Fair use is something that more of less has to be asserted. It is incredibly hard to call fair use when someone is standing there giving a performance that includes singing (even for a short period of time). Maybe it is fair use, maybe it isn't.
It's obvious that you, once again, need to be reminded that there actually is a real definition of fair use. It's not some mysterious, abstract, or ambiguous term. So here it is, according to the Merriam-Webster's Dictionary of Law:
"fair use: a use of copyrighted material that does not constitute an infringement of the copyright provided the use is fair and reasonable and does not substantially impair the value of the work or the profits expected from it by its owner"
Now, I could understand that in some situations it may be a little unclear if fair use applies or not, but this is not one of those situations. This use does not, in any way, impair the value of the original or the profits expected from it's owner.
It's also very interesting how you like to revert to insults to finalize your comment. And you wonder why people here are often hostile to you?
Wow, TAM. You really just love showing off how much you really just don't get it.
They have to sell what most people don't value or don't want (stuff) in order to give the thing of true value to 10 out 10 fans (music) away for free.
Right there you show your complete ignorance. It's not about selling things that people don't want. That obviously would not work. It's about finding things that the fans do want and will pay for. It's difficult to set a price on music because because the marginal cost is $0. Due to this awesome fact of $0 marginal cost, you can use it to sell something (that people want) that has a non-zero marginal cost, and the music adds value to that.
Your talk of "freeloaders" shows how you miss the point. You may call them "freeloaders", but a more appropriate term is "fans". If you connect with fans (CwF), they will gladly give you their money.
The problem is when there is infinite supply, no matter what you put on the other side the effective price is zero. The value may be higher than zero, but the longer the price remains at zero and the supply remains huge, the more likely the demand is satisfied, which elastically pulls down the value as well.
Hey Anti-Mike. Thanks for perfectly illustrating Mike's point about how people like you do not understand the economics of infinite goods. In your mind having that infinite good drops the price to zero and then nobody makes any money. That is exactly where your misunderstanding is. You can still make lots of money from an infinite good with 0 price. The 0 price does not mean that the value is 0, or that the consumer will view it that way. The infinite good with 0 price can easily be used to make money in numerous other ways, as has been illustrated over and over again here.
You also ignore the fact that the selling price of music has been kept artificially high through the use of monopoly rents. There is no legitimate reason why MP3s should cost the same on a per-track basis as music on CD did when CDs they first came out. There have been myriad advances that have made the production, distribution, and promotion of music much cheaper, yet the recording industry insists on controlling the price that it is sold for to keep it artificially high.
You can try to continue to whine, kick and scream about how infinite goods are terrible, but that doesn't remove from the fact that they are, in fact, infinite goods. You cannot change that. It is impossible to take something that is inherently an infinite good (pretty much anything that can be digitally distributed) and try to artificially make it a scarce good. You just need to figure out how you can make money from the infinite good.
To me it seems unfair that copyright doesn't last forever. If I were to start a business on an idea I came up with, my heirs would be able to profit from that business forever (or until it went bankrupt or was sold to someone else)
That's the thing right there. The business can continue to profit indefinitely as long as it continues to produce the good or service that it is in business for. If the business stops producing goods and/or services it no longer makes money. Same goes for the Artist, as long as he keeps producing, he can continue to make money on it. But if he stops producing then the money stops as well. Now, I do think that some sort of protection against copying is necessary, but I think that the original copyright terms from the turn of the century (28 years max) made a lot more sense than the current terms (life of the artist+70 years).
Anti-Mike, your argument makes no sense whatsoever. You claim that google come into the market and "lose their asses for an extended period of time". Do you even pay the slightest bit of attention? The Google phones that are currently out are not below the standard price point for what they are, and the pricing plans for the Nexus are also within the current standard prices. They are not undercutting the competition on price, and I seriously doubt that they are losing money on the phone sales, as you imply.
If any phone companies go out of business due to Google's entry into the market it will be because of their own inability to create a product that consumers want. Good riddance.
Except that part of "price-busting" would be selling the books at a price that is below cost. Nowhere have you shown that Amazon is selling below cost. They may be selling it a a price that is below the normal retail price, but I am quite confident that amazon is making a profit on the book sale.
It appears that there are quite a few definitions for what it means for Software to be "buggy":
1) Software malfunctions or is unusable because of the user's specific computer configuration, though the computer meets all of the necessary requirements.
2) Software malfunctions or is unusable for it's intended use due to programming errors.
3) Software is unusable for some use other than it's intended use.
4) Software malfunctions or is unusable due to the user's computer not meeting the necessary requirements, or due to problems with the user's computer.
5) Software is unusable of malfunctions due to user error (PEBKAC).
First off, I think that the user should have the option of returning the software, for full refund, for any reason. While that may leave the possibility of returns abuse, most retail businesses are already familiar with the concept of returns abuse and have ways of combating it.
Problems 3 4 and 5 are obviously not the responsibility of the publisher. For 3 they, or course, cannot test for every possible use of the software, only the intended use. For 4 and 5 the problem is user oriented. Though for all of these cases a return (for full refund) should still be allowed, as is allowed with most consumer goods within a reasonable time-period from purchase.
Problem 1 is also pretty straightforward. The publisher is responsible for remedying the situation if the problem was due to their own mistakes/lack of testing. However I cannot see liability beyond the purchase price of the software except in some extreme situations.
Problem 2 is a little tougher. It isn't possible for the publisher to actually test the software on every single computer configuration, because there are so many possible configurations. But a user should have a reasonable expectation that the software will work if they meet the software's stated requirements. Once again though I do not see any liability on the publisher's part beyond the purchase price.
So it seems that the solution to all of these problems is obvious: Allow return for full refund on software. For any reason.
You are confusing the used goods market with the new goods market. New cars are not sold "as is", they are sold with specific warranties against manufacturers defects. Only used cars are sold "as is", so that analogy is not applicable in this situation.
Actually, every game store manager I have ever talked to said that the non-returns policy is a required agreement between the game publishers and the store. Apparently, if they don't agree to a non-return policy the Publishers would de-prioritize their store, making it so they could not get adequate copies of the hottest games at release. You can see this policy in action by the fact that CostCo (which DOES allow returns on games) only carries games that have been out for quite some time or are B-list titles. Only occasionally will you find a newer or highly rated game at a CostCo because the game publishers wont sell it to them.
I've got to agree with Elvenrunelord. The real problem(IMHO) is that software, including games, is not returnable or refundable. This is completely different from any other consumer item. If I buy a couch, a TV, a Table, or any other tangible good and decide that the product does not live up to my expectations I am allowed to return it, but with software it is completely different for some reason.
Although I must disagree with Mike on the point where he says:"If a company constantly produces extremely buggy software, it should have incentives to fix those bugs directly -- not from the government -- such as the fact that people will be less interested in ever buying their products again in the future."
EA (the game company) has a history of releasing incomplete products, loaded with bugs, problems with online functionality, tech support that basically refuses to solve problems, yet they have been around for years, and show no signs of leaving. Part of this is because when people buy their games and find them unplayable they have no recourse because they are not allowed to return the game. So EA gets to pocket all that money from unsatisfied customers.
I do think some sort of regulation requiring that software be returnable for refund would actually be appropriate.
Google will once again leverage it's incredible financial clout to come into a market and sell at a loss (or often free) a product which then puts others out of the marketplace.
Oh yeah, the Google wireless network will BETA for 7 years.
Actually Google doesn't sell things at a loss. They are good at figuring out ways to do things without charging the end user, while using that free product to make money. It's not selling at a loss if you are making profit hand over fist. The only reason it puts others out of business is because those others are unable to adapt to a changing marketplace.
Oh yeah, and Google's Beta version will have more features and be less buggy than other companies final product.
Re: Re: Re: You still havent learned to use the subject field?
Well, I have no way to tell one Anonymous Coward from another, and when two different cowards say similar things in similar ways, I have no choice but to paint them both with the same brush.
Youtube has a very simple procedure where a copyright holder can request a video be taken down, and YouTube is very quick about taking down clips after receiving a request. Since the copyright holder in question did nothing to remove the video, it must be assumed that they approved of it being there.
And in response to the AC comment: "No matter how much good youtube did for Susan Boyle, it also did good for YouTube and Google (ad sales, exposure, etc). If You Tube wants to use a copyrighted clip, they need to pay. It's a pretty simple thing.
You once again fail. There is nothing that says copyrighted clips must be paid for. All that is needed is credit and permission. The law says nothing about a "need to pay".
P.S. I find it quite amusing that in one comment you used YoutTube three times and managed to spell it three different ways.
To those slamming the attitude of entitlement on the part of the Philip K. Dick (PKD) Estate.... I don't like the law, but under the law as it is likely to be interpreted, they have a case. In as far as public opinion goes (the PKD Estate is the little guy and Google is big and rich), the PKD Estate has the advantage
No, they actually don't have a case at all unless they have actually registered "Nexus" as a trademark of the PKD Estate (as Lucas did with the term "Droid). Without that registration there is absolutely no case here. My prediction is that either Google will go ahead and use the name without paying and any lawsuit will not make it far, or they will change the name.
Re: You still havent learned to use the subject field?
My comments are directed to matters such as statements that are inaccurate as a statement of the law, as well as those where persons are continually trying to equate what I view as "correlation" with "causation", and especially when the data relied upon is in many instances clearly irrelevant to the issue at hand.
Ha! I laughed out loud when I read this. You are probably the biggest offender when it comes to confusing correlation with causation. I have never seen you make a statement that wasn't in support of increased copyright protections, and you have quoted obviously biased research (from industry-backed sources) on numerous occasions while simultaneously ridiculing research form non-industry-backed sources.
Also, you may disagree with the label "IP Lawyer", but you are a lawyer, and you seem to have a very high interest in IP issues, so I would say "IP Lawyer" is an accurate description.
you just shouldn't have a video camera in a movie theater, simple as that. There is not fair use here. Please learn what the term really means.
Really? Well, can I have my phone in the theatre? Most phones now have video cameras built in. How about my iPod? The new iPods have video cameras too.
Legal Dictionary Definition of Fair Use: "A use of copyrighted material that does not constitute an infringement of the copyright provided the use is fair and reasonable and does not substantially impair the value of the work or the profits expected from it by its owner"
Lets see, incidentally capturing a few minutes of a movie in the background. Sure sounds to me like a fair and reasonable use of the material, and would not substantially impair the value of the work or profits expected from it. It sounds like YOU are the one who needs to learn what the term really means.
$2.7 million? Over two years? Okay, lets do the math. Taking a very conservative estimate(actually, a complete guess) that one tenth of one percent of the 300,000 ASCAP musicians are part of this ASCAPlus award program means that 300 musicians are sharing that award, resulting in around $9,000 each. For two years. Time to break out the champagne and caviar!!
Sorry, Mister Random Lurker, but your argument has now devolved to the point of complete idiocy. Do you really think that there is a widespread problem of business filling their Jukeboxes with pirated music? There isn't.
And once again some guy who also DOESN'T GET IT make the completely incorrect statement that we are all saying that music should be free. WE ARE NOT SAYING THAT!!!!
The problem is in the continuing ongoing payment over and over again just to play the music that has already been purchased. If the business owner ALREADY PAID for the CDs, why should he have to pay again to play them?
You still have not answered that one basic question.
On the post: Comedian Has To Retell Joke 2nd Time, Because Viacom Couldn't Have Him Sing Four Words: 'We Are The World'
Re: Re: Re: Re: Re: Re: only 1 song in the world?
It's obvious that you, once again, need to be reminded that there actually is a real definition of fair use. It's not some mysterious, abstract, or ambiguous term. So here it is, according to the Merriam-Webster's Dictionary of Law:
"fair use: a use of copyrighted material that does not constitute an infringement of the copyright provided the use is fair and reasonable and does not substantially impair the value of the work or the profits expected from it by its owner"
Now, I could understand that in some situations it may be a little unclear if fair use applies or not, but this is not one of those situations. This use does not, in any way, impair the value of the original or the profits expected from it's owner.
It's also very interesting how you like to revert to insults to finalize your comment. And you wonder why people here are often hostile to you?
On the post: Some More Data On How CwF + RtB Is Working In The Music Space
Re: Re: Re:
They have to sell what most people don't value or don't want (stuff) in order to give the thing of true value to 10 out 10 fans (music) away for free.
Right there you show your complete ignorance. It's not about selling things that people don't want. That obviously would not work. It's about finding things that the fans do want and will pay for. It's difficult to set a price on music because because the marginal cost is $0. Due to this awesome fact of $0 marginal cost, you can use it to sell something (that people want) that has a non-zero marginal cost, and the music adds value to that.
Your talk of "freeloaders" shows how you miss the point. You may call them "freeloaders", but a more appropriate term is "fans". If you connect with fans (CwF), they will gladly give you their money.
On the post: Of Course Most Content Shared On BitTorrent Infringes; But That's Meaningless
Re: Re: Re: Re: Re: Re: Re:
Hey Anti-Mike. Thanks for perfectly illustrating Mike's point about how people like you do not understand the economics of infinite goods. In your mind having that infinite good drops the price to zero and then nobody makes any money. That is exactly where your misunderstanding is. You can still make lots of money from an infinite good with 0 price. The 0 price does not mean that the value is 0, or that the consumer will view it that way. The infinite good with 0 price can easily be used to make money in numerous other ways, as has been illustrated over and over again here.
You also ignore the fact that the selling price of music has been kept artificially high through the use of monopoly rents. There is no legitimate reason why MP3s should cost the same on a per-track basis as music on CD did when CDs they first came out. There have been myriad advances that have made the production, distribution, and promotion of music much cheaper, yet the recording industry insists on controlling the price that it is sold for to keep it artificially high.
You can try to continue to whine, kick and scream about how infinite goods are terrible, but that doesn't remove from the fact that they are, in fact, infinite goods. You cannot change that. It is impossible to take something that is inherently an infinite good (pretty much anything that can be digitally distributed) and try to artificially make it a scarce good. You just need to figure out how you can make money from the infinite good.
On the post: Copyright Is An Exception To The Public Domain
Re:
That's the thing right there. The business can continue to profit indefinitely as long as it continues to produce the good or service that it is in business for. If the business stops producing goods and/or services it no longer makes money. Same goes for the Artist, as long as he keeps producing, he can continue to make money on it. But if he stops producing then the money stops as well. Now, I do think that some sort of protection against copying is necessary, but I think that the original copyright terms from the turn of the century (28 years max) made a lot more sense than the current terms (life of the artist+70 years).
On the post: Google Isn't Targeting iPhone Users; It's Targeting Everyone Else (Maybe)
Re: Re: Re: Re:
If any phone companies go out of business due to Google's entry into the market it will be because of their own inability to create a product that consumers want. Good riddance.
On the post: Amazon Sued In Germany For Offering Good Prices On Books
Re: Re: Re: Anti-Mike misses it again
On the post: Why Is The NY Times Running A Ridiculous, Conflicted Op-Ed Against Google?
Re: Google Objectiveness
Don't forget about Peter (the above commenter). Definitely a confirmed jack-ass as well.
On the post: Debate Heats Up On Liability For Buggy Software: Will Buggy Games Be Illegal?
Complex problem
1) Software malfunctions or is unusable because of the user's specific computer configuration, though the computer meets all of the necessary requirements.
2) Software malfunctions or is unusable for it's intended use due to programming errors.
3) Software is unusable for some use other than it's intended use.
4) Software malfunctions or is unusable due to the user's computer not meeting the necessary requirements, or due to problems with the user's computer.
5) Software is unusable of malfunctions due to user error (PEBKAC).
First off, I think that the user should have the option of returning the software, for full refund, for any reason. While that may leave the possibility of returns abuse, most retail businesses are already familiar with the concept of returns abuse and have ways of combating it.
Problems 3 4 and 5 are obviously not the responsibility of the publisher. For 3 they, or course, cannot test for every possible use of the software, only the intended use. For 4 and 5 the problem is user oriented. Though for all of these cases a return (for full refund) should still be allowed, as is allowed with most consumer goods within a reasonable time-period from purchase.
Problem 1 is also pretty straightforward. The publisher is responsible for remedying the situation if the problem was due to their own mistakes/lack of testing. However I cannot see liability beyond the purchase price of the software except in some extreme situations.
Problem 2 is a little tougher. It isn't possible for the publisher to actually test the software on every single computer configuration, because there are so many possible configurations. But a user should have a reasonable expectation that the software will work if they meet the software's stated requirements. Once again though I do not see any liability on the publisher's part beyond the purchase price.
So it seems that the solution to all of these problems is obvious: Allow return for full refund on software. For any reason.
On the post: Debate Heats Up On Liability For Buggy Software: Will Buggy Games Be Illegal?
Re: Re:
You are confusing the used goods market with the new goods market. New cars are not sold "as is", they are sold with specific warranties against manufacturers defects. Only used cars are sold "as is", so that analogy is not applicable in this situation.
On the post: Debate Heats Up On Liability For Buggy Software: Will Buggy Games Be Illegal?
Re: Re:
On the post: Debate Heats Up On Liability For Buggy Software: Will Buggy Games Be Illegal?
Returns
Although I must disagree with Mike on the point where he says:"If a company constantly produces extremely buggy software, it should have incentives to fix those bugs directly -- not from the government -- such as the fact that people will be less interested in ever buying their products again in the future."
EA (the game company) has a history of releasing incomplete products, loaded with bugs, problems with online functionality, tech support that basically refuses to solve problems, yet they have been around for years, and show no signs of leaving. Part of this is because when people buy their games and find them unplayable they have no recourse because they are not allowed to return the game. So EA gets to pocket all that money from unsatisfied customers.
I do think some sort of regulation requiring that software be returnable for refund would actually be appropriate.
On the post: As AT&T Complains, People Notice That It Has Decreased Infrastructure Investments, But Wireless Revenue Is Way Up
Re: Re: Profits flat
Oh yeah, the Google wireless network will BETA for 7 years.
Actually Google doesn't sell things at a loss. They are good at figuring out ways to do things without charging the end user, while using that free product to make money. It's not selling at a loss if you are making profit hand over fist. The only reason it puts others out of business is because those others are unable to adapt to a changing marketplace.
Oh yeah, and Google's Beta version will have more features and be less buggy than other companies final product.
On the post: White House Actually Goes Against Hollywood, Supports Copyright Exemptions For Visually Impaired
Re: Re: Re: You still havent learned to use the subject field?
On the post: Simon Cowell's Confusion: YouTube Should Pay; YouTube Helped Sell Millions Of Albums
Youtube has a procedure...
And in response to the AC comment: "No matter how much good youtube did for Susan Boyle, it also did good for YouTube and Google (ad sales, exposure, etc). If You Tube wants to use a copyrighted clip, they need to pay. It's a pretty simple thing.
You once again fail. There is nothing that says copyrighted clips must be paid for. All that is needed is credit and permission. The law says nothing about a "need to pay".
P.S. I find it quite amusing that in one comment you used YoutTube three times and managed to spell it three different ways.
On the post: Does Google Need Permission From Philip K. Dick's Estate For The Nexus One?
Re: To be fair....
No, they actually don't have a case at all unless they have actually registered "Nexus" as a trademark of the PKD Estate (as Lucas did with the term "Droid). Without that registration there is absolutely no case here. My prediction is that either Google will go ahead and use the name without paying and any lawsuit will not make it far, or they will change the name.
On the post: White House Actually Goes Against Hollywood, Supports Copyright Exemptions For Visually Impaired
Re: You still havent learned to use the subject field?
Ha! I laughed out loud when I read this. You are probably the biggest offender when it comes to confusing correlation with causation. I have never seen you make a statement that wasn't in support of increased copyright protections, and you have quoted obviously biased research (from industry-backed sources) on numerous occasions while simultaneously ridiculing research form non-industry-backed sources.
Also, you may disagree with the label "IP Lawyer", but you are a lawyer, and you seem to have a very high interest in IP issues, so I would say "IP Lawyer" is an accurate description.
On the post: Director Of New Moon Says Jailing Of Girl For Snippets Of Video Of His Movie Is 'Terribly Unfair'
Re: Re:
Really? Well, can I have my phone in the theatre? Most phones now have video cameras built in. How about my iPod? The new iPods have video cameras too.
Legal Dictionary Definition of Fair Use: "A use of copyrighted material that does not constitute an infringement of the copyright provided the use is fair and reasonable and does not substantially impair the value of the work or the profits expected from it by its owner"
Lets see, incidentally capturing a few minutes of a movie in the background. Sure sounds to me like a fair and reasonable use of the material, and would not substantially impair the value of the work or profits expected from it. It sounds like YOU are the one who needs to learn what the term really means.
On the post: ASCAP, BMI And SESAC Continue To Screw Over Most Songwriters: 'Write A Hit Song If You Want Money'
Re: Setting the record straight ... again.
$2.7 million? Over two years? Okay, lets do the math. Taking a very conservative estimate(actually, a complete guess) that one tenth of one percent of the 300,000 ASCAP musicians are part of this ASCAPlus award program means that 300 musicians are sharing that award, resulting in around $9,000 each. For two years. Time to break out the champagne and caviar!!
On the post: ASCAP, BMI And SESAC Continue To Screw Over Most Songwriters: 'Write A Hit Song If You Want Money'
Re: Re: Re: Re: Re: Re: Re: You guys scare me.
On the post: ASCAP, BMI And SESAC Continue To Screw Over Most Songwriters: 'Write A Hit Song If You Want Money'
Re: Re: You guys scare me.
The problem is in the continuing ongoing payment over and over again just to play the music that has already been purchased. If the business owner ALREADY PAID for the CDs, why should he have to pay again to play them?
You still have not answered that one basic question.
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