Clearly you have little understanding of copyright law
Pardon the ad hominem title, but consider me miffed that you jump to conclusions on my knowledge of these topics and fail to look more deeply at my own work. (And consider your own ad hominem attacks on me.)
I have a good deal of understanding when it comes to modern copyright law. I've taken photography courses and worked on a number of my own photography projects. I've developed my own film—which is as much of a composition process as the taking of a photo—and I have worked on my aperture, shutter speed, and film speed settings to get desired effects.
I have also worked with electronic manipulation of images—changing the color balance, manipulating backgrounds, smoothing out portions of an image, and more.
As I wrote in my post, I have great respect for the effort and creativity that goes into the composition of a great photo. Effort and creativity alone, however, are not the basis for copyright protection. Effort, frankly, has no bearing on copyright protection. Creativity only goes to whether a work has the minimum level of originality to be copyrightable. And, as I wrote, photographs do deserve copyright protection. (There are many who still argue they do not.)
Photographs, however, deserve thin copyright protection. The reason is that it is near impossible to separate the copyrightable elements of a photograph from the underlying facts mechanically represented by the photo. (And just because the image is stored digitally does not mean it is no longer a mechanical representation of fact—there was still a mechanical process in creating the image.)
This thin copyright should extend to digitally edited photographs for these same reasons. Otherwise the same tortured attempts to separate expression from fact occur. Where would you draw the line?
Take the photo of a girl sitting on a wall with a fall landscape in the background. Should you or I be prevented from taking a photo of our sisters, wives, or mothers while sitting on a wall with a similar fall background? What if we happen to be at that same wall—are photos of girls on the wall reserved only for the first person to take a photo of a girl on the wall?
But, say, we touch it up digitally. We change the color balance and really make the fall colors pop out while the colors of the foreground—wall, girl, etc—become more muted. Brilliant—but what are the copyrightable elements? The bright fall colors in a background with muted foreground colors? The juxtaposed feeling of a lively fall background—fall being a period of decline—versus the foreground of the youthful girl? Can I no longer highlight the colors in a foreground versus a background?
More to the point, does the work done in editing this photo convert the non-copyrightable elements of the photo—the facts mechanically represented in it—or the thin-copyrightable elements—the photo as a whole—into something deserving of thicker copyright protection? While you might not agree that all photos of girls sitting on walls should be barred when I simply snap a photo of one, do you now change your mind since I've edited it digitally? What about just those that get edited digitally to highlight background colors versus foreground colors?
If you think this kind of analysis and these questions are ridiculous, then I'd say I agree.
But this is exactly the same kind of questions and the same analyses courts undertake. And it is ridiculous. That is the point of my post—photographs do deserve copyright protections, but there should be a bright line rule that they receive thin copyright protections versus thick copyright protections. This would cut down on these types of tortured analysis.
Moreover, this doesn't mean photographs aren't expressive, are not creative, and are not original. No, they clearly are. Great photographs are works of art, and I do not dispute that.
But we already have a similar type of bright line rule when it comes to sound recordings. They receive thin copyright protection, despite being works of art themselves.
And if you're willing to argue that sound recordings do not have the same creative capacity as photographs, then I would argue that your understanding of what goes into sound recordings is woefully inadequate to make such a judgment. Creating a great sound recordings take quite a bit of skill, creativity, and work—as does creating a great photograph.
Finally, you say true photography is like writing. I would agree. However, the writing it most closely resembles is news writing. A great news writing chooses his words carefully in an attempt to portray the facts of a situation. Nevertheless, news copy deserves (and receives) thin copyright because it is a representation of facts. (Similarly so, non-fiction books receive thin copyright—see Dan Brown's case involving his book, The Da Vinci Code, and The Holy Blood, and the Holy Grail.)
But if you take only one thing away from this Andy J, please take this: Skill and Labor have no bearing on whether something can be copyrighted. Copyright is reserved for works of original expression. This is a low bar—the only thing that must be shown is a minimum of creativity. However, all the skill and labor in the world exercised on non-copyrightable elements—facts and ideas—cannot convert them into a copyrightable element.
It reminds me of the situation with Stonehenge a while back. The folks behind the maintenance of the Stonehenge monument declared a copyright in all photos of Stonehenge. This was wrong.
However, they may potentially restrict the right to take pictures inside the Stonehenge enclosure they manage subject to the photographer either paying the Stonehenge folks so the photos can be used commercially or promising not to use the photos commercially.
This would not apply to any of the photos taken outside of the enclosure, however.
Here, you have sporting events. The WIAA has the ability to control access to these events through license. (Through the organization's charter, thereby subjecting member schools to its rules and regulations.) The license may subject someone to restrictions on filming the event.
This is no different than what you see at other sporting events, such as college or pro football. In fact, much of the conference fighting in college football right now (with Texas A&M threatening to leave the Big 12 for the SEC) comes down to who has control over the sale of TV rights. (The Big 12 has allowed the University of Texas to create it's own "Longhorn Network," thus getting TV revenue directly from distributors rather than through a conference-wide Big 12 deal.)
There are also fights over this in pro sports. Dallas Cowboys owner Jerry Jones has constantly sought to broaden his ability to market his team's rights—TV, merchandise, etc—himself, rather than through league-wide contracts. He also seeks to avoid revenue sharing of the income he makes through these sales.
So what do these agreements generally look like? First, they are based on the standard property right of license.
A license grants someone the ability to enter property. When you go to the theater, or a restaurant, or a store, you are there by license. These licenses can be implied or explicit.
Licenses allow property owners to set conditions for admission. They can demand you leave cameras outside, for example. They can demand that, prior to entry, you sign away any copyrights to photos or videos you take with your cameras.
Once this initial step is taken, then copyright can come into play. If you've waived your right to the copyright on photos or videos you've taken, then you're violating copyright when you distribute them without the permission of the property owner (who now owns the copyright).
The real question in the WIAA example is whether this is good public policy. Should the WIAA or the individual schools/communities have the right to establish broadcasting rights? Further, because this is a quasi-governmental organization, does the WIAA have a right under the WIAA to operate in this manner?
The copyright and property questions, however, are clear as day.
And, to that point, the fair use analysis is the same under this situation as it would be for other works. A random fan who took a grainy video on his camera phone will have stronger fair use exception arguments than a Gannet staffer who snuck in a quality camera with the intent to video the event for later streaming.
So there you go, too much information and TL;DR. Forgive my lack of brevity; I didn't have more time to write a shorter post. (And I have a sinus infection headache which is making me a bit spacey.)
Re: "Coca-Cola" is a registered trademark of the "COCA-COLA COMPANY",
A physical good can not be trademarked. Physical objects can, but that is different. For example, packaging can be trademarked. A Coca-Cola bottle design is indeed trademarked because it operates as a source identifier for the good being sold—with Coke, it would be the soda.
On top of that, trademark protects against the use in commerce of the mark by another. Referring to Blue Cross doctors in a study is not using the term in commerce. This is so even if the study is being sold.
The reason is that the 'use in commerce' requirement is a use wherein the trademark is being used to identify a good or service being offered for sale. In the study example provided here, Blue Cross is not being used to identify a good or service being offered for sale, but rather it is being used to identify doctors that are part of the Blue Cross network.
Vanna White sued over a robot in a commercial who performed a job similar to hers in a spoof of a gameshow similar to wheel of fortune.
And she won.
I have to say, watching the commercial, I could see the Kardashian look. There is definitely homage to the fashion scene and culture scene Kardashian moves in.
You'd have to add more to it. For example, someone mentioned 312 Urban Wheat. You might be able to trademark that—but that may still be problematic from a geographical mark standpoint.
And yes, I'd argue area codes would be geographically descriptive.
The biggest problem here is that Suk and Hemphill do not do a good job of citing and references Scafidi's work. You can agree with someone and use their ideas, but you have to cite to them.
What boggles my mind is that no one at Stanford Law Review found Scafidi's work and the need to add more citations to it. That's a black mark on Stanford Law Review.
Re: Re: Re: Re: Hacking does not require a copyright factor
Basically, JSTOR 's terms of use might create the 'something of value' element the government needs. If JSTOR typically provides the articles for a subscription, and people agree to abide by terms of use in using that subscription, violating the terms of use might lead to an analysis that the retrieved documents, in the way they were retrieved, amounted to Aaron acquiring something of value. More over, if the way he retrieved it was using methods intended to trick the JSTOR system into thinking his access was under the terms of the use agreement, yet it was not, this could potentially meet the fraud element.
It is tenuous, but it depends on the terms of use agreement.
Seriously, I'd take a DOJ job. Who do they have writing their pleadings? Interns? (I'd say yes, but I've seen too many Assistant US Attorneys dressed down by judges, in open court, for being incompetent to believe their actualy lawyers couldn't write so badly.)
You can sign away rights through a contract. However, a contract cannot be for illegal purposes. Therefore, I can't have a gambling contract with you in a state where gambling is not allowed.
Generally speaking, breaking a licensing agreement is a civil matter. However, if breaking that licensing agreement leads to unauthorized access and use of a computer system in violation of the Computer Fraud and Abuse Act, then it may lead to criminal liability.
So, while the commenter you have responded to is wrong, they are not categorically wrong. You're comment, however, is wrong.
Re: Re: Hacking does not require a copyright factor
The Computer Fraud and Abuse Act allows for charges where someone has harmed a computer or computer network or caused it damage. This includes overloading a network such that it cannot function properly. This is allegedly what Aaron has done, so the CFA charges are the most serious.
The wire fraud is more tenuous and will depend on interpretations of the JSTOR terms of use license for the purpose of downloading the information in question. It'll be a harder bit to prove, but it's also a dangerous charge. (And its common when there are fraud claims involving, well, wires like the phone or internet.)
The worst part, however, is that both affected parties (MIT and JSTOR) appear to have resolved the issues to their satisfaction with Aaron, but the US Attorney's still pursuing the matter. Don't we have more important crimes to go after?
The basic crux of the case is that Aaron accessed computer systems without authorization in violation of the Computer Fraud and Abuse Act of 1986. Based on the limited comments on the facts of the case so far it seems like a potential stretch—at least for a CIVIL CFA case—but the criminal side is a bit different.
On a side not about the CFA, it's the law that nailed the kid hacker in the oft-panned and highly unrealistic movie "Hackers." Aaron, Zero Cool, and Crash Override . . . all in the same boat.
Re: This is about the Computer Fraud and Abuse Act
If you look at the indictment it references 18 U.S.C. § 1030, which is where the Computer Fraud and Abuse Act of 1986, as amended, is codified. (The other two are basic kitchen sink criminal charges; wire fraud is typically added in cases involving evidence of telecommunication/internet use, and forfeiture is a basic addon for most federal crimes).
The press releases from the US Attorney's office is couched in the language of the Computer Fraud and Abuse Act of 1986. I do a bit of an overview of the Act in a paper I wrote that you can find here: The Virtual Property Solution, http://ssrn.com/abstract=168800 (The CFA of 1986 discussion begins on page 21).
The use of the word theft to refer to Aaron's actions is simply because we misuse the word theft as it applies to non-property situations. (I also talk about this in the above paper and other papers I've written.)
So it's not about theft, it's about computer fraud and misuse. This is statutory and does not require elements of theft.
Re: Re: Re: Re: An image can be simultaneously protected by copyright and TM
Trademarks need not be registered to be valid. There are two types: registered and common law. (Plus a third, registration on the secondary register, but it operates like common law.)
But there are more reasons why Trademark is not an issue. See my comment on the difference between trademarks and copyright below (or above, if viewing non-threaded comments).
Re: An image can be simultaneously protected by copyright and TM
You're right, but copyright protection works in different ways than trademark protection. Disney has a trademark on the word Disney. However, I can write the word Disney all I want and it won't violate trademark.
If I start trying to sell something using Disney to identify my business or product, then I run into problems. This is because trademark protects source identification, it doesn't protect expression.
We need a few good test cases for going after attorneys fees
The DMCA has a remedy for folks who have to deal with false DMCA takedowns. It doesn't get used enough, I think. Damages plus attorney fees are nothing to sneeze at.
On the post: Photographs Are Mechanical Representations Of Facts, And Thus Should Have Only Thin Copyright Protection
Clearly you have little understanding of copyright law
I have a good deal of understanding when it comes to modern copyright law. I've taken photography courses and worked on a number of my own photography projects. I've developed my own film—which is as much of a composition process as the taking of a photo—and I have worked on my aperture, shutter speed, and film speed settings to get desired effects.
I have also worked with electronic manipulation of images—changing the color balance, manipulating backgrounds, smoothing out portions of an image, and more.
As I wrote in my post, I have great respect for the effort and creativity that goes into the composition of a great photo. Effort and creativity alone, however, are not the basis for copyright protection. Effort, frankly, has no bearing on copyright protection. Creativity only goes to whether a work has the minimum level of originality to be copyrightable. And, as I wrote, photographs do deserve copyright protection. (There are many who still argue they do not.)
Photographs, however, deserve thin copyright protection. The reason is that it is near impossible to separate the copyrightable elements of a photograph from the underlying facts mechanically represented by the photo. (And just because the image is stored digitally does not mean it is no longer a mechanical representation of fact—there was still a mechanical process in creating the image.)
This thin copyright should extend to digitally edited photographs for these same reasons. Otherwise the same tortured attempts to separate expression from fact occur. Where would you draw the line?
Take the photo of a girl sitting on a wall with a fall landscape in the background. Should you or I be prevented from taking a photo of our sisters, wives, or mothers while sitting on a wall with a similar fall background? What if we happen to be at that same wall—are photos of girls on the wall reserved only for the first person to take a photo of a girl on the wall?
But, say, we touch it up digitally. We change the color balance and really make the fall colors pop out while the colors of the foreground—wall, girl, etc—become more muted. Brilliant—but what are the copyrightable elements? The bright fall colors in a background with muted foreground colors? The juxtaposed feeling of a lively fall background—fall being a period of decline—versus the foreground of the youthful girl? Can I no longer highlight the colors in a foreground versus a background?
More to the point, does the work done in editing this photo convert the non-copyrightable elements of the photo—the facts mechanically represented in it—or the thin-copyrightable elements—the photo as a whole—into something deserving of thicker copyright protection? While you might not agree that all photos of girls sitting on walls should be barred when I simply snap a photo of one, do you now change your mind since I've edited it digitally? What about just those that get edited digitally to highlight background colors versus foreground colors?
If you think this kind of analysis and these questions are ridiculous, then I'd say I agree.
But this is exactly the same kind of questions and the same analyses courts undertake. And it is ridiculous. That is the point of my post—photographs do deserve copyright protections, but there should be a bright line rule that they receive thin copyright protections versus thick copyright protections. This would cut down on these types of tortured analysis.
Moreover, this doesn't mean photographs aren't expressive, are not creative, and are not original. No, they clearly are. Great photographs are works of art, and I do not dispute that.
But we already have a similar type of bright line rule when it comes to sound recordings. They receive thin copyright protection, despite being works of art themselves.
And if you're willing to argue that sound recordings do not have the same creative capacity as photographs, then I would argue that your understanding of what goes into sound recordings is woefully inadequate to make such a judgment. Creating a great sound recordings take quite a bit of skill, creativity, and work—as does creating a great photograph.
Finally, you say true photography is like writing. I would agree. However, the writing it most closely resembles is news writing. A great news writing chooses his words carefully in an attempt to portray the facts of a situation. Nevertheless, news copy deserves (and receives) thin copyright because it is a representation of facts. (Similarly so, non-fiction books receive thin copyright—see Dan Brown's case involving his book, The Da Vinci Code, and The Holy Blood, and the Holy Grail.)
But if you take only one thing away from this Andy J, please take this: Skill and Labor have no bearing on whether something can be copyrighted. Copyright is reserved for works of original expression. This is a low bar—the only thing that must be shown is a minimum of creativity. However, all the skill and labor in the world exercised on non-copyrightable elements—facts and ideas—cannot convert them into a copyrightable element.
On the post: Federal Court Invents A New Intellectual Property Right: The Money Makes It So Exclusive Right To Record
This is not an uncommon right
However, they may potentially restrict the right to take pictures inside the Stonehenge enclosure they manage subject to the photographer either paying the Stonehenge folks so the photos can be used commercially or promising not to use the photos commercially.
This would not apply to any of the photos taken outside of the enclosure, however.
Here, you have sporting events. The WIAA has the ability to control access to these events through license. (Through the organization's charter, thereby subjecting member schools to its rules and regulations.) The license may subject someone to restrictions on filming the event.
This is no different than what you see at other sporting events, such as college or pro football. In fact, much of the conference fighting in college football right now (with Texas A&M threatening to leave the Big 12 for the SEC) comes down to who has control over the sale of TV rights. (The Big 12 has allowed the University of Texas to create it's own "Longhorn Network," thus getting TV revenue directly from distributors rather than through a conference-wide Big 12 deal.)
There are also fights over this in pro sports. Dallas Cowboys owner Jerry Jones has constantly sought to broaden his ability to market his team's rights—TV, merchandise, etc—himself, rather than through league-wide contracts. He also seeks to avoid revenue sharing of the income he makes through these sales.
So what do these agreements generally look like? First, they are based on the standard property right of license.
A license grants someone the ability to enter property. When you go to the theater, or a restaurant, or a store, you are there by license. These licenses can be implied or explicit.
Licenses allow property owners to set conditions for admission. They can demand you leave cameras outside, for example. They can demand that, prior to entry, you sign away any copyrights to photos or videos you take with your cameras.
Once this initial step is taken, then copyright can come into play. If you've waived your right to the copyright on photos or videos you've taken, then you're violating copyright when you distribute them without the permission of the property owner (who now owns the copyright).
The real question in the WIAA example is whether this is good public policy. Should the WIAA or the individual schools/communities have the right to establish broadcasting rights? Further, because this is a quasi-governmental organization, does the WIAA have a right under the WIAA to operate in this manner?
The copyright and property questions, however, are clear as day.
And, to that point, the fair use analysis is the same under this situation as it would be for other works. A random fan who took a grainy video on his camera phone will have stronger fair use exception arguments than a Gannet staffer who snuck in a quality camera with the intent to video the event for later streaming.
So there you go, too much information and TL;DR. Forgive my lack of brevity; I didn't have more time to write a shorter post. (And I have a sinus infection headache which is making me a bit spacey.)
On the post: Blue Cross / Blue Shield Says Study Pointing Out Failures Of Its Doctors... Violates Its Trademark
Re: "Coca-Cola" is a registered trademark of the "COCA-COLA COMPANY",
On top of that, trademark protects against the use in commerce of the mark by another. Referring to Blue Cross doctors in a study is not using the term in commerce. This is so even if the study is being sold.
The reason is that the 'use in commerce' requirement is a use wherein the trademark is being used to identify a good or service being offered for sale. In the study example provided here, Blue Cross is not being used to identify a good or service being offered for sale, but rather it is being used to identify doctors that are part of the Blue Cross network.
I've touched on various aspects of trademark law on my blog through various posts in the Trademark tag here:
http://www.lextechnologiae.com/tag/trademark-2/
Or the Trademark category here:
http://www.lextechnologiae.com/category/trademark/
On the post: Kim Kardashian Sues Old Navy For Hiring Actress Who Looks Like Her
This will be an interesting case . . .
And she won.
I have to say, watching the commercial, I could see the Kardashian look. There is definitely homage to the fashion scene and culture scene Kardashian moves in.
Is that enough to give this case legs? I dunno.
On the post: Anheuser-Busch Trying To Trademark Area Codes For Local Beers
Geographic marks generally aren't allowable . . .
And yes, I'd argue area codes would be geographically descriptive.
On the post: Supporter Of Fashion Copyright Accused Of Plagiarizing Other Supporter Of Fashion Copyright
Wow.
What boggles my mind is that no one at Stanford Law Review found Scafidi's work and the need to add more citations to it. That's a black mark on Stanford Law Review.
On the post: You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright
Re: Re: Hacking does not require a copyright factor
People often equate unauthorized access with theft, yet nothing has been "taken."
Nina Paley's "Copying is not theft" video is my favorite explanation of why folks saying copying is theft are wrong: http://www.youtube.com/watch?v=IeTybKL1pM4
And, for the record, I wasn't saying you meant Copyright was necessary to the charges. Just trying to provide context.
On the post: You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright
Re: Re: Re: Re: Hacking does not require a copyright factor
It is tenuous, but it depends on the terms of use agreement.
On the post: You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright
Re: Re: Re: Re:
On the post: Justice Department Practicing Mix-And-Match, Sleight-Of-Hand Law In Seizure Case
The DOJ needs to hire better . . .
On the post: You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright
Re: Re:
Generally speaking, breaking a licensing agreement is a civil matter. However, if breaking that licensing agreement leads to unauthorized access and use of a computer system in violation of the Computer Fraud and Abuse Act, then it may lead to criminal liability.
So, while the commenter you have responded to is wrong, they are not categorically wrong. You're comment, however, is wrong.
On the post: You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright
Re: This is about the Computer Fraud and Abuse Act
The discussion begins on Page 21 and give a brief overview of the law.
On the post: You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright
Re: Re: Hacking does not require a copyright factor
The wire fraud is more tenuous and will depend on interpretations of the JSTOR terms of use license for the purpose of downloading the information in question. It'll be a harder bit to prove, but it's also a dangerous charge. (And its common when there are fraud claims involving, well, wires like the phone or internet.)
The worst part, however, is that both affected parties (MIT and JSTOR) appear to have resolved the issues to their satisfaction with Aaron, but the US Attorney's still pursuing the matter. Don't we have more important crimes to go after?
On the post: You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright
More TLDR followup
On a side not about the CFA, it's the law that nailed the kid hacker in the oft-panned and highly unrealistic movie "Hackers." Aaron, Zero Cool, and Crash Override . . . all in the same boat.
On the post: You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright
Re: This is about the Computer Fraud and Abuse Act
The original Techdirt story has the indictment in it here: http://www.techdirt.com/articles/20110719/13282015167/feds-charge-aaron-swartz-with-felony-hacking-d ownloading-ton-academic-research.shtml
A good person to comment on it would be Jennifer Granick—I want to recall she does more on the criminal side than other commentators.
On the post: You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright
This is about the Computer Fraud and Abuse Act
The use of the word theft to refer to Aaron's actions is simply because we misuse the word theft as it applies to non-property situations. (I also talk about this in the above paper and other papers I've written.)
So it's not about theft, it's about computer fraud and misuse. This is statutory and does not require elements of theft.
On the post: Lawyer Trying To Trademark Bitcoin Threatens Techdirt With Bogus DMCA Takedown
Re: Re: Re: Re: An image can be simultaneously protected by copyright and TM
But there are more reasons why Trademark is not an issue. See my comment on the difference between trademarks and copyright below (or above, if viewing non-threaded comments).
On the post: Lawyer Trying To Trademark Bitcoin Threatens Techdirt With Bogus DMCA Takedown
Re: An image can be simultaneously protected by copyright and TM
If I start trying to sell something using Disney to identify my business or product, then I run into problems. This is because trademark protects source identification, it doesn't protect expression.
I've written about the unique nature of trademark law as the consumer's IP law here: http://www.lextechnologiae.com/2010/11/07/the-consumers-ip-law-a-review-of-trademarks/
I've also written in-depth on the trademarking process in a TLDR post on the Bitcoin trademark issue here: http://www.lextechnologiae.com/2011/07/15/bitcoins-trademarks-and-a-roadmap-for-the-bitcoin-communit y/
On the post: Lawyer Trying To Trademark Bitcoin Threatens Techdirt With Bogus DMCA Takedown
We need a few good test cases for going after attorneys fees
On the post: Vague Law + Vindictive Law Enforcement? Hide Your Veggies!
Re:
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