Edward Ju (gundam@loop.com)
Thu, 28 Dec 2000 04:27:03 -0800

>I am sorry, but I hate to see people pass off their personal opinion
>as a flat fact, when it is not a fair approximation of the truth.

Actually, what -Z- stated in the message you quoted would hold up in
court should a copyright holder haul the fansubbers to court. The fact
that most anime rights holder chose not to exercise their right or
even hire fansubbers to do their official release does not make
fansubs legit, just as the fact that everyone trades copyrighted music
ripped from their CDs over Napster does not mean everyone is in the
clear. Just because Metallica did not go ahead and sue every single
Napster user who traded Metallica MP3 files over Napster does not mean
these users did not participate in mass copyright infringement.

The Fair Use defense was a judge-made rule, which was later codified by
the 1976 Act in 107. While the policy behind it was that the value of
public dissemination outweighs the value of individual copyright owner's
monopoly right in the copyrighted work in certain cases, the defendant
still bears the burden to prove this defense.

As someone has pointed out already, this is sort of a gray area and there
is no clear cut, black letter rule of the law. Your best bet would be to
find existing rulings on a case with nearly identical facts. Short
of that, one needs to rely on a combination of these factors working in
one's favor:

- Purpose and character of use
- Favored uses (education, criticism, parody/satire, etc.)
- Nature of the copyrighted work
- Amount and substantiality of the portion used in relation to the
        copyrightedd work as a whole
- Newsworthiness / First Amendment free speech factor

To elaborate on these factors in detail would require a semester's worth
of pain and suffering in law school, but in a nutshell, the more factors
you have in your favor, the better your chances are defending against an
action using the Fair Use exception.

Fansubs, being a derivative work that is basically a translation, hurts
the original work's value in the international market as the fansub's
availability effectively destroys the original rights holder's monopoly
over the work's distribution. Since the work was originally created as
a commercial product, the fansubber's burden of proof is even higher.

Many of these factors do not really work in the fansubber's favor, anime
being commercial in nature and the fansub, for all practical reasons, was
a translated copy / derivative work of the original copyrighted work as a
whole. The mere availability of fansubs hurt the original work's value in
the international market because the fansub's availability effectively
destroys the original rights holder's monopoly over the work's distribution.
The Fair Use exception works better when the amount "borrowed" from the
source was partial and used for one of the favored uses, such as criticism
or educational purposes. A fansub hardly fits into such scenarios, whereas
a "pop-up video" made off an existing anime would be considered a fair use.

All in all, if you want the GML to be around, don't do anything that would
expose Dave (who kindly provided the ML server) to the risk of being sued
for contributory infringement.


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