Chosen Few Posted March 5, 2012 Share Posted March 5, 2012 Masami Kuramoto wrote: That's right, and the law just happens to stipulate a lot of limitations and exceptions to copyright: Let's examine these, one at a time. Your understanding of fair use seems to be pretty warped. Masami Kuramoto wrote: the Betamax case The infamous "Betamax Case", otherwise known as Cony Corp. of America vs. Universal City Studios, established two things: 1. Recording device manufacturers cannot be held liable for what the users of such devices choose to record. 2. Recording a television show strictly for the purpose of watching it another time does not constitute copyright infringement. The case had nothing to do with any public entitlement to privately owned property, so it's not at all relevant to your argument. Masami Kuramoto wrote: the Audio Home Recording Act I'm somewhat puzzled why you'd choose to mention this particular piece of legislation as part of your argument, since it actually served to tighten copyright regulations, far more than to loosen them. It began the unfortunate practice of government-imposed royalties on the sale of recording devices and media. It also introduced the first attempt at digital rights management, and the first law against circumvention of same. The only real boon to individuals was that it legalized the copying of recordings for individual private use, such as making a cassette copy of a record, for use in your car. This is of course an important freedom, in principle. However, the wording of even this provision of the law is aimed far more at protecting device manufacturers than individual users. As with the previous example, this one isn't about any entitlement to other people's property. It's got nothing to do with taking other someone else's work without their permission, and redistributing it to the public. So again, it's not directly relevant to anything we've been discussing. Masami Kuramoto wrote: the first-sale doctrine Now you're really jumping the shark. The First-sale Doctrine really has nothing to do with anything. It simply acknowledged in written legislation what had already been common practice forever, and had been formally recognized by the courts as absolutely legal, nearly a century before the Doctrine itself was drafted. It says that if you no longer want a copy you've purchased, you're free to give that particular copy away or resell it. It's a common sense provision, which was inserted into the Copyright Act of 1976, primarily to make certain that other provisions don't get over-zealously misinterpreted as preventative of the fundamental right to dispense with that which you're no loner using. It's absolutely not about making new copies of anything, and once again, it's not about any public entitlement to private property. Giving away a book you've already read, or selling your old Nintendo games on eBay is hardly the same thing as producing new copies of someone else's work, and redistributing them without the owner's permission. So once again, irrelevant. Masami Kuramoto wrote: and fair use This is the single most misunderstood portion of copyright law. So many people think they know what fair use means, but actually have no clue. Thieves use it all the time to try to justify their actions. It's hardly surprising that you brought it up in this context. I figured you would, sooner or later. In actuality, the Fair Use Doctrine is about free speech. It effectively acknowledges that at any given moment one person's right to free speech may be at odds another persons right to copyright protections, and it strikes an appropriate balance between the two. It allows for very limited, partial reproduction of copyrighted works, for the purposes of commentary, criticism, research, news reporting, education, or parody. The main principle is that if you need to cite a work in order to talk about something, then you're free to so so. Your right to free speech in such a circumstance trumps copyright, to a limited degree. For example, if you're writing a book review, you're allowed to quote passages from the book, in order to make your review make sense. But again, you can only do this to a very limited degree. You must keep the total amount that you quote within reason, and you cannot copy any part that would destroy the potential commercial value of the work if published out of context. In other words, you don't get to copy whole chapters or give away the last page of a mystery novel. You can only copy what is vital to get your point across, no more. Once again, this not about any entitlement of the public to works owned by individuals. It's 100% about free speech. Under no circumstance does fair use cover the ripping of content out of video games, uploading that content to SL, and redistributing it to the public. Masami Kuramoto wrote: Whether or not a "ripped" mesh in Second Life constitutes fair use depends on several things: No, it really doesn't. But let's take your "several things", one by one. Masami Kuramoto wrote: Did the infringer remodel the object or upload a verbatim copy? That's is absolutely irrelevant. A hand-made copy is just as much a copy as an automated reproduction. An inaccurate copy is just as much a copy an accurate one. A badly made copy is just as much a copy as a well made copy. A copy is a copy is a copy. Masami Kuramoto wrote: Does he distribute it or keep it for personal use? If it's been uploaded to a third party service like SL, it cannot be considered just private personal use, even if it goes no further than your inventory. You do not own any of the data on LL's servers. So, once you've uploaded it, you've distributed it. Masami Kuramoto wrote: Does he make a significant profit from redistribution? That's the wrong question. Where profit is concerned, it's not about how much the thief makes, but what impact his actions have on the author's potential market for the work. Even if the thief makes nothing, he may well have caused significant damage by flooding the market with unauthorized copies, thus making it impossible for the author to sell the official ones. I would have thought that with all your purported concern for the entitlement of authors to profit, you'd have understood at least this much. Masami Kuramoto wrote: Is the object substantial or just a small piece of a much larger work (e.g. a character from a movie)? You're right that the amount of the work copied does have an impact on whether usage is considered fair. However, you're way, way, WAY off the mark in your interpretation of what that means. It's not about a character from a movie vs. the whole movie. It's about showing a clip from a movie as part of a news report or something, vs. showing the whole movie. Characters are often trademarked. Trademark law, just like patent law, is an entirely different subject from copyright law. We can get into that, too, if you really want to. Characters may be copyrighted as well, though, of course. For example, since since the entire text of a book is copyrighted, all passages that describe any particular character in the book are included in that copyright. And since copyright includes the exclusive right to prepare derivative works, the author maintains exclusivity on the reuse of any original characters so described. The same principle applies to movie characters, video game characters, etc. If they're original, they're owned by the author, and no one else can use them. So where does fair use fit into that? Well, let's revisit the book review example, but this time let's change it to a movie review, since you specifically mentioned movie characters. Say I want to write a review of The Dark Knight, and focus heavily on the look and feel of the characters. In order to fully explain what I'm talking about, it may be necessary to include a few pictures of Batman, the Joker, Harvey Dent, etc. The use of those pictures would be fair, in that context, as would my written descriptions. What I don't get to do is take Batman character models, whether I've made them myself or ripped them our of Arkham City or whatever, upload them to SL, and distribute them to the public. There's absolutely no way to define that as fair use. Masami Kuramoto wrote: All these questions will have to be answered in court. Fact is, there have been valid cases of fair use involving verbatim copies and even commercial use. All true. But nothing we've discussed in this thread (barring the examples I just cited right here) even remotely borders on fair use in any way. The fact that you think it might is just one more example, in a now very long list of examples, of just how much you don't know about intellectual property law. You've imagined quite a bit, clearly. But you actually know very little. Masami Kuramoto wrote: So excuse me if I give people the benefit of the doubt rather than labeling them "thieves" just because they uploaded a mesh that looks familiar. No one said anything about labeling someone a thief just because their work looks like it might be infringing. What we've been advocating since this thread began is the importance of simply alerting the author, nothing more. If the alleged thief actually did have permission, then there's no problem. The author can simply dismiss the E-mail. If, however, the thief did in fact take the work without permission, the author has a right to know about it. He or she can then pursue it, or not pursue it, however he or she sees fit. Either way, it's no longer any of our business at that point. That said, if someone does upload a model without the rightful author's permission, there's no doubt for them to benefit from. Fair use is not an applicable defense. The person will have committed copyright infringement, and quite possibly trademark infringement as well. Besides, you weren't talking about "benefit of the doubt" before. You explicitly said, several times, that if an author chooses not to put his or her work in SL, then you believe others should just take the work anyway, and put it here themselves. Even with your FUBAR'ed understanding of what fair use means, you had to have known that is thievery. Masami Kuramoto wrote: A while ago in some group chat (I don't remember if it was "Mesh Dev" or "Blender Users"), there was someone complaining about the impending deluge of freebie meshes in Second Life. The person was in particular concerned about free models of real world cars and helicopters, because those would jeopardize his own car and helicopter business in SL. So I asked him why he felt entitled to make money with cars and helicopters that represent real world designs created by someone else. I remember there was some discussion about copyrightability of real world objects. It doesn't sound like it was a particularly enlightening discussion for you, given how little you seem to know about the subject. In any case, you can't copyright a car, or a helicopter. You can trademark the make and model names, and the associated logos, and you can possibly declare trade dress with respect to certain aspects. But you cannot copyright a utilitarian item. As for the question you say you asked, I'm puzzled why you felt the need to ask it. Clearly, you thnk it's OK for people to take fictional items, which ARE copyrighted, and redistribute them any way they want. Why do you draw a moral line at depictions of real items, which are NOT copyrighted? Doesn't that strike you as just a wee bit bass ackwards? Masami Kuramoto wrote: Why am I bringing this up? Just recently, in a strange coincidence, videogame producer Electronic Arts was sued by Textron, the parent company of Bell Helicopter, for recreating their aircraft designs in the game "Battlefield 3". You can read more about it here. Uh, did you bother to read the article? Textron didn't sue EA. EA is suing Textron, pre-emptively. This will be an interesting case to watch. Personally, I think EA is in the wrong here, but nonetheless, they just may be able to pull it off. It's a trademark case, after all, rather than a copyright case. Trademarks exist to protect the buying public, not the trademark holder. They serve to prevent confusion in the marketplace. The idea is if you buy Chevy, you have the right to be certain it's actually a Chevy, and not a Ford or something. The presence of Chevy's trademark presumably affords you that certainty. EA could potentially make a compelling case that no one in their right mind could ever mistake their product for an actual Textron product. Depending on the full circumstances, that might do it. Masami Kuramoto wrote: As previously shown by the example of Apple vs. Samsung, trademark law can now be applied to pretty much anything, including generic things such as rounded corners on a tablet computer. Sigh. Not only do you apparently not read your own linked articles, you also don't even read my explanations of why you should. That's not a trademark case. It's a patent case. Totally different thing, not comparable at all. Masami Kuramoto wrote: So no matter what we create for SL, there is always a risk of IP violation. Create original works, and there's no risk. If you're going to copy someone else's work, get permission first, and then there's no risk in that either. What part of that is hard to understand? Masami Kuramoto wrote: Contrary to what Chosen Few believes, architecture, furniture and clothing have been subject to IP disputes. Not in the way you were implying. Wanna keep playing the link-o-matic game? You go ahead and link a bunch of cases that you won't actually have read, and then I'll read them, and point out why they're not relevant to what we've been talking about. Go ahead. I dare you to prove me wrong. Masami Kuramoto wrote: These things directly affect your and my business as well. All it takes is someone looking hard enough and reporting what they find. If your business doesn't involve stealing other people's property, then there's nothing to report. Masami Kuramoto wrote: History shows that if there is money to be made from a lawsuit, someone will sue, even if the claims are ridiculous. There's no money to made in losing a lawsuit. If someone makes a ridiculous claim, show the court why it's ridiculous, and get the case thrown out. Then counter-sue for libel, for lost business, for mental anguish, and for anything else you and your lawyer can think of that might fit the bill. This ignorance-based fear of the law is pretty childish. Embrace the law, like a grownup. It's there for your protection. Use it as such. Masami Kuramoto wrote: Copyright in architecture in the United States Courts Clarify Copyright and Trademark Rights in Furniture Cases Great, we have our first contenders in the link-o-matic game. I hate to burst your bubble, Masami, but nothing in either of those articles contradicts anything I've said. Quite the opposite, they're in complete alignment with everything I've been saying. For example, did I not mention several times that any original artistic elements that can potentially exist separately from the purely utilitarian elements are individually copyrightable? Both articles state this in no uncertain terms. Again, I have to ask, did you read the articles before linked them? It sure doesn't seem like you did. Allow me to quote the key passages from the furniture article. I'll get to the architecture one in a minute. Let's start with this passage, which deals with the separability of artistic and utilitarian elements: Having found sufficient originality, the court then focused on the conceptual separability of the aesthetic design from the utilitarian furniture pieces. This concept, which "often sounds more like metaphysics than law," arises from Section 101 of the Copyright Act, which states that "the design of a useful article . . . shall be considered . . . a sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." The conceptual separability test is conjunctive, requiring the court to find both that the design elements are capable of separate identification and that they are capable of existing independently of the utilitarian aspects of the furniture. Yup, exactly as I said, in order to be copyrightable, the artistic elements must be separable from the utilitarian elements. Now let's take a look at this next passage, dealing with the fact that utilitarian articles are not copyrightable, in and of themselves: Since the industrial design of a piece of furniture is not copyrightable, regardless of how aesthetically pleasing it may be, Universal sought to protect ornamentation applied to an industrial design that added nothing to its function. Once again, exactly as I said, the utilitarian design is not copyrightable under any circumstances. Did you read any of that at all? Masami Kuramoto wrote: Your increasingly condescending tone barely hides the fact that you seem to know very little about the topic at hand. I don't mean to come off as rude, but you hit one of my hot buttons. I have little tolerance for those who say it's OK to steal other people's work, and that's pretty much what you did, in your first post. I found your attitude to be nauseating, and so I told you as much. I stand by everything I've said, but I will apologize for any hurt feelings, if there were any. This is an important topic, which I take VERY seriously. As for the subject of how much or how little I know, all I can say is the facts are on my side. Evey fact I've presented is verifiable and true. You, on the other hand have linked articles that you don't appear to have read, you've invented points of law that don't actually exist, you've grossly misinterpreted points that do exist. The list goes on and on. You really haven't presented anything defensible. Yet you try to claim I'm the one who doesn't know the subject. Silly stuff. Masami Kuramoto wrote: By the way, housing and furniture in virtual worlds serve no utility. If you rebuild such a real-world object as a mesh, you do so for no purpose other than to copy its design. Of course. I guess you missed the parts throughout this discussion where I said that. Shall I repeat it again? Here goes. I hope you read it this time. All items in SL are artworks, and as such, are subject to copyright law. Utilitarian items in the real world are not copyrightable, which is why we can legally produce artworks that look like them. However, if a utilitarian item has artistic components embedded into it, and if those components can exist separately from the utilitarian elements, then those parts ARE copyrightable, and you must leave them out of your version. Masami Kuramoto wrote: It's naive to believe that an architect's copyright to the original blueprint weighs less than your right to its faithful reproduction. I have no idea how you got that from anything I said. An architect's blueprint is absolutely a copyrighted item, and no one may copy it without the architect's permission. The blueprint is not the building, however. What you CAN do is make an artistic representation of the building, once it's been constructed in a public space. If you don't believe me on that, go ahead and read the very article you linked. Once again, shall I quote the relevant passages for you? I guess I'm gonna have to. Here's what it says about copyrighting a blueprint: Copyright protection can extend to general drawings and blueprints, preliminary plans, sections, elevations, floor plans, construction plans, rough models, models of internal support, models of external appearance, photomontages of the building against backdrops, computer-generated images of a design, and constructed buildings.. And here's what it says about the right to make an artistic representation, after the building has been constructed in a public space: when a building is ordinarily visible from a public place, its protection as an "architectural work" does not include the right to prevent the making, distributing, or public display of pictures, photographs, or other pictorial representations of the work. Thus, the architect will not be able to prevent people from taking photographs or otherwise producing pictorial representations of the building. That last passage is a bit incomplete, in that It only references pictorial representations, rather than artistic representations in general. Sculptures and digital models are equally allowed. Still wanna tell me I don't know about the subject, Masami? Everything I've said is verifiable fact. The majority of what you've said has been either in contradiction of the facts, or has just given the potentially misleading headline-only version of them. You really want to keep stubbornly playing this game, or do you think it might be time to actually start reading and learning? 2 Link to comment Share on other sites More sharing options...
Chosen Few Posted March 5, 2012 Share Posted March 5, 2012 Kwakkelde Kwak wrote: Interesting subject and a very complicated one aswell. I'm the last person who'd like to lecture you on copyrights (on architecture or anything else), but I do think you forgot a vital part. Since, as you say, the building becomes part of the public environment once constructed, we can say the front facade or visible part of that building is no longer protected from graphical reproduction, which (probably?) includes 3d models. The interior of that building however, a critical part of architecture, is not always part of the public space and can therefor not always be reproduced as far as I know. The parts of the building not visible from the street are somewhere in the middle I'd like to think. Excellent point, Kwak. (You always seem to have excellent points. ) You're absolutely right, of course. The interior is off limits, if it's not open to ordinary public view. Kwakkelde Kwak wrote: There's also the fact that the copyright law you describe is the US one. My "wiki knowledge" tells me in other countries the law is quite different and does include entire buildings. Any idea how this affects "building" or "representing" in a program like SL which falls under US law? Good question. Under Berne, the laws of the country in which the work is published are the ones that ultimately apply. With that in mind, here's my best guess at how the legalities would work. There are three possible scenarios: If the country in which a user is located has more restrictive laws, which prevent the replication of a building altogether, then the user would naturally be barred from doing that, locally on his or her end. Even though the user technically could publish such a work in SL, it's basically a moot point. One cannot publish what one never got to create in the first place. If the country has less restrictive laws, which allow full replication of both the exterior and the interior, then I would assume the model would have to be neutered to some degree before it would be allowable. Non-publicly viewable components would likely need to be removed. If the laws of both countries are identical, then it's of course a non-issue. All the same things are allowed and not allowed in both. Again, all that is just an educated guess. It would be interesting to hear the opinion of someone better schooled in international law that I am, if anybody who fits that description would care to jump in. Kwakkelde Kwak wrote: Here in the Netherlands, it is allowed to make a pictures of a building. It is allowed to distribute or even sell these pictures. However it is absolutely not allowed if the building is the main picture. You can't make posters, you can't use it for the cover of a book. So projecting this on 3d modelling, you'd have to build a whole lot more than just the building in order to make it legal I'd say. A nice example I found is from a lecture I stumbled across. It's about a bridge built by a Dutch architect (yes that can be considered architecture aswell in some cases!). The city cannot sell t-shirts with just the bridge on it, however they are allowed to use it when the t-shirt has the entire skyline of the city represented. Very interesting. The same basic rules apply in the US to copyrighted/trademarked items that are on public display (aside from buildings). If you want to make a poster of your friends standing next to a sculpture, you can do that. You can't make the sculpture itself the subject, though. Your friends must be the subject, and the sculpture must just be incidental scenery. Bridges, generally speaking, are considered utilitarian, and are not copyrightable. Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 5, 2012 Share Posted March 5, 2012 Thanks for the reply. Chosen Few wrote: Bridges, generally speaking, are considered utilitarian, and are not copyrightable. Yes I read that, hence the comment and exclamation mark I added, maybe it was the bridge itself which is quite the architectural piece, maybe it is a legal difference between the US and the Netherlands. The article/lecture was by an attorney, so I'm sure it was a valid example. BTW..did you sleep at all last night? Link to comment Share on other sites More sharing options...
Medhue Simoni Posted March 5, 2012 Share Posted March 5, 2012 Of course, I didn't read all the comments, but I'll add in my 2 cents. First, let's get somethings straight here. A COPY, is a COPY, not a replication. Whether some1 is entitled to replicate any1 elses works or ideas is a whole other matter than copyrights. The other thing that should be made clear is that man makes laws, and man is falible. Then, there is a whole other matter of interpretting and the intent of those laws. Just because a MAN rights a LAW does not make it ethical, hence why it is good that we don't all have the same LAWs. Ok, now onto my opinions, lol. If some1 wants to spend there precious time rigging and sell avatars from game companies, and the creators of those avatars don't mind, why should you? Let's just extent the situation to it's likely path. Person rips a character, rigs it, and sells it on the MP. Said game company does not care. Others realize that they can do the same. Now, we have 10 people all selling the same character. The original ripper no longer makes enough to cover his effort, hence that original person does not waste anymore of their precious time, in life, ripping content. Maybe, they even realize that the only way to sustain an actual income is by creating their own characters that no1 else is selling. Now, of course, I'm not incensitive to creators having their creations COPIED and then the ripper redistributing them. Whether it is illegal or not, it is unethical to redistribute an exact copy and insulting to the creator. On the other hand tho, a replication is quite ethical and flattering, irreguardless of the law. The bottom line is whether an environment is encouraging enough for creators to spend their precious time creating for it. If enough creators feel that it is not worth their time to create something new, then you will quickly see those creators make conscious decisions to focus their time in more productive ways. This is exactly why copying is considered unethical. In the case of Pam, while I cringe at her situation, I also see the technical difficulties from LL's side. I have no idea what kind of workload LL has in this department, so I won't comment there any further. What I will do is bring up the point of censorship. LL has rule against defaming others, but I personally think this is half the problem. Here in the States, we have the 1st amendment, which is also handcuffed by defaming. This is total BS. It is totally a situation where people with large amounts of cash can bride officials to keep others from pointing out their flaws. I do not fear being defamed. If any1 wants to try, go right ahead. Seriously, you'll likely look very bad in the process. See, people who act ethically, without fear, never have to do much to defend themselves. Others will rush to their aid also. But, when you keep people from pointing out the crooks, that is a serious problem, especially when the system controllers are limited in how they can control the crooks. I say, give every1 true freedom of speech. Most people will always come to the defense of the wronged, and condem those that exploit. I'm sure most of us know the power of word of mouth, and I think it is a much better social control than any LAW. Link to comment Share on other sites More sharing options...
Jenni Darkwatch Posted March 5, 2012 Share Posted March 5, 2012 I think one important point has been missed entirely: It's nearly impossible for consumers to know whether content is ripped or not (obvious IP like "Star Trek" and "Star Wars" aside). Btw, from a creators side of things, and not SL related: If I create something, I am under no obligation to provide access to it to anyone else. If someone makes a movie for example and decides not to publish it in the USA, people in the USA are SOL - it doesn't give anyone the right to produce unauthorized copies out of some idiotic sense of entitlement. The same holds true for inventions. Regardless of the reason, if the inventor decides to block the use of his/her invention, no one has any right whatsoever to circumvent that. There's actually quite a few real-world examples of such cases. In relation to SL: If anyone would reproduce my RL work in SL, you bet I'll go after their RL ass to the maximum extent permitted by law. Link to comment Share on other sites More sharing options...
Masami Kuramoto Posted March 5, 2012 Share Posted March 5, 2012 Chosen Few wrote: Masami Kuramoto wrote: Did the infringer remodel the object or upload a verbatim copy? That's is absolutely irrelevant. A hand-made copy is just as much a copy as an automated reproduction. An inaccurate copy is just as much a copy an accurate one. A badly made copy is just as much a copy as a well made copy. A copy is a copy is a copy. No. A verbatim copy is essentially a copy of a file (e.g. from a game DVD). A remodeled copy is a copy of the design. Why does this matter? A file is the copyrighted work. A remodeled asset resembles the copyrighted work. Depending on accuracy of reproduction vs. amount of modification, the remodeled asset may represent a derivative work of significant originality. Since you dislike links to Wikipedia, I'll just exercise my fair use rights and insert this quote from the article about fan art: "The legal status of fan made art in America may be tricky due to the vagaries of the United States Copyright Act. Generally, the right to reproduce and display pieces of artwork is controlled by the original author or artist under 17 U.S.C. § 106. However, fan art using settings and characters from a previously created work could be considered a derivative work, which would place control of the copyright with the owner of that original work. Display and distribution of fan art that would be considered a derivative work would be unlawful. However, American copyright law allows for the production, display and distribution of derivative works if they fall under a fair use exemption, 17 U.S.C. § 107. A court would look at all relevant facts and circumstances to determine whether a particular use qualifies as fair use; a multi-pronged rubric for this decision involves evaluating the amount and substantiality of the original appropriated, the transformative nature of the derivative work, whether the derivative work was done for educational or noncommercial use, and the economic effect that the derivative work imposes on the copyright holder's ability to make and exploit their own derivative works. None of these factors is alone dispositive." If it's been uploaded to a third party service like SL, it cannot be considered just private personal use, even if it goes no further than your inventory. So if I upload a piece of music to Apple's iCloud, I distribute it? Wouldn't that render the entire service illegal? Sigh. Not only do you apparently not read your own linked articles, you also don't even read my explanations of why you should. That's not a trademark case. It's a patent case. Totally different thing, not comparable at all. It was not a patent case because there is no such thing as a design patent in Germany where the case was filed. Subject of the dispute was the German equivalent of a trade dress: Apple claimed that Samsung's tablet looked too much like an iPad, causing confusion in the marketplace. The court agreed. A textbook example of a trademark case. An architect's blueprint is absolutely a copyrighted item, and no one may copy it without the architect's permission. The blueprint is not the building, however. Did it occur to you that in the year 2012, a blueprint is a digital model? So when you reproduce the building as a digital model, what exactly are you copying? What you CAN do is make an artistic representation of the building, once it's been constructed in a public space. If you don't believe me on that, go ahead and read the very article you linked. Once again, shall I quote the relevant passages for you? I guess I'm gonna have to. Here's what it says about copyrighting a blueprint: Copyright protection can extend to general drawings and blueprints, preliminary plans, sections, elevations, floor plans, construction plans, rough models, models of internal support, models of external appearance, photomontages of the building against backdrops, computer-generated images of a design, and constructed buildings.. And here's what it says about the right to make an artistic representation, after the building has been constructed in a public space: when a building is ordinarily visible from a public place, its protection as an "architectural work" does not include the right to prevent the making, distributing, or public display of pictures, photographs, or other pictorial representations of the work. Thus, the architect will not be able to prevent people from taking photographs or otherwise producing pictorial representations of the building. That last passage is a bit incomplete, in that It only references pictorial representations, rather than artistic representations in general. Sculptures and digital models are equally allowed. It's not incomplete at all. You just ignore the parts that fly in the face of your argment, and replace them with personal interpretation. There is nothing pictorial about a digital model until you render it. You are copying designs, floor plans etc., all of which are the architect's copyrighted work. So let's recap: You deny that fan art can be fair use, yet you insist that digital models of copyrighted buildings or furniture are not infringing. You say that EA's use of Bell designs is fair use, but anyone else's use of EA designs is not. If there was any doubt left about the ambiguity of intellectual property, you just successfully removed it. Link to comment Share on other sites More sharing options...
Chosen Few Posted March 5, 2012 Share Posted March 5, 2012 Masami Kuramoto wrote: No. A verbatim copy is essentially a copy of a file (e.g. from a game DVD). A remodeled copy is a copy of the design. Irrlelevant. Masami Kuramoto wrote: Why does this matter? It doesn't. Masami Kuramoto wrote: A file is the copyrighted work. No, a file is a piece of data that describes a piece intllectual property. The IP itself is what is copyrighted. Whatever format might describe it is simply a copy. If I take a digital painting, and print it out, it's no longer a file. But it's still the same copyrighted artwork. The file and the printout are both copies of the artwork, in different forms. The file is just a sequence of ones and zeroes that tells a computer what the artwork looks like, and the printout is a collection of ink dots that does the same, for the human eye. Masami Kuramoto wrote: A remodeled asset resembles the copyrighted work. If it resembles the copyrighted work, and it was deliberately created as such, then it's a copy of the copyrighted work. An inaccurate copy is still a copy. The legal test is not about accuracy or exacting precision. It's about whether or not a reasonable person would recognize the similarity. If draw a picture of Donald Duck, and put him an police uniform instead of his usual sailor suit, it's still Donald Duck, and I will have infringed upon Disney's IP rights, even though my particular picture is not a direct copy of any pre-exisitng one. Masami Kuramoto wrote: Depending on accuracy of reproduction vs. amount of modification, the remodeled asset may represent a derivative work of significant originality. If it's been heavily modified, then yes, it might be a deriviative work. But that changes nothing. The original author still owns the intellectual property. Only those parts of the work that are wholly original can be copyrighted separately. The creator of the deriviative may not distribute any of the elements from the source material without the first author's permission. Masami Kuramoto wrote: Since you dislike links to Wikipedia, I'll just exercise my fair use rights and insert this quote from the article about fan art: I never said I disliked links to Wikipedia. You made that up, entirely on your own. What I said was you really should read the articles you link, before you link them. So far, most of your links have said much the opposite of what you claimed they said. With that in mind, let's look at the passage you just cited. It, too, says precisely the opposite of what you've been arguing. Check out the last sentence of the first paragraph. "Display and distribution of fan art that would be considered a derivative work would be unlawful." What part of that is unclear to you? You cannot distribute a derivative work without the original author's permission. Your derivative is dependent upon IP that belongs to that author, not to you, and only that author has the right to determine whether, how, where, and by whom that property is distributed. Only whatever parts are wholly original may belong to you. As for the second paragraph, which deals with fair use, do I really have to repeat everyhting I already said about that subject? You may distribute a derivative work if, and only if, your usage is fair. And again, that mostly comes down to free speech issues. For example, say I want to parody a character. Well, my right to free speech gives me the right to make fun of any damned thing I please. So, I'm free to draw a charicature of the character, and distribute that charicature. None of that has anything to do with the topic of this thread. Ripping a model from a video game (or copying it by hand), uploading to SL, and redistributing it, is not fair use, period. If you'd just let go of your selfishness preconceptions of what you wish the law says, and take an honest objective look at what it actually does say, this would all be clear to you. Masami Kuramoto wrote: So if I upload a piece of music to Apple's iCloud, I distribute it? Wouldn't that render the entire service illegal? Was the DMCA repealed five minutes ago, and nobody told me? No, the service itself is not illegal. But your individual actions as a user MIGHT be. It depends on what license you have to the music. If you bought it on iTunes, then per Apple's agreement with the record companies, and your agreement with Apple, it's perfectly fine to put it on iCloud. If you bought it elsewhere, it's likely a very different story. Shall we explore the relevant passages from the iCloud terms of service? This part, in full compliance with the DMCA, states that you are responsible for what you upload, not Apple: You understand that all Content, whether publicly posted or privately transmitted on the Service is the sole responsibility of the person from whom such Content originated. This means that you, and not Apple, are solely responsible for any Content you upload, download, post, email, transmit, store or otherwise make available through your use of the Service. This part, in compliance not only with the DMCA, but also with copyright law as a whole, says you agree not to upload anything you don't have the right to upload. You agree that you will NOT use the Service to: e. engage in any copyright infringement or other intellectual property infringement (including uploading any content to which you do not have the right to upload), or disclose any trade secret or confidential information in violation of a confidentiality, employment, or nondisclosure agreement; Again, unless you bought the music on iTunes, it's very unlikely you have license to upload it. Masami Kuramoto wrote: It was not a patent case because there is no such thing as a design patent in Germany where the case was filed. Subject of the dispute was the German equivalent of a trade dress: Apple claimed that Samsung's tablet looked too much like an iPad, causing confusion in the marketplace. The court agreed. A textbook example of a trademark case. It was, and still is, an ongoing patent dispute. However, it does have additional elements to it that are somewhat unique to German law. I don't pretend to know much about the laws of Germany, since I don't live there, and have never done business there, but I do know they have an Industrial Design Act in place, which serves to protect the outward appearance of products. If my understanding is correct, industrial designs protections under German law exist in addition to the kinds of patent, trademark, and copyright protections we have here in the US. Why did I not think of this earlier? Chalk it up to the afore mentioned lack of sleep, in combination with your iinked article's use of the word "patent". In any case, it's got nothing to do with the subject of this thread. Masami Kuramoto wrote: Did it occur to you that in the year 2012, a blueprint is a digital model? So when you reproduce the building as a digital model, what exactly are you copying? Gee, you caught me. As a working digital artist in this day and age, I had no idea architects use CAD. Never mind that I'm routinely handed CAD files as part of my work. Come one, man. You really wanna be that silly about this? Go ahead and read the law for yourself. If that's too much for you, then at least read the article you linked. It explains it quite clearly. I've re-explained it several times here. Do I really need to do it again? Once the building has been built in public view, its copyright protections as an architecural work are no longer fully applicable. It's right there in black and white. If you keep refusing to even try to understand, there's nothing further I can do for you on this subject. Masami Kuramoto wrote: It's not incomplete at all. A wikipedia artical is not incomplete at all? 26 paragraphs, summarizing a subject that scores of full legal volumes are written about, is not incomplete at all? Right, and those tech dirt articles you linked epitomize responsible journalism. Masami Kuramoto wrote: You just ignore the parts that fly in the face of your argment, and replace them with personal interpretation. You've misinterpreted practically every legal point raised so far, in order to keep self-justifying your own greed and lack of concern for creator's rights, and then you say I'm the one ignoring the legalities that fly in the face of my arguments? Wow, man. Project much, do you? I haven't ignored a single thing. I added one thing that I felt was missing from one article. Riddle me this. If anything I've said with regard to the modeling of existing buildings is incorrect, then how do you explain the legality of Google Earth? Maybe you missed it, but Google is presently in the midst of an initiative (with the help of crowd sourcing, of course) to model every building in every city on Earth. It's been going on for years, and will be continuing for years to come. Google's got awfully deep pockets. There's a LOT of money to be made in lawsuits by architects if they're committing thousands of counts of copyright infringement with all those building models. Yet no such suits have been brought. Is it your belief that every architect in the world has just been busy with other things? Or how about this one, oh great and wise interpreter. I've been hired many times over the years, by many different companies, to replicate various city blocks and such, for use in games, virtual worlds, television shows, even the real estate business. You really want to tell me I've been breaking the law every time I've done that? My attorney doesn't seem to have any problem with it when he reviews my contracts. Once again, if a building exists in public view in the real world, then all publicly viewable aspects of it are reproducible, in any medium (excepting any incorprated artworks that may exist separately from the whole). Show me a law that prohibits this, and then we'll have something to talk about. Like I said, I dare you to prove me wrng. Until then, all appearances are you're just grasping at straws because you're frustrated with me right now, and you want to do anything you can to try to catch me in a mistake about SOMETHING. Masami Kuramoto wrote: There is nothing pictorial about a digital model until you render it. That's really not true, but even if it were, it wouldn't change anything. First, your narrow focus solely on pictorials is unwarranted. As I said, the article is incomplete in that it excludes representations that are sculptural, rather than strictly pictorial. Sculpture, whether physical or digital is in no way disallowed. Heck, the winner of the Halloween contest I attended last year came dressed as the building in which the contest took place. He had carefully and immaculately created a wearable sculpture, in exquisite detail. It's a beautiful old building, and a very tall one, so there were hundreds of little windows, gables, and all manner of other features to sculpt and paint. He did an outstanding job, and well deserved the $5000 he won for taking first prize in the contest. You really want to try to claim what he did was illegal in any way? It absolutely was not. It happens he did all the work physically (carved poly foam, I believe). But had he done the modeling in a computer, and then spit it out on a 3D printer, it would have been no different, legally. Had he brought a few thousand copies of the costume, and given one to everyone in attendance, that wouldn't have been illegal either. The building is in public view, and thus artistic representations of it are fully allowed. Second, your understanding of what a rendering is seems to be a little screwy. Just to display a model on screen, it has to be rendered. Whether you're looking at it in SL, or in a modeling program, or what have you, you're looking at a rendering of it. The digital model itself is just that, digits. You really think a static screenshot of any one frame is more legal than a series of frames displayed in sequence? Masami Kuramoto wrote: You are copying designs, floor plans etc., all of which are the architect's copyrighted work. No, you're copying publicly viewable scenery. Just because you personally are unable or unwilling to wrap your brain around the concept that there is a legal difference between the design of a building, and the publicly viewable end result, does not mean the difference isn't actually there. By so stubbornly refusing to acknowledge that, you only serve to make yourself look far less intelligent than I know you actually are. Masami Kuramoto wrote: So let's recap: You deny that fan art can be fair use No, I never said anything of the kind, nor would I. Once again, you made that up, all on your own. I think we'd all appreciate it if you'd stop doing that. Fan art potentially CAN be fair use, just as any other reproduction potentially could be. But you must understand, it's not the fact that a piece might be considered fan art that makes its usage fair or unfair. It's all about how it's being used, and for what purpose. For the umpteenth time now, there's nothing fair about ripping a model out of a game (or copying it by hand), uploading it to SL, and redistributing it to the public, without the owner's permission. Masami Kuramoto wrote: yet you insist that digital models of copyrighted buildings or furniture are not infringing. Now who's ignoring the parts that fly in the face of his arguments? Once again (and this is really getting painful by now), a building, once built, becomes part of the scenery. It's no longe legally considered just an architectural work, and copyright protections no longer fully apply. There's nothing illegal about copying scenery. As you're such an advocate of public entitlement over private copyright, I would have thought you'd be delighted to learn this. But since I said it, and we're arguing right now, it must automatically be bad, right? Furniture is utilitarian in nature, and cannot be copyrighted. I would have thought you'd be thrilled at that information as well, since it fits your public entitlement model perfectly, if that's how you want to look at it. Now, if a building or a piece of furniture happens to incorporate artistic works that are separable from the utilitarian elements, then those artistic works are independently copyrightable. Any reproductions must omit those artistic elements, until and unless permission has been obtained from the rightful owner. That's exactly what I've been saying all along, and it's just as true this time as it was the first time. Your attempt claim that I said something else is amazingly ridiculous. The full record of the conversation is right here, for all to read, for crying out loud. You really think anyone's that stupid? Masami Kuramoto wrote: You say that EA's use of Bell designs is fair use, No, I said that in my opinion, EA is in the wrong. I then followed that up with some speculation that they'll probably be able to make a compelling case, even though I disagree with them. Masami Kuramoto wrote: but anyone else's use of EA designs is not Correct. EA's original designs are copyrighted and/or trademarked works, which they own. Nobody can just take those properties and reproduce them without EA's permission. Masami Kuramoto wrote: If there was any doubt left about the ambiguity of intellectual property, you just successfully removed it. Everything we've discussed here is quite straight forward. There's very little ambiguity in any of it. As one poster mentioned, the vast majority of it falls under simple common sense. The fact that you opt not to understand it, because to do so would mean you'd have to surrender your view that it's OK to steal, in no way changes the actual facts on the ground. 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Chosen Few Posted March 5, 2012 Share Posted March 5, 2012 Jenni Darkwatch wrote: I think one important point has been missed entirely: It's nearly impossible for consumers to know whether content is ripped or not Actually, I thought we'd pretty well covered that. I said a few times that this is precisely why it's important to do nothing more than notify the owner, and let the owner take it from there. We can't know whether a copy is actually authorized or not, but the owner obviously will know. Jenni Darkwatch wrote: Btw, from a creators side of things, and not SL related: If I create something, I am under no obligation to provide access to it to anyone else. If someone makes a movie for example and decides not to publish it in the USA, people in the USA are SOL - it doesn't give anyone the right to produce unauthorized copies out of some idiotic sense of entitlement. The same holds true for inventions. Regardless of the reason, if the inventor decides to block the use of his/her invention, no one has any right whatsoever to circumvent that. There's actually quite a few real-world examples of such cases. In relation to SL: If anyone would reproduce my RL work in SL, you bet I'll go after their RL ass to the maximum extent permitted by law. Amen! Link to comment Share on other sites More sharing options...
Chosen Few Posted March 5, 2012 Share Posted March 5, 2012 Kwakkelde Kwak wrote: BTW..did you sleep at all last night? No, but I did sleep a little during the day. Not cool! Link to comment Share on other sites More sharing options...
Chosen Few Posted March 6, 2012 Share Posted March 6, 2012 Medhue Simoni wrote: Of course, I didn't read all the comments, but I'll add in my 2 cents. You really should. There's good information throughout, some of which may clear up some misunderstandings you appear to have, from what you wrote. Medhue Simoni wrote: First, let's get somethings straight here. A COPY, is a COPY, not a replication. I'm not sure what you're trying to say. How do you define the difference? Whether we call it a "copy" or a "replication" or a "duplicate" or a "thingamabob", any unauthorized reproduction is just as unauthorized and just as much a reproduction. Semantics don't change anything. Medhue Simoni wrote: Whether some1 is entitled to replicate any1 elses works or ideas is a whole other matter than copyrights. Without knowing what your definition of "replicate" might be, it's awfully hard to try to make sense of that statement. Producing a replica of copyrighted material is absoltely a matter of copyright. Medhue Simoni wrote: The other thing that should be made clear is that man makes laws, and man is falible. Then, there is a whole other matter of interpretting and the intent of those laws. Just because a MAN rights a LAW does not make it ethical, hence why it is good that we don't all have the same LAWs. Sure. I don't really get how that's relevant to the topic at hand, but there's no disagreeing with it, in and of itself. Medhue Simoni wrote: If some1 wants to spend there precious time rigging and sell avatars from game companies, and the creators of those avatars don't mind, why should you? I don't. Nobody does. If the author has given permission, then there's absolutey no problem. The intial question was about what to do, as a concerned citizen, if you suspect that permission has NOT been given. And the answer, which no one has disagreed with, is you can notify the author, and let him or her take it from there. The ensuing argument began when one person suggested that if permission is not given, then people should just take the work anyway, to "fill the void". I'm sure you'd agree that that suggestion is wrong. Medhue Simoni wrote: Let's just extent the situation to it's likely path. Person rips a character, rigs it, and sells it on the MP. Said game company does not care. Others realize that they can do the same. Now, we have 10 people all selling the same character. The original ripper no longer makes enough to cover his effort, hence that original person does not waste anymore of their precious time, in life, ripping content. Maybe, they even realize that the only way to sustain an actual income is by creating their own characters that no1 else is selling. That's an interestingly optimistic, if unlikely, scenario. The unfortunate far more likely reality is that the game company would care, and it's the ripper who would not not care. The ripper, because he's a ripper, will just do whatever he's gonna do, no matter what the game company has to say about it, won't stop until he actually gets in trouble for it, and won't learn a damned thing from the experience. I'd love to think that that's not how it would go down. But that's usually how it is. Medhue Simoni wrote: Now, of course, I'm not incensitive to creators having their creations COPIED and then the ripper redistributing them. Whether it is illegal or not, it is unethical to redistribute an exact copy and insulting to the creator. On the other hand tho, a replication is quite ethical and flattering, irreguardless of the law. Again I have no idea what you might mean by this distinction between a "copy" and a "replication". If the work belongs to someone else, don't reproduce it without that person's permission. It's that simple. Medhue Simoni wrote: The bottom line is whether an environment is encouraging enough for creators to spend their precious time creating for it. If enough creators feel that it is not worth their time to create something new, then you will quickly see those creators make conscious decisions to focus their time in more productive ways. This is exactly why copying is considered unethical. It's a big part of why it's unethical, yes. The full picture reaches down to more fundamental levels than that, though. It's not just about consequences, but about inherent rights. The reason it's not ethical for me to take what rightfully belongs to you, simply because it's yours, and not mine. To take it would be to violate your rights as a human being. The possibility that such a violation might in turn discourage you from behaviors you would otherwise engage in is consequential, not causal. Violating your rights is inherently wrong, in and of itself. Whatever negative results come of it are additive to the intial vilation. The consequences aren't what make it wrong. The inherent wrongess of the act itself is what makes it wrong. Medhue Simoni wrote: What I will do is bring up the point of censorship. LL has rule against defaming others, but I personally think this is half the problem. That's not a question of censorship. It's a question of preventing unfair accusations. In the real world, there's a legal process to deal with such things. Within the confines of a privately run service, we don't have any of that. I totally understand your point that in an ideal world, people should be able to say whatever they please. But in reality, as you pointed out earier in your post, actions have consequences, and not always for the better. Today, you might truthfully warn the public about somoene doing bad things, and pat yourself on the back for your pubic service. But tomorrow, someone else might lie through their teeth to accuse an innocent person of doing similarly bad things, and the public will have no way of knowing who's telling the truth. The damage to that latter person's reputation, their ability to do business, and their basic enjoyment of SL might well be irreparable, despite the fact they did nothing to deserve it. Also, equally importantly, is the fact that LL has a business to run. Their job is to make sure all SL users can enjoy their experience, to the best possible degree. Being defamed, even if deserved, is not recipe for enjoyment. I'm among the most passionate advocates of free speech you could ever meet, but I fully agree with a no-defamation policy within the confines of a privately run service. LL is not a government, and we are not citizens of SL. We use their service voluntarily. In order for it to exist, and be the best it can be, as many people as possible must do likewise. We all have to want to be here, or it goes away. Thus it's to all our benefit to keep things positive, so no one is discouraged from participating. Medhue Simoni wrote: Here in the States, we have the 1st amendment, which is also handcuffed by defaming. No, the First Ammendment is not "handcuffed" in this regard at all. You can say anything you want about anyone at all, as loudly as you want, as long as it's true. There's no defamation if it's true. If it's not true, you still get to say it, but your victim might choose to sue you for it. If he does, he's not taking away your First Ammendment rights. He's simply exercising his own equally important rights. If the court determines you were in the wrong, there will be certain consequences for you. But the application of those consequnces does not mean you didn't have the right to say what you said. Medhue Simoni wrote: It is totally a situation where people with large amounts of cash can bride officials to keep others from pointing out their flaws. No idea where you're getting that. Medhue Simoni wrote: See, people who act ethically, without fear, never have to do much to defend themselves. Tell that to anyone who's ever been wrongfully accused of a crime, or who's been publicly ridiculed without justification, or who's been otherwise unfairly persecuted. Anyone can accuse anyone of anything. Without getting into details, I'll share that I've been wrongfully accused before, and I can promise you, defending yourself against such things can be very costly, not just financially, but also emotionally, and physically. It's incredibly naiive to think that just because the truth is on your side, that's all you need, and everhing will just magically be OK. LIfe is not that fair. Medhue Simoni wrote: But, when you keep people from pointing out the crooks, that is a serious problem, especially when the system controllers are limited in how they can control the crooks. And just who gets to determine who's a crook and who's not? You? Medhue Simoni wrote: Most people will always come to the defense of the wronged, and condem those that exploit. Again, incredibly naiive thinking. How are "most people" even supposed to know who's been wronged, let alone jump to their defense? What is this magic power of insight you credit people with having? I can assure you, it doesn't exist. How many people come to the aid of an innocent teacher falsely accused of molesting children? How many step up to defend a politician falsely accused of taking bribes? How many rush to defend a motorist who's been falsely issued a speeding ticket by a dishonest cop with a quoata to fill? Such things happen more often than any of us would like to think about, and very rarely is anyone willing or able to do anything about it. Medhue Simoni wrote: I'm sure most of us know the power of word of mouth, and I think it is a much better social control than any LAW. So you're perfectly OK with witch hunts, lynchings, and the like? As long as you heard it from a friend who heard it from a friend who heard it from another that that this guy's been messing around, let's just take him out back and kick the crap out of him. If no one comes to his defense to try to stop us, then we automatically know he's guilty, right? Your attitude is frighteningly dangerous, Medhue. 1 Link to comment Share on other sites More sharing options...
Masami Kuramoto Posted March 6, 2012 Share Posted March 6, 2012 Chosen Few wrote: No, a file is a piece of data that describes a piece intllectual property. The IP itself is what is copyrighted. Whatever format might describe it is simply a copy. If I take a digital painting, and print it out, it's no longer a file. But it's still the same copyrighted artwork. The file and the printout are both copies of the artwork, in different forms. The file is just a sequence of ones and zeroes that tells a computer what the artwork looks like, and the printout is a collection of ink dots that does the same, for the human eye. Printing is an automatic process, a format conversion, which has nothing to do with creative expression. Remodeling on the other hand is a creative, artistic process. If it resembles the copyrighted work, and it was deliberately created as such, then it's a copy of the copyrighted work. An inaccurate copy is still a copy. Depending on the level of inaccuracy, it can qualify as a derivative work. And derivative works can constitute fair use. The legal test is not about accuracy or exacting precision. It's about whether or not a reasonable person would recognize the similarity. Irrelevant. Mona Lisa with a moustache, Marilyn Monroe's face with bright colors. Everyone recognizes the similarities, everyone agrees that the works are derivative rather than mere copies. If it's been heavily modified, then yes, it might be a deriviative work. But that changes nothing. The original author still owns the intellectual property. Only those parts of the work that are wholly original can be copyrighted separately. The creator of the deriviative may not distribute the original elements without the original author's permission. Derivative works can constitute fair use. That doesn't mean that the original author loses the rights to his work. In fact fair use requires someone else's copyrighted work. As for the second paragraph, which deals with fair use, do I really have to repeat everyhting I already said about that subject? You may distribute a derivative work if, and only if, your usage is fair. And again, that mostly comes down to free speech issues. It always comes down to free speech issues because copyright is, by its very nature, a restriction of speech. Any information you disseminate, regardless of originality, is speech. The fair use doctrine is nothing more than an admission that some forms of reproductive speech are either too insignificant or too important to be resctricted by copyright. Too insignificant so that they don't interfere with the original author's interests, or too important so that the author's interests take a backseat. None of that has anything to do with the topic of this thread. Ripping a model from a video game (or copying it by hand), uploading to SL, and redistributing it, is not fair use, period. Probably not. But ripping a model from a videogame (or copying it by hand), uploading it to SL, and then using it to create some machinima that transforms the original work into something else by giving it a new meaning, expressing criticism, or just plain poking fun at it, is fair use, period. But actually that is besides the point. Because our discussion is not really about whether fair use of ripped models is possible or not. It is about vigilantism and my refusal to participate in it. No, the service itself is not illegal. But your individual actions as a user MIGHT be. It depends on what license you have to the music. If you bought it on iTunes, then per Apple's agreement with the record companies, and your agreement with Apple, it's perfectly fine to put it on iCloud. If you bought it elsewhere, it's likely a very different story. Shall we explore the relevant passages from the iCloud terms of service? This part, in full compliance with the DMCA, states that you are responsible for what you upload, not Apple: You understand that all Content, whether publicly posted or privately transmitted on the Service is the sole responsibility of the person from whom such Content originated. This means that you, and not Apple, are solely responsible for any Content you upload, download, post, email, transmit, store or otherwise make available through your use of the Service. This part, in compliance not only with the DMCA, but also with copyright law as a whole, says you agree not to upload anything you don't have the right to upload. If uploading equals distribution (which is what you said earlier), then there is no way to use the service legally (except for one's own original recordings), because commercial music never comes with distribution rights. Again, unless you bought the music on iTunes, it's very unlikely you have license to upload it. If uploading equals distribution, then even music from iTunes cannot be uploaded. Maybe you were just wrong about the upload=distribute part. It was, and still is, an ongoing patent dispute. There are patent disputes between Apple and Samsung, but the case about rounded corners isn't one. But then of course, the whole reason why we are still talking about it at all is because you just can't concede that rounded corners on a tablet computer are now considered intellectual property, turning Samsung's tablet into a rip-off product in spite of totally different hardware and even a different form factor. Once the building has been built in public view, its copyright protections as an architecural work are no longer fully applicable. It's right there in black and white. If you keep refusing to even try to understand, there's nothing further I can do for you on this subject. A 3D model is not a pictorial reproduction. And the architect's copyright to the model is fully applicable. A wikipedia artical is not incomplete at all? 26 paragraphs, summarizing a subject that scores of full legal volumes are written about, is not incomplete at all? Your quote was incomplete. You left out the parts that proved you wrong, and you added things that are not written down anywhere, because you made them up on the fly. Right, and those tech dirt articles you linked epitomize responsible journalism. Logical fallacy 101: Discredit the source. Riddle me this. If anything I've said with regard to the modeling of existing buildings is incorrect, then how do you explain the legality of Google Earth? Fair use. Google's use of the buildings is transformative and does not harm the markets of the originals. Just like Google's use of thumbnail pictures in their image search service. Wow, that was easy. Or how about this one, oh great and wise interpreter. I've been hired many times over the years, by many different companies, to replicate various city blocks and such, for use in games, virtual worlds, television shows, even the real estate business. You really want to tell me I've been breaking the law every time I've done that? Yes, according to your own interpretation of copyright. According to my interpretation, it could be fair use, but we will never find out because the IP owners didn't care. My attorney doesn't seem to have any problem with it when he reviews my contracts. EA's lawyers didn't see the helicopter issue coming either. Nor did Samsung's lawyers expect rounded corners to become a problem. Intellectual property is a minefield. Once again, a building exists in public view in the real world, then all publicly viewable aspects of it are reproducible, in any medium. Show me a law that prohibits this, and then we'll have something to talk about. 17 USC §102(a)(8). First, your narrow focus solely on pictorials is unwarranted. As I said, the article is incomplete in that it excludes representations that are sculptural, rather than strictly pictorial. Sculpture, whether physical or digital is in no way disallowed. It depends on whether fair use provisions apply or not. Pictorial reproduction of buildings in public spaces is generally considered fair use, but you cannot conclude that 3D models automatically qualify as well. These issues need to be determined by courts on a case-by-case basis, and as long as that hasn't happened, we are in unchartered territory. Heck, the winner of the Halloween contest I attended last year came dressed as the building in which the contest took place. He had carefully and immaculately created a wearable sculpture, in exquisite detail. It's a beautiful old building, and a very tall one, so there were hundreds of little windows, gables, and all manner of other features to sculpt and paint. He did an outstanding job, and well deserved the $5000 he won for taking first prize in the contest. You really want to try to claim what he did was illegal in any way? It absolutely was not. So what? The other guy who came in a Darth Vader costume wasn't arrested either. That doesn't mean you can model a Darth Vader avatar and sell it in SL. These are totally separate things. Second, your understanding of what a rendering is seems to be a little screwy. Just to display a model on screen, it has to be rendered. Whether you're looking at it in SL, or in a modeling program, or what have you, you're looking at a rendering of it. The digital model itself is just that, digits. You really think a static screenshot of any one frame is more legal than a series of frames displayed in sequence? No. I'm saying that the model itself is copyrighted, regardless of its rendered presentation. No, you're copying publicly viewable scenery. A 3D model is not publicly viewable scenery. A photo is. Just because you personally are unable or unwilling to wrap your brain around the concept that there is a legal difference between the design of a building, and the publicly viewable end result, does not mean the difference isn't actually there. I've been talking about that difference all the time. The one who can't wrap their head around it is you. Once again (and this is really getting painful by now), a building, once built, becomes part of the scenery. It's no longe legally considered just an architectural work, and copyright protections no longer fully apply. Wrong. Copyright protection fully applies, fair use notwithstanding. Fair use does not eliminate copyright. Correct. EA's original designs are copyrighted and/or trademarked works, which they own. Except for the helicopters which are not original. And that's where the ambiguity is. EA creating a derivative work of Bell's aircraft design for commercial purposes is fair use. Joe Sixpack creating a Darth Vader avatar for SL roleplay is theft. Link to comment Share on other sites More sharing options...
Pamela Galli Posted March 6, 2012 Share Posted March 6, 2012 Chosen Few wrote: Pamela Galli wrote: I am asking if an item is, for example, 1) easily accessible inworld (location known, picture provided) and 2) is an exact copy, is it reasonable to assume that LL has the means to remove it from inventory. If not, under what circumstances would LL have the ability to remove it, if any? You said, I believe, that some did exist, though. Thanks for clarifying, Pam. All I meant to imply is that such means COULD potentially be put in place. I don't know if they actually do have it or not. My earlier point was mostly about the infeasibility of that kind of thing, since it can so easily be invalidated. Pamela Galli wrote: Now, LL has said if I could provide the names that the infringer gave the things, they would remove them; I was able to do that with a couple of objects she had renamed, although most were just called Object -- but not the actual sculpt maps and textures. That goes right along with what I was saying. If they know about a specific item, they'll nuke it. But if they don't know about it, they simply can't. Pamela Galli wrote: I realize the any process would be time consuming, but the DMCA does not, as far as I have seen, exempt a provider from complying if it is. They are required to remove any materials listed in a takedown notice, whether or not it's time consuming. However, there are two things in the law that you might be less than thrilled about: The copyright owner is required to provide information sufficient to permit the service provider to locate the infringing materials. Providers have no duty to proactively seek out infringing materials themselves. With that in mind, everything you've described so far about LL's process sounds to be in full compliance with the law. It's just unfortunate that the law just isn't particularly well set up to account for how an inventory system like SL's has to work. There's obviously no way at all for you, the copyright holder, to peer into the infringer's inventory. Therefore, you cannot be of any direct help to LL in locating any inventoried copies of your stuff. As for LL themselves, even though they're not required to go looking, I'm inclined to believe they would, if it were feasible. The fact that they offered to delete items by name suggests they do want to do whatever they actually can. It's just a difficult situation. Pamela Galli wrote: And given that I put almost $2000 a month in LL's pocket, I don't think it unreasonable for them to spend the time complying. It's not unreasonable to expect them to spend whatever time is required to comply with the law, no. But when they've done exactly that, and it's not enough in your view, what else is reasonable to expect of them? I don't think it's reasonable to expect them to make an employee spend weeks or months examining every item in an inventory, when that employee has a regular job to do, no matter how much I might be spending on SL. If I could think of any reasonable way of finding all copies, I'd feel differently about it, of course. But I just don't think there is one. If you were to sue the infringer, you could perhaps gain access to the inventory under subpoena, and then you, or your investigator, could go through it. Short of that, I'm not sure what other options could exist. I understand the bolded words above; what I am saying is that when I give LL the location of an item with my texture or sculpt map inworld, LL can get the UUID from that object and find it in inventory. They have done it before -- everyone has heard about the "placeholder" items that LL replaces this deleted stolen inventory with (like the stolen dances). Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 6, 2012 Share Posted March 6, 2012 Pamela Galli wrote: I understand the bolded words above; what I am saying is that when I give LL the location of an item with my texture or sculpt map inworld, LL can get the UUID from that object and find it in inventory. They have done it before -- everyone has heard about the "placeholder" items that LL replaces this deleted stolen inventory with (like the stolen dances). I'm not saying what you state here isn't true, because I'm not absolutely sure, but it's not the way I understand things work in SL. To my best knowledge, an object rezzed on a sim is also stored as a file on that very server. The object in inventory however is stored on an inventory server. This means the items don't share their UUID. Ofcourse you can see the name of the rezzed object, that's probably why LL accepts a name rather than a UUID which isn't always obtainable, even if you manage to get a copy of the object. Did I read the objects you saw were mostly called "Object"? that makes it very hard for LL to find the item in the infringers inventory. I'm a semi professional 3d builder or something close to that, not sure how to call it, and even I often forget rule 1 which is "name all your objects". Now in this case it could even be on purpose. Anyway, the result is most residents who build things will probably have a ton of "Objects" in inventory. I can imagine it's not possible for LL to sift through all of them. I can even imagine the thief has named the objects in inventory and renames them when rezzed to make it even harder to identify them. All the above, added to the problem you ( and many others including myself) have with stolen items, makes me believe LL should change their "object tagging system" to make it easier to match objects. the creator of an object is included in the file, the date of creation is, it might be good if the date of creation is saved for all copies aswell and an "identity" tag. That's all too technical for me, as I don't know what exactly is saved and what's not and how hard it is to change and what impact that will have on the server load etc... Link to comment Share on other sites More sharing options...
Masami Kuramoto Posted March 6, 2012 Share Posted March 6, 2012 Almost missed this one between the walls of text... Chosen Few wrote: The ensuing argument began when one person suggested that if permission is not given, then people should just take the work anyway, to "fill the void". I'm sure you'd agree that that suggestion is wrong. Chosen, I'm kindly asking you not to misrepresent my statements, especially when addressing others. I think I don't need to tell you that this is poor style and tantamount to trolling. Please save yourself the embarrassment of walking down that path. Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 6, 2012 Share Posted March 6, 2012 Masami Kuramoto wrote: I think I don't need to tell you that this is poor style and tantamount to trolling. Please save yourself the embarrassment of walking down that path. Not that I need to point it out to anyone really I think, let alone Chosen himself, but if there's anyone making up things, misinterpreting things and is straightout lying, not to mention advocating and defending theft, it's you. Let it go. You're doing nobody a favour. Link to comment Share on other sites More sharing options...
Masami Kuramoto Posted March 6, 2012 Share Posted March 6, 2012 Kwakkelde Kwak wrote: Not that I need to point it out to anyone really I think, let alone Chosen himself, but if there's anyone making up things, misinterpreting things and is straightout lying, not to mention advocating and defending theft, it's you. Let it go. You're doing nobody a favour. Fair use is not theft. It does not require permission either. And no, I wasn't lying anywhere. Someone asked what we do when we see a ripped mesh, and I answered truthfully. If the mesh does not obviously harm the IP owner's market in any way, if its use is transformative, non-substantial and/or non-commercial, I will not report it. I will not call the police when I see fans roleplaying Star Trek or similar pop culture, because these things don't harm anyone, and I don't think they require authorization. If they do, then something is seriously wrong with copyright. Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 6, 2012 Share Posted March 6, 2012 Masami Kuramoto wrote: Fair use is not theft. It does not require permission either. 100% agreed, your interpretation of fair use is at best a bit blurred though, as Chosen tries to explain. I wasn't lying anywhere. Here's one: I recall you saying there's no such thing as patent in Germany, that's not true. Let's rephrase "lying" then and call it "being mistaken". Still lying, just not on purpose. Someone asked what we do when we see a ripped mesh, and I answered truthfully. If the mesh does not obviously harm the IP owner's market in any way, if its use is transformative, non-substantial and/or non-commercial, I will not report it. That's your right. That doesn't mean the object falls under "fair use". Nobody is forcing you to report anyone. The thing is it doesn't have to harm the owner's market in any way, the thing that matters is if it could. So if at any point in time the IP owner wants to sell the object in SL, having it already there is potentially harmful. That also means it makes no difference at all if the object is free or not. I will not call the police when I see fans roleplaying Star Trek or similar pop culture, because these things don't harm anyone, and I don't think they require authorization. If they do, then something is seriously wrong with copyright. If they are reinacting a part of one of the movies, that could be a violation, I don't know. If they are wearing a Luke Skywalker suit, have a Luke Skywalker tag over their head and offer the objects on the marketplace that most certainly is a violation. (I think the tag would be a trademark violation btw). Me using the words "Luke Skywalker" in this post is a perfect example of fair use, might that apply to trademarks as it does to IP. I use it to explain something. If you say Darth Vader has a blue suit, I can post a picture of him to show you it's black. That's fair use. I can't use an official full resolution movie poster though, i can show you what I need to make myself understood. What's important here is not how you or anyone else feels about copyrights, it's whether there's a violation. If you don't like the copyrights, there are two things you can do. You can ignore them and hope for the best (the best for you that is) or you can try to get the law changed. If it's legal to use any IP because you're a fan, that would mean anyone could make a game based on the IP, make clothing using the IP etc. The excuse would be "there is no equivalent to this game offered by the IP owner so it's not harming them" or "they don't offer a size XXXXL shirt, so I am allowed to make my own" That's nonsense. What you should do is contact the IP owner and ask if they can offer such a shirt, or if they are ok with you making your own. It's common sense. The fact it doesn't cost them any money since you won't buy a smaller shirt doesn't matter. What matters is they might offer an XXXXL shirt two years from now and you would have bought that probably. If their answer is "no, you cannot make that shirt" that is very annoying, I wouldn't go as far as saying there's something seriously wrong with the copyrights though. Patents are a different issue I think, like oil companies patenting or buying patents for energy efficient machines and processes, so they won't ever hit the market. Link to comment Share on other sites More sharing options...
Masami Kuramoto Posted March 6, 2012 Share Posted March 6, 2012 Kwakkelde Kwak wrote: 100% agreed, your interpretation of fair use is at best a bit blurred though, as Chosen tries to explain. The definition of fair use is blurred. However, Chosen is plain wrong when she says that every unauthorized use of copyrighted content in SL is infringing. Ironically, she is also plain wrong when she says that every unauthorized use of copyrighted architecture is not infringing. Here's one: I recall you saying there's no such thing as patent in Germany, that's not true. Let's rephrase "lying" then and call it "being mistaken". Still lying, just not on purpose. I said there is no design patent in Germany. Product designs get registered as Geschmacksmuster, which is an intellectual property right totally separate from patents. So if at any point in time the IP owner wants to sell the object in SL, having it already there is potentially harmful. The risk that the IP owner finds himself in competition with unlicensed versions of his works is exactly zero, because DMCA takedown notices can be filed at any point in time. When the IP owner is ready to enter the market, he can purge all unauthorized content or offer a way to license the content retroactively. That choice is entirely up to the owner. However, determining whether fair use provisions apply is up to the courts. It is pointless to speculate about it. What's important here is not how you or anyone else feels about copyrights, it's whether there's a violation. Whether or not we report unauthorized content is always a matter of how we feel about it personally. You may feel that what I consider fair use is actually infringing, and vice versa. I'm not asking you to agree with me, but if you accuse me of advocating theft, you better do your homework. If you don't like the copyrights, there are two things you can do. I don't have an issue with copyright, but I do have an issue with people who don't accept it in its entirety, i.e. including the limitations and exceptions. Fair use is part of copyright, and if you don't like it, all you can do is pray that SOPA, PIPA and ACTA pass ASAP and fix it for you. Link to comment Share on other sites More sharing options...
Innula Zenovka Posted March 6, 2012 Share Posted March 6, 2012 Masami Kuramoto wrote: The definition of fair use is blurred. Surely whether or not something is or isn't fair use is a factual question, to be decided by a court by applying the relevant legal tests for the jurisdiction in question. You or I might have our opinions about whether something's "fair use" or not, but they're not particularly relevant. Link to comment Share on other sites More sharing options...
Masami Kuramoto Posted March 6, 2012 Share Posted March 6, 2012 Innula Zenovka wrote: Surely whether or not something is or isn't fair use is a factual question, to be decided by a court by applying the relevant legal tests for the jurisdiction in question. You or I might have our opinions about whether something's "fair use" or not, but they're not particularly relevant. Exactly my point. Link to comment Share on other sites More sharing options...
Pamela Galli Posted March 6, 2012 Share Posted March 6, 2012 Kwakkelde Kwak wrote: Pamela Galli wrote: I understand the bolded words above; what I am saying is that when I give LL the location of an item with my texture or sculpt map inworld, LL can get the UUID from that object and find it in inventory. They have done it before -- everyone has heard about the "placeholder" items that LL replaces this deleted stolen inventory with (like the stolen dances). I'm not saying what you state here isn't true, because I'm not absolutely sure, but it's not the way I understand things work in SL. To my best knowledge, an object rezzed on a sim is also stored as a file on that very server. The object in inventory however is stored on an inventory server. This means the items don't share their UUID. Ofcourse you can see the name of the rezzed object, that's probably why LL accepts a name rather than a UUID which isn't always obtainable, even if you manage to get a copy of the object. Did I read the objects you saw were mostly called "Object"? that makes it very hard for LL to find the item in the infringers inventory. I'm a semi professional 3d builder or something close to that, not sure how to call it, and even I often forget rule 1 which is "name all your objects". Now in this case it could even be on purpose. Anyway, the result is most residents who build things will probably have a ton of "Objects" in inventory. I can imagine it's not possible for LL to sift through all of them. I can even imagine the thief has named the objects in inventory and renames them when rezzed to make it even harder to identify them. All the above, added to the problem you ( and many others including myself) have with stolen items, makes me believe LL should change their "object tagging system" to make it easier to match objects. the creator of an object is included in the file, the date of creation is, it might be good if the date of creation is saved for all copies aswell and an "identity" tag. That's all too technical for me, as I don't know what exactly is saved and what's not and how hard it is to change and what impact that will have on the server load etc... Even if LL removes the few objects that the infringer has named, they don't remove the actual sculpt maps and textures from inventory. I am assuming that if I can click on something inworld and get the UUID of the texture or sculpt map in inventory, so can LL. Plus I know multiple famous incidents where LL deleted an asset across the entire grid, from everyone's inventory, so I assume that they can delete something from one inventory if they know the UUID. My opinion (and not just mine): LL is not in compliance. And since at least one well known merchant who filed a lawsuit claiming this, is no longer on the grid at all, you will likely not see any more. Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 6, 2012 Share Posted March 6, 2012 All you seem to want is pick an argument over nothing, I can see how your discussion with Chosen got out of hand real quick..... Masami Kuramoto wrote: The definition of fair use is blurred. However, Chosen is plain wrong when she says that every unauthorized use of copyrighted content in SL is infringing. Ironically, she is also plain wrong when she says that every unauthorized use of copyrighted architecture is not infringing. Authorised by whom? By law or by the IP owner? Authorised means it's allowed, UNauthorised means it is NOT allowed, there's no way around that. You really read the entire architecture part incorrect. Blueprints are copyright protected. This means you can't hire an architect who spends a lot of time on the design and then fire him/her, use the blueprints to build your house, pass the blueprints to your neighbour who does the same etc. If your neighbour likes the looks of your house, built with the architect's blueprints, he's allowed to take pictures of it. I said there is no design patent in Germany. Product designs get registered as Geschmacksmuster, which is an intellectual property right totally separate from patents. A true case of Tomato Tomato. The fact it's filed under another group of IP rights doesn't mean it doesn't exist. That would be like saying we dutch people don't have patents, since here they are called "octrooi". Both the US "design patent" and the European "industrial design right" are pretty much the same. Either way it's certainly not a trademark issue as you claimed. The risk that the IP owner finds himself in competition with unlicensed versions of his works is exactly zero, because DMCA takedown notices can be filed at any point in time. When the IP owner is ready to enter the market, he can purge all unauthorized content or offer a way to license the content retroactively. That choice is entirely up to the owner. Completely irrelevant as I tried to explain with the t-shirt example. It's not about competition at all. It's about the IP owners rights to be the only one allowed to use the IP. Your argument is "it's allowed to steal someones car that hasn't been moved in a year, but when the owner asks his car back you should give it back." Whether or not we report unauthorized content is always a matter of how we feel about it personally. You may feel that what I consider fair use is actually infringing, and vice versa. I'm not asking you to agree with me, but if you accuse me of advocating theft, you better do your homework. If you say it's alright to offer or use someones work because it's our right as customer to use it once created, you are advocating theft. You are defending it by pulling the fair use policy completely out of context over and over. Fair policy is certainly something with a bit of room to move around in, but it's not an open invitation to apply it to any use of IP. It's your possibility to use anything you can get your hands on, not your right. (Why do I feel I am repeating Chosen here?) If I run that red light, get a ticket, go to court to fight the ticket and lose, it doesn't mean it was my right to run the light the entire time until the judge ruled so. I don't have an issue with copyright, but I do have an issue with people who don't accept it in its entirety, i.e. including the limitations and exceptions. Fair use is part of copyright, and if you don't like it, all you can do is pray that SOPA, PIPA and ACTA pass ASAP and fix it for you. You don't have an issue with your version of copyright, which includes theft. hmmm. I think I'm pretty much done with this. Trying to make some reasonable response only to be caught in a childish argument is not how I like to spend my day. Link to comment Share on other sites More sharing options...
Kwakkelde Kwak Posted March 6, 2012 Share Posted March 6, 2012 Again, as far as I know, the object you see rezzed on a sim is a completely different object than the one in the owners inventory. What you describe can be done when you know the inventory UUID. If I see someone offers my animation for free, I can get my own copy of that stolen thing, get the UUID and send that to LL. That UUID is linked to the inventory server. Since you can't alter animations, that's very easy, deleting one is deleting them all. An object is a more complicated thing. If I were to steal your house and I rezzed it on my land, renamed it and made sure I used your textures, not new ones..... What exactly can LL delete? The "texture on a rezzed item or the sculpt map shaping a rezzed item" point is interesting though, since they do link to the inventory server I think. And again..I fully agree it should be made easier to get stolen or reproduced or copied goods removed, completely apart from the legal minimums aspect. Link to comment Share on other sites More sharing options...
Chosen Few Posted March 6, 2012 Share Posted March 6, 2012 Masami Kuramoto wrote: Printing is an automatic process, a format conversion, which has nothing to do with creative expression. Remodeling on the other hand is a creative, artistic process. The means by which a copy is produced are irrelevant. The law makes no distinction between a copy produced by hand and one produced by machine. A copy is a copy is a copy, no matter how it was made. The courts have long upheld that simply remaking another artist's work is NOT a creative process, no matter how much skill may be required. Under the law, "creativity" requires a degree of originality. On a side note, just so you know, printing can absolutely be a creative process. It isn't always, but it certainly can be. My mother is an award winning professional photographer. At least 50% of her creative process is on the printing side of things. No two of her prints are alike, even if two or more come from the same source image. It's a funny story, actually. It all started out because once upon a time she didn't know how to calibrate her monitor to match her printer. So, what she would print would look different from what she saw on screen. She'd then spend hours, printing and re-printing, making subtle adjustments, until the printed image looked the way she wanted. Fast forward a few years, and these days, she 'plays the printer like an instrument', if you will. The 'music' of the printer, in this regard, has become a whole art form unto itself for her. Masami Kuramoto wrote: Depending on the level of inaccuracy, it can qualify as a derivative work. And derivative works can constitute fair use. What exactly do you think is to be gained here by just repeating ourselves over and over and over again? Once again, a derivative work COULD be used fairly or unfairly, just as an exact duplicate COULD be used fairly or unfairly. The mere fact that something is a derivative does not mean its usage is somehow automatically fair. The fairness or unfairness depends how the work is used, and why. Masami Kuramoto wrote: Irrelevant. Mona Lisa with a moustache, Marilyn Monroe's face with bright colors. Everyone recognizes the similarities, everyone agrees that the works are derivative rather than mere copies. By just digging your heals in, and blindly disagreeing with everything I say, you've actually managed to agree with me. That's really funny. I said the legal test is whether a reasonable person would see the similarity, and you replied that that's irrelevent because a reasonable person would see the similarity. Gotta laugh at that one. Derivation is a form of copying, by definition, Masami. You seem to think a derivative is somehow not a copy, as if copying and derivation are wholly separate concepts. They're not. A derivative includes copied elements, mixed with original elements. In order to distribute a derivative work, you must first obtain permission to use the copied parts. Otherwise, you must omit them before you distribute. Now that I've said that, you're no doubt going to beat the 'fair use' drum again. And again, I'm going to have to remind you that the usage of derivatives is not automatically fair, any more than the use of exact duplicates is automatically fair. For about the millionth time now, whether or not usage is fair depends on the usage itself. How the work is being used, and for what purpose, are what make the difference. Masami Kuramoto wrote: Derivative works can constitute fair use. You seem extremely confused on this point, so let me try to take it as slowly as possible. There are a few key concepts you must understand: 1. "Use" is an action. Humans perform this action; works do not. 2. A work cannot "constitute" its own use. The work is just an item, a thing. It's not capable of performing actions 3. In this context, the work is merely the tool that the human uses in the performance of the action. 4. Under some circumstances, the use of a work will be considered fair. Under other circumstances, the use of that exact same work, will NOT be considered fair. Number 4 applies equally to derivatives and to exact duplicates. The use, the action, is what is fair or unfair. Perhaps it would help if we use an analogous example, other than artworks, for a moment, to illustrate this concept of how two different usages of one item can be fair or unfair, legal or illegal. Let's go with a hammer. If I take a hammer, and use it to drive a nail into a wall in my house, that's a perfectly fair and legal use of that hammer. It's my hammer, my nail, my wall, and I can do as I please with all three. However, if I take that same hammer, sneak up behind you, and brain you with it, that would not be a fair and legal use of that hammer. Hitting you in the head would be illegal, and I should rightly go to jail for having done it. Both actions in that example were performed using the same hammer. Yet one act was legal, and the other illegal. If the hammer itself were to constitute its own fair use, as your logic would suggest, then there wouldn't be any difference between nailing my wall and cracking your skull. But there IS a difference. Clearly, the hammer itself isn't the issue. It's the action performed with it that matters. With that in mind, let's bring it back to copyright. Let's go with something along the lines of your "Mona Lisa with a mustache" example. The Mona Lisa is way too old to be anyone's intellectual property, though, so let's pick something more modern. Let's go with Spider-Man with a mustache. Say I take my shiny new "Spider-Man with a Mustache" picture that I just made, and I begin publicly distributing copies of it. You really think wouldn't be illegal? Marvel would sue me six ways from Sunday, and they'd win, because I had no right to distribute those copies of their intellectual property. The fact that I inserted the mustache wouldn't change that. But now say I take that same image of Spider-Man with a mustache, and put it in some context that makes fun of Spider-Man somehow, or maybe just makes fun of mustaches in general. I MIGHT be able to distribute that. That MIGHT be considered fair use, as a parody. It also might not. It would depend on the full set of circumstances. Masami Kuramoto wrote: That doesn't mean that the original author loses the rights to his work. In fact fair use requires someone else's copyrighted work. Quite obviously, by definition, a derivative requires source material, or it wouldn't be a derivative. But that in itself says nothing about whether any particular usage of a derivative is fair or unfair. Once again, the nature of the usage itself must be examined, not just the outward appearance of the work. When a derivative is made, the original author maintains not only the rights to his or her own work, but also to all elements of that work that were incorporated into the derivative. In the case of Spidey with the mustache, Marvel would own the Spider-Man component, and I'd own the mustache component. If I could find a way to use the Spider-Man component fairly, then the use of that component would be legal. If I couldn't, then it would remain illegal. Masami Kuramoto wrote: It always comes down to free speech issues because copyright is, by its very nature, a restriction of speech. Any information you disseminate, regardless of originality, is speech. The fair use doctrine is nothing more than an admission that some forms of reproductive speech are either too insignificant or too important to be resctricted by copyright. Too insignificant so that they don't interfere with the original author's interests, or too important so that the author's interests take a backseat. I'm glad to see you do understand at least this much. Your understanding of how this relates to everything else we've been talking about has been missing, however. Masami Kuramoto wrote: But ripping a model from a videogame (or copying it by hand), uploading it to SL, and then using it to create some machinima that transforms the original work into something else by giving it a new meaning, expressing criticism, or just plain poking fun at it, is fair use, period. No, it MIGHT be fair use. It also might not be. You can't just make a blanket statement that it's always OK. There are many factors that must be considered before that determination can be made. Masami Kuramoto wrote: But actually that is besides the point. Because our discussion is not really about whether fair use of ripped models is possible or not. It is about vigilantism and my refusal to participate in it. It's been about both, right from the start. You initially said you don't want to participate fully in notifying authors when you spot possible infringement, which is fine. You certainly don't have to. The argument began not because of your desired level of participation, but because of your stated reason. You said you believed that if an author chooses not to put his or her work in SL, then anyone else who wants to just take it without the author's permission should be free to do so, in order to "fill the void". As the discussion progressed, you expressed several times that in your view the general public is somehow entitled to the author's works, whether he or she wants the public to have them or not. Eventually, one of the ways you tried to defend that stance was by mention of the Fair Use Doctrine. And here we are. Now that your arguments have been dismantled many times, you appear to be trying to distance yourself from them. Masami Kuramoto wrote: If uploading equals distribution (which is what you said earlier), then there is no way to use the service legally (except for one's own original recordings), because commercial music never comes with distribution rights. Music does not tend to come with general distribution rights, no. But in the case of using iCloud to store what you've purchased from iTunes, it's all kosher. When artists and record companies choose to put their works in the iTunes store, they grant Apple license to do certain things with the works. Part of that license includes allowing customers to store the music on iCloud. Masami Kuramoto wrote: If uploading equals distribution, then even music from iTunes cannot be uploaded. See above. Masami Kuramoto wrote: Maybe you were just wrong about the upload=distribute part. MAYBE I'm really sitting in a padded room somewhere, imagining all of this. MAYBE you don't exist. MAYBE computers don't exist. MAYBE I just think I'm typing right now. Assuming I'm actually here, and you're actually here, and the world as we know it is in fact real, then I can assure you I know what I'm talking about. Under some circumstances, uploading a work to third party server is OK. Under other circumstances, it's not. When it comes to uploading ripped or otherwise copied game content to SL, that's NOT OK. Masami Kuramoto wrote: Chosen Few wrote: It was, and still is, an ongoing patent dispute. There are patent disputes between Apple and Samsung, but the case about rounded corners isn't one. Way to quote out of context, in order to make it sound like you've got something to correct, when in fact, you're merely repeating what I really said. Must I quote myself? Here's the passage, as it reads in full: "It was, and still is, an ongoing patent dispute. However, it does have additional elements to it that are somewhat unique to German law. I don't pretend to know much about the laws of Germany, since I don't live there, and have never done business there, but I do know they have an Industrial Design Act in place, which serves to protect the outward appearance of products. If my understanding is correct, industrial designs protections under German law exist in addition to the kinds of patent, trademark, and copyright protections we have here in the US." Quite obviously, the "additional elements" and the "industrial design protections" I was referring in the sentences you oh-so-conveniently snipped out WERE in regard to the rounded corners, the rectangular shape, etc. Masami Kuramoto wrote: But then of course, the whole reason why we are still talking about it at all is because you just can't concede that rounded corners on a tablet computer are now considered intellectual property, turning Samsung's tablet into a rip-off product in spite of totally different hardware and even a different form factor. Before I answer this one, I have to ask, are you really that unable to keep your sources straight, or do you just think the readership is stupid enough not to remember who said what? Once again, I must remind you, the entire record of this conversation is right here for all to read. Look back over that record, and it's plain to see that it was the author of the article you linked, not I, who was up in arms about the rounded corners thing. I never suggested any judgment about it, one way or the other. Here's exactly what I said on the subject: "Apple was asked to submit possible design changes for certain Samsung products that Apple alleges infringe on some of its patents. As was to be expected, Apple's suggestions essentially were that the Samsung products should be as different looking as possible from the Apple ones, which among other things, meant avoiding rectangular shapes with rounded corners. The notion that that somehow means Apple believes it owns rectangles and rounded corners is simply commentary from the author, nothing more. To my knowledge, Apple has never tried to patent the rectangle." Show me where in that passage, or in anything else I've written here, did I draw a single conclusion about the validity or invalidity of Apple's claim. I said absolutely nothing along those lines, ever. Masami Kuramoto wrote: A 3D model is not a pictorial reproduction. And the architect's copyright to the model is fully applicable. Once again, if you can find a single point of law that prohibits the sculpting or digital modeling of an already built buidling, go ahead and post it, and I'll happily recant what I've said on the subject. Masami Kuramoto wrote: Your quote was incomplete. You left out the parts that proved you wrong, and you added things that are not written down anywhere, because you made them up on the fly. Show me the parts I left out that prove me wrong. I dare you. I double dog dare you. Masami Kuramoto wrote: Logical fallacy 101: Discredit the source. Are you saying you believe those Tech Dirt articles actually ARE works of responsible journalism? Must I repeat they're highly opinionated, and totally lacking in references to source material? Masami Kuramoto wrote: Fair use. Google's use of the buildings is transformative and does not harm the markets of the originals. Just like Google's use of thumbnail pictures in their image search service. Wow, that was easy. That's an interesting take on it. Let's go with that, for a moment. You say the use is fair because the virtual representation of a building inside the Google Earth simulation cannot harm the market for the real building in real life. Tell me then, how does the very same kind of virtual representation of the very same building inside SL, or in a video game, or in a TV show, not qualify as the same type of fair use? Masami Kuramoto wrote: Yes, according to your own interpretation of copyright. According to my interpretation, it could be fair use, but we will never find out because the IP owners didn't care. The IP owners simply have no say in such a matter. When a building exists in public view, it can be represented in artistic media. Why is that so hard for you to grasp? It's simply amazing how reversed your thinking is. In cases where the IP owners absolutely DO call the shots, like opting not to put their content in SL, you imply that their wishes shouldn't matter. But in cases where they do NOT have a say, you imply that their wishes do bear relevance. Incredible. Masami Kuramoto wrote: EA's lawyers didn't see the helicopter issue coming either. Nor did Samsung's lawyers expect rounded corners to become a problem. Intellectual property is a minefield. I can promise you, if an architect were to have a problem with my having modeled a building for use in a game or virtual world or TV show, and he tried to sue me over it, the case would be thrown out. It's absolutely legal. Masami Kuramoto wrote: 17 USC §102(a)(8). LOL!!!!! Have you actually read what you just cited? All it says is "architectural works". Literally, that's all it says. Let me guess. You just pulled copied & pasted fancy looking numbers and letters, straight out of the Wikipedia article, right? Sorry, but you're going to have to try a little harder. Want the full breakdown, so you can at least understand what those numbers and letters mean? Title 17 of US Code is the copyright law. Section 102 of Title 17 is named "Subject matter of copyright: In general". As the name suggest, it defines what types of subject matter are covered by copyright, in VERY general sense. Paragraph A of Section 102 lists eight categories for the general subject matter to fit into. Item 8 of Paragraph A is "architectural works" The item itself does not say anything whatsoever about what protections exist for it, what the limitations on those protections are, etc. It merely states that architectural works are to be included under copyright law. The actual protections and limitations are written elsewhere in the title. Once again, please show me where it says creating a digital model, or even a physical sculpture, of an already built, publicly viewable, building is prohibited. Masami Kuramoto wrote: It depends on whether fair use provisions apply or not. Pictorial reproduction of buildings in public spaces is generally considered fair use, but you cannot conclude that 3D models automatically qualify as well. These issues need to be determined by courts on a case-by-case basis, and as long as that hasn't happened, we are in unchartered territory. If it makes you feel better to call it "uncharted territory" than to just admit you don't fully understand what you're talking about, I'm content to leave it at that. Masami Kuramoto wrote: So what? The other guy who came in a Darth Vader costume wasn't arrested either. First of all, they don't' arrest people for copyright infringement. It's a civil matter, not a criminal matter. (At least at present, anyway. As I mentioned earlier, there is an ongoing effort among some in Washington to change this.) Second, the guy in the Darth Vader costume likely bought it from a costume shop, in which case it's probably a licensed copy. Third, if unauthorized copies of the costume were to be distributed, the creator/distributor would be committing copyright/trademark infringement. Fourth, Darth Vader makes for a really bad example. As we already discussed, LucsArts is very unpredictable and hard to follow in their IP policies. Had you picked a Star Trek character, or a Marvel character or something, it would be easier to talk about, since those organizations tend to be very consistent. Masami Kuramoto wrote: That doesn't mean you can model a Darth Vader avatar and sell it in SL. These are totally separate things. Wait a minute. Did you just say selling Darth Vader in SL should NOT be allowed? But LucasArts doesn't have a presence in SL. Shouldn't somebody "fill the void"? Isn't the public entitled to have that Darth Vader avatar, whether LucasArts wants them to have it or not? Are you finally admitting you were wrong about all that in the first place? Masami Kuramoto wrote: No. I'm saying that the model itself is copyrighted, regardless of its rendered presentation. You're losing the sequence of the conversation here. We were talking about the pictorial representation of a building, and whether or not a rendered image of a model of the building qualifies for that definition. You've shifted into talking about the copyright on the model itself. We can talk about that, too, if you want. But using that as a response in this particular context does not make sense. Masami Kuramoto wrote: A 3D model is not publicly viewable scenery. A photo is. Now you're really making no sense. Are you just tired, or are you losing your powers of reasoning altogether? Neither a model nor a photo is publicly viewable scenery. The real world is publicly viewable scenery. The photo and the model could both be representations of the scenery, but they are not the scenery itself. Masami Kuramoto wrote: I've been talking about that difference all the time. The one who can't wrap their head around it is you. Again, you're making no sense. It really sounds as if you've just devolved into "Say the opposite of WHATEVER Chosen says, no matter what" mode. That's sad. Once again, I'll remind you that the full record of this conversation is right here for all to see. What you've been saying, ever since the architecture subject was raised, is that creating a model of the publicly viewable exterior building, after the building has already been built, is the tantamount to copying the architect's original design model (assuming such a model exists, of course, which isn't always the case). I've been saying it's not the same thing, under the law. Are you now acknowledging yes, there is in fact a difference? Masami Kuramoto wrote: Wrong. Copyright protection fully applies, fair use notwithstanding. Fair use does not eliminate copyright. Your misinterpretations, once again, are simply astonishing. I never said copyright protection did not apply. I said there are different protections for before and after the building is put on public display. Masami Kuramoto wrote: Except for the helicopters which are not original. Yes. That's precisely why I made a point of using the word "original". Masami Kuramoto wrote: And that's where the ambiguity is. EA creating a derivative work of Bell's aircraft design for commercial purposes is fair use. Joe Sixpack creating a Darth Vader avatar for SL roleplay is theft. No, EA is trying to claim that it is fair use. That doesn't mean it is. I disagree with them, as I've said several times now. If they're successful, this could be a landmark case, with wide reaching implications. Masami Kuramoto wrote: Almost missed this one between the walls of text... Chosen Few wrote: The ensuing argument began when one person suggested that if permission is not given, then people should just take the work anyway, to "fill the void". I'm sure you'd agree that that suggestion is wrong. Chosen, I'm kindly asking you not to misrepresent my statements, especially when addressing others. I think I don't need to tell you that this is poor style and tantamount to trolling. Please save yourself the embarrassment of walking down that path. Are you really now trying to say you did not say what you said in your very first post? Really? Wow. Here, let me remind you. You said: "If there is a legal way to obtain that mesh/character in SL (e.g. from the original creator or a merchant with a distribution license), I will report the incident to them. Otherwise I will ignore it, because the IP owner obviously has no interest in the platform, and the infringer is merely filling the void." So, according to your own words, if an IP owner has no interest in putting his or works in SL, then anyone else who goes against the IP owner's wishes by uploading them without the owner's permission is "merely filling the void". That's what you said. You then went on to defend that point by stating that while you agree the owner deserves to be compensated, you do not agree that he or she has the right to keep the work out of other people's hands. You likened that to "censorship or a means to control popular culture." Later, you specifically said: "If the author chooses not to enforce his rights (by filing DMCA takedown notices), then anyone and everyone is free to put those works in SL. Not only is this not wrong, it's also perfectly legal." From there, you went on to imply that consumer rights somehow outweigh creator's rights, when it comes to determining on what platforms a work should be made available. Any of this ringing a bell? 1 Link to comment Share on other sites More sharing options...
Baloo Uriza Posted March 6, 2012 Share Posted March 6, 2012 Innula Zenovka wrote: Masami Kuramoto wrote: The definition of fair use is blurred. Surely whether or not something is or isn't fair use is a factual question, to be decided by a court by applying the relevant legal tests for the jurisdiction in question. You or I might have our opinions about whether something's "fair use" or not, but they're not particularly relevant. Therein lies the reason why I don't reccommend business models that rely on restrictive licensing unless they're willing to consider a copyright attorney as part of the required overhead. You're pretty much setting yourself up for failure otherwise. Link to comment Share on other sites More sharing options...
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