I noticed the story was closed to comments. Maybe if they had kept the comments open a little longer someone could have pointed out their error. But why should a mighty journalist care what mere readers think. We're just peons.
You're right. But Viacom's refusal to recognize this shows us how fair use will die. The major copyright players will simply ignore the fair use defense and act as if it doesn't exist. They'll get clearance for anything that remotely infringes copyright, because that's what they expect everyone to do for their copyrighted material.
Fair use will only be used by the little guys. And they'll only be able to use it as a defense at trial. But they won't get a trial because there is no way a little company or person could possibility financially survive litigation against a company the size of Viacom or Disney.
Because the concept of fair use will not be addressed by trial courts, it will not be addressed by appellate courts. In a few decades the concept of fair use will be considered antiquated, out of date, and out of step of (what will be considered) modern copyright law.
"Labels do much more than just "release" stuff, they promote."
You're right they promote. So could an agent. The difference is that an agent can only take 10% while the label takes everything.
"It's all the stuff that is done to get a band known"
You seem to be under the impression that labels sign complete unknowns. I'll admit, that occasionally it can happen. The success of Mariah Carey was created by a carefully designed and orchestrated media campaign which started before she even recorded one note for sale or performed a single concert.
However, that's rare. The vast majority of bands get signed after they've built up their own fan base. The band has to work and work to get those fans. The label takes over and (as I've said) you might get a hit. Even though he vast majority of bands that do get signed never have a hit.
And they when your time in the limelight is over the label loses interest and will not spend a dime promoting you because your advance is all used up. You can't sign to a different label because you're contractually bound to your first label who is under no obligation to release you.
At that time you might just wish you said no to that label. That you continued doing what you loved, creating music, playing music, and winning over fans through your hard work. Instead, the songs you've wrote and played are owned by some conglomerate and are used to sell toothpaste.
I'll say it gain, Brian Mazzaferri, if this is the dream you have, I wish you lots and lots of luck. That and a five cents will get you a nickel.
"A record deal is a "FREE!" between a band and the label."
Gee, thanks for proving my point. Back in the 60s and 70s you'd be right. In order to get popular to such a level you'd need a major label to get your music heard by the masses. With the internet you no longer need a label to do that.
"Would you really know who Facepalm Palmer was if the Dresden Dolls didn't have record releases and worldwide distribution?"
With the internet you can release your own "record" on Amazon and have immediate worldwide distribution. Once again, what purpose does having a label serve?
They'll need it. The vast majority of bands who are signed to major labels never have any hits so they end up in debt trying to pay back their advance.
Some of the luckier bands have hits, but it's rarely enough to recoup the advance and their follow-up releases rarely sell as well. Thus, they end up in debt trying to pay back their advance.
Some even luckier but fewer bands sell music over a long period of time. However, they still don't make any money from those sales. Roger McGuinn once said, "I never received a dime from the Byrds." And of course despite selling 11 gold records in a row, the band Grand Funk never saw a dime from those sales.
The only hope Brian Mazzaferri has is too win the lottery of music and become so established that he's able to sell music on his own label or work out amazing deals with his labels so he's able to actually keep some of the money he earns, e.g., U2, Beatles, and the Rolling Stones.
If Brian Mazzaferri seriously thinks his career will reach that level, he'll need all the fricken luck he can get.
Having an independent invention defense would not solve our patent problem, although I do agree that such a defense should exist.
Even with an independent invention defense, it would still be a fact question for the jury to determine whether the accused patent infringer invented the process/method/whatever independently. Thus there would still likely be a long drawn out and costly trial which the patent holder would use to force a settlement.
The standard has to be much higher and more strict in order to obtain a patent in the first place. Throwing out a bunch of random patents does not magically create innovation anymore than randomly banging keys on a keyboard will magically create music worth listening to.
But the patent office makes good money with its "you file it and we'll grant it" patent process and all of those patent attorneys make a great living fighting over our vague patent laws, so I won't hold my breath awaiting any changes.
Re: If true, then apparently Albert Einstein is wrong in The Court's eyes
Your attempt at making an analogy fails because you don't seem to understand our trial system at all.
All the facts the jury would need would be presented to them at trial. However, if some necessary fact was not presented, then the person who brought the case would lose, as he or she failed in his burden in proving his or her case based upon the evidence presented.
"what if a lawyer explains something improperly, you look it up and actually understand it?"
That's why we have an adversarial system. When one side screws up, the other side points it out.
"There are situations I can see on both sides of the equation, such as where it might be inappropriate to use tech to look up parts of the case..."
And that's exactly why we have centuries of law devoted to the admissibility of evidence. For example, there is a general rule against hearsay evidence. But there are exceptions to that rule because we realized it makes sense to admit it in certain circumstances.
"He was not propositioning a debate on whether allowing online research would fit perfectly into existing legal constructs..."
I never said that Mike was making such an argument. My argument was and is that we have centuries of law regarding the admissibility of evidence in place for a reason and it's simply asinine to throw it all away without a very good reason. Mike never provided that reason.
"I have noticed that lawyers often spend so much time learning and practicing the law that they seem to lose the ability to discuss it normatively."
"So, you'd rather a guilty person was released on a technicality?"
Yes. Emphatically yes. The entire premise our country's legal system is based upon the idea that no one is above the law. Not the police and not the prosecutor.
The police and the prosecutor have to prove their case within the confines of the United States Constitution. If they fail to do so by violating the defendant's constitutional rights, they lose and they should lose.
If the police and prosecutors are not limited by the Constitution then they would be free to do anything they wanted. That's exactly the system of government the founding fathers were attempting to avoid.
And the Supreme Court's strict ruling regarding the admissibility of scientific evidence in its infamous Daubert decision would be toast.
If some wacko juror thought that mental illness is "really" cased by thetans levels or some horrendous disease is "really" caused by fluoride in our water supply... under Mike's system such evidence would come in during deliberations. Any evidence could come in regardless of whether it's relevant, unfairly prejudicial, or even scientifically meaningful.
"The question is does this really make sense?... Jurors always make decisions based on their own history and experiences."
It's one thing for a juror to make a decision based upon his or her own history and experience. That's fine. No one is arguing against that. But you're not asking why a jury should not be allowed to research their own history and experience. You're asking why they should not be allowed to research facts which were never presented at trial.
This is one of your weaknesses Mike. You've never went to law school so you do not have a clue about the litany of rules of evidence and the centuries of case law interpreting those rules. It is a prosecutor's burden to prove his or her case through the evidence presented, not through inadmissible heresy or via "story" published in a muckraking newspaper.
"Are you going to go spank that naughty judge who called it stealing? Are you going to insult Trent Reznor who called it stealing?"
Saying something does not make it true. A billion people could say that the earth was flat, but that does not make it flat.
You have something you are not suppose to have, you have paid for, and shouldn't have in your possession. How did you get it? "Oh, it just materialized." No, really, you obtained it illegally, right? Grandma would call it stealing.
As I've already explained today, theft and infringement are two completely different concepts.
When you steal physical property, the owner of the physical property is unable to use, sell, or lease the property.
Physical property is an inherent property right, not given by government but protected by government. It's one of those unalienable rights you've read about in civics.
When you infringe copyrights, you're interfering with a government granted monopoly. The copyright holder still has the song, movie, or book, he can still sell the book, he can still use the book, and he can lease out the book. He is not deprived at all, other than in a possible lost sale. But as I've stated before, hearing a song on the radio and not liking it and deciding not to buy it also leads to a lost sale. But that's not illegal.
Copyrights and patents are not inherent and unalienable. They are monopolies created by and given by the government. Because they were created by government fiat and are not unalienable, the government can do with them what they wish.
On the post: CBC Gets Two Stories About George Lucas Totally Mixed Up
On the post: Comedian Has To Retell Joke 2nd Time, Because Viacom Couldn't Have Him Sing Four Words: 'We Are The World'
Re: Re: Re:
On the post: Comedian Has To Retell Joke 2nd Time, Because Viacom Couldn't Have Him Sing Four Words: 'We Are The World'
Re:
Fair use will only be used by the little guys. And they'll only be able to use it as a defense at trial. But they won't get a trial because there is no way a little company or person could possibility financially survive litigation against a company the size of Viacom or Disney.
Because the concept of fair use will not be addressed by trial courts, it will not be addressed by appellate courts. In a few decades the concept of fair use will be considered antiquated, out of date, and out of step of (what will be considered) modern copyright law.
On the post: Comedian Has To Retell Joke 2nd Time, Because Viacom Couldn't Have Him Sing Four Words: 'We Are The World'
On the post: The New Middleclass Musicians: I Fight Dragons
Re: Re: Re: Re:
You're right they promote. So could an agent. The difference is that an agent can only take 10% while the label takes everything.
"It's all the stuff that is done to get a band known"
You seem to be under the impression that labels sign complete unknowns. I'll admit, that occasionally it can happen. The success of Mariah Carey was created by a carefully designed and orchestrated media campaign which started before she even recorded one note for sale or performed a single concert.
However, that's rare. The vast majority of bands get signed after they've built up their own fan base. The band has to work and work to get those fans. The label takes over and (as I've said) you might get a hit. Even though he vast majority of bands that do get signed never have a hit.
And they when your time in the limelight is over the label loses interest and will not spend a dime promoting you because your advance is all used up. You can't sign to a different label because you're contractually bound to your first label who is under no obligation to release you.
At that time you might just wish you said no to that label. That you continued doing what you loved, creating music, playing music, and winning over fans through your hard work. Instead, the songs you've wrote and played are owned by some conglomerate and are used to sell toothpaste.
I'll say it gain, Brian Mazzaferri, if this is the dream you have, I wish you lots and lots of luck. That and a five cents will get you a nickel.
On the post: The New Middleclass Musicians: I Fight Dragons
Re: Re:
Gee, thanks for proving my point. Back in the 60s and 70s you'd be right. In order to get popular to such a level you'd need a major label to get your music heard by the masses. With the internet you no longer need a label to do that.
"Would you really know who Facepalm Palmer was if the Dresden Dolls didn't have record releases and worldwide distribution?"
With the internet you can release your own "record" on Amazon and have immediate worldwide distribution. Once again, what purpose does having a label serve?
On the post: The New Middleclass Musicians: I Fight Dragons
They'll need it. The vast majority of bands who are signed to major labels never have any hits so they end up in debt trying to pay back their advance.
Some of the luckier bands have hits, but it's rarely enough to recoup the advance and their follow-up releases rarely sell as well. Thus, they end up in debt trying to pay back their advance.
Some even luckier but fewer bands sell music over a long period of time. However, they still don't make any money from those sales. Roger McGuinn once said, "I never received a dime from the Byrds." And of course despite selling 11 gold records in a row, the band Grand Funk never saw a dime from those sales.
The only hope Brian Mazzaferri has is too win the lottery of music and become so established that he's able to sell music on his own label or work out amazing deals with his labels so he's able to actually keep some of the money he earns, e.g., U2, Beatles, and the Rolling Stones.
If Brian Mazzaferri seriously thinks his career will reach that level, he'll need all the fricken luck he can get.
On the post: The Economist Notices That The Patent System Is Hindering Innovation And Needs To Be Fixed
Even with an independent invention defense, it would still be a fact question for the jury to determine whether the accused patent infringer invented the process/method/whatever independently. Thus there would still likely be a long drawn out and costly trial which the patent holder would use to force a settlement.
The standard has to be much higher and more strict in order to obtain a patent in the first place. Throwing out a bunch of random patents does not magically create innovation anymore than randomly banging keys on a keyboard will magically create music worth listening to.
But the patent office makes good money with its "you file it and we'll grant it" patent process and all of those patent attorneys make a great living fighting over our vague patent laws, so I won't hold my breath awaiting any changes.
On the post: Why Shouldn't Jurors Be Able To Use Technology To Do More Research?
Re: If true, then apparently Albert Einstein is wrong in The Court's eyes
All the facts the jury would need would be presented to them at trial. However, if some necessary fact was not presented, then the person who brought the case would lose, as he or she failed in his burden in proving his or her case based upon the evidence presented.
On the post: Why Shouldn't Jurors Be Able To Use Technology To Do More Research?
Re: yeah, my thoughts too
That's why we have an adversarial system. When one side screws up, the other side points it out.
"There are situations I can see on both sides of the equation, such as where it might be inappropriate to use tech to look up parts of the case..."
And that's exactly why we have centuries of law devoted to the admissibility of evidence. For example, there is a general rule against hearsay evidence. But there are exceptions to that rule because we realized it makes sense to admit it in certain circumstances.
On the post: Why Shouldn't Jurors Be Able To Use Technology To Do More Research?
Re: Re:
I never said that Mike was making such an argument. My argument was and is that we have centuries of law regarding the admissibility of evidence in place for a reason and it's simply asinine to throw it all away without a very good reason. Mike never provided that reason.
"I have noticed that lawyers often spend so much time learning and practicing the law that they seem to lose the ability to discuss it normatively."
Bashing lawyers. Wow, you're really creatively aren't you?
On the post: Why Shouldn't Jurors Be Able To Use Technology To Do More Research?
Re: Re: Just plain wrong
Yes. Emphatically yes. The entire premise our country's legal system is based upon the idea that no one is above the law. Not the police and not the prosecutor.
The police and the prosecutor have to prove their case within the confines of the United States Constitution. If they fail to do so by violating the defendant's constitutional rights, they lose and they should lose.
If the police and prosecutors are not limited by the Constitution then they would be free to do anything they wanted. That's exactly the system of government the founding fathers were attempting to avoid.
On the post: Why Shouldn't Jurors Be Able To Use Technology To Do More Research?
Re: Just plain wrong
If some wacko juror thought that mental illness is "really" cased by thetans levels or some horrendous disease is "really" caused by fluoride in our water supply... under Mike's system such evidence would come in during deliberations. Any evidence could come in regardless of whether it's relevant, unfairly prejudicial, or even scientifically meaningful.
On the post: Why Shouldn't Jurors Be Able To Use Technology To Do More Research?
Re: Re: Evidence admissibility
OMFG, the Anti-Mike and I completely agree on something!
On the post: Why Shouldn't Jurors Be Able To Use Technology To Do More Research?
It's one thing for a juror to make a decision based upon his or her own history and experience. That's fine. No one is arguing against that. But you're not asking why a jury should not be allowed to research their own history and experience. You're asking why they should not be allowed to research facts which were never presented at trial.
This is one of your weaknesses Mike. You've never went to law school so you do not have a clue about the litany of rules of evidence and the centuries of case law interpreting those rules. It is a prosecutor's burden to prove his or her case through the evidence presented, not through inadmissible heresy or via "story" published in a muckraking newspaper.
On the post: No, Copyright Has Never Been About Protecting Labor
Re: Re:
Actually it did not. Originally music and plays were not protected, only useful/pragmatic things such as maps and science-type stuff.
On the post: No, Copyright Has Never Been About Protecting Labor
Re: Re: Re: Re:
Well, Mike's ideas about copyright are basically square on with the law and how most courts interpret the law. This post was a great example.
Sonny Bunch argued the infringement is stealing. Mike pointed out a US Supreme Court case that held it is not.
Sonny Bunch argued that authors deserve to be paid based solely on the sweat of their brows. Mike pointed to case law that said that's not true.
On the post: No, Copyright Has Never Been About Protecting Labor
Re: Re:
On the post: No, Copyright Has Never Been About Protecting Labor
Re: Re:
On the post: No, Copyright Has Never Been About Protecting Labor
Re:
Saying something does not make it true. A billion people could say that the earth was flat, but that does not make it flat.
You have something you are not suppose to have, you have paid for, and shouldn't have in your possession. How did you get it? "Oh, it just materialized." No, really, you obtained it illegally, right? Grandma would call it stealing.
As I've already explained today, theft and infringement are two completely different concepts.
When you steal physical property, the owner of the physical property is unable to use, sell, or lease the property.
Physical property is an inherent property right, not given by government but protected by government. It's one of those unalienable rights you've read about in civics.
When you infringe copyrights, you're interfering with a government granted monopoly. The copyright holder still has the song, movie, or book, he can still sell the book, he can still use the book, and he can lease out the book. He is not deprived at all, other than in a possible lost sale. But as I've stated before, hearing a song on the radio and not liking it and deciding not to buy it also leads to a lost sale. But that's not illegal.
Copyrights and patents are not inherent and unalienable. They are monopolies created by and given by the government. Because they were created by government fiat and are not unalienable, the government can do with them what they wish.
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