Out of the fog leaps a new site claiming to be the end-all-be-all of gun sites. Why do we need one? Well, according to “Smoke and Thunder” (nicknamed “Smoking Blunder”):
Let’s face it, most gun blogs aren’t very interactive and many are stuck in the stone-age when it comes to technology and social networking. It’s 2012 and the internet has been around for a while, yet I still see major gun blogs that offer their users little more than a basic text commenting system. Often, users who wish to communicate with each other are forced to talk back in forth through comments, until one of them finally posts his or her email address publicly and says “Just email me so we can talk about that in private”. Seriously folks, we are talking about major gun blogs that offer stone-age commenting systems as the only way of interacting with other users and the blog itself!
To which I retort with a nobody blogger with an ages old blog, very lacking in technology. You’ve probably never heard of him.
Remember, I do this to entertain me, not you.
The big hubbub is that they are taking bloggers pictures, setting up profiles for them, then claiming they are active members, even after these members (like Breda) have requested to be removed. Their defense? Fair Use.
So… they were called on it, but just like the anti-gunners, they resort to ‘Reasoned Discourse.’ I posted a comment there and they actually approved it! But… take a look at the link number in the URL compared to the number of comments on the page:
http://smokeandthunder.com/cranky-blogger/#comment-8
The link is intentionally not clickable. Now, that says comment-8…. but there are only 4 approved comments on there. This… is ‘Reasoned Discourse’ at work.
(Note: After thought with other bloggers, it looks like comments are numbered in order across all blog posts on the site meaning #8 means the 8th across EVERYTHING and not just that thread, so giving them the benefit of the doubt, this does not appear to be classic ‘Reasoned Discourse’.)
I’m actually surprised that comment got published. Let’s see if this other one does! Currently, it’s awaiting moderation. Anybody that watches the anti- blogs knows what that usually means! Apparently trolls don’t like competition.
Your comment is awaiting moderation.
Yours very obviously is not for identification purposes. That’s what “Breda Fallacy” is for. The same with “SayUncle” and “Oleg Volk”. Are you worried about that much confusion with the OTHER gun-related people with those names? This is the exact reason that Wikipedia requires that pictures be Creative Commons or similar license before they can be used in an article. Even though they are for your identification purposes, the other facts in the article provide the context with which to identify the person/place/object in question.
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[1]
You are not submitting for comment, criticism, news reporting, teaching, scholarship, or research, so according to US law, you do not fall into the fair use category.
As far as purpose or character, yours is not parody nor transformative (meaning it is a derivative).
As to the next section, the nature of the copied work, it is a picture, not an idea or fact, so that means that fair use can be used to prevent a work from leaving the public domain. A derivative of artwork from a blogger certainly does not fit that category.
The next piece looks at the AMOUNT of the original work that has been brought into the new work. In this case… 100%. If you were copying for personal use after first obtaining the rights from the owner, that would be fair use.
This leaves “the effect of the use upon the potential market for or value of the copyrighted work” which very easily sits outside of favor for your website, especially since the average user would go here for the images instead of the original artist’s page. “Artists? HA! Published where?” you say? Perhaps you don’t view them as artists. Unfortunately for you, 17 USC doesn’t care.
“The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
Now, let’s add this tiny tidbit:
In evaluating the fourth factor, courts often consider two kinds of harm to the potential market of the original work: First, courts consider whether the use in question acts as a direct market substitute for the original work. In the judgement of the Supreme Court in Acuff-Rose Music they decisively stated that, “when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur”
There’s also Kelly v. Arriba Soft Corporation. Thumbnails used for the sole purpose of linking were determined ILLEGAL then overturned on appeal because these THUMBNAILS provided a preview of the material on the original copyright owner’s site. You do not provide links to the original authors’ sites. Had you done so, they would have said “Thank you.” Instead, you are attempting to use their likeness as though they are active members of your community, so much so that you’ve created fake profiles of them, called them “Active members”, and refused to remove them as requested.
This means you are either an internet troll or you are copying their images in an attempt to give yourself false credibility at their expense.
Fair use my ass.
Now, while they have so far approved 1 of 2 comments (the other hasn’t been posted long), looking only at the URLs to the comments, there’s no doubt that Reasoned Discourse is being invoked.
I want to give the caveat that my account is one that I did indeed sign up for, if only to look around. I found some very interesting things. If you’re going to claim to be “all that and a bag of chips” (my quote, not theirs), then perhaps you should have your own content instead of just linking to “The High Road”.
