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.
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.
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."
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 10ís 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 userís computer to assist in accessing the Internet is a transformative use.
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.
James watt in patenting a variation of the steam engine, got his patent because he though "what if I move the water condenser box away from the fire box".. pretty obvious, it's easier to cool steam back to water away from a heat source..
I always take the side that I think has the better legal argument.
No, you don't. You always take the side of the copyright holders, regardless of the merits of their cases. Not once have you ever sided against copyright holders - or even people who merely claimed to be copyright holders.
You're more than just a copyright maximalist; you're a copyright reactionary.
I also think that when CNET uploaded 220M copies of Limewire with instructions showing it being used for infringement,
Except that's not what they did.
They changed their behavior in the end, did they not?
No, they did not.
Limewire, the company, itself prohibited all distribution of its software (ironically, even threatening IP lawsuits if anyone did so). That includes CNET, of course. But Frostwire - the open-source version of Limewire - is still available from CNET as we speak.
On the other hand, the lawsuit against CBS/CNET was dropped like a hot sack of dog shit.
It won't disappear if the proper licensing fees are paid.
There are no "proper licensing fees" for sound recordings. Unlike the statutory rates for songwriters, the copyright holders for sound recordings can charge whatever they like as a "license," secure in the knowledge that they have a monopoly on the recordings.
In fact, the issue with Grooveshark is that UMG apparently won't license any of their music to them, at any price.
DMCA is the only reason any of these sites can exist.
If by "any of these sites" you mean Google search, YouTube, Soundcloud, Flickr, DeviantArt, Wikipedia, Facebook, Twitter, or any site with user-generated content, then you're right.
And it's a very, very good think that they can all "skirt" liability.
Good bye Grooveshark, try not to bleed out on the carpet on the way out.
It amazes me that you think Grooveshark's death would be good in any way for content creators. They certainly have issues, but they are at least attempting to work out deals with copyright holders. (Before the deal with EMI fell through, Grooveshark had already given EMI $2.3 million - money that it wouldn't have otherwise.)
This is a perfect example of killing the goose that laid the golden eggs.
If the DMCA doesn't apply to pre-1972 recordings, then providers can simply ignore takedown notices, right?
They can do that now, in fact. Failing to follow the DMCA doesn't automatically make you liable for infringement.
But if indeed pre-1972 recordings aren't covered, then you basically have to take down all of them, whether told to or not. Otherwise, as this court makes clear, even a single pre-1972 sound recording means you can get sued.
Would you lose the lawsuit? Maybe yes, maybe no - it depends entirely on how state law determines vicarious liability. And if you win in one state, all the copyright holder has to do is bring a suit in another state with more favorable laws.
And, of course, even if you win, the costs of the lawsuits can put you out of business. Look at Veoh.
So some amorphous intent that you haven't even demonstrated to exist should control over the plain language of the Act?
According to the Senate report on the DMCA, the intent was that the safe harbors section "provides greater certainty to service providers concerning their legal exposure for infringements that may occur in the course of their activities."
In other words, the 512(c) safe harbor doesn't relieve anyone of liability who would have been liable in the absence of 512(c).
Paragraph 512(a)(1) exempts a provider from liability on the basis of direct infringement for transmitting material over its sys- tem or network at the request of a third party, and for the intermediate storage of such material, in certain circumstances. [...] This exemption codifies the result of Religious Technology Center v. Netcom On-line Communications Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995) ("Netcom"), with respect to liability of providers for direct infringement. [...]
Paragraph 512(a)(2) exempts a provider from any type of monetary relief under theories of contributory infringement or vicarious liability for the same activities for which providers are exempt from liability for direct infringement under paragraph 512(a)(1). This provision extends the Netcom holding with respect to direct infringement to remove monetary exposure for such limited activities for claims arising under doctrines of secondary liability. [...]
Paragraph 512(a)(3) similarly exempts a provider from monetary relief under theories of contributory infringement or vicarious liability for conduct going beyond the scope of paragraph (1), where a providerís level of participation in and knowledge of the infringe- ment are low. [...] Even if a provider satisfies the common-law elements of contributory infringement or vicarious liability, it will be exempt from monetary liability if it satisfies the criteria in subparagraphs (A) and (B).
The knowledge standard in subparagraph (A) [...] differs from existing law, under which a defendant may be liable for contributory infringement if it knows or should have known that material was infringing.
So, no, it's not simply codifying the Netcom decision, nor common law notions of liability in general.
On the other hand, the Senate report doesn't mention Netcom at all, nor does it indicate at any point that it's simply codifying any existing case law. In fact, it makes it clear that the limitations on liability are entirely distinct from any limitations on liability that arise under case law:
New section 512 does not define what is actionable copyright infringement in the online environment, and does not create any new exceptions to the exclusive rights under copyright law. The rest of the Copyright Act sets those rules. Similarly, new section 512 does not create any new liabilities for service providers or affect any defense available to a service provider. Enactment of section 512 does not bear upon whether a service provider is or is not an infringer when its conduct falls within the scope of section 512. Even if a service providerís activities fall outside the limitations on liability specified in the bill, the service provider is not necessarily an infringer; liability in these circumstances would be adjudicated based on the doctrines of direct, vicarious or contributory liability for infringement as they are articulated in the Copyright Act and in the court decisions interpreting and applying that statute, which are unchanged by section 512. In the event that a service provider does not qualify for the limitation on liability, it still may claim all of the defenses available to it under current law. New section 512 simply defines the circumstances under which a service provider, as defined in this Section, may enjoy a limitation on liability for copyright infringement.
The Senate report also seems to directly contradict the court's ruling in this case. The report makes it clear that section 512 is not "a limitation" on copyright rights, as it "does not create any new exceptions to the exclusive rights under copyright law."
But you're right, "rant" is the wrong word. I would call it a "smear campaign," but that implies that being associated with Google is a "smear," which in itself is ludicrous. So, what it is, in reality, is a wingnut conspiracy theory.
He's of Chechen descent, and committed an act of terrorism, but there's no evidence that he was part of a terrorist organization.
He was here on a visa as a "student".
He was here because his family was seeking political asylum, not on a student visa. He has been living in the U.S. since 2002, when he was roughly eight years old. He went to high school at Cambridge Ringe and Latin school, graduated, and was attending college at UMass Dartmouth.
He has been a naturalized citizen - not a "student visa holder" - since 2011.
He was indoctrinated to do this.
We still don't know what his motivations were. Neither he nor his family have any known connection to any terrorist organization.
Quit trying to convey innocence for terrorists, you only make matters worse when you do.
Even the guilty must be treated like human beings with human rights. Not doing this is precisely what will "only make matters worse."
All my human rights activist friends would agree to throwing him into Gitmo.
You know what? I live less than a mile from the Watertown standoff, and live in one of the areas that was on lockdown. One of the bombing victims went to the same college I do. Another one (Krystle Campbell) worked with a friend of mine at the Summer Shack.
And I don't want this kid thrown into Gitmo. In fact, I think everyone who advocates "justice" like this, is a thug who just wants a little armchair vengeance.
Under Interpol laws, terrorists are to be put to military trial.
Obama already said that he is going to be tried in a civilian court of law, and not under a military tribunal.
And how is CCleaner not a tool for deleting files?
It wouldn't delete anything relevant to showing copyright infringement. It mainly works with cleaning up browser files: temporary files, cookies, history, etc. It also empties the recycle bin, gets rid of Windows error logs, removes unused Windows registry entries, and so forth.
But it would not, for example, get rid of any files that finished downloading via the browser, nor would it touch anything whatsoever that had to do with torrent files.