Possible BehindMLM downtime (Faith Sloan bogus DMCA)
We’ve received a bogus DMCA takedown notice from Faith Sloan. She’s obviously not happy about our reporting of her SEC Ponzi case, misrepresenting her financial situation to US regulators and her involvement in subsequent questionable schemes.
Naturally intending to file a counter-notification (not the first bogus DMCA we’ve dealt with), as Sloan’s clearly failed to take into account fair use as required by law.
Should be straight-forward enough to sort out but access to the site might be restricted a few days while our hosts do their thing.
Copy of the bogus DMCA complaint below for reference:
If it’s sorted without any downtime I’ll remove this message, otherwise you know what’s going on should access to the site be temporarily restricted.
A refresher for those who think filing bogus DMCA notices will work, filing a DMCA notice under false pretenses leaves you open to both civil and criminal liability.
Wow… that ugly lady must be really P-I-S-S-E-D off. Can’t you do anything about the horrible things she published on her FB wall mentioning you?
And here I was thinking I knew low life people…
Those photos are from Facebook, aren’t they?
If they are visible to the public, then hit them back with “false claim via DMCA”. One entity had to pay $125000 to settle false claims via DMCA.
NOLINK://www.onlinepolicy.org/action/legpolicy/opg_v_diebold/
http://www.copyright.gov/legislation/dmca.pdf
the pictures sloan is talking about were available on the net weren’t they ? that should fall under ‘fair use’ by common sense.
fightback oz, dontcha worry ! be advised legally !
@Diego
I suppose I could send an email to her hosting provider (GVO). Providers usually have T&C about this sort of stuff.
This week was crazy busy with the content and what not (don’t think I’ve replied to emails all week). If I’ve got time on the weekend I’ll sit down and look into it.
“Oz” is a pseudonym so I’m typically not fussed when people start making up stuff using the name. People don’t come to BehindMLM because “Oz” runs it, they come here for the content. It’s always been about the content.
Besides, the only people who aren’t going to see Sloan’s rants for what they are (lashing out by someone who’s facing the end of her scamming days), are the crowd she hangs out with. Anyone else would look at it and wonder what the source is.
There is none, because it’s all made up.
A few of them.
Have to be realistic about legal action, Sloan’s had most if not all of her assets frozen. All that’s left is her hidey-hole funds tied in BitCoin and whatever else she has squirreled away offshore she hasn’t declared.
I really don’t think it’s worth my time.
Yeah obviously fair use both in nature and how the images in question have been used. Sloan’s angry though and there’s nothing stopping her filing bogus claims.
At this point she probably doesn’t care about the repercussions. She’s quite obviously gone off the deep end and taken this all personally.
Won’t blame herself for her scamming ways. Can’t blame the SEC… who’s next down the line?
If you can view the photos then she has no case. So take screenshots and archive them. Print them out (with date stamp)
AND check Wayback machine if there’s any archived pages.
If your ISP balks, you just need to disable those specific URLs. or blur out the pictures.
Last time someone tried that bogus “copyright” claims against me… Well, you all knew what happened to Zeek 2 weeks after they tried that. 😀
Also, check if Sloan lives in a state that has anti-SLAPP legislation. (It’s a term that refers to filing bogus copyright DMCA takedowns just to intimidate / silence criticism)
The best strategy is usually “Relax, check the facts, make a decision”. “React, feel offended, plan a counter attack” is usually not a good strategy.
The facts in the case seems to be the articles and the photos. The legal issue is about whether they’re private property or in public domain, available to anyone.
People can probably still demand something to be removed if it’s no longer publicly available. They can share photos, but they can also stop sharing them.
Copy right = you can link to a photo, clearly stating the source, but you can’t copy it or download it, presenting it as your own property. It will probably also cover “unauthorized use”.
“Fair use”. I have no idea about the rules for that, but they should normally reflect what people in general will consider to be fair.
Oz must first check his own material for those points. “Is it really fair use, are those photos copyrighted (private property)?”. Always check your own defense strategy before you plan an offensive strategy.
I’m pretty sure you will find a type of copyright infringement here, as it has been described in the complaint.
The next step is to make a general decision, “fight or negotiate?”. Make sure to analyse both, not only your own favorite solution. Both alternatives can offer valuable training and experience.
Wow, “Oz” is a made up name? And here I just got an Oz tattoo. OOPS!
Sounds like the “PONZI Princess” knows her days are enumerated. As they should be. Keep up the good work, Oz!!
regarding sloan’s objection to the oliver twist ‘artistry’ 🙂
—–http://en.wikipedia.org/wiki/Fair_use
Wait a minute, are you telling me you really aren’t a snarling panda? Man this is going to be some hard ink to cover.
The strange thing is that back in the day, one thing I gave Faith almost grudging respect for was that she didn’t really care what people were saying about her. She’s been pimping schemes for more than a decade and was more or less “professional” about it.
She knew that the sort of people who would spend any time researching her or the “opportunities” she promotes were not the sort of people she could make money off of so why bother wasting her time dealing with them? No, she wisely ignored her detractors and focused her attention on the sort of people with (for that moment at least) more dollars than sense.
But times have changed and she’s facing disgorgement of her ill gotten gains. And it looks like she is finding it a lot harder to ignore the people who know her for what she is.
Nobody thinks my avatar actually resembles me, right? 😀
Dude I thought it was a photo…
My whole take on life has been shattered now.
Hahahah!!! Faith Sloan is the best!
I really and really belive she (and her lawer) DON’T KNOW about the Streisand effect!!!
We talked a lot after I give her my “present” for that stupid site. So… Let’s make again! By the way, I can do it with more “love”! What are the ponzi sites that she is “working” now?
By the way, the facebook disable my lame page. Yeah.. That was bullying. Sorry Sloan. I just love you.
Let’s make the Faith Sloan day! Anyone that want one free DMCA, please, publish their photo!
I challenge everyone to make good photoshopped with her!
so hold the phone… you mean to tell me, that OZ is NOT a chiclet with stick arms and legs?
and i stopped eating chiclets on the account of not wanting to eat OZ’s relatives FOR NOTHING?
I’m a bar of soap through and through.
What the hell is a chiclet???
GUM
Ahh fair enough then. I see the likeness ;).
Definitely soap though. I think I’d notice being chewed on and spat out.
magnificent !
this may, however, raise concerns for andrew. he may stop using soap out of sheer respect for your relatives.
beware, he may raise a STINK about this .
Do you mean it isn’t??
Hey OZ the zumbis are accusing you for being a phedophile is this true and what you have to say about this?
Why do you listen to people who name ice cream after outlawed ponzi schemes?
She’s only objecting to the photos. While you are arguing fair use in counter-claim, you could always remove the images and just leave links. That way there’s nothing for your hosting provider to do.
Wikipedia has a lot of good templates on fighting DCMA on fair use grounds since they get a lot of those complaints. A little Google’ing around you’ll find them.
The likelihood that any of those photographs are copyrighted is negligible.
If people could take the website down (even temporarily) every time you use a picture that is legal do you think all the MLM companies are going to band together and do just that? To block all access of true news about these things from public eyes?
I mean… you are the only one I know of that speaks the truth about these life-wasting opportunities in detail… Unless K. Chang has a blog. It seems he’s always got your back.
I link to my blog in every comment, man. 🙂 Try clicking on my name. 😀
They’ve tried. My article about ZeekRewards was knocked offline for two weeks in 2012. Ten days later they are closed by the SEC. You can search coverage of that here.
Recently WorldVentures went after another blogger for her negative review from a year ago. There have been many others.
I dont listen to those zumbis i just ask because is a serious accusation and i want to hear from OZ.
if were me i will sued sloan to her a$$, OZ does a great job with all mlm reviews and if he makes money with google clicks and Ads is because he deserves and hardwork pays off.
But phedophile is a very serious accusation and needs to be clear out.
You have probably misunderstood the copyright issue here, e.g. you have probably googled some (C)Copyright rules. The complaint isn’t about that type of copyright, so you must look at more relevant rules.
You don’t need to (C)Copyright protect something that already is copyright protected by the law. The (C)Copyright protection is an additional protection, e.g. you can (C)Copyright something that normally isn’t copyright protected by any laws.
I recommended the same, indirectly. He’s using privately owned material in his own articles, in a way not protected by general “Fair use” rules.
He must respond to the content of the complaint = the same source the service provider will need to respond to. He can’t just respond to his own ideas about “bogus complaint”, “fair use” or whatever other ideas he might have.
It’s indirectly about “integrity”, i.e. you can’t criticize OTHERS for bending the rules if you’re bending rules yourself.
One of those photos have already been removed, the photo in “Faith Sloan unable to support herself financially?” (or “Faith Sloans motion for 15,800 to pay lawyer rent denied”).
The photos in “RE247365 Faith Sloan a case study” are links to external sources, clearly marked by a footnote.
That article itself may be questionable in its use of unidentified sources. The photos used there are relatively irrelevant, but the screenshots are relevant.
What’s wrong with this statement?
The only defense scamming criminals have, as it were, would be to project imaginary criminal offenses on those who call them out.
Blog: Reports about Ponzi schemes…
Scammer: ur a pedophile!
It’s rather tragic, but not unexpected. Sloan’s BS isn’t the first time mud has been slung at me. Won’t be the last either.
What’s amusing is the true personality that comes out. Behind the gushing smiles as the reaches for your wallet and religious front she puts out publicly.
It takes a certain type of character to run around accusing people of such things. One that isn’t too pretty.
@Concerned
Not likely, they can be sued into oblivion for filing bogus DMCA requests.
Sloan is a bit unique what with the SEC having frozen her known assets.
I’ll have a clearer picture next week (stupid timezones). Still likely to go ahead with a counter-notification.
@M_Norway
Going to have to disagree here. Go read up on Fair Use.
Fair Use is one of the reasons one can cite in a DMCA counter-notification upon claiming the allegedly infringing material has been misidentified.
That shouldn’t be necessary (for ME to read up on “Fair Use”). It’s enough if YOU have identified it clearly, and have pointed it out in a reply to the service provider.
One photo have already been removed, the one you had downloaded and uploaded in an article. The link points to a non-existent photo in your /upload/ directory.
Most other photos seems to be links to external sources, to something that openly can be found somewhere on the internet. It may still be a violation of the copyright rules, i.e. it may be unauthorized copies of something that is privately owned.
What I’ve removed wasn’t in direct response to the DMCA notice, it’s to satisfy my host (until I actually file a counter-notification).
They have to cover their ass and it’s either I (temporarily) block access to the images in question or they suspend the whole site in the interim.
Fair use explicitly covers this.
An argument like that doesn’t make much sense. It points to some unidentified ideas you have about “Fair Use”, rather than to the legal issue stated in the complaint. You must identify the correct rules yourself, you can’t ask OTHERS to do it.
It will be almost impossible for me to identify which rules you have looked at, e.g. to see if you have interpreted some rules in context or out of context.
The legal issue is about unauthorized use of protected material, either directly or indirectly (through another source).
You can’t cherry pick rules, i.e. you can’t solely look at those rules in favor of your own opinions. You must look at the main issue before you can look at those detailed rules. “Fair Use” have a lot of contradicting rules, so it simply isn’t enough to find rules in support of something.
You actually believe she hired a photographer to take lousy pictures of her, her business associates and family and that some random snapshots taken of her with an I phone are intellectual property? Good luck making that stick.
If she can prove she registered those items then I’d believe her, and not before.
Otherwise read up on fair use as Oz suggests.
@M_Norway
I’m starting to feel like Hoss.
Go read up on Fair Use. These aren’t “my ideas”.
@Hoss
Even “registered” items can be used under fair use. The context of how the material is used is weighed against the four-prongs of the clause.
BehindMLM by nature is covered. It’s just a matter of whether one can be bothered asserting that right.
That’s why I pointed out “copyright vs. (C)Copyright”. You don’t need to register work as (C)Copyright if it’s already protected by laws (and photos typically ARE protected by laws).
You don’t need to ask for permission for every types of use. Some types of uses will be covered by “Fair Use” rules, some types will not be covered by “Fair Use”.
You are pointing to (C)Copyright rules, but they were not even mentioned in the complaint. Some “Private Property” rules were indirectly mentioned. It doesn’t make much sense if people are responding to their own ideas about something if they fail to identify it correctly.
“If she can prove she has registered those items” is an argument that simply doesn’t make any sense. It only proves that you have misinterpreted something, i.e. you’re addressing your own ideas rather than the realities in the complaint. The complaint didn’t mention anything about “registered (C)Copyright”, but you immediately picked up that specific idea.
Anything copyrighted is potentially covered under Fair Use, it’s the context in which said content is used that matters.
Using people’s Facebook photos to put on the box of a new line of hamburgers, for example, probably isn’t going to hold up a fair use defense in court.
By law the filer of a DMCA notice is required to assess the plausibility of fair use before the notice is filed. Sloan obviously just skipped that step.
That leaves her liable, but again with the SEC having already seized her known assets – not much point.
That argument was supported by “It will be impossible for me to identify exactly which rules you have looked at, e.g. to see if you have interpreted rules in context or out of context, or if you have cherry picked rules to support your own opinions”.
I can both find rules supporting your opinion and rules contradicting it.
The legal issue here is about “Are photos covered by some Intellectual Property Rights?”, and then it’s about some exceptions to those rights = some Fair Uses of protected material.
“Fair Use” can be about using PORTIONS of material, e.g. quoting some relevant parts of an article. It can be about using existing material to create some NEW material. It can also be about the PURPOSE, e.g. “public information” can clearly be about Fair Use.
Your argument didn’t point to any exact interpretation of the rules. You asked ME to read up on Fair Use rather than identifying the rules you had applied. That method simply won’t make any sense, you can’t expect others to identify exactly which rules you have looked at if you don’t identify them yourself.
The correct response should have been “I have checked …”, pointing to some exact rules and sources, and potentially to how you have interpreted those sources.
Wrong. The legal issue is whether or not the use of copyrighted photos covered under Fair Use. That the images in question are copyrighted is not in question, nor is it being contested.
Yeah because if you had of, we wouldn’t be having this conversation. Save us both some time.
Fair Use has four prongs, BehindMLM (and any other “news” blog) satisfies them. This isn’t new legal ground.
Point to those rules? It will be impossible to identify those rules if you can’t identify them yourself.
If you don’t recognize how irrational that argument is, then you have probably focused too much on your own ideas. The ones referring to some rules are normally the ones responsible of identifying those rules clearly. The opposite idea won’t make any sense.
I can identify some of those photos as “faximiles” = screenshots of a Facebook account or similar sources. Faximiles are graphical representations of something, and they don’t pretend to be originals. They’re normally covered by “Fair Use” rules, but that may depend on the type of content.
Check the footer of every page of this blog.
Like I said, these aren’t my ideas.
Fair Use applies to any copyrighted work. Whether the defense holds up depends on the context the work was used under.
sloan’s accusations fall under the head of ‘internet libel’:
fighting internet libel can be tedious , with problems of jurisdiction and laws that vary form place to place .it is difficult to fight and win cases and probably very expensive too .
sloan , while pretending offence has used ‘copyright infringement’ since it is easy to trot out DMCA notices, and the service provider , who is neutral, gets dragged into the mess and has to protect his backside.
at the same time she is freely indulging in libel ,knowing that libel has to be settled through court actions. she probably has a lawyer whispering in her ear .
One can’t be bothered to respond to all sorts of random accusations throw by people who disagree (about something else).
If they were accusing, they should be providing the evidence. And they probably have some random guy they claim is Oz.
A couple years back I’m surprised to find my name mentioned in scam.com. Some guy claimed to have lost 50K to me in some sort of nebulous business deal, then put up some random Asian guy’s picture (in Los Angeles) and claimed that’s me. (I live in San Francisco). They don’t even have my full legal name. 😀
The only people who’d do that to me back then had to be TVI Express members as I had been chasing that scam since 2009.
LOL
@ M_Norway … as Oz stated in the article
It doesn’t appear that Oz wishes to dance with you the way Hoss seems to enjoy doing.
The bottom line is that Oz has dealt with this type of crap before and feels he understands the guidelines that cover his arse.
As far as identifying specific rules that apply in this situation, he is not “responsible” to you, me, or anyone here to do that. He may need to identify them for his host if necessary, but that’s it.
We’ll know soon enough whether his understanding of fair use based on his previous experience is correct, won’t we?
Sorry, it was “RipoffReport”, not scam.com
Right. Even if the material is covered by copyright its useable under fair use.
Sloan had to assert the material is covered by copyright to substantiate her request under DMCA. Is the material actually covered by copyright? Who knows? I doubt it, but it doesn’t matter due to fair use doctrine.
But he didn’t manage to communicate it properly. His defense arguments were generally vague and difficult to identify.
He must see the complaint as the service provider will see it, not as he sees it himself. It’s the service provider that will have to make some decisions about it.
The complaint is primarily about the ownership to those photos (but some are “faximiles”). Faith Sloan has probably documented the ownership to the original photos properly, i.e. she has probably used a legal advisor for the complaint.
The other key issue will be about Oz’ use of those photos (assuming the ownership has been correctly identified). Some Fair Use rules can probably be applied, but others may miss the target.
It’s much cheaper to TEST defense arguments before actually using them, to have someone pointing out vague parts or misinterpretations. That way you can improve the defense arguments before actually using them, and you can also be able to remove or replace flawed arguments.
The current legal issue is new, i.e. previous experiences may completely miss the target.
it does not matter if sloan has full legal ownership to the photos. if she does , good for her.
the fair use provision is specifically enacted to address copyright controls , otherwise no information can flow ,because any material will be the copyright of someone or the other.
the issue at hand is only whether the ‘use’ of sloans copyrighted photos falls within ‘fair use’ provisions.
the issue also is whether sloan has sufficiently checked for violations of fair use , BEFORE asking oz’s service provider to remove the ‘infringing’ material . if she has not checked this thoroughly, oz can sue her for attacking his freedom of speech rights.
Wrong.
They accept the counter-notification and forward to the other party. After 10 days unless a lawsuit has been filed, they then restore access to the material (or in this case, I will).
The service-provider is a neutral party who only facilitate communication between two parties.
Not really –
The process is set up in a manner in which the provider is responsible to listen to the complaint from the initial party, and communicate that complaint to the respondent. The respondent then has the opportunity to make his case to the provider, who then makes a determination based on the facts as they see it.
The process is set up to put the liability on both the provider and the content creator in the event the creator and hosting provider willingly are involved in a violation. A layperson can unknowingly create infringing content, and the provider can’t reasonably check all content being created on the fly.
Oz only NEEDS to present his argument in a response to his provider if he feels his use is not a violation of DMCA or his Terms of Service (which are likely to include DMCA violations). Many content creators will make minor corrections to their content once they are made aware of the infringement by their provider, problem solved.
Others will have to plead their case to their provider, and the providers make the ultimate determination if they wish to proceed with a TOS violation or to stand behind their customers rights to the content they have created or are using.
If the provider determines their customer is in the right, it is up to the complainant to pursue additional civil action through a restraining order barring the content until the case can be heard. At that time the civil liability falls upon both the provider for allowing the infringement to continue and the respondent for creating the content in violation of law.
I will concede the provider will need to make a decision.
Footnote: I provide hosting on some of my servers, and my explanation is based on previous complaints I have received on behalf of clients and advice of representation I retained during my first few encounters with DMCA complaints.
That was my message too, but I didn’t describe all the details. I described the general idea rather than the whole process.
I got it. Sorry you didn’t.
I must have missed the part where Oz was seeking our feedback on fighting the DMCA.
It appears that he is quite comfortable relying on his previous experience handling these situations versus testing his arguments with generally anonymous blog commenters who have no provable knowledge or experience in dealing with the issue.
I’m starting to feel like Hoss, too. M_Norway, we all go back many years but Hoss and Oz are right on here.
I’m not going to blockquote and respond, because the philosophical chatter seems to be going down a death spiral. Google “fair use,” listen to Hoss, end of story.
Looks like Faith removed all the nasty posts from her FB page. They were there yesterday but gone when I went back earlier today to see if continued her diatribe against Oz.
Best solution to this case is just put her in prison .. maybe she can launch her own scheme in there… autoship of ramen noodles and she will be at the top of it all
No, she hasn’t.
OK – I see the older ones are still there but she had at least one on there from the last day or so ago that talked about Oz’ other blogs and something about penis references. That is gone.
It is all there. It is later in the post she is thanking people for getting a Facebook page removed.
She did finally get the country right. She was saying Oz is living in Thailand not Taiwan in many of her posts.
The post I am talking about is not there unless you all can see it and I can’t. It had Oz’s real name (at least I’m guessing it was his real name)
Ok I think we’re back in action. Will update on the DMCA either on the weekend or early next week.
Oz, glad to see you back. I hope Faith Sloan rots in jail……
Glad to see the site back Oz.
Hopefully you can share how things played out.
Looks good from here, nothing seems to be missing and some new posts are already showing
Yes! Really glad to see you back!!!
I am very glad you made it back. It is just not the same without your fine work.
that was a quick comeback ! congratulations.
Yippee!!! I was going through withdrawals.
Keep up the good fight!
Welcome back Oz
I’m glad you’re back to continue the fight against MLM misinformation and scamming. No matter how many times they try to bring you down, I hope that you keep telling the truth.
You’re the man, Oz. Keep on keeping the faith…
Good job, man…
You mean Oz isn’t really Throckmorton Osgood living in a Tudor mansion in Stockton on Tees, BUT is an Aussie living in Thailand? Seriously? LOLOLOL!
Welcome back Oz and it is great to have the site back as well.
Thanks for the support fellas.
Looking forward to the weekend closing a trying week!
Glad to see the site back Oz. Yay (:
I really like to see news MLM’s Ponzi help me dont join to…
Welcome back, OZ.
I apologize that I don’t have a better choice than living with a system that accommodates these serial scammers to the extent that it does. The desperate acts of the roaches once the light goes on is testimonial to your effectiveness as an exterminator
SD
This link have some potential important information about photography v. Fair Use:
http://www.publicdomainsherpa.com/rights-of-publicity-and-privacy.html
State Law rather than Federal Law. If people are looking at copyright laws to find a proper defense argument, they may be looking at the wrong law.
The website contains a lot more information, I only copied a few paragraphs. Here’s the bottom line:
Note: The focus shouldn’t be on “commercially”, i.e. whether something is published for commercial purposes. “you would still run a risk if you held the depicted person up to ridicule or presented that person in a libelous manner”.
Not when it comes to the Digital Millenium Copyright Act.
That law can be used for an initial takedown notice, directed towards the ISP/OSP. It offer a safe harbour for the ISP/OSP if they take down the material “promptly” (24-48 hours, in some cases 72 hours).
The next step is a counter notification from you. It will allow the ISP/OSP to put it up again, to avoid lawsuits from you (another safe harbour).
After that, the copyright owner can bring it to court, to get an injunction. In case the website owner is unknown, the copyright owner can get an Ex Parte (without warning you as a party) decision from the court.
It’s rather complicated. I used Norwegian copyright laws to identify some of it, but they’re based on the same WIPO treaty as the DMCA. I found exactly the same procedure for internet takedowns in Norwegian copyright laws.
Welcome back Oz! I appreciate your work and the behindmlm site. Thanks.
Thank you for not throwing in the towel Oz. Great to have you back.
They can take Oliver Twist out of the site, but they can’t take it out of my head (I couldn’t stop laughing the first time I saw that)
There’s nothing stopping someone filing a lawsuit without a DMCA notice.
DMCA notices are one-sided, inexpensive and convenient (download template and send) – that’s the only reason they are used.
Google receives and processes on average a million a day. It’s all a bit ridiculous really.
Here’s how the rules about internet takedowns are organized in the Norwegian copyright law.
Unlike DMCA, the Norwegian copyright law has also identified photos inside the same law as other copyrights, but separated from those others. The commercial value for most photos are usually relatively low, but the emotional value may be high.
§1 identifies the most typical copyrights, but it also points to §43a to separate “scientific, litterary and artworks” from ordinary photos, e.g. portrait photos.
Photos are mentioned in the following sections:
I don’t think it’s a good idea to mix in too much details from the Norwegian copyright law. The law system is too different.
* Civil Law v. Common Law = the Norwegian copyright law is much more specific than DMCA, e.g. it specifically lists some types of fair uses and areas not covered by the law.
* State Law v. Federal Law. Norway doesn’t have separate State Laws. It doesn’t have the same type of Tort Laws either.
There’s one thing = an unknown defendant.
DMCA takedowns can be used to identify the counter party through the ISP or OSP, or to get a court order directed against the ISP/OSP using the Ex Parte alternative (when the website owner is unknown, but the service provider isn’t).
As I said before, look into existence of Anti-SLAPP legislation. They are specifically written to combat bogus copyright claims and such intimidation tactics.
Sloan, being an Illinois resident, is subject to the Illinois anti-SLAPP statute, known as the Citizen Participation Act ( CPA)
What TPH said way far above about the Streisand effect is very valid. The more fuss you make about trying to hide or remove something online, the more traffic you’re going to drive to it out of sheer curiosity.
The more Faith tries to get those pages taken down, the more attention she’s going to draw toward them.
Some people never learn.
Digital Media Law Project (dmlp.org) may have some legal info. I didn’t find exactly what I was looking for, but I found some general info about legal risks when running a blog.
Some examples:
NOLINK://www.dmlp.org/legal-guide/publishing-personal-and-private-information
NOLINK://www.dmlp.org/legal-guide/risks-associated-publication
It also had some general advices for how to handle legal threats.
About that blog:
“Lawyers AND bloggers” mean they probably can be interested in some information, and they potentially have some information to offer.
The blog is organized as a searchable database (I believe), e.g. law related articles organized State / topic and similar methods to sort the articles. Sort methods like that can make it a little difficult to understand where to find something.
——
One article of interest for me, but of less interest for others:
NOLINK://www.dmlp.org/blog/2012/reconsideration-illinois-judge-holds-blog-protected-shield-law
I will use it as an example later. The Judge there first denied a blogger similar source protection as other news media, because “she didn’t act like a reporter”.
Who has the copyright? If I whip out my I-phone and take a picture of Faith Sloan in the company of other people do I have the copyright to the photo or does she?
What copyrights do the other people in the photo have?
if you whip out your phone and take a picture of anyone,without permission, it MAY result in one tight slap 🙂
Could be, but who has the copyright to the picture.
in the US , taking photos of people in public places is legal , and falls under ‘expectation of privacy’ rules.
the bottom line is : if you chance upon sloan , and whip out your phone , and photograph her , the copyright is yours , if you get out alive.
I believe that was mentioned in the article I linked to in post #80. The photographer normally has the copyright to that photo, but some photos may be illegal in themselves and cannot be copyrighted.
Copyright is normally about “work of art”, “litterature”, “science”, and it was initially about the commercial value.
If Faith Sloan took selfies of herself while committing illegal acts, i.e., promoting illegal securities, and then used the photos in furtherance of other equally illegal promotions, would the photos be “works of art” or would they be “illegal in themselves” and uncopyrightable?
That article was about a court decision about an “anonymous tipster” to a blog, where the blog owner referred to a law allowing newspapers to shield their sources (not having to reveal their sources to the opponent).
The Judge first ruled against the right to shield the “anonymous tipster”, based on that the blog / article / “anonymous tipster” didn’t meet the definition for news:
He later reversed that decision, but if I cite that part I will have cited the whole “heart of the article”. It isn’t necessary for my post either to cite more details, since this post isn’t about those details.
DEFENSE ARGUMENTS MAY FAIL …
Defense arguments may fail because there’s too little information supporting them / too much contradicting them.
* The blog didn’t look like a news medium
* the owner didn’t act like a news reporter
* the anonymous source probably was “questionable” in the eyes of a judge
The judge used definitions in Merriam-Webster’s and Dictionary.com to check how they defined “News” = “report of recent events”, from sources he could accept as “reliable” (he obviously didn’t accept the blog owner’s claim).
In another case cited there, the decision was based solely on the blog owner’s behavior, “she didn’t act like a reporter”.
The clarified decision:
FAITH SLOAN’S TAKEDOWN ATTEMPT
I would probably have gone for a “In pari Delicto” defense if the case ever ends up in a court (with her as a plaintiff). It’s much easier to “sell” that argument to a judge or to an opposing attorney than the “Fair Use” argument, it will be much closer to the truth than “Fair Use”.
All the “Fair Use” examples in the Norwegian copyright law were truly about fair use, e.g. they mentioned compensation to the copyright owner where that would be fair and didn’t mention it in other examples. News organizations typically were expected to pay compensation in some cases.
Grabbing privately owned photos from the internet reflects quite different ideas than fair use. It reflects misuse rather than correct use of a legal doctrine.
The “Fair Use” argument will most likely fail. It’s a defense rather than a right, and the defense is based on truly fair use rather than on misuse. An attorney can easily defeat that argument by asking questions about how much you have paid in compensation to other copyright owners, showing that you regularly violate fair use.
“In pari delicto” means you don’t need to defend your own use against tough questions from an attorney, because you have already admitted the main part of your opponent’s argument. You can rather focus on your opponent, pointing out that your opponent is not an innocent victim, and none of you deserve to profit from your own wrongdoing (at least not through a court).
WMI v. Jay Kubassek et. al
Kevin Thompson used a similar logic in that case, by pointing out that WMI operated a pyramid scheme. He didn’t use “in pari delicto” directly, but he stated the realities supporting that defense.
SUMMARY FOR THIS POST
1. I have looked at how court’s make decisions, what they can accept easily and what they will not accept easily, and WHY there is so.
2. I have looked at the “Fair Use” defense earlier. It didn’t really impress me, it was extremely difficult to find relevant cases supporting the specific use of that defense.
3. I then identified “in pari delicto” as a potential better defense strategy. It was about the TYPE OF DEFENSE, not about the exact method. A similar type of defense is “unclean hands”.
4. Arguments supporting “in pari delicto” will mostly revolve around your opponent’s wrongdoing rather than your own. It can easily be supported by court documents, e.g. “I’m primarily reporting from an ongoing case, SEC v. TelexFree, where my opponent is one of the defendants”.
@hoss
That question about “work of art” and “illegal in themselves” isn’t very relevant. She has not made any such claims. “Illegal in themselves” was about a different type of illegality, e.g. about invasion of privacy photos or other areas recognized by laws.
I haven’t looked at those photos, but the description doesn’t match your description of “took selfies of herself while committing illegal acts, i.e., promoting illegal securities”. She identified one photo as “selfie”, but she didn’t add anything about “… while I was promoting illegal securities”.
Here’s her description:
One problem in this case was that it was very difficult to identify the copyrights for privately owned photos. One reason for that was that copyright infringement typically is about commercial value / commercial use = most of the cases mentioned in the Wikipedia article about Fair Use were relatively irrelevant.
Other sources found on the internet pointed in both directions. I checked multiple sources, and Fair Use seems to be a tricky, gray area where courts will rule on a case-to-case basis, rather than a clear area where that defense most likely will work.
General strategic thinking should normally focus on clear ideas rather than vague ideas. That clearness was missing for the use of “Fair Use” as a primary argument.
THE TAKEDOWN PROCEDURE
The Norwegian copyright law was used to identify “Fair Use” more clearly. I haven’t found the correct U.S. rules yet, but the logic should be relatively similar for both countries (DMCA is based on international treaties). I also used it to identify the takedown procedure more clearly.
The Norwegian copyright law identified the takedown notice to the ISP or OSP as an “initial step”, as a safe harbor rule for the service provider (it can avoid lawsuits from the copyright owner by removing the access promptly).
The counter notification is another safe harbor, i.e. the ISP or OSP can avoid lawsuits from the website owner by restoring the access. Those two steps are usually the initial ones but not the final ones. The counter notification tells the copyright owner that the other party is willing to defend his case.
The third step can make it possible for a copyright owner to identify an unknown website owner, e.g. a protected one. The other alternative is to get an Ex Parte order from the court, ordering the ISP or OSP to remove access on a more permanent basis.
The fourth step is, in case of an Ex Parte decision, where the website owner can file his defense before the court. The alternative is to accept a permanently blocked access to the website.
Faith Sloan’s takedown attempt isn’t solid enough for third or fourth step, in terms of “risks versus rewards”. The initial steps are low cost / low risk, but the follow up steps are more costly and more risky. But the problem is that most lawyers will try to deliver exactly what their clients are asking them to deliver, i.e. lawsuits are very common because it’s exactly what the clients are asking for.
Of course its relevant. If there are no copyrights then there can be no infringement
The takedown notice was an initial action (similar to a refund request or other types of consumer complaints directly to a party). It can be followed up by additional steps, and those steps can identify more clearly what the complaint is about, e.g. expanding or changing the complaint to be about invasion of privacy (tort damages).
The purpose of the takedown action is to get a formal reply from the website owner, either removal of the disputed content or any other reply. It can be used to file a more specific complaint to the court, backed up by “I have received the following counter notification from the website owner …”.
But it can also be used for any other relevant decision. It doesn’t necessarily NEED to end up in a court.
You are getting lost in procedure. The letter cited DMCA and demanded removal of specific of copyrighted materials from the website.
Sloan’s assertion that the photos are protected is unproven and inconclusive.
By far the simplest way to begin to deal with this is to assert Fair Use because arguably whether the material is protected by copyright does not matter. In this view fair use trumps copyrights even if they exist.
I have little doubt this will be settled but if not, whether Sloan holds valid copyrights is of primary relevance.
Nope, I clearly separated between “court action” and “consumer action”. The initial takedown notice is of the last type. A consumer type of copyright owner can send a DMCA takedown notice without the assistance of a lawyer, e.g. by using a template.
I don’t think there has been any disputes about the ownership? She probably attached copies of those photos, in addition to the general description of the photos and where to find them in various articles. She also included some “good faith” statements, indicating that she hadn’t identified the other party’s side of the story.
You still believe in the “prior to 1989” ideas, where copyright was about registering rights at a national copyright office?
“Fair Use” is a defense rather than a right. It can, to a certain degree, be identified as some type of “indirect right” based on the First Amendment (Freedom of Speech, Freedom of Press), and Freedom of Expression. It’s a vague, tricky and gray area of law.
Your logic wasn’t very understandable. You first identified Fair Use to be the simplest way, “because copyright doesn’t matter”, and from that perspective Fair Use will trump copyright rules. That argument is “circular”, similar to the more commonly used argument about “God’s existence”, e.g. “God exists because the Bible says he exists, and the Bible is about the words of God and can be trusted”.
“Fair Use” does exist. It may trump copyrights, and that is also mentioned in most copyright laws. But it doesn’t mean “Fair Use will ALWAYS trump copyrights”, that idea will be rather flawed. Some types of “Fair Uses” can be not-so-fair, and will not trump copyrights because they’re not about the real thing.
Fair Use is generally about “acceptable use of the material”, acceptable for the owner of the copyright.
When a newspaper reports a news story, e.g. “The famous painting ‘Scream’ by Edward Munch was stolen tonight from the Munch museum”, it may be relatively fair to the copyright owner to print a picture of the famous painting in the news story, even without any type of compensation to the copyright owner.
The purpose is simply to inform the readers, “give the readers enough information”. It doesn’t really have any commercial function.
Copyright doesn’t trump general interests of the society, some uses can truly be about “Fair Use”. Other types of uses can be about fair use IF the copyright owner receives compensation. Some uses will not be fair even if the copyright owner is offered compensation.
Analogously that is what is going on here. The pictures are used to illustrate, dramatize and clarify reportage and that is fair use.
That’s junk. If the owner of the copyright had final say on what constitutes “acceptable” there would be no balance between owner’s rights and public benefit.
You need to retrace your steps back to the Middle Ages.
Not at all. I said “if” the rights exist. They exist as a matter of law and fact, not because Sloan says they exist or because she filed a registration form.
I didn’t say the owner had “the final say”? Some types of fair uses are already recognized, even without compensation to the owner.
You have probably misinterpreted something, e.g. added some of your own ideas when you interpreted the meaning of that post.
I gave one example for truly fair use for a newspaper, and pointed out that SOME uses will only be fair with compensation. Some uses will not be fair. Viewpoints like that have been up to date for centuries or millenniums.
There does not need to be because the issue at stake is fair use. Are you following any of this?
I used a (hypothetical) recent news story as an example, where a photo of the famous painting was used to give the readers enough information. The photo itself didn’t add any commercial value to the news story.
It seems like you have focused on some different ideas.
“Dramatize” is normally about adding something that initially wasn’t there, e.g. about adding some type of additional value to an article, about an improvement of a story. I didn’t identify that as fair use.
“Illustrate” will normally require compensation to the copyright owner, e.g. a book about “The famous painter Eward Munch’s artwork”, illustrated with photos of many of his paintings, may require compensation to a copyright owner to be fair use.
One major difference between my ideas and your ideas is that your ideas will add value to a work, WITHOUT taking care of the interests of the copyright owner.
I’m not following YOUR ideas. I have analysed some of them, and I have pointed out some logical flaws like the “God’s existence” fallacy (circular arguments). I have also made some other corrections.
I can discuss the idea of “Fair Use”. I have already pointed out that Fair Use typically will be about “acceptable use of the work”, “acceptable to the owner”. You have probably applied different ideas, and I haven’t really “got” those ideas yet.
Most reasonable owners will be able to identify whether a use is fair or unfair, so the “final say” theory is rather irrelevant. There are SOME cases where that theory can be applied, but they’re not very common.
I know one example where a property owner removed a part of a brickwall / concrete wall with a “street art painting”, in order to sell the artwork in the open market. But I don’t know the final result of that story (he did own the property rights, but he didn’t own the moral rights).
Is this going to be the new “go to topic” for you two? 😉
@hoss
You can look at this example rather than hypothetical ones:
https://behindmlm.com/companies/telexfree/dept-homeland-security-raid-telexfree-offices/#comment-239461
I pointed out a not-so-fair use of a photo, the raiding of TelexFree’s office by Homeland Security. The photo is at the top of the article, while my comment is among the first ones in that thread.
Fair use would have required compensation to the copyright owner / press agency. Copyright owners may accept a random use of a photo as fair use, but they will usually not accept repeated use of other photos on a regular basis.
The photo is used to “illustrate, dramatize and clarify”. That doesn’t automatically mean the use is fair in itself, but it may be acceptable (people CAN be flexible).
Your ideas would probably have identified the use as fair. I identified it to be not-so-fair from the viewpoint of the owner. But I didn’t identify it to be very harmful either, and a reasonable owner would probably have accepted a one time use like that.
The fact that people openly can discuss whether the use is fair may make the use itself become more “acceptable”.
What you said is that fair use is determined by what is acceptable to the owner. Like I said….Junk
It doesn’t make much sense trying to read something out of context. The post contained much more than a single statement.
It started with the general idea:
Then it was followed by one example for truly fair use, even without compensation to the owner. Then I mentioned not-so-fair-use (fair only if the owner is being compensated), and then I mentioned some type of unfair use (not fair even if the owner is being offered compensation).
The additional information was there all the time. If you missed it, it was probably because you decided to ignore it.
I CAN discuss the general idea here, e.g. whether Fair Use is about “acceptable use of the material” or whom it should be acceptable for. I can also discuss some of the details, but you’re focusing on something that will be rather meaningless to discuss (you have derailed from the topic, focusing on how to interpret other people’s comments rather than on the topic itself).
The way you stated it “acceptable use” was defined as that which is acceptable to the owner.
Stating a few examples of what YOU see as acceptable,(fair, not so fair, or unfair) is extraneous if fair use is “about” what is “acceptable to the owner.”
You are not the owner. The court is not the owner. Only the owner is the owner and according to what you said, it is he alone who decides what is acceptable. That’s junk.
Fair use is “about” more than what is “acceptable to the owner” and it must be so if there is to be any balanced societal benefit.
Absolute ownership died.
“About more than …” is clearly accepted. I don’t believe there has been any disputes about that?
“according to what you said, it is he alone who decides what is acceptable” isn’t possible to identify.
* It starts with “according to what you said”
* then it suddenly switches to something I haven’t said?
I have neither stated anything about “final say” nor about the owner deciding anything alone. You’re repeating your OWN ideas, but you have failed to check the correctness of those ideas. It was also pointed out in my previous post.
I didn’t say that either. You may be looking for “definitions”, but I haven’t posted any. I have already explained the logic in that post.
I’m not able to interpret the meaning of that. If you have mixed in some flawed ideas, e.g. about “definitions” or “final say”, it will be very difficult for me to understand the conclusion.
I prefer to focus on the topic itself rather than on various interpretations of something I posted 30 or 40 posts ago.
You lost sight of the topic a week ago.
Here’s some highly relevant info from Wikipedia about the DMCA Takedown procedure, with a lot of details which were missing from other sources I found (I found similar but not so detailed info in the Norwegian copyright law).
http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act
I only had a quick look at it, to see WHAT it contained and that it actually contained something useful. I haven’t checked any details.
Your typical disclaimer which is supposed to excuse any non sequitar that pops out of your mouth. Got it.
It was simply the truth. I didn’t check details, only the relevance. “The focus should be on the relevance rather than on the details”.
The opposite idea can probably be used too, a focus on details rather than on relevance.
norway, hoss , your to and fro above ,is reminiscent of the bill clinton affair , where he rationalized his position to the grand jury by intelligently stating :”It depends on what the meaning of the word ‘is’ is. If the–if he–if ‘is’ means is and never has been, that is not–that is one thing. If it means there is none, that was a completely true statement…” 🙂
here is some more fodder for your intellectual debate : what is the law regarding using hacked material on your own blog [use of sloans RE account details ,which were hacked by an anonymous hacker and posted online].
this could be a more serious issue, than fair use of photographs, but i cant find a lot of clear information about the law on this subject .
It’s “highly questionable”, but Snowden’s material was accepted by many big newspapers because of high public interest. Wikileaks have been accepted too, when used indirectly. So reporters can look at stolen material from a third party source and use it indirectly in an article, but they can’t give readers direct access to the same material.
I have looked at that article as a potential weak part of a defense based on “Fair Use”. It’s also one of the main reasons for why I have asked some critical questions about “bogus complaint”, “Fair Use”, etc., and why I have checked multiple sources.
It’s also one of the reasons for why I mentioned “In pari delicto” as an alternative defense, much more believable than “Fair Use”.
“Fair Use” as a defense strategy clearly has some weaknesses, e.g. if you interpret it incorrectly as a right rather than a defense, if you interpret it to cover all types of uses and all types of material, and so on.
Apparently you do not know what you said.
If the owner does not have the final say then who does? A court perhaps? You pick the final arbiter…. but if its anyone other than the owner, then your statement that…
“Fair Use is generally about…what is “acceptable for the owner of the copyright” is false because what is acceptable under fair use will be decided by the final arbiter NOT the owner.
Let say instead that the final arbiter is the law. What does it say?
“In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material WITHOUT ACQUIRING PERMISSION from the rights holders.”
Need I point out that if permission is not required then what the copyright holder wants is irrelevant. His permission is not required.
Any assertion the fair use is “about” what the owner finds acceptable is flat out wrong.
right. oz was smart not to link to the hacked material .
in the recent barett brown case , which is being cited as a ‘test case’ by lawyers and activists ‘who fear that a conviction could set a precedent that would criminalize the very act of linking on the internet’, brown actually provided a hyperlink to hacked files, and this caused his trouble. interested readers can check this out:
theguardian.com/law/2014/mar/04/attorneys-barrett-brown-hyperlink-hacked-material-want-case-dismissed
barett brown has since entered a plea bargain with the prosecution , so this test case will sadly not throw up future guidance .
further, the material provided by oz , about sloans earnings in a new ponzi scheme , while claiming poverty before the court , can however not be used as evidence by the SEC, as such evidences would be inadmissible for being acquired in violation of the constitutional right to privacy of correspondence, of the person whose data was hacked.
the SEC has to find another route to this data.
The discussion with hoss has been about how to interpret my post #105, e.g. whether to focus on details or reading the whole context. It’s mostly about the opening line, about “acceptable for the owner of the copyrighted material”.
I have already stated twice that it won’t make any sense discussing various “interpretations” of that post, e.g. whether the statement is general or an exact definition. That off-topic discussion have probably been ended in post #118 (my post #120 is back to topic).
To make that disputed statement become clearer, it was simply a summary of what the copyright law is about, written from the same perspective as the law itself, but with a focus on “Fair Use” exceptions. Other aspects of “Fair Use” have been covered in other posts.
Post #120 added some missing material. I finally managed to find some U.S. rules for DMCA takedowns in a “not so cryptic law language”. So I’m back to topic again.
Posts #121 and #122 are about something else. I don’t know exactly what, but they can’t be part of the same discussion.
Note:
There may still be some valid arguments related to that post (#105), e.g. you had a valid viewpoint there when comparing the discussion to Bill Clinton’s defense arguments.
I ended that discussion in post #118, because it won’t make any sense discussing various “interpretations” of a post.
Try to discuss the topic itself? Or try to add some material?
A valid MAIN argument can be e.g. “Fair Use isn’t solely about the owner’s interests”. It can be backed up by other valid arguments.
A not-so-valid argument is the “according to you” argument and similar types of arguments. They will typically point to your OWN ideas, e.g. you may have focused on some specific details out of context with the post itself, or you may have applied some specific ideas for how to interpret it. You can’t reasonably expect people to recognize those ideas?
If you want to analyse the details in my posts, you should normally start with “I have interpreted that statement to be about …”, clearly explaining which idea you have applied. Otherwise I won’t be able to recognize it clearly.
If you want to use “according to you” types of statements, point directly to that statement first and explain your own interpretation of it.
COUNTER REPLIES
“There hasn’t been any disputes about that?” simply means that I’m unable to recognize any disputes. There may be a dispute somewhere, but I’m not able to recognize it.
Example:
“Fair Use isn’t solely about the owner’s interests” is a valid argument in itself, but it may not be valid as a counter argument to a statement like “Fair Use is generally about “acceptable use of the material”, acceptable for the owner of the copyright”.
It will not be valid because the term “solely” will make radical changes to the meaning of the original statement. The argument itself may be recognized as valid, but the use of it won’t make much sense.
Well the “original statement” needs to have its meaning radically changed doesn’t it? After all the copyright owner does not unilaterally set public policy or decide the parameters of fair use.
@anjali
“OPG v. Diebold” may partly answer a fraction of your “What about hacked material?” question.
http://en.wikipedia.org/wiki/OPG_v._Diebold
Some websites published some hacked e-mails, revealing some problems with voting machines. They received threatening C&D letters, followed up by DMCA takedown letters if they did’t remove the offending material.
OPG went all the way to court, and got a summary judgment for that e-mails were not covered by copyright laws, and filed a counter suit to cover legal costs and expenses. Diebold settled by paying $125,000 to OPG.
The summary judgment contained statements about “using DMCA as a sword (to attack enemies) rather than as a shield to protect copyrighted material”, i.e. it didn’t find Diebold’s practice to be correct.
It doesn’t directly answer your question, but it should probably add some type of knowledge to it. It’s not easy to attack a third party for publishing stolen material, if the material itself isn’t protected by the law.
Why does it need that?
You have rather complicated ideas about how to process information, and it’s not always easy to understand those ideas. I can’t see why it needs to have its meaning radically changed.
That argument is valid in itself, and I don’t think there has been any disputes about it? But it doesn’t explain why you will need to change the meaning of the original statement.
If you change the meaning of the original statement, it will be possible to create an imaginary dispute, and to pick up an imaginary fight.
Why? Because its back asswards. Does that explain it?
It doesn’t. The original statement was relatively correct in the context where it was written, as an opening line for something that followed immediately after. It wasn’t meant to be interpreted separated from the context or to have its meaning radically changed.
Maybe we’re discussing two different things here? That won’t be the first time, it has happened several times.
If we’re discussing two different things, then you should have posted your posts “stand alone” rather than attaching them to my comments.
The material itself was screenshots, “invasion of privacy” or maybe “business secrets” rather than “stolen material”.
From my POV, it seems like you have relatively correct ideas about “compromised evidence”. I’m familiar with the general idea but not the details for that.
I’m a former sales man, so I will not dive deeply into interpretation of laws or technical details, I will only read enough to communicate something. You can’t expect “expert answers” from me.
I have actually browsed through evidence rules, but I did it for another purpose than this one. I did it when I analysed “Amway 1979” in a Herbalife thread, one of the newest ones. They’re not the correct types of rules, i.e. I don’t think you will find anything about “compromised evidence” there.
As a former sales man, I will try to identify “which buttons to push” rather than analysing laws, e.g. I will analyse the RESULTS of legal arguments, whether they have been accepted by the court or have been denied. That also includes predictions like “CAN be accepted” and “will probably fail”.
You read laws like a Bible, but it doesn’t look like you’re checking the actual meaning.
Here’s Doctrine of Fair Use, from copyright.gov:
The doctrine is simply about how to identify fair use. It can’t be used in the way you described it, as some type of “license” to use material without permission.
People can clearly use some material without permission, as long as it is about fair use. But the problem is that people may have rather weird ideas about “fairness” or about laws in general.
In short, my Fair Use source will trump your source, because it identified the doctrine more clearly.
What you quoted is not the doctrine of fair use, in fact its no doctrine at all.
Homework: look up the word doctrine and understand what it means before posting anything else on this topic.
Here’s my source. Please show me your source?
NOLINK://www.copyright.gov/fls/fl102.html
That won’t make much sense? I’m not reading definitions like a Bible, e.g. interpreting small details in specific ways so they can support my own belief system.
I will simply try to identify relevant sources with relevant information (but it may fail from time to time because I don’t check each and every detail).
Here’s an additional source:
NOLINK://www.law.cornell.edu/uscode/text/17/107
My 2 sources should clearly trump your source. They should also trump your “homework”. 🙂
NOLINK://www.merriam-webster.com/
To remove doubts about the Fair Use doctrine, here’s the complete one … quoted directly from the law (link in post #138).
Fair Use can generally be described to be “a tricky, gray area of the law”, tricky both for the copyright owners and for the ones using material, e.g. I had great difficulties when I tried to identify the copyright protection for privately owned, non commercial, non portrait photos, publicly available on the internet.
Even professional publishers like newspapers will find it to be tricky.
NOLINK://www.news.hypercrit.net/2013/07/17/was-the-tribune-right-to-use-facebook-photos-in-a-news-story/
Nolo.com see it as a privacy issue rather than a copyright issue:
NOLINK://www.nolo.com/legal-encyclopedia/question-unauthorized-use-of-photo-28285.html
Professional photos can more clearly be identified to be copyright protected, because they’re commercial products in themselves (“the nature of the copyrighted work”).
I have no doubt what the Fair Use Doctrine is…..and its not a statute or a list of tests and rules.
You really need to understand what a doctrine is if you are going to perch yourself up your pedagogical chair.
along with fair use rules employed by the judge , in ruling in favor of OPG , there was also an element of ‘“In pari delicto”in the courts mind.
diebold could not claim copyright infringement, because they were trying to protect their ‘culpability’ about something , which is not the ‘purpose’ of copyright protection .
en.wikipedia.org/wiki/OPG_v._Diebold
I wasn’t talking about your lack of doubt either. I tried to identify it more correctly than that. 🙂
Try to google “Fair Use doctrine”?
Or look at your own Wikipedia/Fair_Use source, and you will find exactly the same rules, shortly after the part you cited.
http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_States_law
You can of course post your own theories. I can look at them if they make some sense. But starting from a definition of what doctrines are about makes very little sense.
I have clearly identified what most people call “Fair Use doctrine” for copyrighted material. My 3 sources (Wikipedia included) should clearly trump your vague theories. 🙂
Copyright laws are designed to protect Intellectual Property rights for the copyright owners. The Fair Use doctrine is about EXCEPTIONS to that protection. It’s a tricky, gray area of the law, a defense against unreasonable lawsuits rather than a right.
I haven’t read all the details there. I will first of all look for “which buttons to push, which not to push”, i.e. what the court will accept or deny (and WHY and HOW decisions are made).
Diebold failed to prove that the e-mails contained any copyrighted material (they focused primarily on proving the opponent’s alleged wrongdoing). The takedowns weren’t followed up by copyright lawsuits against anyone, like they normally should have done if the e-mails had contained copyrighted material.
Diebold used the DMCA takedown notices as a sword rather than as a shield, as the primary and only weapon in an attempt to silence critics about something that clearly had public interest. That’s a misuse of the law.
WRONG BUTTONS
“The wrong button to push” is to make “bold claims” about rights you don’t legally have, e.g. expecting the court to see your case as you see it yourself. The judge had some reactions to Diebold’s attorney’s description of DMCA takedowns as a quick and easy way, “just like it was intended by the legislators”. Legislators didn’t intend it to be used as a sword.
Making bold claims about “Fair Use rights” will probably be a wrong button to push. A court may see that as a problem, as a misuse of fair use rules.
Posts #91 / #98 analysed some “wrong buttons to push”, i.e. bloggers may not automatically be seen as “journalists”. They CAN be accepted in that role, but not automatically. In cases where “news media” can be relevant as a defense, it will be better to SHOW some “news media functions” as a part of that defense.
An identifiable function as “news organization” may be part of a defense. Those 2 bloggers I analysed in post #98 failed to show it properly.
The Fair Use doctrine is PERMISSIVE as it accords right of use to persons who would otherwise not have them while being fair to copyright holders.
Copyright Act of 1976, 17 U.S.C. § 107. (in part) essentially states that:
“…the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, research, etc. is not an infringement of copyright.”
Which is to say that a person may have a fair use RIGHT to use copyrighted material. The statutory tests you quoted are used to determine if this is the case.
Which is to say that the possession of such a RIGHT where it exists is why a person (like Oz) has a defense against DMCA takedown letters or lawsuits which allege infringement in the first place, and why your statement that fair use doctrine provides “a defense against….. lawsuits rather than a right” is only partially correct.
This is because the RIGHT of use under fair use IS the defense. Defense: I have the right to use this photo and I can prove it using the four prong test… etc
Which is why I took issue with your previous statement that fair use is “about” what is acceptable to the copyright owner. It can’t be… since the owner’s rights are SUBJECT TO the RIGHTS of others if the fair use test is met.
The copyright holder can accept the use of his material or dispute it but the law determines what is fair use not the copyright holder.
United States copyright law, fair use is a doctrine that PERMITS limited use of copyrighted material without acquiring permission from the rights holders.”
….and how do we know if use is permitted?
“In determining whether the use made of a work in any particular case is a fair use (permitted) the factors to be considered shall include: 1-2-3-4 etc……..”
“Statutory tests”? From Wikipedia (the section I linked to):
I have already covered how it can be seen as a limited right, e.g. SOME types of uses are fair use, and you don’t need to ask the copyright owner for permission. Some types of uses are not-so-fair, and some types will be unfair.
You have the right to a fair use without asking the copyright owner for permission. But that doesn’t mean all uses will be fair, or that “Fair Use” will trump Invasion of Privacy. It’s a very limited right.
The description of Fair Use as an EXCEPTION to copyright protection is much more correct. “Tricky, gray area of the law” is also more correct.
Note:
Since I partly got lost when I tried to follow your theories, you will need to clarify your use of the term “right”.
I described it to be a very limited right, based on exceptions to the copyright protection. Your use of it seems to extend far beyond copyright, far beyond fair use?
You seem to follow the theory “The Law DEFINES what’s fair use” rather than “the Law ALLOWS certain types of fair uses”.
You will normally need to identify the realities first, before you can apply any law? You can’t start from the opposite direction = identify a law first and apply it to the realities.
That last method will work like this:
“The law permits using a fraction of a work, so my use will be fair and legal. I have the PERMISSION from the law to use it”. In reality, the work you have copied can be illegal pornographic material, especially the small fraction you copied. 🙂
That’s a major flaw in your theories. You have convinced yourself about the permissive powers of a Fair Use doctrine, so you fail to see the doctrine as it is. When you see it, you will interpret it as “Statutory rules, not the doctrine itself”.
Actually you have been insisting that “The Fair Use doctrine is about EXCEPTIONS to that protection” and that Fair use is about “what owners find acceptable” both of which are upside down.
That’s correct the user has the RIGHT in accordance with common law practices, the doctrine, and statute.
It looks like that from the copyright holders perspective (which is narrow) but the legal doctrine springs from a need and desire to broaden use of copyrighted material for the purpose of parody, news reporting, teaching, scholarship, research, etc. Its the doctrine of fair USE not fair exceptions.
The statute enumerates four prongs that a court would consider in determining if a use is considered fair use, but as I have been attempting to get across to you, fair use is a doctrine and as such more principaled and general than rigid definitions.
If you believe now that “the law ALLOWS certain types of fair uses” you are on the right track. Allowing is permitting and if one is permitted then one has the right.
The copyright law will only regulate copyright matters, people will still need to follow other laws. “Fair Use” doesn’t give any general permission to use material.
The facts:
The material in question here are privately owned photos, partly about screenshots of the photos, partly about a copy of a photo. There’s no disputes about the ownership to the original photos. Copyright laws are vague when it comes to photos in general, they usually have low commercial value but high emotional value.
The owner may have:
* Privacy rights
* Publicity rights
* general Property rights
* Intellectual Property rights (copyright)
“Fair Use” can only be applied to one of those areas, to the copyright fair use. You can’t apply a law to other areas than what it is intended to cover.
DMCA takedown notices can only be applied to one of those areas, but a complaint to a court can be extended into those other areas. A complaint doesn’t need to be solely or primarily about copyright.
“A shield rather than a sword”
The “Fair Use” defense will most likely fail in those other areas. It’s simply the wrong type of legal argument, i.e. you can’t apply copyright rules to every area of law.
A right can only exist as long as it doesn’t violate any rules. Fair Use is a shield rather than a sword, a shield designed for specific uses rather than for general ones.
You said it.
But you have failed to identify the doctrine itself? You cherry picked a general description from Wikipedia, but you ignored some related information.
Your arguments have tried to build up a hypothetical “Fair use doctrine”, starting from Merriam-Webster definitions of “doctrine”, applying your own theories about “rights”. But you have failed to find a matching reality.
I have linked to and cited the whole doctrine, but you have failed to recognize it as the real thing. If another version had existed, one of us would most likely have found it. The fact that you can’t find another version indicates that it doesn’t exist, it’s a product of your own imagination.
That’s actually how Wikipedia describes it, in the same section you cited from in post #125, where you simply ignored the opening line and started from the second sentence.
The first sentence goes like this: “Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work”. Followed by: “In United States copyright law, …”.
You interpreted a general statement in Wikipedia as “the law” rather than as “Wikipedia”. “The final arbiter” was Wikipedia. 🙂
Well now that we have had our little chat this little bit remains. Where in the “the doctrine” did you find this?
Champ? or Chump?
I didn’t find it there. I didn’t look for it either. My previous post was a reply to the first part of that quote. The second part has already been answered several times, so I didn’t repeat anything for that part.
I didn’t find the first part in the doctrine either. I found it in Wikipedia, in a general description. I gave a clear description of that, e.g. by citing your post #125.
I didn’t use exactly the same words as Wikipedia, but the meaning is largely the same.
I’m sure you didn’t
Well go ahead and do so. I’ll wait. Its a short piece.
So would it be wrong to say you pulled it out of your ass.
Nope. I quoted a succinct third party explanation of fair use, not the actual law. It was sufficiently accurate for the purpose and clear.
You on the other hand linked to a website or two, some statutes and self defined them as “the doctrine” and then patted yourself on the back believing that you understood the extent of the law and the doctrine underlaying it…. but you still do not understand what doctrine is, though you have satisfied yourself that it is fully encompassed in 17 USC part 107 which you linked to on three occasions.
Here is my response to that:
Now where is your citation that proves that fair use is “about” what the owner will “accept.”
‘cmon folks. Fair use cannot possibly be about what the owner will “accept.” What is this absurdity?
You might as well say domestic violence is about what the victim will “accept.”
You mean you thought that the half a page of meandering bullshit and confusion that comprised post #128 was supposed to convince me that you had a clue what you were talking about? I am a patient and attentive reader but that was meaningless crap.
Cite something from 17 USC part 107 that supports what you have said. (you know the thing that is the “doctrine.” or pack it up.
I seriously believe you have misunderstood that part, e.g. that you were looking for a definition or something that simply wasn’t there. You tried desperately to change the meaning of it by adding “final say”, “solely”, “unilaterally” and other expressions.
I could have made it clearer, and I have also tried that by adding a couple of lines. But you didn’t respond to that either, it caused even more conflicts.
If it was Wikipedia, you might as well say it. Wikipedia was the only search hit on the first page which exactly matched the search string. “Succinct third party” is rather vague, much like the rest of your ideas.
If it wasn’t Wikipedia, can you tell me which source? If it was clear, you should probably share it with others, rather than keeping it a secret. 🙂
You seem to get a boner whenever you “discover” where a quote came from. Who gives a rip.
If you want to know where something comes from just ask, but I am not attempting to hide it or be vague. Youre just throwing out meaningless crap to hide the fact that you have no valid response to my enquiry.
I have asked you three times what you actually meant or to provide some citation that supports your contention that an owner has any say at all in what acceptable under fair use and all you give me is garbage combined with bullshit about how Wikipedia had something kind of like that somewhere.
If there is one thing in the statutes (which you yourself posted and touted as the gold standard of fair use doctrine) then quote it and quit with the childish and lame ass attempts to deflect the question.
I said it before but it bears repeating, your statement that “Fair Use is generally about “acceptable use of the material”, acceptable for the owner of the copyright” is complete junk and it illustrates how little you actually understand of the topic.
You have probably misinterpreted it. I never used “final say”, “solely”, “unilaterally” or similar expressions.
You got one answer in post #133:
“Fair Use” is generally about “acceptable use of the material”, acceptable for the [reasonable] copyright owner.
“Generally” was used in the meaning of “it will be true in most cases, but not in all”. It wasn’t used in the meaning of “the whole and ONLY truth”.
It was supported by examples for “truly fair use”, “not-so-fair use”, “unfair use”.
It must also be interpreted in the context that fair use is limitations and exceptions to copyright protection, rather than a “license” that extends beyond the scope of copyright protection.
I have no idea what you’re talking about there?
Your question isn’t very clear, i.e. “you thought of” may be very difficult to identify correctly. I’m pretty sure I didn’t think like that.
Basically, you’re asking the wrong types of questions, e.g. if you ask “where did you find that in the doctrine?” then you have already excluded all meaningful answers – you won’t be able to recognize them. And I may not be able to recognize the questions either.
I will usually check the source to see if it becomes clearer. There’s nothing wrong in that?
People must of course have referred to some sources first, or else it won’t make any sense asking for sources.
I did actually ask.
It WAS Wikipedia. No response was necessary
Quit with the distractors already.
Whether you actually used any of those expressions is immaterial as any one or all of them are implied if fair use is “about” or dependent on what is acceptable to the owner. (which it isn’t)
Since you have been unable to provide a citation or reference that even hints that fair use is about “what is acceptable to the owner” I conclude there are none. Thus, there should be no further dispute concerning whether “fair use trumps copyright.” It does, and your assertions to the contrary were junk.
Next you can explain how the fair use doctrine accommodates the payment of money as a remedy for “not so fair” use of copyrighted material. That should be an intriguing voyage of discovery. Let me know if you sight land.
Quit with the distractors already.
Whether you actually used any of those expressions is immaterial as any one or all of them are implied if fair use is “about” or dependent on what is acceptable to the owner. (which it isn’t)
Since you have been unable to provide a citation or reference that even hints that fair use is about “what is acceptable to the owner” I conclude there are none. Thus, there should be no further dispute concerning whether “fair use trumps copyright.” It does, and your assertions to the contrary were junk.
Next you can explain how the fair use doctrine accommodates the payment of money as a remedy for “not so fair” use of copyrighted material. That should be an intriguing voyage of discovery though I doubt you will sight land.
Well that certainly clarifies things.
The problem is that we’re using 2 different ideas, so we’re basically discussing 2 different things. I had already concluded that Fair Use was a tricky, gray area of law = exceptions and limitations to the copyright protection rather than a clear permission. So I analysed different nuances of fair use, from truly fair to unfair.
The areas of use listed as exceptions in the copyright law are not unfair to the copyright owners, so the statement was correct enough in itself. It will not be correct if you apply various ideas to it, like you try to do.
If you want to test the correctness of that statement, you should normally point out areas where the Fair Use clearly will be unfair to the copyright owners, i.e. areas of use where the copyright owners will be harmed commercially by the use. There will probably be SOME not-so-fair areas of use, but “Fair Use” is generally fair to the copyright owners too.
I can clarify it, by using the same example.
If I never have made any statements about something (e.g. a statement about a source), then a question about it can be rather meaningless.
I used the “Where in the doctrine did you find that?” question as an example. The question was rather meaningless, since I never made any claims about using the doctrine as a source there. I used some general information from Wikipedia for the first part of that question, and no direct source for the second part of it (it had 2 different parts).
If the question is rather meaningless, the answer to it will be rather meaningless too.
#151 I initially stated Wikipedia as a source, and identified WHERE
#152 You asked question about a different source
#153 I gave you the answer “I didn’t use that source, I used Wikipedia”
Your question was logically incorrect. I had already stated a different source than the one you were asking about. The only valid answer would be to repeat the initial information.
Impossible
Non infringing uses are PERMITTED because they are deemed to be as “fair” to the copyright holder as the law allows. That’s where it ends.
That’s still a convoluted, muddy mess. I have no idea what you are trying to say.
That’s why I won’t spend too much time and efforts trying to clarify something either.
I have recommended a focus on the topic itself, rather than a focus on small fractions of other people’s comments. It seems to be the cause of confusion rather than a solution to it.
The post itself (#105) identified all 3 different interest groups, and the post was relatively balanced between them.
Those 3 different interest groups:
1. The interests of the copyright owners.
2. The interests of the ones wanting to use material.
3. The interests of the society as a whole.
Those first two interest groups, analysed by using a hypothetical example.
The third interest, generally mentioned.
The discussion is rather absurd, but the post itself covered some important factors, e.g. it identified those 3 different interest groups rather than focusing on a single one. It also identified some additional factors, e.g. non-commercial information purposes versus commercial ones, different nuances of fair use, compensation as a part of fairness.
Where did you get this idea?
Why would a court order compensation to a copyright holder if there was no infringement.
You really seem confused by this. You can not buy fair use….but you can buy a license to use copyrighted material.
Look at the four prong test judges can use as a guideline to determine if something is considered fair use. Do you see anything that suggests that sufficient compensation paid and acceptable to the copyright holder is a criterion of fair use?
I wasn’t talking about court orders there, but about fair use. A newspaper can sometimes use photos without permission from the copyright owners, e.g. if photos posted on the internet are the only photos available to cover a recent news story. But that doesn’t mean they don’t need to pay for the use of the material.
One way to handle copyright infringement claims is to offer a fair compensation for the use, i.e. to get the permission to use the copyrighted material AFTER they have published it. Most copyright owners will prefer a fair compensation rather than a costly and risky court case.
Misinterpretation of Fair Use can be costly. The Haitian photographer Daniel Morel won a $1.22 million claim for damage reliefs against Agencie France Presse (AFP) and Getty Images, for the unauthorized use of his photos from the 2010 Haitian earthquake (published initially on Twitter, but stolen and republished by another Twitter user).
NOLINK://lens.blogs.nytimes.com/2013/11/23/haitian-photographer-wins-major-u-s-copyright-victory/?_php=true&_type=blogs&_r=0
“We offered him a fair compensation, but he didn’t accept it” is a valid defense.
If they successfully argue fair use they will not have to pay anything. Fair use provides for an exclusion to copyright protection.
You are describing the purchase of a license, or payment under the terms of a negotiated settlement, neither of which falls under the purview of Fair Use.
No doubt. Fair use is non infringing and thus free. Compare that with paying damages or being forced to pay a licensing fee. It pays to know the difference.
Defense of what? Infringement. No. You can’t unring the bell if infringement occurred. Offering to pay money is not a defense its a way to settle.
If a use is fair use, it is non infringing and free, if its not fair use, it infringes and the infringer must desist and/or pay (though it may take a Court Order to accomplish this.)
I’m not trying to reflect YOUR ideas, e.g. the one about a separate “Fair Use doctrine” we haven’t found yet. I have applied some common sense.
* All relevant search hits for “Fair Use doctrine copyright” points to U.S.C. 17 §107
* en.wikipedia.org/wiki/Fair_use#See_also doesn’t list any “Fair Use doctrine”, as it normally should have done if a separate doctrine had existed.
* en.wikipedia.org/wiki/Fair_use have no links to a separate “Fair Use doctrine”, like it normally should have had if it had existed.
* It has however a link to “doctrine” (legal doctrines). You should probably check that one. en.wikipedia.org/wiki/Legal_doctrine
* en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_States_law points to U.S.C. 17 §107
Common sense tells me that if your hypothetical doctrine had existed, one of us would most likely have been able to find it. Currently it only seems to exist inside your own head. I may adjust my viewpoint if it pops up later.
I’m using “business logic”. It may accept vague ideas for a while, but it will separate them from more reliable ones.
its not hypothetical, its been identified for you a half a dozen times but for reasons I do not understand you haven’t grasped what a doctrine is and how it fits into the law. Maybe you are really good at solving Rubik’s cubes but you suck at this.
Follow the link below and you will find an alphabetical listing of doctrines and principals. Among them will be Fair Use:
en.wikipedia.org/wiki/Category:Legal_doctrines_and_principles
And it leads back to the Fair Use article, which points to U.S.C. 17 § 107. So that explanation failed too.
Your best chance to find any external fair use doctrine is probably to follow my advice and google variations of “Fair Use doctrine copyright“, and check more than the first few hits.
BTW, here’s Wikipedia’s description of “Legal doctrine”, so we can exclude the religious ones:
My intention is to stop the discussion about how to interpret various things, e.g. how to interpret my post #105 or how to interpret the information found about “Fair use doctrine”. The explanations in post #171 and #177 should be more than enough.
I think what you’re really saying is that you are failing to understand the explanations. How do I know this?
Because, after 50 odd posts on the topic you still don’t really understand what Fair Use is and have inexplicably concluded that there is no such thing as a Fair Use Doctrine.
Right around Post #2 I suggested you read up on Fair Use. I am sorry I did that.
Incorrect logic. You have failed to look at the realities here, e.g. I used MANY different sources, and your posts were ranked relatively low on my list.
I checked more than 20 different sources initially, trying to get a wide range of viewpoints from various groups of “professionals” (reporters, photo journalists, editors, “law people”, etc.). Here’s some of them (links disabled):
Your posts simply didn’t manage to compete with external sources. That’s the truth.
I prefer factual information rather than constructed theories, and I prefer “balanced information” rather than biased one (I will try to identify a range of valid viewpoints rather than focusing on some specific ones).
I will typically try to look at BOTH sides of a story, e.g. I have accepted that the opening line in post #105 could have been improved.
You offered very little factual information. Most of your efforts were focused on rather unimportant details, e.g. discussing “the true meaning of post #105”.
Most of the sources I used were slightly biased in some directions, e.g. photo journalists saw it from a different perspective than “law people”. But that’s not a problem if the biases are identifiable and relatively rational.
That’s some real hard hitting stuff you’ve been reading. I think I see why you like it. Its easy on the head.
Aside from a few cursory admonitions that Fair Use is a slippery grey area so be careful of the copyright boogie man … followed by a rehash of the piffle that’s on the Copyright.gov website, there was nothing substantive in any of these articles concerning Fair Use.
You’ll learn more about that reading the Journal of the Norwegian Philatelic Society.
Improved? Post 105 needs to be deleted, burned, thrown in a garbage pit and eaten by worms. It conveys the essence of your misconception concerning Fair Use and nobody should ever be allowed to read it again….ever…including you.
Don’t ever try to improve it. Its impossible. Just electroshock your brain, remove all memory of the absurdity and take a fresh run at it after some bed rest.
You probably looked for something specific, like reflections of your own ideas. You won’t find it.
The difference is that I didn’t solely try to interpret the rules. I checked how various groups of professionals handled different uses in reality, what types of decisions they made and why.
The one thing that was difficult to analyse clearly was Facebook photos, privately owned photos available on the internet. Newspapers will generally not use material like that, other than in highly important cases where the use can be legitimized. They will not trust your hypothetical “Fair Use” ideas.
Various groups of news sources (journalists, editors, photo journalists) generally had the same problems I had in identifying clear rules for certain types of uses.
I can point to professionals like BBC, and indirectly show that they don’t recognize your “Fair Use” ideas:
Pieces of information like that won’t prove anything, but they may fill in some important pieces of the puzzle and help people interpret the problem more correctly.
I have generally been looking for relevant answers to relevant questions about some topics related to copyrights / use of material, covering a wide range. I have looked for the type of information people in general may find useful. I have no idea what you have been looking for.
I have no problem defending the post itself, but I have problem defending the discussion around it.
That post caused the thread to derail from the topic, and that should have been avoided. The opening line was in conflict with some “beliefs”, and that could have been identified more clearly.
I defended that post in post #171 by simply re-posting the whole post and generally identifying a few factors. It wasn’t more difficult than that. The discussion is much more difficult to defend, it doesn’t contain anything useful.
That is not at all what it “points out,” (either directly or indirectly) but exactly the opposite; BBC indicates it was mindful and aware of copyright protections…. but due to the “exceptional situations” went ahead and published anyway.
Why? Because the use was almost certainly permitted under the UK’s long established doctrine of fair use and even if the person whose photo was used claims otherwise, the person would have to prove there was harm. For you to conclude from the facts presented that BBC does not recognize Fair Use doctrine strains all credibility.since its been recognized in Great Britain since the Statute of Anne of 1709.
So catch up. You’re about 300 years behind.
There’s a potential wide range of relevant questions here from a wide range of people. I have tried to look at a few of those questions from a general point of view rather than from a specific one (e.g. I have tried to look at both sides). I didn’t try to identify any exact question, I only identified various areas where relevant questions could arise.
FACEBOOK PHOTOS
For this particular case, I have looked at the use of Facebook photos in general. I have only vaguely been able to identify how a court will see that type of use, and how others will see it (e.g. the OSP, people in general). That area of use is highly risky. BBC, as I used in an example, seems to have detected some of the risks involved.
One of the risk factors is that a court might see it differently, e.g. “if we allow that type of use we will allow all similar types of uses, in conflict with the general interests of 800 million Facebook users”.
A court may detect some additional issues, e.g. Right to Privacy and Right to Publicity issues. They may heavily count against a fair use, i.e. even if you have valid arguments supporting your case it will still be highly risky.
“Facebook photos” is a type of material a court easily can identify, i.e. a judge or a jury will already have some ideas about what Facebook photos are, and they will most likely apply those ideas.
For most people that idea will be about a “visual image before their inner eyes” of a photo gallery with family photos, “something to be shared with a few rather than the many”. If they don’t use Facebook themselves, they will most likely have family members using it.
I have partly tried to identify risk factors like that one.
I pointed out that BBC doesn’t seem to recognize YOUR idea, not THE idea. “They try hard in every case to contact copyright holders before using photos from social media”. They may use material without permission in exceptionable cases.
You had a much more general idea than that, where free use of material was protected by the hypothetical Fair Use doctrine we haven’t found yet. BBC is following the opposite idea, with unauthorized use as an exception rather than as the rule.
The use of “hypothetical” was because the U.S.C. 17 §107 is the version that has most clearly been identified. Your version is currently only supported by your own theories, not by any external reliable sources. I have backed up U.S.C. 17 §107 as the correct version by pointing to external sources and to search results.
And where did this ancient doctrine get codified
U.S.C. 17 §107
en.wikipedia.org/wiki/Copyright_Act_of_1976
If this is not satisfactory to you then I suggest you start with the writings of Herodotus, and then jump forward about 2000 years and read the Statute of Anne of 1709 and follow it forward until today.
en.wikipedia.org/wiki/Statute_of_Anne
No license fee. no cost. By right.
smashingmagazine.com/2011/06/14/understanding-copyright-and-licenses/#what-is-fair-use
Simple. See ya
That didn’t clarify much? 🙂
The problem is when people interpret it as a right, they will usually have the wrong types of ideas, e.g. they will use it to defend not-so-fair uses.
Your source points out that photos are copyrighted and will need the owners permission to be used. They’re not “Fair Use”.
Basically, your source supports my version more than your version, in that he points out several restrictions.
Here’s the rest of that Fair Use section you cited:
So basically he doesn’t tell us anything more about Fair Use than what we already knew. His statement about “legal right” isn’t new, it doesn’t add anything of importance.
I have analysed a few parts, but not all. Most of it seems to support my point of view about “tricky, gray area of the law”.
Hardly. That may be your wrong idea, its not mine. What gives you the temerity to guess what other people will do anyway. Speak for yourself. It it confuses you then say so, but it does not confuse me or the guy who wrote the article.
NOTICE to NORWAY. the owner’s permission is not required if it is Fair Use. Will you ever ever ever ever understand this. No one is going to go astray if they first obtain permission but is NOT always REQUIRED
That does seem to sum up your understanding of it.
Clarity comes with understanding. If you are unclear on this you probably don’t understand it.
It refutes your previous contention that the user had no rights. I wouldn’t expect you to place any importance to it, but it does not mean its not important.
I haven’t said the user doesn’t have any rights? You have probably interpreted something out of context with the rest of the post somewhere.
All your 4 most recent comments are focusing on my understanding of it. That’s how “True believers” usually will write, e.g. “You haven’t understood what the business is about!”.
Try to focus on the topic itself? The current topic should normally be the cited material from your source / other relevant material.
* I have added my viewpoints, directly referring to the source itself
* You have added your viewpoints on my viewpoints
* so I added my viewpoints on your methods
It will end up in a lengthy discussion if we continue like this, with a focus on the other person’s comments rather than on the topic itself.
[Off-topic, but deserved]
Clarity is more common for ignorance, e.g. when people don’t even know they don’t know. The feeling of clarity isn’t very reliable as an indicator for understanding.
“Penny auctions are highly profitable” was almost always expressed with a high degree of “clarity” in the last few months before ZeekRewards was shut down. The reality was quite different.
In short, if you look at examples from the reality you will probably find out that your clarity idea will fail more often than it will be right. Most often you will find people who have convinced themselves about something that isn’t really true.
You mean you don’t want to remember or acknowledge that you did. Just like you can’t acknowledge (or is it understand) that there has been a fair Use doctrine in Britain for hundreds of years and in the US since about 1840.
No incoventient truths for you. You prefer Blinders in Pink Mink and pickled herring.
Its really dishonest you know, but you could not care less about that I am sure. Its just not in you.
It serves me quite well. If not for you that’s too bad.
That’s a complete misuse of the word and the sentence does not even make sense in English. If someone substitutes the word clarity for the word confidence then clarity is lost.
Maybe you need to learn what the word means. It has nothing to do with ignorance: but hey if you want to claim smart means stupid and night means day and up is down then I guess that’s the way the world looks to you. For the rest of us clarity means “the quality of coherence and intelligibility”
@hoss
Here’s one random source describing Fair Use as an affirmative defense to copyright infringement – The IP Law blog” (probably from a lawfirm).
NOLINK://www.theiplawblog.com/2011/05/articles/copyright-law/fair-use-an-affirmative-defense-to-copyright-infringement/
I haven’t read that article, I only used it as an example to show that the words themselves may be rather unimportant. You can’t add too much meaning to either “legal right” or “legal defense”, they’re both expressions used primarily for communication purposes. They’re not exact definitions.
Since I haven’t read that article, I won’t use it as a “proof” to support my viewpoints either. It doesn’t really prove anything other than “expressions are not definitions”.
BTW, your source contained a lot of valuable information. Many people will probably find it useful, and that should normally be more important than “proving your case” ideas.
If its of interest I am glad. Yes fair use is an affirmative defense.
The statute is written such that fair use limits the owner’s right of use but practically speaking that is the same as the legislature granting permission or a right of use to another under specified conditions.
I suppose the defense’s reply would state that the defendant’s use was “permitted” under the terms of U.S.C. 17 § 107.
The unfettered right of use enjoyed by the copyright holder preceded the doctrine of fair use so the orientation is Copyright holder has rights and the fair user has permission but right by any other name is still a right.
There hasn’t been any disputes about that users can use certain types of material for certain purposes, without asking the copyright holder for permission.
There has been a dispute about “right versus defense”, about the IDEAS people have about rights. I have pointed out that people typically have the wrong types of ideas when they refer to “Fair Use” as a right.
A right is normally “something worth fighting for”, as most people probably will see it. But many of the so-called “fair uses” people try to defend are really not worth fighting for. I have pointed out that a court might see some “fair uses” quite differently.
You have argued ideas about rights. I have argued ideas about “tricky, gray area of law”, “a type of defense rather than a type of right”. I’m not talking about legal definitions there but about how people can use it in reality.
I don’t think that is a defense I have ever heard of before.
Dear Judge, I did not infringe on Faith Sloan’s copyrights when I published her picture because this is a “tricky, gray area of law.”
Do you really think that would be appropriate?
Usually defenses run along the line of I did not do it, or I had the right to do it.
Simple and brilliant at the same time. I am going to borrow this. Love reading your comments, Hoss.
Oh thanks. Sometimes its fun. Chip in anytime.
Those 2 statements are separated by a comma, with individual quotation marks for each argument. I have used both those arguments separated from each other in a few posts.
And I’m not referring to legal definitions, but to how other people have described it in some of the sources I looked at initially.
The problem with the use of the expression “legal right” isn’t about the legal definition, but about how people THINK. People might defend a right vigorously, even an imaginary one (a right they don’t really have in reality).
The use of Facebook photos may extend into other legal areas where “Fair Use” isn’t recognized as a right or a defense. That may ruin the whole defense strategy, even for the areas where “Fair Use” normally could have worked as a defense.
Fair Use is a defense to an allegation of copyright infringement. Check
Fair Use is a “tricky grey area” of the law.” Check
Check
People defend against what is alleged.
For example, if Ms. Smith alleges copyright infringement I defend by claiming Fair Use. If Smith alleges invasion of privacy I defend by claiming the invasion of privacy is justified because it substantively furthers one or more countervailing interests.
If Smith brings a Right of publicity claim, I argue that the use was transformative or the claim was beyond the statute of limitations or some such.
If you imagine you have a right, its safe to say that there is legal argument to support it and, providing you have the money, an attorney to argue it.
In the end the Court decides the “reality” not the opposing parties. Considering the uncertainty and the cost its little wonder that about 95 percent of pending lawsuits end in a pre-trial settlement.
“Facebook photos” is a tricky area. Not solely because of copyright laws, but because of the huge number of Facebook users who may have some private photos uploaded. It will be difficult to get all of them to accept “Fair Use” as a right.
Fair use is generally about “acceptable use”. People can probably accept SOME uses of SOME photos from social media without permission, but I seriously doubt they will accept some of the uses described under U.S.C. 17 §107 (e.g. to have their privately owned photos used for educational purposes, scientific research, news reports, criticism, parody, etc.).
The Fair use doctrine simply isn’t designed for that type of material. The legislators probably had other types of material in mind when they agreed on that exception.
Referring to “Fair Use rules” will generally be a tactical mistake for that type of material. Referring to it as a general right will make it worse. It may indicate a misuse of the rules rather than a fair use.
Note:
This post isn’t about legal logic. I have simply tried to look at what Facebook users can ACCEPT, i.e. whether they personally can accept having their privately owned photos used for those purposes mentioned in the Fair Use doctrine.
Most people probably won’t accept it as a general idea. There’s a few exceptions where people will or must accept that type of use, but those are exceptions. Photos showing some types of illegal activity are one of those exceptions.
If the Facebook user alleges copyright protection applies to their privately owned photos then they fall under the umbrella of fair use. They have to live with the logical consequences of taking that position….. and its not a bad one since the doctrine of fair use is mature, with statutory teeth and ample legal precedent.
Perhaps expanding the definition of copyright would shift the balance of power a bit in favor of the social media user. How about if just posting a picture of oneself entitled it to copyright protection?
The genie is out of the bottle here and that’s all I know. If someone posts their picture to social media its pretty darn close to putting it in the public domain the moment they hit Enter. That being the case granting automatic copyright protection would at least ensure there is a time tested method of determining what constitutes fair use of the photo and a method of determining infringement.
I don’t think the wheel has to be reinvented, but it could use some twerking.
@hoss
One dispute resolved. I have found an official document (from the Library of Congress / U.S. Copyright Office) showing that the Fair Use doctrine was adopted in U.S.C. 17 §107. Your external doctrine doesn’t exist.
NOLINK://www.copyright.gov/circs/circ21.pdf
Page 3, 4, etc. are about Fair Use, how it is, how it was and how it was implemented.
From page 4:
Since no external doctrine exist (it was based on case law before 1976), §107 can be identified as “one of the exceptions to copyright protection”, i.e. it must be interpreted in context with the other rules (rather than as some type of “exclusive right”).
That means that compensation for use CAN be part of “Fair Use” (since there’s no longer any unidentified doctrine supporting completely free use of ALL different types of “Fair Use”).
It means that a court can accept a payment offer as a valid defense argument (e.g. if a newspaper has used a photo found on the internet to illustrate a recent news event without asking for permission first).
No. What you conceived of as external to the Fair Use doctrine does not exist.
Two days ago you decided there was NO doctrine and now you have made up something you alone call the external doctrine. I said there was a Fair Use doctrine. Period.
I also said it was incorporated into the Copyright Law of 1976 which it was…. when it was given express statutory recognition.
From your Library of Congress citation:
I don’t know how it got to be mine because I don’t even know what it is.
A defense? A defense to what? If the newspaper pays for the photo and the copyright holder accepts the payment there is no cause of action. No defense is needed. There is nothing to adjudicate. Its settled.
While the criteria are “in no case definitive or determinative” none of the four standards mentions compensation. By reason alone it can be understood that acceptance of payment creates permission or a license for use, HOWEVER, nowhere in the four standards is licensing mentioned.
So is licensing Fair Use? No. Its licensing.
Fair Use and licensing are two different concepts that just happen to obtain similar outcomes in your example, and that is all.
I have used “external”, “hypothetical” and various other terms to identify the theories you had about a Fair Use doctrine, e.g. when you didn’t recognize U.S.C. 17 §107 as the real thing. I used that method to avoid confusion.
We used different types of logical reasoning, e.g. you used Merriam Webster to identify the definitions for doctrine, where I used multiple sources to see how they identified that specific doctrine. So we pointed to completely different sections of Wikipedia when we tried to identify the doctrine.
A discussion about “I said / you said” will be rather off-topic. The important part should normally be that we’re now talking about exactly the same rule.
EQUITABLE TYPE OF REASONING
I have identified that rule to use an equitable type of reasoning = a case-by-case logic rather than clear, statutory rules. It’s probably assisted by SOME relatively clear guidelines for how to interpret the doctrine.
“Equitable type of reasoning” will follow the law where a law can be identified. It will neither expand, reduce nor change the meaning of a law, but it will assist the law to become more fair and just when applied on a case-by-case basis.
Either you have hit your head or you are kidding me. I always recognized USC 17 for what it was and is…a statute penned in 1976 which includes standards which are “in no case definitive or determinative.”
You quoted the four standards and said they were the doctrine. They are NOT and the statute itself makes that clear if you read it and understood it rather than cut and paste parts to suit your misconceptions.
The doctrine has been evolving for about three centuries. It is still evolving.
You genuinely seem to think that Four tests are the doctrine itself but the Fair Use doctrine is an “equitable rule of reason, for which no generally applicable definition is possible.”
The four standards are to provide some “gauge for balancing the equities” BUT if you do not grasp the principals of the doctrine and just look at the text of the standards then you come up with ideas like payment of compensation is Fair Use. Pay for Use is not Fair Use.
I didn’t say the copyright owner had accepted the payment?
You apply your OWN ideas rather than reading statements as they are. Many of my comments are simply about needed corrections to your interpretations.
There’s no disputes about your logic there. If the copyright owner accepts the payment, there will be no cause of action.
I didn’t recognize any of those 3 quotes as mine?
You’re probably having a discussion with an external source, e.g. the “Reproduction of Copyrighted Works by Educators and Librarians” document. I won’t interfere with that type of discussion.
I asked you to look at a dictionary because you did not even know what a doctrine was. 2. You denied there was such a thing as the Fair Use Doctrine 3. and then invented something you called an external doctrine
I had to start someplace.
Well if he didn’t then your assertion that an unaccepted offer satisfies the four standards of Fair Use is even MORE spurious.
What happen if the copyright holder rejects the offer?
You’re talking about case law, how it has been interpreted by courts in various cases over the years?
I didn’t exclude that, but I didn’t include it either. I will normally not focus on rather obvious factors.
Back up that conclusion with some types of logical arguments?
SOME uses are clearly free, there’s no disputes about that. But that doesn’t mean ALL types of fair uses need to be completely free.
I’m using the “all sheeps are white” logical fallacy as explanation. We haven’t clearly identified that “Fair Use” always will be about a free use of the material. I’m still open for the possibility that some sheeps may be black or in any other color.
You have vaguely referred to “the principals of the doctrine” and to my lack of understanding, but you have failed to explain it yourself and/or back it up with reliable sources. “Lack of understanding” is much more closely related to vague ideas than to logical explanations.
I have at least added a logical explanation. Try to add one yourself?
It was that scenario I was talking about. The other one was rather obvious.
“I offered a fair compensation for the use, but the plaintiff didn’t accept it” is an argument that can be used to back up “Fair Use” (if the use itself was relatively fair, with no other major disputes about the use).
You can conclude your defense arguments with “This case isn’t really about copyright infringement but about size of compensation. This case should be dismissed or get a judgment about the amount, since there’s no real disputes about the facts”.
It can be used against people who are too eager to sue someone, and too little reasonable in negotiations.
Note:
I have used some different ideas than you all the time, e.g. I have looked how to use it in reality rather than trying to interprete the rules. The logic in this post isn’t perfect, but it was only meant as a quick example.
You have some rather weird ideas about fairness and fair use?
It looks like you have interpreted the rules as something from the Bible rather than as something to be used in daily life, as something to worship rather than as something written by people.
In daily life, payment for use is commonly accepted as “fair use”. Some free uses are accepted too. Contradictions to those two examples are accepted too, e.g. “first 3 months for free” offers. But I have never heard anyone claiming anything similar to “Pay for Use is not Fair Use”. 🙂
No waffling.
If I use your artwork in what I consider a transformative way and you challenge the use, and I offer you compensation and you reject my best and final offer for its use, where are we? What’s the next step.
If you want me to stop using the material or believe you are due compensation as the rights holder you must sue me for infringement.
If you sue me I am going to defend by saying that my transformative use is not an infringement on your copyright.
You will say it is. The court will decide using the four standards etc. If the court decides my use was transformative the law provides for exception to your copyright, and therefore by law I have not infringed and you have no right to compensation on your claim of infringement.
Should my use NOT qualify as transformative my use would not be Fair and you would be due compensation on your infringement claim.
The point being. If it is a transformative Fair Use I do not need to pay you for the limited use I made of your artwork.
@hoss
One problem in your example is that you’re specifying some conditions like “transformative work” etc., so you’re most likely talking about some truly fair use. You’re also highly hypothetical, e.g. you don’t even reflect your own opinions.
Compensation doesn’t need to be about money, but money often makes it easier to see a use as fair. A fair compensation offer in “Sloan v. BehindMLM” could have been “I can remove those offending photos AND remove that particular article”. It’s a type of “compensation” because she hasn’t complained about it initially.
The point is to make yourself look like a relatively reasonable guy, “just in case …”.
People do that all the time, e.g. Alvares and Marsal had something to offer, Greenberg Traurig had something to offer, Gordon Silver had something to offer – to reduce the chances of a costly dispute in the future.
You are wearying. Once again you are describing what is FAIR consideration for the USE of copyrighted material. In the law fair use has a specific legal meaning that only slightly overlaps the plain English meaning.
After this long I think its fair to say that you are unteachable.
(post #217)
I can accept that post as logical enough. Now we’re both missing to back up our respective conclusions with reliable sources.
—
Correct. Those 4 criteria don’t mention anything about compensation or free use. It’s mainly about other factors.
The test doesn’t EXCLUDE compensation, and it doesn’t SPECIFY anything about it either, i.e. it doesn’t specifically say that fair use always will be free use. That idea has been added by other people, you included.
Some educational purposes are really free, but some relatively similar purposes may require compensation (e.g. repeated use of the same material). Educational institutions will usually not need separate licenses for each individual author / artist, but they will usually need to report use to an organization where they have a general license.
There’s probably few problems with professional users (e.g. teachers). Professional users will usually know the rules “more or less” for their own types of uses. It can become a problem if they apply the same rules to other areas.
Why do you want to teach ME? Most people should probably focus on teaching THEMSELVES.
Example:
I haven’t shown much interest in some vague “principals of the doctrine”. You could at least have tought yourself to find some areas of interest before starting your “teaching campaign”. 🙂
I’m pretty sure there’s a lot of OTHER areas you could focus on where your teaching efforts would have made much more sense, e.g. “teach myself to avoid too much focus on details”.
Its intrinsic in the statute.
Nolo says.
Under the “fair use” rule of copyright law, an author may make limited use of another author’s work without asking permission.
Fair use is based on the belief that the public is entitled to FREELY use portions of copyrighted materials for purposes of commentary and criticism”
That proves nothing.
The test does not exclude animal sacrifice, and tailgating either.
But it also says “PORTIONS of material”. The Fair Use discussions have included photos “as they are” or as “heart of the work”.
The use of photos is the core issue in this case, the DMCA takedown notice. So we should have some focus on that part too, rather than citing general sources.
This website, written by a lawyer, specifies that Fair Use isn’t the same as Free Use:
NOLINK://www.socialmediaexaminer.com/copyright-fair-use-and-how-it-works-for-online-images/
Fair Use will only determine whether something is a copyright infringement or a legitimate use. Whether the use is free or need to be compensated should normally be determined on a case-by-case basis. There’s nothing in the law supporting that it always should be free.
Nolo.com may have had some specific uses in mind, rather than a holistic view. SOME uses are truly free, but some are clearly not. The use of photos is the area where free use can be rather controversial.
She is correct because FREE USE is when a copyright owner expressly makes his work available to others….for free.
Under Fair Use copyrighted material is freely useable because there is an exception to the copyright by law.
Express permission vs. operation of law. Check these sites out.
creativecommons.org/about
environmentandmedia.com/learning/websites-free-fair-use-media/
The subject was authorship of written material. Fair Use would allow the use of a portion or an excerpt from a novel for purposes of criticism, but not the entire book.
At some point a line is crossed between what is considered fair use and infringement. A portion is fine, all, probably not. Photos are different for obvious reasons. Posting an ear versus the whole face conveys a different meaning doesn’t it.
If you want shift to a specific case that’s fine, but the use of social media photos is an unsettled area of the law.
Lets maintain a differentiation between Free Use and freely useable (Fair Use) OK
I assume you agree.
Some commentators argue that even if a photo is copyright protected that placing it on Facebook constitutes implied but limited consent for certain types of use.
Though not quite Fair Use the effect is very close to the same since a court might plausibly find that the person has relinquished some rights both to how the photo is used and what privacy rights are accorded to it.
Its not a hard argument to make that Sloan uses photos on Facebook to promote herself. That is very close to putting them into the public domain (no copyright protection) and when doing so she is acting as a public figure not a private person.
Personally, I think the promotional nature of the postings opens her and her photos up for reuse parody, comment and criticism.
In any event this Sloan thing is hardly worth all this effort. Are the photos even still displayed on this site?
Take your pick
Fair Use = freely usable by user because the use meets four standard test and therefor is not an infringement of copyright.
Free Use = no cost to user due to express permission granted by copyright holder.
License = Payment by user for use of copyrighted material
Public Domain = Freely useable/Free to user
That is exactly what happens because whether a particular use meets the four point criteria and considered Fair Use is determined on a case by case basis.
If its non infringing Fair Use it is freely usable, thus there is no requirement or need to offer compsensation.
Fair Use doesn’t need to be about exactly those 4 factors, i.e. the doctrine has most likely evolved through case law since 1976. Digital photos is one of the new areas, internet is another.
It means I can look at Fair Use for photos and find some new uses where the Fair Use doctrine has evolved since 1976.
NOLINK://en.wikipedia.org/wiki/Category:Fair_use_images shows many different groups of images, with or without licenses, e.g. some images can come with a general license for fair use, some can come with a specific and limited fair use license, some are simply assumed to be fair for the specific use.
So a part of your theory is too onesided to be correct. Some fair uses are clearly based on licenses, the use wouldn’t have been fair if a license hadn’t existed. Example: The Parliament of Australia photos.
I haven’t found any proof for compensation yet. But you haven’t found any proof for the opposite either.
Hate to disappoint you Torbjorn but it says “Images in this category are claimed to be used as fair use under United States copyright law,” and that “the validity of fair use depends on the use.”
Use…. Not compensation. Use…. Not license.
“Fair use license” is a contradiction.
That “contradiction” is only a contradiction to your “all sheeps are white” fallacy. It doesn’t contradict the reality or §107.
I pointed to a specific group as example = Parliament of Australia.
Photos can be licensed for Fair Use, limited or general, by the copyright owner. Here’s 2 examples, one with a general license and another one with a very limited license:
1. Parliament of Australia, general license
NOLINK://en.wikipedia.org/wiki/File:JustinOByrne.jpg
2. Canadian stamps, very limited license
NOLINK://en.wikipedia.org/wiki/File:Canada_Millenium_Collection.jpg
This is NO License. None is needed.
A license is an official authorization to do something that the person would not be entitled to do without the license. Wikipedia does not need a license since use of the photo qualifies as fair use.
No doubt Wikipedia and other educational outlets appreciate AUSPIC’s willingness to issue a general permission to remove all doubt, but no permission is not required.
So limited I can’t find it.
It does not matter…..for similar reasons as above.
1. content can be used in articles only if: 1.Its usage would be considered fair use in United States copyright law and also complies with the Non-free content criteria;
2. It is used for a purpose that cannot be fulfilled by free material (text or images, existing or to be created); and
3. It has a valid rationale indicating why its usage would be considered fair use within Wikipedia policy and US law.
In other words the “limited license” which I could not find is superfluous since the use of the stamps qualifies for fair use under US copyright law anyway.
Your sinking Snaebjorn.
I believe you have focused on INDIVIDUAL licenses rather than general ones, e.g. you fail to see general permissions as “licenses”.
Photography doesn’t qualify as Fair Use in itself (e.g. “ALL photos can be used freely as Fair Use”). Certain types of uses for certain types of photos may qualify as Fair Use. “Certain types of photos” may include photos licensed for Fair Use via a general permission from the copyright owner (e.g. AUSPIC).
Copyright owners can clearly give general permissions for specific use of material, e.g. shareware licenses will allow certain types of distribution methods and copying among users / certain types of distributors.
Fair Use for educational purposes can simply be a specific general permission from the copyright owner. A license like that will typically extend the Fair Use to cover more than the 4 criteria.
U.S,C. 17 §107 doesn’t mention anything about general licenses, but it doesn’t EXCLUDE the use of general licenses either. So a general license will not be in conflict with the Fair Use doctrine, it will only be in conflict with certain ideas.
@ norway hoss
at 242 comments you deserve an ‘intervention’ :
fair use is a fairly simple gent
he means what he says, and said what he meant .
along came two rampantly curious minds
on fair use rules, they combatively opined
they wrestled thru ‘wiki’ ; tried hard to find –
secret ‘secrets’ of fair use ; of the ‘Eureka!’ kind.
they stomped and battled like samurai fine
i’ll chop off your head , or you chop off mine!
fair use skulked, feeling fairly stampeded
get off my back fellas ! he forlornly pleaded.
@Anjali,
Well said, but don’t be a square,
everyone knows that fair is what’s fair
but fair use, now that’s something different
its a legal term and that is significant.
Intervene as you will, we will soon be parted
but recall for a moment where this all started…………….
“Fair use”. I have no idea about the rules for that, but they should normally reflect what people in general will consider to be fair.” M_Norway
well said hossboss ! 🙂
a fresh intervention awaits you at post #500, unraveled road, bottomless abyss, circa nov, 2014.
You can’t license limitations and an exceptions. It’s like licensing donut holes. Funny….. but only because its absurd.
Of course you can have limitations in a license, e.g. allowing only a specific type of use. Most licenses have several limitations. Look at your own driver’s license? It’s most likely limited to certain types of vehicles.
A driver’s license can have limitations for total weight of a vehicle, certain types of vehicles (car v. motorcycle), automatic transmission only, use of glasses / contact lenses, etc., expiration / renewal year.
The absurdity is probably related to your own ideas, e.g. if you have applied some ideas directly without checking the realities.
Here’s some potential important information from copyright.gov:
NOLINK://copyright.gov/help/faq/faq-general.html#register
“Do I have to register with your office to be protected?”
Circular 1, Copyright basics, Copyright registration:
It means there’s a relatively low risk for that a private person will sue you for copyright infringement, e.g. those “additional steps” people can use after the initial DMCA takedown notice.
Yes its very feasible to grant a license with a limitation. Its common and done all the time, but that is not the same as pretending you can license fair use. That is an absurdity.
Fair use is a limitation and exception to a copyright. How can you license a limitation and exception to a copy right. You can’t. No way.
Don’t tell me about driver license restrictions. Tell me how you license fair use.
I should probably have added something about “rational people”, “well informed people” or something similar. “People in general” was probably a too general term, it will include several weird ideas.
This is why I mentioned the extremely low likelihood that Sloan had “copyrighted” her stuff. If she didn’t as I suggested, any infringement threats she makes have no teeth.
To me that was far more significant a consideration than a take down notice…. which is hardly more than a curiosity and inconvenience compared to a lawsuit.
No, what you should have added was that fair use has a specific legal meaning that only slightly overlaps the plain English meaning of the words. Fair Use is NOT about fairness in the common sense of what is equitable between individuals, which I am pretty certain is what YOU think it means but it doesn’t.
Fair use is a limit and exception to copyrights and it has almost nothing to do what seems fair between individual copyright holders and users. Understand the doctrine and it will make sense.
You don’t license the limitation, but a limited extension to the Fair Use, e.g. the use of a whole portrait photo (rather than a small proportion of it) for certain types of uses.
If the normal Fair Use is one chapter of a book for educational purposes (e.g. a class set), there’s nothing wrong if the copyright owner will allow two chapters to be used rather than one, but that extension can have some limitations.
People don’t need to follow the law EXACTLY as it has been written. It’s more than enough if they act “within the law” / “not in conflict with the law”.
Most of your ideas seem to be too heavily focused on “law interpretations” rather than on the reality. You have failed to see that a copyright owner legally can allow specific types of uses even when those uses are not specifically covered by the law.
Try to describe it DIRECTLY, e.g. “Fair Use has a specific legal meaning” plus what that specific legal meaning is about, rather than INDIRECTLY “You should have stated”?
There’s no disputes about the overlaps, so the comment didn’t make much sense.
Explain it yourself? I have looked at both Merriam Webster definitions and Wikipedia definitions, but I haven’t detected those “specific legal meanings”.
Here’s the Wikipedia description:
* “Rules that can be applied to similar cases” is one possible interpretation, but not the only one. That interpretation will require SOME similarities between the cases. It may accept extended licenses.
* “Rules that should be applied to all similar cases” is another interpretation. It used the terms “should” and “all cases”. It will not accept any extended licenses, because options like that are not mentioned in the criteria.
In the first example, the 4 criteria will be “guidelines”. They will need to be tested for relevance before they can be applied. In the second example, the 4 criteria are meant to be followed in every case, rather than being tested for relevance.
You’re not going to find the specific legal meaning of fair use by looking up the word “doctrine” in an online dictionary. Understanding what a doctrine is, is a good start but it only takes you part way. The goal is to understand the doctrine of fair use which should lead to an understanding of the specific legal meaning of fair use.
I provided you several succinct statements of the fair use doctrine which you rejected because they were not “official” and also the Wikipedia list of doctrines (including fair use) which you rejected because it pointed to a page containing USC 17. On that basis you inexplicably concluded that there was no such thing as a fair use doctrine.
The Wikipedia Fair Use page tells you what the doctrine is, and it tells you the specific legal meaning of fair use and yet you fail to recognize it. I have no explanation for that.
Per U.S.C. 17 §107 “The four standards provide guidance in determining if a use is considered fair under the law.”
As you have noted, the standards do not EXCLUDE offers to compensate, or licensing, but neither do they consider them determinative.
They are extraneous and immaterial.
Arguing that an offer to compensate is a defense to allegations of infringement is nuts if you are trying to invoke fair use. Fair use is not determined by compensation.
Suppose there was a fair use animal. There are four standards that provide guidance in determining if an animal is considered a fair use animal. Here is what a fair use animal is like.
1.Blue
2.Furry
3.Stinky
4.Many legs
Horns(compensation) are not EXCLUDED in the standards but the determination of whether the animal is a fair use animal is made on the basis of its blueness, furriness, stinkyness, and legginess…and horniness, even if it was present does not matter.
DR.SUESS
The explain it directly rather than telling how important it is to understand it?
An explanation will normally start with “The legal doctrine of Fair Use is about …”, followed by some arguments to support the conclusion for what it is about / how it is meant to be interpreted.
I have most likely accepted every source you have identified clearly. “Official sources” is probably about the “reliable sources” I mentioned in post #229?
Here’s one of your “succinct statements” (post #156):
* “they were not rendered exclusive”
* “Courts are still entitled to consider other factors as well”
The problem is that some of your “succinct statements” will support my version more than they will support your version.
“Provide guidance” is normally about guidelines, as opposed to “exact rules to follow”. It will require that each of the 4 criteria must be tested for relevance before they can be applied (e.g. the third criterion may be irrelevant for portrait photos). It also means that additional factors can be evaluated as a part of Fair Use.
“Extraneous and immaterial” are conclusions without any supporting logical arguments. If you want to point out some incorrect parts you will need to be more specific than that.
The dispute here seems to be about how to interpret a law text when something isn’t specifically mentioned.
* “The law doesn’t EXCLUDE it”
* “The law doesn’t INCLUDE it”
That part indicates that you have interpreted the 4 criteria as “rules to follow” rather than as “guidelines”. You will look at EXACTLY those 4 criteria, “nothing more and nothing less”.
I have interpreted them as guidelines = they will provide guidance to a court for how to determine whether a specific use is Fair Use or a copyright infringement, but they will not restrict the court from looking at additional factors.
The four standards are always relevant. 300 years of doctrinal development and inclusion in the 1976 statute attests to that.
There is flexibility, and other factors may be considered but after 300 years of development don’t you think an offer of compensation would be the only remaining standard for determining fair use since its easy to prove and disposes of the issue without further consideration.
I offered to pay compensation…Boom…its fair use….next case. No “tricky grey area” there.
Your assertion that an offer of payment is a valid defense against copyright infringement is completely implausible.
Offering fair compensation may be proof of good faith bargaining but it is not proof of fair use.
Its very easy. Its extraneous and irrelevant unless the judge decides otherwise.
Those 300 years are the timeline for Fair Use, but not for those 4 criteria. So that logic was flawed.
I used general licenses for Fair Use, similar to Wikipedia’s license from the Parliament of Australia, as example for “additional factors a court can look at”.
I haven’t found any relevant examples for compensation as a part of Fair Use yet (cases like that will most likely be resolved outside court). It will be much easier if we focus on identifiable examples rather than hypothetical ones.
It looks like you still believe in the “10 commandments” theory, where laws were meant to be interpreted like “Words of God”, like “written rules people should try to live up to”, or like some type of Sharia Law.
Your logic incorrectly goes like this:
1. Fair Use has been recognized for 300 years (since 1709)
2. Those 4 criteria have been central parts of Fair Use (since 1976).
3. Those 4 criteria have existed for more than 300 years (since 1709).
The quote in post #156:
As far as I can see, that quote will support my “guidelines” version more than it will support your “rules to follow” version.
The four standards were derived from legal tradition and doctrine of the previous 300 years. They were not simply made up without reference to the past.
There was no license. It was a permission. As I already mentioned a license is issued when the user has no right without it. You have no right to drive on the roadways without a license.
On the other hand Wikipedia and other educational entities have the right to use the Parliament’s photos under fair use. The general permission merely confirms this is true and removes all doubt.
More to the point is that you have not provided any convincing evidence that a license is a qualifying feature of fair use. Fair use does not require the copyright holder’s permission even if as in the case of Australia, its given.
Finally, I can not imagine why one would ask a judge to consider a license as an “additional factor.” If one has a license one does not need to need additional factors One just publishes based on the rights conferred by the license. Its not a fair use issue.
If they resolve out of court then they are settlements and that is not a finding for or against fair use. Keep looking. I love surprises.
The actual four factors are what the court considers not the Dr. Seuss version…. but even in such a simplified example the opposing parties would surely argue over whether the animal is ACTUALLY blue or green or blue-green or fuzzy or furry so there is no exactitude involved. The factors in the statute are a framework for comparison.
However, nowhere in the statutory four point framework is their any mention of compensation as a factor, nor does the extended discussion of the factors in Wiki lead one to believe that compensation is a factor either.
Nothing stops a party from asking for consideration but it does not mean the “proofs” have any merit.
Ask a judge to consider compensation, and if the judge thinks it applies then ok, but how you can believe a rejected offer proves anything other than there has been no meeting of minds is beyond me. Making an offer might be fair something but it has nothing to do with fair use.
That you think so is an indication that you do still do not understand what fair use is.
You can think of them as standards, rules, factors, guidelines or however you want. The point is, that if your only affirmative defense is that you offered compensation, you will be laughed out of court.
….Why? Because you will not have addressed even a single one of the four factors.
I pointed out that the third one would be rather irrelevant for portrait photos. Using 10% or 20% of a portrait photo will be a rather meaningless idea.
I believe it’s time to terminate the discussion about copyright, since it doesn’t seem to produce any meaningful additional information. The discussion has gradually become more vague and more hypothetical. Post #248 seems to be the last post where any additional information has been added (it contained some external info from copyright.gov).
COPYRIGHT FOR PHOTOS
“Tricky, grey area of the law” is a proper description when it comes to use of photos found on the internet versus “Fair Use”. The area is tricky both for the copyright owners and for the ones using photos.
* Professional photos are clearly copyrighted, e.g. it’s possible to find many relevant copyright infringement cases for press photos, stock photos and other professional photos. “Fair Use” failed as a defense in the few cases I looked at.
* Privately owned photos are more difficult to identify as copyrighted. Relevant cases may be about other factors than copyright, e.g. Privacy rights and Right to Publicity. It’s difficult to find relevant cases. “Fair Use” will most likely fail as a defense.
* Professional users, e.g. newspapers, will generally carefully try to avoid unauthorized use of photos found on social media like Facebook or Twitter.
I can’t tell if you are arguing for the plaintiff’s or the user. Do you know?
A plausible fair use defense would, at the very least, address each of the four factors, not just “the third.”
Wiki suggests “that courts have begun to emphasize the first fair use factor—assessing whether the alleged infringement has TRANSFORMATIVE use”
The third criterion:
I pointed out that it wouldn’t make much sense applying that criterion to a portrait photo. You seem to believe otherwise, and that’s why I decided to terminate the discussion. It had gradually become more hypothetical and vague for a period of time.
Post #248 seems to be the last post where something new was added from external sources. After that, it looks like we have been making “comments about comments”, not bringing in anything new.
It won’t make much sense applying that third criterion to a portrait photo because of “the nature of the original material”. It’s possible to find some hypothetical uses where it may make some sense, but you can count me in on a discussion about that.
You have to “apply” it. If you believe the use insubstantial in relationship to the whole then you must assert it. Fair use is an AFFIRMATIVE defense. You have say something.
Pointing “out that it wouldn’t make much sense applying that criterion” to the very criterion that supports a finding of fair use is to say the least, baffling.
Only if you don’t use common sense, and are blindly following rules. That’s why I specified a specific TYPE of photo and a specific criterion, and why I excluded some hypothetical uses.
“BASIC RULES”
Legal logic will normally have some “basic rules” people should use to avoid meaningless conclusions.
* One of them is to identify the facts clearly before trying to identify any legal sources (e.g. a law text).
* Another basic rule is to identify the relevance of the legal sources (you should normally use more than one source).
* A third basic rule is to identify the individual “weight” of the legal sources, “which source is most important?”.
* Some additional rules about how to interpret legal sources.
* Some additional rules about how to handle conflicts between different legal sources, “which rule is most important / have the highest rank?” (e.g. Lex superior, Lex specialis, Lex posterior).
Without that framework of basic rules, interpretations of laws and the legal conclusions derived from that interpretation will most likely become rather meaningless. I believe that has happened here, so I decided to terminate the discussion.
“Facts before legal sources”
Even if I only mentioned portrait photos in general terms without specifying anything, you should normally have identified the realities first before trying to apply any rules. You must have a relevant reality before it can make any sense to identify and interpret any legal sources and extract any legal conclusion.
The third criterion will be rather irrelevant for the most typical uses of a portrait photo, but you will probably be able to find some uses where 10% or 20% use of the original can make some sense in a highly transformative work.
To make any sense, you will need to specify that type of use clearly before you can be able to identify any relevant legal sources (laws, etc.), before you can interpret the legal sources correctly and extract a “rule of law” from those sources.
Let’s try again. In the simplest terms you can muster…how, given any set of facts you care to use, do you assert the affirmative defense of fair use against an allegation of copyright infringement.
Do you think that’s funny? I think that’s funny.
The answer is plain and simple = I’m not using the same ideas as you do. There’s some logical flaws in the methods you use, and I will probably manage better if I avoid adopting the same ideas.
* You tried to identify the rules first, without any facts.
* Then you asked questions about how to use those rules.
I will work from the opposite direction.
* Identify the facts first.
* Then identify relevant legal sources.
* Then try to identify some rules for how to interpret sources.
* Then try to identify the most rational interpretation.
* Then apply the “rule of law” to the facts.
If we look at your method (“any given set of facts you care to use”), it will allow me to introduce a complete irrelevant set of facts, and then point out that it won’t make any sense trying to use the Fair Use defense against copyright infringement allegations. Some plain and simple logic will work much better.
My set of facts:
I have made a digital copy from a music CD I have legally bought, to be able to play the music on my computer (private use only).
The allegations:
“Copyright infringement! You have made an unauthorized copy of the music”.
It won’t make any sense trying the Fair Use defense against that type of allegation. That type of use is perfectly legitimate anyway. The copyright will only cover the music itself, not the medium used to deliver the music.
I won’t need to pay for the same music multiple times to be able to play it on multiple devices for my own private use. I cannot legally sell those copies I make, but I can legally make those copies and use them for my own private use (as long as I have the original copy).
I used an example very similar to some Fair Use exceptions, but I could have used a complete irrelevant set of facts. Your method doesn’t have any rules in place to prevent the legal logic from becoming irrelevant and meaningless.
Most of those basic rules came from this source (Norwegian):
NOLINK://paragraf1.cappelendamm.no/c165513/sammendrag/vis.html?tid=205854
Translated:
NOLINK://translate.google.com/translate?sl=no&tl=en&js=y&prev=_t&hl=no&ie=UTF-8&u=http%3A%2F%2Fparagraf1.cappelendamm.no%2Fc165513%2Fsammendrag%2Fvis.html%3Ftid%3D205854&edit-text=
It’s a summary of some legal logic, e.g. how to interpret laws. It has some translation issues, but I haven’t found any replacements yet.
It certainly won’t, but I asked you how you would assert an affirmative defense of fair use. To do that you need to select a set of conditions that will permit you to answer the question.
Why not use facts similar to the partial photo portrait you have mentioned several times. Pretend that you are blogger who used the photo in a news article and the person in the picture alleged copyright infringement. How would you assert a fair use defense to that?
So use your own ideas. Share.
How about this time you select relevant facts. That would be more meaningful wouldn’t it. Can you do that?
I did select a set of facts that would permit me to answer the question (I could have selected ANY set). You did get a complete relevant answer to your question.
You can’t expect the realities to change to better match your interpretation of a law. You must identify the realities correctly first.
In my case, the realities were just like I described them = I made a digital copy of a music CD so I could be able to play the music on some other playback devices. It can be interpreted as some type of Fair Use, but it won’t make much sense applying those 4 criteria.
“Select relevant facts”? Normally it would be much easier if you could select relevant rules.
It will be highly controversial for a court to ask a party to select more relevant facts, e.g. “Your facts don’t match this court’s favorite law interpretation. Can you please select a more relevant set of facts?”.
OK then use these
OK, then how would you assert a fair use defense if you had used 10% or 20% of a person’s portrait photo on your personal blog and the person alleged infringement.
Your example is too vaguely described and too hypothetical. Copyright infringement isn’t solely about the amount of the original used in the new work.
The example I used should be relevant enough. It involved copying some copyrighted work of art (music) without authorisation from the copyright owner.
* It wouldn’t have made any difference if I only had copied 20% of the original material, e.g. if I had copied 2 out of 10 tracks of the CD.
* It would have made a difference if I had distributed the copied material to other people outside my own family. But I specified the personal use.
* It could have made a difference if I had transformed the original (the copied part) into a new commercial product, and had distributed that new product to other people. But I specified the personal use.
The factual part is the core of a case. You will need to identify that part first before you can identify any rules. You can’t assume that §107 Fair Use will be the proper rule in every case. It clearly isn’t.
So if its not solely about the amount of the original used in a new work what else IS it about?
OK., You have chosen the “facts” that we shall use. Since you indicate you had no authorization how would you defend against an allegation of infringement?
It’s primarily about the potential negative effect a copied work may have on the original author’s commercial interests and rights, e.g. if the copied work may substitute or supersede the original, or the copied work extend into other commercial areas where the copyright owner normally should have the rights (e.g. a transformed product, based primarily on the original’s artistic ideas).
That last sentence became a little “constructed”, but you will find a couple of relevant examples in “Food Chain Barbie” and “String of Puppies”.
NOLINK://en.wikipedia.org/wiki/Fair_use#Purpose_and_character
I gave the most relevant description I could find. It wouldn’t have changed anything if I had copied a DVD movie for personal use.
How I would defend against allegations of infringement?
I will normally not use any “well prepared defense strategies”, e.g. using the same strategy over and over again. I described a potential defense strategy in post #7.
I will not carefully study rules. I will try to see it from the opponent’s point of view. I will use a lot of other methods and knowledge.
Very cool. Yeah So the idea is just to chillax, check the facts make a decision.
So lets say you are totally chill, razor sharp on the facts and are ready to decide (or lose your case by default) The question remains . How do you defend your unauthorized use of copyrighted material?
The answer is simply that I normally will handle a situation “as it is”. I will NOT carefully “construct” multiple hypothetical defense strategies “just in case someone want to sue me for something”.
STATUTORY INTERPRETATION
Here’s one source for interpretation of laws. There’s multiple choices of interpretation, but there’s also some basic rules to follow.
NOLINK://en.wikipedia.org/wiki/Statutory_interpretation
“Laws are not meant to be interpreted into absurdity” is one basic rule. That argument can probably be useful from time to time, e.g. to prevent a discussion from becoming too detailed. 🙂
I will usually not read stuff like that (legal theories), other than a quick overview for communication purposes.
You are a fraud.
Update: Having received no reply to our counter-notification, I’ll be moving BehindMLM back to its regular hosting this weekend.
I consider the matter closed and don’t anticipate any foreseeable further downtime (within the context of this matter).
You will find relevant examples of defense strategies all over the place, but I don’t carefully plan them. I’m not a chess player, i.e. carefully calculating every possible moves before I decide to do something.
As a general strategy, I will typically focus on the realities of a case rather than on the rule of law. And I will test multiple perspectives rather than a single one (that is being reflected in many posts, e.g. post #211).
The case described simply doesn’t NEED any defense strategy. Copying legally bought music for personal use has been accepted for decades. There has been some disputes when new technology have been introduced, but courts have always ruled in favor of what’s commonly accepted as fair use (or copyright holders have backed out of the fight before it has ended up in court).
You can’t expect to receive it either. Any potential next step from Faith Sloan will need to go through court (unless you put the material up again for a new DMCA takedown notice).
“Potential next steps” were described in post #86, based on the Norwegian copyright law (most copyright laws are based on international treaties, so they have relatively similar rules).
The process goes like this:
* Takedown notice –> ISP or OSP
* Takedown notice forwarded to you
* Your response to the ISP or OSP
* Your response forwarded back to Faith Sloan
* Potential next steps from any one of you = court or direct negotiations
The takedown notice itself will require access to the disputed material to be removed “expeditiously” (normally within 24-48-72 hours). It means you can voluntarily remove the material temporarily until the dispute has been resolved, or your ISP / OSP can block access to it (block access to the whole website).
A counter notice will require similar formalities as the takedown notice = identifying the material, “good faith” statement, “penalty of perjury” statement, name and signature.
It should also identify if and when you have removed the material, and if you want to dispute the ownership / right to use the material (or if you want to dispute the accuracy of the complaint).
A dispute about the ownership / right to use the material can be negotiated outside court, or it can be resolved through a court. The dispute will need to be resolved before you can put the material back up again.
If you put the material back up again, it may lead to a repeated DMCA takedown notice or an injunction from a court. It’s still an unresolved dispute, unless you both have agreed on something about the use.
That is the reply.
I’m being polite. Please read up on the DMCA process. It serves a specific purpose which has now run its course.
There’s nothing stopping anyone from filing a copyright lawsuit with or without a DMCA notice. Future DMCA notices regarding the same images will now be ignored as the host provider have followed the required procedure as they see fit (ie. they now hold no liability for the images in question).
Its a new world Bobo. You now have to contend with first sale rights, exclusive/limited licenses, distribution rights and a thousand other legal and fact based variations.
The RIAA (Recording Industry Association of America) says if you want a copy…. then buy a copy.
So according to the copyright holders represented by the RIAA, their worldwide counterparts and licensees, your “personal use” copying is an infringement.
You have blithely asserted that copying for personal use is “some type of fair use.” So be it. How, in this case would you assert the fair use defense?
By the way you have had time to relax. The facts are not in dispute (you admit you copied and the RIAA say you infringed) The RIAA is unwilling to settle (they want to make an example of you) and substantial damages are sought.
You only have one day to shape your fair use case. Can you do it?
You mean the OCILLA (Online Copyright Infringement Liability Limitation Act)? I had a quick look at it initially, a type of “quick overview”.
NOLINK://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act
The counter notice will protect the ISP/OSP from liability when putting the disputed material back up again after 10 business days. It can not put the disputed material back up again if it receives notice about a legal action.
It doesn’t resolve the dispute, as far as I can see.
It will provide 2 “safe harbours” to protect the OSP against lawsuits from the copyright owner / the user of the material. Any next steps from the copyright owner (to more permanently remove the material) will need to go through a court.
University of Texas (one of the references in Wikipedia/OCILLA), “Responding to Notices of Alleged Infringement”:
NOLINK://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act#Using_OCILLA
Counter-notices from page owners must contain the following:
POTENTIAL IMPORTANT INFORMATION (Wikipedia)
If the disputed material has been removed, most copyright owners will probably accept that as a solution. Any “next steps” will be more costly and risky.
NEXT STEPS
* Subpoena to the OSP, demanding to reveal the identity of the infringer (§512h)
* Injunctions, compelling the OSP, in appropriate situations, to stop providing access to infringing material or to terminate the account of a particular infringer. (512j)
The Norwegian copyright law listed a few more steps of that process, but otherwise the rules are relatively similar.
No I mean DMCA.
A DMCA notification is not a dispute, it’s a mechanism by which content hosters absolve any responsibility for hosting allegedly copyrighted material.
With or without a DMCA notification, the only way to begin a dispute is to file a lawsuit.
A DMCA notice != lawsuit. It is not a dispute.
Again, you don’t need to file a DMCA notice if you wish to file a copyright lawsuit.
There’s a couple of things …
1. Unknown owner of the website (unknown defendant).
2. Foreign owner (lack of personal jurisdiction).
3. Missing statements in the counter notice.
A DMCA counter-notification does not reveal the owner of a website.
A DMCA counter-notification has no bearing on jurisdiction, specifically when it comes to enforcement.
A DMCA counter-notifications states the material was identified in error and why. That’s it.
I really think we need to stop applying Norwegian and whatever else country’s laws to this discussion. They mean SFA.
U.S.C. 17 §512 (g)(3)
NOLINK://www.law.cornell.edu/uscode/text/17/512
An ISP/OSP will normally accept some missing details, and just forward the counter notice directly to the copyright owner.
I used the Norwegian copyright law initially to identify the context of the rules, e.g. when I didn’t find anything about privately owned photos in U.S. laws.
The links to OCILLA are about U.S. copyright law / DMCA takedowns. Wikipedia OCILLA provided much more details about the process than Wikipedia DMCA, but they’re both about the same thing (Section 512 in the Copyright Act).
The link in this post goes directly to cornell.edu law project U.S.C. 17 §512. The quote is about §512(g)(3), “Contents of counter notifications”.
You misinterpreted all those 3 points. It was a direct response to your statement about “There’s nothing stopping anyone from filing a copyright lawsuit with or without a DMCA notice”.
A lawsuit must have an identifiable defendant / identifiable address to serve the lawsuit. That should be rather obvious.
There’s also a 4th point (that may prevent a lawsuit):
4. To file a copyright lawsuit before a U.S. court, the material will need to be registered at the U.S. Copyright Office (according to copyright.gov – Circular 1 “Copyright basics” – “Copyright registration”). Cited in post #248.
To clarify something …
DMCA Title II = OCILLA (not literally speaking, but as relevant source of information for DMCA takedown procedures).
NOLINK://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act#Title_II:_Online_Copyright_Infringement_Liability_Limitation_Act
U.S.C. 17 §512 = DMCA Title II (not literally speaking, but to avoid confusion about those different sources)
In that case, I would have asked a lawyer for a quick update, e.g. to check that I haven’t misinterpreted something, before making any decisions about how to handle the situation.
I prefer to use external knowledge (I don’t have any expertise myself). That type of opponent has much more experience and more resources than me, so I will need to adjust my own strategy to the new situation. That’s relatively easy when you haven’t carefully planned anything from the beginning, and rapidly can accept changes.
That’s basically how it goes. “Analyse the situation (quick overview), and make some necessary adjustments”. Repeat when necessary (“make many small decisions”).
You have got 3 or 4 answers to the hypothetical question about how I will handle a potential copyright infringement lawsuit. That’s probably enough? You won’t get any legal strategy from me, i.e. I will not carefully study laws to find solutions, I will rather try to “bring the problem into my own field of expertise”.
No you don’t. You know how to cut and paste and that’s about all.
I don’t see any problem in that? “I don’t have that knowledge myself, so I will need to use some external sources of knowledge” is actually how most professionals will do their job. They will know the limitations of their own knowledge and skills, and use external resources when needed.
[Context]
It was part of a hypothetical answer to a hypothetical question, but I tried to identify some of the factors anyway. I analysed the type of opponent (RIAA), e.g. for experience and resources.
Since my ideas were rather vague, the wisest decision would be to use some external knowledge BEFORE making any other decisions.
If you analyse the idea “digital copy of a legally bought music CD, for personal use, etc.”, you will find that the idea itself is rather vague. I can have misguided myself completely. I will need external help to either get rid of that idea or to add more substance to it.
If RIAA has found any weaknesses in that idea (enough weaknesses to file a lawsuit), I’ll need to know which weaknesses to be able to do something to change it.
cut and paste.
….was to cut and paste
…..so I will cut and paste.
….so I will cut and paste.
…People have tried to help you but you just cut and paste, cut and paste. Listen sometimes.
I have no idea what you’re talking about there. If you have problem with one of my sources, point it out directly?
“I don’t have any expertise myself” simply means that I neither have specialised education nor specialised experience in any relevant area, that I will use other other people’s knowledge most of the time when looking into new areas.
DMCA takedown notifications and counter notifications are formal legal procedures, “initial steps” in legal actions regulated by a law. People are expected to use some legal assistance before sending them, but they’re not REQUIRED to do so (templates can be enough “legal assistance”, and experience can easily replace the use of templates).
You puposefully miss the point. The source materials are fine. Your understanding of what is meant by and contained in them is not.
None of the sources ever said or implied that an offer of compensation was a fair use defense, or that the Australian Parliament issued a license, or that there was no such thing a fair use doctrine, or there was an “external doctrine” or that fair use was about what was fair and acceptable to the copyright holder. The source for those gems of illogic came from your own skull.
You cut and pasted USC 17 107 and yet you still have no clue what a fair use defense looks like or apparently what the four factors have to do with it. Cutting and pasting is fine. Mindless cutting and pasting is just mindless cutting and pasting which by all appearances is all you have been doing.
Try to communicate it directly rather than indirectly?
Directly = “Fair Use is about …”.
Indirectly = “You don’t understand what Fair Use is about”.
Directly = “I interpret that source to be about …”.
Indirectly = “You didn’t understand that source”.
I did that. You’re too crosswired to understand any explanation except your own. Your deaf.
Directly = point directly to that post
Indirectly = refer to your own ideas, e.g what you believe I believe, “You said …”, “according to you …”, etc.
I have already clarified that long time ago. I didn’t find any relevant cases to support that theory, but cases like that would most likely have been settled outside court anyway.
But I also specified a specific use = when a copyright owner is too eager to sue someone, and is too unreasonable in a negotiation, and I specified how to use it and the conditions.
I can clarify it further. Normally you can’t use laws as EXCUSES for doing something you normally shouldn’t have done, or as EXCUSES for not doing something you normally should have done. That interpretation will make the law become rather meaningless, and will be in conflict with the “Absurdity” rule.
Photos found on the internet and used in recent news stories CAN be Fair Use (in the meaning of “not copyright infringement”), e.g. unlike the Haitian earthquake photos used by several press agencies and newspapers (Morel v. AFP).
But those photos would normally have required compensation to the photographer (he was a professional press photographer, doing it as a self employed job).
Fair Use can’t be used to deprive others for rights they legally have, e.g. the right to be compensated for use of material.
—–
Please focus on some more recent comments? And point directly to the post rather than indirectly mention it? The general idea should normally be to focus on the topic itself rather than on other people’s comments.
@hoss
You can probably add some viewpoints to post #287. My opinion there was “the dispute hasn’t been resolved”, i.e. that the dispute should be resolved first before Oz can put the material back up again (if he has previously removed it temporarily).
The takedown notification / counter notification will only protect the ISP/OSP from lawsuits. The copyright owner and the user of the material will need to find their own resolutions to the use of the disputed material, out-of-court or in-a-court.
One of the intentions with OCILLA –> DMCA Title II –> Copyright Act §512 was to remove minor disputes about “technicalities of the law” from court / allowing the parties to resolve the disputes themselves (quoted in post #287):
There’s many other areas where you reasonably can add viewpoints to more recent posts. I only gave one example, one that potentially can have been poorly explained.
When something already has been discussed for 50-100 posts without any conclusion, then further discussion will be rather fruitless. It will be better to post independent “summaries” and terminate the discussion.
That’s because that theory is logically incompatible.
Anyone making the argument that an offer of compensation proved fair use would not have the sense to settle outside of court.
Of course it can, but generally in modest and circumscribed ways.
Fair use provides a LIMITED exception to the copyholder’s rights.
Educators, commentators, artists, news outlets bloggers, we believe, provide a beneficial service to the public. Thus by law, they are permitted limited use of copyrighted material providing they qualify under the four factors test.
The fair use doctrine balances private and public interests. It does not permit wholesale copying and redistribution of an author’s work because that would almost certainly cause the owner an economic harm and that is not fair, but it does permit limited use…a fair use….which permits limited use which balances the interests of the public and the copyright holder.
I have said this before but it bears repeating. If a user pays compensation he is purchasing a license. If one is entitled to use per license, there is no need to claim the right to use under fair use at the same time. Its one or the other.
I disagree with your conclusion. Its Oz’s call on whether the material is used. Sloan farted into the wind, The ISP fulfilled its obligations and is now relieved of liability. That’s all that has happened.
@hoss
I have a solution to that other problem too, discussions about something that already have been discussed 100 posts earlier.
If you want to discuss something like that, try to “limit the scope” to some core ideas or statements, rather than to many details.
Example:
“My idea of Fair Use in §107 is that it is free use (no compensation required), and freely use (no permissions required). That idea is based on …” (build up your OWN theory too).
None of us should be interested in having to find something that was posted 100 posts earlier, and having to interpret the context where it was posted. Discussions like that will usually lead to multiple corrections over multiple posts.
I’m not interested in that, it’s simply too time consuming and too fruitless.
OK, I have already told why compensation is extraneous to fair use about ten different ways. Payment creates a license. Proving fair use and licensed use at the same time is redundant, unnecessary nonsense.
You have provided zero substantiation that compensation is required. Make your case but for heaven’ sake do not say there’s because it is not mentioned in the statutes. That’s illogical hogcock.
You mean the dispute about the use of the photos has been resolved by that counter notification?
The CORE of the dispute is the use of privately owned photos, used in an investigative news article, plus one or more photos used in other articles (typically about the TelexFree court case).
The DMCA takedown notification and the counter notification are both formal legal steps = they’re specified in the Copyright Act §512 and are authorized by the same law.
I have interpreted those legal steps as “initial steps” = they may resolve a minor dispute out-of-court, or they may lead to other legal actions if the parties fail to resolve the dispute outside court.
A counter notification won’t resolve the dispute in itself, it isn’t that type of legal step. It will offer a “safe harbour” to the ISP/OSP, preventing it from being sued for damages by the user of the material, by allowing it to re-enable access to the website after 10 business days.
FROM MY POINT OF VIEW
From my POV, the dispute should normally have been resolved before the material can be put up again by the user of the material. The “safe harbour” is reserved for the ISP/OSP, the counter notification doesn’t offer any “safe harbour” to the alleged copyright infringer.
If the material has been temporarily removed for a couple of weeks, putting it back up again when the use still is disputed may actually weaken a “Fair Use” defense (the removal can be interpreted as an “acceptable result” by the copyright owner, as a “no need to proceed with further legal steps” situation). Putting the material back upp again may re-enable the dispute.
“A SKILLED LAWYER”
* A skilled lawyer can point to “flawed counter notification”, and use that argument in favor of his client.
* A skilled lawyer can point to the fact that the material was temporarily removed for 2 weeks. Putting it back up again will not be an “accidental mistake”, but rather a “willfull infringement”.
* A skilled lawyer can point to that no attempt was made to contact his client during those 2 weeks, no attempt to resolve the dispute. “The alleged infringer even tried to conceal his identity, so there was no chance for my client to contact him”.
The use of Facebook photos is a legal risk in itself, i.e. most professionals will try to avoid using material like that without permission. It’s also difficult to identify a clear defense, there’s many more sources warning against that type of use than the opposite.
* “Payment creates a license”. A payment OFFER doesn’t.
* “I have already told …” is not an identifiable argument in support of your theory. And neither is your last statement there, it was filled with weasel words.
* “zero substantiation that compensation is required” is correct. I have never claimed that compensation is a REQUIRED part of Fair Use.
I have claimed that §107 is an “equitable type of defense” (based on Circular 1, copyright.gov) = it has to be interpreted in that way too. It has to be interpreted on a case-by-case basis rather than as a “bright line rule”.
I have claimed that §107 does neither exclude nor include factors like compensation or permissions. But on a case-by-case basis, a general permission may count in favor of a truly Fair Use.
A fair compensation offer, where that normally would have been a solution, may also count in favor of a truly Fair Use.
Example:
The use of unidentified photos found on the internet, showing important recent news events with high public interest, with high time pressure to publish the story. Specific example = the 2011 attacks in Norway (used as an example by BBC in another post).
I have looked at the “intrinsic” idea, the idea that free use is an “intrinsic part of the Fair Use doctrine”. Important factors should normally be clearly specified in a law, but there’s nothing to be found about the free use where I have looked. You must show where you have found it?
MY ARGUMENT
The primary purpose of §107 is to separate between copyright infringements and Fair Use of material. Some types of uses may be “fair enough” in themselves, but may still require some type of compensation to the copyright owner.
Fair Use can’t be used as an EXCUSE to avoid paying for something you normally would have paid for, e.g. you can’t expect to profit from that type of use at the expense of the copyright owner. Equity should normally protect BOTH interests.
if its fair use it does not matter.
if you take the time to understand the four factors you will see that the question being considered and answered IS whether the use is fair to both interests (society AND the owner.
It is assumed here that Oz serves the aims of the people and is permitted to use Sloan’s material because doing so is a positive for society while at the same time it does not harm Sloan. That’ fair use and its equitable.
not this again. you are stuck on some notion that offereing compensation shows honest intent and that is somehow “fair” like fair play.
use use use. fair use …..not fair play. fair use is at base whats fair between copyright holders and society.
Think of fair use as a tax on copyright holders if that helps. They give up something for the benefit of all.
In this context the news reporter is not only working for a newspaper but serving society’s interests as well and that is why the material is freely useable.
It either is or it isn’t fair use. There’s no gradations. Truly, sort of, kind of, quasi are out.
That statement was about “the 2011 attacks in Norway” mentioned as an example by BBC.
It involved photos and videos they normally would have paid for, from an ongoing terrorist attack (Anders Behring Breivik). Fair Use can normally not be used as an EXCUSE for not paying someone for something they normally would have paid for.
Can you point to that equity rule you have applied? Here’s the Maxims of equity (Wikipedia):
NOLINK://en.wikipedia.org/wiki/Maxims_of_equity
Here’s the list of Maxims:
I thought the fairness had been disputed? The DMCA takedown notice can be interpreted that way, as a dispute about the use of the material.
Not judicially. Sloan initiated the DMCA protocols by sending a notice of infringement via the ISP. Presumably Oz responded via counter notice that she was mistaken (the counter notice does not say WHY she is mistaken) The ISP is neutral in this, taking no one side against the other. Presumably, the ISP waits ten days, which gives time for for Oz to consider his position and then unfreezes the account.
This DMCA “dispute” (which in practical terms serves more like a warning) is tabled….indefinitely deferred… unless and until Sloan files a lawsuit.
In the highly unlikely event she filed a suit alleging infringement and demanding relief and/or damages Oz can respond in several ways, one of which is to assert a defense of fair use….which essentially argues that his use is permitted since reportage serves the aims of society at large and in this case does no or minimal harm to Sloan’s economic interests, That she is angry or embarrassed at having been parodied, reported on, or criticized does not infringe on the economic value of her copyrighted material. This is I assume why Oz characterized her DMCA takedown notice as bogus. She was responding to her embarrassment and attempting to silence him and not to any economic impact his use had on the nominal value of her copyrights.
I don’t care about Norwegian law and this:
.
“All the “Fair Use” examples in the Norwegian copyright law were truly about fair use, e.g. they mentioned compensation to the copyright owner where that would be fair and didn’t mention it in other examples. News organizations typically were expected to pay compensation in some cases.”
.
seems to be where you got your misguided ideas about compensation as a component of fair Use. I really doubt you understood what you read here to begin with for it is much more likely the newspapers mentioned were order to pay compensation after a finding of infringement rather than before.
.., it is also much more likely that the compensation mentioned in your readings was paid as a result of dispute arbitration or mediated settlement not as a condition of fair use.
The entire post was too vague, so I will simply not waste my time on it. I wasn’t able to identify any “substance”, e.g. you had 2 arguments starting with “presumably” in the first paragraph, and the rest of the post was primarily based on those 2 arguments.
When something can be identified clearly (to some degree), there’s no need to use terms like “presumably”. If you haven’t identified it clearly, you won’t be able to properly answer any factual questions about it either.
I don’t think we’re talking about the same thing there. I used BBC as an example earlier in this thread, an example for “how major news organizations will handle photos found on social media, e.g. about recent news events”.
The main point in that post was “Fair Use can’t be used as an EXCUSE for not doing something you normally should have done”, plus a question asking you to identify which rules you had applied.
I have pointed out several times that some comments will be difficult to understand because of indirect communication methods, e.g. “I believe you believe” posts. You have MANY of those.
Vague. It was exactly on point. I used “presumably” because I don’t know with any certainty what Oz did or what the ISP has done. I only know what I would reasonably expect them to do. Read it and pay attention.
If “no free equivalent” is available or could be created that would adequately give the same information, there is a strong inference that BBC was well within its rights to use the photographs.
If that was not the case then the use was not fair use. If its not fair use then it follows that the use was an infringement and compensation is payable.
Get it yet?
The problem was that the entire post was built on those 2 arguments, so the entire post was simply too vague. I was unable to identify any “substance”, so I simply gave you the reason for why I didn’t respond to it.
Troy Dooly used arguments like that when he tried to misdirect people about ZeekRewards. He pointed to all the uncertainty surrounding it, and came to the conclusion that people couldn’t know for sure anything at all (it would require a complete insight into ZeekRewards’ financial situation, and several complicated theories).
Focus on what you DO know rather than on what you DON’T know? It doesn’t need to be with absolute certainty or reasonable certainty, you have probably been able to identify SOME factual information.
Oh fuck off. Presumably is a perfectly legitimate qualifier denoting a high level of certainty. Do you reasonably doubt that Oz responded in the way I suggest or that the ISP waited ten days before unfreezing his account?
There are some things that do not lend themselves to long cut and pasted lists, so if you need static rigid certainty go read the Internal Revenue Code.
I believe we should terminate the discussion about what Fair Use is or isn’t, because it goes in circles.
* Your version of Fair Use has free uncompensated use as a major point, e.g. “Fair Use == free use / freely use, no compensation and no permission required”.
* My version of Fair Use can accept compensation and general permissions as a part of Fair Use, e.g. “Fair Use is not always free use, we will probably find exceptions where compensation will be required”. Photos will be one of those exceptions.
SUMMARY
It means I have not accepted the idea that a free use is “intrinsic” in the law. If it had been, it would normally have been clearly specified. The fact that some uses are free doesn’t mean all uses will be free.
I have not accepted the “bright line” interpretation, e.g. that the 4 factors always will need to be used. Some of those factors can be completely meaningless in some cases, e.g. for portrait photos.
I don’t believe in the theory that uses will be “converted” either (e.g. from Fair Use to Paid Use). Payments or payment offers alone may not resolve all disputes about a use, there can still be other factors people can disagree on.
I used BBC as an example. Fair Use can allow news organizations to use material related to recent news events of high public interest / high time pressure, without getting permission from the copyright owners first. But it doesn’t specifically allow them to use that type of material for free, the normal rules for compensation and permissions should still be applied.
For a discussion to make sense, we will need to bring in some NEW factors, NEW examples or sources of information.
Pointing out that a post is too vague to respond to is perfectly legitimate too. I didn’t question the legitimacy of “presumably”, only that the rest of the post became too vague and hypothetical.
You can’t build theories solely based on “presumably”. There will need to be SOME identifiable substance in it, and I didn’t manage to find that type of substance.
Actually I does, or your description was too vague. He identified indirectly SOME factors in post #290.
I identified the formal requirements for DMCA counter notifications in post #291, as they are specified in §512(g)(3):
Your description simply became too vague to respond to. It focused on your own hypothetical theories rather than on the realities. Some of the points seems to be missing in the counter notification, if I have interpreted it correctly.
If one or more of the basic arguments are flawed, it may be impossible to interpret the rest of the theory correctly, it may become too vague to identify. And that happened here.
You make interesting things boring.
Here’s the BBC story I have used as example.
NOLINK://www.bbc.co.uk/blogs/legacy/theeditors/2011/08/use_of_photographs_from_social.html
It started with a complaint from a blogger:
NOLINK://pigsonthewing.org.uk/bbc-fundamental-misunderstanding-copyright/
BBC’s first response was like this:
Their second response was like this (the BBC article):
Then it follows up with the “in extraordinary situations” statement, plus some examples (rioting in England, attacks in Norway, Arab uprising, etc.). The complaint was about 2 of those stories.
The use of photos there was about “recent news story photos” rather than “family photos”.
Not the smartest example to use. Nobody is claiming photos on Twitter (or Facebook) aren’t subject to US copyright law.
What’s the point of posting this? The dude’s griping he did not recieve attribution for some photo(s) he took not that the BBC had no right to use the material under fair use, needed to pay him under fair use or that there was infringement under copyright laws.
It isn’t easy to find good examples, so BBC was one of the best I found. It’s about the wrong copyright law, but UK courts will recognize SOME fair uses of recent news story photos, e.g. when the photo can’t be replaced by other material.
It also shows that BBC’s complaint department felt relatively sure about the legitimacy of the use, but where they rather immediately had to backpedal into a safer terrain.
Many people, including professionals, will see photos found on the internet as “in the public domain / can be freely used”. But that will only reflect how they SEE IT themselves, it isn’t supported by courts or public opinion.
The BBC example was lifted from a more relevant example, an unauthorized use of “family photos” by Great Falls Tribune:
NOLINK://www.news.hypercrit.net/2013/07/17/was-the-tribune-right-to-use-facebook-photos-in-a-news-story/
NOLINK://archive.greatfallstribune.com/article/20131216/NEWS01/112160001/Web-relations-belies-aide-s-denial-Connecting-Montana-s-former-governor-dark-money?nclick_check=1
I had a quick look at the first source initially. It clearly shows there’s a lot of resistance against the use of privately owned photos without permission.
It had nothing to do with the legitimacy of the use but to correct a misstatement that Twitter photos were useable because they were in the public domain.
BBC (any news outlet MUST jealously safeguard its right to fair use and never imply that photos must be in the public domain to be useable.
The restatement was…. they are copyrighted and we have a right to use them in this situation. = fair use not free use as would be the case if the photos were in the public domain.
That is the mistake the BBC editor secretary made when he/she responded to the photographer and why the BBC was quick to correct it.
Use is a much easier thing to defend than we can use it because its in the public domain (how the hell do you really know what’s in the public domain anyway unless the material is nearly pre-historic.
It shows that the use of photos from social media is a “tricky, grey area”. A republisher must not only deal with various laws but also with the public opinion.
One of the arguments in the Great Falls Tribune case was “if I can go into a non elected citizens Facebook account to lift a picture – which was not needed to make their point, then I can go into any citizens account in the name of news”, from retired state senator Mike Jopek.
It’s a tricky, grey area, e.g. which rules should people follow? Fair Use in the Copyright Act isn’t a type of “Master Rule” you can apply to each and every situation. For “family photos” of any type, you must respect privacy rights too. For commercial photos it will mostly be about commercial rights.
You have managed to make fair use about 100 times more confusing than it actually is so lets simplify
If an experienced and legally advised editorial staff such as exists at BBC, makes the decision to use a photograph from Twitter its fair use unless someone sues them and proves differently.
in the US.
M_Norway, I’m getting a little tired of all these non-US examples. BehindMLM is hosted in the US, those are the laws that apply.
Right,in the US. Fair dealing in the UK. Different.
It wasn’t my comment. I had the conclusion about “tricky, grey area, republishers will not only have to deal with laws but with public opinion too”.
BBC was used as an example in “Did the great Falls Tribune do the right thing?”, about the use of Facebook photos in news without permission from the owners. That article was trying to identify relevant sources from a much wider perspective than simply looking at a single law rule.
NOLINK://www.news.hypercrit.net/2013/07/17/was-the-tribune-right-to-use-facebook-photos-in-a-news-story/
There’s few relevant cases to look at. Newspapers will generally avoid using photos without some type of permission. If Fair Use had been commonly used in cases like that there should have been many more cases to look at.
SOME RED FLAGS
1. Wikipedia/Fair_Use didn’t have any relevant example cases.
2. Commercial photos are generally not covered by Fair Use.
3. Privately owned photos may be covered by Privacy laws.
4. Facebook’s own terms and conditions identifies the ownership and control to belong to the users themselves, e.g. through privacy settings.
5. Vague ideas, e.g. “Fair Use = Free uncompensated use, freely unlicensed use”. The uncompensated and unlicensed use is “intrinsic” in the law.
6. People generally seemed to be unprepared for how to handle DMCA takedown notifications, e.g. how to find and how to identify relevant sources.
All those red flags are pointing in the direction of a “tricky, grey area of law”.
SOME METHODS USED BY NEWSPAPERS TO GET PERMISSION
NRK.no posted a “Share your photos of the current natural disaster through Instagram”, a How-to-do description where people voluntarily could share photos of a recent news event. They have used similar methods over and over again with no known complaints.
* Additional use of a photo will probably be compensated / agreed on separatedly. The use of privately owned photos is limited to a specific use by a specific news organization, i.e. people won’t lose any rights when they upload a photo.
DISPUTES MAY BE MOSTLY ABOUT “SOCIAL RULES”
Disputes about the use of photos typically arises from the violation of some “social rules” rather than from clear violation of laws.
* “Lifting a photo off Facebook without permission”. People OWN their private photos themselves, they own the right to voluntarily share photos or deny sharing photos.
* “Not being properly credited for the use”. For some people, being personally credited for the work may be an important factor.
One single “social rule” can be extracted:
“The owners of the photos must SEE IT as Fair Use, to a certain degree, before they will accept any Fair Use theories based on laws. They must accept the idea that the use itself is relatively fair, ‘fair enough to accept and not really worth arguing about’, before law arguments will make any sense”.
BBC failed there when they initially claimed “Public domain rights”. Great Falls Tribune managed to handle the situation. NRK.no has a system in place to allow people to voluntarily share photos in some specific situations.
You don’t get it. Move on.
Here’s some translated details for that type of permission:
The translation will need some common sense to be understood correctly, e.g. the statement “respect copyright law, only upload photos you have taken”.
Methods like that can be used over and over again. They will generate very little resistance from the users.
* It’s a general license, for a specific and limited use.
* It’s voluntarily, people must actively want to share photos.
* People can delete the photos when or if they want.
* People won’t lose any rights.
You have probably focused on some small details, out of context with the post itself.
It been said, and rightly so that given an infinite amount of time and a keyboard that a monkey will reproduce Hamlet, word for word.
However, Nobody ever said the monkey would understand Shakespeare.
The context of that post was “I didn’t solely focus on laws, I focused on the same factors the original article focused on”. Original article = “Was the Tribune right to use Facebook photos in a news story?”.
People in general will not study laws. They will look at the use of photos from their own personal perspective, and either complain about the use or accept it. They will look at various “social rules” before they start to look at laws.
It will be possible to reduce the chances of legal actions by handling the use of photos and potential complaints correctly.
I didn’t have time to wait an infinite amount of time, so I posted a short explanation. 🙂
You don’t get it. Move on.
I guessed, based on previous experiences, that you had focused on some small details out of context with the post itself. You might have other explanations, but I had to look at the most obvious ones.
The original article covered more than one perspective. I tried to cover some similar perspectives, but in less detail (e.g. I didn’t specify any Facebook rules, and I didn’t analyse ethical aspects).
People in general will typically focus on the use itself, how they see it. Referring to a Fair Use rule may be the wrong type of response to a complaint about a use of material, e.g. because of the vagueness of that rule.
I picked up a story about a DMCA takedown notification from a “Romance Author”, Roni Loren.
NOLINK://www.blogher.com/bloggers-beware-you-can-get-sued-using-photos-your-blog-my-story?page=full
One problem is that she doesn’t share any details, e.g. about the amount or about the takedown notification itself. But her story is typical = she learned how to blog by watching other bloggers and how they did it, e.g. finding photos on the internet and using a disclaimer for the copyrights.
One problem with “social bloggers” is that they don’t share any factual details (e.g. what the lawyer said, the exact amount). They share their own experiences with a situation rather than the facts.
This blogger has probably over-reacted, but she does share some valuable experiences and tips for how to find freely available photos.
OVER-REACTION?
Her own description indicates an “easy target”:
“The pic was down within minutes”. She didn’t even analyse the complaint before she reacted to it. The best strategy is usually to calm down and analyse what the complaint is about before making any decisions.
“A significant chunk of money that I couldn’t afford” indicates an unreasonable claim. They can be negotiated, e.g. you can ask for a specification of the amount to make sure it doesn’t include anything extra (SOME extra costs may be acceptable, e.g. the costs of the takedown notification itself).
You can ask about whether the payment will cover a license to use the photo, and where to find terms and conditions. “Make it become a negotiation about the price for a license rather than about infringement”.
Copyright is a tricky, grey area of law for both parties, both for the copyright owner and for the alleged infringer. Even professionals seem to misinterpret details in favor of their own point of view. Some lawyers may promise more than they can deliver to get a client “on the hook”.
Daniel Morel’s claims were heavily reduced by the judge in “Morel v. AFP”. He won the case, but he lost a major part of it too. He was awarded $1.2 million plus expenses, but his claims could easily be calculated to tens of millions.
There is no way to disclaim your way out of copyright infringement. If its fair use no disclaimer is required and if its not a disclaimer has no legal effect.
If it were possible to disclaim culpability the prisons would be empty.
The disclaimer was part of her own story, how she had learned blogging by watching others, including how to use photos found on the internet.
When people are searching the internet for information, they have usually already decided what type of information they’re interested in.
A person interested in using photos in a blog will prefer specific types of sources, e.g. other bloggers already using photos. Other bloggers will reflect her own ideas and add more “substance” to them, e.g. ideas about Fair Use and how to use copyright disclaimers.
COPYRIGHT OWNER, “HIGHLY FRUSTRATING”
I can see a few potential reasons for why she was picked out as a “target” for a DMCA takedown notification.
* She’s a copyright owner herself, with 20+ books published. “A copyright owner should preferrably respect the interests of other copyright owners” may have been a reason.
* Her blogs are commercial, promoting the books.
* “Potential deep pockets”, i.e. she claims to be on the Bestseller list for at least one of her books.
* She may have been “highly frustrating” from the perspective of photographers, e.g. she used THEIR photos as a core part of her own weekly series of posts (e.g. “Boyfriend of the week”, “Mancandy”), without paying for the use of the photos.
Reasonable people will usually accept random, non-commercial use of material as long as it doesn’t directly harm their own interests. Less reasonable people may be different, but that’s another story. Takedown notifications will need to be “triggered” by something.