Creative Commons Continues To Try To Help Courts Understand What Its NonCommercial License Means

from the important-stuff dept

Over the years we've expressed some concerns about the NonCommercial license option from Creative Commons. Even as we're incredibly supportive of CC, the NonCommercial license often seemed to raise more questions than answers -- to the point that some have argued that it actually harmed CC's brand and resulted in significant confusion for how CC licenses work. There have even been suggestions that CC should drop the NC license option altogether.

To its immense credit, people at Creative Commons have appeared to take these concerns quite seriously over the past few years, doing quite a bit of work to try to clarify what NonCommercial means for the purpose of the license. Our specific concern is that NonCommercial could mean all different things to different people. If you're using a NonCommercial CC-licensed image on a personal blog and you have ads on that blog (even if you don't make much money from it) is that non commercial? If you use it in a tweet and your Twitter bio promotes your business is that non commercial?

Two years ago we wrote about Creative Commons stepping in to file an amicus brief in a case that raised some specific issues concerning a NonCommercial license. An educational non-profit, Great Minds, sued FedEx over FedEx Office shops photocopying some Great Minds works for educational entities, even though the works were licensed under CC's BY-NC-SA 4.0 license. Great Minds argued that because FedEx made money from copying, it's "commercial" and thus in violation of the license. Creative Commons stepped into that lawsuit and explicitly stated that Great Minds interpretation was wrong.

In the FedEx case, both the district court and the 2nd Circuit appeals court rejected Great Minds' interpretation and tossed out the lawsuit saying that the license in question did not limit FedEx from charging for copies. Great Minds also filed a nearly identical case against Office Depot in California, which also was dismissed, despite Great Minds claiming that this case is different than the FedEx one (specifically, it argued that Office Depot employees were "actively soliciting" schools to copy Great Minds' works). The court didn't buy it.

That case has now been appealed to the 9th Circuit (who, as we've noted all too frequently, mucks up copyright cases). And Creative Commons is back again asking the court if it can file an amicus brief again. This seems like the perfect situation for an amicus brief, given that Creative Commons certainly should understand its licenses the best. The proposed brief is well worth a read.

Creative Commons appreciates the valuable contributions to the development of open educational resources made by Great Minds, along with its use of a standard CC public license to enable broad reuse of the materials it produces. However, its interpretation of the Creative Commons license at issue in this lawsuit is incorrect. As the U.S. Court of Appeals for the Second Circuit correctly determined in Great Minds’ prior suit against another copy shop, FedEx Office, the license authorizes a bona fide non-commercial user to discharge her licensed rights by directing a third party like Office Depot to make copies at her instruction. Creative Commons welcomes and respectfully seeks a similar holding from this Court:

Under the Creative Commons “NonCommercial” license at issue, a bona fide non-commercial user may engage contractors to exercise the non-commercial user’s own licensed rights on behalf and at the direction of the noncommercial user, irrespective of whether the contractor is itself non-commercial actor.

Going into details, CC explains how Great Minds is completely misinterpreting its NC license term:

The CC BY-NC-SA 4.0 license fully authorizes the conduct that Great Minds contends on appeal is unlawful. The only licensee here is the school district. Under the terms of the license and prevailing principles of law, a school district may permissibly use Office Depot as a means by which the school district exercises its own licensed rights. The license does not restrict the school district to using only its own employees to exercise those rights; it allows the school district to engage anyone—employees and non-employee contractors alike—to do so. To establish a rule that denies a licensee the ability to use non-employee actors to exercise the rights it is lawfully entitled to exercise would contravene the plain language of the license and established precedent.

To be sure, Office Depot could not on its own initiative make copies of Great Minds’ curricular materials and sell them for a profit. In that scenario, Office Depot would not be acting at the direction of a bona fide licensee, would not be shielded by any bona fide licensee’s license, and thus would itself need to rely on the terms and conditions of the CC BY-NC-SA 4.0—including limiting its conduct to non-commercial purposes when reproducing the licensed work. But that is not what is alleged here. Instead, on the facts as pleaded, the school district has, under its license from Great Minds, engaged Office Depot to make copies and paid Office Depot for the service, just as it could have paid an employee to make the same copies at an Office Depot store. In that scenario, Office Depot is not a licensee in its own right, and its own, independent purpose is analytically irrelevant.

Hopefully the 9th Circuit follows the lead of the 2nd and agrees that Great Minds is misreading the NC part of the license. This would go a long way towards further establishing that NC licenses aren't so limiting.


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  • icon
    Gary (profile), 10 Oct 2018 @ 3:42pm

    Enrichment

    Because enriching the commons is the real purpose of copyright, the Creative Commons license is very important way to do that. I'm glad that Great Minds has not prevailed in mucking this up.

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  • identicon
    Lawrence D’Oliveiro, 10 Oct 2018 @ 3:44pm

    What I Find Particularly Fun ...

    ... is stuff with NC restrictions being posted to commercial sites like DeviantArt. And also when I point out to people buying cheap(er) “non-commercial” licences for proprietary content-creation software that they wouldn’t be allowed to post their work to DA, YouTube, Facebook etc, they get indignant.

    Do these big, important sites get a special exemption to make money off your work when you can’t?

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    • icon
      Stephen T. Stone (profile), 10 Oct 2018 @ 3:50pm

      Re: What I Find Particularly Fun ...

      Do these big, important sites get a special exemption to make money off your work when you can’t?

      Not really, but DeviantArt’s owners and operators cannot be expected to know, with the certainty of God, who truly owns the rights to every image on the site. The only way they can figure that out is by being told an image goes against the TOS, then making a determination on that issue. We should never expect DA admins to know with precognitive precision whether a given image is being uploaded by the person who made it; to do so would be tantamount to asking for DA to hold back every uploaded image until admins can figure out the copyright issue—and that would kill the entire point of the service.

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      • identicon
        Lawrence D’Oliveiro, 10 Oct 2018 @ 3:57pm

        Re: What I Find Particularly Fun ...

        ... operators cannot be expected to know ... who truly owns the rights to every image on the site.

        There is stuff posted on there with NC licences clearly marked.

        ... hold back every uploaded image until admins can figure out the copyright issue ...

        Isn’t that what YouTube’s ContentID does?

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        • icon
          Stephen T. Stone (profile), 10 Oct 2018 @ 4:15pm

          There is stuff posted on there with NC licences clearly marked.

          I can upload someone else’s photograph to DA and mark it as NC. How does that give me the rights to that image, including the right to license it for non-commercial use?

          Isn’t that what YouTube’s ContentID does?

          Yeah, and that little hellspawn of a program catches videos with copyrighted content used under Fair Use principles all the time. ContentID does not take context into account; a similar system on DA would lack that feature, too.

          If I commissioned an artist to create an illustration for me, and I uploaded that commission to my DeviantArt account with the explicit permission of that artist, should I still receive a copyright strike from DA for uploading art that I did not create? (And before you answer: If ContentID makes no room for context such as “I commissioned this” or “this is Fair Use”, neither can you.)

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          • identicon
            Lawrence D’Oliveiro, 10 Oct 2018 @ 5:08pm

            Re: What I Find Particularly Fun ...

            ContentID does not take context into account; a similar system on DA would lack that feature, too.

            So, should big and important sites get a special dispensation from copyright restrictions, just because they are big and important?

            What happened to “one law for all”?

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            • icon
              Stephen T. Stone (profile), 10 Oct 2018 @ 5:35pm

              So

              Thanks for letting me know you misconstrued my argument!

              should big and important sites get a special dispensation from copyright restrictions, just because they are big and important?

              No. My point, if you would stop being willfully obtuse about this sort of thing, is that any sort of ContentID-style program cannot be, and will never be, built with context in mind. ContentID does not care if a movie reviewer’s video about a recent film uses footage from said film in a manner consistent with Fair Use—that it uses the footage at all is enough for ContentID to make a match and take the action deemed appropriate by the rightsholder(s). The same would go for a DeviantArt version of ContentID: It would not care if an artist and the person who commissioned that artist both post the same image, only that the commissioner uploaded an image that they did not create.

              Sites both big and small would suffer from having to hold back content for the sake of running down copyrights. Any existing service would grind to a halt; imagine how quick people would abandon YouTube if they had to wait days for an upload to be officially and legally approved by Google’s legal department. The next DeviantArt, Twitter, Tumblr, YouTube, etc. would never get off the ground if the admins for that service had to triple-check who owns the copyright on a given submission before letting the submission go live. We have Section 230 precisely because sites like DeviantArt require the ability to moderate a service while retaining the ability to allow public uploads with minimal-to-no delay. To remove that protection would bring any site or service that allows public uploads—DA, Twitter, Tumblr, YouTube, Facebook, Pastebin, MEGA, Mediafire, even comment sections on blogs such as Techdirt—to a screeching, traffic-reducing, service-killing halt.

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              • identicon
                Anonymous Coward, 10 Oct 2018 @ 6:10pm

                Re:

                Please remember, you are speaking to someone who's own argument suggests that they have no right to post their own argument (because how does techdirt even know that content is there, or that they have a license that can transfer/sublicense to TD)?

                That said. I appreciate your arguments/logical-reasoning (and I hope anyone who comes after can gains some useful points of view from some of the "conversations" here).

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                • identicon
                  Lawrence D’Oliveiro, 11 Oct 2018 @ 2:11pm

                  Re: they have no right to post their own argument

                  Talk about strawmen. I thought we were specifically discussing the meaning of “non-commercial” here.

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              • identicon
                Anonymous Coward, 10 Oct 2018 @ 10:32pm

                Re:

                In theory, creators and licensees could use a unique hash to identify a license to a work and DA or other sites could incorporate the licensing hash into their "content-id" programs. Something like the way TLS certificates work to authenticate and encrypt. The content-ID matching data would include the private key for the work, and each license would have its own public key. It wouldn't address fair use very well, but it would prevent false positives and DMCA trolling better than the current system.

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                • icon
                  Stephen T. Stone (profile), 10 Oct 2018 @ 10:58pm

                  In theory, creators and licensees could use a unique hash to identify a license to a work and DA or other sites could incorporate the licensing hash into their "content-id" programs.

                  In theory, yes, that could be a thing.

                  In practice, it might not account for changes in an image such as JPEG compression (e.g., someone saves an image with slightly less compression to get around a filter).

                  It wouldn't address fair use very well

                  Which makes it pointless as far as this discussion goes. Works created with parts of other media used under Fair Use principles have just as much right to be published and be seen as the media that such works use. ContentID dings those kinds of works precisely because it cannot, and will never, account for context such as Fair Use.

                  Automated tools are nice for spamfilters. They do a shit job when it comes to media, though. Just ask Epic Games.

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                • identicon
                  Anonymous Coward, 11 Oct 2018 @ 1:39am

                  Re: Re:

                  A hash at best can associate a license with a work, but that does not confirm who the original creator was. Even if public key based, all it would prove is that the owner of the key created the hash, which s not proof that they also created the work.

                  Also, I suspect that if someone had the time and ability to actually verify the copyrights in the Content ID data base they would find wrong claims, and unproveable claims. The latter due to paper work having gone missing.

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                    identicon
                    tp, 11 Oct 2018 @ 4:31am

                    Re: Re: Re:

                    > all it would prove is that the owner of the key created the hash, which s not proof that they also created the work.

                    There is a way to test if a human created the work. It involves applying a pressure to the human and watching how much pressure that human can withstand. People who have done tons of burdensome work to create the work, can withstand higher levels of pressure than people who did not do the work. Of course other proof is also needed, like copyright notices and stuff like that, but a test is possible for checking if certain humans did tons of work.

                    > Also, I suspect that if someone had the time and ability to actually verify the copyrights in the Content ID data base they would find wrong claims, and unproveable claims.

                    If there's doubt, more burdensome tests of ownership can be done.

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                    • identicon
                      Anonymous Coward, 11 Oct 2018 @ 5:21am

                      Re: Re: Re: Re:

                      That sounds, to me, suspiciously like the definition for torture.

                      If there's doubt, more burdensome tests of ownership can be done.

                      So, if understand you correctly, you are saying that if I doubt you wrote this piece (since it sounds too stupid to be anything but a excerpt from a, fictional, work someone wrote entitle "The Fifty-Seven Most moronic ideas I could come up with") that you, as the (suspected) copyright infringer should be tortured?

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                    • identicon
                      Anonymous Coward, 11 Oct 2018 @ 6:34am

                      Re: Re: Re: Re:

                      If there's doubt, more burdensome tests of ownership can be done.

                      Just where do you find a qualified necromancer, when anybody with actual knowledge is dead, and does necromancy work when the remain have been cremated?

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                    • icon
                      Stephen T. Stone (profile), 11 Oct 2018 @ 10:34am

                      Re: Re: Re: Re:

                      There is a way to test if a human created the work. It involves applying a pressure to the human and watching how much pressure that human can withstand.

                      Did you happen to write a memo about “enhanced interrogation techniques”, by any chance?

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                        identicon
                        tp, 11 Oct 2018 @ 10:48am

                        Re: Re: Re: Re: Re:

                        > Did you happen to write a memo about “enhanced interrogation techniques”, by any chance?

                        Well, for copyright enforcement, all techniques are acceptable. Sending settlement letters is just one of the nicest ways to do it, we should thank RIAA and it's member companies for how nice people they have been. While they might be sometimes come as harrassment for people who forgot to pay the demands, at least they didn't do torture or interrogation.

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                        • icon
                          Stephen T. Stone (profile), 11 Oct 2018 @ 11:29am

                          Well, for copyright enforcement, all techniques are acceptable.

                          …fucking what

                          Are you literally saying that copyright infringement should be punished with actual physical torture of the infringer?

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                            identicon
                            tp, 11 Oct 2018 @ 1:52pm

                            Re:

                            > Are you literally saying that copyright infringement should be punished with actual physical torture of the infringer?

                            It's not a punishment. It's just a test of how human behaves when there's assumption that he did huge amount of work to create the copyrighted work. The torture part is only short time span, and only used when there's real doubt about the original author of the copyrighted work. Applying it requires two separate claims of ownership to the same underlying copyrighted works.

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                            • icon
                              Stephen T. Stone (profile), 11 Oct 2018 @ 2:05pm

                              Re: Re:

                              You have to be a troll—because only a troll would suggest waterboarding as a way to deal with copyright infringement and say they mean it. 🖕

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                              • icon
                                That One Guy (profile), 11 Oct 2018 @ 2:48pm

                                Re: Re: Re:

                                For a while I pegged them merely as a copyright maximalist, but at this point I fit them into the 'deliberate parody' category as someone who intentionally poe's copyright maximalists for whatever reason.

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            • identicon
              kallethen, 11 Oct 2018 @ 10:56am

              Re: Re: What I Find Particularly Fun ...

              What happened to “one law for all”?

              ContentID in NOT the law. It is a program that Youtube offered to the media companies to placate them. It's existence and usage is not required by law.

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        • icon
          Chris-Mouse (profile), 10 Oct 2018 @ 5:43pm

          Re: Re: What I Find Particularly Fun ...

          > There is stuff posted on there with NC licences clearly marked.

          I can take my own material, clearly marked with a CC license and upload it to a site. How is the site operator supposed to know the difference?

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        identicon
        Bill Auslanderfurchtbarliebengliegubermacherzeitl, 10 Oct 2018 @ 4:10pm

        Re: Re: What I Find Particularly Fun ...

        whether a given image is being uploaded by the person who made it

        That may be workable for any given image, but it's not sound practice when the site depends on numerous images, meaning, if "are too many to check" then that's too bad: the sit'es "business model" just isn't workable. No, doesn't matter how "deviants" want the artwork: they have NO intrinsic right to it, as the creators do to control copies. YES, I am saying that such sites should be sued out of existence, and difficulty proving contributory infringement in court is the only actual reason hasn't been.

        Nor, of course, does your notion apply at all when the given content is an obviously recent movie, labeled with right name, and so on. Any content that one has only to glance and suspect should be taken down. Sites have NO right to use content, that's THE problem, and the sitch is slowly changing, so stay tuned to Torrent Freak where it's noted that pirates are being sued and removed almost daily, unlike here on "only happy news for pirates" Techdirt.

        [This, by the way, demonstrates how easy it is to ramble while typing away as Techdirt re-writers do and make an adequately plausible case. I could knock out a dozen such in two hours, yet the four or five of them come up with one or two each per day.]

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        • icon
          Stephen T. Stone (profile), 10 Oct 2018 @ 4:22pm

          Any content that one has only to glance and suspect should be taken down.

          When will you be asking for Know Your Meme to be taken down? I mean, that whole site is about memes, which are in and of themselves derivative permutations of existing creative works typically created without the permission of the original artist(s)/copyright holder(s). And I doubt the site has the rights to host all the example images and videos of all those memes, too.

          Which meme would you go after first, I wonder? Bowsette? Bongo Cat? Arthur’s Angry Fist? Or would you go right for the throat and take down Loss.jpg first?

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            identicon
            tp, 10 Oct 2018 @ 11:47pm

            Re:

            > I mean, that whole site is about memes,

            Every site author need to be careful with their own technology, in such way that they know exactly how the tech they're using works relative to copyright laws. Once they find problems, those issues need to be fixed using some of the toolbox the author has available for him.

            > which are in and of themselves derivative permutations of existing creative works

            Then licenses are required from the content owners.

            > typically created without the permission of the original artist(s)/copyright holder(s).

            Then the whole site needs to be taken down.

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            • identicon
              Anonymous Coward, 11 Oct 2018 @ 1:02am

              Re: Re:

              Take the RIAA's site down, then. They use images without permission from the original creator.

              Double dare ya!

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            • icon
              Stephen T. Stone (profile), 11 Oct 2018 @ 10:58am

              Re: Re:

              Every site author need to be careful with their own technology, in such way that they know exactly how the tech they're using works relative to copyright laws.

              The “tech” has nothing to do with the idea that KYM is a knowledge repository vis-á-vis memes. It could run on the Wikipedia engine, a custom Wordpress installation, or even a CDN like Jekyll—that would change only how the site does what they do.

              And my point, if you would be so kind as to stop the willful obtuseness and read what I say here and said up there, is that KYM operates under the principles of Fair Use—so if you want to gut KYM of any hosted images that you merely “suspect” are infringing upon someone else’s copyright, you would end up gutting practically the entire site as a monument to copyright absolutism. What is it about Fair Use that makes you want to gut both those principles and any site that extensively relies on them?

              Then the whole site needs to be taken down.

              How do you feel, then, about DeviantArt? That site is full of derivative fan art created without the permission of the original IP’s owner(s). Everything from Sonic the Hedgehog to My Little Pony to Death Note to the MCU has fan art on DA; how much of that should be deleted—and how much do we punish the artists who made those fan works—to appease the corporations that own the rights to those franchises?

              What about Twitter? Memes get passed around there all the time. How much of a delay should there be on the potential publication of a tweet with an image on it so that Twitter admins can properly track down the source of that image and whether a Twitter user—let’s say that user is you—has the rights to post it? (And judging by your absolutist view that KYM should be taken offline, you seem to despise the idea of Fair Use, so you do not get to rely on a Fair Use defense here.)

              Tumblr and YouTube have plenty of parodies of Bongo Cat on the site. How many of those parodies should be deleted, and how should the people who posted them be punished, because all of those parodies technically violate the copyright owned by Bongo Cat’s creator—even if said creator explicitly approves of and encourages those parodies?

              I may sound as if I am JAQing off, and in a sense, I am. But each question here gets to a larger point: Copyright absolutism would grind the Internet to a halt. It does not make exceptions for Fair Use, it does not care if the creators approve of parodies and derivative works; it is absolutism because it is absolute—that the law must be applied equally in all situations, with no exceptions. That means parodies would be illegal derivative works…if they were not explicitly protected by the First Amendment. That means works created with Fair Use principles (e.g., video reviews of other works such as movies) would be illegal derivative works…if the courts never recognized those principles and allowed them as a defense.

              Your copyright absolutism would see any work that is not 100% the creation of a given artist eliminated from the Internet. Your absolutism would chill the speech of every fan artist in the world—would make them afraid of so much as posting even a scribble that looks like a character from their favorite show or movie, lest they be accused of infringement. Your absolutism would punish people for daring to celebrate that which they love and poking fun at that which they despise.

              That kind of thinking does nothing to help anyone but the corporations that control the creation/distribution most of our pop culture. It makes you a puppet of companies like Disney, which would turn your absolutist dream into a reality if it could get away with doing so. I daresay it makes you something of a sociopath, too; only someone without the capacity for empathy would want to make others suffer for a transgression that ultimately harms no one.

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              • identicon
                tp, 11 Oct 2018 @ 11:23am

                Re: Re: Re:

                > Your copyright absolutism would see any work that is not 100% the creation of a given artist eliminated from the Internet.

                Yes. The actual mechanism how this happens isn't actually copyright laws. Instead, "unfair competition" is the keyword here. When your competitors have tried their best competing against you, and failing to do it, they have no option but to check what exact tools you're using to get significantly better quality output as a result. Once they find out that the whole site is based on nothing else than copyright infringement, which artifically inflates the quality of your work, they can just sue you for unfair competition and mention copyright infringement as the reason.

                This unfair competition is nice, since it doesnt require that _you_ are the owner of the copyright. Instead, anyone who gets damaged by your infringements can raise unfair competition when they notice that their competitors are using illegal means to compete in the marketplace.

                Same issue is with uber and their idea that they don't need to follow existing taxi regulations about limitations about what kind of cars can be used or who has permission to do it.

                But bigger issue here is that there's tons of different kind of illegal means how to get your product look better than it actually is. But these illegal means should be eliminated from the marketplace, because basis for their existence is not based on good business principles, but instead they rely on practises which break humans, cause damage to communities, starts riots, put governments to trouble, make countries unstable, distrupt food supply or any other practises which are deemed unacceptable. The practises are all marked illegal for a reason, and questioning those decisions isn't proper way to do business.

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                • identicon
                  Anonymous Coward, 11 Oct 2018 @ 11:32am

                  Re: Re: Re: Re:

                  And just how many images on your site are similar to other images, and the result of conscious or unconscious copying.

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                  • identicon
                    tp, 11 Oct 2018 @ 12:15pm

                    Re: Re: Re: Re: Re:

                    > And just how many images on your site are similar to other images, and the result of conscious or unconscious copying.

                    unconscious copying is quite interesting aspect of this. People who spent 20 years working for single company might have significant problems with filtering out information which comes from the company. This filtering is necessary even though it requires debugging human brains and making modes to humans which can distrupt normal functioning of people's thought processes. There is danger for the particular human to be flagged infringing, even though his only problem was that he worked for the same company for long period of time. But marketplace doesnt think like that. When they regognize the content as being copied from the company, they will automatically flag those people as copyright infringers, even though nothing could be further from the truth. This is why switching from one long time job to another is difficult process and requires significant investment in time and resources.

                    Unconscious copying _can_ be difficult to detect and fix before it causes actual damage. Happly companies have good tools to deal with this kind of problems, once they've been in the marketplace for longer time.

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                    • icon
                      Stephen T. Stone (profile), 11 Oct 2018 @ 12:33pm

                      Unconscious copying can be difficult to detect and fix before it causes actual damage. Happly companies have good tools to deal with this kind of problems, once they've been in the marketplace for longer time.

                      If I create a story that has broadly vague similarities to, but does not directly rip off, the Harry Potter franchise, what should be done to me as punishment for the “unconscious copying” of any tropes used by J.K. Rowling? For that matter, what should be done to her for the same kind of “copying” she did when she created Harry Potter—and what should be done to the authors who wrote the books that inspired her for the “unconscious copying” they did from the books that inspired them? I could keep going, but hopefully you see my point. (And if you do not, I will henceforth assume you are a willfully obtuse troll and drop you like a bad Netflix series.)

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                      • identicon
                        tp, 11 Oct 2018 @ 12:57pm

                        Re:

                        > If I create a story that has broadly vague similarities to, but does not directly rip off, the Harry Potter franchise, what should be done to me as punishment for the “unconscious copying” of any tropes used by J.K. Rowling?

                        If you're a school teacher whose job was to read harry potter to children for last 20 years, then you might remember the storylines too well to avoid mentioning the similarities while you write your own fiction stories about your experiences with teaching children and how the school environment changes children. There has been stories like this, where star trek fans have created fan stories with phasers and transporters, vulkans and klingons. At some point the authors of these ripoffs need to realise that they're focusing too much on single franshise and they should try to mix more elements from other emerging phenomenons to their products. Eventually the hints about their fafourite tv shows will disappears from the toolbox they're using and they can create original products..

                        Of course the laws are there for a reason. Some companies just do not care, and they try to enter the market by creating large enough simimlarities via cloning or copying. And laws will be used to prevent this practise. But the determination will need to be done case-by-case basis and focus on the elements that give rise to the copying.

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                        • icon
                          Stephen T. Stone (profile), 11 Oct 2018 @ 1:47pm

                          Let me give you a proper example here. I recently watched a piece of media that featured a fictional story about a group of young people learning about magic and getting into various misadventures at a school where young magic users go to learn and improve their magic skills.

                          Here is the Big Money Question: Am I talking about a Harry Potter film or Little Witch Academia?

                          My point, which you once again willfully avoided, is that culture builds from itself. Little Witch Academia was likely inspired in part by the success of Harry Potter—as well as other anime shows about young magic users and young women getting into misadventures thanks to supernatural powers. In turn, Harry Potter was inspired in part by various stories that J. K. Rowling had read or heard over her lifetime, and the stories that inspired her were also inspired in a similar way, and so on.

                          Break stories down to bare-bones components and basic terminology, and lots of stories look similar to one another. I’ll give you other examples:

                          • A man known for committing acts of violence protects people he cares about from those who would hurt those people, eventually sacrificing himself to save them. Am I talking about Logan or Shane?

                          • A group of ragtag misfits come together to help each other survive their lives on (and try to make a living with) a partially run-down spaceship. Am I talking about Firefly or Cowboy Bebop?

                          • A group of vampire hunters look to slay the dreaded Dracula and end his reign of terror. Am I talking about Castlevania, Van Helsing, or Blade: Trinity?

                          You want to stand for copyright absolutism and the idea that even “unconscious copying” should be punished. But your idea seems to hinge on the notion that all fictional stories are created in a vacuum within which no other fictional stories exist. Under that logic, no one could ever make an “original” fictional story unless they had never read, heard, or seen any other fictional story in existence—and even that does not account for any coincidental similarities to other existing stories that said “original” story will have. To call such logic “ludicrous” would be an understatement.

                          So I pose the question to you again: If I create a story that has broadly vague similarities to, but does not directly rip off, the Harry Potter franchise, what should be done to me as punishment for the “unconscious copying” of any tropes used by J.K. Rowling? In other words, how should I be punished for using the generic building blocks of all stories to create my own stories if my stories coincidentally resemble, in broad strokes, a pre-existing story?

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                          • identicon
                            tp, 11 Oct 2018 @ 2:04pm

                            Re:

                            > But your idea seems to hinge on the notion that all fictional stories are created in a vacuum within which no other fictional stories exist.

                            This assumption is true. Professional people who create copyrighted works, need to protect themselves from the influences of other copyrighted works. While avoiding some products might be difficult, the more accurate and professional people have _huge_ trouble following the rule carefully enough. People who are doing graphics works are basically prevented from "watching" competitor products so that they don't accidentally copy elements from the competitors. Microsoft is calling this practise "glance" property, i.e. their employees are only glancing the competitor products accidentally even though they try hard to avoid looking at the competition.

                            This "glance" property might be too strict rule for small companies, but larger companies need to be more careful and market leaders have strict rules how much "glancing" they're allowed to do before the person needs to be moved to other tasks where there isn't danger of copying competitor copyrighted elements.

                            Copyrights are really very strict construct. Professional people need to be very careful with it, and the requirements for strictness are growing the nearer the activity comes to the world leading copyrighted work creation.

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                            • icon
                              Stephen T. Stone (profile), 11 Oct 2018 @ 2:13pm

                              Re: Re:

                              You refused to answer the direct questions I posed to you. You continued advocating for the idea that anyone who happens to create a work vaguely similar to/partially inspired by at least one other pre-existing work should be punished for doing so. You said above that physical torture is an acceptable method of dealing with copyright infringers.

                              I conclude that you are a troll. You can kindly fuck off.

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                    • identicon
                      Anonymous Coward, 11 Oct 2018 @ 12:35pm

                      Re: Re: Re: Re: Re: Re:

                      Nice dodge, now answer the question, and for bonus points, give incontrovertible evidence that those images are your works.

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                      • identicon
                        Anonymous Coward, 11 Oct 2018 @ 1:17pm

                        Re: Re: Re: Re: Re: Re: Re:

                        > give incontrovertible evidence that those images are your works.

                        The web page has my copyright notice. The source code also has the same notice. It would be illegal to change those notices. The github logs give exact date when those copyright notices have been added to the project at the beginning of the project. Github also has history of what kind of changes the project has seen during the development. The resulting project can reproduce the images in the web page. Thus the images are a result of work by the person who added the copyright notices, which happens to be me.

                        We didn't need to go far enough to apply pressure to the human, since there was no other claim of ownership of the elements.

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                        • identicon
                          Anonymous Coward, 13 Oct 2018 @ 12:13am

                          Re: Re: Re: Re: Re: Re: Re: Re:

                          Github? You mean that Open Source thing you loathe with every fiber of your being because it's cheap?

                          Give me a fucking break.

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                • icon
                  Stephen T. Stone (profile), 11 Oct 2018 @ 11:36am

                  …wow. “Unfair competition” as a defense for copyright absolutism? Now I’ve fuckin’ seen everything. 🤣

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                • identicon
                  Anonymous Coward, 11 Oct 2018 @ 12:29pm

                  Re: Re: Re: Re:

                  You are saying (again) that your own posts should be taken down?
                  Because you definitely did not make up all those words, or the symbols in the alphabet (and thus it's not 100% your creation)

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        • identicon
          Anonymous Coward, 10 Oct 2018 @ 4:28pm

          Re: Re: Re: What I Find Particularly Fun ...

          So, your answer to copyright infringement is to prevent artists publishing their works unless they can get a publisher to do so for them. That is how to kill the flowering of published works enabled by the Internet.

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        • icon
          Gary (profile), 10 Oct 2018 @ 5:08pm

          Re: Re: Re: Obvious, Simple

          I love how simple answers spring forth. "Obviously Infringing?" People can't easily spot infringement and computers sure as hell don't know the difference between fair use and copyright. (Or ownership.)
          Your "Obvious" solution is to hold back everything transmitted - everywhere - until it is vetted as OK. By a lawyer.
          Hollywood movies do this, they have to be vetted for copyright before they are released. It costs thousands of dollars to do the check.
          So, effectively, the internet (And the US postal system) would shut down. You have just solved the problem - no more infringement!

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        • identicon
          Anonymous Coward, 10 Oct 2018 @ 5:22pm

          Re: Re: Re: What I Find Particularly Fun ...

          Please prove you have a right to use English (because you "have NO intrinsic right to it")

          Thanks

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    • icon
      Gary (profile), 10 Oct 2018 @ 3:56pm

      Re: What I Find Particularly Fun ...

      Lawrence, going by your version of things wouldn't that mean that it would be impossible to electronically transmit a NC image in any way because someone at some point is getting paid to host/transfer content?

      And no luck using the post office mate - Those stamps ain't free!

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      • identicon
        Lawrence D’Oliveiro, 10 Oct 2018 @ 4:00pm

        Re: What I Find Particularly Fun ...

        ... would be impossible to electronically transmit a NC image in any way because someone at some point is getting paid to host/transfer content?

        That is the same argument used for owners of proprietary content to put pressure on ISPs and the like to police their users, is it not?

        In other words, all I’m arguing is, copyright is copyright. Whatever is good enough for one licence is good enough for another.

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        • icon
          Gary (profile), 10 Oct 2018 @ 5:31pm

          Re: Re: What I Find Particularly Fun ...

          In other words, all I’m arguing is, copyright is copyright.

          No, I serious;y don't understand what you are arguing. You are saying the corporations shouldn't be able to profit in any way from NC works. (I think.) So therefore they can't charge anything at any stage, for anything.
          I asked how that would affect using the post office to mail a NC work - and you pointed out that ISP's should police themselves? Not following, sorry.

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          • identicon
            Lawrence D’Oliveiro, 11 Oct 2018 @ 2:15pm

            Re: What I Find Particularly Fun ...

            You are saying the corporations shouldn't be able to profit in any way from NC works. (I think.)

            Nobody is allowed to profit from NC works (apart from the copyright holder(s), obviously). Therefore, there can be no special exemptions for corporations. “One law for all.”

            So therefore they can't charge anything at any stage, for anything.

            Not for anything NC. Otherwise, where do you draw the line?

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            • icon
              Gary (profile), 11 Oct 2018 @ 6:48pm

              Re: Re: What I Find Particularly Fun ...

              So for clarification: You are actually saying that an artist could not take their own NC artwork and mail it to a friend, because the post office takes a profit off the service.
              Cheers!!

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              • identicon
                Lawrence D’Oliveiro, 11 Oct 2018 @ 8:58pm

                Re: because the post office takes a profit off the service.

                You would have a point ... if the Post Office were making copies of the work.

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                • icon
                  That One Guy (profile), 12 Oct 2018 @ 12:35am

                  Re: Re: because the post office takes a profit off the service.

                  Nobody is allowed to profit from NC works (apart from the copyright holder(s), obviously). Therefore, there can be no special exemptions for corporations. “One law for all.”

                  By your own arguments that's irrelevant. They may not be making copies, but they are most certainly a) making a profit, and b) doing so in a way that involves a CC-NC work. They are getting paid to transfer a CC-NC work, so unless you care to redefine what seems to be your position of 'no use by/presence on any platform/company making a profit' then the post-office would most certainly qualify.

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                  • identicon
                    Lawrence D’Oliveiro, 12 Oct 2018 @ 3:51pm

                    Re: What I Find Particularly Fun ...

                    By your own arguments that's irrelevant.

                    In that case, just to repeat my own arguments:

                    So, should big and important sites get a special dispensation from copyright restrictions, just because they are big and important?

                    Need I remind you about that phrase copyright restrictions again?

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                    • icon
                      That One Guy (profile), 12 Oct 2018 @ 10:40pm

                      Re: Re: What I Find Particularly Fun ...

                      That... doesn't really answer or address anything.

                      So just to be clear, is that a 'yes, the post office would also be prohibited from involving themselves in NY-CC content, because they make a profit', or 'no, they would not despite the fact that they make a profit, and here's why they get a special exception from my interpretation...'?

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                • icon
                  Stephen T. Stone (profile), 12 Oct 2018 @ 12:41am

                  Your words:

                  Nobody is allowed to profit from NC works

                  If the Post Office accepts money in exchange for mailing (i.e., distributing) a copy of an artist’s NC work to a friend of theirs, the Post Office profits from the distribution of that work. Under the logic and arguments you have put forth, that commercial profit would make the Post Office legally liable for infringing upon the NC license.

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    • identicon
      Anonymous Coward, 10 Oct 2018 @ 7:45pm

      Re: What I Find Particularly Fun ...

      Do these big, important sites get a special exemption to make money off your work when you can’t?

      I don't suppose you're familiar with Section 230 of the CDA? If you are, would you please explain to me how DeviantArt would acquire liability regarding copyrighted work a third party posted, regardless of whether or not DeviantArt made money on it?

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      • identicon
        Lawrence D’Oliveiro, 11 Oct 2018 @ 2:22pm

        Re: What I Find Particularly Fun ...

        ... would you please explain to me how DeviantArt would acquire liability ...

        That’s not relevant. What is relevant is, should they be allowed to distribute stuff that was put under an NC licence by the copyright holder, as part of their business model?

        If a private person like you or me is prohibited from copying or distributing such material for profit, why should the big, important corporations get a special dispensation?

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        • icon
          Stephen T. Stone (profile), 11 Oct 2018 @ 3:30pm

          That’s not relevant.

          It absolutely is, and I’ll tell you why.

          If a private person like you or me is prohibited from copying or distributing such material for profit, why should the big, important corporations get a special dispensation?

          Nobody is saying DeviantArt should be let off the hook for copyright infringement—but the rest of us are essentially saying that DA should not be held legally liable for any infringement that takes place on DA and does not involve a DA employee directly facilitating infringement.

          DA admins cannot know if any given image out of the hundreds of hundreds of images uploaded each day is infringing upon someone’s copyright—at least, not with the certainty you seem to think they should have in that regard. They should not be held liable if they discover a case of infringement unless they do nothing about it. And if they do nothing about it, the context of such infringement must be considered (e.g., whether it falls under the principles of fair use) before determining whether DA could be sued.

          The same principles that apply to DA in this situation would also apply to YouTube, FurAffinity, any given Mastodon instance, any given Discord server, and all other sites that allow public uploads/submissions, regardless of size. Nobody is asking for DA to be given a pass on this. What we’re asking is why DA should be treated worse than, say, 4chan.

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          • identicon
            Lawrence D’Oliveiro, 11 Oct 2018 @ 4:45pm

            Re: What I Find Particularly Fun ...

            Nobody is saying DeviantArt should be let off the hook for copyright infringement ...

            Good, we agree on that.

            So, if copying/distributing NC material for profit would be copyright infringement for a private individual like you or me, shouldn’t it also be copyright infringement for companies like DeviantArt or FedEx?

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            • identicon
              Anonymous Coward, 11 Oct 2018 @ 5:39pm

              Re: Re: What I Find Particularly Fun ...

              Not unless DA employees knew for sure it was infringement and let it go anyway.

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              • identicon
                Lawrence D’Oliveiro, 11 Oct 2018 @ 6:20pm

                Re: What I Find Particularly Fun ...

                Not unless DA employees knew for sure it was infringement and let it go anyway.

                So you agree that commercial services like DeviantArt, YouTube, FedEx etc should not be copying/distributing such material?

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                • icon
                  That One Guy (profile), 11 Oct 2018 @ 6:50pm

                  Re: Re: What I Find Particularly Fun ...

                  Okay, your position here is getting harder and harder to take seriously if you're going to set the bar that low, and I'm getting a wicked sense of deja vu regarding the attempts in the past to claim that 'pirate' sites were not only engaged in copyright infringement, but commercial copyright infringement, because they dared to run ads to support the sites.

                  Under the interpretation you seem to be advocating for a CC-NC license would be treated as an instant disqualification from basically any platform that makes money(so pretty much all of them). Far from increasing the spread of such content under said license it would dramatically limit it's use and availability, as the options available for it's use would be limited to non-profit platforms run by individuals and/or groups willing to host/copy it on their own dime.

                  FedEx was not making money from the content, they were making money from the physical act of creating copies of it, just like they would from any other job where they were paid to create copies, that being part of their business.

                  So, if copying/distributing NC material for profit would be copyright infringement for a private individual like you or me, shouldn’t it also be copyright infringement for companies like DeviantArt or FedEx?

                  Faulty comparison. The individual in that question would be making money from the work itself. DeviantArt would be a company that happens to make money, providing a platform where the work can be hosted. If DA posted the work themselves and monetized it directly then sure, they'd be on the hook for violating the license, as they would be making money off of it, rather than merely while it's on their platform.

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                  • identicon
                    Lawrence D’Oliveiro, 12 Oct 2018 @ 3:54pm

                    Re: What I Find Particularly Fun ...

                    Under the interpretation you seem to be advocating for a CC-NC license would be treated as an instant disqualification from basically any platform that makes money(so pretty much all of them).

                    Notice how the “NC” part rules out the “makes money” part.

                    So, yup.

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                    • icon
                      That One Guy (profile), 12 Oct 2018 @ 10:44pm

                      Re: Re: What I Find Particularly Fun ...

                      So you are trying to kill it, good to have that cleared up.

                      Guess all I can say is hopefully the third court also disagrees with your interpretation, as going with it stands to make any content under that license toxic to pretty much any platform available

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    identicon
    Bill Auslanderfurchtbarliebengliegubermacherzeitl, 10 Oct 2018 @ 3:57pm

    To BE copyrighted it MUST have commercial value TO creator.

    You can't give away AND keep control. That's one line that could be taken with this.

    Even as we're incredibly supportive of CC,

    Hey, I'm an "incredible" supporter of it too! -- Don't give it ANY credibility at all (which is what you actually stated by mis-using the word).

    the NonCommercial license often seemed to raise more questions than answers

    Yeah. Like "What the hell?" since it's attempting to both BE and NOT BE at the same time. It can't actually be defined because of internal contradiction, besides that ends up "what we want, when we want, unless and until change our minds after someone takes us at our word and uses when we reverse and claim it's ALL OURS".

    It's not a formula for businesses to rely on. Indeed, they give only token nods to compliance and are mostly too big for the org to sue.

    I digress a bit to also point out that CC-by-inherent-contradiction particularly CANNOT work with computer code because code is just an idea NOT the actual instantion, which is all that copyright protects. -- Yes, kids, you are FREE to write all you want the adventures of A mouse, but not "Mickey Mouse", just as Disney drew on prior sources, NOT copied even the story, let alone the non-existent artwork of them. (Just to wedge that in, but it's always apposite.)

    It's BINARY (especially to courts): Creations are EITHER copyrighted, or NOT. Creating more tangles in copyright should be outlawed in itself.

    In sum: since "Creative Commons" didn't define its own notions well enough for a court to figure out, it's DOOMED. No one should pay attention to it.


    Oh. As to instant case: court got it right. Paying for copies by someone else is (legally) same as if copied in-school. Stupid case to bring.

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    • icon
      Stephen T. Stone (profile), 10 Oct 2018 @ 4:05pm

      You can't give away AND keep control. That's one line that could be taken with this.

      Well then that’s a problem, seeing as how copies of all kinds of media are “given away” on the Internet (legally or otherwise) all the time. If the Internet facilitates the free(-ish) distribution of media, and such distribution precludes the idea of “controlling distribution”, what does that say about how fucked copyright is thanks to the Internet?

      Don't give it ANY credibility at all (which is what you actually stated by mis-using the word).

      This isn’t just pedantry…this is advanced pedantry!

      Creations are EITHER copyrighted, or NOT.

      A creative work that makes use of Fair Use content from other works can technically be both—copyrighted in the sense that it is a wholly new work, not copyrighted in the sense that it is technically an illegal derivative work until the courts say otherwise.

      Creating more tangles in copyright should be outlawed in itself.

      Yeah, tell that to the people who will inevitably push for longer copyright terms before Steamboat Willie enters the public domain.

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      • identicon
        Anonymous Coward, 10 Oct 2018 @ 4:38pm

        Re:

        I sometimes almost wonder if you pay blue in circus peanuts just to set you up for spikes, like a wordy game of beach volleyball.

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        identicon
        tp, 11 Oct 2018 @ 12:22am

        Re:

        > Yeah, tell that to the people who will inevitably push for longer copyright terms before Steamboat Willie enters the public domain.

        Copyright term length is dependent on how long time it takes for investors of companies who create copyrighted works to get back the money they invested. If the length of the time for money coming back is long, copyright term length needs to be long too.

        The real issue is that when investing to technology development, your stack of money has a hole in it. To get the money back, the companies who invested the money must be able to move faster than the general market is moving, and copyright ownership is the way to do this. Once the company receives copyright ownership, they need to market their product to receive their money back.

        If government notices that some part of the market is struggling to get their investments back, they need to issue support for that area of the market. This government support will require them to increase the copyright ownership length while they are fixing areas which are most seriously impacted by the market problem.

        Thus complaining about copyright term length is no use, unless you have magic wand which fixes the actual issue -- i.e. the problem that investment in that area are not seeing proper return of the investment.

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        • identicon
          Anonymous Coward, 11 Oct 2018 @ 1:03am

          Re: Re:

          You're still not getting that mansion, chubby.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Oct 2018 @ 1:34am

          Re: Re:

          And I always thought that investing time and money in creating something was a risk, and if you failed to get your investment back that was your hard luck.

          Also, when technology changes so so any business models impacted by that technology, and sometimes that means the business fails, like when the home refrigerator put all the ice sellers out of business. If you can't make money after a technology revolution in your old business, you need to find a new business or job.

          (Hint, there are a lot of creators of digital works making money on the Internet, and most of them do not sell their creations, but rather their ability to create new works.)

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            identicon
            tp, 11 Oct 2018 @ 2:05am

            Re: Re: Re:

            > And I always thought that investing time and money in creating something was a risk, and if you failed to get your investment back that was your hard luck.

            Well, government can only support areas where the whole area is already completely broken, i.e. when the people in the area are dropping to food stamps, govt need to evaluate what is actually wrong and try to improve the situation. By that time, it might be too late for your business -- especially if your performance is worse than the environment where you're working.

            > when technology changes so so any business models impacted by that technology,

            Well, these waves of tech improvements are governed by the support that the government is giving to the area. If government is seeing that the market is building too small number of apartments, they try to increase the support they have for that area. Copyright is no different, if everything is going wonderfully, no support is needed and the market will decrease in the long term. If all hell breaks loose, govt will need to support the market and there will be growth in it.

            > If you can't make money after a technology revolution in your old business, you need to find a new business or job.

            Or you can increase your investment in the area. The product quality will increase the more investment you can pour into it, and at some point it becomes acceptable quality for the market, and then you'll have chance to make money with it. Once you exceed the expectations of the market, there's usually money to be made.

            But of course the amount of investment required might be too big for certain market entry, so there's a possibility that you've taken too big challenge and then your business will fail. Thus market participants need to carefully decide which level of investment is possible given the resources available.

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            • identicon
              Anonymous Coward, 11 Oct 2018 @ 2:37am

              Re: Re: Re: Re:

              Yeah, no. You can throw away as much money as you please, no law mandates that you get it back.

              If such a law existed you would have quoted it.

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                identicon
                tp, 11 Oct 2018 @ 2:42am

                Re: Re: Re: Re: Re:

                > can throw away as much money as you please, no law mandates that you get it back.

                It doesn't require a law. Humans are choosing higher quality products. If your investment is above the other participants in the market, your product is higher quality and thus you get the money when your users choose the product that looks and feels the best.

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                • identicon
                  Anonymous Coward, 11 Oct 2018 @ 5:11am

                  Re: Re: Re: Re: Re: Re:

                  when your users choose the product that looks and feels the best

                  Which doesn't have to do with the money thrown into it. It's a potential factor, sure, but not nearly the be all and end all you'd like to believe it is.

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                    Tero Pulkkinen, 11 Oct 2018 @ 5:16am

                    Re: Re: Re: Re: Re: Re: Re:

                    > > when your users choose the product that looks and feels the best

                    > Which doesn't have to do with the money thrown into it.

                    Yes, there are ways to save money and do better products, for example:
                    1) using slaves
                    2) employees are in burnout
                    3) doing copyright infringement
                    4) forget to pay salary
                    5) doing industrial spying
                    6) steal the product

                    Of course, all of them have some problems with the legal area...

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                    • identicon
                      Anonymous Coward, 11 Oct 2018 @ 5:56am

                      Re: Re: Re: Re: Re: Re: Re: Re:

                      You are ignoring the lessons of history, which is that most creators fail to gain an audience, and so do not get money for all the time that they spent creating the work.

                      Take the most expensive area of story telling, video, and you will find that it is within the reach of individuals to tell stories using a phone and all free software, along with some spare time and a desire to tell stories, and via the likes of YouTube, they can publish and try to find an audience. Find some people of a like mind, anywhere in the world, and it is possible to co-operate in producing a video.

                      With the Internet more creators are making some money from their creativity, and some have managed to turn their ability to create into a full time living via patronage. They may not become millionaires, though a rare few have even achieved that, but they can devote all their time to doing what they enjoy.

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                        tp, 11 Oct 2018 @ 6:24am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        > You are ignoring the lessons of history, which is that most creators fail to gain an audience, and so do not get money for all the time that they spent creating the work.

                        This was already mentioned earlier, when we talked about the investments -- i.e. return on investment might be poor in copyright industries -- this is mostly due to much of the investment going to waste when the companies and individuals who invest their time and money to the copyrighted works are not getting an audience.

                        Here's my analysis of the players you mention:
                        1) phone -- burnout
                        2) free software -- slaves, forget to pay salary, burnout
                        3) youtube -- forget to pay salary for video authors, burnout
                        4) patronage -- ??
                        5) millionaires -- burnout, slaves, stealing

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                        • identicon
                          Anonymous Coward, 11 Oct 2018 @ 7:58am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          millionaires -- burnout, slaves, stealing

                          Ah, so that's how you plan to get that mansion. By burnout, slaves and stealing. And you wonder why nobody likes you...

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                            identicon
                            tp, 11 Oct 2018 @ 8:12am

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            > And you wonder why nobody likes you...

                            Hmm, I saw some guy (in a mirror) that likes me.

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                            • identicon
                              Anonymous Coward, 11 Oct 2018 @ 6:09pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              And that is why the two buses you advertised on have done screw all for you.

                              You're a narcissistic prick.

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                        • identicon
                          Anonymous Coward, 11 Oct 2018 @ 8:28am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          this is mostly due to much of the investment going to waste when the companies and individuals who invest their time and money to the copyrighted works are not getting an audience.

                          And just how are they meant to determine whether a work will gain an audience before it has been created.

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                            identicon
                            tp, 11 Oct 2018 @ 9:36am

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            > And just how are they meant to determine whether a work will gain an audience before it has been created.

                            We just assume that anything with high enough quality will get an audience. Even if the product doesn't actually do anything, people will pick it up if it looks cool and high quality.

                            sure, some people will be disappointed that it wasnt more useful, but that's small price to pay for the tons of people who likes useless but cool gadgets.

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                            • icon
                              Stephen T. Stone (profile), 11 Oct 2018 @ 11:44am

                              We just assume that anything with high enough quality will get an audience.

                              How can we know something is “high quality” before it is even created?

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                              • identicon
                                tp, 11 Oct 2018 @ 12:19pm

                                Re:

                                > > We just assume that anything with high enough quality will get an audience.

                                > How can we know something is “high quality” before it is even created?

                                Well, while you're building the product, you just need to trust that the quality will eventually be high enough that market will accept the work. It's a risk that is worth taking.

                                You can't know it beforehand if you'll ever reach the acceptable quality.

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                                • icon
                                  Stephen T. Stone (profile), 11 Oct 2018 @ 12:25pm

                                  Well, while you're building the product, you just need to trust that the quality will eventually be high enough that market will accept the work.

                                  Trusting to hope is not the same thing as having the omniscient knowledge of how good or bad a given creative work will be before it is created. Besides, you can do your absolute level best and produce a work that is considered high quality by all who experience it, but you can still “lose” (i.e., not make a profit from it). That is not weakness; that is life.

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                                • identicon
                                  Anonymous Coward, 13 Oct 2018 @ 12:14am

                                  Re: Re:

                                  And the market hasn't accepted the work.

                                  Looks like you're not getting that mansion. Welp!

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                                    identicon
                                    tp, 13 Oct 2018 @ 8:27am

                                    Re: Re: Re:

                                    > Looks like you're not getting that mansion. Welp!

                                    If the mansions are not handed over for doing the actual work and creating the copyrighted works, then they're using some other criteria.

                                    good luck trying to find how to make copyrighted works profitable.

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                                    • identicon
                                      Anonymous Coward, 15 Oct 2018 @ 8:14pm

                                      Re: Re: Re: Re:

                                      Some other criteria? Looks like you're failing that too.

                                      As for how to make copyrighted works profitable, would you like that with or without Hollywood accounting?

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                                      • identicon
                                        tp, 16 Oct 2018 @ 6:57pm

                                        Re: Re: Re: Re: Re:

                                        > Some other criteria? Looks like you're failing that too.

                                        Well, if mansion takes half year to build and I spent 2 years for creating copyrighted works, I should have some way to get 4 mansions. This is just normal time-usage accounting, aka effort calculation.

                                        > would you like that with or without Hollywood accounting?

                                        I prefer just looking at the time used for the activity.

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                                        • identicon
                                          Anonymous Coward, 17 Oct 2018 @ 2:42am

                                          Re: Re: Re: Re: Re: Re:

                                          You clearly haven't been looking enough.

                                          Find me someone who can build a mansion in six months and I've got a bridge to sell you.

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                            • identicon
                              Anonymous Coward, 11 Oct 2018 @ 12:18pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              sure, some people will be disappointed that it wasnt more useful,but that's small price to pay for the tons of people who likes useless but cool gadgets.

                              An excellent reason not to buy your software.

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                              • identicon
                                tp, 11 Oct 2018 @ 12:25pm

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                > > sure, some people will be disappointed that it wasnt more useful,but that's small price to pay for the tons of people who likes useless but cool gadgets.

                                > An excellent reason not to buy your software.

                                Here's another description of the "moon walk" problem. When nasa decides that moon walk is necessary, but nasa itself is not going to help these companies to reach it, it remains a significant problem for elon musk and other people with tons of money. But the same requirement can be placed to individual persons who don't have rocket science experience, and the requirement to do a moon walk becomes impossible. Thus part of the requirement needs to be cutted -- full requirement is impossible for the given resources.

                                Your approach of focusing both "usefullness" and "coolness" has the same problem. You need to pick one of them, but not both. Thus if I choose coolness, usefullness is beyond the limits of what is possible.

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                                • icon
                                  Stephen T. Stone (profile), 11 Oct 2018 @ 12:29pm

                                  if I choose coolness, usefullness is beyond the limits of what is possible

                                  You can make anything “useful” first, then concentrate on how to make it “cool” (which is an arbitrary, subjective judgment that changes from person to person and day to day). Hell, something being “useful” can make that thing “cool” by virtue of its usefulness. The two concepts are mutually compatible because of their nature as largely subjective opinions.

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        • icon
          Stephen T. Stone (profile), 11 Oct 2018 @ 11:25am

          Copyright term length is dependent on how long time it takes for investors of companies who create copyrighted works to get back the money they invested.

          No. No, it is not. If that were true, Black Panther would already be in the public domain because it made its production budget back and then some. Copyright term length is dependent on what the law says it is—and the laws in that particular part of the book are practically governed by corporations that do not want to give anything up to the public domain if even a slim chance to monetize a work that made profits for decades still exists. For example: Michael Jackson is dead, so he can no longer profit from his works, but his estate has no plans to put his music into the public domain any time soon.

          If the length of the time for money coming back is long, copyright term length needs to be long too.

          A copyright term in the United States last for the lifetime of an author and seventy years after their death. As I pointed out above, Michael Jackson can no longer profit from his works because he is dead—so what makes the people who own the still-existent copyrights on his music deserving of keeping those copyrights and profiting off the work of a dead man?

          Copyright is a balance between the rights of an artist to receive compensation for their work and the rights of the general public to eventually distribute and use that work as part of their own derivative works (i.e., make use of public domain works). As proven by the U.S. copyright scheme, an imbalance in favor of the “artist” (read: copyright holder) shortchanges the general public. Copyright terms that last beyond the grave shortchange the general public. To continue with the MJ example: No one who was alive when Michael Jackson was alive/in his prime will ever be able to make a legal derivative work based on his music—which means no remixes, no freely using his songs in a movie or TV show, nothing of that kind. We still have another sixty years to wait until his works go into the public domain. How does that seem even remotely fair to the general public, who are supposed to be the ultimate beneficiaries of copyright?

          If government notices that some part of the market is struggling to get their investments back, they need to issue support for that area of the market.

          The government has no business picking “winners” and “losers” in the market; to do so would be to unfairly influence the market in favor of what a given administration wants. The market must act independently of such influence. It must not allow the government to decide one company, above all others, deserves the most success—or the most failure.

          This government support will require them to increase the copyright ownership length while they are fixing areas which are most seriously impacted by the market problem.

          Copyright terms already last several decades—and that is after the life of the artist has ended. How much longer do they need to be before you are satisfied that they are long enuogh?

          Thus complaining about copyright term length is no use, unless you have magic wand which fixes the actual issue -- i.e. the problem that investment in that area are not seeing proper return of the investment.

          A longer copyright term will not fix that issue because no creative work is guaranteed a return on investment. Longer copyright terms do nothing to improve the quality of a creative work or change the tastes of people who spend money to experience those works. Copyright could last for infinity minus a day, but it won’t make Batman v Superman any better of a film, and it won’t make people pay to watch that movie so the investors can get their money back.

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          • identicon
            tp, 11 Oct 2018 @ 1:23pm

            Re:

            > Longer copyright terms do nothing to improve the quality of a creative work or change the tastes of people who spend money to experience those works.

            Copyright term length is not based on the individual product's chances of success in the marketplace. Instead average is used, calculated from the large industrial investor's data about the market dynamics collected over long periods of time. Basically only pension funds can properly invest in the market and watch the industry struggles from beginning to the end. Copyright term length is long term issues, and individual products do not have any meaning in the calculation. Instead the whole market dynamics needs to be taken into account.

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            • identicon
              Anonymous Coward, 11 Oct 2018 @ 3:05pm

              Re: Re:

              >Instead the whole market dynamics needs to be taken into account.

              And those dynamics include self publishers exploiting platforms on the Internet to reach an audience. Indeed the traditional publishing industry, where editors select a few work from the thousand that they are offered is outdated, and should be allowed to go the way of ice sellers and livery stables. Just because an industry used to be profitable does not mean it will always remain viable.

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              • icon
                Stephen T. Stone (profile), 11 Oct 2018 @ 3:33pm

                Re: Re: Re:

                Just because an industry used to be profitable does not mean it will always remain viable.

                And just because an industry used to be viable does not mean the government should hamstring whatever is making that industry go the way of the dodo. (“Too big to fail”, my ass.)

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            • identicon
              Anonymous Coward, 15 Oct 2018 @ 8:17pm

              Re: Re:

              Long periods of time... so you're saying that corporations have been monitoring for several human lifespans to conclude that corpses have to be paid? As in, longer than these groups have existed?

              Yeah, no. The likelier, read actually plausible, explanation is they pulled a number out of their ass and increase said number every so often.

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    • identicon
      Anonymous Coward, 10 Oct 2018 @ 4:11pm

      Re: To BE copyrighted it MUST have commercial value TO creator.

      As usual, just more lying.

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      • icon
        Gary (profile), 10 Oct 2018 @ 4:56pm

        Re: Re: To BE copyrighted it MUST have commercial value TO creator.

        _To BE copyrighted it MUST have commercial value TO creator._

        To be copyrighted, the _only_ requirement is that it be affixed.
        As soon at Mike publishes the comments here, they become copyrighted - even the useless ones!
        Posting here grants TD LLC limited ownership of the copyright. Ain't that swell?

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  • identicon
    Glenn, 10 Oct 2018 @ 5:15pm

    Great Minds...

    oxymoronic.

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  • identicon
    Anonymous Coward, 11 Oct 2018 @ 8:38am

    We,ll see how this works out when the new eu copyright laws come into force,
    Its likely big tech sites like facebook ,youtube ,
    will manage to put in filters ,
    Smaller websites might choose to block all user
    uploads , and simply allow images or video,s from
    big publishers, like drudge, gaurdian uk,daily mail uk, etc if they have a licensing agreement with them.

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  • icon
    That One Guy (profile), 11 Oct 2018 @ 9:12am

    This should be really easy

    'The people who wrote the license you are using say your interpretation of it is wrong. As such it's on you for misreading it, and the case is dismissed, with a strong suggestion that perhaps you could ask them for clarification first next time before taking the matter to court.'

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    • icon
      The Wanderer (profile), 11 Oct 2018 @ 9:28am

      Re: This should be really easy

      To be fair, that could just mean that if they'd realized the license meant that, they wouldn't have chosen to offer the content under that license - and they could then argue that they shouldn't required to adhere to license terms they didn't intend to offer.

      Their only recourse in that case, however, should be to relicense the content (and license any future content) under a different license, which does have the terms and meaning they want - even if that means defining their own license, rather than using an existing defined-for-general-usage license such as the ones Creative Commons provides.

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      • icon
        That One Guy (profile), 11 Oct 2018 @ 9:39am

        'YOUR confusion should not be MY problem.'

        To be fair, that could just mean that if they'd realized the license meant that, they wouldn't have chosen to offer the content under that license - and they could then argue that they shouldn't required to adhere to license terms they didn't intend to offer.

        On the contrary, they most certainly should still be required to adhere to the terms even in that case, as otherwise they'd be re-defining an existing license to their benefit and the detriment of others.

        It should not be up to other parties to figure out what they mean when they use a license by a third party, the official definition should be given priority, and if that means that they used the wrong license the fallout from that should land squarely on them.

        Your second paragraph covers what I'd consider the ideal solution to this. The case is dropped with a 'You screwed up and chose the wrong license, that's on you', no win on their end. They re-licence under a different license, one with terms they agree to even if they have to spell it out themselves, and any future violations can then be dealt with as they come up.

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        • icon
          James Burkhardt (profile), 11 Oct 2018 @ 12:01pm

          Re: 'YOUR confusion should not be MY problem.'

          In fact, when Under contract law you are most certainly correct. The Education company (Party A) is offering up a contract, the CC licence under which the materials are sold. The educator (Party B) agrees to the licence when they purchase the material. Because Party A defined the contract language (They had the power to alter,change or otherwise define the contract terms prior to offer), when considering ambiguous language, the court must read the contract in favor of Party B, to balance the inequity of power in the contract formation step.

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    • identicon
      Lawrence D’Oliveiro, 11 Oct 2018 @ 2:19pm

      Re: This should be really easy?

      'The people who wrote the license you are using say your interpretation of it is wrong.

      They used the term “non-commercial”, knowing full well it is a legal term which is subject to interpretation by the courts. If they really meant “non-commercial, except that big intermediaries, but not small ones, are allowed to charge for copying or distributing it”, then they should have said so explicitly. If they don’t like the way the courts are likely to interpret the term, then they shouldn’t have used it.

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      • identicon
        Anonymous Coward, 11 Oct 2018 @ 3:07pm

        Re: Re: This should be really easy?

        There is a difference between paying for a service like copying where the license allows creation of copies, and making, or having made, copies that you sell.

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        • identicon
          Lawrence D’Oliveiro, 11 Oct 2018 @ 3:30pm

          Re: where the license allows creation of copies

          But not for profit--that’s what “non-commercial” means. And what is a commercial photocopying operation, like FedEx is running here, if not making copies for profit?

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          • identicon
            Anonymous Coward, 11 Oct 2018 @ 3:50pm

            Re: Re: where the license allows creation of copies

            So are the paper suppliers also liable for copyright infringement, along with printer suppliers, because they made a profit on the paper ink and printers used. There is a huge difference between making a profit supplying goods and services used in making copies, and making a profit by selling copies.

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            • identicon
              Lawrence D’Oliveiro, 11 Oct 2018 @ 4:46pm

              Re: So are the paper suppliers also liable for copyright infring

              Are they the ones copying/distributing the copyrighted material?

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              • identicon
                Anonymous Coward, 12 Oct 2018 @ 12:42am

                Re: Re: So are the paper suppliers also liable for copyright infring

                IS Fedex when they make copies for other people? Need they be aware of what license applies to things that they copying for other people?

                What if they rented time on their copying machine for a customer to stand their and make their own copies? They make the same profit for the use of their machines.

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          • icon
            That One Guy (profile), 11 Oct 2018 @ 6:32pm

            Re: Re: where the license allows creation of copies

            Are you talking about FedEx making a profit from making the copies? Because that's the default. If you want them to make a copy of something they're going to charge you for it, and as a business they're going to charge you enough to cover costs, make it worth their while, and to prevent a flood of people going to them to make copies that cost FedEx time and resources but doesn't net them anything.

            The idea that a company like FedEx would have to eat the costs of making copies for the non-commercial limits to not be violated strikes me as an extreme reading of the license, and one that apparently the people who wrote it also disagree with. Under that interpretation if someone wanted to make use of non-commercial licensed content in a way that required numerous copies they be required to make all of those copies themself, or hope that they knew someone who had access to professional machinery who was fine letting them use it for free/at cost, which would severely hamstring the use of said content in any large scale.

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            • identicon
              Lawrence D’Oliveiro, 11 Oct 2018 @ 9:00pm

              Re: This should be really easy?

              The idea that a company like FedEx would have to eat the costs of making copies for the non-commercial limits to not be violated strikes me as an extreme reading of the license, and one that apparently the people who wrote it also disagree with.

              Disagree or not, they used a legal term, they have to abide by the courts’ interpretation of that term.

              Under that interpretation if someone wanted to make use of non-commercial licensed content in a way that required numerous copies they be required to make all of those copies themself, or hope that they knew someone who had access to professional machinery who was fine letting them use it for free/at cost, which would severely hamstring the use of said content in any large scale.

              Yup.

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              • icon
                Stephen T. Stone (profile), 11 Oct 2018 @ 9:20pm

                Under your interpretations and logic, should the companies that make the equipment I use to create my illicit copies be liable for my using that equipment to create illicit copies? After all, if FedEx should be dinged for using equipment to help facilitate copyright infringement, why should Brother get off the hook for selling FedEx the printers and copiers used to create the illicit copies in the first place?

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                • identicon
                  Lawrence D’Oliveiro, 11 Oct 2018 @ 9:36pm

                  Re: This should be really easy?

                  should the companies that make the equipment I use to create my illicit copies be liable for my using that equipment to create illicit copies?

                  https://en.wikipedia.org/wiki/Secondary_liability

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                  • icon
                    Stephen T. Stone (profile), 12 Oct 2018 @ 12:34am

                    Do you really, truly believe that if I use a Brother printer to print out a bunch of ebooks I illicitly downloaded from the Internet, Brother should be held liable for what I did with that printer—even though it had no idea what I was doing and could not know beforehand what I would do?

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              • icon
                That One Guy (profile), 12 Oct 2018 @ 12:22am

                Re: Re: This should be really easy?

                Disagree or not, they used a legal term, they have to abide by the courts’ interpretation of that term.

                And so far two courts have told them, 'Uhh no, that's not how it works.'

                Yup.

                Yeah, completely impossible to take your argument serious at this point unless you are trying to kill off CC-NC, in which case your argument/interpretation, if the third time turns out to be the charm, would certainly do a great job at that.

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                • identicon
                  Lawrence D’Oliveiro, 13 Oct 2018 @ 2:46pm

                  Re: This should be really easy?

                  And so far two courts have told them, 'Uhh no, that's not how it works.'

                  Just a reminder that “them” is the Creative Commons organization. (That is whom I was referring to, after all.)

                  So what you are saying is that my point has been backed up by the courts. Twice.

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                  • icon
                    That One Guy (profile), 13 Oct 2018 @ 7:00pm

                    Re: Re: This should be really easy?

                    That's not only wrong it's dead backwards, to the point that I'm left wondering if you read the article at all. The court has rejected your/Great Mind's interpretation of the CC-NC license twice, not affirmed it.

                    In the FedEx case, both the district court and the 2nd Circuit appeals court rejected Great Minds' interpretation and tossed out the lawsuit saying that the license in question did not limit FedEx from charging for copies. Great Minds also filed a nearly identical case against Office Depot in California, which also was dismissed, despite Great Minds claiming that this case is different than the FedEx one (specifically, it argued that Office Depot employees were "actively soliciting" schools to copy Great Minds' works). The court didn't buy it.

                    In fact it looks like their/your argument has been rejected three times, not two.

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                    • identicon
                      Lawrence D’Oliveiro, 14 Oct 2018 @ 4:03pm

                      Re: This should be really easy?

                      So FedEx gets a special dispensation for doing something that you or I would not be permitted to do, namely make money from copying CC-NC material?

                      What is the legal basis for that, exactly?

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                      • icon
                        That One Guy (profile), 14 Oct 2018 @ 7:48pm

                        Re: Re: This should be really easy?

                        No, they don't, you could do the exact same thing they are doing(charging for making copies for someone else rather than eating the costs) and you'd be in the clear as affirmed by three courts so far.

                        As such the 'legal basis for that' would be 'because that is allowed under the license, as affirmed by three courts so far and by the people who wrote the license.'

                        (Now whether you'd be able to afford to defend yourself if you were sued in that situation by someone with your/Great Minds' interpretation of the licence is another matter entirely, but that's a separate issue from whether or not you'd have the legal right to do so.)

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                        • identicon
                          Lawrence D’Oliveiro, 16 Oct 2018 @ 2:42pm

                          Re: This should be really easy?

                          ... you could do the exact same thing they are doing(charging for making copies for someone else rather than eating the costs) and you'd be in the clear ...

                          Or maybe not. Quoting from Creative Commons’ own amicus brief:

                          It does not further this purpose to require a party, such as a school district, that is engaged in a bona fide “NonCommercial” use (as that term is defined in the license) to refrain from using all others, including commercial entities acting solely at the licensee’s direction, at every step in the reproduction or distribution process that culminates in sharing of the work for a NonCommercial end.

                          It looks like they are trying to draw a distinction between the party instigating the copying, and the party whose business it is to make copies, saying that the NC restriction applies to the former, not to the latter. So it seems your interpretation is wrong.

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                          • icon
                            That One Guy (profile), 16 Oct 2018 @ 10:50pm

                            Re: Re: This should be really easy?

                            That looks to be roughly 'If you're using the work in a non-commercial fashion you are allowed to make use of a party engaged in commercial actions such as providing copying services in order to facilitate that.'

                            The NC restriction applies to the one directly using the content under that licence, it does not apply to ones who are offering a service(in this case creating copies) simply because it involves that content.

                            Or put another way, you are allowed to make copies of CC-NC content and charge for the act of making those copies. You are not allowed to make copies for the express purpose of selling those copies.

                            Exactly what part of that conflicts with my interpretation, and for clarity what do you think my interpretation is such that you'd say that?

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                            • identicon
                              Lawrence D’Oliveiro, 17 Oct 2018 @ 7:00pm

                              Re: This should be really easy?

                              The NC restriction applies to the one directly using the content under that licence, it does not apply to ones who are offering a service(in this case creating copies) simply because it involves that content.

                              The trouble is, the NC licence is the only permission they have to use, copy and distribute the content. So if the service doing the copying (or, say, providing on-demand distribution of copies, like DeviantArt I mentioned earlier) is not covered by that licence, then what permission do they have to have and make those copies?

                              Isn’t the whole point of copyright that if you don’t have permission from the copyright holder to have and make copies, then you can’t do so?

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                              • icon
                                That One Guy (profile), 17 Oct 2018 @ 8:31pm

                                Re: Re: This should be really easy?

                                The one using the content is covered/limited by the license, the third party they are using to make copies/spread that content are involved only peripherally, and as such not bound, as the original user is essentially just using them to accomplish their goal(in this case, making lots of copies).

                                I'll try it this way. Imagine if you will the following scenarios:

                                1a) Person A wants to make a copy of a CC-NC work. They don't need a high quality copy so they print it on their computer, with their printer.

                                1b) Person A wants to make a copy of a CC-NC work. They are busy at the time however and ask a friend(Person B) who's over at the time to print it out for them, using A's printer.

                                2a) Person A wants to make a copy of a CC-NC work. The either don't have a printer, it's currently broken/out of ink, or it's not high quality enough for what they want. In response they go to Person B, who has a high quality printer, and use their computer/printer, free of charge.

                                2b) Person A wants to make a copy of a CC-NC work. The either don't have a printer, it's currently broken/out of ink, or it's not high quality enough for what they want. As they are in a rush they send the work via email to B, asking them to make a copy on B's computer/printer which they can pick up later. This is done free of charge.

                                3a) Person A wants to make a copy of a CC-NC work. The either don't have a printer, it's currently broken/out of ink, or it's not high quality enough for what they want. In response they go to Person B, who has a high quality printer, and use their computer/printer. Not being quite so generous as to allow A to use their expensive printer ink free of charge(perhaps A wants to make a LOT of copies), B charges them an amount estimated to cover the paper/ink they use.

                                3b) Person A wants to make a copy of a CC-NC work. The either don't have a printer, it's currently broken/out of ink, or it's not high quality enough for what they want. As they are in a rush they send the work via email to B, asking them to make a copy on B's computer/printer which they can pick up later. Not being quite so generous as to allow A to use their expensive printer ink free of charge(perhaps A wants to make a LOT of copies), B charges them an amount estimated to cover the paper/ink they use.

                                4a) Person A wants to make a copy of a CC-NC work. The either don't have a printer, it's currently broken/out of ink, or it's not high quality enough for what they want. They know that Person B, who either runs a business that offers copying services or is an employee there has a high quality printer at their disposal, albeit one where use is charged for(that is part of their business after all), and so they go to B, use their printer, and pay the required amount.

                                4b) Person A wants to make a copy of a CC-NC work. The either don't have a printer, it's currently broken/out of ink, or it's not high quality enough for what they want. They know that Person B, who either runs a business that offers copying services or is an employee there has a high quality printer at their disposal, albeit one where use is charge for(that is part of their business after all). Use of the printer is limited to the employees only however, and as such Person A is required to let B do the copying for them, which they do and after which they pay for it.

                                A, being the 'primary' user of the CC-NC work is always bound by the CC-NC licence, this is a given. At what point would you say that B is bound by the license in the above examples, and why?

                                reply to this | link to this | view in chronology ]

                          • icon
                            The Wanderer (profile), 17 Oct 2018 @ 6:29am

                            Re: Re: This should be really easy?

                            That sounds to me like exactly what his interpretation is. I'm not sure how you see that as supporting the position you seem to have been arguing.

                            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Oct 2018 @ 6:13pm

    copying vs theft = people with common sense vs delusional copyright apologists

    reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 12 Oct 2018 @ 7:37am

    The semantics are whats important!

    Office depot has the photocopier open for customer use? fine.. Office depot employee helps some customer use it when they are having trouble? Infringement!

    reply to this | link to this | view in chronology ]


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