4 ms·

wasn't this already 'de facto' invalid?

by jheriko 11y ago

jheriko 11y ago
i appreciate this downvote, but millions of people have violated this copyright unknowningly... afaik this makes it invalide 'de facto' if not 'de jure'.
- WiseWeasel 11y ago
  Trademark can be lost if not enforced, not copyright.
  - jheriko 11y ago
    any law is unreasonable to enforce if the vast majority would break it unknowningly. this is the point of making the distinction between 'by the letter of the law' and 'in reality'.
    - eru 11y ago
      You can still enforce that law against people you don't like..
      - kuschku 11y ago
        You can’t in some jurisdictions. If something does not violate the constitution, and it has always been done in a specific way, then, unless a law directly targets it, it stays legal. (in Germany). Called Traditional law, or Traditionsrecht. IANAL.
- georgemcbay 11y ago
  Copyright doesn't work like that, you may be confusing it with trademark. (Just to be clear, I'm not one of the people that downvoted you.. seems like a silly thing to downvote on when a response is much more useful to everyone).
  - jheriko 11y ago
    not really, this is the difference between 'de jure' - by the letter of the law, and 'de facto' - which is what actually happens. the fact that millions of people unwittingly breach this copyright has made it unenforceable in those cases. you would expect any sane judge to throw such a case out... even before this ruling.
    - swhipple 11y ago
      It isn't "de facto" legal if the owner decides to pursue it or not. The problem is the lack of knowledge of rights associated with intellectual property. Many people make their bulletin board flyers by searching a related term on Google Images and pasting it into their document, without any thought to the licensing or knowledge that they might need a license. Despite that they are not likely to face legal consequences, it doesn't erase the copyright holders' rights to their image -- even if the image is very popular and many people unwittingly infringe on the copyright every day. TW's claim was invalid here because they did not own the full rights to "Happy Birthday to You", not because of the popularity of the song.
anigbrowl 11y ago
Not if you wanted to use it in a film or TV show - failure to license it correctly would make it impossible to sell, and expose one to triple damages claims in theory, though they never brought any action - but 99.9% of producers would rather just pay the licensing fees.
bskap 11y ago
From the article: > Royalties on the song bring in about $2 million a year for Warner, according to some estimates. If they're getting $2 million a year for it, I wouldn't call it de facto invalid.
- jheriko 11y ago
  that is a good point. i was thinking more that very many people learn and hear the song without ever learning that it is copyrighted... i'd expect big legal teams for big companies to at least do their job well some of the time... despite my experiences with this. this is where i'd expect the money comes from... people proactively being very careful to not get into trouble. i think the vast majority of hypothetical cases claiming copyright infringement would struggle though. many small time birthday party entertainers certainly make money from the song, but it would be utterly unreasonable to pursue that money given the cultural phenomenon that it has become... i'd expect any decent judge to throw such a case out rather than mindlessly doing his job to the letter of the law.
  - mark-r 11y ago
    This is exactly what gives IP law its power. The judge has no choice, and as the defendant you need to make the choice of paying for the lawsuit or paying for the license. The license is always cheaper.

wasn't this already 'de facto' invalid?

by jheriko 11y ago

wasn't this already 'de facto' invalid?

i appreciate this downvote, but millions of people have violated this copyright unknowningly... afaik this makes it invalide 'de facto' if not 'de jure'.

WiseWeasel 11y ago
Trademark can be lost if not enforced, not copyright.
- jheriko 11y ago
  any law is unreasonable to enforce if the vast majority would break it unknowningly. this is the point of making the distinction between 'by the letter of the law' and 'in reality'.
  - eru 11y ago
    You can still enforce that law against people you don't like..
    - kuschku 11y ago
      You can’t in some jurisdictions. If something does not violate the constitution, and it has always been done in a specific way, then, unless a law directly targets it, it stays legal. (in Germany). Called Traditional law, or Traditionsrecht. IANAL.
georgemcbay 11y ago
Copyright doesn't work like that, you may be confusing it with trademark. (Just to be clear, I'm not one of the people that downvoted you.. seems like a silly thing to downvote on when a response is much more useful to everyone).
- jheriko 11y ago
  not really, this is the difference between 'de jure' - by the letter of the law, and 'de facto' - which is what actually happens. the fact that millions of people unwittingly breach this copyright has made it unenforceable in those cases. you would expect any sane judge to throw such a case out... even before this ruling.
  - swhipple 11y ago
    It isn't "de facto" legal if the owner decides to pursue it or not. The problem is the lack of knowledge of rights associated with intellectual property. Many people make their bulletin board flyers by searching a related term on Google Images and pasting it into their document, without any thought to the licensing or knowledge that they might need a license. Despite that they are not likely to face legal consequences, it doesn't erase the copyright holders' rights to their image -- even if the image is very popular and many people unwittingly infringe on the copyright every day. TW's claim was invalid here because they did not own the full rights to "Happy Birthday to You", not because of the popularity of the song.

anigbrowl 11y ago

Not if you wanted to use it in a film or TV show - failure to license it correctly would make it impossible to sell, and expose one to triple damages claims in theory, though they never brought any action - but 99.9% of producers would rather just pay the licensing fees.

bskap 11y ago

From the article: > Royalties on the song bring in about $2 million a year for Warner, according to some estimates. If they're getting $2 million a year for it, I wouldn't call it de facto invalid.

jheriko 11y ago
that is a good point. i was thinking more that very many people learn and hear the song without ever learning that it is copyrighted... i'd expect big legal teams for big companies to at least do their job well some of the time... despite my experiences with this. this is where i'd expect the money comes from... people proactively being very careful to not get into trouble. i think the vast majority of hypothetical cases claiming copyright infringement would struggle though. many small time birthday party entertainers certainly make money from the song, but it would be utterly unreasonable to pursue that money given the cultural phenomenon that it has become... i'd expect any decent judge to throw such a case out rather than mindlessly doing his job to the letter of the law.
- mark-r 11y ago
  This is exactly what gives IP law its power. The judge has no choice, and as the defendant you need to make the choice of paying for the lawsuit or paying for the license. The license is always cheaper.