Forget Wiretapping Laws, Now You Might Be Able To Use Copyright Law To Stop Anyone From Recording You Ever
from the this-is-not-what-copyright-is-about dept
There was a recent ruling in a copyright dispute between Swatch (the watchmakers) and Bloomberg that could have troubling implications concerning wiretapping issues. Effectively, it presents a blueprint for how to use copyright law to block otherwise perfectly legal recordings. At issue was that Swatch held an analysts call, as most public companies do regularly. It's pretty standard for various financial firms to push out transcripts of such calls and to report/analyze them. In this case, Bloomberg recorded the call and offered a transcript to its subscribers. Pretty standard stuff. But... here, Swatch claimed copyright on the call. Why? Because they also recorded it (via a partner company), and since that recording was "fixed," they could claim that it was covered by copyright, and then sued Bloomberg.This ruling was on a motion to dismiss from Bloomberg, which the judge rejected, claiming that Swatch properly established that it had a valid copyright in the recording. It also declined to rule on the fair use claim at this point, though one hopes that, at a later stage, the fair use argument gets a stronger hearing.
The real problem with this ruling is what it could mean when you think about the consequences. As Paul Alan Levy notes, this appears to expand copyright law "far beyond its intended scope." Think about it for a minute. It means that as long as you record yourself while doing something, you can stop anyone from (a) recording you or (b) quoting you, if they quote an amorphous "too much" of what you said in the recording. It's not hard to see scenarios where this is problematic.
Most obviously, at a press conference (which this Swatch call was quite like), a reporter, who pulls out his or her recorder, could be violating the copyright of whoever is holding the conference. Furthermore, if in the process of reporting on the conference, they quote too much of what was said... well, they could face copyright infringement claims.
But let's take it a step further. We just reported on the Massachusetts ruling that said that recording the police was legal. But... what if the police also recorded themselves... and then claimed copyright on that audio. According to this ruling, it's possible that the copyright would be considered legit, and then you'd have to go to court to argue the fair use claim.
That's clearly not what copyright law is intended for, but it's a very real implication of this ruling.
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Filed Under: copyright, recording, wiretapping
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Perhaps the judge needs to read that pesky Constitution again
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As Mike noted in the article, "He possibly could have held the copyright on the sound recording (though, even there, there's a question of whether or not the singer's have a stronger claim)."
If anyone actually challenged Lomax's claim to copyright ownership, I think he would probably lose.
Just because someone fills out a form and gets a copyright registration doesn't mean they actually own the copyright they claim to own.
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I'm not sure what is meant by "fixed", but it appears that one recording is "fixed", the other isn't, and that's what makes one copyrightable(?) over the other.
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Swatch should not be able to stop someone else's recording of the call. It's business discussion, not a play. It's objective, not creative and should not be able to be copyrighted.
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Copyright law would not stop the recording. Even under this very circumstance, nobody would stop Bloomberg from recording the call, it would only stop them from re-broadcasting it or republishing it as a transcript.
There is nothing here that would stop anyone from recording a call. Rather, it would stop them from integrally re distributing the content of the call without permission.
Chicken Little (tm) would be proud of you for this one Mike.
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But more importantly the point you chose to miss (as usual) is that copyright law was never intended for this purpose yet it's being abused in this way.
AC, comments like this make me pity you.
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recording + republishing = copyright violation.
recording + using as reference material to write story = have a nice day.
Chicken Little Mike would like you to think otherwise, but a quick read of the story can tell you otherwise.
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If I am having trouble with say my ISP. I call up their customer service and record the conversation myself. If after many repeated calls my problem is not addressed, one recourse is to post the recording or transcription online or use it in a small claims dispute.
If the ISP can claim copyright infringement on me when I post this online, that is blocking me from accessing one avenue of constitutionally protected redress.
This ruling is flat out stupid and anyone who supports it does not understand copyright law (even in its current screwed up state) nor do they understand Constitutional law.
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Are you intentionally conflating those two things?
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There are plenty of uses for a recording other than publishing the entire recording/transcript for profit (of course, the court hasn't even definitively stated that THAT use is prohibited).
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That you will never answer right chicken little?
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It wouldn't be any different from a Bloomberg stock analyst, standing in front of a room full of investors, teaching them how to invest. Let's say Bloomberg records it to sell online as PPV video, and one of the people attending pops up an HD camera, records the whole thing, and puts it for free on youtube - or worse, puts it on their subscription only investor blog.
Would Bloomberg have copyright? Damn right they would, and the video would get taken down from the blog.
E. Zachary Knight: The difference is night and day. The customer service person isn't giving a performance or a presentation (although some of them are good actors), you are involved in a one on one phone conversation. There is nothing in this ruling, nothing at all, that would suggest that (a) you could not record the call (with notification required in some places), and (b) publish that call as part of a blog, news article, or other.
Can you please show me where you are able to draw this conclusion?
For me, it's Mike taking a 1% decision, and then screaming that the sky is falling and is going to wipe out the other 99% of cases. It's just not there.
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If what you said is true than every message I recorded on my answering machine is copyrighted.
It also means, nobody will be ever allowed to record Steve Jobs presentations or any scientific or medical presentation ever without permission.
I want to see that hold up in court, ANY court!
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No, what you recording on your answering machine is copyrighted. It isn't anything. Why go there? It isn't even vaguely related to the story or my comments.
Nobody is saying people can't record things (except for Chicken Little Mike). The issue is the republication in it's entirety of a copyrighted work.
The ruling is only against a motion to dismiss, it isn't a legally binding ruling, just a response to a motion to dismiss.
It is really, amazing to watch you desperately trying to discredit my opinion, and failing massively, flailing around like a mad thing.
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If I have a recorded message in my answering machine that recorded message is a presentation according to you and I own the copyright to it right?
Because that is what the judge insinuated when he didn't dismissed outright this stupid lawsuit.
Furthermore you don't know that the recording has a copyright and you even agree with another guy in this same thread that explicit said that, but you keep saying that Bloomberg by making their own recording violated the copyright of something that certainly have no copyright protections at all, because if it had, my phone answering machine recording messages would all be copyrighted, but we all know that is just silly don't we chicken little?
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No. Simply recording someone else's words doesn't give you a copyright on those words, and the other AC never implied as much.
Try harder to understand, instead of putting so much effort into fighting.
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I believe every newspaper out there do this on a regular basis.
Is analogous to filming a football game, if I film it it is mine recording independently of who is playing on the field.
Just like every company has a right to claim copyrights on their version of things, it is a different version of the event.
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I'll wait.
Here's my support:
17 USC 201(a): "Initial Ownership. — Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work."
From http://www.copyright.gov/help/faq/faq-definitions.html:
"Who is an author?
Under the copyright law, the creator of the original expression in a work is its author."
Simply recording another's original expression does not make you an author, unless you've got some basis to claim your recording also includes your own original expression (even then, there are some tricky issues as to whether you can claim copyright in an unauthorized recording).
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Not that it isn't ridiculous, but thats the law.
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If you have any support whatsoever for your statement, I'd love to see it.
Even if you don't have support, I would love to know what motivates you to publicly post "that's the law." What makes you believe that "that's the law?"
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Used to be.
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So your crapoula about republication in it's entirely is just BS.
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Why the heck not?
"b) even in the event of some very dubious interpretation of the law make it so how can somebody claim copyright on the recordings of another?"
If someone else simply records your performance, you sure as heck have a copyright interest in that performance. If I got to the theater and record a movie, the movie studio does in fact have a copyright interest in my recording of their movie.
"So your crapoula about republication in it's entirely is just BS."
Because you say so? It's a legitimate point, and if you just gloss over that, it makes it obvious that you're not interested in a rationale, real-world interpretation of this case, but just want to follow Mike into a "the sky is falling" hysteria.
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I'll do my part:
If someone is recording you while you give your presentation, then, at that moment, it is being fixed in a tangible medium of expression.
They fact that they press "record" does not give them any copyright interest. The "author" of a work owns the copyright. To be an "author," you must contribute your own original authorship. The person who created the presentation is the one doing that.
The button-presser is irrelevant to a copyright ownership analysis.
I have, in fact, given presentations on copyright law that were simultaneously recorded, and it is my firm belief that either I or my employer at the time own the copyright on such presentations.
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Otherwise, they may have a copyright interest in their public presentations (assuming they actually created them or they own the copyright as a work made for hire).
But having a copyright does not mean you have absolute control over how your protected work is used.
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I don't think that's a fair characterization of motion to dismiss rulings
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http://video.foxnews.com/
I didn't watch all of them because Faux news is blocked here but all other news do have also infringing videos.
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Everything I say or do is a performance.
It wasn't a back and forth discussion between two people, it was a presentation.
The size of the audience doesn't matter in copyright law.
Can you please show me where you are able to draw this conclusion?
I just about to ask you the same thing about the requirement that there be three or more people present.
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That's the most absurd thing I have ever heard. In recording a call involving multiple parties, there was no explicit ownership of the conversation nor was there a unique and novel creation. Nothing here would even come close to meeting the requirements for a copyright any more than a conversation on the street.
This is absolutely a perfect example of everything wrong with these extensions of copyright law.
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Since Bloomberg admits to recording it and there is no law preventing anybody from filming a presentation. Is there such a law chicken little?
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Mike is trying to confuse you by focusing on the non-issue, which is recording. It isn't about recording.
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The copyright is being used to censor Bloomberg.
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You think the suit would have been filed based solely on a recording that Bloomberg never republished? I think that is unlikely.
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None of those things have anything to do with copyright ownership, which requires neither an explicit claim of ownership, nor uniqueness, nor novelty.
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"The question isn't the recording of the event, it is the republishing of it.
Mike is trying to confuse you by focusing on the non-issue, which is recording. It isn't about recording."
Once you stop looking at the magician's flash paper Mike ignited over the "recording" non-issue, it's easy to understand the rest. Until you stop looking at the flashy stuff, it's hard to get a grip on the whole story.
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Bzzzt. The day when copyright only applied to commercial use are long gone.
recording + republishing = copyright violation.
Commercial or otherwise.
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I'm sorry, let me get this straight. You're saying, "Big deal, they can still make the recording, they just can't use it in any way or let anybody listen to it or transcribe and print it. But they can still make the recording."
Is that about the gist of your post?
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What Bloomberg did was publish the entire call verbatim, which would go past the typical use of copyrighted material. It isn't any different from a movie review compared to just putting the full movie up.
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There I found more pirates, all that material is infringing according to your standards.
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What the heck are you guys smoking?
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Did they have permission from the person giving the show to do that?
Under your thinking a good chuck of those press releases are all infringing since I very much doubt that they got express permission to do any recording there.
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No, they can record it, and they can still use it - as an example to verify quotes or to run an excerpt as one might do while reporting on a story.
What Bloomberg did was publish the entire call verbatim, which would go past the typical use of copyrighted material. It isn't any different from a movie review compared to just putting the full movie up.
=====================
Actually, this makes sense. I think I misunderstood what happened here. If all they did was reproduce it but without the understanding from the creator that it would be aired in its entirety, I can see an issue. The way I took it was that they were reporting on it, not merely rebroadcasting, and that it was disputed that they should be allowed to use some of the original material to report.
The analogy is a good way to articulate it.
Thanks,
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I wonder which one of the site staff does these posts.
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Truly anonymous by the way LoL
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So, if I make a recording of a phone call, and someone else makes a recording of the same call, we now have two essentially identical, independently created works, both covered by copyright. How is it that the other copyright automatically overrides my copyright on my recording, and limits what I can do with my recording?
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Which is the whole point of the article, boy; the idea that it could be used to stop dissemination of the information.
How dense ARE you?
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The one that started
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To me, it makes him look like the only guy who (a) actually read the opinion, and/or (b) has a basic understanding of copyright law.
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Photos
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But this ruling has nothing to do with that.
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For example, if police are working a concert, they cannot simply record some of the music and therefore make it public domain.
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Separate copies
That's why the thing that prevents people from recording concerts is the fine-print agreement language (contract?) on the ticket, not copyright law.
B
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This was not a one on one interview, it was not a private conversation.
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Just because you press "record" does not mean that the author of the work being recorded does not have a copyright in the resulting recording.
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Simply recording something created by someone else does not make you an author of the resulting recording.
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It boggles the mind.
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It boggles the mind."
Thats easy! Because it's a creative work (right?) that NEEDS protection or else people wouldn't converse ever again if they cant be guaranteed a government protected way of profiting from it. Come on, it's SO easy!
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The judge needs to learn some tech
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Re: The judge needs to learn some tech
When a "work consist[s] of sounds ... that are being transmitted"-that is, when a work consists of sounds that are being "communicate[d] ... by [a] ... process whereby ... sounds are received beyond the place from which they are sent," id.-the work is considered fixed "ifa fixation of the work is being made simultaneously with its transmission." Id. This provision "creates a legal fiction that the simultaneous fixation occurs before the transmission" for purposes ofan infringement claim. United States v. Moghadam, 175 F.3d 1269, 1280-81 (II th Cir. 1999).
In other words, the law treats the unauthorized recording of sounds that are transmitted live and recorded simultaneously as an infringement of the copyright in the fixed work (assuming the work otherwise qualifies for protection), notwithstanding that the alleged infringer does not copy the fixed version ofthe work but rather records the live transmission directly.
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There is no such thing as simultaneous - action at a distance - see Einstein - Judge -FAIL
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The judge did not fail on this point. You did.
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I don't believe that. The standard of originality needed for copyright protection is very, very low. I'm sure this qualifies.
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I'm pretty sure that "promote the progress" was never intended for presentations like this. In fact I would argue they need no incentive for creation--they would exist whether copyright covered them or not because there are many other incentives for them to exist regardless of the form.
And I think we should all be very scared of the level of the bar you describe--if it is that low, Mike is very reasonable to be afraid of the implications.
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Here are some cases:
http://www.law.cornell.edu/copyright/cases/197_F3d_1256.htm (9th Circuit opinion discussing low bar for copyright protection and holding that published coin price estimates are protected by copyright).
http://floridalawfirm.com/iplaw/ccc2.html (2d Circuit opinion discussing low bar for copyright protection and holding that published car price estimates are protected by copyright).
http://digital-law-online.info/cases/44PQ2D1172.htm (10th Circuit opinion discussing originality requirement, and holding that portions of short codes were sufficiently original to warrant copyright protection, although they were ultimately unprotectable under the scenes a faire doctrine).
Now, if you're going to require an opinion that fits the exact fact pattern presented in this case...well...the opinion Mike embedded in his article ought to do the trick, no?
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Hold on... no more reporters?
Here's a quick solution for all of the news agencies - boycott anyone company that is so stupid as to think they control their public information. Just don't report. Refuse to run their adds. See their sales plummet.
I'm all for taking control of your life, but this is just ridiculous.
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How frigging hard is that to understand? I know why Techdirt is so popular, you guys really lack imaginations.
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Clearly it takes a high dose of imagination to twist reality this badly. I'm glad you aren't afraid to point that out to these freetards.
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It is hard to understand because the fundamental premise is faulty--that the call is even copyrightable to begin with.
"What they cannot do it [sic] publish a copyright work [sic] in its entirety."
Statement is irrelevant since what is being discussed is not a copyright work [sic].
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I believe there was a comment.
The entire chain of comments is based on the premise that the call is copyrightable, which is wrong to begin with. That's why others are struggling with anything you're saying.
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It is a literary work fixed in a tangible medium of expression that exhibits at least a modicum of originality.
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Sweat-of-the-brow is a rejected doctrine in the US.
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I also don't think most people would consider a quarterly report to fall under that definition either.
Modicum of originality BTW is not a bright-line test for copyright in the US.
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there is no requirement for "significant creative input." Rather, there need only be a modicum of creativity/originality. Of course, this is not a "bright line" that can be easily delineated, but the standard is extraordinarily low. As long as the claimed author can show he put some thought/effort/judgment into determining what he was going to say, the standard is met. I have thoroughly researched this numerous times, so if you want me to provide citations, I can, but I'd rather not spend the time right now.
Second, you are not looking at the right definition of "literary work." From the Copyright Act (17 USC 101):
"“Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied."
Under the standards indicated above, things such as car price guides, jewelry price guides, and many other such works have been given copyright protection.
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As I said above, I'm pretty sure this bastardizes "promote the progress"--companies need no limited monopoly to be convinced to conduct these calls and would do so whether copyright covered them or not.
Exactly what public/social good is being covered here (part of the original purpose for copyright)?
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Are you switching to another basis for your argument (oral v. non-oral)? The oral transmission was simultaneously recorded by Swatch, making it not just an oral communication.
Saying the law "shouldn't" cover this type of work is not the same as saying the law "doesn't" cover this type of work.
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I like being able to clarify issues for people, though I sometimes slip into an adversarial mode when people seem more interested in finding anything to criticize than actually listening/conversing/understanding.
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Lemonade
So, this means I can walk down the street, filming myself, and then turn around and sue all the entities with street-facing video cameras for copyright infrinement.
Winning!
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No no no no no!
This ruling was on a motion to dismiss! With a motion to dismiss, the judge looks at the pleadings, and says, "Assuming everything the plaintiff says is true, and assuming the plaintiff can prove everything they claim in their pleading, is there a case here?"
This is designed to prevent something from going to trial, with days of evidence and testimony, etc. and having the end product be: who cares, that's not actually illegal. So, I could file a suit claiming you've defamed my dog. On a motion to dismiss, you would say, "Judge: Assuming that I did say something terrible about this woman's dog, who cares? Insulting a dog is not a crime!" And you would win your motion to dismiss.
Here, there was a claim of copyright infringement, for which the plaintiff has to prove that there is a copyrighted work in question, that the plaintiff owns the copyright, and that the defendant copied it. The question on a motion to dismiss is if the plaintiff has ALLEGED all of these to be true. Swatch recorded a call. Swatch says there is a copyrighted work. Swatch says it owns the work. Swatch says Bloomberg copied it. Done and done.
Whether or not any of those things are true or can actually be proven is NOT something addressed in a motion to dismiss!
I, for one do not think this would survive a motion for summary judgement, where the question of ability to prove the allegations comes in. I don't think there is any way to prove copying here, because Bloomberg didn't record or copy Swatch's recording, just happened to make a recording of the same event. But that is a question for another day.
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Re: No no no no no!
Mike is getting funny. Now we have TorrentMike and ChickenLittleMike. Now if he can combine them, we can have a torrent of chicken (by his logic).
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Re: Re: No no no no no!
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Re: Re: Re: No no no no no!
Awesome to see the Techdirt staff hard at work.
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Re: Re: Re: Re: Re: No no no no no!
So which staff member are you, anyway? I am sort of betting on Marcus, not logged in. Your typing style is very similar.
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Re: Re: Re: Re: Re: Re: No no no no no!
Deflection = not addressing the content of the prior post. Rather than saying, I didn't deflect, distract, or denigrate because of x, you instead attacked the poster.
That is classic triple d's. Perhaps you operate with different definitions of those words?
I am not a staff member although you have accused me of that before. Tell you what, I'll reveal myself when you do.
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Re: Re: Re: Re: Re: Re: Re: No no no no no!
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Re: Re: Re: Re: Re: Re: No no no no no!
Plus he was missing during roll call this morning, when Mike hands out our pirating assignments. I'm with you. It's obviously Marcus who is logging in and commenting from behind the grassy node....
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Re: Re: Re: Re: Re: Re: No no no no no!
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Re: Re: No no no no no!
Better than you. Do you really have nothing more than name calling and misrepresentation?
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Re: Re: Re: No no no no no!
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Morons
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The ones who will be all over this - Athletic orgs
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Re: The ones who will be all over this - Athletic orgs
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Re: Re: Re: The ones who will be all over this - Athletic orgs
I think both the examples you give would be protectable by copyright.
I do not think an unauthorized recorder of such live performances would have a copyright interest in his/her unauthorized recording, for three reasons.
First, simply recording the event does not imbue the recording with any of the recorder's original expression. However, there could be a situation where the recorder's own expression is captured in the recording (I'm thinking of the Seinfeld episode where Jerry makes beautiful bootlegs of movies).
Second, 17 USC 103(a) says "protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully." Some courts have interpreted this as meaning you can't claim copyright in something that unlawfully incorporates someone else's copyright-protected material.
Third, 17 U.S.C. 101 says "A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission."
Thus, if you don't have the authority of the author, your unauthorized recording might not be considered "fixed" for copyright protection purposes.
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Hmmm
"Swatch claimed copyright on the call. Why? Because they also recorded it (via a partner company), and since that recording was "fixed," they could claim that it was covered by copyright, and then sued Bloomberg. "
The second argument was to suggest that Mike seems to think that no one would be able to quote the meeting because of this copyright. I seem to have read otherwise.. it appears to me Mike is suggesting that one could find themselves in a pinch for quoting to much, which is exactly what happened.
"Furthermore, if in the process of reporting on the conference, they quote too much of what was said... well, they could face copyright infringement claims."
Perhaps you shills should actually read the story before you start throwing out your bullshit. Of course the comments wouldn't be as interesting if you did....
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Re: Hmmm
Me: they didn't quote too much - they published the entire thing verbatim.
Think of it as the difference between a 30 second or 1 minute movie reviewer clip, and broadcasting the whole movie.
"quoting too much" isn't an issue here, unless you consider the full presenation to be a reasonable quote.
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Re: Re: Hmmm
He said you could get sued for just too much, and you keep saying the whole thing. I don't care how much they posted, apparently it was too much. Right?
"quoting too much" isn't an issue here, unless you consider the full presenation to be a reasonable quote."
Swatch is not suing because the transcript was passed out, they are suing because they are claiming a copyright on the recording itself. Their position is that Bloomberg had no right to record the call in the first place... did you read the fucking article?
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Re: Re: Re: Hmmm
Swatch is claiming copyright because they recorded, not "on the recording". They did what is required legally to have a copyright (fixed recording). What bloomberg did was record the call as well (totally legal, nothing changed here), and then use that recording to publish a verbatim transcript of the complete call. That is where they screwed up. Bloomberg as reporters could record the call for reference, but not for the purposes that they used it for.
If Bloomberg had asked to record the call for transcription purposes, they would have likely been declined that right.
If Bloomberg had not published a full transcript, there would be no issue.
Don't get confused. The recording isn't the issue - the use of it is.
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Re: Re: Re: Re: Hmmm
I disagree, and I am not confused.
a. "It means that as long as you record yourself while doing something, you can stop anyone from (a) recording you or (b) quoting you,"
The above is what Mike said. Now, after reading the links, I think that Mike is wrong in that that they can't sue over the actual recording, but they can sue over the distribution of the transcripts in their entirety.
I would think they would sue for breach of contract, not copyright anyway.
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Re: Re: Re: Re: Re: Hmmm
"Bloomberg as reporters could record the call for reference, but not for the purposes that they used it for."
a. "It means that as long as you record yourself while doing something, you can stop anyone from (a) recording you or (b) quoting you,"
The above is what Mike said. Now, after reading the links, I think that Mike is wrong in that that they can't sue over the actual recording, but they can sue over the distribution of the transcripts in their entirety.
I would think they would sue for breach of contract, not copyright anyway.
whoops.. screwed up the order of my quotes... maybe it makes since now...
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Totally bogus
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Re: Totally bogus
Why don't you just go ahead and find some legal support for that proposition. I'll wait.
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Not Actionable
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could this cover campaign events?
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I'm truly interested in the thought process that led you to that conclusion.
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criminals can get away with murder
How about a bill collector harassing you or breaking the law but recording it so you cannot file a complaint?
This is the type of thing that can get WAY out of control.
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Re: criminals can get away with murder
/sarcasm
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criminals can get away with murder
How about a bill collector harassing you or breaking the law but recording it so you cannot file a complaint?
This is the type of thing that can get WAY out of control.
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Legality of recording a conversation!
This decision is very troublesome in that it has the potential of making a recording made by a caller (customer) legally invalid because the called party (call center) announced that the call would be recorded and therefore established copyright of the recording of the conversation.
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Bloomberg did not copy Swatch's RECORDING.
Suppose 10 video journalists show up to record the President's speech, does the first to hit the send button on their recording invalidate the other 9?
No, because the other 9 did not copy the first videographer's RECORDING, they all recorded something from the free and open airwaves, available to all.
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Re: Bloomberg did not copy Swatch's RECORDING.
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Which line in THE "Copyright Act" (which Copyright Act?!?) applies?
And YOUR reading of the opinion and "the" Copyright Act in this situation is ...?
Do tell.
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Re: Which line in THE "Copyright Act" (which Copyright Act?!?) applies?
Also, why is "the" in quotation marks? The opinion does not indicate any dispute as to what act applies to this case (although I suppose you could raise the issue since the call originated from Switzerland).
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Bloomberg are thieving sleazebags
From the ODMD order denying motion to dismiss (all "quotes" below are from the ODMD): "... An operator informed participants at the beginning of the call that the call would be recorded, and she stated expressly that the call should not otherwise be recorded for publication or broadcast ..."
"... should ..." is NOT prohibition of either recording, nor re-publication nor broadcast, and especially not a prohibition against making a subsequent new art: a written transcript, sort of like a 2-dimensional photograph of 3-dimensional sculpture.
"... The Certificate of Registration expressly acknowledges that "... no claim of authorship is made to the performance of speakers not employees for hire of' Swatch Group or Management Services ..."
Swatch cannot legally make that claim for Bloomberg since the non-employees -- Bloomberg and others -- are not signatories to the copyright claim, in fact, it's a round-about admission by Swatch that they copyrighted something they did not own and do not have the rights to -- Bloomberg's original "art" in Bloomberg's participation, further subverting Swatch's claim that Bloomberg's recording was "unauthorized" -- since Bloomberg was a contributing artist, Swatch has no superior authority to prohibit recording nor copyright any non-Swatch contributions by others.
From a Copyright statue quoted in the legal piece: "... As a general matter, under federal law, "... copyright in a work ... vests initially in the author or authors of the work." 17 U.S.c. § 201(a) ..."
Since Swatch admits they are not the author of at least some contributions to the work, they have compromised their own standing in this case.
From a Copyright statute quoted in the legal piece: "... not including the sounds accompanying a motion picture or other audiovisual work ..."
Was it an audio+VIDEO conference call? If so, then all bets are off, and Swatch's claims have no statutory support.
"... the work is considered fixed "if a fixation of the work is being made simultaneously with its transmission ..."
Yet, since Bloomberg's contribution (and presumably other non-Swatch participants) were participating LIVE, their contribution cannot be considered part of Swatch's "fixation" of a remote transmission -- for Bloomberg, it was local.
"... It is as if one who was dictating live into a tape recorder were overheard and copied at the moment of dictation. At that moment, the material has become a 'writing,' even if copied simultaneously, rather than a moment later ..."
Except Bloomberg recorded THEMSELVES ... LOCAL ... LIVE!
"... Original, as the term is used in copyright, means only that the work was independently created by the author ..."
Need I repeat -- Swatch did NOT create the entire work, Bloomberg and others were participants.
"... Bloomberg accessed the call surreptitiously and without authorization or consent ..."
Huh?
Wait a minute!
Eavesdropping, with NO participation in the contents of the broadcast "call" from Bloomberg?
Seriously?
Bloomberg are thieving sleazebags and deserve the book thrown at them (unless Bloomberg's transcript proves to be a new artwork not owned by Swatch, but really, the only way Bloomberg got to the transcript was surreptitiously without Swatch's permission or acknowledgement?!?)!
I now stand unconfused by the second layer of facts to which both parties appear to have stipulated.
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Re: Bloomberg are thieving sleazebags
That makes most of what you're arguing about irrelevant (the argument that the recording included some material that Bloomberg contributed, which appears to be speculation on your part to begin with).
"I now stand unconfused" I don't think this is true, but if it is, that makes one of us, since I'm having a hard time deciphering your post.
Also, for future reference, it's easier to have a conversation if you "reply" to the person you're conversing with, rather than starting a new post (although I often make this mistake when replying to the last comment in a thread).
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Bloomberg recorded a private broadcast to which they were not inveited
2 - So, on first blush, I thought Bloomberg was a participant along with Swatch in the event Bloomberg recorded, so I presumed some of the recorded content was theirs, and I wrote my initial arguments above in this thread based on that limited summation by Mike Masnick.
3 - But in subsequently reading the motion to dismiss, the judge identified that "... Bloomberg accessed the call surreptitiously and without authorization or consent ...", so I now see Mike as mis-assessing the case, and Bloomberg as the wiretapping sleazeball group they are.
4 - I reserve the right to time-shift and record for personal use anything available via the free public airwaves, thank you Sony Betamax case * (which does not apply to tapping into something NOT available over the free public airwaves).
* 1984! Ooo, see: http://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_City_Studios,_Inc.
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Re: Bloomberg recorded a private broadcast to which they were not inveited
However, I'd say that even if Bloomberg were invited to listen to the call (but not to record, republish, etc.), there would still be a potentially valid copyright claim for republishing the call in its entirety.
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