I feel like we need a two-tiered system within the DMCA to handle situations like this one: a notice-and-takedown system for third parties who use a service anonymously (your garden variety lay-streamer), and a notice-and-notice system for third parties who preemptively provide a service with information sufficient to identify them in case of alleged infringement (like, say, an authorized event broadcaster). Couple that with harsh penalties for any unsuccessful infringement claims and you have a system that allows rights-holders to combat whack-a-mole infringement (since the infringing user will not likely challenge the claim), but also allows anyone responsibly utilizing copyrighted content to maintain that use with safety valves on both sides [the ability to identify them if the use isn't proper and a severe disincentive for rights-holders to pursue anything but the most blatant infringement]. I'm sure it's not perfect, but it seems like it could be a lot better than what we have now.
I'm actually very much struggling to keep up with Techdirt during my prep, haha. I almost never go into the threads anymore... but I wanted to make an exception for this post. :) Thanks kindly! Just gotta treat it like a horrible, horrible full-time job for the next four weeks... oh, how I wish there was *any* intellectual property tested. Other than boring tort claims (trade secrets violations, etc.) that is.
Oh no, U.S. copyright *protection* still applies for goods brought in from other countries; we have treaties to that effect with most every nation [mostly through Berne and TRIPS]. Just not the specific first sale exception, which the courts have interpreted as only attaching if the goods originate under U.S. law.
If I weren't in the middle of preparing for the bar exam, I'd be reading Kirtsaeng right now so I could see why the hell the Second Circuit came to that conclusion. Can't wait to go back to reading about law I actually care about...
I actually haven't read the full Kirtsaeng ruling, so thanks for pointing that out. IIRC, that case still revolved around Omega-like facts, correct? The guy bought foreign textbooks and resold them to U.S. customers? If so, the goods didn't make the "round-trip" described in Omega [lawful importation by the manufacturer], so the Second Circuit shouldn't have needed to address the defendant's argument as anything more than dicta. But you're right, once it gets to the Supreme Court, all bets are off.
It could theoretically block it, or it least dangle liability over it. Things become very messy when you start having many links in the chain of title and awareness of the good's origins become shrouded in mystery to subsequent buyers, though. Right now, the chief area of enforcement in this field is when manufacturers create versions of their product for multiple regions at varying price points they believe are appropriate for those regions; they want to prevent resellers from snatching up copies in low-priced regions to flip in high-priced regions. Enforcement seems unlikely against people selling individual copies of works that aren't subject to that particularized business plan, but just having the uncertainty there is chilling enough. This is definitely an area of copyright law that needs to be vigilantly supervised to curtail abuse, and I'm not sure courts are cognizant of just how much collateral damage they might do in propping up these business models.
If everyone in the official chain of distribution were located outside the U.S., this would work. But that would mean the copyright holders would have to accept not having a robust domestic market for their goods in return for stripping away first sale rights, since the only way to purchase their goods would be by either direct import or from an unlawful domestic importer/reseller. I can't imagine that making much market sense for most companies. Ultimately, I believe they're less interested in the casual buyer's ability to resell what they bought than they are with competing against their own products as sold by commercial-scale resellers who are plucking up versions of the product meant for low-income regions to flip in high-income nations.
As soon as the manufacturer authorizes someone in the chain of distribution to bring the products into the U.S., the right of exhaustion (first sale) is triggered. That's what the Omega case spelled out. Unless the manufacturer plans to never offer their product in the U.S. and just assume everyone who wants it will import it from abroad, they'll have to accept some first sale attachment at some point.
I mentioned this in an earlier thread on the subject, but I actually think this is an interesting place where the Techdirt positions are in conflict. When the SSRC report in Piracy in Emerging Economies came out, it was championed as vindicating business model solutions to infringement rather than legal solutions. Specifically, it demonstrated that media was simply priced far too high in emerging economies, leading directly to piracy, and the solution was to make media more affordable. But if media was universally priced at levels acceptable to the most impoverished nations, its manufacturers would likely never recoup the costs of development. So the solution was to segment the markets, and price each regional offering according to what its population could afford. But if anyone can just pluck up the copies available in the cheapest market and resell them in the most expensive market, that business model is destroyed, and we've taken away one of the main methods for copyright holders to actually provide affordable options to developing nations.
No and no. In both case, you're purchased a foreign product, not manufactured under U.S. copyright and not made subject to U.S. copyright by the manufacturer itself (or someone authorized on their behalf) lawfully importing it. The only way the Chinese-made goods would be subject to first sale here in the U.S. is if the manufacturer authorized them to be brought into the U.S. for sale. I think there are some exceptions in the law for small quantities of goods purchased for personal use, but not for commercial operations (like someone independently setting up shop to buy foreign-made goods specifically to resell them to U.S. buyers).
Keep in mind that the product doesn't just need to be manufactured outside the U.S., but purchased outside the U.S. as well. If someone manufactures copyrighted media in China, but then imports it to the U.S. to sell domestically, they have consented for U.S. copyright law to govern the sale and first sale rights will attach. The only way manufacturers will be able to strip away first sale rights domestically is if they never sell their products domestically. This is less about destroying first sale rights generally and more about preserving segmented markets (where they don't want cheaper versions of their products produced specifically for third-world consumption to compete with the higher-priced versions in first-world markets, where they know the population can afford the mark-up). Not saying it can't be perniciously used, but it's not quite as dire as I think some people are interpreting.
Problem: What, exactly, is Funnyjunk "fighting off" with The Oatmeal? He specifically said he had no interest in going to court, and he's not the kind of entrenched player with lobbying clout to put ICE on the job. All he did was slam their business model using colorful language. He never accused them of a crime; at best, he accused them of acquiescence to their users' activities and dragging their feet on addressing the rampant infringement on the site. There's absolutely nothing wrong with pointing that out, even if it's not illegal.
There's a Grand Canyon's worth of difference at being "very sensitive" about accusations (from a layman who had no interest in suing, mind you -- not the government or anyone in a position to "seize" their domain) and threatening suit to stifle someone's freedom of speech. So, no. Funnyjunk ain't in the right here, and your last statement is absolutely horrifying from a personal liberty and freedom of speech standpoint. I suggest you rethink your position very carefully.
Funnyjunk's legal claims are almost entirely without merit, IMO. The false advertising claim is bullshit -- clear nominative use of the trademark. Inman probably has qualified immunity as to the defamation claim (criticism on a matter of public importance - copyright infringement on a high profile website) that he only loses with a showing of actual malice or known falsity. There might even be an anti-SLAPP counterclaim in there, depending on the jurisdiction. At any rate, I think we can all agree Funnyjunk is a scummy site, even if they operate entirely within the DMCA, and I hope they get what's coming to them from a purely business end.
I have Shameless, but as a single-track DVD audio rip that I'm far too lazy to split into segments (also, I'd have to come up with segments!), I've never heard Word, and I've been wanting an audio version of Live at the Beacon (which I bought during the initial experiment) for a while. The fact that he's giving me the Beacon audio for free is all the reason I need to pick up the other two offerings for a cool ten bucks.
Obvious fair use. Non-commercial, low-res (as displayed on Facebook), does not supplant the market for the original, etc. But technically, yes, an infringement of copyright prior to the affirmative defense of fair use. It's one of the interesting aspects of modern copyright; we violate it all day, every day, and just presume that most of the violations will pass by without incident. The whole Righthaven debacle reinforces that notion: U.S. courts may not be helpful on copyright issues all too often, but when they see copyright being truly abused, they can really lay the smackdown.
That's the overwhelming general rule, but there are some rare, wonky exceptions on the books. Presumably, this is one of them (though I confess not to know the full history of the particular painting at issue).
So while MoMA owns the actual canvas of “Les Demoiselles,” the family of Picasso, who died in 1973, still owns the image. And under existing law, the estate will continue to own the copyright until 2043.
Ridiculous, yes. But such is the state of copyright.