Re: [tlug] GPL Quote

["Stephen J. Turnbull" <stephen@example.com>]

Dimitar Dimitrov writes:

 > Actually, speaking of "fair use", it has been repeatedly said[1] that
 > in US, outside of the explicitly granted rights, fair use is decided
 > by courts on case by case basis (they know it wen they see it).

That's right.  However, it's rarely a question of the kind of use
(backup copies is one of those rare cases, occasioned by new
technology).  In the case of backups, it was decided that as long as
only one copy was in use, making a backup was no more injurious to the
copyright owner than repair.  The copy was *sold*, not rented for a
given term, and the user-owner of the copy has the right to protect
*their* property.  This is quite different from what most people think
of as "fair use," ie, "I'm poor so it's not fair to ask me to pay the
ridiculously high price."  Naked greed, retail style.  Just as
unattractive as the wholesale corporate style of greed, IMO.

Now, in the U.S., "fair use" means use that is not injurious to the
copyright owner's (artificial) right to fairly benefit from their
property in trade, and the presumption of fair use is stronger when
socially beneficial.  So usually the question is when does quotation
for the purpose of literary criticism (whether in the New York Review
of Books or a Wellesley classroom) or parody overstep the bounds of
"fair use" and become infringement, because people are reading the
review rather than the book.  Obviously, that is going to depend on
the content of the review or parody, and quantitative rules are pretty
well out of the question.

 > Having a precedent makes a case stronger, but a corporation big
 > enough can still file a suit and force a person into settlement (or
 > bankruptcy.)

And what's the big deal about this?  The largest settlement that can
be forced on you is retail price x number of copies.  Remember, it is
*not* a crime to copy, unless done in the U.S. in such a way that you
clearly envisioned making a profit by copying, and even then all you
have to do is pay the going rate for all the copies you made instead
of claiming that you didn't do anything wrong.  To go bankrupt, you'd
have to be making copies wholesale ... as my University did until
about 2000.  There was a lending library of software in my department
office; they bought one copy of Word, Mathematica, whatever, and lent
it out to the professors -- educational or not, that's not fair use;
ditto the common practice of lending the prof's examination copy of a
textbook to the students who then made personal copies by Xerox.

For free software developers, yes, this is potentially a very big
deal.  Extortion-by-lawsuit could kill the movement dead because the
whole point is distributing lots of copies to anybody who will take
one.  *shrug* Freedom is bought with the blood of patriots.  That has
always been true; now it's our turn to get a little red.  I've taken
my chances with potential copyright infringement in a good cause (and
Jeff Friedl, my partner in crime, actually got a cease and desist
lawyer letter from NHK).  Have you done your part yet?

But in general, people who complain about copyright are just as greedy
as the corporations they complain about.  They don't want an exemption
so that they can create new and wonderful things and give them away;
they just don't want to pay the market price for their toys.  Fuck
that!  If you don't want to pay, don't play.  It's not like you'll die
if you can't get the latest Final Fantasy for 1000 yen.

 > There are no universal rules about the size of quotation[2],
 > intended audience and the purpose of replication that will grant
 > fair use.

And there cannot be, because "fair" necessarily implies a balance
between the harm done to the copyright holder and the benefit to
society (not to the user!)  That has to be evaluated in context.

 > Again, some of the big issues here is that "technical means" is
 > quite a vague concept.  Having certain areas of feromagnetic
 > material polarized in certain direction than others is invisible to
 > a human eye, hence reading anything written to your hard drive
 > constitutes using technical means to obtain information.

That's irrelevant to the issue.  Here "technical means" does not mean
the medium which is common to all copies of that work.  It means the
encryption, dongle, passphrase, or whatever that is specific to the
license that you acquired along with the medium.

In other words, it's only vague to those who haven't bothered to look
up what it means, or are blinded by their own greed into thinking that
they have a natural right to getting what they want when they want it
at the price they feel like paying.

 > Whether it is circumvention depends on whether the owner of the IP
 > meant for you (or your operating system, firmware, hardware) to
 > read it.

Not exactly.  The "technical means" must be present.  But they don't
need to be particularly difficult to circumvent, just sufficient to
obstruct you if you don't intentionally circumvent.  If you have to do
something other than stick it in the drive, and maybe untar it, to read
it, it is protected by technical means and under the DMCA it's a crime
to circumvent those technical means.  This is *stupid* policy IMO, but
it is not *vague*, any more than a padlock on a door is vague ... even
if there's a key hidden under the doormat.

 > This may sound theoretical, yet there are a number of people being
 > sued for using bit-copy images in order to play their legally
 > obtained games without having to juggle CDs all the time.

Do you have a citation for this claim?  AIUI, in the U.S. this is now
protected fair use (like time shifting and other media translations),
*unless* technical means are involved.  If technical means have been
circumvented, then a lawsuit is the least of their worries.  This
means jail, bro', and you knew you were doing something wrong when you
circumvented.

 > What's worse, every now and then some companies proclaim that their
 > plain-text file format is actually a trade secret and anybody using
 > it owes them gazzillions of dollars (here is a recent one [3]).

Which is just stupid.  All you have to do about an invoice based on a
trade secret is laugh, unless (a) you signed an NDA or (b) acquired
the information from somebody who signed an NDA.  Unless an NDA is
involved, the fact that *you* know it means it's *not* a secret, and
it loses *all* protection.

Heh, heh, heh.  I hadn't even read the article you cite when I wrote
that.  Now I have, and guess what?  I hit *that* nail so hard it went
through the workbench and is stuck in the floor, quivering.

Doing your homework has its rewards ....