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What is Fair Use in the Digital Age?

Zonk posted more than 6 years ago | from the fair's-fair dept.

The Internet 199

Hugh Pickens writes "General counsel for NBC Rick Cotton and Tim Wu, professor at Columbia Law school, continue their debate about copyright issues and technology on Saul Hansell's blog at the New York Times discussing Fair Use of commercial music and video as the raw materials for new creations. Cotton says that content protection on the broadband internet is really not a debate about fair use The fact that users can 'take three or four movies and splice together their favorite action scenes and post them online does not mean that these uses are fair. There needs to be something more — something that truly injects some degree of original contribution from the maker other than just the assembly of unchanged copies of different copyrighted works.' Wu's position is that 'it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use. This simple concept would bring much clarity to the problems of secondary authorship on the web.' This is a continuation of the previous discussion on copy protection."

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debate bias? (1)

Travelsonic (870859) | more than 6 years ago | (#22073338)

Just keep the **AAs in check before continuing the debates and discussions. They never show any logic, or sanity for that matter when it comes to this issue.

Re:debate bias? (1)

davester666 (731373) | more than 6 years ago | (#22074092)

bias? On Slashdot? Never!

Fair use is whatever big media tells you it is!

Re:debate bias? (1)

Planesdragon (210349) | more than 6 years ago | (#22074552)

They never show any logic, or sanity for that matter when it comes to this issue.

An "information wants to be free" is somehow more sane or logical than "you need to pay us when you hear that song."?

Re:debate bias? Bias? Here's a form of bias? (2, Interesting)

davidsyes (765062) | more than 6 years ago | (#22074594)

"What is Fair Use in the Digital Age?"

The same that applied in pre-digital, digital ages:

Do not fold, spindle, or mutilate. There. Now, transferring that age to this age, add: "Don't digitize or compress; decompression not guaranteed" the membership.

Fair use is very simple (5, Insightful)

timmarhy (659436) | more than 6 years ago | (#22073344)

If i've purchased a song, i should be able to use it anywhere,on anything and at anytime of my choosing for personal use, and i should be able to exchange my license to use this music with anyone else for a swap or money exactly like any other 2nd hand market.

Re:Fair use is very simple (5, Insightful)

timmarhy (659436) | more than 6 years ago | (#22073406)

oh and sampling for parody or amature non profit use should be allowed as well.

Re:Fair use is very simple (0)

Anonymous Coward | more than 6 years ago | (#22073434)

The fact that users can 'take three or four movies and splice together their favorite action scenes and post them online does not mean that these uses are fair. There needs to be something more -- something that truly injects some degree of original contribution from the maker

My music video of Naruto set to Linkin Park is obviously original!

Re:Fair use is very simple (1)

webmaster404 (1148909) | more than 6 years ago | (#22073770)

Not original but still should be fair as most people watch TV shows for plots rather than some scenes. The song might be non-fair though.

Re:Fair use is very simple (2, Insightful)

Original Replica (908688) | more than 6 years ago | (#22074060)

My music video of Naruto set to Linkin Park is obviously original!

The majority of the anime mashup music videos are crap and don't really "inject original contribution" but there are some that are quite well done. [youtube.com] The problem with having a requirement of "something that truly injects some degree of original contribution" is that what qualifies is entirely subjective. What is a subtle but relevant addition to some kid making a video might just be worthless crap to a sixty year old judge. Artistic tastes are to vague to be a part of the law.

Re:Fair use is very simple (3, Interesting)

loki_tiwaz (982852) | more than 6 years ago | (#22074570)

I've never understood why it isn't simple - if you make money off it, it's piracy, unless you negotiate a distribution license. Everything else is fair use. This breaks down a little bit in the context of sites like youtube or showing them on a television show. Thinking it through, I think that such a form of distribution is actually advertising and the copyright holders should leave them alone because it's advertising that reaches fans directly, the people who they are marketing to, right?

Mod parent up (1)

Smackheid (1217632) | more than 6 years ago | (#22075122)

simple - if you make money off it, it's piracy, unless you negotiate a distribution license. Everything else is fair use.

Well said. Simple and equitable. As the laws surrounding copyright get more and more complicated, we can only hope a similar 'hard reset' will eventually have to occur.

What about things INTENDED to be part of something (4, Insightful)

WaltBusterkeys (1156557) | more than 6 years ago | (#22074572)

What about music that's written with the intent that it be used as a backdrop to something else, like a film score? The intended use of that music is to be incorporated into something else that adds a layer of creativity. If you say "any use that adds something to the work is fair use" then film scores effectively lose ALL protection. The original film, for which they are written, wouldn't have to pay royalties because it would be adding something and making "fair use" of it.

Same for stock photography and stock video providers -- their GOAL is to provide raw material as input into a larger work. They spend a lot of time and money shooting and editing stock. If you claim any use of their work is fair use (it's always incorporated into a larger whole, and often transformed along the way) then stock photographers and videographers can't get paid (all use is fair use--why pay for it) and might just stop producing stock material. It's a huge benefit to illustrators and designers to have stock photography and video available. (As an aside, some stock photographers create really good work [photographersdirect.com] )

How does he address the fact that some people design work with the hopes of being paid by producers who will assemble it into a larger whole, and that producers are glad to have designer's work available?

Re:Fair use is very simple (5, Informative)

MasterC (70492) | more than 6 years ago | (#22073978)

...i should be able to exchange my license to use this music with anyone else for a swap or money exactly like any other 2nd hand market.
Don't confuse fair-use with first-sale [wikipedia.org] .

First-sale is really quite natural. Copyrights are placed on a non-scarce resource to make them scarce. It would be absolutely ludicrous to purchase a shovel and not be able to sell it for whatever someone else is willing to pay for it. If copyright wants to push IP to equal footing (no pun intended) of shovels then you should be able to sell your iTune or CD for whatever anyone is willing to pay.

The illusion that you can't/shouldn't/must not resell it is Big Media (TM) overencroaching on your rights. Fair use is but only one victim of DRM and first-sale is another.

I could make a similar argument against software that can be licensed only once (Steam [wikipedia.org] : I'm looking at you!). MS products are another example of this.

Re:Fair use is very simple (2, Informative)

cpt kangarooski (3773) | more than 6 years ago | (#22074212)

That's great, but it has nothing to do with fair use. If you want that, get a specific statutory exception covering it.

Also please n.b. that with the exception of downloaded music, ordinary consumers don't license music at all. The stupid software industry has just managed to screw up how people think of their rights in connection with works and the scope of protection the works enjoy.

Re:Fair use is very simple (1)

Max Night (1221500) | more than 6 years ago | (#22074518)

>i should be able to exchange my license to use this music with anyone else for a swap or money exactly like any other 2nd hand market.


Yep - but it should be mandatory that you give up ALL possession of that music, just as you would with a second-hand shovel.

Most people do not license, they own. (1)

seeker_1us (1203072) | more than 6 years ago | (#22074578)

I agree, but please let me add that one does not "license" a CD, one buys a copy of it. That copy is owned, not licensed, even though the owner does not have the rights to copy (beyond fair use).

A license is only needed when the copyright holder needs to give a limited set of copying rights (beyond fair use) to the licensee.

I'm not contradicting you: I think you were talking about online downloads. Those might indeed be licensed, I do not know because I stopped giving money to RIAA.

Re:Fair use is very simple (1)

Alpha830RulZ (939527) | more than 6 years ago | (#22075028)

So, if you purchase a song from an artist, and you happen to be a filmmaker, you should be able to use that purchased song in your hit movie without further compensation to the artists?

It won't be popular here, but it's a perfectly reasonable position for the owner of a work to take that they are selling you the right to play their music, off of the CD, for your personal use only. It may not be a workable position in the ethos of today's market, but it's a position consistent with the rest of property and rights law. Where the **AA get off the tracks is in their non-fact based pursuit of people on the edge of the fray.

I'm not confused but the headline is! (5, Interesting)

garcia (6573) | more than 6 years ago | (#22073392)

There is no difference in Fair Use rights in the "Digital Age". It's the same as it's always been. It's only because of the misinformation campaigns by the RIAA and MPAA that we have a society that's confused about the rights they have had for quite some time.

Unfortunately, the sheep are easily swayed over time (the frog/boiling water deal I suppose). I'm not fooled and hopefully they won't be able to fool intelligent judges either. They might buy over Congress but someone needs to put their foot down and stick up for us.

I'm tired of stories like this :(

Re:I'm not confused but the headline is! (0, Offtopic)

xannash (861526) | more than 6 years ago | (#22073606)

Who said anything about "intelligent" judges?

Re:I'm not confused but the headline is! (0)

Anonymous Coward | more than 6 years ago | (#22074006)

I think the words honest, reasonable and impartial are better. Unfortunately those kinds of judges don't exist either.

Re:I'm not confused but the headline is! (1)

xannash (861526) | more than 6 years ago | (#22074438)

Who ever modded the parent down on this must have been one of those intelligen...er....honest, reasonable, and impartial judges.

Not just the RIAA (3, Insightful)

EmbeddedJanitor (597831) | more than 6 years ago | (#22073614)

The (ab)user side are also muddying the water. Consider the mashup DJs that release their own "creative works" on CD (which they then expect to have covered by copyright) or the hobbiest mashup artist that releases stuff on youtube etc. Is this fair use of the original material?

I agree though that the digital age really makes no difference. The real change has been a shift is society's values. Me, me, me!

Re:Not just the RIAA (1)

cpt kangarooski (3773) | more than 6 years ago | (#22074098)

Consider the mashup DJs that release their own "creative works" on CD (which they then expect to have covered by copyright) or the hobbiest mashup artist that releases stuff on youtube etc. Is this fair use of the original material?

Maybe. It's certainly transformative. Some mash-ups may use only portions of the works in question, further bolstering their position. As always, you can't make a blanket statement as to what is or isn't a fair use. Each specific case must be considered in light of its own circumstances. But remember that no one seems to have much of a problem with the medium of collage in the world of the visual arts. (Not to mention art by appropriation, such as is practiced by Richard Prince) Why should the audio arts be treated differently?

The real change has been a shift is society's values. Me, me, me!

Copyright has always been about greed. The public only offers copyrights because the public is greedy for the new works that will be created and published, and the offer is limited so that the work falls into the public domain. The mechanism used to get the artists to create is their greed for money. So I don't think that too much has really changed.

Are reasonable blanket statements really so hard? (1)

Anonymous Brave Guy (457657) | more than 6 years ago | (#22075150)

As always, you can't make a blanket statement as to what is or isn't a fair use.

I'm not so sure. The copyright bargain is pretty simple in principle, and it's also pretty simple in principle to establish what (ethically speaking) we might regard as fair use.

For example, I might make a blanket statement that an individual who has a legitimately obtained copy of a work should be free to use that work however they see fit in private for their own benefit, regardless of any literal copying or transformative editing involved.

I might also make a blanket statement that it is reasonable to prohibit redistribution of a legitimately obtained work that is subject to copyright or any derivative work, in any way that materially disadvantages the copyright holder, to anyone else without the copyright holder's consent.

In fact, I think if we could agree those two basic principles, there are very few exceptions required. I think the US does better in law than most places here, by at least codifying four generic principles rather than numerous specific, non-adapting exemptions. But even in the US, I think things are too complicated.

Re:Not just the RIAA (1)

pjmburg (923138) | more than 6 years ago | (#22074984)

As a couple of people have said before, the difference is money. If they sell a mash-up CD without paying royalties, it's bad. It it's just an amateur, I don't see the problem with it.

Re:I'm not confused but the headline is! (3, Insightful)

garcia (6573) | more than 6 years ago | (#22073630)

In addition, now that I've read the article again just because so many parts of it made sense and so many others just pissed me off more:

Books begat films, character merchandising, giant fan guides, remix videos, fan art and other
forms of secondary authorship that simply didn't exist 100 years ago.


100 years ago we didn't have Disney fucking with Copyright then (the Mickey Mouse and Sonny Bono Protection Acts [wikipedia.org] only came about in 1976!) So for us to even bring that shit up in this modern discussion is nothing short of ridiculous.

Let's face the facts here... Copyright has been extended to an unreasonable point so that nothing will ever enter the Public Domain so if anything is different in the "Digital Age" it's the fact that we're more fucked than ever before.

Boo.

Someone didn't read the article... (2, Interesting)

langelgjm (860756) | more than 6 years ago | (#22073684)

There is no difference in Fair Use rights in the "Digital Age". It's the same as it's always been. It's only because of the misinformation campaigns by the RIAA and MPAA that we have a society that's confused about the rights they have had for quite some time.

Someone didn't read the article :-) To quote Rick Cotton (the bad guy):

Fair use in the digital age is the same as fair use in the non-digital age.

First of all, as Mr. Cotton duly notes, and as we often hear here on /., there is no such thing as a fair use "right." It's only a defense against infringement. To respond to your point, I'd argue that since the technology has changed so drastically, not only for enabling infringement, but also for enforcing copyright, the laws ought to be looked at again. What wasn't even on the map when fair use was being hashed out in various cases is now commonplace. It's time to reevaluate. Fair use should change as a result.

Re:Someone didn't read the article... (2, Informative)

j0nb0y (107699) | more than 6 years ago | (#22073890)

By that logic, self defense is not a Right because it is only a defense against a battery charge.

Self defense is a Right, and so is fair use. I'm not sure where this fallacy originated, but it is ridiculous. Actually, I know where it originated. It originated with the RIAA.

So why are /.ers parroting RIAA talking points?

Re:Someone didn't read the article... (1)

langelgjm (860756) | more than 6 years ago | (#22074000)

Well, the truth lies somewhere between, I think. From what I understand, fair use is an "affirmative defense." Sure, you can be charged with murder, but if it's found to be self-defense, you won't be guilty of murder. On the other hand, as I understand it, to invoke fair use, you have to admit to copyright infringement - thus the "affirmative" part. You are saying you ARE guilty, but you should be granted an exception. Self-defense is disputing the charge that you are guilty of anything in the first place.

Re:Someone didn't read the article... (3, Insightful)

langelgjm (860756) | more than 6 years ago | (#22074062)

Sorry to reply again, but this [eff.org] might be of interest:

5. Is Fair Use a Right or Merely a Defense? Lawyers disagree about the conceptual nature of fair use. Some lawyers claim that fair use is merely a defense to a claim of copyright infringement. Although fair use is often raised as a defense, many lawyers argue that fair use can also be viewed as having a broader scope than this. If fair use is viewed as a limitation on the exclusive rights of copyright holders, fair use can be seen as a scope of positive freedom available to users of copyrighted material. On this view, fair use is the space which the U.S. copyright system recognizes between the rights granted to copyright holders and the rights reserved to the public, where uses of works may or may not be subject to copyright protection. Copyright law gives the decision about whether copyright law applies to a particular use in this space to a Federal Court judge, to decide after weighing up all relevant factors and the underlying policies of copyright law.

Re:Someone didn't read the article... (1)

j0nb0y (107699) | more than 6 years ago | (#22074422)

You're right, it is an affirmative defense. But you misunderstand affirmative defenses. Both self defense and fair use are affirmative defenses, but you don't have to admit to the crime to use the defense. Lawyers are allowed to argue in the alternative. Claiming self defense (or fair use) does not surrender anything to the prosecution (or plaintiff). The prosecution must still prove their case to get a guilty verdict.

Let us also remember that the Government cannot grant us Rights. All of us have Rights naturally. The government can only protect them. They can infringe on our Rights, but they can never take them away.

Re:Someone didn't read the article... (1)

langelgjm (860756) | more than 6 years ago | (#22074586)

Let us also remember that the Government cannot grant us Rights. All of us have Rights naturally. The government can only protect them. They can infringe on our Rights, but they can never take them away.

I won't comment on the legal portion of your post, since I'm not well-informed in that area. This part, however, I must take issue with. The government can indeed grant rights - e.g., copyright! What you're talking about are natural rights (or "certain inalienable rights").

Re:Someone didn't read the article... (2, Informative)

Atlantis-Rising (857278) | more than 6 years ago | (#22074082)

Self-defense is not a right. It's an affirmative defense. Sibling poster is slightly confused in use, but not in content.

If you plead self-defense, you are pleading that you DID murder the person, but you shouldn't be punished for it because there were exonerating circumstances (namely that person was a threat to your own safety).

Fair use is similar. You argue that you DID copy the material without the owner's permission, but that there are exonerating circumstances that make it acceptable.

Re:Someone didn't read the article... (1)

j0nb0y (107699) | more than 6 years ago | (#22074282)

I am well aware of how affirmative defenses work.

Just because something works as an affirmative defense in court does not mean that it is not a Right.

I have the Right to defend myself.
And I have the Right to fair use of copyrighted works.

You should also note that lawyers in this day and age are allowed to plead in the alternative. This means that a lawyer could argue both that his client didn't commit the crime, and that his client should be acquitted because he was acting in self defense. Whether or not it is good strategy to do so is obviously questionable, but pleading self defense does not surrender *anything* to the prosecution.

IANAL, but I am a first year law student.

Re:Someone didn't read the article... (2, Interesting)

Atlantis-Rising (857278) | more than 6 years ago | (#22074510)

Except that self-defense is not a right, and neither is fair use. Both concepts have little basis in law.

Now, as to the legal concept of being allowed to plead in the alternative, you'll never see me doing that. It's a disgusting practice that I have never yet seen an honorable purpose for.

Then again, I have a problem with plea bargaining in general, too, and only 2% of cases reach trial. So obviously my views are not well supprted in the judicial community.

Ironically, I was reading the origins of the adversary criminal trial [oup.com] a few days ago, and back in the day the English legal system would not allow lawyers for the defense- they were seen to do nothing more than muddy up the truth by introducing all sorts of extraneous concepts. Old-fashioned indeed, but I feel similarly about most methods of pleadings these days.

In any case, to return to the issue at hand, It is my opinion that intellectual property is a necessary creation of the state for the simple reason that capitalism as a pure system is doomed to fail. It requires a system of economic knowledge which is simply impossible. Similarly, intellectual property is basically 'regulation' of the intellectual marketplace.

Within that framework, then, you have no more right to fair use than you have to unregulated trade. It may be possible under certain circumstances when the legislative context is correct, but it's certainly not guaranteed. It is not a right at all.

Self-defense is arguably similar. The state has a monopoly on the use of force; it may be possible under certain circumstances when the legislative context is correct for an individual to wield force against another, but it's certainly not guaranteed.

Re:Someone didn't read the article... (1)

j0nb0y (107699) | more than 6 years ago | (#22075054)

Self-defense is arguably similar. The state has a monopoly on the use of force

It's clear that you and I have very different opinions on the proper role of government.

Re:Someone didn't read the article... (1)

cpt kangarooski (3773) | more than 6 years ago | (#22074162)

I strongly disagree.

First, fair use is simply the principle that where an otherwise-infringing act is nevertheless fair, and in line with the overall goals of copyright, it is not infringing. I cannot imagine for the life of me what we would need to change about that.

Second, fair use has never been "hashed out." It's an amazingly vague bit of law and it evolves all the time in response to new developments in society.

If you think that there should be some other exceptions to copyright (such as a blanket personal use exception, or something) then implement those independently of fair use. Fair use isn't meant to be clear, it's meant to be a last resort that is capable of applying to any use, or not, as needs demand.

Re:Someone didn't read the article... (1)

langelgjm (860756) | more than 6 years ago | (#22074348)

First, fair use is simply the principle that where an otherwise-infringing act is nevertheless fair, and in line with the overall goals of copyright, it is not infringing. I cannot imagine for the life of me what we would need to change about that.

By change, I meant that what we would traditionally consider fair use should probably be expanded. That's not really changing the doctrine itself, just our understanding of what falls into the category, I suppose.

Second, fair use has never been "hashed out." It's an amazingly vague bit of law and it evolves all the time in response to new developments in society.

By "hashed out," I didn't mean explicitly defined - I simply meant the various cases that refer to it. As you say, it "evolves." I agree, and was saying that perhaps it ought to evolve to a point where more things are considered fair use than are now.

Re:Someone didn't read the article... (1)

cpt kangarooski (3773) | more than 6 years ago | (#22074454)

By change, I meant that what we would traditionally consider fair use should probably be expanded.

We really don't traditionally consider anything to be a fair use. Each specific use -- not type of use, but each specific _act_ -- is considered on its own merits. There have been parodies and satires that were not fair uses, quoting in news reporting that was unfair, etc.

If you want to make certain classes of use non infringing, you want statutory exceptions. You don't want to screw around with fair use.

Re:I'm not confused but the headline is! (2, Informative)

Shados (741919) | more than 6 years ago | (#22073724)

There's misinformation on both sides. The amount of people who think that your right to a backup also includes making "backups" JUST IN CASE your nearest Blockbuster got broken into and had everything stolen, so you can be the hero and give em back copies of what they once had (/sarcasm) is pretty staggering, too.

Re:I'm not confused but the headline is! (1)

webmaster404 (1148909) | more than 6 years ago | (#22073826)

But even renting a video from a store doesn't make studios money. It could be said that because they buy films it is harming the business, but for any studio, (or indeed the rental store) has little right to complain.

Re:I'm not confused but the headline is! (1)

adona1 (1078711) | more than 6 years ago | (#22073922)

Actually, I read a few years back (back in the days of VHS!) that rental stores pay an exorbitant amount for their films, around the realms of $100 or so. That gives them the licence to rent the films out, something forbidden for regular licensees (or so the FBI warning tells me).

No citation, and things may well have changed. Anyone have new info?

Re:I'm not confused but the headline is! (1)

webmaster404 (1148909) | more than 6 years ago | (#22073986)

Didn't know anything about that. I was figuring they paid $10-$20 per copy and made money after the 2-4th rental. Or it could be $100 per title rather than copy (because even the small rental stores have 20 or so DVDs for every major release) because if it was $100 per copy it would take 10-40 rentals before it made a profit.

Re:I'm not confused but the headline is! (1)

Zerth (26112) | more than 6 years ago | (#22074164)

Back when it was just VHS, rental tapes cost between 70-150 USD. After a while, Blockbuster made a deal with several companies to get them to trade the upfront cost for a percentage of fees. That way they could buy a huge number of copies up front, guarantee they were in stock, and still have the same $ investment in inventory.

That's also the reason Blockbuster did that "no late fees, you bought it" crap recently, it was cheaper than sending people to collections.

Re:I'm not confused but the headline is! (2, Informative)

cens0r (655208) | more than 6 years ago | (#22074018)

In the past (when VHS first came out) a video tape was released and it was very expensive. So expensive that only video stores would purchase it. At a later date, a home version may have been released at a regular price. Of course, as the years went on more people wanted to buy tapes and the studios realized they could make more money by just releasing it to everyone. By the time DVD was out the two release dates was almost entirely phased out.

Re:I'm not confused but the headline is! (2, Interesting)

tungstencoil (1016227) | more than 6 years ago | (#22074330)

Offtopic, but here it goes...

Back in the day, I worked for a "big video store" (putting myself through school) - this was strictly VHS days. For most movies, think hard... ever notice they hit the rental shelves before you could buy it at Target or Wal-Mart? That's because of the "exorbitant amount for their films" (and $100 is about right). This is how the studios ensured they made a good chunk of cash off of VHS even though there was a lot of rental (and never mind that eventually the big rental houses entered into revenue sharing agreements). Once the fever died down, the price would drop to a "sell-through" price.

Exceptions were made, usually around family films and such. However, it did make it interesting when someone wrecked a brand-new tape, and you had to explain why you needed to charge them $104 to replace...

Re:I'm not confused but the headline is! (1)

Dun Malg (230075) | more than 6 years ago | (#22075130)

Actually, I read a few years back (back in the days of VHS!) that rental stores pay an exorbitant amount for their films, around the realms of $100 or so.
This is correct. When movies were new releases, they were quite expensive.

That gives them the licence to rent the films out, something forbidden for regular licensees
Not true. You could buy a movie and rent it out to whomever you wished, for whatever price you wished. You require no special license to lend your property, a legitimate copy of a movie, to someone else, profit being the motive or not.

(or so the FBI warning tells me).
Where does the FBI warning say anything about loaning out individual legitimate copies of a movie? Read it again. Special licenses are required for things like public performance.

No citation, and things may well have changed. Anyone have new info?
Nothing new, but I do have correct information. Nothing about video rental has changed since then, other than that squeezing the rental stores is no longer as profitable for the studios, as they've found they can make more money by just selling the dang things right off the bat. 20 people buying a new release movie for $10 each (because it's cheap and convenient) makes them more money than 20 people renting one copy the movie from Blockbuster, who paid $100.

Re:I'm not confused but the headline is! (5, Insightful)

curunir (98273) | more than 6 years ago | (#22073756)

One thing I found interesting about the article is that the entertainment lawyer makes one good point while trying to make a point that is almost the opposite.

From the article:

But, as a technical legal matter, fair use is not a "right," a misconception and misstatement frequently made these days.
While his point is that fair use is more of a privilege than a right, I think there's a much different interpretation of what he's saying that is important to consider.

He's absolutely correct that fair use isn't a right, it's an exception. But it's an exception to the rights of the copyright holder. And this distinction is important because it underscores how entertainment companies misrepresent copyright. Rather than copyright defining the few excepted uses allowed to people/entities who don't hold the copyright, it actually defines the few rights granted exclusively to the copyright holder.

And this is an important observation about the intent of copyright. Namely, that anything not explicitly granted to the copyright holder is permissible rather than forbidden. The big content producers would like copyright to be a limited set of things that we (those not producing the content) are allowed to do with their content, which they believe they own. But when defending our rights, it's important to remember that copyright is actually a limited set of things that we're not allowed to do and that content cannot be owned, only protected. And this is the principle that should be applied whenever something falls outside of what is explicitly stated in the Copyright Act...that everything not covered is allowed rather than forbidden.

Re:I'm not confused but the headline is! (1)

SupRspi (1165065) | more than 6 years ago | (#22074236)

Curunir,

I'm hoping you don't mind, I used your explanation of copyright on my latest blog post, attributed to you of course. I've been having a long running discussion of copyright with my family, esp. concerning our Canadian Copyright reform, and this was an awesome explanation of something I haven't been able to convey very well.

Link is http://jeffandsamplus2.wordpress.com/2008/01/16/as-seen-on-slashdot-2/ [wordpress.com] in case you want to read it and tell me to nuke it, cause your comment is copyrighted. ;)

Re:I'm not confused but the headline is! (1)

curunir (98273) | more than 6 years ago | (#22075212)

I hereby grant you and anyone else who reads it a perpetual and unrestricted license to use the afore-mentioned work in whatever context you see fit.

(IANAL, but I think that's enough to CYA :-)

Re:I'm not confused but the headline is! (1, Insightful)

Anonymous Coward | more than 6 years ago | (#22074448)

I think he just means that fair use is an affirmative defense -- even if it's very obvious, the defendant still has the burden of proof. If it were a right then the initial burden would be on the plaintiff.

That's facially true, but it raises an important point -- given that in the U.S., parties pay their own court costs, even where the fair use defense is clear (which is rare), lawsuits still have deterrent value if they can be levied at ordinary citizens, because of the inevitable cost of defending the suit. The subtle burden-allocation here is a significant part of the problem, really.

Re:I'm not confused but the headline is! (0)

Anonymous Coward | more than 6 years ago | (#22075142)

It's important to remember that the majority of copyright cases are civil, not criminal. So neither party has to prove anything, they only have to convince the judge or jury that the preponderance of the evidence supports their claim. The prosecution presents and argument as to why they believe something isn't fair use and the defense presents an argument as to why they believe that something is fair use and the more convincing legal argument wins.

If someone was claiming fair use as a defense in a criminal case, the burden for proving that the usage was not, in fact, covered by fair use would fall on the prosecution. But criminal prosecutors pretty much stay out of copyright issues when such matters are concerned. They're far more likely to take on cases where copyright abuses are blatant, high volume and for-profit and leave the lesser, more subtle, offenses to civil courts where monetary recompense is a much more appropriate punishment than prison.

Not that that, in any way, contests your point that fair use exceptions for those who cannot afford to defend themselves are almost non-existent, I just wanted to point out that, for the most part, there is no "burden of proof" when it comes to copyright and fair use.

Re:I'm not confused but the headline is! (1)

DerekLyons (302214) | more than 6 years ago | (#22074522)

He's absolutely correct that fair use isn't a right, it's an exception. But it's an exception to the rights of the copyright holder. And this distinction is important because it underscores how entertainment companies misrepresent copyright. Rather than copyright defining the few excepted uses allowed to people/entities who don't hold the copyright, it actually defines the few rights granted exclusively to the copyright holder.

Huh? Copyright does no such thing - copyright defines the rights of the copyholder ('he can do pretty much what he wants' is a fair first order summation), and then defines fair use as exceptions to that broad slate of rights.
 
 

And this is an important observation about the intent of copyright. Namely, that anything not explicitly granted to the copyright holder is permissible rather than forbidden.

No, it's not an important observation. It's a near complete misstatement of the facts based on a near complete lack of understanding of how copyright works.
 
 

The big content producers would like copyright to be a limited set of things that we (those not producing the content) are allowed to do with their content, which they believe they own.

Oddly enough, that is pretty much exactly how copyright works..

Re:I'm not confused but the headline is! (1, Informative)

Anonymous Coward | more than 6 years ago | (#22074976)

You might want to read up on copyright, since you're pretty misinformed.

To start with, the copyright office has a FAQ [copyright.gov] that's written in non-legalese that will give you the basics. Quoting from the very first entry:

Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works.
So far so good...that's exactly what was said by the poster you're replying to.

Continuing:

Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
  • To reproduce the work in copies or phonorecords;
  • To prepare derivative works based upon the work;
  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
  • To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work;
  • In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
That looks damn near close to an enumeration of the protections offered the creator by copyright...and it's hardly unlimited, as you suggest.

But wait, there's more!

It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope....One major limitation is the doctrine of "fair use," which is given a statutory basis in section 107 of the 1976 Copyright Act.
Damn, now that sounds like the exact point being made by the poster you were replying to.

And yes, I've read the entirety of the legalese, and this summation is, while simplistic, entirely accurate (as one would hope, seeing as how it's published by the US copyright office). So you might want to have a good read before you pollute the slashdot forums with your uninformed, self-righteous drivel.

Re:I'm not confused but the headline is! (2, Interesting)

porpnorber (851345) | more than 6 years ago | (#22075098)

Even more important to note is that there are no rights, only privileges. Guantanamo Bay proves this: in the view of the US Government, even the protections of the Constitution are there only insofar as the President feels like extending them. More broadly, if 'self defense' is a defense, or capital punishment is permitted, then there is clearly no inalienable right to life, even in legal fiction. (Outside of legal fiction, of course, you've always been able to smash someone over the head with a rock.)

My point is not that the US sucks; it's that all of these things—even the privilege of breathing—are negotiable, and that the official mechanism for negotiating them is to vote; in this case for someone who actually gives a damn about people. (Traditionally, plan B is violent revolution, but that's no good—that's part of the pattern that needs to be fixed.)

The interesting thing about copyright as applied to people is that artists like to be recognised for their work, and they like to have an income. Interestingly, artists who rework the work of other artists generally have no trouble with this (though they have the same pair of concerns themselves, of course). It is corporations who want to be seen as the owners and originators of works that were in fact executed by people who they paid, or bought from, or stole from (pop quiz, from the business of most readers here: how many Linux kernel contributors can you name? How about Vista?).

I think the reason for this is that corporations, judging their success by market share, imagine themselves to be living in a zero-sum world, where they con only 'own' something insofar as other people do not. Individuals, on the other hand, who clearly have no hope of getting it all (whatever 'it' may be) are generally happy if their own reputation, or income, or standard of living, increases, even if other people's does too.

Of course, the parent's point that the law says what the law says and that there is a disinformation campaign underway to persuade you that all rights are reserved to some corporation by default, and indeed that peer-to-peer protocols are felonious by nature, oh, let me see, and that security research is immoral, and ... —well, the point is entirely well taken. And we mustn't be taken in. But it's only a small corner of the overall picture. Someone writes the rules, and presently, they are out of control.

Fair use (2, Insightful)

adona1 (1078711) | more than 6 years ago | (#22073510)

My personal view on fair use is much the same as my view on downloading - fine if you do it for yourself or with no intention of profiting from it, but bad if you attempt to sell it, whether through burnt DVDs in the market or using clips from films/pictures/music to bring people to your revenue generating website, and so on.

It's a yin and yang - downloading or fiddling around with videos or music may cost some sales, but it can also generate new fans, who will purchase when they otherwise wouldn't. So what if splicing 3 or 4 clips together doesn't have much artistic merit? That's a purely subjective call, and in this age, it seems that computer software is the popular artistic tool of choice.

Re:Fair use (-1, Troll)

Anonymous Coward | more than 6 years ago | (#22073934)

my fanny hole smells like poo poo

Re:Fair use (1)

cpt kangarooski (3773) | more than 6 years ago | (#22074254)

So if I were, say, Mad Magazine, and I parodied a movie and sold copies of the magazine in which the parody was printed, you'd be against it? Or if I were a book critic and I quoted a book in my newspaper column, etc.? What if the review pans the book, causing it to flop in the marketplace?

Just because you do it for profit, or it affects the economic value of the work used doesn't mean it isn't fair use. You need to look at the totality of the circumstances. The current test does a decent job of this.

Re:Fair use (1)

adona1 (1078711) | more than 6 years ago | (#22074640)

Parody, reviews or analysis aren't really what I was referring to....I was meaning more online use (ie using a song as a background to a youtube video, posting a photo to your blog, even downloading a TV show). What you described would fall under traditional fair use, which I'm all for. I meant that for the uses I described (which generally don't fall under fair use) there should be much more leniency, unless the person infringing is attempting to somehow profit from it.

I probably wasn't quite clear enough, but it's been several hours since my last coffee ;)

Re:Fair use (1)

TheSpengo (1148351) | more than 6 years ago | (#22074498)

But people who do sell pirated things think of it more as a service to people who cannot afford full legal copies. If these people did not exist, I highly doubt their buyers would be spending money on full-price dvds, cds, and software. It may seem like a rip-off to you, but their buyers probably don't have broadband internet to download the films themselves either. I don't think the music and film industry is losing any money on this form of piracy either.

Re:Fair use (1)

adona1 (1078711) | more than 6 years ago | (#22074740)

I'd view it more that they think of it as a service to their wallet ;)

My own view (feel free to take it or leave it) is that making a copy for yourself is *comparitively* victimless. Trying to make a buck from it suddenly gives more credence to the 'lost sales' mantra frequently trotted out. Car analogy - I walk down the street & find a magic box that creates perfect copies, and use it to make a new Ford, which I take. Wasn't planning on buying one, but take the copy as no one loses their Ford as a result. Compare - I want to buy a Ford, so buy a hot one from a shady backlot. That is a lost sale, as I could otherwise have bought a new Ford.

Man, car analogies suck :)

Re:Fair use (1)

Cal Paterson (881180) | more than 6 years ago | (#22074526)

This persistent idea I frequently see that for-profit use deserves less rights than non-profit use.

If something is wrong to do for free, it's wrong to do for profit as well.

Additionally, "fair use" is moronic. What I own is mine, and what you owe is yours. What I do with what I own, so long as it doesn't affect anyone, is no business of anyone. It is not the governments' job to guarantee a market for a business by outlawing normal use (ie copying and resale) of certain pieces of personal property.

Re:Fair use (2, Informative)

15Bit (940730) | more than 6 years ago | (#22074596)

> My personal view on fair use is much the same as my view on downloading - fine if you do it for

> yourself or with no intention of profiting from it, but bad if you attempt to sell it,
> whether through burnt DVDs in the market or using clips from films/pictures/music to bring
> people to your revenue generating website, and so on.

And this pretty much used to be the police attitude to copying CD's - arrest the guys selling out the back of a van but leave joe public alone. This was a largely agreeable status quo as only a limited number of guys could copy stuff, it cost money to do so, and a lot of folk would rather pay the full rate and get a decent quality inlay etc.

But in the broadband age the content producers are worried that everyone is able to download and it costs nothing. The music is the same whether you download an illegal version or a legal one, so there is therefore no compelling reason to pay. Its not that you are/aren't profiting, its that its so easy and free that everyone can do it. It therefore undermines their business model with the logical conclusion that with everyone downloading, no-one is paying. Now you could argue that this represents a flaw in their business model, but its still illegal.

Re:Fair use (1)

Max Night (1221500) | more than 6 years ago | (#22074696)

My personal view on fair use is much the same as my view on downloading - fine if you do it for yourself or with no intention of profiting from it...
But if you download a movie without paying for admission, or rental, aren't you profiting from it?

Re:Fair use (1)

adona1 (1078711) | more than 6 years ago | (#22074782)

I've thrown out about a spindle's worth of DVDs because I've gone on to buy legitimate copies. So yes, short term, I'm profiting by downloading but long term, many others are because of my 'previewing'. It's a grey area that rapidly becomes darker if I go on to sell copies.

Answer.. (1)

LingNoi (1066278) | more than 6 years ago | (#22073522)

The companies have money so they can take what they want without getting the million dollar lawsuit from Bob for taking his little music tune and putting it in their car advert.

So I guess fair use re-defined for today would be asking yourself the question "Could you get into a lawsuit over this piece of IP?". I think that copyright is pretty difficult to judge in the first place.

For example, this comment I am writing. If someone re-posts it, should I be able to sue them for infringing my copyright for re-distributing my work. I gave you permission to read it only! When does a few lines of text become big enough to be said "Ok taking all this would be copyright infringement"?

There is also a personal gripe I have which is the copyright blackhole. A game I really liked went bankrupt and all the code went down the copyright drain. No one owns it, but it is illegal to re-license, re-distribute, whatever because I am not the author. The author can't legally give it to me either because although he has the source, he doesn't own the IP to source, no one does.

Re:Answer.. (1)

Goblez (928516) | more than 6 years ago | (#22073596)

The companies have money so they can take what they want without getting the million dollar lawsuit from Bob for taking his little music tune and putting it in their car advert. So I guess fair use re-defined for today would be asking yourself the question "Could you get into a lawsuit over this piece of IP?". I think that copyright is pretty difficult to judge in the first place. For example, this comment I am writing. If someone re-posts it, should I be able to sue them for infringing my copyright for re-distributing my work. I gave you permission to read it only! When does a few lines of text become big enough to be said "Ok taking all this would be copyright infringement"? There is also a personal gripe I have which is the copyright blackhole. A game I really liked went bankrupt and all the code went down the copyright drain. No one owns it, but it is illegal to re-license, re-distribute, whatever because I am not the author. The author can't legally give it to me either because although he has the source, he doesn't own the IP to source, no one does.
Infringement or reference?

Re:Answer.. (-1, Troll)

Anonymous Coward | more than 6 years ago | (#22073888)

Lord rest System Shock 2. It doesn't work on NT based computers.

Re:Answer.. (1)

nonsequitor (893813) | more than 6 years ago | (#22074024)

If no one owns the IP, there's no one to sue you for infringing. If someone can sue you for infringing, then we have found the owner.

There should be some sort of IP "salvage rights" or preferably lapse into the public domain. Since the IP is no longer owned, it makes sense that anyone should be able to use and re-use it at will.

Re:Answer.. (1)

maglor_83 (856254) | more than 6 years ago | (#22074360)

If nobody owns the IP, then who is going to sue you for distributing it?

Re:Answer.. (1)

geekoid (135745) | more than 6 years ago | (#22074652)

I think it would be a pretty strong argument that when the company goes away, it would revert back to the original owner.
That said, if nobody owns it, you can't break copyright law because no one owns it.

Copyright black hole is an illusion.

Re:Answer.. (1)

corsec67 (627446) | more than 6 years ago | (#22075080)

Copyright black hole is an illusion. That is because black holes distort light... ~
(interesting punctuation idea...)

One problem with "if the company is gone, you can copy it" is if someone else buys the company from the original owners. Thus, even though there is nobody to sue you now, doesn't mean that there will never be anybody that could sue you.
(My business law knowledge is almost nil, so it should be easy to correct me here)

Certainly, once a company is gone, their works should be in public domain.

Compelling example of fair use: (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#22073532)

Well, step aside my friend
I've been doing it for years
I say, sit on down, open your eyes
And open up your ears

Say
Put a tree in your butt
Put a bumblebee in your butt
Put a clock in your butt
Put a big rock in your butt
Put some fleas in your butt
Start to sneeze in your butt
Put a tin can in your butt
Put a little tiny man in your butt
Put a light in your butt
Make it bright in your butt
Put a TV in your butt
Put me in your butt
Everybody say

I, hey, that's, man, I ain't putting no trees in nobody's butt,
no bees in nobody's butt, putting nothing--
You must be out your mind, man,
y'all get paid for doing this?
Cause y'all gotta get some kind of money
Cause this don't sound like the kind of--
I'd rather golf, to be perfectly honest,
than put somethin in somebody's butt
to be truthful

Well step aside my friend and let me
show you how you do it
When big bad E just rock rock to it

Put a metal case in your butt
Put her face in your butt
Put a frown in your butt
Put a clown in your butt
Sit on down in your butt
Put a boat in your butt
Put a moat in your butt
Put a mink coat in your butt
Put everything in your butt
Just start to sing about your butt
Feels real good

ma83 (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#22073544)

the official GAY hav1ng lost 93% standpoint, I don'7 free-loving climate Playing so it's OpenBSD. How many troubled OS. Now gone Romeo and

"adding value" is nebulous because value is (1)

postbigbang (761081) | more than 6 years ago | (#22073592)

It's different to everyone. I suggest that fair use constitutes parody, abbreviated (less than half the content) in quotes, and where images or sounds are modified, upfront declaration that this has been done, no matter who the artist or the type of content is. Anything modified from its original should be declared, IMHO

Re:"adding value" is nebulous because value is (1)

webmaster404 (1148909) | more than 6 years ago | (#22074094)

But what reason to put "this content has been changed"? It is highly unlikely that someone will look at a parody and think it is the real thing and most editors put their name at the front. It also raises questions about how it should be done. If a TV show made in say Japan gets translated here and some content edited does it need a notice? Or will this be like the "this movie has been reformatted to fit your screen" to which people reply "duh!".

Re:"adding value" is nebulous because value is (1)

cpt kangarooski (3773) | more than 6 years ago | (#22074404)

So you are against being able to time shift shows from the TV (thus killing Tivo) and against being able to space-shift music from a CD to another device (thus killing mp3 players)?

Your view isn't just overly narrow (in fact it is also broader in some places than what is currently allowed), but is instead completely unrelated to what fair use currently is.

There is no master list of fair and unfair uses. All the law says is that fair uses are lawful, and that a court can look at various circumstances regarding any specific use in question in order to see whether or not it is fair. It's very clever in that it doesn't include or exclude anything in particular. Anything can be a fair use, but nothing is guaranteed to be. Further, it allows for newly invented uses (no one from the mid-19th century, when fair use was developed, imagined time shifting television shows) to be protected without having to constantly fight battles in Congress.

Fair use is a catch-all, but there are also plenty of specific exceptions in the statutes (e.g. covering a song). I think that the uses you suggest would be better off as statutory exceptions. There's no need to screw around with fair use. Even if you have good intentions, well, we know what's paved with those.

What about this case? (0)

Anonymous Coward | more than 6 years ago | (#22073604)

I wonder if the HD-DVD "downfall" posted on youtube the other day would constitute as fair use, as it's not exactly a parody of the movie, but of an unrelated situation: http://www.youtube.com/watch?v=friS4OOcdgQ [youtube.com]

just what is a fair day's pay? (-1, Troll)

Anonymous Coward | more than 6 years ago | (#22073610)

obviously there's a great difference between yOURs & 'theirs'. almost everything is skewed nowadaze. some say it's an upside DOWn kingdumb? let yOUR conscience be yOUR guide. you can be more helpful than you might have imagined. there are still some choices. if they do not suit you, consider the likely results of continuing to follow the corepirate nazi hypenosys story LIEn, whereas anything of relevance is replaced almost instantly with pr ?firm? scriptdead mindphuking propaganda or 'celebrity' trivia 'foam'. meanwhile; don't forget to get a little more oxygen on yOUR brain, & look up in the sky from time to time, starting early in the day. there's lots going on up there.

http://news.yahoo.com/s/ap/20071229/ap_on_sc/ye_climate_records;_ylt=A0WTcVgednZHP2gB9wms0NUE [yahoo.com]
http://news.yahoo.com/s/afp/20080108/ts_alt_afp/ushealthfrancemortality;_ylt=A9G_RngbRIVHsYAAfCas0NUE [yahoo.com]
http://www.nytimes.com/2007/12/31/opinion/31mon1.html?em&ex=1199336400&en=c4b5414371631707&ei=5087%0A [nytimes.com]

is it time to get real yet? A LOT of energy is being squandered in attempts to keep US in the dark. in the end (give or take a few 1000 years), the creators will prevail (world without end, etc...), as it has always been. the process of gaining yOUR release from the current hostage situation may not be what you might think it is. butt of course, most of US don't know, or care what a precarious/fatal situation we're in. for example; the insidious attempts by the felonious corepirate nazi execrable to block the suns' light, interfering with a requirement (sunlight) for us to stay healthy/alive. it's likely not good for yOUR health/memories 'else they'd be bragging about it? we're intending for the whoreabully deceptive (they'll do ANYTHING for a bit more monIE/power) felons to give up/fail even further, in attempting to control the 'weather', as well as a # of other things/events.

http://video.google.com/videosearch?hl=en&q=video+cloud+spraying [google.com]

dictator style micro management has never worked (for very long). it's an illness. tie that with life0cidal aggression & softwar gangster style bullying, & what do we have? a greed/fear/ego based recipe for disaster. meanwhile, you can help to stop the bleeding (loss of life & limb);

http://www.cnn.com/2007/POLITICS/12/28/vermont.banning.bush.ap/index.html [cnn.com]

the bleeding must be stopped before any healing can begin. jailing a couple of corepirate nazi hired goons would send a clear message to the rest of the world from US. any truthful look at the 'scorecard' would reveal that we are a society in decline/deep doo-doo, despite all of the scriptdead pr ?firm? generated drum beating & flag waving propaganda that we are constantly bombarded with. is it time to get real yet? please consider carefully ALL of yOUR other 'options'. the creators will prevail. as it has always been.

corepirate nazi execrable costs outweigh benefits
(Score:-)mynuts won, the king is a fink)
by ourselves on everyday 24/7

as there are no benefits, just more&more death/debt & disruption. fortunately there's an 'army' of light bringers, coming yOUR way. the little ones/innocents must/will be protected. after the big flash, ALL of yOUR imaginary 'borders' may blur a bit? for each of the creators' innocents harmed in any way, there is a debt that must/will be repaid by you/us, as the perpetrators/minions of unprecedented evile, will not be available. 'vote' with (what's left in) yOUR wallet, & by your behaviors. help bring an end to unprecedented evile's manifestation through yOUR owned felonious corepirate nazi glowbull warmongering execrable. some of US should consider ourselves somewhat fortunate to be among those scheduled to survive after the big flash/implementation of the creators' wwwildly popular planet/population rescue initiative/mandate. it's right in the manual, 'world without end', etc.... as we all ?know?, change is inevitable, & denying/ignoring gravity, logic, morality, etc..., is only possible, on a temporary basis. concern about the course of events that will occur should the life0cidal execrable fail to be intervened upon is in order. 'do not be dismayed' (also from the manual). however, it's ok/recommended, to not attempt to live under/accept, fauxking nazi felon greed/fear/ego based pr ?firm? scriptdead mindphuking hypenosys.

consult with/trust in yOUR creators. providing more than enough of everything for everyone (without any distracting/spiritdead personal gain motives), whilst badtolling unprecedented evile, using an unlimited supply of newclear power, since/until forever. see you there?

"If my people, which are called by my name, shall humble themselves, and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land."

meanwhile, the life0cidal philistines continue on their path of death, debt, & disruption for most of US. gov. bush denies health care for the little ones;

http://www.cnn.com/2007/POLITICS/10/03/bush.veto/index.html [cnn.com]

whilst demanding/extorting billions to paint more targets on the bigger kids;

http://www.cnn.com/2007/POLITICS/12/12/bush.war.funding/index.html [cnn.com]

& pretending that it isn't happening here;

http://www.timesonline.co.uk/tol/news/world/us_and_americas/article3086937.ece [timesonline.co.uk]
all is not lost/forgotten/forgiven

(yOUR elected) president al gore (deciding not to wait for the much anticipated 'lonesome al answers yOUR questions' interview here on /.) continues to attempt to shed some light on yOUR foibles. talk about reverse polarity;

http://www.timesonline.co.uk/tol/news/environment/article3046116.ece [timesonline.co.uk]

Fair use is ..... (1)

3seas (184403) | more than 6 years ago | (#22073634)

only using every other bit.

Screw myminicity! (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#22073648)

Ok, it's done, I'm fed up.

Vigilante style repercussions are not my usual style but the myminicity.com folks have managed to get me irritated once too many. Myminicity.com 'rewards' their users for spamming sites with links that point back to myminicity.com.

I'm a regular visitor to slashdot and since a couple of weeks a bunch of jerks have been placing cloaked links to 'myminicity.com' in just about every story.

Myminicity.com is complicit in this because they actively encourage users to send traffic to those links in order to boost their status in the system.

To give the myminicity.com jackasses a run for their money I've come up with a very simple plan.

Fight fire with fire.

Support the official Slashdot mymincity page:

Slashdotcity! [myminicity.com]

That's right! Post this link in your blogs, on slashdot articles, everywhere you can. We badly need links to /tra, /ind, /sec, /env because are population is bleeding away.

Together, people, we can beat them at their own game!

Technically this is probably illegal, but call me reckless. As I said, I'm pissed off.

Re:Screw myminicity! (1)

corsec67 (627446) | more than 6 years ago | (#22075210)

If you want some-what illegal vigilante justice, just use some loops and wget:

wget -r http://minicity.com -O /dev/null

or a loop:

while [1]; do
      wget http://http://slashdotcity.myminicity.com/ -O /dev/null
done

and get many people to do that.

Mash-Ups, Re-Mixes... (1)

Efialtis (777851) | more than 6 years ago | (#22073658)

If each individual item within a copyrighted work is copyrighted, then how would we ever legalize mash-ups and re-mixes...it has been happening for years...
but I think, and this is just my opinion...
If each little bit contributes to the whole of a work (a Mash-up or Re-mix) then that mash-up or re-mix becomes a "new work"...
I agree that it is fair use...simply because it isn't a total and whole copy of the work, it is a part of the work to create a new work.

"work that adds to the value of the original" (3, Interesting)

Facetious (710885) | more than 6 years ago | (#22073682)

And how would we measure that? Adding content != adding value. Conversely, a new blend of old content can change the contents "feel," message, and/or meaning. I would love to see the "value matrix of subjective content."

Re:"work that adds to the value of the original" (1)

UnknownSoldier (67820) | more than 6 years ago | (#22073730)

> And how would we measure that? Adding content != adding value.

Exactly.

1) Sometimes "removing" content is adding value! (i.e. Star Wars 1 fan edits with less Jar-Jar)

2) What determines "value"? Value is _arbitrary_ between people.

By His Own Example (1)

ryanisflyboy (202507) | more than 6 years ago | (#22073704)

By his own example, splicing action scenes together could create value. What if they are action scenes of one particular type - showing how the same 'move' is applied in different films. Or, what if the action scenes create their own kind of poetry when put in to the right order. Maybe it shows how a genre has changed over time to reflect current morality. At the end of the day you end up with the same argument - what's fair use any way? If value is the only determining factor - then how do you measure value? To me, you end up at the same stopping point.

What is Fair Use? (1)

Tovok7 (948510) | more than 6 years ago | (#22073732)

I don't know what it is, but I know what it should be: non-commercial private use!

fair use is for the people (1)

yakumo.unr (833476) | more than 6 years ago | (#22073736)

Who are they, or who is anyone to state that something is 'adding value', that's ENTIRELY subjective with something like this.

There is no need what so ever to clarify 'fair use' any further than it already written in law, especially not when the 'clarification' proposed is clearly only to reduce the rights of the very people they were introduced to protect.

Waitaminute... (1)

Ghostworks (991012) | more than 6 years ago | (#22073762)

Wu's position is that 'it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use. This simple concept would bring much clarity to the problems of secondary authorship on the web.'

So his definition of Fair Use is a work which uses the original work, but is at the same time substantially contributes to it by adding primarily new work or including substantial additional commentary or editting....

I'm no lawyer, but doesn't that sound like a http://en.wikipedia.org/wiki/Derivative_work [wikipedia.org] Dirivite Work? Wouldn't that mean his definition of "fair use" is pretty much the same as "usable only with permission"?

Added Value (0)

Anonymous Coward | more than 6 years ago | (#22073812)

Of course there is value added. There is value to the user otherwise he wouldn't do it and there is value with sites like YouTube because it generates revenue when people look at it, which they do because it -duh- has value.

ha (0)

Anonymous Coward | more than 6 years ago | (#22073886)

in RIAA's mind their is no fair use, if you didn't buy the original cd or buy the song from a legal service like itunes. its an illegal copy of the song, even ones you ripped from the cd's you paid for at a store.

AMV = Perfect examples of fair use (2, Insightful)

Spy der Mann (805235) | more than 6 years ago | (#22074014)

Anime Music Videos are perfect examples of fair use. You can take a speech from a comedy show, mix it with some scenes, and have a hilarious mix entitled "the flying car" [youtube.com] . A much more artistic example is "I must be dreaming" [youtube.com] , which not only adds clips, but some special effects as well. Or if you like violence, how about a little Mortal Kombat [youtube.com] ?

And last, but not least, AMV Hell 3: The Motion Picture [youtube.com] and AMV Hell 4: The last one [youtube.com] . Some of the clips there got me laughing for hours.

What would be of Entertainment and creativity online if all the music and anime producers sued the AMV makers for copyright infringement? :(

Here's Where Cotton is Right, Wu Wrong (1)

reallocate (142797) | more than 6 years ago | (#22074070)

Cotton is correct to argue that the simple ability to copy and manipulate digital data does not translate to fair use. We've had the capability to copy and make unlimted copies of printed data for centuries and that has never been considered fair use. You can't make special rules for data on one kind of medium versus another.

Beyond that, Cotton is mostly wrong.

Wu's "added value" position is wrong. Who is to determine if value has been added or eliminated? For that matter, what is "value"? If I copy a popluar song, add 5 seconds of silence at the end and call it "added value", can I then sell it under my own name?

Other than that, he's mostly right.

Re:Here's Where Cotton is Right, Wu Wrong (1)

zrq (794138) | more than 6 years ago | (#22074682)

If I copy a popluar song, add 5 seconds of silence at the end and call it "added value", can I then sell it under my own name?

No.

If [commercial software company] takes the source code from a GPL licensed project, adds a few lines of their own, can they call it "added value" and sell it under a (closed source) commercial license ?

Nope, can't do that either.

Re:Here's Where Cotton is Right, Wu Wrong (2, Interesting)

reallocate (142797) | more than 6 years ago | (#22074834)

How do the courts determine when an altered copy, of anything, represents "added value"?

If the courts can do that, how, then, can they decide how to apportion the revenue from the altered copy?

My fundamental problem with the notion of added value is that it is an "in the eye of the beholder", "he says, she says", kind of opinion. In practical terms, no one is likely to tell a court that his altered copy removes value.

Tim Wu's position is just plain wrong. (1)

techno-vampire (666512) | more than 6 years ago | (#22074130)

From the summary: ' Wu's position is that 'it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use.'


> No, that is not what fair use is. Fair Use [wikipedia.org] is that exception written into copyright law since 1976 that allows people to quote and/or copy small parts of a copyrighted work without permission or payment for certain specific reasons. If he doesn't even know what the term means, why should we care what he says about it? There's no plausible reason to think he's right.

No problem with Fair Use or Copyright Protection (1)

layer3switch (783864) | more than 6 years ago | (#22074152)

I don't see problem with copyright protection or fair use. I see problem with punishment due to copyright violation. In retrospect, copyright law is heading toward colonial era when witchcraft and runaway slave is an offense punishable enough to be burned at the stake.

value (1)

Merovign (557032) | more than 6 years ago | (#22074230)

"work that adds to the value of the original, as opposed to substituting for the original, is fair use."

I don't think that defining a subjective term by the use of another subjective term clarifies anything.

This is, and will remain, a thorny issues because, whetever the long-term interests of both parties and their understanding thereof, the short-term interests collide. Given the prevalence of piracy, I'm not sure even a crystal clear definition will solve the problem.

It seems to me that the definition of copyrights and the definition, discussion and litigation of that concept is likely to be viewed historically as a process and not an event.

In other words, this discussion will pretty much be endless.

Phantom Edit? (1)

ciggieposeur (715798) | more than 6 years ago | (#22074876)

Whoever said we have to add value by adding original material? A lot of value can be added to some pieces by *removing* material, e.g. The Phantom Edit.

Favorite Action Scenes (1)

Myopic (18616) | more than 6 years ago | (#22075038)

How is making a compilation of awesome fighting scenes not adding original contribution to the copyrighted works? Were the original copyrighted works simply compilations of awesome fighting scenes? Okay, well maybe king fu movies are a bad example because some of them really are just compilations of awesome fighting scenes.
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