Schwab's post on copyright law is so misleading, I feel compelled to reply in detail. A point by point response by a lawyer who doesn't even practice in this area:#90: Let's consult Mr Webster:
Copyright isn't defined by Webster's Dictionary, but by law. Arguments over a dictionary definition are not only meaningless, but misleading. The Copyright Act http://www4.law.cornell.edu/uscode/17/index.html
defines "infingement" occurs when "anyone violates any of the exclusive rights of the copyright owner." Among the exclusive rights of the owner is to "reproduce the copyrighted work in copies" under Section 106. Violation of right by making copies = infringement. End of story.
Your arguments about "carrying away" are so misleading as to be DANGEROUS, Schwab. Copyright protects expression, which may be damaged or violated even without a physical "taking." That's why the area of copyright law is called "intellectual property." Don't get caught up in the idea that copyright violations involves any movement of a physical object. Copyright involves RIGHTS regarding the making of a COPY.#103: Let's not. "Licenses" are bullsh!t
Maybe you feel so because the consumer has no real "power" to negotiate or change the terms of the contract (as in the shrinkwrap license is a "contract of adhesion" that is suspect and unfair to consumers or whatever), but the concept of a "license" has significance because that's how the owner of "copyright" permits another to legally use certain exclusive rights otherwise protected by copyright. Software companies tried to draft the "shrinkwrap license" in order to take advantage of an existing legal system of contract. Whether you think they go too far or are fair has nothing to do with their legal effect, or what world you'd like to be living in.#103: You are misinformed. Copying is not theft. Moreover, copyright infringement is not theft. Again, the courts are very careful and consistent in making this distinction.
THIS STATEMENT IS FALSE AND MISLEADING! Copyright infringement is theft in that it is an "unlawful taking" or "improper appropriation" of property rights belonging to another. I challenge you to name ONE court opinion which distinguishes copyright infringement from "theft."
I can't point to any particular case (as I said, I don't practice in the area), but copyright violations are not mere "technical" violations of an arcane law. In 1690, John Locke justified copyright law as the protecting against the theft of an individual's right to control their works and be justly compensated for their contributions to society. See Chapter 5, Second Treatise of Government. The French believe that unauthorized copying not only infringes the author's legal rights, but also his or her moral rights (against mutilation and false attribution). This sentiment resulted in the Berne Convention acknowledging an author's moral rights to the integrity of their work, which the U.S. accepted in 1989.
"Theft" is a legal term, as is "infringement." Violation of either the theft statute or the copyright statute is illegal and can result in the appropriate statutory punishment after a trial. Although a copyright violation or infringement is not always considered a "breach of the peace" that would always qualify for criminal penalties (see below), copyright is a serious matter -- especially when you're caught and facing legal action. Courts have the discretion to charge statutory damages from $200 to $100,000 per act, plus any actual damages (such as lost sales) and the repayment of any profits from the violation. Then you add on the legal fees, which is no laughing matter, lawyers aren't cheap! Getting hit in the pocketbook will usually hurt as much as being placed in prison.#103: No, I would not, since the bookstore would still have the original copy to sell
Your example is incorrect. The bookstore is not harmed, but the owner of the copyright (the author of the book) is harmed. Essentially, you took the author of the book's expression without paying for it. Your "carried away" analogy is false and misleading (see above), because the copyright statute prevents any violation of an "exclusive right" protected by copyright law. By copying the book without permission, you have violated the copyright statute.#103:However, it's interesting to note: Until recently, copyright law only enabled civil action, not criminal proceedings (the two are separate areas of law).
Again, THIS IS INCORRECT. Under Section 506(a) of the 1976 Act, anyone "who infringes a copyright willfully and for purpose of commercial advantage...or private financial gain" is subject to felony or misdemeanor punishment." The provisions were overhauled in 1992, with the motive of deterring the business of computer software copyright infringement. House Report No. 102-997, 102d Congress. Unfortunately, I don't have any materials about the pre-1976 statute. Let's leave the propaganda on both sides about the DCMA out of simple fact, shall we?#89: Copyrights are not property. (Nor are patents or trademarks, for that matter.) They are limited term monopoly rights conferred by the government. Hence the term: Copy right
Property is nothing more than a bundle of rights. That's why there are leases (someone owns the property, but sells the right to use property to another for a period of time) and trusts (one person owns the title to property, but another person owns the ability to benefit from the property). And so on.... The form of property ownership in certain ideas and expressions is protected by copyright, trademarks and patents. Many rights in property are limited by the legal system (which is why there are rights of way for utilities and roads, for example).
Whatever your experience with programming, Schwab, you are severely misinformed about the copyright law.
For those who are confused by the previous poster and want to make up your own mind about what copyright really covers, I suggest the following links:
Brad Templeton's Copyright FAQ (A MUST read!)http://www.templetons.com/brad/copymyths.html
US Copyright Office FAQhttp://www.loc.gov/copyright/faq.html
University of Texas Article on Copyright Law in the Electronic Environmenthttp://www3.utsystem.edu/ogc/IntellectualProperty/faculty.htm
Stanford University Copyright & Fair Use Linkshttp://fairuse.stanford.edu/
CAVEAT: None of the above should be construed as legal advice or be considered to create a client relationship. If you have questions about the above personal comments, read the suggested FAQs and materials (none of which may be 100% accurate or correct) or contact an attorney in your local jurisdiction. You get what you pay for, and don't believe everything you read or eat yellow snow. This comment was edited on Nov 25, 06:22.