I feel the tr/ills will come out of the woodwork on this story arguing this is more of Techdirt’s bias, and their predictable basis for complaint will be sound in that this story is invalid in that it can’t be independently verified, and therefore is based on “trust” in the teller of it alone. I think stories like these either should be told in full detail, regardless of the author’s concern, or left off the site for I fail to see what purpose they serve besides being the targets for hyperbolic claims of pro-piracy propaganda.

“Either the writer is within his rights under the doctrine of fair use or he is not. It is not his property to use as he sees fit. Someone else owns it. I can not borrow your car just to go down to the 7 11 and back because it’s old and you’ve parked it on a public street.”
OMG I just took your comment and copy-pasted it. If you look above to your comment, you will see the portion I re-posted here gone, because it was stolen by me and now exists only over here. Call in the lawyers.

Masnick it sounds like your friend doesn’t believe your bullshit assertions like: and that its usage without a doubt met all of the criteria of a typical fair use defense and these kinds of uses do not need permission.
He did it the right way by asking permission, got shot down and made the best of it. If you are so sure of yourself, why didn’t you offer to cover any liability or defense arising from his “fair use”? Don’y bother answering, I already know the answer.

I know this piece was supposed to be some hard-hitting journalism, but it’s just making me crack up. Where’s the “copyfraud” exactly? I won’t hold my breath waiting for Mike to come into the comments to discuss any of the nuances. You and I both know Mike doesn’t do nuance when it comes to copyright law.

> If the liar is good enough…

It’s usually spelled ‘lawyer’, isn’t it?

You do not need an attorney to understand the basic premise of fair use. But you do need to educate yourself. Many resources — often written by intellectual property attorneys — lay out this aspect of copyright clearly and succinctly.

Not doing so — and thereby submitting to the fallacies and fear this piece tends towards — is what causes a chilling effect upon your own speech.

She’s mocking you about your lack of understanding in how copying actually works.

If you are talking to me, I am far from a troll. You have to understand the system in which you are operating in order to take advantage of its benefits. If not, you will be on the outside, working in fear and with many erroneous conceptions.

If you are talking about Leigh, his sentiments are commonly held by those who would benefit for more legal education.

Actually I am not sure myself.

Right. You don’t see the fraud because there is none. Mike Masnick is deliberately lying to his readers–again.

Ding! It’s not copyfraud. Not by a mile. Mikey of course knows this, and he deliberately chose to use the word incorrectly for dramatic effect. In other words, he is just plain lying.

Fight back.

http://www.photos-public-domain.com/
https://meta.wikimedia.org/wiki/Help:Public_domain_image_resources

I cleeared copyright permissions for one of the larger publishing companies for a while, and had a couple of things to add.

The article states that permission was requested to reprint an “image.” It is important here what the image is; the rights to photos are almost always held by the photographer, so if it was a photo taken by someone other than the original author, the author would have had to have licensed the reprint rights to use it, which would not give the publisher any right to grant others the right to print, only to print it themselves. Also, if that were the case, then the photo would be a work in it’s own right, and not a small part of a larger work. For instance, if I publish a book and get permission to use an image of an Ansel Adams photo, I only have the right to print that image, and can’t grant anyone else the right to print it. My using it in my book does not make it a minute part of a larger work, but it remains a complete work on it’s own.

If the image was a chart or a graph, it would be similar; whether the publisher could grant reprint rights would depend on where it came from; the would only have reprint rights if the original author had produced it himself as part of the book. Thus, it’s actually quite likely that the book publisher did not grant the permission simply because they did not have reprint rights themselves.

I would only grant permission for images if I had physical copy of the book in which I could check for photo credits. However, we controlled somewhere around 15,000 titles, and try as I might, I couldn’t fit more than about 10,000 of those in my cubicle. While I did have access to the contracts for the books, the photo credits generally stayed in the editor’s files – getting ahold of editor’s files from 50 years ago was simply not possible.

Try reading the title of the article Professor.

Try the very first sentence too. And don’t forget the “File Under” section to the left, where this article is tagged “copyfraud.” Your CTRL+F skills are dubious.

LMAO! You just know Mike reads every single comment, obsessing over it all and hurriedly looking up detractors’ IPs. I’m sure there’s a bag of Doritos involved too. Probably some donuts as well.

Blocking someone’s post because you don’t like the message is censorship. It’s hilarious that you blame the detractors and not their censors. You guys are too much. The irony is palpable. The fact that Mike “Hey, That’s Censorship!” Masnick has a built-in censorship feature in his comments section is priceless.

Usual troll fare, didn’t read any part of what the guy said. 😀

By that logic, Rojadirecta wasn’t blocked either. You just have to go to a different URL. Give me a break. The whole point of reporting the post is to censor it. You guys are too fucking much with the idiotic denial of this.

Rojadirecta wasn’t blocked; their domain was seized. Your comment wasn’t seized.

And by the way, if we still don’t know who you are, why the big fuss when Mike alludes to knowing who you are, eh?

“and that its usage without a doubt met all of the criteria of a typical fair use defense”

Without a doubt? If he had no doubt, why give in so easily?

Did you perhaps ask the rights holder for an opinion?

“Mike clearly believes”

This is the key problem here. It’s what Mike believes, not what the law specifically states.

Fair use is still a fairly narrow thing, and the permitted uses for protected content under fair use still are quite grey. While he feels absolutely certain that this case would have passed as fair use, it’s not really clear. Of course, with the signed restraining order and the lack of information, we have to take him at his word. Since we know which side of the argument Mike is always going to be on, it’s not hard to find his beliefs to be at least somewhat strained here.

I would have to say that Mike’s assurances don’t do it for me. While the claim is that “The use was for non-profit educational purpose”, it’s pretty marginal in the US for sure. After all, almost all learning establishments (beyond high school) are not free. Universities charge an insane amount of money for an education, so works used, especially at a privately owned and funded University might not be quite as “non profit” as he would like to suggest.

Further, if it was for use in a text book that might be published and sold to other schools, or sold to students, one has to wonder where the legal lines would be drawn.

You also have to look at what was going to get used. As an example, something beyond a short clip from a movie would be a real issue. Let’s say the teacher intended to include all of the Star Wars movies as study material for a study of incest based relationships. Now, would that be fair use, or an abuse (using the material, not your sister!)?

Since Mike is light on details and long on rhetoric, it’s hard to tell where this case stands. It’s safe to say however that any claim of fair use that is close to the edges of the grey will sometimes have outcomes he doesn’t like.

As I posted, earlier: Copyright owners have a duty to consider if a use falls under Fair Use before filing a suit. The mere hint that they will file suit when a use is clearly fair, as this would be since it is non-profit for educational purposes, is copyfraud.

Team LV

Wow, Pirate Mike can’t even be bothered to come into the comments and defend his article. What are you scared of, Mikey? Are you really THAT unsure of yourself? What a joke. You don’t even stand behind your own words. Why is anyone supposed to take you seriously?

Huh? I don’t know what you’re talking about with the Mike “alludes” thing, nor do I care. Making access to someone’s words more difficult is censorship. The whole point of flagging the post is make it so others have to jump through a hoop to see it. Considering the incredibly wide definition of the word “censorship” that Mike employs, this would clearly fall under it. Give me a fucking break with pretending like it’s not censorship under Techdirt’s own use of the word.

LMAO! Mike deliberately lies in his article and gets called out on it. What does he do? Does he defend his own words? Nope. He sends in the B-team, and he’s nowhere to be found. He’s off writing the next article where he’ll lie and manipulate some more.

What kind of a man won’t even stand behind his own words? Mike Masnick, snake oil salesman.

” Telling someone they cannot do something, despite copyright law saying they can is copyfraud.”

I appreciate your comments here Mike. However, I think this is the area where you are having the problem. While you may feel that this case lines up nicely with other cases, let’s be fair here (about fair use): It’s a grey area that isn’t a 100% slam dunk in many situations.

Fair use isn’t an absolute, set in stone sort of thing. It’s a judgement call, that takes in all the actual usages (and even some of the potential uses) of the resulting work, the context under which the copyright work is used, etc. There is no absolute slam dunk here.

As for the ad hom attacks, you might want to consider that the absolute “I know better than the courts and the lawyers and the people involved” attitude might be something that is getting you some flack. You may want to try to turn your attitude and approach down a notch, say from “absolute god of IP” to “well informed mere mortal”. That will probably get you the better results you are looking for. Try accepting for a second that the opposing view MAY have at least a small amount of merit, and they may in fact do the same for yours.

This is absolutely a law blog. It’s post after post after post about IP law. Give me a break. Mike likes to throw out legal terms of art like fraud, copyright infringement, fair use, etc. In doing so he’s attempting to make legal arguments. If he wants to make legal arguments, that’s fine, he should be willing to back them up. The fact is, though, he can’t and he doesn’t. He pretends like he’s too busy to debate in the comments, when the fact is, he’s just hoping someone does it for him.

And, good grief, just look at the lightweights he has writing articles about IP law. Just within the last week you’ve got Zach tackling the subject of whether selling an UltraViolet redemption code is infringement. And you’ve got Leigh tackling a trademark case (applying the Techdirt-sanctioned “moron in a hurry test”). Neither one of those boys understands the law sufficiently to have anything intelligent to say on those matters.

Mike, if you’re going to say idiotic things, and if you’re going to have idiots do your bidding, then don’t act all surprised when you get called out for being an idiot.

Dude, if that post was for me, you need to cut it down to a paragraph or two. If I want stream-of-consciousness, I’ll read elsewhere. Just make your point if you have one. My point is simple: It’s absolutely ridiculous for Mike to pretend like the rightsholder did anything wrong here. Their property, their right to say no, and their right to threaten to sue should the requester actually follow through with some kind of unauthorized use. They have every right to not license the work, and they have every right to not indemnify this guy’s use up front. Mike’s trying to turn this into the Big Bad Monster vs. The Little Man, but it’s not. Mike is just a little child stomping his feet when Mommy said no to ice cream. It’s more copy-whining from the world’s biggest copy-whiner.

I don’t believe that many of the commenters on this page have read the Copyright statute or explanatory works written by lawyers for lay people on copyright. Those would benefit greatly by doing so. Some of the comments I have read — professing legal knowledge that is clearly spurious is of benefit to no one who reads it.

But, to respond to your comment, under the US Constitution, freedom of speech is not absolute. There are many limitations upon speech, even as the law generally encourages freedom of speech.

Intellectual property is without doubt under the law a form of personal property. And as to abuse, remember that I, as rights holder in property, can limit your ability to make use of it. Unless you are somehow otherwise lawfully permitted, as under fair use.

By analogy, under the law, you can not use my car without my permission, regardless of the goodness of your purpose or your perceived or actual need.

Intellectual property is without doubt under the law a form of personal property. And as to abuse, remember that I, as rights holder in property, can limit your ability to make use of it. Unless you are somehow otherwise lawfully permitted, as under fair use.

I think the confusion (being spread on purpose by a couple of the commenters above) is the false assertion that I am asserting that this is *legal fraud*. I am not. I used the term “copyfraud” specifically and carefully as it was defined by Jason Mazzone, the law professor who coined the term. It is an overclaiming of the rights provided by copyright. I am not saying it is an actionable thing under any sort of fraud statute. That’s just a commenter making stuff up.

I am saying that it is an overclaiming of control via copyright, which has become commonly (within these circles) known as copyfraud thanks to Prof. Mazzone’s definition.

There you go! Now you’re CwF’ing!

I assumed “copyfraud” was a portmanteau of “copyright” and “fraud,” i.e., fraud involving someone’s copyright. I get that you’re adopting Prof. M’s meaning of the phrase, but, unless it’s actually fraud, I think it’s inherently misleading to call it “copyfraud.” Kind of like how you don’t want people to call infringement things like “piracy” and “theft.” Unless it’s actually fraud, don’t call it copyfraud. And, no, the professor’s good paper doesn’t give you a license to deceive people. Unless you want to explain to people that copyfraud is not in fact actionable fraud, then you’re misrepresenting the issue to your readers.

Looking at his paper, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244, p. 1028, Prof. M. says: “Copyfraud, as the term is used in this Article, refers to claiming falsely a copyright in a public domain work.” That is not how you’re using the word. What’s the public domain got to do with the publisher denying your friend a license? Nothing. You are not using the word copyfraud correctly, as Prof. M. defined it.

Page 1047, the part about fair use, demonstrates your misunderstanding: “Copyfraud involves false ownership claims to the public domain, but the problem is not entirely removed from the behavior of legitimate copyright holders. Copyfraud is exacerbated when owners of valid copyrights interfere with lawful de minimis copying and fair use and thereby impose restrictions beyond what the law allows.”

It’s only copyfraud when claiming false ownership of the public domain. The practice of publishers imposing restrictions beyond what the law allows is not itself copyfraud, it is merely behavior that exacerbates copyfraud.

In other words, you’re not using the word “copyfraud” to mean the same thing the professor is using it to mean. See the point? Either way, you’re wrong about this being copyfraud, and you’re wrong to lead people to believe it’s fraud. It’s neither.

And for fuck’s sake, you don’t have to be so dramatic. Somebody has a property right. Somebody tried to negotiate the use of that property. They didn’t like the answer they got. Is it totally fair? No. Fair use is inherently wishy-washy, and rights holders, especially professional ones, are going to err on the side of fuck you. People are not super-generous with their property rights. They are in the business of licensing the rights to those works, not in giving them away.

While a work is under copyright, Mike, that’s the way it works–by design. Your time-frame is that copyright must promote the progress at the maximum amount possible during all possible time-frames. That’s not what the Constitution envisages. You can make anything look dumb if you look at it too closely, and with copyright, that’s all you ever do.

Rereading Lenz, I see that the case is indeed inapplicable here. The DMCA states that a takedown notice must contain “a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by . . . law.” 17 U.S.C. ? 512(c)(3)(A)(v). The court reasoned that since fair use is authorized by law, a person filing a takedown notice must consider fair use to be in good faith.

None of that is present here in the case with your friend asking for a license from a publisher. It defies credulity to argue that the holding in Lenz, which turned on a statute positively creating a duty, imposes some kind of duty on a publisher who is approached by a would-be licensor. You’re really stretching this one past the breaking point with this silly Lenz argument.

It sounds like a completely normal situation where an academic article contains a chart or photograph from an old book. The researcher was being over-polite and asked for permission, even though it is within fair use. Being over-stingy, the corporation refused. The researcher went ahead and published anyway.

Having achieved his purpose, the article’s author demurred when Mike Masnick proposed to feature the dispute in a web article. Obviously over-careful.

Now Mike is being overly-nice to his friend by withholding the details we would need for a (serious) evaluation. Thus obstructing the free flow of information, and we get this goopy article.

Is there a story? Hard to tell.

If your friend even for a moment thought it was fair use, he would have used the picture, image whatever….

Then let the courts decide if it was fair use or not, since only the court can make that decision, not any of us. So you can claim until you are blue in the face that it is absolutely fair use, until that court case, what you are spewing is meaningless drivel and misleading at best?

They as rights holders have the right to say no, you cannot use our picture. That isn?t fraud; it?s a disingenuous stretch to claim that, they didn’t try to stop him from publishing his story. They let him know they will defend their IP; there is nothing wrong with that.

This crap story is filled with CNN info, which is basically something has happened and here is our made up bullshit opinion from sources that we can?t name because they are not allowed to talk about it?.