Cracked Lists Examples Of Bad Copyright... Without A Single Actual Example Of Copyright

from the right-idea,-wrong-label dept

Sloppy use of the term "copyright" is nothing new. Plenty of people use the word incorrectly, usually by treating it as interchangeable with "intellectual property" and lumping patents and trademarks in with copyrights. While this is often a minor mistake that doesn't affect the message being conveyed, it's still wrong, and in a world where intellectual property is becoming a hotter topic of discussion, it's the sort of thing publications should really be more careful about. So it's amusing but somewhat annoying to see the popular comedy site Cracked (which has tackled such topics before) publish a list of "Things You Won't Believe Are Copyrighted"... without a single example that actually involves copyright. Of the five examples listed, three are about trademarks and two are about patents, and while the article makes some effort to distinguish the difference, it misuses the word "copyright" multiple times throughout. It also erroneously claims that "copyright law" is in the U.S. constitution—another common mistake that we see all the time, and which copyright maximalists would love you to believe is true.

Of course, in typical Cracked fashion, the article still includes some fantastic and hilarious passages about topics that will be familiar to Techdirt readers, such as their introduction to the problem of patents over genes in living organisms:

We've all had that moment where we're looking at an infomercial on TV and we think, "A blender that's also a hat? I thought of that first! I should have gotten a patent." It takes a special kind of person to proclaim the same thing while visiting a zoo, though.

And, more specifically, patents that cover elements of human DNA:

How the hell is that possible? Well, it's argued that when a gene is removed from the body and isolated, it becomes a separate chemical entity that can be patented. You know, like when you take someone else's lamp from their house and isolate it, it automatically becomes yours. Then you rent that lamp for thousands of dollars to people trying to do cancer research.

Or the fight over the trademark on the word "YUUUP!" between Dave Hester and Trey Songz:

Having carefully analyzed both sounds, we've reached the conclusion that they both sound like dickwads. Also, if Songz decides to agree to Hester's terms, what the hell is he supposed to tell him? "Yeppers"?

So while it's nice to see Cracked paying attention to these stories and bringing wider attention to the abuse of intellectual property law, while also offering some laughs, I hope that in future they'll try a little harder to be accurate—especially when, just last week, they had another article calling out other media for inaccurate/incomplete reporting. There was no need to keep referring to "copyright" throughout an article that has absolutely nothing to do with it, and conversely, there are plenty of actual examples of ridiculous copyright abuse to form one of the site's trademark lists (see what I did there?)



Reader Comments (rss)

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    Vidiot (profile), Oct 17th, 2012 @ 10:04am

    Watch it

    Hope you asked for permission to use those lifts from the Cracked article, because all their stories are patented.

     

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    Ninja (profile), Oct 17th, 2012 @ 10:04am

    Oooh you little weasel, we all see what you did there!

    But I also agree, we should not blame copyright for every single Intellectual Property absurd. We should blame Mike while making completely absurd and substance devoid comments on an article written by another person. Sounds fair.

     

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    pixelpusher220 (profile), Oct 17th, 2012 @ 10:12am

    Not in the constitution?

    Article I Section 8:
    "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

    Given that the argument is usually that current copyright law is broken because it isn't promoting progress...it's a bit of a nitpick position to claim copyright isn't in the constitution.

    Sure the 'word' Copyright isn't in there, but the express purpose of it is granted explicitly to Congress to make the laws to enforce that power.

    Congress certainly could decide 'not' to do so, but our copyright system today in the US is clearly founded in the Constitution.

    On a serious note, what are the arguments that it isn't 'in the Constitution'?

     

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      Leigh Beadon (profile), Oct 17th, 2012 @ 10:24am

      Re: Not in the constitution?

      On a serious note, what are the arguments that it isn't 'in the Constitution'?

      The linked article has Mike's detailed explanation, but basically, it's exactly what you said. The Constitution does not say anything about copyright or make any suggestions about what the contours of such monopoly laws should be, other than defining their purpose of "promoting the progress". In no way does the Constitution mandate copyright law -- it simply grants Congress the power to create some sort of monopoly for authors and inventors. The Constitution grants Congress a whole bunch of powers to do all sorts of things -- but leaves it to Congress to decide if, when and how to do them.

      The more factual statement would be "copyright law is permitted by the Constitution" (assuming it promotes the progress)

       

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        pixelpusher220 (profile), Oct 17th, 2012 @ 11:14am

        Re: Re: Not in the constitution?

        Fair enough, I still say it's fairly nitpicky to say copyright isn't there when the purpose of it clearly is.

        But yes the 'method', i.e. our current copyright system, isn't laid out, though the power to create one is.

         

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          Mesonoxian Eve (profile), Oct 17th, 2012 @ 12:13pm

          Re: Re: Re: Not in the constitution?

          Here's the actual text from the Constitution itself:
          "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

          Please show me any word that's spelled "copyright" or "patent" in the above.

          Congress can create an entirely new law, call it "Screw the Public", and enact even stricter laws and remove copyright and patents altogether.

          That's their power, granted by a document well past due of an update.

           

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          Leigh Beadon (profile), Oct 17th, 2012 @ 1:34pm

          Re: Re: Re: Not in the constitution?

          I guess, but I still don't see it as "nitpicky" at all. It's a pretty huge distinction. Saying "copyright is in the constitution" suggests, quite strongly, that it is enshrined and protected with specific language -- like the way we say "free speech is in the constitution" or "the right to bear arms is in the constitution". Copyright is absolutely *not* constitutionally protected in the same way as those things -- and suggesting that it is misleads a lot of people, reframing the debate about copyright in their minds in a highly inaccurate way.

           

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            TheLastCzarnian (profile), Oct 17th, 2012 @ 7:35pm

            Re: Re: Re: Re: Not in the constitution?

            I think that when trade secret laws were federalized, Congress lost it's focus on copyright and patents for the public good, and began to look at everything from a business standpoint.

            Really, why do we have laws protecting secrets? If you want to keep a secret, don't tell. Also, don't mass produce a product containing it. Otherwise, tuff shit.

            Reading the history of trade secret laws, they seem to have been a protection for those who wanted to have a patent, but couldn't get it approved. Now, how does that make any sense again?

            I think focusing on patents and copyright while leaving off trade secrets is doing a disservice to the community. Any lawyers feel like clarifying what the hell trade secrets are and what they are supposed to be used for?

             

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              Leigh Beadon (profile), Oct 17th, 2012 @ 9:01pm

              Re: Re: Re: Re: Re: Not in the constitution?

              I too would like to hear a lawyer weigh in on this, but generally speaking, trade secrets seem more reasonable. Under the USTA (which is not *quite* federal law in that it has only been ratified by *most* states, but not all), trade secrets are only protected if obtained by "improper means" -- defined as:

              ...theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.

              The law even specifically lists "independent invention" and "reverse engineering" as proper means, meaning they are totally legal ways to uncover a trade secret.

              The idea is that we don't need companies spending time playing spy-games. By making it illegal for companies to send surveillance planes flying over each others warehouses, we prevent companies from needing to constantly conceal all their facilities. That avoids what could be a pretty ridiculous arms race -- "do we need to make sure our factory walls block infrared cameras? do we need to scramble all our phone calls?"

              Instead, the act protects a secret once a company has taken "reasonable measures" to keep it secret, and does not require them to prepare for "flagrant industrial espionage" and offers them legal protection if such espionage happens.

              Now, I'm not too familiar with how this all plays out in practice, and it's possible that courts are providing trade secret protection too readily... but I'm not sure that's the case. In principle, though, trade secret law makes much more sense than traditional intellectual property in the form of a patent. It doesn't grant an artificial monopoly on an invention, but provides a small amount of security in maintaining a natural monopoly that was attained through genuine competitive invention/innovation and is retained through secrecy. Meanwhile, it specifically prevents the monopolist from interfering with others who have simply had the same idea or worked out the same solution to a problem -- even those who have done so wholly or partially by examining the existing product.

              Moreover, it's clearly a fairly weak law, given the lengths some large companies go to to keep their secrets to themselves manually anyway. They know that once the secrets out, most of the damage is done, even if they get some legal protection. Still, it's good that every single company doesn't need a whole devision devoted to spy-proofing their operation, and can rely on the courts to enforce a certain amount of "fair play" when it comes to information they are earnestly trying to keep secret.

               

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      Duke (profile), Oct 17th, 2012 @ 10:24am

      Re: Not in the constitution?

      On a serious note, what are the arguments that it isn't 'in the Constitution'?

      I'm not a US constitutional scholar, but I think you've missed the key part of that section. In full it reads:

      "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

      The way the Constitution is phrased, it is permissive; it says what the Congress can do, not what it must do. So this means that, if it feels like it, Congress can create something called copyright. This doesn't mean copyright exists; for that you need a separate act of Congress (or whatever it is called).

      As a second example, further down it says that "Congress shall have the power ... To declare War...". This doesn't mean that they have to declare war, just that they can. The Constitution allows for federal war (and copyright), but doesn't create it.

       

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        Michael, Oct 17th, 2012 @ 10:51am

        Re: Re: Not in the constitution?

        You have found the reason for the 'war on drugs' and the 'war on terror'!

        This explains why we are constantly involved in totally futile 'wars' on stuff for decades with no results. Our constitution says we have to declare war!

        And I just thought it was because our politicians were reactionary idiots.

         

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          Anonymous Coward, Oct 18th, 2012 @ 6:01am

          Re: Re: Re: Not in the constitution?

          >This explains why we are constantly involved in totally futile 'wars' on stuff for decades with no results. Our constitution says we have to declare war!

          >And I just thought it was because our politicians were reactionary idiots.

          The Two are not mutually exclusive.

          Having seen my share of _Storage Wars_ IMHO Dave Hester is a classic reality show villain/jerk. What is needed is prior art of people saying YUUUUUP. It needs to be done so he can be bid up in the courts.

           

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      AB, Oct 17th, 2012 @ 1:06pm

      just a thought...

      You know I just noticed that according to the wording those rights are actually only supposed to be granted to the " Authors and Inventors", not corporate representatives, estates, or other agents. It also does not seem to say anything about the rights being transferable.

      I wonder what affect it would have on public opinion if all those rights reverted to the actual "Authors and Inventors" as specified in the constitution. These would include corporate entities (such as bands or production and research companies) who were collectively responsible for larger works. For the purposes of determining corporate lifetimes I would propose they be considered ended any time the company is actively sold in whole (thus allowing stock market control to shift without damaging the portfolio but preventing the rights from ever transferring to a wholly different owner).

      It seems to me this would even encourage companies to be creative. It would also encourage umbrella corporations to maintain their offspring thus increasing jobs.

      Just thinking out loud, so to speak, this started out as simply a comment about the constitution's phrasing. Anyway I'm sure there are plenty of reasons I'm wrong, and plenty of people who will go to great lengths to belittle my thoughts while attempting to explain why. ;)

       

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    Anonymous Coward, Oct 17th, 2012 @ 10:16am

    This makes me sad

    Since Cracked normally has well/some-what researched articles. At least they're still funny as hell.

     

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      Anonymous Coward, Oct 17th, 2012 @ 12:10pm

      Re: This makes me sad

      It's hit or miss depending on the author. John Cheese or David Wong for instance will have great articles, others may just be pulled straight from wikipedia or some 10 year old website that they hope no one will notice.

      I've done google searches because I find something interesting and, say cracked has a 7 item list, found a 9 item list that they just took to things away from and paraphrased.

      Take everything there with a grain of salt and follow their source links before accepting it as fact.

       

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        Leigh Beadon (profile), Oct 17th, 2012 @ 1:26pm

        Re: Re: This makes me sad

        It's hit or miss depending on the author. John Cheese or David Wong for instance will have great articles, others may just be pulled straight from wikipedia or some 10 year old website that they hope no one will notice.

        Yeah - the staff writers are always best (and Wong is a senior editor who rarely writes, but when he does he's *brilliant*)

         

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    Jeremy, Oct 17th, 2012 @ 11:09am

    In fairness to cracked, they let anyone write for them.

    Also, how could they possibly have forgotten "Happy Birthday" ??

     

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    Kaega (profile), Oct 17th, 2012 @ 12:30pm

    Cracked does what they say

    I couldn't find the quote, I thought it was in the article about inaccurate stories in the media.

    Cracked writers have said in their articles that they're not necessarily required to fact check, and articles can be opinion based. I know they quite often pride themselves because they do at times put out heavy fact checked and cited articles, but their main focus is comedy.

    And in that article you mentioned, "5 Big News Stories That Left Out the Most Important Part", they admit they make mistakes.

    That didn't stop every news source and website on the planet (including, ahem, us) from declaring it to be the harbinger of sci-fi technologies that we've been dreaming about for years.

     

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      Leigh Beadon (profile), Oct 17th, 2012 @ 1:31pm

      Re: Cracked does what they say

      Cracked writers have said in their articles that they're not necessarily required to fact check, and articles can be opinion based. I know they quite often pride themselves because they do at times put out heavy fact checked and cited articles, but their main focus is comedy.

      I know, and that's why I wasn't really very harshly critical of them here. I still think it was a good article. But this is not a matter of some obscure error that needs to be picked up by fact checking -- this is them referring to a bunch of stuff as copyright even though they clearly have the knowledge of the situations to know that they aren't about copyright at all. It's kind of a silly mistake to make. It's like if they had an article called "The 5 Most [Whatever] Reptiles" and all the items were amphibians.

       

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    Anonymous Coward, Oct 17th, 2012 @ 1:59pm

    Cracked touts: "5 Everyday Things You Won't Believe Are Copyrighted"

    Leigh Beadon: does not believe any of these things are copyrighted.

    Perversely, Cracked's headline writer seems to have gotten this one right. Next up on Buzzfeed: "37 Unsubstantiated Rumors You Won't Believe Are True!"

     

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      Anonymous Coward, Oct 17th, 2012 @ 2:08pm

      Re:

      Exactly!
      Also, as the article pointed out, it's a COMEDY site. It's meant to be taken about as seriously as The Onion.

       

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        Leigh Beadon (profile), Oct 17th, 2012 @ 3:02pm

        Re: Re:

        It's meant to be taken about as seriously as The Onion.

        That's not really true at all. The Onion is all about obviously, purposely made up news events -- with lots of it being stuff that is fantastical/impossible. Virtually all of Cracked's content is based on actual facts and real things -- usually full of links to primary sources like studies, historical accounts, etc -- presented in a funny way.

         

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      Leigh Beadon (profile), Oct 17th, 2012 @ 3:00pm

      Re:

      heh, touche...

       

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    Fran, Oct 18th, 2012 @ 3:23am

    >

    Huh??

     

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    Corwin, Oct 18th, 2012 @ 12:18pm

    Copyright, patents, same fight

    and same solution : abolish the whole mess.

    Let artists sell their stuff directly. Or through fronts, who will proceed to rip them off. As usual.

    Let makers make things, so that they earn money to make more things. Inventors? Makers need them to invent marketable advantages. Better quality, cheaper materials, better duplication, better distribution, better marketing, better location, better products : they have to be invented, sure, but then they have to be sold where people know they can be bought.

    Then, just pay the people who make things enough to buy the things, and you get a system where things are priced at their marginal production cost.

     

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