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Re: [MedievalSawdust] Copyright Question

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  • Mark Schuldenfrei
    ... I am not an attorney, and have no specific expertise. But my plain reading of the law says to me that you are mistaken: =================== § 107.
    Message 1 of 26 , Mar 2, 2006
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      > > What weight would the "Fair Use Exception" have in
      > > your analysis?
      > > Tibor

      > None. I think 'Fair Use' would be the 'copy for your
      > own personal use' example.

      I am not an attorney, and have no specific expertise. But my
      plain reading of the law says to me that you are mistaken:

      ===================
      § 107. Limitations on exclusive rights: Fair use

      Notwithstanding the provisions of sections 106 and 106A, the fair use of
      a copyrighted work, including such use by reproduction in copies or
      phonorecords or by any other means specified by that section, for
      purposes such as criticism, comment, news reporting, teaching (including
      multiple copies for classroom use), scholarship, or research, is not an
      infringement of copyright. In determining whether the use made of a work
      in any particular case is a fair use the factors to be considered shall
      include —

      (1) the purpose and character of the use, including whether such use is
      of a commercial nature or is for nonprofit educational purposes;

      (2) the nature of the copyrighted work;

      (3) the amount and substantiality of the portion used in relation to the
      copyrighted work as a whole; and

      (4) the effect of the use upon the potential market for or value of the
      copyrighted work.

      The fact that a work is unpublished shall not itself bar a finding of
      fair use if such finding is made upon consideration of all the above
      factors.
      ===================

      In this case the purpose is non-commercial, is research only, is just
      one article from a magazine, and doesn't have a substantial impact
      upon the market value of the magazine.

      Whether the commercial nature of Yahoo and advertising affects this,
      I cannot say.

      I'd put it up.

      Tibor
    • Mark Schuldenfrei
      To our Moderators, and others. For questions on copyright (since in the end, you ll be making your own decision) the US web site I start with is often
      Message 2 of 26 , Mar 2, 2006
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        To our Moderators, and others.

        For questions on copyright (since in the end, you'll be making your
        own decision) the US web site I start with is often
        http://www.copyright.gov

        Tibor
      • Ld. Robin Gallowglass
        ... I have to disagree with you Tibor. There s actually, as I understand it, two interlocking copyrights that have to be addresses. Each article typically
        Message 3 of 26 , Mar 2, 2006
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          On Thursday 02 March 2006 11:00, Mark Schuldenfrei wrote:
          > > > What weight would the "Fair Use Exception" have in
          > > > your analysis?
          > > > Tibor
          > >
          > > None. I think 'Fair Use' would be the 'copy for your
          > > own personal use' example.
          >
          > I am not an attorney, and have no specific expertise. But my
          > plain reading of the law says to me that you are mistaken:

          > In this case the purpose is non-commercial, is research only, is just
          > one article from a magazine, and doesn't have a substantial impact
          > upon the market value of the magazine.

          I have to disagree with you Tibor. There's actually, as I understand it, two
          interlocking copyrights that have to be addresses. Each article typically
          has it's own copyright and the author has given the magazine exclusive or
          non-exclusive publication rights. The second is the copyright of the
          magazine as a compilation. Reprinting the whole article on this or any
          mailing list, in my opinion, would _NOT_ be fair use of the copyrighted
          article.

          >
          > Whether the commercial nature of Yahoo and advertising affects this,
          > I cannot say.
          >
          > I'd put it up.
          >
          > Tibor

          Robin
        • Mark Schuldenfrei
          ... But, the same reasoning applies to both copyrights, in parallel. Tibor
          Message 4 of 26 , Mar 2, 2006
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            > I have to disagree with you Tibor. There's actually, as I understand it, two
            > interlocking copyrights that have to be addresses. Each article typically
            > has it's own copyright and the author has given the magazine exclusive or
            > non-exclusive publication rights.

            But, the same reasoning applies to both copyrights, in parallel.

            Tibor
          • Ld. Robin Gallowglass
            ... But the copyright on the article is the more specific copyright and takes precedent, as I understand it. Copyright is tricky and slippery, and not even
            Message 5 of 26 , Mar 2, 2006
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              On Thursday 02 March 2006 11:47, Mark Schuldenfrei wrote:
              > > I have to disagree with you Tibor. There's actually, as I understand it,
              > > two interlocking copyrights that have to be addresses. Each article
              > > typically has it's own copyright and the author has given the magazine
              > > exclusive or non-exclusive publication rights.
              >
              > But, the same reasoning applies to both copyrights, in parallel.

              But the copyright on the article is the more specific copyright and takes
              precedent, as I understand it.

              Copyright is tricky and slippery, and not even copyright lawyers can agree on
              some things. My advice is better safe than sorry and _NOT_ put it up.

              >
              > Tibor
              >

              Robin
            • Mark Schuldenfrei
              ... I ve read a bit on the topic - never heard that analysis or language before. The author has rights, which he or she can sell, waive or keep. If the
              Message 6 of 26 , Mar 2, 2006
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                > But the copyright on the article is the more specific copyright and takes
                > precedent, as I understand it.

                I've read a bit on the topic - never heard that analysis or language
                before.

                The author has rights, which he or she can sell, waive or keep. If
                the article appears in a magazine, there is obviously (hopefully) a
                legal agreement between the two parties giving the right to make
                copies to the magazine. Perhaps even assigning the entire copyright
                to the magazine. Or something in between.

                But, for purposes of fair use, it does not matter at all who holds
                the copyright - only what your use of it is for, and what your use
                does to their commercial rights.

                In this case, there is ZERO commercial use or interest.


                > Copyright is tricky and slippery, and not even copyright lawyers can agree on
                > some things. My advice is better safe than sorry and _NOT_ put it up.

                While there are some interesting edge cases, most copyright lawyers
                seem to have basic understandings of the simple cases like this one.
                I'm not one of them. But I think that:

                1. There is a Fair Use exemption here.

                2. Even if the end result is to violate a copyright or if one of the
                copyright holders wants you to THINK that there is - they will
                send a cease and desist letter, and it can be taken down.

                3. No one in their right mind would litigate this, even as a
                copyright holder - it is not clear one would win, not clear
                there are damages to be won, or that anyone would pay them.

                Tibor
              • Ld. Robin Gallowglass
                ... I disagree with you, so I guess we re going to have to agree to disagree. ... Personally, being a copyright holder that has had his work infringed on many
                Message 7 of 26 , Mar 2, 2006
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                  On Thursday 02 March 2006 11:59, Mark Schuldenfrei wrote:

                  > 1. There is a Fair Use exemption here.

                  I disagree with you, so I guess we're going to have to agree to disagree.

                  >
                  > 2. Even if the end result is to violate a copyright or if one of the
                  > copyright holders wants you to THINK that there is - they will
                  > send a cease and desist letter, and it can be taken down.

                  Personally, being a copyright holder that has had his work infringed on many
                  times, albeit inadvertently due to lack of understand of copyright, I like to
                  err on the side of not doing anything that can potentially be a copyright
                  violation. But that's me :)

                  >
                  > 3. No one in their right mind would litigate this, even as a
                  > copyright holder - it is not clear one would win, not clear
                  > there are damages to be won, or that anyone would pay them.

                  That's not a risk I'd be willing to take. Anybody can sue anybody for what
                  ever reason, no matter how ridiculous. There are many, many examples of it,
                  as you more than likely know.

                  >
                  > Tibor
                  >

                  Robin
                • Don Eisele
                  ... If commercial use or interest was the only factor, the RIAA/MPAA wouldn t sueing nearly as many people as they are right now. I think you are trying to use
                  Message 8 of 26 , Mar 2, 2006
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                    >The author has rights, which he or she can sell, waive or keep. If
                    >the article appears in a magazine, there is obviously (hopefully) a
                    >legal agreement between the two parties giving the right to make
                    >copies to the magazine. Perhaps even assigning the entire copyright
                    >to the magazine. Or something in between.
                    >
                    >But, for purposes of fair use, it does not matter at all who holds
                    >the copyright - only what your use of it is for, and what your use
                    >does to their commercial rights.
                    >
                    >In this case, there is ZERO commercial use or interest.

                    If commercial use or interest was the only factor, the RIAA/MPAA wouldn't
                    sueing nearly as many people as they are right now.

                    I think you are trying to use the educational/research clause to justify
                    posting. I have two thoughts:
                    1. This forum is not an educational institution
                    2. What "research" goal is obtained by distributing it out to everyone on
                    the list.

                    Compare:
                    1. Single person going to a library, getting a copy of the article through ILL
                    (covers educational institution as it's a library, covers a single person
                    doing research)
                    2. Publishing an entire article to an entire email list.

                    >3. No one in their right mind would litigate this, even as a
                    > copyright holder - it is not clear one would win, not clear
                    > there are damages to be won, or that anyone would pay them.

                    Very true that someone won't get sued over this. The magazine wouldn't
                    want the bad press. However.. the MPAA/RIAA *has* won cases like this,
                    so there must be someone willing to litigate.


                    --
                    Don Quixote -- quixote@... http://toysmakeuspowerful.com
                    "I ought not to let my mind wander, as it's too small to go off by itself"
                  • Mark Schuldenfrei
                    ... True. But what they are doing is not based upon copyright, but DMCA, which doesn t apply to the printed media we are talking about. :-) ... It isn t? Oh,
                    Message 9 of 26 , Mar 2, 2006
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                      > If commercial use or interest was the only factor, the RIAA/MPAA wouldn't
                      > sueing nearly as many people as they are right now.

                      True. But what they are doing is not based upon copyright,
                      but DMCA, which doesn't apply to the printed media we are talking
                      about. :-)

                      > I think you are trying to use the educational/research clause to justify
                      > posting. I have two thoughts:
                      > 1. This forum is not an educational institution

                      It isn't? Oh, drat, I wanted to learn something.

                      > 2. What "research" goal is obtained by distributing it out to everyone on
                      > the list.

                      Teaching more about how to do medieval woodworking, I guess.
                      Unless that is educational. :-)


                      > Compare:
                      > 1. Single person going to a library, getting a copy of the article
                      > through ILL
                      > (covers educational institution as it's a library, covers a single
                      > person
                      > doing research)
                      > 2. Publishing an entire article to an entire email list.

                      They are different. But are they different enough to transcend
                      categories? I contend not.

                      > Very true that someone won't get sued over this. The magazine wouldn't
                      > want the bad press. However.. the MPAA/RIAA *has* won cases like this,
                      > so there must be someone willing to litigate.

                      Again, totally different issue related to DMCA. And they actually
                      very rarely win, but often settle. From a friend of mine's web
                      log - he's a professional in issues of media, rights and law, as
                      well as an SCA person: ""The DRM, incompatibility and lawsuits" is a lot
                      like a media generated "crime wave." It is getting reported more, but
                      without any follow up on how customers respond and how lawsuits get
                      tossed out."

                      He wrote that 2/28/06. I trust his opinions, even casual ones,
                      since he also does things like testify before government committees
                      and so forth.

                      Tibor
                    • James Winkler
                      ... as everybody has stated that they aren t lawyers... ergo, none of this constitutes legal advise or council , let s call this exchange what it is... a
                      Message 10 of 26 , Mar 2, 2006
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                        Winking smiley emoticon  ... as everybody has stated that they aren't lawyers... ergo, none of this  constitutes 'legal advise or council', let's call this exchange what it is...  a fundamentally emotional outflow of frustration over the mess that the 'New Millennium Copyright Law' put us in...
                         
                        If we're going to site "friends in the profession" let's give name and contact for validation... otherwise its just a 'friend of a friend of somebody I met in a bar one day"... 
                         
                        As to whether to publish or not... that is up to the poster and the list owner...  they're the one's who ultimately must answer the question...
                         
                        Chas.
                      • Mark Schuldenfrei
                        ... Digital Millennium Copyright Act. :-) We say that we are not lawyers, before we opine on law, for two reasons. One is that practicing law without a
                        Message 11 of 26 , Mar 2, 2006
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                          > Winking smiley emoticon ... as everybody has stated that they aren't
                          > lawyers... ergo, none of this constitutes 'legal advise or council',
                          > let's call this exchange what it is... a fundamentally emotional
                          > outflow of frustration over the mess that the 'New Millennium Copyright
                          > Law' put us in...

                          Digital Millennium Copyright Act. :-)

                          We say that we are not lawyers, before we opine on law, for two
                          reasons. One is that practicing law without a license is illegal,
                          so it is important to clarify that you are not doing so. The other
                          is because I don't want people to give my words more (or less)
                          weight than they are due.

                          What it doesn't mean is that people are stupid or ignorant. :-)

                          > If we're going to site "friends in the profession" let's give name and
                          > contact for validation... otherwise its just a 'friend of a friend of
                          > somebody I met in a bar one day"...

                          Sigh. He did not render this opinion as a legal opinion, and it
                          wasn't in a context of professional privilege. I happen to believe
                          him, and he's very good. So, take this as "very knowledgeable person
                          speaking off the cuff.

                          Harold Feld, whose professional expertise can be found here.
                          http://www.mediaaccess.org/about/people/index.html

                          Please do not hold it against him that he is also Yaakov ha
                          Mizrachi, and one of the best damned Poeta Atlantia's I have
                          met... Or any sort of SCA poet.

                          This was not a sock monkey, my friend. :-)

                          Tibor
                        • Don Eisele
                          ... http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-b.html Educational purposes means: * non-commercial instruction or curriculumbased
                          Message 12 of 26 , Mar 2, 2006
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                            >> I think you are trying to use the educational/research clause to justify
                            >> posting. I have two thoughts:
                            >> 1. This forum is not an educational institution
                            >
                            >It isn't? Oh, drat, I wanted to learn something.
                            >
                            >> 2. What "research" goal is obtained by distributing it out to everyone on
                            >> the list.
                            >
                            >Teaching more about how to do medieval woodworking, I guess.
                            >Unless that is educational. :-)

                            http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-b.html

                            "Educational purposes" means:
                            * non-commercial instruction or curriculumbased teaching by educators to students at nonprofit educational institutions
                            * planned non-commercial study or investigation directed toward making a contribution to a field of knowledge, or
                            * presentation of research findings at non-commercial peer conferences, workshops or seminars.



                            --
                            Don Quixote -- quixote@... http://toysmakeuspowerful.com
                            "I ought not to let my mind wander, as it's too small to go off by itself"
                          • Mark Schuldenfrei
                            ... I think you misunderstood what you are referencing. That very useful source (which I have read and seen before) has a Chapter on a particular industry
                            Message 13 of 26 , Mar 2, 2006
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                              > http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-b.html

                              I think you misunderstood what you are referencing. That very useful
                              source (which I have read and seen before) has a Chapter on a particular
                              industry agreement that applies to institutions of higher learning.

                              That chapter, which you cite, defines who it applies to and how to
                              define an institution of higher learning, and what subsets of fair
                              use the industry has generally agreed are completely free and clear.

                              Or, as it says elsewhere:
                              Since the current copyright law was adopted, various organizations and
                              scholars have established guidelines for educational uses. These
                              guidelines are not part of the Copyright Act. However, the guidelines
                              establish the standards for uses and copying in education. These
                              guidelines, as well as other regulations and rules regarding
                              educational uses are summarized in Chapter 7, which deals with
                              academic and educational permissions.

                              But it is a subset of such rights, not an exclusive list of all
                              available rights. For that, there is a different chapter of that
                              book, Chapter 9, found here:
                              http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html

                              I think you misunderstood the point of that publication.

                              (For the student - was your quotation of that web site a violation
                              of fair use? Is mine?)

                              Tibor
                            • Michael Houghton
                              Howdy! ... That s incomplete. The proposed action would be the republication of the entire article in a manner that is not clearly limited to nonprofit
                              Message 14 of 26 , Mar 2, 2006
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                                Howdy!

                                On Thu, Mar 02, 2006 at 11:00:40AM -0500, Mark Schuldenfrei wrote:
                                > > > What weight would the "Fair Use Exception" have in
                                > > > your analysis?
                                > > > Tibor
                                >
                                > > None. I think 'Fair Use' would be the 'copy for your
                                > > own personal use' example.
                                >
                                > I am not an attorney, and have no specific expertise. But my
                                > plain reading of the law says to me that you are mistaken:
                                >
                                > ===================
                                > § 107. Limitations on exclusive rights: Fair use
                                >
                                > Notwithstanding the provisions of sections 106 and 106A, the fair use of
                                > a copyrighted work, including such use by reproduction in copies or
                                > phonorecords or by any other means specified by that section, for
                                > purposes such as criticism, comment, news reporting, teaching (including
                                > multiple copies for classroom use), scholarship, or research, is not an
                                > infringement of copyright. In determining whether the use made of a work
                                > in any particular case is a fair use the factors to be considered shall
                                > include —
                                >
                                > (1) the purpose and character of the use, including whether such use is
                                > of a commercial nature or is for nonprofit educational purposes;
                                >
                                > (2) the nature of the copyrighted work;
                                >
                                > (3) the amount and substantiality of the portion used in relation to the
                                > copyrighted work as a whole; and
                                >
                                > (4) the effect of the use upon the potential market for or value of the
                                > copyrighted work.
                                >
                                > The fact that a work is unpublished shall not itself bar a finding of
                                > fair use if such finding is made upon consideration of all the above
                                > factors.
                                > ===================
                                >
                                > In this case the purpose is non-commercial, is research only, is just
                                > one article from a magazine, and doesn't have a substantial impact
                                > upon the market value of the magazine.

                                That's incomplete.

                                The proposed action would be the republication of the entire article in
                                a manner that is not clearly limited to nonprofit educational purposes
                                as, say, distributing a limited number of copies to students in a class.
                                Further, that republication could be seen as gutting the potential
                                market for reprints of that article.

                                I think that makes a strong argument that the proposed action does not
                                fall under "fair use".
                                >
                                > Whether the commercial nature of Yahoo and advertising affects this,
                                > I cannot say.
                                >
                                > I'd put it up.

                                I wouldn't.

                                yours,
                                Herveus

                                --
                                Michael and MJ Houghton | Herveus d'Ormonde and Megan O'Donnelly
                                herveus@... | White Wolf and the Phoenix narrowwares
                                Bowie, MD, USA | http://whitewolfandphoenix.com
                                Proud member of the SCA Internet Whitewash Squad
                              • Eric
                                I am not a lawyer, nor do I play one on TV... I would argue that this board could be construed as a non-commercial peer conference, workshop or seminar. But
                                Message 15 of 26 , Mar 2, 2006
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                                  I am not a lawyer, nor do I play one on TV...

                                  I would argue that this board could be construed as a "non-commercial
                                  peer conference, workshop or seminar.

                                  But to be on the safe side, an intro should be written to frame the
                                  article into our area of interest with perhaps a referrence to an
                                  extant example and then insert the specific parts of the article that
                                  would be important to us. With ample credit given to the article's
                                  source, I would not think that there would be a problem.

                                  If anyone with rights to the work disagreed, the posting could be
                                  removed.

                                  Eirikr Mjoksiglandi
                                  Ulfsvikings, Barony of Angels, Caid

                                  --- In medievalsawdust@yahoogroups.com, Don Eisele <quixote@...> wrote:
                                  >
                                  > >> I think you are trying to use the educational/research clause to
                                  justify
                                  > >> posting. I have two thoughts:
                                  > >> 1. This forum is not an educational institution
                                  > >
                                  > >It isn't? Oh, drat, I wanted to learn something....
                                  > >
                                  http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-
                                  b.html
                                  >
                                  > "Educational purposes" means:...
                                  > * presentation of research findings at non-commercial peer
                                  conferences, workshops or seminars.
                                  >
                                • Mark Schuldenfrei
                                  ... Tay.... ... It is nonprofit in the sense that no one here is charging. Are reprints available? Tibor PS Secret Cryptic Message - Liverpole Says Hi
                                  Message 16 of 26 , Mar 2, 2006
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                                    > That's incomplete.

                                    'Tay....


                                    > The proposed action would be the republication of the entire article in
                                    > a manner that is not clearly limited to nonprofit educational purposes
                                    > as, say, distributing a limited number of copies to students in a class.
                                    > Further, that republication could be seen as gutting the potential
                                    > market for reprints of that article.

                                    It is nonprofit in the sense that no one here is charging.

                                    Are reprints available?

                                    Tibor

                                    PS Secret Cryptic Message - "Liverpole Says Hi"
                                  • Michael Houghton
                                    Howdy! ... The fact that the infringer is not profiting from the infringement does not make it not infringement . ... I don t know. The question is
                                    Message 17 of 26 , Mar 2, 2006
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                                      Howdy!

                                      On Thu, Mar 02, 2006 at 01:19:27PM -0500, Mark Schuldenfrei wrote:
                                      > > That's incomplete.
                                      >
                                      > 'Tay....
                                      >
                                      >
                                      > > The proposed action would be the republication of the entire article in
                                      > > a manner that is not clearly limited to nonprofit educational purposes
                                      > > as, say, distributing a limited number of copies to students in a class.
                                      > > Further, that republication could be seen as gutting the potential
                                      > > market for reprints of that article.
                                      >
                                      > It is nonprofit in the sense that no one here is charging.

                                      The fact that the "infringer" is not profiting from the infringement
                                      does not make it "not infringement".
                                      >
                                      > Are reprints available?
                                      >
                                      I don't know. The question is orthogonal to the fair use question.
                                      >
                                      > PS Secret Cryptic Message - "Liverpole Says Hi"
                                      >
                                      ahhh...

                                      yours,
                                      Herveus
                                      --
                                      Michael and MJ Houghton | Herveus d'Ormonde and Megan O'Donnelly
                                      herveus@... | White Wolf and the Phoenix narrowwares
                                      Bowie, MD, USA | http://whitewolfandphoenix.com
                                      Proud member of the SCA Internet Whitewash Squad
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