Klarinet Archive - Posting 000204.txt from 2009/02

From: Jonathan Cohler <cohler@-----.org>
Subj: RE: [kl] Fair Use
Date: Mon, 09 Feb 2009 18:54:33 -0500

At 2:18 PM -0800 2/9/09, Tim Roberts wrote:
>On Mon, 9 Feb 2009 14:13:40 -0500, Jonathan Cohler <cohler@-----.org> wrote:
>> What is clear so far is that you have not shown a single case to
>> support your claim that copying over a marked-up part that one owns
>> is a copyright violation, or any case even vaguely similar to that.
>>
>> Given the fact that this type of activity happens every day in every
>> musical institution and musical environment all over the world, it is
>> clear that no lawyers feel they could win such a case. ...
>>
>> Conclusion: it is highly likely that this is NOT a copyright violation.
>>
>
>But, Jonathan, do you really not see that your conclusion does not
>follow from your premise? Given your premise, that no lawyers feel they
>could win such a case, you could reasonably conclude that "it is
>vanishingly unlikely that you will be sued over this." However, that
>has absolutely NOTHING to do with the legal question "is this a
>violation of copyright?" It IS a violation of copyright, whether or not
>anyone ever gets dragged into court over it.

According to whom? If it has never been adjudicated as a violation of
copyright law then likely it is not. Your opinion (and any number of
other lawyer's opinions) is not what determines what is legal and
what is illegal. Courts of law do. And, BTW, the quotation you give
above "it is vanishingly unlikely..." is not a quote of me, but I do
agree with the sentiment.

>Allow me to use an analogy. Given the fact that no police department
>will stop you for going 56 in a 55 speed zone, it is clear that they do
>not feel they could win such a case. Conclusion: going 56 in a 55 zone
>is NOT speeding.

Wrong, wrong and wrong. First, I must add that I am somewhat of an
expert on this particular issue, having tried and won numerous cases
(as the defendant) on this matter both at the magistrate hearing
level, the district court level, and at the state appellate level.

First, there ARE police departments that will stop you for 56 in a
55. In fact, you can be stopped (and lose in court, I might add) for
traveling at 45 in a 55, depending on road and weather conditions,
and many such cases exist. Just as in the copyright case, there are
MANY factors that come in to play in determining speeding cases. The
training of the officer, the equipment used, whether a proper
engineering survey was done prior to posting the alleged speed limit
sign, etc....

In other words, whether 56 in a 55 is speeding depends upon many
factors, which can only be evaluated in a court of law. The main
reason, of course that most officers don't stop most people for less
than 10 mph above the speed limit, is that it doesn't become
lucrative enough for their police department until it exceeds that
limit.

This, of course, is NOT the case in the issue of copyrights that we
are discussing, because it would be a HUGE case with multi-million
dollar potential if it was actually a copyright violation.

>The analogy is exactly parallel, and the conclusion is equally as flawed
>as yours.

Not parallel as noted above, and your reasoning is faulty as noted above.
--
Jonathan Cohler
Artistic & General Director
International Woodwind Festival
http://iwwf.org/
cohler@-----.org

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