Copyright As Censorship: University Threatens Own Faculty With Copyright Infringement For Campus Survey

from the institutes-of-higher-learning dept

Thu, Apr 4th 2013 7:50am — Mike Masnick

This story is incredible. Saint Louis University is threatening a faculty member with copyright infringement claims for his decision to take a survey of his colleagues. It appears that the faculty and the administration have been battling with each other recently, leading to a "no confidence" vote by students and faculty of the University provost. In response, the Board of Trustees sent around a "climate survey" to faculty, staff and students -- but some had complained that the questions were not useful and only asked one question about the leadership of that provost, Lawrence Biondi. In response, some of the faculty designed their own "supplemental survey" for other faculty members that included more questions, specifically about Biondi's relationship with the faculty itself.

The Saint Louis University chapter of the American Association of University Professors responded to the board's surveys by attempting to devise its own "AAUP Supplemental Survey" for faculty members that would include specific questions about Father Biondi. Where the university's survey for faculty members asked how much they agreed or disagreed with the statement "The university appreciates the contributions of the faculty," the AAUP survey would, for example, ask how much respondents agreed with the statement "The president appears to respect and value the faculty."

However, the University is having none of this and has threatened the AAUP's President with claims of copyright infringement.

A St. Louis Post-Dispatch article on March 27 mentioned the AAUP chapter's plan for a survey. The next day the chapter's president, Steven G. Harris, a professor of mathematics and computer science, received a letter from William R. Kauffman, the university's vice president and general counsel, telling him that the university's new surveys are copyrighted and any use of them would violate federal law.

Mr. Kauffman's letter said that anything derived from the university's surveys would likewise be regarded as a violation of the university's rights. "Any infringement," the letter said, "will be addressed by the university and could result in legal action" in which the university could seek injunctive relief, damages, and the recovery of any legal fees.

This is incredible on so many levels, none of which makes Saint Louis University look good. First, this is a clear case of using copyright to censor, rather than for any legitimate purpose of copyright (it's like the University needed the incentives of copyright to develop this survey). Second, the "supplemental survey" is clearly asking different questions, not the same questions. Third, it's difficult to see how basic survey questions would have enough creative element to qualify for copyright protection in the first place, and even in the rare cases where they did, it would be likely that the protection would be quite thin, and hardly likely to be infringed upon by a separate and different set of questions.

But, most importantly, if the University board was looking to suggest that the faculty was happy with the administration, it would appear that threatening a bogus copyright infringement lawsuit demonstrates the exact opposite message. Truly incredible.

Unfortunately, the chilling effects of the threat may be working in silencing the survey attempt:

"The issue," he said, "is not whether the university will prevail in such a suit but whether I would be forced to run up enormous legal bills to defend against such a suit."

Of course, given that the likely point of the supplemental survey was to highlight problems between the administration and the faculty, the threat of the lawsuit seems to have accomplished that goal already.

The Chronicle of Higher Education also notes that Saint Louis University has sued another professor over questionable copyright claims before, and even though that professor won, he still racked up $10,000 in legal bills. And yet, the maximalists tell us, there are no examples of copyright being used to stifle free speech...

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Filed Under: campus survey, censorship, copyright, threats
Companies: saint louis university

155 Comments

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Arsik Vek (profile), 4 Apr 2013 @ 5:58am

I dunno, you've gotta be pretty creative to ask the questions in such a way as to get the answer you want, instead of the truth.
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rw (profile), 4 Apr 2013 @ 6:20am

Time for a Kickstarter project to offset legal fees. Then see who backs down.
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- gorehound (profile), 4 Apr 2013 @ 7:54am
  
  Re:
  Good Idea for a use of kickstarter.
  Let the whole world Donate a buck or two here and there and even that would add up to huge amounts that can eneable someone to really fight back against rich pricks and rich corporations and schools, ETC
  [ link to this | view in chronology ]
  - Anonymous Coward, 4 Apr 2013 @ 7:58am
    
    Re: Re:
    The problem with this method of kickstarting legal funds is that it can be applied in the opposite direction. What's to stop the university from also launching a Kickstarter and getting huge donations from maximalists who want to see the court rule favorably for their own speech-stifling copyright abuse?
    [ link to this | view in chronology ]
    - Digdug (profile), 4 Apr 2013 @ 9:49am
      
      Re: Re: Re:
      Nothing stops them from doing that now, but it doesn't necessarily mean that one would lead to the other. The maximalists already have well established finances anyway if their lobbying is any indication, why would they bother with kickstarter?
      [ link to this | view in chronology ]
      - Anonymous Coward, 4 Apr 2013 @ 10:35am
        
        Re: Re: Re: Re:
        Because The maximalists use other peoples money for their projects whenever possible.
        [ link to this | view in chronology ]
    - Anonymous Coward, 4 Apr 2013 @ 10:47am
      
      Re: Re: Re:
      Because in a world where people have infinite funds, it becomes a battle of who's right and who's wrong.
      
      The university is flat out wrong here, so they wouldn't waste their time with what is obviously a false claim if they thought they could actually defend themselves in court.
      [ link to this | view in chronology ]
    - Anonymous Coward, 5 Apr 2013 @ 6:05am
      
      Re: Re: Re:
      Here's why the University can't take its case to Kickstarter: they look like a bully, their case doesn't have that broad appeal to a wide public willing to contribute a small amount each.
      [ link to this | view in chronology ]
  - Anonymous Coward, 4 Apr 2013 @ 4:45pm
    
    Re: Re:
    I think a better use would be a kickstarter project for a huge toilet bowl, with the goal being to see how much money can be flushed down it at once....
    
    I'm sure it would be just as useful as throwing more money at the lawyers and probably a lot more fun...
    
    Think those spinning coin donation buckets, but on a massive 100 foot bowl scale...
    [ link to this | view in chronology ]
- Anonymous Coward, 4 Apr 2013 @ 1:20pm
  
  Re:
  It'd be interesting whether you could do this, or whether it would violate Kickstarter's Terms of Use, as you cannot start a project for a charity fund.
  [ link to this | view in chronology ]
Anonymous Coward, 4 Apr 2013 @ 8:06am

Hey Mike, I have a serious question. Why is it that you only focus on the negatives of copyright? Do you think that there should be any copyright? If so, please explain.
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- Anonymous Coward, 4 Apr 2013 @ 8:13am
  
  Re:
  I'll give you my perspective.
  
  I'm a sysadmin. My systems produce hundreds of thousands of lines of logs every day.
  
  Most of them say that everything is just dandy. Some raise some warning about something that potentially could cause problems (but which I have under control enough not to care). And then you have the odd one out that will say "ERROR: Something blew up".
  
  Guess which ones I have set to trigger an alarm...
  [ link to this | view in chronology ]
  - PaulT (profile), 4 Apr 2013 @ 8:33am
    
    Re: Re:
    You miss his point. What he actually means is "even I can't defend this, but I can't finally admit that copyright does indeed have issues. But I can't defend this crap, so I have to try and turn my response into an attack instead". See also: his response to Josh below.
    
    While your response is correct, and his question is like saying "why does the news only cover the people who were robbed and murdered in broad daylight today instead of those who weren't?", he's been at it far too long for any intellectual honesty to creep into his shtick.
    [ link to this | view in chronology ]
- Anonymous Coward, 4 Apr 2013 @ 8:13am
  
  Re:
  Hi AJ.
  
  Because something that's working is something that shouldn't raise issues.
  
  Nobody high up compliments you for doing your job properly, the gears turn, the wheels spin, and everything operates smoothly.
  
  It's when things go WRONG that people take notice, complain, and start bringing down the hammers and pitchforks.
  
  If copyright was being positive, you'd see almost no complaints, but you wouldn't see many positives. That's just the way the world works.
  [ link to this | view in chronology ]
  - Anonymous Coward, 4 Apr 2013 @ 8:22am
    
    Re: Re:
    These are simple, straightforward questions. Mike can speak for himself. I seriously would like to know what his answer is, not yours.
    [ link to this | view in chronology ]
    - Anonymous Coward, 4 Apr 2013 @ 8:29am
      
      Re: Re: Re:
      If you don't want other people's perspective, don't ask your question in a public forum.
      [ link to this | view in chronology ]
      - Anonymous Coward, 4 Apr 2013 @ 8:53am
        
        Re: Re: Re: Re:
        If you don't want other people's perspective, don't ask your question in a public forum.
        
        This is Mike's blog, and I'm asking Mike a question in Mike's comments. I WANT to have this discussion with Mike in public where everyone can see what he says. Mike clearly doesn't. And lest you pull out the excuse that he won't discuss these things because it's me asking, ask him yourself right here in these very comments. I doubt he'll answer the questions no matter who asks them. Now why is he so scared to discuss his beliefs? Ask yourself that.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 8:57am
        
        Re: Re: Re: Re: Re:
        Read below.
        
        It might help if you presented answerable questions instead of leading ones.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 9:01am
        
        Re: Re: Re: Re: Re: Re:
        He chooses to only focus on the negatives, never saying anything positive about copyright ever. I want to know why. It's not a leading question.
        
        He tells us his opinions about copyright all the time, yet he refuses to tell us whether he thinks there should be any copyright. It's not a leading question.
        
        I'm trying to have a substantive discussion on the merits. Ask yourself why he refuses. Ask him these questions yourself. You won't get an answer. Why is he so incredibly opinionated about copyright but unable to discuss his beliefs about it directly? What is he hiding?
        [ link to this | view in chronology ]
        
        Bengie, 4 Apr 2013 @ 10:28am
        
        Re: Re: Re: Re: Re: Re: Re:
        " yet he refuses to tell us whether he thinks there should be any copyright"
        
        He has answered this in the past several times. These repeat questions are just from lazy readers or trolls, so why would he want to answer?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 8:58am
        
        Re: Re: Re: Re: Re:
        You WANT?
        
        And who the F are you to demand this?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 9:02am
        
        Re: Re: Re: Re: Re: Re:
        I'm AJ. Who are you?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 9:34am
        
        Re: Re: Re: Re: Re: Re: Re:
        And there's your problem.
        
        The answer to why Mike doesn't respond to you is right there for all of us to see.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 9:44am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        AJ does stand for Asshole Jerk.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 10:40pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        I always thought it stood for "a jackass"...
        [ link to this | view in chronology ]
        
        nasch (profile), 4 Apr 2013 @ 1:26pm
        
        Re: Re: Re: Re: Re:
        This is Mike's blog, and I'm asking Mike a question in Mike's comments.
        
        This is the appropriate place to ask, but it's not appropriate to complain when someone else responds. You can have your conversation in public or in private, but not both.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 3:32pm
        
        Re: Re: Re: Re: Re:
        Why won't you debate me RAWR.
        
        Explain why you believe that every use of Copyright to censor unpopular speech (and by unpopular, I mean critical of the establishment) is what the framers had in mind when they wrote it?
        
        Why every abuse of Copyright is just acceptable collateral damage, and should not be reported on?
        
        Why nothing produced should every enter the Public Domain?
        
        Why there should be no Fair Use?
        [ link to this | view in chronology ]
    - Anonymous Coward, 4 Apr 2013 @ 8:32am
      
      Re: Re: Re:
      The topic of the post is copyright as a censorship trojan horse. How much do you support these "collaterals" ?
      
      Otherwise, I would seriously want to know who your sponsors and what your true motives are to persistently and systematically try to discredit the authors of this blog.
      [ link to this | view in chronology ]
      - Anonymous Coward, 4 Apr 2013 @ 9:04am
        
        Re: Re: Re: Re:
        This story to me is about people who are being abusive. All laws can be abused. People can be censored in many ways. I can make a bullshit copyright claim just like I can pick up the phone and have a SWAT team sent to someone's house. Are SWAT teams a bad thing because they can be abused? I don't see it.
        [ link to this | view in chronology ]
        
        Rikuo (profile), 4 Apr 2013 @ 9:16am
        
        Re: Re: Re: Re: Re:
        Bad analogy. Yes, you could theoretically send a SWAT team...once. Then, once they find out they were used, they'll be all over your ass (well, apart from when they're used by copyright maximilists...is that what you're admitting you are?)
        However, with the many, many, many, many cases of copyright abuse talked about here on Techdirt, there is rarely any punishment for it. Which is one of the biggest problems we Techdirtians have with copyright, the fact that abuse is rarely punished.
        [ link to this | view in chronology ]
    - Keroberos (profile), 4 Apr 2013 @ 8:36am
      
      Re: Re: Re:
      He's given his answer. You just have to read all that he's written on the subject (might take you a while).
      [ link to this | view in chronology ]
      - Anonymous Coward, 4 Apr 2013 @ 9:05am
        
        Re: Re: Re: Re:
        I've been reading this blog for three years, and I've been trying to get Mike to discuss his personal beliefs on the merits. Funny how he's not able to express an opinion when he's an extremely opinionated person. What is he hiding? Why is he so scared to just answer straight questions with straight answers?
        [ link to this | view in chronology ]
        
        Rikuo (profile), 4 Apr 2013 @ 9:17am
        
        Re: Re: Re: Re: Re:
        And if you've been pestering someone to talk to you for three years and they don't respond, then leave them alone, because you're only wasting your time.
        
        Seriously. Why is it you have yet to realise this? If Mike was going to respond, he would've done so three years ago.
        
        So, tell us. Why are you deliberately wasting your own time here?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 3:42pm
        
        Re: Re: Re: Re: Re:
        Mike, just like the rest of us, think you are a waste of time and nothing but a paid shill trying to further your own agenda on Mike's site.
        
        He has answered you so many times, yet you ask the same questions over and over, and then wonder why he will not continue to tell you the same thing repeatedly.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Apr 2013 @ 7:33am
        
        Re: Re: Re: Re: Re: Re:
        He has answered you so many times, yet you ask the same questions over and over, and then wonder why he will not continue to tell you the same thing repeatedly.
        
        LOL! Mike has never answered the question. He makes excuses and runs away every time. Why's he so scared of talking about his true beliefs? Hmmmm... It's not hard to figure out. Mike thinks that artists and authors should have no exclusive rights whatsoever, but he's too ashamed of his own beliefs to admit it. The funny thing is, I don't care that he believes that. I care that he won't be honest about it. It's the dishonesty that keeps me coming back to challenge him. I'll say it again: I freaking dare Mike to have an honest discussion about his views (and mine) about copyright. He won't do it--ever. He's too ashamed of himself. It's hilarious.
        [ link to this | view in chronology ]
    - Anonymous Coward, 4 Apr 2013 @ 8:46am
      
      Re: Re: Re:
      Your question is also a fake question.
      
      He's stated he can't answer it, and you miscontrue it as a "fundamental question" when in fact it's anything but.
      
      He's stated he's researching the issue, and the only way he could answer the question over whether there should or should not be copywrite is if he already has EVERY ANSWER.
      
      Asking him to confirm that he believes there should or should not be copywrite is just asking him to say he has a confirmation bias.
      
      So go away.
      [ link to this | view in chronology ]
      - Anonymous Coward, 4 Apr 2013 @ 8:59am
        
        Re: Re: Re: Re:
        He's stated he can't answer it
        
        As to my second question, yes, he's pretended like he is completely unable to have any opinion on it whatsoever because he doesn't have 100% perfect information. It's a sad excuse. Every single day Mike tells us his opinions, and he never has perfect evidence handed down from God. I just want his OPINION, based on what he does know and think. This isn't hard. Ask yourself why he has a blog where he expresses MANY MANY views about copyright, but then he can't discuss whether he thinks we should even have it. What is he hiding?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 9:03am
        
        Re: Re: Re: Re: Re:
        Thanks for not reading my whole comment, I appreciate it.
        
        He can't answer it, because he doesn't know.
        
        He doesn't know, because he's still researching it.
        
        He believes copywrite as it is NOW has gone too far, but that doesn't mean he knows if it should be abolished or not.
        
        Again, you are asking him to say he has a confirmation bias, it's a leading question, not a fundamental one. It has nothing to do with hiding anything.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 9:07am
        
        Re: Re: Re: Re: Re: Re:
        He can't answer it, because he doesn't know.
        
        He doesn't know, because he's still researching it.
        
        He's been researching and thinking about copyright more than probably 99.9% of the people on earth. That just proves he's lying when he says he's incapable of having any opinion whatsoever. This blog proves that he is quite capable of forming opinions. He's got more opinions on copyright than any person I know. It's just silly excuses. I want to discuss the merits, based on the best guesses we can make. Surely he can oblige if only he weren't running away like a coward.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 9:09am
        
        Re: Re: Re: Re: Re: Re: Re:
        He has his opinion.
        
        Copywrite has gone too far.
        
        However the question of ABOLISHMENT of copywrite is much more difficult and requires much more in depth work.
        
        And again, the problem with your question is it'a fake question, it's a LEADING question.
        
        You are trying to get him to frame the final answer to his research before he's actually come to a final evidence-backed conclusion.
        
        You want to discuss MERITS... based ON GUESSES. Using FAKE questions.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 9:05am
        
        Re: Re: Re: Re: Re:
        Did you know they've never actually set foot on the moon too, and that it's a giant lie orchestrated with footage from Kubrik ?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 9:08am
        
        Re: Re: Re: Re: Re: Re:
        Were the Mythbusters in on it too? 'Cause they "busted" that myth. :)
        [ link to this | view in chronology ]
        
        Rikuo (profile), 4 Apr 2013 @ 9:20am
        
        Re: Re: Re: Re: Re: Re:
        Here, you might want to watch this
        
        https://www.youtube.com/watch?v=sGXTF6bs1IU
        [ link to this | view in chronology ]
        
        sorrykb (profile), 4 Apr 2013 @ 11:05am
        
        Re: Re: Re: Re: Re: Re:
        Did you know they've never actually set foot on the moon too, and that it's a giant lie orchestrated with footage from Kubrik ?
        
        I'd post the footage, but it's copyrighted.
        [ link to this | view in chronology ]
    - Tim Griffiths (profile), 4 Apr 2013 @ 8:49am
      
      Re: Re: Re:
      Then you should e-mail Mike directly instead of publicly posting the question in a forum that can be publicly commented on. That of course would mean Mike's answer wouldn't be public, which I guess is what you actually want because you think you've found something to trip him up and want every one to see what a clever little boy you are.
      [ link to this | view in chronology ]
      - Anonymous Coward, 4 Apr 2013 @ 8:55am
        
        Re: Re: Re: Re:
        Then you should e-mail Mike directly instead of publicly posting the question in a forum that can be publicly commented on.
        
        Comment away. I can't stop you/don't care. I want Mike's answer, and I want his answer in public.
        [ link to this | view in chronology ]
        
        Tim Griffiths (profile), 4 Apr 2013 @ 9:00am
        
        Re: Re: Re: Re: Re:
        Yet you take the time to respond to the comments about how much you don't care about them. Funny that.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 9:09am
        
        Re: Re: Re: Re: Re: Re:
        You got me there, Tim. I'm bored, and I know for a fact that Mike is too scared to have an honest discussion on the merits.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 9:26am
        
        Re: Re: Re: Re: Re: Re: Re:
        There are no merits, in my opinion, to copyright or patent laws as they stand.
        
        There are simple ways of fixing this - for example:
        
        1) These things are non-transferable and end with the actual creator.
        2) 3+5 years, with one notable exception - if the creator of a work dies, then the monopoly lasts two years after their death.
        3) Works with no traceable creator enter the public domain automatically.
        4) These 'rights' to be OPT-IN and REGISTERED though a basic database which is KEPT OFF THE GRID.
        [ link to this | view in chronology ]
        
        Rikuo (profile), 4 Apr 2013 @ 9:37am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        "These things are non-transferable and end with the actual creator."
        
        If it ends with the actual creator, then why do you also say the monopoly should last two years after their death? Who does it get transfered to then?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 10:17am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Which is the only exception to #1 above. And with that, it must include a certificate of death, for example, to start that clock. IF the creator dies within the first year of the work's registration, then the clock runs out before the three years are up.
        
        I'm not heartless, you know. Just soulless.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 9:49am
        
        Re: Re: Re: Re: Re: Re: Re:
        In other words you'd rather spend time typing naughty things on your wife's laptop. Says it all really.
        [ link to this | view in chronology ]
        
        JMT (profile), 4 Apr 2013 @ 4:30pm
        
        Re: Re: Re: Re: Re: Re: Re:
        "You got me there, Tim. I'm bored..."
        
        And there we have it. Mike's got more important things to do, and you don't.
        [ link to this | view in chronology ]
- Anonymous Coward, 4 Apr 2013 @ 8:17am
  
  Re:
  Off-topic
  [ link to this | view in chronology ]
  - Zakida Paul (profile), 4 Apr 2013 @ 8:19am
    
    Re: Re:
    That's being polite.
    
    I was thinking 'idiot'. My lack of diplomacy means I will probably never get promoted.
    [ link to this | view in chronology ]
- Josh in CharlotteNC (profile), 4 Apr 2013 @ 8:23am
  
  Re:
  Hi AJ. As expected, you're trying to make this about Mike instead of the subject at hand. While your comment is an improvement from the pointless and boring insult-slinging, attacking the author instead of the topic is still an ad-hom.
  
  only focus on the negatives of copyright
  
  The premise of your question is that there are positives to copyright that could be highlighted. I don't accept that, although I am open to evidence that shows it. Provide some and your comment won't have been useless if it results in a intersting discussion.
  [ link to this | view in chronology ]
  - Anonymous Coward, 4 Apr 2013 @ 8:25am
    
    Re: Re:
    Tell me this, Josh. Do you infringe?
    [ link to this | view in chronology ]
    - Keroberos (profile), 4 Apr 2013 @ 8:33am
      
      Re: Re: Re:
      How does this matter? Everyone infringes to a lesser or greater extent, copyright law has been written to make sure of that.
      [ link to this | view in chronology ]
      - Anonymous Coward, 4 Apr 2013 @ 8:56am
        
        Re: Re: Re: Re:
        Let's let Josh answer the question. He says that there's NOTHING positive about copyright. I'm curious if he needs the copyrighted stuff so bad that he's willing to violate other people's rights to get it. It's a legitimate question. Funny how he hasn't answered.
        [ link to this | view in chronology ]
        
        Josh in CharlotteNC (profile), 4 Apr 2013 @ 9:38am
        
        Re: Re: Re: Re: Re:
        Answer below. Had a day of stories to catch up with and some work to do. Heading to lunch now, but I expect a detailed answer from you when I get back. Toodles.
        [ link to this | view in chronology ]
    - Anonymous Coward, 4 Apr 2013 @ 8:35am
      
      Re: Re: Re:
      Did you ever break the law ?
      [ link to this | view in chronology ]
      - Zakida Paul (profile), 4 Apr 2013 @ 8:37am
        
        Re: Re: Re: Re:
        There isn't a human being on this earth, now or ever previously, who has not broken some law.
        [ link to this | view in chronology ]
      - Anonymous Coward, 4 Apr 2013 @ 9:09am
        
        Re: Re: Re: Re:
        I didn't come to a complete stop at a stop sign just 30 minutes ago. That's a misdemeanor.
        [ link to this | view in chronology ]
      - Anonymous Coward, 4 Apr 2013 @ 12:29pm
        
        Re: Re: Re: Re:
        Did he stop beating his wife?
        [ link to this | view in chronology ]
    - E. Zachary Knight (profile), 4 Apr 2013 @ 8:48am
      
      Re: Re: Re:
      Let me ask you this:
      
      I set up an HTPC to record shows that come on during hours in which I am away from the TV so that I can watch them at my leisure.
      
      Just last week, the CPU fried and my HTPC is dead.
      
      Is it infringement for me to the go to the pirate bay and download the very episodes I recorded, legally, so that I can still watch them?
      [ link to this | view in chronology ]
      - Anonymous Coward, 4 Apr 2013 @ 9:10am
        
        Re: Re: Re: Re:
        I have an HTPC too. Great stuff. But to answer your question, yes, it's infringement.
        [ link to this | view in chronology ]
        
        Rikuo (profile), 4 Apr 2013 @ 9:23am
        
        Re: Re: Re: Re: Re:
        Yes...legally it is, but to the average person, they don't see the difference. It's legal to record the shows once they've been broadcast, but not to download them? What if your favourite show is set to broadcast a year from now in your region...what's the point of being a goody two shows and waiting twelve months, instead of getting the show (and possibly getting hooked on the show, and thus getting interested in buying merchandise etc)
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        Rikuo (profile), 4 Apr 2013 @ 9:23am
        
        Re: Re: Re: Re: Re: Re:
        *goody two shows
        
        should be goody two shoes
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        cpt kangarooski, 4 Apr 2013 @ 9:43am
        
        Re: Re: Re: Re: Re:
        
        I set up an HTPC to record shows that come on during hours in which I am away from the TV so that I can watch them at my leisure.
        
        Just last week, the CPU fried and my HTPC is dead.
        
        Is it infringement for me to the go to the pirate bay and download the very episodes I recorded, legally, so that I can still watch them?
        
        I have an HTPC too. Great stuff. But to answer your question, yes, it's infringement.
        
        Why?
        
        Remembering of course that it is prima facie infringement to record directly from a broadcast to which one is legally authorized to view (whether by right, as in the case of over-the-air broadcasts, or by private agreement, as in the case of subscription cable and satellite), but that this could be fair use if for the purposes of time shifting. To help out, here's the relevant bit of the Betamax opinion:
        
        [T]he District Court's findings plainly establish that time-shifting for private home use must be characterized as a noncommercial, nonprofit activity. Moreover, when one considers the nature of a televised copyrighted audiovisual work, see 17 U.S.C. � 107(2) (1982 ed.), and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact that
        Page 464 U. S. 450
        the entire work is reproduced, see � 107(3), does not have its ordinary effect of militating against a finding of fair use. [Footnote 33]
        This is not, however, the end of the inquiry, because Congress has also directed us to consider "the effect of the use upon the potential market for or value of the copyrighted work." � 107(4). The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder's ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create. The prohibition of such noncommercial uses would
        Page 464 U. S. 451
        merely inhibit access to ideas without any countervailing benefit. [Footnote 34]
        Thus, although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful or that, if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.
        
        In this case, respondents failed to carry their burden with regard to home time-shifting. The District Court described respondents' evidence as follows:
        "Plaintiffs' experts admitted at several points in the trial that the time-shifting without librarying would result in 'not a great deal of harm.' Plaintiffs' greatest concern about time-shifting is with 'a point of important philosophy that transcends even commercial judgment.' They fear that, with any Betamax usage, 'invisible boundaries' are passed: 'the copyright owner has lost control over his program.'"
        480 F.Supp. at 467.
        Page 464 U. S. 452
        Later in its opinion, the District Court observed:
        "Most of plaintiffs' predictions of harm hinge on speculation about audience viewing patterns and ratings, a measurement system which Sidney Sheinberg, MCA's president, calls a 'black art' because of the significant level of imprecision involved in the calculations."
        Id. at 469. [Footnote 35]
        There was no need for the District Court to say much about past harm. "Plaintiffs have admitted that no actual harm to their copyrights has occurred to date." Id. at 451.
        On the question of potential future harm from time-shifting, the District Court offered a more detailed analysis of the evidence. It rejected respondents'
        "fear that persons 'watching' the original telecast of a program will not be measured in the live audience, and the ratings and revenues will decrease"
        by observing that current measurement technology allows the Betamax audience to be reflected. Id. at 466. [Footnote 36] It rejected respondents' prediction "that live television
        Page 464 U. S. 453
        or movie audiences will decrease as more people watch Betamax tapes as an alternative," with the observation that "[t]here is no factual basis for [the underlying] assumption." Ibid. [Footnote 37] It rejected respondents' "fear that time-shifting will reduce audiences for telecast reruns," and concluded instead that "given current market practices, this should aid plaintiffs, rather than harm them." Ibid. [Footnote 38] And it declared that respondents' suggestion that "theater or film rental exhibition of a program will suffer because of time-shift recording of that program" "lacks merit." Id. at 467. [Footnote 39]
        Page 464 U. S. 454
        After completing that review, the District Court restated its overall conclusion several times, in several different ways. "Harm from time-shifting is speculative and, at best, minimal." Ibid.
        "The audience benefits from the time-shifting capability have already been discussed. It is not implausible that benefits could also accrue to plaintiffs, broadcasters, and advertisers, as the Betamax makes it possible for more persons to view their broadcasts."
        Ibid. "No likelihood of harm was shown at trial, and plaintiffs admitted that there had been no actual harm to date." Id. at 468-469.
        "Testimony at trial suggested that Betamax may require adjustments in marketing strategy, but it did not establish even a likelihood of harm."
        Id. at 469.
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        Rikuo (profile), 4 Apr 2013 @ 9:55am
        
        Re: Re: Re: Re: Re: Re:
        Here's the problem, AJ. No-one who isn't a lawyer really cares about the LETTER of the law. You may be right that the letter of the law says its iffy on when you record a broadcasted show, but the average person isn't once going to wonder about it. They have the device, they have the means, motive and opportunity, to record, and they will. If for some reason it fails, like the guy who just said his HTPC is fried, well, a torrent is handy. No harm done (I should say, NO PROVABLE HARM) as far as that person sees. In fact, there's a whole generation of kids growing up now who don't know about VCRs but do know all about torrents, but not the law behind them (and really, who would know the ins and outs of copyright law without multiple years of law school?) They're growing up, completely ignorant of copyright law and it's pretty safe to bet that if one day they're told that what they've been doing their whole lives is evil and wrong, they'll just say you're crazy.
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        Anonymous Coward, 4 Apr 2013 @ 11:29am
        
        Re: Re: Re: Re: Re: Re: Re:
        rikuo don't lose his number, its the only one he has...
        hhh
        
        GREAT points (as usual), rikuo...
        it REALLY grates on my nerves that the MAFIAA torch-carriers, li'l boy blue in the face, and AJ, etc, WANT TO make this ALL ABOUT 'The Law', when us nobody nekkid apes don't really give a shit about 'The Law'...
        
        as others have pointed out, 'The Law' is SO pervasive, and intrudes into so many aspects and details of our normal lives, that there is not a one of us who does not traduce 'The Law' multiple times on a daily basis...
        
        however, *MOST* of us DO NOT live our lives to avoid breaking 'The Law', we live our lives in a manner which is respectful of everyone else's rights we interact with... 'The Law' doesn't enter into our moral equations, merely doing the right thing is what guides us...
        
        *HOWEVER*, now that the korporatocracy has taken off the velvet gloves and revealed the steel fist they crush us with; we have NO RECOURSE but to use what remnants of the law help non-korporate persons...
        
        korporations are NOT restrained by good taste, by morals and ethics, by neighborliness, by manners, by social contract, by altruism and kindness, or by ANYTHING which are the social constraints WE ALL live with and guide our decisions...
        
        i simply DO NOT CARE what bullshit laws the MAFIAA has BOUGHT for their SOLE benefit...
        i care about fairness and equity, the MAFIAA does not; and guess which side 'our' (sic) gummint is on ? ? ?
        
        art guerrilla
        aka ann archy
        eof
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        Anonymous Coward, 4 Apr 2013 @ 2:23pm
        
        Re: Re: Re: Re: Re: Re:
        The Betamax decision is irrelevant because downloading involves a different copy. While the underlying TV program may be the same, the copy that you recorded and lost on the HTPC is a different copy than the one you got from bittorrent. Betamax allows you to record and make a copy of a broadcast for future viewing of that copy only (timeshift). Each copy of the work is protected, and just because you have one legit copy doesn't mean you're entitled to have access to every copy.
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        Anonymous Coward, 4 Apr 2013 @ 4:04pm
        
        Re: Re: Re: Re: Re: Re: Re:
        I'm sure that's easy enough to enforce.
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        cpt kangarooski, 4 Apr 2013 @ 4:36pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Betamax allows you to record and make a copy of a broadcast for future viewing of that copy only
        
        Got a cite for that?
        
        Certainly the uploader in a file sharing scenario is infringing, but why is it necessary that, in a scenario where you can lawfully make a copy from a broadcast, that you, the viewer, must use that particular method?
        
        Why don't you run through a four factor fair use analysis and point out the spot where it takes a different turn from the analysis in the Betamax case?
        
        Each copy of the work is protected
        
        No, copyright doesn't protect copies, it limits actions. Making new copies is prohibited, copies themselves are not. Verbs, not nouns, basically.
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        Anonymous Coward, 5 Apr 2013 @ 5:56am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        Got a cite for that?
        Got a cite that Betamax extends any further? Timeshifting allowed by Betamax was "the practice of recording a program to view it once at a later time, and thereafter erasing it." There was nothing about obtaining a different copy from an unauthorized source; Betamax is about one person privately making one temporary copy of an authorized broadcast for private use. That's easily distinguishable from a scenario where you're trying to claim that once you have one legitimate copy, then you're free to duplicate other copies from an unauthorized source. This isn't a situation where you've saved a backup of file you already had or space-shifting- you're going out and making a new copy of a file you never had.
        
        Moreover, pointing towards Betamax and claiming fair use is a stretch. The reason a fair use defense is so risky to use in an actual dispute is that it's evaluated on a case-by-case basis, and this situation is definitely not clearly within existing precedent.
        
        Factor 1: Purpose and character: Private, non-commercial purpose points towards fair use. However, the scenario is also non-transformative- there is no additional expression or creative work added by downloading a new copy; this isn't a documentary, news reporting, or other creative extension of the original work. The whole point is to obtain a new copy that is functionally identical to the original HTPC copy. So maybe fair use, maybe not.
        
        Factor 2: Nature of the copied work: An audio-visual entertainment program is pretty much an exemplar of a work to be highly protected by copyright. A TV show tends to be "close to the core of intended copyright protection and, conversely, far removed from the more factual or descriptive work more amenable to fair use" (UMG v. mp3.com, regarding music files, citations and quotations removed). This factor weighs against fair use.
        
        Factor 3: Amount and substantiality: The scenario is that the whole work will be copied, so this factor weighs against fair use.
        
        Factor 4: Effect upon work's value: The purpose of this was to avoid obtaining another authorized copy of the work, e.g., a DVD, licensed streaming source, broadcast, from which the copyright holder was presumably obtaining some revenue. Of course, one unauthorized copy is also unlikely to have any noticible impact on revenue. So maybe fair use, maybe not.
        
        So after the four factor analysis we can conclude... that it's a big honking mess and that if it had to be argued in court, I wouldn't be comfortable relying on fair use/Betamax to save me.
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        cpt kangarooski, 5 Apr 2013 @ 6:35am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Got a cite that Betamax extends any further? Timeshifting allowed by Betamax was "the practice of recording a program to view it once at a later time, and thereafter erasing it.
        
        Well, to be a little more precise, what it says is:
        the average member of the public uses a VTR principally to record a program he cannot view as it is being televised, and then to watch it once at a later time. This practice, known as "time-shifting,"
        
        Using what we'd now call a VCR, or more likely using a DVR to record a program, does not seem to me to be materially different from downloading a program from the Internet. As far as the downloader's actions go, there is no discernible difference for the four fair use factors, provided that the downloader had legitimate access to the work (such as via local over the air broadcast or by virtue of subscribing to the pertinent channel on some pay service). The only argument I can see is that the downloader is somehow indirectly liable for the uploader (who likely is not protected), but that seems like a hell of a stretch.
        
        There was nothing about obtaining a different copy from an unauthorized source
        
        Stipulating that the downloader could have gotten it from a legitimate source as mentioned above (in fact, wasn't the original hypo about downloading things that had been time shifted but where the recording medium had been corrupted before viewing?), why should the actual source used matter? By all means, hold the unauthorized source liable, but we're talking about the downloader's liability here.
        
        Moreover, pointing towards Betamax and claiming fair use is a stretch. The reason a fair use defense is so risky to use in an actual dispute is that it's evaluated on a case-by-case basis, and this situation is definitely not clearly within existing precedent.
        
        I know how fair use works, and why it is risky. Hell, not even all time shifting is fair use; each and every case is different. Still though, I fail to see a material difference in the general case where the only thing that changes is the source of the work being recorded.
        
        Factor 4: Effect upon work's value: The purpose of this was to avoid obtaining another authorized copy of the work, e.g., a DVD, licensed streaming source, broadcast, from which the copyright holder was presumably obtaining some revenue. Of course, one unauthorized copy is also unlikely to have any noticible impact on revenue. So maybe fair use, maybe not.
        
        Again though, to the extent that the downloader would've paid for the work if recorded traditionally, he has in this scenario. Downloading is only being used as a substitute source in the absence of a working tv-based recording system. That was the hypo, not whether all downloading is okay.
        
        Both traditionally recorded and downloaded copies are being used in an unauthorized way, avoiding paying for the work in addition to any payments which were already made. (I.e. avoiding only a double payment)
        
        Sony tells us that interfering with copyright holders' 'control' isn't enough for the fourth factor, nor is interfering with audience ratings systems. Nor watching movies on TV as a substitute for going to the movie theater (as always assuming that the time shifter was watching something which had been broadcast to him with the authorization of the copyright holder, even though in this case the specific recording comes from a different source).
        
        I agree that fair use is a risk, but in this specific case -- downloading as a substitute for traditional recording only out of convenience, and with no difference in terms of whether access to the work was legitimate, and with no attempt to defend the uploader -- I don't see what the difference is, and I don't see that you've identified it. But I'm happy to keep looking with you, if you think it is there.
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        Anonymous Coward, 5 Apr 2013 @ 8:25am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        I used quotation marks for a reason: "the practice of recording a program to view it once at a later time, and thereafter erasing it" is in the opinion, section 1. 464 U.S. at 423. The court endorsed home users recording a program, viewing it once, and then deleting the copy.
        
        Also think of the model the court examined: the VCR took a copy of an authorized broadcast and stored it temporarily for future use. It was like bottling up the show for a brief time. This is a far cry from saying because the work was broadcast, that I can make any copy of the work from any source. If I record a song off the radio, that doesn't mean I can legitimately rip that song from a CD that I don't own.
        
        downloading as a substitute for traditional recording only out of convenience, and with no difference in terms of whether access to the work was legitimate[] -- I don't see what the difference is
        
        First, "Copyright, however, is not designed to afford consumer protection or convenience but, rather, to protect the copyrightholders' property interests." UMG v. mp3.com. I agree that there's little practical difference in the end result from someone downloading a copy vs recording it themselves. However, that's pretty irrelevant for whether there was a copyright violation. Process matters, and how one acquires a copy of a work matters. Look at all the hoops Aereo jumped through that make no technical sense but are required to avoid copyright liability. Second, the access to the work was not equally legit. One copy was from a presumably authorized broadcast. The replacement copy was a presumably unauthorized upload (Pirate Bay). Non-controversial fair use analysis would say that you could do a lot with the first copy (e.g., time shift, space shift, backup). But the second copy is tainted.
        
        There is a definite distinction between a work and a copy of a work, and just because you have a legit copy, doesn't mean you free reign on the underlying work.
        
        By all means, hold the unauthorized source liable, but we're talking about the downloader's liability here.
        
        Just because individual downloaders have not been sued or prosecuted doesn't make it legal (or fair use). Suing individual downloaders doesn't make economic or business sense, but that doesn't mean there isn't a legal violation occurring- I get away with minor crimes all the time (speeding, rolling through stop signs), but that doesn't make it legal. If I make a copy of my neighbor's music CD that I don't own, then I've committed a copyright violation that will never be in court.
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        cpt kangarooski, 5 Apr 2013 @ 9:59am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        I used quotation marks for a reason: "the practice of recording a program to view it once at a later time, and thereafter erasing it" is in the opinion, section 1. 464 U.S. at 423. The court endorsed home users recording a program, viewing it once, and then deleting the copy.
        
        I had thought it wasn't necessary to mention, but if it helps, I'll stipulate that our hypothetical person has a VCR hooked up to an antenna in order to receive an over the air broadcast and record it for a single time shifted viewing, but instead downloaded a video file of the identical broadcast for a single time shifted viewing. After that one viewing, he erases the file from his computer as thoroughly as necessary for you to be satisfied that he isn't going to watch it again.
        
        If I record a song off the radio, that doesn't mean I can legitimately rip that song from a CD that I don't own.
        
        You're begging the question. Whether or not you can -- we'll assume that the broadcast version is utterly identical to the CD version to simplify things -- is basically exactly the issue. I just started with video because it seemed easier.
        
        I agree that there's little practical difference in the end result from someone downloading a copy vs recording it themselves. However, that's pretty irrelevant for whether there was a copyright violation. Process matters, and how one acquires a copy of a work matters.
        
        Well there was obviously a prima facie infringement, but my question is whether it was fair, and if it makes "little practical difference" or as I would argue, no practical difference whatsoever, why would it be unfair? Fair use is a lot like the utility doctrine -- it's really about whether the court's gut feeling, with some fuzzy rules tacked on to make it seem like there's an objective process -- so it all depends on who you get, but if we can manage to be a little objective and set aside disapproval of uploaders carrying through against downloaders, and likewise not treat as serious the supposed harms to the industry that were insufficient in Sony, why's it not fair in the very narrow circumstance set forth in the hypo as we've been chatting? I'm not talking about all downloading here.
        
        Second, the access to the work was not equally legit. One copy was from a presumably authorized broadcast. The replacement copy was a presumably unauthorized upload (Pirate Bay). Non-controversial fair use analysis would say that you could do a lot with the first copy (e.g., time shift, space shift, backup). But the second copy is tainted.
        
        Why should the end user be punished for the sins of an intermediary? All the end user ever does is make a copy of a work to which he does have authorizes access (though he may not be using that means), and surely should only be judged for whether his own copying is unlawful. Are you suggesting some sort of secondary liability against the downloader for the upload?
        
        Also, what would happen if the broadcast from the TV station were unauthorized? E.g. The movie is the subject of an infringement lawsuit between a screenwriter and the studio or whomever and turns out to be unlawfully made itself? Or the cable company is in a dispute with the channel and accidentally fails to turn off the transmission at the correct time when the contract runs out. Does the 'taint' render the home time shifter an infringer rather than a fair user? If he is liable, the best he could hope for is to be an innocent infringer for $200 - $30,000 in statutory damages, and with DVRs built into cable boxes and presumably subject to remote analysis, it could be very easy to identify hundreds or thousands or tens of thousands of them.
        
        Just because individual downloaders have not been sued or prosecuted doesn't make it legal (or fair use). Suing individual downloaders doesn't make economic or business sense, but that doesn't mean there isn't a legal violation occurring
        
        Yeah, I'm well aware of that. But I'm still interested in why it would not be a fair use in this rather narrow hypo.
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        Anonymous Coward, 5 Apr 2013 @ 12:51pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        re: radio- you're right, it's begging the question, but frankly, I didn't think it was that controversial a statement.
        
        I think the fundamental point of disagreement is over the degree of access to the work vs copy. The cases allowing fair use exceptions for space shifting and time shifting have allowed a user to create copies based on a work from an authorized source. Once you have such a copy, you can do a lot to it- transcoding, time shifting, space shifting.
        
        But I don't think the case law supports extending that into different copies of the same work and claiming fair use. The fair use rationale you're proposing means that if I just start recording my local FM stations for a month or two (to get a permitted copy of every top 100 song), then I could download all those songs from unauthorized torrents and be fine under fair use. I think that the courts would view that extremely unfavorably.
        
        As far as I know, all of the cases approving time/space shifting involved a personal, private copies made by the actual person putatively covered by fair use. If there's one involving copies made by a third party, I'd be happy to reconsider my position, but otherwise, I can't see a court approving extending fair use to that.
        
        Are you suggesting some sort of secondary liability against the downloader for the upload?
        
        I'm not suggesting secondary liability; the downloader is committing direct copyright infringement because he does not have authorization to duplicate that particular copy.
        
        Also, what would happen if the broadcast from the TV station were unauthorized? ... Does the 'taint' render the home time shifter an infringer rather than a fair user? If he is liable, the best he could hope for is to be an innocent infringer for $200 - $30,000 in statutory damages, ....
        
        I'd say yes, as a technical matter. Copyright infringement is a strict liability violation with no intent/mens rea requirement; there are heightened penalties for willful infringement, but unintentional or unwitting infringement is still actionable. In terms of fair use, if someone had been broadcasting Mr. Rogers or sporting events without authorization back in 1984, and Sony tried to base recording and time shifting fair use on those unauthorized broadcasts, do you really think SCOTUS would have given its approval? That being said, I also can't imagine a court actually awarding damages in that situation, instead just vacating damages on equity principles.
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        Anonymous Coward, 5 Apr 2013 @ 7:30am
        
        Re: Re: Re: Re: Re: Re: Re:
        The Betamax decision is irrelevant because downloading involves a different copy. While the underlying TV program may be the same, the copy that you recorded and lost on the HTPC is a different copy than the one you got from bittorrent. Betamax allows you to record and make a copy of a broadcast for future viewing of that copy only (timeshift). Each copy of the work is protected, and just because you have one legit copy doesn't mean you're entitled to have access to every copy.
        
        Exactly. The fair use in Sony was predicated on having access to a legal source from which to make the copy. The copies on bittorrent aren't legal sources.
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        PaulT (profile), 5 Apr 2013 @ 7:58am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        So nobody had access to pirated copies of tapes to make further copies from in the VHS days? Multi generational dubs didn't exist? Strange, I remember differently.
        
        Do any of you ACs have links to actual legal decisions that state any of these weird claims you're making, or is this just another attempt to retcon history to pretend that the legal precedents already established magically disappear in the online world?
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        Anonymous Coward, 5 Apr 2013 @ 9:10am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        These are hardly "weird claims". The situation in Betamax can be distinguished from the hypo on several grounds, and each of those grounds gets you further away from comfortably claiming fair use. Courts tend to favor the copyright holders. Fair use is generally viewed as an affirmative defense- "yes, I made a copy but it's excused because of X, Y, and Z". So the default position confronting the court is that a violation exists, and now you need to explain why you're not liable for $150k. Also remember that, in Betamax, Sony lost in the 9th circuit.
        
        retcon history to pretend that the legal precedents already established magically disappear
        
        Hmm, there's a legal precedent that if I recorded a TV program on my DVR, then I can download the same program via torrent and it's considered fair use? Really? Citation?
        
        The hypo is hardly a clear cut case for fair use. Two of the factors clearly disfavor fair use. The other two factors are ambiguous.
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        PaulT (profile), 6 Apr 2013 @ 4:24am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        "These are hardly "weird claims"."
        
        I think they are. You're claiming that the Betamax verdict varies depending on where the signal being recorded comes from. I don't recall this being discussed either during the case itself or in any of the decade of discussion about it following Napster. Maybe I'm wrong and this was indeed part of the case history, but the fact I don't remember it makes it a weird claim to me. Perhaps you can link to the part that makes a differentiation between legality depending on the signal source as you claim?
        
        "So the default position confronting the court is that a violation exists, and now you need to explain why you're not liable for $150k."
        
        Thank you for identifying why this entire thing is bullshit. Assumed guilty unless proven innocent, with the onus being on the victim to prove a negative (impossible). Glad you know why this whole system is so problematic.
        
        "Hmm, there's a legal precedent that if I recorded a TV program on my DVR, then I can download the same program via torrent and it's considered fair use? Really? Citation?"
        
        There's a case where it's shown that despite having a legal copy of a movie, it's illegal to download a backup where it's legal to rip one? Citation?
        
        We can play at this all week, but you're the one coming up with the initial claims. How about you back that up first?
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        Anonymous Coward, 6 Apr 2013 @ 7:31pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Both Betamax and the Rio Diamond case (which judicially approved of time and space shifting) involved duplication/transfer of a copy from an authorized source. The Grokster, Napster, and Limewire cases all had courts rejecting fair use defenses involving unauthorized sources.
        
        The status of the source is an easy way for fair-use skeptical courts to distinguish from existing fair use cases.
        
        Assumed guilty unless proven innocent, with the onus being on the victim to prove a negative (impossible).
        
        First, you don't have to prove a negative. You have to persuade the judge that your actions were excusable under existing fair use doctrine. There is no bright line; complete duplication of a whole work can be fair use under appropriate circumstances while a fleeting de minimus copy can be infringing. Second, whether or not this "bullshit", that's what there is in the US, and all the wishing for a different fair use doctrine doesn't make it so in a courtroom. Betamax was a 5-4 decision that overturned a 9th circuit ruling that imposed liability on Sony- this was not a ringing endorsement of broad fair use. If Sony had tried to argue individuals copying from a non-authorized source as the basis for fair use of the VCR, do you really the supreme court would have given approval?
        
        We can play at this all week, but you're the one coming up with the initial claims. How about you back that up first?
        
        Since you were complaining about "retcon[ing] history to pretend that the legal precedents already established magically disappear", the logical presumption is that you had legal precedents in mind. And Betamax and Rio Diamond involved copying from authorized sources, so claiming fair use based on unauthorized sources is the deviation from precedent that needs to be justified.
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        PaulT (profile), 8 Apr 2013 @ 2:54am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        You still haven't linked to any information, just repeated your uncited opinion of what was covered. Links, please.
        
        The fact is that in the Betamax case, both types of sources were freely available in the real world. In the Rio case, both types of sources were freely available in the real world. In both cases, the technology worked the same regardless of the type of source used, and in both cases the technology was not found to be used primarily for infringement.
        
        If you have information I'm missing, cite it. Otherwise, I really don't think that the type of source used magically changes the nature of the technology. If the courts only considered one type of source, and that's critical to its decision, then they didn't consider the reality of how the technology was used by the public. But, I do find it very strange that it's only now that this distinction is being claimed.
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        Anonymous Coward, 8 Apr 2013 @ 7:24pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Reposted from wrong place in thread:
        -------
        Sony's Betamax VTR is a mechanism consisting of three basic components: (1) a tuner, which receives electromagnetic signals transmitted over the television band of the public airwaves.... 464 U. S. at 422, emph. added.
        
        The lengthy trial of the case in the District Court concerned the private, home use of VTR's for recording programs broadcast on the public airwaves without charge to the viewer. No issue concerning the transfer of tapes to other persons, the use of home-recorded tapes for public performances, or the copying of programs transmitted on pay or cable television systems was raised.
        
        The District Court concluded that noncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted works, and did not constitute copyright infringement. It emphasized the fact that the material was broadcast free to the public at large, the noncommercial character of the use, and the private character of the activity conducted entirely within the home. 464 U. S. at 425, emph. added.
        
        Moreover, when one considers the nature of a televised copyrighted audiovisual work, see 17 U.S.C. � 107(2) (1982 ed.), and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge.... 464 U. S. at 449
        
        The putative fair use considered, and approved of, in Betamax was the recording of free, off the air broadcasts.
        
        If you want to claim that duplication from an unauthorized source is fair use, that's fine. But that position is the deviation from the fact pattern in the seminal case, and not the other way around.
        
        You know what fair use was approved in Napster? "Permissive reproduction by either independent or established artists is the final fair use claim made by Napster. The district court noted that plaintiffs did not seek to enjoin this and any other noninfringing use of the Napster system...." 239_F3d_1004, sect. 3c, emph. added. It's non-dispositive dicta, but still relevant.
        
        Your complaint from the start was that these were "weird" claims disregarding existing precedent. Once again, what precedent were you referring to? If there's a court case that supported fair use of based on an unauthorized copy, cite it. The well-known AV copying fair use cases have a pretty clear split: the cases which approved fair use involved authorized sources, and the cases for stereotypical pirated sources were disapproved.
        [ link to this | view in chronology ]
        
        cpt kangarooski, 5 Apr 2013 @ 8:11am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        Well, the hypo stated that the downloader did have access to authorized sources, which we can assume to be over the air broadcasts and subscription cable and satellite services. So in that case, why does it matter which source he uses? (Ignore the liability of the unauthorized source, please, as no one is defending that at the moment, and assume also that the downloader is downloading only, with no uploading (there are other protocols besides bit torrent).
        [ link to this | view in chronology ]
    - Anonymous Coward, 4 Apr 2013 @ 8:50am
      
      Re: Re: Re:
      "Tell me this, Josh. Do you infringe?"
      
      Everybody infringes. Just like everybody breaks the law in some way. They may not be doing it intentionally or even be aware that they're doing it, bet they are. Even holier than thou AJ (I'm sure unaware) infringes and breaks some arcane laws.
      [ link to this | view in chronology ]
    - Greevar (profile), 4 Apr 2013 @ 9:03am
      
      Re: Re: Re:
      Do you still beat your wife?
      
      This question is no different than yours. Like yours, it's a tu qouque fallacy that is avoiding having to engage with criticism by turning it back on the accuser, answering criticism with criticism.
      [ link to this | view in chronology ]
      - Anonymous Coward, 4 Apr 2013 @ 9:13am
        
        Re: Re: Re: Re:
        That's another sad excuse he pulls out. I'm not assuming that he only focuses on the negatives. That's an observation based on empirical data which is me reading this blog for three years. If you can recall even one single article--heck, even one sentence--where he discusses something positive about copyright, please point me to it. Otherwise, I think you'll have to admit that my presumption that no such article exists is correct.
        
        My question as to whether he thinks there should be any copyright doesn't presuppose anything, so again you're wrong. I just want his OPINION, which of course will be imperfect and fallible and not handed down by God. It's just an opinion. That's all I want. He's quite clearly capable of forming opinions about copyright. It's strange though that he pretends like he can't possibly discuss it when it's a tough question. Almost like he's hiding something.
        [ link to this | view in chronology ]
        
        Rikuo (profile), 4 Apr 2013 @ 9:25am
        
        Re: Re: Re: Re: Re:
        Honest question here, AJ. Let's say Mike, right this minute, answers you. He types out his opinion.
        
        What will you do then?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Apr 2013 @ 9:52am
        
        Re: Re: Re: Re: Re: Re:
        He'll move the goalposts.
        [ link to this | view in chronology ]
        
        John Fenderson (profile), 4 Apr 2013 @ 9:54am
        
        Re: Re: Re: Re: Re: Re:
        He'll do what he's done before when Mike has answered his questions clearly and directly. He'll claim that Mike didn't answer his questions and repeat them.
        [ link to this | view in chronology ]
        
        Greevar (profile), 4 Apr 2013 @ 1:14pm
        
        Re: Re: Re: Re: Re:
        No, as I've told you before, you want more ammunition to discredit Mike. You don't care what his opinion is, so long as he keeps feeding your ad hominem attacks.
        [ link to this | view in chronology ]
      - Anonymous Coward, 5 Apr 2013 @ 6:13am
        
        Re: Re: Re: Re:
        "Do you still beat your wife?" is a pretty different question than the "do you infringe". While you're right that the latter is along the lines of a tu quoque argument, the former isn't (unless we're having a discussion on domestic abuse).
        [ link to this | view in chronology ]
        
        Greevar (profile), 5 Apr 2013 @ 8:12am
        
        Re: Re: Re: Re: Re:
        No, it only matters if criticism is answered with criticism.
        [ link to this | view in chronology ]
    - Josh in CharlotteNC (profile), 4 Apr 2013 @ 9:30am
      
      Re: Re: Re:
      I do infringe. I do so knowingly in many cases, and I think it is highly likely that I also do so without even realizing it. Can my co-worker overhear my legally streamed music from Spotify when I play it at work? That might infringe (according to certain rights organizations), but it might not. What about taking a picture of my friends when we visited an art museum? Does incidentally catching a copyrigted artwork in the picture even when it was not the subject of the picture infringe?
      
      But what does that matter? Pointing to my infringing is simply another ad hom attack by someone who cannot even debate on the topic he brought up - namely the desirability of copyright and its benefits and its faults.
      
      So AJ, do you infringe? Have you ever infringed copyright knowingly? What about anytime unknowingly? I answered your question, you answer mine. Then answer my question as to why it matters.
      
      Is it possible that some copyrighted content would not have been created without copyright? Certainly. But does that offset instances where we know that other content is not created, or is suppressed after it is created because of copyright being misused? My argument is that the explosive growth of content creation we have today is in spite of copyright (not because of copyright), and we could have even more new content if copyright was scaled back or scrapped entirely. In addition to new content, we could have new innovative services to make it easier to access all of that content, copyrighted or not. Why won't you address this question, AJ? Why won't you address the issue that copyright is regularly used to censor new content and prevent new innovations? Should I keep attacking you, AJ, or do you want to debate the topic?
      [ link to this | view in chronology ]
  - Keroberos (profile), 4 Apr 2013 @ 8:31am
    
    Re: Re:
    There are positives to copyright--just like there are positives to slavery, but only to those profiting from copyright--or slaves.
    [ link to this | view in chronology ]
    - Anonymous Coward, 4 Apr 2013 @ 8:41am
      
      Re: Re: Re:
      Well-found analogy for rights-owner middlemen screwing up everyone else, from authors to audience. Including the arrogance of self-entitelment at the cost of our freedom of speech and freedom from being systematically spied on and monitored.
      
      Who would have guessed the publishers -once on the side of spreading world-changing ideas- would end up as the best allies spearheading freedom-restraining and citizen control initiatives, in the ill-understood name of profit.
      [ link to this | view in chronology ]
- Keroberos (profile), 4 Apr 2013 @ 8:27am
  
  Re:
  Most of us here believe in the original stated purpose of copyright in the US constitution--the benefit of the society granting it. Seeing as copyright law as it exists today provides no discernible benefit to society (it only benefits those that hold the copyright), it should be abolished or replaced with something that does.
  [ link to this | view in chronology ]
  - Artistic1, 11 Apr 2013 @ 7:47am
    
    Re:copyright use
    As an artist/writer I have direct concerns regarding copyright. Yes copyright SHOULD protect the creator of any work, in order for the producer to benefit from that work for a reasonable length of time. However, copyright (and patent) law is being perverted in the U.S. in order to protect the interests of major corporations at the expense of everyone else. The whole concept of "Fair Use" has been under attack, to the point that even legitimately innovative, let alone derivative or satiric works are threatened or even pre-emptively aborted because people are afraid that they'll be accused of copyright infringement. As often discussed here, most people don't have the deep pockets necessary to fight the fight, no matter how just their cause. This is having a major affect on innovation and creativity--which copyright (and patent) is supposed to protect. I'm even more concerned by the spread of Microsoft's "licensing" concept: It's becoming clear that corporations want to eliminate the whole concept of "owning" your purchases; instead you only pay to "borrow" it (at enormous profit to themselves) which severely restricts your rights--far beyond copyright (patent) protection. Hand in hand with copyright issues and the aggressive fight to interpret those protections so broadly, is the fact that these same corporations are becoming major monopolies, leaving the consumer high and dry while stifling innovation. This trend can only have a detrimental effect on the U.S. as a powerhouse of innovation and industry. Copyright (and patent) has it's place, but the courts need to consider the unintended consequences of the current trends which go far beyond the original intent.
    [ link to this | view in chronology ]
- E. Zachary Knight (profile), 4 Apr 2013 @ 8:44am
  
  Re:
  I guess you missed the recent story about the author who made a million dollars over night by selling print and movie rights to his books.
  [ link to this | view in chronology ]
  - Anonymous Coward, 4 Apr 2013 @ 9:14am
    
    Re: Re:
    I read the headline but not the story. Good for that author. I love a good success story.
    [ link to this | view in chronology ]
- Rikuo (profile), 4 Apr 2013 @ 8:47am
  
  Re:
  Well, I must applaud you. It seems that you've taken my advice and started asking your questions in a polite manner. Good.
  However, your question is for a single person only. Asking it here is not conducive to that aim. He may respond, but asking here in the public comments section isn't the best way to get Mike to answer. This is for us, the readers of Techdirt, to comment on each article. Since your question is for Mike and Mike alone, well, all you have to do is email him. Should Mike not respond, then give it up for a lost cause and move on.
  
  As for whether or not people here have infringed...yes, we have. I for one am proud to be an infringer. Others here aren't. Mike isn't. The problem is, that it is literally impossible not to infringe. Load up any web site in your browser - your computer is downloading all the images, sounds and videos on that site to your computer. Do you have the necessary licences for all of those? No? How do you know? Does the website operator? How do you know? Should we be expected to do detailed background investigations of every website before daring to load them?
  
  More and more artists are deliberately releasing their work for free on torrent sites. How am I supposed to know whether the work I download through there is copyrighted or not?
  [ link to this | view in chronology ]
  - Anonymous Coward, 4 Apr 2013 @ 9:16am
    
    Re: Re:
    I don't infringe. It's easy not to. You just don't download/upload illicit files. You don't need explicit licenses to load a regular webpage, like Techdirt. There's an implied license that if you open your website up to the world others can visit it. I load webpages all day long, knowing that I'm not infringing.
    
    Let me ask you this. Do you intentionally infringe? I mean, download Hollywood movies and the like.
    [ link to this | view in chronology ]
    - Anonymous Coward, 4 Apr 2013 @ 9:30am
      
      Re: Re: Re:
      I don't infringe. It's easy not to.
      
      Then you're a liar. Under current US law, as written, if you don't have the necessary licenses for everything, then you're infringing.
      [ link to this | view in chronology ]
    - Rikuo (profile), 4 Apr 2013 @ 9:31am
      
      Re: Re: Re:
      "There's an implied license that if you open your website up to the world others can visit it. I load webpages all day long, knowing that I'm not infringing."
      
      Really? So, let's take a hypothetical. Let's say Mike today deletes all the articles and has the main Techdirt.com page full of copyrighted images, sounds and movies, for which he has no licence. You then load the web-page. Are you somehow completely free of any possibility of being called an infringer? After all, you must be. You're copying copyrighted works for which you have no licence. Ignorance of the law is no excuse, or so I've heard.
      
      Also...how sure are you that you don't infringe? Care to give us the patented AJ-branded 100% proof idiot-free guide to never infringing? And no, just staying away from torrent sites like the Piratebay isn't enough.
      Also...even if you can somehow prove to us that you never infringe, supposing you're in the US and are a subscriber to a major ISP like Verizon or Comcast, how would that protect you from Six Strikes? Torrent sites poison their trackers with fake IP addresses that aren't actually part of the swarm, for one thing. Your IP address could easily be said to have been used to infringe, EVEN IF YOU ARE NOT USING THEM.
      [ link to this | view in chronology ]
    - John Fenderson (profile), 4 Apr 2013 @ 9:56am
      
      Re: Re: Re:
      It's a safe bet that you do infringe. There's a million ways to do so without ever intentionally uploading or downloading infringing files.
      
      It's a bit like traffic laws -- you break them, probably every day that you drive, without even knowing it.
      [ link to this | view in chronology ]
    - Anonymous Coward, 4 Apr 2013 @ 10:12am
      
      Re: Re: Re:
      I don't infringe. It's easy not to.
      If you ever sang "Happy Birthday to You" at a party in a group of more than ten people, you have infringed copyright.
      [ link to this | view in chronology ]
      - Rikuo (profile), 4 Apr 2013 @ 10:19am
        
        Re: Re: Re: Re:
        Like here?
        http://www.youtube.com/watch?v=mb_pQRVwcnQ
        
        3.8 million views. Looks this very famous and talented animator is an evil copyright infringer and must be purged, for the sake of humanity.
        [ link to this | view in chronology ]
    - Jay (profile), 4 Apr 2013 @ 12:06pm
      
      Re: Re: Re:
      You just don't download/upload illicit files.
      
      You know what? I don't download/upload illicit files. I create and make material based on facts and information I find. Then I use some background music to put that to a news section for gamers and people that stream gaming stuffs.
      
      So here's a question... How about defining illicit for us? Tell us how you figure out the illicit files from the un-illicit files?
      
      Tell us why filesharing is off limits when there are PLENTY of options for files to download besides Hollywood? How about the Humble Indie Bundle?
      
      How about old abandonware?
      
      How about discussing how torrenting is used by Facebook and Twitter to distribute files in a legal manner with minimal resources?
      
      Why not tell us how we can avoid the big libraries of content that Hollywood has decided they don't want to be a part of so that they can squeeze more profit out of more people instead of learning how to make money in the digital era?
      
      Why should we lock up infringers? Why make them pay high statutory damages? Why should the public suffer for more money to go to Hollywood when people have found cheaper and better alternatives to what Hollywood decides to sell?
      
      Help us understand why Hollywood is so much more important than the goods and services that have been unleashed since the internet has evolved and grown for the past 30 years.
      [ link to this | view in chronology ]
      - nasch (profile), 4 Apr 2013 @ 1:29pm
        
        Re: Re: Re: Re:
        Tell us how you figure out the illicit files from the un-illicit files?
        
        Don't use no double negatives. The word is licit.
        [ link to this | view in chronology ]
    - Anonymous Coward, 4 Apr 2013 @ 12:07pm
      
      Re: Re: Re:
      You ever right click on a photo on a webpage and click "Save As...?" Ever?
      [ link to this | view in chronology ]
    - JP Jones (profile), 4 Apr 2013 @ 12:51pm
      
      Re: Re: Re:
      I don't infringe. It's easy not to.
      
      Bull. You're on the internet. It's impossible to avoid infringement on the internet. The only way to not infringe is to never use a computer.
      
      Here's how it works. You visited this website. This website has copyrighted information (the articles). This information is copyrighted regardless of the creator's will; it's automatic.
      
      By visiting the website, your computer made at least two unauthorized copies, according to current copyright law. It saved the files once into RAM, and once into your temporary internet files. You did not have permission for either of these copies because your created *new* copies of a copyrighted work. Even if Mike gave you permission to use his original copy, your computer automatically created new copies which are inherently infringing since they are separate from the original work.
      
      In order for this to be avoided, the *only* websites (and all internet media, for that matter) you could ever view would require an unlimited distribution and free manipulation license, which the vast majority of the internet does not have. Therefore, by going to any website with any sort of media, including text, video, or sound, you are guilty of copyright infringement.
      
      It doesn't fit under fair use, since the new copy is not 1) Transformative (the work is virtually identical), 2) they are not facts/ideas, but are artistic works, 3) they copy the entire work, not just a small part, and 4) you do not purchase this copy and thus potentially caused economic harm to the creater (whether they are selling it or not).
      
      The only reason the internet isn't banned by current copyright law is either because the lawmakers haven't quite figured out how computers work yet, or because the concept is so insane the legal system is willfully ignoring it. Or maybe because there's so much money in suing people they don't want to destroy the internet, just rip people off for using it.
      
      I can imagine you're thinking that description is dumb, or false, or there's something wrong with it. Bingo. You just figured out why the people on this website don't like copyright laws as they currently exist.
      
      Welcome to the club.
      [ link to this | view in chronology ]
      - Anonymous Coward, 5 Apr 2013 @ 7:28am
        
        Re: Re: Re: Re:
        By visiting the website, your computer made at least two unauthorized copies, according to current copyright law.
        
        I can't believe this post got marked as "insightful" since it's total baloney. I have an implied license to access this site, and all incidental copies are covered in that license. You're truly desperate and clueless if you think reading the articles on TD makes someone an infringer.
        
        Welcome to the club.
        
        The club of FUD-spreading malcontents? No thanks. The club of Mike Masnick, Mr. Opinionated, who is somehow completely unable to discuss his views of copyright directly? No thanks. I belong to the Club of Truth, Honesty, and Understanding.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Apr 2013 @ 7:59am
        
        Re: Re: Re: Re: Re:
        Hypocrisy at its finest.
        
        You're a lawyer. Truth, honesty and understanding aren't something your profession can lay claim to, despite all claims to the contrary.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Apr 2013 @ 6:12pm
        
        Re: Re: Re: Re: Re:
        Club of Truth, Honesty and Understanding? Ah, like John Steele does!
        [ link to this | view in chronology ]
    - Greevar (profile), 4 Apr 2013 @ 1:17pm
      
      Re: Re: Re:
      It must be exhausting to keep moving that goal post.
      [ link to this | view in chronology ]
      - Anonymous Coward, 4 Apr 2013 @ 4:07pm
        
        Re: Re: Re: Re:
        It would probably be easier if they just copied and then pasted the goal post.
        [ link to this | view in chronology ]
- vastrightwing, 4 Apr 2013 @ 9:55am
  
  Re: I'll answer your question
  I don't think copyright should exist. Let me repeat. I don't think copyright should exist. I rely on my own IP for my work, yet I still think copyright is bad. I can't think of any scenario where it benefits society. Sure, it may benefit the people who use copyright as a business model, but it in no way benefits society. If you don't think society should be open, then I'm wrong and copyrights should be extended.
  Copyright has only served to protect the first players. All others to follow are harmed and ultimately society is harmed if for no other reason than costs go up. A government granted monopoly, no matter how it is achieved causes scarcity and higher prices. Again, I reiterate. A government granted monopoly, no matter how it is achieved causes scarcity and higher prices.
  I survive because after I've created something, I move on and create new work. I don't worry about being ripped off at all. Each time I create something new, I get paid and I move on. Unlike copyright maximalists, I don't try to protect my IP, in fact, my IP was learned by others. Instead, I give back by making it possible for others to build on my work. My execution is not copyrightable anyway.
  Maximizing copyright is bullying, plain and simple. Corporations can plan their business without copyright. In fact, it's easier. No lawyers to pay. No time consuming courts to worry about. If you fail, get up and start over. If you succeed, great! Innovate again. Stop whining about copyright and patents too! You sound like sore losers who are only one trick ponies.
  [ link to this | view in chronology ]
  - Greevar (profile), 4 Apr 2013 @ 1:20pm
    
    Re: Re: I'll answer your question
    Wait, you mean to say that the value is in your labor rather than your expressions?! Madness!
    [ link to this | view in chronology ]
- Anonymous Coward, 4 Apr 2013 @ 12:03pm
  
  Re:
  Which copyright? The one originally planned by the founders or the one today? I mention this because they are two wildly different beasts.
  
  I personally am in favor of copyright in as much the authors get paid for their efforts. A few years, as originally presented, seems fair.
  
  The current form of copyright is very, very, very long and frankly seems overboard in scope. Also, the part where the public gets the material for it's free use after the period of copyright has expired (That is part of the deal the government makes with the authors.) seems to have been deliberately faded from view.
  
  I wont speak for Mike but my own impression of copyright is that while it was intended to be fair to the authors and the public, it is no longer.
  
  So, the concept of copyright appears fine. The way it is currently being implemented is no longer fair in scope and is draconian in use.
  
  Can you better refine your question?
  [ link to this | view in chronology ]
Anonymous Coward, 4 Apr 2013 @ 8:07am

First, this is a clear case of using copyright to censor, rather than for any legitimate purpose of copyright (it's like the University needed the incentives of copyright to develop this survey).

First, this is a clear case of using copyright to censor, rather than for any legitimate purpose of copyright (it's unlike the University needed the incentives of copyright to develop this survey).

Fix that for you.
[ link to this | view in chronology ]
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out_of_the_blue, 4 Apr 2013 @ 8:37am

"And yet, the maximalists tell us..."
Not even a strawman, just lazy innuendo, blaming routine institutional tyranny on copyright. He even admits it's a mis-use, but Mike's only purpose here is to attack copyright. -- According to Mike, tyranny didn't exist before the oppressive copyright regime, nor is there any other current tyranny to rival it. Truly a mania, it's the only evil that he can see in the world.

It's the the shameless hyperbolic dishonesty which makes me oppose Mike for reasons beyond that he's wrong on nearly everything, besides an Ivy League weenie. -- Even when I WANT to agree with Mike, his last sentence often has a poison pill like the above so that I can't.
[ link to this | view in chronology ]
- Zakida Paul (profile), 4 Apr 2013 @ 8:39am
  
  Re: "And yet, the maximalists tell us..."
  "According to Mike, tyranny didn't exist before the oppressive copyright regime, nor is there any other current tyranny to rival it."
  
  According to people like you, culture did not exist before copyright.
  
  Two can play at that game, dumbass.
  [ link to this | view in chronology ]
- Anonymous Coward, 4 Apr 2013 @ 8:47am
  
  Re: "And yet, the maximalists tell us..."
  "... blaming routine institutional tyranny on copyright"
  
  Wrong as usual, boy.
  It's blaming routine institutional tyranny USING copyright.
  Try to get the facts you're whining about straight, kid.
  [ link to this | view in chronology ]
- Anonymous Coward, 4 Apr 2013 @ 8:50am
  
  Re: "And yet, the maximalists tell us..."
  On the rare occasions you even present coherent arguments, your constant ad hominem attacks just undermine your own already non-existant credibility.
  
  This must be a US politician/legal thing, nobody anywhere respects an ad hominem attack, yet I keep seeing them used in attempts to discredit.
  [ link to this | view in chronology ]
  - John Fenderson (profile), 4 Apr 2013 @ 9:10am
    
    Re: Re: "And yet, the maximalists tell us..."
    It's because that's all he's got. His hyperbolic rhetoric doesn't actually sway anybody, whether in the US or not. The point of those comments is simply to derail the conversation altogether.
    [ link to this | view in chronology ]
    - AC Unknown, 4 Apr 2013 @ 11:21am
      
      Re: Re: Re: "And yet, the maximalists tell us..."
      I think it's time Mike dropped the banhammer on OOTB.
      [ link to this | view in chronology ]
      - Rikuo (profile), 4 Apr 2013 @ 11:26am
        
        Re: Re: Re: Re: "And yet, the maximalists tell us..."
        Even if Mike wanted to (and I remember him stating several times he doesn't), he can't. OOTB doesn't have a signed in profile like myself.
        Either Mike allows only signed in profiles to comment, thus losing anonymous commentators, or he tries blocking by IP address, which would undoubtedly block someone else's access to Techdirt (for all we know, OOTB shares his computer(s) with someone who is an avid fan of Techdirt).
        [ link to this | view in chronology ]
- Rikuo (profile), 4 Apr 2013 @ 8:51am
  
  Re: "And yet, the maximalists tell us..."
  That's odd, I could've sworn Mike is a well-educated man, and well aware of such tyrants as the Roman emperors, to name one example, who all pre-dated copyright by well over a thousand years.
  So tell me...where did you get the insane notion that Mike said tyranny didn't exist before copyright? Or that it's the only evil he ever sees? Lemme guess...you forgot your meds and your ass was talking to you again, wasn't it?
  [ link to this | view in chronology ]
  - Chosen Reject (profile), 4 Apr 2013 @ 9:09am
    
    Re: Re: "And yet, the maximalists tell us..."
    That's odd, I could've sworn Mike is a well-educated man
    That's the problem blue has with Mike. He's always complaining the blue went to an Ivy-League school. I'm not much of one to think you need an Ivy-League education to be intelligent, and neither do I think having an Ivy-League degree necessarily means you are educated, but I still think it's a good sign of an education. Blue thinks an Ivy-League education is a problem. Perhaps he got rejected by Harvard and laughed at by Brown or something.
    
    Blue's a liar and a hypocrite who thinks "Hitler did a lot of good". He claims to be a populist yet sings the praises of the penultimate fascist. He claims to be against large corps but supports government granted monopolies. He claims to be intelligent yet can't consistently form a coherent thought.
    
    Now blue, ignore my valid points, and think these thoughts; Hitler, liar, hypocrite.
    [ link to this | view in chronology ]
    - Chosen Reject (profile), 4 Apr 2013 @ 9:37am
      
      Re: Re: Re: "And yet, the maximalists tell us..."
      Whoah, I screwed that one up.
      Blues's always complaining that Mike went to an Ivy-League school
      FTFmyself. Guess that proves I didn't go to an Ivy League school.
      [ link to this | view in chronology ]
    - art guerrilla (profile), 4 Apr 2013 @ 11:43am
      
      Re: Re: Re: "And yet, the maximalists tell us..."
      1. i'll leave this here:
      you can always tell a harvard man, you just can't tell him much...
      
      2. the ly'in-est, scam'in-est, cheat'in-est bunch of ne'er-do-wells i've ever run across, were a bunch of coke-snortin' harvard student-athletes who i worked with... great fun, but the ly'in-est, scam'in-est, cheat'in-est bunch of people i have EVER been around... the more i see of our superiors from those schools, the less i respect those schools...
      
      3. second your thoughts on li'l boy blue in the face: on the one hand he comes out with ultra-populist, anti-korporate rants, then in the next breath undermines his whole argument...
      
      art guerrilla
      aka ann archy
      eof
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- Anonymous Coward, 4 Apr 2013 @ 8:54am
  
  Re: "And yet, the maximalists tell us..."
  Wait a second... is your comment "Copyright isn't so bad because there are worse things in the world?"
  I hate that copout excuse. Are there worse things that need fixing? Absofreakinlutely. Does that mean we should let this problem continue unchecked because a child in Africa is starving? No.
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  - Greevar (profile), 4 Apr 2013 @ 1:25pm
    
    Re: Re: "And yet, the maximalists tell us..."
    But if we fix copyright/patents, we might be more free to feed that child in Africa (e.g. Monsanto).
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- Anonymous Coward, 4 Apr 2013 @ 9:57am
  
  Re: "And yet, the maximalists tell us..."
  tyranny didn't exist before the oppressive copyright regime, nor is there any other current tyranny to rival it.
  
  On a tech news blog you really expect news about tyranny of the past, and/or tyranny of the non-technical?
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- DannyB (profile), 4 Apr 2013 @ 10:34am
  
  Re: "And yet, the maximalists tell us..."
  OOTB bloviated:
  
  According to Mike, tyranny didn't exist before the oppressive copyright regime, nor is there any other current tyranny to rival it. Truly a mania, it's the only evil that he can see in the world.
  So your public service announcement is basically saying:
  
  Hey, in addition to copyright, the world has other forms of evil too.
  
  If you don't address other non-copyright forms of evil, then you should not be talking about my favorite form of evil known as copyright.
  
  There's no point trying to make the world better if you cannot make it perfect.
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Michael, 4 Apr 2013 @ 8:45am

New Law
We need a law passed that forces the retirement of every legal professor that teaches at a university any time a university make a completely bogus legal department.

We would either have less of this garbage, or less lawyers. Either seems like a win.
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Sneeje (profile), 4 Apr 2013 @ 8:46am

Did the university register the copyright on their survey?
Because that would severely limit what they can sue over, no?
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- E. Zachary Knight (profile), 4 Apr 2013 @ 8:50am
  
  Re: Did the university register the copyright on their survey?
  They can still sue over real damages, just not statutory. But since they probably weren't selling the survey or otherwise making money off it, they wouldn't be able to win any kind of award.
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  - Sneeje (profile), 4 Apr 2013 @ 8:59am
    
    Re: Re: Did the university register the copyright on their survey?
    That's kind of what I was thinking--it would be a real hoot to hear what their "accounting" of real damages would be.
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Anonymous Coward, 4 Apr 2013 @ 8:58am

Quick survey:
Did the University go too far in their actions?

Do you think the person(s) who started this threat of copyright infringement should be reprimanded?
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- John Fenderson (profile), 4 Apr 2013 @ 9:12am
  
  Re:
  yes, and yes.
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- Sneeje (profile), 4 Apr 2013 @ 9:13am
  
  Re:
  Yes and yes. My three year old even does a better job of dealing with obnoxious older brothers and somehow doesn't resort to childish threats like this.
  
  1) it's an empty threat and there's no way they don't know that
  2) it's behavior intended to intimidate
  3) it offers no acknowledgement of any actual problem
  4) it makes no effort to engage with any other perspectives
  5) it does massive amounts of collateral damage to relationships with anyone involved
  
  If that isn't an irrational, emotional reaction I don't know what is.
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  - nasch (profile), 4 Apr 2013 @ 1:31pm
    
    Re: Re:
    1) it's an empty threat and there's no way they don't know that
    
    The threat is of incurring large legal fees. That's not empty.
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    - Sneeje (profile), 4 Apr 2013 @ 5:51pm
      
      Re: Re: Re:
      That is true--I meant the likelihood of succeeding on the merits, but that is irrelevant if the defendants have to spend thousands to get to that point.
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- AC Unknown, 4 Apr 2013 @ 11:22am
  
  Re:
  Yes, and yes. It's that simple.
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Anonymous Coward, 4 Apr 2013 @ 9:01am

the biggest and best weapon the accusers have is the fear the defendants have of legal costs. why else do you think congress wont put anything into the law that penalises those that issue false takedowns or similar? for one thing, they would lose a lot of the 'campaign contributions' they get at the moment. for another, it would level the playing field and God forbid the people having the same chance of getting money as the friends of Congress, eh?
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- DannyB (profile), 4 Apr 2013 @ 10:40am
  
  It may be unfair, but at least it is fair
  > the biggest and best weapon the accusers have
  > is the fear the defendants have of legal costs
  
  Ah, but the system is fair in that it allows both the rich and the poor alike to spend vast amounts of money, even several man-lifetimes worth, to defend against bogus legal threats that cost very little to make.
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Anonymous Coward, 4 Apr 2013 @ 9:59am

When people don't fight back the bad guys win.

Every time you don't fight back against abuse of the system you lose a piece of yourself.

And it is truly sad that copyright is rigged to make it very, very hard to push back, that is true to all monopolies, this is what you get when you allow politicians to grant monopolies to others.

The thing I just can't wrap my head around is how people allow courts and politicians to create markets, they are not good at it, they should not be involved at all, what do courts and politicians know about business and economics?
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Watchit (profile), 4 Apr 2013 @ 11:50am

Wow, must of been pretty bad at that university to result in a no confidence vote. The administration at my school is bad, but not that bad!
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Anonymous Coward, 5 Apr 2013 @ 6:54am

Let's be clear on the matter, Saint Louis University is claiming copyright on the idea of doing a survey.
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Anonymous Coward, 7 Apr 2013 @ 2:29am

Copyright as censorship?
This may be a late comment.

But by reading the comments and how Copyright has been going so far. Here is what I like to say: Any form of restriction from Copyright, aka current Copyright law is Censorship. Even if it was abused to the main current system.

I'm not sure what Mike's "final" thing is, but I think I heard somewhere that the Original copyright (The less restricted or non restricted one) was gone and replaced by our current anti-freedom Copyright for so long now. And I think some people are wanting to fix Copyright (When Copyright wasn't so bad I think.)

As we all probably hope, maybe Mike's someday final thoughts won't be for any censorship or would think it's not censorship, but who knows. We may have to wait or he may never tell. Oh wait I heard he did tell if I heard correctly, wonder what it was?

As for Fair Use, I think it should apply the right to download the basic stuff like picturs, articles, etc for personal use. And the right to back up. If not,then screw (C)ensorship even more. And I hope there will someday be more rulings for the right of this in our homes soon.
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Anonymous Coward, 8 Apr 2013 @ 6:06am

Sony's Betamax VTR is a mechanism consisting of three basic components: (1) a tuner, which receives electromagnetic signals transmitted over the television band of the public airwaves.... 464 U. S. at 422, emph. added.

The lengthy trial of the case in the District Court concerned the private, home use of VTR's for recording programs broadcast on the public airwaves without charge to the viewer. No issue concerning the transfer of tapes to other persons, the use of home-recorded tapes for public performances, or the copying of programs transmitted on pay or cable television systems was raised.

The District Court concluded that noncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted works, and did not constitute copyright infringement. It emphasized the fact that the material was broadcast free to the public at large, the noncommercial character of the use, and the private character of the activity conducted entirely within the home. 464 U. S. at 425, emph. added.

Moreover, when one considers the nature of a televised copyrighted audiovisual work, see 17 U.S.C. � 107(2) (1982 ed.), and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge.... 464 U. S. at 449

The putative fair use considered, and approved of, in Betamax was the recording of free, off the air broadcasts.

If you want to claim that duplication from an unauthorized source is fair use, that's fine. But that position is the deviation from the fact pattern in the seminal case, and not the other way around.

You know what fair use was approved in Napster? "Permissive reproduction by either independent or established artists is the final fair use claim made by Napster. The district court noted that plaintiffs did not seek to enjoin this and any other noninfringing use of the Napster system...." 239_F3d_1004, sect. 3c, emph. added. It's non-dispositive dicta, but still relevant.

Your complaint from the start was that these were "weird" claims disregarding existing precedent. Once again, what precedent were you referring to? If there's a court case that supported fair use of based on an unauthorized copy, cite it. The well-known AV copying fair use cases have a pretty clear split: the cases which approved fair use involved authorized sources, and the cases for stereotypical pirated sources were disapproved.
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