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Why the hell should an API, the computer equivalent of a phone number, qualify for copyright protection?

An API is not the "equivalent of a phone number". Not even close. It's clearly a creative work. The question is whether it is too abstract to be protected by copyright. "Copyright protection is not available for ideas, program logic, algorithms, systems, methods, concepts, or layouts.", says the Copyright Office. It might be patentable, if sufficiently original, but that's not an issue here.

Copyright in fictional characters has been tried, occasionally with success. That's one of the broadest forms of copyright protection. Trademarking the name of the character provides more protection, which is why we see Darth Vader(tm) markings. That doesn't apply to an API.

Here's a citation:

http://www.publaw.com/biography.html

Look down to the "Copyright Infringement" section. It's about publishing private letters, but you're the one who's going to have to show that answering machine messages are treated differently than letters.

In summary, it says that it might be fair use to quote from a private letter, but the copyright in the letter stays with the author, not the recipient.

Actually, no. The paper manuscript or the digital file belongs to you. The content, i.e., the copyright, belongs to the letter writer. If you publish a letter or email (or even show it to someone else), the letter sender can sue you for copyright violation. Granted, there are fair use exceptions, but you cannot publish, in whole or in substantial part, any letter you receive without the author's permission. http://www.publaw.com/biography.html

In Canada, at least not long ago when I was still an avid photographer, permission had to be asked of an individual before h/is/er picture was taken.

Dunno about Canada or Switzerland, but in the US, the right of publicity in most states is relatively weak: http://www.publaw.com/rightpriv.html . Asking for permission might be a good idea, but in the US, it seems pretty clear to me (IANAL) that what google is doing isn't violating the right of publicity.

I think it's reasonable that a person has a right to vet images of them that reach the public.

Seems unreasonable to me. You're out in public. People can see you.

Extending the argument, property has value, and public posting of a property's image could impact on the property's value.

Just because a particular action can affect the value of your property, that doesn't mean that you have a legal right not to have that action taken.

Not to mention weird stuff like stalkers.

Huh? If someone's stalking you, and they know your address, you think they won't be able to get a photo of your house?

Google's gone totally Kafka.

I actually find your overly expansive view of property rights a lot scarier than anything google is doing.

IMO the really creepy stuff happens when lots of data about a particular person gets aggregated and made conveniently available. For instance, there are web sites like snitch.name that web-scrape social networking sites. Google isn't aggregating data about individuals here, and in fact they're trying pretty hard to avoid even including recognizable faces in the photos. Another creepy thing is when employers won't give Joe a job because Joe's credit rating is bad -- and then Joe can never pay off his debts, because he can't get a job. Again, it isn't google doing this.

I did read the article, but evidently the submitter, who claimed that the picture was "unquestionably" a parody, did not. The article doesn't include any explanation of how the photoshopped image comments on or criticizes the original (although another commenter above does provide a pretty good potential justification), indeed, as you say, the creator doesn't mention that as a purpose at all. The legal standard for parody as justification of fair use is, as I understand it, "reasonably could be perceived as commenting on the original or criticizing it, to some degree"; the article suggests the creator of the image wouldn't claim that that was the purpose of the image.

Hey, I never knew that. Turns out you're right.

http://www.publaw.com/advantage.html

The second reason a copyright owner should register a copyrighted work in a timely manner is that the copyright owner will be eligible to receive "statutory damages" and "legal costs and attorneys' fees" from a copyright infringer. A timely manner means that the copyright registration was filed prior to an infringement taking place or within three months from the publication date of the work.

Wrong. Fair use is also a defense in trademark infringement cases. Fair use of a trademark includes things such as descriptive use, e.g. "Similar to Kleenex", use in advertising by resellers, and a whole host of other things.

The article Fair Use of Trademarks is a good read on the subject.

No, characters can be subject to copyright.

Try using google, if nothing else:

Protection of Fictional Characters
How can I tell if a character I have used is copyright protected?

And yes, aspects of them can be trademarked, too.

Yes there is. You are the one who clearly doesn't understand the law.

Read it and weep.

Yaaaay! The long debate is settled! We have a yardstick in measuring reasonable limits to the 1st Amendment!

If "aproposofwhat" thinks it's propaganda, it's not protected speech!!

Listen 'tard, the most important property of the 1st Amendment is that it specifically shields speech that pisses you off. You are the self-important flamer the Founding Fathers were thinking of.

Oh, yeah, this is a Fair Use discussion. So it's not really about the First Amendment at all. Then let's focus on fair use.

"fair use" is intended to protect scholarly works

"scholarly works", lol. Such works of great academic value as "Amish Paradise"?

There is a standard "four factors" test of fair use. Your venom seems to have rendered you ignorant of them, so let's review these:

1. Purpose and character of use.
   • commercial v. non-commercial use
   • nature of use (criticism, commentary, etc.)
   • tranformation v. verbatim use (this is the fair-use basis of the protection of parody)
2. Nature of copyrighted work (creative v. informational)
3. Amount and substantiality of copied portion
   • Amount: seconds v. minutes, paragraph v. pages, etc.
   • Substantiality: the distinctiveness, recognizability, and relative importance of the copied portion (such as, the opening of "Stairway to Heaven" v. 10 seconds of the middle)
4. The effect of the use on the value or marketability of the original.

All information drawn from http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html and http://www.publaw.com/parody.html.

Notice that there is no fifth test, "Degree to which the use offends strongly-held opinions." So citing that as why you think fair use is inapplicable is flatly asinine, as well as a dishonest and weaselly way to try to interfere with someone else's First Amendment rights.

Now, I'm not a lawyer, and I've never seen the work in question, but the commentary in TFS (You did read TFS, didn'y you? No, I didn't think so. Ignorant and angry; that's a great combination you've got going for you) tells me that the use in the offending movie was specifically criticising the content and assertions of the lyrics of the song, not just as light background music. There's your scholary usage, you twit. (It also tells me the submitter is a twit, because it's not ironic if it's intentional and to the point. Irony is "wow, he accidentally shot himself". Irony is not "wow, he intentionally shot himself.")

After many preview submissions, I can see that the mods have rightly submarined your clueless post into "-1 Troll"dom. I'm glad, even if this means my response to you is also invisible.

We usually get so much inaccurate legal speculation, that it's a good thing to have original sources like that to link to.

To that I'd like to add that there is a type of fair use specific to trademarks and relevant to this case--nominative fair use. I mentioned that in my submission, but I guess this guy beat me to submitting it.

I'm mentioning it because, otherwise, we'll probably have someone trying to apply the four factor test from copyright law to trademarks once the issue comes up... :-)

- I Don't Believe in Imaginary Property

Allegations involving copyright infringement frequently occur when the author of an unauthorized biography makes use of the subject's published or unpublished letters and papers or possibly from oral conversations the author may have had with the subject.

In Salinger v. Random House, Inc., the author's use of extensive quotations from unpublished letters written by J.D. Salinger, the subject of the biography, without Salinger's permission was deemed to be copyright infringement. Under copyright law the writer of unpublished letters has the right to control the first publication of those letters.

Finally, Yahoo reveals that the way to delete a Yahoo ID is to commit serial copyright violations!

What is the legal stance on parody?

I know that penny-arcade had a run in with this when they did their strawberry shortcake meets alice comic.

The only thing I could find was this: http://www.publaw.com/parody.html

Thoughts?
Lawyers?

[Defendant] argues that the Sheppard Letter [the letter in question] is simply detailing a process or instruction [i.e. not copyrightable] that would elicit a response from the Website administrator, specifically the removal of comments about Melaleuca and Mr. VanderSloot from the Website, and therefore is not copyrightable.

Under the DMCA, the copyright holder need only plead a prima facie case of copyright infringement. [Citation] A certificate of registration of a copyright constitutes prima facie evidence of ... validity of the copyright ... [Plaintiff] has registered the Sheppard Letter with the Copyright Office. ... This is prima facie evidence that the Sheppard Letter is copyrighted and satisfies the first prong of demonstrating a prima facie case of copyright infringement. [Defendant] has valid arguments and enforcing this subpoena pre-litigation may have far-reaching consequences, therefore some preliminary examination of the potential claim is necessary. However, the Court will not go into an in-depth analysis of the merits of a copyright infringement claim in determining whether to quash this subpoena. It is sufficient in this instance that Melaleuca has registered the Sheppard Letter with the Copyright Office.

Trademark definitely has fair use.

http://www.publaw.com/fairusetrade.html

http://en.wikipedia.org/wiki/Fair_use_(US_trademark_law)

The poster above is almost right - in most US jurisdictions celebrities have a "right of publicity" which works in a similar way to a trademark, and allows them to exclude the use of their name or image for certain commercial purposes. At one extreme factual reports about famous people (news, history, or biography) are protected as free speech. At the other extreme uses in advertising, especially if they imply any sort of endorsement, are not protected.

That's true, but in the U.S., if you don't register, you cannot bring suit, and if you register late, you can only claim actual damages (as in, how much money you lost because somebody copied your work), not statutory damages (where the $100,000+ liability figures come from), and you cannot claim attorney's fees.

Note: I am not an attorney. I used http://www.publaw.com/advantage.html as my source.

Yes, they can take your picture, but they can't necessarily sell it without your permission.

Right of publicity

The basic presumption underlining right to privacy laws is the protection of an individual from the disclosure of private facts. The general principles are that one who publicizes a matter concerning the private life of another is subject to liability for invasion of privacy if the matter publicized is of a kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public. The right of publicity provides that an individual has the right to control the commercial use of their name, likeness or identity. While the right of privacy protects an individual from the disclosure of embarrassing facts, the right of publicity protects the individual from financial loss from an unauthorized commercial use of their name or likeness. As a general rule the right of privacy will only apply to a living person while the right of publicity may also apply to a deceased person.

They could edit out most of the people, but they really have no obligation to do so.

Yeah, and "Cops" just uses a photo release permission form for fun.
Publication of Photographs: Is A Release Required?

As far as the law is concerned, the value of the student essay is what the students can get for them for being (re)published. Copyright law doesn't care about sentimental value, at least not directly (it has the side effect of allowing authors to control works for sentimental reasons, but that is not the purpose), and it doesn't care about the value of the work in terms of evaluating the student's skills. Proof: If the student tried to make using the work to grade him conditional on the grade being a good one, otherwise he'll sue you for a copyright violation by using the work in an unapproved manner, they'd be laughed out of court. Copyright law has no provisions for that sort of "value". Use of the anti-cheating service does nothing to affect the value of the student essays, which was $0 before being submitted, and $0 after being submitted.

Copyright doesn't allow the copyright holder to restrict "use" of the work, no matter what software companies and a few paid-for judges may think. So the student can't tell the teacher that he can't "use" the work unless the teacher gives him an "A"; that's outside the scope of copyright.

Copyright has nothing to do with the value of the work if published. Copyright protects unpublished works (which these essays are) as well. To some extent, it protects them MORE than published works, as one of the fair use tests ("nature of the copyrighted work") is much harder to satisfy for an unpublished work. ( see PubLaw)

Furthermore, copyright law provides for equitable relief (e.g. injunctions) for ALL copyright violations, and for statutory damages of $750 up to $150,000 per work for all works registered with the copyright office at the time of the violation. Doesn't matter if you think the work is actually worthless, statutory damages apply regardless.

And, of course, the works are demonstrably NOT worthless to turnitin.com, which is using them as the basis for their for-profit service.

The students have a darn-near-ironclad argument here. The only place it fails is the "You're students and you have no rights" argument, which flies in far too many courts.

The United States Supreme Court in Campbell v. Acuff-Rose Music, Inc. (1994) stated in no uncertain terms that a parody as a form of criticism or comment could be fair use of a copyrighted work. Oh, Pretty Woman is a rock ballad written by Roy Orbison and William Dees. Luther Campbell and his musical rapper group, 2 Live Crew, wrote a rap song entitled Pretty Woman that had substantial similarities to the Orbison/Dees song. 2 Live Crew attempted to obtain permission for their parody from Acuff-Rose, the publisher of Oh, Pretty Woman, but were refused permission. 2 Live Crew then proceeded without permission to release their rap song and accorded Orbison/Dees with authorial credit and listed Acuff-Rose as the publisher. Acuff-Rose then brought a lawsuit, which at the trial court level ruled in favor of 2 Live Crew based upon its fair use parody defense. This decision was reversed on appeal when the Sixth Circuit ruled against the fair use parody defense because of the commercial nature of the 2 Live Crew rendition and the presumption of market harm that the rap rendition might cause for the Orbison/Dees song. The Sixth Circuit's decision was then appealed to the Supreme Court. The Supreme Court accepted 2 Live Crew's song as a parody because the rap song mimicked the original to achieve its message and because it "reasonably could be perceived as commenting on the original [Oh, Pretty Woman] or criticizing it, to some degree." The Court then had to decide whether a parody such as Pretty Woman could claim protection from copyright infringement liability under the scope of the fair use doctrine.

I've been buggin slash editors on several karaoke / tech related stories for a while now (yes I know, grousing about rejected submissions, blah blah) Still sort of ontopic, but the karaoke twist makes it more fun.

Our bar pays Ascap/BMI/Sesac for the right to use backing tracks in a public/business enviroment. It's not just backing tracks we're paying for, we're paying for the rights to the composition.

These 3 licensing agencies started years and years ago during the advent of the player piano. A player piano was sort of the "midi" file of it's time. You could faithfully reproduce any artists rendition of their compilation if you had the reels. Artists started feeling robbed when player piano companies started basically, selling their compilations without their permission.

Back then, artists got paid to play, but if someone could just buy a player piano reel, what was the point?

Fast forward to today and my problems with karaoke.

I stream video live from the bar I work at. If you have winamp, or mplayer windows running under wine on linux you can check it out here.

http://205.188.215.229:8014/listen.pls

My problem is this. If someone sings over the original artists compilation, is it still the original? Why should I have to pay a licensing agency for something that is totally different from the original (once someone has sung over it)

The closest I can find to why I shouldn't is a special section of the US copyright law that deals with parody and derivitave works.

http://www.publaw.com/parody.html

So summarizing, I don't think the license agencies will see it any different for midi files. They don't see it any different for karaoke, despite some of the singers being so far off tempo and key, that it could be considered a parody.

Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair . . . I think google's implementation of this project very clearly falls under scholarship and/or research purposes.

All four factors of "fair use" must be taken into consideration by the courts. See Rich. And because any alleged infringement can usually be distinguished from pre-existing case law, there is no such thing as an automatic fair use because one of the factors weighs heavily in favor of the alleged infringer. Copying 300 words can be an infringement while copying an entire work may not be an infringement. See Hollaar .

Until the courts decide whether a particular activity is a fair use, the alleged infringer is legally a kind of Schrodinger's Cat. Until the courts decide, Google is in a sense both a guilty infringer and an innocent fair user. Only legally observing Google's state by trial can definitively answer the question of whether Google's acts infringe on the rights of the plaintiff authors.

Trademark law allows e.g. Sony to stop these people from writing on the box "for use with the Playstation 2".

Say what? The Lanham Act (the current major revision of U.S. trademark law) permits nominative use of another person's trademark: "For use with PlayStation®2 computer entertainment system. PlayStation is a trademark of Sony. Action Replay is not sponsored or endorsed by Sony."

Though I do think Datel is making some unlicensed discs, stuff like Action Replays and the GC Freeloader

I know about those utility discs, but why hasn't Datel yet published any unlicensed games?

Read and learn.

"So why should a for-profit company (Google) do so without paying the people who they are copying from?"

Oh, I don't know, because they're not shilling all over Slashdot as the spokesperson for the American Publishers Association, otherwise known as the assholes who would shut down libraries in a moment if they thought it would fly.

You know, in looking at your post history, it's interesting that you don't mention One. Single. Word. about any of the following:

* Actually addressing what Google will be doing, because it sure as shit isn't what you're trolling on about.

* The fact that many of the works that Google is copying from are public domain works, or do you expect modern publishers to be paid for works that have in the public domain for centuries? Sweet Jesus, how will Chaucer feed his family!?

* You mention choice, which would be appropriate for an APA Spokesperson. To be published, non-bestselling authors have absolutely no choice about the contract that is put in front of them. If they don't take it and their $.50-$1 per copy sold, they don't get published. Frankly, I believe you couldn't care less about the authors based on your posting history.

* You repeatedly deride Google for making a profit from the public domain or by using Fair Use towards copyrighted works. So far, you haven't actually demonstrated which parts of Google's service are breaking the 4-part rule of literary Fair Use.

Your argument regaring "natural rights" will get nowhere in court, except perhaps some Rule 11(c) Sanctions

You may, in fact, be correct from a philosophical perspective, but under Copyright Act as it is, Fair Use (like self-defense) is an affirmative defense which detailed here.

Both require that the party asserting the defense establish it by a preponderance of the evidence. If you come up short, you've infringed, take solace knowing your atttorney will go on a nice vacation with the legal fees you've paid.

Of course the problem here is that since this book was highly critical of the first author's work, if the first author would have been thin skinned, he could have easilly said no and thereby stifled the debate about the issue.

An author who refuses criticism of his work is much more likely to make the work subject to the fair use limitations on the scope of copyright. Not only did the Supreme Court of the United States uphold parody as a permissible fair use, but when the Court upheld repeated copyright term extension in Eldred v. Ashcroft (2003), it also clarified that without the right to criticize and make other fair uses of copyrighted works, copyright would likely unconstitutionally abridge freedom of the press.

To give an exaggerated example, let us copy the entirity of Star Wars Episode (choose your favorite) into a digital format, and digitally replace the heads of the main characters with other heads (say, famous politician's heads) for the purpos of parody, using advanced CGI techniques to synchronize the motions of the heads with the real motions from the film. Now, release this tour-de-force of parody upon the internet, safe in the assurance that the intent was parody.

Trust me, LucasArts will sue, and they will win, because you only have one of the four legs of the fair use test - Purpose and Character.

You clearly have failed the Amount and substantiality test, since you copied the entire film. You fail the Nature of the work test, since it is a commercial product that you are copying. I have no idea what the courts would decide for the Effect of use test, since I have no idea what that effect would be, but a reaonable court could conclude that some sales, at least, had been lost to the parody, which may be sufficient to fail the fourth test.

Thus, the preponderance of the tests rule towards, not away from, copyright infringement, even though the intent was parody.

In this case, the link to Publaw and their article on Parody (which was present in my original comment) would have been a good place to look for information. Looking there, you will see a discussion of the "Oh, Pretty Woman" case which, while not identical, is a reasonable parallel with this case. In this case, the four point assessment went as follows:

• Purpose and Character: Parody is transformative, and even in a commercial context, parody is allowed
• Nature of work: No help here, "since a parody by its very nature would only be based upon an "expressive" work"
• Amount and Substantiality: The court cited a "conjure up" test. This "... would deny a finding of fair use under this factor only when the parodist "has appropriated a greater amount of the original work than is necessary to 'recall or conjure up' the object of the [parody]." Here is where this case and the one cited at Publaw differ most greatly, as in this case the copying (IMO) was excessive.
• Effect upon market: In the sample case, this element was remanded to the court for analysis. In this case, who knows, but there is at least a reasonable possibility of economic harm from a criticism site

When looking at parody as a defense against copyright infringement, there is no hard-and-fast rule. Each judge goes by their own individual imperitives (sense of humor or the absurd, headaches, whatever) in evaluating a parody "fair use" defense for copyright infringement. However, each case that I examined emphasized that the differences between the original and the parody had to be such that no actual confusion would exist. Additionally, most parody cases are ones where the parody looks similar, but does not contain actual copies of copyrighted material, unedited and unaltered.

This is not the case here.

Take a look at the PDF of thw parody, compared to the original (as part of the DMCA complaint, linked from the user's site). You will see that, unlike valid parodies, he copied directly, unaltered, the top graphic, bottom graphic, and side newsbar from the WalMart Foundation site. Only the two stories in the center of the page were different.

A direct copy is, indeed, de jure and de facto copyright infringement. If he had created parodies of these major page elements as well, Wal-Mart would (IMO) have no valid legal reason to complain. However, with the direct copy of more than 50% of the visible page? Personally, I think that's too much.

This is supported by this article at Publaw on parody and fair use. Specifically, part three of the Fair Use analysis, states:

The third factor analyzes the amount and substantiality of the copying in relation to the copyrighted work as a whole. The crucial determination is whether the quality and value of the material copied from the original copyrighted work is "reasonable" in relation to the purpose of copying. Regretfully, there is no black and white rule that sets forth an absolute ratio or quantity of words that may be used of the original work that would ensure a finding of fair use. Instead there have been circumstances where a court has found that the use of an entire work was fair use while under different circumstances the use of a small fraction of a work failed to qualify as a fair use. This factor not only evaluates the quantity that has been copied but also the quality and importance of the copied material. The courts when analyzing this factor evaluate whether the user of the original copyrighted material has taken any more of the original work than was necessary to achieve the purpose for which the material was copied from the original work.

I think that this student just made a mistake, but that mistake caused the creation of copyright infringement, rather than a valid parody. But that's just My Humble Opinion, and what do I know?

Yes, when I create a site that parodies people like you who post on slashdot (and the paranoid culture and driveling writing on slashdot), I can use the images from slashdot. I probably wouldn't do this, as you understood that you could be mistaken, but you were modded up to +3 informative while being mistaken.

I must note that this only applies in the US, as parody is protected here, whereas it is not in other countries. See PubLaw for a better description. (I found this by google BTW)

Everybody keeps saying this... you realize that parody has a fair-use exception under copyright law, right?

http://www.publaw.com/parody.html

If the guy used a domain that was only 1 character off from a legitimate Wal-Mart domain, and people could reasonably confuse his site with Wal-Mart's, that's another story.

If the Asimov estate sued, he'd just have to point them to the issue of Asimov's where Isaac himself stated that you can't copyright titles. Now, an argument could be made for trademarking titles in certain circumstances, but in general a title doesn't qualify for protection.

References:

• Copyright protection not available for names, titles, or short phrases
• Protection of literary titles

The question is what is the legal status of "The Bean"?

Judge for yourself.

From http://www.publaw.com/photo.html/

Photographs of Property

Although property does not enjoy a right to privacy or publicity that there are other bodies of the law that might prohibit or restrict the unauthorized use of a photograph containing property. These bodies of law may include among others contract, trademark, unfair competition, copyright and trespass law.

The guiding principle, that of course is muddled with exceptions, is that as long as a photograph of private property is taken while the photographer is on public property or on property that is open to the public then it is permissible to publish that photograph without permission from the owner of the property.

However, there are exceptions where it may be necessary or advisable to obtain permission from the owner of the property. These exceptions may include among others, a photograph of (i) artwork displayed in a museum, gallery or other location, (ii) a well-recognized product, such as a Harley-Davidson motorcycle, where the manufacturer has been litigious with respect to commercial uses of photographs containing their product, (iii) a building where the building design is protected by a federal trademark registration - recently there was litigation involving a photograph of the Rock and Rock Hall of Fame, (iv) a "famous" pet such as Lassie, (v) interiors of private buildings and (vi) personal property, such as their clothing or jewelry, that could identify an individual.

,i>I do not care what you believe, until there is a law that states otherwise, everyone owns your image when you are in public.

Hmm, maybe a law like the right of publicity or right of privacy? As a documentary filmmaker, you might be exempt from some of these laws under fair use and the first amendment, but saying that "everyone owns your image when you are in public" is just plain wrong.

DMCA applies only to cases whereby an encryption / obfuscation method was broken

No, that is not true. Have you actually RTF-Legislation? Perhaps you should take a peek at Digital Millenium Copyright Act of 1998, paying particular attention to Title II, where it establishes liability limits for service providers that follow the new rules. Among these rules is that the service provider "in the instance of a notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity."

So, under Title II of the DMCA, a service provider is not required to comply with a so-called DMCA infringment/takedown notice, but if it elects to ignore or defy such a request, the service provider looses its limited liability protection under DMCA.

Furthermore, if the mirrors are an accurate repesentation of the original parody site, IMHO CNN has a valid case regarding copyright infringement.

1. I don't know if you can consider this a commercial use: the author's site does sell advertising space, but does not charge specifically to view this parody.
2. The nature of the copyrighted work is the entire look, feel, layout and design of the CNN website, which certainly qualifies as a creative work as well as intellectual property.
3. The worst issue against the parody is that except for the article text itself, 100% of the page is copied directly from CNN.
4. This individual parody has nil effect on the value of CNN's copyrighted work. But the domino principal applies and the value of CNN's copyrights can become eroded, one parody at a time.

For those who do not already know (and from reading the comments above there appear to be many)

Parody (such as the star wars spoof in the article), along with quotation and review, are specifically enshrined as "fair use" in the copyright law of most countries.

Indeed even in the US, with arguably the worlds most restrictive copyright laws, the Supreme Court has reached the unequivocal conclusion that a parody falls within the scope of the "fair use" defense

Both parody and satire count as protected speech. The distinction's more because parody and satire cases have different precident cases backing them up, so the exact level of protection is different.

http://www.publaw.com/parody.html/

http://www.dfw.com/mld/startelegram/news/state/958 2196.htm?1c/

One of the most significant Satire related cases:

http://www.sexuality.org/l/wh/whfalwel.html/

The problem for satire cases right now may be seen in one recent case:

"Dr. Seuss Enterprises v. Penguin Books USA
Penguin Books published a poetic account of the O.J. Simpson trial in a book titled, The Cat NOT in the Hat! A Parody by Dr. Juice. The 9th Circuit held that the book did not parody The Cat in the Hat, but simply retold the Simpson story. Therefore, there was no fair-use defense, and the book was deemed a copyright infringement."

For source of this, see:

http://www.firstamendmentcenter.org/speech/librari es/topic.aspx?topic=parody_satire/

Note that case was originally a ruling on a Parody claim, but a lot of people seem to think the decision, as worded, has severe impact on Satire based claims. This whole issue will doubltless come up again in further cases, at least until the supremes issue a ruling as definitive as in Fallwell.

There was a lawsuit a while back that was settled out of court that may have some relevance to linking. However, in that case, it involved a website called TotalNEWS making stories from other websites appear like parts of its own pages using frames. News organisations like The Washington Post, The Wall Street Journal and CNN sued the site and forced them to stop linking to their own sites in a frames fashion. Since it was settled out of court, I presume it hasn't really set legal pecedence, but it did bring up some of the legal implications of linking.

From the first, fourth, and fourteenth amendments, specifically.

Though the "right to privacy" is not specifically enumerated in the Constitution, it is has been established as a Constitutional right and upheld as one numerous times by the Supreme Court.

Before I start, IANAL, but...

This is not a trademark infringement because they are not in the same industry. There is nothing in IP law as far as I know that says a person cannot make money using a parody. Parody is covered under fair use doctrine. The double-entendre signifies satire: fall is a verb, well is an adverb, they are constantly used in conjunction, and in its loose interpretation, it means that someone is very good at doing something very shitty. I don't know the author personally but I think that this was the desired effect, in which case this is clearly a pun, a satirical parody on the name, and is protected by IP law. This decision is wrong just as it would be wrong for Microsoft to shut down http://www.microsuck.com/ Please see http://www.publaw.com/parody.html

According to the article, "Lamparello's site criticizes Falwell's stance against homosexuality and includes a disclaimer that reads, 'This Web site is not affiliated with Jerry Falwell Ministries.'" This means that the decision that it would be confusing to visitors is a load of tripe. It is very clearly anti-Falwell and says there is no affiliation explicitly. If you would like to see the website, here's a snapshot from a year ago: http://web.archive.org/web/20030621061434/http://f allwell.com/ It was the latest one I could find.

This ruling is absolutely non-sensical and -- as far as I know -- without precedent.

This lawyer disagrees as does this site.

If it becomes generic, the trademark is unenforceable.

If it becomes generic, the trademark is unenforceable.

Aha, that was exactly what I needed to know...

I checked PubLaw for a definition of the Right of Publicity, which also mentions the Right of Privacy, which "protects an individual from the emotional anguish resulting from the publication of private facts that are embarrassing, intimate or portray someone in a false light that is highly offensive" -- originally, I was thinking more of the latter as being not really so important for dead guys (-:

Thanks again for setting me on the right trail.

Pixie

My driver is a parody of their driver. :-)

"Fair use" means much more than teachers running photocopiers.

However, if you only read the law text, you won't see fair use defined- that concept was added later by the court system. In the interpretation of judges, copyright law violated Constitutional right to free speech, so copyright cannot restrict materials from being "fairly used" for protected speech.

Parody is explicitly declared as a form of fair use in some legal decisions, like the Luther Campbell vs 2LiveCrew case.

Uh, no. Actually, they only have to get permission if they want to prevent any possible legal action down the road. For a good breakdown of the issues involved, a quick google turned up this.

As a side note, I recall (meaning I don't have a source to point to) a special on TV in which Al himself stated that he got permission because he didn't want to step on any toes, not because there was a legal reason for him to.

Besides, what's wrong with semantics? If we're talking about law, bigger issues than this have hinged on finer points. Lawyers love arguing semantics.

I don't particularly like semantics. I would say if there's one thing in particular that's wrong with the legal system, it's too much focus on semantics. I also don't like the way posters on /. like to pick apart a perfectly valid argument based on an irrelevant technicality.

That one is a subset of the other doesn't make them different in a meaningful way for this analysis, however. Particularly as it should be noted that GPLed works are atypical anyway, and thus neatly fall within your 'not typical' language above.

I think it does make a difference. My entire reason for starting this thread was to refute the OP's claim that the GPL is not a viral license. (No, I wasn't planning to get drawn into a pro-GPL debate where I get called a troll every 5 seconds.) Yes, copyright allows for viral licenses, but pretty much no one ever used them until the GPL came along. So I would say that there is a big difference between regular copyright and GPL.

Remember -- you said that using a work under the GPL was different than using the work "by permission or fair use." You have just admitted that that prior statement was wrong, by agreeing that the GPL is within the set of works used where "a copyright owner [grants] permission."

If your intent was to ensnare me in some kind of semantic trap by focusing on what I say rather than what I mean, then fine: you win. I still think it's relevant that if you exclude the GPL (and modern variations), 99% of copyright use by permission would be on non-viral terms.

No, that case is a typical one. Hell, it regularly appears in IP textbooks. Furthermore, it is a case that is AGAINST fair use -- Time was found to have infringed and was unable to offer a defense. Time _lost_.

I can't claim prior knowledge about this case, but I looked it up and you don't seem to remember the facts very well. It wasn't Time that got sued, it was The Nation. The courts gave four reasons for the decision, most notably that the quotes were taken from a stolen manuscript and that this caused financial damage to Time (who passed it on to Harper & Row). I recommend this excellent summary. The Nation acted unethically and they lost the case.

BTW, cases that are taught in law school are often "landmark decisions" rather than typical cases.

When you publish an essay that quotes a copyrighted work, you have comitted infringement. If that infringement is not judicially resolvable, with permission, or defensible e.g. under fair use, then you're fine.

Yippee, another semantic argument. I couldn't find any evidence to support your claim that fair use is still officially considered infringement or not. To me, it's about as exciting as arguing whether justifiable homocide is murder or not.

However, remember: no one made you have to seek out _that_ particular work, nor infringe upon it in the first place.

No comment... this is too much of a rathole.

If GPLed software is that dangerous to you, and you are unable to use it by any other means, then I suggest that you simply don't use it.

I don't know where you got the idea that GPL'ed software is dangerous to me; I use it all the time. I merely said that it was a viral license. The GPL is dangerous to my career, but I'm not going to solve that problem by refusing to use it. I merely use GPL'ed software without contributing anything back, which I am perfectly entitled to do under the license.

-a