Traditionally political speech is ranked highest, because it's necessary to safeguard the rest. However, I see no point in ranking types of speech, or treating games be they art or not as anything less than fully protected.
Why should government be able to intrude on non-political or non-artistic watercooler conversation, just because there's no driving social purpose. Regulation of speech is something that should be avoided at all costs, and if it ever must be engaged in (which is frequently debatable) it has to be kept to a minimum.
If you accept the term piracy (and it's only been used to describe copyright violations since the late 80s)
Care to provide the first use of the word in that sense? No wait, I shall, from the OED.
Piracy (2) fig. The appropriation and reproduction of an invention or work of another for one's own profit, without authority; infringement of the rights conferred by a patent or copyright. 1771 Luckombe Hist. Print. 76 They... would suffer by this act of piracy, since it was likely to prove a very bad edition.
Yeah, 'piracy' is a scurrilous epithet, but it's been in use for centuries, IIRC, dating back to an era when people seriously worried about the 'arr matey, fifteen men on the dead man's chest' sort of pirates.
So it's difficult to blame the RIAA and MPAA for it. Still hyperbole, but there are bigger battles to fight.
You mean that my collage art is not creative? That when I write a parody of some other work, it's not creative? That if I perform a cover of some other song it's not creative?
I'd have to think about whether downloading is importing for the purposes of the statute. If it's not it'll kill you. But I like the idea.
I mention this because I recall the Napster decision holding that P2P servers were infringing distribution rights (which might not be an issue here), but that P2P clients were infringing copying rights. That wouldn't sneak through the exemption.
Plus, this is an issue that SERIOUSLY merits closer inspection -- don't just accept my reading of the statute as gospel.
The law specifically prohibits that. You CANNOT do that.
If a copy is made in a foreign country, and is 100% legally made according to the laws of that country, it CANNOT be imported into the US unless it would also have been just as legal to create it within the US.
Thus, if Boris legally copies 'Thriller' in Pottsylvania, he's fine. He has broken no laws. But only the US copyright holder of 'Thriller' can copy it in the US.
Since that is not Boris, his CDs cannot be imported into the US en masse or for resale.
OTOH, if the Pottsylvanian branch of the same copyright holder made the copies, those could be imported legally, even if it would be economically harmful to the US branch due to the different prices that it sells for across the world.
Thus, your idea is great and will result in your swiftly being sued into oblivion, if not arrested outright -- 'cos it's illegal.
Don't feel bad. I had this great insight into how easy it was to print up $20 bills that looked a lot like the ones the government printed, but it turns out that that's also illegal. The government just always screws the little guy, you know.
While I generally agree with you, it doesn't change the currently accepted reality. Fair use is an affirmative defense to copyright infringement. If a use is not infringatory, then whether it was fair or not (e.g. copying a phone book verbatim and then competing with the original publisher -- highly unfair but quite legal and not an infringement) is a moot point.
HOWEVER, I do NOT believe that fair use's status as a defense makes it subject to revocation by Congress. It's a constitutional doctrine, created over a century before Congress ever said a word on the subject. It effectively is a limit to Congress' powers IMO, but where it lies procedurally -- as a defense or as a prima face element -- doesn't seem like much to me.
All that your proposal would do is require copyright holders to prove that the copying was unfair. Most infringement that makes it to court is.
Well, while he may be living in an unreal world, he's also basically correct.
17 USC 602(a) is the applicable statute, IIRC. It has been read to state that copyright holders can control the importation of their works where that importation is a part of their right to control initial distribution under 17 USC 106.
It is inapplicable where the section 106 distribution right is inapplicable, e.g. first sale. That is, if Sony Europe sells a particular CD for a value of $1 in San Marino, they cannot prevent its importation into the US even if it undercuts Sony America's price of $20, BECAUSE THEY ALREADY SOLD IT.
On the other hand, if they were uninvolved, as in the example of a copy made lawfully in Pottsylvania (which has no copyright laws at all), then they can prevent its import since it would thoroughly undermine US copyright laws -- everything would come in from there.
There is an exemption to this if you as an individual import a single copy of any work at any time and intend only to keep them and not redistribute them. (There are some other exemptions too, but that's the most germane here)
IANAL, but as I said, it really is a case-by-case analysis.
Typically to decide whether something is fair use the following has to be done:
1) Determine if the work in question has a valid copyright
2) Determine if the use of the work (use here is inclusive of copying, creating derivatives, etc.) is infringing
3) Determine if there is fair use via 17 U.S.C. 107, and any applicable caselaw.
It's doable, and often corresponds to one's gut instinct in my experience. But it cannot be a sessile doctrine with inflexible rules. That means it'll be more work to deal with, and unfortunately perhaps more confusing to the public (though it's intended to mirror their own common sense), but works out better.
On the other hand it probably is legal to tape a PPV show off TV and keep it forever in any medium or format you like.
For some programs it is absolutely an indisputable fact that it's legal. (i.e. public domain movies and tv shows)
Until the day comes when the cable box decides what I can and cannot record exactly as the Supreme Court would have decided given all of the circumstances involved, the slightest technical infringement on my ability to copy stuff that isn't an inherent and unavoidable outgrowth of the technology involved is simply unacceptable, and hopefully could be grounds for invalidation of the copyright at issue.
Copyright is supposed to work for the benefit of the public. The proposed system does not, and that's just no good.
No, fair use permits people to infringe on copyrights in any possible manner, so long as it is fair to do so. (which involves considering a number of factors)
So sometimes it is unfair to create a copy of a work even for your own personal use, and sometimes it is fair to create a million copies of a work and give it to anyone in the world.
There are NO absolute rules. Every individual fair use has to be analyzed according to the specific details involved. The best you can hope for are trends, e.g. parodies are typically fair uses, time and space shifting are typically fair uses. But that's no guarantee.
I have a pair of rabbit ears that I use to watch broadcast TV with. I don't watch much TV, and what I do watch is on the six broadcast networks. I need to get ahold of some sort of free, well-designed and easy to use technology to filter out advertising (the transmission quality is too poor to merit archiving) and then I'll be set.
I do watch a lot of movies, but my tastes are better served by buying or renting DVDs.
Well, Fair Use remains a body of common law, stemming from the Constitution. Congress cannot change it or reduce it, though they can add to it and have at present pretty well restated the judicial doctrine. This is what they did when they codified the then (and now) current doctrine in 17 U.S.C. 107.
Before the doctrine was pure case law, stemming all the way back to Folsom in 1841. Congress never touched it, and the language of the copyright statutes was completely against it. While this could have been construed in the statute, that seems pretty damn difficult. The Constitution is a much more ready source for the doctrine. And if it is, then Congress can no more override it than anything else.
"The House and Senate Reports explain that 107 does no more than give "statutory recognition" to the fair use doctrine...." Sony v. Universal, 464 U.S. 417, 476 (1984).
"The purpose of copyright protection, in the words of the Constitution, is to "promote the Progress of Science and useful Arts."... There are situations, nevertheless, in which strict enforcement of this monopoly would inhibit the very [progress] that copyright is intended to promote." Id. at 477.
"The fundamental justification for [fair use] lies in the constitutional purpose in granting copyright protection in the first instance, to with, "To Promote the Progress of Science and the Useful Arts." Rosemont v. Random House, 366 F.2d 303, 307 (2d Cir. 1966).
Well, as Fair Use predates codification, and ran contrary to the plain language of the statutes, it's fairly evident that it's constitutionally required in the copyright clause. Without fair use, progress could not occur. It really needs to override the DMCA in that case, though not all allegedly fair uses really are fair, mind you.
Heh. Go America. The Federal Government cannot copyright documents, nor can private actors fulfilling a governmental function. They can hold copyrights otherwise obtained that are given them, however. States can get copyrights on documents they create, but laws, judicial opinions, public records, etc. are typically held to be placed into the public domain upon becoming legal documents.
What regulation of print journalism would that be? I cannot think of a single thing that specifically applies to it. There's relatively little wrong with the laws as applied to the net, particularly in the post Reno era. (the case, not the person)
At any rate, we're back on the point I made quite a bit earlier: that of authors and publishers, copyright favors the former insofar as it favors either.
Why, after all, should the first publisher pay the author either? Ultimately they'll either gain the work through one means or another (Shakespeare's sonnets were literally stolen in order to be printed, IIRC; Kafka's writings were ordered to be burned upon his death, but were published anyway; Dickenson's poems were largely only discovered after she died), or from the author as self-publisher, since an author who never reveals his work is dead in the water.
Publishers will always do fine, particularly when you recall that anyone can be a publisher if they merely distribute copies they have made of a work. Big or small, we don't need to worry about them.
Yeah, but the 1st guy can adopt one of two strategies:
1) Burn a lot of money in this, try to obtain first mover advantages, and make a lot of money before others move in.
2) Expend relatively little money, making this a less attractive prospect for free riders, thus tending to keep modest profits to oneself. Additionally, pirates who do move in here are also prone to spend some money on promotion of their copies of the work to try to boost sales, and the 1st guy can benefit from this just as much.
Personally I think that there are good reasons to have copyrights, but it's not for the sake of publishers or authors.
First, that after a set period of time, the copyright expires, as is mandated by the Constitution, whereupon there are no limits on the uses to which it may be put, inclusive of modifying and copying.
Second, that the copyright must benefit the public more than not having granted a copyright at all would have.
If your software is released as binaries only, perhaps with a DRM system that requires your authorization per time it is run, when the term expires I _still_ cannot reasonably modify it, or use it, or make copies that will function, without your permission.
If you're releasing software of that type, you do not deserve a copyright, because I will not ultimately be better off when the term expires, since I can't really do anything with it.
Software isn't like a book, but copyright was founded on the assumption that creative works would be like books, or paintings, or other types of works known in 1789. If it isn't sufficiently similar, it shouldn't be eligible for copyrights unless it is 'fixed' to be more similar, e.g. by publishing the source (which couldn't be legally used until the work hit the public domain), or by shortening the term (since the usefulness of Win95 will be pretty minimal in 2090, but books will still be useful), or by prohibiting the commingling of copyrights and DRM (since they in effect prevent the entry of the work into the public domain)
Slashdot Mirror
Traditionally political speech is ranked highest, because it's necessary to safeguard the rest. However, I see no point in ranking types of speech, or treating games be they art or not as anything less than fully protected.
Why should government be able to intrude on non-political or non-artistic watercooler conversation, just because there's no driving social purpose. Regulation of speech is something that should be avoided at all costs, and if it ever must be engaged in (which is frequently debatable) it has to be kept to a minimum.
Care to provide the first use of the word in that sense? No wait, I shall, from the OED.
Piracy (2) fig. The appropriation and reproduction of an invention or work of another for one's own profit, without authority; infringement of the rights conferred by a patent or copyright. 1771 Luckombe Hist. Print. 76 They... would suffer by this act of piracy, since it was likely to prove a very bad edition.
Yeah, 'piracy' is a scurrilous epithet, but it's been in use for centuries, IIRC, dating back to an era when people seriously worried about the 'arr matey, fifteen men on the dead man's chest' sort of pirates.
So it's difficult to blame the RIAA and MPAA for it. Still hyperbole, but there are bigger battles to fight.
Well, if a Canadian downloads copyrighted music it's fairly academic for my purposes regarding US law in the US. ;)
Though we do have the AHRA -- figure out how to make analog recordings on existing computers and we could have some fun.
If it was legally made wherever it was made, I would think you're okay, but IANAL. Check out 17 USC 602(a), I think it is.
You mean that my collage art is not creative? That when I write a parody of some other work, it's not creative? That if I perform a cover of some other song it's not creative?
Well damn, you're a real tightass.
I'd have to think about whether downloading is importing for the purposes of the statute. If it's not it'll kill you. But I like the idea.
I mention this because I recall the Napster decision holding that P2P servers were infringing distribution rights (which might not be an issue here), but that P2P clients were infringing copying rights. That wouldn't sneak through the exemption.
Plus, this is an issue that SERIOUSLY merits closer inspection -- don't just accept my reading of the statute as gospel.
NO. I suppose I wasn't clear enough before.
The law specifically prohibits that. You CANNOT do that.
If a copy is made in a foreign country, and is 100% legally made according to the laws of that country, it CANNOT be imported into the US unless it would also have been just as legal to create it within the US.
Thus, if Boris legally copies 'Thriller' in Pottsylvania, he's fine. He has broken no laws. But only the US copyright holder of 'Thriller' can copy it in the US.
Since that is not Boris, his CDs cannot be imported into the US en masse or for resale.
OTOH, if the Pottsylvanian branch of the same copyright holder made the copies, those could be imported legally, even if it would be economically harmful to the US branch due to the different prices that it sells for across the world.
Thus, your idea is great and will result in your swiftly being sued into oblivion, if not arrested outright -- 'cos it's illegal.
Don't feel bad. I had this great insight into how easy it was to print up $20 bills that looked a lot like the ones the government printed, but it turns out that that's also illegal. The government just always screws the little guy, you know.
While I generally agree with you, it doesn't change the currently accepted reality. Fair use is an affirmative defense to copyright infringement. If a use is not infringatory, then whether it was fair or not (e.g. copying a phone book verbatim and then competing with the original publisher -- highly unfair but quite legal and not an infringement) is a moot point.
HOWEVER, I do NOT believe that fair use's status as a defense makes it subject to revocation by Congress. It's a constitutional doctrine, created over a century before Congress ever said a word on the subject. It effectively is a limit to Congress' powers IMO, but where it lies procedurally -- as a defense or as a prima face element -- doesn't seem like much to me.
All that your proposal would do is require copyright holders to prove that the copying was unfair. Most infringement that makes it to court is.
Well, while he may be living in an unreal world, he's also basically correct.
17 USC 602(a) is the applicable statute, IIRC. It has been read to state that copyright holders can control the importation of their works where that importation is a part of their right to control initial distribution under 17 USC 106.
It is inapplicable where the section 106 distribution right is inapplicable, e.g. first sale. That is, if Sony Europe sells a particular CD for a value of $1 in San Marino, they cannot prevent its importation into the US even if it undercuts Sony America's price of $20, BECAUSE THEY ALREADY SOLD IT.
On the other hand, if they were uninvolved, as in the example of a copy made lawfully in Pottsylvania (which has no copyright laws at all), then they can prevent its import since it would thoroughly undermine US copyright laws -- everything would come in from there.
There is an exemption to this if you as an individual import a single copy of any work at any time and intend only to keep them and not redistribute them. (There are some other exemptions too, but that's the most germane here)
IANAL, but as I said, it really is a case-by-case analysis.
Typically to decide whether something is fair use the following has to be done:
1) Determine if the work in question has a valid copyright
2) Determine if the use of the work (use here is inclusive of copying, creating derivatives, etc.) is infringing
3) Determine if there is fair use via 17 U.S.C. 107, and any applicable caselaw.
It's doable, and often corresponds to one's gut instinct in my experience. But it cannot be a sessile doctrine with inflexible rules. That means it'll be more work to deal with, and unfortunately perhaps more confusing to the public (though it's intended to mirror their own common sense), but works out better.
On the other hand it probably is legal to tape a PPV show off TV and keep it forever in any medium or format you like.
For some programs it is absolutely an indisputable fact that it's legal. (i.e. public domain movies and tv shows)
Until the day comes when the cable box decides what I can and cannot record exactly as the Supreme Court would have decided given all of the circumstances involved, the slightest technical infringement on my ability to copy stuff that isn't an inherent and unavoidable outgrowth of the technology involved is simply unacceptable, and hopefully could be grounds for invalidation of the copyright at issue.
Copyright is supposed to work for the benefit of the public. The proposed system does not, and that's just no good.
No, fair use permits people to infringe on copyrights in any possible manner, so long as it is fair to do so. (which involves considering a number of factors)
So sometimes it is unfair to create a copy of a work even for your own personal use, and sometimes it is fair to create a million copies of a work and give it to anyone in the world.
There are NO absolute rules. Every individual fair use has to be analyzed according to the specific details involved. The best you can hope for are trends, e.g. parodies are typically fair uses, time and space shifting are typically fair uses. But that's no guarantee.
I have a pair of rabbit ears that I use to watch broadcast TV with. I don't watch much TV, and what I do watch is on the six broadcast networks. I need to get ahold of some sort of free, well-designed and easy to use technology to filter out advertising (the transmission quality is too poor to merit archiving) and then I'll be set.
I do watch a lot of movies, but my tastes are better served by buying or renting DVDs.
IIRC, there was recently a case that forced one of those codes into the p.d. They're not as well protected as you'd think, or they'd hope.
Well, Fair Use remains a body of common law, stemming from the Constitution. Congress cannot change it or reduce it, though they can add to it and have at present pretty well restated the judicial doctrine. This is what they did when they codified the then (and now) current doctrine in 17 U.S.C. 107.
... There are situations, nevertheless, in which strict enforcement of this monopoly would inhibit the very [progress] that copyright is intended to promote." Id. at 477.
Before the doctrine was pure case law, stemming all the way back to Folsom in 1841. Congress never touched it, and the language of the copyright statutes was completely against it. While this could have been construed in the statute, that seems pretty damn difficult. The Constitution is a much more ready source for the doctrine. And if it is, then Congress can no more override it than anything else.
"The House and Senate Reports explain that 107 does no more than give "statutory recognition" to the fair use doctrine...." Sony v. Universal, 464 U.S. 417, 476 (1984).
"The purpose of copyright protection, in the words of the Constitution, is to "promote the Progress of Science and useful Arts."
"The fundamental justification for [fair use] lies in the constitutional purpose in granting copyright protection in the first instance, to with, "To Promote the Progress of Science and the Useful Arts." Rosemont v. Random House, 366 F.2d 303, 307 (2d Cir. 1966).
Well, as Fair Use predates codification, and ran contrary to the plain language of the statutes, it's fairly evident that it's constitutionally required in the copyright clause. Without fair use, progress could not occur. It really needs to override the DMCA in that case, though not all allegedly fair uses really are fair, mind you.
Heh. Go America. The Federal Government cannot copyright documents, nor can private actors fulfilling a governmental function. They can hold copyrights otherwise obtained that are given them, however. States can get copyrights on documents they create, but laws, judicial opinions, public records, etc. are typically held to be placed into the public domain upon becoming legal documents.
Wouldn't this then protect them with regards to that specific product? It's been adjudged to not violate the DMCA, after all.
What regulation of print journalism would that be? I cannot think of a single thing that specifically applies to it. There's relatively little wrong with the laws as applied to the net, particularly in the post Reno era. (the case, not the person)
Did you have something specific in mind?
You'd be surprised how far you can get in a week.
At any rate, we're back on the point I made quite a bit earlier: that of authors and publishers, copyright favors the former insofar as it favors either.
Why, after all, should the first publisher pay the author either? Ultimately they'll either gain the work through one means or another (Shakespeare's sonnets were literally stolen in order to be printed, IIRC; Kafka's writings were ordered to be burned upon his death, but were published anyway; Dickenson's poems were largely only discovered after she died), or from the author as self-publisher, since an author who never reveals his work is dead in the water.
Publishers will always do fine, particularly when you recall that anyone can be a publisher if they merely distribute copies they have made of a work. Big or small, we don't need to worry about them.
Yeah, but the 1st guy can adopt one of two strategies:
1) Burn a lot of money in this, try to obtain first mover advantages, and make a lot of money before others move in.
2) Expend relatively little money, making this a less attractive prospect for free riders, thus tending to keep modest profits to oneself. Additionally, pirates who do move in here are also prone to spend some money on promotion of their copies of the work to try to boost sales, and the 1st guy can benefit from this just as much.
Personally I think that there are good reasons to have copyrights, but it's not for the sake of publishers or authors.
So what you're saying is, that publishers want copyrights, since otherwise other publishers will succeed.
That doesn't really make a hell of a lot of sense. There's no particular difference between the first publisher and the later ones.
Besides which, you underestimate the importance of a first mover advantage. It'll take those other publishers time to catch up.
That would first be unconstitutional, and second be a bad idea, since copyleft does not benefit the public enough.
Because you left out two steps.
First, that after a set period of time, the copyright expires, as is mandated by the Constitution, whereupon there are no limits on the uses to which it may be put, inclusive of modifying and copying.
Second, that the copyright must benefit the public more than not having granted a copyright at all would have.
If your software is released as binaries only, perhaps with a DRM system that requires your authorization per time it is run, when the term expires I _still_ cannot reasonably modify it, or use it, or make copies that will function, without your permission.
If you're releasing software of that type, you do not deserve a copyright, because I will not ultimately be better off when the term expires, since I can't really do anything with it.
Software isn't like a book, but copyright was founded on the assumption that creative works would be like books, or paintings, or other types of works known in 1789. If it isn't sufficiently similar, it shouldn't be eligible for copyrights unless it is 'fixed' to be more similar, e.g. by publishing the source (which couldn't be legally used until the work hit the public domain), or by shortening the term (since the usefulness of Win95 will be pretty minimal in 2090, but books will still be useful), or by prohibiting the commingling of copyrights and DRM (since they in effect prevent the entry of the work into the public domain)