Copyright As Censorship: University Threatens Own Faculty With Copyright Infringement For Campus Survey
from the institutes-of-higher-learning dept
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.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.
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.
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
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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
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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.
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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...
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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...
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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.
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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.
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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.
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It might help if you presented answerable questions instead of leading ones.
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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?
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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?
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And who the F are you to demand this?
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The answer to why Mike doesn't respond to you is right there for all of us to see.
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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.
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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?
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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.
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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.
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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?
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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.
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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.
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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.
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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?
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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.
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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.
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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.
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https://www.youtube.com/watch?v=sGXTF6bs1IU
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I'd post the footage, but it's copyrighted.
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Comment away. I can't stop you/don't care. I want Mike's answer, and I want his answer in public.
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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.
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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?
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I'm not heartless, you know. Just soulless.
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And there we have it. Mike's got more important things to do, and you don't.
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I was thinking 'idiot'. My lack of diplomacy means I will probably never get promoted.
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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.
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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?
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should be goody two shoes
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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:
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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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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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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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Well, to be a little more precise, what it says is:
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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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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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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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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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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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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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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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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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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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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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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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.
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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.
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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.
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What will you do then?
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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?
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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.
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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?
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Let me ask you this. Do you intentionally infringe? I mean, download Hollywood movies and the like.
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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.
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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.
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It's a bit like traffic laws -- you break them, probably every day that you drive, without even knowing it.
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If you ever sang "Happy Birthday to You" at a party in a group of more than ten people, you have infringed copyright.
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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.
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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.
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Don't use no double negatives. The word is licit.
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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.
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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.
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You're a lawyer. Truth, honesty and understanding aren't something your profession can lay claim to, despite all claims to the contrary.
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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.
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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?
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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.
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"And yet, the maximalists tell us..."
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.
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According to people like you, culture did not exist before copyright.
Two can play at that game, dumbass.
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Wrong as usual, boy.
It's blaming routine institutional tyranny USING copyright.
Try to get the facts you're whining about straight, kid.
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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.
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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).
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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?
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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.
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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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Re: "And yet, the maximalists tell us..."
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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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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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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New Law
We would either have less of this garbage, or less lawyers. Either seems like a win.
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Did the university register the copyright on their survey?
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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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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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The threat is of incurring large legal fees. That's not empty.
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It may be unfair, but at least it is fair
> 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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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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Copyright as censorship?
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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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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