However, punitive damages in this case vastly outstripped the compensatory damages.
No, actually. There really aren't punitive damages available for copyright infringement. Whether actual or statutory, the damages are considered to be compensatory. The closest it comes is that willful infringement can raise the ceiling on statutory damages.
it sure won't help your diplomacy if you withdraw from treaties because they are inconvenient after proposing them yourself
We didn't propose all of them ourselves, e.g. Berne (which we wisely avoided for about a century, and comes from France), and in any event, countries always follow their own self-interest; it's just a factor in diplomacy. Hell, it's a factor in copyright, which serves the public good (i.e. everyone's collective self-interest) by leveraging the self-interest of authors who will do certain things in order to get copyrights. It's a bit like using the self-interest of a mule chasing after a carrot on a stick to serve your own self interest in having him pull a cart.
reeks of "here's a rule for you guys but we don't care".
No, we'd be having a major policy change: 'this was a stupid rule, everyone should feel free to abandon it, just as we are doing.'
And it'd royally fuck your economy over
Maybe, but the interesting thing is, too much copyright is a drag on the economy of creative works, and at the extremes, can be worse than too little, or no copyright. Reforming copyright, which necessitates withdrawal from copyright treaties, could very well improve the economy. Sure, we've been relying heavily on it, but that reliance may have been ill-placed, like expecting property values to only go up. Excessive copyright requires that everyone, worldwide, respect it. This is not happening either, and ignoring the evidence is probably not helpful.
You are correct in that some compilations of facts are copyrightable as compilations, though that copyright does not extend to the facts within. However, like all copyrightable works, in order for a compilation to be copyrightable, it must be creative. In this case, the selection and arrangement of facts must be creative. Selecting all the facts, and arranging them in a pedestrian fashion would not qualify. This is why, for example, the white pages in phone books are not copyrightable: the selection is everyone with a listed number in the area covered, their names, their numbers, and their addresses, and the arrangement is alphabetical, by last name. It is the acme of an uncreative work. This is all discussed at length in the famous Feist decision by the Supreme Court; I'd suggest reading it. If it's uncopyrightable, verbatim copying is A-OK. There is absolutely no 'sweat of the brow' doctrine in the US.
A creative phone book would be one that didn't list everyone, and perhaps arranged them in some creative fashion. A listing of your favorite places to go, arranged by how much you like them, would probably qualify.
Whether the material at issue here is copyrightable or not, I couldn't venture an opinion, not having seen it.
Same deal, really. We aren't required to make treaties, and treaties can be withdrawn from. Frankly, meaningful copyright reform will never happen in the US unless with withdraw from most, if not all, of our copyright treaties. All the people out there who want terms shorter than life+50 -- they're implicitly advocating withdrawal. It's more popular than it seems.
Still, the reality is that if Activision is going after a true pirate (as defined by copyright statute, not the RIAA and not Webster's)
And where, pray tell, does it do that? The main definitions section in the US Copyright Act is 17 USC 101. There are a few other definitions scattered around.
I think you'll find, however, that 'pirate' is only a colloquialism, at least so far as copyrights are concerned. In the law, everyone who infringes is an infringer; it matters not whether it's a person unlawfully making a copy for his own use, or an international ring of illicit manufacturers, distributors, etc. This is somewhat problematic, in that it results in infringers all along the spectrum being subject to the same sorts of penalties, with little regard to their individual circumstances.
Whether you or I believe that piracy is "good" for Activision is irrelevant... they get to decide that, not us.
You might not want to give up your involvement, either. You, and I, and the rest of us, get to decide what copyright law should be, at least via the representative government we've created, empowered, can participate in, and which serves us. While it may be up to the copyright holder to decide to what degree he wants to exercise his rights, it is up to everyone else to decide what rights he has to begin with. We're not obligated to have copyright laws at all, you know. Nor are we obligated to have copyright laws that make any particular action illegal. If we decide they ought to be changed, then we can have them changed. Unless of course the government isn't being responsive to the will of the people, in which case it may lose its legitimacy.
As soon as you make a profit from someone else's copyrighted work, without their permission, you don't have a hint of a leg to stand on. You deserve to be sued and, hopefully, the copyright holder will win.
You might want to back down a little bit.
Consider, for example, if Alice creates a copyrighted work, and Bob, without permission, creates a parody of that work, and sells copies for a profit. Or if Bob buys used copies of Alice's work, and resells them, without permission, and for a profit. Both of these are likely to be perfectly legal, despite the fact that Alice doesn't get to have a say, and isn't seeing any of the money.
Just because it involves someone else's work, a profit, and no permission, that doesn't make it illegal.
In the US, at least, that's correct. The federal Constitution is supreme, with federal law and treaties at an equal level (where they conflict, the most recent trumps). All of those are superior to state constitutions, which are superior to state laws.
People often misread the Constitutional language indicating that treaties are superior to state constitutions, which is where the confusion arises.
This having been said, treaties are often used as an end-run around Congress. First, they're developed by the executive branch, which otherwise cannot write federal law at such a high level, and can be much more secretive and less receptive to the will of the people than Congress. Second, only the Senate is involved in ratification, and they cannot amend treaties, so it's a pure yes or no vote. Third, the Senate can be pressured into ratifying, on the basis that the US has committed to its treaty partners, after a diplomatic process that may have taken years, and shouldn't let them down at such a late stage. And fourth, if the treaty is not self-executing, Congress as a whole is pressured into enacting enabling legislation, lest we not be in compliance with the treaty.
It isn't good, but we're stuck with this system and its flaws, barring either a Constitutional amendment that would give Congress more of a diplomatic role, or the Congress (particularly the Senate) developing a spine and looking to the public interest.
Door to door solicitation doesn't fit. The relative costs are too even.
So? There's nothing wrong with inexpensive one-to-many mediums of communication, regardless of who uses them.
There is no other communication method which attempts to deliver it's message whether you want it or not.
Except for all of them, actually. If I have a telephone, just to name one example, other people implicitly have permission to call me. I am not obligated to have a telephone, or to answer if it rings, or to not screen my calls. But people can certainly call me whether I want them to or not. It is my responsibility to tell them to not call me. I can do this by actual or constructive notice as discussed already elsewhere in the thread.
Email is no different. Someone can send email to me, but only if I chose to have an email account, which I'm not obligated to have. I don't have to accept their email, but I can choose to do so, and most people have the (perhaps bad) habit of automatically allowing anyone to email them. Spammers are not to blame for the enabling decisions of the people they send spam to. No one is hacking into your computer and forcing you to buy the things advertised. No one is forcing you to receive or read the spam. Quit playing the victim.
Spammers who will abide by your notice to them to not spam you in the future, ought to be protected by the law. Spammers who ignore your wishes that you have communicated to them, or who send spam regarding illegal activities or which are deceptive, are the only ones who, merely by spamming, may be unprotected.
Most spam is designed to get around filters designed to stop spam. That is, at least implicitly, an indication that the sender recognized that I do not want his message.
Maybe, but I think, not necessarily. Think about junk mail. It can be sent as a flyer or postcard, with ads clearly on both sides, and you know exactly what it is when you collect your mail. It goes directly from the mail box to the trash can. But there is nothing wrong or illegal about a mail marketer sending an advertisement in a plain, hand-addressed, stamped envelope. It doesn't look like an ad, it looks like a letter. You're more likely to read it, instead of instantly discarding it. But it's still the same junk mail, in the end. I've seen some of these, as well as other semi-camouflaged pieces of junk mail.
If you're just passively filtering ads -- whether junk mail or spam -- then all the sender knows is that he is having a low success rate, and needs to adapt. He hasn't been provided with actual notice that you don't want spam from him, and I think the argument as to constructive notice is iffy. So long as it is isn't deceptive, he isn't obligated to make it easily filterable. Such an obligation might pass constitutional muster, however. Another analogy would be ads in newspapers that are printed so as to look similar to articles in that paper, and thus sneak past the ad filter in your head.
Freedom of speech includes the right to listen to (or not) whichever message you want to.
I absolutely agree, and spam is no threat to this. You do not have to have an email account, receive emails you don't want, or read or save emails you don't want. No spammer in the world can force this to be otherwise. But it behooves recipients of spam to not be so damn indiscriminate as to what emails they are willing to receive, read, and save. When you choose to do look at every damn thing that arrives, don't be surprised when some of it is spam.
First, you're wrong about that. For Alice to send an email to Bob, both bear part of the cost. Alice is not paying for Bob to be on the Internet, and to be able to receive email, but she is paying for herself to be online with the ability to send email. And there may be parts of the network in between that are not paid for by either party, but are available for use, for whatever reason.
So you really only bear the costs to receive email; the spammer is paying the cost of sending it.
Second, no one is forcing you to bear those costs. If you don't like receiving emails, then don't have an email account. You are not obliged to receive unsolicited email, nor to have an email account at all, nor even to be online. You have freely chosen to be online, to have email, and to receive email from anyone, anywhere, on any subject. This includes spam. You didn't need to choose that, but you did. If spam is so upsetting to you, why didn't you get an email account on a network that doesn't allow for spam to begin with?
Just as all people with front doors implicitly permit salespeople to enter onto their property to talk to them, just as all people with mailing addresses implicitly permit people to send them junk mail, just as all people with telephones implicitly permit telemarketers to call them, all people with email implicitly permit spammers to send spam to them.
Of course, none of those people are obligated to be a good audience. A person can refuse to open the door, or slam it shut. A person can throw away junk mail without reading it. A person can screen their phone calls or hang up on them. And a person can whitelist their email, employ spam filters, etc. Permitting people to send is not the same as guaranteeing that you will receive.
And you can rebut that implicit permission to send as well, by means of actual or constructive notice. Actual notice is telling specific people to go away, constructive notice is providing some reasonable means of letting them know before they even try (e.g. "No solicitation" signs, Do-Not-Call lists). Both means are perfectly usable on law-abiding spammers, who are the only spammers that are protected by the law in the first place.
That's great and all, but it's got nothing to do with spam. Free speech does not involve aiming a thousand megaphones at someone's head and blurting out ads, drowning out most other things.
It absolutely does. Try going to Times Square sometime; you've described it perfectly. A marketer who delivers ten thousand different, ordinary, law-abiding commercial leaflets to you each and every day is fully protected by the law. It isn't his problem that you have a hard time coping with them. If you want him to stop, you need only tell him, or otherwise place him on notice, and the law will be on your side. If he's already breaking a constitutional law, or ignores your requests, then by all means seek out legal remedies if they're available (they may not be; I doubt there is a good solution in the law to the problem of spam).
But I have no sympathy for people who are too lazy to take even the simplest action. Especially not when a deeply important issue -- protecting unpopular speech -- is at issue.
Because I pay for someone else flooding me with crap.
You pay to have a telephone, you pay to have a mailing address, you pay to have a house, and you pay (at least in terms of opportunity costs) whenever you talk with solicitors. Email is nothing special in that regard.
This is not a free speech issue.
Commercial speech which regards lawful activity and is not misleading is protected by the First Amendment, according to the Supreme Court in numerous decisions. Not all spam will fall into that category, but at least some might. And non-commercial spam -- political, religious, creative, etc. -- is even more protected. Any anti-spam law is going to have to deal with the fact that that subset of spam is protected free speech.
That's the problem - there IS no "real world" analogy that fits properly.
Sure there is: door to door solicitation. For someone to come up to your door to sell you something, they have to enter on to your property, and waste your time talking to you. And society has deemed this to be acceptable. The onus is on you, the person who does not want solicitors at all, to make his wishes known, whether in response to a particular solicitor ("Go away") or to all solicitors in advance (e.g. a "no solicitors" sign, which reasonably puts them on notice).
Telephone solicitation works substantially the same way: telemarketers are using your resources and your time, and you've consented by default by having a phone attached to the public phone network. It's up to you to tell them to not call again, or to let them know in advance (e.g. with the Do-Not-Call list).
Why should email be any different?
No one is forcing messages on to your computer. This is a common misconception, which does not hold true, except in cases of malware. You've willingly opened up your computer to incoming messages from total strangers, by having an email account and no facilities to screen it upstream of you. If you don't want the subset of spam which is protected under the First Amendment (e.g. commercial speech which concerns lawful activity and is not misleading, and where the government lacks a substantial reason to regulate that speech, and where the regulation actually advances its purpose, but is not more extensive than is necessary to do so; look on Wikipedia for the Central Hudson case for more on this issue) then either tell the spammer to not spam you anymore, or let them know in advance via some analog to the Do-Not-Call list.
Spammers who ignore this should be liable in some manner, and spammers who deal with unlawful activity or deception are already in trouble. And spammers ought to be obligated to provide a clear and simple way to accept actual notice that you want them to stop, and should be required to abide by means of constructive notice, such as Do-Not-Spam lists, or other similar measures. That's fine. But spammers who act within the bounds of the First Amendment, and who have not been placed on notice by you, do have a right to send spam to you. You aren't obligated to read it, or save it, or even accept delivery of it, but they can try to send it.
Of course, given that there are plenty of spammers who would ignore even a constitutional law as I've described it, and who are outside of the jurisdiction of anyone who might care to stop them. So frankly, I doubt that any legal measure is really going to be all that useful. If you really want to stop spam, come up with some technical measure which stops spam. Just make sure that it permits unlimited, free email (I'm on some mailing lists), and unsolicited email (I sometimes get potential clients from out of the blue, since someone else has given them my email address, and I don't want to lose any possible business). Get the world to switch to that, and we'll be doing good.
Or better yet, find something important worth bitching about. I despise all advertising, in all formats and media (I filter out text ads, for God's sake, and I'd love to filter out ads in real life, too), but I'd rather have free speech, along with plenty of speech I hate, than have free speech infringed upon, even if society was more civil or orderly as a result. If you'd defend the rights of, say, a Nazi, to go door to door preaching hate to anyone who cares to listen, then defending a spammer ought to be easy. I can't stand either, but the principle is too important to allow my distaste to get in the way.
The opinion is actually pretty mild, and is about as friendly to the defendant as it could possibly be, without changing the ultimate ruling. As the court says, "[w]hile the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon's purpose of aiding readers of literature generally should be encouraged rather than stifled."
Rowling does not have a right to prevent the publication of third party reference works such as this. It doesn't matter that her work is creative, and it doesn't matter that she is considering writing her own. But this particular reference work happens to cross the line. As the court implies, if the Lexicon was whipped into shape, pursuant to the flaws identified in the opinion, it very likely could ultimately be published.
The two mistakes made by the author were 1) he quoted too much; 2) he didn't make the quotes clear enough, and he didn't cite them well enough. The first point actually strikes me as a little funny, since a good legal brief or law review article usually is little more than direct quotations artfully arranged to form arguments. The audiences for those works are not interested in what a lawyer might think about the law, they're interested in what a lawyer can show about the law. Original writing is not all that valued. Anyway, the problem was essentially that when Rowling would describe something with flowery language, the lexicon author would not paraphrase, or write more plainly and directly. Instead he'd quote directly. That's okay to a degree, but there was really just way too much of this going on.
The other mistake was that the quotes were not always printed as such (e.g. no quotation marks) and usually lacked citations. Where citations were present, they were quite vague, pointing merely to a chapter, rather than to a particular page of the first edition in which they appeared, or some such. This isn't strictly required by copyright, mind you. Plagiarism is not the same thing as copyright infringement -- some acts of plagiarism are legal, some acts of infringement are not plagiarism, and sometimes a particular act is both. The Lexicon authors claimed that their work was a serious reference work (not a work of literary criticism; that's different), and therefore was protected by fair use. That's true, being that sort of work would tend to indicate fairness. However, the lack of proper quotes and cites made them a really lousy reference work, and undercut their argument significantly. Requiring competence for a use to be fair seems a rather novel theory, but it's not wholly unreasonable, at least where measuring it wouldn't be overly subjective (e.g. saying that a parody isn't fair merely because the judge didn't think it was funny).
Anyway, I disagree with others that this ruling could chill other guide authors. I think it is actually a lot friendlier to them than, say, the Castle Rock case was. The guide at bar happens to make a poor showing, but it would be pretty easy to work around the limits the court suggests. I would quite like to see the author of the Lexicon revise his work substantially, probably improving it in the process, and coming back to get the injunction lifted so that the second edition could be printed.
Lawyers have, however, been known work "pro bono" - or for a share of the proceeds.
Uh, just to clarify there, 'pro bono' (short for 'pro bono publico,' lit. 'for the public good') is when a lawyer works for free. When a lawyer works for a share of the winnings, if any, he is working on a contingency basis (or for a contingency fee). They are two very different things.
At least here in Illinois the power of the municipalities is laid out in the state constitution. It is called "home rule".
That's fine. I didn't say that states could necessarily discard their own sub-polities with ease, just that it is the state which creates and empowers them, and which can ultimately undo them. So long as the state follows the requirements the federal constitution has for states, e.g. having a republican form of government, it can be organized internally however it likes. The organization can be established in the state constitution, or a statute, or whatever; it doesn't matter.
For example, in my state, there's been a trend lately to abolish counties, leaving behind the cities and towns in their former geographic boundaries to assume all the duties that the counties performed.
I wouldn't count most of the popular "art forms" (entertainment) as either "knowledge" or "learning", however, particularly as there exist far superior ways to communicate and preserve historical facts -- not that most entertainment is factual in nature to begin with.
Well, no one ever said that the knowledge involved had to be of any practical value, just that it is knowledge. Entertainment would seem to qualify. Certainly popular entertainment (in the form of books) was good enough for the Parliament that enacted the Statute of Anne, and for the first Congress, which enacted the first US copyright law.
You are, of course, free to suggest revisions to copyright, such as it only applying to history books, or something (which would be a bit funny, as facts are uncopyrightable, and may be copied from whatever source they are found in), but I don't think it would be the wisest policy. Myself, I'm happy to encourage all forms of creative works, provided that the public is ultimately left the better off for it.
Ooh, close, but just short of the mark. In the late 18th century, 'science' would mean knowledge, or learning. Grammar and rhetoric would qualify as sciences, for example. It's only in more recent years that the word has become more of a synonym for the natural and physical sciences, e.g. physics or chemistry. For more on this, I refer you to your convenient pocket-sized unabridged OED.
Kudos, however, for knowing that the useful arts refers to applied technologies. Other remnants of that meaning of the word 'art' can be seen in the patent field, such as 'prior art' or 'person having ordinary skill in the art' or 'state of the art technology.'
Well, it's nothing to do with the federal constitution. Regulatory power in the US is invested by the people in the states, who grant some of it to the federal government, who retain some of it, and who empower municipalities, counties, etc. as they see fit. States are perfectly free to strip municipalities of their authority to regulate businesses, zone property, establish building codes, etc.
Actually, in an eminent domain case, while you generally cannot prevent the state from taking the property in question, you can dispute the amount. If the two sides cannot come to an agreement, it goes to court, where each side presents evidence as to the value of the property in question and what the effect of the new use for the land is (e.g. less parking, drainage issues, increased traffic), and a jury (or at worst, a judge) decides how much to award. Eminent domain suits are a routine matter, usually occurring whenever a road is widened.
Also, who says that the state is trying to 'buy' the property? Usually the words are 'take' or 'condemn.'
Yes, I know. I chose the examples deliberately. It's not because authors and publishers don't want to have that level of control; the doctrine arose precisely because they were trying to get it. But the public doesn't grant them that power, so the choices the author makes as to that issue are meaningless.
Any part of copyright (i.e. rights of the author to prevent other people from doing things with regard to works) is on the table, so the other choices the earlier poster alluded to equally may or may not be empowered by the public as we see fit via the government we empowered to serve us.
This happens now. Publishers of all sorts get many more manuscripts than they actually publish. If an author can't find anyone willing to invest in publishing the work, he either has to self-publish or let the work collect dust. Often, no one is ever interested in it, and it never gets published, not in 50 years, not ever.
This is actually a good reason to require depositing copies of the work in the Library of Congress as a condition of getting a copyright in the US (and requiring and funding the LoC so that it keeps them). Maybe no one will ever care about it; that's perfectly common. But it's better than works sitting in closets or getting thrown in the trash.
Sure, one might argue that there never used to be copyright until only a few hundred years ago, and one might observe that artists seemed to get by before then, but let's remember that back then, copying something was very hard work... it had to be done by hand and was error prone and tedious enough that it was sufficient deterrent for somebody to try to produce accurate unauthorized copies of published works. Not that this stopped some unscrupulous people from trying, but inevitably, such efforts would fail simply due to the unreliability of the process and the person trying to publish unauthorized copies just could not compete.
That is not even slightly true. There were lots of pirate publishers in ages past (in fact, that meaning of the word 'pirate' predates the first modern copyright law by decades!). Your mistake is in comparing the ease of publication then, with the ease of publication now. That's incorrect, though. What you need to look at is the ease of publication for an authorized publisher, compared with an unauthorized publisher, at the same point in time. And you'll find that it's always the same, or that the authorized publisher has a slight advantage from legitimacy, by being able to operate openly. When everyone was using moveable type printing presses, the only big difference between publishers was who had access to a copy of the work, and who could avoid censorship or sanction by the state or a guild. Nowadays, it is much easier for anyone to be a publisher, but the same tools that an ordinary pirate uses are quite available to authorized publishers. No technical issue is preventing RIAA or MPAA members from distributing their works via Bit Torrent or whatever. They just don't want to. And as for optical media, the authorized publishers tend to have an advantage in economies of scale. Pirates either have to sneak in time at the same facility used legitimately, buy their own at great expense, or deal with more expensive per unit forms of disc making (e.g. DVDRs, which cost more to make than pressed DVDs, in volume).
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However, punitive damages in this case vastly outstripped the compensatory damages.
No, actually. There really aren't punitive damages available for copyright infringement. Whether actual or statutory, the damages are considered to be compensatory. The closest it comes is that willful infringement can raise the ceiling on statutory damages.
it sure won't help your diplomacy if you withdraw from treaties because they are inconvenient after proposing them yourself
We didn't propose all of them ourselves, e.g. Berne (which we wisely avoided for about a century, and comes from France), and in any event, countries always follow their own self-interest; it's just a factor in diplomacy. Hell, it's a factor in copyright, which serves the public good (i.e. everyone's collective self-interest) by leveraging the self-interest of authors who will do certain things in order to get copyrights. It's a bit like using the self-interest of a mule chasing after a carrot on a stick to serve your own self interest in having him pull a cart.
reeks of "here's a rule for you guys but we don't care".
No, we'd be having a major policy change: 'this was a stupid rule, everyone should feel free to abandon it, just as we are doing.'
And it'd royally fuck your economy over
Maybe, but the interesting thing is, too much copyright is a drag on the economy of creative works, and at the extremes, can be worse than too little, or no copyright. Reforming copyright, which necessitates withdrawal from copyright treaties, could very well improve the economy. Sure, we've been relying heavily on it, but that reliance may have been ill-placed, like expecting property values to only go up. Excessive copyright requires that everyone, worldwide, respect it. This is not happening either, and ignoring the evidence is probably not helpful.
You are correct in that some compilations of facts are copyrightable as compilations, though that copyright does not extend to the facts within. However, like all copyrightable works, in order for a compilation to be copyrightable, it must be creative. In this case, the selection and arrangement of facts must be creative. Selecting all the facts, and arranging them in a pedestrian fashion would not qualify. This is why, for example, the white pages in phone books are not copyrightable: the selection is everyone with a listed number in the area covered, their names, their numbers, and their addresses, and the arrangement is alphabetical, by last name. It is the acme of an uncreative work. This is all discussed at length in the famous Feist decision by the Supreme Court; I'd suggest reading it. If it's uncopyrightable, verbatim copying is A-OK. There is absolutely no 'sweat of the brow' doctrine in the US.
A creative phone book would be one that didn't list everyone, and perhaps arranged them in some creative fashion. A listing of your favorite places to go, arranged by how much you like them, would probably qualify.
Whether the material at issue here is copyrightable or not, I couldn't venture an opinion, not having seen it.
Same deal, really. We aren't required to make treaties, and treaties can be withdrawn from. Frankly, meaningful copyright reform will never happen in the US unless with withdraw from most, if not all, of our copyright treaties. All the people out there who want terms shorter than life+50 -- they're implicitly advocating withdrawal. It's more popular than it seems.
Still, the reality is that if Activision is going after a true pirate (as defined by copyright statute, not the RIAA and not Webster's)
And where, pray tell, does it do that? The main definitions section in the US Copyright Act is 17 USC 101. There are a few other definitions scattered around.
I think you'll find, however, that 'pirate' is only a colloquialism, at least so far as copyrights are concerned. In the law, everyone who infringes is an infringer; it matters not whether it's a person unlawfully making a copy for his own use, or an international ring of illicit manufacturers, distributors, etc. This is somewhat problematic, in that it results in infringers all along the spectrum being subject to the same sorts of penalties, with little regard to their individual circumstances.
Whether you or I believe that piracy is "good" for Activision is irrelevant ... they get to decide that, not us.
You might not want to give up your involvement, either. You, and I, and the rest of us, get to decide what copyright law should be, at least via the representative government we've created, empowered, can participate in, and which serves us. While it may be up to the copyright holder to decide to what degree he wants to exercise his rights, it is up to everyone else to decide what rights he has to begin with. We're not obligated to have copyright laws at all, you know. Nor are we obligated to have copyright laws that make any particular action illegal. If we decide they ought to be changed, then we can have them changed. Unless of course the government isn't being responsive to the will of the people, in which case it may lose its legitimacy.
As soon as you make a profit from someone else's copyrighted work, without their permission, you don't have a hint of a leg to stand on. You deserve to be sued and, hopefully, the copyright holder will win.
You might want to back down a little bit.
Consider, for example, if Alice creates a copyrighted work, and Bob, without permission, creates a parody of that work, and sells copies for a profit. Or if Bob buys used copies of Alice's work, and resells them, without permission, and for a profit. Both of these are likely to be perfectly legal, despite the fact that Alice doesn't get to have a say, and isn't seeing any of the money.
Just because it involves someone else's work, a profit, and no permission, that doesn't make it illegal.
---- People will accept your ideas much more readily if you tell them that Benjamin Franklin said it first.
Now that sounds like a genuine Franklin quote.
"Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!"
- Benjamin Franklin
Of course, Franklin never actually said that. It's more likely from the late 20th century.
In the US, at least, that's correct. The federal Constitution is supreme, with federal law and treaties at an equal level (where they conflict, the most recent trumps). All of those are superior to state constitutions, which are superior to state laws.
People often misread the Constitutional language indicating that treaties are superior to state constitutions, which is where the confusion arises.
This having been said, treaties are often used as an end-run around Congress. First, they're developed by the executive branch, which otherwise cannot write federal law at such a high level, and can be much more secretive and less receptive to the will of the people than Congress. Second, only the Senate is involved in ratification, and they cannot amend treaties, so it's a pure yes or no vote. Third, the Senate can be pressured into ratifying, on the basis that the US has committed to its treaty partners, after a diplomatic process that may have taken years, and shouldn't let them down at such a late stage. And fourth, if the treaty is not self-executing, Congress as a whole is pressured into enacting enabling legislation, lest we not be in compliance with the treaty.
It isn't good, but we're stuck with this system and its flaws, barring either a Constitutional amendment that would give Congress more of a diplomatic role, or the Congress (particularly the Senate) developing a spine and looking to the public interest.
Door to door solicitation doesn't fit. The relative costs are too even.
So? There's nothing wrong with inexpensive one-to-many mediums of communication, regardless of who uses them.
There is no other communication method which attempts to deliver it's message whether you want it or not.
Except for all of them, actually. If I have a telephone, just to name one example, other people implicitly have permission to call me. I am not obligated to have a telephone, or to answer if it rings, or to not screen my calls. But people can certainly call me whether I want them to or not. It is my responsibility to tell them to not call me. I can do this by actual or constructive notice as discussed already elsewhere in the thread.
Email is no different. Someone can send email to me, but only if I chose to have an email account, which I'm not obligated to have. I don't have to accept their email, but I can choose to do so, and most people have the (perhaps bad) habit of automatically allowing anyone to email them. Spammers are not to blame for the enabling decisions of the people they send spam to. No one is hacking into your computer and forcing you to buy the things advertised. No one is forcing you to receive or read the spam. Quit playing the victim.
Spammers who will abide by your notice to them to not spam you in the future, ought to be protected by the law. Spammers who ignore your wishes that you have communicated to them, or who send spam regarding illegal activities or which are deceptive, are the only ones who, merely by spamming, may be unprotected.
Most spam is designed to get around filters designed to stop spam. That is, at least implicitly, an indication that the sender recognized that I do not want his message.
Maybe, but I think, not necessarily. Think about junk mail. It can be sent as a flyer or postcard, with ads clearly on both sides, and you know exactly what it is when you collect your mail. It goes directly from the mail box to the trash can. But there is nothing wrong or illegal about a mail marketer sending an advertisement in a plain, hand-addressed, stamped envelope. It doesn't look like an ad, it looks like a letter. You're more likely to read it, instead of instantly discarding it. But it's still the same junk mail, in the end. I've seen some of these, as well as other semi-camouflaged pieces of junk mail.
If you're just passively filtering ads -- whether junk mail or spam -- then all the sender knows is that he is having a low success rate, and needs to adapt. He hasn't been provided with actual notice that you don't want spam from him, and I think the argument as to constructive notice is iffy. So long as it is isn't deceptive, he isn't obligated to make it easily filterable. Such an obligation might pass constitutional muster, however. Another analogy would be ads in newspapers that are printed so as to look similar to articles in that paper, and thus sneak past the ad filter in your head.
Freedom of speech includes the right to listen to (or not) whichever message you want to.
I absolutely agree, and spam is no threat to this. You do not have to have an email account, receive emails you don't want, or read or save emails you don't want. No spammer in the world can force this to be otherwise. But it behooves recipients of spam to not be so damn indiscriminate as to what emails they are willing to receive, read, and save. When you choose to do look at every damn thing that arrives, don't be surprised when some of it is spam.
E-mail is special because I bear the cost
First, you're wrong about that. For Alice to send an email to Bob, both bear part of the cost. Alice is not paying for Bob to be on the Internet, and to be able to receive email, but she is paying for herself to be online with the ability to send email. And there may be parts of the network in between that are not paid for by either party, but are available for use, for whatever reason.
So you really only bear the costs to receive email; the spammer is paying the cost of sending it.
Second, no one is forcing you to bear those costs. If you don't like receiving emails, then don't have an email account. You are not obliged to receive unsolicited email, nor to have an email account at all, nor even to be online. You have freely chosen to be online, to have email, and to receive email from anyone, anywhere, on any subject. This includes spam. You didn't need to choose that, but you did. If spam is so upsetting to you, why didn't you get an email account on a network that doesn't allow for spam to begin with?
Just as all people with front doors implicitly permit salespeople to enter onto their property to talk to them, just as all people with mailing addresses implicitly permit people to send them junk mail, just as all people with telephones implicitly permit telemarketers to call them, all people with email implicitly permit spammers to send spam to them.
Of course, none of those people are obligated to be a good audience. A person can refuse to open the door, or slam it shut. A person can throw away junk mail without reading it. A person can screen their phone calls or hang up on them. And a person can whitelist their email, employ spam filters, etc. Permitting people to send is not the same as guaranteeing that you will receive.
And you can rebut that implicit permission to send as well, by means of actual or constructive notice. Actual notice is telling specific people to go away, constructive notice is providing some reasonable means of letting them know before they even try (e.g. "No solicitation" signs, Do-Not-Call lists). Both means are perfectly usable on law-abiding spammers, who are the only spammers that are protected by the law in the first place.
That's great and all, but it's got nothing to do with spam. Free speech does not involve aiming a thousand megaphones at someone's head and blurting out ads, drowning out most other things.
It absolutely does. Try going to Times Square sometime; you've described it perfectly. A marketer who delivers ten thousand different, ordinary, law-abiding commercial leaflets to you each and every day is fully protected by the law. It isn't his problem that you have a hard time coping with them. If you want him to stop, you need only tell him, or otherwise place him on notice, and the law will be on your side. If he's already breaking a constitutional law, or ignores your requests, then by all means seek out legal remedies if they're available (they may not be; I doubt there is a good solution in the law to the problem of spam).
But I have no sympathy for people who are too lazy to take even the simplest action. Especially not when a deeply important issue -- protecting unpopular speech -- is at issue.
Because I pay for someone else flooding me with crap.
You pay to have a telephone, you pay to have a mailing address, you pay to have a house, and you pay (at least in terms of opportunity costs) whenever you talk with solicitors. Email is nothing special in that regard.
This is not a free speech issue.
Commercial speech which regards lawful activity and is not misleading is protected by the First Amendment, according to the Supreme Court in numerous decisions. Not all spam will fall into that category, but at least some might. And non-commercial spam -- political, religious, creative, etc. -- is even more protected. Any anti-spam law is going to have to deal with the fact that that subset of spam is protected free speech.
That's the problem - there IS no "real world" analogy that fits properly.
Sure there is: door to door solicitation. For someone to come up to your door to sell you something, they have to enter on to your property, and waste your time talking to you. And society has deemed this to be acceptable. The onus is on you, the person who does not want solicitors at all, to make his wishes known, whether in response to a particular solicitor ("Go away") or to all solicitors in advance (e.g. a "no solicitors" sign, which reasonably puts them on notice).
Telephone solicitation works substantially the same way: telemarketers are using your resources and your time, and you've consented by default by having a phone attached to the public phone network. It's up to you to tell them to not call again, or to let them know in advance (e.g. with the Do-Not-Call list).
Why should email be any different?
No one is forcing messages on to your computer. This is a common misconception, which does not hold true, except in cases of malware. You've willingly opened up your computer to incoming messages from total strangers, by having an email account and no facilities to screen it upstream of you. If you don't want the subset of spam which is protected under the First Amendment (e.g. commercial speech which concerns lawful activity and is not misleading, and where the government lacks a substantial reason to regulate that speech, and where the regulation actually advances its purpose, but is not more extensive than is necessary to do so; look on Wikipedia for the Central Hudson case for more on this issue) then either tell the spammer to not spam you anymore, or let them know in advance via some analog to the Do-Not-Call list.
Spammers who ignore this should be liable in some manner, and spammers who deal with unlawful activity or deception are already in trouble. And spammers ought to be obligated to provide a clear and simple way to accept actual notice that you want them to stop, and should be required to abide by means of constructive notice, such as Do-Not-Spam lists, or other similar measures. That's fine. But spammers who act within the bounds of the First Amendment, and who have not been placed on notice by you, do have a right to send spam to you. You aren't obligated to read it, or save it, or even accept delivery of it, but they can try to send it.
Of course, given that there are plenty of spammers who would ignore even a constitutional law as I've described it, and who are outside of the jurisdiction of anyone who might care to stop them. So frankly, I doubt that any legal measure is really going to be all that useful. If you really want to stop spam, come up with some technical measure which stops spam. Just make sure that it permits unlimited, free email (I'm on some mailing lists), and unsolicited email (I sometimes get potential clients from out of the blue, since someone else has given them my email address, and I don't want to lose any possible business). Get the world to switch to that, and we'll be doing good.
Or better yet, find something important worth bitching about. I despise all advertising, in all formats and media (I filter out text ads, for God's sake, and I'd love to filter out ads in real life, too), but I'd rather have free speech, along with plenty of speech I hate, than have free speech infringed upon, even if society was more civil or orderly as a result. If you'd defend the rights of, say, a Nazi, to go door to door preaching hate to anyone who cares to listen, then defending a spammer ought to be easy. I can't stand either, but the principle is too important to allow my distaste to get in the way.
The opinion is actually pretty mild, and is about as friendly to the defendant as it could possibly be, without changing the ultimate ruling. As the court says, "[w]hile the Lexicon, in its current state, is not a fair use of the Harry Potter works,
reference works that share the Lexicon's purpose of aiding readers of literature generally should be encouraged rather than stifled."
Rowling does not have a right to prevent the publication of third party reference works such as this. It doesn't matter that her work is creative, and it doesn't matter that she is considering writing her own. But this particular reference work happens to cross the line. As the court implies, if the Lexicon was whipped into shape, pursuant to the flaws identified in the opinion, it very likely could ultimately be published.
The two mistakes made by the author were 1) he quoted too much; 2) he didn't make the quotes clear enough, and he didn't cite them well enough. The first point actually strikes me as a little funny, since a good legal brief or law review article usually is little more than direct quotations artfully arranged to form arguments. The audiences for those works are not interested in what a lawyer might think about the law, they're interested in what a lawyer can show about the law. Original writing is not all that valued. Anyway, the problem was essentially that when Rowling would describe something with flowery language, the lexicon author would not paraphrase, or write more plainly and directly. Instead he'd quote directly. That's okay to a degree, but there was really just way too much of this going on.
The other mistake was that the quotes were not always printed as such (e.g. no quotation marks) and usually lacked citations. Where citations were present, they were quite vague, pointing merely to a chapter, rather than to a particular page of the first edition in which they appeared, or some such. This isn't strictly required by copyright, mind you. Plagiarism is not the same thing as copyright infringement -- some acts of plagiarism are legal, some acts of infringement are not plagiarism, and sometimes a particular act is both. The Lexicon authors claimed that their work was a serious reference work (not a work of literary criticism; that's different), and therefore was protected by fair use. That's true, being that sort of work would tend to indicate fairness. However, the lack of proper quotes and cites made them a really lousy reference work, and undercut their argument significantly. Requiring competence for a use to be fair seems a rather novel theory, but it's not wholly unreasonable, at least where measuring it wouldn't be overly subjective (e.g. saying that a parody isn't fair merely because the judge didn't think it was funny).
Anyway, I disagree with others that this ruling could chill other guide authors. I think it is actually a lot friendlier to them than, say, the Castle Rock case was. The guide at bar happens to make a poor showing, but it would be pretty easy to work around the limits the court suggests. I would quite like to see the author of the Lexicon revise his work substantially, probably improving it in the process, and coming back to get the injunction lifted so that the second edition could be printed.
try googling for Aslan & Jesus.
I think I'll pass on that. I really don't want to see Aslan/Jesus slashfic, and you know there's some out there, somewhere.
Lawyers have, however, been known work "pro bono" - or for a share of the proceeds.
Uh, just to clarify there, 'pro bono' (short for 'pro bono publico,' lit. 'for the public good') is when a lawyer works for free. When a lawyer works for a share of the winnings, if any, he is working on a contingency basis (or for a contingency fee). They are two very different things.
At least here in Illinois the power of the municipalities is laid out in the state constitution. It is called "home rule".
That's fine. I didn't say that states could necessarily discard their own sub-polities with ease, just that it is the state which creates and empowers them, and which can ultimately undo them. So long as the state follows the requirements the federal constitution has for states, e.g. having a republican form of government, it can be organized internally however it likes. The organization can be established in the state constitution, or a statute, or whatever; it doesn't matter.
For example, in my state, there's been a trend lately to abolish counties, leaving behind the cities and towns in their former geographic boundaries to assume all the duties that the counties performed.
I wouldn't count most of the popular "art forms" (entertainment) as either "knowledge" or "learning", however, particularly as there exist far superior ways to communicate and preserve historical facts -- not that most entertainment is factual in nature to begin with.
Well, no one ever said that the knowledge involved had to be of any practical value, just that it is knowledge. Entertainment would seem to qualify. Certainly popular entertainment (in the form of books) was good enough for the Parliament that enacted the Statute of Anne, and for the first Congress, which enacted the first US copyright law.
You are, of course, free to suggest revisions to copyright, such as it only applying to history books, or something (which would be a bit funny, as facts are uncopyrightable, and may be copied from whatever source they are found in), but I don't think it would be the wisest policy. Myself, I'm happy to encourage all forms of creative works, provided that the public is ultimately left the better off for it.
Ooh, close, but just short of the mark. In the late 18th century, 'science' would mean knowledge, or learning. Grammar and rhetoric would qualify as sciences, for example. It's only in more recent years that the word has become more of a synonym for the natural and physical sciences, e.g. physics or chemistry. For more on this, I refer you to your convenient pocket-sized unabridged OED.
Kudos, however, for knowing that the useful arts refers to applied technologies. Other remnants of that meaning of the word 'art' can be seen in the patent field, such as 'prior art' or 'person having ordinary skill in the art' or 'state of the art technology.'
Well, it's nothing to do with the federal constitution. Regulatory power in the US is invested by the people in the states, who grant some of it to the federal government, who retain some of it, and who empower municipalities, counties, etc. as they see fit. States are perfectly free to strip municipalities of their authority to regulate businesses, zone property, establish building codes, etc.
Crackpot theories can be discussed elsewhere; please limit the discussion to the science here.
What site is this, and what has it done with Slashdot
Actually, in an eminent domain case, while you generally cannot prevent the state from taking the property in question, you can dispute the amount. If the two sides cannot come to an agreement, it goes to court, where each side presents evidence as to the value of the property in question and what the effect of the new use for the land is (e.g. less parking, drainage issues, increased traffic), and a jury (or at worst, a judge) decides how much to award. Eminent domain suits are a routine matter, usually occurring whenever a road is widened.
Also, who says that the state is trying to 'buy' the property? Usually the words are 'take' or 'condemn.'
Yes, I know. I chose the examples deliberately. It's not because authors and publishers don't want to have that level of control; the doctrine arose precisely because they were trying to get it. But the public doesn't grant them that power, so the choices the author makes as to that issue are meaningless.
Any part of copyright (i.e. rights of the author to prevent other people from doing things with regard to works) is on the table, so the other choices the earlier poster alluded to equally may or may not be empowered by the public as we see fit via the government we empowered to serve us.
This happens now. Publishers of all sorts get many more manuscripts than they actually publish. If an author can't find anyone willing to invest in publishing the work, he either has to self-publish or let the work collect dust. Often, no one is ever interested in it, and it never gets published, not in 50 years, not ever.
This is actually a good reason to require depositing copies of the work in the Library of Congress as a condition of getting a copyright in the US (and requiring and funding the LoC so that it keeps them). Maybe no one will ever care about it; that's perfectly common. But it's better than works sitting in closets or getting thrown in the trash.
Sure, one might argue that there never used to be copyright until only a few hundred years ago, and one might observe that artists seemed to get by before then, but let's remember that back then, copying something was very hard work... it had to be done by hand and was error prone and tedious enough that it was sufficient deterrent for somebody to try to produce accurate unauthorized copies of published works. Not that this stopped some unscrupulous people from trying, but inevitably, such efforts would fail simply due to the unreliability of the process and the person trying to publish unauthorized copies just could not compete.
That is not even slightly true. There were lots of pirate publishers in ages past (in fact, that meaning of the word 'pirate' predates the first modern copyright law by decades!). Your mistake is in comparing the ease of publication then, with the ease of publication now. That's incorrect, though. What you need to look at is the ease of publication for an authorized publisher, compared with an unauthorized publisher, at the same point in time. And you'll find that it's always the same, or that the authorized publisher has a slight advantage from legitimacy, by being able to operate openly. When everyone was using moveable type printing presses, the only big difference between publishers was who had access to a copy of the work, and who could avoid censorship or sanction by the state or a guild. Nowadays, it is much easier for anyone to be a publisher, but the same tools that an ordinary pirate uses are quite available to authorized publishers. No technical issue is preventing RIAA or MPAA members from distributing their works via Bit Torrent or whatever. They just don't want to. And as for optical media, the authorized publishers tend to have an advantage in economies of scale. Pirates either have to sneak in time at the same facility used legitimately, buy their own at great expense, or deal with more expensive per unit forms of disc making (e.g. DVDRs, which cost more to make than pressed DVDs, in volume).