But my original suggestion was made as a way to resolve the apparent contradiction between people having chosen a CC license which allows commercial use and still being upset over this. I interpret that as indicating that those people do, in fact, fall into that category which you described as "mostly-theoretical"
I actually don't think they are. I think they would be just as upset if Flickr started selling coffee mugs and mouse pads with their images on them. On the other hand, Flickr isn't doing this, so who knows.
It's possible that the people who are upset about this either chose the wrong license (i.e., would indeed have preferred to prohibit all commercial use of their images) or are, in fact, just being hypocritical.
I wouldn't say "hypocritical." I'd say that the vast majority are simply ignorant of the ins and outs of copyright law, which is not particularly uncommon.
The two articles that Techdirt linked to, seem to suggest that the photographers are fine with any business except Flickr itself using the images in a commercial context. (So presumably they would be OK with someone selling coffee mugs with their photos on Etsy, but not Flickr itself selling coffee mugs with their photos.) That, to me, is incredibly hypocritical. Frankly, I don't understand that reasoning at all.
But honestly, I don't think this is particularly widespread; most photographers would get upset at the Etsy mug just as much as the Flickr mug, and the artists in the linked articles are outliers.
If I'm wrong, and there is such a license, I'd be glad to be corrected on that point.
You're not wrong, but there is a simple reason there is no such license: it is completely impossible to create one.
It is simply not possible to define the difference between certain commercial uses of a work, and other commercial uses of a work. Not just legally, but conceptually.
Let's take your example. You have a license that allows wholesale reproduction in some commercial contexts - the cover of a magazine, the illustration of an article - but does not allow selling the image "as a picture."
Does this license apply to selling coffee mugs with that image on it? Mouse pads? T-shirts?
Or, let's say that some company creates a full-page ad for their product, similar in form to a magazine article, and uses the image to illustrate that. Is this allowed by the blanket license?
The plain fact is that these types of uses are the same. Not just legally, but theoretically - both kinds of uses are wholesale copying of the image, with the intent to profit, but none are simply selling the image "as a picture" (and nothing else).
It may be possible that some photographer is OK with all of the uses we just talked about, but is not OK with selling a print of the image. But I don't know of any - all are either OK with all of the uses and selling verbatim prints (so use a free-culture CC license), or none of them (so use a NC license). Creating a new license for these mostly-theoretical artists would be a solution to a problem that doesn't exist.
This is exactly why I say CC is a joke, and won't work in the long term, because the second a CC license is abused, copyright becomes the default, putting us right back to square one.
Creative Commons has been around since 2001, and is still going strong, with millions of people using CC licenses.
Whether thirteen years is "long term" is up to you to decide, but I'd say that it's by no means a "joke."
And I have no idea what you mean by "copyright becomes the default." Copyright law is the only way that CC licenses can be enforced. Creative Commons licenses don't (and can't) remove copyright protections, so it's already "the default."
Nobody is claiming otherwise... at least, nobody involved with Creative Commons. (ASCAP, of course, claims that CC is an evil pro-piracy anti-copyright monster, but they're only spreading FUD.)
Oh, and a piece of advice regarding the permission culture: if you want to remove this restriction, the only choice, and I do mean only choice, is to ignore copyright completely.
First, that's hardly the only choice.
Second, that may work for people who are mere consumers, but it won't work for artists who want to share their works, since there's no way to signify to the world that they should "ignore copyright" on those works.
Third, there is a big difference between getting rid of "permission culture," and getting rid of copyright entirely. Most people here (myself included) are probably copyright minimalists, but few are outright abolitionists.
Fourth, if you "ignore copyright completely," there's a big likelihood that you're going to get sued. This is especially true if you're using the work commercially.
Fifth, while we're on the subject of the law, simply ignoring copyright will simply give ammo to rights holders and their lobbyists to create disastrous "enforcement" laws like SOPA. Nobody needs that.
CC licenses - if used and understood properly - solve most of the "permission culture" problems, without any of the bad results.
The problem is that few people understand them. This is likely because few people understand copyright law in general - see e.g. those useless "Privacy Notice" posts that are making the rounds on Facebook.
So the natural question is: when will Gates admit the same is true for software too?
I'm sure he is simply waiting for the temperature in Hell to dip below the freezing point, for the Pope to renounce Catholicism, and for bears to start using indoor toilets.
Yes, Microsoft supports some open source projects... when it helps to lock people into their proprietary software. But let's not forget that the term "FUD" was popularized by Microsoft's behavior, expecially towards open-source software.
This is insanely sloppy and irresponsible reporting. The order above is denying summary judgement, meaning the case is still in motion practice. It hasn't even come close to trial yet. This is not a final opinion, this is not jurisprudence, this is not what the article says it is.
It's true that it's not a final judgement, but it is an order ruling that, as a matter of law, the Turtles do have a public performance right under New York state law.
In fact, the judge gave SiriusXM until December 5th to bring additional facts to the case (not legal arguments), and if not, she would issue a default judgement against them:
Furthermore, it appears to the Court that there are no disputed issues of material fact as to liability. Sirius is therefore ORDERED to show cause by December 5, 2014, why summary judgment should not be entered in favor of Flo and Eddie as to liability only.
In other words, the only thing that would save SiriusXM from liability is if there were "disputed issues of material fact" - e.g. if SiriusXM could show that they did not, in fact, play the Turtles' music.
This is about as close to a final judgement as you can get without actually being one.
If it is like Klobuchar's bill was, it will ONLY apply to those who SEND the streams, and NOT to those who VIEW them.
And...? That's the whole problem.
Indeed, any streaming law would have to target those who produce and send the streams, because courts in multiple jurisdictions have found that merely viewing a stream is not any form of copyright infringement.
Is it bad that I recognised only two names from the above list (Ed Felten and Bruce Schneier)?
It's bad that the two names didn't include Brian Kernighan (creator of AWK, co-author of "The C Programming Language" with C creator Dennis Ritchie) or Bjarne Stroustrup (creator of the C++ language).
If you've studied CS, you'll probably know Hal Ableson (co-author of the SICP book on Scheme), Peter Deutsch (who I assume is L Peter Deutsch, Smalltalk and Lisp implementation author, Ghostscript creator), or Mitch Kapor (Lotus founder, original member of the EFF, chair of Mozilla).
The others I had to look up, but they're all really heavy-duty programmers and technology experts. You'd be hard pressed to find a group more knowledgeable about programming anywhere.
Question. When this article (and the sources quoted) say API, do you really mean method signatures?
That is indeed what Oracle is suing Google over. Though, technically, they are claiming that the collection of method signatures is copyrightable.
They already sued Google over the implementation of those methods, but Google did a (mostly) clean-room implementation. Google was found to have infringed something like a dozen lines or so, and they settled for zero dollars in damages.
Here is the relevant part of the district court's ruling:
So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical.
This is the part that was overturned by the appeals court, and is the subject of the Supreme Court case.
Unlicensed sharing as piracy came along much much later.
Actually, that's not true, at least not in the colloquial sense.
The word "piracy," used as a term for unlicensed copying, predates even the Statute of Anne. The first time that it was used this way (to my knowledge) was in "The Wonderfull Yeare" by Thomas Dekker, in 1603.
As a matter of law, I think the judge made the right call. The rights that California granted under its statutes were pretty clearly designed to be expansive.
This is especially true when you compare California law to the state laws of other states. Most of those other states explicitly limit the rights in a sound recording to reproduction and distribution. (They were written at a time when "bootlegging" was common.) California, in contrast, does not. It's also one of the few states that don't have explicit carve-outs for radio and television performances.
Nor does the "rights remaining" argument make sense, since federal copyright law explicitly leaves all pre-1972 rights intact.
This is a major ruling, and if it stands, it will have a drastic effect on anyone who uses sound recordings in California. Because the ruling isn't limited to Internet performances. In theory, any sound recording rights holder can sue terrestrial radio stations, bars, restaurants, venues, and anyone else who has played that performance in public, at least in California.
Are your privacy rights, which are the product of the government, not real?
My privacy rights are not a product of the government. They stem from my natural liberty to be free of intrusion by others.
Is the First Amendment not real, even though it's the product of the government?
The First Amendment does not create free speech rights. The right to free speech - a natural liberty - is innate to human beings.
It is not created by the First Amendment. Instead, the First Amendment says the opposite - that the government is simply not allowed to infringe on this natural liberty. It is not the product of legal statutes, but overrides them. (Using the Hohfeld terms you love to abuse so much, the First Amendment is a government disability.)
Copyright, on the other hand - a statutory claim - is entirely a product of the government. Specifically, it is a right of Congress that is created by the Constitution. Clause 8 does not secure natural rights, it allows Congress to create them if it so chooses. (In Hohfeldian terms, it is a Constitutionally-created government power.)
But you know all of this. So quit being dishonest.
...and there's your problem. Mike has answered every single one of your questions. You just refuse to see that he's answered them.
Seriously, you and I used to have some pretty involved debates, where I learned a lot (by reading the source material, and realizing that you're wrong, but still...). I was incredibly disappointed when I realized that you were the idiotic "moo, quack" dope who obviously was nothing more than a reactionary troll.
Incidentally, I'm pretty sure I know who you are in real life. I know this not because of IP addresses or anything like that, but because of information that you voluntarily revealed here in your comments, and because your legal arguments are so completely off the wall that only you could make them.
I won't reveal who I think you are, unless you tell me to guess. But trust me - your loony tunes style is unmistakable.
When posts are routed to your spam filter, sometimes it takes hours until they show up and sometimes they don't show up at all.
For the record: my posts are being "held for moderation" as well. And I have no inkling whatsoever that Mike, or anyone else on Techdirt, bears the slightest grudge against me.
Sometimes this stuff just happens. Deal with it.
It's not like Techdirt has any obligation to provide you with a forum for your stupid rants. And Techdirt is much, much better than most sites, which nowadays require you to link to Facebook or something. And he's not even remotely as bad as Trichordist - where Lowery not only blocked my emails and deleted my comments, but hunted down my school email address, and implied that I would get sued.
Disney is a sophisticated rightholder, so I find it hard to believe that it would use the song without permission.
Your entire post rests on the idea that a "sophisticated rightholder" would not infringe on copyright. Of course they would. They would infringe upon whatever copyright that they can, if the rights holder is someone who can not afford an expensive lawyer. If it isn't, then they can infringe however they like, because the artist can't afford to sue them.
As for the Master, he claims that Zimmerman’s rights are being violated, but then he also says that Zimmerman granted “certain rights thereto” to Virgin and Ultra that possibly are also being infringed. Which is it?
You're being disingenuous. Let's read the quote in context:
Moreover, Zimmerman was an exclusive songwriter of EMI Music Publishing Limited ("EMI") when he composed "Ghosts 'n' Stuff" (the "Composition") and granted certain exclusive rights in and to the Composition to EMI. With respect to the Master, certain rights thereto have been granted to Virgin Records Limited ("Virgin") and Ultra Records, LLC ("Ultra"). Zimmerman is unaware of any license(s) between Disney and EMI, Virgin, and/or Ultra granting Disney the right to synchronize the Composition with the Infringing Video or to exploit the Master in any manner or media. If Disney has any such licenses, please forward them to my attention immediately. Accordingly, hnot only is Disney violating the rights of Zimmerman, but it is also infringing upon the rights of EMI Music Publishing Limited, Virgin Records, Limited, and Ultra Records, LLC.
Clearly, Disney does not have any sort of licence. He only brings up the other parties to make it clear to the Court that Disney is infringing upon the rights of multiple rights holders.
The request from Disney is something that they do not believe Disney can provide, because they clearly do not believe Disney has any kind of license with any of those rights holders; it's simply boilerplate language.
So basically it claims infringement, but then admits that maybe other parties who hold some unspecified rights might have granted a license.
No, it claims infringement of the plaintiffs' rights, then accuses Disney of infringing upon the rights of other rights holders. It "admits" nothing.
Incidentally, it's pretty telling that you take the side of Disney in a copyright fight against an actual artist - but you always take the side of the rights holders in any case where the rights holder isn't an artist, but is a major media company instead. It demonstrates pretty clearly where your loyalties lie.
And, of course, describing Brown as a "thug" just shows a pre-disposition against Brown, and the willingness to believe the party line. It's no more than an ad hominem designed to portray the victim as a perpetrator.
So, basically, everything you said was wrong. It's extremely likely that you heard these falsehoods from right-wing media, and simply didn't check the facts.
It just goes to show that the last thing that anyone should do is "give the Wilson/Brown issue a rest."
What most people don't seem to grasp is the government is "of the people"
If you actually believe this, you're completely out to lunch.
The government is "of the lobbyists and those with political connections." Sometimes their interests coincide with the interests of "the people," but just as often, they are diametrically opposed.
Besides: the government is not just supposed to be "of the people." It is also supposed to be by the people, and for the people. Interesting how you conveniently left off those parts of the Gettysburg Address.
and those who work in government are just "the people".
No. They are people, but they are not "the people."
That means that they are prone to the same corruption as any other people who are given power. They're only human. But don't for one instant think that their corruption represents the will of "the people."
Do you honestly believe the police tactics used in Ferguson represent the will of "the people?"
You know all those people who do drugs, drive drunk, drive too fast, park illegally, don't pay taxes, and a myriad of other "little" offenses against the state (and each other) each day? They are the ones creating the situation.
Here's the difference: when those people break the law, they are punished. When the people in political power break the law, they get away with it. They are, after all, the ones who created the law in the first place.
For example, if you're a member of Congress, you are explicitly allowed to drive to fast and park illegally. Congress has also written tax law "perks" that are only beneficial to themselves.
But if that were the extent of their wrongdoing, nobody would really care.
Criminals and crooks at every turn, everyone thinking they are above the law, and that they can choose to follow or not follow the law as they see fit.
Here, you're just proving my point. If "everyone" does not follow the law, then that law is against the will of the people. Conversely, if the law really did represent the will of "the people," then "the people" (more or less) would follow it by choice.
Really, you are just an apologist for bad laws and bad lawmakers. It's appropriate that your username is "Whatever," since that's the only response your post really deserves.
Did Molyneux actually file a DMCA takedown or use one of the many other ways Youtube has to screw people over?
You should watch the embedded video. About midway through, the video narrator makes the point that Molyneux could easily have filed an abuse report to YouTube. But he didn't do that, and used the DMCA instead.
It could be that he was just confused. It's just as likely that he figured he couldn't file bogus abuse reports as easy as bogus DMCA reports. After all, the anti-abuse policy is YouTube's internal policy, so truly bogus reports can be ignored. The DMCA is enforced by law (what he would call "state violence"), so YouTube can't easily afford to ignore bogus DMCA claims.