Copying is not theft

[+Random Terrain]

Who's Who in the Software Underground

Hackers, Pirates, and Muggers

 

[Mord]

On the topic of movies stripped of all commercials, previews, and menus I must exert a hearty "Harumph!"! As much of a proponent as I am of physical media, that's the one beauty of ripping DVDs. I especially cannot stand animated menus. If I added up all the time I had to sit through animated menus I would probably curl up into the fetal position and wonder what I could've been doing with my life instead.

 

That as well as the way a lot of DVDs will force you to watch all the advertisements they've put on the disc, disabling the skip/menu buttons on your remote just to be safe. One of the advantages of DVDs was that you could do exactly that. Instantly skip over advertisements rather than having to fastforward through them on a VCR. (Ironically doing that switched the bonus from the DVD to the VCR which could now skip the ads faster.)

 

Stuff like that pretty much kept me from amassing many movies on DVD. I have some but most of the time I just leave the DVDs at the store and forget the movie exists as I turn on whatever console I have hooked up that week.

[the.golden.ax]

Let me take this thread in a bit of a different direction. I'm considering a idea that involves copying and enlarging original art like game ads from comics and magazines. Clearly the rights to those images are owned and have IP rights. HOWEVER if you have and include the physical original with the print would it be legal to offer the enlargement for sale?

AA lawyer types, I need examples if you can find anything supporting or condemning something like this through actual laws or legal cases. With a CD or DVD it's clear that you can have one back-up. How does that work with printed art/ads?

 

AX

[RevEng]

Time's running short on me AX, so I'm going to throw a lot of stuff at you without citation; if you want more details on anything, or if anything sounds off, I can provide the relevant laws or case law tomorrow...

 

To frame the conversation, copyright law works by taking away all rights to copy someone else's artistic work, and then granting you exemptions for certain circumstances. So whatever isn't expressly allowed is questionable - questionable, not forbidden, because judges are given a whole lot of leeway with the "fair use" copyright exemptions.

 

With a CD or DVD or magnetic media, there's a software-specific copyright exemption which doesn't apply to other types of objects... it was even found in court not to apply to Atari carts. So the backup angle is a non-starter for this specific exemption. Sorry.

 

I don't see any other exemptions that fit, so you're basically left with fair-use exemptions. The way you check if a usage is fair-use is to weigh the usage against 4 factors...

 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

 

(2) the nature of the copyrighted work;

 

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

 

(4) the effect of the use upon the potential market for or value of the copyrighted work.

 

So for your usage...

 

(1) it's commercial, which is a strike against your fair-usage chances. Though it could be argued that you're preserving the art, which softens this point.

 

(2) if the nature of the copyrighted work is artistic, it's a big strike against your fair-usage. If it's an advertisement, then this point would likely weigh in your favor.

 

(3) it sounds like you plan to use all of the art piece, so this is a strike.

 

(4) this may be your saving grace. An ad is highly likely to be a work-for-hire and owned by Atari, for example, and not sold. Further, the market for the work is dead. Even if it wasn't, your usage would have a positive effect on the market. However, if artwork was merely licensed to Atari by someone else, and they could sell this artwork elsewhere, then you lose this point.

 

Personally, I think it's probably fair use. But since fair-use has the most wiggle-room, it's also the exemption defense that will most likely be tested in court, if $$$ are at stake. (and if no $$$ are at stake, then this is all academic.)

[Cebus Capucinis]

I don't think (4) is enough, though, but that's where you get into "fair use" being a very subjective term based upon who is wearing that pretty black robe. To me, if it's commercial and it's a reproduction of an artistic work, you're going to be very hard pressed to find a strong enough argument to get around those facts.

 

The bottom line is that fair use is a very, very hard term to nail down completely and as you can see, 2 people already are shown to have vastly different interpretations of what constitutes fair use and what doesn't. I must admit, though, I am VERY, VERY restrictive in what I define as "fair use" and were I to wear said pretty black robe, I would likely be considered very conservative in my allowances of fair use (and that's coming from a guy who creates copies of Atari artwork for lampshades ).

[RevEng]

I don't think (4) is enough, though, but that's where you get into "fair use" being a very subjective term based upon who is wearing that pretty black robe. To me, if it's commercial and it's a reproduction of an artistic work, you're going to be very hard pressed to find a strong enough argument to get around those facts.

 

The bottom line is that fair use is a very, very hard term to nail down completely and as you can see, 2 people already are shown to have vastly different interpretations of what constitutes fair use and what doesn't. I must admit, though, I am VERY, VERY restrictive in what I define as "fair use" and were I to wear said pretty black robe, I would likely be considered very conservative in my allowances of fair use (and that's coming from a guy who creates copies of Atari artwork for lampshades ).

Yeah, definitely a judgment call. I wouldn't hang my fate on fair-use exemptions if there was any incentive for the copyright holder to stop me.

 

From a tactical point of view, I don't really see a financial incentive for a copyright owner to sue over reproductions of advertisements for defunct products (or artwork for lampshades) ... but that wasn't really the original question.

Edited January 7, 2011 by RevEng

[Mord]

I wouldn't hang my fate on fair-use exemptions if there was any incentive for the copyright holder to stop me.

 

Depending on the fair use exceptions is very risky business anyway. By claiming fair use, you're admitting copyright infringement but arguing that it doesn't apply to your case. If the judge disagrees with you, then you're just left with copyright infringement and an admission of guilt. ie: It ain't going to end well for you.

 

So if you need to depend on the fair use exceptions make damned sure your reasoning is sound, preferably with a few previous court cases that agree with it.

[the.golden.ax]

I don't think (4) is enough, though, but that's where you get into "fair use" being a very subjective term based upon who is wearing that pretty black robe. To me, if it's commercial and it's a reproduction of an artistic work, you're going to be very hard pressed to find a strong enough argument to get around those facts.

 

The bottom line is that fair use is a very, very hard term to nail down completely and as you can see, 2 people already are shown to have vastly different interpretations of what constitutes fair use and what doesn't. I must admit, though, I am VERY, VERY restrictive in what I define as "fair use" and were I to wear said pretty black robe, I would likely be considered very conservative in my allowances of fair use (and that's coming from a guy who creates copies of Atari artwork for lampshades ).

Yeah, definitely a judgment call. I wouldn't hang my fate on fair-use exemptions if there was any incentive for the copyright holder to stop me.

 

From a tactical point of view, I don't really see a financial incentive for a copyright owner to sue over reproductions of advertisements for defunct products (or artwork for lampshades) ... but that wasn't really the original question.

 

 

The concept is exactly like what Cebus did with the lamps. Perfect example. The problem with illuminating existing art (though I could) is that it has print on the flip side and doesn't show it's colors well in back lighting situations. I had originally come up with this idea for original items... now the thought was turned to enlargement and transparency. I just don't want to break the law if I do it.

 

AX

[akator]

Generally speaking, fair use applies to private and individual use.

 

It allowed you to make a mix tape back in the 80s without being accused of piracy. But if you made 100 mix tapes, that was mass reproduction and no longer considered fair use.

 

Fair use allowed you to record a TV show on your VCR and even give it to your neighbor. If that one copy was passed around your block so everyone eventually saw it, that was fair use. Making a copy for everyone on your block was not fair use.

 

Mass reproduction is not, nor will it ever be part of fair use. Depending on the court case, between 5-12 copies seems to be the limit before it is considered mass reproduction. It also depends on the material, with more leniency towards items that have already been mass marketed.

 

It should always be assumed that someone owns the intellectual property and that it is not public domain. Intellectual property is still property with ownership rights.

 

Cebus' lamps were hand made by an individual, which gives him a little leeway. They are not being mass manufactured. If they were hand made by the thousands by many people working in a factory, that might come back to bite him on the ass.

Edited January 7, 2011 by akator

[the.golden.ax]

Okay, so fair use... you can reproduce art from a retail box to be able to advertise it and sell it, correct? So how about this... a one off enlargement of box art, along with inventory (an original copy of the game ) for resale. A combo package for advertisement and sales purposes.

 

AX

[Cebus Capucinis]

Well, my thinking on it is even if technically it IS infringing upon a copyright in some minor form, the producer isn't going to care in any lawsuit-significant way since you're including an original. If you were selling it as a separate thing, it would likely be a bigger deal, but if it's part of a "package" deal including their original work, that's different.

 

Now you have my curiosity piqued as to what it is, which means I'll be buying....

[jahfish]

theft is when a label produces CDs that cost a dollar and sell them for 20, while the copyright owner only gets a dollar from the money made on the CD ...

 

theft is also to sell CDs for the same price as vinyls, when they will be hanging out with the ET carts in Alamogordo in 25+ years (if they haven't been scratched before ...

 

nowadays musicians make their money with gigs and merchandise ... with real live music ...

 

this why why some suckers that just press buttons on their computer are whining about getting their music "stolen" as they hope to make money strictly from the sale of music. usually people who need "autotune" and fully automated sequencers to produce their music ... it is because too much non-musicians are fiddling around in the business nowadays.

 

tell me why was the music industry doing better in those old days when we were allowed to record our music on cassettes and when the music was passed around on cassette promos for free before the release? shouldn't it have been worse for the industry? it wasn't ... music promotion was done a lot better and you weren't immediately forced to buy ... you simply chose to buy when you liked it ... even though you could have recorded it without having anyone labeling you a thief!

 

and honestly: when i hold a vinyl record in my hands, i have something nice in my hands! i have a full size cover i can look at. i have a vinyl record that my grand-son will still be able to listen to. i hold something in my hands that feels like it has a value. i never get that feeling when i have a CD in my hands. Occasionally i will have a CD of a friend of mine in my hands and tell him "oh i have that one on vinyl" and this piece of plastic immediately becomes redundant and valueless as even my friend becomes envious about the vinyl i own.

[Reaperman]

Okay, so fair use... you can reproduce art from a retail box to be able to advertise it and sell it, correct? So how about this... a one off enlargement of box art, along with inventory (an original copy of the game ) for resale. A combo package for advertisement and sales purposes.

 

AX

As far as this wikipedia article went on fair use vs. derivative work.

 

This issue arises, typically, in the context of the defendant purchasing a copy of a picture or some other work from the copyright owner or a licensee, and then modifying it. For example, pictures from greeting cards might be affixed to tiles or one kind of textile product might be turned into another that can be sold at a higher price. In Lee v. A.R.T. Co.[6] (the Annie Lee case), when the defendant affixed the copyright owner’s copyright-protected note cards and small lithographs to tiles and then resold them, “[t]he art was bonded to a slab of ceramic, but it was not changed in the process.” Therefore the defendant’s conduct did not give rise to copyright infringement liability. The court held that the defendant's tile-plus-card was too unoriginal to rise to the level of a derivative work, and therefore it could not be a derivative work at all, much less an infringing one.

 

There are enough times it can't be done though. Enlarging a photographer's picture and selling it is tearing well into their rights, but cutting an authorized print up and making a one-off custom collage with it sounds just fine. Of course legal or not, either could attract the attention of the copyright owner's lawyers who will then begin sending nastygrams and taking you to court until you can no longer afford to fight them.

[the.golden.ax]

Okay, so fair use... you can reproduce art from a retail box to be able to advertise it and sell it, correct? So how about this... a one off enlargement of box art, along with inventory (an original copy of the game ) for resale. A combo package for advertisement and sales purposes.

 

AX

As far as this wikipedia article went on fair use vs. derivative work.

 

This issue arises, typically, in the context of the defendant purchasing a copy of a picture or some other work from the copyright owner or a licensee, and then modifying it. For example, pictures from greeting cards might be affixed to tiles or one kind of textile product might be turned into another that can be sold at a higher price. In Lee v. A.R.T. Co.[6] (the Annie Lee case), when the defendant affixed the copyright owner’s copyright-protected note cards and small lithographs to tiles and then resold them, “[t]he art was bonded to a slab of ceramic, but it was not changed in the process.” Therefore the defendant’s conduct did not give rise to copyright infringement liability. The court held that the defendant's tile-plus-card was too unoriginal to rise to the level of a derivative work, and therefore it could not be a derivative work at all, much less an infringing one.

 

There are enough times it can't be done though. Enlarging a photographer's picture and selling it is tearing well into their rights, but cutting an authorized print up and making a one-off custom collage with it sounds just fine. Of course legal or not, either could attract the attention of the copyright owner's lawyers who will then begin sending nastygrams and taking you to court until you can no longer afford to fight them.

 

 

Got it, so keep it off ePay, and don't tell anyone my real name

 

AX

[jahfish]

.... and don't tell anyone my real name

 

what is your real name?

 

backin89?

[the.golden.ax]

.... and don't tell anyone my real name

 

what is your real name?

 

backin89?

 

NO

[Cebus Capucinis]

I know Ax's real name.

 

It's

 

 

Stuff Buyers

 

 

I saw it on my PayPal!

[jahfish]

hey stuff, i know where you live

 

if i see you copying one CD-R, i'll kick off your rear bumper!

Edited January 9, 2011 by jahfish

[Rex Dart]

If I make a repro of an unreleased Atari game from 30 years ago, is that theft? No. The person with the cart still has it, the original owner can still release it, if that is even possible. But if I decide I want to buy a just-released CD from a major artist, and instead settle for a CD-R from my neighbor who also just purchased the CD, that is absolutely theft. I may not have deprived a store of inventory, but I did deprive the music label and artist of money to which they were totally entitled. I'm not even a big fan of the RIAA, but what's fair is fair.

 

No, that's still just unauthorized copying. It's no more theft than would be saying "I'm not going to buy your album". Nothing is stolen either way, but the artist is "deprived" of imaginary cash either way.

[iswitt]

I never pay for physical media anymore. How do I get around it without doing something illegal? The public library. I haven't bought a book, movie, CD, magazine or 360 game in ages because of the library. However, if I want something that the library would never carry (like a NES game), then I MAY shell out a few bucks. I am a notorious emulator user though.

[+Random Terrain]

The library has Xbox 360 games? Damn! I need to check my library! What am I saying? It's the library. They'll be all scratched and sticky. Oh well, I had a few seconds of joy there.

[NE146]

I'll just go ahead and admit I stole every single piece of Apple 2 software I ever used in my life.

[SoulBlazer]

I'll just go ahead and admit I stole every single piece of Apple 2 software I ever used in my life.

 

And I stole almost all of my C64 games as a kid that same way.

[JamesD]

You guys are making this too difficult.

 

Copyright holders frequently refer to copyright infringement as "theft". In law copyright infringement does not refer to actual theft, but an instance where a person exercises one of the exclusive rights of the copyright holder without authorization.[5] Courts have distinguished between copyright infringement and theft, holding, for instance, in the United States Supreme Court case Dowling v. United States (1985) that bootleg phonorecords did not constitute stolen property and that "...interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright... 'an infringer of the copyright.'" In the case of copyright infringement the province guaranteed to the copyright holder by copyright law is invaded, i.e. exclusive rights, but no control, physical or otherwise, is taken over the copyright, nor is the copyright holder wholly deprived of using the copyrighted work or exercising the exclusive rights held.[6]

Linky

[iswitt]

The library has Xbox 360 games? Damn! I need to check my library! What am I saying? It's the library. They'll be all scratched and sticky. Oh well, I had a few seconds of joy there.

 

 

Maybe at your crappy library. But the one I work at is very clean and we have an industrial disc cleaner anyway. Never had a single issue.