To a point. But depending on context, sometimes there's something to be said for not justifying a ridiculous position by offering it a reasoned response.
If an anti-vaxxer stands up at a serious medical conference and starts pushing their agenda, should all the doctors put the real conversation on hold so they can go over all the same vaccine evidence and arguments again in an attempt to convince them? Or should they all laugh and say "sit down, moron" so they can get on with real science?
Well, I think Apple might be able to make a slightly better case that the change is actually necessary and beneficial in the long run (usually technology/form factor reasons), but it comes down to whether you believe/agree with that. If you don't, then you're right, there's no difference.
It's just over $100, which doesn't seem that bad -- at least, I'd be a little nervous entrusting a laptop to something that cost much less. And when you compare it to the insane price of a lot of monitor arm-mounting systems and such it looks pretty good... Still often nervous about buying these kinds of things without seeing them in person though, or at least being able to look at some hands-on reviews -- I hate ordering something like this and it turning out to be palpably cheap & junky the moment you look at it up close.
Indeed... I didn't really want to get into the whole side of it that is the specific performer's rights carved out for phonorecords. Those are noteworthy in how limited they are, too -- correct me if I'm wrong, but performer's lose their right in the recording simply by authorizing the recording, without needing to do anything further in terms of licensing or rights transfer.
And yeah, the fact that these rights are specifically carved out for certain types of performers certainly strengthens the argument that they do not emerge naturally from basic copyright law. The copyright act notes that anyone who makes an (unauthorized) recording of a live musical performance will be subject to remedies "to the same extent as an infringer of copyright".
You keep referring to international treaties as if they had some bearing on interpretation of the U.S. Copyright Act. Why is that?
I am pointing out a) the extensive international legal discussion about the status of performer's rights as a separate thing from traditional copyright, b) the fact that the US does not even have those rights as is commented on in virtually all such discussions.
In citing information about performer's rights it is very hard to point to US law because US law has no performer's rights. You keep responding as though this is some insane theory I have, rather than something frequently noted -- by WIPO, by entertainment industry guilds, by the copyright office, in international negotiations, etc. -- and a fairly well-known fact.
Anyway, I was primarily addressing your argument (did I misunderstand?) that a video is not a tangible medium of expression for purposes of the Copyright Act.
Yes, I believe you misunderstood. I'm certainly not claiming that a video is never a tangible medium of expression. I'm questioning your comparison of an actor's performance in a movie to pantomime and choreography, where the intent of the law is clearly to cover the composition of those things, just as it covers theatrical scripts or musical compositions. So yes, you could make the argument that her performance in studio becomes, by virtue of being filmed by the filmmaker, a fixed composition that is somewhat comparable to choreography -- but I think that's a clear distortion of the law's intent, given the (separately still being debated) fact that, otherwise, US law does not grant performer's rights.
The performances of actors, singers, musicians and dancers are an integral part of the creative process in presentations to the public. Since the very first performance recordings, in sound and images, it has been accepted that performers should have some rights over those recordings and a share in the proceeds from their commercial exploitation.
Nevertheless, the first international recognition of these so-called “neighbouring rights” (rights related to copyright) did not come until adoption of the 1961 Rome Convention. This treaty gave performers in audiovisual works such as feature films, videos and television dramas rights against unauthorized broadcasts or recordings of their performances. However, and in contrast to performers in sound-only recordings (CDs, MP3 files and so on), once performers in audiovisual works had consented to the initial recording of their performance they were given no rights over its use.
... Once authorization has been given for filming a performance, actors in most countries have no control over how that performance is used. ...
The stumbling block to agreement in both 1996 and 2000 was a stand-off between the USA and the European Union over the transfer of rights. In audiovisual productions the transfer of rights from performers to producers is essential so that producers can negotiate commercial deals with cinema chains, broadcasters, DVD retailers and so on without having to seek authorization from each individual performer. A feature film, for example, may use dozens of actors, in addition to others such as screenwriters and photographers who also have rights over their contribution. Although the need to transfer rights is not disputed, different countries have different systems for doing this. In the USA performers’ rights are automatically transferred to producers, while actors’ pay is negotiated by a strong trade union, the Screen Actors Guild. In Europe, practice varies. In some European countries, transfer is automatic while in others it is presumed by law but an agreement to the contrary is possible. Other countries such as the UK have no statutory rules, leaving transfer arrangements to a contract between the performer and the producer. In addition, even after transferring authorization rights, performers in some countries retain moral rights to object to lack of attribution and distortion or derogatory treatment of their performances.
Then why have written laws at all? Whenever someone decides they don't like someone else, we just grab a judge, and if he says "hmmm yeah you suck" then you get punished in whatever way seems more or less appropriate. Brilliant!
What? You are going off the rails here. You obviously have some familiarity with copyright law...but not that much. Fixing in video/film is clearly a tangible medium of expression for copyright protection purpose. That is not arguable.
No, I'm trying to keep to sets of rails separate, and you are jumping between them.
The question of whether a performer who has authorized the recording of their performance still holds a right in the recording is separate from the question of whether an author who has scripted a piece of choreography or pantomime holds a copyright in that work.
There is a reason that the Rome treaty specifically addresses performer's rights -- because they are nowhere to be found in the Berne convention. And even within the Rome treaty, performers are not simply granted a basic copyright, rather they are given a new set of specific enumerated exclusive rights to prevent: the broadcasting and the communication to the public of their live performance; the fixation of their live performance; the reproduction of such a fixation if the original fixation was made without their consent or if the reproduction is made for purposes different from those for which they gave their cons.
The only one of those rights that might conceivably have been violated here is the last one, and even that is besides the point since US law does not recognize these rights from the Rome convention.
Unfortunately, I think Kozinski got it quite wrong on the subject of choreography and pantomime. From the U.S. copyright office:
To be protected by copyright, pantomimes and choreography need not tell a story or be presented before an audience. Each work, however, must be fixed in a tangible medium of expression from which the work can be performed.
Now, one could make the argument that the movie made from her performance could itself serve as a tangible medium "from which the work can be performed" — but that is clearly not in keeping with the intent of the law, which is to protect pantomime and choreography that is written or scripted in some way as a work of authorship.
Re: Re: Which fundamental principles would those be?
The question is then who owns the copyright, not whether it is covered by copyright.
No, the question is manifold.
It's wrong to suggest that a performer's rights automatically emerge from the basic central principle of copyright -- while they are a form of copyright, they are established separately as related rights, precisely for the reason that the question of them being "fixed" is a difficult one.
The US doesn't have federal performer's rights. Lots of other countries that more closely follow the Rome convention do -- but those rights are still somewhat distinct from copyright. In some cases a performer is granted the right to disallow recordings, but once a performer has authorized a recording, they lose the exclusive rights of reproduction and distribution in that copy; in other cases it's more copyright-like; in virtually all cases throughout Europe, Australia and several other areas, it's largely untested and still constantly changing due to ongoing trade agreements that all attempt to quietly alter the rules.
So the first question is, does the performer have a standard, basic copyright according to the central definition of a fixed creative work? And I say no, because they didn't do the fixing.
The second question then, is, do they have a related performer's right which they can assert over recordings of their performance? In many countries they would, and in some states they might be able to make a case for it, but overall: no.
The third question, IF they had either a copyright or a related performer's right, would be who owns it -- but that question really shouldn't even be necessary here. If it is, then we're at the mercy of often-bizarre work-for-hire laws.
Yeah but as we've seen, there's only one "win" the old guard is interested in, and they're upset if the other side doesn't lose...
Look at YouTube: the ability to monetize with ads through ContentID is a really great win-win system that YouTube created itself and gave to the film/tv/music industries... but the response they get is that it doesn't mean anything until they can ensure that all unauthorized content will be filtered from YouTube forever.