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This Blog Post Is Copyright Protected and Fair Use Is Not Applicable:

Who says so? I do! I can just make up the law as I going along, because ... because ... well I just can. OK, I can't, but the North Country Gazette thinks it can; all its articles say at the bottom, "This article is copyright protected and Fair Use is not applicable." Just making it up, as I said.

A contract, even a clickwrap contract (i.e., "To access this site, you must agree to waive your fair use rights") might serve to impose a contractual obligation on you not to copy material, just as a contract to keep facts confidential imposes a contractual obligation on you not to copy material. That copyright law doesn't prohibit fair use copying, or doesn't prohibit copying of facts, doesn't preclude the creation of contracts in which one party promises not to engage in such copying; there's some controversy about that, but I'm pretty confident that this is so. Nonetheless, that requires some manifestation of assent to the contract, and simply visiting a publicly accessible Web page that says "Fair Use is not applicable" surely doesn't qualify.

Thanks for the pointer to David Giacalone, who has more to say about the subject.

UPDATE: Commenter Tony points to yet another lovely item on the front page, "In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette." I take it that they're forbidding the reproduction of this very quote, even in the course of my criticism of their position — nice work if they can get it, but fortunately they can't. We are all quite free to reproduce that quote, and other quotes from their material, of course within the boundaries of fair use (and a quote of a sentence from a work in the course of criticizing the work qualifies).

FURTHER UPDATE: The "This article is copyright protected and Fair Use is not applicable" line seemingly no longer appears in new articles on the site, but the "In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette" remains on the front page. Why should people trust the accuracy of the articles on the site, if the site's claims about copyright law are inaccurate?

Related Posts (on one page):

  1. "In Accordance With Fair Use ... We Forbid Any Reproduction":
  2. This Blog Post Is Copyright Protected and Fair Use Is Not Applicable:
BruceM (mail) (www):
This is clearly against public policy and should be precluded and preempted by federal law, and absolutely unenforcable.
10.23.2006 5:32pm
wm13:
Well, that reminds me of the signs one often sees in parking garages and other similar locations, to the effect that "Owner will not be liable for [whatever]." I'm always bemused by the conclusory nature of these signs, since obviously the owner in fact will be liable for whatever a court finds him to be liable for.
10.23.2006 5:34pm
Deskmerc (mail) (www):
Naturally, IANAL, but say the Gazette decided to do a story on this post, and quoted it. Would they (hypothetically) argue fair use, or freedom of the press? Is there a difference?
10.23.2006 5:38pm
Le Messurier (mail):
wm13

Or, "We are not responsible for broken winshields".
10.23.2006 6:04pm
Mark Draughn (mail) (www):
My favorite example of this is still Glenn Reynolds' Terms of Use for InstaPundit. Whatever you do, don't sue him!
10.23.2006 6:20pm
jota:
Specht v. Netscape Communs. Corp., 306 F.3d 17 (2d Cir. 2002) is fairly illustrative on this topic. The problem of course, is that a web site operator simply has to make you actually "click" ok, acknowleding you've read the terms, before reaching the content. Courts pretty much across the board find mutual assent in that situation. The bigger question that courts tend to avoid is if a clause waiving fair use should be preempted either under stautory or conflicts preemption. But given the federal judiciary's adoption of the rationale of ProCD v. Zeidenberg in most cases, I'm not terribly confident a court will preempt terms requiring waiver of fair use rights without some legislative guidance that they should. Preemption, after all, means less certainty, and contractual certainty, for better or worse, is a liberty more important, or art least more understood, in the courts than the "delicate balance" of the copyright regime.
10.23.2006 6:20pm
John (mail):
The full message is: "All rights reserved. This material may not be published, broadcast, rewritten or redistributed by anyone without the express written permission of the publisher. This article is copyright protected and Fair Use is not applicable."

I went to the site, and wasn't asked to agree or disagree to anything, nor was I told that a condition to my reading the article was my agreement to these conditions. So it is not at all like those licensing arrangements where you "click here if you agree to the terms" or where if you open the CD sleeve, you are agreeing to the license.

On the other hand, a number of their articles are not accessible without a subscription, which I didn't sign up for. No doubt as part of the subscription process one will be asked to agree to the Fair Use restriction.

The result is that the freely available stuff is Fair Usable; the subscription-only stuff would not be.
10.23.2006 6:23pm
Bruce:
I suspect the North Country Gazette did not have the benefit of counsel in drawing up the language at the bottom of the page. It looks like a pretty tiny operation (as are most things in New York's North Country). Also, somewhat inconsistently given the footer, the news content appears to be taken from wire services (I'm pretty sure, e.g., the Gazette does not have a correspondent in Staten Island, which is several hours' drive away), but there's no attribution.

As for whether you can form a contract just by visiting a page, I don't think it's correct to say absolutely not, see, e.g., Register.com v. Verio, but a single visit likely wouldn't do it.
10.23.2006 6:32pm
Bruce:
Actually, scratch that, I should have checked before posting; it doesn't look like the stories on the Gazette come from any wire services.
10.23.2006 6:41pm
anonVCfan:
per John's comment, I'd suggest that the only legal effect that the notice has is to tell the reader who owns the copyright.
10.23.2006 6:45pm
Martin Grant (mail):
It may not be enforcible, but may serve its purpose if enough people believe it.
10.23.2006 7:06pm
Martin Grant (mail):
Same as those parking garage signs. If someone sees one and believes it, they may not bother to seek redress in the first place.
10.23.2006 7:08pm
david giacalone (www):
Here's some background on my original posting on this topic:

I decided to write to the Editor of the Gazette (June Maxam) saying her interpretation of Fair Use was incorrect, when I saw the same warning at the foot of an article there that was a complete, verbatim reproduction of a NYS Courts press release (which did not even get an attribution).

Her response to me suggested that she did have legal counsel, who would take action, because I was practicing law without a license. She later wrote to say that I had no permission to quote from her emails. Since that time, she wrote two more emails: "you're an ass and not worth bothering with" and "Watch NCG—you're going to have some publicity too."
10.23.2006 7:11pm
Ragerz (mail):
What? I thought that clipwrap contracts did away with the idea that consent was a significant element of contracts. I am all for the idea of contractual obligations arising from visiting public websites, using that same idea.
10.23.2006 7:17pm
William Spieler (mail) (www):
Although I agree that the NGC's language on fair use is incorrect, I actually disagree that this language doesn't have legal effect. See Field v. Google, 412 F. Supp. 2d 1106, 1115-16 (D. Nev. 2006).

Besides which, I notice that the disclaimer on the bottom says "NO UNAUTHORIZED REPRODUCTION," which should suffice to defeat a defense of implied license.
10.23.2006 7:22pm
Tony (www):
I love the sidebar on the main page: "In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette." In accordance?
10.23.2006 7:37pm
guest:
this reminds me of the "free speech zones" in airports. as if free speech doesn't apply to the rest of the airport, because the airport authority decided it was so.
10.23.2006 7:38pm
Bruce:
David: I still think the Gazette isn't being advised in these statements by counsel. But I'll modify my theory with the addendum that if it is, counsel's not that good.
10.23.2006 7:50pm
Justin Levine:
How can we expect federal law to preempt this when the feds tacitly SUPPORT it?? Have you seen the FBI warning labels on videos? The FBI and the MPAA are just as guilty of this nonsense. Every FBI warning on a home video INCORRECTLY states that ANY unauthorized reproduction of the work is illegal and subject to criminal penalties. In their view - if copying is unauthorized, then by definition it can’t be fair use.

Incredible and pathetic…
10.23.2006 7:55pm
user1234 (mail):
stealing people's entire work without attribution for your personal use is unlawful, no matter what you call it
10.23.2006 8:06pm
bornyesterday (mail) (www):
There is a typo in Instapundits TOS that has always bothered me, but never enough to send Glenn and email about.
10.23.2006 8:09pm
Peter Wimsey:
I think that those various posters who analogize this to various "We are not responsible for anything we do" signs are exactly right - the warnings are legally meaningless but are there to perhaps deter litigation.

Although, in the site's defense, there are certainly a lot of people on the web who don't understand "fair use" either, basically interpreting it to mean that they can copy entire articles and post them elsewhere as long as they are not charging for the article.

Re: FBI warnings - are those warnings really from the FBI? I just thought that they were official looking threats made by the copyright holders.

There should be a term for threats that are legally baseless but which sound like they are a legal warning.
10.23.2006 8:22pm
lucia (mail) (www):
David CG wrote:

Her response to me suggested that she did have legal counsel, who would take action, because I was practicing law without a license. She later wrote to say that I had no permission to quote from her emails. Since that time, she wrote two more emails: "you're an ass and not worth bothering with" and "Watch NCG—you're going to have some publicity too."


Has anyone sent her a link to this blog post? I wonder if she'll accuse EV practicing law without a license? Will she threaten him with publicity?
10.23.2006 9:07pm
John B.:
Fair use is a weird affirmative defense. Most affirmative defenses agree to the facts but deny a violation of the law because of some other facts. Fair use doesn't admit any new facts. It agrees that there is a violation of the law but asserts that it doesn't matter.
10.23.2006 9:21pm
Kevincure (mail) (www):
I may be mistaken, but I'd thought there was something in copyright law along the lines of "It is illegal to overstate the protections one gets from copyright." This seemed sensible to me - why let book title pages say "All unauthorized reproduction is prohibited by law" when, in fact, this is a baldfaced lie and serves only to mislead those of us who want to a) apply fair use and b) aren't lawyers.

I'm 99.9% sure this is in the Code, but I've forgotten where. In any case, I've *never* heard of this piece of law actually being prosecuted, despite the fact that one could easily strip the copyright from a huge number of works if it were.

As to whether you should be able to clickwrap away fair use: oughn't copyright be an and/or position? You can either use some crazy clickwrap and try to enforce it on third parties (i.e., some version of trade secrets for copyright) or you can use copyright law.
10.23.2006 9:24pm
david giacalone (www):
Lucia, I have sent Ms. Maxam a copy of Eugene's post and her response suggested that she is pleased to have the publicity.

Given the style of journalism and investigation (not to mention analysis) seen at NCG, in its fight against governmental abuse, it will be interesting to see what kind of bad publicity she is planning for me. I plead guilty to being a retired lawyer with an opinion on the plain language of Sections 106 and 107 of the Copyright Act.

Like Peter, I think those warnings on videos are put there by the copyright holders and made to look official.
10.23.2006 9:29pm
A.S.:
Martin Grant, above, is exactly correct. The statement is not intended to be enforceable. It is intended to be deterrent.

So analyzing its enforceability is rather beside the point.
10.23.2006 9:34pm
guest:

Fair use is a weird affirmative defense. Most affirmative defenses agree to the facts but deny a violation of the law because of some other facts. Fair use doesn't admit any new facts. It agrees that there is a violation of the law but asserts that it doesn't matter.


No, it states that on the facts alleged, there is no violation because the use was a "fair use" within the meaning of the law.
10.23.2006 10:29pm
Dave Griffith (mail):
Someday, in the EULA of a software product I ship, I really want to include the following:

Contents may have settled during shipping. Past results are no gaurantee of future performance. No animals were harmed during the production of this product. Void where prohibitted by law. All rights reserved. Not valid with other offers or specials. Professional driver on closed track. Your financial institution may impose other fees. This is not an offer to sell securties. All models are over 18 years of age.
10.23.2006 10:34pm
Henry Schaffer (mail):
Dave writes about a disclaimer he'd like to use - several times I've come across more complete disclaimers, here's an example.
10.23.2006 10:59pm
Kovarsky (mail):
Fair use is an affirmative defense, and it admits copying, but it's not "weird" because it does so. In criminal cases, self defense and justification and duress all admit the facts of the contested act happened.

This type of contract of adhesion isn't binding. You can't waive the right to an affirmative defense by looking at a webpage. The real question is whether the site could sue you in contract, and they'd never really do that. I think as AS pointed out, this is about deterrence, not law.

It is obnoxious though.
10.23.2006 10:59pm
Kovarsky (mail):
the court in eldred made the bizarre maneuver of saying they don't really have to worry about the first amendment and copyright duration because, they seem to think, fair use does the "first amendment work." in light of this (i don't know if you can call it prevailing) view of fair use, i find it improbable that any contract challenge would succeed. you can obviously waive certain speech rights (eg, nondisclosure agreements), but not in a contract of adhesion. no way.
10.23.2006 11:05pm
NickM (mail) (www):
The funny part is that based on the research presented at Digg.com, the North End of a Southbound Horse Country Gazette article is basically fiction, and thus fair use applies to a much more limited extent than if it were a real news article.

Best - I've had the distinct displeasure to have to deal with Ron Branson in person on a number of occasions (he served 3 terms on the L.A. County Republican Central Committee, because they never had more people run from his district than there were seats available). He and his wife are worse in person than they are online. Paranoid megalomaniac with a Messianic complex only begins to describe him.

Nick
10.23.2006 11:11pm
Harry Eagar (mail):
Tim Blair copies this statement Reuters is putting on (at least) its Australian site:

'Reuters content is the intellectual property of Reuters or its third party content providers. Any copying, republication or redistribution of Reuters content, including by caching, framing or similar means, is expressly prohibited without the prior written consent of Reuters. Reuters shall not be liable for any errors or delays in content, or for any actions taken in reliance thereon.'

I've no idea what Australian copyright law says.
10.24.2006 12:23am
Bruce Hayden (mail) (www):
Harry,

I too don't know Aussi law, but here in the U.S., that would be absurd. You can't look at a web page without reproduction. You can't transmit it across the Internet without reproduction, etc. Normally, making content available on the Web is an implied license granting those rights to reproduction, etc. necessary to view the content. But that verbage by al Reuters would seem to negate such an implied license. Thus, it doesn't appear that, absent Fair Use, you should be able to view such Reuters articles online (or offline printed from an online article).
10.24.2006 12:42am
JT Wenting (mail):
Reminds me of sentences like "by opening this package you agree to the license terms of the enclosed contract" (which of course you can't read without first opening the package) or "by visiting this site you agree to the terms set out in our conditions of use" (which you can't read without visiting the site, or sometimes can't read without visiting the site to get the contact information where you can request them).

Such things are rather commonplace, whether through ignorance or malice on the part of the people thinking up such sentences.
10.24.2006 1:20am
user1234 (mail):
Just what is your problem with The North Country Gazette? You're all upset because she printed a news release from the UCS telling people about free legal advice? Unreal.
10.24.2006 1:25am
Can't find a good name:
user1234: No, it's all right to reprint news releases, but it's not all right for the Gazette to claim that they are the Gazette's copyrighted property (when the Gazette didn't create them), and it's even worse to claim that no one else is allowed to even make "fair use" of them.
10.24.2006 1:40am
user1234 (mail):
Don't you have better things to do than worry about such minor issues? If you want to print the news release, go for it. However, you might want to think twice about taking any of the original articles from that site. They are indeed the property of that website. Move on and find something else to bitch about.
10.24.2006 1:49am
Kovarsky (mail):
user1234

if you are mourning your inefficient time allocation to this issue, why are you posting.

and why, when you are hypocritically lengthening the thread-that-you-hate-because-its-too-long, are you also saying things that are incorrect. "they are indeed the property of that website" is not true. material may be legally copied for the purposes of reporting, parody, teaching etc.



but we really appreciate your constructive, thoughtful comments.
10.24.2006 2:03am
user1234 (mail):
so now you're advocating plagarism. You're too rich/ Where did you say you practiced or have you been disbarred
10.24.2006 2:19am
Bruce:
I wonder who user1234 is?
10.24.2006 2:31am
Urijah (mail):
There is a similarly obnoxious warning on the copyright page of books by the Orthodox Jewish publisher Artscroll/Mesorah.

"No part of this book may be reproduced
IN ANY FORM--PHOTOCOPY, OR OTHERWISE--even for personal use
without WRITTEN permission from the copyright holder.

except by a reviewer who wishes to quote brief passages
in connection with a review
written for inclusion in magazines or newspapers.


THE PUBLICATION OF THIS WORK INVOLVED EXTENSIVE RESEARCH AND COSTS, AND THE RIGHTS OF THE COPYRIGHT HOLDER WILL BE STRICTLY ENFORCED."
(All formatting in the original.)

To add insult to injury, in the particular book I'm looking at (The Complete Artscroll Siddur) only half of the content (the translation) is original at all!
10.24.2006 2:44am
Fearmonger (mail):
"Apparently Carl, when you bought that medium drink, you entered into a binding contract that enables them to rip off your dick."

- Frylock to Carl

I don't suppose many conspirators are down with the Hunger Force.
10.24.2006 4:36am
strcpy (mail):
"Reuters content is the intellectual property of Reuters or its third party content providers. Any copying, republication or redistribution of Reuters content, including by caching, framing or similar means, is expressly prohibited without the prior written consent of Reuters."

Ok, if no one is allowed to even cache or redistribute Reuters comment I suggest it be enforced.

To note, for *anyone* to read their online comment requires caching and redistributing. Lets ban it from ever leaving their servers. Even if CNN obtains their permission I doubt the backbones of the internet would bother (and they have to both cache and redistribute their content). I agree, let us not allow anyone anywhere to cache, redistribute, or do anything with their stuff without express written permission.

I figure that will not last very long at all. A content provider that can not provide content will not last very long. I rather suspect this is either a scare tactic or one of the things they plan on everyone violating and only enforcing if they get angry at a specific entity.

How would Reuters feel if an entire continent couldn't access their info. I suppose it wouldn't do for me to be in charge, I would give too many people exactly what they say they want.
10.24.2006 4:47am
Anym Ouse (mail):
Contents may have scuttled during shipping. Past results are no guarantee of futuristic performance. No animals were hammed during the production of this product. Void where prohibitted by in-law. All rites reserved. Not valid with other altars or species. Professional driver with prose hack. Your financial institution may impose mother fleas. This is not an offer to fell securities. All models are over 78 years of age.
10.24.2006 4:50am
David M. Nieporent (www):
Although I agree that the NGC's language on fair use is incorrect, I actually disagree that this language doesn't have legal effect. See Field v. Google, 412 F. Supp. 2d 1106, 1115-16 (D. Nev. 2006).
William, I don't understand how that cite supports your proposition. Your pinpoint citation is to the section on implied license, not fair use. Obviously language explicitly forbidding something can have legal effect as pertaining to an implied license, but it's irrelevant to a fair use claim. Fair use, by definition, involves unauthorized copying.
10.24.2006 5:46am
Bruce Hayden (mail) (www):
Coming full circle, David points out in reference to Field v. Google that language can be used to negate implied license (see Reuters comments above), but that Fair Use, by definition, involves unauthorized copying.

So, what that means here I think is that someone potentially may be able to contract away their right to Fair Use copying, but if they do, and then infringe the copyright, the web site's remedy is in contract, and not in tort/copyright.

The problem with the North Country Gazette disclaimer or whatever you want to call it, is that it is IMHO grossly inadequate to form a contract. Legal counsel, or whoever is doing this, seems to be confusing negating an implied license (and, thus, an implied contract), and forming an express contract. They need the later to make their scheme work, but are using the mechanism for the former.
10.24.2006 6:18am
Benjamin Kimball (mail):
"In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette.
ANY reproduction? Looks like I can't finish that Motion for Summary Judgment due tomorrow. I'll just send a quick e-mail to the lead attorney and go to bed now.
10.24.2006 7:42am
Adrianne Truett (www):
Australian copyright law is terrifying, and I'd recommend you all look it up. If I own a cookbook (that someone else wrote and I purchased), and I copy out a recipe so that I can laminate it and put it in my recipe box (that will never leave my kitchen), that could be a copyright violation (although I don't believe it's been acted upon). Forwarding emails would be copyright violation; they only recently amended the law to allow for the existence of timeshifting devices (as long as you watch the TV show later by yourself and then delete it), which were originally also copyright violators. There ain't really no such thang as fair use down there....
10.24.2006 8:34am
Gary McGath (www):
Better yet, they say:

YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF The North Country Gazette IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

And further on:

The North Country Gazette SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, ... RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA ...
10.24.2006 10:53am
JAL (mail):
User1234 could be just really dense, just doesn't understand Fair Use, or just doesn't want to understand Fair Use.

It's called "Fair" Use for a reason.

For example, anyone writing educational articles and / describing someone's work or words needs to be able to illustrate / document what they are writing about. Having written some for educational purposes, I had to look the law up at one time. IIRC there are some specific parameters which define Fair Use.

Plagiarism and Fair Use are different issues, User1234. Someone might think they were fair using and use too much, but if they take credit (or imply credit) for authoring the piece, I believe that might be what constitutes plagiarism. I usually learn something when I visit this site. Some of these folks really do know more than you or I do.
10.24.2006 10:54am
Bryan DB:
Does "WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette" also forbid rendering the page on your display when you visit the website? Because that could really hurt business.
10.24.2006 11:18am
Shubha Ghosh (mail) (www):
This reminds me of a term in Hotmail's TOS which, legend has it, stated that Microsoft owns the copyright in all the email content sent through the service. That term no longer survives, as I understand it. Just make sure you don't send that great american novel to your publisher via hotmail!

There are two issues here: assent and preemption (both statutorily and constitutional). As for the latter, see the Federal Circuit's decision in Baystate Technologies and the First Circuit's in Data General. Both upheld contractual restrictions on all reverse engineering, some of which would arguably be fair use under Accolade and Connectix. Both cases however dealt with situations where assent was clear, unlike the facts here.
10.24.2006 11:22am
Kent G. Budge (mail):
I understand and support Fair Use. But I think I also understand the frustration of copyright holders with the public's misunderstanding of Fair Use.

A statement like ...

"No part of this book may be reproduced
IN ANY FORM—PHOTOCOPY, OR OTHERWISE—even for personal use
without WRITTEN permission from the copyright holder.


... ignores Fair Use and is therefore misleading. But it is astonishing how many people I know — they probably constitute a clear majority of my acquaintances — who have somehow gotten the impression that any personal use falls under Fair Use.

It isn't just naive citizens. Google has, in my IANAL opinion, really pushed the boundaries of copyright law with some of its activities.

So, sure, the Artscroll/Mesorah and Northbound-Horse-Gazette copyright assertions are dumb. But they're more understandable than a lot of dumb things.
10.24.2006 11:37am
Opus:
Apparently, Ms. Maxam does not object to all judges, as she has filed three complaints in N.D.N.Y., two with the aid of counsel:

Maxam v. Warren County et al, No.06-1012 (N.D.N.Y. filed Aug. 22, 2006) (Pro se complaint brought pursuant to §§1983, 1985, alleging pretty much everyone in the County has deprived the plaintiff of various Constitutional rights)

Maxam v. Sheriff of Warren County Jail and New York State Attorney General, No. 04-491 (N.D.N.Y. Filed June 5, 2004) (Seemingly frivolous habeas petition alleging False Instrument conviction was obtained unlawfully) (Represented by lawyer, P.D. Theresa M. Suozzi).

Maxam v. Warren County et al, No. 94-80 (N.D.N.Y. dismissed Apr. 4, 2004) (Civil action complaint, brought with the assistance of attorney Kirk M. Lewis).
10.24.2006 12:39pm
QQ (mail) (www):
Are there any statistics on false marking lawsuits? Although it doesn't really solve the problem of overreaching, a good false marking lawsuit might be useful against those that claim copyright where they are not entitled.
10.24.2006 12:59pm
QQ (mail) (www):
And I spoke too soon. Rather I should have asked: Why doesn't copyright law have a false marking statute similar to 35 USC 292 (for patents)?
10.24.2006 1:17pm
KevinM:
Why not just include a confession of judgment and be done with it?
Relatedly, in both my government and private sector jobs, I've had to fight to alter the ludicrous email footer that essentially blames the recipient for receiving the email you misdirected to him/her, and warns of dire legal consequences, probably none of them true.
10.24.2006 1:22pm
Kovarsky (mail):
I think it's safe to ignore User1234.

As for the 292 question; in order for something to be patented, you need to prosecute a patent and the PTO needs to grant one. 292 says you can't claim patent protection that the PTO hasn't given you. There's a law in place because it's pretty easy to adjudicate:

(1) did item indicate it was patented
(2) does purveyor of item actually have patent (check list)

It's not as easy for copyright, which is a set of use-entitlements that attach as soon as an expressive asset is fixed in a tangible medium - in otherwords, you don't need to go to the government to get a copyright (you need to register your copyright before you sue, but that's a different story). so, in order to enforce a 292 like copyright protection, you would end up having to adjudicate whether something was in fact copyrightable EVERY SINGLE TIME. in the patent context, all you have to do is check the PTO records to see if the seller/distributer in fact has a patent.
10.24.2006 1:40pm
Truth Seeker:
I wish I could figure out a way to go after Corbis and Getty for claiming copyrights in all the 100+ year old pictures they license to new organizations.
10.24.2006 1:53pm
anon-y-mouse (mail):
(1) fair use is a defense, but it only requires admitting use of the work, it does not require admission of infringement. In fact, the fair use statute expressly says fair use, when found, is NOT an infringement of copyright.

(2) Eldred noted, in one important sentence, that there would not be a 1st amendment problem with copyright statutes so long as they correspond to the traditional metes and bounds of copyright law. A law that is interpreted to restrict far more speech than traditional copyright law (say, for example, an overbroad interpretation of the DMCA, section 1201) might still have first amendment problems after Eldred, since it definitely alters the traditional bounds of copyright law.

(3) The false marking statute for patent law is not frequently enforced, because there is a fixed $500 penalty for each act of false marking (an entire run of products, not each product). There is a statute barring false claims of copyright, but it is only enforceable by the DOJ, not by individuals, and in this day and age when - roughly speaking - anything fixed in a tangible form of expression that has a modicum of creativity is subject to copyright protection, that statute has little effect.

(4) Clickwraps run the gammut, and enforceability depends on the active/passive nature of the assent, as well as the active/passive nature of how the EULA attempts to bind the user.
10.24.2006 1:53pm
Kovarsky (mail):
people get caught up in trying to use fair use's status as an affirmative defense to argue that an activity is infringing but "it's fair." as anon-y-mouse points out, it's really just about pleading burdens. the endgame is that if you prove the elements of infringement but lose on fair use, you can't prevail on an infringement theory.
10.24.2006 1:58pm
Christopher Cooke (mail):
My nephew (a 16 year-old at the time) once asked my about the legality of downloading music via LimeWire or some other Napster-equivalent, asking why it wasn't "fair use?" He apparently thought the difference in how the music was distributed made a difference. I told him it didn't and that if the owner of work didn't consent to downloading (some bands do, by the way), it was an infringement for him to download it via Limewire or whatever he had heard about. I think he had heard this "fair use" variation at his high school buddies. Fortunately, he asked me first before trying it out, and now has an iTunes account for his download needs.

It is amazing how many people hear snippets of this aspect of copyright law, in a distorted fashion. Maybe it is just wishful thinking, on their part, that what they are doing is okay.
10.24.2006 2:18pm
Master Shake:

"Apparently Carl, when you bought that medium drink, you entered into a binding contract that enables them to rip off your dick."

- Frylock to Carl


I don't suppose many conspirators are down with the Hunger Force.
Ah, but I disagree.
10.24.2006 2:33pm
Kovarsky (mail):
Christopher Cooke,

Actually, some filesharing can be fair use although I'm sure that in whatever sense your teenager was invoking it, it was not.
10.24.2006 3:08pm
ss:
They very obviously have some young, overly-zealous, fourth-tier law school grad working for them as legal counsel. The Terms of Service are hysterical.
10.24.2006 4:02pm
Kovarsky (mail):
why do people feel compelled to make obnoxious "fourth tier" remarks.
10.24.2006 4:48pm
Opus:
...especially since "fourth tier" schools drill their students on black letter law.
10.24.2006 5:10pm
Kovarsky (mail):
just to be clear, i think insulting things as products of "fourth tier" institutions is obnoxious. i'm not using the phrase "fourth tier" as an expression to convey the crappiness of remarks.
10.24.2006 5:11pm
Harry Eagar (mail):
I surmise that Reuters was trying to warn off the bloggers who minutely examined its photos from Lebanon and Gaza in order to demonstrate fakery.

If so, I further surmise that the bloggers are thrilled with this response and unlikely to treat it seriously.

(As a newspaper reporter, I don't own the content I produce, but it still irritates me to have it ripped off. Unless, of course, I'm happy to see it get a wider audience.)
10.24.2006 5:36pm
eddy:
Master Shake --

With all due respect, Aqua Teen Hunger Force offers suspect legal advice. I suggest instead you tune in to "Harvey Birdman, Attorney-at-law" for quality legal advice.
10.24.2006 5:57pm
abb3w:
David M. Nieporent:
Fair use, by definition, involves unauthorized copying.
Quibble: Fair use involves copying authorized by common and case law, even if unauthorized or explicitly denied permission by the author. Copying without any authorization whatsoever is called "theft", among other things.

As an aside, I see nothing persuading me that user1234 is not in fact June Maxam. The sense of "sound and fury" I perceive from the posts is consistent with that I got from the one editorial I read over at the publication.

As far as her editorial goes, it sounds like there usage was in excess of fair use, but the remarks about copyright sound to me like they come as a solemn proclamation from the First Estate, rather than a sound legal opinion. (Yes, I meant First, NOT Fourth.)

IAmNotALawyer; I just listen to them, and try wretchedly to understand within the limits of my poor abilities. =)
10.24.2006 6:47pm
AW (mail) (www):
What is interesting, in light of their copyright claims, are articles such as
this one when compared to one like this. I think that shows very well the "editor"'s knowledge of copyright and any council she does have needs to get her some help before someone decides to do something about it.

(note: nofollow attributes used above when linking to NCG)
10.24.2006 7:04pm
Master Shake:

Master Shake --

With all due respect, Aqua Teen Hunger Force offers suspect legal advice. I suggest instead you tune in to "Harvey Birdman, Attorney-at-law" for quality legal advice.
I've recently switched to Frisky Dingo LLP.
10.24.2006 7:37pm
Pablo M (mail):
Just to rewind the conversation slightly; surely those "Owner will not be liable for [whatever]" signs do have some legal value in the sense that they make it explicit that there is no implied obligation (beyond any statatory minimum)? Would having your car stolen from somewhere with those signs not leave you in a slightly different legal position than from somewhere advertised as “100% Secure Parking - Guaranteed!”?
10.24.2006 7:59pm
ss:
Hmm. Apparently, I hit a nerve with some graduates of fourth tier schools of lesser repute. Not that there's anything wrong with that. I'm sure every conceivable tier arbitrarily delineated level of subjective quality is bursting at the seams with cream-of-the-crop lawyers. All law schools are equally great and their graduates are all similarly brilliant. Implying dim-wittedness based on low LSATs is obnoxious and elitist. Now, tell me I'm pretty.
10.24.2006 9:22pm
Mike BUSL07 (mail) (www):
ss. To concede a broad point, it is hard to dispute that top 20 law schools produce on average better lawyers than 4th tier law schools. But, umm, manners? What are you trying to prove? You must assume that this blog has readers from all walks of legal life, so why trot out the old "4th tier" insult? That stuff, you should keep between you and your friends who won't be offended; like jokes about midgets.
10.24.2006 10:07pm
Kovarsky (mail):
ss,

i'm not usually inclined to respond to people like you, but its only the most intellectually insecure that insist on identifying law school rankings as proxies for intelligence. but every post has to have that "guy." meanwhile, while you've contributed absolutely nothing to the conversation, and while you've insinuated that you've "struck a nerve" with your piercing commentary, you are free to read two of my articles on the subject of fair and adhesive use of expressive (copyrightable) assets here or here. let me know what you think, and how you did in your torts class.
10.24.2006 10:23pm
Mike BUSL07 (mail) (www):
I should have added that I was not suggesting in my previous post that those who were offended by ss on this particular thread are "4th tier" graduates. But now, at any rate, Kovarsky has made that quite patently clear..
10.25.2006 12:06am
Steveo987 (mail):
UVA is a fourth tier law school? I've met some worthless grads, but I'm not sure I'd call it fourth tier.
10.25.2006 11:20am
david giacalone (www):
Thought you would like to know the good news that I just posted at shlep:

It looks like our "pro bono" efforts (shlep's and those of webloggers around the world) to correct the erroneous copyright notice at North Country Gazette, has been successful. As our Commentor Sansavarous noticed this morning, items dated October 24, 2006 at NCG no longer have the erroneous statement “Fair use is not applicable.” Unfortunately, the SideBar continues to have the obnoxious warning “In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette.”

More at shlep - NCG has improved its copyright warning
10.25.2006 1:32pm
david giacalone (www):
Although NCG may have improved its copyright warning, its Editor has not improved her attitude toward David Giacalone. Here's the text of my follow-up posting, at shlep: the Self-Help Law Express, which quotes an email from Maxam that claims defamation and harassment by myself and (apparently) a lot of co-conspirators, plus my mild email to her this morning:

woops: More Threats from NCG’s June Maxam

Looks like my relief might have been premature. Below is an email from June Maxam, the Editor of North Country Gazette, along with mine to her this morning.

—— Original Message ——

From: June Maxam
To: shlep AT localnet.com
Sent: Wednesday, October 25, 2006 1:09 PM

Due to the threats, intimidation and profanity which you caused, directed and encouraged, you were reported to law enforcement. My attorney is currently monitoring the defamation which has resulted by your acts and we will be proceeding. The harassment caused us to disable the email accounts for the news site. Do not send any further mail as your IP and email address has been blocked.


—— Original Message ——

From: David Giacalone at SHLEP
To: jmaxam1@nycap.rr.com
Sent: Wednesday, October 25, 2006 12:48 PM
Subject: thanks

Dear Ms. Maxam,

Thank you for making that small but important change concerning
Fair Use. I’m sorry this all got so aggravating.

best wishes,
David Giacalone
10.25.2006 8:40pm
david giacalone (www):
10.26.2006 12:15pm
Lawrence Salberg (mail) (www):
I await your summons and suit. I must confess. I reproduced at least two sentences from the original post on a paper towel with a Sharpie and gave them to my nine-year old son who found your text so fascinating that he decided to become a lawyer, of which, you are properly entitled to all his future income due to my egregious theft of your article. My contact information can be found on my blog. Thank you for allowing me to get this sin off my chest. Please follow through with your threats so that I don't ever get the impression that you are just a fly-by-night loon with a website trying to build traffic and relishing all these comments in your bathrobe sitting in your eastside apartment, eating popcorn for breakfast and laughing deliciously about all the attention you have created for yourself (a.k.a. the Lee Harvey Oswald personality quirk). I'd like to remember you as a true expert.
10.27.2006 2:15pm