What if you write a book, it is sold in bookstores, but it is not taken seriously, and most copies wind up getting destroyed after a while (whether throwing out unsold copies to free up shelf space, or people read them, then tear pages out to use as kindling, or whatever). I bought a copy, however, and I kept it in good condition. Many years later, the book becomes a huge success, and book collectors become interested in the first printing.
Why shouldn't I be allowed to sell my copy to a collector for a tremendous profit, without having to share it with you?
As an example, a copy of Action Comics #1, a comic book from 1938 with a cover price of 10 cents, and which is still copyrighted, was sold earlier this year for $1.5 million.
If you had your way, we couldn't even have used book stores.
A requirement of fair use for parody is that only the minimum amount required be taken. Well, that means *none* of the video/sound need be taken. The creator of the parody can reproduce all of that themselves. Just because they aren't up to that quality of production is no reason to strip the copyright holder's rights.
Of course, then the parodist might not be able to convey his commentary about the work. His half-assed staging of the scene might be so bad, so unrecognizable, that no one would be able to figure out what the video was about.
And what if we applied your rigorous standards for the amount used elsewhere? The Daily Show routinely shows clips of politicians, news commentators, and other people saying one thing, then contradicting themselves (or being contradicted) elsewhere. Well, technically it isn't absolutely necessary that those clips be run in order to make a point about hypocrisy or stupidity or whatever. Jon Stewart could just quote his target's first statement, and then quote the second statement. No video or audio clips needed. Of course, this would drastically undercut the power of what he's doing. And if you were disinclined to believe him, but would believe video footage, his ability to comment on the news at all and reach his audience might evaporate.
And that needn't be limited to a news comedy show. Straight news programs -- if they're doing their jobs right -- also have good reason to use footage without authorization, in order to expose official wrongdoing or bad behavior.
Frankly, I think you're going way too far. So long as the material isn't used in a totally gratuitous fashion, and there is a real fair use involved, I don't think that the fact that less might have been used is an appropriate artistic choice for a court to impose upon an author, especially when you consider how extreme the penalties for infringement are.
We seem to agree that it's a moot point in this case because they aren't creating parody of Downfall at all.
It doesn't have to be a parody of Downfall, it has to be a parody that requires the use of Downfall. A Downfall video where Hitler rants against Downfall videos, or rails against Downfall videos being removed, would probably be fair uses, in much the same way that making fun of the Walt Disney corporation often involves using copyrighted character designs and scenarios from their films, even though their characters and films aren't themselves the targets of the parody.
There is nothing stopping the people making the videos from creating those scenes themselves...except that they don't want to put forth the effort.
So? Sweat of the brow -- or lack thereof -- isn't relevant for copyright. Weird Al could surely poke fun at songs without having to recycle their music, merely adding new lyrics. After all, it isn't as though an ordinary music reviewer writes his review out in stanzas, for the reader to sing aloud, when he praises or pans something. That he doesn't do as much work as he possibly could isn't important, just as when we grant copyrights, it doesn't matter if the author worked hard or barely lifted a finger. But he wants to use the song against himself. It's an artistic choice, even if it relieves him of the obligation to compose totally new music, and he has a right to do so. Copyright doesn't get in the way, so long as he doesn't take more than he needs to do that, rather than the bare minimum to make fun of the song in any way at all.
Their specific requirements for these videos is to have an infuriated Hitler railing on about something, this doesn't require Downfall at all.
Well, unless it directly involves Downfall, as I mentioned.
I'm sorry, I must have missed it. Which article, and where in the article, were these issues addressed? Sure, the FA's keep calling the videos parodies, but they don't say why they're parodies of the work they use, nor do they distinguish them from satires, given the difference between the two for fair use purposes. Or was it something else you wanted to point out?
So it sounds as though you're going to want to read over 17 USC 512(g), which covers this sort of thing.
Long story short, the idea is that if material is taken down due to a DMCA notification, which service providers (including YouTube, given how that term is defined in the law) obey in order to be protected from lawsuits regarding things other people do with their service, it can be put back up in a way that continues to protect the service provider. But the two opposing parties are made aware of each other so that they can hash the issue out in court, possibly with the court ordering that the material be taken down again.
Here's the relevant subsection:
(g) Replacement of Removed or Disabled Material and Limitation on Other Liability.--
(1) No liability for taking down generally.-- Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.
(2) Exception.-- Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider--
(A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material;
(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and
(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider's system or network.
(3) Contents of counter notification.-- To be effective under this subsection, a counter notification must be a written communication provided to the service provider's designated agent that includes substantially the following:
(A) A physical or electronic signature of the subscriber.
(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
(D) The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
(4) Limitation on other liability.-- A service provider's compliance with paragraph (2) shall not subject the service provider to liability for copyright infringement with respect to the material identified in the notice provided under subsection (c)(1)(C).
making a parody where the subtitles are the only original content and everything else is from the copyrighted work is not gonna fly in court.
It doesn't matter, for the purpose of determining fair use, how much additional material was added. Rather, it depends on how much of the underlying work was used, and how important that portion was to the underlying work. Your criterion is often invoked by infringers who legitimately claim that because they added so much to the portion used, their use was fair, and is just as often rejected by the courts, who don't care about that.
In any event, this isn't "the entirety of the video from 'The Downfall.'" The Hitler scene is just one part -- albeit a rather powerful part -- of an entire movie about the last days of the Nazis in Berlin during the war.
Of course, the thing that might trip them up is the ridiculous dividing line that the courts have been drawing between parody and satire. When a use is a parody, it makes fun of the underlying work itself, and therefore must draw at least somewhat from that underlying work, in order to come about. It is essentially commentary that ridicules the work, or is at least itself ridiculous. Imagine, for example, making fun of Mickey Mouse and Disney by having the Sorcerer's Apprentice scene from Fantasia involve Mickey summoning up a destructive horde of copyright attorneys. (We are indeed capable of reproducing by fragmentation; fear us) That could be a parody.
Satires, however, are making a point about society generally, or at least about something other than the underlying work. In that case, it doesn't absolutely need to borrow from an underlying work, and the courts have not been as generous to satire as they have been to parody. For example, there was a case in which someone was making fun of the OJ Simpson trial by using Dr. Seuss characters and artwork. Because the use wasn't commenting on the used material, but just borrowing it for an unrelated purpose (unless OJ was right, and the murderer was the Lorax or something), it wound up not being a fair use.
Now, I think this is a dumb distinction. The main issue should be whether the use is transformative, even if it doesn't 'need' to use the underlying work (although a showing of necessity should count for something, considering other doctrines, such as merger, where it is also relevant), along with the rest of the fair use analysis, in particular, the fourth factor (harm to the market for the underlying work). But that's what we're stuck with at the moment. And since most of the Downfall videos (though not all -- the one where Hitler is upset about how many Downfall videos there are would seem to be okay, ironically) don't make fun of anything that requires the use of Downfall in order to do it, things may not go well.
Now, how long until someone follows up on this, does a bit of research, and has Hitler upset about this particular aspect of Fair Use under US copyright law, citing the statute and caselaw? Perhaps Generals Keitel, Jodl, Krebs, and Burgdorf (the four guys that he has stay in the room) could each stand for one of the four prongs of the analysis?
I can't think how the right to be identified as author could be harmful to public interest.
Why should the public suffer a restriction on speech, or have to utter compulsory speech, barring a very important reason to do so? What's that reason here? It certainly isn't that authors will withhold their works without such a 'right,' as they've never had it here before, and there's plenty of authors (nor are there dramatically more in places that do grant such a 'right').
As I said elsewhere, if there is actual fraud, then we've already got laws to cover that. Beyond that, I see no affirmative reason to do it.
No. That is your and some American forefather's interpretation of why the copyright exists.
Well, that's good company to be in. Of course, it is also the reasoning of the British, when they created what we think of as copyright, even earlier in the 18th century. And it's been the opinion of at least the US courts up to the present day. And, frankly, it's the only reason that is compatible with the idea of a natural right of free speech.
In other countries, the right to be recognized as an Author of a work is already perpetual (as well as untradeable)Plainly wrong. Who says it isn't in the publics interest that creators are recognized perpetually.
Again, you're failing to explain your assertions. In any event, I say it isn't in the public's interest. People naturally have a right of free speech; it applies even to statements which are matters of opinion, or even things which are false. It is not a right that should be interfered with unless there is a very compelling reason to, there is no better alternative to limiting speech that would address the reason, and the restriction accomplishes what it needs to do, without going one bit further. And that's if you accept the idea that speech should be restricted at all. The absolutist position is appealing, and has been seen at even the very highest levels in this country, and perhaps elsewhere.
Here, you want to prohibit people, with the force of law, from speaking freely. What if there is a dispute as to authorship, possibly without any solid proof (e.g. were the plays of Shakespeare written by Shakespeare, or by someone else?) What if you want to reprint a book, but you don't want to attribute or misattribute it to anyone? What if the author doesn't want to be recognized, or wants to credit someone else (e.g. a ghost writer), but you ignore his wishes just as much as you do everyone else's?
I could understand restricting fraud: If I write a book, and I list someone else, someone famous, as the author, this could mislead people into buying it. And if I were famous, I might take a book written by someone else, take credit for it, and thus exploit my advantage unfairly. But we've already got laws against fraud. We don't need more laws to cover the exact same thing. And the victim of fraud is often not the actual author, but the customer who was defrauded.
Further, why should the right be perpetual? The author can not suffer injury once he's dead. But the public, as a whole, will still be around. Their right of free speech will still be suffering from a limitation. Why should this last forever? How does it benefit them? And in a democratic society, which recognizes free speech as one of the most fundamental rights to be protected (and which doesn't recognize copyright as such; that's just a convenience for the public), how could such a restriction be tolerated?
That is your claim
Restrictions on speech always harm the public. They may carry with them some benefit to the public, which outweighs the harm, but I've yet to see such a benefit to the public shown in this case. Further, what benefit could outweigh a perpetual restriction?
Well, they already have them where I live. And they damn well don't want to lose them.
What authors want is irrelevant, save for how the public benefits overall as a result. Think of dairy cows: The cow might want a solid gold cowbell, but the dairy farmer is only going to spend money on the cow's well being if it improves his bottom line. He will not waste money on the cow just for the hell of it, regardless of what the cow wants.
And in any case, if you don't live in the US, I don't care much what your copyright laws are, if you keep them to yourself. Paying even the tiniest iota of attention to foreign copyright laws has seriously harmed US copyright law. The sensible thing for us to do is to withdraw from all of our copyright treaties, unilaterally grant national treatment to foreigners (i.e. nationality will be irrelevant for applying for a US copyrig
While I'm not familiar with their platform, what I think he's trying to say is that information which has been published -- i.e. made available to the public by the author -- could be shared more freely without permission than it is now, while information which remains private would be shared less freely without permission than it is now.
Drawing a distinction based upon the choice of the appropriate person (e.g. the copyright holder of creative works, the person that private records are about, etc.) to make information public, and then only permitting more sharing of that which has willfully been made publicly known, doesn't seem that difficult, or odd of a position to take.
I'm only guessing, of course, but I bet it's a good guess.
Why? Copyrights exist to promote the public interest by encouraging authors to create and publish works that they otherwise would not create and publish, while minimally restricting the public in terms of both the scope of protection and the duration during which the works are protected.
A perpetual right is not only unconstitutional (the Constitution requires that copyrights be granted only for a limited time), but clearly cannot ever promote the public interest precisely because it is perpetual. Further, for nearly all of our history, we've never had rights like that in the US, and even today, the closest we get is to barely have them for a fraction of works (almost nothing qualifies, by design). Yet we still have lots of works being created and published. Pretty clearly, many authors simply don't require such rights as you describe in order to be incentivized to create and publish; they'll do it for less, in which case it would be wasteful to give them more. (Like the $500,000 screwdriver of military spending infamy) I doubt there would be a big explosion in the number of authors creating and publishing works if we did grant them; most of the rest of the world grants those rights (although not perpetually AFAIK), and they don't totally overshadow the US in terms of creative output.
No, moral rights are simply bogus. They harm, rather than benefit, the public; they aren't so desired by authors that authors are willing to actually do or not do anything in order to get them; they aren't even sensible (who cares about these things outside of matters of fraud, which there is already a law for); and they are particularly harmful to free speech (whatever the uses of works that authors might be offended by, I am certain that those uses are more important than the easily hurt feelings that the author has; more speech on public issues is always better than less, and there's nothing wrong with recycling someone else's).
Require authors to register their works if they want copyrights for published works (have, say, a 1 year deadline from the date of publication to the date of filing), to renew those copyrights annually (or perhaps biannually) to keep them, to register transfers of copyright to others in order that the transfer might be effective, and to print identifying information in their works upon publication (e.g. title of work, year of publication, name of author) and more information (i.e. copyright application number, copyright registration number) once that information is issued to the author.
Copyrights traditionally have had registration, renewal, and notice requirements. Patents have registration, renewal, and notice requirements. Trademarks, if registered, have renewal and notice requirements. Real property requires deeds to be filed and records to be maintained with the government. Certain personal property, such as cars and boats, are usually the subject of recordkeeping requirements.
It's not an unusual requirement, it needn't be costly or time-consuming or difficult, and it is traditional. And it solves the problem: if you want to know whether something published is copyrighted in the US, a quick search based on the registration number or other identifying information will tell you. Unpublished, unregistered works would still be a bit tricky, but it would help to limit protections on such works so as to encourage authors to publish or perish, as it were. Unpublished works don't benefit the public, after all, so we don't want to encourage authors to let works molder in such a state. The only reason to even minimally protect them is to let authors finish a work, then shop it around without having to fear someone pirating the manuscript.
surprisingly relevant considering it was made over 170 years ago.
Why wouldn't it be relevant? The most fundamental aspects of copyright really haven't changed since the early 18th century. We've been screwing up the implementation of it for a while, but the basic idea remains sound.
You know another thing that would be nice? Knowing what's copyrighted and what isn't. Under a fixed-length scheme, I can look at the copyright date and know if it's public domain or not. Now, I've got to know when the author died. Basing copyright on a lot of extensions would have a similar problem.
So long as the initial grant of copyright, renewal terms, and transfers required registration with the US Copyright Office and the inclusion of a unique application or registration number in all copies made after those numbers were issued, as well as some other information printed in all copies (e.g. author's name, work's title, year of publication), and copyright holders were required to keep those records up to date if they moved (perhaps on pain of a reduction in the available remedies for infringement), it would not be problematic. Real property owners are required to file information with their local Registry of Deeds to keep master records of ownership up to date. Why should we tolerate sloppy or no bookkeeping for copyrights? It isn't as though artists are somehow incapable of handling simple paperwork -- after all, they live in our society, which is full of such things for everyone (e.g. change of address, voter registration, taxes, property, leases, etc.). Note that patents and registered trademarks require frequent filings to be maintained, and that copyrights traditionally used to as well.
If I were elected queen of my planet (or whatever), I'd decree a copyright of 20 years, no ifs, ands or buts.
Unfortunately, for a lot of things, 20 years is too long. That's why renewals and registration are better: copyrights are only issued upon request, and only for as long as the request is maintained, up to some maximum. It requires a bit more work logistically, but you get a far more efficient system in terms of what's copyrighted and what isn't.
Oh, I don't know. In the world of real property, there used to be something called a fee tail. Basically, this was a form of ownership in which land was owned by A, and all of A's heirs. It could not be sold or otherwise gotten rid of, unless the family line died out (although this could cause massive lawsuits if one branch of the family tree died, and others vied to take over). In practice, it could not be rented or mortgaged, since the tenant would be kicked out as soon as the person they dealt with died. This tended to make the family that owned it impoverished, if they could not directly use it themselves, and tended to cause the land to go to waste, since it could not be moved around in the market so as to be put to the best use.
It was a huge pain in the ass. When the US broke away from England, we more or less abolished it. Thomas Jefferson regarded getting rid of it as one of his main accomplishments in life. Most other places have abolished it since.
Long copyright terms have a similar effect. After all, when copyright terms are short, and expire, no one is removing the fact of authorship from the authors. No one is prohibiting the authors from continuing to create works that follow up on their previous works. All that is happening is that the field is being opened up for competition on their back catalog. More people get to enjoy the work, as it becomes available at a lower price (or free). Translations become available, if they were not before (or more, at least), further expanding the reach of the work. Some authors may make derivative works based on the work; these works do not diminish the original in any way (Do the ruby slippers in the movie version of The Wizard of Oz make it impossible to enjoy the book, which has silver slippers, instead? Of course not!) and are not required reading. If they're good, then good. If they're bad, then ignore them. In some instances, they may turn out to be better than the originals on which they are based. (Wouldn't be hard in the case of Star Wars prequels)
Well, if you use very short terms of, say 1-2 years, but more of them (perhaps a maximum length of 20 years), you increase the number of opportunities for an author who has sought copyright (indicating that they want it) to fail to renew the copyright (indicating that they no longer care), thus getting the work into the public domain that much sooner. Since the cost and effort to renew is minimal (a couple of blanks, a couple of checkboxes, send it in over the net if possible, by mail otherwise; the fee could be as low as $1 for all I care, so long as it isn't free) it's no hassle for the author.
Fair use says you can quote excerpts from textual work, not the entire work.
No, it doesn't. Fair use says that if a use is fair, it is not infringing. In order to help determine whether a use is fair, several different factors are considered. One of them is the amount and substantiality of the portion of the work used. Thus, the more you use, or the more important parts you use, the less likely that the use is fair. However, it is entirely possible to use all of a work (necessarily including all of the important parts of the work), and still have the use be fair, just as it is entirely possible to use only small excerpts from a textual work, and have that use be unfair. The amount and substantiality factor is only one factor, and not the most important factor, in determining fair use.
See for example, Sony v. Universal, in which entire works may have been copied, but the use was considered fair, or Harper & Row v. Nation Enterprises, in which 300-400 words were taken from a book of over 450 pages was found unfair.
There are no bright line rules in fair use. Each case has to be considered on its own merits.
Extending this to pictures, it should be ok to publish a small portion of the picture, but not the entire picture.
Well, that's not really a reasonable way to look at the issue. Here's what the court said in Kelly:
3. Amount and substantiality of portion used.
"While wholesale copying does not preclude fair use per se, copying an entire work militates against a finding of fair use." Worldwide Church of God, 227 F.3d at 1118 (internal quotation marks omitted). However, the extent of permissible copying varies with the purpose and character of the use. Campbell, 510 U.S. at 586-87, 114 S.Ct. 1164. If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her.
This factor neither weighs for nor against either party because, although Arriba did copy each of Kelly's images as a whole, it was reasonable to do so in light of Arriba's use of the images. It was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information about the image or the originating web site. If Arriba only copied part of the image, it would be more difficult to identify it, thereby reducing the usefulness of the visual search engine.
The Kelly court found in favor of the search engine that made thumbnails.
The effects of this right would be destabilising the current system without proposing anything to replace it.
Well, it does propose something to replace it. It's of less immediate economic value to the copyright holders, but it would be people sharing works alongside whatever authors and their publishers are doing (some people would buy copies rather than get free ones, for various reasons; look at how many public domain books there are in any decent bookstore).
If you changed this to require compulsory licensing for copyrighted material at a fair and nondiscriminatory rate then I'd agree.
Hm. Do you think that authors should get a cut whenever you lend, rent, or sell a used book? If you quote a line from Star Wars when you're hanging out with your friends, should you be required to put a few cents in the collection jar for authors, or face civil or criminal penalties?
Merely because it involves a creative work, or even money changing hands in conjunction with that work, that does not mean that copyright holders are entitled to a cut. Copyrights only make sense when they are as great an incentive as possible to authors to create and publish works that they otherwise would not, where the restrictions on the public are as minimal as possible in scope and duration, all in order to provide the greatest public benefit at the least public cost.
So long as the public would be better off, accounting for both the increase in freedom as to being able to engage in otherwise infringing behavior, and the possible decrease in the number of works created and published, such a change would be worth implementing.
Plus, legalizing file sharing -- if kept strictly non commercial, meaning no money changing hands, no advertising on sites engaged in sharing or anything related to it (e.g. trackers), no file sharing ratios of any sort, no donations or tip jars, etc. -- would bring the law into line with what are apparently our social norms of behavior. The law should generally reflect these, lest laws be seen as oppressive or unjust, not worth following or respecting. Bad laws engender disrespect not only for themselves, but for good laws as well. See the example of Prohibition in the US, where most people agreed at the outset that it would be good for society to ban alcohol, but the law was widely flouted, giving rise to massive amounts of official corruption, organized crime, violence, murder, etc. Sometimes laws that go against social norms are justified, e.g. the government breaking down segregation in the US against the wishes of much of the white majority in the South, but only if the issue is of pressing importance. I don't think that banning non-commercial file sharing by natural persons is more like desegregation than it is like Prohibition. Your opinion may differ.
Have you ever seen Dogville? Good movie, and beyond the cast and crew, it required little other than a room.
And Shakespeare did most of his best stuff in an open-air theater, with no sets, no stage lighting, nothing much for sound (maybe some music), little in the way of props, decent (but not period) costumes, and so few actors that they had to double up (i.e. some actors had to play more than one part during the same play). And so, at the first performance of Hamlet, on a sunny afternoon, the audience would see a man carrying a lantern, squinting, and saying, to someone plainly visible on the other side of the stage "Who's there? It's midnight," and understand that even though it is a sunny day, it is a dark, dark night. The ghost appears shortly thereafter, and is creepy, even in the sunshine at 2pm. (Dramatic conventions are also where stereotypical ninja outfits come from: they're really Japanese stagehand outfits, because it's a hell of a surprise when a stagehand that you're supposed to ignore suddenly attacks one of the actors because they were actually a ninja)
Good writing, directing, and acting are what's important. The rest is a crutch for people who don't have good imaginations. It can be a fun crutch, but it isn't the absolutely vital part. Star Wars can be done as a stage play. In fact, it has been. One version apparently had 10 actors (re: doubling up, Chewbacca and Darth Vader were played by the same actor) and a special effects budget of $100.
Flying everyone to Tunisia might add verisimilitude, but it isn't necessary.
We're not talking about "looking" here -- we're talking about making commercial use of images of things you look at -- images made not by you, but by a third party.
Just because it is an unauthorized commercial use, that doesn't mean it cannot be a fair use. This was settled with the Pretty Woman case, where there was a commercial parody that was found to be fair. And it should've been patently obvious, given that movie reviewers act commercially (and can wreck the financial value of a work with a bad review, supported by clips, quotes, and stills used as fair use without permission or compensation), to name but one example.
I was merely pointing out that having some rights in something doesn't confer you with all rights in something. Just because you have a copyright in a photograph, that doesn't mean that Google can't lawfully use it as well, sans permission and payment.
I agree with some degree of copyright protection
Me too. I fully support all copyright laws which serve the public interest to the fullest possible extent. But I oppose (bitterly, if necessary) all copyright laws which fail to maximally serve the public interest. Fairness, control by authors over their works, compensation for authors -- these are all totally unimportant to me. I'm only about maximizing the public interest. If this involves helping authors, then great, and if not as much as I could, then great, and if not at all, then that's great too.
That's OK. We don't need movies like Star Wars or Avatar in the future, Youtube production values should be enough for anyone.
Copyright is meant to promote quantity, not quality. The government isn't even competent to judge quality, and even if they were, who would want them to? That's why copyright leaves things up to the market. Works of the same type might get the same amount of protection, but the amount of money that they are worth is up to the audience. The copyright protection for Avatar is the same as for Gigli, but one of these works is worth more than the other.
Copyright policy has no qualms with Youtube production values. Hell, YouTube supports color, supports sounds, and supports a 30fps framerate (AFAIK) -- that's better than the first several decades of the professional movie industry right there!
I don't have a problem with a cheap looking movie, so long as it is entertaining or meaningful. Star Wars, which you cite, had a budget of $11 million in 1977, which is $38.5 million in 2009. Phantom Menace had a budget of $115 million in 1999, which is $146.6 million in 2009. Money didn't buy him good writing, directing, or acting, and that's what's important. Not computer-generated catastrophes. I could go for cheaper films than the stupidly expensive blockbusters we've got these days. If they're better.
Photographers do deserve to be compensated if their copyrighted material has been published online
Why?
I just published some of your (presumably) copyrighted material online. But I didn't ask you, I didn't compensate you, and I'm not planning to in the future. Is there something different about photography as compared to text, for this purpose? I don't think so.
I'm not against photographers having rights in their work, but you haven't even so much as given a reason why, much less a good reason. And even should you do that, you then need to think about whether it would apply to any publication online, or whether there might be exceptions that would better promote the reasons you came up with than granting compensation would.
First off, a distinction is to be made (after I say IANAL) -- Fair use is not legally a "right" -- it is an "affirmative defense" to a charge of infringement. As such, it does not come into play until after a verdict if infringement has been rendered. i.e., you have already been judged guilty.
Well, it's clear that you've looked into this a little bit, but perhaps not enough.
Fair use isn't a right. Nor is it actually an affirmative defense, although that's procedurally how it is treated. This isn't surprising; copyright doesn't really grant rights to affirmatively do anything. That's not how it works for anyone.
Fair use is an exception to copyright. Think of a Venn diagram, in which you have a set, a subset, a sub-subset, a sub-sub-subset and so forth.
At the top is free speech, a guaranteed right. Copyright applies to a subset of this speech. Copyright itself is riddled with exceptions, which remove copyright from certain aspects or uses of certain works. And sometimes those exceptions have exceptions that bring copyright back into play, and then sometimes those exceptions have yet more exceptions that eliminate the copyright yet again.
An example: You have a right of free speech, which permits you to distribute copies of works that someone else made. If that work is not copyrighted, then that's the end of the analysis: you have a right to distribute copies of it, barring something else that might limit your free speech (e.g. libel laws, if the work is libelous). If the work is copyrighted, then someone else has a right to prohibit you from distributing copies, essentially shutting down your right of free speech with regard to distributing that work. But, if that copy was lawfully made under US copyright law, and if you own that copy, then copyright does not apply to its distribution. This means that as far as distribution goes, for those things that qualify, you're back to merely exercising your free speech rights. Copyright doesn't grant you a right to distribute it, e.g. to sell a used book to a bookstore, it just grants or doesn't grant someone else a right to stop you. But suppose the means by which you want to distribute the copy is by renting it, and the copy is a computer program. Then the exception has an exception to it, and copyright law once again applies, and you can be prohibited from renting that. But suppose further than the computer program is a video game cartridge for a console. Then there's an exception to the exception to the exception, and you can rent that without permission or payment, so long as you own the lawfully made copy.
This is all taken from 17 USC 109, which deals with the First Sale doctrine.
So no, Fair Use isn't a right, but it merely prohibits copyright from interfering with the underlying right of free speech which is a right.
Procedurally, it is treated as a defense, because it is felt to be fairer all around if, instead of plaintiffs having to prove that the complained-of use is not a fair use in order to make their prima facie case, defendants should have to prove that the use is a fair use (if they want to; they're not obliged) in order to defend themselves against a plaintiff who has made out a prima facie case of infringement. After all, if no one claims it's fair, why should the plaintiff have to waste time with it? And if it is claimed to be fair, wouldn't the defendant be in a better position to gather evidence to prove this?
Also, note that you're wrong about in what order things come. In a court case, the plaintiff (or prosecutor) has to first make their prima facie case. For example, suppose you were accused of murder. The murder victim is known to be alive and well. In that case, the prosecutor cannot prove that you murdered the living victim. You, the defendant, win the case, without having to defend yourself or even lift a finger, because the prosecutor didn't get far enough with his side of things. Likewise in copyright infringement suits, fair use simply isn't necessary until it can be shown that the
Well, Universal Studios sued Sony regarding the Betamax on the basis that they were facilitating the copying without distribution by users at home. And the RIAA sued Diamond regarding the RIO mp3 player on the basis that they had made a device that users at home could use to make copies without distribution, and that Diamond had failed to pay fees, or have certain types of DRM involved.
But, Google isn't doing it for personal use, and that's the difference here.
Interestingly, personal use isn't a magic word for copyright issues. I could copy a book for personal use, and have it be fair use if I owned a copy of the book, and not fair use if I didn't; the difference wouldn't be the purpose of my use, but the effect that my making a copy has on the market for the book. (Compare with AHRA, where personal use -- or rather, non-commercial use by a consumer -- does matter)
The question here isn't really whether the search results would be fair or not -- they probably would be. Rather, the issue is that Google has to scan the entire book in order to build the database to search the text of the book. The complete book remains internal to Google, with only fragments (at most) ever revealed to any particular user, and then only as the result of a search. Frankly, this seems like a fair use to me. Having the book's text be searchable doesn't harm the market for the book in any material way. It might harm the market for the book if a searcher finds that it contains the wrong thing, or doesn't contain the right thing, but reviews of books can use quotes to show how a book is bad, thereby harming the market for it, and that's usually a fair use.
Slashdot Mirror
What if you write a book, it is sold in bookstores, but it is not taken seriously, and most copies wind up getting destroyed after a while (whether throwing out unsold copies to free up shelf space, or people read them, then tear pages out to use as kindling, or whatever). I bought a copy, however, and I kept it in good condition. Many years later, the book becomes a huge success, and book collectors become interested in the first printing.
Why shouldn't I be allowed to sell my copy to a collector for a tremendous profit, without having to share it with you?
As an example, a copy of Action Comics #1, a comic book from 1938 with a cover price of 10 cents, and which is still copyrighted, was sold earlier this year for $1.5 million.
If you had your way, we couldn't even have used book stores.
A requirement of fair use for parody is that only the minimum amount required be taken. Well, that means *none* of the video/sound need be taken. The creator of the parody can reproduce all of that themselves. Just because they aren't up to that quality of production is no reason to strip the copyright holder's rights.
Of course, then the parodist might not be able to convey his commentary about the work. His half-assed staging of the scene might be so bad, so unrecognizable, that no one would be able to figure out what the video was about.
And what if we applied your rigorous standards for the amount used elsewhere? The Daily Show routinely shows clips of politicians, news commentators, and other people saying one thing, then contradicting themselves (or being contradicted) elsewhere. Well, technically it isn't absolutely necessary that those clips be run in order to make a point about hypocrisy or stupidity or whatever. Jon Stewart could just quote his target's first statement, and then quote the second statement. No video or audio clips needed. Of course, this would drastically undercut the power of what he's doing. And if you were disinclined to believe him, but would believe video footage, his ability to comment on the news at all and reach his audience might evaporate.
And that needn't be limited to a news comedy show. Straight news programs -- if they're doing their jobs right -- also have good reason to use footage without authorization, in order to expose official wrongdoing or bad behavior.
Frankly, I think you're going way too far. So long as the material isn't used in a totally gratuitous fashion, and there is a real fair use involved, I don't think that the fact that less might have been used is an appropriate artistic choice for a court to impose upon an author, especially when you consider how extreme the penalties for infringement are.
We seem to agree that it's a moot point in this case because they aren't creating parody of Downfall at all.
It doesn't have to be a parody of Downfall, it has to be a parody that requires the use of Downfall. A Downfall video where Hitler rants against Downfall videos, or rails against Downfall videos being removed, would probably be fair uses, in much the same way that making fun of the Walt Disney corporation often involves using copyrighted character designs and scenarios from their films, even though their characters and films aren't themselves the targets of the parody.
There is nothing stopping the people making the videos from creating those scenes themselves...except that they don't want to put forth the effort.
So? Sweat of the brow -- or lack thereof -- isn't relevant for copyright. Weird Al could surely poke fun at songs without having to recycle their music, merely adding new lyrics. After all, it isn't as though an ordinary music reviewer writes his review out in stanzas, for the reader to sing aloud, when he praises or pans something. That he doesn't do as much work as he possibly could isn't important, just as when we grant copyrights, it doesn't matter if the author worked hard or barely lifted a finger. But he wants to use the song against himself. It's an artistic choice, even if it relieves him of the obligation to compose totally new music, and he has a right to do so. Copyright doesn't get in the way, so long as he doesn't take more than he needs to do that, rather than the bare minimum to make fun of the song in any way at all.
Their specific requirements for these videos is to have an infuriated Hitler railing on about something, this doesn't require Downfall at all.
Well, unless it directly involves Downfall, as I mentioned.
I'm sorry, I must have missed it. Which article, and where in the article, were these issues addressed? Sure, the FA's keep calling the videos parodies, but they don't say why they're parodies of the work they use, nor do they distinguish them from satires, given the difference between the two for fair use purposes. Or was it something else you wanted to point out?
Four words just isn't enough, I'm afraid.
So it sounds as though you're going to want to read over 17 USC 512(g), which covers this sort of thing.
Long story short, the idea is that if material is taken down due to a DMCA notification, which service providers (including YouTube, given how that term is defined in the law) obey in order to be protected from lawsuits regarding things other people do with their service, it can be put back up in a way that continues to protect the service provider. But the two opposing parties are made aware of each other so that they can hash the issue out in court, possibly with the court ordering that the material be taken down again.
Here's the relevant subsection:
making a parody where the subtitles are the only original content and everything else is from the copyrighted work is not gonna fly in court.
It doesn't matter, for the purpose of determining fair use, how much additional material was added. Rather, it depends on how much of the underlying work was used, and how important that portion was to the underlying work. Your criterion is often invoked by infringers who legitimately claim that because they added so much to the portion used, their use was fair, and is just as often rejected by the courts, who don't care about that.
In any event, this isn't "the entirety of the video from 'The Downfall.'" The Hitler scene is just one part -- albeit a rather powerful part -- of an entire movie about the last days of the Nazis in Berlin during the war.
Of course, the thing that might trip them up is the ridiculous dividing line that the courts have been drawing between parody and satire. When a use is a parody, it makes fun of the underlying work itself, and therefore must draw at least somewhat from that underlying work, in order to come about. It is essentially commentary that ridicules the work, or is at least itself ridiculous. Imagine, for example, making fun of Mickey Mouse and Disney by having the Sorcerer's Apprentice scene from Fantasia involve Mickey summoning up a destructive horde of copyright attorneys. (We are indeed capable of reproducing by fragmentation; fear us) That could be a parody.
Satires, however, are making a point about society generally, or at least about something other than the underlying work. In that case, it doesn't absolutely need to borrow from an underlying work, and the courts have not been as generous to satire as they have been to parody. For example, there was a case in which someone was making fun of the OJ Simpson trial by using Dr. Seuss characters and artwork. Because the use wasn't commenting on the used material, but just borrowing it for an unrelated purpose (unless OJ was right, and the murderer was the Lorax or something), it wound up not being a fair use.
Now, I think this is a dumb distinction. The main issue should be whether the use is transformative, even if it doesn't 'need' to use the underlying work (although a showing of necessity should count for something, considering other doctrines, such as merger, where it is also relevant), along with the rest of the fair use analysis, in particular, the fourth factor (harm to the market for the underlying work). But that's what we're stuck with at the moment. And since most of the Downfall videos (though not all -- the one where Hitler is upset about how many Downfall videos there are would seem to be okay, ironically) don't make fun of anything that requires the use of Downfall in order to do it, things may not go well.
Now, how long until someone follows up on this, does a bit of research, and has Hitler upset about this particular aspect of Fair Use under US copyright law, citing the statute and caselaw? Perhaps Generals Keitel, Jodl, Krebs, and Burgdorf (the four guys that he has stay in the room) could each stand for one of the four prongs of the analysis?
I can't think how the right to be identified as author could be harmful to public interest.
Why should the public suffer a restriction on speech, or have to utter compulsory speech, barring a very important reason to do so? What's that reason here? It certainly isn't that authors will withhold their works without such a 'right,' as they've never had it here before, and there's plenty of authors (nor are there dramatically more in places that do grant such a 'right').
As I said elsewhere, if there is actual fraud, then we've already got laws to cover that. Beyond that, I see no affirmative reason to do it.
No. That is your and some American forefather's interpretation of why the copyright exists.
Well, that's good company to be in. Of course, it is also the reasoning of the British, when they created what we think of as copyright, even earlier in the 18th century. And it's been the opinion of at least the US courts up to the present day. And, frankly, it's the only reason that is compatible with the idea of a natural right of free speech.
In other countries, the right to be recognized as an Author of a work is already perpetual (as well as untradeable)Plainly wrong. Who says it isn't in the publics interest that creators are recognized perpetually.
Again, you're failing to explain your assertions. In any event, I say it isn't in the public's interest. People naturally have a right of free speech; it applies even to statements which are matters of opinion, or even things which are false. It is not a right that should be interfered with unless there is a very compelling reason to, there is no better alternative to limiting speech that would address the reason, and the restriction accomplishes what it needs to do, without going one bit further. And that's if you accept the idea that speech should be restricted at all. The absolutist position is appealing, and has been seen at even the very highest levels in this country, and perhaps elsewhere.
Here, you want to prohibit people, with the force of law, from speaking freely. What if there is a dispute as to authorship, possibly without any solid proof (e.g. were the plays of Shakespeare written by Shakespeare, or by someone else?) What if you want to reprint a book, but you don't want to attribute or misattribute it to anyone? What if the author doesn't want to be recognized, or wants to credit someone else (e.g. a ghost writer), but you ignore his wishes just as much as you do everyone else's?
I could understand restricting fraud: If I write a book, and I list someone else, someone famous, as the author, this could mislead people into buying it. And if I were famous, I might take a book written by someone else, take credit for it, and thus exploit my advantage unfairly. But we've already got laws against fraud. We don't need more laws to cover the exact same thing. And the victim of fraud is often not the actual author, but the customer who was defrauded.
Further, why should the right be perpetual? The author can not suffer injury once he's dead. But the public, as a whole, will still be around. Their right of free speech will still be suffering from a limitation. Why should this last forever? How does it benefit them? And in a democratic society, which recognizes free speech as one of the most fundamental rights to be protected (and which doesn't recognize copyright as such; that's just a convenience for the public), how could such a restriction be tolerated?
That is your claim
Restrictions on speech always harm the public. They may carry with them some benefit to the public, which outweighs the harm, but I've yet to see such a benefit to the public shown in this case. Further, what benefit could outweigh a perpetual restriction?
Well, they already have them where I live. And they damn well don't want to lose them.
What authors want is irrelevant, save for how the public benefits overall as a result. Think of dairy cows: The cow might want a solid gold cowbell, but the dairy farmer is only going to spend money on the cow's well being if it improves his bottom line. He will not waste money on the cow just for the hell of it, regardless of what the cow wants.
And in any case, if you don't live in the US, I don't care much what your copyright laws are, if you keep them to yourself. Paying even the tiniest iota of attention to foreign copyright laws has seriously harmed US copyright law. The sensible thing for us to do is to withdraw from all of our copyright treaties, unilaterally grant national treatment to foreigners (i.e. nationality will be irrelevant for applying for a US copyrig
While I'm not familiar with their platform, what I think he's trying to say is that information which has been published -- i.e. made available to the public by the author -- could be shared more freely without permission than it is now, while information which remains private would be shared less freely without permission than it is now.
Drawing a distinction based upon the choice of the appropriate person (e.g. the copyright holder of creative works, the person that private records are about, etc.) to make information public, and then only permitting more sharing of that which has willfully been made publicly known, doesn't seem that difficult, or odd of a position to take.
I'm only guessing, of course, but I bet it's a good guess.
Why? Copyrights exist to promote the public interest by encouraging authors to create and publish works that they otherwise would not create and publish, while minimally restricting the public in terms of both the scope of protection and the duration during which the works are protected.
A perpetual right is not only unconstitutional (the Constitution requires that copyrights be granted only for a limited time), but clearly cannot ever promote the public interest precisely because it is perpetual. Further, for nearly all of our history, we've never had rights like that in the US, and even today, the closest we get is to barely have them for a fraction of works (almost nothing qualifies, by design). Yet we still have lots of works being created and published. Pretty clearly, many authors simply don't require such rights as you describe in order to be incentivized to create and publish; they'll do it for less, in which case it would be wasteful to give them more. (Like the $500,000 screwdriver of military spending infamy) I doubt there would be a big explosion in the number of authors creating and publishing works if we did grant them; most of the rest of the world grants those rights (although not perpetually AFAIK), and they don't totally overshadow the US in terms of creative output.
No, moral rights are simply bogus. They harm, rather than benefit, the public; they aren't so desired by authors that authors are willing to actually do or not do anything in order to get them; they aren't even sensible (who cares about these things outside of matters of fraud, which there is already a law for); and they are particularly harmful to free speech (whatever the uses of works that authors might be offended by, I am certain that those uses are more important than the easily hurt feelings that the author has; more speech on public issues is always better than less, and there's nothing wrong with recycling someone else's).
Require authors to register their works if they want copyrights for published works (have, say, a 1 year deadline from the date of publication to the date of filing), to renew those copyrights annually (or perhaps biannually) to keep them, to register transfers of copyright to others in order that the transfer might be effective, and to print identifying information in their works upon publication (e.g. title of work, year of publication, name of author) and more information (i.e. copyright application number, copyright registration number) once that information is issued to the author.
Copyrights traditionally have had registration, renewal, and notice requirements. Patents have registration, renewal, and notice requirements. Trademarks, if registered, have renewal and notice requirements. Real property requires deeds to be filed and records to be maintained with the government. Certain personal property, such as cars and boats, are usually the subject of recordkeeping requirements.
It's not an unusual requirement, it needn't be costly or time-consuming or difficult, and it is traditional. And it solves the problem: if you want to know whether something published is copyrighted in the US, a quick search based on the registration number or other identifying information will tell you. Unpublished, unregistered works would still be a bit tricky, but it would help to limit protections on such works so as to encourage authors to publish or perish, as it were. Unpublished works don't benefit the public, after all, so we don't want to encourage authors to let works molder in such a state. The only reason to even minimally protect them is to let authors finish a work, then shop it around without having to fear someone pirating the manuscript.
Remind me how it benefits the public to protect or even recognize the existence of 'moral rights' at all?
They expire when you stop using them.
surprisingly relevant considering it was made over 170 years ago.
Why wouldn't it be relevant? The most fundamental aspects of copyright really haven't changed since the early 18th century. We've been screwing up the implementation of it for a while, but the basic idea remains sound.
You know another thing that would be nice? Knowing what's copyrighted and what isn't. Under a fixed-length scheme, I can look at the copyright date and know if it's public domain or not. Now, I've got to know when the author died. Basing copyright on a lot of extensions would have a similar problem.
So long as the initial grant of copyright, renewal terms, and transfers required registration with the US Copyright Office and the inclusion of a unique application or registration number in all copies made after those numbers were issued, as well as some other information printed in all copies (e.g. author's name, work's title, year of publication), and copyright holders were required to keep those records up to date if they moved (perhaps on pain of a reduction in the available remedies for infringement), it would not be problematic. Real property owners are required to file information with their local Registry of Deeds to keep master records of ownership up to date. Why should we tolerate sloppy or no bookkeeping for copyrights? It isn't as though artists are somehow incapable of handling simple paperwork -- after all, they live in our society, which is full of such things for everyone (e.g. change of address, voter registration, taxes, property, leases, etc.). Note that patents and registered trademarks require frequent filings to be maintained, and that copyrights traditionally used to as well.
If I were elected queen of my planet (or whatever), I'd decree a copyright of 20 years, no ifs, ands or buts.
Unfortunately, for a lot of things, 20 years is too long. That's why renewals and registration are better: copyrights are only issued upon request, and only for as long as the request is maintained, up to some maximum. It requires a bit more work logistically, but you get a far more efficient system in terms of what's copyrighted and what isn't.
Oh, I don't know. In the world of real property, there used to be something called a fee tail. Basically, this was a form of ownership in which land was owned by A, and all of A's heirs. It could not be sold or otherwise gotten rid of, unless the family line died out (although this could cause massive lawsuits if one branch of the family tree died, and others vied to take over). In practice, it could not be rented or mortgaged, since the tenant would be kicked out as soon as the person they dealt with died. This tended to make the family that owned it impoverished, if they could not directly use it themselves, and tended to cause the land to go to waste, since it could not be moved around in the market so as to be put to the best use.
It was a huge pain in the ass. When the US broke away from England, we more or less abolished it. Thomas Jefferson regarded getting rid of it as one of his main accomplishments in life. Most other places have abolished it since.
Long copyright terms have a similar effect. After all, when copyright terms are short, and expire, no one is removing the fact of authorship from the authors. No one is prohibiting the authors from continuing to create works that follow up on their previous works. All that is happening is that the field is being opened up for competition on their back catalog. More people get to enjoy the work, as it becomes available at a lower price (or free). Translations become available, if they were not before (or more, at least), further expanding the reach of the work. Some authors may make derivative works based on the work; these works do not diminish the original in any way (Do the ruby slippers in the movie version of The Wizard of Oz make it impossible to enjoy the book, which has silver slippers, instead? Of course not!) and are not required reading. If they're good, then good. If they're bad, then ignore them. In some instances, they may turn out to be better than the originals on which they are based. (Wouldn't be hard in the case of Star Wars prequels)
Well, if you use very short terms of, say 1-2 years, but more of them (perhaps a maximum length of 20 years), you increase the number of opportunities for an author who has sought copyright (indicating that they want it) to fail to renew the copyright (indicating that they no longer care), thus getting the work into the public domain that much sooner. Since the cost and effort to renew is minimal (a couple of blanks, a couple of checkboxes, send it in over the net if possible, by mail otherwise; the fee could be as low as $1 for all I care, so long as it isn't free) it's no hassle for the author.
Fair use says you can quote excerpts from textual work, not the entire work.
No, it doesn't. Fair use says that if a use is fair, it is not infringing. In order to help determine whether a use is fair, several different factors are considered. One of them is the amount and substantiality of the portion of the work used. Thus, the more you use, or the more important parts you use, the less likely that the use is fair. However, it is entirely possible to use all of a work (necessarily including all of the important parts of the work), and still have the use be fair, just as it is entirely possible to use only small excerpts from a textual work, and have that use be unfair. The amount and substantiality factor is only one factor, and not the most important factor, in determining fair use.
See for example, Sony v. Universal, in which entire works may have been copied, but the use was considered fair, or Harper & Row v. Nation Enterprises, in which 300-400 words were taken from a book of over 450 pages was found unfair.
There are no bright line rules in fair use. Each case has to be considered on its own merits.
Extending this to pictures, it should be ok to publish a small portion of the picture, but not the entire picture.
Well, that's not really a reasonable way to look at the issue. Here's what the court said in Kelly:
The Kelly court found in favor of the search engine that made thumbnails.
The effects of this right would be destabilising the current system without proposing anything to replace it.
Well, it does propose something to replace it. It's of less immediate economic value to the copyright holders, but it would be people sharing works alongside whatever authors and their publishers are doing (some people would buy copies rather than get free ones, for various reasons; look at how many public domain books there are in any decent bookstore).
If you changed this to require compulsory licensing for copyrighted material at a fair and nondiscriminatory rate then I'd agree.
Hm. Do you think that authors should get a cut whenever you lend, rent, or sell a used book? If you quote a line from Star Wars when you're hanging out with your friends, should you be required to put a few cents in the collection jar for authors, or face civil or criminal penalties?
Merely because it involves a creative work, or even money changing hands in conjunction with that work, that does not mean that copyright holders are entitled to a cut. Copyrights only make sense when they are as great an incentive as possible to authors to create and publish works that they otherwise would not, where the restrictions on the public are as minimal as possible in scope and duration, all in order to provide the greatest public benefit at the least public cost.
So long as the public would be better off, accounting for both the increase in freedom as to being able to engage in otherwise infringing behavior, and the possible decrease in the number of works created and published, such a change would be worth implementing.
Plus, legalizing file sharing -- if kept strictly non commercial, meaning no money changing hands, no advertising on sites engaged in sharing or anything related to it (e.g. trackers), no file sharing ratios of any sort, no donations or tip jars, etc. -- would bring the law into line with what are apparently our social norms of behavior. The law should generally reflect these, lest laws be seen as oppressive or unjust, not worth following or respecting. Bad laws engender disrespect not only for themselves, but for good laws as well. See the example of Prohibition in the US, where most people agreed at the outset that it would be good for society to ban alcohol, but the law was widely flouted, giving rise to massive amounts of official corruption, organized crime, violence, murder, etc. Sometimes laws that go against social norms are justified, e.g. the government breaking down segregation in the US against the wishes of much of the white majority in the South, but only if the issue is of pressing importance. I don't think that banning non-commercial file sharing by natural persons is more like desegregation than it is like Prohibition. Your opinion may differ.
The point though, is that money isn't everything.
Have you ever seen Dogville? Good movie, and beyond the cast and crew, it required little other than a room.
And Shakespeare did most of his best stuff in an open-air theater, with no sets, no stage lighting, nothing much for sound (maybe some music), little in the way of props, decent (but not period) costumes, and so few actors that they had to double up (i.e. some actors had to play more than one part during the same play). And so, at the first performance of Hamlet, on a sunny afternoon, the audience would see a man carrying a lantern, squinting, and saying, to someone plainly visible on the other side of the stage "Who's there? It's midnight," and understand that even though it is a sunny day, it is a dark, dark night. The ghost appears shortly thereafter, and is creepy, even in the sunshine at 2pm. (Dramatic conventions are also where stereotypical ninja outfits come from: they're really Japanese stagehand outfits, because it's a hell of a surprise when a stagehand that you're supposed to ignore suddenly attacks one of the actors because they were actually a ninja)
Good writing, directing, and acting are what's important. The rest is a crutch for people who don't have good imaginations. It can be a fun crutch, but it isn't the absolutely vital part. Star Wars can be done as a stage play. In fact, it has been. One version apparently had 10 actors (re: doubling up, Chewbacca and Darth Vader were played by the same actor) and a special effects budget of $100.
Flying everyone to Tunisia might add verisimilitude, but it isn't necessary.
We're not talking about "looking" here -- we're talking about making commercial use of images of things you look at -- images made not by you, but by a third party.
Just because it is an unauthorized commercial use, that doesn't mean it cannot be a fair use. This was settled with the Pretty Woman case, where there was a commercial parody that was found to be fair. And it should've been patently obvious, given that movie reviewers act commercially (and can wreck the financial value of a work with a bad review, supported by clips, quotes, and stills used as fair use without permission or compensation), to name but one example.
I was merely pointing out that having some rights in something doesn't confer you with all rights in something. Just because you have a copyright in a photograph, that doesn't mean that Google can't lawfully use it as well, sans permission and payment.
I agree with some degree of copyright protection
Me too. I fully support all copyright laws which serve the public interest to the fullest possible extent. But I oppose (bitterly, if necessary) all copyright laws which fail to maximally serve the public interest. Fairness, control by authors over their works, compensation for authors -- these are all totally unimportant to me. I'm only about maximizing the public interest. If this involves helping authors, then great, and if not as much as I could, then great, and if not at all, then that's great too.
That's OK. We don't need movies like Star Wars or Avatar in the future, Youtube production values should be enough for anyone.
Copyright is meant to promote quantity, not quality. The government isn't even competent to judge quality, and even if they were, who would want them to? That's why copyright leaves things up to the market. Works of the same type might get the same amount of protection, but the amount of money that they are worth is up to the audience. The copyright protection for Avatar is the same as for Gigli, but one of these works is worth more than the other.
Copyright policy has no qualms with Youtube production values. Hell, YouTube supports color, supports sounds, and supports a 30fps framerate (AFAIK) -- that's better than the first several decades of the professional movie industry right there!
I don't have a problem with a cheap looking movie, so long as it is entertaining or meaningful. Star Wars, which you cite, had a budget of $11 million in 1977, which is $38.5 million in 2009. Phantom Menace had a budget of $115 million in 1999, which is $146.6 million in 2009. Money didn't buy him good writing, directing, or acting, and that's what's important. Not computer-generated catastrophes. I could go for cheaper films than the stupidly expensive blockbusters we've got these days. If they're better.
Photographers do deserve to be compensated if their copyrighted material has been published online
Why?
I just published some of your (presumably) copyrighted material online. But I didn't ask you, I didn't compensate you, and I'm not planning to in the future. Is there something different about photography as compared to text, for this purpose? I don't think so.
I'm not against photographers having rights in their work, but you haven't even so much as given a reason why, much less a good reason. And even should you do that, you then need to think about whether it would apply to any publication online, or whether there might be exceptions that would better promote the reasons you came up with than granting compensation would.
First off, a distinction is to be made (after I say IANAL) -- Fair use is not legally a "right" -- it is an "affirmative defense" to a charge of infringement. As such, it does not come into play until after a verdict if infringement has been rendered. i.e., you have already been judged guilty.
Well, it's clear that you've looked into this a little bit, but perhaps not enough.
Fair use isn't a right. Nor is it actually an affirmative defense, although that's procedurally how it is treated. This isn't surprising; copyright doesn't really grant rights to affirmatively do anything. That's not how it works for anyone.
Fair use is an exception to copyright. Think of a Venn diagram, in which you have a set, a subset, a sub-subset, a sub-sub-subset and so forth.
At the top is free speech, a guaranteed right. Copyright applies to a subset of this speech. Copyright itself is riddled with exceptions, which remove copyright from certain aspects or uses of certain works. And sometimes those exceptions have exceptions that bring copyright back into play, and then sometimes those exceptions have yet more exceptions that eliminate the copyright yet again.
An example: You have a right of free speech, which permits you to distribute copies of works that someone else made. If that work is not copyrighted, then that's the end of the analysis: you have a right to distribute copies of it, barring something else that might limit your free speech (e.g. libel laws, if the work is libelous). If the work is copyrighted, then someone else has a right to prohibit you from distributing copies, essentially shutting down your right of free speech with regard to distributing that work. But, if that copy was lawfully made under US copyright law, and if you own that copy, then copyright does not apply to its distribution. This means that as far as distribution goes, for those things that qualify, you're back to merely exercising your free speech rights. Copyright doesn't grant you a right to distribute it, e.g. to sell a used book to a bookstore, it just grants or doesn't grant someone else a right to stop you. But suppose the means by which you want to distribute the copy is by renting it, and the copy is a computer program. Then the exception has an exception to it, and copyright law once again applies, and you can be prohibited from renting that. But suppose further than the computer program is a video game cartridge for a console. Then there's an exception to the exception to the exception, and you can rent that without permission or payment, so long as you own the lawfully made copy.
This is all taken from 17 USC 109, which deals with the First Sale doctrine.
So no, Fair Use isn't a right, but it merely prohibits copyright from interfering with the underlying right of free speech which is a right.
Procedurally, it is treated as a defense, because it is felt to be fairer all around if, instead of plaintiffs having to prove that the complained-of use is not a fair use in order to make their prima facie case, defendants should have to prove that the use is a fair use (if they want to; they're not obliged) in order to defend themselves against a plaintiff who has made out a prima facie case of infringement. After all, if no one claims it's fair, why should the plaintiff have to waste time with it? And if it is claimed to be fair, wouldn't the defendant be in a better position to gather evidence to prove this?
Also, note that you're wrong about in what order things come. In a court case, the plaintiff (or prosecutor) has to first make their prima facie case. For example, suppose you were accused of murder. The murder victim is known to be alive and well. In that case, the prosecutor cannot prove that you murdered the living victim. You, the defendant, win the case, without having to defend yourself or even lift a finger, because the prosecutor didn't get far enough with his side of things. Likewise in copyright infringement suits, fair use simply isn't necessary until it can be shown that the
Well, Universal Studios sued Sony regarding the Betamax on the basis that they were facilitating the copying without distribution by users at home. And the RIAA sued Diamond regarding the RIO mp3 player on the basis that they had made a device that users at home could use to make copies without distribution, and that Diamond had failed to pay fees, or have certain types of DRM involved.
But, Google isn't doing it for personal use, and that's the difference here.
Interestingly, personal use isn't a magic word for copyright issues. I could copy a book for personal use, and have it be fair use if I owned a copy of the book, and not fair use if I didn't; the difference wouldn't be the purpose of my use, but the effect that my making a copy has on the market for the book. (Compare with AHRA, where personal use -- or rather, non-commercial use by a consumer -- does matter)
The question here isn't really whether the search results would be fair or not -- they probably would be. Rather, the issue is that Google has to scan the entire book in order to build the database to search the text of the book. The complete book remains internal to Google, with only fragments (at most) ever revealed to any particular user, and then only as the result of a search. Frankly, this seems like a fair use to me. Having the book's text be searchable doesn't harm the market for the book in any material way. It might harm the market for the book if a searcher finds that it contains the wrong thing, or doesn't contain the right thing, but reviews of books can use quotes to show how a book is bad, thereby harming the market for it, and that's usually a fair use.