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How does an automated test suite that downloads a mere few seconds of data simply for the purposes of software testing constitute infringement and not fair use?

How does an automated test suite that downloads a mere few seconds of data simply for the purposes of software testing constitute infringement and not fair use? We've allowed this to go way too far. There is no way the RIAA can prove any sort of damages from this. This is an abuse of the copyright system for the sole purpose of attacking a tool they are unhappy with. Given the RIAA's history, are we in any way surprised by this? It is extremely important to recognize in all this that as a country formed during the enlightenment, the founders of the US understood the importance information sharing holds for a free society. Copyright is intended to protect against wonton plagiarism and illegal redistribution. Fair use provisions exist to prevent abuse of this system and allow for legal redistribution and derivative works. These concepts. Patents and copyrights are at their core, systems designed to encourage distribution, not restrict it. Groups like the RIAA, Disney, the MPAA, and others are chipping away at this.

TylerE 6y ago
On what grounds do you think it would constitute fair use? Fair use isn't some magic pixie dust that lets you do whatever you want with someone else's copyrighted material. Fair use is a defense you can raise in court, _after_ you have been sued. It is not a presumptive right.
- labawi 6y ago
  I was quite surprised by your claim, as I'm quite sure it is a right in EU and other countries. It seems you have been correct, though not any more. See quote[1]: The U.S. Supreme Court has traditionally characterized fair use as an affirmative defense, but in .. (2015) .. U.S. Court of Appeals .. concluded that fair use was not merely a defense .. but was an expressly authorized right, and an exception to the exclusive rights granted to the author of a creative work by copyright law. [1] https://en.wikipedia.org/wiki/Fair_use https://en.wikipedia.org/wiki/Fair_use
  - gamblor956 6y ago
    No, Tyler's still correct. Fair use is still a defense to copyright violations, not a right. The 9th Circuit did not hold that fair use was a right in that case (the dancing baby case), only that a copyright holder must consider whether the alleged violation was potentially fair use before filing a lawsuit. Importantly, the copyright holder is only required to consider whether the violation is fair use. They can still decide that it is not, and proceed with their lawsuit, with the only additional effort required being to state in their claim that they considered fair use and decided that the violation was not fair use. (Note: while the 9th Circuit precedent is limited to the West Coast of the US, because most tech companies are HQ'd in CA or WA, so as a practical matter this case governs the internet.)
    - labawi 6y ago
      I'll quote from the first paragraph of court's opinion: We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law. [2] Note that the case was about abuse of DMCA takedowns by copyright holders if not considering fair use. Judge considers fair use as authorized by law, which I would interpret as right, not defense. Another quote: We agree with the district court and hold that the statute unambiguously contemplates fair use as a use authorized by the law. [2] Fair use is not just excused by the law, it is wholly authorized by the law [2] From previously quoted wikipedia article, the paragraph continues: "Fair use is therefore distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright." [1] As for plaintiff considerations, IMO, of course plaintiff is required to argue it's standing, otherwise the case is thrown out, or in this case DMCA is abused. Normally the first bar is to make a coherent argument, then the court gets to decide whether your opinion is right, but that does not lower the defendant's rights to a "defense", even if they are a defense. [2] Court's decision, hopefully: https://scholar.google.com/scholar_case?case=12567649168680108221 https://scholar.google.com/scholar_case?case=125676491686801...
      - gamblor956 6y ago
- deelowe 6y ago
  > On what grounds do you think it would constitute fair use? It meets at least 2 of the fair use factors: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; > Fair use isn't some magic pixie dust that lets you do whatever you want with someone else's copyrighted material. I didn't claim it was? I said this specific use seems to be a fairly good example. See above factors. > Fair use is a defense you can raise in court, _after_ you have been sued. It is not a presumptive right. Not correct. This has been challenged in court and it was found that fair use is a right and not simply a defense.
- romanoderoma 6y ago
  > On what grounds do you think it would constitute fair use? Can you take a few seconds of a video and show it to a class of students for educational purpose? Yes, you can Can you do the same to test a software feature? Yes, you can The video is never used or displayed for its commercial value, but only to learn something from it.

TylerE 6y ago

On what grounds do you think it would constitute fair use? Fair use isn't some magic pixie dust that lets you do whatever you want with someone else's copyrighted material. Fair use is a defense you can raise in court, _after_ you have been sued. It is not a presumptive right.

labawi 6y ago
I was quite surprised by your claim, as I'm quite sure it is a right in EU and other countries. It seems you have been correct, though not any more. See quote[1]: The U.S. Supreme Court has traditionally characterized fair use as an affirmative defense, but in .. (2015) .. U.S. Court of Appeals .. concluded that fair use was not merely a defense .. but was an expressly authorized right, and an exception to the exclusive rights granted to the author of a creative work by copyright law. [1] https://en.wikipedia.org/wiki/Fair_use https://en.wikipedia.org/wiki/Fair_use
- gamblor956 6y ago
  No, Tyler's still correct. Fair use is still a defense to copyright violations, not a right. The 9th Circuit did not hold that fair use was a right in that case (the dancing baby case), only that a copyright holder must consider whether the alleged violation was potentially fair use before filing a lawsuit. Importantly, the copyright holder is only required to consider whether the violation is fair use. They can still decide that it is not, and proceed with their lawsuit, with the only additional effort required being to state in their claim that they considered fair use and decided that the violation was not fair use. (Note: while the 9th Circuit precedent is limited to the West Coast of the US, because most tech companies are HQ'd in CA or WA, so as a practical matter this case governs the internet.)
  - labawi 6y ago
    I'll quote from the first paragraph of court's opinion: We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law. [2] Note that the case was about abuse of DMCA takedowns by copyright holders if not considering fair use. Judge considers fair use as authorized by law, which I would interpret as right, not defense. Another quote: We agree with the district court and hold that the statute unambiguously contemplates fair use as a use authorized by the law. [2] Fair use is not just excused by the law, it is wholly authorized by the law [2] From previously quoted wikipedia article, the paragraph continues: "Fair use is therefore distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright." [1] As for plaintiff considerations, IMO, of course plaintiff is required to argue it's standing, otherwise the case is thrown out, or in this case DMCA is abused. Normally the first bar is to make a coherent argument, then the court gets to decide whether your opinion is right, but that does not lower the defendant's rights to a "defense", even if they are a defense. [2] Court's decision, hopefully: https://scholar.google.com/scholar_case?case=12567649168680108221 https://scholar.google.com/scholar_case?case=125676491686801...
    - gamblor956 6y ago
deelowe 6y ago
> On what grounds do you think it would constitute fair use? It meets at least 2 of the fair use factors: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; > Fair use isn't some magic pixie dust that lets you do whatever you want with someone else's copyrighted material. I didn't claim it was? I said this specific use seems to be a fairly good example. See above factors. > Fair use is a defense you can raise in court, _after_ you have been sued. It is not a presumptive right. Not correct. This has been challenged in court and it was found that fair use is a right and not simply a defense.
romanoderoma 6y ago
> On what grounds do you think it would constitute fair use? Can you take a few seconds of a video and show it to a class of students for educational purpose? Yes, you can Can you do the same to test a software feature? Yes, you can The video is never used or displayed for its commercial value, but only to learn something from it.