they don't read the definitions in section 1001), then you can make copies of certain works, in certain ways, and you get to keep them even if you get rid of the original. In fact, even if you never had the original, save for the purpose of making another copy.
and even more importantly to me, it passes the morality test (you know, the one that tells you that you are full of shit when you say that downloading music that you have not paid for in any form is perfectly acceptable).
Meh. Copyright law is fundamentally utilitarian and amoral. To the extent that there are morals, I'd say that they always are on the side of making and distributing copies. It's good to gain and use knowledge and to make copies of it and spread that knowledge about. It's not good to lock it up or charge for it. We might allow such locking up for utilitarian reasons, but not for any moral reason.
But remember that all copies, even the ones created by the copyright holder, and even the original one, are copies. A copy in copyright parlance is just a tangible object in which a copyrighted work is fixed.
If the article had said that it was illegal to make your own copies of works and to sell those, then that would've been generally correct. But it is perfectly legal to sell copies made by the copyright holder. Since they're all considered copies, the article was wrong.
In ordinary transactions, when you buy a copy of a copyrighted work, you buy it outright, you do not license it. Software is the only area in which licenses in such transactions are really known. Even there, there is lively debate in the legal community as to whether or not the licenses are actually in effect. Cases have gone both ways on the software issue.
Remember, a license is either implied or express, and if express, either oral or written. In these kinds of transactions, they'd pretty much have to be express and written. They would resemble software EULAs in their content, length, and visibility. I have a lot of DVDs and a lot of CDs. I've never seen licenses in any of them. Note that a (typically exaggerated or inaccurate) statement of law such as 'public performance is prohibited' (see 17 USC 106 for the law that says so) is not a license. If you download music in some lawful fashion -- from iTunes, for example -- then you're likely doing so pursuant to a license agreement that would've been quite prominent. This is necessary since downloading is reproduction, and would otherwise infringe. Implied licenses exist for works that are put up on web sites authorizedly.
I also would point out that the article is wrong when it says that it's illegal to sell used music. It is perfectly legal and quite commonplace. Caselaw and 17 USC 109 make it noninfringing to do so.
Frankly, if this is the caliber of their reporting on these issues, I wouldn't bother wrapping fish with their paper.
Yes. This way only works where the author wants a copyright will be copyrighted. If the author doesn't care enough to expend a token effort with regard to the work, why should we? Especially since copyright encourages authors to create what they otherwise would not. When we can identify works that he would've created anyway -- and an opt-in system does that -- he shouldn't get a copyright. He didn't need the incentive for that work, and since copyrights are a cost on the public, we shouldn't be wasteful.
Would you be for an opt into your health/credit privacy?
Not the same thing. Remember, we don't have copyright for the hell of it, or because authors deserve it or some nonsense, we have it for very specific public policy reasons. It's more like, oh, student loans. We want to encourage people to go to school even if they can't immediately afford it, but we don't just give out free money left and right.
What if the author is lying there in coma and cannot once again opt into his copyrights, would you deny him the rights to his work because of that?
No. First, there's not going to be many works to worry about from that author, unless he's typing away at a word processor while in a coma. The only pending works will be those he had already made and hadn't copyrighted. Second, in that kind of situation, there are usually guardians who can make decisions for the comatose author: spouses, parents, state-appointed guardians, etc. Third, that's a hell of an unusual situation; I'd rather worry about the more common cases in finding a general policy, and then deal with those outliers, rather than the other way around.
No, my personal belief is that while I am alive, my works should be copyrighted to me.
And my personal belief is that your works should not be. Traditionally, I've won, and when the eventual wholesale reform of copyright law comes along, I think I'm going to win again. Your argument is the one of the copyright maximalist who got us into this rotten situation with regard to copyright. It's a bad argument.
Could you link to a pdf of the ruling? I've been unable to find it online.
Not particularly. I got it off of PACER, which charges a small fee and requires an account. I could repost it somewhere of course (see 17 USC 105), but I haven't really got anyplace to do that in light of the traffic I think it might result in for a time. Sorry.
Mind giving me a general idea about what those ways are, so I can learn them;)
Many of the terms used in the copyright statutes are defined in 17 USC 101. Here's the definition of a derivative work:
A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".
If it isn't on the list, it isn't a derivative work. So it has to have been recast, transformed, or adapted, or on the laundry list (e.g. art reproduction), or it has to be editorial changes as listed that are sufficient and creative enough to satisfy the originality requirement of copyright.
This would likely cover what happened in this case, as an abridgement, or modifications that satisfy originality. And yet the court felt that it wasn't a derivative because it wasn't transformative (which is really a fair use issue, not a derivative issue) and it wasn't transformative because it didn't add new material, it only removed material (a big misreading of caselaw). If there's an appeal, which I understand is unlikely, I would think that this would be likely to get fixed. Like I've said, it's an odd decision, but probably the outcome is correct if not how the court arrived there.
This I completely disagree with, when you buy most items (specifically, but not exclusively, copyrighted items), by opening/buying/using you agree to the license contained within.
Most items don't have a license contained within. For example, most copies of copyrighted works such as books, movies, posters, CDs, etc. Software is about the only place you ever see this sort of thing. And some courts (e.g. Klocek v. Gateway) have found those EULAs to be void. They could still be agreed to, but merely buying the item isn't enough. Other courts have said that they are valid (this all hinges on how you read the UCC) but they remain quite rare.
I have a lot of DVDs and I've got to say that I've never seen a license on any of them. Quick and dirty, threatening-sounding restatements of the law (e.g. it's illegal to publicly perform the movie) are not licenses. Compare with a typical software EULA which is obviously trying to be a license.
Actually, the derivative right in copyright didn't exist until the mid-19th century or so, so I'd say that the framers could not have given a rat's ass about sufficiently edited works. If they had cared, they would've covered it in the law.
Lets remmember the point of the copyright privlidge. To keep people from claiming your material
No, that's not it at all.
The point was to promote the progress of science. This means encouraging the creation of original works, but it also requires encouraging the creation of derivative works, and in having no, or minimal copyright, so that everyone is as free as possible with regard to those works.
In fact, copyright has traditionally never cared about credit, and even today, as warped and awful as it is, it only rarely does, and wouldn't for a movie.
I don't see why we should allow someone to use copyrighted work of others to make money without first getting permission from the holders of the copyright.
Really? What if you buy a copy of a computer program which is shipped as source, and you want to use it to make money? The law currently allows you to compile it or otherwise modify it so it'll run. There are other current examples.
Copyrights should apply within a limited timeframe - in case of a person, they should apply as long as the person is alive (my believe, but YMMV,) and in case of corporations copyrights should not exceed some time period that maybe just as long as life of a patent (20 years?)
Why so long? And so monolithic? I'd argue for very short terms, and multiple renewals of the terms so that the copyright won't last long in any event, and will not last longer than the author is interested in maintaining it. Maybe 25 years tops, and that's actually quite generous given the economic studies which tend toward a 15 year max.
I think the point that the vast majority of people are missing, is that at it's essence, this third party company is creating a derivative work For Profit.
Ironically, the court in this case said that they did not create a derivative work at all. I agree with you that they did, but just FYI.
If this was a non-profit group, such as a church this would be 100% legal.
That's not at all true.
However, editing a work in any way makes the current iteration of the production a Derivative
No, not in any way. It would have to be in certain specific ways.
and that changes the copyright statutes and precedents that apply to this.
No, not really. It means it's a 106(3) case instead of a 106(1) case. That's about it.
involves a transfer of licenses
There are no licenses involved in this case at all. When an ordinary customer buys a DVD at the Best Buy, he buys it. There is no license.
It certainly isn't the right of some third-party like Cleanflix to decide how a movie is edited.
Why not? Seriously, there may be a good reason, but you haven't suggested one.
This has to do with a for-profit company making money by making edited copies of someone else's work and selling those copies.
It is possible to have commercial fair use, and in fact it's relatively common. It's just trickier than noncommercial fair use. Frankly, the judge in this case made some very strange rulings on derivatives and fair use. I don't think the ultimate outcome would be any different, but I do think that there's a more credible fair use argument than he found.
Actually, doing that is perfectly okay; there's a law specifically allowing it for just this sort of scenario, at 17 USC 110(11). These defendants got in trouble for how they did it, not what they did. If their methods had been different, they'd be free and clear.
Actually copyright (and patents) is explicitly mentioned in the constitution as something the Federal Government is responsible for. I'm not sure legislation at the state level is even constitional, not without an act of Congress anyway.
That's incorrect; states are free to do so as well, and they do, so long as federal supremecy is respected.
And, for what it's worth, protecting the integrity of artistic works strikes me as a worthy use of copyright. Nor is it necessary to be a giant cartel to win, as Gilliam vs ABC (one of the first "moral rights" cases) proves.
That was not a moral rights case, and it is a totally unworthy avenue for copyright to go down. Copyright is about promoting the public interest, and the public is served just as much from unauthorized derivatives as it is from encouraging original works. The only real issue is how much of our rights in works do we want to temporarily give up in order to encourage the creation of original works. Artistic integrity is totally irrelevant to copyright policy.
Actually, that power is specifically granted to Congress as far as intellectual property is concerned. The Constitution is pretty clear that it's a federal power.
Well, remember that all the powers of the federal government originate in the states and the people. The federal government hasn't got any inherent powers. As it happens, copyright has never been exclusively federal. Most of the states had their own copyright laws prior to the creation of the current government, and continued to have them where they did not conflict with federal laws (since the supremecy clause would favor the federal government). Even today, there are still some active state copyright laws on the books. Presumably the federal government could preempt all of them (it has preempted most) in order to make sure that the federal laws worked in the manner that they desired, but they haven't, and it still wouldn't make copyright laws an inherently federal-only area of legislation.
Of course, the Constitution is also pretty clear that artificial monopolies (patents, copyrights, etc.) on intellectual property are supposed to be granted "for limited times."
No, it only says that for copyrights and patents. Trademarks and trade secrets are under the commerce clause, which has no limited times requirement, and no requirement of promoting progress.
Not especially. I got it off of PACER, which you have to register and pay for. I could repost it somewhere -- it's not copyrighted (see 17 USC 105) -- but I imagine it would get a lot of traffic since it generally isn't up yet. If you've got someplace I could upload it to, I'd be happy to do so. It's a 48kB PDF.
Still though, it's fairly dull, other than having a really weird derivative work and fair use analysis, neither of which I think will catch on.
Well, I think you're confusing how copyright functions with why it functions. Remember, the public goals are three: getting original works created, getting derivative works created, and having minimal or no copyright. The idea is that for a bigger eventual payoff in goals 2 and 3, we limit them temporarily for a bigger immediate payoff in goal 1. But the idea is that the work eventually hits the public domain, which satisfies goal 3, and opens the door for goal 2 since now anyone can create derivatives. If any of the goals are more highly ranked than the others, I'd say it's the third one that is on top, since we require that it eventually get satisfied.
Of course, the law lately has really gone off track from our policy goals, and I'd like to see it get back on track.
Yeah, I've been really busy for a month, and work shows no signs of slowing down anytime soon. I try to keep an eye on/. but this is the most posting I've done in ages, and fortunately I can do this quite easily.
Re: the book, it depends on whether a derivative was created. While intent is not required for infringement, a derivative work is a work of authorship, and arguably some intent is needed to create one of those. (Or a least, that's Nimmer's argument, and it's never really come up in any cases)
So I'd say that if the book fit the 17 USC 101 definition of a derivative, and you intended to create a work, then it would be infringing. Oddly, this court decided that merely removing material wasn't enough to make the work derivative, so they'd disagree. This case was decided on the reproduction and distribution rights. Fair use might work, but I wouldn't put too much stock in it. And if the chopped up work wasn't a derivative (e.g. it was individual pages outside of the 9th Circuit (which is likely to get overturned on the A.R.T. opinion if it ever goes up to the S.Ct.) which happens sometimes) then you'd be ok.
It's fairly fact-dependent.
For marginalia, etc. again see what constitutes a derivative work. Temper it with fair use. In practice, I'd say that individuals could get away with it on small scales, and businesses working at large scales could not. Sympathy toward defendants is a factor.
"Reading in" protections like this (a practice disparagingly called judicial activism when folks don't like the results) has tremendously expanded the scope of copyright over the years.
Actually, Congress is infinitely more to blame than the courts. The courts hardly create any copyright law at all, and their interpretations are generally in line with what Congress wanted anyway. Please assign blame to the right branch in the future.
Myths, even when there's some truth in them, shouldn't make law.
I concur, but even I, a strict copyright utilitarian and a person sympathetic to the defendants (though I think their censorship practices are silly), wouldn't really have had the room to side with them due to the statutes.
Slashdot Mirror
Just to clarify a bit, the creative part is the selection and arrangement of uncopyrightable facts in the compilation. Uncreative selection (such as the name, address, and number of all phone subscribers in an area) and arrangement (alphabetical order by last name) was unprotectable in Fiest.
Sure, people don't get permission to copy CDs containing copyrighted works merely because they bought the CDs. But remember that the article was talking about selling copies. We just got kind of sidetracked into discussing making copies. The law permits you to sell CDs, provided that they were made lawfully (e.g. by the copyright holder). The article states the contrary. That was what I was objecting to.
What the author said was copies. If it was the copies you made from copies made under the authorization of the copyright holder (regardless of whether they're the original master copies or the copies sold at the record store), then you likely couldn't sell them. If they were authorized copies (see above) then you can.
All the author would've had to do was to say 'the copies you made' and I'd find that part of the article to be largely correct.
I didn't direct my machine to do anything, I clicked on a button that said Pay The Man
Clicking on the button sets the machinery in motion. So yeah, while Apple is involved, and has to have a license to distribute to you, ultimately, it is you, the downloader, that makes the decision.
In any case, Apple is only allowed to distribute to people who sign onto the EULA. If you don't, and they send the file -- not the copy -- to you anyway, then they're infringing by doing so. And you're infringing by making the copy on your end, since making the copy without permission is infringing, and it's not non-infringing merely because Apple is involved, particularly when they're infringing.
There has to be _a_ license when you make a new copy, as a step in downloading. It could be implied from the conduct of the copyright holder (e.g. if they put it on a public web page). But in this case, the copyright holder and their intermediary has an express written license. As a result, the implied license argument won't fly.
No, while Apple surely makes some copies too, remember that 1) copies cannot go over the Internet, since they are defined as material objects e.g. books, CD disks, hard drives, and RAM. And 2) the person who directs that the copy be made is responsible for it. Since Apple doesn't put songs on your computer anytime they feel like it, and in fact only do so when you request it via iTunes, it's you that has it put on your computer.
This is why in the Napster case, among others, the court found that downloaders are liable for any illegal downloading, while the user on the other side might instead be liable for illegal distribution to you.
Similarly, no licensing agreement would be necessary, e.g., on iTunes, for redistribution by the end-user (of copies) to remain illegal.
That's true. But it would also be illegal, sans some manner of license, for you to download from iTunes, since that constitutes making a new copy. Thus, you need some kind of license, and on the whole, they'd rather have explicit written licenses instead of implied licenses.
Are they required by law to replace our copy if it is damaged or destroyed when we can prove ownership?
Generally, no. Really, why would they be? If I break a comb, the drugstore doesn't owe me a new one unless they decided to have some sort of generous guarantee. Copies are basically the same as far as this goes.
AFAIK I haven't made a fool of myself in public on this issue yet.
First, 106A was not in this case.
Second, 106A does not apply to movies anyway.
Third, Gilliam was not a moral rights case. It was a derivatives right case and an unfair competition case. The court there even said that "American copyright law, as presently written, does not recognize moral rights or provide a cause of action for their violation, since the law seeks to vindicate the economic, rather than the personal, rights of authors."
I'm familiar with moral rights. They're absolute bullshit, are incompatable with our legal traditions and copyright policies, and should be purged from our laws never to darken them again. They're an excellent example of how our law has been twisted and corrupted. But at least I know when they are and are not relevant. Maybe you should read up on them before you make a fool out of yourself again.
My understanding of the Fair Use issue is that it should be legal for me to make a copy of a work that I have purchased to serve as a backup in case the original is damaged
Maybe so, but I wouldn't rely on it. Remember that there is no use that is always a fair use. It always depends on the circumstances involved. What is a fair use for Alice might not be for Bob.
but if I sell the original, I no longer have a right to keep or use the "backup" copy.
Of course, if you meet the requirements of 17 USC 1008 (n.b. that people almost always misread it on first glance because they don't read the definitions in section 1001), then you can make copies of certain works, in certain ways, and you get to keep them even if you get rid of the original. In fact, even if you never had the original, save for the purpose of making another copy.
and even more importantly to me, it passes the morality test (you know, the one that tells you that you are full of shit when you say that downloading music that you have not paid for in any form is perfectly acceptable).
Meh. Copyright law is fundamentally utilitarian and amoral. To the extent that there are morals, I'd say that they always are on the side of making and distributing copies. It's good to gain and use knowledge and to make copies of it and spread that knowledge about. It's not good to lock it up or charge for it. We might allow such locking up for utilitarian reasons, but not for any moral reason.
Yes, I know what she said.
But remember that all copies, even the ones created by the copyright holder, and even the original one, are copies. A copy in copyright parlance is just a tangible object in which a copyrighted work is fixed.
If the article had said that it was illegal to make your own copies of works and to sell those, then that would've been generally correct. But it is perfectly legal to sell copies made by the copyright holder. Since they're all considered copies, the article was wrong.
The article is incorrect.
In ordinary transactions, when you buy a copy of a copyrighted work, you buy it outright, you do not license it. Software is the only area in which licenses in
such transactions are really known. Even there, there is lively debate in the legal community as to whether or not the licenses are actually in effect. Cases
have gone both ways on the software issue.
Remember, a license is either implied or express, and if express, either oral or written. In these kinds of transactions, they'd pretty much have to be express
and written. They would resemble software EULAs in their content, length, and visibility. I have a lot of DVDs and a lot of CDs. I've never seen licenses in any
of them. Note that a (typically exaggerated or inaccurate) statement of law such as 'public performance is prohibited' (see 17 USC 106 for the law that says so)
is not a license. If you download music in some lawful fashion -- from iTunes, for example -- then you're likely doing so pursuant to a license agreement that
would've been quite prominent. This is necessary since downloading is reproduction, and would otherwise infringe. Implied licenses exist for works that are put
up on web sites authorizedly.
I also would point out that the article is wrong when it says that it's illegal to sell used music. It is perfectly legal and quite commonplace. Caselaw and 17
USC 109 make it noninfringing to do so.
Frankly, if this is the caliber of their reporting on these issues, I wouldn't bother wrapping fish with their paper.
an opt into copyright rather than an opt out?
Yes. This way only works where the author wants a copyright will be copyrighted. If the author doesn't care enough to expend a token effort with regard to the work, why should we? Especially since copyright encourages authors to create what they otherwise would not. When we can identify works that he would've created anyway -- and an opt-in system does that -- he shouldn't get a copyright. He didn't need the incentive for that work, and since copyrights are a cost on the public, we shouldn't be wasteful.
Would you be for an opt into your health/credit privacy?
Not the same thing. Remember, we don't have copyright for the hell of it, or because authors deserve it or some nonsense, we have it for very specific public policy reasons. It's more like, oh, student loans. We want to encourage people to go to school even if they can't immediately afford it, but we don't just give out free money left and right.
What if the author is lying there in coma and cannot once again opt into his copyrights, would you deny him the rights to his work because of that?
No. First, there's not going to be many works to worry about from that author, unless he's typing away at a word processor while in a coma. The only pending works will be those he had already made and hadn't copyrighted. Second, in that kind of situation, there are usually guardians who can make decisions for the comatose author: spouses, parents, state-appointed guardians, etc. Third, that's a hell of an unusual situation; I'd rather worry about the more common cases in finding a general policy, and then deal with those outliers, rather than the other way around.
No, my personal belief is that while I am alive, my works should be copyrighted to me.
And my personal belief is that your works should not be. Traditionally, I've won, and when the eventual wholesale reform of copyright law comes along, I think I'm going to win again. Your argument is the one of the copyright maximalist who got us into this rotten situation with regard to copyright. It's a bad argument.
Not particularly. I got it off of PACER, which charges a small fee and requires an account. I could repost it somewhere of course (see 17 USC 105), but I haven't really got anyplace to do that in light of the traffic I think it might result in for a time. Sorry.
Mind giving me a general idea about what those ways are, so I can learn them
Many of the terms used in the copyright statutes are defined in 17 USC 101. Here's the definition of a derivative work:
If it isn't on the list, it isn't a derivative work. So it has to have been recast, transformed, or adapted, or on the laundry list (e.g. art reproduction), or it has to be editorial changes as listed that are sufficient and creative enough to satisfy the originality requirement of copyright.
This would likely cover what happened in this case, as an abridgement, or modifications that satisfy originality. And yet the court felt that it wasn't a derivative because it wasn't transformative (which is really a fair use issue, not a derivative issue) and it wasn't transformative because it didn't add new material, it only removed material (a big misreading of caselaw). If there's an appeal, which I understand is unlikely, I would think that this would be likely to get fixed. Like I've said, it's an odd decision, but probably the outcome is correct if not how the court arrived there.
This I completely disagree with, when you buy most items (specifically, but not exclusively, copyrighted items), by opening/buying/using you agree to the license contained within.
Most items don't have a license contained within. For example, most copies of copyrighted works such as books, movies, posters, CDs, etc. Software is about the only place you ever see this sort of thing. And some courts (e.g. Klocek v. Gateway) have found those EULAs to be void. They could still be agreed to, but merely buying the item isn't enough. Other courts have said that they are valid (this all hinges on how you read the UCC) but they remain quite rare.
I have a lot of DVDs and I've got to say that I've never seen a license on any of them. Quick and dirty, threatening-sounding restatements of the law (e.g. it's illegal to publicly perform the movie) are not licenses. Compare with a typical software EULA which is obviously trying to be a license.
Actually, the derivative right in copyright didn't exist until the mid-19th century or so, so I'd say that the framers could not have given a rat's ass about sufficiently edited works. If they had cared, they would've covered it in the law.
Lets remmember the point of the copyright privlidge.
To keep people from claiming your material
No, that's not it at all.
The point was to promote the progress of science. This means encouraging the creation of original works, but it also requires encouraging the creation of derivative works, and in having no, or minimal copyright, so that everyone is as free as possible with regard to those works.
In fact, copyright has traditionally never cared about credit, and even today, as warped and awful as it is, it only rarely does, and wouldn't for a movie.
I don't see why we should allow someone to use copyrighted work of others to make money without first getting permission from the holders of the copyright.
Really? What if you buy a copy of a computer program which is shipped as source, and you want to use it to make money? The law currently allows you to compile it or otherwise modify it so it'll run. There are other current examples.
Copyrights should apply within a limited timeframe - in case of a person, they should apply as long as the person is alive (my believe, but YMMV,) and in case of corporations copyrights should not exceed some time period that maybe just as long as life of a patent (20 years?)
Why so long? And so monolithic? I'd argue for very short terms, and multiple renewals of the terms so that the copyright won't last long in any event, and will not last longer than the author is interested in maintaining it. Maybe 25 years tops, and that's actually quite generous given the economic studies which tend toward a 15 year max.
I think the point that the vast majority of people are missing, is that at it's essence, this third party company is creating a derivative work For Profit.
Ironically, the court in this case said that they did not create a derivative work at all. I agree with you that they did, but just FYI.
If this was a non-profit group, such as a church this would be 100% legal.
That's not at all true.
However, editing a work in any way makes the current iteration of the production a Derivative
No, not in any way. It would have to be in certain specific ways.
and that changes the copyright statutes and precedents that apply to this.
No, not really. It means it's a 106(3) case instead of a 106(1) case. That's about it.
involves a transfer of licenses
There are no licenses involved in this case at all. When an ordinary customer buys a DVD at the Best Buy, he buys it. There is no license.
It certainly isn't the right of some third-party like Cleanflix to decide how a movie is edited.
Why not? Seriously, there may be a good reason, but you haven't suggested one.
This has to do with a for-profit company making money by making edited copies of someone else's work and selling those copies.
It is possible to have commercial fair use, and in fact it's relatively common. It's just trickier than noncommercial fair use. Frankly, the judge in this case made some very strange rulings on derivatives and fair use. I don't think the ultimate outcome would be any different, but I do think that there's a more credible fair use argument than he found.
Actually, doing that is perfectly okay; there's a law specifically allowing it for just this sort of scenario, at 17 USC 110(11). These defendants got in trouble for how they did it, not what they did. If their methods had been different, they'd be free and clear.
Actually copyright (and patents) is explicitly mentioned in the constitution as something the Federal Government is responsible for. I'm not sure legislation at the state level is even constitional, not without an act of Congress anyway.
That's incorrect; states are free to do so as well, and they do, so long as federal supremecy is respected.
And, for what it's worth, protecting the integrity of artistic works strikes me as a worthy use of copyright. Nor is it necessary to be a giant cartel to win, as Gilliam vs ABC (one of the first "moral rights" cases) proves.
That was not a moral rights case, and it is a totally unworthy avenue for copyright to go down. Copyright is about promoting the public interest, and the public is served just as much from unauthorized derivatives as it is from encouraging original works. The only real issue is how much of our rights in works do we want to temporarily give up in order to encourage the creation of original works. Artistic integrity is totally irrelevant to copyright policy.
Actually, that power is specifically granted to Congress as far as intellectual property is concerned. The Constitution is pretty clear that it's a federal power.
Well, remember that all the powers of the federal government originate in the states and the people. The federal government hasn't got any inherent powers. As it happens, copyright has never been exclusively federal. Most of the states had their own copyright laws prior to the creation of the current government, and continued to have them where they did not conflict with federal laws (since the supremecy clause would favor the federal government). Even today, there are still some active state copyright laws on the books. Presumably the federal government could preempt all of them (it has preempted most) in order to make sure that the federal laws worked in the manner that they desired, but they haven't, and it still wouldn't make copyright laws an inherently federal-only area of legislation.
Of course, the Constitution is also pretty clear that artificial monopolies (patents, copyrights, etc.) on intellectual property are supposed to be granted "for limited times."
No, it only says that for copyrights and patents. Trademarks and trade secrets are under the commerce clause, which has no limited times requirement, and no requirement of promoting progress.
Not especially. I got it off of PACER, which you have to register and pay for. I could repost it somewhere -- it's not copyrighted (see 17 USC 105) -- but I imagine it would get a lot of traffic since it generally isn't up yet. If you've got someplace I could upload it to, I'd be happy to do so. It's a 48kB PDF.
Still though, it's fairly dull, other than having a really weird derivative work and fair use analysis, neither of which I think will catch on.
Well, I think you're confusing how copyright functions with why it functions. Remember, the public goals are three: getting original works created, getting derivative works created, and having minimal or no copyright. The idea is that for a bigger eventual payoff in goals 2 and 3, we limit them temporarily for a bigger immediate payoff in goal 1. But the idea is that the work eventually hits the public domain, which satisfies goal 3, and opens the door for goal 2 since now anyone can create derivatives. If any of the goals are more highly ranked than the others, I'd say it's the third one that is on top, since we require that it eventually get satisfied.
Of course, the law lately has really gone off track from our policy goals, and I'd like to see it get back on track.
good to see you around.
/. but this is the most posting I've done in ages, and fortunately I can do this quite easily.
Yeah, I've been really busy for a month, and work shows no signs of slowing down anytime soon. I try to keep an eye on
Re: the book, it depends on whether a derivative was created. While intent is not required for infringement, a derivative work is a work of authorship, and arguably some intent is needed to create one of those. (Or a least, that's Nimmer's argument, and it's never really come up in any cases)
So I'd say that if the book fit the 17 USC 101 definition of a derivative, and you intended to create a work, then it would be infringing. Oddly, this court decided that merely removing material wasn't enough to make the work derivative, so they'd disagree. This case was decided on the reproduction and distribution rights. Fair use might work, but I wouldn't put too much stock in it. And if the chopped up work wasn't a derivative (e.g. it was individual pages outside of the 9th Circuit (which is likely to get overturned on the A.R.T. opinion if it ever goes up to the S.Ct.) which happens sometimes) then you'd be ok.
It's fairly fact-dependent.
For marginalia, etc. again see what constitutes a derivative work. Temper it with fair use. In practice, I'd say that individuals could get away with it on small scales, and businesses working at large scales could not. Sympathy toward defendants is a factor.
"Reading in" protections like this (a practice disparagingly called judicial activism when folks don't like the results) has tremendously expanded the scope of copyright over the years.
Actually, Congress is infinitely more to blame than the courts. The courts hardly create any copyright law at all, and their interpretations are generally in line with what Congress wanted anyway. Please assign blame to the right branch in the future.
Myths, even when there's some truth in them, shouldn't make law.
I concur, but even I, a strict copyright utilitarian and a person sympathetic to the defendants (though I think their censorship practices are silly), wouldn't really have had the room to side with them due to the statutes.