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Originally Posted by kane
Well, I did a little research and I think you might just be wrong with this. Sure the fair use stipulations you mentioned are listed on the federal government's copyright website. but nowhere on it does it say that you have to meet any specific number of those terms. So you might meet one of the terms, but not the other three (like the case you point out here) and still be in violation. Here is a quote from the site itself. "The distinction between ?fair use? and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
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 in a review or criticism for purposes of illustration or comment; quotation of short passages 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; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.? So it seems to me that fair use is primarily there for someone to use a small piece of the work for a certain purpose not to reproduce the whole work.
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ok this is the 12th time i have pointed this out, look at the list again, do you see timeshifting (reproducing the whole work for later viewing) listed anywhere in that list no yet timeshifting was a fair use as defined by the betamax case. So drawing the conclusion that fair use can only be limited to reproducing a small piece of the work can not be declared as an absolute.
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Look at it like this. Say I make a movie. I write it, direct and produce it. In the movie I use a Rolling Stones song. I use the whole song and I don't have permission from them to do so. I then put the movie in theaters or on DVD to make money. Like the above video I fail the first three tests. I used the whole song, I used it for monetary gain and it was something I made that I want other people to watch. However, you can argue that I am not doing financial harm to the Rolling Stones. My movie won't hurt their record sales. It won't reduce the number of concert tickets or merchandise they sell so then, by your thinking, it is fair use because I am not hurting them.
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my god i can't believe we are going thru this again
did you not see me explictly say
"i think you still missing the point so i will rephrase your question into the most commercially intrusive version i can find which should be allowed."
my example defines the line between what is infringing and non infringing use of copyrighted material. if you step over that line of course you are violating copyright law, that what the definition of "most commercially intrusive version means"
The funny part is you clearly define the extra step you took in your next statement
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Wrong. I can guarantee you two things. First if they found out I was using the song without paying them or getting their permission before the m
ovie was distributed I would get a C&D letter from them. If I didn't remove it they would sue me and they would win. Why? Simple. They license their music to movies, TV, commercials and other things and they make a ton of money doing so. My just using it could damage them regarding how much the can charge in the future. And I if I just use it, others would as well. If the argument is that it is a cover of the song and not the actual song, then I could cover a Stone's song and put it in my movie. I'll sing it myself. The problem is, they still own the rights to that song, not me. You can cover a song if it is made available for that by the owners, but then you have to pay them royalties. I am assuming this girl is not giving Britney any of the money she may be making from record sales.
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Your liciencing arguement comes into play because each song has three copyrights
1. for the lyrics
2. for the music *(score)
3. for the performance.
music industry has standard percentage (defacto liciening rates) for using such lyrics in such a performance. your example (as you so clearly pointed out) violates that liciencing agreement explictly.
No look at the example i gave marie digby is NOT selling the performance she is giving it away, the purchase price of that performance is zero dollars. if you take the standard percentage and multiply it by zero dollars what do you get. zero dollars.
in other words marie digby is fully complying with the defacto licience for the lyrics.
Since i already stated this was example "most commercially intrusive" fair use of copyright material that difference crosses the line i spelled out.
The fact is that difference is not a minor one, it like cross the line running a mile turning around and say see what i am doing way over here is illegal ( well duh).
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Furthermore on the site there is this question: " Is it legal to download works from peer-to-peer networks and if not, what is the penalty for doing so?"
The answer is :"Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution. Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney's fees incurred by the copyright owner to enforce his or her rights." Now to me this is pretty clear. Copyright is there to protect the owner of the product and allow them to control how it is reproduced or distributed. There is no mention of financial damages. Simply that the owner of the copyright should be allowed to control how their work is reproduced and distributed. If this is correct then it means that just because it doesn't damage someone doesn't mean it is protected by fair use.
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the point you are missing is that fair use as defined by section 107 of the act is outside the scope of the exclusive rights granted by the copyright act (copyright) so none of the declarations apply to fair use.
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The way you describe it makes it sound as if anyone can post or share anything and as long as it doesn't do any financial damage to copyright holder it falls under fair use, but that doesn't seem to be the case. It seems a copyright holder also has the right to say how and where their product is used. Simply uploading a video to Youtube that the copyright owner did not give you permission to post is a violation of copyright. There is no financial gain on your part. They may not suffer financial damages, but in the end the own the copyright and can say how and where the product is distributed/reproduced and if they don't want you posting it, you are in violation. Prince just did a major crackdown on Youtube and other video sites banning people from posting his videos because he wants to maintain how they are put out there.
If you simply went by the logic in your post anyone could put anything they wanted on a site and as long as the owner of the copyright couldn't prove they were being financially damaged it is considered fair use. It doesn't seem that that is the case at all.
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hopefully putting the statment in size 7 font make it clear that you are misrepresenting my position
but just to be safe i will quote myself again
i will rephrase your question into the most commercially intrusive version i can find which should be allowed.
you are running a mile past the line i define, saying that because what we both agree is illegal is illegal that line really doesn't exist.
i hope you understand the logical flaw in that postulate.