Copyright As Censorship: Author Removes Blog Post After Being Threatened For Quoting 4 Sentences

from the fair-use dept

It's amazing how frequently we see stories of copyright being used as censorship -- even in cases where the copyright claims are obviously bogus. Being on the receiving end of a threat is no fun, and it's not surprising that many people choose to cave in, rather than fight. Back in early 2011, author Patti O'Shea wrote a blog post on her personal blog about a "Human Factors Training" exercise she did for work. She talks about one of the exercises, in which the attendees were given a scenario and then had to prioritize:
You’re on a plane that crashed in the Sonora desert. The pilot and copilot are dead, but you and your classmates are unharmed. Your plane was 70 miles off the course that was filed prior to take off and you crashed 50 miles southwest of a mining camp. You have 15 items with which to survive. Rank them from most important to least important.
She then lists out the items:
The items were: a flashlight with four batteries, big jack knife, aeronautical chart of the area, big plastic raincoat, magnetic compass, compresses and bandages, 45 caliber gun with bullets, red and white parachute, bottle of salt tablets, 1 liter of water per person, book titled “Edible Desert Animals”, pair of sunglasses per person, 1 liter bottle of alcohol (96%), light summer coat per person, makeup mirror.
I've actually done this very exercise a few times in the past (I think even in junior high or high school). It's incredibly common and I've seen slight variations on it for years. You can see a very similar version on the Google Lunar X Prize site, for example. But there are others as well. The idea is hardly a unique one.

O'Shea quoted those few lines, and then detailed what her group chose (with some explanations for why or where they agreed/disagreed) and then briefly discussed how they compared to "experts" and how well her group did against everyone else (they had the best score, compared to the experts). All in all, the blog post was 12 paragraphs, only one of which quoted the scenario in question. Of course, if you go to that blog page now, you get a very different story:
This blog was removed because Human Synergistics International (the company who holds the rights to the training material that was used in the class I talked about here) sent a take-down notice claiming my quoting of four sentences violated their copyright.

I believe their take-down notice to be without merit. As an author, I respect copyright and I believe the quote was covered by the Fair Use Doctrine.

However, despite this, I’ve removed the post. It’s not worth the time or energy arguing about a blog article that was nearly two years old when the notice was received.

You see, Human Synergistics International sent her a legal takedown, nearly two years after the blog post went up:
It has come to our attention that you are displaying some text from the Desert Survival Situation™ on your website at: http://www.pattioshea.com/blog/2011/01/26/were-doomed/ without prior permission. The Desert Survival Situation is copyrighted by Human Synergistics International, which has the exclusive right to reproduce, copy, edit, translate and otherwise exercise ownership over the material. Please be advised that we have no agreement that gives you or your organization permission to reproduce this exercise in any format. Therefore, this action constitutes a direct violation of our copyright.
Yeah, let's not even get into the fact that they felt the need to put the ™ after "Desert Survival Situation." Either way, it's difficult to see how O'Shea's use is not fair use. Human Synergistics might not like it, but its claims of what its "exclusive rights" are, without recognizing exceptions like fair use is a classic case of overstating their rights, also known as copyfraud.

Yes, the company wants to try to require people to hire them if it wants to use this exercise, but they're still the ones with the "experts' responses" and who (supposedly) understand how to run the experiment in a useful team-building manner. Revealing the basic scenario doesn't do any harm to them at all. In fact, one could argue that having people who have gone through the exercise talk about it, as O'Shea did, helps make other people more interested in hiring the company to run that training exercise. But, really, who wants to hire a company that runs around issuing copyright legal threats to people who went through their program and were excited enough about it to talk about it publicly?

Either way, below is the image of what O'Shea's blog post used to look like. Even though she's confident that her use qualified as fair use, it's just not worth fighting about. And that, of course, is the real shame in all of this, and how copyright is used to censor perfectly reasonable expression -- merely by the threat of legal action.


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    :Lobo Santo (profile), Oct 5th, 2012 @ 12:28pm

    Terse

    Well, the problem is obvious.

    How shall we correct it?

     

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    Anonymous Coward, Oct 5th, 2012 @ 12:39pm

    Proper Response: *Eyeroll*

    My guess is that a lot of attorneys really value their shitty blog posts; or are still out of work, if they think their four sentences need citation.

    The copyright probably should have been enforced. It would have been interesting to see the judge roll their eyes too; but their four sentences could have been entered into public record.

     

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    Mike Shore (profile), Oct 5th, 2012 @ 12:43pm

    You often reprint the original "offending" content in your posts, and I assume this is partially to bait the copyright owner into going after you as well, as logically it should make sense. Do you often get a nastygram or other communication from these guys? I would assume not, as they know you are correct and that they would just be embarrassed, but I am curious!

     

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      Anonymous Coward, Oct 5th, 2012 @ 1:03pm

      Re:

      There's at least one instance of that because he mentioned the word SOPA and it got taken down for a while lol. Shows you how badly they were trying to suppress anti-sopa sentiment.

       

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      Ophelia Millais (profile), Oct 5th, 2012 @ 2:15pm

      Re:

      I hope we do hear from their legal counsel, or whoever made the decision to send the infringement accusation. My suspicion is that they know about trademark law's "use it or lose it" basis that demands vigorous enforcement, and they mistakenly proceed under the assumption that copyright is in the same boat. It seems likely that the decision to send this letter over such a benign situation is a manifestation of the all-too-common "better safe than sorry" approach to doing business.

       

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      Anonymous Coward, Oct 5th, 2012 @ 5:26pm

      Re:

      It's called 'rope a dope'. When your opponents seem prone to doing an incredibly stupid thing that should turn out very poorly on them, it pays to afford them every opportunity available to do that thing again.

       

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    Anonymous Coward, Oct 5th, 2012 @ 12:54pm

    ban all copyright and patents, end of problems like this. in the mean time, get politicians educated on the subjects and get them to send out notices informing everyone that big fines and jail time will be issued against fraudsters.

     

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    Anonymous Coward, Oct 5th, 2012 @ 12:54pm

    Cool book to read

    I performed some research into this company, and it seems that Patti O'Shea may have infringed on the book by the CEO and his team at the company, Linda D. Sharkey, Nazneen Razi, Robert A. Cooke, and Peter Barge. Shame on Patti!

    It sounds like a good book, is called "Winning with Transglobal Leadership" and is likely about transglobal effects of blogging as well as copyright citations.

    I suggest you read it. You can save some money if you buy a copyright-compliant "used copy" available on Amazon; or check a copy out from your local library. Chances are that you'll want to do this before they run out of used copies still available on Amazon. Printing new physical copies is somewhat expensive.

    http://www.amazon.com/Winning-Transglobal-Leadership-World-Class-Organizations/dp/0071 790519

     

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      Anonymous Coward, Oct 5th, 2012 @ 1:39pm

      Re: Cool book to read

      I know this is just marketing and should be ignored, but am I the only one who thinks that just the use of words like "transglobal" is enough to prove that they're idiots?

       

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        Anonymous Coward, Oct 5th, 2012 @ 2:36pm

        Re: Re: Cool book to read

        Well yes, Transglobal sounds like a company term from the 1980s. Anyone else remember Transworld Airlines? I don't think they're around anymore.

         

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      Soundy (profile), Oct 5th, 2012 @ 1:45pm

      Re: Cool book to read

      I recall doing similar exercises in high school as well (early 80s)... so wait, is HSI claiming that Patti infringed on this IDEA, or on their specific wording of it?

      And hmmm, according to that Amazon link, the book was published in April 2012. Yet Patti's blog post was over two years ago? Does this mean HSI has perfected time travel? Perhaps they should be going after H.G. Wells next?

      The really sad part is, Patti's right - it's probably NOT worth the time, effort, and ridiculous expense it would take to defend herself... which I'm sure is what most copyright ninjas count on when making their claims: hit those who are least able to defend themselves, and they should knuckle under easily.

      Reminds me of the old WKRP, where the religious group wants to control what music the station plays: Venus asks why they aren't going after television; Johnny responds that they probably want to practice on a couple guppies first before going after the whale. (Disclaimer: paraphrased shamelessly from an IMDB synopsis of the episode).

      So the question now is, who plays the part of Les Nessman here, in the following exchange (copied and pasted shamelessly from IMDB)?

      Andy Travis: I'm going to fight them tooth and nail.
      Arthur 'Big Guy' Carlson: I know you are.
      Andy Travis: If all else fails, I might set Les Nessman on them.
      Arthur 'Big Guy' Carlson: Boy, that could signal the end of organized religion as we know it.

       

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    Chosen Reject (profile), Oct 5th, 2012 @ 12:56pm

    This reminds me of the time average_joe tried to argue that the 1st amendment and copyright never comes into conflict. His argument as I understood it was that its not censorship if the state doesn't do it. I'm no lawyer, and I don't even play one on TV, but I can't get my head around how it's different if the state does it directly vs the state authorizing someone else to do it. I couldn't care less if the state had a Department of Road Building and they built roads or they state contracted road builders. In either case, the road was built by the state. I don't care if the state's goons are doing the censoring or if the state has given authority for other entities to censor. In either case something is being censored by the power and authority and backing of the state. This is state censorship.

     

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      Zakida Paul (profile), Oct 5th, 2012 @ 1:07pm

      Re:

      "but I can't get my head around how it's different if the state does it directly vs the state authorizing someone else to do it"

      That's because that particular troll's argument is bollocks. Censorship is still censorship where it is a public or private entity enacting it.

       

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      jupiterkansas (profile), Oct 5th, 2012 @ 1:13pm

      Re:

      Fair use is a free speech defense. If the case goes to court, the court has to rule on free speech vs. copyright, therefore it's a government issue, therefore potential government censorship. It's not the company censoring free speech, it's the court's ruling that does it.

      Unfortunately, claiming fair use makes you "guilty until proven innocent" which is the whole problem with fair use and copyright law.

       

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        Anonymous Coward, Oct 5th, 2012 @ 1:37pm

        Re: Re:

        But isn't the point here that she was effectively censored without ever going to court? Chilling effects and all that.

         

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          Chosen Reject (profile), Oct 5th, 2012 @ 2:00pm

          Re: Re: Re:

          Yes, that is the point. It's called prior restraint, and it's not smiled upon by the courts when it's a first amendment issue. But claim copyright and a lot of courts will trip over themselves to allow a copyright holder censor others with the backing of the state.

           

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          average_joe (profile), Oct 6th, 2012 @ 9:39am

          Re: Re: Re:

          But isn't the point here that she was effectively censored without ever going to court? Chilling effects and all that.

          She was confronted with a copyright claim. Even if she has a viable fair use defense, that doesn't negative the fact that the copyright owner has a prima facie case for infringement. It's not "censorship" for a copyright owner to assert a prima facie claim against an alleged infringer, even if that infringer *might* have a valid fair use defense.

          It's with articles like this that the anti-copyright zealots try to get the troops all riled up with chants of "Censorship!" To the extent this woman's use is not fair use, her First Amendment rights are not being infringed. She is still free to say the ideas contained in the expression she has copied.

          She could spend a few seconds rewording the sentences, even keeping all of the same ideas, and she wouldn't be infringing. The ideas are not locked up. It's just anti-copyright FUD to pretend like this actual censorship, i.e., the blocking of ideas. To call this "censorship" is ridiculous.

           

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            The Infamous Joe (profile), Oct 7th, 2012 @ 2:07pm

            Re: Re: Re: Re:

            This is the problem with "innocent until proven guilty" and why Fair Use should be made more than just a "defense" against copyright infringement claims. The entire point is that her use is almost assuredly fair, but the costs of proving her innocence outweighs the gain from doing so. The fact that you're okay with this setup, as always, shows just what kind of person you are. (Especially ironic since you're always ranting about morality!)

            ..and it *is* censorship. It might be legal, but it's still censorship.

             

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      Josh in CharlotteNC (profile), Oct 5th, 2012 @ 2:15pm

      Re:

      This reminds me of the time average_joe tried to argue that the 1st amendment and copyright never comes into conflict. His argument as I understood it was that its not censorship if the state doesn't do it.

      He states that argument, but he never defends it against any kind of criticism. As soon as anyone calls him on it, he runs away. Don't expect any response from him.

       

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      Bergman (profile), Oct 5th, 2012 @ 5:21pm

      Re:

      Simple answer for joe:

      If you ignore what the copyright owner is saying and just keep on doing what you want, what happens to you? The state jumps on you and punishes you. If the state doesn't get involved, then how would the copyright owner compel you to do anything at all?

       

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      Anonymous Coward, Oct 6th, 2012 @ 6:27am

      Re:

      "This reminds me of the time average_joe tried to argue that the 1st amendment and copyright never comes into conflict."

      Ooo, h8tr-aid, anyone?

      Seriously, copyright and the 1st amendment are NOT in conflict here. The only issue of debate here is if the writer has a good fair use claim on the quotes being used in the article.

      I think it's doubtful.

      Human Factors Training is a privately taught course, with materials not published, but only given to students for use during the course. It's not generally published material. It is proprietary information, which they share with students only during the time of their training.

      The value of the training given by the company may drop if people are able to "prepare" by getting the course material ahead of time. This blog post might force them to change their cost material at cost, just to avoid anyone getting a jump on the course.

      Remember, at least part of the value of these courses for training is that people do not know what is going to happen, and don't know specific scenarios or questions they will have to deal with.

      Discussing the class may in fact be a violation of the contract signed to enter into it as well.

       

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        Mike Masnick (profile), Oct 6th, 2012 @ 9:41pm

        Re: Re:

        Human Factors Training is a privately taught course, with materials not published, but only given to students for use during the course. It's not generally published material. It is proprietary information, which they share with students only during the time of their training.

        http://www.desertsurvival.com/explanation.htm

        Oops. You're wrong.

        The value of the training given by the company may drop if people are able to "prepare" by getting the course material ahead of time. This blog post might force them to change their cost material at cost, just to avoid anyone getting a jump on the course.

        Not only do they publish it themselves on their page, as noted in our post, there are a ton of similar exercises found on the web.

        Discussing the class may in fact be a violation of the contract signed to enter into it as well.


        Then they would have said that in their letter. They did not.

        I love how you just make up stuff that's totally wrong. Must be exhausting.

         

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      average_joe (profile), Oct 6th, 2012 @ 9:52am

      Re:

      This reminds me of the time average_joe tried to argue that the 1st amendment and copyright never comes into conflict.

      You're making the same mistake Mike made when he went super-ballistic-asshole-mode on Professor Adam Mossoff. Of course the two have inherent conflict. That's so obvious and fundamental that I don't think anyone denies it.

      The point is that, descriptively speaking and applying actual legal doctrine, copyright laws don't violate the First Amendment. What Prof. Mossoff said was 100% true, and he was merely describing the actual controlling law, i.e., the Supreme Court's interpretation of the constitutional question. The Court's interpretation of constitutional issues is the supreme law of the land, and to refer to it accurately is only to state the actual law.

      Mike on the other hand points to sources like "No Law" (a book that in its own preface admits the book is "legal fiction") and Prof. Netanal's work. Those types of arguments, the ones that Mike pretends are controlling, are only normative arguments. They're made by people who are saying, "Hey, maybe we should look at it like this." Those are not descriptions of the actual law, they are aspirational ideas of how the law could be if the law changed.

      When I (and others, like Prof. Mossoff) say that the two are not in conflict, what we mean is that, legally speaking, the current controlling view is that the two are definitionally balanced (as opposed to ad hoc balanced) internally by the fair use doctrine and the idea-expression dichotomy. It's complicated, but the reason copyright laws get what's essentially a free pass (rational basis scrutiny) is because copyright doesn't lock up ideas and there's fair use.

       

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        The Infamous Joe (profile), Oct 7th, 2012 @ 2:10pm

        Re: Re:

        All that backpedaling must be great for your legs.

         

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        Josh in CharlotteNC (profile), Oct 8th, 2012 @ 7:35am

        Re: Re:

        what we mean is that, legally speaking, the current controlling view is that the two are definitionally balanced (as opposed to ad hoc balanced) internally by the fair use doctrine and the idea-expression dichotomy.

        If that is truly your position, then you would have to agree that weakening either or both the fair use doctrine and the idea-expression dichotomy would unbalance copyright.

        I'm also pretty sure that TechDirt has been covering the regular weakening of both of those for about 15 years now.

        Basic logic:
        1) If A happens, then B.
        2) A happens.
        Therefore, B.

         

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    Alto (profile), Oct 5th, 2012 @ 12:59pm

    Desert Survival

    I would have chosen the mirror first too!
    What do I win?

     

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    jakerome (profile), Oct 5th, 2012 @ 2:03pm

    50 miles? I can do that.

    Well, it would be stupid to drag the whole group. But two people with about 4 liters of water each, sun protection, flashlight the compass and start hiking 2 hours before sunset. Yeah, if you got a couple marathoners or hikers, we'll get to Point B in 15 hours.

     

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    Nina Paley (profile), Oct 5th, 2012 @ 2:16pm

    It's amazing how frequently we see stories of copyright being used as censorship

    It's not amazing to me. Copyright is used only for censorship. That's the entire mechanism of copyright: legal suppression of media. It's better called censor-right.

     

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      average_joe (profile), Oct 5th, 2012 @ 2:51pm

      Re:

      It's not amazing to me. Copyright is used only for censorship. That's the entire mechanism of copyright: legal suppression of media. It's better called censor-right.

      I look at it more from a First Amendment perspective. The reason copyright laws don't violate the First Amendment is because they don't lock up subject matters or points of view. Copyright doesn't block ideas. As you well know, Nina, you're free to talk about whatever subject matter you want, and you're free to take any point of view on a given subject matter that you want. Copyright doesn't prevent you from doing that. So I think it's disingenuous to call copyright "censorship." To the extent that copyright doesn't allow you to copy what others have already done verbatim, it nonetheless doesn't prevent you from speaking freely about anything you want. To call it "censorship" when it doesn't stop you from making point about any subject you want seems silly.

       

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        Chosen Reject (profile), Oct 5th, 2012 @ 3:08pm

        Re: Re:

        I think Han Solo should have shot first. Pardon me while I re-re-re-release a version of Star Wars that has my ideas in it.

        I think the Wizard of Oz ought to be watched with Dark Side of the Moon playing. Pardon me while I release a version that has my ideas in it.

        I think Phantom Menace should have a lot of stuff removed and rearranged to make the pacing better. I could describe it to you, but you'd never really know what my ideas are like unless I actually do it and then show it to you. So pardon me while I do just that.

        Are you suggesting that I can't do these things? Wouldn't that be state censorship? Isn't that an infringement on my first amendment rights?

         

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          average_joe (profile), Oct 5th, 2012 @ 4:45pm

          Re: Re: Re:

          Depending on what you're doing, it may be fair use protected by the First Amendment, but it could also be unauthorized copying of protected expression. Either way, it doesn't infringe your First Amendment rights. You're still free to speak freely. Censorship would be prohibiting you from talking about the presidential candidates (subject matter) or your support of a particular candidate (point of view). Copyright laws get the minimum amount of scrutiny when challenged on First Amendment grounds because ideas aren't locked up.

           

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            Anonymous Coward, Oct 6th, 2012 @ 9:24am

            Re: Re: Re: Re:

            You can keep repeating it, but they don't get it. For the most part, when it comes to this topic, people here are like a sheep, stuck behind a single section fence in an otherwise empty field. Rather than just walk around it, they instead bash up against the fence section over and over again, stuck for no good reason.

            Chosen Reject does this perfectly. He (or she) has a near infinite number of ways that he can use free speech and speak freely, but he instead wishes to bang his head against the grey lines of fair use and copyright.

            They also generally confuse physical ability, the "I can do it" with the "I should do it" or "I have the right to do it". They forget simple things like "I can break into someone's house" or "I can shoot my neighbor" or "I can sell crack to schoolkids". All things that are physically possible, but that you have no right to do.

            It is incredibly amusing to watch them go, trying so damn hard to justify their illegal acts. They sheeple even marked his post as "insightful", which really gives me a huge insight into how little they are actually thinking.

             

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              Anonymous Coward, Oct 6th, 2012 @ 11:44am

              Re: Re: Re: Re: Re:

              They forget simple things like "I can break into someone's house" or "I can shoot my neighbor" or "I can sell crack to schoolkids". All things that are physically possible, but that you have no right to do.

              What do those have to do with copyright infringement?

               

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                average_joe (profile), Oct 6th, 2012 @ 12:55pm

                Re: Re: Re: Re: Re: Re:

                What do those have to do with copyright infringement?

                People who otherwise respect property rights forget the rules when it comes to infringement. Just because you can infringe (that super-fast internet connection and huge hard drive just seem so empty for some), that doesn't mean it's OK to do it.

                 

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                  silverscarcat (profile), Oct 6th, 2012 @ 2:33pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Copyright =/= property rights.

                  Please get the terms right.

                   

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                    average_joe (profile), Oct 6th, 2012 @ 3:41pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Please get the terms right.

                    I am using the term correctly. "Property" just means the bundle of rights in a thing (as opposed to the thing itself). Copyright is a bundle of rights in a thing--the underlying work. Even Mike admits that copyright is property as the word "property" is used in the Constitution. Ask him.

                     

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                      Anonymous Coward, Oct 7th, 2012 @ 11:44am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      What does copyright infringement have to do with murder? Or selling drugs to children?

                       

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                        Anonymous Coward, Oct 7th, 2012 @ 3:17pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Copyright infringement IS murder. Remember how home taping killed music and the movie industry was strangled to death by the VCR?
                        And remember, copyright infringement funds international terrorism.

                         

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                      silverscarcat (profile), Oct 8th, 2012 @ 8:14am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Copyright pertains to IMAGINARY Property.

                      You know, IP

                       

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                  Anonymous Coward, Oct 6th, 2012 @ 8:35pm

                  Re: Re: Re: Re: Re: Re: Re:

                  It also doesn't mean it's NOT OK to do it.

                   

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          Anonymous Coward, Oct 6th, 2012 @ 8:26pm

          Re: Re: Re:

          You certainly couldn't do any worse with "Phantom Menace" than George Lucas did. Anything would be an improvement.

           

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        Digitari, Oct 5th, 2012 @ 4:58pm

        Re: Re:

        Really?? I wonder how long it would take Disney to put an end to a youtube video of me reciting snow white verbatim from memory as I give commentary to each scene.

        How much you want to bet it wouldn't pass content ID let alone not have a DMCA take down????

        even if it's in My words

         

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        Anonymous Coward, Oct 5th, 2012 @ 8:16pm

        Re: Re:

        There is more to speech than simply "ideas," you know.

         

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          average_joe (profile), Oct 6th, 2012 @ 9:10am

          Re: Re: Re:

          I'm talking about ideas as the core values that the First Amendment protects. The First Amendment protects ideas, even (and especially) the unpopular ones:
          The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.
          Miller v. California, 413 U.S. 15, 34 (1973).

          The First Amendment protects the exchange of ideas:
          The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. This objective was made explicit as early as 1774 in a letter of the Continental Congress to the inhabitants of Quebec:

          ‘The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.’ 1 Journals of the Continental Congress 108 (1774).

          All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests.
          Roth v. United States, 354 U.S. 476, 484 (1957).

          Copyright doesn't block ideas because copyright is not censorship. Censorship is exactly what the First Amendment was created to protect--censorship is the enemy of ideas. Copyright doesn't lock up ideas, it only locks up specific expressions. And these specific expressions--these works--are quite valuable socially.

           

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      •  
        identicon
        Anonymous Coward, Oct 11th, 2012 @ 1:28am

        Re: Re:

        Nina Paley's rent is paid for her.

        Did you know that?

        Any discussion of real-world economics with her are comical by definition.

         

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      •  
        identicon
        Ed Goff, Nov 12th, 2012 @ 9:03pm

        Re: Re:

        I think you are right in theory. In practice you are wrong.
        I received a take down notice from Blogger.com about a post written last year. By the time I read the email, the post had already been removed. I was told that this removal was based on an allegation made by persons unknown. The exact details of the allegation were never specified- although a disabled link was supposed to allow me further information. I was warned that if I chose to re-post the material without removing the mystery problem, my entire blog could be removed and legal consequences could follow (if I used Adsense which I don't). I was also informed that if I had any questions of legal basis I would have to retain a lawyer. Like most people I cannot afford to have a permanent legal team on hand to protect my free speech. In my case, I assume I would have a strong case of fair use, based on the fact that the material on the post is sound research in the public interest with quotes linked to the original material. Having a strong case, however, is not important when you have no ability to a fair hearing.

        So the whole question of fair use never comes up. The accuser is free to remove any information from the net that he or she is offended by whether or not there is any merit to the claim. This is how copyright is indeed a first amendment issue.

         

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      DerekCurrie (profile), Oct 5th, 2012 @ 3:27pm

      Re: Nina Paley

      I suggest you read some studies about the history of socialism and the consistent failure of imposed socialist systems.

      Copyright provides that great creative force we call INCENTIVE. If there is no incentive, as is the case with socialist systems, there is only a small minority (which includes myself) of the community that is nonetheless creative. Every person requires full respect for their work at all times. Every person deserves credit for their work at all times as a default form of respect.

      Human systems without incentive consistently rot into crime and self-destruction. I know of no exceptions.

      Censorship is an entirely different subject. It is a practice I never condone. It is a driving force in the self-destruction of our current worldwide human culture. I am entirely in sympathy with stopping censorship of everything except that which harms other people. This is part of my personal identity as what I call a 'Positive Anarchist'. I strive for maximum choice. However, in order for choice to be successful, it requires maximum responsibility for the choices one makes. There is nothing beneficial in Negative Anarchy whereby poor choices are made and the consequences be damned. Negative Anarchy is one of the forces driving our worldwide culture in to the loom granite wall of dire consequence. I hope you are not one of the blind and lost who never use the steering wheel. That's not good for you or anyone else.

       

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      •  
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        Mike Masnick (profile), Oct 5th, 2012 @ 6:10pm

        Re: Re: Nina Paley

        Copyright provides that great creative force we call INCENTIVE.

        It provides *an* incentive, but hardly the only one. In fact, multiple studies have shown that it's rarely the driving force behind creation, which is often driven by the need to create. Furthermore, if you're claiming that it is the monetary incentive, once again, you ignore the fact that there a myriad ways of making money from creation that do not involve copyright.

        In the meantime, as we've seen, as copyright law has been less respected over the past decade, we've seen a MASSIVE explosion in content creation. In the past decade somewhere around 5X the number of songs have been recorded then in all of human history before that. Last year over 3 million books were released. A decade ago, the number was about 235,000. We're in an explosion of creativity today, and very very little of it is because of copyright law.

        To argue that there is no incentive other than copyright is ridiculous and ignorant.

         

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        •  
          identicon
          Anonymous Coward, Oct 6th, 2012 @ 8:00pm

          Re: Re: Re: Nina Paley

          Mike, what would you think is the school had a NDA?

          Think about it - the only way to sign up is to agree not to disclose.

          Where do you think that would leave the blogger?

          Anyway... for your point:

          "To argue that there is no incentive other than copyright is ridiculous and ignorant."

          There goes that bizarre absolute thing again. Why do you feel the need to represent any other argument in an absolute, you can't have one without the other way?

          The point is that copyright does provide SOME incentives, and in some cases may be the best system to encourage content creation. Notice I didn't say ONLY, I said "may be the best". That doesn't preclude other ways of doing things.

          Now, with copyright firmly in place, and if I believe your assertions here that copyright is getting so strong as to be putting everyone under it's thumb, there has been "a MASSIVE explosion in content creation". Why is that, you think? Perhaps copyright isn't such a drag after all.

          So the reality seems to be that for the most part copyright isn't impeding a massive explosion in content creation (your words), and at the same time provides incentive for some (I would suggest many) to make some of the most popular content out there today.

          Seems like a win win.

          Now for fun, let's try your technique:

          To argue that copyright blocks all content creation is ridiculous and ignorant.

          See? it's how you do it.

           

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          •  
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            Mike Masnick (profile), Oct 6th, 2012 @ 9:38pm

            Re: Re: Re: Re: Nina Paley

            Mike, what would you think is the school had a NDA?

            Think about it - the only way to sign up is to agree not to disclose.

            Where do you think that would leave the blogger?


            Then they would have accused her of violating the NDA, not copyright law, as they did.

            There goes that bizarre absolute thing again. Why do you feel the need to represent any other argument in an absolute, you can't have one without the other way?

            Not me. The original comment I responded to claimed that copyright needed to be kept as is because it provided incentive. Not "an" incentive. But incentive. As if nothing else would. The absolute was on the original commenter and I was responding to that.

             

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            •  
              identicon
              Anonymous Coward, Oct 7th, 2012 @ 1:35am

              Re: Re: Re: Re: Re: Nina Paley

              "Not me. The original comment I responded to claimed that copyright needed to be kept as is because it provided incentive. Not "an" incentive. But incentive. As if nothing else would. The absolute was on the original commenter and I was responding to that."

              Yes, but understand - you are doing the same thing in claiming people are saying something they are NOT saying. You are trying to paint them into a corner and make them defend a point they aren't making. That sucks.

              "Then they would have accused her of violating the NDA, not copyright law, as they did."

              Actually, it would be both - and copyright is expedient for the job. Claiming copyright doesn't also preclude them from enforcing an NDA as well.

               

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      •  
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        dennis deems (profile), Feb 1st, 2013 @ 6:55am

        Re: Re: Nina Paley

        Anyone who requires an INCENTIVE in order to be creative is not an artist.

         

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  •  
    identicon
    BOLLOCKS, Oct 5th, 2012 @ 2:27pm

    Please let's stop all this crap bollocks to copyright and patents and all the other shit

    Imagine if you will that Your were on a plane that crash landed in the desert. The pilot and copilot are died, but you and your fellow passengers are uninjured. The plane was 130 kilometres off the route that was filed before take off and you crashed 70 kilometres southwest of a camp used by local mining workers. You have a number of items which could assist your survival. Rank them from most important to least important in your opinion.

    These few sentences are free from copyright and any other Bull shit please feel free to use them on your blogs

     

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  •  
    icon
    DerekCurrie (profile), Oct 5th, 2012 @ 2:32pm

    References, Footnotes, Attribution

    Misunderstanding of the Fair Use Doctrine is common and expected. But the fact is that it requires full and adequate attribution of the source of the quotation. It also cannot be lengthy and cannot be used as the basis of profit by the person quoting the source.

    I once found an article I had written about computer security quoted in full on a website by a computer science graduate student. I freaked him out when I wrote to him and asked him for attribution. He had pulled the article out of an email I had posted to an enterprise computing interest list that was discussing the subject. If he had attributed what was posted to me, I would not have bothered him. I never had the impression that he was attempting to pass my work off as his. But I do require, as is the right of any copyright holder, to have my name clearly listed as the source of the material I wrote. We sorted it out, I received attribution and all was fine. He was just a kid who was ignorant of the Fair Use Doctrine and was sorry for his error.

    If Patti O'Shea had clearly designated the source of the quoted material, I doubt this problem would have occurred as no author wants to be marked as a venomous villain. Free marketing is of benefit to an author (a lesson the RIAA and MPAA can't get into their Neanderthal craniums). But when one is directly quoted at length, an author can't help but feel ripped off and damaged. That's not going to change. Without attribution I see nothing wrong in HS's response. It was their right. Instead I know that next time Patti O'Shea will consider what is required to fulfill one's end of the Fair Use Doctrine.

     

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    •  
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      Killercool (profile), Oct 5th, 2012 @ 2:45pm

      Re: References, Footnotes, Attribution

      Fair use does not now, nor has it ever, required attribution. What you are talking about is "plagiarism," and that is a concept that only has immediate teeth in academia. While plagiarized work will (eventually) hurt your reputation, as long as it is within the foggy and treacherous bounds of fair use, it is legal. Just stupid.

       

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        DerekCurrie (profile), Oct 5th, 2012 @ 3:10pm

        Re: Re: References, Footnotes, Attribution

        No. I remain entirely correct. Sorry Killercool. In fact, I don't know what point you are trying to make.

        I decided, as author, what was adequate in the case of quoting my entire article. The full quotation didn't hurt me. It didn't deprive me of any profit. The graduate student made no profit from my article. Under those circumstances, I consider it to be 'Fair Use' to quote my article for the benefit of others. Just provide full attribution.

        Your reference to 'academia' makes no sense at all. The same rules, the same rights of the source author, remain in all circumstances.

        You actually missed my point entirely. Please do try harder. Repeating myself: "If Patti O'Shea had clearly designated the source of the quoted material, I doubt this problem would have occurred." But it is entirely up to the author regarding how to respond. IOW: There was no 'Fair Use' in Patti O'Shea's post because there was no attribution. Quoting ANYTHING written by ANYONE ELSE who owns the copyright requires attribution. There is no such thing as a free quotation of another person's work. That is no one's right at any time, in or out of academia. If you are attempting to disagree, I would have to quote you: "Just stupid."

        Stamping your feet and insulting the messenger, or writing articles attempting to berate a copyright holder for asserting their rights, changes nothing at all.

         

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        •  
          identicon
          Anonymous Coward, Oct 5th, 2012 @ 3:52pm

          Re: Re: Re: References, Footnotes, Attribution

          Quoting ANYTHING written by ANYONE ELSE who owns the copyright requires attribution. There is no such thing as a free quotation of another person's work.


          Naturally. See Berne Convention Article 6bis(1)
          Article 6bis
          Moral Rights:
          1. To claim authorship; to object to certain modifications and other derogatory actions;. . . . .


          (1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

          . . . .


          Just take that Berne Convention 6bis(1) article straight into a U.S. court. The district judge will fix you up right away.

           

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            icon
            Gwiz (profile), Oct 5th, 2012 @ 5:33pm

            Re: Re: Re: Re: References, Footnotes, Attribution

            Just take that Berne Convention 6bis(1) article straight into a U.S. court. The district judge will fix you up right away.

            I can't tell if you are being sarcastic here or what, but what is in the Berne Convention doesn't mean jack squat to a US District court unless it's something that is codified in US law. The Berne Convention is an international agreement, not US law.

             

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          •  
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            Alana (profile), Oct 6th, 2012 @ 12:29am

            Re: Re: Re: Re: References, Footnotes, Attribution

            I sure hope you attributed DerekCurrie for quoting his comment.

            /s

             

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        •  
          icon
          art guerrilla (profile), Oct 6th, 2012 @ 3:14am

          Re: Re: Re: References, Footnotes, Attribution

          ...b-bu-but *you* stamping your feet and insisting what you say is right when it isn't, is, um, what exactly ? ? ?

          i'm sorry your wrongheaded explanation doesn't comport with reality, but your repeated insistence that it is correct, does not bode well for a thing we call 'learning' on your part...

          point the last: under the DerekCurrie skizzie of copywrongness, evidently we are totally dependent upon THE AUTHOR'S (rightsholders) interpretation of what *THEY* think constitutes 'fair use' ? ? ?

          ...and *that* makes sense -not to mention equity- to you ? ? ?
          whale fail

          art guerrilla
          aka ann archy
          eof

           

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    •  
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      Mike Masnick (profile), Oct 5th, 2012 @ 4:05pm

      Re: References, Footnotes, Attribution

      Misunderstanding of the Fair Use Doctrine is common and expected. But the fact is that it requires full and adequate attribution of the source of the quotation. It also cannot be lengthy and cannot be used as the basis of profit by the person quoting the source.

      Both of your statements are false. Fair use does not require either attribution or that no profit be made. You don't seem to understand fair use. Those two things may weigh on whether or not something is considered fair use, but to claim that both are required are simply false.

      For example, we've shown many cases in which things were judged to be fair use when used in a commercial context.

       

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    •  
      identicon
      Anonymous Coward, Oct 5th, 2012 @ 4:32pm

      Re: References, Footnotes, Attribution

      Yeah, I marked this as funny. Please point to where in copyright law it states that attribution is necessary, because, well, that's so wrong it makes my head hurt. Same for your comment regarding commercial uses. We realize that you want it to be true, but it really just isn't.

       

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      •  
        identicon
        Anonymous Coward, Oct 5th, 2012 @ 5:05pm

        Re: Re: References, Footnotes, Attribution

        Please point to where in copyright law it states that attribution is necessary


        11 U.S.C §1125(a) Civil action
        (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
        (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or  . . . 

        shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.


        Your lawyer can take that section directly into court.

        It's called a "Dastar claim".

         

         

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        •  
          icon
          Gwiz (profile), Oct 5th, 2012 @ 5:25pm

          Re: Re: Re: References, Footnotes, Attribution

          Ummm. Your link and reference are to 15 U.C. ch.22 which is trademark law (Lanham Act to be exact) and has nothing to do with copyright law or the Fair Use Doctrine.

          Even Title 11 (which is what you type on the link) wouldn't apply since that is bankruptcy law.

           

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          •  
            icon
            Gwiz (profile), Oct 5th, 2012 @ 5:37pm

            Re: Re: Re: Re: References, Footnotes, Attribution

            Oof. Typo.

            Meant to type 15 U.S.C. ch.22.

             

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          •  
            identicon
            Anonymous Coward, Oct 5th, 2012 @ 6:12pm

            Re: Re: Re: Re: References, Footnotes, Attribution

            Your link and reference are to 15 U.C. ch.22 which is trademark law (Lanham Act to be exact)


            Right you are: Typoed 11 for 15. Luckily the link does point to section 43(a) of the Lanham Act.

            As for it's relevance to copyright, see The House Report on the Berne Convention Implementation Act of 1988 p.18
            The Director General of the World Intellectual Property Organization, Dr. Arpad Bogsch, has stated that:

            [I]n my view, it is not necessary for the United States of America to enact statutory provisions on moral rights in order to comply with Article 6bis of the Berne Convention. The requirements under this Article can be fulfilled not only by statutory provisions in a copyright statute but also by common law and other statutes. I believe that in the United States the common law and such statutes (Section 43(a) of the Lanham Act) contain the necessary law to fulfill any obligation for the United States under Article 6bis.

             

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            •  
              icon
              Gwiz (profile), Oct 5th, 2012 @ 7:11pm

              Re: Re: Re: Re: Re: References, Footnotes, Attribution

              Ok. So you are arguing that because the WIPO states that Section 43(a) of the Lanham Act somehow applies to copyright (?) that would trump existing case law concerning copyrighted text and fair use?

              Interesting argument. Not sure you will get very far with it though.

               

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              •  
                identicon
                Anonymous Coward, Oct 5th, 2012 @ 7:17pm

                Re: Re: Re: Re: Re: Re: References, Footnotes, Attribution

                Interesting argument.

                So you're arguing that the United States of America is failing to meet its solemn, international undertakings under Article 6bis of the Berne Convention?

                Not sure you will get very far with it though.

                Well, perhaps Senator Leahy agrees with you.

                But the argument sure had the Ninth Circuit convinced. And the Second Circuit seemed to be tagging along.

                 

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                •  
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                  Mike Masnick (profile), Oct 5th, 2012 @ 11:10pm

                  Re: Re: Re: Re: Re: Re: Re: References, Footnotes, Attribution

                  So you're arguing that the United States of America is failing to meet its solemn, international undertakings under Article 6bis of the Berne Convention?


                  Actually, many people have argued that very thing for years. But most people think that it got around that issue with VARA, or part of 17 U.S.C. 106A. That granted such moral rights... but limited it to visual artists... to which most people said "close enough."

                  Either way, the idea that fair use requires attribution is simply not supported anywhere. It can be *a* factor that a court uses to determine fair use, but it is never considered a requirement.

                   

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                  •  
                    identicon
                    Anonymous Coward, Oct 6th, 2012 @ 5:59am

                    Re: Re: Re: Re: Re: Re: Re: Re: References, Footnotes, Attribution

                    ... most people said "close enough."


                    OK. It's Saturday morning now. Friday night is over.

                    Comprennez-vous «SA» ?   “Situational Awareness” ?   More bluntly: Do you understand the leading cause of CFIT —controlled flight into terrain— accidents?

                    Classic attack pattern: Bogon.... Bogon.... Now you need to very quickly identify the real threat axis.

                     

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        •  
          icon
          Mike Masnick (profile), Oct 5th, 2012 @ 6:05pm

          Re: Re: Re: References, Footnotes, Attribution

          11 U.S.C §1125(a)

          That's trademark law, from the Lanham Act, not copyright law. While there is fair use issues for trademark law, that has nothing, whatsoever, to do with fair use under copyright law, which is found in 17 USC 107.

           

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    •  
      identicon
      Anonymous Coward, Oct 5th, 2012 @ 8:18pm

      Re: References, Footnotes, Attribution

      "Misunderstanding of the Fair Use Doctrine is common and expected."

      Mirrors, apparently, are not.

       

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  •  
    identicon
    average_joe, Oct 5th, 2012 @ 3:15pm

    The dissemination of information critical to surviving the Desert Survival Situation are the copyright of Human Synergistics. You are not entitled to said information. If you can't survive a desert situation without information even remotely similar to the information for which copyright is owned by Human Synergistics, you should just die in the desert.

    Just like how blind people are not entitled to e-books.

     

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  •  
    identicon
    Dave Nelson, Oct 5th, 2012 @ 4:11pm

    A True Solution

    The real problem, as I see it, is that NOBODY actually litigates these abominations (bullies don't like people standing up to then, you know). Somebody needs to establish a legal fund that would take these phony cases to court the minute they are filed and fight them all the way to a judgement. Although judges push for them because of their overwhelming case loads, I would encourage that legal defense team to reject any and all attempts to settle. You might look into crowd funding (no, not Kickstarter or it's ilk). I suspect that if enough of these people get their britches sued off, AND we get enough established precedent built up, that most trolls will die of starvation (at least one hopes). If the bullies don't actually file a case, which does actually cost money, you know, the legal team should at least fire off a C&D to them.

     

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  •  
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    Silver Fang (profile), Oct 5th, 2012 @ 4:31pm

    The first copyright laws were used as a form of censorship by kings and the Catholic Church to destroy books about subjects they considered taboo.

     

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    •  
      identicon
      Dave Nelson, Oct 5th, 2012 @ 11:52pm

      Re:

      The Statute of Anne, passed by Parliament in 1710, established time-limited monopolies for publishers of books. The Monarchs and the Catholic Church had fiat power to quash anything they didn't like (see Galileo). The initial copyright laws were mostly insisted on by the publishers to prevent others from copying textbooks and the like. Sorta like what's happening now, but with a whole lot less money involved.
      http://en.wikipedia.org/wiki/History_of_copyright_law

       

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    hmm (profile), Oct 6th, 2012 @ 1:45pm

    My version

    You're on a plane with a member of the MPAA, the RIAA, a politician, a copyright maximalist a loaded gun (which only has 1 bullet), a lightweight bicyle chain and an open padlock (no key).

    Rate the items in how you'd use them to make the world a better place.


    ---
    The top scoring answer is of course to aim to plane at the ground and padlock the exit doors.....
    ---

     

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    •  
      identicon
      Anonymous Coward, Oct 6th, 2012 @ 9:35pm

      Re: My version

      Answer: Give them the padlock and chain to use as they see fit. Take the loaded gun and blow your own brains out, improving the world as a whole.

      See how that works?

       

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    •  
      identicon
      Anonymous Coward, Oct 11th, 2012 @ 1:32am

      Re: My version

      Add in a freetard and we have no-brainer discussion.

       

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  •  
    identicon
    Slicerwizard, Oct 7th, 2012 @ 1:25pm

    a_j FTL

    Post #78 - Mike wipes the floor with average_joe's carcass. LMAO!

    Thanks, Mike - made my afternoon.

     

    reply to this | link to this | view in chronology ]


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