[PLUG-TALK] Fair Use, etc.

[Jeme A Brelin]

On Thu, 21 Mar 2002, Dylan Reinhardt wrote:
> > I'm not talking about the 9th circuit's ruling in the Napster case. I'm
> > talking about the 9th Circuit's decision in the Diamond case 
> 
> Aha.  Thanks for the clarification.  
> 
> The Rio case is also irrelvant, in that it deals with copies made for
> private usage.  If you want to rip a CD you bought so that you can
> listen to it on your MP3 player, that seems highly reasonable.

It's called media shifting and it's always a non-infringing act.  Look it
up.

> Making a VHS copy of a tape that was broadcast on TV is dubious, but
> probably justifiable.

Not AT ALL dubious.  It's called time shifting and it's also a
non-infringing act.  Look it up.

> Making multiple copies of that tape and distributing them to your
> friends is a whole different ball of wax.

Again, we go back to the nature of the fair use tests... I'll come to it
in a moment.

> > No relevance? My entire point is that the argument can be made and law
> > exists to support it.
> 
> And that entire train of thought was irrelevant.  Interesting, no
> doubt, but utterly lacking in legal significance.  A legal argument is
> only relevant if it has won in a significant court ruling.  Until
> then, it's just fancy words... interesting, perhaps, but holding
> little or no legal value.

Um, bullshit.  Utter bullshit.

It's called a legal theory and if it had no value, courts wouldn't listen
to them and there wouldn't be so goddamn many law journals in the
world.  In fact, the legal theories in reviews often carry more weight
than precedent or tradition.

> > There's no caselaw to PROVE either side.
> 
> You mean, aside from the Supreme Court rulings I cited and several
> others besides?

Right... none of the cases you cited say that ALL copies made that fail to
meet ALL FOUR considerations are infringement.  There is no such case
because fair use considerations MUST be considered case by case.

> > There are plenty of laws that don't stick around due to 
> > unenforceability. 
> 
> Such as?  

As I stated in my previous email, the Communications Decency Act.

> > Simply put, though, the historical interpretation of copyrights since
> > the 1790 Statute of Anne has been an exclusive right to commercial 
> > distribution of a work. 
> 
> Such a clear cut statement of opinion and yet no citations to back it
> up.

I defy you to find a case of private, non-commercial copying that has been
declared infringement before 1976.

> > Infringement suits for non-commercial use have only existed in the
> > past twenty-five years.
> 
> More opinions without facts.  Show me the cites.

Now you're asking me to prove a negative... How can I show you cites for
cases that DON'T EXIST?

There were no non-commercial infringment suits before 1976.  What kind of
cite do you want for that?

> > except in a very few clear-cut cases, an individual has  plausible
> > deniability that an action was commercial or promotional.
> 
> Hate to break it to you, but "plausible deniability" is not a great
> legal defense.

"Plausible deniability" is absolutely adequate defense for a criminal
case.  That's why we have the phrase "reasonable doubt".  Plausible
deniability begets reasonable doubt.

> In any event, it doesn't get to the real issue, which is whether what
> you're doing is legal.

It's not whether or not it's legal, but whether or not it's illegal.

The law is a list of DONTs, not CANs.

> As to your lengthy analysis of Article I, Section 8... yikes.  You
> take an extremely rigid, literalist interpretation of the
> Article--which is fine--but then proceed to interpret the First in
> very broad terms.  If you're going to claim that Article 8 only covers
> *science* writing, then have the consistency to note that the First
> covers *speech* and remains silent on the question of entitlement to
> someone else's creative output.  Go ahead and be a literalist, but not
> just when it suits you.

I think you'll find that there is a strong tradition of interpreting
restrictions literally and freedoms broadly.

> The reason there are so few citations to support your position is
> because you made it up.

I didn't make up the fact that the four important factors to a fair use
claim are not four hard tests that must ALL be satisfied.  I was rebutting
your claim to the contrary.

>  Real decisions are rare because real arguments are rare.

No, real decisions are rare for the reasons I stated previously.  
Copyright holders don't bring cases against individuals because they will
lose and they get much more mileage out of fear and misdirection.

> > Consider parody, satire and political commentary. 
> 
> Totally irrelevant.  We're discussing your desire to copy a
> documentary, not your interest in writing a satirical essay about it.  
> Incidentally, there are limits to parody too... but we do give it
> tremendous legal leeway.

No, not irrelevant!  We're discussing whether or not all four parts of
your test are required to be met in order for fair use to be claimed.

> > Space shifting, time shifting, and media shifting are all unauthorized 
> > copies of entire copyrighted works and there are dozens of citations 
> > that show the court's respect for their legality.
> 
> Those are reasonable, but mostly untested arguments.

What?  Space shifting, time shifting, and media shifting were the primary
fair uses used in the Betamax case and the Diamond case.  They are NOT
untested.

> Indeed, were they already rights, there would be no need to codify
> them as many activists (http://www.digitalconsumer.org/bill.html) are
> hoping to do.

The activists are hoping to codify them so they can rebutt folks like you
who insist on having everything pointed out to them and so that the
entertainment industry cannot make liberal interpretations of restrictive
legislation, carry out threats of unsustainable threats of legal action,
and generally cow the population based on spurious claims of broad
control.

> Anyway, we're not talking about that, but about *quantity* shifting,
> which is totally different.

I don't think scale matters one bit.

Why hasn't the RIAA brought suits after Napster?  It's because legally
they haven't a leg to stand on.

> > The profit motive is too strong and leads immediately to the
> > destruction of the individual liberties of all for the sake of the
> > profit of the few.
> 
> Whatever you say, Karl.

Hegbloom?  I don't get it.

> Frankly, I'm happy giving up my "right" to steal a copy of Revolution
> OS if that makes it more likely that someone will actually go to the
> trouble of *making* it and finding a way to sell me a ticket to it.  

Well, you can choose language like "steal" and presuppose ownership and
privatization of mere information and claim that the highest motivation to
which a person can appeal for encouragement is greed and lust for power...
me, I prefer to listen to folks like Thomas Jefferson, who wrote the
following:

"That ideas should freely spread from one to another over the globe, for
the moral and mutual instruction of man, and improvement of his condition,
seems to have been peculiarly and benevolently designed by nature?and like
the air in which we breathe, move, and have our physical being, incapable
of confinement or exclusive appropriation.  Inventions then cannot, in
nature, be a subject of property."

> There is nothing to bicker about ownership of until someone goes to
> the trouble of creating it.  THAT, my friend, is the purpose of
> exclusive rights for a limited time... to enrich all by ensuring that
> those who go to the trouble of making things don't see them
> immediately stolen.

How is enrichment of the few enrichment of all?  The enrichment of all
only comes by ensuring that ALL have access to the new information.  
Markets require scarcity and scarcity of information is not a benefit to
all.  Information markets are enriching only of the few and a hinderance
to the instruction of mankind.

> You stand athwart more than a century of history and legal theory, my
> friend.

Oh, I stand athwart much more than that.  Believe you me.

> Your ideas may, in fact, be better.

I wouldn't have them unless I believed they were.

> But I await proof that they reflect the laws of the land we live in.  

How about, instead, adopting them as your ideas and working to change the
law of the land we live in should that law oppose these ideas?

> Perhaps they should be, and maybe one day you will convince us all of
> the error of our ways.  But until then, please realize that the law
> consists only of what is on the books and what is written in court
> decisions.  Fancy theories and impressive essays are not the law.

No, but they become the law.  And I am willing to stand up and make my
case when the time comes.  I will continue to privately make and
distribute copies of copyrighted works until the day that I am physically
barred from doing so.  And given the opportunity I will make the case that
it is both my moral and legal right to do those things.

I reject this notion of prior restraint based on broad and unsupportable
claims of infringment by copyright holders.

J.
-- 
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     Jeme A Brelin
    jeme at brelin.net
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 [cc] counter-copyright
 http://www.openlaw.org