The act of downloading a song is not distribution. The act of uploading a song is distribution.
That is correct, but I wasn't talking about it being distribution. Downloading is reproduction, a different type of potentially infringing conduct.
However, in Canada, which is what we're supposed to be talking about, even uploading is not considered distribution.
Well, you're the one that brought up the US. I don't know Canadian law and I'm not going to make any claims about it.
Even in the US, proving that someone has uploaded a song is next to impossible which the record companies have been finding out in recent months.
Meh. OTOH, there is beginning to be some precedent that merely making a work available for others is distribution, even if nothing else happens. And of course, it's actually fairly easy to prove if the plaintiff is the one who downloads it from the uploader. The tricky thing is to prove that it was distributed to someone other than the plaintiff.
[Downloading music for your own personal use is] also not illegal in the US
It depends. If it's copyrighted music, and you're downloading it without the permission of the copyright holder, then it is prima facie infringement. It might not be infringing if it's a fair use, but merely because it's for personal use doesn't necessarily mean that it will be a fair use. So I'd be careful; it's not accurate to say that it's not illegal, as a blanket statement. It might be legal, it might be illegal, it depends on the circumstances, and it is important to be cautious about it.
You changed the format from print to digital. That right there made it unique.
But not copyrightable. Note also that uniqueness is irrelevant for copyright purposes. Two identical works, if of independent origin, are both copyrightable, and neither is an infringement upon the other. It's tricky to be able to show that they are independent, but it's possible. (Someone will no doubt chime in with Bright Tunes v. Harrissongs in just a moment to illustrate just how tricky)
So basically the new arrangement is yours to copyright.
However, 1) that only covers the arrangement, and not the contents. Someone could still copy the recipes themselves from that arrangement, which likely makes this of little value to the earlier poster. 2) You assume that the arrangement is copyrightable. However, this is difficult, as it has to be creative and originate with the re-arranger. It is possible, but I'd like to see it. And as I said, it is not a significant obstacle to anyone else. There is no requirement that they go back to the original printing.
The Berne Convention is not in force in the United States. We have enacted our own laws which, according to us, completely fulfill our obligations under Berne. And yet, some, but certainly not all, layout is protected.
Of course, Berne is a bad idea, and we should abandon it ASAP so it's not as though I would care if we did happen to not comply. Indeed, many important copyright reforms require throwing Berne in the garbage can, where it belongs.
Re:As an ebook publisher making pocket change
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False Copyright Claims
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· Score: 5, Informative
But I had to spend a couple of days OCRing the material, cleaning it up, and formatting it. Anyone else wanting to sell it, or give it away, should have to do the same, not swipe my work.
The Supreme Court and the Constitution disagree with you. The authoritative case on your 'sweat of the brow' argument is Feist v. Rural. Here's the good bits, rearranged and edited a bit for clarity:
[Some] courts developed a new theory to justify the protection of factual compilations. Known alternatively as "sweat of the brow" or "industrious collection," the underlying notion was that copyright was a reward for the hard work that went into compiling facts. The classic formulation of the doctrine appeared in Jeweler's Circular Publishing Co.:
"The right to copyright a book upon which one has expended labor in its preparation does not depend upon whether the materials which he has collected consist or not of matters which are publici juris, or whether such materials show literary skill or originality, either in thought or in language, or anything more than industrious collection. The man who goes through the streets of a town and puts down the names of each of the inhabitants, with their occupations and their street number acquires material of which he is the author.
The"sweat of the brow" doctrine had numerous flaws, the most glaring being that it extended copyright protection in a compilation beyond selection and arrangement - the compiler's original contributions - to the facts themselves. Under the doctrine, the only defense to infringement was independent creation. A subsequent compiler was "not entitled to take one word of information previously published," but rather had to "independently wor[k] out the matter for himself, so as to arrive at the same result from the same common sources of information."...
Without a doubt, the "sweat of the brow" doctrine flouted basic copyright principles.... "Sweat of the brow" courts... handed out proprietary interests in facts and declared that authors are absolutely precluded from saving time and effort by relying upon the facts contained in prior works. In truth, "[i]t is just such wasted effort that the proscription against the copyright of ideas and facts . . . [is] designed to prevent." "Protection for the fruits of such research . . . may, in certain circumstances, be available under a theory of unfair competition. But to accord copyright protection on this basis alone distorts basic copyright principles in that it creates a monopoly in public domain materials without the necessary justification of protecting and encouraging the creation of `writings' by `authors.'"...
The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble or obvious" it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works, so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable.
Originality is a constitutional requirement. The source of Congress' power to enact copyright laws is Article I, 8, cl. 8, of the Constitution, which authorizes Congress to "secur[e] for limited Times to Authors . . . the exclusive Right to their respective Writings." In two decisions from the late 19th Century - The Trade-Mark Cases, and Burrow-
That's interesting. But they're generally not protected in the US. I can imagine cases where they would qualify, but usually typesetting and layout are simply not sufficiently creative to be copyrightable.
Perhaps in the interest of preserving the public domain, there should be law stating that any use of public domain material within derivative works should also fall within the public domain.
That's already the law. You can read it at 17 USC 103(b). But it only covers that portion of the derivative work. So if you, say, make a movie where there is a scene involving you reading one of Shakespeare's sonnets, then the sonnet is still in the public domain. Anyone can watch that movie and copy down the sonnet, rather than having to consult some other source to get it. However, they can't copy anything from the movie that is copyrighted, such as the video or audio of you reciting the sonnet, or the remainder of the movie; only the sonnet itself. This applies to derivatives of anything, by the way; whatever portions of the work are derived from elsewhere keep their original copyright status and do not acquire the status of the newer work. E.g. Disney's 'Fantasia 2000' is mostly going to have a copyright date of 1999, but since part of it ('The Sorcerer's Apprentice') is from the original 1940 movie, that portion is still treated as a 1940 work, and will enter the public domain before the newer parts of the movie.
It's not viral though. The use of public domain materials in a derivative work doesn't make the entire work derivative.
Re:Public Domain Can Be Re- Copyrighted
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False Copyright Claims
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· Score: 5, Informative
Although he's right that merely digitizing or copying a public domain work does not result in a new copyright, creating a collection of public domain works does.
Well, it may, but it doesn't necessarily. A compilation is only copyrightable if the selection and arrangement is itself sufficiently creative. And the compilation copyright only pertains to the copyrightable portions of the selection and arrangement; not the materials which compromise the compilation.
What if trademarks were put in place by the creator while the material was still copyrighted? Once those copyrights expire, but the Star Wars trademarks are still thriving, can anybody start making Luke Skywalker dolls to compete against the official doll? Can somebody make their own Star Wars movie using the Luke Skywalker character?
As long as they don't engage in customer confusion, then it doesn't matter when the trademark started. A trademark is only good so long as it identifies that goods or services marked with it originate from a single source. Right now, all Luke Skywalker action figures (I'll thank you to not refer to them as dolls;) originate, ultimately, from Lucasfilm. If anyone can make them, then the trademark dies.
(BTW, I just noticed your Slashdot ID# or whatever it is called. I think that is the lowest I have ever seen.)
It's actually higher than it could have been, really. I was on/. before there were user accounts, and back then you just typed in your name along with your post. I preferred that to user accounts, so I didn't bother to get an account until they stopped letting people post in that fashion. My roommate at the time was Altus, who has account #1074, so if I had signed up for a user name immediately, mine probably would've been around there. In any case, if you want to see the lowest, look here.
Many of the classics of auteur cinema were funded by private patronage because the patron believed in the vision of the auteur. Neither patron nor auteur cared if the film became a blockbuster and brought back millions in profit.
Quite true. But in that case, copyright is irrelevant. It would be against public policy to even give them a copyright (since it would not be an incentive for them to make something, yet would still burden the public), and the patron and artist wouldn't care, since they are ignoring the economics, and copyright only deals with economics.
So other than that we will want to set up a mechanism to help weed them out (e.g. a registration formality, and many very short terms with renewals), we can generally ignore them.
Star Wars is somewhat of an exception, but the re-released works are all modified, and wouldn't that mean copyright for -that version- for the next 14 years? The original version could very well be watched/distributed/copied for free, but the enhanced version would still be owned by the originator.
It would mean a copyright on the differences, provided that those differences constitute a copyrightable work in themselves. For example, the portions of Peter Pan as made by Disney which are the same as that of the original works by Barrie are in the public domain. So you could mine the Disney movie for things like the names of characters like Peter, Wendy, or Captain Hook, or that there is a Never-Never Land and so forth. OTOH, things like the visual appearance of the characters, or newly introduced story elements, would fall under Disney's copyright. So while there are portions of the re-released Star Wars movies which are newly copyrighted, there aren't many. And scenes which are left unchanged could be used in their entirety when the former version expires, even if you happen to get it from the latter version.
Music tends to have a little longer lifespan, of course.
I think that it was certain sorts of textbooks that seem to have the longest lifespan, while newspapers or certain TV programs have the shortest. (Which likely explains why you cannot get DVDs of various seasons of the Daily Show. It's too topical.) But the lifespan is still fairly short. In fact, whole musical genres come and go with increasing rapidity now that we have sound recordings.
Someone else also noted that trademarks are a different thing entirely, and Disney's characters would still be protected. This applies to Star Wars as well, and McDonald's could not give away Jar Jar Binks toys in 14 years without licensing them. (Unless they gave away 14 yr old toys, possibly... That'd go well.)
Where trademarks and copyrights collide, copyrights tend to win. This because there is a strong policy in trademark law to not prevent people from using public domain material. Further, where use of a word or symbol which is also a trademark is such that there is no confusion amongst consumers, the use is protected. So if Star Wars were in the public domain, you could make toys based upon characters from the movies, advertise that they were based upon the movies, and use the character names, all without infringing on Kenner or Lucasfilm trademarks, because you're not doing anything to confuse the consumer as to where the toys originate from, or whether they are authorized by anyone in particular, but rather you're merely describing the toys.
This is why Disney has such a hard-on for copyright terms. If Steamboat Willy hits the public domain then they lose much of the Mickey Mouse trademark.
Movies though are very expensive to make, and I could see where they would want longer time periods.
No, not really.
Remember two things. First, that movies are just an investment, just like anything else. If the movie doesn't make enough money soon enough, then the investor will be unhappy, because they could have put that money in the stock market (or whatever) and gotten a better return on their money. Investors will always want the best return; if they think there is a better alternative, then they will go with that instead. They are not obligated to finance movies.
Second, that movies, like everything else, almost always make their money pretty rapidly. When a movie comes out in theaters, it will make 90% of all the money it will ever make in theaters, within a few weeks, tops. After several weeks, the movie is no longer making much money in ticket sales, and will be dropped. Second run theaters may pick it up, but roughly the same thing will happen. Then the movie will go to pay-per-view TV, make most of its lifetime PPV money in a few weeks, and quiet down again. The movie will go to DVD, premium cable, basic cable, broadcast tv, etc. each time making most of its lifetime money in that format quite rapidly, and then never again making so much.
It is very rare that a movie ever is popular and successful enough to warrant a second round of publication in a given medium.
Star Wars is a rare exception. Getting a success like that is akin to winning the lottery. It is not appropriate to build policy around it, any more than we would institute a flat tax of $1 million per year on each person, on the assumption that everyone always wins the lottery and thus has millions of dollars available to them. Lucas would still have been wildly successful given a 14 year term, and it's better that only he suffer a slight reduction in his benefit than that you lengthen the copyright term, imposing a burden on absolutely everyone, just to help him, an already-successful person.
Another issue that could up though is big corporations using your work to make millions of dollars. If Star Wars copyright expired after 14 years, anybody in the world could left frames from the movie and do their own "promotions" whenever the next movie came out. Scenes from the original could be plastered on fast food soda cups all over the world just in time for the next movie release.
So what?
This happens to Disney all the time. When they make their version of some fairy tale, then there are always plenty of other people making low budget versions of the same fairy tale, hoping to ride Disney's coat-tails. It doesn't seem to have any real negative impact. Marketing a new thing is typically not going to be affected by someone else marketing something older or different.
Property is simply that which can be owned, as determined by the public will. In simplified terms, anything created by an individual, or acquired from nature through the efforts of that individual, is by default the property of that individual, and can generally be exchanged with or given to others. The rest of property springs from this simple basis, with of course various qualifications and exceptions which vary from one society to another.
That sounds rather needlessly complicated to me. I'm reminded of the attempts to square the geocentric model with observational data.
However, would you favour a policy by which the state refuses to guarantee the property rights of such banks? This is what you are suggesting in the case of artists using DRM.
Not at all. Remember, I believe that there is no pre-existing right, and that any such right is stemming from the government to begin with. The government can condition whether or not it will dole out such rights, just as it does with its other spending and concessions. Copyright can be thought of, to a degree, in the nature of a bargain: an artist can get one, if his work meets certain minimum standards, and he undertakes a few minor formalities. If one such formality is to not use, nor authorize his licensees to use, DRM, then that's fine.
Do you believe you have an inherent right to the thoughts expressed by another?
I have no inherent right to access it initially. I cannot force someone to publish. However, if they do publish, whether because they would have anyway, or because I have incentivized them to, then yes, I do have an inherent right to it. I may forgo this right temporarily and to a limited extent, if it suits me to do so, but I'm not obligated to.
If you dislike the way in which others choose to express their thoughts, you are absolutely free to ignore them. They are not harming you by not sharing the expression of their thoughts with you, or by sharing them only in a way you disapprove of.
I agree. But I needn't give them any monopolies over those works. I should not have to bear the cost of bolstering a means of sharing those works in a manner in which I disapprove. Let them bear the whole burden. If they want me to subsidize them, then I they're going to need to make me willing to.
By default you have no access to these expressions.
Yes, if they have been hidden away from everyone other than the author. But this makes them moot as far as a discussion of copyright goes. If your work has never been shared with anyone, if no one else has access, then you don't need a copyright. Nor is it in the public interest to encourage this sort of behavior. Only if your work is being accessed by others is a copyright at all useful. And it is in the public interest to encourage authors to let others engage in that initial access.
Most people still buy DVDs, for example, because it's easier than copying them. A growing number of people are also buying and downloading music protected with DRM, because it is actually easier for them than illegally downloading music that is not protected by DRM.
I agree, but I don't think that DRM has a role in this. People have various internal norms regarding copyright. While casual non-commercial piracy is certainly widely viewed as being pretty acceptable, everyone is agreed that authorizedly-made copies are legitimate to buy. If they're convenient enough and inexpensive enough as compared to alternatives, people will buy them, often with their conception of legitimacy playing a significant, though not always decisive role. OTOH, DRM can often impair convenience, and pirated works are often available at a very low cost these days. So, when people run into some especially obnoxious DRM (e.g. on a computer video game) it's apt to get circumvented a lot.
CSS has been broken for years, and certainly plenty of DVDs get ripped and shared around. But it wasn't lawsuits against the purveyors of various circumvention tools that
I do remember the ERA, in fact. I remember that it passed in Congress in 1972, and only needed to be ratified by the states, which didn't happen, ultimately. It was not the product of the states bypassing Congress.
The federal constitution is brief, because the government they put together was rather limited. State governments are plenary, and have long constitutions. And laws are often of significant length, because they deal with complex issues, carefully.
Saying that all laws should be brief is as foolish as saying that all computer software ought to fit on a floppy disk, along with a copy of the OS. It's possible, but that doesn't make it necessarily good.
Of course, the last time that things got to that point was when the states decided that they needed to make some small tweaks to the Articles of Confederation, in order to make a more perfect union.
No, FDR did not follow through on his court-packing plan. He didn't have to, because the Court gave in to the mere threat of it. Look it up, for God's sake.
This is only a minor modification, expanding upon the initial assumption. Your three requirements appear to have been derived from examining the attributes of land and personal property.
Actually, it is an attempt to look at property ontologically. If you have a better suggestion for a test for determining whether or not something is property, feel free to let me know. So far it appears that you're just picking what you do and don't want to be property and saying that they're property because that's what you've picked. I don't see rhyme or reason to it.
If one can read a book, how do you suggest DRM can ever prevent one manually copying passages from it?
I don't know. But you don't know how to get cold fusion to work, but you seem confident that if it's possible, someone will figure it out. There's all manner of technologies yet to be invented which can challenge our present imaginations.
No, not at all. You are suggesting punishing (or perhaps in your view refusing to reward) authors who take advantage of technology to enforce their rights. Would you propose punishing banks using the latest technology to secure their vaults, because it makes it more cumbersome for you to legally access assets held in such banks?
Refusing to reward is correct. As for banks, if I were the customer of such a bank, and I found the bank's procedures to be cumbersome, I might take my business elsewhere. The bank wants my business, since I give it something of value, but I'm only going to do so where what I get is of greater value to me than what I give. The copyright situation is similar: if artists want the government to grant them copyrights, it needs to provide sufficiently good benefit. Otherwise the government can stop giving them copyrights, or give out lesser copyrights instead. Unlike with the bank, which can at least rely on other customers to keep it in business, the government can easily be the only copyright-granting authority in the country. So it has excellent bargaining power, if opts to use it.
By 'not tolerate', you mean coerce authors into avoiding technology they would otherwise use to protect their works.
What is copyright by a way to coerce authors (using only rewards, not punishments, mind you) to creating and publishing works which they otherwise would not have? There's nothing odd about this kind of coercion here.
If their legal rights were being respected, they would not have the need to use DRM. DRM is a result of the failure (or inability) of the state to enforce laws protecting those rights.
I disagree with you. I think that they would use DRM anyway, partially to guard against the mere possibility, even if that possibility were wholly unreasonable, that there might be an infringement; and partially to prevent legal unauthorized uses of their works which do not infringe on the rights of the copyright holder, but which the copyright holder nevertheless dislikes. Indeed, most, if not all DRM systems I'm aware of go well beyond merely protecting the rights of the copyright holder and infringe on the rights of the public as well. If the DRM-user is unwilling to respect my legal rights, why should I be even slightly sympathetic to him?
Also, the state shouldn't be involved with enforcement. Copyright law should be purely civil.
They will use whatever technology they feel it is in their interest to use.
Sure. And I aim only to arrange matters so that it is in their interest to not use DRM. I would never prohibit them from doing so, but I have no qualms about stacking the deck.
Do you actually think authors/artists using DRM now would give it up in exchange for copyright protection which has been shown to be largely impotent with respect to unprotected works?
Yes. Even if we stipulate that copyright is "largely impotent," though I think you underestimate the power of a strongly worded letter, events have proven DRM to be utterly impotent. Consider DeCSS or AACS. If people are
Despite what you may think, Democrats would not leave the country short one of its executive positions for a year and a half just for politics.
The position has been left vacant before, sometimes for years. But I agree. If the Democrats actually decided to do something, and could manage it, what would likely happen would be:
1) Bush and Chaney are impeached by the House 2) Bush and Chaney are tried by the Senate.
It's not necessary for these to proceed in parallel.
3) After both have been tried, the Senate simultaneously removes both from office, leaving the Presidency and Vice-Presidency vacant.
4) The Speaker of the House automatically becomes President, resigns from Congress, and the House chooses a new Speaker as a replacement.
5) The new President nominates a new Vice-President, who is confirmed by the House and Senate.
And since it's possible that Chaney might be in the position of presiding over his own impeachment trial, the Senate will have to vote to expel Chaney from his capacity as President of the Senate for the duration of the trial.
And put Nancy Pelosi in power through what would be a - perfectly legitimate under the constitution - coup? I wouldn't vote for that; the precendent it would set would end up destroying the country as much or more than Bush already has.
First, the Democrats can always find someone else to be Speaker for the purpose of putting them in line to become President. It needn't be Pelosi. Second, it's hardly a coup; the Constitution is designed to permit for impeachment and removal. It is a check on the President and even on the political process (remember that the framers didn't trust anyone with too much power, not even the electorate). There's no guarantee, after all, that the new President would do well in the 2008 election (c.f. Jerry Ford). In fact, I imagine that even though most of the country would be pleased at getting rid of Bush and Chaney, that they would not particularly care for whoever wound up replacing them, and that the Democrats would be wise to make sure that the replacements didn't even run in '08. I don't care for Pelosi, by the way, but I doubt she could be much worse than Bush. In fact the main thing I dislike about her is her unwillingness to pursue impeachment.
First, the removals could occur simultaneously. Second, a VP nominee has to be approved by both houses, but neither house is required to do so. The Constitution doesn't require them to vote immediately or force them to approve. If they don't want to vote, no one can make them.
There are almost always other, conflicting rights, hence the need for specifics statutes and/or case law in specific cases. It is a red herring to suggest this is in any way unique to the rights associated with intellectual property.
I suggested that it was unique?
As I see it, your argument runs as such:
(1) Assumption: There are only two forms of property which are qualitatively different, namely land and personal property
(2) Deduction: Given (1), if intellectual property is property, it must be defined as either land or personal property
(3) Observation: Intellectual property is qualitatively different from land
(4) Observation: Intellectual property is qualitatively different from personal property
(5) Deduction: Given (3) and (4), intellectual property is neither land nor personal property
(6) Conclusion: Given (2) and (5), intellectual property is not in fact property
Actually, my argument is that there are certain minimum requirements for anything to be property of any sort: 1) it has to be capable of being used by the owner; 2) it has to be capable of being lendable in some fashion to others, and recoverable by the owner, and; 3) it has to be capable of being disposed of by the owner, by destruction, sale, or other means. In 99.44% of cases, a creative work doesn't meet the requirements of 2 or 3. I don't care that a creative work is merely unlike land. I care that it has attributes which preclude exclusive use without the addition of artificial things such as copyrights.
Why is your opinion more authoritative than that of the WIPO?
Honesty. I'm not the one making an appeal to existing emotions and norms about property for something which is sui generis. I'm willing to call a spade a spade. This is why, while I'd certainly like it if copyrights were not considered property for Takings Clause purposes if that would interfere with retroactively reducing the term and scope of the right, I'm fully prepared to acknowledge that it is unlikely and will simply have to be lived with. I don't want to try to redefine things to suit my purposes.
DRM is simply technology that makes it more difficult to violate an author's rights, as a reaction to technology that has made it easier to do so.
Yes, but it doesn't stop there. In practice, it makes it more difficult to do things which do not violate an author's rights, but which may make the author unhappy. An unhappy author who lacks rights to stop a particular bit of conduct can go screw, as far as I'm concerned; I don't like him being able to enforce his will beyond the degree to which the law has already granted.
DRM does not stop me reading a passage from a book and typing in a copy of it, nor creating an analogue copy of audio/video material.
Yet.
In the case of text, an exact duplication is possible, it simply requires more effort, just as it did in the past. With respect to audio/video material, analogue copies are still possible, again, just as they were in the past.
So you're saying that the public should not be able to reap the benefit of improved technology, but that authors should be able to reap the benefit of it for themselves, and also be able to stop its use by others? That's like saying that authors ought to be allowed to use DTP software, but that the ordinary public ought to be required to write longhand just to ward against the danger that they'll engage in piratical typesetting. Or, looking forward, if we invented the replicators from Star Trek, that we should not be allowed to use them to end world hunger because it would put the farmers and the chefs out of business.
New technologies can radically alter what the best copyright balance can be. Just because we put up with crappy technology in the past, and our abilities were limited as a result, doesn't mean that we should tolerate this in the future. I'm reminded of what J. Brandeis wrote in the Olmstead case (which dealt with wiretapping, b
Late Army Lt. Walter Haut had signed a sealed affidavit prior to his death last year asserting that he had witnessed the wreckage of an egg-shaped craft and its extraterrestrial crew while working at the Roswell Army Air Field.
Great, of all the aliens that could possibly land on Earth, we wound up with Orkans.
Hm. Well, in the US, our 10 and 25 coins used to be silver, with the former proportionately smaller than the latter. There used to be silver 5 coins, but they were impractically small. When the nickel replaced them, for some weird reason, the mint decided to make the coin 5g in mass (none of our other coins are metric), and made of less precious metal, and so we wound up with the current odd relative sizes.
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The act of downloading a song is not distribution. The act of uploading a song is distribution.
That is correct, but I wasn't talking about it being distribution. Downloading is reproduction, a different type of potentially infringing conduct.
However, in Canada, which is what we're supposed to be talking about, even uploading is not considered distribution.
Well, you're the one that brought up the US. I don't know Canadian law and I'm not going to make any claims about it.
Even in the US, proving that someone has uploaded a song is next to impossible which the record companies have been finding out in recent months.
Meh. OTOH, there is beginning to be some precedent that merely making a work available for others is distribution, even if nothing else happens. And of course, it's actually fairly easy to prove if the plaintiff is the one who downloads it from the uploader. The tricky thing is to prove that it was distributed to someone other than the plaintiff.
[Downloading music for your own personal use is] also not illegal in the US
It depends. If it's copyrighted music, and you're downloading it without the permission of the copyright holder, then it is prima facie infringement. It might not be infringing if it's a fair use, but merely because it's for personal use doesn't necessarily mean that it will be a fair use. So I'd be careful; it's not accurate to say that it's not illegal, as a blanket statement. It might be legal, it might be illegal, it depends on the circumstances, and it is important to be cautious about it.
You changed the format from print to digital. That right there made it unique.
But not copyrightable. Note also that uniqueness is irrelevant for copyright purposes. Two identical works, if of independent origin, are both copyrightable, and neither is an infringement upon the other. It's tricky to be able to show that they are independent, but it's possible. (Someone will no doubt chime in with Bright Tunes v. Harrissongs in just a moment to illustrate just how tricky)
So basically the new arrangement is yours to copyright.
However, 1) that only covers the arrangement, and not the contents. Someone could still copy the recipes themselves from that arrangement, which likely makes this of little value to the earlier poster. 2) You assume that the arrangement is copyrightable. However, this is difficult, as it has to be creative and originate with the re-arranger. It is possible, but I'd like to see it. And as I said, it is not a significant obstacle to anyone else. There is no requirement that they go back to the original printing.
The Berne Convention is not in force in the United States. We have enacted our own laws which, according to us, completely fulfill our obligations under Berne. And yet, some, but certainly not all, layout is protected.
Of course, Berne is a bad idea, and we should abandon it ASAP so it's not as though I would care if we did happen to not comply. Indeed, many important copyright reforms require throwing Berne in the garbage can, where it belongs.
The Supreme Court and the Constitution disagree with you. The authoritative case on your 'sweat of the brow' argument is Feist v. Rural. Here's the good bits, rearranged and edited a bit for clarity:
Layouts are protected under the Berne Convention.
That's interesting. But they're generally not protected in the US. I can imagine cases where they would qualify, but usually typesetting and layout are simply not sufficiently creative to be copyrightable.
Perhaps in the interest of preserving the public domain, there should be law stating that any use of public domain material within derivative works should also fall within the public domain.
That's already the law. You can read it at 17 USC 103(b). But it only covers that portion of the derivative work. So if you, say, make a movie where there is a scene involving you reading one of Shakespeare's sonnets, then the sonnet is still in the public domain. Anyone can watch that movie and copy down the sonnet, rather than having to consult some other source to get it. However, they can't copy anything from the movie that is copyrighted, such as the video or audio of you reciting the sonnet, or the remainder of the movie; only the sonnet itself. This applies to derivatives of anything, by the way; whatever portions of the work are derived from elsewhere keep their original copyright status and do not acquire the status of the newer work. E.g. Disney's 'Fantasia 2000' is mostly going to have a copyright date of 1999, but since part of it ('The Sorcerer's Apprentice') is from the original 1940 movie, that portion is still treated as a 1940 work, and will enter the public domain before the newer parts of the movie.
It's not viral though. The use of public domain materials in a derivative work doesn't make the entire work derivative.
Although he's right that merely digitizing or copying a public domain work does not result in a new copyright, creating a collection of public domain works does.
Well, it may, but it doesn't necessarily. A compilation is only copyrightable if the selection and arrangement is itself sufficiently creative. And the compilation copyright only pertains to the copyrightable portions of the selection and arrangement; not the materials which compromise the compilation.
What if trademarks were put in place by the creator while the material was still copyrighted? Once those copyrights expire, but the Star Wars trademarks are still thriving, can anybody start making Luke Skywalker dolls to compete against the official doll? Can somebody make their own Star Wars movie using the Luke Skywalker character?
;) originate, ultimately, from Lucasfilm. If anyone can make them, then the trademark dies.
/. before there were user accounts, and back then you just typed in your name along with your post. I preferred that to user accounts, so I didn't bother to get an account until they stopped letting people post in that fashion. My roommate at the time was Altus, who has account #1074, so if I had signed up for a user name immediately, mine probably would've been around there. In any case, if you want to see the lowest, look here.
As long as they don't engage in customer confusion, then it doesn't matter when the trademark started. A trademark is only good so long as it identifies that goods or services marked with it originate from a single source. Right now, all Luke Skywalker action figures (I'll thank you to not refer to them as dolls
(BTW, I just noticed your Slashdot ID# or whatever it is called. I think that is the lowest I have ever seen.)
It's actually higher than it could have been, really. I was on
Many of the classics of auteur cinema were funded by private patronage because the patron believed in the vision of the auteur. Neither patron nor auteur cared if the film became a blockbuster and brought back millions in profit.
Quite true. But in that case, copyright is irrelevant. It would be against public policy to even give them a copyright (since it would not be an incentive for them to make something, yet would still burden the public), and the patron and artist wouldn't care, since they are ignoring the economics, and copyright only deals with economics.
So other than that we will want to set up a mechanism to help weed them out (e.g. a registration formality, and many very short terms with renewals), we can generally ignore them.
Star Wars is somewhat of an exception, but the re-released works are all modified, and wouldn't that mean copyright for -that version- for the next 14 years? The original version could very well be watched/distributed/copied for free, but the enhanced version would still be owned by the originator.
It would mean a copyright on the differences, provided that those differences constitute a copyrightable work in themselves. For example, the portions of Peter Pan as made by Disney which are the same as that of the original works by Barrie are in the public domain. So you could mine the Disney movie for things like the names of characters like Peter, Wendy, or Captain Hook, or that there is a Never-Never Land and so forth. OTOH, things like the visual appearance of the characters, or newly introduced story elements, would fall under Disney's copyright. So while there are portions of the re-released Star Wars movies which are newly copyrighted, there aren't many. And scenes which are left unchanged could be used in their entirety when the former version expires, even if you happen to get it from the latter version.
Music tends to have a little longer lifespan, of course.
I think that it was certain sorts of textbooks that seem to have the longest lifespan, while newspapers or certain TV programs have the shortest. (Which likely explains why you cannot get DVDs of various seasons of the Daily Show. It's too topical.) But the lifespan is still fairly short. In fact, whole musical genres come and go with increasing rapidity now that we have sound recordings.
Someone else also noted that trademarks are a different thing entirely, and Disney's characters would still be protected. This applies to Star Wars as well, and McDonald's could not give away Jar Jar Binks toys in 14 years without licensing them. (Unless they gave away 14 yr old toys, possibly... That'd go well.)
Where trademarks and copyrights collide, copyrights tend to win. This because there is a strong policy in trademark law to not prevent people from using public domain material. Further, where use of a word or symbol which is also a trademark is such that there is no confusion amongst consumers, the use is protected. So if Star Wars were in the public domain, you could make toys based upon characters from the movies, advertise that they were based upon the movies, and use the character names, all without infringing on Kenner or Lucasfilm trademarks, because you're not doing anything to confuse the consumer as to where the toys originate from, or whether they are authorized by anyone in particular, but rather you're merely describing the toys.
This is why Disney has such a hard-on for copyright terms. If Steamboat Willy hits the public domain then they lose much of the Mickey Mouse trademark.
Movies though are very expensive to make, and I could see where they would want longer time periods.
No, not really.
Remember two things. First, that movies are just an investment, just like anything else. If the movie doesn't make enough money soon enough, then the investor will be unhappy, because they could have put that money in the stock market (or whatever) and gotten a better return on their money. Investors will always want the best return; if they think there is a better alternative, then they will go with that instead. They are not obligated to finance movies.
Second, that movies, like everything else, almost always make their money pretty rapidly. When a movie comes out in theaters, it will make 90% of all the money it will ever make in theaters, within a few weeks, tops. After several weeks, the movie is no longer making much money in ticket sales, and will be dropped. Second run theaters may pick it up, but roughly the same thing will happen. Then the movie will go to pay-per-view TV, make most of its lifetime PPV money in a few weeks, and quiet down again. The movie will go to DVD, premium cable, basic cable, broadcast tv, etc. each time making most of its lifetime money in that format quite rapidly, and then never again making so much.
It is very rare that a movie ever is popular and successful enough to warrant a second round of publication in a given medium.
Star Wars is a rare exception. Getting a success like that is akin to winning the lottery. It is not appropriate to build policy around it, any more than we would institute a flat tax of $1 million per year on each person, on the assumption that everyone always wins the lottery and thus has millions of dollars available to them. Lucas would still have been wildly successful given a 14 year term, and it's better that only he suffer a slight reduction in his benefit than that you lengthen the copyright term, imposing a burden on absolutely everyone, just to help him, an already-successful person.
Another issue that could up though is big corporations using your work to make millions of dollars. If Star Wars copyright expired after 14 years, anybody in the world could left frames from the movie and do their own "promotions" whenever the next movie came out. Scenes from the original could be plastered on fast food soda cups all over the world just in time for the next movie release.
So what?
This happens to Disney all the time. When they make their version of some fairy tale, then there are always plenty of other people making low budget versions of the same fairy tale, hoping to ride Disney's coat-tails. It doesn't seem to have any real negative impact. Marketing a new thing is typically not going to be affected by someone else marketing something older or different.
Meh. Ninety percent of Sturgeon's work was crud.
Property is simply that which can be owned, as determined by the public will. In simplified terms, anything created by an individual, or acquired from nature through the efforts of that individual, is by default the property of that individual, and can generally be exchanged with or given to others. The rest of property springs from this simple basis, with of course various qualifications and exceptions which vary from one society to another.
That sounds rather needlessly complicated to me. I'm reminded of the attempts to square the geocentric model with observational data.
However, would you favour a policy by which the state refuses to guarantee the property rights of such banks? This is what you are suggesting in the case of artists using DRM.
Not at all. Remember, I believe that there is no pre-existing right, and that any such right is stemming from the government to begin with. The government can condition whether or not it will dole out such rights, just as it does with its other spending and concessions. Copyright can be thought of, to a degree, in the nature of a bargain: an artist can get one, if his work meets certain minimum standards, and he undertakes a few minor formalities. If one such formality is to not use, nor authorize his licensees to use, DRM, then that's fine.
Do you believe you have an inherent right to the thoughts expressed by another?
I have no inherent right to access it initially. I cannot force someone to publish. However, if they do publish, whether because they would have anyway, or because I have incentivized them to, then yes, I do have an inherent right to it. I may forgo this right temporarily and to a limited extent, if it suits me to do so, but I'm not obligated to.
If you dislike the way in which others choose to express their thoughts, you are absolutely free to ignore them. They are not harming you by not sharing the expression of their thoughts with you, or by sharing them only in a way you disapprove of.
I agree. But I needn't give them any monopolies over those works. I should not have to bear the cost of bolstering a means of sharing those works in a manner in which I disapprove. Let them bear the whole burden. If they want me to subsidize them, then I they're going to need to make me willing to.
By default you have no access to these expressions.
Yes, if they have been hidden away from everyone other than the author. But this makes them moot as far as a discussion of copyright goes. If your work has never been shared with anyone, if no one else has access, then you don't need a copyright. Nor is it in the public interest to encourage this sort of behavior. Only if your work is being accessed by others is a copyright at all useful. And it is in the public interest to encourage authors to let others engage in that initial access.
Most people still buy DVDs, for example, because it's easier than copying them. A growing number of people are also buying and downloading music protected with DRM, because it is actually easier for them than illegally downloading music that is not protected by DRM.
I agree, but I don't think that DRM has a role in this. People have various internal norms regarding copyright. While casual non-commercial piracy is certainly widely viewed as being pretty acceptable, everyone is agreed that authorizedly-made copies are legitimate to buy. If they're convenient enough and inexpensive enough as compared to alternatives, people will buy them, often with their conception of legitimacy playing a significant, though not always decisive role. OTOH, DRM can often impair convenience, and pirated works are often available at a very low cost these days. So, when people run into some especially obnoxious DRM (e.g. on a computer video game) it's apt to get circumvented a lot.
CSS has been broken for years, and certainly plenty of DVDs get ripped and shared around. But it wasn't lawsuits against the purveyors of various circumvention tools that
I do remember the ERA, in fact. I remember that it passed in Congress in 1972, and only needed to be ratified by the states, which didn't happen, ultimately. It was not the product of the states bypassing Congress.
The federal constitution is brief, because the government they put together was rather limited. State governments are plenary, and have long constitutions. And laws are often of significant length, because they deal with complex issues, carefully.
Saying that all laws should be brief is as foolish as saying that all computer software ought to fit on a floppy disk, along with a copy of the OS. It's possible, but that doesn't make it necessarily good.
Of course, the last time that things got to that point was when the states decided that they needed to make some small tweaks to the Articles of Confederation, in order to make a more perfect union.
No, FDR did not follow through on his court-packing plan. He didn't have to, because the Court gave in to the mere threat of it. Look it up, for God's sake.
Woz has this special ability, he is universally liked and respected.
I know. I hate and disrespect people like that!
This is only a minor modification, expanding upon the initial assumption. Your three requirements appear to have been derived from examining the attributes of land and personal property.
Actually, it is an attempt to look at property ontologically. If you have a better suggestion for a test for determining whether or not something is property, feel free to let me know. So far it appears that you're just picking what you do and don't want to be property and saying that they're property because that's what you've picked. I don't see rhyme or reason to it.
If one can read a book, how do you suggest DRM can ever prevent one manually copying passages from it?
I don't know. But you don't know how to get cold fusion to work, but you seem confident that if it's possible, someone will figure it out. There's all manner of technologies yet to be invented which can challenge our present imaginations.
No, not at all. You are suggesting punishing (or perhaps in your view refusing to reward) authors who take advantage of technology to enforce their rights. Would you propose punishing banks using the latest technology to secure their vaults, because it makes it more cumbersome for you to legally access assets held in such banks?
Refusing to reward is correct. As for banks, if I were the customer of such a bank, and I found the bank's procedures to be cumbersome, I might take my business elsewhere. The bank wants my business, since I give it something of value, but I'm only going to do so where what I get is of greater value to me than what I give. The copyright situation is similar: if artists want the government to grant them copyrights, it needs to provide sufficiently good benefit. Otherwise the government can stop giving them copyrights, or give out lesser copyrights instead. Unlike with the bank, which can at least rely on other customers to keep it in business, the government can easily be the only copyright-granting authority in the country. So it has excellent bargaining power, if opts to use it.
By 'not tolerate', you mean coerce authors into avoiding technology they would otherwise use to protect their works.
What is copyright by a way to coerce authors (using only rewards, not punishments, mind you) to creating and publishing works which they otherwise would not have? There's nothing odd about this kind of coercion here.
If their legal rights were being respected, they would not have the need to use DRM. DRM is a result of the failure (or inability) of the state to enforce laws protecting those rights.
I disagree with you. I think that they would use DRM anyway, partially to guard against the mere possibility, even if that possibility were wholly unreasonable, that there might be an infringement; and partially to prevent legal unauthorized uses of their works which do not infringe on the rights of the copyright holder, but which the copyright holder nevertheless dislikes. Indeed, most, if not all DRM systems I'm aware of go well beyond merely protecting the rights of the copyright holder and infringe on the rights of the public as well. If the DRM-user is unwilling to respect my legal rights, why should I be even slightly sympathetic to him?
Also, the state shouldn't be involved with enforcement. Copyright law should be purely civil.
They will use whatever technology they feel it is in their interest to use.
Sure. And I aim only to arrange matters so that it is in their interest to not use DRM. I would never prohibit them from doing so, but I have no qualms about stacking the deck.
Do you actually think authors/artists using DRM now would give it up in exchange for copyright protection which has been shown to be largely impotent with respect to unprotected works?
Yes. Even if we stipulate that copyright is "largely impotent," though I think you underestimate the power of a strongly worded letter, events have proven DRM to be utterly impotent. Consider DeCSS or AACS. If people are
Despite what you may think, Democrats would not leave the country short one of its executive positions for a year and a half just for politics.
The position has been left vacant before, sometimes for years. But I agree. If the Democrats actually decided to do something, and could manage it, what would likely happen would be:
1) Bush and Chaney are impeached by the House
2) Bush and Chaney are tried by the Senate.
It's not necessary for these to proceed in parallel.
3) After both have been tried, the Senate simultaneously removes both from office, leaving the Presidency and Vice-Presidency vacant.
4) The Speaker of the House automatically becomes President, resigns from Congress, and the House chooses a new Speaker as a replacement.
5) The new President nominates a new Vice-President, who is confirmed by the House and Senate.
And since it's possible that Chaney might be in the position of presiding over his own impeachment trial, the Senate will have to vote to expel Chaney from his capacity as President of the Senate for the duration of the trial.
And put Nancy Pelosi in power through what would be a - perfectly legitimate under the constitution - coup? I wouldn't vote for that; the precendent it would set would end up destroying the country as much or more than Bush already has.
First, the Democrats can always find someone else to be Speaker for the purpose of putting them in line to become President. It needn't be Pelosi. Second, it's hardly a coup; the Constitution is designed to permit for impeachment and removal. It is a check on the President and even on the political process (remember that the framers didn't trust anyone with too much power, not even the electorate). There's no guarantee, after all, that the new President would do well in the 2008 election (c.f. Jerry Ford). In fact, I imagine that even though most of the country would be pleased at getting rid of Bush and Chaney, that they would not particularly care for whoever wound up replacing them, and that the Democrats would be wise to make sure that the replacements didn't even run in '08. I don't care for Pelosi, by the way, but I doubt she could be much worse than Bush. In fact the main thing I dislike about her is her unwillingness to pursue impeachment.
First, the removals could occur simultaneously. Second, a VP nominee has to be approved by both houses, but neither house is required to do so. The Constitution doesn't require them to vote immediately or force them to approve. If they don't want to vote, no one can make them.
There are almost always other, conflicting rights, hence the need for specifics statutes and/or case law in specific cases. It is a red herring to suggest this is in any way unique to the rights associated with intellectual property.
I suggested that it was unique?
As I see it, your argument runs as such:
(1) Assumption: There are only two forms of property which are qualitatively different, namely land and personal property
(2) Deduction: Given (1), if intellectual property is property, it must be defined as either land or personal property
(3) Observation: Intellectual property is qualitatively different from land
(4) Observation: Intellectual property is qualitatively different from personal property
(5) Deduction: Given (3) and (4), intellectual property is neither land nor personal property
(6) Conclusion: Given (2) and (5), intellectual property is not in fact property
Actually, my argument is that there are certain minimum requirements for anything to be property of any sort: 1) it has to be capable of being used by the owner; 2) it has to be capable of being lendable in some fashion to others, and recoverable by the owner, and; 3) it has to be capable of being disposed of by the owner, by destruction, sale, or other means. In 99.44% of cases, a creative work doesn't meet the requirements of 2 or 3. I don't care that a creative work is merely unlike land. I care that it has attributes which preclude exclusive use without the addition of artificial things such as copyrights.
Why is your opinion more authoritative than that of the WIPO?
Honesty. I'm not the one making an appeal to existing emotions and norms about property for something which is sui generis. I'm willing to call a spade a spade. This is why, while I'd certainly like it if copyrights were not considered property for Takings Clause purposes if that would interfere with retroactively reducing the term and scope of the right, I'm fully prepared to acknowledge that it is unlikely and will simply have to be lived with. I don't want to try to redefine things to suit my purposes.
DRM is simply technology that makes it more difficult to violate an author's rights, as a reaction to technology that has made it easier to do so.
Yes, but it doesn't stop there. In practice, it makes it more difficult to do things which do not violate an author's rights, but which may make the author unhappy. An unhappy author who lacks rights to stop a particular bit of conduct can go screw, as far as I'm concerned; I don't like him being able to enforce his will beyond the degree to which the law has already granted.
DRM does not stop me reading a passage from a book and typing in a copy of it, nor creating an analogue copy of audio/video material.
Yet.
In the case of text, an exact duplication is possible, it simply requires more effort, just as it did in the past. With respect to audio/video material, analogue copies are still possible, again, just as they were in the past.
So you're saying that the public should not be able to reap the benefit of improved technology, but that authors should be able to reap the benefit of it for themselves, and also be able to stop its use by others? That's like saying that authors ought to be allowed to use DTP software, but that the ordinary public ought to be required to write longhand just to ward against the danger that they'll engage in piratical typesetting. Or, looking forward, if we invented the replicators from Star Trek, that we should not be allowed to use them to end world hunger because it would put the farmers and the chefs out of business.
New technologies can radically alter what the best copyright balance can be. Just because we put up with crappy technology in the past, and our abilities were limited as a result, doesn't mean that we should tolerate this in the future. I'm reminded of what J. Brandeis wrote in the Olmstead case (which dealt with wiretapping, b
Late Army Lt. Walter Haut had signed a sealed affidavit prior to his death last year asserting that he had witnessed the wreckage of an egg-shaped craft and its extraterrestrial crew while working at the Roswell Army Air Field.
Great, of all the aliens that could possibly land on Earth, we wound up with Orkans.
Hm. Well, in the US, our 10 and 25 coins used to be silver, with the former proportionately smaller than the latter. There used to be silver 5 coins, but they were impractically small. When the nickel replaced them, for some weird reason, the mint decided to make the coin 5g in mass (none of our other coins are metric), and made of less precious metal, and so we wound up with the current odd relative sizes.
What's the story with your coins?