Silver lining: Dude in the news article comments offered to buy the girls tickets to the water park that they were raising funds to gain entrance to in the first place. But overall, this continues the long and proud American tradition of rigorously enforcing trivial laws and making plenty of exceptions to the most important, high-level ones.
Historically, I think you're right. I was referring less to ICE's proper mission and more to the contours of what we knew Operation In Our Sites to be. My understanding of the program's basic premise was that copyright owners didn't like bothering with traditional due process in "blatant" cases of infringement and wanted something more expeditious, so ICE stepped in to provide that. But with trademark infringement, I know you've got the UDRP to expedite the cancellation or transfer of infringing domain names [which all these new sites seem like they'd fall prey to], so I don't see why a non-traditional seizure was necessary. Although I guess ICE can target infringing sales on top of infringing domain names? My memory of the system is a little foggy, especially at 4am. But since it's still cutting out all adversarial hearings, it's shady no matter how you slice it.
Aren't there already expedited procedures for seizing domain names engaged in trademark infringement? The UDRP? Why is ICE getting involved outside copyright disputes now? (Not that they have any business in copyright either, but now they don't even have the lack of an accelerated system for the relevant rights holders to justify their seizures.)
Hah, I didn't know the Eighth was so far behind. The Second Circuit definitely has the Ninth beat when it comes to clear methodology, though. One of my professors actually asked Kozinski if the Ninth would ever be willing to admit they've butchered infringement analyses beyond repair and just nick the Second's system instead. The response didn't seem to be a receptive one. Meanwhile, the firm I work at is basically abandoning its copyright litigation practice in California due to the fact that it's simply impossible to discern what a successful claim looks like anymore.
In my experience, it's actually been more convoluted than that. For example, the Ninth Circuit used Metcalf v. Bochco in 2002 to try to harmonize the two types of cases [ones that filter versus ones that don't] by saying filtration cases [like Cavalier v. Random House] did not address the protectability of the selection and sequence of generic elements, only random similarities scattered throughout the works. But even when plaintiffs allege a concrete pattern of similarities (like in 2006's Funky Films v. Time Warner), the courts can always choose to play fact-finder and distinguish the works themselves instead of letting it go to trial. They've also started playing this weird game where they don't apply the selection and arrangement test unless the facts are analogous to Metcalf's [high level of similarity plus admitted access], which has no basis in Feist or any other prior case law I've found. The new jurisprudence often seems to fly in the face of old copyright principles, but without having the balls to actually overrule said principles. That's why I don't blame some plaintiffs for bringing duds to court -- the case law can really mislead them at times.
This is where copyright law is super muddled. Some case law says that when you look for infringement, you have to subtract all the elements of the works that are individually unprotectable, then compare only the elements that are left. Other cases say that even where individual elements are not copyrightable, a particular concrete pattern that they form can be copyrightable. This is the "selection and arrangement" test, colloquially. It goes back many decades and was used by the Supreme Court in the Feist case to explain what is protectable about factual compilations. Ever since then, law firms have tried to shape the contours of selection and arrangement to fit cases where arguably there are only lots of ideas being copied. It rarely works, though. Most of these cases are tossed out. But damned if plaintiffs don't keep trying anyway.
That last sentence is the takeaway. I often have to explain to people with incredulous looks on their faces that, if the content industry had their way, we never would have even had the VCR. And we want to trust these people to gauge whether new technologies and services are legal on their say-so alone? What a joke.
"[C]opyright protection is designed 'To promote the Progress of Science and useful Arts,' and the financial reward guaranteed to the copyright holder is but an incident of this general objective, rather than an end in itself."
~ Accord Rosement v. Random House, 366 F.2d 303 (2d Cir. 1966)
Enjoyed the piece, but I think there might be an error -- the claim that Mickey Mouse was set to go PD in 1956 (28 years after its creation) seems to be based on the belief that copyright was still operating a 14-year initial term with a 14-year renewal term. To my knowledge, the 1909 Act changed this to a 28-year initial term with a 28-year renewal term, so there was not yet any need for legislative hand-wringing. That only came around in 1998, when Mickey was on the verge of exhausting his cumulative 75-year term under the 1976 Act. That's when Sonny Bono stepped in to extend all existing protection another 20 years.
I'm interested to see how the MPAA and similar organizations react to this. They've been incredibly petulant up until now regarding any opposition to PIPA. They accused Wyden of playing cheap, underhanded political games [basically grandstanding for piracy-lovers], they accused Demand Progress of just being pirate shills -- I wonder if and how they'll try to marginalize two leading journalistic outfits' concerns. If they use the same tact they've been doling out up until now, they'll do wonders to marginalize their own voice in every similar debate going forward.
Not all illegal things are equivalent. When we discuss copyright law, we talk about the trade-off it needs to maintain between incentivizing authors and not chilling speech/expression/progress. You can infringe copyright accidentally, thinking you're using a work fairly or that the act is somehow authorized. I don't believe there is any similar "out" when you've linked to child porn.
Yes, potentially. One of the 17 USC 106 rights is to control the public performance of a copyrighted work in any place open to the public or where a substantial number of people outside the normal friend/family circle are gathered. This goes for whether you are charging people or not. Though curiously enough, sound recordings have no general public performance right -- only when they're performed via digital transmission [i.e. internet streaming]. So by blasting your car stereo really loud, you'd only be liable [if at all] to the publishers who own the song compositions.
Fair use is a last resort, an affirmative defense you don't get to rely on until you get dragged into court. If someone doesn't have the resources to risk going to court at all, they will choose not to speak rather than rely on a court determination of fair use. Thus, copyright will have chilled speech, fair use not withstanding. Not really the greatest safety valve if Promoting the Progress is copyright's chief goal.
Exactly. Convenience is a huge advantage for rights holders to leverage. But that's also why I think said rights holders need legal tools to fight piracy, even knowing it can't be wiped out completely -- by making piracy difficult and somewhat treacherous, they make the legal offering [so long as it's relatively pain-free] more compelling. Where I get riled up is when rights holders push for legal tools that, while more effective than current ones, begin to stomp on individual liberties and stifle innovation. Rights holders deign to recognize the balance they need to strike, and this failure is what undermines so much of what is otherwise a sympathetic cause.
Yep. I'm very curious to see how it plays out. Obviously, it'll all come down to how much the courts feel comfortable expanding Cablevision, which in turns banks on whether they feel Cablevision was rightly decided.
One of my professors was signed on to an amici brief against the Cablevision decision, feeling that it misread the applicable section of the Copyright Act [I believe his reasoning was that the law specifies streaming a work to the public rather than a copy, so the focus on "one customer, one copy" didn't seem right]. Since the new breed of streaming services are dead-set on testing the limits of the Cablevision argument, I guess we'll see if the courts want to try and close Pandora's Box or embrace what they've started.
Me, I think we just need to rewrite the damn Copyright Act again, because judicial and legislative band-aids are not helping the 1976 one's fundamental principles jive well with the realities of modern tech. (But then, of course, any rewrite comes with the inherent risk of letting legacy industries screw things up even more...)
The factors are in no way listed in order of importance. Different cases stress different prongs as having greater or lesser weight, depending on the facts present. Whether the work is commercial or not is by no means dispositive. Look at the specifically enumerated examples of what can be fair use under Section 107 -- it includes news reporting, does it not? Isn't most news reporting done commercially? If everything had to be noncommercial, it would be utterly incongruous to specifically enumerate a largely commercial activity as one of the "classic" cases of fair use.
On the post: Once Again, Law Enforcement Protects Us From The America-Destroying Scourge Of Children With Lemonade Stands
On the post: Lawyer Trying To Trademark Bitcoin Threatens Techdirt With Bogus DMCA Takedown
On the post: Why Hasn't ICE Been Talking About Its Latest Domain Seizures?
Re: Re:
On the post: Why Hasn't ICE Been Talking About Its Latest Domain Seizures?
On the post: What Idea/Expression Dichotomy? Microsoft Sued For Having Sorta Similar Commercials
Re: Re: Re: Re:
On the post: What Idea/Expression Dichotomy? Microsoft Sued For Having Sorta Similar Commercials
Re: Re:
On the post: What Idea/Expression Dichotomy? Microsoft Sued For Having Sorta Similar Commercials
On the post: How Low Has MySpace Sunk? It's About To Be Sold For Less Than $30 Million
On the post: MPAA Directly Lobbies Law Enforcement To Be Its Own Private Police Force
On the post: Copyright Holders Claim That They Should Get To Decide Any Copyright Exceptions
I like to keep this quote handy.
~ Accord Rosement v. Random House, 366 F.2d 303 (2d Cir. 1966)
On the post: A Filmmaker Explains Why Copyright Sucks Today: An Excerpt From 'Sell Your Own Damn Movie!
On the post: NYTimes & LA Times Come Out Against PROTECT IP Act As Written
On the post: Lies, Damned Lies And Facebook Evidence Get FBI Involved In Divorced Couple's Spat
On the post: Police Arrest A Bunch Of Folks In Europe For Linking To Infringing Content
Re: Re: Re:
On the post: Censorship vs. Copyright
Re:
On the post: Censorship vs. Copyright
Re: Re: Re: Re:
On the post: More People Realizing That Infringement Can't Be Stopped, So Learn To Embrace It
Re: Some people will always pay for convenience
On the post: BMI Says A Single Person Listening To His Own Music Via The Cloud Is A Public Performance
Re: Re: Re: Re: The following two cases ....
One of my professors was signed on to an amici brief against the Cablevision decision, feeling that it misread the applicable section of the Copyright Act [I believe his reasoning was that the law specifies streaming a work to the public rather than a copy, so the focus on "one customer, one copy" didn't seem right]. Since the new breed of streaming services are dead-set on testing the limits of the Cablevision argument, I guess we'll see if the courts want to try and close Pandora's Box or embrace what they've started.
Me, I think we just need to rewrite the damn Copyright Act again, because judicial and legislative band-aids are not helping the 1976 one's fundamental principles jive well with the realities of modern tech. (But then, of course, any rewrite comes with the inherent risk of letting legacy industries screw things up even more...)
On the post: BMI Says A Single Person Listening To His Own Music Via The Cloud Is A Public Performance
Re: Re: The following two cases ....
On the post: Origami Creators Sue Artist For Copyright Infringement Concerning Crease Patterns
Re: Re: Re:
Next >>