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  • Aug 16th, 2012 @ 12:07pm

    Re: The authors here are simply wrong about a variety of their claims.

    Not to flog a dead horse over proving my point, but here is what the 9th Circuit federal appeals court itself said about fair use this week [ http://www.ca9.uscourts.gov/datastore/opinions/2012/08/14/10-56710.pdf ]:

    "In the years following the 1976 Act, courts have decided countless cases involving the fair use doctrine. Some commentators have criticized the factors, labeling them 'billowing white goo' or 'naught but a fairy tale,' echoing courts that threw up their hands because the doctrine is 'so flexible as virtually to defy definition.' Princeton Univ. Press v. Mich. Doc. Servs., Inc., 99 F.3d 1381, 1392 (6th Cir. 1996) (citation omitted). A leading treatise in this area notes that the statute provides “no guidance as to the relative weight to be ascribed to each of the listed factors,” and, in the end, “courts are left with almost complete discretion in determining whether any given factor is present in any particular use.” Nimmer on Copyright § 13.05[A] (footnotes omitted).

    We acknowledge the porous nature of the factors but nonetheless recognize that we are obliged to make sense of the doctrine and its predicates."

    Again, the authors' conclusion that "fair use is no vaguer or unclear than other rights of free expression" is a pure falsehood as the 9th Circuit itself points out here.

  • Aug 16th, 2012 @ 11:34am

    (untitled comment)

    "[F]air use is only occasionally litigated; this is particularly true now, since fair use is regarded with such favor by judges. Copyright holders with good lawyers understand that any greater record of the useability of fair use is not good for their side..."

    Try explaining that to the Defendant who lost in the SECOND federal appeals court decision involving fair use to come out this week alone...


    "[F]air use is no vaguer or unclear than other rights of free expression. Like with questions of libel, indecency or obscenity, there are clear areas of comfort and safety, marginal or risky areas, and troublesome areas. Most people most of the time know where they are..."

    Each new published case proves just how wrong this analysis is. Page 4 in the latest case from the 6th Circuit (linked to above states that the Defendant's counsel (a very knowledgeable and respected attorney on the East Coast who has been practicing IP law for nearly 40 years) advised the Defendant that it "could publish the photograph as 'fair use' without the need for permission". All of the many IP attorneys I know would probably be split 50/50 on this question.

    Again - facing IP questions in the real world of actual litigation is very different than the conclusions drawn up by academics and industry groups.

  • Oct 5th, 2011 @ 2:59pm

    Another amazing excert from the Golan v. Holder argument...

    From pg 39-40 in the transcript of oral arguments. I can only shake my head so much here.

    "CHIEF JUSTICE ROBERTS: What about Jimmy Hendrix, right? He has a distinctive rendition of the national anthem, and all of a -- assuming the national anthem is suddenly entitled to copyright protection that it wasn't before, he can't do that, right?...So he is just out of luck? And that's just one example of many, where you take existing works and you have a derivative work or something that is distinctive to you. So those people are just out of luck?

    GENERAL VERRILLI: ...the Copyright Clause already contains very significant accommodations of First Amendment interests. The idea/expression dichotomy, fair use; and -- and that is going to provide -- maybe -- maybe Jimmy Hendrix could claim fair use in that situation...."

  • Oct 5th, 2011 @ 2:57pm

    Excpert from Golan v. Holder argument

    Good lord! From pg. 37 of the transcript...

    "CHIEF JUSTICE ROBERTS: General, there is something at least at an intuitive level appealing about Mr. Falzone's First Amendment argument. One day I can perform Shostakovich; Congress does something, the next day I can't. Doesn't that present a serious First Amendment problem?

    GENERAL VERRILLI: I don't think so, Mr. Chief Justice..."

  • Aug 11th, 2011 @ 11:32am

    Patent MAD

    Given the fact that the Supreme Court's Bilski decision has not issued a bright-line rule which would close the book entirely on business method patents, and given the fact that the Patent Office is still in the habit of granting ridiculously broad patents (or at least not tossing them immediately when faced with them), perhaps the solution is to fight fire with fire.

    A modest proposal: Have somebody "patent" a business method for the "efficient collection of patent fees" (based upon the business model that trolls currently use). Describe it all in the patent application (i.e., bundling broad patents together from diverse sources, creating shell corporations, writing demand letters for settlement, collecting money from the company which allegedly "infringed", etc.). Then license non-exlcusive rights to this patent to any legitimate (non-patent troll) business who wants to use it for a nominal sum of one-cent.

    Once you have done that and have a patent monopoly granted on this business method, any time a patent troll tries to sue a legitimate company for infringement, the legitimate company would not only have its traditional set of defenses, but could then counter-sue the troll for infringing its patent on the trolling business method (and demand a settlement sum equal to or greater than the sum the troll is demanding).

    In other words, the very act of patent trolling would then become an act of patent infringement.

    In the absence of Congressional action to fix this problem, setting up an automatic system of Mutually Assured Destruction seems like an alternative that must be considered.

    Anyone want to help get this started? Perhaps we could use a Kickstarter.com campaign to raise money for the attorney and filing fees.

  • Jul 27th, 2011 @ 11:57am


    I'm not sure why, but you always gloss over the fact that non-literal copying can be infringing, that is, the test is whether they are "substantially similar."

    Nobody disputes that the current state of the law allows for liability over "substantially similar" items, and that such items can be "infringing" under the current state of the law.

    But (leaving aside the fact that none of the photos in this instance are "substantially" similar in any way) what Mike and I argue is that if you are going to have liability for "substantially similar" works, then its hypocritical for the legal establishment to claim that copyright doesn't protect "ideas". That is a false claim. It most certainly does protect "ideas" beyond their concrete expression. For the legal profession to state otherwise is a lie - pure and simple.

    The very definition of "copying" implies a literal cloned reproduction of an item. There is no such thing as a "substantially similar" copy. You can certainly have a substantially similar "work" or "idea". But if X is "substantially similar" to Y, then it is, by definition, not a "copy".

    The entire notion of copyright law protecting "derivative works" is completely inconsistent with the limitations that the social compromise over copyright was meant to embody. It also clearly hinders the creation of new works, rather than promotes them - which is what the very justification of the copyright clause is premised on.

  • Jul 16th, 2011 @ 10:53am

    Re: Re: Re: Re: Re: Re: Re:

    In the monkey case, almost all of the work was done by the photographer, and the money only triggered the shutter.

    100% wrong. The only "work" done in this case was leaving a camera out so that a monkey could unexpectedly take it and make photographs with it.

    Would you feel different if the photographer had set up an automated trigger under the monkey's feet?

    If the human photographer made deliberate artistic choices in terms of filters, lenses, f-stop, film stock (or digital equivalents), framing, etc., then yes. Simply having a force of nature or random event be the deliberately intended triggering device for the shutter would not divest the human from "authorship" in that scenario - but that isn't the case in this instance, and you know as such.

    We have a fundamental disagreement on what constitutes "authorship" here. You seem to be suggesting that because the human's camera was used, the human must therefore be the "author" (which contradicts my "camera theft" scenario which you already conceded to). I hold (as does the actual law) that deliberate creative choices must be guided by human intent in order for there to be "authorship" under copyright law. There mere decision to be in proximity with monkeys with a camera is not enough of a creative choice to convey "authorship" to a human when monkeys are the ones making the "creative choices" in this instance.

    If you create an abstract work of art by having a dog randomly track paint on to your canvas, you could claim copyright since you deliberately chose the color and texture of the paint for the process, the size of the canvas, the type of animal to make the tracks, etc. But that is very different than fixing your garage one day, seeing a dog spill over your can of paint and track it through your house floor and then trying to claim copyright on the random patterns. No copyright would be available in that instance since there is no human authorship. They key here is how the law could plausibly interpret the concept of “authorship”.

    It may be a silly distinction which differentiates these two examples, but then there are countless aspects of our current copyright laws which are entirely silly.

    The fact that UK law makes reference to both "creators" and "unknown" authors is irrelevant, since it assumes that all such "creators" and "unknown" authors must be human. Would you not agree? If you don't agree, then do we give copyright to a volcano whose lava flows create interesting rock formations?

    Even if an image was created entirely through human processes without any deliberate human "creativity" to guide it, it may still be uncopyrighted - such as the instance of a fixed-mounted security camera recording 24/7 which happens to capture a dramatic event. (Unless of course you'd also like to lecture Suffolk University Law Professor Stephen M. McJohn at tell him that he's wrong about copyright law too. You can read his scholarship on copyright which contains these conclusions here: http://books.google.com/books?id=Gq9VbEQnxaQC&lpg=PA20&pg=PA20#v=onepage&q&f=false )

    So sorry, even though you have now conceded my point about the "stolen camera" scenario, you now try to deny the facts in this case now that you have lost on the law. But the way you now characterize the facts is equally wrong. The human in this instance had his camera stolen by monkeys who managed to take photos with it. He did not purposefully set up his camera with pre-set conditions on the assumption that monkeys would take it and trigger the shutter mechanism in order to create a humanly-guided picture.

    You are still 100% wrong. You lost by arguing the law. You tries to change the subject by arguing the facts - and you've still lost. Now you will try to squirm out of this by changing the subject again no doubt (like pointing to the fact that copyright allows for "unknown" authors - even though it is clear that such "unknown" authors must still be human).

  • Jul 15th, 2011 @ 4:30pm

    Re: Re: Re: Re: Re:

    Justin, the only thing they would have to show is that they have a copyright on the image issued in the UK, and that is a simple as saying "my camera shot the image". The burden of proof would be to show that they do not have copyright, which is a pretty high hurdle.

    100% wrong.

    If I steal your camera from out of your hands, run off and use it to shoot an Ensel Adams-quality photo, you can prosecute me for theft of the physical camera and recover the actual film/digital card containing the image I shot, but you would NOT own the copyright on the photo I created. You could assert ownership over the single physical copy of the photo I created inside your camera, but you could NOT assert ownership over the copyright to it.

    To claim copyright privileges in the UK, you must claim "authorship". The fact that your camera was involved does not make you the "author" of the photo that I took with it. So it is irrelevant that "your camera shot the image".

    Again, one must first prove the existence of a valid copyright before forcing the user of the work to rebut the proof with further evidence showing that it either fell in to the public domain or that the affirmative defense of fair use applies.

    This is true both in the U.S. and the U.K. Your claims about the law in this instance are simply false and people who choose to believe you are simply deluding themselves based on their own ideological biases on how they wish the world would work.

  • Jul 15th, 2011 @ 11:46am

    Re: Re: Re: Re: Saying it was an "accident."

    Probably more accurately would be to compare this to the copyright on images taken at a wedding on the disposable cameras that some folks leave on the tables. I would assume the picture taker has no assumption of copyright ownership in those cases.

    Your assumption is 100% incorrect. Copyright law is clear that the picture taker would absolutely retain copyright in the image in this instance - absent an express agreement that they are taking the photo as part of a "work-for-hire" arrangement.

  • Jul 15th, 2011 @ 11:40am

    Re: Re: Re:

    Fair use might not apply because Mike has repeatedly stated he is not a journalists. This is a for profit blog, nothing more and nothing less. Fair use would be very marginal at best.

    Every major news outlet is "for profit" - The NY Times, CNN, USA Today, ABC News, etc. So trying to distinguish this forum as a "for profit blog" is of little relevance in terms of a fair use analysis.

    As for his "the photo is in the public domain" [argument], he would have to prove that.

    He would only have to prove that AFTER somebody else made a preliminary showing through proof that they owned a valid copyright in the image. The mere physical possession of an image is not enough to overcome this initial evidentiary hurdle.

  • Jul 12th, 2011 @ 2:23pm

    On Monkeys and 24/7 Security Cameras

    Pg. 20-21 of "Copyright: Examples and Explanations" by Suffolk University Law Professor Stephen M. McJohn:

    The limitation of copyright to "works of authorship" also implies an author. This appears to mean that a human created the work, using the requisite creativity. In a work made through a completely mechanical process, copyright might be denied on the basis that no one was the "author". If a security camera mounted in a lobby, recording 24-hours a day, captured a dramatic event, the video could be uncopyrightted.

    Computer-generated works also raise the issue of authorship. If works are generated automatically or are the product of some future artificial intelligence, there may be no human author. The question would likely be whether the work reflected originality on the part of a human, or whether the choices were actually made by a computer.

    "Works" created by natural processes or by nonhuman animals would also not be "works of authorship." Lava flows off volcanoes may form fantastical shapes, but are not copyrighted, not being the product of a human author. Elephants and gorillas have both been taught to produce paintings. The paintings are not copyrightable, not being works of authorship.

    Source here: http://books.google.com/books?id=Gq9VbEQnxaQC&lpg=PA20&pg=PA20#v=onepage&q&f=false

  • Jul 12th, 2011 @ 2:02pm

    Even the Copyright Registration Office Agrees That Monkeys Can't Hold Copyrights

    The following is quoted directly from Section 503.03 of the current Compendium of Copyright Office Practices (published by The U.S. Copyright Office):

    503.03 Works not capable of supporting a copyright claim.

    Claims to copyright in the following works cannot be registered in the Copyright Office:

    503.03(a) Works-not originated by a human author.

    In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.

    Check out the full publication here:


  • Jul 8th, 2011 @ 9:25am

    A Tragedy Devolving Into Farce

    An absolutely awful court decision - but consistent with the string of awful decisions on copyright interpretation that have oozed out of the courts in recent decades.

    Mike is correct that this not only destroys the idea/expression dichotomy that is (theoretically) supposed to exist, but also ignores the traditional "fixation" requirement that copyright is supposed to require under law.

    The concept of copyrighting "characters" outside of the concrete images or book passages they are depicted in destroys the concept of the fixation requirement. If I copy the concrete images of Sean Connery from 'Goldfinger', I have violated copyright (fair use considerations aside). But if I make my own creative film using a different actor in a white tux, drinking a martini and announcing himself as "Bond...James Bond..." I have not "copied" anything since none of the creative elements I have used were "fixed" in a previous work. It was made with a different camera, using a different actor, with different lighting, and different soundtrack which combines to recall a previously made character. But to the extent that a "character" can exist outside of fixed, concrete bounds means that in order to "copyright" the character, you must extend copyright into the realm of ideas - not fixed expression which copyright law is supposed to require as a Constitutional limit.

    This is just one of the many contradictions that modern copyright jurisprudence offers us. And why it is coming to an increasing head with how the free speech is used in the digital/information age.

  • Jun 13th, 2011 @ 12:18pm

    Re: Re: Re: Re: Re: Re:

    Re: Anonymous Coward, Mar 8th, 2011 @ 9:19am -

    Here is more proof that your comments are 100% wrong:


  • May 25th, 2011 @ 1:36pm

    The False Notion of Viable Parody Defenses

    Alas - There are many shameful legal authorities to suggest that a parody defense would not fly in this case. It SHOULD be a viable defense in this case as a matter of sane legal policy, but copyright law has jettisoned sane legal policies some time ago.

    A starting primmer worth reading here:


    There are other authorities which MIGHT suggest otherwise, but just how the holdings are to be applied in other contexts have proven to be as clear as mud:


    As Justice Souter (most regretfully) said in the link above: "[P]arody, like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law."

    "Case by case" with no clear answers is the key here - at least until you've spent thousands of dollars in court to have a judge tell you the answer (and then risk a liability judgment on top of that if you lose).

    Keith pretty much had it right in his comment above - If it happens to make the presiding judge laugh, then its "parody". If not, then its copyright infringement.

    Its all just further proof of what a disgrace the current copyright regime is - allowing judges to fashion themselves as art and literary critics, rather than the arbitrators of objective legal principles.

  • Mar 15th, 2011 @ 7:42pm


    Again, something that sounds innocuous enough until you realize that pretty much everyone is a repeat intellectual property offender every single day.

    Citation needed for this broad statement.

    Ok. Just off the top of my head? Here we go:

    Section 102 of Title 17 indicates that all literary works receive copyright protection and that emails qualify as "literary works" since they are fixed in a tangible medium of expression. See: http://www.quizlaw.com/copyrights/what_is_fixation.php

    Therefore, any time you forward an email to third parties without the express permission of the original author of the email, you are in violation of his/her copyright. Haven't we all done this?

    There's your citation. Do you genuinely need further legal citations regarding your cel phone camera capturing sculptures, billboards, photos or architectural works in the background without their respective creators' permission? Or are you just being obtuse?

  • Mar 9th, 2011 @ 9:35am

    Re: Re: Re: Re: Re:

    Here is a link to the Conductors' Guild brief to back up my claims:

    http://sblog.s3.amazonaws.com/wp-content/uploads/2011/02/02-18-Golan-Amicus-Brief-of-the- Conductors-Guild.pdf

  • Mar 9th, 2011 @ 9:33am

    Re: Re: Re: Re: Re:

    Justine, if you created (and completed) the work while it was in the public domain, you would (a) end up with a copyright on your new work (the movie), and (b) would face no issues because you worked from public domain material. You are only bound by the law and the restictions at the time of your actions (creation) not in some future sense.

    There is no domino effect, as you claim. Sorry.

    Here is what the Conductors' Guild has said about the issue in their amicus brief to the Supreme Court in this case:

    The "restoration" of copyright protection to previously available works both demands a new financial investment from orchestral groups and undermines their previous investments. These new higher rental fees inevitably will result in orchestral groups choosing not to perform canonical works that have been performed frequently for decades. Moreover, an orchestra’s earlier investment in its own sheet music is undermined by this restoration. If the work in question is newly protected, an orchestra is not entitled to perform it simply because it previously purchased a copy of the score. Instead, performance of such a work requires payment of a performance fee or purchase of a blanket license.

    [Ending emphasis added]

    Would you now care to rethink your claims on there being no 'domino effect'? Or do you feel that the Conductors' Guild is similarly deluded as I am, and that they really wouldn't have to pay performance fees on works they already acquired during a time when the works were in the public domain?

  • Mar 8th, 2011 @ 10:26am

    Re: Re: Re: Re: Re:

    Justine, if you created (and completed) the work while it was in the public domain, you would (a) end up with a copyright on your new work (the movie), and (b) would face no issues because you worked from public domain material. You are only bound by the law and the restictions at the time of your actions (creation) not in some future sense.

    Do you have any legal authority for this claim? I am honestly unfamiliar with any. The whole point is that I wouldn't be working from public domain material - it would be material that is/was given newly vested copyright protection.

    Let's say that instead of creating a derivative work, I made a straight digitally cloned copy of the original Metropolis while it was in the public domain. It is MY copy that I have lawfully made. Now Metropolis goes back into copyright and someone wants to make a copy of MY copy. Do you argue that since my copy was made during the public domain period that it is OK to copy from it? That would seem to defeat the purpose of putting it back into copyright. But if people don't have the right to copy my copy once Metropolis is put back into copyright, how can people suddenly have the right to make derivative works? The time frame becomes irrelevant here. It doesn't matter if the act of creation was made in the short public domain "window", and I know of no legal authority which suggests otherwise.

    What if I spent vast sums to start creating my derivative work on Metropolis, but only completed 95% of it by the time the original Metropolis was put back into copyright? I guess I'd just be out of luck then? How are we to determine at what date such derivative works are/were created since registration is not necessary?

    What if I take my newly created derivative work and immediately will them to the public domain? People should then be able to remake, remix and recreate the work - but under your scenario they wouldn't be able to, since it would still be violating the original Metropolis which now has been given newly vested copyright protections.

    It is easy to see the complete mess that would be created under the legal scheme you seem to support.

    The Amazon links you point are irrelevant. Nobody argues that the works are locked up - just that you have to pay for them when there should be alternative free avenues via the public domain (which directly affects one's free speech rights). It is the equivalent of saying a poll tax should be constitutional since it doesn't affect one's ability to vote - you just have to pay for the privilege. The Supreme Court has explicitly rejected that argument, as they should in this scenario as well.

  • Mar 7th, 2011 @ 10:59pm

    Re: Re: Re:

    Some of the works at issue include:

    H.G. Wells’ Things to Come
    Fritz Lang’s Metropolis
    The musical compilations of Igor Fydorovich Stravinsky

    The harm to free speech rights in taking even a small amount of works out of the public domain is far more significant than you seem to imply. You seem to ignore the domino effect that will occur with regards to derivative works that would otherwise be given separate copyright protections.

    For instance, let's say I create a remake of Fritz Lang's film Metropolis while Lang's film was in the public domain. I spend the sums to hire new actors, set decorators, camera crew etc. On top of that, I create both a new novelization and stage play based on my film (which again, is all based on the original Fritz Lang Metropolis).

    Since Metropolis is in the public domain, I don't need to ask anyone's permission or pay off any estate to create my new works based on the original work.

    After creating these 3 new works (a remake of the film, a novelization and a stage play), Mr. X licenses the rights from me in order to create a line of T-shirts based on my new works (which are given separate copyright protection, since they contain their own original and creative elements on top of the public domain film).

    After spending my time, effort (and perhaps money) to create these new works, the original Fritz Lang film is suddenly yanked out of the public domain and given copyright protection again. The Fritz Lang estate then issues a cease and desist letter to both me and Mr. X, claiming (quite correctly) that all of these new works now violate the copyright of the original Fritz Lang work.

    What should the response be? The best case scenario is that I and Mr. X now must pay large (perhaps crippling) fees to the Lang estate in order to distribute our newly created speech. The worst case scenario is that the Lang estate doesn't care how much we pay them, they want these new works permanently enjoined and destroyed.

    Either way, the ramifications towards free speech rights are staggering.

    Since copyright law no longer requires people to register works in order to get copyright protection, there is no way to know how many derivative works have already been created in the popular culture that were based on public domain works that were yanked back into copyright. The end result is a domino effect that ends up blocking new creative works that were made under the promise of a stable public domain.

    So this all affects far more than your misguided claim that "the moving from public domain to copyright for a small number of works [won't] significantly diminish anyone's rights..."

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