The WIPO Copyright Treaty says this: "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."
The DMCA says this: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."
The DMCA literally ignores the requirement of a copyright nexus (which some courts are slowly recognizing as essential), and totally ignoring the fact that the WIPO treaty only intended to apply to circumvention for infringing purposes -- not non-infringing uses permitted by law.
Sure, the DMCA also says, "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." That should mean that the prohibition on circumvention should never be interpreted to allow the copyright owner to control uses beyond the limits of the copyright, but courts have been ignoring this, completely.
You are partially right. No license is needed to do what the law allows. But still, it is perfectly normal -- for centuries -- to treat sales of copies and licensing of works as not mutually exclusive. The common law on that point was codified in 1909 (and currently appears at 17 U.S.C. § 202). Another example, outside the scope of 117, would be, "I sell you this disc in which my work is fixed, and I license you the right to authorize two non-owners of this disc to reproduce the work onto their respective hard drives."
Also, in my prior example, a license to make a copy onto a backup DVD "for archival purposes" converts that into a lawfully made copy free from the limitation in 117(a)(2), so such EULA-licensed archival copy may be sold without infringing the copyright, wheras the 117(a)(2) archival copy may not.
Vernor v. Autodesk was horrible in that it created a false dichotomy of "licensed OR sold" with respect to "software". Adobe and Microsoft are big fans of claiming infringement of their copyrights in "software," but the Copyright Act does not even use that word. What is does talk about are "computer programs," which are literary works. Just like "books," these works can be licensed (e.g., I license you the right to make a copy of my literary work, and recite it in public), or sold (e.g., I bough a copy of your literary work). Copies are, of course, material objects in which the work is fixed. It is perfectly sensible to sell a disc along with a license -- e.g., I sell you this disc in which my work is fixed, and I license you the right to make two copies onto computer hard drives and one copy onto a backup DVD.
Christenson unfortunately failed to clearly state when it was referring to "software" as the intangible literary work and when it was referring to the tangible copy. But at least the context made that clear enough. It certainly seems to trash the Business Software Alliance's mantra that "software is licenses, not sold."
It would be nice for the Ninth Circuit to finally acknowledge the existence of Section 202, which makes perfectly clear that copies and copyrights are two different things. Ownership of a copy has no bearing on copyright ownership. Ownership of a copyright has no bearing on ownership of the copy.
My view is that the Ninth did indeed move the needle. There are active cases in the district courts in which Adobe is trying to claim that it only sells licenses for its "software". It muddies the waters, and some judges seem to take a first glance at Vernor as standing for the proposition that software is always licensed, not sold (though Vernor does not go that far, and Augusto certainly focused on ownership of the copy -- uh, phonorecord).
But I think Adobe knows its charade is on shaky ground. I mean, seriously, do its corporate assets include millions of discs and computer hard drives in millions of homes all over the world? Does it own my hard drive because I downloaded (reproduced the work onto my hard drive under license) it onto my hard drive, converting it into a copy of Adobe's literary work? For that reason, Adobe is placing more emphasis on a "license to use" the literary work -- a right found nowhere in the Copyright Act. It uses "serial number license keys" to purport to control who may "use" (privately perform?) its works, and where.
Our courts really need to step it up, and not let Adobe and its BSA cohorts redefine the Copyright Act. A vibrant first sale doctrine is essential to prevent those who depend on secondary markets from being disenfranchised from the promise of progress of science and the useful arts.
When I think of the "IP" bag, I include trade secrets. Although not created as a statutory right of "exclusion" (monopoly) like patents, copyrights and trademarks, Mike's framework still fits, and is perhaps better illustrated: Spilling the beans on a trade secret may get me in trouble because i spilled the beans, but the beans are not protected.
Even with copyright, Mike is right that we must look only to the contours of the right. The private performance of a movie, for example, is never infringing. It is perfectly legal to watch a movie, and to privately perform a movie. The fact that I do so from a stolen DVD makes no difference. The fact that I do so from an infringing copy makes no difference. So, I'm caught watching a movie using a DVD that I stole from a homeless man, that he found in the trash, that was illegally made from an illegal cam-cording of a movie being illegally shown in a theater using a reel that was stolen at gunpoint in order to finance a terrorist group? Watching it is perfectly legal, and protected b the First Amendment.
If a Republican Congress says it prefers to make antitrust laws the preferred way of dealing with something, what it really means is it doesn't want to deal with something. Ever since Reagan teamed up with the Chicago School Kool-Aid makers, "antitrust law" has been that weird uncle everyone tries to ignore during Thanksgiving dinners - a mere shadow of what it was 50-60 years ago.
If we have self-driving cars, the last thing I want is for Verizon to be doing deals with BMW and Apple to make sure their cars never crash into each other, while Comcast threatens Nokia and Chevy with slow accident-avoidance response times if they don't pony up what BMW and Apple are paying Verizon.
You have it exactly backwards. The Copyright Act specifically says that the right of the author to distribute copies of the work is "subject to" the right of the owner of the copy to distribute it without permission from the copyright owner. That is, you can't get a copyright without it being subject to the superior right of the copy's owner to lend it, sell it or give it away. And that makes perfect sense. It is quite common for us to own the tangible medium (paper, USB, computer hard drive) before the copyrighted work becomes embodied in it, making it a "copy" under the Act. If I own a piece of paper and you license me the right to reproduce your poem onto it, I still own the paper, and have the right to sell it. It should make no difference that I happened to be in Ontario at the time I reproduced it onto my paper.
It would not affect your sale of the taco itself, but it would affect the sale of any wrapper containing copyrighted text or images. Crazy, I know. Some video games have a copyrighted disc made in the USA and copyrighted packaging made abroad.
Ah, but you can copyright a recipe. See John T. Mitchell, Copyrighted Recipe for Scrambled Eggs, 2007 (Trademark Registration No. TX0007357813). And, "prior art" relates to patents, not copyrights. The devil is in idea/expression dichotomy.
It is incorrect to say that "obscene pornography" is illegal. Obscene material is not protected by the First Amendment to the U.S. Constitution (so held a 5-4 majority in the Supreme Court), but whether it is illegal depends on what specific jurisdiction you are in, what jury is judging it, and when. One court held that what may have been obscene 9 months earlier it not the same as what is obscene today, since obscenity is judged by the "contemporary" community standard, which may change rapidly.
On the question of "Whether the District Court erred by concluding that making a copyrighted work available for download on an online file-sharing network is insufficient to constitute a 'distribution' under 106(3) of the Copyright Act," I've always wondered whether the copyright owner position might backfire, and harm all copyright owners. Given that the 106(3) right is expressly made subject to 109(a) (the first sale doctrine), one would think that any expansion in the reach of 106(3) to cover making available a copy for reproduction over the Internet would necessarily expand the reach of 109(a) as well. Although the plain language of 106(3) clearly applies to "copies and phonorecords" distributed in tangible form (as those two are defined as tangible objects, if plain English can make leaving your copy out where someone can copy it a violation of the distribution right, then wouldn't anyone who legally reproduced a work from a copy or phonorecord that the copyright holder made available over the Internet necessarily have the right, without the consent of the copyright holder, to make that copy or phonorecord available to others? I know it sounds silly, but no sillier than saying I "distribute [tangible] copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership [of the physical object], or by rental, lease, or lending [of the physical object]" whenever I allow someone access to my copy sufficient to allow them to reproduce it.
Perfectly legal -- an has been forever. Often called the "first sale doctrine," it is currently codified in two sections of the Copyright Act. Section 202 says that copies and copyrights are two separate things, and selling one does not convey the other. Section 109(a) says that the owner of a copy lawfully made under the Copyright Act is entitled, without the consent of the copyright owner, to transfer title or possession to anyone. Section 106, which confers the copyright in distribution, makes it "subject to" section 109, so the right of the owner to rent, lend, sell or give away the disc trumps the rights of the copyright owner. But it is provides a huge benefit to copyright owners. I mean, how much would you really pay for a new car if you had to have the manufacturer's permission to trade it in, sell it, let someone else borrow it, or let the junk dealer pick it up? I'm willing to pay $15 bucks in part because I am free to part with it.
I've filed my fair share of briefs, and other lawyers have often used them either to aid their own research or even as copy/paste for their own briefs. I have no problem with that, but the bias in the current copyright system is that no one knows I have no problem with that. The legal presumption is that I am a copyright maximalist. Perhaps I should be adding a Creative Commons type of license to my briefs which would allow such uses, but with a proviso that prohibits services such as LEXIS or WestLaw from charging for them (or if they do, requires them to pay me a fee for permission).
Paul hit the nail on the head. Global corporate interests could care less whether the profits are counted in the U.S. column or some other country's column, provided they go into their bank accounts and to their shareholders. A huge chunk of so-called "protection" of U.S. economic interests is, in reality, an effort to gain better tools to price discriminate againt American consumers, and sue for some "IP" violation anyone who dares attempt to arbitrage the price differential. ACTA's objectives may mean greater revenues for U.S. corporations, but at the expense of U.S. consumers.
There is a certain "Duh! What did they expect?" element to this. I have no doubt that if we had a three-srikes law in the U.S., unauthorized downloading would spike. "Download all you can before the first strike." If people knew that the first time they got pulled over for speeding they would get a free pass, we would see more speeding. Yikes! Imagine a three-strikes law for murder -- everybody gets to get rid of at least one person during their lifetime. Investors in the copyight hodling companies who have pressed for these laws should hold management accountable for stupidity.
As I read what professor Craig Anderson had to say, my heart started beating faster, and I felt more aggressive -- I found myself starting to clench my fists, and wanted to do something physical. I wonder if they could measure whether reading jackass reasearch studies causes aggression?