I don't think that's exactly fair. Not all opinions are the same. The Federal Circuit was the first federal appellate court to look at open source licenses. It's not like there's a robust body of law behind it. If I remember correctly, and it's been a while since I read the opinion, the court wasn't saying that it's a contract as part of its holding. And the court properly recognize the difference between a condition and a covenant. I believe the discussion about consideration was dicta.
I have been unable to identify any of these "further interviews/articles." Can you provide any citations to these articles where there was a clarification of the "good faith" statement by Musk or Tesla? I know that several outlets were conjecturing as to what "good faith" meant, but as far as I know, and as far as my google search revealed, Tesla itself never clarified what it meant (at least until Musk's recent comments cited in this article that it meant the patents were completely free). Furthermore, while you are correct that cross-licensing schemes are common-place and good for companies, there is no evidence that a cross-licensing scheme was what Tesla was proposing or requesting. Given that the only statements by Tesla/Musk have indicated no reciprocity requirement, Tesla is not requiring cross-licensing.
I am remembering what I read months ago. You may be right about it being conjecture by the article’s author and not a quote from Musk. I’ll look and see if I can find the sources I read last summer.
Although there was never an explicit statement of "we promise not to sue without condition," that wasn't my argument. My argument is that the combination of Tesla's early statement "we will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology" and Musk's recent statement "We actually don't require any formal discussions. So they can just go ahead and use them...You just use them. Which I think is better because then we don't need to get into any kind of discussions or whatever. So we don't know. I think you'll see it in the cars that come out, should they choose to use them" creates an implied license to anyone who takes advantage of it, and that license would probably be enough for a court to prevent a suit for patent infringement by Tesla. You cannot give someone permission for an action and then turn around and sue them when they take that specific action.
I think it’s up in the air exactly what he meant. If he’s so anxious to grant everyone licenses, why doesn’t he just explicitly say so in writing? All we have are the blog post with the “in good faith” weasel words, some later articles that at least guess that he means cross-licensing, and his recent statements that no discussions are necessary. If I’m advising someone who wants to use his patents, I’d advise them that the terms of this license are unclear.
The consideration is the use of the software. You gain the benefit of the software by agreeing to the terms of the open source license. But don't take my word for it, here's a case by the Court of Appeals for the Federal Circuit that accepts and addresses an open source license as a contract: http://www.cafc.uscourts.gov/images/stories/opinions-orders/08-1001.pdf
Yes, Jacobsen v. Katzer. I don’t think that opinion makes much sense. It stretches the meaning of mutual assent and consideration too far. The Federal Circuit strangely invoked the language of contracts as it tried to explain away the lack of royalties as consideration. But there was no need to go there as licenses can be granted unilaterally without the need of contract or consideration.
Honestly, it’s better for the open source movement that these licenses be unilateral property grants rather than bilateral contractual agreements. That way, they’re enforceable absent agreement and consideration, and they bind third-parties who are not in privity with the promisor. The fact that they operate in rem, and not in personam, is a plus. I think the Federal Circuit reached the right result, but for the wrong reasons.
And while I recognize I am only feeding the trolls by responding, your idiocy compels me to.
I know this is Techdirt, and you’re just following Mike’s lead as far as personally attacking everyone you disagree with, but your argument would be better received if you politely disagreed. Try it sometime!
Your statement that "this is an open source license, with a condition: If you use my patents, I can use your patents" is absolutely false. The statement made by Musk and Tesla was that they would"not initiate patent lawsuits against anyone who, in good faith, wants to use our technology." No where in that statement is their a requirement of reciprocity or cross-licensing.
There were later interviews/articles that suggested “in good faith” meant a cross-licensing scheme, which makes sense. Such cross-licensing schemes are commonplace. Tesla isn’t breaking any new ground. It also came out that Musk intends to obtain more patents. He wants to license, not abandon. He wants open source, not public domain. Of course, he’s still sitting on his trade secrets, that is, inventions that are not disclosed publicly.
Musk's further statements clarifying also lack any requirement of cross-licensing. So this is not an open source license with a condition, its a promise not to sue, which can be relied on and would most likely be enforced by the courts if Tesla attempted to sue on its patents. Therefore, it equates to an open, unrestricted license for the patents to anyone who wishes to make use of them.
Where did he promise not to sue without condition?
Your inane attempts to throw in legal sounding terms such as "sound in contract law" simply demonstrates that you do not have a firm grasp on the legal concepts behind those statements. Open source licenses, are, in fact contracts. They are the equivalent of an EULA (e.g., a contract) which you accept by use of the software. There are restrictions in many open source licenses, and those restrictions are only enforceable BECAUSE they are valid, enforceable contracts.
An open source license is not a contract. If it’s a contract, where’s the consideration?
Next time, try looking at the actual facts before formulating some half-cocked argument that would see you guilty of malpractice if presented in a court.
Next time just politely disagree and explain yourself. I’m happy to back up what I say. I’m happy to have a polite discussion. No need to be abusive. I know Techdirt brings out the worst in people, myself included at times, but let’s rise above it and have a nice chat. Deal?
However, as some may recall, when Musk made the original announcement, the terms of freeing up the patents were at least a little vague. It said that Tesla "will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology." That "in good faith" claim had a few scratching their heads, and pointing out that still gave Tesla an out. We were a little disappointed that the company didn't make the terms entirely clear, believing that the "in good faith" line would likely scare away some companies from actually using the patents. However, recently, at the Detroit Auto Show, when questioned about this, Musk clarified that he really meant to make them completely free for anyone to use, no questions asked, no licensing discussions needed[.] ***
In other words, Musk is saying what most of us assumed all along was the point. Hoarding the patents and blocking others doesn't help him at all. Letting others expand the market does. And licensing discussions are unnecessary friction and a waste of time.
If Musk really wanted to abandon his patents, he would do so explicitly. Clearly he does not. He wants the patents, and he still has them. I don’t see how saying that discussions aren’t necessary changes anything. As you noted, Musk hedged with the “in good faith” clause. Musk said that Tesla “will not initiate patent lawsuits” against anyone who uses the patents “in good faith.” He didn’t say that he won’t countersue. He said he won’t sue. This is just cross-licensing: If someone uses Tesla’s patents, then that someone can’t sue Tesla if it uses their patents.
This is an open source license, with a condition: If you use my patents, I can use your patents. The arrangement does not sound in contract law. It’s not a contract. It’s a unilateral grant sounding in property law. Unilateral grants don’t require “licensing discussions.” If I attach a Creative Commons license to my work, you can engage in the licensed uses even if we don’t have any discussions. This is why open-source licenses work. They’re not contracts.
Frankly, Tesla opening up its patents seems like a move that shows how confident it is in its execution abilities, and makes the company a lot less likely to rest on its laurels and become nothing but a "licensing" company down the road. The fact that people who don't understand what a mess patents are and how they slow down innovation are now jumping in making ridiculous claims like Tesla's decision is why Apple can now jump into the EV car market just shows how little some people understand patents. The "myth" of patents as a powerful tool of innovation is still out there, and that's a shame.
I think the fact that you can’t admit that patents do spur innovation in some ways, while impeding innovation in other ways, is a “shame” on your part. I think being so black-and-white really hurts your cause. It demonstrates that you’re not a reasonable person. My two cents.
It's almost like something can be a derivative work and also fair use.
Haha. I hear ya. I think fair use applies to all rights in 106. 107 even says so: "or by any other means specified by that section." But I think the difference between transformative fair use and a derivative work is nonetheless real such that the fair use exception doesn't swallow the derivative right rule. Theere's a cert petition before SCOTUS currently in Kienitz v. Sconnie Nation that turns on this distinction. It's not getting as much press as Oracle v. Google, but I think it's more interesting.
I'm still confused as to how this is a criminal charge at all. It seems like he may very well be guilty of civil copyright infringement in personal downloads that he admitted to. But the rest... I don't see how it meets the requirements of criminal copyright infringement.
Are you serious? From the DOJ press release you linked to: "He was sentenced to a year and a day in federal prison for conspiring to commit felony copyright infringement." The crime he pled guilty to is found in 18 USC 371. He pled guilty to willfully participating in the unlawful plan with the intent to further its objective. The superseding indictment includes many instances of direct criminal infringement by the members of the conspiracy--that's the unlawful plan. Why do you continue to pretend like these allegations don't exist? It doesn't help your credibility. Seriously, your continued denialism is delusional at this point. Though, the fact that you won't even discuss the specifics makes it just seem dishonest. Either way, it's not good.
You're completely full of shit. Copyright can't prevent me from creating a derivative work. It can only prevent me from publishing it in some cases.
I'm not sure how accurately discussing the law makes me "completely full of shit." It's infringement to create a derivative work, even if you keep it to yourself. It's not the public derivative right, it's the derivative right. Naturally, if you keep it to yourself, chances are you won't get caught. But it's nonetheless infringing.
Copyright is not intended to prevent works from being incorporated into culture. It is intended to enable people to capitalize on their creations.
It’s intended to do both. It allows authors to prevent works from being incorporated into culture in certain ways. For example, an author controls the initial public distribution of a copy of the work. And it grants the author control over reproductions, both private and public. Of course, authors don’t have total control over their works, such as when uses are excused by the fair use or first sale defenses. But it’s incorrect to say that authors can’t prevent certain methods of incorporation into culture. That’s exactly what the exclusive rights in Section 106 do.
Authors have the right “to prepare derivative works based upon the copyrighted work,” and a “derivative work” is one that “recast[s], transform[s], or adapt[s]” the original. Clearly, much of fan fiction is derivative and thus infringing. This is one of the ways copyright “is intended to enable people to capitalize on their creations,” as you put it. It’s also one of the ways that copyright “prevent[s] works from being incorporated into culture.” It's simply not true that copyright is intended to promote cultural incorporation, no matter what.
I'm with you on Jon Stewart relying heavily on fair use, as you noted his use is "for the purpose of humorous political criticism." That's quintessential fair use. But you lose me on the fan fiction claim. I think sometimes it's transformative fair use and sometimes it's infringement of the derivative right. That has to be determined on a case-by-case basis. A derivative work is one in which the original is "recast, transformed, or adapted." 17 USC 101. That would cover a lot of fan fiction. Your claim (in the first post) that "[f]an fiction is a quintessential fair use" appears to be writing the derivative right out of the Copyright Act.
There's case law that cuts both ways. There's disagreement among the circuit courts about what the proper test for conceptual separability even is. The Nimmer treatise disagrees with the Patry treatise. This stuff isn't black and white. That's what lawyers are for! Here's a case where the judge discusses some of the different approaches, ultimately concluding that a tiger costume is copyrightable--though only thinly so. http://scholar.google.com/scholar_case?case=10535111870820633617
Are there any cases about costumes specifically, so that we don't have to reason by analogy?
The only one I remember off the top of my head is this one, which involved halloween costumes:
Accordingly, design elements that can be “conceptualized as existing independently of their utilitarian function,” Carol Barnhart, 773 F.2d at 418, are eligible for copyright protection. And we have noted that, while design elements that “reflect a merger of aesthetic and functional considerations ... cannot be said to be conceptually separable from the utilitarian elements,” Brandir, 834 F.2d at 1145, “where design elements can be identified as reflecting the designer's artistic judgment exercised independently of functional influences, conceptual separability exists.” Id. (emphasis added). See also id. at 1147 (clarifying that, when a design element is “influenced in significant measure by utilitarian concerns,” the design is not conceptually separable from the underlying article) (emphasis added). In all this we have not doubted that when a component of a useful article can actually be removed from the original item and separately sold, without adversely impacting the article's functionality, that physically separable design element may be copyrighted. Cf. Mazer, 347 U.S. at 218–19, 74 S.Ct. 460 (holding that the design of a dancer carved into the base of a lamp was protected by the Copyright Act, even though the design of the lamp itself was not protected).
6 Applying these tests to the case before us at the Rule 12(b)(6) stage—where a complaint will not be dismissed unless it is beyond peradventure that the plaintiff could prove no set of facts leading to success, see Conley, 355 U.S. at 45–46, 78 S.Ct. 99—we cannot say that Chosun's allegations of copyright infringement are insufficient. It is at least possible that elements of Chosun's plush sculpted animal costumes are separable from the overall design of the costume, and hence eligible for protection under the Copyright Act. It might, for example, be the case that the sculpted “heads” of these designs are physically separable from the overall costume, in that they could be removed from the costume without adversely impacting the wearer's ability to cover his or her body.3 Similarly, it could be that the *330 sculpted “heads” (and perhaps “hands”) are conceptually separable. That is, Chosun may be able to show that they invoke in the viewer a concept separate from that of the costume's “clothing” function, and that their addition to the costume was not motivated by a desire to enhance the costume's functionality qua clothing. It is, of course, possible that at any of several later stages Chosun will have failed, as a matter of law, to prove that such separability exists. But that possibility cannot justify dismissal of Chosun's complaint now on a Rule 12(b)(6) motion.
Chosun Int'l, Inc. v. Chrisha Creations, Ltd., 413 F.3d 324, 329-30 (2d Cir. 2005).
That's not particularly helpful, since the posture was a motion to dismiss. All the court says is that a costume could potentially be copyrighted. I'm sure there are other cases, but I'd have to do some research. If I have time later, I'll see what I can find.
Can you please provide an actual argument here? As I understand it -- and I am not an attorney, let alone a copyright attorney, so I may very well not be understanding correctly -- separability is the notion that a functional item may qualify for copyright despite being functional because the artistic aspect is considered separately from the utility aspect. I don't see how that relates to this particular case at all.
Sorry, I didn’t have time to explain further yesterday.
The Copyright Act provides:
A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.
17 U.S.C. § 101.
It further provides:
[T]he design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.
Ibid.
The test, derived from the statutes, is separability. A useful article, taken as a whole, is not copyrightable. That’s the realm of patents, aka, the useful arts. Nevertheless, parts of useful articles can be copyrighted, but only if they can be physically or conceptually separated from the useful articles. For example, a chair is a useful article. To the extent it functions as a chair, it can’t be copyrighted. But an ornamental design on the back of the chair can be copyrighted, as it is conceptually, if not physically, separable from the utility of the chair.
So is the shark design separable from shark costume’s utilitarian function? That’s the test. It’s wrong to just say costumes can’t be copyrighted. You have to do a separability analysis. That was my point. To do that, you’d have to turn to the case law and reason by analogy.
For example, you could look at this case, where the district court held that particular slippers shaped like bear claws were copyrightable because the design was conceptually separable from the utilitarian slipper:
The Court will assume for purposes of the present motion that plaintiff's slipper is a useful article within 17 U.S.C. § 101.17 Notwithstanding this assumption, defendant's characterization of the scope of copyright protection in this case is far too narrow. Virtually all of the design aspects of plaintiff's slipper “can be identified separately from, and ... exist ... independently of, the utilitarian aspects of the [slipper].” 17 U.S.C. § 101. It is clear that such features need not be physically separable from the useful article in order to be protectable; it is enough that they can be conceptually separated. Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 993 (2d Cir.1980). In the present case, plaintiff's design features are conceptually separate from the utilitarian aspects of its slipper. Plaintiff correctly notes that one could draw a line drawing of the whole shape and design which would be recognizable as a fanciful artistic rendition of a bear's paw, regardless of what type of functional or utilitarian object it was used to adorn. See Ted Arnold Ltd. v. Silvercraft Co., 259 F.Supp. 733 (S.D.N.Y.1966) (pencil sharpener with exterior shape in form of antique telephone held protectable); Royalty Designs, Inc. v. Thrifticheck Service Corp., 204 F.Supp. 702 (S.D.N.Y.1962) (toy banks in shape of dogs held protectable). The impractical width and shape of the BEARFOOTTM sole, the artwork *188 on the sole, the particular combination of colors, the profile of the slipper, the stuffed aspect of the slipper, and the toes are all sculptural features which comprise the artistic design and which are wholly unrelated to function. The Court therefore finds that the entire exterior design of plaintiff's slipper is protectable under the Copyright Act.
Animal Fair, Inc. v. AMFESCO Indus., Inc., 620 F. Supp. 175, 187-88 (D. Minn. 1985) aff'd sub nom. Animal Fair v. Amfesco Indus., 794 F.2d 678 (8th Cir. 1986).
Reasoning by analogy, the shark costume is utilitarian in that it is a costume. That is its function. No one can copyright the functionality of any costume. But separable from the utility of the shark costume is its design. It contains many “sculptural features which comprise the artistic design and which are wholly unrelated to function,” just like the bear claw slippers. So it's copyrightable, just like the slippers.
There's other cases that cut this same way, and there’s cases that cut the other way. But my point is that it’s not as simple as costume = not copyrightable, as Mike claimed.
Actually there is doubt. Because as explained, costumes don't get copyright protection.
This is a gross oversimplification of the law. What about separability? I know, you complain that I'm too dependent on "authority" when discussing the parts of the law you choose to ignore. I don't expect a substantive response, don't worry.
Good for you for taking such criticism in stride. With a bit of homework, one day you'll be able to accurately discuss the merits of the cases you routinely mock. I look forward to it!
I do not recall reading anything attributed to an official of the MPAA that everything anyone might want is available online, so it is not clear just what you think you are debunking.
My personal experience (US only) is that shortly after theatrical release the vast majority of new films can be found in several well-known and easily accessible locations that do not involve engaging in piracy. Of course there is the downside that one typically has to part with some $$, but those $$ are relatively nominal if you shop with care
Mike unilaterally declares complex things completely "debunked" when it suits him. Don't ask for any kind of reasoned argument from him. He has none. Just grab your pitchfork and stop thinking.
I think you missed my point. I'm sure Timmy G is well-suited to produce "look how dumb!" posts for TD. It's just that, ironically enough, he's the one who looks dumb when he attempts to draw legal conclusions. It's painfully obvious that he has very little grasp of trademark law. Considering how Mike has built a career in blasting other sites for writing dumb stuff, it's deliciously funny that his own writers display such shameful shortcomings. Timmy G strikes me as the guy who berates another with a "your dumb" reply.
Wow. No mention that this is a certification mark, not a trademark. No discussion of what the actual infringement test is, much less how to apply it here. No understanding of what a "purely descriptive" mark is. Must be more IP "analysis" by Timmy G on TD. "This, people, is as stupid as it gets." Couldn't have said it better myself.
Gosh, imagine, there are people selling bottled water. How can they compete with communities giving water away essentially for free?
Are you really comparing copyrighted works to tangible goods? I thought that wasn't allowed on Techdirt. Regardless, I don't get your point. How is water, which is tangible and needed for survival, like a movie stream, which is nontangible and unnecessary?
On the post: Elon Musk Clarifies That Tesla's Patents Really Are Free; Investor Absolutely Freaks Out
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On the post: Elon Musk Clarifies That Tesla's Patents Really Are Free; Investor Absolutely Freaks Out
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I am remembering what I read months ago. You may be right about it being conjecture by the article’s author and not a quote from Musk. I’ll look and see if I can find the sources I read last summer.
Although there was never an explicit statement of "we promise not to sue without condition," that wasn't my argument. My argument is that the combination of Tesla's early statement "we will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology" and Musk's recent statement "We actually don't require any formal discussions. So they can just go ahead and use them...You just use them. Which I think is better because then we don't need to get into any kind of discussions or whatever. So we don't know. I think you'll see it in the cars that come out, should they choose to use them" creates an implied license to anyone who takes advantage of it, and that license would probably be enough for a court to prevent a suit for patent infringement by Tesla. You cannot give someone permission for an action and then turn around and sue them when they take that specific action.
I think it’s up in the air exactly what he meant. If he’s so anxious to grant everyone licenses, why doesn’t he just explicitly say so in writing? All we have are the blog post with the “in good faith” weasel words, some later articles that at least guess that he means cross-licensing, and his recent statements that no discussions are necessary. If I’m advising someone who wants to use his patents, I’d advise them that the terms of this license are unclear.
The consideration is the use of the software. You gain the benefit of the software by agreeing to the terms of the open source license. But don't take my word for it, here's a case by the Court of Appeals for the Federal Circuit that accepts and addresses an open source license as a contract: http://www.cafc.uscourts.gov/images/stories/opinions-orders/08-1001.pdf
Yes, Jacobsen v. Katzer. I don’t think that opinion makes much sense. It stretches the meaning of mutual assent and consideration too far. The Federal Circuit strangely invoked the language of contracts as it tried to explain away the lack of royalties as consideration. But there was no need to go there as licenses can be granted unilaterally without the need of contract or consideration.
Honestly, it’s better for the open source movement that these licenses be unilateral property grants rather than bilateral contractual agreements. That way, they’re enforceable absent agreement and consideration, and they bind third-parties who are not in privity with the promisor. The fact that they operate in rem, and not in personam, is a plus. I think the Federal Circuit reached the right result, but for the wrong reasons.
On the post: Elon Musk Clarifies That Tesla's Patents Really Are Free; Investor Absolutely Freaks Out
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On the post: Elon Musk Clarifies That Tesla's Patents Really Are Free; Investor Absolutely Freaks Out
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Delicious irony.
And while I recognize I am only feeding the trolls by responding, your idiocy compels me to.
I know this is Techdirt, and you’re just following Mike’s lead as far as personally attacking everyone you disagree with, but your argument would be better received if you politely disagreed. Try it sometime!
Your statement that "this is an open source license, with a condition: If you use my patents, I can use your patents" is absolutely false. The statement made by Musk and Tesla was that they would"not initiate patent lawsuits against anyone who, in good faith, wants to use our technology." No where in that statement is their a requirement of reciprocity or cross-licensing.
There were later interviews/articles that suggested “in good faith” meant a cross-licensing scheme, which makes sense. Such cross-licensing schemes are commonplace. Tesla isn’t breaking any new ground. It also came out that Musk intends to obtain more patents. He wants to license, not abandon. He wants open source, not public domain. Of course, he’s still sitting on his trade secrets, that is, inventions that are not disclosed publicly.
Musk's further statements clarifying also lack any requirement of cross-licensing. So this is not an open source license with a condition, its a promise not to sue, which can be relied on and would most likely be enforced by the courts if Tesla attempted to sue on its patents. Therefore, it equates to an open, unrestricted license for the patents to anyone who wishes to make use of them.
Where did he promise not to sue without condition?
Your inane attempts to throw in legal sounding terms such as "sound in contract law" simply demonstrates that you do not have a firm grasp on the legal concepts behind those statements. Open source licenses, are, in fact contracts. They are the equivalent of an EULA (e.g., a contract) which you accept by use of the software. There are restrictions in many open source licenses, and those restrictions are only enforceable BECAUSE they are valid, enforceable contracts.
An open source license is not a contract. If it’s a contract, where’s the consideration?
Next time, try looking at the actual facts before formulating some half-cocked argument that would see you guilty of malpractice if presented in a court.
Next time just politely disagree and explain yourself. I’m happy to back up what I say. I’m happy to have a polite discussion. No need to be abusive. I know Techdirt brings out the worst in people, myself included at times, but let’s rise above it and have a nice chat. Deal?
On the post: Elon Musk Clarifies That Tesla's Patents Really Are Free; Investor Absolutely Freaks Out
In other words, Musk is saying what most of us assumed all along was the point. Hoarding the patents and blocking others doesn't help him at all. Letting others expand the market does. And licensing discussions are unnecessary friction and a waste of time.
If Musk really wanted to abandon his patents, he would do so explicitly. Clearly he does not. He wants the patents, and he still has them. I don’t see how saying that discussions aren’t necessary changes anything. As you noted, Musk hedged with the “in good faith” clause. Musk said that Tesla “will not initiate patent lawsuits” against anyone who uses the patents “in good faith.” He didn’t say that he won’t countersue. He said he won’t sue. This is just cross-licensing: If someone uses Tesla’s patents, then that someone can’t sue Tesla if it uses their patents.
This is an open source license, with a condition: If you use my patents, I can use your patents. The arrangement does not sound in contract law. It’s not a contract. It’s a unilateral grant sounding in property law. Unilateral grants don’t require “licensing discussions.” If I attach a Creative Commons license to my work, you can engage in the licensed uses even if we don’t have any discussions. This is why open-source licenses work. They’re not contracts.
Frankly, Tesla opening up its patents seems like a move that shows how confident it is in its execution abilities, and makes the company a lot less likely to rest on its laurels and become nothing but a "licensing" company down the road. The fact that people who don't understand what a mess patents are and how they slow down innovation are now jumping in making ridiculous claims like Tesla's decision is why Apple can now jump into the EV car market just shows how little some people understand patents. The "myth" of patents as a powerful tool of innovation is still out there, and that's a shame.
I think the fact that you can’t admit that patents do spur innovation in some ways, while impeding innovation in other ways, is a “shame” on your part. I think being so black-and-white really hurts your cause. It demonstrates that you’re not a reasonable person. My two cents.
On the post: Fair Use: The Foundation Of Jon Stewart's Success
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Haha. I hear ya. I think fair use applies to all rights in 106. 107 even says so: "or by any other means specified by that section." But I think the difference between transformative fair use and a derivative work is nonetheless real such that the fair use exception doesn't swallow the derivative right rule. Theere's a cert petition before SCOTUS currently in Kienitz v. Sconnie Nation that turns on this distinction. It's not getting as much press as Oracle v. Google, but I think it's more interesting.
On the post: Megaupload Programmer Takes Plea Deal, Though It's Still Unclear What Criminal Law He Violated
Are you serious? From the DOJ press release you linked to: "He was sentenced to a year and a day in federal prison for conspiring to commit felony copyright infringement." The crime he pled guilty to is found in 18 USC 371. He pled guilty to willfully participating in the unlawful plan with the intent to further its objective. The superseding indictment includes many instances of direct criminal infringement by the members of the conspiracy--that's the unlawful plan. Why do you continue to pretend like these allegations don't exist? It doesn't help your credibility. Seriously, your continued denialism is delusional at this point. Though, the fact that you won't even discuss the specifics makes it just seem dishonest. Either way, it's not good.
On the post: Fair Use: The Foundation Of Jon Stewart's Success
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I'm not sure how accurately discussing the law makes me "completely full of shit." It's infringement to create a derivative work, even if you keep it to yourself. It's not the public derivative right, it's the derivative right. Naturally, if you keep it to yourself, chances are you won't get caught. But it's nonetheless infringing.
On the post: Fair Use: The Foundation Of Jon Stewart's Success
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It’s intended to do both. It allows authors to prevent works from being incorporated into culture in certain ways. For example, an author controls the initial public distribution of a copy of the work. And it grants the author control over reproductions, both private and public. Of course, authors don’t have total control over their works, such as when uses are excused by the fair use or first sale defenses. But it’s incorrect to say that authors can’t prevent certain methods of incorporation into culture. That’s exactly what the exclusive rights in Section 106 do.
Authors have the right “to prepare derivative works based upon the copyrighted work,” and a “derivative work” is one that “recast[s], transform[s], or adapt[s]” the original. Clearly, much of fan fiction is derivative and thus infringing. This is one of the ways copyright “is intended to enable people to capitalize on their creations,” as you put it. It’s also one of the ways that copyright “prevent[s] works from being incorporated into culture.” It's simply not true that copyright is intended to promote cultural incorporation, no matter what.
On the post: Fair Use: The Foundation Of Jon Stewart's Success
On the post: Left Shark Bites Back: 3D Printer Sculptor Hires Lawyer To Respond To Katy Perry's Bogus Takedown
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On the post: Left Shark Bites Back: 3D Printer Sculptor Hires Lawyer To Respond To Katy Perry's Bogus Takedown
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The only one I remember off the top of my head is this one, which involved halloween costumes:Chosun Int'l, Inc. v. Chrisha Creations, Ltd., 413 F.3d 324, 329-30 (2d Cir. 2005).
That's not particularly helpful, since the posture was a motion to dismiss. All the court says is that a costume could potentially be copyrighted. I'm sure there are other cases, but I'd have to do some research. If I have time later, I'll see what I can find.
On the post: Left Shark Bites Back: 3D Printer Sculptor Hires Lawyer To Respond To Katy Perry's Bogus Takedown
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Sorry, I didn’t have time to explain further yesterday.
The Copyright Act provides:17 U.S.C. § 101.
It further provides:Ibid.
The test, derived from the statutes, is separability. A useful article, taken as a whole, is not copyrightable. That’s the realm of patents, aka, the useful arts. Nevertheless, parts of useful articles can be copyrighted, but only if they can be physically or conceptually separated from the useful articles. For example, a chair is a useful article. To the extent it functions as a chair, it can’t be copyrighted. But an ornamental design on the back of the chair can be copyrighted, as it is conceptually, if not physically, separable from the utility of the chair.
So is the shark design separable from shark costume’s utilitarian function? That’s the test. It’s wrong to just say costumes can’t be copyrighted. You have to do a separability analysis. That was my point. To do that, you’d have to turn to the case law and reason by analogy.
For example, you could look at this case, where the district court held that particular slippers shaped like bear claws were copyrightable because the design was conceptually separable from the utilitarian slipper:Animal Fair, Inc. v. AMFESCO Indus., Inc., 620 F. Supp. 175, 187-88 (D. Minn. 1985) aff'd sub nom. Animal Fair v. Amfesco Indus., 794 F.2d 678 (8th Cir. 1986).
Reasoning by analogy, the shark costume is utilitarian in that it is a costume. That is its function. No one can copyright the functionality of any costume. But separable from the utility of the shark costume is its design. It contains many “sculptural features which comprise the artistic design and which are wholly unrelated to function,” just like the bear claw slippers. So it's copyrightable, just like the slippers.
There's other cases that cut this same way, and there’s cases that cut the other way. But my point is that it’s not as simple as costume = not copyrightable, as Mike claimed.
On the post: Left Shark Bites Back: 3D Printer Sculptor Hires Lawyer To Respond To Katy Perry's Bogus Takedown
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This is a gross oversimplification of the law. What about separability? I know, you complain that I'm too dependent on "authority" when discussing the parts of the law you choose to ignore. I don't expect a substantive response, don't worry.
On the post: The MPAA Forces Craft Brewer To Abandon Its 'Rated R' Beer Brand
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Good for you for taking such criticism in stride. With a bit of homework, one day you'll be able to accurately discuss the merits of the cases you routinely mock. I look forward to it!
On the post: MPAA's Lies About Films Being Available Online Easily Debunked In Seconds
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I'm happy to log in before posting. If you're looking for sockpuppets, talk to Mike. He's the pro.
On the post: MPAA's Lies About Films Being Available Online Easily Debunked In Seconds
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My personal experience (US only) is that shortly after theatrical release the vast majority of new films can be found in several well-known and easily accessible locations that do not involve engaging in piracy. Of course there is the downside that one typically has to part with some $$, but those $$ are relatively nominal if you shop with care
Mike unilaterally declares complex things completely "debunked" when it suits him. Don't ask for any kind of reasoned argument from him. He has none. Just grab your pitchfork and stop thinking.
On the post: The MPAA Forces Craft Brewer To Abandon Its 'Rated R' Beer Brand
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On the post: The MPAA Forces Craft Brewer To Abandon Its 'Rated R' Beer Brand
On the post: The MPAA Isn't About Helping Hollywood. It's About Preserving Its Own Need To Exist.
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Are you really comparing copyrighted works to tangible goods? I thought that wasn't allowed on Techdirt. Regardless, I don't get your point. How is water, which is tangible and needed for survival, like a movie stream, which is nontangible and unnecessary?
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