Unless more information has come out, we're being a little quick to rush to judgment here. Substantial similarity is not illegal, it is merely evidence of infringement. If BlueBeat.com can demonstrate that it independently created these recordings, then at most it has infringed a copyright on the songs (by creating a new derivative work), not the recordings. (For my part, I am deeply skeptical that this has happened, here, but it is not impossible.)
I could imagine a system that would allow someone to do this that would create a very interesting copyright question. Say BlueBeat.com has a way of taking each recorded sound out of the original recording, adding back to it all of the stuff it lost in recording, and imaging it back into space - so they are left with the raw work, as performed but not as recorded. For instance, there is a speaker in the size and shape of John's mouth placed about 5'3" off the floor of a recording booth that is emitting _exactly_ the sounds John's mouth emitted at the time of the original recording. Now the engineer mics the speaker as if it is a singer, and re-records the imaged vocal.
As far as the creative content goes, all of the originality has been sucked out of the original recording in order to create the new work, which clearly has the same amount of originality as the first recording. The interesting copyright question is whether this second work is derivative of the first recording, despite containing none of the original elements of the first recording.
Infringement exists. It is not "piracy." It is the violation of a statutorily imposed prohibition against making copies. That is a far cry from piracy.
In any event, it turns out torrent is a really good way to distribute software and (whose surprised?) a fine way to promote it, too.
Movie producers "pirate" free, crippled versions of their own movies long before the real product is even finished (let alone distributed for retail sale). They call it a "trailer," but it works more or less the same. Is Escapist's argument that they put too much of the film in the trailer?
You can take the Alaskan out of the trailer park, ...
The worst part about this whole affair is that it CONTINUES to keep Palin et al. in the news. The world will be better when this particular episode in US history scabs over.
Verizon has no 3G coverage in Alaska. They do not operate in Alaska. Nonetheless, they show substantial coverage in Alaska in the ad. AT&T has extensive 3G coverage in Alaska. They used to buy it from someone else under partnership, but for more than a year they have been relying on their own capacity. Verizon's coverage maps are inaccurate, and their portrayal of AT&T's coverage map is also inaccurate.
In any event, both the Lanham Act and state-law "little Lanham Acts" protect against "deceptive" advertising, not just "false" advertising. Deception can include merely misleading statements. If an average, reasonable consumer might be mislead by the advertisement to believe that Verizon has more coverage than AT&T (not just 3G coverage,) than no amount of disclaimer by Verizon will cure the fact that it is misleading (if, indeed, that claim is not true). Among other things, the ad contrasts a Verizon user with an AT&T user, and suggests that the AT&T user is unable to use their mobile device at all because of the exceptionally poor coverage in an obvious urban area. This is just BS.
AT&T has a good case here. And we should be pleased that AT&T is suing for the right reason - to correct inaccuracies in the advertisement. They _could_ have sued on some whacked out infringement theory, asserting ownership or registration of "There's an app for that" and asserting that Verizon was disparaging their famous mark.
The trouble with imprecise language is that it is rarely interpreted the way everyone expects (because everyone has a different expectation). The word "media" in the sample phrase is loaded, and likely undefined.
Of course, the broadest definition is likely something like "any 'tangible medium of expression' to which the law of copyright applies." But that may not be appropriate for every license, because it could surreptitiously sweep in some derivative work rights (which may not even be the author's to give).
It is interesting to me to see content publishers scrambling and spending time, effort, and money to try to remedy the fact that our broken copyright law has ugly and unintended consequences. When commercial actors are having to create private-law (ie - contract) remedies for the harshness and stupidity of public laws designed to protect the same commercial actors, isn't there a problem?
This is... astonishing. What is it XOS thinks the NFL is doing that implicates copyright? For that matter, what the hell is XOS doing that implicates copyright? XOS apparently digitizes video content recorded by the schools. That is a mechanical process involving no originality or creativity.
If the article is correct, XOS intends to sue the NFL even if it buys the tapes from another vendor. The theory appears to be that XOS has an agreement with SEC teams, so if an SEC team plays a Big East team and the Big East team sells the NFL a tape of the game, XOS is entitled to something. But XOS cannot have a copyright over a tape it did not make! It must be thinking it will sue based on its agreement with the SEC... but that contract claim lies against the SEC (if anyone,) not the NFL.
This is big money stuff, and the way it is reported in the article makes exactly no sense. I think SI is the problem, here, and the real story is not quite this stupid. Anyhow, I hope that's the case.
Public domain is the opposite of government regulation. If something is in the public domain, any member of the public can do whatever they want with it.
We still have private highways, and they work. Always have. Shipping is still privately managed, at least where I live. Railroads are only public because it turns out they are not sufficiently good for the public in peacetime for private parties to pay what a ticket should cost (but having the capacity is useful in case of domestic invasion, same as public highways).
The government should be in the business of investing in public goods (ie, things that private individuals will not invest in sufficiently if left to their own devices, like cops,) and forcing individuals to internalize externalities of their conduct (ie, tort law and environmental regulation). Spectrum is not a public good - it is already freely available. Spectrum uses are not public goods - they are profitable, and people will invest in them sufficiently for them to develop. There is still a regulatory role for government in dealing with spectrum - it should force actors to internalize the external effects of their conduct - but it can fill that role without regulating uses of spectrum. It should do so.
The spectrum scarcity argument is a myth, and it is the basis for some truly bad law.
Yes, you have the potential for interference. That already exists - it is the Mexican Radio problem. At the moment, we deal with it in two ways: (1) limiting transmission power in specific frequencies; and (2) limiting which frequencies can be used by specific technologies. One of those is plenty - we can dump the second, and still have pretty good avoidance.
In any event, there is no reason to believe that crafty engineers will fail to find ways to avoid interference. There is no doubt that technology will look different from how it now looks, but that isn't a bad thing. Companies, even Tyco, do not need the government to tell them how to avoid conflict as between one another - they will work that out for themselves.
Spectrum scarcity is a myth. It is like the pressing problem of air scarcity. The trouble is interference, and you do not need to regulate spectrum in order to avoid interference. Solving the interference problem is left as an exercise for the reader, but the hint in the back of the book says something about leveraging time.
No definition of parody includes acts intended to deceive or acts reasonably likely to deceive. This was apparently intended to deceive, and certainly it was reasonably likely to deceive. No parody defense here. Move along.
Get your nose checked. Among other things, "US Chamber of Commerce" is self-evidently a famous mark. Thus, this dilution and disparagement falls over the line.
In any event, the test is not whether the infringer is succesful in generating money for themselves, it is whether they interfere with the TM owner's ability to participate in commerce (even in a manner that leads to no monetary gain).
This is not a "subtle" parody. It does not parody - it does not make something the Chamber is doing funny. It does not make fun of something the Chamber is doing. Instead, it is an attempt by someone who disagrees with the Chamber's view (as any rational person would) to impose their view on the Chamber. That is not cool, and definitely not funny.
The trouble is the market may not be any better at forecasting the best use of spectrum, because the price of spectrum-qua-property will not be set according to social utility, but according to commercializability. And giving someone property rights in the commons seems like bad mojo (and something I'm surprised to see you advocate).
An alternative would be to simply do away with spectrum regulation altogether. Make it legal to broadcast whatever you want however you want. This has been proposed in the past by better thinkers than me... The general thought appears to be that institutions will necessarily emerge to resolve the mythical problem of scarcity, and avoid interference.
Wait... "my guess is that the Pistols have a decent enough trademark claim here"... really? Did they ever sell ice cream under the Pistol's mark? Or food? According to the linked article, they did not file a TM application in this area until _after_ the "infringing" use appeared. I think you are being too generous, Mike: their trademark claim is, at best, hogwash (and at worst actionable hog wash).
They _may_ have a dilution claim, but it's a bit of a stretch. They have a better copyright claim, premised on the "God Save the Cream" banner which is clearly based off an old Pistol's album cover... unless the banner is a parody (certainly could be understood that way).
Agree that it's a control issue. A big part of the problem is that the studios do not want organic or viral marketing, because they want to control the timing of buzz. In part, this is because they release more than one movie a year, and more than one at a time. So they want the hype for their disappointing summer blockbuster peaking at release, just as the buzz for their fall sleeper is starting to build and the surprising December release date of their Christmas animated feature is announced. If all the buffs are tuning in to the overly flash-saturated website for their October surprise horror throwback in May, they aren't paying attention to the expensive explosions and overdone CG over which they are supposed to be salivating.
Put differently, it has its roots in a collosal failure to understand cross-marketing opportunities.
"While some are pointing out that this is the sort of thing that happens when copyright laws always seem to stack the deck against fair use, that's still no excuse for lying and trying to destroy evidence. Yes, the system sucks, but doing something like this only harms an otherwise strong case."
This is a critically important point that often seems to get missed on TD. Copyright is the law. It is a crappy law, but it is the law of the land. It is not okay to break the law, even if it is a stupid one. Instead, we should work to change it.
Fairey may not have broken the law, here - his use looks like a fair use. Unfortunately, the Congress and the Supremes have not deemed it necessary to impose a mens rea requirement on copyright infringement or present us with a clear and consistent standard, so we cannot know if any particular use (even a clearly transformative educational use that has no effect on the market for the original work) is a "fair" use until a court has spent hundreds of thousands of dollars on the question. But file sharing and other copying that appears to be condoned by some of the users of this site is clearly infringement. I support law enforcement, and even copyright owners, doing everything the law permits to enforce the law against this conduct. I just wish the law did not permit such enforcement.
While I'm on my soapbox... many thinkers on this, including Mike, start from the position that it is natural or normal to feel put upon when one sees their creative work being used by another (particularly without credit). It just ain't so, or at least it hasn't always been. It used to was that people really believed "imitation is the sincerest form of flattery". It was okay for someone to tell another person's joke, or even paint another person's painting. Indeed, attribution was the real problem - when people became irate it was not because they saw Jack selling his copy of Jill's painting as Jack's original work, it was because they saw Jack selling his copy of Jill's painting _as Jill's_ original work.
Well... no. The claim is not breach of contract, but tortious interference, concealment of material facts (aka fraud), and unfair business practices (generally, deceptive practices). These are all tort claims - they are not about the content of a contract, but about a general standard of care.
Generally, interference is not an available tort claim if the contract with which the tortfeasor allegedly interfered was one to which they are a party. Unfair practices generally is available only for a consumer of goods or services. So that is a stretch to say the least. That leaves the material misrepresentation claim. For someone as sophisticated as Ms. Simon, this is going to be a _very_ tough claim to make out, particularly if the contract had a merger or integration clause (it did, I'm sure).
Gad. She's so vain to think she would have sold more than 140k if they had pushed her drek harder. She expects she can just sit around in anticipation, and Starbucks will feed her sales? There isn't half a chance of such a thing, even if you're a legend in your own time: your talent, not your marketing staff, must generate your sales. Apparently, you better not tell her that you are going to put her album in your stores - it might lead to a lawsuit later.
But then, nobody does this sort of silliness better. From what I have read, Carly hales from a line of copyright maximalists and, for her own part, (in near perfect contrast to her husband) is known to be averse to stage performance. She makes her living from recordings, because other models would not work for her. This sort of misguided litigeousness seems to go hand-in-glove with a bent toward IP stupidity.
The clear law is that, as a rule, model releases and location releases are unnecessary. They protect a (largely mythical) right of publicity or privacy, which simply is not recognized in many jurisdictions. Where it is recognized, it generally only extends to celebrities, and then only to a limited extent. There is no right of privacy to protect one's publicly available image acquired in public. That is, preserving with a camera what one appropriately saw with one's eyes is not tortious.
It may be a breach of contract. The back of the ticket to an Olympic event might well say that the IOC reserves any right to commercial use of any photographs.
There is an implicit, and wrong, assumption here - namely, that there ought to be punishment at all. Copyright is an entirely artificial construct, and a recent one. It self-evidently did not arise as a matter of natural law. Generations (hundreds of 'em) did not have it. To say the fines are high because lower fines would only encourage more "thieving" is to say that society ought not encourage distribution of its creative products. That is stupid. Of course society should encourage distribution of its creative products - society is nothing more than its distribution of creative products.
Copyright law would not be good if the civil fine for infringement were fixed at $50, with no criminal liability. It would be better, but not good.
On the post: Does Bluebeat Actually Have A Legal Basis For Its Claim Of Copyright Over Beatles' Songs?
I could imagine a system that would allow someone to do this that would create a very interesting copyright question. Say BlueBeat.com has a way of taking each recorded sound out of the original recording, adding back to it all of the stuff it lost in recording, and imaging it back into space - so they are left with the raw work, as performed but not as recorded. For instance, there is a speaker in the size and shape of John's mouth placed about 5'3" off the floor of a recording booth that is emitting _exactly_ the sounds John's mouth emitted at the time of the original recording. Now the engineer mics the speaker as if it is a singer, and re-records the imaged vocal.
As far as the creative content goes, all of the originality has been sucked out of the original recording in order to create the new work, which clearly has the same amount of originality as the first recording. The interesting copyright question is whether this second work is derivative of the first recording, despite containing none of the original elements of the first recording.
On the post: PC Game Developer Pirates Own Game As Promotion
Piracy does _not_ exist.
In any event, it turns out torrent is a really good way to distribute software and (whose surprised?) a fine way to promote it, too.
Movie producers "pirate" free, crippled versions of their own movies long before the real product is even finished (let alone distributed for retail sale). They call it a "trailer," but it works more or less the same. Is Escapist's argument that they put too much of the film in the trailer?
On the post: Levi Johnston's Lawyers Threaten Twitter, Despite No Legal Basis
Don't sue the Shat!
The worst part about this whole affair is that it CONTINUES to keep Palin et al. in the news. The world will be better when this particular episode in US history scabs over.
On the post: AT&T Sues Verizon Over 'There's A Map For That' Ad Campaign
Verizon lies
In any event, both the Lanham Act and state-law "little Lanham Acts" protect against "deceptive" advertising, not just "false" advertising. Deception can include merely misleading statements. If an average, reasonable consumer might be mislead by the advertisement to believe that Verizon has more coverage than AT&T (not just 3G coverage,) than no amount of disclaimer by Verizon will cure the fact that it is misleading (if, indeed, that claim is not true). Among other things, the ad contrasts a Verizon user with an AT&T user, and suggests that the AT&T user is unable to use their mobile device at all because of the exceptionally poor coverage in an obvious urban area. This is just BS.
AT&T has a good case here. And we should be pleased that AT&T is suing for the right reason - to correct inaccuracies in the advertisement. They _could_ have sued on some whacked out infringement theory, asserting ownership or registration of "There's an app for that" and asserting that Verizon was disparaging their famous mark.
On the post: Licensing Agreements Now Covering 'The Universe' And Future Media Not Yet Developed
Of course, the broadest definition is likely something like "any 'tangible medium of expression' to which the law of copyright applies." But that may not be appropriate for every license, because it could surreptitiously sweep in some derivative work rights (which may not even be the author's to give).
It is interesting to me to see content publishers scrambling and spending time, effort, and money to try to remedy the fact that our broken copyright law has ugly and unintended consequences. When commercial actors are having to create private-law (ie - contract) remedies for the harshness and stupidity of public laws designed to protect the same commercial actors, isn't there a problem?
On the post: Copyright Dispute Leads To NFL Not Scouting College Juniors
If the article is correct, XOS intends to sue the NFL even if it buys the tapes from another vendor. The theory appears to be that XOS has an agreement with SEC teams, so if an SEC team plays a Big East team and the Big East team sells the NFL a tape of the game, XOS is entitled to something. But XOS cannot have a copyright over a tape it did not make! It must be thinking it will sue based on its agreement with the SEC... but that contract claim lies against the SEC (if anyone,) not the NFL.
This is big money stuff, and the way it is reported in the article makes exactly no sense. I think SI is the problem, here, and the real story is not quite this stupid. Anyhow, I hope that's the case.
On the post: How To Get Spectrum Back From TV For More Useful Purposes
Re: Giving the spectrum to private companies
We still have private highways, and they work. Always have. Shipping is still privately managed, at least where I live. Railroads are only public because it turns out they are not sufficiently good for the public in peacetime for private parties to pay what a ticket should cost (but having the capacity is useful in case of domestic invasion, same as public highways).
The government should be in the business of investing in public goods (ie, things that private individuals will not invest in sufficiently if left to their own devices, like cops,) and forcing individuals to internalize externalities of their conduct (ie, tort law and environmental regulation). Spectrum is not a public good - it is already freely available. Spectrum uses are not public goods - they are profitable, and people will invest in them sufficiently for them to develop. There is still a regulatory role for government in dealing with spectrum - it should force actors to internalize the external effects of their conduct - but it can fill that role without regulating uses of spectrum. It should do so.
The spectrum scarcity argument is a myth, and it is the basis for some truly bad law.
On the post: How To Get Spectrum Back From TV For More Useful Purposes
Re: It NEEDS to be OWNED by GOV
In any event, there is no reason to believe that crafty engineers will fail to find ways to avoid interference. There is no doubt that technology will look different from how it now looks, but that isn't a bad thing. Companies, even Tyco, do not need the government to tell them how to avoid conflict as between one another - they will work that out for themselves.
On the post: How To Get Spectrum Back From TV For More Useful Purposes
Re:
On the post: How To Get Spectrum Back From TV For More Useful Purposes
Re: Frequencies
On the post: Chamber Of Commerce Uses DMCA Claim Against Yes Men Prank Site
Re: Re:
On the post: Chamber Of Commerce Uses DMCA Claim Against Yes Men Prank Site
Re: Re: Re: A new "test"?
In any event, the test is not whether the infringer is succesful in generating money for themselves, it is whether they interfere with the TM owner's ability to participate in commerce (even in a manner that leads to no monetary gain).
This is not a "subtle" parody. It does not parody - it does not make something the Chamber is doing funny. It does not make fun of something the Chamber is doing. Instead, it is an attempt by someone who disagrees with the Chamber's view (as any rational person would) to impose their view on the Chamber. That is not cool, and definitely not funny.
On the post: How To Get Spectrum Back From TV For More Useful Purposes
Radio free anarchy
An alternative would be to simply do away with spectrum regulation altogether. Make it legal to broadcast whatever you want however you want. This has been proposed in the past by better thinkers than me... The general thought appears to be that institutions will necessarily emerge to resolve the mythical problem of scarcity, and avoid interference.
On the post: Sex Pistols Claiming Trademark Infringement? Because Selling Out Is So Punk Rock
They _may_ have a dilution claim, but it's a bit of a stretch. They have a better copyright claim, premised on the "God Save the Cream" banner which is clearly based off an old Pistol's album cover... unless the banner is a parody (certainly could be understood that way).
On the post: Hollywood Can't Handle Anyone Connecting With Fans... So It Contractually Tries To Stop Them
Put differently, it has its roots in a collosal failure to understand cross-marketing opportunities.
On the post: Shepard Fairey Destroys Evidence, Goodwill; Harms His Case For No Good Reason
Two unfortunate site memes
This is a critically important point that often seems to get missed on TD. Copyright is the law. It is a crappy law, but it is the law of the land. It is not okay to break the law, even if it is a stupid one. Instead, we should work to change it.
Fairey may not have broken the law, here - his use looks like a fair use. Unfortunately, the Congress and the Supremes have not deemed it necessary to impose a mens rea requirement on copyright infringement or present us with a clear and consistent standard, so we cannot know if any particular use (even a clearly transformative educational use that has no effect on the market for the original work) is a "fair" use until a court has spent hundreds of thousands of dollars on the question. But file sharing and other copying that appears to be condoned by some of the users of this site is clearly infringement. I support law enforcement, and even copyright owners, doing everything the law permits to enforce the law against this conduct. I just wish the law did not permit such enforcement.
While I'm on my soapbox... many thinkers on this, including Mike, start from the position that it is natural or normal to feel put upon when one sees their creative work being used by another (particularly without credit). It just ain't so, or at least it hasn't always been. It used to was that people really believed "imitation is the sincerest form of flattery". It was okay for someone to tell another person's joke, or even paint another person's painting. Indeed, attribution was the real problem - when people became irate it was not because they saw Jack selling his copy of Jill's painting as Jack's original work, it was because they saw Jack selling his copy of Jill's painting _as Jill's_ original work.
On the post: Carly Simon Sues Starbucks For Not Promoting Her Album Enough
Re: Re:
Generally, interference is not an available tort claim if the contract with which the tortfeasor allegedly interfered was one to which they are a party. Unfair practices generally is available only for a consumer of goods or services. So that is a stretch to say the least. That leaves the material misrepresentation claim. For someone as sophisticated as Ms. Simon, this is going to be a _very_ tough claim to make out, particularly if the contract had a merger or integration clause (it did, I'm sure).
On the post: Carly Simon Sues Starbucks For Not Promoting Her Album Enough
But then, nobody does this sort of silliness better. From what I have read, Carly hales from a line of copyright maximalists and, for her own part, (in near perfect contrast to her husband) is known to be averse to stage performance. She makes her living from recordings, because other models would not work for her. This sort of misguided litigeousness seems to go hand-in-glove with a bent toward IP stupidity.
On the post: Olympics Clarifies Problems With Flickr Photos... But Still Doesn't Make Sense
Re: Re: Re:
It may be a breach of contract. The back of the ticket to an Olympic event might well say that the IOC reserves any right to commercial use of any photographs.
On the post: Why Fining People Can Actually Increase That Activity... An Economics Lesson
Re:
Copyright law would not be good if the civil fine for infringement were fixed at $50, with no criminal liability. It would be better, but not good.
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