The current debate in Australia is a proposed change from a specific exemption statute (fair dealing) to a case-by-case statute (fair use) mimicking US law.
That is kind of a red herring, because Linda Jaivin does not even mention the current "fair dealing" laws. In fact, she explicitly singles out royalties she has received (from e.g. universities) which would seem to fall under the "fair dealing" provisions for research and study.
All she does is rail against how any use of her work without payment is "theft" and "no different than saying it would be OK to smash your way into a designer's atelier and grab whatever outfits you fancy."
The only "evidence" you supplied was a large jump in independent musicians between 2004 and 2005. (You actually compared 2003 and 2005, for whatever reason, but there were 700 in November 2004, and 1310 in May 2005).
Let's assume that there was some change in the BLS's methodology that happened at that point. We'll look at the numbers pre-2004, and the numbers post-2004.
In Jan. 2002, there were 430 independent musicians. In Nov. 2004, there were 700. That is an increase of 63%.
In May 2005, there were 1310 independent musicians. In May 2012, there were 1830. That is an increase of 40%.
Even accounting for your "better sorting" theory, the number of independent musicians is increasing.
If you are basing your entire "sky is falling" on this sort of stat package, it's no wonder you seem so much at odds with the reality on the ground.
25 studies have found that piracy reduces digital content revenues
Most of which were funded by major copyright holders, and did not make their methodology public.
In the meantime, all independent studies have shown that people who pirate spend much more on music than people who don't.
There are 25% fewer musicians filing taxes as musicians in the US since Napster
This is total bullshit. Napster was started in 1999 and shut down in 2001. During that time there was an 18% increase in professional musicians. The number of working musicians didn't dip below the 1999 levels until 2010. And compared to the 1999 levels, there is only a 9% decrease in working musicians.
Musicians working in 1999: 46,440 (BLS)
Musicians working in 2001: 55,100 (BLS)
Musicians working in 2009: 47,260 (BLS)
Musicians working in 2013: 42,100 (BLS)
and those that are left make 45% less money than in 1999.
More bullshit. In 1999, the median percentile annual wage was $30,050 per year. The 2013 figures show hourly wages, not annual wages, but the median percentile hourly wage was $23.50 per hour.
If, as you claim, musicians in 1999 earned 45% more, they would be earning roughly $34.00 per hour. That would mean that in 1999, professional musicians, for whom music was their primary source of income, worked only 16 hours per week on average.
That is ridiculous. In fact, I think it's fair to say that they worked 40 hours per week on average. If that's the case, then they earned about $14.48 per hour.
That means that working musicians today earn about 62% more than they did in 1999.
If you want an apples-to-apples comparison, the first year that the BLS reported musicians' hourly wages was 2004. The median percentile hourly wage was $17.85. So, from 2004 to 2013, there was a 32% increase in hourly wages.
And Mr Holder is promising not to screw up Snowden royally if he comes back. Riiiight.
Yeah, that's exactly what I was thinking.
No, the "U.S." won't torture and kill Snowden. They'll just railroad him on charges that will guarantee him a life in prison. And turn a blind eye when the other prisoners do the job.
Mr. Parker, of whose CV I speak, in not a lawyer, so to refer to him as a litigator is far off the mark.
Oops, you're right, he's not. His bio from the EFF page:
Parker Higgins is an activist at the Electronic Frontier Foundation, specializing in issues at the intersection of freedom of speech and copyright, trademark, and patent law. He previously lived and worked in Berlin, Germany.
Parker studied at the Gallatin School of Individualized Study at New York University, where he developed a concentration of "Creativity, Freedom of Speech, and Intellectual Property." While at NYU, he served on the board of the global Students for Free Culture organization and as the president of its NYU chapter.
So, an activist and IP specialist, but not a lawyer. My bad. Quite a few of the people involved with the EFF are in fact lawyers, and I got confused.
I still haven't seen your CV, of course, so I have no reason to think that you have any right to outright insult him.
Incidentally, he did not express his views "at these hearings," as you claimed. Nobody from the EFF - nor any other public interest group - was invited to express their views at any one of these hearings.
We have exchanged comments in the past, but never has any begun with an insulting comment, and for you to do so is uncharacteristic.
The very first sentence in your comment was a dismissive insult. (One directed at a professional copyright litigator, no less.)
So, it is apparently not uncharacteristic for you. I guess you are saying that I should act better than you, and you probably have a point.
Let me proffer a minor example for you to mull over with respect to what you state is the purpose of copyright law, i.e., the law must benefit the general public, which in the ordinary course of events would seem to dictate that copyright should attach as and when a work is publicly disseminated.
I have no idea where you're getting that. Dissemination is certainly a goal, but so is incentivizing the production of artworks in the first place. It is an argument that copyright maximalists bring up all the time, and if they actually had any evidence to back up their argument, they would have a point.
Of course, we both know that copyright attaches upon fixation of a work in a tangible medium of expression from which is can be perceived for a least a transitory duration.
Some of that has to do with defining a "copy" for the purposes of the Copyright Act. But you seem to be talking about the "right of first publication," as opposed to post-publication monopoly rights.
That distinction may be interesting, but it is completely irrelevant to this discussion - a red herring. Because all of the people who testified before Congress were talking about "control" of a work after it has already been published.
It is also a question that shows that you're a lot more ignorant of copyright law than you think you are.
Because you are wrong. "Exclusive" does not equate to "control." The statutory licenses are one example: authors have the exclusive right to collect royalties, but not to control the use of a work if those royalties are paid.
Furthermore, if your assertion were true, then copyright transfers would also be unconstitutional, since the authors lose all control over their works. That idea, of course, is ridiculous.
The Constitution grants rights to Congress, and Article I, Section 8, Clause 8 grants the right to Congress to create copyright laws. This right is limited in four ways:
1. the rights that Congress grants must be for limited times;
2. they must grant some form of exclusive rights to authors;
3. they must cover the works of authors; and
3. they must be for the sole purpose of promoting the progress of science. (Or, in the words of the Supreme Court, they "must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.")
It is not about authors "controlling" their works, it is not about any kind of "property," and it is not about rewarding the "sweat of the brow" of authors.
Congress may exercise this right, or not, as it sees fit. It is the sole purview of Congress to decide the scope of those rights. If Congress decides that those rights include "control," then they do; if not, then they don't. The same applies to considering copyrights "property" - Congress could make those rights non-transferable, for example. And since the right to decide the scope of those laws is exclusive to Congress, they can rescind those rights if they choose, "without cause or complaint from anybody" (in the words of Thomas Jefferson).
I've quoted this passage before, but I will do so again, because it is awesome:
It will be seen, therefore, that the spirit of any act which Congress is authorized to pass must be one which will promote the progress of science and the useful arts, and unless it is designed to accomplish this result and is believed, in fact, to accomplish this result, it would be beyond the power of Congress.
The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights, but upon the ground that the welfare of the public will be served and progress of science and useful arts will [be] promoted by securing to authors for limited periods the exclusive rights to their writings. The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors.
In enacting a copyright law Congress must consider, as has been already stated, two questions: First, how much will the legislation stimulate the producer and so benefit the public; and, second, how much will the monopoly granted be detrimental to the public. The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that outweighs the evils of the temporary monopoly.
- House Report on the Copyright Act of 1909
That quote is particularly apropos here, because it was that same Act that established statutory royalties. For the reasons they did so, here is another quote from that same report:
It was at first thought by the committee that the copyright proprietors of musical compositions should be given the exclusive right to do what they pleased with the rights it was proposed to give them to control and dispose of all rights of mechanical reproduction, but the hearings disclosed that the probable effect of this would be the establishment of a mechanical-music trust. It became evident that there would be serious danger that if the grant of right was made too broad, the progress of science and useful arts would not be promoted, but rather hindered, and that powerful and dangerous monopolies might be fostered which would be prejudicial to the public interests. This danger lies in the possibility that some one company might secure, by purchase or otherwise, a large number of copyrights of the most popular music, and by controlling these copyrights monopolize the business of manufacturing the selling music producing machines, otherwise free to the world. [...]
How to protect him in these rights without establishing a great music monopoly was the practical question the committee had to deal with. The only way to effect both purposes, as it seemed to the committee, was, after giving the composer the exclusive right to prohibit the use of his music by the mechanical reproducers, to provide that if he used or permitted the use of his music for such purpose then, upon the payment of a reasonable royalty, all who desired might reproduce the music.
In other words, they were not acting unconstitutionally when they created statutory royalties. Quite the opposite. They were fulfilling the Constitutional requirement that the rights be beneficial to the general public.
Re: Re: Re: Re: Re: Re: Re: All those examples you list, are not really "creators"...
Literally billions of transactions worldwide on a daily basis that in some measure touch upon copyright law, and yet one here is being asked to believe that some actions that may fall outside the intent of the law are representative of a significant number or such transactions, perhaps even representing the norm.
It doesn't have to be "the norm" to cause significant social ills. If the law allows situations like those above to happen even once, then the law is problematic, and needs to be changed. The fact that it happens a whole lot of times - and that paragraph is merely the tip of the iceberg - shows that the law is broken.
It especially needs to be fixed when the fix would not impact the "literally billions" of legitimate transactions. Something like a federal anti-SLAPP law, that would include copyright lawsuits, would accomplish this.
In any case, it makes it clear that Giovanetti's claim that copyright holders "have no reason to censor anything" is a total lie. As I wrote in an earlier comment, some of the testimony given in this very hearing celebrates censorship as a legitimate use of copyright.
Considering your skepticism about giving citizens rights
You missed the entire point. It's not about granting rights to citizens in general.
It's about granting rights to certain citizens to act against the rights of other citizens. That was pretty clear with the phrase "vis a vis each other."
So, I'll put the same question to you. Should we adopt a tiered scrutiny to consider case by case which citizens have the legal ability to infringe on the rights of others? Or would it be better to have some sort of expert administrative body that could determine more specifically which citizens have the legal ability to take rights away from others?
Re: Re: Re: Re: Re: All those examples you list, are not really "creators"...
LOL What "evil" is the law "sanctioning"?
Seriously? All of the "examples" that OOTB was talking about.
Read the paragraph that starts with "Oh, really?" and ends with "Joyce." All of those actions taken by copyright holders are far more of a social evil than is copyright infringement itself.
The idea that copyright holders "have no reason to censor anything" is particularly laughable in this case.
Because in his written testimony from this very hearing, Eugene Mopsik talks explicitly about using copyright as a tool of censorship:
Further, copyright protection is necessary to allow the photographer to say No when he or she feels it to be appropriate. There are situations in which possible uses of images are contrary to what the photographer would and should allow. For example, in recent elections, there have been many instances in which photographs were illegally appropriated by candidates and used out of context to support candidates and issues that were diametrically opposed to the beliefs and intentions of the photographers involved. Without copyright, there would simply be no redress available.
It's remarkable, because a) he's wrong (there is redress in e.g. libel/slander laws), and b) copyright law was never, ever intended to be used like this. As a matter of fact, uses like this likely fall under fair use.
Most importantly, he is unequivocably advocating a restriction on expressive speech because the ideas "were diametrically opposed to the beliefs and intentions" of the artists. In First Amendment parlance, this is called a content-based speech restriction. It is generally considered the worst type of speech restriction. And Mopsik is explicitly saying that copyright should be used to do it.
It makes the claims by Giovanetti (and, to a lesser extent, Aistars) laughably false, to the point where they must know they're lying.
Even though nobody is allowed to sell any products in North Korea, I think the government should go ahead and let everyone get IP protection there.
As evidence shows, excessive IP protection leads to significant economic slowdown. Especially when the IP holders don't actually have products on the market.
The thing is, from the link you provided to the House website, there are no witnesses other than the ones you listed.
No representatives from ASCAP, BMI, SAG, AFTRA, or AFM. These are all part of the "legacy" business model, and ostensibly represent working artists, but they're not represented either.
But even more surprising is that the RIAA and MPAA aren't being represented either, other than by their astroturf organization the Copyright Alliance. You'd think that they'd be speaking to Congress directly, on their own behalf. (FYI, Tor Hansen is listed as representing YepRoc/Redeye, but in fact he is representing A2IM. It's in the PDF of his prepared statement.)
Instead, we get a bunch of people who represent very, very, very minor parts of the creative industry, by anyone's standard. It's like nobody else bothered to show up. The hearing is going to be a total joke.
p.s. I'm reading through some of the testimony right now. I do agree with some of it, but a lot of it doesn't pass the sniff test. The last few paragraphs of Mopsik's testimony (pg. 9) are a good example of this.
Just put some token DRM in the signal, claim it is to prevent skipping commercials, then going to the bathroom is circumvention..
The programs are not delivered to the Dish Network with all of the commercials already programmed in, so it would be impossible for Fox to do this. (And programming in the commercials themselves would be economic suicide on Fox's part, since this is how Dish makes its money.)
If something like this were to be done, it would have to be done by the broadcaster (Dish in this case). Since they're the ones that are offering the service to skip commercials, that's unlikely.
Also, Dish does not actually own any of the copyrights in question, so it's unlikely they'd be able to enforce DRM anti-circumvention restrictions. Of course, the anti-circumvention laws don't specify that they have to be put there by the copyright holder (or even with the copyright holder's permission), so who knows how that would go in court.
Your third prong, about "right and ability to control" is one of the prongs of vicarious liability.
I specified that they have the right and ability to control the material contribution.
As the passage that you quoted makes this clear. Because inline linking can materially contribute to infringement,
Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works, and failed to take such steps.
If you want to nitpick and say "the right and ability to control the material contribution" is somehow different than the ability to "take simple measures," then fine.
In any case, there are in fact four prongs, if you want to get technical. In the exact phrasing of the various ruling:
1. Material assistance to direct infringement: "substantially assists [...] distribut[ing] infringing copies [...] and assists [...] users to access infringing materials" (this case); "evidence of actual infringement by recipients of the device, the software in this case" (Grokster); "Providing a service that allows for the automatic distribution of [material], infringing and noninfringing" (Netcom); "engage in personal conduct that encourages or assists the infringement" (Napster)
2. "actual knowledge that specific infringing material is available using its system" (Napster)
3. "able to take simple measures to prevent further damage to plaintiffs' copyrighted works" (Netcom)
4. "failed to take such steps" (from... well, all cases, really)
The most important aspect - the one that all cases, including this one, focus on the most - is the second "prong." This is because a contributory infringer is "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another" (Gershwin)
Or, as the court said in Grokster, "one infringes contributorily by intentionally inducing or encouraging direct infringement."
In fact, the issue that this court had with the district court ruling was not that hyperlinking could not be a "material contribution." The exact quote from the district court: "Nevertheless, P10 argues, Google contributes differently: it provides an 'audience' and brand recognition for infringing third-party websites and it advertises for the sites. P10 overstates Google's actual conduct and confuses search technology with active encouragement and promotion of infringing activity."
This court was saying that you do not need "active encouragement and promotion" to be liable for contributory infringement. Instead, "a service provider's knowing failure to prevent infringing actions could be the basis for imposing contributory liability."
That was the entire issue.
As far as the hyperlinking issue, I'll let a quote from this case speak for itself:
Both Napster and Netcom acknowledge that services or products that facilitate access to websites throughout the world can significantly magnify the effects of otherwise immaterial infringing activities.
In other words: already settled, for the most part, and not the reason this court criticizes the district court.
Repeating the same passage you quoted originally, while completely ignoring everything I said, is not going to make your statement any more true.
Read this part of what you quoted:
Here, the district court held that [...] Google did not materially contribute to infringing conduct because it did not undertake any substantial promotional or advertising efforts to encourage visits to infringing websites [...]
Now read this passage from footnote 11 in the same ruling:
Google's activities do not meet the "inducement" test explained in Grokster because Google has not promoted the use of its search engine specifically to infringe copyrights.
On the post: Author Claims That 'Fair Use Is Theft By Any Other Name'
Re:
That is kind of a red herring, because Linda Jaivin does not even mention the current "fair dealing" laws. In fact, she explicitly singles out royalties she has received (from e.g. universities) which would seem to fall under the "fair dealing" provisions for research and study.
All she does is rail against how any use of her work without payment is "theft" and "no different than saying it would be OK to smash your way into a designer's atelier and grab whatever outfits you fancy."
On the post: Author Claims That 'Fair Use Is Theft By Any Other Name'
Re: Re: Re: Re: Re: Re: Re: Hmm, but Mike, your living supposedly depends on re-writing!
Oh, you work for the NSA?
On the post: Writer of 'Daredevil' Comics: Equating Piracy With Lost Sales Is 'Baloney'
Re: Re: Re: Facts are stubborn things
You said this before, and you had no evidence then, either.
The only "evidence" you supplied was a large jump in independent musicians between 2004 and 2005. (You actually compared 2003 and 2005, for whatever reason, but there were 700 in November 2004, and 1310 in May 2005).
Let's assume that there was some change in the BLS's methodology that happened at that point. We'll look at the numbers pre-2004, and the numbers post-2004.
In Jan. 2002, there were 430 independent musicians. In Nov. 2004, there were 700. That is an increase of 63%.
In May 2005, there were 1310 independent musicians. In May 2012, there were 1830. That is an increase of 40%.
Even accounting for your "better sorting" theory, the number of independent musicians is increasing.
If you are basing your entire "sky is falling" on this sort of stat package, it's no wonder you seem so much at odds with the reality on the ground.
On the post: Writer of 'Daredevil' Comics: Equating Piracy With Lost Sales Is 'Baloney'
Re: Facts are stubborn things
Most of which were funded by major copyright holders, and did not make their methodology public.
In the meantime, all independent studies have shown that people who pirate spend much more on music than people who don't.
There are 25% fewer musicians filing taxes as musicians in the US since Napster
This is total bullshit. Napster was started in 1999 and shut down in 2001. During that time there was an 18% increase in professional musicians. The number of working musicians didn't dip below the 1999 levels until 2010. And compared to the 1999 levels, there is only a 9% decrease in working musicians.
Musicians working in 1999: 46,440 (BLS)
Musicians working in 2001: 55,100 (BLS)
Musicians working in 2009: 47,260 (BLS)
Musicians working in 2013: 42,100 (BLS)
and those that are left make 45% less money than in 1999.
More bullshit. In 1999, the median percentile annual wage was $30,050 per year. The 2013 figures show hourly wages, not annual wages, but the median percentile hourly wage was $23.50 per hour.
If, as you claim, musicians in 1999 earned 45% more, they would be earning roughly $34.00 per hour. That would mean that in 1999, professional musicians, for whom music was their primary source of income, worked only 16 hours per week on average.
That is ridiculous. In fact, I think it's fair to say that they worked 40 hours per week on average. If that's the case, then they earned about $14.48 per hour.
That means that working musicians today earn about 62% more than they did in 1999.
If you want an apples-to-apples comparison, the first year that the BLS reported musicians' hourly wages was 2004. The median percentile hourly wage was $17.85. So, from 2004 to 2013, there was a 32% increase in hourly wages.
Any way you slice it, you're a liar.
On the post: Bradley Manning Found Not Guilty Of Aiding The Enemy But Convicted On Other Charges
Re:
Yeah, that's exactly what I was thinking.
No, the "U.S." won't torture and kill Snowden. They'll just railroad him on charges that will guarantee him a life in prison. And turn a blind eye when the other prisoners do the job.
On the post: Telco Astroturfing Tries To Bring Down Reviews Of Susan Crawford's Book
Re: Re: Re: Astroturfers / shills can be effective
That's probably not AJ. I've never seen him abuse caps or put spaces between words and punctuation, like this person consistently does.
If anything, it reads more like English-impaired idiots like OOTB, or (blast from the past) Darryl.
On the post: Why Yes, Copyright Can Be Used To Censor, And 'Fair Use Creep' Is Also Called 'Free Speech'
Re: Re: Re: Re: Re: Re: Re:
Oops, you're right, he's not. His bio from the EFF page:
So, an activist and IP specialist, but not a lawyer. My bad. Quite a few of the people involved with the EFF are in fact lawyers, and I got confused.
I still haven't seen your CV, of course, so I have no reason to think that you have any right to outright insult him.
Incidentally, he did not express his views "at these hearings," as you claimed. Nobody from the EFF - nor any other public interest group - was invited to express their views at any one of these hearings.
On the post: Why Yes, Copyright Can Be Used To Censor, And 'Fair Use Creep' Is Also Called 'Free Speech'
Re: Re: Re: Re: Re:
The very first sentence in your comment was a dismissive insult. (One directed at a professional copyright litigator, no less.)
So, it is apparently not uncharacteristic for you. I guess you are saying that I should act better than you, and you probably have a point.
Let me proffer a minor example for you to mull over with respect to what you state is the purpose of copyright law, i.e., the law must benefit the general public, which in the ordinary course of events would seem to dictate that copyright should attach as and when a work is publicly disseminated.
I have no idea where you're getting that. Dissemination is certainly a goal, but so is incentivizing the production of artworks in the first place. It is an argument that copyright maximalists bring up all the time, and if they actually had any evidence to back up their argument, they would have a point.
Of course, we both know that copyright attaches upon fixation of a work in a tangible medium of expression from which is can be perceived for a least a transitory duration.
Some of that has to do with defining a "copy" for the purposes of the Copyright Act. But you seem to be talking about the "right of first publication," as opposed to post-publication monopoly rights.
That distinction may be interesting, but it is completely irrelevant to this discussion - a red herring. Because all of the people who testified before Congress were talking about "control" of a work after it has already been published.
On the post: Why Yes, Copyright Can Be Used To Censor, And 'Fair Use Creep' Is Also Called 'Free Speech'
Re: Re: Re:
It is also a question that shows that you're a lot more ignorant of copyright law than you think you are.
Because you are wrong. "Exclusive" does not equate to "control." The statutory licenses are one example: authors have the exclusive right to collect royalties, but not to control the use of a work if those royalties are paid.
Furthermore, if your assertion were true, then copyright transfers would also be unconstitutional, since the authors lose all control over their works. That idea, of course, is ridiculous.
The Constitution grants rights to Congress, and Article I, Section 8, Clause 8 grants the right to Congress to create copyright laws. This right is limited in four ways:
1. the rights that Congress grants must be for limited times;
2. they must grant some form of exclusive rights to authors;
3. they must cover the works of authors; and
3. they must be for the sole purpose of promoting the progress of science. (Or, in the words of the Supreme Court, they "must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.")
It is not about authors "controlling" their works, it is not about any kind of "property," and it is not about rewarding the "sweat of the brow" of authors.
Congress may exercise this right, or not, as it sees fit. It is the sole purview of Congress to decide the scope of those rights. If Congress decides that those rights include "control," then they do; if not, then they don't. The same applies to considering copyrights "property" - Congress could make those rights non-transferable, for example. And since the right to decide the scope of those laws is exclusive to Congress, they can rescind those rights if they choose, "without cause or complaint from anybody" (in the words of Thomas Jefferson).
I've quoted this passage before, but I will do so again, because it is awesome:
- House Report on the Copyright Act of 1909
That quote is particularly apropos here, because it was that same Act that established statutory royalties. For the reasons they did so, here is another quote from that same report:
In other words, they were not acting unconstitutionally when they created statutory royalties. Quite the opposite. They were fulfilling the Constitutional requirement that the rights be beneficial to the general public.
On the post: Why Yes, Copyright Can Be Used To Censor, And 'Fair Use Creep' Is Also Called 'Free Speech'
Re: Re: Re: Re: Re: Re: Re: All those examples you list, are not really "creators"...
It doesn't have to be "the norm" to cause significant social ills. If the law allows situations like those above to happen even once, then the law is problematic, and needs to be changed. The fact that it happens a whole lot of times - and that paragraph is merely the tip of the iceberg - shows that the law is broken.
It especially needs to be fixed when the fix would not impact the "literally billions" of legitimate transactions. Something like a federal anti-SLAPP law, that would include copyright lawsuits, would accomplish this.
In any case, it makes it clear that Giovanetti's claim that copyright holders "have no reason to censor anything" is a total lie. As I wrote in an earlier comment, some of the testimony given in this very hearing celebrates censorship as a legitimate use of copyright.
On the post: Cathy Gellis' Favorite Techdirt Posts Of The Week
Re:
You missed the entire point. It's not about granting rights to citizens in general.
It's about granting rights to certain citizens to act against the rights of other citizens. That was pretty clear with the phrase "vis a vis each other."
So, I'll put the same question to you. Should we adopt a tiered scrutiny to consider case by case which citizens have the legal ability to infringe on the rights of others? Or would it be better to have some sort of expert administrative body that could determine more specifically which citizens have the legal ability to take rights away from others?
On the post: Why Yes, Copyright Can Be Used To Censor, And 'Fair Use Creep' Is Also Called 'Free Speech'
Re: Re: Re: Re: Re: All those examples you list, are not really "creators"...
Seriously? All of the "examples" that OOTB was talking about.
Read the paragraph that starts with "Oh, really?" and ends with "Joyce." All of those actions taken by copyright holders are far more of a social evil than is copyright infringement itself.
On the post: Why Yes, Copyright Can Be Used To Censor, And 'Fair Use Creep' Is Also Called 'Free Speech'
No censorship, except when Mopsik wants it
Because in his written testimony from this very hearing, Eugene Mopsik talks explicitly about using copyright as a tool of censorship:
It's remarkable, because a) he's wrong (there is redress in e.g. libel/slander laws), and b) copyright law was never, ever intended to be used like this. As a matter of fact, uses like this likely fall under fair use.
Most importantly, he is unequivocably advocating a restriction on expressive speech because the ideas "were diametrically opposed to the beliefs and intentions" of the artists. In First Amendment parlance, this is called a content-based speech restriction. It is generally considered the worst type of speech restriction. And Mopsik is explicitly saying that copyright should be used to do it.
It makes the claims by Giovanetti (and, to a lesser extent, Aistars) laughably false, to the point where they must know they're lying.
On the post: Companies Request Special Permission From Feds To Register Intellectual Property In North Korea
Go ahead
As evidence shows, excessive IP protection leads to significant economic slowdown. Especially when the IP holders don't actually have products on the market.
North Korea's economy will crumble in no time!
On the post: Wait, I Thought The Next Congressional Copyright Hearing Was Supposed To Be About Hearing From Creators?
Very surprising list
No representatives from ASCAP, BMI, SAG, AFTRA, or AFM. These are all part of the "legacy" business model, and ostensibly represent working artists, but they're not represented either.
But even more surprising is that the RIAA and MPAA aren't being represented either, other than by their astroturf organization the Copyright Alliance. You'd think that they'd be speaking to Congress directly, on their own behalf. (FYI, Tor Hansen is listed as representing YepRoc/Redeye, but in fact he is representing A2IM. It's in the PDF of his prepared statement.)
Instead, we get a bunch of people who represent very, very, very minor parts of the creative industry, by anyone's standard. It's like nobody else bothered to show up. The hearing is going to be a total joke.
p.s. I'm reading through some of the testimony right now. I do agree with some of it, but a lot of it doesn't pass the sniff test. The last few paragraphs of Mopsik's testimony (pg. 9) are a good example of this.
On the post: Court Says Broadcasters Can't Use Copyright To Block Commercial Skipping
Re:
I see what you did there.
On the post: Court Says Broadcasters Can't Use Copyright To Block Commercial Skipping
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The programs are not delivered to the Dish Network with all of the commercials already programmed in, so it would be impossible for Fox to do this. (And programming in the commercials themselves would be economic suicide on Fox's part, since this is how Dish makes its money.)
If something like this were to be done, it would have to be done by the broadcaster (Dish in this case). Since they're the ones that are offering the service to skip commercials, that's unlikely.
Also, Dish does not actually own any of the copyrights in question, so it's unlikely they'd be able to enforce DRM anti-circumvention restrictions. Of course, the anti-circumvention laws don't specify that they have to be put there by the copyright holder (or even with the copyright holder's permission), so who knows how that would go in court.
On the post: Rep. Justin Amash Now Looking To Strip NSA Of Its Power To Collect Phone Data On Innocent Americans
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Yeah, I know. I read that and though, "you just had to go there, didn't you, Tim?"
On the post: Perfect 10 Loses Yet Another Ridiculous Copyright Lawsuit
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I specified that they have the right and ability to control the material contribution.
As the passage that you quoted makes this clear. Because inline linking can materially contribute to infringement,
If you want to nitpick and say "the right and ability to control the material contribution" is somehow different than the ability to "take simple measures," then fine.
In any case, there are in fact four prongs, if you want to get technical. In the exact phrasing of the various ruling:
1. Material assistance to direct infringement: "substantially assists [...] distribut[ing] infringing copies [...] and assists [...] users to access infringing materials" (this case); "evidence of actual infringement by recipients of the device, the software in this case" (Grokster); "Providing a service that allows for the automatic distribution of [material], infringing and noninfringing" (Netcom); "engage in personal conduct that encourages or assists the infringement" (Napster)
2. "actual knowledge that specific infringing material is available using its system" (Napster)
3. "able to take simple measures to prevent further damage to plaintiffs' copyrighted works" (Netcom)
4. "failed to take such steps" (from... well, all cases, really)
The most important aspect - the one that all cases, including this one, focus on the most - is the second "prong." This is because a contributory infringer is "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another" (Gershwin)
Or, as the court said in Grokster, "one infringes contributorily by intentionally inducing or encouraging direct infringement."
In fact, the issue that this court had with the district court ruling was not that hyperlinking could not be a "material contribution." The exact quote from the district court: "Nevertheless, P10 argues, Google contributes differently: it provides an 'audience' and brand recognition for infringing third-party websites and it advertises for the sites. P10 overstates Google's actual conduct and confuses search technology with active encouragement and promotion of infringing activity."
This court was saying that you do not need "active encouragement and promotion" to be liable for contributory infringement. Instead, "a service provider's knowing failure to prevent infringing actions could be the basis for imposing contributory liability."
That was the entire issue.
As far as the hyperlinking issue, I'll let a quote from this case speak for itself:
In other words: already settled, for the most part, and not the reason this court criticizes the district court.
On the post: Perfect 10 Loses Yet Another Ridiculous Copyright Lawsuit
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Read this part of what you quoted:
Now read this passage from footnote 11 in the same ruling:
So, exactly as I said.
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