I don't consider this a matter of speech. That it's a photographer doesn't change the fact that it's a business.
It most certainly is a question of speech. Yes, it is a business as well, but that business makes their money from protected expression. Forcing the photographer to take a job against her will would literally mean the government is forcing people to express themselves in a specific way, and that's certainly a First Amendment violation.
Even if it wasn't, this likely isn't an illegal violation of gay people's rights. Generally speaking, businesses only have to respect peoples' rights for public accommodations, and photography for hire wouldn't qualify.
Besides, I'm pretty sure this photographer's business is going to be ruined anyway, once this gets widespread attention. And deservedly so, IMO.
Serously? You want us to re-hash old arguments, on a completely unrelated story?
No. I'll quote and link one example, but that's it. Anything more is wasting time.
Please show me exactly where you think Mike made it clear that Congress is the state actor in that scenario.
First of all, let's establish what Mike's argument really is. Here's the relevant quote from that story: "it seems (to me, at least) to only further the argument that the DMCA takedown process is a clear violation of the First Amendment, because it now clearly allows for blatant censorship, with no remedy even if the process is abused to remove non-infringing speech, such as fair use." No mention of ISP's as state actors.
He links to another story, where he says this: "The basic nature of the notice-and-takedown -- even if done by private firms -- appears to be in direct violation of the First Amendment. The fact that the DMCA effectively requires companies to take this step in order to protect themselves from liability via the DMCA's safe harbors, means that even though it's a private company doing this, they are compelled to do so by the government."
And in that story, he re-iterated this argument in the comments: "As previous rulings have shown, if the gov't forces a corporation to take away free expression it can be ruled unconstitutional." (Source.) "It is illegal for the gov't to force companies to remove speech. It is not illegal for private actors to decide to remove speech themselves. So those sites still can remove whatever they want. Where the problem happens is when the gov't tells them they have to do so." (Source.)
Back in the original story he specifically replied to you to reiterate that point: "The state is a player in that it created a law that leads to censorship without living up to the high bar required under the First Amendment." (Source.)
So, yes, he specifically said that Congress (the ones who "created a law") were the state actors. He never claimed ISP's were state actors, and in fact stated the exact opposite: that they were "private firms" who were compelled to act by state actors. And Mike was not the only one who pointed this out to you. Yet you continued to claim it was his argument: "Are they, or are they not, arguing that the ISPs that remove complained-of content are state actors?" (Source.)
This is not "disagreeing with my assessment." It is a deliberate misrepresentation of Mike's argument. It is a lie.
And, oh, look, in another comment, you're doing the same thing all over again:
In that discussion we had prior restraints, the state action doctrine, and DMCA takedown notices, you insisted that a service provider has no choice but to take down the material.
Big surprise, but that's (at best) a misstatement of what I said (that the statutes are coercive enough such that DMCA takedowns can be fairly attributed to the state). We've already had this discussion, at great length, and I'm not going to rehash it. (Source, for those few who are curious.)
I could do the same thing with Stelzer's paper. Or the "contributory infringement" argument. Or the many other times you've lied about things Mike has said. Or the many, many other times you've misrepresented my own arguments. But it's obviously pointless. You'll simply lie some more, then deny it's a lie.
If your argument had any weight whatsoever then you'd also be saying that the ISP and the internet backbone provider are also retransmitting the broadcast too
Sadly, that argument has also been raised before (though pre-Internet, it was usually with things like phone lines). Those arguments have always failed, at least all that I'm aware of. Nonetheless, it was enough of a concern for Congress to include blanket liability for such providers in the DMCA.
Mike was making the argument that DMCA takedowns are prior restraints.
Those two arguments is not remotely equivalent to the argument was that the DMCA "transforms ISP's into state actors." That is obvious to anyone with basic English skills. Yet that's what you claimed Mike's argument was, and you continued (and, it seems, still continue) to claim it even after he made it clear that it was Congress that he considered to be the state actor.
And the reason is clearly because that's the easiest argument to refute. (It is harder to argue that rights holders do not send DMCA notices under color of law; and impossible to do with Congress.) So, you refute this (unraised, weaker) argument, then claim you refute the (stronger) argument that was actually raised.
This is the very definition of a straw-man argument. And, like all straw man arguments, it requires misrepresenting the original argument. That you do so even after everyone said it wasn't the argument makes you a liar.
Mike in that link was saying something self-contradictory.
No, he wasn't. If you ask most lawyers what the "contributory infringement" standard is, they will say it's the civil liability standard created by Napster and so forth. Nobody that I'm aware of has ever used "criminal contributory infringement" when they meant "aiding and abetting criminal infringement." And Mike was right: the civil liability standard created through Napster et. al. cannot give rise to criminal liability.
So Mike's statement was clear, and it was you who claimed it wasn't. In fact, you claimed that he was "pretending" that aiding and abetting didn't exist.
That could mean that you're simply confused... except that Mike explicitly said what he meant (and linked to entire Techdirt articles that talked about the difference).
Do you admit your mistake? No. You still claimed that Mike said there is no such thing as aiding and abetting, and that pointing out your confusion was "wiggling out" of the argument.
You continued to misrepresent what he said after you knew it was a misrepresentation. That means you were lying.
Is this really the best evidence of AJ is a liar you can find?
Only if by "best," you mean your least distruthful. These aren't the worst lies you've told here. They are merely the most typical. You've done exactly the same thing, to varying degrees, every single time you've had a debate here.
And this is when you're not deliberately shitting all over comments with barnyard noises. Or whining about why a guy whose arguments you always misrepresent, and who you call a "weasel," a "douchebag," a "slimeball," "Pirate Mike," and a dozen other names, will (surprise!) not find it worth his time to engage in "debate" with you.
No, that's not you at your worst. That's you at your best. Even at your best, you're a liar.
Occam's Razor, the simplest explanation is often the correct one, says that with you unwilling to provide evidence for your accusations, you are then lying.
Occam's Razor would suggest he's lying anyway, since he has proven over and over again that he is willing to go to any lengths - ad hom attacks, straw man arguments, cherry-picking, and poisoning the well - in order to do anything that he thinks will discredit Techdirt, and Mike personally.
On the other hand, I'm unaware of any time Techdirt has done anything similar with any other commenter. Nobody else - even the others who consistently smear Mike - has even claimed that they've been blocked.
I'll still admit it's possible, since AJ has been such a disruptive douchebag that blocking him is absolutely warranted. But that's not enough to overcome Occam's razor.
I didn't deliberately misrepresent anyone's arguments when we talked about the state action doctrine
You certainly did. You claimed that Mike's argument was that "DMCA takedown notice recipients are state actors." Not only was this not his argument, nobody with a basic grasp of English would think that it was. Furthermore, you continued to claim that was his argument - and in fact, have never stopped claiming that - even after Mike himself explicitly stated it wasn't his argument.
But, of course, it's easier to tear down a straw man than to actually debate Mike's actual point. That was, quite transparently, why you continued to argue against it.
I attempt to portray my honest view of other people's arguments
Yet you still misrepresent their arguments, even when they explicitly tell you they're not their arguments. The whole "ISP's are state actors" bullshit, for example.
You don't think misrepresenting other peoples' arguments is lying? You don't think that misrepresenting what case law says is lying? You don't think that ad hominem attacks that deliberately attempt to make people look bad, and to make it appear they support things they don't actually support, is lying?
I'm pretty sure you do, which means you're lying right now.
Do you think that Mike can actually identify any differences between Aereo and FilmOn that are legally significant?
Yes. Gwiz brought them up already. Seems perfectly consistent with Mike's assertion that Aero was specifically set up to be within the law, while FilmOn was only copying the appearance of Aero's setup as a pretense to legality.
Do you think that Mike's "length of the cord" argument has any legal merit?
That is not Mike's argument, it is the broadcasters'. They are the ones essentially arguing that the "length of the cord" makes Aero's service infringing. In this regard, Mike's argument - that the length of the cord is not significant - certainly has legal merit.
Really, Karl, after all the lengthy discussions we've had, you're now going to call me a liar?
I'm calling you a liar because of all the lengthy discussions we've had. You often misrepresent my arguments, and you consistently misrepresent Mike's. You also consistently misrepresent case law - which could be simple ignorance, but I somehow doubt it. And you do so with the maximum of ad hominem attacks: "weasel," "Pirate Mike," "chicken," "dishonest," "lying slimeball," calling Kim Dotcom "Mike's buddy," and so forth.
Really? I have never said one right thing about the law?
You have never been right about any part of the law that we disagree about. No court has ever accepted any of the arguments you have made here (e.g. that Arcara is controlling in copyright infringement cases). And in every single case where a court has decided the issue at hand (e.g. Righthaven), the courts have sided against you. Your response has always been "the courts got it wrong."
I will admit that I enjoy debating you, because you often bring cases to my attention that I wasn't aware of. You're usually wrong about what those cases say, of course, so I end up with more case law that supports my position. It's very helpful to me, and I'm grateful for that. But it doesn't mean you're not a liar.
Re: Re: Re: Re: Re: Re: Re: Do the Beastie Boys even have standing to sue?
I recognize there's ambiguity in the language of the statute
Thinking about it, I believe that the statute is saying that if a derivative work is infringing, no part of it can be copyrighted. There are two reasons for this.
The first has to do with statutory construction. The statutes already say that copyright in a derivative work applies only to the new elements, and not to any part of the original work - whether the derivative work is infringing or not. So, there would be no reason at all to include that language in the statute, unless they meant it to be interpreted as I said.
The second is more decisive. It's well-settled law that copyrights are granted purely at the discretion of Congress, not as a matter of equity for authors. The monopoly privileges are purely statutory. So, if an author does not follow the statutes, they do not have any right to enjoy the monopoly authorized by those statutes. Obviously, if one infringes upon the rights granted by statute, they are not following the statutes.
So, it makes sense, even if the results seem unfair to the authors of derivative works.
And that post was written before he started a one-man crusade to turn the Techdirt comments into a See 'n Say. You can see examples of this here, here, here, here, here, here, here, here, and here, here, and in many more places as well.
I know that Tecdirt started filtering out comments that had the barnyard noises in them, but there was an easy way to get around that filter: don't make posts that were nothing but barnyard noises.
AJ is now claiming that Techdirt is blocking all of his IP addresses. (He even claimed once that Techdirt is blocking the IP address of his phone, if I remember correctly.)
Now, AJ consistently lies about pretty much everything, so I have no reason to believe he's telling the truth. On the other hand, I understand why Techdirt would block him. If he is blocked, it's solely for his own bad behavior, and he has nobody to blame but himself.
It's pretty telling that he won't even admit this possibility. Which is not a surprise. As I said, I've had discussions with him about the law, and he's never once been right. Courts always side against him, and when they do, he insists that it's the courts which must be wrong.
And by the way, this guy just graduated from law school, specializing in IP law. I suspect we'll have a very entertaining judicial smackdown if he ever appears before a judge. Not that he will - it's pretty obvious that, like Terry Hart, he wants to get a legal position for some copyright lobbying group, without ever entering a courtroom.
Re: Re: Re: Re: Re: Re: Do the Beastie Boys even have standing to sue?
The keyboard from "Girls" is nowhere near a note-for-note copy of the bass line from "Shout." You can call it a "reworking" if you want, but it includes different notes (not just different octaves) and a different rhythm.
The different versions might jump to different octaves (e.g. a fourth up vs. a fifth down), but they're the same notes, in the same key. And the transitions between those notes happen at the same beats within the measure (one, two, three, the upbeat of three, the upbeat of four) even if the rhythms between those transitions are different.
It's a different arrangement, but not nearly as different as e.g. a piano reduction of an orchestral score. Whether those elements are eligible for a separate copyright (assuming non-infringement) is something that only a judge could decide, in all likelihood.
The case law I'm referring to holds that you can't have copyright protection for an authorized derivative. Period. Full Stop.
That seems very odd to me, as I've seen numerous cases that held otherwise. (The aforementioned Gaiman v. McFarlane, Lee v. ART, Picket v. Prince.) It also directly contradicts 17 USC 103(b). The issue I've always seen focused on is whether the differences are significant enough to warrant additional protection. Can you cite the cases you're referring to?
...Unless you meant "unauthorized." That would make sense. I still wouldn't mind seeing those cases either way.
The portion of the copyright Act you cites seems to make clear (to me, anyway, and to most courts application 103(a)), that you can have copyright protection in the original material you contribute to an unauthorized derivative (which is why the cases I'm referring to are wrong, in my opinion).
It seems perfectly clear to me that it doesn't, though I recognize there's ambiguity in the language of the statute: "any part of the work in which such material has been used unlawfully" vs. "any part of the work in which such material has been used unlawfully." Again, which cases are you referring to?
Re: Re: Re: Re: Do the Beastie Boys even have standing to sue?
As that mashup makes clear, nowhere in the original Isley recording do you hear the melody played by the electronic toy piano that is so prevalent in the Beastie song.
It may be hard to hear, but the toy piano part is simply a reworking of the bass line. Same notes, different octaves, and a very slightly different rhythm.
That makes it an arrangement of the bass line. This could mean that it's eligible for a separate copyright as a derivative work, but I'm not sure that alone is enough to make it "significantly different from the copyrighted original" to be eligible for copyright protection. (From Gaiman v. McFarlane.)
There is actually some interesting (and mistaken, in my view) case law suggesting that you can't claim copyright in an unauthorized derivative (even in the portions that are original), so that could be an issue.
That's actually black-letter law. 17 USC 103(a) specifies that "protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully."
But that would require that the Beasties' version actually be unlawful, and that's not necessarily the case.
The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character. Section 107(1) uses the term "including" to begin the dependent clause referring to commercial use, and the main clause speaks of a broader investigation into "purpose and character." As we explained in Harper & Row, Congress resisted attempts to narrow the ambit of this traditional enquiry by adopting categories of presumptively fair use, and it urged courts to preserve the breadth of their traditionally ample view of the universe of relevant evidence. Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness. If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities "are generally conducted for profit in this country." [...]
Sony itself called for no hard evidentiary presumption. There, we emphasized the need for a "sensitive balancing of interests," noted that Congress had "eschewed a rigid, bright line approach to fair use," and stated that the commercial or nonprofit educational character of a work is "not conclusive," but rather a fact to be "weighed along with other[s] in fair use decisions."
Unfortunately, the finding that the Nielsen ad parodies the Moore photograph does not, standing alone, mean that the first factor of the fair use analysis weighs in favor of defendant. The first factor requires me to look at two issues, the character and purpose of the otherwise infringing use. In the present case, these two "ingredients" of the first element militate in favor of opposing conclusions. The Nielsen ad is, like all legitimate parodies, "transformative" in character. It is also, however, undoubtedly commercial in purpose: it was intended to pique public interest in Naked Gun 33 1/3 . In the wake of Campbell, this factor is not dispositive but it remains relevant and weighs against a finding of fair use. [...]
I can only reconcile these disparate elements by returning to the core purpose of copyright: to foster the creation and dissemination of the greatest number of creative works. The end result of the Nielsen ad parodying the Moore photograph is that the public now has before it two works, vastly different in appeal and nature, where before there was only one. [...] Under the particular circumstances of this case, I find that the purposes of copyright are best served by a finding that the highly transformative character of the Nielsen ad trumps its admittedly commercial purpose and that the first fair use factor therefore weighs in favor of the defendant, albeit perhaps by only a slight margin.
Re: Re: Do the Beastie Boys even have standing to sue?
Okay, I guess it did get eaten...
I don't think it's quite as clear cut as that. They did not copy the melody note-for-note from Shout, but the parody does copy the Beasties' melody note-for-note.
Then there's the whole arrangement aspect of pairing certain instruments and the inflection of the spoken words, which are also copied by GoldieBlox.
The Beasties certainly did copy the melody note-for-note, at least as much as that's possible when changing a soul song to a rap song. And the inflections are also exactly the same - when the Beasties sing the lyric "Girls" is exactly where the Isleys sing "Shout," for example.
Certainly, if the Isleys sued the Beasties for infringement, they would win (barring fair use).
So, the question is: if GoldieBlox used only those parts of the Beasties' song that are infringing upon "Shout," do the Beasties still have standing to sue? I actually don't know, since I've never run across a case like that.
On the post: Unfortunate: ACLU On The Wrong Side Of A Free Speech Case
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It most certainly is a question of speech. Yes, it is a business as well, but that business makes their money from protected expression. Forcing the photographer to take a job against her will would literally mean the government is forcing people to express themselves in a specific way, and that's certainly a First Amendment violation.
Even if it wasn't, this likely isn't an illegal violation of gay people's rights. Generally speaking, businesses only have to respect peoples' rights for public accommodations, and photography for hire wouldn't qualify.
Besides, I'm pretty sure this photographer's business is going to be ruined anyway, once this gets widespread attention. And deservedly so, IMO.
On the post: Aereo To Supreme Court: Yes, Please Review The Ruling In Which We Trounced The TV Broadcasters
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No. I'll quote and link one example, but that's it. Anything more is wasting time.
Please show me exactly where you think Mike made it clear that Congress is the state actor in that scenario.
First of all, let's establish what Mike's argument really is. Here's the relevant quote from that story: "it seems (to me, at least) to only further the argument that the DMCA takedown process is a clear violation of the First Amendment, because it now clearly allows for blatant censorship, with no remedy even if the process is abused to remove non-infringing speech, such as fair use." No mention of ISP's as state actors.
He links to another story, where he says this: "The basic nature of the notice-and-takedown -- even if done by private firms -- appears to be in direct violation of the First Amendment. The fact that the DMCA effectively requires companies to take this step in order to protect themselves from liability via the DMCA's safe harbors, means that even though it's a private company doing this, they are compelled to do so by the government."
And in that story, he re-iterated this argument in the comments: "As previous rulings have shown, if the gov't forces a corporation to take away free expression it can be ruled unconstitutional." (Source.) "It is illegal for the gov't to force companies to remove speech. It is not illegal for private actors to decide to remove speech themselves. So those sites still can remove whatever they want. Where the problem happens is when the gov't tells them they have to do so." (Source.)
Back in the original story he specifically replied to you to reiterate that point: "The state is a player in that it created a law that leads to censorship without living up to the high bar required under the First Amendment." (Source.)
So, yes, he specifically said that Congress (the ones who "created a law") were the state actors. He never claimed ISP's were state actors, and in fact stated the exact opposite: that they were "private firms" who were compelled to act by state actors. And Mike was not the only one who pointed this out to you. Yet you continued to claim it was his argument: "Are they, or are they not, arguing that the ISPs that remove complained-of content are state actors?" (Source.)
This is not "disagreeing with my assessment." It is a deliberate misrepresentation of Mike's argument. It is a lie.
And, oh, look, in another comment, you're doing the same thing all over again:
In that discussion we had prior restraints, the state action doctrine, and DMCA takedown notices, you insisted that a service provider has no choice but to take down the material.
Big surprise, but that's (at best) a misstatement of what I said (that the statutes are coercive enough such that DMCA takedowns can be fairly attributed to the state). We've already had this discussion, at great length, and I'm not going to rehash it. (Source, for those few who are curious.)
I could do the same thing with Stelzer's paper. Or the "contributory infringement" argument. Or the many other times you've lied about things Mike has said. Or the many, many other times you've misrepresented my own arguments. But it's obviously pointless. You'll simply lie some more, then deny it's a lie.
On the post: Aereo To Supreme Court: Yes, Please Review The Ruling In Which We Trounced The TV Broadcasters
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Sadly, that argument has also been raised before (though pre-Internet, it was usually with things like phone lines). Those arguments have always failed, at least all that I'm aware of. Nonetheless, it was enough of a concern for Congress to include blanket liability for such providers in the DMCA.
On the post: Aereo To Supreme Court: Yes, Please Review The Ruling In Which We Trounced The TV Broadcasters
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Um, edit error. "Those two arguments" = "that argument." Sorry.
On the post: Aereo To Supreme Court: Yes, Please Review The Ruling In Which We Trounced The TV Broadcasters
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Those two arguments is not remotely equivalent to the argument was that the DMCA "transforms ISP's into state actors." That is obvious to anyone with basic English skills. Yet that's what you claimed Mike's argument was, and you continued (and, it seems, still continue) to claim it even after he made it clear that it was Congress that he considered to be the state actor.
And the reason is clearly because that's the easiest argument to refute. (It is harder to argue that rights holders do not send DMCA notices under color of law; and impossible to do with Congress.) So, you refute this (unraised, weaker) argument, then claim you refute the (stronger) argument that was actually raised.
This is the very definition of a straw-man argument. And, like all straw man arguments, it requires misrepresenting the original argument. That you do so even after everyone said it wasn't the argument makes you a liar.
Mike in that link was saying something self-contradictory.
No, he wasn't. If you ask most lawyers what the "contributory infringement" standard is, they will say it's the civil liability standard created by Napster and so forth. Nobody that I'm aware of has ever used "criminal contributory infringement" when they meant "aiding and abetting criminal infringement." And Mike was right: the civil liability standard created through Napster et. al. cannot give rise to criminal liability.
So Mike's statement was clear, and it was you who claimed it wasn't. In fact, you claimed that he was "pretending" that aiding and abetting didn't exist.
That could mean that you're simply confused... except that Mike explicitly said what he meant (and linked to entire Techdirt articles that talked about the difference).
Do you admit your mistake? No. You still claimed that Mike said there is no such thing as aiding and abetting, and that pointing out your confusion was "wiggling out" of the argument.
You continued to misrepresent what he said after you knew it was a misrepresentation. That means you were lying.
Is this really the best evidence of AJ is a liar you can find?
Only if by "best," you mean your least distruthful. These aren't the worst lies you've told here. They are merely the most typical. You've done exactly the same thing, to varying degrees, every single time you've had a debate here.
And this is when you're not deliberately shitting all over comments with barnyard noises. Or whining about why a guy whose arguments you always misrepresent, and who you call a "weasel," a "douchebag," a "slimeball," "Pirate Mike," and a dozen other names, will (surprise!) not find it worth his time to engage in "debate" with you.
No, that's not you at your worst. That's you at your best. Even at your best, you're a liar.
On the post: Aereo To Supreme Court: Yes, Please Review The Ruling In Which We Trounced The TV Broadcasters
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Occam's Razor would suggest he's lying anyway, since he has proven over and over again that he is willing to go to any lengths - ad hom attacks, straw man arguments, cherry-picking, and poisoning the well - in order to do anything that he thinks will discredit Techdirt, and Mike personally.
On the other hand, I'm unaware of any time Techdirt has done anything similar with any other commenter. Nobody else - even the others who consistently smear Mike - has even claimed that they've been blocked.
I'll still admit it's possible, since AJ has been such a disruptive douchebag that blocking him is absolutely warranted. But that's not enough to overcome Occam's razor.
On the post: Aereo To Supreme Court: Yes, Please Review The Ruling In Which We Trounced The TV Broadcasters
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You certainly did. You claimed that Mike's argument was that "DMCA takedown notice recipients are state actors." Not only was this not his argument, nobody with a basic grasp of English would think that it was. Furthermore, you continued to claim that was his argument - and in fact, have never stopped claiming that - even after Mike himself explicitly stated it wasn't his argument.
But, of course, it's easier to tear down a straw man than to actually debate Mike's actual point. That was, quite transparently, why you continued to argue against it.
This wasn't the first time, either, nor did you only do this with Mike. You did the same thing with me - on many occasions, including that very discussion.
So, yeah. You're a liar.
On the post: Aereo To Supreme Court: Yes, Please Review The Ruling In Which We Trounced The TV Broadcasters
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Disagreeing with me about the state actor doctrine doesn't make you a liar. Deliberately misrepresenting others' arguments makes you a liar.
Which is exactly what I said, so right at this very moment, you're misrepresenting me. Making you a liar.
On the post: Aereo To Supreme Court: Yes, Please Review The Ruling In Which We Trounced The TV Broadcasters
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Yet you still misrepresent their arguments, even when they explicitly tell you they're not their arguments. The whole "ISP's are state actors" bullshit, for example.
That is lying. And, frankly, you know it.
On the post: Aereo To Supreme Court: Yes, Please Review The Ruling In Which We Trounced The TV Broadcasters
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You don't think misrepresenting other peoples' arguments is lying? You don't think that misrepresenting what case law says is lying? You don't think that ad hominem attacks that deliberately attempt to make people look bad, and to make it appear they support things they don't actually support, is lying?
I'm pretty sure you do, which means you're lying right now.
On the post: Aereo To Supreme Court: Yes, Please Review The Ruling In Which We Trounced The TV Broadcasters
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Yes. Gwiz brought them up already. Seems perfectly consistent with Mike's assertion that Aero was specifically set up to be within the law, while FilmOn was only copying the appearance of Aero's setup as a pretense to legality.
Do you think that Mike's "length of the cord" argument has any legal merit?
That is not Mike's argument, it is the broadcasters'. They are the ones essentially arguing that the "length of the cord" makes Aero's service infringing. In this regard, Mike's argument - that the length of the cord is not significant - certainly has legal merit.
On the post: Aereo To Supreme Court: Yes, Please Review The Ruling In Which We Trounced The TV Broadcasters
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I'm calling you a liar because of all the lengthy discussions we've had. You often misrepresent my arguments, and you consistently misrepresent Mike's. You also consistently misrepresent case law - which could be simple ignorance, but I somehow doubt it. And you do so with the maximum of ad hominem attacks: "weasel," "Pirate Mike," "chicken," "dishonest," "lying slimeball," calling Kim Dotcom "Mike's buddy," and so forth.
Really? I have never said one right thing about the law?
You have never been right about any part of the law that we disagree about. No court has ever accepted any of the arguments you have made here (e.g. that Arcara is controlling in copyright infringement cases). And in every single case where a court has decided the issue at hand (e.g. Righthaven), the courts have sided against you. Your response has always been "the courts got it wrong."
I will admit that I enjoy debating you, because you often bring cases to my attention that I wasn't aware of. You're usually wrong about what those cases say, of course, so I end up with more case law that supports my position. It's very helpful to me, and I'm grateful for that. But it doesn't mean you're not a liar.
On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
Re: Re: Re: Re: Re: Re: Re: Do the Beastie Boys even have standing to sue?
Thinking about it, I believe that the statute is saying that if a derivative work is infringing, no part of it can be copyrighted. There are two reasons for this.
The first has to do with statutory construction. The statutes already say that copyright in a derivative work applies only to the new elements, and not to any part of the original work - whether the derivative work is infringing or not. So, there would be no reason at all to include that language in the statute, unless they meant it to be interpreted as I said.
The second is more decisive. It's well-settled law that copyrights are granted purely at the discretion of Congress, not as a matter of equity for authors. The monopoly privileges are purely statutory. So, if an author does not follow the statutes, they do not have any right to enjoy the monopoly authorized by those statutes. Obviously, if one infringes upon the rights granted by statute, they are not following the statutes.
So, it makes sense, even if the results seem unfair to the authors of derivative works.
On the post: Aereo To Supreme Court: Yes, Please Review The Ruling In Which We Trounced The TV Broadcasters
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It's Average Joe. He actually has had some legal debates with me that were (relatively) civil, but regarding Mike, he's been nothing but a liar who has no goal but to be disruptive to the site.
http://www.techdirt.com/articles/20120818/01171420087/funniestmost-insightful-comments-week-tec hdirt.shtml#c1210
And that post was written before he started a one-man crusade to turn the Techdirt comments into a See 'n Say. You can see examples of this here, here, here, here, here, here, here, here, and here, here, and in many more places as well.
I know that Tecdirt started filtering out comments that had the barnyard noises in them, but there was an easy way to get around that filter: don't make posts that were nothing but barnyard noises.
AJ is now claiming that Techdirt is blocking all of his IP addresses. (He even claimed once that Techdirt is blocking the IP address of his phone, if I remember correctly.)
Now, AJ consistently lies about pretty much everything, so I have no reason to believe he's telling the truth. On the other hand, I understand why Techdirt would block him. If he is blocked, it's solely for his own bad behavior, and he has nobody to blame but himself.
It's pretty telling that he won't even admit this possibility. Which is not a surprise. As I said, I've had discussions with him about the law, and he's never once been right. Courts always side against him, and when they do, he insists that it's the courts which must be wrong.
And by the way, this guy just graduated from law school, specializing in IP law. I suspect we'll have a very entertaining judicial smackdown if he ever appears before a judge. Not that he will - it's pretty obvious that, like Terry Hart, he wants to get a legal position for some copyright lobbying group, without ever entering a courtroom.
On the post: Aereo To Supreme Court: Yes, Please Review The Ruling In Which We Trounced The TV Broadcasters
Re: Mike and TD
That says a lot about who you work for.
On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
Re: Re: Re: Re: Re: Re: Do the Beastie Boys even have standing to sue?
The different versions might jump to different octaves (e.g. a fourth up vs. a fifth down), but they're the same notes, in the same key. And the transitions between those notes happen at the same beats within the measure (one, two, three, the upbeat of three, the upbeat of four) even if the rhythms between those transitions are different.
It's a different arrangement, but not nearly as different as e.g. a piano reduction of an orchestral score. Whether those elements are eligible for a separate copyright (assuming non-infringement) is something that only a judge could decide, in all likelihood.
The case law I'm referring to holds that you can't have copyright protection for an authorized derivative. Period. Full Stop.
That seems very odd to me, as I've seen numerous cases that held otherwise. (The aforementioned Gaiman v. McFarlane, Lee v. ART, Picket v. Prince.) It also directly contradicts 17 USC 103(b). The issue I've always seen focused on is whether the differences are significant enough to warrant additional protection. Can you cite the cases you're referring to?
...Unless you meant "unauthorized." That would make sense. I still wouldn't mind seeing those cases either way.
The portion of the copyright Act you cites seems to make clear (to me, anyway, and to most courts application 103(a)), that you can have copyright protection in the original material you contribute to an unauthorized derivative (which is why the cases I'm referring to are wrong, in my opinion).
It seems perfectly clear to me that it doesn't, though I recognize there's ambiguity in the language of the statute: "any part of the work in which such material has been used unlawfully" vs. "any part of the work in which such material has been used unlawfully." Again, which cases are you referring to?
On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
Re: Re: Re: Re: Do the Beastie Boys even have standing to sue?
It may be hard to hear, but the toy piano part is simply a reworking of the bass line. Same notes, different octaves, and a very slightly different rhythm.
That makes it an arrangement of the bass line. This could mean that it's eligible for a separate copyright as a derivative work, but I'm not sure that alone is enough to make it "significantly different from the copyrighted original" to be eligible for copyright protection. (From Gaiman v. McFarlane.)
There is actually some interesting (and mistaken, in my view) case law suggesting that you can't claim copyright in an unauthorized derivative (even in the portions that are original), so that could be an issue.
That's actually black-letter law. 17 USC 103(a) specifies that "protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully."
But that would require that the Beasties' version actually be unlawful, and that's not necessarily the case.
On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
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- Campbell v. Acuff-Rose
- Leibovitz v. Paramount Pictures Corp.
On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
Re: Re: Do the Beastie Boys even have standing to sue?
I don't think it's quite as clear cut as that. They did not copy the melody note-for-note from Shout, but the parody does copy the Beasties' melody note-for-note.
Then there's the whole arrangement aspect of pairing certain instruments and the inflection of the spoken words, which are also copied by GoldieBlox.
The Beasties certainly did copy the melody note-for-note, at least as much as that's possible when changing a soul song to a rap song. And the inflections are also exactly the same - when the Beasties sing the lyric "Girls" is exactly where the Isleys sing "Shout," for example.
It's pretty obvious when you listen to this mash-up of the two:
https://soundcloud.com/itshard2bgod/beastie-boys-vs-isley-brothers
Certainly, if the Isleys sued the Beasties for infringement, they would win (barring fair use).
So, the question is: if GoldieBlox used only those parts of the Beasties' song that are infringing upon "Shout," do the Beasties still have standing to sue? I actually don't know, since I've never run across a case like that.
On the post: Beastie Boys Not Letting Goldieblox Off; Launch Massive Countersuit
Re: Re: Do the Beastie Boys even have standing to sue?
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