The Intellectual Property Law Server

Welcome, Guest. Please Login or Register.
May 23rd, 2019, 1:46pm

Forums Forums Help Help Search Search Members Members Calendar Calendar Login Login Register Register
   Intellectual Property Forums
  
  
Novelty
(Moderators: Forum Admin, JimIvey, JSonnabend)
   Are Old Post Cards Copyrighted?
« Previous topic | Next topic »
Pages: 1 2 3 4  Reply Reply Send Topic Send Topic Print Print
   Author  Topic: Are Old Post Cards Copyrighted?  (Read 6349 times)
JimIvey
Moderator
Senior Member
*****




  jamesdivey  
WWW

Posts: 2584
Re: Are Old Post Cards Copyrighted?
« Reply #10 on: Oct 26th, 2006, 7:46pm »
Quote Quote Modify Modify

You might find the topic of shrink-wrap licenses interesting.  An adjunct to that is the "click-wrap" license.  I honestly can't remember the last time I bought a DVD and looked carefully at the wrapping, but you might look there for some analog to what you see in software -- a license that you consent to by piercing.  I imagine there'd be some similar contract language on the DVD saying that, if you don't agree to the license, you should immediately return the DVD for a full refund.  Then, start thinking of adhesion contracts and to what extent they're enforceable.  All that 1L stuff you learned may just come in handy.
 
And, whether you believe it or not, threatening letters from particularly aggressive parties are often not based on the law but rather are no more than a bullying tactic to get you to do what they want without having to resort to litigation.  I was listening to some legal expect talk about cease and desist letters on the smoking gun dot com (don't know the URL and don't feel like looking it up -- try google) and his opinion was that 80% or so where blatantly outside the law -- I believe the wording he used was "absolutely ludicrous and laughable".  Is it illegal to bluff?  Apparently not.
 
At the very least, Disney and the RIAA and MPAA and friends are extremely aggressive in asserting rights they may or may not have.  They seem to be happy to sell you a DVD for $15 but want $90+ from a rental store.  There are legal ways to accomplish that and, despite the fact that I haven't reviewed a DVD package in detail recently, it wouldn't surprise me to learn that the terms of the license are spelled out somewhere in the packaging if not just the FBI "we'll burn your children at the stake" warning.  I mean, Jeez, just look at the instant death penalty for putting a pre-release movie on bittorrent!  Yeah, that's a bad thing to spoil a movie made with huge investment prior to its release, but immedate execution for mere suspecting without any appeals?!  Jeez!  Okay, it's not that bad, but you'd fare better if you just robbed somebody at gunpoint.  It begs the question as to our society's priorities.
 
Regards.
IP Logged

--
James D. Ivey
Law Offices of James D. Ivey
http://www.iveylaw.com
Isaac
Senior Member
****




   


Posts: 3472
Re: Are Old Post Cards Copyrighted?
« Reply #11 on: Oct 26th, 2006, 8:40pm »
Quote Quote Modify Modify

on Oct 26th, 2006, 5:59pm, JimIvey wrote:

Under terms generally associated with videos and such, it's for the private use of the purchaser or any assigns (subsequent owners).  So, you can't just buy the Little Mermaid DVD and invite people over for $1 each to watcht it --

 
I just looked at an old Little Mermaid VCR tape.  There was lingo on the body of the casette that suggested that I had only a license rather than ownership of a copy of a copyrighted work.   Same language on a Sleeping Beauty tape.  OTOH, a Scooby-Doo tape just had a generic FBI warning.
 
Disney doesn't need to explicitly reserve any rights to keep you from doing a public performance of a movie because public performance is one of the copyright holder's excluse rights.   Even owning a copy doesn't give you the right to do make a public performance even if you don't charge anything just as owning a copy of a video does not give you the right to make and distribute even free copies.    
 
On the other hand the copyright holder does have to take special steps limit your right to rent out a video since rental is carved out as an exception to the copyright holders exclusive rights (for works other than music and software).   I haven't paid enough attention to what's on the text of DVDs to know how clean the industry is in general on protecting their rights, but apparently Disney at least makes the effort.
 
« Last Edit: Oct 26th, 2006, 8:43pm by Isaac » IP Logged

Isaac
chuckles
Newbie
*




   


Posts: 16
Re: Are Old Post Cards Copyrighted?
« Reply #12 on: Oct 26th, 2006, 8:41pm »
Quote Quote Modify Modify

on Oct 26th, 2006, 7:46pm, JimIvey wrote:

 
And, whether you believe it or not, threatening letters from particularly aggressive parties are often not based on the law but rather are no more than a bullying tactic to get you to do what they want without having to resort to litigation.  I was listening to some legal expect talk about cease and desist letters on the smoking gun dot com (don't know the URL and don't feel like looking it up -- try google) and his opinion was that 80% or so where blatantly outside the law -- I believe the wording he used was "absolutely ludicrous and laughable".  Is it illegal to bluff?  Apparently not.
 
 
Regards.

 
The torts of abuse of process and malicious prosecution should be extended to cover these instances, if they're not already. I would also think that a lawyer who BSes to gain advantage for their client risks being disbarred, unless everyone is BSing and the lawyers serving on professional regulatory boards have no particular interest in setting the honesty standard that high.  
 
Thanks for your interesting comments.  
IP Logged
chuckles
Newbie
*




   


Posts: 16
Re: Are Old Post Cards Copyrighted?
« Reply #13 on: Oct 26th, 2006, 9:24pm »
Quote Quote Modify Modify

on Oct 26th, 2006, 8:40pm, Isaac wrote:

 
 
Disney doesn't need to explicitly reserve any rights to keep you from doing a public performance of a movie because public performance is one of the copyright holder's excluse rights.   Even owning a copy doesn't give you the right to do make a public performance even if you don't charge anything just as owning a copy of a video does not give you the right to make and distribute even free copies.    
 
 

 
What is the threshold for a public performance?  
IP Logged
JimIvey
Moderator
Senior Member
*****




  jamesdivey  
WWW

Posts: 2584
Re: Are Old Post Cards Copyrighted?
« Reply #14 on: Oct 26th, 2006, 11:29pm »
Quote Quote Modify Modify

on Oct 26th, 2006, 8:41pm, chuckles wrote:
The torts of abuse of process and malicious prosecution should be extended to cover these instances, if they're not already.

That's one of the things you don't cover in law school and that academia and the courts tend to ignore -- there are very real and significant  transaction costs in every litigation.  Courts seem to write their opinions as if people just appeared before the court magically and with little or no effort -- once you're there, your arguments must be perfect and appear to the courts to be without cost to you.  Some will say that's the way it ought to be -- and maybe that's true, but it ingores reality entirely.
 
Consider the new rule for expedited examination -- just tell the USPTO about all possible prior art, outline your search strategy, take every conceivable interpretation of your claims, match each conceivable intrepretation against each an every piece of prior art individually and each and every possible combination of references and explain why each and every claim is allowable, explain which of the conceivable interpretations you will limit yourself to such that all other intrepretations are excluded from any subsequent litigation, admit any known or unknown acts of inequitable conduct, predict the winners of the next 10 world series, the next 10 Super Bowls, the next 10 NBA championships, and the next 15 Stanley Cups, and then give us a lien on your first-borne son in case you make a mistake.  
 
My rough estimate is about $10k of work to comply with the expedited examination requirements -- it's actually considerably easier to file the old-fashioned Petition to Make Special.  But more and more, the PTO is trying to push more and more of the burden onto applicants.  That's arguably better business for me, but it puts the little guy at a distinct disadvantage.
 
So, sure, sue for abuse of process.  The most you could reasonably hope for is some sort of sanctions, such as those under Rule 11 of the FRCP.  But expect any sanctions to be appealed and delayed as much as possible.  And, if I'm not mistaken (and I frequently am), the money from sanctions don't go to your client.  I think it goes to the court's Christmas party fund.  And, they'll try to argue for good-faith extension of the law.  
 
Who do you suppose is favored by a legal system that requires each party to bear their own costs of litigation and assumes those costs to be zero and/or not the business of the law?  It would seem, on its face, to favor those for whom the costs of litigation are least significant -- i.e., the bigger litigant.  When Disney sends C&D letters to a preschool for playing a single video once, who do you suppose has the advantage in such a legal system?
 
Now, I'm not necessarily a little-guy-should-win-everything guy, but our system seems fairly clearly stacked in favor of the big guys.  I don't think it's intentional, but simply out of being a purist in legal reasoning -- not wanting to get involved in the costs of litigation.
 
Regards.
IP Logged

--
James D. Ivey
Law Offices of James D. Ivey
http://www.iveylaw.com
Pages: 1 2 3 4  Reply Reply Send Topic Send Topic Print Print

« Previous topic | Next topic »
Powered by YaBB 1 Gold - SP 1.3.2!
Forum software copyright © 2000-2004 Yet another Bulletin Board