[sword-devel] DSS (Biblical Dead Sea Scrolls based upon DJD translations)

[Benjamin Misja]

Hi Andrew, 

You keep claiming that you are providing a derivative work. 
But your concept of derivative work is flawed as well. Look at the definition of 
"derivative work" according to US law 
(http://www.law.cornell.edu/uscode/text/17/101): 

"A “derivative work” is a work based upon one or more preexisting works, such 
as a translation, musical arrangement, dramatization, fictionalization, motion 
picture version, sound recording, art reproduction, abridgment, condensation, 
or any other form in which a work may be recast, transformed, or adapted. A 
work consisting of editorial revisions, annotations, elaborations, or other 
modifications which, as a whole, represent an original work of authorship, is a 
“derivative work”."

US copyright seems to follow the same ideas as copyright laws in other 
countries in terms of what constitutes copyrighted work 
(http://www.law.cornell.edu/uscode/text/17/102). A work is under copyright 
when it is the result of some kind of creative act ("original work"), but not 
a) when it is just an idea or b) the result of a mechanical process. For 
example, when you spell-check (or even update the spelling of) a public domain 
text, the spell-checked version doesn't fall under your copyright because 
anybody else could have done the same thing, and it's not your "original work" 
(see above). When you update the language of the text, it does. But when, for 
example, you OCR and digitalize a public domain text, you do not have 
copyright of the digitalized version, because you are just making a copy with 
special copying techniques. 

Thus, the DSS will be in the public domain due to their age, and as such, 
anybody can use them for any purpose. The same is true if somebody digitalizes 
the text. But a translation constitutes the "original work" of the translator 
(as derivative work, see above) and IS copyrighted (this is why bible 
translations are copyrighted). 

Thus, a derivative work has to be the result of any kind of creative process 
that transforms the work used into something else, a new "original work". But 
you are just making a collection of quotations of sections in their entirety - 
nothing else. This probably does not even fall under the fair use in academic 
quotations in the first place due to its scope. You might be able to claim 
copyright on the arrangement of the texts (the only part of your "original 
work"), but you certainly cannot claim copyright on the texts themselves. 
This means you are a) making copies of copyrighted work, not derivative work, 
and b) you are distributing publically copyrighted work. This is a breach of 
copyright that is NOT justified by fair use, academic use, or the academic 
character of the copyrighted material you are publishing. 

Creating derivative works, making copies, or distributing copies of his 
copyrighted work are part of the exclusive rights of the copyright holder, 
(http://www.law.cornell.edu/uscode/text/17/106 , excempting fair use, which 
this isn't, as somebody has pointed out, because fair use does not include the 
right of public distribution, including of nothing but large quotations of 
copyrighted text, no matter the purposes).

I hope this helps. 

Ben

Am Freitag, 9. November 2012, 23:11:04 schrieb Greg Hellings:
> Andrew,
> 
> You have fundamentally misunderstood what type of exemption is
> applied. Works produced by academic institutions are still eligible
> for Copyright and do not fall into the Public Domain by default.
> However, an academic may utilize a Copyrighted work in certain Fair
> Use scenarios which are outlawed in the laws you cited. Yes, if you
> are producing acadmic writings or other similar works, you are free to
> quote from another's translation of the DSS or any other piece of work
> as long as you adhere to the requirements of the Copyright laws.
> 
> Those laws are not stating that, by producing a work that is academic,
> you have no Copyright claim to it. You misunderstand the very nature
> of the Fair Use clause.
> http://en.wikipedia.org/wiki/Free_content#Academia summarizes the very
> fact that not all academically produced works are free. They're not,
> and you are simply wrong in claiming that they are. The fact that such
> works are under Copyright is why researchers are required to grant
> their institutions the perpetual right to use works produced while at
> that institution - this applies to translations just as much as any
> other work.
> 
> If you want citations, here is the decision Basic Books, Inc. v.
> Kinko's Graphics Corporation where the court ruled that Kinko's was
> not allowed to reproduce academic works because it violated the
> publisher's copyrights:
> http://fairuse.stanford.edu/primary_materials/cases/c758FSupp1522.html.
> 
> Here is Princeton University Press v. Michigan Doc. where it was
> likewise found by the courts that academic texts cannot be copied and
> distributed without permission from the Copyright holders as that is a
> violation of their rights:
> http://www.law.cornell.edu/copyright/cases/99_F3d_1381.htm.
> 
> And here is an analysis of a Copyright case this summer where
> publishers brought against Georgia State University suit regarding
> their use of academic works in the classroom. If you read down about a
> third of the way you will find that academic Fair Use allowed the
> University to reproduce, under a limited-user-access system excerpts
> which did not exceed 10% of the original work that was published for
> works of 9 or fewer chapters and not more than a single entire chapter
> for works of 10 or more chapters. Again - the Copyright is upheld, and
> academic uses in a classroom by a University library are tightly
> restricted - not allowed free-form like you are saying can be done
> with any text produced in the academic world:
> http://laboratorium.net/archive/2012/05/13/inside_the_georgia_state_opinion.
> This is the most relevant of the three cases because it sets specific
> limitations that a not-for-profit University library is required to follow.
> 
> So you have provided the law, and I have provided the Court rulings
> which show that your interpretation claiming that academic works are
> not under Copyright is false. Those works ARE subject to Copyright
> unless their authors or publishers have explicitly released them from
> Copyright. And to reproduce them for anything other than your personal
> use or use in a classroom by your students or the other very narrow
> cases in the Fair Use clause is a violation of that Copyright.
> 
> --Greg
> 
> On Fri, Nov 9, 2012 at 10:32 PM, Andrew Thule <thulester at gmail.com> wrote:
> > Chris, thank you for taking time to lay out your position.  (Comments
> > inline)
> > 
> > On Thu, Nov 8, 2012 at 2:16 PM, Chris Little <chrislit at crosswire.org> 
wrote:
> >> The problem here is that you are employing CrossWire's mailing list to
> >> publicize the dissemination of a copyright-violating work. You are
> >> breaking
> >> the law and you are implicating CrossWire in your crime.
> >> 
> >> If you refuse to accept what you have repeatedly been told here, I would
> >> ask that you at least cease from using CrossWire to publicize your
> >> illegal
> >> activities. If you refuse, I will pursue your removal.
> > 
> > Chris, simply asserting that copyright has been violated does not make it
> > so.  I've presented a defence which you and others have ignored. I did
> > this
> > so folks who read this list can judge for themselves and I've posted links
> > to the law itself and quoted the relevant sections.
> > 
> > I understand you disagree, but don't simply accuse me of something without
> > dealing with the defence.  HOW HAVE I BROKEN THE LAW?
> > 
> > DSS Translations produced as the result of research/academics are either
> > exempt from copyright or not.
> > 
> > I've posted links to both US and Canadian the law which exempts academic
> > work as 'fair use' (once scholarly work is published consent is
> > automatically implied).
> > 
> > For me to have broken the law it needs to be shown how the academic
> > provision stated clearly in the law doesn't apply to translations
> > published
> > in scholarly journals. Academic work is except from copyright once it is
> > published!
> > 
> > But let's suppose that weren't true.  Even Copyright work can be
> > reproduced
> > as a derivative work so long as the the original work is sufficiently
> > transformed and serves some purpose.  I've not only cited how book authors
> > using the DSS have used translations not their own for commercial
> > purposes,
> > but disclaimed I have any such designs and I openly acknowledge the
> > original translators.
> > 
> > Even if we assumed falsely that published academic work could be protected
> > copyright, for my actions to have illegal the module would have to be NOT
> > a
> > derivative work!
> > 
> >> The crux is that you are the one who does not understand copyright law.
> >> No
> >> one other than you has said anything incorrect or false with regards to
> >> copyright and fair use. (Greg did misidentify copyright violation (a
> >> legal
> >> matter) as plagiarism (an academic honesty matter) but aside from
> >> incorrect
> >> terminology nothing he said was wrong.)
> > 
> > I've posted both Canadian and American copyright law in previous posts.
> > Both Canadian and American copyright law provide for derivative work and
> > copyright exemptions because the source is published scholarship.  Use of
> > 'translations' produced as a result of academic/scholastic research is NOT
> > the same as simply PLAGIARISING someone else's (commercial) bible IF
> > academic/scholastic research IS exempt from copyright - which it is.
> > 
> >> A derivative work may not legally be produced without valid license to do
> >> so. The author of a work upon which a derivative work is based still owns
> >> copyright on the derivative work.
> > 
> > Correct.  What constitutes 'valid license' according to US law?
> > http://en.wikipedia.org/wiki/Derivative_work
> > 
> > Two things:
> > 1. Transformativeness:  Notice "The use must be productive and must employ
> > the quoted matter in a different manner or for a different purpose from
> > the
> > original. ...[If] the secondary use adds value to the original--if the
> > quoted matter is used as raw material, transformed in the creation of new
> > information, new aesthetics, new insights and understandings--this is the
> > very type of activity that the fair use doctrine intends to protect for
> > the
> > enrichment of society."
> > 
> > 2. Copyright protection: By crediting the original translators, their
> > original copyright is being honoured but the changes must serve some
> > purpose (preferably not a commercial one).
> > 
> > Both hold true here.
> > 
> > I agree with your point, but you seem be denying one or both of the above
> > principles are true in this case.
> > 
> >> There are absolutely no special rules pertaining to academic work. If a
> >> work is copyrighted, it is copyrighted. It is equally protected if it is
> >> produced in an academic setting or for an academic audience or if it is a
> >> new Harry Potter novel. The law sees no difference.
> > 
> > Except that materials PUBLISHED in academic, scientific, or research
> > publications implicitly contain permission to re-use.  'Discoveries in the
> > Judean Desert' is an academic publication used to convey the results of
> > DSS
> > research.  Therefore once a text is published, implicit consent is
> > established by law to allow further use of the text, and thus permission
> > does not need to be obtained to use the text further, nor is there need to
> > engage copyright.  The purpose of the law it to protect the creation of
> > culture, not to establish the ownership of facts.  Translating ancient
> > text
> > as an act of scholarship is NOT the creation of culture!
> > 
> > The US Law that imposes these natural limitations on copyright (called
> > fair
> > use) also outline the four criteria here:
> > http://www.law.cornell.edu/uscode/text/17/107
> > 
> > 1) the purpose and character of the use, including whether such use is of
> > a
> > commercial nature or is for nonprofit educational purposes;
> > 
> > Is the production of this module going to detract from the competitive
> > advantage of the translators to do research or the publishers of DJD to
> > sell DJD volumes?
> > NO!
> > 
> > (2) the nature of the copyrighted work;
> > 
> > IS THE RESULT OF SCHOLARSHIP!
> > 
> > (3) the amount and substantiality of the portion used in relation to the
> > copyrighted work as a whole; and
> > 
> > Since only the a tiny portion of the DJD translations have been used
> > (namely only the biblical ones) the amount or portion that have been used
> > in minor.
> > 
> > (4) the effect of the use upon the potential market for or value of the
> > copyrighted work.
> > IS Negligible.
> > 
> > Your example of using a Harry Potter novel which is a commercial endeavour
> > and not published scholarship shows you don't understand the legal
> > principles of fair use!  Harry Potter is culture creation, the invention
> > of
> > some ones creativity for commercial gain.  The translation of ancient
> > texts
> > and publication in academics sources is NOT.
> > 
> > For my position to be wrong there would need to be the expectation that
> > DJD
> > was not produced for the purposes of research.
> > 
> >> Furthermore, you are in no way entitled to pretend that you are producing
> >> work for educational purposes. You are not producing work for an academic
> >> institution. You are not producing work for classroom instruction. No
> >> court
> >> in any country anywhere would deem your actions to fall under academic
> >> fair
> >> use. Those uses are themselves extremely limited. I could not, for
> >> example,
> >> photocopy a textbook (or extensive portions of a textbook) to disseminate
> >> to a whole class of students. Under fair use, I generally DO scan and
> >> post the first week or two of readings for my students since they're
> >> still awaiting the arrival of their textbooks. And under fair use, I
> >> sometimes distribute copies of short texts or songs that are part of a
> >> larger work to my students. But those are excerpts (they make up a small
> >> portion of my course and what I copy is a small portion of the whole
> >> book/album that I copy from) and that is in an academic setting (your
> >> posting is not).
> > 
> > I'm not.  You misunderstand.
> > 
> > Copyright law is about protecting the source!  The sources have been
> > produced as a result of scholarship, and published in a scholarly journal.
> > 
> > The only thing I've said about my goals was that it was not commercial
> > which speaks to the motivation of producing a derivative work.  I'm not
> > selling this module - so clearly it's not commercial, but whether or not
> > that's true, the source, the thing we're arguing about IS the result of
> > scholarship.
> > 
> >> If I photocopy the entirety of The Hobbit or copy a DVD of Citizen Kane
> >> or
> >> bring a video camera into a theater to record the latest James Bond
> >> movie,
> >> I'm committing copyright infringement. I would be breaking the law in all
> >> of those cases because I do not have the RIGHT to COPY. Whether I do the
> >> copying for my own personal use is irrelevant. It's illegal.
> > 
> > Well .. again The Hobbit is not scholarly work, published to advanced
> > knowledge.  Rather it's the cultural contribution of an author seeking
> > commercial benefit.  Because the intent here is to advanced culture and
> > not
> > knowledge, the rights of the author are protected.  However, scholars are
> > not denied the right to use the work of other scholars for the sake of
> > advancing knowledge.  Copyright is not designed to restrict the
> > advancement
> > of knowledge.
> > 
> > God's peace.
> > 
> > ~A
> > 
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