Date: Fri, 4 Feb 2005 22:38:52 -0800 From: "Ted Mittelstaedt" <tedm@toybox.placo.com> To: <freebsd-questions@freebsd.org> Subject: RE: favor Message-ID: <LOBBIFDAGNMAMLGJJCKNGEEBFAAA.tedm@toybox.placo.com> In-Reply-To: <205350680.20050205043947@wanadoo.fr>
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> -----Original Message----- > From: owner-freebsd-questions@freebsd.org > [mailto:owner-freebsd-questions@freebsd.org]On Behalf Of Anthony > Atkielski > Sent: Friday, February 04, 2005 7:40 PM > To: freebsd-questions@freebsd.org > Subject: Re: favor > > > Ted Mittelstaedt writes: > > TM> If you post on a public forum, by implication you are giving that > TM> forum permission to publish your copyrighted material. > > No, you're not. Yes you are. What do you think publishing is? And quit shooting from the hip before you read the entire post as I already explained that that "any other type of publication external to the forum ... and that includes mirroring on a Web site archive" is not covered under the first publishing rights you granted to the public forum but rather under Fair Use. > > No, you didn't, unless joining the forum required you to _explicitly_ > agree to these terms. > Yes you did. Laws on publishing are pretty clear. If you go carrying a sign in a public place in order to get it captured on film - such as at a political rally that Channel One news is filming - then later on switch parties then you cannot go back to Channel One and demand they airbrush your sign out of their archives. Why do you think that Channel One doesen't go getting consent signatures from every one of the 1000 people at the rally? > > Nobody gives out these rights by posting to a forum. > Sorry but yes they do. > If what you say were true, you could walk into a photography museum, > take pictures of the photos, and publish those pictures. In fact, this > is normally an infringement of copyright. > Only if photographs are prohibited. And in just about every museum out there photographs ARE prohibited, as a matter of fact, simply for this reason. Even if a guard doesen't come running up to you, the facts are that you have no permission to take the photograph, thus no right to publish it. Many museums do take a reserved approach to where they will not come running up to you and take away your camera, but you still don't have rights. But I have been in a number of museums - the Guggenheim in NY, the British Museum in London - where the guards there will indeed come running up to you. The British Museum in fact has "Photography prohibited" placards next to EVERY one of their master paintings just so as to make sure that THEY get the revenue from sale of images of their paintings, not you. HOWEVER there are PLENTY of places - such as the inside of many churches for example - where photographs ARE permitted. In those cases you are perfectly permitted to take a picture of artwork in the church and then go publish it all you want. Of course everyone else is too so the facts are that no magazine or periodical is going to buy your pictures because if they want a picture too they can take them themselves. > TM> The only thing that Valerie Andrewlevich, as a copyright holder > TM> of her posts, can do is block 3rd parties such as Google or other > TM> search engines from re-publishing her copyrighted material - ie: > TM> her post - becase in her initial post back in 2003 she never gave > TM> permission for Google to republish her material, and > Google and other > TM> search engines all republish under Fair Use doctrine. > > The applicability of fair use to Google's republication has not been > established by jurisprudence, AFAIK. > Yes, I am aware of that - IN THE UNITED STATES - laws differ in other countries though. As an author of course you ought to know that I am on the side of electronic publishing being considered the same as print publishing. I think that every sane person in the country that really understands these issues is also. Naturally the electronic content creators are continually trying to get laws into place that consider e-publishing as some sort of "special" publishing exempt from the First Amendment. Is that what YOU want? Until case law has defined e-publishing as under First Amendment rights it is in that grey area of could be interpreted one way and could be interpreted the other. I am SQUARELY in favor of interpreting it under First Amendment rights which include Fair Use, which is why I came down on poor Valerie like a ton of bricks, because what she is doing sets a dangerous precedent that has implications far, far beyond her piddly little website, or for that matter beyond our piddly mailing list. Sooner or later there will of course be a court case on this. If you want to count yourself on the Dark Side then go ahead and keep yapping that posts aren't publishing. I hope one day that you end up in North Korea or China where there are no First Amendment rights for any kind of publishing, book or paper or e-publishing. Then maybe you might understand how important it is to keep fighting for them. Therefore until a court says otherwise, Google has Fair Use rights. Period. You disagree - go find a court to back you up and come back here when you do. You might also consider that how the e-publishing community treats this issue - as we are doing right now - is going to be considered by that court case one day in the future. > In any case, authors of individual posts can require that they be > removed from the archive. > Yes, and this is because it's Fair Use. > TM> And of course, all of this goes out the window if the use of the > TM> copyright is for satire - as the courts have held that satire is > TM> constitutionally protected, and that it's reasonable to assume that > TM> a satirist would never be able to get permission from a copyright > TM> holder to publish their work. > > It's difficult to imagine a legitimate satirical use of posts in most > public forums. > You have a stunted imagination. I do feel sorry for you, really. One day you really ought to watch the Tonight Show and listen to Jay Leno. He has satired e-posts before on occassion. > TM> Which means I can say Valerie sounds like her kids aren't keeping > TM> her busy enough as she has so much time for looking at search > TM> engines, followed by an excerpt of her original post, and I > TM> have legal right to do it and she has no right to stop me, because > TM> such a statement is satire and thus protected. > > That depends on the context in which it appears. It may be defamatory. > Every person ever satired claims defamation or uses the FUD of defamation to try to prevent further satirizing. The courts understand this issue well and very rarely rule on the side of the victim of the satire. And in this case all we have is a source IP address, Valerie has made no actual statements here identifying who she is with any degree of verifyability. A defendant such as myself in such a case would have a solid legal footing to argue that because forgeries of a person's e-mail address and username are so simple, I have an excellent expectation that Valerie in fact doesen't exist, or the actual poster of the post isn't the real Valerie, a court would then throw the entire thing out. > TM> He is a She, unless Valerie has suddenly become a boy's name, and > TM> she quite obviously shows a shocking lack of knowledge about how > TM> much effort that she is asking the archive manager to go to, just > TM> to satisfy her ego. > > The amount of effort required to cease or reverse an > infringing activity > is not a defense against copyright infringement. > I wasn't talking about the archive manager of Google. I was talking about the archive manager of the FreeBSD mailing list archives. She granted the right to publish to them, not to Google. She has a legitimate legal basis to demand Google remove it. She has extremely thin to no basis to demand that the FreeBSD mailing list remove it. You seem to think that it's a Good Thing to have people who run a mailing list and run archives of that mailing list to spend all their time digging though old files just because some idiot got ants in their pants, when there's no solid legal basis for it. Yet, you have the nerve to come here and use this forum - and it's archive. It boggles the mind. Ted
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