Copyright infringement complaint from The Onion

Can I post that MISS FLORIDA JUST BECAME MISS AMERICA? Go, Florida!

So we'd have to make one extra mouse click. It's really not that labor-intensive.

Zero mouse clicks are even less labor-intensive. Perhaps you should read up a little on the history of the copyright clause in the Constitution, and review the history of the Federalist and Anti-Federalist papers, and Paine's works.

It's a short-sighted judgment made by a lawyer, not a savvy businessman.

Read my new unpublished book, Lawing America: The Origins of a National Lawyer Culture.

I figure if Michael Bellesiles can write a non-fiction book neglecting to use any factual sources in order to attack the Second Amendment, I can neglect to write a fictional book while quoting many factual sources in order to attack the American legal system.

What would be interesting to find out would be if anyone from DU or Bartcop (or any of the other liberal sewers) has been posting Onion material, and if they have been, whether Sean Mills is also going to go after them. From the tone of his e-mail, it seems like Mr. Mills would view even FR links to his site to be offensive to him.

I've done some extensive research in this area. From my experience, it's quite acceptable for liberal websites to violate "copyright" whenever they feel like it.

Is it permissable to post an excerpt from The Onion, with a link, such as we would do for the LATimes or WashPO?

Why bother?

The law frowns on persons "sitting on their rights" and allowing others to invade them and then seeking to vindicate those rights when some other person does an act that constitutes the same or similar invasion. The Onion is absolutely correct in its notice and FR is indeed at risk with posters taking inappropriate license to post without considering the lawfully protected rights of others.

Just wondering why LAT allows some Leftist websites to post wholesale from their site, but sues the Free Republic for the same actions. **grin**

In that case, I'd simply ask two minutes of your time to show us where this is happening. You can spare two minutes...right?

**snicker**

it would be hard to make the educational/research 'fair use' argument.

Give it up. Fair use is dead - killed by a Clinton appointee, who was appointed with the help of one of the very "journalists" who was a party to the suit against FR.

BTW - did you know that E.J. Dionne is a writer for The San Francisco Chronicle? ;-)

**snicker**

Um, am I misreading this?

Um, am I misreading this?

Diverdogz has obviously not spared two minutes of HIS time to bother to find MULTIPLE instances of liberal website re-posting of "copyrighted" LAT/WP/O material. Hence, the **snicker**.

I got your back, Timesink. I consider myself one of FR's top five media experts - you're one of the other ones.

You are so right. Let's not call them "onion rings" any more, "let freedom ring" when you eat your "Freedom Rings" (TM) - I don't want th' onion to swipe my bit of satire...

I got your back, Timesink. I consider myself one of FR's top five media experts - you're one of the other ones.

Ah, that's different. :) Thanks for the compliment, and allow me to return them to you!

The LA Times hasn't, it doesn't and it will not. To do so it runs the risk of a continuing wavier of its rights to enforce their copyrighted materials. Perhaps you could offer some examples, even one will suffice. You won't find one because it doesn't exist-----other than in the minds of those who hate the newspaper.

Just posting my opinion about the Onion's claim, using an article from the Publishing Law Center by Lloyd L. Rich, entitled " Parody: Fair Use or Copyright Infringement"

FAIR USE ANALYSIS
The Copyright Act in Section 107 enumerates four "fair use factors" that must be analyzed to determine whether a particular use of a copyrighted work, such as a parody, is fair use. These factors are the (1) purpose and character of the use, including whether the use is commercially motivated or instead is for nonprofit educational purposes;
FR is MOT commercially motivated, it IS nonprofit educational.
(2) nature of the copyrighted work;
From the Onion such works are parody, predominately social and political parody -- both areas of normal and stated FR interest.
(3) amount and substantiality of the portion used in the newly created work in relation to the copyrighted work; and
For many years FR posters have posted the whole of the article and embedded links to Onion-site hosted images that are part of the article
(4) effect of the use upon the potential market for or value of the copyrighted work. A court when evaluating a fair-use defense takes into consideration each of the four factors as no single factor by itself is sufficient to prove or disprove fair use. The following discussion will describe the specific fair use criterion and provide an overview of the key issues involved in the analysis of the fair-use defense.
1. Purpose and Character of Use
The first fair use factor, the purpose and character of use of the original copyrighted work, evaluates the new work by taking into consideration the following criteria: (1) Has the new work been created for commercial or noncommercial purposes? Although not every commercial use is presumptively an unfair use, and therefore conclusively determinative against fair use, this criterion emphasizes a preference that fair use will be granted to those works that are created for noncommercial or educational purposes rather than for commercial purposes.
Unless we have a Judge what don't care dinkum for the Law (not unknown these days), why gee willikers, FR wins on this factor hands down. It is the ONION that is commercial, it is FR that is noncommercial and educational.
(2) Does the user's use of the copyrighted work conform to the fair use purposes as set forth in Section 107; i.e., criticism, comment, scholarship, research, news reporting or teaching? The burden of proving fair use is usually much easier to demonstrate if the new work is for one of the "favored" purposes enumerated in Section 107, however, this does not necessarily mean that uses of the new work, other than those enumerated in Section 107, will not result in a finding of fair use of the original copyrighted work.
Yes, indeedy, FR wins again on this one. Fr uses the copy for the purposes of criticism and comment, surely.
(3) What is the degree of transformation from the purpose or function of the copyrighted work as compared to the purpose or function of the new work? This criterion analyzes the degree of transformation accomplished by the new work by determining whether the new work has a different purpose or different character than that of the original copyrighted work. For example, does a parody accomplish a transformative purpose by adding something entirely new to the copyrighted work or does the new work only supplant the original copyrighted work? Therefore, the crucial issue in ascertaining the transformative nature of the new work is whether the parody has altered the copyrighted work by adding new expression and meaning to the original copyrighted work.
Yeah, the original posting is not explicitly transformative -- yet by posting in the forum, where comments are welcome and come quickly, that "placement of presentation alone" creates a transformation in the mind of the reader as he reads. This is psychological -- the barriers to response one assumes when reading an article in a magazine or at a web site are broken, are made null -- the FR posting -- more than a posting on the ONION site itself, because of FR's normal and expected level of reader-responses, creates in the mind of the reader a truly different read on the article -- one through which response, feedback, criticism is welcomed, encouraged, celebrated.
So just by cutting and pasting the exact same text, layout and graphics in a different location, specifically on FR, transformation is acheived!
And further, the comments of the forum members come quickly and each explicitly adds to and thus transforms the article.
2. Nature of Copyrighted Work
The second fair use factor, the nature of the copyrighted work, recognizes that certain types of works are simply more deserving of copyright protection than other types of works and consequently establishes the scope of copyright protection that should be afforded the original copyrighted work. The scope of fair use is greater for an "informational work" that is designed to inform or educate, such as a work of facts, information, scholarship or news reporting, than it is for a more "creative work", such as a work of fiction, art or music, that is designed to provide entertainment.
The Onion's parodies are creative works, and meant to provide entertainment -- yet an entertainment that is based on commentary and parody on current social and political issues -- that aspect of the entertainment work is thus INFORMATIVE.
In my self-esteemed highly opinion, any Onion article that parodies political issues, and many that parody social mores, religion, education and like issues are fair game for full fair use by FR, "entertainment" value notwithstanding.
Another important consideration is whether the original copyrighted work has been published or remains unpublished as the courts have been far less willing to sanction as fair use the unauthorized taking of an unpublished work.
The Onion's articles are published. While what constitutes "publishing" on the web may not yet be settled law, I do not think anyone has ever posted some "hidden" Onion web material -- that is the material is all from the main Onion web site.
3. Amount and Substantiality of the Portion Used of the Copyrighted Work
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.
We're talking publishing the whole work -- why? In my highly self-esteemed opinion the whole parody must be posted to achieve the full transformative effect necessary for further criticism and commentary. See my comments above.
4. Effect Upon Potential Market or Value of the Copyrighted Work
The fourth factor, the effect upon the potential market or value of the copyrighted work, analyzes the extent of harm that is caused by the new work to the market or potential market for the original copyrighted work. This factor evaluates the "potential" as well as "actual" financial harm that is or may be done to the original copyrighted work, as well any harm that may be caused to any existing or possible future derivative works. The United States Supreme Court at one time appeared to declare that this factor was the most important element in determining fair use but a more recent Supreme Court decision that will be discussed shortly appears to have limited this finding. However, when the new work becomes a substitute for, or makes the purchase unnecessary of the appropriated original copyrighted work then it is highly unlikely that the courts would sanction such use as being a fair use of the original work. The courts have expressed this standard by finding that an unauthorized use is not a fair use when the unauthorized use diminishes or negatively impacts the potential sale of the original copyrighted work, interferes with the marketability of the work, or fulfills the demand for the original copyrighted work. Although this factor does not presume that all commercial gain will automatically be an unfair use it does establish a high threshold of proof for the copier to demonstrate that the underlying work was not financially damaged.
This is a tough one. Since the courts seem to have put the burden of proof that no harm was done on the copier. The courts also have be ambiguous. When they remember the FIRST AMENDMENT, they say OKAY! When they like the shine of ROLEXES and Gucci shoes, they say NO WAY.
Anyway, many posters have testified already on this thread that their own awareness of the Onion came via FR, as did my own. So the Onion has gained. The two or three times I have purchsed the Onion newspaper at Barnes and Noble were on account of the familiarity I have with them from FR. And I am unlikely to jump through a link to go their site to read an article. Experience has shown that such links may be dangerous to the health of one's PC, due to lurking pop-ups and scripts and such at the linked to site. Whereas and furthermore the Robinson's scrub all posts well before rendering them to the public on FR.
PARODY FAIR-USE DEFENSE: OH, PRETTY WOMAN
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. To ascertain whether Pretty Woman was protected by the fair-use defense the Court proceeded to evaluate the four fair use factors.
The Court determined that the first factor, the purpose and character of the use, favored 2 Live Crew because a "parody has an obvious claim to transformative value" and the rap song was certainly transformative in that " it provid[ed] social benefit, by shedding light on an earlier work, and, in the process, creat[ed] a new one." Therefore, under this factor, even though Pretty Woman certain had as its motivation commercial gain, the Court ruled that a "parody, like other comment or criticism may claim a fair use under [Section] 107 [of the Copyright Act]." Justice Souter stated that the threshold question involving a parody fair-use defense "is whether a parodic character may reasonably be perceived. ... It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works."
The second factor, the nature of the copyrighted work, the Court decided was not of much help in this matter since a parody by its very nature would only be based upon an "expressive" work.
The Court's analysis of the fourth factor, the effect of the use upon the potential market for or value of the copyrighted work, stated that the authors or copyright owner of the original work would normally refuse to license or grant permission to a parodist to parody the original work. Based on this finding the Court then excluded "parody licenses" as a potential market that could be effected by a parody use. The Court then distinguished that 2 Live Crew's Pretty Woman consisted of two separate elements, (i) the parody of Oh, Pretty Woman and (ii) the original rap music itself. In distinguishing these elements the Court decided that the parody could legitimately undercut the market for the original song and any derivative works but that the rap music threatened to illegitimately replace a derivative work market that belonged to the copyright owner of Oh, Pretty Woman. Because there was no evidence on what might be "the likely effect of 2 Live Crew's parodic rap song on the market for a non-parody, rap version of Oh, Pretty Woman, the Court remanded this issue to the trial court for its decision on this matter.
As to the third factor, the amount and substantiality of the portion used in relation to the copyrighted work, the Court indicated that a parody presents a unique difficulty when evaluating the amount of copying because the success of a parody depends upon its use of the original work while its "art lies in the tension between a known original and its parodic twin." The Court then reverted to the "conjure up" test that 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]." Traditionally the third factor weighs against an infringer when the heart of the original work has been copied, but it is the heart of the original that "most readily conjures up the song for the parody, and it is the heart at which parody takes aim." The question for the Court then became how much further could the parodist go in copying the original once the heart of the original was used. The Court, as did the trial court, believed that 2 Live Crew did not use any more lyrics than were necessary from Oh, Pretty Woman and therefore ruled that the third factor favored 2 Live Crew's fair use defense, but since the Court had already remanded the case on the fourth factor it then also decided to remand on the question of whether the quantity of copying was excessive or not.
CONCLUSION
The importance of the Acuff-Rose case, even though segments of the case were remanded for further findings was that the Supreme Court reached the unequivocal conclusion that a parody falls within the scope of the fair-use defense. A future article will discuss two of the more recent cases involving parody and the fair-use defense, Dr. Seuss Enterprises, L.P. v. Penguin Books U.S.A., Inc. (commonly referred to as The Cat In The Hat case) and Leibovitz v. Paramount Pictures Corp. (commonly referred to as the Naked Gun case) and will draw conclusions and provide guidelines relating to parodies and the fair-use defense that may be of assistance to both author and publisher.
Well, all that live crew versus orbison stuff is to subtle for me to make a read of it. But Freedom and Liberty say -- use it, since we are a forum we are discussing it! On the other hand ... going into court where the law is unsettled is like traversing a swamp full of hornets, mosquitos, snakes and crocs. Not fun except for the strong, bold and well-prepared -- and even then risky.
And copyright law is highly unsettled. I say because of fiat money -- but that's too grandly subtle a circumstance of dynamics for me to explain without tangenting off the topic at hand.

Question: Does the first amendment have any impact on this? Put another way, is it possible for copyright law to butt up against the first amendment at all?

All the time. People often forget that COPYRIGHT is a "may be" in the Constitution, the First Amendment speech protections are a "must".

But that would mean that the copyright power can't be exercised at all. Any copyright restriction, strictly speaking, is a restriction on somebody's speech or press. So how do they say that one type of exercise of the power is a violation whereas another type is kosher?

Copyright is not necessarily a good idea. Nor necessary to market ideas or publications. Packaging and delivery are far more important.

Here's a analogy: In my house -- as in most American houses, we have perfectly good tap water. For me it's (nearly) free. I have a well.

Yet my kids, my wife and I still buy bottled water. In fact, a big local bottler had a pumphouse and bottling plant a few blocks away. They drew from a deeper aquifier than my well, but I could spend a few thousand to drill a new hole and draw from the exact same water.

Water's water. Essentially I can "copy" every ounce they have. At extremely low cost. Yet I still buy bottled water. And pay more than the price of gas for it!

Amazing!

But "IP" does get you access to venture capital and such. THAT is a fad. A fad of financing and business ventureing, but one that's been around for a while and strenghening like the winds around the eye of a storm.

And that kind of capital availiablity is being fed by fiat money. it a hard money system it requires re-allocation off of genuine profit-making and typically dividend paying entities. And those men understood real hard wealth creation. Now it just requires proximity to the wells of fiat money. And those wells are surrounded not by industrialists and retailers and supporters thereof -- but by legions of evil angels of financiers and lawyers.

"IP" is magically expansive. With one pen's worth of india-ink to draw a cartoon mouse you can conquer all industry and manufacturing! If you have the legions of evil angels beside you.