No, its not an open and shut case. Now, if this doesn't settle a court may ultimately find that this was infringing and illegal. But before they do so they must consider fair use. Here the question is fairly murky with good arguments either way, but its definitely not open and shut.
As for breaking the law while exercising free speech...The law, by definition, does not allow it. But society often lauds a certain amount of non-violent civil disobedience and non-violent law violations in the context of making powerful political statements. Gahndi and Martin Luther King Jr. both advocated a certain limited amount of non-violent law breaking and MLK participated in it and went to jail more than once.
Also, if you want to challenge a law's constitutionality in court you often must break it in order to create a live and current case. One of the Japanese curfew cases during WWII was created this way by a man of Japanese descent violating curfew with his lawyer aware and his secretary calling the police to ask that he be arrested.
To be clear, I am NOT comparing these people to MLK or other such civil rights heroes. I in fact openly state that I believe they morally did the wrong thing in using this picture, and I generally disagree with their stance.
But, it is not as simple as saying this is an open and shut case or saying that you can absolutely never break the law in exercising free speech.
Its not that simple and it depends on the circumstances, but yes there would be a wide variety of circumstances where someone can use an image you took to support something you hate and you cannot (successfully) sue to stop them. At least in my opinion, that is as it should be.
One of the reasons fair use exists is to limit the ability to use copyright as a form of censorship. A photograph in particular, especially one that depicts something controversial is in addition to any artistic depiction a capturing of a moment in history. That may be valuable to newspapers, commentators, and historians. Fair use partially exists to make sure all of those people are not undully hampered in doing their duty.
" Granting them protection may encourage us and our children to behave in a way that we generally regard as morally correct, or at least in a way that makes our cohabitation more agreeable or efficient."
Even if I were to grant every premise in the argument sketched here, it does not provide that we should Legally grant robots rights. It may, perhaps, persuade me that I should treat my robots in a certain fashion and teach my children to do the same, when these hypothetical robots exist.
But that does not mean that courts or law enforcement should be envolved in it. It is rather a moral issue within my family (and arguably more of an exercise, something I do now so that behaving morally when it matters later is easier, rather than something I do for its own sake).
This post depends very much on how you define completely free market. If by free market you mean a completely free market such that there is no government regulation of the market (though there may be laws criminalizing non-market activity such as theft or murder) then you are right that copyright has no place at all since it is a creature created by statute and given form by regulation. Though I'd point out that monopolies can certainly arise in a free market if there are natural barriers to entry and a fair bit of regulation now is about about preventing and regulating monopolies.
Now, if by free market you mean a market that is largely free and with minimal regulation (we can argue about how much regulation is permitted before we draw the line, but it is clearly distinct from a concept like communism where the state controls most of the means of production) then we can easily accept that a copyright is a reasonable regulation on the market that creates monopolies only on very specific products. After all, it does not give anyone a monopoly on books, only on the specific book to which they created and someone else is free to compete by creating a new book, even a new book on the same topic.
I see great utility in the noderivatives option as many creators may want to limit modifications to their work while still allowing broad use of it. While I would prefer these creators use a more open license, it is fundamentally their choice and I respect their decision (for a limited time) to restrict derivatives.
I fail to see Helene Lindvall's point. Let us assume she is completely right and that file sharing is encouraging the creation of and attention to "plastic pop".
Personally, I do not like Pop at all. But if that is what the public wants, what is wrong with giving it to them? If people are willing to support it, why not create it for those people?
Also, the existence of Pop, even in large quantities, does not in the slightest detract from my ability to find high quality Symphonic Metal like Nightwish, Within Temptation, and TSO. File sharing is obviously not stopping the creation of excellent musicians like these (Nightwish released their latest album earlier this year and TSO has announced a new project in the works).
So, even if she is completely right, what is the problem?
I have a 6 year old, a 3 year old, and an infant. Personally, I love some of the enhanced e-books available on the Ipad for my 3 year old (and even tolerate some for my 6 year old).
They cannot ever replace having me or my wife actually read to my young girl, and no one should use them to replace actually spending time reading to their children and teaching them to read. But with that said, they do not make a good supplement that is always available and still better for her than watching TV.
If we want to get technical a line is a primitive or "undefined" term.
It is algebraicly described in the form y = mx + b and in Euclidean geometry given two points there will be a single, unique line passing through those points. The axioms imply that the line must have infinite length and no width.
No, a line extends infinitely in both directions. It is closer to say that a point is a zero length line segment, but even that doesn't quite work since line segment is normally formally defined as being bounded by two distinct points. (Definitions of line-segments that permit zero length lines would result in most theorems that deal with line segments to require a caveate that they are talking about a non-zero length line, which is just awkward).
More than that, anyone who has not studied mathematics would probably intuitively agree with the judge. To move it entirely outside of math, the judge could have said "That is silly, that is like saying standing still is a zero-length walk."
Most government reports are designed to support a view...
Overally, this was a great article and thank you for putting it together.
I have to make a possibly significant quible about one thing: "The report itself explicitly states that it is not designed to be used to support any particular policy. "
I have not read this report, but if it is like others I have read, it is a common disclaimer on a huge array of government reports and even some datasets in acadameic papers. It is meant to show that the people who gathered the data were (at least supposed to be) unbiased and unaffected by politices or policy.
That in no way means that the statistics should not then be used by others, along with analysis, to actually support a view, just that the report itself is not take a position.
I have exactly two 10 digit phone numbers memorized, and that came through repeated use rather than than a conscious attempt to memorize (and 3 of those 10 digits are the area code, so really I memorized 2 7 digit numbers).
"the fact that the tracks were authorized is not a defense"
I am not a lawyer, but I think this is a defense. Anything which asserts that a key element is missing is an example of a defense.
I do not think it would be an *affirmative defense* though. An affirmative defense involves showing that the prohibited act did occurr, but that there is either a justification or excuse for it. Self defense is the classic case of affirmative defense. I think authorization distrubtion is fully permitted so authorization would mean that there was no prohibited action, not that there was an excuse or justification.
Again, I am not a lawyer but I think the difference is significant because of how they are treated. With an affirmative defense the burden of proof can be shifted to the defendant, for one thing.
You make a fair point, and perhaps simply the word "paid" would have been better.
With that said, I do beleive that a painter with a valid copyright should, in general, be able to demand payment for any major use of their painting in a film.
That of course is qualified with in general because it should not apply when there is fair use, but that is a case by case decision. It also should not qualify after the copyright term expires. I believe our current copyright term is too long, but that is somewhat tangential to the current discussion.
This time, I must respectfully disagree. A piece of visual art is precisely that, and often created, at least in part, with the intent to monetize the ability to view that art. Buying a copy is very different from purchasing a license to use it by visually representing it. And with a painting, its value is largely in the ability to see a visual representation. I think there is, in general, a valid right for the artist to be compensated for its inclusion in a movie since then the movie viewers see the art which is its primary value.
Now, some artists, especially ones not well established, might well offer their work for free or even pay to have it included in a movie for exposure, but that is the artist's right and not something to be assumed. And this is very different from a can of coke because with coke the value is in drinking it, not in seeing it.
There are other reasons that this particular case might not make sense, but not the reasons you list. For one, I believe our copyright term is too long and something from 1907 should be in the public domain now, but until that law is properly changed it is still in copyright. I also note that a license fee was already paid, but whether or not that covers this version is precisely the heart of this case so the court will decide it. Also, there might be a fair use claim especially for art that is not significant to the movie and shown only in passing.