Terry Hart 's Techdirt Comments

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  • On the post: Would Copyright Work Better If It Was Treated More Like Property?

    Terry Hart ( profile ), 15 Oct, 2010 @ 08:32pm

    Re:

    I'm unaware of any situations where you can cut off someone's head to recover real property.

  • On the post: Where ACTA Disagrees With US Law

    Terry Hart ( profile ), 13 Oct, 2010 @ 02:27pm

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

    Yet, I dare you to name a fair use case where a judge goes outside of the four factors in determining fair use.
    Sony BMG v. Tenenbaum - the judge considered five additional, nonstatutory factors.

    William Patry states that "courts have routinely considered other factors" in his treatise on copyright and lists dozens of decisions where that happened.

  • On the post: Where ACTA Disagrees With US Law

    Terry Hart ( profile ), 12 Oct, 2010 @ 04:10pm

    Re: Re: Re: Re:

    Article 1.3 of ACTA states "This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party?s law." This would seem to me to address many of the exceptions and limitations on IPRs raised in the KEIOnline article. The scope of IPRs is already governed by TRIPS, which expressly provides for limitations and exceptions in Article 13.

    Regarding sovereign immunity and several of the limitations mentioned for gov't organizations (KEIOnline mentions the Nat'l Archives and Records Admin and the Library of Congress), Article 2.X, General Obligations with Respect to Enforcement, of ACTA provides "4. No provision of this Chapter shall be construed to require a Party to provide for liability of officials for acts undertaken in the performance of their official duties." In addition, the chapter on injunctions provides that "a Party may limit the remedies available against use by government, or by third parties authorized by a government, without the authorization of the right holders to the payment of remuneration provided that the Party complies with the provisions of Part II of the TRIPS Agreement specifically addressing such use."

    Regarding the statutory remedies in US law that are not based on "any measure put forward by copyright owners," these are consistent with the ACTA provisions highlighted above. It should also be noted that Article 2.2 of ACTA doesn't require judicial authorities to only consider damages calculated by any measure put forward by copyright owners. It only states that, under the ACTA, this is one of the options available in civil proceedings.

  • On the post: Why It's Important Not To Call Copyright Infringement Theft

    Terry Hart ( profile ), 15 Sep, 2010 @ 02:09am

    Mike,

    I'd be interested to know what strawmen I am picking. I cite some extraordinary claims about ACTA in my introduction to the series to give a general sense about what is being said, but each one is backed up with a link, so it's not like I'm making the quotes up. One of them was indeed from you, claiming that ACTA "could outlaw Google." Admittedly, that statement was made several months before the USTR draft release, so I apologize if I missed where you retracted that statement afterward.

    At the outset of my series, I stated my purpose. "There's a lot of confusion about what's in the treaty as well as concerns that it will radically alter the scope of US copyright law. With that in mind, I want to go through ACTA point by point and compare it to existing law." I provided a link to show an example that it is still valid that people still have confusion about what is in the treaty.

    I have chosen the point-by-point comparison because I have not seen it elsewhere, and I felt it would be somewhat helpful to understanding the context of the content of the treaty. It's an ongoing series, so I have not gotten to the point where I would address concerns outside of those based on uncertainty over the treaty's content or how they differ from existing US law.

    More to the point, I told you all of this in an email earlier today. I told you I actually share some of your concerns and am planning to address them when I complete the provision-by-provision comparison.

    I apologize if you take issue with the term "FUD" and how a look at the actual provisions of the ACTA takes away from your ability to raise concerns over it.

  • On the post: Why It's Important Not To Call Copyright Infringement Theft

    Terry Hart ( profile ), 14 Sep, 2010 @ 11:03pm

    Re: Re: Re:

    I continue to see uncertainty about what the contents of ACTA actually are - see this recent discussion on Wikipedia, for example - and had yet to see a workhorse, provision-by-provision examination of ACTA provision, so I thought it would be helpful to do so.
    To that end, I purposely limited myself to a side-by-side comparison of the officially released ACTA text to existing US copyright law. This was done only to place the scope of the substantive provisions in the context of existing US copyright law.
    I didn't mean to imply anything beyond this comparison - like, for example, US copyright law is perfect, ACTA mirrors US copyright law, thus ACTA is perfect. I certainly didn't mean to imply that there aren't concerns beyond the effect ACTA would have on existing US copyright law.
    My hope instead was to provide a starting point for understanding ACTA. Here's what it says, here's how it relates to existing US law. I think once we have that in place, it's easier to discuss the merits of the proposed agreement.

  • On the post: Bob Marley's Work Declared 'Work For Hire,' Family Can't Get Rights Back

    Terry Hart ( profile ), 13 Sep, 2010 @ 05:59pm

    Re: Re:

    Thanks! And I hadn't realized before posting the link that someone had beat ME to it :)

  • On the post: Bob Marley's Work Declared 'Work For Hire,' Family Can't Get Rights Back

    Terry Hart ( profile ), 13 Sep, 2010 @ 04:58pm

    Since the recordings in this case were made prior to 1978, the "work for hire" issue was governed by the 1909 Copyright Act, which has a slightly different definition of a work made for hire than the 1976 Copyright Act.

    The court opinion can be found at http://www.scribd.com/doc/37357484/Bob-Marley-Fifty-Six-Hope-Road-Music-v-UMG-Recordings-S-D-N-Y-Sept-10-2010

  • On the post: Are Non-Commercial Creative Commons Licenses A Bad Idea? Nina Paley & Cory Doctorow Debate…

    Terry Hart ( profile ), 09 Sep, 2010 @ 02:12pm

    I appreciate Cory's distinction between industrial and non-industrial uses, as opposed to commercial and noncommercial uses. The distinction is not recognized at law, but I believe it has merit.

  • On the post: Do US Visa Documents Have A Typo?

    Terry Hart ( profile ), 20 Aug, 2010 @ 12:46pm

    According to this article, Greek passports do the same thing.

    "To the naked eye, the holograms will look like simple lines, but they are actually words and phrases written in tiny letters which, Samaras explains, are an additional security feature because they may contain anagrams or deliberate spelling mistakes known to the authorities but not to forgers."

  • On the post: Colbert Helps Save World From Polka Pirates

    Terry Hart ( profile ), 28 Jul, 2010 @ 09:11pm

    The real story is somewhat different than how it appeared on Colbert.

    A well-known Warren TV producer has been arraigned on several charges for allegedly using city equipment to record polka parties and then making a profit by selling the recordings
    DeChausse, who goes by Fred Merle on-air, was charged with felony and misdemeanor counts of copying audiovisual recordings for gain and embezzlement.

  • On the post: Copyright Lawsuit Plaintiff Demands $27 Million; Gets $500

    Terry Hart ( profile ), 22 Jul, 2010 @ 06:35pm

    Re: Re: Re: (ad infinitum) Damages awarded

    The point is, should we punish others for no/little fault of their own for actions taken by reckless individuals? If the cup exploded on her legs I can see McDonalds being guilty of something, if the cup have breakdown for faulty design I can understand that, but at the time people knew coffee was hot and could cause burns, why put a Styrofoam cup between your legs?
    No, the correct question is who should bear the costs when a wrong is committed. Tort is not about "punishment" or "guilt" (though those elements play a role in some cases). This site has a good overview of the fundamentals of tort theory. http://plato.stanford.edu/entries/tort-theories/

  • On the post: Judge Says Damages In Tenenbaum Case Were 'Unconstitutionally Excessive'

    Terry Hart ( profile ), 10 Jul, 2010 @ 05:21pm

    Re: Re: Re: Re: No Electronic Theft Act 1997

    Anyone who has studied copyright law is aware of American Geophysical Union v. Texaco (1994) - defendant was liable for copyright infringement for photocopying journal articles to use in research (noncommercial infringement).

  • On the post: Library Of Congress To Store Your Inane Twitter Chatter For All Eternity

    Terry Hart ( profile ), 16 Apr, 2010 @ 08:58am

    legalities

    Saw some questions or comments concerning the legalities of this and thought I'd share what I've learned

    1) According to the terms of use, Twitter operates under the assumption that the user owns the copyright and is granting Twitter a nonexclusive right to reproduce and distribute that content over its system.

    2) There is no copyright infringement here. Technically, anything published in the US has to be deposited with the LOC within 3 months, though I'm not sure I've ever seen that law enforced in any way. That's all this is, although the deposit is coming from the LOC's initiative rather than the creator's.

    3) Twitter can help the LOC do this too, its TOS provides that

    You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use

  • On the post: Irish Collection Society Wants Hotels To Pay Performance Fees For Music Played In Guest Rooms

    Terry Hart ( profile ), 19 Mar, 2010 @ 08:12pm

    Oddly enough, I had come across a US case on this issue earlier today for a completely unrelated issue.
    The case is Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, Inc. (866 F.2d 278), from the 9th Circuit. The court found that in-room videodisc players did not constitute a public performance.

  • On the post: Supreme Court Says Courts Still Have Jurisdiction Over Unregistered Copyrights

    Terry Hart ( profile ), 03 Mar, 2010 @ 06:47am

    Doesn't change much

    You absolutely still need a registration to sue in just about all cases. The distinction the court drew here was between jurisdictional prerequisites and mandatory rules - a distinction that on the surface can appear to be mere semantics.

    Both bar you from bringing suit, the difference is that mandatory rules have some flexibility while jurisdictional requirements (subject matter jurisdiction, not personal) are for the most part completely rigid. You can't consent to lack of subject-matter jurisdiction, you can't waive it, and if neither party brings the matter up, the court can throw the case out on its own initiative.

  • On the post: Time To Change (Or Ditch) The USTR Special 301 Process That Pressures Other Countries To Adapt US IP Laws

    Terry Hart ( profile ), 20 Feb, 2010 @ 09:20am

    Ironic

    Not only did it take decades for the US to officially join Berne, but the US was the first country to have a complaint launched against it for violating TRIPS - specifically the portion that required implementation of Berne. http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds160_e.htm

    Ironic.

  • On the post: ASCAP Now Demanding License From Venues That Let People Play Guitar Hero

    Terry Hart ( profile ), 15 Dec, 2009 @ 09:05am

    Re: Re: Re: Re: Re: I guess i am lost

    That would be exempted under 17 USC §110(7):
    "(7) performance of a nondramatic musical work by a vending establishment open to the public at large without any direct or indirect admission charge, where the sole purpose of the performance is to promote the retail sale of copies or phonorecords of the work, or of the audiovisual or other devices utilized in such performance, and the performance is not transmitted beyond the place where the establishment is located and is within the immediate area where the sale is occurring"

    @Rob - ASCAP collects royalties for the public performance of music compositions, regardless of who plays them.

  • On the post: Are The Record Labels Using Bluebeat's Bogus Copyright Defense To Avoid Having To Give Copyrights Back To Artists?

    Terry Hart ( profile ), 19 Nov, 2009 @ 08:31am

    No

    No, the record labels aren't using the same theory as Bluebeat; two separate issues are at work here.

    Bluebeat attempted to claim that they were creating an entirely new sound recording from the original musical composition and were thus eligible for a completely new sound recording copyright. Anyone can do this right now, so long as they are not using the actual sounds from another sound recording (and have permission from the composition owner or follow the compulsory license provisions). I think the court, as well as most of us, didn't buy the fact that Bluebeat wasn't using the existing sound recordings to make their own sound recordings.

    In the case of record labels facing an artist terminating his license grant to them, one possibility of avoiding losing the recordings is for the label to create a derivative work based on the original sound recordings. Derivative works created before termination are still effectual after termination.

    The trick would be remastering or remixing the original recording just enough to create the requisite originality required for a derivative work copyright while staying close enough to the original recording to be acceptable as a substitute for the consumers.

    IMHO, simply remastering a sound recording is not enough to create a new derivative work, they would have to do more to the recordings. In the real world, however, the labels could get away with this until an artist challenges them in court.

  • On the post: Poet's Son Says No One Can Quote Father Without Paying Up… Even Academic Dissertations…

    Terry Hart ( profile ), 17 Nov, 2009 @ 01:53pm

    What about the Wikipedia entry?

    Wikipedia's entry on Zukofsky has several examples of his poems, wonder if Paul is going to go after them next?

    The full "copyright" policy really does have some gems:

    "In general, as a matter of principle, and for your own well-being, I urge you to not work on Louis Zukofsky, and prefer that you do not."

    "I can perhaps understand your misguided interest in literature, music, art, etc. I would be suspicious of your interest in Louis Zukofsky, but might eventually accept it."

    I wonder exactly what he means by a "narrow" view of fair use? Seems to me it's narrower than even the narrowest reading of the statute itself. Seems like he even hit this site - http://jacketmagazine.com/30/index.shtml - for use of quotations in several literary articles offering commentary and critiques of his father's work.

    Unfortunately, that example also shows the limits of fair use practice in the US. Paul can be as big a jerk as he wants and threaten anyone with a lawsuit, even if their use is clearly fair. A "free internet literary magazine" like above, or a struggling grad student, probably does not have the resources to defend such a cut-and-dry fair use in court; this limitation on copyright is only available as an affirmative defense after being sued (though the Jacket Magazine example may be one of those rare times someone might be able to succeed in bringing a DJ action for fair use.)