MPAA Pretends To Be A Regular Defender Of Fair Use; The Evidence Suggests Otherwise

from the a-more-detailed-history dept

Fri, Apr 19th 2013 8:17am — Mike Masnick

We recently wrote about a case in which the MPAA signed onto an amicus brief arguing in favor of fair use, noting that it wasn't something you saw everyday (even if the MPAA just signed onto a brief written by some Stanford fair use experts, rather than writing its own brief). We saw lots of folks in the copyright world express surprise at the MPAA speaking out in favor of fair use, given the their general distaste for fair use. Because this is the MPAA we're talking about, it couldn't leave well enough alone, and decided to respond, with a silly blog post pretending that the MPAA has long been a champion of fair use, and that there's nothing out of the ordinary in it defending fair use. The blog post, written by lawyer Ben Sheffner is hilariously entitled MPAA and Fair Use: A Quick History. And, boy, it is quick. So quick it leaves out quite a bit of the MPAA's "history" on fair use, and presents a rather inaccurate, misleading and one-sided portrayal of the MPAA's decades-long war against fair use. And, contrary to Sheffner's claims, the MPAA has not just argued that "piracy" is not fair use, but plenty of other things that most of us -- and the courts -- have, thankfully, determined were absolutely fair use.

So, in the interest of accuracy (which we're sure the MPAA really intended as well), we thought we'd perhaps supplement the MPAA's history with some of the stuff Sheffner apparently "missed" in his all-too-quick "history" lesson. In researching this, I reached out to more than half a dozen copyright lawyers. Amazingly, each one sent back different examples of the MPAA fighting hard against fair use (there was plenty of overlap, but each one had a bunch of examples that no one else had) suggesting just how widespread the MPAA's fight against fair use tends to run. Frankly, the list got so long that I'm only providing the highlights here. A complete recapping of the MPAA's war on fair use would simply take way too long.

Basically, the short summary of the MPAA's position might be summarized as "when people sue us, we believe strongly in fair use. Otherwise... not so much." Or, even shorter: fair use for me, but not for thee. Sheffner lists out five cases, all of which involved an MPAA member as a defendant. While he claims that it's not at all unusual for the MPAA to argue fair use, and that there's nothing surprising about its amicus filing, it is a rare case where the MPAA files an amicus brief in support of fair use. Normally, its amicus briefs related to fair use go very much in the other direction. Or, it's the aggressor and the plaintiff arguing against fair use.

Let's start with the big one: Sony vs. Universal Studios, better known as the Betamax case, in which the movie studios tried to kill the VCR. The case was brought by a bunch of MPAA members, who argued that time shifting was copyright infringement and the VCR should be illegal for facilitating time shifting. The MPAA also filed an amicus brief in that case, in which it states:

The Motion Picture Association has never acquiesced in the view that home videocopying is a fair use. An argument to the contrary in one of the amicus briefs is mistaken.

Note that even the choice of language is incredible, suggesting that the MPAA itself must approve something as fair use before it is. It later argues that there can be no fair use in time shifting because nothing creative has happened:

The home videocopyist makes no independent or creative effort; he contributes nothing to advance science or culture. He merely chisels -- by making a copy for nothing. That is not fair use.

I guess that this is the "anti-piracy" situation the MPAA meant in its blog post last week, huh? By the way, as a point of reference, four years after the MPAA's Jack Valenti declared the VCR "the Boston Strangler" to the movie industry, the MPAA studios made more income from VCR movies than they did from the box office. How the MPAA still has any credibility on these sorts of things is beyond me.

Speaking of the MPAA's Jack Valenti, back in 2003, he gave an interview to a publication at Harvard where he, quite incredibly, insisted that fair use did not exist in copyright law.

What is fair use? Fair use is not a law. There's nothing in law.

Yes, Jack Valenti apparently was denying the existence of 17 USC 107. Because the MPAA is such a regular "defender" of fair use, right?

Moving on. In 2006, the MPAA argued against fair use in an amicus brief filed in Perfect 10's case against Google for showing thumbnail images in its image search product. Yes, the MPAA didn't want an image search engine to be able to show images. Great guys, those MPAA lawyers. First, it argued that even if you don't host the content, but merely embed/link to an original, you should be held liable. Second, it argued that Google could violate the "distribution" right, even if no works were actually disseminated. And then, finally, they argued that showing thumbnails for the purpose of search was not transformative From that brief:

No matter how socially beneficial Google's search engine may be in general, the activity at issue in this case -- making unauthorized copies solely to direct users to other unauthorized copies -- hardly deserves the label "transformative."

That's the good old MPAA we know. Even if it's socially beneficial, it must be against the law because it might hurt our business model. Elsewhere, it attacked the rest of the four factor analysis, even arguing, ridiculously, that thumbnail images hurt "the market" for the original images.

Okay, how about the lawsuit against DVR pioneer ReplayTV? There, the various studios who make up the MPAA sued about another VCR-like technology and sought to chip away at fair use, yet again, arguing that a DVR is entirely different from a VCR, and fair use shouldn't apply.

Copying a copyrighted program or film with a digital video recorder is a violation of the exclusive rights of the copyright owner under Section 106 of the Copyright Act. Such copying is entirely distinguishable from the type of copying which, in narrow and different circumstances, might be defended as a fair use.

Yup. DVR: not fair use, according to "long term defenders of fair use," the MPAA. Throw out your Tivos.

Next up on the list: backing up your DVDs. When RealNetworks released RealDVD, a complex and convoluted system to let people back up their DVDs, while still keeping DRM included, the MPAA studios still sued and argued that Real's reliance on fair use was inapplicable:

Real cannot rely on the alleged "fair use" defense that consumers can make copies of DVDs to avoid liability for trafficking in a circumvention product.... As the Second Circuit held, the plain language of the "DMCA targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred.".... the "DMCA does not have a 'fair use' exception."

Not done yet. How about the famous Hathitrust case involving a bunch of university libraries, scanning their collections to build a giant index for the sake of academic research. Most people would think this is an obvious case of fair use. But not the MPAA. From its amicus brief, we learn that this all just a vast piracy conspiracy, so fair use cannot apply.

The district court’s very brief discussion of the third factor simply observes that because the defendant’s purpose was making and distributing copies of whole works, copying of entire works was necessary. Defendants who copy whole works will almost always be able to argue that doing so was necessary to their purpose. Surely in a case involving the most massive, systematic copying of copyrighted works in history, the district court should have addressed whether the amount and substantiality of the copying was really justified.

Next up? What about individual books? That close cousin of movies? Well, fair use may be important in movies, according to the MPAA, but don't expect it to stand up for fair use in books. In fact, it will come out vehemently against fair use in books. For example, it filed an amicus brief in the Salinger v. Colting case, in which JD Salinger claimed that Fredrik Colting had violated his copyright by writing an unauthorized sequel to The Catcher in the Rye. For many of us, this was an open and shut fair use case. Colting had not copied the expression of Salinger at all, but rather just the idea. But, to hear the MPAA tell it, fair use has no purpose in such story telling. In effect, they argue that all fan fiction must be infringing

In evaluating the fair-use defense, the Court should reject attempts to overly expand, or give disproportionate weight to, the fair-use factor one concept of “transformative” use. Contrary to the assertions of defendants and their amici, a defendant does not meet his burden to show that an unauthorized sequel is a fair use merely by showing that it has crossed a threshold of “‘add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message,’”

Again: fair use for me, and not for thee.

It's not just in the courts that it's fighting these things either. There were a couple of court cases involving services that edited movies (generally taking out the more "R" rated stuff to make them kid friendly), and the MPAA, again argued strongly that these weren't fair use. When Congress finally jumped in and passed a law that made such family-friendly editing legal, the MPAA's Jack Valenti argued to Congress that this sort of interpretation of fair use "could jeopardize the future of copyright law and the financial well-being of one of America's most valued industries." Apparently fair use was going to destroy all of copyright law and the financial well-being of Valenti's own industry. That hasn't actually happened (you'll note that's a frequent result when it comes to MPAA predictions).

Other areas attacked by the MPAA? How about during the triennial DMCA review for the anti-circumvention clauses? One of the exemption requests last time around was to make it clear that it was legal to make backup digital copies of your DVDs. The MPAA actually argued that such an obvious fair use should not be considered fair use, because it messed with their business model.

How about over in the UK, where a few years back, there was the Hargreaves review -- a comprehensive look at potential copyright reform. A big part of that was looking at whether or not the UK should add American style fair use to their laws. In a filing for that, the MPAA argued against adding American-style fair use, saying that it would lead to too much litigation. It also mocked the idea that companies like Google rely on fair use. Finally, it pulls out one of the maximalists' favorite bullshit lines of the day: that fair use might actually be incompatible with the Berne Convention:

The compatibility of the fair use doctrine with the three-step test has recently been the subject of a good deal of scholarly commentary and controversy; but no definitive determination on that subject has ever been made. At the time the U.S. first became subject to the three-step test, when it adhered to the Berne Convention in 1989, there seemed to be no serious consideration of whether Section 107 was incompatible with Article 9 (2) of Berne. Since the mid-1990s, the WTO dispute settlement process has provided a potential forum for claims that fair use is to broad or too ill-defined an exception to satisfy the three-step test. But no such claims have ever been brought, even though there are doubtless a number of WTO members whose nationals could claim to have been injured through fair use decisions by U.S. courts that unauthorized uses of their works were “fair” and therefore sheltered by Section 107. It is worth noting that the one provision of U.S. copyright law that has been found to exceed the bounds of the three-step test, by decision of a WTO dispute settlement panel, is not Section 107, but rather Section 110 (5), a specific exception involving the public performance of music in bars and restaurants.

Of course, this argument was ably debunked by William Patry years ago, and yet the MPAA sticks to the FUD position of hinting that any other country that introduces fair use, might be violating Berne.

Of course, down in Australia, the MPAA filed a similar document late last year, concerning that country's exploration of implementing fair use. From the MPAA's filing:

Since it is inconceivable that, as part of any new system of copyright exceptions in Australia, its courts would be directed to slavishly follow U.S. precedent, it is inescapable that there would be considerable uncertainty about the resolution of claims based on the new system in Australian courts. This is likely to create a deleterious level of unpredictability for copyright owners, copyright users, and the public. Whatever social benefits might fairly be attributed to the fair use doctrine under U.S. law would be unlikely to survive the passage across the Pacific to Australia.

Related to this, we've heard from multiple sources that when the USTR actually decided to put a recognition of the right for countries to include the rights of the public like fair use in the TPP, the most vigorous protests came from... the MPAA, supposed defenders of fair use. Of course, since the USTR keeps all of that stuff secret, we'll have to note that claim is just well-sourced speculation.

In the end, there are many more situations in which the MPAA has found itself arguing against fair use. The idea that they're champions of fair use is not actually supported by history. Yes, there are a few odd cases where they will defend fair use -- when their own studios have been sued. But it's difficult to find examples of the MPAA supporting fair use for anyone else. Instead, they certainly seem to like attacking fair use at every opportunity if it might help anyone else.

Betamax Amicus mpaa2 (PDF)Betamax Amicus mpaa2 (Text)

MPAA P10 v Google Amicus (PDF)MPAA P10 v Google Amicus (Text)

Studio PI Motion (PDF)Studio PI Motion (Text)

09 2878 Cv, Salinger v Colting, Brief for Amicus Curiae MPAA, Submitted 8 24 09 (PDF)09 2878 Cv, Salinger v Colting, Brief for Amicus Curiae MPAA, Submitted 8 24 09 (Text)

54 Mpaa Amicus (PDF)54 Mpaa Amicus (Text)

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Filed Under: betamax, copyright, fair use, history
Companies: mpaa

58 Comments

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Ninja (profile), 19 Apr 2013 @ 7:58am

Thankfully for the public and ironically for themselves courts didn't block those technologies that became a huge source of revenue for them eh?

The sad part is that those are the delusional people lobbying heavily to screw up the public yet again via trade agreements and more draconian laws...
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Rikuo (profile), 19 Apr 2013 @ 8:21am

If I see a work that looks attractive, I will consume it. If the work is deemed to be of high enough quality (a subjective term, it is impossible to lay it out objectively, like a scientific formula), I will encourage its authors to create more works through financial compensation.
What I do not stand for is being bullied into paying money beforehand, or of being bullied into only having devices and services that are less useful and heavily restricted (Blu-rays are or were a fantastic medium storage, but were killed in the marketplace thanks to overly-draconian copyright restrictions. I still remember with horror the day I bought a Blu-ray drive for my PC but then discovered, after installation, that I would need to pay for software to read the BR movies I had already paid for...which is something I didn't need to do with DVDs).
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Zakida Paul (profile), 19 Apr 2013 @ 8:24am

They do defend fair use
When it is in their interests.

The rest of us can go and jump as far as they are concerned.
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Ima Fish (profile), 19 Apr 2013 @ 8:31am

"Speaking of the MPAA's Jack Valenti..."

I still remember reading that statement. Did Jack ever explain himself? I've looked, but I have been unable to find anything. I can't believe that in all the subsequent interviews he did not one "journalist" ever called him on that BS.
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Rikuo (profile), 19 Apr 2013 @ 8:34am

Might as well do a bit of free advertisement - I want this game, because it looks to be the funnest game I have ever seen
Thank you NerdCubed!
https://www.youtube.com/watch?v=hYLPHa-4sUs
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- Robert (profile), 19 Apr 2013 @ 8:57am
  
  Re:
  You just made half my office stop working and laugh hysterically.
  
  I am so getting this game!
  
  My aunts and cousin are all nurses, as are our long-time family friends. I'm going to have so much fun with this at Xmas.
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  - Rikuo (profile), 19 Apr 2013 @ 9:14am
    
    Re: Re:
    At the end, if you complete all the missions you access a special hidden bonus level
    Surgery.
    In Space.
    
    WITH ZERO GRAVITY.
    
    P.S. I apologize for making your brain and heart explode in sheer excitement
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- Anonymous Monkey (profile), 19 Apr 2013 @ 10:23am
  
  Re:
  OMG ... that is HILARIOUS!!!!
  [ link to this | view in chronology ]
- twilightfog, 19 Apr 2013 @ 11:58am
  
  Re:
  This is the funniest video I've watches in ages ! There is another one where this guy plays a balloon race game, the balloon descends on an island and he jumps off before it touches ground, and the balloon flies away ! As he chases after the balloon, the ending commentary is like "I learnt a lesson today, I weigh too much".
  [ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 19 Apr 2013 @ 8:43am

SO, Mike: Time for you to put the "right" in copyright.
FIFTEEN YEARS, and you've NO position! -- By the way, disclaimers: yes I skimmed this, easy to see where Mike is going; and no, I don't disagree that the MPAA is at times evil, BUT that still doesn't make Mike right! -- And yes, I've READ his so-called position: ALL he sez it that needz more studiez.

Let's hear more from Mike than just his trademark complaining. You can't fight something with nothing. We need REAL proposals from the self-appointed expert. Mike is leading you on a snipe hunt, then leaving you out in the dark and cold just WHINING.

Take a loopy tour of Techdirt.com! You always end up same place!
http://techdirt.com/
Mike's fanboy-trolls imitate him by taking no position except the pejorative.
04:43:32[f-850-5]
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- S. T. Stone, 19 Apr 2013 @ 8:51am
  
  Re: SO, Mike: Time for you to put the "right" in copyright.
  trademark
  
  No no, you mean �copyrighted�. At least get which part of IP laws you want to address right.
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- Zakida Paul (profile), 19 Apr 2013 @ 8:53am
  
  Re: SO, Mike: Time for you to put the "right" in copyright.
  Oh dear
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- Anonymous Coward, 19 Apr 2013 @ 9:00am
  
  Re: SO, Mike: Time for you to put the "right" in copyright.
  ""You can't fight something with nothing.""
  
  Says the guy who has so far not come up with something at all.
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- crade (profile), 19 Apr 2013 @ 9:01am
  
  Re: SO, Mike: Time for you to put the "right" in copyright.
  What makes Mike right is that he is reporting straight verifiable facts here.. Where he's going is informing people of those facts and providing references to verify them.
  
  Although he has made some suggestions in other articles, he doesn't have to do everything. There is nothing wrong with providing the information to help others can help come up with better plans either.
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  - Zakida Paul (profile), 19 Apr 2013 @ 9:08am
    
    Re: Re: SO, Mike: Time for you to put the "right" in copyright.
    Blue has been spoon fed all his life so he does not understand the concept of being given just the facts and forming his own opinions.
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- Tom, 19 Apr 2013 @ 9:26am
  
  Re: SO, Mike: Time for you to put the "right" in copyright.
  Wait, so Mike gets FIVE lawyers to respond to this question. The lawyers are the experts, and he does not in any way try to trick the reader into believing that the information is not coming from lawyers. Only someone who skimmed the article and missed the introduction can come to such a weak conclusion. Luckily the pejorative comes straight from "out_of_the_blue" today.
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- Anonymous Coward, 19 Apr 2013 @ 9:27am
  
  Re: SO, Mike: Time for you to put the "right" in copyright.
  So instead of criticising the MPAA like you claim to do you'd rather attack Masnick. And you wonder why nobody takes you seriously.
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Anonymous Coward, 19 Apr 2013 @ 8:46am

Utterly laughable.

The MPAA is a "defender" of fair use in the exact same way that Mothers Against Drunk Driving is a "defender" of drunk driving.
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- crade (profile), 19 Apr 2013 @ 9:07am
  
  Re:
  Except MADD doesn't try to trick people into thinking that they defend drunk driving
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crade (profile), 19 Apr 2013 @ 8:51am

The MPAA *HAS* only argued that piracy is not fair use.. They just left out:
PS: Everything anyone but us thinks is fair use is actually piracy.
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Anonymous Coward, 19 Apr 2013 @ 9:07am

All of your examples are pretty dumb, and this article reflects your personally hostility to rightholders and copyright more than anything else. This "gotcha" stuff is really childish.

Let's look at the first one, the Sony Betamax case. The district court found that it was fair use. The Ninth Circuit reversed, finding that it was NOT fair use. "It is our conviction that the fair use doctrine does not sanction home videorecording." Universal v. Sony, 659 F.2d 963, 971 (9th Cir. 1981). The Supreme Court was then split 5-4 on the fair use issue, with the majority finding that it was fair use and the minority finding that it wasn't. Said the minority: "Accordingly, even under the formulation of the fair use doctrine advanced by Sony, time-shifting cannot be deemed a fair use." Sony v. Universal, 464 U.S. 417, 486, (1984) (Blackmun, J., dissenting).

But if you add the judges who said that it was (1 in the district court and five in the Supreme Court), then it's 6, and if you add the judges who said it wasn't (3 in the Ninth Circuit and 4 in the Supreme Court) then it's 7 that it's not. The point is, the argument that it's not fair use clearly has merit, as does the argument that it is. Both sides had a meritorious argument, so it's stupid as all fuck to pretend like the MPAA was being ridiculous with their argument.

Another point I think you gloss over is that the majority did not say that all home videotaping is fair use. It limited its holding to certain types of uses. So not even the majority thinks that it's all fair use, which just reinforces the MPAA's view that it's not all fair use. It's not. The fact is that both sides have merit and you're being your typical douchehat self with your typical 12-year-old "na na na na" posts.
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- Tom, 19 Apr 2013 @ 9:20am
  
  Re:
  The current argument of this one lawyer at the MPAA is that they are longstanding supporters of fair use, yet the example you are providing does not in any way show that MPAA supported fair use. Furthermore, the Supreme Court, which ruled in favor of fair use in that example case, ruled against the MPAA. The MPAA only believes that fair use is a valid argument if the fair use is their own party. They have never once filed an amicus brief for a party that is not paying them money with the position that that party is correct in claiming fair use.
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  - Anonymous Coward, 19 Apr 2013 @ 10:39am
    
    Re: Re:
    The current argument of this one lawyer at the MPAA is that they are longstanding supporters of fair use, yet the example you are providing does not in any way show that MPAA supported fair use.
    
    No, it shows that they don't think that time-shifting is fair use, which is a perfectly reasonable and meritorious position to have. That doesn't mean they don't support fair use generally. It just means that they don't think that particular activity is fair use.
    
    Furthermore, the Supreme Court, which ruled in favor of fair use in that example case, ruled against the MPAA.
    
    Yes, as I indicated, it was 5 to 4. Four Justices thought it was not fair use, and five Justices thought that it was. This shows how meritorious the MPAA's position was.
    
    The MPAA only believes that fair use is a valid argument if the fair use is their own party. They have never once filed an amicus brief for a party that is not paying them money with the position that that party is correct in claiming fair use.
    
    Citation needed.
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    - Ninja (profile), 19 Apr 2013 @ 10:47am
      
      Re: Re: Re:
      That doesn't mean they don't support fair use generally.
      
      Every single new technology and service receives the same treatment. Almost every stance a sane person would agree that it's fair use with very little few exceptions receive the same treatment. That you think they are right doesn't make it true.
      
      Yes, as I indicated, it was 5 to 4. Four Justices thought it was not fair use, and five Justices thought that it was. This shows how meritorious the MPAA's position was.
      
      Millions think file sharing is ok. This shows how meritorious the public position is. See, it doesn't stick. Some judges bought the argument, the majority in each stance didn't.
      
      Citation needed.
      
      Are you seriously saying that after reading this article? Would you please cite any stance where the MAFIAA filled any amicus brief in any cases they had no vested interest? We'll be waiting.
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- Chosen Reject (profile), 19 Apr 2013 @ 9:34am
  
  Re:
  You're adding judges from different levels? Really? The MPAA lobbied heavily to have congress change the law. Congress never did. So I guess that makes hundreds on the side of fair use and only 7 against. Also, given the fact that members of the MPAA, congress, and many judges have used the VCR to home tape, I'd add an even larger number of people to that fair use side. Or maybe they're all just pirates as you propose?
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  - Anonymous Coward, 19 Apr 2013 @ 10:36am
    
    Re: Re:
    You're adding judges from different levels? Really?
    
    Yes, to show that a majority of judges that looked at it thought it wasn't fair use, ergo, the argument that it's not fair use is quite meritorious.
    
    Also, given the fact that members of the MPAA, congress, and many judges have used the VCR to home tape, I'd add an even larger number of people to that fair use side.
    
    Citation needed.
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    - Ninja (profile), 19 Apr 2013 @ 10:51am
      
      Re: Re: Re:
      Citation needed.
      
      https://en.wikipedia.org/wiki/Bootleg_recording
      
      Your turn.
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    - Chosen Reject (profile), 19 Apr 2013 @ 11:43am
      
      Re: Re: Re:
      How about this? Or are we to believe that members of the MPAA will circumvent copy protection measures (violation of 17 USC � 1201), and copy and distribute those copies (which is infringement, not fair use), but would absolutely not use ubiquitous devices like VCRs and DVRs because they believe it's not fair use?
      
      Plus, you conventiently ignored that the MPAA did lobby congress to change the law to make VCRs illegal, and yet Congress didn't. Ergo, congress agreed with your "six" judges, making those in favor of it being fair use hundreds.
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- Anonymous Coward, 19 Apr 2013 @ 9:45am
  
  Re:
  But if you add the judges who said that it was (1 in the district court and five in the Supreme Court), then it's 6, and if you add the judges who said it wasn't (3 in the Ninth Circuit and 4 in the Supreme Court) then it's 7 that it's not. The point is, the argument that it's not fair use clearly has merit, as does the argument that it is. Both sides had a meritorious argument, so it's stupid as all fuck to pretend like the MPAA was being ridiculous with their argument.
  
  He didn't say the MPAA was being ridiculous in that argument. Just pointing out that they argue against fair use all the time.
  
  Seems dishonest for you to claim something Mike didn't say, doesn't it?
  
  Also, adding up judges from all levels? WTF? Who does that?
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  - Anonymous Coward, 19 Apr 2013 @ 10:32am
    
    Re: Re:
    Oh, Mike wrote this post to show how meritorious the MPAA's fair use arguments have been? Right. It's dishonest for you to not admit that he was saying that their argument that time-shifting isn't fair use was ridiculous. Of course he thinks it's ridiculous, and he thinks that anybody that makes that argument doesn't support fair use. Mike thinks that anyone who doesn't have his same, incredibly broad notion of fair use must not support fair use. It's so fucking dumb it hurts.
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    - Anonymous Coward, 19 Apr 2013 @ 11:13am
      
      Re: Re: Re:
      citation needed
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- Leigh Beadon (profile), 19 Apr 2013 @ 9:50am
  
  Re:
  If you add up all the creators in history, the vast majority did their work before copyright. And if you add up all the human beings in history, the vast majority never even heard of the concept of copyright.
  
  Ergo copyright supporters are a tiny, tiny minority, and only a tiny fraction of art and culture has been generated under a copyright system.
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  - This comment has been flagged by the community. Click here to show it
    
    Anonymous Coward, 19 Apr 2013 @ 10:34am
    
    Re: Re:
    And yet it's the copyrighted stuff that you filthy pirate fucktards can't get enough of. Sorry, Marcus. You should stick to mediocre rapping.
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    - Rikuo (profile), 19 Apr 2013 @ 10:51am
      
      Re: Re: Re:
      Because all stuff as soon as it is made is copyrighted the instant it is made...ergo we consume copyrighted content by default.
      
      Is that your default fall-back line? Your last "line" of defense? (get it? LOL!) Don't you have anything better to say? Come on, get creative! Something other than "filthy pirate fucktards consuming copyrighted content". You've said it ten thousand times and it doesn't mean anything.
      [ link to this | view in chronology ]
    - Ninja (profile), 19 Apr 2013 @ 10:54am
      
      Re: Re: Re:
      That's a pretty rough generalization. And while I can't say for everybody I've seen many people close to me shifting to alternative content. And I'm amazed and overwhelmed by the amount of content that you start discovering when you truly venture in that "indie" market.
      
      @Marcus: they are talking so much about your musical talent that I'm feeling inclined to check it out can you provide a link for the lazy?
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      - Leigh Beadon (profile), 19 Apr 2013 @ 11:36am
        
        Re: Re: Re: Re:
        certainly: https://soundcloud.com/marcus-carab
        
        most of the stuff is pretty old -- Techdirt keeps me very busy :) AJ is unable to comprehend the idea of making music as a hobby, though.
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        Anonymous Coward, 19 Apr 2013 @ 11:58am
        
        Re: Re: Re: Re: Re:
        Yeah, that's why I have music room at home and I play every day.
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        Anonymous Coward, 19 Apr 2013 @ 12:45pm
        
        Re: Re: Re: Re: Re: Re:
        Seriously, where do you find the time to troll Techdirt?
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        Anonymous Coward, 19 Apr 2013 @ 12:46pm
        
        Re: Re: Re: Re: Re: Re:
        It must be sad to not have anybody enjoy your music, so you have to play it alone in the dark.
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        This comment has been flagged by the community. Click here to show it
        
        Anonymous Coward, 19 Apr 2013 @ 2:02pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Why am I alone in the dark? LOL! I usually have the light on, and I'm usually not alone. Great put down, dude! You really burned me good! You're a fucking genius! Stick around. Mike needs worthless people like you to stroke his extremely delicate ego.
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        Anonymous Coward, 19 Apr 2013 @ 2:11pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        Aw someone's asshurt that no one listens to his music.
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        Anonymous Coward, 20 Apr 2013 @ 7:52am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Huh? You're going to have to do better than that. I make music for myself and my family and friends. I'm 100% perfectly happy with it. No "asshurt" in the least. Try again, dipshit. Or not. I really don't care. I just feel sorry for you. I can't imagine being as pathetic as you. I'd kill myself.
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    - Robert (profile), 19 Apr 2013 @ 11:15am
      
      Re: Re: Re:
      I've never heard Marcus' rap, but I guarantee it would be better than your arguments!
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    - Chosen Reject (profile), 19 Apr 2013 @ 12:13pm
      
      Re: Re: Re:
      Wrong. If you were to look at the hundreds of books I have on my Kindle, not a single one is copyrighted. Some never even had a copyright.
      
      Music is a bit different. For starters, they aren't on my Kindle, but I digress. Secondly, while I have lots of music that doesn't have a copyright on the composition, the symphonies that recorded them claim to have a copyright on their recordings. Unfortunately, there's just not a lot of sound recordings from the very early 1900s and late 1800s that are still usable.
      
      Movies suffer from the same fate as music even more so. That doesn't mean I don't have public domain movies though. One of my favorites is Night of the Living Dead, for example.
      
      All the other books, movies and music that I have were paid for (sometimes multiple times because I'm stupid and follow this dumb copyright law even though I don't agree with it). Does it hurt you to see that stuff might get into the public domain? Does it hurt you to see that people can disagree with a law but still follow it, meaning you can't just dismiss them as filthy pirates? I hope I haven't shattered your world view.
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    - techflaws (profile), 19 Apr 2013 @ 10:53pm
      
      Re: Re: Re:
      And yet it's the copyrighted stuff that you filthy pirate fucktards can't get enough of.
      [Citation needed]
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      - Anonymous Coward, 20 Apr 2013 @ 1:28am
        
        Re: Re: Re: Re:
        No, I say let him keep his citation.
        
        Then each and every time they want to claim piracy hurts everyone we can point out that based on his claim on the top 10% of people get their stuff downloaded.
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      - Anonymous Coward, 20 Apr 2013 @ 7:50am
        
        Re: Re: Re: Re:
        Just look at any top 10 or top 100 list of torrents. All the copyrighted stuff. That you guys dismiss copyright as unnecessary while downloading predominantly the copyright-induced stuff says it all. Total disconnect. You guys are pretty all fucking idiots. Sorry, but it's true. It's no wonder that you guys are attracted to Techdirt. This place is pirate central.
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        techflaws (profile), 23 Apr 2013 @ 5:05am
        
        Re: Re: Re: Re: Re:
        Total disconnect.
        
        Nice summing-up of your complete and utter failure to state people's viewpoints on TD. But what else to expect from jackasses who call anyone "filthy pirate fucktards" just because they don't fall for RIAA propaganda?
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- Anonymous Coward, 19 Apr 2013 @ 1:38pm
  
  Re:
  "But if you add the judges who said that it was (1 in the district court and five in the Supreme Court), then it's 6, and if you add the judges who said it wasn't (3 in the Ninth Circuit and 4 in the Supreme Court) then it's 7 that it's not.."
  
  It's not the total number of judges from different levels that counts, boy.
  It's the amount of judges at the top level that counts.
  And the ones at the top voted against you, boy.
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  - This comment has been flagged by the community. Click here to show it
    
    Anonymous Coward, 19 Apr 2013 @ 2:01pm
    
    Re: Re:
    Wow. You're some kind of legal genius. Thanks for clearing that up. Oh wait, I never said that it "counted." I merely made the point that the MPAA's argument about time-shifting was meritorious, as demonstrated by the fact that the majority of federal judges who looked at it agreed. Thanks for popping in with your stupid and creepy "boy" comment and then not even addressing the point I made while trying to correct a mistake I didn't make. And thanks again for adding nothing and proving that you're a worthless asshole.
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    - Anonymous Coward, 19 Apr 2013 @ 2:16pm
      
      Re: Re: Re:
      It's meritorious because several judges declared it to be so?
      
      So the minority declares that something has merit, and we should accept that it's good for the rest of us?
      
      I remember when I had my first beer.
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      - Anonymous Coward, 20 Apr 2013 @ 7:48am
        
        Re: Re: Re: Re:
        It's meritorious because several judges declared it to be so?
        
        Yes, the fact that several judges agreed (in fact, the majority of judges who looked at it) shows that the argument has merit. The other argument has merit as well. These things aren't black and white, and conflicting opinions can both have merit.
        
        So the minority declares that something has merit, and we should accept that it's good for the rest of us?
        
        Sometimes differing points of view both have merit. That doesn't mean that you have to think both are what's good for the rest of us. You can think one side is right and the other is wrong, but I think it's incorrect to think that the side you think is wrong doesn't have merit. Again, things like this are usually not black and white. There's nuance that people like Extremist Mike don't ever recognize or admit. It's the whole "I think one thing so anyone else who thinks otherwise is wrong and hates fair use" bullshit that I'm addressing. The MPAA supports fair use, they just don't support the ridiculously expansive version of it that Mike, who thinks pretty much everything is fair use because he hates copyright while pretending like he can't decide whether it has any merit or not, supports. That doesn't mean they don't like fair use. They do.
        
        I remember when I had my first beer.
        
        I don't. I guess it wasn't as big a deal for me as it was for you.
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Anonymous Coward, 19 Apr 2013 @ 9:10am

why not just tell it like it is? the MPAA, RIAA MAFIAA and all the rest of the (mainly) USA entertainment industries, are nothing short of being a bunch of arrogant arse holes! they want every law that they didn't write to be excluded unless they have agreed it. all the rest have to be written by them, regardless of what those laws refer to. they also want to be able to change those same laws as and when they feel like it so as to be to their advantage whenever their is a court case. as for modern technology, these industries know all about it but as they were too slow to take advantage of the torrent protocol, they now think it is the worst thing ever. had they been quicker and seen what it could do or if they in the future get the chance to use as they want it, it will be the poodles privates!! they are selfish, self-centered pricks that have a bunch of complete arse holes running them and a bunch of complete idiots (Congress!) who cant do enough to help them remain in the pre-digital, pre-internet age. one day they may wake up, smell the coffee and realise that to keep lying through their teeth and treating the very people that keep their businesses solvent, like criminals, is a very bad approach. let's hope they get the message before it's truly too late!!after all, the very things they fight against and accuse others of doing are exactly what they did to become an established industry. funny how they like to ignore that bit, isn't it??
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Gwiz (profile), 19 Apr 2013 @ 9:24am

Typo Alert
...The Cather in the Rye...
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- DH's Love Child (profile), 19 Apr 2013 @ 11:22am
  
  Re: Typo Alert
  Though in that case it should have perhaps been "Catheter in the Rye" as the publisher and estate pissed away any public goodwill.
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Violated (profile), 19 Apr 2013 @ 10:36am

Ignorance
We all know that the MPAA is against Fair Use which is why they hired some Stanford fair use experts when their own lawyers are not aware of fair use law.

Sure they defend this position all the time this case on-going but once it is over they will soon be back to pretending that fair use does not exist.
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special-interesting (profile), 19 Apr 2013 @ 12:18pm

Thanks for the well researched article about what one says and does are frequently different. Am sure the MPAA would argue differently but that might only get a laugh.

It always bugs me when an obviously disreputable special interest group somehow keeps making preposterous claims that nobody would believe if known history was checked. Its funny (skewed humor) that the MPAA publishes its own edited history. As if anything they wrote/said/did would EVER support Fair Use Rights.

MPAA (or RIAA or other copyloon (right) organization) In favor of Fair Use Rights? This has got to be propaganda at its worst/best! There has got to be some angle going on here that is not obvious. Since at other times they totally denied that Fair Use Rights did not exist how do they get off on claiming to defend it? This smacks of being two faced.

If the MPAA is in favor of Fair Use Rights then are they going to take it to task and enforce this upon their own members? What sort of hypocritical application of Fair Use Rights are they proposing anyway? (agreement) It certainly dose not mean Fair Use Rights used by others but most likely they mean Fair Use Rights for themselves. The cynicism cup runeth over.

This seems to be more of the two faced behavior one would expect from a likely corrupt special interest group. In what way does the MPAA contribute to Public Domain Rights? With eternal copymight (right) that would be never.

This recent claim they back Fair Use Rights seems hollow and flat out unbelievable. In what way does the MPAA contribute to good culture that lives and breaths the sharing of ideas/innovation/knoledge in various media formats? Can they explain how they benefit society in any way?

The expected ridiculous copyright abuses from groups like MPAA and RIAA can be summed up as antics. The behavior is so obviously bad its impossible to believe that any court or legislation discussion would even look at an opinion/study/research/literature produced by them. Just accepting this 'amicus breif' by any court would detract from such courts reliability and drop their 'good standing' a notch or two.

The MPAA and RIAA might be best evaluated on the same level as some Westburogh FL church as they are quite radical and zealous in pursuit of eternal copytight (right). Their business model seems more like an organized crime plan for eliminating any and all use of media even their own. (copyright is more akin to toxic waste contamination and your copy machine or computer are more dangerous than a bag of M80's or even a gun.)

All this nonsense is just another reason to abolish copyright altogether. Something else would be better for sure. Anything with reasonable term limits and no criminalized enforcement.
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Anonymous Coward, 19 Apr 2013 @ 12:44pm

The MPAA always supported fair use?

LoL
ROFL
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