And if it cost me a million dollars to get that information in the first place? It might cost me very little to disseminate it, but if I'm going to go on to do the work to find more information, I'm going to have to have a way to earn that million dollars back.
Well, you're going to take a chance, anyway. History is full of examples of flops that didn't earn back their costs.
it needs to be taken back to its original term (20 years I believe)
14 years, with the option in the last year to renew for another 14.
I want the cheapasses who don't want to pay a dime to pay too, so those creators can go on making things I will want to buy. None of this stuff is stuff you need to survive. You won't die if you don't get Brittney Spears latest album.
And Brittney Spears won't die if she needs to get a desk job. Copyright should provide the greatest benefit possible for the public; this may result in fewer artists been incentivized by it, but it's still for the best overall.
Don't get too attached to only the benefit of having lots of works getting created. Seeing those works unencumbered by copyright is of equal importance.
If they want too much, just don't buy it, or wait till it goes on sale, shows up in the second hand shops, or at a flea market or yard sale. You don't have to illegally fileswap.
File sharing doesn't have to be illegal either.
Come up with DRM that preserves all of my fair use rights and I'll support it.
I wouldn't. First, what you ask for is impossible -- fair use has a vague, changing standard that even courts have difficulty with, and can potentially cover any kind of use, in the right circumstances. No machine is able to allow or disallow things exactly the way the Supreme Court would just then, for that specific use. Second, DRM doesn't go away with copyright, and doesn't reflect changes to copyright wrought by Congress or the courts.
Personally, I prefer making DRM and copyright mutually exclusive, and then discouraging the use of DRM by having it legal to break and having the government encourage breaking it. Legal protections are sufficient.
Well, the purpose of copyright is to maximally satisfy the public interest. And the public interest is composed of three equal parts: the creation of original works, the creation of derivative works, and having those works be unencumbered (i.e. free as in freedom and beer). Additionally, where the net interest is at a particular level for multiple configurations of the law, you should pick the least encumbering of them.
The idea is that a small, temporary reduction in the latter two would yield a far greater increase in the first. Summing the satisfaction of all these interests together, you'd get a greater satisfaction than you would've without copyright. Of course, eventually it hits a maximum and begins to decline, so you don't want to go too far either.
For example. You come over my house and I pull out a new DVD of Spider Man 2 that I just bought. Should I not put the DVD in and play it until you run out to the store and buy your own copy? No. Fair Use allows you to watch it with me.
No it doesn't.
All uses of a work are permitted unless specifically prohibited. Copyright covers public performance of motion pictures, not all performance, per 17 USC 106. If you're watching the film with friends and family, it's not public, given the definitions in 17 USC 101.
Thus, there is no possibility of copyright infringement in that scenario, and so no need for a fair use defense.
The golden rule should be that you cannot profit off of a copyright with out the copyrights holders permission.
So I would not be able to make a parody of a work and sell copies without permission, despite the fact that copyright holders rarely permit parodies? I think you should rethink your proposal.
Of course, personally, I think that copyright should generally respect people's norms. Thus P2P sharing should probably be made legal since people do it anyway, it's not particularly dangerous, etc. OTOH, most people agree that commercial piracy is not good, so we might continue to have some prohibitions there.
Freedom of speech necessarily encompasses the freedom to repeat what others have said.
For the original author of a work to publish his work, he relies on his freedom of speech. For anyone else to republish it, they must rely on their freedom of speech.
Copyright may be an acceptable limit on this freedom, provided that it serves the public interest, but as with all limits on speech, we should be very critical of it and only tolerate it to the degree that it helps the public.
Though, in theory, Napster could have legit uses, in practise it didn't.
So? The Sony opinion only required that technology be capable of substantial noninfringing uses. It didn't require them to actually be.
As it happens, Napster was successful in arguing that it should be protected by the Sony precedent. The problem was that that didn't give them blanket protection -- it only meant that the capability of the network for infringement couldn't be used against them to impute knowledge of infringement.
The RIAA was easily able to demonstrate that they had knowledge for other reasons, and so they still won.
When Napster was sued they actually had content in their possession.
Yeah, but that was not really an important part of the case.
Even if they were able to prove that you could get content from the network, you aren't technically scearching for the content you get. You're scearching for torrents, which are small files with no real copy righted data in them.
So?
The main issue is whether running the search engine materially contributes in some way to someone else's copyright infringement, and if so, whether the people running the engine knew or should've known at the time.
I can't say I've heard of any cases that hinged on how indirect the contribution was, so long as it was material and done knowingly at the time.
1) It's not granted by the Constitution, it's granted by act of Congress. The Constitution merely empowers Congress to do so. (And to some extent, states can and have and do grant copyrights as well)
2) Copyright covers more than distribution. See, e.g. 17 USC 106.
As I understand the case, the judge said that a technology would be legal if it was demonstratably useful and intended for legal purposes. Napster failed that test, because there simply wasn't an existing base of legal music files at the time. Kazza succeeded because it was able to show that its design allowed for any type of file regardless of legality.
This isn't correct.
The Sony case, from the Supreme Court, said that if a technology is capable of substantial noninfringing uses, the knowledge prong of contributory infringement isn't satisfied merely by making the technology.
Note that this doesn't require there to be current substantial noninfringing uses (though that is helpful) but that there need only be the potential of them.
The Napster court, followed Sony and did not ascribe knowledge to it based on the capabilities of the software. However, it did find that for other reasons, they did have sufficient knowledge (and contribution) for contributory liability to stand, and that they vicariously infringed.
What later P2P networks have been doing is ensuring that they are not in a position to have knowledge whilst contributing to infringement, and that they cannot vicariously infringe. They've been doing this basically by decentralizing, so that they are akin to Sony, which makes VCRs, but is unable to control what people do with them. Napster had the ability to kick people off, filter out files on the network, etc. which was their downfall.
The Grokster case may reverse Sony in some fashion -- we'll know in the next couple of months.
At any rate, search engines are too controllable by their maintainers to rely on Sony as a defense. Thus, the 512 safeharbor is key. But it takes some work to comply with it, so hopefully they have done so.
their 100 meg zip drive came out at a time where hard drives were barely that size
Meh. When Zips came out, about 10 years ago, I had a 750MB drive, and that wasn't unusually large. Where Zips excelled was in price. SyQuests and Bernoullis cost a lot more.
Well, what you're thinking of is likely section 105. It only applies to the federal government, however, and doesn't permit the government to allow other entities to claim a copyright on the government work.
Related to that are various agency rules that apply for works which aren't government works, but which do involve government funding. And also the due process guarantees of the 14th amendment and various state laws could preclude copyrights on various forms of state laws, rules, caselaw, etc.
There's also 102(b) of course, for material that's simply outside of the scope of copyright. 102(a) has to be satisfied in order to obtain a copyright. And 103(a), for unlawfully used material in making derivatives. 103 also prevents derivative works with too little additional original matter from being copyrightable. The utility doctrine prevents the functional parts of pictoral, graphic, and sculptural works from being copyrightable, which might include the entire thing if they're inseperable. The merger doctrine prevents copyright from applying where there are only a small number of expressions of an idea available.
There are likely a couple of other very minor instances in which a work is uncopyrightable, but those are the main ones. And yes, they are fairly uncommon.
How do you explain the phrase "He stole my idea.", if your arguement is correct.
How do you explain why so many foods with artificial raspberry flavoring are blue?
It's a common phrase, but that doesn't make it correct any more than the once-common belief in a flat earth was correct. The fact that a concept is popular has little to do with its accuracy. (Plus, ideas can't be copyrighted)
It's not theft. It is OTOH, illegal. It's rather like how if you burn down someone's house, that's arson, not theft. Or if you intrude on their land, that's trespass, not theft.
If I make available a movie for people to download, I am competing directly with the movie maker.
So? Competition is generally regarded as a very good thing. It results in a more efficient marketplace. Additionally, if I make a different movie, targeted at the same group of customers, I'm in direct competition as well.
Copyrights are a monopoly. They should not be tolerated unless there is a clear advantage to the public in having them, and then only to the degree that they yield the greatest public advantage.
Because aside from direct infringement, there are also doctrines of contributory and vicarious infringement. Under these doctrines, in the right circumstances, assisting someone to infringe results in liability for not just the actual infringer, but also those who helped.
That's how Napster was taken down -- they helped their users infringe. There are ways to avoid danger (see e.g. 17 USC 512) but you need to be careful in order to take advantage of them.
Well, if it's going to be in the US, I would hope that they've been extremely careful to comply with all the relevant provisions of 17 USC 512.
Usenet folks can get away with downloading since downloading copyrighted material is not technically illegal
Yes it is. See 17 USC 501 and 106(1) for the statutory law, and cases such as Napster for the caselaw.
I guess if Mr. Cohen doesn't host the files himself but merely links to where the files may be found, he could wiggle through that legal loophole.
No, that would still be contributory infringement. Hence the need for the 512 safe harbor. Remember, Napster didn't host files either, but just helped downloaders find uploaders.
Wonderfull business plan, just sue the whole population and then let them all sort it out among themselves!!!! I mean the guilty is supposedly among them for sure!
Oh, it really only works within a comparatively small group where it's unreasonable for the plaintiff to have to find the exact wrongdoer, but it's clear that someone was the wrongdoer.
The classic example of a joint and several liability scenario is where you go to the hospital for surgery, are anesthetized into unconsciousness, and when you wake up, someone's left some surgical instruments in your guts. Obviously you have no idea who did it, but it must've been one of the people in the operating room. They are better situated to figure it out than you are, even if you're diligent, and you should not be prevented from getting damages altogether just because you were unconscious at the time.
Just because you share a household does not mean you are automatically all jointly responsible for the others action, can be sued in group or treated as one and the same for legal/illegal purposes.
True, but in the scenario you describe, where people share a household and a computer, joint and several liability is quite reasonable. If there were information reasonably available to the plaintiff as to which of them did it, he wouldn't need to resort to it, would he?
Which brings us to the wonderful world of joint and several liability. If the plaintiff can't figure out which of you it was, it sues all of you, and you all have to pay damages (i.e. shares of the overall sum, which doesn't increase, but anyone who comes up short has to be covered by the others). Then you can all sort it out amongst yourselves, with the truly liable party having to repay the shares of the damages the others had to pay.
The US is a very plaintiff friendly place, you know.
Well, typically with downloading, the recipient is the person who is the factual and proximate cause. If you don't click on the link, or start up the download in the P2P app, or whatever, nothing happens.
Perhaps people who are the victims of hacking aren't to blame if their machine is used to download things without their involvement, but this is at best pretty rare. Most machines that download do so because their users want them to.
Anyhow, yeah, the recipient makes a copy, which is enough to trigger the statute.
With the caveat that only distribution falls under criminal law.
No. You need to read 17 USC 506. Under the right circumstances, any kind of infringement will suffice (what constitutes infringement is set forth by 501).
Your logic is equivalent to claiming that browsing the web is a constant copying of copyrighted content.
It is. The courts have even said so.
Remember, a copy is defined in the law as a material object. It is impossible to download a copy just as it is impossible to download a glass of water. Rather, the computer at the receiving end IS the copy -- its memory is the tangible object in which the intangible work is fixed.
You need to read the Intellectual Reserve case.
Also, n.b. that deleting an earlier generation copy is irrelevant. So long as a work was fixed in a new medium, thereby producing a new copy, that's the infringement. The disposition of the previous copy has no weight.
what's protected? Is it the bits which represent information, or the information itself?
The latter, including when it is represented by various bits.
Slashdot Mirror
And if it cost me a million dollars to get that information in the first place? It might cost me very little to disseminate it, but if I'm going to go on to do the work to find more information, I'm going to have to have a way to earn that million dollars back.
Well, you're going to take a chance, anyway. History is full of examples of flops that didn't earn back their costs.
it needs to be taken back to its original term (20 years I believe)
14 years, with the option in the last year to renew for another 14.
I want the cheapasses who don't want to pay a dime to pay too, so those creators can go on making things I will want to buy. None of this stuff is stuff you need to survive. You won't die if you don't get Brittney Spears latest album.
And Brittney Spears won't die if she needs to get a desk job. Copyright should provide the greatest benefit possible for the public; this may result in fewer artists been incentivized by it, but it's still for the best overall.
Don't get too attached to only the benefit of having lots of works getting created. Seeing those works unencumbered by copyright is of equal importance.
If they want too much, just don't buy it, or wait till it goes on sale, shows up in the second hand shops, or at a flea market or yard sale. You don't have to illegally fileswap.
File sharing doesn't have to be illegal either.
Come up with DRM that preserves all of my fair use rights and I'll support it.
I wouldn't. First, what you ask for is impossible -- fair use has a vague, changing standard that even courts have difficulty with, and can potentially cover any kind of use, in the right circumstances. No machine is able to allow or disallow things exactly the way the Supreme Court would just then, for that specific use. Second, DRM doesn't go away with copyright, and doesn't reflect changes to copyright wrought by Congress or the courts.
Personally, I prefer making DRM and copyright mutually exclusive, and then discouraging the use of DRM by having it legal to break and having the government encourage breaking it. Legal protections are sufficient.
Well, the purpose of copyright is to maximally satisfy the public interest. And the public interest is composed of three equal parts: the creation of original works, the creation of derivative works, and having those works be unencumbered (i.e. free as in freedom and beer). Additionally, where the net interest is at a particular level for multiple configurations of the law, you should pick the least encumbering of them.
The idea is that a small, temporary reduction in the latter two would yield a far greater increase in the first. Summing the satisfaction of all these interests together, you'd get a greater satisfaction than you would've without copyright. Of course, eventually it hits a maximum and begins to decline, so you don't want to go too far either.
For example. You come over my house and I pull out a new DVD of Spider Man 2 that I just bought. Should I not put the DVD in and play it until you run out to the store and buy your own copy? No. Fair Use allows you to watch it with me.
No it doesn't.
All uses of a work are permitted unless specifically prohibited. Copyright covers public performance of motion pictures, not all performance, per 17 USC 106. If you're watching the film with friends and family, it's not public, given the definitions in 17 USC 101.
Thus, there is no possibility of copyright infringement in that scenario, and so no need for a fair use defense.
The golden rule should be that you cannot profit off of a copyright with out the copyrights holders permission.
So I would not be able to make a parody of a work and sell copies without permission, despite the fact that copyright holders rarely permit parodies? I think you should rethink your proposal.
Of course, personally, I think that copyright should generally respect people's norms. Thus P2P sharing should probably be made legal since people do it anyway, it's not particularly dangerous, etc. OTOH, most people agree that commercial piracy is not good, so we might continue to have some prohibitions there.
Freedom of speech necessarily encompasses the freedom to repeat what others have said.
For the original author of a work to publish his work, he relies on his freedom of speech. For anyone else to republish it, they must rely on their freedom of speech.
Copyright may be an acceptable limit on this freedom, provided that it serves the public interest, but as with all limits on speech, we should be very critical of it and only tolerate it to the degree that it helps the public.
Though, in theory, Napster could have legit uses, in practise it didn't.
So? The Sony opinion only required that technology be capable of substantial noninfringing uses. It didn't require them to actually be.
As it happens, Napster was successful in arguing that it should be protected by the Sony precedent. The problem was that that didn't give them blanket protection -- it only meant that the capability of the network for infringement couldn't be used against them to impute knowledge of infringement.
The RIAA was easily able to demonstrate that they had knowledge for other reasons, and so they still won.
Up or down, they're both illegal.
When Napster was sued they actually had content in their possession.
Yeah, but that was not really an important part of the case.
Even if they were able to prove that you could get content from the network, you aren't technically scearching for the content you get. You're scearching for torrents, which are small files with no real copy righted data in them.
So?
The main issue is whether running the search engine materially contributes in some way to someone else's copyright infringement, and if so, whether the people running the engine knew or should've known at the time.
I can't say I've heard of any cases that hinged on how indirect the contribution was, so long as it was material and done knowingly at the time.
I assure you, there is no chance whatsoever that the people running those sites could win in court.
1) It's not granted by the Constitution, it's granted by act of Congress. The Constitution merely empowers Congress to do so. (And to some extent, states can and have and do grant copyrights as well)
2) Copyright covers more than distribution. See, e.g. 17 USC 106.
As I understand the case, the judge said that a technology would be legal if it was demonstratably useful and intended for legal purposes. Napster failed that test, because there simply wasn't an existing base of legal music files at the time. Kazza succeeded because it was able to show that its design allowed for any type of file regardless of legality.
This isn't correct.
The Sony case, from the Supreme Court, said that if a technology is capable of substantial noninfringing uses, the knowledge prong of contributory infringement isn't satisfied merely by making the technology.
Note that this doesn't require there to be current substantial noninfringing uses (though that is helpful) but that there need only be the potential of them.
The Napster court, followed Sony and did not ascribe knowledge to it based on the capabilities of the software. However, it did find that for other reasons, they did have sufficient knowledge (and contribution) for contributory liability to stand, and that they vicariously infringed.
What later P2P networks have been doing is ensuring that they are not in a position to have knowledge whilst contributing to infringement, and that they cannot vicariously infringe. They've been doing this basically by decentralizing, so that they are akin to Sony, which makes VCRs, but is unable to control what people do with them. Napster had the ability to kick people off, filter out files on the network, etc. which was their downfall.
The Grokster case may reverse Sony in some fashion -- we'll know in the next couple of months.
At any rate, search engines are too controllable by their maintainers to rely on Sony as a defense. Thus, the 512 safeharbor is key. But it takes some work to comply with it, so hopefully they have done so.
their 100 meg zip drive came out at a time where hard drives were barely that size
Meh. When Zips came out, about 10 years ago, I had a 750MB drive, and that wasn't unusually large. Where Zips excelled was in price. SyQuests and Bernoullis cost a lot more.
Well, what you're thinking of is likely section 105. It only applies to the federal government, however, and doesn't permit the government to allow other entities to claim a copyright on the government work.
Related to that are various agency rules that apply for works which aren't government works, but which do involve government funding. And also the due process guarantees of the 14th amendment and various state laws could preclude copyrights on various forms of state laws, rules, caselaw, etc.
There's also 102(b) of course, for material that's simply outside of the scope of copyright. 102(a) has to be satisfied in order to obtain a copyright. And 103(a), for unlawfully used material in making derivatives. 103 also prevents derivative works with too little additional original matter from being copyrightable. The utility doctrine prevents the functional parts of pictoral, graphic, and sculptural works from being copyrightable, which might include the entire thing if they're inseperable. The merger doctrine prevents copyright from applying where there are only a small number of expressions of an idea available.
There are likely a couple of other very minor instances in which a work is uncopyrightable, but those are the main ones. And yes, they are fairly uncommon.
Unless a content creator explicitly enters his work into the public domain, it is copyrighted.
There are actually a few other instances in which it's not copyrightable.
How do you explain the phrase "He stole my idea.", if your arguement is correct.
How do you explain why so many foods with artificial raspberry flavoring are blue?
It's a common phrase, but that doesn't make it correct any more than the once-common belief in a flat earth was correct. The fact that a concept is popular has little to do with its accuracy. (Plus, ideas can't be copyrighted)
It's not theft. It is OTOH, illegal. It's rather like how if you burn down someone's house, that's arson, not theft. Or if you intrude on their land, that's trespass, not theft.
If I make available a movie for people to download, I am competing directly with the movie maker.
So? Competition is generally regarded as a very good thing. It results in a more efficient marketplace. Additionally, if I make a different movie, targeted at the same group of customers, I'm in direct competition as well.
Copyrights are a monopoly. They should not be tolerated unless there is a clear advantage to the public in having them, and then only to the degree that they yield the greatest public advantage.
Centuries, actually. In fact, it predates copyright law.
Because aside from direct infringement, there are also doctrines of contributory and vicarious infringement. Under these doctrines, in the right circumstances, assisting someone to infringe results in liability for not just the actual infringer, but also those who helped.
That's how Napster was taken down -- they helped their users infringe. There are ways to avoid danger (see e.g. 17 USC 512) but you need to be careful in order to take advantage of them.
What I find perverse is that people seem to think that there are no civil and criminal penalties for downloading, when in fact there are.
Well, if it's going to be in the US, I would hope that they've been extremely careful to comply with all the relevant provisions of 17 USC 512.
Usenet folks can get away with downloading since downloading copyrighted material is not technically illegal
Yes it is. See 17 USC 501 and 106(1) for the statutory law, and cases such as Napster for the caselaw.
I guess if Mr. Cohen doesn't host the files himself but merely links to where the files may be found, he could wiggle through that legal loophole.
No, that would still be contributory infringement. Hence the need for the 512 safe harbor. Remember, Napster didn't host files either, but just helped downloaders find uploaders.
Wonderfull business plan, just sue the whole population and then let them all sort it out among themselves!!!! I mean the guilty is supposedly among them for sure!
Oh, it really only works within a comparatively small group where it's unreasonable for the plaintiff to have to find the exact wrongdoer, but it's clear that someone was the wrongdoer.
The classic example of a joint and several liability scenario is where you go to the hospital for surgery, are anesthetized into unconsciousness, and when you wake up, someone's left some surgical instruments in your guts. Obviously you have no idea who did it, but it must've been one of the people in the operating room. They are better situated to figure it out than you are, even if you're diligent, and you should not be prevented from getting damages altogether just because you were unconscious at the time.
Just because you share a household does not mean you are automatically all jointly responsible for the others action, can be sued in group or treated as one and the same for legal/illegal purposes.
True, but in the scenario you describe, where people share a household and a computer, joint and several liability is quite reasonable. If there were information reasonably available to the plaintiff as to which of them did it, he wouldn't need to resort to it, would he?
Which brings us to the wonderful world of joint and several liability. If the plaintiff can't figure out which of you it was, it sues all of you, and you all have to pay damages (i.e. shares of the overall sum, which doesn't increase, but anyone who comes up short has to be covered by the others). Then you can all sort it out amongst yourselves, with the truly liable party having to repay the shares of the damages the others had to pay.
The US is a very plaintiff friendly place, you know.
Well, even with regards to P2P, though, 506(a)(1)(A) and (B) could apply equally to uploaders or downloaders.
It's (C) that's distribution only.
Well, typically with downloading, the recipient is the person who is the factual and proximate cause. If you don't click on the link, or start up the download in the P2P app, or whatever, nothing happens.
Perhaps people who are the victims of hacking aren't to blame if their machine is used to download things without their involvement, but this is at best pretty rare. Most machines that download do so because their users want them to.
Anyhow, yeah, the recipient makes a copy, which is enough to trigger the statute.
With the caveat that only distribution falls under criminal law.
No. You need to read 17 USC 506. Under the right circumstances, any kind of infringement will suffice (what constitutes infringement is set forth by 501).
Your logic is equivalent to claiming that browsing the web is a constant copying of copyrighted content.
It is. The courts have even said so.
Remember, a copy is defined in the law as a material object. It is impossible to download a copy just as it is impossible to download a glass of water. Rather, the computer at the receiving end IS the copy -- its memory is the tangible object in which the intangible work is fixed.
You need to read the Intellectual Reserve case.
Also, n.b. that deleting an earlier generation copy is irrelevant. So long as a work was fixed in a new medium, thereby producing a new copy, that's the infringement. The disposition of the previous copy has no weight.
what's protected? Is it the bits which represent information, or the information itself?
The latter, including when it is represented by various bits.
You have no way to know when downloading something that it is has a copyright.
Then it's convenient that copyright law doesn't care whether you know or not. If you do it, regardless of your knowledge or intent, it's illegal.