Andrew,
When you are the only one who thinks your position on copyright is
correct, and *everyone* else is telling you "No, you're fundamentally
misunderstanding the case law involved," I submit that it might be wise
to stop and consider the possibility that you may be wrong in your
understanding. And by the way:
On 11/14/2012 01:40 AM, Andrew Thule wrote:
It's been hinted that because I stand alone in my defence, against
so many, clearly I must be wrong. This, of course, is the fallacy
argumentum ad populum. The number of people who believe something to
be true, has no bearing on the truth of the belief. In human
history, there was a time when only a single person believed the
world was round rather than flat. There was also a time when only a
single person believed the messiah (though King) would be killed and
rise on the third day. Sometimes it takes a single dissenting voice,
to correct popular misconceptions however bleak the odds.
This would only be a fallacy if I was asserting that because you are the
only one who believes this position, you *must* logically be wrong.
However, I am asserting that you would be *wise to consider carefully*
the possibility that you might indeed be wrong. (And by the way, you are
completely INCORRECT in asserting that "there was a time when only a
single person believed the world was round rather than flat" if you are
referring, as I think you are, to Christopher Columbus. In fact, most of
his detractors also believed the world was round, and knew that the
distance to India was too great for Columbus's proposed voyage to
succeed: he would run out of food and other vital supplies before
reaching his destination. Columbus believed that the distance was about
25% less than his destractors said it was, and argued that he would be
able to carry enough supplies. As it turned out, Columbus' detractors
were actually CORRECT: had he not had the extreme good fortune to bump
into a totally unsuspected land mass that neither he nor his detractors
knew about, he and his men would have starved before reaching India. See
http://www-spof.gsfc.nasa.gov/stargaze/Scolumb.htm and
http://en.wikipedia.org/wiki/Myth_of_the_Flat_Earth for more details.)
And getting back to the relevant point, you are indeed wrong in your
understanding of fair use doctrine in the US. You assert the following
two defenses:
On 11/14/2012 01:40 AM, Andrew Thule wrote:
1. This module falls within the provisions of section 107 of the
Copyright Act, and therefore constitutes 'fair use'
2. Independent, and in addition to this, the use of Copyrighted work in
the case of derivative works is permitted.
On point one, fair use doctrine in the US relies, as you know, on four
factors: the nature of the use (including commercial vs. non-commercial
use), the nature of the copyrighted work (facts are not copyrightable),
how much of the copyrighted work is used (copying substantial portions
weakens fair use defense a LOT), and the effect of the use on the market
value of the original work (this one is where your assertion of fair use
would fail utterly in court).
And by the way, you should be aware that non-commercial use is NOT a
clear defense in fair use doctrine. See L.A. Times v. New Rebublic
(http://www.law.uh.edu/faculty/cjoyce/copyright/release10/losangt.html)
where the website freerepublic.com was copying L.A. Times articles
wholesale for the purpose of allowing people to engage in political
commentary on them. Relevant quotes:
"the mere fact that a use is educational and not for profit does not
insulate it from a finding of infringement, any more than the commercial
character of a use bars a finding of fairness" (three different cases
are cited in support of this, so I won't quote them all; you can find
them easily enough with a text search.)
"even copying for noncommercial purposes may impair the copyright
holder's ability to obtain the rewards that Congress intended him to
have" (Sony Corp. of America v. Universal City Studios, Inc., 464 U.S.
417, 452, 78 L. Ed. 2d 574, 104 S. Ct. 774 (1984))
"while other factors in the fair use calculus may not be sufficient by
themselves to preclude the fair use defense, . . . excessive copying
precludes fair use" (Walt Disney Prods. v. Air Pirates, 581 F.2d 751,
758 (9th Cir. 1978))
"the concept of a 'transformative use' is central to a proper analysis
under the first factor." (American Geophysical Union v. Texaco, Inc., 60
F.3d 923 (2d Cir. 1995))
"'the more critical inquiry under the first factor and in fair use
analysis generally is . . . whether and to what extent the new work is
transformative,'" not whether the use is commercial." ( Castle Rock
Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 142 (2d
Cir. 1998))
And one final quote, from the LA Times v. New Republic case itself:
"Here, the court has found that defendants' copying of plaintiffs'
articles is minimally, if at all, transformative. The comments of the
individual who posts an article generally add little by way of comment
or criticism to its substance. The extent of the copying is more than is
necessary to foster the critical purpose it is designed to serve.
Because the copying is verbatim, encompasses large numbers of articles,
and occurs on an almost daily basis, the evidence supports a finding
that defendants (and visitors to the Free Republic page) engage in
extensive, systematic copying of plaintiffs' works.
Weighed against the essentially non-transformative nature of defendants'
use is the fact that they do not directly derive revenue or profit from
the posting of plaintiffs' articles, and the fact that their operation
of the Free Republic website has many characteristics of a non-profit
venture. So too, their use of plaintiffs' articles appears to be
intended more for public benefit than for private commercial gain.
Since the "central purpose" of the inquiry on the first fair use factor
is to determine "whether the new work merely 'supersede[s] the objects'
of the original creation, . . . or instead adds something new" (
Campbell, supra, 510 U.S. at 579), the court finds that the
non-transformative character of the copying in this case tips the scale
in plaintiffs' favor, and outweighs the non-profit/public benefit nature
of the purpose for which the copying is performed. This is particularly
true since the posting of plaintiffs' articles to the Free Republic site
amounts to "systematic . . . multiplying [of] the available number of
copies" of the articles, "thereby serving the same purpose" for which
licenses are sold or archive charges imposed. [*54] See American
Geophysical, supra, 60 F.3d at 924. The first fair use factor thus
favors plaintiffs."
As you can see, the non-commercial use of a work, even for educational
purposes, is not a sufficient defense in fair use doctrine if the work
is copied wholesale. And the "transformative" term above does not refer
to changing material from one format to another, as a non-lawyer might
reasonably assume, but rather to a very specific concept, that the use
"must employ the quoted matter in a different manner or for a different
purpose from the original. [...] Transformative uses may include
criticizing the quoted work, exposing the character of the original
author, proving a fact, or summarizing an idea argued in the original in
order to defend or rebut it. They also may include parody, symbolism,
aesthetic declarations, and innumerable other uses." Note that simply
reproducing the original work in a different format (electronic form vs.
printed matter) would NOT count as a transformative use under this doctrine.
(See http://en.wikipedia.org/wiki/Transformativeness and
http://en.wikipedia.org/wiki/Derivative_work#Transformativeness and the
various cases cited there for more details on transformativeness
doctrine; if I were to go into all the cases on how your use of the DJD
translations, verbatim, would NOT be transformative enough to be a
legitimate "derived work" under US case law, this email would become
even longer than it already is.)
Andrew, I understand that you have the best of intentions and want to
honor the law in your actions. However, given that there are many people
who are informing you that you are in violation of the law despite your
good intentions, I have to ask you: are you a copyright lawyer? If not,
have you consulted a copyright lawyer about whether what you're doing is
permitted under US law? (I'm assuming that US law is what applies to
you; if not, substitute Canada or whatever country you live in for US in
the above question.) Because I am VERY much concerned that you are in
serious violation of copyright law without knowing it -- but ignorance
of the law is not a defense that US courts ever accept. Please, PLEASE,
talk to an expert and LISTEN TO HIS OPINION, even if it's completely the
opposite of what you had previously believed was true.
In Him,
Robin Munn
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