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

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

#21

Post by baldfat »

6stringmerc wrote: post #7
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…

It's too bad librians couldn't muster the mettle to pull a DMCA type of user-based accountability. I'm serious about this, as Fair Use does have significant implications when performed in an institutional setting, but by the use of individuals, it becomes much more easy to circumnavigate. One of the greatest misconceptions is the extent to which Fair Use applies - showing an entire video? That's not Fair Use except p…

Radio is a public broadcast and people get sued for tuning in. Like the NFL Super Bowl party limitation and screen size of the past. These rules drive me nuts and should be reviewed in my opinion.

So your recommendation to all the street performers? If open mics are "stealing" from the artist then street performers are at a whole new level. We will have no art or performance in our society if we continue these down these roads of copy right and performance.

Only one's that can do anything reflecting to society will be satire and that is only because of the Supreme Court.

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

#22

Post by spacemanmatt »

api wrote: post #15
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.

...inasmuch as Mickey is a proxy for Disney's (some others, but mostly Disney's) mindshare which copyright protections are about to expire. I really wish the original copyright law stipulated that for a given work, controlling law is what's on the books at the time it was printed.

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

#23

Post by 6stringmerc »

baldfat wrote: post #21
6stringmerc wrote: post #7

Earlier quoted context omitted.

It's too bad librians couldn't muster the mettle to pull a DMCA type of user-based accountability. I'm serious about this, as Fair Use does have significant implications when performed in an institutional setting, but by the use of individuals, it becomes much more easy to circumnavigate. One of the greatest misconceptions is the extent to which Fair Use applies - showing an entire video? That's not Fair Use except p…

Radio is a public broadcast and people get sued for tuning in. Like the NFL Super Bowl party limitation and screen size of the past. These rules drive me nuts and should be reviewed in my opinion. So your recommendation to all the street performers? If open mics are "stealing" from the artist then street performers are at a whole new level. We will have no art or performance in our society if we continue these down t…

IIRC Satire isn't legally protected, just Parody. There's a distinct difference. I think Hustler was a Parody ruling.

What you're failing to recognize is that the coffee shop owners are, for lack of a better term, profiting from the music being played in their establishment. In a more direct case I can speak to, I frequently purchase beer from the places where I've played open mics. They directly profit from hosting the event, and feel that they should be exempt from paying the compositing artist association dues...why?

Now, for street performers, they are providing a service akin to radio, insofar that they are publicising a song, not charging a cover, and further advancing the arts and society's respect for them (putting aside the quality of the performer). That's why my local city has ordinances actively supporting busking - provided no solicitation for compensation is put forward - because it makes life better. In turn, performers are allowed to have a tip jar or accept compensation as they are benefitting society and the arts through the "practice and performance of their craft" as the ordinance describes it.

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

#24

Post by spacemanmatt »

baldfat wrote: post #21
6stringmerc wrote: post #7

Earlier quoted context omitted.

It's too bad librians couldn't muster the mettle to pull a DMCA type of user-based accountability. I'm serious about this, as Fair Use does have significant implications when performed in an institutional setting, but by the use of individuals, it becomes much more easy to circumnavigate. One of the greatest misconceptions is the extent to which Fair Use applies - showing an entire video? That's not Fair Use except p…

Radio is a public broadcast and people get sued for tuning in. Like the NFL Super Bowl party limitation and screen size of the past. These rules drive me nuts and should be reviewed in my opinion. So your recommendation to all the street performers? If open mics are "stealing" from the artist then street performers are at a whole new level. We will have no art or performance in our society if we continue these down t…

As I see it, part of the problem comes from the attitude taken about enforcement when laws are written compared to actual enforcement a decade later. I've had it with statements like, "this is meant for corporations" or "on one would try to enforce this against a private citizen because there's no money in that" because those laws always end up turned against mom & pop operations. Patent and copyright trolls have put the lie to such claims.

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

#25

Post by [deleted] »

baldfat wrote: post #21
6stringmerc wrote: post #7

Earlier quoted context omitted.

It's too bad librians couldn't muster the mettle to pull a DMCA type of user-based accountability. I'm serious about this, as Fair Use does have significant implications when performed in an institutional setting, but by the use of individuals, it becomes much more easy to circumnavigate. One of the greatest misconceptions is the extent to which Fair Use applies - showing an entire video? That's not Fair Use except p…

Radio is a public broadcast and people get sued for tuning in. Like the NFL Super Bowl party limitation and screen size of the past. These rules drive me nuts and should be reviewed in my opinion. So your recommendation to all the street performers? If open mics are "stealing" from the artist then street performers are at a whole new level. We will have no art or performance in our society if we continue these down t…

[deleted]

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

#26

Post by spacemanmatt »

6stringmerc wrote: post #23
baldfat wrote: post #21

Earlier quoted context omitted.

Radio is a public broadcast and people get sued for tuning in. Like the NFL Super Bowl party limitation and screen size of the past. These rules drive me nuts and should be reviewed in my opinion. So your recommendation to all the street performers? If open mics are "stealing" from the artist then street performers are at a whole new level. We will have no art or performance in our society if we continue these down t…

IIRC Satire isn't legally protected, just Parody. There's a distinct difference. I think Hustler was a Parody ruling. What you're failing to recognize is that the coffee shop owners are, for lack of a better term, profiting from the music being played in their establishment. In a more direct case I can speak to, I frequently purchase beer from the places where I've played open mics. They directly profit from hosting…

Satire is a defense to defamation, which was what Falwell sued over, and Edward Norton, playing Larry Flint's attorney, did such a swell job of depicting in the movie, People vs. Larry Flint.

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

#27

Post by spacemanmatt »

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…

This this this.

There are two questions you have to ask. One goes to the attorney's opinion of actual legality/defensibility. The other goes to likelihood that it will attract legal action. It's a business calculus.

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

#28

Post by kemitchell »

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…

There isn't much assurance to offer. The vagueness of fair use often benefits copyright plaintiffs, due to procedures that are as much or more a part of copyright law as the big ideas behind doctrines like fair use.

From Wikipedia:

  The Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc. This means that in litigation on copyright infringement, the defendant bears the burden of raising and proving that the use was fair and not an infringement.
In other words, fair use is not "an exception" to copyright violation, but a legal process you can try to perform when you've been sued for copyright violation and concede that you copied (&c.) someone's work. If you've wound up in court, or even gone back and forth on a cease and desist letter, you have already drowned in inconvenience, cost, and lawyer time. You might be "right," but you've still been screwed by the copyright holder, who may be on the war path to make a point with a legal budget greater than your net worth.

Remember: lawyers are responsible for practical advice, not intellectual, political, or ideological purity. They will be very sensitive to attempts to treat them as "lawyer-approved" stamp dispensers, and will assume an appropriately skeptical defensive stance. You may think the "substance" of fair use is more important than practicality and procedure, but a good lawyer will anticipate present risks and won't bother reading up on case law on your dime when, as a practical matter, that research and those arguments will never help you. A lawyer that gives you the bad advice you need to feel vindicated now might face reputation damage and potential malpractice liability later when bills mount and you suddenly wonder why your lawyer wasn't watching out for you. Yes indeed, it can be a lot more fun to go it alone on Google, following only links and leads that seem reassuring, a dog-eared Lessig book beside you and a Doctorow talk in the background to keep you warm.

You probably saw this coming: I'm not your lawyer, and this isn't legal advice meant for you or anyone else. If you have a legal problem, find a trustworthy lawyer. They'll ask questions to understand the specifics of your situation, which will affect what advice they give in ways you might not expect.

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

#29

Post by 6stringmerc »

spacemanmatt wrote: post #26
6stringmerc wrote: post #23

Earlier quoted context omitted.

IIRC Satire isn't legally protected, just Parody. There's a distinct difference. I think Hustler was a Parody ruling. What you're failing to recognize is that the coffee shop owners are, for lack of a better term, profiting from the music being played in their establishment. In a more direct case I can speak to, I frequently purchase beer from the places where I've played open mics. They directly profit from hosting…

Satire is a defense to defamation, which was what Falwell sued over, and Edward Norton, playing Larry Flint's attorney, did such a swell job of depicting in the movie, People vs. Larry Flint.

Ah! Nice to have that input. I'm with you in spirit, for sure. That stated, I think we are both on-track with some of the difficulties relating to Speech vs. Fair Use. Freedom of Speech seems to be the tenent by which Flint won against the Defamation charge. However, in Fair Use, where Parody has very clear protections, it seems Satire is not as supported as grounds for Fair Use. The Wikipedia citation regarding Campbell notes that Satire may be protected, but yet again, we run into erratic outcomes on the subject. Phew!!

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

#30

Post by cwkoss »

baldfat wrote: post #21
6stringmerc wrote: post #7

Earlier quoted context omitted.

It's too bad librians couldn't muster the mettle to pull a DMCA type of user-based accountability. I'm serious about this, as Fair Use does have significant implications when performed in an institutional setting, but by the use of individuals, it becomes much more easy to circumnavigate. One of the greatest misconceptions is the extent to which Fair Use applies - showing an entire video? That's not Fair Use except p…

Radio is a public broadcast and people get sued for tuning in. Like the NFL Super Bowl party limitation and screen size of the past. These rules drive me nuts and should be reviewed in my opinion. So your recommendation to all the street performers? If open mics are "stealing" from the artist then street performers are at a whole new level. We will have no art or performance in our society if we continue these down t…

Someone should make a parody radio broadcast of the NFL:

"And, fatty at the 1 yard line taken down by bad-teeth"

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