posted
Karl- If the creativity were the central issue, why do they allow TV & cable stations to cut & edit, when they are not even directly in control?
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posted
Probably because that is a specialized case where even if there aren't hard rules for altering content, there are at least strong de facto practices, and I'd be very surprised if the rights given a TV station are of the "free to change as you see fit" variety. Additionally, there is a distinct economic benefit for the original holder of the copyright and a legally binding document to govern it.
I do not see the logic in arguing that because a copyright holder is willing to allow one licensed party to make changes in a relatively controlled way they have no right to expect unlicensed parties to refrain from marketing altered versions of their property.
If OSC allows a "Reader's Digest" version of Ender's Game to be published, does that give me the right to create and distribute my own version? Or if he allows an edited version for audiobook, does that give me the right to create my own audio version and sell it? (Or even trade it for copies of the original audiobook?)
Also, the issue may not be "creativity" per se, but creative control. I.E. it may not be so much a fear of changing the pristine original as in closely guarding the rights to make changes to the original, especially since any ensuing works will still bear the name of the original creator.
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posted
TV stations pay for the right to alter movies for their needs, and there may be vetting requirements or somesuch.
Its always possible for a person to license their work for the creation of derivatives, but hardly ever required. If it were fair use for one person, though, it would be fair use for everyone (in a sufficiently similar situation making sufficiently similar changes, for some legally determined value of similarly).
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posted
I'm sure there are guidelines for the TV stations, which is why I mentioned that they may not directly be in control. I'm not suggesting because they allow it in one situation that it should be ok across the board.
However, it makes me wonder why the studios don't work with these companies, give them guidelines, and ask for a small percentage of sales (say 10-15%). That way they get their artistic say, more profit (the original DVD plus the editing commission), and more market. Seems like there's a potential for win-win here. Of course, they may have offered all this and the small companies refused to play ball, but somehow I doubt that, with these movie & music associations track records.
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posted
Well, I strongly suspect that in this particular case the market is too small for the studios to care. And quite frankly, that's their right. You can't walk into McDonald's and demand they start providing you with veggie burgers. Actually, you can, but unless the market demand for McVeggie-Macs is enough for the company to actually make money on them, they are pretty much justified in ignoring you. I strongly suspect the market for watered down films is much smaller than all the notoriety this case is getting would indicate.
Additionally, studios simply may not want to provide Bowdlerized versions of their product for general sale. Why should they have to?
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quote:Additionally, studios simply may not want to provide Bowdlerized versions of their product for general sale. Why should they have to?
Why should songwriters have to provide a compulsory license for covers? Because we consider the use socially beneficial enough to carve out that exception from the copyright holder's monopoly.
The two situations are different, of course, but it's an example of the wishes of the holder not being as important as another policy consideration.
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posted
Dags, it's early and I haven't slept much, and while your link looks very informational, I just can't read it right now. Would you mind just giving me the gist of it?
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posted
If you have time, I'll second that. The link just raises more questions for me. What's a "phonorecord" as opposed to a "sound recording"? What exactly are the specific circumstances, and what policy consideration is being held as more important in this case.
I'll take it on faith that you have some sort of point here, but I have no idea what it is and thus cannot relate it to the issue at hand. Posts: 6394 | Registered: Dec 1999
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posted
I started reading it and was startled to find myself staring at the bookshelf having lost 10 minutes...
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The notes on that page may be helpful... I Am Not A Lawyer, but here's my rough'n'dirty translation of the main bit.
quote:When phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner,
When anybody has legally made and sold a (nondramatic) musical recording in the United States...
quote: any other person, including those who make phonorecords or digital phonorecord deliveries, may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work.
...any other person can get a license to make their own recordings of the work, by following the rules in this section.
quote:A person may obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use, including by means of a digital phonorecord delivery.
In order to get such a license, the new recording must be made primarily for sale to private citizens.
quote:A person may not obtain a compulsory license for use of the work in the making of phonorecords duplicating a sound recording fixed by another, unless: (i) such sound recording was fixed lawfully; and (ii) the making of the phonorecords was authorized by the owner of copyright in the sound recording or, if the sound recording was fixed before February 15, 1972, by any person who fixed the sound recording pursuant to an express license from the owner of the copyright in the musical work or pursuant to a valid compulsory license for use of such work in a sound recording.
Furthermore, one can get such a license only if the original recording was made legally itself.
quote:(2) A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work,
This form of license gives you the ability to change the style, interpretation, tempo, and so on, but you can't warp the song beyond recognition.
quote:and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.
Also, your license to make your own recording of the work does not give your work the full set of protections given to derivative works, unless the person who made the original recordings grants those to you. (Which is to say, I think, that if somebody covers your cover, they pay royalties to original artist, but not to you.)
From there it gets into the details of getting such a license and paying royalties and so on.
Edited to note that "phonorecords" covers all physical sound recordings, not just those on vinyl. From section 101:
quote:“Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.
quote:'ll take it on faith that you have some sort of point here, but I have no idea what it is and thus cannot relate it to the issue at hand.
The point is unrelated to the details of this program. Originally, I was merely pointing out that the government compels copyright holders of a particular kind of work to allow others to license that work in a particular way, regardless of the wants of the holder.
So it doesn't answer the question "Why should they have to?" but it does point out that copyright law, as it exists now, does compel people to provide a particular type of use of a particular type of work. The reason is grounded in public policy to allow beneficial use of copyrighted work that would not occur if left solely to the market.
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quote: but the arrangement shall not change the basic melody or fundamental character of the work,
You can't change the melody, but it doesn't say anything specifically about lyrics. Does anyone know if there's been a case where someone covered a song but changed the lyrics to omit profanity? Is that legal under this provision?
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posted
No idea. We covered this in less than a single lecture, so all I know is what's in the statute and some underlying policy justifications.
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posted
Can you elucidate the underlying policy issues specifically? (I mean more specifically than "beneficial use of copyrighted work . . .")
I'm curious to know what the reasoning is regarding song recordings so I can see if/how it applies to film.
Something I don't understand from the linked statute is what the restrictions are. I'm pretty sure I can't just go out and make a recording of the newest pop song and sell copies to everyone. (Or can I?)
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posted
Karl: yes, you can just go out and make a recording of your own performance of the newest pop song and sell copies to everyone, provided that you file all the necessary paperwork and give the writer a large cut of the royalties. There have been several cases of a cover of a song coming out shortly after the original version and selling better.
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quote:Something I don't understand from the linked statute is what the restrictions are. I'm pretty sure I can't just go out and make a recording of the newest pop song and sell copies to everyone. (Or can I?)
The license becomes available only after a phonorecord has been distributed to the public in the United States with the authority of the copyright owner (§115(a)(1));
The license is only available to someone whose primary intent is to distribute phonorecords to the public for private use (§115(a)(1));
A licensee cannot duplicate a sound recording embodying the musical work without the authorization of the copyright owner of the sound recording (§115(a)(1));
A musical work may be rearranged only "to the extent necessary to conform it to the style or manner of the interpretation of the performance involved," without "chang[ing] the basic melody or fundamental character of the work," (§115(a)(2));
A licensee must still serve a Notice of Intention to obtain a compulsory license on the copyright owner or, in the case where the public records of the Copyright Office do not identify the copyright owner and include an address, the licensee must file the Notice of Intention with the Copyright Office (§115(b)(1));
A licensee must serve the notice on the copyright owner "before or within thirty days after making, and before distributing any phonorecords of the work." Otherwise, the licensee loses the opportunity to make and distribute phonorecords pursuant to the compulsory license (§115(b)(1));
A copyright owner is entitled to receive copyright royalty fees only on those phonorecords made (3) and distributed (4) after the copyright owner is identified in the registration or other public records of the Copyright Office (§115(c)(1)); (5)
The rate payable for each phonorecord made and distributed is adjusted by an independent body which, prior to 1993, was the Copyright Royalty Tribunal. (6)
A compulsory license may be terminated for failure to pay monthly royalties if a user fails to make payment within 30 days of the receipt of a written notice from the copyright owner advising the user of the default (§115(c)(6)).
quote:Can you elucidate the underlying policy issues specifically?
The constitutional justification for copyright is purely economic - provide incentive for people to produce works that will benefit the public by giving the producer a temporary monopoly to exploit those works.
Note that the underlying goal is to have works available to the public.
Certain uses of copyrighted works are so beneficial that they override the monopoly. Some of these uses are called "fair use." It's why you can record a TV program for later viewing and why the educators can copy works in ways that would land us in jail.
There are other compulsory uses (uses the copyright holder can't stop), some compensated, some not compensated. For example, certain stores and public places of business can play music over certain types of equipment, something normally banned as a public performance. The copyright holder of the composition (score and lyrics) gets compensated; the holder of the actual recording's copyright does not. (PLEASE, to anyone reading this, there are lots of restrictions. Don't play a record in public based on this and think you're safe from copyright infringement liability.)
If I had to sum up the policy argument for such licenses, it would be "The market cannot efficiently link up copyright holders and people who desire to make this kind of public use of these kinds of works, because the potential gains to the copyright holder do not justify the expense they would incur in handling thousands of minor transactions. We consider such uses to be beneficial because ambiance is one of the good uses of music and the value of the copyright in such works will not be diminished by allowing such use."
A similar sentence (which I'm not advocating at this point - I'm very much undecided on this issue) about Bowdlerizing could be, "The market cannot efficiently link up copyright holders and people who desire to view movies w/out profanity, because the potential gains to the copyright holder do not justify the expense they would incur in handling thousands of minor transactions. We consider such uses to be beneficial because allowing people who wish to avoid indecency/profanity who wish to do so is a desirable public policy goal and the value of the copyright in such works will not be diminished by allowing such use."
BTW, where does the term "Bowdlerizing" come from?
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quote:BTW, where does the term "Bowdlerizing" come from?
Thomas Bowdler, who published the popular Family Shakespeare, which removed all passages considered unsuitable for family reading. (He also did the same for the Bible, among other works.)
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quote:A similar sentence (which I'm not advocating at this point - I'm very much undecided on this issue) about Bowdlerizing could be, "The market cannot efficiently link up copyright holders and people who desire to view movies w/out profanity, because the potential gains to the copyright holder do not justify the expense they would incur in handling thousands of minor transactions. We consider such uses to be beneficial because allowing people who wish to avoid indecency/profanity who wish to do so is a desirable public policy goal and the value of the copyright in such works will not be diminished by allowing such use."
But since the Bowdlerizers lost the case, is it safe to assume that at least one court feels the reasoning upheld regarding music does not apply in this case? From what you wrote above, it seems at least possible that a higher court could reason differently (not that they will, but that they could).
I know you said you were undecided. What points on the studio's side makes you hesitant to side with the defendants? (or vice versa).
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quote:But since the Bowdlerizers lost the case, is it safe to assume that at least one court feels the reasoning upheld regarding music does not apply in this case?
This wouldn't be a judicial decision, but a legislative one. The entire sentence is a balancing of competing policy concerns, one best suited to lawmakers.
Section 115 and the permission to play music in some places of business are laws written by Congress, and the policy justifications I composed for them justify the law. Neither is a legal argument compelling that result.
quote:From what you wrote above, it seems at least possible that a higher court could reason differently (not that they will, but that they could).
I don't think the court could come to that conclusion. The only mechanism I foresee would be if the court held this to be fair use, which is possible because fair use is incredibly ill-defined. But I don't consider it likely.
quote:I know you said you were undecided.
I'm not undecided on the outcome of the case. Under present law, it seems pretty clear to me.
I'm undecided as to whether people who pay for a copy of a movie should have the right to alter and resell the movie to remove indecency/profanity. But if we decide they should have that right, it would be a congressional judgment.
The points on the defendant's side from a policy standpoint:
1.) No loss of profit to the studio. 2.) The editing of movies to remove profanity is the type of change that fulfills an existing policy goal of the U.S. government. 3.) It tends to increase use of the work, not decrease it, in a way that wouldn't happen without the compulsory license.
In favor of the movie studios is a general default position against forcing people to make their property available to others on the government's terms.
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There's dicta that a certain amount of fair use is constitutionally required, but the Court hasn't to my knowledge used this. All the fair use it's created has been what might be termed "statutory common law," that is, common-law-like judicial determinations based on the four statutorily defined fair use factors.
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posted
I wonder what a constitutional fair-use capability would look like. After all, the constitution doesn't even mention the notion, only saying the Congress gets to set copyrights for a limited time. I wouldn't mind if the fair-use statute were enhanced somewhat, to better lay out some principles for determining minimal fair-use rights.
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posted
The easy one is free speech - you can't stop people from quoting a book based on copyright if doing so infringes on free speech.
The others relate to the constitutional purpose to "promote the Progress of Science and useful Arts." I doubt it will ever come to that, because the fair use factors are so flexible.
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Yeah, I nearly mentioned that obviously any restriction violating other rights mentioned in the constitution would be prohibited.
I suppose if someone could demonstrate a given part of copyright had an extraordinarily detrimental effect on the 'Progress of Science and the useful Arts' one might have a case, but the courts are leary of making such determinations (perhaps too leary, at times), and certainly have had plenty of chances to do so recently that they have not taken up.
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Although I suspect anyone who would be interested has already done so, it's worth checking out the Slashdot articles on the decision. Good way to see the gamut of intellectual property libertarianism.
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You forgot to give the standard slashdot warning: click no links unless you are familiar with the site it goes to (or have already been exposed to the horrors that await those clicking unknown links) . Actually, all that's died down a lot recently.
Slashdot certainly does have a range of opinions. A few of them are even informed.
Posts: 15770 | Registered: Dec 2001
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posted
I have a couple more hypotheticals, or middle cases, that I was wondering if people could express opinions on.
On page 1 I asked if it would be alright (legalling and/or morally) for someone to provide scripted edit points allowing an individual to edit movies at home.
What about someone who, for a fee, came into the home and did the editing themselves? I buy the DVD, I want to watch a sanitized version, but I don't want to go to the effort/don't have the know how to edit it myself.
And if that's alright (legally/morally), what if instead of them coming to my home, I sent my DVD to them for editing?
I guess I'm wondering if there's a difference in offering a DVD editing service and marketing edited DVDs.
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Senoj, See the exchange between Sergeant and Shmuel on the previous page. ClearPlay is a company that provides a service somewhat like you describe. Rather than actually doctoring and re-copying the DVD, though, you purchase from them a specialized DVD player and download (??) masks from the company for the movies you want to watch. The DVD player follows the mask, editing out the "bad parts". Apparently this particular procedure has been upheld by Congress as legal.
The difference, though, is that the process does not create an edited copy of the original, but edits on the fly. You have to have the original at all times to watch the movie. There is no form of distribution of a "derivative work".
posted
To answer your specifics, though, my opinion is that you can do what you want with your own private copy in your own home for your own personal use. I don't see any problem with someone providing instructions for editing your own personal copy.
I think coming into someone's home and doing the editing is arguably creating a derivative work (and for profit, if you charge a fee), which I believe is illegal, but Dag will correct me if I'm wrong, I'm sure.
Doing the editing elsewhere and sending it back to me is the same
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quote:Originally posted by KarlEd: The difference, though, is that the process does not create an edited copy of the original, but edits on the fly. You have to have the original at all times to watch the movie. There is no form of distribution of a "derivative work".
Hmm, just because the "copy" created by the ClearPlay process doesn't exist on physical media, but is continuously rendered and then disposed of, does that make it less a copy? I mean, is the derivative work what exists when you view the movie, or is the derivative work what exists on the specific physical medium. Is art an object or an experience?
Anyway, I was thinking of a hypothetical situation where you licensed a movie for public viewing, but showed it using the ClearPlay system. Would that be considered distribution of a derivative work?
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quote:Originally posted by KarlEd: The difference, though, is that the process does not create an edited copy of the original, but edits on the fly. You have to have the original at all times to watch the movie. There is no form of distribution of a "derivative work".
Hmm, just because the "copy" created by the ClearPlay process doesn't exist on physical media, but is continuously rendered and then disposed of, does that make it less a copy?
There's not even anything to dispose of. As I understand it, ClearPlay is essentially a preprogrammed way to mute, black out, or fast-forward. You could do all this yourself with your remote controls if you knew when to and if you had good enough timing.
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quote:Hmm, just because the "copy" created by the ClearPlay process doesn't exist on physical media, but is continuously rendered and then disposed of, does that make it less a copy?
There's not even anything to dispose of. As I understand it, ClearPlay is essentially a preprogrammed way to mute, black out, or fast-forward. You could do all this yourself with your remote controls if you knew when to and if you had good enough timing.
Right, but the information exists when it is rendered to the screen, in some internal buffer, which is subsequently flushed as new bits come in. So it does create a derived physical product, just one that is continuously destroyed.
My thoughts, however, ran a bit more toward the esoteric question of what does it mean to make a copy. Is each viewing of a piece of art a copy, because you experience the art anew? Or does making a copy require storage on a physical medium (other than the memory nodes of your brain)? Hence my (or, rather, the) question of whether art is an object or an experience.
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posted
Ephemeral copies are copies, but there's nothing wrong with producing an ephemeral copy like this yourself and using it for personal use.
Also, the rules are slightly different as regards ephemeral copies (that is, many ephemeral copies are fair use where a more permanent one wouldn't be).
Copies have to be physical in some sense. Electrical impulses in computer circuitry count. Actually, the display of the movie would likely not constitute an ephemeral copy, as only a tiny part of it would be 'copied' at any given time. However, having a movie in RAM does count. I think there's a certain element of 'extractability' in the determination of being a copy, but I could be wrong.
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