That's Not How Things Work
May 6, 2016 9:00 AM   Subscribe

That's Not How Things Work
I made two quick-and-dirty, single-serving sites, to serve as convenient rebuttals to misconceptions that one commonly encounters on the Internet. is for those dopey "no copyright infringement intended" sorts of things that one sees on YouTube, etc. is for those people who squeal that their fuhreedom of speech is being violated because someone disagreed with them.

I knocked both of these together in an evening, so I'm sure there's room for improvement. I welcome suggestions, or ideas for similar sites.

I did want them to be kind of funny and snarky – but I also want people to actually learn something from them. I ended up toning down the snark on the copyright site, but the freedom of speech site is still fairly snarky. Lemme know if you think it's too much (or too little).

This is my first Projects post, so I hope I'm doing it right.
Role: writer technical
posted by escape from the potato planet (11 comments total) 10 users marked this as a favorite

Tell me more about this erotic Garfield fanfiction.
posted by cortex at 9:02 AM on May 6, 2016 [1 favorite]

Be careful what you ask for.
posted by escape from the potato planet at 9:04 AM on May 6, 2016 [1 favorite]

Great use of a Creative Commons-licensed image on the copyright mini-site. Bravo all around. You need to keep those domains registered for the next 100 years... I'll toss in a donation to pay for a couple weeks.
posted by oneswellfoop at 4:28 PM on May 6, 2016

Certainly common mistakes, nice.

Minor--what, nitpick? suggestion?--is the word "specific" you twice attach to fair use discussion. Just seems not the best word. Fair use isn't really defined, let along specifically--there are guidelines for helping decide but fair use stems from the first amendment and the line can be annoyingly hazy. Nothing wrong with the substance of your comments there.

(Also, it reminds me of an annoying internet argument ages ago with someone who thought copying games and giving them to friends was "fair use" because reproduction for "commenting" or something was fair use, and of course your friends are going to comment . . . )
posted by mark k at 10:54 PM on May 6, 2016

These are a really good idea, but on initial look the Fair Use information needs work. That Stanford page is really not very good. (And yeah, finding decent, clear info on Fair Use can be hard.)

There are four, not two, main criteria for testing Fair Use, and your "limited" note is actually completely wrong: the amount used should be proportional to what you're trying to accomplish in your derivative work. That means up to and including using the entire original, if that's what was needed. Yes, using less does tend to make your chances better, but that's less about explicitly defining a limit than saying "don't be greedy."

You might also throw in a note that Fair Use is basically always a bit of a risk. There's no such thing as saying, "This is Fair Use" because you complied with the guidelines(to your interpretation) and then it is. It gets decided in court.
posted by Su at 10:05 PM on May 8, 2016 [4 favorites]

(I am an attorney, but I am not your attorney, and this is not legal advice. If you have questions about whether a specific work infringes a copyright or might be covered by fair use, you should consult an attorney in your jurisdiction.)

but fair use stems from the first amendment

No, it stems directly from the Copyright Act. There is no doubt some kernel of fair-use-like protection extended by the First Amendment, but the protection offered by the Copyright Act goes well beyond that, and virtually no fair use cases hinge on the First Amendment.

Anyway, I would really recommend working with an IP attorney to firm up the content. If you're trying to correct people, especially in a fairly aggressive way, you want to be sure your arguments are impeccable. This material is very complicated. The standard treatise on the subject, Patry on Fair Use, runs to 1,090 pages in its current edition. And that's just fair use. The complete Patry on Copyright is an 8 volume, ~6,000 page behemoth. Trying to accurately condense that down to ~2,000 words is a tall order, even limiting the discussion to online cargo-cult legal disclaimers.

Some specific examples:

If any criminal could just say “sorry; I didn’t intend to commit the crime that I committed”, we’d have a lot more criminals roaming free.

In fact quite a few crimes hinge on the defendant's state of mind and degree of intention. In many jurisdictions in the US it's the difference between manslaughter and murder, for example. Indeed, as long as we're talking about criminal law, criminal copyright infringement requires willful infringement. One variety of it even further requires that the infringement be made for commercial purposes. So you can see that intent often matters.

The better point to make is that, for better or worse, ordinary non-willful civil copyright infringement is a strict liability tort: intent is simply irrelevant, by statute. Intent can make things worse, but lack of intent cannot save you. (Well, okay, technically it can reduce statutory damages in rare cases of so-called 'innocent infringement' under 17 USC § 504(c)(2). See how complicated this is?)

Continuing the example:

Besides, you obviously did intend to violate copyright. You made a copy of the work (which was an intentional act); you were aware that the work was copyrighted (or you wouldn’t have bothered to include a disclaimer); therefore, you intended to violate copyright.

Not necessarily. If the disclaimer was included in good faith (i.e. under the reasonable if mistaken belief that their use was fair use), then there was arguably no willful infringement. I say arguably because the exact meaning of 'willful' varies significantly according to which Circuit the case is heard in.

And again:

Copyright isn’t about who gets credit for a work.

Not as such, no (although it can play a role in licenses), but falsely claiming authorship of the original work is a major strike against a fair use claim.

There's a lot more that could be addressed, but this comment is already pretty long-winded for Projects.
posted by jedicus at 8:11 AM on May 9, 2016 [3 favorites]

OK – thanks for the suggestions, Su and jedicus. I'll update the copyright page when I have the time. It isn't really meant to be a comprehensive guide to fair use law, though; the real point is just "fair use doesn't mean you can do whatever you want with copyrighted materials". I'll soften up that section with some caveats/disclaimers.
posted by escape from the potato planet at 3:07 PM on May 9, 2016

Maybe could there be a snarky version and also a not-snarky version of the freedom of speech page? I'd love to share a more accessible version with, say, some people on Nextdoor occasionally.
posted by aniola at 10:38 AM on May 12, 2016

Nice concept, and amusing reading!

Definitely too much snark, though. The copyright page is passable, but the Freedom of Speech page says "In this exchange, you are an idiot. (The other person might also be an idiot, but we’re talking about you right now.)" Which breaks one of the primary rules of calling someone out - don't say they ARE bad/wrong; say they are DOING SOMETHING bad/wrong.

But yes, I could definitely envision linking to a lower-snark version of this.
posted by sibilatorix at 12:27 PM on May 12, 2016

I like the snark levels! If I was linking someone to the free speech one it would be because I thought they were an idiot and I'd be happy for you to tell them so on my behalf. Good work especially for a first project!
posted by billiebee at 11:07 AM on May 15, 2016

I find the snark detracts from the message. But I'm Canadian so *shrug*
posted by ead at 2:43 PM on May 26, 2016

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