Fair use is all about using things for purposes of critique
No, it's meant to cure situations where copyright is used in a manner that is contrary to the policies underlying copyright. A 'critique' theory wouldn't suffice to explain, say, time-shifting.
When I distribute something, I need copies. Now if the person I am giving it to makes the copies, then I am not copying it and hence cannot distribute it illegally.
Personally, I would agree with you; the statute is clear that distribution is something that can only occur with regard to tangible objects. However, the courts have yet to correct their mistake here (in no small part because no one's made much of an effort to raise it). Not that this would change much, though, as it would just shift the analysis to one of public performance or display.
Anyway, though, following the existing precedents, it is possible for there to be distribution via a computer network where Alice has a copy, allows Bob to read that data, and Bob then creates a second copy. The Napster court was quite clear about this, and it's far from the only one.
They don't have an absolute right, the first sale and fair use principles limit the scope of that.
While fair use could apply in a generic file sharing situation, it likely wouldn't if you run through the analysis; the first three factors are against it to begin with, and the fourth is probably against it as well. First sale, meanwhile, only applies to the possession of lawfully made copies. You can sell or rent or lend or give away a lawfully made copy of a book, but it does not permit you to put the book on the Internet; that has nothing to do with you alienating that specific copy of the book.
When downloading something, you are transferring possession
No, because it is impossible to transfer anything over the Internet. Computers work by copying. When I install a program onto my computer from a disk, a new copy is made. When I run that program, it is copied into RAM, and parts of it are copied into the processor's own registers, cache, etc. If I have virtual memory, then another copy is being made there.
MAI v. Peak is the leading case on this subject. Basically, whenever anything at all is interacting with a computer, you can rely on copies being made, and those copies probably infringing. The statute is just written very poorly in this regard. It needs to be fixed, but until then, you're screwed.
To date no one has been sued or arrested for downloading only. It is only the people distributing it. Why is that when you are so sure? Because you are wrong, that's why.
I remember when no one was being sued for uploading; it wasn't that long ago.
The reason that there aren't currently suits against people who only downloaded is not legal, it's tactical: they're difficult to track down! Uploaders, OTOH, advertise their presence, and are thus easier to catch. Additionally, it is more efficient to go for the head of the snake, as it were. This is why the first suits were against the developers of the software and maintainers of networks, trackers, etc. Then we began to see suits against uploaders. The idea was that if Napster -- a single target -- could be taken down, users would lack the ability to pirate so much, and so it would be like getting a bunch of additional victories for free. If you go after an uploader, then it has a similar but lesser effect; other uploaders are either frightened into stopping or swamped with traffic, and either way, there's less of an opportunity for the more numerous downloaders to do anything. But if you just sue a downloader, it doesn't take out anyone else as well, making them the least valuable target to pursue.
Legally, though, it's easy as pie. RIAA, MPAA, et al have not had to exert themselves, you know. It's probably futile, but it's not difficult for them to win these cases.
If an ordinary person, not the kind or queen you want to make them, represents themselves as having the ability to copy and distribute something, then they are breaking the law not you when you receive it. Do you understand how that works? If the store selling illegal copies of music sells you something, the store broke the law, not you.
So? That's as meaningful as if I declared myself King of the Moon.
The copyright holder has the exclusive right of reproduction. He can make more copies of the work, and he can authorize others to make more copies of the work. Otherwise, you cannot lawfully make more copies of the work for the duration of the copyright unless there is an applicable exception elsewhere in the law.
An ordinary person who merely possesses a copy of the work, however, cannot authorize anything with regard to the copyright (again, barring any applicable exception). His powers merely extend to the specific, tangible copy he possesses.
You see, If I have something that is copyrighted, I can transfer that to someone else.
Let's clean that up a bit: if you have a copy of a copyrighted work, you can (normally) convey that copy to someone else. The details are mainly in 17 USC 106 and 109. For example -- and remembering that the law defines a copy as a tangible object -- if you have a copy of a lawfully made Stephen King book, you can give that book to me. OTOH, if you cannot make a new copy and give that copy to me, since you're not allowed to make new copies, and you're not allowed to convey unlawfully made copies.
If I transfer it to you, I have to get rid of all the copies I have.
No, that is untrue. If you are giving me a copy, then necessarily, you're losing ownership, and probably possession, of that copy. But if you have two copies of the book, then you can just give me one, and keep the other. The issue is merely that if you're giving away a copy -- a specific tangible object in which the work is fixed -- then that copy gets given away.
I think that the thing you are failing to understand is that whenever the law uses the word 'copy' it means an object you can touch, and probably hold in your hand. The law clearly defines, at 17 USC 101, a copy as being a material object in which a work is fixed.
So a blank notebook is not a copy. When words are fixed into it, it becomes a copy. A paperback is a copy; the story within is a work. A CD is a copy; the music and sound recording within is a work. A DVD is a copy; the audiovisual content within is a work. A computer's RAM or hard drive is a copy; the data stored within is a work.
Feel free to take a look at the law, but there is really no arguing this. That's how it is. The way that people informally call things copies is utterly irrelevant; only the legal definition matters for purposes of copyright law.
Downloading isn't copying for the person who is downloading. It is for the person that offered the transfer.
Wrong.
The law prohibits making a copy. If I download from you, I obviously am not receiving a copy; a tangible object such as a memory chip or disk cannot move across the Internet. Rather, your computer is reading out information to my computer, and my computer is writing it down, thereby creating a new copy. In other words, if there is a tangible object which, at time 0, did not contain a work, and at time 1, did contain a work, then that object has become a new copy.
What the law doesn't care about in the least little bit is the grand total of copies created. If Alice puts a lawfully made CD in her computer, then reads out the contents to Bob's computer, and Bob's computer faithfully writes down that information onto a disk, then Bob has created a new copy. If Alice disintegrates her CD, it still doesn't matter; what is illegal is making new copies, not adding to the number of copies in existence, and Bob did make a new copy.
Nor can you dispute who is responsible for what, once you agree -- as you must -- that an infringing copy has been made.
If someone is providing data for you to download, and you choose to download it, then you are the person making a new copy. No one forced your computer to do it against your will; you initiated the process and caused it to happen. The courts have never had an
Because ownership of music is often complicated, the record label may not have (or be granted) the necessary rights to publish a kick-ass compilation.
It's true. Plenty of labels have failed to include a kick-ass clause in their contracts with the performers. But I imagine that, like the aftermath of Tasini, such clauses will increasingly become standard.
IT is all with copying and distributing. And no, when someone offers something to you, you aren't copying it illegally when downloading it.
Yes you are, if it's not the copyright holder or someone authorized by him, who is permitting it. Downloaders infringe by reproducing works in copies, uploaders infringe by distributing (well, really by publicly performing or displaying, but this relatively minor technical issue hasn't been corrected yet, and usually doesn't matter).
International law is irrelevant; all that would matter here would be US copyright law, which governs what occurs in the US. (The Antiguans fall under Antiguan law, which would protect them in this matter, but not you)
Copyright applies to a number of different activities, but the two that are relevant here are reproduction and public distribution. Reproduction is the creation of a copy, and public distribution is the transfer of ownership or possession of a copy to members of the public. The key thing is that a copy is defined in the law as a tangible object in which a work is fixed. So, for example, if you create a poem and speak it aloud, but never write it down, it is not fixed, and there are no copies of it. If you write it down, the object upon which it is written is the copy (e.g. a piece of paper, or a computer disk).
When you download something, obviously, no tangible copies are coming down the wire. So clearly, no new copies that you receive are being made in Antigua. Only intangible information is. However, you are necessarily storing the downloaded data onto some sort of tangible medium, such RAM or a disk; thus, you're creating a new copy, i.e. reproducing. Furthermore, you're doing this in the US, where US law, rather than Antiguan law, applies. If US law says that you, a person in the US, cannot reproduce the work into a new copy in the US, then that's what you're stuck with; it doesn't matter what some foreign government says, since they cannot regulate what occurs here.
Now, if copies were made in Antigua (e.g. burned onto a CDR) and the copies were physically transported into the US (e.g. via the mail), then that would be importation, which is a kind of distribution. However, US law would prohibit that importation as an infringement of the US copyright holder's exclusive right to distribute in the US. There are some exceptions: e.g. if they had been made in the US, shipped to Antigua, and were now shipped back, that would be lawful; if they were made in Antigua in a manner that would have been lawful had US law applied there (i.e. if it was done with the permission of the US copyright holder) and you only imported one copy at a time for your own personal use and not for resale. (Most people forget that both 602(a) AND 602(b) apply, and that 602(a) exceptions don't affect the 602(b) prohibition!)
The ultimate result is that this is great if you are physically in Antigua, but otherwise basically irrelevant.
Nope, that's an invalid argument. A couple of centuries ago, it was a "local custom" to burn witches in this same state.
No, first, it was about three centuries ago, not two. Second, they were usually hanged; I don't think that any witches in Massachusetts were ever burned. Third, it's not a state, it's a commonwealth (though that didn't happen until well after the era of witch trials; for example, during the Salem witch trials, it was a province).
Also, IIRC, you can buy wine on Sunday afternoons. I've never really cared enough to look into it.
Meh. My understanding of this is that Antigua would merely be relieved of its obligations to the US pursuant to TRIPS et al up to the limit awarded.
Remember, copyright is a national system, not an international one. There is no such thing as an international copyright. Rather, there are US copyrights, UK copyrights, Canadian copyrights, etc. Most countries are members of various treaties that state that when one member grants a copyright, the other members will also grant a copyright to the same applicant. So if Alice, an American, writes a book, she has a US copyright that applies within the US, and also (among other things) an Antiguan copyright that applies in Antigua.
Antigua no longer has to grant or respect US copyrights per this award, but that doesn't mean that US copyrights on those works don't still apply within the US! So if Alice is in the US, and Bob is in Antigua, Bob's government is letting him make all the copies of music he likes, and distribute them as he likes (again, up to the limits of the agreement). But Alice, in the US, is subject to US law, not Antiguan law. She can't download anything from Bob, since that would involve creating a copy in the US (copies, remember, are defined in the law as tangible objects in which the work has been fixed, and importation involves the moving of those tangible objects across borders; since Alice can't download a tangible object, when she downloads, she actually creates a new one: the medium she's writing to) which would still be illegal.
So if you want to benefit from this, you're going to need to go to Antigua. Otherwise it's pretty uninteresting.
The author of the interstate commerce clause could have never envisioned e-commerce.
E-commerce is not fundamentally different. There was nothing preventing a person in 1787 from writing a letter to a bookstore on the Amazon, asking whether they had a copy of 'Common Sense'; getting a response in the affirmative; writing another letter saying that you want to buy it using a valid payment method and have it shipped to you; and having that occur.
That would inarguably be foreign commerce, and be subject to regulation by Congress.
You really can't just say this and have us accept it without any justifying arguements.
It's always seemed pretty self-evident to me.
But for starters, transportation is inherently inefficient in terms of time and money. Ideally, your home, your place of work, all the people you want to meet, all the cultural activities you want to engage in, and all the goods and services you want to use, would be right at your fingertips, all the time. The next best thing is for them to be only a very short distance away, so that you can get to them (or have them come to you) quickly and cheaply. Since it is also more efficient for shareable resources to be shared (e.g. it's better to have one centrally located store for many customers than one store per customer at the customer's current location) you'll want densely populated areas to place these things.
For example, I live in a city; I don't need a car and so I don't own one, as it would merely be a waste of money to maintain, store, and keep registered and insured. Yet most of the things I need or enjoy (e.g. groceries, libraries, hospitals) are within only a few minutes' walk. Because I live along a transit line, I can swiftly, cheaply, and efficiently go from place to place in my city. I happen to live in a different part of the city than where I work. Of course, this isn't true of everyone. Still, I get to work a lot faster than if I drove, I don't have to look for parking (and most likely pay for it), and I can spend the short commuting time I do have in more interesting pursuits than crawling through traffic. I could take a cab, but that would be even more expensive.
Really, the only way that cities wouldn't be the ideal would be if we could teleport cheaply to anyplace (e.g. Larry Niven's Flash crowd or Dan Simmons' Hyperion).
OTOH, it sucks having everything far apart; it takes a long time, and more money in order to go anywhere to do anything. Further, you can't use mass transit, which is quite efficient, but have to move everyone individually. Providing resources is also costly; rural mail and electrification cost a lot due to the long distances involved. Sometimes it's unavoidable; as I said, I don't have any complaints about people who live in the middle of nowhere because they must (farmers, mainly, as well as some people who provide services for them, such as a small-town doctor). I do, however, have little good to say about people who don't need to live far out, and who, in fact, try to make country-to-city commutes frequently.
Read some Jefferson if you want some thoughtful exploration of the evils of large cities.
IIRC his biggest complaint, other than that they had different attitudes from Virginia gentry farmers, was that they were unhygenic. I'd say that that would be true of late 18th and early 19th century cities. In the early 21st century, we seem to have that problem pretty well taken care of.
High density cities are not the 'norm'
Traditionally, they are. Cities have generally been small in area and densely packed. It wasn't practical to have a spread-out city for several reasons and poor transportation infrastructure for food, fuel, and water, tended to keep most of the population in the country... often supplying resources to cities. Cities started to take off with the invention of the locomotive, and really took off with the use of steel structural members for buildings, which raised the density ceiling immensely. (Our main problem now is vertical transportation; it's tricky to balance the number of elevators you have with usable area per floor. I suspect that the answer will be in interconnecting buildings at height to remove the bottleneck of everyone having to go to the ground floor all the time)
We are not honeybees, who crowd into hives. Human culture can spread out.
The real question is whether it can sustainably do so. I'd prefer for human civilization to endure rather than to burn itself out. We certainly cannot keep living as we do, so something's going to have to give.
Urban density is a good thing. But if you really do want to lie in the wide-open countryside, you can do that too: just become a farmer, rather than some schmuck who wastes time and increasingly precious and so-far irreplaceable energy resources commuting a hundred miles a day.
Really, the idea that cities would not be dense, or that commutes would even be possible, is a quite recent aberration, and evidently not a sustainable one.
Make this rule apply to all government, top to bottom, every worker there, elected, hired, appointed, it doesn't matter. No more lifelong careers in government.
Well, that would certainly have interesting effects on the military. Privates would be the guys who had just started, and generals would be the guys who had been there ten years.
Actually, some copyright infringement has been criminalized since 1897.
Here's what it consisted of: (I have put the relevant bits in bold)
An amendatory act relating to the remedies for unauthorized public performance of dramatic and musical compositions
AN ACT to amend title sixty, chapter three, of the Revised Statutes relating to copyrights. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section forty-nine hundred and sixty-six of the Revised Statutes be, and the same is hereby, amended so as to read as follows:
''SEC. 4966. Any person publicly performing or representing any dramatic or musical composition for which a copyright has been obtained, without the consent of the proprietor of said dramatic or musical composition, or his heirs or assigns, shall be liable for damages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first and fifty dollars for every subsequent performance, as to the court shall appear to be just. If the unlawful performance and representation be willful and for profit, such person or persons shall be guilty of a misdemeanor and upon conviction be imprisoned for a period not exceeding one year. Any injunction that may be granted upon hearing after notice to the defendant by any circuit court of the United States, or by a judge thereof, restraining and enjoining the performance or representation of any such dramatic or musical composition may be served on the parties against whom such injunction may be granted anywhere in the United States, and shall be operative and may be enforced by proceedings to punish for contempt or otherwise by any other circuit court or judge in the United States; but the defendants in said action, or any or either of them, may make a motion in any other circuit in which he or they may be engaged in performing or representing said dramatic or musical composition to dissolve or set aside the said injunction upon such reasonable notice to the plaintiff as the circuit court or the judge before whom said motion shall be made shall deem proper; service of said motion to be made on the plaintiff in person or on his attorneys in the action. The circuit courts or judges thereof shall have jurisdiction to enforce said injunction and to hear and determine a motion to dissolve the same, as herein provided, as fully as if the action were pending or brought in the circuit in which said motion is made.''
''The clerk of the court, or judge granting the injunction, shall, when required to do so by the court hearing the application to dissolve or enforce said injunction, transmit without delay to said court a certified copy of all the papers on which the said injunction was granted that are on file in his office.''
[29 Stat. 481 (Jan. 6, 1897)]
Now it is worth noting that back then, not all infringements were criminal; nor has this ever been the case, and it even won't be under the recent bill. But the penalties have expanded over the years, and what constitutes criminal infringement has expanded as well.
Quotations, satire, criticism etc. were among the exceptions that I was referring to as others we weren't discussing at the moment, mainly because they are generally fragments of a copyrighted work that are included in another work, so even without the fair use provisions, they would fall under the category of derivative works rather than being the actual copies that are the subject of the discussion.
Quotations are actual copies, not derivatives. It doesn't matter that the portion copied and reprinted is only a small part of both works. Satire involves the derivative right, though. Criticism... depends on just what it is. Could be neither, either, or both.
Distribution is supplying copies (or broadcasting) to third parties
Broadcasting is performance or display. Distribution is supplying copies.
Every company employee or visitor to its premises counts as a party for copyright purposes because they do not normally reside at those premises, so making copies that can be read / listened to / viewed / run etc. by more than one of those parties at the same time counts as distribution, not reproduction
I disagree. Where they reside is irrelevant. Distribution has to be public in order to be actionable, but where all the natural persons involved are employees of a corporation, and the distribution occurs as a part of their job duties, then it's not public; it's private, internal to the business at hand. It is no more public for Alice to give a copy to Bob as part of their jobs, than for me to move a book from my left hand to my right.
Making the copies, OTOH, is reproduction, which has no public element to it.
17 USC 119(a)(15)(D)
Ah, buried in the bowels of section 119. I should've expected that.
I think juries will see past your 'almost infringement'.
You still don't understand.
The chief role of a jury is as the trier of fact. Various alleged facts are presented to the jury, and it decides which of those are true, and which are false. However, a jury is not a trier of law; the judge fills that role. Thus, when the parties in a lawsuit argue as to the interpretation of a law, the judge decides. The jury is not even consulted, and often isn't even aware of the argument.
For example, let's say that Alice has been killed. Bob was found standing over her body, while Carol was found in the other room with her friend Dave. The police have been spying on Carol and videotaped her killing Alice. At Carol's trial, Dave testifies on her behalf, and swears that Carol was never in the room with Alice. Bob, on the other hand, testifies against Carol, and says that he was Carol kill Alice. The jury has to decide whether they believe Bob, or Dave, or neither.
The police have a videotape that shows Carol killing Alice, which would settle the question easily. But perhaps they didn't have a warrant permitting them to make that tape. Carol will argue that the law prohibits the police from using the tape against her because it was obtained illegally. The DA will argue that the law permits the introduction of the tape as evidence. The jury, however, is deliberately left in the dark about the tape. They don't even get to know that there is a tape, or what's on it, or who made it, or that there is an argument concerning it. The judge alone hears the legal (not factual) issues involved and decides whether the tape is in or out. If it is in, then the jury gets to see the tape, but still is not told that there was an argument about whether it could be shown to them. If it is out, then neither side gets to breath a word of the tape's existence or contents to the jury.
That is the difference between the factual and legal aspects of a trial and the different parties involved in judging them.
The argument as to whether offering for distribution is in fact distribution is a legal argument, not a factual one. So no jury will ever 'see through' the argument, because no one makes the argument in front of or to the jury. The judge gets to decide without any input from the jury at all.
If a defendant wins that argument, then the only factual issue left will be whether an actual distribution (not an offering) took place. The jury will be not be asked whether a distribution could have occured, they will be asked whether they believe, based on the facts alleged to them, whether one actually occurred. And of course, if the plaintiff has no facts that could support a conclusion of actual distribution, then the trial is concluded with summary judgment, and never gets to a jury at all, since there was no real question of fact to begin with.
First, copyright law treats the unwitting dupe and the unanswerable person equally; the jury will never be asked to consider the mental state of the defendant with regard to anything other than damages (if that).
Second, where the plaintiff cannot show facts indicating actual distribution, again, the issue will not reach the jury, for there would be no facts for them to weigh. A simple summary judgment motion would end things in the defendant's favor.
It's very simple: The Copyright Act makes distribution of copies and phonorecords unlawful, and defines copies and phonorecords as tangible objects that are impossible to send over the Internet. Online distribution isn't possible. What is possible is online performance and display and reproduction, but all forms of infringement require the infringement to actually occur. An almost infringement is no infringement at all, and doesn't violate the law.
I believe personally, you put something up there for mass distribution, intent is already proven. Why should a damaged party have to prove the almost impossible.
Well, no problem there: in a civil copyright suit, there is no element of intent whatsoever. Indeed, if you act responsibly and reasonably, and there is nothing you reasonably could have done better, yet you still infringe, you are on the hook. Intent only matters for damages and criminal copyright infringement.
So the plaintiff needn't prove intent whether it is easy or difficult to do so. It's a total non-issue.
What I think that he should have to prove, however, is that there was an actual infringement, as opposed to there merely being ripe circumstances for an infringement which, for all we know, never actually occurred. Is this so difficult?
"You can even be criminally prosecuted for making 5,000 copies with no intention to distribute them (and where you never do)"
That's because fair use copying exemptions would regard 5,000 complete copies (or for that matter 50) on a small number of sites as being excessive and unnecessary for the purposes of those exemptions, i.e. archiving or backing up (note that I realise there are other types of exemptions, but we aren't currently discussing those).
First, fair use is there to enable unauthorized and otherwise-infringing fair uses. Archival uses are actually a pretty modern form of fair use; the 'original' fair use, though, dealt with quotations, back in Folsom v. Marsh. And there are other exceptions besides fair use, but I don't mind ignoring that.
Second, you may have misunderstood me; I said that you could be prosecuted for making those copies. I didn't discuss whether someone would be convicted or not, what defenses they'd have, etc.
it would be very difficult to argue that one had expended significant amounts of time and money making large numbers of copies without intending to distribute them
The statute doesn't prohibit intention to distribute; just distribution. This is, of course, a hotly contested point at the moment.
IMO the US laws are more reasonable in balancing consumer rights and those of copyright holders than those of some other countries, although I know many on Slashdot would disagree!
I agree. US copyright law is incredibly unreasonable, but it's not as bad as it is in some jurisdictions.
It's not at all iffy, because companies are by definition organisations that exist to make a profit, so any copying (internal or otherwise) falls under the "for profit" heading, and a fair number of them have been sued for either making unauthorised copies of works, or "publishing" them on internal networks, although most seem to settle out of court because it's less expensive than fighting a possibly protracted legal battle, so it's not clear whether any precedents have been set or not
Again, I think you might misunderstand me. I don't doubt that it would be infringing (I recall cases along these lines), but merely whether it would be distribution if it was purely internal. Easier to argue reproduction.
I quite clearly said that statutory royalties for _some_ compulsory licenses may be zero
I don't recall that to be the case. The royalties may be exceedingly small at times, but I don't recall any that can be zero. Could you provide a cite?
Distribution (or the obvious intent to do so, e.g. having 5,000 copies of a work in fake packaging sitting in boxes) is what will usually end up with people getting prosecuted, so I'd say there is something rather magical about them, at least in the legal sense.
No, it's just that that's easy to notice and generally not too objectionable. You can even be criminally prosecuted for making 5,000 copies with no intention to distribute them (and where you never do), or a myriad of other things. But if you never reveal to anyone else what you've done, you are simply more likely to get away with it, is all.
Certain types of what could be termed "private" distribution are also prohibited, e.g. copying for distribution within a company's premises.
Copying is reproduction, a different flavor of infringement. As for the distribution aspect of that, within an organization, it seems iffy. Certainly possible, but not open and shut.
Furthermore, the term "compulsory license" is the one Title 17 uses for those that have statutory royalties,
But you said that some compulsory licenses had no royalty, in which case I'd consider them to just be a vanilla exception, and not a license at all, barring clear language in the statute to the contrary. My objection was with your phrasing.
I guess will have to agree with you and not the courts nor jury.
First, juries don't ordinarily decide matters of law, which is what this is. In the Thomas case, the jury was instructed by the judge that making available was distribution, and was only asked to consider whether the defendant had made works available; not what that ultimately meant.
Second, this is only one court, and it is a district court at that. We have an appeals process because we know that courts may get things wrong. I think that the Roberts court screwed this up, and hopefully it will be reversed on appeal. Lord knows, courts have screwed up worse than this.
Glad to see you have it right and all the others have it wrong.
What all others? This is a hotly contested and pretty novel question. If there were good precedents, your criticism might be valid, but it's really never been determined; it's never needed to be, until now. And it's not just me saying this, either.
The comparison of 'planting a flag' and 'creating something of value' is of questionable validity.
How so? It doesn't matter what the origin of the thing being claimed is; it just matters what the effect of the claim on others who are being dispossessed by it is.
And certainly, in our society and legal history, merely creating something has never automatically translated into exclusive rights in it. If I plant a fabulous garden in front of my house, and the property value of the house next door goes up merely because it is next to my house, that doesn't mean I'm entitled to that additional value, and no one would credibly suggest that I was. It doesn't matter that I am solely responsible for it.
Artists have many reasons for pursuing the creative process, but I doubt that public ownership of their work is high on their list.
Perhaps. However, private ownership in the form of a copyright is not always that high either. For example, if your posts on/. were utterly uncopyrightable, would you still make them? I bet that you would. And since copyright must serve the public interest, and the public interest isn't well served by wastefulness, granting unnecessary incentives (such as a copyright to a person who would've created sans copyright) isn't acceptable.
You honestly don't see it mattering, and I honestly don't see it mattering, but IIRC the lawyers do see it mattering. That's all I'm trying to say.
Well, I am a copyright lawyer, you know. I can see both scenarios being infringing, or both noninfringing, but I don't really see a big difference, other than possibly having to have a larger fair use analysis. Probably the people of whom you speak are getting hung up on the principle that an infringer cannot stand in the shoes of another to claim fair use, but this would indicate a failure to look at the details involved in this hypo.
I'm afraid that it's you who is wrong, because fair use provisions for example permit copying for backup purposes and media / time shifting (i.e. they are legal copies), but any attempt to distribute such copies to others is illegal unless specific permission to do so is granted by the copyright holder (licenses such as Creative Commons and various opens source software licenses are specific grants of permission by copyright holders for the works that are released under them, i.e. they _authorise_ free distribution of copies under certain conditions).
Distribution infringements are just another kind of infringement; there is nothing magic about them. They are subject to various exceptions and defenses, just like anything else. Indeed, you can even argue that a given distribution is a fair use, since any kind of infringement whatsoever is potentially a fair use (though not necessarily a fair use).
I was discussing first sale, which permits people to distribute copies without authorization of the copyright holder, provided those copies are lawfully made. But lawfully made isn't the same as authorizedly made; as everyone has been discussing in this very topic, sometimes unauthorized copies are nevertheless lawfully made. (The best example of this, IMO, would be 17 USC 117 copies, which may be lawfully made without authorization by parties that qualify under 117, and which may be distributed without authorization as well pursuant to both sections.)
Section 109 of the US copyright act contains specific exemptions for _all_ sound recordings and computer software (not merely most of it),
Good for you for knowing that there is an exception to first sale for those sorts of works. Shame on you for not knowing that there is an exception to that exception! First sale does apply, in full force, to console games, as well as to software that is ordinarily uncopyable (if there is such a thing). Take a look at 17 USC 109(b)(1)(B) for the details. And there's the aforementioned 117 exception as well, though that is something else.
One does not however have to be a school or library to lend them to others, because the law is very specific in stating that permission only has to be obtained if one is renting, leasing, or lending sound recordings or computer programs for commercial advantage, so lending your legally obtained copy to a friend is allowed.
I suppose so, but really, the analysis would hopefully not get that far; as Ray has mentioned lately, a prima facie element of distribution is that it is to the public; private distribution is not covered by the exclusive right in 106. Sadly, it's not as well-defined as one would like, but if we can draw on the public performance and display rights for clarity here, then you're probably okay with a friend. The language in 109 has more to do with lending to the public, but not for commercial advantage.
Still, I should've clarified the point; thanks for bringing it up.
Note also that US copyright law states all copyrighted works except computer software are subject to a series of compulsory licenses which only require payment of statutory royalties for certain types of usage (these vary depending on that usage, and may be zero or extremely small in some cases, e.g. non-profit performances of dramatic or musical works), with no prior permission from the copyright holder being required.
This is poorly worded at best. There are numerous exceptions, some of which are compulsory licenses. Generally, I'd define the latter to be the ones that have statutory royalties. All works are subject to exceptions, though the specific exceptions applicable vary depending on the nature of the work, of the use, of the parties, etc. Fair use alone is applicable to anything, anytime, anywhere, so long as the right circumstances are present. It's the great catch-all of last resort. There are other, more specific exceptions that should be tried first, if available.
NB: Despite the fact that some organisations act as
In Europe... we also still have a much saner view on copyright.
That is the funniest thing I have read all year, I swear to God.
While the Statute of Anne was pretty good, and there have been some smart, right-thinking people in Europe, with regard to copyright, basically you guys have completely screwed everything up.
The US was doing just fine without joining Berne and adopting insane concepts such as life terms, automatic grants, and moral rights. While our own publishing industries are largely at fault, they were greatly enabled by Europe, and it is from Europe that most of the worst thinking on copyright stems. France and Germany are particularly loathesome in this regard.
Remember, every single person who thinks that the US should have a shorter copyright term than life+50 necessarily thinks that the US should withdraw from Berne and turn our backs on Europe. And among people who care about copyright, this is a very common opinion.
Slashdot Mirror
Fair use is all about using things for purposes of critique
No, it's meant to cure situations where copyright is used in a manner that is contrary to the policies underlying copyright. A 'critique' theory wouldn't suffice to explain, say, time-shifting.
When I distribute something, I need copies. Now if the person I am giving it to makes the copies, then I am not copying it and hence cannot distribute it illegally.
Personally, I would agree with you; the statute is clear that distribution is something that can only occur with regard to tangible objects. However, the courts have yet to correct their mistake here (in no small part because no one's made much of an effort to raise it). Not that this would change much, though, as it would just shift the analysis to one of public performance or display.
Anyway, though, following the existing precedents, it is possible for there to be distribution via a computer network where Alice has a copy, allows Bob to read that data, and Bob then creates a second copy. The Napster court was quite clear about this, and it's far from the only one.
They don't have an absolute right, the first sale and fair use principles limit the scope of that.
While fair use could apply in a generic file sharing situation, it likely wouldn't if you run through the analysis; the first three factors are against it to begin with, and the fourth is probably against it as well. First sale, meanwhile, only applies to the possession of lawfully made copies. You can sell or rent or lend or give away a lawfully made copy of a book, but it does not permit you to put the book on the Internet; that has nothing to do with you alienating that specific copy of the book.
When downloading something, you are transferring possession
No, because it is impossible to transfer anything over the Internet. Computers work by copying. When I install a program onto my computer from a disk, a new copy is made. When I run that program, it is copied into RAM, and parts of it are copied into the processor's own registers, cache, etc. If I have virtual memory, then another copy is being made there.
MAI v. Peak is the leading case on this subject. Basically, whenever anything at all is interacting with a computer, you can rely on copies being made, and those copies probably infringing. The statute is just written very poorly in this regard. It needs to be fixed, but until then, you're screwed.
To date no one has been sued or arrested for downloading only. It is only the people distributing it. Why is that when you are so sure? Because you are wrong, that's why.
I remember when no one was being sued for uploading; it wasn't that long ago.
The reason that there aren't currently suits against people who only downloaded is not legal, it's tactical: they're difficult to track down! Uploaders, OTOH, advertise their presence, and are thus easier to catch. Additionally, it is more efficient to go for the head of the snake, as it were. This is why the first suits were against the developers of the software and maintainers of networks, trackers, etc. Then we began to see suits against uploaders. The idea was that if Napster -- a single target -- could be taken down, users would lack the ability to pirate so much, and so it would be like getting a bunch of additional victories for free. If you go after an uploader, then it has a similar but lesser effect; other uploaders are either frightened into stopping or swamped with traffic, and either way, there's less of an opportunity for the more numerous downloaders to do anything. But if you just sue a downloader, it doesn't take out anyone else as well, making them the least valuable target to pursue.
Legally, though, it's easy as pie. RIAA, MPAA, et al have not had to exert themselves, you know. It's probably futile, but it's not difficult for them to win these cases.
If an ordinary person, not the kind or queen you want to make them, represents themselves as having the ability to copy and distribute something, then they are breaking the law not you when you receive it. Do you understand how that works? If the store selling illegal copies of music sells you something, the store broke the law, not you.
That's right, if we ignore
The person giving it to you is authorizing it.
So? That's as meaningful as if I declared myself King of the Moon.
The copyright holder has the exclusive right of reproduction. He can make more copies of the work, and he can authorize others to make more copies of the work. Otherwise, you cannot lawfully make more copies of the work for the duration of the copyright unless there is an applicable exception elsewhere in the law.
An ordinary person who merely possesses a copy of the work, however, cannot authorize anything with regard to the copyright (again, barring any applicable exception). His powers merely extend to the specific, tangible copy he possesses.
You see, If I have something that is copyrighted, I can transfer that to someone else.
Let's clean that up a bit: if you have a copy of a copyrighted work, you can (normally) convey that copy to someone else. The details are mainly in 17 USC 106 and 109. For example -- and remembering that the law defines a copy as a tangible object -- if you have a copy of a lawfully made Stephen King book, you can give that book to me. OTOH, if you cannot make a new copy and give that copy to me, since you're not allowed to make new copies, and you're not allowed to convey unlawfully made copies.
If I transfer it to you, I have to get rid of all the copies I have.
No, that is untrue. If you are giving me a copy, then necessarily, you're losing ownership, and probably possession, of that copy. But if you have two copies of the book, then you can just give me one, and keep the other. The issue is merely that if you're giving away a copy -- a specific tangible object in which the work is fixed -- then that copy gets given away.
I think that the thing you are failing to understand is that whenever the law uses the word 'copy' it means an object you can touch, and probably hold in your hand. The law clearly defines, at 17 USC 101, a copy as being a material object in which a work is fixed.
So a blank notebook is not a copy. When words are fixed into it, it becomes a copy. A paperback is a copy; the story within is a work. A CD is a copy; the music and sound recording within is a work. A DVD is a copy; the audiovisual content within is a work. A computer's RAM or hard drive is a copy; the data stored within is a work.
Feel free to take a look at the law, but there is really no arguing this. That's how it is. The way that people informally call things copies is utterly irrelevant; only the legal definition matters for purposes of copyright law.
Downloading isn't copying for the person who is downloading. It is for the person that offered the transfer.
Wrong.
The law prohibits making a copy. If I download from you, I obviously am not receiving a copy; a tangible object such as a memory chip or disk cannot move across the Internet. Rather, your computer is reading out information to my computer, and my computer is writing it down, thereby creating a new copy. In other words, if there is a tangible object which, at time 0, did not contain a work, and at time 1, did contain a work, then that object has become a new copy.
What the law doesn't care about in the least little bit is the grand total of copies created. If Alice puts a lawfully made CD in her computer, then reads out the contents to Bob's computer, and Bob's computer faithfully writes down that information onto a disk, then Bob has created a new copy. If Alice disintegrates her CD, it still doesn't matter; what is illegal is making new copies, not adding to the number of copies in existence, and Bob did make a new copy.
Nor can you dispute who is responsible for what, once you agree -- as you must -- that an infringing copy has been made.
If someone is providing data for you to download, and you choose to download it, then you are the person making a new copy. No one forced your computer to do it against your will; you initiated the process and caused it to happen. The courts have never had an
Because ownership of music is often complicated, the record label may not have (or be granted) the necessary rights to publish a kick-ass compilation.
It's true. Plenty of labels have failed to include a kick-ass clause in their contracts with the performers. But I imagine that, like the aftermath of Tasini, such clauses will increasingly become standard.
IT is all with copying and distributing. And no, when someone offers something to you, you aren't copying it illegally when downloading it.
Yes you are, if it's not the copyright holder or someone authorized by him, who is permitting it. Downloaders infringe by reproducing works in copies, uploaders infringe by distributing (well, really by publicly performing or displaying, but this relatively minor technical issue hasn't been corrected yet, and usually doesn't matter).
Assuming you're in the US, it would be illegal.
International law is irrelevant; all that would matter here would be US copyright law, which governs what occurs in the US. (The Antiguans fall under Antiguan law, which would protect them in this matter, but not you)
Copyright applies to a number of different activities, but the two that are relevant here are reproduction and public distribution. Reproduction is the creation of a copy, and public distribution is the transfer of ownership or possession of a copy to members of the public. The key thing is that a copy is defined in the law as a tangible object in which a work is fixed. So, for example, if you create a poem and speak it aloud, but never write it down, it is not fixed, and there are no copies of it. If you write it down, the object upon which it is written is the copy (e.g. a piece of paper, or a computer disk).
When you download something, obviously, no tangible copies are coming down the wire. So clearly, no new copies that you receive are being made in Antigua. Only intangible information is. However, you are necessarily storing the downloaded data onto some sort of tangible medium, such RAM or a disk; thus, you're creating a new copy, i.e. reproducing. Furthermore, you're doing this in the US, where US law, rather than Antiguan law, applies. If US law says that you, a person in the US, cannot reproduce the work into a new copy in the US, then that's what you're stuck with; it doesn't matter what some foreign government says, since they cannot regulate what occurs here.
Now, if copies were made in Antigua (e.g. burned onto a CDR) and the copies were physically transported into the US (e.g. via the mail), then that would be importation, which is a kind of distribution. However, US law would prohibit that importation as an infringement of the US copyright holder's exclusive right to distribute in the US. There are some exceptions: e.g. if they had been made in the US, shipped to Antigua, and were now shipped back, that would be lawful; if they were made in Antigua in a manner that would have been lawful had US law applied there (i.e. if it was done with the permission of the US copyright holder) and you only imported one copy at a time for your own personal use and not for resale. (Most people forget that both 602(a) AND 602(b) apply, and that 602(a) exceptions don't affect the 602(b) prohibition!)
The ultimate result is that this is great if you are physically in Antigua, but otherwise basically irrelevant.
Nope, that's an invalid argument. A couple of centuries ago, it was a "local custom" to burn witches in this same state.
No, first, it was about three centuries ago, not two. Second, they were usually hanged; I don't think that any witches in Massachusetts were ever burned. Third, it's not a state, it's a commonwealth (though that didn't happen until well after the era of witch trials; for example, during the Salem witch trials, it was a province).
Also, IIRC, you can buy wine on Sunday afternoons. I've never really cared enough to look into it.
Meh. My understanding of this is that Antigua would merely be relieved of its obligations to the US pursuant to TRIPS et al up to the limit awarded.
Remember, copyright is a national system, not an international one. There is no such thing as an international copyright. Rather, there are US copyrights, UK copyrights, Canadian copyrights, etc. Most countries are members of various treaties that state that when one member grants a copyright, the other members will also grant a copyright to the same applicant. So if Alice, an American, writes a book, she has a US copyright that applies within the US, and also (among other things) an Antiguan copyright that applies in Antigua.
Antigua no longer has to grant or respect US copyrights per this award, but that doesn't mean that US copyrights on those works don't still apply within the US! So if Alice is in the US, and Bob is in Antigua, Bob's government is letting him make all the copies of music he likes, and distribute them as he likes (again, up to the limits of the agreement). But Alice, in the US, is subject to US law, not Antiguan law. She can't download anything from Bob, since that would involve creating a copy in the US (copies, remember, are defined in the law as tangible objects in which the work has been fixed, and importation involves the moving of those tangible objects across borders; since Alice can't download a tangible object, when she downloads, she actually creates a new one: the medium she's writing to) which would still be illegal.
So if you want to benefit from this, you're going to need to go to Antigua. Otherwise it's pretty uninteresting.
The author of the interstate commerce clause could have never envisioned e-commerce.
E-commerce is not fundamentally different. There was nothing preventing a person in 1787 from writing a letter to a bookstore on the Amazon, asking whether they had a copy of 'Common Sense'; getting a response in the affirmative; writing another letter saying that you want to buy it using a valid payment method and have it shipped to you; and having that occur.
That would inarguably be foreign commerce, and be subject to regulation by Congress.
The Internet is just faster, is all.
You really can't just say this and have us accept it without any justifying arguements.
It's always seemed pretty self-evident to me.
But for starters, transportation is inherently inefficient in terms of time and money. Ideally, your home, your place of work, all the people you want to meet, all the cultural activities you want to engage in, and all the goods and services you want to use, would be right at your fingertips, all the time. The next best thing is for them to be only a very short distance away, so that you can get to them (or have them come to you) quickly and cheaply. Since it is also more efficient for shareable resources to be shared (e.g. it's better to have one centrally located store for many customers than one store per customer at the customer's current location) you'll want densely populated areas to place these things.
For example, I live in a city; I don't need a car and so I don't own one, as it would merely be a waste of money to maintain, store, and keep registered and insured. Yet most of the things I need or enjoy (e.g. groceries, libraries, hospitals) are within only a few minutes' walk. Because I live along a transit line, I can swiftly, cheaply, and efficiently go from place to place in my city. I happen to live in a different part of the city than where I work. Of course, this isn't true of everyone. Still, I get to work a lot faster than if I drove, I don't have to look for parking (and most likely pay for it), and I can spend the short commuting time I do have in more interesting pursuits than crawling through traffic. I could take a cab, but that would be even more expensive.
Really, the only way that cities wouldn't be the ideal would be if we could teleport cheaply to anyplace (e.g. Larry Niven's Flash crowd or Dan Simmons' Hyperion).
OTOH, it sucks having everything far apart; it takes a long time, and more money in order to go anywhere to do anything. Further, you can't use mass transit, which is quite efficient, but have to move everyone individually. Providing resources is also costly; rural mail and electrification cost a lot due to the long distances involved. Sometimes it's unavoidable; as I said, I don't have any complaints about people who live in the middle of nowhere because they must (farmers, mainly, as well as some people who provide services for them, such as a small-town doctor). I do, however, have little good to say about people who don't need to live far out, and who, in fact, try to make country-to-city commutes frequently.
Read some Jefferson if you want some thoughtful exploration of the evils of large cities.
IIRC his biggest complaint, other than that they had different attitudes from Virginia gentry farmers, was that they were unhygenic. I'd say that that would be true of late 18th and early 19th century cities. In the early 21st century, we seem to have that problem pretty well taken care of.
High density cities are not the 'norm'
Traditionally, they are. Cities have generally been small in area and densely packed. It wasn't practical to have a spread-out city for several reasons and poor transportation infrastructure for food, fuel, and water, tended to keep most of the population in the country... often supplying resources to cities. Cities started to take off with the invention of the locomotive, and really took off with the use of steel structural members for buildings, which raised the density ceiling immensely. (Our main problem now is vertical transportation; it's tricky to balance the number of elevators you have with usable area per floor. I suspect that the answer will be in interconnecting buildings at height to remove the bottleneck of everyone having to go to the ground floor all the time)
We are not honeybees, who crowd into hives. Human culture can spread out.
The real question is whether it can sustainably do so. I'd prefer for human civilization to endure rather than to burn itself out. We certainly cannot keep living as we do, so something's going to have to give.
Urban density is a good thing. But if you really do want to lie in the wide-open countryside, you can do that too: just become a farmer, rather than some schmuck who wastes time and increasingly precious and so-far irreplaceable energy resources commuting a hundred miles a day.
Really, the idea that cities would not be dense, or that commutes would even be possible, is a quite recent aberration, and evidently not a sustainable one.
Absolutely not. Indeed, I can't imagine much worse than that.
Make this rule apply to all government, top to bottom, every worker there, elected, hired, appointed, it doesn't matter. No more lifelong careers in government.
Well, that would certainly have interesting effects on the military. Privates would be the guys who had just started, and generals would be the guys who had been there ten years.
Here's what it consisted of: (I have put the relevant bits in bold)
Now it is worth noting that back then, not all infringements were criminal; nor has this ever been the case, and it even won't be under the recent bill. But the penalties have expanded over the years, and what constitutes criminal infringement has expanded as well.
Quotations, satire, criticism etc. were among the exceptions that I was referring to as others we weren't discussing at the moment, mainly because they are generally fragments of a copyrighted work that are included in another work, so even without the fair use provisions, they would fall under the category of derivative works rather than being the actual copies that are the subject of the discussion.
Quotations are actual copies, not derivatives. It doesn't matter that the portion copied and reprinted is only a small part of both works. Satire involves the derivative right, though. Criticism... depends on just what it is. Could be neither, either, or both.
Distribution is supplying copies (or broadcasting) to third parties
Broadcasting is performance or display. Distribution is supplying copies.
Every company employee or visitor to its premises counts as a party for copyright purposes because they do not normally reside at those premises, so making copies that can be read / listened to / viewed / run etc. by more than one of those parties at the same time counts as distribution, not reproduction
I disagree. Where they reside is irrelevant. Distribution has to be public in order to be actionable, but where all the natural persons involved are employees of a corporation, and the distribution occurs as a part of their job duties, then it's not public; it's private, internal to the business at hand. It is no more public for Alice to give a copy to Bob as part of their jobs, than for me to move a book from my left hand to my right.
Making the copies, OTOH, is reproduction, which has no public element to it.
17 USC 119(a)(15)(D)
Ah, buried in the bowels of section 119. I should've expected that.
I think juries will see past your 'almost infringement'.
You still don't understand.
The chief role of a jury is as the trier of fact. Various alleged facts are presented to the jury, and it decides which of those are true, and which are false. However, a jury is not a trier of law; the judge fills that role. Thus, when the parties in a lawsuit argue as to the interpretation of a law, the judge decides. The jury is not even consulted, and often isn't even aware of the argument.
For example, let's say that Alice has been killed. Bob was found standing over her body, while Carol was found in the other room with her friend Dave. The police have been spying on Carol and videotaped her killing Alice. At Carol's trial, Dave testifies on her behalf, and swears that Carol was never in the room with Alice. Bob, on the other hand, testifies against Carol, and says that he was Carol kill Alice. The jury has to decide whether they believe Bob, or Dave, or neither.
The police have a videotape that shows Carol killing Alice, which would settle the question easily. But perhaps they didn't have a warrant permitting them to make that tape. Carol will argue that the law prohibits the police from using the tape against her because it was obtained illegally. The DA will argue that the law permits the introduction of the tape as evidence. The jury, however, is deliberately left in the dark about the tape. They don't even get to know that there is a tape, or what's on it, or who made it, or that there is an argument concerning it. The judge alone hears the legal (not factual) issues involved and decides whether the tape is in or out. If it is in, then the jury gets to see the tape, but still is not told that there was an argument about whether it could be shown to them. If it is out, then neither side gets to breath a word of the tape's existence or contents to the jury.
That is the difference between the factual and legal aspects of a trial and the different parties involved in judging them.
The argument as to whether offering for distribution is in fact distribution is a legal argument, not a factual one. So no jury will ever 'see through' the argument, because no one makes the argument in front of or to the jury. The judge gets to decide without any input from the jury at all.
If a defendant wins that argument, then the only factual issue left will be whether an actual distribution (not an offering) took place. The jury will be not be asked whether a distribution could have occured, they will be asked whether they believe, based on the facts alleged to them, whether one actually occurred. And of course, if the plaintiff has no facts that could support a conclusion of actual distribution, then the trial is concluded with summary judgment, and never gets to a jury at all, since there was no real question of fact to begin with.
That's not the issue.
First, copyright law treats the unwitting dupe and the unanswerable person equally; the jury will never be asked to consider the mental state of the defendant with regard to anything other than damages (if that).
Second, where the plaintiff cannot show facts indicating actual distribution, again, the issue will not reach the jury, for there would be no facts for them to weigh. A simple summary judgment motion would end things in the defendant's favor.
It's very simple: The Copyright Act makes distribution of copies and phonorecords unlawful, and defines copies and phonorecords as tangible objects that are impossible to send over the Internet. Online distribution isn't possible. What is possible is online performance and display and reproduction, but all forms of infringement require the infringement to actually occur. An almost infringement is no infringement at all, and doesn't violate the law.
I believe personally, you put something up there for mass distribution, intent is already proven. Why should a damaged party have to prove the almost impossible.
Well, no problem there: in a civil copyright suit, there is no element of intent whatsoever. Indeed, if you act responsibly and reasonably, and there is nothing you reasonably could have done better, yet you still infringe, you are on the hook. Intent only matters for damages and criminal copyright infringement.
So the plaintiff needn't prove intent whether it is easy or difficult to do so. It's a total non-issue.
What I think that he should have to prove, however, is that there was an actual infringement, as opposed to there merely being ripe circumstances for an infringement which, for all we know, never actually occurred. Is this so difficult?
"You can even be criminally prosecuted for making 5,000 copies with no intention to distribute them (and where you never do)"
That's because fair use copying exemptions would regard 5,000 complete copies (or for that matter 50) on a small number of sites as being excessive and unnecessary for the purposes of those exemptions, i.e. archiving or backing up (note that I realise there are other types of exemptions, but we aren't currently discussing those).
First, fair use is there to enable unauthorized and otherwise-infringing fair uses. Archival uses are actually a pretty modern form of fair use; the 'original' fair use, though, dealt with quotations, back in Folsom v. Marsh. And there are other exceptions besides fair use, but I don't mind ignoring that.
Second, you may have misunderstood me; I said that you could be prosecuted for making those copies. I didn't discuss whether someone would be convicted or not, what defenses they'd have, etc.
it would be very difficult to argue that one had expended significant amounts of time and money making large numbers of copies without intending to distribute them
The statute doesn't prohibit intention to distribute; just distribution. This is, of course, a hotly contested point at the moment.
IMO the US laws are more reasonable in balancing consumer rights and those of copyright holders than those of some other countries, although I know many on Slashdot would disagree!
I agree. US copyright law is incredibly unreasonable, but it's not as bad as it is in some jurisdictions.
It's not at all iffy, because companies are by definition organisations that exist to make a profit, so any copying (internal or otherwise) falls under the "for profit" heading, and a fair number of them have been sued for either making unauthorised copies of works, or "publishing" them on internal networks, although most seem to settle out of court because it's less expensive than fighting a possibly protracted legal battle, so it's not clear whether any precedents have been set or not
Again, I think you might misunderstand me. I don't doubt that it would be infringing (I recall cases along these lines), but merely whether it would be distribution if it was purely internal. Easier to argue reproduction.
I quite clearly said that statutory royalties for _some_ compulsory licenses may be zero
I don't recall that to be the case. The royalties may be exceedingly small at times, but I don't recall any that can be zero. Could you provide a cite?
Distribution (or the obvious intent to do so, e.g. having 5,000 copies of a work in fake packaging sitting in boxes) is what will usually end up with people getting prosecuted, so I'd say there is something rather magical about them, at least in the legal sense.
No, it's just that that's easy to notice and generally not too objectionable. You can even be criminally prosecuted for making 5,000 copies with no intention to distribute them (and where you never do), or a myriad of other things. But if you never reveal to anyone else what you've done, you are simply more likely to get away with it, is all.
Certain types of what could be termed "private" distribution are also prohibited, e.g. copying for distribution within a company's premises.
Copying is reproduction, a different flavor of infringement. As for the distribution aspect of that, within an organization, it seems iffy. Certainly possible, but not open and shut.
Furthermore, the term "compulsory license" is the one Title 17 uses for those that have statutory royalties,
But you said that some compulsory licenses had no royalty, in which case I'd consider them to just be a vanilla exception, and not a license at all, barring clear language in the statute to the contrary. My objection was with your phrasing.
I guess will have to agree with you and not the courts nor jury.
First, juries don't ordinarily decide matters of law, which is what this is. In the Thomas case, the jury was instructed by the judge that making available was distribution, and was only asked to consider whether the defendant had made works available; not what that ultimately meant.
Second, this is only one court, and it is a district court at that. We have an appeals process because we know that courts may get things wrong. I think that the Roberts court screwed this up, and hopefully it will be reversed on appeal. Lord knows, courts have screwed up worse than this.
Glad to see you have it right and all the others have it wrong.
What all others? This is a hotly contested and pretty novel question. If there were good precedents, your criticism might be valid, but it's really never been determined; it's never needed to be, until now. And it's not just me saying this, either.
The comparison of 'planting a flag' and 'creating something of value' is of questionable validity.
/. were utterly uncopyrightable, would you still make them? I bet that you would. And since copyright must serve the public interest, and the public interest isn't well served by wastefulness, granting unnecessary incentives (such as a copyright to a person who would've created sans copyright) isn't acceptable.
How so? It doesn't matter what the origin of the thing being claimed is; it just matters what the effect of the claim on others who are being dispossessed by it is.
And certainly, in our society and legal history, merely creating something has never automatically translated into exclusive rights in it. If I plant a fabulous garden in front of my house, and the property value of the house next door goes up merely because it is next to my house, that doesn't mean I'm entitled to that additional value, and no one would credibly suggest that I was. It doesn't matter that I am solely responsible for it.
Artists have many reasons for pursuing the creative process, but I doubt that public ownership of their work is high on their list.
Perhaps. However, private ownership in the form of a copyright is not always that high either. For example, if your posts on
You honestly don't see it mattering, and I honestly don't see it mattering, but IIRC the lawyers do see it mattering. That's all I'm trying to say.
Well, I am a copyright lawyer, you know. I can see both scenarios being infringing, or both noninfringing, but I don't really see a big difference, other than possibly having to have a larger fair use analysis. Probably the people of whom you speak are getting hung up on the principle that an infringer cannot stand in the shoes of another to claim fair use, but this would indicate a failure to look at the details involved in this hypo.
I'm afraid that it's you who is wrong, because fair use provisions for example permit copying for backup purposes and media / time shifting (i.e. they are legal copies), but any attempt to distribute such copies to others is illegal unless specific permission to do so is granted by the copyright holder (licenses such as Creative Commons and various opens source software licenses are specific grants of permission by copyright holders for the works that are released under them, i.e. they _authorise_ free distribution of copies under certain conditions).
Distribution infringements are just another kind of infringement; there is nothing magic about them. They are subject to various exceptions and defenses, just like anything else. Indeed, you can even argue that a given distribution is a fair use, since any kind of infringement whatsoever is potentially a fair use (though not necessarily a fair use).
I was discussing first sale, which permits people to distribute copies without authorization of the copyright holder, provided those copies are lawfully made. But lawfully made isn't the same as authorizedly made; as everyone has been discussing in this very topic, sometimes unauthorized copies are nevertheless lawfully made. (The best example of this, IMO, would be 17 USC 117 copies, which may be lawfully made without authorization by parties that qualify under 117, and which may be distributed without authorization as well pursuant to both sections.)
Section 109 of the US copyright act contains specific exemptions for _all_ sound recordings and computer software (not merely most of it),
Good for you for knowing that there is an exception to first sale for those sorts of works. Shame on you for not knowing that there is an exception to that exception! First sale does apply, in full force, to console games, as well as to software that is ordinarily uncopyable (if there is such a thing). Take a look at 17 USC 109(b)(1)(B) for the details. And there's the aforementioned 117 exception as well, though that is something else.
One does not however have to be a school or library to lend them to others, because the law is very specific in stating that permission only has to be obtained if one is renting, leasing, or lending sound recordings or computer programs for commercial advantage, so lending your legally obtained copy to a friend is allowed.
I suppose so, but really, the analysis would hopefully not get that far; as Ray has mentioned lately, a prima facie element of distribution is that it is to the public; private distribution is not covered by the exclusive right in 106. Sadly, it's not as well-defined as one would like, but if we can draw on the public performance and display rights for clarity here, then you're probably okay with a friend. The language in 109 has more to do with lending to the public, but not for commercial advantage.
Still, I should've clarified the point; thanks for bringing it up.
Note also that US copyright law states all copyrighted works except computer software are subject to a series of compulsory licenses which only require payment of statutory royalties for certain types of usage (these vary depending on that usage, and may be zero or extremely small in some cases, e.g. non-profit performances of dramatic or musical works), with no prior permission from the copyright holder being required.
This is poorly worded at best. There are numerous exceptions, some of which are compulsory licenses. Generally, I'd define the latter to be the ones that have statutory royalties. All works are subject to exceptions, though the specific exceptions applicable vary depending on the nature of the work, of the use, of the parties, etc. Fair use alone is applicable to anything, anytime, anywhere, so long as the right circumstances are present. It's the great catch-all of last resort. There are other, more specific exceptions that should be tried first, if available.
NB: Despite the fact that some organisations act as
In Europe ... we also still have a much saner view on copyright.
That is the funniest thing I have read all year, I swear to God.
While the Statute of Anne was pretty good, and there have been some smart, right-thinking people in Europe, with regard to copyright, basically you guys have completely screwed everything up.
The US was doing just fine without joining Berne and adopting insane concepts such as life terms, automatic grants, and moral rights. While our own publishing industries are largely at fault, they were greatly enabled by Europe, and it is from Europe that most of the worst thinking on copyright stems. France and Germany are particularly loathesome in this regard.
Remember, every single person who thinks that the US should have a shorter copyright term than life+50 necessarily thinks that the US should withdraw from Berne and turn our backs on Europe. And among people who care about copyright, this is a very common opinion.