

The Strange World Of Copyright Misconception - tshadwell
http://www.bennjordan.com/blog/?p=519

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chris_wot
Oh dear. Clearly he doesn't understand Fair Use. He categorically states you
cannot sample something under any circumstances without permission.

As it turns out, Fair Use provisions fall under 17 U.S.C. § 107, which reads:

 _Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. §
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 _The fact that a work is unpublished shall not itself bar a finding of fair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._

It really, _really_ helps to read up on this sort of stuff before you spout
off on it. Even typing "fair use" into Google takes you to Wikipedia, which
explains the concept clearly and in detail.

Bottom line: don't trust what this guy says. He can't even do basic research.

~~~
brazzy
It is you who does not understand what he (the author of TFA) is talking about
(admittedly he's not being very clear). He's using "sampling" as it's used in
the DJ and electronic music scene, to mean "include part of one commercial
piece of music in another commercial piece of music".

And he's absolutely right: that's not "for purposes such as criticism,
comment, news reporting, teaching [..], scholarship, or research", so it does
not fall under fair use, and the length and nature of the sample is completely
irrelevant.

~~~
chris_wot
I think he's being clear. He wrote:

"So let’s set the record straight. You cannot legally sample music without
clearance. It begins and ends there. If someone were to take a tiny clip of
one of my songs, pitch it down to 10% speed, reverse it, and slam 8 minutes of
echo on it, I could sue their pants off (not that I would, or even be able to
detect such a thing)."

He's saying this under all circumstances. Note that you can create works for
commercial purposes for teaching. If course, the statute states that this will
be taken into consideration.

Now don't get me wrong, fair use is a nebulous thing. You'll most likely not
fall under fair use provisions in most circumstances. It's not always clear
what a court will decide, so I agree - if you sample, best to get permission!
But making sweeping statements that something is not and will never be covered
under fair use is wrong.

~~~
mmcnickle
As much as I dislike arguing semantics, the resolution of this comes down to
the definition of "sample". For what it's worth, I read it to mean for the use
in commercial works.

~~~
chris_wot
And yet it can still be valid to have a sample in a commercial work under fair
use.

------
RobAley
When considering his arguments, please bear in mind:

    
    
      a) he is only detailing US law, the nuances of copyright law vary around the world
      b) as he states, he is not a lawyer
      c) not every violation of copyright law ends up in court
      d) not every copyright law case in court is ends up being a violation
      e) the world is moving on
      f) the law often doesn't keep up with the real world
      g) it all sucks. mostly.

~~~
Karunamon
s/not every/almost no

:)

------
icebraining
There's also the common misconception on YouTube and similar sites: _"No
copyright intended!"_

<http://waxy.org/2011/12/no_copyright_intended/>

------
brudgers
IANAL:

What is interesting is that he misses the biggest myth in which belief hurts
creators of original works.

Unless the author of a work is an employee or explicitly assigns copyright to
someone else, the author retains the copyright. In other words, the freelance
copywriter owns the copyright not the piano company unless the copywriter
explicitly assigned copyright to the piano company.

The relevance for software development (or in my case architectural practice)
is that the work product of contract programmer (or drafter) does not belong
to developer (or architect) absent explicit assignment of copyright.

Absent a properly structured contract, a contract programmer may share code
they wrote as they wish. Furthermore, a less scrupulous person might make
claims of code authorship which are difficult to disprove despite going beyond
what they actually authored.

~~~
mistercow
How interesting; I was under the impression that work done by a freelancer was
automatically considered to be a work for hire. But you appear to be right.

~~~
brudgers
Unless the contract explicitly states that it is work for hire, it isn't.

I will add that as layers get added to the contract relations - subcontractors
used by the contractor, sub-subcontractors by the subcontractor, etc. - the
exposure grows.

This sort of issue is largely addressed within my industry via standard
contracts developed over the course of 100 years. However, they only go a few
layers deep because this is sufficient given the economics.

On the other hand, the economics of software development are such that even a
tiny piece of code might be deemed to contribute several million dollars of
value.

------
chalst
_It is, however, legal to copy a CD to your computer or download something
from iTunes and re-encode it to an MP3. However, you legally cannot make a
tangible duplication (burn another CD)._

Is this right? I understood the 1992 _Audio Home Recording Act_ explicitly
permitted making of backups for noncommercial use & the DMCA only rescinded
this where there was anti-copying mechanisms.

See
[https://en.wikipedia.org/wiki/Audio_Home_Recording_Act#Exemp...](https://en.wikipedia.org/wiki/Audio_Home_Recording_Act#Exemption_from_infringement_actions)

------
triplesec
HE's not a lawyer, and he's not correct. See the blog comments for examples:
vaguely right, but really this is therefore about as useful as a chocolate
teapot.

~~~
mistercow
>a chocolate teapot

That sounds _delicious_.

------
mistercow
>However, you legally cannot make a tangible duplication (burn another CD).

There is zero precedent for this one way or the other, but the only people who
seem to agree with the author on this extreme point of view are the RIAA. And
even they say it's ok if you buy those royalty-paid Audio CD-Rs. Everyone else
seems to agree that making a copy of a CD for personal use a blindingly
obvious case of fair use.

------
Nursie
'However, you legally cannot make a tangible duplication (burn another CD).'

Uhh, this may depend on the country but I thought an archival copy of
something like a CD was permitted?

With software, for instance, you're allowed to make a backup physical copy
under UK law.

------
unimpressive
“If An Artist Samples Less Than 3 Seconds Of A Copyrighted Song, It Falls
Under Fair Use..."

I was told this one by a high school instructor, and figured it was BS.

I should probably forward this to him; for his students sake.

It's pretty funny how rumors about things manage to spread so well. Stuff like
a "three requests" policy sounds plausibly convenient enough for people to
imagine it's true. I can only assume this is because the reality of copyright
law is; frankly nuts.

~~~
chris_wot
If you forward this to your professor you'll be correcting unsubstantiated
assertions with... unsubstantiated assertions.

~~~
unimpressive
Yes, he (the author) is absolutely wrong on fair use, at the same time; in the
context of making commercial media I can't fault the "get clearance" advice.
The legal penalties if the court doesn't like your fair use argument are
steep. The real reason for the forward would be my cynical evaluation that
handling the issue honestly (eg: Actually explaining fair use and that the
metrics he cites aren't rules at all.) would just end up with him writing off
3 second samples as fair use per his convenient reading of the law and
repeating the same advice unfettered.

It's easier to get people to do the right thing for the wrong reason.[0][1]

[0]: Though it's a lot harder to divert course later once you've employed this
method. (<http://lesswrong.com/lw/uz/protected_from_myself/>)

[1]: That's not something I do often, either.

~~~
chris_wot
You'd be better off forwarding him the actual fair use statute, and get him to
tell you why he believes 3 second samples are legal under fair use.

~~~
unimpressive
That's probably a better idea.

------
michaelhoffman
The title of this article could apply very well to the contents of itself. In
addition to the things mentioned by other commenters, this was odd and clearly
wrong:

> Even if you get a response saying “go for it!”, that provides you with
> nothing in the terms of US copyright law.

Promissory estoppel would surely bar collection of damages where the rights
holder gave unequivocal permission to use the copyrighted material.

------
robmclarty
This _seems_ like an interesting article, but I was only able to read a few
paragraphs before all the letters got jumbled in my visual cortex and I got a
headache. For the love of god, light text on a dark background is a bad idea:
[http://blog.tatham.oddie.com.au/2008/10/13/why-light-text-
on...](http://blog.tatham.oddie.com.au/2008/10/13/why-light-text-on-dark-
background-is-a-bad-idea/)

------
VLM
Both the article and the comments here and on the blog suffer from the mistake
of being binary.

You can get in trouble for copyright violation for doing anything. Reality and
law have nothing to do with it. Its a common techie misconception that there
exists a root password or exploit to the law. Law is an engineering puzzle
with factors of safety based on human judgement, not a mathematical puzzle or
proof.

What the author wrote is basically true, from the perspective of what you need
to do at the level where you want a typical judge to laugh an accusation out
of his court. In strict contrast, most of the comments here and on the the
blog are "if you wish really hard, this is the way I'd like it to be" or at
best "at least some people after spending tens of thousands on legal defense
won at least one case trying this" and even more hilarious "Sure its illegal,
but most people get away with it".

There are several analogies with online discussion of speeding tickets and
cars.

------
armored_mammal
Nobody cares. Copyright is dead.

If you insist on shaving a dead cat 21 ways the whole world is probably fine
with you keeping it to yourself.

~~~
icebraining
Yeah, go tell Jammie Thomas-Rasset that copyright is dead.

