Andy J 's Techdirt Comments

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  • On the post: Australia Pays $20 Million To Buy The Copyright Of Aboriginal Flag, But It's Still Not Public Domain

    Andy J ( profile ), 08 Feb, 2022 @ 01:59pm

    Irony, surely not?

    And there are those who say that Americans don't get irony: <a href="https://www.law.cornell.edu/uscode/text/4/chapter-1">Title 4 USC chapter 1</a>

  • On the post: Edvard Eriksen Estate Goes After Another Danish City For Having A Mermaid Statue

    Andy J ( profile ), 22 Aug, 2021 @ 03:03am

    Re: Re: Re: Term of copyright

    It has been damaged and repaired many times over the last century. The current statue is not even the original. https://en.wikipedia.org/wiki/The_Little_Mermaid_(statue)#Vandalism

  • On the post: Edvard Eriksen Estate Goes After Another Danish City For Having A Mermaid Statue

    Andy J ( profile ), 21 Aug, 2021 @ 01:31am

    Re:

    While I entirely agree that the copyright term today is too long, your reasoning here fails to take into account the fact that in continental Europe (ie excluding the UK and Ireland) the rationale behind copyright (or droit d'auteur) is based on the honour of the author or artist, not the economic bargin which underpins the US concept. That's why moral rights are big in Europe. For instance, in France they are perpetual, on the basis that no-one should infringe the honour of the author, even after death.
    That is the mindset which motivates Edvard Eriksen estate, which afterall makes no financial gain from the statue in Copenhagen.

  • On the post: Australian Court Ridiculously Says That AI Can Be An Inventor, Get Patents

    Andy J ( profile ), 06 Aug, 2021 @ 01:57am

    Re: What is not forbidden is allowed.

    If you and Mike actually read the judgment, that is exactly the question the court had to answer: does Australian patent law prohibit AI being registered as an inventor. Answer: No.
    In other words the legislators way back in 1990 (when the Aus Patents Act was passed) failed to look into the future and specifically prevent something they had not imagined. Pretty dumb huh?

  • On the post: Turns Out That Brexit Means Rotting Pigs' Heads, And Losing An EU Copyright Exception

    Andy J ( profile ), 23 Jan, 2021 @ 05:57am

    The reason that the UK could not continue to operate the EU's institutional variant of orphan works licensing was because the EU Directive required all orphan works in this category to be registered with the EU Intellectual Property Office in Alicante. As this is an EU agency, naturally once the UK had left, this could no longer apply.

    However I think it is highly llikely that, when the parliamentary time becomes available, the UK government will effectively re-introduce the same system for institutions, to be administered by the UK IPO, alongside the other orphan work licensing regime which is available to members of the public, and which continues to operate successfully. The article failed to make it clear that even under the EU system institutions still had to maintain an escrow fund in order to pay fees to a copyright owner who came along to claim their work. Incidentally, the fees which Glyn mentioned as being payable are comparable to the fees charged by the US Copyright Office in order to gain copyright registration.

  • On the post: Senator Tillis Plans Major Copyright Overhaul: Recognizes Legit Problems, But Current Solutions Are Lacking

    Andy J ( profile ), 23 Nov, 2020 @ 02:15pm

    Section 1201

    While "all of 1201 is outdated and not useful" may seem sensible when trying to solve the right to repair issue, but even if Congress did end up repealing that section they would have to re-insert something that looked a lot like Section 1201 (a)(1)(A) in order to comply with Article 11 of the WIPO Copyright Treaty which the USA ratified in 1999.
    That article says: "Article 11. Obligations concerning Technological Measures. Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law."

  • On the post: Banksy's Weakass Attempt To Abuse Trademark Law Flops, Following Bad Legal Advice

    Andy J ( profile ), 15 Sep, 2020 @ 01:44pm

    Registration doesn't mean revealing his Identity

    "However, as it now becomes clear, one reason he's avoided using copyright is because to register the work, he'd likely have to reveal his real name."

    Not how it works in the UK, we don't have any official copyright registration system. Indeed the UK law (like the US Copyright Act 1976 - see 17 U.S. Code § 302(c)) expressly acknowledges that an artist or author may use a pseudonym. If Banksy wished to register his work for copyright in the USA he can do so through an agent (such as Pest Control Office Ltd) and doesn't need to supply his real name. (see the Copyright Office Compendium section 110.05)

  • On the post: Apple Goes In Even Harder Against Prepear Over Non-Apple Logo

    Andy J ( profile ), 23 Aug, 2020 @ 08:00am

    The "Moron in a hurry" test

    Courtesy of Wikipedia:
    "The test was cited by iPhone maker Apple's lawyers in the 2006 lawsuit Apple Corps v Apple Computer, between record label Apple Corps, started by the Beatles in 1968, and Apple Computer Inc. According to a 1991 agreement, Apple Inc. retained the right to use Apple on "goods or services...used to reproduce, run, play or otherwise deliver...creative works whose principal content is music", but not on content distributed on physical media. Apple Inc.'s lawyers argued that it was not a recording label simply because it distributed music, so it did not violate the agreement. They argued that "[e]ven a moron in a hurry could not be mistaken about" the difference between iTunes and the Apple record label. Furthermore, Apple Corps' logo was a green Granny Smith apple, whereas Apple's logo was a "cartoonish apple with a neat bite out of its side"."

  • On the post: Copyright Office Weighs In After Wannabe Satoshi Craig Wright Registers Copyright On Original Bitcoin Paper

    Andy J ( profile ), 25 May, 2019 @ 08:14am

    It may cut it

    "So, this probably doesn't matter, because if Wright actually wants to enforce the copyright, then he'd have to go to court and prove that he was the legitimate holder of the copyright (and the registration by itself won't cut it)".
    That kind of overlooks 17 U.S. Code § 410(c) https://www.law.cornell.edu/uscode/text/17/410 which says that prima facie, registration shall be taken as evidence of the facts stated in the registration, ie valid ownership, and leaves it the court to decide where the onus lies for either proving or disproving that assertion. I suspect a defendant would have an uphill battle trying to prove that Craig Wright wasn't the author, if that was the way the court exercised its discretion.

  • On the post: UK Court Grants First Live Blocking Order To Stop New Infringing Streams As Soon As They Start

    Andy J ( profile ), 17 Mar, 2017 @ 01:30pm

    Fixing of work and sport as a protectable 'work'

    In answer to a couple of earlier comments, the copyright works at issue here were various logos and overlays which FAPL inserted into the video stream. These obviously existed before the transmission so they meet the fixation requirement. Scondly they were the works which the FAPL claimed were infringed by the streams from the pirate server not the footbal games themselves.

  • On the post: What Did The UK Accomplish In Revoking The Right To Rip CDs After Just One Year… Other Than Greater Disrespect For Copyright?

    Andy J ( profile ), 02 Dec, 2015 @ 10:42am

    Re: quite logical, actually

    Not quite as consistent as you may think. In Europe, if you own any software (computer program) which actually came on a DVD or if you're really old school, on a CD, then under the EU Software Directive you may legally make a bacKup copy of it. However if there is DRM in place, it is illegal to evade or crack the DRM in order to exercise your legal right to make a backup. Go figure.

  • On the post: Court, Once Again, Explains To AFP That Twitter's Terms Don't Give It The Right To Use Any Photo

    Andy J ( profile ), 20 Jan, 2013 @ 05:41am

    Getty and Safe Harbor.

    Not sure why you should find the idea that Getty is not a an OSP which qualifies as a safe harbor 'troubling', Mike. OCILLA is fairly clear in its defintion of a service provider. Furthermore 17 USC ? 512(k)(1)(a) says "the term ?service provider? means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user?s choosing, without modification to the content of the material as sent or received." (my emphasis). Getty fails on two counts. Firstly the user first submits their pictures to Getty for editorial scrutiny so does not submit directly to the website (as is the case with Youtube or Flickr). And secondly, Getty applies tracking metadata and a visual copyright notice on each image before it goes up on the site, so modifying the original submission.

  • On the post: UK Court Wants To Limit Copyright Trolling… But Not Enough To Stop It Entirely

    Andy J ( profile ), 30 Mar, 2012 @ 12:40pm

    Groundless Threats

    It is worth noting that under UK IP law there are penalties for anyone who makes groundless threats in allegations of infringement of Design Right (somewhat similar to the US Utility Patent), Trade Marks and Patents, but not in Copyright cases. If there was a similar clause in any future copyright legislation, maybe some of these speculative letters would be toned down or indeed ceased if the recipient had a statutory right to counter-sue where clearly unjustified statements have been made.

  • On the post: Who Gets The Copyright On The Photo Of A Beaten Gaddafi, Captured Off A Cameraphone

    Andy J ( profile ), 21 Oct, 2011 @ 12:14pm

    Anon @ 11.25. Since any dispute over infringement is most likely to occur outside Libya, the importanty fact is that Libya is a signatory of the Berne Convention. Berne stipulates that there is to be no mandatory registration of copyright (one of the reasons the US did not join until March 1989), and in any case the 1968 Libyan Copyright law says that although copies of a work have to be lodged with the Ministry of Information and Culture (and there is a penalty for not doing this) "Non-depositing shall not result in prejudicing the copyrights stipulated by this law. These provisions do not apply to works of art published in newspapers and periodicals, unless they were published separately."*
    Therefore the statement that "nobody owns the right because the work hasn't been registered" is untrue.

    *Translation/source: the Libyan govt "Copyright Protection Law, published in the Official Gazette, Issue No. 10 of 30/3/1968." wikipedia article on the Copyright Law of Libya

  • On the post: Photographs Are Mechanical Representations Of Facts, And Thus Should Have Only Thin Copyright Protection

    Andy J ( profile ), 09 Sep, 2011 @ 01:47am

    While I entirely agree that this decision (not to dismiss) is a bad one, it does not mean that at trial this will go against Rihanna, merely that the issues will be tested in court as opposed to being left in uncertainty. Clearly if the court finds against Rihanna, that would be a bad development.
    But John William Nelson's assertion that photographs are just mechanical copies of facts is equally wrong-headed. Clearly he has very little understanding of modern day photography which can, and usually does, involve a great deal of digital (ie electronic) manipulation. This tinkering with the 'facts' is similar to what an artist does when representing a scene on canvas. True photography is much like writing: the photographer chooses the visual elements he wants in the same way a writer chooses his words, Words alone or single musical notes are pretty much like facts; but once they are assembled in a particular way using skill and labor, they then become the expression of the author's ideas. I could provide dozens of examples of two photographs which show the same 'facts' but because of the way they have been cropped, lit and presented to the viewer, represent utterly different intrepretations of those facts. The camera is to the photographer what the brush is to the artist or the pen is to the writer.

  • On the post: Forget The Stormtrooper Costumes, Get Worried About UK Courts Saying They Can Judge US Copyright Law

    Andy J ( profile ), 04 Aug, 2011 @ 02:08am

    Re: Re: Re: Not overturning copyright, defining what the original copyright was for?

    See my comment at #47 about who conceived and executed the original idea. McQuarrie and Pemberton were not involved in the dispute.

  • On the post: Forget The Stormtrooper Costumes, Get Worried About UK Courts Saying They Can Judge US Copyright Law

    Andy J ( profile ), 31 Jul, 2011 @ 01:52am

    @MetalSamurai.
    While I agree that Scotland does have a separate legal system, the Copyright, Designs and Patents Act 1988 applies throughout the UK and therefore decisions in higher courts are binding on the Scottish courts. The UK Supreme Court is just that: the topmost court in the entire judiciary for the UK, just as SCOTUS is the USA.

  • On the post: Forget The Stormtrooper Costumes, Get Worried About UK Courts Saying They Can Judge US Copyright Law

    Andy J ( profile ), 30 Jul, 2011 @ 06:01am

    Clarification of the issues

    Several points need straightening out here:
    1. Andrew Ainsworth is not and never claimed to be the owner of any copyright in the design of the helmet. The original idea came from George Lucas and this was worked up into a painting by an artist named Ralph McQuarrie, and this in turn was made into a three-dimensional clay model by Mr Nick Pemberton (a freelance scenic artist and prop-maker). This clay model in turn was used with some slight modification by Andrew Ainsworth to vacuum-form the plastic helmets. At no stage was it disputed that, if copyright in the helmet itself did exist, then Mr Lucas would have been the beneficial owner of that copyright.

    2. The copyright issue turned on the difference between US and UK law over what was copyrightable. If the helmet was found to be a 'work of sculpture' then it could be protected under UK copyright law. If not then it was probably protected under the UK concept of Design Right which is roughly similar to the US Design Patent. Design Right has the shorter term of protection and as this term had expired by the time Lucasfilm brought the action, there could be no claim under Design Right legislation. The British court found that the helmet was not a work of sculpture; this decision was confirmed by UK Court of Appeal and finally by the UK Supreme Court.

    3. The argument about the jurisdiction of the UK courts went differently. As has been said, George Lucas obtained a default judgment in a Californian Court for infringement under US law and was awarded $20M damages. Andrew Ainsworth had no assets in the US so Lucas was unable to get his damages. Lucas therefore came to the UK courts to seek a new judgment for damages. While the court felt it was able decide about copyright under UK law, it considered that it had no power to hear a claim of infringement under US law. The Court of Appeal agreed with the trial judge. The Supreme Court disagreed on this point and said that as the court had in personam jurisdiction over Mr Ainsworth, it could hear a claim based on US law. This decision does not mean that the UK courts claim any jurisdiction over American citizens, but rather that US citizens may bring a claim against a UK citizen in the UK courts over copyright infringement. This latter concept should not be too hard to grasp if you live in the USA because it is not dissimilar to the Diversity Jurisdiction concept where although each state may have slightly differing statutes, an individual resident in New Jersey (for example) can bring a civil suit against a resident of California in a Californian court.

    Comment: It remains to be seen what, if anything, Lucasfilm will do now to try a recover damages from Ainsworth for earlier sales of the helmet in the US. It seems unlikely that a UK court would award damages approaching the $20M awarded by the Californian court.