Section 116A is the part the photogs are freaking out about.
Canada has had similar legislation since at least 1997, so if this was going to destroy the business model of photographers worldwide, you'd think it would have already happened.
You know who should be really mad about all this Game of Thrones piracy? The Top Gear guys.
Goddamnit, they were the #1 most pirated show and now their piracy throne has been usurped by a bunch of medieval yahoos who wouldn't know a Veyron from a Huayra!
Just to be sure, when people say "loser pays" they only mean the plaintiff, right? Being sued, then losing, then being forced to pay extra for the money spent suing you also seems like a recipe for abuse.
Again, at least here in Canada, it doesn't matter whether you're the plaintiff or defendant. If you lose, you typically pay some portion of the other side's legal fees.
I guess the rationale is that it's unfair that the plaintiff had to pay all that money just to protect their rights. You were the one who acted 'badly', so you should have to pay some of that.
In all this discussion over whether the 'loser pays' system is a good idea or not, no one has pointed out this: while the general rule in the US is that everyone is responsible for their own litigation, some acts contain provisions where winner can ask the court to order the loser to pay some of their costs. The Copyright Act is one of those.
Section 505:
In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.
So, to some extent, there is already a 'loser pays' system in the US when it comes to copyright law. Obviously it didn't help much in the Veoh case. I don't know the details of the case, so I don't know why that is.
Also, at least in Canada (and I assume in the UK as well) 'loser pays' almost NEVER means 'loser pays ALL of the other sides legal fees'. Even if you win, you're lucky to get 50% of your costs covered. There are exceptions to this, the big one being if the other side was engaged in vexatious or unethical conduct. But if they had a reasonable case and they argued it in an appropriate manner and lost, 50% is about as much as you can hope to get.
Notice how anyone who might want to download datapacks directly is branded a hacker
To be fair, to me the "naive attempt" line reads less as a statement of policy by the higher-ups in the Burearu of Statistics, and more a wisecrack by the poor guy in IT who got stuck with the job of writing the Javascript.
Less "everyone who wants to download the data is a hacker" and more "I'm annoyed I had to write this stupid function, but the people who sign my paychecks have demanded it".
But leaving that aside for the moment, this episode does raise the interesting question of when a modified image is "manipulated enough" by software to become a new creation in its own right.
I'm going to be nitpicky here because... well, that's just what I do. That question isn't particularly interesting at all. Most likely it wouldn't really take all that manipulation for the "remixer" (whoever is directing the software) of an image to have copyright in the new image. The standard would likely be different in different jurisdictions.
But that doesn't matter. It's possible to have copyright in a work and still have that work infringe on the copyright in another work. The real question (which I think is what most people have been discussing anyway) is: when has the image been manipulated enough that it no longer infringes on the copyright of the original image?
I said "copyright" but I guess I really should have said "exclusive license", if authors aren't really signing away copyright but only limited term rights to do certain things.
In an ideal world of equal bargaining power, there would still be an argument made that copyright protects the author, even in situations like this. Yes, an author who signs over their copyright to their publisher runs the risk of something like this happening. However, ideally the price they would have initially been paid for their copyright would compensate them for that risk.
However, we don't live in a world of equal bargaining power. We live in a world where many contracts were signed at a time where signing with a publisher was considered the only way to get your book out there. This allows publishers to convince new authors to sign crappy deals in which they weren't adequately compensated for signing away their copyright. In a way, this is almost more of a contract law problem than a copyright problem.
(And as I read it, there is no requirement that the defendant know that the person being subjected to intentional emotional distress is a minor — engaging in a vigorous “flame war” with a Maryland resident might turn out to be criminal if the username “ParentInLinthicum” turns out to conceal a teenage user.)
In that situation, if that teenager thought that being cyber-bullied was unpleasant, they're really going to dislike life after after they get charged under the CFAA for misrepresenting their age and end up in juvenile hall.
An airplane is not a public place. United owns that plane (or at least controls it) and they have the power to limit who is and is not allowed to be on it. I'm sure that somewhere in the process of purchasing his ticket, obtaining his boarding pass and boarding the plane, the blog author put himself in a contractual relationship with United whereby he agreed that, in exchange for them letting him on board their plane, he agreed to pay them money and abide by their policies.
Talk of the 9th amendment is equally pointless. The Bill of Rights restricts the government's power, not the power of corporations to include whatever conditions they like in their contracts. There do exist laws that have that effect, such as laws that prohibit corporations from adopting policies which discriminate against people on certain grounds, but the Bill of Rights isn't one of them.
It's not that I don't think this is some truly horrendous customer service on the part of United. It is. In general I think the paranoia around photography is absolutely ridiculous. Anger is totally justified here, and boycotting United makes perfect sense. I just don't think talking about the 9th amendment or having a "Is an airplane a public space?" argument makes sense.
I'm not sure I even really understand what happened.
He was taking pictures. The flight attendant told him to stop. He did, but then called her back to explain to her why he had been taking pictures.
And then... the flight attendant told the captain he had disobeyed her? Was she confused and thought his explanation meant he didn't plan to stop taking pictures? Did his explanation somehow offend her? Was she going to do that anyway, and the explanation wasn't relevant? Was it his use of the word "terrorist", as some people have theorized?
I can understand the flight attendant trying to enforce the policy. That's often the way it is when you're front-line staff. You get told the policies, and you get told it's your job to enforce them, and you don't have the authority to grant exceptions. Even if you think it's a stupid policy, you don't want to risk your job.
But I just don't understand why the flight attendant would lie. It seems so weird.
Or maybe I'm missing something really obvious here. I'm very tired, so that's quite possible.
A friend of mine with a degree in political science loves question period. He watches it all the time on CPAC (Canadian equivalent of CSPAN). Once, after a few months of hearing him talk about it, I said down to watch it with him. When it was all over, we had this exchange:
Me: Soo.... does anyone ever actually ANSWER a question during question period?
Him: Oh, fuck no.
Now, it's true that all of those are factors that can matter, but it's also true that you could answer 'yes' to virtually all of them and still be within the bounds of fair use/fair dealing.
Actually, it's not true at all. In particular, the Supreme Court of Canada has explicitly stated that the availability of a licence is NOT a relevant consideration in a fair dealing analysis:
The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act’s balance between owner’s rights and user’s interests.
At first glance, this doesn't really seem all that awful to me. One key part that no one is talking about is the first part: "If substituted service of citation is authorized under the Texas Rules of Civil Procedure"
ie. You have to already be at the point where the court is allowing you to use "substituted service". I'm not familiar with the Texas rules of civil procedure so more research would be necessary before I could say anything definitive but usually that doesn't happen until you've tried very hard to serve someone documents in the traditional methods.
So what this is really saying is that if you've tried all the normal methods of service, and you've convinced the court that the person cannot be served (perhaps because they're dodging service), then the court has the discretion to allow you to serve them through social media if certain conditions are met. Courts in many jurisdictions already have wide discretion in what kind of "substituted service" they'll allow. There's an eHow articles on how to service divorce papers through a newspaper advertisement.
The student's use of the theme song is clearly an infringement of the copyright in the Fresh Prince theme song. Even if he wasn't planning to shoot up the school, he still should have been locked up for this outrageous affront to the moral standards held by all hardworking recording industry shills.
Try as I might, I just can't understand how the proponents of free software and CC licensed content rationalize their positions. I know what it sounds like they're saying, but I just can't believe they're actually saying it. Are they really saying that no one should be able to give away their work for free or pursue alternative business models? If I write a song (or a computer program) in my basement tonight, are they actually advocating that I should be required to charge a fee for it? I don't really consider myself a "content creator", but even I've put out a few small scripts and programs that I thought might be useful to others.
If your business model depends on proving a certain product, when other people are willing to provide a similar product of equal or better quality for free, then you need a new business model. Or you need to be pushing a product that's better than the free stuff. But telling creators "you aren't allowed to share your work unless you charge for it" isn't an adequate solution.
Act is available online... mostly
The Act may not have been printed, but versions of it are available online at http://services.parliament.uk/bills/2012-13/enterpriseandregulatoryreform.html
The web site isn't the best and I couldn't see a version which was clearly marked as the final version which just received Royal Assent. With that said, it looked to me like this was the most recent version: http://www.publications.parliament.uk/pa/bills/lbill/2012-2013/0089/2013089.i-vi.html
Section 116A is the part the photogs are freaking out about.
Canada has had similar legislation since at least 1997, so if this was going to destroy the business model of photographers worldwide, you'd think it would have already happened.
(untitled comment)
You know who should be really mad about all this Game of Thrones piracy? The Top Gear guys.
Goddamnit, they were the #1 most pirated show and now their piracy throne has been usurped by a bunch of medieval yahoos who wouldn't know a Veyron from a Huayra!
(untitled comment)
And yes, I realize it was mentioned in the article, I just meant it had not been brought up in the discussion in the comments.
Re: Re: Bring the British system to the US
Just to be sure, when people say "loser pays" they only mean the plaintiff, right? Being sued, then losing, then being forced to pay extra for the money spent suing you also seems like a recipe for abuse.
Again, at least here in Canada, it doesn't matter whether you're the plaintiff or defendant. If you lose, you typically pay some portion of the other side's legal fees.
I guess the rationale is that it's unfair that the plaintiff had to pay all that money just to protect their rights. You were the one who acted 'badly', so you should have to pay some of that.
Loser pays
In all this discussion over whether the 'loser pays' system is a good idea or not, no one has pointed out this: while the general rule in the US is that everyone is responsible for their own litigation, some acts contain provisions where winner can ask the court to order the loser to pay some of their costs. The Copyright Act is one of those.
Section 505:
So, to some extent, there is already a 'loser pays' system in the US when it comes to copyright law. Obviously it didn't help much in the Veoh case. I don't know the details of the case, so I don't know why that is.
Also, at least in Canada (and I assume in the UK as well) 'loser pays' almost NEVER means 'loser pays ALL of the other sides legal fees'. Even if you win, you're lucky to get 50% of your costs covered. There are exceptions to this, the big one being if the other side was engaged in vexatious or unethical conduct. But if they had a reasonable case and they argued it in an appropriate manner and lost, 50% is about as much as you can hope to get.
Wisecracking by the developer
Notice how anyone who might want to download datapacks directly is branded a hacker
To be fair, to me the "naive attempt" line reads less as a statement of policy by the higher-ups in the Burearu of Statistics, and more a wisecrack by the poor guy in IT who got stuck with the job of writing the Javascript.
Less "everyone who wants to download the data is a hacker" and more "I'm annoyed I had to write this stupid function, but the people who sign my paychecks have demanded it".
(untitled comment)
But leaving that aside for the moment, this episode does raise the interesting question of when a modified image is "manipulated enough" by software to become a new creation in its own right.
I'm going to be nitpicky here because... well, that's just what I do. That question isn't particularly interesting at all. Most likely it wouldn't really take all that manipulation for the "remixer" (whoever is directing the software) of an image to have copyright in the new image. The standard would likely be different in different jurisdictions.
But that doesn't matter. It's possible to have copyright in a work and still have that work infringe on the copyright in another work. The real question (which I think is what most people have been discussing anyway) is: when has the image been manipulated enough that it no longer infringes on the copyright of the original image?
(untitled comment)
I said "copyright" but I guess I really should have said "exclusive license", if authors aren't really signing away copyright but only limited term rights to do certain things.
It's all about bargaining power
In an ideal world of equal bargaining power, there would still be an argument made that copyright protects the author, even in situations like this. Yes, an author who signs over their copyright to their publisher runs the risk of something like this happening. However, ideally the price they would have initially been paid for their copyright would compensate them for that risk.
However, we don't live in a world of equal bargaining power. We live in a world where many contracts were signed at a time where signing with a publisher was considered the only way to get your book out there. This allows publishers to convince new authors to sign crappy deals in which they weren't adequately compensated for signing away their copyright. In a way, this is almost more of a contract law problem than a copyright problem.
Two wrongs make a right
(And as I read it, there is no requirement that the defendant know that the person being subjected to intentional emotional distress is a minor — engaging in a vigorous “flame war” with a Maryland resident might turn out to be criminal if the username “ParentInLinthicum” turns out to conceal a teenage user.)
In that situation, if that teenager thought that being cyber-bullied was unpleasant, they're really going to dislike life after after they get charged under the CFAA for misrepresenting their age and end up in juvenile hall.
Halrem Shake videos are a threat... to my sanity
Maybe the governments of Tunisia and Egypt just find Harlem Shake videos really f**king annoying. I'm with them on that one.
Being really f**king annoying isn't a good reason to arrest people though. If it was, the Internet would be a much lonelier place.
(untitled comment)
An airplane is not a public place. United owns that plane (or at least controls it) and they have the power to limit who is and is not allowed to be on it. I'm sure that somewhere in the process of purchasing his ticket, obtaining his boarding pass and boarding the plane, the blog author put himself in a contractual relationship with United whereby he agreed that, in exchange for them letting him on board their plane, he agreed to pay them money and abide by their policies.
Talk of the 9th amendment is equally pointless. The Bill of Rights restricts the government's power, not the power of corporations to include whatever conditions they like in their contracts. There do exist laws that have that effect, such as laws that prohibit corporations from adopting policies which discriminate against people on certain grounds, but the Bill of Rights isn't one of them.
It's not that I don't think this is some truly horrendous customer service on the part of United. It is. In general I think the paranoia around photography is absolutely ridiculous. Anger is totally justified here, and boycotting United makes perfect sense. I just don't think talking about the 9th amendment or having a "Is an airplane a public space?" argument makes sense.
(untitled comment)
I'm not sure I even really understand what happened.
He was taking pictures. The flight attendant told him to stop. He did, but then called her back to explain to her why he had been taking pictures.
And then... the flight attendant told the captain he had disobeyed her? Was she confused and thought his explanation meant he didn't plan to stop taking pictures? Did his explanation somehow offend her? Was she going to do that anyway, and the explanation wasn't relevant? Was it his use of the word "terrorist", as some people have theorized?
I can understand the flight attendant trying to enforce the policy. That's often the way it is when you're front-line staff. You get told the policies, and you get told it's your job to enforce them, and you don't have the authority to grant exceptions. Even if you think it's a stupid policy, you don't want to risk your job.
But I just don't understand why the flight attendant would lie. It seems so weird.
Or maybe I'm missing something really obvious here. I'm very tired, so that's quite possible.
(untitled comment)
A friend of mine with a degree in political science loves question period. He watches it all the time on CPAC (Canadian equivalent of CSPAN). Once, after a few months of hearing him talk about it, I said down to watch it with him. When it was all over, we had this exchange:
Me: Soo.... does anyone ever actually ANSWER a question during question period?
Him: Oh, fuck no.
(untitled comment)
And just to chime in, I couldn't get the pop-up to work either so maybe NP has recognized what a terrible idea this was and given up on it.
(untitled comment)
Now, it's true that all of those are factors that can matter, but it's also true that you could answer 'yes' to virtually all of them and still be within the bounds of fair use/fair dealing.
Actually, it's not true at all. In particular, the Supreme Court of Canada has explicitly stated that the availability of a licence is NOT a relevant consideration in a fair dealing analysis:
Law Society of Upper Canada v. CCH Canada Limited, 2004 SCC 13, paragraph 70
http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/2125/index.do
Doesn't seem like a big deal
At first glance, this doesn't really seem all that awful to me. One key part that no one is talking about is the first part: "If substituted service of citation is authorized under the Texas Rules of Civil Procedure"
ie. You have to already be at the point where the court is allowing you to use "substituted service". I'm not familiar with the Texas rules of civil procedure so more research would be necessary before I could say anything definitive but usually that doesn't happen until you've tried very hard to serve someone documents in the traditional methods.
So what this is really saying is that if you've tried all the normal methods of service, and you've convinced the court that the person cannot be served (perhaps because they're dodging service), then the court has the discretion to allow you to serve them through social media if certain conditions are met. Courts in many jurisdictions already have wide discretion in what kind of "substituted service" they'll allow. There's an eHow articles on how to service divorce papers through a newspaper advertisement.
(untitled comment)
The student's use of the theme song is clearly an infringement of the copyright in the Fresh Prince theme song. Even if he wasn't planning to shoot up the school, he still should have been locked up for this outrageous affront to the moral standards held by all hardworking recording industry shills.
Re:
Crap, I totally meant to say "proponents of RESTRICTIONS on free software and CC licensed content".
(untitled comment)
Try as I might, I just can't understand how the proponents of free software and CC licensed content rationalize their positions. I know what it sounds like they're saying, but I just can't believe they're actually saying it. Are they really saying that no one should be able to give away their work for free or pursue alternative business models? If I write a song (or a computer program) in my basement tonight, are they actually advocating that I should be required to charge a fee for it? I don't really consider myself a "content creator", but even I've put out a few small scripts and programs that I thought might be useful to others.
If your business model depends on proving a certain product, when other people are willing to provide a similar product of equal or better quality for free, then you need a new business model. Or you need to be pushing a product that's better than the free stuff. But telling creators "you aren't allowed to share your work unless you charge for it" isn't an adequate solution.