No. And remember that the US required authors to specially seek out copyrights, instead of getting them automatically, from 1790 through to 1978. The system worked just fine. We never should've changed it merely because other countries did things differently; it's as stupid as jumping off a cliff just because all the other kids do it too.
The 1790 Copyright Act actually had a term of 14 years, with an additional term of 14 years if the author was still alive at the end of the first term and sought the extension; thus, 14+14. I'd have to delve into it, but I'm pretty sure that the lengths are roughly based on periods of time that were significant for guilds, due to the sort of tortured way that these numbers were arrived at.
But as for generational length, Jefferson, writing to Madison regarding the drafting of the Constitution, actually worked out a 19 year term using French actuarial tables (he was our ambassador to France at the time). He thought this was better, but the then-traditional 14+14 term won out.
In any event, I disagree. The term ought to be whatever best serves the public interest. I don't care what number of years was best for the people of the late 18th century; I care about what overall configuration of copyright laws -- both term length and scope -- is best for us, now, living in the early 21st century.
Personally, I suspect this would be lots of very short terms -- 1 to 5 years long, which have to frequently be renewed to reach a maximum of 20 to 25 years, and where the number of renewals might be less depending on the kind of work involved (e.g. there's no reason for software to have such a long maximum copyright; 5 years would likely be sufficient).
And of course, there are a lot of other essential reforms besides term length. I really fear the way people concentrate on this. If a term reform came to pass, but nothing else, we'd still be in trouble. We need comprehensive reform, of which term length actually is not the most critical part.
Ideally a copyright should only limit your right to copy.
I disagree. There are many rights that exist with respect to works; copyright should consist of whatever combination of rights, exceptions to those rights, duration, etc. that best serves the public interest. This could include the reproduction right and other rights, or include rights other than reproduction. There's no reason to marry ourselves to the reproduction right alone.
I think it would be a lot more simple and fairer if we reverted to using simple contracts(license agreements) combined with our copyrights which are well understood and well administered within a common law system.
Perhaps. But I think that it is important to bar all (or at least nearly all) adhesive contracts, in that case. If two parties actually sit down and negotiate something, then that's fine. But where a contract is standardized, and presented on a take-it-or-leave-it basis (as with EULAs, say), then I don't think that there's really any fairness.
Additionally, we shouldn't permit contracts to defeat the public interest. For example, an author should not be able to use contracts to effectively prevent his work from meaningfully entering the public domain by limiting access to the works.
Besides, the default rules of copyright should really be crafted such that there is rarely any need for contracts or licensure in normal cases involving the segment of the public that is the audience for the work.
No, Hong Kong was ceded to the UK in the 1840's. Some additional territory in Kowloon was ceded in the 1860's. It was the New Territories that were merely leased in 1898 for 99 years.
Nevertheless, you do have that choice. Further, since punitive damages are not allowed for breech, you'll find that they're not typically allowed as terms of the contract; the precise nature and fairness of any sort of contractually-set damages for breech are key as to whether or not they'll hold up. The effect of a breech might result in some other sort of tort, but it also might not; it depends on the specific circumstances.
For a membership store, I'd be shocked if anything happened to the customer beyond merely canceling the membership. Of course, it's a good idea to read contracts before you agree to them, and to keep a copy of them, so that you aren't surprised later.
Not really. Once you have signed the contract, they are no longer voluntary but mandatory and you cannot voluntarily decline.
No, you really can. Contracts are not inviolate or holy or anything; if either side wants to breech a contract at any time, then they are always absolutely free to do so. There might be some sort of damages to pay to the other side, but typically that's all. Indeed, the legal system encourages parties to breech if, taking into consideration the effects of it, it is sensible to do so. It's not viewed as bad or worthy of punishment or anything.
Could the store win in court on the argument that breech is reasonable grounds to invoke the shopkeeper's privilege? Personally, I would doubt it.
Certainly, your contractual relationship with them would be over, so they would treat you as any other non-member and not let you shop there. And they could likely refuse to let you set up a new contract with them. But that's not really interesting, and if you're going to breech, you ought to weigh which outcome (consenting and continuing to shop there, or not consenting and not coming back) is better for you.
Unless you are shopping in a membership store where you signed a contract allowing such searches they are **voluntary**
Then that too would be voluntary. If you don't want to show your receipt at such a store, then you'd just breech the contract. There's nothing wrong with that, it'd just tend to preclude you from shopping there again.
Any thoughts on how to keep goods from leaving the store unauthorized, without violating someone's rights?
The traditional way?
The tort of false imprisonment consists of intentionally confining a victim without his consent, by certain means (e.g. physical boundaries, unlawful force, unlawful threats of force). But there is an exception to this, with regard to shoplifting, known as the shopkeeper's privilege. In order for a specific act of detaining someone to qualify, the shopkeeper has to have a reasonable suspicion that the detainee has shoplifted, he can only use a reasonable degree of force and restrain them in a reasonable manner, he can only detain them long enough to carry out a reasonable investigation (probably no longer than about 15 minutes), and it needs to take place on or quite close to the premises (you can't hunt someone down hours or miles later). So long as these requirements are met, the shopkeeper is protected, even if he made a mistake. The important thing is that he acted reasonably.
That's the common law rule; there are statutory forms of the privilege in some jurisdictions, but they're likely pretty similar.
The issue here is this: given that it is not reasonable to suspect every single customer merely because they are exiting the store, but given that it is lawful to ask exiting customers to voluntarily show their receipts, is it reasonable to suspect someone of shoplifting for no other reason whatsoever than that they did not comply with the voluntary showing of their receipt?
Personally, I would think not. While the damages that this guy personally suffered are relatively minor, if this is a matter of policy for the entire store or chain of stores, and if it is a common policy in other stores, then punitive damages might be called for to discourage this store (and others, by means of cautionary example) from having such policies in future.
one possible remedy would be for the copyright of the derivative work to revert to the original work's creator.
No, that would not be possible. A work which includes derivative material used unlawfully is uncopyrightable in that portion per 17 USC 103(a). And forcibly handing over the copyright to original material would be an extreme and likely unacceptable remedy.
No it's not. The amount and substantiality of the work are factors, but not determinative on their own. Sometimes a fair use can involve an entire work, e.g. certain instances of time or space shifting. Sometimes using only excerpts is nevertheless unfair, as in Harper & Row v. Nation, where excerpts from a book were published unfairly.
What is necessary is to look at the use overall, which typically will include looking at the four enumerated factors. The analysis isn't mechanical at all. Even if most of the factors weigh against the user, the use can nevertheless be fair. Even though it sounds like a tautology, a fair use is a use that is fair; there's no bright line rules as to what that will be, and it varies with the circumstances surrounding each individual use. That is, not each type of use, but each specific use. If Alice and Bob each are parodists, say, and each makes a parody of a work, there's nothing to prevent Alice's work from being fair, while Bob's is unfair. You have to look at each independently.
Otherwise, what's stopping me from copying an entire movie, then adding "I liked this movie" at the end.
Do you think that it would be a fair use? Without knowing more about your hypothetical situation, I really couldn't say.
In large parts of the world you'd practicly [sic] have to hire your own investigator force to curb piracy, who'd very quickly run into civil rights issues. [The pirates] are the people making money today, who'd make a killing if you cut the penalties and the ability to enforce it, since investigators can't require ID, make arrests or anything of the sorts.
Well, even today, even in the US, which has criminal infringement statutes on the books, nearly all enforcement and investigation is handled privately and through the civil courts. Typically, what will happen is that when a group of pirates is found, the copyright holder will request ex parte a temporary injunction which gives them the opportunity to seize the pirated materials. Then proper litigation will begin and a longer-lasting injunction will be issued, typically culminating in a court order to have that stuff destroyed, along with damage awards. Often the actual bust will be carried out by local law enforcement. And to prevent this from being used improperly by copyright holders, they're likely to have to post a bond which will be used to cover the damage caused to the pirates if it turns out that they were not doing anything illegal.
It works reasonably well. I don't see why you'd need to arrest the pirates; it doesn't help make the copyright holders whole again, nor does it help society, which is only really interested in helping the copyright holders be whole again so as to preserve their incentive.
Actually, the United States Code has had provisions for criminal copyright infringement since at least 1982. It's not really anything new.
1897, IIRC. But not all copyright infringement is criminal.
Nevertheless, I don't think that it should be criminalized. The societal harm of infringement is too minor -- after all, it merely reduces the benefit to society of copyright because the author in question isn't getting enough compensation to incentivize him. The civil remedies revolve around compensation, however, solving that issue, while the criminal penalties don't restore the social benefits at all. Nor do the penalties for infringement seem to have any effect as a deterrent. And I sincerely doubt that society gains any sort of value out of retribution for copyright infringement.
Patent infringement is not criminal. Trademark infringement traditionally has not been, and that only recently changed, and is likely a bad idea in most cases (I could see it if someone was proximately harmed by it, but it's hard to see how existing criminal statutes wouldn't already apply adequately). Why should copyright be special?
Thus, although it is a contract violation, it is arguably beyond the scope of US copyright law per se to install a single copy of software on multiple computers, possibly by different owners, as long as the medium changes ownership on each sale. (I.e. I install it on my machine, sell you the disk....). EULA's are designed to prevent this poblem.
No, that's actually infringing, right there. Remember, only the owner of a copy of a program is able to make non-infringing copies and adaptations, including into RAM. Thus, if you sell your copy of the program, you can no longer lawfully use the program on your own machine.
The big issue is this: Software development is expensive. In order to recoup costs associated, one must find some way to spread the cost around.... [W]hen you publish software, it is desirable to be able to distribute the software in such a way as to distribute the cost of development among the users in a fair and equitable way. Sofware licensing accomplishes this.
That doesn't really explain anything. All I'm saying is that when a publisher distributes software to end users who will not do anything with the software other than installing it, running it, and backing it up, that they may as well just sell the copies of the software to the users, rather than engage in this farce of licensing. Books are sold, records are sold, movies are sold, and many of those are more expensive to make than software is. What's so special about software, in light of the fact that the law permits owners of copies of it to make such copies and adaptations as necessary to run it, and to make backups?
I'm not advocating FOSS here. I'm just saying that there appear to be no advantages to claiming that there is a license when someone goes to the store and picks up a copy of a program in a cardboard box off of the shelf, as opposed to letting it be a regular sale, as with anything else.
Nevertheless, the previous poster is correct. A mere license, standing alone, is unreliable. It can be unilaterally withdrawn by the licensor, at any time, for any reason, or for no reason at all. At most you would be able to fight to get a bit of time to shut down whatever you were doing in reliance on that license gracefully, but quickly, rather than having to stop instantly. It's like someone inviting you onto their land, then ordering you to leave.
So essentially, if Linus has a change of heart one day and says, that his portions of the Linux kernel are no longer GPL'ed, then this means it is no longer so, and worse still, that none of the portions based on his work can continue to be distributed either, most likely, which results in serious problems.
That's no good. And it's particularly contrary to the goals of the FSF in that if someone obtained a copyright to some important piece of code, they could make a lot of mischief by terminating the license. Sure, a replacement would come along, but great harm would be suffered in the meantime.
The GPL really is a contract, however, in that it imposes a contingent obligation on people who work under it. In order to receive the benefits of the GPL, a developer has to promise that he will abide by the requirements of the GPL (e.g. his distributions will be under the GPL). It doesn't obligate him to make distributions, but that just means that his obligation doesn't trigger until some contingency is met; it's still there, however. In exchange, you get an assurance that your rights under the GPL won't be arbitrarily terminated. It's a classic binding exchange of promises. One of those promises is a copyright license, but that doesn't mean that we stop analyzing the GPL there.
No, that's incorrect. While there have been some cases upholding EULAs, as well as some cases the other way, US copyright law is clear that if you own a copy of a computer program, then you can make copies and adaptations in order to use the program, and that you can make backup copies (of the program -- there's nothing about other types of works, e.g. movies on DVD). The relevant statute is 17 USC 117.
There is really no need for software licenses for ordinary end users, IMO, and no one I've ever talked to has come up with a reason why they'd be needed as opposed to just relying on the Copyright Act. In some circumstances, a license and contract would be useful, e.g. for developers who want to modify the program and distribute their version, or for site licensing. But as for just going to the store and getting a CD in a box, not so much.
Jefferson changed the language he swiped from Locke, because Jefferson didn't think that there were natural rights to property beyond what a person can defend on their own.
That's an interesting position to take. Personally, I think that copyright is essentially an amoral field, and that we ought to only deal with it through a utilitarian lens.
However, if I had to look at it from a moral perspective, I would come to the opposite conclusion; it is moral to use, disseminate, preserve, and improve creative works and human knowledge, and immoral to let it gather dust, to fail to be spread to those who desire it or would be improved by it, to let it be lost, and to fail to create new works which happen to be based upon existing works. In some cases this wouldn't be true, e.g. if someone wants to keep private information about themselves private, then it wouldn't be right to violate that. But generally with copyright we're talking about non-private information such as published works, works due to be published, and works which cannot really be characterized as private but which were not really expected to be published due to external factors such as being felt unlikely to turn a profit.
I'm interested as to why you think that the whims of a single person, merely because he is the creator of a work, should be more important than the value to humanity of making sure that that work helps the greatest number of people for the remainder of time.
I would argue that non-commercial piracy performed by natural persons is not worth suing over, and should not be illegal. Copyright is an amoral, utilitarian law; if most people seem to want to engage in piracy, then it's better to let them lawfully do so, provided that it's generally accepted that this may have side effects (e.g. less of an investment made in music by publishers, and so less commercially produced and released music) which will have to be accepted as part of the deal. In this, copyright is more like Prohibition, which many at the time thought was a good idea, but turned out to just not work, and to be more trouble than it was worth, than something which is worth having even if unpopular, e.g. civil rights for minorities that everyone hates.
On the whole, then, I wouldn't be bothered by the presence of watermarks, provided that there were no secrets connected with how they work, so that individuals could trivially strip them out to maintain their privacy, and that natural persons acting non-commercially could do as they please, and there was nothing mandatory about them (developers aren't required to waste resources implementing them if they don't want to; player software that doesn't support the watermarks can still play the files properly. etc.)
The problem is that not all educational uses are fair uses. You have to look at the circumstances underlying each individual use, and judge them on a case by case basis. You really can't make accurate blanket statements as to what is and is not a fair use.
So while I'm sure that it often is a fair use to make a copy of an article for the members of the class to read in the library, it isn't necessarily so. Likewise, while it may often be that a student making a copy of an article he was assigned to read is a fair use, it isn't always the case that it will be.
(Also fair use doesn't care about the number of copies made, so long as it remains fair; there's nothing in there about one copy always being fair and more copies being unfair, etc. Really, it's just something to consider when looking at the fourth factor.)
I have no desire to dig through the actual statutes to cite chapter and verse where this comes from in the Act, but I trust it's there.
I'd be interested to know where they're getting this from, actually. It could very well be a fair use, though you'd have to argue it anew each and every time, since fair use depends on the circumstances. And in some limited situations, a school library could copy a work. And there could be some sort of license that the school has negotiated with a clearinghouse, or some other body with the right to sublicense, but this wouldn't be true for every single work. Otherwise, I think that this is more wishful thinking than accurate guidelines.
A lawfully made copy can certainly be put in a library and used by patrons of the library. Making additional copies is the tricky part. If you're interested in reading about what libraries and their patrons can and cannot do (for the most part), the sections you'd be interested in would be 17 USC 107 through 109. If it's an educational institution, 110 may also be relevant (but not for xeroxing articles).
The pendulum of justice has swung too far in favor of the lawyers. And for some reason, it never swings back.
I disagree. IMO lawyers are dangerously underfavored.;)
I propose that lawyers fees be severely limited above a certain threshold of award. That way, victims can still receive significant compensation when they are wronged in a way that warrants it, and the lawyers can still make more money on a higher award, but more like year-end bonus money than tri-state-lottery-winnings money.
Actually, the odds of getting lottery winnings money are on par with winning the lottery. I know lots and lots of lawyers, but no one who gets that much. Really, like with the lottery, the hype surrounding the few who get it overshadows the reality of the majority who don't.
In any event, what's wrong with the present fee system? A lawyer can't force a client to accept a particular sort of fee; but they do both have to agree on something. Typically, a client can choose between either paying an hourly fee, regardless of the outcome of the case, or a contingency fee. Under the former, the client has to pay set fees (e.g. $x per hour) win or lose, but if he wins, keeps the entire award (so long as he's not behind on his bill). Under the latter, the client pays nothing up front, and nothing if he loses, but pays a percentage of whatever the award is if he wins. Usually it's about a third, since the lawyer took the monetary risk.
If you prohibit or materially reduce contingency fees, then it means that plaintiffs that cannot afford to pay lawyers up front and come-what-may will be effectively unable to hire lawyers at all, since lawyers won't take cases where they bear the risk but are likely to get too little of a reward.
If you really think that lawyers are profiting unjustly, then fine, but I suggest that you consider not only various possible reforms, but the ramifications that these reforms might have, both positive and negative.
It's not as simple as a majority vote. In the USA, at least, the government cannot take property for public use without just compensation. This is a good thing, because otherwise the government could raze your house to build a road and give you nothing. If the government were to abolish existing copyrights, it would have to pay huge sums of money to the individuals and companies that own them.
Maybe. It depends on whether copyrights are property or not, and while I fear that they are, for precisely this reason, there is an argument that they are not.
Of course, what I favor are reforms which merely adjust copyright to reasonable and useful levels; I doubt that abolition is the best thing that we could do. Even there, there is the specter of regulatory taking, but with carefully constructed reforms, I don't think it would be an insurmountable obstacle.
You can expect music to suck even more than it already does. All of those "cool" bands that you thought would never "sell out" will start singing about deodorant and soft drink brands. Television shows will begin to look like that scene in the Truman Show, where Truman's wife suddenly holds up a household product and talks about how great it is.
So? This is already happening. If it bothers the audience, then it won't work; perhaps as a result there will be fewer authors who try to support themselves off the money they make by exploiting their copyrights (as opposed to other means). If it doesn't bother the audience, then while I might personally dislike it, I don't see why my personal preferences should be controlling.
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No. And remember that the US required authors to specially seek out copyrights, instead of getting them automatically, from 1790 through to 1978. The system worked just fine. We never should've changed it merely because other countries did things differently; it's as stupid as jumping off a cliff just because all the other kids do it too.
Heh.
The 1790 Copyright Act actually had a term of 14 years, with an additional term of 14 years if the author was still alive at the end of the first term and sought the extension; thus, 14+14. I'd have to delve into it, but I'm pretty sure that the lengths are roughly based on periods of time that were significant for guilds, due to the sort of tortured way that these numbers were arrived at.
But as for generational length, Jefferson, writing to Madison regarding the drafting of the Constitution, actually worked out a 19 year term using French actuarial tables (he was our ambassador to France at the time). He thought this was better, but the then-traditional 14+14 term won out.
In any event, I disagree. The term ought to be whatever best serves the public interest. I don't care what number of years was best for the people of the late 18th century; I care about what overall configuration of copyright laws -- both term length and scope -- is best for us, now, living in the early 21st century.
Personally, I suspect this would be lots of very short terms -- 1 to 5 years long, which have to frequently be renewed to reach a maximum of 20 to 25 years, and where the number of renewals might be less depending on the kind of work involved (e.g. there's no reason for software to have such a long maximum copyright; 5 years would likely be sufficient).
And of course, there are a lot of other essential reforms besides term length. I really fear the way people concentrate on this. If a term reform came to pass, but nothing else, we'd still be in trouble. We need comprehensive reform, of which term length actually is not the most critical part.
Ideally a copyright should only limit your right to copy.
I disagree. There are many rights that exist with respect to works; copyright should consist of whatever combination of rights, exceptions to those rights, duration, etc. that best serves the public interest. This could include the reproduction right and other rights, or include rights other than reproduction. There's no reason to marry ourselves to the reproduction right alone.
I think it would be a lot more simple and fairer if we reverted to using simple contracts(license agreements) combined with our copyrights which are well understood and well administered within a common law system.
Perhaps. But I think that it is important to bar all (or at least nearly all) adhesive contracts, in that case. If two parties actually sit down and negotiate something, then that's fine. But where a contract is standardized, and presented on a take-it-or-leave-it basis (as with EULAs, say), then I don't think that there's really any fairness.
Additionally, we shouldn't permit contracts to defeat the public interest. For example, an author should not be able to use contracts to effectively prevent his work from meaningfully entering the public domain by limiting access to the works.
Besides, the default rules of copyright should really be crafted such that there is rarely any need for contracts or licensure in normal cases involving the segment of the public that is the audience for the work.
No, Hong Kong was ceded to the UK in the 1840's. Some additional territory in Kowloon was ceded in the 1860's. It was the New Territories that were merely leased in 1898 for 99 years.
Nevertheless, you do have that choice. Further, since punitive damages are not allowed for breech, you'll find that they're not typically allowed as terms of the contract; the precise nature and fairness of any sort of contractually-set damages for breech are key as to whether or not they'll hold up. The effect of a breech might result in some other sort of tort, but it also might not; it depends on the specific circumstances.
For a membership store, I'd be shocked if anything happened to the customer beyond merely canceling the membership. Of course, it's a good idea to read contracts before you agree to them, and to keep a copy of them, so that you aren't surprised later.
Not really. Once you have signed the contract, they are no longer voluntary but mandatory and you cannot voluntarily decline.
No, you really can. Contracts are not inviolate or holy or anything; if either side wants to breech a contract at any time, then they are always absolutely free to do so. There might be some sort of damages to pay to the other side, but typically that's all. Indeed, the legal system encourages parties to breech if, taking into consideration the effects of it, it is sensible to do so. It's not viewed as bad or worthy of punishment or anything.
Could the store win in court on the argument that breech is reasonable grounds to invoke the shopkeeper's privilege? Personally, I would doubt it.
Certainly, your contractual relationship with them would be over, so they would treat you as any other non-member and not let you shop there. And they could likely refuse to let you set up a new contract with them. But that's not really interesting, and if you're going to breech, you ought to weigh which outcome (consenting and continuing to shop there, or not consenting and not coming back) is better for you.
Unless you are shopping in a membership store where you signed a contract allowing such searches they are **voluntary**
Then that too would be voluntary. If you don't want to show your receipt at such a store, then you'd just breech the contract. There's nothing wrong with that, it'd just tend to preclude you from shopping there again.
Any thoughts on how to keep goods from leaving the store unauthorized, without violating someone's rights?
The traditional way?
The tort of false imprisonment consists of intentionally confining a victim without his consent, by certain means (e.g. physical boundaries, unlawful force, unlawful threats of force). But there is an exception to this, with regard to shoplifting, known as the shopkeeper's privilege. In order for a specific act of detaining someone to qualify, the shopkeeper has to have a reasonable suspicion that the detainee has shoplifted, he can only use a reasonable degree of force and restrain them in a reasonable manner, he can only detain them long enough to carry out a reasonable investigation (probably no longer than about 15 minutes), and it needs to take place on or quite close to the premises (you can't hunt someone down hours or miles later). So long as these requirements are met, the shopkeeper is protected, even if he made a mistake. The important thing is that he acted reasonably.
That's the common law rule; there are statutory forms of the privilege in some jurisdictions, but they're likely pretty similar.
The issue here is this: given that it is not reasonable to suspect every single customer merely because they are exiting the store, but given that it is lawful to ask exiting customers to voluntarily show their receipts, is it reasonable to suspect someone of shoplifting for no other reason whatsoever than that they did not comply with the voluntary showing of their receipt?
Personally, I would think not. While the damages that this guy personally suffered are relatively minor, if this is a matter of policy for the entire store or chain of stores, and if it is a common policy in other stores, then punitive damages might be called for to discourage this store (and others, by means of cautionary example) from having such policies in future.
No, there's no treble damages for copyrights.
one possible remedy would be for the copyright of the derivative work to revert to the original work's creator.
No, that would not be possible. A work which includes derivative material used unlawfully is uncopyrightable in that portion per 17 USC 103(a). And forcibly handing over the copyright to original material would be an extreme and likely unacceptable remedy.
Fair use is limited to reasonable excerpts.
No it's not. The amount and substantiality of the work are factors, but not determinative on their own. Sometimes a fair use can involve an entire work, e.g. certain instances of time or space shifting. Sometimes using only excerpts is nevertheless unfair, as in Harper & Row v. Nation, where excerpts from a book were published unfairly.
What is necessary is to look at the use overall, which typically will include looking at the four enumerated factors. The analysis isn't mechanical at all. Even if most of the factors weigh against the user, the use can nevertheless be fair. Even though it sounds like a tautology, a fair use is a use that is fair; there's no bright line rules as to what that will be, and it varies with the circumstances surrounding each individual use. That is, not each type of use, but each specific use. If Alice and Bob each are parodists, say, and each makes a parody of a work, there's nothing to prevent Alice's work from being fair, while Bob's is unfair. You have to look at each independently.
Otherwise, what's stopping me from copying an entire movie, then adding "I liked this movie" at the end.
Do you think that it would be a fair use? Without knowing more about your hypothetical situation, I really couldn't say.
In large parts of the world you'd practicly [sic] have to hire your own investigator force to curb piracy, who'd very quickly run into civil rights issues. [The pirates] are the people making money today, who'd make a killing if you cut the penalties and the ability to enforce it, since investigators can't require ID, make arrests or anything of the sorts.
Well, even today, even in the US, which has criminal infringement statutes on the books, nearly all enforcement and investigation is handled privately and through the civil courts. Typically, what will happen is that when a group of pirates is found, the copyright holder will request ex parte a temporary injunction which gives them the opportunity to seize the pirated materials. Then proper litigation will begin and a longer-lasting injunction will be issued, typically culminating in a court order to have that stuff destroyed, along with damage awards. Often the actual bust will be carried out by local law enforcement. And to prevent this from being used improperly by copyright holders, they're likely to have to post a bond which will be used to cover the damage caused to the pirates if it turns out that they were not doing anything illegal.
It works reasonably well. I don't see why you'd need to arrest the pirates; it doesn't help make the copyright holders whole again, nor does it help society, which is only really interested in helping the copyright holders be whole again so as to preserve their incentive.
Actually, the United States Code has had provisions for criminal copyright infringement since at least 1982. It's not really anything new.
1897, IIRC. But not all copyright infringement is criminal.
Nevertheless, I don't think that it should be criminalized. The societal harm of infringement is too minor -- after all, it merely reduces the benefit to society of copyright because the author in question isn't getting enough compensation to incentivize him. The civil remedies revolve around compensation, however, solving that issue, while the criminal penalties don't restore the social benefits at all. Nor do the penalties for infringement seem to have any effect as a deterrent. And I sincerely doubt that society gains any sort of value out of retribution for copyright infringement.
Patent infringement is not criminal. Trademark infringement traditionally has not been, and that only recently changed, and is likely a bad idea in most cases (I could see it if someone was proximately harmed by it, but it's hard to see how existing criminal statutes wouldn't already apply adequately). Why should copyright be special?
Thus, although it is a contract violation, it is arguably beyond the scope of US copyright law per se to install a single copy of software on multiple computers, possibly by different owners, as long as the medium changes ownership on each sale. (I.e. I install it on my machine, sell you the disk....). EULA's are designed to prevent this poblem.
No, that's actually infringing, right there. Remember, only the owner of a copy of a program is able to make non-infringing copies and adaptations, including into RAM. Thus, if you sell your copy of the program, you can no longer lawfully use the program on your own machine.
The big issue is this: Software development is expensive. In order to recoup costs associated, one must find some way to spread the cost around. ... [W]hen you publish software, it is desirable to be able to distribute the software in such a way as to distribute the cost of development among the users in a fair and equitable way. Sofware licensing accomplishes this.
That doesn't really explain anything. All I'm saying is that when a publisher distributes software to end users who will not do anything with the software other than installing it, running it, and backing it up, that they may as well just sell the copies of the software to the users, rather than engage in this farce of licensing. Books are sold, records are sold, movies are sold, and many of those are more expensive to make than software is. What's so special about software, in light of the fact that the law permits owners of copies of it to make such copies and adaptations as necessary to run it, and to make backups?
I'm not advocating FOSS here. I'm just saying that there appear to be no advantages to claiming that there is a license when someone goes to the store and picks up a copy of a program in a cardboard box off of the shelf, as opposed to letting it be a regular sale, as with anything else.
Nevertheless, the previous poster is correct. A mere license, standing alone, is unreliable. It can be unilaterally withdrawn by the licensor, at any time, for any reason, or for no reason at all. At most you would be able to fight to get a bit of time to shut down whatever you were doing in reliance on that license gracefully, but quickly, rather than having to stop instantly. It's like someone inviting you onto their land, then ordering you to leave.
So essentially, if Linus has a change of heart one day and says, that his portions of the Linux kernel are no longer GPL'ed, then this means it is no longer so, and worse still, that none of the portions based on his work can continue to be distributed either, most likely, which results in serious problems.
That's no good. And it's particularly contrary to the goals of the FSF in that if someone obtained a copyright to some important piece of code, they could make a lot of mischief by terminating the license. Sure, a replacement would come along, but great harm would be suffered in the meantime.
The GPL really is a contract, however, in that it imposes a contingent obligation on people who work under it. In order to receive the benefits of the GPL, a developer has to promise that he will abide by the requirements of the GPL (e.g. his distributions will be under the GPL). It doesn't obligate him to make distributions, but that just means that his obligation doesn't trigger until some contingency is met; it's still there, however. In exchange, you get an assurance that your rights under the GPL won't be arbitrarily terminated. It's a classic binding exchange of promises. One of those promises is a copyright license, but that doesn't mean that we stop analyzing the GPL there.
No, that's incorrect. While there have been some cases upholding EULAs, as well as some cases the other way, US copyright law is clear that if you own a copy of a computer program, then you can make copies and adaptations in order to use the program, and that you can make backup copies (of the program -- there's nothing about other types of works, e.g. movies on DVD). The relevant statute is 17 USC 117.
There is really no need for software licenses for ordinary end users, IMO, and no one I've ever talked to has come up with a reason why they'd be needed as opposed to just relying on the Copyright Act. In some circumstances, a license and contract would be useful, e.g. for developers who want to modify the program and distribute their version, or for site licensing. But as for just going to the store and getting a CD in a box, not so much.
Jefferson changed the language he swiped from Locke, because Jefferson didn't think that there were natural rights to property beyond what a person can defend on their own.
That's an interesting position to take. Personally, I think that copyright is essentially an amoral field, and that we ought to only deal with it through a utilitarian lens.
However, if I had to look at it from a moral perspective, I would come to the opposite conclusion; it is moral to use, disseminate, preserve, and improve creative works and human knowledge, and immoral to let it gather dust, to fail to be spread to those who desire it or would be improved by it, to let it be lost, and to fail to create new works which happen to be based upon existing works. In some cases this wouldn't be true, e.g. if someone wants to keep private information about themselves private, then it wouldn't be right to violate that. But generally with copyright we're talking about non-private information such as published works, works due to be published, and works which cannot really be characterized as private but which were not really expected to be published due to external factors such as being felt unlikely to turn a profit.
I'm interested as to why you think that the whims of a single person, merely because he is the creator of a work, should be more important than the value to humanity of making sure that that work helps the greatest number of people for the remainder of time.
I would argue that non-commercial piracy performed by natural persons is not worth suing over, and should not be illegal. Copyright is an amoral, utilitarian law; if most people seem to want to engage in piracy, then it's better to let them lawfully do so, provided that it's generally accepted that this may have side effects (e.g. less of an investment made in music by publishers, and so less commercially produced and released music) which will have to be accepted as part of the deal. In this, copyright is more like Prohibition, which many at the time thought was a good idea, but turned out to just not work, and to be more trouble than it was worth, than something which is worth having even if unpopular, e.g. civil rights for minorities that everyone hates.
On the whole, then, I wouldn't be bothered by the presence of watermarks, provided that there were no secrets connected with how they work, so that individuals could trivially strip them out to maintain their privacy, and that natural persons acting non-commercially could do as they please, and there was nothing mandatory about them (developers aren't required to waste resources implementing them if they don't want to; player software that doesn't support the watermarks can still play the files properly. etc.)
The problem is that not all educational uses are fair uses. You have to look at the circumstances underlying each individual use, and judge them on a case by case basis. You really can't make accurate blanket statements as to what is and is not a fair use.
So while I'm sure that it often is a fair use to make a copy of an article for the members of the class to read in the library, it isn't necessarily so. Likewise, while it may often be that a student making a copy of an article he was assigned to read is a fair use, it isn't always the case that it will be.
(Also fair use doesn't care about the number of copies made, so long as it remains fair; there's nothing in there about one copy always being fair and more copies being unfair, etc. Really, it's just something to consider when looking at the fourth factor.)
I have no desire to dig through the actual statutes to cite chapter and verse where this comes from in the Act, but I trust it's there.
I'd be interested to know where they're getting this from, actually. It could very well be a fair use, though you'd have to argue it anew each and every time, since fair use depends on the circumstances. And in some limited situations, a school library could copy a work. And there could be some sort of license that the school has negotiated with a clearinghouse, or some other body with the right to sublicense, but this wouldn't be true for every single work. Otherwise, I think that this is more wishful thinking than accurate guidelines.
A lawfully made copy can certainly be put in a library and used by patrons of the library. Making additional copies is the tricky part. If you're interested in reading about what libraries and their patrons can and cannot do (for the most part), the sections you'd be interested in would be 17 USC 107 through 109. If it's an educational institution, 110 may also be relevant (but not for xeroxing articles).
The pendulum of justice has swung too far in favor of the lawyers. And for some reason, it never swings back.
;)
I disagree. IMO lawyers are dangerously underfavored.
I propose that lawyers fees be severely limited above a certain threshold of award. That way, victims can still receive significant compensation when they are wronged in a way that warrants it, and the lawyers can still make more money on a higher award, but more like year-end bonus money than tri-state-lottery-winnings money.
Actually, the odds of getting lottery winnings money are on par with winning the lottery. I know lots and lots of lawyers, but no one who gets that much. Really, like with the lottery, the hype surrounding the few who get it overshadows the reality of the majority who don't.
In any event, what's wrong with the present fee system? A lawyer can't force a client to accept a particular sort of fee; but they do both have to agree on something. Typically, a client can choose between either paying an hourly fee, regardless of the outcome of the case, or a contingency fee. Under the former, the client has to pay set fees (e.g. $x per hour) win or lose, but if he wins, keeps the entire award (so long as he's not behind on his bill). Under the latter, the client pays nothing up front, and nothing if he loses, but pays a percentage of whatever the award is if he wins. Usually it's about a third, since the lawyer took the monetary risk.
If you prohibit or materially reduce contingency fees, then it means that plaintiffs that cannot afford to pay lawyers up front and come-what-may will be effectively unable to hire lawyers at all, since lawyers won't take cases where they bear the risk but are likely to get too little of a reward.
If you really think that lawyers are profiting unjustly, then fine, but I suggest that you consider not only various possible reforms, but the ramifications that these reforms might have, both positive and negative.
You can even make a single photocopy for your own personal use.
No, there is no 'personal use' exception. You could argue that making such a copy would be a fair use, but there's no guarantee of that.
It's not as simple as a majority vote. In the USA, at least, the government cannot take property for public use without just compensation. This is a good thing, because otherwise the government could raze your house to build a road and give you nothing. If the government were to abolish existing copyrights, it would have to pay huge sums of money to the individuals and companies that own them.
Maybe. It depends on whether copyrights are property or not, and while I fear that they are, for precisely this reason, there is an argument that they are not.
Of course, what I favor are reforms which merely adjust copyright to reasonable and useful levels; I doubt that abolition is the best thing that we could do. Even there, there is the specter of regulatory taking, but with carefully constructed reforms, I don't think it would be an insurmountable obstacle.
You can expect music to suck even more than it already does. All of those "cool" bands that you thought would never "sell out" will start singing about deodorant and soft drink brands. Television shows will begin to look like that scene in the Truman Show, where Truman's wife suddenly holds up a household product and talks about how great it is.
So? This is already happening. If it bothers the audience, then it won't work; perhaps as a result there will be fewer authors who try to support themselves off the money they make by exploiting their copyrights (as opposed to other means). If it doesn't bother the audience, then while I might personally dislike it, I don't see why my personal preferences should be controlling.