[sword-devel] DSS (Biblical Dead Sea Scrolls based upon DJD translations)

Robin Munn robin_munn at sil.org
Tue Nov 13 20:20:16 MST 2012


When you are the only one who thinks your position on copyright is 
correct, and *everyone* else is telling you "No, you're fundamentally 
misunderstanding the case law involved," I submit that it might be wise 
to stop and consider the possibility that you may be wrong in your 
understanding. And by the way:

On 11/14/2012 01:40 AM, Andrew Thule wrote:
> It's been hinted that because I stand alone in my defence, against
> so many, clearly I must be wrong. This, of course, is the fallacy
> argumentum ad populum. The number of people who believe something to
> be true, has no bearing on the truth of the belief. In human
> history, there was a time when only a single person believed the
> world was round rather than flat. There was also a time when only a
> single person believed the messiah (though King) would be killed and
> rise on the third day. Sometimes it takes a single dissenting voice,
> to correct popular misconceptions however bleak the odds.

This would only be a fallacy if I was asserting that because you are the 
only one who believes this position, you *must* logically be wrong. 
However, I am asserting that you would be *wise to consider carefully* 
the possibility that you might indeed be wrong. (And by the way, you are 
completely INCORRECT in asserting that "there was a time when only a 
single person believed the world was round rather than flat" if you are 
referring, as I think you are, to Christopher Columbus. In fact, most of 
his detractors also believed the world was round, and knew that the 
distance to India was too great for Columbus's proposed voyage to 
succeed: he would run out of food and other vital supplies before 
reaching his destination. Columbus believed that the distance was about 
25% less than his destractors said it was, and argued that he would be 
able to carry enough supplies. As it turned out, Columbus' detractors 
were actually CORRECT: had he not had the extreme good fortune to bump 
into a totally unsuspected land mass that neither he nor his detractors 
knew about, he and his men would have starved before reaching India. See 
http://www-spof.gsfc.nasa.gov/stargaze/Scolumb.htm and 
http://en.wikipedia.org/wiki/Myth_of_the_Flat_Earth for more details.)

And getting back to the relevant point, you are indeed wrong in your 
understanding of fair use doctrine in the US. You assert the following 
two defenses:

On 11/14/2012 01:40 AM, Andrew Thule wrote:
> 1. This module falls within the provisions of section 107 of the
> Copyright Act, and therefore constitutes 'fair use'
> 2. Independent, and in addition to this, the use of Copyrighted work in
> the case of derivative works is permitted.

On point one, fair use doctrine in the US relies, as you know, on four 
factors: the nature of the use (including commercial vs. non-commercial 
use), the nature of the copyrighted work (facts are not copyrightable), 
how much of the copyrighted work is used (copying substantial portions 
weakens fair use defense a LOT), and the effect of the use on the market 
value of the original work (this one is where your assertion of fair use 
would fail utterly in court).

And by the way, you should be aware that non-commercial use is NOT a 
clear defense in fair use doctrine. See L.A. Times v. New Rebublic 
where the website freerepublic.com was copying L.A. Times articles 
wholesale for the purpose of allowing people to engage in political 
commentary on them. Relevant quotes:

"the mere fact that a use is educational and not for profit does not 
insulate it from a finding of infringement, any more than the commercial 
character of a use bars a finding of fairness" (three different cases 
are cited in support of this, so I won't quote them all; you can find 
them easily enough with a text search.)

"even copying for noncommercial purposes may impair the copyright 
holder's ability to obtain the rewards that Congress intended him to 
have" (Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 
417, 452, 78 L. Ed. 2d 574, 104 S. Ct. 774 (1984))

"while other factors in the fair use calculus may not be sufficient by 
themselves to preclude the fair use defense, . . . excessive copying 
precludes fair use" (Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 
758 (9th Cir. 1978))

"the concept of a 'transformative use' is central to a proper analysis 
under the first factor." (American Geophysical Union v. Texaco, Inc., 60 
F.3d 923 (2d Cir. 1995))

"'the more critical inquiry under the first factor and in fair use 
analysis generally is . . . whether and to what extent the new work is 
transformative,'" not whether the use is commercial." ( Castle Rock 
Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 142 (2d 
Cir. 1998))

And one final quote, from the LA Times v. New Republic case itself:

"Here, the court has found that defendants' copying of plaintiffs' 
articles is minimally, if at all, transformative. The comments of the 
individual who posts an article generally add little by way of comment 
or criticism to its substance. The extent of the copying is more than is 
necessary to foster the critical purpose it is designed to serve. 
Because the copying is verbatim, encompasses large numbers of articles, 
and occurs on an almost daily basis, the evidence supports a finding 
that defendants (and visitors to the Free Republic page) engage in 
extensive, systematic copying of plaintiffs' works.

Weighed against the essentially non-transformative nature of defendants' 
use is the fact that they do not directly derive revenue or profit from 
the posting of plaintiffs' articles, and the fact that their operation 
of the Free Republic website has many characteristics of a non-profit 
venture. So too, their use of plaintiffs' articles appears to be 
intended more for public benefit than for private commercial gain.

Since the "central purpose" of the inquiry on the first fair use factor 
is to determine "whether the new work merely 'supersede[s] the objects' 
of the original creation, . . . or instead adds something new" ( 
Campbell, supra, 510 U.S. at 579), the court finds that the 
non-transformative character of the copying in this case tips the scale 
in plaintiffs' favor, and outweighs the non-profit/public benefit nature 
of the purpose for which the copying is performed. This is particularly 
true since the posting of plaintiffs' articles to the Free Republic site 
amounts to "systematic . . . multiplying [of] the available number of 
copies" of the articles, "thereby serving the same purpose" for which 
licenses are sold or archive charges imposed.  [*54]  See American 
Geophysical, supra, 60 F.3d at 924. The first fair use factor thus 
favors plaintiffs."

As you can see, the non-commercial use of a work, even for educational 
purposes, is not a sufficient defense in fair use doctrine if the work 
is copied wholesale. And the "transformative" term above does not refer 
to changing material from one format to another, as a non-lawyer might 
reasonably assume, but rather to a very specific concept, that the use 
"must employ the quoted matter in a different manner or for a different 
purpose from the original. [...] Transformative uses may include 
criticizing the quoted work, exposing the character of the original 
author, proving a fact, or summarizing an idea argued in the original in 
order to defend or rebut it. They also may include parody, symbolism, 
aesthetic declarations, and innumerable other uses." Note that simply 
reproducing the original work in a different format (electronic form vs. 
printed matter) would NOT count as a transformative use under this doctrine.

(See http://en.wikipedia.org/wiki/Transformativeness and 
http://en.wikipedia.org/wiki/Derivative_work#Transformativeness and the 
various cases cited there for more details on transformativeness 
doctrine; if I were to go into all the cases on how your use of the DJD 
translations, verbatim, would NOT be transformative enough to be a 
legitimate "derived work" under US case law, this email would become 
even longer than it already is.)

Andrew, I understand that you have the best of intentions and want to 
honor the law in your actions. However, given that there are many people 
who are informing you that you are in violation of the law despite your 
good intentions, I have to ask you: are you a copyright lawyer? If not, 
have you consulted a copyright lawyer about whether what you're doing is 
permitted under US law? (I'm assuming that US law is what applies to 
you; if not, substitute Canada or whatever country you live in for US in 
the above question.) Because I am VERY much concerned that you are in 
serious violation of copyright law without knowing it -- but ignorance 
of the law is not a defense that US courts ever accept. Please, PLEASE, 
talk to an expert and LISTEN TO HIS OPINION, even if it's completely the 
opposite of what you had previously believed was true.

In Him,

Robin Munn

More information about the sword-devel mailing list