well, my day has also been long enough, g'nite tooI forgot that I set my clock at 8:30 so I woke up, crap, I usually can't go back to sleep after I'm awake. [:D]
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Jean,
What you seem to resist is the understanding that VSL are LICENSING their product to the user. The DVD's are simply the medium for transferring THEIR PROPERTY to you. There is nothing to re-sell without violating the licence agreement.
All your examples of re-sale would certainly apply to physical goods. We are in a different area here. cm's examples are quite clear when referring to intellectual property.
A further example:
I compose a musical work and license it to an advertising agency to use for one year in synchronisation with their TV ads. I own the composition. I own the recordings. I merely license the work to them for their use under certain conditions. If, after a year, they continue to use my music and do not pay a further fee, I can sue them. They will be guilty of a criminal offence. If they "re-sell" my music to another company, or use it in a medium other than the one specified, they are in breach of their licence agreement.
They never own my music - ever. They may not re-sell it under any circumstances.
The same logic applies to VSL. By opening the DVD packaging, you agree to their licence terms. If you try to re-sell, you are in breach of copyright.
Regards - Colin
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Colin,
I have an LLB in law (LLM soon too), all I can say is you do not understand copyright law nor the provisions made therein. Legislative powers are trying to strike a balance between consumer rights and copyright holders. But right now, copyright law is not a coffin of death which burries every thinkable consumer right. In Holland for example it is perfectly legal to download MP3s even if you did not buy the original. Shrink wrap licences are non-valid too, someone who picks up a sample cd in a music store is not bound to any license agreement in the first place unless he is explicitly given the option to read that license. And even then, some of the content of that license agreement may very well conflict with legislation.
In the case of distribution rights re intellectual property the European council (and Court of Justice before) have decided that these rights are not always exclusive; they can and do end. What is so hard to understand about that? Are you saying a license agreement is of a higher order than European legislation/jurisprudence? [[;)]]
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[quote=musos]
What you seem to resist is the understanding that VSL are LICENSING their product to the user. The DVD's are simply the medium for transferring THEIR PROPERTY to you. There is nothing to re-sell without violating the licence agreement.
All your examples of re-sale would certainly apply to physical goods. We are in a different area here. cm's examples are quite clear when referring to intellectual property.
good explanation!!! very easy to understand! if one didn't got it now, it's hopeless undertaking!
the conclusion of this discussion could be:
a: we save production costs, making exactly ONE copy of our different releases and then it's up to the ebay-market, customers enjoy yourselves.
or b: we continue our business as usual, fighting against piracy and supporting registerd users.
i vote "b"
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the conclusion of this discussion could be:
A person reselling his original copy is not the same situation as someone making a copy of his discs and selling those copies on Ebay. The former is allowed under (European) law, the second is not.
a: we save production costs, making exactly ONE copy of our different releases and then it's up to the ebay-market, customers enjoy yourselves.
Why the resistance to these facts of law, to the point of denying the obvious? You are free to ignore the assessment of a professional if you wish though. [:D]
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This means that if I buy a VSL product from, say, Best-Service I can resell the original.
problem is, you don't buy the original, you pay for a license to use a copy
well, my day has also been long enough, g'nite too
christian
There-in lies the key to the discussion - license. By purchasing a license we accept all of the restriction set by the licensing agreement.
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ok jean, to pick up musos' example - after closing an agreement with this virtual advertising agency (granting them to use a defined copyrighted music for defined purposes in a defined timeframe) our virtual musician delivers his work to the agency on a DVD.
now is the agency entitled to sell the DVD to another agency? - no. well, maybe they could sell the DVD, but not the right to use the music for anything else than the agreed purpose.
and please don't tell me such agreements are not valid for any exhaustion argument ... that's daily business eg. for film music
christian
and remember: only a CRAY can run an endless loop in just three seconds. -
There-in lies the key to the discussion - license. By purchasing a license we accept all of the restriction set by the licensing agreement.
You do? This is not something new which applies only to sample libraries, the license issue rears its head in a number of other places just as well (software, music).
Let's assume for the sake of the argument that the license is "accepted", the buyer reads it beforehand and knows its contents. Does this imply that anything which the license says actually goes? Of course not! National and international legislation remains the threshold for a viable contractual agreement. Suppose the license would say that the copyright holder is not liable for any damages. Would that be an acceptable clause? If brought for a court in Holland such a clause would be deemed unreasonable and would be tossed asside, such a contractual term is in fact "black listed" in national law.
Just because a license says X does not mean X is a valid clause.
The right to distribute copyrighted works is an exclusive right of the copyright holder, until the ownership of that copy or original is transfered to someone else; the exclusive right to distribute then just evaporates.
For the German readers: [:)]
"Art 4 Abs 1 bringt das Gebot der gemeinschaftsweiten und das Verbot der internationalen Erschöpfung zum Ausdruck. Demnach erschöpft sich das ausschließliche Recht der Verbreitung innerhalb der Gemeinschaft, wenn der Erstverkauf bzw die erstmalige Eigentumsübertragung eines Originals oder einer verkörperten Vervielfältigung „durch den Rechtsinhaber oder mit dessen Zustimmung erfolgt“, dh wird ein urheberrechtlich geschütztes Produkt vom Rechtsinhaber selbst oder mit dessen Zustimmung in der Gemeinschaft in Verkehr gebracht, so darf eine weitere Verbreitung innerhalb der Gemeinschaft nicht mehr eingeschränkt werden."
http://www.rechtsprobleme.at/doks/ausnahmen-urh-kainzbauer.pdf
Page 23 and beyond.
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... Erstverkauf bzw die erstmalige Eigentumsübertragung eines Originals ...
for our english speaking users i'll try to translate .... initial sale of or transfer of ownership on an original ...
here's the point again - it's not an original, it is a copy. not only a copy of a DVD but a copy of the original content. and it is not software (where the lines you're citing could apply)
you buy a poster showing a painting from dali (the company who printed it has of course acquired the right to print and sell it). now you decide it doesn't fit into your new flat and re-sell it. of course the new owner (of the poster) has the right to pin it on a wall and show it to all his friends,
but he still does not own the picasso. and neither the first nor the second owner can sell or transfer the right to print posters showing this painting, because he simply doesn't have it.
not even the company which acquired the right to print the posters could transfer their *license* (unless the agreement is stating otherwise, of course)
christian
and remember: only a CRAY can run an endless loop in just three seconds. -
Well, it's obviously a different case. Here we have a performer or producer who wants to secure his distribution rights. My suggestion would be to make the contract specific so that the use of the soundbites is seen as rental only, that way the principle of exhaustion does not apply.@cm said:
ok jean, to pick up musos' example - after closing an agreement with this virtual advertising agency (granting them to use a defined copyrighted music for defined purposes in a defined timeframe)
That should answer your question. [:)]
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... Erstverkauf bzw die erstmalige Eigentumsübertragung eines Originals ...
for our english speaking users i'll try to translate .... initial sale of or transfer of ownership on an original ...
here's the point again - it's not an original, it is a copy. not only a copy of a DVD but a copy of the original content. and it is not software (where the lines you're citing could apply)Sigh. [:)]
Christian, please read the directive, I've quoted from it twice already. [:D]
Here it is again: "The distribution right shall not be exhausted within the Community in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent."
Emphasis is mine. Do not get stuck on a point which is not much of a point to begin with. The directive applies to the master DVD as well as to all subsequent copies. [;)] In fact it says so in the German quote I provided: "oder einer verkörperten Vervielfältigung". [H]
I can understand why you would want to protect your distribution rights even within the Community, so your hesitation to admit the above is not a surprise. Alas, I did not come up with this legislation, so don't hold me accountable. [:D] (Perhaps of interest, but the reason why the Court of Justice came up with this principle is because it wants to stimulate the free market and the free movement of goods.) This obviously also has its implications for official and non-official resellers.
In any case, someone selling their VSL lib, I hope they think twice, such a wrong decision to do away with it! [[:|]]
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Here's a nice example from the European Commission's Green Paper (COM(95) 382) on the subject of "Copyright and Related Rights in the Information Society", explains what I've been saying quite clearly. Page 45:
"A video cassette or sound recording marketed by the rightholder or with his consent in one Member State may be resold anywhere in the Community, and the rightholder cannot object. He exhausts his distribution rights once he accepts the first marketing. However, the marketing of a product incorporating his work does not exhaust other rights such as the right of reproduction or adaptation. Every service supplied (e.g. broadcasting, rental, or lending) is also an act which must be authorized separately, without prejudice to future forms of exploitation; these rights are not subject to exhaustion."
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One of the difficulties with this discussion - every time it comes up, and it does all the time! - is that every analogy has some flaws. Sample libraries are pretty close to being a unique category of product; I can't really think of anything like them other than fonts and clip art.
Jean, when you pay for VSL, you're buying a license to use their samples for your own creative purposes. The only question is whether they're allowed to stipulate that the license is not transferrable. All that stuff about copies and DVDs and originals and so on is tangential.
As I've posted before, my feeling is that up until now, licenses should have been made transferrable after a certain amount of time (four years, maybe) - but the developer should be entitled to a transfer fee. It would have been to everyone's advantage. The developer would see money he'd never see otherwise for an outdated library, the original licensee would get some money to invest in new libraries, and the new licensee would be getting into the game.
But that assumed the libraries would eventually become outdated. Now I'm not sure that's going to happen. It's hard to imagine how VSL, EWQLSO, or a few other libraries could become outdated, unless physical modeling takes their place.
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... Every service supplied (e.g. broadcasting, rental, or lending) is also an act which must be authorized separately, without prejudice to future forms of exploitation; these rights are not subject to exhaustion."
that's what it says and that's what we say (including but not limited to).
VSL is not a toaster - it is a content and a tool to create music. and as you say even to this (maybe with the help of VSL created) music the above cited applies.
you can't sell rights you don't have - you must be authorized to do so.
christian
and remember: only a CRAY can run an endless loop in just three seconds. -
that's what it says and that's what we say (including but not limited to). VSL is not a toaster - it is a content and a tool to create music. and as you say even to this (maybe with the help of VSL created) music the above cited applies. you can't sell rights you don't have - you must be authorized to do so.
I'm sure VSL is not a toaster. But neither is Photoshop, which provides content and tools to make art. You see my point? [[;)]] Selling VSL is just not "rental," nor "broadcasting" or "lending". There are strict definitions of what those terms mean, which you can find explained in directive 92/100/EEC. I can tell you right now that none apply.
As I said Chris, don't shoot the messenger if he brings unpleasant news. [[;)]]
Nick: If sample CDs are a unique product then convince legislators to make an exception. Personally, I doubt they'd do so! The sample market might deserve a different treatment, I don't know. I do not want to make such a judgement.
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Hi guys, I respect everybody here, and I don't want to be a smart a**, so what I'm about to say is "just me".
To me this is simple. We people that have bought and used sample libraries KNOW what the producers think. We KNOW they believe that we shouldn't re-sell their products. Then that's it. If we don't like this "policy", then we just don't buy and use their sample libraries; if we CHOOSE - out of our own will - to buy and use their products, then we should respect the attitude they hold, shouldn't we?
This may sound too naive on the court, but don't "respect" and "responsibility for you free will" count much more in real life?
Again, that's just my personal humble opinion.
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jean, photoshop does not provide any content - you have to *fill it in*, be it licensed stuff or something created by your own.
thanks nick for mentioning fonts and clipart - i feel that comes very close. also i think the situation with photos from a commercial archive is very similar regarding licensing.
christian
and remember: only a CRAY can run an endless loop in just three seconds. -
Chris, everything related to intellectual property has "content" which is unique in some way or another. Otherwise there would be no intellectual property and it would not be copyrighted in the first place. [;)] That said, Photoshop and other art programs do have *some* content for the user, for example they supply textures, drawings, etc. But seriously, that's not really how one determines if something is intellectual property.
Anyway, any distinction made or similarity to other content is not that important in terms of legal concerns, VSL (and any other sample lib) is copyrighted and falls under copyright law, and mutatis mutandis under the copyright directive. [:)] No escape.
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Jean,
Am I correct in thinking that although it may be legal to sell the DVDs, such a sale would not include a transfer of licence? If that is the case, then, of course, the sale is worthless, and your point academic.
Sample libraries have something in common with library music discs. Library music discs are distributed to film companies, I’m sure it would not be a problem for a film company to sell one of these discs to another film company. However that does not mean that the right to use the recordings in a production has also been sold and bought.
