http://madisonian.net/2010/01/26/intent-fair-use-and-criminal-copyright-infringement/ a blog about law, tech, culture, and related things Thu, 10 May 2012 20:32:56 -0500 http://wordpress.org/?v=2.8.4 hourly 1 http://madisonian.net/2010/01/26/intent-fair-use-and-criminal-copyright-infringement/comment-page-1/#comment-307758 Ethan Thu, 28 Jan 2010 22:52:54 +0000 http://madisonian.net/?p=3864#comment-307758 While there is a federal criminal copyright statute, this (and all the other) awkward brief movie taping/overbearing theater owner arrests that make splashes in the papers are under state criminal law. Many of these laws are of recent 9or recently expanded) vintage, and their elements are wholly distinct from copyright. So Roger Ebert himself taking a theater camshot for the online version of his column (or alternately for some non-profit devoid of any commercial interest) would spend time in the clink or walk based on the state statute's elements, independent of fair use and other federal law. While there is a federal criminal copyright statute, this (and all the other) awkward brief movie taping/overbearing theater owner arrests that make splashes in the papers are under state criminal law. Many of these laws are of recent 9or recently expanded) vintage, and their elements are wholly distinct from copyright. So Roger Ebert himself taking a theater camshot for the online version of his column (or alternately for some non-profit devoid of any commercial interest) would spend time in the clink or walk based on the state statute’s elements, independent of fair use and other federal law.

]]> http://madisonian.net/2010/01/26/intent-fair-use-and-criminal-copyright-infringement/comment-page-1/#comment-307755 Peter Wed, 27 Jan 2010 15:49:55 +0000 http://madisonian.net/?p=3864#comment-307755 Isn't fair use grounded in the First Amendment, and wouldn't one therefore be able to argue that there's a constitutional right that would be infringed if one were prosecuted for actions that constitute fair use? See, e.g., SunTrust Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001)(holding that "The Wind Done Gone's" use of the the plot and characters of "Gone with the Wind" was a non-infringing fair use of GWTW because it was a critique of GWTW's depiction of slavery and the Civil-War era American South and stating that “First Amendment privileges are . . . preserved through the doctrine of fair use” and that to hold otherwise would jeopardize “over 200 years” of the constitutional “guarantee that new ideas, or new expressions of old ideas, would be accessible to the public.” Isn’t fair use grounded in the First Amendment, and wouldn’t one therefore be able to argue that there’s a constitutional right that would be infringed if one were prosecuted for actions that constitute fair use? See, e.g., SunTrust Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001)(holding that “The Wind Done Gone’s” use of the the plot and characters of “Gone with the Wind” was a non-infringing fair use of GWTW because it was a critique of GWTW’s depiction of slavery and the Civil-War era American South and stating that “First Amendment privileges are . . . preserved through the doctrine of fair use” and that to hold otherwise would jeopardize “over 200 years” of the constitutional “guarantee that new ideas, or new expressions of old ideas, would be accessible to the public.”

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