Comment copyright implications? (Score -1, Offtopic) 176
"Comments were used. They were posted in a public forum, which means that anyone
can quote from them - but we've removed any sort of identifying marks, to
protect people. This was down to impress upon those reading the gravity of the
situation."
Although I must confess that the last sentence of the above quote seems
incoherent to me, it seems that Jon Katz's understanding of fair use law is
flawed and incomplete. Asserting that the publishing of a copyrighted work into
a public forum nullifies the right of the copyright owner to restrict
distribution and benefit from the publishing of the work is utterly ludicrious
and goes against centries of precedent for the reasons that I will summarize
briefly. I don't have the inclination or time to put together a detailed point
by point rebuttal of the arguments put forward by Katz and Hemos (given their
faulty interpretation of copyright law, my comment could be reused in a context
different than that which permission for use is granted), but what I say should
be materially accurate. Now, I must preface my comment with the note that the
information presented here is only general information. If you want true legal
advice, you must obtain this from an attorney-client relationship with a
specific understanding of all the facts in a particular situation. This
information should not be relied on as a substitute for obtaining legal advice.
First, some definitions
"Willful infringement":the party distributing
copyrighted material was aware of infringment and went on despite this
"Good faith fair use defense": Ignorance of the law is not normally exculpatory,
however, demonstrating that one reasonably believed that what one did was fair
use may be cause for a court to refuse to award damages.
What is considered to be copyrighted?: The presence or absence of an explicit
copyright notice means essentially nothing after 1989. Posters do not place
their comments into the public domain unless they give explicit notification
that they do so; the notice at the bottom of every Slashdot page "All trademarks
and copyrights on this page are owned by their respective owners. Comments are
owned by the Poster" lends additional credence to this concept.
When does copyright law come into effect?: If someone other than the copyright
owner wants to exercise rights that exclusively belong to the owner (including
reproduction, redistribution, creation of derivative works, performance,
archival, or display). Some uses are, however, exempt from liability from
infringement (including fair use, libraries, and certain educational purposes).
What constitutes fair use?: Traditionally, a four pronged test has applied to
determine whether a specific usage falls under fair use or not. These are:
1) The nature and character of the use: nonprofit, educational, artistic, and
personal uses tend to be looked upon more kindly than for-profit or commercial
uses. Closer on the continium to preserving the rights of the copyright owner
include criticism, newsreporting, and commentary. Note that receiving profits
from the sale of a derivative work and than donating these profits to a charity
does NOT fall under the category of nonprofit use; the user of the copyrighted
material gains a benefit from the sell of the derivative work.
2) The nature of the copyrighted work that is being used: Works that are
published and factual in character may be used more freely than creative or
imaginative works. Judging from most Slashdot comments, it would appear as if
many posters reflect on how incidents have affected their personal lives and
emotional state. This is not neccesarily of a factual nature.
3) Amount of work used: needless to say, taking a copyrighted work in its
entirety would severely diminish any plausible claim of fair use. I don't know
how much of each comment Katz reproduces in his book.
4) Effect of use on status of original work: The situation in this case leans
against fair use for the following four reasons. -The original comments are
still available and can be accessed freely. -The copyright owner/s is/are
identifiable, but, by Hemos' own admission no substantial effort was made to
locate them beyond a token effort and then a comment to the effect that it was
too difficult. -Avoids payment for permission in an established market, where
the owner of the comment has the reasonable expectation of being compensated for
the use of his or her work (witness Janes' effort to locate the people quoted in
their article)
-It is the specific intention of Katz and Hemos to delete all identifying
information such that no credit is given to the owner of the copyrighted work,
an enormous no-no in copyright law.
Considering these facts, especially the fourth prong of the test (interpreted
via Princeton University Press vs. Michigan Document Services wherein the
concept that the potential for economic damage caused by use of a copyrighted
work negates fair use, even without regard to the first three prongs of the
test), it seems beyond question that Jon Katz has made a severe mistake in
publishing what is essentially a derivative work blatantly drawing on the
creative works of others, with a deliberate effort to suppress the identities of
those who contributed materially to it.
can quote from them - but we've removed any sort of identifying marks, to
protect people. This was down to impress upon those reading the gravity of the
situation."
Although I must confess that the last sentence of the above quote seems
incoherent to me, it seems that Jon Katz's understanding of fair use law is
flawed and incomplete. Asserting that the publishing of a copyrighted work into
a public forum nullifies the right of the copyright owner to restrict
distribution and benefit from the publishing of the work is utterly ludicrious
and goes against centries of precedent for the reasons that I will summarize
briefly. I don't have the inclination or time to put together a detailed point
by point rebuttal of the arguments put forward by Katz and Hemos (given their
faulty interpretation of copyright law, my comment could be reused in a context
different than that which permission for use is granted), but what I say should
be materially accurate. Now, I must preface my comment with the note that the
information presented here is only general information. If you want true legal
advice, you must obtain this from an attorney-client relationship with a
specific understanding of all the facts in a particular situation. This
information should not be relied on as a substitute for obtaining legal advice.
First, some definitions
"Willful infringement":the party distributing
copyrighted material was aware of infringment and went on despite this
"Good faith fair use defense": Ignorance of the law is not normally exculpatory,
however, demonstrating that one reasonably believed that what one did was fair
use may be cause for a court to refuse to award damages.
What is considered to be copyrighted?: The presence or absence of an explicit
copyright notice means essentially nothing after 1989. Posters do not place
their comments into the public domain unless they give explicit notification
that they do so; the notice at the bottom of every Slashdot page "All trademarks
and copyrights on this page are owned by their respective owners. Comments are
owned by the Poster" lends additional credence to this concept.
When does copyright law come into effect?: If someone other than the copyright
owner wants to exercise rights that exclusively belong to the owner (including
reproduction, redistribution, creation of derivative works, performance,
archival, or display). Some uses are, however, exempt from liability from
infringement (including fair use, libraries, and certain educational purposes).
What constitutes fair use?: Traditionally, a four pronged test has applied to
determine whether a specific usage falls under fair use or not. These are:
1) The nature and character of the use: nonprofit, educational, artistic, and
personal uses tend to be looked upon more kindly than for-profit or commercial
uses. Closer on the continium to preserving the rights of the copyright owner
include criticism, newsreporting, and commentary. Note that receiving profits
from the sale of a derivative work and than donating these profits to a charity
does NOT fall under the category of nonprofit use; the user of the copyrighted
material gains a benefit from the sell of the derivative work.
2) The nature of the copyrighted work that is being used: Works that are
published and factual in character may be used more freely than creative or
imaginative works. Judging from most Slashdot comments, it would appear as if
many posters reflect on how incidents have affected their personal lives and
emotional state. This is not neccesarily of a factual nature.
3) Amount of work used: needless to say, taking a copyrighted work in its
entirety would severely diminish any plausible claim of fair use. I don't know
how much of each comment Katz reproduces in his book.
4) Effect of use on status of original work: The situation in this case leans
against fair use for the following four reasons. -The original comments are
still available and can be accessed freely. -The copyright owner/s is/are
identifiable, but, by Hemos' own admission no substantial effort was made to
locate them beyond a token effort and then a comment to the effect that it was
too difficult. -Avoids payment for permission in an established market, where
the owner of the comment has the reasonable expectation of being compensated for
the use of his or her work (witness Janes' effort to locate the people quoted in
their article)
-It is the specific intention of Katz and Hemos to delete all identifying
information such that no credit is given to the owner of the copyrighted work,
an enormous no-no in copyright law.
Considering these facts, especially the fourth prong of the test (interpreted
via Princeton University Press vs. Michigan Document Services wherein the
concept that the potential for economic damage caused by use of a copyrighted
work negates fair use, even without regard to the first three prongs of the
test), it seems beyond question that Jon Katz has made a severe mistake in
publishing what is essentially a derivative work blatantly drawing on the
creative works of others, with a deliberate effort to suppress the identities of
those who contributed materially to it.
