The trouble is that safe harbors are not nearly broad enough. Copyright infringement should not be a strict liability offense, and civil liability certainly should not be premised on strict liability. Unknowing or merely negligent infringements should never be the basis for civil or criminal liability. And vicarious liability should require not merely knowledge, but intent. If that were the case, then the DMCA "safe harbor" provision would be unnecessary - innocent ISPs would be protected from outrageous liability claims unless they set up their service intended to induce copying. That they knew copying might occur, or even that they knew copying probably would occur, would be largely irrelevant.
Incidentally, the notice/take-down provisions of the safe harbor are plainly ridiculous. For any other alleged offense, in order to get the alleged offender to stop allegedly offending, one must get a court order (namely, an injunction). For instance, if someone opens a candy store across the street from your candy store and posts a big sign in the window saying that studies have shown that the candy you sell is a carcinogen, you must obtain an injunction if you want to compel them to take down the sign. The standard for obtaining one is high, but far from impossible. The standard is set that way because having private citizens arbitrarily declare what other private citizens can and cannot do is a big deal. But the notice standards don't even come close to the standards required for an injunction. Why is that? What is it about putative copyright holders that makes it more important for society to enforce their desire that people stop doing something than it is to enforce the store owner's desire that his competitor stop lying in order to undermine his market?
There were lobbyists on both sides. ISPs were well-represented, and almost got the DMCA killed. Rather than allow that to happen, Disney gathered everyone in a room and hammered out the law as it is. It was then presented to Congress. Rinse and repeat. This process occurred several times before the law was finally passed.
The trouble is that you did not have a lobbyist. Content users were entirely unprotected. As James Boyle has put it from time to time, no one was there representing the public domain.
Tragic, but not unexpected. One of many tragedies of our "justice" system is that the costs of defense are so high, many suits settle just to avoid the expense and nuisance (even if, as here, the victory is legally certain). Another of the tragedies is that a legally certain victory is not actually certain, because a judge's upset stomach or a jury's sympathy or confusion may lead to an incorrect result. As a result, fighting "on principle" is incredibly expensive, and usually impractical.
Haven't looked, but it may be a service mark issue (not a trademark,) in which case the marketable service is presumably reporting and counseling.
If "frugalista" is used as an adjective, I agree with you as to its use as a descriptive word. If it is used as a title, I disagree. "I am the Frugalista!" does not make "frugalista" descriptive. The trouble, here, is that "frugalista" is clearly _generic_. Generic words cannot be trade- or service-marks.
Incidentally, descriptive words _can_ be trademarks, once they acquire secondary meaning. Think of it this way: Blue Jean Babies might be a line of stuffed dolls made from denim. "Blue Jean Babies" is merely descriptive of the dolls - they are blue denim depictions of babies. But if the manufacturer is able to infuse that with secondary meaning, so people associate "Blue Jean Babies" with a particular source or origin, then they can register the mark.
Misdescriptive words often cannot, and deceptively misdescriptive words never can be registered. There is a (mostly funny) argument that "frugalista" is deceptively misdescriptive of anyone who would pay what it costs (generally around $3500+) to obtain a trademark registration on a generic word.
Lily apparently argued that 50 cent should not permit downloading of his music, because it undermined other people in the music business (namely, his roadies and producer). Since the roadies and producer do not get paid from royalties, she must have meant that to the extent the music industry loses business due to filesharing, it will be unable to recover production costs and producers will lose their jobs.
Presumably, TD recovers production costs (like CPU cycles, bandwidth, sys-admin time, etc.) through a revenue stream driven by page views. Allen unquestionably took some page views. Same same.
Admittedly, the _amount_ of harm is likely much smaller. But that is a distinction in degree, not in kind.
Hrm. I found his response to be funny and insightful. Maybe I am becoming an old curmudgeon.
Haven't read the book, and likely won't. To the degree it says what he says it says, I think he is likely dead on... except for copyright. The machine culture has changed the world dramatically, and not in uniformly positive ways. Incidentally, that view is (or should be) independent of political bent: industry has not been a friend to the environment that the left would protect, any more than it has been healthy for the culture the right (and apparently Helprin in particular) cherishes. The glory of this century is the achievement of individual rights. One of its downfalls is the abandonment of individual responsibility.
The trouble is that Helprin mistakes the role of copyright, because he confuses copyrights with property rights. As he admits he did not understand the scope or complexity of the issue before delving into it, this should not come as a surprise.
Lets at least be fair about his argument. He said the digital revolution (not copyright) would be good, if it led to increased production of outstanding creative works. Instead, he says, it led to cultural changes that bother him. One reviewer implied that he didn't know what he was talking about because the digital revolution came after the cultural change, to which Helprin responded that the culture change started earlier, at the beginning of the machine age, and quoted contemporary authors for his evidence. You may disagree with him as to whether the digital revolution has led to increased creativity, but his argument at least seems valid (if not perfectly sound).
The UDRP is not exclusive. You agree to be bound by it - so if the process is started, you will have to comply with the result - but that is not the same thing as making it an exclusive forum for all disputes.
Put differently, _that_ is not why this is a silly case.
This will _not_ be a wake-up call, any more than Winnie-the-Pooh.
The rationale, incidentally, makes sense. It alleviates one of the complaints about the copyright system - that it compensates the wrong people. Say you write a book. You get a $500 advance plus 7% royalties, and a similar piece of any derivative works. After expenses, you realize, say, 2% of the cover price. The book becomes a massive best-seller. You make some money, the publisher makes a lot more.
Not only does the book keep producing, but for 35 years it is a huge deal. You keep making some money, but less and less as derivatives of derivatives and massive expenses dilute your royalty. Now, assuming anyone is entitled to keep pulling in cash, why would it be the publisher? That allocation seems the _most_ likely to result in unfair transfer payments with no increase in the incentive to create.
Incidentally, the notice came out now because it is required to come out between two and 10 years before the effective date of the termination. Five years is not an uncommon window. They may well have figured that there will be ugly litigation, and they want to get that started right away.
The English rule exists in some places and arenas in the US, as well. The trouble is, very often plaintiffs have very little money. We call them "judgment-proof" plaintiffs. So they file a suit, you defend it (at great cost) for two years, then they lose. They appeal, and lose some more. You get a judgment against them for your attorney fees, and they... up and die.
If Mike is right that this litigation strategy is a "bet the farm" tactic by a company that is not seeing enough revenue from its legitimate business (perhaps because it overextended itself buying cheap and worthless patents,) then it will not survive long past the end of the litigation if it loses.
BTW - don't think that just because the patents are worthless there won't be a settlement. Instead, remember that before RIM settled for $612.5mm, it had already been determined that 6 of the 7 patents at issue were invalid, and the 7th was inches from an invalidity determination. It behooved RIM to settle, leaving the 7th patent intact and exclusively licensed to RIM (the argument that the invalidity determination came "too late" to affect the judgment in district court is horse pucky).
Don't blame the messengers of bad patent policy. The examiners are just doing their best to earn a buck, like the rest of us. The trouble is the patent system is b0rkn. If you want bowels, send herring to Congress.
Without reading the C&D myself it is hard to say, but if it says what the lawyer says it says it sounds pretty reasonable: go ahead with your show, but do not say anything false or defamatory. That's just plain good advice, and free to boot.
My guess is that Piven's lawyers were just being cautious, to let people know they were watching the production and it would not fly under the radar. For better or worse, people often do horrible things when they think no one is looking.
This suit would not have been precedent setting, or even terribly legally interesting. The chorus of the Coldplay song is strikingly similar to the verse of the Satriani song - not just melody, but melody, harmony, time signature, tempo, and rhythmic feel. And Satriani is one of, if not the, most successful guitar instrumentalists alive. He has played this song in concert for over a decade. So there was access and substantial similarity, and could have been a judgment for Satriani (Coldplay may have had good defenses - I have not read about any).
Moreover, Satriani('s camp) wrote to Coldplay('s camp) about the issue several times before filing the suit. So there was an opportunity for an informal, civil solution. Coldplay never responded until after the suit was filed.
Under the law as it is, this was a good case. That is too bad. Thank heavens it settled before an unfortunate result was obtained in court.
Statutory fair use in the U.S. includes only certain uses "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research". On her best days, I do not think Ellen is teaching or reporting the news - she is an entertainer.
Unfortunately, the purpose of the use is heavily emphasized in fair use analysis (elevating form or substance,) and is the reason that parody may be fair use but pastiche may not. On the other hand, the Constitutional purpose of copyright is largely ignored in discussions about whether to expand or contract the monopoly it provides.
I seriously doubt that there were payoffs, but Disney did participate aggressively in both the DMCA and the 1998 Copyright Term Extension Act. Someone (Karjala?) created a graph showing the dates of copyright term extensions as compared with the date that Disney's "Steamboat Willie" (the first instance of Mickey Mouse singing in sync with the film) would enter the public domain under the status quo copyright regime. Consistently, as Mickey gets close to the public domain, he is "rescued" by Congress.
In an interesting aside, several people, beginning with Karjala, have demonstrated that "Steamboat Willie" was probably in the public domain at the time of publication, because the required copyright formalities were not observed.
ASCAP/BMI use sampling to decide what royalties are due. Take radio stations - ASCAP/BMI listen to radio stations, and write down every song that is played for some period of time (mechanically, this is not correct, but it is good shorthand). Then they multiply the number of times the song was played by a conversion factor (based on the size of the radio station, its format, etc.) that gives them a number of "credits." The credits decide what portion of royalties that author gets. For live performances, ASCAP/BMI sample the 200 big tours, plus advertised classical music concerts and recitals. Again, they figure credits, and divide the royalties charged to each venue by the credits that were collected.
But this doesn't mean ASCAP/BMI are not screwing the little guy. They are, they are just more subtle than having a policy of denying payment to small acts. The trouble is that there is pretty obvious sample bias. Radio stations and big tours will tend to play music by popular artists. That does not mean that less popular artists' music is not being performed, merely that it is not being performed in the venues from which ASCAP/BMI choose to sample.
The problem, here, is with the concept of "ownership". You are not the "owner" of an idea, or a creative expression. You might be the author - the person who discovered the idea, or expressed it - and we can agree or not as to whether that should give you any special rights to it. But it is not property, and you cannot "own" it.
Actually, substantial similarity plus access to the work is often sufficient to prove infringement. In the OP's hypothetical, a competent plaintiff's lawyer would sue and demand the mail logs from the agency. If there were none, he would depose the agency's staff, including the agent but also including the receptionist. Hourly wage office staff rarely have a good enough incentive to expose themselves to criminal liability for perjury.
That is not to say that it is easy, but it is possible. The deeper issue, here, is that the OP is not actually complaining about attribution, but about payment. Presumably the screenplay author would not be satisfied if the studio said, "Thanks!", produced the movie, listed his name as the author of the screenplay, and paid him nothing.
I am not sure I agree that attribution needs to be protected, but if it does it seems to me that the way to protect it is by requiring attribution, not by restricting distribution.
To be sure, care would have to be taken or this quickly becomes unworkable. For instance, it should only be necessary to name the immediately prior source, not every source. If Ansel Adams took a picture of the moon over Hernandez, New Mexico, and Joe Dokes recreated the image on 35mm film, and Trace Schmitt wrote a song about spilling beer on his Joe Dokes print of the moon, and MC Foto created a maship of the Schmitt song, the independent director who produces a film containing the mashup should only have to credit MC Foto. But, with appropriate limits, it could be done.
Copyright is really bad at doing this, incidentally. Say you write a book, and assign the copyright to a publisher. The publisher can now publish the book without _any_ attribution, or with attribution to anyone. Nothing in copyright protects your right to attribution.
On the post: Time For A Quick Lesson In Why The DMCA Safe Harbors Are Important And Make Sense
Re:
Incidentally, the notice/take-down provisions of the safe harbor are plainly ridiculous. For any other alleged offense, in order to get the alleged offender to stop allegedly offending, one must get a court order (namely, an injunction). For instance, if someone opens a candy store across the street from your candy store and posts a big sign in the window saying that studies have shown that the candy you sell is a carcinogen, you must obtain an injunction if you want to compel them to take down the sign. The standard for obtaining one is high, but far from impossible. The standard is set that way because having private citizens arbitrarily declare what other private citizens can and cannot do is a big deal. But the notice standards don't even come close to the standards required for an injunction. Why is that? What is it about putative copyright holders that makes it more important for society to enforce their desire that people stop doing something than it is to enforce the store owner's desire that his competitor stop lying in order to undermine his market?
On the post: Time For A Quick Lesson In Why The DMCA Safe Harbors Are Important And Make Sense
Re: Accident?
The trouble is that you did not have a lobbyist. Content users were entirely unprotected. As James Boyle has put it from time to time, no one was there representing the public domain.
On the post: Frugalista! Frugalista! Frugalista! Now... Where's My Cease And Desist?
Re:
On the post: Frugalista! Frugalista! Frugalista! Now... Where's My Cease And Desist?
Re:
If "frugalista" is used as an adjective, I agree with you as to its use as a descriptive word. If it is used as a title, I disagree. "I am the Frugalista!" does not make "frugalista" descriptive. The trouble, here, is that "frugalista" is clearly _generic_. Generic words cannot be trade- or service-marks.
Incidentally, descriptive words _can_ be trademarks, once they acquire secondary meaning. Think of it this way: Blue Jean Babies might be a line of stuffed dolls made from denim. "Blue Jean Babies" is merely descriptive of the dolls - they are blue denim depictions of babies. But if the manufacturer is able to infuse that with secondary meaning, so people associate "Blue Jean Babies" with a particular source or origin, then they can register the mark.
Misdescriptive words often cannot, and deceptively misdescriptive words never can be registered. There is a (mostly funny) argument that "frugalista" is deceptively misdescriptive of anyone who would pay what it costs (generally around $3500+) to obtain a trademark registration on a generic word.
On the post: Lily Allen, Don't Apologize To Me, Apologize To Everyone Else
Re: Re: I'm not coming here anymore...
Presumably, TD recovers production costs (like CPU cycles, bandwidth, sys-admin time, etc.) through a revenue stream driven by page views. Allen unquestionably took some page views. Same same.
Admittedly, the _amount_ of harm is likely much smaller. But that is a distinction in degree, not in kind.
On the post: Mark Helprin: All The Reviews Of My Book Sucked Because Publishers Assigned The People I Insult To Review It
Haven't read the book, and likely won't. To the degree it says what he says it says, I think he is likely dead on... except for copyright. The machine culture has changed the world dramatically, and not in uniformly positive ways. Incidentally, that view is (or should be) independent of political bent: industry has not been a friend to the environment that the left would protect, any more than it has been healthy for the culture the right (and apparently Helprin in particular) cherishes. The glory of this century is the achievement of individual rights. One of its downfalls is the abandonment of individual responsibility.
The trouble is that Helprin mistakes the role of copyright, because he confuses copyrights with property rights. As he admits he did not understand the scope or complexity of the issue before delving into it, this should not come as a surprise.
Lets at least be fair about his argument. He said the digital revolution (not copyright) would be good, if it led to increased production of outstanding creative works. Instead, he says, it led to cultural changes that bother him. One reviewer implied that he didn't know what he was talking about because the digital revolution came after the cultural change, to which Helprin responded that the culture change started earlier, at the beginning of the machine age, and quoted contemporary authors for his evidence. You may disagree with him as to whether the digital revolution has led to increased creativity, but his argument at least seems valid (if not perfectly sound).
On the post: Kentucky's Attempt To Seize Gambling Domain Names Goes To State Supreme Court
Re: Re: he can huff and puff
On the post: Kentucky's Attempt To Seize Gambling Domain Names Goes To State Supreme Court
Re: he can huff and puff
Put differently, _that_ is not why this is a silly case.
On the post: Heirs Of Comic Book Artist Alert Everyone They Want Their Copyrights Back
The rationale, incidentally, makes sense. It alleviates one of the complaints about the copyright system - that it compensates the wrong people. Say you write a book. You get a $500 advance plus 7% royalties, and a similar piece of any derivative works. After expenses, you realize, say, 2% of the cover price. The book becomes a massive best-seller. You make some money, the publisher makes a lot more.
Not only does the book keep producing, but for 35 years it is a huge deal. You keep making some money, but less and less as derivatives of derivatives and massive expenses dilute your royalty. Now, assuming anyone is entitled to keep pulling in cash, why would it be the publisher? That allocation seems the _most_ likely to result in unfair transfer payments with no increase in the incentive to create.
Incidentally, the notice came out now because it is required to come out between two and 10 years before the effective date of the termination. Five years is not an uncommon window. They may well have figured that there will be ugly litigation, and they want to get that started right away.
On the post: Paltalk Sues Pretty Much Every Multiplayer Gaming Company Over Patents
Re: Re:
If Mike is right that this litigation strategy is a "bet the farm" tactic by a company that is not seeing enough revenue from its legitimate business (perhaps because it overextended itself buying cheap and worthless patents,) then it will not survive long past the end of the litigation if it loses.
BTW - don't think that just because the patents are worthless there won't be a settlement. Instead, remember that before RIM settled for $612.5mm, it had already been determined that 6 of the 7 patents at issue were invalid, and the 7th was inches from an invalidity determination. It behooved RIM to settle, leaving the 7th patent intact and exclusively licensed to RIM (the argument that the invalidity determination came "too late" to affect the judgment in district court is horse pucky).
On the post: Paltalk Sues Pretty Much Every Multiplayer Gaming Company Over Patents
Re: These frakin' frakers are fraked!
On the post: Jeremy Piven Sends Cease & Desist To Stop Play From Mocking Him
Seems reasonable to me
My guess is that Piven's lawyers were just being cautious, to let people know they were watching the production and it would not fly under the radar. For better or worse, people often do horrible things when they think no one is looking.
On the post: Satriani And Coldplay Settle Lawsuit Over Melody... Which Is Really Too Bad
Glad it settled
Moreover, Satriani('s camp) wrote to Coldplay('s camp) about the issue several times before filing the suit. So there was an opportunity for an informal, civil solution. Coldplay never responded until after the suit was filed.
Under the law as it is, this was a good case. That is too bad. Thank heavens it settled before an unfortunate result was obtained in court.
On the post: New Infringement Defense? 'We Don't Roll That Way'
Fair use?
Unfortunately, the purpose of the use is heavily emphasized in fair use analysis (elevating form or substance,) and is the reason that parody may be fair use but pastiche may not. On the other hand, the Constitutional purpose of copyright is largely ignored in discussions about whether to expand or contract the monopoly it provides.
On the post: The Real Problem With The Google Book Settlement Isn't The Settlement, But Copyright Law Itself
Re: Root cause?
In an interesting aside, several people, beginning with Karjala, have demonstrated that "Steamboat Willie" was probably in the public domain at the time of publication, because the required copyright formalities were not observed.
On the post: How Performing Rights Groups Funnel Money To Top Acts And Ignore Smaller Acts
Re: Re: Re: Re: They Monitor the Top 200
On the post: How Performing Rights Groups Funnel Money To Top Acts And Ignore Smaller Acts
Re: Re: Re: They Monitor the Top 200
But this doesn't mean ASCAP/BMI are not screwing the little guy. They are, they are just more subtle than having a policy of denying payment to small acts. The trouble is that there is pretty obvious sample bias. Radio stations and big tours will tend to play music by popular artists. That does not mean that less popular artists' music is not being performed, merely that it is not being performed in the venues from which ASCAP/BMI choose to sample.
On the post: Lord Kames Explains Why Copyright Is Not Property... In 1773
Re: Re: Re: Attribution
On the post: Lord Kames Explains Why Copyright Is Not Property... In 1773
Re: Re: Re:
That is not to say that it is easy, but it is possible. The deeper issue, here, is that the OP is not actually complaining about attribution, but about payment. Presumably the screenplay author would not be satisfied if the studio said, "Thanks!", produced the movie, listed his name as the author of the screenplay, and paid him nothing.
On the post: Lord Kames Explains Why Copyright Is Not Property... In 1773
Re: Re: Re:
To be sure, care would have to be taken or this quickly becomes unworkable. For instance, it should only be necessary to name the immediately prior source, not every source. If Ansel Adams took a picture of the moon over Hernandez, New Mexico, and Joe Dokes recreated the image on 35mm film, and Trace Schmitt wrote a song about spilling beer on his Joe Dokes print of the moon, and MC Foto created a maship of the Schmitt song, the independent director who produces a film containing the mashup should only have to credit MC Foto. But, with appropriate limits, it could be done.
Copyright is really bad at doing this, incidentally. Say you write a book, and assign the copyright to a publisher. The publisher can now publish the book without _any_ attribution, or with attribution to anyone. Nothing in copyright protects your right to attribution.
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