"Evil Overlords of the Techdirt Empire" (36:16)- just priceless.
That made my day (the rest of the podcast was interesting, also, I'm not belittling it) --- enough so, that I'm commenting here despite my embarrassment that I only just now have gotten to listening to this one...
> you will have used the image in good faith under the > licence offered, so you wouldn't be to blame for any misuse
My distinct impression was that US copyright law does not release one from liability in this case (this is not to say that a court might not find the argument convincing). I think that in the best case one would not be liable for punitive damages...
The underlying work is an intangible, and it exists even if all physical copies are destroyed.
No, the underlying work is an intangible, is non rivalrous, and exists so long as one physical copy exists. Otherwise you're just treating memories as if they were physical copies; once they're lost too, so is the work.
Your analogy between memory and physical copy works OK for copyright, but much less well for trademarks and patents. One could imagine an extreme version of patent law where, for example, language constructs could be patented. For example, I don't think that the widespread use of possessives in the English language is well-characterized as being a "memory". Similarly, trademarks rely on society's cognizance of the existence of an associated brand, something which I would also shirk at calling a "memory".
Others have noted in the comments that IP is a government-granted monopoly. In my opinion, it is more like a society-granted usufruct. Because of the non-rivalrous nature of the underlying creative works, they (theoretically) cannot be destroyed (after publication) --- which parallels the lack of abusus in usufruct. In addition, the term "monopoly" has always struck me as implying "absolute" (what would be a "partial monopoly"?), something which doesn't fit well with the existence, as a fundamental exception to said monopolies, of things like fair use.
Unfortunately, "usufruct" is terminology from civil law which does not have a good parallel in common law.
In Israel, in the same decision which considered fair use a right of the public rather than a defense, the judge states as the second point of her final summary that "it is questionable whether it is possible to grant an injunction preventing copyright infringement on a work which hasn't yet been created".
> You don't make those kinds of jokes in that kind of situation
One wonders what the justification for repressing this type of joke actually is. The widespread belief is that the situation is similar to the classic "yelling 'Fire' in a crowded theater", i.e., the danger which is averted by suppressing these jokes is the danger of having the passengers panic.
Do you actually believe that there was any likelihood whatsoever of this esoteric tweet, in and of itself, causing panic on a flight? Anyone knowledgeable enough to understand the tweet is unlikely to panic. And the particular "threat" in the tweet would seem to be "I can cause the oxygen masks to deploy", which doesn't seen to be very dangerous by itself.
so someone needs to mirror all of the CC content and make sure a free repository for it continues to exist
Actually, your previous sarcastic post is very on-topic, here. It should be perfectly legal for someone at an academic institution which pays Elsevier's blackmail money for this journal to run an automated process which downloads the articles of the journal (which were published by Wiley under a CC license) and puts them up for free on a competing website.
This whole thing smells of complicity between academic publishers to try to undermine the open access trend via "journal swapping". Or maybe... "journal evergreening"?
Similarly, you have the right to the fair use of copyrighted materials. You can fairly use copyrighted materials all you like. That's the point of your fair use rights.
How does this jive with the legality of DRM and the DMCA? Seems to me that either DRM would be illegal as violating my fair use "rights", or fair use isn't really a right.
Or is my fair use right the right to use the copyrighted material even if for all practical purposes it is impossible for me to do so --- kind of like Eldred where indefinite extension, even if it for all practical purposes contradicts "for a limited time", since it doesn't literally then it's OK?
Personally I like actual rights, not fictions thereof.
> doesn't change the nature of that very thing's molecules, or the law.
My reading of the post you are replying to is that FedEx is not refusing to ship it because it is illegal. This is merely a business decision: FedEx is refusing to ship it in order to reduce its chance it will be sued (or be hurt by negative PR) over a subsequent shooting incident.
If the other AC is correct, however, that FedEx has no problem with shipping actual firearms and ammunition, then this looks like a really strange business decision...
The duty associated with the fair use right would, like the duty to not trespass, be the duty to not sue, seek injunctions, or demand payment or takedown of any work that falls under fair use.
The sticker in this is "that falls under fair use". Since copyright law did not deign to explictly define what uses are "fair use", only a court can decide that, in which case either the copyright holder is being denied "due process" since he is effectively denied the possibility of taking the actions you have listed, or the "right" of fair use has been effectively castrated.