copyrights and EagleTalk - USM Forum -- Message Board

Date: May 27, 2005

RE: copyrights and EagleTalk

Date: May 27, 2005

quote:
Originally posted by: ram
" It's too late. Already blown out of proportion. I agree with Invictus: delete the "cut and paste" posts. Link to them at their source. Mr. Mixon has asked nicely (despite the veiled threats, triple negatives and embarrassing spelling). Do the nice thing and accommodate to the extent possible. What does the law require? I have no idea. (I am changing the subject now, going on to a bigger issue.) I work out here in the "real world" that Mr. Ware was talking about in yesterday's Hattiesburg American. As the law changes, I know only about changes in my specialty. Anyone who wanted to spend time with me so that they could get experience in the "real world" would be very bored, very quickly. Why? Because my clients, my customers don't need "cutting edge" help. Hardly anybody does; they need help with matters that are routine to me, but that are beyond their own experience and education. None of us in the "real world" have the time to keep up with the broad developments in areas not directly related to what we do. Because it has been more than twenty years since I was in law school, I have no idea how the law of copyright has changed. I suspect the development of the Internet will have occasioned much change. If I had the inclination and time to learn about "cutting edge" copyright law, I would have to go to a law journal, published by scholars at a law school somewhere. It is in their "real world" that they have the time, indeed, the obligation to keep up with the broad changes, the new developments, across all the different, sometimes disparate fields of study and endeavor. When I was in school, there was much discussion about internships that would give students a chance to gain practical experience in "the real world." One very fine professor (who had come to teaching after a career of successful practice) remarked, "No, this time in school is your only chance to learn the theory. You will have your entire career to gain practical experience, and you'll almost never have the time or opportunity to learn any more theory." So far, his prediction has been correct. So -- back to the original question -- if you want to find out what the law dictates, you're going to have to ask someone who practices or studies that kind of law. In the meantime, delete the offending posts, not as a concession to the demands of the law, or even those of Mr. Mixon. As a "practical" matter, courtesy is easy and very inexpensive ."

This is an exceptionally thoughtful post; I really enjoyed reading it; thanks!

Date: May 27, 2005

quote:
Originally posted by: Miles Long
"Two words: fair use. Bite me, Lanny"

Well, we can say Fair Use, and they can say, Not Fair Use. Who's right? I don't know.

That same professor I referred to above, also used to say, "I've never seen a statute I couldn't drive a truck through." (He was none too sensitive to the issue of dangling participles.) On the one hand, I am skeptical about the purposes of this board being "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" as intended by the drafters of the statute. One the other hand, I would say that the four factors listed in the statute would all militate in favor of fair use: (1) the use on this board is certainly not-for-profit to the AAUP (don't look at those ads at the top of this screen); (2) the nature of the copied material is the informal correspondence of self identified athletic fanatics; (3) the portion copied to this board is insignificant considering the total amount of material on ET alone, much less on all the Rivals.com boards; and, (4) the posting of copied material on this board would hardly effect the overall value(?) of that same material as originally posted on ET/Rivals. (In other words, will someone come here to read the postings and buy the products advertised at the top of this page instead of going to ET to read the posts and buy the products advertised at their site?)

"Fair Use" is certainly an affirmative defense that could be raised. I guess the real question is whether the EagleTalk managers really want to fight about this enough to pay good money to their attorneys to file a lawsuit. (That'd be the escalation adverted to in the original letter). If ET/Rivals goes to the trouble to pay attorneys, they will want their attorneys to get damages (i.e., money) not just performance (i.e., stop cutting and pasting from their board). Then the question will become, does the AAUP want to pay good money to their attorneys to answer the lawsuit? (Does the local AAUP get to use legal services of the national AAUP? Will this be a battle that the national organization wants to fight?) When both sides are well into the exchange of pleadings and discovery, one of the allegations of the AAUP will include the argument that the postings on this board were within the "fair use" exception copied above. The ET/Rivals lawyers will argue that it is not. If matters progress, we will all know the answer when the lawsuit is over. ("I was only ruined twice in my life; once when I lost a lawsuit and once when I won one." - Voltaire)

Two things are certain: It won't be copyright violation just because Lanny Mixon and Seeker say it is. Nor will it be "fair use" just because we declare it so.

Date: May 27, 2005

I meant " . . . hardly affect the overall value(?). . .."

Of course, because there is no value to the original, I could argue that posting it here might effect some value, but that would be a stretch . . . even for a lawyer.

Date: May 27, 2005

quote:
Originally posted by: lawyer
""Fair use" applies only to the use of copyrighted materials for educational purposes. The AAUP-USM message board would not fall within the fair use exemptions of copyright law. Sorry. "

Think you forgot, news reporting, criticism/comment, etc Sorry.

Date: May 27, 2005

Several years ago Southwest Airlines started using a slogan in their commercials that one of their competitors (Air West?) had just started using...the lawyers started circling...SW CEO, Herb Kelleher, contacted the other CEO and suggested a boxing match to settle the dispute, rather than pay lawyers millions. The held the match, Herb lost, the other airlines got the slogan...the sold tickets and donated the proceeds to charity.

I suggest a boxing match between the AAUP board and Eagle Talk!! Use the proceeds to paint the Dome or something.

Date: May 27, 2005

Good post ram. One would think the small number of ET messages posted to the AAUP board would be considered advertisement. Just a teaser to get people to read Eagle Talk and be exposed to their advertisements. I would go so far as to say they may be the ones posting their messages on AAUP just for this purpose.

It isn't fair that we can't post our messages on their board without paying a fee. AAUP can't send an advertisement teaser to Eagle Talk.

Date: May 27, 2005

quote:
Originally posted by: ram
" Well, we can say Fair Use, and they can say, Not Fair Use. Who's right? I don't know. That same professor I referred to above, also used to say, "I've never seen a statute I couldn't drive a truck through." (He was none too sensitive to the issue of dangling participles.) On the one hand, I am skeptical about the purposes of this board being "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" as intended by the drafters of the statute. One the other hand, I would say that the four factors listed in the statute would all militate in favor of fair use: (1) the use on this board is certainly not-for-profit to the AAUP (don't look at those ads at the top of this screen); (2) the nature of the copied material is the informal correspondence of self identified athletic fanatics; (3) the portion copied to this board is insignificant considering the total amount of material on ET alone, much less on all the Rivals.com boards; and, (4) the posting of copied material on this board would hardly effect the overall value(?) of that same material as originally posted on ET/Rivals. (In other words, will someone come here to read the postings and buy the products advertised at the top of this page instead of going to ET to read the posts and buy the products advertised at their site?) "Fair Use" is certainly an affirmative defense that could be raised. I guess the real question is whether the EagleTalk managers really want to fight about this enough to pay good money to their attorneys to file a lawsuit. (That'd be the escalation adverted to in the original letter). If ET/Rivals goes to the trouble to pay attorneys, they will want their attorneys to get damages (i.e., money) not just performance (i.e., stop cutting and pasting from their board). Then the question will become, does the AAUP want to pay good money to their attorneys to answer the lawsuit? (Does the local AAUP get to use legal services of the national AAUP? Will this be a battle that the national organization wants to fight?) When both sides are well into the exchange of pleadings and discovery, one of the allegations of the AAUP will include the argument that the postings on this board were within the "fair use" exception copied above. The ET/Rivals lawyers will argue that it is not. If matters progress, we will all know the answer when the lawsuit is over. ("I was only ruined twice in my life; once when I lost a lawsuit and once when I won one." - Voltaire) Two things are certain: It won't be copyright violation just because Lanny Mixon and Seeker say it is. Nor will it be "fair use" just because we declare it so. "

Is it wise to post this for anyone to read?

Date: May 27, 2005

Yep, this is Mixon and his saddle buddy, Richard Gianinni. What a pair!

Date: May 27, 2005

quote:
Originally posted by: ram
" (He was none too sensitive to the issue of dangling participles.) "

I was walking into the Payne Center, and this little alarm goes off in my head: "Wait a minute," it says, "that was a terminal preposition, not a dangling participle."

Date: May 27, 2005

quote:
Originally posted by: lawyer
"Robert:The fair use provisions provided by "info" are correct. However, they only apply to the fair use of copyrighted materials for educational purposes. Read the provisions carefully. Info bolded the pertinent information. Sorry, Robert. "

lawyer,

With all due respect, I think you will find this position to be inaccurate. info quotes from the Copyright act of 1976 correctly. However the "Fair use" provision covers several things well beyond the scope educational use. As Outside Observer has already noted from the law's excerpt "for purposes such as criticism, comment, news reporting,..." criticism, comment, and news reporting are not exclusive or inclusive to educational use. "Fair use" has also been used to allow for the personal videotaping or recording of broadcast signals for personal viewing at a later time as long as no further duplication from the original copy or distibution of the copy occurs. This particular caveat to fair use is broad and complicated but definitely outside the venue of educational use and one that just about every individual in country has some experience with. It likewise allows for the backup of digital software. It does not currently however allow for the bypassing of protection devices which has been hallmark to the squabbles concerning copyright protection and DVD-Video. The following site provides some good examples of fair use in lay terms which are easy to follow.

http://www.bitlaw.com/copyright/fair_use.html

You are correct in assuming that the fair use exception of the Copyright Act of 1976 bears strongly on educational use of copyrighted materials. It covers an enourmous amount of detail regarding the edu caveat specifically. But bear in mind that if what you suggest were correct, no news reporter would ever be able to quote another individual's writing without fear of copyright infringement. It would likely be inappropriate for one party to copy a style or design from another website verbatim and repaste it verbatim, but the extraction and reprinting of a comment from a website, as long as the author and source of the comment are attributed factually and respectfully, is guaranteed free speech. The key here is attribution. You must attribute the author. When you do this you are covered by the comment and criticism as outlined above. This is the constitutional basis upon which our news media if founded. Limiting someone's ability to factually quote a 2nd or 3rd party would make it impossible for the 1st party to engage in a respectful or factual argument if they were not allowed to reprint a statement to serve as the basis for their rebuttal or comment. Imagine if the court were not allowed to reprint a factual comment to be entered into as evidence, that is most definitely outside the venue of educational use as prescribed for teaching purposes.

Respectfully, I don't think Eagletalk will have much basis on which it can force the issue unless the quotes were modified to harm the author or source (such as slander), the comments were captured in the form of a bitmap and redistributed as such verbatim including logos etc(digital redistribution), or the quotes were not properly attributed to their respective source or author(unfactual reprint). I'm certian there are other more obscure issues which could be outlined as proper grievances, but I havent seen the posts which Eagletalk questions. My primary reason for commenting here was the assertion that fair use only applies to educational use.

By the way, it's good to know things are starting to improve for USM these days.

Joey Ponthieux

Yorktown, VA

Date: May 27, 2005

Thanks for the clarification Joey Ponthieu.

Date: May 27, 2005

quote:
Originally posted by: ram
"
I was walking into the Payne Center, and this little alarm goes off in my head: "Wait a minute," it says, "that was a terminal preposition, not a dangling participle."

"

Thanks for the correction, ram. I was having a hard time keeping my inner pedant in his cage.

Date: May 27, 2005

quote:
Originally posted by: Joey Ponthieux
"

By the way, it's good to know things are starting to improve for USM these days.

Joey Ponthieux
Yorktown, VA"

Uh, Joey, what's the basis for this remark? Or is it more of the satire which seems to abound on the board these days? I thought we were doing an excellent job of conveying the mood of cynicism and despair prevailing here these days--must be slipping.

Date: May 27, 2005

quote:
Originally posted by: Nose in the air
"We're superior, definitely. Surprized you had to ask."

You're right. I can't get my head in a pencil sharpener.

Date: May 27, 2005

quote:
Originally posted by: Voter
" Uh, Joey, what's the basis for this remark? Or is it more of the satire which seems to abound on the board these days? I thought we were doing an excellent job of conveying the mood of cynicism and despair prevailing here these days--must be slipping."

Well, I suppose an inch in the right direction is far more favorable than a mile in the wrong one. LOL

Joey

Date: May 27, 2005

I had dinner with my brother, who participates in several message boards relating to a hobby. (Amazing how intense those can get.) In any case, this exact issue has recently come up with them, with the added complication that at least one is a UK domain, but with servers located in the US. They came to the conclusion that "fair use" applied to them as long as nobody was making money from anybody else's stuff, but the differences in law US v. UK law made it quite interesting and complicated. See, it could be worse.

Date: May 27, 2005

quote:
Originally posted by: LVN
"See, it could be worse."

Thanks, LVN. We all have to take comfort where we can find it.

Date: May 27, 2005

quote:
Originally posted by: lawyer
"Robert:The fair use provisions provided by "info" are correct. However, they only apply to the fair use of copyrighted materials for educational purposes. Read the provisions carefully. Info bolded the pertinent information. Sorry, Robert. "

Sorry, lawyer.

Joey Ponthieux knows a good deal more about these issues than I do--and said it better than I could, too.

It's just as well. Otherwise, Lanny Mixon will be threatening to sue History News Network when I quote some of Insomniac Eagle's immortal remarks in a blog entry.

You wouldn't be same "lawyer" who popped up a couple of times on the Fire Shelby board, would you?

Robert Campbell

Date: May 27, 2005

robert--sometimes i wonder why you comment on certain threads.

Date: May 27, 2005

I thought RC was the historian. His first post on this thread was about preserving some link to material which apparently he references on his blog. After that it gets more conversational.
Sometimes I wonder why any of us post anything. It's hard to see that it does any good, except it's helped keep some people going, and it's brought some people together.

Date: May 28, 2005

If someone has already pointed this out and I missed it, let me apologize for repeating it: It would be a good idea to keep in mind that demand letters like the one from Mr. Mixon to Dr. Young are quite often sent with the full intention of supporting a subsequent lawsuit. Mr. Mixon may well be doing more than simply asking for AAUP to remove copyrighted material. Given the current atmosphere, I would say it is much more likely that his organization is gearing up for a legal battle in the hope of shutting AAUP down (not just this board but the local chapter organization) with excessive legal expense. There are likely to be lawyers on their board. If not, there are certainly enough well-heeled folks in the opposition who would be happy to contribute to a legal fund for the purpose of hurting AAUP-USM.

Date: May 28, 2005

quote:
Originally posted by: Shadetree lawyer
"If someone has already pointed this out and I missed it, let me apologize for repeating it: It would be a good idea to keep in mind that demand letters like the one from Mr. Mixon to Dr. Young are quite often sent with the full intention of supporting a subsequent lawsuit. Mr. Mixon may well be doing more than simply asking for AAUP to remove copyrighted material. Given the current atmosphere, I would say it is much more likely that his organization is gearing up for a legal battle in the hope of shutting AAUP down (not just this board but the local chapter organization) with excessive legal expense. There are likely to be lawyers on their board. If not, there are certainly enough well-heeled folks in the opposition who would be happy to contribute to a legal fund for the purpose of hurting AAUP-USM."

Well, isn't that just what IHL, USM, Shelby Thames and everyone else around here needs? One faction of the university suing another, with freedom of speech getting lost somewhere in there. Talk about the next stupid thing. I say bring it on--let's get the Chronicle back down here along with national AAUP. Maybe IHL will finally say enough is enough and stop this madness.

Date: May 28, 2005

quote:
Originally posted by: info
"Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code Circular 92 --------------------- § 107. Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — (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 fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. http://www.copyright.gov/title17/92chap1.html. Emphasis added."

My attorney says that ET has a pretty good case if they decide to pursue it. You might be surprised to learn that if that happens, if really won't matter what any of you think. It will be decided via the legal system.

Date: May 28, 2005

quote:
Originally posted by: Son of Bubba
" It will be decided via the legal system."

Right, Son. I thought I tried to say that yesterday, but you have put it more succinctly, perhaps.

There have been something like three or four attorneys that have posted on this thread so far and the final consensus about the pertinent "law" seems to be: there is no consensus.

As I have mentioned earlier, my expertise is not in copyright law or litigation, but I have been involved in enough litigation to know that "the law" plays only a small part in the resolution of a given legal conflict. A lot of it is sabre rattling, bullying, intimidation, perseverance, sheer pig-headed stubbornness, available financial resources, attrition, and ultimately, compromise. Almost always there is compromise. That is all part of our "legal system."

I think we are just at the sabre rattling stage right now.

Date: May 28, 2005

quote:
Originally posted by: Son of Bubba
" It will be decided via the legal system."

An afterthought:

One of the nice features of our legal system is that it tends to discourage us attorneys from initiating actions where significant money is not at stake. There are lots of times when clients say, "It's not about the money; it's about the principal." Sometimes litigants stick by that declaration, but usually -- at some point -- as the costs keep going up and up -- it turns out to be about the money.

Date: May 28, 2005

quote:
Originally posted by: Son of Bubba
"
My attorney says that ET has a pretty good case if they decide to pursue it. You might be surprised to learn that if that happens, if really won't matter what any of you think. It will be decided via the legal system."

Beware of Son of Bubba, whose recent posts on EagleTalk speak of "pinheaded professors" and the "crap" on the AAUP message board reminding him of "pre WW II Germany." In the most inflammatory and nonsensical assertion yet, he claims that if "these people ever get the upper hand, they'll be kicking down doors and dragging people off to the gas chambers."

We're being baited. EagleTalkers are being baited too. Even one of the regular ET posters notes of S.O.B. that he can't tell whether S.O.B. or AAUP message board posters are more juvenile.

http://southernmiss.rivals.com/showmsg.asp?fid=1356&mid=53262570&sid=1085&tid=53262570&style=2&Reset=1

(Please note that no EagleTalk message has been copied in its entirety, that I seek only to educate readers of this board through news reporting and to offer comment, that I've referenced the relevant web address, and that I neither make profit from my posting here nor seek to diminish the potential monetary value of S.O.B.'s remarks there. My attorney spent the night at a Holiday Inn and reminds me that, for the right fee, she'll take either side of the case.)

Date: May 28, 2005

Now that's interesting. I thought the professors were a bunch of pinko, commie leftist elitists. Now we learn that they're jackbooted, facist nazi thugs. SOB, et. al., you can't have it both ways. Pick your extreme and stick with it, fellas.

As for being baited, you're right on there. I think there is a move afoot to shut down or at least cripple this board. We have been warned that vengenance will be forthcoming and we shouldn't expect to be left out.

Date: May 28, 2005

If anything happened to the AAUP Board, how long would it take to start up another board?

Date: May 28, 2005

quote:
Originally posted by: LeavingASAP
"If anything happened to the AAUP Board, how long would it take to start up another board?"

An even more important question: If anything happened to the AAUP Board, how long would it take to start up another university?