Copyright isn't a constitutional right. It's a right which may or may not be granted pursuant to a power granted to Congress in the Constitution, but that's not the same thing. If it were, we'd have a constitutional right to federal welfare programs, for example.
It doesn't work like that. A court would look at the big picture, rather than get stuck on any single fraction of it.
Remember that this is a human law, applied to human behavior, with humans interpreting and applying it. The courts are not machines and are not vulnerable to the same sorts of attacks as a purely mechanical system; yet you're acting as if they are. You're also acting as if you're smarter then them, when in fact there are lots of very smart people working in all capacities in the system.
A rule of thumb: if you're clever enough to think of a way to fool the courts, then they're clever enough to see through it, and they won't appreciate your attempt.
I might also add maximizing quality. Perhaps there would be less filler, less also-rans who cannot be supported, but that would simply mean there was higher quality remaining, with less filtering needed to tap that quality. Fewer higher quality works would be more marginally famous.
I actually stick to quantity, as quality is too subjective (particularly for government policy to be involved) and is too often confused for high production values. Besides, Sturgeon is basically right IMO, so the number of quality works, whatever quality would be, is basically proportional to the number of works total. The quantity where copyright is reduced likely will go down somewhat, but I don't think it would too much, as even aggressive reforms would still have authors be able to realize 80-90% of the economic value of works as they can now (since it's so heavily front-loaded; that is, works almost always only make money when new, if ever) and would also see increases in unauthorized derivatives (noncommercial at first, commercial rapidly) which would certainly help to keep the numbers up. And of course, as I said, quantity isn't everything.
Good point re: fashion, as it is a field where there is a lot of creativity, but no copyrights due to the utility doctrine. (Patents are more possible, e.g. design patents, but seem not to have caught on.) It has not appeared to hurt anyone in the industry or outside of it. It may contribute to fashions being ever-changing, but I suspect that they'd do that anyway.
With that loose of a restriction, for instance, you'd get legal legitimacy on file-sharing networks.
Well, provided that the networks were noncommercial. I wouldn't want to see money involved directly or indirectly (e.g. ad-supported networks, trackers, etc.) in order to qualify for the exception. Nor could corporate entities, etc. be involved.
That can still scale up to a damaging level, though.... The practical price or value of any transferable content would be greatly impacted (save for the really rare stuff).
So?
Copyright is not meant to help authors, nor to maximize the economic value of their works. It is meant to help society by promoting the progress of science; any benefit authors receive is just a means to an end. While I agree that there would be both beneficial and detrimental effects of this exception to society, I think that there would be a net benefit, and furthermore that, if coupled with some other reform proposals (e.g. strict formalities, shorter terms) that the benefit would be greater than we currently enjoy. Maximizing the public benefit is the point of copyright, after all.
Besides, I don't think it would have all that much of an impact. First, there is a huge amount of illegal file sharing already, and that illegality doesn't really seem to deter anyone. I don't see that there would be a significant number of people switching to piracy who haven't already. Second, merely because free alternatives exist doesn't mean that people will necessarily opt for them. Plenty of people buy copies of books written by Victor Hugo or Mark Twain even though they're in the public domain and can be easily had for free. Plenty of publishers make money selling those books, as well. Anyone can download television episodes, often even legitimately, but there are still plenty of people paying for cable and watching broadcast shows. Third, this does not touch the market for uses of the work which are in some manner commercial. People would still go to the movies, and the theaters would have to pay to show the film. Radio stations would still have to pay to play music over the air. Bookstores would still have to pay publishers to carry copies of books. Businesses would still have to pay to license works for use in commercials, etc. And non-copyright-related incentives for creating works would go untouched. Fine artists, for example, wouldn't notice this at all.
While there might be some reduction in the number of works created, I think that the benefit of freedom for the public that is gained here would more than make up for it. That's because copyright is also not about maximizing the number of works created, it is about maximizing the public good, and includes both the number of works and also the amount of freedom we have with respect to those works.
the difference is that the file sharers are not getting caught for downloading (which is stealing in most cases). they are getting caught for distribution, which has a harsher punishment under the law.
Wrong twice.
First, downloading is reproduction, which is a form of copyright infringement. Second, distribution, another form of copyright infringement, is subject to exactly the same remedies under the law.
The only interesting differences between them is that uploaders are easier to catch and that they are a better use of resources (being closer to the head of the snake).
no copyright infringement is not stealing, it's much worse if you ask me and people who do it deserve what they get.
Are you saying that you are talking about copyright infringement, and that it is morally worse?
The copyright for the school pictures usually lies with the person who paid for them. They are considered 'works for hire'.
Seems doubtful to me. Works made for hire are defined at 17 USC 101:
A "work made for hire" is-- (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
The pictures probably don't fall under (2) -- most things don't -- so you have to rely on (1). But merely hiring an author to create a work does not mean that there is an employment relationship. The Supreme Court discussed some of the factors that go into determining whether such a relationship exists in CCNV v. Reid:
In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. No one of these factors is determinative.
I'm going to guess that typical school pictures are not works made for hire. The copyright might be assigned by the author, but actually, I kind of doubt that too.
If we're still talking pipe dreams, though, the best solution would be a universal rights clearinghouse with sane royalties for low-volume reproduction.
Maybe, but for personal use, I'd rather just have a blanket exception for everything noncommercial done by natural persons.
I suppose music and videos and audio books would fall into that "do not copy" category per 17 USC 106 but I don't think software does.
We had been talking about music and sound recordings, but actually, software does as well. There is an exception in section 117 permitting the owner of a copy (as distinct from the copyright holder) to make copies and adaptations in order to run the software, and to make any number of backup copies. However, the widespread (and bizarrely pointless, IMO) practice of licensing software precludes this. If I were you, I wouldn't treat most software developers so generously.
Preventing the AUTHOR of something from publishing would be restricting freedom of expresion. Or in the case of Romeo and Juliet preventing anyone from publishing it would be since it is now considered in the public domain.
That's correct. But surely people do not gain a right of free speech as to a particular work when a work enters the public domain; that would conflict with the idea that free speech is an inherent right. Further, it would fail to explain how the author would have a right of free speech when he initially rights the work, if the work isn't in the public domain yet.
What actually happens is that copyright is a negative right. That is, copyright is not a right to actually do anything, but rather is a right to prohibit other people from doing things. The equivalent in real property law is a negative easement
Thus, everyone has a free speech right to use works, but that where a work is copyrighted, we have temporarily suspended that right with regard to that work, at least partially. When the copyright expires, the suspension evaporates and we're back to the natural state of things.
This all goes to show how copyright is not a natural right.
Your comment about the quote is also foolish. Quotation is allowed under copyright law as fair use.
Actually, you completely misunderstood me (and the law). I pointed out in support of the idea that people can express themselves using the words of others (which you claimed was not possible) that many people here on Slashdot express some of their political views by directly quoting Franklin, with whom they are apparently in agreement. I never brought up the issue of whether or not copyright law permitted that, and indeed, it was irrelevant, as I was merely showing how expression with someone else's words is possible. Furthermore, note that 1) short phrases are not copyrightable, so it probably wouldn't matter for that anyway, 2) that the quote in question would be long out of copyright, if ever it could have been copyrighted, and 3) fair use does not allow all quotations, only fair quotations; there have been cases in which quotations have not been fair use.
But I will simply state the obvious for you again. Scanning a book into a PDF file and posting that book on a website is not freedom of expression. Posting a Rip of a copyrighted movie on the Internet is not freedom of expression. Uploading MP3s of someone work without their permission is not freedom of expression. And doing so is no different ethically than violating the GPL.
All of those things fall under the freedom of expression.
The issue is whether they are protected by the law. Much as some of us might like it to be (I myself flirt with the idea but cannot yet bring myself to fully support it), freedom of expression in the US is not absolutely protected.
Copyright is a limit on our freedom of expression, though that freedom nevertheless exists. It might be tolerable and even beneficial, but it is an artificial limit. There's no way to honestly claim otherwise.
Two problems with that. First, the actual damages calculation is likely off, for at the very least, the infringers are at least profiting by not having to pay to get a copy of the work. Second, there are no punitive damages in copyright; statutory damages are compensatory, and there is absolutely nothing that the infringer can do to prevent the plaintiff from opting for them, if he so chooses.
How people come up with these weird ideas is just beyond me.
Freedom of speech is really freedom of expression. One doesn't express themselves through plagiarism.
So you're saying that if I want to print a copy of Romeo and Juliet, that the government can arbitrarily decide to prevent me from doing so, and can in fact exercise prior restraint against me, because I do not have a right to do so?
If you think that, you must be delusional.
Further, I can express myself perfectly fine using the words of others (e.g. how many/. posters dredge up that hoary Ben Franklin quote in order to express themselves?), and copyright infringement is not the same thing as plagiarism anyway. Indeed, plagiarism, where not infringing, is perfectly legal. It might be bad for your reputation, but you can do it all you like.
Your argument has made you look silly. You may wish to do something about that, e.g. learning about the subjects you're talking about before you next open your mouth. Up to you, of course.
Wasn't the $750 minimum originally intended as the scope of unacceptable infringement and the plaintiff was supposed to show that at least that amount of damage had been done per incident?
No.
There are two kinds of money damages in an infringement suit: 1) actual damages and profits, and; 2) statutory damages. The plaintiff can pick whichever he prefers anytime prior to final judgment.
Actual damages and profits are the actual damages suffered by the plaintiff, plus the profits of the defendant which are attributable to the infringement and not already part of the actual damages (to avoid double-counting). However, note that the plaintiff need only prove his own damages and the gross revenue of the defendant. The burden is on the defendant to prove that some of that revenue is not profit, and that some of the remaining profits are not attributable to the infringement. This is sensible as the plaintiff would not have an incentive to winnow out the money he doesn't get, and the defendant knows his own finances better than anyone else.
Statutory damages do not need to be proven at all, within the $750 - $30,000 per work infringed range. The court just picks whatever amount it finds just. The plaintiff can try to prove that the infringement was willful, however, raising the maximum to $150,000. Or -- and this is exclusive of willful infringement -- the defendant can try to prove that the infringement was "innocent," lowering the minimum to $200. It can't be willful and innocent at the same time, of course.
So no, nothing got turned around. In fact, statutory damages have been around since the 1790 Act, and have been a fixture of US copyright law ever since. In fact, it was not until the 1909 Act that the idea of actual damages and profits was first introduced, IIRC. Traditionally it was just a fixed rate, e.g. one dollar per unlawfully made copy, etc. (Of course a dollar was worth a lot more back then)
Yes. Copyright is a strict liability offense, like speeding, or statutory rape. If you don't realize you infringe, didn't mean to infringe, and could not have possibly done anything reasonable that would have prevented you from infringing or resulted in your knowing you'd infringe, it doesn't matter -- you still infringed.
This is known to be problematic for people on the Internet, since computers necessarily make copies (potentially infringing copies, according to the courts) in order to do any damn thing. But it's no so bad -- you'd only have to pay $250-750 per work in such a case, if the jury was quite sympathetic to you.
Perhaps this would be a good time to encourage you to support copyright reforms?
$20 a CD. How many times were the files downloaded?
Doesn't matter.
Statutory damages are computed based on the number of works infringed, not the number of infringements.
That is, if you make one copy of a book or a million copies of the same book, the maximum possible statutory damages would be $150,000. But if you make one copy of a different book as well, then the maximum is $300,000 (i.e. 2 x $150,000).
The real issue, which apparently didn't come up much here, is whether serving files is in fact distribution, or something else, and whether it has to actually occur, or if merely making it possible without it actually occurring is sufficient. So I suppose there is some dispute as to whether zero downloads should count. Anything more, though, there's no argument.
For ALL facts in this case, as with most civil suits, the standard of proof is a preponderance of the evidence. That is, whether something is more likely than not, even if only barely so.
So, if it is her computer at her house, and that's all you have to go on, would you think that it is more likely that she used it to do these things, or do you think that it is more likely that someone else did? It doesn't matter whether it's possible. It doesn't matter whether you think the second gunman used the computer 49% of the time.
It all comes down to what's probable.
And further, the jury has the freedom to believe or disbelieve evidence as they see fit. If a dozen nuns testify on behalf of a lovable defendant, and one slimy informer claims that the defendant did it, the jury can legitimately believe the informer and ignore the nuns (on the basis that they're wrong or perhaps even lying). This is their job, to weigh evidence and decide what the facts are.
If I lost both legs because the RIAA cut them off because I was protesting in front of their headquarters, and I sued them for damages, I would never have such an advantage. Since I sit in a chair all day to earn a living, the judge would only award me enough to pay my medical bills, and my wages while I was in the hospital. I could cry "but they cut my legs off!! They should be punished!" all I want to, but in most states, the judge would just be like, "Ok, show me your bills and your pay stubs, and you'll get that much.".
Unless it happened at work, in which case you might merely get the amounts specified in the workers' comp laws, which have been around in the US since the early 20th century. Statutory amounts for remedies are not a new idea.
Perhaps a copyright lawyer will come by and put me in my place.
Okay.
In the 1976 Act the amounts were $250 - $10,000, and could be lowered to $100 or raised to $50,000. Congress amended this in 1988, making the new amounts $500 - $20,000, $250, and $100,000. Congress amended it again in 1999, making the new amounts $750 - $30,000, left the minimum possible floor at $250, and $150,000.
I'm thinking that the forces that got Congress to raise the statutory damages in 1999 were well aware of how cheaply copying could be done for. Likewise, the idea that not all copying was commercial and that individuals acting noncommercially could run afoul of copyright laws was well known at that time.
Normally the damages for copyright infringement are a few hundred dollars ($300 max rings a bell). In the case of willful infringement, however, damages can increase up to $150,000 per incident.
The normal range for statutory damages is $750 to $30,000. The defendant can try to get the minimum lowered to as little as $200 (in ordinary cases) though this is usually difficult. Or (as these are mutually exclusive) the plaintiff can try to get the maximum raised to as much as $150,000, and usually has an easier time of it. This is covered at 17 USC 504.
He does but he will have to get them changed in multiable countries since the US signed the Berne Convention.
Not at all. We need merely get the US to withdraw from the Berne Convention. It's not as though joining it is irrevocable.
No Authors do have a right to copyrights because they have been granted those rights by copyright law. How else do you define rights? Maybe some certain unalienable human rights? I do happen to agree with that
I was speaking of natural rights, yes. There can, of course, be artificial rights, or not, as society and the government that serves it sees fit.
I feel that one of those rights is to some right to profit and control that which you create
Then you must not agree with the right of free speech and press. After all, copyright consists of prohibiting people from exercising those rights when they repeat what someone else has created. They cannot both be natural rights. As it happens, the former is, the latter is not. That doesn't mean that copyright shouldn't exist, but that it needn't necessarily exist and that it may be subject to change.
In fact by law you have the right to make a backup copy of any disc you have purchased.
That's not actually true.
In fact, you don't have the right to make any copies of copyrighted works on a CD without permission, per 17 USC 106. There is an exception to this at section 107, but it does not always apply it depends on the circumstances and is very vague. There is another quasi-exception to this at section 1008, but it only works under very specific circumstances, though not vague ones, and virtually no one ever bothers to do what is necessary to be protected by it.
And even if you did manage to fall within the protection of sections 107 or 1008, you still might be breaking some other laws, e.g. circumvention in section 1201, with which neither 107 nor 1008 helps you.
Slashdot Mirror
Copyright isn't a constitutional right. It's a right which may or may not be granted pursuant to a power granted to Congress in the Constitution, but that's not the same thing. If it were, we'd have a constitutional right to federal welfare programs, for example.
It doesn't work like that. A court would look at the big picture, rather than get stuck on any single fraction of it.
Remember that this is a human law, applied to human behavior, with humans interpreting and applying it. The courts are not machines and are not vulnerable to the same sorts of attacks as a purely mechanical system; yet you're acting as if they are. You're also acting as if you're smarter then them, when in fact there are lots of very smart people working in all capacities in the system.
A rule of thumb: if you're clever enough to think of a way to fool the courts, then they're clever enough to see through it, and they won't appreciate your attempt.
I might also add maximizing quality. Perhaps there would be less filler, less also-rans who cannot be supported, but that would simply mean there was higher quality remaining, with less filtering needed to tap that quality. Fewer higher quality works would be more marginally famous.
I actually stick to quantity, as quality is too subjective (particularly for government policy to be involved) and is too often confused for high production values. Besides, Sturgeon is basically right IMO, so the number of quality works, whatever quality would be, is basically proportional to the number of works total. The quantity where copyright is reduced likely will go down somewhat, but I don't think it would too much, as even aggressive reforms would still have authors be able to realize 80-90% of the economic value of works as they can now (since it's so heavily front-loaded; that is, works almost always only make money when new, if ever) and would also see increases in unauthorized derivatives (noncommercial at first, commercial rapidly) which would certainly help to keep the numbers up. And of course, as I said, quantity isn't everything.
Good point re: fashion, as it is a field where there is a lot of creativity, but no copyrights due to the utility doctrine. (Patents are more possible, e.g. design patents, but seem not to have caught on.) It has not appeared to hurt anyone in the industry or outside of it. It may contribute to fashions being ever-changing, but I suspect that they'd do that anyway.
Yeah. The best summary of the OJ case that I heard was that the LAPD had tried to frame a guilty man.
With that loose of a restriction, for instance, you'd get legal legitimacy on file-sharing networks.
... The practical price or value of any transferable content would be greatly impacted (save for the really rare stuff).
Well, provided that the networks were noncommercial. I wouldn't want to see money involved directly or indirectly (e.g. ad-supported networks, trackers, etc.) in order to qualify for the exception. Nor could corporate entities, etc. be involved.
That can still scale up to a damaging level, though.
So?
Copyright is not meant to help authors, nor to maximize the economic value of their works. It is meant to help society by promoting the progress of science; any benefit authors receive is just a means to an end. While I agree that there would be both beneficial and detrimental effects of this exception to society, I think that there would be a net benefit, and furthermore that, if coupled with some other reform proposals (e.g. strict formalities, shorter terms) that the benefit would be greater than we currently enjoy. Maximizing the public benefit is the point of copyright, after all.
Besides, I don't think it would have all that much of an impact. First, there is a huge amount of illegal file sharing already, and that illegality doesn't really seem to deter anyone. I don't see that there would be a significant number of people switching to piracy who haven't already. Second, merely because free alternatives exist doesn't mean that people will necessarily opt for them. Plenty of people buy copies of books written by Victor Hugo or Mark Twain even though they're in the public domain and can be easily had for free. Plenty of publishers make money selling those books, as well. Anyone can download television episodes, often even legitimately, but there are still plenty of people paying for cable and watching broadcast shows. Third, this does not touch the market for uses of the work which are in some manner commercial. People would still go to the movies, and the theaters would have to pay to show the film. Radio stations would still have to pay to play music over the air. Bookstores would still have to pay publishers to carry copies of books. Businesses would still have to pay to license works for use in commercials, etc. And non-copyright-related incentives for creating works would go untouched. Fine artists, for example, wouldn't notice this at all.
While there might be some reduction in the number of works created, I think that the benefit of freedom for the public that is gained here would more than make up for it. That's because copyright is also not about maximizing the number of works created, it is about maximizing the public good, and includes both the number of works and also the amount of freedom we have with respect to those works.
I don't need a lawyer
And that is where I disagree with you.
Did you know musicians existed before the 1930s when copyrights started applying to music?
I believe you mean the 1830's.
the difference is that the file sharers are not getting caught for downloading (which is stealing in most cases). they are getting caught for distribution, which has a harsher punishment under the law.
Wrong twice.
First, downloading is reproduction, which is a form of copyright infringement. Second, distribution, another form of copyright infringement, is subject to exactly the same remedies under the law.
The only interesting differences between them is that uploaders are easier to catch and that they are a better use of resources (being closer to the head of the snake).
no copyright infringement is not stealing, it's much worse if you ask me and people who do it deserve what they get.
Are you saying that you are talking about copyright infringement, and that it is morally worse?
Seems doubtful to me. Works made for hire are defined at 17 USC 101:
The pictures probably don't fall under (2) -- most things don't -- so you have to rely on (1). But merely hiring an author to create a work does not mean that there is an employment relationship. The Supreme Court discussed some of the factors that go into determining whether such a relationship exists in CCNV v. Reid:
I'm going to guess that typical school pictures are not works made for hire. The copyright might be assigned by the author, but actually, I kind of doubt that too.
If we're still talking pipe dreams, though, the best solution would be a universal rights clearinghouse with sane royalties for low-volume reproduction.
Maybe, but for personal use, I'd rather just have a blanket exception for everything noncommercial done by natural persons.
I suppose music and videos and audio books
would fall into that "do not copy" category per
17 USC 106 but I don't think software does.
We had been talking about music and sound
recordings, but actually, software does as well.
There is an exception in section 117 permitting
the owner of a copy (as distinct from the
copyright holder) to make copies and adaptations
in order to run the software, and to make any
number of backup copies. However, the widespread
(and bizarrely pointless, IMO) practice of
licensing software precludes this. If I were you,
I wouldn't treat most software developers so
generously.
Preventing the AUTHOR of something from publishing would be restricting freedom of expresion. Or in the case of Romeo and
Juliet preventing anyone from publishing it would be since it is now considered in the public domain.
That's correct. But surely people do not gain a right of free speech as to a particular work when a work enters the public
domain; that would conflict with the idea that free speech is an inherent right. Further, it would fail to explain how the
author would have a right of free speech when he initially rights the work, if the work isn't in the public domain yet.
What actually happens is that copyright is a negative right. That is, copyright is not a right to actually do anything, but
rather is a right to prohibit other people from doing things. The equivalent in real property law is a negative easement
Thus, everyone has a free speech right to use works, but that where a work is copyrighted, we have temporarily suspended that
right with regard to that work, at least partially. When the copyright expires, the suspension evaporates and we're back to
the natural state of things.
This all goes to show how copyright is not a natural right.
Your comment about the quote is also foolish. Quotation is allowed under copyright law as fair use.
Actually, you completely misunderstood me (and the law). I pointed out in support of the idea that people can express
themselves using the words of others (which you claimed was not possible) that many people here on Slashdot express some of
their political views by directly quoting Franklin, with whom they are apparently in agreement. I never brought up the issue
of whether or not copyright law permitted that, and indeed, it was irrelevant, as I was merely showing how expression with
someone else's words is possible. Furthermore, note that 1) short phrases are not copyrightable, so it probably wouldn't
matter for that anyway, 2) that the quote in question would be long out of copyright, if ever it could have been copyrighted,
and 3) fair use does not allow all quotations, only fair quotations; there have been cases in which quotations have not been
fair use.
But I will simply state the obvious for you again.
Scanning a book into a PDF file and posting that book on a website is not freedom of expression.
Posting a Rip of a copyrighted movie on the Internet is not freedom of expression.
Uploading MP3s of someone work without their permission is not freedom of expression.
And doing so is no different ethically than violating the GPL.
All of those things fall under the freedom of expression.
The issue is whether they are protected by the law. Much as some of us might like it to be (I myself flirt with the idea but
cannot yet bring myself to fully support it), freedom of expression in the US is not absolutely protected.
Copyright is a limit on our freedom of expression, though that freedom nevertheless exists. It might be tolerable and even
beneficial, but it is an artificial limit. There's no way to honestly claim otherwise.
Yes, I've heard the argument, and I hope it works out (though n.b. that there are no multipliers here). I eagerly await an attempt at this.
Two problems with that. First, the actual damages calculation is likely off, for at the very least, the infringers are at least profiting by not having to pay to get a copy of the work. Second, there are no punitive damages in copyright; statutory damages are compensatory, and there is absolutely nothing that the infringer can do to prevent the plaintiff from opting for them, if he so chooses.
How people come up with these weird ideas is just beyond me.
Well, I'm not the only copyright lawyer here. And we can defeat both ninjas and pirates (both kinds).
Freedom of speech is really freedom of expression. One doesn't express themselves through plagiarism.
/. posters dredge up that hoary Ben Franklin quote in order to express themselves?), and copyright infringement is not the same thing as plagiarism anyway. Indeed, plagiarism, where not infringing, is perfectly legal. It might be bad for your reputation, but you can do it all you like.
So you're saying that if I want to print a copy of Romeo and Juliet, that the government can arbitrarily decide to prevent me from doing so, and can in fact exercise prior restraint against me, because I do not have a right to do so?
If you think that, you must be delusional.
Further, I can express myself perfectly fine using the words of others (e.g. how many
Your argument has made you look silly. You may wish to do something about that, e.g. learning about the subjects you're talking about before you next open your mouth. Up to you, of course.
Wasn't the $750 minimum originally intended as the scope of unacceptable infringement and the plaintiff was supposed to show that at least that amount of damage had been done per incident?
No.
There are two kinds of money damages in an infringement suit: 1) actual damages and profits, and; 2) statutory damages. The plaintiff can pick whichever he prefers anytime prior to final judgment.
Actual damages and profits are the actual damages suffered by the plaintiff, plus the profits of the defendant which are attributable to the infringement and not already part of the actual damages (to avoid double-counting). However, note that the plaintiff need only prove his own damages and the gross revenue of the defendant. The burden is on the defendant to prove that some of that revenue is not profit, and that some of the remaining profits are not attributable to the infringement. This is sensible as the plaintiff would not have an incentive to winnow out the money he doesn't get, and the defendant knows his own finances better than anyone else.
Statutory damages do not need to be proven at all, within the $750 - $30,000 per work infringed range. The court just picks whatever amount it finds just. The plaintiff can try to prove that the infringement was willful, however, raising the maximum to $150,000. Or -- and this is exclusive of willful infringement -- the defendant can try to prove that the infringement was "innocent," lowering the minimum to $200. It can't be willful and innocent at the same time, of course.
So no, nothing got turned around. In fact, statutory damages have been around since the 1790 Act, and have been a fixture of US copyright law ever since. In fact, it was not until the 1909 Act that the idea of actual damages and profits was first introduced, IIRC. Traditionally it was just a fixed rate, e.g. one dollar per unlawfully made copy, etc. (Of course a dollar was worth a lot more back then)
Yes. Copyright is a strict liability offense, like speeding, or statutory rape. If you don't realize you infringe, didn't mean to infringe, and could not have possibly done anything reasonable that would have prevented you from infringing or resulted in your knowing you'd infringe, it doesn't matter -- you still infringed.
This is known to be problematic for people on the Internet, since computers necessarily make copies (potentially infringing copies, according to the courts) in order to do any damn thing. But it's no so bad -- you'd only have to pay $250-750 per work in such a case, if the jury was quite sympathetic to you.
Perhaps this would be a good time to encourage you to support copyright reforms?
$20 a CD. How many times were the files downloaded?
Doesn't matter.
Statutory damages are computed based on the number of works infringed, not the number of infringements.
That is, if you make one copy of a book or a million copies of the same book, the maximum possible statutory damages would be $150,000. But if you make one copy of a different book as well, then the maximum is $300,000 (i.e. 2 x $150,000).
The real issue, which apparently didn't come up much here, is whether serving files is in fact distribution, or something else, and whether it has to actually occur, or if merely making it possible without it actually occurring is sufficient. So I suppose there is some dispute as to whether zero downloads should count. Anything more, though, there's no argument.
It is certainly possible. But who cares?
For ALL facts in this case, as with most civil suits, the standard of proof is a preponderance of the evidence. That is, whether something is more likely than not, even if only barely so.
So, if it is her computer at her house, and that's all you have to go on, would you think that it is more likely that she used it to do these things, or do you think that it is more likely that someone else did? It doesn't matter whether it's possible. It doesn't matter whether you think the second gunman used the computer 49% of the time.
It all comes down to what's probable.
And further, the jury has the freedom to believe or disbelieve evidence as they see fit. If a dozen nuns testify on behalf of a lovable defendant, and one slimy informer claims that the defendant did it, the jury can legitimately believe the informer and ignore the nuns (on the basis that they're wrong or perhaps even lying). This is their job, to weigh evidence and decide what the facts are.
If I lost both legs because the RIAA cut them off because I was protesting in front of their headquarters, and I sued them for damages, I would never have such an advantage. Since I sit in a chair all day to earn a living, the judge would only award me enough to pay my medical bills, and my wages while I was in the hospital. I could cry "but they cut my legs off!! They should be punished!" all I want to, but in most states, the judge would just be like, "Ok, show me your bills and your pay stubs, and you'll get that much.".
Unless it happened at work, in which case you might merely get the amounts specified in the workers' comp laws, which have been around in the US since the early 20th century. Statutory amounts for remedies are not a new idea.
Perhaps a copyright lawyer will come by and put me in my place.
Okay.
In the 1976 Act the amounts were $250 - $10,000, and could be lowered to $100 or raised to $50,000. Congress amended this in 1988, making the new amounts $500 - $20,000, $250, and $100,000. Congress amended it again in 1999, making the new amounts $750 - $30,000, left the minimum possible floor at $250, and $150,000.
I'm thinking that the forces that got Congress to raise the statutory damages in 1999 were well aware of how cheaply copying could be done for. Likewise, the idea that not all copying was commercial and that individuals acting noncommercially could run afoul of copyright laws was well known at that time.
Normally the damages for copyright infringement are a few hundred dollars ($300 max rings a bell). In the case of willful infringement, however, damages can increase up to $150,000 per incident.
The normal range for statutory damages is $750 to $30,000. The defendant can try to get the minimum lowered to as little as $200 (in ordinary cases) though this is usually difficult. Or (as these are mutually exclusive) the plaintiff can try to get the maximum raised to as much as $150,000, and usually has an easier time of it. This is covered at 17 USC 504.
He does but he will have to get them changed in multiable countries since the US signed the Berne Convention.
Not at all. We need merely get the US to withdraw from the Berne Convention. It's not as though joining it is irrevocable.
No Authors do have a right to copyrights because they have been granted those rights by copyright law. How else do you define rights? Maybe some certain unalienable human rights? I do happen to agree with that
I was speaking of natural rights, yes. There can, of course, be artificial rights, or not, as society and the government that serves it sees fit.
I feel that one of those rights is to some right to profit and control that which you create
Then you must not agree with the right of free speech and press. After all, copyright consists of prohibiting people from exercising those rights when they repeat what someone else has created. They cannot both be natural rights. As it happens, the former is, the latter is not. That doesn't mean that copyright shouldn't exist, but that it needn't necessarily exist and that it may be subject to change.
In fact by law you have the right to make a backup copy of any disc you have purchased.
That's not actually true.
In fact, you don't have the right to make any copies of copyrighted works on a CD without permission, per 17 USC 106. There is an exception to this at section 107, but it does not always apply it depends on the circumstances and is very vague. There is another quasi-exception to this at section 1008, but it only works under very specific circumstances, though not vague ones, and virtually no one ever bothers to do what is necessary to be protected by it.
And even if you did manage to fall within the protection of sections 107 or 1008, you still might be breaking some other laws, e.g. circumvention in section 1201, with which neither 107 nor 1008 helps you.