You can be a copyright lawyer your whole life and never have to deal with the recording industry.
But that doesn't mean you'd be unaware of what's going on there.
Of course, if you do then you (along with the record company, producer, agent, managers, etc.) undoubtedly make more money off the art than the artist but I'm sure you're not in any way biased.:)
Well, I would like to see copyright law reduced back to sanity. If this happened to make copyright a quiet and obscure part of the law again, with a lot of us in the field needing to find other areas to practice in, I wouldn't be upset.
Want to discuss the fairness of class action suits?
They're pretty fair. If I gently poke a million people, then probably the most they were individually injured is so small that the nominal $1 amount of damages would be all they could expect. No individual is likely to sue for a $1 harm they've suffered, but I have inflicted $1 million worth of harm. Having the plaintiffs band together is a good way of dealing with me.
And since each one has basically the same case, and the courts already have a full schedule, it's easier to litigate the issue just once, rather than having to waste time and money proving the exact same thing for each individual plaintiff.
As for how much the lawyers get, remember that there are two basic ways to pay a lawyer: a fee, or a contingent fee. If you were suing someone who had injured you, and the most you, as an individual could expect to recover was $1, would you rather pay the lawyers several hundred dollars an hour, for hundreds or thousands of hours of work, or would you rather pay about a third of the damages, in this case 33 cents? I bet you would rather pay the latter. If the case couldn't be litigated as a class action, no lawyer would agree to a contingent fee. So you'd have to either pay a huge sum in order to get a measly reward, or you'd have to let me go around poking people and getting away with it. The amount you individually lose out on with the contingent fee is far less than you would be otherwise. And so long as the lawyer can get that sort of payment across the board, it adds up, and he's willing to take the case for that sort of payment (which involves him risking his own money, since he doesn't get paid at all if he loses).
And the problems listed by the grandparent are only a very small few of the number of problems with copyrights
Oh, I know that copyright as it is presently implemented is fraught with problems. I've even made a number of suggestions for reform all across the board, and I am working on more detailed proposals in my copious free time.
But I don't have a problem with the idea that authors should be able to assign their copyrights away. In fact, I think that the current copyright system doesn't make copyrights alienable enough. That was all I was talking about. I hadn't realized that a discussion that had been focusing on one rather narrow issue suddenly ballooned into all of copyright.
It's written by someone actually in the industry who knows exactly how the game is played. It should be noted that the story in the link is in no way unusual. This is the norm.
I read that years ago. In fact, I have a hardcopy of it in the Commodify Your Dissent book.
So I am quite aware of the sorts of deals offered to musicians. Nevertheless, I think that if the musicians want to accept that deal, they should be free to do so. I do not think that adults should be kept from agreeing to contracts for no better reason than that they are somewhat one-sided.
Unfortunately, it really does equate to making the choice of either never having a real career in music or agreeing to their rediculous contract terms and taking it totally up the ass.
And?
For a given work, you can risk a certain amount by investing it into the work, and hope for a certain reward.
If an author outsources publication to a publisher, then he assumes less risk. The publisher gets most of the capital invested, has spent time and money in developing experience in the field and contacts with others (e.g. buyers and distributors, engineers, etc.), markets the work, etc. For this, they usually require the lion's share of the potential reward.
If an author doesn't like that, he can self-publish. Now he has to get the capital, figure out what to do, find people he needs to contact, market the work to people so that they'll buy it, etc. Basically he's doing a lot more work, and taking a lot more risk. But he gets to keep all the reward he can get.
I leave it to artists to decide for themselves which they prefer. If publishers are acting in an anticompetitive manner against self-publishing, then that's something that needs to be stopped. But merely providing an alternative, with all of its pros and cons, is okay with me. Artists will do what they think is best for them.
The alternative seems to be either making the market so unappealing that publishers will change businesses, forcing everyone to self-publish (which means that artists are deprived of a choice to outsource publishing to a specialist, so that they can get on with being an artist, instead of having to wear two hats), or forcing publishers to offer better deals, which basically either leads to the same thing as before, or results in publishers being forced to work against their will with artists.
Frankly, I don't see a problem with the current system. It provides the greatest choice and is probably the most efficient.
I suspect that the original authors of the Constitution saw it that way, too.
They did not. Copyrights were alienable under the Statute of Anne, under the state copyright laws prior to 1790, and under the first federal copyright act in 1790 (n.b. that we often look to the acts of the first Congress as instructive with regard to the meaning of the Constitution).
The system we have right now, where copyright is almost always immediately and irrevocably transferred to some corporation, is little more than a system of slavery.
Well, I can see that you haven't read 17 USC 203. And I bet you're unclear as to whether a work is a work for hire or not, and what that means (per 17 USC 201(b) and 101). And of course, any license is terminable provided that you're willing to pay the appropriate compensation; the law favors efficient breach. But mainly, I think you're crazy. There's no comparison to be made with slavery. No one is forcing artists to work under any conditions the artists are unwilling to agree to. If an artist doesn't like the deal he's offered by an employer, he can go elsewhere; he can self-publish; he can take up a totally different job.
But if he makes a deal, even a deal that you feel is a bad deal, why should we not allow him to do it? It's not unconscionable. It's entered into willingly. And normally the only people that can escape contracts so easily are children, and artists shouldn't be treated as though they were children.
I have a lot of problems with our copyright laws, but this sure isn't one of them. Hell, I would expand the availability of work for hire to any pre-creation agreement between the parties, and would get rid of termination (which the author can still try to include as a term in the contract, if the other side will agree to it). I'm just not paternalistic in my treatment of artists, I guess.
Do not assume they can try again and appeal. A higher court may only hear a case if there are any apparent Constitutional violations in the lower court's proceedings.
It's a bit broader than that, but basically yes: the Constitution doesn't allow the federal courts to give advisory opinions; there has to be an actual case of some kind.
The definition of a trademark is that it is some designation (e.g. a word, name, symbol) or combination of designations that is distinctive and is used to identify the source from which marked goods or services originate, and to distinguish that source from others.
For example, APPLE is a designation (a word), which is distinctive (arbitrary -- we'll get to what that means in a moment) used to identify the source from which computers (a kind of good) so marked originate (the Apple company) and which distinguishes those good and their source from others (e.g. Dell, IBM, Sony).
So distinctiveness is one of the necessary elements for trademarkability. There is a continuum of distinctiveness. From most to least they are:
Fanciful (totally made-up marks, such as KODAK)
Arbitrary (marks without a meaning in the context where they're being used as a trademark, such as APPLE for computers)
Suggestive (marks that are suggestive of the marked good or service, such as CHICKEN OF THE SEA for tuna fish; basically they require a little mental work to see the connection, but it's not arbitrary)
Descriptive (marks that describe the good or service, and which, unlike suggestive marks, require no imagination, such as HOLIDAY INN for hotel rooms for people on vacation), and finally;
Generic (marks that simply refer to the general class of goods or services to which the marked ones belong, such as APPLE for the fruit of the same name).
Fanciful, arbitrary, and suggestive marks are always distinctive. Provided that the other requirements for trademarkability are met, they can make good trademarks.
Descriptive marks can either be merely descriptive, or can have acquired distinctiveness (also known as secondary meaning). The former are not distinctive, the latter are. In order to acquire distinctiveness, it has to be shown that the public associates the mark with the source of the marked goods and services, which is generally shown through various kinds of evidence. Even when a descriptive mark is distinctive, the non-distinctive form of the mark is still not protected.
Generic marks are never able to function as trademarks.
Genericide is what happens when the public stops considering a trademark as distinctive of the goods or services of a specific source, and starts to consider it to be a generic term for the goods or services as a class. Their change in perceptions kills the mark. Often this is the result of overwhelming success by the mark holder. By dominating an entire industry, their mark ends up becoming associated with the industry, rather than with the mark holder specifically.
For example, let's suppose that the proper name for a trampoline is actually a 'bouncing apparatus.' Thus, if you buy one from the Trampoline company, it is a Trampoline-brand bouncing apparatus. If you buy one from WidgetCo, it is a WidgetCo-brand bouncing apparatus. But if everyone thinks that the thing you buy is called a trampoline, regardless of what company you buy it from, then Trampoline loses their mark, and WidgetCo can start to advertise WidgetCo-brand trampolines.
It's kind of like how Honda Civics and VW Jettas are both kinds of cars. If the Civic name became generic for any car, regardless of manufacturer, people would talk about how the VW Jetta is a sort of civic. The word would have become a synonym for car. More specifically, it would be a word that describes the good itself (a car) rather than the origin of the good (a car that was made by Honda).
I went to www.thermos.com and there is a registered trademark symbol next to their name.
Well, first, there is a difference in contexts. Thermos is not generic for a manufacturer; it's generic for insulated flasks. (n.b. how they studiously avoid using the word thermos to refer to the good itself -- they use the term 'beverage bottle' a lot; this helps their case) Secondly, it's actually in a wierd case; some generic uses are allowed, and some aren't, and it's been i
If the term is trademarked, wouldn't "superhero" be defined as a type of fictional character created in Marvel and DC comic books?
No. The public can think that the word means whatever it likes. If the public thinks (as evidenced through carefully gathered survey evidence) that superhero is a generic term, and that it's just as easy for roughly similar characters outside the Marvel and DC ambits to be superheroes as those within, then the term is generic and isn't a trademark, at least in the relevant class of goods or services.
This is why Xerox often runs ads discouraging people from using the word xerox in any a generic way (e.g. xeroxing a xerox on the xerox) lest they lose their trademark. They've been doing this for a long time now, and they'll probably be doomed to continue for as long as they can.
Many trademarks do undergo genericide: elevator, escalator, thermos, shredded wheat, trampoline, cellophane, etc.
He also made that speech in a public place. A speaker in a public place should have no expectation of copyright control over anything they say outside.
Well now you're just being silly. Copyright is meant to, among other things, encourage publication of works. Where the work first appears shouldn't be relevant.
CBS television was sued, successfully, for copyright infringement because they played back the (now infamous from this perspective) "I Have a Dream" speech that they recorded with their own cameras and recording equipment.
The speech that King had written down first? There was a nice question as to publication without registration involving that speech (which was ultimately decided wrongly, IMO) but just because they filmed it doesn't mean much.
Not only do they have to prove it, but the burden is the clear and convincing standard, which is higher than the preponderance of the evidence standard. So it's especially hard.
Two problems: First, it is entirely possible for reasonable people to disagree as to the proper interpretation of the constitution. Legislators should not be punished for not accurately reading the minds of some judges as they are years down the road.
Second, courts have been known to be wrong, admitted their mistake, and corrected it in subsequent rulings. No one is perfect, and this includes the legislature. Besides, giving power to the courts over the composition of the legislative bodies threatens the balance of power within government.
Of course, remember that for copyright purposes, copies are defined as tangible objects. While it's easy to buy a copy in the form of a CD (as you noted), it's not possible when it comes to downloading. Instead, when you download music, you have to create one or more new copies (e.g. turning the hard drive into a copy by saving the song onto it). Making new copies is one of the exclusive rights of the copyright holder, so either an exception or a license is required. Often the license will be implied (e.g. if you put up a web page, it's understood that people will have to make some incidental copies in order to view it, so you presumably are implicitly allowing them to do so), but they can be explicit.
Depends on how it's done. So long as it only affects children, and doesn't hinder adults, then fine. So far Congress hasn't been able manage this, and so the laws keep getting overturned.
I agree that copyright isn't much of an issue here (other than that it may interfere with game preservation and dissemination efforts) but bear in mind that copyright as we think of it didn't exist in Shakespeare's day, and that he was the least original guy that ever lived. Shakespeare's Hamlet is his version of an older story, and he was quite fond of copying from earlier plays and stories. Only had one original idea in his life, really.
In fact, re: Hamlet, the way things usually worked was that printers would pay people with good memories (often actors) to go to the new plays, memorize them, and dictate them back so that the printer could run up some copies for sale. There is a hilarious version of Hamlet which came about this way. In it, we get this gem:
To be, or not to be, I, there's the point. To Die, to sleepe, is that all? I, all: No, to sleepe, to dreame, mary there it goes.
As you can see, he's having trouble remembering it, and his comments to himself were faithfully written down and printed.
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You can be a copyright lawyer your whole life and never have to deal with the recording industry.
:)
But that doesn't mean you'd be unaware of what's going on there.
Of course, if you do then you (along with the record company, producer, agent, managers, etc.) undoubtedly make more money off the art than the artist but I'm sure you're not in any way biased.
Well, I would like to see copyright law reduced back to sanity. If this happened to make copyright a quiet and obscure part of the law again, with a lot of us in the field needing to find other areas to practice in, I wouldn't be upset.
Want to discuss the fairness of class action suits?
They're pretty fair. If I gently poke a million people, then probably the most they were individually injured is so small that the nominal $1 amount of damages would be all they could expect. No individual is likely to sue for a $1 harm they've suffered, but I have inflicted $1 million worth of harm. Having the plaintiffs band together is a good way of dealing with me.
And since each one has basically the same case, and the courts already have a full schedule, it's easier to litigate the issue just once, rather than having to waste time and money proving the exact same thing for each individual plaintiff.
As for how much the lawyers get, remember that there are two basic ways to pay a lawyer: a fee, or a contingent fee. If you were suing someone who had injured you, and the most you, as an individual could expect to recover was $1, would you rather pay the lawyers several hundred dollars an hour, for hundreds or thousands of hours of work, or would you rather pay about a third of the damages, in this case 33 cents? I bet you would rather pay the latter. If the case couldn't be litigated as a class action, no lawyer would agree to a contingent fee. So you'd have to either pay a huge sum in order to get a measly reward, or you'd have to let me go around poking people and getting away with it. The amount you individually lose out on with the contingent fee is far less than you would be otherwise. And so long as the lawyer can get that sort of payment across the board, it adds up, and he's willing to take the case for that sort of payment (which involves him risking his own money, since he doesn't get paid at all if he loses).
Is there a big problem with this idea?
And the problems listed by the grandparent are only a very small few of the number of problems with copyrights
Oh, I know that copyright as it is presently implemented is fraught with problems. I've even made a number of suggestions for reform all across the board, and I am working on more detailed proposals in my copious free time.
But I don't have a problem with the idea that authors should be able to assign their copyrights away. In fact, I think that the current copyright system doesn't make copyrights alienable enough. That was all I was talking about. I hadn't realized that a discussion that had been focusing on one rather narrow issue suddenly ballooned into all of copyright.
You simply don't appear to understand the reality of the recording industry today.
Yes, I'm only a copyright lawyer, what do I know?
Read this: http://www.negativland.com/albini.html
It's written by someone actually in the industry who knows exactly how the game is played. It should be noted that the story in the link is in no way unusual. This is the norm.
I read that years ago. In fact, I have a hardcopy of it in the Commodify Your Dissent book.
So I am quite aware of the sorts of deals offered to musicians. Nevertheless, I think that if the musicians want to accept that deal, they should be free to do so. I do not think that adults should be kept from agreeing to contracts for no better reason than that they are somewhat one-sided.
Unfortunately, it really does equate to making the choice of either never having a real career in music or agreeing to their rediculous contract terms and taking it totally up the ass.
And?
For a given work, you can risk a certain amount by investing it into the work, and hope for a certain reward.
If an author outsources publication to a publisher, then he assumes less risk. The publisher gets most of the capital invested, has spent time and money in developing experience in the field and contacts with others (e.g. buyers and distributors, engineers, etc.), markets the work, etc. For this, they usually require the lion's share of the potential reward.
If an author doesn't like that, he can self-publish. Now he has to get the capital, figure out what to do, find people he needs to contact, market the work to people so that they'll buy it, etc. Basically he's doing a lot more work, and taking a lot more risk. But he gets to keep all the reward he can get.
I leave it to artists to decide for themselves which they prefer. If publishers are acting in an anticompetitive manner against self-publishing, then that's something that needs to be stopped. But merely providing an alternative, with all of its pros and cons, is okay with me. Artists will do what they think is best for them.
The alternative seems to be either making the market so unappealing that publishers will change businesses, forcing everyone to self-publish (which means that artists are deprived of a choice to outsource publishing to a specialist, so that they can get on with being an artist, instead of having to wear two hats), or forcing publishers to offer better deals, which basically either leads to the same thing as before, or results in publishers being forced to work against their will with artists.
Frankly, I don't see a problem with the current system. It provides the greatest choice and is probably the most efficient.
Ayn Rand has had a dramatic and positive impact on the world you enjoy today.
;)
That is entirely true. Her death in 1982 was the best thing she ever did, and the world is a better place for it.
(Of course, it's not like it would have killed her to have done it earlier.
I suspect that the original authors of the Constitution saw it that way, too.
They did not. Copyrights were alienable under the Statute of Anne, under the state copyright laws prior to 1790, and under the first federal copyright act in 1790 (n.b. that we often look to the acts of the first Congress as instructive with regard to the meaning of the Constitution).
The system we have right now, where copyright is almost always immediately and irrevocably transferred to some corporation, is little more than a system of slavery.
Well, I can see that you haven't read 17 USC 203. And I bet you're unclear as to whether a work is a work for hire or not, and what that means (per 17 USC 201(b) and 101). And of course, any license is terminable provided that you're willing to pay the appropriate compensation; the law favors efficient breach. But mainly, I think you're crazy. There's no comparison to be made with slavery. No one is forcing artists to work under any conditions the artists are unwilling to agree to. If an artist doesn't like the deal he's offered by an employer, he can go elsewhere; he can self-publish; he can take up a totally different job.
But if he makes a deal, even a deal that you feel is a bad deal, why should we not allow him to do it? It's not unconscionable. It's entered into willingly. And normally the only people that can escape contracts so easily are children, and artists shouldn't be treated as though they were children.
I have a lot of problems with our copyright laws, but this sure isn't one of them. Hell, I would expand the availability of work for hire to any pre-creation agreement between the parties, and would get rid of termination (which the author can still try to include as a term in the contract, if the other side will agree to it). I'm just not paternalistic in my treatment of artists, I guess.
Do not assume they can try again and appeal. A higher court may only hear a case if there are any apparent Constitutional violations in the lower court's proceedings.
That's not correct.
It's a bit broader than that, but basically yes: the Constitution doesn't allow the federal courts to give advisory opinions; there has to be an actual case of some kind.
Well, it deters usage by competitors. Trademarks are not all that powerful against mere members of the public. But yeah, you've got it.
For example, APPLE is a designation (a word), which is distinctive (arbitrary -- we'll get to what that means in a moment) used to identify the source from which computers (a kind of good) so marked originate (the Apple company) and which distinguishes those good and their source from others (e.g. Dell, IBM, Sony).
So distinctiveness is one of the necessary elements for trademarkability. There is a continuum of distinctiveness. From most to least they are:
Fanciful, arbitrary, and suggestive marks are always distinctive. Provided that the other requirements for trademarkability are met, they can make good trademarks.
Descriptive marks can either be merely descriptive, or can have acquired distinctiveness (also known as secondary meaning). The former are not distinctive, the latter are. In order to acquire distinctiveness, it has to be shown that the public associates the mark with the source of the marked goods and services, which is generally shown through various kinds of evidence. Even when a descriptive mark is distinctive, the non-distinctive form of the mark is still not protected.
Generic marks are never able to function as trademarks.
Genericide is what happens when the public stops considering a trademark as distinctive of the goods or services of a specific source, and starts to consider it to be a generic term for the goods or services as a class. Their change in perceptions kills the mark. Often this is the result of overwhelming success by the mark holder. By dominating an entire industry, their mark ends up becoming associated with the industry, rather than with the mark holder specifically.
For example, let's suppose that the proper name for a trampoline is actually a 'bouncing apparatus.' Thus, if you buy one from the Trampoline company, it is a Trampoline-brand bouncing apparatus. If you buy one from WidgetCo, it is a WidgetCo-brand bouncing apparatus. But if everyone thinks that the thing you buy is called a trampoline, regardless of what company you buy it from, then Trampoline loses their mark, and WidgetCo can start to advertise WidgetCo-brand trampolines.
It's kind of like how Honda Civics and VW Jettas are both kinds of cars. If the Civic name became generic for any car, regardless of manufacturer, people would talk about how the VW Jetta is a sort of civic. The word would have become a synonym for car. More specifically, it would be a word that describes the good itself (a car) rather than the origin of the good (a car that was made by Honda).
I went to www.thermos.com and there is a registered trademark symbol next to their name.
Well, first, there is a difference in contexts. Thermos is not generic for a manufacturer; it's generic for insulated flasks. (n.b. how they studiously avoid using the word thermos to refer to the good itself -- they use the term 'beverage bottle' a lot; this helps their case) Secondly, it's actually in a wierd case; some generic uses are allowed, and some aren't, and it's been i
I think this sets the record for how fast Fox can cancel an excellent show.
That's irrelevant for trademark law.
If the term is trademarked, wouldn't "superhero" be defined as a type of fictional character created in Marvel and DC comic books?
No. The public can think that the word means whatever it likes. If the public thinks (as evidenced through carefully gathered survey evidence) that superhero is a generic term, and that it's just as easy for roughly similar characters outside the Marvel and DC ambits to be superheroes as those within, then the term is generic and isn't a trademark, at least in the relevant class of goods or services.
This is why Xerox often runs ads discouraging people from using the word xerox in any a generic way (e.g. xeroxing a xerox on the xerox) lest they lose their trademark. They've been doing this for a long time now, and they'll probably be doomed to continue for as long as they can.
Many trademarks do undergo genericide: elevator, escalator, thermos, shredded wheat, trampoline, cellophane, etc.
He also made that speech in a public place. A speaker in a public place should have no expectation of copyright control over anything they say outside.
Well now you're just being silly. Copyright is meant to, among other things, encourage publication of works. Where the work first appears shouldn't be relevant.
CBS television was sued, successfully, for copyright infringement because they played back the (now infamous from this perspective) "I Have a Dream" speech that they recorded with their own cameras and recording equipment.
The speech that King had written down first? There was a nice question as to publication without registration involving that speech (which was ultimately decided wrongly, IMO) but just because they filmed it doesn't mean much.
Those are design patents, not utility patents. Basically, they're to protect how those things look.
Not only do they have to prove it, but the burden is the clear and convincing standard, which is higher than the preponderance of the evidence standard. So it's especially hard.
Two problems: First, it is entirely possible for reasonable people to disagree as to the proper interpretation of the constitution. Legislators should not be punished for not accurately reading the minds of some judges as they are years down the road.
Second, courts have been known to be wrong, admitted their mistake, and corrected it in subsequent rulings. No one is perfect, and this includes the legislature. Besides, giving power to the courts over the composition of the legislative bodies threatens the balance of power within government.
Of course, remember that for copyright purposes, copies are defined as tangible objects. While it's easy to buy a copy in the form of a CD (as you noted), it's not possible when it comes to downloading. Instead, when you download music, you have to create one or more new copies (e.g. turning the hard drive into a copy by saving the song onto it). Making new copies is one of the exclusive rights of the copyright holder, so either an exception or a license is required. Often the license will be implied (e.g. if you put up a web page, it's understood that people will have to make some incidental copies in order to view it, so you presumably are implicitly allowing them to do so), but they can be explicit.
Yeah, I suspect this doohickey might fall afoul of the AHRA. Looking back over the Diamond case, this seems too limited in purpose to be exempted.
Like GTGFRR:Flint?
Depends on how it's done. So long as it only affects children, and doesn't hinder adults, then fine. So far Congress hasn't been able manage this, and so the laws keep getting overturned.
Yes. Shakespeare eventually owned a share in the acting company (so he got a portion of the box office take), and invested in real estate.
GTSSV. Huge bonus if you guess what that means.
Grand Theft Starship V. The fifth game in the popular series that combines GTA and Jefferson Starship for some reason.
In fact, re: Hamlet, the way things usually worked was that printers would pay people with good memories (often actors) to go to the new plays, memorize them, and dictate them back so that the printer could run up some copies for sale. There is a hilarious version of Hamlet which came about this way. In it, we get this gem:
As you can see, he's having trouble remembering it, and his comments to himself were faithfully written down and printed.