Re: Re: Re: Re: Get in bed with an egomaniac? Pass.
For someone arguing nuance, you seem to have missed quite a bit yourself. Let's start with:
"You seem to claim that the song's use in a commercial is irrelevant". He did not. What he, and others here have claimed, is that use in commerce does not automatically cause it to fail the four factor test--your tone and general argument seems to lean very strongly in this direction. I think your own perspective is clouding your reading of other's arguments.
Your entire rebuttal boils down to: "you want this to be fair use, but you're wrong." And I can find no factual basis or appeal to authority to support your belief that this is not fair use, other than your focus on the commercial aspects, which has been widely argued here is not ENOUGH to cause the factor test to fail.
I'm pretty sure I got it through a scholastic book order when I was in middle school... not sure if I'm remembering correctly. Maybe I'd like it better today. It is still sitting with all of my other Tolkien and Tolkien-related books.
You keep focusing on profits and that is completely blocking your understanding of the issue. Copyright was never intended and does not exist to block profits--it exists as a temporary right to exclude and comes with exceptions such as fair use.
If you read the fair use clause and the fair use tests, you would understand that commercial benefit is not a definitive criteria against fair use.
Especially when the use was also transformative. In this case, while the tune is the same/similar, many words were changed and the context of the ad places the use squarely in the parody camp.
Well, that's not an accurate characterization of what happened, and in any case, your explanation of defamation isn't correct. There are many tests that must be passed for defamation, including: whether the entity allegedly defamed was actually damaged, whether the entity is a public figure, whether the individual had specific knowledge (not first-hand or second-hand), whether or not the statements made are opinion versus fact, etc.
You can be a third-party, with specific knowledge if you observed the results of the transaction. The statements here also almost certainly would be ruled as opinion.
Unfortunately the issue is whether or not the defendants can afford to litigate even if they have a high likelihood of prevailing or recovering some/all costs.
I'm curious how this holds up under basic commerce contract law. If the sale was never completed, I'm not certain how they can uphold any "terms of sale".
Even so, I'm certain this would not survive the other tests of a valid contract in commerce such as the typical consideration of equal understanding and equivalent value... seems like incurring a liability of thousands of dollars simply from the purchase of small-dollar items would not fit that expectation.
Yeah, which makes my point above all the more apt. If you anticipate outcomes that far, far exceed the weight of your mistake, you're going to hide from it (foolishly given the ability for information distribution).
Or worse, we'll start getting outcomes where administrators won't step in to break up fights because they can't win--any actions on their part can be used against them.
I coach soccer in our community and we get advised repeatedly: don't touch the kids, *ever*. If they are injured, call 911 or let a parent help them. And, god forbid, don't give them a high-five or a "good job" slap on the shoulder. This really makes me sick--it should not be this way.
I agree with everything you've said, Mike. What I struggle with, however is how to characterize why we're at this point.
I firmly believe this is a problem of our own cultural making. Teachers/administrators (or government employees, or police officers, or...) that make mistakes are not met with reasonable understanding that “things happen”, but an overwhelming wave of blame that usually results in someone getting fired. Yes, I realize that there are things that cannot fall into the "things happen" category, but we need to figure out how to separate them.
If this principal knew after he was overzealous in his use of force that he could acknowledge he made a mistake, the school would stand behind him and pay for reasonable medical expenses, he would have to learn from his mistake, and everyone could move on, I bet this kind of reaction would not occur. But more likely what happens is, lawsuits happen, the school disavows him and claims it was a rogue employee. This is a situation in which which people will abandon all kinds of ethical behavior to avoid.
If you (I certainly do) long for different behavior from these establishments, we need to ask whether in today’s culture, we are willing to allow mistakes and rehabilitation rather than punishment through firings and the legal system.
Re: Re: Re: Re: I think associating this with "the mind of a cop" is a copout
This can be boiled down to "nature or nurture". I believe there is a compelling argument (e.g., yours) to be made for both influences, which is why I believe its both. So, perhaps I've been unclear--I'm not arguing organizations have no influence on member thinking, just that it isn't the sole cause or even predominant cause.
We know this because there are many, many members of these organizations that do NOT think in this manner. Keep in mind that what we see and read about over and over again suffer from selection bias--we focus on and remember most strongly the members that behave or speak ignorantly, not the members that execute in a manner consistent with our citizen expectations.
Re: Re: I think associating this with "the mind of a cop" is a copout
I'm not sure I'm arguing that it is an exception--just that it isn't ONLY an institutional mindset. If we want to change it, I think we need to understand and hold accountable a) how the organization may (or may not) contribute to ignorant and dangerous thinking, and b) what causes individuals to think/behave in such an ignorant manner despite organizational and social influence.
It is absolutely true that organizations can magnify or discourage certain ways of thinking--but to me that is an after-effect, not the root cause... ergo, I may blame the organization for encouraging or condoning certain thinking/behavior, but I want the individual(s) accountable for their own thinking.
I think associating this with "the mind of a cop" is a copout
I always think it is lazy when we dismiss foolishness/ignorance by attributing it (either directly or indirectly) with the organization (social or political) rather than the individual.
I think we should be talking about how irresponsible it is to be a cop and think this way, not how being a cop makes you think this way. Yes, I know, there is such a thing as "groupthink" and yes, there is a correlation between certain mindsets/personalities and law enforcement. But don't give the individual an out by blaming their organization. We all have agency and we don't lose that once we associate with an organization.
Re: The NSA is systematically weakening US computer security
An interesting analysis. To continue the analogy about high-ground, in warfare a particular high-ground is scarce--it cannot be held by two competing parties. It seems less clear whether that particular constraint applies to vulnerabilities and compromised systems.
Re: Re: Re: Re: Re: Following this to its logical conclusion
I'm pretty confused with your post. Let me see if I can summarize--if the driver interacts with something passively, its ok, but if the driver interacts with something actively (thus taking their eyes off the road) that is bad.
And therefore, if anything (like texting) can only be interacted with actively, it should induce liability?
If that is the argument, I'm sorry, but I think that's way too convoluted. It seems to me, that in any of the examples you cite the onus is still on the driver to DECIDE how to process whatever distraction is interrupting their driving. The fact that some things can be passive or active, or only active, or only passive is irrelevant to liability. DH said it above--it is the driver's specific action/decision that introduces the risk into the behavior, not the presentation (regardless of source) of a distraction.
Re: Re: Re: Following this to its logical conclusion
But you've missed the point--the issue isn't "texting", the issue is whether you present a distraction that takes the driver's attention away from the road. All of the examples I gave, COULD do that, but it all depends on the driver's response to my potential distraction.
Which brings me back to, why o why shouldn't the liability fall entirely on the driver who can choose to engage or ignore the distraction?