Studies aren't really needed, access is key. However, the argument that it's all about stifling competition rings hollow. The infringement statutory penalties are commercial in nature. To stop businesses from using another business's product to profit. They have been misapplied to individuals for years. It is hard to compete with a business that takes your product and profits from it or undercuts your ability to sell your product by offering it at a discounted rate before you have a chance to bring it to market by breaking the law. That is the purpose of statutory damages for infringement. Not to punish the teenager or college ripping games or music in his room.
The copyright issue is clear. The image is copyright protected. The use of it without permission or a license is infringement. An argument can be made for fair use but is putting words over the picture truly transformative? Is it commentary? I'd argue neither. It also can be argued the market for this photo has been damaged by the political use of it. I am seeing infringement and fair use failing in this instance.
A magazine takes photos they are going to publish. Someone leaks the photos to a site before publication. The magazine paid the photographer, the model, the set staff, location costs, etc. The magazine notifies the site they are linking to infringing material. The site ignores the notification, actually mocking the magazine. The magazine gets the photos taken down from one of the places the photos are hosted. The site knowingly and purposely links to the photos again and again from other hosts. The magazine sues the site for infringement and you don't think this is copyright infringement? Because it's a link? The site is making money by linking to the known infringing material over and over and you don't think that should be a factor for liability? Viewing this ruling in the context of the case,I don't understand your logic.
4.the effect of the use upon the potential market for or value of the copyrighted work.
I think the creation of a derivative work, using a budget inferior to a major motion picture studio, using lessor know actors and sub par special effects could easily dilute and or turn off a new fan of this multi million dollar franchise. Selling unlicensed merchandise, I'm sure, did not sway CBS/Paramount into viewing this remotely as fair use.
"The Constitution grants Congress the power to enact copyright laws. It does not obligate them to do so, and aside from a few broad prerequisites, doesn't require Congress to adhere to any particular formula, or to exercise the full scope of its authority."
I will, again, ignore reference to reading comprehension and address your argument.
"It does not obligate them to do so, and aside from a few broad prerequisites, doesn't require Congress to adhere to any particular formula.."
No, it states why Congress should "To promote the Progress of Science and useful Arts" and the mechanism to do so "by securing for limited Times to Authors and Inventors the 'exclusive right' to their respective Writings and Discoveries." In the same section, directly preceding, Congress is granted the power "to establish post offices and post roads" Directly following,congress is granted the power "To constitute tribunals inferior to the Supreme Court," By your rationale, Congress was not obligated to establish the post office nor tribunals inferior to the supreme court. I do not agree and trust, after much debate, items in the Constitution were placed there purposely.
"First, it's been longer than that. Your math skills are bad too. Second, there have been no fundamental changes requiring a reassessment of copyright policy."
First:Copyright under the Berne Convention must be automatic; it is prohibited to require formal registration 1886.(139 years, forgive me) Second: The Copyright Act saw major revisions in 1909,1976, and 1998. Congress do not agree with your assessment.
Your statutory damages argument has been addressed by another reader.
"Leverage" is hardly a good reason for statutory damages -- especially when no such thing exists in most other torts.
Perhaps, but deterrence is the main purpose of statutory damages. The statutory damages are a civil equivalent to minimum/maximum penalties found in criminal law with the assumption the entity knew what it was doing when it decided to infringe. In addition, they are only available to registered works.
"I believe you have misread the Constitution. The Constitution does not "afford protections" to you."
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the 'exclusive right' to their respective Writings and Discoveries"
This "exclusive right" has been enumerated in 17 USCA section 106 by congress to include, among others, the right to reproduce copies and prepare derivative works. This exclusive right granted by the Constitution, as defined by congress, affords protection against others attempting to exercise these enumerated rights. Registration is necessary for statutory damages, However, upon creation, congress has deemed a copyright protection automatic and no registration necessary. To allow statutory damages only to registered works would seem an acknowledgement of your position. However, to suggest going back to copyright methodology from the eighteen hundreds would seem to ignorant of the changes in society that have occurred in the last century and a half.
All who deal with copyright on a daily basis feel changes are necessary, but it is always"how" that's the sticking point.
1) Statutory damages are not inherently bad, just mis applied. They do provide leverage in negotiations between parties and are a deterrent to commercial exploitation of a work but generally should not be applied to small entities and private citizens. The small entities and individuals are may not be acting maliciously and generally are not aware of the infringement. i.e. "I didn't know I couldn't do that."or" I thought it was fair use. 2) Fair use is a foundation of our system and should not be stifled. The use really needs to be analysed and The Fair use factors provide for it. Perhaps a tiered system of use and licensing would make the process a lot less maddening and provide for a more streamlined system as opposed to the case by case basis where Fair use is an affirmative defense. 3) Where are the teeth to 512f? It is written into the statute but never enforced and as a result abuse runs rampant. 4) In theory there would be no deterrent to circumventing if there were no penalties but in some applications (You can't use other coffee pods in our coffe maker) it is clear the anti-competitive effect of the provision is detrimental. 5) Orphaned works are a problem and using them should be easier. I am against having to jump through hoops and spend money to be afforded protections written in the Constitution. They are currently and should be automatic. It could also set up a situation where copyright protection is lost because a company is waiting to exploit works' of others by having the resources to monitor the failure of others to re-register. 6) At a recent panel, the office acknowledged the need to modernize. It would better serve creators and right's holders to have the office more efficient, with less gray area. But more importantly, it would better serve the public. That is the Constitutional purpose of copyright and this should never be forgotten.
"It's not about the money." "It's never been about the money." "It's about the competition and control."
No, it's about money. To even suggest the MPAA's actions in any regard are motivated by anything other than Movie studios' ability and attempts to maximize profits is nonsensical. Movies are cost intensive undertakings at the major studio level. Regardless if one agrees with the accounting process or not actors, directors,writers and all associated with producing a film get paid. Many involved in motion picture work are unionized and must be paid a set per hour rate. It has always been about the money.
The whole design and purpose of the Aurous is an interface and distribute copyright infringing material. By the Grokster logic, if that is the sole purpose then they are inducing copyright infringement.
Hasbro balked on a fighting game based on a show targeted to kids 2-11? How is this bad or surprising? You can paint this as some kind of travesty but it isn't. Hasbro wasn't approached about licensing and the developers could have saved some scratch by doing what they did in the end, change the characters a little.
I suppose this is a bummer but TCPI is well within their rights. I think a cease and desist letter would have been a tad more charitable way to stop the use of the copyrighted character's images. There was no licensing involved and you have to pay to play I guess is the message here. Or They just didn't want their children's brand associated with a party at a bar with drinks named after it's characters. Definitely not a fan friendly move.
Actually they did.This suit was filed under a copyright claim and not trademark. The use of copyrighted images (Pokemon characters) in advertisements without licensing is copyright infringement.
There are many purposes for the permissions asked. However, because a company states a beneficial reason for a certain permission does not mean there can not be another use. You are indeed giving them permission for exactly what is stated. How they will use the information is strictly their "word." This is the same stink that occurred with Facebook messenger's permissions and Facebook said they would not use the permissions granted in a nefarious way and there were many legitimate reasons for them. Why the about face now? and why for Spotify?
Speeding, hit and runs, armed robbery, murder... that's just a few examples of cases where a crime is 'facilitated' by the product of a business, yet when someone speeds, do we blame the car manufacturer?
I think a more apt analogy would be you are the bartender/owner of a bar where people meet then plan and carryout hit and runs, armed robbery and murder. You as the bartender/owner hear them planning these crimes. There are some legitimate patrons, but word on the street is if you wanna find some people to do these crimes, then your bar is the place to go. You as the bartender are against illegality,so you say, but you don't do anything besides say you're against these crimes.... wink wink. Obviously copyright infringement is not on the same level as the crimes mentioned but I think you get my meaning.
There are plenty of legit uses for bit torrent. In addition,the law provides finding infringing content is definitely not their job. I am more struck as to what would you have the RIAA do? There is nothing inherently wrong with a business based on selling music, or film etc. I have not agreed with many of the tactics used by many copyright holders in the past. However, if a certain behavior is illegal, and said illegal behavior frequently facilitated using another business, that claims they don't condone illegal activity, to take their statement at face value would suggest they might do something.....
I chose photograph specifically for the lack of transformative element. Generally, use of a photo is exactly as the photo was taken. I don't believe a court likely taking a photo and placing it within another photo or ad transformative. Courts have noted taking a photo and placing within a book as transformative. Bill Graham Archives v. Dorling Kindersley, Ltd.But I think this would be different. In any event, we can agree to disagree. I think Perfect 10 a bit different because it could be argued a thumbnail pic has less resolution and is "kinda" transformative, where as,in my example and yours, the photo would be unadulterated.
I chose a photograph specifically because the photographer is the rights holder and the photo was used without permission and there would be no transformative element. Moral rights do not figure into the equation because the politician did not license the use. I am not fond of moral rights and was not trying to imply after a sale the creator has any say in what is done with the creation. Interesting you brought up compulsory licensing because the license is contingent in not changing the song. So the compulsory license almost gives a moral bend because you don't have to get permission from the author but you can't really change it, in fact, in a way, controlling the song.
The Fair use test includes an evaluation of whether the original creator's economic efforts are being stymied and perhaps I should have been more clear. I think many ignore the literal meaning of copyright is the "right" to "copy." The control of derivative works etc. Whether there is a philosophical disagreement with the enumerated rights given is personal but as the statute is written, if a creator doesn't want their art used by someone or for something they are intrinsically opposed, regardless if they are economically harmed is their right. I think a perfect example, the photographer who is against discrimination based on sexual orientation and their photo being is used in a political ad by a candidate opposing gay marriage. If fair use was only an analysis of whether the photographer was being prevented from making money, this outcome could happen all the time with no recourse for the photographer. Thankfully, this is not the case.
Re:
The law and photographers do not agree with you.
Studies aren't really needed, access is key. However, the argument that it's all about stifling competition rings hollow. The infringement statutory penalties are commercial in nature. To stop businesses from using another business's product to profit. They have been misapplied to individuals for years. It is hard to compete with a business that takes your product and profits from it or undercuts your ability to sell your product by offering it at a discounted rate before you have a chance to bring it to market by breaking the law. That is the purpose of statutory damages for infringement. Not to punish the teenager or college ripping games or music in his room.
The copyright issue is clear. The image is copyright protected. The use of it without permission or a license is infringement. An argument can be made for fair use but is putting words over the picture truly transformative? Is it commentary? I'd argue neither. It also can be argued the market for this photo has been damaged by the political use of it. I am seeing infringement and fair use failing in this instance.
Sooo...
A magazine takes photos they are going to publish. Someone leaks the photos to a site before publication. The magazine paid the photographer, the model, the set staff, location costs, etc. The magazine notifies the site they are linking to infringing material. The site ignores the notification, actually mocking the magazine. The magazine gets the photos taken down from one of the places the photos are hosted. The site knowingly and purposely links to the photos again and again from other hosts. The magazine sues the site for infringement and you don't think this is copyright infringement? Because it's a link? The site is making money by linking to the known infringing material over and over and you don't think that should be a factor for liability? Viewing this ruling in the context of the case,I don't understand your logic.
4.the effect of the use upon the potential market for or value of the copyrighted work.
I think the creation of a derivative work, using a budget inferior to a major motion picture studio, using lessor know actors and sub par special effects could easily dilute and or turn off a new fan of this multi million dollar franchise. Selling unlicensed merchandise, I'm sure, did not sway CBS/Paramount into viewing this remotely as fair use.
Re: Re: Re: Re:
"The Constitution grants Congress the power to enact copyright laws. It does not obligate them to do so, and aside from a few broad prerequisites, doesn't require Congress to adhere to any particular formula, or to exercise the full scope of its authority."
I will, again, ignore reference to reading comprehension and address your argument.
"It does not obligate them to do so, and aside from a few broad prerequisites, doesn't require Congress to adhere to any particular formula.."
No, it states why Congress should "To promote the Progress of Science and useful Arts" and the mechanism to do so "by securing for limited Times to Authors and Inventors the 'exclusive right' to their respective Writings and Discoveries." In the same section, directly preceding, Congress is granted the power "to establish post offices and post roads" Directly following,congress is granted the power "To constitute tribunals inferior to the Supreme Court," By your rationale, Congress was not obligated to establish the post office nor tribunals inferior to the supreme court. I do not agree and trust, after much debate, items in the Constitution were placed there purposely.
"First, it's been longer than that. Your math skills are bad too. Second, there have been no fundamental changes requiring a reassessment of copyright policy."
First:Copyright under the Berne Convention must be automatic; it is prohibited to require formal registration 1886.(139 years, forgive me)
Second: The Copyright Act saw major revisions in 1909,1976, and 1998. Congress do not agree with your assessment.
Your statutory damages argument has been addressed by another reader.
Re: Re:
"Leverage" is hardly a good reason for statutory damages -- especially when no such thing exists in most other torts.
Perhaps, but deterrence is the main purpose of statutory damages. The statutory damages are a civil equivalent to minimum/maximum penalties found in criminal law with the assumption the entity knew what it was doing when it decided to infringe. In addition, they are only available to registered works.
"I believe you have misread the Constitution. The Constitution does not "afford protections" to you."
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the 'exclusive right' to their respective Writings and Discoveries"
This "exclusive right" has been enumerated in 17 USCA section 106 by congress to include, among others, the right to reproduce copies and prepare derivative works. This exclusive right granted by the Constitution, as defined by congress, affords protection against others attempting to exercise these enumerated rights. Registration is necessary for statutory damages, However, upon creation, congress has deemed a copyright protection automatic and no registration necessary. To allow statutory damages only to registered works would seem an acknowledgement of your position. However, to suggest going back to copyright methodology from the eighteen hundreds would seem to ignorant of the changes in society that have occurred in the last century and a half.
All who deal with copyright on a daily basis feel changes are necessary, but it is always"how" that's the sticking point.
1) Statutory damages are not inherently bad, just mis applied. They do provide leverage in negotiations between parties and are a deterrent to commercial exploitation of a work but generally should not be applied to small entities and private citizens. The small entities and individuals are may not be acting maliciously and generally are not aware of the infringement. i.e. "I didn't know I couldn't do that."or" I thought it was fair use.
2) Fair use is a foundation of our system and should not be stifled. The use really needs to be analysed and The Fair use factors provide for it. Perhaps a tiered system of use and licensing would make the process a lot less maddening and provide for a more streamlined system as opposed to the case by case basis where Fair use is an affirmative defense.
3) Where are the teeth to 512f? It is written into the statute but never enforced and as a result abuse runs rampant.
4) In theory there would be no deterrent to circumventing if there were no penalties but in some applications (You can't use other coffee pods in our coffe maker) it is clear the anti-competitive effect of the provision is detrimental.
5) Orphaned works are a problem and using them should be easier. I am against having to jump through hoops and spend money to be afforded protections written in the Constitution. They are currently and should be automatic. It could also set up a situation where copyright protection is lost because a company is waiting to exploit works' of others by having the resources to monitor the failure of others to re-register.
6) At a recent panel, the office acknowledged the need to modernize. It would better serve creators and right's holders to have the office more efficient, with less gray area. But more importantly, it would better serve the public. That is the Constitutional purpose of copyright and this should never be forgotten.
Re: It's not about the money
"It's not about the money."
"It's never been about the money."
"It's about the competition and control."
No, it's about money. To even suggest the MPAA's actions in any regard are motivated by anything other than Movie studios' ability and attempts to maximize profits is nonsensical. Movies are cost intensive undertakings at the major studio level. Regardless if one agrees with the accounting process or not actors, directors,writers and all associated with producing a film get paid. Many involved in motion picture work are unionized and must be paid a set per hour rate. It has always been about the money.
Re: Re: Re: Inducement?
The whole design and purpose of the Aurous is an interface and distribute copyright infringing material. By the Grokster logic, if that is the sole purpose then they are inducing copyright infringement.
Hasbro balked on a fighting game based on a show targeted to kids 2-11? How is this bad or surprising? You can paint this as some kind of travesty but it isn't. Hasbro wasn't approached about licensing and the developers could have saved some scratch by doing what they did in the end, change the characters a little.
Re: Re:
I suppose this is a bummer but TCPI is well within their rights. I think a cease and desist letter would have been a tad more charitable way to stop the use of the copyrighted character's images. There was no licensing involved and you have to pay to play I guess is the message here. Or They just didn't want their children's brand associated with a party at a bar with drinks named after it's characters. Definitely not a fan friendly move.
Re: Re: Re: "What are you going to do, stop buying? Don't make us laugh."
"They broke the law."
"Actually, no they didn't"
Actually they did.This suit was filed under a copyright claim and not trademark. The use of copyrighted images (Pokemon characters) in advertisements without licensing is copyright infringement.
Re: Re: It's bad enough
There are many purposes for the permissions asked. However, because a company states a beneficial reason for a certain permission does not mean there can not be another use. You are indeed giving them permission for exactly what is stated. How they will use the information is strictly their "word." This is the same stink that occurred with Facebook messenger's permissions and Facebook said they would not use the permissions granted in a nefarious way and there were many legitimate reasons for them. Why the about face now? and why for Spotify?
https://www.techdirt.com/blog/wireless/articles/20110417/21485513927/smartphone-apps-quietly-using-phone-microphones-cameras-to-gather-data.shtml
Re: Re: Not Bittorrent's job
Speeding, hit and runs, armed robbery, murder... that's just a few examples of cases where a crime is 'facilitated' by the product of a business, yet when someone speeds, do we blame the car manufacturer?
I think a more apt analogy would be you are the bartender/owner of a bar where people meet then plan and carryout hit and runs, armed robbery and murder. You as the bartender/owner hear them planning these crimes. There are some legitimate patrons, but word on the street is if you wanna find some people to do these crimes, then your bar is the place to go. You as the bartender are against illegality,so you say, but you don't do anything besides say you're against these crimes.... wink wink. Obviously copyright infringement is not on the same level as the crimes mentioned but I think you get my meaning.
Not Bittorrent's job
There are plenty of legit uses for bit torrent. In addition,the law provides finding infringing content is definitely not their job. I am more struck as to what would you have the RIAA do? There is nothing inherently wrong with a business based on selling music, or film etc. I have not agreed with many of the tactics used by many copyright holders in the past. However, if a certain behavior is illegal, and said illegal behavior frequently facilitated using another business, that claims they don't condone illegal activity, to take their statement at face value would suggest they might do something.....
Re: Re: Re: Re: Re: Re:
I chose photograph specifically for the lack of transformative element. Generally, use of a photo is exactly as the photo was taken. I don't believe a court likely taking a photo and placing it within another photo or ad transformative. Courts have noted taking a photo and placing within a book as transformative. Bill Graham Archives v. Dorling Kindersley, Ltd.But I think this would be different. In any event, we can agree to disagree. I think Perfect 10 a bit different because it could be argued a thumbnail pic has less resolution and is "kinda" transformative, where as,in my example and yours, the photo would be unadulterated.
Re: Re: Re: Re: Re: Re:
I chose a photograph specifically because the photographer is the rights holder and the photo was used without permission and there would be no transformative element. Moral rights do not figure into the equation because the politician did not license the use. I am not fond of moral rights and was not trying to imply after a sale the creator has any say in what is done with the creation. Interesting you brought up compulsory licensing because the license is contingent in not changing the song. So the compulsory license almost gives a moral bend because you don't have to get permission from the author but you can't really change it, in fact, in a way, controlling the song.
Re: Re: Re: Re:
The Fair use test includes an evaluation of whether the original creator's economic efforts are being stymied and perhaps I should have been more clear.
I think many ignore the literal meaning of copyright is the "right" to "copy." The control of derivative works etc. Whether there is a philosophical disagreement with the enumerated rights given is personal but as the statute is written, if a creator doesn't want their art used by someone or for something they are intrinsically opposed, regardless if they are economically harmed is their right. I think a perfect example, the photographer who is against discrimination based on sexual orientation and their photo being is used in a political ad by a candidate opposing gay marriage. If fair use was only an analysis of whether the photographer was being prevented from making money, this outcome could happen all the time with no recourse for the photographer. Thankfully, this is not the case.
Re: Re:
"The commercial nature of a use is irrelevant to a fair use determination."
That is one the most important elements. I am not sure I follow. if someone is making money off of another's creation is that not of significance?