Posted by PTravel on 08/14/07 17:23

"Mark & Mary Ann Weiss" <mweissX294@earthlink.net> wrote in message
news:Fmcwi.908$Fw7.7@fe03.news.easynews.com...

I'm not going to step into this dispute, other than to say that, though I've
not met Chris Hurd personally, I've known him on-line for quite a while, and
have nothing but respect for his fairness, honesty and integrity which, in
my opinion, is beyond question. I should also add that I co-moderate the
Taking Care of Business forum on dvinfo.net. I've been following this
thread because I'll be upgrading from my VX2000 to an HDV machine within the
next year, so your allegations about the V1U are of interest to me.

As I said, I won't comment on the present dispute. I will, however, address
some misconceptions about copyright law contained in your post.

> Now here is where you are patently wrong. I did some research following
> our
> last e-mail, and it turns out that I can use up to 60 seconds of video
> from
> copyrighted material in a review about that material. It's called "Fair
> Use"
> and it's the law.

There is no magic amount of protected expression that may be used without
authorization, and below which no infringement liability will attach. Fair
Use is a defense to copyright infringement, meaning that, but for the
availability of the defense, the particular use would result in copyright
infringement liability. Moreover, Fair Use is an equitable defense, meaning
that whether or not the doctrine applies will be determined by a judge based
on the facts specific to the action which is before her. Contrary to
popular opinion, whether or not a specific use comes within Fair Use
doctrine is not a determination that can be readily made by a lay person.
The factors codified at 17 U.S.C. Sec. 107 are neither exclusive nor
dispositive -- the judge must consider them, but is not bound to follow them
and may include other factors as the specific facts of the case suggest.
The unauthorized use of protected expression that you've described may or
may not constitute Fair Use -- I don't know as I haven't seen it. However,
you walk a dangerous course when you rely on your own research (from which
you've already derived considerable misinformation) to assess your potential
for liability.

> I was well within legal rights, as I used 1/30 of a second
> from footage shot by various consumers that was posted to the public
> internet. These were not even commercial videos. My use was purely for
> academic, journalistic purposes, as a comparison of what the consumer can
> expect from the various cameras.

The fact that it was posted to the internet is irrelevant. Educational fair
use is a niche subset of Fair Use doctrine and has a number of specific
requirements. Merely calling something, "academic" will not suffice, even
if the intent behind the use was to educate.

> As to the fact that I wasn't able to attribute the images to their
> shooters,
> many of them had been collected over a 2 years span, from diverse sources,
> and at that time, I was viewing them for my own edification. I had no idea
> that I would one day grab a frame from each clip and display it on my
> camcorder comparison page, which is a hobby page, and not a commercial
> profit-making venture.

Collecting clips results in making an unauthorized copy, i.e. copyright
infringement. It doesn't matter whether you were viewing them for your own
edification. Non-commercial use is not a defense to infringement. If a use
is truly Fair Use, attribution is unnecessary, as Fair Use doctrine
expressly contemplates unauthorized use.

Note, too, that I am not commenting on the particular use that you made of
this material. I don't know what it is. You are, however, relying on some
common myths about copyright protection, and I think it is important to
address them.

> Even so, I have done nothing illegal or immoral by
> doing so. When you post content to the public internet, you have no
> reasonable expectation of privacy or that your content won't be played or
> displayed somewhere else.

Posting on the internet does not result in a waiver of copyright or
dedication to the public domain. "Expectation of privacy" has no relevance
to copyright law; it is a concept that has meaning in the context right of
publicity law. People can, and should, expect others to respect their
copyrights when posting material to the internet. My own videos, which are
non-commercial, appear on my website and on Youtube. I actively police my
rights and have sent cease-and-desist letters to infringers who appropriated
my protected expression without my permission. Should I ever find an
identifiable infringer who trespasses on my rights AND they are reachable by
process under U.S. law, I will sue for infringement (one of the nice things
about being a lawyer is I can do so at minimal expense), and you can be
assured that, "it was posted on the internet so there was no expectation of
privacy" will be no defense whatsoever.

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