First, the Cablevision ruling in the 2nd Circuit did NOT say that buffer copies are not infringing. Instead, it said that the specific buffer copies at issue, which comprised "no more than than 1.2 seconds of programming [audio visual works of significant length] at any time" were not infringing.
The Cablevision ruling on this issue was very fact specific and the court specifically did not address larger longer lasting buffer copies, stating that "other factors not present here may alter the duration analysis significantly."
Second, while one may congratulate Dr. Shivendra S. Panwar on his articulation of the idea that he refers to as Streamloading, it does not seem to be a terribly new idea. It sounds a lot like a variation of the notion of "locked content" of the sort cited to in Footnote 13 the following Copyright Office rulemaking, which states:
"The Office understands that there may be other
so–called ‘‘locked content’’ models which may
involve the initial distribution of significant
quantities of data to a recipient, yet such data may
not satisfy the statutory requirements to be
considered a phonorecord until subsequent
distribution of the remaining essential data. In such
cases, there would be no DPD until all of the
required data has been delivered." http://www.copyright.gov/fedreg/2008/73fr40802.pdf
Dr. Shivendra S. Panwar's questionable claims about discovering the idea that he refers to as Streamloading do not undercut the concerpt's legitimacy. It does appear that deliveries of such locked content, AKA Streamloading, that do not result in perceptible copies (of any portion of the work in question) until delivery of remaining essential data, would not be considered infringing reproductions of copies under current law.
It is a little too early to say that "the metadata story is the much bigger one." Once more, it seems that the stories are intimately related. The alarming scope of warrants that the FISA court is willing to secretly approve IS the story. It is not clear that aspect is unique to the metadata warrant.
It seems that the metadata warrant for Verizon Business metadata constitutes ONE request.
Under PRISM it appears that there were 1,856 requests last year alone.
It is far from clear what the scope of each one of the 1,856 requests entailed. To the extent one feels the need to treat the two stories separately, the PRISM story could easily trump the metadata story in scope and importance.
On a related front, what is the rationale for routinely HIDING out_of_the_blue's comments?
While I don't know who initiates a comment being HIDDEN (i.e. flagged), it just seems odd to routinely do so in the context of what is 1) a very interesting and important topic; and 2) a story about revelation and opening debate on issues hidden from the public.
I realize that HIDING his comments doesn't prevent anyone from clicking through to read them, but as I said it just seems odd. And, for those who say his comments are repetitive -- that is true but the more the comments are HIDDEN, the more reason he has for repeating himself.
At first blush, the companies' denials seem especially carefully worded. I hope folks who are more technologically knowledgeable than the general public parse the company's words carefully. To my mind, Techdirt and its readers have a role to play in that regard.
Mike states: "here it looks like he was flat out lying directly to Congress. Usually, Congress doesn't like that."
Unfortunately, I have little faith that congress will express any unified (effective) sense of outrage at being lied to... evidence Eric Holder's recent lies about abuses against institutions the public depends on. Even if partisanship leads some members to believe that a lie is legally a mere misleading statement, Congress needs to show more allegiance to their role as members of the legislative branch over their role as members of any party. As the people's most direct representatives in Federal government, Congress deserves not to be lied to. More importantly the people deserve not to be lied to. I'll allow that in some national security and defense matters, the public is not served by full truth being revealed at all times, but direct lies and misleading statements are out of line.
Good comment. The comment you refer to of mine is a muddled. I think it is better stated as follows (see below in CAPS). I stand by the position that the sheriff has not abused copyright, but perhaps his actions are questionable with regard to shame and forgiveness. But he was elected to the position to make such calls.
I appreciate you pointing out the lack of clarity.
I don’t think Sheriff Winder’s use constitutes abuse OF COPYRIGHT. THE MORE INTERESTING ISSUES ARE THE issue(S) regarding the roles of shame and forgiveness in Salt Lake County, rather than copyright -- an interesting discussion has ensued in the comments on forgiveness and shame. I am confident that the people of Salt Lake County are well equipped to decide whether they think Sheriff Winder’s actions are proper. There are elections and if by some strange circumstance this issue tips the polls, it may be remedied according to the will of the people. Like it or not, in terms of current copyright law, the government of Salt Lake County owns the property at issue, mug shots.
Dear JMT, I am not blind… My statement of the law is correct. I am not rageful… I respect Mike’s views on many accounts. For that reason, I have gone out of my way to see him speak on multiple occasions. I definitely disagree with him on many accounts. If my comments came off as rageful, it was not my intent. Upon review, it is a mystery to me why they should be viewed as rageful.
Although Mike often does attempt to discredit copyright, that may not have been the specific case here and that was not the point I made in my comments. Mike did misstate the law. That does not discredit him across the board but it does at least somewhat diminish his position, and the unqualified assertions made, on this issue. In my estimation, Mike can take withstand the criticism.
If “local governments shouldn't be able to claim copyright on their creations” that is far from an obvious logical assumption. It is not the law as determined by multiple elected Congresses, and as interpreted by the courts. The fact that states and localities are able to claim copyright ownership of their works is consistent with Federalism. Presumably you advocate that states should have no such rights, which would require a change in law. Good luck… I suggest there are other more worthwhile reforms to pursue in the area of copyright law.
I will not shy away from an appreciation for copyright law. It is an area of the law that has accomplished much good. It is not perfect.
I don’t think Sheriff Winder’s use constitutes abuse. That is largely an issue regarding the roles of shame and forgiveness in Salt Lake County, rather than copyright -- an interesting discussion has ensued in the comments on forgiveness and shame. I am confident that the people of Salt Lake County are well equipped to decide whether they think Sheriff Winder’s actions are proper. There are elections and if by some strange circumstance this issue tips the polls, it may be remedied according to the will of the people. Like it or not, in terms of current copyright law, the government of Salt Lake County owns the property at issue, mug shots.
I would wager you would be surprised about my positions on intellectual property law. I am knowledgeable of intellectual property law, at least more so than most. And, I am a relatively open minded person.
Today’s comments were the first I have posted. I think I may post some more. Maybe I will learn that I am wrong on several accounts and will learn more about other reasoned views. Regardless, I sincerely hope that accuracy, civility and reasoned views prevail.
My initial comment "Mike is wrong" was directed toward the statement "Of course, whether or not there's even a legitimate copyright there is a bit of somewhat unsettled law. While it's clear that works created by the federal government are automatically public domain, it's a little fuzzier when you get down to local governments."
Mike's focus on works created by the federal government was clearly (at least to me) referring to 17 USC 105. I commented further with support for the notion that Mike is in fact wrong.
Your point regarding eligibility for copyright protection based on the lack of creativity of mug shots is well taken. I would likely find myself strongly supporting your view that copyright protection may not extend to a mug shot. Since Sheriff Winder seemingly won't release the photos, I guess it is tough to argue whether the unseen photos are eligible for copyright protection.
Despite the side I would take as a policy matter (against copyright protection), I think the current law would generally find mug shots to be copyrightable.
A dedicated copyright claimant would be able to make all sorts of arguments for copyright protection, such as that make-up, facial expression and a whole host of other factors could go toward the originality and creative expression in the photograph.
Fair point asking me for my support… I offer the plain reading of 17 U.S.C. 105 and the definition of “work of the United States Government" in 17 U.S.C. 101, which is supported by every court interpretation of which I am aware, two of which are offered below.
The prohibition on copyright protection for works of the United States Government “is the law with respect to work of the United States government (17 U.S.C. § 105), but there is no such provision relating to state governments. The statute relating to copyrights, 17 U.S.C. § 102, is not restricted to private parties and there is no reason to believe that such a restriction should be implied. In fact, the opposite inference is required when only one specific governmental entity, the United States of America, is excluded from the protection of the Act.”
See, National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 495 F. Supp. 34 (N.D. Ill. 1980), Affirmed, 692 F.2d 478 (7th Cir. 1982) .
And, “section 105 of the new statute, and section 8 of the old statute apply by their terms only to the federal government, not to the state governments. Works of state governments are therefore left available for copyright protection by the state or the individual author, depending on state law and policy, and "subject to exceptions dictated by public policy with respect to such publications as statutes and judicial opinions."
See, Building Officials & Code Adm. v. Code Technology, Inc., 628 F.2d 730, 735-736 (1st Cir. Mass. 1980)
Mike, who is so often wrong in his statements of the state of current law, is right on here.
Mike should stick to making policy arguments of what he believes the law should be. It his is strong suit.
When he spouts erroneous assertions of what the law is, he does his advocacy a disservice.
As for the decision, the solution appears to be to push for protections under state statutes or state Constitutions, much like occurred after the Kelo decision on imminent domain.
You say that it is not true that "if you don't protect the mark, you can lose it"
But you then state that "Where the use of a trademark is licensed (for example, to a franchisee) without adequate quality control or supervision by the trademark owner, that trademark will be canceled." This is a generally accurate statement. The trademark owner's likely concern is that the coffee shop's use of the mark, without any quality control imposed by the band, could be considered a "naked license" which would diminish the band's right to lawfully claim the trademark.
In many such instances the prior trademark user/owner may offer a license for continued use of the mark, albeit under some sort of regimen that ensures adequate quality control or supervision by the trademark owner. The prior trademark owner may in some cases help the smaller user transition to a new brand. Often times these things work out just fine with little headache for everyone involved.
Mike, you state: “Of course, whether or not there's even a legitimate copyright there is a bit of somewhat unsettled law.” That is just not true. There is nothing “fuzzy” about the inherent copyright status of works created by local governments.
What support might you have for that statement?
Your policy arguments of what you believe should be the case do not change the current law. Offering such misinformation does not even appear to serve the goal of enactment of the position you desire.
It is true that the nature of the work, plays a significant role in whether a use is fair, but the works at issue ARE protected by copyright law.
It is also true that there are alternative policy grounds that might indicate against certain uses being found infringing. That said, I doubt the uses by the shakedown artists at issue would prevail on fair use grounds even if access to the works was provided.
Sherriff Winder is right on… As an elected representative of the copyright owning entity, he has every right to prevent works from being used in a way that are viewed as contrary to the interests of the represented community. I would wager that his invocation of legitimately held rights, and his view of how his community should act as a “compassionate society,” will win the day, and rightfully so.
I would note that even if state and local works were not protected by Federal copyright law, they would likely be eligible for common law protection, states rights and all...
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