Yes, many people seem to think that copying the entire work automatically precludes fair use. As you point out, this is not the case.
Another common misperception is that merely because the copying was "non-commercial" it is automatically fair use. This is also incorrect.
The fair use test uses four factors, and the courts have consistently found that all of them must be considered, and no single one of them is ever dispositive.
People accused of serious crimes are often kept in fairly harsh conditions with bail denied until the trial actually takes place. It's not "punishment". It has to do with the nature of the crime, the flight risk of the defendant and whether the defendant himself may be in danger from other prisoners.
Of course, there is still the issue that Manning apparently hasn't been charged yet. Even that is permitted under some circumstances. However, if necessary, I suspect a charge of treason (among many others) could be levied against him in fairly short order. He, as a soldier, disclosed information during a time of armed conflict ("war"?) that arguably provided aid to the enemy. Seems like there's at least enough there to justify a full-on trial/court-martial, even if he is eventually acquitted.
I might go for "whistleblowing" if there had been some discretion in what was taken and released. While there certainly does seem to be some evidence of wrongdoing that might very well qualify what Mr. Manning did as whistleblowing, the vast majority just seems to be a massive disclosure of anything and everything he was able to get his hands on, whether it was relevant to any actual wrongdoing or not. And "whistleblowing" protection has never, as far as I'm aware, been applied to those who disclosed confidential materials merely because of concern of a moral - rather than legal - nature.
So, let him argue that some of it was whistleblowing, but I think there is a whole lot that is merely breaking the law.
As for his current detention, I would like to see some corroboration before I jump on the "he's being tortured" bandwagaon that I suspect will quickly get rolling here. Is he actually in solitary confinement? Or is he merely in some form of segregation from the general prison/jail/stockade population - potentially for his own protection? Is the lack of bedsheets (assuming this is true) some form of legitimate effort as part of a suicide watch? Does he have reading materials, decent food and contact with legal counsel and/or family?
And if he's a "model prisoner", good for him. I give him some credit for manning up (pun un-intended)and dealing maturely with the consequences of his actions. Even if he is eventually determined to be a legitimate whistleblower (which I do not stipulate), he still took an action he knew to be illegal, and SHOULD have been prepared to deal with being treated like a suspect in a very, very serious criminal matter until such time as his name is cleared.
Personally, I suspect he is going to grow old in the stockade.
Seems like the older kids don't like the word "bullying", because it sounds childish. So they come up with other euphemisms. The word is not nearly as important as the behavior it is intended to describe. In any case, it sounds like the kids can still identify behaviors in which one person exerts "unfair" or "mean" influence over another via intimidation or violence.
That all being said, I tend to agree that the concept of "cyberbullying" is sort of silly. As if any behavior is somehow different merely because you can carry out some version of it online.
I'm just waitin' for the day when the bad guys start using suppositories to carry their bad guy stuff. The TSA guys will REALLY be needing their rubber gloves to search travelers then!
I think the more straightforward argument for him here is that he DID complete the process. The TSA agents told him he was done and dismissed him. They released him from their authority (whether they properly followed their own procedures or not) and essentially then tried to start a NEW screening based merely on his presence at an airport (as opposed to his intent to board a plane).
Mixing in free speech issues is not really relevant here. If I had a private club, I could set whatever rules I wanted, including limits on the ability of members to speak their minds. However, if the public is invited - even though it's private property - they generally get to spout off about whatever they want, as long as they're not actually causing a real problem (like interfering with others, intimidating/threatening people, etc., etc.).
Yes, most likely, the cops will just see to the removal of the trespasser - unless it can be argued that it's not merely trespass, but actually breaking and entering. And if it's MY property, I'm certainly going to insist that I have the right to at least make that argument.
If I have a business that charges admission to enter my premises (like an amusement park, for instance), and someone sneaks in under the fence somewhere and starts riding my roller coaster, that's more than just violating my "terms of use" for being on my property. It's trespassing. If I can call the cops and have the trespasser thrown in the hoosegow for entering my physical property in an "unauuthorized" way (by not paying admission, for instance), why not be able to similarly have someone charged with a crime for trespassing on my computer system (by not complying with the terms of service)?
While I agree that we need to be careful that such concepts are not abused or otherwise taken too far, I do not disagree with the core concept.
It's not like there's a market for football plays in the same sense that there's a market for other mainstream copyright-ed/able works like books, music and movies. The football play is a means to an end - that of scoring more points than the other team.
I guess one might patent a football play...
In any case, I'm not sure these counter examples actually disprove the benefits of our current copyright/patent scheme in the US, as much as they merely demonstrate that nobody should assume that just because one might consider it to work for books and movies that it would necessarily work for other things.
I don't think you can actually disprove the utility of our IP infrastructure without actually being able to turn it off completely for some period of time to see what happens.
Yes, that's important, but the timing is not the only issue. Since jurors are not supposed to discuss the case AT ALL outside of the deliberation room, the fact that she posted ANYTHING about it is a problem - regardless of who had or had not had their turn at bat.
Jurors are not supposed to be discusing the case, contacting anybody involved with the case, conducting their own investigation (e.g., visiting the crime scene on their own), talking to the press, etc., etc., etc. After the trial, they can say/do whatever they want, but until they are released, they're supposed to closed off to the world outside that courtroom (as far as the case is concerned).
That's one reason why some juries get sequestered - to make sure there is NO contact with the outside world in particularly sensitive cases.
Well, I wouldn't ban anyone from jury service unless there were some other service alternative - like shoveling out the police stables (for those communities that have mounted police, of course) for an equivalent period of time.
That should go for EVERYONE who gets out of jury duty for anything other than a hardship.
It's both, actually. Jurors are clearly admonished to not discuss the case at all outside of the deliberation room. Not even among themselves in the courthouse hallway during a recess.
Actually, when I served on a jury many years ago, I tried to avoid making a decision early, but what I found was that my opinion was sort of like a meter dial on which the indicator needle would swing back and forth between guilty and not-guilty, depending on the latest evidence/testimony being presented. I was a bit concerned that I might be unfair to the defendant by doing that, but gave it a lot of thought and decided this was "natural", and that the most important part was my preparedness to hear both sides and take all the evidence into account. If my path wavered back and forth before making a final decision, that was OK, as long as the final decision took into account everything.
I also was impressed that my fellow jurors really did seem to take the whole thing very seriously. I didn't always agree with where they were coming from on various issues, and jury deliberation sure demonstrates that different life experiences can color one's perceptions in interesting ways. But, overall, everybody treated the whole thing seriously.
So, your headline just happens to ALMOST quote him word-for-word, but you choose to drop a few words so it says something very different, and you don't see what demonstrably false?
He asserted the Copyright Office had a conflict (and he said it was "part of", not "controlled by" the LoC), and was not a "strong enough" advocate (which implies that he believes it IS an advocate, though to some less-than-preferred degree). You have turned that into a claim by him that the CO is not an advocate at all, merely to make it seem more extreme to aid in your arguments against his position.
Your arguments may or may not be persuasive, but they certainly do not need to rest upon a misrepresentation of Henley's statement. Especially in light of your various posts regarding assertions that the MPAA/RIAA mis-use and misrepresent statistics and that the New York Times makes up statistics based on random anecdotal reports.
It's clear that you have a real big chip on your shoulder about this stuff, and that you're not overly interested in looking at these issues from the other guy's point of view. I would hope, however, that you could at least accurately relate the facts.
My reaction when I read your headline was, "wow, Henley really said THAT?" I had in mind some of the things you yourself used to refute this supposed position of his. It didn't make sense to me that he could, with a straight face, make that kind of comment. However, when I read further, I realized no, he didn't say THAT at all. You didn't merely summarize his position, or re-cast his comments in a different way. You made up an assertion that was not supported by what he actually appears to have said.
The fact that you don't see what is demonstrably false speaks volumes.
Don Henley didn't say the Copyright Office is "not an advocate" for copyright holders, as your headline claims. He said, as you later quoted, it was not a "strong enough" advocate, and he has his reasons for believing so. Two very different concepts. Of course, reasonable people may have differing opinions regarding whether the Copyright Office strikes a fair balance in its role or if some adjustment is necessary. That's a different subject.
On its face, your headline is demonstrably false. Why did you feel it necessary to be misleading? Your arguments - whether one agrees or disagrees with their applicability -are just as effective without misrepresenting Henley's position.
You often go to great lengths to point out what you believe to be misrepresentation of the facts by others (at least those others who have opinions you deem to be misguided or incorrect). Why do you not hold yourself to the same standard?
Well, the links go to articles that only mention firmware updates gone bad. None of them mentioned DRM at all. Has someone actually gone back to the original forum discussions to confirm that this is DRM-related?
Just to be clear, I see a difference between someone taking pictures that I just happen to be in - because I'm in a public place - and someone intentionally pointing their camera at me for the purpose of taking a picture of ME, rather than the scenery.
So, obviously, nobody should be prevented from taking pictures of Niagara Falls merely because I am viewing it and don't want to be in the picture (though it is polite to give people a chance to get out of the way, and I would usually take advantage of such an opportunity). However, that's different than someone walking up to me to engage me in direct conversation and videotaping the encounter - even in a public place.
I understand the law generally does not take such a granular approach. However, I think it should. I think there is a reasonable right to privacy even in a public place. You should have the right to be left alone. And, while certainly anybody who happens to be at Niagara Falls on the day you go there can see you and report to others you were there, that's quite different from having your visit videotaped and potentially broadcast to the world.
I'm not sure California law specifically says that, but it is sure a very logical extrapolation. How could the caller argue he didn't consent to being recorded when he told you he was doing it himself?
The purpose of the notice is to get your "consent". If you continue to stay on the line after that notice, they will argue that you consented to be recorded.
On the post: Law Professor Explains How Even When A Site Copies An Entire Article, It May Still Be Fair Use
Another common misperception about fair use . . .
Another common misperception is that merely because the copying was "non-commercial" it is automatically fair use. This is also incorrect.
The fair use test uses four factors, and the courts have consistently found that all of them must be considered, and no single one of them is ever dispositive.
HM
On the post: US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction
Re: Re:
Of course, there is still the issue that Manning apparently hasn't been charged yet. Even that is permitted under some circumstances. However, if necessary, I suspect a charge of treason (among many others) could be levied against him in fairly short order. He, as a soldier, disclosed information during a time of armed conflict ("war"?) that arguably provided aid to the enemy. Seems like there's at least enough there to justify a full-on trial/court-martial, even if he is eventually acquitted.
HM
HM
On the post: US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction
Whistleblowing? Nah, I don't buy it.
So, let him argue that some of it was whistleblowing, but I think there is a whole lot that is merely breaking the law.
As for his current detention, I would like to see some corroboration before I jump on the "he's being tortured" bandwagaon that I suspect will quickly get rolling here. Is he actually in solitary confinement? Or is he merely in some form of segregation from the general prison/jail/stockade population - potentially for his own protection? Is the lack of bedsheets (assuming this is true) some form of legitimate effort as part of a suicide watch? Does he have reading materials, decent food and contact with legal counsel and/or family?
And if he's a "model prisoner", good for him. I give him some credit for manning up (pun un-intended)and dealing maturely with the consequences of his actions. Even if he is eventually determined to be a legitimate whistleblower (which I do not stipulate), he still took an action he knew to be illegal, and SHOULD have been prepared to deal with being treated like a suspect in a very, very serious criminal matter until such time as his name is cleared.
Personally, I suspect he is going to grow old in the stockade.
HM
On the post: Rethinking Bullying: Kids Don't See It As Bullying
Sounds more like a vocabulary issue
That all being said, I tend to agree that the concept of "cyberbullying" is sort of silly. As if any behavior is somehow different merely because you can carry out some version of it online.
HM
On the post: Why The TSA's Searches Are Unconstitutional
Re:
HM
On the post: Why The TSA's Searches Are Unconstitutional
Next level
HM
On the post: TSA Defending Its Groin Grabbing Or Naked Image Security Techniques
Re:
HM
On the post: Judge Refuses To Dismiss Criminal Charges For Violating Ticketmaster's Terms Of Service; Trial Moves Forward
Re: Re: Why not a criminal act?
Yes, most likely, the cops will just see to the removal of the trespasser - unless it can be argued that it's not merely trespass, but actually breaking and entering. And if it's MY property, I'm certainly going to insist that I have the right to at least make that argument.
HM
On the post: Judge Refuses To Dismiss Criminal Charges For Violating Ticketmaster's Terms Of Service; Trial Moves Forward
Why not a criminal act?
While I agree that we need to be careful that such concepts are not abused or otherwise taken too far, I do not disagree with the core concept.
HM
On the post: Yet Another Example Of Creativity Exploding Without Copyright Law: Football Plays
Interesting . . . but, relevant?
I guess one might patent a football play...
In any case, I'm not sure these counter examples actually disprove the benefits of our current copyright/patent scheme in the US, as much as they merely demonstrate that nobody should assume that just because one might consider it to work for books and movies that it would necessarily work for other things.
I don't think you can actually disprove the utility of our IP infrastructure without actually being able to turn it off completely for some period of time to see what happens.
HM
On the post: Juror Has To Write Essay As Punishment For Commenting On Case Via Facebook
Re: important detail missing
Jurors are not supposed to be discusing the case, contacting anybody involved with the case, conducting their own investigation (e.g., visiting the crime scene on their own), talking to the press, etc., etc., etc. After the trial, they can say/do whatever they want, but until they are released, they're supposed to closed off to the world outside that courtroom (as far as the case is concerned).
That's one reason why some juries get sequestered - to make sure there is NO contact with the outside world in particularly sensitive cases.
HM
HM
On the post: Juror Has To Write Essay As Punishment For Commenting On Case Via Facebook
Re:
That should go for EVERYONE who gets out of jury duty for anything other than a hardship.
HM
On the post: Juror Has To Write Essay As Punishment For Commenting On Case Via Facebook
Re: A bit misleading...
Actually, when I served on a jury many years ago, I tried to avoid making a decision early, but what I found was that my opinion was sort of like a meter dial on which the indicator needle would swing back and forth between guilty and not-guilty, depending on the latest evidence/testimony being presented. I was a bit concerned that I might be unfair to the defendant by doing that, but gave it a lot of thought and decided this was "natural", and that the most important part was my preparedness to hear both sides and take all the evidence into account. If my path wavered back and forth before making a final decision, that was OK, as long as the final decision took into account everything.
I also was impressed that my fellow jurors really did seem to take the whole thing very seriously. I didn't always agree with where they were coming from on various issues, and jury deliberation sure demonstrates that different life experiences can color one's perceptions in interesting ways. But, overall, everybody treated the whole thing seriously.
HM
On the post: Don Henley Still Really Confused: Actually Claims Copyright Office Is Not An Advocate For Copyright Holders
Re: Re: Your headline skips some important words
He asserted the Copyright Office had a conflict (and he said it was "part of", not "controlled by" the LoC), and was not a "strong enough" advocate (which implies that he believes it IS an advocate, though to some less-than-preferred degree). You have turned that into a claim by him that the CO is not an advocate at all, merely to make it seem more extreme to aid in your arguments against his position.
Your arguments may or may not be persuasive, but they certainly do not need to rest upon a misrepresentation of Henley's statement. Especially in light of your various posts regarding assertions that the MPAA/RIAA mis-use and misrepresent statistics and that the New York Times makes up statistics based on random anecdotal reports.
It's clear that you have a real big chip on your shoulder about this stuff, and that you're not overly interested in looking at these issues from the other guy's point of view. I would hope, however, that you could at least accurately relate the facts.
My reaction when I read your headline was, "wow, Henley really said THAT?" I had in mind some of the things you yourself used to refute this supposed position of his. It didn't make sense to me that he could, with a straight face, make that kind of comment. However, when I read further, I realized no, he didn't say THAT at all. You didn't merely summarize his position, or re-cast his comments in a different way. You made up an assertion that was not supported by what he actually appears to have said.
The fact that you don't see what is demonstrably false speaks volumes.
HM
On the post: Don Henley Still Really Confused: Actually Claims Copyright Office Is Not An Advocate For Copyright Holders
Your headline skips some important words
On its face, your headline is demonstrably false. Why did you feel it necessary to be misleading? Your arguments - whether one agrees or disagrees with their applicability -are just as effective without misrepresenting Henley's position.
You often go to great lengths to point out what you believe to be misrepresentation of the facts by others (at least those others who have opinions you deem to be misguided or incorrect). Why do you not hold yourself to the same standard?
HM
On the post: DRM Strikes Again: Samsung Blu-ray Firmware Update Means No Warner Or Universal Movies
Where is the DRM issue?
HM
On the post: Court Says It's Okay To Secretly Record Conversation If Done For Legitimate Reasons
Re: Re:
Because you may be the victim of a neighborhood bully, I'm supposed to entirely give up my privacy?
HM
On the post: Court Says It's Okay To Secretly Record Conversation If Done For Legitimate Reasons
Re: Re: I sure don't want to be recorded...
So, obviously, nobody should be prevented from taking pictures of Niagara Falls merely because I am viewing it and don't want to be in the picture (though it is polite to give people a chance to get out of the way, and I would usually take advantage of such an opportunity). However, that's different than someone walking up to me to engage me in direct conversation and videotaping the encounter - even in a public place.
I understand the law generally does not take such a granular approach. However, I think it should. I think there is a reasonable right to privacy even in a public place. You should have the right to be left alone. And, while certainly anybody who happens to be at Niagara Falls on the day you go there can see you and report to others you were there, that's quite different from having your visit videotaped and potentially broadcast to the world.
HM
On the post: Court Says It's Okay To Secretly Record Conversation If Done For Legitimate Reasons
Re: Re: ianal
HM
On the post: Court Says It's Okay To Secretly Record Conversation If Done For Legitimate Reasons
Re: ianal
HM
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