Forget Wiretapping Laws, Now You Might Be Able To Use Copyright Law To Stop Anyone From Recording You Ever
from the this-is-not-what-copyright-is-about dept
There was a recent ruling in a copyright dispute between Swatch (the watchmakers) and Bloomberg that could have troubling implications concerning wiretapping issues. Effectively, it presents a blueprint for how to use copyright law to block otherwise perfectly legal recordings. At issue was that Swatch held an analysts call, as most public companies do regularly. It’s pretty standard for various financial firms to push out transcripts of such calls and to report/analyze them. In this case, Bloomberg recorded the call and offered a transcript to its subscribers. Pretty standard stuff. But… here, Swatch claimed copyright on the call. Why? Because they also recorded it (via a partner company), and since that recording was “fixed,” they could claim that it was covered by copyright, and then sued Bloomberg.
This ruling was on a motion to dismiss from Bloomberg, which the judge rejected, claiming that Swatch properly established that it had a valid copyright in the recording. It also declined to rule on the fair use claim at this point, though one hopes that, at a later stage, the fair use argument gets a stronger hearing.
The real problem with this ruling is what it could mean when you think about the consequences. As Paul Alan Levy notes, this appears to expand copyright law “far beyond its intended scope.” Think about it for a minute. It means that as long as you record yourself while doing something, you can stop anyone from (a) recording you or (b) quoting you, if they quote an amorphous “too much” of what you said in the recording. It’s not hard to see scenarios where this is problematic.
Most obviously, at a press conference (which this Swatch call was quite like), a reporter, who pulls out his or her recorder, could be violating the copyright of whoever is holding the conference. Furthermore, if in the process of reporting on the conference, they quote too much of what was said… well, they could face copyright infringement claims.
But let’s take it a step further. We just reported on the Massachusetts ruling that said that recording the police was legal. But… what if the police also recorded themselves… and then claimed copyright on that audio. According to this ruling, it’s possible that the copyright would be considered legit, and then you’d have to go to court to argue the fair use claim.
That’s clearly not what copyright law is intended for, but it’s a very real implication of this ruling.
Filed Under: copyright, recording, wiretapping
Comments on “Forget Wiretapping Laws, Now You Might Be Able To Use Copyright Law To Stop Anyone From Recording You Ever”
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;
Perhaps the judge needs to read that pesky Constitution again
In the case of the cops and the civilian recording the conversation wouldn’t they BOTH have the copyright to it? Same goes for the reporter who whips out his smartphone recorder. Seems to me that Bloomberg (as the party doing the presentation of finical data) could claim copyright because they also recorded it.
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That’s what you’d think if copyright were not completely insane.
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I thought independent creation was a defense.
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No, the recorder is not contributing any original authorship to the work (at least not in most cases).
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Doesn’t matter. We just had a story about someone who recorded some folk songs and got the copyright on them.
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It does matter.
As Mike noted in the article, “He possibly could have held the copyright on the sound recording (though, even there, there’s a question of whether or not the singer’s have a stronger claim).”
If anyone actually challenged Lomax’s claim to copyright ownership, I think he would probably lose.
Just because someone fills out a form and gets a copyright registration doesn’t mean they actually own the copyright they claim to own.
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That’s what I’d think. Wouldn’t that result in two copyrighted recordings of one broadcast?
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I think this part is key to answering your question:
I’m not sure what is meant by “fixed”, but it appears that one recording is “fixed”, the other isn’t, and that’s what makes one copyrightable(?) over the other.
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Trying to understand copyright maximists makes my head hurt….
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To be protected by copyright in this country, a work must be fixed in a tangible medium of expression. In other words, written down, recorded, or something of that nature.
Re: Re: Re:2 Re:
But to say that anything written down or recorded is eligible for copyright is completely nuts!
Re: Re: Re:3 Re:
True. But nobody said that.
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They each (should) have copyright on their own recordings. They will differ in aspects like the quality of the phone used and the phone lines, compression, etc. in between. Each is a fixed item.
Swatch should not be able to stop someone else’s recording of the call. It’s business discussion, not a play. It’s objective, not creative and should not be able to be copyrighted.
Mike, stories like this make you sound like Chicken Little ™.
Copyright law would not stop the recording. Even under this very circumstance, nobody would stop Bloomberg from recording the call, it would only stop them from re-broadcasting it or republishing it as a transcript.
There is nothing here that would stop anyone from recording a call. Rather, it would stop them from integrally re distributing the content of the call without permission.
Chicken Little ™ would be proud of you for this one Mike.
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coming from the side of copyright supporters, the biggest chicken littles …. chicken biggles… this world has ever seen you would know about that from experience, right?
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woosh
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It effectively does. What’s the point of recording something if someone else can dictate how I use it, who can listen to it, etc.?
But more importantly the point you chose to miss (as usual) is that copyright law was never intended for this purpose yet it’s being abused in this way.
AC, comments like this make me pity you.
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You can record it, you can’t use it commercially. If you need to listen to it again to get quotes (say as a reporter), you aren’t going to have an issues. The issue here is only that Bloomberg published it integrally.
recording + republishing = copyright violation.
recording + using as reference material to write story = have a nice day.
Chicken Little Mike would like you to think otherwise, but a quick read of the story can tell you otherwise.
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No. What this does is make it near impossible for anyone to fight back against abuse by others.
If I am having trouble with say my ISP. I call up their customer service and record the conversation myself. If after many repeated calls my problem is not addressed, one recourse is to post the recording or transcription online or use it in a small claims dispute.
If the ISP can claim copyright infringement on me when I post this online, that is blocking me from accessing one avenue of constitutionally protected redress.
This ruling is flat out stupid and anyone who supports it does not understand copyright law (even in its current screwed up state) nor do they understand Constitutional law.
Re: Re: Re:2 Re:
As he stated, that has to do with the posting, not the recording.
Are you intentionally conflating those two things?
Re: Re: Re:3 Re:
Whats the point of recording a conversation if you cannot use the transcript, honestly?
Re: Re: Re:4 Re:
None. Luckily, this case has nothing to do with a complete prohibition on any kind of use of a recording.
There are plenty of uses for a recording other than publishing the entire recording/transcript for profit (of course, the court hasn’t even definitively stated that THAT use is prohibited).
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The point you never will address is what makes a conversation copyrightable in the first place or why it deserves protection?
That you will never answer right chicken little?
Re: Re: Re:2 Re:
I will address you first, anonymous one: Simply put, the call was a “performance”, given by the company. It wasn’t a back and forth discussion between two people, it was a presentation.
It wouldn’t be any different from a Bloomberg stock analyst, standing in front of a room full of investors, teaching them how to invest. Let’s say Bloomberg records it to sell online as PPV video, and one of the people attending pops up an HD camera, records the whole thing, and puts it for free on youtube – or worse, puts it on their subscription only investor blog.
Would Bloomberg have copyright? Damn right they would, and the video would get taken down from the blog.
E. Zachary Knight: The difference is night and day. The customer service person isn’t giving a performance or a presentation (although some of them are good actors), you are involved in a one on one phone conversation. There is nothing in this ruling, nothing at all, that would suggest that (a) you could not record the call (with notification required in some places), and (b) publish that call as part of a blog, news article, or other.
Can you please show me where you are able to draw this conclusion?
For me, it’s Mike taking a 1% decision, and then screaming that the sky is falling and is going to wipe out the other 99% of cases. It’s just not there.
Re: Re: Re:3 Re:
OMG, I will send you my medical bill I just fell out of my chair laughing.
If what you said is true than every message I recorded on my answering machine is copyrighted.
It also means, nobody will be ever allowed to record Steve Jobs presentations or any scientific or medical presentation ever without permission.
I want to see that hold up in court, ANY court!
Re: Re: Re:4 Re:
OMG is right. You are truly dense.
No, what you recording on your answering machine is copyrighted. It isn’t anything. Why go there? It isn’t even vaguely related to the story or my comments.
Nobody is saying people can’t record things (except for Chicken Little Mike). The issue is the republication in it’s entirety of a copyrighted work.
The ruling is only against a motion to dismiss, it isn’t a legally binding ruling, just a response to a motion to dismiss.
It is really, amazing to watch you desperately trying to discredit my opinion, and failing massively, flailing around like a mad thing.
Re: Re: Re:5 Re:
Oh chicken little c’mon you can do better than that can’t you?
If I have a recorded message in my answering machine that recorded message is a presentation according to you and I own the copyright to it right?
Because that is what the judge insinuated when he didn’t dismissed outright this stupid lawsuit.
Furthermore you don’t know that the recording has a copyright and you even agree with another guy in this same thread that explicit said that, but you keep saying that Bloomberg by making their own recording violated the copyright of something that certainly have no copyright protections at all, because if it had, my phone answering machine recording messages would all be copyrighted, but we all know that is just silly don’t we chicken little?
Re: Re: Re:6 Re:
“If I have a recorded message in my answering machine that recorded message is a presentation according to you and I own the copyright to it right?”
No. Simply recording someone else’s words doesn’t give you a copyright on those words, and the other AC never implied as much.
Try harder to understand, instead of putting so much effort into fighting.
Re: Re: Re:7 Re:
No it gives me copyright on my recording of that persons words.
I believe every newspaper out there do this on a regular basis.
Is analogous to filming a football game, if I film it it is mine recording independently of who is playing on the field.
Just like every company has a right to claim copyrights on their version of things, it is a different version of the event.
Re: Re: Re:8 Re:
If you could point me to any support for that assertion, I’d be appreciative.
I’ll wait.
Here’s my support:
17 USC 201(a): “Initial Ownership. ? Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.”
From http://www.copyright.gov/help/faq/faq-definitions.html:
“Who is an author?
Under the copyright law, the creator of the original expression in a work is its author.”
Simply recording another’s original expression does not make you an author, unless you’ve got some basis to claim your recording also includes your own original expression (even then, there are some tricky issues as to whether you can claim copyright in an unauthorized recording).
Re: Re: Re:9 Re:
Sure does in fact, because you ‘authored’ the recording (which is the legally correct term).
Not that it isn’t ridiculous, but thats the law.
Re: Re: Re:10 Re:
As I have noted several times in this thread, with citations, that is not the case.
If you have any support whatsoever for your statement, I’d love to see it.
Even if you don’t have support, I would love to know what motivates you to publicly post “that’s the law.” What makes you believe that “that’s the law?”
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Is analogous to filming a football game, if I film it it is mine recording independently of who is playing on the field.
Used to be.
Re: Re: Re:5 Re:
The real issues are a) Presentations of this nature are not copyrightable and b) even in the event of some very dubious interpretation of the law make it so how can somebody claim copyright on the recordings of another?
So your crapoula about republication in it’s entirely is just BS.
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“a) Presentations of this nature are not copyrightable “
Why the heck not?
“b) even in the event of some very dubious interpretation of the law make it so how can somebody claim copyright on the recordings of another?”
If someone else simply records your performance, you sure as heck have a copyright interest in that performance. If I got to the theater and record a movie, the movie studio does in fact have a copyright interest in my recording of their movie.
“So your crapoula about republication in it’s entirely is just BS.”
Because you say so? It’s a legitimate point, and if you just gloss over that, it makes it obvious that you’re not interested in a rationale, real-world interpretation of this case, but just want to follow Mike into a “the sky is falling” hysteria.
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Presentations *of this nature* aren’t copyrightable. If I get up on a stage and start explaining copyright law to you, there’s no copyright on said performance. It’s not recorded in a fixed medium. If somebody records me during my explanation (barring contractual agreements), then they have the copyright on said recording. If two parties make separate recordings they will each hold the copyright on their respective recording. The difference between this scenario and making a cam of a movie is that the movie is already in a fixed medium.
Re: Re: Re:8 Re:
If you would kindly support anything you’re saying with actual law, I would be most appreciative.
I’ll do my part:
If someone is recording you while you give your presentation, then, at that moment, it is being fixed in a tangible medium of expression.
They fact that they press “record” does not give them any copyright interest. The “author” of a work owns the copyright. To be an “author,” you must contribute your own original authorship. The person who created the presentation is the one doing that.
The button-presser is irrelevant to a copyright ownership analysis.
I have, in fact, given presentations on copyright law that were simultaneously recorded, and it is my firm belief that either I or my employer at the time own the copyright on such presentations.
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So now politicians can claim copyright over their presentations to the public right?
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Not if they are acting in their role as an employee of the federal government.
Otherwise, they may have a copyright interest in their public presentations (assuming they actually created them or they own the copyright as a work made for hire).
But having a copyright does not mean you have absolute control over how your protected work is used.
Re: Re: Re:7 Re:
Oh that is rich coming from the dude that keeps coming here just to call others names.
Re: Re: Re:8 Re:
Wait, was this in response to me? I think you’re confusing me with someone else.
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Haha
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“it isn’t a legally binding ruling, just a response to a motion to dismiss.”
I don’t think that’s a fair characterization of motion to dismiss rulings
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Here chicken little a lot of infringing videos according to your standards.
http://video.foxnews.com/
I didn’t watch all of them because Faux news is blocked here but all other news do have also infringing videos.
Re: Re: Re:3 Re:
Simply put, the call was a “performance”, given by the company.
Everything I say or do is a performance.
It wasn’t a back and forth discussion between two people, it was a presentation.
The size of the audience doesn’t matter in copyright law.
Can you please show me where you are able to draw this conclusion?
I just about to ask you the same thing about the requirement that there be three or more people present.
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That’s the most absurd thing I have ever heard. In recording a call involving multiple parties, there was no explicit ownership of the conversation nor was there a unique and novel creation. Nothing here would even come close to meeting the requirements for a copyright any more than a conversation on the street.
This is absolutely a perfect example of everything wrong with these extensions of copyright law.
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Except it wasn’t a conversation, it was a presentation. Clearly you have never been on one of these calls.
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Which begs the question of why it wasn’t dismissed?
Since Bloomberg admits to recording it and there is no law preventing anybody from filming a presentation. Is there such a law chicken little?
Re: Re: Re:4 Re:
The question isn’t the recording of the event, it is the republishing of it.
Mike is trying to confuse you by focusing on the non-issue, which is recording. It isn’t about recording.
Re: Re: Re:5 Re:
It is all about recording, Bloomberg tapped into the conference call and recorded it, that is why Swatch is filling the damn lawsuit.
The copyright is being used to censor Bloomberg.
Re: Re: Re:6 Re:
Why are you ignoring Bloomberg’s publishing of the entire transcript?
You think the suit would have been filed based solely on a recording that Bloomberg never republished? I think that is unlikely.
Re: Re: Re:2 Re:
“there was no explicit ownership of the conversation nor was there a unique and novel creation”
None of those things have anything to do with copyright ownership, which requires neither an explicit claim of ownership, nor uniqueness, nor novelty.
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Does that mean that CCTV evidence is inadmissable due to copyright issues? Because if not, then I’m recording whoever the fuck I like whenever the fuck I like and using it however the fuck I like.
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Let me repeat for you:
“The question isn’t the recording of the event, it is the republishing of it.
Mike is trying to confuse you by focusing on the non-issue, which is recording. It isn’t about recording.”
Once you stop looking at the magician’s flash paper Mike ignited over the “recording” non-issue, it’s easy to understand the rest. Until you stop looking at the flashy stuff, it’s hard to get a grip on the whole story.
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You can record it, you can’t use it commercially.
Bzzzt. The day when copyright only applied to commercial use are long gone.
recording + republishing = copyright violation.
Commercial or otherwise.
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“””Copyright law would not stop the recording. Even under this very circumstance, nobody would stop Bloomberg from recording the call, it would only stop them from re-broadcasting it or republishing it as a transcript.”””
I’m sorry, let me get this straight. You’re saying, “Big deal, they can still make the recording, they just can’t use it in any way or let anybody listen to it or transcribe and print it. But they can still make the recording.”
Is that about the gist of your post?
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No, they can record it, and they can still use it – as an example to verify quotes or to run an excerpt as one might do while reporting on a story.
What Bloomberg did was publish the entire call verbatim, which would go past the typical use of copyrighted material. It isn’t any different from a movie review compared to just putting the full movie up.
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http://www.cmu.edu/news/stories/archives/2011/april/april25_materialsmathematicians.html
There I found more pirates, all that material is infringing according to your standards.
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How is publishing a press release an issue?
What the heck are you guys smoking?
Re: Re: Re:3 Re:
Did they not record that?
Did they have permission from the person giving the show to do that?
Under your thinking a good chuck of those press releases are all infringing since I very much doubt that they got express permission to do any recording there.
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“express permission” is not needed. Have you heard of an implied license? Putting “press release” on something you distribute to the press would reasonably be taken as permission to use the material.
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=====================
No, they can record it, and they can still use it – as an example to verify quotes or to run an excerpt as one might do while reporting on a story.
What Bloomberg did was publish the entire call verbatim, which would go past the typical use of copyrighted material. It isn’t any different from a movie review compared to just putting the full movie up.
=====================
Actually, this makes sense. I think I misunderstood what happened here. If all they did was reproduce it but without the understanding from the creator that it would be aired in its entirety, I can see an issue. The way I took it was that they were reporting on it, not merely rebroadcasting, and that it was disputed that they should be allowed to use some of the original material to report.
The analogy is a good way to articulate it.
Thanks,
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The gist I got was this: Mike is wrong that the ruling prohibits recording. While some uses of a recording may be prohibited (although this ruling is not final in this regard), it does not mean all uses are prohibited.
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Now chicken little explain to everybody why copyright is being used as a form of censorship?
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ahh, Mike’s little defender bots are back to work.
I wonder which one of the site staff does these posts.
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The one that don’t get paid and it is anonymous.
Truly anonymous by the way LoL
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So I wouldn’t be allowed to “rebroadcast” it inside of a courtroom either?
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So, if I make a recording of a phone call, and someone else makes a recording of the same call, we now have two essentially identical, independently created works, both covered by copyright. How is it that the other copyright automatically overrides my copyright on my recording, and limits what I can do with my recording?
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There is a possibiliy that you are co-owners of the copyright in the call. Who does the recording is immaterial to who owns the copyright.
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I shouldn’t say it is immaterial. Arguably, there is a requirement that the person doing the recording be authorized by the author to make the recording for there to be a copyright in the recording.
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“…it would stop them from integrally re distributing the content of the call without permission.”
Which is the whole point of the article, boy; the idea that it could be used to stop dissemination of the information.
How dense ARE you?
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This makes no sense. The content of the call is public and therefore owned by no one. So, the company can’t restrict the rights of anyone to record and republish it. At least not without judges trying to make up new laws…
You should take this post down. It makes you look stupid.
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well, since i don’t have moderator powers, i can’t take your apparently stupid post down, sooooo hopefully some mod feels sorry for you and does as you ask
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(i hope that post was intended to be a reply to someone else and not standalone)
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I guess it was a reply to AC no. 3
The one that started
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Interesting.
To me, it makes him look like the only guy who (a) actually read the opinion, and/or (b) has a basic understanding of copyright law.
Photos
So, if I take a photo of something, does copyright law now preclude anyone else from taking a photo of the same thing?
Re: Photos
Quick. Someone delete this post before a lawyer reads it and gets an idea for a new revenue stream.
Re: Re: Photos
It would probably have to be something not already fixed in a tangible medium. Though photographing gardens may be an interesting place to start…
Re: Photos
Depends.
But this ruling has nothing to do with that.
Wouldn’t anything recorded by the police in the perfomance of their duties be included in the public domain?
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No.
For example, if police are working a concert, they cannot simply record some of the music and therefore make it public domain.
Separate copies
Hold on. From the initial description, it sounds like Bloomberg makes their own recording of the call. So we have two separate recordings of the same call. What makes one recording take precedence over the other? My impression is that each has copyright over their own recording and can control copies of their own recording, but not the other.
That’s why the thing that prevents people from recording concerts is the fine-print agreement language (contract?) on the ticket, not copyright law.
B
Re: Separate copies
and the fact that the composition may have its own copyright – not true of a conversation – which should not be a protected work anyway.
Re: Re: Separate copies
Except that an earnings call isn’t a conversation, it is a presentation, much like someone standing a podium presenting slides, and then accepting questions from the audience.
This was not a one on one interview, it was not a private conversation.
Re: Re: Re: Separate copies
Except if that is the case than this is not a copyright issue it is a first amendment issue.
Re: Re: Re:2 Separate copies
And the court will eventually address the fair use argument
Re: Re: Re: Separate copies
Lectures don’t have copyright except as recorded in a fixed medium. If I’m not copying *your* recording, but using my own, no copyrights should be violated
Re: Re: Re:2 Separate copies
FALSE FALSE FALSE
Just because you press “record” does not mean that the author of the work being recorded does not have a copyright in the resulting recording.
Re: Separate copies
Recording someone else’s work does not give you a copyright on that work.
Simply recording something created by someone else does not make you an author of the resulting recording.
How is a conversation copyrightable at all?
It boggles the mind.
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“How is a conversation copyrightable at all?
It boggles the mind.”
Thats easy! Because it’s a creative work (right?) that NEEDS protection or else people wouldn’t converse ever again if they cant be guaranteed a government protected way of profiting from it. Come on, it’s SO easy!
The judge needs to learn some tech
If you each recorded the conversation directly from the call then your recording is quite independent of his and HAS ITS OWN SEPARATE COPYRIGHT – Judge-fail.
Re: The judge needs to learn some tech
I’m not qualified to comment on its merits in this case, but the judge specifically addressed this in his ruling.
When a “work consist[s] of sounds … that are being transmitted”-that is, when a work consists of sounds that are being “communicate[d] … by [a] … process whereby … sounds are received beyond the place from which they are sent,” id.-the work is considered fixed “ifa fixation of the work is being made simultaneously with its transmission.” Id. This provision “creates a legal fiction that the simultaneous fixation occurs before the transmission” for purposes ofan infringement claim. United States v. Moghadam, 175 F.3d 1269, 1280-81 (II th Cir. 1999).
In other words, the law treats the unauthorized recording of sounds that are transmitted live and recorded simultaneously as an infringement of the copyright in the fixed work (assuming the work otherwise qualifies for protection), notwithstanding that the alleged infringer does not copy the fixed version ofthe work but rather records the live transmission directly.
Re: Re: The judge needs to learn some tech
“ifa fixation of the work is being made simultaneously with its transmission.”
There is no such thing as simultaneous – action at a distance – see Einstein – Judge -FAIL
Re: Re: Re: The judge needs to learn some tech
really? good lord.
Re: The judge needs to learn some tech
This is not true. I’m probably sounding like a broken record at this point, since so many people are getting this wrong here.
The judge did not fail on this point. You did.
Re: Re: The judge needs to learn some tech
See my response below–these are recordings of spontaneous works that are far more likely to fall under “sweat-of-the-brow” than valid copyrightable content.
Re: Re: Re: The judge needs to learn some tech
You really think an earnings call is a spontaneous work with no creativity/authorship that goes into the presentation?
I don’t believe that. The standard of originality needed for copyright protection is very, very low. I’m sure this qualifies.
Re: Re: Re:2 The judge needs to learn some tech
Well, we’ll have to disagree on that unless you can show me a prior case where the standard was applied to something similar to this and it survived. The concept of copyright was created to provide an incentive to creators to progress for the overall public good.
I’m pretty sure that “promote the progress” was never intended for presentations like this. In fact I would argue they need no incentive for creation–they would exist whether copyright covered them or not because there are many other incentives for them to exist regardless of the form.
And I think we should all be very scared of the level of the bar you describe–if it is that low, Mike is very reasonable to be afraid of the implications.
Re: Re: Re:3 The judge needs to learn some tech
It has been that way for generations. The rationale (or at least one rationale) is that we don’t want judges making some artistic judgment as to whether something is sufficiently “creative” to warrant protection.
Here are some cases:
http://www.law.cornell.edu/copyright/cases/197_F3d_1256.htm (9th Circuit opinion discussing low bar for copyright protection and holding that published coin price estimates are protected by copyright).
http://floridalawfirm.com/iplaw/ccc2.html (2d Circuit opinion discussing low bar for copyright protection and holding that published car price estimates are protected by copyright).
http://digital-law-online.info/cases/44PQ2D1172.htm (10th Circuit opinion discussing originality requirement, and holding that portions of short codes were sufficiently original to warrant copyright protection, although they were ultimately unprotectable under the scenes a faire doctrine).
Now, if you’re going to require an opinion that fits the exact fact pattern presented in this case…well…the opinion Mike embedded in his article ought to do the trick, no?
Hold on... no more reporters?
So what I’m hearing is… no more media?
Here’s a quick solution for all of the news agencies – boycott anyone company that is so stupid as to think they control their public information. Just don’t report. Refuse to run their adds. See their sales plummet.
I’m all for taking control of your life, but this is just ridiculous.
Re: Hold on... no more reporters?
None of it is about controlling the media. Bloomberg can report about the call all they want, over and over again, and quote the call over and over again. What they cannot do it publish a copyright work in its entirety.
How frigging hard is that to understand? I know why Techdirt is so popular, you guys really lack imaginations.
Re: Re: Hold on... no more reporters?
“How frigging hard is that to understand? I know why Techdirt is so popular, you guys really lack imaginations.”
Clearly it takes a high dose of imagination to twist reality this badly. I’m glad you aren’t afraid to point that out to these freetards.
Re: Re: Re: Hold on... no more reporters?
Yet again, fascinated by your ability to ignore critical portions of arguments whilst addressing others.
It is hard to understand because the fundamental premise is faulty–that the call is even copyrightable to begin with.
“What they cannot do it [sic] publish a copyright work [sic] in its entirety.”
Statement is irrelevant since what is being discussed is not a copyright work [sic].
Re: Re: Re:2 Hold on... no more reporters?
your [sic] is making me [sic]. If you have a comment, make it. If you want to just piss on me, then go away.
Re: Re: Re:3 Hold on... no more reporters?
Fascinating – you don’t like being pissed on, yet consistently piss on others.
I believe there was a comment.
The entire chain of comments is based on the premise that the call is copyrightable, which is wrong to begin with. That’s why others are struggling with anything you’re saying.
Re: Re: Re:4 Hold on... no more reporters?
Please explain why the call is not protectable by copyright.
It is a literary work fixed in a tangible medium of expression that exhibits at least a modicum of originality.
Re: Re: Re:5 Hold on... no more reporters?
First, because the tests for copyrightability include an expectation for significant creative input vs “sweat of the brow”. I believe (and you may not) that most people here or otherwise would not consider a quarterly report finance call to be anything other than sweat of the brow. For example, the call is designed to primarily communicate facts, not theme, plot, entertainment, etc.
Sweat-of-the-brow is a rejected doctrine in the US.
Re: Re: Re:6 Hold on... no more reporters?
Second, not sure why you are calling it “literary”. By definition a literary work: of, relating to, concerned with, or characteristic of literature or scholarly writing.
I also don’t think most people would consider a quarterly report to fall under that definition either.
Modicum of originality BTW is not a bright-line test for copyright in the US.
Re: Re: Re:7 Hold on... no more reporters?
I’ll address all your points here:
there is no requirement for “significant creative input.” Rather, there need only be a modicum of creativity/originality. Of course, this is not a “bright line” that can be easily delineated, but the standard is extraordinarily low. As long as the claimed author can show he put some thought/effort/judgment into determining what he was going to say, the standard is met. I have thoroughly researched this numerous times, so if you want me to provide citations, I can, but I’d rather not spend the time right now.
Second, you are not looking at the right definition of “literary work.” From the Copyright Act (17 USC 101):
“?Literary works? are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.”
Under the standards indicated above, things such as car price guides, jewelry price guides, and many other such works have been given copyright protection.
Re: Re: Re:8 Hold on... no more reporters?
All of those things you’ve described are very different than a verbal call–they include artistic elements and if I’m recalling the cases you are, the whole guides were not covered, just the artistic elements.
As I said above, I’m pretty sure this bastardizes “promote the progress”–companies need no limited monopoly to be convinced to conduct these calls and would do so whether copyright covered them or not.
Exactly what public/social good is being covered here (part of the original purpose for copyright)?
Re: Re: Re:9 Hold on... no more reporters?
I’m not sure what cases you are talking about, but I cited cases involving coin price estimates, car price estimates, and call controller codes above. They do not involve “artistic elements.”
Are you switching to another basis for your argument (oral v. non-oral)? The oral transmission was simultaneously recorded by Swatch, making it not just an oral communication.
Saying the law “shouldn’t” cover this type of work is not the same as saying the law “doesn’t” cover this type of work.
Re: Re: Re:10 Hold on... no more reporters?
Btw, thanks for clarifying the definition of literary.
Re: Re: Re:11 Hold on... no more reporters?
No prob.
I like being able to clarify issues for people, though I sometimes slip into an adversarial mode when people seem more interested in finding anything to criticize than actually listening/conversing/understanding.
Re: Re: Re:10 Hold on... no more reporters?
No, I wasn’t trying to switch–the examples you gave were physical pamphlets (guides) and what I recall about those situations was that copyright covered the color, art, and organization (?) but not the words or prices.
Re: Re: Re:11 Hold on... no more reporters?
No, the cases say they cover the prices. Check the links.
Re: Re: Hold on... no more reporters?
And they did with their own recording, how hard is that to understand?
surely one of the most worrying things here will be if people can use what they record about the police in court? it could be said that as the police recorded the same thing, they have the copyright on it
Lemonade
So, this means I can walk down the street, filming myself, and then turn around and sue all the entities with street-facing video cameras for copyright infrinement.
Winning!
No no no no no!
Mike! Brush up on your Civ Pro!
This ruling was on a motion to dismiss! With a motion to dismiss, the judge looks at the pleadings, and says, “Assuming everything the plaintiff says is true, and assuming the plaintiff can prove everything they claim in their pleading, is there a case here?”
This is designed to prevent something from going to trial, with days of evidence and testimony, etc. and having the end product be: who cares, that’s not actually illegal. So, I could file a suit claiming you’ve defamed my dog. On a motion to dismiss, you would say, “Judge: Assuming that I did say something terrible about this woman’s dog, who cares? Insulting a dog is not a crime!” And you would win your motion to dismiss.
Here, there was a claim of copyright infringement, for which the plaintiff has to prove that there is a copyrighted work in question, that the plaintiff owns the copyright, and that the defendant copied it. The question on a motion to dismiss is if the plaintiff has ALLEGED all of these to be true. Swatch recorded a call. Swatch says there is a copyrighted work. Swatch says it owns the work. Swatch says Bloomberg copied it. Done and done.
Whether or not any of those things are true or can actually be proven is NOT something addressed in a motion to dismiss!
I, for one do not think this would survive a motion for summary judgement, where the question of ability to prove the allegations comes in. I don’t think there is any way to prove copying here, because Bloomberg didn’t record or copy Swatch’s recording, just happened to make a recording of the same event. But that is a question for another day.
Re: No no no no no!
Don’t confuse Mike with facts that don’t support his view. He will soon be on here to claim you are an idiot, uneducated, and have no idea what you are talking about.
Mike is getting funny. Now we have TorrentMike and ChickenLittleMike. Now if he can combine them, we can have a torrent of chicken (by his logic).
Re: Re: No no no no no!
Translation of your post: deflect, distract, and denigrate.
Re: Re: Re: No no no no no!
translation of your post: He spotted what Mike is doing. Quick, let’s try to bury him under bullshit posts, personal attacks, and deflection.
Awesome to see the Techdirt staff hard at work.
Re: Re: Re:2 No no no no no!
I noticed you deflected again.
Re: Re: Re:3 No no no no no!
I didn’t deflect anything, I just made it so your shit don’t stick.
So which staff member are you, anyway? I am sort of betting on Marcus, not logged in. Your typing style is very similar.
Re: Re: Re:4 No no no no no!
Didn’t deflect anything? So 2+2 does not equal 4?
Deflection = not addressing the content of the prior post. Rather than saying, I didn’t deflect, distract, or denigrate because of x, you instead attacked the poster.
That is classic triple d’s. Perhaps you operate with different definitions of those words?
I am not a staff member although you have accused me of that before. Tell you what, I’ll reveal myself when you do.
Re: Re: Re:5 No no no no no!
Ah…. silence, as usual, once deflection, distraction, and name calling are no longer options.
Re: Re: Re:5 No no no no no!
Ah…. silence, as usual, once deflection, distraction, and name calling are no longer options.
Re: Re: Re:4 No no no no no!
A bit defensive are we today?
Re: Re: Re:4 No no no no no!
“So which staff member are you, anyway? I am sort of betting on Marcus, not logged in. Your typing style is very similar.”
Plus he was missing during roll call this morning, when Mike hands out our pirating assignments. I’m with you. It’s obviously Marcus who is logging in and commenting from behind the grassy node….
Re: Re: Re:4 No no no no no!
You’re adorable!
Re: Re: No no no no no!
“Mike is getting funny.”
Better than you. Do you really have nothing more than name calling and misrepresentation?
Re: Re: Re: No no no no no!
Do you have anything to add at all?
But presumably Simon Gilk could countersue the police for making an unauthorised recording of his contributions to the encounter he filmed?
Seems to me this is just a framework for speech and thought control.. in the end, no doubt that’s what it will turn out to be.
Morons
“Morons in a Hurry” passed this ruling…
The ones who will be all over this - Athletic orgs
Sports organizations are going to love this. They’ll be able to takedown your camcordered clip of the big game, because they’ve fixated a copy too.
Re: The ones who will be all over this - Athletic orgs
Ah, but in that case there is no underlying copyrightable work being copied (in my opinion), whereas an earnings call is essentially a presentation that is protectable by copyright.
Re: Re: The ones who will be all over this - Athletic orgs
Are you saying a scripted athletic event (e.g. professional wrestling), or a choreographed half-time show would be protect-able from amateur recorders?
Re: Re: Re: The ones who will be all over this - Athletic orgs
I’m not sure I understand the question.
I think both the examples you give would be protectable by copyright.
I do not think an unauthorized recorder of such live performances would have a copyright interest in his/her unauthorized recording, for three reasons.
First, simply recording the event does not imbue the recording with any of the recorder’s original expression. However, there could be a situation where the recorder’s own expression is captured in the recording (I’m thinking of the Seinfeld episode where Jerry makes beautiful bootlegs of movies).
Second, 17 USC 103(a) says “protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.” Some courts have interpreted this as meaning you can’t claim copyright in something that unlawfully incorporates someone else’s copyright-protected material.
Third, 17 U.S.C. 101 says “A work is ?fixed? in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is ?fixed? for purposes of this title if a fixation of the work is being made simultaneously with its transmission.”
Thus, if you don’t have the authority of the author, your unauthorized recording might not be considered “fixed” for copyright protection purposes.
Hmmm
After reading the comments, it appears to me the leading argument is that it was covered by copyright because it was a presentation. After carefully reading the story several times, it looks to me that Swatch is not concerned about it being a presentation, they seem to be more concerned that because their recording was “fixed”, it belongs to them.
“Swatch claimed copyright on the call. Why? Because they also recorded it (via a partner company), and since that recording was “fixed,” they could claim that it was covered by copyright, and then sued Bloomberg. “
The second argument was to suggest that Mike seems to think that no one would be able to quote the meeting because of this copyright. I seem to have read otherwise.. it appears to me Mike is suggesting that one could find themselves in a pinch for quoting to much, which is exactly what happened.
“Furthermore, if in the process of reporting on the conference, they quote too much of what was said… well, they could face copyright infringement claims.”
Perhaps you shills should actually read the story before you start throwing out your bullshit. Of course the comments wouldn’t be as interesting if you did….
Re: Hmmm
You said: “it appears to me Mike is suggesting that one could find themselves in a pinch for quoting to much, which is exactly what happened.”
Me: they didn’t quote too much – they published the entire thing verbatim.
Think of it as the difference between a 30 second or 1 minute movie reviewer clip, and broadcasting the whole movie.
“quoting too much” isn’t an issue here, unless you consider the full presenation to be a reasonable quote.
Re: Re: Hmmm
“Me: they didn’t quote too much – they published the entire thing verbatim.”
He said you could get sued for just too much, and you keep saying the whole thing. I don’t care how much they posted, apparently it was too much. Right?
“quoting too much” isn’t an issue here, unless you consider the full presenation to be a reasonable quote.”
Swatch is not suing because the transcript was passed out, they are suing because they are claiming a copyright on the recording itself. Their position is that Bloomberg had no right to record the call in the first place… did you read the fucking article?
Re: Re: Re: Hmmm
AJ, you are sort of running yourself into a logical circle.
Swatch is claiming copyright because they recorded, not “on the recording”. They did what is required legally to have a copyright (fixed recording). What bloomberg did was record the call as well (totally legal, nothing changed here), and then use that recording to publish a verbatim transcript of the complete call. That is where they screwed up. Bloomberg as reporters could record the call for reference, but not for the purposes that they used it for.
If Bloomberg had asked to record the call for transcription purposes, they would have likely been declined that right.
If Bloomberg had not published a full transcript, there would be no issue.
Don’t get confused. The recording isn’t the issue – the use of it is.
Re: Re: Re:2 Hmmm
“Bloomberg as reporters could record the call for reference, but not for the purposes that they used it for.”
I disagree, and I am not confused.
a. “It means that as long as you record yourself while doing something, you can stop anyone from (a) recording you or (b) quoting you,”
The above is what Mike said. Now, after reading the links, I think that Mike is wrong in that that they can’t sue over the actual recording, but they can sue over the distribution of the transcripts in their entirety.
I would think they would sue for breach of contract, not copyright anyway.
Re: Re: Re:3 Hmmm
I disagree, and I am not confused.
“Bloomberg as reporters could record the call for reference, but not for the purposes that they used it for.”
a. “It means that as long as you record yourself while doing something, you can stop anyone from (a) recording you or (b) quoting you,”
The above is what Mike said. Now, after reading the links, I think that Mike is wrong in that that they can’t sue over the actual recording, but they can sue over the distribution of the transcripts in their entirety.
I would think they would sue for breach of contract, not copyright anyway.
whoops.. screwed up the order of my quotes… maybe it makes since now…
Totally bogus
I think that the copyright claim here is totally bogus on the face of it unless somehow the “call” was a broadcast of an earlier recording. Copyright on a recording lies with whoever made the recording. Sure swatch owns the copyright on their recording, but Bloomberg did not make a copy of that, they simply recorded the same original source as did swatch. If there is somehow a copyright claim here why would it lie with Swatch? Couldn’t Bloomberg make the same argument, they own the copyright in their sound recording so the Swatch recording is infringing? When 2 people make separate recordings of the same thing then there are 2 copyrights, one for each recording. It is like TV news companies suing each other because they all filmed the same event
Re: Totally bogus
“Copyright on a recording lies with whoever made the recording.”
Why don’t you just go ahead and find some legal support for that proposition. I’ll wait.
Not Actionable
A copyright claim requires actual copying. If one party is using their own, independently created recording, I don’t see how that “copying” element can be met. They’re simply not copying the recording that the other party fixed in a tangible medium and is claiming a copyright to.
could this cover campaign events?
Could this ruling be used to cover campaign events? Most candidates will have a fixed camera at their speeches, and many candidates have recently been trying to limit press and public reporting of their events.
If two people are recording at the same time, how do they decide who gets copyright priority?
Re: Re:
Only someone who contributes their own original authorship gets copyright. Simply pressing “record” does not count.
Re: Re: Re:
So recording political speech now can be censored right?
Re: Re: Re: Re:
How could you possibly draw that conclusion from what I said.
I’m truly interested in the thought process that led you to that conclusion.
criminals can get away with murder
So, as a criminal, i can kill someone or rob a bank BUT record myself doing it.. then claim copyright and not allow any of the victims to tell anyone what happened. The police pick me up and i give them a FULL confession… BUT i record myself and they cannot use my confession.
How about a bill collector harassing you or breaking the law but recording it so you cannot file a complaint?
This is the type of thing that can get WAY out of control.
Re: criminals can get away with murder
Yup. The sky is literally falling. Better build a sturdy roof. You’re totally right, and what you’ve said is not at all a ridiculous extrapolation wholly divorced from the content of this ruling.
/sarcasm
criminals can get away with murder
So, as a criminal, i can kill someone or rob a bank BUT record myself doing it.. then claim copyright and not allow any of the victims to tell anyone what happened. The police pick me up and i give them a FULL confession… BUT i record myself and they cannot use my confession.
How about a bill collector harassing you or breaking the law but recording it so you cannot file a complaint?
This is the type of thing that can get WAY out of control.
Legality of recording a conversation!
This precedent was determined in 1998 or 1999 as a result of potential litigation between an ISP and a customer. At that time it was determined that when a called party or call center plays an announcement that the call might or would be recorded that the announcement gave the caller the right to record the conversation without warning the called party. The theory is that a called party (call center) recording a conversation without allowing the calling party (customer) to record the conversation would be the same thing as requiring the customer to sign a contract and then refusing to give them a copy of the contract they just signed.
This decision is very troublesome in that it has the potential of making a recording made by a caller (customer) legally invalid because the called party (call center) announced that the call would be recorded and therefore established copyright of the recording of the conversation.
Bloomberg did not copy Swatch's RECORDING.
It’s real simple — Bloomberg did not copy Swatch’s copyright RECORDING, Bloomberg copied a conversation, just as Swatch did.
Suppose 10 video journalists show up to record the President’s speech, does the first to hit the send button on their recording invalidate the other 9?
No, because the other 9 did not copy the first videographer’s RECORDING, they all recorded something from the free and open airwaves, available to all.
Re: Bloomberg did not copy Swatch's RECORDING.
Read the opinion. It explains, in detail, why your argument is contrary to the law. The Copyright Act explicitly deals with simultaneous recording of live transmissions.
Which line in THE "Copyright Act" (which Copyright Act?!?) applies?
Earlier, “… Read the opinion. It explains, in detail, why your argument is contrary to the law. The Copyright Act explicitly deals with simultaneous recording of live transmissions. …”
And YOUR reading of the opinion and “the” Copyright Act in this situation is …?
Do tell.
Re: Which line in THE "Copyright Act" (which Copyright Act?!?) applies?
Why don’t you start by reading all my comments in this thread, so I don’t have to repeat myself. If you still have questions, I’ll gladly answer them.
Also, why is “the” in quotation marks? The opinion does not indicate any dispute as to what act applies to this case (although I suppose you could raise the issue since the call originated from Switzerland).
Bloomberg are thieving sleazebags
Wait for it … read all the way through:
From the ODMD order denying motion to dismiss (all “quotes” below are from the ODMD): “… An operator informed participants at the beginning of the call that the call would be recorded, and she stated expressly that the call should not otherwise be recorded for publication or broadcast …”
“… should …” is NOT prohibition of either recording, nor re-publication nor broadcast, and especially not a prohibition against making a subsequent new art: a written transcript, sort of like a 2-dimensional photograph of 3-dimensional sculpture.
“… The Certificate of Registration expressly acknowledges that “… no claim of authorship is made to the performance of speakers not employees for hire of’ Swatch Group or Management Services …”
Swatch cannot legally make that claim for Bloomberg since the non-employees — Bloomberg and others — are not signatories to the copyright claim, in fact, it’s a round-about admission by Swatch that they copyrighted something they did not own and do not have the rights to — Bloomberg’s original “art” in Bloomberg’s participation, further subverting Swatch’s claim that Bloomberg’s recording was “unauthorized” — since Bloomberg was a contributing artist, Swatch has no superior authority to prohibit recording nor copyright any non-Swatch contributions by others.
From a Copyright statue quoted in the legal piece: “… As a general matter, under federal law, “… copyright in a work … vests initially in the author or authors of the work.” 17 U.S.c. ? 201(a) …”
Since Swatch admits they are not the author of at least some contributions to the work, they have compromised their own standing in this case.
From a Copyright statute quoted in the legal piece: “… not including the sounds accompanying a motion picture or other audiovisual work …”
Was it an audio+VIDEO conference call? If so, then all bets are off, and Swatch’s claims have no statutory support.
“… the work is considered fixed “if a fixation of the work is being made simultaneously with its transmission …”
Yet, since Bloomberg’s contribution (and presumably other non-Swatch participants) were participating LIVE, their contribution cannot be considered part of Swatch’s “fixation” of a remote transmission — for Bloomberg, it was local.
“… It is as if one who was dictating live into a tape recorder were overheard and copied at the moment of dictation. At that moment, the material has become a ‘writing,’ even if copied simultaneously, rather than a moment later …”
Except Bloomberg recorded THEMSELVES … LOCAL … LIVE!
“… Original, as the term is used in copyright, means only that the work was independently created by the author …”
Need I repeat — Swatch did NOT create the entire work, Bloomberg and others were participants.
“… Bloomberg accessed the call surreptitiously and without authorization or consent …”
Huh?
Wait a minute!
Eavesdropping, with NO participation in the contents of the broadcast “call” from Bloomberg?
Seriously?
Bloomberg are thieving sleazebags and deserve the book thrown at them (unless Bloomberg’s transcript proves to be a new artwork not owned by Swatch, but really, the only way Bloomberg got to the transcript was surreptitiously without Swatch’s permission or acknowledgement?!?)!
I now stand unconfused by the second layer of facts to which both parties appear to have stipulated.
Re: Bloomberg are thieving sleazebags
The fact that a work may contain some material that the copyright claimant did not create does not detract from the copyright claimant’s rights in the material that the copyright claimant did create.
That makes most of what you’re arguing about irrelevant (the argument that the recording included some material that Bloomberg contributed, which appears to be speculation on your part to begin with).
“I now stand unconfused” I don’t think this is true, but if it is, that makes one of us, since I’m having a hard time deciphering your post.
Also, for future reference, it’s easier to have a conversation if you “reply” to the person you’re conversing with, rather than starting a new post (although I often make this mistake when replying to the last comment in a thread).
Bloomberg recorded a private broadcast to which they were not inveited
1 – Consider the title of this article, “… Now You Might Be Able To Use Copyright Law To Stop Anyone From Recording You Ever …” and the second sentence in the intro above, “… how to use copyright law to block otherwise perfectly legal recordings …”
2 – So, on first blush, I thought Bloomberg was a participant along with Swatch in the event Bloomberg recorded, so I presumed some of the recorded content was theirs, and I wrote my initial arguments above in this thread based on that limited summation by Mike Masnick.
3 – But in subsequently reading the motion to dismiss, the judge identified that “… Bloomberg accessed the call surreptitiously and without authorization or consent …”, so I now see Mike as mis-assessing the case, and Bloomberg as the wiretapping sleazeball group they are.
4 – I reserve the right to time-shift and record for personal use anything available via the free public airwaves, thank you Sony Betamax case * (which does not apply to tapping into something NOT available over the free public airwaves).
* 1984! Ooo, see: http://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_City_Studios,_Inc.
Re: Bloomberg recorded a private broadcast to which they were not inveited
Taking Mike’s articles at face value is never a good idea.
However, I’d say that even if Bloomberg were invited to listen to the call (but not to record, republish, etc.), there would still be a potentially valid copyright claim for republishing the call in its entirety.
I don’t see how Swatch can even have a legal leg to stand on. Their recording of the meeting grants them a copyright only in that recording, not the meeting itself or anyone else’s recording of it.
I stopped reading this halfway through because it seemed that the stupidity here was relentless in its ignorance, I’m talking about those who think Swatch can’t have a copyright to this work. If you call a radio station and have a “live conversation” with them over the air guess what, that station HOLDS copyright to that broadcast. Meaning if you copied it, either through your phone or over the air on your radio, AND distribute it publicly you are in VIOLATION of their copyright. You may not LIKE this, but that’s irrelevant to its standing as law. If this example has been brought up I apologize, but some further light needed to be shed on this.