So basically, if they just shift from LIVE to a TIME DELAYED model, they could go right on transmitting and not be considered "performing" under the current act.
As J. Scalia points out, the 'standard' the Court has chosen is unclear. Maybe that would be legal, maybe it wouldn't be. We'll never know until either 1) Congress amends the law to be clear about that; 2) Someone tries it and the Court reverses this opinion in a useful way; or 3) Someone tries it and the Court rules squarely on that in light of this opinion.
One thing is for sure: Only someone with lots of resources and a lot of daring will even attempt to find out by actually trying it.
Yes. Sorry about the fucked up apostrophes, quotation marks, etc. I just copied and pasted from the opinion without previewing the post, like everyone does. I can't believe it's 2014 and this sort of thing still isn't automatically handled properly.
This case boiled down to one major issue: Whether the allegedly infringing conduct in this case was engaged in by either Aereo, or by its users. Don't get hung up on the public performance v. private performance issue; it was really certain that if Aereo was liable, that the performance was public; if it were the users, it would be private.
J. Scalia's dissent does a good job of explaining the issue:
There are two types of liability for copyright infringement: direct and secondary. As its name suggests, the former applies when an actor personally engages in infringing conduct. Secondary liability, by contrast, is a means of holding defendants responsible for infringement by third parties, even when the defendants âoehave not themselves engaged in the infringing activity.â It applies when a defendant âoeintentionally induc[es] or encourag[es]â infringing acts by others or profits from such acts âoewhile declining to exer- cise a right to stop or limit [them].â
Most suits against equipment manufacturers and service providers involve secondary-liability claims. For example, when movie studios sued to block the sale of Sonyâ(TM)s Betamax videocassette recorder (VCR), they argued that Sony was liable because its customers were making unauthorized copies. Record labels and movie studios relied on a similar theory when they sued Grokster and StreamCast, two providers of peer-to-peer file-sharing software.
This suit, or rather the portion of it before us here, is fundamentally different. The Networks claim that Aereo directly infringes their public-performance right. Accordingly, the Networks must prove that Aereo âoeperform[s]â copyrighted works, Â106(4), when its subscribers log in, select a channel, and push the âoewatchâ button. That process undoubtedly results in a performance; the question is who does the performing. If Aereoâ(TM)s subscribers perform but Aereo does not, the claim necessarily fails. The Networksâ(TM) claim is governed by a simple but profoundly important rule: A defendant may be held directly liable only if it has engaged in volitional conduct that violates the Act....
A comparison between copy shops and video-on-demand services illustrates the point. A copy shop rents out photocopiers on a per-use basis. One customer might copy his 10-year-oldâ(TM)s drawingsâ"a perfectly lawful thing to doâ" while another might duplicate a famous artistâ(TM)s copyrighted photographsâ"a use clearly prohibited by Â106(1). Either way, the customer chooses the content and activates the copying function; the photocopier does nothing except in response to the customerâ(TM)s commands. Because the shop plays no role in selecting the content, it cannot be held directly liable when a customer makes an infringing copy.
Video-on-demand services, like photocopiers, respond automatically to user input, but they differ in one crucial respect: They choose the content. When a user signs in to Netflix, for example, âoethousands of . . . movies [and] TV episodesâ carefully curated by Netflix are âoeavailable to watch instantly.â That selection and arrangement by the service provider constitutes a volitional act directed to specific copyrighted works and thus serves as a basis for direct liability.
The distinction between direct and secondary liability would collapse if there were not a clear rule for determining whether the defendant committed the infringing act. The volitional-conduct requirement supplies that rule; its purpose is not to excuse defendants from accountability, but to channel the claims against them into the correct analytical track. Thus, in the example given above, the fact that the copy shop does not choose the content simply means that its culpability will be assessed using secondary-liability rules rather than direct-liability rules.
So which is Aereo: the copy shop or the video-on-demand service? In truth, i
I know some economists like Krugman disingenuously state that a government in control of its own currency printing presses can never default, but that's a lie. If these people bought the bonds in good faith and the government decides to pay them off with hyperinflated, worthless currency that they printed, then that's theft (at least morally speaking).
No, it's not theft. It's just the Super Chicken rule: they knew the job was dangerous when they took it.
Bond purchasers know that currencies may be debased, and that governments may even just default; happens all the time. But they gambled that the likelihood of getting a return on their investment was greater than of losing it, and that it was a better option than putting the money elsewhere. But there's no rock solid guarantee that absolutely cannot be broken.
Next you'll say that discharging debts in bankruptcy is immoral or something similarly stupid.
I can walk into a physical store 2 miles from my house, drop 5 bucks for a movie, and if I bring it back within 24 hrs, I get 4 bucks back. Why can't I just pay $1/movie to stream any video I want whenever I want?
Well if the movie studios had their way, you wouldn't be able to rent movies cheaply on disc either. They have no interest in customer satisfaction, convenience, or affordability.
You mean like the frosted glass commonly used for bathroom windows and shower doors? I see this as being a form of image processing that will rapidly be perfected.
No, publicity rights are a branch of state tort law. Copyrights are a sui generis branch of federal law.
And a copyright release is just a copyright license (or more rarely, an assignment), which means that it pertains to a particular creative work. A publicity release has to do with using someone's face, image, statements, etc. While you could conceivably have them both in the same form, it's rare that you'd need to or want to.
And I assure you, they are not related even the teeniest tiniest bit. Not in their policy goals, or how they originated, or which governments created them, or who gets them, or how long they last, or what they cover. There is no commonality.
Are you too lazy to google for the difference between copyrights and publicity rights? Perhaps this web page from the Library of Congress will help you out: http://memory.loc.gov/ammem/co...
A performer owns copyright of their performance, unless otherwise agreed.
No, not quite.
A mere performance, by itself, is not copyrightable. In order to be copyrightable, a performance must be fixed in a tangible medium. This always raises the question of whether the person doing the fixation is the actual author, or at least a joint author, with equal rights in the work. Basically it hinges on creativity. If the actor is in charge of their own costuming, lighting, cinematography, and direction, and everyone else is just following orders like a robot, with no creative input, and we set aside issues of works made for hire, then yes, the actor would be the sole author of the film. But if the actor isn't in charge of everything which, along with the performance, is being filmed, then they may be only one of many authors, and if it's the actor who is following orders like a robot, the actor may not have contributed any sort of authorship at all.
Burrow-Giles Lithographic Co. v. Sarony is what you'll want to take a look at.
More seriously, a child -- even a stupid child -- could tell that Snowden faces legal threats, among other threats. It's not foolish of him to consult with lawyers. Besides, you think there are no lawyers out to get him?
Hey, I'm totally happy with getting rid of as many jobs as possible through automation, so long as people still get paid enough to live comfortably. The leisure society is where it's at.
But ours are all stuck at the bottom of a big gravity well. Materials mined on the moon, or better yet, nearby asteroids, are not. They could be sent down to us as raw materials to be turned into finished goods here, but alternatively we could begin to industrialize space.
There are plenty of plans on the books for building solar power arrays that could send power down to us cleanly, for example. It's too expensive to build them with parts that come from the Earth, but it might be more practical with parts that didn't.
And while it would be good to get rid of mining operations on Earth, replacing it with space mining, the main advantage of mining in space is that you do not need to use a giant rocket to get that stuff into space; it's already up there, and can be used for industrial purposes in situ.
Who gives you the right to say what I should or should not do with my creations?
You didn't create the copyright. Everyone else gave it to you (via our servant, the government). We didn't do this out of the kindness of our hearts; we did it out of self interest. And being a deal made out of self interest, and with you having no real alternatives or bargaining power, it should favor us very strongly.
If you don't like it, don't create anything, and don't let the door hit your ass on the way out.
Of course there would be a canon. In fact, there might be several different ones. And fans could choose whichever they liked best. God knows this is already common with copyrighted materials.
Not to mention of course that even the Biblical Canon is not universally agreed upon, but somehow the world hasn't ended.
suppose its 1982, Return of the Jedi hasn't even been made yet.. is it really time to open the flood gates and let anyone anywhere make their own star wars direct to DVD sequels?
If you could make a DVD sequel to Star Wars in 1982 (remember, you can't use anything added in Empire!) then I'd say that you deserve to make it. Put those Laserdisc and Selectavision guys in their place!
Yes you could; the SPIDER-MAN trademark with regard to comic books and many other goods would become generic. I discussed this in another post in this thread.
It's copyrights that protect characters. Copyrights on the works that the characters appear in. Each trait of the character is protected in the work in which it first appears. So Spider-Man's basic costume, web swinging, origin, etc. all comes from Amazing Fantasy #15. But Peter Parker's sideline of bringing pictures of Spider-Man to J. Jonah Jameson doesn't show up until The Amazing Spider-Man #2, so you'd have to wait for that one to also hit the public domain to introduce that trait.
And anyone complaining that software shouldn't be patented is missing the point completely - because the line is extremely fine. If I make a machine using gears and other bits (or electronic logic circuits and opamps and such) and it's novel, it's obvious it can be patented. But if I decide to do all the processing in software while using a generic hardware interfaces, then the entire system can't be patented?
Well, the reason why I'm opposed to software patents is because I don't think they're necessary. There are such significant incentives to invent and bring to market inventions in the field of software that a patent monopoly really has no meaningful incentivizing effect. And software does a pretty good job of disclosing itself; it's very open to being reverse engineered, so disclosure isn't a good reason to grant software patents either.
We could probably stop granting software patents and see the pace of invention in that field increase. Sounds like a good reason to me. If it slows down, we could revisit the matter. Same thing with business methods.
With 20 year expirations on copyright, Nintendo loses control over Pokemon in 2 years. And any jackass could start printing Pokemon cards, making Pokemon movies, releasing Pokemon games and books.
And this is bad, why? (Other than that the world probably has more pokemon now than it ever needed) Besides, there are already loads of Poke-knockoffs. Is it so terrible that they exist?
Meanwhile copyright on Magic the Gathering would already be up. Not the new cards of course, but some chinese outfit could now legally distribute Black Lotus in original Alpha style. That somehow seems wrong to me. And the "Magic the Gathering" movies would be heading straight to video near you. Seems odd that WotC (Hasbro) wouldn't have any control over it.
Well, this is a somewhat more special case, actually.
Copyright doesn't protect processes, procedures, systems, or methods of operation. Such as the rules for a card game. (The classic example is a method of double entry bookkeeping, if you're curious)
Rules can be patented, OTOH, if they meet the usual rules for utility patents, such as novelty and nonobviousness. The 'tap' rule in Magic is patented. Once that expires, next year, IIRC, anyone can make and sell Magic cards. They'll have to watch the trademark -- so they might be sold as, oh, let's say MERRORMY brand playing cards, with a note that says they're compatible with Magic the Gathering, but not authorized by Hasbro. With new art and wording, but identical point scores and... I don't know how Magic actually works... suits?
Hasbro might sponsor official tournaments which only allow for official Hasbro cards to be used, but that's like having Goodyear sponsor a car race where only Goodyear tires can be used. It doesn't stop other people from doing their own thing.
It doesn't have to be a shady Chinese outfit. You can do it. I might, if I didn't think that Magic was cardboard crack, and best avoided.
Trademark law would come into play since everybody is trademarking everything related to IP these days.. but if we're going to do copyright reform to limit terms to 20 years I'm assuming we aren't going to let Warner Brothers own the trademark on the name "Ron Weasley" in perpetuity either...
See my other post in this thread re: trademarks not having great odds of survival when applicable copyrights expire.
Its not JUST about the money. Maybe the author doesn't want some shitty Hollywood hack job done to his book directed by McG starring Justin Bieber. Or a no budget straight to DVD release put out by one of those crappy TV movie-mills. I'm willing to give the author the right not to see that done to his work while he's alive, if that's what he wants.
Its not JUST about the money. Maybe the author doesn't want some shitty Hollywood hack job done to his book directed by McG starring Justin Bieber. Or a no budget straight to DVD release put out by one of those crappy TV movie-mills. I'm willing to give the author the right not to see that done to his work while he's alive, if that's what he wants.
Why? I'm willing to give the author just about any sort of thing if it ultimately provides a greater benefit for the public than it causes harm to the public. But otherwise, I couldn't give a rat's ass what the author wants.
After all, what I want -- what we all want -- are works. We want the author's output. If it just magically appeared, or was retrieved out of Borges' library, we wouldn't even need the authors to begin with.
Authors are like dairy cows. They're a necessary evil in order to get the milk, and should be treated however we need to treat them to get the most milk at the least cost. But we don't otherwise care what the cow wants, and we'd love to cut the cow out of the equation altogether somehow.
I believe this also answers your question about fans. Of course the fans should be in charge. They outnumber the authors. But they're not well organized, and can be a bit romantic, so we end up with authors exploiting fans when it ought to be the other way 'round.
Slashdot Mirror
So basically, if they just shift from LIVE to a TIME DELAYED model, they could go right on transmitting and not be considered "performing" under the current act.
As J. Scalia points out, the 'standard' the Court has chosen is unclear. Maybe that would be legal, maybe it wouldn't be. We'll never know until either 1) Congress amends the law to be clear about that; 2) Someone tries it and the Court reverses this opinion in a useful way; or 3) Someone tries it and the Court rules squarely on that in light of this opinion.
One thing is for sure: Only someone with lots of resources and a lot of daring will even attempt to find out by actually trying it.
Yes. Sorry about the fucked up apostrophes, quotation marks, etc. I just copied and pasted from the opinion without previewing the post, like everyone does. I can't believe it's 2014 and this sort of thing still isn't automatically handled properly.
This case boiled down to one major issue: Whether the allegedly infringing conduct in this case was engaged in by either Aereo, or by its users. Don't get hung up on the public performance v. private performance issue; it was really certain that if Aereo was liable, that the performance was public; if it were the users, it would be private.
J. Scalia's dissent does a good job of explaining the issue:
I know some economists like Krugman disingenuously state that a government in control of its own currency printing presses can never default, but that's a lie. If these people bought the bonds in good faith and the government decides to pay them off with hyperinflated, worthless currency that they printed, then that's theft (at least morally speaking).
No, it's not theft. It's just the Super Chicken rule: they knew the job was dangerous when they took it.
Bond purchasers know that currencies may be debased, and that governments may even just default; happens all the time. But they gambled that the likelihood of getting a return on their investment was greater than of losing it, and that it was a better option than putting the money elsewhere. But there's no rock solid guarantee that absolutely cannot be broken.
Next you'll say that discharging debts in bankruptcy is immoral or something similarly stupid.
I can walk into a physical store 2 miles from my house, drop 5 bucks for a movie, and if I bring it back within 24 hrs, I get 4 bucks back. /movie to stream any video I want whenever I want?
Why can't I just pay $1
Well if the movie studios had their way, you wouldn't be able to rent movies cheaply on disc either. They have no interest in customer satisfaction, convenience, or affordability.
You mean like the frosted glass commonly used for bathroom windows and shower doors? I see this as being a form of image processing that will rapidly be perfected.
Sigh.
No, publicity rights are a branch of state tort law. Copyrights are a sui generis branch of federal law.
And a copyright release is just a copyright license (or more rarely, an assignment), which means that it pertains to a particular creative work. A publicity release has to do with using someone's face, image, statements, etc. While you could conceivably have them both in the same form, it's rare that you'd need to or want to.
And I assure you, they are not related even the teeniest tiniest bit. Not in their policy goals, or how they originated, or which governments created them, or who gets them, or how long they last, or what they cover. There is no commonality.
Are you too lazy to google for the difference between copyrights and publicity rights? Perhaps this web page from the Library of Congress will help you out: http://memory.loc.gov/ammem/co...
Copyright law is utterly unrelated to publicity rights. You're just stringing words together.
A performer owns copyright of their performance, unless otherwise agreed.
No, not quite.
A mere performance, by itself, is not copyrightable. In order to be copyrightable, a performance must be fixed in a tangible medium. This always raises the question of whether the person doing the fixation is the actual author, or at least a joint author, with equal rights in the work. Basically it hinges on creativity. If the actor is in charge of their own costuming, lighting, cinematography, and direction, and everyone else is just following orders like a robot, with no creative input, and we set aside issues of works made for hire, then yes, the actor would be the sole author of the film. But if the actor isn't in charge of everything which, along with the performance, is being filmed, then they may be only one of many authors, and if it's the actor who is following orders like a robot, the actor may not have contributed any sort of authorship at all.
Burrow-Giles Lithographic Co. v. Sarony is what you'll want to take a look at.
Second is the long-standing interpretation of copyright law saying that people own copyright on their own appearance.
Got some cases you can cite for that?
Typically, when making a movie or taking pictures of a person, you need the actors' or models' permission*.
And publicity and privacy rights, which are what you get releases for, are not copyrights. They are not even vaguely related.
I never even said a word about the lawyers making money. Perhaps you meant to reply to someone else?
Everyone needs many lawyers at all stages.
More seriously, a child -- even a stupid child -- could tell that Snowden faces legal threats, among other threats. It's not foolish of him to consult with lawyers. Besides, you think there are no lawyers out to get him?
I mean, we can't all have 6-digit Slashdot IDs
Who would want a six digit Slashdot ID? How dreadful!
I believe that the episode you're thinking of was Time Flight. They put the TARDIS aboard a Concorde and flew 140 million years into the past.
Plus don't forget that the domestic telephone network exists nationwide. Even if airlines were magically exempt, telephones still could be regulated.
Hey, I'm totally happy with getting rid of as many jobs as possible through automation, so long as people still get paid enough to live comfortably. The leisure society is where it's at.
But ours are all stuck at the bottom of a big gravity well. Materials mined on the moon, or better yet, nearby asteroids, are not. They could be sent down to us as raw materials to be turned into finished goods here, but alternatively we could begin to industrialize space.
There are plenty of plans on the books for building solar power arrays that could send power down to us cleanly, for example. It's too expensive to build them with parts that come from the Earth, but it might be more practical with parts that didn't.
It has plenty of oxygen and aluminum, which would be useful. Near Earth asteroids are probably a better bet, however.
How could that have possibly happened, given that in 1994, a runaway planet hurtled between the Earth and the Moon, breaking the moon into two big chunks, unleashing cosmic destruction, and casting man's civilization into ruin.
And while it would be good to get rid of mining operations on Earth, replacing it with space mining, the main advantage of mining in space is that you do not need to use a giant rocket to get that stuff into space; it's already up there, and can be used for industrial purposes in situ.
Trademarks are fine, of course.
Who gives you the right to say what I should or should not do with my creations?
You didn't create the copyright. Everyone else gave it to you (via our servant, the government). We didn't do this out of the kindness of our hearts; we did it out of self interest. And being a deal made out of self interest, and with you having no real alternatives or bargaining power, it should favor us very strongly.
If you don't like it, don't create anything, and don't let the door hit your ass on the way out.
No consistency, no canon, nothing.
Of course there would be a canon. In fact, there might be several different ones. And fans could choose whichever they liked best. God knows this is already common with copyrighted materials.
Not to mention of course that even the Biblical Canon is not universally agreed upon, but somehow the world hasn't ended.
suppose its 1982, Return of the Jedi hasn't even been made yet.. is it really time to open the flood gates and let anyone anywhere make their own star wars direct to DVD sequels?
If you could make a DVD sequel to Star Wars in 1982 (remember, you can't use anything added in Empire!) then I'd say that you deserve to make it. Put those Laserdisc and Selectavision guys in their place!
Yes you could; the SPIDER-MAN trademark with regard to comic books and many other goods would become generic. I discussed this in another post in this thread.
It's copyrights that protect characters. Copyrights on the works that the characters appear in. Each trait of the character is protected in the work in which it first appears. So Spider-Man's basic costume, web swinging, origin, etc. all comes from Amazing Fantasy #15. But Peter Parker's sideline of bringing pictures of Spider-Man to J. Jonah Jameson doesn't show up until The Amazing Spider-Man #2, so you'd have to wait for that one to also hit the public domain to introduce that trait.
And anyone complaining that software shouldn't be patented is missing the point completely - because the line is extremely fine. If I make a machine using gears and other bits (or electronic logic circuits and opamps and such) and it's novel, it's obvious it can be patented. But if I decide to do all the processing in software while using a generic hardware interfaces, then the entire system can't be patented?
Well, the reason why I'm opposed to software patents is because I don't think they're necessary. There are such significant incentives to invent and bring to market inventions in the field of software that a patent monopoly really has no meaningful incentivizing effect. And software does a pretty good job of disclosing itself; it's very open to being reverse engineered, so disclosure isn't a good reason to grant software patents either.
We could probably stop granting software patents and see the pace of invention in that field increase. Sounds like a good reason to me. If it slows down, we could revisit the matter. Same thing with business methods.
With 20 year expirations on copyright, Nintendo loses control over Pokemon in 2 years. And any jackass could start printing Pokemon cards, making Pokemon movies, releasing Pokemon games and books.
And this is bad, why? (Other than that the world probably has more pokemon now than it ever needed) Besides, there are already loads of Poke-knockoffs. Is it so terrible that they exist?
Meanwhile copyright on Magic the Gathering would already be up. Not the new cards of course, but some chinese outfit could now legally distribute Black Lotus in original Alpha style. That somehow seems wrong to me. And the "Magic the Gathering" movies would be heading straight to video near you. Seems odd that WotC (Hasbro) wouldn't have any control over it.
Well, this is a somewhat more special case, actually.
Copyright doesn't protect processes, procedures, systems, or methods of operation. Such as the rules for a card game. (The classic example is a method of double entry bookkeeping, if you're curious)
Rules can be patented, OTOH, if they meet the usual rules for utility patents, such as novelty and nonobviousness. The 'tap' rule in Magic is patented. Once that expires, next year, IIRC, anyone can make and sell Magic cards. They'll have to watch the trademark -- so they might be sold as, oh, let's say MERRORMY brand playing cards, with a note that says they're compatible with Magic the Gathering, but not authorized by Hasbro. With new art and wording, but identical point scores and... I don't know how Magic actually works... suits?
Hasbro might sponsor official tournaments which only allow for official Hasbro cards to be used, but that's like having Goodyear sponsor a car race where only Goodyear tires can be used. It doesn't stop other people from doing their own thing.
It doesn't have to be a shady Chinese outfit. You can do it. I might, if I didn't think that Magic was cardboard crack, and best avoided.
Trademark law would come into play since everybody is trademarking everything related to IP these days.. but if we're going to do copyright reform to limit terms to 20 years I'm assuming we aren't going to let Warner Brothers own the trademark on the name "Ron Weasley" in perpetuity either...
See my other post in this thread re: trademarks not having great odds of survival when applicable copyrights expire.
Its not JUST about the money. Maybe the author doesn't want some shitty Hollywood hack job done to his book directed by McG starring Justin Bieber. Or a no budget straight to DVD release put out by one of those crappy TV movie-mills. I'm willing to give the author the right not to see that done to his work while he's alive, if that's what he wants.
Its not JUST about the money. Maybe the author doesn't want some shitty Hollywood hack job done to his book directed by McG starring Justin Bieber. Or a no budget straight to DVD release put out by one of those crappy TV movie-mills. I'm willing to give the author the right not to see that done to his work while he's alive, if that's what he wants.
Why? I'm willing to give the author just about any sort of thing if it ultimately provides a greater benefit for the public than it causes harm to the public. But otherwise, I couldn't give a rat's ass what the author wants.
After all, what I want -- what we all want -- are works. We want the author's output. If it just magically appeared, or was retrieved out of Borges' library, we wouldn't even need the authors to begin with.
Authors are like dairy cows. They're a necessary evil in order to get the milk, and should be treated however we need to treat them to get the most milk at the least cost. But we don't otherwise care what the cow wants, and we'd love to cut the cow out of the equation altogether somehow.
I believe this also answers your question about fans. Of course the fans should be in charge. They outnumber the authors. But they're not well organized, and can be a bit romantic, so we end up with authors exploiting fans when it ought to be the other way 'round.