Which is precisely why it is crucial that in order to get a copyright, various formalities must be satisfied, including depositing several best copies with the Library of Congress. These may then be used as a seed for the public, if no other copies of equal quality are available.
It also demonstrates why copyright (aside from a very minor copyright to cover unpublished works in development so that manuscripts aren't swiped and printed up before they're ready, etc.) is inappropriate for unpublished works.
If a work is forever kept private, well, that's unfortunate, but there's no way to force it out. Neither though should we reward the selfish person who's got it. Instead, we should encourage them to release it, and barring that, not provide them with significant remedies or benefits which they haven't earned.
What is being stolen is the value of the downloaded music.
No, it's not, and furthermore, copyright infringement is not stealing. It's infringement. If you absolutely had to equate it to something else, trespass would be a more apt (yet still highly imperfect) comparison.
I think the most apt comparison would be trespass upon an appurtenant negative easement of an estate*. But this is sufficiently too far from what most people here know anything about that we might as well not pursue it as an aid to understanding.
The point is that while your right to exclude people from the land might be violated when someone crosses onto it, your land and and your right to exclude them, or others, is not stolen as a result.
What is immoral about that?
What's moral about it? As I've said elsewhere, copyright is basically amoral. It's useful, but it's neither good nor bad in the main. Disputes generally deal with how useful it is, and how to make it more useful. And this raises a question I'd like you to respond to, if you respond: useful to whom?
* While traditionally, and even to a degree now, we can think of copyright as a negative easement for a term of years, mapping out the equivalent shifting executory interests, contingent remainders, etc. is too big a pain in the ass for this post.
very very few people have any interest in them. Do you honestly believe they would be any more readily available if copyright laws were changed?
Yes. While it might not be ecomically feasible to produce copies of them, if the public were allowed to make copies at will, then those interested persons would shoulder the marginal costs themselves.
Kind of like how if you only need a copy of one page from a reference book, you can't get it, even if you're willing to pay, say, the prorated cost of it in comparison to the price of the book as a whole. But you would be willing to put money into the library xerox machine to make a copy of it.
At a certain point, diminishing returns makes it impractical for copyright to provide a benefit to copyright holders, but still harms the public by impairing their freedom of action.
Of course, I think there are other concerns in favor of reduced term and scope aside from copyright holders currently being overly rewarded for their work in light of what they can exploit it for. But hopefully this answers your question.
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But if the music and lyrics were already copyrighted, then bootlegging them would still be infringing.
The law you're looking at only applies in the narrow circumstance of bootleg recordings of improvisational musical performances, basically.
But that is a fascinating case, with some interesting implications for the DMCA, IMO.
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Substantially non-infringing uses.
Wrong precedent.
Sony -- which is in jeopardy -- says that providing a technology that is capable of substantial non-infringing uses is insufficient to demonstrate the knowledge prong of contributory liability.
But the site operators aren't merely providing a technology. They're continually providing a service. That's different.
Napster brought up Sony too. And they lost, because the 9th Cir. found that they did more than Sony had been doing, and that knowledge could be demonstrated without needing to consider the mere provision of technology.
And dollars to donuts, the same goes here.
The law should not be allowed to be used as a club against those who cannot afford to defend themselves.
If I can take this to mean that you support the idea of the government providing public civil defenders for people, then that's not a terrible idea. After all, it means there'd be more jobs for lawyers, and no big reduction in existing jobs or pay since people would likely still prefer to go to the private sector.;)
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What they can't get in the courts, they're going to try otherwise -- legal, or not.
It is a true shame that lawyers aren't automatically disbarred when they commit illegal acts. And it is an illegal act to threaten someone with an expensive lawsuit when they haven't broken the law.
Out of curiosity, what makes you think that torrent site operators haven't broken the law?
Also, you're adopting an overkill approach. Consider the Grokster case, currently pending before the Supreme Court. The caselaw is pretty clear that Grokster is legal, and the lower courts all agreed that it was legal. But now there is general agreement that the Supreme Court will retreat somewhat from the Betamax precedent, and rule against Grokster, by modifying the law somewhat (which they can do since it's a common law question -- courts are also known for changing their minds from time to time, admitting that previous decisions were wrong, etc.).
How could MGM's lawyers -- who will probably win years later, after pursuing appeals -- have possibly known back in the C&D stage that they would win? (if they win)
Courts exist to settle disputes. While lawyers are good at assessing what courts will probably do, it is generally impossible to predict the ultimate outcome of a case with absolute certainty before the first step has occurred. But that's exactly what you're demanding, and you clearly don't respect the courts' job since you want lawyers to never go to court unless everything is open and shut, which means that there'd be no need to go to court, and we wouldn't have courts at all.
You really think that ending someone's career because they can't see the future is a good idea? That people should be disbarred merely because they're asking a neutral party to step in and settle a dispute?
Basically, your opinion is not well thought out, and dare I say, stupid.
Well, copyrights only last for a limited time. So why is it that it's morally wrong to download a work at 11:59 pm on Dec. 31, and morally right to download the same work at 12:01 am on Jan. 1?
As I see it, there are legitimate reasons to have copyright law, but they're not moral reasons; they're utilitarian ones. Copyright is basically amoral, and if I were forced to find anything moral in the entire concept, it would be piracy, as copyright is a form of censorship (mild perhaps, but it still is what it is) and piracy helps both to ensure the survivability of works, and that all persons who want to use the work may. But in the main, it's all amoral.
If any of them are infringing, then they all are. Infringers are not merely direct infringers, who themselves violate the exclusive rights of copyright holders, but also are contributory and vicarious infringers, who assist or are responsible for others' infringements.
Given the right circumstances -- which are not hard to meet -- it's pretty easy to be held liable for the infringements of another person due to your involvement with that person.
AFAICT he seems to be saying that NDAs, assignments, etc. are unenforceable. (Or the opposite, depending on where he is in the conversation, if not on Mars)
Contracts are enforced by the government at the behest of the parties or at least beneficiaries. I certainly didn't say that the government could sue for breach of contract out of nowhere, and it's crazy to think that anyone is arguing that either. If that's what he thinks I'm saying, then he's pretty screwed up right there.
I am really a lawyer. What's more, copyright is my main practice area.
While copyright can be thought of as being tort-like, it is entirely statutory in nature for our purposes. The common law of torts (or common law of copyrights) doesn't really apply, since statutes override common law.
Statutory copyright law is very clear that remedies are available regardless of damages. If you want to persist in your claim that some damages are required, you'll need to cite to some authority in support of your position. This means either the statutes, or a relevant case. Copyright is a fairly specialized area; a generic tort case won't suffice.
It still looks to me that any lawfull made copy can be freely distributed with no permision needed, while unlawfull copies can not, right? And it is irellevant WHO made the copy, as long as it is lawfully made, right?
Yes.
That basically means, if I understand it, that if I buy a book in USA or Japan (for example) and take it home, I can't sell it or give it away, since the copyright holder has not yet distributed that copy (or permited it) inside EU.
There has been some litigation in the US, where a US copyright holder attempted to prevent the distribution in the US of copies it made for sale aborad. Due to 109, they lost, and the distribution was found noninfringing.
If that is the case, US copyright law in this aspect seem to differ from European ones (well, perhpas not all) were the copyright holder always get distribution rights for any copy made and loses it (on a per copy basis) after the first distribution only.
Actually, I was not thinking of any specific paragraph in US copyright law since I am not american and not familiar with it in such detail. I was speaking more in general only.
Fair enough.
If we stick to lawfully made copies, is there really ANY time someone other than the copyright holder can NOT sell a copy?
The seller needs to be the owner (or authorized by the owner) of the copy. So the pernicious practice of EULAs can interfere with this.
And 'lawfully made' refers only to copies lawfully made by the United States copyright holder, as distinguished from the holders of foreign copyrights on the same work. This plays into why importation of copies is often an infringement of the distribution right, and why there has to be a section setting up some very narrow exceptions (narrower than people think, as the section is often misread) under which copies may be imported by persons other than the US copyright holder.
But you seem to sugest that a (lawful) copy someone else make, the copyright holder never has distribution rights to (still talking only about sale and giving away). Is that correct?
Yes.
So why give it to the copyright holder as an exclusive right and then make it never apply?
It applies. For example, let's say we have two people, A, and B, and a copyright holder C.
A makes copies of C's work unlawfully. Clearly he has infringed C's reproduction right. But if he gives copies to B, and B starts selling them, B has not infringed C's reproduction right. The copies are already made. All B is doing is distributing unlawfully made copies, and so unless C can prevent such a thing independently, B will get away with it.
Note also that mental state is not really important in US copyright law. Even if B does not think he is infringing, and has no reason to think he is infringing, he can still break the law. Thus, C has remedies against B even if A and B are not working together.
You're thinking of the sum of 106(3) and 109. Really, there are a number of limits to the first sale doctrine in 109 (e.g. it prevents you from renting music CDs, but permits you to rent videos). Also, by its own language, it only applies to lawfully made copies. If you lawfully make a copy per fair use then, 109 is applicable and you can resell it without infringing on the distribution right.
This is why you virtually always see infringement of the distribution right in connection with infringement of the reproduction right.
I do apologize for confusing you with the original poster -- you haven't made the wrong claim he did (though you make plenty of wrong claims), but I fail to see why you're responding unless you agree with him, in which case I'd still like to see some proof.
You're contradicting yourself -- which is impressive in that both of your lines of argument are not just wrong, but asinine -- and I find it mildly humorous to point this out. You're not just hanging yourself, but you're furiously paying out rope to do it with too. It's hilarious.
Here you say that some NDAs are enforcable.
But before you said, directly in response to a point about NDAs: The Constitution does not recognize your right to sign away your right to free speech, or freedom of religion, or any other rights which citizens entail.
An NDA is a binding agreement to not disclose a particular subject, period. It has no real connection to copyrights or patents, etc. The subjects might overlap, but they just as easily might not.
The right involved in an NDA is, instead, free speech. You're agreeing in a contract to not speak on the covered subject, and you may need to pay damages and such if you do.
If you're agreeing that at least some NDAs are lawful under the Constitution, how can this be reconciled with your prior claim that the Constitution forbids them?
The answer is that your arguments are unadulterated crap, and that every time you post, you demonstrate further how stupid you are. And while I do derive a small amount of amusement from exposing this (not that it's hard work or anything) it really would be better if you just stopped your feeble attempts to argue with people.
So you've admitted that you were wrong? I don't see you defending your claim.
Try being a decent human being for an hour. I imagine you'll experience something similar to what most people experience when they have a deeply religious moving experience.
I am a decent human being, but that doesn't excuse you from being wrong about an easily verifiable fact. You were demonstrably wrong, and I have corrected you.
That's an abomination and the courts have no Constitutional authority to support it.
So, all evidence to the contrary, you're saying that NDAs are unenforceable.
At the very least, I have to wonder if the weather is nice on whatever planet you're on. You sure aren't on Earth.
I guess we'll have to say that the conviction is summarily overturned.
No, you'll have to say that. And as usual, you'll be wrong. I tell you what, why don't you try it yourself and see if you're right?
As a lawyer you're far more familiar with self-delusion than I could ever dream to be.
So plus you're saying that lawyers are inherently delusional? Well, you don't know the first thing about the law (in fact, I'm impressed you can spell the word 'law'), but it hasn't stopped you from being delusional. Thus I find it difficult to believe there's a connection.
The reason I can legally make copies for personal use isn't a specific "fair use" exception; rather, it's that since these copies do not diminish the value of the copyright, they aren't actionable.
Wrong.
17 USC 501 and 106 prohibit reproduction of the work, period, except where specifically excepted. They don't say a word about limiting actionable reproduction where damages result:
Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A (a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.
17 USC 501(a).
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
17 USC 106.
So I've destroyed your claim that copyright does not extend to personal use infringements from the get go. You can't even rebut this, since all you could possibly hope for would be a specific exemption, and you've said that that's not how it's structured.
I'm forced to conclude that you're either stupid or lying. I'd prefer to think of you as stupid, and to hope that in the future you will not make a claim about something before carefully verifying it first.
Hmm. If Reality and the Law disagree, I'd say it's the Law (rather than Reality) that has the problem.
No, not really.
Copyright law isn't concerned with any particular instance of a work, it's concerned with the actions people take in connection to a work.
So for example, reproduction of copyrighted works is illegal. If you write a poem, it is illegal for me to reproduce your poem in a new copy. OTOH, it is not illegal for me to independently write a poem which happens to be identical to your poem. Since I haven't reproduced your poem -- i.e. consulted yours in crafting mine -- I'm in the clear. (Of course, as works become more complex, the likelihood of independent creation goes down sharply, so it can be hard to convince people that you've acted lawfully)
If I am entitled to a certain file of bits (a rip of MY CD), then it does not matter where that file came from. I have the bits I'm entitled to. I'm entitled to the bits I have.
But copyright law isn't structured in what you're able to have, it's what you're able to do.
It might be okay for you to reproduce the work yourself from one source, or by one method, but not another. That the end result is the same is not relevant, because it's not the end result that's the focus of the law. It's the process.
Kind of like how on a math test, if you supply a correct answer, this is not as good as showing your work and getting the correct answer. No one cares, with regards to math tests, what the answer is. You're trying to demonstrate that you have the skill to find it, and a naked answer isn't a good demonstration. Certainly it's not useful later, when people will want to know your methodology so that your work can be verified.
The essayists child porn example is an apt one. Child porn is not a subset of obscenity, and thus, if we looked at it purely from the standpoint of obscenity, some of it would be okay to make and distribute. Plus, possession of obscene materials is not illegal.
No one cares all that much about child porn with regards to obscenity, however. The main objection is that making it is harmful to the children involved, and that in order to discourage child abuse, people making, distributing, and possessing child porn should be prosecuted.
This means that since we're concerned about the children, if they're removed from the equation, the reasons for treating child porn specially go away. You can't harm children that aren't there.
So if you have two identical photos, and one was made with real children, and the other was not (it's just a good rendering or something) then only the former is child porn. Because again, what the law is focusing on is the process, not the end product.
How do you make money off ideas that entail no serivce? If I write a story a publisher could just steal it and print it on paper. I would have no rights to any profits they make.
Obviously the marginal costs must be low, or else no one would try to pirate it. People often pirate music; they do not pirate gothic cathedrals. (In fact, most gothic cathedrals are in the public domain, and still rarely get reproduced)
So your trick is to have low fixed costs, and to take advantage of being first to market (since it will take time for pirates to be able to gear up so as to seriously compete with you) so as to recoup them.
Since nothing prevents you from using the same or perhaps better technology than pirates use (e.g. CD factories have lower marginal costs than people that burn CDs), you should aim for maximum efficiency, and pursue whatever profit is available. Pirates also frequently pursue profit -- this means it's there. Could be less than you'd like, but it's there. After all, the work is at this point a commodity, and you don't have a monopoly on it. The market dictates that actors must pursue efficiency, which of course benefits everyone, more or less.
Plus, not everything will face pirates that are competing for profits. Most works suck. Sturgeon was, if anything, an optimist. And furthermore, most works make most of their profit almost immediately. After a few months, you're in serious diminishing returns land. This is why works go out of print during their copyright term -- they're not profitable to print, stock, or sell. A handful of works have long-term vitality, but it's a fraction of a percentage at best. And they may remain profitable even without a copyright; I paid good money for a copy of Shakespeare, but I could've downloaded his works for free. There are still popular public domain works even today, where people really will pay good money for the copy itself.
Pirates will generally prefer to wait and see what works are profitable beyond the immediate term (since it takes them time to gear up, and this is how they avoid inefficiencies) but in the meantime, you can make quite a bit. Basically, you're taking the bigger gamble, and will do better if it pays off. If the work is a flop, it won't get pirated, but neither will you ever make money from it anyway. And this actually is the rule under copyright. Have you seen street vendors with bad copies of Ishtar, Gigli, Heaven's Gate, or Cutthroat Island?
Pirates not pursuing a profit are trickier, but will have finite resources since no one can afford to be so charitable that they can no longer have basic necessities that the charity relies on.
Frankly, I don't think there's much that can be done about the latter, and charity is admirable. After all, pirates, not monopolists, are to thank for ensuring that works become maximally widespread, that they survive, etc.
So probably they're a write-off, but while this might reduce the overall profit pool, it likely doesn't eliminate it.
Given all this, I personally don't advocate abolishing copyright, but I do think that it could be greatly reduced, and part of that includes reducing it to only cover the profit-oriented ground. (e.g. if you want to give copies away, that's allowed, but only the copyright holder could sell them) This is also far easier to enforce. It's easier to find and get damages out of pirates that have been making money than those that merely give stuff out in a one-way manner.
This may reduce the potential profit of works -- though there's a lot of non-profit piracy right now and it doesn't seem to be having that big an impact -- but it's probably a better policy given social norms and the difficulty of perfect enforcement.
Another side effect is that works will likely be lower in budget, but of course there is not an absolute correlation between budget and quality as many expensive flops and successful small projects can attest to. This might mean that big budget works are just not feasible in connecti
Or put more simply, an exclusive right is a right to exclude others.
Interestingly, copyrights don't confer a right to do anything; that falls to the rights of free speech and press, as guaranteed by the First Amendment.
A corollary of this is that everyone essentially has the same right to e.g. reproduce a work as the author does. However, for the term of copyright, most people are generally excluded from doing so. Upon expiration of the copyright, the public doesn't gain rights, but is no longer impaired from exercising the rights they've had all along.
You can but, should at any time you choose to rescind that contract, the Constitution protects you because you still have those rights.
And yet, I can still recover damages from you for having breached the contract.
But, Constitutionally, I should be allowed to demand a new trial within my rights and they should be required, Constitutionally, to proove their case with my past testimoney weighed against my current silence taking into account any duress that may have been placed on me in the circumstances of my past testimony.
After your conviction, you've had your trial, and you're done. In fact, additional trials are precluded by double jeopardy.
Also, silence persuant to the 5th Amendment is not taken into consideration. If it were, the failure to testify on one's own behalf would almost certainly be taken as a sign of guilt.
So it seems as though your fantasy world has a remarkable constitution, quite different from anything real.
In the real world, assignment is a practice as old as copyright itself, endorsed by every authority in our legal tradition, and pretty clearly in full compliance with the Constitution.
You may dislike it, but you delude yourself, and mislead others to say anything more than that you -- apparently unreasonably -- dislike it.
I listed several examples of how people might waive or contract away that which is protected by the Constitution.
If I can contract away my right to speak about some specific thing, how is that materially different from contracting away my a copyright to a specific work?
This is covered by search and seizure without a warrant.
And? If you consent to the search, no warrant is needed.
Constitutionally you can't waive [the rights against self-incrimination, counsel, trial, or jury]. I know.
Sure you can. Go get arrested for something, admit to the police that you did it (waiving your right against self incrimination), tell them you don't want a lawyer, and plead guilty, which avoids a trial (or plead innocent, but waive a jury, which will give you a bench trial in which the judge is the factfinder instead of the jury).
This is all everyday stuff.
People like you have managed to funnel enough money to politicians and Supreme Court Justices to encourage them to look the other way when such abuses happen.
For 295 years?
You're a self-admitted lawyer.
I'm not self-admitted. I was admitted by the Supreme Judicial Court of the Commonwealth of Massachusetts.;)
Their word was given under terms of a contract which was unconstitutional. The contract is null and void in the eyes of the government.
A proposition which you haven't shown any support for, and which centuries of practice seem to rebut.
The house was legally bought and sold. If I sell my idea to a company, they legally bought it and I legally sold it but they do not have the right to keep me from using that idea to benefit someone else.
They do if you gave them that right. Which is what happens in an assignment.
The Constitution does not recognize your right to sign away your right to free speech, or freedom of religion, or any other rights which citizens entail.
So you're saying that I cannot lawfully sign an NDA? That if the police come to my door, have no warrant, and ask to conduct a search, that I cannot choose to let them in? That I cannot choose to testify against myself in court? That I cannot waive trial, or counsel, or jury?
Given that the world obviously isn't like that, don't you think that maybe you're wrong?
Most of what you're looking at are not rights granted by the Constitution, but rather rights guaranteed by the Constitution. The promise that the government will allow you to conduct your own affairs as you like, and will behave in certain ways, doesn't constrain you. The government cannot force you to speak or be silent, but you can of course choose either, and make agreements to that effect.
Some things aren't waivable, e.g. the 13th Amendment, but this is attributable to the way that they're written, not some universal principle.
Current laws regarding intellectual property take away the ability of the author or inventor to bargain by locking them into a one-time decision when it should allow the author or inventor the freedom to say,"Sorry. Your company sucks. I'm taking my ideas and going elsewhere."
So you're saying that in fact they can bargain. What you're upset about is a perception that artists can't go back on their word.
So... ten years after you sell your house, do you think that you ought to be able to march in and take it back? To say "Sorry, but it was a crappy deal, and I'm taking back my house and selling it to someone else."
Contract law is all about making promises binding. That's the idea. Sorry if you don't like it, but maybe you should be more careful in the future.
The Act's main purpose is to facilitate personal uses -- which are not coextensive with fair uses -- only where money is paid out and DRM is instituted.
Fair use permits any fair use, by anyone, for any purpose, without payment, and without DRM.
I think they're pretty different.
Also AHRA merely makes certain infringements nonactionable, which more restrictive than fair use, which makes certain otherwise infringing conduct non-infringing.
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Which is precisely why it is crucial that in order to get a copyright, various formalities must be satisfied, including depositing several best copies with the Library of Congress. These may then be used as a seed for the public, if no other copies of equal quality are available.
It also demonstrates why copyright (aside from a very minor copyright to cover unpublished works in development so that manuscripts aren't swiped and printed up before they're ready, etc.) is inappropriate for unpublished works.
If a work is forever kept private, well, that's unfortunate, but there's no way to force it out. Neither though should we reward the selfish person who's got it. Instead, we should encourage them to release it, and barring that, not provide them with significant remedies or benefits which they haven't earned.
What is being stolen is the value of the downloaded music.
No, it's not, and furthermore, copyright infringement is not stealing. It's infringement. If you absolutely had to equate it to something else, trespass would be a more apt (yet still highly imperfect) comparison.
I think the most apt comparison would be trespass upon an appurtenant negative easement of an estate*. But this is sufficiently too far from what most people here know anything about that we might as well not pursue it as an aid to understanding.
The point is that while your right to exclude people from the land might be violated when someone crosses onto it, your land and and your right to exclude them, or others, is not stolen as a result.
What is immoral about that?
What's moral about it? As I've said elsewhere, copyright is basically amoral. It's useful, but it's neither good nor bad in the main. Disputes generally deal with how useful it is, and how to make it more useful. And this raises a question I'd like you to respond to, if you respond: useful to whom?
* While traditionally, and even to a degree now, we can think of copyright as a negative easement for a term of years, mapping out the equivalent shifting executory interests, contingent remainders, etc. is too big a pain in the ass for this post.
very very few people have any interest in them. Do you honestly believe they would be any more readily available if copyright laws were changed?
Yes. While it might not be ecomically feasible to produce copies of them, if the public were allowed to make copies at will, then those interested persons would shoulder the marginal costs themselves.
Kind of like how if you only need a copy of one page from a reference book, you can't get it, even if you're willing to pay, say, the prorated cost of it in comparison to the price of the book as a whole. But you would be willing to put money into the library xerox machine to make a copy of it.
At a certain point, diminishing returns makes it impractical for copyright to provide a benefit to copyright holders, but still harms the public by impairing their freedom of action.
Of course, I think there are other concerns in favor of reduced term and scope aside from copyright holders currently being overly rewarded for their work in light of what they can exploit it for. But hopefully this answers your question.
But if the music and lyrics were already copyrighted, then bootlegging them would still be infringing.
The law you're looking at only applies in the narrow circumstance of bootleg recordings of improvisational musical performances, basically.
But that is a fascinating case, with some interesting implications for the DMCA, IMO.
Substantially non-infringing uses.
;)
Wrong precedent.
Sony -- which is in jeopardy -- says that providing a technology that is capable of substantial non-infringing uses is insufficient to demonstrate the knowledge prong of contributory liability.
But the site operators aren't merely providing a technology. They're continually providing a service. That's different.
Napster brought up Sony too. And they lost, because the 9th Cir. found that they did more than Sony had been doing, and that knowledge could be demonstrated without needing to consider the mere provision of technology.
And dollars to donuts, the same goes here.
The law should not be allowed to be used as a club against those who cannot afford to defend themselves.
If I can take this to mean that you support the idea of the government providing public civil defenders for people, then that's not a terrible idea. After all, it means there'd be more jobs for lawyers, and no big reduction in existing jobs or pay since people would likely still prefer to go to the private sector.
What they can't get in the courts, they're going to try otherwise -- legal, or not.
It is a true shame that lawyers aren't automatically disbarred when they commit illegal acts. And it is an illegal act to threaten someone with an expensive lawsuit when they haven't broken the law.
Out of curiosity, what makes you think that torrent site operators haven't broken the law?
Also, you're adopting an overkill approach. Consider the Grokster case, currently pending before the Supreme Court. The caselaw is pretty clear that Grokster is legal, and the lower courts all agreed that it was legal. But now there is general agreement that the Supreme Court will retreat somewhat from the Betamax precedent, and rule against Grokster, by modifying the law somewhat (which they can do since it's a common law question -- courts are also known for changing their minds from time to time, admitting that previous decisions were wrong, etc.).
How could MGM's lawyers -- who will probably win years later, after pursuing appeals -- have possibly known back in the C&D stage that they would win? (if they win)
Courts exist to settle disputes. While lawyers are good at assessing what courts will probably do, it is generally impossible to predict the ultimate outcome of a case with absolute certainty before the first step has occurred. But that's exactly what you're demanding, and you clearly don't respect the courts' job since you want lawyers to never go to court unless everything is open and shut, which means that there'd be no need to go to court, and we wouldn't have courts at all.
You really think that ending someone's career because they can't see the future is a good idea? That people should be disbarred merely because they're asking a neutral party to step in and settle a dispute?
Basically, your opinion is not well thought out, and dare I say, stupid.
Well, copyrights only last for a limited time. So why is it that it's morally wrong to download a work at 11:59 pm on Dec. 31, and morally right to download the same work at 12:01 am on Jan. 1?
As I see it, there are legitimate reasons to have copyright law, but they're not moral reasons; they're utilitarian ones. Copyright is basically amoral, and if I were forced to find anything moral in the entire concept, it would be piracy, as copyright is a form of censorship (mild perhaps, but it still is what it is) and piracy helps both to ensure the survivability of works, and that all persons who want to use the work may. But in the main, it's all amoral.
If any of them are infringing, then they all are. Infringers are not merely direct infringers, who themselves violate the exclusive rights of copyright holders, but also are contributory and vicarious infringers, who assist or are responsible for others' infringements.
Given the right circumstances -- which are not hard to meet -- it's pretty easy to be held liable for the infringements of another person due to your involvement with that person.
I bet he's not.
AFAICT he seems to be saying that NDAs, assignments, etc. are unenforceable. (Or the opposite, depending on where he is in the conversation, if not on Mars)
Contracts are enforced by the government at the behest of the parties or at least beneficiaries. I certainly didn't say that the government could sue for breach of contract out of nowhere, and it's crazy to think that anyone is arguing that either. If that's what he thinks I'm saying, then he's pretty screwed up right there.
I am really a lawyer. What's more, copyright is my main practice area.
While copyright can be thought of as being tort-like, it is entirely statutory in nature for our purposes. The common law of torts (or common law of copyrights) doesn't really apply, since statutes override common law.
Statutory copyright law is very clear that remedies are available regardless of damages. If you want to persist in your claim that some damages are required, you'll need to cite to some authority in support of your position. This means either the statutes, or a relevant case. Copyright is a fairly specialized area; a generic tort case won't suffice.
It still looks to me that any lawfull made copy can be freely distributed with no permision needed, while unlawfull copies can not, right? And it is irellevant WHO made the copy, as long as it is lawfully made, right?
Yes.
That basically means, if I understand it, that if I buy a book in USA or Japan (for example) and take it home, I can't sell it or give it away, since the copyright holder has not yet distributed that copy (or permited it) inside EU.
There has been some litigation in the US, where a US copyright holder attempted to prevent the distribution in the US of copies it made for sale aborad. Due to 109, they lost, and the distribution was found noninfringing.
If that is the case, US copyright law in this aspect seem to differ from European ones (well, perhpas not all) were the copyright holder always get distribution rights for any copy made and loses it (on a per copy basis) after the first distribution only.
That's certainly interesting.
Actually, I was not thinking of any specific paragraph in US copyright law since I am not american and not familiar with it in such detail. I was speaking more in general only.
Fair enough.
If we stick to lawfully made copies, is there really ANY time someone other than the copyright holder can NOT sell a copy?
The seller needs to be the owner (or authorized by the owner) of the copy. So the pernicious practice of EULAs can interfere with this.
And 'lawfully made' refers only to copies lawfully made by the United States copyright holder, as distinguished from the holders of foreign copyrights on the same work. This plays into why importation of copies is often an infringement of the distribution right, and why there has to be a section setting up some very narrow exceptions (narrower than people think, as the section is often misread) under which copies may be imported by persons other than the US copyright holder.
But you seem to sugest that a (lawful) copy someone else make, the copyright holder never has distribution rights to (still talking only about sale and giving away). Is that correct?
Yes.
So why give it to the copyright holder as an exclusive right and then make it never apply?
It applies. For example, let's say we have two people, A, and B, and a copyright holder C.
A makes copies of C's work unlawfully. Clearly he has infringed C's reproduction right. But if he gives copies to B, and B starts selling them, B has not infringed C's reproduction right. The copies are already made. All B is doing is distributing unlawfully made copies, and so unless C can prevent such a thing independently, B will get away with it.
Note also that mental state is not really important in US copyright law. Even if B does not think he is infringing, and has no reason to think he is infringing, he can still break the law. Thus, C has remedies against B even if A and B are not working together.
You're thinking of the sum of 106(3) and 109. Really, there are a number of limits to the first sale doctrine in 109 (e.g. it prevents you from renting music CDs, but permits you to rent videos). Also, by its own language, it only applies to lawfully made copies. If you lawfully make a copy per fair use then, 109 is applicable and you can resell it without infringing on the distribution right.
This is why you virtually always see infringement of the distribution right in connection with infringement of the reproduction right.
If I am a shill, who am I shilling for, pray?
I do apologize for confusing you with the original poster -- you haven't made the wrong claim he did (though you make plenty of wrong claims), but I fail to see why you're responding unless you agree with him, in which case I'd still like to see some proof.
You're contradicting yourself -- which is impressive in that both of your lines of argument are not just wrong, but asinine -- and I find it mildly humorous to point this out. You're not just hanging yourself, but you're furiously paying out rope to do it with too. It's hilarious.
Here you say that some NDAs are enforcable.
But before you said, directly in response to a point about NDAs: The Constitution does not recognize your right to sign away your right to free speech, or freedom of religion, or any other rights which citizens entail.
An NDA is a binding agreement to not disclose a particular subject, period. It has no real connection to copyrights or patents, etc. The subjects might overlap, but they just as easily might not.
The right involved in an NDA is, instead, free speech. You're agreeing in a contract to not speak on the covered subject, and you may need to pay damages and such if you do.
If you're agreeing that at least some NDAs are lawful under the Constitution, how can this be reconciled with your prior claim that the Constitution forbids them?
The answer is that your arguments are unadulterated crap, and that every time you post, you demonstrate further how stupid you are. And while I do derive a small amount of amusement from exposing this (not that it's hard work or anything) it really would be better if you just stopped your feeble attempts to argue with people.
So you've admitted that you were wrong? I don't see you defending your claim.
Try being a decent human being for an hour. I imagine you'll experience something similar to what most people experience when they have a deeply religious moving experience.
I am a decent human being, but that doesn't excuse you from being wrong about an easily verifiable fact. You were demonstrably wrong, and I have corrected you.
That's an abomination and the courts have no Constitutional authority to support it.
So, all evidence to the contrary, you're saying that NDAs are unenforceable.
At the very least, I have to wonder if the weather is nice on whatever planet you're on. You sure aren't on Earth.
I guess we'll have to say that the conviction is summarily overturned.
No, you'll have to say that. And as usual, you'll be wrong. I tell you what, why don't you try it yourself and see if you're right?
As a lawyer you're far more familiar with self-delusion than I could ever dream to be.
So plus you're saying that lawyers are inherently delusional? Well, you don't know the first thing about the law (in fact, I'm impressed you can spell the word 'law'), but it hasn't stopped you from being delusional. Thus I find it difficult to believe there's a connection.
Wrong.
17 USC 501 and 106 prohibit reproduction of the work, period, except where specifically excepted. They don't say a word about limiting actionable reproduction where damages result:
17 USC 501(a).
17 USC 106.
So I've destroyed your claim that copyright does not extend to personal use infringements from the get go. You can't even rebut this, since all you could possibly hope for would be a specific exemption, and you've said that that's not how it's structured.
I'm forced to conclude that you're either stupid or lying. I'd prefer to think of you as stupid, and to hope that in the future you will not make a claim about something before carefully verifying it first.
Hmm. If Reality and the Law disagree, I'd say it's the Law (rather than Reality) that has the problem.
No, not really.
Copyright law isn't concerned with any particular instance of a work, it's concerned with the actions people take in connection to a work.
So for example, reproduction of copyrighted works is illegal. If you write a poem, it is illegal for me to reproduce your poem in a new copy. OTOH, it is not illegal for me to independently write a poem which happens to be identical to your poem. Since I haven't reproduced your poem -- i.e. consulted yours in crafting mine -- I'm in the clear. (Of course, as works become more complex, the likelihood of independent creation goes down sharply, so it can be hard to convince people that you've acted lawfully)
If I am entitled to a certain file of bits (a rip of MY CD), then it does not matter where that file came from. I have the bits I'm entitled to. I'm entitled to the bits I have.
But copyright law isn't structured in what you're able to have, it's what you're able to do.
It might be okay for you to reproduce the work yourself from one source, or by one method, but not another. That the end result is the same is not relevant, because it's not the end result that's the focus of the law. It's the process.
Kind of like how on a math test, if you supply a correct answer, this is not as good as showing your work and getting the correct answer. No one cares, with regards to math tests, what the answer is. You're trying to demonstrate that you have the skill to find it, and a naked answer isn't a good demonstration. Certainly it's not useful later, when people will want to know your methodology so that your work can be verified.
The essayists child porn example is an apt one. Child porn is not a subset of obscenity, and thus, if we looked at it purely from the standpoint of obscenity, some of it would be okay to make and distribute. Plus, possession of obscene materials is not illegal.
No one cares all that much about child porn with regards to obscenity, however. The main objection is that making it is harmful to the children involved, and that in order to discourage child abuse, people making, distributing, and possessing child porn should be prosecuted.
This means that since we're concerned about the children, if they're removed from the equation, the reasons for treating child porn specially go away. You can't harm children that aren't there.
So if you have two identical photos, and one was made with real children, and the other was not (it's just a good rendering or something) then only the former is child porn. Because again, what the law is focusing on is the process, not the end product.
How do you make money off ideas that entail no serivce? If I write a story a publisher could just steal it and print it on paper. I would have no rights to any profits they make.
Obviously the marginal costs must be low, or else no one would try to pirate it. People often pirate music; they do not pirate gothic cathedrals. (In fact, most gothic cathedrals are in the public domain, and still rarely get reproduced)
So your trick is to have low fixed costs, and to take advantage of being first to market (since it will take time for pirates to be able to gear up so as to seriously compete with you) so as to recoup them.
Since nothing prevents you from using the same or perhaps better technology than pirates use (e.g. CD factories have lower marginal costs than people that burn CDs), you should aim for maximum efficiency, and pursue whatever profit is available. Pirates also frequently pursue profit -- this means it's there. Could be less than you'd like, but it's there. After all, the work is at this point a commodity, and you don't have a monopoly on it. The market dictates that actors must pursue efficiency, which of course benefits everyone, more or less.
Plus, not everything will face pirates that are competing for profits. Most works suck. Sturgeon was, if anything, an optimist. And furthermore, most works make most of their profit almost immediately. After a few months, you're in serious diminishing returns land. This is why works go out of print during their copyright term -- they're not profitable to print, stock, or sell. A handful of works have long-term vitality, but it's a fraction of a percentage at best. And they may remain profitable even without a copyright; I paid good money for a copy of Shakespeare, but I could've downloaded his works for free. There are still popular public domain works even today, where people really will pay good money for the copy itself.
Pirates will generally prefer to wait and see what works are profitable beyond the immediate term (since it takes them time to gear up, and this is how they avoid inefficiencies) but in the meantime, you can make quite a bit. Basically, you're taking the bigger gamble, and will do better if it pays off. If the work is a flop, it won't get pirated, but neither will you ever make money from it anyway. And this actually is the rule under copyright. Have you seen street vendors with bad copies of Ishtar, Gigli, Heaven's Gate, or Cutthroat Island?
Pirates not pursuing a profit are trickier, but will have finite resources since no one can afford to be so charitable that they can no longer have basic necessities that the charity relies on.
Frankly, I don't think there's much that can be done about the latter, and charity is admirable. After all, pirates, not monopolists, are to thank for ensuring that works become maximally widespread, that they survive, etc.
So probably they're a write-off, but while this might reduce the overall profit pool, it likely doesn't eliminate it.
Given all this, I personally don't advocate abolishing copyright, but I do think that it could be greatly reduced, and part of that includes reducing it to only cover the profit-oriented ground. (e.g. if you want to give copies away, that's allowed, but only the copyright holder could sell them) This is also far easier to enforce. It's easier to find and get damages out of pirates that have been making money than those that merely give stuff out in a one-way manner.
This may reduce the potential profit of works -- though there's a lot of non-profit piracy right now and it doesn't seem to be having that big an impact -- but it's probably a better policy given social norms and the difficulty of perfect enforcement.
Another side effect is that works will likely be lower in budget, but of course there is not an absolute correlation between budget and quality as many expensive flops and successful small projects can attest to. This might mean that big budget works are just not feasible in connecti
Or put more simply, an exclusive right is a right to exclude others.
Interestingly, copyrights don't confer a right to do anything; that falls to the rights of free speech and press, as guaranteed by the First Amendment.
A corollary of this is that everyone essentially has the same right to e.g. reproduce a work as the author does. However, for the term of copyright, most people are generally excluded from doing so. Upon expiration of the copyright, the public doesn't gain rights, but is no longer impaired from exercising the rights they've had all along.
You can but, should at any time you choose to rescind that contract, the Constitution protects you because you still have those rights.
And yet, I can still recover damages from you for having breached the contract.
But, Constitutionally, I should be allowed to demand a new trial within my rights and they should be required, Constitutionally, to proove their case with my past testimoney weighed against my current silence taking into account any duress that may have been placed on me in the circumstances of my past testimony.
After your conviction, you've had your trial, and you're done. In fact, additional trials are precluded by double jeopardy.
Also, silence persuant to the 5th Amendment is not taken into consideration. If it were, the failure to testify on one's own behalf would almost certainly be taken as a sign of guilt.
So it seems as though your fantasy world has a remarkable constitution, quite different from anything real.
In the real world, assignment is a practice as old as copyright itself, endorsed by every authority in our legal tradition, and pretty clearly in full compliance with the Constitution.
You may dislike it, but you delude yourself, and mislead others to say anything more than that you -- apparently unreasonably -- dislike it.
I listed several examples of how people might waive or contract away that which is protected by the Constitution.
;)
If I can contract away my right to speak about some specific thing, how is that materially different from contracting away my a copyright to a specific work?
This is covered by search and seizure without a warrant.
And? If you consent to the search, no warrant is needed.
Constitutionally you can't waive [the rights against self-incrimination, counsel, trial, or jury]. I know.
Sure you can. Go get arrested for something, admit to the police that you did it (waiving your right against self incrimination), tell them you don't want a lawyer, and plead guilty, which avoids a trial (or plead innocent, but waive a jury, which will give you a bench trial in which the judge is the factfinder instead of the jury).
This is all everyday stuff.
People like you have managed to funnel enough money to politicians and Supreme Court Justices to encourage them to look the other way when such abuses happen.
For 295 years?
You're a self-admitted lawyer.
I'm not self-admitted. I was admitted by the Supreme Judicial Court of the Commonwealth of Massachusetts.
Their word was given under terms of a contract which was unconstitutional. The contract is null and void in the eyes of the government.
A proposition which you haven't shown any support for, and which centuries of practice seem to rebut.
The house was legally bought and sold. If I sell my idea to a company, they legally bought it and I legally sold it but they do not have the right to keep me from using that idea to benefit someone else.
They do if you gave them that right. Which is what happens in an assignment.
The Constitution does not recognize your right to sign away your right to free speech, or freedom of religion, or any other rights which citizens entail.
So you're saying that I cannot lawfully sign an NDA? That if the police come to my door, have no warrant, and ask to conduct a search, that I cannot choose to let them in? That I cannot choose to testify against myself in court? That I cannot waive trial, or counsel, or jury?
Given that the world obviously isn't like that, don't you think that maybe you're wrong?
Most of what you're looking at are not rights granted by the Constitution, but rather rights guaranteed by the Constitution. The promise that the government will allow you to conduct your own affairs as you like, and will behave in certain ways, doesn't constrain you. The government cannot force you to speak or be silent, but you can of course choose either, and make agreements to that effect.
Some things aren't waivable, e.g. the 13th Amendment, but this is attributable to the way that they're written, not some universal principle.
Current laws regarding intellectual property take away the ability of the author or inventor to bargain by locking them into a one-time decision when it should allow the author or inventor the freedom to say,"Sorry. Your company sucks. I'm taking my ideas and going elsewhere."
So you're saying that in fact they can bargain. What you're upset about is a perception that artists can't go back on their word.
So... ten years after you sell your house, do you think that you ought to be able to march in and take it back? To say "Sorry, but it was a crappy deal, and I'm taking back my house and selling it to someone else."
Contract law is all about making promises binding. That's the idea. Sorry if you don't like it, but maybe you should be more careful in the future.
The Act's main purpose is to facilitate personal uses -- which are not coextensive with fair uses -- only where money is paid out and DRM is instituted.
Fair use permits any fair use, by anyone, for any purpose, without payment, and without DRM.
I think they're pretty different.
Also AHRA merely makes certain infringements nonactionable, which more restrictive than fair use, which makes certain otherwise infringing conduct non-infringing.