Fair Use Is Not an Exception to Copyright, It’s Essential to Copyright • Hacker News Board

Re: Fair Use Is Not an Exception to Copyright, It’s Essential to Copyright

#11

Post by nitrogen » Thu, Jan 22, 2015, 4:43 PM UTC

snowwrestler wrote: post #6

skywhopper wrote: post #2

The EFF brings up potential new copyright modifications to tighten down on fair use. It's important to remember that in 1998, the US Congress extended copyright protection retroactively for 20 years, putting off new additions to the public domain until 2019. So all of us who care about copyright ought to be ready for a new copyright extension act coming in 2017 or 2018, to extend things even further. That will be the…

Changes to copyright law are probably more likely to pass Congress as part of international trade agreements these days, rather than as stand-alone bills.

How convenient that the copyright provisions in those agreements largely come from Hollywood...

Re: Fair Use Is Not an Exception to Copyright, It’s Essential to Copyright

#12

Post by jahewson » Thu, Jan 22, 2015, 4:52 PM UTC

6stringmerc wrote: post #9

unreal37 wrote: post #4

I support the EFF and the protection of fair use, but I don't think this article is well written enough to make a good case for it. It makes some coherent points near the end of the article, but the beginning is just a jumble of statements that introduce a fair amount of confusion. For instance: "New technologies and services depend on the creation of multiple copies as a matter of course. At the same time, copyright…

I agree; I was hoping for a more cogent explanation, but the whole time-shifting concept with respect to Fair Use is...weird? It's more of a "Terms of Service" type of issue, from my perspective, in that paying for the service should carry with it certain reasonable rights. It's not exactly a "transformative" notion from my perspective, but honestly, the courts have been so all over the map of reasoning that it takes…

Time-shifting is not a "Terms of Service" issue, because fair use is a right under copyright law and signing a license cannot take that away from you.

Also, I think you misread the article: Time-Shifting was never ruled to be transformative. It was ruled to be fair use by the Supreme Court because it is for private use and does not affect the market for the original work.

Re: Fair Use Is Not an Exception to Copyright, It’s Essential to Copyright

#13

Post by DannyBee » Thu, Jan 22, 2015, 4:57 PM UTC

graeme wrote: post #3

Does anyone know a good lawyer for fair use issues? I've got a project that I'm fairly certain falls on the fair use side of the line, but it's important enough that I'd like a lawyer's opinion.

As an IP lawyer, i can tell you that you will never get a definitive answer, and it's pretty sure all you will do is waste money.

Fair use is a mixed question of law and fact, and the fact issues will go to a jury (and in some cases, the judge will send it all to the jury). Without an actual trial, it's really hard to say what is fair use, unless what you are doing is something identical to say, an existing supreme court ruling :)

Re: Fair Use Is Not an Exception to Copyright, It’s Essential to Copyright

#14

Post by DannyBee » Thu, Jan 22, 2015, 4:58 PM UTC

jahewson wrote: post #10

graeme wrote: post #3

Does anyone know a good lawyer for fair use issues? I've got a project that I'm fairly certain falls on the fair use side of the line, but it's important enough that I'd like a lawyer's opinion.

Lawyers are very good at identifying threats, but they will never offer you much assurance about an issue as subjective as fair use. There's always some speculative danger they can see that's technically, though maybe not realistically, justified. What you can do is ask a lawyer if your idea is obviously not fair use and you'll get a straight answer. But you're not going to find someone who is going to say to you "ye…

"Laywers need to protect themselves when giving legal advice." Well, yes, but that's not the reason here, the reason is the other thing - we can't give a definitive answer because none exists.

Re: Fair Use Is Not an Exception to Copyright, It’s Essential to Copyright

#15

Post by api » Thu, Jan 22, 2015, 5:03 PM UTC

skywhopper wrote: post #2

The EFF brings up potential new copyright modifications to tighten down on fair use. It's important to remember that in 1998, the US Congress extended copyright protection retroactively for 20 years, putting off new additions to the public domain until 2019. So all of us who care about copyright ought to be ready for a new copyright extension act coming in 2017 or 2018, to extend things even further. That will be the…

Those extensions are known as the "Mickey Mouse protection act," since more or less their sole purpose is to ensure that Mickey never enters the public domain.

Re: Fair Use Is Not an Exception to Copyright, It’s Essential to Copyright

#16

Post by 6stringmerc » Thu, Jan 22, 2015, 5:18 PM UTC

jahewson wrote: post #12

6stringmerc wrote: post #9

Earlier quoted context omitted.

I agree; I was hoping for a more cogent explanation, but the whole time-shifting concept with respect to Fair Use is...weird? It's more of a "Terms of Service" type of issue, from my perspective, in that paying for the service should carry with it certain reasonable rights. It's not exactly a "transformative" notion from my perspective, but honestly, the courts have been so all over the map of reasoning that it takes…

Time-shifting is not a "Terms of Service" issue, because fair use is a right under copyright law and signing a license cannot take that away from you. Also, I think you misread the article: Time-Shifting was never ruled to be transformative. It was ruled to be fair use by the Supreme Court because it is for private use and does not affect the market for the original work.

Ah, indeed I conflated the "transformative" part from the book scanning, which makes them searchable. That's definitely a value-addition of the process, to me. Oh well, I'll leave the comment as it stands, flawed as it may be.

As far as signing a ToS / license, yeah you're right in principle, but I have no doubt that right will, as it was in this case, be under heavy legal artillery for the foreseeable future. Even the NFL hasn't bothered to change their tune with their "...is prohibited" disclaimer, which is fundamentally unenforceable. Maybe if that kind of dishonest truth stretching were an actionable offense, the stakes would be a little higher and cases more interesting.

Re: Fair Use Is Not an Exception to Copyright, It’s Essential to Copyright

#17

Post by 6stringmerc » Thu, Jan 22, 2015, 5:21 PM UTC

nitrogen wrote: post #11

snowwrestler wrote: post #6

Earlier quoted context omitted.

Changes to copyright law are probably more likely to pass Congress as part of international trade agreements these days, rather than as stand-alone bills.

How convenient that the copyright provisions in those agreements largely come from Hollywood...

...and guided through the Federal landscape by none other than former Senator Chris Dodd. If the MPAA can actually prosecute wholesale piracy in China/India/etc, I'll have to look outside and see if a flying pig might smack into my living room window. From my experience, they prefer to sue grandmothers, families and college students in the US, because fish in a barrel.

Re: Fair Use Is Not an Exception to Copyright, It’s Essential to Copyright

#18

Post by 6stringmerc » Thu, Jan 22, 2015, 5:30 PM UTC

DannyBee wrote: post #13

graeme wrote: post #3

Does anyone know a good lawyer for fair use issues? I've got a project that I'm fairly certain falls on the fair use side of the line, but it's important enough that I'd like a lawyer's opinion.

As an IP lawyer, i can tell you that you will never get a definitive answer, and it's pretty sure all you will do is waste money. Fair use is a mixed question of law and fact, and the fact issues will go to a jury (and in some cases, the judge will send it all to the jury). Without an actual trial, it's really hard to say what is fair use, unless what you are doing is something identical to say, an existing supreme c…

If you recall, GoldiBlox retained a big-time Silicon Valley IP firm when they filed suit against the Beastie Boys claiming Fair Use. When it became obvious the Beastie Boys 1) Were going to fight, and 2) The Beastie Boys were going to win, GoldiBlox fired them and hired different counsel. I would've preferred the case to go to court for some real, hardcore clarification. That would've done a lot of good for the legal, commercial, and artistic community.

Granted, I did really, really like how GoldiBlox had to wear a proverbial dunce cap by putting a statement on their website to the effect of "We were wrong, way wrong, shouldn't have done that, and don't make the same mistake we did." Pretty epic. Also, it does go to show that hiring a law firm to tell you what you want to hear is completely possible, though fiscally dangerous.

Re: Fair Use Is Not an Exception to Copyright, It’s Essential to Copyright

#19

Post by dominicmauro » Thu, Jan 22, 2015, 5:30 PM UTC

baldfat wrote: post #5

Former Academic System's Librarian here. "Fair Use" when I was a librarian meant absolutely nothing. Librarians were the biggest defenders of copyright and would scold and threaten anyone that they felt was on the borderline of fair use. REASON? The fair use clause is horribly written and is legally provides zero protection from libraries or schools from litigation as told to us by lawyers. So don't touch and don't g…

Why do you think the Fair Use section is so poorly written? I'm inclined to agree with you that it doesn't provide as much protection as some people might think, but I don't know about "zero" protection.

Re: Fair Use Is Not an Exception to Copyright, It’s Essential to Copyright

#20

Post by jahewson » Thu, Jan 22, 2015, 5:31 PM UTC

6stringmerc wrote: post #16

jahewson wrote: post #12

Earlier quoted context omitted.

Time-shifting is not a "Terms of Service" issue, because fair use is a right under copyright law and signing a license cannot take that away from you. Also, I think you misread the article: Time-Shifting was never ruled to be transformative. It was ruled to be fair use by the Supreme Court because it is for private use and does not affect the market for the original work.

Ah, indeed I conflated the "transformative" part from the book scanning, which makes them searchable. That's definitely a value-addition of the process, to me. Oh well, I'll leave the comment as it stands, flawed as it may be. As far as signing a ToS / license, yeah you're right in principle, but I have no doubt that right will, as it was in this case, be under heavy legal artillery for the foreseeable future. Even t…

Yes, misleading copyright notices are real a problem as they cause many people to think that they will violate the license by exercising their fair use rights. Fixing the language might help - but I'd like to see fair use more clearly defined, so that consumers can easily check if their activity is legal, regardless of the license.