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):
- "In Accordance With Fair Use ... We Forbid Any Reproduction":
- This Blog Post Is Copyright Protected and Fair Use Is Not Applicable:
Or, "We are not responsible for broken winshields".
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.
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.
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."
Besides which, I notice that the disclaimer on the bottom says "NO UNAUTHORIZED REPRODUCTION," which should suffice to defeat a defense of implied license.
Incredible and pathetic…
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.
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?
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.
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.
So analyzing its enforceability is rather beside the point.
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.
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.
On July 7, 2000, she was convicted of two counts of offering a false instrument for filing in the first degree and did time for it.
She was also the self entitled "Associate JAILer-in-Chief, NY JAIL4Judges".
JAIL4Judges is that quaint little organization that wants to put judges in prison because according to founder Ron Branson judges are part of the New World Order.
Best of luck fellas.
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.
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
'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.
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).
Such things are rather commonplace, whether through ignorance or malice on the part of the people thinking up such sentences.
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.
"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!
- Frylock to Carl
I don't suppose many conspirators are down with the Hunger Force.
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.
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.
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.
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 ...
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.
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.
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.
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).
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.
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.
(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.
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.
Actually, some filesharing can be fair use although I'm sure that in whatever sense your teenager was invoking it, it was not.
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.)
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.
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. =)
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)
fourth tierschools of lesser repute. Not that there's anything wrong with that. I'm sure every conceivabletierarbitrarily 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.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.
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
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