Thursday, March 21, 2019

Copyright and Fair Use


I am done moderating through comments on what a dumb decision this judge made and so on. If you have something to add go for it, but if you plan to simply state a yes or no opinion on the case, I will dump your comment. Also, some pro tips: the odds are excellent that you have no idea what Fair Use is, and you also have not read my piece below which is about the ideas behind fair use and copyright and has almost nothing to do with the case mentioned on PetaPixel.

Please note, again: I don't care if you agree or disagree with the judge. Add something besides your opinion, or your comment will be deleted.

I will delete your comment extra hard if you make it clear that either a) you have no idea what Fair Use means and/or b) have not read my remarks below more or less in their entirety.

Begone, louts.

Here's an article on PetaPixel, about a court ruling. The comments are a saddening microcosm of internet opinions.

People who hold copyrights on things tend to imagine that a copyright constitutes more or less infinite control and rights, because, essentially, it's mine! They imagine that the copyright on a photograph, or a novel, is essentially the same thing as ownership of a hammer. Often they're a little looser about copyrights held by other people.

Copyrights aren't like owning a hammer, and they should not be.

The ability (not the right, the ability) to use a hammer, to rent it out, to sell it, to destroy it, these are all inextricable from the physical object. If I am driving a nail with your hammer, you cannot also drive a nail with it. If I possess it, I can with some effort destroy it. If I take your hammer from you, then you don't have a hammer any more, and you cannot drive nails, rent it out, destroy it. If I take a copy of your novel, you've still got your novel. If I am reading your novel, you can still read it yourself, or give it away. Copyright is about right to copy, because it deals with things that can be taken without taking them away. It's not the same as ownership of a hammer, or a cow, or a tract of land. It's going to look a bit different.

The point of copyright is, at least in theory, to maximize social good. The reason you have a copyright on a photo, or a poem, is not because you are awesome and deserve to sell your poem for tons of money. No, you have a copyright because we have as a society decided that we'd like to encourage you to make more poems, so we give you a bundle of rights that allow you to make money and otherwise benefit from making poems. This is quite a new idea, whereas the idea of owning a tool or a cow is many thousands of years old, at least.

You get these rights to your poem, or your photo, as a part of a quid pro quo. Since the point is social good, that means that we, as society, get to benefit from your poem. We get to read it, and, this is important, there is a doctrine of Fair Use that gives us out here in the world access to further benefits. We can, in particular, use your poem to make new things from. We can build our ideas on top of your ideas.

This is extremely important to intellectual and cultural progress. If we cannot build on one another's ideas in a fairly liberal way, society stagnates. See Nina Paley's video, cited below.

Things which can be copyrighted differ from hammers. A hammer has a certain utility, but its utility is nothing like that of an idea. Your poem can serve as the basis for a tower of ideas, infinitely tall and wide. Your poem can spark almost anything. If I copy your poem, the possibilities are rather broader than if I simply take your hammer. Your poem probably sucks, and will go nowhere, but that's not the point. What if it could lead somewhere?

Powerful entities which hold copyrights (i.e not you) work more or less continuously to weaken the quid pro quo and to turn copyright into, essentially, the same set of rights as hammer ownership. This is a terrible idea. Worse, the entities which do this work are never the original artist, and they are never seeking to benefit the original artist.

Much as I hate TED and all its campfollowers, I am going to point you to Nina Paley arguing at a TEDx very cogently about the flaws of copyright: Copyright is Brain Damage.

Fair Use is, by design, pretty vague. It's codified in law as a set of things to be considered, not as anything that even resembles a set of rules for what is and isn't Fair Use. Case law provides more guidance here, and Fair Use tends to differ wildly by type of medium.

In particular, the RNC's use is probably Fair Use. I'm not a lawyer, but I've looked at some cases, and this looks reasonable.

Fair Use is a really good idea. You should support it and, perhaps, try to have some notion of what it actually is.


    It seems that the judge is right about several aspects of Fair Use.

    1. I hear rumors that judges have access to google as well, and may even have the ability to access even more powerful resources on the so-called "laws"

    2. Yuppp....dat's what de say...

  2. It is hardly transformative to slap some cheap political gibberish on an image and call it fair use. Just one copyright attorney's humble opinion.

    1. Allow me to ever so gently point out that claiming authority on the internet does not bolster one's case, it undermines it. Absent evidence either internal or otherwise, people will assume you are lying.

  3. You take and use the image - you pay for the right to do so. They are not commenting on it nor using it as a parody. They took and used it for political purposes. Pay for the use instead of stealing. Fair Use is narrowly defined and this Judge has head firmly planted in his Ass if he believes this is OK. The idiot Judge even got the 'twitter use' wrong as it was never there. Hope ASMP or another group will take this on. Judges too damn stupid to understand the law and actually read the facts make poor decisions.

    1. You are quoting the PetaPixel idiots and chapter and verse, and are stupid. Have a nice day.

  4. Frankly, this is not an issue which provoked any thoughts that I believed that the world needed to hear. But that “COMMENTS ARE MODERATED” all-caps scare language triggered an internal need to see if I could clear the bar.

    What strikes me is the obvious irony at work and the failure of anyone to point it out. Not Molitor, not Peta Pixel, not Nina Paley. Everyone I just mentioned seems to be in favor of the spread of ideas and against so-called “permission culture.” (Oh, the damnation one can inflict with the simple “so-called.”)

    The irony I speak of is this: The judge in the underlying case ruled in favor of the spread of ideas and against permission culture. Perhaps he’s a 60s leftover who is against the Man’s permission culture. Maybe he’ll make his own TED talk. Let this photo be free, he ruled, let its ideas spread and contribute to the larger culture. That point seems to have gone unnoticed.

    This is just a guess but I’m guessing that my reaction is typical—I’m pro ideas, anti permission culture, but I think this judge was wrong. Is that a contradiction? I don’t think so. Judges can be wrong like anyone else. But it also shows another emotion which I’m guessing is not atypical—I’m all for the free flow of ideas but I don’t want anyone messing with my stuff. Unless they pay for it, of course.

    1. I'm willing to believe that the judge has more information than I do, and is therefore more likely to get it right than me (or any other internet rando). Which isn't the same thing "is definitely right" mind you.

      Whether the ruling is "right" or not in this case (it's not even clear to me that "right" and "wrong" are meaningful, given that Fair Use is a vague set of ideas and some case law) it has the general shape of a pretty standard Fair Usage.

      Once you know what the hell is actually going on, the argument becomes "well, does it clear the hurdle or does it fall a bit short" which is most definitely not the argument most internet randos are having.

      While I feel the discomfort of having someone mess with my stuff I have to say that, after due consideration, I don't actually give a damn. If someone can turn one of my pictures, or essays, or some combination of them, in millions of dollars, well, more power to 'em.

      But that's me, and I'm not you, or anyone else. I'm just me.

  5. I should have gone into more detail about why both you and the judge are wrong about this being fair use. It’s a nice picture, it looks good in both its original use and its repurposed guise. What it does not do is build upon its original use in any fruitful way. Its new use does not spark, thought, reflection, or discourse. The new use is neither a satire nor a parody. It simply does not contribute to the exchange of ideas, which is why we allow it.

    I’d mention my JD degree but apparently it will weaken my argument.