Fair Use Is About Much More Than Remixing: It's About Allowing All Kinds Of Innovation

from the missing-out dept

On Tuesday, the House Judiciary Committee held yet another hearing concerning copyright and possible copyright reform, this time, focusing on fair use. As in the past, the Judiciary Committee continues to set up these hearings in a way that they think is "balanced" but which basically just guarantees people will disagree with each other. In this case, you had two people talking about the importance of fair use, and two people worried about the impact of fair use. There were moments that were both infuriating and enlightening during the panel (though, many more that were infuriating, generally because some of those both asking and answering the questions didn't seem to understand fair use at all). But, even more to the point, even when discussing the benefits of fair use, the hearing seemed to be focused on how fair use helped people write fan fiction or create remixes and mashups. That's all very important, but it almost downplays the real value of fair use.

Fair use is about so much more than that. Fair use has enabled a large part of the internet to thrive, and with it, tremendous opportunities for individuals to communicate. It has also been a key part of what has enabled the entertainment industry to thrive. When people treat fair use as this little "toy" that lets some people "play around" with writing fan fiction or remixing, it really underplays just how important fair use has been to the very core setup of the internet and culture. Without fair use, it would be almost impossible to build a search engine. Without fair use, blogging would be much more risky. Without fair use, a show like the Daily Show would be almost impossible. And yet, no one on the panel seemed to represent this aspect of fair use, focusing instead on just the creative side of things.

Ed Black has a great article detailing much of this, which I'm confident that I can quote because of fair use:
For example, it may be hard to believe, but 30 years ago last week the Supreme Court came one vote from labeling home video a "pirate" technology. Were it not for Justice Stevens' foresight and the fair use doctrine, an entire industry and a generation of technological innovation would have been sacrificed on the altar of copyright protection. (Ironically, home video turned into Hollywood's cash cow less than a decade after movie studios had attempted to strangle it in the crib.)

The same fair use principle that saved home video has also served MP3 players, DVRs, smartphones and a considerable portion of modern Internet functionality, like cloud computing, that we depend upon today. In recent years, we've seen courts invoke fair use to validate a variety of transformative, socially valuable services, including online search engines, including image and book search; commercial-skipping and time-shifting with DVRs; and a service that compares students' papers against a database for plagiarism (who, understandably, might not want to authorize use of their papers to prevent cheating).

Of course, fair use benefits industries far beyond the technology sector. While fair use has always been recognized as protecting widely-enjoyed television programming like The Daily Show, The Colbert Report and Saturday Night Live, its significance extends far beyond parody. Just in the last year, the fair use doctrine came to the aid of movie studios, a Broadway musical, a rock band and the NFL, all of whom faced baseless piracy accusations. Woody Allen's Midnight in Paris led to a lawsuit because the actor Owen Wilson quoted nine words from the author William Faulkner. (Yes, you read that right: nine words.) The musical Jersey Boys was sued for including seven seconds of a 1960s TV program. The NFL was sued because online footage from old football games showed brief glimpses of the original Baltimore Ravens logo -- a logo that had been ruled to infringe copyright after the season was played. In each case, courts sided with the defendants and threw out the case on the basis of fair use. That such lawsuits were brought in the first place is a sad commentary on the state of our intellectual property system, but at least judges were able to resort to the fair use doctrine to reject the most absurd claims.
I've talked for a while about how it's wrong to think of fair use as just an "exception or limitation" to copyright -- since it's actually the other way around. Fair use is the public's right. It's part of the right to free speech, where copyright is actually an "exception or limitation" on that right. But in many ways it goes further than that, since fair use has enabled so much great and powerful innovation as well. And yet, all too often, people think of fair use as just this little corner of the copyright world that lets people create mashups and write fan fiction. Those uses are important too -- the expression and culture that comes out of those areas are really quite impressive when you look closely. But it's important not to ignore just how fundamental fair use is to enabling both the tech industry and the entertainment industry to thrive over the years.


Reader Comments (rss)

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  1.  
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    Jay (profile), Jan 30th, 2014 @ 2:53pm

    Fair Use is not the exception...

    Without Fair Use, Nintendo never would have had Donkey Kong.

    Without Fair Use, Hollywood would have had to pay for Edison's patents on the cameras and stayed in the areas of that monopoly.

    Without Fair Use, Hollywood would not have the diversity to spread information on DVDs for the big CEOs to see about great ideas that would make them money.

    Without Fair Use, Hollywood wouldn't be able to pay Chris Dodd to try to control it.

    Without Fair Use, Youtube, Spotify, Grokster, and other technologies wouldn't exist which allow people to share information about books, movies, music, and other ways to educate themselves for much cheaper than the copyright monopolies would want for artificial scarcities.

    Fair Use is not the exception. It's the rule. Hollywood abuses it to destroy their competition and that's the worst part about this.

     

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    Anonymous Coward, Jan 30th, 2014 @ 3:11pm

    " the expression and culture that comes out of those areas are really quite impressive when you look closely."

    you talk all warm and fuzzy about fair use, and how the world is a far better place with fair use, and how it created the internet,, blah blah..

    But as usual, no examples, no "this is what fair use has given us", none of that..

    if it is such a great and wonderful thing, you should be overflowing with examples, (you know, to back up your claims)

    BUT NO, not a simple example! just fluff..

    "But in many ways it goes further than that, since fair use has enabled so much great and powerful innovation as well."

    geez, you say these things, but never seem to be willing to back it up with ... you know... FACTS !!!
    _____

    "since fair use has enabled so much great and powerful innovation as well"

    SUCH AS ????

     

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  3.  
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    Rikuo (profile), Jan 30th, 2014 @ 3:23pm

    Re:

    Ah! An excellent specimen. Come, gather round everyone, you can never tell when one of these fascinating creatures will pop up. The scientific term for this creature is selective-us reading-itus. This species demonstrates intense anger and social maladjustment. How you can tell them apart from other species is their ability to read a document, then complain that the author never mentioned something, when in fact they did.

    Aaaah, I laugh whenever I see such curious animals. I can never quite figure out how they're able to do it.

     

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  4.  
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    Mason Wheeler (profile), Jan 30th, 2014 @ 3:27pm

    Re: Fair Use is not the exception...

    Without Fair Use, Nintendo never would have had Donkey Kong.

    Factually incorrect, as when the issue was taken to trial, it came out that the studio claiming copyright had actually previously acknowledged that King Kong was in the public domain, and thus not subject to copyright (and not requiring fair use to make use of) anymore in the first place.

     

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    out_of_the_blue, Jan 30th, 2014 @ 3:29pm

    "helped people write fan fiction or create remixes and mashups"-- without which, they'd be totally dumb!

    When someone else's creation is central to your own output, it actually goes past fair use and becomes variously theft and usually horrible mis-use that ruins the original value. In general, society can not only do without those items, but would be better off: if not doing imitative crap, someone might come up with NEW crap. Copyright is GOOD if keeps us from floods of imitations.

    And again, Mike puts out the old "VCR" myth TOTALLY ignoring that without effective copyright enforcement and a moral culture that gives the rewards to the creator, then Hollywood would NOT have been able to get money from its back catalog or current. Mike writes of when copyright is enforced as if the resulting prosperity for the producers were somehow DUE sheerly to the gadgets and not to the content.

    Any damn fool can copy. Copyright was put in statute to prevent greedy damn fools from profiting off what others made. (167 of 192)

    11:27:39[m-730-3]

     

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  6.  
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    ottermaton (profile), Jan 30th, 2014 @ 3:34pm

    Wow, that didn't take long at all.

     

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  7.  
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    RD, Jan 30th, 2014 @ 3:44pm

    Re: "helped people write fan fiction or create remixes and mashups"-- without which, they'd be totally dumb!

    "When someone else's creation is central to your own output, it actually goes past fair use and becomes variously theft and usually horrible mis-use that ruins the original value."

    Oh ok. So you agree that Disney needs to have 70% of it's catalog of product invalidated and removed from their copyright. Right?

     

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  8.  
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    CK20XX (profile), Jan 30th, 2014 @ 3:45pm

    Re: Re: Fair Use is not the exception...

    I guess it might be a better example of how copyright law tempts owners to see if they can get away with having their cake and eating it.

     

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  9.  
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    PopeyeLePoteaux (profile), Jan 30th, 2014 @ 3:48pm

    Re:

    Your intellectual myopia never ceases to amuse me, Darryl.

    "But as usual, no examples, no "this is what fair use has given us", none of that.. " "SUCH AS ????"

    Industries that rely on fair use exceptions to copyright law grew faster than the rest of the US economy from 2002 to 2007, according to a study commissioned by the Computer and Communications Industry Association (CCIA), which counts the likes of eBay, Google, Microsoft and Yahoo among its membership.

    The CCIA study found that fair use-reliant ndustries grew by 5% and accounted for 23% of real US economic growth during the five year period under examination, while companies benefiting from limitations on copyright-holders’ exclusive rights, such as 'fair use' generated revenue of USD4.7 trillion in 2007 – a 36% increase over 2002.

    The research indicates that the industries benefiting from fair use and other limitations and exceptions make a large and growing contribution to the U.S. economy. The fair use
    economy in 2006 accounted for $4.5 trillion in revenues and $2.2 billion in value added, roughly one-sixth of total U.S. GDP. It employed more than 17 million people and
    supported a payroll of $1.2 trillion. It generated $194 billion in exports and rapid productivity growth.

    The protection afforded by fair use has been a major contributing factor to these economic gains, and will continue to support growth as the U.S. economy becomes even
    more dependent on information industries.


    The most significant growth over this period was in Internet publishing and broadcasting, web search portals, electronic shopping, electronic auctions and other financial investment activity.

    There is indded an economic growth and a practical benefit in the distribution of culture and information with fair use.

    http://www.arl.org/storage/documents/publications/ccia-fair-use-study-exec-2006.pdf

    Darryl, you are a moron.

     

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  10.  
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    Anonymous Coward, Jan 30th, 2014 @ 3:51pm

    so why do you think it's played done as much and as often as possible then? that's it, so it can gradually be eroded until it can be done away with completely. the internet, mainly thanks to the USA entertainment industries and Hollywood is in a critical phase atm, with there being a very real chance that there is going to be a two tired system. the rich and powerful will be using it to it's full potential and the rest of us can just suck up the dregs. the greatest information sharing platform that this planet has seen is going to basically be destroyed by a fucking movie industry! many thanks for that, you bunch of cunts! you dont realise what you are doing in your fateful quest to maintain control of the way your products are distributed and viewed and rather than change your own ridiculous stance you screw it up completely for everyone. perhaps now you'll be satisfied!

     

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  11.  
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    PopeyeLePoteaux (profile), Jan 30th, 2014 @ 3:52pm

    Re: Re:

    Ugh, sorry for the bad format, I dunno what happened.

     

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  12.  
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    Anonymous Coward, Jan 30th, 2014 @ 4:02pm

    Re: "helped people write fan fiction or create remixes and mashups"-- without which, they'd be totally dumb!

    When someone else's creation is central to your own output, it actually goes past fair use and becomes variously theft and usually horrible mis-use that ruins the original value.

    Well, Techdirt seems central to your own output. So are you a thief? You certainly seem to horribly "mis-use" this site.

     

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  13. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Jan 30th, 2014 @ 4:08pm

    Copyright + gadgets = prosperity for producers. -- Gadgets without copyright = disaster for all.

    The "VCR" myth point I reached for above better stated. Pirate Mike always throws that up as Hollywood taking undue alarm over new gadgets, but in fact, if copyright were not enforced and piracy became widespread (especially now with essentially perfect copies easily and endlessly distributed), then the whole content production system would collapse. It's simply not possible to profit from creating intellectual property without the protections codified in copyright. You can't compete with free when it's your own product.

    The focus here at Techdirt is always on how to use someone else's product for free, NOT on how to create your own or how to profit from your own creation (see Mike's Step 2: ?????). Getting someone else's valuable product for free was the actual basis of Megaupload, a pirate file host that Mike still defends.

    Mike's notions are all get-rich-quick schemes by using products someone else made. His continued defense of Megaupload shows his ideal "business model": neither pay to produce nor royalties on any of the files hosted so costs are just above bandwidth, and able to avoid legal liability so long as pretend ignorance of infringed content. (120 of 193)

    12:07:53[n-50-8]

     

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  14.  
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    Anonymous Coward, Jan 30th, 2014 @ 4:20pm

    Re:

    geez, you say these things, but never seem to be willing to back it up with ... you know... FACTS !!!


    Geeze, go easy here. I'm having a hard time finding a place between bouts of laughter to catch a breath.

    Hypocrisy at it's finest is on display for all to see!

     

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  15.  
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    RD, Jan 30th, 2014 @ 4:46pm

    Re: Copyright + gadgets = prosperity for producers. -- Gadgets without copyright = disaster for all.

    "but in fact, if copyright were not enforced and piracy became widespread (especially now with essentially perfect copies easily and endlessly distributed), then the whole content production system would collapse."

    Bullshit. You are talking out your ass. You are't old enough to remember the history of "piracy" but it has been going on for DECADES, in one form or another. Your scare-tactic panic "the world will end!" about the effects of "piracy" is garbage. If there was ANY truth in it, it would have collapsed LONG AGO. "piracy" is not significant enough of a problem to put any of these industries out of business. The stuff is ALREADY out there, in triplicate, and has been for a very long time, so either the system should have collapsed already, or your argument is bullshit.

     

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  16.  
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    Internet Zen Master (profile), Jan 30th, 2014 @ 4:58pm

    Re: "helped people write fan fiction or create remixes and mashups"-- without which, they'd be totally dumb!

    if not doing imitative crap, someone might come up with NEW crap.


    Ugh... you sound like those self-righteous gatekeeper/admins running the Creepypasta websites, demanding new stories must be "teh original" and deleting stories that even have a whiff of inspiration from a previous work, declaring them lazy writing, and say that those who can't come up with 'original work' should just quit trying and stop cluttering the community with 'unimaginative crap'.

    Do us all a favor ootb: Go die in a fire.

    [/normally don't give a shit, but that whole shtick has been a recent problem over in the creepypasta writing community]

     

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  17.  
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    Just Sayin', Jan 30th, 2014 @ 5:14pm

    Re: Re:

    "Industries that rely on fair use exceptions to copyright law grew faster than the rest of the US economy from 2002 to 2007, according to a study commissioned by the Computer and Communications Industry Association (CCIA), which counts the likes of eBay, Google, Microsoft and Yahoo among its membership."

    Yup, just like the economy of China has grown by ignoring copyrights and patents. It's wonderful and looks great on paper, but when you look at what is really happening, it may not be worth it.

    See, that strategy means you can never go past what is already there. You are essentially regurgitating what already exists, pouring the water out of one jug and putting it into another and claiming to have a new source of water. You don't, it's what you already had.

    When they reach their maximum (taken advantage of all that exists before them) most run out. China as an example has had a huge drop in the growth rate of their economy as they have picked all the low hanging fruit and are now actually having to innovate rather than replicate. They are having a very hard time to do it, most of their skills are in mimicking and producing variations on a given product.

    Copyright works the same way. A library doesn't actually produce anything, they are only a holder. Youtube doesn't produce anything, it's just a holder. Fair use by youtube doesn't suddenly create new stuff, it just creates use, and usually without compensation to those who actually produced it.

    So as software companies have taken every day things and tasks and tacked "on the internet" or "on computer" on the end of them, we have not advanced in the sense of innovative new ideas, we just moved our picture collections off of paper and made them digital, and instead of annoying people with our holiday pictures when we see them, now we annoy them with them on facebook and instagram.

    "The protection afforded by fair use has been a major contributing factor to these economic gains"

    Interestingly, the report doesn't look at the economic losses either, such as mass unemployment in what use to be the retail distribution of music, movies, and books... retailing has taken a terrible hard hit during these times, and often the online gains are pennies compared to the dollars lost on the other side. For all the "gains" of the internet age, we live in a society with high unemployment, high debt, and so on. Such a huge boom should be floating all boats, but instead appears to be the anchor keeping them down.

    Fair use hasn't made us all rich, it appears to be making us poor (but well entertained). Bread and circuses, anyone?

     

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  18.  
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    JP Jones (profile), Jan 30th, 2014 @ 10:16pm

    Re: Copyright + gadgets = prosperity for producers. -- Gadgets without copyright = disaster for all.

    Can't compete with free?

    Riot games makes an estimated $150 million per year. Riot games only has one title, League of Legends, which is free. Heck, it doesn't even make it's money with ads.

    I could go on and on, discussing free-to-play, Kickstarter, comedians who put their shows on YouTube, blah blah blah, but you have such a twisted understanding of reality it's really not worth it.

    People will pay for things they value, whether or not they can get it for free. I can get any movie, game, or song I want for free, and easily, but I pay subscriptions to Netflix, Slacker, and have purchased thousands of dollars in Steam/GoG games. Why? They offer a better service.

    Here's the flaw in your argument. Copyright is already not enforced and piracy is widespread. Yes the industry just keeps growing, year after record breaking year. In fact, infringement is easier than ever as bandwith and technology improve.

    Copyright does nothing to benefit the majority of artists. It doesn't help consumers at all. So who's benefiting? Oh, right, the giant publishers that can't cope with technology that made publishing obsolete.

    If they die out it will have exactly the same effect as the death of the horse and buggy industry in the 20th century...nobody cares. And maybe the horse and buggy guys can go work for a company that actually does something productive instead of stealing from artists.

    You wan't moral outrage? Go read the history of the "copyright industry's" abuses of artists, and how they routinely deny artists access to their own work. Now look up the word "steal" and note how it involves taking something away from someone else. Who's the real thief? The infringer, or the person who takes someone else's work as their own and sells it?

    You've got your anger all backwards, and it's sad and funny at the same time.

     

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  19.  
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    Sheogorath (profile), Jan 30th, 2014 @ 10:21pm

    IMHO...

    Those who oppose reasonable restrictions on the monopoly that copyright is (maximalists) are the Sangivorus Satanicus of the creative world.
    Disclaimer: I am a copyright owner.

     

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  20.  
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    PaulT (profile), Jan 31st, 2014 @ 1:32am

    Re: Re: Fair Use is not the exception...

    True, but the **AAs are busy trying to both stop new works entering the public domain and retroactively stealing from it.

    Either way, DK stands as a great example of how something can be fairly borrowed in order to create a new, unique work without tarnishing the original.

     

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  21.  
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    Rich, Jan 31st, 2014 @ 5:04am

    Re: IMHO...

    "Disclaimer: I am a copyright owner."

    And so is anyone that ever put pen to paper, snapped a picture, recorded a home video, recorded a message, did a finger painting, or took a dump and called it art.

     

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  22.  
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    piratey, Jan 31st, 2014 @ 5:18am

    Does this mean I can copy Disney movies and sell them at a swap meet? Seems fair.

     

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  23.  
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    Anonymous Coward, Jan 31st, 2014 @ 5:19am

    Have to tell the Supreme Court that Universal v. Sony was a "fair use" case. The syllabus, which provides the precedential "holdings" do not mention it as one of the court's holdings, which turned upon "secondary liability". Fair use was discussed in dicta, but was not a necessary element for what the court ultimately held.

     

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  24.  
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    squall_seawave (profile), Jan 31st, 2014 @ 10:33am

    ok in my opinion fair use right now is a bad joke is useless and less than useless

    in my opinion an efective fair use algorithm should be like this

    is a complete copy ?
      Y is for educational purposses?
      Y Fair use
      N is still selling in stores?
        Y could be Copyright infringement
        N the original publisher has disbanded/died or merged with another?
           Y Fair Use
           N it has been more than 10 years from original release?
              Y Fair Use
              N could be Copy right infringement
    N improves the original work?
       Y Fair Use
       N it is for reviewing or news?
         Y Fair Use
         N it is a minor case that the most likely cause is a coincidence
           Y Fair Use
         N it is a derivative of a derivative work
             Y the original is in public domain?
             Y Fair Use

    and for everything else they go to trial/settlemen not that fair i think but better what we have here

     

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  25.  
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    Anonymous Coward, Feb 1st, 2014 @ 12:53am

    darryl and horse with no name just hate it when due process is enforced.

     

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  26.  
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    Sheogorath (profile), Feb 2nd, 2014 @ 6:17am

    Re: Re: IMHO...

    Well, I happen to be a copyright owner who's done more than 'took a dump and called it art'. Actually, tell a lie. That's one thing I've never done.

     

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  27.  
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    Anonymous Coward, Feb 7th, 2014 @ 6:53am

    Re: Re: Re:

    Interestingly, the report doesn't look at the economic losses either, such as mass unemployment in what use to be the retail distribution of music, movies, and books... retailing has taken a terrible hard hit during these times, and often the online gains are pennies compared to the dollars lost on the other side. For all the "gains" of the internet age, we live in a society with high unemployment, high debt, and so on. Such a huge boom should be floating all boats, but instead appears to be the anchor keeping them down.

    Provide citations and evidence that this economic downturn is directly or even indirectly the cause of fair use. So far you are making a lot of noise, but no sense at all.

     

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  28.  
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    PaulT (profile), Feb 7th, 2014 @ 7:43am

    Re: Re: Re: Re:

    "citations and evidence"

    Don't hold your breath, these screeds don't come with such things. At least the focus is on attacking "fair use" for once rather than pretending that any dissenting voice is a "pirate".

    But, other than that, it looks like the same screed and the same basic errors as always - pretending that "retailing" doesn't include digital services, for example. Acknowledging unemployment, debt and the overall recession but somehow not realising that this affects the customers of those industries as well - industries that sell discretionary products that are low on anyone's list of needs during such times.

    They pretend that services like YouTube don't encourage any new works to be created or create any advantage. They pretend that the move to digital was purely the tech industry's doing rather than meeting long-extant consumer demand, and ignore other major contributing factors such as competition from other media (e.g. videogames, mobile), unbundling and so on.

    In other words, strawmen, easily debunked assumptions and outright falsehoods. Why would they want to cite facts?

     

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  29.  
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    Anonymous Coward, Feb 10th, 2014 @ 2:13pm

    so what Masnick is telling us is how well the copyright laws and its fair use laws are working, you CAN have FAIR USE, if your use meets the requirements under the law for fair use.

    Courts arguing two sides of an argument, and being "balanced" and you agreeing with one side and not the other !!!!! WOW, who would of ever thought that could happen??

     

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