Appeals Court Won't Take Up Copyright Decision That Raised Alarm About Embedding, Linking (hollywoodreporter.com) 117
The 2nd Circuit denies an immediate appeal in a case that challenges how news organizations used embedded photos of Tom Brady. The Hollywood Reporter: Back in February, a New York judge caused a bit of a freakout by issuing a copyright decision regarding the embedding of a copyrighted photo of NFL superstar Tom Brady. Now comes another surprise with potentially big ramifications to the future of embedding and in-line linking: The 2nd Circuit Court of Appeals has denied an interlocutory appeal. Justin Goldman is the plaintiff in the lawsuit after finding the photo of the New England Patriots quarterback he shot and uploaded to Snapchat go viral. Many news organizations embedded social media posts that took Goldman's photo in stories about whether the Boston Celtics would recruit NBA star Kevin Durant with Brady's assistance. Breitbart, Heavy, Time, Yahoo, Vox Media, Gannett Company, Herald Media, Boston Globe Media Partners and New England Sports Network were defendants in the lawsuit, but many of these companies have since settled.
Heavy has not, and in February, U.S. District Court Judge Katherine Forrest shocked many legal observers with a decision that refused to apply the "Server Test," where the direct liability of a website publisher for copyright infringement turns on whether the image is hosted on the publisher's own server or is embedded or linked from a third-party server. Although the Server Test has been adopted in other jurisdictions, Forrest wrote, "The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have 'displayed' a work within the meaning of the Copyright Act." She added, "Nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it. Indeed, the purpose and language of the Act support the opposite view."
Heavy has not, and in February, U.S. District Court Judge Katherine Forrest shocked many legal observers with a decision that refused to apply the "Server Test," where the direct liability of a website publisher for copyright infringement turns on whether the image is hosted on the publisher's own server or is embedded or linked from a third-party server. Although the Server Test has been adopted in other jurisdictions, Forrest wrote, "The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have 'displayed' a work within the meaning of the Copyright Act." She added, "Nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it. Indeed, the purpose and language of the Act support the opposite view."
Posting on the public web is implicitly licensing (Score:5, Interesting)
Your material / image for display and linking. That's what the public world wide web IS.
If you hadn't wanted and those things to happen, you would not have posted your stuff where it is accessible and viewable and linkable and searchable on the public WWW.
Copyright law, in my vague understanding, requires that the copyright holder take reasonable steps to enforce their copyright.
Placing your image in public view in a public square is clearly indicating your intention to allow viewing of and referral to the location of your image.
That act (of posting on public site) is essentially the opposite of taking reasonable steps to enforce your copyright.
If you try to enforce copyright after the fact, after you have already implicitly licensed your image for public viewing and for being referenced by publicly accessible URL, that is closing the door after opening it to let the horses out. That is disingenuous, self-contradictory, and should not be legally valid.
Summarize (Score:1)
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Photographer takes a picture o someone. Posts it to Snapchat.
Other news organizations run a story and include an embedded link to the picture.
Photographer is a cunt, and sues.
Moron luddite judge says "LOL I agree with cunt photographer".
Re:Summarize (Score:4, Insightful)
Wanting to control the photo is fine. The cunt part is that they sued innocent third parties instead of the site that had transmitted the unauthorized copies (which appears to be either instagram or twitter; I can't tell) nor the people who pirated the photo (the users of the web browsers).
A non-cunt would have sued whoever had committed the infringement, not the web sites that told people where they can find the photo.
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Wanting to control the photo is fine. The cunt part is that they sued innocent third parties instead of the site that had transmitted the unauthorized copies (which appears to be either instagram or twitter; I can't tell) nor the people who pirated the photo (the users of the web browsers).
A non-cunt would have sued whoever had committed the infringement, not the web sites that told people where they can find the photo.
Both distributing a work as well as a public performance of a work under copyright protection without permission are currently illegal.
At this stage of the case, the judge believes the website was publicly performing the work.
That is certainly under contention but if deemed to be the facts then the website is one of the violators.
The distribution violation would be as you say, instagram or twitter, and yes should have been involved in the case, but I don't believe anything so far precludes that from still h
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The real flaw in your argument is that the world wide web is not a passive backdrop to activity conducted on it. the "World Wide Web", rather, is an information technology protocol-set and platform with an expressed purpose of permitting free and open sharing and inter-referencing of whatever material is placed on the platform.
The terms "web" and "world wide web" should in and of themselves be enough to convey this intent. But the core and essential intent of world wide web distributed platform and technolo
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I'm not buying that. The web sites designed the web pages that embed or in-line link the
Is this guy flipping me? No. Wait, maybe! (Score:2)
Whoa there. I really don't think so. I think their page/article would have pretty much worked just as well, with any other photo. It was a photo-agnostic article. (Ok, I haven't actually read the article so I'm talking out my ass, but nearly every other web page that has a photo on it, is like that! Unless the article is actually about the particulars of the photo, like a critique of the lighting or something
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It's perfectly reasonable thing for a photographer to want to control the display of a photograph that they took. They are trying to make a living and without that control, it would be next to impossible to make a living as a photographer. That's one reason for a copyright.
Then they shouldn't fucking publish the photograph publicly for free.
I wouldn't call the photographer a cunt, but he is acting like one.
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I think appointing judges was one of the few things he did without violating a law, offending someone or causing an international incident. But then again, he's not important enough in my life to monitor him 24/7, so there might have been other things.
I'm definitely not a trump supporter but (Score:1)
Whoever, owing allegiance to the United States, levies war against them or adheres to their ENEMIES, giving them aid and comfort within the United States or elsewhere, is guilty of treason...
Trouble is, technically Russia is not an enemy of the United States currently in any legally valid sense of the word. "Enemy" in legal terms would refer to an adversary in open and declared war with your country.
So Trump while perhaps guilty of the colloquial back-yard-barbecue-debate level of treason, is not guilty du
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Well it certainly is a good thing the POTUS doesn't have the Constitutional power to declare war. That's a power reserved to Congress.
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Sage words....even still true in contexts outside this particular case, just avoid anything Tom Brady in general.
His wife, however...is another case, please, post lots of photos of her, especially if nude....I wonder how she'd look covered in grits?
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Right. Even if you don't sell books, if you tell people where a bookstore is, and it turns out the bookstore sells some pirate copies of a book, you are now the person who infringed the copyright.
This judge would say you're "displaying" the book by referencing where to get it, since you know that some people will take your advice and go to the store and get the book.
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Re: Summarize (Score:2)
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Re: Summarize (Score:2)
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So basically the maxim "there are no free rides" is still in effect.
It's spelled "TANSTAAFL". You know, from TMIAHM. By RAH.
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And that is exactly as it should be.
Twitter / Instagram has the explicit right to display the image, given to them either by the photographer or through the users fair use. They do nothing wrong with fulfilling a HTTP GET request for the image. Instagram and twitter are actually all about sharing the posts / images, on these sites between users and that is why they exist and people upload stuff to them.
The other websites on the other hand do NOT have the explicit permission of the photographer to display
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The other websites on the other hand do NOT have the explicit permission of the photographer to display the image on their site in any way.
That's perfectly fine, as they don't display it on their site.
It does not matter that they tell the client browser to get the image from twitter and display it within their own page instead of hosting it themselves
Yes, it does. It means that they do not touch the photograph, do not copy the photograph, do not display the photograph, do not do a fucking thing to the photograph except tell people's browsers where it can be found.
Sue the readers of the site, they're the ones accessing the copyrighted image.
To add insult, they are using the image ( without permission ) to make money on these sites.
I'm a photographer. I will get seriously pissed off at people that copy my images and exploit them commercially.
I wont get pissed off at people that use th
Re:Summarize (Score:5, Informative)
An interlocutory appeal causes the natural progression of a lawsuit to pause because there's a question of law that needs to be resolved before proceeding.
In this matter, a citizen took a photograph and the media grabbed it and used the photo in news stories.
Appreciate that the news agencies are making money, but the photographer is not.
The interlocutory appeal is a request by the media, "Wait a minute! The photo is not stored on our servers. We don't take the position that we "own" it. We are simply embedding a shared photo from another place."
U.S. District Court Judge Katherine Forrest shocked many legal observers with a decision that refused to apply the "Server Test," where the direct liability of a website publisher for copyright infringement turns on whether the image is hosted on the publisher's own server or is embedded or linked from a third-party server.
So, the judge said, "We're not going to call a time out and create a sidebar court session to determine provenance because the photo belongs to the photographer and it don't make a flying rat's ass where it's stored."
Photographers would benefit greatly if use of their work anywhere had to comply with copyright law.
This action might impact embedded links, as well.
Play like you are in your automobile as you read this and it will make a swell car analogy.
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Not really since image searches are an entirely different sort of use than news stories. I think this would likely be the relevant fair use clause:
(4) The effect of the use upon the potential market for or value of the copyrighted work.
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Nah.
Discovery is a natural function of the Internet.
USE, on the other hand ...
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OR she ruled that news companies can't set up a shell company in the Bahamas (or wherever, just the first place to come to mind) with a server farm where they host every single picture they want to post but don't want to pay for.
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You're welcome.
I don't know why in simple hell your question was modded down.
Happened to me the other day.
Good questions, particularly by those like we whose feet don't stink and we love Jesus, should be elevated so the Gentle Reader will see them and stuff.
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because the photo belongs to the photographer and it don't make a flying rat's ass where it's stored."
Well, if it's on Twitter's servers, then that is huge, because Twitter's Terms of Service [twitter.com] then apply to the submitter.
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... make available ...
That's what the whole goddam Internet does.
Just because something is available, it's not necessarily in the Public Domain.
How many times do we see a viral story where the thread is fraught (my new word for the day) with media requests, "Hi Sonja, this is ABC World News Tonight. May we use this? We will give you credit. Thanks."
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Note that even the summary says that the photographer posted it on snapchat, not twitter.
Wait... that's no escape. To say they hadn't licensed it: the post to Snapchat would've likewise had to have been made without the
photographer's permission (A violation of Snapchat's ToS).
And then Snapchat has a similar set of terms of use for posters/submitters that provide an even broader license to the public.
And yes: Just like Twitter, Snapchat provides an embed interface that allows other entitie
You mean like this? (Score:2)
https://www.tate.org.uk/art/im... [tate.org.uk]
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In the car analogy, the car was borrowed with permission. Isn't that how the photo got onto Twitter in the first place?
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Someone, with permission, examines a car and makes an identical copy of it, leaving the original car intact for its owner's use. Luckily, they make the copy out of bits, so no extra iron and aluminum mines are needed, and no significant extra pollution is caused.
The copier places the copy at a car show, and allows everyone there to examine the car and make their own copy of it.
Re: Summarize (Score:2)
If you embed it in your page, are you responsible for it? Like ads, twitter posts, youtube vids etc. that youâ(TM)re not simply linking to but rather displaying as part of your own page. The theory so far has been that this is the sourceâ(TM)s problem and not the embedderâ(TM)s. This ruling can mean youâ(TM)re responsible for everything, like if the twitter post has a photo used illegally youâ(TM)re liable.
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"But I suppose once you decide to be absurd,"...
"How much wood would a woodchuck chuck" ..."is that a North American woodchuck? or a Russian woodchuck?"
becomes
"How much woodn't wouldn't a woodchuck chuck."
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Taking a bus is maybe $150/month cheaper than owning&operating a used low-end car. If you take the bus twice a day, 25 times per month, and each time you take it you waste half an hour compared to just driving...that's valuing your own time at $6/hour.
Of course that's a back-of-the-envelope calculation. But I imagine for anybody who gets paid more than minimum wage, ultimately it makes more sense to drive than take public transportation, unless the express bus is literally a direct shot to their work,
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Displaying a linked image in your web page is a pretty far fetched definition of "performing" the image.
If anything is performing, it's the web server and web client software and client computer.
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Not really. It's more akin to telling people living by a large stadium to open their windows on Wednesday night to listen to a Muse concert.
You know what would be cool ... (Score:2)
would be if the congress would take the time to understand the issue and bass and amendment to the copy rite act that would address many of these digital concerns so that judges who aren't competent could stop guessing.
Of course it would be pretty cool if someone would mass market a flying car that you didn't need a piolets license for and cost less the $20K ;)
Lots of thing would be pretty cool i guess
Re: You know what would be cool ... (Score:2, Informative)
Re: You know what would be cool ... (Score:1)
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would be if the congress would take the time to understand the issue and bass and amendment
Lots of people are going to agree that congress doesn't take the time to understand the issues, or the amendments.
But who in their right mind thinks congress doesn't understand bass?!? If you don't think they have time for fishing, you've never seen their schedule!
Re: You know what would be cool ... (Score:2)
My apologies dyslexia is a pain and spell checkers don't always work. So I guess public school if you can go so far as to say I learned at all ;)
well (Score:2, Insightful)
Actually seems reasonable, as far as it goes.
I don't think you'd get away with displaying even stock photography that you hadn't got permission for, just by linking to an instance of it on someone else's website. Try arguing that with Getty ...
Whether that should be the law is open to debate, but it sounds like a reasonable application of existing law.
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Actually seems reasonable, as far as it goes.
I don't think you'd get away with displaying even stock photography that you hadn't got permission for, just by linking to an instance of it on someone else's website. Try arguing that with Getty ...
Whether that should be the law is open to debate, but it sounds like a reasonable application of existing law.
I think it makes sense also. If my "website" uses the imagery even though it's stored on someone else's server, if I get hits/pageviews/ad money from that viewing, shouldn't that mean I'm responsible for the content therein? Otherwise it's profit without liability.
So basically mirrors are illegal (Score:2)
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Because you're not in possession of the copyrighted image, but your mirror (the physical kind, not the server kind) is reflecting its image. Therefore, in the court's opinion it's a copyright violation. Brilliant reasoning.
If you somehow used a physical mirror (or series of mirrors?) to publicly display artwork that you didn't own or have rights to display, particularly if you profited from it, then, well, yes, that would likely be illegal.
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By current law that is totally legal.
It is also well-litigated in the example of baseball games; you can absolutely watch from a crane or something next door if you can find a view.
Televising it wouldn't be allowed.
Mirrors don't "create" a "copy," and we can prove that by displaying the unaltered mirror in the courtroom to see if it contains the work, or not.
In the case of computers, ephemeral copies created inside of the computers memory for the purpose of displaying the image do not create a discrete copy
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In the case of computers, ephemeral copies created inside of the computers memory for the purpose of displaying the image do not create a discrete copy; computers do not violate copyright by being built with cache, or by having separate main memory and video memory. A physical mirror is an even easier case.
Strange that most courts in the world see that different.
Why do you need a license to run software? Because the computer is copying it from disk to main memory to execute it, same for the contents of a DV
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Why do you need a license to run software? Because the computer is copying it from disk to main memory to execute it ...
Sorry, you've apparently fallen for propaganda. A license may be required to install the software (creating a durable copy on the disk), but not simply to run it. At least in the US, creating an ephemeral copy of a program in main memory for the purpose of executing it does not result in a durable copy in the same regulated by copyright law. (Other jurisdictions may have even less coherent rules, of course.)
... same for the contents of a DVD.
Except, last I checked, DVDs don't come with licenses. Neither do books, and the contents of DRAM are
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Neither do books,
You don't make a copy from the book when you read it.
DVDs don't come with licenses.
Yes they come, the license is "implied".
No one who is not distributing copies to others should have any reason to know or care about copyright law. False. Because then he can simply copy something from somewhere for his own use, and that is what copyright first most wants to restrict.
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Televising it wouldn't be allowed.
So we know he can't video record the NFL game (even from a crane) and put it on the internet, that would clearly be copyright infringement. He can however take still images of the game, that would apparently be fair use - of somebody elses copyrighted material (the NFL). A picture for personal use would be no big deal, people take pictures at sports events all the time. A picture for commercial use seems to stretch that a bit far though. It's not transformative in any way - how does it become his copyri
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No, a still image is exactly the same. You fell off the hypothetical. A mirror image is not a "copy." A mirror's reflection of a still image is not a copy of that image. Holding up a mirror to let people view is the same as letting people climb onto the crane to view.
If the photographer is allowed to post it to twitter, and it is embedded inside a page but is still served from twitter, that isn't any new copy. And if twitter isn't allowed to publish it, then it can be shut off at the source. Then it might m
Surely he got written consent for (Score:2)
Those are trademarks, not copyright (Score:2)
The logos are trademarks, not copyrighted.
The photographer may not use those trademarks as the insignia for his football team, which is unrelated to the Patriots.
As an example, the Mozzilla foundation can name their email software Thunderbird. Chevy can't name a sedan Thunderbird, because that would infringe on Ford's trademark using Thunderbird to brand a car. I can also write about a Ford Thunderbird, or photograph one.
As to Brady's likeness, you can't use it without permission for an _exploitive_purpose_
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Any image creates is copyrighted on creation. Basic understanding of the subject fail.
Several requirements. Not anything like ALL images (Score:2)
Sorry, it turns out your guess is wrong. There are several tests that must be met in order for an image to be copyright eligible. One of those tests is the threshold of originality.
If you draw a typical stick figure, you can't copyright it because it'll look pretty much like every other stick figure. Production of the the image must require creativity, and must in some way reflect the personality of the artist - if pretty much everyone would draw about in about the same way, it can't be protected. Another
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If it is copyright eligible it has copyright automatically when created.
Congratulations for missing the point, and arguing a pedantic hair-splitting detail that was omitted merely because it is not relevant to the analysis.
In general, when something is usually true, and also true in the specific case, and it is stated in an overly-broad way, it doesn't really cry out for correction, especially when you're dishonestly claiming it is "wrong." And that it was a "guess." No, it was the accurate truth in 7 words
A great way to took smart (Score:2)
I'm sure you know the difference between stupid and ignorant, or uniformed. A stupid person can't learn, an uninformed person hasn't learned yet. A smart person is someone who can learn new things.
A smart person, when it's pointed out that team logos:
https://goo.gl/images/7JBrwu [goo.gl]
And the NFL logo:
https://goo.gl/images/YSS5fB [goo.gl]
can be and are used without copyright permission (in a way that doesn't infringe on their trademark), when they're given a link to the law and to example cases, can learn something new. "A
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So what do you call a person who scans the words and regurgitates spam? If they understood it, they'd discuss it, but they don't; the post spammy links that are highly unlikely to be consistent with the actual arguments they're making; categorically, because if they had an understanding of the subject they would have already been discussing it, and they'd be doing web searches to increase their own understanding, not to make half-assed stabs at argument from authority.
Try to understand the words that were s
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To add for anybody wondering, the actual answer is that in any of the cases where the logo doesn't get copyright, it is not because it is a logo, it has nothing to do with logos, the link above to archive.org even clarifies that nobody involved in that action was claiming that the trademark status, or the commercial use as a logo, is relevant. They all agree it is not relevant. So all these other links to stuff about logos are just horseshit designed to mislead people.
The logos that didn't get copyright did
At least you now have a guarantee (Score:2)
Someone with an IQ of 60 can learn to tie their shoes.
Someone we never went to even elementary school can see things and learn something new, even accidentally.
You've provided yourself with a guarantee, though. You've discovered the fool-proof way to everlasting ignorance - simple refusal to learn. "I won't click on a link to law! If I read the law I might learn what it says!", says Aighearach.
At least your way is predictable - proof against all information, ensuring everlasting ignorance, by refusal to see
No, this is a nothingburger (Score:5, Interesting)
No. This has no ramifications whatsoever to the future of embedding and in-line linking. "Interlocutory appeals" are appeals that are taken while the case is still in the middle of being litigated in the trial court. Interlocutory appeals are an extremely rare exception [cornell.edu] to the concept that a trial court is to hear the entire matter and issue a final writted decision, and then the completed trial decision is to be appealed.
Look at the link. Does the appealed order "resolve an issue completely separate from the merits of the action"? The copyright infringement claim was the heart of the action. Is the order "effectively unreviewable on appeal from a final judgment"? No, an appeal from a final judgment of copyright infringement would squarely involve liability for embedding or in-line linking.
This was a purely procedural decision that the appeal was brought too early, and the appellate court wasn't having it.
Finish the trial, then come back. "I really really think that the ruling was wrong" is not a basis for interlocutory appeal.
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Ironically, the appeal might have saved the plaintiff a lot of money, and the plaintiff has the smaller pockets. But the judge looked at who was asking for it, and said no way too early.
They already got settlements from most of the original defendants, and they need new law to eventually win. The whole point of why they can get settlements is for the defendants to avoid the cost of trial, not because of the eventual outcome!
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Statutory damages for copyright infringement include a discretionary award of reasonable attorney fees.
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And yet, I knew that before making my comment, as it doesn't change the analysis in any meaningful way.
Did you know that awards get paid after the case is entirely finished?
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Why, yes, yes I did. Did you know that firms such as the one that I work in litigate on other than an hourly fee basis via mechanisms such as flat fees, tiered fees, risk sharing and success fees, etc?
You have no idea whether this client would save money by artificially shortened litigation - especially since the only way that the litigation would be shortened in such an appeal is by this client losing his copyright claim.
You analysis is
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You can't possibly argue that I don't know, but you do. We have the exact same information. Exact.
I generally like lawyers, but some don't understand that outside of the courtroom, honesty is a virtue; and casual honesty is a requirement for people to continue engaging in conversation with you. If you're trying to advocate for an argument, instead of sharing analysis of the issues, then nobody wants to hear you burp and blather up.
WTF is a "nothingburger"? (Score:2)
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Trump appropriated it, and your definition is a bit off.
"[T]he term has evolved to describe highly publicized non-events, particularly stories of political intrigue without proof or consequence." [knowyourmeme.com]
It was super appropriate because the term originated in Hollywood gossip
Katherine Forrest (Score:2)