Response to: Anonymous Coward on Oct 16th, 2012 @ 8:22pm
Agree that sample size matters, but in your LG example, there's actually a risk of customer confusion. If LG stuck the Zenith label on every crappy television, then consumers would have a hard time distinguishing the Zeniths from the bad Zeniths, because they're all made by LG!
The argument is that absent such confusion, tarnishment doesn't matter. Consider obvious knockoff goods. Very often, the knockoffs don't diminish the value of the original but enhance demand for it. If your fake Rolex craps out and you know its fake, you don't blame Rolex. You might, though, say something like, "A real Rolex wouldn't have failed on me."
Re: Re: Re: I am sure there are lots we don't know about each other
Interestingly, Obamacare is bipartisan in a way. Its essential elements were invented as a Republican alternative to Hillarycare. Then the Democrats adopted it, and the Republicans screamed bloody murder.
In this day and age, trusting third parties to hold your data seems outrageously risky.
Depends on what you consider a risk. If you're worried about physical theft, hacking, or data loss, then storing data in the cloud is less risky than maintaining sole control of your data. For most people at least.
Moreover, if you're worried about the government or some organization (mis)using legal process, consider that the government can always go after you personally if it can't go after your data.
I'd love to see an end-user protection clause added to the patent act. Even if the routers were infringing, only the manufacturer should be liable. It's a bad sign when trolls start going after people who did nothing more than legally purchase a product from Best Buy.
The problem of copyright law is less acute than the problem of patent law, partly because copyright infringement is limited to deliberate copying; patent infringement does not require proof even that the infringer was aware of the patent that he was infringing.
I'm surprised you didn't point out this is exactly what an independent invention defense is supposed to fix.
The fair use claim probably hinges on the distinction between satire and parody. That is, it's usually okay to use a portion (or in some cases, all) of a creation work to criticize the original work. But it's not okay to use the work to criticize something else.
Here, Kristina Hill would argue that her photograph is not being copied to critique the artistic merits of her photo, but to go after something else entirely (politicians). On the other hand, PAUS could quite plausibly say they're also criticizing gay marriage, gay people, and Hill's complicity in the entire enterprise.
To me, that just highlights how ridiculous the satire / parody distinction is in fair use. Fair use is really about one thing -- does this use somehow serve as an economic substitute for the original? In this case, it clearly doesn't. While PAUS's ads are repugnant, this isn't why copyright was created.
I'm surprised you're less troubled by the misappropriation of likeness argument. This seems to me to be a clear misuse of the claim.
Misappropriation laws were not created to prevent people from being thrust into political debates. They were created to prevent false product endorsements. It's not a moral right, but an economic right similar to trademark. Here, there's no commercial product, and if there was, the couple clearly doesn't endorse it.
In addition, think of this in First Amendment terms. PAUS is not only attacking politicians -- it's also attacking Edwards and Privitere themselves, and saying that they're doing is wrong. Telling PAUS that it can't use a photo of Edwards and Privitere to criticize Edwards and Privitere is like telling Romney he can't use Obama's photo to attack Obama.
Of course, Edwards and Privitere have a greater privacy interest than Obama. But it's not against the law to talk about private people in public. Were it otherwise, kids would be sued for bad-mouthing each other on Facebook. And while this photo may have some private meaning for the couple, they can't very well claim a privacy interest in it if they post it on a public blog.
To be clear, I find PAUS's actions repugnant, but copyright issues aside, if Fred Phelps has the right to picket the funeral of a soldier, then PAUS clearly has a right to say, "We disapprove of Brian Edwards's and Thomas Privitere's act of love."
Certain questions of law in a patent infringement suit are usually left to a judge to decide -- e.g. claim construction, or what the language of a patent actually means.
That said, I believe the Federal Circuit has read the Seventh Amendment to guarantee a jury trial for patent infringement, insofar as there is a question of fact -- e.g. whether a product fits within the language of the patent as construed by the judge.
I really wish we'd add a clause to Section 107 saying to something to effect of: Any use which does not create a direct economic substitute for authorized copies is fair use. It'd make fair use a whole lot clearer.
Dajaz1 is a fairly clear cut example where due process has been violated. http://www.techdirt.com/blog/?company=dajaz1
The site was taken down for a year, without an opportunity to argue beforehand, and the DOJ never provided evidence nor filed charges. The claim was dismissed, but if a year's worth of censorship is considered acceptable, then something is rotten in the state of due process.
This is really more of a privacy issue than a copyright one though. If you breach a confidentiality agreement or trespass onto someone's property to take a photo, there are other legal remedies. There's no reason to screw around with fair use and copyright law to protect privacy.
This is less crazy than you think. It reminds me of the argument that anyone who leaves their WiFi unsecured is negligent and is therefore liable for any copyright infringement that happens over that network.
On the post: Why The Theory Of 'Tarnishment' Doesn't Make Sense For Trademark Law
Response to: Anonymous Coward on Oct 16th, 2012 @ 8:22pm
The argument is that absent such confusion, tarnishment doesn't matter. Consider obvious knockoff goods. Very often, the knockoffs don't diminish the value of the original but enhance demand for it. If your fake Rolex craps out and you know its fake, you don't blame Rolex. You might, though, say something like, "A real Rolex wouldn't have failed on me."
On the post: Amanda Palmer Unleashes The Voice Of The People About Health Insurance Via Twitter
Re: Re: Re: I am sure there are lots we don't know about each other
On the post: Chevron Subpoenas Google, Yahoo & Microsoft To Get Info On Email Accounts Going Back Years
Re: Re:
Depends on what you consider a risk. If you're worried about physical theft, hacking, or data loss, then storing data in the cloud is less risky than maintaining sole control of your data. For most people at least.
Moreover, if you're worried about the government or some organization (mis)using legal process, consider that the government can always go after you personally if it can't go after your data.
On the post: Cisco, Motorola, Netgear Team Up To Expose Wifi Patent Bully
End User Protection
On the post: Becker & Posner: Time To Minimize Patent & Copyright Law
Independent Invention
I'm surprised you didn't point out this is exactly what an independent invention defense is supposed to fix.
On the post: Gangnam Style Shows What Can Happen When You Don't Lean On Copyright
Re: Re: Re:
On the post: Gangnam Style Shows What Can Happen When You Don't Lean On Copyright
Re: Re: Uh... say what?
On the post: Gangnam Style Shows What Can Happen When You Don't Lean On Copyright
Re: Re:
On the post: Why It's Tempting, But Troubling, To Use Copyright As A Stand In For Moral Rights
Fair Use / Satire
Here, Kristina Hill would argue that her photograph is not being copied to critique the artistic merits of her photo, but to go after something else entirely (politicians). On the other hand, PAUS could quite plausibly say they're also criticizing gay marriage, gay people, and Hill's complicity in the entire enterprise.
To me, that just highlights how ridiculous the satire / parody distinction is in fair use. Fair use is really about one thing -- does this use somehow serve as an economic substitute for the original? In this case, it clearly doesn't. While PAUS's ads are repugnant, this isn't why copyright was created.
On the post: Why It's Tempting, But Troubling, To Use Copyright As A Stand In For Moral Rights
Re:
On the post: Why It's Tempting, But Troubling, To Use Copyright As A Stand In For Moral Rights
Likeness / First Amendment
Misappropriation laws were not created to prevent people from being thrust into political debates. They were created to prevent false product endorsements. It's not a moral right, but an economic right similar to trademark. Here, there's no commercial product, and if there was, the couple clearly doesn't endorse it.
In addition, think of this in First Amendment terms. PAUS is not only attacking politicians -- it's also attacking Edwards and Privitere themselves, and saying that they're doing is wrong. Telling PAUS that it can't use a photo of Edwards and Privitere to criticize Edwards and Privitere is like telling Romney he can't use Obama's photo to attack Obama.
Of course, Edwards and Privitere have a greater privacy interest than Obama. But it's not against the law to talk about private people in public. Were it otherwise, kids would be sued for bad-mouthing each other on Facebook. And while this photo may have some private meaning for the couple, they can't very well claim a privacy interest in it if they post it on a public blog.
To be clear, I find PAUS's actions repugnant, but copyright issues aside, if Fred Phelps has the right to picket the funeral of a soldier, then PAUS clearly has a right to say, "We disapprove of Brian Edwards's and Thomas Privitere's act of love."
On the post: Samsung/Apple Jury Foreman's Explanation For Verdict Shows He Doesn't Understand Prior Art
Re: Re:
That said, I believe the Federal Circuit has read the Seventh Amendment to guarantee a jury trial for patent infringement, insofar as there is a question of fact -- e.g. whether a product fits within the language of the patent as construed by the judge.
On the post: Where Do Teens Discover New Music? YouTube.
Re:
On the post: Questionable Fair Use Decision Allows Celebrities To Block Publication Of Newsworthy Photos
Economic Substitute
On the post: This T-Shirt Has Been Seized
Re:
The site was taken down for a year, without an opportunity to argue beforehand, and the DOJ never provided evidence nor filed charges. The claim was dismissed, but if a year's worth of censorship is considered acceptable, then something is rotten in the state of due process.
I wouldn't be surprised if MegaUpload is actually guilty, but that's another example where the feds have done a bang-up job procedurally. Also confirmed by court: http://abovethelaw.com/2012/04/megaupload-trial-may-never-happen-because-the-fbi-apparently-doesnt-u nderstand-extradition-rules/
On the post: Questionable Fair Use Decision Allows Celebrities To Block Publication Of Newsworthy Photos
Re: Depends...
On the post: Yes, Friends Can Share Your Facebook Profile With The Police
Re:
What about one person and his pet cat?
On the post: Germany Tells Facebook To Destroy Face Recognition Database
Re: Same point as before
On the post: Now NBC Execs Are Just Trolling: Claim They Regret Not Tape Delaying More Of The Olympics
Something rotten
On the post: If I Were The MPAA... How I Would Deal With My Car Break-In
Re: I like this game
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