A class action is to allow a lot of plaintiffs with substantially the identical case to be represented by one of them, to avoid a lot of duplicate litigation, against the same defendant.
While you could sue each spammer in that fashion, you cannot sue all spammers all at once, because we do not have classes of defendants. Here we balance a desire for efficiency against a stronger desire for justice.
Your system has been working since mankind exists, because it amounts to jungle law : the powerful can kick the crap out of really creative people, bribe them, starve them, nobody gives a f*cking shit about it ; hence, this is not *law* as a means to create social balance.
Not in the least. Rather, people are free to make good deals or bad deals. But no one is forced to make any deals at all. If an author wants someone to buy his work, he's going to have to find a buyer that he can come to an agreement with. If he can't come to an agreement, he doesn't have to sell his work, however. He might make a bad deal, by selling his work for less than it's really worth (although note that publishers are more important than authors as a rule -- if you write the best book in the world, that alone will not cause it to make money; marketing it well is what causes it to make money, and the publisher usually is the one spending money to do that) but so what?
We don't allow take-backs when people sell their houses or their cars or their stocks for less than they're really worth, so long as the deal was conducted in a fair manner. Why would we treat artists specially? Isn't that highly paternalistic to say that artists are not capable of making good deals, so we have to protect them from themselves? Especially when we don't do that for anyone other than children, or people who are actually being defrauded (rather that just making a bad deal)?
No. No one forces them to take the first deal. In fact, no one forces them to deal at all; artists can always self-publish if they cannot find a publisher that they can come to an agreement with.
This is not the law of the jungle, this is ordinary contract law, of the kind that everyone engages in all the time. It has winners and losers because we're not all so perfect that we can set the mutually optimal prices each and every time.
If copyright was utilitarian, why the hell the end consumer would not be entitled full distribution rights on something he utimately paid for ?
What a bizarre question.
Copyright is utilitarian because it is meant to promote the progress of science, just as it says in the Constitution. Copyright is doing a good job when it accomplishes this goal, and is doing a bad job when it is not. Essentially, accomplishment of this goal is broken into a few parts: encouraging the creation of original works, encouraging the creation of derivative works, encouraging publication, minimal protection during the term, and the shortest term possible.
Ideally we'd have artists making all the works they would make, and having them in the public domain instantly, where everyone is free to enjoy them and use them as the basis for future works.
But realistically, we achieve some of the goals by temporarily trading away the satisfaction of some of the other goals. In the end, all the goals get accomplished.
All of the goals are benefits for the public, mind. It is not the objective of copyright to benefit artists. Rather, that is just the means to the end. Artists are like a donkey pulling the farmer's cart to market. If you don't exploit it by offering it a carrot, it goes so slow that you don't make much at the market. If you offer too many carrots -- as many carrots as it wants -- then it eats them all, and you have nothing to sell at the market, so you've taken a loss. So you offer the minimal amount that gets you to market in time and with enough goods to make the most in sales. The happiness of the donkey is how it is exploited, but it is not something that the farmer cares about for its own sake.
The distribution right, cut into as it is by the first sale doctrine, is essentially about the right to distribute newly-made copies. By having a right to the first sale, but not to later sales, it allows copyright holders to go after not merely those pirates that make copies of their works, but those pirates who then sell or otherwise give away those copies. Selling a used book, OTOH, is perfectly ok, so l
Amaizingly, it has been proven to work pretty well for 150+ years, so that must not be that bad !
And the system used in America has been proven to work pretty well for nearly 300 years, and traditionally hasn't had anything like moral rights. Moral rights are crap. Utilitarian copyright is where it's at.
when we actually did invent the very notion of IP you're frowning at, the one you did emasculate into the copyright laws.
Yeah, and England invented copyrights altogether. As far as I'm concerned, we shouldn't have 104A at all. It was a terrible idea, and one that we only have due to treaties that we never should've agreed to. I hope that someday soon we'll be able to get rid of all international ties vis a vis copyright and get back to doing things right.
Now, think what someone like Orson Wells would have done if he had had means to loosen up a bit the tight grip of Hollywood.
He would have kept making ads about frozen peas. Studios didn't like Welles because he was uncompromising, and his films flopped commercially.
Moral rights do not do a good job of helping artists because you cannot force people to give them help. This is why a utilitarian system is superior -- it helps artists by exploiting their self-interest and appealing to the self-interest of the public. People are predictably greedy, and the system works. Also, moral rights degrade and paternalize artists; they're treated like children who ought to get special treatment because they aren't expected to know better. I say that if an artist makes a bad deal, then that's tough. He didn't have to make a particular agreement, and has learned a lesson. Selling art to someone who wrecks it is no different than selling a nice car to someone who drives it to death.
Well, the seminal case was ProCD, and that was back in the 90's.
No notaries are present and therefore should be void.
Notarization isn't necessary for contracts generally. Just some evidence of agreement.
Until recently they were not until one case came up by a guy in california. Still the judge is not a state judge nor is he a federal. EULA's should be invalidated for this reason.
Aside from that being untrue, got any support for it?
This is easily resolved in court, and anyone who had their contract breached by Sony should go ahead and file an independent lawsuit (not a class action lawsuit).
Why? Class actions are efficient. In this case, everyone would be alleging the same thing against the same defendant. It's far better to have that go to court once, rather than have everyone litigate the same thing, which wastes their time and money and clogs up the courts.
If you have a tortfeasor that harms a lot of people, but where the harm to any one person is slight, you still want to have them cure the harm they caused and to punish them so that they don't do this again in the future. This is not practical if everyone has to sue independently, since many people will not bother (and thus go uncured) and the tortfeasor will not be significantly deterred from doing it again. A class action is an efficient pooling of resources (even if each person harmed is only awarded $1, they only are paying 33 cents for the lawyer -- that's a good deal, really) and can actually deter future tortfeasors.
Wait, it is costly to sue a big company? Might that be due to the laws created in your state? Might that be due to the lawyers in control of the operation of the law?
No. It's costly because, in the interests of justice, you have to do a competent job proving that the company did something wrong. Most people do not know how to do this. Complaining that the system is complicated is as silly as complaining that people can't build moon rockets in their backyards -- some diciplines are inherently complicated. Actual justice is hard.
but a bunch of state lawyers... will be wealthier.
State lawyers are just employees. They get a fixed salary like other state employees. It's sole practicioners and partners at firms that get shares of the damages. So if the state wins, the money probably ends up in the state's general fund.
The problem is that contract law is too complicated, and you can't fight a contract violation in court without a contract lawyer who likely is part of an organization that wrote the law.
All lawyers get trained in contracts, and since most lawyers deal with contracts no matter what else their specialties are, we all can generally deal with them. Also, most contract law is common law, and has been created by the courts in the US and England over the last thousand years or so. Most of the people who wrote contract law are long dead, and were never particularly organized.
Let us return to the days when the law was simple to read
That's never been true, unless you want to go back to an eye for an eye. Law is inherently complex. There is no magical set of laws -- laws being rules for a good, stable, working society -- that is simple and will function. You're looking for a utopia, and those don't exist.
As it happens, it's an amazingly terrible idea. It tends to discourage people from doing business with authors since the author can always break his promises and get away with it. This ends up being bad for authors too, since they get fewer opportunities.
It's kind of like if someone was selling you a plot of land which you wanted to build a house on; would you want the plot where you owned it outright, or where the previous owner could march into your house and start throwing away your furniture because he didn't like it?
it seems to me that there is some requirement of agency... This would seem to be implied in the term "vicarious."
Not in the formal sense, but more or less, yes, that sounds right. What gives rise to liability isn't bad faith or negligence -- it's having responsibility for the direct infringer.
For example, an individual might belong to a church that requires him to tithe, say, 10% of his net income. The church therefore has contact with this individual and has a financial benefit (as a percentage of the income) based on that infringement. Yet I have a hard time seeing such tithing being something that would make, say, the LDS church liable for infringement of its members if this provided additional tithe revenues for it.
Well, the other key element is having the right and ability to prevent the infringement from occuring. Since the law is pretty much limited to the temporal realm and can't determine whether or not the church has a spiritual right and ability, I don't think the church would be held liable. There does have to be more than mere contact. In order to hold A responsible for B, A has to be capable of doing something about B. If it's out of his hands, it's not really fair to blame him.
Your overall point seems to be "Copyright should benefit the public and short copyrights best suit this."
Well, a lot of people would say short terms. However, I think that copyright should be reduced in length and scope. Some works -- boat hulls, chip masks qua chip masks, architecture -- shouldn't be copyrightable at all. More exceptions should be added so that acts which presently are infringing are made legal. I'd also like to see formalities strengthened, work for hire and transfers strengthened, certain practices (e.g. EULAs and DRM) and copyright made mutually exclusive. And yes, I'd like to see terms shortened dramatically, and made more granular by using multiple short terms (so that if an artist loses interest in having a copyright, we don't have to wait long for it to expire).
Short terms are probably the most called-for reform, but I think it's insufficient by itself.
A 10 year copyright (even 5, as you suggest) would keep most copyright-driven sectors of the economy working.
My general feeling has been that 5 year terms would be best, and that for most works, they could be renewed a few times, if the author opted to do so. Some sorts of works -- software is the only example right now -- age so rapidly that 5 years is plenty of time for most of the value of the work to be had, but for the public to still receive a work in the public domain that has some use, rather than being totally archaic.
But this is just an idea. Some actual studies into how long works retain value would be needed so as to come up with hard numbers. I suspect I'm being too generous.
'Significant value' can be interpreted in many ways.
I meant economic value. Copyright is not about fame, or artistic merit. It's about fortune. Artists who create because they want respect or create for art's sake don't need copyrights to provide an incentive; they're already incentivized.
Part of me agrees strongly with automatic copyright on all works. Just not perpetual ones.
Well, I'm prepared to accept a statutory recreation of something like the old common law copyright. Thus, if an author has his manuscript stolen and published, he has a claim. However, protection on unpublished works should be relatively minor and short-lived, lest it be abused. We might borrow a page from patent interferences and enquire as to whether the work was still being developed or had been left to rot. And we might check to see if there had been any indication, aside from the self-serving testimony of the author bringing the suit, of whether the work was intended to be published eventually. And we might put a cap on it anyway, lest works that are hundreds of years old and unpublished, end up being protected unduly. (e.g. if people from the year 2525 find a 20th century MS)
However, the main system should require registration promptly around the time of publication. This serves the important function of seperating out authors who don't care enough about their work to fill out a form, etc., from those who do. The former probably were not incentivized by copyright, or they would treat copyright formalities seriously. The latter probably were, and are willing to jump through minor hoops for this, just as they might in order to get an agent, or a business license. The requirements of registration should be minimal, while still respecting the needs of the public.
Ultimately, I think there is a difference between, say, these/. posts, and a novel. Posts ordinarily shouldn't be copyrighted, whereas a novel is the sort of thing where it's expected. Now, if someone wants to buck either trend, that's fine. But a registration formality for copyright strikes me as a good way to tell them apart and limit protection to where it is needed. If you have a better method, feel free to tell us about it.
There is some kind of implicit or explicit license involved in a consumer buying a typical CD or DVD, because each one comes with a list of "rights" that are "reserved"
No there isn't. The spelling of the one you posted indicates that the publishers might be writing it for areas outside the US, but being familiar with US copyright law, I'll assume that that is not the case.
This programme is under copyright protection
Not relevant.
and may be shown in private homes only
Basically because there's no private performance right in copyright. Copyright, with regards to simply showing a movie, only exists for public showings or showings to people beyond a family and its social acquaintances. So this is basically just restating the law.
Any rental, lease, barter deal or repurchase, copying, reproduction or recording as well as public exhibition or similar commercial acts serving the same economic purpose, or their sufferance, unless permitted by the copyright holder or under applicable law, will result in civil and/or criminal action being taken.'
So, aside from that being a threat, not a license, what it says is that if the applicable law permits it, they won't do anything. Which stands to reason, since they can't. Again, it's just restating the law, it's not a license.
BUT you have to buy the encumbered junk first. If you decide not to give money to the people treating you like that, then it causes you no problems at all.
Not good enough. I'd rather change the law so that it's prohibitively difficult for people to treat me like that. Specifically, I'd like to make copyright and DRM mutually exclusive and to have the law encourage (possibly by having the government do it) breaking DRM systems. Legal protections are fine (to a degree), but technical ones are totally unacceptable. Adhesive licensing to the general public as a substitute for sales is also something I'd bar; publishers can either sell copies outright, or not sell to the public, or negotiate licenses, or offer licenses that aren't substitutes for outright sales.
Actually, at the consumer level there are almost never licenses involved. Software is the one exception, and there's still a lot of debate about whether it really involves licensing or if it's just unenforceable doubletalk.
Additionally, DRM is incapable of making exceptions where the law makes exceptions. This is particularly true where the exception at issue is fair use, since any manner of use is capable of being fair, in the right circumstances. DRM also does not expire when a work enters the public domain, and is essentially a method by which authors are trying to get eternal copyrights, which is forbidden by the Constitution.
The fact that a persons work may flop does not change the fact that they have a right to protection of the work in order to prevent others from making money off their ideas or to claim the work as their own.
Again, however, there is no inherent right to this. Also n.b. that neither patents nor copyrights protect mere ideas.
So, if an author has no right to compensation for his work, then no one else does either? The people writing the scripts for multi-million dollar plays and movies deserve none of the money to be made off their work?
I'm saying that they don't have a right to compensation. They might be lucky enough for the public to give them a right to compensation, but it's not automatic or magically deserved just by being an author. If an author wants a reward from the public, there had better be something in it for the public, something which more than compensates them for what they're giving away. Copyright isn't a charity, it's a quid pro quo.
You then argue that the system is artificial and made for the public's benefit. This is not really true since the exclusive rights afforded are primarily for the benefit of content creators, not the public.
It's true, alright. The exclusive rights system is just the means to a larger end. It's not an end in itself.
The laws actual prevent items from going into the public domain for decades limiting the ability of copyright material to freely spread, because in a place where people cannot afford books, movies, tv, etc. there is no ready means available to gain access to the copyrighted material.
And in the right circumstances, that could still fit with the greater public good. However, I will grant that modern copyright law has been deeply corrupted. Just because it's presently the law is no defense for the law, and does not change the ideals we should strive to live up to.
Some people do their profession because they enjoy it.
I know. And if they're willing to work for free, I'm willing to let them. Copyrights should be reserved, to the extent that we can manage it, only for those authors that would not work for free. Personally, I favor formalities as a way of filtering them out, but I grant that there's no perfect way to do it without being a mind reader.
The fact is copyright guarantees the artist and writers a chance to make money off their work and prevents people from freely disseminating the information by photocopying it and selling it to everyone at minimal prices or giving it away outright.
Yes. It's an artificial monopoly on a commodity good. A free market would be greatly beneficial to the public because copies of works would be published extremely cheaply, since each publisher is competing against the others. There's a reason why artificial monopolies are generally looked down upon. In the copyright world they're granted with the idea that there will be other benefits as well (rather like giving a cable company a monopoly for a few years so that someone will put in cables, then allowing competitors to use those cables to lower prices and provide more choices in service).
Again, though, no one is out to make sure that the authors (or cable companies) are the primary beneficiaries of the system.
Actually this is false.
Not when you deign to notice the word 'can.'
You seem stuck on this idea that copyright was created to protect the public from getting eternally screwed by copyright holders.
That's an unusual idea, since there would be no copyright holders if copyright hadn't been created yet.
Anyway, the fact of the matter is that copyright is intended to benefit the public. It accomplishes this through a system that provides some degree of benefit for authors but authorial benefit is not the goal, it's just how we exploit authors' predictable behavior.
One of my favored analogies is the farmer and the donkey. The farmer wants to go to market, so he dangles a carrot in front of the d
You turned the word 'content creator' into 'author'. That entirely changes the meaning of my original statement.
I don't think so. 'Author' is the generic term used in the Constitution for the creator of a copyrightable work.
The 'authors' at my work (programmers) do not even control the copyright on their work. The 'content creator' is not the author, it is the entity that delivers the final product.
Well, there are two ways to see that sort of result. First, and most likely here, the programmers are not the authors of the work; the company is. You're their employee, you've assumed a duty to the company, the job you're told to do is to write code at the direction of the company, etc. You're basically in the same position as someone who takes dictation or a cameraman who films what his director tells him to film.
The other way is that you are the authors, but that you have obligated yourselves to transfer your rights to the company as part of the deal under which you're employed by them. This makes the company not the author per se, but the copyright holder. Since there's no reason why authors shouldn't be able to give away their copyrights if they want to (much as they could give away other things if they wanted to) we basically end up treating copyright holders who succeed the author the way we would have treated the author himself.
I believe the burden of proof is on you for that. I cannot see our economy functioning without copyright, but that just might be that I can't see too far beyond my next pay stub.
Well, I never said I thought copyright should be abolished. I just said that the metric by which we determine how successful the copyright system is not the number of authors in the field or even the number of works being created.
We could do okay without copyright at all, but what we really want is the system of laws (or no law) that results in the greatest public benefit. Since we've got a number of factors (original works created, derivative works created, works published, minimal protection during copyright, rapid entry into public domain) we have to look at the net public good, rather than focusing too much on any specific factor. Often increasing the satisfaction of one of these sorts of goods will reduce satisfaction of another (e.g. if we encourage creation and publication with a copyright, we reduce our satisfaction of the minimal protection and rapid entry goals, and tend to reduce the creation and publication of derivatives as well).
We have a baseline we can start with, however, in that we know from history that in a world without copyright we will see some degree of satisfaction of the creation and publication interests (leaning more toward the derivative side) with maximum satisfaction of the minimal protection (since there is none) and rapid entry (since it's instant). Of all the possible sorts of copyright laws we can create, we need to limit ourselves to only those that produce a net public benefit greater than we see with no copyright law at all. Furthermore, we want to try to achieve the greatest net public benefit possible, regardless of whether it fully satisfies the desires of authors; it's okay for them to benefit incidentally, but not okay for them to benefit at the expense of the public.
We also know from experience that most works have no economic value at all, that only a small fraction have any value, and that only a small fraction of those have any significant value. Authors, it turns out, are very risk-seeking. While it's true that there are very great potential rewards, it's also true that those rewards are about as likely to be had as winning the lottery.
We also know that in practice, those works with any value will be most valuable immediately. For example, a movie sells most of its tickets on its opening weekend, is most watched on PPV when it first becomes available there, rents most of its DVDs when it first hits the rental store, and sells most of its DVDs when it first becomes available
I disagree with your view of the first admendment. My right to speak (or write) does not grant you the right to listen (or read). To do so would infringe upon my implied (1, 4, 5 and 14 admendments) right to privacy. You wouldn't claim a right to read a person's private diary would you?
There is actually a right to listen in the First Amendment, or else the right to speak would be easily circumvented by government. But I'm not limiting myself to just the First Amendment.
In any event, the free speech doesn't grant a right of access to private property. If I obtain a copy of your diary, I do have a right to read it. It's up to you to keep your diary private. Since I don't have a right to make you hand it over, it shouldn't be difficult for you. When you publish it and it's in every bookstore, however, you have no hope of keeping people from reading it.
Incidentally, one's constitutional rights are generally only assertable against the state, not private actors. You have no constitutional right of privacy from intrusions by me. Instead, you'd need to fall back on privacy-related torts.
Aren't damages higher in the US at least if you can prove that it was wilfully done, or are treble damages only reserved for willful patent infringement?
Statutory damages for infringement range from $750 to $30,000 per work infringed. If the plaintiff proves willful infringement, the ceiling goes up to $150,000 per work. OTOH if the defendant proves that he did not know and had no reason to know that he infringed, the floor goes down to $200. (N.b. that this is very difficult ordinarily) There are no damage multipliers for copyright. And the other form of monetary remedy, actual damages and profits, doesn't change as a result of mens rea.
I am not sure I understand this one at all.
It's basically a respondeat superior theory. So if a company had an employee that was infringing, and the company could have supervised the employee and made him stop, and the company profited as a result of the infringement, the company is liable, even if it didn't know about the infringement. It's been extended beyond the business setting, but I hope you get the general idea.
Under this theory, wouldn't Sony have been liable under the Betamax case? After all they had received a financial benefit from the actual infringement in the form of additional sales of their hardware.
But they did not have the right and ability to control the use of Betamaxes.
Generally, you use contributory infringement when there was contact between the defendant and direct infringer prior to the infringement, or where there is no financial benefit. You use vicarious infringement when there was contact between the defendant and direct infringer throughout the time of the infringement, and where there is financial benefit. Of course, many cases will present the opportunity to use both.
Also under the Napster case, one can still make a bad faith argument-- i.e. that Napster not only could have prevented the infringement, but also that their marketing and public relations were specifically tailored to let people know with a bit more than a wink and a nod that infringing works could be found on their site. In essence, not only were they in control over the indexes passing through their servers, but they had also built their buisiness around attracting infringers. In essence the reason why Napster didn't do the filtering the industry required was that they knew that to do so would materially hurt their business and so they acted in bad faith here.
That's not really an extant theory of liability, however. You could make the argument, but it seems superfluous for the Napster hypo (they easily lost on contributory and vicarious infringement) and is a bit of a waste. You can really only argue so much in one case, you know.
In any case, that basically is what we see with the new inducement theory.
I.e. in both Sony and Grokster, the court ruled pretty clearly that vicarious infringement did not extend to selling products (and presumably services) which had substantive legal uses provided that the product was sold *for* those legal purposes.
No, they were talking about contributory infringement. Sony (despite some confusing language) never actually got around to discussing vicarious infringement. I'd have to look through the history of the case, but I suspect it's because the plaintiff never bothered to claim vicarious infringement.
In essence, I am having a hard time imagining a case that would go to jury trial where one could expect to be found liable in the absense of either bad faith or negligence, except where an agent of the person (natural or otherwise) infringed for the benefit of the person sued.
Well, remember that you can't be negligent unless there's a duty of care. Anyway, would landlords qualify? If a landlord provides a facility for infringers to infringe, has the right (in the lease) to supervise them and kick them out if the infringe, doesn't do so, and is paid not in a flat fee, but a percentage of the profits of the tenant, he could be found liable. This isn't an entirely contrived example; landlords have been known to be liable for the infringements of their tenants, in the right circumstances.
There are three forms of civil indirect infringement: Contributory Infringement, Vicarious Infringement, and the new Inducement Infringement theory from the Grokster case. (Some would consider inducement to be a form of contributory infringement, but I'm considering it to be a third form until there's more case law on it)
First, let's bear in mind that direct infringement of copyrights is a strict liability statute civilly. Mens rea is not relevant. An infringer who intends to infringe is no different than one who does so entirely accidentially. There may be a difference in terms of the appropriate remedies (although n.b. that it is very difficult for an 'innocent infringer' to avoid paying damages of less than $750 per work infringed and impossible for the ordinary 'innocent infringer' to pay less than $200 per work infringed).
Mental state may be relevant to indirect infringement, however.
In all indirect infringement cases, there must first be a direct infringer. It's not necessary to actually sue him, but he has to exist, as one cannot have assisted in an infringement without there being an infringement.
Contributory infringement is when the defendant materially encouraged or assisted the direct infringer in the infringement, having actual or constructive knowledge of the infringement at the time. While the knowledge has to be more than that there is a potential of infringement, it is not so great as to know of specific instances of infringement. E.g. Napster would not be liable merely because they know their software could be used in an infringing manner, but if they know that many people are using it in that manner, then that could be sufficient. Providing facilities for infringement (e.g. a computer network, or a physical area) can give rise to liability, unless the defendant has relinquished all control over it to the direct infringer.
Vicarious infringement is when the defendant had the right and ability to control the actions of the direct infringer and receives a financial benefit from the infringement. The mental state of the defendant is not relevant under a vicarious theory; they can know nothing and have not been negligent, and still be liable. However, if the defendant has supervised the direct infringer to the fullest possible extent, and still been unable to prevent infringement, this can provide an escape from liability. Unfortunately it's pretty much impractical if not impossible. Financial benefits are pretty broadly defined. They can include unrealized benefits (e.g. Napster wanted to attract future advertising revenue by attracting users by allowing them to infringe on their network when it could have prevented them from doing so).
Inducement is pretty new, so everyone's still getting used to it. Expect to see a flurry of cases and responses to it. Inducement is when a defendant engages in purposeful activity with the intent of doing so so as to promote copyright infringement, as shown by a clear statement to that effect or other affirmative steps taken to foster infringement. As with contributory infringement, mere knowledge of potential or actual infringement isn't enough to give rise to liability. And activity that only incidentally induces isn't sufficient (e.g. fixing bugs v. advertising the infringing capabilities of the software)
So in the US, merely hosting a search engine would probably provide some protection to you.
Possibly, although I wouldn't advise a client that had a search engine to just hope for that. The 17 USC 512 safe harbor is useful for many online service providers, such as search engines, although it does take a few affirmative steps to use it.
A content creator deserves to be compensated for their creation.
This is untrue. First, most authors are not compensated; their works are flops and have no economic value, as far as copyright goes. But secondly, authors have never inherently deserved compensation. Copyright is an artifical system intended to benefit the public. Authors might benefit as well, but it is not the objective of copyright to reward them any more than the objective of building a highway is to pay money to road crews.
In fact, even if copyright were intended to reward authors, it would be the worst imaginable way of achieving this. Most authors, as already pointed out, don't derive any benefit from copyright. Among the few who do, most of them don't derive enough for it to be worth it; they would have made more money doing something else. Only an astonishingly small number of authors make a good living as authors. If your intent was to help them, a more efficient system would be necessary. Direct subsidies would probably do well. That we do not do that, and never have done that, is a good indicator that compensation is not a goal of copyright.
that decision cannot be made for them
As it happens, it can. We can require authors to deposit copies of their works as a prerequisite for copyright. And we can cause their copyright to expire at a date that is most beneficial to the public, regardless of whether the author likes it or not.
In fact, we could even abolish copyright altogether, if we really wanted.
If you never wanted to/could afford to buy the content anyway, you have no inherit right to it in the first place.
Quite false. There is an inherent right to free speech, and this encompasses repeating what another has said. Copyright is a temporary imposition on this, but that's all. Someone who could never have afforded to buy a copy of Tom Sawyer has an inherent right to it. We gave Twain a limited, temporary right to bar that, but we took it away again as well.
The only thing there is no inherent right to is to cause authors to create and publish works in the first place. No one can make an author write a book, but if they do, they have to play by our rules if they want a copyright. They cannot assert an inherent right to control others' use of the work, especially for no better reason than that they happen to be the author.
However, I work for a software company. Copyright pays the bills. This business, and thousands like it (including publishers, tv / movie studios, etc) wouldn't bother opening up every morning if copyright law wasn't there to protect the fruits of our labor.
And I'm a copyright lawyer. And while many authors would choose to do something else if they were not so favorably treated by copyright law, there's nothing bad about that.
The goals of the public, and of copyright law, are not just to cause original works to be created, but to cause derivative works to be created, to cause publication to occur, and to cause works to be in the public domain as fast as possible, and as close to being in the public domain during the term as possible.
If a change to law that better accomplished those goals happened to result in a number of authors leaving the field, we would nevertheless be better off without them. Heck, some authors would never leave, even if they had no copyright at all.
FYI in the US, there is secondary liability for civil copyright infringement. In a criminal copyright infringement case, it might be possible for the government to prosecute an indirect infringer under an aiding and abetting theory, but I'm not aware of any examples.
No, your post implied that we were only talking about inventions from 1980, as though Bayh-Dole was a one time thing. Furthermore, you're likely wrong, even while backtracking. They can't license patents that have expired, and there are likely other sorts of rights, e.g. copyrights and trade secrets, which are involved in this as well.
The only reason Bayh-Dole was even mentioned in the article was because it was a large part of how we got to the current situation where schools concentrate heavily on commercializing their research, rather than just trying to discover and spread knowledge.
What the hell are you talking about? Bayh-Dole became law in 1980. It's still the law today, and it is at the heart of patentability of inventions made by federally funded schools.
Man, I love Radiation Robot. I've been collecting issues since #136. The 'Half-Life / Half-Death' storyline was just epic. Admittedly, I didn't hear about this crossover with the army, but it sounds like it ought to be interesting. I'll have the comic book store pull it for me asap.
Now, both copyright and patent laws have been tinkered with a time or three since 1976, and I would suggest that this was done more in reaction to what was happening in the courts rather than proactively.
Not especially.
The current Patent Act is from 1952. The current Copyright Act is from 1976. In the period since 1976, statutory changes in both really have not had a great deal to do with what the courts have been doing. For example, many of the changes in the Copyright Act have been to ensure compliance with the treaty obligations of the United States (although those treaties were generally set up to benefit existing copyright holders who found that treaties were a convenient back door to getting what they wanted legislatively -- long terms are required by Berne, anticircumvention by TRIPS, etc.)
Now, there are a couple of amendments to the Acts due to Congress disagreeing with the courts. But I can't think of any significant ones in the post-1976 period you chose for some reason.
You can decide for yourself whether the courts' actions were appropriate, but you will have a hard time proving that the courts were not heavily involved in expanding the scope of copyrights.
Sort of. Remember, the courts do not create copyright law. They have to interpret the law that Congress gives them, and often there are many different possible interpretations for a given statute. The courts are trying to do what they think Congress wanted. They often disagree, but are bound to work with the law in front of them, not to make up whatever they want. If they're doing it wrong, presumably Congress will step in and amend the law so as to clarify their intention. They do this all the time. If they don't, it may indicate that the courts are getting it right (as far as Congress sees it) after all.
congress was, in fact, writing what the courts had already decided into law, in order to ensure uniformity
That sometimes happens too. Statutes are not the sole source of law in this country; the Constitution is also relevant. The courts have discovered doctrines such as first sale and fair use before, although always based on statutes or the Constitution. Congress has endorsed those doctrines by writing them into the statute. (And n.b. that they were pretty uniform to begin with)
I think you're blaming the courts too much, and Congress far, far too little. It is the latter body that is far more to blame for the current predicament.
The guy who sweats over getting a small mechanical device to work better/faster/cheaper that is easily copied should enjoy some protection from the fruits of his labor.
Sweat of the brow has never been a valid reason for either copyright or patent protection. Protection is available, or not, whether you worked hard to invent something, or whether you did it trivially.
It's not a patent case, but the only case I know of where someone actually sued themselves was Lodi v. Lodi. Predictably, it was dismissed. And the plaintiff / defendant / beneficiary wasn't a licensed attorney.
Slashdot Mirror
This is why spammers can never be eradicated.
Well, that's not the same thing, precisely.
A class action is to allow a lot of plaintiffs with substantially the identical case to be represented by one of them, to avoid a lot of duplicate litigation, against the same defendant.
While you could sue each spammer in that fashion, you cannot sue all spammers all at once, because we do not have classes of defendants. Here we balance a desire for efficiency against a stronger desire for justice.
Your system has been working since mankind exists, because it amounts to jungle law : the powerful can kick the crap out of really creative people, bribe them, starve them, nobody gives a f*cking shit about it ; hence, this is not *law* as a means to create social balance.
Not in the least. Rather, people are free to make good deals or bad deals. But no one is forced to make any deals at all. If an author wants someone to buy his work, he's going to have to find a buyer that he can come to an agreement with. If he can't come to an agreement, he doesn't have to sell his work, however. He might make a bad deal, by selling his work for less than it's really worth (although note that publishers are more important than authors as a rule -- if you write the best book in the world, that alone will not cause it to make money; marketing it well is what causes it to make money, and the publisher usually is the one spending money to do that) but so what?
We don't allow take-backs when people sell their houses or their cars or their stocks for less than they're really worth, so long as the deal was conducted in a fair manner. Why would we treat artists specially? Isn't that highly paternalistic to say that artists are not capable of making good deals, so we have to protect them from themselves? Especially when we don't do that for anyone other than children, or people who are actually being defrauded (rather that just making a bad deal)?
No. No one forces them to take the first deal. In fact, no one forces them to deal at all; artists can always self-publish if they cannot find a publisher that they can come to an agreement with.
This is not the law of the jungle, this is ordinary contract law, of the kind that everyone engages in all the time. It has winners and losers because we're not all so perfect that we can set the mutually optimal prices each and every time.
If copyright was utilitarian, why the hell the end consumer would not be entitled full distribution rights on something he utimately paid for ?
What a bizarre question.
Copyright is utilitarian because it is meant to promote the progress of science, just as it says in the Constitution. Copyright is doing a good job when it accomplishes this goal, and is doing a bad job when it is not. Essentially, accomplishment of this goal is broken into a few parts: encouraging the creation of original works, encouraging the creation of derivative works, encouraging publication, minimal protection during the term, and the shortest term possible.
Ideally we'd have artists making all the works they would make, and having them in the public domain instantly, where everyone is free to enjoy them and use them as the basis for future works.
But realistically, we achieve some of the goals by temporarily trading away the satisfaction of some of the other goals. In the end, all the goals get accomplished.
All of the goals are benefits for the public, mind. It is not the objective of copyright to benefit artists. Rather, that is just the means to the end. Artists are like a donkey pulling the farmer's cart to market. If you don't exploit it by offering it a carrot, it goes so slow that you don't make much at the market. If you offer too many carrots -- as many carrots as it wants -- then it eats them all, and you have nothing to sell at the market, so you've taken a loss. So you offer the minimal amount that gets you to market in time and with enough goods to make the most in sales. The happiness of the donkey is how it is exploited, but it is not something that the farmer cares about for its own sake.
The distribution right, cut into as it is by the first sale doctrine, is essentially about the right to distribute newly-made copies. By having a right to the first sale, but not to later sales, it allows copyright holders to go after not merely those pirates that make copies of their works, but those pirates who then sell or otherwise give away those copies. Selling a used book, OTOH, is perfectly ok, so l
Amaizingly, it has been proven to work pretty well for 150+ years, so that must not be that bad !
And the system used in America has been proven to work pretty well for nearly 300 years, and traditionally hasn't had anything like moral rights. Moral rights are crap. Utilitarian copyright is where it's at.
when we actually did invent the very notion of IP you're frowning at, the one you did emasculate into the copyright laws.
Yeah, and England invented copyrights altogether. As far as I'm concerned, we shouldn't have 104A at all. It was a terrible idea, and one that we only have due to treaties that we never should've agreed to. I hope that someday soon we'll be able to get rid of all international ties vis a vis copyright and get back to doing things right.
Now, think what someone like Orson Wells would have done if he had had means to loosen up a bit the tight grip of Hollywood.
He would have kept making ads about frozen peas. Studios didn't like Welles because he was uncompromising, and his films flopped commercially.
Moral rights do not do a good job of helping artists because you cannot force people to give them help. This is why a utilitarian system is superior -- it helps artists by exploiting their self-interest and appealing to the self-interest of the public. People are predictably greedy, and the system works. Also, moral rights degrade and paternalize artists; they're treated like children who ought to get special treatment because they aren't expected to know better. I say that if an artist makes a bad deal, then that's tough. He didn't have to make a particular agreement, and has learned a lesson. Selling art to someone who wrecks it is no different than selling a nice car to someone who drives it to death.
Since when are EULA's enforcable?
Well, the seminal case was ProCD, and that was back in the 90's.
No notaries are present and therefore should be void.
Notarization isn't necessary for contracts generally. Just some evidence of agreement.
Until recently they were not until one case came up by a guy in california. Still the judge is not a state judge nor is he a federal. EULA's should be invalidated for this reason.
Aside from that being untrue, got any support for it?
This is easily resolved in court, and anyone who had their contract breached by Sony should go ahead and file an independent lawsuit (not a class action lawsuit).
... will be wealthier.
Why? Class actions are efficient. In this case, everyone would be alleging the same thing against the same defendant. It's far better to have that go to court once, rather than have everyone litigate the same thing, which wastes their time and money and clogs up the courts.
If you have a tortfeasor that harms a lot of people, but where the harm to any one person is slight, you still want to have them cure the harm they caused and to punish them so that they don't do this again in the future. This is not practical if everyone has to sue independently, since many people will not bother (and thus go uncured) and the tortfeasor will not be significantly deterred from doing it again. A class action is an efficient pooling of resources (even if each person harmed is only awarded $1, they only are paying 33 cents for the lawyer -- that's a good deal, really) and can actually deter future tortfeasors.
Wait, it is costly to sue a big company? Might that be due to the laws created in your state? Might that be due to the lawyers in control of the operation of the law?
No. It's costly because, in the interests of justice, you have to do a competent job proving that the company did something wrong. Most people do not know how to do this. Complaining that the system is complicated is as silly as complaining that people can't build moon rockets in their backyards -- some diciplines are inherently complicated. Actual justice is hard.
but a bunch of state lawyers
State lawyers are just employees. They get a fixed salary like other state employees. It's sole practicioners and partners at firms that get shares of the damages. So if the state wins, the money probably ends up in the state's general fund.
The problem is that contract law is too complicated, and you can't fight a contract violation in court without a contract lawyer who likely is part of an organization that wrote the law.
All lawyers get trained in contracts, and since most lawyers deal with contracts no matter what else their specialties are, we all can generally deal with them. Also, most contract law is common law, and has been created by the courts in the US and England over the last thousand years or so. Most of the people who wrote contract law are long dead, and were never particularly organized.
Let us return to the days when the law was simple to read
That's never been true, unless you want to go back to an eye for an eye. Law is inherently complex. There is no magical set of laws -- laws being rules for a good, stable, working society -- that is simple and will function. You're looking for a utopia, and those don't exist.
As it happens, it's an amazingly terrible idea. It tends to discourage people from doing business with authors since the author can always break his promises and get away with it. This ends up being bad for authors too, since they get fewer opportunities.
It's kind of like if someone was selling you a plot of land which you wanted to build a house on; would you want the plot where you owned it outright, or where the previous owner could march into your house and start throwing away your furniture because he didn't like it?
it seems to me that there is some requirement of agency ... This would seem to be implied in the term "vicarious."
Not in the formal sense, but more or less, yes, that sounds right. What gives rise to liability isn't bad faith or negligence -- it's having responsibility for the direct infringer.
For example, an individual might belong to a church that requires him to tithe, say, 10% of his net income. The church therefore has contact with this individual and has a financial benefit (as a percentage of the income) based on that infringement. Yet I have a hard time seeing such tithing being something that would make, say, the LDS church liable for infringement of its members if this provided additional tithe revenues for it.
Well, the other key element is having the right and ability to prevent the infringement from occuring. Since the law is pretty much limited to the temporal realm and can't determine whether or not the church has a spiritual right and ability, I don't think the church would be held liable. There does have to be more than mere contact. In order to hold A responsible for B, A has to be capable of doing something about B. If it's out of his hands, it's not really fair to blame him.
Your overall point seems to be "Copyright should benefit the public and short copyrights best suit this."
/. posts, and a novel. Posts ordinarily shouldn't be copyrighted, whereas a novel is the sort of thing where it's expected. Now, if someone wants to buck either trend, that's fine. But a registration formality for copyright strikes me as a good way to tell them apart and limit protection to where it is needed. If you have a better method, feel free to tell us about it.
Well, a lot of people would say short terms. However, I think that copyright should be reduced in length and scope. Some works -- boat hulls, chip masks qua chip masks, architecture -- shouldn't be copyrightable at all. More exceptions should be added so that acts which presently are infringing are made legal. I'd also like to see formalities strengthened, work for hire and transfers strengthened, certain practices (e.g. EULAs and DRM) and copyright made mutually exclusive. And yes, I'd like to see terms shortened dramatically, and made more granular by using multiple short terms (so that if an artist loses interest in having a copyright, we don't have to wait long for it to expire).
Short terms are probably the most called-for reform, but I think it's insufficient by itself.
A 10 year copyright (even 5, as you suggest) would keep most copyright-driven sectors of the economy working.
My general feeling has been that 5 year terms would be best, and that for most works, they could be renewed a few times, if the author opted to do so. Some sorts of works -- software is the only example right now -- age so rapidly that 5 years is plenty of time for most of the value of the work to be had, but for the public to still receive a work in the public domain that has some use, rather than being totally archaic.
But this is just an idea. Some actual studies into how long works retain value would be needed so as to come up with hard numbers. I suspect I'm being too generous.
'Significant value' can be interpreted in many ways.
I meant economic value. Copyright is not about fame, or artistic merit. It's about fortune. Artists who create because they want respect or create for art's sake don't need copyrights to provide an incentive; they're already incentivized.
Part of me agrees strongly with automatic copyright on all works. Just not perpetual ones.
Well, I'm prepared to accept a statutory recreation of something like the old common law copyright. Thus, if an author has his manuscript stolen and published, he has a claim. However, protection on unpublished works should be relatively minor and short-lived, lest it be abused. We might borrow a page from patent interferences and enquire as to whether the work was still being developed or had been left to rot. And we might check to see if there had been any indication, aside from the self-serving testimony of the author bringing the suit, of whether the work was intended to be published eventually. And we might put a cap on it anyway, lest works that are hundreds of years old and unpublished, end up being protected unduly. (e.g. if people from the year 2525 find a 20th century MS)
However, the main system should require registration promptly around the time of publication. This serves the important function of seperating out authors who don't care enough about their work to fill out a form, etc., from those who do. The former probably were not incentivized by copyright, or they would treat copyright formalities seriously. The latter probably were, and are willing to jump through minor hoops for this, just as they might in order to get an agent, or a business license. The requirements of registration should be minimal, while still respecting the needs of the public.
Ultimately, I think there is a difference between, say, these
There is some kind of implicit or explicit license involved in a consumer buying a typical CD or DVD, because each one comes with a list of "rights" that are "reserved"
No there isn't. The spelling of the one you posted indicates that the publishers might be writing it for areas outside the US, but being familiar with US copyright law, I'll assume that that is not the case.
This programme is under copyright protection
Not relevant.
and may be shown in private homes only
Basically because there's no private performance right in copyright. Copyright, with regards to simply showing a movie, only exists for public showings or showings to people beyond a family and its social acquaintances. So this is basically just restating the law.
Any rental, lease, barter deal or repurchase,
copying, reproduction or recording as well as
public exhibition or similar commercial acts
serving the same economic purpose, or their
sufferance, unless permitted by the copyright
holder or under applicable law, will result in
civil and/or criminal action being taken.'
So, aside from that being a threat, not a license, what it says is that if the applicable law permits it, they won't do anything. Which stands to reason, since they can't. Again, it's just restating the law, it's not a license.
BUT you have to buy the encumbered junk first. If you decide not to give money to the people treating you like that, then it causes you no problems at all.
Not good enough. I'd rather change the law so that it's prohibitively difficult for people to treat me like that. Specifically, I'd like to make copyright and DRM mutually exclusive and to have the law encourage (possibly by having the government do it) breaking DRM systems. Legal protections are fine (to a degree), but technical ones are totally unacceptable. Adhesive licensing to the general public as a substitute for sales is also something I'd bar; publishers can either sell copies outright, or not sell to the public, or negotiate licenses, or offer licenses that aren't substitutes for outright sales.
Actually, at the consumer level there are almost never licenses involved. Software is the one exception, and there's still a lot of debate about whether it really involves licensing or if it's just unenforceable doubletalk.
Additionally, DRM is incapable of making exceptions where the law makes exceptions. This is particularly true where the exception at issue is fair use, since any manner of use is capable of being fair, in the right circumstances. DRM also does not expire when a work enters the public domain, and is essentially a method by which authors are trying to get eternal copyrights, which is forbidden by the Constitution.
The fact that a persons work may flop does not change the fact that they have a right to protection of the work in order to prevent others from making money off their ideas or to claim the work as their own.
Again, however, there is no inherent right to this. Also n.b. that neither patents nor copyrights protect mere ideas.
So, if an author has no right to compensation for his work, then no one else does either? The people writing the scripts for multi-million dollar plays and movies deserve none of the money to be made off their work?
I'm saying that they don't have a right to compensation. They might be lucky enough for the public to give them a right to compensation, but it's not automatic or magically deserved just by being an author. If an author wants a reward from the public, there had better be something in it for the public, something which more than compensates them for what they're giving away. Copyright isn't a charity, it's a quid pro quo.
You then argue that the system is artificial and made for the public's benefit. This is not really true since the exclusive rights afforded are primarily for the benefit of content creators, not the public.
It's true, alright. The exclusive rights system is just the means to a larger end. It's not an end in itself.
The laws actual prevent items from going into the public domain for decades limiting the ability of copyright material to freely spread, because in a place where people cannot afford books, movies, tv, etc. there is no ready means available to gain access to the copyrighted material.
And in the right circumstances, that could still fit with the greater public good. However, I will grant that modern copyright law has been deeply corrupted. Just because it's presently the law is no defense for the law, and does not change the ideals we should strive to live up to.
Some people do their profession because they enjoy it.
I know. And if they're willing to work for free, I'm willing to let them. Copyrights should be reserved, to the extent that we can manage it, only for those authors that would not work for free. Personally, I favor formalities as a way of filtering them out, but I grant that there's no perfect way to do it without being a mind reader.
The fact is copyright guarantees the artist and writers a chance to make money off their work and prevents people from freely disseminating the information by photocopying it and selling it to everyone at minimal prices or giving it away outright.
Yes. It's an artificial monopoly on a commodity good. A free market would be greatly beneficial to the public because copies of works would be published extremely cheaply, since each publisher is competing against the others. There's a reason why artificial monopolies are generally looked down upon. In the copyright world they're granted with the idea that there will be other benefits as well (rather like giving a cable company a monopoly for a few years so that someone will put in cables, then allowing competitors to use those cables to lower prices and provide more choices in service).
Again, though, no one is out to make sure that the authors (or cable companies) are the primary beneficiaries of the system.
Actually this is false.
Not when you deign to notice the word 'can.'
You seem stuck on this idea that copyright was created to protect the public from getting eternally screwed by copyright holders.
That's an unusual idea, since there would be no copyright holders if copyright hadn't been created yet.
Anyway, the fact of the matter is that copyright is intended to benefit the public. It accomplishes this through a system that provides some degree of benefit for authors but authorial benefit is not the goal, it's just how we exploit authors' predictable behavior.
One of my favored analogies is the farmer and the donkey. The farmer wants to go to market, so he dangles a carrot in front of the d
You turned the word 'content creator' into 'author'. That entirely changes the meaning of my original statement.
I don't think so. 'Author' is the generic term used in the Constitution for the creator of a copyrightable work.
The 'authors' at my work (programmers) do not even control the copyright on their work. The 'content creator' is not the author, it is the entity that delivers the final product.
Well, there are two ways to see that sort of result. First, and most likely here, the programmers are not the authors of the work; the company is. You're their employee, you've assumed a duty to the company, the job you're told to do is to write code at the direction of the company, etc. You're basically in the same position as someone who takes dictation or a cameraman who films what his director tells him to film.
The other way is that you are the authors, but that you have obligated yourselves to transfer your rights to the company as part of the deal under which you're employed by them. This makes the company not the author per se, but the copyright holder. Since there's no reason why authors shouldn't be able to give away their copyrights if they want to (much as they could give away other things if they wanted to) we basically end up treating copyright holders who succeed the author the way we would have treated the author himself.
I believe the burden of proof is on you for that. I cannot see our economy functioning without copyright, but that just might be that I can't see too far beyond my next pay stub.
Well, I never said I thought copyright should be abolished. I just said that the metric by which we determine how successful the copyright system is not the number of authors in the field or even the number of works being created.
We could do okay without copyright at all, but what we really want is the system of laws (or no law) that results in the greatest public benefit. Since we've got a number of factors (original works created, derivative works created, works published, minimal protection during copyright, rapid entry into public domain) we have to look at the net public good, rather than focusing too much on any specific factor. Often increasing the satisfaction of one of these sorts of goods will reduce satisfaction of another (e.g. if we encourage creation and publication with a copyright, we reduce our satisfaction of the minimal protection and rapid entry goals, and tend to reduce the creation and publication of derivatives as well).
We have a baseline we can start with, however, in that we know from history that in a world without copyright we will see some degree of satisfaction of the creation and publication interests (leaning more toward the derivative side) with maximum satisfaction of the minimal protection (since there is none) and rapid entry (since it's instant). Of all the possible sorts of copyright laws we can create, we need to limit ourselves to only those that produce a net public benefit greater than we see with no copyright law at all. Furthermore, we want to try to achieve the greatest net public benefit possible, regardless of whether it fully satisfies the desires of authors; it's okay for them to benefit incidentally, but not okay for them to benefit at the expense of the public.
We also know from experience that most works have no economic value at all, that only a small fraction have any value, and that only a small fraction of those have any significant value. Authors, it turns out, are very risk-seeking. While it's true that there are very great potential rewards, it's also true that those rewards are about as likely to be had as winning the lottery.
We also know that in practice, those works with any value will be most valuable immediately. For example, a movie sells most of its tickets on its opening weekend, is most watched on PPV when it first becomes available there, rents most of its DVDs when it first hits the rental store, and sells most of its DVDs when it first becomes available
I disagree with your view of the first admendment. My right to speak (or write) does not grant you the right to listen (or read). To do so would infringe upon my implied (1, 4, 5 and 14 admendments) right to privacy. You wouldn't claim a right to read a person's private diary would you?
There is actually a right to listen in the First Amendment, or else the right to speak would be easily circumvented by government. But I'm not limiting myself to just the First Amendment.
In any event, the free speech doesn't grant a right of access to private property. If I obtain a copy of your diary, I do have a right to read it. It's up to you to keep your diary private. Since I don't have a right to make you hand it over, it shouldn't be difficult for you. When you publish it and it's in every bookstore, however, you have no hope of keeping people from reading it.
Incidentally, one's constitutional rights are generally only assertable against the state, not private actors. You have no constitutional right of privacy from intrusions by me. Instead, you'd need to fall back on privacy-related torts.
Aren't damages higher in the US at least if you can prove that it was wilfully done, or are treble damages only reserved for willful patent infringement?
Statutory damages for infringement range from $750 to $30,000 per work infringed. If the plaintiff proves willful infringement, the ceiling goes up to $150,000 per work. OTOH if the defendant proves that he did not know and had no reason to know that he infringed, the floor goes down to $200. (N.b. that this is very difficult ordinarily) There are no damage multipliers for copyright. And the other form of monetary remedy, actual damages and profits, doesn't change as a result of mens rea.
I am not sure I understand this one at all.
It's basically a respondeat superior theory. So if a company had an employee that was infringing, and the company could have supervised the employee and made him stop, and the company profited as a result of the infringement, the company is liable, even if it didn't know about the infringement. It's been extended beyond the business setting, but I hope you get the general idea.
Under this theory, wouldn't Sony have been liable under the Betamax case? After all they had received a financial benefit from the actual infringement in the form of additional sales of their hardware.
But they did not have the right and ability to control the use of Betamaxes.
Generally, you use contributory infringement when there was contact between the defendant and direct infringer prior to the infringement, or where there is no financial benefit. You use vicarious infringement when there was contact between the defendant and direct infringer throughout the time of the infringement, and where there is financial benefit. Of course, many cases will present the opportunity to use both.
Also under the Napster case, one can still make a bad faith argument-- i.e. that Napster not only could have prevented the infringement, but also that their marketing and public relations were specifically tailored to let people know with a bit more than a wink and a nod that infringing works could be found on their site. In essence, not only were they in control over the indexes passing through their servers, but they had also built their buisiness around attracting infringers. In essence the reason why Napster didn't do the filtering the industry required was that they knew that to do so would materially hurt their business and so they acted in bad faith here.
That's not really an extant theory of liability, however. You could make the argument, but it seems superfluous for the Napster hypo (they easily lost on contributory and vicarious infringement) and is a bit of a waste. You can really only argue so much in one case, you know.
In any case, that basically is what we see with the new inducement theory.
I.e. in both Sony and Grokster, the court ruled pretty clearly that vicarious infringement did not extend to selling products (and presumably services) which had substantive legal uses provided that the product was sold *for* those legal purposes.
No, they were talking about contributory infringement. Sony (despite some confusing language) never actually got around to discussing vicarious infringement. I'd have to look through the history of the case, but I suspect it's because the plaintiff never bothered to claim vicarious infringement.
In essence, I am having a hard time imagining a case that would go to jury trial where one could expect to be found liable in the absense of either bad faith or negligence, except where an agent of the person (natural or otherwise) infringed for the benefit of the person sued.
Well, remember that you can't be negligent unless there's a duty of care. Anyway, would landlords qualify? If a landlord provides a facility for infringers to infringe, has the right (in the lease) to supervise them and kick them out if the infringe, doesn't do so, and is paid not in a flat fee, but a percentage of the profits of the tenant, he could be found liable. This isn't an entirely contrived example; landlords have been known to be liable for the infringements of their tenants, in the right circumstances.
There are three forms of civil indirect infringement: Contributory Infringement, Vicarious Infringement, and the new Inducement Infringement theory from the Grokster case. (Some would consider inducement to be a form of contributory infringement, but I'm considering it to be a third form until there's more case law on it)
First, let's bear in mind that direct infringement of copyrights is a strict liability statute civilly. Mens rea is not relevant. An infringer who intends to infringe is no different than one who does so entirely accidentially. There may be a difference in terms of the appropriate remedies (although n.b. that it is very difficult for an 'innocent infringer' to avoid paying damages of less than $750 per work infringed and impossible for the ordinary 'innocent infringer' to pay less than $200 per work infringed).
Mental state may be relevant to indirect infringement, however.
In all indirect infringement cases, there must first be a direct infringer. It's not necessary to actually sue him, but he has to exist, as one cannot have assisted in an infringement without there being an infringement.
Contributory infringement is when the defendant materially encouraged or assisted the direct infringer in the infringement, having actual or constructive knowledge of the infringement at the time. While the knowledge has to be more than that there is a potential of infringement, it is not so great as to know of specific instances of infringement. E.g. Napster would not be liable merely because they know their software could be used in an infringing manner, but if they know that many people are using it in that manner, then that could be sufficient. Providing facilities for infringement (e.g. a computer network, or a physical area) can give rise to liability, unless the defendant has relinquished all control over it to the direct infringer.
Vicarious infringement is when the defendant had the right and ability to control the actions of the direct infringer and receives a financial benefit from the infringement. The mental state of the defendant is not relevant under a vicarious theory; they can know nothing and have not been negligent, and still be liable. However, if the defendant has supervised the direct infringer to the fullest possible extent, and still been unable to prevent infringement, this can provide an escape from liability. Unfortunately it's pretty much impractical if not impossible. Financial benefits are pretty broadly defined. They can include unrealized benefits (e.g. Napster wanted to attract future advertising revenue by attracting users by allowing them to infringe on their network when it could have prevented them from doing so).
Inducement is pretty new, so everyone's still getting used to it. Expect to see a flurry of cases and responses to it. Inducement is when a defendant engages in purposeful activity with the intent of doing so so as to promote copyright infringement, as shown by a clear statement to that effect or other affirmative steps taken to foster infringement. As with contributory infringement, mere knowledge of potential or actual infringement isn't enough to give rise to liability. And activity that only incidentally induces isn't sufficient (e.g. fixing bugs v. advertising the infringing capabilities of the software)
So in the US, merely hosting a search engine would probably provide some protection to you.
Possibly, although I wouldn't advise a client that had a search engine to just hope for that. The 17 USC 512 safe harbor is useful for many online service providers, such as search engines, although it does take a few affirmative steps to use it.
A content creator deserves to be compensated for their creation.
This is untrue. First, most authors are not compensated; their works are flops and have no economic value, as far as copyright goes. But secondly, authors have never inherently deserved compensation. Copyright is an artifical system intended to benefit the public. Authors might benefit as well, but it is not the objective of copyright to reward them any more than the objective of building a highway is to pay money to road crews.
In fact, even if copyright were intended to reward authors, it would be the worst imaginable way of achieving this. Most authors, as already pointed out, don't derive any benefit from copyright. Among the few who do, most of them don't derive enough for it to be worth it; they would have made more money doing something else. Only an astonishingly small number of authors make a good living as authors. If your intent was to help them, a more efficient system would be necessary. Direct subsidies would probably do well. That we do not do that, and never have done that, is a good indicator that compensation is not a goal of copyright.
that decision cannot be made for them
As it happens, it can. We can require authors to deposit copies of their works as a prerequisite for copyright. And we can cause their copyright to expire at a date that is most beneficial to the public, regardless of whether the author likes it or not.
In fact, we could even abolish copyright altogether, if we really wanted.
If you never wanted to/could afford to buy the content anyway, you have no inherit right to it in the first place.
Quite false. There is an inherent right to free speech, and this encompasses repeating what another has said. Copyright is a temporary imposition on this, but that's all. Someone who could never have afforded to buy a copy of Tom Sawyer has an inherent right to it. We gave Twain a limited, temporary right to bar that, but we took it away again as well.
The only thing there is no inherent right to is to cause authors to create and publish works in the first place. No one can make an author write a book, but if they do, they have to play by our rules if they want a copyright. They cannot assert an inherent right to control others' use of the work, especially for no better reason than that they happen to be the author.
However, I work for a software company. Copyright pays the bills. This business, and thousands like it (including publishers, tv / movie studios, etc) wouldn't bother opening up every morning if copyright law wasn't there to protect the fruits of our labor.
And I'm a copyright lawyer. And while many authors would choose to do something else if they were not so favorably treated by copyright law, there's nothing bad about that.
The goals of the public, and of copyright law, are not just to cause original works to be created, but to cause derivative works to be created, to cause publication to occur, and to cause works to be in the public domain as fast as possible, and as close to being in the public domain during the term as possible.
If a change to law that better accomplished those goals happened to result in a number of authors leaving the field, we would nevertheless be better off without them. Heck, some authors would never leave, even if they had no copyright at all.
FYI in the US, there is secondary liability for civil copyright infringement. In a criminal copyright infringement case, it might be possible for the government to prosecute an indirect infringer under an aiding and abetting theory, but I'm not aware of any examples.
No, your post implied that we were only talking about inventions from 1980, as though Bayh-Dole was a one time thing. Furthermore, you're likely wrong, even while backtracking. They can't license patents that have expired, and there are likely other sorts of rights, e.g. copyrights and trade secrets, which are involved in this as well.
The only reason Bayh-Dole was even mentioned in the article was because it was a large part of how we got to the current situation where schools concentrate heavily on commercializing their research, rather than just trying to discover and spread knowledge.
What the hell are you talking about? Bayh-Dole became law in 1980. It's still the law today, and it is at the heart of patentability of inventions made by federally funded schools.
Man, I love Radiation Robot. I've been collecting issues since #136. The 'Half-Life / Half-Death' storyline was just epic. Admittedly, I didn't hear about this crossover with the army, but it sounds like it ought to be interesting. I'll have the comic book store pull it for me asap.
Congratulations.
At least, so long as you stay away from the East Coast. We're full up on IP lawyers here.
Now, both copyright and patent laws have been tinkered with a time or three since 1976, and I would suggest that this was done more in reaction to what was happening in the courts rather than proactively.
Not especially.
The current Patent Act is from 1952. The current Copyright Act is from 1976. In the period since 1976, statutory changes in both really have not had a great deal to do with what the courts have been doing. For example, many of the changes in the Copyright Act have been to ensure compliance with the treaty obligations of the United States (although those treaties were generally set up to benefit existing copyright holders who found that treaties were a convenient back door to getting what they wanted legislatively -- long terms are required by Berne, anticircumvention by TRIPS, etc.)
Now, there are a couple of amendments to the Acts due to Congress disagreeing with the courts. But I can't think of any significant ones in the post-1976 period you chose for some reason.
You can decide for yourself whether the courts' actions were appropriate, but you will have a hard time proving that the courts were not heavily involved in expanding the scope of copyrights.
Sort of. Remember, the courts do not create copyright law. They have to interpret the law that Congress gives them, and often there are many different possible interpretations for a given statute. The courts are trying to do what they think Congress wanted. They often disagree, but are bound to work with the law in front of them, not to make up whatever they want. If they're doing it wrong, presumably Congress will step in and amend the law so as to clarify their intention. They do this all the time. If they don't, it may indicate that the courts are getting it right (as far as Congress sees it) after all.
congress was, in fact, writing what the courts had already decided into law, in order to ensure uniformity
That sometimes happens too. Statutes are not the sole source of law in this country; the Constitution is also relevant. The courts have discovered doctrines such as first sale and fair use before, although always based on statutes or the Constitution. Congress has endorsed those doctrines by writing them into the statute. (And n.b. that they were pretty uniform to begin with)
I think you're blaming the courts too much, and Congress far, far too little. It is the latter body that is far more to blame for the current predicament.
I'll take your word for it, as patents aren't my field.
The guy who sweats over getting a small mechanical device to work better/faster/cheaper that is easily copied should enjoy some protection from the fruits of his labor.
Sweat of the brow has never been a valid reason for either copyright or patent protection. Protection is available, or not, whether you worked hard to invent something, or whether you did it trivially.
It's not a patent case, but the only case I know of where someone actually sued themselves was Lodi v. Lodi. Predictably, it was dismissed. And the plaintiff / defendant / beneficiary wasn't a licensed attorney.