Not quite. A public performance is when the performance is offered to any member of the public [or held in a place open to the public]. When you purchase the DVD, there is no performance occurring, merely a distribution of product. When you get home, you are the one rendering the performance, and in a place not open to the public. Hence, a private performance. When you operate an outfit like Zediva, Netflix, or any other streaming service, and you do business with any member of the public, the performances you stream are deemed to be "to the public," hence "public performances." Hopefully that clarifies what the court means when they say "to the public."
You're right, with only a name, there's no way anyone could find the corresponding software. Thank goodness we live in a world without web-based portals that allow us to locate things through word searches. Can you imagine the consequences of such a dangerous reality? If a crazy world like that ever comes to fruition, I certainly hope we take the next logical step of banning any and all discussion of things that companies don't like to ensure they are never upset by anything ever.
He's suggesting that the majority of defamation claims brought are intended to harass rather than achieve a judicial victory, and given that the main point of defamation suits is to clear one's name, the universal platform that is the Internet allows people to do so much more expeditiously than a court of law. Rather than contradict himself, Mike is suggesting that if we MUST have a defamation tort, it should at least be susceptible to anti-SLAPP sanctions in order to curb abuse.
I like how Facebook works, where you have a few seconds after hitting post on a comment to go back and change things if a form or content error jumps out at you immediately. But I guess the preview feature serves the same function here. I just need to get used to using it! (T'would be nice if the preview feature didn't require its own separate page, though; I like being able to see the conversation I'm responding to as I edit my comment.)
Re: So don't use slang! If doesn't say "pirate" or "bootleg", it's fine.
While lawyers can split hairs into a hundred pieces, these sites (Rapidshare, not MP3Tunes so much) wouldn't exist except for infringing.
Ah, the exacting legal standard of "wouldn't exist without," based on the bulletproof evidence of "trust me, you guys." Just a few weeks ago, one of my favorite bands [signed to a major label] released a new song as a treat to its fanbase via Mediafire, a "piracy haven" in the nomenclature of record labels. Just because a site has an infringing draw does not a rogue site make. The DMCA and case law are pretty clear about this.
It's always nice to see a judicial opinion reinforce common sense while not meandering too far from established norms. The labels were clearly overreaching on everything but the two issues they won on. Amazing how fiercely they can fight a battle when the clear text of statutory law and a mountain of precedent cuts against them. But hey, the more they cite things like "red flag" infringement when they're clearly inapposite, the smaller their judicial toolkit becomes.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: What copyright means
I would actually recommend reading the case anyway; it's one of the few times the Supreme Court has really taken up the essence of copyright in recent decades, and it provides a wonderful overview as to what copyright is -- its history, purposes, and many of its essential contours.
To be fair, I was using the verbage of the person I was responding to (btrussell), albeit sans quotes. I am very aware of the difference between theft and infringement [and how serious the Techdirt community is about calling out the conflation].
Re: Re: Re: Re: Re: Re: Re: Re: Re: What copyright means
When the Supreme Court decided the Feist case in the 1990s, they explicitly disavowed the "sweat of the brow" theory of copyright -- that is, the theory stating that information gathered through hard work was copyrightable due to the sheer labor involved. Just because years or centuries of inquiry are involved does not change the fact that the inquiry is work aimed at discovering something the discoverer does not create himself. Therefore, it is not within the scope of copyright. Incentives for such laborious research may be provided through other means, such as patents, but not copyright.
I think you would benefit from reading Learned Hand's abstraction test to better understand at what level of generality or specificity something becomes copyrightable. See Nichols v. Universal Pictures, Corp., 45 F.2d 119, 121 (2d Cir. 1930).
What isn't a product of nature? Things that owe their origin to man. Fire is a naturally occurring phenomenon, owing its origin to nature. Math is a natural concept discovered (not created) by man, and discoveries are not the purview of copyright [that would be patent law]. Copyright covers works of original authorship. Expressions of ideas fixed by man in a tangible medium of expression. Think about any work of creative fiction; the author created it using his mental processes to expand upon ideas and then document the results, a creative endeavor not owed to any external source under the structure of the law. That's what copyright protects; but not any underlying idea or concept within the work not owed to the author. Those elements may be freely copied with impunity.
An additional bright spot in the case: the defendant apparently tried using the recent LaChappelle ruling involving Rihanna (derided here on Techdirt) to support her case (see the footnote on page 7 of this case) and the court not only found the comparison inapposite, but were also "ultimately unpersuaded" by LaChappelle's analysis. So at least one judge is already looking at that case with skepticism. The idea/expression dichotomy may not be dead after all.
In your earlier comment, a shoot-out in a western is now a stock component of a certain class of film and not copyrightable, but the very first time WAS creative.
The scenario you've theorized seems plausible based on the single line of logic underpinning it [everything starts out creative -- but I would even quibble with that and call walking practical rather than creative]. But even granting your premise, there are always multiple limits on copyright law working simultaneously to prevent impractical outcomes.
Even if a western shootout [moving to my earlier example] was not yet common in films when utilized by a filmmaker, there are multiple other basic defenses for a subsequent filmmaker to use; anything from a shootout being a mere "idea" [the expression of which from the first film isn't copied] to it being a historical fact [shootouts frequently occurred in the wild west, so utilization of it is stock right out of the gate] to having come up with the idea of using a shootout independently of the first filmmaker.
The goal of copyright isn't to prevent wide use of any underlying concept, but to prevent slavish copying of an expression of that idea beyond utility. So without concrete examples of copyright preventing adoption of mere actions, I have to assume the built-in prevention measures are doing their jobs.
Let me clarify: no reasonable copyright authority would. This lawsuit was idiotic and the judge clearly treated it as such. And a wish does not equate to a realistic suggestion.
Haha, no worries -- it's nearly 4am here in the states, so I get to blame my mental lapses on insomnia.
You nailed it; copyright is absolutely replete with blurry lines, and when you brush up against them, 505 puts you in the danger zone. The case I dealt with was a summary judgment showdown between a screenwriter and a media company, mostly dealing with the level of similarity between their works necessary to proceed to trial. The screenwriter had around half a dozen cases helpful to analogize to, but the company had dozens of unhelpful ones (with analytical methods that often seem to clash with the methodology of the screenwriters' cases, none of which have been declared bad law). It came down to the judge buying the unhelpful analyses. The 505 award was the court both adding insult to injury and sending a message: good faith or not, no more bringing wishy-washy copyright claims against media companies.
I don't think the escrow/bond option will happen either, for reasons/pretensions of justice [pity the indigent pro se litigant with a golden case], progress [we want people pushing against the law to see how resilient it is], and simple mercenary economics [lawyers like being able to raise a ruckus with limited liability]. In the meantime, fee awards are the next best option, but as with all things equitable, some judges swing a little wild.
I can actually see people arguing that it is a copyright problem. If the goal of copyright is to promote the progress of science/useful arts, part of that progress depends on incentivizing not only the creation of works, but their wide dissemination. And one can make the argument that without territorial controls, there is less incentive to spread those works out as widely as possible. Not saying I buy it wholesale, but I also wouldn't say the debate it spawns doesn't fit into the copyright box.
On the post: MPAA So Thrilled With Zediva Ruling, It Offers To Help The Court Spread It
Re: Confusing...
On the post: Record Label Execs Suddenly Upset That False Copyright Claims Can Take Down Videos
On the post: RealNetworks Destroying Dutch Webmaster's Life Because He Linked To A Reverse Engineered Alternative
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On the post: Apparently You're Not An A-List Celebrity Unless You're Involved In Some Sort Of Bogus Defamation Lawsuit
Re: Early in the Morning
And that's how we learn to read, children!
On the post: Changing How We Handle Advertising And Sponsorships
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On the post: MP3Tunes Ruling Protects DMCA Safe Harbors
Re: So don't use slang! If doesn't say "pirate" or "bootleg", it's fine.
Ah, the exacting legal standard of "wouldn't exist without," based on the bulletproof evidence of "trust me, you guys." Just a few weeks ago, one of my favorite bands [signed to a major label] released a new song as a treat to its fanbase via Mediafire, a "piracy haven" in the nomenclature of record labels. Just because a site has an infringing draw does not a rogue site make. The DMCA and case law are pretty clear about this.
On the post: MP3Tunes Ruling Protects DMCA Safe Harbors
On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
Re: Re:
On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
Re:
On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
Re: Re: What copyright means
On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: What copyright means
On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
Re: Re: Re: Re: Re: Re: Re: What copyright means
On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
Re: Re: Re: Re: Re: Re: Re: Re: Re: What copyright means
On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
Re: Re: Re: Re: Re: What copyright means
On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
Re: Re: Re: Re: Re: Re: Re: What copyright means
On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
Re: Re: Re: Re: Re: Re: Re: What copyright means
The scenario you've theorized seems plausible based on the single line of logic underpinning it [everything starts out creative -- but I would even quibble with that and call walking practical rather than creative]. But even granting your premise, there are always multiple limits on copyright law working simultaneously to prevent impractical outcomes.
Even if a western shootout [moving to my earlier example] was not yet common in films when utilized by a filmmaker, there are multiple other basic defenses for a subsequent filmmaker to use; anything from a shootout being a mere "idea" [the expression of which from the first film isn't copied] to it being a historical fact [shootouts frequently occurred in the wild west, so utilization of it is stock right out of the gate] to having come up with the idea of using a shootout independently of the first filmmaker.
The goal of copyright isn't to prevent wide use of any underlying concept, but to prevent slavish copying of an expression of that idea beyond utility. So without concrete examples of copyright preventing adoption of mere actions, I have to assume the built-in prevention measures are doing their jobs.
On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
Re: Re: Re: Re: Re: What copyright means
On the post: Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'
Re:
You nailed it; copyright is absolutely replete with blurry lines, and when you brush up against them, 505 puts you in the danger zone. The case I dealt with was a summary judgment showdown between a screenwriter and a media company, mostly dealing with the level of similarity between their works necessary to proceed to trial. The screenwriter had around half a dozen cases helpful to analogize to, but the company had dozens of unhelpful ones (with analytical methods that often seem to clash with the methodology of the screenwriters' cases, none of which have been declared bad law). It came down to the judge buying the unhelpful analyses. The 505 award was the court both adding insult to injury and sending a message: good faith or not, no more bringing wishy-washy copyright claims against media companies.
I don't think the escrow/bond option will happen either, for reasons/pretensions of justice [pity the indigent pro se litigant with a golden case], progress [we want people pushing against the law to see how resilient it is], and simple mercenary economics [lawyers like being able to raise a ruckus with limited liability]. In the meantime, fee awards are the next best option, but as with all things equitable, some judges swing a little wild.
On the post: Legally Bought Some Books Abroad? Sell Them In The US And You Could Owe $150k Per Book For Infringement
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