No, you're wrong. The relevant legal definitions -- from 17 USC 101 -- are these:
To "perform" a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.
To "transmit" a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.
To perform or display a work "publicly" means-- (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
Both the broadcaster and the church are engaged in performance of the work.
No, you're overreacting. Take a look at 17 USC 106(4) and the definition of a public performance in section 101. But copyright does allow control over more than just copying.
This is why the NFL made a point that advertising revenues are affected;
No, that's bogus. Nielsen can easily tweak their statistical models to account for this. They're already doing so to account for things like Tivos, downloading, etc.
how can they claim a church, receiving/viewing the broadcast, is "copying," and therefore in violation of copyright?
They're not. They're claiming that the church is engaging in a public performance, and therefore is infringing the copyright. Copyright deals with more than just copying, you know. Take a look at 17 USC 106 for the central rights that comprise copyright, and perhaps check out section 101 for a few key definitions, such as what makes a performance a public one.
Furthermore, to be copyrighted, a work must be fixed into a "tangible medium." That is not the case for a live broadcast (although it might be for an after-the-fact replay).
Actually, they are routinely fixed simultaneously with the transmission.
The telecast is licensed for "private home viewing"
No, it's not, actually. Copyright law doesn't give any rights to the copyright holder with regard to private performances, so the copyright holder has nothing to license. In fact, even if he claimed that you couldn't watch the show privately on the basis of copyright law, you still could.
Only public performances fall under the ambit of copyright law.
Hell playing the radio in a Dr's office is technically infringing!
No, that would probably fall quite nicely into the 17 USC 110(5) "homestyle" exception.
So that for example GPL developers have to register all their code if they don't want Microsoft and Apple to take it for free?
Yes.
I think that's a very poor idea that leaves the little guy fairly defenseless while organizations will have copyright lawyers just like patent lawyers that'll register anything just in case.
No.
First, they cannot copyright someone else's work. Copyrights can only be granted to the author -- the person who originates the work. If a work is copied, the copyist is not the author. This is why if you photograph the Mona Lisa and make a slavish reproduction of it, that photograph is not copyrightable. Further, even if you did add some creative element in the photograph, only that element would be copyrightable, and not the portion that was copied.
Second, copyright only deals with originality, not novelty. If you write a piece of code that by sheer coincidence is identical to someone else's code, then it is not an infringement. It's only an infringement if you copied yours from theirs. In an environment such as computer software, similarities are expected and not a big deal. Cf. movies, where there are fewer outside considerations (such as efficient algorithms, standardized formatting styles, etc.) to contend with.
Third, copyright only deals with expressions of ideas, not with the underlying ideas themselves. Anyone can copy someone else's algorithms, so far as copyright is concerned (patents may play a factor, however) so long as they don't copy the way that it is expressed. And see point two above with regard to similarity of expression.
So you really don't have to worry about someone else taking your code and then attacking you with it. The worst that could happen would be that they could freely use it, and anyone else could too, even if it involved copying that snippet of code from the second party. Nor do you have to worry about infringing their rights any more than you do now.
More importantly, though, they won't bother to register absolutely everything. While the burden should be minimal, there should still be a slight burden so that copyright isn't abused in roughly the manner you fear. Ideally, copyright should only be sought out and granted where it is a necessary incentive for the author to have created that work. Trying to copyright too much will, hopefully, be beyond the ability of even a large developer.
Additionally, another reform which I would like to see would be for authors who wish to copyright software to have to deposit a complete copy of the source code, along with such additional notes, comments, technical information, etc. as is necessary for a person skilled in the field to make full use of the code, with the Library of Congress. Trade secrets for copyrighted software would be impossible, just as is the case for patents. The code would not be open source -- you could learn from it, but not copy it, during the copyright term -- but this would probably not be a big deal. Further, the copyright terms for software should probably be quite short, since there's little point in decades-old software being the newest thing to enter the public domain. And any kind of work which was DRMed by or with the authorization of the copyright holder would immediately enter the public domain.
I suppose that it is possible that the OSS movement would diminish to some extent. However, I think that it would be because it would not be as important to have anymore as a bulwark against closed software. Frankly, I think it would be worth it if you look at the big picture. And if you don't, then how are you really any different than a movie studio that simply wants to preserve its way of life regardless of the effects it has on everyone else?
If it's truly a great book, in true free market fashion, people will be prepared to pay a higher price, including dealing with IP restrictions.
If it's a truly free market, then there is no artificially imposed scarcity of commodities. If the market is free, then anyone can copy and sell the book. The solution for the author then, is to take his ball and go home. Perhaps the public is fine with that, however, if the price he demanded was too high.
Copyright is a bribe to the author to get him to do what the public wants. It's a means of exploitation to serve the public self-interest by appealing to the author's self-interest. It's not the kind of thing that you see in a free market. A municipal utility monopoly is a similar beast.
Allowing the option to opt out of copyright is really the most tried-and-true method of finding a sweet spot between production and consumer rights.
No it's not. The US had an opt in system since our first copyright laws all the way to 1978. It is extremely tried-and-true. The current system is the aberration here. It places the decision in the hands of the author, as he is the person best suited to decide whether he wants a copyright, but defaults to the side of the public if the author fails to act entirely, further encouraging the author to take an interest in his own affairs.
It's certainly more trivial than registering for a copyright would be.
I'm not trying to find the system that requires the least effort by the author, I'm trying to find the system that encourages the creation of works where that encouragement is necessary, doesn't waste resources superfluously encouraging works that would be created anyway, and which has works enter the public domain as soon as possible, with as little copyright prior to then.
When an author is willing to create a work for free, we should be willing to allow him to do so. Such an author is already ignoring copyright. An opt out system means that the author who doesn't care about copyright also doesn't care about not having a copyright, and so the public is saddled with the cost of giving him something he doesn't want.
It is better for the authors who want a copyright to identify themselves, since they have an interest in doing so. We don't want it to be hard for them to step forward, but we do want to know specifically who needs a copyright, and who doesn't. This way works. Your way doesn't work, as is seen by how few public domain dedications there have been since 1978. It's demonstrable; you really can't argue with it.
Plus, it's significantly cheaper to enable copyright by default than to maintain a database of all the copyrighted works out there.
Wrong. First, there would be far, far fewer copyrighted works, since authors don't care about copyrights for most of their works. (E.g. in an opt-in system I bet that you would not bother to copyright your Slashdot posts; they're probably not important enough to you, and you would've posted anyway, making it appropriate for them to be in the public domain) Second, such a database is not difficult to maintain. The Copyright Office already keeps these sorts of records, and has done since long before they had the advantage of computers. Modern technology would make quick work of it. Third, such a database is absolutely necessary! Without records, you can't know whether a work is copyrighted or not, and if copyrighted, who holds the rights, and for how long. This means that many works that are in the public domain are still untouchable because no one can be certain. Doubt results in tremendous waste, and this is known as the orphan works problem. You would certainly never suggest that we burn our land title records, or bank records, or vehicle registration records. Without them, the transactional costs in their respective fields would skyrocket and we'd all be worse off. Copyright records are essential for copyright to best serve the public interest.
That's true, but on the same token, we don't have to
25 years is plenty of time to exploit a work before it becomes public domain.
Well, in fact, I propose terms of 1-5 years each, which the copyright holder can renew if he chooses. Some classes of work age more rapidly, and could have fewer renewals, thus limiting their maximum possible term length. I'm mainly thinking of software here, though the canonical example of a quick-aging work is a newspaper, which you can sell in the morning, and is fishwrap by evening.
What I object to is the idea that every digital thing that gets created should immediately be free to anyone who wants it. If that's the author's intention, fine, and in the real world, there's no way to prevent it. All I'm saying is that a freeloader mentality from listeners and viewers will ultimately impede the creation of new work.
I agree with you, but I still think it's a good idea. Remember, there is a tradeoff. More freedom with regard to works during their term, and shorter terms, is just as important as encouraging the creation of those works to begin with. The trick is that their relationship isn't all that proportional. A one year copyright term would represent very little impairment of freedom, but would have a tremendous incentivizing effect upon authors, since even one year is better than none. Adding ninety-nine more years, however, doesn't result in ninety-nine times as many works created.
What I am suggesting is merely recognizing that most people will pirate works and not find it objectionable. Lacking a good reason to go against this, the law should abide by societal norms and legalize this. Banning it clearly hasn't worked, and only has resulted in disrespect for the law, and legal peril for people who behave in a socially acceptable, yet unlawful fashion.
I think it will reduce incentives of some works, but it won't eliminate them entirely. Remember, the exception is only for natural persons -- not businesses or other organizations -- and only where acting non-commercially -- so no money or other things of value (aside from the works themselves) can be involved. Copyright wouldn't stop people from sharing copies of the music on the net (provided that it was stringently non-commercial, so no ads on the site, no upload quotas, etc.) but would stop the song from being covered, or played on the radio, or synched to a video, or copies sold (for people who didn't choose to pirate; there'll be plenty) without copyright being brought in.
Even if some works aren't created, well, we may nevertheless be better off given the additional freedom we would have for those works that are. It's not hard to see how: I would never sculpt the moon into a work of art unless I had a perpetual copyright in which everyone had to pay me whenever the moon was visible in the sky, or they mentioned the moon, or thought of it, etc. It would be a great sculpture, but is it worth the cost? So far, the answer seems to be no.
There's nothing in copyright law that prevents competition from other copyrighted works
Yes, but one copy of a work contains the same work as another copy. Thus, copies of the same work are commodities. In a free market, many publishers would print copies of the same book, each trying to compete against one another, resulting in lower prices, multiple sources, etc. all of which benefit the reader. With copyrights, only the publisher chosen by the author may print that specific work, and can command any price he sees fit. It may or may not sell, but other works are not necessarily a substitute for that work, as any avid reader knows.
There's nothing in copyright law that mandates copyright be applied to every work despite the artist's wishes.
Of course, this could be improved dramatically, by restoring copyright to an opt-in system, rather than an opt-out system. Right now authors who don't want copyrights but cannot be bothered to put their works in the public domain wind up holding copyrights that they don't want and which nevertheless burden the public. Better would be to require authors who do want copyrights to register in order to get them, as we can expect them to jump over a trivial hurdle. This more neatly aligns the interests of authors and the public, and is how we've traditionally done things to boot, so we know it works!
All copyright does, in terms of the free market, is tie the value of the product to its distribution restrictions.
It does more than that, and it largely removes the work from the free market in the process.
If we were to completely stop buying restricted media, do you really think that business model could survive?
If we were to reduce the restrictions, we wouldn't have to stop, and we could still change the business model. Given that copyright exists to serve the public interest, I see no reason for the public to have to bother with a boycott, when copyright is a legislative creation and thus quite easy to change legislatively, given a democratic society.
Used bookstores deal in the reselling of physical property where the rights to that physical copy have already been transferred legally from the copyright holder to the purchaser. How this is analogous to the topic at hand eludes me.
This is not necessarily true; first sale applies to any lawfully made copy, regardless of whether or not that copy was made authorizedly. A copy that was made pursuant to fair use could be sold without the copyright holder having been involved.
At any rate, the objection made earlier had been that someone other than the copyright holder was profiting from the transaction and the copyright holder was not. This is true for the used bookstore as well. Either both must be offensive or there is a problem with the earlier complaint.
The Disney film(s) are not simply a verbatim copy of the fairy tale with "Disney's" put in front of the title.
They could be. I've bought copies of Shakespeare's plays before, and I damn well expect them to be verbatim copies. I'm not paying the Lamb's book.
Again though, this was merely an example of the flaw in the argument from the earlier post.
I am against basing a business on copyright infringement, is that clearer? The 'who' is not important, if this condition is satisfied, I am against it.
Okay. A follow-up question: do you think that copyright laws are currently perfect, or do you think that the laws should be changed. Could at least one of these changes involve reducing the length or scope of protection such that a business operating under the new laws would infringe if the current laws remained in effect?
First, by making the work of others available for free when the contributors to that work demand a specific sum for that work, they diminish the incentive of the creators themselves to create. Since creating something costs "something", and TPB offers it for near zero, the creator cannot compete in price.
I might quibble with the wording, but I basically agree with you there.
Second, TPB basically shuts out any possible competition from the creators themselves in the form of launching their own site similar to TPB, since by virtue of their position as creators, their cost of production will always be higher than TPB's because they must face the cost of creating in addition to providing the services TPB does, and will have difficulty competing in terms of value because of the what I mentioned earlier. Because the cost of creating is so much higher than the cost of providing services similar to TPBs, this closes the only other avenue the creator has available to him to market his good.
Well, I disagree there. There is no technology that pirates can use which publishers cannot. Further, due to economies of scale, publishers usually have the technological advantage available to them, should they wish to take it. For example, a CD made in a CD factory is cheaper to manufacture than a CDR burned by a downloader. The issue is simply that the publishers are not willing to use the same P2P technologies since they can't figure out how to make money at it. They could easily launch a functionally identical website tomorrow, if they chose, but they'd just be giving away their goods.
So I think you're really just restating the first issue. This isn't really a separate problem.
But let's say that you're correct (as I think that you are) and that widespread piracy amongst consumers results in a reduced incentive for authors to create works, and so fewer works are created.
So? The objective of copyright is to have as many works as possible created and published, which otherwise would not have been, and for those works to enter the public domain as rapidly as possible, and to be restricted as little as possible until then. Trading off fewer works for more freedom is an entirely appropriate bargain. The only issue is whether the public benefit is greater having done this, or having not.
You're looking at the problem in the wrong way, I'm afraid. Copyright law is more interested in where you got the numbers (and function) from, rather than merely what they are. I would suggest reading the excellent essay here which gets into this.
Remember that copyright is a state granted monopoly over a commodity good meant to advance a social purpose. I don't see much room for the free market there. A free market would seem to demand the abolition of copyright.
In any event, copyright needs to be reformed from top to bottom. Term limits are not the only problem, in fact, I wouldn't even consider them to the be most important problem. Your suggestion is pretty silly, IMO.
Yes, but you're only looking at half the picture so far.
Remember, if the artist wants a copyright on his artwork, then he has to convince society to give it to him; just claiming one when everyone ignores you is an exercise in impotence. It's the same as declaring yourself Emperor of Asia if you cannot personally back up your assertion. Just as the artist is under no obligation to create or publish his art if people don't pay him, society is under no obligation to give the artist a copyright if the artist doesn't pay society (by, e.g. publishing the art which will relatively promptly enter the public domain so that everyone can stop paying the artist and still get to keep the art).
If society is grants copyrights excessively (e.g. too-long terms, too many rights, etc.) then it harms society and is much like your situation A. If they don't grant enough, then while it may not harm society, it fails to help as much as it could. The trick is to find the right set of laws that helps society the most. Whether or not the artist likes this the most is not really important, since if he didn't, it would necessarily be against the interests of the entire rest of the world to satisfy him. It would be pretty silly to place him above everyone else.
Weirdly, though, that's pretty much where we now find ourselves.
What if we're willing to tolerate a reduced volume and quality of work since we regard what we get in exchange (no copyrights, apparently) to be of greater value? Just because it's a big piece of a small pie, that doesn't necessarily mean you're better off with a small piece of a big pie.
I'd be perfectly happy to shrink copyright terms to no more than 20-25 years, perhaps less, eliminate copyright on some classes of work (e.g. architecture), require strict formalities such as registration and deposit, and make it legal for natural persons to do whatever they like with works, so long as they act non-commercially. Would the number of works and their quality decline? Maybe a little bit, but I don't think it would go down very far, and we would have gained a lot of freedom that more than makes up for it.
This is the heart of the issue, TPB is profiting off of works they did not help make possible. Not only that, but they give ZERO to the people that DO make them possible. This is shameful and disgusting. I hope they and every site like it is shut down and their founders imprisoned.
You mean like used bookstores, which is an example of a for-profit business that makes money reselling books that the store owner didn't write, and which doesn't pay a cent to the copyright holder? Or how Disney profits when they make a movie based on public domain fairy tales that they didn't write and don't pay to use? You're against them too, I take it?
Merely profiting off of a work someone else created and not paying that person is not necessarily shameful, disgusting, or illegal. I'm not a big fan of TPB either, but I caution you against tarring with too broad a brush. You should not only be more precise as to who you are against and who you aren't, but you should also give a reason and an explanation as to why that's a good reason.
I'd like to point out a significant technical/legal quibble. AFAIK, there are only two ways that they *could* prove "unlawful downloading".
Oh, there are other ways it could be done. A convenient one would involve finding someone who was caught for uploading but turned out to be easier to sue for downloading once it was determined that he had mainly done that. After all, you don't have to sue someone for every kind of infringement they engage in. Or they could just've admitted it, or been turned in by someone else, or shown up prominently in logs that the plaintiff managed to acquire from someone else (e.g. a torrent site).
You're right, though; it's usually pointless from a tactical perspective to sue mere downloaders (there are better people to sue first), and impractical as well. Most cases involving mere downloaders usually involve the downloaders as direct infringers upon whom secondary liability for someone else is hung. E.g. Napster was liable for helping downloaders to infringe, which required that downloading be infringing to begin with.
Well, I'm a lawyer who specializes in US copyright, and you're wrong. Copyright deals with distribution, but it also deals with several other rights, including reproduction, which is what a downloader does. There's really no argument that downloaders are not infringers. But they're smaller fish and harder to find than uploaders are (who are in turn smaller than certain developers, e.g. Napster, Grokster, or service providers), which means that since RIAA, MPAA et al like to get the most bang for their buck and have limited resources, they prefer to target uploaders over downloaders. They could sue downloaders, it's just inefficient, so they don't.
If you'd like to read the relevant part of the US law, it is at 17 USC 106.
Just their name? A fact. Their address? Another fact. Together? Creative.
No, not really. Compilations of facts are only copyrightable when the compilation itself is original. There's nothing original about putting your name along with your address on a business letter.
You done wrong (a fact)*, what you can do about it (a fact)* and what'll happen if you don't (a fact)* copyrightable when combined?
It is the wording, not the underlying message.
If Leonardo Da Vinci rose from the dead, and painted a masterpiece which was actually allegorical and conveyed all the same information in the C&D letter, then it too would be copyrightable. Copyrights deal with expressions of ideas, not the ideas themselves.
Boy meets girl is an idea. Romeo and Juliet is an expression.
Essentially, you're asking why we should permit works to be copyrighted if they are unpublished. I share your concern. I think that among other aspects of the long-needed complete reform of copyright, we need to only permit published works to be copyrighted, although I would say that mere deposit in the Library of Congress would qualify as publication. Likewise, public performances should be considered publication (since the publication date is key to setting the copyright term). A lesser form of copyright would be available for works which were unpublished but which were intended for publication (e.g. manuscripts still in progress) provided that some proof has to be shown indicating the intent (similar to what you might see in an interference proceeding) and there is a time limit, to discourage the idea of sitting on these materials, or of later persons publishing what are, honestly, public domain materials.
I'd tell the judge that since this ruling is copyrighted too
No, it's not. US government works, such as opinions issued by federal courts, are uncopyrightable. See 17 USC 105. It would be nice if this were applied to all governmental entities, etc. None of them need the incentive of copyright, and it's an embarrassment to the public to have their governments assert such rights over them.
Well, the UCC is written to trump first-sale rights and such, partly based on their success with EULAs to date. That in mind, it is the only issue.
Well, it's more that first sale is weak and permits first sale to be contracted away. UCC Art. 2 doesn't mean to trump first sale, and indeed, whether it does or not depends entirely on how you interpret it. ProCD and Klocek differ in their interpretations of a single section, and thus reach entirely opposite conclusions as to the enforceability of EULAs.
But I expect the EULA provisions of the UCC(UCITA?) are going to be struck down because it flies in the face of hundreds of years of the most fundamental precedent - that contracts must be up front, fully visible, understood, and agreed on by both parties to be binding.
First, no, that wouldn't be grounds for overturning UCITA; statutes trump the common law. Second, UCITA was enacted in only two states, while several other states enacted anti-UCITA laws to shield their citizens from it. It's pretty dead.
No actually, I am buying the license to listen to a particular copyrighted work
Well, that's certainly not how it works in the US, anyway. US copyright law does not cover mere listening to a copyrighted work. Since the copyright holder never has the right to control mere listening, he has no power to issue a license, nor is one required. The closest it comes is that copyright does include public performances (sometimes), and so if you were going to play the CD for a paying audience in a concert hall or something, then you might need some sort of license.
You can see the main rights that together, comprise copyright at 17 USC 106. Non-public performances -- i.e. listening to a CD you bought -- are not included.
Buying something purported to be such a license would be as foolish as buying the Brooklyn Bridge. Of course, I've never heard of any of the record labels even claiming such a thing for ordinary retail CDs, so I'd be surprised if the opportunity would arise in the first place.
You had me until that point. You can make as many copies as you feel like, DISTRIBUTING those copies fall under copyright law. Last time I check, fair use still existed.
Hoist by your own petard, I'm afraid.
First, copyright deals with both the reproduction of works as well as the distribution of works, among other things. From 17 USC 106:
[T]he 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;... (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;
Second, of course, since fair use is a defense to copyright infringement, you would only need to assert that your copying was a fair use if it was prima facie infringing. Acts which are totally noninfringing aren't fair use, because they don't need to be. It's akin to how you don't need to argue that you attacked someone in self-defense when you didn't attack anyone to begin with.
But first we must decide if copying is indeed "theft" or not. Since theft is indeed an ethical issue.
Infringement isn't theft. Also, theft is not an ethical issue; property law is just as utilitarian as copyright law is, though it's a bit murkier as it developed in a more organic fashion over a longer period of time. There can be ethically-founded arguments to justify theft, I suppose.
Then we must decide if following laws are an ethical proposition, or if the principle behind the law takes precedence in our ethical system.
I'd put the ethics first, generally, but with every attempt made to ensure that the laws conform to our ethics so as to reduce the danger of a conflict between ethics and the law. Some laws won't have an ethical component anyway (e.g. zoning laws, jaywalking, copyright) so they're pretty easy to mold the way we want, but also can more easily get out of control as there's no sort of built-in governor or sanity check, as it were.
True, fair use does care about how much of the work was unauthorizedly used and how important those portions were to the work. It's not determinative, however. Sometimes it is fair use even when you copy all or a substantial part of the work, and sometimes it is not fair use where you use only excerpts.
Well, it is true that software ordinarily doesn't need to be licensed; it's entirely possible to buy and sell software just like a book, and for it to be useful. You don't need licenses to permit software to be run, or installed, or backed up, by the person who buys a copy (e.g. a generic user who buys retail).
As for whether or not software licenses are applicable in the US when the developer purports they are, that's a a different issue. I suggest reading two cases on the subject: ProCD v. Zeidenberg (in which you can either agree to the license or return the software for your money back, but not disagree and use the software except in supposedly unusual circumstances), and Klocek v. Gateway (in which the buyer is perfectly free to reject the license and keep and use the software). The ProCD side is winning, but it's not over yet.
In any event, it's really more of a UCC issue, regarding contracts and the sales of goods, rather than a copyright issue. Copyright law likely doesn't preempt state sales law on this question, so it really doesn't matter too much.
Slashdot Mirror
Both the broadcaster and the church are engaged in performance of the work.
No, you're overreacting. Take a look at 17 USC 106(4) and the definition of a public performance in section 101. But copyright does allow control over more than just copying.
This is why the NFL made a point that advertising revenues are affected;
No, that's bogus. Nielsen can easily tweak their statistical models to account for this. They're already doing so to account for things like Tivos, downloading, etc.
how can they claim a church, receiving/viewing the broadcast, is "copying," and therefore in violation of copyright?
They're not. They're claiming that the church is engaging in a public performance, and therefore is infringing the copyright. Copyright deals with more than just copying, you know. Take a look at 17 USC 106 for the central rights that comprise copyright, and perhaps check out section 101 for a few key definitions, such as what makes a performance a public one.
Furthermore, to be copyrighted, a work must be fixed into a "tangible medium." That is not the case for a live broadcast (although it might be for an after-the-fact replay).
Actually, they are routinely fixed simultaneously with the transmission.
The telecast is licensed for "private home viewing"
No, it's not, actually. Copyright law doesn't give any rights to the copyright holder with regard to private performances, so the copyright holder has nothing to license. In fact, even if he claimed that you couldn't watch the show privately on the basis of copyright law, you still could.
Only public performances fall under the ambit of copyright law.
Hell playing the radio in a Dr's office is technically infringing!
No, that would probably fall quite nicely into the 17 USC 110(5) "homestyle" exception.
So that for example GPL developers have to register all their code if they don't want Microsoft and Apple to take it for free?
Yes.
I think that's a very poor idea that leaves the little guy fairly defenseless while organizations will have copyright lawyers just like patent lawyers that'll register anything just in case.
No.
First, they cannot copyright someone else's work. Copyrights can only be granted to the author -- the person who originates the work. If a work is copied, the copyist is not the author. This is why if you photograph the Mona Lisa and make a slavish reproduction of it, that photograph is not copyrightable. Further, even if you did add some creative element in the photograph, only that element would be copyrightable, and not the portion that was copied.
Second, copyright only deals with originality, not novelty. If you write a piece of code that by sheer coincidence is identical to someone else's code, then it is not an infringement. It's only an infringement if you copied yours from theirs. In an environment such as computer software, similarities are expected and not a big deal. Cf. movies, where there are fewer outside considerations (such as efficient algorithms, standardized formatting styles, etc.) to contend with.
Third, copyright only deals with expressions of ideas, not with the underlying ideas themselves. Anyone can copy someone else's algorithms, so far as copyright is concerned (patents may play a factor, however) so long as they don't copy the way that it is expressed. And see point two above with regard to similarity of expression.
So you really don't have to worry about someone else taking your code and then attacking you with it. The worst that could happen would be that they could freely use it, and anyone else could too, even if it involved copying that snippet of code from the second party. Nor do you have to worry about infringing their rights any more than you do now.
More importantly, though, they won't bother to register absolutely everything. While the burden should be minimal, there should still be a slight burden so that copyright isn't abused in roughly the manner you fear. Ideally, copyright should only be sought out and granted where it is a necessary incentive for the author to have created that work. Trying to copyright too much will, hopefully, be beyond the ability of even a large developer.
Additionally, another reform which I would like to see would be for authors who wish to copyright software to have to deposit a complete copy of the source code, along with such additional notes, comments, technical information, etc. as is necessary for a person skilled in the field to make full use of the code, with the Library of Congress. Trade secrets for copyrighted software would be impossible, just as is the case for patents. The code would not be open source -- you could learn from it, but not copy it, during the copyright term -- but this would probably not be a big deal. Further, the copyright terms for software should probably be quite short, since there's little point in decades-old software being the newest thing to enter the public domain. And any kind of work which was DRMed by or with the authorization of the copyright holder would immediately enter the public domain.
I suppose that it is possible that the OSS movement would diminish to some extent. However, I think that it would be because it would not be as important to have anymore as a bulwark against closed software. Frankly, I think it would be worth it if you look at the big picture. And if you don't, then how are you really any different than a movie studio that simply wants to preserve its way of life regardless of the effects it has on everyone else?
If it's truly a great book, in true free market fashion, people will be prepared to pay a higher price, including dealing with IP restrictions.
If it's a truly free market, then there is no artificially imposed scarcity of commodities. If the market is free, then anyone can copy and sell the book. The solution for the author then, is to take his ball and go home. Perhaps the public is fine with that, however, if the price he demanded was too high.
Copyright is a bribe to the author to get him to do what the public wants. It's a means of exploitation to serve the public self-interest by appealing to the author's self-interest. It's not the kind of thing that you see in a free market. A municipal utility monopoly is a similar beast.
Allowing the option to opt out of copyright is really the most tried-and-true method of finding a sweet spot between production and consumer rights.
No it's not. The US had an opt in system since our first copyright laws all the way to 1978. It is extremely tried-and-true. The current system is the aberration here. It places the decision in the hands of the author, as he is the person best suited to decide whether he wants a copyright, but defaults to the side of the public if the author fails to act entirely, further encouraging the author to take an interest in his own affairs.
It's certainly more trivial than registering for a copyright would be.
I'm not trying to find the system that requires the least effort by the author, I'm trying to find the system that encourages the creation of works where that encouragement is necessary, doesn't waste resources superfluously encouraging works that would be created anyway, and which has works enter the public domain as soon as possible, with as little copyright prior to then.
When an author is willing to create a work for free, we should be willing to allow him to do so. Such an author is already ignoring copyright. An opt out system means that the author who doesn't care about copyright also doesn't care about not having a copyright, and so the public is saddled with the cost of giving him something he doesn't want.
It is better for the authors who want a copyright to identify themselves, since they have an interest in doing so. We don't want it to be hard for them to step forward, but we do want to know specifically who needs a copyright, and who doesn't. This way works. Your way doesn't work, as is seen by how few public domain dedications there have been since 1978. It's demonstrable; you really can't argue with it.
Plus, it's significantly cheaper to enable copyright by default than to maintain a database of all the copyrighted works out there.
Wrong. First, there would be far, far fewer copyrighted works, since authors don't care about copyrights for most of their works. (E.g. in an opt-in system I bet that you would not bother to copyright your Slashdot posts; they're probably not important enough to you, and you would've posted anyway, making it appropriate for them to be in the public domain) Second, such a database is not difficult to maintain. The Copyright Office already keeps these sorts of records, and has done since long before they had the advantage of computers. Modern technology would make quick work of it. Third, such a database is absolutely necessary! Without records, you can't know whether a work is copyrighted or not, and if copyrighted, who holds the rights, and for how long. This means that many works that are in the public domain are still untouchable because no one can be certain. Doubt results in tremendous waste, and this is known as the orphan works problem. You would certainly never suggest that we burn our land title records, or bank records, or vehicle registration records. Without them, the transactional costs in their respective fields would skyrocket and we'd all be worse off. Copyright records are essential for copyright to best serve the public interest.
That's true, but on the same token, we don't have to
25 years is plenty of time to exploit a work before it becomes public domain.
Well, in fact, I propose terms of 1-5 years each, which the copyright holder can renew if he chooses. Some classes of work age more rapidly, and could have fewer renewals, thus limiting their maximum possible term length. I'm mainly thinking of software here, though the canonical example of a quick-aging work is a newspaper, which you can sell in the morning, and is fishwrap by evening.
What I object to is the idea that every digital thing that gets created should immediately be free to anyone who wants it. If that's the author's intention, fine, and in the real world, there's no way to prevent it. All I'm saying is that a freeloader mentality from listeners and viewers will ultimately impede the creation of new work.
I agree with you, but I still think it's a good idea. Remember, there is a tradeoff. More freedom with regard to works during their term, and shorter terms, is just as important as encouraging the creation of those works to begin with. The trick is that their relationship isn't all that proportional. A one year copyright term would represent very little impairment of freedom, but would have a tremendous incentivizing effect upon authors, since even one year is better than none. Adding ninety-nine more years, however, doesn't result in ninety-nine times as many works created.
What I am suggesting is merely recognizing that most people will pirate works and not find it objectionable. Lacking a good reason to go against this, the law should abide by societal norms and legalize this. Banning it clearly hasn't worked, and only has resulted in disrespect for the law, and legal peril for people who behave in a socially acceptable, yet unlawful fashion.
I think it will reduce incentives of some works, but it won't eliminate them entirely. Remember, the exception is only for natural persons -- not businesses or other organizations -- and only where acting non-commercially -- so no money or other things of value (aside from the works themselves) can be involved. Copyright wouldn't stop people from sharing copies of the music on the net (provided that it was stringently non-commercial, so no ads on the site, no upload quotas, etc.) but would stop the song from being covered, or played on the radio, or synched to a video, or copies sold (for people who didn't choose to pirate; there'll be plenty) without copyright being brought in.
Even if some works aren't created, well, we may nevertheless be better off given the additional freedom we would have for those works that are. It's not hard to see how: I would never sculpt the moon into a work of art unless I had a perpetual copyright in which everyone had to pay me whenever the moon was visible in the sky, or they mentioned the moon, or thought of it, etc. It would be a great sculpture, but is it worth the cost? So far, the answer seems to be no.
There's nothing in copyright law that prevents competition from other copyrighted works
Yes, but one copy of a work contains the same work as another copy. Thus, copies of the same work are commodities. In a free market, many publishers would print copies of the same book, each trying to compete against one another, resulting in lower prices, multiple sources, etc. all of which benefit the reader. With copyrights, only the publisher chosen by the author may print that specific work, and can command any price he sees fit. It may or may not sell, but other works are not necessarily a substitute for that work, as any avid reader knows.
There's nothing in copyright law that mandates copyright be applied to every work despite the artist's wishes.
Of course, this could be improved dramatically, by restoring copyright to an opt-in system, rather than an opt-out system. Right now authors who don't want copyrights but cannot be bothered to put their works in the public domain wind up holding copyrights that they don't want and which nevertheless burden the public. Better would be to require authors who do want copyrights to register in order to get them, as we can expect them to jump over a trivial hurdle. This more neatly aligns the interests of authors and the public, and is how we've traditionally done things to boot, so we know it works!
All copyright does, in terms of the free market, is tie the value of the product to its distribution restrictions.
It does more than that, and it largely removes the work from the free market in the process.
If we were to completely stop buying restricted media, do you really think that business model could survive?
If we were to reduce the restrictions, we wouldn't have to stop, and we could still change the business model. Given that copyright exists to serve the public interest, I see no reason for the public to have to bother with a boycott, when copyright is a legislative creation and thus quite easy to change legislatively, given a democratic society.
Used bookstores deal in the reselling of physical property where the rights to that physical copy have already been transferred legally from the copyright holder to the purchaser. How this is analogous to the topic at hand eludes me.
This is not necessarily true; first sale applies to any lawfully made copy, regardless of whether or not that copy was made authorizedly. A copy that was made pursuant to fair use could be sold without the copyright holder having been involved.
At any rate, the objection made earlier had been that someone other than the copyright holder was profiting from the transaction and the copyright holder was not. This is true for the used bookstore as well. Either both must be offensive or there is a problem with the earlier complaint.
The Disney film(s) are not simply a verbatim copy of the fairy tale with "Disney's" put in front of the title.
They could be. I've bought copies of Shakespeare's plays before, and I damn well expect them to be verbatim copies. I'm not paying the Lamb's book.
Again though, this was merely an example of the flaw in the argument from the earlier post.
I am against basing a business on copyright infringement, is that clearer? The 'who' is not important, if this condition is satisfied, I am against it.
Okay. A follow-up question: do you think that copyright laws are currently perfect, or do you think that the laws should be changed. Could at least one of these changes involve reducing the length or scope of protection such that a business operating under the new laws would infringe if the current laws remained in effect?
First, by making the work of others available for free when the contributors to that work demand a specific sum for that work, they diminish the incentive of the creators themselves to create. Since creating something costs "something", and TPB offers it for near zero, the creator cannot compete in price.
I might quibble with the wording, but I basically agree with you there.
Second, TPB basically shuts out any possible competition from the creators themselves in the form of launching their own site similar to TPB, since by virtue of their position as creators, their cost of production will always be higher than TPB's because they must face the cost of creating in addition to providing the services TPB does, and will have difficulty competing in terms of value because of the what I mentioned earlier. Because the cost of creating is so much higher than the cost of providing services similar to TPBs, this closes the only other avenue the creator has available to him to market his good.
Well, I disagree there. There is no technology that pirates can use which publishers cannot. Further, due to economies of scale, publishers usually have the technological advantage available to them, should they wish to take it. For example, a CD made in a CD factory is cheaper to manufacture than a CDR burned by a downloader. The issue is simply that the publishers are not willing to use the same P2P technologies since they can't figure out how to make money at it. They could easily launch a functionally identical website tomorrow, if they chose, but they'd just be giving away their goods.
So I think you're really just restating the first issue. This isn't really a separate problem.
But let's say that you're correct (as I think that you are) and that widespread piracy amongst consumers results in a reduced incentive for authors to create works, and so fewer works are created.
So? The objective of copyright is to have as many works as possible created and published, which otherwise would not have been, and for those works to enter the public domain as rapidly as possible, and to be restricted as little as possible until then. Trading off fewer works for more freedom is an entirely appropriate bargain. The only issue is whether the public benefit is greater having done this, or having not.
I'm getting tired of writing so I'll just say the
You're looking at the problem in the wrong way, I'm afraid. Copyright law is more interested in where you got the numbers (and function) from, rather than merely what they are. I would suggest reading the excellent essay here which gets into this.
Remember that copyright is a state granted monopoly over a commodity good meant to advance a social purpose. I don't see much room for the free market there. A free market would seem to demand the abolition of copyright.
In any event, copyright needs to be reformed from top to bottom. Term limits are not the only problem, in fact, I wouldn't even consider them to the be most important problem. Your suggestion is pretty silly, IMO.
Yes, but you're only looking at half the picture so far.
Remember, if the artist wants a copyright on his artwork, then he has to convince society to give it to him; just claiming one when everyone ignores you is an exercise in impotence. It's the same as declaring yourself Emperor of Asia if you cannot personally back up your assertion. Just as the artist is under no obligation to create or publish his art if people don't pay him, society is under no obligation to give the artist a copyright if the artist doesn't pay society (by, e.g. publishing the art which will relatively promptly enter the public domain so that everyone can stop paying the artist and still get to keep the art).
If society is grants copyrights excessively (e.g. too-long terms, too many rights, etc.) then it harms society and is much like your situation A. If they don't grant enough, then while it may not harm society, it fails to help as much as it could. The trick is to find the right set of laws that helps society the most. Whether or not the artist likes this the most is not really important, since if he didn't, it would necessarily be against the interests of the entire rest of the world to satisfy him. It would be pretty silly to place him above everyone else.
Weirdly, though, that's pretty much where we now find ourselves.
What if we're willing to tolerate a reduced volume and quality of work since we regard what we get in exchange (no copyrights, apparently) to be of greater value? Just because it's a big piece of a small pie, that doesn't necessarily mean you're better off with a small piece of a big pie.
I'd be perfectly happy to shrink copyright terms to no more than 20-25 years, perhaps less, eliminate copyright on some classes of work (e.g. architecture), require strict formalities such as registration and deposit, and make it legal for natural persons to do whatever they like with works, so long as they act non-commercially. Would the number of works and their quality decline? Maybe a little bit, but I don't think it would go down very far, and we would have gained a lot of freedom that more than makes up for it.
This is the heart of the issue, TPB is profiting off of works they did not help make possible. Not only that, but they give ZERO to the people that DO make them possible. This is shameful and disgusting. I hope they and every site like it is shut down and their founders imprisoned.
You mean like used bookstores, which is an example of a for-profit business that makes money reselling books that the store owner didn't write, and which doesn't pay a cent to the copyright holder? Or how Disney profits when they make a movie based on public domain fairy tales that they didn't write and don't pay to use? You're against them too, I take it?
Merely profiting off of a work someone else created and not paying that person is not necessarily shameful, disgusting, or illegal. I'm not a big fan of TPB either, but I caution you against tarring with too broad a brush. You should not only be more precise as to who you are against and who you aren't, but you should also give a reason and an explanation as to why that's a good reason.
I'd like to point out a significant technical/legal quibble. AFAIK, there are only two ways that they *could* prove "unlawful downloading".
Oh, there are other ways it could be done. A convenient one would involve finding someone who was caught for uploading but turned out to be easier to sue for downloading once it was determined that he had mainly done that. After all, you don't have to sue someone for every kind of infringement they engage in. Or they could just've admitted it, or been turned in by someone else, or shown up prominently in logs that the plaintiff managed to acquire from someone else (e.g. a torrent site).
You're right, though; it's usually pointless from a tactical perspective to sue mere downloaders (there are better people to sue first), and impractical as well. Most cases involving mere downloaders usually involve the downloaders as direct infringers upon whom secondary liability for someone else is hung. E.g. Napster was liable for helping downloaders to infringe, which required that downloading be infringing to begin with.
Well, I'm a lawyer who specializes in US copyright, and you're wrong. Copyright deals with distribution, but it also deals with several other rights, including reproduction, which is what a downloader does. There's really no argument that downloaders are not infringers. But they're smaller fish and harder to find than uploaders are (who are in turn smaller than certain developers, e.g. Napster, Grokster, or service providers), which means that since RIAA, MPAA et al like to get the most bang for their buck and have limited resources, they prefer to target uploaders over downloaders. They could sue downloaders, it's just inefficient, so they don't.
If you'd like to read the relevant part of the US law, it is at 17 USC 106.
Just their name? A fact. Their address? Another fact. Together? Creative.
No, not really. Compilations of facts are only copyrightable when the compilation itself is original. There's nothing original about putting your name along with your address on a business letter.
You done wrong (a fact)*, what you can do about it (a fact)* and what'll happen if you don't (a fact)* copyrightable when combined?
It is the wording, not the underlying message.
If Leonardo Da Vinci rose from the dead, and painted a masterpiece which was actually allegorical and conveyed all the same information in the C&D letter, then it too would be copyrightable. Copyrights deal with expressions of ideas, not the ideas themselves.
Boy meets girl is an idea. Romeo and Juliet is an expression.
Essentially, you're asking why we should permit works to be copyrighted if they are unpublished. I share your concern. I think that among other aspects of the long-needed complete reform of copyright, we need to only permit published works to be copyrighted, although I would say that mere deposit in the Library of Congress would qualify as publication. Likewise, public performances should be considered publication (since the publication date is key to setting the copyright term). A lesser form of copyright would be available for works which were unpublished but which were intended for publication (e.g. manuscripts still in progress) provided that some proof has to be shown indicating the intent (similar to what you might see in an interference proceeding) and there is a time limit, to discourage the idea of sitting on these materials, or of later persons publishing what are, honestly, public domain materials.
I'd tell the judge that since this ruling is copyrighted too
No, it's not. US government works, such as opinions issued by federal courts, are uncopyrightable. See 17 USC 105. It would be nice if this were applied to all governmental entities, etc. None of them need the incentive of copyright, and it's an embarrassment to the public to have their governments assert such rights over them.
Well, the UCC is written to trump first-sale rights and such, partly based on their success with EULAs to date. That in mind, it is the only issue.
Well, it's more that first sale is weak and permits first sale to be contracted away. UCC Art. 2 doesn't mean to trump first sale, and indeed, whether it does or not depends entirely on how you interpret it. ProCD and Klocek differ in their interpretations of a single section, and thus reach entirely opposite conclusions as to the enforceability of EULAs.
But I expect the EULA provisions of the UCC(UCITA?) are going to be struck down because it flies in the face of hundreds of years of the most fundamental precedent - that contracts must be up front, fully visible, understood, and agreed on by both parties to be binding.
First, no, that wouldn't be grounds for overturning UCITA; statutes trump the common law. Second, UCITA was enacted in only two states, while several other states enacted anti-UCITA laws to shield their citizens from it. It's pretty dead.
No actually, I am buying the license to listen to a particular copyrighted work
Well, that's certainly not how it works in the US, anyway. US copyright law does not cover mere listening to a copyrighted work. Since the copyright holder never has the right to control mere listening, he has no power to issue a license, nor is one required. The closest it comes is that copyright does include public performances (sometimes), and so if you were going to play the CD for a paying audience in a concert hall or something, then you might need some sort of license.
You can see the main rights that together, comprise copyright at 17 USC 106. Non-public performances -- i.e. listening to a CD you bought -- are not included.
Buying something purported to be such a license would be as foolish as buying the Brooklyn Bridge. Of course, I've never heard of any of the record labels even claiming such a thing for ordinary retail CDs, so I'd be surprised if the opportunity would arise in the first place.
Hoist by your own petard, I'm afraid.
First, copyright deals with both the reproduction of works as well as the distribution of works, among other things. From 17 USC 106:
Second, of course, since fair use is a defense to copyright infringement, you would only need to assert that your copying was a fair use if it was prima facie infringing. Acts which are totally noninfringing aren't fair use, because they don't need to be. It's akin to how you don't need to argue that you attacked someone in self-defense when you didn't attack anyone to begin with.
But first we must decide if copying is indeed "theft" or not. Since theft is indeed an ethical issue.
Infringement isn't theft. Also, theft is not an ethical issue; property law is just as utilitarian as copyright law is, though it's a bit murkier as it developed in a more organic fashion over a longer period of time. There can be ethically-founded arguments to justify theft, I suppose.
Then we must decide if following laws are an ethical proposition, or if the principle behind the law takes precedence in our ethical system.
I'd put the ethics first, generally, but with every attempt made to ensure that the laws conform to our ethics so as to reduce the danger of a conflict between ethics and the law. Some laws won't have an ethical component anyway (e.g. zoning laws, jaywalking, copyright) so they're pretty easy to mold the way we want, but also can more easily get out of control as there's no sort of built-in governor or sanity check, as it were.
True, fair use does care about how much of the work was unauthorizedly used and how important those portions were to the work. It's not determinative, however. Sometimes it is fair use even when you copy all or a substantial part of the work, and sometimes it is not fair use where you use only excerpts.
Well, it is true that software ordinarily doesn't need to be licensed; it's entirely possible to buy and sell software just like a book, and for it to be useful. You don't need licenses to permit software to be run, or installed, or backed up, by the person who buys a copy (e.g. a generic user who buys retail).
As for whether or not software licenses are applicable in the US when the developer purports they are, that's a a different issue. I suggest reading two cases on the subject: ProCD v. Zeidenberg (in which you can either agree to the license or return the software for your money back, but not disagree and use the software except in supposedly unusual circumstances), and Klocek v. Gateway (in which the buyer is perfectly free to reject the license and keep and use the software). The ProCD side is winning, but it's not over yet.
In any event, it's really more of a UCC issue, regarding contracts and the sales of goods, rather than a copyright issue. Copyright law likely doesn't preempt state sales law on this question, so it really doesn't matter too much.