Posts Tagged ‘infringement’

better way to handle infingements?

July 14, 2009

It’s all too common for IP lawyers to go to the legal nastygram first, rather than recognizing that perhaps the “infringement” is an opportunity. Take, for example, this (amusing) story about how when Prada, the famous design company, first got started, Miuccia Prada got angry about someone making knockoff products. Except… rather than sue Patrizio Bertelli, who was making the knockoffs, she was convinced by him to make use of his manufacturing capabilities, and the two teamed up… even to the point of eventually getting married to each other. Obviously, that’s a pretty extreme example, but the key point is worth repeating: sometimes the better solution is not to freak out and sue over infringement, but to see if that infringement can be used to your advantage.

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infringement is not theft! enough already!

March 3, 2009

Tell me how you steal an intangible concept.

Theft is the taking and carrying away of the personal property of another which has value.

Let’s take a download: if someone gets a download without permission, they haven’t stolen your music because you still have it. And they haven’t stolen any money to which you were entitled because you cannot prove that entitlement with any certainty. You never had the money in your possession. “Stealing” is an emotional word to make the act look evil. Copyright infringement is copyright infringement, not theft. It is actionable but it is not criminal unless the law says so (and that’s only defined as done for pecuniary gain. Here’s how the code described when infringement becomes criminal:

§ 506. Criminal offenses4
(a) Criminal Infringement. —

(1) In general. — Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed —

(A) for purposes of commercial advantage or private financial gain;

(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

(2) Evidence. — For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.

(3) Definition. — In this subsection, the term “work being prepared for commercial distribution” means —

(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution —

(i) the copyright owner has a reasonable expectation of commercial distribution; and

(ii) the copies or phonorecords of the work have not been commercially distributed; or

(B) a motion picture, if, at the time of unauthorized distribution, the motion picture —

(i) has been made available for viewing in a motion picture exhibition facility; and

(ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility.

A teen-ager downloading a song for himself without permission (or for his friends) is not engaging in a criminal act as defined by the law. Period, end of story.

Creators need to wrap themselves around the law as it is, not as they imagine it.

All the bullshit to the contrary,  is just simple minded nonsense.

Louis B. Mayer once said something like: I love the movies,
even when you sell it, you still own it.

stop copyright infringement, destroy justice system and privacy

July 20, 2008

I Don’t Believe in Imaginary Property brings us an analysis of several organizations’ goals for the Anti-Counterfeiting Trade Agreement, which we’ve discussedpreviously. In particular, he points out the anti-privacy views of the Business Software Alliance: “While the ACTA itself is not public, the US Trade Representative has at least released the ACTA comments. While many of them are to be expected, such as the RIAA & co. wanting copyright filters, one item on the BSA’s wish list really stands out: ‘In a number of European countries one of the biggest impediments to efforts by rights holder to enforce their IP rights on the Internet is the overbroad interpretation of privacy laws by some European authorities.’ They want ACTA to ‘fix’ that by neutering the privacy laws. Given the BSA’s other questionable activities, it couldn’t hurt to tell their member companies what you think of their participation. After all, organizations like the BSA exist in part to shield their members from bad PR.” Full documents of comments from the various organizations are available at Public Knowledge.