I think you're blaming the wrong branch of government. Didn't the legislature make the DMCA? And doesn't the Register of Copyrights work for Congress? Don't blame the courts.
Good point. And "commercial" doesn't necessarily mean that the person makes money off of it.
I think people need to read up on how courts apply the four factors before they go trying to apply them. It's a little more complicated than people are making it.
As far as this use of Prince's song goes... I'm inclined to agree it's fair use, but I don't think it's obviously so.
While he doesn't say so, my assumption is that the idea is to show that, and then suggest that the anti-circumvention provision does not apply because it shows that the Xbox's technological protection measures are not "effective," and the anti-circumvention provisions are only designed to apply to "a technological measure that effectively controls access to a work protected under this title." Similar arguments have actually worked in Europe, though I'm not sure if they'll work here.
I read a case recently where it was argued that since the defendant was able to circumvent the protection, it wasn't "effective." The court noted that to interpret it that way would be illogical since it would then allow the very thing the law was meant to stop. I just don't see that argument holding any water.
Either way, I'm guessing the court won't allow Huang to testify for a variety of legal reasons, but even if he doesn't, it would be nice if the court and anyone else could explain why jailbreaking an iPhone is fine while jailbreaking an Xbox gets you jailtime.
Well, the simple reason is because that's what the law says. Let me ask you, why should the laws that applies to cell phones be the same as the laws that apply to gaming systems?
He agrees that finding fair use on a motion to dismiss is rare, and as he put it, the judge, "cut some procedural corners." He also thinks the ruling would be "vulnerable" on appeal. I was able to find a few cases on Westlaw where fair use was determined on a motion to dismiss, so it's not unheard of. However, those cases involved incidental copying, not deliberate copying like we have here. I'm still shaking my head at this ruling... I don't have any problem with this being considered fair use, I just don't think the judge should have cut corners to get there.
Just the other day on techdirt we were discussing whether summary judgment was even appropriate to decide fair use, and some people thought that it wasn't--they thought it should always be a jury that decides. Would those same people mind if the judge found fair use on a motion to dismiss? I doubt it. But you can't have it both ways.
I was being serious. I think you mean the actual growth vs. the rate of growth. For example, we could have more works being created overall, but at the same time, the rate of creation per person could be decreasing. Is it something like that?
I'm stunned that the judge granted the motion to dismiss on the fair use defense. I didn't think that was really possible. I suspect Righthaven would have a good chance of getting this reversed on appeal, but it sounds like we'll never find out though since they apparently settled already.
Ha, you actually tread lightly on Gellar. This is the worst loss for a copyright holder I've ever seen.
I'm not scared of Geller. He can't even bend spoons with his mind.
How many copyright lawsuits involve changing the copyright license as part of the settlement? This is the only one I've ever seen.
Google books comes to mind. Google scans and catalogs library books and book publishers bring lawsuit for infringement. Google and publishers are now working on a settlement where they will grant Google a license to scan the works.
I'm sure compromises like that happen all the time.
If 20/20's use of UMG material is fair use, then Universal holds no more rights to that clip than they would to The Little Mermaid.
How does postingoldtapes (alleged) infringement of Disney's copyright suddenly grant rights to Universal that they never held in the first place?
Well, first of all, we don't know if UMG licensed the clips to ABC or not.
Let's say they did. Why would UMG's license to ABC transfer to postingoldtape? Could ABC even transfer that license if they wanted to? We don't know if it was even transferable. I think the most likely scenario is that postingoldtape doesn't have either parties' permission and he's infringing on both UMG and ABC.
Let's say UMG didn't license the clips to ABC and ABC was using the clips fairly. Why would ABC's fair use transfer to postingoldtape? Even if it makes sense that fair use could be transferred, and I don't see why it couldn't be, I think the problem is that postingoldtape's use wasn't itself fair. It's not fair with respect to 20/20 and that makes it not fair with respect to UMG.
The problem is, I think, in looking at postingoldtape's use as an extension of ABC's use. It's not. It's a whole new use that needs to be analyzed distinctly. And from that perspective, I think the use infringes both ABC's and UMG's copyrights.
For the sake of argument, let's say that Disney authorized postingoldtapes' use (say, by "claiming" the YouTube clip via their ContentID system, and "monetizing" it rather than taking it down).
Would Universal have a claim against Disney? No? Then they wouldn't have a claim against the poster, either.
Yeah, I thought about that. If ABC licensed or authorized postingoldtape's use, then I would think ABC's right to use UMG's content transfers to postingoldtape.
The copyright holder is the only one that can issue a takedown notice, by DMCA law. Universal is not the copyright holder of the 20/20 clip. Therefore, they can't issue a takedown notice. QED.
UMG is the copyright holder of the clips vis-a-vis postingoldtape. That's my point.
I mean, this is just really obvious stuff here. The fact that no authority has contradicted it, nor even suggested that a contradiction is even possible, is telling.
I don't think it's obvious at all. That's also my point.
If you worked in rights management, you would know that the above statement is inherently false. There is a requirement to defend an infringed *trademark*, but the same is simply not true for copyright. There is no countdown. You do not lose it if you don't enforce it. This is simply wrong.
There is a prescriptive period (aka statute of limitations) for bringing an action:
17 U.S.C. 507: "Limitations on actions . . . (b) Civil actions. No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued."
Perhaps that's what he was talking about. If you don't bring the action within the prescriptive period, you are barred from ever bringing the action.
OK, I read Italian Book Corp v. American Broadcasting Co. and I think that case is inapposite. The copyrighted material at issue was incidentally included in the news broadcast, whereas here, the UMG clips were intentionally included in the 20/20 piece. On top of that, we don't have the same situation where someone else was reposting the clip. So it's not really analogous.
I like this part: "The fair use concept has been part of the law of copyright for many years, although its application has been vexing." In other words, there's no such thing as "clearly fair use."
And this part is even better: "The fair use privilege is based on the concept of reasonableness and extensive verbatim copying or paraphrasing of material set down by another cannot satisfy that standard." In other words, wholesale copying is not fair use.
There's also this lovely nugget: "Justice Stewart's majority opinion in Zacchini notes the argument put forward by Nimmer that 'copyright law does not abridge the First Amendment because it does not restrain the communication of ideas or concepts.'" In other words, copyright and the First Amendment coexist peacefully.
Yeah, there's a good argument that NOVA's use of Geller's clip was fair use. In fact, I think that it probably was. But that doesn't mean someone else posting the NOVA video on youtube could claim that same fair use of Geller's clip. In fact, I can find no authority that says that it works that way. And notice what happened in that case--they settled and Geller licensed the clip for others to use. He didn't concede it was fair use, he licensed it.
If the use within 20/20 is fair, then UMG can't assert those rights against any identical use. If it's fair use for 20/20, it's fair use for everyone.
That makes zero sense to me. What is the basis for that argument? Got any caselaw to back it up? I think you're just guessing.
Also, just because a use is infringing against one party, does not mean that all fair use rights are lost. For example, if 20/20's use was not fair use, but had to be licensed, then a lawsuit by Disney does not mean that Universal could not sue as well.
I think it's more likely that postingoldtape is infringing on both ABC's copyright of 20/20 and UMG's copyright of the clips.
Also, I'm not entirely convinced that Disney would have a slam-dunk infringement case, either - especially considering that 20/20 is a news program, and that the episode is not commercially available.
Really? It's just wholesale copying. Whether or not 20/20 has made the work commercially available does not change the fair use analysis. You should read a bunch of caselaw on how courts apply the fair use analysis. It's clear that you haven't.
If anything guys, I think it's perfectly clear that this is anything but "clearly fair use." Mike's just plain wrong. And he's not man enough to admit it.
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On the post: Universal Claiming Dancing Baby Video Not An Obvious Case Of Fair Use
Re: Nature of the Copyrighted Work
I think people need to read up on how courts apply the four factors before they go trying to apply them. It's a little more complicated than people are making it.
As far as this use of Prince's song goes... I'm inclined to agree it's fair use, but I don't think it's obviously so.
On the post: Jailbreaking Your iPhone? Legal! Jailbreaking Your Xbox? 3 Years In Jail!
I read a case recently where it was argued that since the defendant was able to circumvent the protection, it wasn't "effective." The court noted that to interpret it that way would be illogical since it would then allow the very thing the law was meant to stop. I just don't see that argument holding any water.
Either way, I'm guessing the court won't allow Huang to testify for a variety of legal reasons, but even if he doesn't, it would be nice if the court and anyone else could explain why jailbreaking an iPhone is fine while jailbreaking an Xbox gets you jailtime.
Well, the simple reason is because that's what the law says. Let me ask you, why should the laws that applies to cell phones be the same as the laws that apply to gaming systems?
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On the post: Righthaven Loses First Lawsuit; Judge Says Copying Was Fair Use
He agrees that finding fair use on a motion to dismiss is rare, and as he put it, the judge, "cut some procedural corners." He also thinks the ruling would be "vulnerable" on appeal. I was able to find a few cases on Westlaw where fair use was determined on a motion to dismiss, so it's not unheard of. However, those cases involved incidental copying, not deliberate copying like we have here. I'm still shaking my head at this ruling... I don't have any problem with this being considered fair use, I just don't think the judge should have cut corners to get there.
Just the other day on techdirt we were discussing whether summary judgment was even appropriate to decide fair use, and some people thought that it wasn't--they thought it should always be a jury that decides. Would those same people mind if the judge found fair use on a motion to dismiss? I doubt it. But you can't have it both ways.
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On the post: Righthaven Loses First Lawsuit; Judge Says Copying Was Fair Use
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I'm not surprised that this was considered fair use, I'm just surprised it happened at this stage of the proceedings.
On the post: Authors Do Not Create Content In A Vacuum... So It's Too Bad Copyright Often Pretends They Do
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I've never heard of that. Could you break it down for us?
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On the post: Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?
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On the post: Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?
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Right. And you must look at postingoldtape's use as a new, distinct use. It's the play-within-the-play.
On the post: Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?
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I'm not scared of Geller. He can't even bend spoons with his mind.
How many copyright lawsuits involve changing the copyright license as part of the settlement? This is the only one I've ever seen.
Google books comes to mind. Google scans and catalogs library books and book publishers bring lawsuit for infringement. Google and publishers are now working on a settlement where they will grant Google a license to scan the works.
I'm sure compromises like that happen all the time.
On the post: Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?
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How does postingoldtapes (alleged) infringement of Disney's copyright suddenly grant rights to Universal that they never held in the first place?
Well, first of all, we don't know if UMG licensed the clips to ABC or not.
Let's say they did. Why would UMG's license to ABC transfer to postingoldtape? Could ABC even transfer that license if they wanted to? We don't know if it was even transferable. I think the most likely scenario is that postingoldtape doesn't have either parties' permission and he's infringing on both UMG and ABC.
Let's say UMG didn't license the clips to ABC and ABC was using the clips fairly. Why would ABC's fair use transfer to postingoldtape? Even if it makes sense that fair use could be transferred, and I don't see why it couldn't be, I think the problem is that postingoldtape's use wasn't itself fair. It's not fair with respect to 20/20 and that makes it not fair with respect to UMG.
The problem is, I think, in looking at postingoldtape's use as an extension of ABC's use. It's not. It's a whole new use that needs to be analyzed distinctly. And from that perspective, I think the use infringes both ABC's and UMG's copyrights.
On the post: Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?
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Would Universal have a claim against Disney? No? Then they wouldn't have a claim against the poster, either.
Yeah, I thought about that. If ABC licensed or authorized postingoldtape's use, then I would think ABC's right to use UMG's content transfers to postingoldtape.
The copyright holder is the only one that can issue a takedown notice, by DMCA law. Universal is not the copyright holder of the 20/20 clip. Therefore, they can't issue a takedown notice. QED.
UMG is the copyright holder of the clips vis-a-vis postingoldtape. That's my point.
I mean, this is just really obvious stuff here. The fact that no authority has contradicted it, nor even suggested that a contradiction is even possible, is telling.
I don't think it's obvious at all. That's also my point.
On the post: Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?
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There is a prescriptive period (aka statute of limitations) for bringing an action:
17 U.S.C. 507: "Limitations on actions . . . (b) Civil actions. No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued."
Perhaps that's what he was talking about. If you don't bring the action within the prescriptive period, you are barred from ever bringing the action.
On the post: Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?
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On the post: Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?
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I like this part: "The fair use concept has been part of the law of copyright for many years, although its application has been vexing." In other words, there's no such thing as "clearly fair use."
And this part is even better: "The fair use privilege is based on the concept of reasonableness and extensive verbatim copying or paraphrasing of material set down by another cannot satisfy that standard." In other words, wholesale copying is not fair use.
There's also this lovely nugget: "Justice Stewart's majority opinion in Zacchini notes the argument put forward by Nimmer that 'copyright law does not abridge the First Amendment because it does not restrain the communication of ideas or concepts.'" In other words, copyright and the First Amendment coexist peacefully.
Good case though. I enjoyed reading it.
On the post: Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?
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On the post: Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?
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On the post: Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?
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That makes zero sense to me. What is the basis for that argument? Got any caselaw to back it up? I think you're just guessing.
Also, just because a use is infringing against one party, does not mean that all fair use rights are lost. For example, if 20/20's use was not fair use, but had to be licensed, then a lawsuit by Disney does not mean that Universal could not sue as well.
I think it's more likely that postingoldtape is infringing on both ABC's copyright of 20/20 and UMG's copyright of the clips.
Also, I'm not entirely convinced that Disney would have a slam-dunk infringement case, either - especially considering that 20/20 is a news program, and that the episode is not commercially available.
Really? It's just wholesale copying. Whether or not 20/20 has made the work commercially available does not change the fair use analysis. You should read a bunch of caselaw on how courts apply the fair use analysis. It's clear that you haven't.
If anything guys, I think it's perfectly clear that this is anything but "clearly fair use." Mike's just plain wrong. And he's not man enough to admit it.
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