God v. Copyright: Mike Huckabee Invokes Religion In Copyright Suit

from the holy-fair-use,-batman dept

Fri, Jan 15th 2016 8:35am — Timothy Geigner

Strap in, folks, because we've got quite a battle brewing. You may recall that Mike Huckabee recently found himself the subject of a copyright dispute with Frank Sullivan, a member of Survivor, over the use of the band's hit song Eye of the Tiger at a rally for the release of Kim Davis. Davis was the county clerk who asserted that her right to express her religion -- in the form of denying same sex couples the right to marry -- overrode the secular law of the land, which is about as bad a misunderstanding of how our secular government works as can be imagined. Sullivan's filing indicated that the rally was conducted by the Huckabee campaign and that the use of the song had been without permission, therefore it was an infringing use. Left out of the filing was any indication of whether the Huckabee campaign had acquired the normal performance licenses.

Based on Huckabee's response, it seems like no license was ever obtained, as Huckabee is instead claiming the use was fair use, and that the use was exempt from copyright law to begin with because the Kim Davis rally was a religious assembly.

The fair use claims are pretty simple, though I'm not sure they're particularly likely to succeed. Huckabee claims the use was non-commercial (relating back to the nature of the rally as a religious gathering), that the amount of the work he used was non-substantial (something like a quarter of the entire recorded song was used), and argues that the effect of it being played was essentially one of free advertising for the band, and so there was no harm done in the marketplace. We've seen those affirmative defenses raised in the past, with varying degrees of success, but this doesn't ring as a case where the copyright holder is reaching as far as in other cases we've covered.

And, ultimately, part of Huckabee's fair use defense - in particular that the use was non-commercial and, as Huckabee goes even further to state, had nothing to do with election campaign -- relies on the notion that the Kim Davis rally was an independent religious gathering, not any kind of campaign stop.

His campaign also invokes a rarely used limitation to a copyright owner's rights — one that exempts "performances of a nondramatic literary or musical work ... in the course of services at a place of worship or other religious assembly."

From the filing itself:

Notwithstanding the provisions of 17 U.S.C. § 106, 17 U.S.C. § 110 (3) provides in part that the performance of a nondramatic literary or musical work in the course of services at a place of worship “or other religious assembly” is not an infringement of copyright. Although not explicitly defined in the Copyright Act of 1976, the term “nondramatic musical works” refers to musical works, such as popular songs, not incorporated and performed in an opera or theater musical. Based on the averments of paragraph 7 of the Complaint, “Eye of the Tiger” is a popular song and a “nondramatic musical work” within the meaning of 17 U.S.C. § 110 (3).

The September 8, 2015, assembly for Mrs. Davis was, in view of all the surrounding circumstances, a “religious assembly” within the meaning of 17 U.S.C. § 110 (3) and the First Amendment to the Constitution of the United States.

Drink it in. The claim is a stunning one, where Huckabee, ostensibly a man who holds faith and religion in high regard, is suddenly willing to degrade the concept of a religious gathering simply to support his use of a popular song at a rally for someone he supports. One wonders exactly how the claim might work, what with the wide swath of gatherers at the rally, located outside the jailhouse for a secular government, on public land, and attended ostensibly by enough people that it strains credulity to even imagine that they might all be from one church or one faith. Nowhere is it asserted that anyone was referring to the Kim Davis rally as a religious gathering before this filing.

But think of the possibilities if the court buys this argument. Suddenly, loosely-defined religious grounds can be asserted as an affirmative defense to copyright infringement. The very idea of public performance licensing largely goes out the window, as one can imagine all kinds of gatherings suddenly proclaiming religiosity. Keep in mind that our government is not permitted to distinguish between the faiths, so any faith would do. Hell, one enterprising Techdirt writer such as myself might take up the mantle of L. Ron Hubbard and simply whip up a religion out of whole cloth, calling it the Fairusenalists, replacing the prayer rug, the eucharist, or the kippah with loudly-blasted recordings of Justin Bieber. Were Huckabee's argument to be accepted, who could stop us?

That said, I doubt it will be accepted, largely because Huckabee's claims that his campaign had nothing to do with the rally are blatant lies, given the attendance by his campaign staffers and the blatant promotion of the rally on the Huckabee campaign site. Still, the thought is tantalizing, to say the least...

Huckabee-Tiger (PDF)Huckabee-Tiger (Text)

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Filed Under: copyright, eye of the tiger, fair use, frank sullivan, kim davis, mike huckabee, public performance, religious assembly, survivor

64 Comments

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Wyrm (profile), 15 Jan 2016 @ 8:46am

Time for "someone" to bring back Our Lady of Perpetual Exemption.
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RD, 15 Jan 2016 @ 8:58am

Step up RIAA
ok RIAA, time to step up. This is clear infringement, and he's using the same excuses everybody else uses when sharing files, so time to drop the hammer. I mean after all, you storm in instantly when a regular person violates copyright, so it shouldn't be any different when a politician does too, right? or do we have a de facto double standard on display?
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Anonymous Coward, 15 Jan 2016 @ 8:58am

Flying Spaghetti Monster gatherings will become all the rage.
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Ninja (profile), 15 Jan 2016 @ 9:00am

KOPIMISTS GO!
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Anonymous Coward, 15 Jan 2016 @ 9:01am

Mike Huckabee Invokes Religion In Copyright Suit
I'm pretty sure Mike Huckabee invokes religion in deciding what sort of pizza to order.
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Anonymous Coward, 15 Jan 2016 @ 9:03am

Re:
I'm thinking that this one is a job for the Church of the SubGenius. Getting around copyright this easy is pretty damn Slack.
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Anonymous Coward, 15 Jan 2016 @ 9:04am

Forget the Pirate Party. We need to start the Pirate Religion!
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Anonymous Coward, 15 Jan 2016 @ 9:28am

Your honor, I downloaded that movie for Religion!
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Anonymous Coward, 15 Jan 2016 @ 9:35am

Throw in religion and suddenly Timmy is for copyright?
Odd indeed.
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Anonymous Coward, 15 Jan 2016 @ 9:39am

Already exists
https://en.wikipedia.org/wiki/Missionary_Church_of_Kopimism
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Anonymous Coward, 15 Jan 2016 @ 9:40am

"But think of the possibilities if the court buys this argument. Suddenly, loosely-defined religious grounds can be asserted as an affirmative defense to copyright infringement. The very idea of public performance licensing largely goes out the window, as one can imagine all kinds of gatherings suddenly proclaiming religiosity"

This is exactly what I was thinking as I read the article. Imagine the holes this could poke in copyright enforcement if he actually won.
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Dark Helmet (profile), 15 Jan 2016 @ 9:48am

Re: Throw in religion and suddenly Timmy is for copyright?
You read the above as an endorsement for copyright? Interesting....
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mcinsand, 15 Jan 2016 @ 9:53am

Kim Davis and her ilk have already pirated one religion
If Kim Davis etc. were to actually read the texts that they claim as support, they'd see opposition to theocracy and to efforts to create a theocracy. Their behavior mimics Jesus' enemies, the Pharisees, and is the opposite of that of Jesus.
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Future Bar Owner with an Idea on Reducing Overhead, 15 Jan 2016 @ 10:04am

Church of Sporting
Join the Church of Sporting where we worship NFL, MBL, NHL and all other sporting events by watching them for free on our giant projection TV while drinking beer!

Offerings to our god, bar tab, often results in free flowing beer and for very generous donations bar tab is known to provide worshipers a nice steak dinner.

So if you worship sports and love beer, head on down to the Church of Sporting!
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Ninja (profile), 15 Jan 2016 @ 10:31am

Re:
And to decide how much money to donate to charity. It goes like that:

- Huckabee throws money in the air.
- Huckabee collects money on the ground.
- What God grabbed is for charity, the rest goes on whatever Christian politicians do.

Win!
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Anonymous Coward, 15 Jan 2016 @ 10:32am

Re:
Wouldn't you be able to stream the episodes, and claim fair use when HBO comes after you?
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Ninja (profile), 15 Jan 2016 @ 10:36am

Re: Re: Throw in religion and suddenly Timmy is for copyright?
Bah, don't tell me you wouldn't convert if this shit sticks? *wink wink*
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Anonymous Coward, 15 Jan 2016 @ 10:40am

Does God own the Copyright on the BIble
According to most religions

1) God wrote the bible
2) God is not dead.

Since copyright is something like life + X years, the copyright should still be valid and therefore anyone publishing or reading out loud from the Bible needs a license.

Let their be litigation.
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Anonymous Coward, 15 Jan 2016 @ 10:47am

Drop copyright to 56 years
Until they fix copyright, and drop it to not more than 56 years, if not 28, then I say let Huckabee win and set this precedent. 56 years wasn't pulled out of a hat. That was the term length while it could still be considered somewhat of a limited time.

Now, if you can't even specify the number of years that a copyright exists, that is not a limited time.
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DannyB (profile), 15 Jan 2016 @ 10:55am

Church of the BitTorrent
Can't a bit torrent be a religious gathering in cyberspace of like-minded torrenters? People seeking to obtain and download a particular enlightenment. And help others achieve the same enlightenment?

True zealots of the religion would continue to participate in the torrent long after they themselves have achieved the downloaded revelation.
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PRMan (profile), 15 Jan 2016 @ 10:57am

"Davis was the county clerk who asserted that her right to express her religion -- in the form of denying same sex couples the right to marry -- overrode the secular law of the land, which is about as bad a misunderstanding of how our secular government works as can be imagined."

Reasonable accommodation is given throughout government offices for people with religious beliefs. Women are allowed to wear a burqa in some instances even though other women in the same position aren't allowed to wear a scarf for non-religious reasons. Muslims are allowed breaks and rooms to pray at the appropriate times. Other employees may not get these breaks.

All Kim Davis was asking is for her assistant to be able to sign these marriage certificates that she does not agree to instead of being forced to sign them herself. Reasonable accommodation is what her lawyer argued and they ended up winning the case on its merits. They ended up doing EXACTLY what she asked for when she was thrown in jail. Her assistant is now allowed to sign the marriage certificate when she cannot in good conscience.

So actually, the only one misunderstanding how secular government works is you.
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DannyB (profile), 15 Jan 2016 @ 10:59am

Re: Re:
Mike Huckabee surely must love Matthew 26:11, where Jesus said:
The poor you will always have with you, but you will not always have me.
The faithful must work diligently to ensure the continued existence of poverty.
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DannyB (profile), 15 Jan 2016 @ 11:02am

Re: Re: Throw in religion and suddenly Timmy is for copyright?
That reinforces my estimate of his reading comprehension skills.
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DannyB (profile), 15 Jan 2016 @ 11:06am

Re: Does God own the Copyright on the BIble
Considering The Bible is the single best selling work of all time, with more translations than I would care to count, the size of any damages won could be enormous.

Since many passages from The Bible are set to music, which collection societies would represent the copyright interests of Him who wrote the lyrics?

Since copyright, collection societies, and lawyers tend to originate in the infernal nether regions, it could be interesting.
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DannyB (profile), 15 Jan 2016 @ 11:09am

Re:
I generally sympathize with Kim Davis as you describe. But what you describe is not completely accurate.

I seem to recall that Kim Davis was announcing that these marriage certificates were not valid without HER signature.
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Anonymous Anonymous Coward, 15 Jan 2016 @ 11:30am

Re: Does God own the Copyright on the BIble
Just curious. To whom should licensing fees be endorsed and which bank holds that account?
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David (profile), 15 Jan 2016 @ 11:31am

Re: Does God own the Copyright on the BIble
Except that the publication date predates the grandfather period of the laws that grant that period. In fact, the original date predates the existence of the United States...

So, still not covered.
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Pixelation, 15 Jan 2016 @ 11:43am

Still...
Even if this particular instance gets shot down, it seems like you could have a "religious" meeting and have an exemption/ fair use.
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Adam (profile), 15 Jan 2016 @ 11:46am

Here's your fodder, Survivor...
I will never listen to that song willfully again because of that single event. Damage done. Sue the hell outta them.
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Anonymous Coward, 15 Jan 2016 @ 11:48am

Re:
If you are unable to perform your job duties then perhaps you are in the wrong position and or career. As an employee, you do not get to pick and choose. Do the work or leave/get fired.
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Anonymous Coward, 15 Jan 2016 @ 11:57am

Re: Re:
I got the impression that that was the whole problem: she maintained that with the forms as they were, they were only valid with her signature. At one point someone else had suggested just changing the form, but Davis maintained that as Clerk she would have to approve any new forms anyway, which would once again count as her supporting same-sex marriage. I guess it was a sort of six degrees of sin deal.
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Anonymous Coward, 15 Jan 2016 @ 12:02pm

Re:
All Kim Davis was asking is for her assistant to be able to sign these marriage certificates that she does not agree to instead of being forced to sign them herself.

How convenient that her religious beliefs are so strong NOW after 3 marriages and having at least 2 children out of wedlock.

Does she also refuse to sign marriage licenses for couples who decide to remarry after divorce, or who have children out of wedlock, or is her "faith" confined just to same-sex couples?
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Anonymous Coward, 15 Jan 2016 @ 12:05pm

Religious assembly?
If that was a religious assembly then the guy briefly praying before he partakes of his Olive Garden bread sticks with a glass of wine is celebrating Mass.
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MadAsASnake (profile), 15 Jan 2016 @ 12:07pm

Re: Does God own the Copyright on the BIble
No. God did not write it. The people that did died more than [50 | 70 | 90][select as inappropriate by location] years ago. You could argue that God wrote everything, that everything is a religious gathering and therefore exempt...
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aldestrawk (profile), 15 Jan 2016 @ 12:07pm

Bieber and the Fairuseanalists
I think the beliebers would burn you at the stake for heresy if you usurped their messiah for the Fairuse-Analists. That might be forgiven if Bieber became a martyr by being actually imprisoned for uploading his own songs. Until then, your treading in dangerous waters.
I suggest instead you go with Aqua's megahit "Barbie Girl". You know:
I'm a Barbie girl, in the Barbie world.
Life in plastic, it's fantastic...
https://www.youtube.com/watch?v=ZyhrYis509A

Their copyright/trademark fair use cred was established when Mattel sued MCA records over dilution of the Barbie trademark. Mattel's claim that the song made Barbie into a sex object was especially funny considering Barbie herself is closely based on the German "Bild Lilli" doll. In the cartoon strip in which Bild Lilli first appeared she was very much akin to a call girl. The judge cemented the claim to fame for this case by dismissing the suit, and the counter suit, while saying "The parties are advised to chill."
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MadAsASnake (profile), 15 Jan 2016 @ 12:09pm

Re:
I think it is a requirement of her office. If she is unprepared to exercise that responsibility she is unfit for the position.
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MadAsASnake (profile), 15 Jan 2016 @ 12:15pm

Gotta say, religion and copyright have a lot in common:
- follow long established doctrine
- suspend logic
- seem to be endlessly open to re-interpretation by the practitioners
- require blind faith
Let them slug it out. Popcorn ready :)
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Dark Helmet (profile), 15 Jan 2016 @ 12:25pm

Re:
"So actually, the only one misunderstanding how secular government works is you."

Yeah, not even close. Let me show you the difference.

"Women are allowed to wear a burqa in some instances even though other women in the same position aren't allowed to wear a scarf for non-religious reasons. Muslims are allowed breaks and rooms to pray at the appropriate times. Other employees may not get these breaks."

Neither example has anything to do with a public employee's application of their government duty with regards to a valid citizen of the nation within their purview.

"All Kim Davis was asking is for her assistant to be able to sign these marriage certificates that she does not agree to instead of being forced to sign them herself. Reasonable accommodation is what her lawyer argued and they ended up winning the case on its merits. They ended up doing EXACTLY what she asked for when she was thrown in jail. Her assistant is now allowed to sign the marriage certificate when she cannot in good conscience."

Excuse me, but that kind of revisionist history ain't going to be tolerated around here. What Davis did was REFUSE marriage certificates to citizens whom the government in charge of such things had deemed qualified for them. She directly inhibited the rights of others under the law of the land as part of her pout for her own religious views. As a public employee, she may not allow matters of faith to prevent her from completing her duties as a secular representative.

Try again, sir....
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ta me, 15 Jan 2016 @ 12:26pm

Re: Step up RIAA
Enjoying the kickbacks from the industry are we?

Honestly... who gives a shit if someone used that song. Isn't that the purpose of music... to be shared with people?

I disagree with the meaning behind their rally but I also think crying copyright for using a song in public should get people punched in the dick.
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connermac725 (profile), 15 Jan 2016 @ 1:18pm

HMMM
If that works for him I will start the "Holy order of torrents" church and download in the name of religion
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Glenn, 15 Jan 2016 @ 2:29pm

"God wills it!"
Yeah, that's what they used to say back during the Crusades... on both sides. "We're right because... we're right!"

Impeccable logic. God wills it! (Yep, they just make it all up as they go along.)
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Christenson, 15 Jan 2016 @ 2:53pm

PASTAFARA!!!!
Tim Geigner,

Why didn't the great noodle touch you BEFORE you posted!!!

:P
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Jerry D. Woods, 15 Jan 2016 @ 3:28pm

Kim Davis
Journalism is dead. I could not have botched up an article any more if I tried.
The Kim Davis Rally was not a Political Rally !
The Kim Davis Rally was about Freedom of Religion.
State Law said marriage was between a man and a woman.
Supreme Court does not write laws for a state. They only ruled one law unconstitutional. They did not write a new law.
Kim Davis had a God-Given Right to believe Marriage is ruled by her God who clearly states in Genesis 1 that marriage is between a man and a woman.
The Rally was a religious rally about Freedom of Religion.
Using the song was a Religious Rally.
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Anonymous Coward, 15 Jan 2016 @ 5:03pm

Re: Re:
The Sacraments of Napster and Netflix.
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Anonymous Coward, 15 Jan 2016 @ 5:10pm

Much like how the kkk clan rallies are religious, This one is hard to find belief in.
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Anonymous Coward, 15 Jan 2016 @ 5:14pm

Re: Kim Davis
treat your neighbor as you would like to be treated ring a bell?

But amazingly the teachings that involve treating everyone around you even the ones you don't like always seem to be forgotten when it comes to denying others the same rights you have.

It used to be viewed that owning slaves was a god given right. Didn't make it right.

The fact she sabotaged anyone else attempting to do this job instead of just refusing to do her job is why she is in jail. Has nothing to do with her religious beliefs. Unless those same beliefs teach her to destroy the rights of anyone that believes in something different from her.
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Anonymous Coward, 15 Jan 2016 @ 5:16pm

Re: Re: Does God own the Copyright on the BIble
much like Naruto the monkey I am sure religious groups would crawl out of the woodwork claiming copyright ownership.
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Anonymous Coward, 15 Jan 2016 @ 5:19pm

Re:
I recall hearing about her sabotaging the work arounds her office did to accomadate her beliefs. I am fairly certain that they got fed up with her ruining the chance for gay couples to get married instead of just quietly stepping aside.

Big difference between refusing to do a job you don't believe in, and sabotaging everyone's ability to do the job you disagree with.
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Anonymous Coward, 15 Jan 2016 @ 6:42pm

Re: Kim Davis
Sounding a little angry, self-righteous, and tense. You need to relax and kick back with a nice glass of Jesus Blood.
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That One Guy (profile), 15 Jan 2016 @ 8:40pm

Re: Kim Davis
She has the right to believe whatever she wants, but if she wants to work in a government position her beliefs take a backseat to what the laws say. If she didn't like the law she was free to either quit her position in protest, or do what the law requires anyway, both of which would be valid responses. Refusing to do your job and interfering with the ability of others to do theirs on the other hand is not a valid option.

'Freedom of religion' just means you can believe whatever you want, it doesn't grant you the right to force others to live by your beliefs, especially if your position is taxpayer funded.
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orbitalinsertion (profile), 15 Jan 2016 @ 11:33pm

Re: Re: Step up RIAA
Suggesting that laws and litigious behaviors, or other consequences, bad or not, be applied equitably across the board, particularly when those who tend to be exempt also tend to be at the upper end of the power dynamic, is not the same as promoting bad or unjust rules, laws, or customs.

And it has nothing to do with whether someone agreed with the point of the rally or not. OK, actually, i don't understand any of your response with respect to the comment to which you are apparently replying.
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orbitalinsertion (profile), 15 Jan 2016 @ 11:39pm

Re: Re: Throw in religion and suddenly Timmy is for copyright?
Yet another glaring "I don't know what i'm responding to!" in this thread.

But it's funny how apparently one can throw in religion and one is exempt from copyright. That's cool. No one benefits in cash or warm bodies by using other people's work to make your religious cause seem cooler and more entertaining*.

* Musical taste: YMMV.
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orbitalinsertion (profile), 15 Jan 2016 @ 11:49pm

Re: Kim Davis
I was going to say something about other laws which had to be imposed federally because states sometimes have little to no interest in the rights of some humans or the condition of the environment.

But you already destroy your own argument, which is more amusing.

The Kim Davis Rally was not a Political Rally !
The Kim Davis Rally was about Freedom of Religion.

Um... lol.
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John William Nelson, 16 Jan 2016 @ 6:51am

Hilarious. I've used this defense too, BTW
This is hilarious. And for a copyright lawyer who is no fan of the efforts of some to expand copyright, fantastic.

And I've used this defending copyright infringement claims before. It's legit and fantastic. And most folks forget about it.

That is until some copyright troll comes after a church organization or vet organization with a shakedown. (Vet organizations are covered too. Because Foreign Legion Dances.)

Then BAM, no infringement. Then I et to explain to the troll the fee shifting provision of copyright law. "In this circuit, loser pays the winner's attorney fees. I think I just got an hourly rate raise."
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pouar (profile), 16 Jan 2016 @ 10:49am

I think it's fair use in the way it was used. And yeah, it would be the same for any religion, whether Christian, Satanist, Pagan, Or Flying Spaghetti Monster.
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Jesus Christ, 16 Jan 2016 @ 12:46pm

Huckabee lying in the name of the Lord
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Wendy Cockcroft, 18 Jan 2016 @ 5:45am

Re: Church of the BitTorrent
I can see the Pastafarians getting on board with this. All hail the Flying Spaghetti Monster!

Let us play.

*♪♫ "It's the... eye of the tiger, it's the thrill of the fight..."🎶*
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Wendy Cockcroft, 18 Jan 2016 @ 5:46am

Re: Re: Re:
So says Supply-side Jesus.

http://imgur.com/gallery/bCqRp
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Wendy Cockcroft, 18 Jan 2016 @ 5:47am

Re:
This is why I'm hoping he does.
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Anonymous Coward, 18 Jan 2016 @ 8:06am

Re:
PraiseBe!
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Gwiz (profile), 18 Jan 2016 @ 8:07am

Re: Church of the BitTorrent
Can't a bit torrent be a religious gathering in cyberspace of like-minded torrenters?

Missionary Church of Kopimism
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Carrie (profile), 18 Jan 2016 @ 3:28pm

Establishment clause violation
Now Survivor can itself counterclaim that Huckabee's invocation of that defense is an unconstitutional establishment clause violation. An article I wrote in law school about this obscure provision of the copyright act is actually relevant! http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2398643
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klaus (profile), 19 Jan 2016 @ 1:52am

Re: Re: Step up RIAA
I don't get your point - RD is simply stating that RIAA should treat infringers equally, and is expressing a doubt (that I share) that Huckabee will be punished.
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Anonymous Coward, 19 Jan 2016 @ 4:22pm

Re: HMMM I'd join that one
Our Torrent who art in the cloud
hollowed be thy bits;
Thy seeders come,
Thy will be done,
on internet as it is in the cloud
Give us this day our daily seeders,
and forgive us our leechers,
as we forgive those who leech against us;
and lead us not into tor,
but delivers us from the NSA. Bittorrent.
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