Anyway, I'd also like to see a continuing obligation by patent holders and licensees (regardless of whether any of them is the inventor) to update best mode disclosures, particularly as to alternative bests.
And a lowering of the standard in court from clear and convincing evidence to preponderance of the evidence.
And an ability to use prior art the PTO was aware of.
Lowering infringement damages would also be good.
And perhaps eliminating damage awards as subject to MFL clauses.
Didn't you notice the 1337 sequences? They're 'leet patent numbers, apparently. Dunno what the significance of the last one is, though. And it's a weak joke.
I know about software copyrightability: it barely squeeks in, it's so close to the wrong side of the idea-expression dichotomy.
Games are pretty close in terms of their mechanics. Storylines for scenarios that take place in a game, or artwork depicting the characters in a game and so forth are all easily copyrightable, just as they'd be in a program.
However, what I'm interested in is the functional portion of the work, since that's what's key for people that want to make compatable games, supplements, etc.
Anyone with the artistic ability to re-create a whole RPG system without infringing on the clear copyrights RPGs do have (layout, expression, et al) has the artistic ability to just make an RPG distinct enough to stand on its own.
Meh. I've been thinking of writing some supplements for GURPS that I plan to publish. I don't plan on getting permission to use their mechanics or indicate that my material would be compatable with theirs. Of course, it might be easier than usual with GURPS since there's such a great divide between their rules and the settings.
Let's quote now:
To the extent that an accounting text and a computer program are both "a set of statements or instructions . . . to bring about a certain result," 17 U.S.C. 101, they are roughly analogous. In the former case, the processes are ultimately conducted by human agency; in the latter, by electronic means. In either case, as already stated, the processes themselves are not protectable. But the holding in Baker goes farther. The Court concluded that those aspects of a work, which "must necessarily be used as incident to" the idea, system or process that the work describes, are also not copyrightable. 101 U.S. at 104. Selden's ledger sheets, therefore, enjoyed no copyright protection because they were "necessary incidents to" the system of accounting that he described. Id. at 103. From this reasoning, we conclude that those elements of a computer program that are necessarily incidental to its function are similarly unprotectable....
We think that Whelan's approach to separating idea from expression in computer programs relies too heavily on metaphysical distinctions and does not place enough emphasis on practical considerations. Cf. Apple Computer, 714 F.2d at 1253 (rejecting certain commercial constraints on programming as a helpful means of distinguishing idea from expression because they did "not enter into the somewhat metaphysical issue of whether particular ideas and expressions have merged"). As the cases that we shall discuss demonstrate, a satisfactory answer to this problem cannot be reached by resorting, a priori, to philosophical first principals.
As discussed herein, we think that district courts would be well-advised to undertake a three-step procedure, based on the abstractions test utilized by the district court, in order to determine whether the non-literal elements of two or more computer programs are substantially similar. This approach breaks no new ground; rather, it draws on such familiar copyright doctrines as merger, scenes a faire, and public domain. In taking this approach, however, we are cognizant that computer technology is a dynamic field which can quickly outpace judicial decisionmaking. Thus, in cases where the technology in question does not allow for a literal application of the procedure we outline below, our opinion should not be read to foreclose the district courts of our circuit from utilizing a modified version....
This process entails examining the structural components at each level of abstraction to determine whether their particular inclusion at that level was "idea" or was dictated by considerations of efficiency, so as to be necessarily incidental to that idea; required by factors external to the program itself; or taken from the public domain and hence is nonprotectable expression....
Well, fortunately I've got Lexis at hand, and its treasure trove of law review articles to do quick and dirty legal research for me.
Didn't have anything even vaguely on point.
And between 102(b), and Feist (killing the sweat of the brow theory) I just don't see how the argument can be made.
Rules: not copyrightable because they're methods.
A compilation of rules into a cohesive game is still just one big method; it's not going to be a copyrightable compilation.
An expression of a rule in any form: maybe copyrightable, depends on applicability of the merger doctrine. Doesn't protect the underlying rule itself, just how you say it.
2D and 3D art: subject to the utility doctrine.
Mere 'complexity' is not sufficient to make something copyrightable. It has to fulfill the constitutional and statutory requirements. There's no getting around it.
Watch how fast you wind up in court for "violation of copyright upon trade dress" or even the very untested "game as a character" theory.
Where the hell are you getting these from?
there's enough credible legal theory to aruge that an RPG is complex enough to deserve copyright protection that, at the least, you'd have to go to court to fight it.
Got a cite? I'd like to see something dicussing this.
Most folk who try making indie RPGs are not wealthy enough to hire a lawyer to fight off a lawsuit. They have to be browbeaten to even hire one for a one-day review before publicaion.
Tell me about it. Cheap bastards.
you get to use *prewritten text* of the world's most popular RPG
Ah, that's something useful.
3. in that it gives you the right to use a registered trademark
And yet, if you create a game that actually is compatable with d20, the nominative use doctrine is pretty clear that you can say so explicitly. Maybe you don't get to use the fancy d20 logo, but big whoop.
I discussed game copyrightability here. Basically it varies from none to total depending on what part of the game and the materials connected to the game we're talking about. There's also a copyright office circular on their website.
Game rules can be patented -- but only if they meet the requirements for patentability, which is pretty rare. The only game rule I ever heard of being patented was something to do with Magic cards. Most rules though are so non-novel or obvious that it's not an issue, and anyway game developers don't seem to be worried enough about it to act before the 1 year time limit to file expires. (and n.b. that there's a 0-day time limit in most foreign countries -- you'd have to start the process before publishing the game, which would require great confidence as it's very costly)
No, you cannot copyright a game. A game is just rules, and rules are a form of method (i.e. the rules are the method to play the game) which is uncopyrightable subject matter per 17 USC 102(b).
However, an EXPRESSION of the rules MAY be copyrightable. That is, the underlying mechanic is not, but how you describe it might be. The trick here is the merger rule: if there's a substantially finite number of ways to reasonably express the rule, then no expression of it is copyrightable lest it in effect act as a copyright on the underlying rule. There have been contest rules in the past that merged with expressions rendering them uncopyrightable. I would expect that this is possible to some degree with rpgs.
Of course, other expressions, art, pieces, etc. are all generally copyrightable. (art and pieces may be subject to the utility doctrine, but it depends on what kind of piece we're talking about -- most are probably copyrightable, though)
This is why I always found the d20 license to be bizarre. They can't actually stop people from making compatable works, or from indicating compatability so long as there's no confusion as to source, etc. You really don't get anything out of it. And yet people just keep on going for it. Weird.
No, it really is a four prong test. Since it's an equitable doctrine, however, the weight each prong has may vary in specific situations.
Also you did it wrong. Reproducing an entire DVD is not transformative -- it's the same work. A transformative use would be if you altered it so much that it became something new.
Anyway, satisfying the fourth prong may be sufficient on its own, but I've never seen that happen. The slimmest fair use I've ever seen is space shifting, and that's part of the first prong and the fourth. OTOH, I will say that I don't recall a fair use that didn't involve a win on the fourth prong, but that doesn't make it sufficient by itself.
While money is behind China's MFN status, do bear in mind that it's not exclusive or anything. Most Favored simply means that no one else can be more favored -- not that others cannot be equally favored. This means that we can't offer Pottsylvania better trading terms, or that if we do, we must also offer them to China (and our other MFN trading partners) in order to maintain parity.
The way we currently do it in the US is to classify importation as a subset of distribution, which is an exclusive right of the US copyright holder.
Since the first sale doctrine only applies to copies lawfully made under US law, foreign imports generally don't qualify. (reimports would, though)
The only ones that are okay fall under the 602 exemption, both halves of which must be satisfied. Thus, imports that don't fall under 109 are only okay if they are 1) authorized by the US rights holder, or 2) both fall within a narrow exception (e.g. for personal use and not for further distribution) and that had the law of the place they were made been the same as US law they still would've been made lawfully.
People violate these a lot, but small time infringing importations don't really concern people much. Doing it commercially though -- that's asking for trouble.
It hasn't been a problem before, because it hasn't been terribly convenient to buy from overseas.
Sure it has. Canada and Mexico, just for a start. Really, a lot of stuff gets imported into the US.
At any rate, it's basically all solved. The EU is still coming together in certain respects, so we're seeing them have some difficulty here, but I don't see any developments generally along these lines in the foreseeable future.
However, I don't think that anyone would say that you should surrender your CDs when you travel overseas (and especially not when you *move* overseas).
On the other hand, if they only sell *from the US server*, then do they really need to license in each country?
Yes.
The artist will still get paid, right, whether the purchase comes from the US store or the UK store. Right?
No. The copyright holders might be different in different countries. It's not unusual to sell one's rights in something to different people domestically and abroad. Plus, copyright isn't (and shouldn't be) standard worldwide.
You should be allowed to buy from wherever the hell you please.
The problem being that this can undercut domestic policies. E.g. if you can buy from a country with no copyright law, then the copyright law in your own country becomes pretty worthless.
Thanks for that very long post, I'm sure you put a lot of work into it.
Clearly you haven't seen my very long posts. That was nothing. Took a few minutes, tops.
You're correct, IF the.torrent file actually has protected information in it.
No, that would be a direct infringement.
To contribute to the direct infringement of another, one need only materially help someone else infringe, or encourage someone else to infringe.
Sony, for example, made VCRs and had manuals and ads describing what it was able to do. This was a material contribution. No one at all argues about that. They provided a significant part of the means by which infringement could take place. Sony escaped liability by way of not having enough knowledge to be liable.
There have been cases where the landlords that rent space to direct infringers been found liable since it's hard to distribute works without a stable place to do it from (distribution is a form of direct infringement) and the landlord knew of the infringement and didn't stop contributing to it by allowing the tenants to remain.
And ALL the landlord did was collect rent money.
This is how broadly this sort of thing can be applied. I'm sure you can see how vicarious infringement theories can be applied to a lot of people as well.
You can get hit with an infringement suit even if you never touched the actual copyrighted work in question. Just so long as you have the right kind of connection to someone that did.
You don't have to like it, but I think you'd be very stupid if you didn't try to find out precisely what the law actually is. At least so that you know when you are and are not breaking it so that you can make those decisions carefully. Putting your hands in your ears and closing your eyes and claiming that it's not true when it is doesn't help.
So, by my saying that there is a place on the web called suprnova.org, I've just contributed to the infringement of copyright? Should I be prosecuted for spreading information that someone might use illegally?
Maybe.
If that was a material contribution, there was a direct infringement, and you had actual or constructive knowledge of such infringement, then yes.
Basically website A posted a link to website B, knowing that website B had posted copyrighted documents in an infringing manner. Because people reading website A were encouraged to go to website B, and because reading the documents at website B would constitute an infringing reproduction of those documents, and because website A's owners knew of the infringement -- they were felt to be substantially likely to themselves be infringers.
N.b., you're more likely to be sued civilly than prosecuted criminally.
Of course, the bare statement that suprnova exists really wouldn't be sufficient. But saying something like 'You can download movies from suprnova' might. In the end, there are no magic words. Courts'll look at the character of what you said, your audience, etc. If you're a model citizen (e.g. a New York Times with an article about piracy since its' a newsworthy thing) then you'll probably avoid liability. If you appear disreputable (e.g. a 2600 posting links to suprnova and talking about how people ought to pirate movies and stick it to the man du jour) then you'll have a harder time. This is because in the latter case -- aside from not getting much sympathy because you seem like a bad guy -- there probably is a higher chance of material contribution.
For suprnova themselves -- they'd be toast. You can't possibly say that hosting torrent files is not a material contribution. They'd have to argue the knowledge angle as far as contributory liability goes. I think it would be hard.
This is why they're not in the US, IIRC. They wouldn't have a chance here.
Says the courts. Congress hasn't bothered to actually codify the doctrines, but they do appear to have endorsed them in various legislation.
FYI, this isn't unusual: The fair use doctrine was created by the courts back in 1841 and wasn't codified until the 1976 Act. The first sale doctrine was created in what, 1908, and was codified in the 1909 Act the next year. The work for hire doctrine appeared in US courts in the 19th century and also wasn't codified until 1909.
Anyway, read the decision here, where the relevant bit begins "Accordingly, we next address whether Napster is secondarily liable for the direct infringement under two doctrines of copyright law: contributory copyright infringement and vicarious copyright infringement."
It seemed a bit long to quote.
Of course, you could've just googled for contributory and vicarious copyright infringement and found plenty about this.
These are rather old doctrines and AFAIK no one has really challenged the basic idea, and certainly not successfully. The only fights tend to be whether there was a necessary direct infringement (for neither contributory nor vicarious infringement can exist where there is no underlying direct infringement) and whether the requirements for these indirect forms of infringement have been met.
For example, Sony won the famous Betamax case both by arguing that there were fewer direct infringements than had been claimed, and that they didn't have the level of knowledge required by the contributory infringement doctrine. OTOH they didn't say that the very idea of contributory infringement was a lot of crap, probably because that would not be a successful argument.
Contributory infringement: You infringe by hosting torrents if the hosting contributes to the direct infringement of another (i.e by helping them up/download, even at a remove), and you have knowledge of the direct infringement.
Vicarious infringement: You infringe by hosting torrents if you have the right and ability to prevent the direct infringement of another (i.e. you can remove torrents) and you receive some financial benefit by the hosting (e.g. attracting people who see ads, or pay for access, etc.).
It doesn't matter if you're affiliated with other people who are involved.
Not particularly. Infringement cases are easy to make, and are not hard to get good injunctive relief and large damage awards from. This cures the infringement and deters future infringements.
So since you seem to like the idea of comparing infringement to theft, aren't property rights also meaningless when someone else has taken your property? Or do you think that, just as with copyrights, the enforcement of property rights by means of injunctive relief, damage awards, etc. is what makes them meaningful?
Well, first, if you wrote down what you thought the script of a movie was, and you had access to the original in some form (e.g. by having watched the movie) and there was some of the original in yours, then that would be infringing.
As for the torrents, they're not the copyrighted works themselves, but running a tracker is still probably contributory and vicarious infringement depending on the details of precisely how the tracker is being run, etc.
I mean, Napster didn't really do anything more than run a tracker that let users get together. And look what happened to them. Why do you think it can't happen to torrent sites?
Except that it doesn't so much. He still has the regular exclusive rights even when you infringe. If he didn't, there'd be nothing to infringe against!
No, that's still not quite right. If you steal something, not only do you deprive the rightful owner of it, you appropriate it for yourself or another. Thus, to steal a copyright, you'd have to end up with the exclusive right yourself. Clearly that doesn't happen.
It's an infringement, in that you are treading upon the exclusive right, which remains in the copyright holder. It's like trespassing -- it's not theft of land, but it is an affront to rights. Note that when the government censors people, we talk of infringement on first amendment rights. It's a similar deal.
So I think that there's nothing that can even be characterized as stealing going on. The closest fit is trespass, but why not just call it what it is: infringement. It's the correct term and it isn't loaded with invective that merely clouds the issue. It's something that we can still agree is illegal.
Yes. I don't mean to be harsh, however. I have no problem with people desiring payment, and in fact it's fairly useful in the copyright field in that this is basically how authors are manipulated. Don't misread greed as being bad. Too much might be, but an ordinary amount is likely okay. It's just a common human behavior, and it's a predictable and prevalent one.
I know many artists who base their total income on the work they produce.
I'm not sure what you mean here, due to work having multiple conflicting meanings. Do you mean that you know many artists, where their total income derives from their labor as artists? Or where their total income derives proximately from the sales of tangible objects embodying the creative products they have made?
Of course, I know many artists, and I too know that both are very common ways of deriving income. (Of course, just because one's total income springs from artistry doesn't mean you're supporting yourself from it, which is rather more important, I should think)
I personally used to be an artist for several years, and I supported myself entirely from my labor, but not from the fruits of my labor. Now I'm back in school.
Nevertheless, I would point out that while artists have, since time began, hired out their labor, and sold the fruits of their labor, the latter is only quite recently of interest as prior to copyright laws being enacted, while an artist might sell a copy of something, nothing much precluded anyone else from selling an identical copy. This resulted in a desirable state of competition where efficiencies in creating new copies were rapidly developed.
Your breathing air analogy sucks - I won't go into it any further.
Why? I caused the air to be created. I spent time creating the air. No one else has the particular packet of air I created. Why should other people be breathing it without my consent or at least compensating me?
The idea of the nominally valuable intangible property that's not treated like property was lifted from the old story of the poor man who lived above a bakery. He couldn't afford much food, but always felt more filled than he ought to since the scents from the bakery provided him comfort. The baker took him to court to get paid for this benefit. The wise judge agreed that the poor man had profited from the smell of the bread and hadn't paid for it. The judgment was to repay the baker with the sound of coins clinking together!
I think it's got some relevance here in that creative works are intangibles and tend to spread uncontrollably. They may benefit people, but it is not inevitable, nor historically common, that people would consider them to be of such import that the creator deserves reward as to these works as fruits of labor.
It is my property
No, it is not. I challenge you to show some support for this outrageous claim. Remember: a song is not the same thing as a tangible thing that embodies the song, and neither is the same thing as a copyright which pertains to the song.
Your views are naive to say the least.
That is of course a point of view. But I've been developing them for a number of years now, and you have failed to challenge them effectively, even though I'd like to see them further forced to prove themselves worthy or replaced with something better.
Piffle. No one is saying that Australia HAS to follow the US law. Only that the US law is, in this case, well thought out and convincing and a good idea which should be adopted in Australia on its own merits.
Don't go making mountains out of molehills. Particularly since the US has been doing this forever, and it's pretty common elsewhere too, and always has been.
Slashdot Mirror
Ah? So if I invent a method of teleporting places by thinking about it, I get nothing? That's rather harsh, and it'd be a nice invention to have.
patents should be found valid
Since when are they found valid at all?
Anyway, I'd also like to see a continuing obligation by patent holders and licensees (regardless of whether any of them is the inventor) to update best mode disclosures, particularly as to alternative bests.
And a lowering of the standard in court from clear and convincing evidence to preponderance of the evidence.
And an ability to use prior art the PTO was aware of.
Lowering infringement damages would also be good.
And perhaps eliminating damage awards as subject to MFL clauses.
Didn't you notice the 1337 sequences? They're 'leet patent numbers, apparently. Dunno what the significance of the last one is, though. And it's a weak joke.
OR the patent can be granted in court, in a case where the defendant has all the resources to make the judge drop the patent.
Could you expand on this? I'm not sure what you mean by this precisely, or whether it would be possible in an Art. III court.
I know about software copyrightability: it barely squeeks in, it's so close to the wrong side of the idea-expression dichotomy.
Games are pretty close in terms of their mechanics. Storylines for scenarios that take place in a game, or artwork depicting the characters in a game and so forth are all easily copyrightable, just as they'd be in a program.
However, what I'm interested in is the functional portion of the work, since that's what's key for people that want to make compatable games, supplements, etc.
Anyone with the artistic ability to re-create a whole RPG system without infringing on the clear copyrights RPGs do have (layout, expression, et al) has the artistic ability to just make an RPG distinct enough to stand on its own.
Meh. I've been thinking of writing some supplements for GURPS that I plan to publish. I don't plan on getting permission to use their mechanics or indicate that my material would be compatable with theirs. Of course, it might be easier than usual with GURPS since there's such a great divide between their rules and the settings.
Let's quote now:
Well, fortunately I've got Lexis at hand, and its treasure trove of law review articles to do quick and dirty legal research for me.
Didn't have anything even vaguely on point.
And between 102(b), and Feist (killing the sweat of the brow theory) I just don't see how the argument can be made.
Rules: not copyrightable because they're methods.
A compilation of rules into a cohesive game is still just one big method; it's not going to be a copyrightable compilation.
An expression of a rule in any form: maybe copyrightable, depends on applicability of the merger doctrine. Doesn't protect the underlying rule itself, just how you say it.
2D and 3D art: subject to the utility doctrine.
Mere 'complexity' is not sufficient to make something copyrightable. It has to fulfill the constitutional and statutory requirements. There's no getting around it.
Watch how fast you wind up in court for "violation of copyright upon trade dress" or even the very untested "game as a character" theory.
Where the hell are you getting these from?
there's enough credible legal theory to aruge that an RPG is complex enough to deserve copyright protection that, at the least, you'd have to go to court to fight it.
Got a cite? I'd like to see something dicussing this.
Most folk who try making indie RPGs are not wealthy enough to hire a lawyer to fight off a lawsuit. They have to be browbeaten to even hire one for a one-day review before publicaion.
Tell me about it. Cheap bastards.
you get to use *prewritten text* of the world's most popular RPG
Ah, that's something useful.
3. in that it gives you the right to use a registered trademark
And yet, if you create a game that actually is compatable with d20, the nominative use doctrine is pretty clear that you can say so explicitly. Maybe you don't get to use the fancy d20 logo, but big whoop.
Still doesn't seem worth it to me.
I discussed game copyrightability here. Basically it varies from none to total depending on what part of the game and the materials connected to the game we're talking about. There's also a copyright office circular on their website.
Game rules can be patented -- but only if they meet the requirements for patentability, which is pretty rare. The only game rule I ever heard of being patented was something to do with Magic cards. Most rules though are so non-novel or obvious that it's not an issue, and anyway game developers don't seem to be worried enough about it to act before the 1 year time limit to file expires. (and n.b. that there's a 0-day time limit in most foreign countries -- you'd have to start the process before publishing the game, which would require great confidence as it's very costly)
No, you cannot copyright a game. A game is just rules, and rules are a form of method (i.e. the rules are the method to play the game) which is uncopyrightable subject matter per 17 USC 102(b).
However, an EXPRESSION of the rules MAY be copyrightable. That is, the underlying mechanic is not, but how you describe it might be. The trick here is the merger rule: if there's a substantially finite number of ways to reasonably express the rule, then no expression of it is copyrightable lest it in effect act as a copyright on the underlying rule. There have been contest rules in the past that merged with expressions rendering them uncopyrightable. I would expect that this is possible to some degree with rpgs.
Of course, other expressions, art, pieces, etc. are all generally copyrightable. (art and pieces may be subject to the utility doctrine, but it depends on what kind of piece we're talking about -- most are probably copyrightable, though)
This is why I always found the d20 license to be bizarre. They can't actually stop people from making compatable works, or from indicating compatability so long as there's no confusion as to source, etc. You really don't get anything out of it. And yet people just keep on going for it. Weird.
The OED has the first use of 'pirate' in this sense as being from 1668.
No, it really is a four prong test. Since it's an equitable doctrine, however, the weight each prong has may vary in specific situations.
Also you did it wrong. Reproducing an entire DVD is not transformative -- it's the same work. A transformative use would be if you altered it so much that it became something new.
Anyway, satisfying the fourth prong may be sufficient on its own, but I've never seen that happen. The slimmest fair use I've ever seen is space shifting, and that's part of the first prong and the fourth. OTOH, I will say that I don't recall a fair use that didn't involve a win on the fourth prong, but that doesn't make it sufficient by itself.
While money is behind China's MFN status, do bear in mind that it's not exclusive or anything. Most Favored simply means that no one else can be more favored -- not that others cannot be equally favored. This means that we can't offer Pottsylvania better trading terms, or that if we do, we must also offer them to China (and our other MFN trading partners) in order to maintain parity.
The way we currently do it in the US is to classify importation as a subset of distribution, which is an exclusive right of the US copyright holder.
Since the first sale doctrine only applies to copies lawfully made under US law, foreign imports generally don't qualify. (reimports would, though)
The only ones that are okay fall under the 602 exemption, both halves of which must be satisfied. Thus, imports that don't fall under 109 are only okay if they are 1) authorized by the US rights holder, or 2) both fall within a narrow exception (e.g. for personal use and not for further distribution) and that had the law of the place they were made been the same as US law they still would've been made lawfully.
People violate these a lot, but small time infringing importations don't really concern people much. Doing it commercially though -- that's asking for trouble.
It hasn't been a problem before, because it hasn't been terribly convenient to buy from overseas.
Sure it has. Canada and Mexico, just for a start. Really, a lot of stuff gets imported into the US.
At any rate, it's basically all solved. The EU is still coming together in certain respects, so we're seeing them have some difficulty here, but I don't see any developments generally along these lines in the foreseeable future.
However, I don't think that anyone would say that you should surrender your CDs when you travel overseas (and especially not when you *move* overseas).
Wanna bet?
On the other hand, if they only sell *from the US server*, then do they really need to license in each country?
Yes.
The artist will still get paid, right, whether the purchase comes from the US store or the UK store. Right?
No. The copyright holders might be different in different countries. It's not unusual to sell one's rights in something to different people domestically and abroad. Plus, copyright isn't (and shouldn't be) standard worldwide.
You should be allowed to buy from wherever the hell you please.
The problem being that this can undercut domestic policies. E.g. if you can buy from a country with no copyright law, then the copyright law in your own country becomes pretty worthless.
Thanks for that very long post, I'm sure you put a lot of work into it.
.torrent file actually has protected information in it.
Clearly you haven't seen my very long posts. That was nothing. Took a few minutes, tops.
You're correct, IF the
No, that would be a direct infringement.
To contribute to the direct infringement of another, one need only materially help someone else infringe, or encourage someone else to infringe.
Sony, for example, made VCRs and had manuals and ads describing what it was able to do. This was a material contribution. No one at all argues about that. They provided a significant part of the means by which infringement could take place. Sony escaped liability by way of not having enough knowledge to be liable.
There have been cases where the landlords that rent space to direct infringers been found liable since it's hard to distribute works without a stable place to do it from (distribution is a form of direct infringement) and the landlord knew of the infringement and didn't stop contributing to it by allowing the tenants to remain.
And ALL the landlord did was collect rent money.
This is how broadly this sort of thing can be applied. I'm sure you can see how vicarious infringement theories can be applied to a lot of people as well.
You can get hit with an infringement suit even if you never touched the actual copyrighted work in question. Just so long as you have the right kind of connection to someone that did.
You don't have to like it, but I think you'd be very stupid if you didn't try to find out precisely what the law actually is. At least so that you know when you are and are not breaking it so that you can make those decisions carefully. Putting your hands in your ears and closing your eyes and claiming that it's not true when it is doesn't help.
So, by my saying that there is a place on the web called suprnova.org, I've just contributed to the infringement of copyright? Should I be prosecuted for spreading information that someone might use illegally?
Maybe.
If that was a material contribution, there was a direct infringement, and you had actual or constructive knowledge of such infringement, then yes.
My favorite case on this -- because it's clearly written and tends to shock people; I don't actually like the holding -- is Intellectual Reserve v. Utah Lighthouse Ministry.
Basically website A posted a link to website B, knowing that website B had posted copyrighted documents in an infringing manner. Because people reading website A were encouraged to go to website B, and because reading the documents at website B would constitute an infringing reproduction of those documents, and because website A's owners knew of the infringement -- they were felt to be substantially likely to themselves be infringers.
N.b., you're more likely to be sued civilly than prosecuted criminally.
Of course, the bare statement that suprnova exists really wouldn't be sufficient. But saying something like 'You can download movies from suprnova' might. In the end, there are no magic words. Courts'll look at the character of what you said, your audience, etc. If you're a model citizen (e.g. a New York Times with an article about piracy since its' a newsworthy thing) then you'll probably avoid liability. If you appear disreputable (e.g. a 2600 posting links to suprnova and talking about how people ought to pirate movies and stick it to the man du jour) then you'll have a harder time. This is because in the latter case -- aside from not getting much sympathy because you seem like a bad guy -- there probably is a higher chance of material contribution.
For suprnova themselves -- they'd be toast. You can't possibly say that hosting torrent files is not a material contribution. They'd have to argue the knowledge angle as far as contributory liability goes. I think it would be hard.
This is why they're not in the US, IIRC. They wouldn't have a chance here.
Says the courts. Congress hasn't bothered to actually codify the doctrines, but they do appear to have endorsed them in various legislation.
FYI, this isn't unusual: The fair use doctrine was created by the courts back in 1841 and wasn't codified until the 1976 Act. The first sale doctrine was created in what, 1908, and was codified in the 1909 Act the next year. The work for hire doctrine appeared in US courts in the 19th century and also wasn't codified until 1909.
Anyway, read the decision here, where the relevant bit begins "Accordingly, we next address whether Napster is secondarily liable for the direct infringement under two doctrines of copyright law: contributory copyright infringement and vicarious copyright infringement."
It seemed a bit long to quote.
Of course, you could've just googled for contributory and vicarious copyright infringement and found plenty about this.
These are rather old doctrines and AFAIK no one has really challenged the basic idea, and certainly not successfully. The only fights tend to be whether there was a necessary direct infringement (for neither contributory nor vicarious infringement can exist where there is no underlying direct infringement) and whether the requirements for these indirect forms of infringement have been met.
For example, Sony won the famous Betamax case both by arguing that there were fewer direct infringements than had been claimed, and that they didn't have the level of knowledge required by the contributory infringement doctrine. OTOH they didn't say that the very idea of contributory infringement was a lot of crap, probably because that would not be a successful argument.
That doesn't matter.
Contributory infringement:
You infringe by hosting torrents if the hosting contributes to the direct infringement of another (i.e by helping them up/download, even at a remove), and you have knowledge of the direct infringement.
Vicarious infringement:
You infringe by hosting torrents if you have the right and ability to prevent the direct infringement of another (i.e. you can remove torrents) and you receive some financial benefit by the hosting (e.g. attracting people who see ads, or pay for access, etc.).
It doesn't matter if you're affiliated with other people who are involved.
Not particularly. Infringement cases are easy to make, and are not hard to get good injunctive relief and large damage awards from. This cures the infringement and deters future infringements.
So since you seem to like the idea of comparing infringement to theft, aren't property rights also meaningless when someone else has taken your property? Or do you think that, just as with copyrights, the enforcement of property rights by means of injunctive relief, damage awards, etc. is what makes them meaningful?
Well, first, if you wrote down what you thought the script of a movie was, and you had access to the original in some form (e.g. by having watched the movie) and there was some of the original in yours, then that would be infringing.
As for the torrents, they're not the copyrighted works themselves, but running a tracker is still probably contributory and vicarious infringement depending on the details of precisely how the tracker is being run, etc.
I mean, Napster didn't really do anything more than run a tracker that let users get together. And look what happened to them. Why do you think it can't happen to torrent sites?
You can do the same thing in software, and see the results as the desktop background.
Except that it doesn't so much. He still has the regular exclusive rights even when you infringe. If he didn't, there'd be nothing to infringe against!
No, that's still not quite right. If you steal something, not only do you deprive the rightful owner of it, you appropriate it for yourself or another. Thus, to steal a copyright, you'd have to end up with the exclusive right yourself. Clearly that doesn't happen.
It's an infringement, in that you are treading upon the exclusive right, which remains in the copyright holder. It's like trespassing -- it's not theft of land, but it is an affront to rights. Note that when the government censors people, we talk of infringement on first amendment rights. It's a similar deal.
So I think that there's nothing that can even be characterized as stealing going on. The closest fit is trespass, but why not just call it what it is: infringement. It's the correct term and it isn't loaded with invective that merely clouds the issue. It's something that we can still agree is illegal.
I am greedy for wanting to sell my work?
Yes. I don't mean to be harsh, however. I have no problem with people desiring payment, and in fact it's fairly useful in the copyright field in that this is basically how authors are manipulated. Don't misread greed as being bad. Too much might be, but an ordinary amount is likely okay. It's just a common human behavior, and it's a predictable and prevalent one.
I know many artists who base their total income on the work they produce.
I'm not sure what you mean here, due to work having multiple conflicting meanings. Do you mean that you know many artists, where their total income derives from their labor as artists? Or where their total income derives proximately from the sales of tangible objects embodying the creative products they have made?
Of course, I know many artists, and I too know that both are very common ways of deriving income. (Of course, just because one's total income springs from artistry doesn't mean you're supporting yourself from it, which is rather more important, I should think)
I personally used to be an artist for several years, and I supported myself entirely from my labor, but not from the fruits of my labor. Now I'm back in school.
Nevertheless, I would point out that while artists have, since time began, hired out their labor, and sold the fruits of their labor, the latter is only quite recently of interest as prior to copyright laws being enacted, while an artist might sell a copy of something, nothing much precluded anyone else from selling an identical copy. This resulted in a desirable state of competition where efficiencies in creating new copies were rapidly developed.
Your breathing air analogy sucks - I won't go into it any further.
Why? I caused the air to be created. I spent time creating the air. No one else has the particular packet of air I created. Why should other people be breathing it without my consent or at least compensating me?
The idea of the nominally valuable intangible property that's not treated like property was lifted from the old story of the poor man who lived above a bakery. He couldn't afford much food, but always felt more filled than he ought to since the scents from the bakery provided him comfort. The baker took him to court to get paid for this benefit. The wise judge agreed that the poor man had profited from the smell of the bread and hadn't paid for it. The judgment was to repay the baker with the sound of coins clinking together!
I think it's got some relevance here in that creative works are intangibles and tend to spread uncontrollably. They may benefit people, but it is not inevitable, nor historically common, that people would consider them to be of such import that the creator deserves reward as to these works as fruits of labor.
It is my property
No, it is not. I challenge you to show some support for this outrageous claim. Remember: a song is not the same thing as a tangible thing that embodies the song, and neither is the same thing as a copyright which pertains to the song.
Your views are naive to say the least.
That is of course a point of view. But I've been developing them for a number of years now, and you have failed to challenge them effectively, even though I'd like to see them further forced to prove themselves worthy or replaced with something better.
Piffle. No one is saying that Australia HAS to follow the US law. Only that the US law is, in this case, well thought out and convincing and a good idea which should be adopted in Australia on its own merits.
Don't go making mountains out of molehills. Particularly since the US has been doing this forever, and it's pretty common elsewhere too, and always has been.