On 11/09/2012 08:32 PM, Andrew Thule wrote:
Chris, thank you for taking time to lay out your position. (Comments
inline)
On Thu, Nov 8, 2012 at 2:16 PM, Chris Little <chris...@crosswire.org
<mailto:chris...@crosswire.org>> wrote:
The problem here is that you are employing CrossWire's mailing list
to publicize the dissemination of a copyright-violating work. You
are breaking the law and you are implicating CrossWire in your crime.
If you refuse to accept what you have repeatedly been told here, I
would ask that you at least cease from using CrossWire to publicize
your illegal activities. If you refuse, I will pursue your removal.
Chris, simply asserting that copyright has been violated does not make
it so. I've presented a defence which you and others have ignored. I
did this so folks who read this list can judge for themselves and I've
posted links to the law itself and quoted the relevant sections.
Simply asserting that you have not broken the law does not make it so. I
would guess that most of us who have responded to you had already read
the US copyright code. It should at least strike you as odd that
literally no one has come to the defense of your position on copyright.
Were that the case for something I had claimed, it would cause me to
pause and consider whether I was the one with the misunderstanding.
I understand you disagree, but don't simply accuse me of something
without dealing with the defence. HOW HAVE I BROKEN THE LAW?
You are engaging in willful copyright infringement.
DSS Translations produced as the result of research/academics are either
exempt from copyright or not.
Translations are protected by copyright until such copyright expires or
until they are deliberately placed in the public domain. Whether they
are 'academic' or not is irrelevant. Nothing in US copyright law
suggests that having been produced in/for academia should remove
copyright protection of a work.
I've posted links to both US and Canadian the law which exempts academic
work as 'fair use' (once scholarly work is published consent is
automatically implied).
That last assertion is ridiculous and personally offensive. The excerpts
you posted indicate that academic USE is a factor in permissible fair
use. It doesn't suggest that you have an automatic right to rip off
academic publications.
For me to have broken the law it needs to be shown how the academic
provision stated clearly in the law doesn't apply to translations
published in scholarly journals. Academic work is except from copyright
once it is published!
That is wholly ridiculous and entirely false. Any creative work
(academic or not) is protected by copyright law once it is CREATED.
(Publication is also irrelevant.) I have no clue where you would acquire
such a patently false idea that academic work is exempt from copyright
protection other than your desire to believe what you wish were the case.
But let's suppose that weren't true. Even Copyright work can be
reproduced as a derivative work so long as the the original work is
sufficiently transformed and serves some purpose. I've not only cited
how book authors using the DSS have used translations not their own for
commercial purposes, but disclaimed I have any such designs and I openly
acknowledge the original translators.
A derivative work may not be produced without the consent of the owner
of the copyright on the original work. 'Copyright' means that the owner
of the copyright has the RIGHT to COPY a work as well as to assign that
right to third parties. You have ABSOLUTELY NO LEGAL RIGHT to create a
derivative work without the consent of the owner of the copyright on the
original works you are using.
The exception is fair use, which must be of limited character relative
to the whole (criterion 3 of Title 17 § 107). When your derivative work
consists entirely of others' works and large portions of their works,
you are clearly outside the realm of fair use.
Even if we assumed falsely that published academic work could be
protected copyright, for my actions to have illegal the module would
have to be NOT a derivative work!
To state again, published academic work is protected by copyright. And
your derivative work is being produced illegally (since you have not
sought permission to produce it). AND the portions of that derivative
work that were part of the original works would still be copyrighted by
their original owners even if you had permission to quote them in your work.
The crux is that you are the one who does not understand copyright
law. No one other than you has said anything incorrect or false with
regards to copyright and fair use. (Greg did misidentify copyright
violation (a legal matter) as plagiarism (an academic honesty
matter) but aside from incorrect terminology nothing he said was wrong.)
I've posted both Canadian and American copyright law in previous posts.
Both Canadian and American copyright law provide for derivative work and
copyright exemptions because the source is published scholarship. Use
of 'translations' produced as a result of academic/scholastic research
is NOT the same as simply PLAGIARISING someone else's (commercial) bible
IF academic/scholastic research IS exempt from copyright - which it is.
No. It is not.
A derivative work may not legally be produced without valid license
to do so. The author of a work upon which a derivative work is based
still owns copyright on the derivative work.
Correct. What constitutes 'valid license' according to US law?
http://en.wikipedia.org/wiki/Derivative_work
Two things:
1. Transformativeness: Notice "The use must be productive and must
employ the quoted matter in a different manner or for a different
purpose from the original. ...[If] the secondary use adds value to the
original--if the quoted matter is used as raw material, transformed in
the creation of new information, new aesthetics, new insights and
understandings--this is the very type of activity that the fair use
doctrine intends to protect for the enrichment of society."
2. Copyright protection: By crediting the original translators, their
original copyright is being honoured but the changes must serve some
purpose (preferably not a commercial one).
Both hold true here.
I agree with your point, but you seem be denying one or both of the
above principles are true in this case.
Permission to produce the derivative work is the only thing that can
constitute a valid license in a case of such broad and
non-transformative copying as you have performed. Basically everything
substantive you said above was false. Copyright is not honored by
'crediting the original translators.' Copyright is honored by NOT
COPYING WITHOUT PERMISSION.
Are you trolling? Honestly I don't comprehend how a person could make as
many statements so antithetical to fact and reality unless it were by
intention.
There are absolutely no special rules pertaining to academic work.
If a work is copyrighted, it is copyrighted. It is equally protected
if it is produced in an academic setting or for an academic audience
or if it is a new Harry Potter novel. The law sees no difference.
Except that materials PUBLISHED in academic, scientific, or research
publications implicitly contain permission to re-use. 'Discoveries in
the Judean Desert' is an academic publication used to convey the results
of DSS research. Therefore once a text is published, implicit consent
is established by law to allow further use of the text, and thus
permission does not need to be obtained to use the text further, nor is
there need to engage copyright. The purpose of the law it to protect
the creation of culture, not to establish the ownership of facts.
Translating ancient text as an act of scholarship is NOT the creation of
culture!
This is all entirely false.
The US Law that imposes these natural limitations on copyright (called
fair use) also outline the four criteria here:
http://www.law.cornell.edu/uscode/text/17/107
1) the purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes;
Is the production of this module going to detract from the competitive
advantage of the translators to do research or the publishers of DJD to
sell DJD volumes?
NO!
I think OUP would disagree. It's fundamentally not your choice to make.
Does it not strike you as odd that OUP have copyright notices in their
volumes of the DJD? How can there be copyright notices if the text is in
the public domain, as you imagine?
(2) the nature of the copyrighted work;
IS THE RESULT OF SCHOLARSHIP!
Scholarship is protected by copyright.
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
Since only the a tiny portion of the DJD translations have been used
(namely only the biblical ones) the amount or portion that have been
used in minor.
First, that is actually quite a substantial amount. And furthermore, the
quantity of your text that consists of copied text marks your use
thereof as beyond fair use.
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
IS Negligible.
OUP would disagree.
Your example of using a Harry Potter novel which is a commercial
endeavour and not published scholarship shows you don't understand the
legal principles of fair use! Harry Potter is culture creation, the
invention of some ones creativity for commercial gain. The translation
of ancient texts and publication in academics sources is NOT.
For my position to be wrong there would need to be the expectation that
DJD was not produced for the purposes of research.
As a matter of copyright law as it pertains to copyright protection,
there is no distinction of commercial vs. acadmic or 'cultural' vs.
'research'. That just doesn't exist.
I presume you also believe that we can legally publish copies of the
NIV, the NRSV, the NA28 and the ECM since it would be for purposes of
non-commercial scholarship. (We cannot. Those are all protected by
copyright.)
Furthermore, you are in no way entitled to pretend that you are
producing work for educational purposes. You are not producing work
for an academic institution. You are not producing work for
classroom instruction. No court in any country anywhere would deem
your actions to fall under academic fair use. Those uses are
themselves extremely limited. I could not, for example, photocopy a
textbook (or extensive portions of a textbook) to disseminate to a
whole class of students. Under fair use, I generally DO scan and
post the first week or two of readings for my students since they're
still awaiting the arrival of their textbooks. And under fair use, I
sometimes distribute copies of short texts or songs that are part of
a larger work to my students. But those are excerpts (they make up a
small portion of my course and what I copy is a small portion of the
whole book/album that I copy from) and that is in an academic
setting (your posting is not).
I'm not. You misunderstand.
Copyright law is about protecting the source! The sources have been
produced as a result of scholarship, and published in a scholarly journal.
The only thing I've said about my goals was that it was not commercial
which speaks to the motivation of producing a derivative work. I'm not
selling this module - so clearly it's not commercial, but whether or not
that's true, the source, the thing we're arguing about IS the result of
scholarship.
Copyright law is not about protecting the source, whatever you think
that means. Copyright law grants a monopoly on reproduction to the
creator of a creative work (which legally includes translations).
If I photocopy the entirety of The Hobbit or copy a DVD of Citizen
Kane or bring a video camera into a theater to record the latest
James Bond movie, I'm committing copyright infringement. I would be
breaking the law in all of those cases because I do not have the
RIGHT to COPY. Whether I do the copying for my own personal use is
irrelevant. It's illegal.
Well .. again The Hobbit is not scholarly work, published to advanced
knowledge. Rather it's the cultural contribution of an author seeking
commercial benefit. Because the intent here is to advanced culture and
not knowledge, the rights of the author are protected. However,
scholars are not denied the right to use the work of other scholars for
the sake of advancing knowledge. Copyright is not designed to restrict
the advancement of knowledge.
If I work in Tolkien studies, then the Hobbit is my basis for advancing
knowledge. In that case, presumably you believe I can copy the entirety
of the Hobbit into a derivative work, without license.
You are severely misinformed about all aspects pertaining to copyright.
It would be highly advisable that you take the warnings of those of us
who have responded to you seriously. We have all been at this a lot
longer than you, and we have much more experience working with copyright
and copyright holders than you.
I have a couple of publications myself. Those works are all essentially
academic in nature: one is a translation of a public domain text, the
others are original works. I own their copyrights in all cases. Were you
to republish those works without my permission, I would have a really
easy court case against you.
A final, very important aspect of fair use that you need to bear in mind
is that it is not defined by statute. It is defined gradually by case
law. You'll notice that US Title 17 § 107 does not state that its four
criteria (purpose/character of the copy, nature of the work, amount
copied, and market effects) are determinative of fair use. They are
'factors to be considered', and specifically they would be considered in
a court of law if the party whose work you are copying believes you were
exceeding the limits of fair use. OUP has a whole legal department. You
would be trivial to defeat in court, especially because your position is
wholly indefensible and your infringement is willful.
--Chris
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