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Unread 03-01-2012, 19:40
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Tristan Lall Tristan Lall is offline
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Re: How do I get the encrypted competition manual?

Quote:
Originally Posted by GaryVoshol View Post
Tristan, so because you won't get caught or there may be no consequences, that makes it OK?
Not exactly. It's more like (in some hypothetical scenario), you're unlikely to get caught or suffer consequences, and it's OK. They're related, but not causally in the way that you propose.

The big question is whether it's right—and that's not the question that the law tries to answer directly. Instead, the law proposes a series of requirements that—given certain assumptions—balance the private and social costs and benefits. It then tries to come to a compromise that can be understood and enforced.

It's fundamentally different from the FIRST rules mindset, because there isn't even the remotest attempt to cover every scenario with a definitive answer as to what's right. Instead, the law intentionally defers to the courts to sort out tough cases. (It's much easier to be definitive when the scope is narrow, you update the rules every year, and you don't have a thousand years of common law precedent to consider.)

Furthermore, copyright law has evolved to rely upon the lack of economic benefit in pursuing de minimis infringement as a way limiting the number of infringement suits in a way that is acceptable to the public. In effect, if every possible infringement were prosecuted fully, we'd make tortfeasors of us all—and I suspect we'd be much less willing to allow a monopoly on the rights to creative works under those circumstances. Copyright as we know it would not be sustainable in that scenario. More to the point, society supports this limiting effect because it does not view every infringement as wrong, even though they are inherently illegal.

Fair use is an affirmative defence: you employ it when you're accused of infringement. (In other words, you've been caught, and consequence #1 is that you're on trial.) In effect, by claiming fair use, you're articulating why some alleged infringements are not wrong, and are instead justified by their benefits to society. Strip away all the legalese, and that's what you've got: a belief that something is OK because it's better for society than an alternative. If your belief is correct, then that makes it right.1 If your belief is incorrect (particularly in the eyes of the judge)...prepare for more consequences.

Quote:
Originally Posted by GaryVoshol View Post
Fair use covers excerpts of material, not the whole thing. That's why it's OK for us to quote a rule from the manual when answering a question here on CD.
Excerpts are generally much easier to justify as fair use than whole works, but sometimes the whole work can be used.

1 That's not to say it's necessarily optimal; just better than the alternative.
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