First let me state that the Constitution says nothing about eminent domain.
Of course it does. The Fifth Amendment says, among other things, "nor shall private property be taken for public use, without just compensation." If the federal government didn't have an eminent domain power, there would be no need to restrict the use of that power; thus, it must have that power.
the property owner "must be justly compensated"
Yes, but the question is, for what? The cost of the property, or that and other associated costs, and if so, which? Like I said before, I don't know whether the moving costs, for example, would also have to be paid. Personally, I'd think not, but this isn't an area of law I ordinarily deal with, and so I don't know the answer. (Which, btw, would tend to vary from state to state anyway, since states also have this power, and have their own restrictions on it as well as the restriction from the Fifth Amendment) Maybe those costs would have to be paid. If I particularly cared, I could check, but I'm content enough to not worry about it for the moment. This is particularly so given the original direction of the thread.
An interesting piece of fiction surrounding this issue (in an Australian setting) is the movie The Castle. I highly recommend it.
If a speaker says, "In my opinion John Jones is a liar," he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts [p19] upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, "In my opinion Jones is a liar," can cause as much damage to reputation as the statement, "Jones is a liar."
Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990).
I will admit, however, that I ought to have said before that the issue is whether a false opinion is defamatory. For an honest-to-god idea, falsehood won't be relevant. For a statement of fact or an implication of fact which is merely pretending to be an opinion, often starting out with the words "In my opinion," falsehood is very much on the table. In my defense, it's late and I haven't had to deal with defamation law for quite some time. Still, good catch by the other poster.
You're right about the ninth amendment, I meant the tenth.
Okay, this is the amendment that reads "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people."
So, if the power to spend federal monies was not delegated to the United States, then you'd have a point. Let's see what Article I has to say:
"The Congress shall have power... to pay the debts and provide for the common defense and general welfare of the United States."
"No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.
So it looks as though Congress has the power to spend federal money. They have to do so pursuant to the laws that they enact, and they have to account for it, and it has to basically be for national purposes. But they can spend it. That means it was delegated to the United States, and thus does not fall under the ambit of rights reserved to the states under the Tenth Amendment.
You want to try again?
About fair market value, the point is that when the government condemns a house, it is no longer worth much.
That's not how the value is estimated. They look at what the value would be if the owner was going to sell it at the time. Honestly, this is how appraisal of anything works. The only way you know what your car is worth without actually selling it -- which is an important questions for insuring it, for instance -- is by comparing it with other cars that are being sold. This is not rocket science.
Plus costs of moving, and generally being uprooted.
I'd want to check, but I don't see why this would be relevant. Those costs are not part of the costs of the actual property. If you live on Monster Island (don't worry, it's just a name), and it would cost you $10,000 to move to someplace safe, like Tokyo, and your house is only worth $5,000, then you're screwed. You can't afford to move. But it doesn't mean that your house is suddenly worth $15,000. Indeed, the problem is that it's not!
Also it's worth pointing out that a great number of takings are basically just taking your road frontage so that a road can be widened. You lose some of the yard, if it's a house, or parking lot, if it's a business, or nothing in particular if it's farmland, or a vacant lot or something, but they don't often take the whole parcel. Still, not every square foot is worth the same as the rest; if your lot is half swamp and half gold mine, and you only lose half, which half becomes pretty important in terms of valuation. Not everything is urban renewal projects or Central Arteries.
See: Fair compensation. It is fair market value, but there is no market value when the government condemns something.
Which is why the government will make an offer based on their appraisal of the value. And if you don't like it, you can negotiate for a better price, and ultimately sue for a better price. Then each side brings in appraisers and a jury decides based upon the evidence presented to them.
This isn't difficult. Courts have to make decisions about how much things cost all the time.
The Ninth amendment clearly establishes states rights.
No, the Ninth merely says that the enumeration of rights elsewhere in the Constitution cannot be read to mean that they are the only rights. It doesn't establish any rights at all, in fact. Nor does it say how many rights there are, or what they are.
Also, you pretty obviously haven't read it, because it doesn't mention the states at all. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Do you see the word 'states' in there? I don't.
Meh. The job of a defense attorney is to get his client off the hook. Whether the client actually did it or not isn't relevant to him. That is only relevant to the other side. The last thing we need is for defense attorneys to end up working against their own clients merely because they are convinced by the prosecutor or plaintiff. If that happened, the defendant wouldn't get a fair trial. Our system is adversarial: both sides zealously fight one another. You don't want that to stop working, I assure you.
Actually, you shouldn't rely too much on the idea that couching a statement as an opinion will protect you. The states vary on this, IIRC, but it has been rejected as a matter of First Amendment law. The real issue is whether it is defamatory and there's nothing about an opinion that prevents this.
I can think of a few reasons why supreme court judges would be legitimately rated low.
I suspect that you mean to say 'justices,' not 'judges.'
commerce clause inversion
Which would be, what? The negative commerce clause?
allowing states to take people's property
Why? States have always had that power. Indeed, the federal Constitution only requires that governments pay fair compensation to the owner when they seize property under the eminent domain power. It not only doesn't prohibit it, but by making it conditional, it supports the idea of eminent domain. Which is not a bad idea, actually; that is how governments builds roads, among other things.
Allowing congress to blackmail the states by withholding highway (and other) funds
So you're saying that the Constitution imposes limits on the federal government spending its money which would prohibit this? Please feel free to point them out.
cowardly and un-statesmanlike refusal to hear critical cases of government malfeasance (like Robert Newdow's)
Pft. Newdow's case was hardly 'critical,' though I also would've liked to have it heard. But the Constitution does put significant procedural limits on the federal courts, and Newdow really did have a problem with standing. The Supreme Court once told George Washington to piss off (more politely than that) under similar circumstances, once. If you're going to complain that they are too loose with the Constitution, you need to realize that it is a two-edged argument.
The church is private property. That doesn't necessarily mean that every mention or depiction of the church follows it.
And also, no, you don't need permission from anyone to use a model of the White House. The best imaginable argument against it would be security concerns (which wouldn't apply for the church), but that argument falls flat: the interior organization of the White House isn't a secret. Hell, the thing's been there for over two hundred years. I suppose that you could argue that it is in bad taste, but that's not a good enough reason to force people to stop. (And besides, what if it was the FPS version of Bad Dudes?)
That is by far the funniest thing I have read all week. And I've been going through documents, so I see a lot of funny things (and a million boring things).
All the states have enacted the UCC, and they did so decades ago. It actually is pretty useful and does a lot of things. It's a good law on the whole, and the bad bits, like UCITA have been flops. Just fix this particular issue rather than throwing the baby out with the bathwater.
And if you can show the court that this is the case, then that strengthens your argument as to the EULA not being enforceable. Or at the very least, it helps to convince the other side to let you return it for a refund after all.
However, there is a dispute over the particular reading of the UCC that is the key to whether EULAs are enforceable or not. See Klocek v. Gateway, 104 F. Supp. 2d, 1332 (D. Kan. 2000) for an anti-EULA case. There are some other fun EULA cases too, such as Spech v. Netscape, where some users were found to not be bound by the EULA because they hadn't read it, weren't sufficiently made aware of it, and didn't have to read it as a step to make the software work in its ordinary functioning.
Re:RTFM = Best Evar.. BASIC, etc, etc
on
The Apple II At 30
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Well, the Red book is okay, but I think that the later generation of manuals was better.
but the fact of the matter is that society has deemed breaking copyright is wrong.
Really? I would imagine that the utilitarian nature of copyright and the commonality of infringement indicate otherwise. But what I'm really interested in is this:
(I'm thinking life of author, or 30 years whichever is less, one time renewable),
How the hell would the renewal term for that work?
Actually the courts have held that even the particular expression of a recipe is not copyrightable. They said that the format of a recipe is so well-define, and so brief, that there is absolutely no creativity in the layout or formatting, the only creativity is in the recipe itself.
No, that just runs into particular expressions. I agree that your average expression of a recipe is uncopyrightable because it is a simple statement of an uncopyrightable method, with nothing copyrightable added. This is particularly so given the merger doctrine. But it doesn't mean that all expressions of recipes are uncopyrightable.
For example, let's say that we made a video recording with no audio track. A chef could be filmed gathering together various ingredients, measuring out the appropriate portions, mixing them together, cooking it for a certain period of time, etc. The entire video would compromise the expression of the recipe. And given the general requirements for a copyrightable picture or video, it would be easy to copyright the recording. However, the underlying recipe -- the actual list of ingredients and the steps performed to produce the finished food product -- would not be protectable because it is uncopyrightable subject matter. Which means that while someone could lawfully write down what ingredients there were and what you do with them, they could not just make a copy of the entire video. The video is the expression, the recipe it illustrates is the idea.
a list of ingredients, which isn't copyrightable in any form
What if it was a still life oil painting? (Assume you're making fruit salad)
As for patents, patents have to be a useful progression of science, and the courts have held that 'a method to make a certain food' is not 'original'.
Actually patents have to promote the progress of the arts. Copyrights deal with science. This is why prior art is such a big deal in patent-land. Further, patentable inventions must be novel and nonobvious. Originality is not a requirement for patents, it's a requirement for copyrights (which don't care about either novelty or nonobviousness). Anyway, you're wrong. Provided that your recipe meets the various requirements for patentability, it is patentable. And it does happen -- there have been patented food items, because there are plenty of things that haven't been invented yet. It's just uncommon that anyone even bothers.
And copyrights prevent copying 'works of the mind', but allow using them. (Just ask the people who can't copyright recipes about that.)
Well... it's just that a recipe is subject to the idea/expression dichotomy, just like everything else in the copyright world. The expression of a recipe may be copyrightable, but the method it describes is not, and even if a particular expression is copyrightable, that won't preclude other people from expressing the same recipe. The method may, OTOH, be patentable, as patents are perfectly capable of applying to methods, to the finished product, etc. provided that they meet the requirements for patentability (e.g. novelty, nonobviousness, the time bar).
But this is a minor nit; you've generally got the right idea about all this. Kudos.
You could use your brain and come up with something (a device, a piece of art/book/whatever) and could justifiably hope to make money off it.
You could do that before. Certainly plenty of people have created works and invented inventions and made money from them in some fashion or another. Of course, there have also been those who did those things without the incentive of a set of exclusive rights which may be exploited for monetary gain; let's not forget about them.
More importantly, however, you've only touched on copyrights and patents there. "Intellectual property" encompasses other areas as well. Trademarks, for example, are neither creative works nor inventions, and have been around and to varying degrees been protected for a lot longer than than, say, the Magna Carta has been around. The same goes for trade secrets.
But they all protect the same thing, works of the mind. And that's where the term "intellectual property rights" come from.
And of course, trademarks are not works of the mind. Neither are publicity rights. They protect reputation. A merchant or a celebrity cannot create their reputation with their mind, they have to earn a reputation, which is held in the minds of everyone else around them. And while they may have the right to protect their reputation from encroachment, it isn't the creation of intellect, not even a little bit. It's a matter of how they were perceived.
sometimes I also want to talk about rights inherent in works of the mind in general.
Then do so, but as I've shown, using the term "intellectual property" simply doesn't accomplish that. As I said before, it tries to encompass too many unrelated things.
A drug is covered by patents. The appearance of the drug is protected by a design trademark. The drug's name and its manufacturer's name are protected by trademark law. Instructions, artwork, etc accompanying the packet it comes in may be copyrighted. To sum up, that box you buy at the pharmacy is protected by a whole class of Intellectual Property Rights.
But if you want to talk about the rights regarding the box from the druggist, why are you limiting yourself? There are other rights too, such as the personal property rights as to the tangible box and its contents. You failed to mention that. And why are you using a term which is inclusive of the right of publicity, which is wholly inapplicable to a box? You're using a term which is both overinclusive and underinclusive. That's not a good term for those reasons alone.
And of course, that it tries to invoke the idea of real and personal property, implies that it is a deliberately misleading term. Copyrights, patents, trademarks, trade secrets, publicity rights, etc. are not in any way derived from or related to property law of any kind.
So change the patenting process -- something lots of people are working on.
As it happens, I do advocate for reforming these laws. But this is not what we were discussing. We were discussing the term "intellectual property" and how it is an attempt to defeat attempts at reform by reframing the debate. Don't change the subject.
But don't throw the baby out with the bathwater and childishly cry out against IP.
Idiot. I'm complaining about the _words_, and that they are an empty suit, signifying nothing. I'm not complaining -- in this thread, anyway -- about the actual underlying legal regimes, each of which stands alone, and has its own name.
People use the term "Intellectual Property" s because they are collectively a class of property rights of immaterial objects.
Except that that's untrue. They aren't really property rights, and they certainly cannot reasonably be thought of in a collective fashion. Copyrights and patents are mildly related to one another only in that they have similar ends and means, but this is only so at the very highest, abstract levels. Trademarks are wholly unrelated to either. Trade secrets too are unrelated. Publicity rights are slightly similar to trademarks, but generally are not.
You agree that people who aren't really well-versed in the subject get confused about these. Well I can tell you that people in the know generally don't use the term in discussions with one another. There's almost never any cause to, because it's quite rare to be talking much about them at once. Generally when you are talking about copyrights, you say copyrights, when talking about patents, you say patents, and so on. So if it's not a useful term for laypeople because it's confusing, and it's not a useful term for experts, because it's horribly vague and imprecise, then who is it useful for?
Other than being useful for people who want to promote an agenda by means of confusing and misleading people, I can't imagine.
It's interesting how fair use law says you're allowed to make one copy for "backup" purposes.. then doesn't really define what that term means. In IT, a backup kept on the same site as the original is hardly a backup at all.
In the US, at least, fair use says nothing of the kind. Fair use is an exception for anything that is fair. Sometimes backups are fair, sometimes they aren't. It depends on the specific circumstances involved.
If there is prima facie infringement, it's not fair use. You're just not getting this.
I think that the problem you are having is that you are likely reading the statute and forgetting that it is the courts who interpret it authoritatively. Agree or disagree with them, they are a legitimate part of the process, just like Congress, and you're stuck with them anyway.
In court, if a plaintiff wants to make a prima facie case for infringement, he must show that there is a valid copyright, that he can enforce that copyright, and that there was infringement (often called 'copying' even in cases not actually involving the reproduction right). A defendant can rebut that case by showing, e.g. that there wasn't a valid copyright. Only if the plaintiff can successfully make that prima facie case, will the defendant have the need to, and in fact the opportunity to, argue fair use. If the plaintiff cannot prove the prima facie elements, fair use never even enters the courtroom.
Yes, the statute says that fair use is not infringing. But the courts uniformly interpret this in such a way that there has to be at least an arguable infringement before fair use needs to be considered. Mainly, it is because it is easier to do it this way: if the plaintiff cannot prove that there was any infringement even if fair use was not considered, the case can be dispensed with right there! Courts reduce their workload by only considering arguments and counterarguments on an as-needed basis. Indeed, it's quite common to see courts completely ignore important issues in a case by finding a simpler way of dispensing with it. See e.g. the famous Newdow case (the 1st Amendment case about the Pledge of Allegiance) where the Supreme Court found that there was no standing, and thus didn't have to make any substantive decision whatsoever.
Fair use is simply not part of the plaintiff's case-in-chief. It's not even properly a rebuttal. It's a defense. It's the defendant's burden, and it comes in later, rather than sooner.
If they're sued for copyright infringement and believe they are engaged in a fair use exemption, they will be able to explain to their attorney what they were doing and why it should be allowed.
I think that you expect too much out of parties.
If you're trying to push the envelope beyond what's already established, then you're not arguing for 'fair use' at all. You're arguing that fair use should be extended to cover additional actions because they constitute a noninfringing use with no commercial damage as a result.
Any use can be a fair use. It has no boundaries, other than that it must have otherwise been infringing, because an otherwise non-infringing use needn't be fair at all. It's entirely case-by-case, and so there's no point in thinking of an envelope. Indeed, the whole reason why fair use is utterly nebulous is so that it can be extended as needed. Time shifting can be a fair use, but it was novel at the time, and it certainly only wins on the fourth factor.
As for what works and what doesn't, fair use is always tricky. Even if you think you're in well-established territory, e.g. news reporting or parody, maybe you're not, e.g. Harper & Row v. Nation, or Disney v. Air Pirates. And sometimes when you think that you're not, you are, e.g. Sony v. Universal, or Campbell v. Acuff-Rose.
The other exceptions to copyright are much firmer ground, but also a lot more limited.
Precisely. Of course, I think it's a good idea on its own merits and I would hope that other governments would consider it as well, but whether or not they adopted such a thing would be up to them.
No. New Jersey would need to have some sort of law or policy by which it doesn't have copyrights, because the federal government is certainly going to grant one to that state just as it would for any other author.
I always thought that NJ was owned by an organized crime syndicate, not it's citizens.
No, think about it. No rational person would ever want to own New Jersey. Really, the only people who would be crazy enough to want to own NJ are the same people who are crazy enough to live there!
Sure, it can be done. There's no reason why the government cannot condition acceptance of public funds on having any work that is wholly or partially funded with that money be in the public domain. It is of course up to the author as to whether or not to accept the money and the strings that accompany it. If the copyright is terribly important to them, they'll secure funding elsewhere.
such as whether police filming police actions (ie. producing wholly state-funded content) is privately-owned or public-domain material. That could touch on evidence laws too, perhaps?
Films made by police in the course of their official duties would fall under the government. The individual policeman is doing it as a policeman, not as a private person. As far as production of copies in evidence, courts routinely ignore copyright law for these sorts of things. The needs of the overall judicial system come first, and even if you wanted to argue it (which would be unbelievably foolish; litigants are guaranteed discovery and this would be guaranteed to piss off a judge) I cannot think of many stronger fair use arguments.
(I have heard of at least one lawyer who tried to interfere significantly in discovery with copyright arguments. I only heard of it long after the fact, but had it happened to me, I'd've pressed for sanctions from the court and the bar in a heartbeat.)
you have to proceed with the take down no matter if it is copyright material or not
No. First, the 17 USC 512 take-down system only covers copyrighted material, to the extent that it is copyrighted. So if you post public domain material, for example, then you can safely ignore a take-down notice. Second, ISPs aren't obligated to comply with the notice, although doing so will help to protect them in the event that the material really was put up in an infringing manner. Third, the person who put the material up can file a counter-take-down notice with the ISP, which requires them to put it back up again, or else lose protections against that person. Of course, this should only be done if that person believes that they acted lawfully and is willing to see things escalate.
Of course, if there's a court order, as opposed to a mere takedown notice or other cease and desist letter from an attorney, then the ISP had better comply with it. But that doesn't seem to have happened here, nor does it happen in most cases.
I was addressing the reason presented. There are in fact several independent reasons that ought to prevent this from being copyrightable: it's not creative, it's not meant to be a creative work, it's done by what is, ultimately, a government body. And there are reasons why even if it were, it shouldn't be relevant here, the main one being that it's become news and thus publicizing it is likely fair use.
Don't confuse that there is one reason against it with the idea that that would be the only reason.
Slashdot Mirror
First let me state that the Constitution says nothing about eminent domain.
Of course it does. The Fifth Amendment says, among other things, "nor shall private property be taken for public use, without just compensation." If the federal government didn't have an eminent domain power, there would be no need to restrict the use of that power; thus, it must have that power.
the property owner "must be justly compensated"
Yes, but the question is, for what? The cost of the property, or that and other associated costs, and if so, which? Like I said before, I don't know whether the moving costs, for example, would also have to be paid. Personally, I'd think not, but this isn't an area of law I ordinarily deal with, and so I don't know the answer. (Which, btw, would tend to vary from state to state anyway, since states also have this power, and have their own restrictions on it as well as the restriction from the Fifth Amendment) Maybe those costs would have to be paid. If I particularly cared, I could check, but I'm content enough to not worry about it for the moment. This is particularly so given the original direction of the thread.
An interesting piece of fiction surrounding this issue (in an Australian setting) is the movie The Castle. I highly recommend it.
I'll check it out.
I will admit, however, that I ought to have said before that the issue is whether a false opinion is defamatory. For an honest-to-god idea, falsehood won't be relevant. For a statement of fact or an implication of fact which is merely pretending to be an opinion, often starting out with the words "In my opinion," falsehood is very much on the table. In my defense, it's late and I haven't had to deal with defamation law for quite some time. Still, good catch by the other poster.
You're right about the ninth amendment, I meant the tenth.
... to pay the debts and provide for the common defense and general welfare of the United States."
Okay, this is the amendment that reads "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people."
So, if the power to spend federal monies was not delegated to the United States, then you'd have a point. Let's see what Article I has to say:
"The Congress shall have power
"No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.
So it looks as though Congress has the power to spend federal money. They have to do so pursuant to the laws that they enact, and they have to account for it, and it has to basically be for national purposes. But they can spend it. That means it was delegated to the United States, and thus does not fall under the ambit of rights reserved to the states under the Tenth Amendment.
You want to try again?
About fair market value, the point is that when the government condemns a house, it is no longer worth much.
That's not how the value is estimated. They look at what the value would be if the owner was going to sell it at the time. Honestly, this is how appraisal of anything works. The only way you know what your car is worth without actually selling it -- which is an important questions for insuring it, for instance -- is by comparing it with other cars that are being sold. This is not rocket science.
Plus costs of moving, and generally being uprooted.
I'd want to check, but I don't see why this would be relevant. Those costs are not part of the costs of the actual property. If you live on Monster Island (don't worry, it's just a name), and it would cost you $10,000 to move to someplace safe, like Tokyo, and your house is only worth $5,000, then you're screwed. You can't afford to move. But it doesn't mean that your house is suddenly worth $15,000. Indeed, the problem is that it's not!
Also it's worth pointing out that a great number of takings are basically just taking your road frontage so that a road can be widened. You lose some of the yard, if it's a house, or parking lot, if it's a business, or nothing in particular if it's farmland, or a vacant lot or something, but they don't often take the whole parcel. Still, not every square foot is worth the same as the rest; if your lot is half swamp and half gold mine, and you only lose half, which half becomes pretty important in terms of valuation. Not everything is urban renewal projects or Central Arteries.
See: Fair compensation. It is fair market value, but there is no market value when the government condemns something.
Which is why the government will make an offer based on their appraisal of the value. And if you don't like it, you can negotiate for a better price, and ultimately sue for a better price. Then each side brings in appraisers and a jury decides based upon the evidence presented to them.
This isn't difficult. Courts have to make decisions about how much things cost all the time.
The Ninth amendment clearly establishes states rights.
No, the Ninth merely says that the enumeration of rights elsewhere in the Constitution cannot be read to mean that they are the only rights. It doesn't establish any rights at all, in fact. Nor does it say how many rights there are, or what they are.
Also, you pretty obviously haven't read it, because it doesn't mention the states at all. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Do you see the word 'states' in there? I don't.
Meh. The job of a defense attorney is to get his client off the hook. Whether the client actually did it or not isn't relevant to him. That is only relevant to the other side. The last thing we need is for defense attorneys to end up working against their own clients merely because they are convinced by the prosecutor or plaintiff. If that happened, the defendant wouldn't get a fair trial. Our system is adversarial: both sides zealously fight one another. You don't want that to stop working, I assure you.
Actually, you shouldn't rely too much on the idea that couching a statement as an opinion will protect you. The states vary on this, IIRC, but it has been rejected as a matter of First Amendment law. The real issue is whether it is defamatory and there's nothing about an opinion that prevents this.
I can think of a few reasons why supreme court judges would be legitimately rated low.
I suspect that you mean to say 'justices,' not 'judges.'
commerce clause inversion
Which would be, what? The negative commerce clause?
allowing states to take people's property
Why? States have always had that power. Indeed, the federal Constitution only requires that governments pay fair compensation to the owner when they seize property under the eminent domain power. It not only doesn't prohibit it, but by making it conditional, it supports the idea of eminent domain. Which is not a bad idea, actually; that is how governments builds roads, among other things.
Allowing congress to blackmail the states by withholding highway (and other) funds
So you're saying that the Constitution imposes limits on the federal government spending its money which would prohibit this? Please feel free to point them out.
cowardly and un-statesmanlike refusal to hear critical cases of government malfeasance (like Robert Newdow's)
Pft. Newdow's case was hardly 'critical,' though I also would've liked to have it heard. But the Constitution does put significant procedural limits on the federal courts, and Newdow really did have a problem with standing. The Supreme Court once told George Washington to piss off (more politely than that) under similar circumstances, once. If you're going to complain that they are too loose with the Constitution, you need to realize that it is a two-edged argument.
The church is private property. That doesn't necessarily mean that every mention or depiction of the church follows it.
And also, no, you don't need permission from anyone to use a model of the White House. The best imaginable argument against it would be security concerns (which wouldn't apply for the church), but that argument falls flat: the interior organization of the White House isn't a secret. Hell, the thing's been there for over two hundred years. I suppose that you could argue that it is in bad taste, but that's not a good enough reason to force people to stop. (And besides, what if it was the FPS version of Bad Dudes?)
You were doing pretty good until the end there. You should've said you were packing your SCUBA apparatus.
That is by far the funniest thing I have read all week. And I've been going through documents, so I see a lot of funny things (and a million boring things).
All the states have enacted the UCC, and they did so decades ago. It actually is pretty useful and does a lot of things. It's a good law on the whole, and the bad bits, like UCITA have been flops. Just fix this particular issue rather than throwing the baby out with the bathwater.
And if you can show the court that this is the case, then that strengthens your argument as to the EULA not being enforceable. Or at the very least, it helps to convince the other side to let you return it for a refund after all.
However, there is a dispute over the particular reading of the UCC that is the key to whether EULAs are enforceable or not. See Klocek v. Gateway, 104 F. Supp. 2d, 1332 (D. Kan. 2000) for an anti-EULA case. There are some other fun EULA cases too, such as Spech v. Netscape, where some users were found to not be bound by the EULA because they hadn't read it, weren't sufficiently made aware of it, and didn't have to read it as a step to make the software work in its ordinary functioning.
Well, the Red book is okay, but I think that the later generation of manuals was better.
but the fact of the matter is that society has deemed breaking copyright is wrong.
Really? I would imagine that the utilitarian nature of copyright and the commonality of infringement indicate otherwise. But what I'm really interested in is this:
(I'm thinking life of author, or 30 years whichever is less, one time renewable),
How the hell would the renewal term for that work?
Actually the courts have held that even the particular expression of a recipe is not copyrightable. They said that the format of a recipe is so well-define, and so brief, that there is absolutely no creativity in the layout or formatting, the only creativity is in the recipe itself.
No, that just runs into particular expressions. I agree that your average expression of a recipe is uncopyrightable because it is a simple statement of an uncopyrightable method, with nothing copyrightable added. This is particularly so given the merger doctrine. But it doesn't mean that all expressions of recipes are uncopyrightable.
For example, let's say that we made a video recording with no audio track. A chef could be filmed gathering together various ingredients, measuring out the appropriate portions, mixing them together, cooking it for a certain period of time, etc. The entire video would compromise the expression of the recipe. And given the general requirements for a copyrightable picture or video, it would be easy to copyright the recording. However, the underlying recipe -- the actual list of ingredients and the steps performed to produce the finished food product -- would not be protectable because it is uncopyrightable subject matter. Which means that while someone could lawfully write down what ingredients there were and what you do with them, they could not just make a copy of the entire video. The video is the expression, the recipe it illustrates is the idea.
a list of ingredients, which isn't copyrightable in any form
What if it was a still life oil painting? (Assume you're making fruit salad)
As for patents, patents have to be a useful progression of science, and the courts have held that 'a method to make a certain food' is not 'original'.
Actually patents have to promote the progress of the arts. Copyrights deal with science. This is why prior art is such a big deal in patent-land. Further, patentable inventions must be novel and nonobvious. Originality is not a requirement for patents, it's a requirement for copyrights (which don't care about either novelty or nonobviousness). Anyway, you're wrong. Provided that your recipe meets the various requirements for patentability, it is patentable. And it does happen -- there have been patented food items, because there are plenty of things that haven't been invented yet. It's just uncommon that anyone even bothers.
And copyrights prevent copying 'works of the mind', but allow using them. (Just ask the people who can't copyright recipes about that.)
Well... it's just that a recipe is subject to the idea/expression dichotomy, just like everything else in the copyright world. The expression of a recipe may be copyrightable, but the method it describes is not, and even if a particular expression is copyrightable, that won't preclude other people from expressing the same recipe. The method may, OTOH, be patentable, as patents are perfectly capable of applying to methods, to the finished product, etc. provided that they meet the requirements for patentability (e.g. novelty, nonobviousness, the time bar).
But this is a minor nit; you've generally got the right idea about all this. Kudos.
You could use your brain and come up with something (a device, a piece of art/book/whatever) and could justifiably hope to make money off it.
You could do that before. Certainly plenty of people have created works and invented inventions and made money from them in some fashion or another. Of course, there have also been those who did those things without the incentive of a set of exclusive rights which may be exploited for monetary gain; let's not forget about them.
More importantly, however, you've only touched on copyrights and patents there. "Intellectual property" encompasses other areas as well. Trademarks, for example, are neither creative works nor inventions, and have been around and to varying degrees been protected for a lot longer than than, say, the Magna Carta has been around. The same goes for trade secrets.
But they all protect the same thing, works of the mind. And that's where the term "intellectual property rights" come from.
And of course, trademarks are not works of the mind. Neither are publicity rights. They protect reputation. A merchant or a celebrity cannot create their reputation with their mind, they have to earn a reputation, which is held in the minds of everyone else around them. And while they may have the right to protect their reputation from encroachment, it isn't the creation of intellect, not even a little bit. It's a matter of how they were perceived.
sometimes I also want to talk about rights inherent in works of the mind in general.
Then do so, but as I've shown, using the term "intellectual property" simply doesn't accomplish that. As I said before, it tries to encompass too many unrelated things.
A drug is covered by patents. The appearance of the drug is protected by a design trademark. The drug's name and its manufacturer's name are protected by trademark law. Instructions, artwork, etc accompanying the packet it comes in may be copyrighted. To sum up, that box you buy at the pharmacy is protected by a whole class of Intellectual Property Rights.
But if you want to talk about the rights regarding the box from the druggist, why are you limiting yourself? There are other rights too, such as the personal property rights as to the tangible box and its contents. You failed to mention that. And why are you using a term which is inclusive of the right of publicity, which is wholly inapplicable to a box? You're using a term which is both overinclusive and underinclusive. That's not a good term for those reasons alone.
And of course, that it tries to invoke the idea of real and personal property, implies that it is a deliberately misleading term. Copyrights, patents, trademarks, trade secrets, publicity rights, etc. are not in any way derived from or related to property law of any kind.
So change the patenting process -- something lots of people are working on.
As it happens, I do advocate for reforming these laws. But this is not what we were discussing. We were discussing the term "intellectual property" and how it is an attempt to defeat attempts at reform by reframing the debate. Don't change the subject.
But don't throw the baby out with the bathwater and childishly cry out against IP.
Idiot. I'm complaining about the _words_, and that they are an empty suit, signifying nothing. I'm not complaining -- in this thread, anyway -- about the actual underlying legal regimes, each of which stands alone, and has its own name.
People use the term "Intellectual Property" s because they are collectively a class of property rights of immaterial objects.
Except that that's untrue. They aren't really property rights, and they certainly cannot reasonably be thought of in a collective fashion. Copyrights and patents are mildly related to one another only in that they have similar ends and means, but this is only so at the very highest, abstract levels. Trademarks are wholly unrelated to either. Trade secrets too are unrelated. Publicity rights are slightly similar to trademarks, but generally are not.
You agree that people who aren't really well-versed in the subject get confused about these. Well I can tell you that people in the know generally don't use the term in discussions with one another. There's almost never any cause to, because it's quite rare to be talking much about them at once. Generally when you are talking about copyrights, you say copyrights, when talking about patents, you say patents, and so on. So if it's not a useful term for laypeople because it's confusing, and it's not a useful term for experts, because it's horribly vague and imprecise, then who is it useful for?
Other than being useful for people who want to promote an agenda by means of confusing and misleading people, I can't imagine.
It's interesting how fair use law says you're allowed to make one copy for "backup" purposes.. then doesn't really define what that term means. In IT, a backup kept on the same site as the original is hardly a backup at all.
In the US, at least, fair use says nothing of the kind. Fair use is an exception for anything that is fair. Sometimes backups are fair, sometimes they aren't. It depends on the specific circumstances involved.
If there is prima facie infringement, it's not fair use. You're just not getting this.
I think that the problem you are having is that you are likely reading the statute and forgetting that it is the courts who interpret it authoritatively. Agree or disagree with them, they are a legitimate part of the process, just like Congress, and you're stuck with them anyway.
In court, if a plaintiff wants to make a prima facie case for infringement, he must show that there is a valid copyright, that he can enforce that copyright, and that there was infringement (often called 'copying' even in cases not actually involving the reproduction right). A defendant can rebut that case by showing, e.g. that there wasn't a valid copyright. Only if the plaintiff can successfully make that prima facie case, will the defendant have the need to, and in fact the opportunity to, argue fair use. If the plaintiff cannot prove the prima facie elements, fair use never even enters the courtroom.
Yes, the statute says that fair use is not infringing. But the courts uniformly interpret this in such a way that there has to be at least an arguable infringement before fair use needs to be considered. Mainly, it is because it is easier to do it this way: if the plaintiff cannot prove that there was any infringement even if fair use was not considered, the case can be dispensed with right there! Courts reduce their workload by only considering arguments and counterarguments on an as-needed basis. Indeed, it's quite common to see courts completely ignore important issues in a case by finding a simpler way of dispensing with it. See e.g. the famous Newdow case (the 1st Amendment case about the Pledge of Allegiance) where the Supreme Court found that there was no standing, and thus didn't have to make any substantive decision whatsoever.
Fair use is simply not part of the plaintiff's case-in-chief. It's not even properly a rebuttal. It's a defense. It's the defendant's burden, and it comes in later, rather than sooner.
If they're sued for copyright infringement and believe they are engaged in a fair use exemption, they will be able to explain to their attorney what they were doing and why it should be allowed.
I think that you expect too much out of parties.
If you're trying to push the envelope beyond what's already established, then you're not arguing for 'fair use' at all. You're arguing that fair use should be extended to cover additional actions because they constitute a noninfringing use with no commercial damage as a result.
Any use can be a fair use. It has no boundaries, other than that it must have otherwise been infringing, because an otherwise non-infringing use needn't be fair at all. It's entirely case-by-case, and so there's no point in thinking of an envelope. Indeed, the whole reason why fair use is utterly nebulous is so that it can be extended as needed. Time shifting can be a fair use, but it was novel at the time, and it certainly only wins on the fourth factor.
As for what works and what doesn't, fair use is always tricky. Even if you think you're in well-established territory, e.g. news reporting or parody, maybe you're not, e.g. Harper & Row v. Nation, or Disney v. Air Pirates. And sometimes when you think that you're not, you are, e.g. Sony v. Universal, or Campbell v. Acuff-Rose.
The other exceptions to copyright are much firmer ground, but also a lot more limited.
Precisely. Of course, I think it's a good idea on its own merits and I would hope that other governments would consider it as well, but whether or not they adopted such a thing would be up to them.
No. New Jersey would need to have some sort of law or policy by which it doesn't have copyrights, because the federal government is certainly going to grant one to that state just as it would for any other author.
I always thought that NJ was owned by an organized crime syndicate, not it's citizens.
No, think about it. No rational person would ever want to own New Jersey. Really, the only people who would be crazy enough to want to own NJ are the same people who are crazy enough to live there!
Sure, it can be done. There's no reason why the government cannot condition acceptance of public funds on having any work that is wholly or partially funded with that money be in the public domain. It is of course up to the author as to whether or not to accept the money and the strings that accompany it. If the copyright is terribly important to them, they'll secure funding elsewhere.
such as whether police filming police actions (ie. producing wholly state-funded content) is privately-owned or public-domain material. That could touch on evidence laws too, perhaps?
Films made by police in the course of their official duties would fall under the government. The individual policeman is doing it as a policeman, not as a private person. As far as production of copies in evidence, courts routinely ignore copyright law for these sorts of things. The needs of the overall judicial system come first, and even if you wanted to argue it (which would be unbelievably foolish; litigants are guaranteed discovery and this would be guaranteed to piss off a judge) I cannot think of many stronger fair use arguments.
(I have heard of at least one lawyer who tried to interfere significantly in discovery with copyright arguments. I only heard of it long after the fact, but had it happened to me, I'd've pressed for sanctions from the court and the bar in a heartbeat.)
you have to proceed with the take down no matter if it is copyright material or not
No. First, the 17 USC 512 take-down system only covers copyrighted material, to the extent that it is copyrighted. So if you post public domain material, for example, then you can safely ignore a take-down notice. Second, ISPs aren't obligated to comply with the notice, although doing so will help to protect them in the event that the material really was put up in an infringing manner. Third, the person who put the material up can file a counter-take-down notice with the ISP, which requires them to put it back up again, or else lose protections against that person. Of course, this should only be done if that person believes that they acted lawfully and is willing to see things escalate.
Of course, if there's a court order, as opposed to a mere takedown notice or other cease and desist letter from an attorney, then the ISP had better comply with it. But that doesn't seem to have happened here, nor does it happen in most cases.
I was addressing the reason presented. There are in fact several independent reasons that ought to prevent this from being copyrightable: it's not creative, it's not meant to be a creative work, it's done by what is, ultimately, a government body. And there are reasons why even if it were, it shouldn't be relevant here, the main one being that it's become news and thus publicizing it is likely fair use.
Don't confuse that there is one reason against it with the idea that that would be the only reason.