You of course understand that there is a basic difference between your CD (limited license copy) and the banksy spray painting (original, one of a kind, unique). Your comparison doesn't work because the things aren't in the same class of ownership.
My ownership of a CD is not a "limited license copy." I did not agree to any kind of license when I bought it. I own it outright, and - barring copyright restrictions - could do anything I wanted with it. Just like the owner of the wall that was spray-painted by Banksy.
It's true that the copyright-created rights in the two properties are different. For instance, I can destroy my CD, but the building owners cannot destroy the artwork on their wall.
But that is not the point. My point was that both the building and the CD are property of the owners, and copyright grants some form of ownership interest in both - not through any kind of voluntary agreement, but imposed by law. That the rights are distinct does not make this any less true.
Stature really doesn't matter, because he intentionally creates his works (a) where he does not have permission
Sony Records does not have my permission to have rights over my Ke$ha CD. But they do.
Permission of the property owner doesn't matter. That's the entire point.
and (b) where they are very likely to be destroyed. It's like being a chalk artist and then demanding that rain be banned so your work won't get washed away.
The copyright statutes explicitly exempt stuff like this. They only prevent intentional distortion, mutilation, or destruction by the property owner.
Trying to compare Banksy's vandalism to this work is sort of far fetched, don't you think?
Not in the least. Whether or not you think of his art as "vandalism," there is no question that the art world considers him a legitimate artist, and his artworks as bona fide works of art to the same (legal) degree as Picasso's.
This makes his "vandalism" works "of recognized stature," in the words of the copyright statutes.
And, the copyright statutes provide that an artist has the right "to prevent any destruction of a work of recognized stature, and any intentional [...] destruction of that work is a violation of that right."
The building owner's choice doesn't enter into the equation.
As the owner of a building that might be vandalized by one of Banksy's works, you are totally in your right to remove it, to chip down the section of wall and sell it, or to just plain paint over it.
According to the copyright statutes, no, you are not within your rights do do any of those things.
This just shows how copyright is not exactly a "property right." It consists of statutory rights that are created over other people's property. They are created by law, not by consent of the property owners.
Regarding the present case, however: I don't think the NYLC has a case, because they're not in a position to enforce any of those rights. The statutes say:
(b) Scope and Exercise of Rights. - Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner.
(e) Transfer and Waiver. - (1) The rights conferred by subsection (a) may not be transferred [...]
So, the only one who could possibly prevent the destruction of the painting is Picasso himself.
Are you implying that Ansel Adams was not creative?
Whether something is creative is a separate issue than whether it is (or should be) protected by copyright.
Sure, photographers are creative, but that's not the point. The purpose of copyright is to act as an incentive to create and distribute. If those photographs would have been created and distributed without copyright protection, then they shouldn't have copyright protection.
And, in this case - when it's a straightforward, non-creative reproduction of an already-existing work - then the photographs don't deserve such protection.
And, under the law, they don't have such protection. The photographs themselves absolutely are in the public domain. The library could restrict access to them, just exactly as they restrict access to the works themselves. But they cannot, legally, place any restrictions over what happens to reproductions of those photographs.
I would not say that by the mere fact of an interface being an "operating system call", it does not obtain copyright protection; it would depend upon whether that interface is to things that were original, creative choices made by the operating system programmers.
The API is nothing other than the specification of those system calls. The "things that were original, creative choices" in your case would be the implementation of the API. That is the "thing" that responds "to" those API calls. And that "thing" was implemented from scratch by Google.
For example, a system call will not do anything without an operating system that accepts those calls. And nobody is arguing that the operating system, itself, is not copyrightable.
The argument that Oracle made - and that the Court accepted - was that the names of the system calls can be copyrighted independently of any system that implements it.
So, for example, if the Windows system accepts a system call named "clearScreen," then any other operating system (Linux, OSX, whatever) that also accepts a system call named "clearScreen" would be infringing on Microsoft's copyright. Even if the operating systems themselves share no common code whatsoever.
A literary analogy: software that implements system calls would be akin to a novel written in the English language. An API would be akin to the grammar rules of the English language.
This probably doesn't come across in the Court's ruling, because the Court doesn't seem to understand what an API actually is.
Note that there is no software available on the site at all. But, if this Court's ruling stands, that wouldn't matter. If Bjarne Stroustrup held a copyright on the API for the standard template library, that website would be infringing upon his copyright.
In Oracle v Google, Google did not reverse engineer Java
That's exactly what they did. Their implementation is a "clean room" implementation.
In CA v Altai, the court's analysis first removed the elements of the copied program that were either in the public domain, or dictated by external factors such as operating system calls
I haven't read it (yet), but when you're making an operating system call, you are making a call to the operating system's API. If an API is copyrightable, then so are those system calls. That works against your argument, if I understand it correctly.
Google should have GPLed their code
Their code is available under the Apache 2.0 license, including the Dalvik virtual machine.
The biggest culprits, though, are the legislators in Congress who have enacted such an untenable copyright regime that it provides no certainty as to what acts are permitted or prohibited, leaves well-intentioned businesses and people at risk of suffering debilitating penalties, and is doomed to waste further billions of dollars in litigation, clogging up the courts, with no sign of any attempt at correcting it.
if you think this is fair use and you support copyright in any fashion.
Fair use has been part of copyright law back when it was still common law. Arguing against fair use is arguing against copyright.
And, yes, I also believe it was fair use. Goldieblox re-recorded the whole thing, and created different lyrics, in what was obviously a parody.
Ironically, the only thing that the Beasties could have sued over was the composition... and that was "stolen" from the Isley Brothers' "Shout." (Rick Rubin, the producer of that song, has outright stated as much.)
Spotify like most companies, pays for pre-1972 recordings and are not getting sued.
I know I'm late with this, but...
Spotify isn't eligible for the type of royalties under consideration; those royalty rates are only available to non-interactive services (like Pandora and SiriusXM).
So, they already must do direct deals with the rights holders. They're not paying "royalties" at all; they're entering into direct contract negotiation with the rights holders, and those rights holders pay whatever royalties are owed to artists.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh, there are some...
Oh look, it's Karl acting like he knows what he's talking about again.
Oh, look, it's Anonymous Coward acting like he's not an apologist for the big labels that make their money solely through exploiting musicians.
Say Karl: instead of gracing everyone with your comical opinions on how things work, why not post stats- rates and figures from first-hand sources.
Okey dokey.
Of the average income from the top 35 grossing musicians from 2002, roughly 17% was from recording and performance royalties combined. (And the only ones who made more than half their money from royalties, were those artists who were also other artists' record producers.) Source: File-Sharing and Copyright (PDF), Oberholzer-Gee & Strumpf, 2009, p.44 (Table 6).
For the 5,371 respondents, the aggregated amount of income derived from sound recordings in the past 12 months was 6%. This is the same size as the aggregated income from compositions, which was also 6%. The largest pie slice was income from live performance, which accounted for 28% of survey respondents’ music-related income.
Industries with the highest levels of employment in this occupation [27-2042 Musicians and Singers]:
Performing Arts Companies: 22,500 Religious Organizations: 8,090 Independent Artists, Writers, and Performers: 1,830 Promoters of Performing Arts, Sports, and Similar Events: 1,450 Amusement Parks and Arcades: 960
- Occupational Employment and Wages, May 2012 (Note: These are the latest statistics available. These industries don't pay artists through royalties; they pay on either a wage or per-performance basis.)
The band is now 1/4 of the way through its contract, has made the music industry more than 3 million dollars richer, but is in the hole $14,000 on royalties.
A word here about that unrecouped balance, for those uninitiated in the complex mechanics of major label accounting. While our royalty statement shows Too Much Joy in the red with Warner Bros. (now by only $395,214.71 after that $62.47 digital windfall), this doesn’t mean Warner “lost” nearly $400,000 on the band. That’s how much they spent on us, and we don’t see any royalty checks until it’s paid back, but it doesn’t get paid back out of the full price of every album sold. It gets paid back out of the band’s share of every album sold, which is roughly 10% of the retail price.
If you thought the life of most musicians was comparable to the blissful and blinged-out existences of Kanye and Rihanna, you've clearly not heard much about our ever-desiccating music industry. According to the latest Nielsen research, only 2.1 percent of the albums released in 2009 sold even 5,000 copies -- that's just 2,050 records out of nearly 100,000, and to fewer people than go to a small liberal arts college.
As if that weren't bad enough, even the bands who do move units end up paying through the nose, mouth, eyes and ears for management, legal fees, producers and other expenses, leaving most of them scrounging to pay for record advances and, if they can afford it, health care.
According to the Recording Industry Association of America (RIAA), approximately 90% of the records that are released by major recording labels fail to make a profit.
- How Record Companies Make Money (Please note: Until the label makes a profit, performing artists get paid absolutely nothing from sound recording royalties.)
If we're not songwriters, and not hugely successful commercially (as in platinum-plus), we don't make a dime off our recordings. Recording industry accounting procedures are right up there with films.
Most artists never see any mechanical royalties, because the record companies have such an interesting way of accounting for all their expenses.
PM: Breakage, and all those clauses.
MS: Right, and you never see any mechanical royalties. That's why, in the late 80s/early 90s, when Beck got that huge advance, bigger than anybody had heard of, that's basically all the money he's ever gonna see from his mechanical royalties, in spite of massive sales figures. Because they always find ways of deducting costs in their accounting reports of your sales.
Today I want to talk about piracy and music. What is piracy? Piracy is the act of stealing an artist’s work without any intention of paying for it. I’m not talking about Napster-type software.
I’m talking about major label recording contracts. [...]
This story is about a bidding-war band that gets a huge deal with a 20 percent royalty rate and a million-dollar advance. [...] The record is a big hit and sells a million copies. [...] Since the original million-dollar advance is also recoupable, the band owes $2 million to the record company.
- Courtney Love does the math (unfortunately, the entire article isn't online any more - this is just the first part)
I've never made a dime from a record sale in the history of my record deal. I've been very happy with my sales, and certainly my audience has been very supportive. I make a living going out and playing shows.
If you think the fact that we have sold in excess of 2 million records and have never been paid a penny is pretty unbelievable, well, so do we. And the fact that EMI informed us that not only aren't they going to pay us AT ALL but that we are still 1.4 million dollars in debt to them is even crazier.
Now, it's your turn. Please post any reputable study - any whatsoever - that shows musicians make a living mainly through royalties, and not through the sources I mentioned.
Q) May I start a streaming service that plays only pre-1972 music and not have to worry about any royalties?
No matter what the status on state laws, you would still have to pay composition royalties to ASCAP/BMI/SESAC. These royalties have been an established part of federal law since the invention of the player piano.
Until the Internet came around, you would not have to pay sound recording royalties for performances. The only entities in the United States that have to pay these royalties are Internet and cable streaming radio stations.
Terrestrial radio stations, bars, restaurants, live venues, etc. do not have to pay sound recording royalties, and never have. Not under federal law, and not under any state law.
Re: Re: Re: Re: Re: Re: Re: Re: Oh, there are some...
programmers are paid via work-for-hire and musicians are paid via royalties.
If you make money as a musician, then it's more likely than not that you're not making your living from royalties. For the vast, vast majority of musicians, royalties pay them nothing, and the rest have always made more money from non-royalty sources like performances, teaching, endorsements, or merch.
A "sound recording" is distinct from the underlying composition. The underlying composition has been covered by Federal copyright law, for about a century. Pandora (like terrestrial radio) is, and always has, paid royalties on the underlying composition for pre-1972 recordings.
What they have not been paying are the royalties for sound recordings. Those are the royalties which go to SoundExchange (as opposed to the composition royalties, which go to ASCAP, BMI, or SESAC).
Terrestrial radio does not, and has never, paid any royalties on the sound recordings, pre-1972 or not.
On the post: Moral Rights, Property Rights And Picasso: An Artistic And Legal Conundrum
Re: Re: Re: Re: Re:
My ownership of a CD is not a "limited license copy." I did not agree to any kind of license when I bought it. I own it outright, and - barring copyright restrictions - could do anything I wanted with it. Just like the owner of the wall that was spray-painted by Banksy.
It's true that the copyright-created rights in the two properties are different. For instance, I can destroy my CD, but the building owners cannot destroy the artwork on their wall.
But that is not the point. My point was that both the building and the CD are property of the owners, and copyright grants some form of ownership interest in both - not through any kind of voluntary agreement, but imposed by law. That the rights are distinct does not make this any less true.
On the post: Moral Rights, Property Rights And Picasso: An Artistic And Legal Conundrum
Re: Re: Re:
Probably, but that is not a copyright issue.
On the post: Moral Rights, Property Rights And Picasso: An Artistic And Legal Conundrum
Re: Re: Re:
Sony Records does not have my permission to have rights over my Ke$ha CD. But they do.
Permission of the property owner doesn't matter. That's the entire point.
and (b) where they are very likely to be destroyed. It's like being a chalk artist and then demanding that rain be banned so your work won't get washed away.
The copyright statutes explicitly exempt stuff like this. They only prevent intentional distortion, mutilation, or destruction by the property owner.
On the post: Moral Rights, Property Rights And Picasso: An Artistic And Legal Conundrum
Re:
Not in the least. Whether or not you think of his art as "vandalism," there is no question that the art world considers him a legitimate artist, and his artworks as bona fide works of art to the same (legal) degree as Picasso's.
This makes his "vandalism" works "of recognized stature," in the words of the copyright statutes.
And, the copyright statutes provide that an artist has the right "to prevent any destruction of a work of recognized stature, and any intentional [...] destruction of that work is a violation of that right."
The building owner's choice doesn't enter into the equation.
As the owner of a building that might be vandalized by one of Banksy's works, you are totally in your right to remove it, to chip down the section of wall and sell it, or to just plain paint over it.
According to the copyright statutes, no, you are not within your rights do do any of those things.
This just shows how copyright is not exactly a "property right." It consists of statutory rights that are created over other people's property. They are created by law, not by consent of the property owners.
Regarding the present case, however: I don't think the NYLC has a case, because they're not in a position to enforce any of those rights. The statutes say:
So, the only one who could possibly prevent the destruction of the painting is Picasso himself.
On the post: 'Journalist' Argues In NY Times That Publishing Decisions Should Ultimately Be Made By Government
sophisticated about irrelevancies
I really have to remember that phrase. It describes far, far too many people that I have discussions with.
On the post: Metropolitan Museum Of Art Claims Copyright Over Massive Trove Of Public Domain Works
Re: Re:
Whether something is creative is a separate issue than whether it is (or should be) protected by copyright.
Sure, photographers are creative, but that's not the point. The purpose of copyright is to act as an incentive to create and distribute. If those photographs would have been created and distributed without copyright protection, then they shouldn't have copyright protection.
And, in this case - when it's a straightforward, non-creative reproduction of an already-existing work - then the photographs don't deserve such protection.
And, under the law, they don't have such protection. The photographs themselves absolutely are in the public domain. The library could restrict access to them, just exactly as they restrict access to the works themselves. But they cannot, legally, place any restrictions over what happens to reproductions of those photographs.
On the post: Why Making APIs Copyrightable Is Bad News For Innovation
Re: Re: Re: Re: Re: Begging the question
The API is nothing other than the specification of those system calls. The "things that were original, creative choices" in your case would be the implementation of the API. That is the "thing" that responds "to" those API calls. And that "thing" was implemented from scratch by Google.
For example, a system call will not do anything without an operating system that accepts those calls. And nobody is arguing that the operating system, itself, is not copyrightable.
The argument that Oracle made - and that the Court accepted - was that the names of the system calls can be copyrighted independently of any system that implements it.
So, for example, if the Windows system accepts a system call named "clearScreen," then any other operating system (Linux, OSX, whatever) that also accepts a system call named "clearScreen" would be infringing on Microsoft's copyright. Even if the operating systems themselves share no common code whatsoever.
A literary analogy: software that implements system calls would be akin to a novel written in the English language. An API would be akin to the grammar rules of the English language.
This probably doesn't come across in the Court's ruling, because the Court doesn't seem to understand what an API actually is.
If you're curious, the entire API for the C++ standard template library can be found here:
http://www.cplusplus.com/reference/
Note that there is no software available on the site at all. But, if this Court's ruling stands, that wouldn't matter. If Bjarne Stroustrup held a copyright on the API for the standard template library, that website would be infringing upon his copyright.
On the post: Why Making APIs Copyrightable Is Bad News For Innovation
Re: Re: Re: Begging the question
That's exactly what they did. Their implementation is a "clean room" implementation.
In CA v Altai, the court's analysis first removed the elements of the copied program that were either in the public domain, or dictated by external factors such as operating system calls
I haven't read it (yet), but when you're making an operating system call, you are making a call to the operating system's API. If an API is copyrightable, then so are those system calls. That works against your argument, if I understand it correctly.
Google should have GPLed their code
Their code is available under the Apache 2.0 license, including the Dalvik virtual machine.
The biggest culprits, though, are the legislators in Congress who have enacted such an untenable copyright regime that it provides no certainty as to what acts are permitted or prohibited, leaves well-intentioned businesses and people at risk of suffering debilitating penalties, and is doomed to waste further billions of dollars in litigation, clogging up the courts, with no sign of any attempt at correcting it.
On that, we certainly agree.
On the post: Goldieblox Agreed To Pay Charity $1 Million For Using Beastie Boys' Girls
Re: Re: Re: Re: Fair Use Consideration
Dude, what the fuck does that even mean? Of course they do. The 2 Live Crew case was a song, you know.
I know I shouldn't be responding to you, but seriously - you have absolutely no idea what you're talking about.
On the post: Goldieblox Agreed To Pay Charity $1 Million For Using Beastie Boys' Girls
Re: Re: Re: Re:
Fair use has been part of copyright law back when it was still common law. Arguing against fair use is arguing against copyright.
And, yes, I also believe it was fair use. Goldieblox re-recorded the whole thing, and created different lyrics, in what was obviously a parody.
Ironically, the only thing that the Beasties could have sued over was the composition... and that was "stolen" from the Isley Brothers' "Shout." (Rick Rubin, the producer of that song, has outright stated as much.)
On the post: And, Of Course, Labels Sue Pandora Over Pre-1972 Recordings
Re: Re:
I know I'm late with this, but...
Spotify isn't eligible for the type of royalties under consideration; those royalty rates are only available to non-interactive services (like Pandora and SiriusXM).
So, they already must do direct deals with the rights holders. They're not paying "royalties" at all; they're entering into direct contract negotiation with the rights holders, and those rights holders pay whatever royalties are owed to artists.
On the post: Can Anyone Name A Programmer Still Getting Paid For Code He Wrote In 1962?
Re: Freud was right
Much like his mom!
...'Cause I'm twelve, that's why.
On the post: Can Anyone Name A Programmer Still Getting Paid For Code He Wrote In 1962?
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh, there are some...
From the first study I linked above, the #1 earning artist in 2002 was Paul McCartney... of Beatles fame.
Of the 72.1 million he made that year, 4.4 million was from recording and publishing royalties combined.
That is about 6% of his income.
You're a fucking idiot.
On the post: Can Anyone Name A Programmer Still Getting Paid For Code He Wrote In 1962?
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh, there are some...
I am unsure what you're not failing to get. Couldn't you not explain it to me not in a way that is a little less ungood?
On the post: Can Anyone Name A Programmer Still Getting Paid For Code He Wrote In 1962?
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh, there are some...
Oh, look, it's Anonymous Coward acting like he's not an apologist for the big labels that make their money solely through exploiting musicians.
Say Karl: instead of gracing everyone with your comical opinions on how things work, why not post stats- rates and figures from first-hand sources.
Okey dokey.
Of the average income from the top 35 grossing musicians from 2002, roughly 17% was from recording and performance royalties combined. (And the only ones who made more than half their money from royalties, were those artists who were also other artists' record producers.) Source: File-Sharing and Copyright (PDF), Oberholzer-Gee & Strumpf, 2009, p.44 (Table 6).
- Off the Charts: Examining Musicians’ Income from Sound Recordings
- Occupational Employment and Wages, May 2012 (Note: These are the latest statistics available. These industries don't pay artists through royalties; they pay on either a wage or per-performance basis.)
- Steve Albini, The Problem With Music
- My Hilarious Warner Bros. Royalty Statement
- The Music Industry's Funny Money
- How Record Companies Make Money (Please note: Until the label makes a profit, performing artists get paid absolutely nothing from sound recording royalties.)
- The Internet Debacle: An Alternative View
- A Conversation With Michelle Shocked
- Courtney Love does the math (unfortunately, the entire article isn't online any more - this is just the first part)
- Lyle Lovett sells millions, earns nothing
- A Letter From The Front... (30 Seconds To Mars)
Now, it's your turn. Please post any reputable study - any whatsoever - that shows musicians make a living mainly through royalties, and not through the sources I mentioned.
On the post: Can Anyone Name A Programmer Still Getting Paid For Code He Wrote In 1962?
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh, there are some...
No I couldn't!
On the post: And, Of Course, Labels Sue Pandora Over Pre-1972 Recordings
Re:
No matter what the status on state laws, you would still have to pay composition royalties to ASCAP/BMI/SESAC. These royalties have been an established part of federal law since the invention of the player piano.
Until the Internet came around, you would not have to pay sound recording royalties for performances. The only entities in the United States that have to pay these royalties are Internet and cable streaming radio stations.
Terrestrial radio stations, bars, restaurants, live venues, etc. do not have to pay sound recording royalties, and never have. Not under federal law, and not under any state law.
On the post: Can Anyone Name A Programmer Still Getting Paid For Code He Wrote In 1962?
Re: Re: Re: Re: Re: Re: Re: Re: Oh, there are some...
If you make money as a musician, then it's more likely than not that you're not making your living from royalties. For the vast, vast majority of musicians, royalties pay them nothing, and the rest have always made more money from non-royalty sources like performances, teaching, endorsements, or merch.
On the post: And, Of Course, Labels Sue Pandora Over Pre-1972 Recordings
Re: Re: Re: Re:
You know, no matter how many times you repeat it, it's still not true.
On the post: And, Of Course, Labels Sue Pandora Over Pre-1972 Recordings
Re: Re:
pre-1972 sound recordings
A "sound recording" is distinct from the underlying composition. The underlying composition has been covered by Federal copyright law, for about a century. Pandora (like terrestrial radio) is, and always has, paid royalties on the underlying composition for pre-1972 recordings.
What they have not been paying are the royalties for sound recordings. Those are the royalties which go to SoundExchange (as opposed to the composition royalties, which go to ASCAP, BMI, or SESAC).
Terrestrial radio does not, and has never, paid any royalties on the sound recordings, pre-1972 or not.
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