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Comment Re:Short-term benefit? (Score 1) 211

As someone else said, this is just Google being greedy - they could have come up with some sort of agreement with the authors that allowed them to do it via a subscription service, or such. Instead, they decided to give away someone else's work for free.

Actually, no, they couldn't. The transactional costs would be so great that neither Google, nor anyone else, would be willing to bother. Plus there would be authors who would refuse to participate, or who would balkanize the market with exclusive arrangements, much as we're seeing with music and video.

It's too knotty a problem to solve, other than by cutting right through.

Comment Re:Short-term benefit? (Score 1) 211

Perhaps being able to search google's scanned books should be a subscription service with some portion of that subscription payment going back to the authors of the books you looked at.

Then probably no one would use it very much. Plus of course, copyright doesn't include a right to information about a work, and that, fundamentally, is what Google Books is: it tells you that a given search term appears in a book. The snippet is just icing on the cake, very similar to the thumbnails in image searches, or the snippets on Google's web search results pages. They provide useful context and the ability to verify that the match is not a false match, but that's about it for most of them.

Or perhaps it should be nationalized into a public library system and we pay taxes into it that go back to the authors.

I have no problem with the Library of Congress or other public libraries offering similar services. I wouldn't pay authors though; it's not necessary and seems like a waste.

I'm just not sure a system that benefits you and google but not the authors is the best solution to the problem here.

The important thing is that it benefits him, and you, and me, and the general public. Copyright isn't meant to provide a benefit to authors, except where doing so is in the interests of the public.

Comment Re:Maybe now ebooks will be cheaper then paper? (Score 2) 84

Back on dead-tree, you owned the medium but licensed the content

No, you're wrong.

The way it works is that copies (i.e. tangible media in which a work can be fixed, such as paperbacks, hard drives, or flash memory) are ordinary personal property. Creative works (i.e. intangible stories or pictures, separate from the media that contain them) are not any kind of property at all. And in order to create an approximation of what it would be like if creative works were even capable of being property, we may grant copyrights pertaining to those works, which limit what people can do with them or copies containing them. However, copyrights are really quite limited themselves, and only prohibit a few (admittedly desirable) things that can be done with works or copies thereof. Mostly they prohibit people from fixing the works into more copies, from distributing copies containing the works, from preparing new works derived from preexisting works, and from publicly performing or displaying certain works.

The other important thing to understand is that a license is fundamentally just a promise not to sue someone. If Alice and Bob are neighbors, Alice doesn't need a license from Bob in order to go into her own home, eat her own food for dinner, and sleep in her own bed. However, Alice needs some form of permission from Bob (or an applicable exception) to go into Bob's home, eat Bob's food, or sleep in Bob's bed.

So the way this all works is, copyright does not apply to the mere ownership of a work or a copy, or to the mere use of a work or a copy. If you legitimately own a copy of a work (i.e. the paperback), the copyright does not prohibit you from owning it just because it has a work in it, and does not prohibit you from using that work, e.g. by reading it. Since the copyright holder can't stop you, he has no ability to grant you a license; he might as well grant you a license to breathe air.

This doesn't mean that you own the copyright. Nor does it mean that you own the work, since no one can own that. It just means that owning a copy automatically brought along the right to read that copy more as a consequence of personal property law and the right of free speech.

If you wanted to make a new copy, however, that would infringe on the copyright, if there is one. Ownership of a copy does not automatically confer the copyright.

The basis for claiming that e-books are licensed really has to do with a way in which they are unlike printed books. Basically, it's that in order to get one, you have to download it, which involves fixing it into some storage medium, and therefore making a new copy, which is something that copyright does prohibit, and therefore requires a license or exception in the law. OTOH, if you went to the bookstore and could buy a pre-written flash card with the book on it, and slot that into your reader, you wouldn't need a license, and it would work fine as a simple sale transaction.

The idea of end-user licensing really didn't start at all until the late 1970's with software, and it has been totally unnecessary there for over 30 years. But it's quite favorable for the developers and publishers, so they keep pushing that model and sadly it's spreading.

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.

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