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Re: Copyright, was Re: 2 tidbits

Poster: Suzanne Metzler <0002152178@MCIMAIL.COM>

Since it was a copyright discussion, I could not resist adding my two
cents especially since it concerns some common misconceptions.
In my mundane life, I am a copyright attorney and this concerns one
of my pet peeves so please bear with me.

<<Climbing up on my soap box>>

>Poster: "Efenwealt Wystle" <efen@hotmail.com>
>Tidbit #1:
>I guess Lord Valentine (of the Midrealm) doesn't read this list to
>defend his copyright, so I will.  He wrote the SCA lyrics to the "My Old
>Man Song" that were posted last week. I generally reccomend that people
>not post a creative work unless they wrote it or have recieved express
>permission from the author. Some of us actually make a meager living
>peddling our creative work. Please remember that republishing  work
>without permission is a violation of copyright law. Thank you, 'nuff
>said. (I'm not yelling or pointing fingers, just delivering a gentle
>reminder.) If anyone wants Lord Valentine's contact info, e-mail me
>privately (efen@hotmail.com).

     To which J. Blackbow responded with:

<<1.  You will note that the song I reposted (isn't that a fencing term? ;>)
<<was originally posted somewhere else, by someone else.  If you're correct,
<<they're wrong too.

     To which Tehair responds:

 Efenwealt is correct.
 You and the original poster (unless it is the creator of the work)
are technically guilty of copyright infringement if
you post someone's creative work without their permission.
     J. Blackbow also said:

<<2.  Unless I've been badly misled and deceived, reposting material on a
<<mailing list doesn't constitute violation of copyright, especially if the
<<reposting isn't for profit.

     To which Tehair responds:

You have been misled.  There is no automatic defense that
says reposting to a mail list does not violate copyright (unless of
course you received the permission of the creator of the work).  Neither
does the nonprofit purpose automatically excuse the infringement. 
You are thinking of the fair use defense to copyright infringement.
 "Fair use" is a legal defense to whar would otherwise be copyright 
infringement (however as
all defenses it only comes into play when you are sued for infringement.)  
Fair use is is a balancing test that the courts use which
takes into consideration the following:

--the use being questioned must be for following purposes: criticism, comment, 
news reporting, 
teaching (but there are regulations on course paks), scholarship, research

--AND the court balances the following four factors in order to determine if 
the particular 
use is fair:

(i) purpose and character of use (commercial or non-profit)
(ii)nature of copyrighted work (stronger protection for non-published works)  
(iii)amount and substantiality of portion used in relation to copyrighted work 
as a whole
(iv) effect of the use upon the potential market for or value of copyrighted 

The court does not give one factor more weight than another.  It is
likely that a court could determine that your use on this list is not
fair use. 

To avoid problems, please do no willy-nilly repost things from other
lists, especially songs, artwork, articles or other creative pieces.
 When in doubt, ask the permission of the owner.  If you can't find
the owner don't post it.

     J. Blackbow also said:

<3.  If we don't know about the song, how the heck can anybody make any money
<off of it?

     To which Tehair responds:

This is true, but you still need to ask the creator's
permission.  You could have asked if anyone knew the songwriter and
then asked the songwriter's permission first.

While we are on the subject, just because the owner prefers that the
song never be written down does not affect the copyrights.  There are copyrights
in performances as well. 

     Getting down off my soap-box now.

In service,

Lady Tehair MacDiarmada/Sue Metzler
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