A NOT-SO-HYPOTHETICAL TREATISE REGARDING COPYRIGHT INFRINGEMENT

We’re not going to mention any names here. What we will do is take a good close look at the “Fair Use Doctrine” as it exists in the real world under United States Copyright Laws, and not in the wish-fantasy byyfsH qcastle-in-the-sky of some not-so-hypothetical “investigative journalist.” We will also examine the penalties for copyright

infringement, and further, the penalties for filing false DMCA counterclaims against someone who has filed a correct DMCA takedown notice against someone who uses material in violation of the “Fair Use Doctrine” (FUD). Mmm…FUD…footlongs with mayonnaise…

Let’s start the hypothetical examination by creating a character. Let’s call him Parkinson Williams. He writes a book – well, to say he “writes a book” is somewhat generous to Mr. Williams. What he does is collect tweets, blog posts and comments, some of which he has authored, but most of which he has copied from other websites without permission. He edits these posts to create a false narrative about how he has been harassed – for no reason! – by a vicious and hateful cabal of rightwing thugs – YES! THUGS!! To illustrate this alleged harassment, he steals either a portion of (from which he has excised all context which does not paint him as a completely helpless victim), or in some cases an entire blog post, including the 100 or more comments which this post generated.

Now, in our hypothetical, the person responsible for the largest portion of this alleged decontextualized harassment against Mr. Williams – we’ll call him Mr. Carroll, has a long and detailed copyright and usage agreement policy in the Fine Print section of his website. Any objective reading of this policy leads a reasonable person to the conclusion that Mr. Williams has violated this notice and usage policy, because he is a subnormal human with extensive brain damage, poor bowel control and even worse manners.

Hypothetically, of course.

Mr. Carroll acquires a copy of this book that Mr. Williams has “written” in his peculiar way, and finds not only that the arguments put forth by the author are materially false (or “BULLSHIT, to use the vernacular), and represent a theft of copyrighted material from his website. So, he does what any author with any regard for his intellectual property would do: he contacts the self-publishing platform where the book is being sold, and issues a proper DMCA takedown notice, which includes a citation of the infringing material in Mr. Williams’ book, and a link to the original material as published on Mr. Carroll’s blog.

The self-publishing platform has no choice but to remove the infringing material. This is a provision of the Digital Millennium Copyright Act (DMCA). They have no choice but to remove the infringing material after comparing the original author’s work to the material in the book they have contracted to sell and finding the complaint to be valid. The self-publishing platform does this because they are not in the business of defending the copyright integrity of the authors who seek to sell their wares on a below-the-horizon, no-market-for-this-pig-slop-anywhere-on-earth website that no publishable author has ever heard of, where only the most desperate, ego-driven narcissist would go to say they were a “published author” because any reputable literary agent would laugh them out of the office before taking their copy/paste/repeat swill to a legitimate publishing house.

Hypothetically, of course.

No, these scrape-past-the-scum-at the bottom-of-the barrel-and-dive-into-the-rushing-pre-treatment-plant-sewer-pipe self-publishers exist on a simple business model: they very cheaply and electronically store the electrons representing the millions of books that hundreds of thousands of failures in the world believe is the next New York Times bestseller, so they can shave a percentage off the top of each individual sale to pay for the memory space and take a little profit from the cretins who come begging them to “sell” their epic works of literature. Part of this business model is not to edit, fact-check or copyright-check the works they sell, because that incurs cost. They minimize their cost and maximize their revenue (as any good business does) by pushing the liability off onto the desperate author who is probably a subhuman with extensive brain damage, poor bowel control, worse manners, and absolutely zero sense of what really takes place between the “idea” of a book and the actual, successful “execution” of publishable material.

Hypothetically, of course.

However, all is not lost for our hypothetical author Mr. Parkinson Williams. The DMCA also provides that he can file a counterclaim alleging that Mr. Carroll’s copyright claim is false, or that he, Mr. Williams, used the material under FUD.

Now the ball is back in Mr. Carroll’s court. The DMCA mandates that Mr. Carroll must provide the self-publishing platform with a court order, stating that he intends to file suit in a United States Federal Court claiming copyright infringement. Most people who use material improperly realize they are using it improperly. Or in the case of a scoundrel like our hypothetical Mr. Parkinson Williams, the pathetic jackholes could go ahead and use the material, knowingly make a false claim of fair use, and let the complainant go through the time and expense, the very GREAT expense, of filing a copyright suit in US Federal Court.

That would be enormously stupid, but no one has yet accused Mr. Parkinson Williams of having an intellect even half as strong as the aroma wafting up from the seat of his sweatpants.

Hypothetically, of course.

But, just for the sake of our example, let’s say that Mr. Williams is an honest writer, and he honestly believes he has used the claimed material under the FUD. Since this is a hypothetical discussion, it is within the realm of possibility, no matter how farfetched it sounds when measured against reality.

Just go with it…

Mr. Carroll has every right to file a copyright suit claiming that his copyright has been infringed.

The United States Copyright laws fall under Title 17 of the US Code. Sections 107 through 118 deal with the FUD.

Section 107 lists the following specific purposes for which a work may be fairly reproduced without infringing the author’s copyright:
· Criticism
· Comment
· News reporting
· Teaching
· Scholarship
· Research

The section also sets forth four factors that must be taken into account when deciding whether a particular use of copyrighted material is fair.

(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.

The distinction between what is fair use and what is infringement is intentionally left vague in the statute, so that determinations in court can be made on a case-by case basis, rather than relying on precedents that may not apply from prior to future cases. There is no specific number or percentage of words, lines or musical notes that may be taken without permission. For example, taking the six-second hook from Lynyrd Skynyrd’s “Sweet Home Alabama” would be infringement, because it is the central identifying piece of the music. Using “Frankly, Scarlett, I don’t give a damn!” infringes on the copyright of Gone With the Wind. And using Shakespeare’s “Shall I compare thee to a summer’s day?”Frost’s “Two roads diverged in a yellow wood,” also infringes on that copyrighted work.

[damn nitpickers, always pickin at my nits… – PK]

Also, crediting the original source of the material does not automatically provide a defense against infringement.

Now, let’s say at this point that Mr. Parkinson Williams has NO IDEA WHATSOEVER what material Mr. Carroll is claiming he holds the copyright for (I know, the hypothetical blanket is starting to stretch pretty thin, ain’t it?). We will say, for the purpose of this argument, that Mr. Carroll has claimed that Mr. Williams has infringed on Mt. Carroll’s original copyright in one case, and in a second case, Mr. Carroll is claiming an infringement against a work for which he has recently acquired the relevant copyright from the original author.

Assuming Mr. Carroll does, in fact, own the work involved, Mr. Williams has the four pillars of the FUD to fall back on.

1. What was the purpose and character of the alleged infringing use – was it used for educational , personal or non-profit purposes, which is the safer end of the spectrum? Was it for criticism, commentary or news reporting, which sit in the middle of the scale? Or was it for use in a for-profit venture, which is much higher risk? Clearly, in the case of both works referenced above, they were included in Mr. Williams’ strangely “written” books. So this pillar of the FUD works against Mr. Williams.
2. What was the nature of the copyrighted work(s)?
a. In the case of Mr. Carroll’s original work, it was a blog post which made no reference to Mr. Williams. The post itself included over 100 reader-generated comments, many of which did refer to Mr. Williams in unpleasant language. The blog post itself was a one sentence bit of non-sequitur humor, and the comments became an online conversation of sorts. That Mr. Williams was a subject of the conversation does not grant license for use of the post and all its comments. The subject matter is not relevant to the question of infringement. This too works against Mr. Williams.
b. The second work was a parody originally published pseudonymously on a third party blog. The work parodied a post that Mr. Williams himself had written and posted on his own blog some time previously, and then taken down, as he is often wont to do. Hypothetically, of course. The original subject of Mr. Williams’ self-described “satire” was Mr. Carroll and his family, who Mr. Williams undertook to describe in unpleasant language. The pseudonymous third party’s parody took Mr. Williams’ work and turned it about on him and his family, using somewhat more unpleasant language. In addition to the actual parody, the pseudonymous blogger undertook to explicitly identify the work as a parody, and to identify Mr. Williams as the writer and publisher of the original work on which the parody was based, as well as identifying Mr. Carroll as the original target of that work. This work was parody, a work of comedy clearly identified as such, and included a context which Mr. Williams did not see fit to include. Again, the subject matter of the work is not relevant to the question of infringement, so Mr. Williams again comes up short.
3. How much of the copyrighted work did the alleged infringer, Mr. Williams, use? There seems to be a question regarding what a copyright covers. Is a blog a copyrighted entity in and of itself? Are individual entries on the blog copyrighted? Is there a reasonable comparison to be made by looking at other media?
a. Is a musical album a copyrighted entity? Common sense requires assent. What about the individual songs on the album? If they are not individually copyrighted, how then can royalties be paid to multiple songwriters, lyricists and other performers who contribute to one song but not to others?
b. Is a television series a copyrighted entity? Again, common sense requires assent. What about individual episodes? The same question applies – how are actors, writers and directors paid residuals on syndicated broadcasts otherwise?
c. What about books? Books are of course individually copyrighted, but are the chapters within each book covered by that copyright? Common sense – they must be.
So what do these comparisons tell us? They tell us that a copyrighted work broken into individual parts is still copyrighted. One cannot sample a song and claim under fair use that it is but a small fraction of an album, nor illegally broadcast an episode of a television show claiming it is but one of 175 episodes. Likewise, one cannot re-publish a whole chapter of an Elmore Leonard novel or a Laura Hillebrand memoir and claim it is but a small portion of their body of work. The fact that Mr. Williams pirated an entire post with comments in the first case, and an entire parody, stripped of its explanatory context and twisted into painting Mr. Williams as a victim of totally undeserved insults in the second case, surely must weigh against him as well.
4. How does the use of the material affect the value of the infringed material? Mr. Williams can joke that his use of it improves its value, but, while hypothetical, this is not a joking matter. Hypothetically, Mr. Williams is a thief, and he knows it. Hypothetically, Anne Frank was not interested in selling her diary. Hypothetically, Vincent Van Gogh couldn’t sell his paintings to feed himself while he lived. The value of a thing is not determined by the money one can receive for it. Mr. Williams might have dogs that he would not (or could not) sell, but that has no bearing on their value to him. Hypothetically speaking, Mr. Williams may or may not have expressed in the past a great terror at the thought of losing those hypothetical dogs. Their hypothetical value does not have a hypothetical dollar amount; their hypothetical value is intrinsic and subjective.

Hypothetically, let us suppose that Mr. Williams is attempting to make a similar but opposing Fair Use argument on his own blog. Also hypothetically, let us note that Mr. Williams claims it is his standard policy to use segments of a blog and link to the blog in question when excerpting the work of others. Finally, let us suppose, hypothetically of course, that Mr. Williams include in his argument a purported quote from the Electronic Freedom Foundation – a quote for which, contra his stated “standard policy,” he DOES NOT provide a link (and isn’t that instructive of the motives of Mr. Williams?):

This factor is often held to be the most important in the analysis, and it applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, it’s unlikely to be a fair use; uses that serve a different audience or purpose are more likely to be fair. Linking to the original may also help to diminish the substitution effect. Note that criticism or Parody that has the side effect of reducing a market may be fair because of its transformative character.

Have people stopped reading Mr. Carroll’s blog because Mr. Williams steals his content? If anything, more people seem to be reading it.

But that is not the question we seek to answer in determining whether Mr. Williams’ use is fair. The question is, does that use affect the ability of the original author to generate a revenue stream from the infringed content? Could Mr. Carroll compile a number of his own blog posts (or even include someone else’s posts) on a particular topic into a book? Is such a My Slow Journalistic Death thing possible? Could such a Brain Dead idea possibly make any money? Would it be Intentional Infliction of Emotional Distress to consider such a thing? Or is it all just Cyber Ins@nity?

Hypothetically, of course. Or hypocritically, even.

It would seem reasonable to think that the owner of the material should be entitled to any revenue that could be generated, especially when considering the fact that the first copyrighted work is reproduced in toto and has no transformative character. Likewise the second work, which does have an entirely transformed character thanks to Mr. Williams’ underhanded and self-serving editing techniques. Additionally, the fact that Mr. Williams included the infringing material in books whose intent was to generate revenue would also tip the scales against him.

So again, given the hypothetical certainty of what copyrighted material Mr. Carroll is charging Mr. Williams with appropriating, a conclusion would seem reasonably easy to reach. It would seem, based on what we know, that Mr. Williams will soon be on the hook for two (or more, perhaps even hundreds more) counts of copyright infringement.

Hypothetically, of course.

A forty-three year old report (which predates Al Gore’s hypothetical invention of the internet and all the hypothetical internet copyright jurisprudence by at least two decades) puts it this way:

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts [but not entire works – PK] in a review or criticism for purposes of illustration or comment; quotation of short passages [but not entire works – PK] in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied [geez, why does this sound so familiar? – PK]; summary of an address or article, with brief quotations [but not entire works – PK], in a news report; reproduction by a library of a portion [but not entire works – PK] of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work [but not entire works – PK] to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reposts; incidental or fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

So let us assume, EXTREMELY HYPOTHETICALLY, that Mr. Williams will prevail on the issue of fair use.

On second thought, let’s not. Because Mr. Williams is probably a subhuman with extensive brain damage, poor bowel control, worse manners, and absolutely zero sense of what really takes place between the “idea” of a book and the actual, successful “execution” of publishable material.

In other words, despite any protestations or disingenuous arguments to the contrary, Mr. Williams does not have a legal leg to stand on.

So let us instead consider the recourse available to the aggrieved party, Mr. Carroll.

Section 512(f) specifies:

Misrepresentations. — Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

Shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Given that Mr. Parkinson Williams suffers [he’s such a victim!! ELEVENTY!! – PK] from a neurological disorder that is worsened by the stress caused whenever he stomps his own BBs, his request for damages due to a frivolous suit would likely be laughed not just out of the courtroom but out of the entire courthouse, past the neighboring lawyer watering hole, down the street around the corner and up the hill.

The damages from once again (and repeatedly) stomping his own BBs, on the other hand, are likely to be steep indeed.

Hypothetically, of course.

O.o

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Author: Paul Krendler

The Thinking Man's Zombie

13 thoughts on “A NOT-SO-HYPOTHETICAL TREATISE REGARDING COPYRIGHT INFRINGEMENT”

    1. Perhaps so! We'll have to inquire if Mr. Shakespeare (Deceased) wishes to weigh in through his counsel Spiro Agnew (Deceased) who has intimate knowledge of the workings of the MD court system and Federal Courts in Balmer ...

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  1. Mr. Hoge beat me to it.

    I'd also point out that your Hypothetical Mr. Williams doesn't get to decide which copyright he gets to claim fair use defense for infringing. Mr. Carroll does. Mr. Carroll would own the copyright on each blog entry, the copyright on the entire blog, the license for the copyright for each comment, as well as the copyright on the blog entry and the licensed content. Mr. Carroll gets to decide which copyright he feels has been infringed. Mr. Williams has to defend fair use based on the copyright Mr. Carroll decides, not the one he wants Mr. Carroll to decide and certainly not the one gives Mr. Williams the best chance at defending.

    Mr. Williams, or I suppose the EFF if the quote is true, is wrong about the "most important" aspect of the test, at least according to the Supreme Court. In ruling on Campbell V Acuff-Rose, the Supremes piked the first part of the test, the purpose and character of the use, as the most important. Really, there isn't a single most important, it is all based on each individual case.

    If I were to read Mr. William's hypothetical blog post, I would hypothetically walk away with the belief that Mr. Williams feels that this test is like a checklist. That he believes that the hypothetical judge looks at a piece of paper, or perhaps an iPad app, and checks of each point as either for or against the fair use defense. And, in the event of a tie, the fourth check is more important so you win. That is, hypothetically, wrong. Mr. Williams could pass three of the four tests, and if the violation to the remaining one is significant enough, the Fair Use defense fails.

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    1. The reading I have done on fair use concurs. Each case is individualized, and if a fair use defense fails on any of the four pillars, it fails as a whole.

      And yes, the burden is on the infringer to defend his use, not on the owner to prove copyright.

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      1. lets not forget fellows,
        part of his "defense" is that this EVERYBODY DOES THIS EVERYDAY ON THE INTERNET!!!!1!!1!!!, so Mr Williams completely and totally shouldn't be held to account for his own thiev...OOPS I mean "borrowing" in over 100 instances as put forth in a certain lawsuit against him...

        O.o

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      2. There's also the informal "fifth pillar," which basically boils down to "are you an asshole?" Fair use is a subjective determination, and courts have surprised observers by finding infringement where the fair use factors seemed to militate toward the defendant. One of the best examples of this is the Garbage Pail Kids case, Original Appalachian Artworks vs. Topps.

        Oops, Mr Williams!

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  2. Reblogged this on Running Wolf and commented:
    Oh look. I wasn't the only one thinking about Copyright Infringment and the Fair Use Defense today. Here's a more hysterical and more hypothetical view on the subject.

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