Remember, they're not buying the copies of Gladiator, they are buying a license to Gladiator, which doesn't include the right to make derivative works.
That is incorrect. When you buy a DVD in an ordinary transaction, you are in fact buying the copy. And you can do anything you want with that copy, so long as it isn't illegal. Making unauthorized derivatives of copyrighted works is illegal, so long as the copyright exists. When the work enters the public domain, it stops being illegal.
Why should it be formalized? We don't want a legal system that's highly simple and predictable so much as we want one that serves the interests of justice. Humans, their behavior and society, are pretty messy. Little surprise that our legal systems would tend to be as well.
Largely wrong. As a copyright lawyer, I can say that your data set was not probably not protected, or at least not that much. The raw data is uncopyrightable. What data your company chose to select and how it arranged it might have been copyrightable, but only if you were creative about it. Of course, selecting all of it is never creative, so all creative choices in selection will necessarily result in a rather limited map. Likewise, it's tricky to imagine an arrangement of the data that is machine readable being particularly creative.
The map as presented might be copyrightable, subject to the same conditions, and perhaps also on its artistic merits (though unoriginal conventions such as blue for water would not be, obviously).
What your company probably mostly relied upon were trade secrets and contracts. (And how they were handled indicates that you might have had a tricky time with a good trade secret case)
Of course someone could make a map of the same area - they just have to collect their own data instead of ripping off someone else's data (or licence the existing data).
That is incorrect, in the US. A fact is not copyrightable, and so it is perfectly lawful to collect facts from someone else's data just as much as it is to collect them from the underlying phenomena. When you have a collection of facts, the most you can possibly copyright is the creative selection of the facts, and their creative arrangement. But not all selections and arrangements are creative; a telephone white pages of all people living in a geographic area, arranged in last name, first name order, with names, addresses, and numbers, is utterly uncreative, and utterly unprotectable.
someone has gone to a lot of effort to collect the data, why should you automatically get it for free?
Because copyright does not and never has protected mere effort. It is meant to encourage creativity. There is no protection for someone who works very hard to compile hard to collect facts in an uncreative way. There is protection for someone who writes a simple poem with no real effort at all in just a few moments.
For more on this, I suggest reading the Supreme Court's opinion in the Feist case.
Also, n.b. that while some people said that false data inserted into the true data can result in protection, they are wrong. False facts and theories which are presented as actual facts are treated just like actual facts. You don't get to have your cake and eat it too. All that false facts are good for is showing that copying did take place. There's nothing special about them otherwise.
And you ARE depriving them of something: the ability to sell and control their product, their creation, as they see fit.
To be a little pedantic, the 'deprivation' would be of the ability to prevent others from selling copies. Copyright isn't a right to do anything; it's a right to prevent others from doing things. It's like a negative easement. This is why if you write something libelous, or you create child porn, or whatnot, that copyright isn't going to let you publish it. It will let you prevent other people from publishing it, but you can't publish it either. This is all more clear in the patent world, where patents often block one another.
Anyway, preventing someone from exercising a right is known as 'infringement.' When the government keeps you from speaking, they infringe on your right of free speech. And so, when someone infringes on the rights in a copyright, the correct term is copyright infringement.
It's not really a deprivation, since the rights aren't taken away. It's more like interfering with the rights.
You act is if just because something can be copied nearly effortlessly, it should be, and indeed, MUST be, for the good of all humanity.
Well, actually, that's correct. It is good, and it ought to be done. One of the goals of copyright, after all, is to encourage works to be copied and traded and used, freely, by the world. Works that are locked up are of little value. We might encourage the creation of more works to enjoy freely by denying ourselves that freedom for a period of time, but ultimately it is good for all humanity to not have that last any longer than necessary.
That's a good post. Let me remind you, however -- not in a contradictory way -- that while the absolute difficulty and expense of publishing has gone down, the difference in difficulty and expense between authorized and unauthorized publishers (i.e. authors and pirates) has generally been nil, or has favored the authorized side. There is, after all, no technology that pirates can use that authors cannot. And often economies of scale, and the ability to act more openly, favor the authors. A burned CD is more costly to make than a pressed one, and if it weren't, RIAA members would just buy burners. Anyway, just something to bear in mind.
Unacceptable answers are ones in which anybody producing non-physical goods like books, music, movies or software has to do it "for the love of it" and not make any money.
Why is that unacceptable? It may very well be that the best copyright system -- which is to say the system that best serves the public interest -- isn't all that beneficial for authors. Frankly, I'm not interested in subsidizing authors, and copyright is a subsidy. Rather, I'm interested in benefiting from having them create original and derivative works and in being as free as possible to enjoy those works (where free is used in both the beer and freedom senses). So, to the extent that it benefits me more than it costs me to do so, I'll gladly support copyright to subsidize artists. But no more than that.
This may mean that copyright is reduced such that hundred million dollar movies or whatever are not feasible to make. This is a factor to consider, but if I'm still better off with less copyright and no expensive movies than I would be with more copyright and expensive movies, then why would I act against my own interests and support the latter alternative?
I mean, we don't have anyone making trillion dollar movies. This is because they are not feasible. If we drastically expanded copyright law (e.g. it lasts forever, it covers anything vaguely similar, it pulls material out of the public domain, you get charged whenever you even talk about it, etc.) then maybe they could be. But I think that would be a bad idea. Do you disagree?
A final unacceptable answer is to say, there should be copyright but no way to enforce it (like the DMCA).
The courts are the appropriate way to enforce it. Self help methods such as DRM are not in the public interest. We can't ban them without violating the First Amendment, but we can certainly discourage the practice by giving it no real legal protection (such as the DMCA) and in fact having the government support efforts to attack DRM, making DRM'ed works public domain works automatically, etc.
But you know what? I never saw a credible alternative. Just a bunch of people whining that the current system isn't good enough.
So? Identifying problems is not the same thing as fixing problems. If I feel bad, have a fever, etc. then I might accurately discover that I'm sick. But I'm not a doctor, and for anything serious, I would not know how to cure myself. Instead, I would go to a doctor, and have him help me.
If a lot of people are bitching about copyright, this is a strong indication that it is broken. Historically almost no one has cared about copyright or even noticed it. The change basically happened in the late 20th century, at about the time that the law was being reformed more often than usual, and expanding in unprecedented and dramatic ways. Frankly, as a copyright lawyer who is interested in reforming the system, I think that a significant metric for success would be how much copyright law gets ignored after being reformed. Of course, hopefully it isn't ignored too much, since complacancy is what got us into this mess. But I'd like to see it become dull and inoffensive again, and this means changing the law to adhere to what people find unworthy of notice, rather than trying to change people.
There is simply no such thing as non-criminal theft.
Well... there are torts of conversion and trespass to chattels which cover the same acts. And remember that all criminal copyright infringements are also civil copyright infringements, and that you can be brought into court twice, by two different opposing parties, for different offenses, which stem from the same, single action. (And no, this isn't double jeopardy, as that is defined in the law)
In the U.S., all copyright law is federal.
That's not actually true, but certainly state copyright laws are largely ignored.
If copyright infringment equalled theft, the Federal government would only have power to regulate actions under the interstate commerce clause
I don't see why. There are plenty of federal crimes that have nothing to do with interstate commerce.
all violations would involve showing some criminal action crossed state lines as a precondition (or this would be another abuse of the interstate commerce clause
Heh. That's far from how interstate commerce works. Even if you don't go to the extreme in Wickard, it's still got to be more expansive than that if it is to mean anything at all.
If Infringement=Theft was accepted, the federal government would still, by default, be prohibiting states from implementing and enforcing criminal and civil laws re. copyright.
And? They do that kind of thing all the time. In fact, with regard to copyright, the federal government has preempted most state laws on the subject. This is perfectly ordinary, as a part of federal supremecy.
These include laws that in some cases predated the founding of the Union and came from English common law.
Meh, copyright is really English statutory law. There was handwaving about there having been common law after the statutes had been enacted, but it really never amounted to anything of note.
As it stands, it's the principle that the U. S. Congress is the only body the constitution empowers to control copyright,
Yes, but so what? Remember, the federal government has no inherent powers. All of its powers come from either the people or the states. The states, unlike the federal government, are plenary governments. They inherently have the power to legislate about copyright; the federal constitution can't give them that. So long as there is no issue of federal supremecy in play (as currently is the case for most things vis-a-vis copyright) they're free to legislate as they like. And they do, and always have, really.
Current civil law imposes a 5x multiple for infringement that is merely willful.
No it doesn't. It raises the ceiling for statutory damages; it doesn't multiply.
The copyright holder of a DVD copy of a movie is granting you an explicit right to show it for private purposes
No. This is because there is no right within copyright to control private performances. The only performances copyright deals with are public performances. What actually happens is that the owner of the DVD can do anything lawful that he wants with it, whether he wants to use it as a frisbee or use it to watch the content within. No one owns the work itself. And the copyright doesn't touch on private performances. Thus, when you buy a DVD, performing the work privately is one of the legal things you can do.
In other words, the distribution license for the content you purchased allows you to redistribute the content to others as long as admission is not open to the general public, and you do not make a profit.
Not only no, for the same reason as above, but also performance is not the same thing as distribution. Distribution is when someone else ends up with a copy -- where a copy is defined as a material object, the sort you could literally touch -- whether that's the original copy you got from the store, or whether a new copy is made, e.g. by burning another identical DVD, or reproducing the bits in a hard drive, or whatever.
You have more rights than those granted to you by this license.
No, there is no license involved with ordinary consumer DVDs bought in a store. No license at all.
US law allows you to sell the DVD and transfer your license.
No, it doesn't, not only because there is no license, but whether licenses can be transfered depends on what the license says; there's no copyright law on the subject.
You can even rent the DVD to someone else, and make a profit by renting it often enough to recoup your initial costs.
Surprisingly, given how wrong you've been so far, yes.
Moreover, you have fair use rights to use portions of the work for parody, commentary, or criticism. A judge will look at the purpose and character of your use, and one such use that has been found to be valid for fair use in some cases is for education.
I wouldn't call fair use a right per se. Free speech is a right, whether you're using a copyrighted work or not. Of course, copyright can override free speech at times. Fair use is a defense to copyright such that where it applies, there is no copyright, and thus no bar to free speech. Also judges look at more factors than merely the purpose and character of the use.
Go hire a real lawyer.
Yes. Because you don't know too much about copyright law.
In the US, it's possible for artists to sign away all rights to their work.
Well, yes and no. But that's a transfer. Works made for hire -- which have to be such before they're created, as you can't call a work a work made for hire after it's made -- are works where the author isn't the person whose hands did the work. Generally where an employee makes works as part of his job, they're works made for hire. It's rare to be able to have a binding contract that makes a work a work made for hire, though.
In any event, artists don't have to do this if they don't want to, so I see nothing wrong with giving them the freedom to do this. I'd go further in fact and get rid of 17 USC 203, and allow binding transfer of renewal rights and future terms. To do otherwise really seems unfair.
If obvious patents aren't allowed, then IT companies will simply start burying the patent office in such detailed applications that they won't be able to declare them obvious.
They're not allowed now, they're just getting through.
And more detail doesn't make it nonobvious. The canonical example of a nonobvious patent is one for a doorknob where the material of the knob is different for no particular reason, e.g. instead of being metal, it's wood. Specifying which wood, and how the wood is selected, etc. doesn't cure the flaw in the application.
Not a huge distinction, however. The character of Mickey Mouse as he was in Steamboat Willy would enter the public domain. The character of Mickey Mouse as he is now, would not. So people could make new Mickey Mouse works, but they'd be using the 1920's version of the mouse (which frankly, is more interesting IMO than more recent ones).
You reminded me of a very funny story about the Court that is in Woodward's book 'The Bretheren.' Basically, prior to the current obscenity standard being fixed, they tended to get a lot of cases on the subject. In the serious interest of being informed, they'd hold a big porn movie watching session, with all the films that were in cases before them. A joke among the clerks was that periodically J. Stewart would go "I see it, I see it!"
They've been known to. They are in an independent and equal branch of government and insulated from political concerns. (And also the President doesn't introduce legislation, but he can support it when some lacky in Congress does it for him)
No, it's Constitution > Laws & Treaties. Where laws and treaties conflict, courts will jump through hoops trying to read them so that they don't, since they presume Congress didn't mean for them to. Where that's unavoidable, whichever is most recent wins.
As for your Reid case, the reason it was limited is probably because it was a capital case. Federal courts will not make broader rulings than they have to, due to the cases and controversies requirement in Art. III. If the case had been about parking tickets and a parking ticket treaty, they would've limited it to parking tickets. It's up to the next guy, with a different kind of subject matter, to argue that the general rule helps him too.
You missed something. Treaties are law at the same level as federal law, and so the federal Constitution is still supreme over them. And many treaties as a result can't be self-executing (i.e. they are not laws binding on people) since the Constitution has certain procedural and substantive requirements that treaties might not satisfy. In those cases, while the treaty might still impose obligations on the US vis a vis the other parties to the treaty, it still doesn't mean anything domestically. However, Congress will pass a law through the normal process in order to comply with the treaty obligations, and that law is binding in the US. Copyright law is a good example. The Berne Convention obligates the US to make certain laws, but no one has rights under the Berne Convention. Instead Congress passed new copyright laws that met the standards imposed by the treaty.
I know that in performing arts the design (be it play-writing, music composition, etc...) can be covered by separate copyright than the performance (which is seen in the fact that lyrics and musical records are registered separately with the US copyright office).
Well, yes. They're different works, as evidenced by the number of people who perform works that they didn't write, e.g. musicians covering a song. Of course, remember that the performance has to be recorded in order to be a copyrightable writing. A performance that is merely 'in the air' so to speak and unrecorded is uncopyrightable too. There is actually an interesting case going on along these lines in the 2d Cir. I'm interested to see how it turns out.
In any case, the recording for an actor is likely a film or video. While his expressions and gestures and body position and so on might be chosen by him, they're also likely to be at the behest of the director and the written stage directions. Meanwhile the director also has a lot of control over the tableau, such as costuming, set design, cinematography, etc. along with the editing of the final piece. This is why I'd say that he is probably the person responsible for what ends up on the film, and not the actor, who lacks control beyond his own body. Similarly, photographers tend to be copyright holders for their photographs, not their subjects who are depicted. It all comes down to who had and exercised the kind of control we'd expect out of an author.
The fact that a person can be considered an employee with out a written employment agreement is probably a flaw in contract law or employment law (if such a thing exists).
Yes, employment law exists, and is a significant field of the law. It's not a flaw, it's just that courts will look to the essence of the relationship between the parties, rather than the formalities on the surface. If they are really employer and employee, despite their own confusion to the contrary, then that's how that works out.
just the validity and necessity of it in a capitalist society and therefor the need to protect a persons means of economic security
Well, I don't think it's necessary, and I don't think it really provides significant economic security. But I do think it is a valid idea, and a good one. The trick is simply implementing it properly. A good copyright law is likely to be a lot less restrictive than the law we have now. It might benefit authors less, yet be better for the public as a whole. So, I seek reform. But if I thought that no copyright law could possibly yield a better result than any copyright law could, I'd want to see it abolished. I'm merely looking for the outcome with the greatest utility.
I have previously argued that the anti-copyright movement is going to cause there to be even more stringent rules around property
That's funny, because I see the pro-strong-copyright movement as causing a reformist backlash (which I support). I think that there's really fewer people totally against copyright than you might think, and that a lot of them will be mollified with a better, reformed copyright. But even if not, they're still useful in that it makes my group moderate in comparison.;)
Assuming you mean 'art' in the common, modern sense, then sure. But so what? Copyrights are for general knowledge, and patents are for useful technology. The subject matter of copyright isn't meant to involve technological progress. Hell, many things are not copyrightable simply because they have a useful function!
Also n.b. that the Constitution refers to the progress of science and the useful arts. That is actually an archaic usage. In the late 18th century, science meant general knowledge, and the useful arts meant useful technology. There are still some remnants of this, e.g. advanced technology being state of the art, or patents being anticipated by prior art (i.e. earlier examples of the same technology), or patents having to be understandable to people having ordinary skill in the art (i.e. people familiar with the general area of technology at issue).
First of all, I do not care about art
Meh. That's an uncommon opinion, and I'm not really interested in catering to it. Most people like art. Highbrow, lowbrow, music, movies, books, paintings, photos, whatever. Almost everyone likes something.
And when I am talking about software I do not talk about Pac Man.
Why? It's a perfectly good example. Pac Man the game-in-general is uncopyrightable, but could have been patented. Pac Man the specific-implementation-of-the-game is copyrightable. Another specific implementation that functions just the same, i.e. which embodies the game-in-general, but which doesn't copy from another specific implementation is also copyrightable.
I appriciate that you have admited that your issues with copyright are entirely self intrest, unlike many others that think it is somehow for the betterment of society.
I think that you've misunderstood me; probably I haven't explained myself well.
I think that the purpose of copyright is to serve the public interest. The public interest is generally composed of several interests: 1) the interest in having original works created; 2) the interest in having derivative works created; 3) the interest in having works published; and 4) the interest in having no or minimal limits on what people can do with creative works, including owning copies, buying and selling copies, making copies, making derivatives, not having to pay for copies, etc.
That is, the public interest is self-interest; the public is not interested in helping any specific subset of the public, such as artists, but rather wants to help itself as a whole.
In any case, these are my interests as well.
While some people are of course altruistic, and that's fine, such charity has no place in a copyright system. It's inappropriate to give people monopolies over everyone out of the goodness of your heart, and in any case, copyright is ineffective as a system of charity. If you actually want to help artists charitably, just write them a check. Copyrights are about as valuable as lottery tickets; a few are worth a lot, and the vast majority aren't worth the paper they're printed on.
With current technology it cost less than a minimum wage workers week of pay to mass reproduce digital works.
But it's still not economically viable, except perhaps in the case of P2P networking. That's why CD factories use presses, not burners. Which, let me remind you, is a technology that authors and publishers are perfectly free to use just as much as anyone.
No it doesn't, and you would be niave to beleive so.
Well, that would indicate that the system is broken. As it happens, I think that it is right now, because the government is more concerned with the special interest groups in copyright, such as authors and publishers. They need to ignore them, and focus on the public interest. To some degree, what's best for the public will likely be beneficial (if not maximally so) for authors and publishers. But in the end, those groups should have to like it or lump it.
You have a very narrow view of copyright and works for hire.
No, I said that it's rare for contracts to cause a work to be a work made for hire. That can only happen for a few enumerated types of works, and requires the contract to be express, written, and signed by the parties. The employment situation is much more common, but does not hinge on what's in a contract, or whether there even is a contract, so long as there's not any express, written, signed statements disclaiming works being works made for hire.
Every time your sign an employement agreement you are agreeing to a contract that creates a work for hire situation.
That is not actually true. It is possible to be an employee for copyright purposes without formally having an employment relationship, and it is possible to have a formal employment relationship without being an employee for copyright purposes. CCNV v. Reid discusses a lot of the factors the courts will look at in deciding whether someone is an employee for copyright purposes. Certainly explicit contracts are a big help, but they don't always determine how things will end up.
This is what keeps actors from remainging the copyright holders of their performaces.
No, I'd say it's because actors are generally not authors for copyright purposes. For film, usually it's the director, maybe it's joint. I would say that fixation issues play a big part here. There was an instructive case -- Burrow-Giles v. Sarony -- on a similar matter involving whether photographs were copyrightable. Of course, you want to cover your ass anyway, with carefully worded agreements.
I would be willing to find you many quotes and case law to back up my statements if I need to.
And I'm a copyright lawyer, by trade. So far I know what you're referring to, so that's ok.
When you , at your own home, copy a CD, you have only paid for the cost of the media and the machine to make the copy
So? I did not say that pirates can have lower costs altogether. I said that there is no technological advantage for pirates. Remember, you said that in the pre-copyright days, copying was difficult. And I pointed out that it has never been easier for pirates than authors, whatever the level of technology was at any point in time.
Yes, all these others have been paid for by a publisher, but a publisher will not continue to do so if they can not make even the slightest profit on future recordings
Unless, of course, they do. There are other incentives besides money.
But really, you're missing the big picture. Yes, authors and publishers are self-interested. They often desire money, and will do things such as creating or publishing works in order to get money.
However I, like all members of the public, am equally self interested. I want those works, and I don't want to pay a penny more than I have to. Therefore, I will, through the government that represents my interests, only give authors the smallest amount of copyright that provides me with the greatest amount of gain. I am not going to subsidize authors and publishers with artificial monopolies they can wield against me, unless I end up better off with such a system than I would be without it.
You've said that they aren't charities. Well, neither am I. We can come to a mutually satisfactory arrangement (though I'm really uninterested in whether they are maximally satisfied, so long as I am), but don't forget that the system has to please the public too.
The degree of piracy right now is a strong indicator that it does not. That means that the system is broken. Fixing it might well result in fewer works being created. But if the public is nevertheless better off (since both more works and less copyright are desired) then it's for the best.
This is true, there are many differen terms to contractual agreements for works for hire, or other comissioned works.
Meh. It's rare to be able to have a contract that creates a work made for hire situation. It's harder than you think. In my wedding photographer example, those works will never be a work made for hire. The best I can hope for is to buy the copyright from him, and to be stuck with a statutory reversionary right hanging over my head. It's quite unacceptable.
But this brings up my point about different arts being treated differently. Recorded arts and digital arts (music, games and movies) are nearly always a work for hire with transfer of copyright (music is often somewhere in between).
No, it doesn't. There are some works treated differently regarding works made for hire, but they're generally uncommon. The main reason why works are works made for hire is because they are made by employees. The kind of work doesn't matter. Hire a portrait painter as an actual employee (rather than on a commission basis) and you are considered the author. Transfers are a totally different matter, and n.b. that artists working for hire are never the copyright holder, and thus never have anything to transfer. You should probably read up on how this actually works.
Copyrights do impede progress, but the idea is that we can increase progress by more than we diminish it. For example, part of the progress of science is preservation and dissemination. While arguably one could paint a painting that was as good as Guernica, it really would not be a substitute. Our knowledge is not only fostered quite well by making copies of Guernica and distributing them so that everyone has got one, but it also frees up artists from having to make works that try (and fail) to substitute for Guernica, so that they can make something else, if they prefer, also fostering knowledge.
Even with software, a clone of Pac Man can be perfectly entertaining, but it lacks authenticity. It's perfectly good for people to make workalikes, but it's also nice for them to make original things instead, as well.
Slashdot Mirror
Remember, they're not buying the copies of Gladiator, they are buying a license to Gladiator, which doesn't include the right to make derivative works.
That is incorrect. When you buy a DVD in an ordinary transaction, you are in fact buying the copy. And you can do anything you want with that copy, so long as it isn't illegal. Making unauthorized derivatives of copyrighted works is illegal, so long as the copyright exists. When the work enters the public domain, it stops being illegal.
Why should it be formalized? We don't want a legal system that's highly simple and predictable so much as we want one that serves the interests of justice. Humans, their behavior and society, are pretty messy. Little surprise that our legal systems would tend to be as well.
What they are protecting is the output signal from their satellites' atomic clocks, and measurements of their exact orbits.
And those are facts, and so are uncopyrightable under US law. See 17 USC 102(b). They're not creative in any respect whatsoever.
Largely wrong. As a copyright lawyer, I can say that your data set was not probably not protected, or at least not that much. The raw data is uncopyrightable. What data your company chose to select and how it arranged it might have been copyrightable, but only if you were creative about it. Of course, selecting all of it is never creative, so all creative choices in selection will necessarily result in a rather limited map. Likewise, it's tricky to imagine an arrangement of the data that is machine readable being particularly creative.
The map as presented might be copyrightable, subject to the same conditions, and perhaps also on its artistic merits (though unoriginal conventions such as blue for water would not be, obviously).
What your company probably mostly relied upon were trade secrets and contracts. (And how they were handled indicates that you might have had a tricky time with a good trade secret case)
Of course someone could make a map of the same area - they just have to collect their own data instead of ripping off someone else's data (or licence the existing data).
That is incorrect, in the US. A fact is not copyrightable, and so it is perfectly lawful to collect facts from someone else's data just as much as it is to collect them from the underlying phenomena. When you have a collection of facts, the most you can possibly copyright is the creative selection of the facts, and their creative arrangement. But not all selections and arrangements are creative; a telephone white pages of all people living in a geographic area, arranged in last name, first name order, with names, addresses, and numbers, is utterly uncreative, and utterly unprotectable.
someone has gone to a lot of effort to collect the data, why should you automatically get it for free?
Because copyright does not and never has protected mere effort. It is meant to encourage creativity. There is no protection for someone who works very hard to compile hard to collect facts in an uncreative way. There is protection for someone who writes a simple poem with no real effort at all in just a few moments.
For more on this, I suggest reading the Supreme Court's opinion in the Feist case.
Also, n.b. that while some people said that false data inserted into the true data can result in protection, they are wrong. False facts and theories which are presented as actual facts are treated just like actual facts. You don't get to have your cake and eat it too. All that false facts are good for is showing that copying did take place. There's nothing special about them otherwise.
And you ARE depriving them of something: the ability to sell and control their product, their creation, as they see fit.
To be a little pedantic, the 'deprivation' would be of the ability to prevent others from selling copies. Copyright isn't a right to do anything; it's a right to prevent others from doing things. It's like a negative easement. This is why if you write something libelous, or you create child porn, or whatnot, that copyright isn't going to let you publish it. It will let you prevent other people from publishing it, but you can't publish it either. This is all more clear in the patent world, where patents often block one another.
Anyway, preventing someone from exercising a right is known as 'infringement.' When the government keeps you from speaking, they infringe on your right of free speech. And so, when someone infringes on the rights in a copyright, the correct term is copyright infringement.
It's not really a deprivation, since the rights aren't taken away. It's more like interfering with the rights.
You act is if just because something can be copied nearly effortlessly, it should be, and indeed, MUST be, for the good of all humanity.
Well, actually, that's correct. It is good, and it ought to be done. One of the goals of copyright, after all, is to encourage works to be copied and traded and used, freely, by the world. Works that are locked up are of little value. We might encourage the creation of more works to enjoy freely by denying ourselves that freedom for a period of time, but ultimately it is good for all humanity to not have that last any longer than necessary.
That's a good post. Let me remind you, however -- not in a contradictory way -- that while the absolute difficulty and expense of publishing has gone down, the difference in difficulty and expense between authorized and unauthorized publishers (i.e. authors and pirates) has generally been nil, or has favored the authorized side. There is, after all, no technology that pirates can use that authors cannot. And often economies of scale, and the ability to act more openly, favor the authors. A burned CD is more costly to make than a pressed one, and if it weren't, RIAA members would just buy burners. Anyway, just something to bear in mind.
Unacceptable answers are ones in which anybody producing non-physical goods like books, music, movies or software has to do it "for the love of it" and not make any money.
Why is that unacceptable? It may very well be that the best copyright system -- which is to say the system that best serves the public interest -- isn't all that beneficial for authors. Frankly, I'm not interested in subsidizing authors, and copyright is a subsidy. Rather, I'm interested in benefiting from having them create original and derivative works and in being as free as possible to enjoy those works (where free is used in both the beer and freedom senses). So, to the extent that it benefits me more than it costs me to do so, I'll gladly support copyright to subsidize artists. But no more than that.
This may mean that copyright is reduced such that hundred million dollar movies or whatever are not feasible to make. This is a factor to consider, but if I'm still better off with less copyright and no expensive movies than I would be with more copyright and expensive movies, then why would I act against my own interests and support the latter alternative?
I mean, we don't have anyone making trillion dollar movies. This is because they are not feasible. If we drastically expanded copyright law (e.g. it lasts forever, it covers anything vaguely similar, it pulls material out of the public domain, you get charged whenever you even talk about it, etc.) then maybe they could be. But I think that would be a bad idea. Do you disagree?
A final unacceptable answer is to say, there should be copyright but no way to enforce it (like the DMCA).
The courts are the appropriate way to enforce it. Self help methods such as DRM are not in the public interest. We can't ban them without violating the First Amendment, but we can certainly discourage the practice by giving it no real legal protection (such as the DMCA) and in fact having the government support efforts to attack DRM, making DRM'ed works public domain works automatically, etc.
But you know what? I never saw a credible alternative. Just a bunch of people whining that the current system isn't good enough.
So? Identifying problems is not the same thing as fixing problems. If I feel bad, have a fever, etc. then I might accurately discover that I'm sick. But I'm not a doctor, and for anything serious, I would not know how to cure myself. Instead, I would go to a doctor, and have him help me.
If a lot of people are bitching about copyright, this is a strong indication that it is broken. Historically almost no one has cared about copyright or even noticed it. The change basically happened in the late 20th century, at about the time that the law was being reformed more often than usual, and expanding in unprecedented and dramatic ways. Frankly, as a copyright lawyer who is interested in reforming the system, I think that a significant metric for success would be how much copyright law gets ignored after being reformed. Of course, hopefully it isn't ignored too much, since complacancy is what got us into this mess. But I'd like to see it become dull and inoffensive again, and this means changing the law to adhere to what people find unworthy of notice, rather than trying to change people.
No, there are criminal trespass laws.
There is simply no such thing as non-criminal theft.
Well... there are torts of conversion and trespass to chattels which cover the same acts. And remember that all criminal copyright infringements are also civil copyright infringements, and that you can be brought into court twice, by two different opposing parties, for different offenses, which stem from the same, single action. (And no, this isn't double jeopardy, as that is defined in the law)
In the U.S., all copyright law is federal.
That's not actually true, but certainly state copyright laws are largely ignored.
If copyright infringment equalled theft, the Federal government would only have power to regulate actions under the interstate commerce clause
I don't see why. There are plenty of federal crimes that have nothing to do with interstate commerce.
all violations would involve showing some criminal action crossed state lines as a precondition (or this would be another abuse of the interstate commerce clause
Heh. That's far from how interstate commerce works. Even if you don't go to the extreme in Wickard, it's still got to be more expansive than that if it is to mean anything at all.
If Infringement=Theft was accepted, the federal government would still, by default, be prohibiting states from implementing and enforcing criminal and civil laws re. copyright.
And? They do that kind of thing all the time. In fact, with regard to copyright, the federal government has preempted most state laws on the subject. This is perfectly ordinary, as a part of federal supremecy.
These include laws that in some cases predated the founding of the Union and came from English common law.
Meh, copyright is really English statutory law. There was handwaving about there having been common law after the statutes had been enacted, but it really never amounted to anything of note.
As it stands, it's the principle that the U. S. Congress is the only body the constitution empowers to control copyright,
Yes, but so what? Remember, the federal government has no inherent powers. All of its powers come from either the people or the states. The states, unlike the federal government, are plenary governments. They inherently have the power to legislate about copyright; the federal constitution can't give them that. So long as there is no issue of federal supremecy in play (as currently is the case for most things vis-a-vis copyright) they're free to legislate as they like. And they do, and always have, really.
Current civil law imposes a 5x multiple for infringement that is merely willful.
No it doesn't. It raises the ceiling for statutory damages; it doesn't multiply.
Wow, no.
The copyright holder of a DVD copy of a movie is granting you an explicit right to show it for private purposes
No. This is because there is no right within copyright to control private performances. The only performances copyright deals with are public performances. What actually happens is that the owner of the DVD can do anything lawful that he wants with it, whether he wants to use it as a frisbee or use it to watch the content within. No one owns the work itself. And the copyright doesn't touch on private performances. Thus, when you buy a DVD, performing the work privately is one of the legal things you can do.
In other words, the distribution license for the content you purchased allows you to redistribute the content to others as long as admission is not open to the general public, and you do not make a profit.
Not only no, for the same reason as above, but also performance is not the same thing as distribution. Distribution is when someone else ends up with a copy -- where a copy is defined as a material object, the sort you could literally touch -- whether that's the original copy you got from the store, or whether a new copy is made, e.g. by burning another identical DVD, or reproducing the bits in a hard drive, or whatever.
You have more rights than those granted to you by this license.
No, there is no license involved with ordinary consumer DVDs bought in a store. No license at all.
US law allows you to sell the DVD and transfer your license.
No, it doesn't, not only because there is no license, but whether licenses can be transfered depends on what the license says; there's no copyright law on the subject.
You can even rent the DVD to someone else, and make a profit by renting it often enough to recoup your initial costs.
Surprisingly, given how wrong you've been so far, yes.
Moreover, you have fair use rights to use portions of the work for parody, commentary, or criticism. A judge will look at the purpose and character of your use, and one such use that has been found to be valid for fair use in some cases is for education.
I wouldn't call fair use a right per se. Free speech is a right, whether you're using a copyrighted work or not. Of course, copyright can override free speech at times. Fair use is a defense to copyright such that where it applies, there is no copyright, and thus no bar to free speech. Also judges look at more factors than merely the purpose and character of the use.
Go hire a real lawyer.
Yes. Because you don't know too much about copyright law.
There are other problems as well, such as infringement being non-actionable, rather than non-infringing. All in all, it's a bad law.
In the US, it's possible for artists to sign away all rights to their work.
Well, yes and no. But that's a transfer. Works made for hire -- which have to be such before they're created, as you can't call a work a work made for hire after it's made -- are works where the author isn't the person whose hands did the work. Generally where an employee makes works as part of his job, they're works made for hire. It's rare to be able to have a binding contract that makes a work a work made for hire, though.
In any event, artists don't have to do this if they don't want to, so I see nothing wrong with giving them the freedom to do this. I'd go further in fact and get rid of 17 USC 203, and allow binding transfer of renewal rights and future terms. To do otherwise really seems unfair.
If obvious patents aren't allowed, then IT companies will simply start burying the patent office in such detailed applications that they won't be able to declare them obvious.
They're not allowed now, they're just getting through.
And more detail doesn't make it nonobvious. The canonical example of a nonobvious patent is one for a doorknob where the material of the knob is different for no particular reason, e.g. instead of being metal, it's wood. Specifying which wood, and how the wood is selected, etc. doesn't cure the flaw in the application.
Not a huge distinction, however. The character of Mickey Mouse as he was in Steamboat Willy would enter the public domain. The character of Mickey Mouse as he is now, would not. So people could make new Mickey Mouse works, but they'd be using the 1920's version of the mouse (which frankly, is more interesting IMO than more recent ones).
You reminded me of a very funny story about the Court that is in Woodward's book 'The Bretheren.' Basically, prior to the current obscenity standard being fixed, they tended to get a lot of cases on the subject. In the serious interest of being informed, they'd hold a big porn movie watching session, with all the films that were in cases before them. A joke among the clerks was that periodically J. Stewart would go "I see it, I see it!"
They've been known to. They are in an independent and equal branch of government and insulated from political concerns. (And also the President doesn't introduce legislation, but he can support it when some lacky in Congress does it for him)
No, it's Constitution > Laws & Treaties. Where laws and treaties conflict, courts will jump through hoops trying to read them so that they don't, since they presume Congress didn't mean for them to. Where that's unavoidable, whichever is most recent wins.
As for your Reid case, the reason it was limited is probably because it was a capital case. Federal courts will not make broader rulings than they have to, due to the cases and controversies requirement in Art. III. If the case had been about parking tickets and a parking ticket treaty, they would've limited it to parking tickets. It's up to the next guy, with a different kind of subject matter, to argue that the general rule helps him too.
Sometimes. It really depends on what the treaty is about, whether it disclaims being self-executing, etc.
You missed something. Treaties are law at the same level as federal law, and so the federal Constitution is still supreme over them. And many treaties as a result can't be self-executing (i.e. they are not laws binding on people) since the Constitution has certain procedural and substantive requirements that treaties might not satisfy. In those cases, while the treaty might still impose obligations on the US vis a vis the other parties to the treaty, it still doesn't mean anything domestically. However, Congress will pass a law through the normal process in order to comply with the treaty obligations, and that law is binding in the US. Copyright law is a good example. The Berne Convention obligates the US to make certain laws, but no one has rights under the Berne Convention. Instead Congress passed new copyright laws that met the standards imposed by the treaty.
I know that in performing arts the design (be it play-writing, music composition, etc...) can be covered by separate copyright than the performance (which is seen in the fact that lyrics and musical records are registered separately with the US copyright office).
;)
Well, yes. They're different works, as evidenced by the number of people who perform works that they didn't write, e.g. musicians covering a song. Of course, remember that the performance has to be recorded in order to be a copyrightable writing. A performance that is merely 'in the air' so to speak and unrecorded is uncopyrightable too. There is actually an interesting case going on along these lines in the 2d Cir. I'm interested to see how it turns out.
In any case, the recording for an actor is likely a film or video. While his expressions and gestures and body position and so on might be chosen by him, they're also likely to be at the behest of the director and the written stage directions. Meanwhile the director also has a lot of control over the tableau, such as costuming, set design, cinematography, etc. along with the editing of the final piece. This is why I'd say that he is probably the person responsible for what ends up on the film, and not the actor, who lacks control beyond his own body. Similarly, photographers tend to be copyright holders for their photographs, not their subjects who are depicted. It all comes down to who had and exercised the kind of control we'd expect out of an author.
The fact that a person can be considered an employee with out a written employment agreement is probably a flaw in contract law or employment law (if such a thing exists).
Yes, employment law exists, and is a significant field of the law. It's not a flaw, it's just that courts will look to the essence of the relationship between the parties, rather than the formalities on the surface. If they are really employer and employee, despite their own confusion to the contrary, then that's how that works out.
just the validity and necessity of it in a capitalist society and therefor the need to protect a persons means of economic security
Well, I don't think it's necessary, and I don't think it really provides significant economic security. But I do think it is a valid idea, and a good one. The trick is simply implementing it properly. A good copyright law is likely to be a lot less restrictive than the law we have now. It might benefit authors less, yet be better for the public as a whole. So, I seek reform. But if I thought that no copyright law could possibly yield a better result than any copyright law could, I'd want to see it abolished. I'm merely looking for the outcome with the greatest utility.
I have previously argued that the anti-copyright movement is going to cause there to be even more stringent rules around property
That's funny, because I see the pro-strong-copyright movement as causing a reformist backlash (which I support). I think that there's really fewer people totally against copyright than you might think, and that a lot of them will be mollified with a better, reformed copyright. But even if not, they're still useful in that it makes my group moderate in comparison.
Art has nothing to do with technological progress
Assuming you mean 'art' in the common, modern sense, then sure. But so what? Copyrights are for general knowledge, and patents are for useful technology. The subject matter of copyright isn't meant to involve technological progress. Hell, many things are not copyrightable simply because they have a useful function!
Also n.b. that the Constitution refers to the progress of science and the useful arts. That is actually an archaic usage. In the late 18th century, science meant general knowledge, and the useful arts meant useful technology. There are still some remnants of this, e.g. advanced technology being state of the art, or patents being anticipated by prior art (i.e. earlier examples of the same technology), or patents having to be understandable to people having ordinary skill in the art (i.e. people familiar with the general area of technology at issue).
First of all, I do not care about art
Meh. That's an uncommon opinion, and I'm not really interested in catering to it. Most people like art. Highbrow, lowbrow, music, movies, books, paintings, photos, whatever. Almost everyone likes something.
And when I am talking about software I do not talk about Pac Man.
Why? It's a perfectly good example. Pac Man the game-in-general is uncopyrightable, but could have been patented. Pac Man the specific-implementation-of-the-game is copyrightable. Another specific implementation that functions just the same, i.e. which embodies the game-in-general, but which doesn't copy from another specific implementation is also copyrightable.
I appriciate that you have admited that your issues with copyright are entirely self intrest, unlike many others that think it is somehow for the betterment of society.
I think that you've misunderstood me; probably I haven't explained myself well.
I think that the purpose of copyright is to serve the public interest. The public interest is generally composed of several interests: 1) the interest in having original works created; 2) the interest in having derivative works created; 3) the interest in having works published; and 4) the interest in having no or minimal limits on what people can do with creative works, including owning copies, buying and selling copies, making copies, making derivatives, not having to pay for copies, etc.
That is, the public interest is self-interest; the public is not interested in helping any specific subset of the public, such as artists, but rather wants to help itself as a whole.
In any case, these are my interests as well.
While some people are of course altruistic, and that's fine, such charity has no place in a copyright system. It's inappropriate to give people monopolies over everyone out of the goodness of your heart, and in any case, copyright is ineffective as a system of charity. If you actually want to help artists charitably, just write them a check. Copyrights are about as valuable as lottery tickets; a few are worth a lot, and the vast majority aren't worth the paper they're printed on.
With current technology it cost less than a minimum wage workers week of pay to mass reproduce digital works.
But it's still not economically viable, except perhaps in the case of P2P networking. That's why CD factories use presses, not burners. Which, let me remind you, is a technology that authors and publishers are perfectly free to use just as much as anyone.
No it doesn't, and you would be niave to beleive so.
Well, that would indicate that the system is broken. As it happens, I think that it is right now, because the government is more concerned with the special interest groups in copyright, such as authors and publishers. They need to ignore them, and focus on the public interest. To some degree, what's best for the public will likely be beneficial (if not maximally so) for authors and publishers. But in the end, those groups should have to like it or lump it.
You have a very narrow view of copyright and works for hire.
No, I said that it's rare for contracts to cause a work to be a work made for hire. That can only happen for a few enumerated types of works, and requires the contract to be express, written, and signed by the parties. The employment situation is much more common, but does not hinge on what's in a contract, or whether there even is a contract, so long as there's not any express, written, signed statements disclaiming works being works made for hire.
Every time your sign an employement agreement you are agreeing to a contract that creates a work for hire situation.
That is not actually true. It is possible to be an employee for copyright purposes without formally having an employment relationship, and it is possible to have a formal employment relationship without being an employee for copyright purposes. CCNV v. Reid discusses a lot of the factors the courts will look at in deciding whether someone is an employee for copyright purposes. Certainly explicit contracts are a big help, but they don't always determine how things will end up.
This is what keeps actors from remainging the copyright holders of their performaces.
No, I'd say it's because actors are generally not authors for copyright purposes. For film, usually it's the director, maybe it's joint. I would say that fixation issues play a big part here. There was an instructive case -- Burrow-Giles v. Sarony -- on a similar matter involving whether photographs were copyrightable. Of course, you want to cover your ass anyway, with carefully worded agreements.
I would be willing to find you many quotes and case law to back up my statements if I need to.
And I'm a copyright lawyer, by trade. So far I know what you're referring to, so that's ok.
When you , at your own home, copy a CD, you have only paid for the cost of the media and the machine to make the copy
So? I did not say that pirates can have lower costs altogether. I said that there is no technological advantage for pirates. Remember, you said that in the pre-copyright days, copying was difficult. And I pointed out that it has never been easier for pirates than authors, whatever the level of technology was at any point in time.
Yes, all these others have been paid for by a publisher, but a publisher will not continue to do so if they can not make even the slightest profit on future recordings
Unless, of course, they do. There are other incentives besides money.
But really, you're missing the big picture. Yes, authors and publishers are self-interested. They often desire money, and will do things such as creating or publishing works in order to get money.
However I, like all members of the public, am equally self interested. I want those works, and I don't want to pay a penny more than I have to. Therefore, I will, through the government that represents my interests, only give authors the smallest amount of copyright that provides me with the greatest amount of gain. I am not going to subsidize authors and publishers with artificial monopolies they can wield against me, unless I end up better off with such a system than I would be without it.
You've said that they aren't charities. Well, neither am I. We can come to a mutually satisfactory arrangement (though I'm really uninterested in whether they are maximally satisfied, so long as I am), but don't forget that the system has to please the public too.
The degree of piracy right now is a strong indicator that it does not. That means that the system is broken. Fixing it might well result in fewer works being created. But if the public is nevertheless better off (since both more works and less copyright are desired) then it's for the best.
This is true, there are many differen terms to contractual agreements for works for hire, or other comissioned works.
Meh. It's rare to be able to have a contract that creates a work made for hire situation. It's harder than you think. In my wedding photographer example, those works will never be a work made for hire. The best I can hope for is to buy the copyright from him, and to be stuck with a statutory reversionary right hanging over my head. It's quite unacceptable.
But this brings up my point about different arts being treated differently. Recorded arts and digital arts (music, games and movies) are nearly always a work for hire with transfer of copyright (music is often somewhere in between).
No, it doesn't. There are some works treated differently regarding works made for hire, but they're generally uncommon. The main reason why works are works made for hire is because they are made by employees. The kind of work doesn't matter. Hire a portrait painter as an actual employee (rather than on a commission basis) and you are considered the author. Transfers are a totally different matter, and n.b. that artists working for hire are never the copyright holder, and thus never have anything to transfer. You should probably read up on how this actually works.
Copyrights do impede progress, but the idea is that we can increase progress by more than we diminish it. For example, part of the progress of science is preservation and dissemination. While arguably one could paint a painting that was as good as Guernica, it really would not be a substitute. Our knowledge is not only fostered quite well by making copies of Guernica and distributing them so that everyone has got one, but it also frees up artists from having to make works that try (and fail) to substitute for Guernica, so that they can make something else, if they prefer, also fostering knowledge.
Even with software, a clone of Pac Man can be perfectly entertaining, but it lacks authenticity. It's perfectly good for people to make workalikes, but it's also nice for them to make original things instead, as well.