MAD, Moderators and Mormondiscussions.com
Posted: Fri Jul 15, 2011 2:25 am
INTRODUCTION
I’ve been concerned of late, that this board is becoming more and more restrictive while the MAD Board seems to becoming much more liberal in terms of content. Over at MAD, Kevin Graham is back posting, Droopy has even made several appearances, and it seems that discussions which would have ended in banning or suspension are now being allowed.
I would like to clarify a couple of misconceptions that the moderators have in regards to copyright issues as they pertain to this board, in hopes we can reverse the direction of restricting freedom here.
I would like to briefly touch on a few items as it relates to “fair use” and why “fair use” applies to this board and protects it from copyright infringement.
FAIR USE
First, Under section 107 of the Copyright Act, the fair use of a copyrighted work is not copyright infringement. The Act gives four factors to be considered by the courts in whether using a copyrighted work is a fair use:
(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.
Factors 1, 3 and 4 hugely favor non-commercial website owners and their members. In regards to factor #1, courts have consistently ruled that most internet forums, their images, photos and avatars are not of a commercial nature. If Shades starting charging a membership fee in order to view images, then it could reasonably be considered a commercial website for purposes of the ACT.
In regards to factor #3 courts have ruled that creating smaller reproductions (“thumbnails” or smaller than the original copyrighted work) does not undermine the potential market for sale or licensing of the original copyrighted photos.
Finally, in regards to factor #4, courts have held that there’s not much market for copyrighted photos in discussion threads. See Perfect 10, Inc. v. Amazon. com, Inc., 508 F. 3d 1146 (9th Cir. 2007), Nunez v. Carribean International News Corp., 235 F.3d 18 (1st Cir. 2000) Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006), Kelly v. Arriba-Soft, 336 F.3d. 811 (9th Cir. 2003), Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998), Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).
LEGAL REMEDIES AVAILABLE TO DR. SHADES
In 2008, a district court ruled that prior to requesting a takedown notice, a copyright owner must consider the likelihood of a claim of fair use or the copyright owner could be sued for failing to act in good faith. In that case, Universal Music issued a takedown notice for a video of a child dancing to the song, “Let’s Go Crazy,” by Prince. The owner of the video claimed that since Universal didn’t consider the issue of fair use, Universal could have not had a “good faith belief” they were entitled to a takedown. The district court agreed that the failure to consider fair use when sending a DMCA notice gave rise to a claim of failing to act in good faith. (Lenz v. Universal Music Corp., 572 F. Supp 2d 1150 (N.D. Cal. 2008).
In short, Shades could civilly go after SeattleGhostWriter, Joseph or anyone else who submits a takedown notice for this board because they haven’t adequately evaluated the likelihood of a defense of “fair use".
CONCLUSION
This board is protected from a copyright lawsuit because it is non-commercial in nature, there is no negative effect on the market of any copyrighted material posted here and any copyrighted photos posted here are not duplicate copies in size and/or resolution.
For any of the above reasons, this board should immediately reinstate images, ban Joseph and civilly go after any person who requests a takedown notice for not fully evaluating the issue of fair use.
Peace out!
I’ve been concerned of late, that this board is becoming more and more restrictive while the MAD Board seems to becoming much more liberal in terms of content. Over at MAD, Kevin Graham is back posting, Droopy has even made several appearances, and it seems that discussions which would have ended in banning or suspension are now being allowed.
I would like to clarify a couple of misconceptions that the moderators have in regards to copyright issues as they pertain to this board, in hopes we can reverse the direction of restricting freedom here.
I would like to briefly touch on a few items as it relates to “fair use” and why “fair use” applies to this board and protects it from copyright infringement.
FAIR USE
First, Under section 107 of the Copyright Act, the fair use of a copyrighted work is not copyright infringement. The Act gives four factors to be considered by the courts in whether using a copyrighted work is a fair use:
(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.
Factors 1, 3 and 4 hugely favor non-commercial website owners and their members. In regards to factor #1, courts have consistently ruled that most internet forums, their images, photos and avatars are not of a commercial nature. If Shades starting charging a membership fee in order to view images, then it could reasonably be considered a commercial website for purposes of the ACT.
In regards to factor #3 courts have ruled that creating smaller reproductions (“thumbnails” or smaller than the original copyrighted work) does not undermine the potential market for sale or licensing of the original copyrighted photos.
Finally, in regards to factor #4, courts have held that there’s not much market for copyrighted photos in discussion threads. See Perfect 10, Inc. v. Amazon. com, Inc., 508 F. 3d 1146 (9th Cir. 2007), Nunez v. Carribean International News Corp., 235 F.3d 18 (1st Cir. 2000) Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006), Kelly v. Arriba-Soft, 336 F.3d. 811 (9th Cir. 2003), Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998), Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).
LEGAL REMEDIES AVAILABLE TO DR. SHADES
In 2008, a district court ruled that prior to requesting a takedown notice, a copyright owner must consider the likelihood of a claim of fair use or the copyright owner could be sued for failing to act in good faith. In that case, Universal Music issued a takedown notice for a video of a child dancing to the song, “Let’s Go Crazy,” by Prince. The owner of the video claimed that since Universal didn’t consider the issue of fair use, Universal could have not had a “good faith belief” they were entitled to a takedown. The district court agreed that the failure to consider fair use when sending a DMCA notice gave rise to a claim of failing to act in good faith. (Lenz v. Universal Music Corp., 572 F. Supp 2d 1150 (N.D. Cal. 2008).
In short, Shades could civilly go after SeattleGhostWriter, Joseph or anyone else who submits a takedown notice for this board because they haven’t adequately evaluated the likelihood of a defense of “fair use".
CONCLUSION
This board is protected from a copyright lawsuit because it is non-commercial in nature, there is no negative effect on the market of any copyrighted material posted here and any copyrighted photos posted here are not duplicate copies in size and/or resolution.
For any of the above reasons, this board should immediately reinstate images, ban Joseph and civilly go after any person who requests a takedown notice for not fully evaluating the issue of fair use.
Peace out!