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Content, Writing and Copyright Forum

This 43 message thread spans 2 pages: 43 ( [1] 2 > >     
Lively Discussion About the Nature of a Copyright
Split from Google News http://www.webmasterworld.com/forum3/23962.htm
BigDave




msg:923802
 7:19 pm on May 11, 2004 (gmt 0)

Mod note: BigDave made this post in a Google News discussion at [webmasterworld.com...] and a good deal of interesting (and off topic) copyright discussion resulted.

Many of the contributors to that discussion have been deleted in this one, simply to build a reasonably coherent thread. My apologies to those deleted.

Directories are useful, but they should not be at the top of the SERPs.

As for someone taking your work, I think more publishers need to have a better understanding of copyrights.

The only way that you can "own" your writing is by keeping it a trade secret. Once you publish, the work belongs to the public, but the public grants you restricted exclusive rights.

But the public still retains certain rights, that includes fair use. The public is using works that might have been created by you, but now belongs to the public.

They are not taking from you. In exchange for you publishing your information (which releases it to the public) you were granted some exclusive rights. It is a fair trade. Don't whine about it not being fair as long as they stay within those rights that were retained by the public.

[edited by: DaveAtIFG at 2:13 am (utc) on May 16, 2004]

 

Mikkel Svendsen




msg:923803
 7:54 pm on May 11, 2004 (gmt 0)

>Once you publish, the work belongs to the public

I am sorry, but this is not correct. I am not sure what country you are from but in most of the western world copyrighted material never belong to the public and certanly not just because you published it.

BigDave




msg:923804
 8:27 pm on May 11, 2004 (gmt 0)

Mikkel Svendsen,

I happen to live in the United States, which is about as far wast as you can get. At least in this country, Copyright and patent holders do not "own" their ideas, they own limited exclusive rights to those ideas.

If they in fact owned their ideas as if they were real property, when the rights lapsed, and the work was put in the public domain, that would count as a taking, and they would be due compensation from the government for their property.

You as the copyright holder only "own" certain limited rights to copy and distribute that material. There are entire distribution channels that you do not have any rights to, and in fact, do not require any attribution at all.

A songwriter *does not* own the copy of the song that is stuck in your head. That songwriter has no recourse to your singing that song in your carpool and getting it stuck in someone else's head. That person can sing that song around a private campfire without violating the copyright laws, and you as a songwriter, do not have any ownership of that song in their heads.

But you do still retain rights to that song even if it has traveled through that alternate channel for 20 generations if someone decides to perform it publicly, or write it down and distribute it. Because those rights have been granted exclusively to you.

If you actually owned the material, there would be no need for copyright law to grant you that exclusive right.

Mikkel Svendsen




msg:923805
 10:57 pm on May 11, 2004 (gmt 0)

I hope there are not to many in here that believe BigDave's interpretation of copyright law. Don't. It could end up costing you a lot :)

JuniorOptimizer




msg:923806
 11:42 pm on May 11, 2004 (gmt 0)

In the land of the blind, the One-Eyed man is King.

BigDave




msg:923807
 11:45 pm on May 11, 2004 (gmt 0)

snipped for continuity

# Stowe v. Thomas, 23 F. Cas. 201, 1853
At issue in this case was a translation of Harriet Beacher Stowe's "Uncle Tom's Cabin" which was sold in the United States without the author's permission. The court claimed that once an author "has published his book, and given his thoughts, sentiments, knowledge or discoveries to the world, he can have no longer an exclusive possession of them. Such an appropriation becomes impossible, and is inconsistent with the object of publication. The author's conceptions have become the common property of his readers, who cannot be deprived of the use of them, nor of their right to communicate them to another clothed in their own language, by lecture or by treatise."

There was huge uproar about this decision for 17 years till the copyright act of 1870 included translations in what is covered by copyrights. So the law was changed, but no laws have since been written that dispute that the only thing that copyright owners "own" is the copyright, not the work itself.

If you know of the law or ruling that says otherwise, please let me know.

[edited by: DaveAtIFG at 2:12 am (utc) on May 16, 2004]

Scottish chickadee




msg:923808
 1:21 am on May 12, 2004 (gmt 0)

i cant really offer advice on the initial post but did want to add some info on Uk copyright.

'Who Owns The Copyright On A Piece Of Work
Normally the individual or collective who authored the work will exclusively own the copyright. However, if a work is produced as part of employment then normally the copyright belongs to the person/company who hired the individual. For freelance or commissioned work, copyright will usually belong to the author of the work, unless there is an agreement to the contrary, (i.e. in a contract for service).

Copyright does not subsist in any part of a work which is a copy taken from a previous work. For example, in a piece of music featuring samples from a previous work, the copyright of the samples would still remain with the original author.
Only the owner, or his exclusive licensee can bring proceedings in the courts.

Acts restricted by copyright
It is an offence to perform any of the following acts without the consent of the copyright owner: copy the work, rent, lend or issue copies of the work to the public, perform, broadcast or show the work in public, adapt the work.
The author of a work or director of a copyright film may also have certain moral rights; the right to be identified as the author, right to object to derogatory treatment.

Acts that do not infringe copyright
'Fair dealing is a term used to describe acts which are permitted to a certain degree (normally copies of parts of a work) without infringing copyright, these acts are; Private and research study purposes. Performance, copies or lending for educational purposes. Criticism and news reporting. Incidental inclusion. Copies and lending by librarians. Acts for the purposes of Royal Commissions, statutory enquiries, judicial proceedings and parliamentary purposes. Recording of broadcasts for the purposes of listening to or viewing at a more convenient time, this is known as time shifting. Producing a back up copy for personal use of a computer program. Playing sound recording for a non profit making organisation, club or society. [Profit making organisations and individuals should obtain a licence from the Performing Rights Society.]

lou
xx

Leosghost




msg:923809
 8:35 am on May 12, 2004 (gmt 0)

If you know of the law or ruling that says otherwise, please let me know.

Berne Convention ....
USA signed up to it ...has to abide by it ..fair use use in the USA legaly only covers use by educational establishments .critics and reveiwers...nothing else ....try anything else ..maybe get sued ..certainly lose ...

Big Dave ..I love , respect and have found enlightening your posts on commercial matters and how SEO works ...But please do not post on copyright ..you don't know what you are talking about ..using decisions from the 19 th century which have since been superceded by international treaties signed by your country to "back up" your point is wrong , stupid , and missleads others who read and think that because of your obvious expertise in other areas that you must be talking sense in this one ...
And defending this crap does you a disservice

BigDave




msg:923810
 5:29 pm on May 12, 2004 (gmt 0)

Leosghost,

In the United States, treaties are not laws. You cannot sue in this country for someone violating a treaty, they have to violate a US law. As it stands, that 19th century decision has not been superceded. To comply with a treaty, US law must be ammended, which it has been.

There is no law in the united states that give the creator of a published work ownership of that work. They only get ownership of the copyright on that work.

And as a matter of fact, I have read the Berne Convention, and it only deals with "rights" and ownership of those "rights", now ownership of the work.

As I said before, I invite you to show me specific law that says otherwise. You have not.

You have also mischaracterized what the Berne Convention says about fair use. All it says is:

Article 10

(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon.

Article 10bis

(1) It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire, of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of a breach of this obligation shall be determined by the legislation of the country where protection is claimed.

(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.

In other words, fair use is basically defined by the country you are in.

You can decide that I am wrong, but you have yet to show any evidence to the contrary.

Show me where any of the laws talk about anything other than ownership of rights.

paybacksa




msg:923811
 4:33 am on May 13, 2004 (gmt 0)

If you do not have "plausible deniability" for willful copyright infringement, you will have trouble defending your appropriation of someone elses work for commercial gain.

When you add nothing to it, put ads around it, and don't credit the author, and the author used the content himself commercially (to sell ads) then you have such a situation.

Interpret the phrase "fair use" for yourself.

Leosghost




msg:923812
 8:59 am on May 13, 2004 (gmt 0)

BigDave..
In the United States, treaties are not laws. You cannot sue in this country for someone violating a treaty, they have to violate a US law. As it stands, that 19th century decision has not been superceded. To comply with a treaty, US law must be ammended, which it has been.

Your last line says it ..US law was amended so the treaty stands as the benchmark for US law...

I am a working artist ..what in heavens name makes you think that when I make a sculpture or a picture ..that I am somehow not the "owner" of that artwork ...!

What makes you think that because that "artwork" may be prose or poetry or text ..that you can take it and say "well..you let me see it ( you published it ) ..therefore it's mine " ...!
Which part of "it's stealing" dont you get?

Fair use ...Every piece of what you posted from the convention text ( which BTW you didn't "credit/acknowledge" correctly as per the proceedure decribed in the text ) ..

...Backs me up ..and defeats your own argument!....

Use by comercial organisations is not "Fair use" ..

What the text allows is that the signatory country may locally decide "how much" is fair use ...it does not give the country the option of inclusion of commercial entities amongst those to whom fair use is granted ....

It is not and never has been the intention of the Berne Convention to allow you or anyone else to copy work and then to 'get out" by crediting the owner of the work somewhere on the page ...

I presume by your reasoning it's ok for chinese CD pirates to make millions of copies of Madonna's CD's ..providing they say that the "original" was made by Madonna....?

In music ..one may "quote" upto 4 bars ..over 4 bars one pays a "royalty" to the composer ...This happens in the USA ....

As someone who has lived in and loves the USA and it's people I tell you again ..You do a disservice to The USA and it's people when you give the impression that Americans "tweak" and "reinterpret" laws and treaties in order to steal from others ...and are apparently proud to do so ..!

Mikkel Svendsen




msg:923813
 5:12 pm on May 13, 2004 (gmt 0)

Leosghost, I totally agree! I have a 18 year background in music production and publishing and I have never heard a more absurd interpretation of copyright laws than what BigDave present.

The only detail I do not agree with you on is the "4 bar rule" in music - it is an old roumor that is not entirely correct. If you entire song (or the most important part of it) is only 4 bars (which some simple tunes are) you are not allowed to use that much. A "quote" has to be only a small part of the entire work of art to fall under that rule. Also, copyright holders have, in general, every right to refuse any kind of commercial use or manipulation of their work. There is no exception on this rule for search engines. The fact that search engines send us traffic dose not change it.

I used to produce a lot of Hip-Hop and Dance music and I tell you it's a legal nightmare to clear samples! It is far from as simple as BigDave say it is.

I really hope noone follow his advise on this subject as it is very clear to me that he dosent have a clue about how it works.

BigDave




msg:923814
 5:54 pm on May 13, 2004 (gmt 0)

Leosghost,

In the case of a painting or sculpture, there is a physical item for you to own under property law. You can also sell that physical property without ever giving up any of your rights under copyright.

I think you fail to realize the whole value and point to copyright.

Copyright gives you value beyond that of physical ownership.

I can make a copy of the Mona Lisa and sell it without getting anyone's permission, or paying anyone.

I cannot reproduce (for any sort of covered distribution) any of your paintings without your permission (even if I bought the original). This is not because you "own" your painting. If you are like most artists, you "own" few of your own works. It is because you have been granted a "right" that goes beyond simple ownership of a physical work.

If I go to a showing of your work, I am allowed to take a picture of your sculptures. They are a derivative work, acopy, but you have no control over what I do with them *until* it enters the realm of what is "protected" by your "rights".

By the way, given US laws, legal documents are not covered by copyright. No proper attribution is necessary. The Berne Convention allows for the member nations to make that sort of choice. You might try reading it sometime.

The US laws do in fact meet the requirements to be a member nation under Berne. But you semm to have a misunderstanding of that document. I suggest you read it sometime, and maybe point out to me where it refers to ownership, instead of "rights" or "protection".

Really, I have no idea why publishers get so hung up on worrying about owning the actual work when they are trading it for something that makes it a lot more commercially viable.

I suggest that you go speak to your IP lawyer if copyright law gives you actual ownership of a writing, or just a limited monopoly on its use for a specific amount of time. Ask him to back it up with law.

What you might get is a reply saying that you "effectively own" it. But what it really is is a lifetime + 50 year lease. You can pretend that you own it, because by the time the lease is called due, you are long since dead. But you still do not own it. Ask him where the law grants you actual ownership of an idea.

Just cite the law as it applies to me and I will gladly conceed the issue. Where is the law that talks of owning song, instead of owning the rights to the song.

For that matter, cite a law in just about any country. I only care about US law, but I would be surprised if you can find any copyright laws written in such a way that it refers to anything more than rights.

BigDave




msg:923815
 5:48 pm on May 15, 2004 (gmt 0)

I started out this sidetrack to the thread when I posted:

I think more publishers need to have a better understanding of copyrights.

Then several publishers decided that I have no idea what I was talking about. And that people should ignore me, because believing me would be dangerous.

Well, I decided to follow my own advice, and have my position verified by a couple of attorneys. I just heard back from Professor Lawrence Lessig [lessig.org] after explaining my position:

Your view is both correct and supported by some of the best of our tradition.

<added>* this quote was not in relation to this thread, but in relation to an outline of my position on the issue. It was substantially the same, but it is possible that he might have issues with a some part of what I wrote here. I attempted to cover everything the same way.

I also thank him for his honest feedback on the issue.</added>

So, I go back to my original statement, that I really think more publishers should have a better idea of what copyright really is. If you think about copyright in the way that I have outlined, you will have a much better appreciation for how the law works and why it works the way that it does.

snipped

[edited by: DaveAtIFG at 2:15 am (utc) on May 16, 2004]
[edit reason] Removed off topic remarks [/edit]

Leosghost




msg:923816
 6:14 pm on May 15, 2004 (gmt 0)

If I go to a showing of your work, I am allowed to take a picture of your sculptures.

No you are not ...and unless you are really, really "big" Dave ..your feet wouldn't touch the floor in either my showings or any museum or gallery in The USA or elswhere ...galleries and artists do not allow people to steal photos of exhibits ....
Your "expert" is one of many who would not go to jail on your behalf if you followed their advice ...you might take a look at the thread that webwork ( a lawyer in the US and amember here started a few days ago ) ....
And now I'll stop feeding the troll ..before I become justifiably abusive ...
What I had assumed to be your "ignorance" would be acceptable ...your obvious lack of ethics is not ...

Jenstar




msg:923817
 6:54 pm on May 15, 2004 (gmt 0)

FWIW, copyright infringement is a suspendable offense for AdSense publishers.

AdSense terms 13(ii):
You further represent and warrant that each Site and any material displayed therein:... (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property... (emphasis mine).

I have seen a publisher suspended after the victim of the copyright infringement filed a DMCA complaint to Google.

There is a fine line, however, if each publisher is protected under fair use, or if it is blatant infringement.

BigDave




msg:923818
 8:09 pm on May 15, 2004 (gmt 0)

Leoghost,

That is private property rights of the gallery or museum, the restricting of cameras. It is not the rights of you as the creator of the art. I would get charged with all sorts of things, along the lines of tresspassing. But there would be no copyright charges.

If someone buys your art, and puts it in their living room, You still maintain your copyright rights, but you have no control over anyone taking pictures there. It is the right of the property owner.

If a picture of their living room with your sculpture incidentally in it is published in architectural digest, you are owed nothing. If a photograph is only of your painting, then you are probably due compensation if there are no other fair use considerations involved.

And just for your entertainment value, I have taken pictures in museums and galleries where it has been permitted. I have never distributed any of them, therefore I have not violated either property rights or copyright. Nor have I acted in an unethical manner.

"Fair use" is just as the name implies. It is fair. You have been granted copyright in exchange for it.

If you wish to keep total ownership of your works, keep them as trade secret. That is the deal you have made in exchange for the copyright. You accepted the terms by publishing. Is it not unethical to want copyright protection without "paying" for it?

Leosghost




msg:923819
 9:44 pm on May 15, 2004 (gmt 0)

The last post here addressed to myself and by implication also to all the others who rely on copyright law (and the respect thereof ) to protect their works and in consequence their livelyhood is so full of legal inaccuracies , halftruths , assumptions and even basic ignorance of the meaning of the English language that under normal cicumstances I would not bother to reply ..

snipped

However for the benefit of those who may be reading this thread and who think that the method of naming "us" as " preferred" or "senior" etc confers some kind of status to our comments on a particular subject ..it doesnt ..it is based on the number of posts we made ..no more ...or less than that ..

Copyright law ...prohibits the making of copies without permission in writing from the copyright owner ..
Making a copy without this written permission is illegal ..wether or not the intention is to distribute or publish it is not considered when the judge decides if the law has been broken ( the distribution /publishing etc may be important to the damages ..not to the act law breaking itself ) ...

Thus photographing a painting or sculpture which is on exhibition in a gallery or in a private collection or residence is illegal unless you have a written authorisation from the artist or the copyright holder to do so ..the permission of the gallery or the owner of the work of art is not sufficient ...

As Webwork ( a lawyer and highly respected member here ) points out in another thread here ...you will probably get sued and you will lose ..

The only possible exception to this is if you sit in front of the picture or sculpture and create your own painting or sculpture using paint or clay etc while looking at the first..this is the method still used in France in particular to "teach" students the "methods of the masters "...it is in my opinion of doubtfull benefit and I personally have never encouraged my students to do so ....some museums allow this ..some do not ...this form of "copying" is not considerd by legal authorities to be in breach of the law ...

However applying the same proceedure to literature , music etc is plagiarism and when it is confirmed results in prosecution , fines , expulsion from college etc ..rightly so ...

With regard to fair use ..you will notice in the extracts from the "Berne Conventions" ( which have BTW been constantly ammended to include IT etc ) which the previous poster quoted and which ( with apologies to Brett and the mods for the bandwidth ) I do so again here below ....all references to fair use are related to newspapers , teaching , broadcasters , critics etc ...they are not intended to ..and do not apply to commercial use as "padding" in 3rd party websites , books or magazines by unrecognised people masquerading as publishers or journalists ....

These provisions were designed so as to allow the "4th estate" to function ...not to fill google cache or the webpages of people with too little creativity to produce their own copy ....it is not because large organistions such as google have uptil now not faced succesfull prosecution that they are not breaking the law ..their time will come ....

Microsoft were eventually tried and prosecuted for antitrust ...the years leading upto the verdict were taken into account in deciding the punishment ....

The quotes from "Berne" merit carefull reading by those who understand the meaning of English or their own language ...some here merely think they do ...

"publication" does not mean "your private website"...
nor the inside of your "private photo albums"..showing these things to a larger public and claiming fair use as though you are the NY Times or a UCLA researcher doing a book reveiw or aDoctorate thesis or putting yourself on the level of the art critic of The Daily Herald will not be considered a fair use reason to photograph sculptures without the written permision of the artist ...it is not because a law is difficult to enforce that it is not the law ...

If I sell you a sculpture ..you may not photograph that sculpture or / and send or sell the photo to anyone without my permission nor may you give permission to someone else to take the photo etc etc ....sounds crazy? ..sorry its the law ...( Not at all sorry really ..it's how I protect my means of putting food on my kid's table )...

Article 10
(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon.

Article 10bis

(1) It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire, of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of a breach of this obligation shall be determined by the legislation of the country where protection is claimed.

(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.



The last paragraph posted
If you wish to keep total ownership of your works, keep them as trade secret. That is the deal you have made in exchange for the copyright. You accepted the terms by publishing. Is it not unethical to want copyright protection without "paying" for it?

was just outright ridiculous ..however I would invite anyone who has read this thread upto here and is at anytime in the future prosecuted for infringement of copyright or intellectual property to subpoena the poster to appear and answer for incitement to commit an illegal act ( or whatever you call it in your juristiction )....

Webwork's thread is here [webmasterworld.com...]
Anyone Think That He Doesn't Know What He's taking About?.....
( I don't have much time for Lawyers as a rule ...But He is THE MAN! )

mods? ..can you maybe merge these threads and so Stop the missinformation going on here ...I know that technically its a nightmare to do : )

[edited by: DaveAtIFG at 1:32 am (utc) on May 16, 2004]
[edit reason] Deleted off topic comments [/edit]

Webwork




msg:923820
 3:50 am on May 16, 2004 (gmt 0)

BigDave, I skimmed the posts here, so maybe I missed it. Would you please post a citation to the U.S. Code section that contains the language you employ, and/or case law citation(s) to the latest U.S. Supreme Court case(s) that employ the verbiage set forth centrally in your posts?

Since you are obviously on top of these issues you ought to be able to save me the time of digging out the Supreme Court cases. I'd like to brush up a bit on case law before I say anything on the subject you raised. When I'm challenged I prefer to quote directly from case law, book and page number. That way, if people have an issue with whatever I assert, I can tell 'em to "Take it up with Antonin Scalia".

Thanks

Webwork, Esq.

ccDan




msg:923821
 4:35 am on May 16, 2004 (gmt 0)

Now I am curious.

BigDave says that Leosghost does not own his own painting, poem, whatever, and only owns certain rights to it. And, that the actual art, in exchange for copyright protection, belongs to the public.

So, if Leosghost destroys his painting, or burns his poem after a public reading of it, or performs a piece of original music once and never again, why is he not held liable for destruction of public property?

I own my desk. If I want to destroy it, I can and I will not have to reimburse any one for its destruction. It's mine.

On the other hand, if I go into a public building and destroy a desk, I will have to reimburse the public for the cost of that desk (plus face other charges). That's because the desk belongs to the public.

If Leosghost can recite a poem at a public reading (which would constitute publication) and then destroy the poem, I am not aware of a precedent case where he would be required to reimburse the public for destruction of public property. That being the case, I would say that Leosghost owns his poem.

My interpretation is that copyright law may give him a limited term of ownership, but it is ownership nonetheless.

BigDave




msg:923822
 6:22 am on May 16, 2004 (gmt 0)

The painting itself is a piece of property. It is covered under real property laws. Just the same as your desk.

A printout of a poem is also real property. you may do with it what you will.

Your real property rights do not protect you from someone transcribing that poem as you read it and submitting it to poems monthly, or even claiming it as their own.

You can write a song, but once people start singing it, you do not own every copy. You do not own the brain cells of the listener that has your song annoyingly stuck in their head. Yet you still own the "rights" to that song.

You have no right to keep that person from "copying" that song by singing it in the shower, or even singing it in the carpool in front of other people while driving to work.

The right you definitely do have is that they do not have the right to perform that song in public, or distribute a written version of it.

Then there is a huge grey area of the law that you must be careful when treading.

Can you make a recording of that song when you hear it on the radio? Yes, you can according to the betamax decision. You can also show it privately to your friends. You cannot use it for public performance.

The "owners" of the songs try to disagree, but aparently they do not own the "right" to stop you from making that copy.

As a copyright owner, you are only entitled to those rights specifically granted you.

If you own one of the physical copies of you have real property rights on that specific copy. Owning the real property copy does not give you any of the copyright rights. Everyone is entitled to the fair use rights, whether or not the copyright owner agrees that you should have those rights.

Once you publish something, you have no way of stopping it from going into the public domain when your copyright expires.

Even if you control all the copies and destroy them, it still legally enters the public domain, even though it no longer exists. If someone has an copy that you did not know about, it still goes into the public domain. You will not be forced to release your real copy of that work, but that is real property law, not copyright law.

BigDave




msg:923823
 7:01 am on May 16, 2004 (gmt 0)

Webwork,

Which part of my posts do you want me to quote law on?

Certainly you are not questioning my assertion that the Berne Convention is not applicable copyright law in the US, only US law is applicable.

Do you want me to argue that copyright is not the same as real property ownership? It will be hard to find that case law, because I don't think the lawsuit would get past summary judgement since you would be filing it under the wrong set of laws. See how far you get bring title 17 charges against someone for skateboarding on the sidewalk. It just don't work that way.

Or should I show that fair use is in fact a very murky area of the law? Or that the monetary value of the use is important in deciding if it is Fair Use?

By the way, in copyright cases, if you are actually looking for significant monetary damages instead of just stopping the infringement, you would be much better served by sending the C&D before filing the lawsuit. You should also register your copyrights before you file. Sending the C&D goes a long way to proving willful violation. The judges in copyright cases give you a lot more if you give the defendant the chance to mitigate the damages and they do not.

On the other hand, if your only goal is to stop the infringement and collect a few hundred bucks, filing a lawsuit will likely get their attention quicker than a C&D. From the cases I have followed, it seems that even attorneys fees are hard to collect without proving willful infringement.

Marcia




msg:923824
 7:26 am on May 16, 2004 (gmt 0)

Nothing goes into the public domain unless it's voluntarily put there by the copyright owner, or after the period of time expires. Just for reference, here's the official basic reference from the U. S. Copyright Office

[copyright.gov...]

It's very specific about author and ownership. About the only point that's potentially debatable is that of what constitutes "fair use," for which I believe there are 4 tests, according to Chilling Effects

[chillingeffects.org...]

The list also gives four guiding factors courts will consider in deciding whether a use is fair or not. These factors are

1. the purpose and character of the use,

2. the nature of the copyrighted work,

3. the amount and substantiality of the portion used, and

4. the effect of the use on the potential market for or value of the copyrighted work.


BigDave




msg:923825
 8:28 am on May 16, 2004 (gmt 0)

Nothing goes into the public domain unless it's voluntarily put there by the copyright owner, or after the period of time expires.

Correct. In other words *everything* published goes into the public domain when the copyright expires. That has never been a point of contention.

Just for reference, here's the official basic reference from the U. S. Copyright Office

[copyright.gov...]

It's very specific about author and ownership.

Oh yes, there are some choice quotes in there. You might notice that it always is referring to the "owner of the copyright" as opposed to the "owner of the work".

Here is a choice quote from that page

Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.

It makes a very clear distinction between ownership of copyrighted personal property and the copyright itself.

Here is another:

Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business. For information about relevant state laws, consult an attorney.

Copyright is a personal property right, but the work itself is not personal property during the duration of the copyright.

If it was, then the congress would no longer have the authority to grant copyrights, as the expiration of copyright and subsequent moving of the work into the public domain, would be an eminent domain taking under the fifth amendment. The fifth amendment, having happened after article one, would override article one and make our copyright and patent systems illegal.

You could also be charged with all sorts of personal property violations, such as grand theft and possession of stolen property. This simply does not happen because the personal property is the ownership of the copyright, not what the copyright protects.

Here is another bit that helps to make it clear. Notice the wording:
The owner of exclusive right(s). Under the law, any of the exclusive rights that make up a copyright and any subdivision of them can be transferred and owned separately, even though the transfer may be limited in time or place of effect. The term "copyright owner" with respect to any one of the exclusive rights contained in a copyright refers to the owner of that particular right. Any owner of an exclusive right may apply for registration of a claim in the work.

You own "rights" not the actual work.

About the only point that's potentially debatable is that of what constitutes "fair use," for which I believe there are 4 tests, according to Chilling Effects

There are four tests that are spelled out in title 17, but it is in fact more involved than that. There is also a lot of case law, and additional acts of congress such as the DMCA, the Audio Home Recording Act, the Betamax decision, etc.

There are also the uses that are so trivial that you could argue de minimis and if they agree, they will not even bother doing a fair use analysis.

In fact, interpretation of fair use is such a mess, that when they tried to come up with some guidelines for it to make it clear, they never succeeded. I seem to recall mention that very few of their examples, when put before a group of judges, were able to get over 75% agreement, much less 100%.

While there is such a thing as fair use for commercial purposes, you better think long and hard about it, and talk to a few copyright lawyers, before venturing into that area.

Webwork




msg:923826
 11:18 pm on May 16, 2004 (gmt 0)

Here's the rub BigDave: In the court's of the United States the ultimate authority on the subject of copyright law is the U.S. Supreme Court, not BigDave, not even the clerks in the Copyright Office.

The people that I know who are real authorities on any given body of law can quote cases and precise verbiage from cases without even looking them up. Also, they quote the opinions of the court, not secondary source material that interprets the original opinions. That way you know what is law (the reported cases) and what is interpretation (all the learned article interpreting the reported cases - it's quite an industry).

What people need to appreciate is that BigDave is authoritative only to the degree that he is quoting directly from what the Supreme Court has written. That's the law. What the U.S. Congress enacts. That's the law. This whole thread could have been reducted to a few direct quotes from reported Supreme Court cases and Acts of Congress. Then it's res ipsa loquitor time: The thing speaks for itself. Debate tends to seep in where no one is able to quote the source material. Quote the source material and the debate then turns from "This is the law! No it isn't! To "what a bunch of buffoons the Supreme Court is."

So, BigDave, I'd appreciate every name drop you can make for what you've been telling people 'is the law'. The way that goes in the practice of law is that you cite the case and then you quote directly from the written opinion of the court.

I'd really appreciate you going the extra step to demonstrate that your authority - the authority with which you speak - isn't 'the law according to BigDave' but it what we call "black letter law", the law that you can - to borrow from Ogden Nash - "you can look it up".

Without reference to the underpining authoritative material all the erudition is just so much hot air.

Kinda like the guy who swears U.S. citizens don't have to pay taxes.

BigDave




msg:923827
 11:37 pm on May 16, 2004 (gmt 0)

Well, please tell me what part you disagree with and I will see what I can find. I already asked you that, but you chose to ignore it.

mifi601




msg:923828
 11:46 pm on May 16, 2004 (gmt 0)

I have been a visual artist for more than 20 years. During that time I have had my share of dealing with copyright and what's included and what not. I had lawyers write contracts with pages and pages of what I own and what my 'buyers' own etc. etc.

My gut feeling is, BigDave is correct!

paybacksa




msg:923829
 2:04 am on May 17, 2004 (gmt 0)

BigDave is as correct as any I have read.

I suspect many people don't spend enough time on the minutia of what he says, to understand the specifics. I also wish more people would read Lessig's work.

Sure, case law would be nice. However I doubt there is very much available for these almost theoretical points, because in an actual case lawyers would shift emphasis to the other areas (where they felt they could win) rather than try and argue aorund these points.

That's pat of the tragedy of the DMCA... it's so poorly written it wont stand up to reason. It's more about bullying via legislation than protecting rights.

Webwork




msg:923830
 2:10 am on May 17, 2004 (gmt 0)

BigDave, did you graduate from an ABA accredited law school or a law school accredited by a similar accrediting agency in your country, and, and if so, which law school and when, and to which jurisdction(s) are you currently admitted to the practice of law?

If you don't mind perhaps you could start by answering that specific question first.

This isn't to say that you need a law degree or years of experience in court to offer a legal opinion, just like you could perform brain surgery on yourself without a license. However, when you speak here you are opertating on someone else's brain, you see, and - without getting into detail - it's my sense that you are operating without a license.

OBTW, you can also pick what you feel to be the 3 major points that you've presented in this thread and, chosing them you can then set down the citations to the Supreme Court cases and the verbiage in the Supreme Court Reports that you rely upon to fashion your major points here.

paybacksa




msg:923831
 3:21 am on May 17, 2004 (gmt 0)

C'mon, do we really need the "operating without a license" bit here? Do we really want every thread to be preceded with "I am not a lawyer" disclaimer?

I have to say, WebWork, when I saw you start that bit I immediately slashed a bunch o' points off your credibility score sheet. After all, to pull that one is to admit you don't have much else to go on, no?

This 43 message thread spans 2 pages: 43 ( [1] 2 > >
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