Fox News Sues Senate Candidate For Using Clip In Commercial

from the let-me-introduce-you-to-my-friend,-fair-use dept

Fri, Sep 17th 2010 8:40am — Mike Masnick

During the Presidential campaign in 2008, we noted that CBS had sent a takedown notice for a John McCain ad that included a snippet of the CBS Evening News with Katie Couric. We noted that this seemed silly and a pretty clear case of fair use. While not much more ever happened in that case, in a similar situation, we now have Fox News and one of its hosts, Chris Wallace, suing Missouri Senate candidate Robin Carnahan, claiming copyright violations, invasion of privacy and misappropriation of likeness -- saying that the ad implies that Wallace endorses Carnahan. Fox has also sent takedown letters to YouTube for hosting the video, though others appear to have it (for the time being).

The ad itself is pretty straightforward. It's a clip of Chris Wallace asking a question to Carnahan's opponent in the race, Roy Blunt from a few years ago. It's basically Wallace saying the following:

"You just said a moment ago that you have to show that you're the party of reform but some question whether you are the man to do that. In 2002, you tried to insert language into the Homeland Security Act to help Phillip Morris tobacco [company] while you were dating that company's lobbyist. And your campaign committee's paid $485,000 to a firm linked to lobbyist Jack Abramoff. Are you the one to clean up the house?"

And then some tag line against Blunt. It never shows Blunt's response. It's difficult to see how anything about this lawsuit makes sense. First of all, the copyright claim is pretty weak. While most of the commercial is the clip, it seems like it's quite likely this would still qualify for fair use. The idea that this implies Wallace endorsed Carnahan is a huge stretch. Nothing in the ad suggests he did at all. It's a factual representation of what was said. Fox's claim that this creates financial harm doesn't make much sense. Even if (again, a huge stretch) people believe that Wallace was endorsing Carnahan, that's got nothing to do with the financial loss from the clip itself. Case law is pretty clear that the financial loss needed in a fair use analysis involves the financial loss over what the clip itself could be licensed for -- not any ancillary "costs." And, in the very same complaint, Fox makes it clear that it wouldn't license this clip even if the campaign had asked. Thus it seems to admit that the "financial loss" is nothing.

But, really, the bigger issue, is that in suing and sending takedowns over this video, all Fox has done is draw significantly more attention to the story itself and the negative impression of Blunt. If I had to guess, I'd say that Carnahan has never been so happy to be sued. It's tons of free advertising on an attack ad on her opponent.

And, of course, if the video is found to be fair use -- as I would bet it would be -- we'll have yet another example of how the DMCA's takedown process is a clear violation of free speech. Even if the video is eventually allowed back online due to a counter-notice, copyright law was being used to silence political speech in the middle of a campaign.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: chris wallace, copyright, endorsement, publicity rights, robin carnahan
Companies: fox

85 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

NAMELESS.ONE, 17 Sep 2010 @ 8:47am

this is the next evolution
make you htink these people they sue are your anti-copyright friends, when as mike shows they are far from so.

It is all meant to confuse you whom could be a real champion and i bet if you follow the money as they say , this guy will get a nice handout later on....
[ link to this | view in thread ]
ChurchHatesTucker (profile), 17 Sep 2010 @ 9:01am

Hell yes!
Every rightsholder should issue a takedown whenever any politician tries to use something. Maybe *then* they'll get it.
[ link to this | view in thread ]
jupiterkansas (profile), 17 Sep 2010 @ 9:26am

I don't watch TV so I don't see a lot of campaign ads, but I saw this one thanks to Fox News. If only they hadn't sued...
[ link to this | view in thread ]
MrWilson, 17 Sep 2010 @ 9:28am

This probably has nothing to do with the party affiliation of the candidates, right? That couldn't possibly be a factor. Fox News would sue a conservative candidate if they used Fox News footage to make their opponent look bad, right?

Oh what am I saying? This is Fox News... Never mind.
[ link to this | view in thread ]
average_joe (profile), 17 Sep 2010 @ 9:33am

Case law is pretty clear that the financial loss needed in a fair use analysis involves the financial loss over what the clip itself could be licensed for -- not any ancillary "costs." And, in the very same complaint, Fox makes it clear that it wouldn't license this clip even if the campaign had asked. Thus it seems to admit that the "financial loss" is nothing.

Sigh. It's not whether they would have licensed the work to this specific defendant that matters. Since this work is being used to raise money, and thus for financial gain, the presumption would be that it harms the copyright owner's potential market. Saying that they weren't going to license it to this specific defendant doesn't rebut the presumption. Not even close.

Of course, in your eyes anyone who tries to protect their copyrighted work is wrong, and the poor defendant on the other end is always the victim. Never mind that the defendant simply used someone else's copyrighted work without permission in order to further their political aspirations and to raise money.

It's a "pretty clear case of fair use," right? Whatever that means. I think all four factors work against finding fair use. Maybe it's not as clear as you want it to be... as you need it to be.

And of course it's that "copyright law was being used to silence political speech in the middle of a campaign." It's never "copyright law is being used to protect copyrighted works." Always with the rhetoric, rarely with the substance.

Once again Mike is against authors' rights. But hey, what's new?
[ link to this | view in thread ]
John Doe, 17 Sep 2010 @ 9:49am

Re:
You did read the first couple lines of the article where it says that Fox News sent John McCain a take down notice in 2008 right? Apparently not, so please take a minute to re-read that and then see if you still have the same question.
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 9:49am

Re:
Just like a liberal, never let the facts get in the way of a good argument.
[ link to this | view in thread ]
Dark Helmet (profile), 17 Sep 2010 @ 9:52am

Re: Re:
Er, not to mention the fact taht Chris Wallace is a registered Democrat....
[ link to this | view in thread ]
imbrucy (profile), 17 Sep 2010 @ 9:53am

Re:
I think you are correct in that this may not be a clear case of fair use. That said, it should be fair use. It is using someone's words for political commentary. Just because the person who filmed the clip doesn't like your use of the clip, you should still be allowed to use it for the purpose of political commentary. Not saying that it is, just saying that it should be.
[ link to this | view in thread ]
lavi d (profile), 17 Sep 2010 @ 9:53am

Again
And, of course, if the video is found to be fair use -- as I would bet it would be -- we'll have yet another example of how the DMCA's takedown process is a clear violation of free speech. Even if the video is eventually allowed back online due to a counter-notice, copyright law was being used to silence political speech in the middle of a campaign.

The threat (and promise) of the internet is that it gives voice to common people - sometimes on par with corporations, the entertainment industry and politicians.

This cannot be stressed enough because daily, elements in those three groups are trying hard to change this.

This (the internet) was just not supposed to happen. By the early '90's, these three groups pretty much had everything sewn up for themselves. The actual delivery of a pulpit to the masses has made a mess of their happy little world.
[ link to this | view in thread ]
Jeremy7600 (profile), 17 Sep 2010 @ 9:58am

Re:
Raise money for a campaign? Is that a competing product to what Fox is selling? Did they take potential monies away from Fox by doing so?

Please explain.

Could you also explain why you think all four factors work against finding fair use? You weren't very clear there.
[ link to this | view in thread ]
Jeremy7600 (profile), 17 Sep 2010 @ 10:01am

Re: Re:
Also, its not clear to me that was a fundraiding commercial but a smear against her opponent. I didn't see her asking for any money, just saying she endorsed the message.

Not sure if I take it the same way you do..
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 10:10am

Re: Re:
That was CBS.

Reading comprehension fail
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 10:13am

Re: Re:
Again, the fact is that this was CBS that sent a notice to McCain. And yes, Carnahan is a democrat, and yes: fox news is by far very conservative.
[ link to this | view in thread ]
MrWilson, 17 Sep 2010 @ 10:17am

Re: Re:
As the AC already pointed out, that was CBS, not Fox News. Did you want to take a minute to re-read that and then see if you still have the same response?
[ link to this | view in thread ]
Mike Masnick (profile), 17 Sep 2010 @ 10:19am

Re:
Sigh. It's not whether they would have licensed the work to this specific defendant that matters. Since this work is being used to raise money, and thus for financial gain, the presumption would be that it harms the copyright owner's potential market. Saying that they weren't going to license it to this specific defendant doesn't rebut the presumption. Not even close.

I'll note that Ben Sheffner, who almost always agrees with your views on copyright (and disagrees with mine) appears to agree with me and not you on this one:

http://copyrightsandcampaigns.blogspot.com/2010/09/fox-news-and-correspondent-sue-senate.htm l

Of course, in your eyes anyone who tries to protect their copyrighted work is wrong, and the poor defendant on the other end is always the victim. Never mind that the defendant simply used someone else's copyrighted work without permission in order to further their political aspirations and to raise money.

http://scholar.google.com/scholar_case?case=1644515519332407137&

It's a "pretty clear case of fair use," right? Whatever that means. I think all four factors work against finding fair use. Maybe it's not as clear as you want it to be... as you need it to be.

Want to bet?

And of course it's that "copyright law was being used to silence political speech in the middle of a campaign." It's never "copyright law is being used to protect copyrighted works." Always with the rhetoric, rarely with the substance.

AJ, just because you don't understand what I'm talking about, doesn't mean what I say doesn't have substance.

I find it funny that every time people here prove you wrong, you resort to screaming "rhetoric." You sound like someone who just discovered what that word means.

Once again Mike is against authors' rights. But hey, what's new?

Not at all. I'm in favor of free speech. I have nothing against authors' rights.

What I'm still trying to figure out is why you're so in favor of censorship?
[ link to this | view in thread ]
average_joe (profile), 17 Sep 2010 @ 10:21am

Re: Re: Re:
The fund raising nature of it was in the complaint:

"The Carnahan Ad has been disseminated on television and was also available for anyone in the world to view on the Defendant’s website, robincarhahan.com, where the misappropriated Graphics – including a copy of the Fox News logo – were prominently displayed as the focal point of the website’s home page. Immediately to the right of the link to the Carnahan Ad, visitors were asked to “DONATE TODAY” to Defendant. At the bottom of the page featuring the link to the Carnahan Ad, visitors were further propositioned to “BUY NOW” bumper stickers and t-shirts from the “TEAM ROBIN STORE” available online. In so doing, Defendant used the FNS Interview and Wallace’s likeness and persona with the intent to acquire commercial gain."
[ link to this | view in thread ]
MrWilson, 17 Sep 2010 @ 10:25am

Re: Re: Re:
Wallace's political affiliation is irrelevant. Fox News claims the copyright on the clip.

Wallace's responsibility to ask tough questions in the course of his job probably influenced his decision to ask the question he asked of Blunt. Fox News' political affiliation probably influenced its decision to file the lawsuit.
[ link to this | view in thread ]
Berenerd (profile), 17 Sep 2010 @ 10:27am

Re: Re: Re:
What he said...

...Also, Wallace is a democrat yes, but he isn't the one issuing the take down, Fox is. Fox is conservative through and through. have you seen the crap people post in their "news articles"? Seriously, these people blame obama for salmon swimming down stream rather than up. they compare a 6yo girl cheerleading and saying "Shake your booty" to Child porn...I mean god...my brain dies each time I try and read these things...
[ link to this | view in thread ]
RD, 17 Sep 2010 @ 10:41am

Re:
"Sigh. It's not whether they would have licensed the work to this specific defendant that matters. Since this work is being used to raise money, and thus for financial gain, the presumption would be that it harms the copyright owner's potential market. Saying that they weren't going to license it to this specific defendant doesn't rebut the presumption. Not even close.

Of course, in your eyes anyone who tries to protect their copyrighted work is wrong, and the poor defendant on the other end is always the victim. Never mind that the defendant simply used someone else's copyrighted work without permission in order to further their political aspirations and to raise money.

It's a "pretty clear case of fair use," right? Whatever that means. I think all four factors work against finding fair use. Maybe it's not as clear as you want it to be... as you need it to be."

Wow. What an absolute shill you are. You arent even hiding it now, you are so blatantly in the pockets of...whoever, but its Pro-Copyright/Big Media Rah Rah from you.

You dont even know what you are talking about, yet you make ridiculous, false claims. Fair use has FOUR factors, and financial gain is only ONE of them, and is not automatically a deal-breaker. In addition, using a clip like this is CLEARLY fair use, as it falls under commentary and criticism AND does not damage the market for the copyrighted work by FOX'S OWN ADMISSION. It's truly amazing that you cant understand this, and yet you insist on blathering on in a clearly specious way as if you, a neophyte with ZERO background on the subject, are right, and Mike (who has dealt with these issues for a DECADE and has the ear of actual legal scholars and practitioners) and numerous other people, oh and also THE LAW, are wrong. But you are right, because you can whine the most and tell a big enough lie.

I seriously hope you are not wasting your time and money going into copyright law in your college studies, because you dont have the intelligence or the perspective for it.
[ link to this | view in thread ]
Richard, 17 Sep 2010 @ 10:51am

Re: Re:
I can't help but notice how those who like to say that you always this or that.... ALWAYS say the opposite of this or that. You could be bloging about Wal-Mart's lawyers throwing dying children out onto the street for using the word Mart at a bake sale, and one of these A-hole Lawyer/lobbyists would be right there, "sigh"ing and telling everyone that you don't know what your talking about. After how many years of studying law, is it even possible that you don't have a clue? Unless you have stage 4 Alzheimer's it's rhetoric about rhetoric.
[ link to this | view in thread ]
MrWilson, 17 Sep 2010 @ 10:52am

Re: Re: Re: Re:
You seem to take the lawsuit claims at face value.

Yes, the commercial was posted on a website that also asks for donations. What politician's website doesn't ask for donations? What politician's website (that is run by tech-savvy webmasters and campaign managers) wouldn't also feature their television commercials?

Politicians ask for donations. Every page of Carnahan's website has a donation link. Does that mean that every other picture or word on her website is intended for fund-raising? Of course not. The website isn't a fund-raising website. It's a political website to further her political career. Fund-raising contributes to that goal, but it's not the only purpose of anything on the website.
[ link to this | view in thread ]
average_joe (profile), 17 Sep 2010 @ 10:52am

Re: Re:
I should have known you just lifted the story from someone else, like Sheffner.

Whether the use is commercial is not dispositive of whether it's fair use. It could be noncommercial and still not be fair use. So that doesn't mean anything. Nice try.

Free speech isn't absolute, Mike. No matter how much you want it to be. And just because I'm pointing out that it isn't absolute doesn't make me pro-censorship. I know you have to put labels like that on people to try to win people to your side, and that's just sad. I'm just stating it like it is.

And you clearly are not pro-authors' rights. Anyone who reads your blog sees evidence of that every day.
[ link to this | view in thread ]
average_joe (profile), 17 Sep 2010 @ 10:54am

Re: Re:
How is the candidate commenting on the new report itself?
[ link to this | view in thread ]
average_joe (profile), 17 Sep 2010 @ 11:01am

Re: Re: Re: Re: Re:
Good points. Although, even if the use is noncommercial that does not necessarily make it fair use.
[ link to this | view in thread ]
Modplan (profile), 17 Sep 2010 @ 12:01pm

Re: Re: Re:
Why you keep focusing on but one point out of what was said I have no idea. Commercial use was not even the most significant claim made in the article, only pointing out that some cases involved an analysis of financial harm along side others.
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 12:11pm

I'm a critic of the way the DMCA treats many issues, but saying DMCA takedown procedures "violate free speech" is silly, because there is no government actor. It's the company hosting the speech that decides to take down the material (or risk potential liability).
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 12:16pm

Re: Re:
"AJ, just because you don't understand what I'm talking about, doesn't mean what I say doesn't have substance."

And just because people disagree with you, does not mean they don't understand you. Conflating the two is one of the most annoying things (to me) about your writing.
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 12:18pm

Re: Re:
Of course, anyone who disagrees with Mr. Masnick is a shill who can't think for his/herself, right?
[ link to this | view in thread ]
Killer_Tofu (profile), 17 Sep 2010 @ 12:24pm

Re:
We refer to them as Faux News. =)
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 12:25pm

Re:
Yeah, it's not like the company is compelled by threat of legal action and liability that is backed by the force of a law passed by the government.
[ link to this | view in thread ]
Common Sense, 17 Sep 2010 @ 12:31pm

Re: Re: Re:
I think Average Joe must be Glenn Beck or someone that works for him. Crying as loud as he can for anyone who will listen to avoid the dangers in the content of this website, because of scare tactics and "rhetoric" all the while abusing such methods of coercion himself.

"Once again Mike is against authors' rights. But hey, what's new?"

"Not at all. I'm in favor of free speech. I have nothing against authors' rights."

"just because I'm pointing out that it isn't absolute doesn't make me pro-censorship. I know you have to put labels like that on people to try to win people to your side, and that's just sad. I'm just stating it like it is.

And you clearly are not pro-authors' rights."

All in the comments section of one article...not even trying to hide it.
[ link to this | view in thread ]
Common Sense, 17 Sep 2010 @ 12:36pm

Re: Re: Re:
You can disagree and demonstrate understanding, or you can disagree and not demonstrate understanding. If you do not demonstrate understanding, why would someone assume that you understand??? That's just dumb.

I've disagreed with Mike on a couple of topics, and demonstrated that I understood his points. He's never once accused me of not understanding just because I disagree.
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 12:43pm

Re: Re: Re: Re:
"You can disagree and demonstrate understanding, or you can disagree and not demonstrate understanding."

Agreed. I have yet to see an article on Techdirt that describes someone who disagrees with Masnick as someone who understands the issues well.

"If you do not demonstrate understanding, why would someone assume that you understand??? That's just dumb."

Also agreed, but the converse assumption is just as dumb, and often (it appears to me, anyway) displayed here.

"I've disagreed with Mike on a couple of topics, and demonstrated that I understood his points. He's never once accused me of not understanding just because I disagree."

I'm not saying he says it *every* time someone disagrees with him on anything, just that it's a very common rhetorical tool he uses.
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 12:49pm

Re: Re:
Not relevant to the DMCA (which does not provide for liability in this case, but a potential safe harbor).
[ link to this | view in thread ]
Dark Helmet (profile), 17 Sep 2010 @ 1:00pm

Re:
"saying DMCA takedown procedures "violate free speech" is silly, because there is no government actor"

The argument is that the DMCA in itself is the government actor. That the DMCA allows other to quell free speech is, in effect, Congress making a law which violates free speech....
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 1:04pm

Re: Re:
I don't really buy that First Amendment analysis in the first place (although it has some support), but that's beside the point.

The DMCA does not "allow" others to do this; it is just the Copyright Act that does this. All the DMCA does is provide a potential safe harbor.
[ link to this | view in thread ]
Dark Helmet (profile), 17 Sep 2010 @ 1:17pm

Re: Re: Re:
That's not all it did. It set up the whole takedown system that goes out of it's way to punish a hosting site if they don't immediately take down the content in question.

Google has said several times that over half the takedown notices it gets are from one business against a competing business. They've also said that over a third of them are not valid copyright claims.

Therefore, it's inhibiting free speech, because Google (and other sites) still has to take the content down initially to retain their safe harbor status.

How is that not infringing on free speech?
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 1:23pm

"It set up the whole takedown system that goes out of it's way to punish a hosting site if they don't immediately take down the content in question."

The take down system is the safe harbor I'm talking about. The DMCA does not "punish" people for not abiding by the takedown system. The DMCA says if you don't abide by the takedown system, standard copyright law applies.

Thus, to the extent you see potential copyright liability as a violation of free speech, it's just copyright law that's posing the risk of liability, not the DMCA.

It's like saying if you don't clean your room by 2pm, I'll violate your free speech rights. But, regardless of whether you clean your room by 2pm, I'll refrain from enforcing the first provision if you rake the leaves by 3pm.

It's not the second provision that's the potential violation of free speech rights. It's the first.
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 1:24pm

Re: Re: Re: Re:
Ugh, my post below was meant to reply to you. sorry
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 1:41pm

Re: Re: Re:
Umm, yes, that's the entire point. The DMCA provides for the loss of those safe harbor unless companies complies with the suppression of free speech, which compels them to do just that.
[ link to this | view in thread ]
Kamen (profile), 17 Sep 2010 @ 1:47pm

Re: Re:
Hey John Doe, did you read the first couple of lines because it was CBS that asked McCain to take down his ad not Fox.
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 1:51pm

Re: Re: Re: Re:
If the DMCA didn't exist, the ISPs liability for speech would be greater than it is under the DMCA. I have a hard time seeing that as the DMCA compelling the stifling of such speech.
[ link to this | view in thread ]
Dark Helmet (profile), 17 Sep 2010 @ 2:00pm

Re: Re: Re: Re: Re:
"If the DMCA didn't exist, the ISPs liability for speech would be greater than it is under the DMCA. I have a hard time seeing that as the DMCA compelling the stifling of such speech."

Sigh. Okay, I'll try to point out where I think the confusion is. You're assuming any kind of liability is in place. In the event of non-infringing speech, there's no liability over which to be concerned. A quick breakdown:

1. Person A puts up his own generated content
2. Person B, for whatever reason, puts out a DMCA takedown request despite the fact that the content does NOT infringe
3. The website, not being intimately familiar with the content or who created it, follows the DMCA and takes the content down, per the guidelines of the DMCA
4. Person A's free speech has been infringed by the process of the DMCA
5. The DMCA was enacted by Congress
6. The DMCA has violated the 1st amendment
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 2:28pm

Re: Re: Re: Re: Re: Re:
"You're assuming any kind of liability is in place."

No, I'm not. I'm only assuming the risk of liability. That risk may be very low or very high, depending on the case.

Let's address the "confusion" in your scenario.

You say the website "follows the DMCA" by taking down the content. The DMCA does not provide any penalty for failing to take down content. The DMCA only says you won't be liable if you do so, not you will be liable if you don't. In your scenario, the website's actual liability does not change whether they take down the content or not, or whether the DMCA existed in the first place or not.

I hope that clears up the "confusion"
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 2:37pm

Re: Re: Re: Re: Re: Re: Re:
Again, the mechanism that compels the website to immediately (and without any proof of infringement), take down the content is the DMCA. Losing safe harbors is the penalty. The website is compelled to immediately take down the content or risk the loss of those safe harbors.
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 2:48pm

Re: Re: Re: Re: Re: Re: Re: Re:
That's like saying I'm compelling you to work for me because if you don't I won't pay you $10/hr.

Not paying you $10/hr is not a "penalty."
[ link to this | view in thread ]
average_joe (profile), 17 Sep 2010 @ 3:14pm

Re: Re:
Could you also explain why you think all four factors work against finding fair use? You weren't very clear there.

I'll give it a shot... I wouldn't want to be one of those people who makes conclusory statements without backing them up. Ahem.

Without having all the facts I can't make a complete argument, but I'll see what I can do.

Let’s look at the four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

For the first factor, the court considers the extent to which the new work is transformative. The new work must add something new, with a further purpose or different character. Defendant’s new work adds hardly nothing new. It simply copies the original.

The court also considers whether the purpose of the new work is for profit. The crux is not whether the sole motive of the use is monetary gain but whether the defendant stands to profit from exploitation of the copyrighted material without paying the customary price. The defendant here stands to profit.

True, courts that have actually considered whether campaign advertisements are commercial in the fair use context come down on the side of noncommercial. However, monetary gain is not the sole criterion, particularly in a setting where profit is ill-measured in dollars.

The defendant profited from his use by gaining an advantage without having to pay customary licensing fees to the plaintiff. This is just like the Henley v. Devore case, and there the court found this factor weighed for the plaintiff.

(2) the nature of the copyrighted work;

The second factor reflects a recognition that creative works are closer to the core of intended copyright protection. The plaintiff’s work is expressive and at the core of copyright protection.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

The third factor asks whether the amount and substantiality of the portion used in relation to the copyrighted work as a whole are reasonable in relation to the purpose of copying.

The vast majority of the defendant's new work was just wholesale copying of plaintiff’s work. I don’t know how long the original work was, so I can’t say what portion of it was used.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Under the fourth factor, the question is whether actual market harm resulted from the defendant's use and whether unrestricted and widespread conduct of the sort engaged by the defendant would result in a substantially adverse impact on the potential market for the original or its derivatives.

The burden is on the defendant to bring forward favorable evidence that potential markets will not be harmed.

There is the argument that there is no market for licensed use of the work because the plaintiff refuses to license his works. Whether the plaintiff has actually permitted licensing is irrelevant because the copyright laws protect the potential market for derivatives.

Even an author who had disavowed any intention to publish his work during his lifetime is entitled to protection of his copyright, first, because the relevant consideration is the potential market and, second, because he has the right to change his mind.

Defendant’s use does supplant the market for derivatives of the original. Licensees and advertisers do not like to use works that are already associated with a particular product or cause.

[citations omitted]
*******************

Look, I’m sure I could come up with some much better arguments if I put more effort into it, but that’s not the point. The point is Mike's claim that this is clearly fair use is wrong. It’s not.
[ link to this | view in thread ]
average_joe (profile), 17 Sep 2010 @ 3:19pm

Re: Re: Re:
Of course, anyone who disagrees with Mr. Masnick is a shill who can't think for his/herself, right?

That's the techdirt mantra!
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 4:37pm

Re: Re: Re: Re:
Says the troll.
[ link to this | view in thread ]
Anonymous Coward, 17 Sep 2010 @ 4:39pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Oh good, a useless analogy.

If the government passed a law that sent every business $10000 a year, but demanded that those businesses suppress free speech or lose the cash, then yes, the loss of cash would be a penalty.

Your semantics dancing is really getting quite silly.
[ link to this | view in thread ]
Dark Helmet (profile), 17 Sep 2010 @ 6:23pm

Re: Re: Re: Re:
"That's the techdirt mantra!"

Are you fucking kidding me? I've tolerated your posts thus far because, while I certainly don't agree with most of them, they at least have a modicum of logic behind them and usually a great deal more with regard to being a perfectly valid viewpoint.

But if you think that everyone who disagrees with Mike is lambasted as a shill, then you're simply not paying attention. I disagree with Mike all the time, and he's never been anything but cordial with me. Nor have most of the commentors on this site.

Take your pity party elsewhere.

.....shill.
[ link to this | view in thread ]
Mike Masnick (profile), 17 Sep 2010 @ 7:43pm

Re: Re: Re:
I should have known you just lifted the story from someone else, like Sheffner.

Wow. You may be the most obnoxiously wrong person I've ever met.

I did not "lift" the story from Sheffner. I didn't see his until after I posted it. And, frankly, since I almost always disagree with Sheffner on stuff, don't you think it's bizarre that I would "copy" from him? On nearly every copyright issue we disagree.

You're so full of it. Get over yourself.

Whether the use is commercial is not dispositive of whether it's fair use. It could be noncommercial and still not be fair use. So that doesn't mean anything. Nice try.

I didn't say it was the only factor. Why must you always lie about what I say?

Free speech isn't absolute, Mike. No matter how much you want it to be. And just because I'm pointing out that it isn't absolute doesn't make me pro-censorship. I know you have to put labels like that on people to try to win people to your side, and that's just sad. I'm just stating it like it is.

You in fact said you were fine with book censorship in our last discussion. I just assumed that it was a character flaw you had.

And you clearly are not pro-authors' rights. Anyone who reads your blog sees evidence of that every day.

That's ridiculous. I spend so much time helping content creators make more money. You're insane if you think I'm against author's rights.

What I'm against is abusing the system. You, however, appear to be all for it.
[ link to this | view in thread ]
average_joe (profile), 18 Sep 2010 @ 6:04am

Re: Re: Re: Re:
Of course you're for authors' rights. You just think they should have less rights, and the ones they do have, they shouldn't exercise.

I've been reading your blog for 5 months, and I can't recall a single post of yours where you sided with a rights holder who was defending their rights.
[ link to this | view in thread ]
TDR, 18 Sep 2010 @ 6:38am

Re: Re: Re: Re: Re:
Because in today's convoluted system, AJ, the rights holders aren't necessarily the creator(s) of a work. In many cases, they're useless middlemen terrified by the public's realization that they're completely and totally obsolete.
[ link to this | view in thread ]
average_joe (profile), 18 Sep 2010 @ 6:47am

Re: Re: Re: Re: Re: Re:
So if an author willingly transfers his rights to someone else, then those rights aren't worth protecting? That doesn't seem right to me.
[ link to this | view in thread ]
The Infamous Joe (profile), 18 Sep 2010 @ 7:04am

Re: Re: Re: Re: Re: Re: Re:
If you understood the purpose of copyrights, it would seem right to you.
[ link to this | view in thread ]
The Infamous Joe (profile), 18 Sep 2010 @ 7:17am

Re:
I think the aspect you are missing is that copyright law requires a trial before the potentially infringing content is suppressed. With the DMCA, it only requires an allegation and further, it encourages the ISP to take down the content as quickly as possible to avoid liability.

The takedown policy of the DMCA has never made any sense, unless you are Big Media or an aspiring dictator.
[ link to this | view in thread ]
average_joe (profile), 18 Sep 2010 @ 7:17am

Re: Re: Re: Re: Re: Re: Re: Re:
Explain it to me then. I've got all day. :)
[ link to this | view in thread ]
average_joe (profile), 18 Sep 2010 @ 7:36am

Re: Re:
You have a point, to be sure. I'll be honest with you. I'm systematically teaching myself copyright law by reading statutes, caselaw, and journal articles. I'm studying anti-circumvention under the DMCA at the moment. I haven't studied the notice-and-takedown regime in detail yet. Until I do, I don't really have anything intelligent to say about it. I'm sure there are arguments on both sides of the debate, and that's what I'm interested in learning.
[ link to this | view in thread ]
average_joe (profile), 18 Sep 2010 @ 7:37am

Re: Re:
Sorry, I thought you were replying to me. I shouldn't just hit reply from my email without checking first... Oh well.
[ link to this | view in thread ]
Anonymous Coward, 18 Sep 2010 @ 7:45am

Re: Re:
"unless you are Big Media or an aspiring dictator."

You forgot IP lawyer.
[ link to this | view in thread ]
The Infamous Joe (profile), 18 Sep 2010 @ 8:11am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
The exclusive right to copy is supposed to be an incentive to spur creators to create. A transferred copyright does not spur the person or company to whom it has been transferred to create, as he has never created, and may not even be capable. Also, a temporary monopoly is clearly not what motivated the creator, as he was willing to give it up.

Since a transferred copyright is not performing the task it was designed to perform, it makes no sense to protect it, least of all at the detriment of Free Speech.
[ link to this | view in thread ]
The Infamous Joe (profile), 18 Sep 2010 @ 8:16am

Re: Re: Re:
Don't get me started on how I feel about lawyers who see the legal system being misused and, instead of attempting to rectify the situation, cream their slacks at the thought of all the money they could make.
[ link to this | view in thread ]
average_joe (profile), 18 Sep 2010 @ 8:36am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The exclusive right to copy, aka reproduction, is but one of the exclusive rights secured by copyright. You're forgetting adaptation, publication, performance, and display.

I don't really follow your argument though. The exclusive rights are what incentivized the author to create in the first place.

Of course the subsequent transferee of those rights isn't incentivized. The incentivizing already happened.

How would the incentivizing happen after the creation? That makes no sense.

And who's to say that the author wasn't incentivized by a right he planned to transfer all along? That happens all the time.

I'm not sure it's me that doesn't understand copyright, friend.
[ link to this | view in thread ]
Mike Masnick (profile), 18 Sep 2010 @ 11:12am

Re: Re: Re: Re: Re:
Of course you're for authors' rights. You just think they should have less rights, and the ones they do have, they shouldn't exercise.

For someone who claims to be so against "rhetoric," it's a bit silly for you to then claim that "stronger copyright" = "author's rights."

It's like pretending the RIAA really represents musicians...

I've been reading your blog for 5 months, and I can't recall a single post of yours where you sided with a rights holder who was defending their rights.

Heh. There's more to author's rights than copyrights. When you get to that chapter in school, let us know.
[ link to this | view in thread ]
average_joe (profile), 18 Sep 2010 @ 11:26am

Re: Re: Re: Re: Re: Re:
When did I say we need stronger copyright than we have now? And when did I say that stronger copyright equals author's rights? I guess you're just making stuff up again.

Funny how you didn't deny that in 5 months you haven't sided with a rights holder even once.

And you're so pro-authors' rights. LOL!
[ link to this | view in thread ]
Mike Masnick (profile), 18 Sep 2010 @ 12:17pm

Re: Re: Re: Re: Re: Re: Re:
When did I say we need stronger copyright than we have now? And when did I say that stronger copyright equals author's rights? I guess you're just making stuff up again.

Because that is the only thing I have been against.

Funny how you didn't deny that in 5 months you haven't sided with a rights holder even once.

Um. Reading comprehension fail. AJ. Seriously, grow up.

I always side with rights holders. The problem is you seem to think coypright is the only right we're talking about. Seriously, I spend an awful lot of my time helping "rightsholders." It's downright insulting and blatantly untrue that I do not side with them. Please, stop lying. It demeans you. Considering the number of content creators I work with and help every day, it's downright ridiculous.

What have you done to help rightsholders?
[ link to this | view in thread ]
average_joe (profile), 18 Sep 2010 @ 12:35pm

Re: Re: Re: Re: Re: Re: Re: Re:
You're not just against stronger copyright rights, you're against the rights that already exist.

I realize that there are things other than copyright rights. That does not negate the fact that authors have copyright rights and that you are against those rights.

Why don't you want authors to have the rights they already have? Why don't you want authors to exercise their rights?
[ link to this | view in thread ]
average_joe (profile), 18 Sep 2010 @ 1:16pm

Re: Re: Re: Re: Re: Re: Re: Re:
And while you're there, Mike, can you please explain to me exactly which artists' rights you're talking about that aren't copyright rights? Thanks.
[ link to this | view in thread ]
average_joe (profile), 18 Sep 2010 @ 4:21pm

Re: Re: Re: Re: Re: Re: Re: Re:
Mike, I know you're reading these posts...

I'd love for you to answer my prior two posts. It gets to the heart of my main beef with you. Perhaps we could talk it out and get to the bottom of it.

I'll be here...
[ link to this | view in thread ]
Mike Masnick (profile), 18 Sep 2010 @ 4:28pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Well, let's be clear here. You are using "rights" because it sounds so good. It's a misuse of language however. "Copyright" is not so much a "right" as it is a gov't granted monopoly privilege. And I am against misusing that privilege when it does not promote progress or has the potential to harm the holder of those rights in future opportunity.

So, let's be clear on language: I'm all for *rights* in that they have the right to produce works and monetize them, and I work hard with very many content creators to help them better make money and make a living -- in a way that doesn't involve relying on the "crutch" of copyright.

You're not just against stronger copyright rights, you're against the rights that already exist.

I'm against the use of an artificial monopoly privilege when using it serves to limit their ability to build a real business model that does not rely on such crutches.

I realize that there are things other than copyright rights. That does not negate the fact that authors have copyright rights and that you are against those rights.

Again, you are pretending copyright is a "right" rather than an artificial gov't-granted monopoly privilege.

Why don't you want authors to have the rights they already have? Why don't you want authors to exercise their rights?

Because making use of that artificial, gov't-granted monopoly privilege harms their ability to create a serious business model, in which they could do better.

My concern is helping content creators do much better, and do so in a way that better servers their audience as well. I'm also quite worried about how many content creators abuse that gov't granted monopoly privilege to harm many other's actual rights.
[ link to this | view in thread ]
MrWilson, 18 Sep 2010 @ 11:57pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
You're falling into the trap that the middlemen fall into. It's understandable since the middlemen are business majors and not artists/creators.

"The exclusive rights are what incentivized the author to create in the first place."

Artists will create no matter the state of copyright laws. It's an incentive if they can make money off of their creations for a limited time through a state-granted monopoly. It's not, however, the only cause for the creation of the work.

As Ezra Pound said, "Nothing written for pay is worth printing. Only what has been written against the market."

Granted his statement is a bit extreme, but it does represent the opinion of many artists. Certainly some artists would have less time and resources to create their art if they couldn't make money off of their work. However, artistic drive and talent are not dependent on the artist's need for money to survive. Why do you think the term "starving artist" is so common? In my experience, artistic drive is not forgiving of the artist who ignores it, whether or not he could make money off of it. Inspiration is a real bitch when you try to ignore it.

Many artists have day jobs and create their art on the side. There's nothing in copyright law that says artists must be able to make a living off of their art. Market factors, such as demand, can greatly affect this. When wooden ships gave way to ironclad and steel ships, the sculptures who carved figureheads had to find a different source of income, a different business model if you will. Not to mention that being a bad artist means no one will want to buy your art or hire you to create more.

Let's imagine copyright disappeared tomorrow. Would art disappear? Of course not. Would all artists starve? No. Some would make money the way they already do. Some artists sell paintings for thousands of dollars. Sure, someone else could take a picture of that painting and sell prints, but if someone wanted a painting in the same style, they'd have to commission the artist to paint it (or another artist with comparable skill and the ability to emulate the style). Does the ability to buy a print of a Van Gogh painting make the original painting worthless? Of course not.

The argument that copyright protects the incentive for artists to create is wrong. The incentive is for the middlemen because they wouldn't have a business model without the artists. Copyright only protects those who didn't originate the work. The artist can always create more in their own style. They retain their artistic ability even if they have all of their existing art copied. The middleman can only hope to find someone else to create art that he can monopolize.
[ link to this | view in thread ]
average_joe (profile), 19 Sep 2010 @ 9:36am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Hey Mike, I appreciate your response, and I wanted to let you know I got it. I'm actually a little taken aback by your position. To be honest, it's worse than I thought. I'll post a true response later. I'm stewing it over in the meantime...
[ link to this | view in thread ]
Anonymous Coward, 20 Sep 2010 @ 4:40am

Re: Re:
sorry, that was CBS and Katie Couric, not fox news. so please take a minute to re-read that and see if you still have the same comment.
[ link to this | view in thread ]
average_joe (profile), 20 Sep 2010 @ 7:45am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Well, let's be clear here. You are using "rights" because it sounds so good. It's a misuse of language however. "Copyright" is not so much a "right" as it is a gov't granted monopoly privilege.

No, Mike, you are wrong. I call it a "right" because that's what it's called. It's called a "right" in the Constitution, in the Copyright Act, by Congress, by all of the courts, by the President, by law professors, by scholarly journals, by the dictionary, etc. It most certainly is a right.

Let's look to Black's Law Dictionary:

right, n. 1. That which is proper under law, morality, or ethics. 2. Something that is due to a person by just claim, legal guarantee, or moral principle. 3. A power, privilege, or immunity secured to a person by law. 4. A legally enforceable claim that another will do or will not do a given act; a recognized and protected interest the violation of which is a wrong. 5. The interest, claim, or ownership that one has in tangible or intangible property.

Every single one of those definitions fits. The only person trying to twist language is you, and even then you're accomplishing nothing. All rights are "gov't granted monopoly privilege[s]" when you think about them. Can you name one that isn't?

You think that by throwing out the word "monopoly" you somehow win the debate. You don't. That's just silly. There are lots of rights that can be described as a monopolies. "Monopoly" just isn't the dirty word you think it is.

And I am against misusing that privilege when it does not promote progress or has the potential to harm the holder of those rights in future opportunity.

As far as I can tell, you don't think copyright ever promotes the progress. Nor do you think that any rights holder should ever exercise the rights they have. This is just ridiculous. Clearly copyright incentivize creators to create. There are so many examples of this that you'd have to be willfully blind not to see them. By incentivizing creators to create, the progress is promoted. It's amazing to me that you refuse to see that this works.

So, let's be clear on language: I'm all for *rights* in that they have the right to produce works and monetize them, and I work hard with very many content creators to help them better make money and make a living -- in a way that doesn't involve relying on the "crutch" of copyright.

So let's be clear, you are not all for authors' rights. I've said it before, and I'll say it again: Ironically, you want to promote authors' rights by taking them away.

You are anything but for authors' rights. You think authors should roll over and let people infringe on the rights they already have. You don't even think they should have the rights they have. You want to take them away.

Copyright isn't a crutch, it's a tool. The very rights that you actually do believe in are grounded in copyright. Without copyright, your business models wouldn't even be possible.

Just because you've got a way for authors to make money that only involves using some of their rights doesn't mean that all authors should follow your lead. The world isn't one size fits all, Mike.

Are you really so disillusioned that you think your way is the only way? Sad. Truly sad.

I'm against the use of an artificial monopoly privilege when using it serves to limit their ability to build a real business model that does not rely on such crutches.

Again, you have to use the words "artificial monopoly privilege" instead of "right" because clearly you think that you're making it sound dirty. It just makes you sound dumb, IMO.

And again, why do you think your method is so great and anyone not using your method isn't using a "real business model"? Spoken like a true delusional person.

If you've got something that works for you, then good for you. That's got nothing to do with everyone else. Obviously other people are using successful business models that differ from yours. Are you really saying that every other business model is flawed? Get over yourself.

Again, you are pretending copyright is a "right" rather than an artificial gov't-granted monopoly privilege.

Good grief. Spoken like a true fanatic. You are one of the most closed-minded, stubborn, and confirmation-biased people I've ever had the displeasure of meeting on the internet.

The only person pretending anything is you. It is a "right." There is absolutely no way that it isn't. See above.

Because making use of that artificial, gov't-granted monopoly privilege harms their ability to create a serious business model, in which they could do better.

Again, why is your business model the only "serious" one? Get over yourself. Most people in the world don't use your business model, and the world's getting along just fine. You really sound like a crazy person, Mike.

My concern is helping content creators do much better, and do so in a way that better servers their audience as well. I'm also quite worried about how many content creators abuse that gov't granted monopoly privilege to harm many other's actual rights.

And yet you never once have ever even hinted at the possibility that the plaintiff in a copyright suit might actually in some way be a victim.

And why in the world do you think that if everyone used your model they would do so much better? Are you really that full of yourself?

You've created a crazy little world, Mike. At this point I'm regretting ever taking a look at it.
[ link to this | view in thread ]
average_joe (profile), 20 Sep 2010 @ 7:50am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Noticeably, you cannot name one artists' right that you're for that isn't based in copyright.

No surprise there, Mike.
[ link to this | view in thread ]
Mike Masnick (profile), 20 Sep 2010 @ 10:16am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Copyright is no more a right than "intellectual property" is property.

I am not using the term "monopoly" because I think it sounds bad, but because it's accurate. You're correct that lots of thinks are monopolies and aren't bad. I just want to make sure when discussing things like copyright, we do so accurately. You choose not to do so, which is your choice, but it explains why you cannot understand the basic issues at hand. Words are important. You choose words to deceive. I choose words to be accurate.

I would prefer to be accurate.

The issue, I believe is that you are looking at this from a lawyer's perspective. I choose to look at it from an economist's perspective. I believe that the economist's perspective makes a lot more sense in determining how one can be better off. A lawyer merely looks at it from what the rules say, which is rather meaningless and useless in terms of understanding how you can be better off.

And you are correct, I have yet to see evidence of where copyright "promotes the progress." If you have some, I would be happy to see it. I've been asking for it for years, and no one has been able to present any proof yet. However, I am perfectly open to such proof, should anyone be able to present it.

So let's be clear, you are not all for authors' rights. I've said it before, and I'll say it again: Ironically, you want to promote authors' rights by taking them away.

Ah, rhetoric.

AJ, You have the right to be an asshole, but I don't think it's a smart move. Does that mean I am against your rights?

I do not think that what I talk about is "the only" business model. I just think that the economic evidence is pretty clear that relying on copyright is not a very good business model. I'm constantly amazed at the new business models that people come up with, so I have no "delusions" that only I know what works. But I have seen pretty clearly what does not work well.

And yet you never once have ever even hinted at the possibility that the plaintiff in a copyright suit might actually in some way be a victim.

I'm sure it's entirely possible. But I have yet to see a case where I believe it's true. That's because in pretty much every case of copyright infringement that I have seen, the person whose work was infringed could have made a much better response than to have used copyright.

And why in the world do you think that if everyone used your model they would do so much better? Are you really that full of yourself?

Again, I'm not talking about "my model." I'm talking about basic economics.

You've created a crazy little world, Mike. At this point I'm regretting ever taking a look at it.

"It is difficult to get a man to understand something, when his salary depends upon his not understanding it!"
[ link to this | view in thread ]
Mike Masnick (profile), 20 Sep 2010 @ 10:19am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Noticeably, you cannot name one artists' right that you're for that isn't based in copyright.

Oh, I figured that was rather obvious. They have the right to free expression. They have the right to make money. They have the right to choose a smart business model. And plenty more.

I just figured that was obvious. Didn't realize I needed to spell it out for you.
[ link to this | view in thread ]
average_joe (profile), 20 Sep 2010 @ 12:59pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Copyright is no more a right than "intellectual property" is property.

Copyright is 100%, unequivocally a right. I cited tons of authority for this FACT. You have cited no authority. To continue to pretend that they aren't rights makes you a complete idiot.

I am not using the term "monopoly" because I think it sounds bad, but because it's accurate. You're correct that lots of thinks are monopolies and aren't bad. I just want to make sure when discussing things like copyright, we do so accurately. You choose not to do so, which is your choice, but it explains why you cannot understand the basic issues at hand. Words are important. You choose words to deceive. I choose words to be accurate. I would prefer to be accurate.

Yes, Mike, the exclusive rights secured by copyright are limited monopolies. You are only pointing out the obvious. Nevertheless, they are still rights. If the exclusive rights secured by copyright didn't create a limited monopoly, they wouldn't be exclusive rights. Again, to say they aren't rights make you intellectually dishonest. You cannot support your claim. I can support mine beyond a reasonable doubt. This makes you a dishonest idiot.

The issue, I believe is that you are looking at this from a lawyer's perspective. I choose to look at it from an economist's perspective. I believe that the economist's perspective makes a lot more sense in determining how one can be better off. A lawyer merely looks at it from what the rules say, which is rather meaningless and useless in terms of understanding how you can be better off.

Lawyers are trained to look at issues from all sides, so I take that as a compliment. And believe it or not, the law is actually concerned with what makes society better off. In fact, it's obsessed with it. To say that only your point of view is concerned about society makes you an idiot.

And you are correct, I have yet to see evidence of where copyright "promotes the progress." If you have some, I would be happy to see it. I've been asking for it for years, and no one has been able to present any proof yet. However, I am perfectly open to such proof, should anyone be able to present it.

To say that you don't see how copyright promotes the progress makes you willfully blind. How can you possibly not see it? It's all around you, Mike. Does not copyright incentivize authors? Yes, it does. Do incentivized authors promote the progress by creating their works? Of course they do. Only a complete idiot couldn't see one example of this. How can you possibly say that honestly? You must be the blindest idiot in the world. Seriously, Mike, WTF? Of course, given that you're an idiot, it all makes sense.

Ah, rhetoric. AJ, You have the right to be an asshole, but I don't think it's a smart move. Does that mean I am against your rights?

And yet, it's never a smart move in your mind when anyone protects their rights. That makes you an asshole who thinks he knows what's best for everyone else. I prefer to let people decide for themselves what's best for them. And besides, if people are asserting their rights under copyright, that means copyright has already worked and that person was already incentivized to create. If they hadn't already created their work and promoted the progress, their wouldn't be any rights to assert. I'm sure this makes no sense to you, being an idiot and all.

I do not think that what I talk about is "the only" business model. I just think that the economic evidence is pretty clear that relying on copyright is not a very good business model. I'm constantly amazed at the new business models that people come up with, so I have no "delusions" that only I know what works. But I have seen pretty clearly what does not work well.

And yet, when anybody does anything pursuant to a business model that differs from yours, they're wrong. That makes you a know-it-all asshole. Lots of people rely on copyright and do quite well, but of course, you don't see any evidence of that. In fact, your business model relies on copyright too, but hey, let's not talk about that. You are truly the most willfully blind idiot I've ever seen on the internet, and that's saying a lot.

I'm sure it's entirely possible. But I have yet to see a case where I believe it's true. That's because in pretty much every case of copyright infringement that I have seen, the person whose work was infringed could have made a much better response than to have used copyright.

Wow, not one case in the history of copyright where the plaintiff was right to bring their case? God, you're an asshole. You think you know what's better for everyone. The world doesn't work that way, Mike. Only an idiot would think that.

Again, I'm not talking about "my model." I'm talking about basic economics.

And your model, which is based on basic economics, is the best model in the world and anyone not following it is by default wrong. Thank God that's not true. Of course, an idiot wouldn't be able to see that.

"It is difficult to get a man to understand something, when his salary depends upon his not understanding it!"

You really are an idiot, Mike. I mean that from the bottom of my heart. Have a great afternoon.
[ link to this | view in thread ]
average_joe (profile), 20 Sep 2010 @ 1:03pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Oh, I figured that was rather obvious. They have the right to free expression. They have the right to make money. They have the right to choose a smart business model. And plenty more.

I just figured that was obvious. Didn't realize I needed to spell it out for you.

Well, yeah, Mike. Believe it or not, your idiotic thoughts aren't self evident.

Thank goodness copyright exists so artists and authors can do all those things you think they should do.
[ link to this | view in thread ]
Mike Masnick (profile), 21 Sep 2010 @ 1:16am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I lost count of the insults in this post. I shall not respond to you further.
[ link to this | view in thread ]
average_joe (profile), 21 Sep 2010 @ 6:24am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I couldn't care less, Mike. I used to have some respect for you, but now there's none. You are even more intellectually dishonest than I ever could have imagined.

You really can't think of one single example of a copyrighted work that promoted the progress? Give me a break. I bet even your morally bankrupt followers don't follow you there. Look around you, Mike. There's copyrighted works everywhere. And guess what, they're promoting the progress. Only an idiot couldn't see it. And you've got an open mind. Bull shit. You're the most closed-minded idiot I've ever seen on the 'net. And that is a remarkable feat.

The Founding Fathers added the Copyright Clause to the Constitution because they saw how it promotes the progress. It was so obvious to them that the committee's vote was unanimous. Yet little Mike can't think of even one example, not in over two hundred years of copyright. I guess you think you're smarter than the Founding Fathers. No surprise there... of course you do. You think you're smarter than everyone. Here's a clue, Mike. You're not. You're just an asshole.

And you can't even ADMIT that they are rights. Yes, Mike, they are rights. You offered no evidence to back up your assertion that they aren't. No surprise there because you are so incredibly wrong. Even the Constitution calls them rights. But we already know you think you're smarter than the Founding Fathers.

And no wonder you don't think anyone should ever defend their rights. You don't want them to have the rights in the first place. Incredibly though, you don't even realize how stupid your position is. You have these AWESOME alternative business models that rely on, guess what, copyright. LOL! What kind of an idiot wants to do away with laws that protect his own business models? Mike, that's who. The guy who thinks he's smarter than the Founding Fathers, Congress, the President, and everyone else in this world. LOL!

You are the most intellectually idiotic person I've ever seen. I have zero respect for you. You have zero credibility. I know people know your views are fringe, but I bet they don't know just how fringe they are. I can't even believe it myself. OMG, Mike, you take the cake. King of the idiots.

Feel free to respond. I'm sure I have a ton more insults for you.
[ link to this | view in thread ]
The Infamous Joe (profile), 21 Sep 2010 @ 7:19am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
It's odd: I thought when you pointed out that when I called you names it served no purpose (and I even apologized) it meant that you were going to hold yourself to the same standards. The gloves are off then?

You really can't think of one single example of a copyrighted work that promoted the progress?

I read Mike's post and didn't see where he said that. I believe it states: I have yet to see evidence of where copyright "promotes the progress." I, too, see no evidence that copyright law, in general, promotes the progress. I see example after example of how it is used to silence free speech, eliminate competition and siphon funds from actual R&D into a legal department to defend against lawsuits in East Texas. Furthermore, the few markets in the world that still have reasonable IP laws show booming innovation as opposed to the stagnant markets in countries with harsher IP laws. I can only speak for myself, but this "morally bankrupt follower" (which hurts, from a future IP lawyer!) understands what Mike is saying.

The Founding Fathers added the Copyright Clause to the Constitution because they saw how it promotes the progress.

They also added rules for slavery. Times change.

You offered no evidence to back up your assertion that they aren't.

The temporary monopoly on so-called intellectual property is an *exemption* to the public domain. The public domain is the right, and as a trade off, the idea of the temporary monopoly was devised.

You don't want them to have the rights in the first place.

I never once have seen Mike say this. To suggest it would be intellectually dishonest. There is a difference between saying it would be unwise to do something, versus saying you shouldn't be able to do something. To elaborate: Mike has never said copyright holders shouldn't be allow to sue 80 year old grandmothers, he has only suggested that doing so may not make sense economically.

What kind of an idiot wants to do away with laws that protect his own business models?

The type of idiot that understand economics, apparently. As has been said on Techdirt before, merely copying an innovator only catches you up to where they were, not where they are. Furthermore, if a competitor copying your business model is all that it takes to break your business model, then your business model was broken to begin with.

You are the most intellectually idiotic person I've ever seen. I have zero respect for you. You have zero credibility. I know people know your views are fringe, but I bet they don't know just how fringe they are. I can't even believe it myself. OMG, Mike, you take the cake. King of the idiots.

I fail to see why you're here. If you are here to debate, you are failing. No one wants to debate with someone who acts like a spoiled child. (someone spared the rod!)

If you are here to educate, you are failing. You come off as condescending and arrogant-- no one will learn anything from you.

If you are here because you want to troll, you can leave, we are on to you.

If you are here because you are paid to be here, well, actually, that makes sense. Carry on.
[ link to this | view in thread ]
average_joe (profile), 21 Sep 2010 @ 7:56am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I'm not surprised you don't get it. You didn't even understand how incentives work, as I recall. LOL!
[ link to this | view in thread ]