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 Ravenous D wrote:

 Absolutionis wrote:

 Ravenous D wrote:
Im just going to leave this here

I really, really, hate that phrase. It adds nothing to the conversation.

What other then the notice by the then owner of GW claiming copyright is bs because it screws small business?

Its obviously to point out the hypocrisy of GWs recent legal insanity.

Or are you really going to tell me that GW hasn't stolen an idea ever?

That is also over thirty years old and two buyouts ago.

You should really be railing against Google and their code of conduct and motto of DON'T BE EVIL
http://investor.google.com/corporate/code-of-conduct.html#toc-I

They don't have any problem throwing people under the bus and punishing others for guilt by association.

nkelsch wrote:

cowen70 wrote:

nkelsch wrote:

 Peregrine wrote:



So yes, it has to be settled in court to be 100% sure, but Faeit 212's use of copyrighted material passes all of the tests without any real room for debate.

Including the rumored 21 full pages photographed of the Imperial Armorer book?

If true, double digit full page images of copyrighted publications seems hard to twist into legitimate. It doesn't seem reasonable to photograph much more than the cover and ToC when reviewing a copyrighted publication.

Was reading Faeit 212 regularly and I never spotted that. It was rumours and comment, and quite specifically strayed away from negativity and tried to remain objective.

The URL in one of the takedown notices was referencing imperial armorer which people said were a ton of photos including detailed synopsis. So depending what the content was, it may or may not have been over the line... But the arguments of "it is just white dwarf catalog pages" doesn't apply to rule books or dozens of full pages opposed to small thumbnails of subparts of pages. Of course this is all going by rumors and other people's comments on what was contained.

And when you mix one more substantial and potentially legitimate complaint with a bunch of BS, then google is going to say "they might be on to something" and do what hosting companies do best... Throw you off their server regardless who is right, since they basically have a right to deny service based on almost anything due to the EULA you agree to.

If GW wants to squash their own product and prevent advertisement or exposure of their products... Let them? Who cares?

Well yeah OK they shouldn't have had that on. I find it difficult to believe they wouldn't have taken it down if asked though because it certainly wasn't the focus of what they do, I've been checking in there every day for months, now admittedly I would have skipped past IA because I'm not interested being only into strict 40k but all I ever saw was stuff that just pumped up the next big release and comment as said.

But you know yeah pull of that crap that shouldn't be shown, don't take down the whole damn blog.

Its a good case for having your own website for a blog that can't be taken down so easily. It takes all of a few hours to knock up a blog and whack it out after you've got domains and stuff sorted.

nkelsch wrote:
Of course this is all going by rumors and other people's comments on what was contained.

It was there. It was originally posted elsewhere and Faeit 212 just compiled it all into a single post, but it had page scans* of some of the units as well as text descriptions** of others.

*Potentially illegal use of copyrighted material.

**Perfectly legal use of material that can't be copyrighted.

If GW wants to squash their own product and prevent advertisement or exposure of their products... Let them? Who cares?

It's an issue because GW is going beyond doing things like declining to put up previews on their own sites and abusing the DMCA system to get rid of posts that were entirely legal. It's yet another case of GW saying "we have more money to spend on lawyers than you, we decide what is and isn't legal", and that's a serious problem.

 Peregrine wrote:

 Janthkin wrote:

 Peregrine wrote:
[You might want to go read about what "fair use" means. Posting limited parts of a magazine (which have no financial value) for purposes of comment on an important (for the gaming industry) news event is textbook fair use.

"Textbook" fair use? Hardly. This isn't YMDC, and "fair use" is almost always a fact-based issue in copyright disputes; it's not nearly as clear-cut as you keep trying to portray it.

It really is. Look at the laws for fair use.

Thank you, I'm quite familiar with them. I disagree with your summary of the facts, and with your legal conclusions.

So yes, it has to be settled in court to be 100% sure, but Faeit 212's use of copyrighted material passes all of the tests without any real room for debate.

Except, of course, when reasonable people can disagree. That leaves an awful lot of room for debate.

nkelsch wrote:

 Peregrine wrote:



So yes, it has to be settled in court to be 100% sure, but Faeit 212's use of copyrighted material passes all of the tests without any real room for debate.

Including the rumored 21 full pages photographed of the Imperial Armorer book?

If true, double digit full page images of copyrighted publications seems hard to twist into legitimate. It doesn't seem reasonable to photograph much more than the cover and ToC when reviewing a copyrighted publication.

cover would be better than the whole thing, a compromise of sorts.

 Peregrine wrote:

nkelsch wrote:
Of course this is all going by rumors and other people's comments on what was contained.

It was there. It was originally posted elsewhere and Faeit 212 just compiled it all into a single post, but it had page scans* of some of the units as well as text descriptions** of others.

*Potentially illegal use of copyrighted material.

**Perfectly legal use of material that can't be copyrighted.

Without the text in front of us, how can you decide what is a "perfectly legal use"? If there was solely a rephrasing of rules text, presented in a manner that indicated different selection criteria (or if there was solely a recitation of facts in which function dictated form), such a rephrasing may indeed have been fine. But we don't have the text in front of us; it could just as easily have been straight copied text from a book.

We should fight back against GW and not buy anything for a while!

 Janthkin wrote:
Without the text in front of us, how can you decide what is a "perfectly legal use"?

Because I read the posts before they were taken down (I pre-ordered IA12 and I'm tired of waiting for it to arrive). There was no direct copy/pasting from the rulebook, all of the text was describing the rules in the author's own words (for example, describing a LRBT as "AV 14/13/12, battlecannon, hull LC, X points").


Automatically Appended Next Post:

 Janthkin wrote:
I disagree with your summary of the facts, and with your legal conclusions.

What exactly is there to disagree with?

 Peregrine wrote:

 Janthkin wrote:
I disagree with your summary of the facts, and with your legal conclusions.

What exactly is there to disagree with?

Hit "Filter thread" by my name, and reread my earlier posts talking with Sean.

To clarify the IA12 issue: there may have been slight differences, but this is pretty much what Faeit 212 posted for the text part (copy/pasting from this source): http://darogscompany.blogspot.com/2013/04/imperial-armour-12-fall-of-orpheus.html

So lots of rules being given, but it's obviously written by someone summarizing the contents of the book in their own words, not a direct copy/paste.


Automatically Appended Next Post:

 Janthkin wrote:
Hit "Filter thread" by my name, and reread my earlier posts talking with Sean.

Which is just the stuff about the supposed impact on the value of WD, which, as I've pointed out, is based on the incorrect assumption that WD is the first source of that information and people buy WD to get it. In reality GW's own website is the first source for that information, and the catalog pages are just advertising, not content.

 Peregrine wrote:

 Janthkin wrote:
Hit "Filter thread" by my name, and reread my earlier posts talking with Sean.

Which is just the stuff about the supposed impact on the value of WD, which, as I've pointed out, is based on the incorrect assumption that WD is the first source of that information and people buy WD to get it. In reality GW's own website is the first source for that information, and the catalog pages are just advertising, not content.

And you've got a couple of assumptions embedded in that statement as well that we've already disagreed on. 1) The images were posted before they were available on GW's website; this WAS the first look at them. That they later became available from GW's website doesn't alter the original issue, nor does it excuse wholesale copying of images even if that weren't true; pictures posted on the web are copyrighted, too. 2) Who's to say that people don't buy WD for the pictures of new models? I know people who have done precisely that.

I'm not sure where the idea that "advertising != copyrightable content" came from; it's incorrect.

 Janthkin wrote:
1) The images were posted before they were available on GW's website; this WAS the first look at them.

That's not the point. The value of White Dwarf depends on whether or not White Dwarf is the first look, and it isn't. No matter what happens with leaked images White Dwarf can't be the first look because GW posts them online before WD is available. Let's look at the dates, taken directly from GW's own website:

April 26th: "White Dwarf out tomorrow", cover posted announcing the new releases. http://www.games-workshop.com/gws/wnt/blog.jsp?pid=8900042

April 27th: "New High Elves", all new releases up for pre-order complete with prices and descriptions. http://www.games-workshop.com/gws/wnt/blog.jsp?pid=8900048

So the earliest you could buy White Dwarf was April 27th, at which point all of the information contained in the scanned catalog pages was already available for free on GW's own website. There is no plausible argument that posting the catalog pages had any impact on the value of that White Dwarf issue.

I'm not sure where the idea that "advertising != copyrightable content" came from; it's incorrect.

I didn't say that. Obviously advertising is copyrightable, in fact fair use isn't even relevant unless it is copyrighted material. What I said was that the catalog pages are not content (as in the things you buy a product to get), they're advertising that someone put in the content to get you to buy something else. Arguing that seeing them early lowers the value of White Dwarf makes about as much sense as saying that seeing the walmart ad on page 6 of the newspaper lowers its value.

 Peregrine wrote:

 Janthkin wrote:
1) The images were posted before they were available on GW's website; this WAS the first look at them.

Completely false. Let's look at the dates, taken directly from GW's own website:

April 26th: "White Dwarf out tomorrow", cover posted announcing the new releases. http://www.games-workshop.com/gws/wnt/blog.jsp?pid=8900042

April 27th: "New High Elves", all new releases up for pre-order complete with prices and descriptions. http://www.games-workshop.com/gws/wnt/blog.jsp?pid=8900048

And, of course, the DMCA notice was dated April 22. The images were posted on Faeit's website before the magazine was available, and before the images were available on GW's website.

Arguing that seeing them early lowers the value of White Dwarf makes about as much sense as saying that seeing the walmart ad on page 6 of the newspaper lowers its value.

Strange you should choose that example. We used to see that precise scenario every year, when it came to Black Friday ads getting leaked before publication. A fair amount of contentious DMCA activity resulted in those situations, too.

 Janthkin wrote:
And, of course, the DMCA notice was dated April 22. The images were posted on Faeit's website before the magazine was available, and before the images were available on GW's website.

I edited that post to clarify: it doesn't matter whether or not Faeit 212 posted the images before a GW source, what matters is whether or not White Dwarf had commercial value as a first look at the images. And the simple fact is that it didn't, by the time anyone could buy the White Dwarf issue GW had already posted the images (or equivalent ones with the same function) on their own website. GW's own actions removed any commercial value from the White Dwarf catalog pages, so it would be impossible for Faeit 212 to reduce it.

You would have a point if WD was available before the GW website images and actually was an exclusive first look (though it wouldn't necessarily rule out fair use), but that's not the case here. GW's obsession with hiding new releases until pre-order day has completely destroyed their case.


Automatically Appended Next Post:

 Janthkin wrote:
Strange you should choose that example. We used to see that precise scenario every year, when it came to Black Friday ads getting leaked before publication. A fair amount of contentious DMCA activity resulted in those situations, too.

And in at least one case they backed down as soon as the target threatened to fight it in court: http://news.cnet.com/2100-1023-976296.html . Not that it matters, since the information only matters for a few days even an illegitimate DMCA notice gets it taken down long enough that the final outcome doesn't matter.

Also, the fact that other companies abuse DMCA notices to silence stuff they don't like doesn't justify GW's actions.

 Peregrine wrote:

 Janthkin wrote:
And, of course, the DMCA notice was dated April 22. The images were posted on Faeit's website before the magazine was available, and before the images were available on GW's website.

I edited that post to clarify: it doesn't matter whether or not Faeit 212 posted the images before a GW source, what matters is whether or not White Dwarf had commercial value as a first look at the images. And the simple fact is that it didn't, by the time anyone could buy the White Dwarf issue GW had already posted the images (or equivalent ones with the same function) on their own website. GW's own actions removed any commercial value from the White Dwarf catalog pages, so it would be impossible for Faeit 212 to reduce it.

It's an argument. Another would be to note that some people do, in fact, prefer hard copy to pictures on the Internet, and copyright follows expression in a particular medium - GW has separately enforceable copyrights to their online presentation & their magazine.

I have no idea how a court would choose to rule, should GW have launched a lawsuit against Faeit & Faeit offered a "Fair use" affirmative defense. It's a nuanced area of the law, heavily dependent on the facts in each case, the case law in each circuit, and how much the judge's clerk(s) know about copyright law. But to present it as being as open-and-shut as you (and others) in the thread have been doing is to trivialize the legitimate legal issues here, and potentially give readers a skewed view of copyright & fair use.

 Peregrine wrote:
Also, the fact that other companies abuse DMCA notices to silence stuff they don't like doesn't justify GW's actions.

No strawmen, please. "Abuse" is a pretty strong word for a scenario never tested in court; I have no interest in "justify"ing anybody's actions.

 Janthkin wrote:
Another would be to note that some people do, in fact, prefer hard copy to pictures on the Internet, and copyright follows expression in a particular medium - GW has separately enforceable copyrights to their online presentation & their magazine.

You could make the argument that some people prefer hard copy to online, but then you'd have hard time making the argument that an online source could ever damage the value of a hard copy one. The kind of person that rejects GW's website pictures in favor of hard copies isn't going to care that some random blog has even lower quality images than GW.

 Janthkin wrote:

 Peregrine wrote:

 Janthkin wrote:
1) The images were posted before they were available on GW's website; this WAS the first look at them.

Completely false. Let's look at the dates, taken directly from GW's own website:

April 26th: "White Dwarf out tomorrow", cover posted announcing the new releases. http://www.games-workshop.com/gws/wnt/blog.jsp?pid=8900042

April 27th: "New High Elves", all new releases up for pre-order complete with prices and descriptions. http://www.games-workshop.com/gws/wnt/blog.jsp?pid=8900048

And, of course, the DMCA notice was dated April 22. The images were posted on Faeit's website before the magazine was available, and before the images were available on GW's website.

Arguing that seeing them early lowers the value of White Dwarf makes about as much sense as saying that seeing the walmart ad on page 6 of the newspaper lowers its value.

Strange you should choose that example. We used to see that precise scenario every year, when it came to Black Friday ads getting leaked before publication. A fair amount of contentious DMCA activity resulted in those situations, too.

That's what is going on. The fact of the matter is that the WD was released to the web 5 days before it was officially released. That includes the prices (US, I think) Model pics, availability, stats, artwork etc... If GW wanted the WD to be released on the 22nd, they would have done so. GW doesn't seem to have a problem with the rumors (It helps them advertise, in a fashion) whereas the WD was specifically intended to go on sale at a fixed period. A bunch of people speculating about rumored stuff on the internet is hardly going to hurt GeeDubs, while leaked images of their property probably will.

2 cents.

But to present it as being as open-and-shut as you (and others) in the thread have been doing is to trivialize the legitimate legal issues here, and potentially give readers a skewed view of copyright & fair use.

Been busy the past couple days...but that is exactly the thing...

DMCA takedown notices are only to be issued when it is an open and shut case. If it is not an open and shut case (as is the case here) the lawyer has to make a false statement claiming it is open and shut case on behalf of their client...which is illegal.

Because their is a question of fair use, it is not open and shut - regardless of any claims GW might have to the contrary. There exists a substantial amount of case law that supports this issue. The only way you can argue that the DMCA notice would be valid is if you were to discount the potential news value of the posts. With fair use in mind though, the proper course of action under the law would have been for GW to file for an injunction through the courts and have a judge eveluate the nature of the amount of material versus its news worthiness. If the judge agrees that harm could be done to White Dwarf, than he would file an order pending a legal case against Faeit and with Google (the host).

That the DMCA is open to being abused and others might abuse it does not mean that we should ignore it being abused.

 Timmy149 wrote:

 Zweischneid wrote:

 Timmy149 wrote:

 Gorlack wrote:

 Timmy149 wrote:


I see what everybody else means by the legality of the image posting. I agree with what you are saying, but I still don't think that GW should have attacked google and Natfka.

What?! When did GW attack google?! Think you have misunderstood the situation here... And besides, since BoLS wasn't taken down by a DMCA act I don't think we can assume that Faeit was either...

GW had a DCMA complaint put through to google. BoLS was unrelated, Faeit was taken down by google following the DCMA.

BoLS was possibly down because the blogger-account (!) of nafta was taken down/locked/whatever. That account had author-permissions to both Faeit212 and BOLS.

Nafta's posts on BoLS no longer link to any active account - http://www.belloflostsouls.net/2013/04/faeits-40k-rumor-tarot-visions-and_28.html

BoLS went down due to unrelated incidences. their physical server went down at the same time (coincidence, LOL) It's back up now.

You are posting that as if you know exactly what happened. That is not what Larry Vella has said, so you may want to check what you are presenting as if it is a fact. Trust me, it was not a weird coincidence.

weeble1000 wrote:

 Timmy149 wrote:


BoLS went down due to unrelated incidences. their physical server went down at the same time (coincidence, LOL) It's back up now.

You are posting that as if you know exactly what happened. That is not what Larry Vella has said, so you may want to check what you are presenting as if it is a fact. Trust me, it was not a weird coincidence.

I seriously doubt BoLS went down for "server issues". It is Google we are talking about. They host Blogger. Isn't it strange that BoLS went down ecactly the same time as Faeit212 did? And Faeit212 is all over BoLS.

I am sure Google took down BoLS to review its content, while Faeit212 was just deleted.

 Sean_OBrien wrote:
DMCA takedown notices are only to be issued when it is an open and shut case. If it is not an open and shut case (as is the case here) the lawyer has to make a false statement claiming it is open and shut case on behalf of their client...which is illegal.

Because their is a question of fair use, it is not open and shut - regardless of any claims GW might have to the contrary. There exists a substantial amount of case law that supports this issue. The only way you can argue that the DMCA notice would be valid is if you were to discount the potential news value of the posts. With fair use in mind though, the proper course of action under the law would have been for GW to file for an injunction through the courts and have a judge eveluate the nature of the amount of material versus its news worthiness. If the judge agrees that harm could be done to White Dwarf, than he would file an order pending a legal case against Faeit and with Google (the host).

Citation, please? I'm familiar with OPG, but I haven't come across much else in the way of DMCA caselaw relating to this topic (and as we already discussed, I don't find OPG to be especially on-point here).

I do discount most of the "news" value of the posts. There wasn't much in the way of news - it was "look, pictures!" and a dump of a bunch of copyrighted images from WD (this time; previously, pictures of pages from IA 12, and etc.).

 Janthkin wrote:

 Peregrine wrote:

 Janthkin wrote:
Hit "Filter thread" by my name, and reread my earlier posts talking with Sean.

Which is just the stuff about the supposed impact on the value of WD, which, as I've pointed out, is based on the incorrect assumption that WD is the first source of that information and people buy WD to get it. In reality GW's own website is the first source for that information, and the catalog pages are just advertising, not content.

And you've got a couple of assumptions embedded in that statement as well that we've already disagreed on. 1) The images were posted before they were available on GW's website; this WAS the first look at them. That they later became available from GW's website doesn't alter the original issue, nor does it excuse wholesale copying of images even if that weren't true; pictures posted on the web are copyrighted, too. 2) Who's to say that people don't buy WD for the pictures of new models? I know people who have done precisely that.

I'm not sure where the idea that "advertising != copyrightable content" came from; it's incorrect.

Janthkin is very much correct to be conservative about making a call on fair use. Such a finding depends on weighing all of the facts, and we really do not have all of the facts.

Copyright Fair Use is a fact intensive inquiry typically involving the weighing of four factors, none of which is determinative on its own, nor dispositive of any other factor. Any such inquiry is naturally fact intensive as it involves a great deal of interpretation and weighing.

However, I will point out that commercial use is not determinative. I essentially said that above, but I think it is important to stress that. Just because you make money doing something does not mean that it cannot be considered fair use. Even if the sole purpose of doing something is to make money, it can still be considered fair use. Again, this is because no one factor is more important than any of the other factors, and no one factor can be used, on its own, to make a determination of fair use.

Edit: Saying that no one factor is more important than any other factor is not entirely accurate. A finder of fact could decide that given the facts a particular factor is very significant and weighs heavily in favor of one party. However, it would be erroneous to base a decision upon that factor alone, ignoring any other factor.

The point of case law like this is to force a fact finder to consider a broad range of important questions that should not be ignored because in so ignoring such a question, one might cease to be fair and/or consistent with the law.

For example, I lied to my wife last weekend. Normally, one would say that lying to one's spouse is wrong, but it might be acceptable given certain circumstances. Let's try to break it into certain factors, so we can make an objective decision about whether it was okay.

The topic of the lie
The scale of the lie
The timing/context of the lie
The emotional impact of exposure

Let's say that the lie was about how my wife looks in a dress.

Topic: Personal Appearance. Well, on its own it could go either way. I mean, it isn't a lie about me sleeping with her sister. But it is also not necessarily a little white lie. See how we can't make a determination on only one factor? If I said the lie was okay because it was about her appearance without considering any other factors, I might get into trouble.

Scale: How badly does she look in that dress? Let's say she looks wretched, like, oh God no! Okay, well then this factor would weigh in favor of not telling the lie. It is pretty big in scale. However, the scale of the lie is also dependent on timing.

Timing: When is the lie told? In what context is it being told? Is my wife at the store picking up a dress for an important dinner party? If so, maybe I should tell her the truth. Are we shopping because she just had a crappy week? Maybe the lie would be okay. Is she pregnant and having trouble finding ANY dress that looks nice? Did she already BUY a dress on sale that could not be returned? Depending on the facts this factor might go either way.

Emotional Impact: How would the lie make her feel should it be exposed? Now, this might seem like the single determinative factor. But consider the emotional impact of the truth AT THE TIME of the lie. Maybe my wife would be very upset about me telling her that the dress she picked out makes her look fat. Maybe she was with her friends at the time of the lie, and it would have been more harmful to tell the truth then, even though if she finds out about the lie she would still pissed about buying a dress that makes her look fat. Maybe my wife would appreciate a white lie to make her feel good, but if she was picking out a dress for an important business function, my honest opinion overrides the ultimately positive emotional impact of the lie.

If I told the lie because I knew it would make her feel good at the time, and only based my decision on that factor, that could potentially cause problems. So I am required to also consider the other factors. The factors are interrelated to a certain extent, and facts can have an impact on one, several, or all factors. The key point is to make sure to walk through the exercise each time I evaluate whether to tell a lie to my wife, so that I always make a complete, objective decision that weighs consistent factors.

 Peregrine wrote:
To clarify the IA12 issue: there may have been slight differences, but this is pretty much what Faeit 212 posted for the text part (copy/pasting from this source): http://darogscompany.blogspot.com/2013/04/imperial-armour-12-fall-of-orpheus.html
So lots of rules being given, but it's obviously written by someone summarizing the contents of the book in their own words, not a direct copy/paste.

Hmm.. False...
There was a QnA and people asked for some of the rules.
Some people, who shall not be named because others might get angry at them, had awesome google-skills and combined the information that could be found on other websites and fora.

That website you linked was not his source.
That website actually "stole" the combined information from Faeit 212.
I know that because:
1. I was following the thread.
2. The QnA-thread was a week before that blog-post.
3. I know the person who wrote much of that stuff after collecting it on other sites and combining information. He posted it on Faeit 212.

You know, It is interesting they did this.

By citing breach of copyright, rightly or wrongly, they shut down a large place where rumours circulate.

In last years Investors report, it was cited that they had seen more people go for White Dwarf, to get any info on what is happening. Without Faeit 212, this can be argued to be so again.

However, the problem with White Dwarf is that if is too much a promotional item, and with very little useful stuff. I stopped buying it a few months ago, because it was an expensive advert campaign every month.

Painting guides that used to be in it, and so forth, are now being sold... iTunes only. This means that all those who use other formats either have to start buying Apple products, or be excluded.

Games Workshop is clearly being run by people who fail to grasp how things are today. In a couple of years time, they will be second or third for wargaming, and figures. In tough times, the most adaptive wins out.

In the end, you have to work out what laws have been broken. There is more than one country involved here, and the question remains... can a British company use American law to shut down a blog with a British domain name? Why not use British law instead?

In the end, all it does is make me much more apathetic to the company. Games Workshop is what got me into this hobby, but it isn't likely to keep me in it.

Peregrine (or anyone else posting on this thread), are you an attorney who specializes in IP? Just curious because you seem to speak as if you are...so I'd like to clear the air and establish either you are an attorney qualified to speak on this matter or not...

You can't simply look at the wording of just any law and simply interpret it, or come to a determination, FYI.

First, you must look at how courts have defined the language of the law by examining other cases and then compare the facts of this case with the facts of other cases to see how a court or judge will/must rule.

So with that said, I was curious what cases you were referring to in coming to your conclusions?

Non-attorneys asserting legal arguments and conclusions seldom ends well in court, or otherwise.

linnear wrote:


I seriously doubt BoLS went down for "server issues". It is Google we are talking about. They host Blogger. Isn't it strange that BoLS went down ecactly the same time as Faeit212 did? And Faeit212 is all over BoLS.

I am sure Google took down BoLS to review its content, while Faeit212 was just deleted.

Neither I believe.

Google took down Nafka's Blogger account (!). As a result, all blogs/websites/etc.. he had author permissions to went off-line, which included BOLS. Then they had to disentangle that, given that the offensive content was on only one of the sites.

 Janthkin wrote:

 Sean_OBrien wrote:
DMCA takedown notices are only to be issued when it is an open and shut case. If it is not an open and shut case (as is the case here) the lawyer has to make a false statement claiming it is open and shut case on behalf of their client...which is illegal.

Because their is a question of fair use, it is not open and shut - regardless of any claims GW might have to the contrary. There exists a substantial amount of case law that supports this issue. The only way you can argue that the DMCA notice would be valid is if you were to discount the potential news value of the posts. With fair use in mind though, the proper course of action under the law would have been for GW to file for an injunction through the courts and have a judge eveluate the nature of the amount of material versus its news worthiness. If the judge agrees that harm could be done to White Dwarf, than he would file an order pending a legal case against Faeit and with Google (the host).

Citation, please? I'm familiar with OPG, but I haven't come across much else in the way of DMCA caselaw relating to this topic (and as we already discussed, I don't find OPG to be especially on-point here).

I do discount most of the "news" value of the posts. There wasn't much in the way of news - it was "look, pictures!" and a dump of a bunch of copyrighted images from WD (this time; previously, pictures of pages from IA 12, and etc.).

Sometimes the pictures are the news, and no commentary is needed - this is generally the case when the new product is graphic in nature or when there is no other method in which a news agency can confirm or relate the story, other than with pictures. In those cases, the courts do not require a transformative or further discussion by the news agent. For example, the courts have found in Nunez v. Caribbean Int'l News Corp (http://caselaw.findlaw.com/us-1st-circuit/1286688.html) that the presentation of facts in copyrightable form do not preclude other sources from using those facts to disseminate those facts. In particular, the Nunez court found the following when weighed against the 4 prong test of fair use:

◾Is the purpose and character of the use commercial or non-commercial?
•The Court found that there was newsworthiness to the photos. However El Vocero was printing them mostly to titillate readers and sell more newspapers, so this factor didn't fall squarely for or against fair use.

I would say that there is less titillation and more newsworthiness regarding blurry photos of pages of a magazine versus photos of a topless beauty pageant contestant - but in any case...lets call this a draw as well

◾The nature of the copyrighted work.
•The Court found that Nunez had already published the photos and had not registered the copyright or sought to control dissemination. That goes in favor of El Vocero.

Although the images are as of yet unpublished, prior to them being published in White Dwarf, they will be published online as part of the preorder/new release section of the GW website, which would be a mitigating factor when determining how important they are to the sale of the White Dwarf magazines. This is further emphasized because the court addressed the purpose of the photographs. The GW images, while copyright by default lack any form of artistic expression and exist solely for the purpose of expressing facts - these are our miniatures, now you can buy them.

◾The amount of the original work used.
•The Court found that El Vocero used the whole photo, but they couldn't have reasonably used any less, so this factor didn't fall squarely for or against fair use.

Much like the Nunez case, Faeit uses whole pages from time to time - though quite often they are also cropped and almost every instance they are somewhat blurry and out of focus (no doubt due to the clandestine sourcing of the images). Since the whole of the copyrighted work would be the entire White Dwarf magazine and the portions being displayed on Faeit are generally just the new release section which is available for free online, this would be another mitigating factor in support of Faeit.

Again, as with the nature of the work, the amount copied is addressed in Nunez to a large extent - is what Faeit used excessive to convey the story, or is it inline with what is needed to portray the nature and character of their intended use? Since the issue at hand would be the news of the new releases - copying the whole of that section of White Dwarf would likely not be deemed as excessive. Unlike other cases, where it could be argued that that devalues the end product (the whole White Dwarf), the new release section would have already been released for free online prior to the issuance of the White Dwarf and as a result it would have a negligible impact. If they were to copy other sections which are not freely available online (say the Heavy Metal or Battle Reports) then the copied sections would likely be considered to be excessive since those are not needed to show what the new releases are.

◾The effect on the potential market.
•The Court found that consumers who might have bought Nunez' photography were unlikely to be dissuaded by seeing the photos poorly reproduced in a newspaper. If anything, the publicity would increase demand for Nunez's work. That goes in favor of El Vocero.

The real big one. As repeatedly pointed out, the new release section of the website is updated before White Dwarf ships. People have free access to the offending information, so the impact on the sales of White Dwarf specifically would be minimal. Further though, since the pages in question would be pictures of a different copyrighted work - the miniatures - the same conclusion could be followed here...if anything, the publicity generated would increase demand for the miniatures, not decrease it.

In Murphy v. Millennium Radio Group LLC which was filed under the DMCA, the courts addressed a photo of some DJs who won a "Best Shock Jocks". The radio station used a photo from the magazine of the two DJs and the photographer (an independent contractor) sued. The court found that the photo was the best way to convey the news, but in a 3rd Circuit Court ruling weighed the potential economic impact for the photographer. Because of the potential impact on the photographer, that was deemed not to be fair use - however in the Faeit case, you would be hard pressed to demonstrate that the images posted by Nafka on his website actually put at risk the job and revenue stream of GW or even the photographer.

You also have Kelly v. Arriba Soft Corporation in which the court weighed the issue of fair use as well. In that case, the entire image was copied (this is one of those thumbnail web search cases). Again, comparable issues are weighed and addressed and find in favor of Fair Use - with almost no transformation at all.

In Higgins v. Keuffel, one of the earliest attempts to address the issue of Catalogs and advertisements as they might be copyrightable, the Supreme Court found:

To be entitled to a copyright the article must have by itself some value as a composition, at least to the extent of serving some purpose other than as a mere advertisement or designation of the subject to which it is attached.

That standard is still used today when determining if that item in question is a genuine creative work or if it is simply meant as an advertisement and can be found cited in cases like Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Gates Rubber Co. v. Bando Chem. Indus., Narell v. Freeman, Nihon Keizai Shimbum, Inc. v. Comline Bus. Data, Inc., Alberto-Culver Co. v. Andrea Dumon, Inc., Kitchens of Sara Lee, Inc. v. Nifty Foods Corp. and most recently Custom Dynamics v Radiantz LED Lighting.

On the issue of the DMCA, it lies within the statute itself as well as within the laws that existed before hand and since.

Section 512(c)(3)(v) states:

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

That little "or the law" requires people who file the DMCA to consider affirmative uses of copyrighted material, such as fair use, as demonstrated in OPG v Dielbold, Rossi v MPAA, Design Furnishing v Zen Path, Lenz v Universal Music, Ouellette v. Viacom (note, some have won, some lost - all discussed at length the issues at hand)... In both Lenz, OPG and Design Furnishing - the court held that the filer of a DMCA takedown notice should weigh the issue of fair use in making the above quoted statement. Rossi also addressed the issue, but did so in the subjective manner - though even when viewed subjectively it is hard to ignore the possible fair use issues in the Faeit website. In each case though, they address whether or not an exception would apply under the law as noted in 512(c) and whether or not the filer of the DMCA takedown notice should have known prior to filing that 1) that exception might exist and 2) that they chose to ignore it anyway.

To further demonstrate this reality, large IP conglomerates have actually created legal backdoors with content hosts like YouTube that allow them to takedown media without actually filing a 512(c) notice that would subject them to the rules of 512(f). They are not doing this because it is easier, rather because it insulates them from the liability generated by making the specific statement required under 512(c)(3)(v).

 Sean_OBrien wrote:

But to present it as being as open-and-shut as you (and others) in the thread have been doing is to trivialize the legitimate legal issues here, and potentially give readers a skewed view of copyright & fair use.

Been busy the past couple days...but that is exactly the thing...

DMCA takedown notices are only to be issued when it is an open and shut case. If it is not an open and shut case (as is the case here) the lawyer has to make a false statement claiming it is open and shut case on behalf of their client...which is illegal.

Because their is a question of fair use, it is not open and shut - regardless of any claims GW might have to the contrary. There exists a substantial amount of case law that supports this issue. The only way you can argue that the DMCA notice would be valid is if you were to discount the potential news value of the posts. With fair use in mind though, the proper course of action under the law would have been for GW to file for an injunction through the courts and have a judge eveluate the nature of the amount of material versus its news worthiness. If the judge agrees that harm could be done to White Dwarf, than he would file an order pending a legal case against Faeit and with Google (the host).

That the DMCA is open to being abused and others might abuse it does not mean that we should ignore it being abused.

MASSIVE DISCLAIMER: I am a current law student. I am still quite a distance from being a lawyer. I also haven't had the opportunity to read the entire thread fully yet. (First final is in 2.5 hours.) All that said, one of my major projects this semester involved fair use, so it's an area of law I'm acutely and painfully familiar with.

I'm familiar with DMCA and the takedown notices. I'm not as familiar with the DMCA case law as I'd like to be, but I haven't been able to find any requirement that the copyright holder certify that the case is "open and shut." The requirements for the takedown notice are provided by 17 U.S.C. § 512(c)(3)(A), and that section does not provide the sort of requirement that you are talking about. The closest thing to that is a requirement that the person filing the notice have a good faith belief that the use was not authorized by the copyright holder.

I'm certainly open to correction if you can point to a case that provides a more stringent requirement, however. But I'd be surprised if there is one.

Fair use is an affirmative defense to a copyright claim. In basic terms, that means that it's not really GW's job to evaluate whether Faeit's use falls within the fair use limitation on copyright. It's Faeit's job to show that it does. GW needs to show that they own the copyright (we know they do), that Faeit published their copyrighted material (he did), and that he did not have their permission (he didn't). Once GW has done that, they have presented a prima facie copyright claim. Fair use gives the infringer - in this case, Faeit - the opportunity to say, "yes, I did all those things, but I am allowed to under the law because..."

As far as the good faith requirement is concerned, a possible fair use defense does not change GW's ability to certify, in good faith, that they did not give Faeit permission. I could maybe see there possibly being a bit of an issue if there was an open-and-shut case of fair use, but fair use is almost never open-and-shut. As others have pointed out, fair use requires the court to weigh a number of factors. There's no bright line rule defining when any of those factors have been met. All of the factors are assessed based on the individual facts of the case.

My gut instinct says that Faeit probably does not have a strong fair use defense here. The facts here, particularly where the advance pictures from WD are concerned, are a relatively good fit with Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985). In that case, SCOTUS found against fair use, and the first publication rights of the original author played a large role in that determination. (There are ways to distinguish the cases, of course.)

I've got an exam in a little bit, but I'll try to find time to look at this a bit more later on today.

Y'know ever since GW dropped the GoogleHammer on BOLS, it's been quieter here, like we worried about the GoogleHammer, too.

I'm a little concerned. It's like GW is the effective yet little, petty, spiteful jerk who hired the biggest, meanest most-don't-give-a-F, thugged out jock (Google) to kick in the teeth of somebody who didn't even really do anything wrong (BOLS).

We just all hushed because we prob'ly know we not just gonna totally swear off GW... myself included I guess.

Of course if you're planning to start an IG or possibly Space Marine army I would do my best to support DreamForge as much as I could. All Eisenkern Stormtroopers for my IG infantry.

RancidHate wrote:
Y'know ever since GW dropped the GoogleHammer on BOLS

Let me tell you how I know you didn't read the thread...