If Fair Use Protects Free Speech, Shouldn't It Be Seen As Default Until Proven Otherwise?
from the free-speech-ain't-free dept
We’ve talked a lot recently about questions concerning the conflict between copyright law and the First Amendment. Historically, the courts have argued that there are two “safety valves” on copyright law that protect it from running afoul of the First Amendment: the idea/expression dichotomy and fair use. I’ve yet to find this argument convincing for a variety of reasons, in large part because neither the idea/expression dichotomy nor the fair use doctrine are very broad. In fact, they’re quite limited and often applied extremely arbitrarily. We’ve argued in the past that, to some judges, there isn’t really an idea/expression dichotomy — as they ignore that concept when it’s convenient to them (such as when they banned the unauthorized sequel to Catcher in the Rye. Along those same lines, “fair use” is often extremely arbitrary as well. Judge Kozinski has famously questioned the arbitrariness of fair use, suggesting that in most cases, a judge can rule either way and the binary-ness of the decision can be troubling.
Copyright and fair use expert Peter Friedman has grappled with this in the past as well, saying that there are some cases where fair use is easy to determine… a statement he later had to backtrack on when the example he used in that original article — a case where he insisted the fair use call was an easy one went the other way.
Michael Scott recently pointed us to the latest draft of a paper by law professor Ned Snow on how fair use should be viewed in the legal system. He’s written similar papers before, but he focuses in on two key points. The first is that until the mid-80s to early-90s, it “fair use” was considered mostly a “matter of fact” rather than a “matter of law.” As such, it was often for juries to decide, rather than judges. However, in the last few decades that’s flipped almost entirely, and it’s exceedingly rare to find a court that views fair use as a matter of fact, rather than a matter of law. That is, the judge will decide, not the jury.
While he focuses on (what he claims is) a misinterpretation of a Supreme Court ruling that resulted in this, I also wonder if the 1976 Copyright Act contributed to the issue — since it took fair use from a common law/case law arena and put it into the statute with the now famous “four factor” test. William Patry, one of the most respected and recognized (and cited) names in copyright law has argued that this codification of fair use was a major mistake. He’s also pointed out that many now falsely believe that the four factors are the only way to judge fair use, when that was never the intention at all. He’s reasonably worried that courts no longer look to see if something is actually “fair,” but rather jump straight to the four factor test, which (again) can often go either way depending on what the judge wants to do.
While Snow’s paper tries to deal with this with a few suggestions concerning both moving the fair use determination back to the jury and changing the way appellate courts review such rulings, one point that he made in the piece caught my eye and seems worth narrowing in on. He points out that, as it stands today, copyright law favors the copyright holder over the fair user. That is, fair use is only seen as a defense, rather than a right. He points out how this is problematic from a First Amendment point of view, because the burden is wrong:
Presently copyright law unfairly favors copyright holders over fair users, imposing burdens on fair users that stifle fair-use creativity. Fair users face a burden to prove the fairness of their use, which becomes damningly formidable given the uncertainty that surrounds any fair-use question; when fair use is the issue, infringement is the presumption. Facing this formidable burden, fair users must contemplate a punitive penalty that chills future attempts at fair use. By contrast, copyright holders who might doubt their claim against a fair user contemplate a possibility of not profiting from the disputed use. This imbalance between copyright and fair use becomes especially poignant when considering that the Constitution requires copyright to refrain from suppressing fair uses under the Free Speech Clause. Therefore, copyright?s unequal treatment of fair use, coupled with a constitutional demand for speech protection of fair use, requires that the standard of review favor fair users.
While he then focuses in on the somewhat technical (and probably boring if you’re not a lawyer) standards on how courts should review fair use cases, the point in that paragraph above struck me as worth pondering. Considering the claim that fair use is supposed to be the safety valve of free speech, and free speech exceptions are always in extraordinary cases where high bars are set for proof, shouldn’t the same be true of copyright?
That is, if we truly believe that fair use is the valve on copyright to protect free speech, shouldn’t the assumption be that the use is fair until the copyright holder proves that it is not? In other words, if we really believe in the First Amendment and that fair use is supposed to protect it from over aggressive use of copyright law to censor, then fair use should be assumed, and the legal burden for proving that a use is not fair should fall on the copyright holder. It seem that would go a lot farther in protecting free speech.
Filed Under: copyright, fair use, free speech
Comments on “If Fair Use Protects Free Speech, Shouldn't It Be Seen As Default Until Proven Otherwise?”
If Fair Use Protects Free Speech, Shouldn't It Be Seen As Default Until Proven Otherwise?
Yes.
Freedom Isn't Free
It costs folks like you and me. And if you don’t throw in your buck ‘o five who will?
Some very good points, some lawyer word-twisting
Hmm. I would agree with the author that deciding against fair use shouldn’t be done at summary judgment time. However, even as biased in his favor as I am, I find it hard to swallow his lawyer-esque twisting of the Harper Surpreme Court case finding on page 14 of his report (page 16 of the pdf):
Here’s the Courts words that he tries to explain away:
“Where the district court has found facts sufficient to evaluate each of the statutory factors, an appellate court need not remand for further factfinding but may conclude as a matter of law that the challenged use does not qualify as a fair use of the copyrighted work.”
And here’s the author’s valiant effort to show that the court didn’t really mean what they said:
“The instruction that courts “need not remand for further factfinding” means that appellate courts could remand for further factfinding, but that they are not required to do so. That is, the phrase “need not remand” implies that courts in fact could remand, but that it is not necessary; and the phrase “for further factfinding” demonstrates that if courts were to remand, the remand would be “for further factfinding.” That further factfinding on remand, then, could not represent a finding of historical facts, i.e., facts “sufficient to evaluate each of the statutory factors,” for in the situation that the Court posed, the trial court had already found the historical facts necessary to perform the analysis. Further factfinding must correspond to something other than the historical facts. And other than the historical facts, the only thing to be determined in the analysis is the inferences, so the further factfinding must correspond to the drawing of inferences.”
I am fully persuaded that the 2 sentences in the harper case shouldn’t have been written by the court, however, I can’t pretend that they don’t mean what they say.
In practice it already is the default
That is, if we truly believe that fair use is the valve on copyright to protect free speech, shouldn’t the assumption be that the use is fair until the copyright holder proves that it is not?
Don’t forget that the so-called aggressive legal action you mention costs the plaintiffs too. Just bringing a case is expensive and that’s why so few cases are brought. And many people get to continue to think that “fair use” protects all of their plagiarism and outright theft.
Re: In practice it already is the default
Mike NEVER considers the plaintiff’s side in copyright litigation, so no surprise that he’s not considered the cost to the plaintiff. He thinks the plaintiff is wrong every time, and it’s views like that that make it hard to take him seriously when he discusses any of this.
The presumption going into court is that the defendant did not infringe. Should the presumption be that the defendant did not infringe, but if it’s later determined that he did, then it’s presumptively fair use? That doesn’t make a lot of sense to me. Having the defendant bear the burden of proving that their use was fair once it’s been determined that they in fact did infringe makes sense to me.
What Mike’s proposing is similar to having the defendant in a murder trial prove that is was self defense. Once the prosecution proves that the defendant murdered someone, it’s up to the defendant to prove that it was self defense. The prosecution doesn’t have to show that it wasn’t self defense. That wouldn’t make much sense.
I haven’t read the Ned Snow article at issue here, but I’ve downloaded it and I’ll read it later this weekend. I’m curious what the arguments are. I like boring technical talk about burdens and standards of review. 🙂
Re: Re: In practice it already is the default
He thinks the plaintiff is wrong every time,
Maybe because copyright is wrong.
Abolish copyright.
Re: Re: In practice it already is the default
I’m sorry, I don’t understand why you wrote this:
Having the defendant bear the burden of proving that their use was fair once it’s been determined that they in fact did infringe makes sense to me.
It seems like a truism, or a logically circular statement, or a backhand way of saying that infringement should be a finding of fact, something that has to be proved.
But I do like raising the strawman equating infringement with murder. “Theft” isn’t quite strong enough, eh?
And then you go on with: I like boring technical talk about burdens and standards of review. You are a lawyer, aren’t you?
Re: Re: Re: In practice it already is the default
The way fair use works is as an affirmative defense. Once the plaintiff has shown that the defendant infringed, i.e., that they in fact did violate one of the plaintiff’s exclusive rights, then the burden shifts to the defendant to raise their defenses, fair use being one available defense. The defendant doesn’t raise the fair use defense until it’s already been shown that they violated the plaintiff’s rights.
It’s exactly analogous to how the burden shifts in a murder trial. Once the prosecution shows that the defendant killed the victim, then the defendant can raise the affirmative defense of self defense. The defendant doesn’t bring up self defense until after the prosecution has shown that the defendant killed the victim.
There’s no strawman at all. Nor am I equating infringement with murder. All I’m saying is that procedurally speaking, the fair use defense and the self defense defense work the same way. And it’s a way that works well and makes sense.
Re: Re: Re:2 In practice it already is the default
As I see it, Mike’s point was that at least until recently, upholding freedom of speech was a pretty important US principle. Freedom of speech, particularly unpopular political speech was allowed and even encouraged. Think of the Skokie, Illinois, National Socialist rallies in the 70s, for example.
If we wish to uphold that same kind of freedom of speech, fair use should be presumed, rather than made into a defense. Making fair use into a defense rather than a presumption results in severely diminished freedom of speech.
You seem to be advocating that the status quo works well, and that maybe we should move further in the direction of eliminating fair use.
Re: Re: Re:3 In practice it already is the default
The status quo is already that the presumption is that the speech is not infringing. That protects free speech.
Re: Re: Re:4 In practice it already is the default
But you just told me that it wasn’t, one or two replies up. You told me that it was an affirmative defense that someone had to have their lawyers prove, as a matter of fact. That’s not presumption, except in some narrow legalistic sense.
That’s not a common-sense presumption, that’s the legal presumption. I don’t care for all this lawyerly word-twisting.
Re: Re: Re:5 In practice it already is the default
The presumption is that the alleged infringer did not infringe. Once the plaintiff shows that infringement did in fact occur, then the burden shifts to the defendant to raise their defenses, such as fair use.
I’m not trying to twist anything. Sorry if I’m confusing you.
Re: Re: Re:6 In practice it already is the default
Most cases do not make it to court …..
Upon receipt of a take down request, the material in question is presumed to be infringing and it is therefore taken down in accordance with safe harbor provisions. The requestor does not need to prove anything.
Re: Re: Re:7 In practice it already is the default
You’re trying to analogize the presumptions in an infringement trial with the notice and takedown regime in the DMCA. The two aren’t really analogous, and were not talking about the DMCA in this thread.
Re: Re: Re:8 In practice it already is the default
“You’re trying to analogize the presumptions in an infringement trial with the notice and takedown regime in the DMCA.”
– No, I’m saying that most cases never get that far and therefore there is no presumed innocence – you are guilty.
“and were not talking about the DMCA in this thread.”
– Oh, I guess fair use has nothing to do with DMCA take downs and such …
Re: Re: Re:9 In practice it already is the default
It’s really hard to chat with you since you have so many things confused. I’ll just leave it at that.
Re: Re: Re:10 In practice it already is the default
Yes, when someone disagrees it is because they are confused.
Re: Re: Re:9 In practice it already is the default
– Oh, I guess fair use has nothing to do with DMCA take downs and such …
You’re right about that. It seems that seldom is fair use considered in DMCA takedowns, though by law it is required to be.
Re: Re: Re:6 In practice it already is the default
>> The presumption is that the alleged infringer did not infringe. Once the plaintiff shows that infringement did in fact occur, then the burden shifts to the defendant to raise their defenses, such as fair use.
>> I’m not trying to twist anything. Sorry if I’m confusing you.
I’ll say it four times [that’s the way this comment turned out and I’ll leave it like that].
No, you can’t have it both ways. If free speech is valued as a Constitutional right, then showing infringement — ie, showing that free speech occurred where some degree of copying was done and having the judge make the decision — is not good enough. The criticism is against the law’s interpretation by judges where they are bypassing a jury to rule on a vague criteria based on items of fact.
The horse before the cart. You (Anon C) want to show copying and the “fair use” standard is enough to call infringement as a matter of law. The point of this article is to say that instead it should be a jury to decide this and only after the plaintiff has argued sufficiently well (with the burden of proof) that the copying was not fair use. The standard written into the law is very vague. The result being that one individual and not a large jury of peers is deciding these free speech cases.
The problem presented is that we have recently put free speech in the back burner despite this being an Amendment to a Constitution that had prior only indirectly suggested some degree of exclusivity (implemented today as monopoly control for even longer than a lifetime where very likely progress is not being promoted). The Catcher in the Rye sequel example is apparently just one of many very bad decisions having been made without a jury.
And for the last time, the burden of proof for these free speech cases cannot change from the plaintiff to the defendant after the judge bypasses the jury to make the final determination about copyright infringement not having given the jury the chance to rule on free speech.
Re: Re: Re:7 In practice it already is the default
BTW, I am not a lawyer and have not studied this very much at all. After reading some links on shifting burden of proof, I think maybe the argument in the article is that the burden of proof simply should be higher and not based on such a vague set of rules so that the judge can effectively limit free speech rather easily and “significantly”.
I did find http://law.jrank.org/pages/18346/Burden-Proof-Criminal-Civil.html and http://en.wikipedia.org/wiki/Legal_burden_of_proof
Re: Re: Re:3 In practice it already is the default
To use my analogy of murder… We already presume that the defendant did not in fact kill the victim, i.e., that they’re innocent.
Should we also presume that if they did in fact kill the victim, then it was self defense?
I don’t think so.
That’s what presuming the infringement was fair use would equate to.
Re: Re: Re:4 In practice it already is the default
I think the problem is over how readily we determine that the defendant did in fact commit the deed.
Re: Re: Re:5 In practice it already is the default
I don’t agree. I think it’s rather easy to show that one of the author’s exclusive rights was infringed. Whether such infringement was fair use is the more difficult analysis.
Re: Re: Re:6 In practice it already is the default
You are demonstrating that you disagree that free speech is more important that copyright.
That’s your opinion.
This article is suggesting that placing copyright above free speech is a mistake and appears to be the current path the courts have taken.
That’s the only issue here. I’m not sure what you think is a logical problem.
Re: Re: Re:4 In practice it already is the default
“Should we also presume that if they did in fact kill the victim, then it was self defense?”
Hoo boy the murder analogy isn’t at all pejorative is it? If you keep pushing it and linking everything anyone says back to it *someone* might actually buy it eventually.
First, with murder there is an actual real dead body involved, with copyright even if some “infrigement” seems to have occurred (and given that everything is copied to SOME extent that ought to be tougher to prove than it is), it is hard to show any kind of damage. There IS no “dead body”.
Second, a large amount of forensic examination, investigation and burden of proof has gone into a muder trial before the defendant gets anywhere near the stand. In copyright cases the standard often seems to be “because I say so and I have this piece of paper so there”.
Third, to have a murder trial, the judge has to be satisfied that there is a reasonable case to answer, that there is clear evidence linking the actual physical dead body to the defendant and then *a jury get to decide* whether it’s true or whether there are mitigating circumstances. See? Not the judge.. the jury.
Personally I don’t trust juries, but at least an aggregate of dumb people deciding is likely to be less wrong than 1 dumb person.
If free speech is a right and you americans went to all the trouble of actually writing it down and everything then there should be a significant burden of proof of actual harm to the copyright holder before ANY action (removal of content, trials, fines, settlements etc) actually occurs. Or don’t you believe your own Constitution?
Now stop with the tenuous analogy already and either debate the actual points or push of there’s a good chap.
Re: Re: Re:5 In practice it already is the default
Yes, murder and infringement are different. They even have different names. 🙂
That doesn’t mean that PROCEDURALLY the affirmative defenses of self-defense and fair use are not analogous. They are.
Re: Re: Re:6 In practice it already is the default
“That doesn’t mean that PROCEDURALLY the” [snip] “are not analogous. They are.”
And PROCEDURALLY walking on the moon is analagous to walking down the street. That doesn’t mean I can use one as a reasonable example of the other unless I ignore all the wide and myriad differences of reality and focus on the one, almost incidental, similarity I am specifically interested in. Is this your point?
Re: Re: Re:7 In practice it already is the default
OK, then, it what way are they different that negates my point? Affirmative defenses are analogous procedurally, that’s why I was analogizing them.
I think you’re being really silly about this. But what’s new?
Re: Re: Re:8 In practice it already is the default
Ah. So procedure is all then? I’ll take that as a yes.
Re: Re: Re:9 In practice it already is the default
Huh? I made an analogy about self-defense and fair use being affirmative defenses. The scope of the analogy was rather narrow. Not sure why all the pea-brains are getting worked up about it.
Re: Re: Re:10 In practice it already is the default
“Not sure why all the pea-brains are getting worked up about it.”
Let’s see if I can remember the quote that illustrates your point.
“An old man sat in his garden every day looking down it. At the end of the garden a board was missing from the fence. Every day a donkey passed by the opening. First the nose would appear, then the eyes, ears, back and finally the hindquarters and tail. One day the old man leapt to his feet the light of revelation on his face ‘It’s so simple!’, he cried, ‘The nose causes the tail!'”
I’ve probably mis-remembered that a bit, but the point is that if you focus on a tiny bit of the picture rather than the wider picture and root causes then you are incrementally likely to produce erronious results.
That in itself is bad, but to see someone do so deliberately and in such a dis-ingenuous way as you appear to be doing is, to stray into your own vastly over dramatic method of characterisation, litle short of criminal.
If you want to convince me of your view, convince me. Use evidence, reasoned argument, fresh analogies if you must. Much though I am largely against copyright in it’s current form, on this particular issue I am not convinced of the argument either way.
I may not like it, but there probably needs to be *some* legal system to regulate the usage of created works, fair use or not, so if you think you’re right and that more burden should be on the defendant than the complainent, *convince me*. But if you are *actually* interested in trying to change my mind, start with something a little more concrete than a perceived similarity of process and procedure. I’m not interested in your donkey’s nose thank you very much.
And please stop likening it to something it’s not… or at least go the whole hog and compare it to the Nuremburg trials. I’m sure you can come up with *some* way it’s similar to that.
Re: Re: Re:11 In practice it already is the default
I don’t care if I convince you of anything.
I’m sharing my opinion that fair use developed over the years as an affirmative defense, and I think that this is a good balance between the burdens on the plaintiff and the defendant.
Most people here give no consideration to the plaintiff. I, on the other hand, do.
Re: Re: Re:2 In practice it already is the default
An anon wrote, “Once the plaintiff has shown that the defendant infringed, i.e., that they in fact did violate one of the plaintiff’s exclusive rights, then the burden shifts to the defendant to raise their defenses, fair use being one available defense.”
The fair use clause states, “…the fair use of a copyrighted work… is not an infringement of copyright.” Therefore, in order to prove that infringement occurred, you must prove that the use of the work was not fair use.
I believe what you meant to say was that the defendant copied, not that the defendant infringed. (At least, that is what you ought to have said.)
Re: Re: Re:3 In practice it already is the default
The procedure is not as you may currently believe.
A rights holder always hold the initial burden of proof to present evidence that a defendant has infringed one or more of the exclusive rights accorded under copyright law to a rights holder.
Assuming this burden is met, the defendant can either present evidence that no infringement has occurred, or can in essence admit infringement by interposing the affirmative defense of fair use. I say affirmative defense because if it is not raised it is deemed waived and the defendant is now in a world of hurt.
A fair use defense is then analyzed on the basis of whatever evidence relevant to the defense is presented by the rights holder and the defendant.
There are times when the evidence presented by both sides do not conflict, it which case there is no need to submit the matter to a jury that serves the role in our legal system of being triers of fact, i.e., which version is more credible than the other as determined by a standard known as “Preponderance of the Evidence”. Undisputed facts are taken as a given, and if all relevant facts are undisputed the Judge will invariably decide me matter himself/herself.
Now, so may say, “What about damages”? Who gets to decide? The Judge? The jury?. Typically the answer is the jury, as was the case in the Tenenbaum case were all the facts were already decided pre-trial, and all that remained was “How much does Joel owe?” In his case the amount owed was relatively large, whereupon the judge jumped in and decided it was too high and ordered what it known as “remittitur”, a process where the rights holder is told “Either accept it or we are going to once again retry the case”. Here the rights holder said no in essence saying that the judge was wrong to order “remittitur”, the judge accordingly issued a decision making her order final so that the matter could move along to an appellate court…where it now resides.
The Federal Rules of Civil Procedure (how pre-trial, trial, and post-trial matters are to be handled) can be quite extensive and detailed, but they are crafted in a way to ensure that a contested matter proceeds in an orderly manner that over time because of long experience have come to be recognized as the most efficient and fair way by which to handle such matters.
Contrary to what some here may believe, the process associated with the interposition of a fair use defense finds it beginnings in a Supreme Court case decided in 1841. Since then it has been modified by courts to add additional considerations as the need for same has been identified, and when the Copyright Act of 1976 was written it included the fair use defense that recites the factors associated with the defense that were developed by the judiciary over about 130+ years of handling copyright litigation. Importantly, however, while the fair use provision specifically directs courts to consider four (4) factors, the legislation also makes clear that the courts are free to consider other factors that they deem relevant. The use of additional factors is not at all uncommon, and in the Tenebaum case at lest five (5) additional factors were considered by the court.
Re: Re: Re:4 In practice it already is the default
True they must put something forth to start a case. My only potential problem is that the standards for burden of proof should be more empirical than a note scribbled on a cocktail napkin supported by 10,000 legal motions. (Hint: It’s the 10,000 legal motions that really count.)
Re: Re: Re:4 In practice it already is the default
Now, so may say, “What about damages”? Who gets to decide? The Judge? The jury?. Typically the answer is the jury, as was the case in the Tenenbaum case were all the facts were already decided pre-trial, and all that remained was “How much does Joel owe?” In his case the amount owed was relatively large, whereupon the judge jumped in and decided it was too high and ordered what it known as “remittitur”, a process where the rights holder is told “Either accept it or we are going to once again retry the case”. Here the rights holder said no in essence saying that the judge was wrong to order “remittitur”, the judge accordingly issued a decision making her order final so that the matter could move along to an appellate court…where it now resides.
I think the remittitur was in the Thomas-Rasset case, not the Tenenbaum case. The judge in Tenenbaum lowered the damages on constitutional grounds.
The defense in Thomas-Rasset is now asking the judge to follow the ruling in Tenenbaum and likewise reduce the damages on constitutional grounds rather than remittitur: http://copyrightsandcampaigns.blogspot.com/2010/10/judge-in-thomas-rasset-case-may-scuttle.html
Re: Re: Re:5 In practice it already is the default
After a while these cases all seem to run together.
You are correct…it was the JRT case where the judge ordered remittitur. Mea culpa.
The same was also ordered in the Harper case.
As for JT in Boston, remittitur would have been a waste of time since the defendant is of the mindset that perhaps even $0 is damages is too much.
Re: Re: Re:6 In practice it already is the default
As for JT in Boston, remittitur would have been a waste of time since the defendant is of the mindset that perhaps even $0 is damages is too much.
LOL! No kidding.
Speaking of Kiwi Camara’s cases, did you see the opposition memo in the Maverick v. Harper “innocent infringer” case?
They rip Camara a new one for “inventing” a circuit split in his cert. petition: http://www.scribd.com/doc/39440193/Plaintiffs-Opposition-to-petition-for-certiorari-in-Maverick-Recordings-v-Whitney-Harper
There is no circuit split. LOL! I will be utterly shocked if the Court grants cert. in that case.
Re: Re: Re:7 In practice it already is the default
Re Harper, I have read both the cert petition and the opposition. Frankly, I view the petition as merely a means to an end. As things now stand in the case the plaitiff is stymied in being able to argue the constitutionality of statutory damages. The district court did not buy it given the pleadings, and the appeals court agreed. She needs a reversal and remand back to the trial court so that she get another bite at the “apple” of unconstitutionality.
BTW, one of the first rules in appellate practice is that if a circuit split does not exist then invent one.
I am still waiting for Sony’s brief regarding Judge Gertner’s decision in Sony v. Tenenbaum. I has filed a notice of appeal, but I do not believe a brief has as yet been filed with the circuit court.
Re: Re: Re:8 In practice it already is the default
BTW, one of the first rules in appellate practice is that if a circuit split does not exist then invent one.
They don’t teach that one in law school. 🙂
I am still waiting for Sony’s brief regarding Judge Gertner’s decision in Sony v. Tenenbaum.
Tenenbaum is just starting to get interesting, that’s for sure.
Re: Re: Re:8 In practice it already is the default
BTW, one of the first rules in appellate practice is that if a circuit split does not exist then invent one.
They don’t teach that one in law school. 🙂
I am still waiting for Sony’s brief regarding Judge Gertner’s decision in Sony v. Tenenbaum.
Tenenbaum is just starting to get interesting, that’s for sure.
Re: Re: Re:3 In practice it already is the default
An anon wrote, “Once the plaintiff has shown that the defendant infringed, i.e., that they in fact did violate one of the plaintiff’s exclusive rights, then the burden shifts to the defendant to raise their defenses, fair use being one available defense.” The fair use clause states, “…the fair use of a copyrighted work… is not an infringement of copyright.” Therefore, in order to prove that infringement occurred, you must prove that the use of the work was not fair use. I believe what you meant to say was that the defendant copied, not that the defendant infringed. (At least, that is what you ought to have said.)
Interesting idea, but that’s not how an affirmative defense works. By raising the affirmative defense of fair use, the defendant is admitting that they infringed on one of the plaintiff’s exclusive rights.
It’s like if you’re beating me up and I punch you back in self defense. Technically, I’ve battered you, but I’m not liable for the battery since it was self defense and it was justified.
Fair use means that, yes, the defendant copied the plaintiff’s work, but it’s not infringement because it’s fair use. It is infringement in one technical sense, but it’s not in the sense that it’s justified.
Re: Re: Re:4 In practice it already is the default
Fair use means that, yes, the defendant copied the plaintiff’s work, but it’s not infringement because it’s fair use. It is infringement in one technical sense, but it’s not in the sense that it’s justified.
If it’s fair use, then it’s not infringement. Period. It’s not that it’s “justified infringement,” it’s that none of the plaintiff’s rights were violated in the first place. If the speech really is fair use, then the plaintiff never had the right to prevent it in any case.
Now, it may be the case that unauthorized copying occurred. But unauthorized copying is not, itself, illegal. (There is nothing illegal about plagiarism, for example.) It is only illegal in the specific case of copyright infringement.
This is why the comparison with self defense falls down. The comparison would only work if “self defense” meant that nobody died in the first place.
That’s why the burden of proof, logically, should fall on the plaintiffs to prove both that unauthorized copying occurred, and that it was fair use. The defendant should be able to raise a defense against both, separately or simultaneously.
That it is not, is really a shame, and I think a product of the “ownership culture” we live in today. There’s no reason that fair use has to be an affirmative defense; it’s that way solely because of case law. Perhaps in the future this could be corrected.
Re: Re: Re:5 In practice it already is the default
This is why the comparison with self defense falls down. The comparison would only work if “self defense” meant that nobody died in the first place.
I think the analogy is spot on. Self defense means that the defendant killed somebody, but it’s not murder or homicide. It was a justified killing. Fair use means that the defendant copied the plaintiff’s work, but it’s not infringement. It was justified copying.
You’re right that fair use doesn’t have to be an affirmative defense. It’s just developed as such over the years. Perhaps that will change in the future.
Re: Re: Re:6 In practice it already is the default
I think the analogy is spot on. Self defense means that the defendant killed somebody, but it’s not murder or homicide. It was a justified killing. Fair use means that the defendant copied the plaintiff’s work, but it’s not infringement.
No, because in the case of self defense, someone still dies; someone’s life is taken away. In the case of fair use, nobody’s rights have been infringed upon. Nothing has been taken away, not even theoretically.
It was justified copying.
There is nothing illegal, or wrong, with copying. It is a fundamental human activity, and does not need to be justified.
This is especially apparent in the case of copyright infringement. Copyright infringement, by definition, is unauthorized copying of an expression. So let’s rephrase your quote more accurately:
“It was justified expression.”
Free expression is a natural right. What needs to be justified is the need to take that right away. This is why fair use trumps infringement: if it’s fair use, it’s free speech, and free speech (unlike copyright) is a human right.
That’s why it should fall on the plaintiff to prove, not only that unauthorized copying occurred, but that the copying was so detrimental to society that it trumps the right to free expression.
Re: Re: Re:7 In practice it already is the default
“There is nothing illegal, or wrong, with copying. It is a fundamental human activity, and does not need to be justified.”
“Free expression is a natural right. What needs to be justified is the need to take that right away. This is why fair use trumps infringement: if it’s fair use, it’s free speech, and free speech (unlike copyright) is a human right.”
Exactly, this is exactly how the founding fathers felt (as has been quoted from them many times on techdirt) and this is exactly why they put “to promote the progress” in the constitution. The promotion of progress (of the sciences and the arts) is what justifies taking away our natural rights. If progress isn’t being promoted then our rights shouldn’t be restricted. Unfortunately, today, big corporations have perverted the purpose of copy”right” into something designed only to serve their own agenda and they have manipulated the laws to that unfortunate end.
Re: Re: Re:6 In practice it already is the default
I don’t think it is, if I murder someone in the same fashion as another murder can I be accused of that other crime?
Derivative works why do they include such things in the law?
More murder is a definitive act you end the life of someone, there is no returning from the dead, copying on the other hand has no such definitive impact on anyone, not the copied not the copier now how you can take the procedures of one and apply to another without taking that into context is beyond me. Infringing someone else given “rights” is a question that needs context to be analyzed is not like murder that it is much easier to ascertain with current technology. Boundaries in copyright law are just murky at best with infinite and no I’m not exaggerating, there are infinite ways to define copyright or we wouldn’t be having this conversation and almost none of them are provable one way or the other so people must decide based on their bias and past experience, you can’t compare murder trial procedures which have well defined boundaries not only in reality but inside society with “copying” something, if copying anything was prohibit than you may have a point but that is not the case and I doubt any society would allow that to happen, the consequences of such an act would be severe to say the least.
We as a society pride ourselves about free speech and its importance to society which benefits from it, now some people want to put copyright above that. Is that wise?
Why copyright should be above free speech and what the consequences would be?
Defend that if you can. I doubt you can.
Re: Re: Re:7 In practice it already is the default
Why copyright should be above free speech and what the consequences would be? Defend that if you can. I doubt you can.
Copyright and free speech coexist peacefully. As the Supreme Court has said, “[t]he Framers intended copyright to be the engine of free expression.”
Re: Re: Re:8 In practice it already is the default
Ah, so that must be how it’s actually working, right?
Re: Re: Re:9 In practice it already is the default
I doubt you even understand the quote.
Re: Re: Re:10 In practice it already is the default
OK, I’ll bite. Would you like to explain it?
Re: Re: Re:11 In practice it already is the default
Copyright is the engine of free expression in that it gives economic incentive for creation and distribution of works. It allows authors to get financial support from the market independent of government patronage. By encouraging authors, the law reinforces the social value of their works, and it protects the dissemination of knowledge.
That’s what the Court was referring to, but that’s only part of the picture.
Copyright does so at a cost, since copyright burdens free speech and it blocks certain channels of disseminating knowledge.
The question is then, do the benefits of copyright outweigh the detriments? If not, what should be changed?
I don’t know what the answers are, and I’m highly suspect of anyone who claims they do. I think people see that I disagree with those who claim that there’s too much copyright, and then they assume I think there isn’t. I don’t. I think there are good arguments for either side.
I think most people (like Mike) start with their conclusion on one side of the debate, and then they look for people with arguments that reinforce that conclusion. That’s confirmation bias. I prefer to stay in the middle.
I for one agree with the Court that, in general, copyright is the engine of free expression. For example, some movies are just too big to make without the economic incentives that copyright has to offer. I seriously doubt that “Titanic” would have been made without copyright protection. I don’t see a group of volunteers pulling that off. And I don’t want to rely on the government to pay for such things.
Re: Re: Re:12 In practice it already is the default
I seriously doubt that “Titanic” would have been made without copyright protection. I don’t see a group of volunteers pulling that off.
You stumbled into a false dichotomy. “No copyright” does not imply “volunteer labor only”, or that no money will be made.
And I don’t want to rely on the government to pay for such things.
There’s another one, the assumption that copyright and government are the only two ways for content (or certain kinds of content) to get produced.
Re: Re: Re:13 In practice it already is the default
You stumbled into a false dichotomy. “No copyright” does not imply “volunteer labor only”, or that no money will be made.
I knew that you’d say nothing about the heart of my post and that you’d jump on my example.
I did not stumble into a false dichotomy. My point was that I don’t think “Titanic” would have been made without copyright, and I don’t think it would have been made by volunteers. I did not say there were no other possibilities. Nice try, but stick to what I said.
There’s another one, the assumption that copyright and government are the only two ways for content (or certain kinds of content) to get produced.
Nope. I never said that copyright or the government are the ONLY two ways. Again, you are putting words in my mouth.
Can you comment as to the substance of what I DID say?
Re: Re: Re:14 In practice it already is the default
I didn’t think anything else needed clarification. You made your other points just fine, though I don’t agree with all of them. If you insist I comment on every point, I’ll consider it.
As for what I did point out, I’ll let others decide whether the fact you didn’t actually use the words “there are no other possibilities” is meaningful. I believe the implications of what you wrote are quite obvious.
Re: Re: Re:12 In practice it already is the default
Now we get away from the realms of analogy into actual opinion. Perhaps you could expand on your opinion a bit?
“It allows authors to get financial support from the market independent of government patronage.”
Do you consider it the only viable method? If not, what other methods of funding do you consider viable and why are they better/worse than the demonstrably negative side effects of copyright as in current usage?
“By encouraging authors, the law reinforces the social value of their works, and it protects the dissemination of knowledge.”
By “protects” I read that to mean “limits” given that it encourages an artificial scarcity of the protected item. Do you agree?
“I seriously doubt that “Titanic” would have been made without copyright protection.”
How do you consider copyright specifically helped in this case? Equal high-budget “blockbusters” seem currently to be readily available and unprotected by copyright e.g. Avatar perhaps. Copyright law, despite downloading a copy being a clear infrigement, seems to do little if anything to stop anyone who *wants* to from getting it for free and yet it enjoyed HUGE box office. Could you expand what you mean?
And while you’re at it, what do YOU think the quote means then?
Re: Re: Re:13 In practice it already is the default
Now we get away from the realms of analogy into actual opinion. Perhaps you could expand on your opinion a bit?
Yes, those are my opinions. What else would they be?
Do you consider it the only viable method? If not, what other methods of funding do you consider viable and why are they better/worse than the demonstrably negative side effects of copyright as in current usage?
I do not think it’s the only viable way to support works. There are lots of ways to do this, as I’m sure you already know. And I don’t pretend to know which is best, nor do I believe anyone who claims to know. That’s my point.
By “protects” I read that to mean “limits” given that it encourages an artificial scarcity of the protected item. Do you agree?
No, it protects it by incentivizing its creation and dissemination, which is what I said. The scarcity is the knowledge, and copyright helps spread that knowledge.
How do you consider copyright specifically helped in this case? Equal high-budget “blockbusters” seem currently to be readily available and unprotected by copyright e.g. Avatar perhaps. Copyright law, despite downloading a copy being a clear infrigement, seems to do little if anything to stop anyone who *wants* to from getting it for free and yet it enjoyed HUGE box office. Could you expand what you mean?
Copyright helped by giving financial incentives to the people who put forth a bunch of their own money to create the film. But for these incentives, I suspect that those people would not have forked over their own dough. I can’t say for sure since we’re talking hypothetically.
Is “Avatar” not copyrighted? If so, that’s news to me. I’ll take your word for it though.
And while you’re at it, what do YOU think the quote means then?
I already answered this above, but here it is again:
“Copyright is the engine of free expression in that it gives economic incentive for creation and distribution of works. It allows authors to get financial support from the market independent of government patronage. By encouraging authors, the law reinforces the social value of their works, and it protects the dissemination of knowledge.”
Re: Re: Re:14 In practice it already is the default
But for these incentives, I suspect that those people would not have forked over their own dough.
So, you’re saying that Hollywood producers are too ignorant to know that their films will be widely downloaded? That seems unlikely.
Whether happy about it or not, producers know that anyone can download a copy if they really want to. Yet they still forked over their own dough.
Re: Re: Re:14 In practice it already is the default
Taking someone’s word re Avatar not being copyrighted would be a mistake. 20th Century Fox and others have secured several copyright registrations associated with the movie.
Source: US Copyright Office records
Re: Re: Re:15 In practice it already is the default
I figured it was copyrighted. It’s hard to imagine it not being copyrighted, you know? Thanks.
Re: Re: Re:14 In practice it already is the default
“Yes, those are my opinions. What else would they be?”
Well up to that point mostly bluster, innuendo, and tennuous analogy, hence my noting of the change.
“I do not think it’s the only viable way to support works. There are lots of ways to do this, as I’m sure you already know. And I don’t pretend to know which is best, nor do I believe anyone who claims to know. That’s my point.”
I don’t claim to know, in fact I just said I’m undecided on this one. You on the other hand have stated a definitive opinion that the current method works just fine. Compared to what? If you think the current method works you must therefore have an opinion on how it is better than other possible methods. I was interested in hearing.
“No, it protects it by incentivizing its creation and dissemination, which is what I said. The scarcity is the knowledge, and copyright helps spread that knowledge.”
OK I can see an intellectual argument that copyright incentivises *creation* to some degree, though IMO it’s limited to a few specific cases at best. I fail to see how it incentivises distribution though. Experience suggests that non-copyrighted material spreads faster and that often copyrighted material spreads faster by “infringing” means than by legitimate distribution channels. How, then does it incentivise distribution more than not having copyright?
“Copyright helped by giving financial incentives to the people who put forth a bunch of their own money to create the film. But for these incentives, I suspect that those people would not have forked over their own dough. I can’t say for sure since we’re talking hypothetically.”
Those people ‘forked over their own dough’ in the expectation of getting more back than they put in. My point was that the fact that anyone who chose could download Avatar in an infinging manner and yet (often the same) people still paid to see it in cinemas in record numbers and made those people their money back. There *could* have been no copyright, the film coudl have been given away to anyone who asked by download and it would *still* have made money. How did the copyright help?
“Is “Avatar” not copyrighted? If so, that’s news to me. I’ll take your word for it though.”
Hence my statement “despite downloading a copy [of Avatar] being clear infrigement…”
I am suggesting that perhaps copyright didn’t help much, not that it was not copyrighted and I think you knew that.
Re: Re: Re:12 In practice it already is the default
I seriously doubt that “Titanic” would have been made without copyright protection.
The present economic reality is proof that copyright (as it stands) isn’t necessary to fund blockbuster media.
Digital file sharing is ubiquitous. I won’t say that everyone pirates; but those who want to pirate do so, with minimal effort. In a very real sense, copyright isn’t relevant right now.
Yet the MPAA’s clients made more money in 2009 than any other year in their entire history. And “Avatar” still got produced.
Also, we should not forget that Hollywood itself was founded by pirates, who went to California to escape the MPPC. Which was more successful, the pirates (Paramount, Universal, Fox)? Or the MPCC members (Biograph, Vitagraph, Essanay, Selig, Lubin, Kalem)?
And I don’t want to rely on the government to pay for such things.
The obvious rebuttal is that if you rely on copyright, then you are relying on the government. You’re relying on a government-granted monopoly.
You’re presenting a false dichotomy: Either we allow a monopoly, or we rely on direct subsidies from the government. But most markets function better without either. It’s not only a false dichotomy, it’s a dichotomy between two situations that are very rare in the global marketplace.
Now, I’m not going to say that copyright should be abolished (though I’m sure others will). But it’s absolutely not justified on economic grounds.
Re: Re: Re:13 In practice it already is the default
Again, I am not saying that there’s either copyright or there’s government patronage. I’m only saying that those are two ways to incentivize out of many, but they are two of the “biggies.”
Re: Re: Re:14 In practice it already is the default
I’m only saying that those are two ways to incentivize out of many
…while still not admitting that films like Avatar, and indeed Hollywood itself, were created without having either as an incentive.
Re: Re: Re:15 In practice it already is the default
Uh…Avatar protected under several copyrights formally registered with the US Copyright Office.
Re: Re: Re:12 In practice it already is the default
Copyright is the engine of free expression in that it gives economic incentive for creation and distribution of works.
That’s the theory. Now present a single shred of evidence to support it. We’ll wait.
I don’t know what the answers are, and I’m highly suspect of anyone who claims they do.
Ah, so because you are ignorant, everyone else must be too, and thus we stick with your faith-based solution, rather than what the evidence actually suggests? Please.
I think most people (like Mike) start with their conclusion on one side of the debate, and then they look for people with arguments that reinforce that conclusion. That’s confirmation bias. I prefer to stay in the middle.
Heh. Yes, that must be why I, like others (such as Bill Patry) started with the assumption that copyright was definitely good, and have only shifted in our views over time as we saw the actual evidence. If I had started from this position, you might have a point, but you don’t.
And you may prefer to “stay in the middle,” but I prefer to be right. Your “middle” (which appears suspiciously extreme pro-copyright) is wrong.
I for one agree with the Court that, in general, copyright is the engine of free expression.
You agree based on faith, not evidence. Because there is none.
For example, some movies are just too big to make without the economic incentives that copyright has to offer
Faith based claim with no support. There are plenty of other economic incentives, outside of copyright.
I seriously doubt that “Titanic” would have been made without copyright protection.
Faith based claim.
I don’t see a group of volunteers pulling that off. And I don’t want to rely on the government to pay for such things.
As if those are the only two options outside of copyright? Ha! Someone has not been paying attention.
Marcus Loews pointed out that he was in the business of selling seats, not movies. You should look into that.
Re: Re: Re:13 In practice it already is the default
More pointless dribble by Mike. Can’t comment with substance. So sad.
Re: Re: Re:14 In practice it already is the default
Says the pointless dribbler. Ironic.
Re: Re: Re:14 In practice it already is the default
More pointless dribble by Mike. Can’t comment with substance. So sad.
Average_joe, I’ve spent a dozen years backing up my points with substance — including research, data, studies and examples big, medium and small. Just because some kid at a third rate law school can’t figure out how to use a search engine doesn’t mean my position has no substance. Give it up. Your childish foot stomping makes you look even more foolish.
The fact that you just showed up on this website a few months ago, and sit there all pouty like demanding I rehash all of the research because you’re too stupid or too lazy isn’t exactly compelling. Considering, on top of that, your weird and semi-disgusting compulsion to lie about what I’ve said, why would I ever sit here and do your work for you, when you’d clear then just quote me out of context.
Grow up.
Re: Re: Re:15 In practice it already is the default
Average_joe, I’ve spent a dozen years backing up my points with substance — including research, data, studies and examples big, medium and small. Just because some kid at a third rate law school can’t figure out how to use a search engine doesn’t mean my position has no substance. Give it up. Your childish foot stomping makes you look even more foolish.
The fact that you just showed up on this website a few months ago, and sit there all pouty like demanding I rehash all of the research because you’re too stupid or too lazy isn’t exactly compelling. Considering, on top of that, your weird and semi-disgusting compulsion to lie about what I’ve said, why would I ever sit here and do your work for you, when you’d clear then just quote me out of context.
Grow up.
Oh, OK, you’ve got the evidence. I’m so convinced. And obviously whatever evidence you have ends the debate. Right.
If we were in court I’d move to dismiss and I’d ask for sanctions. I’d win both motions.
Re: Re: Re:15 In practice it already is the default
I will extend the benefit of the doubt and assume that mentioning an AC by “name” was an oversight made in the heat of argument.
I do believe that calling someone a “kid at a third rate law school” was inappropriate. In fairness though, I believe the same is true of responses to your comments containing terms such as “stupid” and “f*** (including variants).
Re: Re: Re:16 In practice it already is the default
I will extend the benefit of the doubt and assume that mentioning an AC by “name” was an oversight made in the heat of argument.
I do believe that calling someone a “kid at a third rate law school” was inappropriate. In fairness though, I believe the same is true of responses to your comments containing terms such as “stupid” and “f*** (including variants).
You’re right. I shouldn’t stoop so low as to call people names. I’ll try to refrain from doing that again.
Re: Re: Re:17 In practice it already is the default
While I know it is difficult at times to not lose one’s temper, it is a habit that needs to be cultivated in practicing law (though there are times I feel like beating senseless some opposing counsel who haven’t a clue what they are talking about, and even worse do not have a clue that they do not have a clue).
Re: Re: Re:18 In practice it already is the default
While I know it is difficult at times to not lose one’s temper, it is a habit that needs to be cultivated in practicing law (though there are times I feel like beating senseless some opposing counsel who haven’t a clue what they are talking about, and even worse do not have a clue that they do not have a clue).
I never let my temper get the best of me in the real world. In the anonymous world of the anti-copyright blogosphere, I can’t say I use the same restraint. Mike and I have a way of getting under each other’s skins. I enjoy the repartee.
Re: Re: Re:13 In practice it already is the default
That’s the theory. Now present a single shred of evidence to support it. We’ll wait.
Yeah, Mike, I know that’s the theory. I was explaining the theory. Pay attention.
And, really, Mike? You can’t think of one single instance where copyright provided incentive for the creation and dissemination of a work? God, you must be stupider than I thought. And that’s saying A LOT.
Ah, so because you are ignorant, everyone else must be too, and thus we stick with your faith-based solution, rather than what the evidence actually suggests? Please.
No, Mike. Again you miss the point. I don’t think anyone has the answer, nor could they. Only stupid fucks like you think the answer is clear.
Heh. Yes, that must be why I, like others (such as Bill Patry) started with the assumption that copyright was definitely good, and have only shifted in our views over time as we saw the actual evidence. If I had started from this position, you might have a point, but you don’t.
And you may prefer to “stay in the middle,” but I prefer to be right. Your “middle” (which appears suspiciously extreme pro-copyright) is wrong.
I know you can find people who back your position. Give me any position with respect to copyright and I can find well-respected people who will back that position. What does that tell you? Apparently not much. You think the people who back your position are right, and those that disagree are wrong. That makes you the poster child of confirmation bias.
And of course I appear to be extremely pro-copyright to you, Mike. You’re too fucking stupid to understand my point of view.
You agree based on faith, not evidence. Because there is none.
Yes, Mike. It’s called an opinion. Funny how every opinion that differs from yours is labeled as “faith based.” God, you’re fucking stupid.
Faith based claim with no support. There are plenty of other economic incentives, outside of copyright.
Yes, Mike, there are other incentives. I never said those were the only ones, and in fact, I’ve already explained this is this very thread. Pay attention.
Faith based claim.
Yes, Mike. It’s an opinion. How could my belief that “Titanic” would not have been made but for copyright be anything but an opinion?
Why don’t you show me an example of movie that cost hundreds of millions of dollars to make that didn’t involve copyright. Got any? I doubt it. I don’t think there are any. That gives weight to my opinion.
As if those are the only two options outside of copyright? Ha! Someone has not been paying attention.
Marcus Loews pointed out that he was in the business of selling seats, not movies. You should look into that.
Once again, Mike, I have already explained elsewhere in this thread that I did not say those were the exclusive ways to incentivize works. I said they are two “biggies” though. Pay attention.
You just don’t impress me, Mike. Not one bit.
Re: Re: Re:14 In practice it already is the default
Yeah, Mike, I know that’s the theory. I was explaining the theory. Pay attention.
Yes, in my world, theory is backed up with evidence. I’ve presented dozens of studies that have supported my positions. Where’s one from you? One.
And, really, Mike? You can’t think of one single instance where copyright provided incentive for the creation and dissemination of a work? God, you must be stupider than I thought. And that’s saying A LOT.
Didn’t I respond to this same LIE this very morning? I have NEVER said that I cannot think of a case where copyright acts as incentive. I said exactly the opposite. Why do you keep repeating this lie? I debunked it last week and I debunked it this morning and yet you repeat it? What is wrong with you?
No, Mike. Again you miss the point. I don’t think anyone has the answer, nor could they. Only stupid fucks like you think the answer is clear.
And, when you have no substance resort to vulgar insults. Very, very convincing.
If you don’t think anyone has answers on what works, then why bother at all? There is evidence, but apparently you prefer to ignore all the evidence and guide yourself entirely on theory. How bizarre.
I know you can find people who back your position. Give me any position with respect to copyright and I can find well-respected people who will back that position. What does that tell you? Apparently not much. You think the people who back your position are right, and those that disagree are wrong. That makes you the poster child of confirmation bias.
No, Joe, I don’t think that those who back my position are right. In fact, I’ve argued with many who back my position. I don’t take a guess. I look at the evidence, and I see what it suggests. Then I look at more evidence and I see what it suggests. I don’t say “this is theory, so let’s just see what I like.” That’s you.
And of course I appear to be extremely pro-copyright to you, Mike. You’re too fucking stupid to understand my point of view.
You make me laugh. I love the fact that when you can’t understand something simple it must be because I’m too stupid.
Yes, Mike, there are other incentives. I never said those were the only ones, and in fact, I’ve already explained this is this very thread. Pay attention.
Bullshit. You made a statement that Titanic wouldn’t have been made without copyright and your *ONLY* support for that was to name two dumb business models (and one you got wrong, since, as others pointed out, it DID get gov’t support).
Yes, Mike. It’s called an opinion. Funny how every opinion that differs from yours is labeled as “faith based.” God, you’re fucking stupid.
Joe, your insults reflect solely on you. Anyone can read this thread and see your ability to discuss stuff logically, and your insults only reflect on you.
Anyway, an opinion should be based on facts. Mine is based on research, evidence and data. Yours is based on “a theory” and a desire to be “in the middle.”
And, no there are plenty of “opinions” that differ from mine that are evidence-based. Yours, however, is not. I recognize it’s tough to hear someone see through your veils of deceit, but hey, get used to it. The world is a big place. It’s time for Joe to grow up.
Yes, Mike. It’s an opinion. How could my belief that “Titanic” would not have been made but for copyright be anything but an opinion?
You presented it as fact. Weaseling out after everyone called you on it doesn’t change things. People can see what you wrote.
Why don’t you show me an example of movie that cost hundreds of millions of dollars to make that didn’t involve copyright. Got any? I doubt it. I don’t think there are any. That gives weight to my opinion.
My goodness, you’ve never met a logical fallacy you couldn’t embrace, have you? If the gov’t gives you a gov’t granted monopoly automatically, of course people are going to take it. That hardly means that copyright is necessary.
And, who cares how much the movie costs? By your very reasoning, I can state: point me to the movie that cost $100 billion dollars that used copyright? You can’t? Copyright’s a failure! Get it? The cost is meaningless.
Once again, Mike, I have already explained elsewhere in this thread that I did not say those were the exclusive ways to incentivize works. I said they are two “biggies” though. Pay attention.
But they’re not two biggies. They’re two small bad models.
You just don’t impress me, Mike. Not one bit.
Thank goodness for that.
Re: Re: Re:15 In practice it already is the default
Yes, in my world, theory is backed up with evidence. I’ve presented dozens of studies that have supported my positions. Where’s one from you? One.
And yet for every economist who thinks it’s one way there’s invariably another who thinks the opposite. It’s voodoo. And when did I ever claim to have studies? My position is that studies exist to back up whatever claim you like. That makes them silly, like you.
Didn’t I respond to this same LIE this very morning? I have NEVER said that I cannot think of a case where copyright acts as incentive. I said exactly the opposite. Why do you keep repeating this lie? I debunked it last week and I debunked it this morning and yet you repeat it? What is wrong with you?
Let’s recap.
Me: Copyright is the engine of free expression in that it gives economic incentive for creation and distribution of works.
You: That’s the theory. Now present a single shred of evidence to support it. We’ll wait.
Me: Yeah, Mike, I know that’s the theory. I was explaining the theory. Pay attention. And, really, Mike? You can’t think of one single instance where copyright provided incentive for the creation and dissemination of a work? God, you must be stupider than I thought. And that’s saying A LOT.
See where you said there was not “a single shred of evidence to support” the theory? And now you’re saying that you never said you “have NEVER said that I cannot think of a case where copyright acts as incentive”?
Well, which is it? Is there not a single of evidence, or can you think of a case? You’re contradicting yourself.
And, when you have no substance resort to vulgar insults. Very, very convincing.
If you don’t think anyone has answers on what works, then why bother at all? There is evidence, but apparently you prefer to ignore all the evidence and guide yourself entirely on theory. How bizarre.
It’s only an insult if it’s not true. Since it’s true, it’s just me stating facts. And Mike, there is evidence behind positions that are mutually exclusive. Voodoo.
No, Joe, I don’t think that those who back my position are right. In fact, I’ve argued with many who back my position. I don’t take a guess. I look at the evidence, and I see what it suggests. Then I look at more evidence and I see what it suggests. I don’t say “this is theory, so let’s just see what I like.” That’s you.
Again with this magical evidence. You can keep claiming you have it, or you can show it. Tall hat, no cattle.
You make me laugh. I love the fact that when you can’t understand something simple it must be because I’m too stupid.
You’re the one who doesn’t understand me, Mike. It’s because you’re stupid.
Bullshit. You made a statement that Titanic wouldn’t have been made without copyright and your *ONLY* support for that was to name two dumb business models (and one you got wrong, since, as others pointed out, it DID get gov’t support).
I said: “I seriously doubt that “Titanic” would have been made without copyright protection.”
“Seriously doubt” does not mean what you seem to think it means. And if those business models were so “dumb,” why did the makers of “Titanic” use them? That movie seems like a success to me. I can’t imagine that movie being made with your stupid business models. OMG! I’m laughing so hard, my eyes are watering! LOL!
Joe, your insults reflect solely on you. Anyone can read this thread and see your ability to discuss stuff logically, and your insults only reflect on you.
Anyway, an opinion should be based on facts. Mine is based on research, evidence and data. Yours is based on “a theory” and a desire to be “in the middle.”
And, no there are plenty of “opinions” that differ from mine that are evidence-based. Yours, however, is not. I recognize it’s tough to hear someone see through your veils of deceit, but hey, get used to it. The world is a big place. It’s time for Joe to grow up.
“I’ve got great alternative business models! I’m Mike!” LOL! LOL!
“Make your movie that costs hundreds of millions of dollars using my awesome alternative business models!” LOL! LOL!
“And I’ve got evidence, magical evidence! I keep it locked away, but one day I might show it to you!” LOL! LOL!
OMG! I just spit out my coffee!
You presented it as fact. Weaseling out after everyone called you on it doesn’t change things. People can see what you wrote.
Again, I said: “I seriously doubt that “Titanic” would have been made without copyright protection.”
I stand by that opinion. You do understand that it being an opinion and all, it can’t be proved or disproved, right?
Can you give us any reason to think it would have been made otherwise?
But they’re not two biggies. They’re two small bad models.
So bad that people with hundreds of millions of dollars to spend on movies used them, made a great movie, and did quite well. Yeah, that’s so stupid! LOL! LOL!
Thank goodness for that.
Hours of entertainment, Mike. Thanks. Is your blog meant to be comedy? It’s funnier than “The Onion.”
Re: Re: Re:14 In practice it already is the default
Why don’t you show me an example of movie that cost hundreds of millions of dollars to make that didn’t involve copyright.
By your own logic, everyone should adopt India’s IP laws, since Bollywood releases about twice as many films per year as Hollywood – many of which cost the equivalent of hundreds of millions of dollars to make.
And yet for every economist who thinks it’s one way there’s invariably another who thinks the opposite. It’s voodoo.
You might want to choose your words better, because the phrase “voodoo economics” has a pretty embarrassing history.
“Seriously doubt” does not mean what you seem to think it means. […] You do understand that it being an opinion and all, it can’t be proved or disproved, right?
Yet when others (including me) actually present reasons to assuage your doubt, you ignore them. Opinions can’t be proved or disproved, but not all opinions are equal, and opinions based on evidence are always better than opinions based on faith. Yours is the latter.
OMG! I’m laughing so hard, my eyes are watering! LOL!
And here, we see the reason you post here. You’re not interested in learning or debate. You just have a vindictive resentment towards Mike. You’re like a kid who hates Michael Jordan, and responds by throwing a basketball in the air and shouting “I won!”
“And I’ve got evidence, magical evidence! I keep it locked away, but one day I might show it to you!”
Techdirt presents evidence all the time. For examples, do a search for “fashion” or “restaurants” on the site – and that’s just off the top of my head. Far from “keep[ing] it locked away,” this site is closer to a public resource. Don’t blame Mike if you’re too bullheaded to exploit it.
Re: Re: Re:13 In practice it already is the default
Faith based claim.
This sounds to me like a faith based rebuttal.
Re: Re: Re:14 In practice it already is the default
This sounds to me like a faith based rebuttal.
LOL! Nice one! 🙂
Re: Re: Re:14 In practice it already is the default
This sounds to me like a faith based rebuttal.
Funny stuff. If only it had some basis in reality. Except that it doesn’t. My points are backed up by evidence, data, research and multiple studies presented here. Each time we present one, rather than actually critique it, you dismiss it as “not convincing to me.”
Funny stuff how deeply those who abuse the system for profit bury their head in the sand. If it didn’t impact the rest of our economy and culture, I’d be laughing.
Re: Re: Re:15 In practice it already is the default
Funny stuff. If only it had some basis in reality. Except that it doesn’t. My points are backed up by evidence, data, research and multiple studies presented here. Each time we present one, rather than actually critique it, you dismiss it as “not convincing to me.”
Funny stuff how deeply those who abuse the system for profit bury their head in the sand. If it didn’t impact the rest of our economy and culture, I’d be laughing.
“I’ve got great, great evidence that ends the debate once and for all! Can you see it? Um, no, I left it at home. But believe me! I have it! And it’s AWESOME!”
LOL!
Re: Re: Re:15 In practice it already is the default
A comment was made that a movie with a huge budget would likely not be made absent some measure of legal recourse available to investors. Investors are a conservative lot and are generally disinclined to make investments on faith alone in circustances such as this. It was dimissed out of hand, with no mention of one or more examples of movies made without consideration being given to copyright law.
Thus it did seem appropriate to note that this was likewise a faith based rebuttal.
Re: Re: Re:16 In practice it already is the default
Read up on the history of Hollywood and the movie industry, sometime. It might prove very enlightening.
Re: Re: Re:17 In practice it already is the default
The movie makers gravitated to California for any number of reasons beyond trying to escape the grasp of Mr. Edison.
One reason that I have always found interesting is that during the silent film era one of the premier locations for filming was Jacksonville, FL. Between the heat, humidity, mosquitos and religious intolerance for the industry, the decision to move made much sense.
Re: Re: Re:2 In practice it already is the default
oh FFS!
If they infringed then that can be determined only AFTER fair use is considered. The consideration comes FIRST! GAAH! I have not the words… must eat brains!
Re: Re: Re:2 In practice it already is the default
“Once the plaintiff has shown that the defendant infringed, i.e., that they in fact did violate one of the plaintiff’s exclusive rights, then the burden shifts to the defendant to raise their defenses, fair use being one available defense.”
This is the fundamental mis-understanding. If the use was fair then the plaintiff hasn’t in fact shown that the defendant has infringed.
There are two ways to look at this:
1. Any copying is infringement and fair use is an exception.
2. Copying is not infringement, all use is considered fair until proven otherwise.
I think the whole point is that most people believe option 2 is the better option. Under that type of system summary judgement would rarely be possible, where as, under the current system summary judgement happens in many if not most copyright cases.
Re: Re: Re:3 In practice it already is the default
If it’s fair use, then you could say the defendant copied, but that the copying is not infringing. Just like if the defendant kills someone. You could say the defendant killed, but it’s not murder if it was self-defense.
Now, if the defendant is at the point of the proceedings where they are putting forth their fair use defense, that necessarily means that the plaintiff has already shown that the defendant copied the plaintiff’s work. That copying will ultimately be called infringement if the defendant is unsuccessful in proving that it was fair use. Whether it’s just copying or whether it’s infringement depends on what the defendant is able to prove at that point. The plaintiff has already rested their case-in-chief.
I understand that the whole point of this article was that copying should be presumptively fair use. It’s an interesting idea. I do think it shifts too much of the burden to the plaintiff. The presumption is already that the defendant is not an infringer, so that protects the defendant.
Re: Re: Re:4 In practice it already is the default
Now, if the defendant is at the point of the proceedings where they are putting forth their fair use defense, that necessarily means that the plaintiff has already shown that the defendant copied the plaintiff’s work.
Yes, but they have not proved infringement. In order for it to be infringement, it also cannot be fair use. At that point in the proceedings, “Actus reus” has not been established.
The presumption is already that the defendant is not an infringer, so that protects the defendant.
The presumption is that the defendant is not a copier. Once he is shown to have copied, he is presumed guilty – even though most copying is not unlawful.
What you are admitting, even if you can’t see it, is that the defendant is presumed guilty.
Re: Re: Re:5 In practice it already is the default
Nope. If the defendant is putting on their fair use defense, then the plaintiff has already closed their case-in-chief and the actus reus has been proved. If not, the defendant could simply move for a directed verdict, and once granted, they would never have to present their defense.
Don’t argue procedure with me unless you actually know something about it, please.
And no, Karl, the defendant walks into court presumed to not be an infringer. After the plaintiff makes their case-in-chief, the burden shifts to the defendant to raise their defenses, like fair use.
And yes, once the plaintiff has successfully made their case-in-chief, the defendant’s copying is considered to be infringing unless the defendant can prove otherwise. That’s the point of this article.
This article is saying that the plaintiff should not only have to show that the defendant copied, but they should also have to prove that that copying was not fair use. I think that’s analogous to saying that the prosecutor in a murder trial should have to show that the defendant not only killed the victim, but also that the killing was not self-defense.
I think that’s too much of a burden on the plaintiff or the prosecutor.
If anything, in a murder trial where the stakes for the defendant are potentially life in prison or capital punishment, there is more of a reason to give the plaintiff this extra burden. But we don’t do it there. Nor do I think we should do it here.
Re: Re: Re:6 In practice it already is the default
If the defendant is putting on their fair use defense, then the plaintiff has already closed their case-in-chief and the actus reus has been proved.
If the defense even has the ability to successfully raise a fair use defense, then actus reus has not been proved.
If it’s fair use, no infringement occurred in the first place – so you’re placing the burden of proof on the defendant to disprove a crime was even committed at all.
Now, if we were arguing whether innocent infringement should be an affirmative defense, then you’d be right. But we’re not arguing about who should prove the infringement was innocent; we’re arguing about who should prove that infringement happened at all.
I think that’s analogous to saying that the prosecutor in a murder trial should have to show that the defendant not only killed the victim, but also that the killing was not self-defense.
A better analogy: A person goes missing. The prosecution charges the defendant with murder, even though there’s no physical evidence of death. And the burden then shifts onto the defendant to prove that the missing person wasn’t murdered.
I think that’s too much of a burden on the plaintiff or the prosecutor.
Then you think that copyright infringement is worse than infringing on free speech. That’s your opinion. It’s not mine.
Re: Re: In practice it already is the default
Wow, infringement is like murder … that’s quite a stretch now isn’t it?
I imagine there are those who would agree with capital punishment for copyright infringers, however I doubt the present laws allow it.
Re: Re: Re: In practice it already is the default
Procedurally speaking, yes, fair use and self defense are similar in that they operate as affirmative defenses.
You simply don’t understand what my point was.
Re: Re: Re:2 In practice it already is the default
Oh, I think I understand quite clearly what you are up to.
Re: Re: Re:3 In practice it already is the default
If so, that would probably be a first. Your comments consistently show that you’re confused about all of this.
Re: Re: Re:4 In practice it already is the default
In that murder and copyright infringement are alike . . . .
Re: Re: Re:2 In practice it already is the default
I think the problem is over how high to set the standard. A vague set of rules always being decided by a judge and frequently leaning towards the copyright holder is a way to short-change free speech which should instead dominate over copyright.
I suppose people could appeal to the SCOTUS on the Constitutionality of the fair use determination procedure.
Re: In practice it already is the default
Clearly, one man’s free speech via fair use is another man’s theft.
Except that infringement isn’t really theft, in that the person infringed upon still has the stuff, which in the case of theft, he or she doesn’t. We shouldn’t do lawerly debate and use sloppy definitions.
But back to the point. One man’s fair use is clearly other folk’s infringement. Hence all the lawsuits and threats of lawsuits, and the growing, lobbyist-induced crazy harshness of copyright law. Masnick appears to want us to deal with the contradiction between free speech via fair use, and the legal system’s apparent bias in favor of copyright protection, limiting free speech.
And given all the so-called “copyfraud” floating around (I’ve personally seen the US Constition’s Bill of Rights with a (C) on it), this becomes an even bigger issue.
Re: In practice it already is the default
Sure, lawyering up is expensive. Most accusations never reach a court room, do they? The offending material is taken down after receipt of a threat letter. This occurs without regard to fair use considerations. In some cases, the complaining party is not the copyright owner, they simply want to censor others and they do this without consequence. In many cases the censored party lacks the resources to fight and walks away. I doubt that many people think fair use will protect them from the abuse which so prevalent today.
Just Part of the Overall Trend
We seem, as a society, to be moving in the direction that holders of so-called intellectual property define what is right and wrong. Not only do they define what is right and wrong, but they also feel entitled to to take whatever disciplinary action they deem appropriate without regard to due process.
Fair use
In other words, if we really believe in the First Amendment and that fair use is supposed to protect it from over aggressive use of copyright law to censor, then fair use should be assumed, and the legal burden for proving that a use is not fair should fall on the copyright holder.
Sure, but the people writing and lobbying for the laws in this area don’t believe that.
Defensive presentation to the commons
I would love to see the public take the initiave to construct recipe’s of defenses/arguments to be used for various scenarios. The public should also be able to easily “fork” a given defense to modify it to slightly different conditions. Included in this would be the arguments to use on appeals should the decision not go for you at various stages. Also, all along there should be links where you are told of defenses and actions you must or might want to take.
I know this sounds complex and is, but you figure with the flexibility of building things online as a group that already exists (eg, through wikis, though extra support should eventually exist to allow forking of pages easily and linking them back and categorizing/searching the forks more easily), that it’s only a matter of time.
Does techdirt want to host an experiment where we begin to build a defense for various scenarios? Non-lawyers can do much of the work if they have a clue, but a lawyer at the end would make sure everything is legit in actually applying it to the given trial. We list all of the disclaimers of course.
[Yeah, it does sound like a huge task, but with a few motivated legal minds (maybe ex-lawyers and/or retired ones) wanting to contribute this to the commons (ie, getting it started or guiding it as an editor), I think eventually in time we would end up with lots of good stuff usable for many scenarios to lower the leverage Big Money has in forcing settlements (since costs would go down for anyone taking up the defense and the fear of the unknown by a potential defendant would not be so great).]
Re: Defensive presentation to the commons
A great start can be made on a wiki. Eventually, we would have to comb through this http://www.law.cornell.edu/rules/frcp/ as we build an expert system (it’s software but all the logic can be described in text first), perhaps something like tax software that asks you questions as you enter information.
For a suit, we’d have to enter actions/events as they occur and then be presented with options. Logically, there would likely be modules with focus (on types of lawsuits and based on several geographical modules).
This could be very useful to a lawyer defending someone and without worry of job displacement since the software would need many gaps filled in (fast judgment calls and creative on the spot replies and arguments.. not to mention picking what would be believed to be the best “choose-your-own-adventure” style path forward at every fork).
And it can all start with an online wiki managed by determined folks, I think.
Re: Defensive presentation to the commons
One of the key goals would be to eventually have a public expert system of some sort since there might already exist numerous proprietary ones that cost a bundle.
[For example, doctors might today have access to similar systems that patients would not but should be able to access for themselves. If patients had this access easily, they could make much better decisions, leaving the things they couldn’t manage or did not want to risk managing to the human experts.]
In the meantime, I guess this would serve the function of another how-to.
And of course, the public could also focus on research and putting arguments together. That would be a primary goal and one that is simpler. Eg, http://en.swpat.org/wiki/Software_patents_wiki:_home_page and more specifically this page http://en.swpat.org/wiki/Why_abolish_software_patents offers a source where many people can put together all sorts of arguments.
Groklaw (for a few tech cases, mostly related to the SCO lawsuits over Linux) has helped fill in some of this in that volunteers have sat in court and provided recounts of what went on. These were presented and people discussed. Over time this accumulated information can be reprocesses in a number of ways, eg, to help build how-tos as well as eventually a quasi-expert system.
Anyway, these are ideas. All sorts of websites that cover law or cases move towards this in some way. I just wish dealing with suits today was much easier and cheaper and possibly predictable.
Copyright and free speech now !!
Yes, its quite common, especially from Mike and Co, that the term FAIR USE is as simplistic as if it is ‘fair’ or not.
“Fair use” is a legal term, and that legal term can easily be confused with the common meaning of ‘fair’ is.
But there is no defense in a court that could or would EVER be put up that its just not fair!!!.
If you did that, apart from being disbarded, you would be laughed out of court, and have it explained to you what the term “fair use” means in a legal context.
And WHY ?? are you trying to drag freedom of speech down with you ? I would have thought your right to speak out agaist wrongs is something you hold highly.
Its NOT something that should be dragged down to an excuse to copy the works and efforts of others, that is NOT the intention of your founding fathers. To allow and promote being able to download damed movies or songs, or use something that does not belong to you !.
No not at all, free speech is something to be held in higher regard than that. And it, nor the constitution should be considered.
And second guessing and call ‘wrong’ the appointed people is your free speech right. But that free speech right only is in regard to YOUR speech.
Plus free speech is not universal, its something mainly in the US, and the US is not the center of the universe.
I mean your country is in major trouble right now and your complaining about free speech rights and your ability to download the songs you like.
Some people would just prefer a job, and downloading free music does not create jobs, and certain does not create the jobs a stable and secure market provides.
Jobs = taxes = your country progressing.
jobs also create more jobs, it create the need for goods for houses, for music and to give people money so they can afford to buy tickets to concerts or shows.
and money to buy into Mikes very own paywall, or crystall ball, so you too can Make some money.
Its how it all works, but downloading content that you do not pay for and do not intend to pay for against the wishes of the creator of that works is theft, not free speech..
Re: Copyright and free speech now !!
Yes, protect the holders of copyright at all costs. I hate those dancing babies too.
Re: Copyright and free speech now !!
Yes, its quite common, especially from Mike and Co, that the term FAIR USE is as simplistic as if it is ‘fair’ or not.
Actually, simplistic reductionism is more common from pro-copyright trolls such as yourself. See e.g. an “exclusive right” being the same as a “human right.”
But that free speech right only is in regard to YOUR speech.
That is not anywhere in the First Amendment.
Plus free speech is not universal,
Neither is copyright.
Some people would just prefer a job, and downloading free music does not create jobs
Downloading free music does not take away jobs, either. What takes away jobs are legacy industries that can’t adapt to the market (which is never “stable and secure”).
But we’re talking about fair use, not jobs. Fair use is necessary for free speech, so if your business infringes on fair use, your business is unconstitutional. Doesn’t matter what “some people” would prefer, or how many jobs are lost.
Of course, “downloading free music” is not fair use, so it’s completely irrelevant to this discussion.
Who benefits from the copyright laws?
It’s interesting how the intent of the Founding Fathers and the Congress seems swept aside or forgotten in this debate. Even the courts have observed that the first beneficiaries of copyright laws are the public, not the copyright holders.
That is what culture is all about and that is what is expressed here when “fair use” is discussed. Think of all the orphaned works that we will never see because of copyrights that have been abandoned and the message is clear. The major copyright holding corporations prefer the scarcity of works that prop up their profits and business models rather than to give fair use any sense of being a right at all.
From outside the ring
That procedurally fair use and self defence are handled the same is probably true. But that’s not the same as saying it is right, fair or just – which in part is the thrust of the article.
I agree with Karl that infringement is not proven until you have shown that copying took place AND that it is not fair use. Anything else is legitimate copying and the law needs to protect that. A burden of proof to prove fair use will lead to self censorship, stifling creativity and damaging free speech.