Can the studio remix or rerelease or something forever? DO they get another 50 years tacked on?
Setting aside the issue of statutory retroactive extensions, no. They copy copyright whatever copyrightable changes they've made, but that doesn't affect the unchanged material. E.g., you can creatively select and arrange some public domain sound recordings of public domain compositions, and copyright the overall compilation (i.e. that specific selection of songs, in that specific order) but the songs and compositions themselves remain in the public domain.
There's effectively nothing that keeps copyright holders in check anymore; they don't really get in trouble if they put down an inaccurate copyright notice. The down side -- other than the obvious misinformation -- is that it vastly increases transactional costs for people who want to use public domain materials, what with all the copyright searches. And even then, there's no perfect certainty nor safety. It ends up being easier to pay for licenses that you don't need to get, just to be safe.
It's all very sad, and one of the many important issues that reform legislation must address. Term lengths are not the only issue.
Come on, Ray. That post wasn't about this case, it was correcting a blanket statement about the Copyright Act. Besides which, I was talking entirely about First Sale, not prima facie infringement of the distribution right.
Copyright law prohibits distributing unauthorised copies, not lending, leasing, selling, or giving away works in their original published form.
No on both counts. Copyright law prohibits unauthorized distribution of unlawfully made copies; unauthorizedly-but-lawfully-made copies are a-ok.
Also, you cannot rent, lease, or lend, most computer software or sound recordings without authorization, unless you're a non-profit library or school. And if you are, then sometimes you can make your own copies of works and lend those, rather than the originals, again, sans authorization.
The thinking and legal justification goes like this:
Oh, I bet it doesn't.
You get what basically amounts to a 44.1 KHz two channel encoded audio file. If you make an MP3 out of that, you cannot turn that MP3 back into that exact same 44.1 KHz bit pattern. Therefore the MP3 is not a backup. It is "derivative", and can be argued that it doesn't fall under fair useage that allows you to make a backup copy.
First, a mere loss of fidelity doesn't make a work derivative. There is a very specific definition for what constitutes a derivative work, found at 17 USC 101. Lossy encoding such as this doesn't qualify. Second, a work is a work based upon human perception. If you hand-copy a book, and make some spelling errors, that is the exact same book, just misspelled. It is not a different, derivative book. This is because a human being can tell that it is the same book, rather than a different but related book. Whether a computer could make the same determination, whether the words and punctuation are 100% identical, is totally irrelevant. Third, fair use permits any manner of infringing activity, so long as it is fair, considering the circumstances. There are many fair derivatives, such as parodies. However, no particular use is guaranteed to be, or not to be, a fair use; one parody might be lawful (e.g. 2 Live Crew's 'Pretty Woman') and one parody might be unlawful (e.g. 'Air Pirates'). Likewise, there is no assurance that it is a fair use to make a backup of a work. It might be, it might not be. It depends, and each case must be judged on its own merits. Ditto with regards to making derivatives.
If you made just one copy of the CD, you'd likely be completely covered under fair use.
The number of copies might be relevant, or might not be. It's part of the circumstances, but again, not determinative of anything.
It's a strange concept, because most people think 'if it sounds the same, it's the same song, right?', even though the bits and bytes that make up the sounds are different.
Then I guess 'most people' are better at this than you are.
No, while some of the time spent laughing would surely be billed to the client (after all, the laughter is in regard to a client matter), there's only so much of that you can put on the time sheet and get away with it.;)
Whether it's fair use or not is in a way retroactive
Do you have some caselaw on that point? Remember, an infringement occurs at a specific point in time: the instant of copying, the instant of distribution, etc. Further, infringement is a strict liability offense, so it is totally irrelevant what an infringer intends, save when you're computing damages.
Let us imagine that you copy a CD onto a CDR (without the AHRA applying) in a space-shifting manner. If this is a fair use, then the copy is lawfully made, yes? If it's lawfully made, then section 109 applies, and you can sell that CDR even though it was unauthorizedly made and the copyright holder never sees a penny from it. But it's easy to see how a court could look at the same circumstances and decide the other way.
I agree that in practice a court is likely to weigh fair use in light of events that occurred after the fair use was over and done with, but there really isn't support for this in the law, AFAICT.
Certainly there are plenty of legal scholars going both ways on this, and AFAIK there is no clear caselaw. So I wouldn't make such absolute statements. Fair use is never going to be that clear, and even the courts struggle with it routinely.
Copyright is meant to last for 14 years, renewable for another 14 years
Why 14+14? Why not 7+7+7+7? Or 2+2+2+2+2+2+2, except for software, which is only 2+2?
I'm all for copyright reform, and for reducing term length, and for reintroducing optional renewals, but we do not have to take the 1790 Act as gospel.
What I consider to be the most deranged facet of the US system of government's checks and balances is that is impossible to overturn a bad law without breaking said law, and then pushing that case up to the Supreme Court.
No, Congress can repeal or amend federal laws as they see fit, and they do so all the time. Further, any court can overturn a law, it's just that as you go up the system, and into the federal judiciary, it has a broader effect.
Anyway, the only real solution to the copyright issue is via Congress. The courts are of no particular help here, I assure you.
No, the AHRA lets you make copies of certain works -- provided that you do so in an AHRA-compliant manner, which almost no one ever does, even if they think that they are -- but it doesn't permit distribution. In fact, it's quite cleverly worded in a way that actually slipped by Congress (guess who made the amendment) to prevent exactly this.
But I do feel that, as a content creator myself, I should be able to decide where my hard work is used.
That is your opinion, certainly. But remember, you're not the copyright creator. The public, via its agent, the government (assuming a legitimate government) creates copyright law, consents to it, and grants you a copyright, all for its own self-interest.
While you should feel free to have a say, it's not up to you to enforce that say; it's up to everyone else to respect your wishes, so long as, and to the degree that, it is worth their while.
Think of a similar situation with real property. You could go to some island, plant your personal flag, and claim it as your own. But if your 6 billion plus neighbors ignore you, you're up shit creek.
Oh bullshit, she has a license to listen to the music,
No she doesn't. She owns the CD, and can do any lawful thing with that specific tangible item. Since copyright doesn't prohibit merely listening to a creative work fixed in a copy you own, she can do that. The law views it as interchangeable with, say, playing frisbee with the CD. They're both lawful acts, and uninteresting.
Same deal with downloading MP3s of songs i already own in CD format.. CURRENTLY fair use allows me to do this legally
Maybe, but it is by no means certain, and would probably be a very difficult argument to make. Were I you, I wouldn't be so self-assured.
For the hypo where Alice and Bob each own an authorizedly made copy of the CD, where those copies are fungible, and Alice makes an additional copy which she gifts to Bob, I honestly don't see it mattering whether Alice made the copy using her own copy as the source, or Bob's.
Making a copy and distributing it are both infringing. The likely defense here is fair use. The fair use argument fails on the first three prongs, and hinges on the fourth. For the fourth prong, Bob already owns an authorized copy of the same work that Alice is now giving him a copy of. It is unlikely, then, that Alice's copy would have any effect on the actual or potential value in the market of the work, as the new copies are not substitutes for authorized copies for either of the parties involved.
If Alice and Bob originally owned substantially different authorized copies (e.g. Alice has the DVDA or SACD, and Bob has the Edison cylinder) then maybe there might be something to argue. Even there, I dunno; it would effect the market for an edition of the work, but the work is more than a specific edition.... That could be interesting.
If I come up with a new formula, design, song, movie, or anything else that I personally created, it's mine and I can do whatever I want with it.
I agree with the second part, but not the former (unless by 'mine' you mean 'everyone's').
I can -- and probably will -- charge whatever the free market will bear for the fruit of my hard work. Such is my right, since without me the idea would not have come into being.
I agree, except that again, everyone has that right; it is irrelevant who caused the thing to come into being. For example, I print up copies of Shakespeare, right now, and sell them for as much as the market can bear. It's great that you're so entrepreneurial, but in truth, what you would propose to do isn't terribly impressive.
Now, this isn't to say that I am inevitably averse to giving you a monopoly on the doohickey du jour. But the mere fact that you really really want a monopoly (since no competition and monopoly pricing favors you) isn't going to be enough. After all, I really really don't want you to have a monopoly (since competition and commodity pricing favors the whole world other than you). The trick is finding a way where your self-interest is sated by giving you something of what you want, but the rest of the world's self interest is sated by giving them something of what they want (in practice, they win out more, since they outnumber you and basically get to dictate the terms).
Of course, if you don't like the system, you're free to not do anything noteworthy.
Format conversion is NOT grounds for copyright infringement if it's for personal use. I don't understand why judges have such a hard time with it, it seems pretty simple.
Well, they probably find it difficult because the Copyright Act says nothing of the sort. It is arguably a fair use, but that's by no means certain. Indeed, while that argument might have carried the day back in the 90's, the market has changed enough that a court would have to grapple quite a while with the analysis.
You don't have to do a trademark search. But the process of getting a mark is time-consuming and costly, so it's foolish not to do a search in advance. (Plus it helps to keep you from treading on someone else's toes, which could get you into trouble, force you to relabel all of your goods or services, etc.)
You can do some decent searching for registered federal marks on the PTO website for free. But a thorough search will still cost some money. There are some third party sources that do that sort of work. I would certainly not want to skip over doing a proper search. The repercussions if you've missed something important are too severe.
I can't think of any possible means by which you could prevent people from mailing in a piece of paper requesting a trademark on anything they want.
Well, if you want to deter people from mailing in those papers, a good method might be charging them $375 up front before anyone even looks at it. Federal trademark registrations aren't free.
My take on "property" is that it's rivalrous, which pretty strongly implies tangible.
No, not at all.
For example, suppose that you deposit a $100 bill in the bank. You still own the $100, but the bill itself won't remain in the bank; it will move around where it is needed. What you own is a debt of the bank, to you, in the amount of $100. That's intangible. When you go to the ATM to collect on that debt, you'll probably get five $20's. Until that point though, all you owned was their obligation, not anything tangible. Nevertheless, the debt is rivalrous. You can, for example, give the debt to a third party, in which case the bank owes the money to him instead. But you cannot give the debt in full to someone else while keeping it in full for yourself, and expect the bank to pay out a total of $200, which would be possible were it nonrivalrous.
Just because not all intangibles are rivalrous doesn't mean that none of them are.
They couldn't get the trademark for something they didn't invent.
Yes they can. All you have to do in order to get a trademark is use the mark in commerce to indicate the origin of goods or services so marked, in a manner that is neither generic nor merely descriptive. You don't have to create the mark yourself, or even be the first person to use it. You don't think that Apple invented the word 'apple' do you?
The only possible reason I can see for denying an application for NSFW is that it is merely descriptive without secondary meaning, with regard to the services they would use the mark on.
So? Trademarks are not patents. It is not necessary to have been the original creator of the mark, or even the first person to use the mark. Neither novelty nor originality are important.
[Copyright is] not purely to make money on the individual work. It's also to encourage derivative works by the same author
No, not really. We want to encourage the creation and publication of derivative works period. It doesn't actually matter who creates them. Indeed, the more derivative authors there are for a work, the better. There is no guarantee that the author of the original work will produce any better of a derivative than anyone else. Quantity is the best way to ensure quality. There are plenty of derivative works that are unauthorized, and far superior to anything the original author did. And plenty of authorized derivatives, often by the original author, that suck. The more of them there are, the more opportunity the market has to decide which it prefers.
The only reason that we restrict the creation of derivatives at all -- and we don't entirely, see e.g. covers of songs -- is because it can severely impact the economic value of the original work, and thus the incentive of the underlying copyright. For example, if there was no derivative right, then perhaps fewer authors would write books, because a movie studio could adapt them into movies without permission or payment. The potential value of the film rights is one portion of the overall potential economic value of the work, which is what we're dangling in front of the author to get him to create.
Still, though, the derivative right is really overbroad. The question of what to do about it is one of the most important, yet oft overlooked, in copyright. Personally, I favor making non-infringing any non-commercial act by natural persons. This would enable a significant number of amateur derivatives at least (along with some other things unrelated to this specific issue). It would largely just legitimize the existing masses of people who do this, but it's a start, and would seem not to negatively effect the derivative right.
and to provide for a type of limited-length ownership for the expression itself.
To what end? All you've done there is describe, roughly, _what_ copyright is, but not _why_ it is.
I can tell you for certain that if a person writes one short story and publishes online, they probably don't want someone to come along and make a killing off of a compilation of short stories including their work without some compensation. $25 for something you're not planning to sell is kind of steep.
$45. Which is probably CAN$25 by now!
In your example, I would say that the author there is the worst sort. He's not interested in making money, which is perfectly fine and laudable. But he wants to prevent other people from making money which he has ignored. That is just spiteful. Certainly it's about the worst example you could have chosen to oppose the idea of registration. If the money is important to him, he'll register. If it isn't important to him, he won't. To that author, money is important, just in a negative way: he doesn't want it (or he'd sell his work) and doesn't want anyone else to have it either. Still, since the economic value derived from the copyright is important to him, he's in the group that ought to register. I don't see a reason to have automatic copyrights yet.
What you're saying is essentially that if someone writes that to share with people for free, they have no right to keep someone else from plagiarizing it without paying the fee for registration.
It has nothing to do with whether it's for free or not. It is that the public is best served by works being in the public domain. Preferably sooner than later, and preferably entirely, or at least mostly in the public domain, rather than only partially so. Part of that is that the effects of competition are good for the public. If the author puts it on a free website, then that is good. If a second person publishes it in book form, and sells it in the store, that is also good: now there are more places to get the work from! If the author decides to remove it from the web site, then the fact that
It would be a terrible idea to have anything implemented into law that helped someone profit from their work?
No, only if that was the goal. If the goal is to advance the public interest by promoting the progress of science, and the best means of doing so happens to involve helping authors to profit from their creative works, then I'm entirely in favor of it.
I'm just saying that the goal of copyright is to maximally benefit the public. You're confusing the means for the end.
That if I slave away for a couple of years over a novel, society has the right to rip it away from me because that benefits society?
Not quite. First, there is no right for an author to get a copyright. Congress can grant copyrights, or not, however it sees fit, with only a few limitations on to whom it can make the grant, the duration of the grant, and the subject matter to which the grant pertains. We happen to have a long history of granting copyrights, but we're not obligated to do so. Second, there is no power under which authors can be forced to create works, or publish them; if they want to not create a work, or to keep the work private, that is entirely their decision. However, we can choose to only grant copyrights for published works, say, in order to incentivize authors to do what we want them to do. That is, copyright is basically about carrots, not sticks. Third, it is understood that some authors will only create works because of the incentive of a copyright. Provided that the public benefit derived from granting the copyright exceeds the public cost borne by suffering under the restrictions of the copyright, then it is not only allowable, but actively desirable to grant the copyright. It would be self-defeating for the public to offer copyrights but then not actually grant them when the time came. So why would it be done. (Though this doesn't foreclose the possibility of reforming copyright in such a way that the incentive is lessened; there's a difference between trying to improve our implementation of policy and merely being cruel in a Lucy van Pelt sort of way)
And that, I quote: "any incentive provided should be minimal." Again, wow! No artist should be able to negotiate with their customers an agreed value for their work?
Ah, this is a simple misunderstanding. I'm talking about the incentive of the copyright itself. That is, if an author would be willing to create a work for, say, a five year copyright, then it is not in the public interest to grant him a 100 year copyright; the extra 95 years are wasted. I don't care at all about what prices an author charges his customers. Certain other business practices involving consumers may be against policy or abusive, however, and warrant attention (e.g. DRM, EULAs).
Because that's what copyright law does - allows negotiation. It allows someone who produces a work to set a price on that work. People can then either accept that price or leave it. The producer of the work in turn sells according to the value society is willing to place on their work. Thus society rewards people in accordance with perceived value - a streamlined and efficient system.
Yes, but at the significant cost of imposing a monopoly on that work. The price set by the author is a monopolist price, usually far in excess of the price of copies of that work, which are commodities, in a free market. I'm willing to tolerate state-created monopolies on occasion, but only if it serves the public interest. There is no excuse whatsoever for a state-created monopoly that is bad for the public! Sure, the monopolist probably loves it, but why should I want to support him? Why should everyone else want to support him? Unless it is in our best interest, or unless the government is severely corrupt, it should not happen.
I sincerely hoping you're not going to suggest state funding as an alternative. As to people donating tips to authors or film directors
There is a place for state funding of the arts, and there is a place for pa
If someone produces music or a film that I enjoy, I want that person to be rewarded... Unless an artist is to hire their own thugs to go around taking back unpaid for copies, or unless people universally pay voluntarily what the artist wants to charge, then some sort of law seems necessary, does it not?
Yes, if that were your goal. But that has never been the goal of copyright.
Copyright is meant to benefit the public, not authors. It benefits the public if authors create and publish more works, so an incentive is created to get authors to create and publish works that they otherwise would not have. (For authors who would've done so anyway, there's no reason to give them a copyright -- the incentive would be wasted on them) It harms the public, however, to have to suffer from restrictions as to what they can do with a work, so the incentive provided should again only be granted where necessary, rather than watefully, and should be minimal, rather than excessive. Ideally, copyright should provide the greatest possible public benefit for the least possible public detriment, thus producing the greatest net public benefit.
There's nothing in there about rewarding authors as a goal in and of itself. Anything authors get isn't a goal of the system, it's just a means to an end. The end is to help the public at large, which would ideally want lots more works, and to have those works in the public domain immediately, since that is where they are of the most public value.
You can, of course, choose to give artists a special reward personally -- a 'tip,' if you will -- but it would be terrible public policy to have anything like that implemented in the law.
If the system is hostile enough toward you to support watermarking, do you really think there is the slightest chance that it will be friendly enough to you to support automatically skipping over commercials?
Slashdot Mirror
Can the studio remix or rerelease or something forever? DO they get another 50 years tacked on?
Setting aside the issue of statutory retroactive extensions, no. They copy copyright whatever copyrightable changes they've made, but that doesn't affect the unchanged material. E.g., you can creatively select and arrange some public domain sound recordings of public domain compositions, and copyright the overall compilation (i.e. that specific selection of songs, in that specific order) but the songs and compositions themselves remain in the public domain.
There's effectively nothing that keeps copyright holders in check anymore; they don't really get in trouble if they put down an inaccurate copyright notice. The down side -- other than the obvious misinformation -- is that it vastly increases transactional costs for people who want to use public domain materials, what with all the copyright searches. And even then, there's no perfect certainty nor safety. It ends up being easier to pay for licenses that you don't need to get, just to be safe.
It's all very sad, and one of the many important issues that reform legislation must address. Term lengths are not the only issue.
Come on, Ray. That post wasn't about this case, it was correcting a blanket statement about the Copyright Act. Besides which, I was talking entirely about First Sale, not prima facie infringement of the distribution right.
Copyright law prohibits distributing unauthorised copies, not lending, leasing, selling, or giving away works in their original published form.
No on both counts. Copyright law prohibits unauthorized distribution of unlawfully made copies; unauthorizedly-but-lawfully-made copies are a-ok.
Also, you cannot rent, lease, or lend, most computer software or sound recordings without authorization, unless you're a non-profit library or school. And if you are, then sometimes you can make your own copies of works and lend those, rather than the originals, again, sans authorization.
The thinking and legal justification goes like this:
Oh, I bet it doesn't.
You get what basically amounts to a 44.1 KHz two channel encoded audio file.
If you make an MP3 out of that, you cannot turn that MP3 back into that exact same 44.1 KHz bit pattern. Therefore the MP3 is not a backup. It is "derivative", and can be argued that it doesn't fall under fair useage that allows you to make a backup copy.
First, a mere loss of fidelity doesn't make a work derivative. There is a very specific definition for what constitutes a derivative work, found at 17 USC 101. Lossy encoding such as this doesn't qualify. Second, a work is a work based upon human perception. If you hand-copy a book, and make some spelling errors, that is the exact same book, just misspelled. It is not a different, derivative book. This is because a human being can tell that it is the same book, rather than a different but related book. Whether a computer could make the same determination, whether the words and punctuation are 100% identical, is totally irrelevant. Third, fair use permits any manner of infringing activity, so long as it is fair, considering the circumstances. There are many fair derivatives, such as parodies. However, no particular use is guaranteed to be, or not to be, a fair use; one parody might be lawful (e.g. 2 Live Crew's 'Pretty Woman') and one parody might be unlawful (e.g. 'Air Pirates'). Likewise, there is no assurance that it is a fair use to make a backup of a work. It might be, it might not be. It depends, and each case must be judged on its own merits. Ditto with regards to making derivatives.
If you made just one copy of the CD, you'd likely be completely covered under fair use.
The number of copies might be relevant, or might not be. It's part of the circumstances, but again, not determinative of anything.
It's a strange concept, because most people think 'if it sounds the same, it's the same song, right?', even though the bits and bytes that make up the sounds are different.
Then I guess 'most people' are better at this than you are.
Yet this is not what the law actually says. IMO amend the statute if that's what you want it to say. Thomas was wrongly decided.
When you get sued/accused by the copyright holder, you reply "Yea I did, but it's Fair Use."
Well... if you can convincingly manage it, you reply "No I didn't, but if I did, it was fair use." No sense in giving them anything you don't have to.
No, while some of the time spent laughing would surely be billed to the client (after all, the laughter is in regard to a client matter), there's only so much of that you can put on the time sheet and get away with it. ;)
Whether it's fair use or not is in a way retroactive
Do you have some caselaw on that point? Remember, an infringement occurs at a specific point in time: the instant of copying, the instant of distribution, etc. Further, infringement is a strict liability offense, so it is totally irrelevant what an infringer intends, save when you're computing damages.
Let us imagine that you copy a CD onto a CDR (without the AHRA applying) in a space-shifting manner. If this is a fair use, then the copy is lawfully made, yes? If it's lawfully made, then section 109 applies, and you can sell that CDR even though it was unauthorizedly made and the copyright holder never sees a penny from it. But it's easy to see how a court could look at the same circumstances and decide the other way.
I agree that in practice a court is likely to weigh fair use in light of events that occurred after the fair use was over and done with, but there really isn't support for this in the law, AFAICT.
Certainly there are plenty of legal scholars going both ways on this, and AFAIK there is no clear caselaw. So I wouldn't make such absolute statements. Fair use is never going to be that clear, and even the courts struggle with it routinely.
Copyright is meant to last for 14 years, renewable for another 14 years
Why 14+14? Why not 7+7+7+7? Or 2+2+2+2+2+2+2, except for software, which is only 2+2?
I'm all for copyright reform, and for reducing term length, and for reintroducing optional renewals, but we do not have to take the 1790 Act as gospel.
What I consider to be the most deranged facet of the US system of government's checks and balances is that is impossible to overturn a bad law without breaking said law, and then pushing that case up to the Supreme Court.
No, Congress can repeal or amend federal laws as they see fit, and they do so all the time. Further, any court can overturn a law, it's just that as you go up the system, and into the federal judiciary, it has a broader effect.
Anyway, the only real solution to the copyright issue is via Congress. The courts are of no particular help here, I assure you.
No, the AHRA lets you make copies of certain works -- provided that you do so in an AHRA-compliant manner, which almost no one ever does, even if they think that they are -- but it doesn't permit distribution. In fact, it's quite cleverly worded in a way that actually slipped by Congress (guess who made the amendment) to prevent exactly this.
But I do feel that, as a content creator myself, I should be able to decide where my hard work is used.
That is your opinion, certainly. But remember, you're not the copyright creator. The public, via its agent, the government (assuming a legitimate government) creates copyright law, consents to it, and grants you a copyright, all for its own self-interest.
While you should feel free to have a say, it's not up to you to enforce that say; it's up to everyone else to respect your wishes, so long as, and to the degree that, it is worth their while.
Think of a similar situation with real property. You could go to some island, plant your personal flag, and claim it as your own. But if your 6 billion plus neighbors ignore you, you're up shit creek.
Oh bullshit, she has a license to listen to the music,
No she doesn't. She owns the CD, and can do any lawful thing with that specific tangible item. Since copyright doesn't prohibit merely listening to a creative work fixed in a copy you own, she can do that. The law views it as interchangeable with, say, playing frisbee with the CD. They're both lawful acts, and uninteresting.
Same deal with downloading MP3s of songs i already own in CD format.. CURRENTLY fair use allows me to do this legally
Maybe, but it is by no means certain, and would probably be a very difficult argument to make. Were I you, I wouldn't be so self-assured.
For the hypo where Alice and Bob each own an authorizedly made copy of the CD, where those copies are fungible, and Alice makes an additional copy which she gifts to Bob, I honestly don't see it mattering whether Alice made the copy using her own copy as the source, or Bob's.
Making a copy and distributing it are both infringing. The likely defense here is fair use. The fair use argument fails on the first three prongs, and hinges on the fourth. For the fourth prong, Bob already owns an authorized copy of the same work that Alice is now giving him a copy of. It is unlikely, then, that Alice's copy would have any effect on the actual or potential value in the market of the work, as the new copies are not substitutes for authorized copies for either of the parties involved.
If Alice and Bob originally owned substantially different authorized copies (e.g. Alice has the DVDA or SACD, and Bob has the Edison cylinder) then maybe there might be something to argue. Even there, I dunno; it would effect the market for an edition of the work, but the work is more than a specific edition.... That could be interesting.
If I come up with a new formula, design, song, movie, or anything else that I personally created, it's mine and I can do whatever I want with it.
I agree with the second part, but not the former (unless by 'mine' you mean 'everyone's').
I can -- and probably will -- charge whatever the free market will bear for the fruit of my hard work. Such is my right, since without me the idea would not have come into being.
I agree, except that again, everyone has that right; it is irrelevant who caused the thing to come into being. For example, I print up copies of Shakespeare, right now, and sell them for as much as the market can bear. It's great that you're so entrepreneurial, but in truth, what you would propose to do isn't terribly impressive.
Now, this isn't to say that I am inevitably averse to giving you a monopoly on the doohickey du jour. But the mere fact that you really really want a monopoly (since no competition and monopoly pricing favors you) isn't going to be enough. After all, I really really don't want you to have a monopoly (since competition and commodity pricing favors the whole world other than you). The trick is finding a way where your self-interest is sated by giving you something of what you want, but the rest of the world's self interest is sated by giving them something of what they want (in practice, they win out more, since they outnumber you and basically get to dictate the terms).
Of course, if you don't like the system, you're free to not do anything noteworthy.
Format conversion is NOT grounds for copyright infringement if it's for personal use. I don't understand why judges have such a hard time with it, it seems pretty simple.
Well, they probably find it difficult because the Copyright Act says nothing of the sort. It is arguably a fair use, but that's by no means certain. Indeed, while that argument might have carried the day back in the 90's, the market has changed enough that a court would have to grapple quite a while with the analysis.
You don't have to do a trademark search. But the process of getting a mark is time-consuming and costly, so it's foolish not to do a search in advance. (Plus it helps to keep you from treading on someone else's toes, which could get you into trouble, force you to relabel all of your goods or services, etc.)
You can do some decent searching for registered federal marks on the PTO website for free. But a thorough search will still cost some money. There are some third party sources that do that sort of work. I would certainly not want to skip over doing a proper search. The repercussions if you've missed something important are too severe.
I can't think of any possible means by which you could prevent people from mailing in a piece of paper requesting a trademark on anything they want.
Well, if you want to deter people from mailing in those papers, a good method might be charging them $375 up front before anyone even looks at it. Federal trademark registrations aren't free.
My take on "property" is that it's rivalrous, which pretty strongly implies tangible.
No, not at all.
For example, suppose that you deposit a $100 bill in the bank. You still own the $100, but the bill itself won't remain in the bank; it will move around where it is needed. What you own is a debt of the bank, to you, in the amount of $100. That's intangible. When you go to the ATM to collect on that debt, you'll probably get five $20's. Until that point though, all you owned was their obligation, not anything tangible. Nevertheless, the debt is rivalrous. You can, for example, give the debt to a third party, in which case the bank owes the money to him instead. But you cannot give the debt in full to someone else while keeping it in full for yourself, and expect the bank to pay out a total of $200, which would be possible were it nonrivalrous.
Just because not all intangibles are rivalrous doesn't mean that none of them are.
They couldn't get the trademark for something they didn't invent.
Yes they can. All you have to do in order to get a trademark is use the mark in commerce to indicate the origin of goods or services so marked, in a manner that is neither generic nor merely descriptive. You don't have to create the mark yourself, or even be the first person to use it. You don't think that Apple invented the word 'apple' do you?
The only possible reason I can see for denying an application for NSFW is that it is merely descriptive without secondary meaning, with regard to the services they would use the mark on.
Fark didn't invent NSFW
So? Trademarks are not patents. It is not necessary to have been the original creator of the mark, or even the first person to use the mark. Neither novelty nor originality are important.
The cost to file a trademark is like $25.
Oops. Look like you mistyped that. The cost to file for a federal trademark is $275 (or more, depending on the details).
You can see the PTO's current fee schedule here: http://www.uspto.gov/web/offices/ac/qs/ope/fee2007september30.htm
[Copyright is] not purely to make money on the individual work. It's also to encourage derivative works by the same author
No, not really. We want to encourage the creation and publication of derivative works period. It doesn't actually matter who creates them. Indeed, the more derivative authors there are for a work, the better. There is no guarantee that the author of the original work will produce any better of a derivative than anyone else. Quantity is the best way to ensure quality. There are plenty of derivative works that are unauthorized, and far superior to anything the original author did. And plenty of authorized derivatives, often by the original author, that suck. The more of them there are, the more opportunity the market has to decide which it prefers.
The only reason that we restrict the creation of derivatives at all -- and we don't entirely, see e.g. covers of songs -- is because it can severely impact the economic value of the original work, and thus the incentive of the underlying copyright. For example, if there was no derivative right, then perhaps fewer authors would write books, because a movie studio could adapt them into movies without permission or payment. The potential value of the film rights is one portion of the overall potential economic value of the work, which is what we're dangling in front of the author to get him to create.
Still, though, the derivative right is really overbroad. The question of what to do about it is one of the most important, yet oft overlooked, in copyright. Personally, I favor making non-infringing any non-commercial act by natural persons. This would enable a significant number of amateur derivatives at least (along with some other things unrelated to this specific issue). It would largely just legitimize the existing masses of people who do this, but it's a start, and would seem not to negatively effect the derivative right.
and to provide for a type of limited-length ownership for the expression itself.
To what end? All you've done there is describe, roughly, _what_ copyright is, but not _why_ it is.
I can tell you for certain that if a person writes one short story and publishes online, they probably don't want someone to come along and make a killing off of a compilation of short stories including their work without some compensation. $25 for something you're not planning to sell is kind of steep.
$45. Which is probably CAN$25 by now!
In your example, I would say that the author there is the worst sort. He's not interested in making money, which is perfectly fine and laudable. But he wants to prevent other people from making money which he has ignored. That is just spiteful. Certainly it's about the worst example you could have chosen to oppose the idea of registration. If the money is important to him, he'll register. If it isn't important to him, he won't. To that author, money is important, just in a negative way: he doesn't want it (or he'd sell his work) and doesn't want anyone else to have it either. Still, since the economic value derived from the copyright is important to him, he's in the group that ought to register. I don't see a reason to have automatic copyrights yet.
What you're saying is essentially that if someone writes that to share with people for free, they have no right to keep someone else from plagiarizing it without paying the fee for registration.
It has nothing to do with whether it's for free or not. It is that the public is best served by works being in the public domain. Preferably sooner than later, and preferably entirely, or at least mostly in the public domain, rather than only partially so. Part of that is that the effects of competition are good for the public. If the author puts it on a free website, then that is good. If a second person publishes it in book form, and sells it in the store, that is also good: now there are more places to get the work from! If the author decides to remove it from the web site, then the fact that
It would be a terrible idea to have anything implemented into law that helped someone profit from their work?
No, only if that was the goal. If the goal is to advance the public interest by promoting the progress of science, and the best means of doing so happens to involve helping authors to profit from their creative works, then I'm entirely in favor of it.
I'm just saying that the goal of copyright is to maximally benefit the public. You're confusing the means for the end.
That if I slave away for a couple of years over a novel, society has the right to rip it away from me because that benefits society?
Not quite. First, there is no right for an author to get a copyright. Congress can grant copyrights, or not, however it sees fit, with only a few limitations on to whom it can make the grant, the duration of the grant, and the subject matter to which the grant pertains. We happen to have a long history of granting copyrights, but we're not obligated to do so. Second, there is no power under which authors can be forced to create works, or publish them; if they want to not create a work, or to keep the work private, that is entirely their decision. However, we can choose to only grant copyrights for published works, say, in order to incentivize authors to do what we want them to do. That is, copyright is basically about carrots, not sticks. Third, it is understood that some authors will only create works because of the incentive of a copyright. Provided that the public benefit derived from granting the copyright exceeds the public cost borne by suffering under the restrictions of the copyright, then it is not only allowable, but actively desirable to grant the copyright. It would be self-defeating for the public to offer copyrights but then not actually grant them when the time came. So why would it be done. (Though this doesn't foreclose the possibility of reforming copyright in such a way that the incentive is lessened; there's a difference between trying to improve our implementation of policy and merely being cruel in a Lucy van Pelt sort of way)
And that, I quote: "any incentive provided should be minimal." Again, wow! No artist should be able to negotiate with their customers an agreed value for their work?
Ah, this is a simple misunderstanding. I'm talking about the incentive of the copyright itself. That is, if an author would be willing to create a work for, say, a five year copyright, then it is not in the public interest to grant him a 100 year copyright; the extra 95 years are wasted. I don't care at all about what prices an author charges his customers. Certain other business practices involving consumers may be against policy or abusive, however, and warrant attention (e.g. DRM, EULAs).
Because that's what copyright law does - allows negotiation. It allows someone who produces a work to set a price on that work. People can then either accept that price or leave it. The producer of the work in turn sells according to the value society is willing to place on their work. Thus society rewards people in accordance with perceived value - a streamlined and efficient system.
Yes, but at the significant cost of imposing a monopoly on that work. The price set by the author is a monopolist price, usually far in excess of the price of copies of that work, which are commodities, in a free market. I'm willing to tolerate state-created monopolies on occasion, but only if it serves the public interest. There is no excuse whatsoever for a state-created monopoly that is bad for the public! Sure, the monopolist probably loves it, but why should I want to support him? Why should everyone else want to support him? Unless it is in our best interest, or unless the government is severely corrupt, it should not happen.
I sincerely hoping you're not going to suggest state funding as an alternative. As to people donating tips to authors or film directors
There is a place for state funding of the arts, and there is a place for pa
If someone produces music or a film that I enjoy, I want that person to be rewarded ... Unless an artist is to hire their own thugs to go around taking back unpaid for copies, or unless people universally pay voluntarily what the artist wants to charge, then some sort of law seems necessary, does it not?
Yes, if that were your goal. But that has never been the goal of copyright.
Copyright is meant to benefit the public, not authors. It benefits the public if authors create and publish more works, so an incentive is created to get authors to create and publish works that they otherwise would not have. (For authors who would've done so anyway, there's no reason to give them a copyright -- the incentive would be wasted on them) It harms the public, however, to have to suffer from restrictions as to what they can do with a work, so the incentive provided should again only be granted where necessary, rather than watefully, and should be minimal, rather than excessive. Ideally, copyright should provide the greatest possible public benefit for the least possible public detriment, thus producing the greatest net public benefit.
There's nothing in there about rewarding authors as a goal in and of itself. Anything authors get isn't a goal of the system, it's just a means to an end. The end is to help the public at large, which would ideally want lots more works, and to have those works in the public domain immediately, since that is where they are of the most public value.
You can, of course, choose to give artists a special reward personally -- a 'tip,' if you will -- but it would be terrible public policy to have anything like that implemented in the law.
If the system is hostile enough toward you to support watermarking, do you really think there is the slightest chance that it will be friendly enough to you to support automatically skipping over commercials?