If apple and google get a cut of the price for paid apps and exercise control of the market, I don't find the third party argument convincing. If they profit from each sale, their function is analagous to a consignment retailer and, accordingly, they share an obligation to comply with the consumer protection laws.
My point is that the ability to use other artists work is integral to the development of new artists. Increasing the amount of work in the public domain makes it easier for artists to use this work and augments the development of new artists.
The tradition of covering existing songs predates copyright by thousands of years. Melodies were reused with new lyrics, old songs would have new arrangements. This borrowing is particularly important in the blues, from which the rock and pop practiced by the Beatles evolved. Since the blues, like other vernacular musical genreas, was developed pre-1976, the vast majority of its foundations were already in the public domain. Without a culture of permission-free borrowing blues and the pop and rock which came from it would not exists.
Actually, the Beatles really started to become great playing in the Hamburg clubs. The non-stop performing lead to a great deal of improvement in their musical skills and ability to gel as a band.
What were they playing? Cover songs. So if they had been forced to write their own songs from the beginning, there would be no Beatles.
Also the "true talents of Lennon and McCartney" is just begging for an Ebony and Ivory joke.
Just to clarify, I'm not arguing about what the law should be, just what I think the law is.
As for damages, whether someone is liable is a different issue than how much the damages are and both have to be proven separately. If they prove liability but can't prove damages, then they usually get nominal damages (usually $1.00). The twist is that in copyright infringement a plaintiff can usually opt for statutory damages, which provide a mandatory minimum amount of damages for each unauthorized copy, without having to prove anything other than liability.
Unfortunately, they may not have to prove actual damages - statutory damages for a properly registered copyright are pretty horrendous. Ostensibly statutory damages are meant for the types of claims where proving actual damages can be difficult. The problem is that with copyright they almost always exceed any plausible damage calculation by an enormous amount.
As a sidenote, I bet that without statutory damages, copyright litigation would wither on the vine. There just isn't enough money in actual damages to justify a lawsuit against an individual person downloading music or films.
Civil claims aren't moral judgments in the same way as a criminal accusation, so civil liability and criminal liability are derived from different sources. Criminal law punishes wrongdoing, while civil law compensates people for harms they have suffered (punitive damages are an exception to this, but far less prevalent than TV would have us believe).
Basically the rationale for civil liability is one of cost-shifting; the loss, in the form of damages, should be born by the party which caused the harm, regardless of moral culpability. This is especially true in strict-liability torts. So in civil law your liability is always to the damaged party, not to the party you intended to damage.
It very well might be legal. I'm pretty sure its not criminal.
The difference between legal and equitable relief is particularly important in cases like this. Law is traditionally concerned with rules while equity is traditionally concerned with the character of the parties' behavior. A honeypot would almost certainly be viewed by a court as inequitable conduct, even if legal. Inequitable conduct would could grant the defendant the use of equitable defenses, like estoppel and unclean hands.
Plus, thanks to google scholar, I now know that the absence of intent allows the court to reduce statutory damages to $200.
It seems like it would come down to whether 1) intent is a necessary element in an infringement claim and if so, whether 2) the doctrine of transferred intent applies. If intent is not necessary, then inadvertent copying is infringement. If intent is necessary, but an intent to infringe one work may be "transferred" to the infringement of a different work, then it would appear to be a valid claim.
Off the top of my head I don't think intent is required. Wasn't George Harrison liable for unconsciously copying "He's So Fine"?
But if it is a honeypot, that is a pretty clear case of "unclean hands," which would probably provide some equitable defenses.
I'm not sure that the use in the film parodies the tattoo itself. As this post discusses, for a parodic use to be a fair use it has to parody the copyrighted material itself - in essence a parody of a work is a form of transformative criticism.
One argument against fair use parody is that the humor comes from the absurdity of Ed Helms with a tough guy tattoo, so the movie is using the tattoo in the same way Mike Tyson uses it; as a signifier of toughness.
However, I can see it going the other way as well; it mocks the tattoo for being a shallow signifier of badass-itude.
Of course if it were to negatively impact the market, it could do so my making the tattoo undesirable. Presumably by successfully mocking the tattoo as a laughable substitute for masculinity. In which case it would necessarily have to be a sucessful parody.
FYI - Not sure if you are American, but court docs are generally public information. Most federal paper is submitted electronically, so you can usually get it online with a little wheedling.
Only skimmed it, but it seems like the causes of action are for assisting China in a course of action that included, among other violations of international law, torture and extrajudicial killing. So it seems pretty squarely in what the ATCA is for. (though I am no expert, just a general practitioner, so grain of salt etc.).
I think its interesting that we have kind of a "boys will be boys" about this type of situation. There is a clear conflict of interest, so I think its almost unambiguously unethical, even without a quid pro quo.
In my experience, the standard in ethical professional behavior is to avoid the appearance of impropriety. One of the benefits of this standard is that we do not need to see an explicit quid pro quo to call foul. If chicanery is a reasonable inference, then the action falls below minimal ethical standards, even without actual bribery.
So basically we've become so inured to it, that we don't really view it as the corruption it is. My impression is taht even those of us who despise it view it in the same way we would view a shady used car salesman - distasteful, but still within the bounds of acceptable.
I think that you have the gist of what I was saying. Thanks for restating it in an illuminate way. I Although I will quibble a bit - I think that even on an infinite timeline, fighting everytime will not create a perfect disincentive. There will always be trolls who have a high enough chance of success to make it worth it to roll the dice. Or alternatively a troll may only care about creating trouble for a competitor ..cough.. Apple.. cough.. and be willing to throw enough money into it to guarantee a pyrrhic victory for a weaker opponent.
Indeed. In fact, if I read it correctly, then it would seriously impede even even copyright maximalist licensing. If an artist is entitled to inalienable, equitable compensation, then license terms would be infinitely renogotiable as everytime the potential income from the license changes, the copyright holder's equitable share would also change.
Re: Re: Re: Re: RedHat's strategy can be reasonable
Are you intentionally misreading my comments to yank my chain?
Pronoun free version:
Trolls with weak claims don't have a chance of winning their lawsuits. RedHat should fight when RedHat will definitely win. That way trolls with weak claims who only sue because they think they can get a quick settlement will not sue because they know they won't get that quick settlement.
Trolls with stronger cases will not be intimidated by RedHat fighting back. When a troll lawsuit is strong enough, RedHat may not win and the cost of litigation may be high. In that case Redhat should invest RedHat's money in software development instead of lawyers because investing in lawyers will not deter trolls with strong cases from suing RedHat.
Whether RedHat chooses to settle or fight with patent trolls has absolutely no effect on whether software can be patented.
Arguing the total invalidity of all software patents in a trial for patent infringement will lose every time. Arguing a given patent is invalid may win, but will do absolutely nothing to invalidate software patents in general. They are so well established under current precedent that only Congressional legislation or a decision by SCOTUS can eliminate them. A trial court wouldn't even think about it.
An assumption is not a conclusion. "Assuming the threshold is set correctly" does not mean concluding the threshold is set correctly. I made no conclusions about what the threshold should be or whether RedHat had set it correctly. Rather, I made an assumption about something for the sake of argument because I had insufficient data on that point. Similarly, you assumed that "they" referred to trolls so that you could make your argument.
RedHat's decision not to fight where trolls have a decent chance of success does not provide a disincentive to troll. It preserves resources to develop the products which are the company's primary purpose.
The argument is that a strategy which involves fighting where there is a high chance of success (and therefore a high ROI in the form of trolling disincentives) and capitulating where the opportunity costs of fighting outweigh the potential benefit (meaning the lower chance of success is less valuable than product development) is a reasonable strategy. Otherwise you risk developing excellent disincentives to troll, but at the cost of losing the ability to create new tech.
Additionally, trolls with good cases are less susceptible to intimidation through fighting back, as they have a chance of a payday through a verdict. So the troll-fighter will have decreasing gains in trolling disincentives as troll-cases get stronger.
Therefore, if you create a disincentive to troll with BS cases while settling good cases, you maximise the bang for your buck in creating a disincentive to troll while minimizing the drag on resources you get from paying lawyers.
I think it depends. BS lawsuits are filed hoping for a payoff settlement. If you are consistently fighting lawsuits under a certain threshold of BS, then you are creating a disincentive to file similar lawsuits. For lawsuits above that threshold, where they have a chance at actually winning, the disincentive created by fighting is weaker. So assuming the fight/settle threshold is set correctly, I don't think you inevitably make more trouble for yourself in the long run.
Perhaps with unlimited legal resources, one could create the strongest disincentive to trolling. With limited resources however, a choice has to be made - is the ROI on the disincentive to troll greater than the ROI on development. Put another way, RedHat could get a reputation as a company that you should never sue because they will always fight, but without better products that reputation will do them little good.
I think it depends. BS lawsuits are filed hoping for a payoff settlement. If you are consistently fighting lawsuits under a certain threshold of BS, then you are creating a disincentive to file similar lawsuits. For lawsuits above that threshold, where they have a chance at actually winning, the disincentive created by fighting is weaker. So assuming the fight/settle threshold is set correctly, I don't think you inevitably make more trouble for yourself in the long run.
Perhaps with unlimited legal resources, one could create the strongest disincentive to trolling. With limited resources however, a choice has to be made - is the ROI on the disincentive to troll greater than the ROI on development. Put another way, RedHat could get a reputation as a company that you should never sue because they will always fight, but without better products that reputation will do them little good.
I think its kind of funny that the argument is that an affirmative defense increases litigation. As an affirmative defense it will only be used AFTER the commencement of litigation.
Self-defense should be abolished because it "gives rise to" far too many murder prosecutions!
I wonder if they are also adulterating our "precious bodily fluids"
Speaking of General Ripper, how is the military buying counterfeit goods? Are they in NYC, picking up missiles laid out on the sidewalk next to the $5 coach bags?
On the post: Taipei Orders Google & Apple To Offer 7-Day Free Trials Of All Apps Offered Via App Markets
Third party argument not persuasive
On the post: Would It Really Be So Bad If The Beatles Were In The Public Domain?
Re: Re: Re:
The tradition of covering existing songs predates copyright by thousands of years. Melodies were reused with new lyrics, old songs would have new arrangements. This borrowing is particularly important in the blues, from which the rock and pop practiced by the Beatles evolved. Since the blues, like other vernacular musical genreas, was developed pre-1976, the vast majority of its foundations were already in the public domain. Without a culture of permission-free borrowing blues and the pop and rock which came from it would not exists.
On the post: Would It Really Be So Bad If The Beatles Were In The Public Domain?
Re:
What were they playing? Cover songs. So if they had been forced to write their own songs from the beginning, there would be no Beatles.
Also the "true talents of Lennon and McCartney" is just begging for an Ebony and Ivory joke.
On the post: Litigious Porn Producers Claim People Infringe Even If They Accidentally Downloaded Its Porn Disguised As Popular Works
Re: Re: Re: Re:
As for damages, whether someone is liable is a different issue than how much the damages are and both have to be proven separately. If they prove liability but can't prove damages, then they usually get nominal damages (usually $1.00). The twist is that in copyright infringement a plaintiff can usually opt for statutory damages, which provide a mandatory minimum amount of damages for each unauthorized copy, without having to prove anything other than liability.
On the post: Litigious Porn Producers Claim People Infringe Even If They Accidentally Downloaded Its Porn Disguised As Popular Works
Re: Re: Re: Re:
As a sidenote, I bet that without statutory damages, copyright litigation would wither on the vine. There just isn't enough money in actual damages to justify a lawsuit against an individual person downloading music or films.
On the post: Litigious Porn Producers Claim People Infringe Even If They Accidentally Downloaded Its Porn Disguised As Popular Works
Re: Re:
Basically the rationale for civil liability is one of cost-shifting; the loss, in the form of damages, should be born by the party which caused the harm, regardless of moral culpability. This is especially true in strict-liability torts. So in civil law your liability is always to the damaged party, not to the party you intended to damage.
On the post: Litigious Porn Producers Claim People Infringe Even If They Accidentally Downloaded Its Porn Disguised As Popular Works
Re: Re: Intent required?
The difference between legal and equitable relief is particularly important in cases like this. Law is traditionally concerned with rules while equity is traditionally concerned with the character of the parties' behavior. A honeypot would almost certainly be viewed by a court as inequitable conduct, even if legal. Inequitable conduct would could grant the defendant the use of equitable defenses, like estoppel and unclean hands.
Plus, thanks to google scholar, I now know that the absence of intent allows the court to reduce statutory damages to $200.
On the post: Litigious Porn Producers Claim People Infringe Even If They Accidentally Downloaded Its Porn Disguised As Popular Works
Intent required?
Off the top of my head I don't think intent is required. Wasn't George Harrison liable for unconsciously copying "He's So Fine"?
But if it is a honeypot, that is a pretty clear case of "unclean hands," which would probably provide some equitable defenses.
On the post: Is The Mike Tyson Tattoo On Ed Helms A Parody?
parody
One argument against fair use parody is that the humor comes from the absurdity of Ed Helms with a tough guy tattoo, so the movie is using the tattoo in the same way Mike Tyson uses it; as a signifier of toughness.
However, I can see it going the other way as well; it mocks the tattoo for being a shallow signifier of badass-itude.
Of course if it were to negatively impact the market, it could do so my making the tattoo undesirable. Presumably by successfully mocking the tattoo as a laughable substitute for masculinity. In which case it would necessarily have to be a sucessful parody.
On the post: Cisco Sued For Helping China Repress Falun Gong
Re: Alien Tort Statute
http://www.scribd.com/doc/55996428/Doe-v-Cisco-Complaint-5-11
FYI - Not sure if you are American, but court docs are generally public information. Most federal paper is submitted electronically, so you can usually get it online with a little wheedling.
Only skimmed it, but it seems like the causes of action are for assisting China in a course of action that included, among other violations of international law, torture and extrajudicial killing. So it seems pretty squarely in what the ATCA is for. (though I am no expert, just a general practitioner, so grain of salt etc.).
On the post: Self-Perpetuating Copyright Enforcement
If copyright benefits starving artists...
On the post: What Corruption Looks Like: FCC Commissioner Takes Job At Comcast Months After She Voted To Approve Its Deal With NBC Universal
Definitely unethical
In my experience, the standard in ethical professional behavior is to avoid the appearance of impropriety. One of the benefits of this standard is that we do not need to see an explicit quid pro quo to call foul. If chicanery is a reasonable inference, then the action falls below minimal ethical standards, even without actual bribery.
So basically we've become so inured to it, that we don't really view it as the corruption it is. My impression is taht even those of us who despise it view it in the same way we would view a shady used car salesman - distasteful, but still within the bounds of acceptable.
On the post: Why Red Hat Is Wrong That It's Better To Just Pay Patent Trolls Sometimes
Re: Re: RedHat's strategy can be reasonable
On the post: Portuguese Politicians Want To Make Creative Commons Illegal
Re: IFPI/RIAA Contract Impact
On the post: Why Red Hat Is Wrong That It's Better To Just Pay Patent Trolls Sometimes
Re: Re: Re: Re: RedHat's strategy can be reasonable
Pronoun free version:
Trolls with weak claims don't have a chance of winning their lawsuits. RedHat should fight when RedHat will definitely win. That way trolls with weak claims who only sue because they think they can get a quick settlement will not sue because they know they won't get that quick settlement.
Trolls with stronger cases will not be intimidated by RedHat fighting back. When a troll lawsuit is strong enough, RedHat may not win and the cost of litigation may be high. In that case Redhat should invest RedHat's money in software development instead of lawyers because investing in lawyers will not deter trolls with strong cases from suing RedHat.
Whether RedHat chooses to settle or fight with patent trolls has absolutely no effect on whether software can be patented.
Arguing the total invalidity of all software patents in a trial for patent infringement will lose every time. Arguing a given patent is invalid may win, but will do absolutely nothing to invalidate software patents in general. They are so well established under current precedent that only Congressional legislation or a decision by SCOTUS can eliminate them. A trial court wouldn't even think about it.
On the post: Why Red Hat Is Wrong That It's Better To Just Pay Patent Trolls Sometimes
Re: Re: RedHat's strategy can be reasonable
RedHat's decision not to fight where trolls have a decent chance of success does not provide a disincentive to troll. It preserves resources to develop the products which are the company's primary purpose.
The argument is that a strategy which involves fighting where there is a high chance of success (and therefore a high ROI in the form of trolling disincentives) and capitulating where the opportunity costs of fighting outweigh the potential benefit (meaning the lower chance of success is less valuable than product development) is a reasonable strategy. Otherwise you risk developing excellent disincentives to troll, but at the cost of losing the ability to create new tech.
Additionally, trolls with good cases are less susceptible to intimidation through fighting back, as they have a chance of a payday through a verdict. So the troll-fighter will have decreasing gains in trolling disincentives as troll-cases get stronger.
Therefore, if you create a disincentive to troll with BS cases while settling good cases, you maximise the bang for your buck in creating a disincentive to troll while minimizing the drag on resources you get from paying lawyers.
On the post: Why Red Hat Is Wrong That It's Better To Just Pay Patent Trolls Sometimes
RedHat's strategy can be reasonable
Perhaps with unlimited legal resources, one could create the strongest disincentive to trolling. With limited resources however, a choice has to be made - is the ROI on the disincentive to troll greater than the ROI on development. Put another way, RedHat could get a reputation as a company that you should never sue because they will always fight, but without better products that reputation will do them little good.
On the post: Why Red Hat Is Wrong That It's Better To Just Pay Patent Trolls Sometimes
RedHat's strategy can be reasonable
Perhaps with unlimited legal resources, one could create the strongest disincentive to trolling. With limited resources however, a choice has to be made - is the ROI on the disincentive to troll greater than the ROI on development. Put another way, RedHat could get a reputation as a company that you should never sue because they will always fight, but without better products that reputation will do them little good.
On the post: New Content Industry Talking Point: Fair Use Is Bad Because It Leads To Litigation
You keep saying that word (causation)...
Self-defense should be abolished because it "gives rise to" far too many murder prosecutions!
On the post: Joe Biden: There's No Reason To Treat Intellectual Property Any Different Than Tangible Property
Ripper!
I wonder if they are also adulterating our "precious bodily fluids"
Speaking of General Ripper, how is the military buying counterfeit goods? Are they in NYC, picking up missiles laid out on the sidewalk next to the $5 coach bags?
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