"The only real "stakeholder" in copyright is the public. The private sector may be beneficiaries, but the system is supposed to benefit the public."
This is certainly how our jurisprudence (mostly) treats copyright, but it's not universal. Whereas Anglo-American copyright has its basis in positive law (which exists only when granted by the legislature), other countries find theirs in natural law. So while the basis for American copyright is the our famous Constitutional compromise (essentially, limited monopolies to benefit a greater public good), in countries where natural law is favoured, copyright is a moral right of the author alone, a right which vests regardless of whether there is a law. It is a right which the legislature only acknowledges, rather than creates.
So I agree that the user communities should be represented, but saying that "the system is supposed to benefit the public" and that the public "is the only stakeholder that matters" is a little ethnocentric when you're talking about international law. They're two different philosophies, and though you may not agree with both of them, each has equal legitimacy in the international arena.
"Furthermore, since HFA only covers mechanical licenses, and this is a new performance, not a use of a recorded song that HFA has rights over, the whole thing is completely ridiculous."
Not that it makes a difference as to the ridiculousness, but HFA doesn't license recordings, they license musical works for the purposes of recording them, so the fact that this is a new recording isn't actually germane. However, not all mechanical licenses have to go through HFA, so even if it were a copyrighted work and they didn't have an HFA license, HFA still wouldn't have standing to sue anyway.
I've always thought the VCR metaphor was completely wrong, but then I finally thought to read about the Boston Strangler, and now it occurs to me that Mr. Valenti's metaphor is actually astonishingly apt. The Boston Strangler killed 13 women between 1962 and 1964, when the population of Boston was nearly 700,000. So the VCR was to the American film producer (at least) as the Boston strangler is to the woman home alone: paranoid and certain of a horrible, messy death because of alarmist, baseless news stories, and yet in truth is, statistically at least, perfectly safe in her own home.
...you can make a decent argument that the photograph is absolutely transformative and fair use
But see the Federal Circuit's ruling in Gaylord v. United States that a postage stamp using a photograph of a copyrighted sculpture is not a fair use and infringes the sculptor's copyright. It's a terrible ruling, and completely misses the Supreme Court's rulings on the first factor, but it has set a precedent, wasn't appealed, and hasn't otherwise been challenged. Maybe this will set up a circuit split?
Once again, though, this does seem symptomatic of the general belief these days that it's possible to own "ideas," and that if you have an idea, then you can stop others from either having the same idea separately, or from actually implementing your idea.
Not that this could possibly apply to Mr. Hogan's claim, but do not patents, in fact, give you ownership of ideas, albeit very specific ones? Granted, you can't patent the general idea of "making a power cord that solves the problem of computers falling when people trip," (it wouldn't pass the non-obvious test) but I thought you could patent the ideas behind specific implementations of the general idea...
Also, I hasten to point out that ARSC is not making its statements alone: it is part of a coalition which includes the Music Library Association and the Society of American Music. See Historical Recordings Coalition for Access and Preservation.
In fact, one of the ARSC suggestions was acted on by Congress. The law only directed that a study of repealing §301(c) be undertaken by the copyright office, but that is progress nonetheless. The report, as I understand it, is expected later this year, before Marybeth Peters retires.
...The nature of the work is that it's a fanpage, designed to promote the original work and to provide commentary on it...
Your statement quoted above seems to be conflating the nature of the work (2nd factor) with the purpose of the use (1st factor, which you discuss later as well). The "nature of the work" in the second fair use factor refers to the nature of the original work, not the controversial one. The nature of the work is that it is highly creative (despite being a remake), rather than factual, and is not yet published (see Harper & Row v. Nation Enterprises 571 US 539 at 563). In this case, the second factor would probably go to the plaintiffs, except where some of the information that is used may in fact be factual.
I still think you're right in that fair use for the fan page itself is pretty much a slam dunk (though some of the fan art may not be), but they're not likely to win the second factor.
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Stakeholders
"The only real "stakeholder" in copyright is the public. The private sector may be beneficiaries, but the system is supposed to benefit the public."
This is certainly how our jurisprudence (mostly) treats copyright, but it's not universal. Whereas Anglo-American copyright has its basis in positive law (which exists only when granted by the legislature), other countries find theirs in natural law. So while the basis for American copyright is the our famous Constitutional compromise (essentially, limited monopolies to benefit a greater public good), in countries where natural law is favoured, copyright is a moral right of the author alone, a right which vests regardless of whether there is a law. It is a right which the legislature only acknowledges, rather than creates.
So I agree that the user communities should be represented, but saying that "the system is supposed to benefit the public" and that the public "is the only stakeholder that matters" is a little ethnocentric when you're talking about international law. They're two different philosophies, and though you may not agree with both of them, each has equal legitimacy in the international arena.
"Furthermore, since HFA only covers mechanical licenses, and this is a new performance, not a use of a recorded song that HFA has rights over, the whole thing is completely ridiculous."
Not that it makes a difference as to the ridiculousness, but HFA doesn't license recordings, they license musical works for the purposes of recording them, so the fact that this is a new recording isn't actually germane. However, not all mechanical licenses have to go through HFA, so even if it were a copyrighted work and they didn't have an HFA license, HFA still wouldn't have standing to sue anyway.
Valenti's metaphor
I've always thought the VCR metaphor was completely wrong, but then I finally thought to read about the Boston Strangler, and now it occurs to me that Mr. Valenti's metaphor is actually astonishingly apt. The Boston Strangler killed 13 women between 1962 and 1964, when the population of Boston was nearly 700,000. So the VCR was to the American film producer (at least) as the Boston strangler is to the woman home alone: paranoid and certain of a horrible, messy death because of alarmist, baseless news stories, and yet in truth is, statistically at least, perfectly safe in her own home.
...you can make a decent argument that the photograph is absolutely transformative and fair use
But see the Federal Circuit's ruling in Gaylord v. United States that a postage stamp using a photograph of a copyrighted sculpture is not a fair use and infringes the sculptor's copyright. It's a terrible ruling, and completely misses the Supreme Court's rulings on the first factor, but it has set a precedent, wasn't appealed, and hasn't otherwise been challenged. Maybe this will set up a circuit split?
Owning ideas
because you can't actually own "ideas,"
Once again, though, this does seem symptomatic of the general belief these days that it's possible to own "ideas," and that if you have an idea, then you can stop others from either having the same idea separately, or from actually implementing your idea.
Not that this could possibly apply to Mr. Hogan's claim, but do not patents, in fact, give you ownership of ideas, albeit very specific ones? Granted, you can't patent the general idea of "making a power cord that solves the problem of computers falling when people trip," (it wouldn't pass the non-obvious test) but I thought you could patent the ideas behind specific implementations of the general idea...
Suggestions
Also, I hasten to point out that ARSC is not making its statements alone: it is part of a coalition which includes the Music Library Association and the Society of American Music. See Historical Recordings Coalition for Access and Preservation.
In fact, one of the ARSC suggestions was acted on by Congress. The law only directed that a study of repealing §301(c) be undertaken by the copyright office, but that is progress nonetheless. The report, as I understand it, is expected later this year, before Marybeth Peters retires.
Fair use
...The nature of the work is that it's a fanpage, designed to promote the original work and to provide commentary on it... Your statement quoted above seems to be conflating the nature of the work (2nd factor) with the purpose of the use (1st factor, which you discuss later as well). The "nature of the work" in the second fair use factor refers to the nature of the original work, not the controversial one. The nature of the work is that it is highly creative (despite being a remake), rather than factual, and is not yet published (see Harper & Row v. Nation Enterprises 571 US 539 at 563). In this case, the second factor would probably go to the plaintiffs, except where some of the information that is used may in fact be factual. I still think you're right in that fair use for the fan page itself is pretty much a slam dunk (though some of the fan art may not be), but they're not likely to win the second factor.