Has anyone compared content to salt yet? As in, restaurants seem perfectly comfortable giving away free salt, or free water, or free napkins, or any number of free things, yet this ultimately doesn't diminish the "value" of the salt so much as enhance the value of the actual meal.
Here's the distinction between copyright and plagiarism. Plagiarism may be immoral, but it isn't always illegal.
We do have many laws based primarily on morality, and I'm not going to go so far as to say there should always be some economic cost-benefit analysis rational for each law.
However, we should be much more cautious about justifying laws on the basis of morality. A few reasons:
* Morality saying something is bad doesn't entail that the solution is good. Author A may have a moral right to prevent others from ripping off his work, but Author B also has a moral right to write a review of Author A's work. If we enforce the moral rights of A too strictly, we may end up stepping upon the rights of B.
* Morality can yield inconsistent results. Racism is immoral. So is an author writing a racist book therefore entitled to less copyright than one writing a book promoting tolerance? Likewise, letting people die is immoral. Should we permit poor people to infringe a drug patent if doing so is necessary to save their lives?
* Moral norms often don't require legal action to enforce. Mike makes this point quite frequently -- e.g. with comedians. You don't need to assert copyright claims with jokes to prevent people from ripping off your jokes. The stigma associated with being a "rip-off" is often enough.
* Morals are difficult to debate. With economics, you can bring in facts and studies to convince someone. With morality, it ends up being relative.
512(c)3(B)(i) refers to 512(c)3(B)(ii), which says that if an improperly filed notice contains, among other things, "information reasonably sufficient to permit the service provider to locate the material," then Google should "promptly attempt[] to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies . . . ."
So that's what they're talking about in the audio. Assuming Perfect 10 provided "reasonably sufficient" information to identify the images (and I'm not saying they did, but assuming they did), then the question is what reasonable steps Google should take to help Perfect 10 file a proper DMCA notice.
I think this is where the fuzziness of the fair use doctrine might come in handy. Courts will probably not want to issue an injunction telling someone they have to have a tattoo removed. They should create a rule where the "purpose and character" of the use is to display it, and the "nature of the copyrighted work" makes it difficult to remove or not display, then fair use kicks in.
The 9 exceptions are (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;
So ... maybe a tattoo is a contribution to a collective work? It doesn't fall neatly into any of these categories I think.
I'm not sure I understand the "freedom of information" vs. "freedom of expression" dichotomy. Anyone want to clarify?
It sounds like the fact vs. expression dichotomy we recognize in IP (e.g. you can copyright expression but you can't copyright facts). But that doesn't seem to be what Falkvinge is getting at -- he includes medical records and military secrets. Those are totally factual though, so that can't be it.
An alternate reading is that he's really talking about not restricting information before it becomes available -- i.e. no prior restraints. But that's not "seek, fetch, and research".
Read the Slashdot comments. It looks like the prior art reference was found and raised by the USPTO, not by IBM. They ultimately granted the patent after IBM narrowed their claims such that it was an "improvement" on the open-source tech.
That's probably more of an issue than the prior art. At what point does an "improvement" become obvious? The interesting scenario would be if companies monitored open-source commit logs, predicted where the technology was heading, and patented it in advance. That'd be a good test-case for an independent invention defense.
Your "nature of the copyrighted work" is a little off Mike. That factor actually is about the original, not how its used in the allegedly infringing work. Courts are supposed to examine how that work is used under the "purpose and character" factor.
The "nature of the copyrighted work" factor has come into play in at least two circumstances:
(1) When the copyrighted work is mostly factual in nature, this weighs in favor of fair use. The idea is that you can't copyright facts, so any "creative" presentation of those facts gets a "thin" copyright at best.
(2) When the copyrighted work is unpublished, this weighs against fair use. The idea here is that there's some special harm when something is published before the author deems it ready for publication. I could see circumstances where there is reversed though (e.g. the author has no intention of ever publishing, or is dead).
That said, this factor isn't a huge deal these days. If the other three go one way, most courts would probably say its fair use. Not sure if it's "obvious", but it's at least highly likely.
Ronald, Mike's point is that while inventING is scarce, inventIONS are not. Or to frame it in copyright, creativity is scarce. Copies are not.
The problem is that most of IP law recognizes a property right in the act of copying, not in the act of creating. Now the obvious rejoinder (spread out over the preceding 100+ comments) is that giving a property right in exclusive copying is necessary to incentivize creation.
That misses the point though. Thinking about rights as incentives and thinking about rights as property often yield divergent outcomes.
For example, take the limited duration of a patent. From an incentive perspective, this makes sense. We only want to grant enough of a right to encourage people to invent, since if we grant anything past that, we might begin to discourage others from making improvements. But from a property standpoint, all of this is irrelevant. My house doesn't revert to the public after 20 years. Nor do I have to grant an easement to my neighbor so that he can make improvements based on my land, even if I am being adequately compensated.
And that's (I think) Mike's point. Property works well when you recognize the scarcity in X by recognizing a property right in X. It does not work so well, when you recognize a scarcity in X by allocating a property right in Y.
On the post: Cheerleader Told To Pay School She Sued After Being Kicked Off Squad For Refusing To Cheer Guy Who Assaulted Her
On the post: School Allowed To Punish Student For Calling Officials 'Douchebags' On Her Blog
Reminds me of ...
On the post: If You Can't Understand The Difference Between Money And Content, You Have No Business Commenting On Business Models
Salt
On the post: Revisiting The Question Of Who Deserves Copyright
Re: This site is just out of touch.
We do have many laws based primarily on morality, and I'm not going to go so far as to say there should always be some economic cost-benefit analysis rational for each law.
However, we should be much more cautious about justifying laws on the basis of morality. A few reasons:
* Morality saying something is bad doesn't entail that the solution is good. Author A may have a moral right to prevent others from ripping off his work, but Author B also has a moral right to write a review of Author A's work. If we enforce the moral rights of A too strictly, we may end up stepping upon the rights of B.
* Morality can yield inconsistent results. Racism is immoral. So is an author writing a racist book therefore entitled to less copyright than one writing a book promoting tolerance? Likewise, letting people die is immoral. Should we permit poor people to infringe a drug patent if doing so is necessary to save their lives?
* Moral norms often don't require legal action to enforce. Mike makes this point quite frequently -- e.g. with comedians. You don't need to assert copyright claims with jokes to prevent people from ripping off your jokes. The stigma associated with being a "rip-off" is often enough.
* Morals are difficult to debate. With economics, you can bring in facts and studies to convince someone. With morality, it ends up being relative.
On the post: Perfect 10's Latest Bizarre Arguments Against Google Heard By Skeptical Appeals Court
512(c)3(B)(i)
So that's what they're talking about in the audio. Assuming Perfect 10 provided "reasonably sufficient" information to identify the images (and I'm not saying they did, but assuming they did), then the question is what reasonable steps Google should take to help Perfect 10 file a proper DMCA notice.
I suspect that so long as Google sent an e-mail with a link to http://www.google.com/support/bin/static.py?page=ts.cs&ts=1114905, that's reasonable enough.
On the post: Who Owns The Copyright On A Tattoo?
Re: Re: Re: Re: Fair Use
On the post: Who Owns The Copyright On A Tattoo?
Re: Re: Fair Use
On the post: Who Owns The Copyright On A Tattoo?
Re: Re: Re: Re: Not work for hire
On the post: Who Owns The Copyright On A Tattoo?
Fair Use
On the post: Who Owns The Copyright On A Tattoo?
Re: Re: Not work for hire
So ... maybe a tattoo is a contribution to a collective work? It doesn't fall neatly into any of these categories I think.
On the post: Who Owns The Copyright On A Tattoo?
Re: Re:
Also, courts do have to the power to order the "impoundment" and "destruction" of the tattoo, so long as the court thinks it's "reasonable" to do so.
On the post: Alleged Ax-Murderer Claims News Reporter Violates His Likeness Rights
Incentives?
On the post: Is It Possible To Block The 'Bad Stuff' Online Without Also Stopping The 'Good Stuff'?
Freedom of information
It sounds like the fact vs. expression dichotomy we recognize in IP (e.g. you can copyright expression but you can't copyright facts). But that doesn't seem to be what Falkvinge is getting at -- he includes medical records and military secrets. Those are totally factual though, so that can't be it.
An alternate reading is that he's really talking about not restricting information before it becomes available -- i.e. no prior restraints. But that's not "seek, fetch, and research".
On the post: Are Companies Scanning Open Source Commit Logs And Patenting What They Find?
USPTO is looking at prior art
That's probably more of an issue than the prior art. At what point does an "improvement" become obvious? The interesting scenario would be if companies monitored open-source commit logs, predicted where the technology was heading, and patented it in advance. That'd be a good test-case for an independent invention defense.
On the post: Universal Claiming Dancing Baby Video Not An Obvious Case Of Fair Use
Nature of the Copyrighted Work
The "nature of the copyrighted work" factor has come into play in at least two circumstances:
(1) When the copyrighted work is mostly factual in nature, this weighs in favor of fair use. The idea is that you can't copyright facts, so any "creative" presentation of those facts gets a "thin" copyright at best.
(2) When the copyrighted work is unpublished, this weighs against fair use. The idea here is that there's some special harm when something is published before the author deems it ready for publication. I could see circumstances where there is reversed though (e.g. the author has no intention of ever publishing, or is dead).
That said, this factor isn't a huge deal these days. If the other three go one way, most courts would probably say its fair use. Not sure if it's "obvious", but it's at least highly likely.
On the post: Chilean Miner Copyrights Note Announcing Trapped Miners Were OK
Re: Re:
On the post: Would Copyright Work Better If It Was Treated More Like Property?
Re: Fatally Flawed Reasoning
The problem is that most of IP law recognizes a property right in the act of copying, not in the act of creating. Now the obvious rejoinder (spread out over the preceding 100+ comments) is that giving a property right in exclusive copying is necessary to incentivize creation.
That misses the point though. Thinking about rights as incentives and thinking about rights as property often yield divergent outcomes.
For example, take the limited duration of a patent. From an incentive perspective, this makes sense. We only want to grant enough of a right to encourage people to invent, since if we grant anything past that, we might begin to discourage others from making improvements. But from a property standpoint, all of this is irrelevant. My house doesn't revert to the public after 20 years. Nor do I have to grant an easement to my neighbor so that he can make improvements based on my land, even if I am being adequately compensated.
And that's (I think) Mike's point. Property works well when you recognize the scarcity in X by recognizing a property right in X. It does not work so well, when you recognize a scarcity in X by allocating a property right in Y.
On the post: Did The RIAA Really Just Come Out In Support Of 'Opt-In' Copyright? [Updated]
De facto registry
On the post: The Atlantic Mocks Digg For Having BP As A Sponsor... In An Article Sponsored By Exxon
Deleting Comments
On the post: Sarkozy: We Must Regulate The Internet To Ensure Freedom
Next >>