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Comment Re:SCOTUS unanimously says otherwise, Congress (Score 1) 228

That list looks familiar. You may not like the list, but it's the list that Congress put in the law. The list isn't comprehensive, but it is law - statutory federal law.

Yes, I know what you were referring to. My dislike for the list has nothing to do with what is and isn't in it; I dislike it because it section 107 is worded in a rather confusing way, and it often trips people up.

What it actually says, rearranged for clarity is:

[T]he fair use of a copyrighted work ... is not an infringement of copyright.

[To aid in the determination of] whether [a particular use] is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

[If the use is determined to be a fair use, by] consideration of all of the above factors[, it is irrelevant that the work] is unpublished.

[By implication, courts are free to also consider other factors to aid in the determination.]

[Although it is tautological to say it, fair use] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research[, is ultimately fair use, and thus not infringing as per the above. However, criticism, comment, news reporting, teaching, scholarship, and research which are not fair use, may be infringing.]

Thus, the list is bogus. It confuses people into wrongly thinking that the only uses which are fair are the ones on the list, and that if the use is on the list, it must be fair. Neither is true. They're just examples of things that might be fair use, or might not be fair use, depending on circumstances.

Unanimous SCOTUS opinion in Campbell vs Acuff-Rose "fair use is an affirmative defense".

And IIRC, that was not relevant to the case, which was actually about whether uses may be presumptively unfair, which the Court found was not so. Essentially it's dicta, and Harper & Row is even more so, as there was no mention of whether it was an affirmative defense until the opinion, and it too was not relevant to the case, which dealt with whether any of the uses on the list were presumptively fair, which the Court also found not to be so. In fact, I'd say that it's completely built on sand: The only mention of it being an affirmative defense comes from a cite to a 1967 House Report, which merely says that the pre-codification form of fair use was historically often raised as a defense. The report then goes on to say that it would be wrong to place the burden of proving fair use on either side, which directly undercuts the idea of it being an affirmative defense which must be raised by the defendant or else waived.

The better case to look at is Sony:

Moreover, the definition of exclusive rights in section 106 of the present Act is prefaced by the words "subject to sections 107 through 118." Those sections describe a variety of uses of copyrighted material that "are not infringements of copyright" "notwithstanding the provisions of section 106." The most pertinent in this case is section 107, the legislative endorsement of the doctrine of "fair use."

Indeed, the statute itself is the best support for the status of fair use as not being an affirmative defense: The grant of copyright itself in section 106 is limited in scope so as not to cover the territory taken out of copyright by section 107, among others. Although for reasons of judicial economy, there's no reason to even bother with fair use unless a prima facie infringement can be shown, the statute clearly states that fair uses cannot possibly be infringing, as the copyright just does not extend that far; there's no mention of whether it has to be shown or not. Hell, 17 USC 108(f)(4) actually refers to "the right of fair use as provided by section 107."

Happily, we're beginning to see some success in fixing the mistake perpatrated by Harper & Row and Campbell, with cases such as Lenz v. Universal Music. There's still a long way to go, but it's a start.

think you'll find that I don't shoot my mouth off without knowing what I'm talking about. When I say "the law is ...", I'm probably quoting either the statute or SCOTUS.

Even SCOTUS gets the law wrong with alarming frequency. It's a bad idea to treat what they say as gospel, and even they know this. My favorite example is from Lawrence v. Texas, where they said of their previous decision in Bowers v. Hardwick, "Bowers was not correct when it was decided, and it is not correct today."

Comment Re:fair use is criticism, not competition (Score 1) 228

Primary categories that -can- be fair use include

Your list is bogus. Any use "-can-" be a fair use. However, no use is necessarily a fair use. Certainly there have been uses which weren't types you listed, and there have been uses which did fall into the listed categories, but were determined not to be fair.

Note also that with regard to the classic four prong test, additional prongs may be added if helpful, and the test isn't mean to be applied mechanistically.

A professionally produced "Star Trek" film certainly COULD compete with Paramount's 2016 Star Trek Film, "Star Trek Beyond". In fact, if it's available on Amazon, consider someone tells their spouse or parents they want the Star Trek DVD for Christmas. It's entirely possible the gift-giver (who isn't a Star Trek fan) would buy the wrong one, buying the unauthorized movie rather than Paramount's official Star Trek.

This is unlikely. The question is essentially whether the use is a substitute for the original work. Mere confusion isn't really relevant; you're looking for people who say that because they got a copy of the work which is allegedly a fair use, they no longer have a need for the underlying work.

Note that fair use is a "defense".

No it's not. Fair use is an exception to copyright. However, the person engaging in the use is better able and better motivated to make the argument of fair use than the copyright holder trying to prohibit it. For this reason it is treated like a defense as a matter of procedure.

Comment Re:Curious (Score 1) 228

Meanwhile, Xerox is not a genericized trademark, though some think it is.

It may be generic, the issue simply hasn't arisen, so far as I know.

The key to whether or not a trademark is generic is exactly what people think it is. If enough people think that XEROX is synonymous with photocopier, rather than being a specific brand of photocopier, it's generic, regardless of whether the Xerox company failed to try to protect its mark.

XEROX, KLEENEX, and BAND-AID are probably generic, but have simply never been challenged.

Comment Re:Reliability of refurbished booster is unknown (Score 1) 163

Why would you want to cut your production rate? Both reusability and economy of scale are essential in cutting launch costs. SpaceX ought to be working on internal projects that can use any excess launch capacity until there are enough customers, though, preferably ones that will help further the business. (Like electric space tugs and refueling / repair / refurbishment drones)

Comment Re:Right decision. (Score 2) 118

Except they are, which is why they can be bought and sold not unlike domain names.

No, not that freely. Just outright selling a trademark would be considered naked licensing, i.e. the transfer of the mark, without the reputation in the marketplace that the mark stands for. The result is that the mark is treated as having been abandoned, and that any previous junior users of the mark now have seniority over you if you want to reestablish protection.

To transfer a mark correctly is a lot of work, and takes a lot of time. It's generally part and parcel of the sale of the entire business that uses the mark, so that the reputation is preserved.

Submission + - Chicago Professor's P vs. NP Breakthrough? (chicagomag.com) 1

djupedal writes: László Babai, a legendary mathematician and computer scientist at the University of Chicago, seems to have made “potentially the most important theoretical computer science advance in more than a decade."

He has proven that any two networks, no matter how complex, can be compared in “quasi-polynomial time"—not polynomial time, but not bad.

Comment Re: This is getting tiresome (Score 1) 177

And when the government tells me that some foreign group is so dangerous to us that they must be destroyed at all costs, even though I'm more likely to die from slipping in the shower than at their hands, and are so persuasive that they must be totally censored, they're trying to induce terror for the purpose of shoring up their own support domestically.

I would rather risk foreign terrorists posting videos on YouTube than allow our state to engage in terrorism and censorship. The damage that our own government can cause to us, especially since censorship and other infringements of our rights tend to spread and corrode our values, is far greater than any two bit gang can cause with mere guns and bombs.

The first rule of countering terrorists is to not allow yourself to become afraid of them. If they can't terrify you, they can't get you to harm yourself, which is the best weapon they have in their arsenal.

Comment Re: This is getting tiresome (Score 3, Insightful) 177

No, other people need to know them too, or else you leave yourself open to having government authorities declare people to be terrorists regardless of whether they really are or not. Perhaps the victims of such false accusations are merely peaceful political opponents; you won't know if they're censored, and it's hardly unheard of for those in power to use any tool against those who would limit their power or remove them from power.

We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.

Comment Re:Private sector will always do it better. (Score 1) 352

> People *need* healthcare. They get sick. They don't *need* Internet access;

Ok so give up your telephone, electricity and plumbing. You don't *need* any of that. People may not need Facebook and Twitter, but some level of remote communication makes life a whole lot easier (not to mention efficient). If I have internet I don't need any other telecommunications, internet is the modern information carrier.

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