Angela Arnold on 03 Nov 2003 suggested:

> Douglas,
> You really need to follow your own advice. Below are excerpts from
> the web
> site link you posted.
>
Nothing you posted here contradicts what I stated in my post. Yet
I'll still clarify some things here as well. You declared the "four
factors" as a test, and stated (or strongly implied) that if it met any
one of the factors, it was exempt. That is simply not true.

> Section 107 contains a list of the various purposes for which the
> reproduction of a particular work may be considered "fair," such as
> criticism, comment, news reporting, teaching, scholarship, and
> research.

This is correct. The way they were being posted here was for none
of the above purposes, as far as I can tell.

> Section 107 also sets out four factors to be considered in
> determining whether or not a particular use is fair:
>
> 1.the purpose and character of the use, including whether such use is
> of commercial nature or is for nonprofit educational purposes;
>
> 2.the nature of the copyrighted work;
>
> 3.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.
> http://www.copyright.gov/fls/fl102.html
> This is the "fair use" factors I was quoting from in my original
> post.
>
I did not deny the four factors existed, and am well aware of
them. I simply stated that you did not understand how they are applied
in evaluating "fair use". And from your current comments, I still don't
think you understand.

> Exempt from copyright:
> Mere listings of ingredients, as in recipes, labels, or formulas.
> When a recipe or formula is accompanied by explanation or directions,
> the text directions may be copyrightable, but the recipe or formula
> itself remains uncopyrightable.
> http://www.copyright.gov/circs/circ34.html
>
I never said the ingredients list was subject to copyright, on the
contrary, I believe I specifically said the expression of the
ingredients was inseparable from its function, and thus not protected.
I did say that the expression as to how the ingredients could be
combined, mixed, and brought together into a final product could very
well be an original expression, and subject to protection.

> Mere listings of ingredients as in recipes, formulas, compounds or
> prescriptions are not subject to copyright protection. However, where
> a recipe or formula is accompanied by substantial literary expression
> in the form of an explanation or directions, or when there is a
> combination of recipes, as in a cookbook, there *may be* a basis for
> copyright protection.
>
I believe the above paragraph is precisely what I said in the
previous post, albeit without the emphasis on "may be". However, under
current copyright law, pretty much any original expression affixed in a
tangible medium does, in fact, enjoy protection.

> Protection under the copyright law (title 17 of the United States
> Code, section 102) extends only to "original works of authorship"
> that are fixed in a tangible form (a copy). "Original" means merely
> that the author produced the work *by his own intellectual effort*,
> as distinguished from copying an existing work.

That IS the law. Who are you to say that the posts are NOT
original in their expression of how to prepare the ingredients that are
listed? Unless you have some evidence that (a) shows there was a
previous identical expression, AND (b) that the author had access to it
and copied it, the work is presumed to be an original work.

> Copyright protection
> may extend to a description, explanation, or illustration, assuming
> that the requirements of the copyright law are met.
> http://www.copyright.gov/fls/fl122.html

Yes, that's correct.

> Since very few recipe directions are actually original, (as anybody
> knows if they have ever baked or cooked a lot), this would have to be
> one very unique recipe.

Again, as you said before, Copyright doesn't protect the IDEA or
the FORMULA. It protects the original expression of said idea or
formula. Thus, if there is originality in the explanation of how to
prepare or combine the ingredients, it is entitled to protection of the
Copyright laws.

> There are only so many ways you can prepare foods and many
> ingredients have to be combined in certain ways in order for them to
> work properly.
>
That is your opinion, and you are entitled to it. I make pretty
much one "dish", chocolate chip cookies. And I can assure you, that not
only the ingredients matter, but that they can be combined in many
different ways, different orders, and with very different results.
After many trials and errors, I have discovered my particular method,
that I believe makes the best chocolate chip cookie to my likes, which I
do not share with anyone. And yet, my method is NOT subject to
Copyright protection. However, saying that, I can still express how to
do it my way, in as many different ways as there are letters in the
alphabet, and my teaching of my method WOULD BE protected by Copyright.

> As for your statement:
> "But he DOES deprive the authors/owners of the website of income,
> by not properly attributing the source, and eliminating the need for
> people who seek such recipes from going to that site, and clicking on
> the ads from which the web owners derive their income."
> Most people looking for recipes do NOT go to the web site in order to
> click on the banner ads. Actually, I have yet to meet anyone who even
> clicks on banner ads, due to the risk of virus infection and also
> because most banners are complete crap and are akin to SPAM.

Again, that's YOUR opinion, of which you are also entitled. All I
can say is that if nobody clicked on ads, there wouldn't be very many of
them, and yet there are, because people DO click on them, generating
income for those people who have them. A lot of the "free" sites
wouldn't exist anymore, without these ads. The red herring regarding
virus/spam/etc is irrelevant.

--Douglas