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Molly:
Consensus has nothing to do with it. The legal realities are pretty clear, and have been since the first page or so. Ethics and morality are not equivalent to the law, but they're not entirely disjoint from it either.
Orion:
EDIT: This was actually a response to Point 1 of Brody's post above, not Orion's. /EDIT
Do you really think that copyright doesn't apply if you only lift parts of a work? Say, Kirk and Spock from Star Trek to use in your own novel? News flash for you, but Tyche has already taken care of it.
KaVir:
From your last post, your position becomes clearer. You aren't particularly interested in seeing copyright crusaders who aren't acting after specific statements by the authors that they disapprove of a particular use. That's fine. But you're letting your desire not to be shown up on the legal points you attempted to make in the beginning of this thread take you in directions you really don't want to be going. Failure to issue cease/desist orders implying consent, for instance.
An example: Your continued bit about the discussion board. It's quite clear for a number of reasons that the participants in a discussion board are in a considerably different position than what we're discussing.
Another straw man. There's a PRAGMATIC realisation that if you publish something, someone somewhere is probably going to infringe (copy your CD, use your novel if it's good, etc.) This has nothing to do with the topic at hand.
What's important is whether or not the use of the material is a REASONABLE thing for the user to be doing. By posting to a discussion board, most people would expect that the author is encouraging quoting and critique. This is in addition to the fair use provisions Brody and others have mentioned. By publishing a novel, the author is NOT inviting the general public to use his IP to do whatever they want.
Should the DIKU users have anticipated that someone, somewhere would violate their license? Of course. Does that mean that such violation would be reasonable and legitimate use of the IP? Of course not.
Straw man. It's the action of posting to a discussion board that made me draw my conclusion, not the inaction you describe. An ADDITIONAL action may help to clarify the posters intent, but claiming that this consitutes basing a decision on inaction is simply a cheap debating tactic. I suspect that you understand this. To borrow from Adams: A big yellow bulldozer proceeding towards my house might make me lie down in the mud in front of it, but that doesn't mean that when I go to work in the morning without lying down in my garden I'm only doing it because of the inaction of a demolition company.
And because they didn't sue, that makes the use of their IP ok in your eyes. (I understand what you're THINKING now, which relates to someone else crusading for the IP owner's rights. But that's not what you're SAYING)
Hmm, haven't you been arguing for years that failure to enforce copyright protection doesn't mean that you lose the rights, or are giving permission for use?
BOTH of us are party to the custom and practice. I suspect that you understand that publishing a novel is a quite different relationship between author and reader.
Do I have less sympathy for a victim who has the ability to defend themselves but doesn't (Tolkien Enterprises) than for someone who doesn't have a team of lawyers on retainer (a couple of college students releasing code)? Yes. Does that make fan-fiction a legal use of the material? No.
Stilton
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