The requirements for knowledge of the law must apply equally to a city cop with a degree in law enforcement and a small town cop with a high school diploma. There are many small towns in the united states where there is no advanced degree requirement for a police officer. I think this is a situation where the burden is on the court to determine if the statements of law in a warrant are accurate. They certainly do that during trials, so it would be a logical extension of their workload.
All they would be able to do is bring a civil case since a criminal case has to be initiated by the government's judicial branch. Then the government needs to wave the National Security trump card to prevent the case from going forward (provided you can get an american citizen who is a relative to bring the civil case.) So I don't think that lawsuits would work to bring this information to light.
If these sue happy people had just asked Techdirt to allow them to post a rebuttal article about what they felt was unfair instead of suing then I expect Techdirt would be more than happy to work with them. Instead, and sadly, they just want to hide things away instead of talk about them.
By definition, if the government upholds a companies trademark they restrict everyone BUT that companies free speech. They limit everyone ELSES freedom of expression. Loosing the trademark doesn't prevent the company from using it on their gear, it just removes the restriction on everyone elses ability to use it for their own purposes.
Removing a restriction on everyone BUT the company involved is not restricting the companies freedom of speech. So if you want to argue that the government shouldn't be restricting peoples speech using trademarks then you should have them remove trademarks all together.
So I don't believe that the Redskins Trademark issue is a freedom of speech issue, it is a commerce issue and should be pursued as such. Loosing the mark doesn't prevent the redskins speech or expression.. it allows other people to use it without paying royalties to the Redskins and the NFL.
A trademark and a copyright are both forms of limited monopolies. A trademark is a limited monopoly designed to avoid confusion in the marketplace. They have already lost that legal battle. Now they are attempting to misuse freedom of speech laws to regain the commercial benefits of owning the trademark.
Trademark and freedom of speech are two different things, not the same thing. No one is limiting their speech, they are limiting their ability to profit from their speech. Again, two very different things. If they want to keep the name Redskins without owning the trademark they can do that. If they want to change their name to something that they can own the trademark on they can do that. I don't think that they can re-fight the battle with the Trademark Office, but I could be wrong on that.
But to say that taking away their trademark prevents their speech? That I don't agree. It has nothing to do with speech and everything to do with commerce.
As far as I know, the football team can keep calling themselves the Redskins, they just can't trademark it. That means they can't have a monopoly on the name/logo and have the exclusive right to make money off of it. That is very different than saying they can't call themselves the Redskins.
I think this is an attempt to use free speech laws as an end run around limited monopoly laws. They just don't like the commercial ramifications of loosing the trademark.
Is it sort of wrong for me to hope that he also calls and threatens TechDirt for this article? Because I know Techdirt won't back down and it would be fun to see how far the cartoonist tries to take it. Boojum
Ah, ha! Your right. I just did some more digging and according to the AHJC:
Additionally, the following are NOT protected health information: police and fire incident reports, and court records. Also, birth records and autopsy records are not protected health information to the extent they are maintained by state agencies. In addition, if a state FOIA law designates death records and/or autopsy reports as public information that must be disclosed, covered entities may disclose that protected health information without an authorization.
No where in the source story did I see the word copyright, I DID see the word privacy. My understanding of HIPAA is that doctors, which includes coroners, are not supposed to give out medical records to people not directly related to the case.
And by the way, if a doctor is taking pictures of his deceased patient that AREN'T medical records then that is a whole new level of creepy..
I am not sure that there isn't a HIPPA violation here. If the photograph was taken as part of an autopsy then by my understanding it is a medical record. There is an exemption in HIPPA that allows a coroner to show photographs taken to other medical professionals for specific reasons.. which would imply that other reasons are covered by HIPPA.
2003 HIPPA Carification 45 CFR 164.512 (g)... Standard: Uses and Disclosures About Decedents 1. Coroners and Medical Examiners. A covered entity may disclose protected health information to a coroner or medical examiner for the purpose of identifying a deceased person, determining a cause of death, or other duties as authorized by law. A covered entity that also performs the duties of a coroner or medical examiner may use protected health information for the purposes described in this paragraph.
According to Dr. Stöppler autopsy records are covered by the same protections as those of a living patient. Medicine.net Reference
I'm not so sure that this counts as fair use. If I printed out a single image of the Top Gun movie and began handing it out on the street for free then I don't feel it is transformative. I'm putting out exactly what was was in the movie, if a small part of it.
I don't think that handing out individual frames via twitter is that different than passing them out as a printed out picture.
Also, I think the courts have upheld Disney's stance that a single Mickey Mouse stuck on the side of a building runs afoul of both copyright and trademark.
Now if he had commented on the frames or otherwise included some information he might have a case for it being a scholarly work...
Google really isn't punishing anyone, they are just improving their product. Their product is to link people with the content they are most interested in. In general, the spam sites are NOT the spots people are most interested in. So the changes to their algorithm moves them downwards in the responses.
It's no more punishment than it is to not return Automobile web pages when the searcher was looking for the history of the NSA.
Now they don't like it, certainly! But it's not being done to punish them, it's being done to make Google a better search engine for the people doing the searches.
The only way I could see the person speaking as having the copyright on what was written was if he had a contract with the journalist saying so. I HAVE seen that in the past, where a person talks with a writer with the agreement that it is for a specific article or publication and that the speaker get's the copyright. But that is only the case when a specific contract that both party agreed to says it.
Ehhhh... Ok. We need to apply the same critical thinking to this story (as much as we like it) as we do to the other stories that appear in techdirt and look beneath the surface.
Yes, EMI knew in certain circumstances that releasing free music can increase sales. That does not mean that releasing free music increases sales in all cases. That would require further study which doesn't seem to be referenced in this article.
Today we see studies that show at least a correlation between piracy, free releases, and increased sales, so we are looking at these emails from that perspective.
So honestly, I don't see this as an example of a smoking gun.
I think the fair use claim is fairly strong, but whether it's technically infringement isn't the important point. What losses or harm have the game's creators suffered from someone else effectively giving them free promotion? I'd argue absolutely none. Contrast that to the harm from portraying themselves to potential customers as copyright bullies attacking others in the gaming community who aren't even direct competitors. Sound pretty damn stupid to me.
Really? Which fair use claim do you feel applies? I was unable to think of one.
But that it was copyright infringement was the point of my statement, in answer to the person who thought there wasn't any. Honestly, I agree they seem to have handled it poorly. I would think they would have granted the company a limited copyright and used the good will to suggest that the company actually license or sell their game as part of the product. That way both groups make money.
However, just because I think that's better doesn't mean the copyright owner thinks it was. They could have gotten badly burned on other deals they made. They might not like the people who have the kickstarter. Their religion may prevent them from profiting from their product. They might be contracturaly obligated to the original artist to prevent others from using the art. I don't know. The truth is that we don't have laws to prevent people from being assholes. We can choose not to do business with them, to encourage others not to do business with them, to make fun of them, and all sorts of other options. But the truth is that they do seem to have the copyright that they are claiming, as opposed to all the news reports on groups who don't have a valid copyright but still file a DMCA takedown request.
In this case, I'm glad to see the problem was quickly resolved. I would have wished that the company had contacted the android joystick maker first, rather than open a DMCA takedown.. but at least this time they seem to have the right to request a takedown. Now all we need to do is get the DMCA repealed.
Brand Confusion has to do with Trademark, not Copyright. Copyright has to do with who has the right to make copy's of a particular work. We have exceptions for fair use, but I'm not sure that applies to this case. I also don't feel that the use here was transformative. Indeed, I feel they were using peoples enjoyment of the games displayed on their console to better their chances of getting money.
Also, I don't agree you can use a screenshot of mario to sell game controllers without permission from the copyright holder. Until the copyright laws are changed, I believe that is the case. What you CAN do is screenshot (or copy the cover or many other things) mario if your selling the Mario game you bought before, because you have a right to provide an example of a work as part of selling it.