Now, back to topic, we should probably go back to a copyright of "author's life plus 20 years" or something like that.
After all, it is not an unreasonable expectation to want to leave some inheritance for our children...
Perhaps, but it is eminently unreasonably to use such a desire as a justification for long copyright terms.
The vast majority of copyrighted works are without any copyright-related economic value whatsoever. Of the tiny minority of works remaining, the vast majority only have such economic value for a short period of time, following publication in a given medium. For example, a movie makes a lot of money the first weekend it is released in theaters, and generally less money during each week thereafter. Eventually, so little money is being made at the box office that it stops showing in theaters. Then it goes to pay-per-view for a while, home video, cable movie channels, etc. and the cycle repeats; the work is most valuable initially upon release, then becomes less and less valuable over time. Eventually there is no significant demand in any medium. An astoundingly small fraction of works have a lasting economic value, but getting such a work is so rare that it is like winning the lottery. In fact, it's like winning the lottery, and then being concerned with whether the winnings will still be pouring in potentially many decades down the road.
Remember, merely granting or extending a copyright does not mean that the work is valuable. A copyright is a monopoly: it funnels money related to a work toward the holder. If there is no money to be had (because the work is no longer popular), then it funnels a bunch of nothing to the holder.
We would never advocate that in order to provide for widows and orphans, people should invest their money in lottery tickets. But that's precisely what you're suggesting. You're saying that in order to provide for these unfortunates after the passing of an author, we should give them copyrights; copyrights which will predominantly never have had economic value, or where that value was exhausted long before.
If we did this, not only would it harm the public, but it would provide no benefit to the people you're ostensibly trying to help. The only people it would help are the people who have lucked out and who have got a work with lasting economic value, which are rare as hen's teeth. Those people already made a lot of money; why are you trying to give them more? They either don't need it, or wasted their money and don't really deserve more public help in the form of longer copyrights.
If you are honestly interested in helping needy widows and orphans, then support social welfare programs, encourage people to invest wisely (difficult these days, true), to take out life insurance, to not be wasteful, etc. But don't bother with copyright policy; it won't do what you want, and it's not wise to try.
But if one copyrights the fixes or upgrades to a software work, it gives them standing to claim that an equivalent fix or upgrade infringes their copyright.
So?
First, copyrights are not patents. If Alice rewrites an algorithm, and Bob also rewrites the same algorithm, Alice can't use copyrights to sue Bob, because copyrights apply to expressions, but not to actual methods or processes. And where there is only one, or are only a few ways to reasonably express a particular method, there cannot be a copyright, lest it effectively be a copyright on the method. Likewise, copyright only protects creative expression, which requires freedom of choice. This means that the copyright only applies to the literal expression of the software, as opposed to what it does, and only where there are quite a number of ways of doing it, which are genuine creative choices, and not dictated by external factors such as efficiency. Thus, a software work generally has a stronger copyright overall (there's lots of creative choices in writing a big, modern OS) than it does in any specific part (there's not so many creative choices when implementing an efficient sorting algorithm). Further, unlike with patents, copyright requires copying, i.e. the infringer being aware of the supposedly infringed-upon work and copying from it to create his own work. Independent creation of the same work does not give rise to copyright infringement. See e.g. the reverse engineering of the IBM BIOS to create IBM compatible computers, which are what most people use to this day. (Technically, clones were the computers that did use infringing copies of the original BIOS; they were more common before the RE had been done) It helps to use 'clean room' methods to ensure that no one can argue that you copied, but it's not strictly necessary.
Second, even if there was no evidence whatsoever of infringement, and the whole thing was transparently bogus, there would still be standing. Bob could sue Alice with no evidence whatsoever, without an iota of truth in his accusation, and while the case would quickly be dismissed once Alice motions for it, she would have to make an appearance and actually do so. The requirements for standing are far below the requirements to win, because standing just means that you can start the judicial process in motion. I really don't see a problem, or a good solution if it is a problem, especially if you want to protect defendants against possibly dishonest plaintiffs, which doesn't harm honest defendants who actually have a case, but need to use the system to prove it. It's a side effect of an adversarial system, with discovery generally handled by the litigants.
Compilation copyrights are copyrights on collections of otherwise free (i.e. public-domained) works. A bad guy could also get a copyright on a piece of freed software by including it with several other pieces in a distribution and copyrighting that.
That's incorrect. A copyright on a compilation only covers the compilation, not the contents of the compilation. For example, if I created a copyrightable compilation by creatively selecting and arranging public domain fairy tales that I liked, my copyright would only over that particular selection and arrangement; anyone would be free to copy the individual fairy tales (whether from my book, or any other source), republish them individually, or in other compilations, etc. All that's protected is the particular arrangement of the selected things. Not the things, not other arrangements of multiple things. Compilation copyrights are pretty thin, in fact.
Both this and copyrights on derived works based on a public-domain work are copyright recapture.
If I understand your point correctly, you're wrong again. Copyrights on derivative works only cover the original material, not the material derived from the underlying source. For example, if I took the public domain fairy tales, and added illustrations based on the stories, the illustrations would be derivative works. But a copyright on the illustration doesn't cover the underlying story itself, or even the elements of the story as depicted (e.g. if there is a picture of Red Riding Hood, that doesn't prevent other people from drawing her, or copying the public domain elements, such as her having a red hood, directly from my work). Derivatives aren't necessarily thin, but they're weaker than more original works. In fact, if you're concerned about recapture, the real danger is a public domain derivative work which is rendered useless because the underlying original work is still copyrighted.
As long as the cars can be seen in public, it's legal to take pictures of them and make the pictures public.
I wouldn't go that far. If you had, say, a van with a mural painted on it, the mural would likely be copyrightable and copyrighted, and regardless of whether or not it can be seen in public, taking pictures of it could easily be copyright infringement. There may be fair use arguments to be made, but that's a case-by-case issue, and I doubt that all possible circumstances in which a picture of the van, with mural, would be fair.
It's only architectural works where there is a blanket exception that makes it noninfringing to take pictures of them, if they can be viewed from a public place (regardless of where the picture is taken from). That's at 17 USC 120(a). Since cars aren't generally architectural works, it's no help here.
With cars, it's even better. They're public domain.
Not at all. First, obviously, cars are usually personal property; a public domain car would be a car that everyone owned equally and in common, so everyone could drive around in it. I don't know of any cars like that. Second, depending on the car, there may be numerous aspects of it protected by various rights schemes. Software in the car's computer may be copyrighted. Various car parts, including the body, may be patented. The car's manufacturer, marque, etc. may be trademarked. Unless you've got a fairly old car from a defunct manufacturer, you probably couldn't legally make an exact duplicate and start selling them.
Despite what Toyota thinks, a mass-produced automobile is not art. It wasn't created as art. It is not unique. And it wasn't sold as art.
What has that got to do with anything?
Mass production doesn't matter, nor does uniqueness. While some, including myself, might want authorial intention to be relevant, it currently doesn't matter. And what it was sold as doesn't matter.
What it boils down to is that the manufacturer can claim that the parts of the car photographed are copyrighted works, most likely sculptural works (most cars don't seem to come from the manufacturer with pictures painted on them). The counterargument is that copyright excludes the useful portions of sculptural works, and where the useful and non-useful portions are inseparable, the entire work is excluded. This is the utility doctrine. There are numerous tests for determining whether or not various features are separable, most likely because no one has ever managed to come up with a sufficiently good test for people to rally around, and it's all largely based on rationalizing gut instinct.
One noteworthy example of the utility doctrine being used was in Brandir, where the creator of those undulating bike racks tried to get a copyright because he had forgotten to get any kind of patent before the deadline for applying for a patent expired. IIRC, he lost, and anyone can make those racks.
The problem is also that, since Lego has been the only game in town for many years, the average Joe will think that everything that fits Lego blocks *is* made by Lego even if it really is a cheap knockoff. That will dilute the Lego brand itself, which is probably one of the things Lego wanted to avoid by taking these guys to court.
Too bad, so sad. I don't know European trademark law, but in the US, the Lego trademark is not the actual bits of the brick that make it compatible with the other bricks. That's functional anyway, so trademarks would never protect it. You'd want patents instead, and they are no longer available in this case. Using the functional parts of the brick in a dilutive way is perfectly okay. Now, when they use the word LEGO in some fashion, since that's actually a trademark, then we can begin to discuss dilution. Although saying "LEGO-compatible" is a nominative use, so that's also okay, if it's true.
Incidentally, what you were describing is actually customer confusion, which goes to trademark infringement; dilution is when there is no confusion, which is why it's kind of bullshit.
No, facts are not copyrightable. Data may be, if it's not factual, or at least not an independently existing fact, or presented as one. E.g. a database of what I think a good price would be for various models of used cars would be copyrightable. A database of what they actually sold for would not be. Errors in the latter database would be presented as facts, so they would also not be copyrightable. That treatment of false facts usually comes up with historical interpretation: If I write a book aiming to prove that Hitler's brain is alive, and well, and living on the Moon, and I present it as fact, other people are entitled to take me at my word, and use those facts like any others, even if I'm wrong.
If you use part of someone else's work, especially using direct quotes or excerpts, and fail to attribute it to them, then that is plagiarism because you are then presenting it as YOUR work.
If it's set off in quotes, I don't know if it would really be something you were claiming to have written (in which case, why the quote marks?) as opposed to something you just failed to attribute.
In any case, it's a moot point. Plagiarism is not copyright infringement; as far as copyright law is concerned, plagiarize away. Whereas, if you quoted excessively, even if you never failed to mark it as a quotation and properly attribute it, it would not be plagiarism, but it might very well be copyright infringement.
Fair use does not mean you can plagiarize someone's material, which is what the 'author' of this guide did.
Fair use doesn't care about plagiarism one way or the other. And in any event, this author didn't plagiarize; he didn't claim to be the author of Rowling's works, and only an idiot would think he was. He merely undercut his argument at having written a reference guide because it was such a terribly lousy reference guide. He quoted when he didn't need to, and when he did, the lack of citations made it difficult for readers to refer back to the passages in the books being referenced. That's kind of the point of a reference guide.
As you pointed out parodies are more exempt, but they still need to be different from the original at least to a certain extent. I cannot republish the series with the name Harri Pawter and a few extra paragraphs thrown in & claim it is a Parody.
Although the underlying work was not copyrighted, L.H.O.O.Q. would probably be a fair use despite the fact that all that Duchamp did was draw a couple of lines with a pencil, and write the title of the piece on the border. He made a number of copies of it; one hangs in the Pompidou Center, because it's a legitimate and relatively important work of art. You really don't need all that much to get a transformative work.
I absolutely have to disagree with you on this, Ray. Fair use is an equitable doctrine and catch-all, and it could not perform these functions if bright line rules were used. Just imagine if such rules had been adopted before Sony or Diamond, which expanded the types of fair uses known by quite a lot.
Honestly, you should know that if you have specific uses in mind that you'd like to protect, the answer is to enact statutory exceptions which make the use noninfringing without anyone needing to argue fair use, or worse, alter it. We have loads already, why not more? First sale is a good example; it is lawful to resell used books, not because of fair use, but because of the unrelated first sale doctrine and statutory exception.
I, for one, would like to see an exception legalizing any otherwise infringing activity by a natural person not acting commercially. But I wouldn't try to cram that into fair use.
Yeah, the courts have more or less wound up treating the 'such as' clauses as a list of examples, and everything not specifically listed has to fall under the 'or any other form.' Basically, merely being based upon a preexisting work isn't enough; to be a derivative, a work must be a new version or variation at least some protected part of the underlying work. Talking about a work, as a guide does, is seems unlikely to qualify.
That is all very nice, but it is terribly inaccurate. I mean, you could have at least looked at Wikipedia!
Without getting bogged down with details, fair use was not created for the benefit of universities or academics, though they have certainly been beneficiaries. And as law that was essentially a creation of the courts, until quite recently, there wasn't even a statute. Congress didn't even formally take note of the doctrine until the 1976 Act (fair use dates at least to the mid-19th century) when they included a statute (17 USC 107) which I shall reproduce here, in its entirety:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
That is fair use. And notice what it actually said: "[T]he fair use of a copyrighted work... is not an infringement of copyright." The factors are just components in a test to figure out if a test is fair. And it's not a mathematical test, or a bright line test. You needn't succeed with all four factors. In some cases, you can do quite poorly on most, and still succeed. But it depends on the details of "any particular case." Just because it was fair for Alice to do something doesn't mean it will be fair for Bob, if their circumstances are not precisely identical.
There are no numerical limits here, no 10% of this, or 2500 of the other, or any such nonsense. Those are not legal guidelines, those are the creation of laypeople who are flummoxed by the lack of clear guidance from the courts, since with the case-by-case nature of fair use, and the rules and interpretations (not included here; they'd be too much work than I'm prepared to invest in a/. post) there can never be clear guidance. Even canonical examples (parody, time shifting, etc.) are not really inevitably fair. It is a fuzzy, messy matter of equity, and apparently those folks just can't stand that, so they have guessed and unfortunately, you think their guesses are gospel.
This is of course, not true, and I can immediately see instances where what they advise is probably fair (they don't know, of course, no one does) might not be, and where what they say is probably not fair might be.
If you're interested in fair use, if you want to get a grasp on what it is, and where it comes from, and what the rules are, you will have to read a lot of cases regarding it. And then, like the courts, you will be left with a vague sense of it, which defies easy explanation, but at least you can look at a set of circumstances and have a good idea of whether it is fair or not. Because fair use must be able to accommodate any circumstances (the Folsom court could not have even imagined time shifting video tape) it can never be pinned down.
In any case, you might want to stop spreading your misinformation. Those are just guesses by and for people who can't stand fuzzy rules, regardless of the fact that the rules actually are fuzzy, and need to stay that way.
But if you're going to publish a 'reference' book, you have to do so in such a way that it doesn't take on the qualities of a derivative work.
That's usually pretty easy.
If you take long quotes from a book and then insert additional explanatory text around them in the same style, you haven't created a guidebook, you've created a modified version of the source work./i>
I suppose that's possible. But it would be an odd guidebook. You're essentially describing Cliff's Notes with extensive paraphrasing of the story between long verbatim quotes. That's an abridgment, and it would be a derivative.
We can immediately see that the Lexicon in this case isn't like that; it's organized alphabetically, not chronologically. A lot of text about the man-eating Aardvark from book 4, followed by the entry for the magical Albatross from book 1 is hardly putting the original story back together out of snippets and paraphrases.
Please remember that the court did not find the defendant to have infringed on the derivative right; the Lexicon is not a derivative work. Rather, the issue was verbatim copying, and too much of it.
That's true. But not really all that relevant here. The Lexicon was not supplanting the market for the novels. And as the court pointed out, "[n]otwithstanding Rowling's public statements of her intention to publish her own encyclopedia, the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works." There was a concern, however, that the lexicon might harm the market for some of the existing ancillary works it copied from, since it copied so much.
And more generally, there still isn't a right to profit. Remember, fair use only arises where there is prima facie infringement of an actual right, such as the right to reproduce the work in copies. Writing a bad review would not be infringement at all, unless it included quotes or something. Writing a competing series of terrible books would not be infringement either. Only if there is some underlying infringement would a fair use argument (and the fourth, monetary, factor) come into play. In the case of a review, I would be utterly amazed if a court decided that the loss of sales attributable to the review was relevant under the fourth fair use factor. I certainly cannot recall such an absurd outcome ever having happened.
A parody could be fair use, but substantial quotation doesn't belong in parodies.
That depends on the parody; every case is different. Besides, it is well-established that parodies have to copy quite a lot in order to make it clear just what they are parodying. This could involve verbatim copying, though it needn't necessarily, but there will be a lot of copying no matter what.
but surely it can't be a very high percentage of the total work.
First, the issue is how much was copied, not the ratio of copied:new material. Second, it's however much is fair, under the circumstances. Could be a lot, could be a little. Fair use is extremely vague, and deliberately so. Bright line rules don't mesh well with fairness.
thinking that an entire paragraph, in a short story sized work, was too much to justify. That's probably a pretty good rule of thumb.
Meh. I really wouldn't bother with rules of thumb for fair use. It's the overall circumstances of each case standing alone that matters. Any given rule of thumb is as likely to be wrong as it is right, because it does not take into account all of the surrounding issues. Go with your gut instincts instead, looking at the particular circumstances of the actual use in question.
Rowling has an exclusive right to create derivative works
Which is not implicated in this case; the guidebook was not a derivative work. Rather, the author got in trouble for his excessive verbatim copying.
imitating the style used in the series and its associated works
Would also not constitute a derivative work.
Derivatives are defined in the law:
A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".
As you can see, merely being based upon a preexisting work isn't enough. In practice, the derivative has to recast, transform, or adapt the preexisting work. An adaptation, like "Harry Potter: The Opera" would be a derivative. A sequel book, such as "Harry Potter and the Endless Revenue Stream" would be a derivative work. But as the court pointed out, a mere reference guide is not a derivative work, because it does not recast, transform, or adapt the thing to which it is a guide. This was covered pretty well in the Beanie Baby case, and the point was repeated in this case.
Likewise, merely using the style of the Harry Potter books would not constitute a derivative work, because that doesn't recast, transform, or adapt the preexisting books.
undercuts Rowling's ability to profit from the work in a way that a guide book written using a different style would not.
So? Copyright does not include a right to profit. Imagine the absurd results that would occur if it did: A scathing review of the latest book or movie that caused it to be a big flop would constitute copyright infringement! Even if it didn't copy so much as a word. Likewise, a rival author who wrote a series of dreadful books about vampires which drew away the audience for Harry Potter could be accused of infringing on the basis that her (bad) original works were undercutting Rowling's profits, despite a total lack of copying anything.
I was not aware that society's subjective judgment of whether someone has made "enough" money from one's intellectual property was a factor in copyright law. Either there's a copyright infringement or there isn't. Rowling's wealth and success are irrelevant.
Oh, it's not. It's a big factor in copyright policy, however, so perhaps that's where the confusion arises. After all, if copyright is meant to promote the public good by encouraging authors to create and distribute works by means of granting them a limited economic monopoly on the work for a limited period of time, how much money authors make, and how often they make it, and how, etc., becomes pretty important.
The problem is that nearly every description was lifted from the books in a reasonably clear case of plagerism and/or derivitive works.
Plagiarism isn't infringing, or even illegal. Plagiarism is when you copy someone's ideas (which are not protected by copyright) and claim them as your own (which copyright doesn't care about). Copying someone's written work verbatim, even with plenty of attribution, and disclaiming any credit for it would not be plagiarism, but could quite easily be copyright infringement.
As for derivatives, this isn't one, and the court pointed that out. The infringing work doesn't retell or recast the story or adapt it in another medium; it's just a reference guide for the books. It merely copied, and it copied enough, and in such a way, that they lost their fair use argument.
However, this particular lexicon made no effort to add such value over the books themselves.
That might be relevant insofar as one would claim that it's a reference guide, and thus transformative, but generally it is irrelevant. What matters is how much you copy, not how much you add. Besides which, the court rejected the argument that the lexicon had to be a work of literary criticism or some such. A mere guidebook is okay.
In effect, it was merely a reorganization of J.K. Rowling's books into a dry reference. Something for which only the author has a legal right to grant.... The targeted book contained no original thoughts
No, doing that is perfectly fine. This particular author was a little quote-happy is all. Had he been a bit more careful, he would have been well within his rights to write a dry reference. And again, dry references are not inherently infringing. Original thoughts aren't necessary.
Fair use has rules about quote length and attribution
No, it doesn't. Fair use ultimately boils down to 'you can use as much as is fair, given the overall circumstances.'
When you time shift television, you're 'quoting' the entire thing, and stand a good chance of successfully claiming that it's a fair use. In other circumstances, however, excessive copying can sink a fair use argument handily.
There's also no attribution requirement, but if you claim that you were engaged in a particular type of fair use, and that type of use normally involves attribution, failure to include the attribution may harm your argument, and ultimately, your defense.
Fair use necessitates attribution- making it clear when text is being quoted or paraphrased, and when new material is being added by the author.
No it doesn't.
This particular defendant, however, claimed that he had written a reference guide. Since the novels are not reference guides, this would be a transformation of the copyrighted works, and it strengthens a fair use argument to show that the defendant has used the underlying work in a transformative manner. The court noted, however, that due to the lack of attribution, it wasn't actually a very good reference guide. This undercut the claim of it being a transformative work. That, in turn, weakened the fair use argument.
If he had instead written a parody, he would not have had to include attributions, since parodies are a type of transformative work where attributions aren't really expected. Such a parody could easily be a fair use.
Imitating Rowling's style is part of what creates the confusion.
It might further harm the 'it's a reference guide' argument, but copyright does not protect mere writing styles, nor does copyright care about confusion. Copyright chiefly cares about copying. A novel written in Rowling's style that didn't copy anything protectable from her corpus of work, would not infringe her copyrights.
Then, at the very least, it ought to be reformed to reflect this. Personally, I think that you're overstating the matter, and failing to distinguish between copyright as applied to individuals, and copyright as applied to businesses, corporate entities, etc. As I mentioned earlier, I think that we might as well abolish copyright to the degree that it prevents natural persons acting non-commercially (thus, Alice and Bob could share files to their hearts' content) but preserve copyright otherwise (such that Carolco would still have to pay to get the rights to adapt Dave's novel into a film).
But it is bad to have laws on the books that people don't respect; it engenders disrespect for more vital parts of the law. In such cases, the law should reflect social norms, unless there is a very compelling reason to use the law to try to change those norms, e.g. civil rights laws in the 1950's and 60's. Copyright is not that important, so it should be pared down to whatever people's expectations of it are.
No, it's true. They do fall under reproduction, as it is defined in the statutes and case law.* That doesn't make it necessarily infringing, though. There are plenty of exceptions to infringement, but whether any, and if so, which, apply, depends on the circumstances involved.
The exceptions are similar, in a way, to defenses. If you were on trial for murder, once the prosecution proved that you killed the victim, you could argue self-defense. But if the prosecution never managed to prove that you did it in the first place (because the supposed victim is in the gallery, alive and well, for example), then you never need to allege self-defense since the prima facie case can't be made.
Fair use, first sale, etc. only come into play when there has been some manner of infringing action for them to act as an exception to.
RIAA lawyer spotted.
Oh, sure. Let's see: I support abandoning all of the copyright treaties we're in; requiring all published works to be timely registered in order to get a copyright; reducing the length of copyright terms to a few years, and only 15-25 years with multiple renewals, which also must be timely applied for; abolishing criminal penalties; and making it legal for natural persons acting non-commercially to do whatever they like, without risk of infringement. So yes, I am obviously just parroting the RIAA position. Sheesh.
Look, I try to tell people what the law really is, rather than bother with fantasies about what laypeople imagine it to be. I think it's important, because actual copyright law is usually much worse than people think it is. By educating people as to the truth, perhaps we can encourage reform, which is greatly needed.
* Well, there is that one recent case that found a particular act of storing data in memory to not be reproduction, but this is a very unusual outcome (if a good one), and of somewhat limited value due to the circumstances that would need to occur to take advantage of it at the user level.
Not as such, but copyright applies to distribution not consumption.
While that is true, it is nevertheless misleading because of what you've left out. Copyright applies to a whole host of activities involving copyrighted works. Distribution is one, but reproduction is another. So while a downloader isn't liable for the distribution infringements of the uploader, he is liable for his own reproduction of the work, which necessarily occurs when he downloads it.
Despite what many firms may believe they only have the right control distribution.
17 USC 106 disagrees with you:
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Copying things to memory, copying things to other formats, making copies for personal use -- all of those fall under reproduction. In some cases, there may be various statutory exceptions that apply (e.g. sections 107, or 117). But often this will not be the case.
Now if we can actually get a body of case law which deals with that in an unambiguous fashion, then we'll have something
Well, what you've got is a large body of case law that unambigiously says that downloading is infringing, so good luck with that.
There was a copyright argument over a century ago in the US about the copyright of telephone directory data.
That may very well be true; I'd have to check.
But the main case here about copyrighting phone books is Feist v. Rural, which took place in 1991. There, while no one claimed that the data was copyrightrightable, it was claimed that the compilation and arrangement of the data was, which would require competitors to laboriously re-gather all the underlying data if they wished to print their own phone books. That argument was thoroughly rejected by the US Supreme Court, who said that compilations and arrangements are, like anything else, only copyrightable if creative, without any regard to the labor involved in their creation. And since the phone book in that case was not creative -- it was a list of all the listed numbers in the area, along with the corresponding names and addresses, arranged alphabetically by last name -- it could be copied freely. There can be copyrightable phone books (or other compilations of fact) but they require creative decisions in choosing what data to select for inclusion and how to arrange them.
I am by no means whatsoever a copyright abolitionist... the public-good view of copyright requires that the artist be incentivized to the extent necessary for them to create
Well, I think you've got a little bit of a conflict there.
First, remember that there are two public goods: the public benefit of having more works created, and the public benefit of being unrestricted as to those works. Encouraging more creation by granting copyrights reduces the second benefit at the same time as it increases the first. The trick is that they don't scale linearly; even a very short copyright term, with a very small scope of protection can yield a much larger incentivizing benefit than its inherent detriment. But a very long, broad, term could wind up having little additional incentivizing benefit, making it a net detriment, and thus a bad idea.
Second, this being the case, it is possible in some circumstances that granting any copyright would have no incentivizing benefit outweighing the inescapable detriment. Architectural works strike me as being of this type. We didn't grant copyrights for buildings until 1990. Prior to that, we had plenty of buildings being designed and built. Afterwards, nothing changed. Construction is really governed by how much money people have for buildings, how much demand there is, what's tasteful, etc. Copyright does not play a role. Thus, there's no more works being created as a result of the copyright incentive to the point where it outweighs the public detriment that is automatic from granting copyrights. This sort of copyright, then, should be abolished.
Likewise, it is possible, if much less likely, that changing circumstances in the future could result in copyright not being enough of an incentive to ever justify itself. So we ought not to forever forswear abolition. Rather, we ought to leave it on the table as one possible option, should circumstances ever change to make it the best policy. I don't think we're there yet, and we may never be, but let's not arbitrarily get rid of the idea.
Yes, but it was not what we think of as being copyright now.
Copyright in the modern sense first appeared in Britain in 1710, well after Shakespeare. Prior to that, there was a thing called the Stationers' Copyright. Basically it was a form of official censorship (nothing could be legally printed without being approved by the government) and a collusive monopoly amongst the printers to keep prices high and competition low. Each printer would choose a book and register it, and thus have a monopoly on printing it. But the authors didn't have any rights to their own works. Printers could get copyrights on authors' books without permission and without payment. All they needed was a copy of the manuscript or some such.
In fact, in Shakespeare's day, there were plenty of unauthorized editions of his plays (generally acquired by paying actors who had learned the play to dictate it to a scribe, sometimes with hilarious results) but no authorized editions. It wasn't until the First Folio, after Shakespeare died, that a good edition came along.
And it's a fairly good thing, too, that there wasn't meaningful copyright at the time, since all but one of Shakespeare's plays was based on previous works, some historical, some fictional, some quite recent. He wasn't the only person writing about Romeo and Juliet or Hamlet, you know.
Since the Stationers' Copyright died a long time ago, and has no relationship to copyright since then, most people ignore it, and can justifiably say that copyright didn't really come along until 1710.
Slashdot Mirror
Now, back to topic, we should probably go back to a copyright of "author's life plus 20 years" or something like that.
After all, it is not an unreasonable expectation to want to leave some inheritance for our children...
Perhaps, but it is eminently unreasonably to use such a desire as a justification for long copyright terms.
The vast majority of copyrighted works are without any copyright-related economic value whatsoever. Of the tiny minority of works remaining, the vast majority only have such economic value for a short period of time, following publication in a given medium. For example, a movie makes a lot of money the first weekend it is released in theaters, and generally less money during each week thereafter. Eventually, so little money is being made at the box office that it stops showing in theaters. Then it goes to pay-per-view for a while, home video, cable movie channels, etc. and the cycle repeats; the work is most valuable initially upon release, then becomes less and less valuable over time. Eventually there is no significant demand in any medium. An astoundingly small fraction of works have a lasting economic value, but getting such a work is so rare that it is like winning the lottery. In fact, it's like winning the lottery, and then being concerned with whether the winnings will still be pouring in potentially many decades down the road.
Remember, merely granting or extending a copyright does not mean that the work is valuable. A copyright is a monopoly: it funnels money related to a work toward the holder. If there is no money to be had (because the work is no longer popular), then it funnels a bunch of nothing to the holder.
We would never advocate that in order to provide for widows and orphans, people should invest their money in lottery tickets. But that's precisely what you're suggesting. You're saying that in order to provide for these unfortunates after the passing of an author, we should give them copyrights; copyrights which will predominantly never have had economic value, or where that value was exhausted long before.
If we did this, not only would it harm the public, but it would provide no benefit to the people you're ostensibly trying to help. The only people it would help are the people who have lucked out and who have got a work with lasting economic value, which are rare as hen's teeth. Those people already made a lot of money; why are you trying to give them more? They either don't need it, or wasted their money and don't really deserve more public help in the form of longer copyrights.
If you are honestly interested in helping needy widows and orphans, then support social welfare programs, encourage people to invest wisely (difficult these days, true), to take out life insurance, to not be wasteful, etc. But don't bother with copyright policy; it won't do what you want, and it's not wise to try.
Well, in that case, he should remember to ask his lawyer about an 11th Amendment defense as well.
But if one copyrights the fixes or upgrades to a software work, it gives them standing to claim that an equivalent fix or upgrade infringes their copyright.
So?
First, copyrights are not patents. If Alice rewrites an algorithm, and Bob also rewrites the same algorithm, Alice can't use copyrights to sue Bob, because copyrights apply to expressions, but not to actual methods or processes. And where there is only one, or are only a few ways to reasonably express a particular method, there cannot be a copyright, lest it effectively be a copyright on the method. Likewise, copyright only protects creative expression, which requires freedom of choice. This means that the copyright only applies to the literal expression of the software, as opposed to what it does, and only where there are quite a number of ways of doing it, which are genuine creative choices, and not dictated by external factors such as efficiency. Thus, a software work generally has a stronger copyright overall (there's lots of creative choices in writing a big, modern OS) than it does in any specific part (there's not so many creative choices when implementing an efficient sorting algorithm). Further, unlike with patents, copyright requires copying, i.e. the infringer being aware of the supposedly infringed-upon work and copying from it to create his own work. Independent creation of the same work does not give rise to copyright infringement. See e.g. the reverse engineering of the IBM BIOS to create IBM compatible computers, which are what most people use to this day. (Technically, clones were the computers that did use infringing copies of the original BIOS; they were more common before the RE had been done) It helps to use 'clean room' methods to ensure that no one can argue that you copied, but it's not strictly necessary.
Second, even if there was no evidence whatsoever of infringement, and the whole thing was transparently bogus, there would still be standing. Bob could sue Alice with no evidence whatsoever, without an iota of truth in his accusation, and while the case would quickly be dismissed once Alice motions for it, she would have to make an appearance and actually do so. The requirements for standing are far below the requirements to win, because standing just means that you can start the judicial process in motion. I really don't see a problem, or a good solution if it is a problem, especially if you want to protect defendants against possibly dishonest plaintiffs, which doesn't harm honest defendants who actually have a case, but need to use the system to prove it. It's a side effect of an adversarial system, with discovery generally handled by the litigants.
Compilation copyrights are copyrights on collections of otherwise free (i.e. public-domained) works. A bad guy could also get a copyright on a piece of freed software by including it with several other pieces in a distribution and copyrighting that.
That's incorrect. A copyright on a compilation only covers the compilation, not the contents of the compilation. For example, if I created a copyrightable compilation by creatively selecting and arranging public domain fairy tales that I liked, my copyright would only over that particular selection and arrangement; anyone would be free to copy the individual fairy tales (whether from my book, or any other source), republish them individually, or in other compilations, etc. All that's protected is the particular arrangement of the selected things. Not the things, not other arrangements of multiple things. Compilation copyrights are pretty thin, in fact.
Both this and copyrights on derived works based on a public-domain work are copyright recapture.
If I understand your point correctly, you're wrong again. Copyrights on derivative works only cover the original material, not the material derived from the underlying source. For example, if I took the public domain fairy tales, and added illustrations based on the stories, the illustrations would be derivative works. But a copyright on the illustration doesn't cover the underlying story itself, or even the elements of the story as depicted (e.g. if there is a picture of Red Riding Hood, that doesn't prevent other people from drawing her, or copying the public domain elements, such as her having a red hood, directly from my work). Derivatives aren't necessarily thin, but they're weaker than more original works. In fact, if you're concerned about recapture, the real danger is a public domain derivative work which is rendered useless because the underlying original work is still copyrighted.
As long as the cars can be seen in public, it's legal to take pictures of them and make the pictures public.
I wouldn't go that far. If you had, say, a van with a mural painted on it, the mural would likely be copyrightable and copyrighted, and regardless of whether or not it can be seen in public, taking pictures of it could easily be copyright infringement. There may be fair use arguments to be made, but that's a case-by-case issue, and I doubt that all possible circumstances in which a picture of the van, with mural, would be fair.
It's only architectural works where there is a blanket exception that makes it noninfringing to take pictures of them, if they can be viewed from a public place (regardless of where the picture is taken from). That's at 17 USC 120(a). Since cars aren't generally architectural works, it's no help here.
With cars, it's even better. They're public domain.
Not at all. First, obviously, cars are usually personal property; a public domain car would be a car that everyone owned equally and in common, so everyone could drive around in it. I don't know of any cars like that. Second, depending on the car, there may be numerous aspects of it protected by various rights schemes. Software in the car's computer may be copyrighted. Various car parts, including the body, may be patented. The car's manufacturer, marque, etc. may be trademarked. Unless you've got a fairly old car from a defunct manufacturer, you probably couldn't legally make an exact duplicate and start selling them.
Despite what Toyota thinks, a mass-produced automobile is not art. It wasn't created as art. It is not unique. And it wasn't sold as art.
What has that got to do with anything?
Mass production doesn't matter, nor does uniqueness. While some, including myself, might want authorial intention to be relevant, it currently doesn't matter. And what it was sold as doesn't matter.
What it boils down to is that the manufacturer can claim that the parts of the car photographed are copyrighted works, most likely sculptural works (most cars don't seem to come from the manufacturer with pictures painted on them). The counterargument is that copyright excludes the useful portions of sculptural works, and where the useful and non-useful portions are inseparable, the entire work is excluded. This is the utility doctrine. There are numerous tests for determining whether or not various features are separable, most likely because no one has ever managed to come up with a sufficiently good test for people to rally around, and it's all largely based on rationalizing gut instinct.
One noteworthy example of the utility doctrine being used was in Brandir, where the creator of those undulating bike racks tried to get a copyright because he had forgotten to get any kind of patent before the deadline for applying for a patent expired. IIRC, he lost, and anyone can make those racks.
The problem is also that, since Lego has been the only game in town for many years, the average Joe will think that everything that fits Lego blocks *is* made by Lego even if it really is a cheap knockoff. That will dilute the Lego brand itself, which is probably one of the things Lego wanted to avoid by taking these guys to court.
Too bad, so sad. I don't know European trademark law, but in the US, the Lego trademark is not the actual bits of the brick that make it compatible with the other bricks. That's functional anyway, so trademarks would never protect it. You'd want patents instead, and they are no longer available in this case. Using the functional parts of the brick in a dilutive way is perfectly okay. Now, when they use the word LEGO in some fashion, since that's actually a trademark, then we can begin to discuss dilution. Although saying "LEGO-compatible" is a nominative use, so that's also okay, if it's true.
Incidentally, what you were describing is actually customer confusion, which goes to trademark infringement; dilution is when there is no confusion, which is why it's kind of bullshit.
No, facts are not copyrightable. Data may be, if it's not factual, or at least not an independently existing fact, or presented as one. E.g. a database of what I think a good price would be for various models of used cars would be copyrightable. A database of what they actually sold for would not be. Errors in the latter database would be presented as facts, so they would also not be copyrightable. That treatment of false facts usually comes up with historical interpretation: If I write a book aiming to prove that Hitler's brain is alive, and well, and living on the Moon, and I present it as fact, other people are entitled to take me at my word, and use those facts like any others, even if I'm wrong.
If you use part of someone else's work, especially using direct quotes or excerpts, and fail to attribute it to them, then that is plagiarism because you are then presenting it as YOUR work.
If it's set off in quotes, I don't know if it would really be something you were claiming to have written (in which case, why the quote marks?) as opposed to something you just failed to attribute.
In any case, it's a moot point. Plagiarism is not copyright infringement; as far as copyright law is concerned, plagiarize away. Whereas, if you quoted excessively, even if you never failed to mark it as a quotation and properly attribute it, it would not be plagiarism, but it might very well be copyright infringement.
Fair use does not mean you can plagiarize someone's material, which is what the 'author' of this guide did.
Fair use doesn't care about plagiarism one way or the other. And in any event, this author didn't plagiarize; he didn't claim to be the author of Rowling's works, and only an idiot would think he was. He merely undercut his argument at having written a reference guide because it was such a terribly lousy reference guide. He quoted when he didn't need to, and when he did, the lack of citations made it difficult for readers to refer back to the passages in the books being referenced. That's kind of the point of a reference guide.
As you pointed out parodies are more exempt, but they still need to be different from the original at least to a certain extent. I cannot republish the series with the name Harri Pawter and a few extra paragraphs thrown in & claim it is a Parody.
Although the underlying work was not copyrighted, L.H.O.O.Q. would probably be a fair use despite the fact that all that Duchamp did was draw a couple of lines with a pencil, and write the title of the piece on the border. He made a number of copies of it; one hangs in the Pompidou Center, because it's a legitimate and relatively important work of art. You really don't need all that much to get a transformative work.
I absolutely have to disagree with you on this, Ray. Fair use is an equitable doctrine and catch-all, and it could not perform these functions if bright line rules were used. Just imagine if such rules had been adopted before Sony or Diamond, which expanded the types of fair uses known by quite a lot.
Honestly, you should know that if you have specific uses in mind that you'd like to protect, the answer is to enact statutory exceptions which make the use noninfringing without anyone needing to argue fair use, or worse, alter it. We have loads already, why not more? First sale is a good example; it is lawful to resell used books, not because of fair use, but because of the unrelated first sale doctrine and statutory exception.
I, for one, would like to see an exception legalizing any otherwise infringing activity by a natural person not acting commercially. But I wouldn't try to cram that into fair use.
Yeah, the courts have more or less wound up treating the 'such as' clauses as a list of examples, and everything not specifically listed has to fall under the 'or any other form.' Basically, merely being based upon a preexisting work isn't enough; to be a derivative, a work must be a new version or variation at least some protected part of the underlying work. Talking about a work, as a guide does, is seems unlikely to qualify.
That is all very nice, but it is terribly inaccurate. I mean, you could have at least looked at Wikipedia!
Without getting bogged down with details, fair use was not created for the benefit of universities or academics, though they have certainly been beneficiaries. And as law that was essentially a creation of the courts, until quite recently, there wasn't even a statute. Congress didn't even formally take note of the doctrine until the 1976 Act (fair use dates at least to the mid-19th century) when they included a statute (17 USC 107) which I shall reproduce here, in its entirety:
That is fair use. And notice what it actually said: "[T]he fair use of a copyrighted work ... is not an infringement of copyright." The factors are just components in a test to figure out if a test is fair. And it's not a mathematical test, or a bright line test. You needn't succeed with all four factors. In some cases, you can do quite poorly on most, and still succeed. But it depends on the details of "any particular case." Just because it was fair for Alice to do something doesn't mean it will be fair for Bob, if their circumstances are not precisely identical.
There are no numerical limits here, no 10% of this, or 2500 of the other, or any such nonsense. Those are not legal guidelines, those are the creation of laypeople who are flummoxed by the lack of clear guidance from the courts, since with the case-by-case nature of fair use, and the rules and interpretations (not included here; they'd be too much work than I'm prepared to invest in a /. post) there can never be clear guidance. Even canonical examples (parody, time shifting, etc.) are not really inevitably fair. It is a fuzzy, messy matter of equity, and apparently those folks just can't stand that, so they have guessed and unfortunately, you think their guesses are gospel.
This is of course, not true, and I can immediately see instances where what they advise is probably fair (they don't know, of course, no one does) might not be, and where what they say is probably not fair might be.
If you're interested in fair use, if you want to get a grasp on what it is, and where it comes from, and what the rules are, you will have to read a lot of cases regarding it. And then, like the courts, you will be left with a vague sense of it, which defies easy explanation, but at least you can look at a set of circumstances and have a good idea of whether it is fair or not. Because fair use must be able to accommodate any circumstances (the Folsom court could not have even imagined time shifting video tape) it can never be pinned down.
In any case, you might want to stop spreading your misinformation. Those are just guesses by and for people who can't stand fuzzy rules, regardless of the fact that the rules actually are fuzzy, and need to stay that way.
But if you're going to publish a 'reference' book, you have to do so in such a way that it doesn't take on the qualities of a derivative work.
That's usually pretty easy.
If you take long quotes from a book and then insert additional explanatory text around them in the same style, you haven't created a guidebook, you've created a modified version of the source work./i>
I suppose that's possible. But it would be an odd guidebook. You're essentially describing Cliff's Notes with extensive paraphrasing of the story between long verbatim quotes. That's an abridgment, and it would be a derivative.
We can immediately see that the Lexicon in this case isn't like that; it's organized alphabetically, not chronologically. A lot of text about the man-eating Aardvark from book 4, followed by the entry for the magical Albatross from book 1 is hardly putting the original story back together out of snippets and paraphrases.
Please remember that the court did not find the defendant to have infringed on the derivative right; the Lexicon is not a derivative work. Rather, the issue was verbatim copying, and too much of it.
That's true. But not really all that relevant here. The Lexicon was not supplanting the market for the novels. And as the court pointed out, "[n]otwithstanding Rowling's public statements of her intention to publish her own encyclopedia, the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works." There was a concern, however, that the lexicon might harm the market for some of the existing ancillary works it copied from, since it copied so much.
And more generally, there still isn't a right to profit. Remember, fair use only arises where there is prima facie infringement of an actual right, such as the right to reproduce the work in copies. Writing a bad review would not be infringement at all, unless it included quotes or something. Writing a competing series of terrible books would not be infringement either. Only if there is some underlying infringement would a fair use argument (and the fourth, monetary, factor) come into play. In the case of a review, I would be utterly amazed if a court decided that the loss of sales attributable to the review was relevant under the fourth fair use factor. I certainly cannot recall such an absurd outcome ever having happened.
A parody could be fair use, but substantial quotation doesn't belong in parodies.
That depends on the parody; every case is different. Besides, it is well-established that parodies have to copy quite a lot in order to make it clear just what they are parodying. This could involve verbatim copying, though it needn't necessarily, but there will be a lot of copying no matter what.
but surely it can't be a very high percentage of the total work.
First, the issue is how much was copied, not the ratio of copied:new material. Second, it's however much is fair, under the circumstances. Could be a lot, could be a little. Fair use is extremely vague, and deliberately so. Bright line rules don't mesh well with fairness.
thinking that an entire paragraph, in a short story sized work, was too much to justify. That's probably a pretty good rule of thumb.
Meh. I really wouldn't bother with rules of thumb for fair use. It's the overall circumstances of each case standing alone that matters. Any given rule of thumb is as likely to be wrong as it is right, because it does not take into account all of the surrounding issues. Go with your gut instincts instead, looking at the particular circumstances of the actual use in question.
Rowling has an exclusive right to create derivative works
Which is not implicated in this case; the guidebook was not a derivative work. Rather, the author got in trouble for his excessive verbatim copying.
imitating the style used in the series and its associated works
Would also not constitute a derivative work.
Derivatives are defined in the law:
As you can see, merely being based upon a preexisting work isn't enough. In practice, the derivative has to recast, transform, or adapt the preexisting work. An adaptation, like "Harry Potter: The Opera" would be a derivative. A sequel book, such as "Harry Potter and the Endless Revenue Stream" would be a derivative work. But as the court pointed out, a mere reference guide is not a derivative work, because it does not recast, transform, or adapt the thing to which it is a guide. This was covered pretty well in the Beanie Baby case, and the point was repeated in this case.
Likewise, merely using the style of the Harry Potter books would not constitute a derivative work, because that doesn't recast, transform, or adapt the preexisting books.
undercuts Rowling's ability to profit from the work in a way that a guide book written using a different style would not.
So? Copyright does not include a right to profit. Imagine the absurd results that would occur if it did: A scathing review of the latest book or movie that caused it to be a big flop would constitute copyright infringement! Even if it didn't copy so much as a word. Likewise, a rival author who wrote a series of dreadful books about vampires which drew away the audience for Harry Potter could be accused of infringing on the basis that her (bad) original works were undercutting Rowling's profits, despite a total lack of copying anything.
I was not aware that society's subjective judgment of whether someone has made "enough" money from one's intellectual property was a factor in copyright law. Either there's a copyright infringement or there isn't. Rowling's wealth and success are irrelevant.
Oh, it's not. It's a big factor in copyright policy, however, so perhaps that's where the confusion arises. After all, if copyright is meant to promote the public good by encouraging authors to create and distribute works by means of granting them a limited economic monopoly on the work for a limited period of time, how much money authors make, and how often they make it, and how, etc., becomes pretty important.
The problem is that nearly every description was lifted from the books in a reasonably clear case of plagerism and/or derivitive works.
Plagiarism isn't infringing, or even illegal. Plagiarism is when you copy someone's ideas (which are not protected by copyright) and claim them as your own (which copyright doesn't care about). Copying someone's written work verbatim, even with plenty of attribution, and disclaiming any credit for it would not be plagiarism, but could quite easily be copyright infringement.
As for derivatives, this isn't one, and the court pointed that out. The infringing work doesn't retell or recast the story or adapt it in another medium; it's just a reference guide for the books. It merely copied, and it copied enough, and in such a way, that they lost their fair use argument.
However, this particular lexicon made no effort to add such value over the books themselves.
That might be relevant insofar as one would claim that it's a reference guide, and thus transformative, but generally it is irrelevant. What matters is how much you copy, not how much you add. Besides which, the court rejected the argument that the lexicon had to be a work of literary criticism or some such. A mere guidebook is okay.
In effect, it was merely a reorganization of J.K. Rowling's books into a dry reference. Something for which only the author has a legal right to grant. ... The targeted book contained no original thoughts
No, doing that is perfectly fine. This particular author was a little quote-happy is all. Had he been a bit more careful, he would have been well within his rights to write a dry reference. And again, dry references are not inherently infringing. Original thoughts aren't necessary.
Fair use has rules about quote length and attribution
No, it doesn't. Fair use ultimately boils down to 'you can use as much as is fair, given the overall circumstances.'
When you time shift television, you're 'quoting' the entire thing, and stand a good chance of successfully claiming that it's a fair use. In other circumstances, however, excessive copying can sink a fair use argument handily.
There's also no attribution requirement, but if you claim that you were engaged in a particular type of fair use, and that type of use normally involves attribution, failure to include the attribution may harm your argument, and ultimately, your defense.
Fair use necessitates attribution- making it clear when text is being quoted or paraphrased, and when new material is being added by the author.
No it doesn't.
This particular defendant, however, claimed that he had written a reference guide. Since the novels are not reference guides, this would be a transformation of the copyrighted works, and it strengthens a fair use argument to show that the defendant has used the underlying work in a transformative manner. The court noted, however, that due to the lack of attribution, it wasn't actually a very good reference guide. This undercut the claim of it being a transformative work. That, in turn, weakened the fair use argument.
If he had instead written a parody, he would not have had to include attributions, since parodies are a type of transformative work where attributions aren't really expected. Such a parody could easily be a fair use.
Imitating Rowling's style is part of what creates the confusion.
It might further harm the 'it's a reference guide' argument, but copyright does not protect mere writing styles, nor does copyright care about confusion. Copyright chiefly cares about copying. A novel written in Rowling's style that didn't copy anything protectable from her corpus of work, would not infringe her copyrights.
Copyright law is not grounded in reality.
Then, at the very least, it ought to be reformed to reflect this. Personally, I think that you're overstating the matter, and failing to distinguish between copyright as applied to individuals, and copyright as applied to businesses, corporate entities, etc. As I mentioned earlier, I think that we might as well abolish copyright to the degree that it prevents natural persons acting non-commercially (thus, Alice and Bob could share files to their hearts' content) but preserve copyright otherwise (such that Carolco would still have to pay to get the rights to adapt Dave's novel into a film).
But it is bad to have laws on the books that people don't respect; it engenders disrespect for more vital parts of the law. In such cases, the law should reflect social norms, unless there is a very compelling reason to use the law to try to change those norms, e.g. civil rights laws in the 1950's and 60's. Copyright is not that important, so it should be pared down to whatever people's expectations of it are.
No, it's true. They do fall under reproduction, as it is defined in the statutes and case law.* That doesn't make it necessarily infringing, though. There are plenty of exceptions to infringement, but whether any, and if so, which, apply, depends on the circumstances involved.
The exceptions are similar, in a way, to defenses. If you were on trial for murder, once the prosecution proved that you killed the victim, you could argue self-defense. But if the prosecution never managed to prove that you did it in the first place (because the supposed victim is in the gallery, alive and well, for example), then you never need to allege self-defense since the prima facie case can't be made.
Fair use, first sale, etc. only come into play when there has been some manner of infringing action for them to act as an exception to.
RIAA lawyer spotted.
Oh, sure. Let's see: I support abandoning all of the copyright treaties we're in; requiring all published works to be timely registered in order to get a copyright; reducing the length of copyright terms to a few years, and only 15-25 years with multiple renewals, which also must be timely applied for; abolishing criminal penalties; and making it legal for natural persons acting non-commercially to do whatever they like, without risk of infringement. So yes, I am obviously just parroting the RIAA position. Sheesh.
Look, I try to tell people what the law really is, rather than bother with fantasies about what laypeople imagine it to be. I think it's important, because actual copyright law is usually much worse than people think it is. By educating people as to the truth, perhaps we can encourage reform, which is greatly needed.
* Well, there is that one recent case that found a particular act of storing data in memory to not be reproduction, but this is a very unusual outcome (if a good one), and of somewhat limited value due to the circumstances that would need to occur to take advantage of it at the user level.
Not as such, but copyright applies to distribution not consumption.
While that is true, it is nevertheless misleading because of what you've left out. Copyright applies to a whole host of activities involving copyrighted works. Distribution is one, but reproduction is another. So while a downloader isn't liable for the distribution infringements of the uploader, he is liable for his own reproduction of the work, which necessarily occurs when he downloads it.
Despite what many firms may believe they only have the right control distribution.
17 USC 106 disagrees with you:
Copying things to memory, copying things to other formats, making copies for personal use -- all of those fall under reproduction. In some cases, there may be various statutory exceptions that apply (e.g. sections 107, or 117). But often this will not be the case.
Now if we can actually get a body of case law which deals with that in an unambiguous fashion, then we'll have something
Well, what you've got is a large body of case law that unambigiously says that downloading is infringing, so good luck with that.
There was a copyright argument over a century ago in the US about the copyright of telephone directory data.
That may very well be true; I'd have to check.
But the main case here about copyrighting phone books is Feist v. Rural, which took place in 1991. There, while no one claimed that the data was copyrightrightable, it was claimed that the compilation and arrangement of the data was, which would require competitors to laboriously re-gather all the underlying data if they wished to print their own phone books. That argument was thoroughly rejected by the US Supreme Court, who said that compilations and arrangements are, like anything else, only copyrightable if creative, without any regard to the labor involved in their creation. And since the phone book in that case was not creative -- it was a list of all the listed numbers in the area, along with the corresponding names and addresses, arranged alphabetically by last name -- it could be copied freely. There can be copyrightable phone books (or other compilations of fact) but they require creative decisions in choosing what data to select for inclusion and how to arrange them.
I am by no means whatsoever a copyright abolitionist ...
the public-good view of copyright requires that the artist be incentivized to the extent necessary for them to create
Well, I think you've got a little bit of a conflict there.
First, remember that there are two public goods: the public benefit of having more works created, and the public benefit of being unrestricted as to those works. Encouraging more creation by granting copyrights reduces the second benefit at the same time as it increases the first. The trick is that they don't scale linearly; even a very short copyright term, with a very small scope of protection can yield a much larger incentivizing benefit than its inherent detriment. But a very long, broad, term could wind up having little additional incentivizing benefit, making it a net detriment, and thus a bad idea.
Second, this being the case, it is possible in some circumstances that granting any copyright would have no incentivizing benefit outweighing the inescapable detriment. Architectural works strike me as being of this type. We didn't grant copyrights for buildings until 1990. Prior to that, we had plenty of buildings being designed and built. Afterwards, nothing changed. Construction is really governed by how much money people have for buildings, how much demand there is, what's tasteful, etc. Copyright does not play a role. Thus, there's no more works being created as a result of the copyright incentive to the point where it outweighs the public detriment that is automatic from granting copyrights. This sort of copyright, then, should be abolished.
Likewise, it is possible, if much less likely, that changing circumstances in the future could result in copyright not being enough of an incentive to ever justify itself. So we ought not to forever forswear abolition. Rather, we ought to leave it on the table as one possible option, should circumstances ever change to make it the best policy. I don't think we're there yet, and we may never be, but let's not arbitrarily get rid of the idea.
There was copyright in Shakespeare's day.
Yes, but it was not what we think of as being copyright now.
Copyright in the modern sense first appeared in Britain in 1710, well after Shakespeare. Prior to that, there was a thing called the Stationers' Copyright. Basically it was a form of official censorship (nothing could be legally printed without being approved by the government) and a collusive monopoly amongst the printers to keep prices high and competition low. Each printer would choose a book and register it, and thus have a monopoly on printing it. But the authors didn't have any rights to their own works. Printers could get copyrights on authors' books without permission and without payment. All they needed was a copy of the manuscript or some such.
In fact, in Shakespeare's day, there were plenty of unauthorized editions of his plays (generally acquired by paying actors who had learned the play to dictate it to a scribe, sometimes with hilarious results) but no authorized editions. It wasn't until the First Folio, after Shakespeare died, that a good edition came along.
And it's a fairly good thing, too, that there wasn't meaningful copyright at the time, since all but one of Shakespeare's plays was based on previous works, some historical, some fictional, some quite recent. He wasn't the only person writing about Romeo and Juliet or Hamlet, you know.
Since the Stationers' Copyright died a long time ago, and has no relationship to copyright since then, most people ignore it, and can justifiably say that copyright didn't really come along until 1710.