Really? Why not? While it might be uncommon, I don't see why it's impossible. It's probably happened before.
Same thing for copying movies for personal use. In fact, I'll bet the big corporations would never want this to go to trial because there's a good chance a court will simply say "pfft...fair use. And why are you wasting the court's time over 10 DVDs?"
There is little chance of a finding of fair use unless downloading -- without uploading -- is done only as a substitute for self-ripping. And even then there is a whole other kettle of fish with the anticircumvention provisions.
Also the number of works really isn't important. Ten infringements is not a frivolous enough matter for the court to get upset with the plaintiff or to have grounds to do anything untorward. It might set low damages (c.f. nominal damages in tort cases) but that's about it.
So okay. If you want to talk about the letter of the law. Great. The letter of the law once said blacks have to stand on the back of the bus. The law was wrong, and it finally took a generation of judges who understood that kind of thinking would eventually destroy the country because ultimately, it couldn't be reconciled with common sense and morality.
I fear you are confusing my discussion as to what the law is with an endorsement for the law as it is. Let me be clear: I like the idea of copyright law. But I hate the copyright law that we have on the books. I think we need massive reform and extreme reductions in the scope of copyright across the board. I think that by scrapping oand replacing our copyright law with a much more modest one, we can better fulfill the purposes copyright is intended to serve, and improve the well being of the people of our country, including our authors.
But I'm not going to pretend that this has happened yet, if it ever will. In fact, I think it is key to make sure that people know just what the law is now so that they know just how bad the law is now and are truly motivated to change it to something better.
I hope disney goes first.
Meh. I think they've done some bad stuff, but I'm prepared to forgive it so long as we can simply repair the damage as best we're able and prevent further abuses.
I don't fault them for being greedy. I want them to be greedy, since that's essential to the proper functioning of copyright. It's just like how luring a donkey forward by dangling a carrot in front of it relies on his greed. No greed, no forward motion.
I just want to channel that greed in useful ways, instead of letting it run roughshod over all of us.
Actually, like most lawyers, you avoided answering his question.
Actually I am engaged in a discussion with him in the thread I linked to. I simply don't want to repeat it. This is easier when you only have one argument at a time, instead of the same one, at different stages, in parallel.
But that's not what he asked. He raised the point that copyright holders are a new class that probably don't meet the definition as laid down by the founders.
They're not new. They date back to the creation of copyright to begin with. All copyright statutes in our legal tradition dating back nearly 300 years provide for copyright holders other than authors.
But since I suspect that you are in fact the other poster -- since I simply cannot believe that there are two such stupendously stupid people on/. and that both of them have appeared on the same day in the same grouping of threads -- I will ask you to not post again here, but to instead post in the other thread where the argument (or smack down) is proceeding.
Neat trick, but i'll give you a hint... smart guys go into law. Brilliant guys go into computer science.
I have not found this to be the case. All kinds of people go into all kinds of professions. Certainly I know plenty of stupid computer scientists and brilliant lawyers, and also stupid lawyers and brilliant computer scientists.
And in case you're wondering, I have a nicer BMW than you too.
Probably. I have a 12 year old Ford. If I buy a new car (the current one is paid off) it'll probably be a Honda or something. I don't care about cars -- they only need to be cheap to own and operate, and to reliably get me where I need to go.
Since the Constitution says nothing about foreclosures, I guess that right is reserved to the states or the people.
I didn't say the federal government was the one legislating foreclosures. In fact, they don't. Federal copyright law envisions people being able to foreclose on the copyrights of copyright holders by operation of state law. Likewise, heirs can inherit copyrights by state intestacy law. And so forth.
You haven't even read the 9th and 10th.
Yes, I have.
There's a very clear delineation between the author or inventor in his cottage and the King George who seeks to buy him out and become the "copyright holder". If you can't see that then, at the risk of trolling, you're a fucking idiot.
The problem is that the author or inventor is the master of the assignment. You are saying that an author cannot assign his copyright as a gift to a friend. And that he cannot die and leave or will his copyright to his family. Etc.
Anyone who holds a copyright is a copyright holder, regardless of how he got it. The author is the first copyright holder, but anyone could be the later ones.
Longevity does not make it Constitutional.
True, but it raises a very large quantity of doubt in your unique reading.
Arguable.
No, courts pretty always find them to lack utility. This is chiefly owing to the utility doctrine, which precludes useful pictoral, graphic, and sculptural works from being copyrightable.
Some paintings might have utility but it's difficult to see a painting constituting a useful invention.
Pure conjecture.
No.
The best English dictionary ever is the Oxford English Dictionary. It not only defines words as used now, but provides definitions and examples of their use from throughout history. If you look up the word 'art' and look through the definitions to see what it would've meant in 1789 according to the books that were in print at that time (from which the definitions and examples are drawn), you'll see that I'm stating a fact. Hell, I looked it up just to check, when someone told me!
Any good university should have a copy. They're online too, but IIRC, it's not free. Or you can buy the 20 volume set from Amazon or other booksellers. I've had it on my wish list for years.
Where in the Constitution does it say that "arts refers only to technical arts"?
Where in the Constitution does it say that the country they call the United States of America is the one located on the North American continent. Maybe they meant a different one altogether!
It doesn't, because they didn't expect people to be such amazing idiots. They used words according to their meanings at the time. They didn't think they had to include a fucking dictionary that would start from first principles so that people could speak Constitutionese. English is one of those languages that changes a lot. It's the same reason why people have difficulty reading and understanding Shakespeare and why it's quite hard to read and understand Chaucer.
You haven't even touched the 9th and 10th Amendments yet.
Because they hold no relevance to this discussion. The power to permit transfers of copyright is a part of the federal copyright power either by itself or in conjunction with the necessary and proper clause (which you haven't touched). So long as it's a federal power, the 9th and 10th Amendments are not implicated.
And incidentally, while I can see the 10th amendment argument at least (since it is perfectly well established that the states have copyright powers too, to the degree they are not preempted by Congress based upon the supremecy clause et al), but I don't get your 9th amendment thing at all.
Not that it matters: you still haven't gotten anywhere with your attack on the federal power.
Section 117 of copyright laws says the owner of the copy has a right to make any copies they need to run it, and Peak was not the owner, but merely a contractor hired by the licensee.
Yes, and? MAI stands for the proposition that reproductions to RAM are infringing unless one of the previously mentioned factors applies.
You're saying that MAI's licensee had a factor going for it (it was authorized) but that Peak didn't (it wasn't authorized, 117 didn't shield it, 107 either didn't shield it or wasn't alleged, and the work was copyrighted).
If a console game is not licensed -- and I agree there -- then the owner of the game is EXACTLY the same boat as Peak was. One of these conditions needs to be satisfied, or running the game will result in infringement. Since all but the public domain condition seem to apply, the owner is all set. (the permission needn't be in a formal license, you know; it could be inferred from conduct, such as selling people the damn game)
Why are you arguing over something we seem to agree on?
(And EULAs are pretend licenses that won't hold up in court.)
States and localities, as per the 9th and 10th, are free to legislate on foreclosures.
Well, previously you said that the other operations of law by which a copyright can move from one person to another were unconstitutional. Foreclosure is one such operation of law. I'll leave you to reconcile your contradictions.
This isn't about "the left". It's about "the right".
Actually, 'left field' is a term from baseball, not politics. Here's the Webster's definition:
a state or position far from the mainstream (as of prevailing opinion) : a source of the unexpected or illogical
There is no corresponding idiom regarding right field.
I'm pretty worried about you now.
The language was meant to prevent another King George who could twist the law any way he wanted it, as you have done.
Yeah, I'm very tyrranical. The fact that Congress has 'twisted' this provision continuously in exactly the same way for the last 215 years, following in the tradition that would have been in the minds of the framers as they empowered Congress to act, and following in a tradition reaching back 295 years to the first copyright law -- this is all some big conspiracy is it? No chance that this longstanding interpretation could be accurate in any way as perhaps evidenced by how long it's gone unchallenged?
Authors and inventors. Artists are inventors of their art.
I'm sorry, you lose.
You have just claimed that artists are inventors, and as such deserve patents on their works. (which, incidentally, has never ever happened AFAIK)
According to the Constitution, we have patents to promote only the useful arts. Paintings have no utility as a rule. Nor are paintings a form of art -- since in 1789 when the Constitution was drafted, art referred to 'technical arts' as in 'state of the art technology.' It doesn't mean pretty things.
Do you mind keeping your (unfounded) arguments to the one thread only please? I'm already smacking you down quite nicely there. There's no need for repetition.
I know. It's one of those glaring problems with copyright law these days. Playing a Playstation game in a Playstation is infringing too unless one of several things apply: The game is in the public domain; permission is given (expressly or implicitly) to do so; 117 applies, or; 107 applies.
As a rule you can expect that the latter three apply for playing a console game on the console it's made for.
The permission angle is a little tougher with emulators, but we still have 117 and 107 and between them they basically cover it.
We don't need 'permission' to run computer programs.
I'm afraid you do. Unless you can run it without reproducing it, the reproduction is infringing unless any of the factors listed above apply. (or you hold the copyright of course, since you can't infringe against yourself) One of those is if the copyright holder has authorized you to reproduce it.
You should really read MAI v. Peak. (finding that running a program was illegal) And then maybe Intellectual Reserve v. Utah Lighthouse Ministry. (finding that looking at a web site was illegal)
I'm sorry, you're saying that foreclosures, for example, are unconstitutional? Exactly how far in left field are you, man?
It's outside the jurisdiction of the federal gov't as defined by the 9th and 10th Amendments.
Hm, and did you remember to take the necessary and proper clause into account?
However, according to the letter of the Constitution, you're still wrong.
Ah! There's the problem. You're being unreasonably literal. You're concerned with what the language literally is instead of what it actually means or even the purposes and ideals behind it.
We can have some fun with this. For example, an author is a person who writes text, and writings are textual in nature. Since the Constitution only refers to the writings of authors, would you claim that it does not permit for federal copyrights as to paintings of artists, or music of composers?
That's a novel argument, but I'm prepared to bet cash money that it would lose.
There has long been a distinction made between authors, who are the persons in which a copyright initially vests, and copyright holders (also known as proprietors) to whom the copyright later passes by assignment or operation of law.
The acts of the First Congress are often afforded special treatment because it is felt that, by virtue of being closer to the framing of the Constitution, its members had a noteworthy understanding and interpretation of it. They passed the Copyright Act of 1790, and it provides for assignment of copyright. Every copyright act since has as well. So it is highly likely that assignment is constitutional since we have always had it under the federal copyright power, from year one.
Furthermore, the Statute of Anne -- the first copyright law -- provides for assignment. The Continental Congress recognized assignment. And every single state that enacted a copyright law prior to the Constitution becoming effective provided for assignment.
So it's nice of you to weigh in, but to date no law in the American legal tradition dating all the way back to 1710 ever gives you even one iota of support for your premise that copyrights can only possibly be held by authors, and that non-authors (e.g. authors' heirs) can never hold them.
Furthermore, in light of Eldred, it's difficult to see that your argument would have any chance in hell of succeeding anytime soon. The courts, for some reason, are prepared to greatly defer to Congress regarding copyright matters. And since Congress likes letting non authors get copyrights, the courts will uniformly uphold the legislation enabling that as constitutional. And it's their interpretation of the constitution that matters in the end.
Want to try a better argument? One with a leg to stand on? I'm all ears.
First, statutory damages are calculated per work infringed. Not per infringement.
If I make one copy of a song, that's one infringement, worth up to $150k.
If I make one million copies of the song, that's one million infringements, worth up to $150k in sum.
But if I make one copy each of two songs, only then do I face a potential liability of up to $300k.
Second, it's not the maximum potential damage amount. It's only the potential maximum for statutory damages. Copyright holders can opt for statutory damages, but they don't have to. If they do not so opt, they instead will have damages based on the actual damages and profits per 17 USC 504(b). This is sometimes done, particularly for very deep pocketed infringers, but it is more work.
Doesn't have to be the entire thing, and it doesn't have to be there any longer than it takes to merely reproduce it further or let people directly or indirectly perceive it.
The leading case on reproducing to RAM being potentially infringing is MAI v. Peak. You might want to google for it and give it a read. It's kind of bizarre, but it is widely followed.
I'm not a lawyer, but its pretty clear that if I copy a disk from a someone at work, and keep it and watch it, I am not liable for $1.5M of damages.
If I download a movie from the internet, keep it, and watch it, I am not liable for $1.5M of damages
I agree. But only due to math.
17 USC 106: The copyright holder has an exclusive right to reproduce the work. Whether you reproduce the work in a new copy by means of duplicating a DVD or by means of downloading it, it's reproduction.
17 USC 501: Anyone who violates any of the exclusive rights of the copyright holder is an infringer.
17 USC 504: A copyright holder may sue an infringer for statutory damages. Statutory damages are awarded in an amount of the court's discretion between the amount of $700 - $30,000 per work infringed. If the copyright holder successfully proves that the infringement was willful, the court may award statutory damages in an amount of its discretion between $700 and $150,000.
Hence the math thing. Your example involves a likely liability of $150,000. The earlier poster talked about ten movies, so 10 x $150,000 = $1.5 million.
If you find the $150,000 figure doubtful, I encourage you to look at the actual law. I've provided cites to it. You could google for it in mere seconds. I hope that you will, if you have an open mind.
But you can hardly blame him for mocking lawyers.
Oh, I don't. I like a good lawyer joke as much as the next guy. Only he didn't tell one. He didn't mock lawyers. He basically claimed that I wasn't a lawyer, which is incorrect, and that I didn't know what I was talking about, which I think I've refuted in a fairly calm and 'noble' manner. It's not like I attacked him. I mentioned my qualifications, and I stated the law.
I don't mind being called names either. But if he's going to insult me, don't you think that he could have done it better by agreeing that I was a lawyer instead of saying that I'm not? E.g. wishing I was at the bottom of the sea or whatever?
I guess I just like a good, witty, quality insult. You ever see that movie "Roxanne," with Steve Martin?
But since you have to create a new copy in RAM in order to play it, you are in fact relying on 17 USC 117(a)(1). So it's certainly a section worth discussion.
Which just goes to show what is fundamentally wrong with society when something like THAT has to be spelled out;-)
What, the part about the public domain, or the part about my being a lawyer?
If the latter, it's not really anything wrong with society. It's that attorney-client relationships are very easy to have arise. When one does, it can be dangerous to the lawyer, not the client. The lawyer is bound by fiduciary duties, the duty of confidentiality, etc. This can happen even as to potential clients that don't end up becoming actual clients, since there has to be an intake interview to determine what the case is and whether the lawyer will take it; this involves confidential information and should remain so. So the disclaimer is to avoid this happening to me merely on the basis of a/. post.
Similarly, lawyers can practice only in jurisdictions where they're licensed to practice. I can only practice in MA. Some states may take a dim view of legal advice being dispensed on the Internet. I don't want to be in trouble for that either, though it seems quite remote, so the.sig hopefully shields me a bit there too.
It's really only something I do to protect myself, and to protect others so that they're not misled with regards to my posts, etc. You probably don't need to worry about it much. I don't see how it evidences a problem with society.
"Because they watch you get each one, and have evidence of that."
Except that they don't watch you "get" each one, they watch you "give" each one.
Depends on the nature of the P2P app, really. But fair enough.
Oh, they can monitor what I "get", but the crime of copying a work is much different and much less than the crime of what "give".
They are exactly equal.
So if I downloaded 10 movies, they can claim about $200 in damages.
No, if you download ten movies, and each movie is a single copyrighted work, they can claim $1.5 million of damages easily.
Please mr. "lawyer", stop pretending to know what the hell you're talking about.
First, there is no need for the quotes. I really am a lawyer, licensed to practice in Massachusetts. Second, I like to think that I know what I'm talking about, since I specialize in copyright law, have been reading it (often for pleasure) for years, and am currently well on my way to getting an LL.M. in IP at a law school well respected for IP studies, and I've been acing pretty much everything.
I tell you what. Come back with some citations to the relevant statutes and cases. If I'm wrong -- which I'm not -- I'll admit it and be better off for finding that out.
Note that nobody has EVER been prosecuted for downloading content
So? That doesn't mean that no one can be. Many suits have established that people who download copyrighted works without authorization are infringers. It is not subject to doubt at this point. Napster was taken down largely because downloading was found illegal. It's not alone.
And n.b. that criminal copyright prosecutions are comparatively rare. Civil suits (which are simply brought, not prosecuted) are quite common, however.
once you have a copy, you have it
Not really. Unlawfully made copies are often not eligible for exceptions (e.g. you cannot sell an unlawfully made copy because the first sale doctrine doesn't apply to it). And the regular exclusive rights still apply.
Downloading, meanwhile, is to make a new copy unlawfully. This makes you an infringer, and one of the panoply of remedies against infringers is confiscation and destruction of the unlawfully made copies. So you don't really get to keep it if you're caught.
The purpose behind it is because copyright holders are sympathetic figures, compared to infringers. Since it's hard for them to show their injuries, and since they lobby a lot, Congress decided they don't have to bother.
Also your example isn't that great since that can actually happen. Negligent persons are liable for damages arising out of their negligence, basically. If you negligently are in the road, and a car is damaged by hitting you when you're present there, you are liable for it. But since you likely were injured by the driver's negligence, and by a greater amount, what this translates into is a reduction in the amount of money you get from the other guy.
It's not unfair. (the old system of not allowing negligent persons to recover damages at all, that was unfair)
I don't think it's really appropriate to blame lawyers for this. In fact, let's have parades honoring lawyers! That's a good idea.
Because the law says that they can sue for a variety of remedies and that they never have to show that they're losing money in order to do so. In fact, even if an infringement made money for you somehow, you could still sue.
The answer to your question is at 17 USC 504, 505.
In general though, these suits are brought for the maximum amount of statutory damages. That means $150,000 per work infringed upon. So for a person who rips and scans a CD and puts it on their server, and the CD has, let's say 10 tracks, we could easily see 22 infringements -- the CD as a compilation, each song, each recording of each song, and the artwork. (This is a worst case sort of thing -- it could all be one big work just as easily)
So that's 22 x $150,000 = $3.3 million.
I remember a few years ago that some college students were being sued for billions of dollars.
Of course, the damage award could be lower, but it's still going to be pretty significant most of the time (the least you can normally expect is $700 per work) and the mere amount of the award doesn't mean you can pay it.
Since there's no point in trying to get blood from a stone, and since the cases are slam dunks as a rule, the RIAA and MPAA generally are very kind in agreeing to settle for a mere few thousand dollars.
I download movies but don't share that many because of hard drive space, I only share what I'm still downloading. Once it's done I typically burn it to CD and delete it from the PC, so while I have (insert large number) movies all they see is maybe the dozen I'm downloading. How successful will this be?
Because they watch you get each one, and have evidence of that. And they sue you, and have a discovery request requiring you to tell them and to produce the copies and your equipment so they can inspect it. And because they get a court order to impound the copies you made and go to your house with federal marshalls and take them away.
These suits are not being brought to make money. People don't have enough money to make this worthwhile.
Actually, the arguments the industries are making in the Grokster case, which goes to the Supreme Court in a couple months, are pretty much along the lines of that technologies that are used in conjunction with piracy should be banned or crippled so as to make them basically impossible to so use them.
Cheers.
No it isn't; this guy is screwing up his analysis.
on
All Emulation is Illegal
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· Score: 2, Informative
It all has to do with Title 17, Chapter 1, 117...
Warning sign one: No one gives a rat's ass about chapters in title 17. Sometimes people do (e.g. Chapter 11 bankruptcy) but not here. Likewise, people usually don't say 'title' unless they mean the entire thing (e.g. federal copyright law is chiefly codified in title 17).
The cite anyone familiar with copyright law would provide would be 17 U.S.C. 117. Getting basic stuff like this wrong is a bad sign.
Moving on, he has skipped -- though he took the trouble to quote -- an important clause in the section.
Taking this into account, we can say that:
Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner.
So the checklist is pretty simple: * Do you own a copy of the program? (EULAs may interfere with this, which is one of the reasons they're really intolerable) N.b. that some people misread owning a copy as owning a copyright. But that would be asinine as a copyright holder cannot infringe on his own copyright at all. It's as impossible as stealing something from yourself.
* Is the computer program being utilized in conjunction with a machine? Yes, if we're going to run it in an emulator.
* Are any reproductions or adaptations of the program you make only made as an essential step in running it in the emulator? Yes. Essential here doesn't really mean that there is no alternative, but rather that it's not utterly superfluous. I.e. merely because you might be able to run a program without reproducing it to the hard drive, but rather reproducing from CD straight to RAM, you aren't obligated to.
So what's the upshot for emulator writers? Well, I would worry about contributory copyright infringement, the type of legal challenge that all the Peer-to-Peer applications have had to deal with
I would generally not worry about that. To escape contributory infringement on the basis of a capability of a technology, one need only demonstrate potential, significant, noninfringing uses. Since there are plenty of programs that can be run in emulation which are authorized to be so run, in the public domain, or run by copyright holders themselves, that's likely sufficient. And even that presupposes that the guy is right, and he's not.
The backup/archival copy exception is a very narrow limitation relating to a copy being made by the rightful owner of an authentic game to ensure he or she has one in the event of damage or destruction of the authentic. Therefore, whether you have an authentic game or not, or whether you have possession of a Nintendo ROM for a limited amount of time, i.e. 24 hours, it is illegal to download and play a Nintendo ROM from the Internet.
This is roughly correct. First, note that Nintendo's statement applies to the backup provision of 117 -- 117(a)(2). We've been looking at 117(a)(1), which concerns itself with running software, not backing it up.
Second, I would disagree that backups lawfully made pursuant to 117(a)(2) can only be used when the original cannot be used.
The exclusive rights of the copyright holder are in 106. The relevant one is reproduction (i.e. making a new copy, given the special definition of 'copy' in 101). Use -- as distinguished from reproduction -- is not covered, and therefore not infringing. A caveat, however, in that a use that involves a reproduction is infringing on the basis of the reproduction; this is why we need 117, since moving things into hard drives or RAM is reproduction.
The statute allows archival copies to be made if they are only for archival purposes, but this only makes sense if they can at some point be acti
Except that the only right that a copyright holder has is the right of first sale, and no others. That is, once they give that copy to you, they can't prevent you from doing whatever you want with it - other than making a copy.
Not only are you wrong, you contradict yourself. Go read 17 USC 106 for the core rights of copyright holders. Remember that they're negative -- they are rights to exclude others, not rights to actually do.
The additional provisions for computer programs were added because the object copyrighted is not physical
Copyrightable works are never tangible. It is copies that are tangible, but a mere copy isn't copyrightable; just the work within.
It would be nice to extend the fair use rights to media files as well
Any kind of use can be a fair use. But no use is necessarily a fair use. The fair use factors are at 17 USC 107. If, based on an analysis of those factors, ripping movies on DVD to xvids is fair, then it's fair. The right implicated there is reproduction, btw. But each set of circumstances has to be considered anew. So the mere fact that it might be fair to rip things yourself does not mean that distributing rips to others, and downloading rips from others, would be fair. In fact, they probably aren't, though of course, it depends.
When you buy, for example, the Star Wars movies on DVD, you own the copy, i.e. the DVDs. No one owns the creative works; they're unownable. Lucasfilm (or someone) owns the copyright that pertains to the works.
Barring some actual contract (which doesn't appear to exist with regards to these movies) you own the copy absolutely as personal property.
This is inclusive of a right to use, but it is equally as unlimited and transferable a right as your right to use any piece of personal property.
The law may limit your use of it, but that doesn't diminish your ownership or alter the nature of the transaction by which you bought it. The law says I can't drive 100mph in a school zone, but I own my car. The law says I can't murder people with my kitchen knives, but I am the only person in the world with a property interest in them.
The law does say that you can't download the Star Wars movies, but that has nothing to do with your owning copies of them. Once the copyright expires on them, the law will not care any longer. Likewise, it will not care any longer as to what you do with the copies you bought.
If you were right -- you're not -- then it would continue to care, since you didn't magically get more rights.
I swear, I cannot figure out why the hell so many apparently intelligent people manage to overcomplicate and fuck up the very simple idea that when you buy stuff you own it.
I blame whatever asshole came up with EULAs. They're amazingly rare and totally at odds with how things operate by default. They're of dubious enforcibility and appear to have no real merit given copyright law as it stands. We really ought to ban them with only minor exceptions.
Mouse click, mouse double-click, mouse click and drag
Meh. These have been entirely popular everywhere.
mouse+alt, mouse+option
The Mac only has an option key (though it is also labeled 'alt' as a bone to rare instances of use with Wintel emulators and such). So no need to list it twice.
Anyway, while I grant that the use of keyboard metakeys in conjunction with the mouse is a valid subject of criticism, Windows at least does EXACTLY the same thing. I would be unsurprised to discover that many other OSes do as well.
But the key is that in the end, the only thing you need to be able to do is click (or back in the day, click, and click and drag). The rest are all optional shortcuts that can be used as a user sees fit, to speed things up if he likes.
Besides, I don't see you offering any significant alternatives. No one had contextual menus in the 1978-1984 timeframe during which the Mac was originally developed. And they aren't a panacea even today.
In a world where Playboy vs. Dumas happened (contract terms on the back of a check handing over cartoons as work-for-hire), I think you're attributing an awful lot of power to creators that they don't always have.
Creators have absolute power: they don't have to create. As with anyone, the terms under which they labor or sell off their rights are up to them. I don't think that they're appreciably any different from anyone else that might make contracts in whatever manner. Particularly given that the costs of entry for publishing and distribution are dropping like a rock, no special treatment seems warranted.
Oh, yes it does. The whole concept of work-for-hire exists only to get around moral rights.
Piffle. The concept of work for hire dates back to the 19th century and was codified in the 1909 Act. It's simply a recognition that employees, in the course of their employment, are agents or instrumentations of the employer and that therefore copyright appropriately vests in the employer. There are American and British cases on this subject (and related ones in the patent field) going way back.
The US didn't even touch the idea of moral rights until recently, so what the hell were we trying to get around a century prior?
We see similar treatment even outside of works for hire. I recall one case where a film director carefully directed how he wanted shots taken, lit, etc. The people actually working the gear claimed a right in the work and didn't get it because their job was simply to follow instructions even though the director wasn't even present.
This is really all in line with the logic that permitted photography to be copyrightable in the first place. The argument against it was that the work was being done by the camera and film. This didn't work out, though, since they were just found to be the tools of the photographer. I see nothing to indicate that a photographer can't be a tool of yet another author either.
is abused to no end in photography, illustration, and other fields where the relationship is between a large commercial entity and a single creative professional.
I see no difference between a single employee creating a work in the course of his employment, and a single contracting artist creating a work subject to his contract which explicitly states that it's a work for hire and which falls within the enumerated classes of work. (And as noted I think we ought to permit work for hire in any explicit situation)
The commissioned artist isn't an idiot. If he doesn't want to work under those conditions, he doesn't have to. Either someone else will or the commissioning party will have to back down.
If your complaint is simply that individual artists lack market power then I suggest unionizing which is the traditional remedy for that.
How can that possibly be a fair use absent moral rights? You're showing someone else's copyrighted work with an expectation of profit.
Because you're not competing with or reducing the market for the work shown in the portfolio. You're citing it to indicate your talent in the creation of different, future works. This places the fourth factor in favor of the creator, and in the case of a portfolio, there may be some favor in the third prong as well. (e.g. a still from a movie, or a thumbnail of a painting)
Additionally, n.b. that if it isn't a fair use, moral rights wouldn't make it fair, it would establish a seperate exception.
Most of the statutory exceptions are not fair. Others are, but are present to avoid incorrect judicial findings of unfairness or are there for thoroughness' sake.
Can you give some examples?
The right to protect the integrity of their work to prevent any modification, distortion, or mutilation that would be prejudicial to their honor or reputation
Bingo.
Remember, we're dealing with a situation where the artist holds a right to prevent alterations, but where he has assi
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but in fact, you can't arrested for jaywalking.
Really? Why not? While it might be uncommon, I don't see why it's impossible. It's probably happened before.
Same thing for copying movies for personal use. In fact, I'll bet the big corporations would never want this to go to trial because there's a good chance a court will simply say "pfft...fair use. And why are you wasting the court's time over 10 DVDs?"
There is little chance of a finding of fair use unless downloading -- without uploading -- is done only as a substitute for self-ripping. And even then there is a whole other kettle of fish with the anticircumvention provisions.
Also the number of works really isn't important. Ten infringements is not a frivolous enough matter for the court to get upset with the plaintiff or to have grounds to do anything untorward. It might set low damages (c.f. nominal damages in tort cases) but that's about it.
So okay. If you want to talk about the letter of the law. Great. The letter of the law once said blacks have to stand on the back of the bus. The law was wrong, and it finally took a generation of judges who understood that kind of thinking would eventually destroy the country because ultimately, it couldn't be reconciled with common sense and morality.
I fear you are confusing my discussion as to what the law is with an endorsement for the law as it is. Let me be clear: I like the idea of copyright law. But I hate the copyright law that we have on the books. I think we need massive reform and extreme reductions in the scope of copyright across the board. I think that by scrapping oand replacing our copyright law with a much more modest one, we can better fulfill the purposes copyright is intended to serve, and improve the well being of the people of our country, including our authors.
But I'm not going to pretend that this has happened yet, if it ever will. In fact, I think it is key to make sure that people know just what the law is now so that they know just how bad the law is now and are truly motivated to change it to something better.
I hope disney goes first.
Meh. I think they've done some bad stuff, but I'm prepared to forgive it so long as we can simply repair the damage as best we're able and prevent further abuses.
I don't fault them for being greedy. I want them to be greedy, since that's essential to the proper functioning of copyright. It's just like how luring a donkey forward by dangling a carrot in front of it relies on his greed. No greed, no forward motion.
I just want to channel that greed in useful ways, instead of letting it run roughshod over all of us.
Actually, like most lawyers, you avoided answering his question.
/. and that both of them have appeared on the same day in the same grouping of threads -- I will ask you to not post again here, but to instead post in the other thread where the argument (or smack down) is proceeding.
Actually I am engaged in a discussion with him in the thread I linked to. I simply don't want to repeat it. This is easier when you only have one argument at a time, instead of the same one, at different stages, in parallel.
But that's not what he asked. He raised the point that copyright holders are a new class that probably don't meet the definition as laid down by the founders.
They're not new. They date back to the creation of copyright to begin with. All copyright statutes in our legal tradition dating back nearly 300 years provide for copyright holders other than authors.
But since I suspect that you are in fact the other poster -- since I simply cannot believe that there are two such stupendously stupid people on
Neat trick, but i'll give you a hint... smart guys go into law. Brilliant guys go into computer science.
I have not found this to be the case. All kinds of people go into all kinds of professions. Certainly I know plenty of stupid computer scientists and brilliant lawyers, and also stupid lawyers and brilliant computer scientists.
And in case you're wondering, I have a nicer BMW than you too.
Probably. I have a 12 year old Ford. If I buy a new car (the current one is paid off) it'll probably be a Honda or something. I don't care about cars -- they only need to be cheap to own and operate, and to reliably get me where I need to go.
Since the Constitution says nothing about foreclosures, I guess that right is reserved to the states or the people.
I didn't say the federal government was the one legislating foreclosures. In fact, they don't. Federal copyright law envisions people being able to foreclose on the copyrights of copyright holders by operation of state law. Likewise, heirs can inherit copyrights by state intestacy law. And so forth.
You haven't even read the 9th and 10th.
Yes, I have.
There's a very clear delineation between the author or inventor in his cottage and the King George who seeks to buy him out and become the "copyright holder". If you can't see that then, at the risk of trolling, you're a fucking idiot.
The problem is that the author or inventor is the master of the assignment. You are saying that an author cannot assign his copyright as a gift to a friend. And that he cannot die and leave or will his copyright to his family. Etc.
Anyone who holds a copyright is a copyright holder, regardless of how he got it. The author is the first copyright holder, but anyone could be the later ones.
Longevity does not make it Constitutional.
True, but it raises a very large quantity of doubt in your unique reading.
Arguable.
No, courts pretty always find them to lack utility. This is chiefly owing to the utility doctrine, which precludes useful pictoral, graphic, and sculptural works from being copyrightable.
Some paintings might have utility but it's difficult to see a painting constituting a useful invention.
Pure conjecture.
No.
The best English dictionary ever is the Oxford English Dictionary. It not only defines words as used now, but provides definitions and examples of their use from throughout history. If you look up the word 'art' and look through the definitions to see what it would've meant in 1789 according to the books that were in print at that time (from which the definitions and examples are drawn), you'll see that I'm stating a fact. Hell, I looked it up just to check, when someone told me!
Any good university should have a copy. They're online too, but IIRC, it's not free. Or you can buy the 20 volume set from Amazon or other booksellers. I've had it on my wish list for years.
Where in the Constitution does it say that "arts refers only to technical arts"?
Where in the Constitution does it say that the country they call the United States of America is the one located on the North American continent. Maybe they meant a different one altogether!
It doesn't, because they didn't expect people to be such amazing idiots. They used words according to their meanings at the time. They didn't think they had to include a fucking dictionary that would start from first principles so that people could speak Constitutionese. English is one of those languages that changes a lot. It's the same reason why people have difficulty reading and understanding Shakespeare and why it's quite hard to read and understand Chaucer.
You haven't even touched the 9th and 10th Amendments yet.
Because they hold no relevance to this discussion. The power to permit transfers of copyright is a part of the federal copyright power either by itself or in conjunction with the necessary and proper clause (which you haven't touched). So long as it's a federal power, the 9th and 10th Amendments are not implicated.
And incidentally, while I can see the 10th amendment argument at least (since it is perfectly well established that the states have copyright powers too, to the degree they are not preempted by Congress based upon the supremecy clause et al), but I don't get your 9th amendment thing at all.
Not that it matters: you still haven't gotten anywhere with your attack on the federal power.
I suppose you're watching my posts.
Nope. I try to keep an eye on replies to mine.
I've got two
Section 117 of copyright laws says the owner of the copy has a right to make any copies they need to run it, and Peak was not the owner, but merely a contractor hired by the licensee.
Yes, and? MAI stands for the proposition that reproductions to RAM are infringing unless one of the previously mentioned factors applies.
You're saying that MAI's licensee had a factor going for it (it was authorized) but that Peak didn't (it wasn't authorized, 117 didn't shield it, 107 either didn't shield it or wasn't alleged, and the work was copyrighted).
If a console game is not licensed -- and I agree there -- then the owner of the game is EXACTLY the same boat as Peak was. One of these conditions needs to be satisfied, or running the game will result in infringement. Since all but the public domain condition seem to apply, the owner is all set. (the permission needn't be in a formal license, you know; it could be inferred from conduct, such as selling people the damn game)
Why are you arguing over something we seem to agree on?
(And EULAs are pretend licenses that won't hold up in court.)
Read the ProCD case?
Well, previously you said that the other operations of law by which a copyright can move from one person to another were unconstitutional. Foreclosure is one such operation of law. I'll leave you to reconcile your contradictions.
This isn't about "the left". It's about "the right".
Actually, 'left field' is a term from baseball, not politics. Here's the Webster's definition:
There is no corresponding idiom regarding right field.
I'm pretty worried about you now.
The language was meant to prevent another King George who could twist the law any way he wanted it, as you have done.
Yeah, I'm very tyrranical. The fact that Congress has 'twisted' this provision continuously in exactly the same way for the last 215 years, following in the tradition that would have been in the minds of the framers as they empowered Congress to act, and following in a tradition reaching back 295 years to the first copyright law -- this is all some big conspiracy is it? No chance that this longstanding interpretation could be accurate in any way as perhaps evidenced by how long it's gone unchallenged?
Authors and inventors. Artists are inventors of their art.
I'm sorry, you lose.
You have just claimed that artists are inventors, and as such deserve patents on their works. (which, incidentally, has never ever happened AFAIK)
According to the Constitution, we have patents to promote only the useful arts. Paintings have no utility as a rule. Nor are paintings a form of art -- since in 1789 when the Constitution was drafted, art referred to 'technical arts' as in 'state of the art technology.' It doesn't mean pretty things.
Do you mind keeping your (unfounded) arguments to the one thread only please? I'm already smacking you down quite nicely there. There's no need for repetition.
Um, and Playstations copy it to RAM also.
I know. It's one of those glaring problems with copyright law these days. Playing a Playstation game in a Playstation is infringing too unless one of several things apply: The game is in the public domain; permission is given (expressly or implicitly) to do so; 117 applies, or; 107 applies.
As a rule you can expect that the latter three apply for playing a console game on the console it's made for.
The permission angle is a little tougher with emulators, but we still have 117 and 107 and between them they basically cover it.
We don't need 'permission' to run computer programs.
I'm afraid you do. Unless you can run it without reproducing it, the reproduction is infringing unless any of the factors listed above apply. (or you hold the copyright of course, since you can't infringe against yourself) One of those is if the copyright holder has authorized you to reproduce it.
You should really read MAI v. Peak. (finding that running a program was illegal) And then maybe Intellectual Reserve v. Utah Lighthouse Ministry. (finding that looking at a web site was illegal)
That "operation of law" is unconstitutional.
I'm sorry, you're saying that foreclosures, for example, are unconstitutional? Exactly how far in left field are you, man?
It's outside the jurisdiction of the federal gov't as defined by the 9th and 10th Amendments.
Hm, and did you remember to take the necessary and proper clause into account?
However, according to the letter of the Constitution, you're still wrong.
Ah! There's the problem. You're being unreasonably literal. You're concerned with what the language literally is instead of what it actually means or even the purposes and ideals behind it.
We can have some fun with this. For example, an author is a person who writes text, and writings are textual in nature. Since the Constitution only refers to the writings of authors, would you claim that it does not permit for federal copyrights as to paintings of artists, or music of composers?
That's a novel argument, but I'm prepared to bet cash money that it would lose.
There has long been a distinction made between authors, who are the persons in which a copyright initially vests, and copyright holders (also known as proprietors) to whom the copyright later passes by assignment or operation of law.
The acts of the First Congress are often afforded special treatment because it is felt that, by virtue of being closer to the framing of the Constitution, its members had a noteworthy understanding and interpretation of it. They passed the Copyright Act of 1790, and it provides for assignment of copyright. Every copyright act since has as well. So it is highly likely that assignment is constitutional since we have always had it under the federal copyright power, from year one.
Furthermore, the Statute of Anne -- the first copyright law -- provides for assignment. The Continental Congress recognized assignment. And every single state that enacted a copyright law prior to the Constitution becoming effective provided for assignment.
So it's nice of you to weigh in, but to date no law in the American legal tradition dating all the way back to 1710 ever gives you even one iota of support for your premise that copyrights can only possibly be held by authors, and that non-authors (e.g. authors' heirs) can never hold them.
Furthermore, in light of Eldred, it's difficult to see that your argument would have any chance in hell of succeeding anytime soon. The courts, for some reason, are prepared to greatly defer to Congress regarding copyright matters. And since Congress likes letting non authors get copyrights, the courts will uniformly uphold the legislation enabling that as constitutional. And it's their interpretation of the constitution that matters in the end.
Want to try a better argument? One with a leg to stand on? I'm all ears.
A few corrections:
First, statutory damages are calculated per work infringed. Not per infringement.
If I make one copy of a song, that's one infringement, worth up to $150k.
If I make one million copies of the song, that's one million infringements, worth up to $150k in sum.
But if I make one copy each of two songs, only then do I face a potential liability of up to $300k.
Second, it's not the maximum potential damage amount. It's only the potential maximum for statutory damages. Copyright holders can opt for statutory damages, but they don't have to. If they do not so opt, they instead will have damages based on the actual damages and profits per 17 USC 504(b). This is sometimes done, particularly for very deep pocketed infringers, but it is more work.
Doesn't have to be the entire thing, and it doesn't have to be there any longer than it takes to merely reproduce it further or let people directly or indirectly perceive it.
The leading case on reproducing to RAM being potentially infringing is MAI v. Peak. You might want to google for it and give it a read. It's kind of bizarre, but it is widely followed.
I'm not a lawyer, but its pretty clear that if I copy a disk from a someone at work, and keep it and watch it, I am not liable for $1.5M of damages.
If I download a movie from the internet, keep it, and watch it, I am not liable for $1.5M of damages
I agree. But only due to math.
17 USC 106: The copyright holder has an exclusive right to reproduce the work. Whether you reproduce the work in a new copy by means of duplicating a DVD or by means of downloading it, it's reproduction.
17 USC 501: Anyone who violates any of the exclusive rights of the copyright holder is an infringer.
17 USC 504: A copyright holder may sue an infringer for statutory damages. Statutory damages are awarded in an amount of the court's discretion between the amount of $700 - $30,000 per work infringed. If the copyright holder successfully proves that the infringement was willful, the court may award statutory damages in an amount of its discretion between $700 and $150,000.
Hence the math thing. Your example involves a likely liability of $150,000. The earlier poster talked about ten movies, so 10 x $150,000 = $1.5 million.
If you find the $150,000 figure doubtful, I encourage you to look at the actual law. I've provided cites to it. You could google for it in mere seconds. I hope that you will, if you have an open mind.
But you can hardly blame him for mocking lawyers.
Oh, I don't. I like a good lawyer joke as much as the next guy. Only he didn't tell one. He didn't mock lawyers. He basically claimed that I wasn't a lawyer, which is incorrect, and that I didn't know what I was talking about, which I think I've refuted in a fairly calm and 'noble' manner. It's not like I attacked him. I mentioned my qualifications, and I stated the law.
I don't mind being called names either. But if he's going to insult me, don't you think that he could have done it better by agreeing that I was a lawyer instead of saying that I'm not? E.g. wishing I was at the bottom of the sea or whatever?
I guess I just like a good, witty, quality insult. You ever see that movie "Roxanne," with Steve Martin?
But since you have to create a new copy in RAM in order to play it, you are in fact relying on 17 USC 117(a)(1). So it's certainly a section worth discussion.
Which just goes to show what is fundamentally wrong with society when something like THAT has to be spelled out ;-)
/. post.
.sig hopefully shields me a bit there too.
What, the part about the public domain, or the part about my being a lawyer?
If the latter, it's not really anything wrong with society. It's that attorney-client relationships are very easy to have arise. When one does, it can be dangerous to the lawyer, not the client. The lawyer is bound by fiduciary duties, the duty of confidentiality, etc. This can happen even as to potential clients that don't end up becoming actual clients, since there has to be an intake interview to determine what the case is and whether the lawyer will take it; this involves confidential information and should remain so. So the disclaimer is to avoid this happening to me merely on the basis of a
Similarly, lawyers can practice only in jurisdictions where they're licensed to practice. I can only practice in MA. Some states may take a dim view of legal advice being dispensed on the Internet. I don't want to be in trouble for that either, though it seems quite remote, so the
It's really only something I do to protect myself, and to protect others so that they're not misled with regards to my posts, etc. You probably don't need to worry about it much. I don't see how it evidences a problem with society.
"Because they watch you get each one, and have evidence of that."
Except that they don't watch you "get" each one, they watch you "give" each one.
Depends on the nature of the P2P app, really. But fair enough.
Oh, they can monitor what I "get", but the crime of copying a work is much different and much less than the crime of what "give".
They are exactly equal.
So if I downloaded 10 movies, they can claim about $200 in damages.
No, if you download ten movies, and each movie is a single copyrighted work, they can claim $1.5 million of damages easily.
Please mr. "lawyer", stop pretending to know what the hell you're talking about.
First, there is no need for the quotes. I really am a lawyer, licensed to practice in Massachusetts. Second, I like to think that I know what I'm talking about, since I specialize in copyright law, have been reading it (often for pleasure) for years, and am currently well on my way to getting an LL.M. in IP at a law school well respected for IP studies, and I've been acing pretty much everything.
I tell you what. Come back with some citations to the relevant statutes and cases. If I'm wrong -- which I'm not -- I'll admit it and be better off for finding that out.
Note that nobody has EVER been prosecuted for downloading content
So? That doesn't mean that no one can be. Many suits have established that people who download copyrighted works without authorization are infringers. It is not subject to doubt at this point. Napster was taken down largely because downloading was found illegal. It's not alone.
And n.b. that criminal copyright prosecutions are comparatively rare. Civil suits (which are simply brought, not prosecuted) are quite common, however.
once you have a copy, you have it
Not really. Unlawfully made copies are often not eligible for exceptions (e.g. you cannot sell an unlawfully made copy because the first sale doctrine doesn't apply to it). And the regular exclusive rights still apply.
Downloading, meanwhile, is to make a new copy unlawfully. This makes you an infringer, and one of the panoply of remedies against infringers is confiscation and destruction of the unlawfully made copies. So you don't really get to keep it if you're caught.
The purpose behind it is because copyright holders are sympathetic figures, compared to infringers. Since it's hard for them to show their injuries, and since they lobby a lot, Congress decided they don't have to bother.
Also your example isn't that great since that can actually happen. Negligent persons are liable for damages arising out of their negligence, basically. If you negligently are in the road, and a car is damaged by hitting you when you're present there, you are liable for it. But since you likely were injured by the driver's negligence, and by a greater amount, what this translates into is a reduction in the amount of money you get from the other guy.
It's not unfair. (the old system of not allowing negligent persons to recover damages at all, that was unfair)
I don't think it's really appropriate to blame lawyers for this. In fact, let's have parades honoring lawyers! That's a good idea.
Because the law says that they can sue for a variety of remedies and that they never have to show that they're losing money in order to do so. In fact, even if an infringement made money for you somehow, you could still sue.
The answer to your question is at 17 USC 504, 505.
In general though, these suits are brought for the maximum amount of statutory damages. That means $150,000 per work infringed upon. So for a person who rips and scans a CD and puts it on their server, and the CD has, let's say 10 tracks, we could easily see 22 infringements -- the CD as a compilation, each song, each recording of each song, and the artwork. (This is a worst case sort of thing -- it could all be one big work just as easily)
So that's 22 x $150,000 = $3.3 million.
I remember a few years ago that some college students were being sued for billions of dollars.
Of course, the damage award could be lower, but it's still going to be pretty significant most of the time (the least you can normally expect is $700 per work) and the mere amount of the award doesn't mean you can pay it.
Since there's no point in trying to get blood from a stone, and since the cases are slam dunks as a rule, the RIAA and MPAA generally are very kind in agreeing to settle for a mere few thousand dollars.
I download movies but don't share that many because of hard drive space, I only share what I'm still downloading. Once it's done I typically burn it to CD and delete it from the PC, so while I have (insert large number) movies all they see is maybe the dozen I'm downloading. How successful will this be?
Because they watch you get each one, and have evidence of that. And they sue you, and have a discovery request requiring you to tell them and to produce the copies and your equipment so they can inspect it. And because they get a court order to impound the copies you made and go to your house with federal marshalls and take them away.
These suits are not being brought to make money. People don't have enough money to make this worthwhile.
It's just to scare people into not pirating.
Actually, the arguments the industries are making in the Grokster case, which goes to the Supreme Court in a couple months, are pretty much along the lines of that technologies that are used in conjunction with piracy should be banned or crippled so as to make them basically impossible to so use them.
Cheers.
Warning sign one: No one gives a rat's ass about chapters in title 17. Sometimes people do (e.g. Chapter 11 bankruptcy) but not here. Likewise, people usually don't say 'title' unless they mean the entire thing (e.g. federal copyright law is chiefly codified in title 17).
The cite anyone familiar with copyright law would provide would be 17 U.S.C. 117. Getting basic stuff like this wrong is a bad sign.
Moving on, he has skipped -- though he took the trouble to quote -- an important clause in the section.
Taking this into account, we can say that:
So the checklist is pretty simple:
* Do you own a copy of the program? (EULAs may interfere with this, which is one of the reasons they're really intolerable) N.b. that some people misread owning a copy as owning a copyright. But that would be asinine as a copyright holder cannot infringe on his own copyright at all. It's as impossible as stealing something from yourself.
* Is the computer program being utilized in conjunction with a machine? Yes, if we're going to run it in an emulator.
* Are any reproductions or adaptations of the program you make only made as an essential step in running it in the emulator? Yes. Essential here doesn't really mean that there is no alternative, but rather that it's not utterly superfluous. I.e. merely because you might be able to run a program without reproducing it to the hard drive, but rather reproducing from CD straight to RAM, you aren't obligated to.
So what's the upshot for emulator writers? Well, I would worry about contributory copyright infringement, the type of legal challenge that all the Peer-to-Peer applications have had to deal with
I would generally not worry about that. To escape contributory infringement on the basis of a capability of a technology, one need only demonstrate potential, significant, noninfringing uses. Since there are plenty of programs that can be run in emulation which are authorized to be so run, in the public domain, or run by copyright holders themselves, that's likely sufficient. And even that presupposes that the guy is right, and he's not.
The backup/archival copy exception is a very narrow limitation relating to a copy being made by the rightful owner of an authentic game to ensure he or she has one in the event of damage or destruction of the authentic. Therefore, whether you have an authentic game or not, or whether you have possession of a Nintendo ROM for a limited amount of time, i.e. 24 hours, it is illegal to download and play a Nintendo ROM from the Internet.
This is roughly correct. First, note that Nintendo's statement applies to the backup provision of 117 -- 117(a)(2). We've been looking at 117(a)(1), which concerns itself with running software, not backing it up.
Second, I would disagree that backups lawfully made pursuant to 117(a)(2) can only be used when the original cannot be used.
The exclusive rights of the copyright holder are in 106. The relevant one is reproduction (i.e. making a new copy, given the special definition of 'copy' in 101). Use -- as distinguished from reproduction -- is not covered, and therefore not infringing. A caveat, however, in that a use that involves a reproduction is infringing on the basis of the reproduction; this is why we need 117, since moving things into hard drives or RAM is reproduction.
The statute allows archival copies to be made if they are only for archival purposes, but this only makes sense if they can at some point be acti
Except that the only right that a copyright holder has is the right of first sale, and no others. That is, once they give that copy to you, they can't prevent you from doing whatever you want with it - other than making a copy.
Not only are you wrong, you contradict yourself. Go read 17 USC 106 for the core rights of copyright holders. Remember that they're negative -- they are rights to exclude others, not rights to actually do.
The additional provisions for computer programs were added because the object copyrighted is not physical
Copyrightable works are never tangible. It is copies that are tangible, but a mere copy isn't copyrightable; just the work within.
It would be nice to extend the fair use rights to media files as well
Any kind of use can be a fair use. But no use is necessarily a fair use. The fair use factors are at 17 USC 107. If, based on an analysis of those factors, ripping movies on DVD to xvids is fair, then it's fair. The right implicated there is reproduction, btw. But each set of circumstances has to be considered anew. So the mere fact that it might be fair to rip things yourself does not mean that distributing rips to others, and downloading rips from others, would be fair. In fact, they probably aren't, though of course, it depends.
You're right. That is bullshit.
When you buy, for example, the Star Wars movies on DVD, you own the copy, i.e. the DVDs. No one owns the creative works; they're unownable. Lucasfilm (or someone) owns the copyright that pertains to the works.
Barring some actual contract (which doesn't appear to exist with regards to these movies) you own the copy absolutely as personal property.
This is inclusive of a right to use, but it is equally as unlimited and transferable a right as your right to use any piece of personal property.
The law may limit your use of it, but that doesn't diminish your ownership or alter the nature of the transaction by which you bought it. The law says I can't drive 100mph in a school zone, but I own my car. The law says I can't murder people with my kitchen knives, but I am the only person in the world with a property interest in them.
The law does say that you can't download the Star Wars movies, but that has nothing to do with your owning copies of them. Once the copyright expires on them, the law will not care any longer. Likewise, it will not care any longer as to what you do with the copies you bought.
If you were right -- you're not -- then it would continue to care, since you didn't magically get more rights.
I swear, I cannot figure out why the hell so many apparently intelligent people manage to overcomplicate and fuck up the very simple idea that when you buy stuff you own it.
I blame whatever asshole came up with EULAs. They're amazingly rare and totally at odds with how things operate by default. They're of dubious enforcibility and appear to have no real merit given copyright law as it stands. We really ought to ban them with only minor exceptions.
Mouse click, mouse double-click, mouse click and drag
Meh. These have been entirely popular everywhere.
mouse+alt, mouse+option
The Mac only has an option key (though it is also labeled 'alt' as a bone to rare instances of use with Wintel emulators and such). So no need to list it twice.
Anyway, while I grant that the use of keyboard metakeys in conjunction with the mouse is a valid subject of criticism, Windows at least does EXACTLY the same thing. I would be unsurprised to discover that many other OSes do as well.
But the key is that in the end, the only thing you need to be able to do is click (or back in the day, click, and click and drag). The rest are all optional shortcuts that can be used as a user sees fit, to speed things up if he likes.
Besides, I don't see you offering any significant alternatives. No one had contextual menus in the 1978-1984 timeframe during which the Mac was originally developed. And they aren't a panacea even today.
In a world where Playboy vs. Dumas happened (contract terms on the back of a check handing over cartoons as work-for-hire), I think you're attributing an awful lot of power to creators that they don't always have.
Creators have absolute power: they don't have to create. As with anyone, the terms under which they labor or sell off their rights are up to them. I don't think that they're appreciably any different from anyone else that might make contracts in whatever manner. Particularly given that the costs of entry for publishing and distribution are dropping like a rock, no special treatment seems warranted.
Oh, yes it does. The whole concept of work-for-hire exists only to get around moral rights.
Piffle. The concept of work for hire dates back to the 19th century and was codified in the 1909 Act. It's simply a recognition that employees, in the course of their employment, are agents or instrumentations of the employer and that therefore copyright appropriately vests in the employer. There are American and British cases on this subject (and related ones in the patent field) going way back.
The US didn't even touch the idea of moral rights until recently, so what the hell were we trying to get around a century prior?
We see similar treatment even outside of works for hire. I recall one case where a film director carefully directed how he wanted shots taken, lit, etc. The people actually working the gear claimed a right in the work and didn't get it because their job was simply to follow instructions even though the director wasn't even present.
This is really all in line with the logic that permitted photography to be copyrightable in the first place. The argument against it was that the work was being done by the camera and film. This didn't work out, though, since they were just found to be the tools of the photographer. I see nothing to indicate that a photographer can't be a tool of yet another author either.
is abused to no end in photography, illustration, and other fields where the relationship is between a large commercial entity and a single creative professional.
I see no difference between a single employee creating a work in the course of his employment, and a single contracting artist creating a work subject to his contract which explicitly states that it's a work for hire and which falls within the enumerated classes of work. (And as noted I think we ought to permit work for hire in any explicit situation)
The commissioned artist isn't an idiot. If he doesn't want to work under those conditions, he doesn't have to. Either someone else will or the commissioning party will have to back down.
If your complaint is simply that individual artists lack market power then I suggest unionizing which is the traditional remedy for that.
How can that possibly be a fair use absent moral rights? You're showing someone else's copyrighted work with an expectation of profit.
Because you're not competing with or reducing the market for the work shown in the portfolio. You're citing it to indicate your talent in the creation of different, future works. This places the fourth factor in favor of the creator, and in the case of a portfolio, there may be some favor in the third prong as well. (e.g. a still from a movie, or a thumbnail of a painting)
Additionally, n.b. that if it isn't a fair use, moral rights wouldn't make it fair, it would establish a seperate exception.
Most of the statutory exceptions are not fair. Others are, but are present to avoid incorrect judicial findings of unfairness or are there for thoroughness' sake.
Can you give some examples?
The right to protect the integrity of their work to prevent any modification, distortion, or mutilation that would be prejudicial to their honor or reputation
Bingo.
Remember, we're dealing with a situation where the artist holds a right to prevent alterations, but where he has assi