Setting aside that your logic is really flawed in light of what the law authoritatively says must be proved to make out a prima facie case, you might find this essay enlightening.
The Constitution calls for reserving the rights to authors and inventors. Current copyright law isn't really doing that if it's allowing the industry to strongarm the artists into assigning the rights through a contract.
No, the law is doing its job. Just because artists are willing to give away their rights doesn't mean that the rights didn't vest in them initially. In fact, it means that the rights must have done so, or else there'd be nothing to transfer.
The Constitution doesn't say a word about whether rights must remain with artists for their duration, and in fact every single copyright law in our history, including English ones that guided the framers, and the first federal one, allowed for copyrights to be assigned.
People have unequal bargaining positions. That's a fact of life. Taking away their ability to bargain doesn't help much.
No, the case held that it was not within the bounds of the AHRA. This is important, since if computers and mp3 players did fall within it, a) they'd have to implement DRM, and b) money would be owed to the record industry.
The court said in dicta in that case, however, that space shifting was probably a fair use.
If what you are asking is how to prevent other people from covering your songs, the basic answer is that you cannot prevent them from doing so. There is a compulsory license in 17 USC 115, which permits other people to make and sell records of a recording of them, performing your music and lyrics.
Oh, and all those people talking about envelopes and such are just morons. They have no idea what the hell they're talking about.
You know, for someone that's trying to quote from the decision, you're doing an outstandingly craptastic job of it.
What the Court said was:
Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes.
Indeed, it need merely be capable of substantial noninfringing uses.
The question is thus whether the Betamax is capable of commercially significant noninfringing uses. In order to resolve that question, we need not explore all the different potential uses of the machine and determine whether or not they would constitute infringement. Rather, we need only consider whether on the basis of the facts as found by the District Court a significant number of them would be noninfringing.
Sony v. Universal, 464 US 417, 442 (1984) (emphasis mine).
"Potential" is the key word here. It means, in conjunction with the significance requirement, that it is okay if there are no current significant noninfringing uses so long as the technology could be used in such a way. It doesn't matter whether it is now, or even whether it's likely to be in the future. Only potential, regardless of realization, is required.
Since people could stop using P2P in an infringing manner tomorrow, and start using it in a lawful manner, even if it's unlikely, the Sony test is satisifed.
Do you wish to try and fail miserably again, or have I intellectually beaten you into submission?
I like the idea of patenting inventions alright (I myself have some designs I would like to patent), but I would dearly like to see patents for things that would make one go "Wow! I would never have thought to do it that way" or "Damn! She must've spent months coming up with that design".
That is the nonobviousness requirement, more or less. Basically, to be patentable, an invention must not have been obvious to a person having ordinary skill in the art, at the time it was made. Obviously, inventions that are obvious in hindsight might still be patentable.
Oh, and the degree of labor is irrelevant; who actually cares if someone comes up with an invention after months or years of labor, or in a single flash of insight?
Also, patenet claims SHOULD also include proof that the design wasn't come upon independently and without using any of the claimers work. Patents are supposed to protect against unfair use of one's hard work and effort. If it's their own, it doesn't matter which came first.
This is completely wrong. It doesn't matter whether someone independently invents something; it can still infringe. Patents are broad that way. Plus, given that they're all disclosed in publicly viewable records, it's not the fault of the inventor if you didn't look through them to see what had been invented and patented already.
It doesn't have to be. In the Betamax case, the Supreme Court said that technology need only have potential substantial noninfringing uses for the developer to avoid contributory liability.
This serves two purposes: First, it allows the developer and the world time to figure out what the technology is good for. P2P networks are copyright neutral -- anything can go over the network. Thus, copyright holders can take advantage of it as well. Second, it prevents copyright holders -- really a subset of them, in fact (even back in '84, some were in favor of the Betamax) -- to extend their copyright on a specific work to what would effectively be a patent on a technology.
Grokster has won in the lower courts because their case is a slam dunk for Betamax. The only way that they can lose is if Betamax gets overturned.
The only difference between Austria and Australia is that the latter has an 'al' in it. And frankly, I'm not sure I want to watch a public access show called 'Down Under' that features someone named Al.
Man, where have you been? The Second Circuit pretty much settled this ages ago. The case you want is this: Matthew Bender & Co. v. West Publ. Co., 158 F.3d 693 (2d Cir. 1998).
There was a prior 8th Circuit case to the contrary, but Feist pretty much killed it. IIRC, it hasn't been seriously reexamined since in light of the incredible difficulty of claiming that page numbering is original, and the strong public policy and due process arguments.
Nothing, AFAICT. The situation is as it always has been: pirates cannot possibly obtain a lower marginal cost than what is available to copyright holders, and often as not will have greater marginal costs.
Piratical reproduction and distribution has never been cheaper than the reproduction and distribution methods available to legitimate creators - but they don't have to invest the time and money in the creation of the content. They just have to deal with the copying and distribution, and that's how they make their profit - they never had to sink the capital investment in for the content creation.
And evidently we agree. What this means though is that nothing is any different than it ever has been. Pirates a century ago avoided some fixed costs just as they do now, and at most could only tie as to marginal costs.
The fact that marginal costs have decreased for many works -- though not all -- doesn't change this.
However, what value is lost in a CD I duplicated from one that was pressed by Sony Music? There is no difference in quality, particularly if we're not talking about the booklet and assorted materials, but just the CD. Throw in a color photocopier and some good paper, and there's no difference even with the booklet. Now, it costs a pirate or Sony only a dollar for that CD, with jewelbox, booklet, etc., when creating mass quantities. However, Sony also has to pay the artist, the studio, the assorted other people, and requires a retail price far in excess of that dollar, while every bit the pirate charges above that is profit for him. That's where the difference is.
First, going back to 'Baudot: News for Electro-Radio Enthusiasts, Matters of Import' from 1905:
However, what value is lost in a Piano Roll I duplicated from one that was printed by QRS? There is no difference in quality, particularly if we're not talking about the booklet and assorted materials, but just the Piano Roll. Throw in a color lithographic press and some good paper, and there's no difference even with the booklet. Now, it costs a pirate or QRS only a dollar for that Piano Roll, with box, booklet, etc., when creating mass quantities. However, QRS also has to pay the artist, the studio, the assorted other people, and requires a retail price far in excess of that dollar, while every bit the pirate charges above that is profit for him.
Second, you've changed what you're talking about. What you said earlier about a difference was this:
[P]rior to 1710, there were two major differences: works cost signifigant capital investments even to copy (copy a pre-printing press novel? Sure, if you've got a team of monks).... Those situations do not exist today - copying a work is trivial and almost free....
And it looks like we agree that there is no difference regarding the overall situation as to marginal cost whether it was in the copyright era or before.
The other difference you identified was merely that authors used to obtain funds for their fixed costs from sources other than those which are common today, but this doesn't mean that there are no sources of funding other than those which are dependant on copyright, as we've already covered.
At this point I'd like to note that I'm not opposed to the idea of copyright, though I loathe the present implementation and the myths surrounding it. But copyright's certainly not necessary. It's just useful.
By way of analogy, it's possible to have an existence of hunting and gathering. In a reasonably hospitable place, you could live reasonably comfortably for little work. Or you could invest more labor, capital, etc. to farm land and gain a greater bounty for your hard work.
There's nothing inherently better about either situation: instead, you should carefully determine which one offers the best results in one's situation and pursue that. It can vary based upon outside considerations.
Well, if we waited around for absolute certainty all the time, nothing would ever get done.
Thus, in law, things can be proven without being absolutely proven. If something is simply more likely than not, that's often good enough and treated as being true. In estimating damages, basically each side gets appraisals (which to a certain degree are rooted in the expert opinion of people who have done a lot of appraisals before) and the ultimate question gets kicked back to a jury, which can make any decision it likes so long as it's not unreasonable.
It's not math, where we can definitively prove some things. But for all the fuzzy language and practices, it all basically works, and there's a significant appeals process just in case.
how can a creator exploit their work commercially if their work can be freely copied?
On an equal basis with everyone else. There are many many editions of Shakespeare. It's in the public domain, and always has been, but that's never stopped people from apparently making a profit from printing up yet another edition.
Don't underestimate first mover advantages.
Or the fact that unless something is highly successful, no one's likely to bother reproducing it anyway.
Or that there is an irreproducible cachet to having something created by the original author; a poster of a Van Gogh is worth but the tiniest fraction of a canvas that Van Gogh himself painted on.
You can duplicate a CD for much less than an RIAA member can create one.
The costs to RIAA to stamp out a single CD are lower than the cost to me to burn one. And the costs to RIAA to make a new album are also probably lower than it would be for me to make an original album. And you can't compare marginal cost and fixed costs, since that's apples and oranges.
How many computer software projects does the NEA fund?
NEA is just one example. Many different branches of the government sponsor software development. ARPA funded the creation of the ARPANet, the predecessor to the Internet. The National Science Foundation more or less administered it for ages.
You misunderstand me - take away copyright, and you need to be wealthy to create those works of arts (or have patronage). Not own them, but create them (and keep in mind we're talking digital media - movies, albums, digital books). Since an artist can expect no money from distribution rights, and they have no tangible product, they can expect no money, period, other than what is gifted to them.
I hate to break it to you, but 99.44% of artists will never see a dime attributable to copyright. This does not stop them from creating their works. They have no realistic expectation of distribution rights, and yet they go at it anyway.
And incidentally, all books are digital, whether machine readable or not. Unless you found a continuum of letters between A and B or something.
The lessons from centuries ago do not apply because piracy was neither cheap nor easy.
Bzt. Wrong.
Piratical reproduction and distribution has always, always, been no cheaper or easier than the reproduction and distribution methods available to the author.
How could it be otherwise? There's nothing in the world that prevented Chaucer from hiring the same scriveners that third parties would hire to copy his books. There's nothing in the world that prevented Shakespeare from taking his book to the exact same printer that might have instead made copies without asking him (and some of those copies survived, and are pretty funny to read).
Even now, there are copyright holders that are using the latest techniques to get their works out there. Don't some computer games and many many linux distros use BT as a distribution system?
It's not as though people can fire up super-BT and pirate them any faster.
And as already noted, due to economies of scale, due to being johnny-come-latelys, pirates usually lag behind authors.
works cost signifigant capital investments even to copy (copy a pre-printing press novel? Sure, if you've got a team of monks)
But there was no difference between the resources available to creators and reproducers. It's not as though Chaucer gained any advantage by having to have scriveners make copies for him over third parties who would do the same.
In fact, usually, authors have the advantage if they plan to exploit their work commercially, since they'll try to take advantage of economies of scale. Even today, I cannot make a CD for as low a marginal cost as an RIAA member can. Ditto for DVDs (particularly DL DVDs). Or hardback or paperback books. Or sculptures (does HP even make a MarbleJet printer?), or pretty much anything, really.
So this is really not an issue.
artists were either rich already (the elite had both the money and time to create works of art and literature) or they were subsidized by wealthy patrons (Mozart et al). Those situations do not exist today... patronage is long gone.
Patronage is alive and well. What do you think the NEA is? Or pretty much any sort of publicly funded arts project, or requirement that new construction involve a part of the budget dedicated to art.
Plus people commission works all the time -- people routinely hire people to take wedding photos, for example, but there's no market for other people's wedding photos.
If you go to any art show, you'll find that most artists are creating a very small number of copies of a particular work. Their customers are paying for the personally-made copies, basically. Copies, and the service of making copies, remain marketable even in the absence of copyright.
Plus, who needs to be wealthy? I own probably a half dozen paintings of others (only been collecting for a little while) and I'm far from wealthy. Truly wealthy people can afford a shitload of art.
But how many recorded works would be made? Keep in mind that there were none prior to 1710.
Are you really claiming that the lack of sound and video recordings made prior to 1710 is attributable to a lack of copyright?
Also, most literature would disappear, if books could be freely copied without copyright limitations.
Books have existed since several thousand years ago through 1710 (and later in countries that didn't adopt copyright until later) which kind of disproves your thesis. And they were pirated like crazy. Didn't stop authors. In fact, authorship increased with the advent of the press, because it cost less to be one.
Meh. Is it that important? I mean, special effects can hardly compare to finding a convenient planet, terraforming it to correspond to Middle Earth, genetically engineering actual orcs, elfs, ents, and so forth, building the various structures, providing sufficient technology to replicate the magic in the series, etc.
That would be pretty neat, but it would cost an unimaginable amount.
Frankly, I can be pretty happy watching good, but low budget movies, as I can be watching good, big budget movies. Crappy movies remain crappy no matter how much money you throw at them.
Plus the cost of special effects continues to drop all the time. The LoTR movies, for a given level of quality, could certainly be made less expensively now than they were at the time. And would've cost far more a few years before they were made.
In a few decades, it'll probably be something that a home computer can do in realtime. (Anyone ever see that movie "Tron," and then play the more recent "Tron 2.0" video game?)
Some of it would. After all, copyright didn't exist prior to 1710 anywhere, and in most of the world not until the 19th and 20th centuries.
Yet many works were created, often with significant capital investments. You can still commission artists to create things, they can still make money from works in ways that don't require copyright to protect (e.g. charging admittance to a theater to see a play), etc. Plus some artists just like to create art and might accept losses for it. Fame or the reward of having done it, etc. is enough.
So there might be a significant reduction in creation, but it wouldn't drop to zero. I don't even think it would be all that close to zero.
Since it's possible to create quality works without great capital investment, especially as technology progresses, I think people would still generally be pretty happy.
DRM is extremely hostile towards the public. Copyright is a creation of government, and is limited in scope and duration: copyright doesn't extend to, and doesn't restrict use, private performances and displays, fair uses, etc. It only covers the specific actions enumerated in the statute. It expires, and it's subject to various exceptions.
DRM goes beyond this, and attempts to create a paracopyright that is much broader than real copyright, and which lasts forever. This is unacceptable.
In fact, not only do I not accept effectively DRMed works and I generally avoid them altogether, but I think that the law should be amended so that whenever a copyright holder publishes or publicly performs or displays a copy of a work encumbered with DRM, or authorizes the same by a licensee, the copyright should become void.
As for such copies, since the work would be public domain, the government might help fund attacks on the DRM much as they fund libraries, archeology, etc. in the name of bringing information into the public realm.
This will require copyright holders to either avoid DRM like the plague, or to rely on it alone, and forfeit legal protections, in which case it'd need to be very effective indeed.
It's annoying, but hardly impossible. You first get damages in the amount of the profits that the other guy unfairly made by using your mark; this is done by arguing over his financial statements and hashing out what's attributable, what his costs were, etc. Then you get the damages he caused to your own goodwill, i.e. business reputation, which you prove by showing losses that are attributable to it (e.g. losses due to customers going elsewhere, losses due to diminished opportunities to license, etc.) Costs of corrective advertising may be recouped. Fees and costs of the litigation may be claimed.
But really all this is secondary. In trademark cases, the relief you mostly want is injunctive -- you want infringers to stop using your mark. Once they stop, then you start to look towards damages.
Well, zero statutory damages are only available in rare cases. Check out 17 USC 504(c)(2). Plus, that doesn't absolve those infringers of liability, only statutory damages. 502 injunctive relief is still possible; 503 impounding and destruction are still available; 505 costs and fees are still available; and 504 actual damages and profits are available in place of statutory damages at the plaintiff's option.
So there's still liability, and there's still plenty of remedies. Only one remedy -- in extremely rare cases -- might not be available.
As for failure to provide notice, I kind of doubt that that's going to be seen as unclean hands sufficient to deny a plaintiff equity. Could be it's happened before, but that's not quite what's normally meant.
Actually patents don't have to be either. And while trademarks actually don't _need_ to be strictly policed, the minimum amount of policing that is needed is not well defined, so people err on the side of caution.
Also failure to provide notice won't exempt violators from liability, but will have a potential effect on the amount of damages recoverable.
So the question then becomes whether such a distribution is sufficient to have the movies in question declared to be in the public domain.... Thoughts?
Why the hell would it do that? Do you live in the pre-1978 era or something?
A prima facie case of trademark infringement only requires that the plaintiff show that the mark is owned by the plaintiff, and that the defendant's use of the mark is likely to cause confusion among the relevant sector of the public as to the source of the marked goods.
I think it would be really easy for Hasbro to accomplish this. There is of course an ever-present danger that people are mistaking scrabble as being the name of the game, rather than the name of Hasbro's version of the game, but making the proper showing is a pain in the ass and might not even be useful, ultimately.
Damages are great, but they're hardly indispensible.
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For the thousandth time: Copyright regulates *distribution*. It simply doesn't apply to making a copy for my own use.
For the thousandth time, you're wrong.
There are numerous exclusive rights compromising copyright. One is distribution, but reproduction is another. Read 17 USC 106.
Setting aside that your logic is really flawed in light of what the law authoritatively says must be proved to make out a prima facie case, you might find this essay enlightening.
The Constitution calls for reserving the rights to authors and inventors. Current copyright law isn't really doing that if it's allowing the industry to strongarm the artists into assigning the rights through a contract.
No, the law is doing its job. Just because artists are willing to give away their rights doesn't mean that the rights didn't vest in them initially. In fact, it means that the rights must have done so, or else there'd be nothing to transfer.
The Constitution doesn't say a word about whether rights must remain with artists for their duration, and in fact every single copyright law in our history, including English ones that guided the framers, and the first federal one, allowed for copyrights to be assigned.
People have unequal bargaining positions. That's a fact of life. Taking away their ability to bargain doesn't help much.
No, the case held that it was not within the bounds of the AHRA. This is important, since if computers and mp3 players did fall within it, a) they'd have to implement DRM, and b) money would be owed to the record industry.
The court said in dicta in that case, however, that space shifting was probably a fair use.
If what you are asking is how to prevent other people from covering your songs, the basic answer is that you cannot prevent them from doing so. There is a compulsory license in 17 USC 115, which permits other people to make and sell records of a recording of them, performing your music and lyrics.
Oh, and all those people talking about envelopes and such are just morons. They have no idea what the hell they're talking about.
What the Court said was:
Sony v. Universal, 464 US 417, 442 (1984) (emphasis mine).
"Potential" is the key word here. It means, in conjunction with the significance requirement, that it is okay if there are no current significant noninfringing uses so long as the technology could be used in such a way. It doesn't matter whether it is now, or even whether it's likely to be in the future. Only potential, regardless of realization, is required.
Since people could stop using P2P in an infringing manner tomorrow, and start using it in a lawful manner, even if it's unlikely, the Sony test is satisifed.
Do you wish to try and fail miserably again, or have I intellectually beaten you into submission?
8-10 years?
A JD is typically acquired in 3 years. I got mine in 2 1/2 by going to summer school. Some people take night classes and get their degrees in 4 years.
I'd probably be a bit afraid of someone who worked 8-10 years on their JD. (Frankly, that's a long time for a JD, LLM, and SJD together!)
I like the idea of patenting inventions alright (I myself have some designs I would like to patent), but I would dearly like to see patents for things that would make one go "Wow! I would never have thought to do it that way" or "Damn! She must've spent months coming up with that design".
That is the nonobviousness requirement, more or less. Basically, to be patentable, an invention must not have been obvious to a person having ordinary skill in the art, at the time it was made. Obviously, inventions that are obvious in hindsight might still be patentable.
Oh, and the degree of labor is irrelevant; who actually cares if someone comes up with an invention after months or years of labor, or in a single flash of insight?
Also, patenet claims SHOULD also include proof that the design wasn't come upon independently and without using any of the claimers work. Patents are supposed to protect against unfair use of one's hard work and effort. If it's their own, it doesn't matter which came first.
This is completely wrong. It doesn't matter whether someone independently invents something; it can still infringe. Patents are broad that way. Plus, given that they're all disclosed in publicly viewable records, it's not the fault of the inventor if you didn't look through them to see what had been invented and patented already.
It doesn't have to be. In the Betamax case, the Supreme Court said that technology need only have potential substantial noninfringing uses for the developer to avoid contributory liability.
This serves two purposes: First, it allows the developer and the world time to figure out what the technology is good for. P2P networks are copyright neutral -- anything can go over the network. Thus, copyright holders can take advantage of it as well. Second, it prevents copyright holders -- really a subset of them, in fact (even back in '84, some were in favor of the Betamax) -- to extend their copyright on a specific work to what would effectively be a patent on a technology.
Grokster has won in the lower courts because their case is a slam dunk for Betamax. The only way that they can lose is if Betamax gets overturned.
The only difference between Austria and Australia is that the latter has an 'al' in it. And frankly, I'm not sure I want to watch a public access show called 'Down Under' that features someone named Al.
Man, where have you been? The Second Circuit pretty much settled this ages ago. The case you want is this: Matthew Bender & Co. v. West Publ. Co., 158 F.3d 693 (2d Cir. 1998).
There was a prior 8th Circuit case to the contrary, but Feist pretty much killed it. IIRC, it hasn't been seriously reexamined since in light of the incredible difficulty of claiming that page numbering is original, and the strong public policy and due process arguments.
What are you misunderstanding about this?
Nothing, AFAICT. The situation is as it always has been: pirates cannot possibly obtain a lower marginal cost than what is available to copyright holders, and often as not will have greater marginal costs.
Piratical reproduction and distribution has never been cheaper than the reproduction and distribution methods available to legitimate creators - but they don't have to invest the time and money in the creation of the content. They just have to deal with the copying and distribution, and that's how they make their profit - they never had to sink the capital investment in for the content creation.
And evidently we agree. What this means though is that nothing is any different than it ever has been. Pirates a century ago avoided some fixed costs just as they do now, and at most could only tie as to marginal costs.
The fact that marginal costs have decreased for many works -- though not all -- doesn't change this.
However, what value is lost in a CD I duplicated from one that was pressed by Sony Music? There is no difference in quality, particularly if we're not talking about the booklet and assorted materials, but just the CD. Throw in a color photocopier and some good paper, and there's no difference even with the booklet. Now, it costs a pirate or Sony only a dollar for that CD, with jewelbox, booklet, etc., when creating mass quantities. However, Sony also has to pay the artist, the studio, the assorted other people, and requires a retail price far in excess of that dollar, while every bit the pirate charges above that is profit for him. That's where the difference is.
First, going back to 'Baudot: News for Electro-Radio Enthusiasts, Matters of Import' from 1905:
However, what value is lost in a Piano Roll I duplicated from one that was printed by QRS? There is no difference in quality, particularly if we're not talking about the booklet and assorted materials, but just the Piano Roll. Throw in a color lithographic press and some good paper, and there's no difference even with the booklet. Now, it costs a pirate or QRS only a dollar for that Piano Roll, with box, booklet, etc., when creating mass quantities. However, QRS also has to pay the artist, the studio, the assorted other people, and requires a retail price far in excess of that dollar, while every bit the pirate charges above that is profit for him.
Second, you've changed what you're talking about. What you said earlier about a difference was this:
[P]rior to 1710, there were two major differences: works cost signifigant capital investments even to copy (copy a pre-printing press novel? Sure, if you've got a team of monks).... Those situations do not exist today - copying a work is trivial and almost free....
And it looks like we agree that there is no difference regarding the overall situation as to marginal cost whether it was in the copyright era or before.
The other difference you identified was merely that authors used to obtain funds for their fixed costs from sources other than those which are common today, but this doesn't mean that there are no sources of funding other than those which are dependant on copyright, as we've already covered.
At this point I'd like to note that I'm not opposed to the idea of copyright, though I loathe the present implementation and the myths surrounding it. But copyright's certainly not necessary. It's just useful.
By way of analogy, it's possible to have an existence of hunting and gathering. In a reasonably hospitable place, you could live reasonably comfortably for little work. Or you could invest more labor, capital, etc. to farm land and gain a greater bounty for your hard work.
There's nothing inherently better about either situation: instead, you should carefully determine which one offers the best results in one's situation and pursue that. It can vary based upon outside considerations.
Well, if we waited around for absolute certainty all the time, nothing would ever get done.
Thus, in law, things can be proven without being absolutely proven. If something is simply more likely than not, that's often good enough and treated as being true. In estimating damages, basically each side gets appraisals (which to a certain degree are rooted in the expert opinion of people who have done a lot of appraisals before) and the ultimate question gets kicked back to a jury, which can make any decision it likes so long as it's not unreasonable.
It's not math, where we can definitively prove some things. But for all the fuzzy language and practices, it all basically works, and there's a significant appeals process just in case.
how can a creator exploit their work commercially if their work can be freely copied?
On an equal basis with everyone else. There are many many editions of Shakespeare. It's in the public domain, and always has been, but that's never stopped people from apparently making a profit from printing up yet another edition.
Don't underestimate first mover advantages.
Or the fact that unless something is highly successful, no one's likely to bother reproducing it anyway.
Or that there is an irreproducible cachet to having something created by the original author; a poster of a Van Gogh is worth but the tiniest fraction of a canvas that Van Gogh himself painted on.
You can duplicate a CD for much less than an RIAA member can create one.
The costs to RIAA to stamp out a single CD are lower than the cost to me to burn one. And the costs to RIAA to make a new album are also probably lower than it would be for me to make an original album. And you can't compare marginal cost and fixed costs, since that's apples and oranges.
How many computer software projects does the NEA fund?
NEA is just one example. Many different branches of the government sponsor software development. ARPA funded the creation of the ARPANet, the predecessor to the Internet. The National Science Foundation more or less administered it for ages.
You misunderstand me - take away copyright, and you need to be wealthy to create those works of arts (or have patronage). Not own them, but create them (and keep in mind we're talking digital media - movies, albums, digital books). Since an artist can expect no money from distribution rights, and they have no tangible product, they can expect no money, period, other than what is gifted to them.
I hate to break it to you, but 99.44% of artists will never see a dime attributable to copyright. This does not stop them from creating their works. They have no realistic expectation of distribution rights, and yet they go at it anyway.
And incidentally, all books are digital, whether machine readable or not. Unless you found a continuum of letters between A and B or something.
The lessons from centuries ago do not apply because piracy was neither cheap nor easy.
Bzt. Wrong.
Piratical reproduction and distribution has always, always, been no cheaper or easier than the reproduction and distribution methods available to the author.
How could it be otherwise? There's nothing in the world that prevented Chaucer from hiring the same scriveners that third parties would hire to copy his books. There's nothing in the world that prevented Shakespeare from taking his book to the exact same printer that might have instead made copies without asking him (and some of those copies survived, and are pretty funny to read).
Even now, there are copyright holders that are using the latest techniques to get their works out there. Don't some computer games and many many linux distros use BT as a distribution system?
It's not as though people can fire up super-BT and pirate them any faster.
And as already noted, due to economies of scale, due to being johnny-come-latelys, pirates usually lag behind authors.
works cost signifigant capital investments even to copy (copy a pre-printing press novel? Sure, if you've got a team of monks)
... patronage is long gone.
But there was no difference between the resources available to creators and reproducers. It's not as though Chaucer gained any advantage by having to have scriveners make copies for him over third parties who would do the same.
In fact, usually, authors have the advantage if they plan to exploit their work commercially, since they'll try to take advantage of economies of scale. Even today, I cannot make a CD for as low a marginal cost as an RIAA member can. Ditto for DVDs (particularly DL DVDs). Or hardback or paperback books. Or sculptures (does HP even make a MarbleJet printer?), or pretty much anything, really.
So this is really not an issue.
artists were either rich already (the elite had both the money and time to create works of art and literature) or they were subsidized by wealthy patrons (Mozart et al). Those situations do not exist today
Patronage is alive and well. What do you think the NEA is? Or pretty much any sort of publicly funded arts project, or requirement that new construction involve a part of the budget dedicated to art.
Plus people commission works all the time -- people routinely hire people to take wedding photos, for example, but there's no market for other people's wedding photos.
If you go to any art show, you'll find that most artists are creating a very small number of copies of a particular work. Their customers are paying for the personally-made copies, basically. Copies, and the service of making copies, remain marketable even in the absence of copyright.
Plus, who needs to be wealthy? I own probably a half dozen paintings of others (only been collecting for a little while) and I'm far from wealthy. Truly wealthy people can afford a shitload of art.
But how many recorded works would be made? Keep in mind that there were none prior to 1710.
Are you really claiming that the lack of sound and video recordings made prior to 1710 is attributable to a lack of copyright?
Also, most literature would disappear, if books could be freely copied without copyright limitations.
Books have existed since several thousand years ago through 1710 (and later in countries that didn't adopt copyright until later) which kind of disproves your thesis. And they were pirated like crazy. Didn't stop authors. In fact, authorship increased with the advent of the press, because it cost less to be one.
Meh. Is it that important? I mean, special effects can hardly compare to finding a convenient planet, terraforming it to correspond to Middle Earth, genetically engineering actual orcs, elfs, ents, and so forth, building the various structures, providing sufficient technology to replicate the magic in the series, etc.
That would be pretty neat, but it would cost an unimaginable amount.
Frankly, I can be pretty happy watching good, but low budget movies, as I can be watching good, big budget movies. Crappy movies remain crappy no matter how much money you throw at them.
Plus the cost of special effects continues to drop all the time. The LoTR movies, for a given level of quality, could certainly be made less expensively now than they were at the time. And would've cost far more a few years before they were made.
In a few decades, it'll probably be something that a home computer can do in realtime. (Anyone ever see that movie "Tron," and then play the more recent "Tron 2.0" video game?)
Some of it would. After all, copyright didn't exist prior to 1710 anywhere, and in most of the world not until the 19th and 20th centuries.
Yet many works were created, often with significant capital investments. You can still commission artists to create things, they can still make money from works in ways that don't require copyright to protect (e.g. charging admittance to a theater to see a play), etc. Plus some artists just like to create art and might accept losses for it. Fame or the reward of having done it, etc. is enough.
So there might be a significant reduction in creation, but it wouldn't drop to zero. I don't even think it would be all that close to zero.
Since it's possible to create quality works without great capital investment, especially as technology progresses, I think people would still generally be pretty happy.
DRM is extremely hostile towards the public. Copyright is a creation of government, and is limited in scope and duration: copyright doesn't extend to, and doesn't restrict use, private performances and displays, fair uses, etc. It only covers the specific actions enumerated in the statute. It expires, and it's subject to various exceptions.
DRM goes beyond this, and attempts to create a paracopyright that is much broader than real copyright, and which lasts forever. This is unacceptable.
In fact, not only do I not accept effectively DRMed works and I generally avoid them altogether, but I think that the law should be amended so that whenever a copyright holder publishes or publicly performs or displays a copy of a work encumbered with DRM, or authorizes the same by a licensee, the copyright should become void.
As for such copies, since the work would be public domain, the government might help fund attacks on the DRM much as they fund libraries, archeology, etc. in the name of bringing information into the public realm.
This will require copyright holders to either avoid DRM like the plague, or to rely on it alone, and forfeit legal protections, in which case it'd need to be very effective indeed.
It's annoying, but hardly impossible. You first get damages in the amount of the profits that the other guy unfairly made by using your mark; this is done by arguing over his financial statements and hashing out what's attributable, what his costs were, etc. Then you get the damages he caused to your own goodwill, i.e. business reputation, which you prove by showing losses that are attributable to it (e.g. losses due to customers going elsewhere, losses due to diminished opportunities to license, etc.) Costs of corrective advertising may be recouped. Fees and costs of the litigation may be claimed.
But really all this is secondary. In trademark cases, the relief you mostly want is injunctive -- you want infringers to stop using your mark. Once they stop, then you start to look towards damages.
Well, zero statutory damages are only available in rare cases. Check out 17 USC 504(c)(2). Plus, that doesn't absolve those infringers of liability, only statutory damages. 502 injunctive relief is still possible; 503 impounding and destruction are still available; 505 costs and fees are still available; and 504 actual damages and profits are available in place of statutory damages at the plaintiff's option.
So there's still liability, and there's still plenty of remedies. Only one remedy -- in extremely rare cases -- might not be available.
As for failure to provide notice, I kind of doubt that that's going to be seen as unclean hands sufficient to deny a plaintiff equity. Could be it's happened before, but that's not quite what's normally meant.
Actually patents don't have to be either. And while trademarks actually don't _need_ to be strictly policed, the minimum amount of policing that is needed is not well defined, so people err on the side of caution.
Also failure to provide notice won't exempt violators from liability, but will have a potential effect on the amount of damages recoverable.
IconDolt? Why would I want to use a program that was a dolt?
That's pretty bad, OK.
So the question then becomes whether such a distribution is sufficient to have the movies in question declared to be in the public domain.... Thoughts?
Why the hell would it do that? Do you live in the pre-1978 era or something?
Well, have you watched "Chinatown" at all?
you still have to prove damages, don't you?
No.
A prima facie case of trademark infringement only requires that the plaintiff show that the mark is owned by the plaintiff, and that the defendant's use of the mark is likely to cause confusion among the relevant sector of the public as to the source of the marked goods.
I think it would be really easy for Hasbro to accomplish this. There is of course an ever-present danger that people are mistaking scrabble as being the name of the game, rather than the name of Hasbro's version of the game, but making the proper showing is a pain in the ass and might not even be useful, ultimately.
Damages are great, but they're hardly indispensible.