Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many

from the we-need-to-exercise-it,-but-it's-still-scary dept

A few weeks back, we wrote about Andy Baio's excellent video concerning the limits of fair use, in particular his awful and soul-wrenching experience being sued for infringement in a situation that was almost certainly fair use. Baio eventually settled for $32,000 rather than deal with a long and expensive trial that might end poorly. Baio points out that even when we have fair use, the fact that you can still be sued and can still have to fight your way through the court system is incredibly scary, and creates a chilling effect on creativity.

Following that, Pat Aufderheide, one of the world's foremost experts on fair use, and someone we've discussed before, wrote a response to Andy's presentation challenging some of the claims he made, and arguing that people need to strongly exercise their fair use rights and that we shouldn't be fearful of such lawsuits. Aufderheide, along with Peter Jaszi, have been creating "best practice" guides in fair use for creators to rely on, hoping that having some clear and accepted guidelines will help creators more confidently express and use their fair use rights.
What happened to Andy Baio is creepy. But Andy inadvertently is making things even worse. He generalizes dangerously from his experience, and spreads wild and false charges in the last part of his presentation. The chilling effects of his talk could be considerable.

He claims, astonishingly, that “fair use is not a law.” Uh, it’s section 107 of the Copyright Act. Like other parts of the law that protect free expression, it is applied by courts case by case; you exercise it in context, and courts take that context into account.  That doesn’t make it “not a law,” nor does it make it impossible to apply. Creative people make judgments all the time about whether our works are obscene, libelous or treasonous, for example; there are no bright lines there, either, but we act with confidence, knowing the law is on our side.

True and False.

Andy warns ominously that “anyone can sue you for anything, always, and even without grounds.” Yup. That is true, and just as true for obscenity, libel, or treason charges, and in a million other places in life. If someone slips on the sidewalk in front of your house after a snowstorm, or chokes on an appetizer at your dinner party, or objects to your choice of lawn furniture, they can sue you. Copyright trolls like Prenda are suing people who have done nothing at all. But we somehow conduct our lives and even have dinner parties knowing this ugly reality.

He warns fellow remixers everywhere, “fair use will not save you,” and “nothing you have ever made is fair use.”  Whoa. Neither of these statements is true.

When two people who I normally agree with are in disagreement with each other, I sit up and take careful notice. It surprised me at first to see these two clear supporters of remix culture and of fair use disagreeing so vehemently with each other. I think they both make points that are correct, as well as points that are exaggerated for effect. I think that the two would actually agree more than they disagree, and the disagreements are much more in the margin than is implied above.

While Aufderheide is correct that there are lots of things that people can sue you over, those kinds of lawsuits are not the same as what Baio was talking about, in a few ways. First, the statutory damages associated with copyright are so out of line with any potential harm created by the situations that Baio is talking about. If the requirement involved some showing of actual damages and/or much lower statutory damages, I would be more inclined to agree with Aufderheide on this point. Second, while she is correct that fair use has been "riding high" in a number of court cases lately, that is not always the case. Fair use determinations by courts quite frequently have the appearance of arbitrariness. I've seen copyright lawyers note that it is possible to make the four factors test in fair use come out on either side in almost any case if you really want to. That uncertainty and that risk is a concern.

I applaud, wholeheartedly, Aufderheide and Jaszi's tireless work at reducing that uncertainty with their attempts to "reclaim fair use." And I hope that one day, the uncertainty will be greatly minimized. But we really are just not there yet. Baio's case is hardly an outlier.

As for Baio's claim about fair use and the law, he was making an inexact statement that within the context did, in fact, make sense. Yes, fair use is a part of the law, but copyright maximalists, and some courts, have treated it merely as a defense, rather than a direct right. This is almost certainly a misreading of the law, because the law states clearly that a fair use is not an infringement ("the fair use of a copyrighted work... is not an infringement of copyright") but if fair use is merely a defense than there would have to first be infringement. So, clearly the courts have misread the law there. However, Baio's statement was about the practical reality of this, in that in order for him to plead fair use, he effectively has to go through a full legal process, which is timely, costly and risky.

I agree that we need to "reclaim" fair use and that one way to do this is to continue to exercise those rights. But I don't think it's right to suggest that relying on fair use is a guaranteed safe place under the interpretations of the law today. Should it be? Yes. Should we strive to drive the law and the judicial decisions in a way that establishes a clear safe place for fair use to occur? Absolutely. And while Aufderheide and Jaszi have done incredible work on that front, the points Baio made still ring true for the vast majority of people who might face the threat of a copyright infringement case concerning a fair use remix, or another transformation of a copyright-covered work.


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    Akari Mizunashi (profile), Apr 30th, 2013 @ 11:18am

    I still find it astonishingly ironic the 4 clauses found in US Copyright law infringed on Patry's original works nearly 30 years ago.

    I'm with Baio on this one. No reason to take a chance when there's far too much at stake, both financially and of reputation.

    As for the "standing up and defending yourself" side of the argument, great in theory, poor in execution, when our entire legal system is designed for people to take the low road (of guilt) rather than an expensive trial. Plea bargains exist in criminal courts and bribery payments in civil courts.

    Innocent until proven guilty my ass.

     

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      Ninja (profile), Apr 30th, 2013 @ 12:08pm

      Re:

      Amen, sister. Both sides provide good arguments that make sense in specific cases. Most smaller artists would go belly up with as much as the settlement Baio achieved. Imagine a full scale trial. I'll second you and say "promote the Progress of Science and useful Arts" my ass.

       

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    Anonymous Coward, Apr 30th, 2013 @ 12:15pm

    Fair use, as it is written right now, cannot be legitimately declared a right. It should be, but it isn't. It's a defense against a lawsuit, but that defense can be picked apart by well-paid lawyers faster tan a corpse picked apart by piranhas. In order to be a right, it needs to be taken for granted until proven otherwise by the plaintiff. The defense having to prove fair use is the same as "guilty until proven innocent" and plaintiffs must be forced into proving an infringement is not fair use. Even so, he costs of fighting a lawsuit are enough that infringement lawsuits end up as another form of SLAPPs, which is why fair use cannot be realistically relied on. Even if you win the case, you lose.

     

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    bob, Apr 30th, 2013 @ 12:16pm

    "Best Practices"?

    Here's a best practice: do your own work. If you're making music, record the tracks yourself. If you're writing a news article, actually do some reporting. Don't clip a huge blockquote and write a two sentence introduction. If you're running a blog and selling ads, don't use "non-commercial" CC photos. Heck, actually pay a photographer or license stock photos. They're not very expensive. In other words, use fair use for what it's designed to do: allow people to reuse snippets to provide context. It's not a way to take from others.

    But somehow I think all of the copryight deniers around here will be arguing against even these "best practices." They'll be saying that a musician has some imaginary "right" to make an album without picking up an instrument simply by "remixing" someone else's work. They'll say that a blogger has some ephemeral "right" to run a news service without paying reporters or photographers.

    Horse manure. Copyright is the union card for artists. Quit denying it.

     

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      Anonymous Coward, Apr 30th, 2013 @ 12:19pm

      WHOOSH!

      Hear that?

      That's the sound of your stupid assaulting other people.

       

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      Anonymous Coward, Apr 30th, 2013 @ 12:23pm

      Re: "Best Practices"?

      "Copyright is the union card for artists"

      Most artists don't even understand copright. It is hard to belive copyright is in an artist's best interest if they can't understand it or benefit from it without bringing in lawyers.

       

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      Leigh Beadon (profile), Apr 30th, 2013 @ 12:28pm

      Re: "Best Practices"?

      All news organizations rely heavily on fair use, bob

       

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      cpt kangarooski, Apr 30th, 2013 @ 12:29pm

      Re: "Best Practices"?

      They'll be saying that a musician has some imaginary "right" to make an album without picking up an instrument simply by "remixing" someone else's work.

      Well, visual artists have a pretty solid case for making a piece of visual art without picking up either pen or brush, simply by remixing someone else's work. It's called collage, and the photomontage type of collage is especially relevant.

      If they're okay, I fail to see why sampling and remixing music would not be, provided it was similarly transformative, at least.

      In other words, use fair use for what it's designed to do: allow people to reuse snippets to provide context

      No, fair use is designed to prevent copyright from going too far and working counter to its goal of promoting the progress of science. Fair uses need not be limited to snippets: time shifting and space shifting both use entire works, rather than snippets. And parodies may use far more of a work than mere snippets as well.

       

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      Anonymous Coward, Apr 30th, 2013 @ 12:37pm

      Re: "Best Practices"?

      They'll be saying that a musician has some imaginary "right" to make an album without picking up an instrument simply by "remixing" someone else's work.
      I agree completely! Down with musicians who just mix together other people's instruments without touching one themselves. What has Beethoven ever done for anyone?

       

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      jameshogg (profile), Apr 30th, 2013 @ 12:41pm

      Re: "Best Practices"?

      "Here's a best practice: do your own work. If you're making music, record the tracks yourself. If you're writing a news article, actually do some reporting. Don't clip a huge blockquote and write a two sentence introduction."

      Derivative artists have rights to their fruits of labour. John Locke would have absolutely detested this line of thinking.

      " If you're running a blog and selling ads, don't use "non-commercial" CC photos. Heck, actually pay a photographer or license stock photos. They're not very expensive."

      The whole point about CC is that the author has given permission. Even copyright advocates would call you out on that.

      " In other words, use fair use for what it's designed to do: allow people to reuse snippets to provide context. It's not a way to take from others."

      Free speech and rights for derivative artists, actually. I can provide context for what I am talking about without needing to take snippets, but you don't hear me saying there should be no Fair Use on that basis. Because that would be stupid.

      "But somehow I think all of the copryight deniers around here will be arguing against even these "best practices." They'll be saying that a musician has some imaginary "right" to make an album without picking up an instrument simply by "remixing" someone else's work. They'll say that a blogger has some ephemeral "right" to run a news service without paying reporters or photographers."

      If you've really got the balls to see this through, then call for the shutting down of deviantArt and the criminalisation of fan art/fan fiction. I'd admire you for being consistent.

      "Horse manure. Copyright is the union card for artists. Quit denying it."

      An assurance contract is the union card, actually. Crowdfunding/ticket admission is the ultimate Occam's Razor explanation. Both original and derivative artists have their rights protected.

       

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      jupiterkansas (profile), Apr 30th, 2013 @ 12:43pm

      Re: "Best Practices"?

      In other words, limit your creativity in very narrow, accepted ways and ignore the sea of media you and your audience is swimming in and you'll be fine. You must be some artist.

       

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      Anonymous Coward, May 1st, 2013 @ 12:53pm

      Re: "Best Practices"?

      If fair use is designed only to allow snippets to provide context then section 107 needs to be rewritten because the statue clearly provides for far far more than that alone.

      I love how you talk about 'ephemeral' and 'imaginary' rights and then point to actual exercise of real property rights as examples to defend copyright. It's so ludicrous.

       

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    Anonymous Coward, Apr 30th, 2013 @ 12:30pm

    the biggest problem with all laws is that even when 100% correct it can and frequently does cost so much that it is cheaper to say the accuser is right and pay what they are claiming rather than pay to defend yourself in a 'definitely will win' case. as with so many laws put together and brought into being by Congress, they are not specific enough, certainly not as specific as they could/should be. the other thing is that in so many instances, the accuser, even when he/she loses, has next to nothing to pay out in expenses/costs incurred by the winning side, let alone compensation for bringing the law suit in the first place. when the odds are stacked so high against the one who is in the right, who can actually blame them for doing the opposite thing, even though both sides know what should have been done and who should have won

     

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    jameshogg (profile), Apr 30th, 2013 @ 12:30pm

    I live in the U.K., and we just underwent a libel law reformation.

    Everybody knows we are a magnet for a libel tourism industry. You just need to look at how Roman Polanski exploited it. It was once recorded that the libel litigation costs in the U.K. were something along the lines of 180 times more expensive than anywhere else in Europe.

    The problem at hand is the very obvious blurry lines between free speech and defamation. The U.S. attempts to tackle it much better because it takes the First Amendment very seriously, although it can still improve by reducing court costs. It reduces the blurriness of the lines as much as possible: how many people heard the slander, if it was a statement of fact, if there was any malicious intent, if there are serious criminal allegations, if the person making the slander refuses his chance to take it back and apologise/make it clear it was just an opinion, etc.

    The lines are much tougher, and I envy the U.S. on this basis.

    Copyright law, on the other hand, does not come anywhere near this standard of scrutiny when it comes to fair use. The slippery slopes involved when considering what qualifies as fair use in what circumstances and adapting it as circumstances change, multiplied with the logical contradictions within the very idea of copyright itself leads to a very nasty accumulation of power where decisions can be either very stupid or very oppressive. You only need to look at how remix culture is suffering as a result of this, not to mention the rights of derivative authors in general. And you will in the future see it happen to fan artists and fan fiction writers - publishers will have learned their lesson, or will learn it soon, about allowing fan fiction to run riot in case the next Twilight fan fic becomes another 50 Shades of Grey.

    So I do not think the argument of "well litigation exists in defamation, obscenity, treason, etc" holds. In those situations, the slope is nowhere near as slippery. We in the scientific/skeptical community absolutely deplore the U.K. libel laws as they allow for very obvious exploitation due to their vagueness. The same level of anger should quite rightly be leveled at copyright law - and considering how it often takes supreme court judges, tons of lawyers, etc to deconstruct a vague law and then analyse what is inevitably subjective expressions, I have every right to claim that nobody is in a good enough position to decide what the limitations of fair use should be.

     

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      Rikuo (profile), Apr 30th, 2013 @ 12:56pm

      Re:

      "The problem at hand is the very obvious blurry lines between free speech and defamation. The U.S. attempts to tackle it much better because it takes the First Amendment very seriously, although it can still improve by reducing court costs. It reduces the blurriness of the lines as much as possible: how many people heard the slander, if it was a statement of fact, if there was any malicious intent, if there are serious criminal allegations, if the person making the slander refuses his chance to take it back and apologise/make it clear it was just an opinion, etc."

      Exactly. On the one hand, you've got the First Amendment, the freedom to make (almost) whatever speech you want in (almost) whatever way you see fit.
      Then you have copyright, which says you can't say something someone else has said before. To try and act as a limit, you have fair use - but given how fair use is practiced, it leads to self-censorship. What if Alice is making a review video on Youtube about Movie XYZ but wants to use a clip from Movie ABC as part of her parody? Well, since you can only use part of whatever you're parodying and not something else...suddenly she's a heinous dirty criminal who must be silenced and prevented from making that speech. Why, her Youtube account should be blocked, and if she spread the work via Bittorent (or is just thought to have), her internet access must be restricted or shut down.

       

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    Me!!!, Apr 30th, 2013 @ 12:59pm

    Question About "Transformative" Uses

    I've been a little confused about what constitutes a transformative use in the legal sense. It was explained to me long ago that the term refers more to the medium rather than the specific context of the use. As in, sampling someone's music to make music doesn't pass that particular prong of the test.

    In relation to the Andy Baio incident, that would be considered using an album cover to make an album cover. Thus, not Fair Use by that particular measure.

    This aspect of the Fair Use test has always been confusing to me. For example, sampling a movie quote, looping it up, and perhaps filtering it through some sort of effect to make it more 'musical' should be considered a transformative use in my mind, but I'm pretty sure that's also been the subject of C&D letters.

    What do the courts consider "transformative?"

     

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      jameshogg (profile), Apr 30th, 2013 @ 1:13pm

      Re: Question About "Transformative" Uses

      A transformative work is when a derivative artist makes a creative work in a different medium from the original, and is non-commercial (I think). So it would be a sketch of a movie scene, for example, but not a movie of a movie.

      But it's rather stupid: all the original author has to do in order to prevent people showing off transformative works is make his OWN transformative works before they do. So the original author himself makes a sketch of a scene from a movie, and now THAT counts as belonging to the original IP meaning the derivative artist's services are no longer considered transformative (the derivative artist's sketch would not come from a movie scene, but from another original sketch from the original artist).

       

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        Rikuo (profile), Apr 30th, 2013 @ 1:20pm

        Re: Re: Question About "Transformative" Uses

        I'm not sure I understand your second paragraph. Let's say I play Star Wars a New Hope and I pause it at/take a screenshot of..when Han shoots Greedo, and I then draw that on a sheet of paper.
        Now let's say George Lucas did the exact same thing, but without my knowledge. My purpose was to make a transformative work of a still image from a movie - how would Lucas's own drawing come into play? My drawing isn't affected by Lucas's.

         

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          jameshogg (profile), Apr 30th, 2013 @ 1:27pm

          Re: Re: Re: Question About "Transformative" Uses

          Lucas would surely have copyright over his drawing of a still image from a movie? Especially if released it at the same time the movie came out?

           

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            Rikuo (profile), Apr 30th, 2013 @ 1:41pm

            Re: Re: Re: Re: Question About "Transformative" Uses

            Well yes, obviously he'd have copyright over his own sketch. What I'm asking here is I draw on paper a scene from the movie. The movie's copyright holder does the same, but without my knowledge. How would that then turn my drawing into a non-transformative work, given what you wrote "(the derivative artist's sketch would not come from a movie scene, but from another original sketch from the original artist)."
            My drawing had nothing to do with Lucas's. Especially since, the way you worded that sentence, I drew first.

             

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              jameshogg (profile), Apr 30th, 2013 @ 2:04pm

              Re: Re: Re: Re: Re: Question About "Transformative" Uses

              I apologise. Let me clarify: I think the derivative artist would be allowed to do the sketch if he was the first to do it.

              But it should be easy for the original artist just to realise the IP under all possible mediums all in one go to prevent this from happening.

               

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      out_of_the_blue, Apr 30th, 2013 @ 1:28pm

      Re: Question About "Transformative" Uses

      @ "I've been a little confused about what constitutes a transformative use in the legal sense." -- Yeah, anyone normal dropping into Techdirt's walled garden from, er, out of the blue, has a deal of trouble picking up the patter, especially because Mike rarely states anything firm on copyright.

      In Masnickian usage -- not just the instant case, either -- "tranformative" means imitating classic tunes with primitive 8-bit bleeps and bloops, and for cover art, similearly lowering the resolution of someone else's image with pixelation effect. The Techdirt definition doesn't require adding anything to the work -- let alone improving -- only to copy it, poorly.

       

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        Me!!!, Apr 30th, 2013 @ 2:43pm

        Re: Re: Question About "Transformative" Uses

        "Masnickian?"

        Well, I'm not really into the whole 8bit interpretation of Davis' work, although I thoroughly enjoy 8bit games and the newer retro games that pay homage, but this isn't a case of Fair Use employed to release the music. My guess is the basic license for releasing a cover was all that was needed.

        However, the artwork is clearly not simply a lowering of the resolution. The pattern in the tie wouldn't have reduced in the way it is recreated on the cover. I don't know much about graphic design, but that much is obvious even to me. I'm not saying the cover isn't derivative, or that it's even a clear case of Fair Use, only pointing out that there was probably more to it than running it through a "bit crush" filter. (Sorry, I'm a musician so I'm using a term I'm familiar with)

        The Techdirt definition doesn't require adding anything to the work -- let alone improving -- only to copy it, poorly.


        Ah! The Ramones-style approach.

         

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        Anonymous Coward, Apr 30th, 2013 @ 7:29pm

        Re: Re: Question About "Transformative" Uses

        Imitating classic tunes? Hell, I've heard songs in Mandarin Chinese (S.H.E.) that do little more than electronically replay classical tunes. Your point, as all of your other points, is a blatantly false and heavily disproved lie.

         

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        Anonymous Coward, May 1st, 2013 @ 12:59pm

        Re: Re: Question About "Transformative" Uses

        "I don't understand this or like it so it's not transformative!" said some old man yelling at a cloud once.

         

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      Leigh Beadon (profile), Apr 30th, 2013 @ 1:31pm

      Re: Question About "Transformative" Uses

      The standards are wildly different when it comes to different things, and also different circuits of the court. It's kind of a mess.

      One quick correction to what James said above: the question of whether something is transformative has nothing to do with whether it is commercial. Both might enter into a fair use analysis, but they are independent of each other.

      The question of a new medium has mattered in certain transformative work cases, but that's not the definitive standard by any means -- nor is it an automatic pass (e.g. recording a spoken version of a book would still infringe on the copyright of the book)

      In the recent Richard Prince ruling over fair use in appropriation art, the court used the standard of a “new expression, meaning, or message” for transformative works -- nothing to do with the medium (that in itself would have been odd, since both are visual works, but is photography a "different" medium from collage, or a variant of the same?)

      But, as noted, things can be wildly different elsewhere. Ever since some key rulings about 20 years ago, the standard for samples in music has been "get a license or do not sample" -- which is the far opposite end of the scale. Of course, part of that is due to a weird procedural issue: fair use was never fully tested in the case which set down that standard -- that "get a license" language was used in the rejection of a de minimis defence, which is different (basically 'it was such a small sample it can't possibly matter'). The fair use question was sent back to a lower court, but the case was settled before it was heard. It's also limited to one circuit. Nevertheless it became the de facto standard, and nobody has made a serious fair use/transformative argument in a remixing/sampling case since.

      Thus you have this crazy situation where the standard for transformative visual art is quite permissive and sensible, but when it comes to samples and remixing, there is effectively no such thing as transformative art

       

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        jameshogg (profile), Apr 30th, 2013 @ 2:18pm

        Re: Re: Question About "Transformative" Uses

        In the recent Richard Prince ruling over fair use in appropriation art, the court used the standard of a “new expression, meaning, or message” for transformative works.

        "New expression/meaning/message" - see, I can immediately see many things wrong with this. It depends on subjective interpretation, such as what expression we are even talking about, let alone if it is "new". I can walk up to any painting and pull out 100 different interpretations of it.

        I become very suspicious in moments like these, because I cannot imagine anybody competent enough to make such a decision.

         

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          Leigh Beadon (profile), Apr 30th, 2013 @ 3:42pm

          Re: Re: Re: Question About "Transformative" Uses

          Yup, it's crazy subjective -- even in that case, the court made the very odd decision to claim that 25 of the works were definitely transformative while 5 had to be evaluated more, and how exactly they drew that line is as clear as mud.

           

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        Nina Paley (profile), Apr 30th, 2013 @ 7:27pm

        Re: Re: Question About "Transformative" Uses

        the standard for transformative visual art is quite permissive and sensible

        I disagree. Andy Baio's contentious album cover was visual art.

         

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          Leigh Beadon (profile), Apr 30th, 2013 @ 10:08pm

          Re: Re: Re: Question About "Transformative" Uses

          I disagree. Andy Baio's contentious album cover was visual art.

          You're right. I should say sometimes permissive (there is still an insane amount of uncertainty), and only speaking in contrast to the situation with music.

           

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      Karl (profile), Apr 30th, 2013 @ 2:23pm

      Re: Question About "Transformative" Uses

      I've been a little confused about what constitutes a transformative use in the legal sense.

      "Transformative" refers to the purpose of the use. It's the primary way in which the first of the "four factors" is considered. It's not really about the medium - you can use some music in your music, and it would still be fair use if it's transformative enough (for parody, say).

      Strictly speaking, "transformative" doesn't appear anywhere in the statutes at all. It comes from case law. Here's Supreme Court Justice Souter's description:
      The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely "supersede[s] the objects" of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative." Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.
      - Campbell v. Acuff-Rose

      The Stanford Copyright & Fair Use Center has a pretty good overview of the "four factors" of fair use, if you care to take a look.

       

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        Karl (profile), Apr 30th, 2013 @ 2:37pm

        Re: Re: Question About "Transformative" Uses

        Also: To show that it really is a transformation of the work's purpose, not necessarily of the work itself, I'll quote the 9th Circuit's fair use ruling from Perfect 10 v. Google:
        Finally, Perfect 10 contends that users who link to infringing websites automatically make "cache" copies of full-size images and thereby directly infringe Perfect 10’s reproduction right. The district court rejected this argument, holding that any such reproduction was likely a "fair use." The district court reasoned that "[l]ocal caching by the browsers of individual users is noncommercial, transformative, and no more than necessary to achieve the objectives of decreasing network latency and minimizing unnecessary bandwidth usage (essential to the [I]nternet). It has a minimal impact on the potential market for the original work..." We agree; even assuming such automatic copying could constitute direct infringement, it is a fair use in this context. The copying function performed automatically by a user’s computer to assist in accessing the Internet is a transformative use.

         

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          Anonymous Coward, Apr 30th, 2013 @ 2:55pm

          Re: Re: Re: Question About "Transformative" Uses

          Ah! I think I'm beginning to grok. The purpose is what is being transformed.

          Relating back to the Richard Prince case, the purpose of the appropriated photo was originally to sell shoes (or whatever it was for), and the purpose of the collage we can at least say wasn't "to sell shoes" even if we can't clearly pinpoint the creator's specific purpose.

          (I'm a little under the weather so I'm having trouble sorting my thoughts coherently. Sorry if I'm sounding a little dense)

          I think that makes a little more sense out of what was originally explained to me so many years ago. If I sample a tune, I'm not necessarily transforming its purpose, because both myself and the original artist intend to entertain with it in pretty much the same way. However, that wouldn't mean that the usage falls out of Fair Use, because it may still pass the other factors. Perhaps that's what the person who originally explained this to me was trying to say.

          Thanks for input, Karl and Leigh.

           

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            Leigh Beadon (profile), Apr 30th, 2013 @ 3:37pm

            Re: Re: Re: Re: Question About "Transformative" Uses

            Not entirely. There is the question of meaning and message too, which are a part of purpose. Both works could be to entertain, but each could carry an entirely different message, and that could still be transformative. It's worth reading the Richard Prince ruling, where there's some discussion of just how permissive that standard can be -- in that case, Prince himself didn't even put up much of a defence in terms of claiming that his work had a new message, and the court still felt that it did and was thus fair use.

            The drastic legal difference between music and visual art doesn't actually have much of a logical basis. It's just the result of different courts ruling different ways in different cases.

             

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              Me!!!, Apr 30th, 2013 @ 4:30pm

              Re: Re: Re: Re: Re: Question About "Transformative" Uses

              Yeah, I guess until recently it never occurred to me how wide the difference is between "sampling" rules in different media. I guess one could chalk it up to the perception of one as fine art and the other as pop culture.

              I'll have a look at the Prince ruling, it sounds like it would be enlightening.

              in that case, Prince himself didn't even put up much of a defence in terms of claiming that his work had a new message, and the court still felt that it did and was thus fair use.


              I've wondered how the question of "meaning" or "message" would play out in court. I know myself and many other artists are loathe to attach any specific meaning to a work, doubly opposed to actually explaining that meaning to somebody else. Much of the time, I don't even know what a song of mine is really about! I mean, I'll have a premise in mind and perhaps a message, but often years later I listen to an old song and realize "Oh! I see! This song was really about that old girlfriend. Not robots."

               

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    Anonymous Coward, Apr 30th, 2013 @ 1:00pm

    IP law is unadulterated theft and should simply be abolished.

     

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    Anonymous Coward, Apr 30th, 2013 @ 1:38pm

    Everyone cry a river for those poor souls who can't create something without having to lift verbatim from someone more talented than them.

    Waa waa.

     

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      AC Unknown, Apr 30th, 2013 @ 1:52pm

      Re:

      Go home, troll. Let those of us who want to be able to discuss how to fix copyright so it's not insane talk.

       

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      Anonymous Coward, Apr 30th, 2013 @ 2:50pm

      Re:

      Funny thing, those 'more talented' artists aren't creating from whole clothe, either...

       

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      Me!!!, Apr 30th, 2013 @ 4:49pm

      Re:

      Everyone cry a river for those poor souls who can't create something without having to lift verbatim from someone more talented than them.


      I can sympathize with this a little because I'm more than familiar with the ocean of "beetz" made by 'producers' which are little more than a loop of a popular hook laid over the most unimaginative drum pattern... but c'mon man, use a little more imagination. I know a lot of musicians who work extensively in samples and many, MANY of them are also accomplished musicians in the traditional sense. I've played guitar for more than half my life, but I also sample. I spent the last couple of years writing and recording a dozen singer-songwriter rock-type songs just so I could sample the bridges and tear them up to create my next release.

      I'll admit that I may not be all that talented, but I'm definitely capable of creating both new works 'from scratch' and also lifting bits verbatim in order to communicate with a listener.

       

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      Anonymous Coward, Apr 30th, 2013 @ 7:04pm

      Re:

      Everyone cry a river for those poor souls who can't create something without having to lift verbatim from someone more talented than them.

      Waa waa.



      That's pretty much the story on all of the TD regulars. Failed artists, embittered by the success of the talented and unable to accept the fact that they simply can't hack it.

       

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      JMT (profile), Apr 30th, 2013 @ 9:00pm

      Re:

      Yeah, those terrible people who want to write books or make documentaries about music, television and film should go and make their own music, television and film first, and not leech of others' work!

      Dumbass...

       

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    Anonymous Coward, Apr 30th, 2013 @ 4:02pm

    Yes, fair use is a part of the law, but copyright maximalists, and some courts, have treated it merely as a defense, rather than a direct right. This is almost certainly a misreading of the law, because the law states clearly that a fair use is not an infringement ("the fair use of a copyrighted work... is not an infringement of copyright") but if fair use is merely a defense than there would have to first be infringement. So, clearly the courts have misread the law there.

    This is just highly inaccurate and dumb. Fair use is not demonstrated by the defendant until after the plaintiff has made a prima facie showing of infringement. So you are 100% completely wrong because infringement does have to be shown first and it does operate as an affirmative defense. I know that you will never consider this or change your view or engage me on this point. Prove me wrong and discuss this with me, and I will walk you through it step by step. Wouldn't you rather speak truth than these nonsensical misunderstandings of the law? Wouldn't you rather know the actual difference between a right and a defense, or are you satisfied with your silly declarations that courts are getting it wrong when it's you that are clueless? I'm really happy to explain this to you. Seriously, it's not hard. But the text I quoted shows, without any doubt whatsoever, that it's YOU who are "misreading" the law. And it's a basic point that any 1L would know. The fact that you just jump to "it's the experienced federal judge who is wrong, and not my noob self" says it all, unfortunately. Take a step back, engage people, and learn a thing or two. Seriously, dude. Slow down.

     

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      Mike Masnick (profile), Apr 30th, 2013 @ 4:41pm

      Re:

      This is just highly inaccurate and dumb.

      The explanation I put in the post was explained to me by one of the top copyright experts in the country. I'll let him know what you think.

       

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        Anonymous Coward, Apr 30th, 2013 @ 7:07pm

        Re: Re:

        The explanation I put in the post was explained to me by one of the top piracy apologists in the country. I'll let him know what you think.

        There. All fixed. You're welcome!

         

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          Anonymous Coward, Apr 30th, 2013 @ 8:58pm

          Re: Re: Re:

          I love when he pulls out the "I talked to a lawyer and he's the best and he told me it's true" argument. Not convincing.

           

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            JMT (profile), Apr 30th, 2013 @ 9:06pm

            Re: Re: Re: Re:

            Because the proclamations of an anonymous law student are so much more convincing...

             

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            Mike Masnick (profile), May 1st, 2013 @ 3:35am

            Re: Re: Re: Re:

            I love when he pulls out the "I talked to a lawyer and he's the best and he told me it's true" argument. Not convincing.

            See. If you had just written what you wrote in response to me, and not added that, it might have been worth having a discussion with you.

            But, instead, you show your true colors.

            Anyway, as stated, I'll pass along your comments to the person who made the original argument to me. I never said that it must be true because of who made the argument. I was just pointing out that perhaps others who have a hell of a lot more experience with the law than you do, have differing opinions. But you don't even take that into account. If I said it, it must be attacked in your book.

            This is why (again) engaging with you is not worth it.

             

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              Anonymous Coward, May 1st, 2013 @ 4:32am

              Re: Re: Re: Re: Re:

              You stated something that just wasn't true and then claimed that you heard it from one of the top copyright lawyers in the nation. It's not a convincing argument to say that, yet you use it often. Nor do I think your claim is really convincing that it's not worth debating me because I pointed out that your argument wasn't very convincing. That's just a little overly sensitive. And a little ridiculous. People point out the other side's weaknesses in a debate, Mike. And that argument is very weak.

               

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        Anonymous Coward, Apr 30th, 2013 @ 8:57pm

        Re: Re:

        The explanation I put in the post was explained to me by one of the top copyright experts in the country. I'll let him know what you think.

        I came off a little snarky, so I apologize. This is actually quite simple, and I hope I can explain it to you so that you understand the issues. Let's start with the House Report: "Fair use is an affirmative defense, and as such is relevant only after a copyright owner has made out a prima facie case of infringement. A prima facie case of infringement consists of ownership of the right asserted and unauthorized appropriation by the defendant of a material amount of expression." H.R. Rep. 102-836 at *3.

        The Supreme Court confirmed that fair use is an affirmative defense in Harper & Row: "The drafters resisted pressures from special interest groups to create presumptive categories of fair use, but structured the provision as an affirmative defense requiring a case-by-case analysis." Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 561 (1985).

        And the Court reiterated it in Campbell: "Since fair use is an affirmative defense, its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).

        The way it works is this: The plaintiff files a complaint with the court in which he alleges that the prima facie elements of copyright infringement have been met, i.e., plaintiff's ownership of the exclusive right plus defendant's unauthorized copying. The defendant then files an answer, admitting or denying the plaintiff's allegations and stating any affirmative defenses he may have such as fair use.

        The defendant can attack the plaintiff's prima facie case, arguing that the plaintiff didn't own the copyright or that the defendant didn't copy the work. Or the defendant can state an affirmative defense such as fair use wherein the defendant argues that even though the plaintiff has stated a prima facie case (ownership plus copying), the defendant's copying is excused.

        Where this matters is with the burden of proof. The initial burden of proof is on the plaintiff to make out his prima facie case. He has to prove that he owns the copyright and that the defendant engaged in unauthorized copying. Once the plaintiff has made out his prima facie case, the burden then shifts to the defendant to prove his affirmative defense of fair use. It is only AFTER the plaintiff has proved his case that fair use comes in. If the defendant can prove his use was fair, then it is not infringement. And if the defendant cannot prove his use was fair, then it is infringement.

        So when the law states that "the fair use of a copyrighted work... is not an infringement of copyright," that is true. It's not infringement because the affirmative defense of fair use negatives the plaintiff's prima facie case. You say "but if fair use is merely a defense than there would have to first be infringement," but that's not how it works. It's an affirmative defense because the plaintiff first makes out his prima facie case of infringement, and then the defendant tries to prove his fair use defense to escape liability. And if the defendant can't prove fair use, the plaintiff wins since he has proved his prima facie case.

        You say "some courts . . . have treated it merely as a defense." This implies that there exist a court which has not treated it as a defense. I suspect that you have no evidence to back that up for the simple reason that it is actually a defense. You claim that fair use is a "direct right," but that's clearly not the case. Not even a copyright owner has the RIGHT to copy. The exclusive right only gives the owner the right to exclude others from copying--that's why it's called an EXCLUSIVE right.

        The owner of a copyright can copy the work that he owns because he has a privilege to do so, not a right. Similarly, others have the privilege, but not the right, to make fair use of a copyrighted work. A right gives someone a legally enforceable claim, while a privilege merely allows someone to do something that but for the privilege would give rise to liability.

        That fair use is a privilege and not a right is easily demonstrated. If I write a book and own the copyright therein, you would have the privilege of making fair use of my book. To prevent you from copying my book, I can lock it in a safe and not permit you access. If you had a right to copy my book, I would have a duty of noninterference to allow you access to the book. You would also have a legally enforceable claim against me, and you could petition the court for relief and obtain a court order forcing me to allow you access to the book so that may copy it and exercise your fair use right. But obviously no such claim for relief exists. If fair use were a "direct right" as you claim, you would have that claim against, but since it's just a privilege, you don't.

        Hope this helps.

         

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          Karl (profile), May 1st, 2013 @ 6:30am

          Re: Re: Re:

          You know, I think a great deal of your confusion comes from your belief that an affirmative defense is the same as a privilege.

          Fair use is an affirmative defense, but not a "privilege," because it is not something that allows someone to do something that for the privilege would give rise to liability.

          In fact, if a work makes fair use of another person's work, then the original author has no rights at all over the "fair use work." That the use is a fair use is not a result of being granted a privilege; but a limitation on the statutory rights granted to copyright holders.

          Put another way, fair use is no more a "privilege" than is the fact that facts can't be copyrighted.

          Barring copyright, of course, a "fair use work" would face no liability whatsoever, whether from the copyright holder or anyone else. This is because the work is speech, and every human has an inalienable right to free speech, and the government is prevented from interfering with it by the First Amendment.

          In fact, this is explicitly why fair use is allowed - and always was allowed, even before the copyright statutes made it official. Were it not, then the government would be taking away free speech rights. I'm sure you're familiar with all the case law quotes about fair use "relieving the tension" between copyright and the First Amendment, so I won't quote them here (but I can if you want).

          That fair use is a privilege and not a right is easily demonstrated. If I write a book and own the copyright therein, you would have the privilege of making fair use of my book. To prevent you from copying my book, I can lock it in a safe and not permit you access. If you had a right to copy my book, I would have a duty of noninterference to allow you access to the book.

          If it is indeed physically locked away in a vault, then my right to free speech would be trumped by your rights to privacy and private property (the "property" being the physical manuscript, not the expression written on it).

          On the other hand, the copyright version of "lock it in a safe" is to not publish it. But let's say that I got my hands on your unpublished work. Would I be allowed fair use of your work, even though it's unpublished?

          Yes, I would. And that is explicit in the statutes: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

           

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            Karl (profile), May 1st, 2013 @ 6:39am

            Re: Re: Re: Re:

            Sorry, meant to give another comparison.

            A good example of a "privilege" is the limitations on liability that are granted in 17 USC 512, the DMCA safe harbors. Even if a service provider were liable for infringement, then by following the safe harbor rules, they escape liability.

            But fair use is not a limitation on liability. It is a limitation on the copyright holder's statutory rights.

             

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            Anonymous Coward, May 1st, 2013 @ 7:19am

            Re: Re: Re: Re:

            "You know, I think a great deal of your confusion"

            You are confusing 'confusion' with 'dishonesty' or 'stupidity'. These shills aren't simply confused, they are either dishonest or stupid or both. I vote both.

             

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              Karl (profile), May 1st, 2013 @ 7:42am

              Re: Re: Re: Re: Re:

              These shills aren't simply confused, they are either dishonest or stupid or both.

              A.J. is not a shill, he is a reactionary. This makes him dishonest, but his dishonesty is more a form of willful blindness than anything else. And he is far from stupid.

               

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                Anonymous Coward, May 1st, 2013 @ 8:46am

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

                A.J. is not a shill, he is a reactionary. This makes him dishonest, but his dishonesty is more a form of willful blindness than anything else. And he is far from stupid.

                I pride myself on being open and honest, Karl. Can you point to where you think I've been dishonest?

                 

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                  Anonymous Coward, May 2nd, 2013 @ 5:20am

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

                  Where you've been dishonest? How about the time when you whined for months for Masnick to apologise to you, swearing you would leave the site for the rest of the year if he did so - then came back to post under Anonymous Coward so you could insult his family?

                  You're not fooling anyone.

                   

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                    Anonymous Coward, May 2nd, 2013 @ 6:19am

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

                    I was actually curious which of two things he would choose: (1) discuss his beliefs in an honest way, or (2) apologize to me. I knew that both of those things were something he would not want to do, and I wanted to see if he in fact hates the idea of discussing his beliefs so much that he would choose the other. He did. I wasn't being particularly serious when I made the offer, and I don't think that Mike's apology was in the least bit sincere. I feel like he didn't live up to his end of the bargain with that fake apology. But if you want to characterize that as me lying, go ahead. I admit it. I lied. That one time. I'm happy to admit it. I'll admit it every time. I won't run away like a little weasel who can't stand it when I point out his argument that "I talked to the bestest lawyer in the world and he says I'm right!" is not a convincing argument. Just look at how he grabbed onto that so he could run away from this thread as fast as he can. Do you have anything else, or is this really the best "lie" you can find? I know how important it is to you to discredit me since you can't match wits. Kind of sad, really. I can learn from you and you can learn from me. You don't have to be like this, Mike.

                     

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            Anonymous Coward, May 1st, 2013 @ 8:45am

            Re: Re: Re: Re:

            You know, I think a great deal of your confusion comes from your belief that an affirmative defense is the same as a privilege.

            I don't think that at all. A privilege is a type of jural relation defining the legal relations between different people with respect to a thing. See, e.g., Black's Law Dictionary (9th ed.) ("A privilege grants someone the legal freedom to do or not to do a given act. It immunizes conduct that, under ordinary circumstances, would subject the actor to liability.").

            An affirmative defense is an allegation made by a defendant to defeat a plaintiff's prima facie case. See, e.g., Black's Law Dictionary (9th ed.) (An affirmative defense is a "defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true. The defendant bears the burden of proving an affirmative defense.")

            For example, you have the right to not be shot dead by me. Say I shoot you dead. Your estate would have a wrongful death action against me. After your estate proved its prima facie case of wrongful death, the burden would shift to me to prove an affirmative defense. I could escape liability by proving that I had the privilege to shoot you dead because I was acting in self defense. Or I could prove that you were an enemy soldier and I exercised my privilege to kill you on the battlefield while following the law of war. My privilege operates procedurally as an affirmative defense, but that doesn't mean that a privilege is the same thing as an affirmative defense.

            In fact, if a work makes fair use of another person's work, then the original author has no rights at all over the "fair use work." That the use is a fair use is not a result of being granted a privilege; but a limitation on the statutory rights granted to copyright holders.

            Correct. And a limitation on someone else's rights is called a privilege. Your privilege to make fair use of my work defeats my right to exclude you from copying. Your privilege excuses behavior that, but for the privilege, would violate my exclusive rights.

            Put another way, fair use is no more a "privilege" than is the fact that facts can't be copyrighted.

            Fair use is a privilege because it "immunizes conduct that, under ordinary circumstances, would subject the actor to liability." Without the fair use privilege, your copying would be infringement.

            If it is indeed physically locked away in a vault, then my right to free speech would be trumped by your rights to privacy and private property (the "property" being the physical manuscript, not the expression written on it).

            On the other hand, the copyright version of "lock it in a safe" is to not publish it. But let's say that I got my hands on your unpublished work. Would I be allowed fair use of your work, even though it's unpublished?

            Yes, I would. And that is explicit in the statutes: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."


            Well, the fact it's unpublished would cut against you in the fair use calculus. See, e.g.,
            Perhaps because the fair use doctrine was predicated on the author's implied consent to “reasonable and customary” use when he released his work for public consumption, fair use traditionally was not recognized as a defense to charges *551 of copying from an author's as yet unpublished works.4 Under common-law copyright, “the property of the author ... in his intellectual creation [was] absolute until he voluntarily part[ed] with the same.” **2226 American Tobacco Co. v. Werckmeister, 207 U.S. 284, 299, 28 S.Ct. 72, 77, 52 L.Ed. 208 (1907); 2 Nimmer § 8.23, at 8-273. This absolute rule, however, was tempered in practice by the equitable nature of the fair use doctrine. In a given case, factors such as implied consent through de facto publication on performance or dissemination of a work may tip the balance of equities in favor of prepublication use. See Copyright Law Revision-Part 2: Discussion and Comments on Report of the Register of Copyrights on General Revision of the U.S. Copyright Law, 88th Cong., 1st Sess., 27 (H.R.Comm. Print 1963) (discussion suggesting works disseminated to the public in a form not constituting a technical “publication” should nevertheless be subject to fair use); 3 Nimmer § 13.05, at 13-62, n. 2. But it has never been seriously disputed that “the fact that the plaintiff's work is unpublished ... is a factor tending to negate the defense of fair use.” Ibid. Publication of an author's expression before he has authorized its dissemination seriously infringes the author's right to decide when and whether it will be made public, a factor not present in fair use of published works.5 *552 Respondents contend, however, that Congress, in including first publication among the rights enumerated in § 106, which are expressly subject to fair use under § 107, intended that fair use would apply in pari materia to published and unpublished works. The Copyright Act does not support this proposition.
            Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 550-52 (1985) (emphasis added).

            But let's change the facts of my hypo so that the work is published. Say I write a manuscript of a book, and exactly 10 copies are made and sold publicly at Barnes & Noble. I go to B&N, buy all 10 copies, and I lock them in my safe with the original manuscript. If fair use were a right, you would be able to take me to court and to obtain a court order that I grant you access to the manuscript or a copy so that you could exercise your fair use right to copy. But clearly no such action exists. I have no duty to give you access to my book. Your fair use is in fact only a privilege, and I can lock up my books to prevent you from exercising your privilege and there's nothing you can do about it. You can only exercise the privilege if you are able to, and my locking up the books means you are not able to.

            Change the hypo again, and this time say that you and I entered into a contract where you promise to copy from my book to make fair use of it. Now, because of the contract, you would have a legally enforceable claim against me. You then could get a court to order that I provide you with a copy of the book so that you may perform your part of the bargain. That would be a right, and though it's contractual, it's nonetheless an enforceable right.

            See the difference?

             

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              Karl (profile), May 1st, 2013 @ 1:01pm

              Re: Re: Re: Re: Re:

              Fair use is a privilege because it "immunizes conduct that, under ordinary circumstances, would subject the actor to liability."

              By that definition, any affirmative defense is a "privilege," since all affirmative defenses immunize conduct that would subject an actor to liability.

              But that is clearly not true. For example, the First Amendment has been raised as an affirmative defense (against libel mainly), but that does not mean the First Amendment is a "privilege."

              Without the fair use privilege, your copying would be infringement.

              Without fair use, your right to censor my work would infringe upon my First Amendment right to speak.

              And a limitation on someone else's rights is called a privilege.

              Well, by that definition, copyright itself is a privilege. (Not surprising, then, that it has sometimes been described as such by courts and politicians.) It is (deliberately) a limitation on everyone else's right to speech.

              But let's change the facts of my hypo so that the work is published. Say I write a manuscript of a book, and exactly 10 copies are made and sold publicly at Barnes & Noble. I go to B&N, buy all 10 copies, and I lock them in my safe with the original manuscript. If fair use were a right, you would be able to take me to court and to obtain a court order that I grant you access to the manuscript or a copy so that you could exercise your fair use right to copy.

              Your scenario still depends on your physical ownership of the copies, so it still falls flat.

              Let's turn this around. Say you write a manuscript of a book, and exactly 10 copies are made and sold publicly at Barnes & Noble. I go to B&N, buy all 10 copies, and I lock them in my safe. Let's also say that the manuscript was destroyed in a fire (or, perhaps, that I also bought the only manuscript - in this scenario, it doesn't matter).

              By your logic, if copyright were a right, you would be able to take me to court and to obtain a court order that I grant you access to a copy so that you could exercise your right to copy and distribute the work.

              Of course, that's not how it works, and for the same reason: you don't have any right to my physical property.

               

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                Anonymous Coward, May 2nd, 2013 @ 7:28am

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

                By that definition, any affirmative defense is a "privilege," since all affirmative defenses immunize conduct that would subject an actor to liability.

                A privilege can operate as an affirmative defense. Fed.R.Civ.P. 8(c) lists several affirmative defenses: http://www.law.cornell.edu/rules/frcp/rule_8 The list is not exhaustive. For example, fair use is not listed but we know it's an affirmative defense. Most of those affirmative defenses listed in Rule 8(c) (perhaps even all) are not privileges, such as "accord and satisfaction" and "arbitration and award." Thus, that easily disproves your claim that all affirmative defenses are privileges. Now, I don't know if the converse is true, namely, whether all privileges are affirmative defenses. I'd have to think about that one.

                But that is clearly not true. For example, the First Amendment has been raised as an affirmative defense (against libel mainly), but that does not mean the First Amendment is a "privilege."

                You're assuming, incorrectly, that if it's an affirmative defense, then it's necessarily a privilege. I've already explained that that's not true. Nor do I think you understand that the First Amendment creates both rights and privileges.

                Without fair use, your right to censor my work would infringe upon my First Amendment right to speak.

                The First Amendment provides you with a negative right vis-a-vis the government, i.e., the right to be free any law that abridges your freedom of speech. Copyright does not abridge your freedom of speech, for if it did, it would violate the First Amendment (which it does not do as per Eldred, Golan, Harper & Row, and others). The First Amendment does not give you a positive right to speak, for if it did, you would have a claim against the government to provide you with the means and opportunity to speak. But no such claim exists (except for maybe the public forum doctrine--I'd have to think about it some more). It's the same with fair use. If you had the right to make fair use of a work, then you would have a legally enforceable claim against others to have access to the work so you could exercise your right. But no such claim exists. There is no fair use cause of action. It's only an affirmative defense.

                Well, by that definition, copyright itself is a privilege. (Not surprising, then, that it has sometimes been described as such by courts and politicians.) It is (deliberately) a limitation on everyone else's right to speech.

                But it's not. The First Amendment only gives you a negative right to not have your freedom of speech abridged by law. And again, copyright, which prevents you from speaking in certain ways, is not actually an abridgement of the freedom of speech that violates the First Amendment. You have no affirmative right to speak a copyrighted work. You have only a privilege. The Copyright Act does not take away or abridge your free speech rights.

                Your scenario still depends on your physical ownership of the copies, so it still falls flat.

                Physical ownership is irrelevant, but possession does mater. If you had the right to make fair use of my work, I would have the duty to provide you with a copy if I possessed one. You have no such right and I have no such duty.

                Let's turn this around. Say you write a manuscript of a book, and exactly 10 copies are made and sold publicly at Barnes & Noble. I go to B&N, buy all 10 copies, and I lock them in my safe. Let's also say that the manuscript was destroyed in a fire (or, perhaps, that I also bought the only manuscript - in this scenario, it doesn't matter).

                By your logic, if copyright were a right, you would be able to take me to court and to obtain a court order that I grant you access to a copy so that you could exercise your right to copy and distribute the work.

                Of course, that's not how it works, and for the same reason: you don't have any right to my physical property.


                Not at all. As the copyright holder, I only have the right to exclude others from copying. I came across this statement just the other day: "It should be remembered that a copyright is not a 'right' to use: it is a right to exclude others from using the copyrighted work." http://www.ca11.uscourts.gov/opinions/ops/200916412.pdf

                I have no right to copy the work myself, only the privilege to do so if I am able. You would have no duty to provide me access, and I would have no legally enforceable claim against you.

                 

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              Karl (profile), May 1st, 2013 @ 1:27pm

              Re: Re: Re: Re: Re:

              Also:

              For example, you have the right to not be shot dead by me. Say I shoot you dead. Your estate would have a wrongful death action against me. [...] I could escape liability by proving that I had the privilege to shoot you dead because I was acting in self defense.

              This is exactly why fair use is not a "privilege" in the same sense that a self-defense argument is a privilege. A self-defense argument means that I would escape liability. It does not mean that a murder never occurred at all.

              But that's exactly what a fair use defense means. A successful fair use defense doesn't mean that I "escape liability" for infringement. It means that no infringement ever occurred. It is a limitation on the copyright holder's exclusive rights, not an escape from liability for violating them.

               

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                Anonymous Coward, May 1st, 2013 @ 4:05pm

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

                This is exactly why fair use is not a "privilege" in the same sense that a self-defense argument is a privilege. A self-defense argument means that I would escape liability. It does not mean that a murder never occurred at all.

                No, the self-defense affirmative defense does in fact mean that the killing that occurred was not a murder. This is exactly the same as how the fair use affirmative defense means that the copying that occurred was not an infringement. They work exactly the same way. Exactly, 100% the same way.

                But that's exactly what a fair use defense means. A successful fair use defense doesn't mean that I "escape liability" for infringement. It means that no infringement ever occurred. It is a limitation on the copyright holder's exclusive rights, not an escape from liability for violating them.

                A successful fair use affirmative defense means that you escape liability because no infringement occurred. As I explained above, the defendant does not put on his fair use affirmative defense until after the plaintiff has established his prima facie case of infringement. Then the burden shifts to the defendant to prove the affirmative defense. If he can't do it, then the plaintiff wins and the prima facie case of infringement that he's already proved prevails. And if the defendant can prove fair use, then his copying is not an infringement and the plaintiff's prima facie case that he's already proved is defeated. Fair use is a limitation on the copyright holder's exclusive rights because it permits a defendant to escape liability that he would otherwise have but for the affirmative defense.

                 

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                  Karl (profile), May 2nd, 2013 @ 7:53am

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

                  No, the self-defense affirmative defense does in fact mean that the killing that occurred was not a murder.

                  You know, this didn't seem right to me, but I don't really have so much legal knowledge of the legal terminology behind murder and self-defense laws. So, I decided to do some checking.

                  And, big surprise, you are wrong. Or, at the very least, inaccurate.

                  Though, I admit I was inaccurate too. When I said "it does not mean that a murder never occurred at all," I should have said "it does not mean that a homicide never occurred at all." That would have been true. A homicide occurred; but it was "justifiable homicide," and therefore not murder (or attempted murder, etc). See e.g. 506. Justifiable Homicide: Defending Against Harm to Person Within Home or on Property from California's criminal statutes.

                  But it does not mean that there was no homicide in the first place. So, it is still not like a fair use defense. A successful fair use defense means that the copyright holder never held any of the 501 rights with regard to the "fair use work." It means that the prima facie case is refuted, not merely "defeated."

                  It should also be noted that self-defense is a right, not merely a privilege, and moreover is not always an affirmative defense. For example:
                  In this regard, the current statutory defense reflects the common-law "right" of an individual to repeal a threat to life or limb (People v. Governale, 193 N.Y. 581, 587-588, 86 N.E. 554; see also, Shorter v. People, 2 N.Y. 193). Defense of oneself or one's relations, deemed a natural, inalienable right at common law, justified the use of force, making even homicide lawful. Thus, one who committed an act of "justifiable homicide", whether in defense of himself or another, was considered to have "no kind of fault whatsoever, not even in the minutest degree" (4 Blackstone's Commentaries, at 932 [Chase's 3d ed.], see also, 69-70, 619).

                  This right to defend oneself or another was early codified in this State as an integral part of the murder statutes (see, e.g., L.1787, ch. 22; 2 Rev.Stat. of N.Y., part IV, ch. I, tit. II, § 3 [1829] ), and this court has long held the People have the burden of disproving beyond a reasonable doubt a defendant's claim that he was acting in the exercise of that right (see, e.g., People v. Taylor, 177 N.Y. 237, 245, 69 N.E. 534, supra; People v. Riordan, 117 N.Y. 71, 74-75, 22 N.E. 455). Accordingly, justification under the Penal Law is an ordinary defense rather than an affirmative one (see, Penal Law § 35.00). As such, whenever justification is sufficiently interposed by the defendant, the People must prove its absence to the same degree as any element of the crime charged (People v. Reed, 40 N.Y.2d 204, 209, 386 N.Y.S.2d 371, 352 N.E.2d 558; People v. Steele, 26 N.Y.2d 526, 528, 311 N.Y.S.2d 889, 260 N.E.2d 527).
                  - New York v. McManus

                  On the other hand, courts have sometimes described copyright itself as not a right, but a privilege. For example:
                  This contention is based on the idea that Congress has granted the copyright privilege with relation to public performances of music, and that, with reference to the protection of this particular privilege, combination is essential. We are therefore asked to conclude from the asserted necessities of their situation that Congress intended to grant this extraordinary privilege of combination. This we cannot do.
                  - Watson v. Buck

                  In fact, Triangle Publications v. Knight-Ridder describes both copyright and fair use as privileges:
                  We think it also important to point out that we agree with the District Court's analysis and conclusion that the copyright privilege owned by TV Guide clearly applies to protect TV Guide's covers. [...]

                  Although no definition of fair use that is workable in every case has ever evolved, a frequently quoted definition of fair use is "a privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner (by the copyright)."

                  And, as that case makes clear, the "privilege" giving rise to the fair use doctrine, is in fact the right to free speech:
                  The fair use doctrine frequently serves to eliminate potential conflicts between copyright and free speech.


                  So, unless you really want to claim that free speech is "a mere defense," then you're full of it.

                   

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                    Anonymous Coward, May 2nd, 2013 @ 8:51am

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

                    And, big surprise, you are wrong. Or, at the very least, inaccurate.

                    Nope. I'm 100% correct.

                    But it does not mean that there was no homicide in the first place. So, it is still not like a fair use defense. A successful fair use defense means that the copyright holder never held any of the 501 rights with regard to the "fair use work." It means that the prima facie case is refuted, not merely "defeated."

                    You're looking at it in the wrong way. The fair use affirmative defense does not mean that the copyright holder never possessed the exclusive rights to begin with. As I've explained already, fair use only comes into the case after the plaintiff copyright holder has made out his prima facie case of infringement by the defendant, namely, that the plaintiff owns the particular exclusive right at issue and that the defendant copied without authorization. Once that is proved, the defendant can show that his copying is protected by fair use. That defeats the plaintiff's prima facie, but it doesn't mean the plaintiff doesn't own the exclusive right--he absolutely does. No court ever has said that the fair use defense divests a copyright owner of that which he owns. It just means that that right is not absolute and that it is limited in certain ways. Limited does not mean that legal or equitable title is divested. That makes no sense, and no court ever has said that because it's nonsensical.

                    It should also be noted that self-defense is a right, not merely a privilege, and moreover is not always an affirmative defense.

                    Yes, I'm well aware that the case law and commentary is full of examples of courts and jurists using the words "right" and "privilege" in their non-Hohfeldian, nontechnical sense. If self-defense were a right, then the holder of that right would have a legally enforceable claim against an aggressor that the aggressor did not let the rightholder exercise his right to defend himself. That would mean the aggressor would have a duty (all rights necessarily have correlative duties) to let the rightholder engage in self-defense. But there's obviously no cause of action for failure of an aggressor to allow the rightholder to engage in self-defense. Self-defense merely permits the privilege to stave off an aggressor, and it negatives a duty that a person would normally have not to attack another. Normally, we have a duty not to harm another, but when that other is harming us, we have the privilege of ignoring that duty to the extent necessary to protect ourselves.

                    On the other hand, courts have sometimes described copyright itself as not a right, but a privilege.

                    Yep, lots of case law and commentary call it a privilege, but it's not being used in that instance you quoted to mean that it's in contradistinction to a right in the Hohfeldian sense. Again, if copyright were a privilege and not a right, its holder would not have a legally enforceable claim against others not to copy and others would have no duty not to copy. But that's clearly not the case. Copyright is exactly a right because it grants its holder a legally enforceable claim against others and because it creates in others a duty not to copy.

                    So, unless you really want to claim that free speech is "a mere defense," then you're full of it.

                    The First Amendment creates rights and privileges. It can operate as a defense, but it's not merely a defense. I think this theoretical stuff is a little above your grasp, Karl. Without a grasp of the basics, I'm afraid you're just always going to think I'm wrong even when I'm explaining even basic things to you correctly.

                     

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                      Karl (profile), May 2nd, 2013 @ 2:16pm

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

                      The fair use affirmative defense does not mean that the copyright holder never possessed the exclusive rights to begin with.

                      Actually, that's exactly what it means.

                      The granting of exclusive rights, in 17 USC 106, is "subject to sections 107 through 122." The limitation of rights that is fair use, from 17 USC 107, is "notwithstanding the provisions of sections 106 and 106A." If a use is fair use, then it is "is not an infringement of copyright." It is not a "limitation on liability" (as is 17 USC 512), it is a limitation of the copyright holder's rights that is a condition of being granted the rights in the first place.

                      Saying "this use is fair use" is exactly the same as saying "this use cannot be covered by copyright."

                      No court ever has said that the fair use defense divests a copyright owner of that which he owns.

                      Of course they wouldn't say that. Copyright holders never held the exclusive right to the fair use of their expression. You can't divest someone of something they never had.

                       

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                        Anonymous Coward, May 2nd, 2013 @ 2:49pm

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                        You're just going in circles and grasping at straws at this point, Karl. I've explained why fair use isn't a right, and you've said nothing to disprove that. Yet, you keep insisting it's a right. I know you want it to be a right. I really do. But wishing doesn't make it so. There is no right to make fair use of a work, only a privilege, for all of the reasons I've repeated several times which you choose to ignore even though it's the truth. And I'm the dishonest one? Sheesh. Another wasted conversation with the brick wall, unfortunately.

                         

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                          Karl (profile), May 2nd, 2013 @ 6:39pm

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

                          I've explained why fair use isn't a right, and you've said nothing to disprove that. [...] There is no right to make fair use of a work, only a privilege...

                          You haven't "explained" anything. You've insisted that nobody has a right to engage in speech that is not infringing.


                          To do that, you've used definitions of "right" and "privilege" (Hohfeld's) that don't match the plain English definitions, and that judges and lawmakers don't even use all the time. Furthermore, your usage is not entirely correct. Hohfeld doesn't talk about rights vs. privileges, but about claims vs. privileges; rights can be "claim rights" or "liberty rights," and liberty rights are what are called "privileges." Moreover, he also defines "power" and "immunity" as (second-order) forms of rights.

                          But who cares what Hohfeld thinks? Lawmakers and courts don't use his terminology. His views clash with other philosophers (like Locke) who are far more influential. Perhaps most importantly, his definitions clash with common usage: a "right" is something inalienable that others cannot interfere with, and a "privilege" is something granted by authority.

                          But of course you know that - because you want to deliberately conflate Hohfeld's definitions with the common usage. For example, the First Amendment right to free speech would not be a "right" (claim right) under Hohfeld's definition; it would be a "privilege" (liberty right). But I doubt that Hohfeld himself would ever say that free speech is "only" a privilege, as you just did. On the other hand, this is exactly what someone would do if they were using the terms in "their non-Hohfeldian, nontechnical sense" (as you put it). Of course, that suits you just fine, because you want to use whichever definition has the most emotional appeal.

                           

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                            Anonymous Coward, May 3rd, 2013 @ 7:56am

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

                            To do that, you've used definitions of "right" and "privilege" (Hohfeld's) that don't match the plain English definitions, and that judges and lawmakers don't even use all the time.

                            Yes, courts and commentators use the words privilege and right interchangeably and carelessly. But there is a difference between the two, and they are mutually exclusive in their technical meaning.

                            Furthermore, your usage is not entirely correct. Hohfeld doesn't talk about rights vs. privileges, but about claims vs. privileges; rights can be "claim rights" or "liberty rights," and liberty rights are what are called "privileges."

                            Um, Hohfeld exactly talks about rights vs. privileges.
                            [I]f X has a right against Y that he shall stay off the former’s land, the correlative (and equivalent) is that Y is under a duty toward X to stay off the place. *** [W]hereas X has a right or claim that Y, the other man, should stay off the land, he himself has the privilege of entering on the land; or, in equivalent words, X does not have a duty to stay off. *** [T]he correlative of X's privilege of entering himself is manifestly Y's “no-right” that X shall not enter.
                            Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions As Applied in Judicial Reasoning, 23 Yale L.J. 16, 32-33 (1913).

                            You should read that paper. It holds up remarkably well a century later.

                            Moreover, he also defines "power" and "immunity" as (second-order) forms of rights.

                            I don't believe he called them "second-order." You must be reading somebody's work talking about the original, and not the original. Regardless, not sure why you say "moreover" when that sentence has nothing to do with the point you trying to make. You're way in over your head with this stuff. You don't understand the basics like privileges and affirmative defenses. You certainly don't grasp Hohfeld.

                            But of course you know that - because you want to deliberately conflate Hohfeld's definitions with the common usage.

                            No, common usage conflates right and privilege. That's fine if you want to be inexact. But if we're going to have an intelligent conversation about the theory, you recognize that right and privilege are two separate things. And if something is a right, it's not a privilege, and vice versa. They are distinct. You're approaching things in a silly way by saying that if you can find a court that says that copyright is a privilege and fair use is a right, then that must be what they are. Of course, you ignore the courts that say copyright is a right and that fair use is a privilege (because you tend to ignore everything that doesn't fit your predetermined outcome--as proved very nicely in these very comments). Nor can you explain how all the courts can be right if right and privilege are distinct things. The answer is simple: courts and commentators are sometimes careless with the terminology. They don't teach this stuff in law school because it's advanced, so many people don't have a background in it.

                            For example, the First Amendment right to free speech would not be a "right" (claim right) under Hohfeld's definition; it would be a "privilege" (liberty right). But I doubt that Hohfeld himself would ever say that free speech is "only" a privilege, as you just did. On the other hand, this is exactly what someone would do if they were using the terms in "their non-Hohfeldian, nontechnical sense" (as you put it). Of course, that suits you just fine, because you want to use whichever definition has the most emotional appeal.

                            Hohfeld would say that the First Amendment creates a right against the government, because that's exactly what the Amendment says ("Congress shall pass no law..."). He would also recognize that there is a privilege to speak. You're the one appealing to emotion. Fair use just HAS to be a right for you, and copyright just HAS to be a privilege for you. You start with that conclusion and look desperately for anything you can find to make it fit. I don't care what the label is so long as it's the proper label. If fair use were actually a right, I would say it were a right. But it's simply not, for all of the reasons I've explained in depth that you can neither grasp nor admit (if it were a right, you would have a legally enforceable claim against others, etc.). Sorry, Karl, but you aren't making any sense with this stuff and you are in way over your head. Seldom right but never in doubt. That's you. I seriously need to stop wasting my time with you. You are so clueless and so stubborn that it's a complete waste of my time. You have nothing to teach me, and you won't let me teach you anything. Good luck, Karl. I think this is the end of the road for me. You're just not worth it. Life's too short to waste another minute on you. That's how bad it is. Seriously.

                             

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                              Karl (profile), May 3rd, 2013 @ 11:56pm

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

                              Yes, courts and commentators use the words privilege and right interchangeably and carelessly.

                              It's not "careless," it's simply the fact that words do not necessarily have the definition that Hohfeld says they do.

                              In fact, even Hohfeld says that "rights," as commonly understood, encompass "rights (claims)," privileges, and immunities. He is not attempting to say that any of these things is not a "right" in the common sense; he is trying to categorize rights. Certainly, he never suggests that they are ranked in some way; nothing is "only" a privilege, in the same way that nothing is "only" a claim.

                              Um, Hohfeld exactly talks about rights vs. privileges.

                              All of what he is talking about are "rights" in the common parlance, but he uses the term "claim" as a shorthand for "right:
                              If, as seems desirable, we should seek a synonym for the term “right” in this limited and proper meaning, perhaps the word “claim” would prove the best.


                              And he explicitly says that "liberties" are synonymous with his definition of "privileges:"
                              A “liberty” considered as a legal relation (or “right” in the loose and generic sense of that term) must mean, if it have any definite content at all, precisely the same thing as privilege. [...]

                              The closest synonym of legal “privilege” seems to be legal “liberty.”

                              So, yeah, "claim" vs. "liberty" is entirely consistent with Hohfeld. Moreover, it's a lot more consistent with the common definition of these terms... which is why you'll never use them; you're dishonest as the day is long.

                              Incidentally, under Hohfeld's terminology, fair use would be a "no-right." It is exactly the same as my "no-right" to prevent you from entering your own property. It is not "created" by fair use, in the same way that my "no-right" to keep you from entering your property was "created" by tresspass statutes.

                              Hohfeld would say that the First Amendment creates a right against the government, because that's exactly what the Amendment says ("Congress shall pass no law...").

                              No, because the First Amendment does not "create" anything. Hohfeld would say that free speech is an inalienable privilege (or liberty, or freedom); and that the First Amendment guarantees an "immunity" against any governmental "power."

                              No, common usage conflates right and privilege.

                              If you want to restrict yourself to Hohfeld's terminology, then you can't say something is "only" a privilege. Under Hohfeld, privileges are not "subservient" to rights (nor vice versa). Hohfeld was categorizing what people call rights; he was not ranking them. So, when you say something is not a right, but "only" a privilege, you are butchering the terms by Hohfeld's standards.

                              Of course, in common usage, "privileges" are subservient to "rights;" the former is granted to people by authorities (what Hohfeld would call "special" privileges), the latter are inalienable and not granted by the government.

                              So, let's actually use terms that are both Hohfeldian and closer to common usage. What you're saying is that "fair use isn't a claim, it is 'only' a civil liberty." That is entirely accurate under Hohfeld's definitions, and is closer to jibing with common parlance.

                              Of course, the natural reaction to this statement is: "What the hell do you mean, 'only' a civil liberty??? You actually are stupid enough to believe some legal claim justifies trampling all over human rights???" ...and etcetera.

                              And this reaction is entirely justified, which is why you'll never, ever use Hohfeld's terms unless they invoke an emotional response. You are, after all, a dishonest propaganda bullshitter.

                               

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      Ophelia Millais (profile), Apr 30th, 2013 @ 5:01pm

      Re:

      That part of Mike's analysis leapt out at me as being somewhat off-the-mark, too. I'm no more of a lawyer than Mike, but it seems your response isn't completely correct, either. Or rather, it's a matter of philosophy: if a court has not weighed in on it, is a given use (like the Kind of Bloop cover art) definitely either infringement or fair use? Or is it neither?

      Fair use puts a limit on what copyright covers. Certain kinds of uses are not, as the copyright maximalists would have us believe, "permissible infringement", but rather are just things that copyright doesn't even encompass; there can be no infringement in those situations, as there's no exclusive right upon which to infringe, and no license to seek.

      But the plaintiff in a copyright infringement lawsuit asserts, implicitly, that the defendant's use is not one of these outside-the-realm-of-copyright situations. It is up to the defendant to convince the court otherwise, so it's hard to see how anyone could say it's not a defense.

      That said, I don't see how it can be said that infringement has occurred, unless there is a judicial finding or admission of infringement. A prima facie showing of infringement is neither of those things. It is a modestly supported accusation, an assertion that something looks like infringement.

      I can say you did something which infringed upon some right of mine, and offer some evidence that you indeed did commit the act which I say is infringing, but unless you admit to infringement, it's up to the court to say that yes you did commit the act and yes that act infringed upon my rights. Until then, the infringement is just, like, your opinion, man.

       

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        horse with no name, Apr 30th, 2013 @ 7:37pm

        Re: Re:

        It is legal word games. Even Mike knows that fair use is a claim that can only be made against copyright works. By it's very definition, fair use is 'I know this is copyright, but I used it anyway because...'. If there is no claim of copyright, there is no claim of fair use.

         

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          Ophelia Millais (profile), Apr 30th, 2013 @ 9:09pm

          Re: Re: Re:

          Copyright is not just about which works that copyright applies to, it's about certain kinds of uses of those works. The law (U.S., at least) limits the works that are covered, and it limits the types of uses that are covered. Thus, fair use is not "I know this work is covered by copyright, but..."—it's "I know that many uses of this work are protected by copyright, but this particular use is not".

           

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          JMT (profile), Apr 30th, 2013 @ 9:10pm

          Re: Re: Re:

          Correction:

          "I know this is copyrighted, but I used it anyway because the use was fair' and therefore not infringing."

           

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            Ophelia Millais (profile), May 1st, 2013 @ 11:10am

            Re: Re: Re: Re:

            No, that's wrong. Copyright only applies to certain kinds of works, and only to the extent that it's used in certain ways. To say that a work is "copyrighted" doesn't mean that every possible use, such as butt-wiping, is only allowed by the copyright owner and licensees. Rather, it implies only that certain kinds of uses of that work (copying, distribution, etc.) are protected. Fair use law explicitly declares that a subset of these uses (like copying an excerpt for criticism) are beyond the scope of copyright altogether. It's not about equity, and it's not about using something in a certain way despite the rights that someone has over it (there is no "anyway"). It's about that person not having all the rights over the work that they think they do.

             

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    Mandee, May 1st, 2013 @ 2:57am

    Copyright and wrong

    I wouldn't want anything I worked hard on to be grabbed and used for the promotion of another service or product, but on the Internet anything can happen. The best safeguard I have is to post only what I feel it is OK to share and keep the rest under lock and key. It's the same thing since the photocopy machine.

     

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    Patricia Aufderheide, May 1st, 2013 @ 9:35am

    thank you!

    Thank you, Mike, for a fairminded look at the differences we have, within, as you correctly note, a shared enthusiasm for a vigorously circulating remix culture!

     

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


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