The balance between copyright and fair use.



  • I'm curious where this balance actually lies and whether it needs to shift.

    I understand both sides of an argument, but my understanding of fair use has always been a little simpler.

    If someone is going to view the copy as an alternative to get the full experience of the original content, it is not fair use.

    Like, if I videotaped my daughter dancing to Frozen, it's fair use, because the movie is probably not going to be in full view, and definitely not in its entirety, but even that's not important. The question I would ask,

    Would the average person reasonably and purposefully view my upload instead of the original content expecting the full experience?

    This is where it gets a little unfair to copyright holders because someone can claim that a video recording from a low quality camera of a movie theater presentation fits within that definition of fair use, because it's no where near good quality, and it's a screen of a screen, with all of the video and audio deterioration.

    This of course, shifts the burden of proof to the content owners, and purposefully so.


    So, my question for the forum.

    How do others personally see fair use and copyright?





  • Yes, that's pretty much it, in it's current form.

    But I think it needs to be made stronger.

    Companies are supposed to check for fair use before they take action.

    I think companies should have to prove that the upload is not fair use.

    But then I'm struggling with size of a company. If I say, a really big company can afford to defend their work, then I'm buying into progressive logic, and not actually sticking to rights and laws. You see, the balance of rights can't shift because of an entity's size or power, because either side of the situation can be larger than the other at any given situation.

    The problem is that big companies can devote more power to protecting their work, and they do. So the current laws are not balanced for that situation.

    But you can reverse it, and have big companies straight up steal original content from an upload, and the uploader isn't big enough to protect themselves.

    So, neither side is adequately protected with the current laws.

    (For example, major networks on Youtube creating react videos where the entire original upload is silently viewed then commented on is breaking fair use).



  • The fair use thing is dumb. The focus should be on lowering copyright terms.

    If you create an X, I'm sorry, you shouldn't get paid for X for your ENTIRE LIFETIME than also have like 75 years of your ancestors also being paid for X. It's ludicrous. If the span of copyright were reasonable, most fair use questions would simply dissolve away.


  • Impossible Mission Players - A

    @blakeyrat said:

    ENTIRE LIFETIME

    Thanks Disney for being the great proponent of this, right?



  • I think part of the problem is copyright covers several forms of expression that aren't equivalent.

    IE: Musicians own the copyright of their performance(auditory work, split equally) but they don't own the copyright to the sheet music(written work) they use; assuming they didn't write the piece.

    I don't know if refining copyright based on the nature of the work would improve things because it can get dicey when you mix the expression form. IE: Video + Audio + Scrolling Text.

    The only way I can currently think of to punish bad-faith DMCAs is that anytime a counter-claim is filed a copy of the work in question and the claim paperwork is forwarded to the FBI. However that gets into Big Government vs Small Government yada yada and I don't want to turn this into a :fire: war 4 posts in.



  • @xaade said:

    Would the average person reasonably and purposefully view my upload instead of the original content expecting the full experience?

    Is a cover performance of a song fair use with respect to the original performer? The composer?

    Is an MP3 upload of a song from a CD fair use? A 2.0 downmix of a 5.1 song? A 2D version of a 3D movie?

    Is a let's play video of a game fair use? What if the game is a visual novel where gameplay is not a major factor?

    Is a scene-by-scene video review of a movie fair use? What about a review which contains only key scenes?

    Are Cliff's Notes versions of books fair use? Transcripts of videos? Lyrics of songs?

    The answer to your question depends very much on the definition of the "average person".



  • Except if you were doing a critique, review, or if you showed a part of the preview during the news.



  • @blakeyrat said:

    If the span of copyright were reasonable, most fair use questions would simply dissolve away.

    While I agree with the general sentiment that copyright period lasts way too long, I'm not sure it's related to fair use all that much. Things like let's plays, reviews or parodies are generally concerned with current material, not games, movies and songs from enough years ago for the copyright expiry to be reasonable.



  • @Maciejasjmj said:

    Is a cover performance of a song fair use with respect to the original performer? The composer?

    This is why applying copyright to the music itself as an idea is stupid. You'd need another concept to protect that. I do not believe copyright should apply to the concept of the music. To the production itself, yes. I should not be able to distribute a live performance of anyone else without permission. But if I sang a cover to a song, it should not be protected by copyright.

    @Maciejasjmj said:

    Is an MP3 upload of a song from a CD fair use? A 2.0 downmix of a 5.1 song? A 2D version of a 3D movie?

    Again, copyrighting audio makes little sense to me.

    It works fine for literature.

    As for your actual question, should a 5.1 recording be protected from being copied as a 2.0 recording, I would personally say yes.

    I don't know how to qualify the difference between a transition of the recording, and a recording of a recording where the original is distorted beyond enjoyable quality to where it can't replace the original work.

    If someone dude is recording a movie in a theater and the sound is choppy and the camera is shaking, I can hardly say that I expect anyone to have been willing to pay for the full experience. So I find it hard to believe that the original content owner has lost anything of value. (and that's one of the points of fair use in the current law).

    @Maciejasjmj said:

    Is a let's play video of a game fair use? What if the game is a visual novel where gameplay is not a major factor?

    This is where I get into problems.

    In spirit of the law, I'd like to say that the value of a let's play of a visual novel is not substantially altered from the original. You get practically the full experience.

    But for other video games, especially dynamic ones where player's choice impacts the gameplay substantially, then absolutely fair use.

    But, "substantially" in law is leaving that door wide open for interpretation.

    @Maciejasjmj said:

    Is a scene-by-scene video review of a movie fair use? What about a review which contains only key scenes?

    IMO

    No and Yes.

    @Maciejasjmj said:

    Are Cliff's Notes versions of books fair use?

    Yes.

    You can buy both the cliff notes and the book. It's no different than asking me for notes from class.

    @Maciejasjmj said:

    Transcripts of videos? Lyrics of songs?

    Those would be copyrighted separately, producing a different but related original work.



  • They're not the ONLY ones, but they're the ones with the most lobbyists.



  • @Maciejasjmj said:

    Is a cover performance of a song fair use with respect to the original performer? The composer?

    To my knowledge, it was never taken to court so far.

    @Maciejasjmj said:

    Is an MP3 upload of a song from a CD fair use? A 2.0 downmix of a 5.1 song?

    I'm pretty sure it's straight forward no.

    @Maciejasjmj said:

    A 2D version of a 3D movie?

    Considering almost all 3D movies have 2D versions too...

    @Maciejasjmj said:

    Is a let's play video of a game fair use?

    I'm pretty sure it is, at least according to Google. CBA to find citation though.

    @Maciejasjmj said:

    Is a scene-by-scene video review of a movie fair use? What about a review which contains only key scenes?

    Yes and yes. Reviews are the reason why fair use was created at all.

    @Maciejasjmj said:

    Are Cliff's Notes versions of books fair use?

    I have no idea.

    @Maciejasjmj said:

    Transcripts of videos?

    Well, there's been at least one subtitles website that got shut down...

    @Maciejasjmj said:

    Lyrics of songs?

    ...but never heard of those.

    I think you've got to the heart of the issue - fair use is so ill-defined that there is no way to give a definite answer to any of those questions (except the reviews ones). So what is needed is having fair use specified more clearly. After it's clearly defined, then we can discuss whether it's too permissive or too restrictive.



  • @xaade said:

    But for other video games, especially dynamic ones where player's choice impacts the gameplay substantially, then absolutely fair use.

    That's kind of where I become unsure. A game like Smash Bros, which is all gameplay, wouldn't make me feel too bad about doing a lets play. Pokemon? Probably that too, since the story is minimal, and someone making an interesting lets play would mostly be doing things unrelated to it (though I certainly wouldnt enjoy watching it). But it depends on the game. I'd kind of like to make a lets play of Megaman Battle Network 3. It has interesting gameplay that has more variation than most RPGs by a landslide, but there's no real branching other than what deck you play or when you decide to go looking for chips in a particular location.

    I don't know. I don't think it'll ever be an easy problem. On the bright side, all the battle network games are on Wii U, so maybe I could just somehow promote people to buy them? I could just do some kind of gameplay analysis or something...



  • @Gaska said:

    So what is needed is having fair use specified more clearly.

    Problem is, for effectively any definition that isn't "should be decided on a case-by-case basis" there's a loophole to either trample all over the copyright, or slap people with obviously unfair takedown notices.

    Allow fair use for reviews? Sure, here's two hours of a DVD-rip of a movie and me saying "yeah, it was good" in the last five seconds. Disallow let's plays of visual novels? John Doe is now dragged to courts for posting a home video of his kid playing on 3DS on YouTube because the game on screen was Phoenix Wright.



  • Is it fair use to play a video game and then release the recording of you playing the video game?

    How about if the recording includes a large amount of cutscene content?



  • @ben_lubar said:

    Is it fair use to play a video game and then release the recording of you playing the video game?

    How about if the recording includes a large amount of cutscene content?

    Probably maybe somewhat, but most likely no. However, it could be like the Disney thing I posted that say, chopped up a bunch of Square-Enix cut-scenes to make an educational point.





  • @Magus said:

    I don't know. I don't think it'll ever be an easy problem. On the bright side, all the battle network games are on Wii U, so maybe I could just somehow promote people to buy them? I could just do some kind of gameplay analysis or something...

    From the game reviewers I watch, Nintendo has made plenty of complaints.

    @Maciejasjmj said:

    "should be decided on a case-by-case basis"

    That's the ideal, really.

    @Maciejasjmj said:

    dragged to courts

    Criminal/Civil court should be the last route of resolving the issue.

    Unfortunately, when it comes to income already made, it's often the only avenue.

    Which is why DMCA and safe harbor are there to keep content hosts from being slapped with lawsuits.

    @ben_lubar said:

    Is it fair use to play a video game and then release the recording of you playing the video game?

    How about if the recording includes a large amount of cutscene content?

    What if it's never released.

    Technically you copied it, even if it's not publicly distributed.



  • @xaade said:

    Technically you copied it, even if it's not publicly distributed.

    I have a friend who wanted to run Mac OS but also wanted to use his own hardware. So he bought a Mac and then gutted it and put new components in and installed Mac OS.

    Is it a hackintosh or a Mac?



  • @Maciejasjmj said:

    Problem is, for effectively any definition that isn't "should be decided on a case-by-case basis" there's a loophole to either trample all over the copyright, or slap people with obviously unfair takedown notices.

    And "should be decided on a case-by-case basis" has the obvious flaw of there effectively being no fair use at all until the author of derived work got the ride through court.

    @Maciejasjmj said:

    Allow fair use for reviews? Sure, here's two hours of a DVD-rip of a movie and me saying "yeah, it was good" in the last five seconds.

    Disallow fair use for reviews? Sure, let's sue every single review site for posting screenshots picturing what they're talking about!

    Again - it needs to be clarified what qualifies as a review and what doesn't.

    @Maciejasjmj said:

    Disallow let's plays of visual novels? John Doe is now dragged to courts for posting a home video of his kid playing on 3DS on YouTube because the game on screen was Phoenix Wright.

    Is it bad?



  • @xaade said:

    What if it's never released.

    Technically you copied it, even if it's not publicly distributed.


    In Poland, copying is perfectly legal.



  • @ben_lubar said:

    I have a friend who wanted to run Mac OS but also wanted to use his own hardware. So he bought a Mac and then gutted it and put new components in and installed Mac OS.

    Is it a hackintosh or a Mac?


    Maybe ask Theseus?


  • Discourse touched me in a no-no place

    @MathNerdCNU said:

    The only way I can currently think of to punish bad-faith DMCAs is that anytime a counter-claim is filed a copy of the work in question and the claim paperwork is forwarded to the FBI. However that gets into Big Government vs Small Government yada yada and I don't want to turn this into a :fire: war 4 posts in.

    The big problem you've got there is that copyright is inherently a thing granted by government. (Without government, the base natural right is to copy. Non-jerks would do it with attribution.) That means that any problems with enforcement of the current copyright regime will tend to have the government involved; in the US, that means the Feds because of how you're set up.



  • Well, the problem is DMCA takedowns.

    There are no penalties for being wrong, but there are financial penalties for being targeted by it.

    The problem is that the only real way you can get that income back is to sue.

    There needs to be a non-court involved penalty for a frivolously filed takedown.

    I'm thinking, have a legal company set up a subscription service to an ongoing class-action lawsuit. Kind of like identity protection services.

    The legal company can even keep the rewards. You just pay a subscription to have them bring a big bat to any company that wrongfully files.

    Once the dust clears, big producers will start behaving.



  • @xaade said:

    From the game reviewers I watch, Nintendo has made plenty of complaints.

    Nintendo is one of those companies that hates bad reviews, and to some extent reviews in general. But at the same time, it is completely inconceivable that I could give a bad review for what I consider to be the greatest masterpiece in the history of gaming. Not that anyone would watch it even if I did.



  • @Magus said:

    Nintendo is one of those companies that hates bad reviews, and to some extent reviews in general.

    Copyright isn't for censorship.

    @Magus said:

    that I could give a bad review for what I consider to be the greatest masterpiece in the history of gaming

    They've had quite a few duds. It's just that their best games seem to appeal to the widest demographic, and are the types of games that no one cares to say anything bad about if they don't like the genre.



  • @xaade said:

    Copyright isn't for censorship.

    Right, but that isn't how they see it. They're crazy.

    @xaade said:

    They've had quite a few duds. It's just that their best games seem to appeal to the widest demographic, and are the types of games that no one cares to say anything bad about if they don't like the genre.

    What are you on about? None of that has anything to do with anything I said. Seriously, go buy Battle Network 3. It's not even made by them, it's by Capcom. Go!



  • @Magus said:

    Battle Network

    Is 3 the best one?



  • @xaade said:

    Is 3 the best one?

    If by 'one' you mean 'game ever made'!



  • Copyright is legalized theft.



  • @anotherusername said:

    Copyright is legalized theft.

    ???

    I suppose you could see it as, it allows someone to own an idea.



  • Originally, there was no such thing as "fair use" because all use was fair, and if you wanted to keep information to yourself, you had to keep it secret.

    Copyright was invented because people threatened to quit making creative stuff if they couldn't own it forever and continue reaping profits from it in perpetuity. So a compromise was made: they'd keep producing information, and they could enjoy sole profits from it for a limited time, and then it would belong to everyone.

    Disney et al have turned it into perpetuity, so the original compromise is gone and all that's left is theft.



  • @xaade said:

    it allows someone to own an idea.

    That falls under patent law. Copyright covers more expressive output.

    @anotherusername said:

    Copyright was invented because people threatened to quit making creative stuff if they couldn't own it forever

    Maybe but my gut tells me it was more about quitting if people could just copy it, preventing the owner from realizing compensation for the work.

    That ASP.Net book sells for $40 but in a few years it will be worthless. Although there are exceptions, most works lose significant value in a relatively short time.



  • @brianw13a said:

    Maybe but my gut tells me it was more about quitting if people could just copy it, preventing the owner from realizing compensation for the work.

    Regardless, it's since become what amounts to perpetual ownership.

    @brianw13a said:

    That ASP.Net book sells for $40 but in a few years it will be worthless. Although there are exceptions, most works lose significant value in a relatively short time.

    Those exceptions are the whole point. They're what we were supposed to get in exchange for the protection that the authors got.



  • Then have the law changed. Copyright itself isn't the problem.



  • @brianw13a said:

    Copyright itself isn't the problem.

    Copyright wasn't a problem. Now it is, because it's being used to perpetually yank away what had been promised was coming to us.

    @brianw13a said:

    Then have the law changed.

    It has been. People with deep pockets seem to have a monopoly on having it changed, and it always seems to change in their favor. Without so much as a fake-apologetic, "I am altering the deal. Pray I don't alter it any further."



  • @anotherusername said:

    Copyright wasn't a problem

    And it still isn't but the implementation may be. There's a difference.



  • What you're talking about doesn't exist. I'm talking about the thing that exists.

    If you want to turn the thing you're talking about back into a thing that really exists, then that's great, but you and I alone aren't going to make that happen. Although we certainly can try.



  • I'm talking about copyright as a concept. When I see statements like:

    @anotherusername said:

    Copyright is legalized theft.

    I tend to think the author doesn't believe in the concept of copyright rather than some aspect of it's implementation. I happen to think copyright is very important to innovation and expression so I take issue with the idea that it's bad because society has to wait a while before the work enters the public domain.



  • @brianw13a said:

    I'm talking about Copyright as a concept.

    I noticed.

    @brianw13a said:

    I take issue with the idea that it's bad because society has to wait a while before the work enters the public domain.

    No, it's bad because the copyright holders are permitted to continue altering it to ensure that their most profitable goldmines never enter the public domain.



  • So if copyright law protected a work for 1 year, copyright would still be bad?



  • @anotherusername said:

    No, it's bad because the copyright holders are permitted to continue altering it to ensure that their most profitable goldmines never enter the public domain.

    Best example : Mickey Mouse, having first appeared in 1928, should go into public domain on January 1, 2024.

    I said should because Disney will certainly rewriteask for the law to extend it, again.



  • No. Are you intentionally missing the point? Copyright wasn't even bad as it was originally written. The bad part is that they've changed it.

    In the 1909 copyright act, every copyrighted work was guaranteed to become public domain after a term of not more than 56 years maximum (one 28-year term, and if renewed, a 28-year renewal term). 56 years gave the author a nice, long while to rake in the profits for their hard work, and after that, if there was any value left in it, then it was supposed to belong to everyone.

    But a few rich and powerful copyright holders realized that their most successful works still had value, and if they could get the law changed, they could be the sole beneficiaries of this enduring value for a while longer. So, in 1976, the law was amended so works could be protected for a maximum of 75 years (one 28-year term, and if renewed, a 47-year renewal term).

    Then in 1998, it was amended again so works could be protected from becoming public domain for a maximum of 95 years (one 28-year term, and if renewed, a 67-year renewal term).

    We're about due for another extension, actually. They have no intention of letting us catch the carrot.



  • To some extent though, it makes sense for some things to get extended. Sure, companies throw away their logos every month or two these days, but things like mascots seem like they really ought to stay on the things they exist to symbolize.



  • @anotherusername said:

    We're about due for another extension, actually.

    And it's easy to know when, just before Mickey Mouse goes into public domain :wink:



  • @Magus said:

    To some extent though, it makes sense for some things to get extended.

    Why? If copyright guaranteed both protection to the author for a limited time, and that the public would get the copyrighted work after that term had expired, then extending its term of copyright is denying the public what it's due.

    @Magus said:

    things like mascots seem like they really ought to stay on the things they exist to symbolize

    Now you're getting into the realm of trademarks; those can be held forever, but you have to vigilantly protect them to keep them.



  • Right, yes, that makes more sense.



  • @anotherusername said:

    Copyright was invented because people threatened to quit making creative stuff if they couldn't own it forever and continue reaping profits from it in perpetuity. So a compromise was made: they'd keep producing information, and they could enjoy sole profits from it for a limited time, and then it would belong to everyone.

    Are you sure you aren't talking about patents here?



  • @TimeBandit said:

    Best example : Mickey Mouse, having first appeared in 1928, should go into public domain on January 1, 2024.

    Yeah, right. Like Mickey Mouse is ever going into the public domain.

    Filed under: over Walt's dead body, umm, wait a second...



  • @tar said:

    @anotherusername said:
    Copyright was invented because people threatened to quit making creative stuff if they couldn't own it forever and continue reaping profits from it in perpetuity. So a compromise was made: they'd keep producing information, and they could enjoy sole profits from it for a limited time, and then it would belong to everyone.

    Are you sure you aren't talking about patents here?

    I'm talking about copyright, but patents are a very similar scenario.


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