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use is determined to be a fair use, by] consideration of all of the above factors[, it is irrelevant that the work] is unpublished.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

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: Micropayments? (Score 2) 223

Well, part of it is that even a small payment can still incur a psychologically large cost. If each user post here on /. cost one cent to read, would you want to have them load automatically? Probably not, many of them are not worth that much, and you could quickly run up a bill of a few hundred dollars a year on that sort of thing from this site alone. So instead you'd have to take more time to think about what was worth spending even a little on, because it adds up and the price doesn't really match the value to you of the thing you'd be paying for.

Something similar happens when people have metered or capped Internet usage compared to at least nominally unlimited usage.

You really can't avoid this problem unless the micropayment is so small that it is likely not worth the cost to implement. I suppose if I knew that a year's worth of micro payments for me, for everything I use, was no more than about a dollar a year in total, it wouldn't be so much that it would feel like I was wasting money on the Internet. But because the average user doesn't want to spend a noticeable amount ever, and there really aren't that many users in comparison to sites, the resulting pie of money wouldn't be much to split up. (Especially once you reduce the amount to account for lower average incomes elsewhere in the world)

Comment Re:On this I side with facebook (Score 2) 147

Option 2: Active editors. These forums are cultivated, maintained, and very ban-heavy. As a side-effect, the forum can be held responsible for third-party content.

Not true in the US (other than, potentially, with copyright issues and the like).

Remember, the CDA was intended to encourage providers to engage in censorship. Since the previous state of affairs was as you suggest, the way that they were encouraged to censor was to remove liability for material posted by third parties. But since many sites don't care, and the CDA protects them fully no matter what they do or don't do, it didn't really work out. Also other parts of the CDA turned out to be unconstitutional.

Comment Re:Excellent. (Score 1) 674

Either way, we need to come up with some solution as automation is going to put more and more people out of work.

So what, if we invent a robot that picks up litter, we should force human beings to do it because it's good for them?

Screw that. Some people will become total layabouts, but most will find something to occupy their time which is at best not harmful, and ideally productive. Like how numerous scientists and inventors before the 20th century tended to be people who had an independent income and could therefore spend all day screwing around with insects or what have you.

A basic income -- and increased access to adult education, from remedial to graduate programs, as well as technical training -- are good responses to the decreased need for humans to work. Don't make things worse by adding paternalism into the mix.

Comment Re:Excellent. (Score 1) 674

The trick is to let you collect the stipend and make money at a job as well. Up to a certain level anyway.

Well, sure it should be in addition to what you can make working, or otherwise, but it should go to everyone. The reason being is that this is on a per-capita basis, and there really aren't that many people wealthy enough to turn their nose up at the equivalent of about $10,500 annually, so not a lot is being spent superfluously by doing this. OTOH, if you cap it at an income level that is low enough that it makes fiscal sense to create a bureaucracy to verify who should and shouldn't get it (and remember, much of the savings to the government of a basic income is lowered transactional costs in administrating it) then you're excluding a large enough number of people who are likely politically active, donate to campaigns significantly, etc.

FDR saw the same logic behind why all worker pay is taxed to fund social security, even for people who don't really need to receive it: "We put those payroll contributions there so as to give the contributors a legal, moral, and political right to collect their pensions . . . . With those taxes in there, no damn politician can ever scrap my social security program." (That is, if you tax people and don't give them anything for it, they'll try to dismantle it, so don't do that)

Comment Re:Isn't the current mouse protection rule ... (Score 1) 207

If Steamboat Willie fell into public domain in the USA, there is no reason to think that would somehow grant other people the free privilege to use Mickey Mouse in their own works, because Mickey Mouse is trademarked.

In Fleischer Studios, Inc. v. A.V.E.L.A., Inc, the character of Betty Boop was at issue. Without getting too deep into the weeds, the gist of the dispute was that Fletcher claimed to hold copyrights and trademarks on the Betty Boop character, and AVELA was printing up Betty Boop art. There, the situation was similar to a public domain character, because Fleischer turned out not to hold the copyrights at all (and it isn't the court's problem to figure out who did and to drag them into this suit), but did have trademarks. The district court, on remand, said: "The words 'Betty Boop' used on goods bearing the image of the character Betty Boop self-evidently describe those goods, and are not referring to something else. ... In addition, there are no words other than âoeBetty Boopâ available to describe or name the character Betty Boop. As noted above, these proceedings have already established that Defendants may so use the character over Plaintiff's objection [because the Plaintiffs could not show that they held the pertinent copyrights]; Defendants must also, therefore, be able to identify this character by name."

End result: The Fleischer trademarks didn't prevent the free use of the trademarked character by a third party, where copyright was not a factor.

And given that the way that precedents work is that you look more for analogous situations, rather than those which are exactly alike, it requires no real effort whatsoever to see how this would apply in a future MICKEY MOUSE trademark case.

However, given the repeated long-windedness of your replies, you evidently have far more patience for discussing this matter than I.

Well, this is both my job -- I'm a copyright and trademark attorney -- and also my hobby. And while I admit to being long-winded, is that really the worst thing in an Internet argument?

Comment Re:Isn't the current mouse protection rule ... (Score 1) 207

Yes, but that's because the name Peter Pan, as it refers to the name of the main character in the story that is now in public domain, was not under any trademark in the first place (any trademark status it has since acquired, such as the name of a particular brand of peanut butter, or bus services, or the like, happened after the work fell into public domain).


First, names are not copyrightable; even during the time when the original Peter Pan plays by Barrie were copyrighted, the name could have been used by others without running afoul of the copyright.

Second, while patents require novelty, i.e. that something has never been done before, trademarks do not. And while copyrights require originality, i.e. that something originates from an author, rather than having been copied, trademarks do not. It is perfectly acceptable to use pre-existing material to make a mark, e.g. APPLE for computers, and it is even perfectly acceptable to copy someone else's mark provided that it is not then used in an infringing or diluting manner. A classic example is the PERSON'S mark used for clothing: In 1977, a Japanese clothing firm began using the PERSON'S mark in Japan, and in 1981 an American visited Japan, bought some samples of PERSON'S clothing, took them to America, and began manufacturing and selling his own line of clothing in America using the PERSON'S mark. In 1985, the Japanese firm began selling in the US, and the next year, the two firms realized they were now both in the same market with the same mark. They went to court, and ultimately the American won, since he had been the first to use the mark in the US; it didn't matter that he copied the mark from the Japanese, because trademarks, like copyrights, are not really international in nature, and use in Japan didn't count for anything in the US.

Third, your history is wrong. The Swift Company's divisions E.K. Pond and Derby started selling PETER PAN brand peanut butter in 1928, at a time when the plays were not only copyrighted, but Barrie himself was still alive and still held the rights. There's no indication that the name was used with permission, that there was a license agreement, or that there was any payment, or that Barrie even knew about it. Great Ormond Street Hospital, which wound up with the copyrights says that they never gave permission or got paid during the remainder of the time that the plays were still copyrighted in the US.

Had the character been called something that was simply descriptive of him, such as "Orphan Flying Boy"

You have a way too narrow view of what's descriptive in a trademark context. A mark is descriptive if it has an ordinary meaning and is used in conjunction with goods or services directly related to that meaning. Show anyone a picture of the Mickey Mouse character and ask them what that is, and they'll tell you that it's Mickey Mouse; the name of the character is a characteristic of it. If it weren't, you could say that no, the picture is of a character named Dan O'Neill, and people would believe you.

There is nothing magic or special about the US's copyright or trademark laws that would suggest that what would happen within the US should be even slightly different than what has already happened elsewhere when those jurisdictions have extremely similar laws.

No, there are two special things. First, many other countries regard international treaties such as the Berne Convention as being law which can be used by parties to a suit. The US does not; we regard most treaties to simply be obligations on our government to abide by them, but our actual law is what our own government enacts. Maybe they'll pass laws that comply with their treaty obligations, maybe they won't. We've been in violation of the TRIPS Agreement and the Berne Convention with regard to our homestyle exception (it concerns publicly playing the radio without owing royalties or needing permission) for well over a decade now and not only are we not about to fall in line, but we've deliberately gummed up the works so that we can keep on violating it and getting away with it. And it's totally legal in the US to rely on the homestyle exception. No one can sue you for using it in violation of treaty. This is because to Americans, copyright and trademark treaties are really only useful for 1) circumventing our own democratic institutions to impose greater protection for private interests, and 2) as a part of a trade policy meant to fuck over everyone else in the world, partly for those same private interests, and partly just because we can. There's no degree of amity or anything involved.

Second, we don't care about the rest of the world very much. We have our own statutes, and centuries of our own copyright and trademark caselaw. Only under extraordinary circumstances (or if we were interested in pre-American history) would we look at the law outside our borders for guidance on these subjects. Often our laws are somewhat different than those found elsewhere, such as how we're basically the only country in the world to have proper fair use. Whether or not Disney holds a MICKEY MOUSE trademark that effectively inhibits the free use of the public domain in Canada would not, for a single second, enter the mind of a judge who had to decide on how to treat the mark in the US when Steamboat Willie enters the public domain. Maybe this is a bad attitude for us to have, but it's par for the course around these parts.

Comment Re:Isn't the current mouse protection rule ... (Score 1) 207

You insist on alleging that somehow, by making the Steamboat Willie cartoon public domain, that this should cause trademark dilution.

No, not at all. I'm saying that it will cause the MICKEY MOUSE mark to suffer from genericide, at least with regard to certain types of goods.

OTOH, I agree that the mark would not be completely invalidated; there is ample precedent for fictional characters to be both in the public domain with regard to copyright, while also being protected trademarks. The key, however, is that the characters can only be trademarks with regard to goods that do not interfere with the public domain use of the characters in a copyright context, due to the superiority of copyright over trademark in the law. My go-to example is the character of Peter Pan, which is in the public domain in the US because the works in which he originated are in the public domain in the US. Anyone here can freely use the character in any manner of creative work; in fact a new Peter Pan movie was just released recently. However, at the same time, there are also PETER PAN trademarks for intercity bus services, and for peanut butter. That the character cannot freely be used to sell peanut butter does not prevent anyone from freely writing new books, performing the original J.M. Barrie play, making a film adaptation of the play, etc.

When Steamboat Willie enters the public domain, the same situation will occur for the Mickey Mouse character as he was in that work; he'll be freely usable, since there will no longer be any limitation on the creation of new derivative works based on Steamboat Willie. (That later changes to the character will still be protected until the works in which they originate also enter public domain is well established in, IIRC, Silverman v. CBS, which went through this already with the infamous Amos 'n Andy characters) Any trademarks that Disney has on MICKEY MOUSE which would interfere with the creation of copies of the existing work or new derivative works will cease to be valid. However, MICKEY MOUSE trademarks which are totally unrelated to creative works -- such as if Disney starts selling MICKEY MOUSE brand motor oil -- will remain perfectly valid.

Freedom to copy and distribute the work ... does not make the title character public domain, only the work itself.

There's actually no such thing as a copyright on a character. Only works can be copyrighted. If characters enjoy any copyright protection at all, it is due to being part of a copyrighted work, subject to whatever happens with that work.

This is not substantiated by any precedent where the name of something is not otherwise a general description of the trademarked item

In the US, trademarks come in five strengths: generic, descriptive, suggestive, arbitrary, and fanciful. Generic marks can never be protected, and suggestive, arbitrary, and fanciful marks usually are. Ironically, a stronger mark (fanciful are the strongest) may sometimes also cause a loss of protection, as I'll get to in a moment. Descriptive marks, come in a further two types: Merely descriptive marks, which are not protected, and descriptive marks with secondary meaning, which may be protected.

DIGITAL is a good example of a descriptive mark for digital computers; it's not generic (that would be COMPUTERS) but does merely describe the computer at hand. Anyone who makes or sells digital computers can describe their computers as being digital in nature; no one can have exclusive rights in this. However, a digital computer company that uses the DIGITAL mark in conjunction with their computers a lot -- like the much-loved Digital Equipment Corporation (also known as Digital, and as DEC), whose logo was the word "digital" may be able to show that they have built up a sufficient association with their mark and their goods in the minds of consumers that they are entitled to protection for the descriptive mark where secondary meaning is invoked.

That is, if you made a clone of a PDP-11, you could certainly advertise that your computer was digital, rather than analog, in nature. But you could not claim that your computer was a Digital computer, as in that it was made by DEC.

Similarly, when the public sees a trademark, particularly a fanciful one (fanciful marks are totally made up things, like Exxon, or Kodak), they may use the mark as the name for the good with which it is associated. This is classic genericide -- the transformation of a protected mark into a generic mark. It happens because it is fundamentally essential to trademark law that trademarks NOT identify goods themselves, but only identify that marked goods originate from a common source.

For instance, Otis used to make ELEVATOR-brand vertical conveyance devices. ELEVATOR was a protected mark, having been made up by the company, and was merely use to distinguish their vertical conveyance devices from other brands. But the public got it into their minds that a synonym for vertical conveyance device was 'elevator' regardless of who made it. And by thinking that, it was so -- the ELEVATOR mark became generic, free for all to use.

It's notably happened with ESCALATOR, TRAMPOLINE, and CELLOPHANE. Once those were all trademarks which were NOT general descriptions of the trademarked items, but customers began to treat them as being general descriptions, and the customer is always right.

The THERMOS mark is also interesting; in an attempt to split the baby, courts decided that for the fanciful THERMOS trademark, the word "thermos" had become generic (since people called vacuum bottles thermoses, rather than THERMOS being seen as a brand of vacuum bottle, which it had been) and so anyone who made or sold such bottles could call them thermoses. But they reserved "Thermos" with a capital T as a trademark for the exclusive use of the King-Seely Thermos Company.

So applying all this here, limiting ourselves to goods which are creative works, MICKEY MOUSE is a descriptive mark: It is simply the name of the character, Mickey Mouse. If it has any secondary meaning at all, associating it with the Walt Disney company, it is because the copyright on Steamboat Willie prevents third parties from making their own Mickey Mouse cartoons. But take away this copyright, and suddenly everyone is allowed to make Mickey Mouse cartoons. (And we know that this is so, due to Dastar) That the MICKEY MOUSE mark appears no longer by itself indicates the origin of the goods. The mark becomes merely descriptive at best, and cannot be protected.

"[A]ctually countered by the fact that despite the fact that the cartoon is public domain in many international jurisdictions, Disney has "retained" the trademark in those jurisdictions."

That's irrelevant. US copyright law and US trademark law control what is and isn't legal in the US. What foreign countries do has no particular bearing here. I cannot imagine why you keep bringing it up, as though it mattered even a little.

"[S]uch public domain status only dilutes the trademark when the trademark itself is too general to refer only to whatever the owner created"

Again, I've never said anything about dilution. Trademark dilution is a term of art, you're misusing it, and it's not relevant here. What this discussion is about is whether the mark is valid at all. If it would be invalidated in the way that I have described, dilution would not even occur.

In any case, the loss of the Steamboat Willie copyright would have exactly the effects that I've described. Disney knows it too, which is why they're such hardasses about the copyright term. If trademarks were sufficient protection, they would not expend so much effort to protect copyrights.

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