Actually, the effect of the right disappears while the act is happening.
No, if Alice has a copyright, and Bob infringes on it, Alice still has the right to license the copyright to Carol throughout the duration of Bob's infringement. Not one iota of the right 'disappears.'
Compare this with when the copyright terminates, then the copyright disappears as a matter of law, and Alice does indeed lose the right to license to Carol. Not that Carol minds; once the copyright has terminated, the work is in the public domain, and she doesn't have to get a license from anyone to do as she likes with the work.
SO when you take a copyrighted work and distributed it without the copyright owners consent, the legal right to exclusively control the copying and distribution of that work is still in tact and functioning? Nothing has been taken away?
You mean like when I buy a book, and then without the consent of the copyright holder, I sell the used book to someone else, as the law permits me to do per 17 USC 109? Just because the copyright holder doesn't consent to something, that doesn't make it illegal.
And even in the case where the distribution is infringing, yes, the right is intact. The right has not been taken away. The right has, however, been infringed upon.
Read that carefully, exclusively is what the law says and it does not mean more people then the copyright owners.
Actually, when copyright law talks of an exclusive right, it is a term of art. An exclusive right is a right to exclude others. Like if you own a piece of land, you have an exclusive right to it, which means you can tell other people not to trespass. If someone does trespass, this doesn't mean you don't own the land, or that the land has been taken away from you. It means that now you have to enforce your right by, e.g. calling the police to kick the trespasser out, going to court and suing for trespass, etc.
If the right were taken away, then the copyright holder could not go to court to enforce it; since it wouldn't be his right anymore, and pretty much the first thing you have to prove in order to get to court in a copyright suit is that there is a registered copyright, and you have the copyright.
it is a 'taking' in the sense of limiting the 'owner' of the 'property' (in this case the distribution rights to a file) from doing what the law says they are allowed to do
Well, no. Nothing has been taken away from the copyright holder, and the holder still has the legal right to exclude others from distributing the sound recording. Because the infringer is ignoring the exclusion, the holder will have to go to court to enforce his right. If the infringer ignores the court, the court will use the power of United States law enforcement officials to back up the right of the copyright holder, e.g. having the infringer's property seized and sold at auction to cover damage awards, having the infringer jailed for violating a court order, etc.
This is what the law grants: a right to exclude others, and a means of backing that up if someone ignores the exclusion. No degree of infringement can ever take that away. No infringer can prevent a copyright holder from going to court. No infringer can prevent a copyright holder from deciding who may and may not use the work in ways that are covered under copyright.
What you seem to be imagining is some sort of inviolable right that needs no remedy because things will never get that far. But that's simply impossible.
and as such can create a harm, much like stealing an iPhone.
Just because something causes harm, that doesn't make it stealing, or anything akin to it. Arson isn't stealing, but if I burn your house down, it clearly causes you harm. Rather than try to cram the offense into the realm of stealing, where it obviously doesn't belong, we have a separate law just for arson. Likewise, copyright infringement is its own thing, and is not ever treated as a kind of stealing or theft or whatnot.
Note also that merely causing harm doesn't make something illegal, either. If you write a non-fiction book which is a best seller, and I publish an article that shows that the book is completely wrong, and as a direct result of my article, no one ever buys your book again, I've done you tremendous harm, but I've also acted completely legally.
It's a law (perhaps a stupid one, but that's a matter of opinion). If you disagree with how the law is either written or enforced you have certain options. Including breaking the law, but that's what you're doing.
While I agree that laws should be respected, I also think that laws should be worthy of our respect. An unworthy law not only engenders disrespect for itself, it also encourages disrespect for other laws, and general lawlessness.
Also, why are you saying that I am breaking the law? Perhaps you have me confused with another poster?
No, a copyright is the exclusive right. If Alice took the right from Bob, it would mean that Alice could use the law to prohibit Bob from doing various things with the work. It is obvious, though, that if Alice unlawfully makes a copy of a sound recording Bob has the copyright to, that Bob can still do as he pleases with the sound recording, license it to others, etc.
So the right isn't stolen. Rather, the right is infringed upon, rather like if Alice trespassed onto Bob's land (which violates Bob's right to exclude others, but doesn't impact ownership), or if the government unconstitutionally censored Alice.
It is hard to imagine a way in which a copyright could be stolen. I suppose it might be possible via fraud, but in normal everyday life it just doesn't happen. Copyrights are infringed upon a great deal, but it just isn't the same.
The desire for accuracy when describing these issues is probably why the law itself refers to it as infringement, and not as theft, and why attempts to use anti-larceny statutes against copyright infringers have fallen flat at the highest levels.
There is no such thing as implied work for hire, it must be expressly written in the contract, if its not clearly written that it is work for hire...its not.
No. In fact, it often won't matter whether a contract asserts that a work is a work made for hire.
A work made for hire is defined in the Copyright Act at 17 USC 101 as:
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
Also note section 201(b), which relies on the above definition:
(b) Works Made for Hire.-- In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
Thus, any work done by an employee within the scope of his employment is a work made for hire where the employer is the author unless there is an express agreement in a written instrument, signed by both parties, to the contrary. The courts will look at a large number of factors to determine whether or not there is an employment relationship between the parties. The CCNV case runs through a bunch of them.
Or, where the work is not done by an employee, it is only a work made for hire if it falls into one of the specific, narrow categories of work listed above (e.g. a translation, an atlas, etc.) and there is an express agreement in a written instrument, signed by both parties, saying that it is a work made for hire.
Anything that doesn't fall into one of those two categories is not a work made for hire, regardless of what the parties might think or might have in a written contract. Regular copyright transfer contract provisions may be needed instead.
But there might exist an implicit contract between the owners of the park and the caretakers that they retain a usage right to it.
Road usage is the clear cut case, here you will loose in court if you close off a road that have been open to the public. Ownership or not, particularly if you bought the road as a part of a deal after public usage was an established tradition. Implicit contracts does need to be honored.
I think you're talking about an easement. But I am not so optimistic.
The city could grant the public a recreational easement and then sell the land, but the buyer would be stuck having to keep the land as a public park, and I doubt many people would want to buy the land under that condition. To acquire the recreational easement by prescription would likely fail since the city simply permits people to use the park as a park, so no prescription would arise. (I.e. if someone gives you something voluntarily, you can't construe that as taking it from them without their consent) And anyway, the requirements to gain an easement by prescription are basically the same as to get the land by adverse possession; the difference is just in what you're getting (a right to use someone else's land in some way, rather than all rights in the land).
As for looking at this in contractual terms, it's not. The city has granted the public a license to use the land as a park for all that time. The public didn't have to do anything to get that permission, and there's nothing keeping the city from revoking the permission. It's like, if you let your friend borrow your car whenever he asks, you're not obligated to continue doing so; you can refuse the next time he asks, and he can't legally force you to lend it to him. Cf. if your friend paid you money to use your car on demand; then you'd have a contract.
As for roads, governments can close public roads. People who own property abutting the road might have a right to prevent that, or to at least require some sort of substitute, but the general public is apt to lack standing. In the area where I live, the government seized a large amount of land in the name of urban renewal, tore down entire blocks, got rid of the roads, and created plazas, superblocks, etc. where once there had been a street grid. Since they compensated the owners of the seized property, it was all quite legal, though a very stupid thing to do.
In games, the problem I see with claims of property rights by users is that eventually the company running the game will want to shut it down, or divert resources elsewhere. Could users go to court and force the company not to do so? That seems pretty scary to me.
As for domain names, that's more to do with people exercising existing trademark law. After all, there is no requirement that ISPs use the main DNS system. What if, one day, everyone decided to use a new system. Rights to old DNS names would surely not carry over unless there were some other right -- basically a trademark -- that was applicable.
So in the case of the residents taking care of the park for years, they would have a legal claim of ownership, at least in some states.
No, I don't think so. They don't appear to be excluding the city from the park, nor do they seem to have ever claimed the park as their own until the very end; they're just donating caretaking services to the city.
Fair Use only exists because Congress codified exceptions in the 1976 Copyright Act to allow people to do certain things without them being a violation of copyright. Congress can revoke such fair use at any time they want since they created such exemptions in the first place.
No, the courts created the fair use doctrine back in the 19th century. Congress came along and codified their particular version of it, but the judicially created doctrine is based on the Copyright Clause and the First Amendment and would not be so easy to get rid of.
I don't think anyone could've claimed so much as niche fame for this mark with a straight face. But with the current requirement in the law for national fame as a prerequisite for dilution -- "a mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner" -- there's absolutely no chance, IMO.
That's true. Jefferson's 1813 letter to Isaac McPherson concerned itself with inventions and patents, which had been an area of special interest to Jefferson as he was 1) an inventor; 2) Secretary of State during a period where he had responsibility for reviewing patent applications and issuing patents; 3) opposed to monopolies as a general rule.
However, it is widely recognized that Jefferson's argument, which is made at a very high level, is perfectly applicable to copyrights. After all, copyrights and patents are more closely related to one another than to, say, trademarks, or anything else, and at that high of a level, the underlying logic is basically the same.
Well, it's been a long week and it is an easy mistake to make when you've got a lot on your mind, as I'm sure was the case. It is easy to armchair lawyer.
(Besides, we do know that they read the statute carefully at other times during the week, e.g. when defendant made its curious argument as to the mens rea for the different levels of infringement. I was really astonished that the judge seemed willing to go for that at all, though once plaintiff rebutted, it didn't work.)
Lionel Hutz: And so, ladies and gentleman of the jury I rest my case. Judge: Hmmm. Mr. Hutz, do you know that you're not wearing any pants? Hutz: DAAAA!! I move for a bad court thingy. Judge: You mean a mistrial? Hutz: Right!! That's why you're the judge and I'm the law-talking guy. Judge: You mean the lawyer? Hutz: Right.
I am not a litigator, so I really never go to court. It being a novelty to me, I had a fun time watching the trial this week, and seeing how an infringement trial goes outside of what I've read in books. However, I noticed what I thought was a significant mistake in the jury instructions as the judge and the two sides were working them out today. I predicted that this could cause the jury to err in a particular way, and looking at the award, I think it may have actually happened.
The plaintiff suggested that the jury should award damages based on the number of infringements. The judge felt that this was acceptable, and the defense did not counter with an alternative. When the instructions were finally given to the jury, they included language to this effect. The problem with this is that the law -- 17 USC 504(c)(1) -- specifies that statutory damages are awarded per work infringed, not per infringement. That is to say, if you were on trial for distributing one copyrighted sound recording to one million people, that would only count against you one time, not one million times. But if you were on trial for distributing two different sound recordings once each, that would be two counts against you.
I feared that due to the flawed language in the instructions the jury might believe that even if they were to award the minimum of $750 per count (in this case there are 30 counts), they might take notice of the fact that the defendant infringed when he downloaded, and infringed again when he uploaded, and therefore might double their award, thinking that each type of infringement counted separately for computing damages. Or worse, they might multiply their figure more, if they thought he uploaded a lot.
Well, the figure that they came up with after deliberating was $675,000. The minimum award in this case would have been $750 per work times 30 works, or $22,500. Multiply $22,500 by 30, and you get the amount actually awarded. It is possible that the jury meant to award the minimum damages, but due to the incorrect instructions, multiplied to account for multiple acts of uploading that they believed occurred.
Or they might have just felt that 30 times the minimum was a just figure, and they understood the instructions just fine. Not having seen reports (if there are any, or are ever going to be any) from the jurors as to what their logic was when deliberating, I don't know.
But the doubt, it seems to me, could be grounds for a mistrial. This is of course entirely unrelated to the constitutionality issue that has been discussed at length. On both issues, I will be very interested to see what happens. And since an appeal is likely, and any appeal will go to the First Circuit, I will probably get to see that myself as well.
However, it is the law of the land. If I were on a jury to decide a case like this, I would certainly rule against Tenenbaum because there can be no disputing that he violated the law. If I were a judge, I would help enforce that law. I might have to hold my nose, but I would do it. No one is above the law.
I respect your answer, but I don't know that I agree with it.
In 1850, slavery was legal in the United States generally, with the various states free to choose whether or not to legalize it in their own territory. But Congress enacted the Fugitive Slave Law which ordered that all law enforcement officials in all states assist in capturing runaway slaves so that they could be returned to their owners. Anyone who helped a runaway slave was subject to fines and imprisonment. Also, if a slave owner came to the north and filed an affidavit alleging that a particular person was his slave, that alleged slave had to be captured and given over to the slave owner without a trial, which resulted in a number of free people being enslaved by slave owners who made false (and never verified) affidavits. The US Supreme Court found that this law was constitutional.
While this is an extreme example, it is not a hypothetical one; this all really happened, and many people had to face the dilemmas it presented.
My question to you then is, if you magically wound up back in time in 1850, would you break the law of the land in order to help runaway slaves, or would you obey the law and engage in supporting the evil of slavery?
Personally, I would break the law. If I happened to be punished for it, so be it, but I would do everything in my power to avoid such punishment, including fleeing myself if I had to, because the punishment for breaking such a severely unjust law would itself also be unjust.
I do not mean to suggest that copyright is anywhere in the same class as slavery; it is not, at least not currently, and probably not ever. However, it is important to recognize that some issues which are regulated by laws have moral dimensions, and some do not. For example, homicide has a moral aspect to it (murder is wrong), while zoning regulations do not (building a house with too many bathrooms does not make the house, architect, builder, or owner, evil). While copyright is pretty clearly an amoral law, which is merely concerned with social utility, in those cases where morality is a factor, I think that it is not enough to merely say that the law must be obeyed because it is the law. We must also examine such laws in the light of morality, and see if the law is right or wrong, and only obey the former.
Does this mean I would excuse Nixon or Bush for their crimes? Not really, as they broke laws which were not themselves wrong, so that they could engage in wrongful behavior.
Sure, examining laws for morality, and then which way that morality leans, means that things are no longer as clear-cut as whether it is legal or not, but no one ever said that a righteous life would be easy.
I said that you can force the government, if they choose to take your property, to pay a fair amount, which may be more than they initially offer. And it is done through the courts, and not through armed conflict.
No, you get to argue. If you have property which is taken by the state via eminent domain, you have a right under the federal constitution (and typically the state constitution) to go to court on the issue of what the fair value is. You'll present evidence as to what you think the value is, the state will present evidence as to what they think the value is, and a jury will decide which evidence they think is most credible and make a determination based on what they hear. If the government is determined to take your property, they can, but their determination as to fair value is hardly made at gunpoint.
To be a little more precise, I was saying that in some cases, an artist can exploit the economic value of provenance, regardless of copyright. Even if the works are absolutely identical -- say, two copies of a book, from the same print run -- a copy which has been autographed by the author will often command a higher price than one which has not been. That a particular copy of a work is one which has been 'touched' by the author, as opposed to mass produced from an original, is itself often valuable.
There is certainly something to be said for some copies not being perfect reproductions, such as a photograph of a painting. But that wasn't my point. And even if we had Star Trek replicators, and could zap up limited atom-for-atom identical copies of Picassos, the originals would still certainly be valued most highly. It's not just about art, it's also about artifacts.
To the contrary, copyright is an infringement on free speech. If the right of free speech did not include a right to repeat the words of others, wouldn't the government be able to censor people who recited Shakespeare or played 19th century folk songs? Of course free speech covers such things, and is a right shared by the creator of a given work as well as anyone else. Artificial limits on this right may be tolerable, but they cannot rightfully be imposed. They must be consented to.
Well, I'm interested in getting the most works created and published for the least amount of copyright protection granted. The US traditionally has not had moral rights at all, and the paltry few we've set up due to pernicious interference and pressure from abroad do not apply to academic papers. But we have a thriving creative community, and plenty of publishing scholars.
There has been no appreciable increase in the number of artists, or in the number of works created or published, which can be attributed to the moral rights we've recently set up. There's no reason to believe that granting everyone moral rights would actually incentivize anyone who isn't already incentivized. And if they already are incentivized, giving them one iota of additional incentive would be a dreadful waste which harms the public (since it is at our cost). Indeed, this is why we could probably substantially reduce the scope and duration of copyright, and only see an improvement -- they're over-incentivized as it is.
So long as authors create and publish the most works for the least amount of incentive necessary to get them to do so, I'm happy. I don't care at all whether or not the authors are happy. Their happiness or unhappiness is totally irrelevant, so long as they keep creating and publishing.
So since it will harm the public (all copyright harms the public), and since there is no reason to believe that it will incentivize authors to create and publish when they otherwise would not, which is the only thing that could possibly outweigh the public harm, why should we grant moral rights? I don't think we should. This is apart from my opinion that they're offensive paternalistic bullshit. If they actually worked to serve the public good, I'd hold my nose and support the idea. But they do not. If they did, we would be worried about French culture overwhelming us, rather than the other way around.
I guess you don't really need the RIAA to reach customers after all.
You don't. But it is entirely possible that they may be better at it than a self-publishing musician, what with the RIAA members having gobs of cash, hordes of workers, legions of contacts, and years of experience.
I mean, it's not like the RIAA would do anything as despicable as prevent small start up artists who rebuff their advances from gaining exposure or marketshare by colluding with retail outlets or spreading FUD about small artists illegally remixing.
Well, if they're doing this sort of thing, and you can prove it and have been harmed by it, you should probably see a lawyer; you could have a good case.
No, you could get custom records cut. It was done (probably still is done, from time to time) with a lathe on a blank disc. You record in the studio, and it cuts it directly to a record. If you'll recall, Elvis paid a few bucks to do a couple of these before his career got started. A few of these one-offs wound up on the radio, and there he went. As I recall, this is how they did masters before recording studios switched to tape.
Also you could probably get an order done at a proper record pressing plant, provided that you met their minimum order requirements, if any.
And as someone who grew up in the 70's and 80's, I also remember how big audio cassettes were in those decades, and those were also convenient formats to do at a small scale.
I've yet to see evidence that self publishing has not, at some point, been possible. It's just often unappealing.
The moral rights promote the progress of science through encouraging publication. Of course, people do publish despite losing their moral rights when they choose a publisher who forces them to sign over their copyright,
So you're saying that if we provide moral rights, people will publish. But that people publish anyway. It seems to follow, therefore, that providing moral rights does not actually encourage publication, which is pretty well encouraged so far. Would you like to have another try?
They shouldn't have to sign over their copyright, and by doing so they stifle the progress of science; they turn a work (in progress, like all science is) of the intellect into an "intellectual" property, something that can be owned and others be forced off of.
But you're just saying that the author should own it (and thus be able to force others off, since that's all a copyright is good for), rather than the publisher. I don't see that it makes any difference who owns it, if someone does. Besides, no author has to sign away their copyright. They might want to, they might make a bad deal, they might have no choice but to either do so or self publish, but they still are not obligated to.
University bureaucrats tend to shun any publication outside of the cartel as an "unreliable source".
Shouldn't reliability depend on the researcher who wrote the article, and the peer reviewers, rather than the name on the cover of the periodical? I guess it is time to convince the universities to take a better approach to this.
What's unconscionable is that you believe after I have spent days, months or years working on a piece of music, you think you should have the same rights to it as I do if you simply see it on a page or hear it.
Why? We clearly both have the same natural right of free speech, with which to perform the music, print up copies, distribute them, etc. It doesn't matter whether one of us created the work and one of us didn't; that's why you can play Greensleeves if you want to. Nor does it matter whether it took a lot of work or was a trivial effort. As previously noted, though, no one is going to force you to create a work, or to share it with others; those are your choices. Copyright only comes into play when other people are involved.
You want a copyright, which is ultimately a right to prohibit me from using my free speech with regard to your work. Given that government only legitimately governs with the consent of the governed, and the government administers copyrights, you must either want to forcibly censor me -- which is certainly wrong -- or you want me to consent to your demand for a copyright.
Any righteous person would fight the former, but the latter is agreeable. But since people are self-interested (which isn't a bad thing) you'll have to make it worth the while of everyone who would be bound by the copyright.
for works in the public domain (shakespeare, the bible, mickey mouse, etc...), could someone republish them, in their entirety, only changing the author to "by Anonymous Coward"? is there anything legally wrong with that? I'm hoping someone can enlighten me as I can't even think how to google for that...
You want to google for Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003).
Slashdot Mirror
Actually, the effect of the right disappears while the act is happening.
No, if Alice has a copyright, and Bob infringes on it, Alice still has the right to license the copyright to Carol throughout the duration of Bob's infringement. Not one iota of the right 'disappears.'
Compare this with when the copyright terminates, then the copyright disappears as a matter of law, and Alice does indeed lose the right to license to Carol. Not that Carol minds; once the copyright has terminated, the work is in the public domain, and she doesn't have to get a license from anyone to do as she likes with the work.
SO when you take a copyrighted work and distributed it without the copyright owners consent, the legal right to exclusively control the copying and distribution of that work is still in tact and functioning? Nothing has been taken away?
You mean like when I buy a book, and then without the consent of the copyright holder, I sell the used book to someone else, as the law permits me to do per 17 USC 109? Just because the copyright holder doesn't consent to something, that doesn't make it illegal.
And even in the case where the distribution is infringing, yes, the right is intact. The right has not been taken away. The right has, however, been infringed upon.
Read that carefully, exclusively is what the law says and it does not mean more people then the copyright owners.
Actually, when copyright law talks of an exclusive right, it is a term of art. An exclusive right is a right to exclude others. Like if you own a piece of land, you have an exclusive right to it, which means you can tell other people not to trespass. If someone does trespass, this doesn't mean you don't own the land, or that the land has been taken away from you. It means that now you have to enforce your right by, e.g. calling the police to kick the trespasser out, going to court and suing for trespass, etc.
If the right were taken away, then the copyright holder could not go to court to enforce it; since it wouldn't be his right anymore, and pretty much the first thing you have to prove in order to get to court in a copyright suit is that there is a registered copyright, and you have the copyright.
it is a 'taking' in the sense of limiting the 'owner' of the 'property' (in this case the distribution rights to a file) from doing what the law says they are allowed to do
Well, no. Nothing has been taken away from the copyright holder, and the holder still has the legal right to exclude others from distributing the sound recording. Because the infringer is ignoring the exclusion, the holder will have to go to court to enforce his right. If the infringer ignores the court, the court will use the power of United States law enforcement officials to back up the right of the copyright holder, e.g. having the infringer's property seized and sold at auction to cover damage awards, having the infringer jailed for violating a court order, etc.
This is what the law grants: a right to exclude others, and a means of backing that up if someone ignores the exclusion. No degree of infringement can ever take that away. No infringer can prevent a copyright holder from going to court. No infringer can prevent a copyright holder from deciding who may and may not use the work in ways that are covered under copyright.
What you seem to be imagining is some sort of inviolable right that needs no remedy because things will never get that far. But that's simply impossible.
and as such can create a harm, much like stealing an iPhone.
Just because something causes harm, that doesn't make it stealing, or anything akin to it. Arson isn't stealing, but if I burn your house down, it clearly causes you harm. Rather than try to cram the offense into the realm of stealing, where it obviously doesn't belong, we have a separate law just for arson. Likewise, copyright infringement is its own thing, and is not ever treated as a kind of stealing or theft or whatnot.
Note also that merely causing harm doesn't make something illegal, either. If you write a non-fiction book which is a best seller, and I publish an article that shows that the book is completely wrong, and as a direct result of my article, no one ever buys your book again, I've done you tremendous harm, but I've also acted completely legally.
It's a law (perhaps a stupid one, but that's a matter of opinion). If you disagree with how the law is either written or enforced you have certain options. Including breaking the law, but that's what you're doing.
While I agree that laws should be respected, I also think that laws should be worthy of our respect. An unworthy law not only engenders disrespect for itself, it also encourages disrespect for other laws, and general lawlessness.
Also, why are you saying that I am breaking the law? Perhaps you have me confused with another poster?
No, a copyright is the exclusive right. If Alice took the right from Bob, it would mean that Alice could use the law to prohibit Bob from doing various things with the work. It is obvious, though, that if Alice unlawfully makes a copy of a sound recording Bob has the copyright to, that Bob can still do as he pleases with the sound recording, license it to others, etc.
So the right isn't stolen. Rather, the right is infringed upon, rather like if Alice trespassed onto Bob's land (which violates Bob's right to exclude others, but doesn't impact ownership), or if the government unconstitutionally censored Alice.
It is hard to imagine a way in which a copyright could be stolen. I suppose it might be possible via fraud, but in normal everyday life it just doesn't happen. Copyrights are infringed upon a great deal, but it just isn't the same.
The desire for accuracy when describing these issues is probably why the law itself refers to it as infringement, and not as theft, and why attempts to use anti-larceny statutes against copyright infringers have fallen flat at the highest levels.
There is no such thing as implied work for hire, it must be expressly written in the contract, if its not clearly written that it is work for hire...its not.
No. In fact, it often won't matter whether a contract asserts that a work is a work made for hire.
A work made for hire is defined in the Copyright Act at 17 USC 101 as:
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
Also note section 201(b), which relies on the above definition:
(b) Works Made for Hire.--
In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
Thus, any work done by an employee within the scope of his employment is a work made for hire where the employer is the author unless there is an express agreement in a written instrument, signed by both parties, to the contrary. The courts will look at a large number of factors to determine whether or not there is an employment relationship between the parties. The CCNV case runs through a bunch of them.
Or, where the work is not done by an employee, it is only a work made for hire if it falls into one of the specific, narrow categories of work listed above (e.g. a translation, an atlas, etc.) and there is an express agreement in a written instrument, signed by both parties, saying that it is a work made for hire.
Anything that doesn't fall into one of those two categories is not a work made for hire, regardless of what the parties might think or might have in a written contract. Regular copyright transfer contract provisions may be needed instead.
But there might exist an implicit contract between the owners of the park and the caretakers that they retain a usage right to it.
Road usage is the clear cut case, here you will loose in court if you close off a road that have been open to the public. Ownership or not, particularly if you bought the road as a part of a deal after public usage was an established tradition. Implicit contracts does need to be honored.
I think you're talking about an easement. But I am not so optimistic.
The city could grant the public a recreational easement and then sell the land, but the buyer would be stuck having to keep the land as a public park, and I doubt many people would want to buy the land under that condition. To acquire the recreational easement by prescription would likely fail since the city simply permits people to use the park as a park, so no prescription would arise. (I.e. if someone gives you something voluntarily, you can't construe that as taking it from them without their consent) And anyway, the requirements to gain an easement by prescription are basically the same as to get the land by adverse possession; the difference is just in what you're getting (a right to use someone else's land in some way, rather than all rights in the land).
As for looking at this in contractual terms, it's not. The city has granted the public a license to use the land as a park for all that time. The public didn't have to do anything to get that permission, and there's nothing keeping the city from revoking the permission. It's like, if you let your friend borrow your car whenever he asks, you're not obligated to continue doing so; you can refuse the next time he asks, and he can't legally force you to lend it to him. Cf. if your friend paid you money to use your car on demand; then you'd have a contract.
As for roads, governments can close public roads. People who own property abutting the road might have a right to prevent that, or to at least require some sort of substitute, but the general public is apt to lack standing. In the area where I live, the government seized a large amount of land in the name of urban renewal, tore down entire blocks, got rid of the roads, and created plazas, superblocks, etc. where once there had been a street grid. Since they compensated the owners of the seized property, it was all quite legal, though a very stupid thing to do.
In games, the problem I see with claims of property rights by users is that eventually the company running the game will want to shut it down, or divert resources elsewhere. Could users go to court and force the company not to do so? That seems pretty scary to me.
As for domain names, that's more to do with people exercising existing trademark law. After all, there is no requirement that ISPs use the main DNS system. What if, one day, everyone decided to use a new system. Rights to old DNS names would surely not carry over unless there were some other right -- basically a trademark -- that was applicable.
So in the case of the residents taking care of the park for years, they would have a legal claim of ownership, at least in some states.
No, I don't think so. They don't appear to be excluding the city from the park, nor do they seem to have ever claimed the park as their own until the very end; they're just donating caretaking services to the city.
Fair Use only exists because Congress codified exceptions in the 1976 Copyright Act to allow people to do certain things without them being a violation of copyright. Congress can revoke such fair use at any time they want since they created such exemptions in the first place.
No, the courts created the fair use doctrine back in the 19th century. Congress came along and codified their particular version of it, but the judicially created doctrine is based on the Copyright Clause and the First Amendment and would not be so easy to get rid of.
What?
I don't think anyone could've claimed so much as niche fame for this mark with a straight face. But with the current requirement in the law for national fame as a prerequisite for dilution -- "a mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner" -- there's absolutely no chance, IMO.
That's true. Jefferson's 1813 letter to Isaac McPherson concerned itself with inventions and patents, which had been an area of special interest to Jefferson as he was 1) an inventor; 2) Secretary of State during a period where he had responsibility for reviewing patent applications and issuing patents; 3) opposed to monopolies as a general rule.
However, it is widely recognized that Jefferson's argument, which is made at a very high level, is perfectly applicable to copyrights. After all, copyrights and patents are more closely related to one another than to, say, trademarks, or anything else, and at that high of a level, the underlying logic is basically the same.
Well, it's been a long week and it is an easy mistake to make when you've got a lot on your mind, as I'm sure was the case. It is easy to armchair lawyer.
(Besides, we do know that they read the statute carefully at other times during the week, e.g. when defendant made its curious argument as to the mens rea for the different levels of infringement. I was really astonished that the judge seemed willing to go for that at all, though once plaintiff rebutted, it didn't work.)
Lionel Hutz: And so, ladies and gentleman of the jury I rest my case.
Judge: Hmmm. Mr. Hutz, do you know that you're not wearing any pants?
Hutz: DAAAA!! I move for a bad court thingy.
Judge: You mean a mistrial?
Hutz: Right!! That's why you're the judge and I'm the law-talking guy.
Judge: You mean the lawyer?
Hutz: Right.
I am not a litigator, so I really never go to court. It being a novelty to me, I had a fun time watching the trial this week, and seeing how an infringement trial goes outside of what I've read in books. However, I noticed what I thought was a significant mistake in the jury instructions as the judge and the two sides were working them out today. I predicted that this could cause the jury to err in a particular way, and looking at the award, I think it may have actually happened.
The plaintiff suggested that the jury should award damages based on the number of infringements. The judge felt that this was acceptable, and the defense did not counter with an alternative. When the instructions were finally given to the jury, they included language to this effect. The problem with this is that the law -- 17 USC 504(c)(1) -- specifies that statutory damages are awarded per work infringed, not per infringement. That is to say, if you were on trial for distributing one copyrighted sound recording to one million people, that would only count against you one time, not one million times. But if you were on trial for distributing two different sound recordings once each, that would be two counts against you.
I feared that due to the flawed language in the instructions the jury might believe that even if they were to award the minimum of $750 per count (in this case there are 30 counts), they might take notice of the fact that the defendant infringed when he downloaded, and infringed again when he uploaded, and therefore might double their award, thinking that each type of infringement counted separately for computing damages. Or worse, they might multiply their figure more, if they thought he uploaded a lot.
Well, the figure that they came up with after deliberating was $675,000. The minimum award in this case would have been $750 per work times 30 works, or $22,500. Multiply $22,500 by 30, and you get the amount actually awarded. It is possible that the jury meant to award the minimum damages, but due to the incorrect instructions, multiplied to account for multiple acts of uploading that they believed occurred.
Or they might have just felt that 30 times the minimum was a just figure, and they understood the instructions just fine. Not having seen reports (if there are any, or are ever going to be any) from the jurors as to what their logic was when deliberating, I don't know.
But the doubt, it seems to me, could be grounds for a mistrial. This is of course entirely unrelated to the constitutionality issue that has been discussed at length. On both issues, I will be very interested to see what happens. And since an appeal is likely, and any appeal will go to the First Circuit, I will probably get to see that myself as well.
However, it is the law of the land. If I were on a jury to decide a case like this, I would certainly rule against Tenenbaum because there can be no disputing that he violated the law. If I were a judge, I would help enforce that law. I might have to hold my nose, but I would do it. No one is above the law.
I respect your answer, but I don't know that I agree with it.
In 1850, slavery was legal in the United States generally, with the various states free to choose whether or not to legalize it in their own territory. But Congress enacted the Fugitive Slave Law which ordered that all law enforcement officials in all states assist in capturing runaway slaves so that they could be returned to their owners. Anyone who helped a runaway slave was subject to fines and imprisonment. Also, if a slave owner came to the north and filed an affidavit alleging that a particular person was his slave, that alleged slave had to be captured and given over to the slave owner without a trial, which resulted in a number of free people being enslaved by slave owners who made false (and never verified) affidavits. The US Supreme Court found that this law was constitutional.
While this is an extreme example, it is not a hypothetical one; this all really happened, and many people had to face the dilemmas it presented.
My question to you then is, if you magically wound up back in time in 1850, would you break the law of the land in order to help runaway slaves, or would you obey the law and engage in supporting the evil of slavery?
Personally, I would break the law. If I happened to be punished for it, so be it, but I would do everything in my power to avoid such punishment, including fleeing myself if I had to, because the punishment for breaking such a severely unjust law would itself also be unjust.
I do not mean to suggest that copyright is anywhere in the same class as slavery; it is not, at least not currently, and probably not ever. However, it is important to recognize that some issues which are regulated by laws have moral dimensions, and some do not. For example, homicide has a moral aspect to it (murder is wrong), while zoning regulations do not (building a house with too many bathrooms does not make the house, architect, builder, or owner, evil). While copyright is pretty clearly an amoral law, which is merely concerned with social utility, in those cases where morality is a factor, I think that it is not enough to merely say that the law must be obeyed because it is the law. We must also examine such laws in the light of morality, and see if the law is right or wrong, and only obey the former.
Does this mean I would excuse Nixon or Bush for their crimes? Not really, as they broke laws which were not themselves wrong, so that they could engage in wrongful behavior.
Sure, examining laws for morality, and then which way that morality leans, means that things are no longer as clear-cut as whether it is legal or not, but no one ever said that a righteous life would be easy.
I never said you could keep your property.
I said that you can force the government, if they choose to take your property, to pay a fair amount, which may be more than they initially offer. And it is done through the courts, and not through armed conflict.
No, you get to argue. If you have property which is taken by the state via eminent domain, you have a right under the federal constitution (and typically the state constitution) to go to court on the issue of what the fair value is. You'll present evidence as to what you think the value is, the state will present evidence as to what they think the value is, and a jury will decide which evidence they think is most credible and make a determination based on what they hear. If the government is determined to take your property, they can, but their determination as to fair value is hardly made at gunpoint.
To be a little more precise, I was saying that in some cases, an artist can exploit the economic value of provenance, regardless of copyright. Even if the works are absolutely identical -- say, two copies of a book, from the same print run -- a copy which has been autographed by the author will often command a higher price than one which has not been. That a particular copy of a work is one which has been 'touched' by the author, as opposed to mass produced from an original, is itself often valuable.
There is certainly something to be said for some copies not being perfect reproductions, such as a photograph of a painting. But that wasn't my point. And even if we had Star Trek replicators, and could zap up limited atom-for-atom identical copies of Picassos, the originals would still certainly be valued most highly. It's not just about art, it's also about artifacts.
One of the points of copyrights is to ensure credit.
Not especially, at least in the US.
To the contrary, copyright is an infringement on free speech. If the right of free speech did not include a right to repeat the words of others, wouldn't the government be able to censor people who recited Shakespeare or played 19th century folk songs? Of course free speech covers such things, and is a right shared by the creator of a given work as well as anyone else. Artificial limits on this right may be tolerable, but they cannot rightfully be imposed. They must be consented to.
Well, I'm interested in getting the most works created and published for the least amount of copyright protection granted. The US traditionally has not had moral rights at all, and the paltry few we've set up due to pernicious interference and pressure from abroad do not apply to academic papers. But we have a thriving creative community, and plenty of publishing scholars.
There has been no appreciable increase in the number of artists, or in the number of works created or published, which can be attributed to the moral rights we've recently set up. There's no reason to believe that granting everyone moral rights would actually incentivize anyone who isn't already incentivized. And if they already are incentivized, giving them one iota of additional incentive would be a dreadful waste which harms the public (since it is at our cost). Indeed, this is why we could probably substantially reduce the scope and duration of copyright, and only see an improvement -- they're over-incentivized as it is.
So long as authors create and publish the most works for the least amount of incentive necessary to get them to do so, I'm happy. I don't care at all whether or not the authors are happy. Their happiness or unhappiness is totally irrelevant, so long as they keep creating and publishing.
So since it will harm the public (all copyright harms the public), and since there is no reason to believe that it will incentivize authors to create and publish when they otherwise would not, which is the only thing that could possibly outweigh the public harm, why should we grant moral rights? I don't think we should. This is apart from my opinion that they're offensive paternalistic bullshit. If they actually worked to serve the public good, I'd hold my nose and support the idea. But they do not. If they did, we would be worried about French culture overwhelming us, rather than the other way around.
I guess you don't really need the RIAA to reach customers after all.
You don't. But it is entirely possible that they may be better at it than a self-publishing musician, what with the RIAA members having gobs of cash, hordes of workers, legions of contacts, and years of experience.
I mean, it's not like the RIAA would do anything as despicable as prevent small start up artists who rebuff their advances from gaining exposure or marketshare by colluding with retail outlets or spreading FUD about small artists illegally remixing.
Well, if they're doing this sort of thing, and you can prove it and have been harmed by it, you should probably see a lawyer; you could have a good case.
No, you could get custom records cut. It was done (probably still is done, from time to time) with a lathe on a blank disc. You record in the studio, and it cuts it directly to a record. If you'll recall, Elvis paid a few bucks to do a couple of these before his career got started. A few of these one-offs wound up on the radio, and there he went. As I recall, this is how they did masters before recording studios switched to tape.
Also you could probably get an order done at a proper record pressing plant, provided that you met their minimum order requirements, if any.
And as someone who grew up in the 70's and 80's, I also remember how big audio cassettes were in those decades, and those were also convenient formats to do at a small scale.
I've yet to see evidence that self publishing has not, at some point, been possible. It's just often unappealing.
The moral rights promote the progress of science through encouraging publication. Of course, people do publish despite losing their moral rights when they choose a publisher who forces them to sign over their copyright,
So you're saying that if we provide moral rights, people will publish. But that people publish anyway. It seems to follow, therefore, that providing moral rights does not actually encourage publication, which is pretty well encouraged so far. Would you like to have another try?
They shouldn't have to sign over their copyright, and by doing so they stifle the progress of science; they turn a work (in progress, like all science is) of the intellect into an "intellectual" property, something that can be owned and others be forced off of.
But you're just saying that the author should own it (and thus be able to force others off, since that's all a copyright is good for), rather than the publisher. I don't see that it makes any difference who owns it, if someone does. Besides, no author has to sign away their copyright. They might want to, they might make a bad deal, they might have no choice but to either do so or self publish, but they still are not obligated to.
In what way? Antitrust?
If it is really a cartel, why not?
University bureaucrats tend to shun any publication outside of the cartel as an "unreliable source".
Shouldn't reliability depend on the researcher who wrote the article, and the peer reviewers, rather than the name on the cover of the periodical? I guess it is time to convince the universities to take a better approach to this.
What's unconscionable is that you believe after I have spent days, months or years working on a piece of music, you think you should have the same rights to it as I do if you simply see it on a page or hear it.
Why? We clearly both have the same natural right of free speech, with which to perform the music, print up copies, distribute them, etc. It doesn't matter whether one of us created the work and one of us didn't; that's why you can play Greensleeves if you want to. Nor does it matter whether it took a lot of work or was a trivial effort. As previously noted, though, no one is going to force you to create a work, or to share it with others; those are your choices. Copyright only comes into play when other people are involved.
You want a copyright, which is ultimately a right to prohibit me from using my free speech with regard to your work. Given that government only legitimately governs with the consent of the governed, and the government administers copyrights, you must either want to forcibly censor me -- which is certainly wrong -- or you want me to consent to your demand for a copyright.
Any righteous person would fight the former, but the latter is agreeable. But since people are self-interested (which isn't a bad thing) you'll have to make it worth the while of everyone who would be bound by the copyright.
for works in the public domain (shakespeare, the bible, mickey mouse, etc...), could someone republish them, in their entirety, only changing the author to "by Anonymous Coward"? is there anything legally wrong with that? I'm hoping someone can enlighten me as I can't even think how to google for that...
You want to google for Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003).