Slashdot Mirror

http://www.copyright.gov/fls/fl108.html

There you go smartarse.

Now GTFO my slashdot.

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.

http://www.copyright.gov/fls/fl108.html

A government form letter states: "Copyright does not protect the idea for a game [...] or the method or methods for playing it." See 17 USC 102(b). Then see a lawyer and then consider filing a counter-notice.

A government form letter states: "Copyright does not protect the idea for a game [...] or the method or methods for playing it." See 17 USC 102(b). Then see a lawyer and then consider filing a counter-notice.

Tetris is still relatively recent (less than 30 years old)

And in a decade, you'll be saying it's "still relatively recent (less than 40 years old)". The rules of a game are properly the subject of patent law, not copyright law, and patents last 20 years. Oh, Mr. Pajitnov didn't apply for a patent? Tough poop.

Compare Atari v. Philips, the KC Munchkin case, to Capcom v. Data East, the Fighter's History case. Atari, the exclusive licensee of Pac-Man, won because KC Munchkin copied more of the original appearance than is necessary to represent the uncopyrightable game rules. Capcom, on the other hand, lost because any similarities between Street Fighter and Fighter's History are scenes a faire, that is, they are expected in the genre and follow from the similarities in uncopyrightable aspects.

Except that jailbreaking iPhones isn't allowed by law. It's an exemption in the DMCA allowed by the US Copyright Office. They can't issue an exemption for PS3 circumvention until the next time they do a review (in 3 years). So in other words the situation with iPhones is irrelevant to this case, in the sense that it doesn't have any bearing on "settled law". Now that's not to say the Supreme Court might not take it into consideration if this case reaches them. But I don't think it will. Somehow I don't think Sony is too keen on the DMCA facing legal scrutiny. If it gets that far, they might just let this one go so the RIAA can keep suing grandmothers.

happens to not be a telephone network.

Any network capable of carrying audio is a telephone network.

Straws, you're grasping at 'em.

The DMCA doesn't have an exemption for getting around copy protection systems on phones.

Not a statutory one.

Instead, it was a judicial decision (those activist judges) that it was within the bounds of fair use.

Not a judicial one either. So we've eliminated two branches of government; one remains. This exemption is "regulatory", as shown on this page:

... which was promulgated in response to a judicial decision. So we've un-eliminated one branch of government. This stuff doesn't exist in a vacuum, really.

Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

PSP with Skype is certainly a "wireless telephone handset": it runs Skype and uses WLAN.

[Citation needed], specifically a statutory or regulatory definition of telephone handset.

PS3 has WLAN, runs voice and video chat, and used to run Skype before Sony shut off Other OS, and the stated goal of Mr. Hotz's hack is to restore an environment comparable to Other OS.

There is no section that defines telecommunications devices or phones in the DMCA or Title 17.

Exactly. This is a judicial call as long as the defendant can show how the PS3 is a "wireless" (supporting WLAN) "telephone" (sending voice over an electronic network) "handset" (combination of PS3 console and Bluetooth headset).

Unlikely. The main part is "telephone", and you'd be hard pressed to get a judge to agree with that definition. Put a thumb drive with audio on it in a package and mail it via UPS - it's an electronic medium, carrying voice, over a package network. Now UPS is a telephone carrier? No. Your definition is simply too broad, and not supported except by wishes.

happens to not be a telephone network.

Any network capable of carrying audio is a telephone network.

The DMCA doesn't have an exemption for getting around copy protection systems on phones.

Not a statutory one.

Instead, it was a judicial decision (those activist judges) that it was within the bounds of fair use.

Not a judicial one either. So we've eliminated two branches of government; one remains. This exemption is "regulatory", as shown on this page:

Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

PSP with Skype is certainly a "wireless telephone handset": it runs Skype and uses WLAN. PS3 has WLAN, runs voice and video chat, and used to run Skype before Sony shut off Other OS, and the stated goal of Mr. Hotz's hack is to restore an environment comparable to Other OS.

There is no section that defines telecommunications devices or phones in the DMCA or Title 17.

Exactly. This is a judicial call as long as the defendant can show how the PS3 is a "wireless" (supporting WLAN) "telephone" (sending voice over an electronic network) "handset" (combination of PS3 console and Bluetooth headset).

The DMCA exemption given by the LoC applies only to wireless phones (and doesn't use the term "jailbreak"): "Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset."

I'm not certain that GP was suggesting claiming that there is excemption for the PS3, but rather that there is precedent for adding exceptions to the DMCA. However, we are getting ahead of ourselves; the matter at hand is jurisdiction. If California does not have jurisdiction then the DMCA is irrelevant to this whole episode.

The DMCA exemption given by the LoC applies only to wireless phones (and doesn't use the term "jailbreak"):

"Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset."

Sadly, the DMCA doesn't only cover copying - it also has significant anti-circumvention provisions. Both copying protection and access protection are covered.
Some info may be found here: http://copyright.gov/legislation/dmca.pdf
Here is title 17, which contains the copyright code: http://www.copyright.gov/title17

Sadly, the DMCA doesn't only cover copying - it also has significant anti-circumvention provisions. Both copying protection and access protection are covered.
Some info may be found here: http://copyright.gov/legislation/dmca.pdf
Here is title 17, which contains the copyright code: http://www.copyright.gov/title17

Sony sues them for distributing circumvention methods and (?) devices. That is illegal in the DCMA

"Pffering to the public, posting online, marketing, advertising, promoting,
installing, distributing, providing, or otherwise trafficking in any circumvention technology,
products, services, methods, codes, software tools, devices, component or part thereof,
including but not limited to the Elliptic Curve Digital Signature Algorithm (“ECDSA”) Keys,
encryption and/or decryption keys, dePKG firmware decrypter program, Signing Tools,
3.55 Firmware Jailbreak, and/or any other technologies that enable unauthorized access to
and/or copying of PS3 Systems and other co ....

I would think however that part of the PS3 is not an effective measure since it is not an good implementation of de ecDSA algoritm. Number might not be copyrightable (maybe?) but circumvention devices are.

There are however some circumventions allowed (notice that on that page jailbreaking is legal on phones but not on video game consoles???)

If i was Sony i would scramble now to re-enable other-OS, to take away the "i am only re-enableing otherOS"argument that reverse engineers are now using.

The copyright on binary code is not different from source code. Not in US law anyway...

http://www.copyright.gov/help/faq/faq-general.html#what

"What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section "What Works Are Protected.""

Interestly computer software is NOT specifically named in the berne convention For that the berne convention is extended witht the wipo theaty of 1996">

"Such protection applies to computer programs, whatever may be the mode or form of their expression.4"

(I read this a source and binary are both covered in the mode or form)

I think you'd be in trouble for preparing a derivative work without the original copyright holder's permission, see below.

http://www.copyright.gov/title17/92chap1.html#101

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

  103. Subject matter of copyright: Compilations and derivative works

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

  106. Exclusive rights in copyrighted works38

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(2) to prepare derivative works based upon the copyrighted work;

among other things, the lawyer friend can tell you exactly how to register the copyrights on your software.

As an IP Lawyer, I can tell you that that's not really rocket science. The copyright office gives you pretty much everything you need to know here:
http://www.copyright.gov/circs/circ61.pdf

Here is your citation (17USC 107): http://www.copyright.gov/title17/92chap1.html#107

It doesn't use the term "non-commercial", it says "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;".

I don't see that it matters how they are suppored, ads or donations, it's nonprofit.

It is eminently possible that really widespread 3d printing(unlike novelty prototype stuff where the copies are worse and more expensive than the real thing) would simply lead to a change in the law to "address the problem". In this case, for instance, the proposal was advanced to create an entirely new form of "intellectual property" consisting of the shape of boat hulls, because it was trivial for company B to copy company A's design just by buying one, taking an impression, and then producing as many fiberglass copies as they could sell.

If memory serves, something similar was done for IC masks, and in the EU certain geographic regions now have a novel form of quasi-trademark status, not belonging to a company or person; but to a place(ie. Heinz inc. or licensees are the only ones who can see 'Heinz brand catsup'; but anybody can market sparkling wine as 'champagne' IFF it was produced in Champagne, and under no circumstances otherwise.)

I would assume that truly practical 3D printing would draw the fire of incumbents, much the same way that VCRs, MP3s, etc. did, as soon as they become economically viable. It will also be interesting to see if there is some "hardware DMCA" blocking the reproduction of parts that incorporate 'anti-reproduction-technology like microdots or GUID RFIDs or the like'...

of course in a world where we're all free to take someone elses recipe, use it, copy it, publish it or even claim it as our own we know very well that fuck all harm has been done to the industry for the lack of legal protection on such creativity. We live in a world where everyone has family recipes but hardly anyone has family music.

Actually, according to the USPTO, recipes ARE subject to copyright. What is NOT subject to copyright is lists of ingredients. So it's legal to copy the ingredients in a recipe, but it's NOT legal to copy the instructions on how to prepare, combine, and cook them, and claim them as your own work.

they pressured the US government to pressure other countries to adopt copyright legislation treaties more stringent than what the DMCA was, and then use that to basically cause the US to now have to adopt those as well.

As I understand it, the copyright provisions of ACTA were merely a rewording of 17 USC sections 512 and 1201 in the language of treaties. Read the the parts about "graduated response" in context, and discover that they aren't "three strikes" any more than the repeat infringer provision of 17 USC 512(i)(1)(A). What do I misunderstand?

"Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form." - US Copyright office

I agree with the parent. There are obvious artistic similarities that would make this subject to copyright.

Your understanding of copyright is incorrect. You should consider reading the faqs if not the actual laws provided by the copyright office.

You can get started here:
http://www.copyright.gov/

I am not a lawyer and as such, do not have the training and experience required to be able to help you. However, I am an American citizen and that makes me responsible for making sure I myself do not break U.S. laws. In our legal system, ignorance of the law is no excuse. While being ignorant of the law can, in some cases, change the punishment you receive, it will not excuse you from breaking the law entirely.

This is why it is so important for us to read at least the aspects of the law that are relevant to what we do. Given the nature of the Internet and computers in general, copyright law is very important to all of us. Despite this, somehow almost no one reads it yet everyone tries to wax intelligent about it.

Many laws are very very cryptic. Luckily, copyright law is not one of them. Go here to obtain a copy of the current U.S. Copyright Law:

http://www.copyright.gov/title17/

Be sure to check back regularly for updates. When reading this document, it is important that you read and understand Chapter 1, Section 101, "Definitions" before reading anything else. If you do not read this and understand it, you *WILL* misunderstand the rest of the document. Once you understand this section, the rest of the document becomes far easier to understand.

Doing this will not prepare you to battle IP lawyers in court, but it will give you a better understanding of copyright in the U.S. and help you avoid copyright issues in the first place. As always, even if you read this law, go hire a real lawyer if you know you are on shaky ground. Attempting to clone someone else' product should immediately make you realize you are on shaky ground, even if you have not read Title 17 of the U.S. Code.

Hint: You don't have to read the entire document. There are sections that do not directly pertain to most modern computing situations. However, it should become very clear very quickly which sections are important to you.

Doing this now will help you to see the infringements you have made in your game. Just one look at the screenshot of your game reveals too many copyright violations to ignore, let alone the text on your web page.

He was facing criminal (i.e. misdemeanor/felony) charges. There wasn't any evidence at all (none) to convict the guy. In a civil case you might be correct, but at least here the burden of proof is much higher; and suspicion alone typically doesn't cut it.

Citation Needed.

I believe the exemption in question was enacted in 2006. This is the relevant exeception, right?

The Librarian of Congress, on the recommendation of the Register of Copyrights, has announced the classes of works subject to the exemption from the prohibition against circumvention of technological measures that control access to copyrighted works. Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. 1201(a)(1)) during the next three years.

-snip-

5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.

Exactly what part of that exemption do you read to imply that you cannot sell a device legally unlocked?

One could argue that between the purchase and the resale that he was the owner of the device and thus was covered, but let's keep perspective - Majed wasn't convicted for rooting his Droid, he was running a business on a technicality, and a stretched one at that.

Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

I don't see how the fact that he was the owner of the phones is a technicality or a stretch in any way. He wasn't hacking someone else's phone; he was hacking phones he owned so they could connect to another network. Would it be legal in your opinion if he resold the phones as-is and the end user "initiated the circumvention" by asking him to do it? Is it illegal in the US to make a business out of doing something you're legally allowed to do?

5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.

That sure sounds like exactly what he was doing.

Here's the section of the DMCA which grants authority to the LoC:

The Librarian shall publish any class of copyrighted works for which the Librarian has determined, pursuant to the rulemaking conducted under subparagraph (C), that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected, and the prohibition contained in subparagraph (A) shall not apply to such users with respect to such class of works for the ensuing 3-year period.

5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.

That sure sounds like exactly what he was doing.

Here's the section of the DMCA which grants authority to the LoC:

The Librarian shall publish any class of copyrighted works for which the Librarian has determined, pursuant to the rulemaking conducted under subparagraph (C), that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected, and the prohibition contained in subparagraph (A) shall not apply to such users with respect to such class of works for the ensuing 3-year period.

Section 1201(a)(1) of the copyright law requires that every three years I am to determine whether there are any classes of works that will be subject to exemptions from the statute’s prohibition against circumvention of technology that effectively controls access to a copyrighted work.

Uh, did you even read the article? It talks about it there. Pretty clear that the courts have interpreted mass-unlocking to be illegal. Might also want to read this.

Hmm.

(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

It seems to me that jailbreaking was specifically authorized both to run applications and to connect to a different network.

Source: http://www.copyright.gov/1201/

The question here isn't whether she's liable. It's for how much.

Alito's dissent (starting on page 26) is interesting, and gets into just how thorny a problem it is to prove an "innocent infringer" defense under 17 U.S.C. 504. (And again, an "innocent infringer" isn't off the hook--it just reduces the minimum statutory damages that may be awarded to the rights-holder.) Basically, the girl argued that she was too young, too technically unsophisticated--not a willful infringer for the purposes of awarding damages. The judge who originally reduced the damages more or less agreed with her (his ruling can be found here. The court of appeals then looked at the argument differently. (There order is here.. They considered the innocent infringer defense directly under 17 U.S.C. 402(d) (full text available here. Basically, that says you can't be an innocent infringer if you have "access to" published recordings that have the copyright notice on them. The court of appeals pretty broadly said that this provision prevented Ms. Harper from claiming innocent infringement. Bottom line, she never disputed that she had access to such recordings (whatever that might mean).

Alito doesn't like the appeals court saying that this "access to" argument may act as a matter of law to prevent someone from being an innocent infringer. I think he's right about that--access should be a question of fact that needs to be decided on evidence, and it seems like nobody in this case really talked much about it.

The question here isn't whether she's liable. It's for how much.

Alito's dissent (starting on page 26) is interesting, and gets into just how thorny a problem it is to prove an "innocent infringer" defense under 17 U.S.C. 504. (And again, an "innocent infringer" isn't off the hook--it just reduces the minimum statutory damages that may be awarded to the rights-holder.) Basically, the girl argued that she was too young, too technically unsophisticated--not a willful infringer for the purposes of awarding damages. The judge who originally reduced the damages more or less agreed with her (his ruling can be found here. The court of appeals then looked at the argument differently. (There order is here.. They considered the innocent infringer defense directly under 17 U.S.C. 402(d) (full text available here. Basically, that says you can't be an innocent infringer if you have "access to" published recordings that have the copyright notice on them. The court of appeals pretty broadly said that this provision prevented Ms. Harper from claiming innocent infringement. Bottom line, she never disputed that she had access to such recordings (whatever that might mean).

Alito doesn't like the appeals court saying that this "access to" argument may act as a matter of law to prevent someone from being an innocent infringer. I think he's right about that--access should be a question of fact that needs to be decided on evidence, and it seems like nobody in this case really talked much about it.

I shouldn't need to jailbreak my phone.

Putthing this up as an alternative to allow the vendor to do whatever it wants is just feeding yourself the rope to hang yourself with.

Sooner or later they will tighten the noose; and a device will be manufactured that you can't easily break, or they'll pass a law making it illegal to break. Probably both.

One needs to vocally resist their grabs for control, so that we don't HAVE to resort to going underground to exercise the freedom we should legitimately have.

The recent jailbreaking victory is hardly a conclusive win:

All the Copyright Office has said is they're not going to prosecute jailbreakers.

"Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. ? 1201(a)(1)) until the conclusion of the next rulemaking."

http://www.copyright.gov/1201/

And with "the next rulemaking", they may change their mind and start prosecuting people again.

And, as noted above, *nothing* in this policy says that Apple can't prosecute jailbreakers for violating their license agreement.

Acknowledging the source of the copyrighted material does not substitute for obtaining permission. http://www.copyright.gov/fls/fl102.html

if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use.

No, it's not. At all. See http://www.copyright.gov/fls/fl102.html. Whether or not the original document is being used for commercial purposes is only 1/4 of the things evaluated when deciding fair use.

Actually Harrison['s estate] now owns the copyright on "He's So Fine".

Then consider Three Boys Music v. Bolton, about "Love is a Wonderful Thing" by Michael Bolton.

About Song of the South which I believe is out of copyright in some of the world including here in Canada. What if an American legally buys it here and then goes home with it?

"In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited." 17 USC 602(b). The exception for personal baggage in 602(a)(3)(C) appears to apply only to 602(a), not 602(b).

Or anyone who bought a copy of the album All Things Must Pass by George Harrison.

let's rephrase grandparent post to what he actually meant, "who PAYS for pirated material ONLINE?"

Then anyone who has bought a copy of All Things Must Pass online. Or anyone who has donated to a private tracker or even maintained a tracker-wide share ratio, given that a share ratio expresses "expectation of receipt [...] of other copyrighted works".

This is still nothing but a bunch of smoke. Recipes are not copyrightable! Never have been.

http://www.copyright.gov/fls/fl122.html

If you want to be in publishing, you should study copyright law. If you think copyright law should be different in regards to recipes

Recipes aren't copyrightable. I suspect Cooks Source printed more than just a recipe.

From the US Copyright Office: http://www.copyright.gov/fls/fl122.html

Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.

The recipe as a list of ingredients and instructions does not in general qualify for copyright protection.. (This does assume United States jurisdiction.) Here is a nifty quote and link for you:

http://www.copyright.gov/fls/fl122.html:

Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression--a description, explanation, or illustration, for example--that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.

You would have to include more than just a standard recipe to qualify. In this case the "magazine" is clearly in violation (assuming they did not have permission) because they copied not just the recipe but the format, style, imagery and non-recipe text included in the article.

Just a nit to pick.

If you think copyright law should be different in regards to recipes and...

Copyright doesn't apply to recipes that are only lists of ingredients. It only applies to the description, illustration or explanations that surround the recipes.

He could have legally lifted the recipe list, then rewrote the body text and been 100% in the clear. He even could have said "I found this recipe on the web, originally put up there by Monica..." and still wouldn't have owed her a dime.

http://www.copyright.gov/fls/fl122.html

Oh, yeah. I forgot the context.

Individual recipes are not protected under copyright in the United States. The question becomes how much has to be added to a recipe to make it copyrightable... and that's where you'd need a good lawyer.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
• The nature of the copyrighted work
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole
• The effect of the use upon the potential market for, or value of, the copyrighted work

While the copying and distribution is not for commercial use (which may be debatable), it is also not for "nonprofit, educational use". As you said yourself, it is for personal use. Title 7 says "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." and defines publication as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. Seeing as the downloading individual ends up with a copy of the work, it would seem that the works offered are, in fact, published.

Then, there are the rest of the tests. There is the nature of the work, which is a work created for commercialization and profit. Then, there is the inconvenient fact that the entire work is being copied and distributed. Finally, there is the fact that by providing freely available copies of works over the internet, the potential market for and value of authorized copies are greatly reduced.

The law applies to all copies. A satire for commercial use would still fall under fair use, as would copying for inclusion in criticism even if such criticism were done for commercial purposes; copying for person use, as is the case in the **AA suits, and copying for commercial use by direct publication, as is the case the article talks about, are still not covered by fair use.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
• The nature of the copyrighted work
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole
• The effect of the use upon the potential market for, or value of, the copyrighted work

While the copying and distribution is not for commercial use (which may be debatable), it is also not for "nonprofit, educational use". As you said yourself, it is for personal use. Title 7 says "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." and defines publication as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. Seeing as the downloading individual ends up with a copy of the work, it would seem that the works offered are, in fact, published.

Then, there are the rest of the tests. There is the nature of the work, which is a work created for commercialization and profit. Then, there is the inconvenient fact that the entire work is being copied and distributed. Finally, there is the fact that by providing freely available copies of works over the internet, the potential market for and value of authorized copies are greatly reduced.

The law applies to all copies. A satire for commercial use would still fall under fair use, as would copying for inclusion in criticism even if such criticism were done for commercial purposes; copying for person use, as is the case in the **AA suits, and copying for commercial use by direct publication, as is the case the article talks about, are still not covered by fair use.

Wrong.

Reverse engineering (section 1201(f)). This exception permits
circumvention, and the development of technological means for such
circumvention, by a person who has lawfully obtained a right to use a
copy of a computer program for the sole purpose of identifying and
analyzing elements of the program necessary to achieve interoperability
with other programs, to the extent that such acts are permitted under
copyright law.

Source: http://www.copyright.gov/legislation/dmca.pdf

Actually, I know that it's not. All information, including this post, are automatically protected by copyright of some sort. But frankly, they probably shouldn't be. It's tantamount to copyrighting language, and stifles the free exchange of ideas. Then we have to go through weird "paraphrasing" hoops in order to retransmit a captivating idea. If we could, language would have been copyrighted too; and then no one would be able to learn anything from anyone else.

And btw, recipes are actually exempt from copyright rules.

What's the legal difference (IANAL) between optimizing HTML and inserting ads?

Optimizing HTML does not appear to create a derivative work as defined in US copyright statute because the removal of data does not represent an original work of authorship by itself. Ads, on the other hand, are an original work of authorship; there's a reason that the text of an ad is "copywritten" before it's copyrighted.

Commercial activity doesn't have anything to do with it. The copyright law does not say "except for personal use". It applies regardless of personal or commercial use. If you believe that the copyright law has an exemption for personal use, please show me where it is.

Item 1 from Section 107 explains that a factor of "fair use" is the "purpose and character" of the use, whether it's commercial or not. So it's not an explicit exemption, but you have more of a case to crib something if you're not making money.