Re: Copyright, was Re: 2 tidbits

["David Ritterskamp" <blackbow@sprynet.com>]

Poster: "David Ritterskamp" <blackbow@sprynet.com>

See below-
-----Original Message-----
From: Suzanne Metzler <0002152178@MCIMAIL.COM>
To: David Ritterskamp <blackbow@sprynet.com>
Cc: merry rose <atlantia@atlantia.sca.org>
Date: Monday, November 03, 1997 7:34 PM
Subject: Re: Copyright, was Re: 2 tidbits


>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>>
>
>     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.

[You flatter me by thinking that I was thinking of this specifically, but no
matter. ;>]

> "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)

[Er, wasn't this a post to a mailing list that is populated by members of a
non-profit corporation?  I'd characterize that as non-commercial.]

>(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
>work
>

[Heh...if I repost the words to a song by Author X and five thousand people
beg and plead for Author X to release that song, as well as more of his
stuff, in whatever form they can get their hands on, Author X is likely to
see the monetary gain in this, and do that very thing.  Do you think I'm
going to see one freaking dime of that money?  But without my action, Author
X never sees a dime himself.]

>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.
>

[Good luck.  As I said recently, until somebody pins down exactly what
can/can't be done with e-mail, it's all academic.  If I were reposting a
.WAV of the song, packaged together with other .WAV files, to a mailing list
of people that sent me money for those .WAV files, I would naturally have
already checked with the authors of the songs, and quite likely have done
something copyright-wise.]

> When in doubt, ask the permission of the owner.  If you can't find
>the owner don't post it.
>

[I don't think it's that simple.  I suspect that, in the event that
something this ridiculous ever made it to court, that it would be decided
that there was no attempt at monetary gain on my part, nor was there any
attempt on my part to claim the work as my own, nor, upon first singing the
words, did the author say "anyone who sings this or reproduces it in any way
owes me $1.", and thus did not attempt to protect his "invention".]

>     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.
>

[Hmm...who recompenses the SCA, Inc., for providing the atmosphere in which
these songs are written?  For most assuredly that's where they came from.]


>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

[Tehair has a point there.  I don't dare sing "Ireland" by Garth Brooks
(even though it's quite catchy and easily passes for a SCAdian song)
because, who knows, somebody might object on the grounds of copyright laws!
Somebody else can't sing "Born on the List Field" because of the same
reason!  Somebody else can't sing, etc., etc., etc.  And before you know it,
NOBODY can sing ANYTHING.

Crap, folks.  Does anybody besides me know that the song "Happy Birthday to
You" has been copyrighted for some time now, by the descendants of the
original author?  Yet no one makes an attempt to secure any compensation for
it whenever it is sung.

In my opinion, reposting the words to a mailing list of people who might be
interested/amused by the song doesn't constitute a problem, any more than
singing it to the same group of people would.

I invented the Thumper (golf club tube arrow capped with a rebar cap
(plastic, not to be confused with actual chunks of rebar metal) head).
Estrella War now doesn't want to use anything EXCEPT that arrow.  Pretty
flattering, no?  Do I give a damn about the copyrights on the arrow?  No.
I'm flattered that somebody likes the thing enough to use it exclusively.
Is there a copyright on the arrow?  Almost certainly.  Is the arrow
exclusively "my" intellectual property?  Doubtless.

Do I therefore demand monetary recompense from the autocrat of Estrella
Wars?  No.  Give me a break.  If I were to do something that asinine, they'd
find another arrow to use, I suspect.

There are things in the SCA that other people think should be done a
particular way, because "that's the way the game is played".  There are no
written rules regarding them, and yet people are expected to A)know the
rules, and B) follow them to the letter.

If anybody expects anybody else to do A and/or B, those rules need to be set
down somewhere, and I will then follow them.  Likewise, when there are some
concrete rules regarding what e-mail can and cannot do, I will follow
*them*.  And if anybody actually knows anything about those rules, you can
bet that they'll trumpet them to the rest of the world in due time.  And if
you do, feel free to let me know.  I'll go look, and follow them
accordingly.

Until then, this is all a lot of smoke and mirrors.

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