You're focusing too narrowly on the analogy. You said "Lock-in = removal of choice." Your latest argument is that Linux does not lock you in because you can develop applications and release them with non-GPL licenses.

The choice has not been removed there. The choice has been removed for things the GPL license virally attaches itself to. If you want to change Linux at all and distribute it, then you have to release it under the GPL. Quite basically this is the "removal of choice."

You cannot choose whether the GPL restrictions apply there.

Instead of just playing coy, I'll get straight to my point. I find it entertaining that you're bent on ripping Apple and the iPhone/Pad/Pod for being "locked-in" when it commits you to shitting on Linux too.

For starters, copyleft licensing like the GPL exists because a copyright regime exists that extends property rights to software expression. Copylefted software requires these rights exist so that the copyright holder can legally give some of these rights away. Without owning the copyright to their software, authors cannot make a conscious decision to surrender certain copyright rights. After all, one cannot legally give away what one does not have.

So it makes no sense to say GPL is restrictive because of copyright law. Linux is restrictive because of the GPL, which uses copyright law. Linux could be in the public domain, but then you wouldn't get to control distribution, reproduction, or derivative works. Linux removes choice because it uses GPL rather than declaring it to the public domain.

No, your world falls apart without copyright. But rather than go off onto that tangent, would you like to address my point or continue with your red herring?

Linux has lock-in too, but to an even larger extreme. The GPL license is a bitch.

China hits like a girl.

Risk.

The right to free speech is not unlimited. Since it is commercial speech, any law abridging the speech needs to pass intermediate scrutiny - i.e. the law must further an important government interest in a way that is substantially related to that interest. So if the law bans the interest (protecting the health of citizens is important) without going too far (the narrower the better), it would fly.

The real issue is getting the law passed. As far as Congress justifying the law, the commerce clause would easily serve Congress. But special interests could hold it back.

Ok I just read 17 USC 120(b). That's exactly what I was looking for. For anybody else who reads this, here's what 120(b) gets at:

It is actually an explicit statutory exemption to the derivative work right (17 USC 106(2)). That is, it says the owner of the embodiment (the architectural structure) does not have to consult the copyright owner to alter the structure. So rather than an implied license, it's just a straight-up limitation on the author's (architect's) rights.

Now, I would argue that 120(b) also exempts the blue print modification, so that changing the floor plans for zoning or whatever would not violate the 106(2) right because of 120(2).

My argument goes something like this: If a building is just a different medium for blueprints, and medium does not matter, Bridgeman v. Corel (1999) ("Production of a work of art in a different medium cannot by itself constitute the originality required for copyright protection.") (this case is from the S.D.N.Y., but is representative of copyright law in all federal jurisdictions), then an exemption for creating a derivative work for the owner of the building also gives them the exemption for that new work in other mediums like blue prints.

Not sure if this would fly, but I think it's likely a fair use anyway for zoning/town council meetings.

Wow that last post got screwed up. I hate how small these text boxes are.

Well, that's quite a bit different than what you said above. I understand the 106 rights fine. I was looking for a court case or statutory exemption that provides that "the copyright owner [of the home] should be consulted" when you want to modify the house.

If you meant modify the floor plan, then I would not be surprised. I would be surprised if any court found that you need permission to modify the house. This could mean something as small as painting, or as large as an addition. Both are technically derivative works, and I would assume that the original contract comes with an implied license for derivative works for this (the new home the contract is about) single embodiment of the copyrighted work (the floor plan and the construction [which I think may also be a derivative work of the floor plan]), which is assignable at the licensee's exclusive option.

Well, that's quite a bit different than what you said above. I understand the 106 rights fine. I was looking for a court case or statutory exemption that provides that "the copyright owner [of the home] should be consulted" when you want to modify the house. If you meant modify the floor plan, then I would not be surprised. I would be surprise if any court found that you need permission to modify the house (this could mean something as small as painting, or as large as an addition. both are technically derivative works, and I would assume that the original contract comes with an implied license for derivative works for this [the new home the contract is about] single embodiment of the copyrighted work (the floor plan and the construction [which I think may also be a derivative work of the floor plan]), which is assignable at the licensee's exclusive option.

While I had not read that story, it doesn't materially change my post. I just read the case (2010 WL 653322 - it's not available in a federal reporter yet), and here is the jist of why my original post stands and your analogy is a false analogy.

To start, you said that "in order to be bound by [the copyright notice)", "you don't need to have actually seen a copyright notice." This is always true. It has nothing to do with the ubiquity of notice. After the US signed Berne, we eliminated formalities like notice, and - as I said - "Copyright notice is not necessary to somebody owning a copyright and enforcing the associated rights."

This is different from the ToS because ToS are contractual. Copyright is statutory. That is why ubiquity matters to ToS. We should know better that many sites have ToS, so we are bound. That said, I don't think every jurisdiction is so liberal with ToS application.

In any case, for copyright, it is not that "we should know better, so we're bound by copyright." This is why your analogy ("except. . .") to Maverick Recording Co. v. Harper is a non-starter.

And even false analogy aside, you misunderstood what happened in the case. Harper was trying to assert the innocent infringer defense in order to lower damages. But " 402(d) . . . gives publishers the option to trade the extra burden of providing copyright notice for absolute protection against the innocent infringer defense."

So what happened was that Harper made out a prima facie case for innocent infringement according to the district court, thus (as an issue of fact) the matter would be left to the jury. However, the court of appeals said, "hold on, even if you make the prima facie case ( 405(b)) the publisher has an absolute defense."

Harper lost because of 402(d), not because notice is ubiquitous. 402(d) would apply even if nobody knew that CDs had copyright notices on them. Once the notice is on the original, it's good to go.

Do you have a citation to an example of this ever happening?

I think you're mixing up two distinct issues here. Copyright notice is not necessary to somebody owning a copyright and enforcing the associated rights. It has nothing to do with "the ubiquity of the notice."

The eminent domain argument could be interesting, though I don't think it's ever been applied to intellectual property before - and that's the property at issue here, not the memorial. I can't see a court okeying that, but it's not outside the realm of possibility. Yet that doesn't really help in the way you'd like it to because the gov't would still need to pay the author just compensation.