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

[Chris Little]

On 11/09/2012 08:32 PM, Andrew Thule 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
> <mailto: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.

Simply asserting that you have not broken the law does not make it so. I 
would guess that most of us who have responded to you had already read 
the US copyright code. It should at least strike you as odd that 
literally no one has come to the defense of your position on copyright. 
Were that the case for something I had claimed, it would cause me to 
pause and consider whether I was the one with the misunderstanding.

> I understand you disagree, but don't simply accuse me of something
> without dealing with the defence.  HOW HAVE I BROKEN THE LAW?

You are engaging in willful copyright infringement.

> DSS Translations produced as the result of research/academics are either
> exempt from copyright or not.

Translations are protected by copyright until such copyright expires or 
until they are deliberately placed in the public domain. Whether they 
are 'academic' or not is irrelevant. Nothing in US copyright law 
suggests that having been produced in/for academia should remove 
copyright protection of a work.

> 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).

That last assertion is ridiculous and personally offensive. The excerpts 
you posted indicate that academic USE is a factor in permissible fair 
use. It doesn't suggest that you have an automatic right to rip off 
academic publications.

> 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!

That is wholly ridiculous and entirely false. Any creative work 
(academic or not) is protected by copyright law once it is CREATED. 
(Publication is also irrelevant.) I have no clue where you would acquire 
such a patently false idea that academic work is exempt from copyright 
protection other than your desire to believe what you wish were the case.

> 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.

A derivative work may not be produced without the consent of the owner 
of the copyright on the original work. 'Copyright' means that the owner 
of the copyright has the RIGHT to COPY a work as well as to assign that 
right to third parties. You have ABSOLUTELY NO LEGAL RIGHT to create a 
derivative work without the consent of the owner of the copyright on the 
original works you are using.

The exception is fair use, which must be of limited character relative 
to the whole (criterion 3 of Title 17 § 107). When your derivative work 
consists entirely of others' works and large portions of their works, 
you are clearly outside the realm of fair use.

> 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!

To state again, published academic work is protected by copyright. And 
your derivative work is being produced illegally (since you have not 
sought permission to produce it). AND the portions of that derivative 
work that were part of the original works would still be copyrighted by 
their original owners even if you had permission to quote them in your 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.

No. It is not.

>     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.

Permission to produce the derivative work is the only thing that can 
constitute a valid license in a case of such broad and 
non-transformative copying as you have performed. Basically everything 
substantive you said above was false. Copyright is not honored by 
'crediting the original translators.' Copyright is honored by NOT 
COPYING WITHOUT PERMISSION.

Are you trolling? Honestly I don't comprehend how a person could make as 
many statements so antithetical to fact and reality unless it were by 
intention.

>     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!

This is all entirely false.

> 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!

I think OUP would disagree. It's fundamentally not your choice to make.

Does it not strike you as odd that OUP have copyright notices in their 
volumes of the DJD? How can there be copyright notices if the text is in 
the public domain, as you imagine?

> (2) the nature of the copyrighted work;
>
> IS THE RESULT OF SCHOLARSHIP!

Scholarship is protected by copyright.

> (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.

First, that is actually quite a substantial amount. And furthermore, the 
quantity of your text that consists of copied text marks your use 
thereof as beyond fair use.

> (4) the effect of the use upon the potential market for or value of the
> copyrighted work.
> IS Negligible.

OUP would disagree.

> 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.

As a matter of copyright law as it pertains to copyright protection, 
there is no distinction of commercial vs. acadmic or 'cultural' vs. 
'research'. That just doesn't exist.

I presume you also believe that we can legally publish copies of the 
NIV, the NRSV, the NA28 and the ECM since it would be for purposes of 
non-commercial scholarship. (We cannot. Those are all protected by 
copyright.)

>     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.

Copyright law is not about protecting the source, whatever you think 
that means. Copyright law grants a monopoly on reproduction to the 
creator of a creative work (which legally includes translations).

>     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.

If I work in Tolkien studies, then the Hobbit is my basis for advancing 
knowledge. In that case, presumably you believe I can copy the entirety 
of the Hobbit into a derivative work, without license.



You are severely misinformed about all aspects pertaining to copyright. 
It would be highly advisable that you take the warnings of those of us 
who have responded to you seriously. We have all been at this a lot 
longer than you, and we have much more experience working with copyright 
and copyright holders than you.

I have a couple of publications myself. Those works are all essentially 
academic in nature: one is a translation of a public domain text, the 
others are original works. I own their copyrights in all cases. Were you 
to republish those works without my permission, I would have a really 
easy court case against you.

A final, very important aspect of fair use that you need to bear in mind 
is that it is not defined by statute. It is defined gradually by case 
law. You'll notice that US Title 17 § 107 does not state that its four 
criteria (purpose/character of the copy, nature of the work, amount 
copied, and market effects) are determinative of fair use. They are 
'factors to be considered', and specifically they would be considered in 
a court of law if the party whose work you are copying believes you were 
exceeding the limits of fair use. OUP has a whole legal department. You 
would be trivial to defeat in court, especially because your position is 
wholly indefensible and your infringement is willful.

--Chris