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» Hatrack River Writers Workshop » Forums » Open Discussions About Writing » Some hypothetical questions

   
Author Topic: Some hypothetical questions
rcmann
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May have been asked before on this board. I dunno.

If a person with a photographic memory reads an e-book, have they committed copyright infringement by making an illegal copy? They have, after all, take data from electronic storage and transferred it into another form of electronic storage. From their photographic memory, they would then have the capability to make unlimited copies.

Related question, if the aforementioned book is locked down with DRM, have they violated the DMCA since they bypassed the DRM? If so, are they liable to prosecution under federal law?

In the event that the answers to #1 and #2 are yes, would the publisher have the legal right to demand that they book be wiped from storage? It is, after all, their property.

If the answers to all of the above are yes, is there any theoretical limit to the methods which a court could apply in order to force compliance?

I wish I could say that this was merely the ramblings of a paranoid lunatic. But I have been reading too many news stories lately. Our world is insane. I'm a bit nervous.

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Pyre Dynasty
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It's the Merchant of Venice all over again.
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extrinsic
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Fair-use and first-sale doctrines cover the areas of your concerns. These are two of several traditional intellectual property safety valves that protect consumers of said properties from restrictive uses and balance property distribution commerce rights and consumer possession rights.

The fair-use doctrine permits limited or partial copying and distribution under particular circumstances without use release permissions, essentially based on four bounding corners: purpose and character of the use, nature of the copied work, amount and substantiality of the use, and effect on the copied work. Limitations to the fair-use doctrine involve dimunition of value of the copied work or portion thereof.

The first-sale doctrine gives a consumer unfettered ownership rights to a legitimately acquired work. Essentially, this doctrine allows for the distribution of an owned, legitimate copy at the discretion of a consumer, including copying for personal consumption but not distribution of the copied work or use in some cases, like software use, after ownership has been transferred to another entity. However, a faithful copy may be transferred to another entity if the original copy has been destroyed.

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rcmann
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Unfortunately, the first sale doctrine is under attack.

http://www.artinfo.com/news/story/839250/could-this-supreme-court-case-stop-you-from-selling-art-bought

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Owasm
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In my mind, the issue of the eidetic memory isn't one of intake, but of output. If the reader does nothing with what is stored in their cranium, then I can't see any kind of a violation. However, if that book was written down or dictated, then there would be a case.

A purely speculative response, mind you.

Such a thought might make an interesting plot point for a story.

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rcmann
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One more question.

What if the person with the photographic memory, liking the story, decides to tell it? What if they decide to turn story teller and recite the tale around a campfire or a pot bellied stove some winter evening? is that legally equivalent to a podcast?

Would it make a difference if someone tossed a quarter in their hat?

Once again, I wish I were the one who was coming up with these anal retentive types of ludicrous issues. But if you take a look a the supreme court cases recently, and the bills in front of congress over the last few years, my little thought problems sound pretty reasonable. May the One above us all have pity.

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extrinsic
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Intellectual property law is in a constant state of flux because property owners want supreme control and they have the resources to impose their will on consumers.

The U.S. Constitution protects consumer rights as well as commercial rights from abuses. The Supreme Court is the ultimate arbiter of fair practices. This is a republic, whose primary distinction from other representative government types is protection of minorities and dissenters from the abuses of a majority, be that majority a per capita numerical superiority or a fiscal superiority.

The Wiley v Kirtsaeng case the Supreme Court will decide. Both sides have merit and standing. The issue on point I believe is whether Kirtsaeng acted as a subsidiary distributor or as an end-use consumer. If as a distributor, did he conduct due dilligence? If as a consumer, is he entitled to U.S. protections for an imported property? The underlying case is not about first-sale rights. It's about fair commerce practices. Regardless, Kirtsaeng abused his prerogatives.

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extrinsic
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quote:
Originally posted by rcmann:
One more question.

What if the person with the photographic memory, liking the story, decides to tell it? What if they decide to turn story teller and recite the tale around a campfire or a pot bellied stove some winter evening? is that legally equivalent to a podcast?

Would it make a difference if someone tossed a quarter in their hat?

Once again, I wish I were the one who was coming up with these anal retentive types of ludicrous issues. But if you take a look a the supreme court cases recently, and the bills in front of congress over the last few years, my little thought problems sound pretty reasonable. May the One above us all have pity.

A public performance of an intellectual property constitutes publication, thus a potential copyright infringement. However, the ephemeral nature of an oral story performance around a campfire if a noncommercial nature doesn't. This is a fair-use issue. Besides, ostensibly, there are no deep pockets sitting around a campfire. In the end, that's an underlying concern.

If the performance takes place in front of an auditorium audience for an admission fee, then a use permission may be required. Technically, any publication to an audience is a copyright matter, but there are limits, like reading a bedtime story to a group of children or poetry to a class or a novel to a camp group at no charge.

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Robert Nowall
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How would you repossess?
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rcmann
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quote:
Originally posted by extrinsic:
The Wiley v Kirtsaeng case the Supreme Court will decide. Both sides have merit and standing. The issue on point I believe is whether Kirtsaeng acted as a subsidiary distributor or as an end-use consumer. If as a distributor, did he conduct due dilligence? If as a consumer, is he entitled to U.S. protections for an imported property? The underlying case is not about first-sale rights. It's about fair commerce practices. Regardless, Kirtsaeng abused his prerogatives.

I respectfully disagree. I see it as a case of Wiley attempting to enforce a monopoly. In this case, the young man was acting as a re-seller of used property, no different in any functional way than someone who decides to buy up maple syrup in Vermont and re-sell it in Florida. He took the economic risk of purchasing the items, and he won the gamble by making a profit since he re-sold the items at a substantially lower price than Wiley. Which, to me, means that Wiley was price gouging. And they got mad when their price gouging monopoly was infringed upon.

Note that this case case has nothing whatsoever to do with intellectual property. Those books are physical items. The issue is, does a person have the right to sell a physical item that they bought with their own money. Copyright is being dragged in because it offers a flimsy excuse for Wiley to impose their intention - economic domination.

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extrinsic
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I'm not generally on the side of publishers when it comes to adversarial or predatory business practices. I typically side with an underdog. However, Kirtsaeng infringed on Wiley's exclusive rights to sell or import their licensed material in the U.S.

Did Kirtsaeng purchase the textbooks used or new wholesale? Did he pay customs tariffs or did he illegally evade them by posing as a private seller? The books were manufactured in Thailand. Did Kirtsaeng's relatives lawfully divert the products from Thai businesses? Criminal acts are not before the Court.

The question isn't even a copyright or first-sale issue. Wiley has copyrights; that's unquestionable. The question is whether Kirtsaeng abided due dilligence in his business activities. If he didn't and it appears he didn't through at least skirting importation restrictions, a mens rea that could speak to an illicit business activity, he infringed on Wiley's rights. Did Kirtsaeng's relatives lawfully acquire the textbooks in a manner consistent with the manufacturer's intents and arrangements with Wiley? I believe not.

However, the case as briefed by both sides focuses on copyright issues not on criminal acts or criminal or civil business infringements. The Court cannot consider arguments not placed before it. Neither Wiley nor Kirtsaeng has standing to bring criminal acts not contemplated before the Court. No matter the Court's decision, this case will not solidify precedent in any way, shape, or form. The issue will come up again. Perhaps next time addressing the real issues.

[ November 09, 2012, 04:25 PM: Message edited by: extrinsic ]

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redux
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Every time I sing Bon Jovi's Bad Medicine in the shower a rep from one of RIAA's royalty collection
agencies shows up to collect the fee. It's super embarrassing!

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extrinsic
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Singing in a shower before a paying audience constitutes publication. Same with recording the performance and distributing the recording. I'd say either might be embarrassing as well.
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Brendan
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I think you may get away with that, Redux. I mean, can anyone actually tell that it is Bad Medicine? [Razz]

From a science fiction angle, maybe you could claim that the photographic memory has so many other linked memories, that it is an artwork in and of itself. The distinction between plagiarism and style mimicry are somewhat blurred here.

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redux
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Well, technically, copyright infringement doesn't have to involve monetary gain. Copyright infringement is simply reproducing the work without the owner's permission.

That said, the burden of proof is on the accuser. If questioned, the person with the eidetic memory should simply reply "I don't recall." [Smile]

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rcmann
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quote:
Originally posted by redux:
That said, the burden of proof is on the accuser.

Really?
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redux
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quote:
Originally posted by rcmann:
quote:
Originally posted by redux:
That said, the burden of proof is on the accuser.

Really?
Yes, really.

Burden of proof is shifted to the defendant only under certain circumstances. For instance, if the plaintiff gets over the first hurdle and proves that copyright infringement indeed occurred, the defendant can claim fair use but then the burden shifts to the defense to prove it.

Edited to add:
So, how can the prosecution (if we're talking the criminal side of the copyright law) possibly prove that the person with the eidetic memory holds a complete copy in their brain?

If we're talking speculative fiction here, a brain scanner. But, that would require the defendant be subpoenaed in order to get their brain scanned so that the prosecution can collect their physical evidence. And no, the Fifth Amendment does not apply to the collection of physical evidence, it only applies to testimony.

[ November 09, 2012, 11:39 PM: Message edited by: redux ]

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extrinsic
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The Fourth Amendment protects against unlawful personal property seizures. In order to search a person's brain there must be a properly constituted judicial probable cause warrant to intrude upon a person and a person's privacy. If brain scans become possible, a search warrant would have to stipulate the limitations of the scan. No fishing expeditions. This is similar to wiretaps.
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MattLeo
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With respect to your first questions, you don't have to go that far to raise some of the issues you are getting at. In order to read a book, dead-tree or ebook, you have to see the text on the page which entails forming an optical image on the retina. This is not, however, considered to be making a copy, any more than a savant's eidetic memory. A similar situation occurs when a blind reader scans a book with a text-to-speech system. The book is copied into the device's memory for transformation into speech. It's not considered an infringement on copyright to make an ephemeral copy necessary for use.

Public performances on the other hand are also ephemeral, but have long been established as infringing on the author's copyright. Yet making a backup copy of an ebook per se is not considered an infringement either and that clearly is making a fixed copy.

So the essential point in what counts as "copying" doesn't seem to be rendering the work in fixed form -- as intuition would suggest -- but rather rendering it in a form with commercial value for which the copyright holder has not already been compensated. The copy of the book in the savant's brain has no commercial value and therefore memorization is probably not copying for the purpose of copyright law.

The sci-fi question of whether a person's thoughts and memories are protected doesn't hinge on whether they are one's property (which is doubtful as a general case), but on the 4th amendment protections to the individual person's self, and in the ninth amendment catch-all. The threat of extracting thoughts is so chilling to individual liberty that even obtaining the capability to do so is probably an unconstitutional intrusion on individual liberty. This is the same "substantive due process" argument that prevents government interference in individual's use of contraception.

The prospects for mind reading remain so scientifically vague that there's no forecasting when it might be feasible, the ability to interfere with brain activity needed to lie appears to be approaching feasibility. Transcranial magnetic stimulation in certain brain regions might well make it impossible to lie, or impossible to tell the truth.

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wetwilly
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At any rate, a company trying to destroy the illegal copy in your brain is a gold-mine for a sarcastic, dark-humor type of story. Kind of has a Philip K. Dick ring to it.
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Grumpy old guy
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I'm with the Red Queen, personally: Off with his head!

I have a partial eidetic memory but, I find over time, irrelevant 'knowledge' dissipates. The other two questions are, why would you want to recite the story anyway, and what about remembering a movie or a song, isn't that also a breach?

Phil.

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Pyre Dynasty
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I've been reading.

Personally I'd say that if we get to a point where the legal definition of a human brain nears the legal definition of a computer we will have more serious issues to deal with than copyright.

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MattLeo
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quote:
Originally posted by Grumpy old guy:
The other two questions are, why would you want to recite the story anyway...

Fun fact, the English word "pundit" comes from the Hindi "pandit", which refers to someone who has memorized the whole Hindu scripture and can recite it from heart. The pandit is the person you go to get scriptural guidance. As for why you'd want to recite, you can recite as performance (as Mark Twain and Charles Dickens often did). The obvious modern application would be recording audiobooks.

quote:
Originally posted by Grumpy old guy:
... and what about remembering a movie or a song, isn't that also a breach?

I'd argue no. Because there is no commercial value to the "copy" you are pulling out of your memory it's not a matter for copyright law. In any case modern brain science considers most people's memories to be more a kind of performance than a copy. Individuals with unusual cognitive styles may be an exception to this rule (e.g. Temple Grandin).
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extrinsic
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quote:
Originally posted by wetwilly:
At any rate, a company trying to destroy the illegal copy in your brain is a gold-mine for a sarcastic, dark-humor type of story. Kind of has a Philip K. Dick ring to it.

That is a remarkably credibly, logically, and emotionally timely and relevant observation. With the ongoing increasingly contentious intellectual property rights debate and the increasingly pervasive intrusions of digital technology and the increasingly rabid invasions of privacy in the public arena, now is a good time for such a narrative.

Go for it. In a year or two if I haven't seen something along these lines emerge, I will. I might anyway, frankly, because I've been developing a similar inspiration, and I doubt any two or more similar inspirations will be alike. They can't be; they come from different minds.

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Grumpy old guy
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With developments in nano-technology, don't be too surprised at what could be inside a human head in the next few years. They've already developed a crude, working bionic eye, here in Melbourne. Given the pace of miniaturisation, you might end up with eyes that work like HUD's to display information within the next ten years, or less.

For a Luddite, that's frightening.

Phil.

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Brendan
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quote:
The sci-fi question of whether a person's thoughts and memories are protected doesn't hinge on whether they are one's property (which is doubtful as a general case), but on the 4th amendment protections to the individual person's self, and in the ninth amendment catch-all.
That may be the case in USA. But other countries (including many western countries) don't have such amendment protections, or even a bill of rights. But these same countries do have copyright protection due to international copyright laws being enacted. So the argument here is of interest still.
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extrinsic
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The European Convention on Human Rights includes privacy protections that are emerging in U.K. laws. The U.K. adopted the convention in the Human Rights Act of 1998.
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rcmann
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Legalistic theory is a fine thing. It's relevance to the real world is a matter for ongoing debate.

RE: The issue of innocent until proven guilty. Even if one lives in a country where legal theory would maintain such a position, such as the USA, in practical terms it frequently works out to the opposite.

Case in point, regulatory agencies and their un-legislated authority to issue imperial decrees that hold the force of law. To anyone who has operated a business, or had as a client a business, who was subjected to the whims of some regulatory agent that was in a bad mood... the idea of innocent until proven guilty would be good for a belly laugh if it were not so potentially tragic.

Any federal, and most state agencies, are inherently capable of driving any business owner into involuntary bankrupcty long before he manages to fight his way through the court system and prove his innocence.

Another case in point. Guantanamo. Also the Patriot Act. With habeas corpus a thing of the nostalgic past, and the concept of requiring warrants prior to search and seizure merely an amusing myth, the protection that an American citizen can count on from their constitution is doubtful.

In pragmatic terms, if you get arrested you have the option of sitting in jail indefinitely - or taking out a mortgage on your home to provide bail money so that you can have the temporary privilege of walking around town. But you do not have the privilege of leaving town. You are still under 'area arrest' as it were. And unless you are among the wealthy, the odds of being able to prove your innocence are not good. Your actual guilt is irrelevant.

Recall that poor guy at the Olympics who found a bomb, and was crucified for it? He was pure as the driven snow, but since the feds couldn't find anyone else, they pinned it on him. Turns out he didn't do it, but that only came to light after he was destroyed.

After the anthrax scare, the FBI found a suspect they wanted. They spent untold amounts of money, and a ridiculous amount of time, tearing the man's home, property, and records apart looking for a trace of evidence. They found nothing. But... in this case... *because*he*was*rich* he was able to sue them and ended up walking away with several million dollars in damages.

In America, you are innocent until proven poor.

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extrinsic
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Straying into contentious political propoganda territory inelegantly construed for writing discussions.
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rcmann
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You are quite correct. I offer humble and sincere apologies to anyone offended by my thoughtless remarks. It will not happen again.
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enigmaticuser
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I look at it a little different. Except for God given laws, all laws are simply "house rules." Why should people tolerate other laws that are completely insane? I mean, if a law existed that said you were not allowed to observse something in public without the proper license, I think rather than trying to comply, we should be saying "no that's unreasonable."

A person has a right to the contents of their own memory. It is the record of your life. If I remember a song or a story, and then tell it. I am not reproducing the song, I am reproducing a moment of my life. No law can tell me I don't have a right to enjoy the contents of my own mind.

As far as the intent of laws, they should generally be to respect each others rights. The focus is not the law but the person whose rights you may violate.

In which case, the best law giver said 'Do unto others as you would have them do unto you.' If you knowingly use your photographic memory for the purpose of taking what belongs to someone else, that's wrong. If you are simply enjoying a piece of your life into which someone else expressed their work, sorry, they need to get over it.

I mean, if that was the case couldn't any pretty lady say, "I don't approve of you having seen me? You must brain dump my mental image."
"Ok."
"You're still doing it!"
"I'm sorry, I'm trying not to remember the color of your hair and the satiny flow of--"
"Stop it!"

Seriously, if such ridiculuous laws come in force, it is not our job to comply but our duty to rebel.

Later on, I'm going to tell my son "I am your Father," in a Vaderian voice.

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