There are numerous corrections raised throughout these comments. There's no need for me to repost them. There are also numerous sarcastic comments that would be trolling if directed at a person rather than copyright law. It's interesting (for two reasons) that you accuse *me* of adding nothing constructive to the dialog. First, much of what appears in these comments aren't intended to be constructive. Second, the result is that there isn't much of a dialog. My apologies to those that are actually addressing these destructive arguments seriously by citing case law and explaining the concepts to these trolls. I don't mean to criticize your legitimate attempts to educate. I, however, don't believe they seek an education, so I won't take them seriously.
Your hyperbole doesn’t help, Techdirt. This majority decision doesn’t feel right to me, but this isn’t as easy a case as you state. (Actually, the 8-1 decision should have been your first clue on that one.) There was a strong odor of marijuana, and that doesn’t suggest that there’s marijuana hermetically sealed in plastic and stored underneath the floorboards. It suggests that it’s being consumed, and thus destroyed. If the defendants were merely “cutting” the drugs for distribution, which also could explain the smell’s strength, there’d still be exigent circumstances, as there’s reason to believe that the drugs were soon to be moved. Exigent circumstances existed before the cops even knocked, despite Justice Ginsberg’s assertion otherwise. Moreover, it’s absolutely true, as the majority points out, that “in some sense the police always create the exigent circumstances.” I agree, of course, that this is ripe for abuse, but that’s always the case with the Fourth Amendment and is why we have the courts.
That may not be how most people think, but that's how the Constitution frames the express right of the Federal government to grant copyright monopolies. As happens many times throughout the Constitution, an interest (progress of arts) is served through a contrary mechanism (copyright), and the two sometimes are in conflict.
With regard to #1, the author (the lawyer) of the article never really justifies this statement:
"On balance, ownership of a domain is too important a private right and preventing copyright infringement is not an important enough public goal to justify seizure without prior notice or hearing."
The standard is vague, and thus reasonable minds can disagree. The free speech argument (#2) is quite compelling, though, especially in light of the points made in #5. I'm concerned that the precedent being established is a step in the wrong direction.
In light of the Eldred decision, commentators like the author here have cried "Uncle!" regarding the term of copyright. (Really, what else can they do?) So now they're trying to dilute copyright in order to counter the negative effect of excessive copyright terms. If successful (and to an extent it has been), the result will be a tangled web of stupidity rather than a properly balanced copyright system. It's hard for me to criticize the author when this is the only choice the legal system has given us. Hopefully, one day other countries will readjust the way they handle copyright, and practical considerations will force us to go along with treaties containing those readjustments. I'd rather we make the fixes ourselves, but we have a stubborn political system, and special interests are all over this issue. I don't expect the fixes to be initiated internally in the USA.
Maybe the executives at NBC (and their attorneys) aren't the babbling idiots the article makes them out to be. Maybe after decades in the business they actually learned something about how to run a network. The fact they stay afloat despite rapid technological changes is a testament to their abilities. Or do you think they're "too big to fail"?
First, for the technologically ignorant, this might not be such a bad prophylactic. Some people can't get around it. More importantly, though, is that if you're right, you're being babies about this. Who cares? If they spend a ton of money putting together a website they want to secure, what's the big deal.
Yes, Eldred gave copyright owners way too many rights, and yes, that has probably made a bad economic system even worse, but this isn't worth the time that's being spent on it. My purchasing decision isn't affected one bit by this, and the reason is that 1) I'm an adult, that 2) doesn't complain for complaining's sake.
Move on with your lives, people. The world doesn't owe you nearly as much as you demand from it.
Ah, yes. Trade secrets. The forgotten 4th area of intellectual property that even IP attorneys sometimes forget. Of course, it's not *really* a trade secret unless you have an NDA, but keeping your own mouth shut has the same effect. :-)
Fair use exists as a vague means to avoid absurd results when enforcing copyright law. It prevents us from losing the forest for the trees. If a full article is posted verbatim, then there's no reason to visit the original site, resulting in a loss of hits to the site. This damages the original site's prestige and/or ad revenue, potentially taking a good content producer out of the market and robbing the public of the producer's quality content. Clearly, this is a perfect example of what copyright law is designed to prevent. Regardless of your feelings towards Righthaven, you would be losing the forest for the trees if you supported the not-for-profit on this issue. (As for the rest of the case, I have no opinion because I haven't followed it.)
How could anyone seriously confuse the restaurant logo with DC Comic's logo? The restaurant logo isn't just an outline of a bat. It also includes words demonstrating that this is a BBQ restaurant. It's a completely different industry. Now I admit that having the same words and replacing the bat symbol with, for example, the detailed New England Patriots symbol could be problematic, but the bat outline is far too simple a design to allow all permutations of it to go to the hands of a single trademark holder in a single industry.
I'm not sure I agree that the distinction represents bad law in all cases, but we need to ask a further question when asking if satire is outside the scope of fair use. I agree we need to protect the copyright holder's interests, but how does the satire affect either the value or the sales of the copyrighted material? While I suspect the affect in both the Mickey Mouse/George Bush and Don Henley scenarios is nothing, in cases involving less well-known copyrights, the affect might actually be positive. It's essentially free advertising, and less well-known copyrights should welcome that. Either way, I'd say that fair use seems an appropriate defense.
Now, if satire were handled in a way that the court deemed to form a bad association for the copyrighted material, then perhaps that satire should not be fair use; however, I'd rather the court perform that analysis than simply say that satire is per se outside the scope of fair use. Remember, we grant a copyright not as a reward to the creator for a job well done, but rather as a mechanism to assure a richer culture to the benefit of the public at large. In other words, the copyright monopoly is a means to achieve a goal, and if that goal isn't being met, we should change the nature of the monopoly.
You're overstating your argument a bit. I agree that Bogart, LLC's suit is a bit of a stretch, but don't be so critical of likeness rights. There's a fair balance to be struck. Celebrities lose privacy rights, which makes likeness rights fair, although cases like this show that we still need to hammer out the details. Of course, many celebrities are hypocrites and complain when they don't enjoy the exact level of privacy that you and I have come to expect, but that shouldn't affect whether we grant likeness rights. It seems to have become the American way to want something for nothing. :-)
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