The exclusive rights obtained by Mike are limited in nature by U.S. Code § 107. Whilst the copyright may be said to be "exclusive" the reality is there are limitations to the rights granted to the copyright holder. As Fair Use is legally defined as "no an infringement of copyright" the exclusive rights held by the owner have no control over a 3rd party wishing to engage in any appropriate Fair Use activity.
You are attempting to grant powers to copyright holders that they never legally had in the first place.
Assuming that Mike's work is copyrighted, then the default is that others have the right to Fair Use of his work without his permission. Mike obtained limited exclusive rights in it the moment he fixed it in a tangible medium. Mike was never granted the right to limit others Fair Use of his work. I do not need to be excused to make Fair Use of Mike's work because Mike was never granted legal rights to limited Fair Use in the first place, Section 106 in granting exclusive rights does so subject to sections 107 through 122. Fair Use restricted the rights Mike has over his work and grants the Right of third parties to do what ever they like with Mike's work within the parameters of U.S. Code § 107. Before Mike got his exclusive rights in Section 106 the legislation already limited the nature of those rights with the contents of Sections 107 through 122, which is a pretty big list of things!!
US Code § 106 . Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
U.S. Code § 107 - Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
The Australian Government needs to urgently pass legislation to allow the officers of the federal government access to peoples homes to inspect refrigerators for unhealthy foods.
Virtually all western governments are talking it upon themselves to invade personal privacy and erode civil liberties to protect the population from the rather minuscule actuarial risk of death or injury from terrorism. These same governments need to equally apply the newly acquired powers for alternative preventable risks of death and injury.
Based on the additional powers governments are granting themselves "because terrorism" there needs to be similar invasions of privacy and liberties "because heart disease". It is entirely appropriate for governments to start inspecting the fridges of citizens for harmful foods that may lead to preventable death and injury. The risk of preventable death and injury from heart disease is substantial. In 2012 there where 9,286 deaths from heart attacks in Australia while there where 0 deaths from terrorist attacks.
It has been determined, by the powers that be, that the risk of terrorism justifies sweeping changes to peoples privacy for their own protection. These same "powers that be" need to put equal or greater efforts into other avoidable risks of death and injury the people are also exposed to, such as the biggest killer of them all, heart disease cause by bad diet.
No-knock warrants need to be issued for random inspection of peoples refrigerators to hunt down and eradicate foods contributing to the serious and ongoing threat of heart disease. To make matters worse there are parents out their feeding bad foods to innocent children throughout Australia. We need new laws and random refrigerator inspections in peoples homes for the sake of these poor children. For heavens sake we can't delay, this needs to happen for the sake of the children, the poor chubby children.
In New Zealand you'd run afoul of section 240 of the NZ Crimes Act 1961 sorry.
240 Obtaining by deception or causing loss by deception (1)Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—
(a)obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or
(b)in incurring any debt or liability, obtains credit; or
(c)induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or
(d)causes loss to any other person.
(2)In this section, deception means— (a)a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and (i)knows that it is false in a material particular; or (ii)is reckless as to whether it is false in a material particular; or
(b)an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
(c)a fraudulent device, trick, or stratagem used with intent to deceive any person.
The judge specified that the hard disks where not to be given to the FBI without further consultation with the courts and the defence but the FBI took them anyway. It was the taking without the approval of the court that made this illegal. Basically the FBI violated a NZ Court order. This might have contributed to the NZ legal system making multiply decisions in favour of Dotcom against the wishes of the Americans. It's not a wise thing to ignore the wishes of the court.
Unfortunately the charges are not "theft" they are "conspiracy to commit" charges including money laundering, racketeering, copyright infringing and aiding and abetting criminal copyright infringement.
Without the aiding and abetting criminal copyright infringement the rest of the conspiracy charges disappear but without the conspiracy to commit money laundry and conspiracy to commit racketeering there is no legal basis to extradite from NZ to the USA (direct copyright infringement is not an offence in the extradition treaty between the countries).
Conspiracy to commit copyright infringement I don't think has every been tried before in a prosecution with the Dotcom defence referring to it as 3rd party copyright infringement as a made up law that doesn't exist on the books. The aiding and abetting criminal copyright infringement charges are also a perversion of how aiding and abetting laws have historically been applied and given the laws have never been applied in this way in the past it's virtually impossible to show Dotcom et.al. possessed a criminal mind necessary for the prosecution when they believed the DMCA Safe Harbor provisions protected them form liability.
That is why the DOJ appears to be hell bent on tying up all Dotcom's assets so he can not pay for a suitable legal challenge for the new application of laws the DOJ dreamed up in this case. The NZ courts have taken a more balanced approach and let Dotcom resources to challenge the legal validity of the process to date. This is probably due to the lack of revolving doors between the NZ Court system and the media industries to date ;-)
New Zealand law is based on English Common Law. Up until 2003 the highest court for New Zealand was the Privy Council which is in London. It is very common for high level appeals cases to reference decisions from UK, Canada and Australian cases and Judges to apply principals found in these particular jurisdictions in New Zealand. So if UK, Australia and Canada all say if something quacks like a duck it must be a duck, New Zealand courts will typically find it to be a duck also.
Techdirt has not posted any stories submitted by kiwirob.
(untitled comment)
When multi-billion dollar companies can buy legislation for a a few $10,000 why wouldn't they.
It would be foolish of them not too!
Re: Re: Re:
The exclusive rights obtained by Mike are limited in nature by U.S. Code § 107. Whilst the copyright may be said to be "exclusive" the reality is there are limitations to the rights granted to the copyright holder. As Fair Use is legally defined as "no an infringement of copyright" the exclusive rights held by the owner have no control over a 3rd party wishing to engage in any appropriate Fair Use activity.
You are attempting to grant powers to copyright holders that they never legally had in the first place.
Assuming that Mike's work is copyrighted, then the default is that others have the right to Fair Use of his work without his permission. Mike obtained limited exclusive rights in it the moment he fixed it in a tangible medium. Mike was never granted the right to limit others Fair Use of his work. I do not need to be excused to make Fair Use of Mike's work because Mike was never granted legal rights to limited Fair Use in the first place, Section 106 in granting exclusive rights does so subject to sections 107 through 122. Fair Use restricted the rights Mike has over his work and grants the Right of third parties to do what ever they like with Mike's work within the parameters of U.S. Code § 107. Before Mike got his exclusive rights in Section 106 the legislation already limited the nature of those rights with the contents of Sections 107 through 122, which is a pretty big list of things!!
US Code § 106 . Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
U.S. Code § 107 - Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Perspective
Virtually all western governments are talking it upon themselves to invade personal privacy and erode civil liberties to protect the population from the rather minuscule actuarial risk of death or injury from terrorism. These same governments need to equally apply the newly acquired powers for alternative preventable risks of death and injury.
Based on the additional powers governments are granting themselves "because terrorism" there needs to be similar invasions of privacy and liberties "because heart disease". It is entirely appropriate for governments to start inspecting the fridges of citizens for harmful foods that may lead to preventable death and injury. The risk of preventable death and injury from heart disease is substantial. In 2012 there where 9,286 deaths from heart attacks in Australia while there where 0 deaths from terrorist attacks.
It has been determined, by the powers that be, that the risk of terrorism justifies sweeping changes to peoples privacy for their own protection. These same "powers that be" need to put equal or greater efforts into other avoidable risks of death and injury the people are also exposed to, such as the biggest killer of them all, heart disease cause by bad diet.
No-knock warrants need to be issued for random inspection of peoples refrigerators to hunt down and eradicate foods contributing to the serious and ongoing threat of heart disease. To make matters worse there are parents out their feeding bad foods to innocent children throughout Australia. We need new laws and random refrigerator inspections in peoples homes for the sake of these poor children. For heavens sake we can't delay, this needs to happen for the sake of the children, the poor chubby children.
Re:
240 Obtaining by deception or causing loss by deception
(1)Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—
(a)obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or
(b)in incurring any debt or liability, obtains credit; or
(c)induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or
(d)causes loss to any other person.
(2)In this section, deception means—
(a)a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and
(i)knows that it is false in a material particular; or
(ii)is reckless as to whether it is false in a material particular; or
(b)an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
(c)a fraudulent device, trick, or stratagem used with intent to deceive any person.
Re:
Re: Re: Re:
Without the aiding and abetting criminal copyright infringement the rest of the conspiracy charges disappear but without the conspiracy to commit money laundry and conspiracy to commit racketeering there is no legal basis to extradite from NZ to the USA (direct copyright infringement is not an offence in the extradition treaty between the countries).
Conspiracy to commit copyright infringement I don't think has every been tried before in a prosecution with the Dotcom defence referring to it as 3rd party copyright infringement as a made up law that doesn't exist on the books. The aiding and abetting criminal copyright infringement charges are also a perversion of how aiding and abetting laws have historically been applied and given the laws have never been applied in this way in the past it's virtually impossible to show Dotcom et.al. possessed a criminal mind necessary for the prosecution when they believed the DMCA Safe Harbor provisions protected them form liability.
That is why the DOJ appears to be hell bent on tying up all Dotcom's assets so he can not pay for a suitable legal challenge for the new application of laws the DOJ dreamed up in this case. The NZ courts have taken a more balanced approach and let Dotcom resources to challenge the legal validity of the process to date. This is probably due to the lack of revolving doors between the NZ Court system and the media industries to date ;-)
Re:
Techdirt has not posted any stories submitted by kiwirob.
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