Perhaps being able to search google's scanned books should be a subscription service with some portion of that subscription payment going back to the authors of the books you looked at.
Then probably no one would use it very much. Plus of course, copyright doesn't include a right to information about a work, and that, fundamentally, is what Google Books is: it tells you that a given search term appears in a book. The snippet is just icing on the cake, very similar to the thumbnails in image searches, or the snippets on Google's web search results pages. They provide useful context and the ability to verify that the match is not a false match, but that's about it for most of them.
Or perhaps it should be nationalized into a public library system and we pay taxes into it that go back to the authors.
I have no problem with the Library of Congress or other public libraries offering similar services. I wouldn't pay authors though; it's not necessary and seems like a waste.
I'm just not sure a system that benefits you and google but not the authors is the best solution to the problem here.
The important thing is that it benefits him, and you, and me, and the general public. Copyright isn't meant to provide a benefit to authors, except where doing so is in the interests of the public.
Nonsense. Apple doesn't give a crap about ebooks. They did it because they were worried about the Kindle harming iPad sales. The rest follows from that.
Back on dead-tree, you owned the medium but licensed the content
No, you're wrong.
The way it works is that copies (i.e. tangible media in which a work can be fixed, such as paperbacks, hard drives, or flash memory) are ordinary personal property. Creative works (i.e. intangible stories or pictures, separate from the media that contain them) are not any kind of property at all. And in order to create an approximation of what it would be like if creative works were even capable of being property, we may grant copyrights pertaining to those works, which limit what people can do with them or copies containing them. However, copyrights are really quite limited themselves, and only prohibit a few (admittedly desirable) things that can be done with works or copies thereof. Mostly they prohibit people from fixing the works into more copies, from distributing copies containing the works, from preparing new works derived from preexisting works, and from publicly performing or displaying certain works.
The other important thing to understand is that a license is fundamentally just a promise not to sue someone. If Alice and Bob are neighbors, Alice doesn't need a license from Bob in order to go into her own home, eat her own food for dinner, and sleep in her own bed. However, Alice needs some form of permission from Bob (or an applicable exception) to go into Bob's home, eat Bob's food, or sleep in Bob's bed.
So the way this all works is, copyright does not apply to the mere ownership of a work or a copy, or to the mere use of a work or a copy. If you legitimately own a copy of a work (i.e. the paperback), the copyright does not prohibit you from owning it just because it has a work in it, and does not prohibit you from using that work, e.g. by reading it. Since the copyright holder can't stop you, he has no ability to grant you a license; he might as well grant you a license to breathe air.
This doesn't mean that you own the copyright. Nor does it mean that you own the work, since no one can own that. It just means that owning a copy automatically brought along the right to read that copy more as a consequence of personal property law and the right of free speech.
If you wanted to make a new copy, however, that would infringe on the copyright, if there is one. Ownership of a copy does not automatically confer the copyright.
The basis for claiming that e-books are licensed really has to do with a way in which they are unlike printed books. Basically, it's that in order to get one, you have to download it, which involves fixing it into some storage medium, and therefore making a new copy, which is something that copyright does prohibit, and therefore requires a license or exception in the law. OTOH, if you went to the bookstore and could buy a pre-written flash card with the book on it, and slot that into your reader, you wouldn't need a license, and it would work fine as a simple sale transaction.
The idea of end-user licensing really didn't start at all until the late 1970's with software, and it has been totally unnecessary there for over 30 years. But it's quite favorable for the developers and publishers, so they keep pushing that model and sadly it's spreading.
That list looks familiar. You may not like the list, but it's the list that Congress put in the law. The list isn't comprehensive, but it is law - statutory federal law.
Yes, I know what you were referring to. My dislike for the list has nothing to do with what is and isn't in it; I dislike it because it section 107 is worded in a rather confusing way, and it often trips people up.
What it actually says, rearranged for clarity is:
[T]he fair use of a copyrighted work... is not an infringement of copyright.
[To aid in the determination of] whether [a particular use] is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
[If the use is determined to be a fair use, by] consideration of all of the above factors[, it is irrelevant that the work] is unpublished.
[By implication, courts are free to also consider other factors to aid in the determination.]
[Although it is tautological to say it, fair use] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research[, is ultimately fair use, and thus not infringing as per the above. However, criticism, comment, news reporting, teaching, scholarship, and research which are not fair use, may be infringing.]
Thus, the list is bogus. It confuses people into wrongly thinking that the only uses which are fair are the ones on the list, and that if the use is on the list, it must be fair. Neither is true. They're just examples of things that might be fair use, or might not be fair use, depending on circumstances.
Unanimous SCOTUS opinion in Campbell vs Acuff-Rose "fair use is an affirmative defense".
And IIRC, that was not relevant to the case, which was actually about whether uses may be presumptively unfair, which the Court found was not so. Essentially it's dicta, and Harper & Row is even more so, as there was no mention of whether it was an affirmative defense until the opinion, and it too was not relevant to the case, which dealt with whether any of the uses on the list were presumptively fair, which the Court also found not to be so. In fact, I'd say that it's completely built on sand: The only mention of it being an affirmative defense comes from a cite to a 1967 House Report, which merely says that the pre-codification form of fair use was historically often raised as a defense. The report then goes on to say that it would be wrong to place the burden of proving fair use on either side, which directly undercuts the idea of it being an affirmative defense which must be raised by the defendant or else waived.
The better case to look at is Sony:
Moreover, the definition of exclusive rights in section 106 of the present Act is prefaced by the words "subject to sections 107 through 118." Those sections describe a variety of uses of copyrighted material that "are not infringements of copyright" "notwithstanding the provisions of section 106." The most pertinent in this case is section 107, the legislative endorsement of the doctrine of "fair use."
Indeed, the statute itself is the best support for the status of fair use as not being an affirmative defense: The grant of copyright itself in section 106 is limited in scope so as not to cover the territory taken out of copyright by section 107, among others. Although for reasons of judicial economy, there's no reason to even bother with fair use unless a prima facie infringement can be shown, the statute clearly states that fair uses cannot possibly be infringing, as
Your list is bogus. Any use "-can-" be a fair use. However, no use is necessarily a fair use. Certainly there have been uses which weren't types you listed, and there have been uses which did fall into the listed categories, but were determined not to be fair.
Note also that with regard to the classic four prong test, additional prongs may be added if helpful, and the test isn't mean to be applied mechanistically.
A professionally produced "Star Trek" film certainly COULD compete with Paramount's 2016 Star Trek Film, "Star Trek Beyond". In fact, if it's available on Amazon, consider someone tells their spouse or parents they want the Star Trek DVD for Christmas. It's entirely possible the gift-giver (who isn't a Star Trek fan) would buy the wrong one, buying the unauthorized movie rather than Paramount's official Star Trek.
This is unlikely. The question is essentially whether the use is a substitute for the original work. Mere confusion isn't really relevant; you're looking for people who say that because they got a copy of the work which is allegedly a fair use, they no longer have a need for the underlying work.
Note that fair use is a "defense".
No it's not. Fair use is an exception to copyright. However, the person engaging in the use is better able and better motivated to make the argument of fair use than the copyright holder trying to prohibit it. For this reason it is treated like a defense as a matter of procedure.
Meanwhile, Xerox is not a genericized trademark, though some think it is.
It may be generic, the issue simply hasn't arisen, so far as I know.
The key to whether or not a trademark is generic is exactly what people think it is. If enough people think that XEROX is synonymous with photocopier, rather than being a specific brand of photocopier, it's generic, regardless of whether the Xerox company failed to try to protect its mark.
XEROX, KLEENEX, and BAND-AID are probably generic, but have simply never been challenged.
Why would you want to cut your production rate? Both reusability and economy of scale are essential in cutting launch costs. SpaceX ought to be working on internal projects that can use any excess launch capacity until there are enough customers, though, preferably ones that will help further the business. (Like electric space tugs and refueling / repair / refurbishment drones)
Holding a trademark is hardly sole ownership of a term. Even dilution doesn't stretch that far. But I agree that it should strictly be a civil matter if no fraud is involved.
Except they are, which is why they can be bought and sold not unlike domain names.
No, not that freely. Just outright selling a trademark would be considered naked licensing, i.e. the transfer of the mark, without the reputation in the marketplace that the mark stands for. The result is that the mark is treated as having been abandoned, and that any previous junior users of the mark now have seniority over you if you want to reestablish protection.
To transfer a mark correctly is a lot of work, and takes a lot of time. It's generally part and parcel of the sale of the entire business that uses the mark, so that the reputation is preserved.
And when the government tells me that some foreign group is so dangerous to us that they must be destroyed at all costs, even though I'm more likely to die from slipping in the shower than at their hands, and are so persuasive that they must be totally censored, they're trying to induce terror for the purpose of shoring up their own support domestically.
I would rather risk foreign terrorists posting videos on YouTube than allow our state to engage in terrorism and censorship. The damage that our own government can cause to us, especially since censorship and other infringements of our rights tend to spread and corrode our values, is far greater than any two bit gang can cause with mere guns and bombs.
The first rule of countering terrorists is to not allow yourself to become afraid of them. If they can't terrify you, they can't get you to harm yourself, which is the best weapon they have in their arsenal.
No, other people need to know them too, or else you leave yourself open to having government authorities declare people to be terrorists regardless of whether they really are or not. Perhaps the victims of such false accusations are merely peaceful political opponents; you won't know if they're censored, and it's hardly unheard of for those in power to use any tool against those who would limit their power or remove them from power.
We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.
Well, part of it is that even a small payment can still incur a psychologically large cost. If each user post here on/. cost one cent to read, would you want to have them load automatically? Probably not, many of them are not worth that much, and you could quickly run up a bill of a few hundred dollars a year on that sort of thing from this site alone. So instead you'd have to take more time to think about what was worth spending even a little on, because it adds up and the price doesn't really match the value to you of the thing you'd be paying for.
Something similar happens when people have metered or capped Internet usage compared to at least nominally unlimited usage.
You really can't avoid this problem unless the micropayment is so small that it is likely not worth the cost to implement. I suppose if I knew that a year's worth of micro payments for me, for everything I use, was no more than about a dollar a year in total, it wouldn't be so much that it would feel like I was wasting money on the Internet. But because the average user doesn't want to spend a noticeable amount ever, and there really aren't that many users in comparison to sites, the resulting pie of money wouldn't be much to split up. (Especially once you reduce the amount to account for lower average incomes elsewhere in the world)
Option 2: Active editors. These forums are cultivated, maintained, and very ban-heavy. As a side-effect, the forum can be held responsible for third-party content.
Not true in the US (other than, potentially, with copyright issues and the like).
Remember, the CDA was intended to encourage providers to engage in censorship. Since the previous state of affairs was as you suggest, the way that they were encouraged to censor was to remove liability for material posted by third parties. But since many sites don't care, and the CDA protects them fully no matter what they do or don't do, it didn't really work out. Also other parts of the CDA turned out to be unconstitutional.
Either way, we need to come up with some solution as automation is going to put more and more people out of work.
So what, if we invent a robot that picks up litter, we should force human beings to do it because it's good for them?
Screw that. Some people will become total layabouts, but most will find something to occupy their time which is at best not harmful, and ideally productive. Like how numerous scientists and inventors before the 20th century tended to be people who had an independent income and could therefore spend all day screwing around with insects or what have you.
A basic income -- and increased access to adult education, from remedial to graduate programs, as well as technical training -- are good responses to the decreased need for humans to work. Don't make things worse by adding paternalism into the mix.
The trick is to let you collect the stipend and make money at a job as well. Up to a certain level anyway.
Well, sure it should be in addition to what you can make working, or otherwise, but it should go to everyone. The reason being is that this is on a per-capita basis, and there really aren't that many people wealthy enough to turn their nose up at the equivalent of about $10,500 annually, so not a lot is being spent superfluously by doing this. OTOH, if you cap it at an income level that is low enough that it makes fiscal sense to create a bureaucracy to verify who should and shouldn't get it (and remember, much of the savings to the government of a basic income is lowered transactional costs in administrating it) then you're excluding a large enough number of people who are likely politically active, donate to campaigns significantly, etc.
FDR saw the same logic behind why all worker pay is taxed to fund social security, even for people who don't really need to receive it: "We put those payroll contributions there so as to give the contributors a legal, moral, and political right to collect their pensions . . . . With those taxes in there, no damn politician can ever scrap my social security program." (That is, if you tax people and don't give them anything for it, they'll try to dismantle it, so don't do that)
If Steamboat Willie fell into public domain in the USA, there is no reason to think that would somehow grant other people the free privilege to use Mickey Mouse in their own works, because Mickey Mouse is trademarked.
In Fleischer Studios, Inc. v. A.V.E.L.A., Inc, the character of Betty Boop was at issue. Without getting too deep into the weeds, the gist of the dispute was that Fletcher claimed to hold copyrights and trademarks on the Betty Boop character, and AVELA was printing up Betty Boop art. There, the situation was similar to a public domain character, because Fleischer turned out not to hold the copyrights at all (and it isn't the court's problem to figure out who did and to drag them into this suit), but did have trademarks. The district court, on remand, said: "The words 'Betty Boop' used on goods bearing the image of the character Betty Boop self-evidently describe those goods, and are not referring to something else.... In addition, there are no words other than âoeBetty Boopâ available to describe or name the character Betty Boop. As noted above, these proceedings have already established that Defendants may so use the character over Plaintiff's objection [because the Plaintiffs could not show that they held the pertinent copyrights]; Defendants must also, therefore, be able to identify this character by name."
End result: The Fleischer trademarks didn't prevent the free use of the trademarked character by a third party, where copyright was not a factor.
And given that the way that precedents work is that you look more for analogous situations, rather than those which are exactly alike, it requires no real effort whatsoever to see how this would apply in a future MICKEY MOUSE trademark case.
However, given the repeated long-windedness of your replies, you evidently have far more patience for discussing this matter than I.
Well, this is both my job -- I'm a copyright and trademark attorney -- and also my hobby. And while I admit to being long-winded, is that really the worst thing in an Internet argument?
Yes, but that's because the name Peter Pan, as it refers to the name of the main character in the story that is now in public domain, was not under any trademark in the first place (any trademark status it has since acquired, such as the name of a particular brand of peanut butter, or bus services, or the like, happened after the work fell into public domain).
Nope.
First, names are not copyrightable; even during the time when the original Peter Pan plays by Barrie were copyrighted, the name could have been used by others without running afoul of the copyright.
Second, while patents require novelty, i.e. that something has never been done before, trademarks do not. And while copyrights require originality, i.e. that something originates from an author, rather than having been copied, trademarks do not. It is perfectly acceptable to use pre-existing material to make a mark, e.g. APPLE for computers, and it is even perfectly acceptable to copy someone else's mark provided that it is not then used in an infringing or diluting manner. A classic example is the PERSON'S mark used for clothing: In 1977, a Japanese clothing firm began using the PERSON'S mark in Japan, and in 1981 an American visited Japan, bought some samples of PERSON'S clothing, took them to America, and began manufacturing and selling his own line of clothing in America using the PERSON'S mark. In 1985, the Japanese firm began selling in the US, and the next year, the two firms realized they were now both in the same market with the same mark. They went to court, and ultimately the American won, since he had been the first to use the mark in the US; it didn't matter that he copied the mark from the Japanese, because trademarks, like copyrights, are not really international in nature, and use in Japan didn't count for anything in the US.
Third, your history is wrong. The Swift Company's divisions E.K. Pond and Derby started selling PETER PAN brand peanut butter in 1928, at a time when the plays were not only copyrighted, but Barrie himself was still alive and still held the rights. There's no indication that the name was used with permission, that there was a license agreement, or that there was any payment, or that Barrie even knew about it. Great Ormond Street Hospital, which wound up with the copyrights says that they never gave permission or got paid during the remainder of the time that the plays were still copyrighted in the US.
Had the character been called something that was simply descriptive of him, such as "Orphan Flying Boy"
You have a way too narrow view of what's descriptive in a trademark context. A mark is descriptive if it has an ordinary meaning and is used in conjunction with goods or services directly related to that meaning. Show anyone a picture of the Mickey Mouse character and ask them what that is, and they'll tell you that it's Mickey Mouse; the name of the character is a characteristic of it. If it weren't, you could say that no, the picture is of a character named Dan O'Neill, and people would believe you.
There is nothing magic or special about the US's copyright or trademark laws that would suggest that what would happen within the US should be even slightly different than what has already happened elsewhere when those jurisdictions have extremely similar laws.
No, there are two special things. First, many other countries regard international treaties such as the Berne Convention as being law which can be used by parties to a suit. The US does not; we regard most treaties to simply be obligations on our government to abide by them, but our actual law is what our own government enacts. Maybe they'll pass laws that comply with their treaty obligations, maybe they won't. We've been in violation of the TRIPS Agreement and the Berne Convention with regard to our homestyle exception (it concerns publicly playing the radio without owing royalties or needing permission) for well over a decade now and not
You insist on alleging that somehow, by making the Steamboat Willie cartoon public domain, that this should cause trademark dilution.
No, not at all. I'm saying that it will cause the MICKEY MOUSE mark to suffer from genericide, at least with regard to certain types of goods.
OTOH, I agree that the mark would not be completely invalidated; there is ample precedent for fictional characters to be both in the public domain with regard to copyright, while also being protected trademarks. The key, however, is that the characters can only be trademarks with regard to goods that do not interfere with the public domain use of the characters in a copyright context, due to the superiority of copyright over trademark in the law. My go-to example is the character of Peter Pan, which is in the public domain in the US because the works in which he originated are in the public domain in the US. Anyone here can freely use the character in any manner of creative work; in fact a new Peter Pan movie was just released recently. However, at the same time, there are also PETER PAN trademarks for intercity bus services, and for peanut butter. That the character cannot freely be used to sell peanut butter does not prevent anyone from freely writing new books, performing the original J.M. Barrie play, making a film adaptation of the play, etc.
When Steamboat Willie enters the public domain, the same situation will occur for the Mickey Mouse character as he was in that work; he'll be freely usable, since there will no longer be any limitation on the creation of new derivative works based on Steamboat Willie. (That later changes to the character will still be protected until the works in which they originate also enter public domain is well established in, IIRC, Silverman v. CBS, which went through this already with the infamous Amos 'n Andy characters) Any trademarks that Disney has on MICKEY MOUSE which would interfere with the creation of copies of the existing work or new derivative works will cease to be valid. However, MICKEY MOUSE trademarks which are totally unrelated to creative works -- such as if Disney starts selling MICKEY MOUSE brand motor oil -- will remain perfectly valid.
Freedom to copy and distribute the work... does not make the title character public domain, only the work itself.
There's actually no such thing as a copyright on a character. Only works can be copyrighted. If characters enjoy any copyright protection at all, it is due to being part of a copyrighted work, subject to whatever happens with that work.
This is not substantiated by any precedent where the name of something is not otherwise a general description of the trademarked item
In the US, trademarks come in five strengths: generic, descriptive, suggestive, arbitrary, and fanciful. Generic marks can never be protected, and suggestive, arbitrary, and fanciful marks usually are. Ironically, a stronger mark (fanciful are the strongest) may sometimes also cause a loss of protection, as I'll get to in a moment. Descriptive marks, come in a further two types: Merely descriptive marks, which are not protected, and descriptive marks with secondary meaning, which may be protected.
DIGITAL is a good example of a descriptive mark for digital computers; it's not generic (that would be COMPUTERS) but does merely describe the computer at hand. Anyone who makes or sells digital computers can describe their computers as being digital in nature; no one can have exclusive rights in this. However, a digital computer company that uses the DIGITAL mark in conjunction with their computers a lot -- like the much-loved Digital Equipment Corporation (also known as Digital, and as DEC), whose logo was the word "digital" may be able to show that they have built up a sufficient association with their mark and their goods in the minds of consumers that they are entitled to protection for the descriptive mark where secondary mea
They already have lost the copyright on Steamboat Willie in several international jurisdictions.... the trademark, however, still remains entirely valid in those jurisdictions, and does not dilute Disney's ownership at all.
Well, my analysis is limited to US copyright and trademark law. I have no idea what they do in other countries.
To the best of my understanding, the result of that case did not lead to the dilution or surrender of any trademark owned by any party... it merely established that, as should be expected, a public domain work may be freely copied.
It did more than that. It established that trademarks cannot be used to interfere with the public domain status of public domain works. A public domain work can not only be freely copied and distributed, but it can serve as the basis for new, derivative works. If trademarks prevented the use of a public domain work as the basis for new derivatives, it would be taking on a copyright function, which Dastar tells us is absolutely not allowed.
So now we know that once Steamboat Willie enters the public domain, anyone in the US will not only be free to make and distribute copies of it, they will also be able to create new works which include the Mickey Mouse character. This then brings us to the Shredded Wheat case.
The sine qua non of a trademark is that all goods bearing the mark originate from a common source and are perceived to do so by the market. If all computers marked with the APPLE trademark originate from Apple, Inc., the APPLE mark may be viable. But if Lenovo, Dell, and HP all make computers with the APPLE trademark, the APPLE mark is no longer a viable trademark. This is why trademark holders are always going after anyone they think is infringing; if the infringer were to be left alone to infringe, goods bearing the mark would have different origins, and the mark would no longer be viable.
Likewise, this is why trademark holders also try to urge the public to use trademarks 'correctly.' If most people who buy computers refer to Apples, Lenovos, Dells, and HPs as APPLE computers, this indicates that the mark is not identifying the common source to the public, and again can result in the mark no longer being viable. The way that this happens in real life is that consumers start using the mark to describe the good itself, rather than the origin of the good. For example, Apple would tell you that a computer they make is not an APPLE, but an APPLE-brand computer. Similarly, you aren't supposed to wear LEVI'S, you wear LEVI'S-brand blue jeans. A failure to distinguish between the good and the source of the good caused marks like ELEVATOR and TRAMPOLINE to become generic. KLEENEX has teetered on the edge for years, and Xerox runs ads to try to protect their XEROX mark, my favorite being "You can't xerox a xerox on the xerox," meaning, you can't photocopy a photocopy on a photocopier. Of course, real human beings xerox xeroxes on xeroxes all the time -- if anything will save XEROX it will, ironically, be the march of progress rendering xeroxes obsolete. (Similar thing happened to SANKA, which nearly became generic when it was basically the only brand of decaf coffee and was synonymous with it -- to the extent that this is the origin of the association of orange with decaf -- but when other brands showed up, the SANKA brand was able to be revived, albeit at the expense of having near total domination of the market)
In the SHREDDED WHEAT case, what happened was that Nabisco had a patent and was therefore the exclusive manufacturer and seller of shredded wheat. Their mark was not quite generic at the time, but effectively had secondary meaning simply because there were no competitors manufacturing the same product due to the patent. Once the patent expired, it turned out that SHREDDED WHEAT merely described the good, rather than Nabisco's version of it, and whatever sort of trademark protection Nabisco might have been able to claim during the patent term was lost.
There have been many adaptations of The Wizard of Oz, and while just as with original works, not all have been good, enough have been that it's worked out quite well.
Copyright covers pretty much any new work, even if it is a copy of an old work.
No it does not. Copyright only protects original material, i.e. material which you, the author, originated. Anything you copied, you don't get a copyright on. This is an absolutely fundamental part of copyright.
Imagine you have a copy of the Mona Lisa, a public domain work. You paint a small red circle in the corner. The most you now have a copyright on is a small red circle in the corner. I can copy the entire rest of the Mona Lisa -- from your canvas with the circle! -- and so long as I don't copy the single bit you added, I'm totally in the clear.
The relevant bit of the law you want here is 17 USC 103(b):
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
The Bible is not copyrighted, but translations of it may be. And if you reprint an old book, and add some new material, such as an introduction, only the introduction is protected, not the reprint of the old book.
If you look at it from a creative perspective, why do you have to reuse someone else's character, story or universe?
Because I have a good idea for something that can be done with those, and it improves the world to have such works created. Let's take Shakespeare -- he didn't come up with the story of Romeo and Juliet. It derives from the story of Pyramus and Thisbe, from the first century. Dante referenced it. An Italian version appeared long before Shakespeare, called Mariotto and Gianozza, and was then readapted by another author into Giulietta e Romeo. Eventually it was translated into English by Arthur Brooke, as The Tragical History of Romeus and Juliet, and Shakespeare made a number of theatrical adaptations of Italian stories (that's why so many are set there).
But according to you, that's all just crap, and we should've stuck with Ovid's original Pyramus and Thisbe -- assuming he wrote it, which is actually pretty unlikely; it probably originated in the ancient Middle East.
My response: Fuck you. All these many changes and modifications and tweaks and responses and responses to the responses have been an improvement in the world. There's nothing in the slightest bit wrong with creating a derivative work.
From a moral perspective, is it good that you have vultures looking to profit the moment they can use it without paying royalties?
Yes, absolutely, because the vultures are more moral than the copyright holder who has created a work but has locked it away, only granting access or copies to those who will pay him for it. The vultures get no monopoly; they can use it without paying royalties, but anyone else can copy their editions, and it's never been easier to do so than it is now. The price will drop to the real market value of the work -- which is at or nearly at zero -- and access to it will improve, since now people who wanted it but couldn't afford it, can get it for free.
Copyright is censorship. It's a private-public affair, in which private parties decide what and how much to censor, and the government helps them enforce it, but it is at best tolerable in the purpose of a greater good. It is by no means good in itself.
I can easily argue for copyright where it's a repository of knowledge that you would like to build on stone by stone.
People can argue anything; I bet you a dollar you can't do so convincingly.
is there any weighty arguments that makes it imperative we take it away from the estate and into the public domain?
Yes. It was never the estate's to begin with. Works are inherently in the public domain. Copyright only exists when we gin it up out of thin air. And it isn't created by authors, it's created by everyone else in the world who the author would like to abide by it. To claim a copyright without the public willingness to agree to it is like trying to claim that you own the moon; you can claim to til you're blue in the face, but you'll just be a nut.
The public is willing to give authors copyrights for a little while, because it serves the public interest to do so. Since authors start with no copyright, and only get copyright through the good graces of the public, authors have no cause for complaint that the gift is li
It is only fair to people who actually never create anything.
I used to be a professional artist, and it never bothered me. Then again, I was able to make a living at being an artist without relying on exploiting copyrights. It's hardly unusual. The trick is to sell artistic services instead of many copies of finished works. Even selling single copies of finished works can provide a living without copyrights.
But even assuming that you're right, so what? Those people outnumber the authors, and the majority rules. It's not like copyrights are a natural thing, either. (In fact, they're opposed to the natural right of free speech, being a form of private censorship enforced by the government) Either you convince other people to respect your wishes -- which they may only be willing to do on their terms for their benefit as they consider fair -- or else you get no rights at all. So even the least protection is something authors should be grateful for, really.
If you have spent your whole life writing stuff, novels, plays, music barely surviving at minimum income, just because the market plays you, or you are bad at marketing, no one 'discovers' you, no one invests into you, no one cares about you, and the greedy bastard corporation comes and takes all your stuff for free and makes billions...
If someone else can figure out how to do that when I never could, and gets my work out to the world in a way that I never was able to, I'd be happy. Sure, I'd like to get some of the money, but if I had to choose between, on the one hand, my work never reaching anyone and I'm poor, and on the other hand, my work reaches many people and is popular and I'm poor, the second one is better than the first.
But the mouse is still a registered trademark. And you will lose
No, the trademark will largely lapse when the copyright does. This is pretty well settled law, dating back almost 80 years. I have discussed this elsewhere in this thread if you care to look into it.
trademarking components of works is really a separate problem that's gone into overdrive lately. Every major and minor character, event, location, etc is being "trademarked" these days. (Harry Potter for example...every proper noun in the series and some that aren't is a registered trademark. That's wrong on some level.)
Pfft, they're amateurs compared to TSR. Also I'm fairly dubious that they're getting registered marks. They may be claiming common law trademarks, but I don't see every proper noun from the books making it through the PTO.
Slashdot Mirror
Shouldn't it be up to each author to decide how much and what should be available as a free preview?
Only to the extent that it would not be fair use. Within the confines of fair use, it's not for them to decide.
Perhaps being able to search google's scanned books should be a subscription service with some portion of that subscription payment going back to the authors of the books you looked at.
Then probably no one would use it very much. Plus of course, copyright doesn't include a right to information about a work, and that, fundamentally, is what Google Books is: it tells you that a given search term appears in a book. The snippet is just icing on the cake, very similar to the thumbnails in image searches, or the snippets on Google's web search results pages. They provide useful context and the ability to verify that the match is not a false match, but that's about it for most of them.
Or perhaps it should be nationalized into a public library system and we pay taxes into it that go back to the authors.
I have no problem with the Library of Congress or other public libraries offering similar services. I wouldn't pay authors though; it's not necessary and seems like a waste.
I'm just not sure a system that benefits you and google but not the authors is the best solution to the problem here.
The important thing is that it benefits him, and you, and me, and the general public. Copyright isn't meant to provide a benefit to authors, except where doing so is in the interests of the public.
Nonsense. Apple doesn't give a crap about ebooks. They did it because they were worried about the Kindle harming iPad sales. The rest follows from that.
Back on dead-tree, you owned the medium but licensed the content
No, you're wrong.
The way it works is that copies (i.e. tangible media in which a work can be fixed, such as paperbacks, hard drives, or flash memory) are ordinary personal property. Creative works (i.e. intangible stories or pictures, separate from the media that contain them) are not any kind of property at all. And in order to create an approximation of what it would be like if creative works were even capable of being property, we may grant copyrights pertaining to those works, which limit what people can do with them or copies containing them. However, copyrights are really quite limited themselves, and only prohibit a few (admittedly desirable) things that can be done with works or copies thereof. Mostly they prohibit people from fixing the works into more copies, from distributing copies containing the works, from preparing new works derived from preexisting works, and from publicly performing or displaying certain works.
The other important thing to understand is that a license is fundamentally just a promise not to sue someone. If Alice and Bob are neighbors, Alice doesn't need a license from Bob in order to go into her own home, eat her own food for dinner, and sleep in her own bed. However, Alice needs some form of permission from Bob (or an applicable exception) to go into Bob's home, eat Bob's food, or sleep in Bob's bed.
So the way this all works is, copyright does not apply to the mere ownership of a work or a copy, or to the mere use of a work or a copy. If you legitimately own a copy of a work (i.e. the paperback), the copyright does not prohibit you from owning it just because it has a work in it, and does not prohibit you from using that work, e.g. by reading it. Since the copyright holder can't stop you, he has no ability to grant you a license; he might as well grant you a license to breathe air.
This doesn't mean that you own the copyright. Nor does it mean that you own the work, since no one can own that. It just means that owning a copy automatically brought along the right to read that copy more as a consequence of personal property law and the right of free speech.
If you wanted to make a new copy, however, that would infringe on the copyright, if there is one. Ownership of a copy does not automatically confer the copyright.
The basis for claiming that e-books are licensed really has to do with a way in which they are unlike printed books. Basically, it's that in order to get one, you have to download it, which involves fixing it into some storage medium, and therefore making a new copy, which is something that copyright does prohibit, and therefore requires a license or exception in the law. OTOH, if you went to the bookstore and could buy a pre-written flash card with the book on it, and slot that into your reader, you wouldn't need a license, and it would work fine as a simple sale transaction.
The idea of end-user licensing really didn't start at all until the late 1970's with software, and it has been totally unnecessary there for over 30 years. But it's quite favorable for the developers and publishers, so they keep pushing that model and sadly it's spreading.
That list looks familiar. You may not like the list, but it's the list that Congress put in the law. The list isn't comprehensive, but it is law - statutory federal law.
Yes, I know what you were referring to. My dislike for the list has nothing to do with what is and isn't in it; I dislike it because it section 107 is worded in a rather confusing way, and it often trips people up.
What it actually says, rearranged for clarity is:
[T]he fair use of a copyrighted work ... is not an infringement of copyright.
[To aid in the determination of] whether [a particular use] is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
[If the use is determined to be a fair use, by] consideration of all of the above factors[, it is irrelevant that the work] is unpublished.
[By implication, courts are free to also consider other factors to aid in the determination.]
[Although it is tautological to say it, fair use] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research[, is ultimately fair use, and thus not infringing as per the above. However, criticism, comment, news reporting, teaching, scholarship, and research which are not fair use, may be infringing.]
Thus, the list is bogus. It confuses people into wrongly thinking that the only uses which are fair are the ones on the list, and that if the use is on the list, it must be fair. Neither is true. They're just examples of things that might be fair use, or might not be fair use, depending on circumstances.
Unanimous SCOTUS opinion in Campbell vs Acuff-Rose "fair use is an affirmative defense".
And IIRC, that was not relevant to the case, which was actually about whether uses may be presumptively unfair, which the Court found was not so. Essentially it's dicta, and Harper & Row is even more so, as there was no mention of whether it was an affirmative defense until the opinion, and it too was not relevant to the case, which dealt with whether any of the uses on the list were presumptively fair, which the Court also found not to be so. In fact, I'd say that it's completely built on sand: The only mention of it being an affirmative defense comes from a cite to a 1967 House Report, which merely says that the pre-codification form of fair use was historically often raised as a defense. The report then goes on to say that it would be wrong to place the burden of proving fair use on either side, which directly undercuts the idea of it being an affirmative defense which must be raised by the defendant or else waived.
The better case to look at is Sony:
Moreover, the definition of exclusive rights in section 106 of the present Act is prefaced by the words "subject to sections 107 through 118." Those sections describe a variety of uses of copyrighted material that "are not infringements of copyright" "notwithstanding the provisions of section 106." The most pertinent in this case is section 107, the legislative endorsement of the doctrine of "fair use."
Indeed, the statute itself is the best support for the status of fair use as not being an affirmative defense: The grant of copyright itself in section 106 is limited in scope so as not to cover the territory taken out of copyright by section 107, among others. Although for reasons of judicial economy, there's no reason to even bother with fair use unless a prima facie infringement can be shown, the statute clearly states that fair uses cannot possibly be infringing, as
Primary categories that -can- be fair use include
Your list is bogus. Any use "-can-" be a fair use. However, no use is necessarily a fair use. Certainly there have been uses which weren't types you listed, and there have been uses which did fall into the listed categories, but were determined not to be fair.
Note also that with regard to the classic four prong test, additional prongs may be added if helpful, and the test isn't mean to be applied mechanistically.
A professionally produced "Star Trek" film certainly COULD compete with Paramount's 2016 Star Trek Film, "Star Trek Beyond". In fact, if it's available on Amazon, consider someone tells their spouse or parents they want the Star Trek DVD for Christmas. It's entirely possible the gift-giver (who isn't a Star Trek fan) would buy the wrong one, buying the unauthorized movie rather than Paramount's official Star Trek.
This is unlikely. The question is essentially whether the use is a substitute for the original work. Mere confusion isn't really relevant; you're looking for people who say that because they got a copy of the work which is allegedly a fair use, they no longer have a need for the underlying work.
Note that fair use is a "defense".
No it's not. Fair use is an exception to copyright. However, the person engaging in the use is better able and better motivated to make the argument of fair use than the copyright holder trying to prohibit it. For this reason it is treated like a defense as a matter of procedure.
Meanwhile, Xerox is not a genericized trademark, though some think it is.
It may be generic, the issue simply hasn't arisen, so far as I know.
The key to whether or not a trademark is generic is exactly what people think it is. If enough people think that XEROX is synonymous with photocopier, rather than being a specific brand of photocopier, it's generic, regardless of whether the Xerox company failed to try to protect its mark.
XEROX, KLEENEX, and BAND-AID are probably generic, but have simply never been challenged.
Why would you want to cut your production rate? Both reusability and economy of scale are essential in cutting launch costs. SpaceX ought to be working on internal projects that can use any excess launch capacity until there are enough customers, though, preferably ones that will help further the business. (Like electric space tugs and refueling / repair / refurbishment drones)
Holding a trademark is hardly sole ownership of a term. Even dilution doesn't stretch that far. But I agree that it should strictly be a civil matter if no fraud is involved.
Except they are, which is why they can be bought and sold not unlike domain names.
No, not that freely. Just outright selling a trademark would be considered naked licensing, i.e. the transfer of the mark, without the reputation in the marketplace that the mark stands for. The result is that the mark is treated as having been abandoned, and that any previous junior users of the mark now have seniority over you if you want to reestablish protection.
To transfer a mark correctly is a lot of work, and takes a lot of time. It's generally part and parcel of the sale of the entire business that uses the mark, so that the reputation is preserved.
And when the government tells me that some foreign group is so dangerous to us that they must be destroyed at all costs, even though I'm more likely to die from slipping in the shower than at their hands, and are so persuasive that they must be totally censored, they're trying to induce terror for the purpose of shoring up their own support domestically.
I would rather risk foreign terrorists posting videos on YouTube than allow our state to engage in terrorism and censorship. The damage that our own government can cause to us, especially since censorship and other infringements of our rights tend to spread and corrode our values, is far greater than any two bit gang can cause with mere guns and bombs.
The first rule of countering terrorists is to not allow yourself to become afraid of them. If they can't terrify you, they can't get you to harm yourself, which is the best weapon they have in their arsenal.
No, other people need to know them too, or else you leave yourself open to having government authorities declare people to be terrorists regardless of whether they really are or not. Perhaps the victims of such false accusations are merely peaceful political opponents; you won't know if they're censored, and it's hardly unheard of for those in power to use any tool against those who would limit their power or remove them from power.
We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.
Well, part of it is that even a small payment can still incur a psychologically large cost. If each user post here on /. cost one cent to read, would you want to have them load automatically? Probably not, many of them are not worth that much, and you could quickly run up a bill of a few hundred dollars a year on that sort of thing from this site alone. So instead you'd have to take more time to think about what was worth spending even a little on, because it adds up and the price doesn't really match the value to you of the thing you'd be paying for.
Something similar happens when people have metered or capped Internet usage compared to at least nominally unlimited usage.
You really can't avoid this problem unless the micropayment is so small that it is likely not worth the cost to implement. I suppose if I knew that a year's worth of micro payments for me, for everything I use, was no more than about a dollar a year in total, it wouldn't be so much that it would feel like I was wasting money on the Internet. But because the average user doesn't want to spend a noticeable amount ever, and there really aren't that many users in comparison to sites, the resulting pie of money wouldn't be much to split up. (Especially once you reduce the amount to account for lower average incomes elsewhere in the world)
Option 2: Active editors. These forums are cultivated, maintained, and very ban-heavy. As a side-effect, the forum can be held responsible for third-party content.
Not true in the US (other than, potentially, with copyright issues and the like).
Remember, the CDA was intended to encourage providers to engage in censorship. Since the previous state of affairs was as you suggest, the way that they were encouraged to censor was to remove liability for material posted by third parties. But since many sites don't care, and the CDA protects them fully no matter what they do or don't do, it didn't really work out. Also other parts of the CDA turned out to be unconstitutional.
Either way, we need to come up with some solution as automation is going to put more and more people out of work.
So what, if we invent a robot that picks up litter, we should force human beings to do it because it's good for them?
Screw that. Some people will become total layabouts, but most will find something to occupy their time which is at best not harmful, and ideally productive. Like how numerous scientists and inventors before the 20th century tended to be people who had an independent income and could therefore spend all day screwing around with insects or what have you.
A basic income -- and increased access to adult education, from remedial to graduate programs, as well as technical training -- are good responses to the decreased need for humans to work. Don't make things worse by adding paternalism into the mix.
The trick is to let you collect the stipend and make money at a job as well. Up to a certain level anyway.
Well, sure it should be in addition to what you can make working, or otherwise, but it should go to everyone. The reason being is that this is on a per-capita basis, and there really aren't that many people wealthy enough to turn their nose up at the equivalent of about $10,500 annually, so not a lot is being spent superfluously by doing this. OTOH, if you cap it at an income level that is low enough that it makes fiscal sense to create a bureaucracy to verify who should and shouldn't get it (and remember, much of the savings to the government of a basic income is lowered transactional costs in administrating it) then you're excluding a large enough number of people who are likely politically active, donate to campaigns significantly, etc.
FDR saw the same logic behind why all worker pay is taxed to fund social security, even for people who don't really need to receive it: "We put those payroll contributions there so as to give the contributors a legal, moral, and political right to collect their pensions . . . . With those taxes in there, no damn politician can ever scrap my social security program." (That is, if you tax people and don't give them anything for it, they'll try to dismantle it, so don't do that)
If Steamboat Willie fell into public domain in the USA, there is no reason to think that would somehow grant other people the free privilege to use Mickey Mouse in their own works, because Mickey Mouse is trademarked.
In Fleischer Studios, Inc. v. A.V.E.L.A., Inc, the character of Betty Boop was at issue. Without getting too deep into the weeds, the gist of the dispute was that Fletcher claimed to hold copyrights and trademarks on the Betty Boop character, and AVELA was printing up Betty Boop art. There, the situation was similar to a public domain character, because Fleischer turned out not to hold the copyrights at all (and it isn't the court's problem to figure out who did and to drag them into this suit), but did have trademarks. The district court, on remand, said: "The words 'Betty Boop' used on goods bearing the image of the character Betty Boop self-evidently describe those goods, and are not referring to something else. ... In addition, there are no words other than âoeBetty Boopâ available to describe or name the character Betty Boop. As noted above, these proceedings have already established that Defendants may so use the character over Plaintiff's objection [because the Plaintiffs could not show that they held the pertinent copyrights]; Defendants must also, therefore, be able to identify this character by name."
End result: The Fleischer trademarks didn't prevent the free use of the trademarked character by a third party, where copyright was not a factor.
And given that the way that precedents work is that you look more for analogous situations, rather than those which are exactly alike, it requires no real effort whatsoever to see how this would apply in a future MICKEY MOUSE trademark case.
However, given the repeated long-windedness of your replies, you evidently have far more patience for discussing this matter than I.
Well, this is both my job -- I'm a copyright and trademark attorney -- and also my hobby. And while I admit to being long-winded, is that really the worst thing in an Internet argument?
Yes, but that's because the name Peter Pan, as it refers to the name of the main character in the story that is now in public domain, was not under any trademark in the first place (any trademark status it has since acquired, such as the name of a particular brand of peanut butter, or bus services, or the like, happened after the work fell into public domain).
Nope.
First, names are not copyrightable; even during the time when the original Peter Pan plays by Barrie were copyrighted, the name could have been used by others without running afoul of the copyright.
Second, while patents require novelty, i.e. that something has never been done before, trademarks do not. And while copyrights require originality, i.e. that something originates from an author, rather than having been copied, trademarks do not. It is perfectly acceptable to use pre-existing material to make a mark, e.g. APPLE for computers, and it is even perfectly acceptable to copy someone else's mark provided that it is not then used in an infringing or diluting manner. A classic example is the PERSON'S mark used for clothing: In 1977, a Japanese clothing firm began using the PERSON'S mark in Japan, and in 1981 an American visited Japan, bought some samples of PERSON'S clothing, took them to America, and began manufacturing and selling his own line of clothing in America using the PERSON'S mark. In 1985, the Japanese firm began selling in the US, and the next year, the two firms realized they were now both in the same market with the same mark. They went to court, and ultimately the American won, since he had been the first to use the mark in the US; it didn't matter that he copied the mark from the Japanese, because trademarks, like copyrights, are not really international in nature, and use in Japan didn't count for anything in the US.
Third, your history is wrong. The Swift Company's divisions E.K. Pond and Derby started selling PETER PAN brand peanut butter in 1928, at a time when the plays were not only copyrighted, but Barrie himself was still alive and still held the rights. There's no indication that the name was used with permission, that there was a license agreement, or that there was any payment, or that Barrie even knew about it. Great Ormond Street Hospital, which wound up with the copyrights says that they never gave permission or got paid during the remainder of the time that the plays were still copyrighted in the US.
Had the character been called something that was simply descriptive of him, such as "Orphan Flying Boy"
You have a way too narrow view of what's descriptive in a trademark context. A mark is descriptive if it has an ordinary meaning and is used in conjunction with goods or services directly related to that meaning. Show anyone a picture of the Mickey Mouse character and ask them what that is, and they'll tell you that it's Mickey Mouse; the name of the character is a characteristic of it. If it weren't, you could say that no, the picture is of a character named Dan O'Neill, and people would believe you.
There is nothing magic or special about the US's copyright or trademark laws that would suggest that what would happen within the US should be even slightly different than what has already happened elsewhere when those jurisdictions have extremely similar laws.
No, there are two special things. First, many other countries regard international treaties such as the Berne Convention as being law which can be used by parties to a suit. The US does not; we regard most treaties to simply be obligations on our government to abide by them, but our actual law is what our own government enacts. Maybe they'll pass laws that comply with their treaty obligations, maybe they won't. We've been in violation of the TRIPS Agreement and the Berne Convention with regard to our homestyle exception (it concerns publicly playing the radio without owing royalties or needing permission) for well over a decade now and not
You insist on alleging that somehow, by making the Steamboat Willie cartoon public domain, that this should cause trademark dilution.
No, not at all. I'm saying that it will cause the MICKEY MOUSE mark to suffer from genericide, at least with regard to certain types of goods.
OTOH, I agree that the mark would not be completely invalidated; there is ample precedent for fictional characters to be both in the public domain with regard to copyright, while also being protected trademarks. The key, however, is that the characters can only be trademarks with regard to goods that do not interfere with the public domain use of the characters in a copyright context, due to the superiority of copyright over trademark in the law. My go-to example is the character of Peter Pan, which is in the public domain in the US because the works in which he originated are in the public domain in the US. Anyone here can freely use the character in any manner of creative work; in fact a new Peter Pan movie was just released recently. However, at the same time, there are also PETER PAN trademarks for intercity bus services, and for peanut butter. That the character cannot freely be used to sell peanut butter does not prevent anyone from freely writing new books, performing the original J.M. Barrie play, making a film adaptation of the play, etc.
When Steamboat Willie enters the public domain, the same situation will occur for the Mickey Mouse character as he was in that work; he'll be freely usable, since there will no longer be any limitation on the creation of new derivative works based on Steamboat Willie. (That later changes to the character will still be protected until the works in which they originate also enter public domain is well established in, IIRC, Silverman v. CBS, which went through this already with the infamous Amos 'n Andy characters) Any trademarks that Disney has on MICKEY MOUSE which would interfere with the creation of copies of the existing work or new derivative works will cease to be valid. However, MICKEY MOUSE trademarks which are totally unrelated to creative works -- such as if Disney starts selling MICKEY MOUSE brand motor oil -- will remain perfectly valid.
Freedom to copy and distribute the work ... does not make the title character public domain, only the work itself.
There's actually no such thing as a copyright on a character. Only works can be copyrighted. If characters enjoy any copyright protection at all, it is due to being part of a copyrighted work, subject to whatever happens with that work.
This is not substantiated by any precedent where the name of something is not otherwise a general description of the trademarked item
In the US, trademarks come in five strengths: generic, descriptive, suggestive, arbitrary, and fanciful. Generic marks can never be protected, and suggestive, arbitrary, and fanciful marks usually are. Ironically, a stronger mark (fanciful are the strongest) may sometimes also cause a loss of protection, as I'll get to in a moment. Descriptive marks, come in a further two types: Merely descriptive marks, which are not protected, and descriptive marks with secondary meaning, which may be protected.
DIGITAL is a good example of a descriptive mark for digital computers; it's not generic (that would be COMPUTERS) but does merely describe the computer at hand. Anyone who makes or sells digital computers can describe their computers as being digital in nature; no one can have exclusive rights in this. However, a digital computer company that uses the DIGITAL mark in conjunction with their computers a lot -- like the much-loved Digital Equipment Corporation (also known as Digital, and as DEC), whose logo was the word "digital" may be able to show that they have built up a sufficient association with their mark and their goods in the minds of consumers that they are entitled to protection for the descriptive mark where secondary mea
They already have lost the copyright on Steamboat Willie in several international jurisdictions.... the trademark, however, still remains entirely valid in those jurisdictions, and does not dilute Disney's ownership at all.
Well, my analysis is limited to US copyright and trademark law. I have no idea what they do in other countries.
To the best of my understanding, the result of that case did not lead to the dilution or surrender of any trademark owned by any party... it merely established that, as should be expected, a public domain work may be freely copied.
It did more than that. It established that trademarks cannot be used to interfere with the public domain status of public domain works. A public domain work can not only be freely copied and distributed, but it can serve as the basis for new, derivative works. If trademarks prevented the use of a public domain work as the basis for new derivatives, it would be taking on a copyright function, which Dastar tells us is absolutely not allowed.
So now we know that once Steamboat Willie enters the public domain, anyone in the US will not only be free to make and distribute copies of it, they will also be able to create new works which include the Mickey Mouse character. This then brings us to the Shredded Wheat case.
The sine qua non of a trademark is that all goods bearing the mark originate from a common source and are perceived to do so by the market. If all computers marked with the APPLE trademark originate from Apple, Inc., the APPLE mark may be viable. But if Lenovo, Dell, and HP all make computers with the APPLE trademark, the APPLE mark is no longer a viable trademark. This is why trademark holders are always going after anyone they think is infringing; if the infringer were to be left alone to infringe, goods bearing the mark would have different origins, and the mark would no longer be viable.
Likewise, this is why trademark holders also try to urge the public to use trademarks 'correctly.' If most people who buy computers refer to Apples, Lenovos, Dells, and HPs as APPLE computers, this indicates that the mark is not identifying the common source to the public, and again can result in the mark no longer being viable. The way that this happens in real life is that consumers start using the mark to describe the good itself, rather than the origin of the good. For example, Apple would tell you that a computer they make is not an APPLE, but an APPLE-brand computer. Similarly, you aren't supposed to wear LEVI'S, you wear LEVI'S-brand blue jeans. A failure to distinguish between the good and the source of the good caused marks like ELEVATOR and TRAMPOLINE to become generic. KLEENEX has teetered on the edge for years, and Xerox runs ads to try to protect their XEROX mark, my favorite being "You can't xerox a xerox on the xerox," meaning, you can't photocopy a photocopy on a photocopier. Of course, real human beings xerox xeroxes on xeroxes all the time -- if anything will save XEROX it will, ironically, be the march of progress rendering xeroxes obsolete. (Similar thing happened to SANKA, which nearly became generic when it was basically the only brand of decaf coffee and was synonymous with it -- to the extent that this is the origin of the association of orange with decaf -- but when other brands showed up, the SANKA brand was able to be revived, albeit at the expense of having near total domination of the market)
In the SHREDDED WHEAT case, what happened was that Nabisco had a patent and was therefore the exclusive manufacturer and seller of shredded wheat. Their mark was not quite generic at the time, but effectively had secondary meaning simply because there were no competitors manufacturing the same product due to the patent. Once the patent expired, it turned out that SHREDDED WHEAT merely described the good, rather than Nabisco's version of it, and whatever sort of trademark protection Nabisco might have been able to claim during the patent term was lost.
There have been many adaptations of The Wizard of Oz, and while just as with original works, not all have been good, enough have been that it's worked out quite well.
Copyright covers pretty much any new work, even if it is a copy of an old work.
No it does not. Copyright only protects original material, i.e. material which you, the author, originated. Anything you copied, you don't get a copyright on. This is an absolutely fundamental part of copyright.
Imagine you have a copy of the Mona Lisa, a public domain work. You paint a small red circle in the corner. The most you now have a copyright on is a small red circle in the corner. I can copy the entire rest of the Mona Lisa -- from your canvas with the circle! -- and so long as I don't copy the single bit you added, I'm totally in the clear.
The relevant bit of the law you want here is 17 USC 103(b):
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
The Bible is not copyrighted, but translations of it may be. And if you reprint an old book, and add some new material, such as an introduction, only the introduction is protected, not the reprint of the old book.
If you look at it from a creative perspective, why do you have to reuse someone else's character, story or universe?
Because I have a good idea for something that can be done with those, and it improves the world to have such works created. Let's take Shakespeare -- he didn't come up with the story of Romeo and Juliet. It derives from the story of Pyramus and Thisbe, from the first century. Dante referenced it. An Italian version appeared long before Shakespeare, called Mariotto and Gianozza, and was then readapted by another author into Giulietta e Romeo. Eventually it was translated into English by Arthur Brooke, as The Tragical History of Romeus and Juliet, and Shakespeare made a number of theatrical adaptations of Italian stories (that's why so many are set there).
And of course, after Shakespeare, there are various adaptations of that -- in fact, Shakespeare's original text wasn't terribly popular for some decades, since people preferred a slightly different version where Juliet wakes up before Romeo dies, so that they get one last moment together before he dies and she kills herself. Prokofiev adapted it for ballet. There are dozens of opera adaptations, not to mention the famous Tchaikovsky symphonic adaptation. Then there's West Side Story. And it probably is the one play that has had the most film adaptations made of it; Georges MéliÃs, did one. And it was the basis of, and subject of, the well-received film, Shakespeare in Love.
But according to you, that's all just crap, and we should've stuck with Ovid's original Pyramus and Thisbe -- assuming he wrote it, which is actually pretty unlikely; it probably originated in the ancient Middle East.
My response: Fuck you. All these many changes and modifications and tweaks and responses and responses to the responses have been an improvement in the world. There's nothing in the slightest bit wrong with creating a derivative work.
From a moral perspective, is it good that you have vultures looking to profit the moment they can use it without paying royalties?
Yes, absolutely, because the vultures are more moral than the copyright holder who has created a work but has locked it away, only granting access or copies to those who will pay him for it. The vultures get no monopoly; they can use it without paying royalties, but anyone else can copy their editions, and it's never been easier to do so than it is now. The price will drop to the real market value of the work -- which is at or nearly at zero -- and access to it will improve, since now people who wanted it but couldn't afford it, can get it for free.
Copyright is censorship. It's a private-public affair, in which private parties decide what and how much to censor, and the government helps them enforce it, but it is at best tolerable in the purpose of a greater good. It is by no means good in itself.
I can easily argue for copyright where it's a repository of knowledge that you would like to build on stone by stone.
People can argue anything; I bet you a dollar you can't do so convincingly.
is there any weighty arguments that makes it imperative we take it away from the estate and into the public domain?
Yes. It was never the estate's to begin with. Works are inherently in the public domain. Copyright only exists when we gin it up out of thin air. And it isn't created by authors, it's created by everyone else in the world who the author would like to abide by it. To claim a copyright without the public willingness to agree to it is like trying to claim that you own the moon; you can claim to til you're blue in the face, but you'll just be a nut.
The public is willing to give authors copyrights for a little while, because it serves the public interest to do so. Since authors start with no copyright, and only get copyright through the good graces of the public, authors have no cause for complaint that the gift is li
It is only fair to people who actually never create anything.
I used to be a professional artist, and it never bothered me. Then again, I was able to make a living at being an artist without relying on exploiting copyrights. It's hardly unusual. The trick is to sell artistic services instead of many copies of finished works. Even selling single copies of finished works can provide a living without copyrights.
But even assuming that you're right, so what? Those people outnumber the authors, and the majority rules. It's not like copyrights are a natural thing, either. (In fact, they're opposed to the natural right of free speech, being a form of private censorship enforced by the government) Either you convince other people to respect your wishes -- which they may only be willing to do on their terms for their benefit as they consider fair -- or else you get no rights at all. So even the least protection is something authors should be grateful for, really.
If you have spent your whole life writing stuff, novels, plays, music barely surviving at minimum income, just because the market plays you, or you are bad at marketing, no one 'discovers' you, no one invests into you, no one cares about you, and the greedy bastard corporation comes and takes all your stuff for free and makes billions ...
If someone else can figure out how to do that when I never could, and gets my work out to the world in a way that I never was able to, I'd be happy. Sure, I'd like to get some of the money, but if I had to choose between, on the one hand, my work never reaching anyone and I'm poor, and on the other hand, my work reaches many people and is popular and I'm poor, the second one is better than the first.
But the mouse is still a registered trademark. And you will lose
No, the trademark will largely lapse when the copyright does. This is pretty well settled law, dating back almost 80 years. I have discussed this elsewhere in this thread if you care to look into it.
trademarking components of works is really a separate problem that's gone into overdrive lately. Every major and minor character, event, location, etc is being "trademarked" these days. (Harry Potter for example...every proper noun in the series and some that aren't is a registered trademark. That's wrong on some level.)
Pfft, they're amateurs compared to TSR. Also I'm fairly dubious that they're getting registered marks. They may be claiming common law trademarks, but I don't see every proper noun from the books making it through the PTO.