Andy Baio On The New Prohibition Created By Copyright

from the chilling-effects dept

Andy Baio has an absolutely fantastic video presentation that he did recently for Creative Mornings/Portland on what he's calling The New Prohibition. It's half an hour long, but absolutely worth watching.
Some of the discussion covers ground that you're probably familiar with -- such as discussing how much culture is really infringing by nature (an awful lot of it). From there, it shifts to Baio's unfortunate experience with Kind of Bloop, a story we covered a couple years ago. If you don't recall, Baio, who is quite knowledgeable about copyright law, produced a chiptunes 8-bit version of Miles Davis' Kind of Blue album, which he called Kind of Bloop. He knew that, for cover songs, he needed to pay compulsories, which he did. He then funded the hiring of artists via Kickstarter (he was Kickstarter's original CTO and helped launch the site). It was one of Kickstarter's first success stories. Baio made no money off of it. He produced the album, hired the musicians, made the CDs, and any leftover money went to the artists as well.

But the photographer who took the photo on the cover of Kind of Blue sent his lawyers after Baio. Even though Baio had had someone create a very carefully done 8-bit version of the Miles Davis photo (i.e., he didn't just apply a Photoshop filter...), and believed strongly that it was fair use (it was transformative, non-commercial, had no negative impact on the market for the original, etc.), the threat of the lawsuit, and the years of fighting the lawsuit, including significant expenses (even with pro bono legal help), made him decide to settle for $32,500 of his own cash to the photographer Jay Maisel (an incredibly successful photographer who literally lives in the largest single family residence in New York City).

We wrote about this at the time, horrified at this kind of result. The one good thing in all of this was that Baio fought for, and won, the right to write a single blog post about the experience -- rather than be silenced via a typical gag order that is all too common in legal disputes like this. The story got widespread attention (and there was significant backlash against Maisel, which Baio, himself, tried to quash).

However, since then, Baio hasn't said much (publicly) about the experience. This video lets him talk a bit about the aftermath -- to explain the true chilling effects of the threat and the eventual settlement. Baio is a creator. It's in his blood. It's what he's always done, but after this he was afraid to create. Being threatened with a lawsuit, even if you believe you're right, is a scary and possibly life-altering moment. Lots of people who have not been in those shoes think it's nothing and that they could handle it. You don't know.

As he notes in the talk, copyright law is probably the most violated law in the US after speeding and jaywalking (and I'm not even sure copyright infringement is really in third place in that list). But getting rung up for one of those gives you a "bad day" situation, not a ruined life. Copyright, on the other hand, can ruin your life. And chill your speech and creativity.

And this is the worst part: so many people, especially kids, are at risk. Baio also famously highlighted the prevalence of the phrase "no copyright intended" on YouTube. Tons of kids uploading videos use clips of music and videos with a phrase like that. Or with statements about fair use. Or with copyright law quotes. All, as he notes, to try to find that magic voodoo that wards off a possible lawsuit. Most of those people aren't being sued.

But they could be.

Baio points out that he used to find all those "no copyright intended" messages humorous. And now, he fears for all of them. Just as copyright trolls have sued hundreds of thousands of people as a part of a business model to shake down people, he notes it is not out of the realm of possibility that others will start copyright trolling on YouTube. In fact, while he doesn't mention it, we've actually seen the beginnings of just that kind of thing.

And, as he notes, this is terrifying. This is the new prohibition. People are creating amazing and wonderful new things, inspired by and building off the works of others -- just as has happened throughout human history. This is how culture works. And rather than celebrate and encourage that... we've made it illegal.

And, not just illegal, but illegal in such a way that you can be threatened with life-destroying financial damages. And it's happening all the time and likely to happen even more.

Baio notes that this requires true reform. Fair use is not enough. Fair use is barely worth anything in this setup, as he himself discovered. Baio argues for making non-commercial use non-infringing, which is a step in the right direction, but still leads to trouble in figuring out what really is commercial or non-commercial on today's internet. Still, the crux of the message is vital for people to understand in learning why our copyright system isn't just broken, but seriously damaging to speech, creativity and culture.

We've seen some copyright system supporters in our comments insist that if we don't like copyright, that's fine, "just don't use it" and leave them to use it how they see fit. And that would be great if copyright law didn't get in the way of what most people feel is a perfectly natural way of expressing themselves. But it does. And it does so in a way that stifles true cultural creativity, the exact opposite of what we should be seeking under the clause in the Constitution that is supposed to "promote the progress." Baio's speech is worth watching, just so people can understand what's at stake here. This isn't about "piracy" or people wanting stuff for free. This is about speech and culture and the ability to stifle it completely and destroy people's lives. These are the reasons why so many of us speak out about the way copyright law is used today.


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    Ninja (profile), Apr 16th, 2013 @ 9:35am

    I think this also highlights a problem with the judicial system. If you don't have the financial muscle to endure the process of defending against some accusation it doesn't matter it it's unfounded. You'll end up ruined.

    There are ways to try to prevent this such as not allowing ideas to be copyrighted (ie: the music itself is not copyrightable only the execution), much shorter copyright terms, well defined exemptions with mandatory updates every few years to accommodate new technologies and behaviors etc.

    All of them go through a broad copyright reform. And all of them will face the financial might of MAFIAA lobbying. Unfortunately.

     

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    John Fenderson (profile), Apr 16th, 2013 @ 10:27am

    Needs to be repeated

    Being threatened with a lawsuit, even if you believe you're right, is a scary and possibly life-altering moment.


    And often, win or lose, a life-ruining moment.

    I am constantly amazed at how many people, particularly lawyers, don't understand the fact that being threatened with a lawsuit is, all by itself, punitive in its effects.

    It's a huge fault with our justice system. When combined with the fact that the winner is almost always the party with the biggest warchest, thus rendering the court system all but useless for ordinary people, we have a justice system that is all but incapable of actually dispensing justice.

    A justice system that cannot dispense justice is a justice system that dispenses injustice.

     

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    Argonel (profile), Apr 16th, 2013 @ 10:39am

    Has anyone bothered to do the calculus to compare how badly your life will be ruined defending against a copyright suit vs defending assault or murder charges for attacking the RIAA/MPAA lawyers? Once it happens a few times the cost to hire a layer to press charges will go up to cover the perceived risk to the lawyer. At that point the business model will be forced to change away from a sue em all model.

     

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    Rikuo (profile), Apr 16th, 2013 @ 10:45am

    Re:

    Well for what it's worth, I remember that Michael Jackson's doctor got less years for, ya know, killing the man, than if he'd pirated his discography.

     

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    out_of_the_blue, Apr 16th, 2013 @ 10:46am

    Mike stop conflating the two things

    Prohibition is no longer a "thing" Mikey boy and since you're such a hairy-chested pirate, you don't know nuthin about...robot...prostitutes...prostate ...thunder pants

    UUh, sorry about that, I just got a vision from Lord Xenu.

     

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    Chosen Reject (profile), Apr 16th, 2013 @ 10:54am

    Copyright law should honestly just be abolished. There is no purpose to it beyond creating a business model, and one that is particularly dangerous to creativity. When I want to express myself, even if it's a simple reply to someone, I do it by using the expressions I have learned from others, whether those others are my parents, siblings, friends, or people in my neighborhood, or movies, tv shows, songs, books, poems, etc. It's all the better when it's a shared experience.

    I could dismiss someone who has clearly lost an argument with a "you lose", or I could do it by showing a video.
    If I own a gym, I could get my customers pumped up by giving my own speech, or I could play a song.

    Any of those options are valid, and ought to be valid choices, but copyright says that you should only be allowed to express yourself in ways that are really old (70 years + life of author), paying for it, or creating a new way of expression. There's a lot of validity to new creation, and that creation will happen, but no one creates new things in a vacuum. We are all products of our culture, our shared experiences, etc. Being allowed to express ourselves using the expressions of those around us is a necessity. It's how we are.

    Copyright goes against all that. At one point I thought it could be reformed. I'm leaning towards that being an impossibility. I'm not sure copyright could ever be squared with how humans express themselves. I welcome anyone to prove me wrong, but the more I think about it, I don't think it's possible. Sure copyright gives us certain business models, but then you'd have to prove that those business models are worth it, and I don't think they are.

     

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    out_of_the_blue, Apr 16th, 2013 @ 11:02am

    As I've said, "transformative" is the key problem:

    "Even though Baio had had someone create a very carefully done 8-bit version of the Miles Davis photo (i.e., he didn't just apply a Photoshop filter...), and believed strongly that it was fair use (it was transformative, non-commercial, had no negative impact on the market for the original, etc.)," -- Yes, I see you try to defend in advance, but it's THE key point why this Baio is in trouble: first copying tunes, then copying the cover. And guess what copyright is? The right to control copies. Therefore, while you can quote or use snippets, you can't reasonably use someone else's work as the central part of yours! I'm not het up about this particular one, but just recognize the principle and you should be okay.



    Now, I'd like to hope that no more fools like Rikuo can't grasp that my valuable screen name is being copied, but I'll again point out that it is.




    Take a loopy tour of Techdirt.com! You always end up same place!
    http://techdirt.com/
    Where the fanboys troll the site with vulgar ad hom, and call anyone disagreeing "trolls"!
    07:01:24[i- 2-6]

     

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    Rikuo (profile), Apr 16th, 2013 @ 11:05am

    Re: As I've said, "transformative" is the key problem:

    ....your screen name is valuable? To who? If you value it, why don't you create an account? Simplest way to protect it, since then anyone isn't logged in on your account but uses the name anyway we can dismiss as not being you.

     

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    Anonymous Coward, Apr 16th, 2013 @ 11:09am

    Re: As I've said, "transformative" is the key problem:

    . . .you can't reasonably use someone else's work as the central part of yours!

    Unless it's a parody or satire on the work you're critiquing for educational purposes. Or, is that illegal too now?

    Can not artists use art to make art? You know, this totally old form of art-making? Or, is that illegal too now?

    If you want to make art, you have to know how the law works, duh. But if you want to make law, you don't have to know shit about how art works.

    Beautiful system, I'm sure it doesn't cause any problems whatsoever. Certainly not enough problems to actually discuss this stuff, am I right?

     

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    Beech, Apr 16th, 2013 @ 11:12am

    Re: As I've said,

    Sure you can! See the case of the guy who did a Buffy/ twilight mashup, and was called out as a prime example of fair use by the library of congress!

     

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    Anonymous Coward, Apr 16th, 2013 @ 11:13am

    it's THE key point why this Baio is in trouble: first copying tunes


    What?!?!? Did you miss the part where Baio paid the original artists, just like the maximalists ask?

    So - he's in trouble because he legally reimbursed the copyright holders and did everything he was legally required to do?

    How dare you imply he's in trouble because he obeyed the law and fairly compensated artists, you slimy, psychopathic fucktard!

     

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    out_of_the_blue, Apr 16th, 2013 @ 11:14am

    Re: As I've said, "transformative" is the key problem:

    If by "valuable", you mean generic and self-serving than yes, it is being copied.

     

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    Rikuo (profile), Apr 16th, 2013 @ 11:23am

    Re:

    I feel for Baio. Like I explained, numerous times in the EFF on Isohunt article, I'm not the only one playing by the rules and getting shafted and called a thief as a result.

    Blue...I want you to try something you've never done before. Read carefully what I've written, think on it, then try and counter what I say. Problem there is...I've left you NOTHING to use against me, to try and paint me as a criminal. I've put up proof that I pay for content and play by the rules (and horror of horrors, actually THINK when deciding what is good value for money! Why is it I'm not allowed decide that?)

     

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    Bengie, Apr 16th, 2013 @ 11:30am

    Re:

    Maybe we need some sort of way of capping time and money spent on Civil law-suits.

    And maybe we need to break civil law-suits into two categories, Commercial and Non-Commercial. I don't see why a corp should be allowed to sue a person for Commercial Reasons against Non-Commercial actions. eg: non-profit P2P

     

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    mmrtnt (profile), Apr 16th, 2013 @ 11:38am

    Great Coincidence

    Zachary Adam Green has this post up at Falkvinge:

    Let’s Reform Copyright. With A Sledgehammer. Into Smithereens.

     

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    Reality Check (profile), Apr 16th, 2013 @ 11:49am

    Re: As I've said, "transformative" is the key problem:

    A whiny guy once said 'you can't reasonably use someone else's work as the central part of yours!'.

    Fail. From the beginning of known history, people always use ideas and concepts from other people and build upon them. That is a reasonable, logical and beneficial system.

    People who feel that the government should grant monopolies to the one who does something first, and lock those ideas and concepts down, are promoting an unreasonable, illogical and malignant system. That system does not advance anything but greed, enrich lawyers and discourage new artists.

    Of course, since you are paid by the beneficiaries of the malignant system, it will never be in your best interest to consider this.

     

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    jameshogg (profile), Apr 16th, 2013 @ 11:57am

    And people don't believe me when I say that deviantArt is a potential target.

     

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    Anonymous Coward, Apr 16th, 2013 @ 11:59am

    Blah blah blah wha wha wha.

    If you aren't talented and original enough to come up with something that isn't blatantly ripping off someone else, tough shit.

    Deal with it loser.

     

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    Anonymous Coward, Apr 16th, 2013 @ 11:59am

    Re: Re:

    The MAFIAA won't accept this proposal, as the are using the law against selected target to try and intimidate everyone else into only trusting copyrighted material that they buy from shops.

     

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    Gwiz (profile), Apr 16th, 2013 @ 12:06pm

    Re: As I've said, "transformative" is the key problem:

    Therefore, while you can quote or use snippets, you can't reasonably use someone else's work as the central part of yours! I'm not het up about this particular one, but just recognize the principle and you should be okay.


    Maybe if you'd recognize the flaws of a principle like this you'd be okay. It goes against how culture and human advancement has been achieved since the dawning of mankind.

    Personally, I couldn't care less what your misguided opinions are about this. I'm fighting for my grandchildren and their children on this one. It's my desire that they too have the ability to stand on the shoulders of the giants who went before them, so the future of humankind can advance without having to reinvent everything from the past.

     

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    Rikuo (profile), Apr 16th, 2013 @ 12:22pm

    Re:

    Want to tell that to Tolkien? He blatantly ripped of Beowulf when he wrote The Hobbit, what with the dragon going apeshit over a theft of a single piece of treasure.
    Want to tell that to George Lucas? He blatantly ripped off Flash Gordon and movies about samurai to remix them into a story about Samurai in Space.
    Want to tell that to Terry Goodkind, who blatantly ripped off his order of magic-wielding mysterious nuns from Robert Jordan's Wheel of Time series, who himself lifted that wholesale from Frank Herbert's Dune?

    Each one of them is a massively successful artist, who have earned millions for their work and the majority of their work was taken from others.

     

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    jameshogg (profile), Apr 16th, 2013 @ 12:25pm

    Re: Re:

    Careful, he might stay consistent and say that Tolkien, Lucas and Goodkind didn't have the right to do those things. :)

     

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    Forest_GS (profile), Apr 16th, 2013 @ 12:39pm

    At the very least, the rules for fair use should be much better explained. There should be no reason to spend thousands just to find out if what you are doing is actually fair use.

     

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    Anonymous Coward, Apr 16th, 2013 @ 12:40pm

    We need an International Download-Like-A-Pirate Day to promote the ridiculousness of Copyright law and the public's complete lack of respect for it.

     

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    ECA (profile), Apr 16th, 2013 @ 1:10pm

    iTS TRUE.

    Something to remember..

    I could build a device that uses USB external drives, and records TV channels, for around $100..
    any computer formats
    Would play Anything from computer formats, CD/DVD/BR and have networking/USB abilities and output 1080p

    FOR MY PERSONAL USE, I would not be sued.

    IF I sold such devices, I WOULD be sued into the DIRT..

     

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    jupiterkansas (profile), Apr 16th, 2013 @ 1:13pm

    Re:

    The rules are very well explained. Only a judge can make the final determination. The copyright holder can't. The person making the copy can't. The only fix is to change the rules.

     

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    jupiterkansas (profile), Apr 16th, 2013 @ 1:13pm

    Re:

    Isn't that every day?

     

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    Anonymous Coward, Apr 16th, 2013 @ 1:13pm

    Re: Re: Re:

    Tolkein is safe, Beowulf is public domain. However if Tolkein had no right to do this, neither did Disney for most of his works.

     

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    jupiterkansas (profile), Apr 16th, 2013 @ 1:17pm

    This video is the best illustration of the problems with Fair Use that I have ever seen.

    Copyright law was never intended for the general public. It's always been about how businesses operate, and now that everyone has the tools and ability to infringe without giving it a second thought, the laws are no longer valid or useful.

    Reform is long overdue!

     

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    Anonymous Coward, Apr 16th, 2013 @ 1:42pm

    one of the main reasons that copyright is as bad as it is, is abused as much as it is, is because when there is a legitimate case that goes to court, the judges have no clue what to rule on or how to rule! hence, you get damages that are in the hundreds of thousands of dollars at least.
    another reason is that lawyers can charge phenomenal amounts for their services, so it is in their interests to get cases won with huge damages, sending significant percentages to their accounts.
    one other reason is the amount of lobbying that is done in order to get Congress to make the laws how certain industries want them rather than how they should be, using the words of the Constitution as a guide. (if we are not careful, the Constitution isn't going to be worth the paper it's written on, to coin a phrase, in a very short space of time!)

     

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    Nick (profile), Apr 16th, 2013 @ 2:54pm

    A little story about patents

    I started work interning for a software company, who makes programs designed to help a central force (IT) manage up to thousands of computers. It can send software updates, or re-image computers entirely from backups, including all kinds of alterations to the hard drive structure. Specifically, I worked on the imaging part of the program.

    On that program, you can choose to image an entire drive, or image a specific partition. You can then re-deliver the image to that computer (or any other, for that matter) by, say, taking a single partition of a couple on a drive and making it the ONLY partition on the drive. One such use of this would be to remove the 5GB recovery partition some pre-built computers come with (or add it back in).

    The way the company does this is it essentially copies every single file off into a single folder-type file (.img), wipes the drive of its contents, then rebuilds the partition table to have the right number and then copies it back in.

    This massive waste of space (having up to the entirety of the old drive minus the small partition) copied to another computer while you wipe it seemed like a waste to me. I asked the developer of the program if it was possible to simply go into the small part of the drive where it says the partition 1 goes from, say, block 0 to block 65000 and partition 2 goes from block 65000 to 69000 and just make part 1 go all the way across. You can leave the data as it is, just change where you are allowed to store files.

    No, he said. Someone already patented it. A big corporation has the patent on being able to rewrite the partition table to delete or add partitions at will, so no other company can develop it themselves. I, not even a programmer, had figured out the simple steps to do it, yet if we were to implement said technique, we'd get sued because we couldn't PROVE we independently developed such technology. We couldn't PROVE that we didn't just copy their code. We couldn't PROVE that we weren't "inspired" by their hard work and the patent they made.

    And so, we have to do 2+ hours of work for a single computer, tied up gigabytes of information, just because I didn't think of the idea first. I didn't KNOW I wasn't first, or that someone else did it, or how they did it, but that doesn't matter. Just like in copyright, even though YOU can do all the work yourself (making a remix isn't as simple as copying someone's mp3 and posting it on the internet), you are not allowed to profit from the work you did on something.

     

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    Anonymous Coward, Apr 16th, 2013 @ 5:22pm

    Re: As I've said, "transformative" is the key problem:

    Some of the best works I've seen were created despite copyright.

    And if copyirght is getting in the way if creativity then there's no point to have it at that scope.

     

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    n_mailer, Apr 16th, 2013 @ 5:59pm

    Re: As I've said, "transformative" is the key problem:

    "herefore, while you can quote or use snippets, you can't reasonably use someone else's work as the central part of yours!"

    Of course you can, if your work has meaning that is independent from the original. This is really basic art history stuff. A portrait is not a photograph. Shakespeare retold commonly known stories of his day. The Brothers Grimm wrote their fairy tales even though they heard them elsewhere. Warhol soup cans. And so on, ad nauseum.

    Of course, the law disagrees with both of us. It forbids quotes and snippets without permission in many contents.

    People call you a troll because you are a troll. They attack you with vulgar ad hom because you beg for it with your own vulgar ad hom.

     

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    Anonymous Coward, Apr 16th, 2013 @ 6:47pm

    Re: Re: As I've said, "transformative" is the key problem:

    "Just because you're needed doesn't mean you're important." - Ashleigh Brilliant

    The shills clearly don't grasp this corporate maxim very well.

     

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    Anonymous Coward, Apr 16th, 2013 @ 6:49pm

    Re: Re:

    Not for all of us. A lot of people simply do without.

    On the other hand, if shills continue insisting that everyone is a filthy pirate who doesn't do without, and insists on demanding laws that treat people as such, they might start to reconsider.

     

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    Spaceman Spiff (profile), Apr 16th, 2013 @ 10:52pm

    Most excellent presentation! A number of members of my family are artists, actors, writers, musicians. I will send a link to this video to all of them! :-) Thanks!

     

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    Anonymous Coward, Apr 17th, 2013 @ 2:46am

    Re: A little story about patents

    A major point, independent invention is NOT a defence against patent infringement.

     

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    special-interesting (profile), Apr 17th, 2013 @ 5:25am

    The 'new' copyright is worse than Prohibition. It criminalizes the very nature of culture and how strong culture builds upon sharing knowledge in various formats. Building upon the works of others is a healthy way sharing culture develops a strong society. Its the way we progress as a cohesive culture.

    Copyright is a direct tax on the culture of knowledge and even on learning itself. The core idea of copyright is flawed. Forcing content creators to be educated lawyers just to produce a song or book is the same thing as prohibiting it. Its an Air tax.

    The statutory fines for criminal copyright infringement are life destroying events. Its like throwing kids into the gutter to starve to death. (For real. Think I'm kidding?) In exchange for this tax/fine/fee on sharing culture we get walnut tables for the lawyers and corporate special interest groups. The artist has and never see a dime of this kind of blood money. (and sometimes might not want to either)

    Where is the worn out rally cry “for the kids” when it comes to saving them from copyright law? Copyright is like toxic waste being slipped into every book, video, song on radio, TV broadcast, etc. (etcetera dose not seem to cover all the potential ways this invades our lives, culture and society.)

    It poisons the very ability to record important events (be it a video of a child's first step,a TV news broadcast on a show exhibiting what we think is wisdom or knowledge or humor) in our lives let alone sharing them with others.

    The vultures of law are circling and they smell cash settlements without any judge or jury. A bureaucratic lawyer's dream. It even seems that copyright law is being waged as a tax collected by lawyers. Its so profitable that it would be normal to expect criminal organized crime to set up a honey pot to pry money off any that even look.

    If drugs can be sold for profit on the street then lawyer baited honey pots will exist. Copyright is like a monetary drug for lawyers with a 100% addiction rate and sometimes legal suicide. (and the big heavy Prendaa question is... did they do it?) 'Zombie Lawyers' seems to convey the idea nicely.

    Just wrote a comparison on copyright law to the recent manly $25 fine Judge Raymond Voet gave to himself. https://www.techdirt.com/articles/20130415/17310922715/judge-finds-himself-contempt-court-when-his-n ew-smartphone-interrupts-closing-arguments.shtml#c593

    There are probably more reasons to get rid of copyright altogether than for keeping it. The laws wrapped around its corrupt central ideas are just to much to revise individually. The phrase eternal copyright is apt and justified since none of us will live long enough to use any of what we see/read/watch (learn?) in our lives.

    An direct tax on the culture of knowledge and learning itself. The core idea that copyright is flawed. Forcing content creators to be educated lawyers just to produce a song or book is the same thing as prohibiting it.


    Reactionary;

    There are other problems like when courts are used by rich corporations as weapons to intimidate. It would not bother anyone if a few law firms closed because of better written legislation (including tax law).

     

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

  39.  
    icon
    jupiterkansas (profile), Apr 17th, 2013 @ 8:18am

    Re: Re: Re:

    If someone sends you a funny picture or story, and you forward it to a friend, that's copyright infringement.

    It's not just about downloading the big Hollywood blockbusters. It's uploading or downloading or copy and pasting any creative content - photographs, comics, cartoons, articles, poems, song lyrics, or even just a paragraph from a book. Copyright doesn't recognize the scale of infringement, and fair use can only be determined by a judge.

    It's pretty hard to use a computer in any social capacity without infringing copyright, and lots of people do it on a daily basis and would never call themselves pirates. I'm positive even the bobs and blues of TechDirt are guilty.

     

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

  40.  
    icon
    Sheogorath (profile), Apr 25th, 2013 @ 7:32pm

    Regarding Kind of Bloop...

    An excellent analysis of the case can be found at www.copyhype.com/2011/07/kind-of-bamboozled-why-kind-of-bloop-is-not-a-fair-use/
    I'm neither a maximalist or a shill, but I have to agree with the above article, which goes very in-depth for something that covers just one page.

     

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


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