Not entirely. Even if all cases under a particular law would be open and shut, they can still be too penny-ante to be worth bothering about. Who the hell seriously enforces a class Z felony unless it's only because it's all that you can make stick on someone you want to get anyway? Very minor illegal acts tend to get ignored; they could be pursued, but as a class often aren't.
That's disputable. Courts have found in the past that it was not licensed. And licensure flies in the face of copyright law and perhaps ought to be barred on such grounds as abusive.
Besides -- fair use exists even in the absence of all other relationships, and can protect against even otherwise gross infringements. IF you qualify for fair use under the particular circumstances involved.
Well the problem here is that in the US virtually all possible cases are never brought. Those that begin to get anywhere are almost always dropped or settled out of court. Only a teeny tiny fraction of cases ever make it to court to begin with. Of those that are suitable for jury resolution, a fair number could go either way. If they can't, the judge will issue a summary judgment that will stand on appeal.
There really is not a big problem in the US with frivolous suits; it's mostly hype, in part stirred up by deep pocket repeat defendants, often insurance companies.
I'm curious about the criminal definition of IP Theft and Infringement. It has always been my stance that such items, within reason, should be a matter settled in a civil suit. It is extremely difficult to deprive a party of intellectual property, unlike tangible property. With this in mind, I don't feel there is truly a need for an IP Theft/Infringmenet branch in the Department of Justice.
I don't really agree with how you said that.
IP is just a collection of bodies of law, and infringement of some of them is not criminal. Nor is it theft.
What we're asking here is basically whether copyright infringement should be criminalized. And I am asking this. It didn't seem to be important, as far as I can tell, for the first century of the Republic to treat infringement as anything other than a civil matter. If I recall correctly it was not a federal crime until 1897.
Do you think that it is a matter that needs to be criminalized? There are certainly a lot of higher priority crimes out there, and the various industry associations et al are out there all the time suing direct, contributory, and vicarious infringers. Not merely the Napsters of the world, but also music and video pirates (including those offline), and even small time trademark infringers printing up illegal t-shirts. And it is frankly silly to imagine the FBI arresting and the federal government prosecuting someone for building a structure in a manner that infringes on an architect's copyright. But they can.
Why the need then for criminal enforcement? There is no parallel in the world of patents or trademarks as far as I know.
My other question would be:
What reforms, if any, do you think are needed for copyright law; this can include increasing or reducing protection or even the scope of copyright, additional or fewer formalities as a prerequisite for protection, further implementing or leaving international treaties, etc. It can also include revising the code to take care of further developments -- e.g. that 17 USC 511 is bad law after the Seminole Tribe line of cases. If you're concerned about the likelihood of reforms, feel free to address that, but do so seperately, since I'd still like to see what it is that you feel would be ideal.
Losing HARDLY means that your case never should have gone to court. Only in an egregious case is that true. The truth is that most cases could turn out either way. If a jury could reasonably decide in favor of either party, perhaps you don't want the case brought out of a desire to not backlog the courts, but it was nevertheless a valid dispute. And when judges could go either way, and various levels of the courts reverse themselves, and the appellate votes are split, there is DEFINATELY a valid case. Besides which, unless the case is pretty egregious, and really never had any chance at all, how are the parties supposed to have such great legal minds as to know how things will turn out in advance?
No offense, but your dad seems to have more of a black and white of a view of things than seems healthy for a lawyer.
Feh. The LCD screen is not particularly impressive. Ancient Palms had better screens. I disliked the Zen enough to return mine to the store. Not enough codec support, not enough metadata support, crappy ass program to put music onboard, and a lousy UI.
Maybe the iPod is better, but having done my own work on mp3 players (canceled before production, the bastards) I have very high expectations.
Very nice, but it basically requires the complicity of his assignees. There are very real limits to how much control people can exert after death. For example, there's not a whole lot of property held in fee tail anymore.
I'm kind of inclined to think that it's not possible. Instead we might be better off just concealing the site.
I say this because I can't help but think of how many tombs have been robbed regardless of warnings to keep out. In fact, we usually think of it as stupid superstition and proceed headlong.
That would be bad at Yucca of course, because for once the curse -- that people will get sick and die due to invisible forces -- is true.
Yeah, but the Court gave Congress a way out; all they have to do is get the EU to extend again, since harmonization seems to be a valid reason for extensions.
Damned if I can figure out why. Harmonization is such bullshit.
A) Why did you get that copyright? Who gave it to you, for what purpose?
B) No, you only get to decide up to the time of the expiration of the copyright. Plus there are limits even during the term. People can parody your song, or make and distribute copies if it falls within fair use, which is always possible. At worst, as soon as the term expires, the publishing company DOES get to make that decision, and there's fuck all you can do about it. (although given the current term, you'd be long dead, also throwing a wrench into your ability to stop such later use)
It's a funny post, but there is no Article III, Section 4 in the US Constitution. You might have at least pointed to a different part that would have made it funny for anyone that looked it up, not knowing that the Fair Use doctrine didn't even exist in 1789, is judicial, and as statute is in 17 USC 107.
Why do you think that copyrights necessarily are reducable to commercial value.
While I agree that they're not entirely so reducable, that argument IMO only helps the public -- not artists. Moral rights are bullshit.
I could write a song to a lover, and want only that lover to ever hear it. If evile corporation N comes along and wants to make it into a commercial success, do they have the right to take it away from me?
Then how did they hear it?
If you want something kept private, you should have kept it private. But if it is going to be public then you ARE going to lose control. Because no one cares what you want. The public wants your music and by God, sooner or later they will GET it. And if you don't like it, but you let it get out in the world, then tough cookies. The best you can do at that point is cut your losses by making a buck.
Nothing immediate perhapse. But if others started using his image in wholly un-family oriented ways, they MAY have to drop him because of the new associations. Considering that it is THEIR character, why should they even have to take that chance?
Disney has closely associated itself with characters that are undeniably in the public domain. I can make unwholesome uses of Cinderella, Snow White, Sleeping Beauty, Peter Pan, Aladdin, etc. In fact, IIRC, Anne Rice has a head start on this.
It is a risk. But we don't live in a society that is ruled by Disney, I'd hope. We have a right to change public perception; look at what happened to Disney's "The Song of the South" (based on the public domain Uncle Remus stories).
I doubt that would happen to Mickey, but there's nothing wrong with it if it does.
And how is inventing a character but not allowing just any person to do anything they want with it, without permission, "Screwing the American public?" How? In what way? In what possible, even infinitessimal way? Does it limit other people from coming up with their OWN mouse characters? No... Then how?
It does prevent you from coming up with your own; enough protection is never enough. People are greedy. And by people, I mean copyright holders. They'll push and push to make their copyrights more expansive. They'll at least TRY to prevent people from creating their own mouse characters. After all, they have nothing to lose by trying, and might gain a great deal.
For example, parodies are generally protected, but this doesn't stop copyright holders from suing parodists all the time. See the cases of "Pretty Woman" and "The Wind Done Gone."
Furthermore, it prevents us from using those characters as they actually are. Why SHOULDN'T we get to use them? Storytellers from time immemorable have reused characters and plots and situations. It's a technique to use them, and to bank on people's familiarity with them to help tell a story. For example, there are a set of stock characters in opera. When you see Scaramouche on stage, you know what he's going to do. It helps move things along. And it's perfectly valid.
I could create new Mickey Mouse animations. I'd like to; if the case had been decided correctly, I already would be! And one of the goals of copyright is to spur the creation of stories. Original or derivative DOESN'T MATTER. (and if it did, where'd Disney get the copyrights from on all of their fairy tale movies?)
What's really ironic is that Disney has NOT used Mickey Mouse significantly since I can't remember. He acquired too much of a goody-goody reputation early on to be genuinely appealing; hence the rise of Goofy and Donald, who are somewhat more flawed characters.
This is another example of pure selfishness, and not on the part of Disney, but on YOUR part.
So? You don't get the fundementals of copyright, do you?
It is a bargain.
The public wants things: they want origianl works, they want derivative works, and they want them for free, and they want to do anything they want with them, be it using them, copying them, or making new works based off of them.
Authors want one thing: they want money. If they have other motivations, they're not very relevant. Copyright only gives authors a chance to make money. If you want to do art for arts' sake, you don't need a copyright to motivate you. And if you could get enough money to motivate you without a copyright, you don't really need it either.
The idea is, that the public will not grant a copyright unless it will be better off doing so than not doing so. And as history shows, there will always be SOME creation going on. So any copyright system has to benefit the public more than without it.
Does the public care about artists? No, not really. They do benefit insofar as they're PART of the public anyway. But we don't have their best interests in mind. That's why the Constitution reads "to promote the progress of [knowledge]" and not
Far future? I'll probably happen no later than 2015. That's not _that_ far. Of course, I don't know if J. Breyer will still be on the bench then, and it was he who really understood why Congress shouldn't be able to do what they did.
I don't get the paper here, but I also heard about this. Wasn't hard, I live in Collingswood, the neighboring town, and I go to Oaklyn pretty frequently.
So it's nice to see local boys make the national news.;)
I think that it might indeed just be a Canadian thing. We're getting worse all the time in the states, but that's a new one on me. And like I said, I can't find any US cases involving that, or information about it in Nimmer.
How? The layout of the traces is determined by its function, and it's pretty damn well arguably sculptural copyrightable subject matter, not literary. The utility doctrine should kick in -- and I have my doubts that the traces are seperable. As for what artwork is, unless you're talking about someone airbrushing a picture on there to boot, which I've never seen, I can't imagine what you mean.
A quick Lexis search didn't reveal any cases, and I didn't see anything in Nimmer either.
Tell you what, would you mind providing some citations?
What about rewarding innovation? Allowing inventors and creators to profit from their work before it goes to the people?
Copyright isn't primarily concerned with either of those things. They're nice to do, all else being equal, but neither is the point. Rewarding the public is the goal; the rest is secondary.
it's somehow our right to have the maximum quality possible
No, but OTOH why should we bother granting a copyright to something that's so shoddy? One of the aspects of rewarding the public is that the work should survive. This means high quality, and it means that it should be widely usable. After all, think of the long term: will it remain usable a hundred years from now, if someone is interested in using it? We have sculpture and paintings and movies and sound recordings and literature that are that old. Some are many thousands of years old. But it's not unusual for such works to only barely survive at times. We know of numerous works that have been lost over the ages. It would be decidedly good to have them. Something that is low quality and difficult to copy around does not have a good chance at seriously long term survival. Better, more easily copiable copies, and even some designed for serious longevity, should be required as part of the copyright bargain; that that's what artists do in order for us to give them protection. This isn't a novel idea, it's just one that needs to be pursued once more.
My argument is more along UCC lines. If it wasn't presented initially -- there's more detail in the argument than this, but this is the short version -- it isn't valid. A 'hole' of sorts is made for warranties in that the standard warranty might apply, but if specifically offered warranties are utilized by the buyer, then limitations that accompany that might come into play. Warranties are hard to disclaim anyway though.
Well, one is legal to copy music with even if you don't own a copy. The other requires you to make a fair use argument, and that's by no means clear in all situations.
There's no technical reason though, if that's what you're asking.
Computer software is different, because you almost always have to copy software at least once to make use of it (from the media to the computer).
So what? Such copies may not be fixed. Copyright holders are granted in 17 USC 106 an exclusive right to make copies of their copyrighted works. 17 USC 101 defines a copy as being a material object in which a work is fixed, and from which it can be perceived directly or via a machine.
Well, what if I deliver an extemporaneous speech orally? Is it fixed? Perhaps, if you consider that I am altering the configuration of air molecules in my vicinity in such a way that my words are fixed in it. It doesn't last, but then, what does? Even books and stone tablets wear out. My ice sculptures sure don't last too long, but they're copyrightable subject matter. And this configuration of air is perceivable by you, and you can understand the work that I've placed there.
But it's a stupid argument. Sound carried over the air is not enough to be fixed.
Well, when I copy information into volatile RAM, it lasts for a mere instant. Nanoseconds. The sounds in air actually last LONGER.
The only reason that the RAM manages to be useful is because that information is recopied again, and again, and again, many millions of times a second. But if that were enough to constitute fixation, what if I decided to play 'telephone' with my speech, and several people recited it to one another for a while.
The notion that copies in RAM are copies for the purposes of copyright law is stupid. Congress knows this. The legislative history for the Act says: "On the other hand, the definition of 'fixation' would exclude from the concept purely evanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a television or other cathode ray tube, or captured momentarily in the 'memory' of a computer."
Computer software is different, because you almost always have to copy software at least once to make use of it (from the media to the computer).
So what?
Check out 17 USC 117, which makes copying software to a computer in any way necessary for its use, or for backup purposes as desired, perfectly legal and not an infringement at all.
It's also different, because software (both shrinkwrap and Free) is traditionally shipped with a license in some form you can see and read.
That doesn't necessarily mean that the license is valid or enforcable. I'd argue that licenses generally are not, at least of the EULA variety.
Slashdot Mirror
Recording songs off the radio is legal. So are mix tapes if you own a copy of the music to begin with.
Not entirely. Even if all cases under a particular law would be open and shut, they can still be too penny-ante to be worth bothering about. Who the hell seriously enforces a class Z felony unless it's only because it's all that you can make stick on someone you want to get anyway? Very minor illegal acts tend to get ignored; they could be pursued, but as a class often aren't.
That's disputable. Courts have found in the past that it was not licensed. And licensure flies in the face of copyright law and perhaps ought to be barred on such grounds as abusive.
Besides -- fair use exists even in the absence of all other relationships, and can protect against even otherwise gross infringements. IF you qualify for fair use under the particular circumstances involved.
So it's still available even with licensure.
Well the problem here is that in the US virtually all possible cases are never brought. Those that begin to get anywhere are almost always dropped or settled out of court. Only a teeny tiny fraction of cases ever make it to court to begin with. Of those that are suitable for jury resolution, a fair number could go either way. If they can't, the judge will issue a summary judgment that will stand on appeal.
There really is not a big problem in the US with frivolous suits; it's mostly hype, in part stirred up by deep pocket repeat defendants, often insurance companies.
I'm curious about the criminal definition of IP Theft and Infringement. It has always been my stance that such items, within reason, should be a matter settled in a civil suit. It is extremely difficult to deprive a party of intellectual property, unlike tangible property. With this in mind, I don't feel there is truly a need for an IP Theft/Infringmenet branch in the Department of Justice.
I don't really agree with how you said that.
IP is just a collection of bodies of law, and infringement of some of them is not criminal. Nor is it theft.
What we're asking here is basically whether copyright infringement should be criminalized. And I am asking this. It didn't seem to be important, as far as I can tell, for the first century of the Republic to treat infringement as anything other than a civil matter. If I recall correctly it was not a federal crime until 1897.
Do you think that it is a matter that needs to be criminalized? There are certainly a lot of higher priority crimes out there, and the various industry associations et al are out there all the time suing direct, contributory, and vicarious infringers. Not merely the Napsters of the world, but also music and video pirates (including those offline), and even small time trademark infringers printing up illegal t-shirts. And it is frankly silly to imagine the FBI arresting and the federal government prosecuting someone for building a structure in a manner that infringes on an architect's copyright. But they can.
Why the need then for criminal enforcement? There is no parallel in the world of patents or trademarks as far as I know.
My other question would be:
What reforms, if any, do you think are needed for copyright law; this can include increasing or reducing protection or even the scope of copyright, additional or fewer formalities as a prerequisite for protection, further implementing or leaving international treaties, etc. It can also include revising the code to take care of further developments -- e.g. that 17 USC 511 is bad law after the Seminole Tribe line of cases. If you're concerned about the likelihood of reforms, feel free to address that, but do so seperately, since I'd still like to see what it is that you feel would be ideal.
Losing HARDLY means that your case never should have gone to court. Only in an egregious case is that true. The truth is that most cases could turn out either way. If a jury could reasonably decide in favor of either party, perhaps you don't want the case brought out of a desire to not backlog the courts, but it was nevertheless a valid dispute. And when judges could go either way, and various levels of the courts reverse themselves, and the appellate votes are split, there is DEFINATELY a valid case. Besides which, unless the case is pretty egregious, and really never had any chance at all, how are the parties supposed to have such great legal minds as to know how things will turn out in advance?
No offense, but your dad seems to have more of a black and white of a view of things than seems healthy for a lawyer.
Feh. The LCD screen is not particularly impressive. Ancient Palms had better screens. I disliked the Zen enough to return mine to the store. Not enough codec support, not enough metadata support, crappy ass program to put music onboard, and a lousy UI.
Maybe the iPod is better, but having done my own work on mp3 players (canceled before production, the bastards) I have very high expectations.
Very nice, but it basically requires the complicity of his assignees. There are very real limits to how much control people can exert after death. For example, there's not a whole lot of property held in fee tail anymore.
I'm kind of inclined to think that it's not possible. Instead we might be better off just concealing the site.
I say this because I can't help but think of how many tombs have been robbed regardless of warnings to keep out. In fact, we usually think of it as stupid superstition and proceed headlong.
That would be bad at Yucca of course, because for once the curse -- that people will get sick and die due to invisible forces -- is true.
Yeah, but the Court gave Congress a way out; all they have to do is get the EU to extend again, since harmonization seems to be a valid reason for extensions.
Damned if I can figure out why. Harmonization is such bullshit.
A) Why did you get that copyright? Who gave it to you, for what purpose?
B) No, you only get to decide up to the time of the expiration of the copyright. Plus there are limits even during the term. People can parody your song, or make and distribute copies if it falls within fair use, which is always possible. At worst, as soon as the term expires, the publishing company DOES get to make that decision, and there's fuck all you can do about it. (although given the current term, you'd be long dead, also throwing a wrench into your ability to stop such later use)
It's a funny post, but there is no Article III, Section 4 in the US Constitution. You might have at least pointed to a different part that would have made it funny for anyone that looked it up, not knowing that the Fair Use doctrine didn't even exist in 1789, is judicial, and as statute is in 17 USC 107.
I suggest Article I, Section 8, Clause 11.
Well, copyrights also are too easily granted, and it is arguable that patents also last too long.
Why do you think that copyrights necessarily are reducable to commercial value.
While I agree that they're not entirely so reducable, that argument IMO only helps the public -- not artists. Moral rights are bullshit.
I could write a song to a lover, and want only that lover to ever hear it. If evile corporation N comes along and wants to make it into a commercial success, do they have the right to take it away from me?
Then how did they hear it?
If you want something kept private, you should have kept it private. But if it is going to be public then you ARE going to lose control. Because no one cares what you want. The public wants your music and by God, sooner or later they will GET it. And if you don't like it, but you let it get out in the world, then tough cookies. The best you can do at that point is cut your losses by making a buck.
Nothing immediate perhapse. But if others started using his image in wholly un-family oriented ways, they MAY have to drop him because of the new associations. Considering that it is THEIR character, why should they even have to take that chance?
Disney has closely associated itself with characters that are undeniably in the public domain. I can make unwholesome uses of Cinderella, Snow White, Sleeping Beauty, Peter Pan, Aladdin, etc. In fact, IIRC, Anne Rice has a head start on this.
It is a risk. But we don't live in a society that is ruled by Disney, I'd hope. We have a right to change public perception; look at what happened to Disney's "The Song of the South" (based on the public domain Uncle Remus stories).
I doubt that would happen to Mickey, but there's nothing wrong with it if it does.
And how is inventing a character but not allowing just any person to do anything they want with it, without permission, "Screwing the American public?" How? In what way? In what possible, even infinitessimal way? Does it limit other people from coming up with their OWN mouse characters? No... Then how?
It does prevent you from coming up with your own; enough protection is never enough. People are greedy. And by people, I mean copyright holders. They'll push and push to make their copyrights more expansive. They'll at least TRY to prevent people from creating their own mouse characters. After all, they have nothing to lose by trying, and might gain a great deal.
For example, parodies are generally protected, but this doesn't stop copyright holders from suing parodists all the time. See the cases of "Pretty Woman" and "The Wind Done Gone."
Furthermore, it prevents us from using those characters as they actually are. Why SHOULDN'T we get to use them? Storytellers from time immemorable have reused characters and plots and situations. It's a technique to use them, and to bank on people's familiarity with them to help tell a story. For example, there are a set of stock characters in opera. When you see Scaramouche on stage, you know what he's going to do. It helps move things along. And it's perfectly valid.
I could create new Mickey Mouse animations. I'd like to; if the case had been decided correctly, I already would be! And one of the goals of copyright is to spur the creation of stories. Original or derivative DOESN'T MATTER. (and if it did, where'd Disney get the copyrights from on all of their fairy tale movies?)
What's really ironic is that Disney has NOT used Mickey Mouse significantly since I can't remember. He acquired too much of a goody-goody reputation early on to be genuinely appealing; hence the rise of Goofy and Donald, who are somewhat more flawed characters.
This is another example of pure selfishness, and not on the part of Disney, but on YOUR part.
So? You don't get the fundementals of copyright, do you?
It is a bargain.
The public wants things: they want origianl works, they want derivative works, and they want them for free, and they want to do anything they want with them, be it using them, copying them, or making new works based off of them.
Authors want one thing: they want money. If they have other motivations, they're not very relevant. Copyright only gives authors a chance to make money. If you want to do art for arts' sake, you don't need a copyright to motivate you. And if you could get enough money to motivate you without a copyright, you don't really need it either.
The idea is, that the public will not grant a copyright unless it will be better off doing so than not doing so. And as history shows, there will always be SOME creation going on. So any copyright system has to benefit the public more than without it.
Does the public care about artists? No, not really. They do benefit insofar as they're PART of the public anyway. But we don't have their best interests in mind. That's why the Constitution reads "to promote the progress of [knowledge]" and not
Far future? I'll probably happen no later than 2015. That's not _that_ far. Of course, I don't know if J. Breyer will still be on the bench then, and it was he who really understood why Congress shouldn't be able to do what they did.
I don't get the paper here, but I also heard about this. Wasn't hard, I live in Collingswood, the neighboring town, and I go to Oaklyn pretty frequently.
;)
So it's nice to see local boys make the national news.
I think that it might indeed just be a Canadian thing. We're getting worse all the time in the states, but that's a new one on me. And like I said, I can't find any US cases involving that, or information about it in Nimmer.
How? The layout of the traces is determined by its function, and it's pretty damn well arguably sculptural copyrightable subject matter, not literary. The utility doctrine should kick in -- and I have my doubts that the traces are seperable. As for what artwork is, unless you're talking about someone airbrushing a picture on there to boot, which I've never seen, I can't imagine what you mean.
A quick Lexis search didn't reveal any cases, and I didn't see anything in Nimmer either.
Tell you what, would you mind providing some citations?
What about rewarding innovation? Allowing inventors and creators to profit from their work before it goes to the people?
Copyright isn't primarily concerned with either of those things. They're nice to do, all else being equal, but neither is the point. Rewarding the public is the goal; the rest is secondary.
it's somehow our right to have the maximum quality possible
No, but OTOH why should we bother granting a copyright to something that's so shoddy? One of the aspects of rewarding the public is that the work should survive. This means high quality, and it means that it should be widely usable. After all, think of the long term: will it remain usable a hundred years from now, if someone is interested in using it? We have sculpture and paintings and movies and sound recordings and literature that are that old. Some are many thousands of years old. But it's not unusual for such works to only barely survive at times. We know of numerous works that have been lost over the ages. It would be decidedly good to have them. Something that is low quality and difficult to copy around does not have a good chance at seriously long term survival. Better, more easily copiable copies, and even some designed for serious longevity, should be required as part of the copyright bargain; that that's what artists do in order for us to give them protection. This isn't a novel idea, it's just one that needs to be pursued once more.
My argument is more along UCC lines. If it wasn't presented initially -- there's more detail in the argument than this, but this is the short version -- it isn't valid. A 'hole' of sorts is made for warranties in that the standard warranty might apply, but if specifically offered warranties are utilized by the buyer, then limitations that accompany that might come into play. Warranties are hard to disclaim anyway though.
Well, one is legal to copy music with even if you don't own a copy. The other requires you to make a fair use argument, and that's by no means clear in all situations.
There's no technical reason though, if that's what you're asking.
PCB designs are not copyrighted; the utility doctrine kicks in. That stuff needs to be patented, if it's protectable at all, which it likely isn't.
Maybe you're thinking of chip masks?
Computer software is different, because you almost always have to copy software at least once to make use of it (from the media to the computer).
So what? Such copies may not be fixed. Copyright holders are granted in 17 USC 106 an exclusive right to make copies of their copyrighted works. 17 USC 101 defines a copy as being a material object in which a work is fixed, and from which it can be perceived directly or via a machine.
Well, what if I deliver an extemporaneous speech orally? Is it fixed? Perhaps, if you consider that I am altering the configuration of air molecules in my vicinity in such a way that my words are fixed in it. It doesn't last, but then, what does? Even books and stone tablets wear out. My ice sculptures sure don't last too long, but they're copyrightable subject matter. And this configuration of air is perceivable by you, and you can understand the work that I've placed there.
But it's a stupid argument. Sound carried over the air is not enough to be fixed.
Well, when I copy information into volatile RAM, it lasts for a mere instant. Nanoseconds. The sounds in air actually last LONGER.
The only reason that the RAM manages to be useful is because that information is recopied again, and again, and again, many millions of times a second. But if that were enough to constitute fixation, what if I decided to play 'telephone' with my speech, and several people recited it to one another for a while.
The notion that copies in RAM are copies for the purposes of copyright law is stupid. Congress knows this. The legislative history for the Act says: "On the other hand, the definition of 'fixation' would exclude from the concept purely evanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a television or other cathode ray tube, or captured momentarily in the 'memory' of a computer."
Computer software is different, because you almost always have to copy software at least once to make use of it (from the media to the computer).
So what?
Check out 17 USC 117, which makes copying software to a computer in any way necessary for its use, or for backup purposes as desired, perfectly legal and not an infringement at all.
It's also different, because software (both shrinkwrap and Free) is traditionally shipped with a license in some form you can see and read.
That doesn't necessarily mean that the license is valid or enforcable. I'd argue that licenses generally are not, at least of the EULA variety.
IANAL, but circuit court opinions are perfectly binding precedent within their circuit, which here, would be the western US.
Given that appellate courts are just groups of judges anyway, I don't see what the original poster was basing his argument on.