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The Internet Media

What is Fair Use in the Digital Age? 199

Posted by Zonk
from the fair's-fair dept.
Hugh Pickens writes "General counsel for NBC Rick Cotton and Tim Wu, professor at Columbia Law school, continue their debate about copyright issues and technology on Saul Hansell's blog at the New York Times discussing Fair Use of commercial music and video as the raw materials for new creations. Cotton says that content protection on the broadband internet is really not a debate about fair use The fact that users can 'take three or four movies and splice together their favorite action scenes and post them online does not mean that these uses are fair. There needs to be something more — something that truly injects some degree of original contribution from the maker other than just the assembly of unchanged copies of different copyrighted works.' Wu's position is that 'it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use. This simple concept would bring much clarity to the problems of secondary authorship on the web.' This is a continuation of the previous discussion on copy protection."
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What is Fair Use in the Digital Age?

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  • by timmarhy (659436) on Wednesday January 16, 2008 @06:32PM (#22073344)
    If i've purchased a song, i should be able to use it anywhere,on anything and at anytime of my choosing for personal use, and i should be able to exchange my license to use this music with anyone else for a swap or money exactly like any other 2nd hand market.
    • by timmarhy (659436) on Wednesday January 16, 2008 @06:35PM (#22073406)
      oh and sampling for parody or amature non profit use should be allowed as well.
    • by MasterC (70492) <cmlburnett@gm[ ].com ['ail' in gap]> on Wednesday January 16, 2008 @07:21PM (#22073978) Homepage

      ...i should be able to exchange my license to use this music with anyone else for a swap or money exactly like any other 2nd hand market.
      Don't confuse fair-use with first-sale [wikipedia.org].

      First-sale is really quite natural. Copyrights are placed on a non-scarce resource to make them scarce. It would be absolutely ludicrous to purchase a shovel and not be able to sell it for whatever someone else is willing to pay for it. If copyright wants to push IP to equal footing (no pun intended) of shovels then you should be able to sell your iTune or CD for whatever anyone is willing to pay.

      The illusion that you can't/shouldn't/must not resell it is Big Media (TM) overencroaching on your rights. Fair use is but only one victim of DRM and first-sale is another.

      I could make a similar argument against software that can be licensed only once (Steam [wikipedia.org]: I'm looking at you!). MS products are another example of this.
    • Re: (Score:3, Informative)

      by cpt kangarooski (3773)
      That's great, but it has nothing to do with fair use. If you want that, get a specific statutory exception covering it.

      Also please n.b. that with the exception of downloaded music, ordinary consumers don't license music at all. The stupid software industry has just managed to screw up how people think of their rights in connection with works and the scope of protection the works enjoy.
    • So, if you purchase a song from an artist, and you happen to be a filmmaker, you should be able to use that purchased song in your hit movie without further compensation to the artists?

      It won't be popular here, but it's a perfectly reasonable position for the owner of a work to take that they are selling you the right to play their music, off of the CD, for your personal use only. It may not be a workable position in the ethos of today's market, but it's a position consistent with the rest of property and
      • by timmarhy (659436)
        what part of amature non profit don't you understand?

        making a film and selling it without paying for the soundtrack is compeltely different.

  • by garcia (6573) on Wednesday January 16, 2008 @06:35PM (#22073392) Homepage
    There is no difference in Fair Use rights in the "Digital Age". It's the same as it's always been. It's only because of the misinformation campaigns by the RIAA and MPAA that we have a society that's confused about the rights they have had for quite some time.

    Unfortunately, the sheep are easily swayed over time (the frog/boiling water deal I suppose). I'm not fooled and hopefully they won't be able to fool intelligent judges either. They might buy over Congress but someone needs to put their foot down and stick up for us.

    I'm tired of stories like this :(
    • Not just the RIAA (Score:4, Insightful)

      by EmbeddedJanitor (597831) on Wednesday January 16, 2008 @06:53PM (#22073614)
      The (ab)user side are also muddying the water. Consider the mashup DJs that release their own "creative works" on CD (which they then expect to have covered by copyright) or the hobbiest mashup artist that releases stuff on youtube etc. Is this fair use of the original material?

      I agree though that the digital age really makes no difference. The real change has been a shift is society's values. Me, me, me!

      • Consider the mashup DJs that release their own "creative works" on CD (which they then expect to have covered by copyright) or the hobbiest mashup artist that releases stuff on youtube etc. Is this fair use of the original material?

        Maybe. It's certainly transformative. Some mash-ups may use only portions of the works in question, further bolstering their position. As always, you can't make a blanket statement as to what is or isn't a fair use. Each specific case must be considered in light of its own circum
        • As always, you can't make a blanket statement as to what is or isn't a fair use.

          I'm not so sure. The copyright bargain is pretty simple in principle, and it's also pretty simple in principle to establish what (ethically speaking) we might regard as fair use.

          For example, I might make a blanket statement that an individual who has a legitimately obtained copy of a work should be free to use that work however they see fit in private for their own benefit, regardless of any literal copying or transformative editing involved.

          I might also make a blanket statement that it is reasonable

    • by garcia (6573) on Wednesday January 16, 2008 @06:54PM (#22073630) Homepage
      In addition, now that I've read the article again just because so many parts of it made sense and so many others just pissed me off more:

      Books begat films, character merchandising, giant fan guides, remix videos, fan art and other
      forms of secondary authorship that simply didn't exist 100 years ago.


      100 years ago we didn't have Disney fucking with Copyright then (the Mickey Mouse and Sonny Bono Protection Acts [wikipedia.org] only came about in 1976!) So for us to even bring that shit up in this modern discussion is nothing short of ridiculous.

      Let's face the facts here... Copyright has been extended to an unreasonable point so that nothing will ever enter the Public Domain so if anything is different in the "Digital Age" it's the fact that we're more fucked than ever before.

      Boo.
    • There is no difference in Fair Use rights in the "Digital Age". It's the same as it's always been. It's only because of the misinformation campaigns by the RIAA and MPAA that we have a society that's confused about the rights they have had for quite some time.

      Someone didn't read the article :-) To quote Rick Cotton (the bad guy):

      Fair use in the digital age is the same as fair use in the non-digital age.

      First of all, as Mr. Cotton duly notes, and as we often hear here on /., there is no such thing as a fa

      • Re: (Score:3, Informative)

        by j0nb0y (107699)
        By that logic, self defense is not a Right because it is only a defense against a battery charge.

        Self defense is a Right, and so is fair use. I'm not sure where this fallacy originated, but it is ridiculous. Actually, I know where it originated. It originated with the RIAA.

        So why are /.ers parroting RIAA talking points?
        • by langelgjm (860756)
          Well, the truth lies somewhere between, I think. From what I understand, fair use is an "affirmative defense." Sure, you can be charged with murder, but if it's found to be self-defense, you won't be guilty of murder. On the other hand, as I understand it, to invoke fair use, you have to admit to copyright infringement - thus the "affirmative" part. You are saying you ARE guilty, but you should be granted an exception. Self-defense is disputing the charge that you are guilty of anything in the first place.
          • by langelgjm (860756) on Wednesday January 16, 2008 @07:28PM (#22074062) Journal

            Sorry to reply again, but this [eff.org] might be of interest:

            5. Is Fair Use a Right or Merely a Defense? Lawyers disagree about the conceptual nature of fair use. Some lawyers claim that fair use is merely a defense to a claim of copyright infringement. Although fair use is often raised as a defense, many lawyers argue that fair use can also be viewed as having a broader scope than this. If fair use is viewed as a limitation on the exclusive rights of copyright holders, fair use can be seen as a scope of positive freedom available to users of copyrighted material. On this view, fair use is the space which the U.S. copyright system recognizes between the rights granted to copyright holders and the rights reserved to the public, where uses of works may or may not be subject to copyright protection. Copyright law gives the decision about whether copyright law applies to a particular use in this space to a Federal Court judge, to decide after weighing up all relevant factors and the underlying policies of copyright law.
          • by j0nb0y (107699)
            You're right, it is an affirmative defense. But you misunderstand affirmative defenses. Both self defense and fair use are affirmative defenses, but you don't have to admit to the crime to use the defense. Lawyers are allowed to argue in the alternative. Claiming self defense (or fair use) does not surrender anything to the prosecution (or plaintiff). The prosecution must still prove their case to get a guilty verdict.

            Let us also remember that the Government cannot grant us Rights. All of us have Righ
            • by langelgjm (860756)

              Let us also remember that the Government cannot grant us Rights. All of us have Rights naturally. The government can only protect them. They can infringe on our Rights, but they can never take them away.

              I won't comment on the legal portion of your post, since I'm not well-informed in that area. This part, however, I must take issue with. The government can indeed grant rights - e.g., copyright! What you're talking about are natural rights (or "certain inalienable rights").

        • Re: (Score:3, Informative)

          Self-defense is not a right. It's an affirmative defense. Sibling poster is slightly confused in use, but not in content.

          If you plead self-defense, you are pleading that you DID murder the person, but you shouldn't be punished for it because there were exonerating circumstances (namely that person was a threat to your own safety).

          Fair use is similar. You argue that you DID copy the material without the owner's permission, but that there are exonerating circumstances that make it acceptable.
          • by j0nb0y (107699)
            I am well aware of how affirmative defenses work.

            Just because something works as an affirmative defense in court does not mean that it is not a Right.

            I have the Right to defend myself.
            And I have the Right to fair use of copyrighted works.

            You should also note that lawyers in this day and age are allowed to plead in the alternative. This means that a lawyer could argue both that his client didn't commit the crime, and that his client should be acquitted because he was acting in self defense. Whether or not
            • Re: (Score:3, Interesting)

              Except that self-defense is not a right, and neither is fair use. Both concepts have little basis in law.

              Now, as to the legal concept of being allowed to plead in the alternative, you'll never see me doing that. It's a disgusting practice that I have never yet seen an honorable purpose for.

              Then again, I have a problem with plea bargaining in general, too, and only 2% of cases reach trial. So obviously my views are not well supprted in the judicial community.

              Ironically, I was reading the origins of the adver [oup.com]
              • by j0nb0y (107699)
                Self-defense is arguably similar. The state has a monopoly on the use of force

                It's clear that you and I have very different opinions on the proper role of government.
                • Perhaps. However, most of the western world supports of the view of the monopoly of force; the state is the singular entity that has the legal authority to kill or to authorize killings, and therefore has a monopoly on the use of force.

                  Some have argued otherwise for the United States, in that the second amendment provides for a militia counter to the govenrment, but I would argue that any rebellion is by definition an illegitimate use of force.
                  • by djp928 (516044)
                    You better not move to New Hampshire, Kentucky, Tennessee, or North Carolina then. The Right of revolution [wikipedia.org] is protected in the Constitution of those states.

                    Kentucky's constitution states: "All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property. For the advancement of these ends, they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in su
                    • The problem with all of the above is that they all specify inalienable rights, which are laughable constructs at the best of times.

                      There's no such thing, and there never can be. Society is nothing more than a mirror of the individuals within it. A government cannot survive without the population supporting it.

                      I'm not going to go into the founding documents of the United States, because they're not really relevant to this issue. But my opinion is (and always has been) that they're essentially rubbish in all
      • I strongly disagree.

        First, fair use is simply the principle that where an otherwise-infringing act is nevertheless fair, and in line with the overall goals of copyright, it is not infringing. I cannot imagine for the life of me what we would need to change about that.

        Second, fair use has never been "hashed out." It's an amazingly vague bit of law and it evolves all the time in response to new developments in society.

        If you think that there should be some other exceptions to copyright (such as a blanket pers
        • by langelgjm (860756)

          First, fair use is simply the principle that where an otherwise-infringing act is nevertheless fair, and in line with the overall goals of copyright, it is not infringing. I cannot imagine for the life of me what we would need to change about that.

          By change, I meant that what we would traditionally consider fair use should probably be expanded. That's not really changing the doctrine itself, just our understanding of what falls into the category, I suppose.

          Second, fair use has never been "hashed out." It'

          • By change, I meant that what we would traditionally consider fair use should probably be expanded.

            We really don't traditionally consider anything to be a fair use. Each specific use -- not type of use, but each specific _act_ -- is considered on its own merits. There have been parodies and satires that were not fair uses, quoting in news reporting that was unfair, etc.

            If you want to make certain classes of use non infringing, you want statutory exceptions. You don't want to screw around with fair use.
            • by David Rolfe (38)
              Hi there,

              I said this: http://slashdot.org/comments.pl?sid=419084&cid=22072294 [slashdot.org] in another thread, towards the end I say something like "when something is ruled fair use it's still infringing because it's an affirmative defense, but it's unpunishable". But, from one of your posts in this thread I think you said when something is judged fair use that it's actually found non infringing. Is this as in totally legit, not just infringing-but-ok? I'd appreciate if it you could set me straight on that post so I'
    • Re: (Score:3, Informative)

      by Shados (741919)
      There's misinformation on both sides. The amount of people who think that your right to a backup also includes making "backups" JUST IN CASE your nearest Blockbuster got broken into and had everything stolen, so you can be the hero and give em back copies of what they once had (/sarcasm) is pretty staggering, too.
      • But even renting a video from a store doesn't make studios money. It could be said that because they buy films it is harming the business, but for any studio, (or indeed the rental store) has little right to complain.
        • by adona1 (1078711)
          Actually, I read a few years back (back in the days of VHS!) that rental stores pay an exorbitant amount for their films, around the realms of $100 or so. That gives them the licence to rent the films out, something forbidden for regular licensees (or so the FBI warning tells me).

          No citation, and things may well have changed. Anyone have new info?
          • Didn't know anything about that. I was figuring they paid $10-$20 per copy and made money after the 2-4th rental. Or it could be $100 per title rather than copy (because even the small rental stores have 20 or so DVDs for every major release) because if it was $100 per copy it would take 10-40 rentals before it made a profit.
            • by Zerth (26112)
              Back when it was just VHS, rental tapes cost between 70-150 USD. After a while, Blockbuster made a deal with several companies to get them to trade the upfront cost for a percentage of fees. That way they could buy a huge number of copies up front, guarantee they were in stock, and still have the same $ investment in inventory.

              That's also the reason Blockbuster did that "no late fees, you bought it" crap recently, it was cheaper than sending people to collections.
          • Re: (Score:3, Informative)

            by cens0r (655208)
            In the past (when VHS first came out) a video tape was released and it was very expensive. So expensive that only video stores would purchase it. At a later date, a home version may have been released at a regular price. Of course, as the years went on more people wanted to buy tapes and the studios realized they could make more money by just releasing it to everyone. By the time DVD was out the two release dates was almost entirely phased out.
          • Re: (Score:2, Interesting)

            by tungstencoil (1016227)
            Offtopic, but here it goes...

            Back in the day, I worked for a "big video store" (putting myself through school) - this was strictly VHS days. For most movies, think hard... ever notice they hit the rental shelves before you could buy it at Target or Wal-Mart? That's because of the "exorbitant amount for their films" (and $100 is about right). This is how the studios ensured they made a good chunk of cash off of VHS even though there was a lot of rental (and never mind that eventually the big rental hou
          • by Dun Malg (230075)

            Actually, I read a few years back (back in the days of VHS!) that rental stores pay an exorbitant amount for their films, around the realms of $100 or so.

            This is correct. When movies were new releases, they were quite expensive.

            That gives them the licence to rent the films out, something forbidden for regular licensees

            Not true. You could buy a movie and rent it out to whomever you wished, for whatever price you wished. You require no special license to lend your property, a legitimate copy of a movie, to someone else, profit being the motive or not.

            (or so the FBI warning tells me).

            Where does the FBI warning say anything about loaning out individual legitimate copies of a movie? Read it again. Special licenses are required for things like public performance.

            No citation, and things may well have changed. Anyone have new info?

            Nothing new, but

          • I ran a chain of video stores back in those days. This actually was where the doctrine of First Sale was largely forged. Many of the studios tried to take the position that renting their videos was illegal. It was resolved in the courts that it wasn't. Many of the studios then hiked their prices even higher, to try and extract all the revenue from the business. This suppressed the number of rental outlets for a bit, and the studios (Paramount leading the way)finally figured out the concept of price ela
    • by curunir (98273) * on Wednesday January 16, 2008 @07:05PM (#22073756) Homepage Journal
      One thing I found interesting about the article is that the entertainment lawyer makes one good point while trying to make a point that is almost the opposite.

      From the article:

      But, as a technical legal matter, fair use is not a "right," a misconception and misstatement frequently made these days.
      While his point is that fair use is more of a privilege than a right, I think there's a much different interpretation of what he's saying that is important to consider.

      He's absolutely correct that fair use isn't a right, it's an exception. But it's an exception to the rights of the copyright holder. And this distinction is important because it underscores how entertainment companies misrepresent copyright. Rather than copyright defining the few excepted uses allowed to people/entities who don't hold the copyright, it actually defines the few rights granted exclusively to the copyright holder.

      And this is an important observation about the intent of copyright. Namely, that anything not explicitly granted to the copyright holder is permissible rather than forbidden. The big content producers would like copyright to be a limited set of things that we (those not producing the content) are allowed to do with their content, which they believe they own. But when defending our rights, it's important to remember that copyright is actually a limited set of things that we're not allowed to do and that content cannot be owned, only protected. And this is the principle that should be applied whenever something falls outside of what is explicitly stated in the Copyright Act...that everything not covered is allowed rather than forbidden.
      • He's absolutely correct that fair use isn't a right, it's an exception. But it's an exception to the rights of the copyright holder. And this distinction is important because it underscores how entertainment companies misrepresent copyright. Rather than copyright defining the few excepted uses allowed to people/entities who don't hold the copyright, it actually defines the few rights granted exclusively to the copyright holder.

        Huh? Copyright does no such thing - copyright defines the rights of the copyhol

      • Re: (Score:3, Interesting)

        by porpnorber (851345)

        Even more important to note is that there are no rights, only privileges. Guantanamo Bay proves this: in the view of the US Government, even the protections of the Constitution are there only insofar as the President feels like extending them. More broadly, if 'self defense' is a defense, or capital punishment is permitted, then there is clearly no inalienable right to life, even in legal fiction. (Outside of legal fiction, of course, you've always been able to smash someone over the head with a rock.)

        My p

    • Fair use rights have come under fire since some consumers have taken it upon themselves to extend fair use far beyond its limits, using the powers of their shiny new fast internet connections. The RIAA and the MPAA have just been pushing back. So, thanks to a mutual screwing over and a mutual abuse of power, we have a large mess over which we have to fight to redefine our rights. It's not just the **AA's fault, and pretending it is will just alienate the people who can reinstate your rights.
  • Fair use (Score:3, Insightful)

    by adona1 (1078711) on Wednesday January 16, 2008 @06:45PM (#22073510)
    My personal view on fair use is much the same as my view on downloading - fine if you do it for yourself or with no intention of profiting from it, but bad if you attempt to sell it, whether through burnt DVDs in the market or using clips from films/pictures/music to bring people to your revenue generating website, and so on.

    It's a yin and yang - downloading or fiddling around with videos or music may cost some sales, but it can also generate new fans, who will purchase when they otherwise wouldn't. So what if splicing 3 or 4 clips together doesn't have much artistic merit? That's a purely subjective call, and in this age, it seems that computer software is the popular artistic tool of choice.
    • So if I were, say, Mad Magazine, and I parodied a movie and sold copies of the magazine in which the parody was printed, you'd be against it? Or if I were a book critic and I quoted a book in my newspaper column, etc.? What if the review pans the book, causing it to flop in the marketplace?

      Just because you do it for profit, or it affects the economic value of the work used doesn't mean it isn't fair use. You need to look at the totality of the circumstances. The current test does a decent job of this.
      • by adona1 (1078711)
        Parody, reviews or analysis aren't really what I was referring to....I was meaning more online use (ie using a song as a background to a youtube video, posting a photo to your blog, even downloading a TV show). What you described would fall under traditional fair use, which I'm all for. I meant that for the uses I described (which generally don't fall under fair use) there should be much more leniency, unless the person infringing is attempting to somehow profit from it.

        I probably wasn't quite clear enough
    • This persistent idea I frequently see that for-profit use deserves less rights than non-profit use.

      If something is wrong to do for free, it's wrong to do for profit as well.

      Additionally, "fair use" is moronic. What I own is mine, and what you owe is yours. What I do with what I own, so long as it doesn't affect anyone, is no business of anyone. It is not the governments' job to guarantee a market for a business by outlawing normal use (ie copying and resale) of certain pieces of personal property.
    • Re: (Score:3, Informative)

      by 15Bit (940730)
      > My personal view on fair use is much the same as my view on downloading - fine if you do it for

      > yourself or with no intention of profiting from it, but bad if you attempt to sell it,
      > whether through burnt DVDs in the market or using clips from films/pictures/music to bring
      > people to your revenue generating website, and so on.

      And this pretty much used to be the police attitude to copying CD's - arrest the guys selling out the back of a van but leave joe public alone. This was a larg

    • It's a yin and yang - downloading or fiddling around with videos or music may cost some sales, but it can also generate new fans, who will purchase when they otherwise wouldn't.
      I see it the other way: if the copyright holder wants to allow sharing (for that extra profit), then they have to be the one to allow it.
  • The companies have money so they can take what they want without getting the million dollar lawsuit from Bob for taking his little music tune and putting it in their car advert.

    So I guess fair use re-defined for today would be asking yourself the question "Could you get into a lawsuit over this piece of IP?". I think that copyright is pretty difficult to judge in the first place.

    For example, this comment I am writing. If someone re-posts it, should I be able to sue them for infringing my copyright for re-di
    • by Goblez (928516)

      The companies have money so they can take what they want without getting the million dollar lawsuit from Bob for taking his little music tune and putting it in their car advert. So I guess fair use re-defined for today would be asking yourself the question "Could you get into a lawsuit over this piece of IP?". I think that copyright is pretty difficult to judge in the first place. For example, this comment I am writing. If someone re-posts it, should I be able to sue them for infringing my copyright for re-distributing my work. I gave you permission to read it only! When does a few lines of text become big enough to be said "Ok taking all this would be copyright infringement"? There is also a personal gripe I have which is the copyright blackhole. A game I really liked went bankrupt and all the code went down the copyright drain. No one owns it, but it is illegal to re-license, re-distribute, whatever because I am not the author. The author can't legally give it to me either because although he has the source, he doesn't own the IP to source, no one does.

      Infringement or reference?

    • If no one owns the IP, there's no one to sue you for infringing. If someone can sue you for infringing, then we have found the owner.

      There should be some sort of IP "salvage rights" or preferably lapse into the public domain. Since the IP is no longer owned, it makes sense that anyone should be able to use and re-use it at will.
    • by geekoid (135745)
      I think it would be a pretty strong argument that when the company goes away, it would revert back to the original owner.
      That said, if nobody owns it, you can't break copyright law because no one owns it.

      Copyright black hole is an illusion.
      • by corsec67 (627446)
        Copyright black hole is an illusion. That is because black holes distort light... ~
        (interesting punctuation idea...)

        One problem with "if the company is gone, you can copy it" is if someone else buys the company from the original owners. Thus, even though there is nobody to sue you now, doesn't mean that there will never be anybody that could sue you.
        (My business law knowledge is almost nil, so it should be easy to correct me here)

        Certainly, once a company is gone, their works should be in public domain.
      • The "copyright black hole" is very real from a technical standpoint.

        If Valve went away, who is going to let me download the Steam games I've purchased, but not installed? Who's going to unlock those games?

        There have been games which have pretty much completely disappeared, due to their own copy protection not being cracked while the company was still around, and requiring obsolete hardware/software (a real, physical floppy drive, the original floppy, and DOS) in order to run. Even if they are legally public
  • It's different to everyone. I suggest that fair use constitutes parody, abbreviated (less than half the content) in quotes, and where images or sounds are modified, upfront declaration that this has been done, no matter who the artist or the type of content is. Anything modified from its original should be declared, IMHO
    • But what reason to put "this content has been changed"? It is highly unlikely that someone will look at a parody and think it is the real thing and most editors put their name at the front. It also raises questions about how it should be done. If a TV show made in say Japan gets translated here and some content edited does it need a notice? Or will this be like the "this movie has been reformatted to fit your screen" to which people reply "duh!".
    • So you are against being able to time shift shows from the TV (thus killing Tivo) and against being able to space-shift music from a CD to another device (thus killing mp3 players)?

      Your view isn't just overly narrow (in fact it is also broader in some places than what is currently allowed), but is instead completely unrelated to what fair use currently is.

      There is no master list of fair and unfair uses. All the law says is that fair uses are lawful, and that a court can look at various circumstances regardi
      • All the law says is that fair uses are lawful

        Unfortunately, as I'm sure you're aware, that isn't quite true in many places today.

        The law in many places now says that a fair use does not infringe copyright, which isn't the same thing if other laws are also relevant.

      • I tend to side with what the courts have found. The problems remain about how long a copyright is good for, and if a modified work is a new work, and what are the mods and subsequent rights available to the modifier. It's all kind of nebulous and open to enriching lawyers, rather than consumers.
  • only using every other bit.
  • by Facetious (710885) on Wednesday January 16, 2008 @06:59PM (#22073682) Journal
    And how would we measure that? Adding content != adding value. Conversely, a new blend of old content can change the contents "feel," message, and/or meaning. I would love to see the "value matrix of subjective content."
    • > And how would we measure that? Adding content != adding value.

      Exactly.

      1) Sometimes "removing" content is adding value! (i.e. Star Wars 1 fan edits with less Jar-Jar)

      2) What determines "value"? Value is _arbitrary_ between people.
    • "And how would we measure that? Adding content != adding value"

      We could say the same re-releases of the same movie on a new format by corporations. The truth is, copyrights and "intellectual property" is a bunch of bullshit and needs to be strictly regulated.

      Real property was designed to solve problems of distrbution, scarcity, and living together in peace. Intellectual property is dangerous because in order to protect it, invasion of privacy, civil liberties and curtailment of freedom is necessary to 'ma
  • By his own example, splicing action scenes together could create value. What if they are action scenes of one particular type - showing how the same 'move' is applied in different films. Or, what if the action scenes create their own kind of poetry when put in to the right order. Maybe it shows how a genre has changed over time to reflect current morality. At the end of the day you end up with the same argument - what's fair use any way? If value is the only determining factor - then how do you measure valu
  • Who are they, or who is anyone to state that something is 'adding value', that's ENTIRELY subjective with something like this.

    There is no need what so ever to clarify 'fair use' any further than it already written in law, especially not when the 'clarification' proposed is clearly only to reduce the rights of the very people they were introduced to protect.
  • Anime Music Videos are perfect examples of fair use. You can take a speech from a comedy show, mix it with some scenes, and have a hilarious mix entitled "the flying car" [youtube.com]. A much more artistic example is "I must be dreaming" [youtube.com], which not only adds clips, but some special effects as well. Or if you like violence, how about a little Mortal Kombat [youtube.com] ?

    And last, but not least, AMV Hell 3: The Motion Picture [youtube.com] and AMV Hell 4: The last one [youtube.com]. Some of the clips there got me laughing for hours.

    What would be of Entertainment and creativity online if all the music and anime producers sued the AMV makers for copyright infringement? :(
  • Cotton is correct to argue that the simple ability to copy and manipulate digital data does not translate to fair use. We've had the capability to copy and make unlimted copies of printed data for centuries and that has never been considered fair use. You can't make special rules for data on one kind of medium versus another.

    Beyond that, Cotton is mostly wrong.

    Wu's "added value" position is wrong. Who is to determine if value has been added or eliminated? For that matter, what is "value"? If I copy a po
    • by zrq (794138)

      If I copy a popluar song, add 5 seconds of silence at the end and call it "added value", can I then sell it under my own name?

      No.

      If [commercial software company] takes the source code from a GPL licensed project, adds a few lines of their own, can they call it "added value" and sell it under a (closed source) commercial license ?

      Nope, can't do that either.

      • Re: (Score:3, Interesting)

        by reallocate (142797)
        How do the courts determine when an altered copy, of anything, represents "added value"?

        If the courts can do that, how, then, can they decide how to apportion the revenue from the altered copy?

        My fundamental problem with the notion of added value is that it is an "in the eye of the beholder", "he says, she says", kind of opinion. In practical terms, no one is likely to tell a court that his altered copy removes value.
    • Cotton is correct to argue that the simple ability to copy and manipulate digital data does not translate to fair use.

      Which also contradicts his position that the debate about "content protection" is not a debate about fair use. If I can't even watch a DVD I bought without cracking the DRM, that would suggest that you cannot imply anything about fair use from the ability to copy and manipulate data. Therefore, anything which restricts my ability to copy and manipulate data may also be restricting my fair u

  • From the summary: ' Wu's position is that 'it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use.'

    > No, that is not what fair use is. Fair Use [wikipedia.org] is that exception written into copyright law since 1976 that allows people to quote and/or copy small parts of a copyrighted work without permission or payment for certain specific reasons. If he doesn't even know what the term means, why should we care wha

  • I don't see problem with copyright protection or fair use. I see problem with punishment due to copyright violation. In retrospect, copyright law is heading toward colonial era when witchcraft and runaway slave is an offense punishable enough to be burned at the stake.
  • "work that adds to the value of the original, as opposed to substituting for the original, is fair use."

    I don't think that defining a subjective term by the use of another subjective term clarifies anything.

    This is, and will remain, a thorny issues because, whetever the long-term interests of both parties and their understanding thereof, the short-term interests collide. Given the prevalence of piracy, I'm not sure even a crystal clear definition will solve the problem.

    It seems to me that the definition of
  • Whoever said we have to add value by adding original material? A lot of value can be added to some pieces by *removing* material, e.g. The Phantom Edit.
  • How is making a compilation of awesome fighting scenes not adding original contribution to the copyrighted works? Were the original copyrighted works simply compilations of awesome fighting scenes? Okay, well maybe king fu movies are a bad example because some of them really are just compilations of awesome fighting scenes.
  • Clarify? (Score:3, Insightful)

    by localman (111171) on Wednesday January 16, 2008 @08:52PM (#22075234) Homepage
    work that adds to the value of the original, as opposed to substituting for the original

    And who gets to determine what "adds value"? Here's a random example I just came across today that rides the line: the full Steve Jobs Keynote vs. this 60 second recap:

        http://www.youtube.com/watch?v=Yz1-cPx0cIk [youtube.com]

    That can both substitute for the original, and yet I think adds value. Not just by being short and informative, but by satirizing and commenting on the effects of 89 minutes of fluff marketing. Is it fair use?

    Cheers.
  • I buy a media/entertainment product. I use the product (music, book, video ...)
    for as long as I want, wherever I want, in any personal (not public) way that I
    want, on any type of my personal products/media I want.

    At any point, I attempt to use any IPR protected product for (non educational)
    personal real/virtual value gain (bar, theater ...) then I must negotiate with
    the owner and/or accept binding arbitration as too the appropriate compensations
    percentage value of the IPR product added to my innovative, cre
  • Isn't this their argument for not paying the writers for downloads? Shakespeare, relevant as evah.
  • by goldcd (587052)
    Here's where I am. I pirate video audio. I'm not entirely sure I want copyright law to be altered that much.
    Just putting myself on the other side. If I'd created a film, recorded an album etc - I'd want to sell it and make a bit of cash back (if only to cover my costs). If somebody downloaded it I'd be a bit pissed off. If I saw it sat on YouTube with google making money off the adverts around it, I'd be really pissed off.
    On the flip side I hate the DRM laden 'legit' digital media and I'd have no objectio
  • by AmiMoJo (196126) <{ten.3dlrow} {ta} {ojom}> on Thursday January 17, 2008 @07:42AM (#22079162) Homepage
    Here's the deal. You get to use publicly owned material like the English Language, classical music, out-of-copyright books and traditional stories (hello Disney), pictures of public places (including MY HOUSE damn it), regional accents etc. in return for some fair use rights and a limited (say 15 year max) copyright term. Sound fair?

    Nothing that big media produces is entirely original. Apart from the fact that they use a public domain language (English) with slang and common metaphors not written by them, they of course are inspired by earlier work. Bands like Oasis wouldn't exist without The Beatles, yet they pay them no fees. The Matrix is just an updated version of Descart's "I think therefore I am" idea.

    Either they give something back or they start paying.

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