In many markets, including mine, Ticketmaster does not promote anything. They just sell tickets. That I could buy at the box office without the additional fees.
Ticketmaster is not even a middleman - it does not sell tickets, it sells a ticket delivery system. If not for TM's restrictive relationship with the promoters and venue, I could get the same product by paying a kid to ride his bike over to the venue and buy my ticket.
Well, but there is more stupid here than might meet the naked eye. Cars manufactured _domestically_ must have a certificate. Cars that are imported must have a certificate unless they are excluded from the requirement. There are a few ways to get an exclusion, including using an excluded (unregulated) fuel. For cars built after 2004, electricity or electric fuel cells are excluded: http://www.epa.gov/otaq/imports/factmnb.htm.
So if the Tesla were built overseas and imported to the US, it would not have needed a certificate - it would have been excluded by the express provisions of the regulation because it has no tailpipe. Obviously, requiring domestic electric car makers to comply with regulations that foreign ones do not undermines the competitiveness of domestic producers. Either the regulation is intended to put US companies at a disadvantage, or it is archaic. Makes one sympathize a bit with the "Who Killed The Electric Car" crowd.
Wait, why not? Warner Bros. is harmed by the conduct, and it is an unfair and deceptive act or practice. If Toberoff's clients are not actually receiving any benefit from the lawsuits at all then Warner Bros. has a case.
If the plaintiffs are merely knowingly getting a bad deal, Warner Bros. should probably lose. It still has standing - it can complain about another's harmful breach of duty, even if the duty wasn't owed to it - but here it will have no ability to prove the breach. The plaintiffs apparently thought it was a good enough deal to enter into it.
Apart from the pot-calling-the-kettle-black issue of the content industry complaining about the unfairness of copyright rules, Warner Bros. has a valid point here. I do not know if Toberoff is one, but unscrupulous lawyers have made an industry out of exploiting stupid IP law to benefit themselves at the expense of society (and sometimes their clients).
As a sop to those who argue that copyright creates a necessary incentive, how about a compromise: 7 years, with mandatory registration and formalities, for free. As many 7 year renewal terms as you can eat for a price that increases geometrically with each renewal.
As long as your monopoly is productive, you would be allowed to maintain it provided you paid back (a decent proxy for) its ever-increasing cost to the public. At some point, the public's interest in gaining access to culture will outweigh the value to you of maintaining the monopoly, and the work will pass into the public domain. For "Smile," I'll bet this would have happened decades ago.
This is plainly copyright infringement. But they are extremely unlikely to sue, as the owners of the copyright would first have to admit to creating and using a circumvention device in violation of the DMCA. And questions might swirl about whether they also committed independent violations (for instance, by offering the cracked game itself for download after cracking it).
The fact that the tool they are using was created by someone else is not what absolves them. Instead, it is that they are authorized to get at the underlying content. So the DRM is not "copy protection" or "access protection" as to them.
As a DJ you pay for derivative work rights and sync rights, not just the basic cost of a CD, right? Your software company pays patent royalties on its UI, right? No one has ever "pirated" music or software. Some people have appropriated music or software in ways that protectionist lobbyists have managed to persuade legislators to declare illegal. There is a difference, both moral and legal.
No one ever bought your music or your software because doing so was legal - they bought it because they liked the music or software. You do not make money by being pro-copyright, you make money by producing better music or software. On the flipside, you do not lose money when or because people disagree with your misinformed stance on copyright.
Just to play God's advocate: it seems equally likely that longer copyrights actually undermine the economic motivation to continue creating, because an artist could conceivably (and in some cases correctly) believe that their second work will actually undermine the market for their first. The most obvious example is 2nd editions: it hardly makes sense to create a new edition of a work until the prior edition has sucked the market dry.
If trye, the argument then becomes about whether new editions of old works are more or less valuable than wholly new works (sight unseen). Not an argument capable of being won, I think.
No, but it is frequent that investors invest with an eye to returns for the next 20 years. Notice that that is the patent term for many US patents, in which people and institutions often invest in hopes of a 20-year revenue stream and the potential for future streams from derivative works.
On the other hand, fixed durations are counterproductive (although a fixed maximum duration might make sense). If the work contributes to society but has no economic value in its first 3 years, society should not have to wait 17 more to use it. On the other hand, if it is still selling like hotcakes after 20 years, or if it took 17 years to get warmed up but then hit and has sold well for 3, it seems unfair that its life should arbitrarily end. Among other things, that disincentives certain kinds of creation (namely, creations whose time has not yet come - precisely the kind of creations that promote progress).
A better strategy is to permit renewals on a showing of economic viability. And a showing of economic viability can be made simply by requiring a fee for renewal. So short initial terms with short renewal terms for a fee.
Agreed, which is why copyright should track the the current value of the work. As long as an author, or their heir or devisee, is producing copies for profit they should be permitted a certain amount of exclusivity in doing so. But when they stop, copyright should die. Thus, a sensible system will have copyright for a limited (short) time, then renewals for a fee. Of course, this must needs require registration of every copyright work, but that is not a bad thing - it facilitates finding the copyright-holder in order to obtain permissions and licenses.
The other point the article makes is about copyright's scope, and it is equally correct. Determining whether a particular work is truly "derivative" of the original is not easy. But that does not mean the definition should be over-inclusive. Courts specialize in difficult line-drawing problems, and they should not get off the hook on this one. Regardless of one's _inspiration_ for a work, it is not (and should not be considered to be) derivative of an earlier work unless it actually includes substantial copyrightable elements of the earlier work.
Many states in the US have similar laws. They may not explicitly call out the practice of bait and switch, but they certainly make unfair or deceptive acts or practices unlawful. Some provide for a treble-damages remedy, as well as a public investigation and enforcement option. This is the stuff AG-led class actions are made from.
I am curious about your description of this law applying to "goods." Generally, goods are any tangible personal property. It is at least an open question as to whether intangible personal property (including copyrights) are "goods". They are not "services".
If they are "goods," isn't DRM a violation of this law? It permits the "content owner" to disable your access to the content. Admittedly, you agree to be bound by a DRM agreement that permits this conduct by the content owner, but isn't that in the nature of an impermissible waiver of your right to have the good function as it did at purchase?
What he said. All of this discussion of intellectual "property" assumes qualities of intangible goods that simply do not exist.
When lawyers talk about "property," at least in modern jurisprudence, they are referring to a "bundle of rights." That bundle generally includes the right to exclude others from use. It may include some rights to use and assign. None of those rights existed for, say, music recordings until 1970, and arguably they still do not. Referring to a copyright in a sound recording as "intellectual property" was, thus, a clear misnomer until very recently.
What Terry said. The Court's ruling here is not novel, and does not change much. Masnick's interpretation seems right: federal courts can hear copyright cases involving unregistered copyrights, but holders of unregistered copyrights cannot bring such cases.
Where this may change things for some litigants is in counterclaims. If the registration bar were jurisdictional, a litigant could not bring a counterclaim alleging infringement of an unregistered copyright. If it is not, even though one cannot bring an original action one could file the claim as a counterclaim.
In practice, this means some litigants can save $35. It is common practice to simply register the copyright before filing. For most works doing so is cheap, easy, and noncontroversial, and avoids the question altogether.
Re: Re: Re: Thoughts from a property/casualty insurance underwriter
Further to this, insurance underwriting is immensely regulated, and only certain measures are permissible in ratemaking. In other words, depending on the state and the regulatory body a metric like "use of social media" may have to be approved before it can be used in setting premiums. If there is no demonstrable actuarial basis for it, such approval may be hard or impossible to obtain.
Also, there must be a means for collecting the information. For most risks, that would be prohibitively expensive. It hardly makes sense to hire a PI to find your twitter name and analyze your postings for the last year for a few hundred $$ in premium. It makes much more sense on the backend, when you are adjusting a $30,000 claim for missing A/V equipment and jewelry.
What an upside down reading of the Bill of Rights. It does not set out the _limit_ of individual rights, it sets out a minimum for clarificatory purposes. We have rights that are not in there.
Ours is (theoretically) a limited form of government. It isn't that the government can do anything except what appears in the Bill of Rights, it's that the government is not permitted to do anything except what we tell it to do and even that must be subject to limits. Nowhere in the Constitution does it even hint that the government is permitted to spy on little kids eating sour candies in their bedroom. Don't take my word for it: search the document for "Mike n' Ike's".
This wouldn't even pass the sniff test for a US design patent infringement claim. Among other things, design patents do not protect against derivative works - as long as you are not practicing the protected design itself, you can be inspired by it to create a new design.
But I'm not sure I understand the claim that in the US we do not permit copyright on clothing design. What's at issue in this case cannot be the shape of the bikinis, because the shapes are totally different. So it must be the fabric design - the patterns and color choices. And fabrics most definitely _are_ protected in the US. And clothing design is typically also protected by trademark, if it acquires secondary meaning (surely a design as distinctive as this one has secondary meaning, at least to clothing insiders that form the primary market). Different penalties, same C&D.
You are absolutely correct, except the bit about it being within the law to use the DMCA to require takedown of a transformative, parodic fair use. Assuming this work was as it has been described, it was not a violation of copyright because prohibition of this work was not among the rights granted to the copyright holder. The DMCA permits takedown of infringements. This wasn't one.
But I agree that the DMCA permits and even mandates a knee-jerk reaction whereas injunctive relief demands some process and at least the application of the judge's reason to the question of likelihood of success. And I agree that that is an excellent reason for a company that is unlikely to face litigation for doing so, to overreach. That does not for a moment make its conduct legal. As I'm sure you would agree, the fact that people get away with illegal conduct does not legitimize it.
The trouble is that the copyright law itself is facially invalid as violative of the First Amendment, even without government application. The "state action" requirement is no defense to a charge that the state has unconstitutionally created a condition whereby private actors can do what the state could not.
Because copyright is often contentious, a metaphor may help. Let's say Congress enacted a law that said private individuals may shoot and kill anyone who speaks out against the current government, without repercussion, and that this law preempts any state law to the contrary. Such a law would clearly be facially unconstitutional because (among other things) it violates the First Amendment - the government would be creating a condition in which people could not speak. Admittedly, the government would not be applying the law in any case - it would not be doing the shooting - but it would have created a situation in which the shooting would occur.
So too here. Congress has created a condition in which speech is obviously and demonstrably stifled by giving private actors the ability to preemptively cut off speech based on its content and origin. Under the First Amendment, that is not a permissible exercise of Congress's power.
This is a clever argument, but at least a little misguided. As an initial matter, it assumes that you have a right, or at least a property interest, in copyright regardless of Congressional action. The Constitution says the opposite: it says the power rests in _Congress_ to promote progress in this way, not that a right rests in the people to have it done.
This is a signficant distinction. The Founders certainly did not believe in a natural or even a common law right in the author to copyright. That notion (which sprang out of a political debate in England around 1709,) had largely been debunked even in English law. American colonial printers aggressively reprinted British works that were still under British copyright, sometimes without attribution and almost uniformly without royalties to the author. The first US copyright law, passed in 1790, covered only books and maps created, printed, distributed, and registered in the US by a US citizen: sheet music would not be covered for another century, and recordings of music performances would wait until the 1970s. Foreign works were not covered until the mid 19th century.
In other words, "not having any copyright at all" is the default state of American law for most works. Only recently has copyright been extended. So no natural or common law right exists top copyright. Moreover, it cannot be a taking for Congress to stop giving away something Congress has no obligation to give away, and nothing in Constitutional or common law requires Congress to provide a copyright.
Incidentally, the argument that the IP clause is the source of fair use is interesting. If correct, it further weakens the holdings on this issue. After all, if the IP clause itself requires fair use, then the First Amendment must require _even more_ expressive rights. Note that the First Amendment is an amendment, adopted later in time to the original Constitution. That means that its mandate is not to be read _with_ the IP clause, but is to be read as _superseding_ the IP clause (this is the same procedure the Supreme Court uses with the 14th Amendment vis-a-vis the 11th) to the degree they conflict in any measure. If the IP clause includes limits on copyright (and I agree that it clearly does,) then the First Amendment acts as a further limit, that nothing Congress is empowered to do by the IP clause may in any respect abridge anyone's freedom of speech, or of the press.
On the post: Live Nation's Plans To Annoy More People?
Re: Re:
Ticketmaster is not even a middleman - it does not sell tickets, it sells a ticket delivery system. If not for TM's restrictive relationship with the promoters and venue, I could get the same product by paying a kid to ride his bike over to the venue and buy my ticket.
On the post: Tesla Motors Pays Fine For Lacking Emissions Certificate Of Conformity... Even Though It Lacks Emissions
Re:
So if the Tesla were built overseas and imported to the US, it would not have needed a certificate - it would have been excluded by the express provisions of the regulation because it has no tailpipe. Obviously, requiring domestic electric car makers to comply with regulations that foreign ones do not undermines the competitiveness of domestic producers. Either the regulation is intended to put US companies at a disadvantage, or it is archaic. Makes one sympathize a bit with the "Who Killed The Electric Car" crowd.
On the post: Superman Lawyer Claims Warner Bros. Lawsuit Is A SLAPP
Re:
On the post: Copyright Used To Silence 10-Year-Old Girl Raising Money For Charity
Re: Re: Re: Public Domain
As long as your monopoly is productive, you would be allowed to maintain it provided you paid back (a decent proxy for) its ever-increasing cost to the public. At some point, the public's interest in gaining access to culture will outweigh the value to you of maintaining the monopoly, and the work will pass into the public domain. For "Smile," I'll bet this would have happened decades ago.
On the post: Rockstar Using 'Pirated' Copy Of Max Payne 2 On Steam To Remove DRM?
Re:
On the post: Rockstar Using 'Pirated' Copy Of Max Payne 2 On Steam To Remove DRM?
Re: Re: Hey!
On the post: Rockstar Using 'Pirated' Copy Of Max Payne 2 On Steam To Remove DRM?
Re: Re: Is that legal?
On the post: Humble Indie Bundle Keeps Getting Better, Exceeding Expectations
Re: Pathetic
No one ever bought your music or your software because doing so was legal - they bought it because they liked the music or software. You do not make money by being pro-copyright, you make money by producing better music or software. On the flipside, you do not lose money when or because people disagree with your misinformed stance on copyright.
Also, flame bait.
On the post: The Economist On Why Copyright Needs To Return To Its Roots
Re: Re: Re: Re: Re: Net Present Value
If trye, the argument then becomes about whether new editions of old works are more or less valuable than wholly new works (sight unseen). Not an argument capable of being won, I think.
On the post: The Economist On Why Copyright Needs To Return To Its Roots
Re: Re: Re: Re: Re: Re: Re: Re: Net Present Value
On the other hand, fixed durations are counterproductive (although a fixed maximum duration might make sense). If the work contributes to society but has no economic value in its first 3 years, society should not have to wait 17 more to use it. On the other hand, if it is still selling like hotcakes after 20 years, or if it took 17 years to get warmed up but then hit and has sold well for 3, it seems unfair that its life should arbitrarily end. Among other things, that disincentives certain kinds of creation (namely, creations whose time has not yet come - precisely the kind of creations that promote progress).
A better strategy is to permit renewals on a showing of economic viability. And a showing of economic viability can be made simply by requiring a fee for renewal. So short initial terms with short renewal terms for a fee.
On the post: The Economist On Why Copyright Needs To Return To Its Roots
Re: Net Present Value
The other point the article makes is about copyright's scope, and it is equally correct. Determining whether a particular work is truly "derivative" of the original is not easy. But that does not mean the definition should be over-inclusive. Courts specialize in difficult line-drawing problems, and they should not get off the hook on this one. Regardless of one's _inspiration_ for a work, it is not (and should not be considered to be) derivative of an earlier work unless it actually includes substantial copyrightable elements of the earlier work.
On the post: PS3 Owner Given Refund After Sony Makes PS3 Less Useful
Re: Australian Statutory Warranty
I am curious about your description of this law applying to "goods." Generally, goods are any tangible personal property. It is at least an open question as to whether intangible personal property (including copyrights) are "goods". They are not "services".
If they are "goods," isn't DRM a violation of this law? It permits the "content owner" to disable your access to the content. Admittedly, you agree to be bound by a DRM agreement that permits this conduct by the content owner, but isn't that in the nature of an impermissible waiver of your right to have the good function as it did at purchase?
On the post: Is Intellectual Property A Violation Of Real Property?
Re: Tangible vs. Intangible goods
When lawyers talk about "property," at least in modern jurisprudence, they are referring to a "bundle of rights." That bundle generally includes the right to exclude others from use. It may include some rights to use and assign. None of those rights existed for, say, music recordings until 1970, and arguably they still do not. Referring to a copyright in a sound recording as "intellectual property" was, thus, a clear misnomer until very recently.
On the post: Supreme Court Says Courts Still Have Jurisdiction Over Unregistered Copyrights
Re: Doesn't change much
Where this may change things for some litigants is in counterclaims. If the registration bar were jurisdictional, a litigant could not bring a counterclaim alleging infringement of an unregistered copyright. If it is not, even though one cannot bring an original action one could file the claim as a counterclaim.
In practice, this means some litigants can save $35. It is common practice to simply register the copyright before filing. For most works doing so is cheap, easy, and noncontroversial, and avoids the question altogether.
On the post: Will Your Home Insurance Provider Jack Up Your Rates If Your Tweet Appears On PleaseRobMe?
Re: Re: Re: Thoughts from a property/casualty insurance underwriter
Also, there must be a means for collecting the information. For most risks, that would be prohibitively expensive. It hardly makes sense to hire a PI to find your twitter name and analyze your postings for the last year for a few hundred $$ in premium. It makes much more sense on the backend, when you are adjusting a $30,000 claim for missing A/V equipment and jewelry.
On the post: School Spying Scandal Gets Even More Bizarre: Student In Question Was Disciplined For Eating Candy
Re: Constitutionality?????
Ours is (theoretically) a limited form of government. It isn't that the government can do anything except what appears in the Bill of Rights, it's that the government is not permitted to do anything except what we tell it to do and even that must be subject to limits. Nowhere in the Constitution does it even hint that the government is permitted to spy on little kids eating sour candies in their bedroom. Don't take my word for it: search the document for "Mike n' Ike's".
On the post: Beyonce's Bikini Infringing On Copyrights?
Re: Re: Bikini madness
But I'm not sure I understand the claim that in the US we do not permit copyright on clothing design. What's at issue in this case cannot be the shape of the bikinis, because the shapes are totally different. So it must be the fabric design - the patterns and color choices. And fabrics most definitely _are_ protected in the US. And clothing design is typically also protected by trademark, if it acquires secondary meaning (surely a design as distinctive as this one has secondary meaning, at least to clothing insiders that form the primary market). Different penalties, same C&D.
On the post: ADM Says Video Mocking Them Is Copyright Infringement; Abuses Copyright Law To Stifle Free Speech
Re: Re: parody
But I agree that the DMCA permits and even mandates a knee-jerk reaction whereas injunctive relief demands some process and at least the application of the judge's reason to the question of likelihood of success. And I agree that that is an excellent reason for a company that is unlikely to face litigation for doing so, to overreach. That does not for a moment make its conduct legal. As I'm sure you would agree, the fact that people get away with illegal conduct does not legitimize it.
On the post: ADM Says Video Mocking Them Is Copyright Infringement; Abuses Copyright Law To Stifle Free Speech
Re: Re: These guys are idiots.
Because copyright is often contentious, a metaphor may help. Let's say Congress enacted a law that said private individuals may shoot and kill anyone who speaks out against the current government, without repercussion, and that this law preempts any state law to the contrary. Such a law would clearly be facially unconstitutional because (among other things) it violates the First Amendment - the government would be creating a condition in which people could not speak. Admittedly, the government would not be applying the law in any case - it would not be doing the shooting - but it would have created a situation in which the shooting would occur.
So too here. Congress has created a condition in which speech is obviously and demonstrably stifled by giving private actors the ability to preemptively cut off speech based on its content and origin. Under the First Amendment, that is not a permissible exercise of Congress's power.
On the post: ADM Says Video Mocking Them Is Copyright Infringement; Abuses Copyright Law To Stifle Free Speech
Re: Re: Re: Double Edge Sword
This is a signficant distinction. The Founders certainly did not believe in a natural or even a common law right in the author to copyright. That notion (which sprang out of a political debate in England around 1709,) had largely been debunked even in English law. American colonial printers aggressively reprinted British works that were still under British copyright, sometimes without attribution and almost uniformly without royalties to the author. The first US copyright law, passed in 1790, covered only books and maps created, printed, distributed, and registered in the US by a US citizen: sheet music would not be covered for another century, and recordings of music performances would wait until the 1970s. Foreign works were not covered until the mid 19th century.
In other words, "not having any copyright at all" is the default state of American law for most works. Only recently has copyright been extended. So no natural or common law right exists top copyright. Moreover, it cannot be a taking for Congress to stop giving away something Congress has no obligation to give away, and nothing in Constitutional or common law requires Congress to provide a copyright.
Incidentally, the argument that the IP clause is the source of fair use is interesting. If correct, it further weakens the holdings on this issue. After all, if the IP clause itself requires fair use, then the First Amendment must require _even more_ expressive rights. Note that the First Amendment is an amendment, adopted later in time to the original Constitution. That means that its mandate is not to be read _with_ the IP clause, but is to be read as _superseding_ the IP clause (this is the same procedure the Supreme Court uses with the 14th Amendment vis-a-vis the 11th) to the degree they conflict in any measure. If the IP clause includes limits on copyright (and I agree that it clearly does,) then the First Amendment acts as a further limit, that nothing Congress is empowered to do by the IP clause may in any respect abridge anyone's freedom of speech, or of the press.
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