hear from them because this is too murky an issue for the professionals to
stick their necks out on. (They'll leave it to the "barber shop" crowd, who
are not bound by the same professional constraints.)
The argument has been presented here that quoting an entire article exceeds
fair use. That argument is based on the presumption that any one article in
a publication such as a newspaper constitutes the entirety of a copyrighted
work. However, it might well be argued that a single article is a limited
portion of the copyrighted work (the whole newspaper edition) and thus
quotation of it, even in full, remains within Fair Use.*
Unless or until there is case law on this specific question, other arguments
thus far given are moot.
Meanwhile, as Kim points out, uses fundamentally similar to those found here
have not been brought to court, and therefore, until they are there will not
be case law on the issue. Therefore, lacking case law, any arguments on the
whole issue are moot, making this a non-issue. Until at least a
cease-and-desist demand is issued by an allegedly injured party (to this or
any online group or list), this whole area of argument is just so much
generation of hot air.**
-----------------
* The fact that a copyright notice forbids quotation "in whole or in part"
has no bearing, since it is inconsistent with the Copyright Law. The same is
true with copyright notices placed on raw data (e.g. genealogy reports)
which contain no "original creative work" and therefore are not
copyrightable. The Copyright Law does provide for the posting of notice of
copyright, but never declares that such a posting brings the material under
the umbrella of the law nor that the law is extended by the notice.
** And a cease-and-desist demand has no legal bearing either (may be only
further hot air); it merely demonstrates that the demanding party believes
itself to have been injured by an action which it believes itself to have
legal protection from, and it alerts the recipient/alleged injuring party
that legal action may be forthcoming. (The only legal value of such a demand
is as an argument that the alleged injuring did in fact continue acting
after being asked to stop, which may have some influence on the penalty if
in fact the action is found to be a violation of a law.)
----- Original Message -----
From: "Kim Noyes" <kimnoyes@gmail.com>
To: <californiadisasters@yahoogroups.com>
Sent: Saturday, August 07, 2010 1:46 AM
Subject: Re: [californiadisasters] Re: Admin Read: Fair Use
> Mike,
>
> Since you have never before contributed anything here you were
automatically
> still on moderation as are all new members to prevent spamming.
>
> However, I approved your message because it gives us all a chance to air
> this matter out which seems to pop up on many Yahoo Groups from time to
> time.
>
> This matter has already been looked into in great detail by the ownership
> and management here as it has on many other groups.
>
> Thank you for sharing your opinion and for sharing your great links and we
> appreciate and hope our members will take a gander at them for their own
> edification.
>
> However, to be quite honest they do nothing to clarify anything nor do
they
> contain any new information we have not seen before.
>
> Contrariwise, they serve to further demonstrate just how murky and gray
and
> convoluted and wide-open the entire matter is.
>
> Go back through the pages of the links and notice what I mean: lots of
> speculation and hypothesizing and theorizing and generalizing and general
> wishy-washiness.
>
> Contained therein is not a lot of legal precedent applicable here or
really
> anywhere as it pertains to anything remotely in our circumstances as not
> much case law even exists because not a lot of lawsuits of the sort that
> involves us ever happen.
>
> The one big court case mentioned was 11 years ago and it was against a
> politically active, for-profit, large-circulation Conservative rag and was
> almost certainly a politically-motivated lawsuit. No mention of any suits
> involving any online forums or email lists, not even big groups unlike our
> medium-sized one
>
> Just about every line or element in these links serves to tell us what we
> already have come to notice and have debated before on other groups or
> discussed amongst ourselves which is that while one element of what we are
> doing could in theory bother somebody that is not very likely given our
> particulars.
>
> Yes, in theory posting articles in their entirety might piss off a
copyright
> holder but what we are doing is not what they are concerned about in the
> first place and they have much more important fish to fry than a Yahoo
Group
> with a mere 1500 members, some of whom are members of the very media
owning
> copyrights to which we are discussing.
>
> Yes, we have newspaper and TV reporters here and they aren't too worried
> about what we do. In fact they monitor the posts for their own
edification.
>
> By posting an article in full one can read it uninterruptedly and can view
> it in the full context of both itself and all the other content on the
group
> relating to what is being discussed be it a fire or an earthquake or some
> new study about some future hazard or some new research about some past
> event, etc. just as is mentioned in your links.
>
> Yes, they mention this is not in and of itself a defense but neither is it
> an indictment....like with this entire matter, it's very gray and vague.
>
> I am not aware posting entire articles keeps people from checking out the
> article on the website of origin. Speaking for myself I ALWAYS go to the
> website of origin when others post an article because I want to see the
> accompanying photos and any links on the margins to similar or related
> articles, etc.
>
> Perhaps I'm being Kim-centric believing others do, too, but I believe
others
> indeed do likewise or else I wouldn't do something that I thought caused
any
> harm to a newspaper's profitability or actually broke any laws as they are
> actually enforced in the real world as opposed to the world of legal
theory.
>
>
> Other than the percentage of article reposted here there is very certainly
> nothing else we do that could logically and reasonably be construed as a
> problem to anybody as it pertains to reposting copyrighted material and
Fair
> Use given our particulars.
>
> In our favor is that we are a non-profit enterprise, we are a discussion
> group filled with not only regular folks but also specialists and other
type
> authorities in fields relating to what we cover, and the material we
repost
> is not highly artistic like fiction but is fact-based which as your own
> material acknowledges is less thorny unlike highly-creative works of
> fiction.
>
> I have yet to hear to date of a single Yahoo Group or forum or other email
> list get a cease & desist order let alone a lawsuit and I have seen other
> groups that are not well-managed (unlike this one) where articles are
posted
> in their entirety without links and without a lot if any effort made
towards
> making adequate attribution and nothing has ever happened there nor
probably
> ever will.
>
> For this reason we continue to see this as a non-issue and a tempest in a
> teapot. We have never knowingly broken the law as it is interpreted and
> enforced nor encouraged or allowed others to do so.
>
> What we claim and charge is that the law is inexcusably vague and even
more
> vaguely enforced as to cause additional confusion.
>
> This is neither our fault nor our concern.
>
> However, in deference to the one hypothetical and theoretical soft spot we
> might have I will start reposting partial articles (instead of complete)
and
> encourage others to do likewise (and call it our "Steve" policy since he
> started this tonight) to eliminate any lasting concern anybody might have
> for the financial well-being of the LA Times as it pertains to California
> Disasters reposting their content. ;-p
>
> So Mike, with that out of the way, feel free to contribute stuff here
about
> disasters and such as well. ;-p
>
> Kim Patrick Noyes ~ California Disasters Legal Defense Team
>
>
> On Sat, Aug 7, 2010 at 12:20 AM, mountain1 <Lists@mountainnet.us> wrote:
>
> >
> >
> >
> >
> > Actually Mr Noyes, I don't know if you are a lawyer or not, or what your
> > experience is in Fair Use/Copyright claims are, but what you have posted
is
> > very incorrect and can get you, and others who follow it, in quite a bit
of
> > a legal mess.
> >
> > I'd like to recommend that you read a wonderful summary found on the
> > groundwire.org website at:
> > http://groundwire.org/support/articles/fair-use
> >
> > It lists 4 test cases as well as a judgement against FreeRepublic.com in
> > 1999 for doing exactly what you say is allowable. Here is a quote from
the
> > article:
> >
> > "The fact that the newspaper articles were republished in their entirety
> > also weighed heavily against the fair use defense. Where media criticism
is
> > concerned, one can well understand a critic arguing that an offending
> > article must be viewed in its entirety to assess the context and any
subtle
> > bias of the author. But the Court was unmoved by that argument, and it
held
> > that the Free Republic had failed to show how full-text copying was
> > essential to its discussion forum. The Court implied that posting
summaries
> > of the articles or providing a link to the newspapers websites where the
> > full articles could be read were alternatives that Free Republic should
have
> > employed. Finally, because the availability of the papers articles in
full
> > text on the Free Republic site fulfilled at least some demand for the
> > original works on the papers own websites, and because widespread
copying of
> > this type would have a deleterious effect on the papers markets, the
fourth
> > factor weighed against the fair use defense."
> >
> > The link on that page to the EFF's page is also a wonderful tool which
also
> > links to the Stanford.edu page which is a wealth of information. A good
> > shortcut link is:
> > http://fairuse.stanford.edu/commentary_and_analysis/2003_07_minow.html
> >
> > One key thing to take from that site is:
> >
> > "If you're found to be an infringer (and don't have reasonable ground to
> > believe your use was Fair Use), statutory damages are set by law at a
> > minimum of $750 and a maximum of $30,000 per infringement, "as the court
> > considers just." If the court finds that you've infringed on ten
photographs
> > that have registered copyrights, for example, you may be facing a
$300,000
> > lawsuit. If the copyright owner can prove that the infringement was
> > committed willfully, the court has the discretion to increase the
damages up
> > to $150,000 per infringement. Further, the court may determine that the
> > losing party must pay the winner's costs and attorneys fee"
> >
> > Of course another great resource for all things, not just legal or Fair
Use
> > doctrine is eHow which has had one of the best articles I've ever read
on
> > the subject at
> > http://www.ehow.com/about_4793360_copyright-laws-fair-use-issues.html
> >
> > One should take away from that link the following:
> >
> > "Misconceptions
> > Contrary to popular belief, there is no hard and fast rule as to the
number
> > of words which can be reproduced from a copyrighted work under the
doctrine
> > of fair use.
> > Non-profits do not automatically have free license to reproduce
copyrighted
> > work without attribution or compensation.
> > .....
> > Merely showing attribution for reproduced work does not provide complete
> > cover from the law--attribution is necessary but not sufficient to
establish
> > lawful use of copyrighted material."
> >
> > Yahoo and Yahoo groups are covered under the Safe Harbor clause, but you
> > the owner, moderator, and sell professed legal team, as well as anyone
who
> > posts a COMPLETE article, is pretty certain to be violating US Copyright
law
> > and not acting within the confines of the Fair Use doctrine.
> >
> > The basic rule of thumb is that you are never allowed to post/republish
> > someone's work in its entirety without expressed permission. That's
almost
> > always a given fail of the Fair Use doctrine. You are allowed to
summaries,
> > link to, use parts of, quote, and discuss an article to your hearts
content,
> > but republishing in its entirety, even for non-profit or educational
use, is
> > probably not going to win in any US courtroom.
> >
> > In the situation of the article posted here, it is obvious to see that
by
> > posting the entire article here, there is no reason at all to go to the
> > originating website which is ad-supported. By posting it here, and
having it
> > remain available in perpetuity, you are probably violating the 4th test
of
> > Fair Use by infringing on the market for the article.
> >
> > I am not a lawyer, but I am a part of various groups that work hard on
> > promoting Fair Use standards, and the rights of copyright holders and
> > content creators. These articles are some of the best that give one and
all
> > a better understanding of the murky waters of US copyright law, and the
> > legal and financial dangers they can find themselves in even if they
meant
> > no harm.
> >
> > Mike
> >
> >
> > --- In
californiadisasters@yahoogroups.com<californiadisasters%40yahoogroups.com>,
> > Kim Noyes <kimnoyes@...> wrote:
> > >
> > > Steve,
> > >
> > > "Fair Use" laws make posting articles for discussion on online forums
> > where
> > > there is obviously no profiteering and proper attribution is shown
> > entirely
> > > legal or else Yahoo Groups and many, many other forums and lists would
> > have
> > > been shut down years ago while a large percentage of the content
posted
> > > thereon over the years had to be methodically removed.
> > >
> > > By posting articles with links included (as we always do here) we are
> > > actually providing a free service to the publishing source by
providing
> > them
> > > with free distribution and publicity and potentially drawing more
folks
> > to
> > > their website which in turn brings them more revenue.
> > >
> > > Kim Patrick Noyes
> > > Legal Team ~
> > > California Disasters Group
> > >
> > >
> >
> >
> >
> >
>
>
> --
> Check out http://groups.yahoo.com/group/californiadisasters/
> Read our blog at http://eclecticarcania.blogspot.com/
> Visit me on Facebook at http://www.facebook.com/derkimster
> Visit my Myspace at http://www.myspace.com/kimusinteruptus
> We have an Ebay store at http://stores.ebay.com/K-K-Earthwerks
>
------------------------------------
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