That's not true. Fair Use is by definition not infringement (read the law). Fair Use is a restriction on the scope of copyright -- if it's Fair Use, the public never gave the copyright holder permission to restrict that use in the first place!
I have read 17 U.S.C. 107 many times. In fact, I was reading it again for class tomorrow just before reading your post. Section 107 is a limitation on 17 U.S.C. 106 and says that "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work,... is not an infringement of copyright." What it doesn't say is that the acts which may be characterised as fair use are not infringement. Copying a portion of a book for scholarly comment is likely to be found a fair use, but until it is the copying is still an exercise of one of the exclusive rights under section 106 and an infringement. The way to look at it is this, if you fail to convince the judge or jury that your use was "fair" under section 107, you have infringed the exclusive rights granted under section 106. It is only when you have convinced a judge or jury that your use was "fair" that it is rendered noninfringing.
You can't meaningfully plead "Fair Use" and "I did infringe" with respect to the same use because it is a contradiction in terms. It's analogous to pleading "innocent" and "guilty" at the same time to the same murder.
No, it's not analogous to pleading "innocent" and "guilty," but is more analogous to pleading "not responsible by reason of insanity." You're saying, I committed an act that would otherwise be unlawful, but there is a justification/excuse which prevents this punishment from attaching as a result of my actions.
You're right that arguing about this case is silly as it will never get to court. I guess I just love to argue, which is probably why I'm wasting three years of my life in law school.
As for the distinction between policing and protecting, it seems to me that they're different faces of the same coin. You may need to "detect and prosecute violations" to "maintain the status or integrity" of your mark. Like you say, it doesn't make much difference in this case, but it does matter to companies who rely on their trademark to ensure differentiation in a competitive marketplace.
There is no such thing as protecting your trademark. As long as you continue to use it in the course of business it is protected. It is an urban legend, an old wives tales, general bullshit. There has never been a case where a company failed to protect its trademark and lost.
The case you quote has to do with a company not policing its trademark when it is used in business by other businesses.
Which is it? Do you have rights to exclude another user so long as you use the mark in commerce or can you lose those rights by not policing the mark. Your posts seem to imply both.
For the record, I never said that a comedian using a mark in a joke would constitute infringement. Infringement requires use in commerce that generates a liklihood of confusion as to the source of goods or services. I merely said that it could be construed as use in commerce, which would probably be enough to survive a motion for summary judgment and cause more trouble than it should as liklihood of confusion is a question of fact.
A copyright owner does have an obligation to police its rights in order to mitigate damages prior to suit and avoid limitation to statutory damages. I don't believe I ever suggested that a copyright could be forfeited by lack of enforcement. Avoiding forfeiture is not the only reason to enforce your rights.
That was Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). It should be read by anyone commenting on copyright and parody before posting as it is the seminal parody case currently controlling U.S. law.
There's a great case on the issue where Jerry Fallwel sued Hustler for a parody of a Compari ad suggesting that Fallwel's "first time" (not explicitly referencing sex, but this was Hustler) was in an outhouse with his mother and a goat. Hustler was found to be protected because it was parody, the ad said it was parody, and anybody with half a brain reading it could tell that it was a parody and did not really intend to state factually that Jerry Fallwel had sex with his mother and a goat in an outhouse.
We in the U.S. also have these lovely distinctions to be made between "public officials" "public figures" and "private individuals" that affect the standards a publisher must adhere to in order to avoid libel charges. Basically, in the case of a public official or public figure, all you have to do is not wantonly and willfully disregard the truth or falsity of what your publishing. Even if it isn't true but you had some reason to think it might be, you're probably ok.
First - a trademark can be lost through a process known as "genericide," which happens, among other ways, when a mark is not protected against uses other than those by the owner identifying a good or service sold in commerce. See The Murphy Door Bed Co., Inc. v. Interior Sleep Systems, Inc., 874 F.2d 95 (2d Cir. 1989) ("In finding a lack of genericness, the district court was influenced by Murphy's efforts at policing it's mark"). It is only when a mark has "entered the public domain beyond recall" that policing is of no consequence. See King Seely Thermos Co. v. Aladdin Indus., Inc., 321b F.2d 577, 579 (2d Cir. 1963).
Second - It is using a trademark in commerce in such a way that creates a likelihood of confusion as to the source of goods or services that constitutes trademark infringement. 15 U.S.C. 1114. Because "commerce" has such a broad definition thanks to Congress and the courts wanting to include everything under the sun in the Commerce Clause power, telling a joke could constitute using a mark in commerce if, for example, it was told by a comedian at a performance for which he was receiving money.
Third - Kimberly-Clark still holds a valid trademark on Kleenex because they have policed the mark. You will notice that they are never simply "Kleenex," but always "Kleenex brand facial tissue." Just like the old "You can't Xerox a Xerox on a Xerox but we don't mind at all if you copy a copy on a Xerox copier" ad. It's all about ensuring that the mark is associated with a particular source of a type of product and not the type of product in general.
Fourth - If MasterCard and AmEx have registered trademarks, they need to assert trademark infringement as much as they would need to assert copyright infringement related to the style and structure of the ads. I think it highly unlikely that any copyright theory would succeed given the history of parody and fair use in the copyright jurisprudence. Given the Mattel v. MCA decision about that well known "German street walker" (er, Barbie) I doubt that a trademark claim would succeed either. That doesn't mean that neither of them should at least be brought to the attention of the potential infringer. Remember, fair use is an affirmative defense. When you plead fair use you are, in essense, saying, "yeah, I did infringe, but you can't hold me liable because what I did is protected." If your argument doesn't fly with the judge, you're going to be liable.
"Judicial activism" is a term that is frequently misused, usually for some political end. The way I understand it, judicial activism is for a judge to rule on a case with disregard for the commands of valid laws. Ruling a law to be invalid because it is preempted by a superior law is not activism, but an integral part of a judge's job.
Not really. Security through isolation works in the case of a "nuclear weapon command centre" or other such system. In any environment where security is essential there will be additional steps taken to ensure that security regardless whether the system is built on open- or closed-source software. My point was that obscurity in such cases provides little or no marginal security advantage.
The problem with your thinking is that you assume military applications would be opened. That's highly unlikely. Military applications may be built on an open source platform, but the code for a "nuclear weapon command centre" will remain closely guarded. And, as was mentioned earlier, terrorists don't need open source software to exploit security holes. Have you ever used Microsoft's Flight Simulator? How about Wilco's 767 Pilot-In-Command? There are two pieces of closed-source software that could have greatly facilitated the September 11, 2001 attacks.
"Everyday that code is incorporated into our command, control, communications and weapons systems. This must stop."
I don't know how they do things at his shop, but if the DoD is pulling code from CVS into their production systems without auditing it, we deserve whatever we get as a result. That said, I highly doubt that's happening and it's more likely this blowhard is just trying to put a good scare into the technophobic jarheads who control procurement.
Actually, they're both plausible. Apple undoubtedly has a right (and likely an obligation) to enforce the copyrights in the sound recordings and musical works it sells phonorecords and copies of through iTMS. Under 17 U.S.C. 1203(a) as a "person injured by a violation of section 1201" they have a right to "bring a civil action in an appropriate United States district court." And, under 17 U.S.C. 512(c) they have to send the nastygram to SourceForge in order to have any sort of club to wield to get SF to remove the project in an attempt to mitigate their damages.
Copyright law gives you fair use of a phonorecord in which a sound recording is fixed. A "phonorecord" is
[a] material object[] in which sounds... are fixed
by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
17 U.S.C. 101 (emphasis added). A harddrive containing an AAC file is a material object in which sounds are fixed by a method now known from which those sounds can be reproduced with the aid of a machine or device.
As for Apple's "right" to limit what you can do with a phonorecord, the fair use doctrine is judicially developed, see e.g. Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841), and predates 17 U.S.C. 107 so it cannot easily be abridged by contracts attempting to arrogate rights not granted by 17 U.S.C. 106 or by the DMCA. As such, I'll violate the DMCA and unenforceable contract clauses as much as I want in exercising my fair use rights.
Unfortunately for this gang of thieves, the GPL is not an entity copyright can be assigned to.
Even better, a written conveyance is only required for an assignment, i.e., non-reversionary transfer of some or all of the exclusive rights under 17 U.S.C. 106. There is no similar requirement that a license, i.e., a, potentially temorary, grant of a right to exercise one of the exclusive rights.
The show codes feature is probably the only good think WP has going for it. It can be a lifesaver a times though. Much of the secretarial staff at the various law offices I've worked at refuse to use anything but WP for precisely that reason.
Poor little Wanda the Fish, the GNOME fortune teller seems to be floating upside down in a rather putrid looking tank and tells me "The water needs changing! (look at today's date)"
I never said the original poster was right. I just said that the responder was wrong to assume that he was working for a law firm and that his comments constituted a troll for that reason. As you said, there are other reasons not to accept his comments.
That's what it sounds like at first blush. I'd be careful reading too much into that though. It could simply mean that they included a program licensed under the GPL in their UnixWare distribution. It would be nice though to see TSG put to the choice of distributing UnixWare under the GPL or doing a massive rewrite to extract everything they've misappropriated.
He never said he was with a law firm. He said he was an attorney with a medium sized company. I'm sure you've heard of such positions as, general counsel, inside counsel, etc.
TSG is suing IBM for copyright infringement, see their second amended complaint. IBM is most certainly right to think that this would strengthen their hand in the contract fight as well. If they can obtain a declaratory ruling to the effect that Linux does not infringe any TSG copyrights then TSG was completely without basis for terminating their contract (if they ever had one).
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I have read 17 U.S.C. 107 many times. In fact, I was reading it again for class tomorrow just before reading your post. Section 107 is a limitation on 17 U.S.C. 106 and says that "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, ... is not an infringement of copyright." What it doesn't say is that the acts which may be characterised as fair use are not infringement. Copying a portion of a book for scholarly comment is likely to be found a fair use, but until it is the copying is still an exercise of one of the exclusive rights under section 106 and an infringement. The way to look at it is this, if you fail to convince the judge or jury that your use was "fair" under section 107, you have infringed the exclusive rights granted under section 106. It is only when you have convinced a judge or jury that your use was "fair" that it is rendered noninfringing.
You can't meaningfully plead "Fair Use" and "I did infringe" with respect to the same use because it is a contradiction in terms. It's analogous to pleading "innocent" and "guilty" at the same time to the same murder.
No, it's not analogous to pleading "innocent" and "guilty," but is more analogous to pleading "not responsible by reason of insanity." You're saying, I committed an act that would otherwise be unlawful, but there is a justification/excuse which prevents this punishment from attaching as a result of my actions.
How many years have I been using A9 as an abbreviation for my nickname!! I should have bought up that damn domain!
As for the distinction between policing and protecting, it seems to me that they're different faces of the same coin. You may need to "detect and prosecute violations" to "maintain the status or integrity" of your mark. Like you say, it doesn't make much difference in this case, but it does matter to companies who rely on their trademark to ensure differentiation in a competitive marketplace.
The case you quote has to do with a company not policing its trademark when it is used in business by other businesses.
Which is it? Do you have rights to exclude another user so long as you use the mark in commerce or can you lose those rights by not policing the mark. Your posts seem to imply both.
For the record, I never said that a comedian using a mark in a joke would constitute infringement. Infringement requires use in commerce that generates a liklihood of confusion as to the source of goods or services. I merely said that it could be construed as use in commerce, which would probably be enough to survive a motion for summary judgment and cause more trouble than it should as liklihood of confusion is a question of fact.
A copyright owner does have an obligation to police its rights in order to mitigate damages prior to suit and avoid limitation to statutory damages. I don't believe I ever suggested that a copyright could be forfeited by lack of enforcement. Avoiding forfeiture is not the only reason to enforce your rights.
That was Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). It should be read by anyone commenting on copyright and parody before posting as it is the seminal parody case currently controlling U.S. law.
We in the U.S. also have these lovely distinctions to be made between "public officials" "public figures" and "private individuals" that affect the standards a publisher must adhere to in order to avoid libel charges. Basically, in the case of a public official or public figure, all you have to do is not wantonly and willfully disregard the truth or falsity of what your publishing. Even if it isn't true but you had some reason to think it might be, you're probably ok.
First - a trademark can be lost through a process known as "genericide," which happens, among other ways, when a mark is not protected against uses other than those by the owner identifying a good or service sold in commerce. See The Murphy Door Bed Co., Inc. v. Interior Sleep Systems, Inc., 874 F.2d 95 (2d Cir. 1989) ("In finding a lack of genericness, the district court was influenced by Murphy's efforts at policing it's mark"). It is only when a mark has "entered the public domain beyond recall" that policing is of no consequence. See King Seely Thermos Co. v. Aladdin Indus., Inc., 321b F.2d 577, 579 (2d Cir. 1963). Second - It is using a trademark in commerce in such a way that creates a likelihood of confusion as to the source of goods or services that constitutes trademark infringement. 15 U.S.C. 1114. Because "commerce" has such a broad definition thanks to Congress and the courts wanting to include everything under the sun in the Commerce Clause power, telling a joke could constitute using a mark in commerce if, for example, it was told by a comedian at a performance for which he was receiving money. Third - Kimberly-Clark still holds a valid trademark on Kleenex because they have policed the mark. You will notice that they are never simply "Kleenex," but always "Kleenex brand facial tissue." Just like the old "You can't Xerox a Xerox on a Xerox but we don't mind at all if you copy a copy on a Xerox copier" ad. It's all about ensuring that the mark is associated with a particular source of a type of product and not the type of product in general. Fourth - If MasterCard and AmEx have registered trademarks, they need to assert trademark infringement as much as they would need to assert copyright infringement related to the style and structure of the ads. I think it highly unlikely that any copyright theory would succeed given the history of parody and fair use in the copyright jurisprudence. Given the Mattel v. MCA decision about that well known "German street walker" (er, Barbie) I doubt that a trademark claim would succeed either. That doesn't mean that neither of them should at least be brought to the attention of the potential infringer. Remember, fair use is an affirmative defense. When you plead fair use you are, in essense, saying, "yeah, I did infringe, but you can't hold me liable because what I did is protected." If your argument doesn't fly with the judge, you're going to be liable.
"Judicial activism" is a term that is frequently misused, usually for some political end. The way I understand it, judicial activism is for a judge to rule on a case with disregard for the commands of valid laws. Ruling a law to be invalid because it is preempted by a superior law is not activism, but an integral part of a judge's job.
I could be using IE on Linux, if I were feeling sick and twisted.
Not really. Security through isolation works in the case of a "nuclear weapon command centre" or other such system. In any environment where security is essential there will be additional steps taken to ensure that security regardless whether the system is built on open- or closed-source software. My point was that obscurity in such cases provides little or no marginal security advantage.
People are still buying from The SCO Group, aren't they?
The problem with your thinking is that you assume military applications would be opened. That's highly unlikely. Military applications may be built on an open source platform, but the code for a "nuclear weapon command centre" will remain closely guarded. And, as was mentioned earlier, terrorists don't need open source software to exploit security holes. Have you ever used Microsoft's Flight Simulator? How about Wilco's 767 Pilot-In-Command? There are two pieces of closed-source software that could have greatly facilitated the September 11, 2001 attacks.
Actually, they're both plausible. Apple undoubtedly has a right (and likely an obligation) to enforce the copyrights in the sound recordings and musical works it sells phonorecords and copies of through iTMS. Under 17 U.S.C. 1203(a) as a "person injured by a violation of section 1201" they have a right to "bring a civil action in an appropriate United States district court." And, under 17 U.S.C. 512(c) they have to send the nastygram to SourceForge in order to have any sort of club to wield to get SF to remove the project in an attempt to mitigate their damages.
As for Apple's "right" to limit what you can do with a phonorecord, the fair use doctrine is judicially developed, see e.g. Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) , and predates 17 U.S.C. 107 so it cannot easily be abridged by contracts attempting to arrogate rights not granted by 17 U.S.C. 106 or by the DMCA. As such, I'll violate the DMCA and unenforceable contract clauses as much as I want in exercising my fair use rights.
Damn, so you mean my CS BS and JD are going to be worthless by the time I'm done with law school?
The show codes feature is probably the only good think WP has going for it. It can be a lifesaver a times though. Much of the secretarial staff at the various law offices I've worked at refuse to use anything but WP for precisely that reason.
I'm sure if you ask really nicely they'll consider opening one of their projects for you.
Poor little Wanda the Fish, the GNOME fortune teller seems to be floating upside down in a rather putrid looking tank and tells me "The water needs changing! (look at today's date)"
Why? Because SCO is The Santa Cruz Operation, which The SCO Group most certainly is not.
I never said the original poster was right. I just said that the responder was wrong to assume that he was working for a law firm and that his comments constituted a troll for that reason. As you said, there are other reasons not to accept his comments.
That's what it sounds like at first blush. I'd be careful reading too much into that though. It could simply mean that they included a program licensed under the GPL in their UnixWare distribution. It would be nice though to see TSG put to the choice of distributing UnixWare under the GPL or doing a massive rewrite to extract everything they've misappropriated.
He never said he was with a law firm. He said he was an attorney with a medium sized company. I'm sure you've heard of such positions as, general counsel, inside counsel, etc.
TSG is suing IBM for copyright infringement, see their second amended complaint. IBM is most certainly right to think that this would strengthen their hand in the contract fight as well. If they can obtain a declaratory ruling to the effect that Linux does not infringe any TSG copyrights then TSG was completely without basis for terminating their contract (if they ever had one).