Hi -- Remember Me?

[Donald Markstein]

I've been remiss in not responding to this list for months on end, but I do
at least glance over it when it comes in, and often I read parts of it, no
matter how busy I am. And I SHOULD respond to a lot of stuff here. I just --
well, don't.

But I absolutely can not let this interpretation of the "Fair Use" section
of U.S. copyright law go unresponded-to, because those who act on it may
find themselves very badly hurt. Remember, we are dealing with DISNEY.

"Fair Use" MAY mean that you can make ONE COPY of something which is out of
print, and hand it privately to a colleague for purposes of study. It does
NOT mean you can put it out on the Web for absolutely anybody in the world
to download. It's true that the Web didn't exist when the law was written,
and new interpretations will be called for -- but the very strong trend is
for Web posting to be considered "publication", not "making a copy"; and if
you PUBLISH a complete copyrighted work, you are very definitely violating
the owner's copyright.

Furthermore, last month's comic book is not "out of print" in any meaningful
way. It may very well be that copies are still available from the publisher
(which is what "in print" means) -- in fact, I'll bet quite a few of
Gladstone's comics still are. And even if it does flicker out of print for a
moment, who's to say they don't have a reprint headed for the distributor
even now? Or next month? Or next year? The publisher's ownership of the
material does not evaporate the moment the last copy leaves the warehouse,
nor does its legal ability to control distribution. In any case, a recent
comic book should be easily available to anyone who goes looking and is
willing to pay; and therefore re-publishing it violates the spirit, if not
the absolute narrowest interpretation of the letter of the law.

Picture yourself alone in court, with a hundred Disney lawyers glaring at
you, as are the judge and the jury, and you're saying, "Uh, it was kinda,
well, out of print, y'know, so nobody could get it anymore, and, um..."

Remember, again, who we are dealing with here.

And even STILL furthermore, there's a new U.S. copyright law coming into
effect right about now, and preliminary reports are that "Fair Use" is going
to be a lot harder to justify. Especially when you're dealing with -- well,
the people we're dealing with.

A good rule of thumb about copyrights is that anything, absolutely anything
at all, is protected by copyright if the person claiming it has a lawyer;
and nothing, absolutely nothing at all, is protected by copyright if the
person claiming it doesn't have a lawyer. And if there's one thing Disney
has, it's lawyers.

As to the "Robin Hood" question -- i.e., does Disney have a MORAL right to
its property? I'm not going to get into that, because I haven't fully
thought it through, and probably won't live long enough to fully think it
through. My gut reaction says corporations are not human beings and
therefore don't have the rights of human beings; on the other hand, saying
an entity doesn't have "moral" rights to what it owns looks an awful lot
like the top of a slippery slope, and I'm an owner of intellectual property
myself.

Anybody who wants to post Disney comics on the Web does so at his own risk.
Period. We can argue among ourselves till the cows come home about whether
or not it's okay to do so, but they're the ones you'd have to convince, and
they are notoriously difficult to convince on this point.

Your best bet is to hope they don't catch you. And all I can say with
absolute certainty is that I won't be the one to blow the whistle on you.

Quack, Don

Quack, Don

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