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Comment Re:spin (Score 1) 211

Which is the point where you've broken copyright law. Photocopying books is, well, copying them.

Unless you're engaged in a fair use (or fall under certain other exceptions), in which case the copying is perfectly legal under copyright law. Which turns out to have been the case here.

And thanks to Google clearing the trail, it'll be easier for others to do the same thing, if they're inclined.

Comment Re:spin (Score 1) 211

They don't have an exclusive right to scan in books. First, because such a right could only be granted by either copyright holders, as an exclusive license (which would also necessarily mean that scanning the licensed book was not infringing) which wouldn't matter to rivals because the rivals can ignore such a license and rely on fair use per the lower court's decision. Second, because the only other way to have an exclusive would be if there were literally only one copy in existence and the library that owned the copy refused to grant access to anyone else, and that is frankly, pretty unlikely.

The reason that they may have an effective exclusive is simply that it's an expensive pain in the ass to scan all of this stuff in, and there's little money in it, so who else would want to bother. But the disinclination of third parties to compete with Google because it's hard, likely minimally profitable work, is hardly Google's fault.

The point is, they took on a project that violated copyright on a massive scale. They want to claim that it's fair use

No they didn't. Fair use is by definition not a violation of copyright. And so far this has been determined to be fair use, and with the Supreme Court refusing to take up the case, there should be nothing else to say about it.

I think it's only fair the LoC get a full copy of their book index.

That would be nice, but they're under no obligation to give a copy to the Library of Congress if they don't want to.

Frankly, I think its good that such a thing exist in society. But it's not good that a private for-profit company can take it on themselves to do that for their own gain.

Why not? Certainly the government should be doing this sort of thing; as an attorney it always bothers me that there's no public alternative to Lexis and Westlaw. But that the government could do it and should do it doesn't preclude private entities from doing it too, as a general rule.

For instance, the government builds most roads. But nothing stops a private company from building a private, for-profit highway, so long as they can get the land without government assistance and afford to build a safe roadway on it which complies with various regulations. It's just such a hassle that it's rare.

Honestly, it's strange that laws suddenly stopped applying because it was on a computer.

Copyright law applies. Google simply hasn't acted illegally is all. Google books is no different than if someone made analog xeroxes of lots of books, manually compiled a master index of everything in them, and took requests by phone to tell people what books matched various search terms (possibly with a specific sentence or passage read aloud over the phone to lend context to the result).

Computers make this practical, not legal.

Comment Re:spin (Score 1) 211

Suppose an author hated a book they had written earlier. It would be impossible for them to buy and destroy every copy.

Screw 'em.

Competitors who would have to reproduce the electronic archiving, as opposed to having the LoC owning the electronic copies and people competing on search algorithms.

Oh, that's just stupid. I doubt Google has an exclusive that would prevent people from surmounting the same natural barrier to entry. And if the government did scan everything in and make its scans available to third party search engines, that certainly wouldn't prohibit anyone else from doing their own scans either. It would just be a government subsidy of book searching. Perhaps that would be good, but it's not a valid criticism of Google Books.

Comment Re:Dissolve the Berne Convention (Score 1) 211

Creative works are copyrighted by default. The author/artist does not need to take any action for their work to be protected.

Yes, and that's a colossally stupid idea. Copyrights should only be available where authors take action to get them, and only persist where authors regularly take action to maintain them.

This is probably what the earlier poster was complaining about, and I suspect you took him too literally.

Comment Re:Dissolve the Berne Convention (Score 1) 211

something that you didn't create, thus implying it is copyrighted until you can show otherwise

That's a big part of the problem which the earlier poster was alluding to. Works should never be copyrighted unless the copyright is specifically requested by the author, through a registration process that includes placing copyright notices and registration numbers on the work to facilitate checking their copyright status.

This is no great burden for authors, who will either comply if they want copyrights, or ignore it and let their works enter the public domain immediately (indicating that they didn't care about the copyright to begin with). On the other hand, it would be greatly beneficial to the public, who would no longer have to assume that everything is copyrighted until they can prove otherwise.

A requirement to maintain up-to-date information in the registry, lest the copyright be lost, would also help with the orphan works problem you mentioned.

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)

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