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Music The Courts

Expense and Uncertainty Plague 'Fair Use' Defense 190

Posted by Soulskill
from the i'd-be-kind-of-blue-too dept.
Andy Baio of Waxy.org recently organized a chiptune tribute project for Miles Davis' acclaimed Kind of Blue album. What was intended as a creative labor of love turned into a nightmare for Baio when a copyright claim demanded exorbitant sums while glossing over fair use. He writes, "I went out of my way to make sure the entire project was above board, licensing all the cover songs from Miles Davis's publisher and giving the total profits from the Kickstarter fundraiser to the five musicians that participated. But there was one thing I never thought would be an issue: the cover art." Despite strongly believing that his pixelated version of the original cover art fell under fair use, Baio eventually decided his cheapest option was to settle out of court, paying the original photographer $32,500. "Anyone can file a lawsuit and the costs of defending yourself against a claim are high, regardless of how strong your case is. Combined with vague standards, the result is a chilling effect for every independent artist hoping to build upon or reference copyrighted works."
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Expense and Uncertainty Plague 'Fair Use' Defense

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  • Wikipedia uses a non-pixelated version [wikipedia.org] and accepts donations and distributes them to the people that work on Wikipedia. Why aren't they targeted by Jay Maisel?

    I'm not a fan of chiptunes and I value my music collection in its unadulterated entirety but Mr. Maisel has provided his business mailing address [jaymaisel.com] so I believe I will take both my CD liner and vinyl covering and mail them back to Mr. Maisel. I'll probably write something very graphic on the front of them in regards to greed and fornication. I w
    • by esocid (946821)
      I have no idea what sort of justification he made, but the derivative work always generates renewed interest in the original, so Maisel not only received free publicity for an album for which he gets royalties, but also extorted a good chunk of change from Waxy for something that is clearly fair-use. It's a hand-made pixel art version of a photograph. There is no way in hell that a person interested in Kind of Blues would say, "Hey, you know what, I'm going to buy that chiptunes album because the album art
      • by esocid (946821)

        I have no idea what sort of justification he made, but the derivative work always generates renewed interest in the original, so Maisel not only received free publicity for an album for which he gets royalties, but also extorted a good chunk of change from Waxy for something that is clearly fair-use. It's a hand-made pixel art version of a photograph. There is no way in hell that a person interested in Kind of Blues would say, "Hey, you know what, I'm going to buy that chiptunes album because the album art is similar." Jay Maisel is a hack.

        I noticed my point was unclear. I meant, no person would buy Kind of Bloop, instead of Kind of Blues because the cover art is similar.

      • by Kjella (173770)

        There is no way in hell that a person interested in Kind of Blues would say, "Hey, you know what, I'm going to buy that chiptunes album because the album art is similar."

        That'd be enough for trademark, but not copyright. For copyright the main question is whether their creative expression is part of your creative expression, if so your work is derivative. Even if it's a pixel art version of a photograph, it's clearly derivative of the original photograph. That makes it fall under copyright, and you have to look at fair use. Where it falls most flat on its face is its purpose, which is to promote another commercial work. That is pretty much never a fair use, you can talk abo

        • Things with even more obvious similarity are used to promote commercial work all the time, and protected as parody. That "tribute" hasn't received the same solidity of protection is simply a matter of case law being behind the zeitgeist of democratized creation and publishing.
          • by lgw (121541)

            The key is: a tribute isn't fair use. It's a normal commercial product. It's not a parody. It's not a critical discussion. It's a product.

            This was understood for all the music, which was properly licensed, but for some reason he didn't think he needed to license the cover artwork. That's just a mistake, not some miscarriage of justice.

    • Wikipedia isn't sued because they'd just stop using the image, and that would cause there to be less overall infringement. The copyright owner of a little used work *wants* their copyright to be violated by someone who puts it on a physical object, so that it would be expensive to recall.

      Any decent copyright/patent/trademark law overhaul should have standards for corroborative works, so that people wishing to buy rights to a work, don't have to contract with every Tom, Dick, and Harry that contributed
      • by lgw (121541)

        The copyright owner of a little used work *wants* their copyright to be violated

        How does that apply to one of the most successful albums in human history?

        Wikipedia isn't sued bacause they are a critical discussion of the product, not a related product.

      • The copyright owner of a little used work

        Huh? It's the cover image of a quadruple platinum album. It is quite far from a "little used work".

    • by Hatta (162192) on Thursday June 23, 2011 @01:44PM (#36544060) Journal

      Wikipedia uses a non-pixelated version and accepts donations and distributes them to the people that work on Wikipedia. Why aren't they targeted by Jay Maisel?

      Because predators prey on the weak.

      • by Seumas (6865)

        Actually, because wikipedia uses an image of the album cover in representation of that album cover the same way Amazon would use it or a music reviewer would use it. They are not using it to represent a separate item that is for sale.

    • by 91degrees (207121) on Thursday June 23, 2011 @02:04PM (#36544374) Journal
      Nature of the use. It's not being used to promote Wikipedia, simply to illustrate it. It's being used in the nature of information about the original work or the work for which it was licensed.
    • by MozeeToby (1163751) on Thursday June 23, 2011 @02:04PM (#36544382)

      Because part of fair use is that it doesn't damage the value of the original product. Wikipedia using the image does nothing to hurt sales or the original, using the image as part of the branding of your album, even a non-profit, for charity album, is confusing to the consumer and could very conceivably hurt sales of the original (people who know what the cover looks like grabbing the wrong one).

      While I would personally say what he did to the image was transformative, the courts have seen things differently in the past. Anyone remember the Obama Change [wikimedia.org] poster? The transformation in that case was much more dramatic than in this one and they still ended up settling out of court.

    • Re: (Score:3, Insightful)

      by hedwards (940851)

      It's still infringement, I'm not sure why that wasn't obvious from the start. You can't use an image in this manner any more than you can use the music.

      In this case, I don't see anything about the pixelated version which should qualify it under fair use. It just looks too much like what those old school pixelated photos looked like before computers gained the memory and capacity to store larger images. It's certainly less qualified than that poster made from the AP photo of President Obama that's been all o

      • It's still infringement

        No, it's not. That's why it's called the "fair use exception". The Change posters were settled out of court, as was this case, so we don't know what the court would have said if the case had gone on, however I believe this was a case of fair use (see my other comment).

        • by lgw (121541)

          Fair use doen't mean "but I really want to". There are exceptions for parody, education, and critical discussion. A tribute album is non of these, and in no way falls under fair use, and there shouldn't be any confusion about that.

          • Like I said in my other comment, commercial use is NOT the sole determinant of whether a use is fair.
            • by lgw (121541)

              Right, sure, but again, it wasn't a parody, nor a critical work: it was a normal product. There has never been a "fair use" exception for tribute works.

              • I believe criticism and parody are only two areas where fair use may apply, and it's really up to the judge to decide in each individual case. For example, Google raised a fair use defense for its Google Books project (and many experts agreed) -- and their use is most certainly commercial and is neither criticism nor parody..
            • What exactly is "fairt use", last time I read US copyright law the there certainly was no mentioning of it. I only hear this term on /. are you really sure "fair use" is even existing?

  • Released in 1959? (Score:4, Insightful)

    by Anonymous Coward on Thursday June 23, 2011 @01:24PM (#36543772)

    That photo should flat out be public domain at this time regardless of whether the photographer is a live or dead.

    • by dougmc (70836)

      That photo should flat out be public domain at this time regardless of whether the photographer is a live or dead.

      Maybe [unc.edu].

      Personally, I think the guy shouldn't have settled. He should have dared the person to sue him -- yes, it's a risk, but I think things were strongly in his favor, and while yes, it would cost to defend such a suit properly, it would also cost to launch such a suit properly, and so the photographer would probably realize that it wasn't worth the risk.

      • I disagree.

        The most best thing would have been if the guy did not have made that "mistake".

        As much as we all are sympathetic with him, he was pretty stupid not to realize that the same rules that apply to the music also apply to the cover art.

        And for what reason should the right holder simply give in and not ask for his share? Do you want to claim - in a similar situation - you yourself hat given it away?

        The photographer worked for his photo as any other guy did. Just because it was a few years (or a few de

    • Re: (Score:2, Informative)

      by Seumas (6865)

      Nope. Anything created between 1950 and 1963 has a 28 year copyright, which means that copyright on this image would have expired in 1987. However, if you renewed your copyright from between those years in 1976, you're granted another 67 years, which means this image will likely not be in the public domain until 2054.

      Anything after 1978 is copyrighted until 70 years after its creator's death or for 95-120 years for items created for hire or anonymously. For example, if I hired you to take a photo for my rec

      • by Hatta (162192)

        Did you notice the "should" in the parent post?

  • I've never had a submission used without recognition. http://slashdot.org/submission/1670128/Cant-Afford-Lawyers-Then-It-Isnt-Fair-Use [slashdot.org]
    • by Trepidity (597)

      Hope Soulskill has $32,500 lying around...

    • by jamie (78724) * Works for Slashdot
      It wasn't your submission that was used. I shared it with the Slashdot author folks a few hours before you submitted. They penned their own writeup. :)
      • by esocid (946821)
        Ah ok. It disappeared from the stream, so I assumed they used it. Cheers.
        • by idontgno (624372)

          Weird. Are you saying that your submission, which was apparently enqueued shortly after the submission by Soulskill, was removed from queue because it was a probable dupe?

          Let me reiterate: Are you saying Slashdot editors prevented a dupe?

          "Inconceivable!"

          • by BitZtream (692029)

            Actually, it probably was published as a dup, but it was probably a week to a year later and he didn't notice it.

  • Sorry (Score:5, Insightful)

    by hondo77 (324058) on Thursday June 23, 2011 @01:34PM (#36543912) Homepage
    Sorry but he's just wrong, IMHO. Slightly altering the photograph for a commercial venture, as he did, was not fair use. Even if he didn't stand to gain from it. Not even close. Just because he believes it was fair use does not make it so (the same could be said of my opinion, of course).
    • And by naming his post "Kind of Screwed", he's just "slightly altered" the name of the album, making that a derivative work as well. </sarcasm>

      Do you have an argument for why a photographer has rights to this kind of extortion for a fifty year-old picture? Not the actual picture, mind you, but a version that's sooo pixelated that you wouldn't recognize it except with some external context?
      • Re: (Score:3, Insightful)

        by Seumas (6865)

        Sorry, but it is not that pixelated. It has a long way to go before it would be pixelated to the point that it wouldn't be recognized for what it is and at that point, it would not serve the intended point to the person using it as the tribute cover art. It's like saying that "HOPE" version of Obama is different, because "you would never recognize it as the original photo, because the real Obama is not actually red and blue!".

        As to an argument for why the photographer has the rights for a fifty year old pic

        • by gottabeme (590848)

          Let's leave the issue of the law aside for a moment and use sound moral judgment and common sense to decide how it ought to be.

          Oh, wait...

      • by hedwards (940851)

        "Kind of Screwed" would be protected under parody, assuming it needed protection as it's not subject to copyright protection and it isn't similar enough to "kind of blue" to have to worry about infringing upon any trademark that could exist.

        The pixelated version of the image though, doesn't fall under any reasonable category of fair use, he might have gotten away with it had the venture not been taking donations, but as it is, they were using somebody elses work for donations. And the manipulations they mad

    • by esocid (946821)
      It was a hand made pixel art of a likeness of Miles Davis. It wasn't just run through a filter to make a blurry copy of the photograph. That's like saying Andy Warhol's soup can is in violation.
    • On what do you base that opinion on exactly? US fair use uses four factors to test whether a use is fair or not and commercial use is only one of the four factors. Not all factors need to be met to declare a use as fair. They are as follows [wikipedia.org]:

      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 nature of the copyrighted work;
      3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
      4. the effect of the use upon the potential market for or value of the copyrighted work.

      Now IANAL, but while the use was commercial (1), it was transformative as it only used some very vague shapes from the original image thus meeting (3), and also did not affect the market of the original image (4).

      In other words, this is almost certainly fair use. Thin

  • by DavidinAla (639952) on Thursday June 23, 2011 @01:39PM (#36543974)
    If you take a photo that someone else owns and you run it through a Photoshop filter, that doesn't make it a different photo. Someone else still owns it. Period. It doesn't matter whether you like copyrights or not. It is insane to claim this case has anything to do with fair use. This is a blatant case of someone using a piece of art that he didn't own and just ASSUMING that the owner of the art wouldn't object. That was stupid. He was unlucky enough that the copyright owner asserted his correct legal rights. If Baio had taken the case to court, he would have lost -- 100 times out of 100. I don't care what his motives are. I don't care that he got correct legal permissions for the recordings. ALL of those things are irrelevant. You can't rip off art and use it the way you want if it's still under copyright. There isn't a fair use exception that will magically make it so.
    • http://en.wikipedia.org/wiki/Fair_use#Fair_use_on_the_Internet [wikipedia.org]

      On appeal, the 9th Circuit Court of Appeals found in favor of the defendant. In reaching its decision, the court utilized the above-mentioned four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution like the original artwork was. Second, the fact that the photographs had already been published diminished the significance of their nature as creative works. Third, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails.

      RTFWiki

    • Re: (Score:3, Insightful)

      by esocid (946821)
      learn2read

      Before the project launched, I knew exactly what I wanted for the cover — a pixel art recreation of the original album cover, the only thing that made sense for an 8-bit tribute to Kind of Blue. I tried to draw it myself, but if you've ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.

      It was hand drawn.

      • learnthelaw

        It's recognizably the same work - thus it's a derivative work and not fair use. It uses the key colors, elements, proportions, and composition of the original work - thus is not a transformative work and not fair use.

        He was careful to license everything else, but he failed to license the artwork because he handwaved a "fair use" justification into place. He blew it and it cost him.

      • by westlake (615356)

        It was hand drawn.

        Emanuel Ninger's [wikipedia.org] impressionistic conterfeit $50 bills were hand drawn, one by one, rather than being engraved and printed.

        It was quite an achievement, but no less illegal.

        When your stated intent is to recreate the original album art as best you can, the tech you use no longer matters.

        • Except the intent was not to recreate the original album art, the intent was to create a transformed version of the album art with a stylistic difference. It is sufficiently different that it is transformative and therefore fair use.
    • by Smauler (915644)

      Someone else still owns it. Period. It doesn't matter whether you like copyrights or not. It is insane to claim this case has anything to do with fair use. This is a blatant case of someone using a piece of art that he didn't own and just ASSUMING that the owner of the art wouldn't object.

      It absolutely does depend on whether you like copyrights or not. If you don't like uber long copyrights, then this guy was in the right. If you _do_ like copyrights that last for multiple decades, growing to over a cen

      • Fair use doesn't enter into this admittedly - fair use doesn't include commercial enterprises using copyrighted images for personal gain, funnily enough.

        Yes it does. Any use may be a fair use, although not every use is necessarily a fair use. Although being a commercial use may weigh against the use being fair, that alone is not determinative.

        As it happens, there are lots of commercial fair uses; ever read Mad Magazine, for example?

  • by topham (32406) on Thursday June 23, 2011 @01:39PM (#36543986) Homepage

    I read that earlier today. I don't understand why he's confused.

    He failed to license the image, which he should have attempted to do. He felt it was necessary to license everything else, how is it the cover art should be treated as less than the rest of the work?

    The nature of the work was not an artistic piece shown to an audience, it was a commercial venture with (likely) zero profit. Do I think it may have had artistic merit? Sure. Had it been presented in an art gallery with the music playing in front of the image in question then perhaps it would have easily fit into fair use.

    But as a CD available at a price? It's a commercial venture and requires licensing.

    • by Seumas (6865)

      Agreed. When I first saw the writeup, my thought was "how is this fair use?". It is the same original photo, but pixelated and while it's essentially an impression of a public figure, it is not a political figure and it is an impression directly based on someone else's work of that figure. He shows a list of photos of increasing pixelation at the end of the article and asks "at what point does this become acceptable?". Well, I would say the last four photographs would have been acceptable. Everything above

      • The question is whether there were chances to deal with this much earlier? It seems that a rational person might have said "please stop doing this" and that would have been it.

        Why would a "rational person" not seek recompense when his rights are violated and that's the remedy provided under the law?

        Taking it as far as tens of thousands of dollars in compensation seems a little unfair and money-grubbing. It's not like it was used on some corporate billboard somewhere.

        As you said, one is not different

    • by Homburg (213427)

      He felt it was necessary to license everything else, how is it the cover art should be treated as less than the rest of the work?

      This confused me two, but I can think of a reason why he might have thought there was a difference. With music, you have both composition and performance rights - chiptune versions of Miles Davis songs are, I guess, much like any other cover version, in that they are derivative works of the composition, but not of the original performance. Perhaps the musician here thought that a photo was like a performance, with no equivalent to the composition rights, so that a re-creation of the same (or a similar) imag

  • by Culture20 (968837) on Thursday June 23, 2011 @01:40PM (#36544014)
    Pay the copyright holder with bitcoins.
    • In the US, the only currency you are required to accept to satisfy a debt is US Dollars. You can choose to accept other currency, trade, whatever if you like but you are only required to accept dollars.

      That is the meaning of the phrase "This note is legal tender for all debts, public and private." If you owe someone a debt, be it a person, company, or the government, they are required to take USD to satisfy that debt. They cannot demand payment in another currency, or demand you do something instead.

      However

  • by neiras (723124) on Thursday June 23, 2011 @01:46PM (#36544108)

    Seriously, whether you like chiptune or not, the FLAC version is $5 and the MP3 even less. Help the man out [kindofbloop.com].

    • by ScentCone (795499) on Thursday June 23, 2011 @02:37PM (#36545006)
      Help him out? When he won't even acknowledge that he ripped off the other artist's work? Why reduce the pain for someone who's that obnoxious?
      • by neiras (723124)

        The guy produced an interesting album, then got caught up in a legal battle over cover art. I am not defending his misunderstanding of fair use - he clearly doesn't get it. Still, lot of good work went into the music; it would be sad if the whole project were tainted by the issue.

        The legal system will do its job on the cover art issue, but the album is still worth buying. Artists that actually produce notable works deserve encouragement, even when they screw up. They aren't lawyers or copyright wonks.

  • Not fair use (Score:4, Insightful)

    by LS1 Brains (1054672) on Thursday June 23, 2011 @01:49PM (#36544148)
    IANAL, but as others have mentioned, he's attempting to profit from a work he didn't create. That does not seem like it could ever fall under fair use. Just because one can make a 5 second tweak to an image in Photoshop, using the original work someone else created, doesn't make it a new piece of work. He should have contacted the photo copyright holder up front just like he did with the music copyright holders. There is a direct correlation between the modification of works, but for whatever reason he feels the images are free, but the music is not? Perhaps that is only because we have the MAFIAA/RIAA to "thank" by putting the punishments for such actions prominently in our minds with all their deplorable legal shotgun tactics.

    Reading the article, he more or less lays out why he settled - he figured out he was indeed in the wrong. The Doors album cover recreated with Rubix cubes on a street is (to me) plainly a new work, while based on an existing work. Simply reducing the resolution of a work and using it for the same purpose (a commercial album cover), is (to me) obviously not a new work. The other examples given could be argued separately, and no info is given on whether rights or permission were sought in each case, etc.
    • IANAL, but as others have mentioned, he's attempting to profit from a work he didn't create. That does not seem like it could ever fall under fair use.

      It routinely does, as it happens. Usually fair use involves people making use of copyrighted works which they did not create, and making a profit from the use, while not really helping claims of fair use any, is not at all fatal. If the use tended to act as a substitute (e.g. people start buying the pixellated album cover instead of the original) that's pretty bad, but the mere fact that the new album is for sale is only a very mild strike against the later user.

    • When does a work such as this become public domain? The album Kind of Blue came out on August 17, 1959, which means that the album cover photo was taken before. At that time copyright durations were 28 years. If the copyright holder did not include a copyright notice, the work became public domain automatically. We can presume that the album had the appropriate copyright notices. The copyright holder had to renew the copyright at the end of that term (1987) or the copyright would expire and the work wou
  • by makubesu (1910402) on Thursday June 23, 2011 @01:54PM (#36544226)

    I am not an anarchist, but cases like this make me sympathize with them. Look at how this system is corrupting men. As the writer rightly notes, it's not about whether the image falls under fair use. Indeed, given that the writer specifically went and got permission to use the make the music eight-bit, it seems inconsistent that he should not also ask permission to use the cover art. But this is all beside the point. The main question is why did the photographer sue him for such a ridiculous amount of money, or any money at all?

    There are two explanations: greed and pride. Greed is caused by the system. He would consider a reasonable amount for the penalty, but he knows that he can sue for more, and knows that suing for more will get him a better deal out of the settlement. Even a good man cannot resist the temptation to sue for more money. The system has corrupted him. Pride too is caused by the system. Because of the system, the photographer has an inflated view of his ownership of the image. How dare this artist not come on his knees and beg for permission to use my artwork. Thus, instead of happily agreeing to let him use the image, he feels he must use the full force of the law.

    We see then that the law has taken on a life of its own, and begun to corrupt the society it claimed it would protect. For the protection of our own morality, we should put an end to this.

    • by jklovanc (1603149)

      One major point you missed; the photographer was never asked, on bended knee or not, for permission to use the photograph.

      Another reasonable explanation is self preservation. A photographer makes his living by selling photographs and rights to photographs. If a photographer does not defend those rights by lawsuits then those rights go away. Photographs do not become public domain just because they are published.

      In my opinion this is a specially clear cut case. Using a slightly modified version of a well kno

      • If a photographer does not defend those rights by lawsuits then those rights go away.

        Copyright is not a trademark. You do not have to defend it or lose it. Copyright does not work that way.

  • by 91degrees (207121) on Thursday June 23, 2011 @01:57PM (#36544270) Journal
    It looks to me like a derivative work. It's a verbatim copy, and not just something included incidentally,

    It's not some ingenious reinterpretation of the original artwork, using the original purely for reference. To a casual observer, it's pretty much the same image without any new creativity being added. It's not being used as a commentary on the original, or an enhancement. Just a slightly modified version apparently chosen in order to benefit from the similarities to the original, while avoiding the requirement to pay a royalty.

    He was right to settle. It could very easily have gone against him.
  • by slshwtw (1903272) on Thursday June 23, 2011 @02:13PM (#36544554)

    In their demand letter, they alleged that I was infringing on Maisel's copyright by using the illustration on the album and elsewhere, as well as using the original cover in a "thank you" video I made for the album's release.

    Even if you agree that the pixelated version of the album cover was fair use (I don't), his case would have been damaged by the fact that he used the original cover elsewhere.

    • by Trepidity (597) <delirium-slashdot&hackish,org> on Thursday June 23, 2011 @02:39PM (#36545032)

      It depends on how he used it in that video (it doesn't appear to be available anymore). If it was used as just a portion of the video, I actually see a stronger case for that being fair use, than for the pixel-art version. The pixel-art version is arguably using a derivative work of the original image in a straightforward commercial use, as the cover art of a new album. Displaying a photograph of the original album as one part of a video about the release of a tribute to the album seems much more like commentary. For example, if I make a documentary about Miles Davis, it is not copyright infringement for me to display the cover art of Miles Davis's albums within my documentary--- but it would be more problematic if I used one of them as the cover art of my documentary.

      Hard to say without seeing it, though.

  • Award treble damages to the defendant for the cost of defense. There will be lawyers lining up to take on these cases. (this will never happen)
  • This isn't consistently applied in the US. Might as well get rid of it.

    ----
    Welcome to the USA. Former jurisdiction of the US Constitution.

  • My lawyers and I firmly believe that the pixel art is "fair use" and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.

    No. The least expensive option is to not pay money to a lawyer in order to hear that you should pay more money to more lawyers.

    If you think you're right, represent yourself, explain that you can't afford council, and the court will bend over backwards to help you with the procedurals.

    Or - here's a thought - just ignore the ca

  • I believe more and more as time goes by that the idea of copyright is fundamentally broken and that the world would be better off if it were abolished entirely. Perhaps a more ideal solution would be copyright reform, but if the options were abolishment or status quo, I'd vote for abolishment.

    I honestly believe that the very notion of copyright is hypocritical, because it is truly impossible to create anything truly original--everything one can think of and create is partially based on and influenced by ex

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