There are various international agreements that spell out how patents work between different countries, and of course some countries behave differently within that system than others (see: China) -- and of course, on the internet there are jurisdictional issues with services that are available worldwide, servers in multiple different countries, etc.
In a sense, nothing is stopping the war you describe -- in fact that war is already happening in some places, such as China as mentioned, or India and other countries that are ignoring certain drug patents. But, of course, there are also powerful global and national interests operating in all these countries who benefit from a strong patent system worldwide, plus all the diplomatic muscle the US throws behind intellectual property, so the war isn't one-sided.
Re: "the technology is coming one way or the other"?
If the biggest reason to support DRM is that it's "inevitable", then there's even more reason to support DRM-breaking hacks and cracks, which have been inevitable since the first time anyone tried to limit what you can do with your devices.
Oh please. You've been answered plenty of times -- by Mike, by staff, by readers -- over the years that you have been weirdly obsessed with Mike, and every time you throw a giant temper tantrum. Now you just throw the temper tantrums right from word one, which saves us the indignity of talking to you.
Though honestly, if the concern is quid pro quo, I don't see how that's particularly comforting. Isn't the real value in permission to use the set, not the cost?
Besides, it seems to me that the threat of quid pro quo goes *up* if we decide that political parties using news footage isn't covered by fair dealing. After all, that's just giving the networks more quid to offer pro quo -- whereas if it's fair dealing, footage is not something networks can trade on for political favours.
If a campaign infringes and the rights holder does not assert their rights, I suspect an electoral law judge would see it as a contribution.
But how is an electoral judge to determine if it infringes if the rightsholder has not asserted their rights? There can be no copyright determination without a copyright lawsuit... Or are electoral judges supposed to arbitrarily decide to rule on non-existant civil copyright disputes? And are they qualified to do so?
That's tough though, because there's no fixed rate on licenses -- it's up to the copyright holder, who can offer to license something for free or ten billion dollars, whatever they want. So if a party uses unlicensed material, how big of a contribution did they accept?
I disagree. Andy Baio's contentious album cover was visual art.
You're right. I should say sometimes permissive (there is still an insane amount of uncertainty), and only speaking in contrast to the situation with music.
Yup, it's crazy subjective -- even in that case, the court made the very odd decision to claim that 25 of the works were definitely transformative while 5 had to be evaluated more, and how exactly they drew that line is as clear as mud.
Re: Re: Re: Re: Question About "Transformative" Uses
Not entirely. There is the question of meaning and message too, which are a part of purpose. Both works could be to entertain, but each could carry an entirely different message, and that could still be transformative. It's worth reading the Richard Prince ruling, where there's some discussion of just how permissive that standard can be -- in that case, Prince himself didn't even put up much of a defence in terms of claiming that his work had a new message, and the court still felt that it did and was thus fair use.
The drastic legal difference between music and visual art doesn't actually have much of a logical basis. It's just the result of different courts ruling different ways in different cases.
The standards are wildly different when it comes to different things, and also different circuits of the court. It's kind of a mess.
One quick correction to what James said above: the question of whether something is transformative has nothing to do with whether it is commercial. Both might enter into a fair use analysis, but they are independent of each other.
The question of a new medium has mattered in certain transformative work cases, but that's not the definitive standard by any means -- nor is it an automatic pass (e.g. recording a spoken version of a book would still infringe on the copyright of the book)
In the recent Richard Prince ruling over fair use in appropriation art, the court used the standard of a “new expression, meaning, or message” for transformative works -- nothing to do with the medium (that in itself would have been odd, since both are visual works, but is photography a "different" medium from collage, or a variant of the same?)
But, as noted, things can be wildly different elsewhere. Ever since some key rulings about 20 years ago, the standard for samples in music has been "get a license or do not sample" -- which is the far opposite end of the scale. Of course, part of that is due to a weird procedural issue: fair use was never fully tested in the case which set down that standard -- that "get a license" language was used in the rejection of a de minimis defence, which is different (basically 'it was such a small sample it can't possibly matter'). The fair use question was sent back to a lower court, but the case was settled before it was heard. It's also limited to one circuit. Nevertheless it became the de facto standard, and nobody has made a serious fair use/transformative argument in a remixing/sampling case since.
Thus you have this crazy situation where the standard for transformative visual art is quite permissive and sensible, but when it comes to samples and remixing, there is effectively no such thing as transformative art
On the post: When Startups Need More Lawyers Than Employees, The Patent System Isn't Working
Re: Question
In a sense, nothing is stopping the war you describe -- in fact that war is already happening in some places, such as China as mentioned, or India and other countries that are ignoring certain drug patents. But, of course, there are also powerful global and national interests operating in all these countries who benefit from a strong patent system worldwide, plus all the diplomatic muscle the US throws behind intellectual property, so the war isn't one-sided.
On the post: The Fight Over DRM In HTML5 Should Represent The Last Stand For DRM
Re: A Bit Upset With Netflix Here
On the post: Moral Panic Over Google Glass: White House Petition Asks To Ban Them To Prevent 'Indecent' Public Surveillance
Re: "the technology is coming one way or the other"?
On the post: Awesome Stuff: Films About Things Techdirt Talks About
Re: Re: advertising
On the post: Awesome Stuff: Films About Things Techdirt Talks About
Re: Re: Re: Re: Re:
On the post: When Memes Go Corporate: Creators Of Nyan Cat And Keyboard Cat Sue Warner Bros.
Re: Re: Re:
On the post: When Memes Go Corporate: Creators Of Nyan Cat And Keyboard Cat Sue Warner Bros.
Re: But surely..
On the post: When Memes Go Corporate: Creators Of Nyan Cat And Keyboard Cat Sue Warner Bros.
Re:
On the post: Universal Responds To Lawsuit About Its Hollywood Accounting Tricks By Claiming That It Actually Overpaid
Re: Error?
On the post: Canadian Politician Uses Nutty Hybrid Copyright Complaint In Attempt To Stifle Criticism
Re: Quid pro quo?
Though honestly, if the concern is quid pro quo, I don't see how that's particularly comforting. Isn't the real value in permission to use the set, not the cost?
Besides, it seems to me that the threat of quid pro quo goes *up* if we decide that political parties using news footage isn't covered by fair dealing. After all, that's just giving the networks more quid to offer pro quo -- whereas if it's fair dealing, footage is not something networks can trade on for political favours.
On the post: New Special 301 Report Shows Spain's Kowtowing Paid Off
Re: "The Ukraine" is offensive, don't use it!
On the post: Canadian Politician Uses Nutty Hybrid Copyright Complaint In Attempt To Stifle Criticism
Re: Re: Re:
But how is an electoral judge to determine if it infringes if the rightsholder has not asserted their rights? There can be no copyright determination without a copyright lawsuit... Or are electoral judges supposed to arbitrarily decide to rule on non-existant civil copyright disputes? And are they qualified to do so?
On the post: Why Do Politicians Continue To Insist That A Magic Button Can Make Porn Disappear Online?
Re: It's not "Make Porn Disappear Online", only in public spots.
Who knew it was so easy?
On the post: Hitchhiker's Fan-Site Started By Douglas Adams Shows Why Authors Shouldn't Panic Over Derivative Works
Re: Superior sense: if you like HHGTG, DON'T WATCH THE MOVIE!
On the post: Canadian Politician Uses Nutty Hybrid Copyright Complaint In Attempt To Stifle Criticism
Re:
On the post: ICE Starts Raiding Mobile Phone Repair Shops To Stop Repairs With Aftermarket Parts
Re: Re: Re: why not say the word ???? COUNTERFEIT
e.g. the two most common things to break / wear out on phones, easily common enough to form the basis of a healthy parts & repair market
On the post: Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many
Re: Re: Re: Question About "Transformative" Uses
You're right. I should say sometimes permissive (there is still an insane amount of uncertainty), and only speaking in contrast to the situation with music.
On the post: Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many
Re: Re: Re: Question About "Transformative" Uses
On the post: Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many
Re: Re: Re: Re: Question About "Transformative" Uses
The drastic legal difference between music and visual art doesn't actually have much of a logical basis. It's just the result of different courts ruling different ways in different cases.
On the post: Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many
Re: Question About "Transformative" Uses
One quick correction to what James said above: the question of whether something is transformative has nothing to do with whether it is commercial. Both might enter into a fair use analysis, but they are independent of each other.
The question of a new medium has mattered in certain transformative work cases, but that's not the definitive standard by any means -- nor is it an automatic pass (e.g. recording a spoken version of a book would still infringe on the copyright of the book)
In the recent Richard Prince ruling over fair use in appropriation art, the court used the standard of a “new expression, meaning, or message” for transformative works -- nothing to do with the medium (that in itself would have been odd, since both are visual works, but is photography a "different" medium from collage, or a variant of the same?)
But, as noted, things can be wildly different elsewhere. Ever since some key rulings about 20 years ago, the standard for samples in music has been "get a license or do not sample" -- which is the far opposite end of the scale. Of course, part of that is due to a weird procedural issue: fair use was never fully tested in the case which set down that standard -- that "get a license" language was used in the rejection of a de minimis defence, which is different (basically 'it was such a small sample it can't possibly matter'). The fair use question was sent back to a lower court, but the case was settled before it was heard. It's also limited to one circuit. Nevertheless it became the de facto standard, and nobody has made a serious fair use/transformative argument in a remixing/sampling case since.
Thus you have this crazy situation where the standard for transformative visual art is quite permissive and sensible, but when it comes to samples and remixing, there is effectively no such thing as transformative art
Next >>