The power to regulate interstate commerce is delegated to the United States. It is not also prohibited to the several states, so therefore they can regulate it as well to a certain degree, though the United States always has the last word based upon the commerce power and the supremecy clause. (See jurisprudence regarding the negative commerce clause)
The regulation of interstate commerce is not a right, it is a power. Therefore Amend. 9 is not relevant. Rather, you'd have to argue that there is a right to engage in unregulated interstate commerce that simply is not enumerated. Well, that might be, but since Congress expressly has the power to regulate it and there are no guarantees as to unregulated commerce generally, it doesn't seem to matter.
It's not perfect, but it's pretty solid. They've frequently been upheld in court.
Re:Disconnect and motivation
on
The Music Man
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· Score: 1
Creating an archive copy and using that is generally fair use.
To be honest, I'm not aware of much caselaw holding that. Just a sort of general presumption. Diamond made a small comment in dicta that space shifting might be a fair use. IIRC Napster felt that it might be, but that it wasn't going on in their circumstances.
However...it's still legal for you to make copies onto other people's blank media. It's still legal for you to make copies from borrowed originals. It's just not legal to transfer these copies.
In both cases, however, I think there is a colorable argument of distribution, but only due to courts' willingness to find distribution can occur where A makes a copy available to B for B to make a copy from. (this is why uploading is distribution, even though the uploader doesn't actually send a copy to the downloader; the downloader makes a new copy)
I'd have to think about it for a while before making any sort of guess as to which way it might go. It would be an interesting issue to see in court.
The bill is very bad, but the new 110 exemption is actually good. It makes NOTHING illegal. It only makes some things legal that either might be now, or aren't at all now. That's it.
So it disallows no technologies not already disallowed.
Nevertheless, protest the bill. All the other crap in it is very very bad.
It's a law that says I can do a thing but I cannot have a machine that does that thing for me. WTF?
That is not what the law says. You're misreading it just like virtually everyone else around here.
It merely says that under certain conditions certain activities are legal. It doesn't say that there are not other conditions under which those activities are also legal. It doesn't make anything that is legal now illegal.
All it does is 1) clarify that SOME stuff that is probably legal now is certainly legal, and 2) makes things that are illegal now certainly legal. Any exemption that can make things legal now, however, will remain in effect. Nothing is made illegal that is currently legal. Nothing.
That said, the bill is very bad, but this one bit is actually the only saving grace. Ironic that people would waste time bitching about the good part due to a complete misunderstanding of it. I'm concerned that this will reduce the strength of protests over the bill.
The new exemption doesn't even MENTION circumvention.
If circumvention -- which is illegal under the DMCA, which is already law -- is distinct from copyright such that copyright exemptions like 107 don't apply to it, then this doesn't allow it either.
If it is not distinct in that manner, then this would permit it just as 107 would.
Please do not make shit up in the future. 1201 et seq are yet another thing that is bad. And they have absolutely nothing whatsoever to do with this bill.
And in doing so will consider the spirit of the law. And the letter of the law is very, very broad.
If I have 13 random seconds of a song on my hard drive can the MPAA really make a case that I should have to pay a fine as if I was sharing the full and complete song? I don't think so.
Yes. And they've succeeded in doing so in the past.
If you did this, you would only have two hopes: 1) to claim that it is a de minimis use. Recently there was a decision that there was no de minimis exemption. (it is NOT present in the letter of the law) 2) To claim that it was a fair use, which involves the court studying your use for fairness, which is pretty much up to them. Congress at most only provided guidelines.
And I didn't compliment you. I was insulting you. When I said it was clever I was thinking of what the courts said in striking down clever attempts to discriminate against blacks when blatant attempts were being struck down. They said it didn't matter and that they could not be so easily fooled.
You have too high an opinion of yourself. It won't hold up if you ever were to try this silly sort of thing.
This bill does NOT tell people whether or not they can watch commercials. You aren't understanding what it actually does.
What it basically does is to say that edit decision lists for DVDs are legal to use and make and so forth where they don't block ads.
It doesn't say that they are illegal if they do. Only that they are not legal under THIS exemption. Other exemptions that are applicable now are still applicable.
If you understand a programming metaphor, think of an if statement:
Currently we have if(fair use){legal};else(){illegal};.
This merely adds another one so that we have if(new exempton){legal};elseif(fair use){legal};else(){illegal};.
It's meant to disallow technologies that bypass commercial and advertising content explicitly (such as things like the commercial skip features of old which skipped all ads, regardless of length, and returned you to the programming, or features that simply delete or auto-skip ad content altogether), but it won't prevent good ol' "fast forward" and 30 second skip features from working, nor will it make their use, even for commercial content, "criminal".
No, it doesn't do that either. It doesn't prohibit anything. 106 does that, if anything does. It just provides an exemption -- a limited one -- but an exemption. Certainly such conduct as people have been talking about is either illegal now, or is legal if it falls into a different exemption, such as 107. This doesn't alter 107.
So it either is ineffectual in that nothing more is exempted than would be anyway (but at least it is more clear, which is good), or it is beneficial in that things are exempted that wouldn't be exempt under 107. It is not bad in any way.
It's all the rest of the bill that is VERY bad.
As for advertising, I'm against it in all circumstances whatsoever. I hate ads and if I never see another one ever again unless I explicitly want to do just that, only then would I be happy.
But the part that gets all the attention -- the new exemption in 110 -- is actually good.
It doesn't make anything illegal. Just the opposite: things that are illegal now become legal, and things that are of unsure legality become certainly legal. If something still doesn't fall within the scope of the new exemption, then NOTHING CHANGES. This is because the current exemptions that such things might fall under are left alone.
So if skipping ads in time shifting is fair use now, and it doesn't fall into the new exemption, then it is still fair use -- if it ever was -- even if the bill passes.
So if y'all want to bitch about 2391, that's great, but at least bitch about the parts that are in fact bad. (i.e. pretty much the remainder of it)
I'm curious about this. I don't have much experience in court matters, but what's to stop them? They could just file the suit in court and I'd have to bring a lawyer to prove they didn't have copyright on it (Or maybe it's a lot easier to show that they don't have copyright on something?)
They need to show they do have sufficient rights to sue just to get into court.
If they lie about it, they and the lawyer can get sanctioned by the court, which is somewhat serious.
By and large, they're not going to go so far as to file a complaint unless they're pretty certain they have a leg to stand on. I wouldn't worry about being sued by them without standing.
1) Sue 'em all under a joint theory of res ipsa loquitur. Since it's fairly clear that at least one of them did it, and since it's not fair to make the plaintiff have to figure out which one, let them figure it out amongst themselves. (or each pay equal shares of the damages)
This is common for medical malpractice cases where the negligence of any of the persons treating the patient might have harmed him, but he doesn't know which one to finger. E.g. if they do surgery on you while you're unconscious and leave stuff in there by accident.
2) Sue the parents under alternative theories of direct, contributory, and vicarious liability. If they're the liable parties, it's easy. If the kids are, then the parents are arguably liable for what their kids did _if_ the elements of the contributory or vicarious theories are satisfied under that scenario. So it wouldn't matter, and the damages are the same.
Also you rely on the 5th too much. It's not really that broad.
It doesn't. It's just a clever method of breaking the law, but it's still breaking the law. No court would be stupid enough to not see such an obvious tactic for what it is.
It's actually a little more complicated than that. I could infringe on Disney's copyright by making my own Mickey Mouse cartoon from scratch.
It would still be based upon their cartoon.
To avoid copyright infringement, you need to independently create a work. This is possible, but it can be tricky to demonstrate, since if you had access to their work and your work is substantially similar (or more) to their work, infringement will usually be imputed.
Well, no. They're supposed to have been nonobvious at the time of invention. If the invention is really popular, everyone's going to think it was obvious in hindsight. But it probably wasn't.
Uh huh. The problem is that you can't go there personally because they don't let people over there as a rule. And what's key when you're getting sued is where you are, not where you'd like to be.
Not to mention that no one takes Sealand seriously and would bother respecting claims of sovereignty anyway.
Patents last either 17 years from when it was issued or 20 years from when it was filed. We switched from the former to the latter in the mid 90's and there's still some transitory effects. Plus there might be as much as an extra year or so, since you don't have to patent immediately.
To clarify, costumes aren't supposed to be copyrightable, and, in general, are not. By costumes, I was thinking of things like Cyclop's visor, or Batman's cowl and cape, etc. Those aren't copyrightable. You can't claim to own the idea of wearing a certain outfit. You can't claim to own the idea of wearing a visor over your eyes. You can't claim a Starfleet uniform is yours.
However, in a few cases, the courts have apparently upheld that graphics and whatnot that could be separated from the costume could be copyrighted.
I presume they're talking about, for example, Superman's S logo, which is a normally copyrightable work that is simply draw on his costume. You don't lose copyright protection that would exist if it wasn't on a costume. It doesn't stop someone from wearing a blue and red costume with a yellow M logo, though. Blue and red, obviously, are not copyrightable, nor is the concept of a letter in a shape.
You're right that you cannot copyright ideas.
But seperability means that the courts are going to see if they cannot make a distinction between the portions of the costume necessary for it to be useful as clothing, and the portions of the costume that are not. This can include seperating the overall design, and not merely emblems. In fact, you probably couldn't even register emblems due to the Copyright Office's stance that they're not copyrightable, but properly trademarked.
Likewise, it doesn't stop a Spiderman knockoff, because the concept of 'spiderwebbing on red' is not copyrightable...a specific pattern may be, but the odds of someone drawing that same pattern is rather low. (As the pattern can't be separated from the costume anyway, they might even be in the clear in that case. How do you flatten out a full body pattern? It has to be part of a costume!)
Oh you can seperate them. That's the problem. What does conceptual seperability actually mean? The courts have never settled on an answer. Some think it's as simple as whether we can imagine seperating two things where it is impractical to actually do so (imagine a sculpture that also served as a structural support -- you can't core it like an apple in real life, but it's clear that if you could, there'd be seperability). Others think that it depends on how the audience would perceive it, or what the artist was thinking at the time, and so forth.
It's a real pain in the ass, and one of those things that seems especially likely to get forum shopped.
Here I would point out that it's not hard to think of the pattern of the costume being removed from the cloth, leaving it undyed, or whatever.
Hey, you're right. I'd never heard of NTP v. Beck.
Go go Lexis.
Well, no, you're wrong, they still aren't copyrightable in general.
It varies depending on what jurisdiction you're in. No definitive statements could be made.
And both Intellectual Reserve and the Napster case were contribitory actions. No one was actually going after said 'memory copiers' for real.
That doesn't matter at all. The defendants still had to defend against the prima face case of the direct infringement, and they lost, and the argument is sound, tracing back to the MAI decision, which has been widely followed, and some of the video game cases in the 80's. The statutory language is extremely clear as to its breadth. Feel free to suggest a way around the claim that computer memory can constitute a copy or phonorecord; I'd like to see it since I don't much care for the entire line of precedents under MAI.
Intellectual Reserve is complete gibberish anyway. If any copy isn't transitory, it would be the one in the cache, not the one displaying in memory.
It only has to last long enough to be perceived, reproduced, etc. And when the user listens to audio on a computer, he is perceiving, via the computer, as a device, the contents of the memory.
And all this is stupid, because when you download something from a P2P network you don't copy it into memory, you copy it though memory, which is legal. Check RTC v. Netcom if you don't believe me. Bringing up memory copying is just silly.
Netcom didn't say that the activity there was not infringing. It said that the ISP wasn't to blame for it. The distinction is one of passivity; ISPs are not actively involved in what their users are doing, and therefore might escape liability. The same cannot be said of the end users of a P2P network. You need to reread Netcom.
Is asking them to make a copy of something they possess a violation of copyright law? Traditionally, no.
And the relevance of this is?
If I see a copy of Tarzan in the store, I'm allowed to purchase it without checking copyright ownership. I can just assume the producer of the copy has the right to copy it.
Sure. Because purchasing it couldn't infringe anyway. But other things you do might.
And while such assumptions as you make might be commonplace, remember that direct infringement is a matter of strict liability. It doesn't matter whether you lacked intent or knowledge. Merely infringing, no matter what your state of mind, is actionable.
Then A&M vs. Napster offhandly reversed 100 years of precendent in an unimportant comment about just how illegal Napster is.
What comment? Quote it and cite it, please.
then you can crow about how it's illegal
I'm hardly crowing. I don't like how expansive copyright law is. But I don't like misinformation about it either -- if people don't know just how bad it is, they won't push to change it. And if they don't know what it is, they'll tend to break it. I merely desire that people be better informed. Squashing erroneous statements is not only fun, it's managed to open eyes.
Re:Disconnect and motivation
on
The Music Man
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· Score: 1
Um...are you in some sort of universe where copying your own CDs isn't legal?
No, I'm in this universe, where it is merely potentially legal.
There are three ways to legally reproduce a CD of music that you own.
1) If it is in the public domain.
2) If it is copyrighted, but no one has dominant rights over you (e.g. you're the copyright holder), or you have permission from such a person.
3) If an exemption applies, such as 17 USC 1008 or 107 or the like. But whether they do or not depends on a number of different factors. Some are broad and some are narrow, and some are totally dependent on the circumstances and defy blanket statements. But oft-times no exemption will apply.
It would normally be legal to copy a CD onto a CD-R for your own purposes anyway. Creating an archive copy and using that instead of an original is generally considered fair use, although I don't think it's explicited stated for anywhere but software.
The 117 exemption isn't a fair use, it's a statutory exemption. Fair use is the exemption that depends entirely on the circumstances. Just because it might be a fair use for you to reproduce one CD doesn't mean that it will be a fair use for another person to reproduce another CD. You cannot truthfully say that any class of use, etc. is invariably a fair use, because that cannot be determined. Courts will have to look at the facts on a case by case basis.
Now, I do think that it is likely that where an individual rips CDs that they own, and where they remain in ownership and possession of the originals and the ripped copies, and that it is purely for personal uses, that it is a fair use.
But it's impossible to say that it is always a fair use. The specific circumstances in a case might be such that it's infringing after all -- in that one case.
And I don't know in what universe there's a difference between a legal copy, and a copy that no one can say is illegal. No one can shop up in court claiming infringement, and thus, since I haven't infringed copyrights until proven so in court, I haven't infringed copyrights. Duh.
The statute clearly says "[n]o action may be brought under this title alleging infringement of copyright... based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings."
So if I sue you based on the MAKING of the qualifying recording, then the suit must be dismissed.
BUT if I sue you based on the DISTRIBUTION of such a copy after it has been made, then 1008 is not applicable by its own terms. This is because the exclusive right of reproduction, and the exclusive right of distribution are seperate, and I don't have to sue on both together; as plaintiff, I can generally pick my causes of action.
You're trying to invent a category where I've broken the law, but it's impossible to take me to court. Well...no such legal category exists. If I haven't been to court, I haven't broken the law, legally. There's no middle ground.
No, not at all. This is a common situation, in fact. Probably the most well known one is where someone breaks the law and flees the jurisdiction to a place from whence he cannot be extradited. That he broke the law is plain, but he can't be pulled into court.
The mere fact that someone has not been found guilty or liable does not mean that they have not broken the law. It means that they cannot be punished.
Another fun example is the doctrine of sovereign immunity. You cannot sue a government in its own courts unless it consents to it. And sometimes this is a bit broader -- for example due to the 11th Amendment, an individual cannot sue a state for copyright infringement without that state's consent, due to a limitation imposed on the federal judicial power. This issue (regarding patent infringement, which is similar enough for our purposes here) went to the Supreme Court and they held that the state simply could not be forced into court
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That's a very bizarre reading.
The power to regulate interstate commerce is delegated to the United States. It is not also prohibited to the several states, so therefore they can regulate it as well to a certain degree, though the United States always has the last word based upon the commerce power and the supremecy clause. (See jurisprudence regarding the negative commerce clause)
The regulation of interstate commerce is not a right, it is a power. Therefore Amend. 9 is not relevant. Rather, you'd have to argue that there is a right to engage in unregulated interstate commerce that simply is not enumerated. Well, that might be, but since Congress expressly has the power to regulate it and there are no guarantees as to unregulated commerce generally, it doesn't seem to matter.
There's the ProCD case, which is the leading case.
Hill and the bnetd case are good examples of cases that follow ProCD.
Not all courts have followed ProCD, but the pro-EULA side is, if not winning, at least not losing.
It's not perfect, but it's pretty solid. They've frequently been upheld in court.
Creating an archive copy and using that is generally fair use.
To be honest, I'm not aware of much caselaw holding that. Just a sort of general presumption. Diamond made a small comment in dicta that space shifting might be a fair use. IIRC Napster felt that it might be, but that it wasn't going on in their circumstances.
However...it's still legal for you to make copies onto other people's blank media. It's still legal for you to make copies from borrowed originals. It's just not legal to transfer these copies.
In both cases, however, I think there is a colorable argument of distribution, but only due to courts' willingness to find distribution can occur where A makes a copy available to B for B to make a copy from. (this is why uploading is distribution, even though the uploader doesn't actually send a copy to the downloader; the downloader makes a new copy)
I'd have to think about it for a while before making any sort of guess as to which way it might go. It would be an interesting issue to see in court.
Christ, no. Stop saying that; it isn't true.
The bill is very bad, but the new 110 exemption is actually good. It makes NOTHING illegal. It only makes some things legal that either might be now, or aren't at all now. That's it.
So it disallows no technologies not already disallowed.
Nevertheless, protest the bill. All the other crap in it is very very bad.
It's a law that says I can do a thing but I cannot have a machine that does that thing for me. WTF?
That is not what the law says. You're misreading it just like virtually everyone else around here.
It merely says that under certain conditions certain activities are legal. It doesn't say that there are not other conditions under which those activities are also legal. It doesn't make anything that is legal now illegal.
All it does is 1) clarify that SOME stuff that is probably legal now is certainly legal, and 2) makes things that are illegal now certainly legal. Any exemption that can make things legal now, however, will remain in effect. Nothing is made illegal that is currently legal. Nothing.
That said, the bill is very bad, but this one bit is actually the only saving grace. Ironic that people would waste time bitching about the good part due to a complete misunderstanding of it. I'm concerned that this will reduce the strength of protests over the bill.
Where the fuck are you getting that crap from?
The new exemption doesn't even MENTION circumvention.
If circumvention -- which is illegal under the DMCA, which is already law -- is distinct from copyright such that copyright exemptions like 107 don't apply to it, then this doesn't allow it either.
If it is not distinct in that manner, then this would permit it just as 107 would.
Please do not make shit up in the future. 1201 et seq are yet another thing that is bad. And they have absolutely nothing whatsoever to do with this bill.
The courts have to follow the letter of the law.
And in doing so will consider the spirit of the law. And the letter of the law is very, very broad.
If I have 13 random seconds of a song on my hard drive can the MPAA really make a case that I should have to pay a fine as if I was sharing the full and complete song? I don't think so.
Yes. And they've succeeded in doing so in the past.
If you did this, you would only have two hopes: 1) to claim that it is a de minimis use. Recently there was a decision that there was no de minimis exemption. (it is NOT present in the letter of the law) 2) To claim that it was a fair use, which involves the court studying your use for fairness, which is pretty much up to them. Congress at most only provided guidelines.
And I didn't compliment you. I was insulting you. When I said it was clever I was thinking of what the courts said in striking down clever attempts to discriminate against blacks when blatant attempts were being struck down. They said it didn't matter and that they could not be so easily fooled.
You have too high an opinion of yourself. It won't hold up if you ever were to try this silly sort of thing.
This bill does NOT tell people whether or not they can watch commercials. You aren't understanding what it actually does.
What it basically does is to say that edit decision lists for DVDs are legal to use and make and so forth where they don't block ads.
It doesn't say that they are illegal if they do. Only that they are not legal under THIS exemption. Other exemptions that are applicable now are still applicable.
If you understand a programming metaphor, think of an if statement:
Currently we have if(fair use){legal};else(){illegal};.
This merely adds another one so that we have if(new exempton){legal};elseif(fair use){legal};else(){illegal};.
Clearer?
It's meant to disallow technologies that bypass commercial and advertising content explicitly (such as things like the commercial skip features of old which skipped all ads, regardless of length, and returned you to the programming, or features that simply delete or auto-skip ad content altogether), but it won't prevent good ol' "fast forward" and 30 second skip features from working, nor will it make their use, even for commercial content, "criminal".
No, it doesn't do that either. It doesn't prohibit anything. 106 does that, if anything does. It just provides an exemption -- a limited one -- but an exemption. Certainly such conduct as people have been talking about is either illegal now, or is legal if it falls into a different exemption, such as 107. This doesn't alter 107.
So it either is ineffectual in that nothing more is exempted than would be anyway (but at least it is more clear, which is good), or it is beneficial in that things are exempted that wouldn't be exempt under 107. It is not bad in any way.
It's all the rest of the bill that is VERY bad.
As for advertising, I'm against it in all circumstances whatsoever. I hate ads and if I never see another one ever again unless I explicitly want to do just that, only then would I be happy.
It IS a bad bill.
But the part that gets all the attention -- the new exemption in 110 -- is actually good.
It doesn't make anything illegal. Just the opposite: things that are illegal now become legal, and things that are of unsure legality become certainly legal. If something still doesn't fall within the scope of the new exemption, then NOTHING CHANGES. This is because the current exemptions that such things might fall under are left alone.
So if skipping ads in time shifting is fair use now, and it doesn't fall into the new exemption, then it is still fair use -- if it ever was -- even if the bill passes.
So if y'all want to bitch about 2391, that's great, but at least bitch about the parts that are in fact bad. (i.e. pretty much the remainder of it)
ProCD is the leading case for upholding EULAs. There are a number of others but they generally follow this one.
I'm curious about this. I don't have much experience in court matters, but what's to stop them? They could just file the suit in court and I'd have to bring a lawyer to prove they didn't have copyright on it (Or maybe it's a lot easier to show that they don't have copyright on something?)
They need to show they do have sufficient rights to sue just to get into court.
If they lie about it, they and the lawyer can get sanctioned by the court, which is somewhat serious.
By and large, they're not going to go so far as to file a complaint unless they're pretty certain they have a leg to stand on. I wouldn't worry about being sued by them without standing.
Nah.
Two solutions are immediately apparent.
1) Sue 'em all under a joint theory of res ipsa loquitur. Since it's fairly clear that at least one of them did it, and since it's not fair to make the plaintiff have to figure out which one, let them figure it out amongst themselves. (or each pay equal shares of the damages)
This is common for medical malpractice cases where the negligence of any of the persons treating the patient might have harmed him, but he doesn't know which one to finger. E.g. if they do surgery on you while you're unconscious and leave stuff in there by accident.
2) Sue the parents under alternative theories of direct, contributory, and vicarious liability. If they're the liable parties, it's easy. If the kids are, then the parents are arguably liable for what their kids did _if_ the elements of the contributory or vicarious theories are satisfied under that scenario. So it wouldn't matter, and the damages are the same.
Also you rely on the 5th too much. It's not really that broad.
I don't know if this circumvents any laws or not.
It doesn't. It's just a clever method of breaking the law, but it's still breaking the law. No court would be stupid enough to not see such an obvious tactic for what it is.
It's actually a little more complicated than that. I could infringe on Disney's copyright by making my own Mickey Mouse cartoon from scratch.
It would still be based upon their cartoon.
To avoid copyright infringement, you need to independently create a work. This is possible, but it can be tricky to demonstrate, since if you had access to their work and your work is substantially similar (or more) to their work, infringement will usually be imputed.
Yeah, only problem is most EULAs are unenforceable in courts of law due to their implementation.
Oh? And what fatal defect do they suffer from?
I ask because most courts asked to enforce EULAs do so. It's pretty rare for them not to, though it's happened once in a while.
Well, no. They're supposed to have been nonobvious at the time of invention. If the invention is really popular, everyone's going to think it was obvious in hindsight. But it probably wasn't.
Uh huh. The problem is that you can't go there personally because they don't let people over there as a rule. And what's key when you're getting sued is where you are, not where you'd like to be.
Not to mention that no one takes Sealand seriously and would bother respecting claims of sovereignty anyway.
It's not that easy yet.
Patents last either 17 years from when it was issued or 20 years from when it was filed. We switched from the former to the latter in the mid 90's and there's still some transitory effects. Plus there might be as much as an extra year or so, since you don't have to patent immediately.
It's still safest to run a search.
To clarify, costumes aren't supposed to be copyrightable, and, in general, are not. By costumes, I was thinking of things like Cyclop's visor, or Batman's cowl and cape, etc. Those aren't copyrightable. You can't claim to own the idea of wearing a certain outfit. You can't claim to own the idea of wearing a visor over your eyes. You can't claim a Starfleet uniform is yours.
However, in a few cases, the courts have apparently upheld that graphics and whatnot that could be separated from the costume could be copyrighted.
I presume they're talking about, for example, Superman's S logo, which is a normally copyrightable work that is simply draw on his costume. You don't lose copyright protection that would exist if it wasn't on a costume. It doesn't stop someone from wearing a blue and red costume with a yellow M logo, though. Blue and red, obviously, are not copyrightable, nor is the concept of a letter in a shape.
You're right that you cannot copyright ideas.
But seperability means that the courts are going to see if they cannot make a distinction between the portions of the costume necessary for it to be useful as clothing, and the portions of the costume that are not. This can include seperating the overall design, and not merely emblems. In fact, you probably couldn't even register emblems due to the Copyright Office's stance that they're not copyrightable, but properly trademarked.
Likewise, it doesn't stop a Spiderman knockoff, because the concept of 'spiderwebbing on red' is not copyrightable...a specific pattern may be, but the odds of someone drawing that same pattern is rather low. (As the pattern can't be separated from the costume anyway, they might even be in the clear in that case. How do you flatten out a full body pattern? It has to be part of a costume!)
Oh you can seperate them. That's the problem. What does conceptual seperability actually mean? The courts have never settled on an answer. Some think it's as simple as whether we can imagine seperating two things where it is impractical to actually do so (imagine a sculpture that also served as a structural support -- you can't core it like an apple in real life, but it's clear that if you could, there'd be seperability). Others think that it depends on how the audience would perceive it, or what the artist was thinking at the time, and so forth.
It's a real pain in the ass, and one of those things that seems especially likely to get forum shopped.
Here I would point out that it's not hard to think of the pattern of the costume being removed from the cloth, leaving it undyed, or whatever.
Hey, you're right. I'd never heard of NTP v. Beck.
Go go Lexis.
Well, no, you're wrong, they still aren't copyrightable in general.
It varies depending on what jurisdiction you're in. No definitive statements could be made.
And both Intellectual Reserve and the Napster case were contribitory actions. No one was actually going after said 'memory copiers' for real.
That doesn't matter at all. The defendants still had to defend against the prima face case of the direct infringement, and they lost, and the argument is sound, tracing back to the MAI decision, which has been widely followed, and some of the video game cases in the 80's. The statutory language is extremely clear as to its breadth. Feel free to suggest a way around the claim that computer memory can constitute a copy or phonorecord; I'd like to see it since I don't much care for the entire line of precedents under MAI.
Intellectual Reserve is complete gibberish anyway. If any copy isn't transitory, it would be the one in the cache, not the one displaying in memory.
It only has to last long enough to be perceived, reproduced, etc. And when the user listens to audio on a computer, he is perceiving, via the computer, as a device, the contents of the memory.
And all this is stupid, because when you download something from a P2P network you don't copy it into memory, you copy it though memory, which is legal. Check RTC v. Netcom if you don't believe me. Bringing up memory copying is just silly.
Netcom didn't say that the activity there was not infringing. It said that the ISP wasn't to blame for it. The distinction is one of passivity; ISPs are not actively involved in what their users are doing, and therefore might escape liability. The same cannot be said of the end users of a P2P network. You need to reread Netcom.
Is asking them to make a copy of something they possess a violation of copyright law? Traditionally, no.
And the relevance of this is?
If I see a copy of Tarzan in the store, I'm allowed to purchase it without checking copyright ownership. I can just assume the producer of the copy has the right to copy it.
Sure. Because purchasing it couldn't infringe anyway. But other things you do might.
And while such assumptions as you make might be commonplace, remember that direct infringement is a matter of strict liability. It doesn't matter whether you lacked intent or knowledge. Merely infringing, no matter what your state of mind, is actionable.
Then A&M vs. Napster offhandly reversed 100 years of precendent in an unimportant comment about just how illegal Napster is.
What comment? Quote it and cite it, please.
then you can crow about how it's illegal
I'm hardly crowing. I don't like how expansive copyright law is. But I don't like misinformation about it either -- if people don't know just how bad it is, they won't push to change it. And if they don't know what it is, they'll tend to break it. I merely desire that people be better informed. Squashing erroneous statements is not only fun, it's managed to open eyes.
Um...are you in some sort of universe where copying your own CDs isn't legal?
... based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings."
No, I'm in this universe, where it is merely potentially legal.
There are three ways to legally reproduce a CD of music that you own.
1) If it is in the public domain.
2) If it is copyrighted, but no one has dominant rights over you (e.g. you're the copyright holder), or you have permission from such a person.
3) If an exemption applies, such as 17 USC 1008 or 107 or the like. But whether they do or not depends on a number of different factors. Some are broad and some are narrow, and some are totally dependent on the circumstances and defy blanket statements. But oft-times no exemption will apply.
It would normally be legal to copy a CD onto a CD-R for your own purposes anyway. Creating an archive copy and using that instead of an original is generally considered fair use, although I don't think it's explicited stated for anywhere but software.
The 117 exemption isn't a fair use, it's a statutory exemption. Fair use is the exemption that depends entirely on the circumstances. Just because it might be a fair use for you to reproduce one CD doesn't mean that it will be a fair use for another person to reproduce another CD. You cannot truthfully say that any class of use, etc. is invariably a fair use, because that cannot be determined. Courts will have to look at the facts on a case by case basis.
Now, I do think that it is likely that where an individual rips CDs that they own, and where they remain in ownership and possession of the originals and the ripped copies, and that it is purely for personal uses, that it is a fair use.
But it's impossible to say that it is always a fair use. The specific circumstances in a case might be such that it's infringing after all -- in that one case.
And I don't know in what universe there's a difference between a legal copy, and a copy that no one can say is illegal. No one can shop up in court claiming infringement, and thus, since I haven't infringed copyrights until proven so in court, I haven't infringed copyrights. Duh.
The statute clearly says "[n]o action may be brought under this title alleging infringement of copyright
So if I sue you based on the MAKING of the qualifying recording, then the suit must be dismissed.
BUT if I sue you based on the DISTRIBUTION of such a copy after it has been made, then 1008 is not applicable by its own terms. This is because the exclusive right of reproduction, and the exclusive right of distribution are seperate, and I don't have to sue on both together; as plaintiff, I can generally pick my causes of action.
You're trying to invent a category where I've broken the law, but it's impossible to take me to court. Well...no such legal category exists. If I haven't been to court, I haven't broken the law, legally. There's no middle ground.
No, not at all. This is a common situation, in fact. Probably the most well known one is where someone breaks the law and flees the jurisdiction to a place from whence he cannot be extradited. That he broke the law is plain, but he can't be pulled into court.
The mere fact that someone has not been found guilty or liable does not mean that they have not broken the law. It means that they cannot be punished.
Another fun example is the doctrine of sovereign immunity. You cannot sue a government in its own courts unless it consents to it. And sometimes this is a bit broader -- for example due to the 11th Amendment, an individual cannot sue a state for copyright infringement without that state's consent, due to a limitation imposed on the federal judicial power. This issue (regarding patent infringement, which is similar enough for our purposes here) went to the Supreme Court and they held that the state simply could not be forced into court
Does motion picture mean TV programs as well?
Yes, it's very broadly defined in 17 USC 101.
I would say that it would have damaging effects on all video editing software.
It will have no damaging effects whatsoever. You aren't understanding what it does.
Wrong. Read the definition of 'motion picture' in 17 USC 101. A lot of terms in laws have unusual meanings. Definition sections help a lot.