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Comment: Regulation is ok, but the EU can't be a bad actor (Score 1) 247

by cpt kangarooski (#49476387) Attached to: EU To Hit Google With Antitrust Charges

Google does have an effective monopoly in search, and it's not a bad idea to have some degree of regulation in place to make sure that it doesn't harm consumers. (Though nonsense like a 'right to be forgotten' is going too far, and should be dropped)

The problem is that that very well may not be the EU's only motive here. At about the same time that the charges were announced, Gunther Oettinger, the EU's Digital Commissioner gave a speech where he said:

A great challenge is also Europe's position in the development of the next digital platforms that will gradually replace the current Internet and mobile platforms. We have so far missed many opportunities in this field and our online businesses are today dependent on a few non-EU players world-wide: this must not be the case again in the future. ... We need European industry 4.0 champions to win the global game in industry 4.0. ... Industry in Europe should take the lead and become a major contributor to the next generation of digital platforms that will replace today's Web search engines, operating systems and social networks.

Maintaining a level playing field and ensuring fair competition is one thing. Using the law to rig the market in order to engage in protectionism, however, is not acceptable. If the EU wants to pursue Google, they're going to need to do so in a way that is justifiably beyond reproach. Otherwise it's relatively easy for Google to restructure the way it does business internationally to avoid the EU from having any power over them, while still offering its services to persons in the EU, and to have many people cheer them on in the process.

Comment: Re:Hmmm (Score 1) 255

by cpt kangarooski (#49186121) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

Then you fall into the second category. Or you're just ignorant.

Well, I'm a copyright lawyer, so I doubt I'm "completely and totally ignorant of the law." Have you considered the possibility that your analysis is wrong?

Since we're talking about works that haven't been around long enough to have their copyrights expire, that's totally irrelevant.

Just thought I'd mention it, since you did make a rather broad statement suggesting that works cannot enter the public domain unless deliberately placed there by the copyright holder. While copyright holders can put works into the public domain, it's not true that that is the only way for works to enter the public domain.

"Um, no. That would not be the scenes a faire doctrine."

The scenes a faire doctrine, which I don't have to google for, thanks, permits people to copy without fear of infringement, stock elements from works, which are typical, if not indispensible, for works that have a particular setting, genre, theme, etc.

In this case, where you have a show about teenagers fighting monsters with martial arts and giant robots, it would not infringe if you had a five person team, each member of which had personalities as described above, and where the members of the team were color-coded. It's simply expected of the genre, and therefore fair game, even if you copied it from another copyrighted work.

Now if the specific thing you copied was a very detailed example, and you kept all the details, you might then have a problem. So it depends on how much Power Rangers embellished on this standard device, if they did, and if so, how much of that embellishment, if any, was used in this case.

If you disagree as to my explanation, please feel free to actually say what you think the scenes a faire doctrine is.

Comment: Re:Parody (Score 1) 255

by cpt kangarooski (#49186033) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

I didn't say Disney's Peter Pan. I was talking about JM Barrie's Peter Pan, which Disney's Peter Pan is based on.

A new version of Peter Pan, based on Barrie's, could still tarnish the character well enough (if done right, and if widely published) so as to harm Disney's Peter Pan merely by association. But it would be lawful to do this. Disney's copyright on their version of Peter Pan does not extend to stopping other people from making their own derivatives of Barrie's work, even if they're very unwholesome derivatives.

Comment: Re:Parody (Score 1) 255

by cpt kangarooski (#49177671) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

And time shifting doesn't use just one. Time shifting monetized (when done by a company) is almost always not fair use. Tivo is the only one that survived legal challenges.

Time shifting is typically something that the end-user does. Tivo, like Sony before it (The original time shifting lawsuit was against Sony for their Betamax), merely makes the machine. So long as there is at least a potential lawful use for the recording function of the machine, they can go on making them. The Supreme Court found that at least some time shifting would be fair, and that was enough.

Space shifting is another example, the original case was against Diamond for their Rio MP3 players, but Apple's iPod relied on it, as did basically everyone else.

But it meets more than just one criteria. It's non-commercial.

No, the purpose of the use for time shifting, while not precisely commercial, is to simply use the work in the way that an ordinary user, who did not time shift, would use it. It's not strongly against fair use, but it certainly doesn't weigh for it in the way that an educational or transformative use would. At best it is a wash.

Comment: Re:Parody (Score 2) 255

by cpt kangarooski (#49177639) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

I don't think the parody exemption for copyrighed works applies to things protected by trademark, which I wouldn't be surprised if the Power Rangers are.

It does.

(Though the question of parodying a mark directly is different from parodying a work which happens to contain a mark. Parodying Star Wars, which includes X-Wings, and the Millennium Falcon, and Lightsabers, and so on is different from parodying the Star Wars logo all by itself)

Also, remember that trademarks are inferior to, and cannot be used as a substitute for, copyrights. And that trademarks themselves are subject to various limitations to allow for certain types of unauthorized use.

Comment: Re:Parody (Score 2) 255

by cpt kangarooski (#49177611) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

Peter Pan is in the public domain in the US. You can absolutely have Peter Pan promoting drug use ('fairy dust' can be the street name; a side effect might be paranoid hallucinations of ticking crocodiles, etc.), and publish it widely enough to detract from Disney's ability to keep Peter Pan a wholesome character that they can make tons of money off.

Go nuts.

But because people can ignore that -- In fact, I'm confident that there are bad porn versions of Peter Pan floating around -- it doesn't really detract from the original, or from the Disney movies, unless you allow it to. It's up to you, the audience member.

Comment: Re:Parody (Score 2) 255

by cpt kangarooski (#49177593) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

a parody is allowed to use however much of the original work it wants to.

That's not quite right.

There's no special status for works which are parodies. Some parodies can be fair uses, but not all parodies are. And not all fair uses are parodies, though some fair uses are.

In any case, one factor in determining whether a use is fair or not is how much, and of that how substantial a part, of the original work is used. It's possible to have a fair use that uses all of a work, but also possible to have a use which uses very little of a work, but which is not fair.

While it all depends on the circumstances at hand, a good rule of thumb is to take only so much as you need. If you wanted to make a parody of Star Wars about how Luke waving the lightsaber around in Obi-Wan's house is dangerous, because Luke is a klutz, you could probably use some footage of that scene from the movie. You would have a harder time justifying using the entire movie, but only changing that one scene for the purposes of parody.

Comment: Re:Parody (Score 2) 255

by cpt kangarooski (#49177547) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

You're allowed to use copyrighted material to parody that specific material, but not to parody something else.

This is the oft-cited parody/satire dichotomy.

No seriously, some people really get into this stuff.

Anyway, it's not a bright line rule or anything, though some people like to pretend that it is. Satire is just as able to be a fair use as a parody can be, and a loss on the third fair use factor does not by itself prevent a use from being a fair use. There are no bright lines in fair use; it's all case-by-case analyses, utterly dependent on the specific facts at issue.

Comment: Re:Parody is protected (Score 1) 255

by cpt kangarooski (#49177525) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

Parody is protected; satire is not.

That's not really true. There is no hard and fast rule to this effect. Certainly fair use allows for both some parodies (but not all parodies) and some satires (but not all satires).

Courts generally are more likely to find fair use where the use was limited to what was needed, and generally find that satires don't need to use particular works so much as parodies do (because a parody is aimed at the work itself, whereas satires merely employ a work to aim at a different target altogether). But there's nothing in the law that prevents a satire from being a fair use depending on the overall circumstances. It's just a little harder to show.

Comment: Re:Characters can be trademarked (Score 1) 255

by cpt kangarooski (#49177497) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

No, he was right. It's not the character that's copyrighted per se -- though it can be a useful shorthand to talk as if it is -- it's the works containing the character that are copyrighted.

Using the character is no different from using any other part of the work that the character appears in.

Also trademarks are inferior to, and no substitute for, copyrights. When the copyright for Steamboat Willy ends, a significant amount of the trademark protection for Mickey Mouse will end with it. This is because the use of a trademark indicates that all such marked goods originate ultimately from a common source. If anyone is allowed to make new works which are derivative of public domain Steamboat Willy, as copyright permits, the MICKEY MOUSE trademark for such works cannot serve to indicate a single source. Therefore the trademark suffers genericide.

The mark can still survive in other contexts -- Peter Pan is both a public domain character in the US and also a trademarked brand of peanut butter and intercity bus services -- but the copyright does some serious damage to it.

Look into the Shredded Wheat case for a similar situation involving the expiration of a patent dragging down a trademark, and the Dastar case for trademarks not being permitted to serve as a substitute for copyrights.

Comment: Re:Bennet is wrong (as usual) (Score 1) 255

by cpt kangarooski (#49177461) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

If there is no original footage, there can be no copyright violation on the original works.
Fan-fiction, whether the author allows it or not, is not part of the original author's copyright. The author has legally no say in what other people can and cannot write (and any legal decision that says they do is unconstitutional).

It's a derivative work. Copyright includes an exclusive right to prepare derivative works. Good luck with your argument about it being unconstitutional.

Comment: Re:Just what we need.... (Score 1) 255

by cpt kangarooski (#49177399) Attached to: Gritty 'Power Rangers' Short Is Not Fair Use

I don't want to see a rageful, murderous Spock.

Well, while I would say it's a classic, I would advise you not to watch Star Trek episode 30, "Amok Time," which features a rageful, murderous Spock.

I don't want to see a Superman film that makes me want to kill myself.

Also skip Superman III and Superman IV.

The bomb will never go off. I speak as an expert in explosives. -- Admiral William Leahy, U.S. Atomic Bomb Project

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