Explanations of Copyright variables
In the USA, the Copyright Act of 1976 governs all copyrights. The Copyright Act does not protect any ideas, procedures, process, systems, and methods of operations, concepts, principle or discovery regardless of how it is expressed. It is the expression that is protected by the Copyright Act. You cannot copyright titles, names, slogans, and short phrases, even if those have new ideas. You MAY, however, address certain of those under Trademark.
The life span of a copyrighted material is the author's life, plus 70 years [in most cases]. There are a few exceptions to this rule and they are: un-renewed copyrighted materials published pre-1964, materials published before 1978 without a copyrighted notice, and materials published by the US Government. However, reliance on this is subject to review, so if a question exists it is best to contact a specialist/attorney/lawyer in that area.
Copyright exists from the moment the work is essentially 'finalized' regardless if it is registered or not with the patent office. Registering increases your ability to proof the violations and increases your ability to recover damages.
Check these links:
http://gag.org/about/us_copyright.php
http://gag.org/about/ask_first.php
http://gag.org/about/links.php
http://www.unc.edu/~unclng/copyright-damages.htm
http://uscode.house.gov/title_17.htm - Title 17 United States Code
http://www.loc.gov/copyright/faq.html - FAQ concerning copyright
*begin quoted text - format changed, with additions*
U.S. Copyright Law
For advice and current information about US copyright law, please contact a qualified legal professional. [MEB added: Carefully research for yourself, what might apply and how it might apply to your particular situation.]
Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of *original works of authorship* including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
- a. To reproduce the copyrighted work in copies or phonorecords;
- b. To prepare derivative works based upon the copyrighted work;
- c. To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- d. To perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works; and
- e. To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.
It is illegal for anyone to violate any of the rights provided
by the Act to the owner of copyright.
These rights, however, are not unlimited in scope.
Sections 107 through 119 of the Copyright Act establish
limitations on these rights. In some cases, these limitations are
specified exemptions from copyright liability.
One major limitation is the doctrine of "fair use," which is given a statutory basis in section 107 of the Act.
In other instances, the limitation takes the form of a "compulsory license" under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions.
Common Questions answered: http://www.copyright.gov/help/faq/faq-general.html
"When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section "Copyright Registration."
Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many
choose to register their works because they wish to have the
facts of their copyright on the public record and have a
certificate of registration.
Registered works may be eligible for statutory damages and
attorney's fees in successful litigation.
Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section "Copyright Registration" and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works." - END
FACTORS WHICH COME UNDER CONSIDERATION
The below is NOT legal advise or a final statement concerning
materials which fall under copyright Law.
For a complete picture and actual legal advise, seek out a
qualified professional and/or attorney/lawyer.
A. COVER BANDS AND COPYRIGHTED MUSIC GENERALLY
The performance rights for most popular songs are held by ASCAP or BMI, and you can get a license for a fixed fee.
If one intends to publicly perform copyrighted music, check the place where the performance is to occur, as the business/place might have general licensing agreements from ASAP and/or BMI to cover the performance.
For any given piece of recorded music, you have separate copyrights for the particular recording [regardless of medium used] and the song [arrangement - musical score, wordings/lyrics, etc.].
If you copied the recording exactly, you would likely be infringing on the recording's copyright related to these methods of copyright protection.
As long as cover band is presenting an original performance,
they are free to copy another band's musical style as perfectly
as they can -- PROVIDED they have permission to perform or record
the music itself.
If they are precisely following another band's written arrangement,
(musical score) distinguished from trying to make their
performance sound as much as possible like another one, they also
need permission to use the arrangement.
VARIABLES
1. "mechanical license"
See: http://www.harryfox.com/public/songfile.jsp
Quoting from Harry Fox's web site:
" Under the United States Copyright Act, the right to use copyrighted, non-dramatic musical works in the making of phonorecords for distribution to the public for private use is the exclusive right of the copyright owner. However, the Act provides that once a copyright owner has recorded and distributed such a work to the U.S. public or permitted another to do so, a compulsory mechanical license is available to anyone else who wants to record and distribute the work in the U.S. upon the payment of license fees at the statutory "compulsory" rate as set forth in Section 115 of the Act. "
2. Trademark - brand recognition - duplication of band dress/presence; Tribute bands:
If the target band's clothes, etc., are so distinctive that they become identifying features [Example: KISS], another band that imitated them without permission could well be found to be infringing their "trade dress," [trademark law] just as a manufacturer of photographic film that packaged its products in a bright yellow box could be considered to be infringing Eastman Kodak's trade dress.
The trade "dress" is not an actual trademark, however, it serves a similar purpose, and is protected by the same laws.
EXAMPLE:
Using another band's name, such as for a "KISS Tribute Band," you would need permission.
REASON: You would be both implying that you have permission from KISS and are allowed to trading off the KISS's band recognition and goodwill.
Another example from the commercial world: Heinz - if one attempted to create an exact replica of their product packaging and then placed something like "Heinz Alternative" on the labeling, such may open question of brand dilution, and infringement. The trademark name Heinz has been used, which would require a distinct explanation/statement of no relationship or affiliation with Heinz, no false representation of being Heinz, nor any attempt to prove fitness for particular usage as Heinz. The exact packaging would likely prove to be an attempt to mislead/defraud potential users, and would likely infringe upon brand distinction and trademark, whereas the packaging itself may be held under copyrighted materials.
The concept of "confusion" in trademark law is somewhat
broader than a dictionary definition would suggest.
It covers uses which falsely give the impression that the
trademark owner has authorized the use of the name.
Without permission, either practice is likely illegal and is not allowed.
3. LAMPOONING and fair use:
Make fun of a song i.e. in parody, would likely to be fair use.
Whereas, using a song to make fun of something else i.e. in satire, would be less likely held under fair use.
EXAMPLE:
Weird Al Yankovic is an example of the careful performer. He walks the fine line between parody and satire, and infringement.
Any song or performance he creates or uses, is generally carefully checked for infringements. If it is to be potential infringement, he is known to contact the copyright/trademark owner for permission. If it is denied, the performance will not be created or the work used. Most copyright holders find it interesting that Weird Al intends to use their material and grant usage during his derivative works, though several have denied the usage.
B. PUBLIC DOMAIN AND WEB [INTERNET] MATERIALS
1. INTERNET RELATED
Many think that material posted upon web sites is automatically public domain and therefore falls outside copyright and trademark Laws. The answer is: NOT NECESSARILY TRUE.
Every web site [URL and pages] created holds its own individual copyrights to the presentation [web page, posting, or otherwise] and contents, and need NOT state such anywhere. The site/material owner may waiver or release applicable restrictions and Laws relating to their OWN applicable authority/control over THEIR OWN MATERIAL. They have no authority to waiver other's rights though, unless specifically granted that authority.
Only one group of entities is generally held as true public domain: the government and its publicly presented materials. Even then, one must be careful to observe whether material contained within the government publications may be held under private ownership.
When question may arise; it is best to reference the government document rather than the included work which might be under private ownership.
Beyond that, any materials found on any particular site, forum [individual posters hold intellectual property rights, copyright], or public presentation; MAY not be Lawfully there in the first place, or may be held under other patents, license, copyright, trademark, or other restrictions. Retrieving and/or using materials off the Internet does not relieve you of your responsibility to check for such restrictions. Nor does that grant you "blanket right and protection" to reproduce those materials for public viewing or use. Best practice is to link to such material, noting that the material may be held under copyright or other restrictions.
2. USING OTHER'S MATERIAL FOR PROFIT
Any time you or your business offer something for sale, you must follow every Law which might apply towards whatever you might offer. That includes importation/exportation, commerce activities, applicable taxes, copyright, trademark, licensing, fitness, and other implications or requirements. If any patent, trademark, or copyright might apply, you are liable for any infringement.
Even government materials MAY not be public property.
EXAMPLE [from http://www.archives.gov:
"Photographs in this collection were taken by photographers
working for the U.S. Government. Generally speaking, works
created by U.S. Government employees are not eligible for
copyright protection in the United States. However, they may be
under copyright in some foreign countries and privacy and
publicity rights may apply."
Note carefully what was said: use of the words "Generally" and "However". The reason is though presented by the government, and produced by parties "working for the U.S. Government", if an independent photographer took those pictures, even though under contract to the government; unless they signed over their rights to the picture they took as part of the contract, they may still may have copyright to the pictures. Whereas, if they were a paid employee of the government, then the government and the people would generally have right to the pictures/images.
So the cautionary included in the example was: they MAY be copyrighted, and/or, under other publicity and/or privacy rights under other nation's Laws.
- END EXAMPLE
You MAY have a defense for violations IF:
A. You purchased, for resale, material from another in good faith, under assumption of proper licensing allowance, compliance, and/or other agreements between the holder [original supplier] and the party from whom you purchased the material. That does not completely remove your potential liability though, as you must make effort to ensure the offering party [who ever supplied the material to you] has/had such authority and has complied with their responsibilities under Law.
- 1. This brings to light, the new Internet Auction sites.
- When buying materials under auction from a site such as ebay, you are generally liable for what you purchase, in addition to whom you bought it from. Attempting to claim ignorance of copyright violations, or other violations, such as those related to software, does not necessarily relieve you of your personal liability should some Law or right have been violated.
- If the material is distinctly below market value, it would indicate something was potentially amiss. There are activities concerning this style of auction being addressed by congress, courts, and upon the Internet. Every buyer must be extremely cautious relating to what they purchase, as that may bring them into unlawful activities.
B. You received deliberate false representation of your right to resell the material in some form. It is then your responsibility to prove that false representation if you intend to limit your liability.
C. TRANSLATIONS OF PUBLISHED BOOKS
In the United States, translations are considered derivative works. Copyright may adhere in a translation.
One cannot assume that one can freely translate a book or another's translation of a public domain work.
IF one is translating a work "word for word" then one must obtain the author's permission.
IF one is translating a work, not word for word, but via summary or opinion, then it becomes a separate work.
IF one is translating "public domain" works, then you MUST make sure it is actually in the public domain and not held under copyright or other restrictions. It remains a derivative work, though without copyright originator.
Outside the United States, there are moral issues and legal issues under consideration whenever altering a previous author's work.
An original translated work has its OWN copyright, covering the creative effort that went into the translation, independent of the creative effort that went into the production of the 'original', which may, or may not be protected by copyright at the time the translation was made.
The copyright status of the original has no bearing on the 'derivative work' copyright on the translation, other than, IF the original is protected by copyright, then to publish a 'translation of the translation' [to a different language using the translated work as basis], you must have permission of both copyright holders.
D. HISTORICAL DOCUMENTS AND BOOKS
IF the age can be established as being outside the copyright limits, the work MIGHT be considered as public domain. However, at some point there may have been a purchase and transfer of copyright, extending that copyright via publishing new books under the new owner's copyright.
EXAMPLE:
Bouvier's Law Dictionary First Edition may be public domain,
however, works that have used the public domain such as Bouvier's
Dictionary [like a web presentation], have their own copyright.
USING that new work [web material] directly would violate the
copyright of the web owner/publisher/creator, whereas, using the
original Book/Dictionary [thereby creating your own work] might
not be so.
EXAMPLES:
This site [peoplescounsel]: has several minor changes within the Sixth Edition Dictionary which would proof the original work on this site, should it be used without authority by others. Another, is the Senate Report 93-549 Summary images on this site, which contain specific keys/referencings in and on the images. These and other factors for consideration, such as they were presented in court actions [records] and to government agencies, making them distinct works under copyright to Maurice.
E. THIRD PARTY WORKS BASED UPON COPYRIGHTED MATERIALS
Determining the copyright extent, in a non-derivative manner.
Taking into consideration the previously presented issues first, a work or other which bases its existence upon work which is copyrighted, but in no fashion includes that material, is not a violation of the Law.
EXAMPLE:
Microsoft Windows is held under trademark, copyright, intellectual property, licensing, patent, and other legal restrictions.
However, if you produce original teaching materials to use the various products, noting the restrictions such as copyright, trademark and others; your work becomes your own copyrighted material as long as you note and respect Microsoft's rights and restrictions, and expose no coding which might violate intellectual property rights, trade secrets, patent, or other [such as reverse engineering].
F. SOFTWARE
Creation of original software has its own special rights, limitations, and restrictions.
See the above example of Microsoft, and carefully review all licensing, trademark, copyright, intellectual property, patent, and other applicable restrictions and Laws.
Some software may actually be public use or public domain. You can generally determine this by the inclusion of source code in the distribution, or by the inclusion of the author's public statement or licensing included on the site or software.
QUESTION - relating to software [such as a spreadsheet] created during employment.
What about software material that I created while employed merely for my own use; no one else ever used it and my employer did not request it?
Would this fall under "provided with or have access to" [within an employment agreement], or otherwise fall under copyright or other Laws?
ANSWER
When you are employed by a company you are generally held
under some form of written employment agreement.
Even if the agreement doesn't cover the software/spreadsheets you
created, the company might successfully claim that the
spreadsheets or software are "works made for hire" and belong to
the company for purposes of copyright law and trade secret
law.
The applicable laws would not necessarily swing upon whether there was even a contract involved. You were paid during your employment and used their equipment to create the software or spread sheet.
Moreover, it is possible that the software you created belongs to the company because of the employment contract.
Decisions would likely be based on copyright law, trade secret law, and the agreement only if necessary to establish whether you were an independent contractor, or otherwise could lay personal claim.
The considerations are: that you used paid company time, company equipment, and the business premises to create the software. Therefore, the business would generally have due claim to the software and copyright, and likely intellectual property right as well.
Here is what the law actually says:
17 U.S.C. 101
A work "made for hire" is -
(1) a work prepared by an employee within the scope of his or
her employment; or [a commissioned work in specific categories by
a non-employee].
17 U.S.C. 201(b)
In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
Offering Software on a web site
This method brings with it numerous aspects which could be held against you in a court of Law.
Commercial software
Maurice partook in a discussion relating to commercially available software [Microsoft products], which dealt with transfer of/train of ownership issues.
Here is the major parts of that discussion [microsoft.public.win98.gen_discussion - Shot in the dark], This party had admitted previously to obtaining pirated software from a torrent.:
Your questions delve into full legal qualifications, hence would be more
appropriate to a legal forum.
Try misc.legal.moderated
A short answer is thus:
You claim is *abandoned, discovered, etc.* keys/license, and your ability
to use such. Microsoft need make no statement in the EULA concerning Law
unless special aspects are applied. You are to know the Law. Microsoft
includes the EULA with its products. Its inclusion brings with it ALL
applicable Law. If your curious about what Laws apply then check the DOJ's
site relating to Microsoft's various prosecutions. Most Law has been
explained or addressed there.
The plain answer is keys MIGHT be usable [save for what you already
indicated]. However, your traipsing into the realm of copyright, trademark,
patent, commerce, and other aspects. Use of a key WITHOUT a lawful license
is illegal.
Your scenario of a thrown away computer means little.
If the business or individual is still claiming the computer under IRS
statutes [timed deductions], you would have to obtain the actual license/key
and authorization {see additional below} and many businesses do take LONG
deductions for massed purchases.
If, as was presented before in this group, the computer was salvaged from a
fire or otherwise, the license/key would be automatically transferred to the
Insurance Company, you would need to obtain salvage rights from the
Insurance Company.
If the licensing was purchased by a business, then it remains with that
business [an asset, which can be essentially valueless and may not even be
listed as such for tax purposes or sale], regardless whether the computer
was thrown away.
Keys issued to that business also follow under the business's control.
Only a lawful assignment of ownership to you can properly transfer
ownership. There is no "adverse possession" associated with this type of
property; *fair use* controls.
Unless you could prove beyond ALL doubt the license was obtained legally
through lawful ownership change, there is no way for you to proof the
license [or key] was abandoned or obtained legally. The old *abandonware
sites* found this out. If it was once held under Copyright or Patent then
considerable years must elapse before it becomes public domain, should the
owner object.
Hence any use places the user under potential fraud statutes as well as
potential violations of copyright, patent, and other law. Also note that a
license is for ONE [1] computer, unless multiple licenses are bought; or the
license may be for a specific reason [think service tech, program testing,
etc.]; use otherwise is a violation of that license..
For review see Titles of United States Code:
15 - Commerce and Trade;
17 - Copyrights [and Trademarks];
18 - Crimes and Criminal Procedure;
22 - Foreign Relations and Intercourse;
28 - Judiciary and Judicial Procedure;
31 - Money and Finance;
35 - Patents;
42 - The Public Health and Welfare
You must also include various Acts of Congress into consideration
{Electronic Communications Acts, Millennium Copyright Act, various Public
Law, etc.}.
Why ALL of these MUST be considered is vastly beyond the scope of this
group or perhaps even misc.legal.moderated. Find newsgroups for Commerce,
Patent, Copyright, etc., or search on the Law sites.
You also would need to check State and local laws as well [including of
course International Laws if other nations are involved]. Think additionally
relating to Laws regarding property and contracts....
Generally the Law likes to see some minimal lawful transfer of ownership,
such as $1.00 changing hands for whatever is transferred, or direct
communications. Falling back to your garbage computer, perhaps the actual
owner used the software on a new system, or intends to at sometime. Doesn't
matter, because you did not obtain the right to the license without them
transferring it to you.. California is a good place to check for this type
of activity/prosecutions.
Just one more thing: should you have actually purchased a lawful license
[CDROM or otherwise], but lost your key, you likely could use another key
for an UNSUPPORTED operating system [Microsoft has suggested along those
lines]. However, knowing a key does NOT grant license or any legal right to
the software.
Personally, I have questioned the purchase of a lawful license and key, the
destruction {from/for whatever reason} of the original product and
subsequent use of another copy with that license and key. There appears to a
vagueness regarding this legal aspect. [Why? Because the copy might come
from someone else's licensed version, and that license precludes
installation on more than one computer.]
As a cautionary note:
You may run across duplicated copies on the net for various OSs, even
offered for sale.
Unless it is a lawful sale [complete lawful transfer of ownership, e.g.,
one copy with license, no other copies {unless authorized}, party authorized
to sell] you CAN be prosecuted. Purchase from a non-authorized source places
you in a tenuous position; it matters little that you may have THOUGHT that
ebay/auction/site purchase was cheap. You accept [part of] the
responsibility and personal liability.
Mere use of licensable software [such as from a torrent] without a license
is in direct violation of Law, there would be no excuse.
Beyond this, I will not go into here.. Ignorance of Law is no excuse, as
the courts WILL advise you, and under which you might be prosecuted.
Typical of these types of discussions, where the original questioner is attempting to qualify unlawfully obtained software, the discussion continued.
| One reason why I think the law does not address the issues I raised is
| because (1) there would have to be a law written specifically for
| Microsoft in such a way as to enshrine their EULA's as "law", and (2)
| license agreements (such as MS's EULA's) are contracts, and would
| theoretically be covered under contract law.
|
| I am not raising any issues pertaining to trademark or copyright law
| in my example, so we need not delve down those avenues.
Here your wrong, in fact, your comments reflect that you have essentially
ZERO understanding of the applicable issues, legal ramifications, and what
comes necessarily into consideration. Nothing needs created for Microsoft.
Microsoft enjoys the protection of ALL applicable Laws, including the
Patriot Act and the UCC. Best read those before you make further comments.
This is typical of parties with no knowledge of Law or refuse to understand
its depth. You're attempt to separate issues and deal with them in a form
which is conducive to your point of view, while ignoring key controlling
elements. Moreover, when directed to the applicable issues, you counter in
the same form of ignorance, apparently thinking the attempt to proceed in
this fashion would be acceptable with the courts, or otherwise qualify your
activities.
No, it will not, your issues will be tossed with the garbage should you
find yourself in a court.
You were directed to proper forums so you could at least discuss these
issues with licensed attorneys, and others versed in Law. You instead
proceed here with the same lack of understanding and misconceptions,
attempting to push issues upon individuals who could, at best, only give you
their impressions of Law. I would imagine I may be the only one here with
any sort of legal background. If any others monitor here, they would likely
not waste their time with this. Your argument hold no sway and is pure waste
of time..
You have a set mind frame, based upon nothing but apparent ignorance. You
present the same issues that can be found in every alt.binaries, torrent,
discussions related to pirated software, and the like; which discuss or
participate in unlawful activities. When advised of such and provided with
the Law, the same ridiculous arguments are rolled out that were used in the
BBS and FIDO days [early electronic public forums].
|
| Basically, as you install most any MS product, a EULA screen will be
| presented to you, in which you must click "I agree" before the product
| will install itself. MS relies on that to effectively bind you to an
| agreement with them. It is that agreement that presumably would have
| to specify or make reference to (or define) what constitutes "license
| ownership". So again I ask if MS even mentions the concepts of
| license abandonment or that a "chain of ownership" must exist for a
| license.
Read the EULA for once.
| > You claim is *abandoned, discovered, etc.* keys/license, and
| > your ability to use such. Microsoft need make no statement
| > in the EULA concerning Law unless special aspects are
| > applied. You are to know the Law.
|
| I believe there is legal precedent that discarded property can be
| freely obtained and "owned" by others without the express permission
| (or even knowledge) of the previous owner. A license is a form of
| property.
Partially Wrong. discarded property remains with the party whom discarded
such until such time as control is lost/relinquished. Court cases discussing
your issues [large tangible items] and such things as identity theft from
waste have already dealt with these issues. When the property is transfer to
the garbage, the transfer is to the waste company [via the container or
bag]. If stored temporarily upon the property of the original owner, joint
ownership [primary to you the owner] and trespass/property issues are also
in play. When placed upon the curb in public access areas, the property
control remains with the waste company and with the original owner as
secondary, and the municipality/city/village/whatever as third party. You as
*dumpster diver* or *trash hog* are not in the picture save in the most
tenuous position. There are cases presently in the courts dealing with
these very issues.
Mind you, [one of] the parties MUST take issue with an encroachment [you
taking the waste], which allows such things as those unlimited pick-up days
when couches and the like find their way to the street or public access and
may potentially be taken.
If interested [which I see your not] review the rulings related to
paparazzi and other theft/id/other, pertaining to trash/garbage/waste.
|
| I make the analogy with a music CD, a movie DVD, or a book. For those
| items, you are never buying the rights of ownership to the music, the
| movie, or the book. You are buying the rights to view/enjoy/use the
| content in a limited, personal manner. If you throw the CD, the DVD,
| or the book away in a dumpster at the curbside, I can come along and
| retrieve them and the license to view/use them passes to me. If you
| did not intend for the license to pass to anyone else, then you could
| / should destroy the CD/DVD/book.
Wrong argument. Those items fall in another category. Computers, but in
particular software, are held differently.
|
| > Use of a key WITHOUT a lawful license is illegal.
|
| I contend that just as in the case with a CD/DVD/book, the license for
| software is intangible. The product-key is tangible, and essentially
| represents, enumerates, or identifies the license. Within the
| constraints of a retail or system-builder product, any single given
| product-key represents a single, unique license.
As such, the keys were issued under contractual agreement with the party to
whom they were given and to NO-ONE ELSE. Contain within that agreement is
the manner in which they will be used. Other use constitutes breach of
contract and potential fraud.
|
| Until the product-key is used, the license is not exercised. If the
| product-key is used to perform an installation of the product on ONE
| computer, then the license becomes utilized. If the computer is
| damaged, disassembled, or otherwise becomes defunct, then the
| license becomes separable from the hardware and can be used on another
| system. The only caveat is that the product-key not be used to
| install the product on more than one functioning system
| simultaneously, because that would require more than one license.
It matters not, that the keys may not have been used by the authorized
agent. What matters is the form under and in which the contract was drawn
and issued.
For example let's say this occurs:
Microsoft enters into a contractual agreement with a fictitious Xwidgets
Inc. to issue seven hundred keys and licenses for VISTA at a reduced price
for use within the corporation. Xwidgets was previously under a similar
agreement for XP.
Xwidgets uses only six hundred and seventy eight of those VISTA licenses
and keys, deciding to keep the other machines using XP for whatever reason.
May Xwidgets sell or distribute those extra licenses and keys, NO. Xwidgets
was not authorized within the contract to sell any of those, or distribute
outside itself, UNLESS such was specifically allowed within the contract.
May Xwidgets transfer ownership of those reduced purchase rate VISTA
versions or keys and licenses to other parties? NO, the agreement is between
Microsoft and Xwidgets. Xwidgets MIGHT be able to do so if allowed within
its contract with Microsoft OR within its corporate charter/bylaws.
Microsoft's attorneys [or now its sales agents since it has been doing this
for years] would likely have already covered such within the contract [e.g.
X years of use beyond contract or otherwise claused].
Who owns the software? Microsoft.
Who has a license to use the software? Xwidgets, the corporation.
Do you, as an employee of Xwidgets have any control over either Microsoft,
Xwidgets, or the software? NO, you are not a party to the contract.
Let's say your position with Xwidgets is in maintenance or the roll-out
department, or otherwise the parties who would take the old XP machines to
the dumpster or remove old software. Do you or are you authorized to
transfer ownership of those XP machines and/or software or Keys?
Not unless you were given such by the corporation, in conjunction with its
agreement/contract with Microsoft [the terms/clauses of the contract].
The agreement is between Xwidgets and Microsoft, not you or any other
party.
May you, a third party, then pick up those XP machines or software from the
dump or trash and lay claim to the machine or software? The machine
potentially, the software NO. The license and keys authority remains with
Xwidgets, the software still OWNED by Microsoft. Read any EULA created by
Microsoft, those terms are spelled out specifically.
Can a recycler pull the software off one of those Xwidget machines or a
hard drive with the OS on it, and which has the sticker for the key on the
system case, then SELL those OSs or hard drives with the OSs with the Key?
NO, Microsoft OWNS the software and has not authorized the recycler to do
so. The original Xwidget/Microsoft contract still controls, UNLESS transfer
of license ownership was effected from Xwidgets to the recycler.
However, Xwidgets is still bound by its original contract with Microsoft
and must be allowed within the contract, to transfer ownership.
May a recycler, Xwidgets, or other parties who have Product Key numbers;
sell, post, or otherwise distribute those Keys?
A private individual CAN by lawfully transferring the original CD or its
copy [the original destroyed], OR a hard drive or machine with OS and KEY so
long as there are NO other copies [including copies of the Key] ANYWHERE. A
corporation, business, or other, MAY not be able to do the same unless
somehow authorized.
[deleted irrelevant response]
|
| > If it was once held under Copyright or Patent then considerable
| > years must elapse before it becomes public domain, should the
| > owner object.
|
| We are not talking about copyrights or patent ownership issues of the
| product in the current discussion.
Yes we are, because they ARE a controlling issue. It matters not you choose
to ignore them and the full ramifications of ALL applicable Law which
applies. MICROSOFT OWNS THE SOFTWARE, the Patents, the Trademarks, the
Copyrights; and every applicable Law applies. Standing in the background of
every argument or discussion is the full weight of Law.
|
| > Just one more thing: should you have actually purchased a lawful
| > license [CDROM or otherwise], but lost your key, you likely
| > could use another key for an UNSUPPORTED operating system
| > [Microsoft has suggested along those lines].
|
| In the absense of a product-key, what would be in your possession that
| would constitute proof that you had actually purchased a license -
| beyond your own good will?
You as defendant would have the right to produce such at trial, the
prosecution need merely show that you MAY have pirated and/or stolen and/or
otherwise conspired with others to commit fraud or other violations of Law.
Possession of the questionable software would be prima facie evidence that
you have the software at issue, the burden would be upon your shoulders to
proof your licensing/authorization.
The original CD case {with attached Key] might be compelling relevant
proof. OR the nifty little paper/cardboard with the "Don't Lose This Number!
You must use it every time you install this software." with its scannable
product key/strip. OR perhaps the sticker on the machine, however, if it was
registered to someone else, you then would have to proof train of ownership
and/or lawful transfer. Microsoft DOES keep data bases of
registered/licensed users and related information. So do other businesses.
|
| > However, knowing a key does NOT grant license or any legal right
| > to the software.
|
| Knowing a key *AND* not violating the EULA *does* allow you to use the
| software.
|
| If that statement is not true in all situations, then please give one
| counter-example.
Read this post, though I expect, as usual, that you won't be able to grasp
what this post encompasses.
|
| > Unless it is a lawful sale [complete lawful transfer of ownership,
|
| Where in MS's EULA does it stipulate that a "lawful transfer of
| ownership" must occurr?
Read it for once. Then apply the Law.
|
| Does Microsoft even provide any boiler-plate forms or documents to aid
| in this hypothetical "transfer of ownership" process?
Boiler plate... haha, so you think boiler plate wording and contract has to
be provided? Get real. NO ONE has EVER created completely "boiler plate"
legal documents.
The single best *boiler plate*, the United States Constitution, has been
repeatedly and deliberately busted. That's the contract which RULES all
other contracts and Law in this nation.
Boiler Plate is such only until it is circumvented.
|
| Do the product booklets have inside them a formatted place to inscribe
| the name of the purchaser/owner of the license, as well as a
| transfer-of-ownership form?
Don't need them, implied consent by use. Since Win95, the OS license is
registered to the original purchaser/licensee. I remind you that even Win95
had a web-updates site at one time.
|
| Does the EULA stipulate that installer must document his/her ownership
| of the license by filling out the appropriate forms inside the booklet
| that accompanies the license and media CD?
Doesn't need to. Implied consent, use, clicking the proceed/Accept,
installing {intent}; all BIND the party under Law.
|
| Don't you think that MS could ask for something that simple if it was
| their intention to include license ownership as an aspect of the EULA?
Sure, but that's in a world that doesn't presently exist. You are to know
the Law, and are bound to and under it.
Stupid questions, so here's some more....
Does the federal government ask you to fill out forms [except for the IRS
forms] so the Law will apply to you?
Do the State governments ask you to fill out forms accepting the Law as
applied to you?
Do the municipal governments have you fill out forms so the local Law
applies to you?
Does your failure to fill out forms or their failure to supply forms
relieve you from the weight of Law?
The answers are plain, so take your supposed arguments to a proper legal
forum for discussion should you wish to continue. I am done here.
I will leave you with this, I suggest you read it carefully and understand
what it means:
Title 18 Sec. 3551
(a) In General - Except as otherwise specifically provided, a defendant who
has been found guilty of an offence described in any Federal statute,
including section 13 and 1153 of this title, other than an Act of Congress
applicable exclusively in the District of Columbia or the Code of Military
Justice, shall be sentenced in accordance with the provisions of this
chapter so as to achieve the purposes set forth in subparagraphs (A) through
(D) of 3553(a)(2) to the extent that they are applicable in light of all the
circumstances of the case.
TAKE DUE NOTICE: *offence described in any Federal statute* and *in light
of all the circumstances of the case*. Read through those thousands of
federal statutes, Acts of Congress, and Public Law which I directed you to.
Transient copies - Does merely offering licensed or copyright bound software constitute potential criminal or other violations?
CASES:
MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993).
Merely loading computer software into the computer's memory MIGHT be an infringement UNLESS one is licensed to copy such software.
The copyright statutes were subsequently amended to provide an exemption specifically for computer use,
software in those specific circumstances, that brought about the MAI lawsuit. First that court produced the definition of what applies and legislation thereafter defining limitations and restrictions. With allowance for computer software used upon a single system or pursuant other license.
*Copying* of *data* was NOT exempted.
Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443
F.2d 1159, 1162 (2d Cir. 1921),
"A contributory infringer is one who, with knowledge of the infringing activity,
induces, causes or materially contributes to the infringing conduct of
another."
Atlantic v. Howell - file sharing lawsuit
Judge agrees with RIAA lawyers that the "making available" of
copyrighted works using peer-to-peer software constitutes copyright
infringement. Copyright owners have the exclusive rights to distribute
their works; the legal distinction is whether sharing a song in a P2P
folder is the same thing as distributing it.
See: Judge agrees with RIAA. This also applies to other copyrighted materials like the below Music heading.
G. MUSIC ON CDROMS, RECORDS, TAPES, AND OTHER RECORDED MEDIA
As noted previously, all music carries its own copyright immediately upon creation.
Your rights under your lawful possession of these media consists of the right to create a copy of the work for your own private use ONLY.
Generally a lawfully purchased or otherwise lawfully obtained master, gives you the right to:
- 1. Burn a CDROM from a record, tape, other CDROM. or media, or otherwise create a backup copy [using that while keeping the master safe]; and play that material from the CDROM or other media, for yourself and while with a limited number of friends, or family.
- 2. Create a collection of songs from your favorite lawfully own media for your own private usage; and play that material from the CDROM for yourself and while with a limited number of friends, or family.
- 3. Sell, trade, or otherwise transfer ALL masters and ANY AND ALL copies, to another.
You may NOT keep copies for yourself, or the masters, while selling or giving away any copies. Nor may you publish or sell any work, or rip, or compilation, in or on a public forum, without express consent from the copyright owner(s).
The above limits and ownership/purchase rights do NOT give you the right to play the music from any media in a public performance [such as DJ {Disk Jockey}], regardless of non-profit status, unless you receive explicit permission from the copyright owner, or are covered by other licensing, such as licensing agreements from ASAP and/or BMI to cover the performance.
Copyright Circular 40 (it is the guidance the Copyright Office provides to laymen trying to navigate their system):
"The copyright law defines "publication" as the distribution of copies of a work to the public by sale or other transfer of ownership or by rental, lease, or lending. Offering to distribute copies to a group of persons for purposes of further distribution or public display also constitutes publication. A public display does not of itself constitute publication.
A work of art that exists in only one copy, such as a painting or statue, is not regarded as published when the single existing copy is sold or offered for sale in the traditional way, for example, through an art dealer, gallery, or auction house. A statue erected in a public place is not necessarily published. When the work is reproduced in multiple copies, such as reproductions of a painting or castings of a statue, the work is published when the reproductions are publicly distributed or offered to a group for further distribution or public display."
Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 718-19 (9th Cir. 2007).
This ruling points to previous cases (Hotaling v. the Mormons, 4th Cir. 1997 and A&M Records v. Napster, 9th Circuit 2001) that create a "deemed distribution" by making a work available.
The Napster court specifically said:
"Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights."
The Perfect 10 court implicitly follows the Hotaling/Napster line of "deemed distribution," distinguishing the Amazon & Google cases because each were caching and indexing the Net rather than making a collection of owned works available. Howell is squarely *not* in the space carved out for Amazon and Google in Perfect 10.
Publishing/Publication http://www.copyright.gov/circs/circ1.html#pub:
"The legislative reports define "to the public" as distribution to persons under no explicit or implicit restrictions with respect to disclosure of the contents."
"The reports also state that it is clear that any form of dissemination in which the material object does not change hands, for example, performances or displays on television, is not a publication no matter how many people are exposed to the work."
"Online Copyright Infringement Liability Limitation Act" Pub. L. 105-304, title II, Oct. 28, 1998, 112 Stat. 2877.
This law provides the safe harbor for *ISPs and web sites* IF they take proper removal steps or make proper enquiries when [purported] copyright holders make complaints.
G. VIDEO TAPES - VIDEO PERFORMANCES
Video taped performances and performances in general, like movies or other "taped" [digital or analog] materials are held under copyright and other Laws. You have the right to make a copy of your privately owned media, but have no right to any form *public performance* of your media without explicit permission of the copyright owner.
Commercially produced or prepared DVDs and video tapes
generally contain copyright protection which precludes making
copies without specialized software or hardware.
Opinions vary upon your right to duplicate something you
purchased for a backup copy.
If you create your own original video, your original material is copyrighted when created.
HOWEVER:
- 1. Your original work can NOT contain other copyrighted works in the background [such as a movie playing on the TV - public performance] without permission of the copyright holder.
- 2. Your original work may NOT contain clips, excerpts, or other copyrighted materials [performance, sound, or music related] unless you obtain permission from the owner.
To see the effect of what is required, watch the CREDITS and Legal Notice portion of any commercial produced movie/video or cable presentation.
There are variances/allowances to these generalized statements, however, each presentational inclusion in your original work should be carefully researched BEFORE you attempt to include them.
IF the video is for your own personal usage [like home movies],the above does not apply.
However, these do apply if you publish the work [like on the Internet], beyond your private showing to a limited group friends or direct family.
Keep this in mind when mass [group] web camming, or publishing your video on such places like UTUBE, Flickr and the like, on the Internet, OR "streaming" your video or music, because the owner(s) of the copyrighted materials could seek you out and you would find yourself caught in legal action.
See generally, the copyright Laws, and:
http://www.copyright.gov/title17/92chap5.html#512
H. PUBLIC PERFORMANCES
Stage performances, like a: ballet; Opera; Concert; Broadway; or orchestral, are protected under copyright Laws.
You have no right to create a recording of these performances in any form without explicit permission.
A good understanding of the Law, local/State/Federal Rules, Rules of Evidence, and local procedural Rules all must be taken under consideration when confronted with copyright and other Law.
Please consult with an expert in the related fields/Laws/areas discussed above before assuming anything.
SEE:Disclaimer Notice and Legal Notice