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Evidence of access requires a reasonable opportunity (more than a bare possibility) to view or copy P's work. It cannot be inferred through mere speculation or conjecture. To do this, you might establish a particular chain of events between P's work and D's access to that work (i.e. tell a story). You might also establish that P's work is widely disseminated. For music, look at record sales, radio performances, sheet music sales. Additionally, subconscious copying has been accepted since it was first embraced in 1924 (memory as a trick is not an excuse). But this is more a feature of saying, "you had to have access because it was so popular, even if you don't realize you don't remember." I think this is something we can all buy. I know I say things all the time that are trademarked catchphrases because they've simply seeped into my thoughts...damn talented marketers.
Second, striking similarity can be so great that proof of access is presumed and need not be proven. The better the story you tell about access, the less you have to show striking similarity. Likewise, the more strikingly similar, the less you have to tell an access story. How this is handled varies by circuit, which I can get into if you'd really like. But generally, it’s not similarity, per se, that establishes access; rather, similarity of two works tends to prove access in light of the nature of the works, like the particular musical genre involved, or other circumstantial evidence of access. Here you might look for unexpected departures from the norm, or error. And like you said, lots of expert testimony is useful here - but why shouldn't it be? If I'm comparing two songs, I want an expert to tell me whether the two's notes are so similar that there had to be copying.
It covers everything from writing to an online audience, Web standards, accessibility, grammar, style, syntax, and tips on how to manage risk in the digital world.
Yahoo! argues that this guide appeals to journalists, Web developers/designers/architects, content creators, mobile content creators, businesses of all sizes, advertisers, PR agencies, marketers, and newspapers seeking to digitally distribute. I have an advance copy and it is fantastic. While there are a few decisions I disagree with style-wise, the antiquated AP and Chicago manuals have something to fear. The editors clearly took this very seriously and are hellbent on improving the Web. Maybe Yahoo! really is going to reinvent itself and focus on being a media company rather than trying to be everything to everyone?"
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Basic infringement: (P is plaintiff, D is defendant)
1) P must allege and prove ownership of a valid copyright.
2) P must prove that D violated one of the exclusive rights reserved to copyright owners. One can only violate if there is copying-in-fact (or probative copying). This means that you are meeting the prima facie hurdle, rather than coincidentally coming up with the same thing. As such, P must prove that D obtained the protected expression and used that expression in their work (this is key with respect to your statement: there's a balance between access and similarity for proving copying-in-fact.). The analysis moves to the 106 rights only after copying in fact is proved. For example: "D copied from P's copyrighted work and the copying went so far as to constitute improper appropriation."
The biggest problem with this issue is how incredibly uneducated people are - especially on this website. One person posts one thing that's wrong, and everybody latches on because it makes copyright look stupid.
As far as the registration formality, introducing (rather, it's really going back to pre-Berne/1989 copyright) formalities [i]like[/i] registration just aids the big businesses and their representatives more than you'd want. Not requiring certain formalities allows the little guy to still enforce his rights, if they so choose, while not requiring they know about registration either.
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.
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.
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.
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.