Another mirror site has been discovered (click here) – and what do you know, it’s meatbrain’s favorite post of all time – the one on Rachel Meeropol, the great-granddaughter of the communist spies for the Soviets-the Rosenbergs; who were put to death for their communist activities with the soviets. But meatbrain somehow thinks stealing my content and hosting it somewhere is an act of brilliance.
Meatbrain did this in the past with the same post and a few others-as you can see here,I complained to his hosting company and it was removed.
The Rosenbergs’ guilt was verified in the Venona Cables; but – just like today’s modern day terrorists, and the likes of Mumia, communist supporters like Meatbrain have a problem with it and would rather hammer on the perception of ‘innocence’; not because they’re innocent, really-but because any action against evil racist ‘imperialist America is okay by them, and even justified.
And the Soviets really aren’t and never were all that bad, you know.
Meatbrain has said he mirrored my column too (http://www.examiner.com/x-16358-Cincinnati-Independent-Examiner) but I haven’t looked for the mirror site. If anybody finds it, I suppose that means more people will read it.
I went to your link and found it interesting that the website is http://mirror.ENVY.nu.
I worry about Meatbrain because meat = food, and I’ve read about certain tribes consuming brains, either monkey or human, leading to ghastly viral infections. Since his own web site says “It’s meat! And it thinks!” I’m suspecting human brains. Some tribes, of course, eat human beings not out of hunger but to acquire the powers of the person they’re eating.
His website based on the stupid short story by Terry Bisson “they’re made out of meat” which you can see here hosted @ MIT (click here). Bisson is the self-proclaimed socialist science fiction writer that is published by Kathryn Cramer’s husband David Hartwell. She complains that I am discrediting one of their writers–but totally omits the fact that meatbrain stalked us first, LOL…and we did some research and connected some dots…and lo and behold, it leads back to HER and her flaky moonbat husband.
Do some reading about Bisson and you’ll find that meatbrain’s thinkingmeat.net holds a lot of the same beliefs; “free mumia!”, socialism, and lots and lots of cut and pastes of media matters’ material. In fact, it’s media matters’ material that causes him to stalk the conservative websites; because he’s so dumb he can’t think on his own.
Probably one of the reasons he wants a communist utopia where he can suck another toke of that bong-and live in his sci fi fantasyworld; where global warming is real, etc.,etc.
Speaking of stealing, show us the letter that grants you permission to use that image from the Terminator movie. You’re a lying hypocrite yourself, Miss Thomas.
Oh Tom. you silly brainless pufter, you sound just like meatbrain at Thinkingmeat.net. Question: are you storing MHT files of my content on your hard drive? Are you stealing other images of me, hoping to get me upset?
I hope you know that we can’t really have a conversation when you’re doing that.
FYI-I claim Fair Use – as my lawyers said in this post dated January, 2008 (TWO YEARS AGO), citing copyright law, but the applicable parts are duplicated below for readers following your nonsensical bullshit. (There is a difference between his stealing my content and hosting it on another server – and my using the Linda Hamilton image on the blog; but just so you know-with your smug sarcastic attitude- I’ve already investigated the ramifications.) Meatbrain has not hosted that elsewhere in order to comment on it; in fact what it is he’s attempting to accomplish by hosting the content there is odd and questionable, at best.
You, on the other hand, are a vicious two-faced psycopath (and a negative-attention seeking one at that)….but I don’t suppose you need anybody’s permission to be that, LOL. Okay, everywhere there is “meatbrain” or “thinking meat” substitute “Tom Mannis the cowardly pufter who calls himself Thor”
Apparently, some bloke named Meatbrain (apparently the name Cao’s detractor actually uses, which could easily be considered appropriate by a jury) has taken offense with the use of Linda Hamilton’s likeness borne from the classic Arnold Schwarzenegger film, Terminator 2: Judgment Day. Meatbrain has accused Cao of copyright infringement (an actionable tort against Meatbrain should Cao decide to sue for defamation and prove the use of the photo not a wrongful use). The question is, and in our opinion, the only question is, was it, and is it, a wrongful use, or not?
We think not. “We†includes the five attorneys who have considered this, and have extensive experience in both prosecuting and defending The Fair Use Doctrine.
“We†also, rather loosely and by reference, but in fact, includes the three different university copyright law centers, which were researched, quoted, and utilized to flesh out the determining factors of Fair Use for this guest post.
What is the fair use doctrine? Obviously something Meatbrain is unfamiliar with. The most general and powerful of the Copyright Act‘s limitations— the fair use doctrine is a fairly straightforward concept and codified law of the United States of America. Unfortunately, it can also be rather complicated for the novice or the layman. Making it more difficult are the varying opinions in varying courts, as to what is, and what is not, fair use.
Background of “Fair Use”
The concept of “fair use” evolved over the years as courts tried to balance the rights of copyright holders with society’s legitimate interest in making copies in certain, limited circumstances. “Fair Use” has a core belief that copying should be allowed for purposes of criticism, news reporting, teaching and research.
“Fair use” is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist’s work without asking permission. If you wish to criticize Meatbrain, and you are a soccer mom from the Midwest, and you use Linda Hamilton with a machinegun to emphasize your point, then it’s fair use. Absent this freedom, copyright owners could stifle any negative comments about their work.
Unfortunately, if the copyright owner disagrees with your fair use interpretation, the dispute will have to be resolved by courts or arbitration. If it’s not a fair use, then you are infringing upon the rights of the copyright owner and may be liable for damages. Apparently Cao is not worried about that, nor should she be. Likewise, Arnie and Sarah Conner aren’t worried either. If they were Cao would already have a lawsuit. However, all that being said, Meatbrain is welcome to represent them for free when he gets his law license, and is admitted to the US Federal Courts. On the other hand, expect us to represent Cao.
When looking at the criteria for Fair Use, the only guidance is provided by a set of fair use factors outlined in the copyright law of the United States of America. Federal law, the final word, not state law from Meatbrain’s state of domicile, wherever that may be. The Fair Use factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income (please note this emphasis was for a critical reason outlined below). Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate. Again, all that being said, Sarah Conner is most probably an open and shut case. Fair Use, no problemo, Cao.
Another important fair use factor, and maybe the most important, is whether Cao’s use deprives the actual copyright owner of income or undermines a new or potential market for the copyrighted work. There is no doubt that depriving a copyright owner of income is very likely to trigger a lawsuit. This is true even if you are not competing directly with the original work. However, in this case, the chances are that the copyright owner would be thanking Cao for continuing the legacy and keeping Sarah Conner in the fight to win a world war, which we are certainly in right now, like it or not.
Let’s look at an example; in one case an artist used a copyrighted photograph without permission as the basis for wood sculptures, copying all of the elements of the photo. The artist earned several hundred thousand dollars selling the sculptures. When the photographer sued, the artist claimed his sculptures were a fair use because the photographer would never have considered making sculptures. The court disagreed, stating that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992). Cao makes no income from her commentary on sociological and political issues. A powerful bit of prima facie evidence when she raises the Fair Use argument (prima facie: evidence on its face, which stands alone).
At this point we should address all four factors judges consider. The four “fair use” criteria from the 1976 Copyright Act are:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes.
2. The nature of the copyrighted work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The forefront of people’s minds as the answer.
4. The effect of the use upon the potential market for or value of the copyrighted work.
These are the law, but there is also a 5th factor, the factor beneath the surface in any court of law:
5. The “Fifth” Fair Use Factor: Are You Good or Bad?
If you are still with us at this point, we’ll get to it. The bottom line is that a jury would most definitely perceive Cao as good and Meatbrain as bad. Just an opinion, but one forged in the fire of many jury trials. So, Meatbrain, have at it. But, before you do, here is the brief synopsis:
1. The first criterion: The Purpose and Character of Your Use
This first factor primarily inquires whether the work is of a commercial nature or whether it is intended for utilization in an educational or newsworthy setting.
Additionally, it seeks to know whether it is an original form of copyrightable expression, or whether it is a copy of other(s)’ work.
If you work at a not-for-profit educational institution, then you normally need not worry about this criterion. A news blog, operated without profit, employees, salaries, or income, could be considered a non-profit educational endeavor.
The Transformative Factor:
In 1994 the Supreme Court emphasized the first factor as being a primary indicator of fair use. At issue is whether the material has been used to help create something new, or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following two questions:
1. Has the material you took from the original work been transformed by adding new expression or meaning?
2. Was value added to the original by creating new information, new aesthetics, new insights and understandings?
In a parody, for example, the parodist transforms the original by holding it up to ridicule. News, research or education can also qualify as transformative uses because the work is either the subject of review or commentary, or the purposes of commentary or to emphasize a commentator’s viewpoint. Sarah Conner, with the background removed, cropped, transformed in a different style, could easily be found to have met the transformative factor criteria.
EXAMPLE: If Cao were to borrow several quotes from a speech given by the CEO of a lumber company, then publish these quotes on photos of old-growth redwoods in an environmental section of her blog. By juxtaposing the photos of endangered trees with the CEO’s copyrighted quotes, Cao has thus transformed the remarks from their original purpose and used them to create a new or different insight. This copying would probably be permitted as a fair use.
2. The second criterion: The Nature of Copyrighted Work
The second factor inquires into whether the work was created for the purposes of criticism, comment, news reporting, teaching, scholarship, or research. It is fairly straightforward. The list is not restrictive, but the burden of showing fair use is easier if the reason for the work’s creation is consistent with these purposes.
In addition, you will have a stronger case of fair use if the material copied is from a published work than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his expression.
The Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, Bruce A. Lehman, completely agrees that Fair Use is an “affirmative defense” against an accusation of copyright infringement:
See id. § 110(1)-(4), (6), (10) (allowing under certain conditions nonprofit entities to perform or display works); id. § 110(7) (allowing performance of non-dramatic music works to promote sales); id. § 117 (excusing functionally necessary or archival copying of computer programs); id. § 120(a) (allowing representations of architectural works constructed in public places and alterations of buildings embodying copyrighted works).
In the case of Sarah Conner, the transformed image is used for criticism, comment, and news reporting. It therefore probably meets this requirement. Let’s say that Cao put underneath the Sarah Conner photo the following quote: “Hmmm, now what would Sarah Conner do on a day like this….†That comment alone would weigh heavy in the fair use argument, because it references Sarah Conner, and therefore Cao would be using Sarah Conner’s photo to emphasize her criticism and commentary on the state of the world and fact that it’s being over-populated by nincompoops like Meatbrain.
3. The Third Criterion: Amount & Substantiality
This factor inquires into the amount used. It simply asks how much of the work did you use, or copy? For small poems, or a haiku, perhaps the entire work may be fair to copy. For larger works it may be fair use to copy only a small amount. However, if what you used was the creative essence or the very heart of the work, there is a high probability that it would infringe.
Use “no more… than was necessary.” As an example, if Cao put the entire film on line, or all the Sarah Conner parts, or used the entire screen shot of Sarah Conner in the desert, it would probably (nothing is ever certain with federal judges) be an infringement. In this case, the amount of the film used, was so incredibly miniscule, and even substantially cropped, that a case for the fair use exemption is pretty much guaranteed.
The less you take of the original work, when combined with the criteria above, then the likelihood that your copying will be excused as a fair use rises exponentially. That being said, even if you take a very small portion of a work, it will not be a fair use if the amount taken was the very heart of the work. Basically, you will have a problem citing fair use if you take the most memorable aspect of a work. It would not be a fair use to copy the chords and the words of the first minute of lyrics from the song, “Used To Love Her But I Had To Kill Her.â€
Less is more is not necessarily true in the case of parodies. The parodist borrows in order to comment upon the original work. A parodist is permitted to borrow a large amount, including the heart of the work, in order to conjure up the original work. As the Supreme Court has acknowledged, “the heart is also what most readily conjures up the [original] for parody, and it is the heart at which parody takes aim.†See Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).
4. The Fourth Criterion: Effect Upon Potential Market
Of all the criteria, this one is the criterion upon which the US federal courts place the most weight. It is a very very simple question: Did the copying or use deprive the copyright holder of a sale? Some attorneys think this is a hard call to make. We think not. Especially in the case of Cao’s Sarah Conner picture. Non-profit activities have broader leeway in fair use than for-profit entities….
Even more importantly, is that Sarah Conner photo for sale by the copyright holders (Carolco International N.V., Carolco Pictures, Inc, Tri-Star Pictures, Inc.)? It is not. And most importantly, did the copyright holders lose any profit from the limited use of Cao’s Sarah Conner picture?
The relationship between fair use and market value has been described as:
Since we bought a copy of the film to watch the actual scene the photo came from, and since Cao has never sold a copy of it, and finally, and since the photo isn’t for sale by the copyright holders, it’s an easy answer. They did not lose a sale, if anything they made money off Cao’s use.
Here is one that was NOT a fair use. A television station’s news broadcast used 30 seconds from a four minute copyrighted videotape of the 1992 Los Angeles beating of Reginald Denny. The use was commercial, took the heart of the work and affected the copyright owner’s ability to market the video. (Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997). We know the owner very well, and he has led the battle against fair use over his Reginald Denny video. Some news channels are still in court over their “unfair†use fifteen years ago.
The bottom line is whether Cao’s use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. There is no doubt that depriving a copyright owner of income is very likely to trigger a lawsuit.
In one case an artist used a copyrighted photograph without permission as the basis for sculptures. He copied all of the elements of the photo. The artist then made several hundred thousand dollars in profits through his sale of the sculptures. As his defense the artist claimed fair use because the photographer was not going to ever make sculptures. The federal court disagreed, stating that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. See: Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).
5. The “Fifth” Fair Use Factor: Are You Good or Bad?
Fair use cases often contradict one another or conflict with the views expressed here. Fair use involves subjective judgments and is affected by factors such as a judge or jury’s personal sense of right or wrong. Despite the fact that the Supreme Court has ruled that offensiveness is not a fair use factor; a morally offended judge or jury may rationalize their decision against fair use.
A novelty card company created a parody of the Cabbage Patch Kids children’s dolls. The parody cards were entitled the Garbage Pail Kids and used grotesquely gruesome names and images to poke fun at the wholesome Cabbage Patch image. Several well-known copyright experts were astonished when a federal court considered the parody an infringement, not a fair use. See: Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc., 642 F. Supp. 1031 (N.D. Ga. 1986).
What does that mean?
Cao has a wholesome nice image. Meatbrain on the other hand, does appear to be an “*******.†Cao could win a copyright case. Meatbrain would no doubt lose his shirt and most likely even his shorts.
_____________
Our thanks to Georgia Harper, University of Texas System Office of General Counsel, Bruce Lehman, Commissioner of Patents and Trademarks, Peter Hirtle, Cornell Institute for Digital Collections, the University of Maryland University College, and most of all The Cornell University Copyright Information Center for their information, studies, and articles on the subject of Fair Use in Copyright Law.
PS: One thing is clear. Meatbrain needs to learn about copyright law. May we be so bold as to suggest the University of Texas System Crash Course in Copyrights? It is a great place for complete amateurs to start.