That's a good point; sometimes it is important to have laws which run contrary to popular opinion, because the populace is wrong about a very important issue. However, where the issue is basically trivial, it seems like it would be harder to justify such a thing.
Protecting lives and civil liberties is a very important issue. Keeping people sober by banning alcohol, not so much. Which of these two seems more like protecting copyrights to you?
For copyright purposes, YouTube is an ISP, actually. Remember, there are several essential Internet services: providing raw connectivity; search engines and indices; providing storage space for users (e.g. for their web pages, for their email, for their humorous amateur videos, etc.), and; caching oft-requested information. I imagine that my fellow/. users could list many more, but these four services are what the law currently deems worthy of protection. If you provide any of them, then you are an ISP within the meaning of the present safe harbor.
Further, any typical consumer ISP will indeed provide users with storage space for web pages and such, as well as storage space for email. Further, it will permit users to make that information publicly available (after all, a home page is no good unless everyone can read it). So why should YouTube be treated any differently?
I did not say "takedown notice", I said "takedown". If they do admit to serving infringing material then they most likely also made money from copyright infringment.
ISPs don't ordinarily take down materials sua sponte because they're worried about it infringing. Normally, they only do so in response to a takedown notice, and not because they actually care, but because it is part of the procedure that they can follow in order to protect themselves very well from an infringement suit. Further, merely because an ISP accedes to a takedown notice, that doesn't amount to an admission of anything. It only means that they are playing it safe, and seeking the protection of the safe harbor. Do you know anything about how 17 USC 512 works, and how it explains why ISPs generally act as the way that they do?
That is definitely not an ethical way to run a business and it should not be legal.
Why not? The ISP merely provides a service to users. It doesn't control what material is and isn't present and doesn't have the means to do so either. Holding an ISP liable for how users use it is as foolish as holding the owner of a Kinko's responsible for what his customers do, or holding the phone company responsible for what people talk about over the phone.
I don't have a problem with it at all, and you'll find that for the most part, neither does Congress or the courts, both of which have protected ISPs in such circumstances in the past.
If you need specificity, then get a specific exception added on to the Act. Fair use is meant to be incredibly vague, in large part to help it respond to changing conditions. Fair use originated in the 19th century; could they have anticipated something like Betamax time-shifting? There's no reason why every use must be fair or infringing, but that doesn't mean that we should ruin fair use by trying to make it specific.
Google/YouTube hides under the fact that US copyright law puts the responsibility of reporting violation on the copyright holders.
I would be interested to know of anyplace that had free speech and which didn't place this sort of burden on the copyright holder. Certainly, I can't imagine why it would be sensible to place the burden on a third party who neither has knowledge of what material is copyrighted, and what material infringes on those copyrights. A copyright holder is in the best position to know what of its material is copyrighted, whether it is subject to a license, and whether it cares enough to bother enforcing its rights.
YouTube doesn't want to invest the time and money to perform their due diligence, but expects copyright holders to do it for them.
Youtube has no obligation of due diligence, nor would it be just to require it of them. If ISPs have to vet everything that goes across or on their systems at the direction of users, they would get out of the business and we wouldn't have ISPs at all. On the whole it is better to have the Internet and some inconvenience for copyright holders rather than no Internet and total deference to copyright holders.
Perhaps a video takedown should also spur relinquishing all profits generated by the infringing video to the copyright holders.
That would almost certainly be an unconstitutional denial of due process. A takedown notice is a mere allegation; it is entirely possible that a takedown notice is wrong as a matter of fact, or law, or both. Indeed, this is why there is a response mechanism built into the law that lets users force ISPs to put the material back up if they counter that there is no infringement. If you are going to forcibly take the ISP's money, there absolutely must be due process, i.e. a trial. And low and behold, damages and profits are already a remedy for copyright infringement.
Actually, if you check your convenient pocket sized unabridged OED, you'll find that that meaning of 'pirate' was coined by Englishmen in the 17th century. It is meant to demonize, especially since pirates were really hated back then; a modern equivalent would probably be 'terrorist.' But interestingly, it predates copyright law by many years.
Anyway, having been a common meaning of the word for centuries, I think you might as well give up on that fight, and concentrate on more important battles.
Well, my original point was that generally, I had assumed that no matter what portion of a case you're in, you need at least some rationale for demanding evidence.
They have a rationale. I know that no one ever reads the stuff linked to in the article, but read the stuff linked to in the article. The rationales of both sides are pretty nicely laid out here and you can follow along with how the judge actually ruled here. Meanwhile, of course, the defense presented its rationales for not wanting the various requests to go through. This isn't a case of one side having a totally meritless argument, but rather of the judge having to decide between two valid arguments, as guided by the Rules.
I flatly reject the idea that anyone who is a copyright holder can drag anyone else into a lawsuit and immediately demand to see all of the audio files on their computer. So what, exactly, is required for the judge to approve a subpoena of this information?
Yes, you can't start a case with nothing. This is part of the reason why they have to have investigators find infringers, rather than just starting with A. Aaronson and ending with Mr. Zykowski. Rule 11 deals with that: you can't commence a civil action in order to harass people, and any factual allegations you make have to already be supported or have to be likely to be supported. It's not just the client that has to adhere to this, but the lawyer does, independently, including not merely taking the client's word for it. If you fail to live up to this standard, and bring a baseless case, you'll not only wind up with it getting dismissed, but you may be sanctioned as well.
But assuming you do meet that standard, a lot of material is discoverable. Basically, if evidence is relevant to the case and admissible, then it is discoverable; if it is relevant, inadmissible, but likely to lead to relevant, admissible evidence, then it is discoverable. Some things are not discoverable, for various reasons. Privilege is a major one. Sometimes, if the discovery request is burdensome, that can be grounds to deny it as well.
So if you're a defendant in this kind of suit, and the other side wants to see all of your audio files, then they're probably going to get to, on the grounds that if any of those files are to do with works to which they hold the copyright, they're relevant and admissible for showing that you infringed, and that they already have some evidence to support the idea that you have or have had some of those files.
If you like, you can think of it in terms of public policies: there is a strong policy goal of having wrongdoers brought to justice. There are also strong goals of permitting frank, private legal advice, and avoiding unjust abuses of the legal system. But there's not a strong policy of protecting actual copyright infringers from getting caught.
Maybe there's no avoiding it, but at this point, it's still a lot of hassle and expense to deal with a truly absurd case, even if you won at every step during discovery -- meaning you managed to prevent them from rifling through your personal files because they kind of, sort of suspect that you have something.
Meh. Just because something is personal, that doesn't mean it might not get swept up during discovery. Believe me, I've seen some crazy things doing document and privilege reviews. And while I understand that no one likes having strangers intrude into their private lives, do realize that 99.44% of the time, the reviewers aren't going to care about non-relevant files that happen to be of a personal nature. Indeed, a combination of automated and manual searches will often mean that no human looks at them to begin with. In an infringement case dealing with music and sound recordings, why would people look through emails (other than emails that have suspicious atta
FWIW I really didn't know what the term "royalty" meant within a legal context, now of course it makes perfect sense.
That actually explains a lot, then. But it is a common meaning, you know, and not an unusual legal term.
Oh, and is it really necessary to tell people "I am not a lawyer"/"this is not legal advice" in public forum?
If you're not a lawyer, I'd say generally not, though I suppose it has its uses in both advertising to others that the accuracy of the post should be taken with a grain of salt, and in avoiding any claims (unlikely as they probably are) of practicing law without a license.
If you are a lawyer, it can't hurt. We're generally a conservative bunch -- by which I mean cautious, rather than politically. We're bound by certain ethical rules, and some of those rules determine what our duties are to various people, whether someone is considered a client or not, etc. We can't just talk about absolutely anything, to anyone, freely. (For example, legal ads like you see on tv are actually a fairly new thing; it used to be we weren't allowed) So the little disclaimers might help (and are cheap to add on, however minimal their usefulness might be; it's a bit of CYA) in avoiding certain outcomes of those rules that are not desirable to us.
There's actually another thing, but you see it less often, where if a discussion is getting uncomfortably close to being something other than idle chit-chat, a lawyer might have to stop, or change subjects, or avoid specifics. Often this is where you see the suggestion that the other person in the conversation go out and hire a lawyer, rather than just chat with one.
Ok, since you're the lawyer can you show me a link where it says that the burden of proof rests with the defendant?
Well, let's start with that. Laypeople generally don't understand certain procedural aspects of the legal system. A lot of people will say 'burden of proof,' sometimes even lawyers (although then it's a sort of lazy, highly contextual shorthand), but technically there's no such thing.
There is a burden of persuasion, there are evidentiary burdens, and there is a standard of proof. They're all different things, though significantly interconnected. The burden of persuasion is the burden of a party to prove its claims. For example, when we say that people are considered innocent until proven guilty, it merely means that the prosecution has to convince a jury of guilt, nothing more. Evidentiary burdens are used for proving that specific facts are as a party claims; for example, in a copyright suit, the plaintiff begins with the burden of having to show that he is the copyright holder (or otherwise has a right to sue in the first place). If that burden is satisfied, then the burden may shift to the defendant who can try to rebut it with proof to the contrary; if he succeeds, the burden shifts again, and so on. And the standard of proof is the standard which must be met in order for a burden to be met. In a typical civil case, it'll be a preponderance of the evidence (i.e. more likely than not, even if only by the slightest amount). In a criminal case, it'll be beyond a reasonable doubt, which is a much higher standard.
But in any event, while we are talking about the discovery portion of a case, where the two sides are engaged in gathering the evidence that they need, I really don't see your point. On TV you have things like surprise evidence or witnesses, gathered and presented at the last moment for dramatic tension. This is unrealistic. In fact, by the time a trial actually begins, both sides will routinely know exactly what evidence will be presented, what testimony will be given, and have a pretty good idea of the ultimate outcome. This is part of the reason why most cases don't get to trial; it's more common for one side to know it'll win and the other to know it'll lose, and for them to want to come to some agreement without wasting time and money drawing it out. The discovery rules are meant to facilitate this; in a proper trial, there are no surprises.
So we have things like Rule 26(a), which requires each party to voluntarily give a lot of information to the other side without having to be asked about it, 26(b), which allows any party to get all probative non-privileged evidence, or even non-admissible evidence which will lead to admissible evidence. If the other side has a good reason, they can object to it and the whole thing gets hashed out by the judge, as we see here. But generally the US is extremely plaintiff-friendly and has extremely broad discovery, compared to much of the rest of the world.
I think the technical term is reading, I mean the law is all written down right? That is the idea behind self representation isn't it?
There's a reason why pro se litigants are so heavily discouraged. Yes, it's all written down. But then, you might as well try to learn how to use a spreadsheet program by diligently reading through the source code. It takes about three years of hard work for people to become lawyers, and that's with the benefit of people teaching them. And even then, a smart baby lawyer is going to find someone more experienced to work with so that he can learn the important practical aspects of the law which are generally ignored in school, in favor of the higher level concepts. And one of the first things you get taught is how to do proper research, often using tools which are specialized and not available to everyone. (For example, Google is crap for legal research, really. Westlaw and Lexis have it beat, both in terms of what's in their database, and the power and flexibility of the search queries. Of course, you have to pay to u
The former. While the decision here might have been more favorable to the plaintiff than to the defendant, I don't think it was unreasonable, having looked over the documents linked to above.
A statute on how the Copyright Office determines statutory royalty rates (e.g. how much per song internet radio stations have to pay the copyright holders, in order to play them) is as irrelevant to a downloading case as the price of tea in China. Copyright Royalty Judges are just ALJs, not Article III judges. You clearly have no idea whatsoever what you're talking about, and no idea of how to find out. You probably just googled the Copyright Act for anything related to production.
What you actually want to look at for this case, are Federal Rules of Civil Procedure, which set forth the rules for discovery. You can find them here.
I'll give you this, however: that was the stupidest thing I've seen on/. all week.
The 'time-shifting case' is Sony v. Universal. Let's see what the Court actually said there (emphasis mine):
Even unauthorized uses of a copyrighted work are not necessarily infringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U.S., at 154-155. Moreover, the definition of exclusive rights in 106 of the present Act is prefaced by the words "subject to sections 107 through 118." Those sections describe a variety of uses of copyrighted material that "are not infringements of copyright" "notwithstanding the provisions of section 106." The most pertinent in this case is 107, the legislative endorsement of the doctrine of "fair use." That section identifies various factors that enable a court to apply an "equitable rule of reason" analysis to particular claims of infringement. Although not conclusive, the first factor requires that "the commercial or nonprofit character of an activity" be weighed in any fair use decision. If the Betamax were used to make copies for a commercial or profit-making purpose, such use would presumptively be unfair. The contrary presumption is appropriate here, however, because the District Court's findings plainly establish that time-shifting for private home use must be characterized as a noncommercial, nonprofit activity. Moreover, when one considers the nature of a televised copyrighted audiovisual work, see 17 U. S. C. 107(2) (1982 ed.), and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced, see 107(3), does not have its ordinary effect of militating against a finding of fair use. This is not, however, the end of the inquiry because Congress has also directed us to consider "the effect of the use upon the potential market for or value of the copyrighted work." 107(4). The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder's ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create. The prohibition of such noncommercial uses would merely inhibit access to ideas without any countervailing benefit. Although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.
In this case, respondents failed to carry their burden with regard to home time-shifting. The District Court described respondents' evidence as follows:
"Plaintiffs' experts admitted at several points in the trial that the time-shifting without librarying would result in 'not a great deal of harm.' Plaintiffs' greatest concern about time-shifting is with 'a point of important philosophy that transcends even commercial judgment.' They fear that with any Betamax usage, 'invisible boundaries' are passed: 'the copyright owner has lost control over his program.'" 480 F.Supp., at 467.
That's a good question, but do be aware that some copyright infringement has been criminal in the US since the late 19th century, so it's not that new.
No, that reputation is undeserved. The 9th Circuit is huge, and so it sends many more cases to the Supreme Court than any of the other circuits do. However, in percentage terms, it's actually pretty average IIRC. It really needs to be split, but unfortunately, there doesn't seem to be a good way of doing that.
There isn't one. When you make a copy of a copyrighted web page in order to browse it, as you necessarily must, if only into RAM, you had better either have a license (either express or implied), or an applicable exception, or else you're infringing. So say the courts.
The GPL is a license, without which you couldn't even run the program in most cases (temporary copies in RAM fall under copyright law, see Lessig's "Code"), so clearly some license is necessary for all useful software.
That's not quite correct. When software is loaded into RAM, that RAM is a copy for copyright purposes (and making copies is the sort of thing that's generally prohibited). However, if you own the copy of the software you're starting from, then this is permitted under the law without a license by 17 USC 117. Ditto for making backups. But of course, those only apply to software, and only for copies that you own; not for any old thing that could be loaded into RAM.
Indeed, the GPL makes it clear that it does not apply to mere use of the software. That would seem to fall under a combination of 117 and an implied license on the part of the copyright holder.
It sounds fine to me (though 12 years is a bit long for software -- it might be better to have a shorter term for it, and a longer term for other kinds of works). Linux is not that important in the grand scheme of things. If getting sane copyright laws meant that people could ignore the GPL for a 12 year old version of Linux (but not for any changes that had been introduced since then) I would very happy. Incidentally, how many people do you think are interested in running or making closed forks from Linux as it existed in 1995?
Yep. In fact, as a signatory to the Berne Convention, in the US copyright exists in every work not explicitly released into the publci domain.
No, not quite. Some works are old enough that they are in the public domain, either because they predate copyright altogether, or were uncopyrightable at the time they were created and have remained uncopyrighted, or were copyrightable but were not, in fact, copyrighted in the appropriate window for doing so. Some works are uncopyrightable even now, either in whole or in part (for example, the parts of the story of a Disney cartoon which are the same as a public domain fairy tale are in the public domain; you could copy them (and nothing more) from the Disney movie directly). Works made by the federal government are in the public domain (with rare exceptions). A very few foreign works are in the public domain because the US still doesn't unilaterally offer national treatment (which is a better idea than these idiotic treaties). And, of course, copyright is limited in scope; it doesn't apply to works as a whole, but rather to certain types of actions in regard to works. Making a copy of a copyrighted work is (generally) not allowed, but merely reading it without making a copy (not possible on a computer, however) is allowed. Copyright exists as to the former, but stops short of the latter.
Which makes it a particularly stupid thing to say. I mean it is fairly obvious that they mean "no unauthorised downloading of copyright material", but if they really plan to implement a "no excuses, no appeal" policy, you'd think they'd take the 30 seconds or so it needed to phrase the thing correctly.
No, some unauthorized downloading is nevertheless lawful. It would be better to say 'no unlawful downloading of copyrighted works' which would permit people to use works in ways that the way permits even though it might be against the wishes of the copyright holder.
First to file used to be the way the US Patent system worked, so it is tested law and very likely to hold up under constitutionality attacks.
That's news to me, though as I said, patents aren't my field. Please cite the law to which you refer and the dates when it was in force. But IIRC we've been first-to-invent since the 1793 Patent Act.
The problem with first to invent is twofold - it leads to submarine patents, and it also leads to a lot more litigation.
No, submarine patents are caused by having termination dates that depend on the grant date, as opposed to the filing date. They are also caused by not requiring the PTO to publish every application it receives immediately upon receipt, along with amendments and other correspondence regarding patents and applications.
As for litigation, so what? What is important is having a useful patent system which allocates patents justly and lawfully. Sometimes this requires litigation. It's just a means to an end, and is itself neither good nor bad. If you have a better way of actually prosecuting an interference, then by all means, let us know. But abolishing the practice altogether is a terrible idea. It's akin to saying that we could save a lot of money in the criminal justice system if we just assumed everyone was guilty and didn't bother with a trial. Yes, it would be cheaper, but it would not actually help with the goals of the system.
None of that favours the individual inventor.
OTOH, not having to race to the PTO does favor the individual inventor. AFAIK, individual inventors and their trade organizations have been in favor of first-to-invent, while it's mainly been large inventors (and the worthless-to-listen-to-on-this-matter international community) who have been in favor of first-to-file.
What needs to happen in a lot of circumstances is that copyright should not be transferable.
Why? Copyright has never been an inalienable right; it's an economic right, and it is expected that the holder of it will exploit it as much as he can, including, if necessary, selling it. It strikes me as just as senseless to bar assignments of copyright as it would be to resurrect the fee tail. And it's not as though copyright holders are ever forced to sell their copyrights; it's always their choice. Their bargaining positions might be poor, and they might do a bad job of valuing what they have got (just as I suspect you do a bad job of valuing what the other side brings to the table) but people have always had the freedom to act foolishly, and to make bad deals. It's inappropriate to treat artists like children who are incapable of looking out for themselves.
But it will revert to me.
What if an artist doesn't care about that, and just wants money up front? Who are you to tell him that he isn't allowed to do that?
If I sell my land cheaply, and it turns out that there was valuable oil and gold under it, then maybe I'll end up kicking myself for making a bad deal, but I see no reason why I ought to be able to demand it back from the new owner. If I wanted to reduce my risk, then I should have provided for that in the contract, and it's not the fault of the system or the other side if I forgot to or didn't care at the time. Copyright holders are the same. If they want a reversion, let them put it into the contract. No one is stopping them. They might find it harder to find someone willing to do it (just as a buyer of land would prefer to have it outright, than to have it subject to the prior owner being able to take it back) but that's the cost that comes along with that.
I'm all about copyright reform, as I'm sure many people here know, but I see no point in what you propose. Indeed, I'd rather make things more clear cut, by getting rid of existing termination laws, and strengthening works made for hire. There shouldn't be uncertainty or surprises in the default rules, though there should be great freedom of contract with respect to copyright.
Patents are not my field, so there may be a number of important issues elsewhere in the bill which are escaping my notice, but there is a big problem with at least one aspect of this proposal: a first-to-file system is unconstitutional.
The Constitution requires that if patents are granted at all, that they must be granted to inventors. The second person to come up with something however, even if they do so independently, is in the same boat as the third, or fourth, or five hundredth -- they're not the inventor. Only the first person can actually make that claim. It doesn't and shouldn't matter whether the PTO receives someone else's application prior that of the inventor, provided that the inventor can show that he was first (with things like dated lab notebooks, etc.).
Yes, this means that there are sometimes interference proceedings to determine which of multiple claimants to the title was actually the inventor. But this is a relatively small price to pay to make sure that our system is just and adheres to our highest law.
That much of, if not all of, the rest of the world has a first-to-file system, rather than our first-to-invent system is irrelevant; if the rest of the world was going to jump off of a cliff, that doesn't mean that we should as well. It is important that the US patent system best serve the interests of the American people, rather than anyone else. (Certainly our copyright system would be vastly improved if we ignored other countries and merely concentrated on what was best. Critical reforms such as formalities, and significant shortening of the term length can't even happen now, so long as we care about what the rest of the world thinks.)
At a minimum, I hope that the new bill includes provision for its own unconstitutionality, so that if it is enacted, when the first-to-file portions of it are struck down, there is more than an ad hoc process in place for dealing with interferences. Otherwise, it sounds as though whatever court time is saved on the infringement front might end up being used up elsewhere in the patent system.
Personally, I think that it might also be worthwhile to reduce the power of the Federal Circuit as well; I don't think that that little experiment has worked, but for all I know that might be buried in there somewhere.
17 USC 512 is what I was going to cite. Transmission isn't copying was my understanding of that. Wasn't aware there was much debate on the matter.
Actually, that leads into a rather interesting area of debate. While most have taken it for granted that uploading is distribution, and the courts have so ruled, I think that the language of the statute is in fact to the contrary. Distribution requires that the title or possession of a copy change hands, but in the case of uploading, there is a copy at the server end, and a new copy which is created by the downloader, but no copy actually goes from one to the other. Instead, I think that uploading is actually a performance or display and should be handled appropriately. There hasn't really been any success with this argument that I am aware of, but I think it's considerably more accurate if you read the definitions in the Act.
As for 512, it offers a safe harbor to ISPs, but is of no use, really, to end user infringers. There are four safe harbors, in fact, for four different types of conduct by the ISPs which, without the safe harbor, could be considered to be secondary infringement. They are: communicating, caching, storing, and indexing. Remember that sufficient assistance of, or in some cases, failure to prevent, another's infringement, can result in the second party being held liable for the first party's infringement. This is what did Napster in; not only were its users responsible for their infringements, but Napster was also responsible, since it helped them. While 512 does treat mere communication (i.e. allowing an infringer to infringe using your lines and bandwidth and so on) differently from more substantial infringements such as storing (i.e. providing server space to a user which he uses to infringe), that really isn't going to be enough for your argument.
Instead, you should concentrate on 17 USC 501(a), 106(1),(3), and 101. Those three tell the whole prima facie story for uploading and downloading as infringements. There can be applicable exceptions, but those only will work under certain circumstances. None of them is broad enough to shield all downloading of any kind.
I'd like to see some broad exceptions to protect natural persons acting non-commercially, and to treat computers more sensibly, since their inner workings necessitate lots of copying all the time, and that pervasive but low-level copying shouldn't be held against them. But for the moment, we don't have those.
There is absolutely no such precedent.. in fact, that argument has been presented and rejected already. That's the precedent.
Well, I am thinking of Motown v. DePietro, where the E.D. Pa. said (edited a bit):
A plaintiff claiming infringement of the exclusive-distribution right can establish infringement by proof of actual distribution or by proof of offers to distribute, that is, proof that the defendant "made available" the copyrighted work....
While neither the United States Supreme Court nor the Third Circuit Court of Appeals has confirmed a copyright holder's exclusive right to make the work available, the Court is convinced that 17 U.S.C. 106 encompasses such a right based on its reading of the statute, the important decision in A&M Records, Inc. v. Napster, Inc., and the opinion offered by the Register of Copyrights, Marybeth Peters, in a letter related to Congressional hearings on piracy of intellectual property on peer-to-peer networks ("[M]aking [a work] available for other users of [a] peer to peer network to download . . . constitutes an infringement of the exclusive distribution right, as well as the production right.").
Since it's coming out of a district court, it would only be influential precedent, rather than binding, but that any court would make this interpretation is new and worthy of concern. I wouldn't dismiss it out of hand, if I were you. We have enough problems with bad precedents such as MAI v. Peak. We don't need this.
[Downloading] is specifically described in the legislation as not being infringing.
Bearing in mind that we are talking about US law, please cite the statute in question. I know you can't cite 17 USC 117, since it only applies to computer software, and you can't cite 17 USC 1008, since it doesn't apply to computers (which is good, since if it did, computers would be required to employ and respect the SCMS DRM system, and there would be a royalty payment due for computers, and you can't cite 17 USC 512, since it deals with ISPs and not end users. You've got me curious now as to what you will cite.
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That's a good point; sometimes it is important to have laws which run contrary to popular opinion, because the populace is wrong about a very important issue. However, where the issue is basically trivial, it seems like it would be harder to justify such a thing.
Protecting lives and civil liberties is a very important issue. Keeping people sober by banning alcohol, not so much. Which of these two seems more like protecting copyrights to you?
For copyright purposes, YouTube is an ISP, actually. Remember, there are several essential Internet services: providing raw connectivity; search engines and indices; providing storage space for users (e.g. for their web pages, for their email, for their humorous amateur videos, etc.), and; caching oft-requested information. I imagine that my fellow /. users could list many more, but these four services are what the law currently deems worthy of protection. If you provide any of them, then you are an ISP within the meaning of the present safe harbor.
Further, any typical consumer ISP will indeed provide users with storage space for web pages and such, as well as storage space for email. Further, it will permit users to make that information publicly available (after all, a home page is no good unless everyone can read it). So why should YouTube be treated any differently?
I did not say "takedown notice", I said "takedown". If they do admit to serving infringing material then they most likely also made money from copyright infringment.
ISPs don't ordinarily take down materials sua sponte because they're worried about it infringing. Normally, they only do so in response to a takedown notice, and not because they actually care, but because it is part of the procedure that they can follow in order to protect themselves very well from an infringement suit. Further, merely because an ISP accedes to a takedown notice, that doesn't amount to an admission of anything. It only means that they are playing it safe, and seeking the protection of the safe harbor. Do you know anything about how 17 USC 512 works, and how it explains why ISPs generally act as the way that they do?
That is definitely not an ethical way to run a business and it should not be legal.
Why not? The ISP merely provides a service to users. It doesn't control what material is and isn't present and doesn't have the means to do so either. Holding an ISP liable for how users use it is as foolish as holding the owner of a Kinko's responsible for what his customers do, or holding the phone company responsible for what people talk about over the phone.
I don't have a problem with it at all, and you'll find that for the most part, neither does Congress or the courts, both of which have protected ISPs in such circumstances in the past.
If you need specificity, then get a specific exception added on to the Act. Fair use is meant to be incredibly vague, in large part to help it respond to changing conditions. Fair use originated in the 19th century; could they have anticipated something like Betamax time-shifting? There's no reason why every use must be fair or infringing, but that doesn't mean that we should ruin fair use by trying to make it specific.
Google/YouTube hides under the fact that US copyright law puts the responsibility of reporting violation on the copyright holders.
I would be interested to know of anyplace that had free speech and which didn't place this sort of burden on the copyright holder. Certainly, I can't imagine why it would be sensible to place the burden on a third party who neither has knowledge of what material is copyrighted, and what material infringes on those copyrights. A copyright holder is in the best position to know what of its material is copyrighted, whether it is subject to a license, and whether it cares enough to bother enforcing its rights.
YouTube doesn't want to invest the time and money to perform their due diligence, but expects copyright holders to do it for them.
Youtube has no obligation of due diligence, nor would it be just to require it of them. If ISPs have to vet everything that goes across or on their systems at the direction of users, they would get out of the business and we wouldn't have ISPs at all. On the whole it is better to have the Internet and some inconvenience for copyright holders rather than no Internet and total deference to copyright holders.
Perhaps a video takedown should also spur relinquishing all profits generated by the infringing video to the copyright holders.
That would almost certainly be an unconstitutional denial of due process. A takedown notice is a mere allegation; it is entirely possible that a takedown notice is wrong as a matter of fact, or law, or both. Indeed, this is why there is a response mechanism built into the law that lets users force ISPs to put the material back up if they counter that there is no infringement. If you are going to forcibly take the ISP's money, there absolutely must be due process, i.e. a trial. And low and behold, damages and profits are already a remedy for copyright infringement.
Actually, if you check your convenient pocket sized unabridged OED, you'll find that that meaning of 'pirate' was coined by Englishmen in the 17th century. It is meant to demonize, especially since pirates were really hated back then; a modern equivalent would probably be 'terrorist.' But interestingly, it predates copyright law by many years.
Anyway, having been a common meaning of the word for centuries, I think you might as well give up on that fight, and concentrate on more important battles.
Well, my original point was that generally, I had assumed that no matter what portion of a case you're in, you need at least some rationale for demanding evidence.
They have a rationale. I know that no one ever reads the stuff linked to in the article, but read the stuff linked to in the article. The rationales of both sides are pretty nicely laid out here and you can follow along with how the judge actually ruled here. Meanwhile, of course, the defense presented its rationales for not wanting the various requests to go through. This isn't a case of one side having a totally meritless argument, but rather of the judge having to decide between two valid arguments, as guided by the Rules.
I flatly reject the idea that anyone who is a copyright holder can drag anyone else into a lawsuit and immediately demand to see all of the audio files on their computer. So what, exactly, is required for the judge to approve a subpoena of this information?
Yes, you can't start a case with nothing. This is part of the reason why they have to have investigators find infringers, rather than just starting with A. Aaronson and ending with Mr. Zykowski. Rule 11 deals with that: you can't commence a civil action in order to harass people, and any factual allegations you make have to already be supported or have to be likely to be supported. It's not just the client that has to adhere to this, but the lawyer does, independently, including not merely taking the client's word for it. If you fail to live up to this standard, and bring a baseless case, you'll not only wind up with it getting dismissed, but you may be sanctioned as well.
But assuming you do meet that standard, a lot of material is discoverable. Basically, if evidence is relevant to the case and admissible, then it is discoverable; if it is relevant, inadmissible, but likely to lead to relevant, admissible evidence, then it is discoverable. Some things are not discoverable, for various reasons. Privilege is a major one. Sometimes, if the discovery request is burdensome, that can be grounds to deny it as well.
So if you're a defendant in this kind of suit, and the other side wants to see all of your audio files, then they're probably going to get to, on the grounds that if any of those files are to do with works to which they hold the copyright, they're relevant and admissible for showing that you infringed, and that they already have some evidence to support the idea that you have or have had some of those files.
If you like, you can think of it in terms of public policies: there is a strong policy goal of having wrongdoers brought to justice. There are also strong goals of permitting frank, private legal advice, and avoiding unjust abuses of the legal system. But there's not a strong policy of protecting actual copyright infringers from getting caught.
Maybe there's no avoiding it, but at this point, it's still a lot of hassle and expense to deal with a truly absurd case, even if you won at every step during discovery -- meaning you managed to prevent them from rifling through your personal files because they kind of, sort of suspect that you have something.
Meh. Just because something is personal, that doesn't mean it might not get swept up during discovery. Believe me, I've seen some crazy things doing document and privilege reviews. And while I understand that no one likes having strangers intrude into their private lives, do realize that 99.44% of the time, the reviewers aren't going to care about non-relevant files that happen to be of a personal nature. Indeed, a combination of automated and manual searches will often mean that no human looks at them to begin with. In an infringement case dealing with music and sound recordings, why would people look through emails (other than emails that have suspicious atta
FWIW I really didn't know what the term "royalty" meant within a legal context, now of course it makes perfect sense.
That actually explains a lot, then. But it is a common meaning, you know, and not an unusual legal term.
Oh, and is it really necessary to tell people "I am not a lawyer"/"this is not legal advice" in public forum?
If you're not a lawyer, I'd say generally not, though I suppose it has its uses in both advertising to others that the accuracy of the post should be taken with a grain of salt, and in avoiding any claims (unlikely as they probably are) of practicing law without a license.
If you are a lawyer, it can't hurt. We're generally a conservative bunch -- by which I mean cautious, rather than politically. We're bound by certain ethical rules, and some of those rules determine what our duties are to various people, whether someone is considered a client or not, etc. We can't just talk about absolutely anything, to anyone, freely. (For example, legal ads like you see on tv are actually a fairly new thing; it used to be we weren't allowed) So the little disclaimers might help (and are cheap to add on, however minimal their usefulness might be; it's a bit of CYA) in avoiding certain outcomes of those rules that are not desirable to us.
There's actually another thing, but you see it less often, where if a discussion is getting uncomfortably close to being something other than idle chit-chat, a lawyer might have to stop, or change subjects, or avoid specifics. Often this is where you see the suggestion that the other person in the conversation go out and hire a lawyer, rather than just chat with one.
Ok, since you're the lawyer can you show me a link where it says that the burden of proof rests with the defendant?
Well, let's start with that. Laypeople generally don't understand certain procedural aspects of the legal system. A lot of people will say 'burden of proof,' sometimes even lawyers (although then it's a sort of lazy, highly contextual shorthand), but technically there's no such thing.
There is a burden of persuasion, there are evidentiary burdens, and there is a standard of proof. They're all different things, though significantly interconnected. The burden of persuasion is the burden of a party to prove its claims. For example, when we say that people are considered innocent until proven guilty, it merely means that the prosecution has to convince a jury of guilt, nothing more. Evidentiary burdens are used for proving that specific facts are as a party claims; for example, in a copyright suit, the plaintiff begins with the burden of having to show that he is the copyright holder (or otherwise has a right to sue in the first place). If that burden is satisfied, then the burden may shift to the defendant who can try to rebut it with proof to the contrary; if he succeeds, the burden shifts again, and so on. And the standard of proof is the standard which must be met in order for a burden to be met. In a typical civil case, it'll be a preponderance of the evidence (i.e. more likely than not, even if only by the slightest amount). In a criminal case, it'll be beyond a reasonable doubt, which is a much higher standard.
But in any event, while we are talking about the discovery portion of a case, where the two sides are engaged in gathering the evidence that they need, I really don't see your point. On TV you have things like surprise evidence or witnesses, gathered and presented at the last moment for dramatic tension. This is unrealistic. In fact, by the time a trial actually begins, both sides will routinely know exactly what evidence will be presented, what testimony will be given, and have a pretty good idea of the ultimate outcome. This is part of the reason why most cases don't get to trial; it's more common for one side to know it'll win and the other to know it'll lose, and for them to want to come to some agreement without wasting time and money drawing it out. The discovery rules are meant to facilitate this; in a proper trial, there are no surprises.
So we have things like Rule 26(a), which requires each party to voluntarily give a lot of information to the other side without having to be asked about it, 26(b), which allows any party to get all probative non-privileged evidence, or even non-admissible evidence which will lead to admissible evidence. If the other side has a good reason, they can object to it and the whole thing gets hashed out by the judge, as we see here. But generally the US is extremely plaintiff-friendly and has extremely broad discovery, compared to much of the rest of the world.
I think the technical term is reading, I mean the law is all written down right? That is the idea behind self representation isn't it?
There's a reason why pro se litigants are so heavily discouraged. Yes, it's all written down. But then, you might as well try to learn how to use a spreadsheet program by diligently reading through the source code. It takes about three years of hard work for people to become lawyers, and that's with the benefit of people teaching them. And even then, a smart baby lawyer is going to find someone more experienced to work with so that he can learn the important practical aspects of the law which are generally ignored in school, in favor of the higher level concepts. And one of the first things you get taught is how to do proper research, often using tools which are specialized and not available to everyone. (For example, Google is crap for legal research, really. Westlaw and Lexis have it beat, both in terms of what's in their database, and the power and flexibility of the search queries. Of course, you have to pay to u
The former. While the decision here might have been more favorable to the plaintiff than to the defendant, I don't think it was unreasonable, having looked over the documents linked to above.
I don't often say this, but LOL.
/. all week.
A statute on how the Copyright Office determines statutory royalty rates (e.g. how much per song internet radio stations have to pay the copyright holders, in order to play them) is as irrelevant to a downloading case as the price of tea in China. Copyright Royalty Judges are just ALJs, not Article III judges. You clearly have no idea whatsoever what you're talking about, and no idea of how to find out. You probably just googled the Copyright Act for anything related to production.
What you actually want to look at for this case, are Federal Rules of Civil Procedure, which set forth the rules for discovery. You can find them here.
I'll give you this, however: that was the stupidest thing I've seen on
The 'time-shifting case' is Sony v. Universal. Let's see what the Court actually said there (emphasis mine):
That's a good question, but do be aware that some copyright infringement has been criminal in the US since the late 19th century, so it's not that new.
No, that reputation is undeserved. The 9th Circuit is huge, and so it sends many more cases to the Supreme Court than any of the other circuits do. However, in percentage terms, it's actually pretty average IIRC. It really needs to be split, but unfortunately, there doesn't seem to be a good way of doing that.
Well, that's true, but it's not binding precedent except for the district courts under the 9th Circuit. For everyone else, it is merely influential.
There isn't one. When you make a copy of a copyrighted web page in order to browse it, as you necessarily must, if only into RAM, you had better either have a license (either express or implied), or an applicable exception, or else you're infringing. So say the courts.
The GPL is a license, without which you couldn't even run the program in most cases (temporary copies in RAM fall under copyright law, see Lessig's "Code"), so clearly some license is necessary for all useful software.
That's not quite correct. When software is loaded into RAM, that RAM is a copy for copyright purposes (and making copies is the sort of thing that's generally prohibited). However, if you own the copy of the software you're starting from, then this is permitted under the law without a license by 17 USC 117. Ditto for making backups. But of course, those only apply to software, and only for copies that you own; not for any old thing that could be loaded into RAM.
Indeed, the GPL makes it clear that it does not apply to mere use of the software. That would seem to fall under a combination of 117 and an implied license on the part of the copyright holder.
It sounds fine to me (though 12 years is a bit long for software -- it might be better to have a shorter term for it, and a longer term for other kinds of works). Linux is not that important in the grand scheme of things. If getting sane copyright laws meant that people could ignore the GPL for a 12 year old version of Linux (but not for any changes that had been introduced since then) I would very happy. Incidentally, how many people do you think are interested in running or making closed forks from Linux as it existed in 1995?
I would've called it Number 2, because with all the DRM and such it'll surely have, it'll make you feel as though you're Number 6.
Be seeing you.
Yep. In fact, as a signatory to the Berne Convention, in the US copyright exists in every work not explicitly released into the publci domain.
No, not quite. Some works are old enough that they are in the public domain, either because they predate copyright altogether, or were uncopyrightable at the time they were created and have remained uncopyrighted, or were copyrightable but were not, in fact, copyrighted in the appropriate window for doing so. Some works are uncopyrightable even now, either in whole or in part (for example, the parts of the story of a Disney cartoon which are the same as a public domain fairy tale are in the public domain; you could copy them (and nothing more) from the Disney movie directly). Works made by the federal government are in the public domain (with rare exceptions). A very few foreign works are in the public domain because the US still doesn't unilaterally offer national treatment (which is a better idea than these idiotic treaties). And, of course, copyright is limited in scope; it doesn't apply to works as a whole, but rather to certain types of actions in regard to works. Making a copy of a copyrighted work is (generally) not allowed, but merely reading it without making a copy (not possible on a computer, however) is allowed. Copyright exists as to the former, but stops short of the latter.
Which makes it a particularly stupid thing to say. I mean it is fairly obvious that they mean "no unauthorised downloading of copyright material", but if they really plan to implement a "no excuses, no appeal" policy, you'd think they'd take the 30 seconds or so it needed to phrase the thing correctly.
No, some unauthorized downloading is nevertheless lawful. It would be better to say 'no unlawful downloading of copyrighted works' which would permit people to use works in ways that the way permits even though it might be against the wishes of the copyright holder.
First to file used to be the way the US Patent system worked, so it is tested law and very likely to hold up under constitutionality attacks.
That's news to me, though as I said, patents aren't my field. Please cite the law to which you refer and the dates when it was in force. But IIRC we've been first-to-invent since the 1793 Patent Act.
The problem with first to invent is twofold - it leads to submarine patents, and it also leads to a lot more litigation.
No, submarine patents are caused by having termination dates that depend on the grant date, as opposed to the filing date. They are also caused by not requiring the PTO to publish every application it receives immediately upon receipt, along with amendments and other correspondence regarding patents and applications.
As for litigation, so what? What is important is having a useful patent system which allocates patents justly and lawfully. Sometimes this requires litigation. It's just a means to an end, and is itself neither good nor bad. If you have a better way of actually prosecuting an interference, then by all means, let us know. But abolishing the practice altogether is a terrible idea. It's akin to saying that we could save a lot of money in the criminal justice system if we just assumed everyone was guilty and didn't bother with a trial. Yes, it would be cheaper, but it would not actually help with the goals of the system.
None of that favours the individual inventor.
OTOH, not having to race to the PTO does favor the individual inventor. AFAIK, individual inventors and their trade organizations have been in favor of first-to-invent, while it's mainly been large inventors (and the worthless-to-listen-to-on-this-matter international community) who have been in favor of first-to-file.
What needs to happen in a lot of circumstances is that copyright should not be transferable.
Why? Copyright has never been an inalienable right; it's an economic right, and it is expected that the holder of it will exploit it as much as he can, including, if necessary, selling it. It strikes me as just as senseless to bar assignments of copyright as it would be to resurrect the fee tail. And it's not as though copyright holders are ever forced to sell their copyrights; it's always their choice. Their bargaining positions might be poor, and they might do a bad job of valuing what they have got (just as I suspect you do a bad job of valuing what the other side brings to the table) but people have always had the freedom to act foolishly, and to make bad deals. It's inappropriate to treat artists like children who are incapable of looking out for themselves.
But it will revert to me.
What if an artist doesn't care about that, and just wants money up front? Who are you to tell him that he isn't allowed to do that?
If I sell my land cheaply, and it turns out that there was valuable oil and gold under it, then maybe I'll end up kicking myself for making a bad deal, but I see no reason why I ought to be able to demand it back from the new owner. If I wanted to reduce my risk, then I should have provided for that in the contract, and it's not the fault of the system or the other side if I forgot to or didn't care at the time. Copyright holders are the same. If they want a reversion, let them put it into the contract. No one is stopping them. They might find it harder to find someone willing to do it (just as a buyer of land would prefer to have it outright, than to have it subject to the prior owner being able to take it back) but that's the cost that comes along with that.
I'm all about copyright reform, as I'm sure many people here know, but I see no point in what you propose. Indeed, I'd rather make things more clear cut, by getting rid of existing termination laws, and strengthening works made for hire. There shouldn't be uncertainty or surprises in the default rules, though there should be great freedom of contract with respect to copyright.
Patents are not my field, so there may be a number of important issues elsewhere in the bill which are escaping my notice, but there is a big problem with at least one aspect of this proposal: a first-to-file system is unconstitutional.
The Constitution requires that if patents are granted at all, that they must be granted to inventors. The second person to come up with something however, even if they do so independently, is in the same boat as the third, or fourth, or five hundredth -- they're not the inventor. Only the first person can actually make that claim. It doesn't and shouldn't matter whether the PTO receives someone else's application prior that of the inventor, provided that the inventor can show that he was first (with things like dated lab notebooks, etc.).
Yes, this means that there are sometimes interference proceedings to determine which of multiple claimants to the title was actually the inventor. But this is a relatively small price to pay to make sure that our system is just and adheres to our highest law.
That much of, if not all of, the rest of the world has a first-to-file system, rather than our first-to-invent system is irrelevant; if the rest of the world was going to jump off of a cliff, that doesn't mean that we should as well. It is important that the US patent system best serve the interests of the American people, rather than anyone else. (Certainly our copyright system would be vastly improved if we ignored other countries and merely concentrated on what was best. Critical reforms such as formalities, and significant shortening of the term length can't even happen now, so long as we care about what the rest of the world thinks.)
At a minimum, I hope that the new bill includes provision for its own unconstitutionality, so that if it is enacted, when the first-to-file portions of it are struck down, there is more than an ad hoc process in place for dealing with interferences. Otherwise, it sounds as though whatever court time is saved on the infringement front might end up being used up elsewhere in the patent system.
Personally, I think that it might also be worthwhile to reduce the power of the Federal Circuit as well; I don't think that that little experiment has worked, but for all I know that might be buried in there somewhere.
17 USC 512 is what I was going to cite. Transmission isn't copying was my understanding of that. Wasn't aware there was much debate on the matter.
Actually, that leads into a rather interesting area of debate. While most have taken it for granted that uploading is distribution, and the courts have so ruled, I think that the language of the statute is in fact to the contrary. Distribution requires that the title or possession of a copy change hands, but in the case of uploading, there is a copy at the server end, and a new copy which is created by the downloader, but no copy actually goes from one to the other. Instead, I think that uploading is actually a performance or display and should be handled appropriately. There hasn't really been any success with this argument that I am aware of, but I think it's considerably more accurate if you read the definitions in the Act.
As for 512, it offers a safe harbor to ISPs, but is of no use, really, to end user infringers. There are four safe harbors, in fact, for four different types of conduct by the ISPs which, without the safe harbor, could be considered to be secondary infringement. They are: communicating, caching, storing, and indexing. Remember that sufficient assistance of, or in some cases, failure to prevent, another's infringement, can result in the second party being held liable for the first party's infringement. This is what did Napster in; not only were its users responsible for their infringements, but Napster was also responsible, since it helped them. While 512 does treat mere communication (i.e. allowing an infringer to infringe using your lines and bandwidth and so on) differently from more substantial infringements such as storing (i.e. providing server space to a user which he uses to infringe), that really isn't going to be enough for your argument.
Instead, you should concentrate on 17 USC 501(a), 106(1),(3), and 101. Those three tell the whole prima facie story for uploading and downloading as infringements. There can be applicable exceptions, but those only will work under certain circumstances. None of them is broad enough to shield all downloading of any kind.
I'd like to see some broad exceptions to protect natural persons acting non-commercially, and to treat computers more sensibly, since their inner workings necessitate lots of copying all the time, and that pervasive but low-level copying shouldn't be held against them. But for the moment, we don't have those.
Well, I am thinking of Motown v. DePietro, where the E.D. Pa. said (edited a bit):
Since it's coming out of a district court, it would only be influential precedent, rather than binding, but that any court would make this interpretation is new and worthy of concern. I wouldn't dismiss it out of hand, if I were you. We have enough problems with bad precedents such as MAI v. Peak. We don't need this.
[Downloading] is specifically described in the legislation as not being infringing.
Bearing in mind that we are talking about US law, please cite the statute in question. I know you can't cite 17 USC 117, since it only applies to computer software, and you can't cite 17 USC 1008, since it doesn't apply to computers (which is good, since if it did, computers would be required to employ and respect the SCMS DRM system, and there would be a royalty payment due for computers, and you can't cite 17 USC 512, since it deals with ISPs and not end users. You've got me curious now as to what you will cite.