I appreciate the distinction--"copyfraud" versus "legal fraud"--and that the former is a recently-coined term with its own definition. But, two things:
(1) When you make up a pithy term that incorporates a legal term with a long history and clearly defined set of standards and you then inject that new term into a legal discussion, you can't really expect readers to separate the new from the old, can you? In fact, I'd question an assertion that using the "-fraud" suffix is for any reason other than to evoke the legal construct.
(2) Professor Mazzone's definition of "copyfraud" is startlingly close to the actual definition of a legal defense to infringement called "copyright misuse." But "copyright misuse" isn't as catchy, is it? That's because "fraud" carries such a heavy load of meaning that it's almost impossible not to want to use it. Except that, in this case, it's misleading, and I don't think accidentally so.
So am I against the term itself? No. I just think it should be used sparingly, and not as a buzzword of the month. For example, when a lawyer knows that his client holds no registration for a work but threatens a potential defendant with statutory damages should the alleged infringer not settle--that seems like somewhere "copyfraud" might apply well. But when words like "fraud" are just thrown around in a legal context, then, yes, the confusion you mention above results.
All this is a long way of pleading for measured rhetoric, especially when fighting the good fight.
Oh, sorry: I noticed that you asked about my education, too. Top-10 law school, with honors, and on a journal. I mean, really? This is the first time I've ever offered this stuff up here--it's nothing I care to tout around here. But because it seems to influence what you think of my input to the conversation, there it is.
I'm an intellectual property lawyer. Have been for 10 years. Copyright, trademark, patent, with some trade secrets thrown in. Also a painter and curator.
Is that enough information? I like long walks on the beach, too, but I like them by myself.
George Zimmerman shot and killed Trayvon Martin. Zimmerman claims it was in self-defense, which is a defense against a murder charge. Did the police wrongfully arrest and detain Zimmerman because they failed to thoroughly investigate the merits of his defense before arresting him? Is the prosecutor committing fraud on the court by prosecuting a case against him without determining the merits of Zimmerman's defense completely apart from any work the defense attorney(s) may or may not do?
This isn't an example of lawyers being lawyers. It's one of folks just becoming so enamoured of a powerful word and wanting to fling it around. Flinging weakens the word. Use responsibly.
Copyfraud for denying someone something they didn't have to ask you for? Come on. Why'd he even ask, then? Is that request-fraud, in that he duped the publisher into thinking it had the right to deny him the use? This is a ridiculous rabbit-hole.
Geez, you guys: "fraud" is a legal construct. It sets a really high bar if you want to claim it. This doesn't even come close. Can you really think of no defensible reason that the publisher might have said that? Like "We have to aggressively defend our copyrights...to make sure we get paid when our authors' works are used?" Does that sound fraudulent? I don't mean a misstatement--which it may be (although it's really just a description of his or her job)--but fraudulent?
The onus you two are putting on copyright holders is misplaced. No one has the duty to look into all the facts surrounding a requested use by someone else of work you own, determine whether that use, based on the 4 factors of 17 USC 107, is more likely than not a fair one, then respond accordingly viz the request.
And no court in the country would find that the failure to do the above, or the failure of the publisher to be armed in advance with enough knowledge to make the correct decision on every request, is fraud.
By stretching this concept past the breaking point, you're undermining reasonable arguments in favor of greater fairness. Please recognize that.
See above. "The mere hint?" "Clearly fair?" "DUTY?"
You really need to think about this. You're so attached to an idea that you enjoy that you're blind to what's true. Read the Copyright Act. Read the case law. Read...anything but the last things you yourself have written: you're flat-out wrong. I know you like the idea, and it may be a fine idea, but it's nowhere near the law.
Find me that. Find me that anywhere in the world. Find me something that says "The owner of a copyright must accede to a requestor's use of his or her copyright-protected property if the requestor would have a colorable fair use defense should the use occur and were suit brought thereon by the owner. The owner has an affirmative duty to inquire as to the availability of such a defense on behalf of the requestor."
I'm serious. That's what the law you're telling me exists would look like. There is nothing even close. The closest is the academic here uses in spite of the refusal, gets sued, then prevails on a fair use defense. If you can find me a single thing to shore up your suggestion, I'll buy you a case of beer.
Word up. And I don't believe it's Copyfraud. Denying someone a license isn't, to my mind, "imposition . . . of restrictions beyond what the law allows." But re the ad hominem nonsense--the cries of "lying" and whatnot--seriously, enough already. It's just not useful dialogue. Do we want to move the conversation forward? Then let's stop with all that.
And I say that as someone sometimes guilty of the same, so it's a note to myself as well.
I don't know, dude: if you were really trying to make points as opposed to score points--in other words, to insult people--you might get flagged a whole lot less. Try.
That's not the way to do it. If you're revolting against something, best to know what it is, don't you think? Otherwise, you run two risks: (1) revolting in a way that makes you a sitting duck for draconian punishment or, (2) not revolting at all when you think you are--which just makes you look like a petulant, semi-stupid teenager.
I don't think that's right, mate. I think the call to the publisher can fairly be characterized as seeking a license. He called to ask if they'd object to him doing what he wants to do with the publisher's protected work--that's seeking a license.
And while I hate hearing how companies "hate to do this, but have to protect their intellectual property stringently," this isn't Copyfraud. It's just another copyright holder being douchy, uncreative and unreasonable. Copyfraud wouldn't even really result here if the publisher said "...and if you do, we reserve the right to sue you." Their copyright, their right. It's a far cry from fraud when a suit is brought that requires a real analysis of the situation to determine who prevails.
Dude, just because I agreed with you doesn't make me an actual member of your team. So don't pick me. I calls 'em like I sees 'em, that's all. Simmer down.
Not true: "fair use never allows you to grab a copyrighted image to use for a published work."
Think of a review of an art show, which review is published in an art magazine, and which review relies on a representative image to avoid being simply art-world blather.
Grabbed: copyrighted image. Used: in published work. Use: fair. Examples: Art Forum, Art in America, Modern Painter, The New Yorker . . .
You know, I'm going to join in on this one. I don't think that denying someone use of a work, even if that use might be deemed fair, is "Copyfraud." That word, as I understand it, is best defined as threatening or bringing legal action that you know overreaches viz the rights you have in a given work. Simply refusing to accede to someone's use of a work in which you hold rights? I think that's overreaching to find Copyfraud. What's the rights-holder supposed to have to say to avoid the charge, then--"Listen, I really wish you wouldn't do that, but in all candor, I can't stop you because of 17 USC Section 107 and your seemingly rock-solid fair-use defense in this instance?"
Anyone is free to decline to agree to someone's use of their work. Whether the someone goes ahead or not, and whether that going ahead is legal or defensible, is another inquiry.
I don't think you're a troll. I think you're an amateur. Fair use is a balancing test that uses four factors. Anytime that's the situation, you're deep in the realm of the subjective. I don't agree with Marcus that you're necessarily dead in the water, but for you to say that someone can "educate" him- or herself out of the subjectivity necessarily present in a fair use analysis, you are mistaken--at best. Not only are the four factors weighted differently in different instances, different courts, but the very concept of "fair" e- and devolves over time (at one time, there was a de minimis exception--now that's gone, just for example).
I'm going to give you the benefit of the doubt and suggest you read more. Were I not to, I'd say that you should stop spouting nonsense.
On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
Re: Re: Re: Re: Re: RE: but is it copyfraud
(1) When you make up a pithy term that incorporates a legal term with a long history and clearly defined set of standards and you then inject that new term into a legal discussion, you can't really expect readers to separate the new from the old, can you? In fact, I'd question an assertion that using the "-fraud" suffix is for any reason other than to evoke the legal construct.
(2) Professor Mazzone's definition of "copyfraud" is startlingly close to the actual definition of a legal defense to infringement called "copyright misuse." But "copyright misuse" isn't as catchy, is it? That's because "fraud" carries such a heavy load of meaning that it's almost impossible not to want to use it. Except that, in this case, it's misleading, and I don't think accidentally so.
So am I against the term itself? No. I just think it should be used sparingly, and not as a buzzword of the month. For example, when a lawyer knows that his client holds no registration for a work but threatens a potential defendant with statutory damages should the alleged infringer not settle--that seems like somewhere "copyfraud" might apply well. But when words like "fraud" are just thrown around in a legal context, then, yes, the confusion you mention above results.
All this is a long way of pleading for measured rhetoric, especially when fighting the good fight.
On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
Re: Re: Re: Re: copyright permissions
On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
Re: Re: Re: Re: Re: Re: Re: Re: Is there?
On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
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Is that enough information? I like long walks on the beach, too, but I like them by myself.
On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
Re:
George Zimmerman shot and killed Trayvon Martin. Zimmerman claims it was in self-defense, which is a defense against a murder charge. Did the police wrongfully arrest and detain Zimmerman because they failed to thoroughly investigate the merits of his defense before arresting him? Is the prosecutor committing fraud on the court by prosecuting a case against him without determining the merits of Zimmerman's defense completely apart from any work the defense attorney(s) may or may not do?
This isn't an example of lawyers being lawyers. It's one of folks just becoming so enamoured of a powerful word and wanting to fling it around. Flinging weakens the word. Use responsibly.
On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
Re: Re: Re: RE: but is it copyfraud
Copyfraud for denying someone something they didn't have to ask you for? Come on. Why'd he even ask, then? Is that request-fraud, in that he duped the publisher into thinking it had the right to deny him the use? This is a ridiculous rabbit-hole.
On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
Re: Re: Re: Re: Re: Re:
The onus you two are putting on copyright holders is misplaced. No one has the duty to look into all the facts surrounding a requested use by someone else of work you own, determine whether that use, based on the 4 factors of 17 USC 107, is more likely than not a fair one, then respond accordingly viz the request.
And no court in the country would find that the failure to do the above, or the failure of the publisher to be armed in advance with enough knowledge to make the correct decision on every request, is fraud.
By stretching this concept past the breaking point, you're undermining reasonable arguments in favor of greater fairness. Please recognize that.
On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
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You really need to think about this. You're so attached to an idea that you enjoy that you're blind to what's true. Read the Copyright Act. Read the case law. Read...anything but the last things you yourself have written: you're flat-out wrong. I know you like the idea, and it may be a fine idea, but it's nowhere near the law.
On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
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I'm serious. That's what the law you're telling me exists would look like. There is nothing even close. The closest is the academic here uses in spite of the refusal, gets sued, then prevails on a fair use defense. If you can find me a single thing to shore up your suggestion, I'll buy you a case of beer.
On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
Re: RE: but is it copyfraud
And I say that as someone sometimes guilty of the same, so it's a note to myself as well.
On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
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On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
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On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
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And while I hate hearing how companies "hate to do this, but have to protect their intellectual property stringently," this isn't Copyfraud. It's just another copyright holder being douchy, uncreative and unreasonable. Copyfraud wouldn't even really result here if the publisher said "...and if you do, we reserve the right to sue you." Their copyright, their right. It's a far cry from fraud when a suit is brought that requires a real analysis of the situation to determine who prevails.
On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
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On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
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On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
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On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
Re: Not Fair Use
Think of a review of an art show, which review is published in an art magazine, and which review relies on a representative image to avoid being simply art-world blather.
Grabbed: copyrighted image. Used: in published work. Use: fair. Examples: Art Forum, Art in America, Modern Painter, The New Yorker . . .
On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
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On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
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Anyone is free to decline to agree to someone's use of their work. Whether the someone goes ahead or not, and whether that going ahead is legal or defensible, is another inquiry.
On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It
Re: Re: Re: Re: Re: Re: Is there?
I'm going to give you the benefit of the doubt and suggest you read more. Were I not to, I'd say that you should stop spouting nonsense.
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