Permission Culture And The Automated Diminishment Of Fair Use

from the tragic-losses dept

The very point of fair use is that it's supposed to allow for creativity without permission. Even in a society dominated by copyright, at least our courts and regulators recognized the need for creativity built (in part) on what came before, without having to go through the tollbooths of requiring permission to create. However, some recent events have shown how the DMCA and other attempts to beef up copyright law are trying to erode the very notion of fair use without permission.

SinkDeep alerts us to the news that a bunch of DJs are upset after discovering that SoundCloud took down a bunch of the mixes they had hosted on the service. If you're not familiar with SoundCloud, in the last few years, it has become one of the most popular tools for musicians and DJs to host their music. It offers a really nice toolset for anyone looking to promote their music online (and for others to build apps on top of it). SoundCloud has also been a pretty big supporter of open culture, supporting things like Creative Commons along the way.

I contacted SoundCloud to find out what was going on, and the response was pretty much as I expected. Due to the nature of the copyright world we live in today, the company recently implemented a fingerprinting-type technology, similar to those used by YouTube (ContentID) and MySpace (Audible Magic), which lets copyright holders designate their own works, and which SoundCloud then automatically blocks. While the original link above "blames" SoundCloud for becoming a "walled garden," that's not really fair nor accurate. The real problem is the nature of our copyright laws today, that assume infringement over fair use. As we've discussed before, copyright law is effectively broken when it sets up fair use as a defense, rather than a proactive right. Fair use should be seen as the default until proven otherwise, if fair use is really (as is claimed) designed to be a pressure valve on copyright law to allow free speech.

Unfortunately, the industry has pushed back on this notion to a huge level. The very crux of the YouTube-Viacom legal fight is really over this issue. As many have noted, in the specifics of the lawsuit, Viacom basically notes that it has no problem with YouTube starting with the exact date that it implemented its ContentID program. In Viacom's (and much of the entertainment industry's) interpretation, the DMCA requires such filters. The likely reason that smaller companies like SoundCloud are now implementing filters as well is that they know there's a half decent chance that the eventual outcome of lawsuits like the Viacom/YouTube fight will mean that a company is required by law to have such things in place.

But, of course, the problem with all of this is that it goes back to creating permission culture, rather than a culture where people freely create. You won't be able to use these popular or useful tools to build on the works of others -- which, contrary to the claims of today's copyright defenders, is a key component in almost all creativity you see out there -- without first getting permission. The systems will try to block it, until you make your case that something is fair use -- though many will just not bother. This is unfortunate, and really shuts down a major opening for creativity these days. If you look at the history of music, nearly all popular music today is built on earlier works, without first getting permission. It would be a terrible situation if we end up shutting off that form of creativity by requiring permission for everyone first.

The issue isn't to blame the tools providers for implementing such features, but to look more deeply at the state of copyright law today, where we're increasingly suffocating the real purpose of fair use, which was to allow such creativity, without first requiring permission. These filters don't understand fair use, so they assume anything that matches is infringement, and because of that, we all suffer.


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  1.  
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    Bas Grasmayer (profile), Dec 27th, 2010 @ 3:13pm

    Well, Soundcloud is based in Germany, so the US definition of fair use shouldn't matter.

     

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    btrussell (profile), Dec 27th, 2010 @ 3:20pm

    Put copyright term back to 14 years and eliminate 99.9% of all problems/litigation.

     

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  3.  
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    Anonymous Coward, Dec 27th, 2010 @ 3:50pm

    Permission Culture indeed. I can't believe there are still people asking whether it's okay to link to something. It's the freakin' web, that's sort of how it works!

     

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  4.  
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    Jay (profile), Dec 27th, 2010 @ 4:03pm

    Re:

    Tell that to Righthaven and the Performance Rights Organizations.

     

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  5.  
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    Anonymous Coward, Dec 27th, 2010 @ 4:34pm

    I don't really understand how that sort of software works, so I might sound a bit stupid :) but is there any chance the thing can get confused and block totally unrelated songs?

    Sad thing tho...

     

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    Anonymous Coward, Dec 27th, 2010 @ 4:54pm

    Re:

    is there any chance the thing can get confused and block totally unrelated songs?


    Of course there is, and it is unavoidable that it will happen.

    Head on to Wikipedia and read on Type I and type II errors.

    You will notice that, if you tune your algorithm to reduce the chance of false negatives (not blocking related songs), you will increase the chance of false positives (blocking unrelated songs). The same applies to the other direction. You can tune to reduce both, but some will happen no matter what you do.

    An example for the other direction might make this clearer: you can completely eliminate false positives by only matching when the songs exact matches one from your database. There is no way you can be wrong when it matches (pretend for a moment the database is correct). But if someone changes even one very small part of the song, even one which is not audible, it will not match anymore (false negative).

    To avoid this, you make it fuzzier, allowing for greater and greater changes before it does not match. But then you start having things matching when they should not (false positives), which is the consequence you are asking about (blocking unrelated songs).

    And that is even before getting to the hard cases, the ones even humans would have a hard time deciding. When is a song "related" to another? No matter which definition you use (and let's not even get started on trying to agree which definition to use!), there will be a line where it is hard to decide.

     

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  7.  
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    btrussell (profile), Dec 27th, 2010 @ 5:01pm

    Re:

    Besides the female body, do you know of anything that is perfect?

     

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  8.  
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    Darryl, Dec 27th, 2010 @ 5:47pm

    The very point of fair use is that it's supposed to allow for creativity without permission. NO MIKE

    using copyrighted material for something that is intended to make a profit. (like a new music mix), Does not fall under FAIR USE..

    Quite simply, its commercial in nature, so it does not come under fair use..

    And there is nothing wrong with having to show you're use if "FAIR USE" before you actually USE IT.

    Not after you have mixed it into a commercail product and are trying to make money off it.

    Fair use is not something that gives you the right to use other peoples copyrighted works...

    And it is not a 'free pass' that you can use whatever you like, then argue about it later when the rightfull owner finds out what you do and charges you..

    So Mike, why do you display such a lack of understanding of 'fair use'... it is really quite an easy concept.


    The very point of fair use is that it's supposed to allow for creativity without permission.

    WHERE DOES IT SAY THAT MIKE ??????????

    Come on mike you KNOW that is not true, so why do you LIE like that..

    Fair use, a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship.

    so:
    criticism
    news reporting
    research
    teaching
    library archiving
    scholarship

    SO WHERE THE FU%$# is you're 'creativity' bullshit mike ??


    FAIR USE:

    'for the purposes such as criticism, comment,news reporting, teaching, scholarship or research, is not an infringement of copyright.'

    In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:'

    *********

    1. the purpose and character of the use, including whether such use is of a commercial nature o is for nonprofit eductational purposes;

    2. the neture of the copyrighted work;

    3. the amount and substantiality of the portion used in relation to the copyrighted work.

    4. the effect of the use upon the potential market for or value of the copyrighted work.

    So Mike, where do you get the false claim that fair use is for creativity, or for the creation of derivative work.

    It's very clear Mike, that you either have no idea about copyright, and fair use, or you are simply lying and making stuff up to justify your very poor and weak arguments.


    How can someone who claims to know so much about these things say things that are so clearly WRONG, misleading, unproven.. and clearly a LIE..

    dont you CARE about your reputation Mike ??

     

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  9.  
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    Jay (profile), Dec 27th, 2010 @ 5:50pm

    Re: The very point of fair use is that it's supposed to allow for creativity without permission. NO MIKE

    You still love to ramble on about nothing don't you?

     

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    Darryl, Dec 27th, 2010 @ 6:10pm

    Re: Re:

    yes, I can think of something..

    Mikes lack of understanding of copyright law is perfect.

    Mikes failure to understand what FAIR USE means is perfect.

    there are very few perfect things, except of they are perfectly flawed..

    What they are complaining about here is that they are relying on software to find out if what they are hostile is copyrighted or not..

    But the fact is, its a no brainer to work that out, just by seeing what is there.

    It is the same for child porn, it is clear what it is, it is clear it is illegal.. but you do not see CP accendently being posted on web sites..

    Because it is clearly illegal, and immoral, that same applied for copyrighted content.. how on earth can you host avatar and believe that you are not in breach of its copyright..

    You know its illegal, but you constantly try to find little loopholes, and ways around the law.. so you can get what you want..

    It is no different to people who try to justify downloading child porn, justifying it because they really want that content, regardless of the law, and the damage it does to other people...

    You (I hope) are against child porn, and you know its illegal, but you also know that copyright theft is also illegal.. but you justify that by trying to find loopholes,, complain loudly about how people are trying to stop your illegal activities. By applying the law..

    So its ok for you to steal content off others, because somehow you think you can justify you're actions.

    But in reality you are no better than a person who is trying to download CP, or who goes into a bank and holds it up..

    And after all this time, Mike, you should damn well know this..

     

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  11.  
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    Anonymous, Dec 27th, 2010 @ 6:16pm

    nearly all popular music today is built on earlier works, without first getting permission.

    Leave it to tech nerd to say something this moronic.

    You say dumb sh*t all the time Masnick, but this whopper is right up there with some of your stupidest statements.

    Anyway, YouTube is going to lose the appeal, and rightfully so.

    http://www.ipinbrief.com/wp-content/uploads/2010/12/Viacom-2d-circuit-main-brief.pdf

     

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  12.  
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    Anonymous, Dec 27th, 2010 @ 6:19pm

    Re:

    Robust software can easily reduce false matches to essentially zero.

    I'm surprised people are suggesting otherwise on a tech blog.

    Oh wait, this is Techdirt...

     

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  13.  
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    Anonymous Coward, Dec 27th, 2010 @ 6:26pm

    Re:

    The raw material for new culture is, in fact, old culture. But what do I know? I'm just an art nerd.

     

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    Anonymous, Dec 27th, 2010 @ 6:33pm

    Partly.

    But that's not what Masnick said. He said "nearly all popular music today is built on earlier works, without first getting permission" which shows his complete and total ignorance of how songs are written.

     

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    Anonymous Coward, Dec 27th, 2010 @ 6:59pm

    Fair use doesn't mean "use it no matter what". Certainly a DJ mix distributed to others is more than fair use, it is redistribution.

    The level of rhetoric in this story is absolutely stunning. There is no diminution of fair use, only a reduction in the number of illegal uses of the material. This isn't "permission culture" this is "quit stealing the music". The DJs are trying to make their names on the backs of others without obtaining the rights to the music. That isn't hard to understand.

    Between this and the Indian Copyright story up the page, I truly think that TD is losing it's edge. Things around here seem to be going from semi-informative and somewhat slanted to desperate and whiny.

     

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    Anonymous, Dec 27th, 2010 @ 7:06pm

    Re:

    Yup. The wagons are circling...

     

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  17.  
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    RD, Dec 27th, 2010 @ 7:17pm

    Re:

    "He said "nearly all popular music today is built on earlier works, without first getting permission" which shows his complete and total ignorance of how songs are written."

    Oh yes? And so songs are COMPLETELY and TOTALLY 100% written original with ZERO influence or similarity or ANY reference or same melody as ANY OTHER SONG EVER? Right? Thats what you idiots are saying? You really believe that garbage? Because I'd like to introduce you to a little muscial genre called RAP MUSIC. And before that, Rock Music. And before that, Jazz Music. ALL of these forms BORROWED OR COPIED HEAVILY from other genres that preceded them. You show YOUR ignorance of not only how music is made, but the history of music and culture, by stating such obvious idiocy.

     

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  18.  
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    Anonymous, Dec 27th, 2010 @ 7:22pm

    Re: Re:

    And when new works infringed on the copyrights of previous works, the original creator sued. And won. The system has been in place for decades and it works.

    Go educate yourself a little on music history, and then get back to me.

     

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    DH's Love Child (profile), Dec 27th, 2010 @ 7:27pm

    Re:

    nearly all popular music today is built on earlier works, without first getting permission.

    Leave it to tech nerd to say something this moronic.

    You say dumb sh*t all the time Masnick, but this whopper is right up there with some of your stupidest statements.


    Um, you need to SERIOUSLY bone up on your music history if you think ANY music is created in a vacuum with no influence from any other music out there.

     

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  20.  
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    Anonymous Coward, Dec 27th, 2010 @ 7:37pm

    Re: Re: Re:

    +1 funny. You almost had me there up until the CP argument.

     

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  21.  
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    Anonymous, Dec 27th, 2010 @ 7:37pm

    Re: Re:

    Strawman. I never said music was created in a vacuum with no influence from any other music.

    I said that his statement "nearly all popular music today is built on earlier works, without first getting permission"
    is moronic. Which it is.

     

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  22.  
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    Anonymous Coward, Dec 27th, 2010 @ 7:44pm

    Re: Re: The very point of fair use is that it's supposed to allow for creativity without permission. NO MIKE

    yeah, but for once, he is exactly right.

     

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  23.  
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    RD, Dec 27th, 2010 @ 7:50pm

    Re: Re: Re:

    "And when new works infringed on the copyrights of previous works, the original creator sued. And won. The system has been in place for decades and it works.

    Go educate yourself a little on music history, and then get back to me."

    Um, yeah, wrong. Sure, SOME people sued, but the vast majority did not. Also, not everyone who DID sue won either. So, you are wrong at least twice. And I dont need to educate myself on the history of something I myself lived through. You might want to however, since you dont even know basic facts of the history of this stuff.

     

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  24.  
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    RD, Dec 27th, 2010 @ 7:51pm

    Re: Re: Re:

    "I said that his statement "nearly all popular music today is built on earlier works, without first getting permission"
    is moronic. Which it is."

    Well, you may think its moronic, but unfortunately for you, it happens to be true despite your opinion about it.

     

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  25.  
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    Anonymous, Dec 27th, 2010 @ 7:53pm

    Re: Re: Re: Re:

    And your ignorance of how music is created is typical of tech sites populated by those that do not create, but leech.

     

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  26.  
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    RD, Dec 27th, 2010 @ 8:27pm

    Re: Re: Re: Re: Re:

    "And your ignorance of how music is created is typical of tech sites populated by those that do not create, but leech."

    Ah yes, right, I have never created anything. Wait, yes I have....guess you are wrong again.

    ALL art owes itself to what came before it. ALL. To state otherwise is to be either dishonest, or willfully ignorant beyond absurdity.

     

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  27.  
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    Anonymous Coward, Dec 27th, 2010 @ 8:54pm

    Re: Re:

    Influenced is very different from "copied whole, including performance" as has happened here. The DJs are not performing music, they are performing mixing using other people's work. Plain and simple, nothing much more to it.

    I can listen to a bunch of blues songs, learn the structure of the blues, and play and sing a song that nobody has done before in the blues. There is a huge (immense) difference between influences and replication.

    If it was all about replication, we wouldn't need to record any music because everyone would be playing the same one song over and over again.

    You need to capitalize a few more words, btw. It's funny as heck to picture you jumping up and down and ranting like a mad man at this stuff.

     

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  28.  
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    RD, Dec 27th, 2010 @ 9:00pm

    Re: Re: Re:

    "You need to capitalize a few more words, btw. It's funny as heck to picture you jumping up and down and ranting like a mad man at this stuff."

    Uh...yeah whatever. You must have lived a VERY sheltered life if you think a FEW words capitalized equates to someone losing their mind. Maybe you just arent very bright.

     

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  29.  
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    Jon Lawrence (profile), Dec 27th, 2010 @ 9:16pm

    Re: Re: Re:

    You know, your grammar is so atrocious, it's really difficult to take anything you post seriously.

     

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  30.  
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    Anonymous Coward, Dec 27th, 2010 @ 9:25pm

    Re: Re: Re:

    Ooooooo, how do I steal a copyright?

     

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  31.  
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    Anonymous Coward, Dec 27th, 2010 @ 9:26pm

    Re: The very point of fair use is that it's supposed to allow for creativity without permission. NO MIKE

    "using copyrighted material for something that is intended to make a profit. (like a new music mix), Does not fall under FAIR USE..

    Quite simply, its commercial in nature, so it does not come under fair use.."

    Oh look, Darryl is 100% wrong. It must be Monday. Or Tuesday. Or any day, really.

     

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  32.  
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    Anonymous Coward, Dec 27th, 2010 @ 9:26pm

    Re: Re: Re: Re:

    Your entire post comes down to VERY FEW interesting words.

    Your posts read like someone ranting and having a fit. Perhaps you should try it without capitalizing random words. Then we will be forced to have to deal with the (often ignorant) content of your posts, as opposed to your grade school posting style.

     

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  33.  
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    Anonymous Coward, Dec 27th, 2010 @ 9:32pm

    Re: Re:

    Pirates vs. Indians! © Anonymous Coward, 2010

     

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  34.  
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    Freak, Dec 27th, 2010 @ 9:37pm

    Re: Re:

    It's actually incredibly easy to make software that makes absolutely 0 false matches. Here, I'll write a program for you right now that will never give a false match. Done. /sarc The issue is more that any software that does more than tag the absolutely friggin' obvious is likely to tag a lot of legitimate claims, and even if it irons that out, will still catch a lot of 'maybe's. Probably because there's a number of points where fair use is still subjective and the space, as far as computation is concerned, is very poorly defined. You're right that we might perfect it someday, but first we'll have to make a lot of clarifications in copyright law. (Sidenote: I don't know much about german copyright law . . . which I think would be relevant here, rather than US law . . .?) (sidenote: robust, as an adjective for software, means software that can handle exceptional cases or changes without crashing. That is, if I had a program that works with integer inputs, I could make it robust by getting to to say "That's not an integer input" to anything that's not an integer. Point is, that's not what robust means. I'm uncertain of the adjective you meant to use, but I believe "Correct" fits the bill. A "Correct" algorithm returns only true results. Technically, an algorithm which returns null is always a correct algorithm. (Compare to complete, which returns every true result, but may return false results. An algorithm which always returns the full list back is technically complete. The ideal algorithm is, of course, both complete and correct, giving all correct answers, and only correct answers)).

     

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  35.  
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    Freak, Dec 27th, 2010 @ 9:39pm

    Re: Re: Re:

    Ugh.

    I hate it when all the formatting I put into a post gets mysteriously collapsed.

    It's not clear from that post, but the intention is that the 'program' I write is an empty space . . . zero bytes. It will always produce correct results, and, as a bonus, is also a quine in nearly any language.

     

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  36.  
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    Darryl, Dec 27th, 2010 @ 10:07pm

    Re: Re: Re:

    I have to 100% agree, its just sad few here are able to see what you can clearly see..

     

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  37.  
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    Anonymous Coward, Dec 27th, 2010 @ 10:22pm

    Re: Re:

    "...false matches to essentially zero"
    Spoken like a person who has never done anything scientific in their whole life.

    Science, and therefore the application of science - Technology, is NEVER without any error. If there are no erroneous assumptions in the algorithm which models a relationship, then there will still be some level of measurement error in the data which is plugged into that algorithm. The question in science is always "How small can we get the error?", not "Will the error be zero?" Anyone with scientific training knows this.

     

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  38.  
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    Darryl, Dec 27th, 2010 @ 10:24pm

    We ARE a permission culture, and artists have freedom to create without theft.

    But, of course, the problem with all of this is that it goes back to creating permission culture, rather than a culture where people freely create.

    News Flash:

    Mike, our culture is ALLREADY a permission culture, and it is ALLREADY a culture where people can freely create. (and do).

    People can create freely, knowing that if they create something very good, and worth money, that someone else cannot just take that and make their own money.

    That is the freedom to create, and the permission culture means simply that you do not use the property of someone else with first gaining permission to do so.

    "I give you permission to take that new car, as long as you give me some money".

    "I give you permission to copy my creations, if you give me something in return". or

    "I do not want you to copy my creations, therefore it is my freedom to stop you from using something that I own".

    So how Mike, can you say that right now people are not able to freely create ?

    It appears a great deal of new content, that is NOT based on specific content that came before is being freely created all the time !!

    That freedom is achieved because of the copyright system, not inspite of it.

    People can create because they are FREE to create and not have that stolen, knowing there are laws, and protections in place to stop that illegal activity.

    That is the real freedom, and our permissive culture is our other great freedom, we are free to negioate with others to achieve a solution, and mutual benefit.

    that does not occur with theft, or copyright theft, its all for one, and none for the other..

    So you want to turn a permission culture into a fudial culture where the biggest and strongest rules by force. And takes what they want..

    OK, you can do that at your house Mike, for the rest of the planet, we have moved on somewhat from that primal society..

    I notice you did not propose an alternative, you never do, it appears most alternatives are too horrible to even think about.. compared to copyright today..

    Of course we can always take the military method of information security, keep it top secret, dont tell anyone.. and how is that going to benifit you Mike ??

     

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  39.  
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    Darryl, Dec 27th, 2010 @ 10:46pm

    Re: Re: Re: The very point of fair use is that it's supposed to allow for creativity without permission. NO MIKE

    yes, its funny how using facts and solid evidence tends to make you 100% right.. its not me, the facts speak for themselves.

    Its really easy to make factual claims, I feel sorry for Mike sometimes, who has to try to warp and twist the facts to suit.

    That forces him to make false claims, not based in fact, and once you go down that path it is easy to show it for what it is.. a falsehood to say the least..

    Because you have to open your article with statements such as this:

    The very point of fair use is that it's supposed to allow for creativity without permission

    The very point of fair use is clearly set out in law. And it is not what Mike says it is.

    He says its for creativity without permission and that is clearly incorrect also.

    Simply, fair use has specific uses, and they are clearly defined. Its not about creativity, its about protecting the creativity of others.

    Fair use does have a very very important role to play in society and culture, it allows for study, analysis, commentry etc on the work.

    Fair use is not and was never intended to allow people to take advantage of others works for their own profit of gains.

    Yes, you can profit from commentry that is fair use, but you cannot profit directly from the work. that is why you cannot put large chunks of others works in your own..

    and it is why you cannot use fair use and an excuse to directly profit from that work.

    Mike, it is not hard, it takes but a few minutes to find out the facts regarding fair use.. are you so busy you dont have the time to determine the facts Mike ?

    Or is it you would rather not rely on facts, and just make stuff up ?

    Either way, it does nothing for you, to show everyone who can think, that you either have no understanding of fair use and therefore should not be commenting on it, or you do know but prefer to tell untruths to push your point of view ?

    Of course people create on what has come before, they do not create on what has allready been created!.. Note the difference..

    As someone said, I can learn about the 12 bar blues structure, timing, and style, and I can create a blues song that is unlike is unique in its own right. I am not stealing from anyone, I am not using something someone elses has developed to make profit.

    I am using a style, the same style as all other artists employ.

    So when Eric clapton plays a blues song that is his own creation, it is nothing like when Jimi Hendrix plays a blues song in his own style.

    its just a shame that there is a growning group of people these days who think that they are not capable of original thought, or able to create something without having to steal the idea off someone else.. that is very sad indeed.

    that is also a huge part of the free software culture, it appears they cannot create original designs and innovations themselves, so they spend all their time, trying to work out how to get around the patents and laws that stop them from using the creations of people or groups are are capable of original thought.. and that have the talent to create without having to steal, sample, illegally copy, or whatever nice term you try to put it as.. It boils down to the same thing..

    Not being able to create yourself, and having to rely on others creativity for your own gains.

    Mike, it is also clear your own gains, is what is most important to you, as selling out your reputation seems easy for you..

     

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  40.  
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    Mike Masnick (profile), Dec 27th, 2010 @ 11:20pm

    Re: The very point of fair use is that it's supposed to allow for creativity without permission. NO MIKE

    Quite simply, its commercial in nature, so it does not come under fair use..


    Please learn what fair use means. If you think that if it's commercial it is not fair use, you failed, hard. Try again.

     

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  41.  
    identicon
    Wig, Dec 28th, 2010 @ 12:58am

    Just an idea

    What if we were to turn things around?

    What if YouTube, MySpace, SoundCloud etc used their algorithms to 'detect' possibly infrining content (as they do already), but in stead of blocking the upload, they do the following:
    - send a message to the uploader that the content gives a match for possible infringment, which will be reported to the rightsholder
    - report the upload to the registred copyright holder
    - stop

    Then if the registered copyright owner decides that the content is not fair use, they can file DMCA for takedown...

    Note that this places the burden of deciding if content is fair use with the rightsholder, and not with a third party. Further, the rightsholder is required to take fair use into consideration before a takedown can be requested.

    Just my thoughts...

     

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  42.  
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    PaulT (profile), Dec 28th, 2010 @ 1:11am

    Re: Re: Re: Re:

    Don't worry, the content is just as bad once you can follow it. I'd ignore him, but it amuses me when I reply and he has to spend another half an hour comprising a poorly worded wall of text that just proves he's a moron once again...

     

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  43.  
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    PaulT (profile), Dec 28th, 2010 @ 1:30am

    Re:

    "The DJs are trying to make their names on the backs of others without obtaining the rights to the music."

    As a matter of interest, apart from the online aspect, how exactly does this differ from a DJ creating mix CDs or mixtapes in his bedroom and distributing them physically? You know, like every DJ for decades has been doing.

    Also as a matter of interest, how does this differ from the promotional value of working DJs on radio and in clubs? Are you saying that hearing a song in a club (which the DJ may not have paid for directly - e.g. promo copy) has promotional value, but hearing it on a Soundcloud mix doesn't (bearing in mind that club mixes are often recorded and sold/bootlegged without money going back to labels)?

    "Things around here seem to be going from semi-informative and somewhat slanted to desperate and whiny."

    Mainly from the glut of recent AC posters, unfortunately.

    Are you the "semi-informative" AC on the Indian thread who replied with "lolfail" or "indeed"? I'm sure insightful comments like those are what you think Mike's not supplying.

     

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  44.  
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    PaulT (profile), Dec 28th, 2010 @ 1:36am

    Re: Re: Re: Re: Re: Re:

    "willfully ignorant beyond absurdity."

    That's the comment style of most of the ACs around here nowadays, unfortunately.

     

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  45.  
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    The eejit (profile), Dec 28th, 2010 @ 1:44am

    Re: Re: Re: Re: The very point of fair use is that it's supposed to allow for creativity without permission. NO MIKE

    Facts? FACTS?

    You wouldn't know the truth if it came and stamped its pointy stilettoes all over your crotch.

    Approximately 2/5ths of all computing advances have been made using open-source software. Ands yet "they cannot create original designs." You ever used the more recent Ubuntu?

    Original thought? Yeah, there's no such thing in the Faux News landscape.

    And Mike's reputation is his most important asset. That's why we come here.

    1/10.

     

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  46.  
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    The eejit (profile), Dec 28th, 2010 @ 1:47am

    Re: We ARE a permission culture, and artists have freedom to create without theft.

    Ever heard of Shakespeare? Biggest infringer around. Also, The Bard.

    Your Bard.

     

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  47.  
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    The eejit (profile), Dec 28th, 2010 @ 3:17am

    Re: Just an idea

    So long as the penalties were appropriate, I'd say this is how the DMCA should work. Guess it's already patented, though.

     

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  48.  
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    btrussell (profile), Dec 28th, 2010 @ 3:27am

    Re: Re: Re:

    MLB may have something to say about your copyright claim.
    :>)

     

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  49.  
    identicon
    JMT, Dec 28th, 2010 @ 4:28am

    Re: Re: Re: Re: Re:

    So man up and tell us who you are and what you've created, so we can all have a look/listen/read of it and see how you've managed to create content that does not in any way build upon earlier works.

    So far all you've offered is insults. Unoriginal ones...

     

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  50.  
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    vivaelamor (profile), Dec 28th, 2010 @ 5:48am

    Re: Re:

    "Robust software can easily reduce false matches to essentially zero.

    I'm surprised people are suggesting otherwise on a tech blog.

    Oh wait, this is Techdirt..."


    Did someone read a 'three steps to trolling' guide?

     

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  51.  
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    vivaelamor (profile), Dec 28th, 2010 @ 5:55am

    Re: Re: Re: Re:

    "I have to 100% agree, its just sad few here are able to see what you can clearly see.."

    Well that settles it.. if Darryl thinks you're right..

     

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  52.  
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    vivaelamor (profile), Dec 28th, 2010 @ 5:58am

    Re:

    "Between this and the Indian Copyright story up the page, I truly think that TD is losing it's edge. Things around here seem to be going from semi-informative and somewhat slanted to desperate and whiny."

    I wonder what the site was like when you thought it had 'edge'. I guess I wasn't reading it then because it's seemed very consistent to me.

     

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  53.  
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    Marcus Carab (profile), Dec 28th, 2010 @ 6:29am

    Re: Re: Re:

    But in reality you are no better than a person who is trying to download CP, or who goes into a bank and holds it up..

    ...then you've officially gone off the rails of "reality". I hope you realize it actually makes you sound kind of sick that you can casually compare child pornography to copyright infringement.

     

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  54.  
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    Marcus Carab (profile), Dec 28th, 2010 @ 6:33am

    Re: The very point of fair use is that it's supposed to allow for creativity without permission. NO MIKE

    Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. ... SO WHERE THE FU%$# is you're 'creativity' bullshit mike ??

    Umm, all of those things (with the possible exception of library archiving) are considered creative endeavors...

     

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  55.  
    identicon
    Anonymous Coward, Dec 28th, 2010 @ 6:46am

    Re: Re:

    As a matter of interest, apart from the online aspect, how exactly does this differ from a DJ creating mix CDs or mixtapes in his bedroom and distributing them physically? You know, like every DJ for decades has been doing.

    The magic word for today is "scale". When someone made a single mix tape and gave it to a single person, it is technically illegal but not worth the effort to prosecute. Further, if you are old enough to remember, a copy of a tape is a lower quality copy, such that by the 3rd generation, even on really good equipment, you have a crappy, noisy, almost useless "copy". In terms of scale, that illegal mix has a life span of maybe 3 copies. Oh, and the copying would effectively be in real time, so anyone wanting to copy it would end up paying a pretty sizable time penalty to do it. For the most part, the mix tape starts and ends with the one person who got it.

    The new way? You make a fully digital mix FLAC. You put it online, and it is downloaded by tens of thousands of people, who share it with their friends, perhaps hundreds of thousands of copies possible in a short period of time. The digital nature of these copies means that exact duplicates can be made in seconds. That file could end up anywhere in the world, and replicated any number of times without loss.

    "scale".

    Also as a matter of interest, how does this differ from the promotional value of working DJs on radio and in clubs?

    In both cases, they are paying licensing to use the music. They are also not putting it out there in a format that is easily copied (most radio stations toss their IDs over mixes, or cut the ends with IDs or voiceovers, and you cannot easily get a digital copy of what a DJ plays in a club, unless you bring equipment and tie into the mixing board. Oh, and any copy you made that way to distribute would be illegal, because they have performance rights but not distribution rights).

    "Things around here seem to be going from semi-informative and somewhat slanted to desperate and whiny."

    Mainly from the glut of recent AC posters, unfortunately.

    Are you the "semi-informative" AC on the Indian thread who replied with "lolfail" or "indeed"? I'm sure insightful comments like those are what you think Mike's not supplying.


    I don't think that individual lame comments are really the point. Rather, It's a sort of weird tone to many of the recent posts that seem very desperate, like TD is trying very hard to prove something that is being proved against them. This article is a pretty good sample, because the activity is so clearly not fair use. Only TD could try to come up with some way to make it fair use. The Indian story is another great example of TD not even understanding the current situation, and trying to play "got you" with the movie industry. It's sad, desperate, and more than a little whiny.

     

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  56.  
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    PaulT (profile), Dec 28th, 2010 @ 7:22am

    Re: Re: Re:

    "The magic word for today is "scale"."

    Irrelevant, as far as "The DJs are trying to make their names on the backs of others without obtaining the rights to the music" is concerned. The same principle remains, even if the scale is different. A bigger audience would mean a bigger name for the DJ, therefore a bigger target, therefore more likely he will legally produce and distribute mixes when established. he also establishes a fanbase that helps him promote the music.

    It might be a grey area legally, but to pretend that it's not the same principle as it was 20 years ago is disingenuous at best. The wider audience expands the potential audience for both the DJ and the tunes he plays, but that's about it.

    "that illegal mix has a life span of maybe 3 copies"

    Copy of a copy of a copy, yes. Hundreds of copies from the same master, no. Maybe you and I grew up in different eras or locations, but I certainly remember having access to bootlegs and other mixes that were mass produced back in the old school rave era in the UK, sometimes hundreds of miles from where I lived, as well as other ways of accessing "unauthorised" mixes such as pirate radio.

    I suspect the same was true of the burgeoning hip-hop era - popular mixes were distributed hundreds or thousands of times in order to make the name of the DJ (and as a side effect, create demand for the tunes he was playing).

    "You put it online, and it is downloaded by tens of thousands of people, who share it with their friends, perhaps hundreds of thousands of copies possible in a short period of time."

    That's a damn popular mix! Is that a realistic number? I doubt it, unless the mix is working very well to promote the DJ (and the tunes/artists contained in the mix). In which case, it's served its purpose, with the bonus of exposing the downloaders to tunes and remixes they have perhaps not heard before (and would never be played on mainstream radio). Win/win, for the most part. I somehow doubt a mix that was unsuccessful at promoting either the DJ or the music would be downloaded that many times.

    "you cannot easily get a digital copy of what a DJ plays in a club"

    Heh. Look up bootlegging sometimes, you'd be surprised at how often it happens/ed. I have club bootlegs from 1993-4, often found in the local record store the day after the gig I went to and sold for £5 each. I now have access to a large number of freely distributed rips of said tapes. I'm sure it's even easier in this age of laptop/digital DJing.

    "It's sad, desperate, and more than a little whiny."

    ...and yet, we only have your assertion to go on. No constructive criticism, no considered alternative viewpoint, no actual evidence to the contrary. Just "no u" and "lolwhut" in between the moronic likes of Darryl, who seems rather mentally disturbed.

    Oh, and I'd say that if TD is starting to sound a little strained, it's because Mike's largely been reporting the same issues for over a decade now, and those in charge still seem to be woefully ignorant. But, shoot the messenger, as it were.

     

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  57.  
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    pringerX (profile), Dec 28th, 2010 @ 7:50am

    Re: Re: Re: Re: The very point of fair use is that it's supposed to allow for creativity without permission. NO MIKE

    Nothing kills an argument faster than an ad hominem attack.

     

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  58.  
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    Marcus Carab (profile), Dec 28th, 2010 @ 8:07am

    Re: Re: Re: Re: Re:

    So I take it you are an artist of some form, then? And you are arrogant enough to believe that you haven't been building on a foundation of all past work in your medium and other media? Your creations, whatever they are, must be pretty damn pretentious.

    And even if you want to get specific, Mike's statement stands. What is the largest segment of "popular music" today? Nearly all sample-based genres, especially hip-hop and other DJ-produced music. Even though the big names with label backing are clearing the appropriate rights to samples before actually releasing tracks, all producers of that nature start their work with a toolkit of thousands of unauthorized samples.

    Todays popular music absolutely is "built on earlier works, without first getting permission" - and though in many cases permission is later secured, in many other cases albums sit on the shelves for months or years before someone notices an unauthorized sample and contests them (see Biggie's Ready to Die)

     

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  59.  
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    Marcus Carab (profile), Dec 28th, 2010 @ 8:12am

    Re: Re: Re:

    The new way? You make a fully digital mix FLAC. You put it online, and it is downloaded by tens of thousands of people, who share it with their friends, perhaps hundreds of thousands of copies possible in a short period of time. The digital nature of these copies means that exact duplicates can be made in seconds. That file could end up anywhere in the world, and replicated any number of times without loss.

    Shit - really? Well, we certainly have to put a stop to that. It sounds awful, all those people obtaining and enjoying music. Goddamn technology making our shared culture infinitely available and accessible all over the world - it's going to ruin humanity's true legacy: record labels. We have to stop this before it goes any further!

     

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  60.  
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    Marcus Carab (profile), Dec 28th, 2010 @ 8:17am

    Re: We ARE a permission culture, and artists have freedom to create without theft.

    "I give you permission to take that new car, as long as you give me some money"

    Really? Really? You still can't get past simplistic analogies to physical goods?

    If you believe that copyright infringement is as bad as theft, fine - make that case. But claiming they are the same thing is dishonest and amateurish.

     

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  61.  
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    average_joe (profile), Dec 28th, 2010 @ 8:21am

    The issue isn't to blame the tools providers for implementing such features, but to look more deeply at the state of copyright law today, where we're increasingly suffocating the real purpose of fair use, which was to allow such creativity, without first requiring permission. These filters don't understand fair use, so they assume anything that matches is infringement, and because of that, we all suffer.

    Obviously there's another side to this that you failed to bring up: the good that comes from it. I think your analysis would be more complete and compelling if you at least acknowledged the putative benefits. Without this, it's impossible to follow you to your conclusion that "we all suffer." How did you determine that in the net, that's necessarily true?

     

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  62.  
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    David Collado (profile), Dec 28th, 2010 @ 8:21am

    FAIR USE

    For a very clear and thorough discussion of fair use, please read this paper, "The Google Book Settlement and the
    Fair Use Counterfactual" (http://www.nyls.edu/user_files/1/3/4/17/49/1080/55-1%20Final%20Sag%2011.17.10.pdf)

    Sorry chumps, Mike is right. Here are a few nuggets of fair use wisdom for you to chew on:

    The fair use doctrine plays a vital role in balancing “the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one
    hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.”

    The fair use doctrine is particularly important in situations where the costs of obtaining permission outweigh the benefits of the use.

    And on those 4 factors commonly used by courts to decide on fair use:

    The case law under the first factor is dominated by two considerations: whether the use is transformative (reMIX!) and whether the use is commercial.

    Transformative uses are protected by the fair use doctrine because they lead to the creation of new works that do not substitute for the author’s original expression.

    A claim of transformative use is most obvious when the work itself is literally transformed; however, in many cases
    courts have held that other uses that do not literally change the work are nonetheless sufficiently different to constitute fair use.

    In its 1994 decision, Campbell, the Supreme Court clearly
    rejected the notion that commerciality by itself had any “hard presumptive significance.” Instead, the Court adopted a sliding scale for commercial use, arguing that because “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works . . . the more transformative the new work, the less will be the significance of other factors, like commercialism, that
    may weigh against a finding of fair use.”

    Class dismissed!

     

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  63.  
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    Marcus Carab (profile), Dec 28th, 2010 @ 8:24am

    Re: Re: Re: Re: The very point of fair use is that it's supposed to allow for creativity without permission. NO MIKE

    I think you have a fundamental misconception about the nature of the "four factors" test for fair use. You seem to think they are four bars that all need to be cleared, when in fact that isn't the case at all - the courts have made it clear that they are factors for consideration, and that different ones could carry different weight depending on the situation. They are not strict standards in any way.

    Before you go accusing other people of not knowing the law, you should maybe just double-check that you understand it yourself.

     

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  64.  
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    chris (profile), Dec 28th, 2010 @ 8:27am

    Re: The very point of fair use is that it's supposed to allow for creativity without permission. NO MIKE

    using copyrighted material for something that is intended to make a profit. (like a new music mix), Does not fall under FAIR USE..

    you have no clue how club DJ's work.

    DJ's get paid for their club gigs. they get paid to spin in clubs who pay ASCAP and all those other compulsory licenses for playing music in public.

    the music a DJ plays for profit IS licensed.

    the mixes in soundcloud are samples of their work. i guess you could construe that as marketing, but only a small number of club DJ's actually sell their mixes.

     

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  65.  
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    chris (profile), Dec 28th, 2010 @ 8:37am

    Re: Re: Re:

    Influenced is very different from "copied whole, including performance" as has happened here. The DJs are not performing music, they are performing mixing using other people's work... There is a huge (immense) difference between influences and replication.

    oh, i get it. you don't understand electronic music, so it's infringement. good to know.

     

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  66.  
    identicon
    Anonymous Coward, Dec 28th, 2010 @ 9:01am

    Re: Re: The very point of fair use is that it's supposed to allow for creativity without permission. NO MIKE

    ...and you think this is fair use because?

    try again.

     

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  67.  
    identicon
    Anonymous Coward, Dec 28th, 2010 @ 9:08am

    Re: Re: Re: Re:

    I understand electronic music just fine. I also understand what an existing recorded performance is: someone else's work.

    I can put a needle on a turntable and play someone else's music. Does that make me an artist? I can capture a sample and retrigger it to play. Does that make me an artist? I can duplicate a CD. Does that make me an artist?

    Sorry, just saying "you don't understand electronic music" is a major cop out, and admission that you see no value in the work of others.

    Heck, your little ID image pretty much shows you swim in the koolaid.

     

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  68.  
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    Marcus Carab (profile), Dec 28th, 2010 @ 9:23am

    Re: Re: Re: The very point of fair use is that it's supposed to allow for creativity without permission. NO MIKE

    You just made a major error in your understanding of fair use, by claiming that it is "quite simple" that commercial works cannot come under fair use - and that's blatantly untrue.

    Plain and simple: you are way, way off on that one. Not only have the courts made it clear that the first factor is only one of the four factors and thus non-determinative, the Supreme Court has explicitly stated that a work's commercial nature is not even the only element of the first factor test for "purpose and character"

     

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  69.  
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    Marcus Carab (profile), Dec 28th, 2010 @ 9:27am

    Re: Re: Re: Re: Re:

    I can put a needle on a turntable and play someone else's music. Does that make me an artist? I can capture a sample and retrigger it to play. Does that make me an artist? I can duplicate a CD. Does that make me an artist?

    Well said. Do any of those things alone make you an artist? Probably not. But does arranging several hours of songs into DJ sets that develop recognizable styles and signatures make you an artist? Or what about chopping up only parts of those songs to make mash-ups with new sound and structure? Or what about taking only the tiniest individual sounds from existing recordings and assembling them into entirely new and unrecognizable songs?

    All of those thing involve significant original creative expression - and while it's certainly not clear that those are all fair use, or that they are transformative rather than derivative, what IS clear is that the line is hard to draw. And that's why making "infringement" the presumption and "fair use" the defense creates an unfair imbalance.

     

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  70.  
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    PaulT (profile), Dec 28th, 2010 @ 9:30am

    Re: Re: The very point of fair use is that it's supposed to allow for creativity without permission. NO MIKE

    You may have stumbled across one of the reasons this is such a difficult and contentious issue.

    Much of the time, a club (or radio, or whatever) DJ doesn't have to consider the legal and licensing considerations of what they're playing. They don't generally have to submit any kind of playlist, and will gleefully play out new unsigned tunes or tunes of a grey market nature (such as bootlegs and mashups). It's between club owners and licensers as to how this gets worked into pay back to the artist - something I doubt happens accurately anyway. The mix tape, CD or MP3 is just a way to get their name out and market their skill.

    The internet has complicated things in that the DJ is now both the producer and distributor of their work on a wide scale. But, nobody's ever taken them through the legal maze of getting authorisation nor of licensing works back to their original producers. They just continue doing what they've always done, just with a larger potential audience to market to. You create a mix, put it out there and try to make a name for yourself to get new gigs - same as it ever was - only now it's suddenly something that needs to be shut down despite decades of the same tactics making money.

    Just another example of how the music industry has failed to adapt to the realities of the modern market.

     

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  71.  
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    The Infamous Joe (profile), Dec 28th, 2010 @ 9:50am

    Re: Re: Re: Re: Re:

    If you are implying that you are an artist, then I feel like you have confused "artist" with "arrogant asshole with a[n] [insert musical instrument here]". I'm not saying you don't have talent, as I haven't experienced your art-- probably because you spend most of your time making sure only the "allowed" people can experience it-- but feel free to share a sample of it with the class and let us be the judge, hmm?

    While you're deciding whether or not to give yourself free publicity (and probably deciding against it!?) take a look at thru-you and try to tell me remixing isn't a creative endeavor.

     

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  72.  
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    The Infamous Joe (profile), Dec 28th, 2010 @ 9:54am

    Re: We ARE a permission culture, and artists have freedom to create without theft.

    Do you have a blog or web site? You're a comedic genius! Pleeeeeease say you have a blog!

     

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  73.  
    identicon
    Anonymous Coward, Dec 28th, 2010 @ 10:12am

    Re: Re: Re: Re: Re:

     

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  74.  
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    Anonymous Coward, Dec 28th, 2010 @ 10:14am

    Re: Re: Re: Re: Re: Re:

    Marcus, all of that is stuff that you could easily program a computer to do, do well, and without issue. In fact, most radio stations use programs to organize their play lists, assure that the songs end at the right time for the news, etc. Are those computers artists? They put together 24 hours a day of songs, ads, promos, bumps, and leave open slots of news and DJ banter. They are talented!

    Those people who ran an old time repertory theathers, who careful planned and scheduled hours upon hours of movies, are they artists? Perhaps the projectionist that can manage to push the right combinations of buttons and load reels to play the movies? No, wait, he is being replaced by computerization, that can't be art. Hmmm.

    Maybe the guys who make sure that the TV shows play at the right time are artists. No, wait, that is all automated too. That ain't art.

    Sorry, not seeing the art here. Playing other people's recorded music and mixing it nicely is a skill, but so is tying your shoes or doing long division. It's hard to tell the difference, because both require nothing new, just a set of rote skills.

     

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  75.  
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    Marcus Carab (profile), Dec 28th, 2010 @ 10:43am

    Re: Re: Re: Re: Re: Re: Re:

    Wait, ALL of that? Have you ever even listened to sample-based music? I accept that simple disc-jockeys are being increasingly replaced by computers - but are you really going to sit there and claim that computers could replace the insanely complex sample work being done by producers like RZA, Dangermouse and The Neptunes to name a few? That's just ridiculous.

    Moreover, if you are going to define art as "things a computer can't do", then we're going to run out of art before too long. There are highly advanced programming projects out there that have computers writing stories, composing melodies and even generating original visual art - so are none of those things art anymore either?

    And how can you compare mixing music to doing long division? The difference is obvious, so you must be willfully ignoring it: there is one clear and correct answer to a division question, whereas there are an infinite number of possible ways to mix and match music. And given that the DJ industry is highly competitive, and lots of DJs develop massive followings based solely on their taste and choice, can you really claim that there is nothing but "a set of rote skills" involved?

    I've never heard two math-lovers get in an argument over which mathematician's long division is the best.

     

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  76.  
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    PaulT (profile), Dec 28th, 2010 @ 11:22am

    Re: Re: Re: Re: Re:

    "I understand electronic music just fine. I also understand what an existing recorded performance is: someone else's work."

    So, you admit don't understand electronic music. Or hip-hop. Or many other modern genres, stretching back to the original breakbeat artists.

    Good to know...

     

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  77.  
    identicon
    Huph, Dec 28th, 2010 @ 12:02pm

    Re: Re: Re: Re:

    Welllllll... *technically* everyone is kind of wrong in their assumptions.

    YES, modern popular music is built on earlier works, but not just in the sense of earlier works being vague "inspirational sources". I mean LITERALLY! Most popular songs today contain both musical appropriations ("sampling" like Biz Markie, Diddy, etc) and manipulation of pre-recorded sounds ("sampling" a la Brian Eno).

    Where everyone is wrong is in assuming these things are done without permission. Just take a look at the liner notes for Kanye's new album! It's basically an essay of CREDITS. And I guarantee you that each credited person gave clearance and gets paid. So, I think it is patently false to say that "nearly all popular music today is built on earlier works [ed: true], without first getting permission [ed: demonstrably false]" It's false simply because if it were done without permission, like it or not, it wouldn't be widely released which would preclude its ability to be popular. Let's assume that "popular" means that something has wide market saturation.

    Now, I suppose what people are talking about is this absurd mindset that 'nothing is truly original', which is also false and kind of stupid. Mainly, it's stupid because the people saying it clearly don't understand what the word 'original' means. I believe the word that these people are looking for is 'unique', not 'original'. While it's true that no music is wholly unique, that has NO bearing on whether it is original.

    For something to be original, it simply needs to be the origin of something. The Ramones were completely derivative of 50s bubblegum pop, yet they are still wholly the original punk rockers. And the Sex Pistols were derivative of them, yet they are still the original British punks. And John Lydon is a corporate shill these days, but originally he was an iconoclastic artist (see how it works?). It doesn't even have to be creative! When I leave for work, my original location is/was my home.

     

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  78.  
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    chris (profile), Dec 28th, 2010 @ 12:09pm

    Re: Re: Re: Re: Re:

    I understand electronic music just fine. I also understand what an existing recorded performance is: someone else's work...Sorry, just saying "you don't understand electronic music" is a major cop out, and admission that you see no value in the work of others.

    of course i value other people's work: all the music i listen to is made from someone else's work. saying i don't is also a cop out.

    i think you're confusing the finished product with the creation process. a mixtape from a DJ is a demonstration of the DJ's ability to cut and mix. no one for a minute thinks that a club mix or a mashup is an original compilation. the artistry isn't in the originality, but in the transformation. no one listens to "you humped me all night long" and says "wow that DJ mei wun is a hell of a guitar player!"

    you don't get where the artistic value lies, so you are calling it infringement. go ahead. it's not going to change anything.

    you not seeing the value of a remix culture doesn't change it's value any more than my hating country music or reality television changes their respective values.

    music mixes get made anyway and the damage done by a club DJ to the people they sample is non-existent.

    the music that made up 'the good old days' of rock and roll was 'stolen' too. white rock n' roll was 'stolen' from black blues artists who stole from folk songs. james brown stole tunes from africa, and every time an 80's song, which is a remake from the 60's gets sampled into some hip hop song, the end result is more art which is always a good thing and never a bad thing.

    I can put a needle on a turntable and play someone else's music. Does that make me an artist? I can capture a sample and retrigger it to play. Does that make me an artist? I can duplicate a CD. Does that make me an artist?

    if i consider your finished product to have artistic value, then yes. others will disagree. if you like creating it, then you should create it and share it. if people like it something cool could happen. if people hate it nothing bad will happen, so there's really no reason to not create and distribute.

     

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  79.  
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    chris (profile), Dec 28th, 2010 @ 12:25pm

    Re: Re: Re: Re: Re: Re: Re:

    Marcus, all of that is stuff that you could easily program a computer to do, do well, and without issue.

    yes you can program a computer to create art, it's called generative art and a small portion of it is awesome.

    it works like growing a flower: you skillfully tend the creation process, but the finished product is not something that you created. in that regard you are more like a horticulturalist.

    gardening may not be art, but people think it's cool and it doesn't hurt anyone, so people should be allowed to do it.

    there's also circuit bending, glitch art, and all sort of other experimental shit out there that people are making from existing things. the result is stuff that people like creating and sharing.

    Sorry, not seeing the art here. Playing other people's recorded music and mixing it nicely is a skill, but so is tying your shoes or doing long division. It's hard to tell the difference, because both require nothing new, just a set of rote skills.

    there's nothing wrong with being out of touch. you don't get it, that's fine. they still make mainstream media for folks like you. you're going to be fine.

    a bunch of legacy industries are also out of touch as well. the problem is the steps being taken to prop up all of this crumbling stuff affects people's ability to create things that people value.

     

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  80.  
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    chris (profile), Dec 28th, 2010 @ 12:30pm

    Re: Re: Re: The very point of fair use is that it's supposed to allow for creativity without permission. NO MIKE

    It's between club owners and licensers as to how this gets worked into pay back to the artist - something I doubt happens accurately anyway.

    and that's the royalty groups' problem, not mine.

     

    reply to this | link to this | view in thread ]

  81.  
    identicon
    Anonymous Coward, Dec 28th, 2010 @ 1:48pm

    Re: Re: Re: Re: Re: Re: Re:

    Marcus, all of that is stuff that you could easily program a computer to do, do well, and without issue.

    http://en.wikipedia.org/wiki/Generative_art

    Look! Apparently not art!

     

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  82.  
    identicon
    Anonymous Coward, Dec 28th, 2010 @ 2:00pm

    Promo Mixes (used to be called mixtapes) are made for promotional use only, and are not usually sold. The mixes on Soundcloud (or mixcloud, or podomatic, or itunes podcasts, or...) are free. They aren't "making money" off the backs of the other artists... Good mixes may help them get fans and bookings, but they aren't getting any direct payment by using the songs in the mix.

    Commercially released CDs have each individual song licensed before the finished mix is put together.

     

    reply to this | link to this | view in thread ]

  83.  
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    Marcus Carab (profile), Dec 28th, 2010 @ 2:46pm

    Re: Re: Re: Re: Re:

    You are right, to a point, about the situation with samples. But you are only looking at the songs that make it to the albums.

    It's not hard to find stories of songs and albums that could never be released, or that incurred huge costs to fix, because of copyright getting in the way of what was clearly an original and transformative work.

    The instrumental to the title track from Notorious BIG's Ready to Die had to be replaced because samples couldn't be cleared. The chorus of Kanye West's All Falls Down had to be re-recorded with a singer because he couldn't secure rights to the sample he used to build the original song. Dangermouse's recent album was never in fact released - stores sold cases with artwork, a booklet and a blank CD-R, while the tracks themselves were only available as bootlegs online. Then there's his famous bootleg Grey Album, or the more recent Magical Mystery Chambers by another producer, both of which received critical acclaim as highly innovative and original albums, but neither of which can be released officially (possibly for decades if the Beatles recordings turn into another Mickey Mouse)

    And it's important to note that no producer I've ever heard of clears samples in advance. They all build with whatever samples they feel like taking from wherever they feel like taking them - and don't think the songs are solely for personal use at this stage. They get shopped around to emcees seeking instrumentals, or played by DJs at clubs, or just passed around and shared among the underground hip-hop community. Sure, the small handful of big names have labels who clear all the samples before released - but meanwhile there is an incredibly rich and exciting ecosystem of sample-based music out there, and it's one of the major forces driving innovation in modern music as a whole.

    So while I do agree that the nature of musical derivation is somewhat different with sample-based music, I also think there are enough examples of pure and inspiring originality throughout a growing number of sample-based genres to validate it as an important artistic movement - and copyright is preventing it from reaching its full potential.

    When Andy Warhol painted soup cans, Campbells praised him and sent him free soup. When Dangermouse turns the White Album into an amazing new work (and rekindles interest in the Beatles throughout the hip-hop generation in the process) he can't even share it for fear of lawsuits.

     

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  84.  
    identicon
    Darryl, Dec 28th, 2010 @ 8:12pm

    Re: Re: Re: Re:

    So are you trying to say that CP is not 'reality' ? or that copyright theft is not also reality ?

    What I was casually comparing is the breaking of two different laws, where you consider one of those laws bad, and you are able to avoid breaking it, but you dont like the other law, so you prefer to ignore that law. Even though you are just as capable of stopping that practice, just as you can do with CP.

    How can you steal copyright ??

    Easy, that is a no brainer.. you copy a copyrighted work, without holding the copyright of that work..

    Done... see how easy that was !!!..

     

    reply to this | link to this | view in thread ]

  85.  
    identicon
    Ed C., Dec 28th, 2010 @ 10:33pm

    Re: Re: Re: Re: Re:

    If you were to make an infringing copy of my work, my copyrights over that work don't just suddenly disappear, or automatically become your property. Since I would, in fact, still have the copyright, it was not stolen.

    Done... see how easy that was !!!

     

    reply to this | link to this | view in thread ]

  86.  
    icon
    Marcus Carab (profile), Dec 29th, 2010 @ 6:15am

    Re: Re: Re: Re: Re:

    Easy, that is a no brainer.. you copy a copyrighted work, without holding the copyright of that work..

    Okay, go away now. You can't even move past basic points that have been made hundreds of times, and you just keep repeating the same stuff over and over again.

    Copyright is not theft, and if you are going to keep insisting it is then you are either stubbornly disingenuous or woefully unintelligent.

     

    reply to this | link to this | view in thread ]

  87.  
    icon
    Marcus Carab (profile), Dec 29th, 2010 @ 6:17am

    Re: Re: Re: Re: Re:

    Oh and regarding the CP stuff, grow up. It's the most ridiculously childish tactic in the book to try to tie a concept to something completely unrelated and much, much worse in the hopes of winning emotional sympathy for your cause. You are pathetic.

     

    reply to this | link to this | view in thread ]

  88.  
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    The Infamous Joe (profile), Dec 29th, 2010 @ 6:37am

    Re: Re: Re: Re: Re: Re:

    He's just following the Playbook of his masters. (You wouldn't steal a car, so don't download a song!) You can't blame someone without the capacity to think for himself for doing as he's told, you blame the people commanding him.

    I'm with you though, they need to stop calling copyright infringement theft, it's just like forcibly raping a baby panda.

     

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  89.  
    icon
    Marcus Carab (profile), Dec 29th, 2010 @ 12:40pm

    Re: Re: Re: Re: Re: Re: Re:

    I don't know - people keep accusing folks like Darryl of being paid shills, but if that's true, wow what a waste of money.

    Darryl's writing skills seem to hover around a Grade 10 level, and his debate skills are non-existent (he doesn't even seem to understand the most basic logical fallacies and he is unable to construct nuanced arguments that go any distance beyond his fundamental beliefs)

    If he truly is a paid shill, he's a poster-boy for the blindness and ineptitude of the industry paying him. I hope someone is checking on his progress, because even those who agree with his positions must be able to see that he is a useless advocate.

     

    reply to this | link to this | view in thread ]

  90.  
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    Marcus Carab (profile), Dec 29th, 2010 @ 12:43pm

    Re: Re: Re:

    Exactly - well said. And when you carry that knowledge into the realm of censorship, you have a problem: the principles of free speech do not accept a small margin of error - they are there to ensure no protected speech is suppressed. Which is why handing censorship duties over to a computer is almost in itself a violation of the First Amendment.

     

    reply to this | link to this | view in thread ]

  91.  
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    PaulT (profile), Dec 29th, 2010 @ 2:17pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    I think that "paid shill" is a way of maintaining some form of respect for fellow human beings. If he's paid to be this obtuse, stupid and incoherent, then it makes some sort of sense. Not on a truly logical level, but all he does is attack the site owners and regular posters with pro-industry propaganda. Not value for money, perhaps, but I could see their point.

    The alternative is to believe that he spends hours composing these reams of idiocy in his own time, for his own enjoyment to defend his own beliefs. it's a scary thought that people like that exist out there, and as such the former - however unlikely - is the preferred hypothesis...

     

    reply to this | link to this | view in thread ]

  92.  
    icon
    iveseenitall (profile), Jan 29th, 2011 @ 3:05pm

    The truth is that the only time you really need permission is when money transfers hands.
    Those that know that are doing ok. Those that don't are going away.

     

    reply to this | link to this | view in thread ]


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