I wrote:Editor's note: does he always attack criticism as thievery? By the very nature of debating, rebuttals have no meaning unless the original arguments are quoted. I'd rather not dwell too much on law because it frankly isn't very interesting to me, but all engineers in Ontario are required to take courses in liability law before we can graduate.
I am therefore not totally unfamiliar with law, and in the case of an oft-contested subject like fair use, many of the relevant documents are freely available for public perusal. Just as he did in the original argument with his vague allusions to superior study, he again tries to bluff. He thinks he can make me believe that he's researched the relevant laws in depth, even though it's quite obvious he has not. In Campbell vs Acuff-Rose Music 1994, the US Supreme Court made 4 very clear statements in its judgement, each of which severely weakens Stilgar's claim of unlawful copyright infringement. Together, they totally destroy it:
- The Court stated quite clearly that even a "parody, like other comment and criticism, may claim fair use", even for commercial purposes, never mind the non-profit purposes to which I am using Stilgar's arguments. So much for the distinction he attempts to draw between criticism and character assassination; even mockery is protected under "fair use".
- The Court stated that a lower court of appeals erred in giving weight to the excessive quantity of excerption, because the quantity was "reasonable in relation to the copying's purpose", just as it would be for the discussion of a public "back and forth" exchange such as a debate. In other words, excessive quantity of excerption is evaluated on a situational basis. The excerption of entire sections from his posts is not only reasonable in this situation, but it is actually necessary, in order for rebuttals targeted at his individual points to make any sense.
- The Court stated that fair use depends on the extent to which the use is "transformative, altering the original with new expression, meaning, or message". Once again, a debate obviously qualifies, since the meaning of his arguments are heavily affected by the nature of my rebuttals as well as my editorial commentaries.
- The Court stated quite clearly that even in cases where the defendant is using the copyrighted material for commercial gain, "the cognizable harm is market substitution, not any harm from criticism". Unless Stilgar can show that there's a real or potential commercial market for his arguments (highly unlikely) and that my website is taking profits which belong to him (utterly impossible, since my website generates no profit at all), he has no case. Any emotional harm from perceived "character assassination" is thoroughly irrelevant to copyright law.
In other words, this page is completely protected by §107 of the U.S. Copyright Act, and most countries which respect copyright treaty have similar provisions in their own laws. The document is a criticism. The quantity of excerption is reasonable in relation to its purpose. The work is heavily transformative (the volume of my replies and editorial comments greatly exceeds the volume of his quoted text, and changes it from a pro-Trek pseudoscience tirade into an attack on Trekkie pseudoscience). And finally, there is no "cognizable harm" as defined by the US Supreme Court. This is just another bluff: just as he did with nuclear fusion, he is pretending to have in-depth knowledge of copyright law which he obviously doesn't have. Fraudulent claims of detailed study seem to be habit-forming for him.
In case you're curious about the international aspect of this dispute, copyright infringement is defined using the laws of the country in which the offense occurred. In this case, this means it would fall under Canadian jurisdiction. Our laws have been slowly moving towards the American model, but there are still distinctions. In Canada, we call it "fair dealing" instead of "fair use". Instead of defining four criteria for "fair use", Canadian copyright law simply states that copying is permissible for the purpose of criticism, review, or news reporting as long as the following are mentioned:
- The source
- If provided in the source, the name of the author
In Hubbard v. Vosper (1972), the following statement was entered into the record:
"It is impossible to define what is "fair dealing". It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comments, criticism or review, that may be fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But after all is said and done, it must be a matter of impressions".
In other words, Canadian courts will assess copyright infringement on a case by case basis, based on many criteria, including purpose and relative proportions (between my contributions and his statements). Since the purpose is criticism and my text greatly outstrips his text in volume, there would be no problem on either count. In any case, I would like to see Stilgar care to try his hand at Canadian copyright law, in order to convince a judge that the use of heavily commented excerpts for the purpose of criticism constitutes copyright infringement. It would probably be quite amusing, particularly since Canadian law, unlike American law, has a "loser pays" provision in order to discourage frivolous lawsuits.
Moreover, in U&R Tax Services vs H&R Block (1995), Mr. Justice Richard listed some major criteria to be used when determining whether "fair dealing" had occurred:
- The quality and quantity of the material taken
- The extent to which the defendant's use adversely affects the plaintiff's activities and diminishes the value of the plaintiff's copyright
- Whether the material taken is the proper subject-matter of a copyright
- Whether the defendant intentionally appropriated the plaintiff's work to save time and effort
- Whether the material taken is used in the same or a similar fashion as the plaintiff's
These criteria make it quite obvious that the intent of Canadian copyright law is to prevent copying for plagiaristic, gainful purposes, not to give people a weapon to stifle criticism of their statements (as if this even needs to be said). The last two criteria are particularly enlightening in this regard.
