(The above anon post was me. I must have accidentally checked the anonymous box before I clicked submit.)
Techically, no, someone cannot make derivative works without violating the statute. Will the copyright holder be aware of this action before distribution? Probably not.
I am not sure where everyone here is getting the idea that only distribution of derivatives is not allowed. That simply is not the case. Creation of derivatives is a right limited only to the copyright holder.
And by the way, the copy into ram issue is something that is covered by fair use.
1) It doesn't really matter. If the copyright holder is ok with them creating a derivate work, then he won't sue them. Its not like the police will intervene and stop anyone from creating a derivative work.
That's my point. Creation of a derivative work is limited to the copyright holder and a right that must be licensed out in order for someone else to do so.
There is a specific statutory provision that covers copies that are loaded into memory. Courts have also ruled this to be fair use.
And I am pretty sure the Game Genie case was ruled to be a fair use. Fair use doesn't come into play until there is an actual violation. It's been awhile since I've read that case but there is a string of cases that say you are allowed to copy a part of software that is original in order to get to the non-original and non-protectable idea that is behind it, as long as you delete that copy once you discover that "idea." (Ideas are not copyrightable btw). The reason this is fair use is because not allowing someone to do so would techically give the copyright holder protection for the idea as well. Copyright law was not meant to do that. This is why reverse engineering is allowed by copyright law and why so many EULAs specifically prohibit it.
Fair use may apply to some personal or educational uses but according to the summary, this is concerning a commercial use. Although those sometimes qualify for fair use, it is quite rare.
IANAL, but if you are not imposing a EULA, you shouldn't need any kind of license. End-user licenses restrict what can be done with the copy of the software that is owned. Licenses like the GPL restrict what can be done when redistributing the software, but impose nothing on the end-users. If you are not wanting to permit your end-users to redistribute, simple copyright is enough to protect your rights without the need for an additional licenseIf the software is not being redistributed and you aren't requiring a EULA, then the end-users are free to modify the software as they see fit (or do anything with it, except redistribute) under existing copyright law. So it seems copyright law as-is protects you from redistribution and permits your users the ability to modify the software, without the need of any license.
This is 100% incorrect. Copyright law does not allow some to create a derivative work without the consent of the copyright owner. And when I say derivative, I mean modification. The author of the summary is confused because he or she does not understand that a modification is a derivative work (assuming modification uses the original aspects of the work that the original author created himself.) You are assuming that copyright protects only from redistribution. That is wrong. Here is what the statute says:
15 USC 106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
No. The court said that the exemption is extremely narrow and that Duke's activities did not allow it to use the defense (which the court defined as solely for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry). Prior to this case it was believed that universities could experiment with patented inventions with no threat of an infringement suit.
The court noted that even projects undertaken without direct commercial application often âoeunmistakably further the institutes legitimate business interests... These projects also serve for example to increase the status of the institution and lure lucrative research grants, students and faculty.
You don't actually believe that Palm could argue that their phone development is solely for its amusement, to satisfy its idle curiosity, or for strictly philosophical inquiry do you?
The IP owner has to be able to specifically show how the infringer did X which caused the IP owner to lose the ability to do Y.
I don't know where you are getting this requirement that the patent holder has to suffer some type of damage. That is completely untrue. Read the statute that I showed you. There is nothing in it that says damages are required before bringing a lawsuit. Then read that case like I told you to.
Good luck telling a judge that you THINK someone is infringing on your patent in their basement for their own use and you want in on the action because you're legally entitled.
Suing someone who you think is infringing is a different issue. That has to do with discovery. But once again I will point out, a DIY inventor in his basement cannot use a patented invention for his own use/research without a license or the risk of an infringement suit. The argument here is that the DIY inventor should be forced to buy the invention from the patent holder before he is able to use/research it. Sure, no one would probably find out about a DIY inventor but that again is a totally different issue.
And since you asked, I am a law student. And as far as I know, the RIAA deals with copyrights, not patents.
You are still incorrect. Liability does not turn on commercial activity. The patent holder could seek an injunction, which is often just as bad as financial damages. Apple could easily file an infringement suit against Palm to stop them from releasing the phone. Read the case Madey v. Duke. What you are claiming is common and incorrect belief.
No. You are wrong. Read the link I posted above you. Universities cannot use a patented invention without a license. Nor can a DIY inventor. Read the statute as well. There is no exception for non-commercial use. The statute prevents anyone other than the patent holder from making, using, offering to sell, selling or importing the patented invention.
No, you are only talking about damages. A patent is a right to exclude others from making, selling, etc.
35 U.S.C. 271(a):
Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
Another thing...This guy doesn't know what he's talking about. FTA:
But a patent infringement case can only proceed once the Pre hits the market â" widespread expectations call for a May launch â" and Apple has analyzed the deviceâ(TM)s software for possible infringement.
Totally not true! You are liable for patent infringement once you make the patented invention. You don't have to sell it to become liable.
3. SCOTUS invalidates software patents as non-Constitutional.
This case is not determining whether software patents are constitutional. It is a case to interpret the current patent law statute. 35 U.S.C. 101 to be exact.
The patent in Bilski isn't even a software patent.
Even so, unless the notes copy verbatim what the professor is saying (which I would think is quite rare), the professor doesn't own the copyright to them because they are written in the student's own words. Giving the professor copyright protection in it would essentially be giving the professor ownership of the idea that the lecture is based on. Ideas are not protected by copyright law.
Then you're licensing your own work, since the copyright of your own notes falls to you.
Of course, this is much murkier legal waters than the question the OP asked, which IMHO is pretty straightfoward: since the teacher was teaching them, and no other contract was in place, an implicit personal use license was granted.
I just want to point out that no license is needed because the author of the notes is the owner of the copyright of those notes so a license by the author to himself really makes no sense.
I know you are supposed to advocate fully for your client but doesn't doing something like that pretty much prevent these lawyers from ever winning a case in front of that judge ever again? Doesn't seem too smart.
Apparently these lawyers have never heard that "US District Court judges are the most powerful people in the land."
Actually, I seem to recall that since they are minors this will be wiped off the record once they turn 18 (assuming of course that the images are no longer on their phones at which point the will be adults with child porn and then your statement holds).
I'm sure it depends on how the law is written but this is what the article says about that:
Artur said that because there is no mandatory minimum sentence under Pennsylvaniaâ(TM)s child pornography law, unlike the federal statute, the students would not necessarily be incarcerated if they are found guilty. But he noted that convictions would have "serious, serious implications," including forcing them having to register as sexual offenders for at least 10 years.
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Techically, no, someone cannot make derivative works without violating the statute. Will the copyright holder be aware of this action before distribution? Probably not.
I am not sure where everyone here is getting the idea that only distribution of derivatives is not allowed. That simply is not the case. Creation of derivatives is a right limited only to the copyright holder.
And by the way, the copy into ram issue is something that is covered by fair use.
1) It doesn't really matter. If the copyright holder is ok with them creating a derivate work, then he won't sue them. Its not like the police will intervene and stop anyone from creating a derivative work.
That's my point. Creation of a derivative work is limited to the copyright holder and a right that must be licensed out in order for someone else to do so.
There is a specific statutory provision that covers copies that are loaded into memory. Courts have also ruled this to be fair use.
And I am pretty sure the Game Genie case was ruled to be a fair use. Fair use doesn't come into play until there is an actual violation. It's been awhile since I've read that case but there is a string of cases that say you are allowed to copy a part of software that is original in order to get to the non-original and non-protectable idea that is behind it, as long as you delete that copy once you discover that "idea." (Ideas are not copyrightable btw). The reason this is fair use is because not allowing someone to do so would techically give the copyright holder protection for the idea as well. Copyright law was not meant to do that. This is why reverse engineering is allowed by copyright law and why so many EULAs specifically prohibit it.
I am not sure where you are getting this idea. The Act says "to prepare derivative works" not "distribute derivative works."
But hey, if you want to subject yourself and your company to the $250,000 statutory damage per violation, go right ahead.
And before you say it, a derivative work is considered a copy, so 106(3) covers distribution of derivatives as well.
Fair use may apply to some personal or educational uses but according to the summary, this is concerning a commercial use. Although those sometimes qualify for fair use, it is quite rare.
IANAL, but if you are not imposing a EULA, you shouldn't need any kind of license. End-user licenses restrict what can be done with the copy of the software that is owned. Licenses like the GPL restrict what can be done when redistributing the software, but impose nothing on the end-users. If you are not wanting to permit your end-users to redistribute, simple copyright is enough to protect your rights without the need for an additional licenseIf the software is not being redistributed and you aren't requiring a EULA, then the end-users are free to modify the software as they see fit (or do anything with it, except redistribute) under existing copyright law. So it seems copyright law as-is protects you from redistribution and permits your users the ability to modify the software, without the need of any license.
This is 100% incorrect. Copyright law does not allow some to create a derivative work without the consent of the copyright owner. And when I say derivative, I mean modification. The author of the summary is confused because he or she does not understand that a modification is a derivative work (assuming modification uses the original aspects of the work that the original author created himself.) You are assuming that copyright protects only from redistribution. That is wrong. Here is what the statute says:
15 USC 106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
http://www.copyright.gov/title17/92chap1.html#106
As you can see, derivative and distribution are two separate rights granted to the copyright holder.
Payback.
That stuff should not be in a STIMULUS bill. Each of those things should be in their own separate bills.
The court noted that even projects undertaken without direct commercial application often âoeunmistakably further the institutes legitimate business interests ... These projects also serve for example to increase the status of the institution and lure lucrative research grants, students and faculty.
You don't actually believe that Palm could argue that their phone development is solely for its amusement, to satisfy its idle curiosity, or for strictly philosophical inquiry do you?
Any public display of the invention could be used to claim damages in court.
Public display? You clearly have no idea what you are talking about. Public display is a copyright law thing, not a patent law thing.
The IP owner has to be able to specifically show how the infringer did X which caused the IP owner to lose the ability to do Y.
I don't know where you are getting this requirement that the patent holder has to suffer some type of damage. That is completely untrue. Read the statute that I showed you. There is nothing in it that says damages are required before bringing a lawsuit. Then read that case like I told you to.
Good luck telling a judge that you THINK someone is infringing on your patent in their basement for their own use and you want in on the action because you're legally entitled.
Suing someone who you think is infringing is a different issue. That has to do with discovery. But once again I will point out, a DIY inventor in his basement cannot use a patented invention for his own use/research without a license or the risk of an infringement suit. The argument here is that the DIY inventor should be forced to buy the invention from the patent holder before he is able to use/research it. Sure, no one would probably find out about a DIY inventor but that again is a totally different issue.
And since you asked, I am a law student. And as far as I know, the RIAA deals with copyrights, not patents.
You are still incorrect. Liability does not turn on commercial activity. The patent holder could seek an injunction, which is often just as bad as financial damages. Apple could easily file an infringement suit against Palm to stop them from releasing the phone. Read the case Madey v. Duke. What you are claiming is common and incorrect belief.
No. You are wrong. Read the link I posted above you. Universities cannot use a patented invention without a license. Nor can a DIY inventor. Read the statute as well. There is no exception for non-commercial use. The statute prevents anyone other than the patent holder from making, using, offering to sell, selling or importing the patented invention.
Thank you. This is also why universities are liable for infringement when they simply use a patented invention in research. Example
35 U.S.C. 271(a):
Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
But a patent infringement case can only proceed once the Pre hits the market â" widespread expectations call for a May launch â" and Apple has analyzed the deviceâ(TM)s software for possible infringement.
Totally not true! You are liable for patent infringement once you make the patented invention. You don't have to sell it to become liable.
Does this guy even know what patents Apple is licensing? Doubtful considering most are not made public. FUD?
3. SCOTUS invalidates software patents as non-Constitutional.
This case is not determining whether software patents are constitutional. It is a case to interpret the current patent law statute. 35 U.S.C. 101 to be exact.
The patent in Bilski isn't even a software patent.
Which they should do. Judges interpret laws. They are not supposed to write laws.
Some of us don't like H1B visas whether they are fraudulent or not...
Even so, unless the notes copy verbatim what the professor is saying (which I would think is quite rare), the professor doesn't own the copyright to them because they are written in the student's own words. Giving the professor copyright protection in it would essentially be giving the professor ownership of the idea that the lecture is based on. Ideas are not protected by copyright law.
Ok. But like the other poster said, the teacher owns no copyright in the lecture unless s/he is recording it.
Then you're licensing your own work, since the copyright of your own notes falls to you.
Of course, this is much murkier legal waters than the question the OP asked, which IMHO is pretty straightfoward: since the teacher was teaching them, and no other contract was in place, an implicit personal use license was granted.
I just want to point out that no license is needed because the author of the notes is the owner of the copyright of those notes so a license by the author to himself really makes no sense.
Apparently these lawyers have never heard that "US District Court judges are the most powerful people in the land."
Actually, I seem to recall that since they are minors this will be wiped off the record once they turn 18 (assuming of course that the images are no longer on their phones at which point the will be adults with child porn and then your statement holds).
I'm sure it depends on how the law is written but this is what the article says about that:
Artur said that because there is no mandatory minimum sentence under Pennsylvaniaâ(TM)s child pornography law, unlike the federal statute, the students would not necessarily be incarcerated if they are found guilty. But he noted that convictions would have "serious, serious implications," including forcing them having to register as sexual offenders for at least 10 years.