Vicarious liability is a pretty well-established concept in copyright law as well...
Here's just one recent example:
"The Copyright Owners rely on the two recognized theories of secondary copyright liability: contributory copyright infringement and vicarious copyright infringement." MGM Studios, Inc. v. Grokster Ltd., 380 F.3d 1154, 1160 (9th Cir. 2004)
Here's a much older one: " . . . the imposition of vicarious liability in the case before us cannot be deemed unduly harsh or unfair. Green has the power to police carefully the conduct of its concessionaire Jalen; our judgment will simply encourage it to do so, thus placing responsibility where it can and should be effectively exercised. Green's burden will not be unlike that quite commonly imposed upon publishers, printers, and vendors of copyrighted materials." Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 308 (2d Cir. 1963)
But the sites themselves do not carry the files. They only have information about the trackers, and are not involved in the actual distribution or sharing of the files.
So how do they plan to sue them?
Look up "contributory liability" (and possibly "vicarious," depending on the fact pattern). If you make a material contribution to a direct infringement, with actual or constructive knowledge, you can be liable for copyright infringement; likewise, if you benefit financially from the infringing activity or by providing the site and facilities for others' copyright infringement, and you have the ability to police (e.g., you can take a look at the contents of your server and see what people are using it for), you can also be liable.
Sigh. Do you actually know what fair use is? It's a defense to copyright infringement. It's (at least) a four element test. It's judicially applied on a case-by-case basis. What you're describing almost certainly ain't it.
It's a legal term of art with a specific meaning. You'd (royal "you") would be clawing my eyes out if I was talking about my "internet" made up of IPX workstations running Novell NetWare 3.
While I'm sure you want to believe that any use you decide you want to make of copyrighted works is a fair use, please do try to use the technical term of art in a way that's supported by the body of law the term of art encompasses? Thanks.
I don't want to get sued for downloading a movie that I own a license for but is damaged.
Sigh. Have you read the copyright act? 17 USC? You don't have any license for the movie. Buying a DVD does not convey any rights to the copyrighted work it contains (17 USC 202). Further, DVDs are sold for private performance only, which is *not* a right exclusively reserved to the copyright holder (see the enumerated list at 17 USC 106). So you neither buy nor need any license in the copyrighted work. And while there may be a statutorily created right for private copying of sound recordings (aka music), as the Audio Home Recording Act has been interpreted (see the space shifting analysis in RIAA v. Diamond), and while computer software may be copied for backup purposes (17 USC 117), there is no carte blanche rule to "back up" by copying, and certainly not by downloading, a motion picture or audio-visual work. No, the motion picture contents of a DVD are not "software" (though the menus may be). See the definition for a "copy" in 17 USC 101. Thanks for playing.
The apartment tenant could have been killed by the toilet seat from the deorbiting Mir station, and be cursed to forever walk the undead world known as http://www.imdb.com/title/tt0348913/Toilet Seat Girl...
Not really. What the RIAA was doing was never really in the DMCA, a fact noted by the D.C. Circuit when they overturned the District Court's decision on a pure statutory analysis. This leaves us where we started, minus only a dubious construction atop the DMCA, an RIAA gamble that didn't pan out.
That is based on the assumption that copyright exists and prohibits individual copying. But that is just the issue at hand: what should copyright cover? If the public decides it can share copies, then the publisher is not entitled to expect to be paid for each copy, and so cannot claim there is a "loss" when it is not. In other words, the "loss" comes from the copyright system; it is not an inherent part of copying. Copying in itself hurts no one.
My sense is not the economic loss, but simply the lack of control; the loss of the vested statutorily granted exclusive rights (17 SC 106), that's primarily at issue. If you disagree with the [RI|MP]AA asserting those rights, then you agree that the GPL is null and void and anyone, including SCO, can come along and use whatever they want, modify whatever they want, etc., without repercussion or remedy. The GPL (which/.'ers seem to support) and the media industries (for whom/.'ers seem to cheer every court loss) both depend on copyright protection.
Settlements have no precedential value, so, the question(s) raised by Kodak's original patent prosecution claim remain....NET operates in much the same way as Java.
We really don't know enough about the natural (historical) cycles of our world; to attribute global warming to Bush and Ford Excursions is, I believe, a gross oversimplification. No doubt we're contributing, but, I'm of the belief it would happen anyway... See, for example, "massive global warming" on... mars. (Before our rovers got there and started driving around with their big diesel engines... er, wait...)
I don't know if it would work, haven't tried it, but something like:
http://www.dlink.com/products/?pid=283, http://www.dlink.com/products/?pid=352, or http://www.linksys.com/products/product.asp?grid=3 5&scid=43&prid=640 coupled with the Linux-running Linksys? (Does it have the ability to mount remote drives? I'm assuming it does...)
While the lawsuits have to date focused on uploaders (unauthorized distributors), every U.S. court that's looked at P2P systems has held downloading to also be an infringement of an exclusive right (reproduction). See, for example:
"We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders' exclusive rights: the rights of reproduction, 106(1); and distribution, 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights." A&M Records v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir., 2001).
"Just as in Napster, many of those who use Defendants' software do so to download copyrighted media files, including those owned by Plaintiffs, and thereby infringe Plaintiffs' rights of reproduction and distribution." MGM Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029, 1035 (C.D. Cal. 2003).
Did anyone ever stop to think about the different evidence problems in suing for downloading vs. suing for uploading? If you're uploading, I can come along and download from you, record the TCP/IP packets, and have enough to start the lawsuit process. But to go after you for downloading, I'd have to make the material available for you to download from me, which raises a bunch of hairy issues...
This is novel ground being tread. These are (AFAIK) the first end user P2P suits to hit the courts. I imagine the attorneys are being as pragmatic as possible, going for the cleanest targets and the low-hanging fruit first. Once a few of these have gone to trial (and assuming success), emboldened, I think you'll see downloading cases sooner than later.
Re:Philosophical v. practical origins of IP law
on
Is IP Property?
·
· Score: 2, Informative
I forget where copyright comes from . . .
The Statute of Anne, 1710 (IIRC).
Re:Philosophical v. practical origins of IP law
on
Is IP Property?
·
· Score: 1
We might also try to more precisely define "useful" - maybe to exclude pop music.
"You've got to choose between happiness and what people used to call high art. We've sacrificed the high art. We have the feelies and the scent organ instead."
"But they don't mean anything."
"They mean themselves; they mean a lot of agreeable sensations to the audience."
5) Copyright infringement is a civil crime, not a criminal one. The gvt has no case in trying someone under criminal law for copyright infringement.
Actually, under 17 USC 506 (enacted in 1976, effective in 1978, so predates P2P and even the Betamax), there's a criminal component to the Copyright Act. Both a civil complaint and criminal charges can be brought. Just ask Arcady.
The Sonny Bono extension act served only to bring US protection terms in line with those of Europe. See: http://www.uspto.gov/web/offices/com/annual/1998/a 98r-5.htm. Any relationship with Mickey was coincidence, unless you believe France, Germany, et al, were looking out for the Mouse's best interests...
I was there, and listening on an aviation handset. (Hoping my videocamera picked up the chatter.) The engine cut out prematurely, the pilot did not shut the engine down. However, in spite of this, SpaceShipOne did achieve its target altitude.
Just because it was "going on for YEARS," doesn't mean it was legal or OK then, either. The MPAA isn't taking away your rights, they're enforcing the rights THEY have, as specified in 17 USC 106; among those are the EXCLUSIVE right to reproduce and distribute copyrighted works (absent some sort of exception, like that carved for sound recordings under the Audio Home Recording Act, or that for a backup copy of computer software under 17 USC 117). The motion picture works on DVDs are not computer software. There is no right to copy them. Sorry.
NEED, eh? Wow. What, pray tell, did people do 10 short years ago? (In 1994, if you were middle class and had a mobile phone, it was a car phone - remember those? You didn't carry it with you, it was mounted in the car, a big black box, a handset, an antenna on the windscreen or stuck atop the boot...) I assume expectant and new parents NEEDed this technology then, but instead had to put their lives on hold...?
Cover bands aren't producing derivative works, they're making a public performance and/or a sound recording of the original musical composition (itself a copyrighted work). However, they're allowed to do this under the Compulsory License scheme built into the copyright act; see 17 USC 115. Note that they have to pay a small ($.08/album) royalty for any mechanical copy sold. I also think that *not* putting, say, Frank Zappa's name in at least the song credits (assuming other credits were listed) would open up the cover band to a Lanham Act claim, but that's just me... (A "false designation of origin," 15 USC 1125.)
IAN(Y)AL, but, under U.S. Copyright law, any publicly distributed phonorecord (all of the songs on that website, and Eminem's song, qualify) becomes eligible for a compulsory license under 17 USC 115. If the Eminem ad is like the ones currently on Apple's site, Apple's not using the master recording, just the lyrics and rhythm/melody (the "musical composition"), and as such, can argue the compulsory license exception. The only requirements are the payment of a royalty for each copy distributed (IIRC, it's around $.08/recording in physical media, less for Internet streams), and that the song cannot be substantially changed.
This provision is what lets Marilyn Manson cover "Tainted Love" and "Sweet Dreams," Type O Negative cover Cinnamon Girl, Tori Amos cover Smells Like Teen Spirit (and, well, every song on StrangeLittleGirl, plus Bad Company on her Under The Pink tour, plus...)
As an aside, it's kind of ironic that Eminem is suing for use of his work, when Dido had no idea he had sampled her work ("Stan") until she heard the CD. Luckily she was "blown away" and agreed to it - and later toured with him...
Slashdot Mirror
Vicarious liability is a pretty well-established concept in copyright law as well...
Here's just one recent example:
"The Copyright Owners rely on the two recognized theories of secondary copyright liability: contributory copyright infringement and vicarious copyright infringement." MGM Studios, Inc. v. Grokster Ltd., 380 F.3d 1154, 1160 (9th Cir. 2004)
Here's a much older one: " . . . the imposition of vicarious liability in the case before us cannot be deemed unduly harsh or unfair. Green has the power to police carefully the conduct of its concessionaire Jalen; our judgment will simply encourage it to do so, thus placing responsibility where it can and should be effectively exercised. Green's burden will not be unlike that quite commonly imposed upon publishers, printers, and vendors of copyrighted materials." Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 308 (2d Cir. 1963)
But the sites themselves do not carry the files. They only have information about the trackers, and are not involved in the actual distribution or sharing of the files.
So how do they plan to sue them?
Look up "contributory liability" (and possibly "vicarious," depending on the fact pattern). If you make a material contribution to a direct infringement, with actual or constructive knowledge, you can be liable for copyright infringement; likewise, if you benefit financially from the infringing activity or by providing the site and facilities for others' copyright infringement, and you have the ability to police (e.g., you can take a look at the contents of your server and see what people are using it for), you can also be liable.
Have I exercised fair use? Definitely.
Sigh. Do you actually know what fair use is? It's a defense to copyright infringement. It's (at least) a four element test. It's judicially applied on a case-by-case basis. What you're describing almost certainly ain't it.
It's a legal term of art with a specific meaning. You'd (royal "you") would be clawing my eyes out if I was talking about my "internet" made up of IPX workstations running Novell NetWare 3.
While I'm sure you want to believe that any use you decide you want to make of copyrighted works is a fair use, please do try to use the technical term of art in a way that's supported by the body of law the term of art encompasses? Thanks.
I don't want to get sued for downloading a movie that I own a license for but is damaged.
Sigh. Have you read the copyright act? 17 USC? You don't have any license for the movie. Buying a DVD does not convey any rights to the copyrighted work it contains (17 USC 202). Further, DVDs are sold for private performance only, which is *not* a right exclusively reserved to the copyright holder (see the enumerated list at 17 USC 106). So you neither buy nor need any license in the copyrighted work. And while there may be a statutorily created right for private copying of sound recordings (aka music), as the Audio Home Recording Act has been interpreted (see the space shifting analysis in RIAA v. Diamond), and while computer software may be copied for backup purposes (17 USC 117), there is no carte blanche rule to "back up" by copying, and certainly not by downloading, a motion picture or audio-visual work. No, the motion picture contents of a DVD are not "software" (though the menus may be). See the definition for a "copy" in 17 USC 101. Thanks for playing.
The apartment tenant could have been killed by the toilet seat from the deorbiting Mir station, and be cursed to forever walk the undead world known as http://www.imdb.com/title/tt0348913/Toilet Seat Girl...
Wahoo! Part of DMCA shot down!
Not really. What the RIAA was doing was never really in the DMCA, a fact noted by the D.C. Circuit when they overturned the District Court's decision on a pure statutory analysis. This leaves us where we started, minus only a dubious construction atop the DMCA, an RIAA gamble that didn't pan out.
That is based on the assumption that copyright exists and prohibits individual copying. But that is just the issue at hand: what should copyright cover? If the public decides it can share copies, then the publisher is not entitled to expect to be paid for each copy, and so cannot claim there is a "loss" when it is not. In other words, the "loss" comes from the copyright system; it is not an inherent part of copying. Copying in itself hurts no one.
My sense is not the economic loss, but simply the lack of control; the loss of the vested statutorily granted exclusive rights (17 SC 106), that's primarily at issue. If you disagree with the [RI|MP]AA asserting those rights, then you agree that the GPL is null and void and anyone, including SCO, can come along and use whatever they want, modify whatever they want, etc., without repercussion or remedy. The GPL (which /.'ers seem to support) and the media industries (for whom /.'ers seem to cheer every court loss) both depend on copyright protection.
Settlements have no precedential value, so, the question(s) raised by Kodak's original patent prosecution claim remain... .NET operates in much the same way as Java.
:\
I'm sure other languages do as well...
We really don't know enough about the natural (historical) cycles of our world; to attribute global warming to Bush and Ford Excursions is, I believe, a gross oversimplification. No doubt we're contributing, but, I'm of the belief it would happen anyway... See, for example, "massive global warming" on ... mars. (Before our rovers got there and started driving around with their big diesel engines... er, wait...)
m ars011207.html
http://abcnews.go.com/sections/scitech/DailyNews/
I don't know if it would work, haven't tried it, but something like:
3 5&scid=43&prid=640 coupled with the Linux-running Linksys? (Does it have the ability to mount remote drives? I'm assuming it does...)
http://www.dlink.com/products/?pid=283, http://www.dlink.com/products/?pid=352, or http://www.linksys.com/products/product.asp?grid=
While the lawsuits have to date focused on uploaders (unauthorized distributors), every U.S. court that's looked at P2P systems has held downloading to also be an infringement of an exclusive right (reproduction). See, for example:
"We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders' exclusive rights: the rights of reproduction, 106(1); and distribution, 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights." A&M Records v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir., 2001).
"Just as in Napster, many of those who use Defendants' software do so to download copyrighted media files, including those owned by Plaintiffs, and thereby infringe Plaintiffs' rights of reproduction and distribution." MGM Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029, 1035 (C.D. Cal. 2003).
Did anyone ever stop to think about the different evidence problems in suing for downloading vs. suing for uploading? If you're uploading, I can come along and download from you, record the TCP/IP packets, and have enough to start the lawsuit process. But to go after you for downloading, I'd have to make the material available for you to download from me, which raises a bunch of hairy issues...
This is novel ground being tread. These are (AFAIK) the first end user P2P suits to hit the courts. I imagine the attorneys are being as pragmatic as possible, going for the cleanest targets and the low-hanging fruit first. Once a few of these have gone to trial (and assuming success), emboldened, I think you'll see downloading cases sooner than later.
The Statute of Anne, 1710 (IIRC).
"You've got to choose between happiness and what people used to call high art. We've sacrificed the high art. We have the feelies and the scent organ instead."
"But they don't mean anything."
"They mean themselves; they mean a lot of agreeable sensations to the audience."
- Aldous Huxley, Brave New World
5) Copyright infringement is a civil crime, not a criminal one. The gvt has no case in trying someone under criminal law for copyright infringement.
Actually, under 17 USC 506 (enacted in 1976, effective in 1978, so predates P2P and even the Betamax), there's a criminal component to the Copyright Act. Both a civil complaint and criminal charges can be brought. Just ask Arcady.
The Sonny Bono extension act served only to bring US protection terms in line with those of Europe. See: http://www.uspto.gov/web/offices/com/annual/1998/a 98r-5.htm. Any relationship with Mickey was coincidence, unless you believe France, Germany, et al, were looking out for the Mouse's best interests...
I was there, and listening on an aviation handset. (Hoping my videocamera picked up the chatter.) The engine cut out prematurely, the pilot did not shut the engine down. However, in spite of this, SpaceShipOne did achieve its target altitude.
Does anyone know of a mass produced land/water capable vehicle past or present?
Porsche made one; I believe it was the Porsche 166.
Except that there *are* Kazaa-compatible clients that run on the Mac.
Remember that Johnny Deep (Aimster) is representing himself, pro se.
Also, a breach of contract claim is a contract law claim, not a tort claim. Thus, tort reform wouldn't have mattered.
There's a free 120-day trial of SQL Server, also. DAMHIK.
Just because it was "going on for YEARS," doesn't mean it was legal or OK then, either. The MPAA isn't taking away your rights, they're enforcing the rights THEY have, as specified in 17 USC 106; among those are the EXCLUSIVE right to reproduce and distribute copyrighted works (absent some sort of exception, like that carved for sound recordings under the Audio Home Recording Act, or that for a backup copy of computer software under 17 USC 117). The motion picture works on DVDs are not computer software. There is no right to copy them. Sorry.
NEED, eh? Wow. What, pray tell, did people do 10 short years ago? (In 1994, if you were middle class and had a mobile phone, it was a car phone - remember those? You didn't carry it with you, it was mounted in the car, a big black box, a handset, an antenna on the windscreen or stuck atop the boot...) I assume expectant and new parents NEEDed this technology then, but instead had to put their lives on hold...?
Cover bands aren't producing derivative works, they're making a public performance and/or a sound recording of the original musical composition (itself a copyrighted work). However, they're allowed to do this under the Compulsory License scheme built into the copyright act; see 17 USC 115. Note that they have to pay a small ($.08/album) royalty for any mechanical copy sold. I also think that *not* putting, say, Frank Zappa's name in at least the song credits (assuming other credits were listed) would open up the cover band to a Lanham Act claim, but that's just me... (A "false designation of origin," 15 USC 1125.)
Guess you'd better think twice before you burn Chrome, now. ;)
This provision is what lets Marilyn Manson cover "Tainted Love" and "Sweet Dreams," Type O Negative cover Cinnamon Girl, Tori Amos cover Smells Like Teen Spirit (and, well, every song on StrangeLittleGirl, plus Bad Company on her Under The Pink tour, plus...)
As an aside, it's kind of ironic that Eminem is suing for use of his work, when Dido had no idea he had sampled her work ("Stan") until she heard the CD. Luckily she was "blown away" and agreed to it - and later toured with him...