Chris Dodd Sounding Like A Broken Recording Industry

from the and-so-it-goes dept

Ever since the failure of SOPA, MPAA boss Chris Dodd has been making the rounds, giving the same damn stump speech over and over again. We've reported on it before, but he's done it again, this time at the National Press Club. As the transcript shows, it's the same old story.

Play up just how amazing the movie industry is because it "tells stories." Then, transition into just how many "jobs" the industry creates -- and focus on how those jobs aren't the glamorous ones, but those everyday people (the "little people" if you will) -- and always claim that there are over 2 million of them, even if that's massively exaggerated. At least this time he put in the caveat that he was including people who are both "directly and indirectly" in the industry (plus he admits that he's including TV people, as opposed to just movies) -- such as the people who "prepared our lunch today." Of course, I would imagine those people would likely be preparing lunch for someone else even if the movie industry disappeared. He also highlights that the industry creates jobs across the country, naming New Mexico, Georgia and North Carolina. Don't think those are by accident. Those are three states that have provided significant subsidies to the Hollywood studios, and are some of the very few such programs not rated as a dismal failure for the local economy. He claims that "You can go down a list of states all across the nation and find one economic impact success story after another." He conveniently leaves out that the evidence actually shows that most of these are actually not economic success stories at all, but dismal failures that funnel taxpayer money from states to Hollywood studios which bring in their favorite crews, and hire few locals.

But, then, of course, there's the key section on "technology" and innovation. At first he tries to play up all of the "innovation," but again, leaves out how many of these "innovations" wouldn't actually exist if the MPAA had its way in the past:
Because movies matter—to more people, in more places, who want to watch them at more times, across multiple platforms—the film and television industry is continuously innovating to meet that demand.

Today movies and TV shows can be viewed in theaters, on the big screen, or at home on TV screens, laptops, iPads, Kindles and smart phones.

There are more than 375 unique licensed online distribution services around the world that provide high-quality, on demand film and television shows, offering the easiest, fastest, safest, highest quality product and viewing experience possible.
That the industry was dragged, kicking and screaming, to support many of these things is sort of left out. Also, the fact that the industry has worked ridiculously hard at crippling many of these services, making them way too expensive and annoying (how many services require you to watch a video within 24 hours, because, apparently, no one in the MPAA has kids and recognizes you might want to start a film one night and finish it the next?) seems kind of important, but not mentioned.

There is one thing we agree on:
These innovations are great for consumers. I'm not exaggerating when I say a new golden age in television and film is being ushered in. You can watch more content than ever, through more channels, and the quality of the movies and TV shows is outstanding.
So why did the MPAA fight nearly every one of these changes all along? And why is it still trying to do so? Well, then we get to the usual talk about how the next wave of "innovation" isn't about providing more value to those consumers. It's not about extending the golden age. It's about how can Silicon Valley help the MPAA stop piracy:
This is why it's so crucial that we protect this content from theft. Because consumers deserve to enjoy first-generation versions of their favorite films—not secondhand, pirated films-of-films shot and recorded inside a movie theatre on a mobile phone.
First off, it's not theft. Stop saying it is when it's not. It just makes you look totally out of touch. Second, you know what helps consumers get good works? Making them available in convenient ways at reasonable prices -- something the big studios frequently work against, despite his list of services. Finally, you know how to beat the "secondhand, pirated films-of-films shot and recorded inside a movie theater on a mobile phone"? You offer more convenient ways to view the actual product. I don't know why Dodd and the MPAA think that anyone really wants to watch a crappy cammed version of a film shot from a mobile phone. They don't. Give them legitimate reasonable options and they prefer that.
We must strike a balance between the desire for a free and open internet and the protection of intellectual property. The future cannot be about choosing one over the other—between protecting free speech OR protecting intellectual property—it must be about protecting both
There is no "balance" needed here. What we need is a free and open internet, period. Protecting IP is a fool's errand. Focus on providing more legitimate services with better service, more convenience and reasonable pricing and there's no need to protect things. People pay for Netflix, Spotify and others because they're simply more convenient. Do more of that and stop worrying about piracy.
We can and must have an Internet that works for everyone, and we can and must have protection for the creative industry’s genius that intellectual property represents.
This assumes that protection is a reasonable goal. It's not. It will always be costly to protect and will always have collateral damage. Considering you can solve the problems merely by providing better services, stop worrying about piracy, and just start helping more companies innovate cool additional value.
There should be no confusion. For the more than two million Americans whose jobs depend on the motion picture and television industry “free and open” cannot be synonymous with “working for free.”
I'm sure whichever staffer wrote this line thought it was really clever, but what does it even mean? No one is asking anyone to work for free. Just moments before in the speech, Dodd was talking about how the industry was doing great and growing. More movies than ever before are being made and there are all sorts of new opportunities. Focus on those.
To protect IP, and the openness and freedom of the Internet, we must together innovate our way through these challenges. Fortunately, Silicon Valley and Hollywood are making some progress on this front.
No, the challenge is not how to "protect content." The challenge is "how can we make money" and the tech industry has been providing answers to that over and over and over again, creating new and useful tools and services that help the creation, promotion, distribution and monetization of movies. And the industry has either fought to block or simply looked down upon nearly all of them, until suddenly they're "big enough" to matter, and then they take credit for those innovations. Don't "work together" on the useless goal of "protecting content." Focus on innovating in a way that makes consumers better off.

It's a simple thing: are you adding value to the consumers, or are you trying to stop them from doing something? If you're doing the first thing, you're moving in the right direction. If you're doing the latter, you're throwing money away on the impossible. While Chris Dodd represents the movie industry, the joke around here for a while has been that industries fighting the future "sound like a broken recording industry." Dodd's been telling this same tall tale for a year now, and it's time he got some new material. Stop focusing on ways to stop people from doing stuff, and start looking for ways to help them get more value.


Reader Comments (rss)

 

Re: Re: Re: Radical Mike

"Again, assuming the balance/bargain paradigm is valid (and I see no evidence put forward by Mike or anyone else that it isn't)"

Let me see if I can take this on.

Bargain:

You've described this as a trade: Monopoly in exchange for growing the public domain.

This doesn't make sense. Why would we as a society shrink the public domain (without copyright, everything is public domain) in order to grow it? Society doesn't gain anything from this bargain.

In order for this bargain to work, you need another assumption: The rate of creation will be higher when monopoly rights are granted. This is a very mercantile view that conflicts with modern economics; ordinarily, we assume competition, not monopoly will optimize the rate of creation. But, for the sake of argument, let's grant this assumption and say that monopoly is an effective incentive to create. Now, our bargain looks like this:

Monopoly in exchange for increased creation.

We have to ask: Increased creation of what? Art? Why does society want that? Society doesn't benefit merely from the creation of art. Art is amazing and important, and vital to the development of society. But simply creating it isn't enough. Art is of no use to society if it sits in a warehouse an nobody sees it.

Society gets a raw deal if all it gets is creation, because that's not what society really wants. Creating art doesn't need incentive; it happens all the time. Creation is what human beings *do*. What society really wants is for that art to spread. Strong cultures are built on ideas that are widely spread and accepted, and what society really wants is a strong culture. Now, our bargain looks like this:

Monopoly in exchange for stronger culture.

Now, finally, things are starting to make sense. Copyright isn't an incentive to create; creation doesn't need further incentive. What needs incentive is *publishing*: Making art public, and distributing it widely. Strong societies are built on the art that is published, not the art that is locked in vaults.

In a pre-internet world, this bargain made perfect sense: Publishing was expensive, and it was more profitable to publish (pirate) other people's works than your own because the fixed creation costs could be bourne by someone else (i.e. the creator). This in turn was a disincentive to publishing new works, because publishers could make more profit publishing old works than new ones. Copyright fixed this: It made existing works scarce (and thus more expensive), and thus made new works more profitable than old ones.

So, really, the bargain that made sense was this:

Monopoly in exchange for publication.

Society gets what it wants (widely distributed public art), and creators [ahem] publishers get a profit. But, this bargain no longer makes sense. The internet means publication is no longer expensive. In fact, it's virtually free. And, we've discovered that people will publish widely given the opportunity to do so cheaply. We publish EVERYTHING, just ask Facebook. In fact, copyright is now a *disincentive* to publishing, because monopoly rights create scarcity, which makes publishing (and creation) more expensive.

So, my evidence against the bargain paradigm is this: Society no longer needs the copyright bargain to get what it needed (publication and distribution of art).


Balance:

You described the private interest of creators as being "able to earn a living off their work so that they don't also have to work a day job."

As far as I can tell, you didn't say what you thought the public interest was, so I'll quote the person you were responding to: "having works in the public domain as fully and rapidly as possible". This is very similar to the public's side of the bargain: the public wants publication and wide distribution.

The balance paradigm assumes an either/or situation: Either creators earn a living, or the public domain is fully and rapidly filled. It also assumes that, without copyright, things are out of balance. Without copyright, society wins: The public domain is full, and creators don't earn a living. Therefore, copyright is assumed to be sufficient to allow creators to make a living: If you have it, creators will make money. It is also assumed to be necessary: without it, creators will not make money.

I've responded to the fallacy that copyright enables creators to live off their work in another post, so I apologize if I repeat myself. The usual answer around here is to attack the second point: Copyright is not necessary to earn a living off your work. There are numerous other business models that are as effective or more effective than copyright. The specific examples are numerous, but they usually boil down to advertising, merchandising, performing, or patronage. This site is dedicated to this kind of example, and I'm not going to spend much more time on it unless you challenge me on this point. There are plenty of ways for creators to make money without copyright.

It turns out, not only is copyright unnecessary to make a living as a creator, it's also insufficient. Nobody is obligated to buy from a creator just because it was created under copyright. They still have to sell their work. And, as we can tell from the fact that 99.5ish% of copyrighted works are out of print, most work under copyright cannot be sold because there is simply no market for it. Clearly, the 0.5% of copyrighted works that *do* sell are selling for reasons other than simply having copyright.

In fact, what is being sold is not the creation, but the reputation of the creation, or that of the creator. An artist (or a creation) with no reputation can't sell anything without a huge marketing campaign — and a marketing campaign is really just an expensive but quick means of building a reputation. On the other hand, an artist with a strong reputation can literally sell anything (see: urinals disguised as public art in the Met).

Long story short, copyright is neither necessary nor sufficient for creators to make money. That means that it is irrelevant to balancing the need for creators to make money with the public's need for a strong public domain. The balance paradigm doesn't hold water.

Postscript:

So, why *do* we think copyright can help creators make money? The answer is in the way copyright incentivizes publication. In the "bargain" section, I pointed out that, under copyright, new works become cheaper to publish than old works. Historically, this meant publishers had incentive to support the professional creation of new works by exploiting the copyright. However, now that the internet has made self-publication widely possible, the publishers that traditionally offered that money to creators find themselves without a product to sell, and thus without money to offer to creators. So, while copyright was of limited benefit to creators in the past, this is no longer the case.
—Devonavar

(Flattened / Threaded)

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    That Anonymous Coward (profile), Feb 15th, 2013 @ 7:53pm

    "We can and must have an Internet that works for everyone"

    So that is the source of the problem, he can't figure out how to use the internet.

     

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    Anonymous Coward, Feb 15th, 2013 @ 8:00pm

    So much for his "innovation" argument.

     

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    saulgoode (profile), Feb 15th, 2013 @ 8:09pm

    There is no "balance" needed here. What we need is a free and open internet, period.

    This. 100 times, this. If a particular business model can not find a way to be consistent with free and open communication between the citizens of this planet, that business model needs to be abandoned.

     

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    shane (profile), Feb 15th, 2013 @ 8:13pm

    Awesome

    This is about as blunt as I remember ever seeing a Masnick article being on this topic. I'm a fan.

     

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    James Plotkin (profile), Feb 15th, 2013 @ 8:15pm

    Radical Mike

    I agree that innovation is important and that the content industry has historically fought against it. This much isn't very controversial.

    Where I'm forced to disagree with you is when you say things like:

    "There is no "balance" needed here. What we need is a free and open internet, period. Protecting IP is a fool's errand. Focus on providing more legitimate services with better service, more convenience and reasonable pricing and there's no need to protect things."

    It isn't an either or thing Mike. Innovation and protection of IP rights can be complimentary. I don't think overbearing draconian protections are needed and I would agree if you said that most national IP laws could use an overhaul in light of today's social reality; but there's a difference between copyright and patent reform and (copyright and patent) abolition.

    You haven't actually made out a case for why no IP rights in any form whatsoever are appropriate. Just saying that innovation will solve the content industries problems doesn't make it so.

    What I think is somewhere in between yours and Dodd's position. I think that the content industry must stop fighting against new technologies. I don't think it's ok for one of the main revenue streams of a record label or movie studio to be suing its customers. At the same time, I think reasonable IP protections should be on the books to allow rights holders to prevent illicit or non-legitimate use of their material. Not everyone is a Netflix. Some people really do want everything for free all the time, creators and rights holders be damned. Surely these are not the Netflixs and YouTubes of tomorrow. The ones that are and are willing to work with rights holders shouldn't have anything to fear.

    A free and open Internet is a laudable objective and one that I think is worth pursuing with the understanding that national and international laws (on topics including but not limited to IP) must be given effect.

    You take a very radical position on this issue. It seems to me that a radical position in either direction on this debate is not only unrealistic, it's naive. It's naive of rights holders to think they can do anything to stop innovation. It's also naive of IP abolitionists to think that the optimal situation is one in which creations of the mind garner no legal protection whatsoever.

     

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    Jay (profile), Feb 15th, 2013 @ 8:31pm

    Seriously?

    First, I and a few others would take the position that copyright should be abolished. Not Mike, who seeks to find good evidence that copyright monopolies are used to benefit the public. If it doesn't do that express purpose of Article 1, Section 8 of the Constitution, then it it's useless.

    But let's discuss the "abolishment movement" which you claim that Mike is a party to...

    He's not. He makes an informed decision that copyright doesn't create new works by giving temporary monopolies. But I would explain that copyright harms culture by making it harder to create online libraries of content or build communities for the discussion of material.

    If I want to tell people to watch Game of Thrones, I'm not going to wait for a TV broadcast on a specific channel which costs me $50 a month plus $25 for a premiere channel to wait just once a week for a show that most people would like. That doesn't make sense when the internet allows for the removal of artificial barriers.

    If you're looking to strike a balance on copyright, I'm pretty sure you're lookingfor the wrong things to come out of it. Dow me someone that's made a living off copyright and I'm pretty sure it's someone limiting the rights of others to share content.

     

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    Anonymous Coward, Feb 15th, 2013 @ 8:36pm

    Re: Radical Mike

    "I think that the content industry must stop fighting against new technologies."

    Universal v. Sony stopped that fight in the US. The issue is not one of authors v. inventors, but one of authors v. persons who take the work product of inventors and then build a business model around the work product that relies in major part on the unlawful dissemination of authors' works.

    Engineers and scientists continually push the envelope of technology and craft, almost on a daily basis, new devices and methods that facilitate the transfer of data files. They do yeoman's work for which they deserve credit. The same with those who create the works of authorship that can make beneficial use of these data transfer inventions. Most business users of such inventions play by the rules, but there are far too many who refuse to do so. It is the latter who deserve scorn, and I personally see nothing fundamentally wrong with holding them accountable.

     

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    tanj, Feb 15th, 2013 @ 8:47pm

    Re: Re: Radical Mike

     

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    cpt kangarooski, Feb 15th, 2013 @ 8:47pm

    Re: Radical Mike

    but there's a difference between copyright and patent reform and (copyright and patent) abolition.

    I'd disagree. They're the same thing, just at different points along a continuum.

    Copyright (and patent) law should serve the public interest. But two competing alternative laws might serve the public interest to differing degrees. We should choose whichever serves the public interest most; in fact, we should aim to maximally serve the public interest.

    In order to do that, we're necessarily going to have to look at how the public interest would be served by abolishing copyrights (or patents). And it would be served -- there is a strong public interest in having works in the public domain as fully and rapidly as possible, and having no copyright maximizes the satisfaction of that interest. Only the equally important interest in having as many works created and published as possible (some of which would be regardless, and some would be but for copyright, and some would not be but for copyright) makes it possibly worth not abolishing copyright (or patents, mutatis mutandis).

    Abolition serves as our baseline for comparison: any proposed law that is worse for the public than no law at all, can be dismissed straight away. And abolition is the ultimate alternative proposal. It could be, under the right circumstances, that there is no possible copyright law better than no copyright law at all. In that case -- and only in that case -- should we abolish copyright.

    Mike may think it's come to that, and if so, it's not a radical proposition, it's a perfectly reasonable one following the same logic as most everyone else seeking reform.

    At the same time, I think reasonable IP protections should be on the books to allow rights holders to prevent illicit or non-legitimate use of their material.

    That borders on the tautological. If there is a protection, whatever it applies to is illicit or illegitimate when done by non-rights holders. If all you're worried about is treading on toes, abolition would solve your problem quite neatly: all the piracy would be licit and legitimate.

    I suspect that's not appealing to you, so maybe you should tell us what you really want to accomplish.

    Some people really do want everything for free all the time, creators and rights holders be damned.

    I don't understand why this is bad. It may be impractical, it may be short sighted, and we may want to prohibit it for much the same reason that we should eat a balanced diet instead of gorging on deserts all the time, but in an ideal world this is certainly what we would want, and even if the ideal is unachievable, we really ought to strive to come as close as we can.

    A free and open Internet is a laudable objective and one that I think is worth pursuing with the understanding that national and international laws (on topics including but not limited to IP) must be given effect.

    And do you think that we ought to change those laws where a conflict arises? At least sometimes?

    It's also naive of IP abolitionists to think that the optimal situation is one in which creations of the mind garner no legal protection whatsoever.

    To be specific, the ideal world would be one in which everyone who wished to create and publish works was able to do so to the upmost of their abilities, and where everyone who wished to use works, to enjoy them, to share them, to modify them, etc. could also do so to the upmost of their abilities. It's one in which everyone has a personal library consisting of absolutely every work that exists, no one has to pay for copies, and authors don't so much as try to restrict the full flow of knowledge because their financial concerns are fully taken care of independently of that.

    Obviously this utopia isn't going to happen. But the optimal situation is indeed one in which the creations of the mind have no legal protections, because there is no need for those protections and not even an iota of desire for those protections.

     

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    weneedhelp - not signed in, Feb 15th, 2013 @ 8:56pm

    Sad how money changes people

     

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    gnudist, Feb 15th, 2013 @ 9:04pm

    "Say that again"

    Chris Dodd Sounding Like A Broken Recording Industry

     

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    Jesse (profile), Feb 15th, 2013 @ 9:29pm

    Chris Dodd Sounding Like A Broken Recording Industry

    OH SNAP

     

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    GreenPirate (profile), Feb 15th, 2013 @ 10:18pm

    We Make Our Own Fun

    Someone tell us why we need this industry? Those people who lose their jobs can go work in insurance or some other legal field where you manipulate the law to prey on people for a living.

    For the rest of us, who cares about the MPAA? I don't care. If they get hit by a meteorite and die today it will be a blurb on the news, probably followed by a week long celebration and sighs of relief and then the world will keep on "pirating" aka living the way we have always done.

    MPAA is so insignificant and behind the pace of today's world that nothing they say deserves serious attention or critique.

    If there is anything practical to be gained from this post, it is that we should turn deaf ears to these clowns and focus on being productive while they are busy trying to figure out wtf is going on.

    We continue to innovate regardless of what they say. Innovators are not competitors today. Stand together as a relevant industry against this feeble tyrant.

     

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    Devonavar, Feb 15th, 2013 @ 10:21pm

    Working for Free

    " “free and open” cannot be synonymous with “working for free.”

    ...but what does it even mean? No one is asking anyone to work for free."

    Think literally. *You* may not be asking anyone to work for free, but as an film industry tech, *I* get asked all the time, often by the same people you are complaining about. The film industry is built on the back of free labour.

    Much of the explosion in film production that you cite falls in the category; there's a large amount of personal or art projects that are made entirely from free labour. It's virtually impossible to built a career in film without working for free at least sometimes.

    I made my peace with this long ago (the free gigs are generally the most rewarding to work on), since it's perfectly possible to find paid work. As you are well aware, just because you *can* get free labour doesn't mean people aren't willing to pay for it if you offer them good value. This isn't a complaint. I just want you to know that Chris Dodd really does mean "working for free" when he says "working for free". There's nothing deceptive in his meaning.

     

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    JEDIDIAH, Feb 15th, 2013 @ 10:31pm

    Re: Working for Free

    I was just watching "The Captains" on Netflix streaming and one thing that was stringing was how demanding the work is. Hollywood expects you to give your life over to them and they can expect that because there are 100 other guys lining up for your spot. If you aren't very well established, you can't say no without turning your back on your profession entirely.

    No family life. Divorce. Working 12+ hour days. It sounds like something out of the guilded age.

    When it comes to abusing the talent, consumers are amateurs.

     

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    G Thompson (profile), Feb 15th, 2013 @ 10:48pm

    Re:

    He needs to talk to Steele then he'd know that the Internet is for making money from Porn trolling

    /sarc

     

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    James Plotkin (profile), Feb 15th, 2013 @ 10:56pm

    Re: Re: Radical Mike

    With respect, I think that the Napster and Grokster case and the rash of copyright infringement lawsuits against downloaders between 2004-2007 are proof that the Sony case was not the last chapter in the "content industry vs. innovation saga".

    "The issue is not one of authors v. inventors, but one of authors v. persons who take the work product of inventors and then build a business model around the work product that relies in major part on the unlawful dissemination of authors' works."

    I think we're saying the same thing here. Like I said, I'm all for legal action against those who flagrantly flout the property rights of creators. I'm just against the content industry using the law as a way to stifle innovation that conflicts with their current business model.

    Again, I think we agree.

     

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    Internet Zen Master (profile), Feb 15th, 2013 @ 11:01pm

    Interesting discussions with my Business Law Prof about these topics

    We're in the middle of covering Trademarks, Patents and Copyrights, so I've effectively become the devil's advocate for the class, constantly asking questions like "what's the rationale behind copyright being life plus 70?" His first answer was simply "because the legislators decided it would be," but after a little pressing, he admitted that it was because of lobbying efforts (even got him to discuss how copyright/trademark crazy Disney is by pointing out that the Sonny Bono Copyright Extension Act is more well-known as the Mickey Mouse Act).

    He even wrote down on the board to show the class how groups like the RIAA calculate the absurd damages they claim in court (and that's before treble damages).

    He ended the copyright section of the chapter by explaining (after I'd pointed out that the lawsuit campaigns by the RIAA had completely backfired), that I was correct, and that Hollywood has actually started offering more incentives for people purchase their product instead of pirating it (see: additional content aka bonus tracks/director's commmentary, etc, etc.) I was sorely tempted to point out that all that additional content usually comes with crippling DRM, but I decided it was probably better for the entire class if the professor got to patents, because we might never have gotten out of copyright before the quarter was over (other students started asking questions after me, and the class went over by five minutes for the past two days while we went over this material...

    But I digress.

    No one can deny Hollywood has been trying to offer incentives for people not to pirate, so it's not like they're completely blind to their dying business model (albeit those "incentives" now come with a shit-ton of DRM strings attached). And it's certainly a step in the right direction from Hollywood, I'm sure they'd be much more willing to move into the 21st century if we did some extra heavy reform on our copyright laws (perhaps returning them to the renewable every twenty-eight years or so), and doing what Canada did and limit the maximum damages for infringement to $5,000 max for starters...

    That said, none of this is likely to happen if Chris "Broken Record" Dodd is calling the shots for groups like the MPAA. The sooner he's gone, the better.

    As the Zen Master says, "We'll see."

     

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    That Anonymous Coward (profile), Feb 15th, 2013 @ 11:34pm

    Re: We Make Our Own Fun

    Because Chris Dodd flat out admitted he buys the laws he wants, and to not pay any attention allows them to try crap like SOPA and sneak it past us.

     

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    James Plotkin (profile), Feb 15th, 2013 @ 11:40pm

    Re: Re: Radical Mike

    Thanks for the reply. Very thoughtful.

    "Copyright (and patent) law should serve the public interest. But two competing alternative laws might serve the public interest to differing degrees. We should choose whichever serves the public interest most; in fact, we should aim to maximally serve the public interest."

    I unreservedly agree with the very last part of your statement. A state of affairs where the public interest is served to the highest possible degree is desirable.

    I'm not sure what you mean when you say "competing alternative laws". Are you referring to the juxtaposition of copyright law with the freedom of speech? If you wouldn't mind clarifying this point I would be happy to respond to it.

    On the point of abolishing copyright, I agree with you that it is possible that the best state of affairs would be to abolish it outright. Furthermore I don't think that the people who propone the abolition of copyright law are "stupid" (or at least they're not stupid simply because they hold this position). But before we even have this discussion, it's pertinent to examine the nature of copyright law.

    We all know that intellectual property rights are conferred on creators as intensives to create. The legislator makes a bargain with creators granting them limited monopolies over their work in exchange for that work entering the public domain upon expiry of the right. This is the bargain theory.

    However, there is another way of looking at IP rights as a balance between the private interests of creators and the public interest of society as a whole. This isn't an alternative way of looking at IP rights; It's perfectly compatible with the bargain mentioned above. The private interest of creators is to be able to earn a living off their work so that they don't also have to work a day job. Here is where I agree with Dodd in that not everyone in the entertainment business is filthy rich.

    If you (like me) think that the balance is out of whack, then you're not for the abolition of copyright because by recognizing the legitimacy of the balance, you necessarily recognize the value of copyright's existence- namely to maintain the balance between the private and public interest. It's the same reason we have laws for other forms of property.

    I don't want to get into a lesson on the law of property here, but one brief example is adverse possession (a.k.a. squatter's rights). The common law recognizes a persons absolute (subject to the government right of expropriation of "eminent domain" in the US) right over their land. However, the common law has decided that it's in the public interest for land to be used and for productivity to be increased. The courts therefore developed a doctrine by which a person with no rights in land may acquire those rights though possession of the land that runs counter to the title of the rightful owner. If a person holds that land for a prescribed period of time (and fulfills all the other requirements of the adverse possession doctrine), they become the rightful owner of the land and their claim is unimpeachable, even by the old rightful owner.

    You can use abolition as a starting point if you want. I just don't think it makes sense given that our social justification for copyright is based on this bargain/balance relationship. If these are indeed virtues in our system, then abolition does seem to fall on the outer edge of the spectrum- hence why I refer to it as radical.

    You were right about my statement being tautological. I could have taken more care in phrasing it. Still, I think you know what I was getting at. Again, assuming the balance/bargain paradigm is valid (and I see no evidence put forward by Mike or anyone else that it isn't), there should be laws in place to protect that balance. That entails determining what is within the bounds of the law. What is not within those bounds is illicit and the law should not only say that the behavior is bad, but provide mechanisms and remedies for rights holders to protect themselves and stem the behavior.

    "I don't understand why this is bad. It may be impractical, it may be short sighted, and we may want to prohibit it... but in an ideal world this is certainly what we would want, and even if the ideal is unachievable, we really ought to strive to come as close as we can."

    Again I'm not sure what you mean here. If something is impractical, short sighted, and behavior you admit we want to prohibit, then why isn't it bad exactly? Surely if the word bad is to have any meaning with regards to this debate, then the flagrant disregard for the rights of others which I referred to should qualify as bad.

    Looking forward to your reply.

     

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    James Plotkin (profile), Feb 15th, 2013 @ 11:54pm

    Re: Seriously?

    "[show] me someone that's made a living off copyright and I'm pretty sure it's someone limiting the rights of others to share content."

    Well yes. That's the point. In order for them to make a living off their work, they need to protect their rights to exploit those works. Copyright is an "exclusive right". an exclusive right doesn't mean the affirmative right to do something (although it does entail that right); it mean the right to exclude others form doing something.

    We start from the position that anyone can do anything. Then we temper it by saying that anyone can do anything except those things that are against the law. When we do that, we restrict other people's rights. But this isn't necessarily bad. We have to restrict some rights to ensure others.

    Assassins make their living killing people. I don't see too many people lobbying for the repeal of murder statutes because those laws restrict the rights of contract killers to carry out their trade lawfully. We've determined that a person's right to live trumps a persons right to earn their living killing people. Likewise, we've determined that a creators right of remuneration for their work trumps a persons right to go hog wild and do whatever they want with other people's creations. As I wrote in a reply above, there is a balance to be struck and there's a lot of nuance, but the principle is the same.

    "... I'm not going to wait for a TV broadcast on a specific channel which costs me $50 a month plus $25 for a premiere channel to wait just once a week for a show that most people would like."

    Right. I covered this. The content industry should stop fighting technology and let you watch Game of Thrones whenever and wherever you want. The old broadcast model is not the only way anymore and the content industry is slowly but surely realizing that. Take Netflix's new release House of Cards. In recognition of the fact that their fans often like to watch a whole season of a show in one shot, they released the whole season at once rather than a week at a time.

    The outcome you want to achieve doesn't require the abolition of copyright law; it requires a paradigm shift in business practices. Killing copyright isn't the best way-and certainly not the only way- to achieve that, unless of course you can prove that it is. Again, I haven't seen anyone prove that, only claim it.

     

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    Anonymous Coward, Feb 16th, 2013 @ 12:04am

    Re: Re: Seriously?

    There's a difference between a theoretically revokable change, and an irrevocable one, such as murder. Your use of the second to justify restricting the former is a logical fallacy.

     

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    Anonymous Coward, Feb 16th, 2013 @ 12:15am

    Re: Interesting discussions with my Business Law Prof about these topics

    Pretty much: If the MPAA and RIAA had actually understood basic economic concepts, then we probably wouldn't have the DMCA and Napster and Megaupload would have paid components that allowed you near-unlimited access to music.

    But I'm posting for an alternate universe here, so...

     

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    Devonavar, Feb 16th, 2013 @ 12:18am

    Re: Re: Working for Free

    I haven't seen The Captains, but your description of the Guilded Age sounds accurate. 14 hour days are the norm on large sets; make that 18 for the PAs at the bottom. It's a culture of extreme workoholism and transience. It's incredibly stimulating for short periods of time, but it's not a viable long-term career. Most people burn out by 40, and those that stick around tend to have substance abuse problems (nicotine, alcohol, caffeine, or all three). The surviving members of the film industry tend to work in support services (equipment service and rentals), since that's where the real money and proper hours are.

    The one point of disagreement I have is this: You *can* say no to Hollywood. Sure, there's competition just like any other field, but letting one of the 100 other guys take your spot when you need a break isn't going to end your career. That's just fear talking, and the fear comes from being freelance: You're constantly looking for work, so it feels like you need to say yes to it all when it comes. Learning how to deal with this fear (and how to say no) is fundamentally important to succeeding in this industry.

     

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    Devonavar, Feb 16th, 2013 @ 12:35am

    Re: Re: Seriously?

    "In order for them to make a living off their work, they need to protect their rights to exploit those works."

    False. They do not need copyright to exploit the works they produce. Abolishing copyright would not remove their right to exploit those works because copyright is not the right to exploit. It is the right to exclude. The right to exploit simply doesn't need protecting, except possibly from first-to-file patent laws.

    I think what you mean is this: "In order for them to make a living off their work, they need to protect their right to exclude others from exploiting those works".

    This is still false. There are plenty of ways to make a living off their work which do not involve excluding others. See also: Fashion, Magic, Comedy, Food, and many other industries that do not offer exclusive sale rights.

     

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    cpt kangarooski, Feb 16th, 2013 @ 12:52am

    Re: Re: Re: Radical Mike

    I'm not sure what you mean when you say "competing alternative laws".

    Alternative bills, really.

    A simple example could be seen for term lengths: Should copyright terms be, say, 10 years, or 20 years from publication? Which one gets us closer to that ideal copyright law which best serves the public interest?

    Of course, copyright is a lot more complex than term length. The scope of protection is important too (Should copyright cover architecture? Derivative works? Contain a first sale exception?), and the requirements for copyrightability (Formalities? If so, which ones, and how do they work precisely?), and so on.

    I suspect that rather than mish-mashing desirable ideas together from different people, that a holistic approach where a single person or small team writes an entire model copyright act would produce a better result. But you'd still want a lot of them to weigh against each other.

    However, there is another way of looking at IP rights as a balance between the private interests of creators and the public interest of society as a whole. ... The private interest of creators is to be able to earn a living off their work so that they don't also have to work a day job.

    And if the money on which they lived rained down from the sky or something, that might be perfectly okay. But that's not what happens. Instead, you're saying that authors have an interest in being able to extract money from the public (who presumably do have to work at day jobs) so that the authors don't have to. The mechanism for this is the ability to exploit a copyright to charge monopolistic prices for what would otherwise be commodity copies.

    It is not substantially different from the old patents in England, where the crown (typically in order to raise money without having to go through Parliament) would sell a monopoly to some courtier on something quite ordinary, like playing cards, or salt. The newly-minted monopolist would then basically have the right to tax everyone else, in order to recoup the expense of getting the patent, and to turn a profit.

    The monopolists certainly had a deep and sincere interest in not having to work at a day job, but that doesn't really console the people called upon to support them. The same is true for authors. The public may be willing to grant authors a copyright if it benefits the public to do so. But there's no reason at all for them to grant such a boon when it does not yield a greater benefit than its cost. It's not charity; copyright as charity fails to explain numerous features of copyright systems.

    Which puts us back into what you call the bargain theory. It's the only explanation that makes sense and is a good idea all around.

    It's the same reason we have laws for other forms of property.

    That's true that the rationale for copyright is the same as for property, but false in that the rationale you're proposing is wrong.

    At the heart of the matter, property is utilitarian too. This wasn't recognized for a long time, as property norms and laws developed organically, but we had figured it out by the time copyright rolled around. Basically, your natural right to property consists of whatever you can personally defend against anyone else. Any rights beyond that come from the willingness of other people to consent to your property claims.

    Why do white people own most of North America? Because the previous inhabitants could not defend it. If I claim to own the Brooklyn Bridge, people laugh at me. If I try to defend what I claim as my property (by, e.g. banning people crossing over it), I am quickly overwhelmed by other people who do not recognize my claim. If I can convince enough people to join me in asserting my rights in the bridge, I can wind up owning it. (See e.g. any number of successful revolutions nationalizing property or engaging in land reforms)

    It's not pretty, but that is what it comes down to.

    Same thing for copyright. Authors can claim to have rights, but really the public decides what rights they deign to give to authors, under what circumstances, etc. And why should they do so unless it is ultimately to the public benefit? Your balance idea just doesn't hold water.

    Again I'm not sure what you mean here. If something is impractical, short sighted, and behavior you admit we want to prohibit, then why isn't it bad exactly? Surely if the word bad is to have any meaning with regards to this debate, then the flagrant disregard for the rights of others which I referred to should qualify as bad.

    It's not bad for each person to want a personal library that consists of literally every work in existence, and it's not bad to want it for free, and it's not bad to want to use it without any restrictions. It may be a bit greedy, but a lust for knowledge and culture is probably okay. I think Confucius said something about treasuring all learning, learning without pause, and teaching without rest being virtuous.

    A policy of having libraries like this may be impractical in the real world, due to the messy concerns that arise when people have to have food to eat, clothes to wear, homes to live in, etc. But it can still be an ideal we treasure without ever being able to attain. We might have to erect barriers to it as a necessary evil, but that doesn't make it a bad thing. It just means we're flawed people, living in an imperfect world.

     

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    Anonymous Coward, Feb 16th, 2013 @ 1:22am

    when someone has chosen to be blind, you will never be able to make them see!

     

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    Josef Anvil (profile), Feb 16th, 2013 @ 2:29am

    Re: OR....

    "If a particular business model can not find a way to be consistent with free and open communication between the citizens of this planet, that business model needs to be abandoned."

    OR just patent that business model as fast as possible and beg the government to provide proper protection. This method pays better.

     

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    Devonavar, Feb 16th, 2013 @ 2:54am

    Re: Re: Re: Radical Mike

    "Again, assuming the balance/bargain paradigm is valid (and I see no evidence put forward by Mike or anyone else that it isn't)"

    Let me see if I can take this on.

    Bargain:

    You've described this as a trade: Monopoly in exchange for growing the public domain.

    This doesn't make sense. Why would we as a society shrink the public domain (without copyright, everything is public domain) in order to grow it? Society doesn't gain anything from this bargain.

    In order for this bargain to work, you need another assumption: The rate of creation will be higher when monopoly rights are granted. This is a very mercantile view that conflicts with modern economics; ordinarily, we assume competition, not monopoly will optimize the rate of creation. But, for the sake of argument, let's grant this assumption and say that monopoly is an effective incentive to create. Now, our bargain looks like this:

    Monopoly in exchange for increased creation.

    We have to ask: Increased creation of what? Art? Why does society want that? Society doesn't benefit merely from the creation of art. Art is amazing and important, and vital to the development of society. But simply creating it isn't enough. Art is of no use to society if it sits in a warehouse an nobody sees it.

    Society gets a raw deal if all it gets is creation, because that's not what society really wants. Creating art doesn't need incentive; it happens all the time. Creation is what human beings *do*. What society really wants is for that art to spread. Strong cultures are built on ideas that are widely spread and accepted, and what society really wants is a strong culture. Now, our bargain looks like this:

    Monopoly in exchange for stronger culture.

    Now, finally, things are starting to make sense. Copyright isn't an incentive to create; creation doesn't need further incentive. What needs incentive is *publishing*: Making art public, and distributing it widely. Strong societies are built on the art that is published, not the art that is locked in vaults.

    In a pre-internet world, this bargain made perfect sense: Publishing was expensive, and it was more profitable to publish (pirate) other people's works than your own because the fixed creation costs could be bourne by someone else (i.e. the creator). This in turn was a disincentive to publishing new works, because publishers could make more profit publishing old works than new ones. Copyright fixed this: It made existing works scarce (and thus more expensive), and thus made new works more profitable than old ones.

    So, really, the bargain that made sense was this:

    Monopoly in exchange for publication.

    Society gets what it wants (widely distributed public art), and creators [ahem] publishers get a profit. But, this bargain no longer makes sense. The internet means publication is no longer expensive. In fact, it's virtually free. And, we've discovered that people will publish widely given the opportunity to do so cheaply. We publish EVERYTHING, just ask Facebook. In fact, copyright is now a *disincentive* to publishing, because monopoly rights create scarcity, which makes publishing (and creation) more expensive.

    So, my evidence against the bargain paradigm is this: Society no longer needs the copyright bargain to get what it needed (publication and distribution of art).


    Balance:

    You described the private interest of creators as being "able to earn a living off their work so that they don't also have to work a day job."

    As far as I can tell, you didn't say what you thought the public interest was, so I'll quote the person you were responding to: "having works in the public domain as fully and rapidly as possible". This is very similar to the public's side of the bargain: the public wants publication and wide distribution.

    The balance paradigm assumes an either/or situation: Either creators earn a living, or the public domain is fully and rapidly filled. It also assumes that, without copyright, things are out of balance. Without copyright, society wins: The public domain is full, and creators don't earn a living. Therefore, copyright is assumed to be sufficient to allow creators to make a living: If you have it, creators will make money. It is also assumed to be necessary: without it, creators will not make money.

    I've responded to the fallacy that copyright enables creators to live off their work in another post, so I apologize if I repeat myself. The usual answer around here is to attack the second point: Copyright is not necessary to earn a living off your work. There are numerous other business models that are as effective or more effective than copyright. The specific examples are numerous, but they usually boil down to advertising, merchandising, performing, or patronage. This site is dedicated to this kind of example, and I'm not going to spend much more time on it unless you challenge me on this point. There are plenty of ways for creators to make money without copyright.

    It turns out, not only is copyright unnecessary to make a living as a creator, it's also insufficient. Nobody is obligated to buy from a creator just because it was created under copyright. They still have to sell their work. And, as we can tell from the fact that 99.5ish% of copyrighted works are out of print, most work under copyright cannot be sold because there is simply no market for it. Clearly, the 0.5% of copyrighted works that *do* sell are selling for reasons other than simply having copyright.

    In fact, what is being sold is not the creation, but the reputation of the creation, or that of the creator. An artist (or a creation) with no reputation can't sell anything without a huge marketing campaign — and a marketing campaign is really just an expensive but quick means of building a reputation. On the other hand, an artist with a strong reputation can literally sell anything (see: urinals disguised as public art in the Met).

    Long story short, copyright is neither necessary nor sufficient for creators to make money. That means that it is irrelevant to balancing the need for creators to make money with the public's need for a strong public domain. The balance paradigm doesn't hold water.

    Postscript:

    So, why *do* we think copyright can help creators make money? The answer is in the way copyright incentivizes publication. In the "bargain" section, I pointed out that, under copyright, new works become cheaper to publish than old works. Historically, this meant publishers had incentive to support the professional creation of new works by exploiting the copyright. However, now that the internet has made self-publication widely possible, the publishers that traditionally offered that money to creators find themselves without a product to sell, and thus without money to offer to creators. So, while copyright was of limited benefit to creators in the past, this is no longer the case.

     

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  30.  
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    Anonymous Coward, Feb 16th, 2013 @ 3:10am

    Re: Interesting discussions with my Business Law Prof about these topics

    The damages is exactly what makes the vigilantes (aka. trolls) such a presense in the DMCA ranks! Without the heavy damages awarded to private users, it would be such a prohibitive cost to sue people that it would have to be the big fat government doing that suing. Just reducing the number of cases by doing that would make it so much easier to find and eliminate the worst abuses, by qualitative analysis of the important cases.

     

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    Richard (profile), Feb 16th, 2013 @ 3:11am

    Re: Radical Mike

    It isn't an either or thing Mike. Innovation and protection of IP rights can be complimentary. I don't think overbearing draconian protections are needed and I would agree if you said that most national IP laws could use an overhaul in light of today's social reality; but there's a difference between copyright and patent reform and (copyright and patent) abolition.


    Unfortunately abolition is the only practical solution.

    Suppose we reform the system to take it back to the orignal 14+14 with only literal copying restricted and no restraints on derivative works or public performances.

    How are you going to stop the history of the last 300 years from repeating itself and taking us back to the present mess?

    Once you have copyright you also have a group of people (publishers) who get free money from it. These people have the incentive, the time and the money to continually lobby for extensions in time and scope.

    It is like a cancer - you have to cut out the whole thing and even the tiniest piece of malignant material left behind can prove fatal.

     

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    Anonymous Coward, Feb 16th, 2013 @ 3:17am

    I'll tell you why! It's so he can stop those damn skateboarding squirrels from terrorizing our Russian softball teams during hockey practice.
    Confused?

    Well at least it makes more sense than Chris Dodd.

     

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    Devonavar, Feb 16th, 2013 @ 3:17am

    CwF+RtB

    Having written a novel in the comment above, I think I can simplify Mike's ubiquitous CwF+RtB formula into plainer English (or at least explain the logic underneath it):

    In my previous comment, I looked at whether copyright was necessary and sufficient for a creator to make money. It's not. But this is what CwF+RtB is about:

    CwF and RtB are both necessary to make a sale, and together they are sufficient to make a sale.

    In other words, Connecting with Fans and having a Reason to Buy are both required to make a sale. And, if you have those two things, there's nothing else you need.

    In English, I translate this as Reputation+Product. An artist trades on his reputation. If he has that, he has the ability to make money from it. But, in order to make money from it, he needs a product to sell. If he has both a reputation and a product, he'll make money; he doesn't need anything else. If he's missing either reputation or a product, he won't make money.

    This is the forumla for selling just about anything. No copyright required...

     

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    Anonymous Coward, Feb 16th, 2013 @ 3:58am

    You would think you'd get something better out of Mike Masnick in 2013.

    Mike-

    You forgot:

    The genie is out of the bottle.

    70+.

    Buggy whips.

     

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    Anonymous Coward, Feb 16th, 2013 @ 4:07am

    Re: Re: Re: Radical Mike

    I'm all for legal action against those who flagrantly flout the property rights of creators.

    ...she said with absolutely nothing to back up such a claim.

     

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    Ophelia Millais (profile), Feb 16th, 2013 @ 4:49am

    The "transcript" is actually just his prepared remarks. After an embarrassing introduction, he takes about a half-hour to read that speech, throwing in some jokes. In the second half of the video, he responds to (not answers) questions relayed from random people who were listening to the event on radio and online (I think?).

    At 47:38 he's asked a very specific question about Hollywood's copyright maximalism:

    "The MPAA has backed extending copyrights for works that were created decades ago [...] What possible public good could come of extending such copyright? Isn't this a huge giveaway to the studios and publishers?"

    Dodd: "Wha-what? Read that again; what is it?"

    Moderator: "[The] question is about extending copyrights for old movies."
    I was excited that someone had actually asked him directly about a specific aspect of copyright, and then I was immediately enraged by how deft a politician he is. He didn't even respond or care about the actual question; he just used it as an opportunity to launch into talking points. He's quite the lawyer, as well, never really ending any sentence, lest he get asked any followup questions.

    He dodged the copyright extension question by saying that such arguments are "unfortunate" because they presume that Hollywood and Silicon Valley are bitter adversaries, and that one side must emerge victorious at the expense of the other. He knocks down this straw man with proclamations of how Hollywood loves and needs technology, and how wonderful it is for everyone (well, just them, really) as they work on manipulating search engine results, seizing pirate sites, and telling pirates that what they're doing is illegal. The implication is that the tech-loving public just needs to chill out a little, be ready to compromise and give ground to the MPAA rather than, say, get all riled up about copyright grabs or the next SOPA or whatever.

     

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    Anonymous Coward, Feb 16th, 2013 @ 5:17am

    One of our studios had Quiznos catered in to their crew today.
    Without us, there wouldn't even BE a Quiznos. Think of all those jobs we created.

    -Hollywood Logic

     

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    anonymouse, Feb 16th, 2013 @ 6:30am

    Re: Radical Mike

    And once again the whole point of the article is ignored by you.
    Hollywood has been forced to innovate, they would tather live in the era where there were only cinemas and that nobody could watch their content at home, they want to destroy the internet as it removes the marketing they control, when they lose the maerketing they lose control over the content , and are stopped in their tracks from charging two three and four times to watch the same content.

    Silicon Valley has not much to do with this, it is the mirriad of programmers out there in the big wild world that have found simple ways to generate income from content that are being hounded by the hollywood cartel.

    There is no radical position here, everyone knows that, the people want a simple easy cheap way to consume their content.Bittorent has answered that by making to super fast to download conetent and super easy to catalogue shows you want to watch at a time of your choosing on any device that is developed.

    If Hollywood , as they have shown, does not want to provide a service that is at least as efficient then they need to leave the arena and allow others to do so.

    It would be simple to create a site with every movie ever created easy to download with pricing that people would be more than willing to pay, the problem as i have said and can be seen easily from the above story by Mike is that Hollywood do not want to make it easy , they want DRM and release windows in different countries and they want to charge as much as they can blocking a huge majority of the world population from being able to use the system. Just look at systems they use now where only America can use them and systems that still rely on the soul destroying DRM.


    Hollywood has been forced to compete and they are being forced to compete more and more every day.

    Eventually they will admit they have been wrong and that what they have done over the years is just not acceptable , but by then it will hopefully be too late and others will have started doing more content creations and content distribution and building a movie/Tv empire of their own, Amazon and Google and a few of the other big players are already starting to produce content.

     

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    Anonymous Coward, Feb 16th, 2013 @ 6:32am

    Re: Re: OR....

    OR just patent that business model as fast as possible and PAY the government to provide proper protection. This method pays better.

    FTFY

     

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    aidian, Feb 16th, 2013 @ 6:35am

    Re: Re: Radical Mike

    cpt kangaroosk:

    I'd suggest the idea that analyzing all copyright and patent law based solely on its impact on the public interest could be problematic inasmuch as it suggests an a priori assumption about where the line on individual rights vs public good should be drawn.

    Personally, as America's last Marxist, I'm probably there with you; however, without putting forward a rational basis for that assumption, it seems a weakness in an otherwise brilliantly crafted framework for analyzing intellectual property law (if only politicians and judges were as intellectually rigorous. Well, one can dream).

     

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    Anonymous Coward, Feb 16th, 2013 @ 6:39am

    Re:

    Clearly you haven't changed much either.

     

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    shane (profile), Feb 16th, 2013 @ 6:49am

    Re: Radical Mike

    This is as extreme a post as I have ever seen Mike make on this topic. He sounds more like me than himself.

    To me, your argument that we need balance for content is correct, but pointed in the wrong direction. We need entertainers, writer, and especially distributors to be dependent on their customers for income. With copyright, they are not. They can make a living perfectly fine without being allowed to threaten legal sanctions if anyone copies their work. I find this especially unjust when applied to protect distributors, but people who want to sing, dance, paint, write, etc for a living need to understand something.

    Most people do these things for FUN.

    After a long day doing something far less entertaining, people sing. They dance. They play games and write stories about the games they play and the things they do. A good number of people write songs and stories of fiction just for fun.

    If you want to PLAY for a LIVING, you'd best be damned good and you'd best be willing to play for a living at LEAST 40 hours a week, week in and week out, just like everyone else does.

    Or else change professions.

    I have never once heard folks who have the view you have present even the faintest reason why it should be otherwise. "But, we won't have any great art!"

    Don't make me force you to watch "The Bachelor".

     

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    Anonymous Coward, Feb 16th, 2013 @ 6:53am

    " ... focus on how those jobs aren't the glamorous ones, but those everyday people (the "little people" if you will)"

    These people don't give a crap about anyone but themselves. You might see their lips a flappin, but very few little people are clappin. I doubt many popcorn farmers even know who this ass is.

    Yeah, they tell stories alright - big tall stories about how important their contribution to society is. Anyone can make a movie, this has been demonstrated many times much to the chagrin of the Dodd types who wish to maintain their death grip upon said industry.

    Dodd needs to put up or shut up.

     

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  44.  
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    shane (profile), Feb 16th, 2013 @ 6:53am

    Re: Re: Radical Mike

    If a creator is doing work without getting paid up front, that's their problem. If a developer builds a house in a bad neighborhood as an "investment", he is guaranteed nothing. He loses money if he spends more building it than he does selling it. That's how art should work too.

    Most artists know well enough that the system in place now is there for the powerful distributors and not for the artists. Those artists who support the current model tend to whine that they won't be able to be superstars and make millions (both untrue and worthy of a "whaa whaa whaa" response even if it is).

    Artists support these fiends in distribution, in other words, because of their own greed.

    I'd like for copyright in particular to just be completely swept away. Welcome back to the world of real work, pretty people.

     

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  45.  
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    Anonymous Coward, Feb 16th, 2013 @ 6:57am

    Re:

    If not for movies, during which the consumption of food may occur, people wouldn't even eat.
    Any talk about people not needing movies, and by extension, copyright to eat is bullshit. True story.

     

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  46.  
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    Anonymous Coward, Feb 16th, 2013 @ 7:06am

    "offering the easiest, fastest, safest, highest quality product and viewing experience possible"

    http://i.imgur.com/lrGaKsS.jpg

    http://i.imgur.com/LwzqUHZ.gif

    LMAO

     

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  47.  
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    shane (profile), Feb 16th, 2013 @ 7:15am

    Re: Re: Re: Radical Mike

    Violation of copyright is not theft. Copyright is not a property right, legally or morally.

    The more people like you say things like "property rights" concerning IP, the more convinced I am that you are evil.

    Do you honestly expect me to believe that you do not know the diference between taking something from someone and making something yourself that looks just like it? The later is violation of IP. THe former is theft. The latter is prevented ostensibly to encourage innovation. The former is prevented because one person gets something without working for it, and the other person loses something they had use of before.

    When someone copies, the original is always left in place.

    Talking theft and property rights when they are not applicable is outright lying, and people such as yourself who continue to do so should be shamed and held accountable for your obvious lack of concern with truth in this important topic.

    There are always Uncle Tom's willing to jump on the side of oppression just to get a seat in the house, no matter how disrespected they may still be once inside.

     

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    James Plotkin (profile), Feb 16th, 2013 @ 7:25am

    Re: Re: Re: Seriously?

    I respectfully disagree. For the purpose of my analogy, the revokability of the act isn't important. It's a very simple point I'm trying to make here.

    In my opinion, dwelling on the differences is a red herring.

     

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  49.  
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    shane (profile), Feb 16th, 2013 @ 7:30am

    Re: Re: Re: Radical Mike

    It is absolutely 100% dishonest to conflate copyright in any way shape or form with property law. Period.

    The reason it is hard to get paid for SOME art is that much of it today is performance art, which leaves no actual commodity to be sold. Perfomance art is captured by technological processes that have absolutely nothing to do with the work the artist is doing.

    Performance art is cheap now because we no longer have to be where the artist is to consume it. That means performers need to change, not the whole rest of the planet.

    Once upon a time, artists of moderate skill and talent made a living making copies. Now that "skill" is of little benefit. La tee daa.

    I am tired of the pretense that people willing to sell their souls to the media tyrants are in desperate need of handouts or else they won't be able to work without a side job (translation - REAL job).

    If your ability to communicate and perform is good enough, people WILL pay you. If not, you need to have a side job.

     

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  50.  
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    Anonymous Coward, Feb 16th, 2013 @ 7:31am

    "we can and must have protection for the creative industry’s genius that intellectual property represents"

    Genius remakes.

     

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  51.  
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    shane (profile), Feb 16th, 2013 @ 7:35am

    Re: Re: Seriously?

    Everyone already has the "right" (ability) to ATTEMPT to "exploit" their own work, of whatever nature that work might be. The problem with much creative work is that it is not work. It is sitting around thinking.

    If you demonstrate that your sitting around thinking is a good thing, people will pay you for it. If not, they won't. Passing laws so that jack booted thugs can break into my house, seize me and my actual, real property, and put me in jail or fine me so that you can "exploit" "your" work is ludicrous.

    If you don't want your "work" to proliferate publicly, perform in private and only for people who are willing to sign a contract stating they will not share it.

    See how far you get....

    This stuff is SO LUDICROUS. Where do you people get this stuff?

    The reason it is hard to make money acting, singing, dancing, playing pop music, etc, is that these are things many, many thousands, hundreds of thousands, of people are able and willing to do for free. They are FUN. They are leisure time activities. You don't have a RIGHT to have the government force people to pay you for them.

    "Then do without." I do without. I'm just that kind of person. I not only disagree with copyright, its use makes me furious at the people who use it, so I opt out.

    But I shouldn't have to.

     

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    shane (profile), Feb 16th, 2013 @ 7:58am

    Re: Re: Radical Mike

    I like your thought process, but don't fool yourself into thinking the battle is essentially won. This goes far deeper than just Hollywood. Centralized control over information and media is the stuff of big politics and businesses that have absolutely nothing to do with entertainment. They want to control what you see to help moderate how quickly you put two and two together in the larger context of human rights, the economy, and everything else important.

    Powerful people have a HUGE stake in keeping information under wraps. Using Hollywood to kill technology that tends to undermine secrecy is just one small part of a much larger set of policies.

    They will keep trying. They will not be admitting they are wrong...

     

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    Anonymous Coward, Feb 16th, 2013 @ 7:59am

    Re: Re: Re: OR....

    PAY the government to provide proper protection

    Those who pay the government for laws usually only do so if they can get more money than they pay in government subsidies. This is an inefficient means of transferring taxpayers money to politicians, while enriching big corporations.

     

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    Anonymous Coward, Feb 16th, 2013 @ 8:04am

    do you have content you didn't pay for mike? thats called theft to take something you didn't pay, but its just a copy, he can still sell his, yes, but not to you, you stole yours, you didn't pay for it, but you wanted it, keep defending criminals

     

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    shane (profile), Feb 16th, 2013 @ 8:13am

    Re: Re: Re: Re: Seriously?

    Nobody misunderstands your point. The fact that you refuse to acknowledge the distinctions others see as important says everything anyone concerned with truth needs to know about the underpinnings of your argument.

    If the truth is not important to your argument, your arguments is weak.

     

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    Anonymous Coward, Feb 16th, 2013 @ 8:31am

    Re: Re: Re: Re: Radical Mike

    We all know that intellectual property rights are conferred on creators as intensives to create

    If that is the case, why did copyright laws come into existence when mechanical copying became possible?
    The creation and performance of works is far older than copyright.

     

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    Anonymous Coward, Feb 16th, 2013 @ 8:50am

    Well its not like he can argue that the CEO's need more money just because.

     

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    James Plotkin (profile), Feb 16th, 2013 @ 9:00am

    Re: Re: Re: Re: Radical Mike

    Alternative bills:

    Ok. Well then I thing we're speaking the same language, reform. If you say that copyright is broken, I agree. If you say new law is required, I agree. But notice that we're not talking about abolition anymore.

    "Instead, you're saying that authors have an interest in being able to extract money from the public (who presumably do have to work at day jobs) so that the authors don't have to."

    I meant that the art (or science) is their day job. I mean that an artist shouldn't also have to be a waiter or gas pump attendant. Now this is an idealistic view, and even a perfect copyright system wouldn't make it so that every artist who had the notion of becoming one could undoubtedly make enough money to live (or even thrive). But as you said, let's get as close to perfect as possible.

    "It is not substantially different from the old patents in England, where the crown (typically in order to raise money without having to go through Parliament)"

    Similar origins maybe, but different application and different justification. While you're right about the history, I don't see what bearing that has on how patents and copyrights work today. The monopoly right is not absolute. There are doctrines like fair use and de minimis copying that say that not any use of a copyrighted work falls within the exclusivity. Sorry Captain, but I just don't buy this part of your reasoning.

    I agree that copyright isn't charity. Again, in my view (and nothing you're saying seems to run counter to this) reforming the law to recalibrate the balance is what is needed. what about a flat term of 20 or 30 years instead of life plus 50 (or 70 in the US). No special pleading for Mickey Mouse. These are the types of conversation we need to have. Notice the starting point isn't "no copyright whatsoever".

    "Basically, your natural right to property consists of whatever you can personally defend against anyone else."

    No. Not in 2013 anyways, and not in the common law or civil law systems of adjudication. The law is there to help you defend your rights so that you don't have to live your life with a gun in your hand repelling the borders of the family ranch. You're describing a "might makes right" scenario and I'm afraid it's woefully out of touch with how property rights have worked in common law jurisdictions for the past 1000 years. Like I said, I didn't want to get into a discussion about the theory of property. I simply brought up the adverse possession doctrine to illustrate that the law works to balance the public and private interests with real and personal property as well, not just intellectual property.

    "Why do white people own most of North America? Because the previous inhabitants could not defend it."

    Actually, the Europeans- in all their racist elitist splendor- considered this land "terra nulius", or "vacant land". Simply put, because they didn't have the same laws and socioeconomic structure, the Europeans didn't recognize the natives as civilized. Had they respected their own rules about property, things would have gone differently. This is a black eye on the western conception of law as universal. Fortunately, we aren't as overtly racist today as the renaissance Europeans were.

    As for the Brooklyn Bridge I disagree. No matter how many people you can con into thinking it's yours, that doesn't make it so. It's a public resource. Even if you did own it (like the Ambassador bridge connecting Windsor, Ontario and Detroit, Michigan) our laws would still prevent you from determining who can or cannot cross the bridge. We don't take kindly to arbitrary discrimination and if those practices ever arose, you can be sure that people would manifest their malcontent pretty darn quick.

    All this to say that your might makes right theory of property is not an accurate depiction of how property rights actually work.

    "Same thing for copyright. Authors can claim to have rights, but really the public decides what rights they deign to give to authors, under what circumstances, etc. And why should they do so unless it is ultimately to the public benefit? Your balance idea just doesn't hold water."

    It seems that you dehumanize authors here. Let's not forget that authors are people too. They're part of the public and their interest forms part of the public interest. Too often this debate is painted as a struggle between the virtuous public and the evil artists. Come on now...that's not fair. When you say the public decides what rights authors get, and that they only get the ones society feels they deserve, you're kind of failing to consider the artists. You're treating them as a means to placate the public and not an end in themselves. That's just not cool in a society where individual well being is valued.

    "It's not bad for each person to want a personal library that consists of literally every work in existence, and it's not bad to want it for free, and it's not bad to want to use it without any restrictions."

    You're right. It isn't bad to want these things. But that's not what I said. Just because it isn't wrong to want something doesn't mean that actually having it is a good. The consequences of everyone getting everything for free is that the people who make those things don't get any money. Some may create these works anyways, but they'll be doing so to their own financial detriment as the time they spend creating could be spent earning a living. The theory goes that this will reduce the over all amount of art created.

    You dismiss the idea of copyright as charity (as you should), but the abolition model just turns the charity case around. The public becomes the charity case and the artists the benevolent donors...except it's against their own will.

    "messy concerns that arise when people have to have food to eat, clothes to wear, homes to live in, etc. But it can still be an ideal we treasure without ever being able to attain."

    Again, I agree with the last part...we can dream. I can also dream of a world where I'm the richest and most loved person in existence. Eventually, however, I have to come back to reality to slog my way through this world like everyone else. I suppose what I'm saying is that it's ok to dream; but in a forum where people are trying to solve real world problems, fantastical solutions like copyright abolition is not necessarily the best place to start the conversation.

    Again, I've enjoyed this exchange. Thanks for engaging.

     

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    James Plotkin (profile), Feb 16th, 2013 @ 9:03am

    Re: Re: Re: Re: Re: Radical Mike

    Copyright predates mechanical rights. In fact, it was an amendment to the existing copyright law of the US that created mechanical rights as a result of the SCOTUS decision in the "aeolian company case".

    I'm Canadian so our law had taken a slightly different path to where it is today. Still, here too, mechanical rights didn't mark the beginning of copyright protection.

    Check it out! Cheers!

     

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    cpt kangarooski, Feb 16th, 2013 @ 9:07am

    Re: Re: Re: Radical Mike

    I'd suggest the idea that analyzing all copyright and patent law based solely on its impact on the public interest could be problematic inasmuch as it suggests an a priori assumption about where the line on individual rights vs public good should be drawn.

    I'll be damned if I can see how copyright could be salvaged if it had to be individually negotiated with over 300 million people. This might be a good reason to dump it, but my suspicion is that most people are okay with the idea of some sort of copyright, but once they learn about the current law, usually not okay with our current copyright law.

    Personally, I think that copyright should try to respect the limits that our common social norms establish, and that it should further try to respect the fact that most people don't give a damn about it, or even think about it, usually.

    This leads me to an exception that I think ought to be put into a reformed copyright act: that we ought to make non commercial acts by natural persons non actionable for infringement, where we define non commercial narrowly -- no exchange of money, nor of goods or services, nor commercial advertising, nor acceptance of gratuities, not even exchanging one copy or work for another as on a server with an upload/download ratio requirement, not even if it's just to cover expenses.

    Doing this would basically immunize ordinary people from copyright so long as they didn't try to do anything with it in the nature of commercially exploiting works, which we can leave for the copyright holders. It will have a serious effect on the market for most works, but it won't completely destroy it. After all, no one has to buy things legally now, and hardly anyone gets caught or is deterred by harsh enforcement. But people typically still do, because they want to. I don't think too much would change, in the end.

    And while it still means that we're restricting free speech as a blanket thing, the big hole in the blanket has to be worth something.

    Beyond scaling up the NEA and similar programs, I'm not sure how you'd accomplish the public goals of copyright without at all infringing on free speech, though. And I'm a bit dubious as to how well it would work.

    Alternatively, we could just have a negative income tax or some other means of supporting everyone to a reasonable level without expecting anything in return, and then trust those of an artistic bent to take the opportunity to create without regard to compensation or copyright, because they no longer require it.

     

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    Anonymous Coward, Feb 16th, 2013 @ 9:30am

    Re: Re: Re: Radical Mike

    Napster and Grokster are in my opinion examples of persons taking inventors' work products and using them inappropriately to disseminate authors' work products.

     

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    Incasso, Feb 16th, 2013 @ 9:47am

    Re: Re: Re: Radical Mike

    Good point Radical Mike

     

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    cpt kangarooski, Feb 16th, 2013 @ 9:50am

    Re: Re: Re: Re: Re: Re: Radical Mike

    I think the previous poster was saying that copyright as we know it post dates the invention of the printing press.

     

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    James Plotkin (profile), Feb 16th, 2013 @ 9:59am

    Re: Re: Re: Re: Radical Mike

    Thank you for the reply.

    "This doesn't make sense. Why would we as a society shrink the public domain (without copyright, everything is public domain) in order to grow it? Society doesn't gain anything from this bargain."

    Well I think this is a false dilemma. Remember that the public domain grows with the number of works created. This is a simple mathematical fact. Would you agree that incentives by definition encourage people to do or abstain from doing things?

    If this is true, then granting property protection to works of the mind doesn't shrink the public domain, it grows it (just with a time delay of life + 70- which I think you and I both agree is way too long!). Whether the current regime allows for optimal growth is a different question. I would say no. Some might disagree. There's a healthy debate to be had.

    "We have to ask: Increased creation of what? Art? Why does society want that? Society doesn't benefit merely from the creation of art. Art is amazing and important, and vital to the development of society. But simply creating it isn't enough. Art is of no use to society if it sits in a warehouse an nobody sees it."

    Ok. But painting 30 canvases and then warehousing them, never to be seen again isn't profitable. You're strawmaning it a little here. I never claimed that simply creating a piece of artwork is enough that someone should get paid for it.

    We agree that simply creating a work isn't enough to add to culture, but it also isn't enough to get paid. In order to both get paid and add to culture, the work must be disseminated.

    "Now, finally, things are starting to make sense. Copyright isn't an incentive to create; creation doesn't need further incentive. What needs incentive is *publishing*"

    Ok. The way I see it, all you've done is add one link to the chain of reason. if publishing, not creation is the goal of copyright, then copyright incentivises publishing, not creation. I don't necessarily agree with you, but even if you're right, the reasoning for copyright law remains the same, only the terms have changed ("creation" is now "publication").

    As for the internet, I think we agree that it's a huge game changer. You're right in pointing out that publishing costs have gone way down for most things. Where I take issue is what you degrade publishing into.

    In the most general sense, when a person posts their status on Facebook, they are publishing. But we both know that isn't what we mean. I think that blogs and YouTube are the greatest equalizers. Still the difference between a good quality and poor quality YouTube video has nothing to do with the service itself, but the quality of the work uploaded to it.

    I tend to watch very high production value and very low production value videos on YouTube. Sometimes my favorite thing to do is just watch another person talk into a camera about something that interests me. Other times I want to see a thrilling action sequence with cool special effects. The former has a low production/publishing cost; The latter, not so much.

    In my opinion, while most creators don't need copyright at all, some need it a lot. The reason why having it is necessarily better than not having it is because the people who do not wish to enforce their copyright don't have to. Copyright law still requires an affirmative action by a rights holder to enforce the right. For those who aren't interested in enforcing, don't. Furthermore, people can renounce copyright in a work or place the work under a very broad CC license. But what about the minority of creators who still do want to protect their work? Why shouldn't they be allowed to?

    This brings me to one of your other points about how copyright is no longer necessary. You're right that a lot of artists don't directly profit off their copyright. Many still do however (trust me, people I know stillg et the odd royalty check). While most performance artists make more money off performance, I don't see anything wrong with having another revenue stream.

    "The balance paradigm assumes an either/or situation: Either creators earn a living, or the public domain is fully and rapidly filled."

    I'm sorry but I disagree completely. It may be correct to say that under the current regime (which none of us seem to like that much) works aren't flying into the public domain at the rate we would like. What if the copyright term were a flat 10 years. That would mean that everything created before 2003 would be fair game today. That seems like a pretty robust and rich public domain to me.

    I believe the above scenario is a case where the public and private interests aren't locked into a zero sum death match. You're clearly bright and you've clearly thought this through. I would be surprised if you didn't agree here.

    Finally on this point, the fact that copyright is not proving to provide large amounts of revenue to the majority of artists (it still helps a minority of artists quite a bit) today doesn't mean that it never will again. It just doesn't logically follow. We've moved away from a world where a CD or record holds much value for the average person; but what if there is some sort of shift where physical media becomes cool again. I mean, nobody thought the Van Dyke would come back...I see far too many of them for that to be true.

    As for the dying publishing industry, I'm not shedding too many tears. But this too is not an adequate justification for abolishing copyright. The model has switched to self-publishing (or indie publishing model). This doesn't mean that copyright has become useless; it is simply useful to a different person, the author instead of the publisher. Instead of the publisher offering money to the author, the author takes his or her work directly to the public. He then gets money directly from them, cutting out the middle man. It's a different business model but still not one in which copyright protection has become obsolete.

    Again, I buy the Internet paradigm shift idea. Where you and I disagree is on the place of intellectual property rights in this new system. It's a healthy debate and I'm glad to have such a worthy adversary.

    Cheers!

     

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    James Plotkin (profile), Feb 16th, 2013 @ 10:02am

    Re: Re: Re: Re: Re: Re: Re: Radical Mike

    Yes. I see. The argument still doesn't really hold water. Presumably cars existed before the first traffic lights. I fail to see the insight here.

     

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    James Plotkin (profile), Feb 16th, 2013 @ 10:24am

    Re: Re: Re: Re: Radical Mike

    I feel like this particular point is very tired and overused.

    Fine. It's not theft in the same way as stealing a person's car is theft, ok? Let's call it something else - unlawful appropriation of someone else's work.

    Just because IP is intangible doesn't mean it isn't valuable. It also doesn't mean people aren't capable of taking it.

    You're right (and so was Jefferson from whom this argument originated) that lighting your candle by my flame doesn't darken my light. But this is a false analogy. By copying my work you are depreciating its value. Whether or not this is stealing to you is irrelevant. A person is unjustly enriching themselves to someone else's detriment.

    "Talking theft and property rights when they are not applicable is outright lying, and people such as yourself who continue to do so should be shamed and held accountable for your obvious lack of concern with truth in this important topic."

    This is verging on trolling but I'll reply anyways. I don't know what your expertise is in the domain of property law (or intellectual property law). I have experience with both. I've given a lot of thought and devoted a lot of time to these issues. I also have the benefit of a legal education where I focused most of my attention on these matters.

    Perhaps I'm not "lying" and in relaity it's you who has a little bit of trouble with the nuances here. I don't know that I even used the word theft, but if I did, I meant it in a colloquial sense.

    If you don't think IP rights should exist, that's fine. Calling people who disagree with you "evil" even though they posit cogent and respectful arguments isn't terribly productive.

    Finally, you're opening statement is wrong. Copyright is property, legally. I mean, that's just a fact...Is it EXACTLY like real property and personal property? No. It's "intellectual property". It's intangible and it's based on certain legal rationals that are not present in the traditional forms of property. But to say that it isn't property "legally" is a clear demonstration of your lack of understanding of the law...

    As for morality. I'm not someone who believes in objective moral values. But let me put it this way:

    If Bob puts on a concert and records the concert so that he can sell a live CD, but someone else bootlegs the concert without Bob's permission and sells or gives away the concert for free, Bob likely won't make as many sales.

    How does Bob feel? How do those who like Bob and want to see him succeed feel? Is the bootlegger morally wrong? Some may say no, but I would think that most people would say yes as soon as they put themselves in Bob's shoes.

    Anyways, You need to start from the position that IP is property because the law considered it to be even if you don't. Any meaningful conversation on the topic should begin from a point that is rooted in reality. You skip right to the idealism...good luck with that.

    Cheers!

     

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    James Plotkin (profile), Feb 16th, 2013 @ 10:36am

    Re: Re: Re: Re: Re: Seriously?

    You're a very angry man, aren't you?

    I didn't refuse to acknowledge his distinction. In fact I did acknowledge it. I'm not claiming my analogy is absolutely perfect. All I'm saying is that it's sufficient to prove the point I was trying to make: "restricting peoples rights to do whatever they want is not an inherently bad thing".

    You speak very loftily of "truth". In reality, all you do is make claims. Where I and many other people here are respectful to one another, you've essentially called me "evil" and someone who doesn't care about truth...dude, you don't even know me...

    Anyways, I think I'm done with this thread. You're entitled to your opinion and I respect your right to voice it. I would recommend however, that you check your angry rhetoric at the door if you want to take part in a productive conversation. If you don't, have at it Hoss!

     

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    Anonymous Coward, Feb 16th, 2013 @ 10:38am

    It's too bad Mike doesn't join in with substantive discussions like the one going on here.

     

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    nasch (profile), Feb 16th, 2013 @ 10:43am

    Re: Re: Re: Radical Mike

    I'd suggest the idea that analyzing all copyright and patent law based solely on its impact on the public interest could be problematic inasmuch as it suggests an a priori assumption about where the line on individual rights vs public good should be drawn.


    The public interest is supposed to be the entire and sole purpose of copyright, so it's totally appropriate to analyze it in that way.

     

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    Dave Xanatos, Feb 16th, 2013 @ 10:45am

    Re: Re: Re: Re: Re: Radical Mike

    If you say that copyright is broken, I agree. If you say new law is required, I agree. But notice that we're not talking about abolition anymore.

    I don't think your thinking encompasses all possible reforms or all possible laws. Absolution is definitely a possible reform which would require a legislative act to repeal it. New laws might also be to prohibit measures to reduce access to created works; an anti-dmca, as it were.

     

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    Anonymous Coward, Feb 16th, 2013 @ 10:49am

    Re: Re: Re: Re: Re: Re: Radical Mike

    Details of when are not my point, just as copyright started as a means of regulating printing and censorship. What is significant is creators rights only became an issue when it was possible to make mass copies of works. This would indicate that copyright, mechanical rights and performing rights are more to do with protecting the publishers than looking after the creators.

     

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    Anonymous Coward, Feb 16th, 2013 @ 10:53am

    Re:

    He wants an internet, and a world, that only works for him.

     

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  73.  
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    nasch (profile), Feb 16th, 2013 @ 10:53am

    Re: Radical Mike


    You haven't actually made out a case for why no IP rights in any form whatsoever are appropriate.


    He also didn't claim that. What he's saying is basically this:

    1. Trying to stop infringement is impossible; it has never worked*, is not working, and will never work, and it costs time, effort, and money despite being ineffective.
    2. There are strategies that increase revenue and convert pirates to paying customers without worrying about copyright.

    If those propositions are true, then the conclusion is that pursuing copyright infringement is a stupid waste of time and money. One needn't even address the issue of what sort of copyright law best serves the public to see that.

    At the same time, I think reasonable IP protections should be on the books to allow rights holders to prevent illicit or non-legitimate use of their material.

    And how would those laws actually do that?

    By the way I'm generally talking about the vast majority of copyright infringement here, namely personal use. Commercial bootlegging operations are a different ball of wax but I think a very very tiny problem compared to the size of the entertainment industry.

    However, there is another way of looking at IP rights as a balance between the private interests of creators and the public interest of society as a whole. This isn't an alternative way of looking at IP rights; It's perfectly compatible with the bargain mentioned above. The private interest of creators is to be able to earn a living off their work so that they don't also have to work a day job.

    The copyright clause states that the purpose of copyright law is the public interest, not creators' interest. It is inappropriate (and indeed unconstitutional) to improve creators' interests at the expense of the public. If we can improve both at the same time, great, but if not then the Constitution demands that we maximize the public good.

    * where "working" means improving revenue and increasing fan base

     

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    jupiterkansas (profile), Feb 16th, 2013 @ 10:59am

    Re:

    If it's a substantive discussion, why should he?

     

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    Dave Xanatos, Feb 16th, 2013 @ 12:03pm

    Re: Re: Re: Re: Re: Radical Mike

    Remember that the public domain grows with the number of works created. This is a simple mathematical fact.
    The public domain currently does not grow at all, whether there are new works being created.

    Would you agree that incentives by definition encourage people to do or abstain from doing things?
    No, I would not. I would agree that incentives are an attempt to encourage or abstain, but their efficacy is very much a matter of debate. Copyright seems a particularly odd incentive. It appears to encourage some and discourage others. Is it encouraging more than it is discouraging? I don't think so. Right now most creation is in spite of copyright and even more would be created without it.

    In my opinion, while most creators don't need copyright at all, some need it a lot.
    And yet it is granted immediately to all without any regard to need. Furthermore, the fact that some need it a lot isn't itself an indication that we as a society need copyright.

    The reason why having it is necessarily better than not having it is because the people who do not wish to enforce their copyright don't have to.
    And yet they might, at anytime. It is a lot more work to get rid of your copyright than it is to get it in the first place. Just look at what Nina had to go through to try renounce her claim to 'Sita Sings the Blues'. This is an obscenely inefficient system.

    But what about the minority of creators who still do want to protect their work? Why shouldn't they be allowed to?
    Wrong question. The correct question is: Why should we give them that ability. Does granting them the monopoly protections create more public good than the harms it creates?

    While most performance artists make more money off performance, I don't see anything wrong with having another revenue stream.
    I do, when the cost of that revenue stream is a government granted monopoly that is used to extract money from everyone else at higher costs and poorer quality than if there was no monopoly granted.

    What if the copyright term were a flat 10 years. That would mean that everything created before 2003 would be fair game today. That seems like a pretty robust and rich public domain to me.
    That would be light years better than what we have now, but it wouldn't last. Grant *any* monopoly, and it will be extended, and extended again and again. This is not conjecture, it is history. It is our current world. I see no indication that human nature has changed recently in this regard.

    I believe the above scenario is a case where the public and private interests aren't locked into a zero sum death match. You're clearly bright and you've clearly thought this through. I would be surprised if you didn't agree here.
    Now you're either just being condescending or you really haven't thought this through. Your belief decries a lack of knowledge of history and human nature. What are the behaviors of the monopolists? To increase their monopoly. Do they limit themselves to well reasoned arguments and logic? No, they produce the most extreme examples of reason that they are capable of to persuade lawmakers and the public that the only right thing in the world is to maintain and increase their power. They will frame those who oppose the monopolies in the worst light imaginable. They are not afraid of hyperbole, inaccuracies, or outright lies to do so. Just suggest to Chris Dodd that 10 years of copyright should be enough. The more reasoned your arguments are, the more he'd attack you. Not your ideas. You.

    The only way to prevent monopolists' behaviors is by not creating the monopoly in the first place. I'd be surprised if you didn't agree here.

     

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    cpt kangarooski, Feb 16th, 2013 @ 1:08pm

    Re: Re: Re: Re: Re: Radical Mike

    Ok. Well then I thing we're speaking the same language, reform. If you say that copyright is broken, I agree. If you say new law is required, I agree. But notice that we're not talking about abolition anymore.

    I, personally, am not an abolitionist. I support it as an option of last resort, but I'm optimistic enough that I think there is probably at least one better alternative. But I don't have a problem with people who are not so optimistic about it, nor with those who are willing to accept a less than optimal copyright law and just want to cut the Gordian knot. So it's still on the table, and it's still the baseline against which all proposals for copyright must initially be measured.

    what about a flat term of 20 or 30 years instead of life plus 50 (or 70 in the US). No special pleading for Mickey Mouse. These are the types of conversation we need to have. Notice the starting point isn't "no copyright whatsoever".

    The starting point is "no copyright whatsoever," but all you have to do to convince me to support a particular copyright scheme is to show that it would produce at least a slightly better satisfaction of the public interest than that. As I said, it's a baseline for comparison.

    Personally I'd like to see some serious economic studies to determine the best reforms. The only one I've seen to date was Rufus Pollock's (he came up with 15 years as I recall, but didn't look at an entire slate of reforms, just term lengths).

    My gut feeling for reforms would be:
    1) Modest automatic protections for unpublished works, simply to avoid problems with manuscript piracy of works intended for publication. There would need to be some mechanisms imposed to help distinguish such works from the majority of unpublished works, for which copyright is not relevant to begin with. (E.g. Requiring registration and deposit as constructive publication and a prerequisite to filing an action)

    2) Strictly requiring formalities for proper copyrights on published works, including registration, fees, deposit (enhanced to facilitate the use and preservation of works as needed, e.g. disclosing commented source code for software, and waiving trade secrets), and notice. Assignments and exclusive licenses would also require simple filings. Lest you think that this is a great burden, it's not substantially different than how real property is handled, or cars, and the paperwork needn't be complex, nor the fees substantial.

    Part of the purpose of this is to solve the orphan works problem by keeping a registry that is up to date. Copyright holders are encouraged to keep their records up to date lest they inadvertently lose their rights. Another part is to avoid granting copyrights for works that didn't need copyrights as a necessary incentive to be created and published. The small hurdle of a form and a token fee (possibly scalable depending on the applicant, similar to patents) deters mindlessly claiming copyrights on everything, while still making it easy to claim one where desired.

    3) Copyright should only be granted to classes of work which are likely to need it. A classic example of a creative field with no particular need for copyright are architectural works (which didn't get protection in the US until about 20 years ago).

    4) Copyright terms should last for one year. Renewals for an additional year are available, the precise number of which may vary depending on the type of work (a computer program might be eligible for four renewals, i.e. a five-year total, while a movie might be eligible for nineteen renewals, i.e. a twenty-year total). Renewals have to be submitted within 30 days of the end of the current term. Failure to do so causes the work to enter the public domain. This follows from traditional US copyright law, as well as patents and trademarks. It lets us tailor the amount of copyright to the incentivizing effect it produces: if a copyright holder stops caring about keeping the right, whatever incentive it produced must've been enough and no more is needed. Also the yearly form (little more than a blank for the copyright registration number, contact information, and a token fee) keeps the registration database up to date.

    5) Making DRM and copyright mutually exclusive, such that works protected by DRM under the authority of the copyright holder (including via a licensee) immediately lose their copyrights. And funding would be provided to help the public, private industry, and the Library of Congress to break or circumvent DRM systems and share those public domain works with the public.

    6) Some sort of reform of adhesive licensing is needed, but this is more a matter for a federal reform to the UCC and contract law. It's not just a copyright problem but lack of reform will cause copyright problems, so I mention it here.

    7) Improved exceptions to copyright including a general exception for natural persons engaging in noncommercial activity which would otherwise be infringing; improved exceptions for computers (which necessarily copy everything they touch); and better safe harbors for ISPs of all sorts.

    But it's all on the table, and as I said, I'd like to have serious economic research done, rather than having to rely on my gut instinct.

    The law is there to help you defend your rights so that you don't have to live your life with a gun in your hand repelling the borders of the family ranch. You're describing a "might makes right" scenario and I'm afraid it's woefully out of touch with how property rights have worked in common law jurisdictions for the past 1000 years.

    And who enforces the law? If everyone is in agreement, no one needs to, particularly. But when a dispute arises, it ultimately boils down to force or the threat of force. A farmer doesn't need a gun to defend the ranch if he can call on the sheriff and his deputies to do it for him. And if they're outnumbered they'll keep calling for reinforcements until we eventually wind up with the army protecting the ranch from some ridiculously powerful trespasser. As I said, ugly, but true.

    Actually, the Europeans- in all their racist elitist splendor- considered this land "terra nulius", or "vacant land".

    The massive waves of European-introduced disease helped a lot.

    As for the Brooklyn Bridge I disagree. No matter how many people you can con into thinking it's yours, that doesn't make it so. It's a public resource.

    Weren't you mentioning adverse possession not long ago? Part of adverse possession's rationale is that it settles disputes over ownership and operates as part of the statute of limitations. Depending on the laws in a particular jurisdiction, adverse possession may very well require one to falsely claim to own land, to openly use it, to bar others from using it as the owner would, to pay taxes on it, and to not get caught by the proper owner until the title passes. It's not too dissimilar from what I was suggesting. Except the even quicker (if way more improbable) route is to convince enough people. If I could successfully convince the New York City government that I owned the bridge, so much so that they respected my claim, how would this differ from "legitimately" owning it in any material way? It reminds me of the Turing test: there's nothing that can be used to distinguish the one sort of ownership from the other. Because ownership and property are based on common agreement (and the aforementioned defense) rather than some objective quality of ownership that arises from who knows where.

    It seems that you dehumanize authors here. Let's not forget that authors are people too. They're part of the public and their interest forms part of the public interest.

    Indeed. And do authors not benefit from getting to copy the works of others, getting to perform it, getting to make derivative works based upon it, etc.? As members of be public, authors are no different from anyone else.

    But if you're going to grant them special privileges, then when we consider whether it is wise to do so, for that purpose, they're a special interest group.

    The consequences of everyone getting everything for free is that the people who make those things don't get any money.

    Utopia doesn't care about money; they don't suffer from the poverty that makes money necessary. Money, and the need to use money, is one of those practical problems I mentioned as a reason why we can't have nice things.

    You dismiss the idea of copyright as charity (as you should), but the abolition model just turns the charity case around. The public becomes the charity case and the artists the benevolent donors...except it's against their own will.

    No. Emphatically no. No one is obligated to create art. If abolishing copyright (or reducing it as a reform) causes less art to be created and published, then that's part of the equation. And it may very well be perfectly acceptable. Just as the utopian world had no restrictions, it also had as much art being created and published as possible, if you'll recall.

    If a massive reduction in copyright restrictions causes only a minor reduction in artistic output, then while I do mourn the art that could have been but now isn't going to be created and published, we're nevertheless better off without it. The essential trade off is quantity v. freedom and the hope is that a little temporary loss of freedom produces a commensurately larger gain in output (the product of which lasts longer than the temporary restriction that helped give rise to it), producing a net benefit. It's not a zero sum game. But there is a point of diminishing returns and a point beyond that of negative returns. Some art just comes at too high a price. I can break out my moon example if you like.

    Good reforms may well result in fewer movies, fewer games, fewer tv shows, fewer books. But since quantity alone isn't how we measure the success of copyright policy, that can be acceptable.

    I suppose what I'm saying is that it's ok to dream; but in a forum where people are trying to solve real world problems, fantastical solutions like copyright abolition is not necessarily the best place to start the conversation.

    I disagree. It is precisely where to start because it gives us our baseline. No copyright law worth considering can be worse than no law at all. And civilization did okay with no copyright for millennia, so we know it is a viable alternative. It shouldn't be hard to come up with something better, and it shouldn't be hard to come up with something better than that, and so on until we find the best thing we're able to come up with. If you think you can't propose a copyright system better than abolition, only then does abolition become attractive. I think that some sort of reformed law is possible and would be a better option. What makes you afraid of it?

     

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  77.  
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    Anonymous Coward, Feb 16th, 2013 @ 1:14pm

    I fear the content industry will be left behind if they insist in not going forward.

     

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  78.  
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    Jay (profile), Feb 16th, 2013 @ 1:15pm

    Re: Re: Seriously?

    In order for them to make a living off their work, they need to protect their rights to exploit those works.

    This does not make logical sense... In every way that you can think of, no one is exploiting a work but creating new markets for a work to flourish.

    If I make a video tape to share to a friend, I've expanded the market.

    If I tell someone about a video that they may like, there is a possibility to buy.

    In the art of remixing, I'm using copies of words or video to create a new story with the music or video as reference material.

    That's all copyright infringement or sharing.

    You aren't making sense in explaining that logical fallacy that your entire discussion works on

    Copyright is an "exclusive right". an exclusive right doesn't mean the affirmative right to do something (although it does entail that right); it mean the right to exclude others form doing something.

    And it's not a "right" that comes natural to man. It's a government granted monopoly that does nothing more than destroys free markets as Derek Khanna (correctly) points out. From a social equality standpoint, it puts more resources to those with the ability to afford the protections of copyright such as Hollywood over the lowly actor that they screw over. Were it not for copyright laws being a massive pain for everyone, I'm sure that artists could find new studios to work with instead of having their cafe shops, their record labels and their respective businesses shut down as a form of mercantilism to protect the very rich and affluent who rely on sharing videos to make money.

    We start from the position that anyone can do anything. Then we temper it by saying that anyone can do anything except those things that are against the law. When we do that, we restrict other people's rights. But this isn't necessarily bad. We have to restrict some rights to ensure others.

    What the hell are you going on about? How about we use the First Amendment as a basis, then modify copyright law so that it doesn't interfere with the free speech of those affected by arbitrary laws?

    As I wrote in a reply above, there is a balance to be struck and there's a lot of nuance, but the principle is the same.

    An extreme example of assassination and copyright is NOT a balance filled with nuance. We've had 30 years of copyright law becoming more and more intrusive on people's lives. How about if we're going to start from scratch, we start from pre-1976 with less statutory laws, less punishments, and more innovation in radio, technology, and less patents and copyrights?

    The outcome you want to achieve doesn't require the abolition of copyright law; it requires a paradigm shift in business practices. Killing copyright isn't the best way-and certainly not the only way- to achieve that, unless of course you can prove that it is. Again, I haven't seen anyone prove that, only claim it.

    For me, it most certainly does. The first victims of copyright law are usually students and the academia class. Copyright has become an end-all-be-all for inflicting class warfare on the haves and have nots. In terms of research against it...

    Media Piracy

    The Sky is rising

    Copyright Subsidies suck

    There's plenty more. But to sit down to say copyright works without any type of evidence strikes me as the same flaw that Mike discusses countless times on this site

     

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    Rikuo (profile), Feb 16th, 2013 @ 1:55pm

    "Remember that the public domain grows with the number of works created. This is a simple mathematical fact."
    "The public domain currently does not grow at all, whether there are new works being created."

    I would also like to point out that the bargain for which we've given copyright - the public domain - is now pointless. If someone who's 20 years old today creates a work and then dies at age 80, his work wouldn't hit public domain until 130 years from now. There is no point in saying that "oh eventually it'll hit public domain" if there is NO WAY for me to enjoy the fruits of that bargain. I wouldn't be so anti-copyright if the term lengths were far shorter. Essentially, the copyright holder gets everything and I, we, the public, get nothing.

     

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  80.  
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    Anonymous Coward, Feb 16th, 2013 @ 3:32pm

    Re:

    That's pretty funny ... oh, wait - you're serious?

     

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  81.  
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    Anonymous Coward, Feb 16th, 2013 @ 4:08pm

    Re:

    Keep licking Lowery's shoes, hurricane head up your ass.

     

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  82.  
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    Anonymous Coward, Feb 16th, 2013 @ 4:11pm

    Re:

    But they're not. Under current US law (despite what the MPAA and RIAA want you to believe) there aren't actually that many cases of criminal copyright infringement that make it to trial.

     

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  83.  
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    Atkray (profile), Feb 16th, 2013 @ 9:08pm

    Re: Copyright abolishment.

    While most people don't want to necessarily abolish copyright, copyright maximalists are bringing it upon themselves.

    Let me explain.

    When your dog parks all night and keeps me up, as a good neighbor I assume you also were up all night and are proactively training the dog to correct this behavior. After a couple nights of this I grow tired and decide to ask you about it. We have a nice conversation during which you assure me that the dog will soon stop barking. Another sleepless night due to the continued barking of the dog and I am no longer feeling charitable. At this point I would call the local law enforcement agency, but some people may be ready to simply kill the animal.

    Copyright maximalists have pushed the general public to this point.

     

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  84.  
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    Anonymous Coward, Feb 17th, 2013 @ 2:05am

    Re: Re: Re: Re: Re: Radical Mike

    Quote:
    Whether or not this is stealing to you is irrelevant. A person is unjustly enriching themselves to someone else's detriment.


    How exactly copying something harms another person?
    If copying was always detrimental there would not be fashion, which is people trying to emulate a certain style of clothing, there also should not be heroes which are created mostly so people can emulate them, there would also not be famous artists which people try to emulate(copy).

    Those copying acts are not detrimental they actually open doors, those are the things that help to make a speaker be wanted in venues, it creates the market, without it there would be no market, so how it is detrimental to another person? how it devaluates exactly something?

    Quote:

    If Bob puts on a concert and records the concert so that he can sell a live CD, but someone else bootlegs the concert without Bob's permission and sells or gives away the concert for free, Bob likely won't make as many sales.


    Conjecture that is all that is, Bob could also make a killing, like so many others have, word of mouth is a powerful thing. It could also promote Bob and make him desirable to others expanding his market to places where he never thought he could reach. Why you don't think of all the possibilities and explain when and how Bob could get less sales and why should people care, because if Bob produced crap why should he receive any protections on that? why should we all strive to safeguard his interests that damage our own when it is not even good? yes because when it is good money start to flow to Bob by the market invisible hand, is just a miracle isn't it?

    Quote:
    How does Bob feel? How do those who like Bob and want to see him succeed feel? Is the bootlegger morally wrong? Some may say no, but I would think that most people would say yes as soon as they put themselves in Bob's shoes.


    Bob should be wearing the peoples shoes and see what his protections cost others.
    Lets make Bob pay royalties for the manufacturers of his instruments, lets make Bob pay for every piece of cloth he uses to do his work.
    That doesn't seem fair does it?
    But that is exactly what Bob is trying to do, to take money from others even when they paid it already, why should I have to pay Bob if I bought a CD or DVD of his and opened a business with it?
    Why should Bob be protected against natural market forces when even others are not?
    MacDonalds is a multibillion dollar company that have no copyrights and can't defend itself against others copying their Big Mac's now can they?
    Architects have no protections, most other sectors of society have no protections in the form of granted monopolies why Bob is so special?

     

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  85.  
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    Anonymous Coward, Feb 17th, 2013 @ 2:06am

    Re: Re: Re: Re: Re: Radical Mike

    Do lawyers have copyright on their legal arguments?
    Can lawyers sue other lawyers for being copied?

    Why should Bob?

     

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  86.  
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    Anonymous Coward, Feb 17th, 2013 @ 2:11am

    Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    Traffic lights came about because of the need cars created, not the other way around.

    There was no need to create more incentives to art creation, that is why nobody cared about it, Not even when it became easy to copy and distribute those works, with the printing press copyright took hold, only when the need to censor and control came about that copyright was created.

    That is the insight.

     

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  87.  
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    Anonymous Coward, Feb 17th, 2013 @ 2:19am

    Re: Re: Re: Radical Mike

    Quote:
    I'd suggest the idea that analyzing all copyright and patent law based solely on its impact on the public interest could be problematic inasmuch as it suggests an a priori assumption about where the line on individual rights vs public good should be drawn.


    The market invisible hand is the answer, just let the market decide what is or not is acceptable with minimum interference.

    Capitalism works wonders in this instance.

    Take out all the rules and see how the market reacts, of course we learned, that making it all at once could be problematic if it fails so create a copyright-free-zone as a test and see what happens, let market forces draw the lines and legislate around that.

    Of course it will not happen in my lifetime, but one can only hope.

    If it doesn't happen in America surely it will happen elsewhere and those people will rip the rewards of success or failure.

    Bollywood and Nollywood seem to be doing great even though they have laws they have no means of enforcing those laws so in fact there are no laws.

    Anywhere where there are no artificial monopolies things seem to be growing fast.

     

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    Devonavar, Feb 17th, 2013 @ 5:01am

    Re: Re: Re: Re: Re: Radical Mike

    Thanks James, you wrote me a worthy reply, and I will try to respond in kind to the best of my ability at 3AM. I hope you will read this, but if you are done with this thread, I hope others will benefit.

    First, a clarification. I am not an abolitionist. I am a radical reformer, and the copyright I envision doesn't resemble anything suggested so far on this thread. My post was not intended to be a defence of abolition, though I realize that was the topic of your original post. My concern was simply to point out that neither the bargain nor the balance theory are adequate justifications for copyright. I believe such a justification exists. For me, the central concern of copyright is preserving attribution and preventing fraud. Perhaps I will share those ideas at some point, but not tonight.

    To address your specific points.

    "Well I think this is a false dilemma. Remember that the public domain grows with the number of works created. This is a simple mathematical fact. Would you agree that incentives by definition encourage people to do or abstain from doing things?"

    Yes, it is a false dilemma. I posed it because I wanted to reveal the underlying assumption, which I'll simply re-quote: "In order for this bargain to work, you need another assumption: The rate of creation will be higher when monopoly rights are granted."

    The real question here is not whether incentives encourage or discourage action, but whether or not copyright is actually an incentive to create. I granted this for the sake of argument, but I also presented a lengthy argument (which I think you agreed with) that copyright is an incentive to publish, not to create.

    Moving on.

    "You're strawmaning it a little here. I never claimed that simply creating a piece of artwork is enough that someone should get paid for it."

    I have no quarrel here. Yes, I set up a false argument. I didn't mean to imply that you advocated it; I was simply using it to illustrate the point that you eventually agreed with: "In order to both get paid and add to culture, the work must be disseminated." Most people stop at creation and never get to dissemination; my argument is clearer if I explicitly destroy the straw man.

    Still moving on.

    "Ok. The way I see it, all you've done is add one link to the chain of reason. if publishing, not creation is the goal of copyright, then copyright incentivises publishing, not creation. I don't necessarily agree with you, but even if you're right, the reasoning for copyright law remains the same, only the terms have changed ("creation" is now "publication")."

    Ok, here I need to do some work. I neglected to present the crux of my argument in my original post, so here goes...

    Yes, I've changed the terms, and that change is significant. We need to know what is meant by publication. As you said, "Where [you] take issue is what [I] degrade publishing into." Unfortunately, I never understood from your example what I supposedly degraded publishing into, or what you thought it was originally. So, here's what I think:

    Publishing is the act of making something public. It includes dissemination, which is the word you used rather than publishing. I don't know if you thought that distinction was important; for me it is not. Dissemination is part of publishing, and it is particularly important for profit-making, but it is not the part I am most interested in. I am interested in publishing because it transforms art into culture. I am also interested because legally speaking, copyright does not fully recognize this transformation, and that is a problem.

    Let me explain:

    Up to the point of publication, I have no problem applying the concept of ownership to art. I have no problem saying the 30 canvases warehoused by your hypothetical artist belong to that artist. Or, perhaps I should say I have no problem saying he owns the art on those canvases, since the canvases are physical objects, and will have an owner even without the benefit of copyright. But, if he publishes the canvases by making the art public and disseminating copies of it, I do have a problem.

    Publishing is the act of making something public. Or, put another way, publishing is an offering from the artist to the public. There is an implicit transfer of ownership in publication that is not recognized by any law. It is a transfer of the piece of art from the artist to the public. This is what it means for a piece of art to become culture: The art shifts from being individually owned (by the artist) to collectively owned (by society). Which is to say, it is owned by no one.

    This is a necessary part of publication. Culture doesn't exist on an individual level; it is fundamentally a commons. What is culture if it is not shared? You can't have a culture of one. This puts culture directly at odds with the concept of ownership, which is fundamentally the right to exclude. Exclusion and sharing are direct opposites. If something is culture, it can't be individually owned.

    If the purpose of copyright law it to increase the creation of culture (which it does by incentivizing publication), copyright law in incompatible with the concepts of property and ownership. The analogy is inappropriate. This is why I worked so hard to shift terms from creation to publication. A creation (art) can be owned. A publication (culture) cannot.

    This is why the internet transition matters so much. Prior to the internet, culture was shared through the use of physical artifacts: Records, Books, DVDs, etc. Even though the culture on these artifacts did not admit ownership, the items themselves were physical things that could be owned. The internet made it much easier to share culture *without* the corresponding physical artifacts.

    In the pre-internet world, the conflict between culture and ownership was much less relevant. Even though the major creative industries *did* claim ownership of culture through copyright, the practical effect on most people was minimal, because most culture-sharing did not happen in a way that was visible or enforceable by the self-proclaimed owners of culture. The only people who were affected by these false claims were the artists themselves, and the outcomes of these conflicts are well documented here and elsewhere. For the most part, these fights went to the content industries, not least because they could make a credible argument that such "ownership" was beneficial to the artists by offering protection for their work. We know now that such protection did not prevent most artists from losing "ownership" of their works to the major publishers and distributors, but that awareness was not there at the time.

    So, if copyright is about increasing culture, it cannot be about ownership. The concept of "intellectual property" does not make sense when applied to cultural creations. There are ways in which copyright does make sense, but they do not involve the concept of property, and we have to rid ourselves of this misconception, no matter how long it has been with us.


    " The reason why having it is necessarily better than not having it is because the people who do not wish to enforce their copyright don't have to. Copyright law still requires an affirmative action by a rights holder to enforce the right."

    As I said, I'm not an abolitionist. That said, enforcementmay require affirmative action, but copyright is automatic. This is a problem due to the infamous "chilling effects". The real consequence of automatic copyright is an increase in the cost of creation, and a fundamental limitation on speech that involves culture that is "owned". A law that limits how we may discuss our own culture is corrupt, and actively inhibits the growth of culture.

    I'd be much more in favour of a copyright system that truly requires affirmative action. In my mind, this means requiring registration and mandatory labelling with the date of expiry (not the date of publication). Such a system would still allow copyright for those who desire it, but would ensure that it is abundantly clear when infringement is a problem rather than forcing people to guess whether or not they will be sued.

    "I believe the above scenario is a case where the public and private interests aren't locked into a zero sum death match. You're clearly bright and you've clearly thought this through. I would be surprised if you didn't agree here. "

    You're right, I should clarify. "Either/or" was the wrong phrasing, because it's not a binary situation, but it is zero sum. What I mean is this: You're right that there is middle ground between creators earning a living and the public domain being fully and rapidly filled. But, "balance" still implies that an increase in one necessitates a decrease in the other. It still implies compromise.

    The rest of the argument doesn't change; copyright is still intended to be a means of taking away from the public domain to enable creators to make money. And, it is still totally irrelevant to the actual factors that allow creators to make a living.

    "the fact that copyright is not proving to provide large amounts of revenue to the majority of artists (it still helps a minority of artists quite a bit) today doesn't mean that it never will again. It just doesn't logically follow."

    True, but that's a piss poor justification for a law. Just because copyright might once again be effective in the future is no reason to keep it on the books today. If copyright once again becomes useful, put it back on the books. And, even though I didn't provide them, I do think there are valid reasons to think that copyright won't come back. There are better solutions to these problems; let's use them.

    " This doesn't mean that copyright has become useless; it is simply useful to a different person, the author instead of the publisher."

    Here we simply disagree; I don't think copyright was ever of use to authors, and I think it is no longer of any use to publishers. My purpose here has been to illustrate why I think that, but I'm at peace with not having convinced you as long as I've engaged you.

    I don't believe either the bargain or the balance theories provide adequate explanations for how copyright is useful, but if I haven't convinced you of that, it goes without saying we will disagree over who and what copyright is useful for.

    As I said at the very beginning of this post, I believe the purpose of copyright (or something like it) are to preserve attribution and prevent fraud. Both of those are useful to authors and publishers to varying degrees. And copyright *has* addressed both of these in the past, but it also does much more, and much of that "more" is harmful to authors and publishers. A "good" copyright law needs a full redesign.

     

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    Anonymous Coward, Feb 17th, 2013 @ 5:21am

    Re: Re: Re: Re: OR....

    Ok BRIBE is a better word anyway.

     

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    btrussell (profile), Feb 17th, 2013 @ 5:26am

    Re: Re: Re: Re: Re: Radical Mike

    "If Bob puts on a concert and records the concert so that he can sell a live CD, but someone else bootlegs the concert without Bob's permission and sells or gives away the concert for free, Bob likely won't make as many sales."

    You're doing it wrong.

    How about if I build a house, sell you a pic of it and license it to you to build yourself if you desire? I build once, make money forever +.

    If you break a window and want to repair/replace it or want to change a door, you will need to purchase a new/different license in order to do so.

     

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    Anonymous Coward, Feb 17th, 2013 @ 5:50am

    Re: Re: Re: Re: Re: Radical Mike

    The argument that infringement is not theft bears repeating because it is a disingenuous conflation of the two terms where negative qualities of the latter are unfairly attributed to the former that is purposefully made by the IP maximalists to manipulate public view in attempt to further their agenda. When they stop using the term theft for infringement, it will no longer be necessary to call them on their bullshit. Until then, again it needs to be said. Then again if you mean that the conflation between the two terms itself is "tired", then yes I agree whole-heartedly.

    And, the issue isn't innovators vs artists so much as innovators vs exploitive middle-men that steal (and yes this time it is theft because the artists are truly deprived) IP from the artists.

     

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    Karl (profile), Feb 17th, 2013 @ 6:19am

    Re: Re: Re: Radical Mike

    I'm all for legal action against those who flagrantly flout the property rights of creators.

    In general, I think we're on the same page about copyright, as I'm not an abolitionist either.

    But I think it's important to debunk this point. Copyright is not a "property right." It does not exist for the same reasons as property rights (at least in the U.S.). And, under the law, it is fundamentally different from either real property or personal property.

    Personal property rights don't have an expiration date. There are no "fair uses" of others' personal property. Libraries and universities aren't exempt from personal property laws. There are no reversion rights in personal property. You can't be a "beneficial owner" of personal property, post-sale. Copyrights are not considered personal property in divorce cases. And so on.

    Hell, even the method of transferring copyright is nothing like transferring personal property. With copyright, each of the individual rights held by copyright can be transferred separately. That isn't the case with personal property: if you own a piece of property, then you own all the property rights. (A system, incidentally, that copyright followed up until 1976 - there could only be one copyright holder, who was called the "proprietor" of the copyright.) You can't merely hold a "title" to any of the rights; if you don't hold the actual ability to exploit or authorize the right itself, you own nothing. And so on.

    Thinking of copyrights as "property" is not only wrong, it's destructive. As I'm sure you've seen on this site, there are constant wars going on to remove legal rights to use copyrighted works. Not just through term length extensions, but through attacks on fair use, removal of exemptions for libraries and universities, attempts to circumvent reversion rights (that's what the whole "work for hire" debate is about), and much more.

    The one thread underlying all these attacks, is the view of copyrights as personal property, a view held (or at least espoused) most vigorously by copyright holders. To them, these exemptions are not viewed as what they are: conditions placed upon a government-granted monopoly. They are viewed as attacks on their own personal property.

    The belief that copyright is property does not admit any consideration of "balance." It only admits the belief that you own something completely, and others are trying to steal it.

     

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    Anonymous Coward, Feb 17th, 2013 @ 6:36am

    Re: Re: Re: Radical Mike

    It is interesting that you bring up adverse possession. I have raised the issue in the past that (at least with patents) introducing the concept of adverse possession to IP law would be an effective means of dealing with much of the trolling problems we see today by forcing the holder to prove that they were actually using the privilege they were granted to produce something beneficial to the public in order to retain their monopoly and deny someone else from using it.

     

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    Anonymous Coward, Feb 17th, 2013 @ 7:19am

    Re: Re: Re: Re: Re: Re: Seriously?

    I think what he meant, although I agree his tone was unnecessarily abrasive, was that you failed to address the fact that there are many industries including several that were cited where a monopoly privilege does not exist yet the ability of the artist to monetize their work exists and thrives indicating that this privilege is not essential as you have claimed.

     

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    Anonymous Coward, Feb 17th, 2013 @ 7:27am

    Re: Re: Re: Re: Radical Mike

    Sorry, Karl, but as per usual every single thing you're saying is completely wrong. You, as always, are completely and totally fucking clueless.

    "Personal property rights don't have an expiration date."

    Sure they do. Lease an apartment for one year, and after that year is up the property rights expire.

    "There are no "fair uses" of others' personal property."

    Of course they do. Necessity is a defense to a trespassing claim.

    "Libraries and universities aren't exempt from personal property laws."

    All sorts of industries have special exemptions and exceptions.

    "There are no reversion rights in personal property."

    Of course there are. You can sell your house subject to a reversionary right.

    "You can't be a "beneficial owner" of personal property, post-sale."

    Of course you can. The property can form the res of a trust, with the trustee holding legal title and the beneficiary having beneficial ownership.

    "Copyrights are not considered personal property in divorce cases." Of course it is. Copyright forms a part of the owner's estate, and it's heritable, alienable, etc.

    "Hell, even the method of transferring copyright is nothing like transferring personal property. With copyright, each of the individual rights held by copyright can be transferred separately. That isn't the case with personal property: if you own a piece of property, then you own all the property rights."

    Huh? You can grant to another either a divided or an undivided interest in your personal property.

    "You can't merely hold a "title" to any of the rights; if you don't hold the actual ability to exploit or authorize the right itself, you own nothing."

    Nope. Copyright can form the res of a trust, with legal title in one and equitable title in another.

     

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    nasch (profile), Feb 17th, 2013 @ 7:38am

    Re: Re: Re: Re: Re: Radical Mike

    "Personal property rights don't have an expiration date."

    Sure they do. Lease an apartment for one year, and after that year is up the property rights expire.


    IANAL so I won't address your other points, but this is incredibly stupid. Do you know how stupid it is and you're trolling, or do you not know how stupid it is and you're being stupid? Who owns the apartment? The renter? Obviously not, so they have no property right to it. So why did you bring it up as though they do? For that matter, why did you say "property rights expire" when obviously the correct thing to say is "contract expires"? Trolling, or being stupid?

     

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    Anonymous Coward, Feb 17th, 2013 @ 8:02am

    Re: Re: Re: Re: Re: Re: Radical Mike

    Leases create property rights. It's quite simple.

    See, e.g., "All leases, all applications of deceased persons for leases, and all property rights or interests acquired pursuant to such leases, made in conformity with the provisions of this Subpart are heritable and transferable." La. Rev. Stat. Ann. § 56:423(E).

     

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    Jay (profile), Feb 17th, 2013 @ 9:03am

    Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    Books, stories, and bards pre-date copyright laws. Should that mean that the knowledge shouldn't be passed?

     

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    Karl (profile), Feb 17th, 2013 @ 9:55am

    Re: Re: Re: Re: Re: Radical Mike

    Sorry, Karl, but as per usual every single thing you're saying is completely wrong. You, as always, are completely and totally fucking clueless.

    We'll see, and thanks for the insult.

    Sure they do. Lease an apartment for one year, and after that year is up the property rights expire.

    But after that year is up, it's not the case that there are no more property rights in that apartment. Those property rights don't "expire," they revert to the original property owner. And universal expiration is not a condition of those property rights' existence.

    That's not the case when copyrighted works fall into the public domain. At that point, the copyrights themselves completely vanish. And the eventual move to the public domain is a condition of those rights existing in the first place.

    Of course they do. Necessity is a defense to a trespassing claim.

    Not exactly. If you make a private necessity defense, you still have to pay any incurred damages to the property owner. Necessity does not mean that you utterly lose your property rights. That's not true with fair use, which is completely exempt from copyright. If a use is fair, it's not copyright "property" at all. Copyright holders have no rights in fair uses whatsoever.

    All sorts of industries have special exemptions and exceptions.

    These are government regulations of private property (and depending upon what they are, must pass Constitutional muster). The rights of libraries and universities to use copyrighted works, are not uses of private property. The copyright holder never had any "property right" in those uses in the first place.

    Of course there are. You can sell your house subject to a reversionary right.

    Which is done by deed, or contract. It is not a legal requirement for all house sales. Unlike copyright's reversion rights.

    Copyright forms a part of the owner's estate, and it's heritable, alienable, etc.

    It's certainly able to be inherited after the author's death. But it is not really property that can be taken in divorce cases. For example, the spouse will probably not have ownership interest in derivative works created by the author after the divorce. But, this depends upon state laws.

    Huh? You can grant to another either a divided or an undivided interest in your personal property.

    Such a grant would not be considered a total transfer of ownership. It may create some property interests (such as by lease), but it's not a transfer of ownership.

    On the other hand, with copyright, you can assign someone else the exclusive right to distribution, but not to performance - and if you do, then you, yourself, can't distribute or perform the works (nor "sell" those rights to anyone else). And the "owner" of the performance rights would have no interest whatsoever in the distribution rights.

    And, again, this type of copyright "ownership" was expressly prohibited by Federal copyright law prior to 1976 - unlike the personal property rights you mention.

    Copyright can form the res of a trust, with legal title in one and equitable title in another.

    Nope. Silvers v. Sony makes this explicit. Unless the "owner" of the "legal title" has been transferred the exclusive right "to do or to authorize" any of the rights in 17 USC 106, they are not any kind of copyright holder at all. They may represent the copyright holders, but they are not themselves copyright holders.

    This is exactly the sort of thing I'm talking about. Thinking about copyright in terms of "property" is simply a bad fit. Copyright has been given certain property-like attributes by statute, because those attributes are the most effective for creating a marketable right.

    But when talking about things like fair use, reversion rights, term expiration lengths, and so forth, it is terrible. These things are not "regulations of," or "intrusions upon," property rights. They are conditions of granting an exclusive monopoly.

     

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    Anonymous Coward, Feb 17th, 2013 @ 10:03am

    Re: Re: Re: Re: Re: Re: Radical Mike

    Talking to you is hopeless. No matter how wrong you are, you'll dig in an insist that you're right. And then you'll write these incredibly long posts where you get so many different things wrong that it's impossible to ever sort through any of it. Talking to you is as terrible an experience as listening to your music is: http://www.myspace.com/karlheinznoise

    I tell you what. Pick one single point, your best one, the one that you think you've got me beat hands down, and I'll go over that one point with you. What I won't do is spend hours while you go off on many tangents while arguing dozens of different points at once. Pick one, and only one, with no tangents, and then I'll respond on the merits.

     

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    Rikuo (profile), Feb 17th, 2013 @ 10:26am

    Re: Re: Re: Re: Re: Re: Re: Radical Mike

    I actually hope he doesn't. Not when you pulled that piss poor analogy of leasing. I'm leasing at the moment, and at no point am I considered the owner. I have been granted the right to sleep here, to store my property here, but at no point am I considered the owner. If I were the owner, I wouldn't be paying rent now, would I? The moment I stop paying rent, I'm out the door and there is nothing legally I can do about it.

    Copyright distorts traditional property laws until they're barely recognizable. For you to say you have a property right because of copyright is to say you own things that normally you couldn't say you own.
    Let's say you've made a movie. Now, going with your theory, you own it. That movie is stored on film or on digital media. It is inseparable from that, as in, the movie cannot exist without the media.
    Now, let's say I go to the store and buy, a hard drive or a pack of blank DVDs. Now, thanks to your property rights in copyright, they're not my property. If they were my property, I would be able to do whatever I wanted with them. However, you and everyone else have inserted yourselves and claimed ownership, control, over what I have just bought. You say I can't copy your movie file onto them. So does that guy over there with respect to his mp3 tracks. Even though I have paid money and the store says to me "These are now yours", the blank media is never mine. Same goes with my computer. I built it myself, out of parts that I legally purchased myself, yet according to copyright, you have the right to dictate what I can do with it.
    See what's happened? Thanks to copyright, you've now obtained ownership of everything else in the world and have the right to dictate what other people can do with what by rights should be their property.
    MY PROPERTY RIGHTS are eroded completely simply to encourage you to create more movies, which can still happen even without copyright. It's not like you lacked the ability to create and then suddenly, you had the ability, motive and opportunity to once copyright came along.

     

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    Karl (profile), Feb 17th, 2013 @ 10:47am

    Re: Re: Re: Re: Re: Re: Radical Mike

    One quick point, then I've got to go.

    If one cherry-picks statutes from property laws, one can find situations that are something like copyright statutes. But they are not the same as copyright statutes.

    Copyright expiration may be something like the expiration of a lease, but it is not exactly the expiration of a lease. Assignment of copyright may be something like the transfer of a legal title, but it is not exactly the transfer of a legal title. Legal and beneficial ownership of a copyright may be something like the legal and equitable title to personal property, but it is not exactly the legal and equitable title in personal property. Infringement may be something like theft, but it is not exactly theft. And so on.

    This because there is a fundamental difference between the rationales behind copyright and private property rights.

    And not just from a legal perspective, but from an ethical, economic, or practical perspective. The differences between the two are vast, and usually incompatible.

    Confusing the two is a big mistake. Especially if, like James or Chris Dodd or myself, you're not talking solely about current legal statutes, but about what those statutes should be.

     

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    Anonymous Coward, Feb 17th, 2013 @ 11:10am

    Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    I actually hope he doesn't. Not when you pulled that piss poor analogy of leasing. I'm leasing at the moment, and at no point am I considered the owner. I have been granted the right to sleep here, to store my property here, but at no point am I considered the owner. If I were the owner, I wouldn't be paying rent now, would I? The moment I stop paying rent, I'm out the door and there is nothing legally I can do about it.

    Ownership can be thought of as a bundle of sticks where each stick is a right. You have the right to live in your leased apartment. Your lessor does not. Your ownership of that stick prevents your lessor from moving into your apartment and sleeping in your bed.

     

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    Anonymous Coward, Feb 17th, 2013 @ 11:24am

    Re: Re: Re: Re: Re: Re: Re: Radical Mike

    "Copyright expiration may be something like the expiration of a lease, but it is not exactly the expiration of a lease."

    Correct. They are not absolutely the same thing. The point I was responding to was this: "Personal property rights don't have an expiration date." I pointed out that many property rights expire, so your point was incorrect. Of course different expiration dates happen for different reasons. For example, some states don't allow leases on land to be longer than 99 years. And if a lease is written for 120 years, a court would rewrite down to 99. The reasons why there is a 99 year limit are different than for why copyright is limited. But the fact remains that lots of property expires. So, again, your claim that it doesn't was wrong.

    "Assignment of copyright may be something like the transfer of a legal title, but it is not exactly the transfer of a legal title."

    A copyright assignment is a transfer of legal title. It is exactly like a transfer of legal title because it is in fact a transfer of legal title. Again, you're wrong.

    "Legal and beneficial ownership of a copyright may be something like the legal and equitable title to personal property, but it is not exactly the legal and equitable title in personal property."

    Above you claimed: "You can't be a "beneficial owner" of personal property, post-sale." I pointed out that that is completely wrong. You're now trying to make some vague argument how it's not the same as other personal property. How is it not the same as other personal property? You can have legal and beneficial owners of copyright, just like you can have the same as other properties. Different rules may apply since copyright rules come from the Copyright Act and other property rules would not. But the basic concepts of ownership are the same.

    "This because there is a fundamental difference between the rationales behind copyright and private property rights."

    Some parts are different and some are not. So what? Each type of property comes with its own rationales. The rationales for the property rights over land are different than the rationales for property rights over cars.

    "Confusing the two is a big mistake."

    Nobody's denying that there are materials differences between the two. So what? Unless you explain exactly what difference you're referring to and give it specific context, you're just spouting high-level stuff that doesn't say much.

    Regardless, this is all just a bunch of tangents that lead nowhere. Seriously, pick one thing and we'll focus on that if you want. Let's discuss one specific thing on the merits without moving the goalposts around randomly like someone with severe ADHD.

     

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    Rikuo (profile), Feb 17th, 2013 @ 11:56am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    " Your ownership of that stick prevents your lessor from moving into your apartment and sleeping in your bed."

    Well yes, I have bought the right to live in the apartment and to sleep in my bed, and to prevent the landlord from doing the same. It was an agreed upon exchange. I would give her cash and in return, I get a place to live. However, at no point does title of the apartment transfer to me. If that were to happen, the rent would turn into a mortgage and would be even higher. Then, I wouldn't be paying her, I'd be paying back the mortgage to the bank, whom I would have borrowed from.
    Not so with copyright. I buy the pack of DVDs at a store, but don't sign anything limiting what I can do with them. There is no signed contract between me and you, yet because you have created a movie, you somehow have dictatorial powers over what I can do with what I have bought. There is no proper analogy between copyright and leasing. The only two parties are myself and the apartment's owner. No-one else is allowed walk in between us and say, because they built an apartment, that what I or the owner are allowed do is now under their control.

     

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    Anonymous Coward, Feb 17th, 2013 @ 11:58am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    However, at no point does title of the apartment transfer to me.

    Correct. You have a possessory interest, not legal title.

     

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    Rikuo (profile), Feb 17th, 2013 @ 12:08pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    Then why bring it up at all as an analogy for copyright?

    Also, I notice you haven't bothered trying to counter any of my other points.

     

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    Anonymous Coward, Feb 17th, 2013 @ 1:06pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    "Then why bring it up at all as an analogy for copyright?"

    Because it's an ownership interest that expires. Karl argued that copyright is different than other property interests because it expires. I'm pointing out that lots of property interests expires. The details of that expiration come from statutory law, just like the details of the expiration of lots of property interests come from statutory law. But it's unique in that the Constitution mandates that it should expire whereas the expiration of other types of property interests is not mentioned in the Constitution.

    "Also, I notice you haven't bothered trying to counter any of my other points."

    You're arguing that copyright is different from a lease because there's an agreement between the lessee and the lessor whereas there's no agreement between the public and the copyright holder. That's a different issue than the expiration issue. I think there you're comparing the wrong things. The ownership interest that the lessee obtains is good against the world just like the ownership interest the copyright holder has is good against the world. In neither case does the owner of the right negotiate with the world. You're comparing the private negotiation between the lessor and the lessee for a right in a piece of property to the right to that piece of property against the world. That's not the proper analogy.

     

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    Anonymous Coward, Feb 17th, 2013 @ 2:24pm

    Re: Re: Re: Re: Re: Re: Radical Mike

    I believe the purpose of copyright (or something like it) are to preserve attribution and prevent fraud.

    What you are describing is what some European countries call moral rights, which are distinct for any right to copy a work. By and large, the author of a book, or compilation from previous works has been recognised since almost the dawn of writing, along with identification of the original fd a painting. Studio copies are not unknown, but were not signed.
    Ignoring the spin, the history of copyright for books has been as a method of allocating a book to a printer, and so avoiding competition at the level of an individual title. This made sense, as hand setting type, and storing printed pages was an expensive undertaking. Few if any printers could had enough type to set a whole book in type. Once the prints had been taken, the types had to be sorted into its storage slots in the type trays.
    The original justification to gain copyright was as a censorship mechanism, and was held in England by the stationers company. When this was abolished the Stationers component looked round for a means to restore this control, and came up with the idea of an autors copyright, which restored their control of assigning books to printers.
    Mechanical rights and performing rights for music came in at about the same time as recordings became possible, prior to that at best only the sheet music was under any form of copyright.
    Historically copyright had been a means of managing rights to commercial copying, and avoiding competition to produce the same work, and usually dealt with on a per country basis. Authors and performers managed to make a living, if they were good enough for about the first 300 years of printing. Also prior to recording, music and film, musicians and actors could make a living from live performance, if they were good enough.
    As art is always a voluntary purchase, people have paid for what they could afford on a likes basis. This often meant buying after listening, or seeing a work, if it attracted the purchasers interest and desire. Such purchases are not driven by copyright, but rather appreciation of the artist. Self published artists, and those using independent publishers can make monet depending on the quality of their work by various means. However this is usually dependent on the work becoming widely distributed, as without attracting fans, no money comes in. Fans come after they have 'consumed' the work.
    I think copyright has become a danger to society as copying, remixing and making derivative works had become a visible activity due to the Internet. Because of this the publishers are trying hard to gain the means to prevent these activities, and this means monitoring of the Internet and gaining control over user machines.
    Copy right is ones of three excuse being used to establish aan authoritarian monitoring and censoring system, the othet two are terrorism and porn/ protection of children. Unless they adapt, the traditional publishers will have their business fail sooner or latter, as self publishing and independent publishers will take larger shares of the money pie. Unless something is done to eliminate the reason they are seeking new laws they will help to do serious damage to society by helping to drive repressive laws. About the only other way they have a long term future is if they manage to reduce the Internet to a broadcast means from corporations to customers by gaining control over the Internet and personal computers. Apple and Microsoft building walled gardens is a step down the dangerous road.

     

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    Karl (profile), Feb 17th, 2013 @ 3:19pm

    Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    The point I was responding to was this: "Personal property rights don't have an expiration date." I pointed out that many property rights expire, so your point was incorrect.

    Except that the property rights that lessees have don't "expire." They revert to the lessor. This is nothing like works going into the public domain.

    For example, some states don't allow leases on land to be longer than 99 years.

    That would be an intrusion of the government into private property rights. That may be justified - I don't doubt that it is - but again, it's nothing at all like copyright expiration, which is a precondition of the copyright monopoly existing at all.

    A copyright assignment is a transfer of legal title. It is exactly like a transfer of legal title because it is in fact a transfer of legal title.

    You can hold the legal title to a piece of property without having any posessory interests in that property. That's simply not true with copyright. So, no, not exactly the same.

    Above you claimed: "You can't be a "beneficial owner" of personal property, post-sale." I pointed out that that is completely wrong.

    Being a beneficial owner of a copyright is not the same as holding an equitable title in a piece of property.

    You're now trying to make some vague argument how it's not the same as other personal property.

    I'm making the claim that copyright is not personal property. It is treated like personal property in some ways under statute, but it is not personal property in any other way. Thinking of copyright as personal property - "other" personal property or not - is a fundamental mistake.

    Each type of property comes with its own rationales. The rationales for the property rights over land are different than the rationales for property rights over cars.

    Fundamentally, no, they are not. I admit, there are overlapping theories of property, but they apply to both cars and land, and do not apply to copyright. We have personal property because it is rivalrous. By taking it from one person, you prevent that person from using it (the moral argument); personal property is the most efficient way of allocating scarce resources (the economic argument); property arises because every individual has the right to the products of their own labor (the Lockean argument). But whatever the argument, we do not own personal property for the sole purpose of greater public use of that particular piece of property.

    Unless you explain exactly what difference you're referring to and give it specific context, you're just spouting high-level stuff that doesn't say much.

    I thought I made the reason very clear: "The belief that copyright is property does not admit any consideration of 'balance.' It only admits the belief that you own something completely, and others are trying to steal it."

    You see this very explicitly in the Chris Dodd video. You see it all the time when copyright holders call infringement "theft." You see it in arguments for extending copyright to "forever minus a day." Or arguments against libraries loaning digital books. Or appeals to the WTO not to consider exceptions for people who make works available to the blind or disabled. Or in a hundred other places. Including your posts.

    There is exactly one yardstick with which to measure copyright: the degree to which it benefits the general public. Protecting authors' "property rights" does not even enter into the equation. All that is important is whether copyright laws improve the welfare of "the world," as you put it.

    I believe they do (to some degree - not the laws we have now). That's why I'm not an abolitionist. But if it turns out that the world is better served by the abolition of copyright laws, then I accept that they must be abolished. Anything else would be unadulturated greed.

    p.s.:
    Talking to you is as terrible an experience as listening to your music is:

    Darn. I guess I should try harder to make my music unlistenable.

     

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    nasch (profile), Feb 17th, 2013 @ 4:18pm

    Re: Re: Re: Re: Re: Re: Re: Radical Mike

    Pick one, and only one, with no tangents, and then I'll respond on the merits.

    Is this AJ? Because that sounds like something AJ would say.

     

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  112.  
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    Anonymous Coward, Feb 17th, 2013 @ 4:54pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    Pretty much every single point you make is wrong. It's quite remarkable. Since you won't pick one point to discuss discretely, I will.

    You say: "You can hold the legal title to a piece of property without having any posessory interests in that property. That's simply not true with copyright. So, no, not exactly the same."

    Legal title to copyright can be held by one, while equitable title is held by another. This is true both under the 1909 and 1976 Acts.

    See, e.g.,
    Before addressing the elements of an express trust, the Court notes that, contrary to SK&I's position, legal and equitable interest in a copyright may be held separately. As cases pre-dating the 1976 Copyright Act make clear, a copyright may constitute a proper trust res, with the trustee holding legal title to the copyright and the settlor retaining equitable title. The 1976 Copyright Act did not change this, but rather codified the notion that both the equitable, or “beneficial,” owner of a copyright and the legal owner have standing to sue for infringement.
    A. Brod, Inc. v. SK & I Co., L.L.C., 998 F. Supp. 314, 325 (S.D.N.Y. 1998) (internal citations omitted).

     

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  113.  
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    Karl (profile), Feb 17th, 2013 @ 9:39pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    Legal title to copyright can be held by one, while equitable title is held by another.

    I was not referring to the "equitable title" bit (which is a bit misleading, because under Federal copyright law, beneficial owners don't hold the "title" at all; only the legal owners do).

    I said a possessory interest, which is different. To clarify: that "possessory interest" would be the right "to do" any of the acts under 106, and "to authorize" anyone else to do those acts.

    And, as I made clear, you don't hold the title to a copyright unless you have been transferred one or more of those rights. That was the whole point of Silvers. And that is different from other forms of property (like real estate), where you can hold only the legal title, while someone else (e.g. the lessee) holds the possessory interests.

    Also, pay close attention to the case you quoted. Because it had nothing to do with Federal copyright law. It had to do with New York state trust law. It was only applicable because it was one of the areas where Federal copyright law does not trump state law - areas which include "breaches of contract, breaches of trust, invasion of privacy, defamation, and deceptive trade practices such as passing off and false representation."

    It is not preempted by Federal copyright law because it is not an "equivalent" right; and it is not "equivalent" precisely because the state law "changes the nature of the action so that it is qualitatively different from a copyright infringement claim."

    And, speaking of tangents that go nowhere, you've still failed to address my main point:

    The belief that copyright is property does not admit any consideration of "balance." It only admits the belief that you own something completely, and others are trying to steal it. [...]

    [W]hen talking about things like fair use, reversion rights, term expiration lengths, and so forth, [the idea that copyright is "personal property] is terrible. These things are not "regulations of," or "intrusions upon," property rights. They are conditions of granting an exclusive monopoly. [...]

    There is exactly one yardstick with which to measure copyright: the degree to which it benefits the general public. Protecting authors' "property rights" does not even enter into the equation.

     

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  114.  
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    Milton Freewater, Feb 17th, 2013 @ 11:06pm

    Consumers DESERVE to not get what they want?

    "Because consumers deserve to enjoy first-generation versions of their favorite films—not secondhand, pirated films-of-films shot and recorded inside a movie theatre on a mobile phone."

    What strikes me about Dodd's comments here is that he knows full well that every single consumer who chooses to watch a CAM video knows exactly what they are getting. Nobody accidentally watches a cruddy CAM.

    So in effect, he's saying consumers "deserve" to be denied an experience they go out of their way to choose.

    This is on a different plane from inaccurately shortening "like theft in a sense" to "theft." Sure, that's creepy and stupid. But saying consumers DESERVE to be denied a preferred option is ugly. Imagine if a store owner said shoplifters and everybody else deserve to pay full price - the place would be out of business in weeks.

     

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    Ninja (profile), Feb 18th, 2013 @ 3:47am

    Re: Re:

    Rather, why does this moron waste storage space and reading time with comments devoid of substance?

    Because he can't keep up with a substantial discussion. And honestly, the comments in this article are simply awesome, I'm sad I could not be online to participate. Also, as far as I've seen so far Mike and TD staff usually weight in when they can add to the discussion or correct something that is being assumed wrongly. And Tim weights in just for the heck of it =D

    In any case, if he was really interested in a substantial discussion he'd stop with this idiocy, stop throwing in non-points, fallacies and intellectual dishonesty and acknowledge that Mike has addressed him plenty of times while he did not give any proper opposing argumentation. Ever.

    Cheers.

     

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  116.  
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    Tim Griffiths (profile), Feb 18th, 2013 @ 5:34am

    Re: Re: Re: Re: Re: Re: Radical Mike

    First, a clarification. I am not an abolitionist. I am a radical reformer, and the copyright I envision doesn't resemble anything suggested so far on this thread.

    Can I ask what the copyright you envision is? I'm interested because you've made one of the most incredibly clear argument for abolition as a bench mark for reform I've read. As such I'd like to hear some more details of the reforms you'd like to see in answer to the bench mark you've set.

     

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  117.  
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    Anonymous Coward, Feb 18th, 2013 @ 5:47am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    I was not referring to the "equitable title" bit (which is a bit misleading, because under Federal copyright law, beneficial owners don't hold the "title" at all; only the legal owners do).

    Beneficial owners hold equitable title. It literally says that in the passage I quoted. Me: quotes a court explicitly saying that the beneficiary of a trust holds equitable title in a copyright. You: claims without any support whatsoever claims that beneficiaries don't hold equitable title. It's hard to discuss things with you when you just ignore direct evidence that proves you wrong and keep on spouting your unsupported beliefs. The court literally and explicitly says exactly the opposite, and you just ignore it and repeat what you said before. It's amazing that you disregard contrary evidence so flippantly.

    I said a possessory interest, which is different. To clarify: that "possessory interest" would be the right "to do" any of the acts under 106, and "to authorize" anyone else to do those acts.

    I knew what you meant.

    And, as I made clear, you don't hold the title to a copyright unless you have been transferred one or more of those rights. That was the whole point of Silvers. And that is different from other forms of property (like real estate), where you can hold only the legal title, while someone else (e.g. the lessee) holds the possessory interests.

    Again, I quoted a district court saying that legal title can be in one while equitable title is in the other. You're completely ignoring this and just claiming what you hope to be the law without any support at all. The whole point of Silvers was not as you claim (and that's just a tangent). That case says only that the bare assignee of accrued causes of action has no standing. It doesn't say that legal and equitable title can be owned separately.

    Also, pay close attention to the case you quoted. Because it had nothing to do with Federal copyright law. It had to do with New York state trust law. It was only applicable because it was one of the areas where Federal copyright law does not trump state law - areas which include "breaches of contract, breaches of trust, invasion of privacy, defamation, and deceptive trade practices such as passing off and false representation."

    Wrong again. The court there is saying legal title may be held by one while equitable title is held by another. This has nothing to do with preemption (another wrong tangent) except to say that it wasn't preempted. It wasn't lots of things, so that sort of argument doesn't get us far. This has to do with ownership, and federal copyright law permits legal title to be held by one while equitable title is held by another.

    It is not preempted by Federal copyright law because it is not an "equivalent" right; and it is not "equivalent" precisely because the state law "changes the nature of the action so that it is qualitatively different from a copyright infringement claim."

    Preemption has nothing to do with it. Under the 1909 Act as under the 1976 Act, ownership of a copyright can be split such that legal title is in one while equitable title is in another. That's the point I'm making, and nothing you've said, including your unsupported conclusory statements offered with no proof to back them up, disproves that.

    And, speaking of tangents that go nowhere, you've still failed to address my main point:

    When we resolve this single issue, without going off on tangents, I will gladly address whatever else you want. But first, let's be perfectly clear about whether legal and equitable title to a copyright can be held by different parties. Until you either prove your side or admit that my proof is better, I don't see the point in discussing the next point.

     

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  118.  
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    Anonymous Coward, Feb 18th, 2013 @ 6:03am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    I have tons of evidence to back up what I'm claiming. I don't like to give you too much at once, for as you prove over and over, there exist no sentence you can't misread.

    Check out this from the Second Circuit:
    Prior to the adoption of the 1976 Copyright Act, 17 U.S.C. §§ 101, 501(b), the beneficial owner, in order to have standing to sue the infringer, was required to join the owner of the copyright as a defendant, alleging that the latter had refused after demand to sue. See, e.g., Kriger v. MacFadden Publications, Inc., 43 F.Supp. 170 (S.D.N.Y.1941); Schellberg v. Empringham, 36 F.2d 991 (S.D.N.Y.1929). The 1976 Copyright Act merely codified the case law that had developed under the 1909 Act with respect to the beneficial owner's standing to sue. Section 501(b) of the 1976 Act provides that “[t]he legal or beneficial owner of an exclusive right under a copyright” is entitled to sue for infringement. 17 U.S.C. § 501(b). The legislative history accompanying the Act notes: “A ‘beneficial owner’ for this purpose would include, for example, an author who had parted with legal title to the copyright in exchange for percentage royalties based on sales or license fees.” H.R.Rep. No. 1476, 94th Cong., 2d Sess. 159, reprinted in 1976 U.S.Code Cong. & Ad.News 5659, 5775. Nimmer notes that the 1976 codification of the standing of beneficial owners “follows the law established by the courts under the 1909 Act.” 3 Nimmer on Copyright § 12.02. We therefore conclude that appellants have standing to sue for infringement of their beneficial interest in the copyright, regardless whether the case is governed by the 1909 Copyright Act or the 1976 Copyright Act. It thus becomes unnecessary for us to resolve the issue of which Act applies.
    Cortner v. Israel, 732 F.2d 267, 271 (2d Cir. 1984).

    Congress indicated that beneficial owners, i.e., those who had parted with legal title yet kept equitable title, would have standing to sue in their own name without joining the legal titleholder. That, again, shows that legal and equitable title can be held separately. And it also disproves your claim that this is not federal law. It is explicitly federal law.

     

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    Josh in CharlotteNC (profile), Feb 18th, 2013 @ 7:07am

    Re: Re: Re: Re: Radical Mike

    That is an amazingly clear analysis. Bravo. I wish I could express my thoughts that clearly.

     

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    Karl (profile), Feb 18th, 2013 @ 7:51am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    Beneficial owners hold equitable title. It literally says that in the passage I quoted.

    I meant that the judge in the passage you quoted used somewhat misleading language. A beneficial owner does not have an "equitable title." A beneficial owner has assigned "all rights, title, and interest" in a copyright, to someone else, in exchange for some ongoing form of payment (usually royalties). That was the very phrase used in the case you cited. The beneficial owner doesn't own the "title" to anything, having assigned it to the legal owner. In fact, the other cases that were cited don't use the phrase "equitable title" at all.

    See also House Report no. 94–1476, discussing the enactment of the 1976 law: "A 'beneficial owner' for this purpose would include, for example, an author who had parted with legal title to the copyright in exchange for percentage royalties based on sales or license fees."

    Also, most courts don't think of beneficial ownership as a "trust," and the legal owner as a "trustee," because they're really not. (There can be no third-party beneficiaries, for example.) That's why the Brod court had to go to state law.

    It is true that state courts have adopted numerous conventions from other statutes having to do with property law. They've had to "shoehorn" copyright into property statutes, and often use existing property case law as a guide. That's what the judge in Brod did. But even though Congress purposefully designed copyright to have property-like attributes under the statute, it's often an inexact fit. Because copyright is not property, no matter how much the statutes try to make it so.

    You're completely ignoring this and just claiming what you hope to be the law without any support at all.

    Okay:
    Eden apparently believed that a third basis for standing under the Copyright Act existed, namely authorization by the copyright holder of suit by a person other than an exclusive licensee. Clause 9 of the 1975 Eden/Paddington agreement contemplates such an arrangement. We do not believe that the Copyright Act permits holders of rights under copyrights to choose third parties to bring suits on their behalf. While F.R. Civ. P. 17(a) ordinarily permits the real party in interest to ratify a suit brought by another party, the Copyright Law is quite specific in stating that only the "owner of an exclusive right under a copyright" may bring suit.
    - Eden Toys v. Florelee

    Note the distinction between plaintiffs allowed under FRCP 17(a), and copyright law. FRCP 17(a)(1) says:
    (1) An action must be prosecuted in the name of the real party in interest. The following may sue in their own names without joining the person for whose benefit the action is brought:

    (A) an executor;

    (B) an administrator;

    (C) a guardian;

    (D) a bailee;

    (E) a trustee of an express trust;

    (F) a party with whom or in whose name a contract has been made for another's benefit; and

    (G) a party authorized by statute.

    Copyright law, however, totally prohibits lawsuits "in the name of the real party in interest." "The Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf" (ABKCO v. Harrisongs). Unless the people designated in FRCP 17(1)(a) are a real party in interest - that is, either the legal owner (the one who holds the exclusive right) or the beneficial owner (the author who exchanged ongoing royalties for the exclusive right), they may not bring suit. Silvers merely follows this line of reasoning.

    This makes copyright unlike "other" property claimants, like executors, administrators, guardians, bailees, trustees, or contract parties. Clear now?

    When we resolve this single issue, without going off on tangents, I will gladly address whatever else you want.

    Somehow, I doubt that. You'll just quote more cases that shoehorn monopoly rights into existing private property case law, and think you've won.

     

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  121.  
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    Anonymous Coward, Feb 18th, 2013 @ 8:48am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    I meant that the judge in the passage you quoted used somewhat misleading language. A beneficial owner does not have an "equitable title." A beneficial owner has assigned "all rights, title, and interest" in a copyright, to someone else, in exchange for some ongoing form of payment (usually royalties). That was the very phrase used in the case you cited. The beneficial owner doesn't own the "title" to anything, having assigned it to the legal owner. In fact, the other cases that were cited don't use the phrase "equitable title" at all.

    Wrong again. Here's what the court said again:
    a copyright may constitute a proper trust res, with the trustee holding legal title to the copyright and the settlor retaining equitable title. The 1976 Copyright Act did not change this, but rather codified the notion that both the equitable, or “beneficial,” owner of a copyright and the legal owner have standing to sue for infringement.
    The "settlor", i.e., the beneficiary, retains "EQUITABLE TITLE." The court then refers to "the equitable, or 'beneficial,' owner of a copyright." The point you're missing is that a beneficial owner holds equitable title. The court explicitly calls the beneficial owner the equitable owner because they mean the same thing. The other point you're missing is that before the beneficial owner parted with legal title, that owner had BOTH legal and equitable title. Having parted with only legal title, they still hold equitable title and are the beneficial owner. That's exactly what that passage I quoted indicates. There's nothing misleading about it. You just don't understand the concept well.

    You need to understand basic trust law:
    It is true that the legal title of the property is held by the trustee in Pennsylvania. But it is so held for the benefit of the beneficiary of the trust, and such beneficiary has an equitable right, title and interest distinct from its legal ownership.
    Maguire v. Trefry, 253 U.S. 12, 16 (1920). Again, the beneficial owner has equitable title. That's how trust law works.

    See also House Report no. 94–1476, discussing the enactment of the 1976 law: "A 'beneficial owner' for this purpose would include, for example, an author who had parted with legal title to the copyright in exchange for percentage royalties based on sales or license fees."

    Yes. They started with legal and equitable title, then they parted with legal title, leaving them the equitable title. It's simple.

    Also, most courts don't think of beneficial ownership as a "trust," and the legal owner as a "trustee," because they're really not. (There can be no third-party beneficiaries, for example.) That's why the Brod court had to go to state law.

    You say that like you have an idea what you're talking about. I can quote numerous courts who make the analogy to trust law. Here's one example:
    However, the courts recognize that legal title to a copyright may be in one person and equitable title in another. Thus, one may be a ‘proprietor’ of a copyright if he holds legal title, though equitable title may be in another wither expressly or as trustee ex malificio.
    Manning v. Miller Music Corp., 174 F. Supp. 192, 195 (S.D.N.Y. 1959).

    This analogy to trust law is very old and very common. I've seen Supreme Court cases over a century old making the same point.

    It is true that state courts have adopted numerous conventions from other statutes having to do with property law. They've had to "shoehorn" copyright into property statutes, and often use existing property case law as a guide. That's what the judge in Brod did. But even though Congress purposefully designed copyright to have property-like attributes under the statute, it's often an inexact fit. Because copyright is not property, no matter how much the statutes try to make it so.

    I honestly don't understand your point. Copyright has been treated as a type of property for centuries.

    Okay:

    Eden apparently believed that a third basis for standing under the Copyright Act existed, namely authorization by the copyright holder of suit by a person other than an exclusive licensee. Clause 9 of the 1975 Eden/Paddington agreement contemplates such an arrangement. We do not believe that the Copyright Act permits holders of rights under copyrights to choose third parties to bring suits on their behalf. While F.R. Civ. P. 17(a) ordinarily permits the real party in interest to ratify a suit brought by another party, the Copyright Law is quite specific in stating that only the "owner of an exclusive right under a copyright" may bring suit.

    - Eden Toys v. Florelee


    Yes, the footnote from Eden. I know it well and recognize it without looking up the case. Footnote 3, if memory serves. It is true that a copyright owner just can't chose anyone to bring a suit on their behalf. That's a tangential issue, and it doesn't address the point I'm making which is that equitable title can be in one while legal title is in another. This is permitted as a matter of FEDERAL common law, and nothing in the 1976 Act changed that. It's permitted under the 1909 Act and the 1976 Act.

    Copyright law, however, totally prohibits lawsuits "in the name of the real party in interest." "The Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf" (ABKCO v. Harrisongs). Unless the people designated in FRCP 17(1)(a) are a real party in interest - that is, either the legal owner (the one who holds the exclusive right) or the beneficial owner (the author who exchanged ongoing royalties for the exclusive right), they may not bring suit. Silvers merely follows this line of reasoning.

    Wow. This is quite the tangent, and, of course, you're completely and totally wrong. Copyright law, of course, just like with any other lawsuit, requires the real party in interest to bring the suit. But this is a huge tangent, and I don't think we should branch off like this. I'd be happy to explain that to you once we get past this point.

    Let's stay focused. The claim is that under federal copyright law, equitable title can be held by one while legal title is held by another. I've offered several courts saying just that. You've offered nothing to refute it.

     

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    Marcel de Jong (profile), Feb 18th, 2013 @ 8:52am

    Re: Re: Re: Re: Re: Radical Mike

    Theft: You have a sheep, I take your sheep. I have stolen your sheep, for you have no sheep anymore.

    Copyright infringement: You have a sheep, I clone your sheep without your permission. You still have your sheep, but now I too have a similar sheep.

    Sure, the latter may be illegal (depending on where the act happened), but it's not the same as theft.

    Calling it theft is disingenuous at the very least.

     

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    jupiterkansas (profile), Feb 18th, 2013 @ 10:44am

    Re:

    Yes, I sat through that whole speech to hear him answer that one question, and he ignored it. More than that, he didn't even hear or read the question - he just assumed it was about piracy and launched on a string of talking points.

    Thankfully, the massive discussion here makes up for my time wasted. Too bad Dodd and the people he represents will never bother to read or ponder this discussion.

     

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  124.  
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    Anonymous Coward, Feb 18th, 2013 @ 12:23pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    This is how you defeat piracy. This is how you get people to respect copyright. Boring law talk.

    Why didn't anyone think of it sooner?!?

     

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  125.  
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    Anonymous Coward, Feb 18th, 2013 @ 12:30pm

    Re: Re: Re: Re: Re: Re: Radical Mike

    It's "theft" because someone is getting something of value without paying for it while violating the proprietary rights of the victim. Theft has different meanings. Personally, I prefer to call it infringement, but there is a long history of calling it theft as well.

     

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    nasch (profile), Feb 18th, 2013 @ 12:53pm

    Re: Re: Re: Re: Re: Re: Re: Radical Mike

    It's "theft" because someone is getting something of value without paying for it while violating the proprietary rights of the victim.

    It isn't theft because the law against theft doesn't apply to copyright infringement. You cannot be tried for theft when all you've done is copyright infringement.

     

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    btrussell (profile), Feb 18th, 2013 @ 1:47pm

    Re: Re: Re: Re: Re: Re: Re: Radical Mike

    I just copied a CD(Or did I?).

    Who is this victim you speak of?

    Please name the band/performer or label or whoever this supposed victim is. Since there is a victim, you should be able to tell me who it is with out me telling you which CD I ripped.

     

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    Karl (profile), Feb 18th, 2013 @ 3:11pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    Perhaps this is just my ignorance of property law. I am mainly familiar with two cases where the phrase "equitable title" is used: real estate, and trusts. In neither case is the holder of an "equitable title" the equivalent of a beneficial owner.

    In real estate, the "equitable title" is held by someone who is in the process of buying a house, but the deal hasn't gone through yet. They move into the house, holding an equitable title because they have a possessory interest in the house. The legal title is retained by the original owner until the deal is finalized, at which point the new owners have are the sole owners.

    This obviously doesn't apply to most copyright cases. For example, musicians usually sign a "deal memo" specifying that they will sign with a record label - and no other record label - but no rights are transferred. During this period, what sort of "title" to the copyright does the record label have? None whatsoever. They are not a "beneficial owner" of the copyright, and have no standing to sue anyone else for copyright infringement.

    After the deal goes through, the label is the legal owner of the copyright, including all "possessory" interests; that is, the right "to do or authorize" the rights that have been assigned. And even though the band is the beneficial owner, they have no "possessory" interests in the copyright whatsoever, and the legal owners can bring a copyright lawsuit against the band if they attempt to do or authorize any of the 106 rights themselves.

    The other example is a trust. Suppose property owner Mabel wants to give a nest egg to little Billy, so she has Uncle Earl hold her property in a trust until Billy grows up. Mabel would be a settlor; Uncle Earl would be the trustee, who holds the legal title to the property; and little Billy would be a beneficiary, holding the equitable title.

    Such a situation is just not possible with copyright law. Mabel may assign her copyright to Uncle Earl, who would be the legal title owner; but Mabel would still be the beneficial owner. Separately, through some form of contract, she could sign over her royalties to little Billy. But Billy would have absolutely no ownership interest in the copyright itself - indeed, Mabel would have no right to grant any interest to him. He would not be a beneficial owner, would not hold any kind of "equitable title," and could not sue anyone else for copyright infringement. After 35 years, the copyright would revert to Mabel (assuming she's still alive); Mabel can not specify that they "revert" to Billy.

    So, perhaps the courts do use the phrase "equitable title." I'll take your word for it. If so, it is unlike the equitable titles in property law. Because the "ownership" of a copyright is strictly defined by statute - unlike property ownership or contract law - it is much more limited in scope and application.

    Moreover, there's nothing that says Congress must implement copyright as a "property" right. They could choose to implement them as non-property exclusive rights - as they did for 106(a) rights. Or, they could redefine those rights such that the legal title can't be transferred at all, and the only licences that could be granted are non-exclusive licenses. (Something I would be in favor of, personally.) Or any number of other things.

    Nobody's "property rights" would be infringed upon, because it is Congress - and Congress alone - that has the right to determine the scope of those rights. If they decide copyrights aren't "property," then they're not property.

     

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

  129.  
    identicon
    Anonymous Coward, Feb 19th, 2013 @ 5:31am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    Perhaps this is just my ignorance of property law. I am mainly familiar with two cases where the phrase "equitable title" is used: real estate, and trusts. In neither case is the holder of an "equitable title" the equivalent of a beneficial owner.

    It's used in IP frequently. For example, in patent law, an exclusive license which does not amount to an assignment gives the licensee equitable title while the licensor holds legal title:
    It seems clear, then, on principle and authority, that the owner of a patent, who grants to another the exclusive right to make, use, or vend the invention, which does not constitute a statutory assignment, holds the title to the patent in trust for such a licensee, to the extent that he must allow the use of his name as plaintiff in any action brought at the instance of the licensee in law or in equity to obtain damages for the injury to his exclusive right by an infringer, or to enjoin infringement of it.
    Indep. Wireless Tel. Co. v. Radio Corp. of Am., 269 U.S. 459, 469 (1926).

    Also see:
    The proprietary rights granted by any patent are the rights to exclude others from making, using or selling the invention in the United States. A patent license may have the effect between the parties to the license of transferring some of those proprietary rights from the patentee to its licensee. Such license then does more than provide a covenant not to sue, i.e., a “bare” license. In addition, the license makes the licensee a beneficial owner of some identifiable part of the patentee's bundle of rights to exclude others. Thus, a licensee with proprietary rights in the patent is generally called an “exclusive” licensee. But it is the licensee's beneficial ownership of a right to prevent others from making, using or selling the patented technology that provides the foundation for co-plaintiff standing, not simply that the word “exclusive” may or may not appear in the license.
    Ortho Pharm. Corp. v. Genetics Inst., Inc., 52 F.3d 1026, 1031-32 (Fed. Cir. 1995).

     

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  130.  
    identicon
    Anonymous Coward, Feb 19th, 2013 @ 4:30pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    In real estate, the "equitable title" is held by someone who is in the process of buying a house, but the deal hasn't gone through yet. They move into the house, holding an equitable title because they have a possessory interest in the house. The legal title is retained by the original owner until the deal is finalized, at which point the new owners have are the sole owners.

    Right. That's a specific type of equitable interest, but the general notion that there's legal ownership and equitable ownership in a piece of property generally dates back centuries. Back when they were separate, legal interests were enforced in courts of law and equitable interests were enforced in courts of equity. Today, there is no longer a division between law and equity. Federal courts hear both types of cases.

    This obviously doesn't apply to most copyright cases. For example, musicians usually sign a "deal memo" specifying that they will sign with a record label - and no other record label - but no rights are transferred. During this period, what sort of "title" to the copyright does the record label have? None whatsoever. They are not a "beneficial owner" of the copyright, and have no standing to sue anyone else for copyright infringement.

    After the deal goes through, the label is the legal owner of the copyright, including all "possessory" interests; that is, the right "to do or authorize" the rights that have been assigned. And even though the band is the beneficial owner, they have no "possessory" interests in the copyright whatsoever, and the legal owners can bring a copyright lawsuit against the band if they attempt to do or authorize any of the 106 rights themselves.


    Right. The band there started with full legal and equitable ownership. While the contract was executory (that is, there is performance yet to occur before the contract is complete), no ownership changed hands. Once the contract was complete, the band transferred full legal title and partial equitable title to the label. The band transferred equitable ownership of the exclusive rights under 106, so the label can exercise them, and if the band retained the right to royalties, then they have that beneficial interest, i.e., they have part of the equitable title. Equitable ownership can be divided such that the label holds part and the band holds the rest.

    The other example is a trust. Suppose property owner Mabel wants to give a nest egg to little Billy, so she has Uncle Earl hold her property in a trust until Billy grows up. Mabel would be a settlor; Uncle Earl would be the trustee, who holds the legal title to the property; and little Billy would be a beneficiary, holding the equitable title.

    Such a situation is just not possible with copyright law. Mabel may assign her copyright to Uncle Earl, who would be the legal title owner; but Mabel would still be the beneficial owner.


    Why couldn't Mabel assign equitable title to Billy?

    Separately, through some form of contract, she could sign over her royalties to little Billy. But Billy would have absolutely no ownership interest in the copyright itself - indeed, Mabel would have no right to grant any interest to him. He would not be a beneficial owner, would not hold any kind of "equitable title," and could not sue anyone else for copyright infringement. After 35 years, the copyright would revert to Mabel (assuming she's still alive); Mabel can not specify that they "revert" to Billy.

    She can assign the equitable title to Billy from the beginning. The termination rights would definitely be an issue if exercised.

    So, perhaps the courts do use the phrase "equitable title." I'll take your word for it. If so, it is unlike the equitable titles in property law. Because the "ownership" of a copyright is strictly defined by statute - unlike property ownership or contract law - it is much more limited in scope and application.

    Ownership of lots of things is defined by statute, so I don't agree that copyright is much different. Since copyright is incorporeal, the rights have to be defined. But lots of rights are defined, even in corporeal things. Look at the UCC or your state's real estate laws. Much of how it works is defined by statute, just like copyright, and much of how it works is defined by the courts, just like copyright.

    Moreover, there's nothing that says Congress must implement copyright as a "property" right. They could choose to implement them as non-property exclusive rights - as they did for 106(a) rights. Or, they could redefine those rights such that the legal title can't be transferred at all, and the only licences that could be granted are non-exclusive licenses. (Something I would be in favor of, personally.) Or any number of other things.

    It's just a type of property, the rules of which are defined to an extent by statute with the finer details worked out by the courts applying common law principles and such. Congress could define it such that legal title can't be transferred, just like they could for lots of other property interests. The presumption is that title is freely alienable. Congress/legislatures can and do limit the ability to alienate property. Cars and real estate have their own requirements, just like copyright.

    Nobody's "property rights" would be infringed upon, because it is Congress - and Congress alone - that has the right to determine the scope of those rights. If they decide copyrights aren't "property," then they're not property.

    They can define the right however they want within constitutional limits, but it's still property because that's the classification it falls into. Congress can say "treat it differently than we treat this other property," but that doesn't mean that it's not property. It's property because it's a person's rights in a thing. As long as there are these rights, however defined, it's property.

     

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  131.  
    identicon
    Devonavar, Feb 20th, 2013 @ 1:02am

    Re: Re: Re: Re: Re: Re: Re: Radical Mike

    You can ask. And, sometime when I have a few hours to kill, I'll make an attempt at it. But, that's a big topic ... one that is probably more deserving of it's own thread.

     

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

  132.  
    identicon
    Devonavar, Feb 20th, 2013 @ 2:03am

    Re: Re: Re: Re: Re: Re: Re: Radical Mike

    P.S.

    If you *really* want to hear some details about the reforms I'd like to see, I suggest you petition Mike Masnick to guest-feature it as a full article or series of articles. It will take me several hours/days to write it all out in a way that makes sense to ordinary people, because there's a lot of theoretical framework that is needed to make sense of it. Case in point: It took me two LONG posts and >5 hours to fully explain my point about publication being a gift from the artist to society.

    I'm glad you like my ideas, and I'd love my ideas to spread, but the time investment on my part is not insignificant, and it's balanced against a life that is already very busy. A wider audience might flatter me enough to undertake a more serious exploration.

     

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

  133.  
    icon
    btrussell (profile), Feb 20th, 2013 @ 11:22am

    Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    No need for a petition, this is Mikes' house. Just write and submit. It would be helpful, if it is as big as you say it is, to be uploaded somewhere that can be linked to.

     

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

  134.  
    icon
    btrussell (profile), Feb 20th, 2013 @ 11:25am

    Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike

    "A wider audience might flatter me enough to undertake a more serious exploration."

    You'll own the copyright, isn't that enough? :)

     

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

  135.  
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    Marcel de Jong (profile), Feb 22nd, 2013 @ 3:26am

    Re: Re: Re: Re: Re: Re: Re: Radical Mike

    That long history of people calling it theft, has an equally long history of people berating those idiots.
    It's not theft, never has been, never will be.

    Please do call it infringement, as that's much more accurate.

     

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

 

Re: Re: Re: Re: Re: Radical Mike

Remember that the public domain grows with the number of works created. This is a simple mathematical fact.
The public domain currently does not grow at all, whether there are new works being created.

Would you agree that incentives by definition encourage people to do or abstain from doing things?
No, I would not. I would agree that incentives are an attempt to encourage or abstain, but their efficacy is very much a matter of debate. Copyright seems a particularly odd incentive. It appears to encourage some and discourage others. Is it encouraging more than it is discouraging? I don't think so. Right now most creation is in spite of copyright and even more would be created without it.

In my opinion, while most creators don't need copyright at all, some need it a lot.
And yet it is granted immediately to all without any regard to need. Furthermore, the fact that some need it a lot isn't itself an indication that we as a society need copyright.

The reason why having it is necessarily better than not having it is because the people who do not wish to enforce their copyright don't have to.
And yet they might, at anytime. It is a lot more work to get rid of your copyright than it is to get it in the first place. Just look at what Nina had to go through to try renounce her claim to 'Sita Sings the Blues'. This is an obscenely inefficient system.

But what about the minority of creators who still do want to protect their work? Why shouldn't they be allowed to?
Wrong question. The correct question is: Why should we give them that ability. Does granting them the monopoly protections create more public good than the harms it creates?

While most performance artists make more money off performance, I don't see anything wrong with having another revenue stream.
I do, when the cost of that revenue stream is a government granted monopoly that is used to extract money from everyone else at higher costs and poorer quality than if there was no monopoly granted.

What if the copyright term were a flat 10 years. That would mean that everything created before 2003 would be fair game today. That seems like a pretty robust and rich public domain to me.
That would be light years better than what we have now, but it wouldn't last. Grant *any* monopoly, and it will be extended, and extended again and again. This is not conjecture, it is history. It is our current world. I see no indication that human nature has changed recently in this regard.

I believe the above scenario is a case where the public and private interests aren't locked into a zero sum death match. You're clearly bright and you've clearly thought this through. I would be surprised if you didn't agree here.
Now you're either just being condescending or you really haven't thought this through. Your belief decries a lack of knowledge of history and human nature. What are the behaviors of the monopolists? To increase their monopoly. Do they limit themselves to well reasoned arguments and logic? No, they produce the most extreme examples of reason that they are capable of to persuade lawmakers and the public that the only right thing in the world is to maintain and increase their power. They will frame those who oppose the monopolies in the worst light imaginable. They are not afraid of hyperbole, inaccuracies, or outright lies to do so. Just suggest to Chris Dodd that 10 years of copyright should be enough. The more reasoned your arguments are, the more he'd attack you. Not your ideas. You.

The only way to prevent monopolists' behaviors is by not creating the monopoly in the first place. I'd be surprised if you didn't agree here.
—Dave Xanatos

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