Klarinet Archive - Posting 000031.txt from 2009/02

From: Jonathan Cohler <cohler@-----.org>
Subj: Re: [kl] Derivative Works
Date: Mon, 02 Feb 2009 15:36:40 -0500

At 10:22 AM -0800 2/2/09, Tim Roberts wrote:
>You wouldn't be prosecuted, you would be sued. You can't be hauled to
>jail for copyright violation, unless it was for commercial gain, as I
>understand it.

Obviously, one wouldn't be hauled to jail=20
(usually) in a civil action, but the use of the=20
word "prosecute" is correct. FYI, here is the=20
standard accepted definition of the word:

>pros=B7e=B7cute (prs-kyt)
>v. pros=B7e=B7cut=B7ed, pros=B7e=B7cut=B7ing, pros=B7e=B7cutes
>v.tr.
>1. Law
>a. To initiate civil or criminal court action against.
>b. To seek to obtain or enforce by legal action.

At 10:22 AM -0800 2/2/09, Tim Roberts wrote:
>The situation you describe is illegal. You are in violation of
>copyright. You COULD be sued, and you would lose.

It is your opinion that the situation I describe=20
is illegal. However, there is a very high degree=20
of likelihood that you are incorrect, given that=20
there is NO case law to support that opinion.=20
=46ortunately, in law, what is legal and illegal is=20
decided ONLY by courts of law. Written laws are=20
simply the guidelines that judges and jurors are=20
supposed to follow when deciding cases. It is=20
their decisions, however, that ultimately=20
determine what is "legal" and what is "illegal",=20
not yours or anyone else's opinions.

So once again I say, show me one such (relevant)=20
case that has been adjudicated in a court of law.=20
If you cannot, then clearly there is no weight=20
behind your opinion.

At 10:22 AM -0800 2/2/09, Tim Roberts wrote:
>Now, are you LIKELY
>to get sued? No, of course not. It's simply not profitable for the
>copyright owner to go after that kind of violation.

It seems to me it certainly would be profitable=20
to sue every large institution in the world, as=20
every musician and musical institution in the=20
world engages in this practice (of for example=20
copying pages for page turns). It sounds like it=20
would be a great class action suit. The reason=20
the suits don't exist, is that they realize they=20
cannot win, because the use is a "fair use".

Your opinion that is illegal, with absolutely=20
zero case law to back it up is not really=20
relevant.

Show me a case.

At 10:22 AM -0800 2/2/09, Tim Roberts wrote:
>The unfortunate fact is that many of them SHOULD have been prosecuted.
>Schools are among the worst.

Schools are non-profit institutions of education.=20
They are clearly and explicitly exempted in the=20
fair-use section of the law, which I quote again=20
below for your reference. In fact for educational=20
purposes, you can even make "multiple copies for=20
classroom use" as explicitly stated in the law.

The reason there are no cases to support your=20
dubious contention is that lawyers realize they=20
cannot win in court.

Show me a case.

End of story.

--Jonathan

>=A7 107. Limitations on exclusive rights: Fair use40
>
>Notwithstanding the provisions of sections 106=20
>and 106A, the fair use of a copyrighted work,=20
>including such use by reproduction in copies or=20
>phonorecords or by any other means specified by=20
>that section, for purposes such as criticism,=20
>comment, news reporting, teaching (including=20
>multiple copies for classroom use), scholarship,=20
>or research, is not an infringement of=20
>copyright. In determining whether the use made=20
>of a work in any particular case is a fair use=20
>the factors to be considered shall include -
>
>(1) the purpose and character of the use,=20
>including whether such use is of a commercial=20
>nature or is for nonprofit educational purposes;
>
>(2) the nature of the copyrighted work;
>
>(3) the amount and substantiality of the portion=20
>used in relation to the copyrighted work as a=20
>whole; and
>
>(4) the effect of the use upon the potential=20
>market for or value of the copyrighted work.
>
>The fact that a work is unpublished shall not=20
>itself bar a finding of fair use if such finding=20
>is made upon consideration of all the above=20
>factors.

--
Jonathan Cohler
Artistic & General Director
International Woodwind Festival
http://iwwf.org/
cohler@-----.org

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