The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It

from the chilling-effects dept

I recently came across yet another story of copyfraud, but due to the nature of our litigious society and the way in which certain companies over-aggressively defend their rights, I need to prevent many of the details from being explained here, and have had to anonymize nearly everything. A family friend recently published a very interesting research paper on a popular topic. To demonstrate a certain point in the paper, he found a perfect image from a book that was published over 50 years ago. Again, to avoid identifying the situation, I cannot provide any more info, other than to say that this the image represented a tiny portion of a much larger work -- and that its usage without a doubt met all of the criteria of a typical fair use defense. The use was for non-profit educational purposes, it was a tiny part of a much larger work (and, in many ways, an inconsequential piece of that larger work, even if it was perfect for the point being demonstrated). The effect on the market for the original work was at worst nil, and at best positive, in that it might cause people to seek out the original work. In my review, it appears that the original work is now long out of print, and it is available only by collectors at an extremely high price. Thus, the use of the work is not for this person's financial benefit, and has absolutely no impact on the original publisher.

Even so, because we unfortunately live in a society where it's been drilled into our heads that you must get permission (even if the entire purpose of the fair use doctrine is for situations like this where no permission is needed), my friend reached out to the very, very large and well known conglomerate that holds the copyright on the original. He explained what he wanted to do and why, very clearly and concisely. The company's response was actually quite friendly, all things considered, and the person who responded appears to reject his request regretfully, noting that she is "in the unenviable position" of having to say no. The reasoning, the letter states, is that the work is protected by intellectual property laws and that the company "must be constantly vigilant and sometimes stringent in exercising control over their use."

There are significant problems with this. The whole point of fair use, again, is that these kinds of uses do not need permission. Furthermore, while trademark law does require some level of "vigilance," the same level of vigilance is not required for copyright law, and it is entirely possible to turn a blind eye to such usage and not lose the powers that copyright grants. Finally, there would be no harm at all in allowing this or even granting the guy a simple license. That would take away nothing from the company's IP rights.

But the bigger issue to me is actually the chilling effects that this situation has had. After sharing all of these details with me, I asked if he would be okay with me publishing the story with the full details. And he refused. Despite recognizing the near certainty of winning any legal dispute (as well as the fact that it is unlikely he would actually get sued), the very small risk alone is too much to bear. The idea that a massive global conglomerate might suddenly choose to sue this guy for some non-profit research he did out of personal interest -- just because of a single graphic to (humorously) illustrate a single point -- just isn't worth it. And that's the classic tale of a chilling effect of copyright law. Scaring people into not speaking up or not presenting their story.

Filed Under: chilling effect, copyfraud, education, fair use, permission


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  1. icon
    chelleliberty (profile), 26 Apr 2012 @ 10:09am

    Re: Re: A few points

    Ok, well I don't have time for this and I'm stopping feeding now; I mean, I know most of us already could see it, but, wow, this post must have killed any last scintilla of credibility you had with anyone who has the ability to follow basic reasoning.

    "Prove me wrong. Prove this is fraud."

    Well the "prove me wrong" stuff is just BS, since reasonable people can disagree. You see things as very black and white, except when you want them to be grey.

    But Mike and I and others in the thread have stated the very simple line of reasoning that just shows the definition of copyfraud and how it's possible that an absolute denial of fair-use could fit the definition as it exists. Yes, that's right, reasonable people, which I think includes almost everyone here, can see how simple the reasoning is, and that while it's certainly arguable that it does not rise to copyfraud, it's also arguable that it does.

    "Prove me wrong." Seriously, are you in third grade? Who says this? You have some serious growing up to do, regardless of how old or young you may be.

    But so, I'm not bothering to go through everything again; fortunately at this point there's enough interspersed in the thread that even those who might have been taken in by your posturing, personal attacks, and obviously huge ego can go read tons of actual reasoning both for and against whether fair use could indeed rise to the level of copyfraud, and further discussion on whether it *should*. There's definitions and premises and logic and everything.

    Mike even very succinctly covered it above but just in case someone might need more, it's definitely all there, and your non-arguments are laid bare because this isn't a verbal discussion where each argument slips away into a stream of consciousness, it's a written record of everything that has been said and it's easy enough for anyone to see how what little reasoned argument you did make doesn't stand up to the smallest bit of reason.

    See, convincing people with these methods, especially here, is going to be much harder than you apparently think: we're not a community of non-thinking credulous zombie sheep that you clearly think we are. Despite the fairly wide range of viewpoints that do disagree with Mike here, it's fairly easy for those of us with an open mind and a clear sense of reason (i.e. almost everyone) to see *your* tactics for what they are. And, you even admit to them, so there ya go.

    We disagree and argue and make progress to the point that we find out the fundamental principles that we disagree on, or to the point that we come to some sort of semi-consensus.

    You, make assertion after assertion, we build conclusions upon premises and reasoning. You make ad hominem attacks, we point them out. You consistently ignore points that are made so clearly that those you (assumedly) are trying to convince must certainly be wondering "wait, why this again when it was answered?" You don't attack premises, you deny conclusions. Fallacy upon fallacy may work in cases where there's no ongoing, recorded discussion, or in cases where people already agree with you and need nothing more than their own confirmation bias to do so. You state the same arguments many times without change even after they have been shown to have flawed reasoning and/or questionable premises, we actually answer to those things when they are pointed out to us about our arguments.

    But, see, I think this is just because you are clearly delusional. And I don't say that as an ad hominem attack, I say it because you clearly think that your *wishing* something to be true, and saying it enough times, will make it so, and damn any evidence to the contrary: if you want it, it's reality. And you are *so* delusional about it that you continue to insist upon your own *wished* reality, even against what any reasonable person would believe, that you have already totally exposed your delusion to all that wish to see, and likely to many (i.e.. those that are basically in agreement with you) who would have preferred that you at least make a pretense of wanting to actually argue the issues.

    And, you've taken it so far, I see little difference between your disconnect with reality and this fellow's:


    We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality — judiciously, as you will — we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors . . . and you, all of you, will be left to just study what we do. --unnamed WH aide for G. W. Bush (possibly later identified but not to my satisfaction so you can look it up for yourself if you want to know)


    I wouldn't be surprised if you actually think that's a very valid viewpoint since I find it clear that you think you are somehow not bound by logic and that we should all be bound by what you believe and what you say. And as evidence I offer the fact that you become more vitriolic and more angry the more often and more clearly your non-reasoning is shot down.

    Since you're so willing to tell us what's in Mike's head, I figure you won't mind me saying what I think is in yours, eh?

    See, some people, they get angry when their reasoning is refuted because they just aren't really quite sharp enough to follow everything and respond appropriately. They're not dumb, just average, just unable to keep up, logically. Since they are unable to actually come up with a response that makes sense, and they are smart enough to see that they can't, it's upsetting because they see themselves as now being a 'loser' in a battle of something. (Bad way to look at debate but I'll leave that for now.)

    And, you.... No, you totally don't fit that profile. I think you could easily have tempered your premises and argument for the time being and at least responded in a way that would let you 'save face'. But see, I don't think you work that way. Because everything indicates to me that you aren't pissed off because you can't save face, you are pissed off simply because anyone would even deigned to question something you said. What is there to save face about when none of us has any right to question whatever it is you said in the first place?

    So, amirite?

    So, hopefully this has helped tie things up for people. I'm done with the feedings as I think there's more than enough in this thread to demonstrate or at least render highly likely what I've said here, and anyone that cares to do so has it at their fingertips.

    I have already spent far too long on this issue and have put in writing everything I care to say about it and the tangential subjects that came up around it. So, have as many last words as you like.

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