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Your two statements are contradictory.
They're not. Holding a copyright on a work does not confer one with complete authority as to how that work may be used. The rights which comprise copyright are relatively few; further, they are themselves limited in a number of respects.
For example, copyright on a book does not include a right to prohibit other people from reading the book. The list of exclusive rights that together form a copyright can mostly be found at 17 USC 106. (Again, only for the purposes of US copyright law; I have no idea about foreign copyright law, and I don't care to)
And posting a picture on your website doesn't tell or demonstrate anything.
The conduct of doing so, assuming a website open to the public, is an implicit license to anyone to access and view it (and to make incidental copies in the process of doing so).
If I happen to know that the Mona Lisa hangs in the Louvre, there's nothing wrong with my telling people to go there to see it. And if I happen to know the URL of your picture, there's nothing wrong with my telling people to go there to see your picture; this is so whether I provide people with a link to be manually followed, or an embedded link to be automatically followed such that the picture appears in the web page. I'm not copying it onto my website or anything.
First sale is not profiting in a commercial sense.
It is absolutely that. A used book store will sell copies of works for a profit, because it is a commercial enterprise. It is totally reliant on the first sale doctrine. Ditto however many independent video stores still exist (since it's perfectly legal to rent lawfully made copies of movies that you own).
Commercial use is not fair use.
Well, where the hell were you when the Supreme Court needed your input in 1994 in Campbell v. Acuff-Rose Music?
There the Court not only found that a commercial use certainly could be a fair use, they even said that it is wrong to treat a commercial use as being presumptively unfair. Commerciality is just an element to be considered, and that's all:
If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of Â 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities "are generally conducted for profit in this country." Harper & Row, supra, at 592 (Brennan, J., dissenting). Congress could not have intended such a rule, which certainly is not inferable from the common-law cases, arising as they did from the world of letters in which Samuel Johnson could pronounce that "[n]o man but a blockhead ever wrote, except for money." 3 Boswell's Life of Johnson 19 (G. Hill ed. 1934).
But then I guess you already knew everything you wrong was wrong since you fell the need to try and make your point using an insult.
'Everything you wrong was wrong?' What the hell is that?
Anyway, I called you an idiot because you're clearly an idiot. It had nothing to do with my actual argument. But my advice to you is that you have no idea what the hell you're talking about, at least within the context of US copyright law, and you would do yourself, and everyone else a great service if you'd shut the fuck up and learn something from a legitimate, neutral source before you next presume to talk about it.
You still retain all rights to decide how people may use that photo.
No, you still retain whatever rights you had. You certainly don't have complete authority to decide how other people may use it. So long as other people use it in a manner which doesn't infringe on your copyright, you can't control them at all, in fact.
At no time does making something publicly available give a 3rd party ability to profit from it.
It does for first sale. It does for fair use, if the particular use happens to qualify (commercial uses are fully able to be fair uses). There's a number of other exceptions that can apply as well. For example, if you release a record, other people can record and sell cover versions of it, and the whole intent of this was to allow third parties the ability to profit without the permission of the copyright holder.
This sounds like a perfectly ordinary copyright ruling
In fact, this is an asinine ruling. The court got it right before, when it found that linking to a file which had been put up with authorization was not infringing (which the exact thing you've been claiming was infringing, idiot). Here, the difference was that the underlying files had been put up in an infringing manner. But, rather than tell the rights holder to go after the actual wrong-doer who put them up to begin with, they decided to shift liability to third parties who were not responsible for the underlying infringement. It's very reminiscent of the stupid 'right to be forgotten' cases, in that it tries to sweep things under the carpet by imposing liability on the wrong parties just because they're more convenient.
Commercial use is, and it always has been too. This isn't anything surprising to anyone who's done as much as first year of lawschool. There's a big difference between publishing content, even distributing it widely, and making a profit of the said content.
I have no idea about European copyright law, nor do I care, but in the US, there's not any significant difference.
Infringement is essentially any infringement of the rights granted to authors in section 106, which are subject to various exceptions and limitations.
Prima facie infringement makes no distinction between commercial and non-commercial use. That may be relevant in computing damages, but often isn't. A few of the exceptions to copyright may apply in certain circumstances that include non-commercial use, but others apply in any kind of use.
Since no one in the US studies copyright law in their first year of law school, I wouldn't worry too much about what some 1L thinks.
Also I think your hypo with the photograph is wrong. First, 'embedding' is not a right of the copyright holder. Copying is, but in the case of embedding, the Coca-Cola company has not engaged in copying; only you and the end user have. Distribution is, but in the case of embedding, they're not distributing anything; you are, if anyone is. Public display is your best bet, but again, they're not the ones displaying it, you are. Your problem is that you have set up your server to accept requests from users who are not viewing your site, but who may be viewing some other site that is embedding an image from you. That's your fault, and within your control. Your failure to prevent it can be viewed as an implicit license for users to view that material, which kills any argument at direct, and therefore secondary, infringement.
As for the model release, that's a whole different kettle of fish, but certainly wouldn't come back against you.
It would be fair use only if used infrequently. For example, if you want to quote someone else's article in your article, that's fair use. However, if your entire business is dependent upon making snippets from thousands of articles, that's no longer fair use, it's commercial use.
No, you're wrong.
First, fair use applies to both commercial and non-commercial uses. For example, when Mad Magazine did a movie parody, that would be fair use, even though the magazine us sold for an increasing cheap price and is a commercial venture.
Second, the previous poster didn't really explain it well. Fair use is when a copyrighted work is used without permission in a way that, but for fair use, would be infringing, but which is not infringing because it is in the general purpose of copyright to allow such a use. It's evaluated on a case-by-case basis, and is completely fact dependent. This, any particular use might be a fair use, but not just any use actually is.
There's a test for finding out whether a use is fair or not. It has four factors, though it isn't a matter of adding up how many factors go one way or another, and depending on the case, one factor might be treated as outweighing another. Plus, it's just a tool; other factors can be considered too.
The factors are: 1) the purpose and character of the use, such as whether the use is for profit or not, whether the use would advance the progress of knowledge by resulting in something new or otherwise helpful; 2) the nature of the work being used, such as whether it is fictional and therefore very creative and worth protecting, or factual, and therefore not worth protecting quite so much (how a work presents itself is also often relevant in copyright; if you claim that something is a fact, even though it's made up or is just a hypothesis, others may get to treat it as a fact) as well as whether the work being used has already been published or not; 3) the amount of the work used, and how important to the work that portion is; and 4) whether the use will have a negative effect on the value or market for the work (positive effects are not considered).
Snippets of this type -- in aggregate, mind you -- have repeatedly been found to be fair use in the US because for the first factor, although the use is commercial in nature, it provides a benefit to society in being able to search for this material (which of course requires as much material as possible to be used in constructing the index, even though the index itself, as opposed to the results of a search, is not made available), the second factor may weigh against the use depending on the material being indexed, but it is not treated as being very important, obviously the whole work must be used to make the index for the index to be useful, so the third factor doesn't matter, and for the fourth factor, it doesn't harm the market for news articles to be able to find them and to see in one or two lines why they match your search terms. It doesn't matter if that's the business model.
And if you think this is extreme, look at time shifting, which is bad on all of the first three factors, but is sufficiently successful on the fourth so as to be fair use (in a general way, since again it is highly fact dependent)
Which is the point where you've broken copyright law. Photocopying books is, well, copying them.
Unless you're engaged in a fair use (or fall under certain other exceptions), in which case the copying is perfectly legal under copyright law. Which turns out to have been the case here.
And thanks to Google clearing the trail, it'll be easier for others to do the same thing, if they're inclined.
They don't have an exclusive right to scan in books. First, because such a right could only be granted by either copyright holders, as an exclusive license (which would also necessarily mean that scanning the licensed book was not infringing) which wouldn't matter to rivals because the rivals can ignore such a license and rely on fair use per the lower court's decision. Second, because the only other way to have an exclusive would be if there were literally only one copy in existence and the library that owned the copy refused to grant access to anyone else, and that is frankly, pretty unlikely.
The reason that they may have an effective exclusive is simply that it's an expensive pain in the ass to scan all of this stuff in, and there's little money in it, so who else would want to bother. But the disinclination of third parties to compete with Google because it's hard, likely minimally profitable work, is hardly Google's fault.
The point is, they took on a project that violated copyright on a massive scale. They want to claim that it's fair use
No they didn't. Fair use is by definition not a violation of copyright. And so far this has been determined to be fair use, and with the Supreme Court refusing to take up the case, there should be nothing else to say about it.
I think it's only fair the LoC get a full copy of their book index.
That would be nice, but they're under no obligation to give a copy to the Library of Congress if they don't want to.
Frankly, I think its good that such a thing exist in society. But it's not good that a private for-profit company can take it on themselves to do that for their own gain.
Why not? Certainly the government should be doing this sort of thing; as an attorney it always bothers me that there's no public alternative to Lexis and Westlaw. But that the government could do it and should do it doesn't preclude private entities from doing it too, as a general rule.
For instance, the government builds most roads. But nothing stops a private company from building a private, for-profit highway, so long as they can get the land without government assistance and afford to build a safe roadway on it which complies with various regulations. It's just such a hassle that it's rare.
Honestly, it's strange that laws suddenly stopped applying because it was on a computer.
Copyright law applies. Google simply hasn't acted illegally is all. Google books is no different than if someone made analog xeroxes of lots of books, manually compiled a master index of everything in them, and took requests by phone to tell people what books matched various search terms (possibly with a specific sentence or passage read aloud over the phone to lend context to the result).
Computers make this practical, not legal.
Suppose an author hated a book they had written earlier. It would be impossible for them to buy and destroy every copy.
Competitors who would have to reproduce the electronic archiving, as opposed to having the LoC owning the electronic copies and people competing on search algorithms.
Oh, that's just stupid. I doubt Google has an exclusive that would prevent people from surmounting the same natural barrier to entry. And if the government did scan everything in and make its scans available to third party search engines, that certainly wouldn't prohibit anyone else from doing their own scans either. It would just be a government subsidy of book searching. Perhaps that would be good, but it's not a valid criticism of Google Books.
Creative works are copyrighted by default. The author/artist does not need to take any action for their work to be protected.
Yes, and that's a colossally stupid idea. Copyrights should only be available where authors take action to get them, and only persist where authors regularly take action to maintain them.
This is probably what the earlier poster was complaining about, and I suspect you took him too literally.
something that you didn't create, thus implying it is copyrighted until you can show otherwise
That's a big part of the problem which the earlier poster was alluding to. Works should never be copyrighted unless the copyright is specifically requested by the author, through a registration process that includes placing copyright notices and registration numbers on the work to facilitate checking their copyright status.
This is no great burden for authors, who will either comply if they want copyrights, or ignore it and let their works enter the public domain immediately (indicating that they didn't care about the copyright to begin with). On the other hand, it would be greatly beneficial to the public, who would no longer have to assume that everything is copyrighted until they can prove otherwise.
A requirement to maintain up-to-date information in the registry, lest the copyright be lost, would also help with the orphan works problem you mentioned.
As someone else said, this is just Google being greedy - they could have come up with some sort of agreement with the authors that allowed them to do it via a subscription service, or such. Instead, they decided to give away someone else's work for free.
Actually, no, they couldn't. The transactional costs would be so great that neither Google, nor anyone else, would be willing to bother. Plus there would be authors who would refuse to participate, or who would balkanize the market with exclusive arrangements, much as we're seeing with music and video.
It's too knotty a problem to solve, other than by cutting right through.
Shouldn't it be up to each author to decide how much and what should be available as a free preview?
Only to the extent that it would not be fair use. Within the confines of fair use, it's not for them to decide.
Perhaps being able to search google's scanned books should be a subscription service with some portion of that subscription payment going back to the authors of the books you looked at.
Then probably no one would use it very much. Plus of course, copyright doesn't include a right to information about a work, and that, fundamentally, is what Google Books is: it tells you that a given search term appears in a book. The snippet is just icing on the cake, very similar to the thumbnails in image searches, or the snippets on Google's web search results pages. They provide useful context and the ability to verify that the match is not a false match, but that's about it for most of them.
Or perhaps it should be nationalized into a public library system and we pay taxes into it that go back to the authors.
I have no problem with the Library of Congress or other public libraries offering similar services. I wouldn't pay authors though; it's not necessary and seems like a waste.
I'm just not sure a system that benefits you and google but not the authors is the best solution to the problem here.
The important thing is that it benefits him, and you, and me, and the general public. Copyright isn't meant to provide a benefit to authors, except where doing so is in the interests of the public.
Everybody likes a kidder, but nobody lends him money. -- Arthur Miller