... though you should take anything I say as general information rather than advice specific to your issue.
The DMCA safe harbor provision is intended to cover user-generated content posted to your website by a third party. The idea is that you, as a website operator, should not responsible for someone else's conduct so long as you take it down.
There is also case law (Lenz v. Universal) out of a California District Court holding that a copyright owner has an obligation to consider whether or not a particular use of its work is fair use *prior to sending a DMCA takedown notice,* and that failing to do so could constitute bad faith abuse of the DMCA.
Sending a counter-notice, as you appear to have done, is definitely a good way to go especially if you believe that the reproduction of approximately 13 percent of the MMPI constitutes fair use. However, you seem to be in an odd situation. The normal case is for the website operator (you) to take down the post and notify the original author (the user). Then the user decides whether to file a counter-notice.
That being said, whether or not copying the questions constitutes fair use depends largely on a few things, which are embodied in the four-factor test that someone has surely mentioned in a post by now.
As a practical matter, it's all about context. Did you do anything other than just posting the questions? Showing that you used the questions as part of a larger work where you contributed your own thoughts and expression would make your fair use argument stronger (it's not copyright infringement - it's citation!). If all you did was copy the questions and post them without much of what courts call "transformative" use (i.e. creative input on your part), then that weakens your argument.
Looking at the Google Cache of the original post, it seems to consist of a brief introduction:
"I have done quite a bit of research on the MMPI 2 used by psychological testing. Here's the first 75 out of 567 questions. I could give out rest of them & how some of them are interpeted by psychologists for advice on admitting past history on the psych & medical tests. See my post on "Help with Admissions for Psych & Medial""
And then the rest is the questions. So the issue is whether or not the user-contributed content is enough.
As an attorney, I'm extremely concerned about any solution to this problem that advocates telling technology developers that they have to implement technology measures in order to insulate themselves from secondary infringement liability, which is the big issue in Grokster.
The issue isn't P2P itself. As many have said, the technology is perfectly legal and extremely useful. The issue is what bad actors are doing with P2P.
Both the technology sector and the content industry have to realize that there is an often-blurry but extremely important distinction between the two, and I think that the authors of this brief are missing that.
When they talk about things like requiring Grokster to help prevent infringement, they are talking about placing the content industry in control over technological innovation. If a new technology or service has the ability to infringe copyrights, then imposing a kind of duty like will essentially give Hollywood and the music industry oversight over the development of technology.
The MPAA already wants to be able to monitor Internet 2 for illegal movie trading. Do you want the RIAA to force Wi-Max providers to include IP sniffers at all their towers to monitor users to try and track copyright infringement?
Do you want to see recording executives telling software developers what the next versions of Windows, MacOSX, or Linux are going to have to do in order to satisfy this duty to help prevent infringement?
In addition to being content neutral, any solution to this problem has also got to be technology neutral. It's not the device that infringes. It's what you do with it. Target the business model, not the device that enables it.
The thing about the patent system is that you probabably won't ever have to. Patent litigation is extremely expensive. Most people just cave in, even if they have a good defense, because they just can't afford to protect themselves.
The problem is that the patent office is staffed by human beings who have to make sure that every application is sufficiently new. Naturally, they miss things. Especially with IT patents. There isn't enough manpower to do a really effective prior art search.
This is how you get stupid patents. The examiners try to find prior art, and they don't. So they assume it's new, even if someone has been using it on the internet for years.
I think the answer to this is pretty simple. The US already publishes patent applications after a certain amount of time. I think the PTO should go a step further and do what other federal agencies do when they are about to enact a regulation - they publish it an invite comments.
Maybe the PTO should subject pending patent applications to a public comment period, in which other people can submit examples of prior art to show that the patent application is either not new or obvious. If it happened, you'd have public interest groups like the EFF monitoring patent applications as they get published and finding the prior art that the PTO misses.
Actually... that's a good point. If the republicans circumvented a technological access control (read "password") they are liable for a DMCA violation, notwithstanding the fact that US government documents are not copyrightable. All this thanks to the DeCSS court's ruling that the right to control access isn't limited to instances when use of the protected material would be copyright infringement.
As naive as Jsutice Ginsburg's opinion is, it's not surprising. This is one of those cases where the Court decided to put on its legal blinders and focus on the language of the law rather than open its eyes and look at the reality of the situation.
The court's analysis goes something like this:
The Constitution provides for limited copyright and patent terms.
A term that prescribes a specific number of years (like life + 70) is a limited term.
Congress has repeatedly extended both copyright and patent terms in the past.
An extended term that is still discreetly defined is still a limited term.
Congress can extend terms all it wants, so long as there remains, at least on paper, a definite cutoff point.
The flaw isn't with the Court's logic, but with the Constitution itself. The framers never contemplated that the patent and copyright system would ever get used the way it has been. Legally, the court's decision is perfectly accurate.
As a matter of policy, it means that copyright terms last as long as large corporations can pay for them to be extended.
For starters, IAAL, finally. You're not exactly right. The 95 year duration is based on corporate authors, mainly because coporations don't "die."
A copyright in a work created by a real person, after 1978, lasts for the duration of that person's life plus 70 years. Authors who have assigned their copyrights to someone else have the right (which cannot be waived) to terminate the transfer after 35 years or so. This was supposed to address the fact that a publisher takes a risk on an author - will the book/CD/whatever tank, or will it do well? Most published works lose money for the publisher. The few that don't recoup those losses and then some, both for the author and the publisher. Ask JK Rowling about that. The termination provisions allow authors, or their heirs, to take back their rights and exercise control over those works with real staying power.
Is it perfect? Not hardly. But things like this represent something - copyright law is still about finding a balance. If you think about it, what we have is a result of the voices that speak loudest. Maybe it's the result of a representative democratic system. Congressmen get angry when the industry makes a fool of them, but generally, they have a very hard path to tread.
Well, it sounds to me like you have a couple of good contract based defenses. While IANAL just yet, and I haven't actually taken a look at your employment contract or the IP rights contract, you are probably alright, regardless of whether or not your company tries to bully you. Generally speaking, when a company tries to crush an employee on some ground like "he's stealing our trade secrets" (which often happens in cases like yours) courts are very employee-friendly. Based on what the contracts say, a court may severely curtail the scope of any provisions you signed regarding the company's ability to prevent you from practicing your particular profession, or it may simply find such a provision completely unenforceable. Here's a good quote from the New York Court of Appeals: "Therefore, no restrictions should fetter an employee's right to apply to his own best advantage the skills and knowledge acquired by the overall experience of his previous employment. This includes those techniques which are but skillful variations of the general processes known to the particular trade." (Reed Roberts Assoc. v. Strauman) This case dealt mainly with a company's attempt to stop an ex-employee from practicing in his field of expertise on some kind of "misappropriation of trade secrets" ground, which the court pretty much rejected. However, courts do sometimes enforce noncompetition agreements (i.e. I, employee, agree not to compete with employer for 12 months after I leave my job) if the terms are reasonable an don't unduly burden your ability to make a living in your chosen field. Basically, this really is less of an IP dispute than a labor law dispute. I suggest talking to an attorney and showing him exactly what you have signed and so on. Doesn't have to be an IP lawyer, though. This has less to do with patents, copyrights, and trademarks than with the terms and enforceability of the contracts you signed.
First of all, IANAL yet. That comes in May when I get my degree.
Mr. Hart is partially correct when he mentions that copyrights run for 95 years as of the 1998 Copyright Term Extension Act. That applies to 1) anonymous works and 2) works where a corporate entity is the author (i.e. works made by employees in the course of their jobs).
In reality, the term of a copyright runs for the lifetime of the author plus 70 years. Does this sound unreasonable?
You bet. Mr. Hart is right. Copyright law is driven less by a desire to promote creativity and more by a desire to increase the profits of content providers. The main reason the 1998 Term Extension Act was passed was to prevent valuable copyrights like, oh, Mickey Mouse, from passing into the public domain.
Just for everyone's information, the Eldred v. Reno case Mr. Hart mentions was a suit brought by Eldred Press against the government challenging the constitutionality of the Term Extension Act. Eldred was gearing up to republish a bunch of books that were about to hit the public domain, and was pretty much screwed when the Act retroactively extended the terms of their copyrights. The court ruled, rather narrowly (fortunately), that doing so was within the power of Congress under the Constitution. That doesn't mean it was proper, only permissible.
There is a bright side to the Copyright term, however. The author of a work (or his heirs) can "recapture" his copyright after 35 years by notifying the copyright office of his intent to do so. This allows people whose works have really withstood the test of time to take the right to their work back from the industry and get a better deal for themselves. Does this put more stuff into the public domain? No. Does it give authors of really popular works some protection from one-sided publishing contracts? Fortunately, yes.
Slashdot Mirror
... though you should take anything I say as general information rather than advice specific to your issue.
The DMCA safe harbor provision is intended to cover user-generated content posted to your website by a third party. The idea is that you, as a website operator, should not responsible for someone else's conduct so long as you take it down.
There is also case law (Lenz v. Universal) out of a California District Court holding that a copyright owner has an obligation to consider whether or not a particular use of its work is fair use *prior to sending a DMCA takedown notice,* and that failing to do so could constitute bad faith abuse of the DMCA.
Sending a counter-notice, as you appear to have done, is definitely a good way to go especially if you believe that the reproduction of approximately 13 percent of the MMPI constitutes fair use. However, you seem to be in an odd situation. The normal case is for the website operator (you) to take down the post and notify the original author (the user). Then the user decides whether to file a counter-notice.
That being said, whether or not copying the questions constitutes fair use depends largely on a few things, which are embodied in the four-factor test that someone has surely mentioned in a post by now.
As a practical matter, it's all about context. Did you do anything other than just posting the questions? Showing that you used the questions as part of a larger work where you contributed your own thoughts and expression would make your fair use argument stronger (it's not copyright infringement - it's citation!). If all you did was copy the questions and post them without much of what courts call "transformative" use (i.e. creative input on your part), then that weakens your argument.
Looking at the Google Cache of the original post, it seems to consist of a brief introduction:
"I have done quite a bit of research on the MMPI 2 used by psychological testing. Here's the first 75 out of 567 questions. I could give out rest of them & how some of them are interpeted by psychologists for advice on admitting past history on the psych & medical tests. See my post on "Help with Admissions for Psych & Medial""
And then the rest is the questions. So the issue is whether or not the user-contributed content is enough.
As an attorney, I'm extremely concerned about any solution to this problem that advocates telling technology developers that they have to implement technology measures in order to insulate themselves from secondary infringement liability, which is the big issue in Grokster.
The issue isn't P2P itself. As many have said, the technology is perfectly legal and extremely useful. The issue is what bad actors are doing with P2P.
Both the technology sector and the content industry have to realize that there is an often-blurry but extremely important distinction between the two, and I think that the authors of this brief are missing that.
When they talk about things like requiring Grokster to help prevent infringement, they are talking about placing the content industry in control over technological innovation. If a new technology or service has the ability to infringe copyrights, then imposing a kind of duty like will essentially give Hollywood and the music industry oversight over the development of technology.
The MPAA already wants to be able to monitor Internet 2 for illegal movie trading. Do you want the RIAA to force Wi-Max providers to include IP sniffers at all their towers to monitor users to try and track copyright infringement?
Do you want to see recording executives telling software developers what the next versions of Windows, MacOSX, or Linux are going to have to do in order to satisfy this duty to help prevent infringement?
In addition to being content neutral, any solution to this problem has also got to be technology neutral. It's not the device that infringes. It's what you do with it. Target the business model, not the device that enables it.
Yeah... I wrote it. Go me!
The thing about the patent system is that you probabably won't ever have to. Patent litigation is extremely expensive. Most people just cave in, even if they have a good defense, because they just can't afford to protect themselves.
The problem is that the patent office is staffed by human beings who have to make sure that every application is sufficiently new. Naturally, they miss things. Especially with IT patents. There isn't enough manpower to do a really effective prior art search.
This is how you get stupid patents. The examiners try to find prior art, and they don't. So they assume it's new, even if someone has been using it on the internet for years.
I think the answer to this is pretty simple. The US already publishes patent applications after a certain amount of time. I think the PTO should go a step further and do what other federal agencies do when they are about to enact a regulation - they publish it an invite comments.
Maybe the PTO should subject pending patent applications to a public comment period, in which other people can submit examples of prior art to show that the patent application is either not new or obvious. If it happened, you'd have public interest groups like the EFF monitoring patent applications as they get published and finding the prior art that the PTO misses.
Actually... that's a good point. If the republicans circumvented a technological access control (read "password") they are liable for a DMCA violation, notwithstanding the fact that US government documents are not copyrightable. All this thanks to the DeCSS court's ruling that the right to control access isn't limited to instances when use of the protected material would be copyright infringement.
As naive as Jsutice Ginsburg's opinion is, it's not surprising. This is one of those cases where the Court decided to put on its legal blinders and focus on the language of the law rather than open its eyes and look at the reality of the situation.
The court's analysis goes something like this:
The Constitution provides for limited copyright and patent terms.
A term that prescribes a specific number of years (like life + 70) is a limited term.
Congress has repeatedly extended both copyright and patent terms in the past.
An extended term that is still discreetly defined is still a limited term.
Congress can extend terms all it wants, so long as there remains, at least on paper, a definite cutoff point.
The flaw isn't with the Court's logic, but with the Constitution itself. The framers never contemplated that the patent and copyright system would ever get used the way it has been. Legally, the court's decision is perfectly accurate.
As a matter of policy, it means that copyright terms last as long as large corporations can pay for them to be extended.
A copyright in a work created by a real person, after 1978, lasts for the duration of that person's life plus 70 years. Authors who have assigned their copyrights to someone else have the right (which cannot be waived) to terminate the transfer after 35 years or so. This was supposed to address the fact that a publisher takes a risk on an author - will the book/CD/whatever tank, or will it do well? Most published works lose money for the publisher. The few that don't recoup those losses and then some, both for the author and the publisher. Ask JK Rowling about that. The termination provisions allow authors, or their heirs, to take back their rights and exercise control over those works with real staying power.
Is it perfect? Not hardly. But things like this represent something - copyright law is still about finding a balance. If you think about it, what we have is a result of the voices that speak loudest. Maybe it's the result of a representative democratic system. Congressmen get angry when the industry makes a fool of them, but generally, they have a very hard path to tread.
Well, it sounds to me like you have a couple of good contract based defenses. While IANAL just yet, and I haven't actually taken a look at your employment contract or the IP rights contract, you are probably alright, regardless of whether or not your company tries to bully you. Generally speaking, when a company tries to crush an employee on some ground like "he's stealing our trade secrets" (which often happens in cases like yours) courts are very employee-friendly. Based on what the contracts say, a court may severely curtail the scope of any provisions you signed regarding the company's ability to prevent you from practicing your particular profession, or it may simply find such a provision completely unenforceable. Here's a good quote from the New York Court of Appeals: "Therefore, no restrictions should fetter an employee's right to apply to his own best advantage the skills and knowledge acquired by the overall experience of his previous employment. This includes those techniques which are but skillful variations of the general processes known to the particular trade." (Reed Roberts Assoc. v. Strauman) This case dealt mainly with a company's attempt to stop an ex-employee from practicing in his field of expertise on some kind of "misappropriation of trade secrets" ground, which the court pretty much rejected. However, courts do sometimes enforce noncompetition agreements (i.e. I, employee, agree not to compete with employer for 12 months after I leave my job) if the terms are reasonable an don't unduly burden your ability to make a living in your chosen field. Basically, this really is less of an IP dispute than a labor law dispute. I suggest talking to an attorney and showing him exactly what you have signed and so on. Doesn't have to be an IP lawyer, though. This has less to do with patents, copyrights, and trademarks than with the terms and enforceability of the contracts you signed.
First of all, IANAL yet. That comes in May when I get my degree. Mr. Hart is partially correct when he mentions that copyrights run for 95 years as of the 1998 Copyright Term Extension Act. That applies to 1) anonymous works and 2) works where a corporate entity is the author (i.e. works made by employees in the course of their jobs). In reality, the term of a copyright runs for the lifetime of the author plus 70 years. Does this sound unreasonable? You bet. Mr. Hart is right. Copyright law is driven less by a desire to promote creativity and more by a desire to increase the profits of content providers. The main reason the 1998 Term Extension Act was passed was to prevent valuable copyrights like, oh, Mickey Mouse, from passing into the public domain. Just for everyone's information, the Eldred v. Reno case Mr. Hart mentions was a suit brought by Eldred Press against the government challenging the constitutionality of the Term Extension Act. Eldred was gearing up to republish a bunch of books that were about to hit the public domain, and was pretty much screwed when the Act retroactively extended the terms of their copyrights. The court ruled, rather narrowly (fortunately), that doing so was within the power of Congress under the Constitution. That doesn't mean it was proper, only permissible. There is a bright side to the Copyright term, however. The author of a work (or his heirs) can "recapture" his copyright after 35 years by notifying the copyright office of his intent to do so. This allows people whose works have really withstood the test of time to take the right to their work back from the industry and get a better deal for themselves. Does this put more stuff into the public domain? No. Does it give authors of really popular works some protection from one-sided publishing contracts? Fortunately, yes.