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couweatyou, I don't know if I'm understanding you clearly here. It sounds as though the folks in Lessig's camp are advocating more freedom to copy web based items, primarily because people want to do it, some people are already doing it, and they're finding so much to play with, creatively. But that argument reminds me of a petition someone in my high school started in order to raise the speed limits in residential areas by 10 miles per hour. His argument was that people were driving that speed already, so we may as well make what they're doing legal. I didn't sign the petition, for two reasons. One, I don't think it's a good idea to change laws to make lawbreakers feel better about their bad behavior; and two, once we raise the speed limit, what's to stop the speeders from driving even faster? If residential speed limits are 25 miles per hour, and drivers know that photo radar will give them a ticket at ten miles over, they won't go more than about 34. If we raise the speed limit to 35, then wouldn't it stand to reason that drivers will still keep the 9 mile per hour cushion they're used to? And what happens to kids riding their bikes when drivers are going 40 mph?

Kooky analogy, I know, but I think it applies. My question, as it relates to copyright, is this. If we ease up on the restrictions placed by the DMCA and replace them with more user-friendly rules, what's to stop the people who are already breaking the DMCA from breaking the new rules, too? Do we then, in another 30 years or so, loosen up those rules to accomodate the people who are doing things differently already? Where does it stop?

I agree we need a better way to regulate copyright infringement online. DMCA does, in fact, get in the way of copying behaviors that would be covered by fair use in a non-digital arena. But that doesn't mean we need fewer restrictions, it only means we need different ones.

And again, if this is just me totally misinterpreting what I'm reading, feel free to set me straight (politely, please, I cry easily ).

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We're really straying away from the topic, which is Steve, The Lexi-book, and copyright infringement. Since when does placing someone's copyrighted materials on their website mean that said copyrighted materials become fair game? Can someone cite some case law, please?

Strictly speaking, they are not. They can use the current laws to their advantage and lobby for changing them, however. That's part of what makes the Lexicongate important, does allowing copyright infringement on a wed site somehow mean you have partly abandoned your copyright?

*My official opinion here is that the case for the defense is stronger than I had originally thought it would be. I do not, however believe they have a strong enough case to get the book published without some substantial changes.

1. Steve said in his declaration that he had taken a few graduate level classes, not that he had complete a master's degree. That's not a slight in any way, it's just a means of pointing out that he is not a "professional" librarian, as defined by the American Library Association. A librarian is a person who has been awarded a master's degree in library and/or information science. Not every person who answers questions in a library is a librarian, which means that they don't all have the level of education and training that a librarian is required to have. Steve, as a teacher-librarian, or a school library & media specialist, may or may not have had extensive training in copyright. It would not have been required for his teaching certification, and I doubt it would be required in the school library training. Based on conversations with my school librarian colleagues, such training hits a couple of the copyright high points in passing, but Steve should probably by no means be considered an expert.

And we still don't know who RDR's copyright expert was, or how much information he or she was given when Mr. Rapoport asked for an opinion. We also don't know how firmly said expert held that opinion. In any case, the expert has not joined RDR's case at this point, which implies something to my mind, at least.

And 2. It's been said before, but the sort of paraphrasing, and the citation of those paraphrases, that is generally required in a college level research paper is not the sort of paraphrasing and citation that exists in the current manuscript of the Lexicon book. If I had turned in a paper in my research methods class in my second year of graduate school that had this many paraphrases with very little of my own analysis, and with the sort of sketchy citation that the Lexicon book employs, I would not have been given a passing grade. I feel like I can say that with confidence, because I knew my professor quite well. But I don't know of any graduate level professors who would accept a work of this quality and give it a passing grade.

We've been talking about the four factors of fair use as though each will be examined in a vaccum, but the truth is that they are meant to operate in conjunction with one another.

The four statutory factors may not have been created equal. In determining whether a use is "fair," the Supreme Court has said that the most important factor is the fourth, the one contained in 17 U.S.C. §107(4). See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. -----, 566 (1985), citing 3 M. Nimmer, Copyright §13.05[A], at 13-76 (1984). (But see American Geophysical Union v. Texaco Inc., 60 F.3d 913, 926 (2d Cir. 1994), cert. dismissed, 116 S.Ct. 592 (1995), suggesting that the Supreme Court may now have abandoned the idea that the fourth factor is of paramount importance.) We take it that this factor, "the effect of the use upon the potential market for or value of the copyrighted work," is at least primus inter pares, figuratively speaking, and we shall turn to it first.

And as long as Steve's timeline is not published inside the Lexicon book, an explanation for how he extrapolated certain dates and "facts" he uses in his index is absolutely necessary. But it's not there. There's no sort of accountability being held to in this book.

I wouldn't give a passing grade to my undergraduates if they turned in something like this, and a graduate student would probably get not only a failing grade but a stern lecture on the importance of original thought in academic research. Hmmm.......perhaps I'm not really the friendly neighborhood professor, after all

So it's all Rowling's fault that the internet makes it easy to pirate HP stuff? Is she responsible for you illegally downloading an ebook? No. You're responsible for that. Did you know it was wrong? Sure you did. I managed to wedge all of my Potter books into my dorm room, right alongside my school books and other fictions. Limited space is no excuse to steal.

We're really straying away from the topic, which is Steve, The Lexi-book, and copyright infringement. Since when does placing someone's copyrighted materials on their website mean that said copyrighted materials become fair game? Can someone cite some case law, please?

The first half of your post is filled (again) with the confusion of physical property and copyright, so I am going to ignore it (because it is late I don't feal like argueing that point and it is OT). But back on topic, I am not argueing that point at all. I am more of the point that the lexicon should be consittered transformative (and therefore fair use). But I guess that is mainly what this forum is already about.

piracy not theft; they are two toally different things

The fact of tha matter is that if the content industries treated online downloading like competition instead of some illegal activity that must be stomped out if they are to survive then it would be a much smaller problem then it is today.

When I was an undergraduate student, computers were housed in a building and we made programs on stacks of punch cards. I never thought I would have 5 of them in my home. Times change, technologies change, if people want to keep up and compete they embrace it.

piracy not theft; they are two toally different things

First, as I said before, piracy not theft; they are two toally different things and calling a copyright a property right just mudies the waters,

What I am really saying is I agree with the 9th circut decision in Groakster which basically said that 70 year olds shouldn't decide what technologies are and are not allowed.

Fair point, I think it is possible the FUP has access to enough legal expertise they didn't feel the need to add this testimony.

The fact of tha matter is that if the content industries treated online downloading like competition instead of some illegal activity that must be stomped out if they are to survive then it would be a much smaller problem then it is today.

I would counter your analogy with the civil rights movement (not that I think civil rights and copyright are on the same level, I don't, I am just using it as an example). The civil rights movement of the 60/70's brings up an important point about unjust laws. Is civil disobediance against an unjust law right. I think that there is a difference between someone (in your example) who speeds just to get someplace faster and someone who speeds because they think (justifiably) the speed limit is too slow.

I'm going to try not to directly address the DMCA because 1) it is off topic 2) I foam at the mouth when I just see those words. So let me just point out that I recently read an introduction to a law symposium that estimated that the average person commits $2 billion of copyright infringement per year (I don't remember where this paper was but if you want a citation, I can look it up). I don't agree with a social contract in which I can be sued at any time and for any reason by anyone. What I am really saying is I agree with the 9th circut decision in Groakster which basically said that 70 year olds shouldn't decide what technologies are and are not allowed.

I have never agreed that in that aspect of the case. Since copyright can't be abandoned I have always belived that fair use is at issue here.

A bit off-topic, but weren't pirates themselves originally government mercenaries?