No subject
Tue Apr 20 23:23:57 UTC 2010
"see *Sony Corp. v. Universal City
Studios<http://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_Cit=
y_Studios,_Inc.>
* for a case in which substantial copying=97entire programs for private
viewing=97was upheld as fair use
see *Kelly v. Arriba Soft
Corporation<http://en.wikipedia.org/wiki/Kelly_v._Arriba_Soft_Corporation>
,* where the Ninth Circuit <http://en.wikipedia.org/wiki/Ninth_Circuit> hel=
d
that copying an entire photo to use as a thumbnail in online search results
did not weigh against fair use, 'if the secondary user only copies as much
as is necessary for his or her intended use.'"
Simple put just refuting one point though is not enough!
Also from Wikipedia, "Once these factors were codified as guidelines in 17
U.S.C. <http://en.wikipedia.org/wiki/Title_17_of_the_United_States_Code>
=A7 107 <http://www.law.cornell.edu/uscode/17/107.html>, they were not
rendered exclusive. The section was intended by Congress to restate, but no=
t
replace, the prior judge-made law. Courts are still entitled to consider
other factors as well."
My statement that it was non-commercial use isn't implying that someone is
restricted from doing so, but what I was getting at is Matt didn't develop
the plugin as a commercial product, it is included in wordpress a free
product, not a commercial product, and the point that the end use generates
no commercial value for the user is also a good point to this.
Plus something to consider is also the fact that even though the whole
lyrics are in the plugin, they are never displays together which would
probably be taken into consideration ect.
On Wed, Dec 15, 2010 at 4:02 PM, Chip Bennett <chip at chipbennett.net> wrote:
> Actually, it's the other way around: if the copyright owner can refute an=
y
> one of the four components of the fair-use defense, then the use will be
> deemed to be infringing. Now, certainly, there's a
> degree-of-impact/infringement regarding each of the four components, but =
in
> this case, I don't see how that helps.
>
> Again: the educational use of the *Plugin* has nothing to do with the
> educational use of the *copyrighted work*. The educational use regards
> WordPress Plugin development, and nothing to do with the nature of the
> copyrighted work (song lyrics), e.g. music appreciation, composition, etc=
.
>
> "Hello, Dolly!" lyrics have nothing to do with WordPress Plugin
> development.
> *Any* lyrics (or non-lyrical text, for that matter) could be used to
> demonstrate the explode performed by the Plugin. Thus, use of the "Hello,
> Dolly!" lyrics does not further the educational use of the Plugin.
>
> And that's just Clause #1. Clause #3 ends any argument. The entirety of t=
he
> copyrighted work is incorporated into the Plugin.
>
> Chip
>
> On Wed, Dec 15, 2010 at 5:29 PM, Ryan Bilesky <rbilesky at gmail.com> wrote:
>
> > The educational use, IMO, is how the wordpress plugin system works. No=
t
> to
> > mention the use is also non commercial.
> >
> > Also it is my understanding that you do not have to meet all those
> > criteria,
> > just have a balande, thus meeting just 2 of them is probably good enoug=
h,
> > meeting 3 or all 4 just makes an even stronger case.
> >
> > Again this is based on my understanding and intrerpretation, im not a
> > lawyer
> > but this seems obviously fair use to me.
> >
> > Anyway i'll leave it at that.
> >
> > On Dec 15, 2010 3:13 PM, "Chip Bennett" <chip at chipbennett.net> wrote:
> > > 1. *Educational/Non-Commercial Use:* The use of the "Hello, Dolly!"
> > > lyrics do not further any educational purpose of the Plugin, and lack
> of
> > use
> > > of those lyrics would not negatively detract from such educational
> > purpose.
> > > Any public-domain lyrics could be used in place of the copyrighted
> work,
> > and
> > > the educational purpose (to teach WordPress Plugin developers how to
> > > implement certain Plugin API features and other functions) would be
> > > furthered equally as it is with the copyrighted work being used. By t=
he
> > way:
> > > distributing the Plugin with WordPress? That lessens the "educational
> > use"
> > > argument even more, because it makes the use less individual and/or
> > > spontaneous.
> > >
> > > 2. *Nature of Copyrighted Work:* The nature of the copyrighted work -
> > > lyrics to a song - does not inherently lend the work to be used in th=
e
> > > manner for which it is incorporated by the Plugin.
> > >
> > > 3. *Substantiality/Extent of Use:* The Plugin incorporates the entire
> > > lyrics, not an excerpt or a snippet, but rather the entire work.
> > >
> > > 4. *Market Effect:* The Plugin has no effect on the market for the
> > > original work.
> > >
> > > #1 and #3 will kill any attempt at a fair-use infringement defense.
> > >
> > > My primary concern is that the matter be taken seriously by the
> > > powers-that-be. Given that wp-hackers isn't the appropriate venue for
> > > ensuring that concern is met, I'll do my best to bow out of the
> > discussion
> > > now.
> > >
> > > Chip
> > >
> > > On Wed, Dec 15, 2010 at 5:08 PM, Ryan Bilesky <rbilesky at gmail.com>
> > wrote:
> > >
> > >> I do think this would constitute fair use, in my non-professional
> > (legally
> > >> speaking) opinion.
> > >>
> > >> 17 U.S.C. =A7 107 Notwithstanding the provisions of sections 17 U.S.=
C. =A7
> > 106
> > >> and 17 U.S.C. =A7 106A, the fair use of a copyrighted work, includin=
g
> such
> > >> use
> > >> by reproduction in copies or phonorecords or by any other means
> > specified
> > >> by
> > >> that section, for purposes such as criticism, comment, news reportin=
g,
> > >> teaching (including multiple copies for classroom use), scholarship,
> or
> > >> research, is not an infringement of copyright. In determining whethe=
r
> > 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 t=
he
> > >> copyrighted work.
> > >>
> > >> On Dec 15, 2010 1:50 PM, "hakre" <hanskrentel at yahoo.de> wrote:
> > >> >
> > >> >
> > >> >> Von: Mark Jaquith <markjaquith at gmail.com>
> > >> >> An: wp-hackers at lists.automattic.com
> > >> >> Gesendet: Mittwoch, den 15. Dezember 2010, 21:06:29 Uhr
> > >> >> Betreff: Re: [wp-hackers] Licensing and Copyright Issues with the
> > Hello
> > >> Dolly
> > >> >>Plugin
> > >> >>
> > >> >> On Wed, Dec 15, 2010 at 12:31 PM, hakre <hanskrentel at yahoo.de>
> > wrote:
> > >> >> > In the related ticket #15769[2] lead developer markjaquith
> > wrote[3],
> > >> >> > the distribution of the code is intended for "non-commercial" a=
nd
> > >> >> > "educational" use.
> > >> >> >
> > >> >> > If the use of the plugin is really limited to non-commercial an=
d
> > edu-
> > >> >> > cational use, then this would be incompatible with the GPL as y=
ou
> > can
> > >> >> > not restrict commercial use of GPLed code.
> > >> >>
> > >> >> I said *no* such thing. I said "The purpose is non-commercial and=
,
> > >> >> yes, educational." In context, it should be clear that I am talki=
ng
> > >> >> about the purpose and rationale behind its *existence*, not
> > >> >> establishing restrictions on its *use*.
> > >> >
> > >> > Please don't feel offended. Read my words, we're not far away from
> > each
> > >> > other:
> > >> >
> > >> > I wrote "Intended" you wrote "Purpose".
> > >> >
> > >> > Then I wrote "IF the use of the plugin is REALLY limited". That's
> > hypo-
> > >> > thetical. If you would have written about a concrete limitation yo=
u
> > can
> > >> bet
> > >> > that I would have reacted as concrete to it - not hypothetical.
> > >> >
> > >> >> It's bewildering that you'd
> > >> >> jump to such a bad faith interpretation of my words.
> > >> >
> > >> > What I think is more important then to assume bad faith is
> > >> > to think about the implications this has if the lyrics cause
> > restrictions
> > >> > of any kind to the GPLed code.
> > >> >
> > >> > It has been distributed to millions of sites of which I assume mos=
t
> of
> > >> > it's users do not want to violate others license and instead want =
to
> > >> > be able to use wordpress under the GPL in a non-violating way.
> > >> >
> > >> > That's just very bad news for all users incl. the ones who are
> > >> developers.
> > >> >
> > >> >> Regarding copyright and fair use =97 I weighed in already. This i=
s
> not
> > >> >> an appropriate place to debate the matter.
> > >> >
> > >> > Sure, as the regulars all know that the selection of the Hello Dol=
ly
> > >> Lyrics was
> > >> > and is a personal preference by Matt Mullenweg and is not related =
to
> > >> > anything educational. It's just Matt's hobby. He loves jazz. It's =
a
> > >> specific
> > >> > text he wanted to have in there. I think that's the whole story
> behind
> > >> the
> > >>
> > >> > Hello Dolly lyrics. That's where the plugin has it's name from eve=
n.
> > >> >
> > >> > That's why I would have never argued for fair use.
> > >> >
> > >> > For the reality we share and in a publicly viewable space, I can
> only
> > >> suggest
> > >> > to take care and fix this. Seriously. And with the best intentions=
.
> > >> >
> > >> > -- hakre
> > >> >
> > >> > http://hakre.wordpress.com/
> > >> >
> > >> >
> > >> >
> > >> > _______________________________________________
> > >> > wp-hackers mailing list
> > >> > wp-hackers at lists.automattic.com
> > >> > http://lists.automattic.com/mailman/listinfo/wp-hackers
> > >> _______________________________________________
> > >> wp-hackers mailing list
> > >> wp-hackers at lists.automattic.com
> > >> http://lists.automattic.com/mailman/listinfo/wp-hackers
> > >>
> > > _______________________________________________
> > > wp-hackers mailing list
> > > wp-hackers at lists.automattic.com
> > > http://lists.automattic.com/mailman/listinfo/wp-hackers
> > _______________________________________________
> > wp-hackers mailing list
> > wp-hackers at lists.automattic.com
> > http://lists.automattic.com/mailman/listinfo/wp-hackers
> >
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