Open Letter To Human Synergistics International In Response To Your Accusation That Techdirt Is Infringing

from the fair-use,-learn-it,-love-it dept

To Silvie van Etten:

Thank you for your letter on November 23rd, 2012, (which we have reposted below in its entirety, minus your contact info) in which you mistakenly suggest that Techdirt has infringed the copyrights of your company, Human Synergistics, via its post from October 5th, 2012, entitled Copyright As Censorship: Author Removes Blog Post After Being Threatened For Quoting 4 Sentences. First of all, it is astounding that you do not appear to recognize the irony of threatening us over a blog post that goes into detail as to why someone else's use of a tiny snippet of your company's work was quite clearly fair use under US copyright law. In fact, it leads one to wonder if you even read the post in question before sending your letter.

Even if we ignore the question of whether or not that original blog post by Patti O'Shea constituted fair use, I can assure you that Techdirt's use is fair use. Furthermore, your claim that a lack of permission to quote your silly exercise (solely for the purpose of explaining your overaggressive use of copyright law to censor people against your own best interests) is somehow "a direct violation of our copyright" is absolutely false. It is not just false, but an exaggeration of the rights you hold under copyright law -- a situation called "Copyfraud" by legal scholar Jason Mazzone.

While you appear to be in Germany, I note that Human Synergistics International is actually based in the US. We, too, are a US company, with US servers, targeting a mostly US audience. As such, the only copyright law that would reasonably apply is US copyright law, which has clear support for "fair use," especially when used in reporting and comment/criticism. According to your LinkedIn page, your law degree is from the somewhat infamous Thomas M. Cooley law school in the US, so you must be familiar with US copyright laws, and fair use in particular. While fair use laws are, at times, open to interpretation, there are few situations as obviously and clearly fair use as ours. As such, we reject your claim that we have violated your copyrights as well as your request to remove the quoted sections from our blog. When something is fair use it neither requires permission nor is it infringement, your suggestion to the contrary notwithstanding.

Our use is fair use and not infringing. While courts are free to use their discretion in determining what constitutes fair use in the US, it is common to focus mainly on the four factors prescribed in copyright law. Looking over those four factors, our use is without a doubt fair use.

The first factor is the "purpose and character of the use." Section 107 of the Copyright Act notes that fair use is explicitly "for purposes such as criticism, comment, news reporting." Our use of your text was, in fact, for all three. We criticized your ridiculous abuse of copyright law to attempt to censor a website discussing your exercise. We further commented on the matter, using the text in particular to show why your original claim of copyright infringement (leaving aside this latest attempt to double down) would likely fail on fair use grounds. Finally, we clearly used the text in the course of news reporting, as we were reporting on your excessive behavior, which we believed (and still believe) was a newsworthy event.

Furthermore, courts will often look at whether or not the use is "in the public interest" (see Online Policy Group v. Diebold). Once again, this supports fair use, as it is clear that a company that chooses to abuse copyright law to silence public speech needs to be exposed publicly, so that others who may choose to do business with such a company know the sort of operation they are dealing with. Given that it was in the public interest to expose your actions, we again stand by our assertion that our use was fair. In addition, considering we were providing commentary on the over-aggressive nature of your initial takedown, there is no other way to accurately explain your abuse of copyright law without also sharing the brief snippet of text. This, too, supports the fair use argument.

Courts also explore whether or not the use is "transformative," (see: Cambell v. Acuff-Rose). Once again, the answer is a resounding yes. At no point were we seeking to use your content to have a bunch people sit around and actually take part in the exercise, but rather to specifically demonstrate your company's misuse of copyright law -- a purpose that is transformatively different from the purpose you appear to envision for the text.

The second fair use factor is "the nature of the copyrighted works." Again, this prong supports our claim that the use is fair and not infringing. Our original post talked about how your company appears to abuse the purpose and the letter of copyright law to threaten and bully anyone who quotes a very tiny portion of a common "group training" exercise, involving stranded travelers and a small list of items which need to be prioritized for travel and survival. As we noted in our original post, there are a variety of similar exercises, all based on the same premise. That, alone, suggests that the short description of the exercise -- consisting of 4 sentences and 64 words -- has, at most, only weak copyright protection on the few new creative elements. Furthermore, the "list" of items is, not unlike a "recipe," merely a list of facts and, for the most part, not copyrightable under US law. Finally, part of the text that you ask us to delete is, in fact, something that we wrote, "she then lists out the items," rather than something from the text you claim copyright over.

The third factor is "the amount and substantiality of the portion used." Here, again, it supports that our use -- the tiny segment of the exercise that was quoted in our blog post -- is fair. As anyone who has done one of these exercises knows full well, the point of the exercise is not the 4 sentence description, nor the list of items, but the actual group prioritization effort, combined with the "expert" prioritization that is often revealed at the end of the exercise in addition to various explanations of what the exercise means / what participants should have learned. Since the amount that we copied was such a tiny part of the larger exercise, and a minor part of it, at that, this again weighs in favor of fair use. Furthermore, even if you were to argue that we somehow did use a substantial portion, your argument would fail. As the Supreme Court makes clear in Harper & Row, Publishers, Inc. v. Nation Enters, "substantial quotations might qualify as a fair use in a review of a published work or a news account." Our use clearly was a news account.

Finally, the last factor is "the effect of your use upon the potential market for the copyrighted work." It's important to note here, (again referencing back to the Campbell case) that the courts are clear here that they are not addressing whether or not the criticism harms the market, but whether or not the direct use harms the market. We freely admit that our criticism of your despicable copyright practices may lead organizations to think twice about doing business with your company. But, as the Supreme Court noted, while "a scathing theater review kills demand for the original, it does not produce a harm cognizable under the Copyright Act." In our case, the specific use of the text clearly does not harm the potential for your market, because we were not using it in a competitive manner at all. No one would read our post and use that to administer the exercise in question.

It's that last point that is the most bizarre in all of this. The original blog post, by Patti O'Shea, which we were commenting upon, said nothing negative about your organization or the exercise, which she seemed to enjoy. Most reasonable persons would actually have read it as an endorsement of the exercise itself, which would reflect well on you and could lead more people to wish to hire your organization or license the specific exercise details. Thus, the end result of your bizarre copyright extremism is that you caused a blog post that would likely drive more business for you to be disappeared from the internet. In response, you received criticism from us. And, rather than change your ways, you have now dug yourself an even bigger hole by threatening us with what appears to be a clearly bogus threat. So you have gone from one mostly positive blog post to an increasing series of negative blog posts criticizing your activities.

It is unclear how that series of responses from you furthers Human Synergistics' business interests, which must be a part of your job.

Finally, you should make yourself aware of the Lenz v. Universal case, in which the courts have noted that copyright holders have an obligation to take fair use into account prior to issuing a takedown notice under copyright law. While your initial notice is deficient in meeting the qualifications of a DMCA Section 512 takedown notice under copyright law, if you seek to send a complying takedown notice, understanding the implications of Lenz v. Universal would probably be wise.

While I hope that this response, posted publicly on our site and sent to you directly, constitutes the end of this discussion, I have had this letter reviewed by multiple lawyers who are experts in copyright, fair use and free speech. If you wish to continue this fruitless effort, I will be happy to put you in touch directly with lawyers who will be representing us in having a court disabuse you of your misunderstanding of copyright law.

Sincerely,

Michael Masnick
CEO and Editor
Floor64 Inc. and Techdirt

To Whom It May Concern:

It has come to our attention that you are displaying substantial text from the Desert Survival Situation™ on your website at: http://www.techdirt.com/blog/?tag=desert+survival+scenario and http://www.techdirt.com/articles/20121005/08405820620/copyright-as-censorship-author-removes-blog-post-after-being-threatened-quoting-4-sentences.shtml 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 your organization permission to reproduce this exercise in any format. Therefore, this action constitutes a direct violation of our copyright.

We respectfully request that you immediately remove the following sections: 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. - from your website and discontinue any further unauthorized use, whether in electronic or hard copy form, of Human Synergistics' materials.
Human Synergistics offers a wide range of simulations, diagnostic surveys, and support materials for organizational training and development. Feel free to contact us for additional information or to purchase any of these materials.
This letter is written without prejudice to any of Human Synergistics’ rights, all of which are expressly reserved. Please acknowledge receipt of this letter via email within five (5) business days.

Thank you in advance for your cooperation.

Silvie van Etten, J.D.

Untere Steinhauser Str. 1
Ratingen, 40882
Germany


Reader Comments (rss)

(Flattened / Threaded)

  •  
    icon
    Jeff (profile), Nov 29th, 2012 @ 9:47am

    Firing up the popcorn maker! Please keep us (your readers) informed of the developments.

     

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    •  
      icon
      pixelpusher220 (profile), Nov 29th, 2012 @ 10:23am

      Re:

      Only gripe is it doesn't look like a formal DMCA request. Shame the first response wasn't 'Could you send us the formal complaint please?"

      And then nail them for perjury :)

       

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      •  
        identicon
        DCX2, Nov 29th, 2012 @ 10:49am

        Re: Re:

        Unfortunately, they can't be nailed for perjury. The only statement that is sworn is that they own the copyright. They can own the copyright and engage in copyfraud and they have not committed perjury.

         

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        •  
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          Corwin (profile), Dec 1st, 2012 @ 6:56pm

          Re: Re: Re:

          Might be interesting to check whether the notice was sent by the actual copyright owner. We've read enough about those who don't even do that right.

           

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  •  
    identicon
    S. T. Stone, Nov 29th, 2012 @ 9:49am

    Ladies and gentlemen, I give you the new textbook definition of 'served'.

     

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    identicon
    Anonymous Coward, Nov 29th, 2012 @ 10:02am

    Wow

    That sure is an awful lot of words just to say "you're crazy, get bent". I love it.

     

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  •  
    identicon
    Travis, Nov 29th, 2012 @ 10:03am

    Awesome

    That's just... so... touching and awesome. It brought a tear to my eye and joy to the cockles of my heart.

     

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  •  
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    sehlat (profile), Nov 29th, 2012 @ 10:04am

    F.O. as an art form

    Wow. Just ... wow.

     

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  •  
    identicon
    Scott, Nov 29th, 2012 @ 10:04am

    A work of art

    Now, that letter is a work of art! Good thing it's protected by copyright......

     

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  •  
    identicon
    Call me Ak, Nov 29th, 2012 @ 10:04am

    I can just imagine the gleeful grin on Mike's face when he opened this correspondence. Techdirt have certainly not waste the opportunity.

     

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  •  
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    Watchit (profile), Nov 29th, 2012 @ 10:04am

    Mike, you are my hero :|

    Also this is entertaining as hell.

    :popcorn.gif:

     

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  •  
    identicon
    dennis deems, Nov 29th, 2012 @ 10:07am

    Pure Awesome

    So glad I tuned in today.

     

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  •  
    identicon
    in_to_the_blue, Nov 29th, 2012 @ 10:07am

    InB4 average_out_of_the_darryl_joe

     

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  •  
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    weneedhelp (profile), Nov 29th, 2012 @ 10:07am

    Is this WWE?

    Cuz a smackdown was just handed out.

     

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  •  
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    jakerome (profile), Nov 29th, 2012 @ 10:08am

    He passes to the man...

    and BOOM! goes the dynamite.

    Well said, Mr. Masnick.

     

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  •  
    identicon
    Gee, Nov 29th, 2012 @ 10:09am

    I bet Mike has just been itching for someone as naive as this, to send him a DMCA compliant.

     

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  •  
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    Rikuo (profile), Nov 29th, 2012 @ 10:10am

    LOL, fucking OWNED her! Nice one Mike! I better hope someone has an anti-rabies shot handy, cause I predict that this will cause her to start foaming at the mouth...

     

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    That One Guy (profile), Nov 29th, 2012 @ 10:11am

    I hope you had as much fun writing that as I did reading it, that was a rebuke of epic proportions.

     

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    identicon
    Anonymous Coward, Nov 29th, 2012 @ 10:12am

    *slow clap*

     

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  •  
    identicon
    Nate, Nov 29th, 2012 @ 10:13am

    That's far more work than this copyright troll deserves. I would have simply cited Arkell v. Pressdram and let them draw their own conclusion.

    FYI:
    http://en.wikipedia.org/wiki/Private_Eye#Litigation

     

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    identicon
    Anonymous Coward, Nov 29th, 2012 @ 10:15am

    Everybody quote the 4 sentences EVERYWHERE

     

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    •  
      identicon
      in_to_the_blue, Nov 29th, 2012 @ 10:18am

      Re:

      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.

      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.


      (atleast i was able to take out the techdirt "She then lists out the items:" part)

       

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        art guerrilla (profile), Nov 29th, 2012 @ 12:12pm

        Re: Re:

        c'mon, this is easy peasy japanesy:
        you take the .45 w/bullets, shoot the others and take their stuff too, then use the jackknife to cut them up and eat them...
        geez, don't those people know *anything*...

        art guerrilla
        aka ann archy
        eof

         

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      •  
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        Watchit (profile), Nov 29th, 2012 @ 3:42pm

        Re: Re:

        I think I'll join in :D

        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.

        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.

         

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        •  
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          Alana (profile), Nov 29th, 2012 @ 7:02pm

          Re: Re: Re:

          Let's make this a meme.

          You're on a plane...

           

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        •  
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          Karl (profile), Nov 30th, 2012 @ 1:02am

          Re: Re: Re:

          I think I'll join in

          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 classmates are a Catholic priest, a Rabbi, a Chicano, a black guy, a guy that was just released from prison, a surrealist, an 80's feminist, a Polish woman, Mel Gibson, and a melancholy horse.

          You have 10 items with which to survive. Rank them from funniest to most offensive.
          - a nickel
          - a very inexpensive prostitute
          - a car door
          - a choir boy
          - a vibrator
          - your enormous cock
          - the fish
          - natural sweetener formed in the shape of female mammary glands
          - (looks around before telling joke)
          - "that's not funny"

           

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  •  
    identicon
    Anonymous Coward, Nov 29th, 2012 @ 10:15am

    Finally, you should make yourself aware of the Lenz v. Universal case, in which the courts have noted that copyright holders have an obligation to take fair use into account prior to issuing a takedown notice under copyright law. While your initial notice is deficient in meeting the qualifications of a DMCA Section 512 takedown notice under copyright law, if you seek to send a complying takedown notice, understanding the implications of Lenz v. Universal would probably be wise.

    LOL! Lenz merely says that to successfully argue misrepresentation, Mike would have to prove subjective bad faith. Good luck with that one, Mike. I'm sure they're shaking in their boots.

     

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    •  
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      DannyB (profile), Nov 29th, 2012 @ 10:20am

      Re:

      I think that any further action on their part after Mike's clear and detailed letter would constitute bad faith.

       

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    •  
      identicon
      in_to_the_blue, Nov 29th, 2012 @ 10:23am

      Re:

      !!! omg i knew one of you'd show up sooner or later

      is it OOTB? is it darryl? average joe? take a guess folks

      i'm going with darryl

       

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    •  
      identicon
      Anonymous Coward, Nov 29th, 2012 @ 10:35am

      Re:

      Let's see, who to believe here:

      The guy that had the backup of several experts and that generally knows what he is doing, or the anonymous coward spewing out nonsense?

      Man, this is a tough one. I'm gonna need a minute.

       

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

    •  
      identicon
      Anonymous Coward, Nov 29th, 2012 @ 10:47am

      Re:

      So, out of all the points made, you decide that only one of them has a problem by your interpretation or the ruling. Therefor the entire article is a joke?

       

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    •  
      identicon
      Anonymous Coward, Nov 29th, 2012 @ 10:59am

      Re:

      From Lenz v. Universal:
      One might imagine a case in which an alleged infringer uses copyrighted material in a manner that unequivocally qualifies as fair use, and in addition there is evidence that the copyright owner deliberately has invoked the DMCA not to protect its copyright but to prevent such use. See, e.g., Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1204-05 (N.D.Cal.2004) (suggesting that the copyright owner sought to use the DMCA "as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property").

      Going forward with a DMCA notice to silence criticism after fair use has been clearly documented sounds like just what the judge had in mind.

       

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    •  
      identicon
      anon, Nov 29th, 2012 @ 12:37pm

      Re:

      You actually posted a quote and did not read it, seriously look at this little titbit that YOU copied and pasted then read your comment again...

      " if you seek to send a complying takedown notice, understanding the implications of Lenz v. Universal would probably be wise"

      Now do you understand where you made a complete fool of yourself?

       

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  •  
    identicon
    Anonymous Coward, Nov 29th, 2012 @ 10:20am

    Techdirt is out MONEY on a False claim!

    Techdirt should ask for damages!

     

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    The Infamous Joe (profile), Nov 29th, 2012 @ 10:20am

    Ironic

    Her LinkedIn page says she's the "Business Advisor".

    I'd say she gave very poor business advice.

     

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    BeaverJuicer (profile), Nov 29th, 2012 @ 10:22am

    "When in doubt, poke it with a stick" falls short, when "it" is

    a) a beehive
    b) Pirate Mike

    Well Served.

     

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    PW (profile), Nov 29th, 2012 @ 10:23am

    This post needs a new title :)

    In reading this post, I was quickly reminded of the old SNL with Dan Ackyroyd's line to Jane Curtin in Weekend Update's point-counterpoint segment, with a slight modification: "Human Synergistics International, you ignorant slut!" :)

     

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    Wally (profile), Nov 29th, 2012 @ 10:25am

    Mike, I'm pretty sure that if someone quoted them in a comment here on TechDirt without citing the source, TechDirt is protected under not only the Fair Use Clause in Section 512, but also under service provider protections as well....which are in Section 512, Article 10 (or 12...bit foggy there), Paragraph's A,B,C,D,E,H, and J :-)

    Awesome :-)

     

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    identicon
    Anonymous Coward, Nov 29th, 2012 @ 10:25am

    One word

    pwned.

     

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    Josh in CharlotteNC (profile), Nov 29th, 2012 @ 10:25am

    No mention of SLAPP

    Isn't TD/Floor64 based in California, with a good SLAPP law?

    'cause the list of reasons why that lawyer was wrong, stupid, stupidly wrong, and also destined to completely and utterly fail could be longer with that mention.

     

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    Silver Fang (profile), Nov 29th, 2012 @ 10:42am

    Copyrighted? That? That's a mental exercise we did when I was in junior high. You have to decide what you want to take with you from the crash site in order to survive. I don't even see how that can be copyrighted.

    One doddit, pwned!

     

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  •  
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    Ehud Gavron (profile), Nov 29th, 2012 @ 10:56am

    Well Said!

    You just made my day.

    I bet this indeed is the end of it ... but I sure would love if they dug their donkey heels in and fought :)

    Ehud

     

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  •  
    identicon
    Anonymous Coward, Nov 29th, 2012 @ 11:04am

    How about this....

    You’re on a hangglider that crashed in the Sahara desert. The pilot and copilot are dead, but you and your mates are unharmed. Your plane was 50 miles off the course that was filed prior to take off and you crashed 70 miles southeast of a mining camp. You have 10 + 5 items with which to survive. Rank them from most important to least important.

    The items were: a flashlight with two batteries, big knife, aeronautical chart, plastic raincoat, magnetic compass, compresses and bandages, 40 caliber gun with bullets, red, white, and blue parachute, container of salt tablets, 1.0 liters of water per person, copied pages of book titled “Edible Desert Animals”, pair of sunglasses per person, 1.0 liter bottle of alcohol (96%), light summer jacket per person, mirror with makeup light.

    Totally different exercise, right?

     

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      Josh in CharlotteNC (profile), Nov 29th, 2012 @ 11:12am

      Re: How about this....

      Seeing a problem here.

      Since when do hanggliders have copilots? Let alone enough room for you and your mates?

       

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      identicon
      MrWilson, Nov 29th, 2012 @ 11:31am

      Re: How about this....

      Hang gliders have pilots and copilots and you and your mates? I think I realize why it crashed...

       

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  • This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Nov 29th, 2012 @ 11:11am

    Red meat for fanboys, thinking Mike has a victory!

    It's basically the old sympathy ploy: "I'm under attack! Rally to me!" -- And the fanboys jump in, they're SO in need of good news these days.

    So I waited, and yot, there you are, trolling the piece in absence of controversy, hoping to stir up some drama, complete with reference to me and all the people here whose opinion actually matters because isn't just "Mike's the greatest!" jingoism.

    Techdirt is a little micro-cosm of the net that's interesting to study, one reason I read it. Small enough that my posts aren't lost and I can have influence -- though it's only provoking yaps from ankle-biters.

     

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      into_the_red, Nov 29th, 2012 @ 11:15am

      Re: Red meat for fanboys, thinking Mike has a victory!

      Ah, hello there, ootb. It's adorable that you still think you're relevant in any way.

      ...And isn't the "I'm under attack! Rally to me!" shtick what the RIAA and the MPAA use, too?

       

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      Donnicton, Nov 29th, 2012 @ 11:27am

      Re: Red meat for fanboys, thinking Mike has a victory!

      This can't be the real ootb, he forgot to add a completely non sequitur link to the Wikipedia page for the Streisand Effect at the end of his post.

       

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      identicon
      MrWilson, Nov 29th, 2012 @ 11:38am

      Re: Red meat for fanboys, thinking Mike has a victory!

      I don't think Mike needs to rally "fanboys." His response and his consultation with lawyers was all he needed. The publication of the issue just supports the position he's taken numerous times before about the abuse of copyright. Why wouldn't he publish it when it's a perfect example?

      Does anyone think that the number of commenters who approve of the letter affects whether the company will decide to follow through with a real takedown notice? Of course not.

      I love that you think that your opinion matters. You basically just stated that the only opinions that matter are those that disagree with Mike, which just proves you're a troll and nothing more and any statements you make regarding wanting an honest dialogue is hogwash.

      I also love that you think your "influence" does anything other than make you (and by association, the positions you support) look desperate and pathetic.

       

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    •  
      identicon
      Anonymous Coward, Nov 29th, 2012 @ 11:48am

      Re: Red meat for fanboys, thinking Mike has a victory!

      I asked you before, out_of_the_asscrack, and I'll ask you again... what the fuck do you mean when you say "yot"? Is this supposed to be some "phase" again, like your ridiculous //formatting//?

       

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      Machin Shin (profile), Nov 29th, 2012 @ 12:01pm

      Re: Red meat for fanboys, thinking Mike has a victory!

      You really are sad and desperate if you look at this as Mike looking for sympathy. In order for that to have been the case he would have needed to look like he was in some sort of trouble. To me it more looks like a victory dance after winning a rather lopsided fight.

      You might could accuse him of gloating over knocking out a greatly under matched opponent, but definitely can't see where you got the "sympathy ploy" idea from.

       

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      identicon
      Anonymous Coward, Nov 29th, 2012 @ 1:23pm

      Re: Red meat for fanboys, thinking Mike has a victory!

      Actually your posts are so far removed from reality that you are properly ignored by serious readers, voted down, by people you baited and laughed at by people who love the complete nonsense of unadaltered insanity!

      Thanks mate, this one was good! :)

       

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      Gwiz (profile), Nov 29th, 2012 @ 1:36pm

      Re: Red meat for fanboys, thinking Mike has a victory!

      ...complete with reference to me and all the people here whose opinion actually matters...

      Wait. When did your opinion actually matter to anyone?

      I must have missed that, probably because the comment was down voted by all those people who don't think your opinion matters.

       

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        identicon
        Anonymous Coward, Nov 29th, 2012 @ 7:04pm

        Re: Re: Red meat for fanboys, thinking Mike has a victory!

        You can read that sentence as ootb excluding himself from all those whose opinion matters, so all is well.

         

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      Get off my cyber-lawn! (profile), Nov 29th, 2012 @ 3:17pm

      Re: Red meat for fanboys, thinking Mike has a victory!

      on second thought, step on my lawn....i'll turn the sprinklers on!

       

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        Wally, Nov 29th, 2012 @ 4:59pm

        Re: Re: Red meat for fanboys, thinking Mike has a victory!

        ....and when ya get wet it's a sure bet you'll get mad with your petulant mind as you try to slap the living legal Hell out of you when try to you paddle our behind. So step off Human Synergistics or it's more legal trouble that one would ever want yo have which you will definitely find.

         

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      Watchit (profile), Nov 29th, 2012 @ 3:45pm

      Re: Red meat for fanboys, thinking Mike has a victory!

      *Cries into web cam*
      Leave Mike-y alone!

       

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    icon
    Berenerd (profile), Nov 29th, 2012 @ 11:11am

    So this is how you teabag someone in text format.

     

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    identicon
    Anonymous Coward, Nov 29th, 2012 @ 11:12am

    Dear Human Synergistics International,

    Go to hell.

    Love,
    The Internet.

     

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  •  
    icon
    Max Deveault (profile), Nov 29th, 2012 @ 11:17am

    Team Building Exercise And Copyright - Plagiarism?

    I mean seriously. A quote where a source is cited can't be plagiarism.

    I wonder if Human Synergistics asks participants to this team building exercise to sign a waiver of non divulgation.

    Heck, Trade Marked? Let's see what we can come up with .. http://lmgtfy.com/?q=Desert+Survival+Situation

     

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    Violated (profile), Nov 29th, 2012 @ 11:17am

    Fair use is...

    Now that was a bad idea for any person or company to try and censor TechDirt when it would only end in failure and ridicule.

    With that said I did spot one small mistake. The reply claimed Fair Use but then said they did not infringe their copyright. This ignores the one fact that Fair Use is correctly known as "lawful infringement". So it is correct to claim the Fair Use exception but it should have said this is not "unlawful infringement".

    I just see that if someone wants to be an expert on copyright law that they should get the concepts correct.

     

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      identicon
      Anonymous Coward, Nov 29th, 2012 @ 1:05pm

      Re: Fair use is...

      "the fair use of a copyrighted work ... is not an infringement of copyright." 17 U.S.C. § 107

       

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      •  
        identicon
        Anonymous Coward, Dec 1st, 2012 @ 5:27pm

        Re: Re: Fair use is...

        Booyah! Now if Violated has an ounce of integrity, they will post and admit they were mistaken.

         

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    •  
      identicon
      Anonymous Coward, Nov 29th, 2012 @ 1:08pm

      Re: Fair use is...

      Also, from the Lenz v. Universal ruling linked in the article:

      The Supreme Court also has held consistently that fair use is not infringement of a copyright. See e.g., Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 433, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) ("[a]nyone ... who makes a fair use of the work is not an infringer of the copyright with respect to such use.").

       

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    identicon
    Anonymous Coward, Nov 29th, 2012 @ 11:18am

    Seriously, do they even think they have any chance of winning a copyright case against what, one of if not the biggest blog about the subject on the internet?

    Seriously?

    Bunch of clowns, perhaps they are actualy just aiming for the "even bad press is good press" routine.

     

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    •  
      identicon
      Anonymous Coward, Nov 29th, 2012 @ 1:28pm

      Re:

      Nobody is stupid enough to C&D Techdirt and expect to win a case if Techdirt doesn't comply. I do not doubt that !bad press is good publicity" has to be their real plan.

       

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    identicon
    NA Protector, Nov 29th, 2012 @ 11:29am

    Observation

    Mike:
    The sentence you use, "Thus, the end result of your bizarre copyright extremism is that you caused a blog post that would likely drive more business for you to be disappeared from the internet."

    'To be disappeared', wouldn't that be, 'to be erased', or 'to disappear'.

    I'm not trying to nit pick here, just being observant. Your response is great. Odds are that this letter is not sent by Silvie the 'human?', but by Silvie the internet bot who is only as smart as the programmer and as flexible as a cement wall.

     

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      Alex Austin (profile), Nov 29th, 2012 @ 4:16pm

      Re: Observation

      Definition of DISAPPEAR

      transitive verb
      : to cause the disappearance of


      To be disappeared is to be erased in such a way as to make it as if you had never existed.

       

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    identicon
    Nick, Nov 29th, 2012 @ 11:40am

    Poor Bastards.

    Poor bastards, they Carreoned.

     

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    Anonymous Coward, Nov 29th, 2012 @ 11:52am

    TBH, I think Silvie is just a very elaborate troll.

     

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    Overcast (profile), Nov 29th, 2012 @ 12:02pm

    Sounds to me like they are just trying to generate hits on their website...

    Honestly; this claim would never hold up on court - and if it did, in no way could they show damages that would make it worth the time and cost.

     

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    Divide by Zero (profile), Nov 29th, 2012 @ 12:09pm

    A lot nicer than the "fuck off, you twats" response I would have gone with.

     

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    identicon
    Bill Stewart, Nov 29th, 2012 @ 12:16pm

    This isn't a new exercise

    I've seen variants on this exercise multiple times over the last 40 years, and I doubt they were new when I first saw it. The details are different (is it a desert island as opposed to the Mexican desert, exactly what objects do you have and how many of them can you carry, etc.), but it's not like Human Synergistics Inc. invented the concept.

    They were making a derivative work from other versions of the same scenario, and the important part of the exercise is the "how do you make decisions like this as a group", not the specific details of their scenario.

    So it's really egregious of them to try and make a copyright claim against somebody fairly using their derivative work.

     

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      Gwiz (profile), Nov 29th, 2012 @ 1:52pm

      Re: This isn't a new exercise

      Let's make our own derivative version:

      Your company is about to commit copyfraud upon another company and your team has 5 minutes to grab whatever they can from this list of items before the internet catches wind of it and your company goes down in flames:

      - Your current resumes
      - The house plant on your desk
      - A stapler
      - A copy of your 401k plan
      - A roll of toilet paper
      - The number to the unemployment office
      - Parking validation stamp
      - Personal family photos
      - The weird Burger King toy on the IT guy's desk
      - That cute blonde in Accounting's phone number
      - The chipped coffee cup that's now growing Penicillin

       

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        Wally, Nov 29th, 2012 @ 8:02pm

        Re: Re: This isn't a new exercise

        Bonus points if the stapler is a red Swingline stapler ;-)

         

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        Josh (profile), Dec 4th, 2012 @ 8:33am

        Re: Re: This isn't a new exercise

        In order of importance, I would have to rank them thus:

        - Personal family photos
        - Parking validation stamp
        - The number to the unemployment office
        - That cute blonde in Accounting's phone number
        - The house plant on your desk
        - A stapler
        - The chipped coffee cup that's now growing Penicillin
        - The weird Burger King toy on the IT guy's desk
        - A copy of your 401k plan
        - A roll of toilet paper
        - Your current resumes

         

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    Overcast (profile), Nov 29th, 2012 @ 12:24pm

    Oh wait - didn't they use your blog name on that notice?

    Isn't that also infringing?

    If they didn't get permission....

     

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    alanbleiweiss (profile), Nov 29th, 2012 @ 1:24pm

    If this goes to court, I want to know the venue and date. No way in hell I'd want to miss sitting in the gallery laughing uncontrollably.

     

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    alanbleiweiss (profile), Nov 29th, 2012 @ 1:25pm

    hahaha searching for Silvie van Etten, J.D.here in the US on Google brings up this page as the first result. :-)

     

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    identicon
    Anonymous Coward, Nov 29th, 2012 @ 1:26pm

    Nicely done Mike.

    Only thing left to make it worth digging out the popcorn would be a continuation by the willfully blind.

     

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    REM(RND) (profile), Nov 29th, 2012 @ 1:51pm

    scum

    tl; dr

    Dear jerk,
    Bring it!
    Sincerely,
    Mike

     

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    icon
    GeneralEmergency (profile), Nov 29th, 2012 @ 1:58pm

    How timely! I need your help!

    Hey Guys and Gals...

    I'm thinking about deliberately crashing my plane in the Gobi desert. The pilot and copilot will likely die, but me and my classmates are all expected to survive unharmed. My plane will crash 70 miles off the course that was filed prior to take off and will end up 50 miles southwest of a mining camp. I will be taking 16 survival items with me. Please help me rank them from most important to least important.

    A flashlight with four batteries.
    A big jack knife.
    An aeronautical chart of the area
    A big plastic raincoat.
    A magnetic compass.
    Compresses and bandages.
    A 45 caliber handgun with bullets.
    A red and white parachute.
    A bottle of salt tablets.
    A one liter bottle of water per person.
    A book titled "Edible Desert Animals."
    A pair of sunglasses per person.
    A One liter bottle of alcohol (96%).
    A light summer coat per person.
    A makeup mirror.
    Another book titled "How to School Copyright Ignorant Businesses in the Internet Age."

    Thanks in advance!

     

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    Yakko Warner (profile), Nov 29th, 2012 @ 3:26pm

    This won't work for everyone

    TechDirt is a successful blog. This manner of connecting with fans only work because there is a substantial following already. For a smaller blog that doesn't have as large a fanbase established, this would never be an appropriate avenue for success.

     

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    • This comment has been flagged by the community. Click here to show it
       
      identicon
      Anonymous Coward, Nov 29th, 2012 @ 4:32pm

      Re: This won't work for everyone

      if there actually WAS a SUBSTANTIAL following.. but masnick has at best 10 or 15 rabid fans, not that good if you consider the years and years he has spent of his life trying to get those 10 'fans' of his LOL

       

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    gab4moi (profile), Nov 29th, 2012 @ 4:13pm

    I am tempted to comment "owned!", but I am nervous about the possible legal ramifications of such a term...

     

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  • This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Nov 29th, 2012 @ 4:28pm

    blog post that goes into detail as to why someone else's use of a tiny snippet of your company's work was quite clearly fair use under US copyright law.

    For a start masnick, you make money from this web site, therefore you profit from what is posted here.

    Second, YOU are not the person who gets to decide what is FAIR USE or not..

    so what now you are the judge and jury ?? as well as the criminal ??

    I know you might get upset to find out that MASNICK IS NOT THE LAW, he does NOT get to choose what is fair use or not, which is a good thing, because it appears that masnick does not really understand what fair use is, or the law for that matter.

    so if you are so sure it's fair use, Masnick call his bluff and take him to court.

    but it's NOT UP TO YOU to decide what is or is not fair use, even a complete moron like you should be able to work that out..

    once you gain a basic understanding of fair use, and who gets to determine that.. (do you let a bank robber decide if what he did was theft or a withdrawal ?)..

    No masnick you can try to make the case that it is fair use, that is your right, but YOU CANNOT make that ruling yourself..

    for ALL the OBVIOUS REASONS, mainly your displayed complete lack of understanding in anything related to ANYTHING,, especially copyright..

    so go away Masnick, LEARN SOME FACTS and come back when you've received an education..

     

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      identicon
      Anonymous Coward, Nov 29th, 2012 @ 4:41pm

      Re:

      Bwahahaha. Seriously, you come off as a blow hard bully, trying to stare down Mike. Just because he runs a business doesn't preclude his fair use. Still, you get points for bluster.

      Honestly, given the way you come across, please take Mike to court. I don't have nearly enough popcorn to cover the spanking you'd get from Mike and the judge.

      So take your Internet-Bully self back to the dark corner and listen. You just might learn something. However, as self fulfilling prophecy, I'll bet you get defensive and respond brashly again.

      Carry on!

       

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      identicon
      Anonymous Coward, Nov 29th, 2012 @ 5:20pm

      Re:

      Reading the letter was glorious, but after the joy comes this tragedy; the opposition is so mind-bogglingly idiotic that they're unfazed by even the sickest of burns.
      Fortunately, while being too stupid to recognize insults will win arguments, it won't hold up in a court of law. I look forward to reading the judge's statement when he dismisses the case.

       

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      identicon
      Anonymous Coward, Nov 29th, 2012 @ 6:56pm

      Re:

      darryl, darryl, darryl. You're an unimaginative little turd-twat that wouldn't know copyright infringement and fair use if they spit-roasted you. Both in the sexual sense and the culinary sense. Never mind that Masnick already advised Synergistics that if they want to, he welcomes them to drag the matter to court - or the fact that you are neither judge nor jury nor copyright expert, and you declare it's not fair use.

      How's about you deal with yourself like normal, rational human beings with little shitstains, and flush yourself down the toilet?

       

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      btrussell (profile), Nov 29th, 2012 @ 8:22pm

      Re:

      Masnick is THE LAW!

      " so if you are so sure it's fair use, Masnick call his bluff and take him to court."

      I thought it was the other way around.



      When you are out of the blue
      and into the black
      you bleed red
      out of your crack?

       

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    ldownes (profile), Nov 29th, 2012 @ 4:35pm

    Harper and Row v. Nation notwithstanding, I don't think it's entirely clear that the passage quoted qualifies for copyright protection in the first place. Not every bit of written text gets copyright protection, as the Feist case most recently makes clear.

     

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    identicon
    Anonymous Coward, Nov 29th, 2012 @ 8:02pm

    IP law is an abomination that needs to be destroyed

     

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    icon
    btrussell (profile), Nov 29th, 2012 @ 8:28pm

    "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."

    So, when do we start getting sued for informing someone about a topic we learned in school?

    This is, after all, what copyright is about. Keep 'em ignorant.

     

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    The Groove Tiger (profile), Nov 29th, 2012 @ 10:02pm

    You’re on a motherfucking plane that crashed in the motherfucking desert. You have 15 motherfucking items with which to survive. Rank them from most important to least important.

    1 motherfucking cobra
    1 motherfucking black mamba
    1 motherfucking viper
    1 motherfucking anaconda
    1 motherfucking python...

     

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    identicon
    Anon, Nov 30th, 2012 @ 2:06am

    Strike One!!!

    Why is there no three strikes law against these idiots? Oh the irony...

     

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    identicon
    ah yes..., Nov 30th, 2012 @ 1:18pm

    the copyright version of leroy jenkins...

     

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    identicon
    Anonymous Coward, Nov 30th, 2012 @ 4:06pm

    You actually left in the contact info.

     

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    identicon
    sLUDGEmUNKEY, Nov 30th, 2012 @ 4:23pm

    Odd that the passage they are trying to protect is nearly word for word out of the basic survival training text the US military uses in boot camp...

     

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      alanbleiweiss (profile), Nov 30th, 2012 @ 5:26pm

      Re:

      OMG sue the Army! Name Obama as a defendant! Blame McCain! those government bastards. How dare they violate US Copyright laws!

      Terrorists. All of them...

       

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    mermaldad (profile), Nov 30th, 2012 @ 7:18pm

    Too far is not far enough

    I'm a little disappointed that Mike didn't take the time to explain exactly how to file a DMCA takedown notice. They might need help with that, and I think the result would be even more entertaining.

     

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    identicon
    Michael, Dec 1st, 2012 @ 8:28am

    Have any assets in Germany?

    It's all well and good to say this, but if she files a claim in a German court and goes after those assets the US citations are pretty much moot--The German court will be plenty happy to render a decision under German law and reach a judgment enforceable against those assets in Germany (which it could do regardless of whether or not this claim would fail in the USA). And I've no idea what fair use rules are in Deutschland, but they may not be as good as they are here. That's why she didn't write a DMCA-conforming takedown by the by. Her intention would be to file over there, not here. So, before one does this sort of thing, one should look to see where one's assets are, since that's the choice of law issue that actually matters.

     

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    icon
    Seegras (profile), Dec 3rd, 2012 @ 5:20am

    Copyfraud

    ... exists in Germany too, it's called (rather clumsy, because it's coined by courts, not just some lawyer) "Schutzrechtsberühmung".

    And the applicable article regarding the parts quoted by techdirt would be §51:

    "Allowed is the reproduction, dissemination and public rendition of a published work for the use as citation, insofar as the use in its extent is justified by its special use."
    (translation by me, keeping the convoluted structure of the original).

    So no matter which law applies, what techdirt did is still legal.

     

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    trish, Dec 4th, 2012 @ 8:59am

    BOOM.

     

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    Tex Arcana (profile), Dec 4th, 2012 @ 5:10pm

    Hey, "Inhuman Suckergistics InveterateMorons":

    Take your "Desert Survival Situation" and shove it up your collective asses. To quote my grandmother (which quote you may not reproduce in any way shape or form, unless you wish to rush the old battleaxe digging herself out of her hole and beating you with her cane): "I wouldn't piss on y'all if your collective guts were on fire."

    And I certainly will have NOTHING to do with your ghodforsaken collection of extortionist idiots. And if I find out I'm doing business with anyone who is doing business with you, I will pull the plug hard and fast, and take my business to someone who has the sense to disassociate themselves from idiots that like to abuse the law for mere profit.

    Now die in a fire, you jackasses.

     

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


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