How Many Times Did You Violate Copyright Today?

When you referred to TechDirt as always reliable, I knew I was in for a bunch of inaccurate nonsense, and I was right. Much of their so-called information would make a politician blush or feel envious about the skill of their truth twisting.

A good way to determine infringement in the real world is the profit test.

If you read a Dr Seuss story to you kid or a group of kids for free, that’s legal.

If you read a Dr Seuss story and charge admission, that’s illegal because you are making a profit.

So, singing “Happy Birthday” to a friend or family member is legal.

Most of the other things you mention are also legal since they are not for profit.

A second test is the taking profit motive. If you take profit from the legitimate owner, then you are violating copyright. Putting those JK Rowling books online for free denies her a profit so you are in the wrong.

A third test is the taking the credit motive. If you steal someone’s artwork or craft project without their permission and claim its creation, then you are messing with their copyright. Many craft projects, however, are offered as how-to so that’s legal.

Not a lawyer or anything, but I’m pretty sure profit doesn’t matter in determining whether something’s a copyright violation or not, unless you’re talking about it in context of the four-factor test to determine fair use. Otherwise, fanfic’s “this isn’t for profit” disclaimer would make it legal. By the same token, fanfic often increases the demand for the original work rather than replacing it, therefore it’s not taking profit away, so it should be doubly legal.

Except it’s not. Funny how that works.

Looking for example copyright notices, of the sort you might find in books, I find the example:

All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law. For permission requests, write to the publisher, addressed “Attention: Permissions Coordinator,” at the address below.

Nowhere in that do I find the phrase “…unless it’s not done for the purpose of making a profit” or “unless it doesn’t affect the market for the book.”

Marilynn Byerly is right. These wooden-headedly literal claims about copyright infringement are beyond silly. They flow from a misunderstanding of the nature of law.

For instance, seeing someone on the bus watching their (legally owned) movie isn’t illegal. Showing that movie in an auditorium with hundreds of people without paying the proper fees is. But how easy would it be to write a law that distinguished between the two. Where would perfectly legal become terrible illegal? Two people? Five people? Twenty people? Does charging matter? What if the movie is free but those who watch pay for food and drinks? Endless, endless troubles. A law would need to be a thick as a stack of encyclopedias and still would not cover everything.

If you want to know what’s infringing, look what federal courts have ruled as infringing. It’s quite limited and, with but a few exceptions, sensible. And that’s as it should be. It’d be virtually impossible to create a written law that take in all the complexities. That’s why this remark makes no sense:

“… but Bell’s point is pretty clear: “the fact that no one thinks copyright law should be fully enforced, demonstrates the need for reform.” In fact, he notes that pretty much everyone agrees that full enforcement is “undesirable and counterproductive.” And, really that should be a clear sign of just how flawed the law itself is.”

This Tom Bell, to my amazement, is a law school professor. But he seems to have no understanding of the distinction between Anglo-American common law, where laws are general and the gaps are filled in by judges, and European or Continental law, where attempts are made to define every little detail and national constitutions can run to hundreds of pages that defined every aspect of life. The result is such a mess, the Nazis didn’t need to bother to alter Germany’s Weimar Constitution to rule as a dictatorship. Attempting to take into account every contingency, Weimar had emergency decrees. All the Nazis needed to do was point to them. In contrast, our Bill of Rights has no emergency overrides.

Yes, copyright needs to be changed. Our current laws date from the late 1970s and need to be revised for all the technologies that have been developed since then. We also need to do something about lawyers who abuse laws with cease and desist letters in all areas, not just copyright.

But we need not go down Bell’s foolish path of trying to lock down every issue and attempt to appropriate every possible scenario into legal or illegal boxes.

I know. I fought and won a copyright dispute in Seattle federal court. The very generalities and flexibilities of our copyright law aided me. No legislature had sat down and decree that a detailed chronology of a complex work of fiction was infringement or not. In fact, neither had any court. I was only totally untrod ground.

In my defense, I needed only to argue that Tolkien’s Lord of the Rings was so complex that it was legitimate fair use for me to create a chronology of it. The judge, who dismissed the Tolkien estate’s lawsuit “with prejudice” also didn’t have to deal with a too detailed law that attempted too much. It was enough that LOTR is incredibly complex chronology and that Tolkien almost never gives dates in his narrative. Attempting to put that OK for LOTR not OK for Little Bunny Foo Foo, into written statutes would have been impossible. For most of life, it’s best to let people (judges or juries) deal the the particulars.

One final note, the very title of that video, “In Today’s Copyright System, Everyone’s a Violator” is total bosh. That makes as much sense as claiming that everyone who brushes up against someone in a crowd is committing assault or someone who cuts across a yard is committing trespass.

So relax, most of you are not criminals.

–Michael W. Perry, Untangling Tolkien

I should also remark on this posting by Chris: Nowhere in that do I find the phrase “…unless it’s not done for the purpose of making a profit” or “unless it doesn’t affect the market for the book.”

That matters not. Someone can lighten the rights they are claiming in such statements. In my latest book, Lily’s Ride: Rescuing her Father from the Ku Klux Klan, I state: “Copyright © 2014 by Michael W. Perry. All Rights Reserved. Teachers and websites may use up to three chapters from this book without seeking permission.”

But there’s simply no way I can make and enforce claims unsupported by law, by prior court decisions, and by the particular court that handles my case. I can’t decide that fair use doesn’t apply or that legitimate money-making from my book isn’t acceptable simply because I don’t like it. For instance, I can control whether a movie is made from my book, but I can’t keep someone from making a parody of it–although given the seriousness of the topic, I doubt anyone would try.

In short when an author asserts copyright, he gets what the copyright law is, like it or not. He can weaken its demands, but he cannot strengthen them by what he does or does not claim.

By the way, Lily’s Ride is based on a 1879 bestseller. That means I can’t hold the copyright to those particular words. My copyright extends only to the selection of chapters I made from a much longer book and the extensive historical commentary I wrote.

When I file for copyright, I’ll state that. But there’s no requirement that I include all those limitations and gottchas on my copyright page. In fact, it’d be foolish to do so, since copyright law can change. By simply asserting copyright, I get all the rights of copyright at any particular time. It’s be stupid to make claims that won’t later be enforceable or to worry that any claim I don’t make on that copyright page isn’t enforceable.

–Michael W. Perry, Lily’s Ride