Speak of the devil. Mike's pirate buddy Gary Fung just got his ass handed to him by the Ninth Circuit
We weren't speaking of him (he didn't infringe on the public performance right); he's not Mike's buddy; and saying he "got his ass handed to him" is not entirely accurate. The 9th Circuit did roll back some of the worst parts of the District Court's ruling (the overly broad injunction, and their ridiculous reasoning for rejecting DMCA safe harbors).
If they are making the file available for streaming, and not downloading, then they are infringing the public performance right and not the distribution right.
And also the copying right - which is already a possible felony. I see your point about streaming/performance vs. downloads/distribution, but the point is still moot.
If they are assisting the violation of the distribution right, then they can be a felon. If they are assisting the violation of the public performance right, then they cannot. That's the disparity the Register is addressing.
There's a good reason that disparity exists. The only reason to make public performance (or display) a felony, is to jail people who did not make copies of the works, nor distribute them to anyone else. This would directly threaten to put people like theater or nightclub owners in jail for felony charges. Not to mention the artists who perform these works.
You've chided the (somewhat sarcastic) "Free Justin Bieber" campaign for spreading "FUD." But if it's not applied to people like him, then who does it affect? The sites that intentionally host the content (and the people who aid and abet them, if that standard applies) are already facing felony charges. On the other hand, pirate "link sites" and search engines won't be affected at all - since they are not themselves infringing on the public performance right.
I don't see the point in pulling out the case law again when you just deny its import, but I'll point out that the Ninth Circuit in Perfect 10 v. Amazon said that Google could be contributorily liable for linking.
I've never "denied its import." I have, however, denied that your interpretation of the case law has import. Which is what I am going to do now.
Let's examine that Perfect 10 v. Amazon/Google decision:
[On the issue of direct infringement of the performance right:] Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user's computer screen. Because Google's computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any "material objects ... in which a work is fixed ... and from which the work can be perceived, reproduced, or otherwise communicated" and thus cannot communicate a copy. 17 U.S.C. 101.
Instead of communicating a copy of the image, Google provides HTML instructions that direct a user's browser to a website publisher's computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. [...]
Perfect 10 also argues that Google violates Perfect 10's right to display full-size images because Google's in-line linking meets the Copyright Act's definition of "to perform or display a work ‘publicly.'" 17 U.S.C. 101. This phrase means "to transmit or otherwise communicate a performance or display of the work to ... the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times." Id. Perfect 10 is mistaken. Google's activities do not meet this definition because Google transmits or communicates only an address which directs a user's browser to the location where a copy of the full-size image is displayed. Google does not communicate a display of the work itself.
[On the issue of contributory infringement of the performance right:] 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. [...]
Our tests for contributory liability are consistent with the rule set forth in Grokster. We have adopted the general rule set forth in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., namely: "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory' infringer." [...]
There is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials. We cannot discount the effect of such a service on copyright owners, even though Google's assistance is available to all websites, not just infringing ones. Applying our test, Google could be held contributorily liable [only] 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. [...]
We evaluate Perfect 10's arguments that Google is vicariously liable in light of the direct infringement that is undisputed by the parties, namely, the third-party websites' reproduction, display, and distribution of unauthorized copies of Perfect 10's images on the Internet. Perfect 10, 416 F. Supp. 2d at 852; see supra Section IV.A. In order to prevail at this preliminary injunction stage, Perfect 10 must demonstrate a likelihood of success in establishing that Google has the right and ability to stop or limit the infringing activities of third party websites. In addition, Perfect 10 must establish a likelihood of proving that Google derives a direct financial benefit from such activities. Perfect 10 has not met this burden.
With respect to the "control" element set forth in Grokster, Perfect 10 has not demonstrated a likelihood of showing that Google has the legal right to stop or limit the direct infringement of third-party websites. [...] Google cannot stop any of the third-party websites from reproducing, displaying, and distributing unauthorized copies of Perfect 10's images because that infringing conduct takes place on the third-party websites. Google cannot terminate those third-party websites or block their ability to "host and serve infringing full-size images" on the Internet.
The analysis was almost exactly the same for Amazon.
Note the parts I highlighted in bold. It showed that you cannot be held liable for merely providing a link to infringing content. You must also have actual, constructive knowledge of the infringement, the ability "take simple measures" to prevent the infringement, and fail to do so. Unless all three conditions are met, you are not a contributory infringer. And in no case could merely providing a link be considered inducement or vicarious infringement.
The argument that it's a "much higher bar" misses the point. Yes, it would have to be proved beyond a reasonable doubt.
That's not what I meant, and I'm sure you know it. You could be guilty of inducement, contributory infringement, or vicarious infringement, but still be innocent of "conspiracy" or "aiding and abetting." The "higher bar" isn't the standard of proof, it's that civil liability and criminal accomplice liability are not the same thing at all. Showing that someone is guilty of secondary infringement under civil law - even beyond a reasonable doubt - is insufficient to show any form of guilt under criminal law.
The classic definition, when applied to copyright, is espoused in U.S. v. Rose:
In order to aid and abet another to commit a crime, it is necessary that a defendant wilfully associate himself in some way with the criminal venture, that he willfully participate in it as in something that he wishes to bring about, and that he wilfully seek by some action of his to make it succeed. Thus [...] if you find that the defendant wilfully associated himself with others who were reprinting or publishing the allegedly infringing music books, and that he wilfully participated in their venture [...] through acts of his own calculated to make their venture succeed, even though he did not do the actual reproduction himself, then you may find that the defendant was an aider and abettor.
There's no way in Hell that merely providing a link should rise to that standard.
It's not a red herring at all. Mike was arguing that they should just go after the direct infringers. I'm pointing out that indirect infringers are just as culpable.
Actually, if the content is user-generated (as most "pirate sites" are), then they would already be going after the indirect infringers. The direct infringers would be the users; the secondary infringers would be the sites that host their content (just as Napster and Grokster were secondary, not primary, infringers).
But, again, this has nothing to do with jurisdictional issues.
Those aren't reasons to have a disparity between reproduction/distribution and public performance.
Certainly they are. Infringement of a public performance right, alone, should simply not be a felony. The punishment for publicly performing a work without permission massively outweighs the damage to the public caused by that infringement.
We already have too many punishments that are far too draconian to be just. Adding more won't make the law any more just.
Wrong. The public performance right is distinct from the distribution right.
But if the site is actually hosting the content from their servers, then they're violating the distribution right (and also the copying right), which is already a potential felony. So making the performance right a felony accomplishes nothing. So, no, not "wrong."
It is possible to be violating the public performance right while NOT violating the distribution right.
But if you're not violating the distribution right, then you shouldn't be considered a potential felon. That's the whole point.
Other sites/operators that assist in the infringement could potentially be liable under either an accomplice or conspiracy theory.
If that were true, then they would be an accomplice or conspirator to the copying or distribution of the works, already a potential felony. Which, again, means that making the public performance right a felony accomplishes nothing.
And assisting others to infringe makes one just as liable as the direct infringer.
There's no way in Hell that merely embedding a link rises to the level of "conspiracy" or "aiding and abetting" the principal infringers. No court in the land has ever said it does, because the notion is ridiculous. In fact, most courts have found that providing a link is not even secondary civil infringement - and secondary liability for civil infringement is a much lower bar than "conspiracy" or "aiding and abetting" in criminal law.
Sometimes those people are unknown or out of the jurisdiction.
The jurisdictional issue is a red herring. First of all, it has nothing to do with whether performance should be a felony. Second, making performance a felony solves nothing in this regard. If "those people" are outside of the reach of the laws regarding felony copying or distribution, then they would also be outside of the reach of the laws regarding felony performance. Third, going after the links would do nothing to take infringing works out of commission, since the infringing works would still be publicly available at the original sites.
It's already a tort and a misdemeanor. How would making it a felony open up so many problems that don't already exist?
Certain actions are not available to the government for misdemeanor charges. For example, there is no extradition on misdemeanor warrants. There is also a huge difference for those arrested: you don't lose your voting rights, misdemeanors usually aren't counted in "three strikes" laws, you don't lose your professional license, you are likely to get community service rather than jail time, etc.
This is already way too harsh for someone who did nothing worse than share a link on Facebook. How is it just to punish them even more than they already are?
Also, as I previously noted, in tort cases, merely sharing a link does not even rise to the level of secondary liability. You can't possibly think that making it a felony would not have significant chilling effects.
I take her as saying only that authors' interests are temporally prior to the public interest, which is the ultimate end of the copyright system.
Even if you do assume this is what she meant (and I don't), it makes no sense at all.
There are only two possible ways to interpret her statements:
1. Copyright is granted to authors first in time, then is granted to the public.
This makes no sense, because copyright is never "granted to the public." By default, the public has all of the rights that are taken away from them, and granted exclusively to authors, in 17 USC 106. Those rights are either property rights (in that copy) or free speech rights (in the expression embodied in that copy) - neither of which is granted by the government. And neither of which the government has a right to take away, based on the rights granted to it in the Constitution.
In fact, when works enter the public domain, nothing whatsoever is "granted" to the public. Instead, the government simply ceases infringing on the property rights and free speech rights that the public naturally holds.
2. Copyright temporarily places the interests of copyright holders in front of the general public, until it expires.
This is even more ridiculous. Copyright's primary purpose is to benefit the public, even while works are still under copyright. The idea is that the rights that the public gives up (voluntarily, in theory) are overshadowed by the benefits reaped by the public, in the form of "broad public availability of literature, music, and the other arts."
This is the primary reason that such things as first sale rights, fair use, or the idea/expression dichotomy exist. They are in the statutes because the public must benefit from the works even if they're still under copyright protection. If that wasn't a concern, then these things should not exist at all. (And I get the impression that Pallante would not be overly concerned if these things were done away with.)
So, no matter how you interpret her statements, she's still completely wrong on this point.
Now if only you'd read it to know that downloads (at least the vast majority of downloads and the most common cases) are not criminal and certainly not felonious.
Well, you know, except for cases where the DOJ decided it was felonious.
Like the Rojadirecta site, for example, or TVShack (which neither hosted infringing materials, nor let users download the materials through the site).
Whether those downloads, which fall under the "most common cases," were criminal (or felonious) or not, the U.S. DOJ certainly thought they were. The fact that their mere belief is enough to bring charges, should be a big huge red flag that the current copyright statutes (if indeed the DOJ followed them) are horrifying.
Re: Re: Response to: Anonymous Coward on Mar 19th, 2013 @ 1:24pm
What rights are stripped? What rights does a person hold that are then taken from them?
Easy question to answer. What are you not allowed to do with the property that you purchased?
Those are the property rights that are stripped away.
In this particular case, it is the right to modify the property that you legally own. A right, by the way, that is not a right granted to authors in 106 - hence is not stripped away from property owners.
People own exactly what they have bought. If certain rights are reserved to others and those rights are not purchased by you, then guess what, you don't own those rights.
If you have actually bought something (as opposed to renting or leasing), then you have bought all the respective rights inherent in the property you have bought.
And property rights are not "creatures of statute" (unlike copyright laws). This means that you do not need explicit authorization under statute, do do whatever you like with your property. Those rights are inalienable - "natural rights," in the parlance of the Founders.
This is why it's called the "first sale" doctrine. The first sale is where the copyright holder loses their rights in that particular copy.
They do retain rights in other copies - no matter who makes them. The fact that you can't manufacture and distribute other copies of property that you own makes copyright a limitation on inalienable property rights. In fact, that is the nature of a government-granted monopoly right, which is what copyright is (intentionally).
No, you're completely wrong. Without the DMCA safe harbors, every site and online service out there would be terrified about the idea of user generated content.
This is unquestionably true. In fact, one of the reasons that the DMCA was passed, is that websites were sued, and some were found to be liable for their users' content. On the other hand, in other circuits, the opposite was true, so there was a "circuit split" in the case law. (I've been trying to remember the cases, but I can't right now.)
No question that the DMCA safe harbors were definitely a good thing.
There are only three possible ways it could be improved:
1. Issue a clarification that following the DMCA exempts you from criminal infringement;
2. Switch to a notice-counternotice-takedown system (instead of a notice-takedown-counternotice system);
3. Increase the consequences for issuing improper takedowns (like in the Lenz case).
Somehow, I doubt that any of this is what Pallante has in mind. So, here, I agree with Mike: if destroying safe harbors is the price we pay for copyright term reductions, it's not worth it.
Actually, no.
To use the classic example of Terry Nation and the Daleks...
Well, I'm afraid you're wrong. I know this, because Britain does not have "moral rights."
In fact, Nation simply retained the copyright in the character. This link from the Daily Mail explains it (scroll down to the middle):
Until 1963, the BBC had used staff writers, ensuring that the Corporation kept the copyright of their work. But from that point on, the Corporation started using self-employed writers such as Nation. And in many cases these new writers could keep the rights for themselves which, in the case of the Daleks, proved a bonanza.
The monsters not only ensured the success of the programme for years to come, they created a new Doctor Who market for toys, books, games, soap and sweet cigarettes. Nothing like this had been seen before. By the end of 1964, licences had been issued for almost anything that could be branded with the Dalek logo.
The monsters not only ensured the success of the programme for years to come, they created a new Doctor Who market for toys, books, games, soap and sweet cigarettes.
The phenomenon made Nation a rich man; despite the fact he was still being paid at the standard BBC rates of 275 guineas per episode, by March 1965, he had earned £300,000 from the Daleks. That is the equivalent of £4.4million today.
'It was the first outbreak of merchandising,' noted fellow Doctor Who writer Terrance Dicks.
'And Terry Nation got rich off it. I always used to say he was the only man to get rich off Doctor Who.'
I think statutory damages should be more in line with the value of the work and the nature of the violation.
The theoretical reason that statutory damages are available, is that calculating actual damages is difficult.
Nonetheless, there's a kind of "unwritten rule" in case law that says statutory damages should be in the general ballpark of what actual damages would be. Unfortunately, since it's an unwritten rule, juries are usually not informed of it. The juries are just given a big range, and told to come up with something. That's why the damages in e.g. the Jammie Thomas suit were so astronomical.
What about the fact that streaming stations have to pay for music? Why does Sirius/XM get a different rate? Shouldn't terrestrial and streaming radio stations play under the same rules?
Terrestrial radio has been paying the same kinds of royalties for nearly a hundred years. The RIAA said that digital streams deserved a different rate, because it wasn't like terrestrial radio. (Specifically, they used the "it's digital, so it's piracy!" argument.)
To now come back and claim that terrestrial radio should pay that different rate, because it's the same as digital streaming, is the height of hypocrisy.
If terrestrial radio did have to pay those royalty rates, it would have to pay an additional 20% of its annual revenue (or possibly more) - something like $2 billion per year. At least, according to this Billboard article.
Add to this, the fact that terrestrial radio is dying - mostly from competition from streaming services. Making them pay these royalties would simply put the nail in the coffin.
Now, I don't listen to terrestrial radio, and haven't for years. So, honestly, it's no skin off my nose. But if you actually like radio, then these royalty rates are a terrible idea.
Read it again. The clause grants congress the power to do so, but does not mandate it.
You're absolutely correct on this point.
The constitution had to permit congress this ability since it otherwise conflicts with the first amendment (your free-speech ability to say what someone else has said).
That, however, is incorrect. For one thing, the First Amendment (protecting free speech rights) was not around when the Constitution was written, so there would be nothing to conflict with.
The real reason is that certain publishers (mainly Joel Barlow) convinced some of the Founders that, without a post-publication monopoly, they would not be able to publish to the general public (or at all).
In fact, this was explicitly written into the copyright laws of most states: in order to get copyright protection, you had to furnish editions of the works to the public at "reasonable prices."
To the Founders, this must have seemed like a no-brainer. By granting copyright to authors, and not the State, they avoided any censorship issues inherent in a state-controlled publication monopoly. Also, the laws explicitly applied only to publishers or booksellers, so it had a negligible negative affect on the general public. But the result of more books, at cheaper prices, benefited the public immensely.
So, at the time, it was a terrific idea. Unfortunately, times have changed. Technology has eradicated the difference between public and publisher, but copyright law has changed in the opposite direction. The copyright laws we have now would absolutely horrify the creators of the Copyright Clause.
If international treaties overrode the Constitution, then why doesn't American copyright law have the "moral rights" clause almost all other countries have, giving rights to work-for-hire creators for additional income and control over their work that American laws ignore?
First: The "moral rights" in other countries don't generate "additional income" for artists. They cover things like attribution, and control over the "integrity" of the work. They are distinct from "economic rights" in those countries - in fact, the term lengths are often different.
The U.S. only recognizes "economic rights." We have been able to form treaties with countries that have "moral rights," because in theory those rights are covered by libel and slander laws in the U.S.
Second: International treaties do not override the Constitution, nor U.S. laws in general. If an international treaty requires changes to U.S. law, then those changes must be explicitly approved by Congress. Also, Congress must approve the joining of the U.S. to any international treaties.
The U.S. can change its laws any time it likes. The issue is that it may then no longer be part of that international treaty. Generally speaking, Congress doesn't like doing that.
Speaking of public domain, there's a project that I want sent to public domain, who do I contact. To have it archived? Project Gutenberg? Archive.org?
I'm assuming that you are the one that currently holds the copyright on the work. (If not, you can't do anything about the work's copyright status.)
Technically, it's impossible to put anything into the public domain. This is due to the "droit d'auteur" ("moral rights") in copyright laws of other countries (mainly Europe). The closest that you can do is issue it under a CC0 license: http://creativecommons.org/choose/zero/
But no matter what you do, you are legally still the copyright holder. So you could, for example, change or revoke the license at any time. (Once rights are granted, however, they would be very hard to take back - anyone who used the work while it was still under one license, retains the rights granted under that license.)
If you issue the work under a CC0 license, then I'm sure Archive.org will host it. Probably Project Gutenberg as well (if it's a book), though you should check with them to make sure.
There's nothing stopping you from using both if you want. In fact, I'd recommend using as many outlets as humanly possible, including the "pirate sites."
And can we use Kickstarter to help fund it to make hard copies to sell, or am I missing what public domain is all about?
Absolutely you can do this. You do not need copyright in order to fund or sell copies of your works. Without copyright, the only thing you would lose is the ability to prevent everyone else from doing the same.
I'm personally excited that statutory damages are going to be revisited. I've always believed that statutory damages should only be available if the infringement was committed for commercial gain.
Whether that's the direction we go is another matter.
If any good changes are made to U.S. copyright law, I wonder what the response will be from the other countries who are being forced into copyright maximalism by the U.S.
Unless... he goes to the bathroom, puts on a disguise and comes back as Alan Cooper
Alan Cooper: "I'm here, Your Honor!"
Judge Wright: "Wait a minute, you're just John Steele in Buddy Holly glasses!"
Cooper: "Up, up, and away!" (Crashes through window)
There's a reason major artists are holding off and don't want their music on spotify, or rdio as well.
They've already got the exposure and streams hurt their sales.
I don't know about Grooveshark, but as far as Rdio and Spotify are concerned, this argument is complete bunk.
Bands may decide not to work with them, of course. But that doesn't mean their decision is a good one.
At least the other streaming services are paying the little that they do.
Grooveshark also pays artists.
Grooveshark doesn't give artists a choice.
In what way? If the artists don't want their music on the service, they file a DMCA notice. Grooveshark follows the law, removes the music, and cuts off the upload abilities of repeat infringers (permanently).
On the other hand, if they want to get paid for the music that users upload, they can work out a license with Grooveshark, and get paid when users listen to the music.
The setup is very much like YouTube's ContentID service - which has paid artists a lot of money since it was created.
On the post: Copyright Office Boss Admits Copyright Law Is Broken And Needs A Rethink... But Still Focused On Bad Ideas
Re: Re: Re: Re: Re:
On the post: Copyright Office Boss Admits Copyright Law Is Broken And Needs A Rethink... But Still Focused On Bad Ideas
Re: Re: Re: Re: Re:
We weren't speaking of him (he didn't infringe on the public performance right); he's not Mike's buddy; and saying he "got his ass handed to him" is not entirely accurate. The 9th Circuit did roll back some of the worst parts of the District Court's ruling (the overly broad injunction, and their ridiculous reasoning for rejecting DMCA safe harbors).
The Techdirt article is here:
http://www.techdirt.com/articles/20130321/12104822407/isohunt-still-guilty-contributory-infri ngement.shtml
On the post: Copyright Office Boss Admits Copyright Law Is Broken And Needs A Rethink... But Still Focused On Bad Ideas
Re: Re: Re: Re: Re:
And also the copying right - which is already a possible felony. I see your point about streaming/performance vs. downloads/distribution, but the point is still moot.
If they are assisting the violation of the distribution right, then they can be a felon. If they are assisting the violation of the public performance right, then they cannot. That's the disparity the Register is addressing.
There's a good reason that disparity exists. The only reason to make public performance (or display) a felony, is to jail people who did not make copies of the works, nor distribute them to anyone else. This would directly threaten to put people like theater or nightclub owners in jail for felony charges. Not to mention the artists who perform these works.
You've chided the (somewhat sarcastic) "Free Justin Bieber" campaign for spreading "FUD." But if it's not applied to people like him, then who does it affect? The sites that intentionally host the content (and the people who aid and abet them, if that standard applies) are already facing felony charges. On the other hand, pirate "link sites" and search engines won't be affected at all - since they are not themselves infringing on the public performance right.
I don't see the point in pulling out the case law again when you just deny its import, but I'll point out that the Ninth Circuit in Perfect 10 v. Amazon said that Google could be contributorily liable for linking.
I've never "denied its import." I have, however, denied that your interpretation of the case law has import. Which is what I am going to do now.
Let's examine that Perfect 10 v. Amazon/Google decision:
The analysis was almost exactly the same for Amazon.
Note the parts I highlighted in bold. It showed that you cannot be held liable for merely providing a link to infringing content. You must also have actual, constructive knowledge of the infringement, the ability "take simple measures" to prevent the infringement, and fail to do so. Unless all three conditions are met, you are not a contributory infringer. And in no case could merely providing a link be considered inducement or vicarious infringement.
The argument that it's a "much higher bar" misses the point. Yes, it would have to be proved beyond a reasonable doubt.
That's not what I meant, and I'm sure you know it. You could be guilty of inducement, contributory infringement, or vicarious infringement, but still be innocent of "conspiracy" or "aiding and abetting." The "higher bar" isn't the standard of proof, it's that civil liability and criminal accomplice liability are not the same thing at all. Showing that someone is guilty of secondary infringement under civil law - even beyond a reasonable doubt - is insufficient to show any form of guilt under criminal law.
The classic definition, when applied to copyright, is espoused in U.S. v. Rose:
There's no way in Hell that merely providing a link should rise to that standard.
It's not a red herring at all. Mike was arguing that they should just go after the direct infringers. I'm pointing out that indirect infringers are just as culpable.
Actually, if the content is user-generated (as most "pirate sites" are), then they would already be going after the indirect infringers. The direct infringers would be the users; the secondary infringers would be the sites that host their content (just as Napster and Grokster were secondary, not primary, infringers).
But, again, this has nothing to do with jurisdictional issues.
Those aren't reasons to have a disparity between reproduction/distribution and public performance.
Certainly they are. Infringement of a public performance right, alone, should simply not be a felony. The punishment for publicly performing a work without permission massively outweighs the damage to the public caused by that infringement.
We already have too many punishments that are far too draconian to be just. Adding more won't make the law any more just.
On the post: Copyright Office Boss Admits Copyright Law Is Broken And Needs A Rethink... But Still Focused On Bad Ideas
Re: Re: Re:
But if the site is actually hosting the content from their servers, then they're violating the distribution right (and also the copying right), which is already a potential felony. So making the performance right a felony accomplishes nothing. So, no, not "wrong."
It is possible to be violating the public performance right while NOT violating the distribution right.
But if you're not violating the distribution right, then you shouldn't be considered a potential felon. That's the whole point.
Other sites/operators that assist in the infringement could potentially be liable under either an accomplice or conspiracy theory.
If that were true, then they would be an accomplice or conspirator to the copying or distribution of the works, already a potential felony. Which, again, means that making the public performance right a felony accomplishes nothing.
And assisting others to infringe makes one just as liable as the direct infringer.
There's no way in Hell that merely embedding a link rises to the level of "conspiracy" or "aiding and abetting" the principal infringers. No court in the land has ever said it does, because the notion is ridiculous. In fact, most courts have found that providing a link is not even secondary civil infringement - and secondary liability for civil infringement is a much lower bar than "conspiracy" or "aiding and abetting" in criminal law.
Sometimes those people are unknown or out of the jurisdiction.
The jurisdictional issue is a red herring. First of all, it has nothing to do with whether performance should be a felony. Second, making performance a felony solves nothing in this regard. If "those people" are outside of the reach of the laws regarding felony copying or distribution, then they would also be outside of the reach of the laws regarding felony performance. Third, going after the links would do nothing to take infringing works out of commission, since the infringing works would still be publicly available at the original sites.
It's already a tort and a misdemeanor. How would making it a felony open up so many problems that don't already exist?
Certain actions are not available to the government for misdemeanor charges. For example, there is no extradition on misdemeanor warrants. There is also a huge difference for those arrested: you don't lose your voting rights, misdemeanors usually aren't counted in "three strikes" laws, you don't lose your professional license, you are likely to get community service rather than jail time, etc.
This is already way too harsh for someone who did nothing worse than share a link on Facebook. How is it just to punish them even more than they already are?
Also, as I previously noted, in tort cases, merely sharing a link does not even rise to the level of secondary liability. You can't possibly think that making it a felony would not have significant chilling effects.
On the post: Copyright Office Boss Admits Copyright Law Is Broken And Needs A Rethink... But Still Focused On Bad Ideas
Re: Re: Marginal defense of Pallante
Even if you do assume this is what she meant (and I don't), it makes no sense at all.
There are only two possible ways to interpret her statements:
1. Copyright is granted to authors first in time, then is granted to the public.
This makes no sense, because copyright is never "granted to the public." By default, the public has all of the rights that are taken away from them, and granted exclusively to authors, in 17 USC 106. Those rights are either property rights (in that copy) or free speech rights (in the expression embodied in that copy) - neither of which is granted by the government. And neither of which the government has a right to take away, based on the rights granted to it in the Constitution.
In fact, when works enter the public domain, nothing whatsoever is "granted" to the public. Instead, the government simply ceases infringing on the property rights and free speech rights that the public naturally holds.
2. Copyright temporarily places the interests of copyright holders in front of the general public, until it expires.
This is even more ridiculous. Copyright's primary purpose is to benefit the public, even while works are still under copyright. The idea is that the rights that the public gives up (voluntarily, in theory) are overshadowed by the benefits reaped by the public, in the form of "broad public availability of literature, music, and the other arts."
This is the primary reason that such things as first sale rights, fair use, or the idea/expression dichotomy exist. They are in the statutes because the public must benefit from the works even if they're still under copyright protection. If that wasn't a concern, then these things should not exist at all. (And I get the impression that Pallante would not be overly concerned if these things were done away with.)
So, no matter how you interpret her statements, she's still completely wrong on this point.
On the post: Copyright Office Boss Admits Copyright Law Is Broken And Needs A Rethink... But Still Focused On Bad Ideas
Re: Re: Re: Re: Re: Re:
Well, you know, except for cases where the DOJ decided it was felonious.
Like the Rojadirecta site, for example, or TVShack (which neither hosted infringing materials, nor let users download the materials through the site).
Whether those downloads, which fall under the "most common cases," were criminal (or felonious) or not, the U.S. DOJ certainly thought they were. The fact that their mere belief is enough to bring charges, should be a big huge red flag that the current copyright statutes (if indeed the DOJ followed them) are horrifying.
On the post: The Fight Isn't About Unlocking Mobile Phones, But Whether You Actually Own What You Bought
Re: Re: Response to: Anonymous Coward on Mar 19th, 2013 @ 1:24pm
Easy question to answer. What are you not allowed to do with the property that you purchased?
Those are the property rights that are stripped away.
In this particular case, it is the right to modify the property that you legally own. A right, by the way, that is not a right granted to authors in 106 - hence is not stripped away from property owners.
On the post: The Fight Isn't About Unlocking Mobile Phones, But Whether You Actually Own What You Bought
Re: Re: Re:
If you have actually bought something (as opposed to renting or leasing), then you have bought all the respective rights inherent in the property you have bought.
And property rights are not "creatures of statute" (unlike copyright laws). This means that you do not need explicit authorization under statute, do do whatever you like with your property. Those rights are inalienable - "natural rights," in the parlance of the Founders.
This is why it's called the "first sale" doctrine. The first sale is where the copyright holder loses their rights in that particular copy.
They do retain rights in other copies - no matter who makes them. The fact that you can't manufacture and distribute other copies of property that you own makes copyright a limitation on inalienable property rights. In fact, that is the nature of a government-granted monopoly right, which is what copyright is (intentionally).
On the post: More Details On Copyright Office's Suggestions On Copyright Reform; Some Good, Some Bad
Re: Re: No safe harbor
This is unquestionably true. In fact, one of the reasons that the DMCA was passed, is that websites were sued, and some were found to be liable for their users' content. On the other hand, in other circuits, the opposite was true, so there was a "circuit split" in the case law. (I've been trying to remember the cases, but I can't right now.)
No question that the DMCA safe harbors were definitely a good thing.
There are only three possible ways it could be improved:
1. Issue a clarification that following the DMCA exempts you from criminal infringement;
2. Switch to a notice-counternotice-takedown system (instead of a notice-takedown-counternotice system);
3. Increase the consequences for issuing improper takedowns (like in the Lenz case).
Somehow, I doubt that any of this is what Pallante has in mind. So, here, I agree with Mike: if destroying safe harbors is the price we pay for copyright term reductions, it's not worth it.
On the post: Surprise: Register Of Copyrights Expected To Call For Reduction In Copyright Term
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Unconstitutional
http://www.dailymail.co.uk/tvshowbiz/article-1382252/Daleks-Doctor-Whos-notorious-enemies-r eturn-screens.html
On the post: Surprise: Register Of Copyrights Expected To Call For Reduction In Copyright Term
Re: Re: Re: Re: Re: Re: Re: Re: Re: Unconstitutional
To use the classic example of Terry Nation and the Daleks...
Well, I'm afraid you're wrong. I know this, because Britain does not have "moral rights."
In fact, Nation simply retained the copyright in the character. This link from the Daily Mail explains it (scroll down to the middle):
On the post: Surprise: Register Of Copyrights Expected To Call For Reduction In Copyright Term
Re: Re: Statutory damages
The theoretical reason that statutory damages are available, is that calculating actual damages is difficult.
Nonetheless, there's a kind of "unwritten rule" in case law that says statutory damages should be in the general ballpark of what actual damages would be. Unfortunately, since it's an unwritten rule, juries are usually not informed of it. The juries are just given a big range, and told to come up with something. That's why the damages in e.g. the Jammie Thomas suit were so astronomical.
On the post: More Details On Copyright Office's Suggestions On Copyright Reform; Some Good, Some Bad
Re:
Terrestrial radio has been paying the same kinds of royalties for nearly a hundred years. The RIAA said that digital streams deserved a different rate, because it wasn't like terrestrial radio. (Specifically, they used the "it's digital, so it's piracy!" argument.)
To now come back and claim that terrestrial radio should pay that different rate, because it's the same as digital streaming, is the height of hypocrisy.
If terrestrial radio did have to pay those royalty rates, it would have to pay an additional 20% of its annual revenue (or possibly more) - something like $2 billion per year. At least, according to this Billboard article.
Add to this, the fact that terrestrial radio is dying - mostly from competition from streaming services. Making them pay these royalties would simply put the nail in the coffin.
Now, I don't listen to terrestrial radio, and haven't for years. So, honestly, it's no skin off my nose. But if you actually like radio, then these royalty rates are a terrible idea.
On the post: Surprise: Register Of Copyrights Expected To Call For Reduction In Copyright Term
Re: Re: Re: Re: Unconstitutional
On the post: Surprise: Register Of Copyrights Expected To Call For Reduction In Copyright Term
Re: Re: Re: Unconstitutional
You're absolutely correct on this point.
The constitution had to permit congress this ability since it otherwise conflicts with the first amendment (your free-speech ability to say what someone else has said).
That, however, is incorrect. For one thing, the First Amendment (protecting free speech rights) was not around when the Constitution was written, so there would be nothing to conflict with.
The real reason is that certain publishers (mainly Joel Barlow) convinced some of the Founders that, without a post-publication monopoly, they would not be able to publish to the general public (or at all).
In fact, this was explicitly written into the copyright laws of most states: in order to get copyright protection, you had to furnish editions of the works to the public at "reasonable prices."
To the Founders, this must have seemed like a no-brainer. By granting copyright to authors, and not the State, they avoided any censorship issues inherent in a state-controlled publication monopoly. Also, the laws explicitly applied only to publishers or booksellers, so it had a negligible negative affect on the general public. But the result of more books, at cheaper prices, benefited the public immensely.
So, at the time, it was a terrific idea. Unfortunately, times have changed. Technology has eradicated the difference between public and publisher, but copyright law has changed in the opposite direction. The copyright laws we have now would absolutely horrify the creators of the Copyright Clause.
On the post: Surprise: Register Of Copyrights Expected To Call For Reduction In Copyright Term
Re: Re: Re: Re: Re: Re: Re: Unconstitutional
First: The "moral rights" in other countries don't generate "additional income" for artists. They cover things like attribution, and control over the "integrity" of the work. They are distinct from "economic rights" in those countries - in fact, the term lengths are often different.
The U.S. only recognizes "economic rights." We have been able to form treaties with countries that have "moral rights," because in theory those rights are covered by libel and slander laws in the U.S.
Second: International treaties do not override the Constitution, nor U.S. laws in general. If an international treaty requires changes to U.S. law, then those changes must be explicitly approved by Congress. Also, Congress must approve the joining of the U.S. to any international treaties.
The U.S. can change its laws any time it likes. The issue is that it may then no longer be part of that international treaty. Generally speaking, Congress doesn't like doing that.
On the post: Surprise: Register Of Copyrights Expected To Call For Reduction In Copyright Term
Re: Public Domain project
I'm assuming that you are the one that currently holds the copyright on the work. (If not, you can't do anything about the work's copyright status.)
Technically, it's impossible to put anything into the public domain. This is due to the "droit d'auteur" ("moral rights") in copyright laws of other countries (mainly Europe). The closest that you can do is issue it under a CC0 license:
http://creativecommons.org/choose/zero/
But no matter what you do, you are legally still the copyright holder. So you could, for example, change or revoke the license at any time. (Once rights are granted, however, they would be very hard to take back - anyone who used the work while it was still under one license, retains the rights granted under that license.)
If you issue the work under a CC0 license, then I'm sure Archive.org will host it. Probably Project Gutenberg as well (if it's a book), though you should check with them to make sure.
There's nothing stopping you from using both if you want. In fact, I'd recommend using as many outlets as humanly possible, including the "pirate sites."
And can we use Kickstarter to help fund it to make hard copies to sell, or am I missing what public domain is all about?
Absolutely you can do this. You do not need copyright in order to fund or sell copies of your works. Without copyright, the only thing you would lose is the ability to prevent everyone else from doing the same.
On the post: Surprise: Register Of Copyrights Expected To Call For Reduction In Copyright Term
Statutory damages
Whether that's the direction we go is another matter.
If any good changes are made to U.S. copyright law, I wonder what the response will be from the other countries who are being forced into copyright maximalism by the U.S.
On the post: Judge Wright Orders Second Prenda Hearing, Tells Everyone They Better Actually Show Up This Time
Re:
Alan Cooper: "I'm here, Your Honor!"
Judge Wright: "Wait a minute, you're just John Steele in Buddy Holly glasses!"
Cooper: "Up, up, and away!" (Crashes through window)
On the post: Case Study: Band Embraces Grooveshark And Catapults Its Career
Re: this band PAID for exposure.
They've already got the exposure and streams hurt their sales.
I don't know about Grooveshark, but as far as Rdio and Spotify are concerned, this argument is complete bunk.
Bands may decide not to work with them, of course. But that doesn't mean their decision is a good one.
At least the other streaming services are paying the little that they do.
Grooveshark also pays artists.
Grooveshark doesn't give artists a choice.
In what way? If the artists don't want their music on the service, they file a DMCA notice. Grooveshark follows the law, removes the music, and cuts off the upload abilities of repeat infringers (permanently).
On the other hand, if they want to get paid for the music that users upload, they can work out a license with Grooveshark, and get paid when users listen to the music.
The setup is very much like YouTube's ContentID service - which has paid artists a lot of money since it was created.
Next >>