Talk:Fair use

The definition is radically problematic. It does not provide for the right under certain circumstances to copy by posting on the web or publishing, it provides a right for a defense for certain types of incorporations of copyrighted works into other publications without permission.  —Stephen Ewen (Talk) 22:29, 26 September 2007 (CDT)

That Japan has "similar national laws" regarding fair use is simply wrong. The Japanese legal system has no correlate to the four prongs. Rather than creating principles that courts then interpret on a case-by-case basis, they instead have opted to create amazingly detailed laws on what is recognized as Limitations on Copyright in Japan. In the same manner as other countries, however, their courts are frequently called upon to decide cases based upon that complex of limitations. Very few win.  —Stephen Ewen (Talk) 22:51, 26 September 2007 (CDT)

Thanks for the info on Japan, which I did not know. A legal protection that allows a person to do something is a right. It is not true that fair-use material has to be "incorporated into" something else-- that is NOT on the 4 part list. For example, copying a news story onto the web for the purpose of elicitng commentary is fair use. Richard Jensen 23:20, 26 September 2007 (CDT)

Wow, this make so clear to me just how wrong your thinking is about this matter. Incorporating a portion of a news story into a critical commentary on a blog, while providing a link to the remainder, would be fair use. Copying the entire article is absolutely infringing. Especially for popular blogs that make ad revenue who copy an entire article, they are opening themselves up to receive a take-down letter from the newspaper's lawyers. Keep it up and the take-down demand will be more than a demand. Copying over entire news articles to other sites without permission deprives the newspaper of the ad revenue it would otherwise receive by people clicking on the link in your blog post, the one that makes fair use of excerpts. Also, determinations of fair use are not just quantitative but qualitative. If you copy "the heart" of the news article such that people do not need to read it at the source, thus depriving the paper of revenue, and you are looking for trouble. Goodness, even Google News has this right.  —Stephen Ewen (Talk) 00:03, 27 September 2007 (CDT)

"Copying the entire article is absolutely infringing." No court has said so--this appears to be imaginary. Please cite some legal evidence. Richard Jensen 00:09, 27 September 2007 (CDT)

According to you, the following apparently does not exist:

1. "The amount and substantiality of the portion used in relation to the copyrighted work as a whole".
2. The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”[1]

Excepting the special teacher's exception - copying an entire article off-the-cuff one term for his class - or in legislative or judicial proceedings or reports, copying an entire news article snubs the law right to the wind. Lack of a court controversy over the fact of something existing does not imply it is fair use. It only says it was not taken to task.  —Stephen Ewen (Talk) 00:24, 27 September 2007 (CDT)

Steve--read the SONY decision again. Ity involved copying an entire movie. Richard Jensen 00:39, 27 September 2007 (CDT)

Sure, mere home recording in one's own home and for his own personal use and from one format to another was (barely) considered fair. The suit was against the creator of the technology, besides. But no one here is really talking about recording the World Series or re-runs of the Mary Tyler Moore Show off TV for their own use in their own home, are they? Moreover, making such recordings are no longer considered fair use. The exception has been made law and is not covered by fair use today.  —Stephen Ewen (Talk) 00:50, 27 September 2007 (CDT)

I'm pretty sure that Stephen has it correct since the advent of file-sharing networks and mp3s basically amounted to declaration of war against the RIAA (essentially this is the argument of "fair use" versus "copyright infringement"). I believe it is no longer the case that recordings or reproductions in whole are allowed. If you want you can start up almost any dvd and it will tell you the law before you can even watch the movie. --Robert W King 00:56, 27 September 2007 (CDT)

I'd also like to point out Richard that the way your most recent addition is phrased, it seems like it is more or less construed as a point of argument that should appear on a talk page and not in the main article space. --Robert W King 00:59, 27 September 2007 (CDT)

Just try taking those home recordings of the Mary Tyler Moore Show, digitizing them, and placing them on the web and see what happens.  —Stephen Ewen (Talk) 01:02, 27 September 2007 (CDT)

Additionally, I just want to make one more point: I personally would no longer reference any court case or news article which deals with fair use that predates the first case against Napster. I don't think any case before that reflects any kind of modern judgement. --Robert W King 01:07, 27 September 2007 (CDT)

My old VHS recordings used to have a huge warning about the FBI investigating unfair use. Actualy the FBI never did any such thing. It was merely Hollywood scare tactics. people like napster who put 100,000 songs on line better get a better lawyer than CZ! However for the millions (hundreds?) of CZ users in school wondering if they will go to prison if they copy one item, maybe we can help. (Anyone who plagiarizes in school may well get in real trouble--but not in the nonacademic world.)Richard Jensen 01:17, 27 September 2007 (CDT)

I get jokes. But in total seriousness it is our job to represent the law *as it is*, not as what we believe it *should be*. Technically, you could probably be pursued for one instance of copyright infringement. Would you be? Doubtful, but it doesn't change the fact that the laws are in place. --Robert W King 01:30, 27 September 2007 (CDT)

more scholars get hit by meteorites than get sued for copyright. there are two issues. CAN a person be sued? Almost anyone can be sued at any time--that's been the American way for 300 years. Will the plaintiff win? Not in a fair use suit against a student, school or non-profit organization like CZ. The law says people have a right to fair use-- indeed without it, there would be no reference books or university classes--imagine the professor having to get permission for every book he uses in preparing a course. Richard Jensen 01:37, 27 September 2007 (CDT)

Really? Now that is fascinating. I took a look at a few sources and best as I can see, since May of 861 A.D. when a meteorite strike was reported for Kyushu, Japan, there have been a total of 14 people reported to have been hit by meteorites, the first report was for February 16, 1827 when a man in Mhow, India was wounded by what may have been a meteorite. So that would either be one person every 82 years or one every 13 years if you round off and taking each date respectively. Now, what you seem to be saying is that the number of people prosecuted for copyright infringement is less than one every 82 or 13 years? (I think the inference I make here is rational and given that it follows the statements you made, coherent.) If your statement is true (factual), it does have some bearing on the discussion in that the pertinent laws would seem to be toothless or at least difficult to actually press, in court anyway. By that I mean there is also the question of how many cases of prosecution are avoided by out of court settlements, which is the norm in Japan and the USA and evidently New Zealand and Australia and Britain etc. and that might make the law a little more of a problem but let's go with the once every 13 yers or more. Does anyone have stats on how many of the cases are actually prosecuted? --Thomas Simmons 19:59, 27 September 2007 (CDT)

well I honestly don't know much about meteorite strikes, but there has not been a lawsuit against a scholar in the last 13 years that I have heard about (and I try to track it). all lawsuits have to be filed in federal court and all these courts are very well covered by the legal press. Richard Jensen 20:08, 27 September 2007 (CDT)

exceptions pertaining to educational and nonprofit organizations do not apply to the public-at-large and it would be to our discredit to make it appear so. --Robert W King 01:50, 27 September 2007 (CDT)

Of course, Richard has just admitted he is not after fair use on CZ, but "what can we perhaps get away with" on CZ. Generally, people are very confused about what is fair use indeed and what-infringement-can-we-perhaps-get-away-with use, fair-because-I-think-it-is-fair use, fair-because-I-want-it-to-be-fair use, and/or fair-because-I-personally-think-it-is-fair use. Richard wants CZ to create a "fair use policy" according to one of these extraneous variants yet call it fair use indeed.

To say that high-caliber scholarship would be inhibited by following fair use indeed simply bellies reality. It sometimes just takes an honorable effort, that's all. Moreover, Richard is introducing another of his multitudinous straw men in a debate by stating, "Imagine the professor having to get permission for every book he uses in preparing a course." No one here is trying to say anything about that--what any professor anywhere does in his or her classroom with his or her students, although the courts have spoken instructively on the matter.  —Stephen Ewen (Talk) 01:48, 27 September 2007 (CDT)

Let's carry this on at CZ_Talk:Fair_Use_Policy,_Media. This page should be about article wording, and there is PLENTY of problems here in that regard to more than enough take up this particular space.  —Stephen Ewen (Talk) 02:06, 27 September 2007 (CDT)

Encyclopedic

It's not very encyclopedic to say we don't know what we're talking about. So I made a positive statement instead of this: Legal definitions and the legal scope of public domain vary across the world, and it is not unusual for works to be public domain in one country and copyrighted in another. This lack of any international standard is a serious problem for internet publishing, where the applicable law is unclear and leaves internet publishers open to potential litigation. There is no such litigatation, and the "serious problem" is a gross exaggeration --there are no concrete examples given.Richard Jensen 23:25, 26 September 2007 (CDT)

the loss-of-ad-revenue argument has not been upheld by any court. it's not the law. Richard Jensen 10:58, 27 September 2007 (CDT)

The point about legal uncertainty is critical, Richard. You may not like it, and consider it to be "unencyclopedic" but that is the legal reality. It is mentioned in all serious legal advice texts, that the fact that something is PD in the USA does not mean that it is anywhere else. As I am not an expert on copyright law, I do not know the legal cases, but I can tell you that already there are big problems with PD music scores on servers, where the scores are in copyright in Europe but PD in Canada and the USA. We are just waiting for the litigation to occur.

So, your removal of the warning about legal territorial differences and PD is unwise. --Martin Baldwin-Edwards 12:29, 27 September 2007 (CDT)

I suppose this is a reference to illegal www use in China. But Chinese restrictions are entirely separate from copyright law. No other country has made it unlawful to download material from the USA and to say so in the article is simply false.Richard Jensen 12:37, 27 September 2007 (CDT)

No no, this is not about China. There are terrible legal pitfalls awaiting us with the gap between Europe and North America... Although it is not a criminal offence to d/l material, the situation in civil law is far from clear. --Martin Baldwin-Edwards 12:40, 27 September 2007 (CDT)

I see you removed the remark about unlawful d/ling. Although it is not a criminal offence, it implies that the re-use of the article/image would be prohibited, as copyright would prevail. This means that your whole paragraph is wrong outside of the US jurisdiction... That is what I tried to convey. --Martin Baldwin-Edwards 12:44, 27 September 2007 (CDT)

If the law changes in Europe or somewhere then we change the article. But let's wait for that to happen. It's hard enough to cover the past without trying to cover the future as well.Richard Jensen 12:44, 27 September 2007 (CDT)

I'd like to suggest we not try to make this a comparative study, but create separate articles for jurisdictions. This would thus be named Fair use (United States). But really better is to avoid the narrow articles like this altogether, but deal with this in an article Copyright (United States). Reason being is that it is difficult to understand fair use apart from understanding the context of copyright.  —Stephen Ewen (Talk) 13:33, 27 September 2007 (CDT)

Agreed.--Martin Baldwin-Edwards 13:38, 27 September 2007 (CDT)

not agreed. There are only 5 lines devoted to UK, Canada and Australia. Richard Jensen 14:43, 27 September 2007 (CDT)

Plagiarism

I added the plagiarism section because people get all confused otherwise about the difference between fair use/copyright issues and plagiarism. I have never heard of a LEGAL case under federal copyright law regarding plagiarism. There have of course been violation-of-copyright lawsuits (for example against DaVinci Code, settled in London in Brown's favour in 2006. see [2] for the details. Richard Jensen 23:34, 26 September 2007 (CDT)

Biased article

"Since the primary purpose of copyright is to foster the dissemination of knowledge rather than to protect the property rights of the creator" - wow, that is some radical bias.  —Stephen Ewen (Talk) 14:34, 27 September 2007 (CDT)

I don't know that I would call this bias, but I do wonder how anyone can actually know what is the primary purpose of certain laws. Maybe Richard can tell us? My supposition is that different politico-economic interests come together at a specific time to push for a certain type of law; decades after that law is passed, perceptions of its raison d'etre can be debated endlessly. I also imagine that the emphasis has shifted in the USA more toward property rights than used to be the case, but I could be completely wrong about that. --Martin Baldwin-Edwards 15:14, 27 September 2007 (CDT)

It's a perfectly clear example of bias, in fact: it asserts without qualification a view that many legal theorists would disagree with. It's as simple as that; a better example of bias could hardly be found, I'm afraid. --Larry Sanger 15:10, 28 September 2007 (CDT)

Re the purpose of the law: It's the Constitution & federal courts that said that. I was closely paraphrasing a leading expert who said: "Because the primary purpose of copyright is to foster the dissemination of knowledge rather than to protect the property rights of the creator, the courts ...." at [3] Richard Jensen 16:14, 27 September 2007 (CDT)

Very interesting, this link...especially the importance of "common law copyright" versus commercial copyright. It seems that we continue to have this debate across countries and over centuries...--Martin Baldwin-Edwards 16:35, 27 September 2007 (CDT)

That is Michael Les Benedict's opinion that you are giving as fact!  —Stephen Ewen (Talk) 13:37, 28 September 2007 (CDT)

"On the first point, the courts in recent years have never held against 'fair use' by a non profit organization."

A weasel-worded argument from silence, referenced to a source that says nothing but that nonprofit use is "more likely" to be fair use.

Text here was removed by the Constabulary on grounds that it is needlessly inflammatory. (The author may replace this template with an edited version of the original remarks.)

 —Stephen Ewen (Talk) 13:37, 28 September 2007 (CDT)

I don't know terribly much about intellectual property law, but I do know a few things about the philosophy of intellectual property. And I can tell you that, of course, neither mere court opinions nor even the Constitution itself can convincingly establish what purpose intellectual property, as a general institution, serves. There are various theories of what purpose intellectual property might have, or what philosophically justifies the institution. My friend Adam Moore, for example, at the U. of Washington, has a Lockean theory of intellectual property (that would include copyright of course), which is intended to serve as a defense of intellectual property rights. All that an opinion, or a law, can establish is what is legal. Otherwise, the text is merely presenting a theory, however interesting and ultimately true, and the judge's or lawmaker's opinion doesn't matter any more than that of any other legal theorist. Here, legal theorists and philosophers are the authorities to cite. -- All that said, the point at issue need not turn on what the deep, philosophical justification of intellectual property is; it is ultimately about the purpose of the law! So reqording is fine.

And, need I remind certain editors...if you wish to revert my edits, bare politeness requires that you reply in adequate detail to the grounds of my edits.  :-) --Larry Sanger 15:10, 28 September 2007 (CDT)

I've noticed also that there is a quotation from Patrick Parrinder, criticizing some court decision(s), without doing so much as citing the reasoning in the court decision. Please, let's dig out the (or a) decision and provide a balancing quotation. Otherwise, it looks like we're endorsing Parrinder's view, which we may not do, since--obviously--the fact of the existence of the court decision indicates that there is another scholarly perspective on the matter. --Larry Sanger 15:29, 28 September 2007 (CDT)

I'd like to see a citation for this interesting claim: "the courts in recent years have never held against 'fair use' by a non profit organization." They haven't? Really? Ever? Is that because non-profits have been good little boys and girls and followed the law, or because the courts now say uniformly that they can do what would be copyright violation if done by a for-profit business, with perfect impunity? --Larry Sanger 15:43, 28 September 2007 (CDT)

On this: "On the final point, note that most material on the WWW is valued at zero when the owner gives it away for free." I'd like to see some evidence, or at least more explanation, of the claim.

The sections on the public domain and plagiarism are puzzling in that I don't know quite what they are doing here. They don't particularly throw light on fair use. Is the idea that people can sometimes misapply the notion of fair use, and some people think that there is a fair use law that applies to the public domain? I'm not sure there is a need to point this out, because I doubt that anyone who understands the concept of the public domain needs to be told that fair use--which only applies to copyright--doesn't apply. Maybe I'm wrong, but I'd like to see an example. As to the plagiarism section, again I don't see the point. Maybe what we need is a section titled "Misapplications of the concept of fair use," or something like that, if we really feel that's important to cover. --Larry Sanger 16:22, 28 September 2007 (CDT)

Fairness versus Fair Use

Fairness is a philosophical term, but "fair use" and fair dealing are legal terms that have been created and explained by judges and legal scholars. The article sticks pretty close to the legal literature on the subject, hence the many quotes and cites. A couple of sentences on "Plagiarism" is in here because it gets mixed up all the time with fair use. Likewise public domain. Richard Jensen 18:55, 28 September 2007 (CDT)

Fair enough, but the point I made was about the wording of a specific sentence which talked not about fair use per se but about copyright and its justification. But my rewording removed the issue!  :-) --Larry Sanger 20:29, 28 September 2007 (CDT)

Removed quote...

Sorry, but I am going to stick to my guns here: this quote

Patrick Parrinder argues, "Without the act of quotation there is little possibility of free discussion, rational debate or open reporting. Direct and acknowledged quotation is essential to scholarship since it provides both quoter and quotee with a guarantee against misrepresentation."

however relevant, however important, if left by itself, essentially makes CZ appear to endorse the position of historians and Parrinder against the court decision. This is biased on its face. Sorry, but CZ cannot endorse the historians' position; it doesn't endorse any position. The way to include the Parrinder quote if necessary, is simply to provide a forceful, representative quote from the decision(s) criticized. Shouldn't take too long to find. --Larry Sanger 20:29, 28 September 2007 (CDT)

Parringer was not talking about any specific case, but rather how scholarship has to be based on quotes. There is no "other" position I have ever seen. The question was whether unpublished works had super-protection or not (so that even a few words exceed fair use--Ron Hubbard's religious group wanted that to prevent outsiders from quoting any of their scriptures.) Congress in 1993 changed the law to explictly allow fair use of unpublished texts so there is no super-protection. see Page Putnam Miller "Congress Passes Law to Clarify Fair Use of Unpublished Copyrighted Material" PS: Political Science and Politics, Vol. 26, No. 1. (Mar., 1993), pp. 90-91. in JSTORRichard Jensen 21:14, 28 September 2007 (CDT)

UK law does not exist

Please do not revert my corrections to mistakes on this point. There is no such thing as UK or British law,. There are two quite spearate legal system of England and Wales, and Scotland. Nothing else to discuss.--Martin Baldwin-Edwards 21:48, 28 September 2007 (CDT)

ah yes, time moves on and we have a UK copyright law--one law passed in 1988 that covers the whole UK see [4]. The copyright law is identical across the UK, though the courts in Scotland can handle it in their own procedures, says [5] at page 6. UK also has UK Patent Law see [6] There are books titled The ABCd of UK Photographic Copyright: A Guide to the 1988 Copyright Designs and Patents Act at [7]. There is no Scots Law of copyright. We even have: "UK Law and Your Rights for Dummies" at [8] Richard Jensen 23:47, 28 September 2007 (CDT)

accurate or vague

There have been no successful lawsuits against nonprofits or scholars in over 15 years. What's a good way of saying that? When websites price a product at zero, that's quite explicit-- subscription websites charge $$. So let's keep the factual information in place. Richard Jensen 01:07, 29 September 2007 (CDT)

See Lee Wilson, Fair Use, Free Use, and Use by Permission, pp. 122-124, for why the above is fallacious.  —Stephen Ewen (Talk) 02:30, 29 September 2007 (CDT)

he seems to be talking about music file swapping, where legit websites charge $ and kids get around that. Richard Jensen 02:55, 29 September 2007 (CDT)

You got the wrong pages. And he is she, FYI. :-)  —Stephen Ewen (Talk) 03:51, 29 September 2007 (CDT)

although access to such works may be restricted by third-party proprietary rights

Richard reverted the above text I added to the PD section. Let's take a real simple example. I OWN photographs of relatives engaging in agriculture in the late 1800s. The photos are in the public domain. HOWEVER, I can restrict access to them because I OWN them, the physical photos. PD status of a work does not give one THE RIGHT to ACCESS the work. If you'd like access to my materials, you have to get my permission. And, I CAN charge for that ACCESS, if I want, and it is legal. Same goes for museums--at the least by the admission price many charge.  —Stephen Ewen (Talk) 02:00, 29 September 2007 (CDT)

the article is about copyright and fair use. there is no copyright in these PD items and no copyright owner to give permission. Richard Jensen 02:23, 29 September 2007 (CDT)

You were stating false and misleading information, including that PD works can be used "in any way whatever, without asking any permission", which is a direct affront to the Privacy and Publicity Rights enjoyed by heirs of PD work, which are separate and distinct interests from copyright interests, see http://memory.loc.gov/ammem/copothr.html. You were also stating false and misleading information by ignoring facts (cherry-picking all available material) about third-party proprietary rights, which are also separate and distinct interests from copyright interests, concerning PD works. Yes, you can copy them for free, but you cannot access them for free, if I as the owner say you cannot. Like it or not (!), third-party proprietary rights give legal restriction rights to owners of PD materials. Don't believe me? Then try to demand access to the physical images I own of my relatives farming in Appalachia. Said simply, and it would be borne out in any contest, you will find that my proprietary rights over access to the images trumps your right to copy them. On the other hand, if you diplomatically ask my permission to access them, and convince me you will shed them in a scholarly, sympathetic, and respectful light, I am likely to give you access to them so you can exercise your free right to copy them. This same concern of having subjects shed in such lights is the very same concern museums and other collections holders have over copy unrestricted images in their collection, and a main reason reason why they exercise access control over them. The best way forward is to diplomatically deal with them rather than gain a reputation as rogues, or some such.  —Stephen Ewen (Talk) 02:34, 29 September 2007 (CDT)

Museums are a little more hard headed: they want the $ from sales and "diplomacy: is rarely a factor. At the Newberry Library (a rare book museum where I worked for 11 years) they had very restrictive policies indeed.Richard Jensen 03:32, 29 September 2007 (CDT)

Regarding http://en.citizendium.org/wiki?title=Fair_use&diff=100178871&oldid=100178853 which I reverted because it is simply factually wrong and misleading: Any owner of a PD work, not just museums, may restrict access. It is not about controlling mere reproduction for narrow reasons, but access for a wide variety of reasons, the basis of which is, very specifically and legally, proprietary rights, not reproduction rights.  —Stephen Ewen (Talk) 03:40, 29 September 2007 (CDT)