MAD, Moderators and Mormondiscussions.com

[_Everybody Wang Chung]

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!

[_MrStakhanovite]

I salute you sir.

[_Blixa]

Thank you, thank you, thank you.

[_RayAgostini]

I challenged Joseph to report my "copyright infringements" in This Thread. All taken from media reports, and later on in the thread I gave "primary" sources for those reports.

I haven't heard anything, and the reason is because Joseph didn't have even a lame leg to stand on.

Those arguing he shouldn't be banned, that he will still cause trouble even if banned - are wrong. We have been well and thoroughly duped into believing how much "power" he (or copyright owners) actually has, and for that mischief alone, and causing so much turmoil here, and unjustifiably but temporarily getting this board shut down, he should be banned, without delay.

[_beastie]

I admit that I know little about this entire situation. I think a lot has happened behind the scenes. But here's my concern, and I'm hoping that Everybody Wang Chung can assure me it's unfounded.

I've always believed that, it it were taken to a court of law, of course Shades and this board would win. But going to a court of law, even with the assurance of victory, still requires significant time, effort, and money. I've been told there are groups that prey on that fact, and pursue charges in the hopes of attaining a settlement. The settlement isn't much in terms of corporations, but significant in terms of an individual - like a couple of thousand dollars. The victim goes ahead and settles at this financial loss just to avoid the time, effort, and money involved in taking it to court.

Now, if Joseph's intent is simple harassment and power, then it's a different matter and the primary concern is a temporary shut-down of the board like last time. I don't think that's a big deal, but, then again, I wasn't involved so I have no idea how much time and effort Shades had to invest in getting things running again. I imagine it was a headache.

[_Everybody Wang Chung]

I admit that I know little about this entire situation. I think a lot has happened behind the scenes. But here's my concern, and I'm hoping that Everybody Wang Chung can assure me it's unfounded.

I've always believed that, it it were taken to a court of law, of course Shades and this board would win. But going to a court of law, even with the assurance of victory, still requires significant time, effort, and money. I've been told there are groups that prey on that fact, and pursue charges in the hopes of attaining a settlement. The settlement isn't much in terms of corporations, but significant in terms of an individual - like a couple of thousand dollars. The victim goes ahead and settles at this financial loss just to avoid the time, effort, and money involved in taking it to court.

My whole point is that your above scenario would never happen with this board, despite what Joseph would have you believe. 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. Anyone stupid enough to file a lawsuit against this board, not only would have their lawsuit immediately dismissed for failure to state a claim under which relief can be taken, but would also open themselves up for lawsuit by Shades (as explained in the OP).

There are also legal remedies available to Shades if someone submits another takedown notice (see OP).

Beastie, my whole point was to try to convice some people here to not buy into all of this silly hysteria that so many on this board have done lately. It's terrible to go through life, afraid, paranoid and hesitant because of some idiotic bully who doesn't know what the hell he is talking about.

Ban Joseph and immediately reinstate images.

[_beastie]

Thank you, Everybody Wang Chung!! I sincerely hope that Shades listens to you and takes your advice.

[Guest]

http://www.teachingcopyright.org/handout/fair-use-faq

Read it and re-evaluate edited by harmony: Rule #2. No personal attacks. The fact this is 'non-commercial' use is not an automatic defense.

Add in this site features ADVERTISING... and you have more of a problem.

Many will not object to your posting a photo. Those who do will shut this place down in a heartbeat without warning - after filing a legal action against the owners, ISP and every advertisor they see on the site in the banner ads that show up.

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"As a general matter, courts are often interested in whether or not the individual making use of a work has acted in good faith."

The fact most of you know this is a contentious subject you can kiss 'good faith' or mistake goodbye.

Very seldom on this forum will a use be criticism, commentary, news reporting, parody, art, scholarship or research. The limitations in 'fair use' are not broad.

EXAMPLES OF WORKS PROTECTED
BY
COPYRIGHT

advertisements
blank information form
catalogs/directories
collages/montages
compilations of information
diaries/ journals/letters
digitized images
fiction
instructions--fixed form
interviews
jokes--fixed form
leaflets/pamphlets
lectures/speeches
letters/e-mail
lithographs/serigraphs
music scores/song lyrics
newsletters
newspapers/magazines
nonfiction
paintings
photographs
plays/screenplays
poetry
prints
reference books
sculpture
song lyrics
speeches
technical writing
textbooks
Web graphics/pages

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http://www.photoattorney.com/?p=299
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As for this from edited by harmony: Rule #2. No personal attacks


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.

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Good luck in getting that one to fly. Copyright infringement is heard in Federal Court. Registered images used without permission that are not clearly in Fair Use territory get litigated - in Federal Court. One great benefit of registration of photos is that the copyright owner is entitled to legal fees.

So, take a chance - go ahead. One or more will post something that is actionable and it will cost everyone involved. Your attitude of 'I can steal anything I want' as displayed in these forums will be evidence used against you.

"Fair Use" covers limited exceptions and is a minefield if you rely on it to use images without a license to do so. Go ahead, get the site shut down to prove your point!

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" There’s no such thing as a small infringement. My infringed image was used 468 pixels wide on a site I’d never heard of before."
From http://www.jeremynicholl.com/blog/2011/ ... ringement/

A Russian photographer who sued and won for a small time image, used small on a website. Read the article and see what can and will happen if you idiots persist in pushing this here.

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http://en.wikipedia.org/wiki/Fair_use#F ... e_Internet
Noncommercial use is invariably fair. Not true, though a judge may take the profit motive or lack thereof into account. In L.A. Times v. Free Republic, the court found that the noncommercial use of L.A. Times content by the Free Republic Web site was in fact not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for.
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Now that many of you are aware of copyright infringement and believe you will rely on FAIR USE - you stand an excellent chance of becoming subject to WILLFUL COPYRIGHT INFRINGEMENT claims if you use the photos of others and legal action is filed. The idiots who will deliberately put up photos they know are copyrighted and do so without permission just to try and piss people off will be the downfall of this site.

Read the following about it from
http://asmp.org/tutorials/enforcing-your-rights.html

The penalties for infringement can be formidable: Willful copyright infringement — that is, when the infringer knows exactly what he’s doing and does it anyway — can get the pirate a federal suit that could lead to jail time or a big fine, or both. Consider: if the willful infringer uses, without permission, a copyrighted item with a commercial value of more than $1000 but less than $2500, that could earn him a year in the federal prison, or cost him a sizable amount in a fine. And a civil case could slam the offender with damages as high as $150,000 per image pilfered.

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Why are so many on here defending theft of intellectual property?

[_Simon Belmont]

Joseph, do you have any of your or your brother's photos posted anywhere?

I want to steal some.

[_Joseph]

Under the Digital Millennium Copyright Act (DMCA), you can force the Internet Service Provider (ISP) hosting that site to remove or disable the site, so that it cannot be viewed. To do this, you need to send notice to the ISP, and in this notice you need to give the provider your name, address and electronic signature, the infringing materials and their Internet location or the link to the infringing materials. If you’re complaining to a search engine, give enough specific information to clearly identify the copyrighted images, a statement asserting a “good faith belief” that the offender has no legal right to use the material, and a statement that you are the copyright owner or are authorized to act on the copyright owner’s behalf. You must be 100 percent forthright and accurate on all these counts, because this is a serious charge you’re leveling, and if you fudge even a bit of it, you can open yourself up to perjury charges or monetary damages.



Once the provider gets your notice, it has to quickly remove or disable the site or link. Look at this example of a complaint notice (it’s a PDF requiring Adobe Acrobat reader) on the Chilling Effects web site. This site is not exactly simpatico with many of our copyright contentions, but it’s a good informational site nonetheless.

http://asmp.org/tutorials/enforcing-your-rights.html