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.

Except you cannot assign somebody else's rights. Period.

Where this analogy breaks down is that ideas are not copyrightable. A work must be fixed in a tangible medium of expression. And then it's just the expression that gets a copyright. So even if the business plan were written down, the writing is the only thing copyrighted - not the idea.

"free concert" = profiTTT from tickets

Actually, one of the reasons there are so many reversals for fair use is that fair use is a mixed matter of fact and law, the lower court's holding is open to full review. Compared to the other standards of review, along with the subjective nature of fair use, this will result in more reversals.

You entirely sidestepped my question. Should copyright be used to hold up authors of works people do not determine to be valuable?

As far as Creative Commons licenses go, do you understand that CC has no power without copyright? That the license only works because copyright provides exclusive rights to authors, and it is these rights that the CC licenses out to others? So "moving in that direction" makes no sense.

Should copyright be used to hold people up who cannot make it with the work they produce, despite the value to others of that work being low or none, or at least less than it costs to produce it? Quite frankly, I've never seriously considered this as a possible justification because it's not an efficient use of resources. So, of course, my question for you is why should we encourage that amount of inefficient use of resources? Even current copyright is not perfectly efficient (after all, Disney can probably better use your screenplay than you when they steal it from you), but it's balanced against desert (at least on my view). However, I don't think the Lockean fruits of labor argument works for you. Your position seems more about people deserving to have more fruit, as opposed to deserving whatever fruit people can make.

You act like settlements aren't rational. But they are. Settlements aren't compulsory, after all. And where there's money for settlement, there's money for legal representation.

It increases it from 0 no matter what, not just if you're lucky. You have no recourse for somebody taking your screenplay but for recognizing intellectual property.

What are you trying to say here? The only think I can figure out is so far from reasonable that I won't address it because it's probably just me not understanding what you're trying to convey. Clarify?

There is zero chance of that happening. Thinking so is simply alarmist.

But copyright reduces the risks creators undertake when they author works because, as the post you quoted points out, people could otherwise jump in and take what somebody else created. And then they've expended a lot, received little, and have less incentive to keep creating. His hypo is exactly how copyright law helps them.