The Monster USCC Off-Topic Thread

[BigE]

I read that 98% of MA residents already have medical coverage. They certainly don't speak for the rest of America.

http://www.dailykos.com/story/2010/1/18/1477/53811
http://www.boston.com/news/health/bl...han_97_pe.html

[0siris]

We happen to support Health Care Reform

NO ONE doesn't support health care reform.
What the House and Senate passed isn't reform. Neither one.

[0siris]

1. You're quoting a district court case and a 9th Circuit case, Harper & Row is a seminal Supreme Court case, Justice O'Connor's words carry a bit more weight than Judge Morrow.

I don't see the two in opposition. In fact, I think you're proving my point:

2. Even your quote does not prove your point...copying an entire article "weighs heavily" against a finding of Fair Use...it is not dispositive. That is, your contention that posting an entire article is de facto NOT Fair Use is simply not true.

HoFo isn't a court of law. The point isn't to find all the legal tangles. In fact, I'd argue it's to AVOID them. The best way to do so is to treat copying en toto as a violation. And you're citations seem to agree with me:

3. The Supreme Court states in Harper & Row and its progeny that the fourth factor (the infringing use's effect on future markets) is the most important factor is is given the most weight. Posting an entire article in "The Monster USCC Off-Topic Thread" has absolutely no effect on the future/potential market for the work.

(Emphasis added)
That's the way I read that case, too, that there is no question that the copying of the entire article is an infringement. A site like HoFo isn't tasked with being concerned about the damage done. Only whether the action constitutes infringement. And, again, as I read the case, that's not in question.

4. Your point about HoFo "refus[ing] to acknowledge" certain things...believe me, if I were Howard's counsel I would advise him to do absolutely no policing of the site in regards to this topic...once you start removing certain content but leaving others it gives the impression that you're performing an editing function or giving tacit approval of the content that remains on the site. Telling mods to delete posts that distribute warez is infinitely easier.

I don't agree. DMCA forces action if HoFo receives a takedown notice, so why NOT be proactive about it? Don't tinker on the fringes. When it's CLEAR, act without having to be told to act. HoFo doesn't have to judge the damage done, only that the violation has happened. And copying an entire article with only one sentence of comment is a clear violation.

[BigE]

I don't see the two in opposition. In fact, I think you're proving my point:

I'm not.

HoFo isn't a court of law. The point isn't to find all the legal tangles. In fact, I'd argue it's to AVOID them. The best way to do so is to treat copying en toto as a violation. And you're citations seem to agree with me:

No, the best way to avoid liability is to stay out of it because as I said previously...once you start removing certain material but allowing other material to remain you are performing an "editing or gatekeeping" function thus exhibiting tacit approval for the uses or content that remain.

(Emphasis added)
That's the way I read that case, too, that there is no question that the copying of the entire article is an infringement. A site like HoFo isn't tasked with being concerned about the damage done. Only whether the action constitutes infringement. And, again, as I read the case, that's not in question.

1. HoFo isn't "tasked" with doing anything.
2. I figured that this is where you were getting hung up, pay attention because this is important. Fair Use is an Affirmative Defense, the only way that you even arrive at a Fair Use analysis is if there is infringement. The two are completely separate issues. So I'm first going to argue like hell that the article wasn't even copyrightable. In this instance the work was a collection of known facts about a public figure sewn together without even a modicum of creativity.

When arguing Fair Use one says "Your honor the work that was copied here was not even copyrightable...in the alternative if the work WAS copyrightable then my client did not infringe...in the alternative if my client DID infringe then he is excused from liability because his was a Fair Use."

It's similar, but different mind you, from Self-Defense in the criminal context..."Yes ladies and gentleman of the jury my client killed Lance and Nicholas, but he was acting in self-defense."

I don't agree. DMCA forces action if HoFo receives a takedown notice, so why NOT be proactive about it? Don't tinker on the fringes. When it's CLEAR, act without having to be told to act. HoFo doesn't have to judge the damage done, only that the violation has happened. And copying an entire article with only one sentence of comment is a clear violation.

And now once again you're talking about a different area of copyright law, the obligations an ISP or other third party has once they've received a DMCA takedown notice are different from those that they have in the ordinary course of operating their site.

As I stated above, being proactive about this stuff is a BAD idea for sites like HoFo. It is a slippery slope that you do NOT want to start down because it bleeds into other areas...before you know it you're monitoring for copyright and Fair Use issues, trademark infringement, misappropriation, defamation such as libel and slander... not to mention one of the things that makes this site great, the leaking of confidential and proprietary information that results in the violation of Non-Disclosure Agreements.

No my friend, in the operation of a site like this it is always better to be REACTIVE.

I know that you say that HoFo is not a court of law and this is true but if you're not operating your site with an eye towards what MIGHT happen if you DO end up in court then you are not acting in a very prudent way at all.

[tearsonurcheek]

Would DMCA even apply, given that Howard is out of Canada? Or would it depend on where the hosting company is based?

[AndThenScottSays...]

Depends on where the site is hosted. That's why you can find nearly anything you want on Russian sites.

[Nicholas]

Wirelessly posted (some phone: BlackBerry8230f/4.6.1.208 Profile/MIDP-2.0 Configuration/CLDC-1.1 VendorID/189)

I ordered an HTC Snap last night. Took a look at the Curve 2 and the Tour and said screw BB, I'm going WinMo. It'll be sweet, I'm excited. Sure it's not all spectacular or whatever but I think it'll do well. So goodie

[AndThenScottSays...]

Wirelessly posted BlackBerry8230

I ordered <snip> (anything but the piece of crap bolded above)

I'm going to Verizon to beg for an upgrade a couple of weeks early. I don't think I can take another day with this phone. I want my real Pearl back!

[BigE]

Wirelessly posted (some phone: BlackBerry8230f/4.6.1.208 Profile/MIDP-2.0 Configuration/CLDC-1.1 VendorID/189)

I ordered an HTC Snap last night. Took a look at the Curve 2 and the Tour and said screw BB, I'm going WinMo. It'll be sweet, I'm excited. Sure it's not all spectacular or whatever but I think it'll do well. So goodie

I'm really itching to get back to WinMo...carrying two BB's is getting annoying. I've been scanning Craigslist for cheap Touch Pros.

[BigE]

Would DMCA even apply, given that Howard is out of Canada? Or would it depend on where the hosting company is based?

Depends on where the site is hosted. That's why you can find nearly anything you want on Russian sites.

I believe it's not so much where the site is hosted that matters but rather that if you are a foreign company but the site is hosted in the US then that is one way that the DMCA can be extended and applied to you.

Even if the company is a US company or individual who operates a site hosted elsewhere you best believe I'm still going to serve a DMCA takedown notice.

[AndThenScottSays...]

Even if the company is a US company or individual who operates a site hosted elsewhere you best believe I'm still going to serve a DMCA takedown notice.

Sure you can serve it, but would it even stick?

[BigE]

Sure you can serve it, but would it even stick?

I believe it would and should, yes.

Mind you an unsophisticated party might comply with the notice without even investigating whether or not it applies to them.

[Nicholas]

I'm going to Verizon to beg for an upgrade a couple of weeks early. I don't think I can take another day with this phone. I want my real Pearl back!

Good luck with it man!!! I hope they'll take care of you

[Nicholas]

I'm really itching to get back to WinMo...carrying two BB's is getting annoying. I've been scanning Craigslist for cheap Touch Pros.

I understand completely man. WinFo (it's supposed to be "Windows Phone" now, my bad about the WinMo comment ) is interesting in it's ways. I'm hoping this one fixes the complaints I've had in the past. If not I'm going dumb phone

[BigE]

I understand completely man. WinFo (it's supposed to be "Windows Phone" now, my bad about the WinMo comment ) is interesting in it's ways. I'm hoping this one fixes the complaints I've had in the past. If not I'm going dumb phone

WinMo...WinFo, I don't care. I'm just getting an itch to tweak, hack, etc...I can't really do that on my 8830, there just isn't much to do on it, especially with only 64MB of memory. The Tour is a company-issued device to it's not mine to tweak, the most I dare to do is download and install apps, la di freakin' da!

EDIT: BTW...dumbphone? If you do that I'll....do.....something