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.
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Filed Under: chilling effect, copyfraud, education, fair use, permission
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Re: :-/
Use your loaf, seriously.
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Reclaiming fair use
http://www.ithaca.edu/looksharp/
http://www.centerforsocialmedia.org/fair-use/related-mat erials/codes/code-best-practices-fair-use-media-literacy-education
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Human Unstoppable
IMHO, this guy should just anonymously publish his work in--complete with the graphic he'd originally intended to use--and let the wisdom of the mob decide if his work should be held up in the annals of human memory; or left to decay.
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Re: Human Unstoppable
Being in a similar situation in the past, with a work I planned on releasing for free, my advice would be to do exactly what he is doing (at least for now.) If you post it anonymously, the company already knows you have it, and they'll come for you which he is trying to avoid. Wait a while for the current idiots to die off and then you'll be able to do what you want. Its unfortunate, but necessary in this stupid environment.
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Re: Re: Human Unstoppable
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Re: Re: Re: Human Unstoppable
It depends on a number of things, I guess. Will Techdirt and Techdirt's Insurance Company take that on as a risk? Can they write a bulletproof contract that will convince a judge that the company can't sue the author in addition to Techdirt?
The shield has to be extremely strong...in my case, they threatened not only me, but my employer (I was doing this for free on my own,) and the company my employer was a sub-contractor for (and both fought for me in that case.) But after sitting down and figuring out that I could not afford to be sued (since I was doing it on my own and my employer wasn't going to provide me with a lawyer,) I put the paper on hold. Sometimes you can be in the right and still not be willing to deal with the results. Sure, I might win, but at the risk of bankrupting me financially, it just wasn't worth it. We figured out another way to get the information out and moved on. We discussed releasing it anonymously, but we figured that since they already threatened us, the moment the paper saw daylight, we were boned.
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Re: Re: Re: Human Unstoppable
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Re: Re: Re: Re: Human Unstoppable
It's usually spelled 'lawyer', isn't it?
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And if he can make his point another way, without using the property of another under fair use, let him find another way of expressing it, which sounds to me like it would be far more original (the encouragement of which is the purpose of copyright in the first place). No speech is obstructed, just the abuse of the property of another.
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Re: $$$
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Re:
But, do you know how fair use works?
First you have to be sued. Then you have to get a lawyer. Then you have to go to court and present a fair use argument. Then you have to defend that fair use argument against lots of complicated challenges. It costs a lot of money and a lot of time, and is simply impossible for a lot of people - so no matter how confident they are that what they want to do is fair, they don't do it because simply the threat of copyright infringement could break their pocketbooks and derail their lives before they even get to claim fair use.
That is the very definition of a chilling effect.
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Not all legal bills should be paid if one side loses since sometimes there are part losses.
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Not doing so -- and thereby submitting to the fallacies and fear this piece tends towards -- is what causes a chilling effect upon your own speech.
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It doesn't matter how educated you are, or how sure what you are doing is fair use - because you still need to have the time and money available to fight it in court
Fair use is not an affirmative right. It is a defense against a copyright infringement lawsuit. It is useless unless you are willing and able to go to court and assert it.
Thus you can be the most educated person the world, and 99.999% sure that what you are doing is fair use, but still quite reasonably decide not to publish your work because if someone decides to challenge you, you're screwed.
Again: that's the very definition of a chilling effect.
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So that is one vote for moral right then, huh?
If I own the rights in a work, I get to say if you may use it, unless your usage would be permitted, for example, under some lawfully recognized exception such as fair use.
No! no! no! no! Thank god you aren't a lawyer...you'd be laughed out of court. Copyright is about distribution, not use. Get it right. I cannot distribute your intellectual property, but I can use it whatever way I want except distributing it. It is called "copyright" for a reason...so long as I don't make a copy, you lose.
That is not a chilling effect: it is called PRIVATE PROPERTY.
It is not called private property. It is called intellectual property. If it was private property, I could sue you for being injured on it or by it, and neither is possible with intellectual property.
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Hmm, I didn't see that suggestion anywhere. I think he was suggesting, and I agree with him, that copyright can be and is frequently used in an abusive way.
In this case, the abuse takes the form of taking advantage of the fact that the court system is really only usable by people who have a fair bit of money, regardless of the merits of their stance. A copyright holder's threat to sue can effectively deprive others of their legal exercise of free speech because no matter how right they are they couldn't afford to defend themselves.
I know ltlw0lf already said it, but it bears repeating: "intellectual property" is not, in fact, property.
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But, to respond to your comment, under the US Constitution, freedom of speech is not absolute. There are many limitations upon speech, even as the law generally encourages freedom of speech.
Intellectual property is without doubt under the law a form of personal property. And as to abuse, remember that I, as rights holder in property, can limit your ability to make use of it. Unless you are somehow otherwise lawfully permitted, as under fair use.
By analogy, under the law, you can not use my car without my permission, regardless of the goodness of your purpose or your perceived or actual need.
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All that Leigh is saying is in Copyright, like most civil legal areas the person with the most money normally wins.
And in regards to Copyright and the US Fair Use defence, it is a burden on the respondent to Prove (onus of proof reversed) fully that they are able to. The burden has shifted away from whom it should be on. The plaintiff (the copyright holder) since copyright is a license ONLY should have to prove that the work was NOT used for 'legal purposes'.
This is one of the main problems with Copyright (IP) legislations worldwide. The onus has shifted away from where it should be.
and Copyright is NOT property! Copyright is the license granted for your property for a limited time before it becomes public property. It is intangible, cannot be stolen (other than in very strange circumstances) and can only be transferred in whole not part.
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The sum total of legal fees? £4,052. And that was for a simple civil case. Now imagine it isn't simple for something. Let's call this something "copyright" which is much more complex than my civil case.
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;)
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Re: Stifle Me Not
really. copyright is just like owning a car. because you can make multiple copies of your car so multiple people can drive it at the same time all while still driving it yourself.
i'll give up my fair use they day i can get a copy of a car to drive for a small permission fee.
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If the satisfaction of publishing is worth the fight, however, maybe he could get a lawyer to work on a contingency if the company took legal action. If it's that clear cut, the company might have to pay his attorney fees.
disclaimer: IANAL, ask a real one before you take my advice.
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Mike is lying, deliberately so, to his readers. The only fraud here is the words being typed by Mike's chubby fingers.
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The company knows that this is sufficient to stop people like him and doing so is still a form of copyfraud. It wasn't blatant yet because no act was actually committed on either side. But the mere hinting of a threat is still a mild form of copyfraud.
That said I think Mike's friend needs to nut up and publish it. You can't go through life being afraid of everything.
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In fact what they have done could be actionable under 'Extrinsic fraud'
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And while I hate hearing how companies "hate to do this, but have to protect their intellectual property stringently," this isn't Copyfraud. It's just another copyright holder being douchy, uncreative and unreasonable. Copyfraud wouldn't even really result here if the publisher said "...and if you do, we reserve the right to sue you." Their copyright, their right. It's a far cry from fraud when a suit is brought that requires a real analysis of the situation to determine who prevails.
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I'm serious. That's what the law you're telling me exists would look like. There is nothing even close. The closest is the academic here uses in spite of the refusal, gets sued, then prevails on a fair use defense. If you can find me a single thing to shore up your suggestion, I'll buy you a case of beer.
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Re:
You spelt Winner wrong
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chilling
OMG I just took your comment and copy-pasted it. If you look above to your comment, you will see the portion I re-posted here gone, because it was stolen by me and now exists only over here. Call in the lawyers.
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Re: chilling
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Re: Re: Re: Re: chilling
The commenter was pointing out how laughably irrelevant your car analogy is in this debate.
Let me explain in very simple terms what's very wrong with your astoundingly shortsighted argument:
A car is a physical object. If I take your car, you are unable to use it. That is called theft.
If, on the other hand, I copy your idea/expression, the "original" is left unaffected, and still in your "possession". It is still intact. What's more, now I have a copy of the idea, and it can be used by both of us.
Your repulsively stupid, and blatantly misleading car metaphor is tissue thin, and doesn't apply to the debate at all.
In summary: I sincerely hope you realize how terribly thoughtless, inept and generally uneducated you sound.
If you can't tell the difference between intellectual "property" and physical property, you simply don't belong on the internet.
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Re: Re: Re: Re: Re: chilling
Then you assert 'likeness/moral rights' out of nowhere, and having deeper pockets than the photographer, their expression is 'chilled' because it won't just get thrown out of court.
I could keep extending this further but...
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Is there?
I read quite a bit about fair use/copyright/trademarks, but when it comes to looking at my own work, I'm too close to the pieces to decide if it's "legal" or not.
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Re: Is there?
Nobody even knows of a judge or lawyer that is able to look at an artist's piece and actually determine its status - any time you rely on fair use, you roll the dice, and that's why fair use is such an inadequate counterbalance to copyright.
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Re: Re: Is there?
Try reading.
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html
Specifically, the large section on Fair Use.
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Re: Re: Re: Is there?
That's what I mean by roll of the dice. And that's what I mean by chilling effect. And nothing you've said changes it in the slightest.
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Re: Re: Re: Re: Is there?
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Re: Re: Re: Re: Re: Is there?
If you are talking about Leigh, his sentiments are commonly held by those who would benefit for more legal education.
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Re: Re: Re: Re: Re: Re: Is there?
I'm going to give you the benefit of the doubt and suggest you read more. Were I not to, I'd say that you should stop spouting nonsense.
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Re: Re: Re: Re: Re: Re: Re: Is there?
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Is that enough information? I like long walks on the beach, too, but I like them by myself.
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Re: Re: Re: Re: Re: Re: Is there?
I AM NOT GOING TO EXPEND A LIFETIME STUDYING COPYBS, just so I can take advantage of it, I will however ignore and bypass it.
At some point, people just say enough is enough and will push back on that crap and they will find a way to bypass the law.
Here is how I do it.
https://meta.wikimedia.org/wiki/Help:Public_domain_image_resources
Screw you and copyright.
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Re: Re: Re: Re: Re: Re: Is there?
The problem isn't ignorance of the law, though. The problem is that "fair use" is determined in court, which means you have to get sued before you can bring it up in a useful way, and unless you have at least a fair bit of cash you can burn you cannot afford to defend yourself in court. Even if you're 100% correct.
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Re: Re: Re: Re: Re: Re: Is there?
In fact their is no bright line that can be drawn that unequivocally states what is and what isn't fair use! RightHaven came across that when they tried to deny that fair use was not a full copy of work ever. OOPS!
As for Leigh's sentiments about chilling effect they are held by MOST legal professionals, And what some (myself included) in the legal fraternity commonly refer to as needed tort reform is a huge hot topic within the worldwide legal community.
Maybe you yourself would benefit from education
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He did it the right way by asking permission, got shot down and made the best of it. If you are so sure of yourself, why didn't you offer to cover any liability or defense arising from his "fair use"? Don'y bother answering, I already know the answer.
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Not sure why I'm feeding the troll.
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Cause sometimes they are just soooo cute.
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Care to elaborate why you think these are bullshit assertions?
Mike listed all the reasons why he thinks it meets criteria of a typical fair use defense and you absolutely DO NOT need to ask permission for a fair use situation.
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Re: Re:
Above is a response to Anonymous Coward, Apr 25th, 2012 @ 12:33pm
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DING! Troll Word-of-the-Week!
Everyone yell like Pee Wee's Playhouse!
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Actually I am not sure myself. Maybe due to the fact the the book was published 50 years ago and is in the public domain or something. But I really don't know because details were left out.
My comment was just poking fun at all the over usage of the word "nuance" this week. Lighten up a bit, Sparky.
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Right. You don't see the fraud because there is none. Mike Masnick is deliberately lying to his readers--again.
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Anyone is free to decline to agree to someone's use of their work. Whether the someone goes ahead or not, and whether that going ahead is legal or defensible, is another inquiry.
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With all things considered I still take Mikes word over yours any day.
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And Mike didn't make a mistake. Mike's way too smart for this sort of manipulation to be accidental. Give me a break. He's just selling snake oil, folks.
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BTW, if, instead of bitching about Mike and spewing ad hominem attacks on him and the people here, and put that effort into just arguing your position about the issue, you'd probably actually just have people respectfully agree or disagree with you instead of flagging you and flipping you the bird. (Well, I know at least one person flipping you the bird.)
Oh, wait, unless you are aiming for flags so that you can bitch more.
I see what you did there. My bad, sorry.
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On face their actions are misleading though I don't think it would meet the level of 'copyfraud' which I'm not sure if anyone realises is actually not a tort/crime.
In Aust at least we have sect 202 of Copyright Act [1968] where penalties can apply for 'groundless threats of legal proceedings'. Basically an Anti-SLAPP for Copyright Abuse ;)
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Hur duuurrrrrrr.
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And by the way, if we still don't know who you are, why the big fuss when Mike alludes to knowing who you are, eh?
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Spraying faeces everywhere and then complaining when it's washed away is not censorship. This is even less so, because the comments are just slightly hidden, not removed. You might as well complain that they aren't visible to anyone on the main page. Anyone who wants to will read your drivel.
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But I won't even bother arguing that point. You're coming here, claiming to know what's in Mike's head when he posts, claiming that something isn't even arguably copyfraud when a quick Wikipedia search shows that using the definition of copyfraud and giving a charitable reading to Mike's usage of it clearly precludes calling him a liar for saying that it is. (In case you, or anyone who's thinking you might have a point, missed it: see my post on this below.)
But the point you miss, the point that matters not at all to you because you *want* to whine and attack and bitch and moan, is this: people aren't blocking your post because they don't like your message.
They're blocking it because they think you're being a twat.
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umm...that is censorship, a few people deciding that the community as a whole should no longer see what he wrote
yes, I can unblock the post, got it, but the issue is someone else is deciding hwat I should or should not see
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The onus you two are putting on copyright holders is misplaced. No one has the duty to look into all the facts surrounding a requested use by someone else of work you own, determine whether that use, based on the 4 factors of 17 USC 107, is more likely than not a fair one, then respond accordingly viz the request.
And no court in the country would find that the failure to do the above, or the failure of the publisher to be armed in advance with enough knowledge to make the correct decision on every request, is fraud.
By stretching this concept past the breaking point, you're undermining reasonable arguments in favor of greater fairness. Please recognize that.
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LOL! Really? The company hasn't filed suit here, so your hypothetical about what they'd have to consider before doing so is inapplicable. Nor is it a correct statement of the law. Other than the Lenz case, can you point me to any case law that backs up that point? Keep in mind that the district court's decision in Lenz is not binding precedent, and as far as I know, no other court has followed that lead. Besides, I can find lots of case law that says you don't have to consider the defendant's affirmative defenses before filing suit.
As far as even hinting about suing being copyfraud because this is so clearly fair use goes, give me a break. If this company is in the business of licensing this content, then you can bet someone trying to use that same content for free may not seem fair to them. It's possible that they could look at the facts, consider the fair use factors, and reasonably differ as to how fair this use really is. It is NEVER fraud to threaten to exercise lawfully a right that you possess. And even if they think that this isn't clearly fair use, that's not fraud either.
Fraud is a term of art, and the facts that we have here (facts that you know Pirate Mike has slanted as much as possible) do not support a claim of fraud. If this guy brought suit against the copyright holder claiming fraud, I'm sure he'd find himself answering to the court for the baseless claim. I know I'd move for sanctions for even bringing the claim in the first place, that's how baseless and frivolous it is. All this is is a guy wanting to license a work, and the copyright holder telling him no. There is absolutely no fraud involved.
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You really need to think about this. You're so attached to an idea that you enjoy that you're blind to what's true. Read the Copyright Act. Read the case law. Read...anything but the last things you yourself have written: you're flat-out wrong. I know you like the idea, and it may be a fine idea, but it's nowhere near the law.
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There is something called "vexatious litigation" and to cross that barrier you either have to be a moron or literally unable to grasp the concept of "No". Anyone can file a civil suit, regardless of merit, and you would still have to attend court, with all the costs that incurs.
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Not Fair Use
However, your friend might still be able to license the picture. Instead of contacting the publisher (whose policy is to say no), he should have contacted the Copyright Clearance Center (copyright.com) (whose policy is to say yes). The CCC would charge a small fee for its use and the burden of tracking down the current copyright owner (it may have reverted back to the artist), would be its job. Your friend should try that!
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Re: Not Fair Use
Think of a review of an art show, which review is published in an art magazine, and which review relies on a representative image to avoid being simply art-world blather.
Grabbed: copyrighted image. Used: in published work. Use: fair. Examples: Art Forum, Art in America, Modern Painter, The New Yorker . . .
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Re: Not Fair Use
That's exactly what fair use allows. That exact thing, in those exact words, in one of the KEY applications of fair use, and it is employed thousands of times every single day.
For example fair use is what newspapers and TV shows rely on when they print/broadcast copyrighted images for the sake of commentary (say a clip from a TV show, or a piece of artwork, or the cover of a book). Fair use is the reason you can quote an excerpt from another piece - like we do at Techdirt every day - for the sake of commenting on it. Fair use is the reason a videogame critic can show a screencap, and the reason Google can display image thumbnails in its search.
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Re: Re: Not Fair Use
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Re: Re: Re: Not Fair Use
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Re: Re: Re: Not Fair Use
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Can the research work without that one image?
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Re: Can the research work without that one image?
heck, get someone else to draw/photograph something non-identical but similar enough that it still does the job of illustrating the point. (mileage may vary based on point.)
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http://www.photos-public-domain.com/
https://meta.wikimedia.org/wiki/Help:Public_domain_im age_resources
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copyright permissions
The article states that permission was requested to reprint an "image." It is important here what the image is; the rights to photos are almost always held by the photographer, so if it was a photo taken by someone other than the original author, the author would have had to have licensed the reprint rights to use it, which would not give the publisher any right to grant others the right to print, only to print it themselves. Also, if that were the case, then the photo would be a work in it's own right, and not a small part of a larger work. For instance, if I publish a book and get permission to use an image of an Ansel Adams photo, I only have the right to print that image, and can't grant anyone else the right to print it. My using it in my book does not make it a minute part of a larger work, but it remains a complete work on it's own.
If the image was a chart or a graph, it would be similar; whether the publisher could grant reprint rights would depend on where it came from; the would only have reprint rights if the original author had produced it himself as part of the book. Thus, it's actually quite likely that the book publisher did not grant the permission simply because they did not have reprint rights themselves.
I would only grant permission for images if I had physical copy of the book in which I could check for photo credits. However, we controlled somewhere around 15,000 titles, and try as I might, I couldn't fit more than about 10,000 of those in my cubicle. While I did have access to the contracts for the books, the photo credits generally stayed in the editor's files - getting ahold of editor's files from 50 years ago was simply not possible.
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Re: copyright permissions
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Re: copyright permissions
Would that mean then that if you could find the original photographer you could potentially get the permission from him/her to use it? Are there any circumstances where the original photograph could be public domain?
Sorry if you answered these questions already, I'm just trying to better understand, and after awhile none of it makes sense.
Or could you make a reasonable facsimile of the photo in question?
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Re: Re: copyright permissions
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Re: Re: Re: copyright permissions
I worked clearing permissions for the publisher, and most of the people I cleared them for were professional permissions obtainers (freelancing for other publishing companies).
Charts and graphs work the same way if the author got them from somewhere else, but are like part of the text if the author created them herself. Books that reprint graphs or charts from somewhere else usually credit them somewhere.
I had to look up what's in the public domain, as it depends on a number of things. The easy ones for photos are anything prior to 1923 and any photo belonging to the government. Here's a chart: http://www.unc.edu/~unclng/public-d.htm
I seem to recall that Ansel Adams worked for the government for a while; if so, any photo he took for them would be in the public domain. The rest would get you sued.
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Re: Re: Re: Re: copyright permissions
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Re: copyright permissions
That's not true all that often, actually. If this was a work that was commissioned for a magazine, for instance, then the magazine would hold the copyright on the image. Also, in order to get published, many magazine/book publishers require the artist to assign the copyright to the work.
This is even more true with works from 50 years ago. Prior to the 1976 Copyright Act, you could not divide up the rights to a work; every work had one single "proprietor" who held every single right to that work. It's even more likely that it isn't the artist who holds the copyright; assigning copyrights to publishers was even more of a standard practice back then (making the publisher the sole proprietor).
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was it used
If not, why the reticence in discussing details?
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RE: but is it copyfraud
Just curious: Wikipedia article on copyfraud.
Okay, now that you've done your research I point you to the second type of action mentioned as copyfraud: "Imposition by a copyright owner of restrictions beyond what the law allows."
Now, I can see it as being arguable whether this instance meets the definition of copyfraud. (Here's a link to the definition of arguable in case you need that, too.) Like so: "Did the publisher impose restrictions on fair use, or did it simply not mention something in refusal of a grant of license? If it just didn't mention it, does that actually rise to the level of what should be called copyfraud? I think that it doesn't, because <insert reasoning here>." See, that would be an argument that supports your position.
In fact, if I were in a discussion about this, I would probably argue that it's best, ceteris paribus, to leave copyfraud to more egregious and obvious cases, otherwise we risk diluting the word to an extent that could make people take allegations of copyfraud less seriously. Well, y'know, once it actually becomes used and taken seriously by more people than the well-read bunch that participates in discussion here. ;)
But lying? I call BS on that. Mike clearly believes this is an extra imposition of rights beyond those allowed by law And, let's just recall that as he mentioned, the details were intentionally left vague, so there could be even more information that was omitted that justifies the position. And, regardless, it is most certainly [here's that word again] arguable, even without further details, that this does indeeed constitutes copyfraud.
So, if you've got a beef with this being copyfraud, by all means... argue your position. But try to do it with premises and logic leading to a conclusion rather than ad hominem fallacies, a lack of (philosophical) charity, or anything resembling proper research on the topic which you are so quick to (anonymously) go on the attack over.
kthxbai
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Re: RE: but is it copyfraud
"those allowed by law And" -> "those allowed by law. And"
"indeeed" -> "indeed"
"constitutes copyfraud" -> "constitute copyfraud"
;)
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Re: RE: but is it copyfraud
And I say that as someone sometimes guilty of the same, so it's a note to myself as well.
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Re: Re: RE: but is it copyfraud
If you're even demanding a license to something that does not need a license in the first place, then it's likely copyfraud. Of course, because fair use is not cut-and-dry (requiring a judge's determination), its equally not as cut-and-dry that this is copyfraud.
But, copyfraud or not, one thing is clear: this absolutely did have a chilling effect. Not just in regards to the article itself, but in regards to being scared into silence about even talking about the discussion with the publisher.
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Re: Re: Re: RE: but is it copyfraud
Copyfraud for denying someone something they didn't have to ask you for? Come on. Why'd he even ask, then? Is that request-fraud, in that he duped the publisher into thinking it had the right to deny him the use? This is a ridiculous rabbit-hole.
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Re: Re: Re: Re: RE: but is it copyfraud
I think the confusion (being spread on purpose by a couple of the commenters above) is the false assertion that I am asserting that this is *legal fraud*. I am not. I used the term "copyfraud" specifically and carefully as it was defined by Jason Mazzone, the law professor who coined the term. It is an overclaiming of the rights provided by copyright. I am not saying it is an actionable thing under any sort of fraud statute. That's just a commenter making stuff up.
I am saying that it is an overclaiming of control via copyright, which has become commonly (within these circles) known as copyfraud thanks to Prof. Mazzone's definition.
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Re: Re: Re: Re: Re: RE: but is it copyfraud
(1) When you make up a pithy term that incorporates a legal term with a long history and clearly defined set of standards and you then inject that new term into a legal discussion, you can't really expect readers to separate the new from the old, can you? In fact, I'd question an assertion that using the "-fraud" suffix is for any reason other than to evoke the legal construct.
(2) Professor Mazzone's definition of "copyfraud" is startlingly close to the actual definition of a legal defense to infringement called "copyright misuse." But "copyright misuse" isn't as catchy, is it? That's because "fraud" carries such a heavy load of meaning that it's almost impossible not to want to use it. Except that, in this case, it's misleading, and I don't think accidentally so.
So am I against the term itself? No. I just think it should be used sparingly, and not as a buzzword of the month. For example, when a lawyer knows that his client holds no registration for a work but threatens a potential defendant with statutory damages should the alleged infringer not settle--that seems like somewhere "copyfraud" might apply well. But when words like "fraud" are just thrown around in a legal context, then, yes, the confusion you mention above results.
All this is a long way of pleading for measured rhetoric, especially when fighting the good fight.
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Re: Re: Re: Re: Re: Re: RE: but is it copyfraud
When you make up a pithy term that incorporates a legal term with a long history and clearly defined set of standards and you then inject that new term into a legal discussion
This is not a law blog. This is only tangentially a legal discussion.
You do realize "copyfraud" is not a legal term, right? It's not solely "copyright misuse."
As an example, it's closer to the term "plagiarism." In most cases, plagiarism is not against the law (unless it's also copyright infringement). Instead, it is considered dishonest and unethical, regardless of its status as legally actionable.
That's what "copyfraud" describes. A general term that describes overreach by copyright holders, regardless of whether it's legally actionable, because it's dishonest and unethical.
As Everyone who even remotely cares about copyright has heard the term before. It's even been used in The Register. I honestly don't know how you think Mike is "injecting" it into the conversation, especially since it's a perfect description for what the publishers are doing.
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Re: Re: Re: Re: Re: Re: Re: RE: but is it copyfraud
Incidentally, I am not advocating what the Register said about the situation. I am only showing that it is not merely a legal term.
(Side note: The Register really gets it wrong. For example, it says: "Now Creative Commons seeks expanded authority to administer the Public Domain, by issuing a 'Creative Commons Public Domain License,' as if it was a sublicense of its own invention. Creative Commons is trying to expand its licensing authority over not just newly created works, but all public domain works." What it fails to mention, of course, is that Creative Commons is not a licensing authority. It does not grant licenses to any CC material whatsoever, it provides licenses for others to use.)
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Re: Re: Re: Re: Re: Re: Re: Re: RE: but is it copyfraud
Right: and cookbooks are really about the science of heat and how it acts upon organic matter depending on the mixture. Look: this may be "techdirt," but it covers so many legal issues that it's impossible to disclaim the legal nature of many of its posts and comment threads. SOPA? PIPA? Fair Use? Come on. Saying that this is "only a tangentially legal discussion" is just a copout when you don't want to examine the aptness of what's being said about the law, or do any real research of your own.
If you remove the legal portions of this conversation, for example, you're left with "A professor really wanted to do something and a mean lady said no!" Is that the conversation we want to be having?
And, again, maybe if you want to stop someone from doing something, you might want to choose your words more carefully. Maybe a legal mechanism already exists that approximates what's being called "copyfraud," like "copyright misuse," and maybe, if you were less attached to rhetoric and posturing and more interested in results, you'd scale back on the rhetoric and try to figure out whether this actual legal defense could apply here.
It's like when you're discussing the relative merits of Affirmative Action, and there's someone in favor of extending it who, every time someone criticizes the program, screams "RACIST!" Yea, so that's not so effective. People against Affirmative Action don't wake up in the morning saying "Ahhhh--beautiful day. Wonder how I can be racist today?" And that publisher didn't wake up wondering how she could deny someone legitimate rights to use work in an academic setting--so calling her behavior "fraud," whether you mean that in a legal sense or not--does not move the needle in the direction I think you want.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: RE: but is it copyfraud
Not sure why you keep bringing this up. It's not *us* choosing the words. Copyfraud is widely used in these circles to mean exactly what I said it was: overclaiming what copyright allows.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: RE: but is it copyfraud
I'll ask you the same question: How is this overclaiming? If your friend copies one of the publisher's copyrighted images without a license, then the publisher has a prima facie case of copyright infringement against your friend. The fact that your friend may have a viable fair use defense is immaterial. Your argument for overclaiming presupposes some kind of duty on the publisher's part to consider your friend's defense before they say "no," but no such duty exists either ethically or legally. Copyright grants the right to exclude. Your friend asked for permission; they excluded. Where's the overclaiming? Tell me exactly what they did wrong, 'cause I don't see it.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: RE: but is it copyfraud
In Lenz v. Universal Music Corp. the court held that copyright owners must consider fair use before issuing DMCA takedown notices.
So, one absolutely does not need permission to use something in a fair use situation and the right's holder MUST consider fair use BEFORE taking legal action.
I would say such a duty DOES exist.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: RE: but is it copyfraud
Exactly. It's the same as when people ask me for a "license" to copy Techdirt posts. I tell them that we've put the content into the public domain, and while I can declare that, to issue a license on work that is public domain isn't really in my power since the material is unlicenseable. I consider this the same thing. It would be the duty of the copyright provider to at least acknowledge that fair use would dictate that they can make such a use of the work without a license.
Ignoring that there is fair use at all is a form of copyfraud.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: RE: but is it copyfraud
Ignoring that there is fair use at all is a form of copyfraud.
Copyright owners have no duty to acknowledge the existence of fair use when someone asks them for a license. This is nothing like Lenz (which is a dubious case to begin with) since the copyright owner here has not filed suit or a DMCA takedown notice--there is no affirmative act where you could argue good faith was needed. Someone asking a copyright owner for a license does not trigger a duty in the owner to consider fair use. That makes no sense, does not follow from Lenz, and frankly, is silly on its face.
You can point to nothing whatsoever that stands for the proposition that there is a "duty of the copyright provider to at least acknowledge that fair use would dictate that they can make such a use of the work without a license." If someone asks to use my property, I don't then have a duty to consider whatever affirmative defenses that would-be user might have should I decide not to give him permission and he use the property anyway. At least in Lenz you have an affirmative act of the copyright holder in sending the takedown notice. Here, you've only got the copyright owner being asked for a favor, and him saying "Get off my lawn!"
It is not "fraud" to refuse to license one's property, even if in theory the would-be licensee has a viable affirmative defense in a hypothetical suit for infringement. You're just trying to see "fraud" where none exists. Again, copyright means the right to exclude. The owner of the right has no duty whatsoever to entertain offers from would-be licensees. Furthermore, your analysis presupposes that this was unequivocally fair use, which, as the professor's article on copyfraud indicates, is usually rather equivocal.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: RE: but is it copyfraud
None of that is present here in the case with your friend asking for a license from a publisher. It defies credulity to argue that the holding in Lenz, which turned on a statute positively creating a duty, imposes some kind of duty on a publisher who is approached by a would-be licensor. You're really stretching this one past the breaking point with this silly Lenz argument.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: RE: but is it copyfraud
My comment was a direct response to the sentence I quoted which stated that "no such duty [to consider fair use] exists either ethically or legally".
It may or may not exist legally, but I do believe it exists ethically and a court has, at the very least, acknowledged that there is such a thing as a duty for consideration of fair use in copyright law.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: RE: but is it copyfraud
Look, man: I support the same things you do, generally speaking. I hate the locking up of creative works, inventions and words beyond the point of usefulness and reason. And I own Mazzone's book--bought it without ever bothering to view the free bits, simply because I wanted to support. What I'm arguing for here is a reasonable lexicon that avoids hyperbole. You know how we all laugh when certain people are called "pirates?" This is kind of the same thing, to me. I'm not even arguing against the term per se--just that it should be used sparingly and that this post does not present a situation where it's warranted. The publisher does not have an affirmative duty--the fact that you chose to tell people who ask for a license what you tell them is your choice, not a duty). And this is not one of Mazzone's paradigmatic Copyfraud of phony copyright notices or baseless lawsuits--both of which heartily deserve the label, in my opinion.
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Re: Re: Re: Re: Re: RE: but is it copyfraud
I am saying that it is an overclaiming of control via copyright, which has become commonly (within these circles) known as copyfraud thanks to Prof. Mazzone's definition.
There you go! Now you're CwF'ing!
I assumed "copyfraud" was a portmanteau of "copyright" and "fraud," i.e., fraud involving someone's copyright. I get that you're adopting Prof. M's meaning of the phrase, but, unless it's actually fraud, I think it's inherently misleading to call it "copyfraud." Kind of like how you don't want people to call infringement things like "piracy" and "theft." Unless it's actually fraud, don't call it copyfraud. And, no, the professor's good paper doesn't give you a license to deceive people. Unless you want to explain to people that copyfraud is not in fact actionable fraud, then you're misrepresenting the issue to your readers.
Looking at his paper, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244, p. 1028, Prof. M. says: "Copyfraud, as the term is used in this Article, refers to claiming falsely a copyright in a public domain work." That is not how you're using the word. What's the public domain got to do with the publisher denying your friend a license? Nothing. You are not using the word copyfraud correctly, as Prof. M. defined it.
Page 1047, the part about fair use, demonstrates your misunderstanding: "Copyfraud involves false ownership claims to the public domain, but the problem is not entirely removed from the behavior of legitimate copyright holders. Copyfraud is exacerbated when owners of valid copyrights interfere with lawful de minimis copying and fair use and thereby impose restrictions beyond what the law allows."
It's only copyfraud when claiming false ownership of the public domain. The practice of publishers imposing restrictions beyond what the law allows is not itself copyfraud, it is merely behavior that exacerbates copyfraud.
In other words, you're not using the word "copyfraud" to mean the same thing the professor is using it to mean. See the point? Either way, you're wrong about this being copyfraud, and you're wrong to lead people to believe it's fraud. It's neither.
And for fuck's sake, you don't have to be so dramatic. Somebody has a property right. Somebody tried to negotiate the use of that property. They didn't like the answer they got. Is it totally fair? No. Fair use is inherently wishy-washy, and rights holders, especially professional ones, are going to err on the side of fuck you. People are not super-generous with their property rights. They are in the business of licensing the rights to those works, not in giving them away.
While a work is under copyright, Mike, that's the way it works--by design. Your time-frame is that copyright must promote the progress at the maximum amount possible during all possible time-frames. That's not what the Constitution envisages. You can make anything look dumb if you look at it too closely, and with copyright, that's all you ever do.
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Re: Re: Re: Re: Re: Re: RE: but is it copyfraud
No, that is one of the times it is copyfraud.
Prof. Mazzone has written an entire book on the subject, one that was one of Techdirt's book club selections. He goes into a lot more detail in the book.
But, in case you don't feel like reading it, you can just look at the Wikipedia entry:
Emphasis added to show that Mazzone use the term copyfraud exactly how Mike is using it.
p.s. You're accusing Mike of being dramatic?
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Re: Re: Re: Re: Re: Re: Re: RE: but is it copyfraud
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Re: RE: but is it copyfraud
This is the key problem here. It's what Mike believes, not what the law specifically states.
Fair use is still a fairly narrow thing, and the permitted uses for protected content under fair use still are quite grey. While he feels absolutely certain that this case would have passed as fair use, it's not really clear. Of course, with the signed restraining order and the lack of information, we have to take him at his word. Since we know which side of the argument Mike is always going to be on, it's not hard to find his beliefs to be at least somewhat strained here.
I would have to say that Mike's assurances don't do it for me. While the claim is that "The use was for non-profit educational purpose", it's pretty marginal in the US for sure. After all, almost all learning establishments (beyond high school) are not free. Universities charge an insane amount of money for an education, so works used, especially at a privately owned and funded University might not be quite as "non profit" as he would like to suggest.
Further, if it was for use in a text book that might be published and sold to other schools, or sold to students, one has to wonder where the legal lines would be drawn.
You also have to look at what was going to get used. As an example, something beyond a short clip from a movie would be a real issue. Let's say the teacher intended to include all of the Star Wars movies as study material for a study of incest based relationships. Now, would that be fair use, or an abuse (using the material, not your sister!)?
Since Mike is light on details and long on rhetoric, it's hard to tell where this case stands. It's safe to say however that any claim of fair use that is close to the edges of the grey will sometimes have outcomes he doesn't like.
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Re: Re: RE: but is it copyfraud
Well, but you see, this isn't a "problem", it's the disagreement.
i.e., in a case of 'undeniable', let's say, fair use (e.g. where any reasonable person versed in fair-use would agree that the case was fair use), were a copyright holder to assert that the author of the 'undeniably' fair-use document was categorically *not allowed* to use that item without permission, then I think it is very arguable that the person making the false claim would be guilty of copyfraud.
And, if one is to admit that it could be considered copyfraud in cases of 'undeniable' fair-use, then one must also admit that whether or not any instance of such a case in 'less-than-undeniable' fair-use would rise to the level of copyfraud is simply a matter of degree. I personally even find it quite defensible (although it is not something I would likely bother to defend, as I think the term is best reserved for the clear cases) to say if the copyright holder maintained the categorical denial of rights even in 'potential' fair-use cases (as it is false to say that they would be "categorically not allowed" without the disclaimer "unless it is determined to be fair-use") or perhaps (although weaker) even a somewhat lesser denial of rights, even perhaps simply an omission ("we won't allow your use of this material" without a mention of the possibility of fair-use), or even the least-defensible case of an omission against something that's simply 'potentially' fair-use.
Now, you have several objections to calling this copyfraud; great, glad to see someone coming in to actually make a rational argument. And I actually do see your side of things, I think the difference in our opinion is simply is a difference in our perception of Mike's trustworthiness. I believe Mike when he says it's clear--for one thing he's got enough BS out there to report without having to make shit up, and for another I have seen a large amount of Mike's journalism against the grain (which, frankly beats the hell out of the MSM) and have not once seen any convincing evidence against the integrity of his work. And to reiterate, it's not like I think this is a convincin argument to anyone who does *not* find Mike to be trustworthy.
But back to your statement RE:"the key problem".
No, the key problem is not anything to do with Mike or what he believes in this circumstance, it's that (in general) people who are in disagreement with him refuse to stick to logic and facts and reasoning, and feel the need to constantly try to impugn and discredit him *without regard to the particular facts of the particular article or particular topic under discussion*. I don't care about people; I know of some very good arguments by some very repugnant people and I don't dismiss their arguments because of that.
That would be silly: I want to be right, even at the expense of having been wrong, and I certainly am not going to let my reasoned beliefs be tainted beyond what is supported by logic. So, believing Mike in this case as to the certainty of the fair-use case: legitimate, since, as a factual matter, what I have to go on is Mike's word (which I have a reasoned trust in). Trying to convince you in the same manner would not work: still, legitimate, since, as a factual matter, you only have Mike's word to go on (which you have a reasoned distrust in.)
But whether or not XYZ case of rights assertion rises to the level of Copyfraud: simply depends on the definition of Copyfraud and whether it is met. And whether or not this can be used as evidence of Mike's trustworthiness (e.g. the "Mike is a liar" routine): NOT! Since there is room in the definition (and I'm talking descriptive, not normative, here: you can argue all you want that copyfraud *should* or *shouldn't* mean XYZ is a case) for calling even very weak claims against fair-use 'copyfraud', it is not valid even through inductive reasoning to use this as even a small bit of evidence for or against Mike's trustworthiness.
That won't stop anyone, but that just drives home my point: the people bringing out the ad hominem attacks have *already* made up their minds, and while there's always the human psychological tendency towards confirmation bias, that does not make it valid reasoning.
And y'know what? Take out the stuff relating to people rather than reason, and I agree with 90% of what you say in this post; the one point I see to me made is that *legally*, to be considered non-profit educational use does not require that the university not be profitable. So, although you do make a good point, the point made is that that the common-sense meaning of non-profit doesn't necessarily align with the legal one; not that 'non-profit' in the sense Mike intended (or in the senses you refer to) would be incorrect.
Otherwise, you seem to me much on the same page as I; the lines are vague; Fair-use is a hard case regardless of how well you meet the tests; 'fraud' even when limited by the term 'Copyfraud' does seem to connote something very serious and it should be used carefully...
Copyfraud, to me, (now we're on to the normative) *should* indeed be reserved for, at the very least, "clear" cases of such, and cases where the harsh connotations of the word 'fraud' are undeniably appropriate to the actions. And despite me thinking that (from a non-normative viewpoint) calling certain denials of fair-use rights, given the definition of copyfraud, is reasonable and defensible, I also believe that it would be better to avoid the word altogether when paired with fair-use rationale; precisely to avoid having discussions like this one. Basically, any time it is used this way, it is just asking for the focus of the debate to be revolve around this huge tangential discussion of whether or not XYZ rises to the level. And to me, that is sooo counter-productive.
Personally, I think Mike nailed it with his last sentence and I think it would have been much more productive to talk about chilling effects and what can be inferred from what happened, rather than a huge name-calling session/troll feeding paralleling a non-decidable debate about the 'proper' definition of something.
Besides, I think it's much more to the point:
The chilling effect of copyright. Full stop. Isn't that the much stronger point? Copyright, itself has chilling effects.
So, there ya go: let's assume for a second that we accept a definition of copyfraud that *completely precludes* denying fair-use as a possible meaning. Given that assumption, then this would clearly *not be* a case of copyfraud. Doesn't that make the position even stronger?
I gotta run, so I'm going to leave this for now, but this is the real point: in cases like this, especially given the state of fair-use in the U.S.(e.g. the lack of that so-called 'bright line' and therefore the likelihood that a small-time rights-holder would be crushed in defending against a lawsuit regardless of the 'theoretical' outcome, the imbalance arising from the lack of consequences to those who place false take-downs etc. etc.) it's simply the copyright laws themselves that cause unintended effects, e.g. the "chilling" effects spoken of here.
And this is just a small confirmation of such, I don't see why it's such a big deal; there have been plenty of other stories here on Techdirt dealing with the same things; I know "no link, didn't happen", but I have to run, so I'll trust that another Techdirtian (I remind everyone that *that's mine*!!! pronounced like "Andalusian" or "Martian"... :P And don't worry I granted everyone a perpetual worldwide etc. license a while back you can search my posts. :D CC-BY. just kiddin'!!!)
I would have written a shorter post but I did not have the time.. --with apologies to Blaise Pascal. (Probably)
Eh and no time to proofread either, so I'm sure this is riddled with typos or other errors; I'm more confident in the logic than the presentation. :P :) ;) :D <3
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Without a doubt? If he had no doubt, why give in so easily?
Did you perhaps ask the rights holder for an opinion?
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This sounds like Getty Images to me.
It is interesting you brought up the "fair use" argument. That is something we have not considered before at ExtortionLetterInfo and will look into.
It sounds like to me your researcher friend didn't look much further into this than he should and he caved in prematurely. Thanks for your article.
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I'm confused
Did your friend publish the research paper and then after the fact ask for permission to use the image?
Did he ask for permission first, was turned down, and then used the image anyway?
Did he ask for permission, was turned down, and then didn't use the image? In that case there shouldn't be any problem.
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Re: I'm confused
I'm guessing this is what happened.
In that case there shouldn't be any problem.
Well, Suzanne, this is the problem:
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. [...] And that's the classic tale of a chilling effect of copyright law. Scaring people into not speaking up or not presenting their story.
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Re: Re: I'm confused
I thought Mike was saying that his friend wouldn't let him discuss how everything evolved in detail. But if his friend didn't use the image, what is there to be afraid of? Why not say what company vetoed the image if the image wasn't used? That's why I am confused. If there was no copyright breach, then give us more background.
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Sounds like
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Re:
Waaa, Mike won't come out to play.. Waaaa I'm gunna stomp my feet, Waaaa
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What kind of a man won't even stand behind his own words? Mike Masnick, snake oil salesman.
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If you can look below this post you will see that Mike has granted your fantasies and responded to all that you desire.
Now don't get like that, yes yes.. That warm and tingling feeling in your pants at the moment is natural though also highly disturbing.
*pats you on your pointy little head and sends you home to your mummy*
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Well let's see. You spent the day being a loud asshole that nobody wants to talk to in the comment thread of a blog you hate. Mike spent the day in a tonne of meetings and events and, as far as i know, hasn't even had a chance to look at the comments yet.
Let's take a poll: who should be taken more seriously?
(i'll understand if you want to withdraw your comments now)
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A few points
1. In this case, the company he contacted *absolutely* holds the copyright. It is *not* a case where the copyright is held by a third party. The work was created specifically for the company.
2. I believe that it is copyfraud because the company has told him that he cannot make use of the image -- when the reality is that he has a fair use right to make use of the image. He was not asking "for a license." He told them how he planned to use the image -- and they told him not to. Telling someone they cannot do something, despite copyright law saying they can is copyfraud. It's an over-claiming of rights under copyright law.
3. The paper was published in the publication who originally requested it *without* the image. However, my friend put up a copy on his own website *with* the image, and is hoping that the company never notices.
4. The idea that using an image is not fair use is hogwash. There have been plenty of cases that hold that using an entire image can be fair use, given the context. This is one where the facts match up nicely with the case law in showing that this is fair use.
I think that's it. Other than that, the only thing I will say is that there are ways to have reasonable discussions where people can disagree -- and there have been many reasonable comments on this thread, often from people who disagree with my analysis. There has also been someone who apparently feels that ad hominem attacks are a legitimate form of argument. I would suggest that, generally speaking, such methods of argument are not particularly effective and do little to advance an argument.
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Re: A few points
I appreciate your comments here Mike. However, I think this is the area where you are having the problem. While you may feel that this case lines up nicely with other cases, let's be fair here (about fair use): It's a grey area that isn't a 100% slam dunk in many situations.
Fair use isn't an absolute, set in stone sort of thing. It's a judgement call, that takes in all the actual usages (and even some of the potential uses) of the resulting work, the context under which the copyright work is used, etc. There is no absolute slam dunk here.
As for the ad hom attacks, you might want to consider that the absolute "I know better than the courts and the lawyers and the people involved" attitude might be something that is getting you some flack. You may want to try to turn your attitude and approach down a notch, say from "absolute god of IP" to "well informed mere mortal". That will probably get you the better results you are looking for. Try accepting for a second that the opposing view MAY have at least a small amount of merit, and they may in fact do the same for yours.
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Re: Re: A few points
Too tired. Time for bed I think (1am here)
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Re: A few points
Now you're changing the facts. In the article, you did not say that they affirmatively told him he cannot use the image. You said that he approached them, asking them for permission to use the image (which is exactly the same thing as asking for a license, by the way), and they said no. Let's assume these new facts (and you and I both know you'll just keep adding "facts" as needed to better your argument) are true. It's not fraud to refuse to give someone permission to use your copyrighted work. Even if that person has a great argument that their use is fair, the copyright owner has no duty whatsoever to license that use, and it is absolutely not fraud to refuse to do so.
You can find no case law backing up your argument because none exists. I can find tons of case law to prove my points. I'd love to go through the case law on fraud and get into all the nuances, but you and I both know that now that you've made your appearance in this thread, you'll not come back and debate any of the nuances. You're simply incapable of making legitimate legal arguments. If this guy went into court claiming it was fraud to refuse to license to him, he'd be looking at getting sanctioned.
The fact is, you are making a ridiculous claim--one that even your supporters think is baseless--and you'll continue to make the claim, even after people have pointed out that it's false. Back up the claim and win the debate, or else admit that you got it wrong and don't repeat the lie. As it is, we ALL know that you'll never admit that you're wrong, and you'll continue to call a refusal to license fraud, even though it absolutely is not. In other words, you're an incorrigible joke. Ad hominem? You betcha. You deserve to be attacked at a very personal level, Mike, because you're such a disgusting monster of a human being who only knows how to manipulate and lie to his readers. Prove me wrong. Prove this is fraud.
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Re: Re: A few points
Go and take this to a hundred other dedicated IP law blogs and debate case law ad infinitum there.. if that floats your boat. Though even there they might think.. yep another law student or Graduate who has just been capped and is bored stupid and hasn't gotten the veil of cynicism yet that happens to us all. (One of the reasons why I don't practice.. I had it before I even did my LLB)
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Re: Re: Re: A few points
And, good grief, just look at the lightweights he has writing articles about IP law. Just within the last week you've got Zach tackling the subject of whether selling an UltraViolet redemption code is infringement. And you've got Leigh tackling a trademark case (applying the Techdirt-sanctioned "moron in a hurry test"). Neither one of those boys understands the law sufficiently to have anything intelligent to say on those matters.
Mike, if you're going to say idiotic things, and if you're going to have idiots do your bidding, then don't act all surprised when you get called out for being an idiot.
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Re: Re: Re: Re: A few points
No, you give us a break. It's clear whatever you believe in isn't grounded in reality.
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Re: Re: A few points
"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:
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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Re: Re: Re: A few points
Further, most of your stuff comes down to "Mike said it, so it must be true". That really doesn't add up to much. I get that from RD (when he's off his meds), but he usually can do it in a couple of capital letter laden paragraphs.
I would suggest you crank it back, re-examine your post, and come up with a slightly more compact version that doesn't depend on the basic concept of "Mike said". That doesn't really prove anything, other than perhaps that you are a loyal reader.
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the company has told him that he cannot make use of the image -- when the reality is that he has a fair use right to make use of the image. He was not asking "for a license." He told them how he planned to use the image -- and they told him not to.
Then this is in all likelihood as I said above in another comment extrinsic fraud
Which can be actionable, though expensive, and lot harder to prove.. though the implied intent to deny rights which the copyright holder has knowledge about seems to be there.
Whether Fair Use is an absolute or not isn't really the issue in all these debates, it's whether there has been a type of fraudulent (misleading and deceptive) behaviour and based on Mike's latest comment and original article there has been.
Ask two lawyers a question and get three different answers is what is really happening here, and in IP law those answers can expand to "how long is a piece of string".
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Re:
George Zimmerman shot and killed Trayvon Martin. Zimmerman claims it was in self-defense, which is a defense against a murder charge. Did the police wrongfully arrest and detain Zimmerman because they failed to thoroughly investigate the merits of his defense before arresting him? Is the prosecutor committing fraud on the court by prosecuting a case against him without determining the merits of Zimmerman's defense completely apart from any work the defense attorney(s) may or may not do?
This isn't an example of lawyers being lawyers. It's one of folks just becoming so enamoured of a powerful word and wanting to fling it around. Flinging weakens the word. Use responsibly.
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Though here the LEO's arrest based on probably cause and then build the foundation of evidence and based on their evidence with either Interview (if undertaken), witness affidavits, physical evidence, etc their is enough in their experience to warrant a charge then the defendant is charged.
The prosecutor, whether Police for local courts or Govt (DPP) for District/Supreme courts (silks/barristers) will then go through fact sheets and create a full brief that has to look at whether any defenses have been raised or likely to be raised and look at basis on whetehr they are likely to prevail or not and then follow through with trial steps. BUt that's Criminal, we are talking about the tort of fraud here.
Actually we are really talking about how laypeople see the term fraud, and not the real legal definition.. Like neg, or larceny/theft they know it when they see it, though they don't understand that is the only element to consider. Based on the non legal term of CopyFraud (which your statutes don't even have in.. nor our Acts.. though we have something close - s202 CA1968 & s202a CA1968 for DRM-Fraud [never used yet])
On TD I try to keep it to concepts that people would understand, They are not lawyers and it isn't a law blog (no matter that some AC's want to make it into one).
I understand people like to throw legal terms around and they mean different things than what they think they mean. I don't like the the term CopyFraud myself since it basically means nothing and everything dependant on your viewpoint.
Oh and to your question on "Is the prosecutor committing fraud on the court by prosecuting a case against him without determining the merits of Zimmerman's" ... I know a lot of Defence solicitors would be nodding their heads frantically, and wish the immunity was not there to stop this :)
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A "no, we don't agree to that use" seems such a far cry from fraud it's just silly. And at this point, I'm not really going to go along with Fraud vs. CopyFraud. If that's the term that's been chosen in place of "copyright misuse" but to mean the same thing, I think it's a rhetorical mistake--overplaying the hand.
Ok. I've trotted out George Zimmerman and Trayvon Martin. I think that's the marker that my wits are at their ends. This has been a fun one, though. Thanks to everyone who's made it so.
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When warning others to stay away from your property, puffery is allowed. For example, I can put up signs all around my property that say "Trespassers Will Be Shot On Sight! Stay Away!" Even though I don't actually have the right to shoot all trespassers on sight, it is neither immoral nor illegal for me to put up the signs indicating otherwise. I'm under no duty to inform others as to the true extent of their rights in my property.
The same holds true with the publisher in Mike's story. They have no duty to tell anyone who asks for a license anything about the existence of fair use. It's ridiculous and baseless for Mike to pretend like rights holders have a duty to acknowledge the existence of fair use. He's just making that duty up with nothing to back it up, all so he call this copyfraud (and even though he admits that it's not actually fraud).
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Having achieved his purpose, the article's author demurred when Mike Masnick proposed to feature the dispute in a web article. Obviously over-careful.
Now Mike is being overly-nice to his friend by withholding the details we would need for a (serious) evaluation. Thus obstructing the free flow of information, and we get this goopy article.
Is there a story? Hard to tell.
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Then let the courts decide if it was fair use or not, since only the court can make that decision, not any of us. So you can claim until you are blue in the face that it is absolutely fair use, until that court case, what you are spewing is meaningless drivel and misleading at best…
They as rights holders have the right to say no, you cannot use our picture. That isn’t fraud; it’s a disingenuous stretch to claim that, they didn't try to stop him from publishing his story. They let him know they will defend their IP; there is nothing wrong with that.
This crap story is filled with CNN info, which is basically something has happened and here is our made up bullshit opinion from sources that we can’t name because they are not allowed to talk about it….
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You only prove fair use *after* an expensive trial. This is an individual who was subject to a major lawsuit once before, and has no desire to go through that again, no matter how strong his case (and he won that last case).
This crap story is filled with CNN info, which is basically something has happened and here is our made up bullshit opinion from sources that we can’t name because they are not allowed to talk about it….
Ok. Whatever it takes you to feel good about yourself. I know the story. What I wrote is entirely accurate.
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