Ehhhh... Ok. We need to apply the same critical thinking to this story (as much as we like it) as we do to the other stories that appear in techdirt and look beneath the surface.
Yes, EMI knew in certain circumstances that releasing free music can increase sales. That does not mean that releasing free music increases sales in all cases. That would require further study which doesn't seem to be referenced in this article.
Today we see studies that show at least a correlation between piracy, free releases, and increased sales, so we are looking at these emails from that perspective.
So honestly, I don't see this as an example of a smoking gun.
I think the fair use claim is fairly strong, but whether it's technically infringement isn't the important point. What losses or harm have the game's creators suffered from someone else effectively giving them free promotion? I'd argue absolutely none. Contrast that to the harm from portraying themselves to potential customers as copyright bullies attacking others in the gaming community who aren't even direct competitors. Sound pretty damn stupid to me.
Really? Which fair use claim do you feel applies? I was unable to think of one.
But that it was copyright infringement was the point of my statement, in answer to the person who thought there wasn't any. Honestly, I agree they seem to have handled it poorly. I would think they would have granted the company a limited copyright and used the good will to suggest that the company actually license or sell their game as part of the product. That way both groups make money.
However, just because I think that's better doesn't mean the copyright owner thinks it was. They could have gotten badly burned on other deals they made. They might not like the people who have the kickstarter. Their religion may prevent them from profiting from their product. They might be contracturaly obligated to the original artist to prevent others from using the art. I don't know. The truth is that we don't have laws to prevent people from being assholes. We can choose not to do business with them, to encourage others not to do business with them, to make fun of them, and all sorts of other options. But the truth is that they do seem to have the copyright that they are claiming, as opposed to all the news reports on groups who don't have a valid copyright but still file a DMCA takedown request.
In this case, I'm glad to see the problem was quickly resolved. I would have wished that the company had contacted the android joystick maker first, rather than open a DMCA takedown.. but at least this time they seem to have the right to request a takedown. Now all we need to do is get the DMCA repealed.
Brand Confusion has to do with Trademark, not Copyright. Copyright has to do with who has the right to make copy's of a particular work. We have exceptions for fair use, but I'm not sure that applies to this case. I also don't feel that the use here was transformative. Indeed, I feel they were using peoples enjoyment of the games displayed on their console to better their chances of getting money.
Also, I don't agree you can use a screenshot of mario to sell game controllers without permission from the copyright holder. Until the copyright laws are changed, I believe that is the case. What you CAN do is screenshot (or copy the cover or many other things) mario if your selling the Mario game you bought before, because you have a right to provide an example of a work as part of selling it.
I suspect that if I were to take screenshots of a video game and then used them to advertise my own product that has nothing to do with that video game then there would be a copyright violation for the artwork that appears inside the video game (leaving aside trademark for a moment, which would be a different matter).
Remember, the graphics inside of a game are also copyrighted. While you could draw your own plumber, if you screenshot Mario and put him on a poster to sell tampons you have performed a copyright violation.
That's right, the government makes the laws that do or do not protect people from revealing their corruption.. and the citizens elect the politicians who make these laws and keep sending them back to washington. Remember, while the citizens respect for congress in general is poor, they are normally quite for their own congressmen.. It's the REST of those guys who are the problem. :D
He had no choice to do what he did through the channels he chose. The reason behind this is simply that nobody in the Government would listen to him or believe him. In an agency where ethics are supposed to be upheld at the highest level, he saw numerous ethics violations beimg committed. He quite possibly used up all his resources before using the last ditch effort to get the message out that is the internet.
None of which is protected under the whistle blower law, which is what this article was about. The whistleblower law, and in this case the more important military whistleblower law, clearly delineate what they protect and neither the civilian nor the military laws protect someone giving information to a foreign national.
As the details of the case come out we may well see arguments as to what other options he had available. It won't stop the destruction of his military career... because he definitely violated the USMJ no matter how well intentioned he was or how few choices he felt he had.
And, of course, this raises another issue. It states that Bradly Manning clearly thought he was informing on illegal actions of the government. But what about the rest of the thousands of documents that didn't contain information on illegal actions of the government?
Let us say the chief of police in a city commits murder and covers it up.. and the documents are inside a computer at the police station. I can still get in trouble if I grab ALL the information in the police computer (including private information about officers and citizens) and give it to someone else instead of just what is needed to reveal what happened. Of the documents that Bradley leaked, many were embarrassing without showing illegal activity.
He had choices on how he released the information.. some of them might have seen less of a chance that the information gets out (such as reporting it to the inspector general or a congressman he trusted) but even if he did he chose to give ALL the documents to a foreign national. That's sort of the definition of espionage even if we feel that he was justified about telling someone about specific actions.
And Mesonoxian, please point to the part of the USMJ that says it's unlawful to order someone not to release classified documents to the public? You will find it allows you to reveal unlawful activities to Congress, your chain of command, and to the inspector general. I think you'll find that the people charging him DO know the USMJ... you just don't like what the USMJ says.
If Manning believed that information he passed contained constitutional violations by the government, wouldn't it follow that the orders to keep the information secret would be unlawful? And if that was the case, wouldn't Manning be obliged to disobey that order, since following an unlawful order is also a court martial offense?
It depends on the order. If the order is not to tell the inspector general, congress, or someone in his chain of command then it would be an unlawful order. If the order is to not give the secret to a foreign government or foreign national, then it would be a lawful order. You can't just stop at ordered to keep it secret. You have to include keep it secret from whom.
Under the uniform code of military justice, an order is lawful unless there is an exception written into the UCMJ. My understanding is that there is no exception allowing military personnel to leak classified documents of our governments constitutional violations to a foreign national or government.
The answer is never. The Uniform Code of Justice always applys. This is also the rules that allow a superior officer to shoot you for dereliction of duty or failure to obey a command during a time of war.
Honestly, I'm rather surprised that Mr. Manning wasn't charged with Espionage given that he stole classified documents and passed them to a foreign national. Given how many documents there were I doubt he had time to read them all and make sure they didn't have any military secrets or anything that would endanger troops.
But here is the thing.. If I choose to break the law because my moral code says it needs to be broken, then I expect I will also be charged with a crime. We do not normally allow an individuals moral code to allow them to break the law, there are to many variances to consider that a good way to promote justice.
If my moral code says it's ok to driver faster than the speed limit it doesn't get me out of a traffic ticket. If my moral code says it's ok to shoot a girl for going to school on a bus it doesn't get me out of murder charges. If my moral code says it's ok to use harsh capital punishment on my child it doesn't get me out of child protection laws being used to put me in jail.
At some point, I.. like every other human being.. has to decide where it's important to take a stand and where it's not. Bradley Manning found his point and chose to make his stand there. This doesn't get him out of punishment for how he went about doing it.
I know that I don't want political parties sifting through classified documents and deciding what to whistleblow on to best get their candidate into office.
To me, the best answer is to change how we classify documents and make government more open. But under the laws now I can't see how Bradley Manning can avoid some level of punishment to prevent worse results later on.
Ok folks, a Court Martial is not the same thing as a federal court. Bradly Manning is being court martialed and may, indeed, end up in jail for the rest of his life... but the president would have to change the Uniform Code of Justice to affect that case.
To the best I can find out, the law that covers Bradly Manning is 10 USC § 1034 ( http://www.law.cornell.edu/uscode/text/10/1034 ) Please note that this doesn't let you talk to whomever you want to, it limits you to the chain of command, the inspector general, and congress.