Mike recently reminded us that for some people, bizarrely, stopping "piracy" is more important than making money. Here's another example, this time from Norway:

A student who ran a site which enabled the download of a million movie and TV show subtitle files has been found guilty of copyright infringement offenses. Despite it being acknowledged that the 25-year-old made no money from the three-year-old operation, prosecutors demanded a jail sentence. After struggling due to a lack of case law, in the end the court settle on a fine.

Note that no money changed hands, and there was no attempt to copy the work of others in any way. Instead, the student was simply meeting an evident need for Norwegian subtitles that the original creators and distributors of those films and TV shows didn't address.

So wouldn't the rational thing have been to embrace what this person was doing, and turn it into a commercial opportunity for both him and the studios? That way, the Norwegian public would be happy, because they would have official subtitles that they could use; the Norwegian distributors would be happy, because they could offer English-language shows; and the original producers would be happy, since they would be selling more of their films and TV shows to the Norwegian market, and sooner.

Instead, out of sheer vindictiveness it would seem, charges were pressed, and a jail sentence was "demanded". It's telling that no custodial sentence was in fact handed down, because the infringement was so minor, and the judge simply couldn't find any justification for doing so. That's a further hint that prosecuting this non-commercial activity was completely inappropriate.

But as TorrentFreak explains, it wasn't money that the studios were interested in, but something else -- keeping control:

Although relatively rare, US movie and TV studios have taken legal action against subtitling sites before. The reason they appear to get so annoyed by the existence of these sites is that they allow people abroad to watch movies and TV shows that due to licensing issues haven’t even arrived on their shores yet.

In other words, rather than adapt their business models to the changing times through simultaneous releases around the world, the copyright industries prefer to wield the blunt instrument of enforcement, however counterproductive that may be for everyone -- including themselves.

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Last year, we wrote about how the Russian Pirate Party was refused recognition because officials there didn't like the name, stating that it "is an attack on sea or river craft, which is a criminal offense." Apparently, something similar has happened in Taiwan, where someone who sought to establish the Taiwanese Pirate Party has been denied, after being told that it is "improper" because of "bad connotations" with the word "piracy." So much for "taking back" the word. The guy, Tai Cheh actually fought this decision in court... and has still lost. According to TorrentFreak:

In its ruling, the High Administrative Court agreed with the Ministry of the Interior’s stance that the use of the word ‘Pirate’ did not accurately describe the true aims of the Party.

The MOI said that the term “pirate” could mislead members of the public into voting for people they believed to be real, sea-based pirates. The country’s Criminal Code outlaws acts of piracy, the MOI added.

Are they really concerned that the party will advocate sea-faring piracy?

Recently, some cool new space efforts are lining up to deliver people and payloads into orbit. For example, SpaceX shipped some supplies to the International Space Station, and it's on track to providing a rocket system for ferrying astronauts to the ISS as well. More and more commercial space ventures are competing with government space programs, and this new space race will hopefully continue and create even more inspiring space technologies over the next decade and beyond. Here are just a few other interesting developments along the way.

• NASA and the FAA have reached a tentative agreement to provide better guidelines for regulating all kinds of space launches. Virgin Galactic has been granted a license, but it might be interesting to see if all those amateur weather balloons and sub-orbital rocket projects will run into any regulatory problems. [url]
• Excalibur Almaz is a commercial space transportation company with roots in the former Soviet Union's military space program. For about $100 million, you can hitch a ride on one of these older (but very reliable!) Soviet-era spacecraft that have been extensively tested -- possibly all the way to the moon. [url]
• Citizen scientists are putting together an ArduSat -- an open source satellite -- that could be included on a free launch via a NASA or ESA ride-along program. There ain't no such thing as a free launch? [url]
• China has recently become the third nation to successfully dock a manned space capsule with another space vessel. Three people (including China's first female astronaut/taikonaut) on the Shenzhou 9 spacecraft joined up with the Tiangong 1 space module in orbit. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

There's an interesting blog post by Alexander Abnos, who is both a musician in the band Secret Cities and currently working as an intern at WNYC's SoundCheck radio program. He talks about how much his band loves the fact that people download their music, because it's helped them to build up a really loyal fanbase. He talks about how they signed with a label and spent a few years focusing on the band full time, and were always thrilled when people told them they had downloaded their music, even via unauthorized means:

Attendee: “I really enjoyed the show!”

Me: “What?!”

Attendee (now screaming): “I REALLY ENJOYED THE SHOW!!!”

Me: “Oh! Thanks! I’m glad you had good time! It was really fun!” (It almost always was).

Attendee: “I downloaded [insert Secret Cities album name here] illegally! Hope you don’t mind!”

Me: “Nope!”

I wasn’t lying. I didn’t really mind. We didn’t really mind. The reason is absurdly simple: This person heard our music, and enjoyed it enough to come to a show. Most times, they brought friends along. As a little-known band on the road, what more can you really ask for?

Later on he explains in more detail. And, what it comes down to is the same discussion we've been having for ages: obscurity is a much bigger "threat" than piracy ever was. The biggest challenge for a band is getting known, and these days, file sharing is one major way of getting known:

We love it because of the countless conversations like the one I recounted above. We love it because of the stadium’s worth of people that have listened to our songs on YouTube that might never have heard us otherwise. We love it because of that time in Atlanta on our first tour, when kids in the front row were mouthing along with our songs before our first record was even released.

We can’t put a dollar sign on those things. Why would we even want to?

Close on the heels of Canada's recent copyright reform bill (which despite significant problems also contains some fantastic language that carves out important new exceptions to copyright) the Federal Court of Canada has issued a significant ruling that answers some key questions about copyright online. The decision is in a lawsuit filed by Richard Warman and the National Post against the operator of a forum, and looks at two main points: the right to quote news articles, and the right to link to a photo. On the first question, the court made it clear that even a several-paragraph quote is protected, on not just one but two levels:

While the first claim (Warman's article) was dismissed on the basis that it took too long to file the lawsuit, the legal analysis on the National Post claim involving an article by Jonathan Kay assesses the copyright implications of posting several paragraphs from an article online. In this case, the article was 11 paragraphs long. The reproduction on the Free Dominion site included the headline, three complete paragraphs and part of a fourth. The court ruled that this amount of copying did not constitute a "substantial part" of the work and therefore there was no infringement. The court added that in the alternative, the reproduction of the work was covered by fair dealing, concluding that a large and liberal interpretation of news reporting would include posts to the discussion forum. The decision then includes an analysis of the six factor test and concludes that the use was fair.

Both aspects of that part of the ruling are clear and could have a huge impact on copyright licensing in Canada. Perhaps most notably, as Michael Geist also points out, it raises even more serious questions about the disastrous situation surrounding Access Copyright negotiations at Canadian colleges and universities, and makes the already terrible deal (which many schools are signing on to) look even worse. Unfortunately, since the AUCC all but abandoned its members in those negotiations, many schools will have a hard time benefitting from this ruling—but for those universities that have decided to reject the deal and fight the good fight, the ruling represents a substantial boon to their position.

On the subject of linking to a photo, the decision lays down a third important standard, and is again unequivocal about doing so:

The third claim involved a link to a photograph posted on the photographer's site. The court had no trouble concluding that the link was not copyright infringement, rightly noting that the photographer authorized the communication of the work by posting it on his website. This finding should put an end to claims that linking to copyright materials somehow raises potential legal risks. The Supreme Court of Canada has already ruled against attributing defamation to such links and now the Federal Court has concluded that links cannot be said to constitute unauthorized communication and therefore infringement.

To many of us, that's just common sense: putting something on the internet constitutes a public invitation to link to it. But for years, time and time again we've seen courts and companies around the world attempt to claim that linking is infringement, or otherwise not allowed. And, indeed, this also has serious implications for the Access Copyright agreement, which has schools paying licensing fees and obeying rules for linking to material, despite it becoming clearer and clearer that copyright does not cover these activities.

All told, this is an excellent decision, and offers further proof that Canada has the very real potential to move copyright law in a positive direction. There are still lots of battles to be fought, but there's also a genuine emphasis on the rights of users (especially in the courts) that can hopefully be harnessed and nurtured more and more over time.

For a while now, we've been following a series of very scary court cases that could take away your ability to sell physical products you own, by using a bizarre interpretation of copyright law by the courts. You can click back on that link to read some of the background, but the short version is that courts are suggesting that if a physical product is manufactured outside the US, but anywhere on it includes something covered by copyright (an etching, content, software, etc.) then the entire product cannot be sold without permission from the copyright holder. The reasoning makes so little sense as to be unbelievable. Basically, it says that those products weren't made under US copyright law -- so they don't get "first sale" rights -- but they are still covered by copyright law, so selling them is copyright infringement.

This is nonsensical for any number of reasons. Unfortunately, the Supreme Court is about to hear the latest such case, after ending up with a split court the last time around. The reason it was split was because Justice Kagan recused herself, due to being involved in the case prior to becoming a Justice. Her involvement? Penning the filing of the US government against first sale rights. So it's very possible that she'll continue to retain that viewpoint on the court and basically kill off your ability to resell any good manufactured outside the US without permission. This is scary stuff.

While the issue is before the court, it's still important to get people to speak out about this. A few public interest groups have put together a petition site called You've Been Owned: Don't Let Copyright Trolls Steal Our Property Rights! and Citizens for Ownership Rights. The goal is to get the Obama administration to actually recommend preserving first sale rights (contrary to its earlier position). And, failing that, get Congress to change the laws to fix this problem which will drive many American manufacturers to move overseas. This is, of course, part of the real problem: the language of the statute is awkward in a way that lets the court come to a completely nonsensical and contradictory result.

What's important to recognize is that, for all the talk by copyright maximalists to falsely claim that copyright is no different than real property, and to insist we must "defend property rights" for copyright, here's a true case of property rights being under attack -- and it's because of an overly aggressive use of copyright. The idea that you don't actually own what you bought is an anathema to true property rights. That companies may be able to use copyright law to block you from selling used goods is a massive encroachment on individuals' property rights. If all those copyright maximalists truly believed in property rights (rather than the truth: that they support a government granted monopoly privilege that benefits themselves) they, too, would support this effort against the demolition of first sale rights.

One of the more frustrating things in the startup world is the view that many have that the "goal" is to raise VC funding, and then everything's "done." The same sort of thing seems to happen in the music industry, whereby many musicians get so focused on being "signed" to a label, that they never step back and question if that's even necessary. In fact, they seem to think that "unsigned" has a stigma attached to it, just as many startups that haven't been funded feel as if they're somehow inferior. To correct that "impression" two of my favorite thinkers on the music industry, Andrew Dubber and Steve Lawson, have launched Any And All Records. The basics are explained:

We want you to sign to our record label.

But before you do… you should know that we will do nothing for you. That said, we also won’t cost you anything, we won’t take anything from you or own anything of yours either. No exploitation – and there is no small print.

We want to sign you simply so that you will no longer be “unsigned”. We want to sign EVERYONE so that there are no more “unsigned artists” in the world.

That’s our mission.

So go ahead and join what should quickly become the largest music label on the planet, based on the number of artists signed. And, while the label won't "release" your record, it certainly will provide a ton of useful resources for independent musicians to help create, promote, distribute and monetize their art. That page alone is a pretty good resource list. They also will provide some nice graphics if you want to show people that you're "signed."

Of course, some will argue that this is a joke, and it sort of is. But it's one that is making a really good point. Artists shouldn't be embarrassed by the fact that they aren't "signed" to a label. These days, there are so many ways that independent musicians can do things, that not every artist needs a label and "getting signed" doesn't need to be the primary goal.

Marielle Gallo is probably best known for the Gallo Report, which Techdirt described back in 2010 as a "similarly draconian intellectual property enforcement" to ACTA, with which it has much in common. So it's no surprise that Gallo has been one of the few vocal supporters of ACTA, and it was widely expected that the EU's Legal Affairs (JURI) committee she chairs would support her draft opinion calling for ACTA to be ratified. As we now know, that didn't happen, and JURI formed one of five committees that all recommended that ACTA should be rejected.

Gallo must be a little taken aback by this turnaround: from easily pushing through her Report with its harsh proposals against copyright infringement, she now finds herself increasingly marginalized within the European Parliament on the subject of ACTA precisely because of its disproportionate measures designed to deal with copyright infringement online. A fascinating interview in PC INpact (original in French) gives us an insight into her state of mind at the moment..

As you might expect, she speaks of the "the disinformation campaign we have been enduring for the past months", the standard line taken by the European Commission and its allies. She also makes the interesting claim that "We're supposed to represent citizens, but since they are busy with other things, we are supposed to think for them!" But she reserves her choicest words for the people who have dared to disagree with the pro-ACTA camp:

It's not only a disinformation campaign. It's a soft form of terrorism that frightens people. People are being scared. It's a fantasy. ACTA has become a fantasy. And that, that's propagated by the whole Internet network.

So there we have it. Anyone who dares to disagree with those politicians doing all that thinking are "soft" terrorists, making subversive use of "the whole Internet network" to spread their "fantasy." It was probably inevitable that someone would play the politicians' trump card -- terrorism – against ACTA opponents; and it's no surprise that it was Marielle Gallo that finally did so.

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So... remember that story we just had about Raanan Katz, a real estate developer and a minority owner of the Miami Heat suing a blogger for defamation (and seeking to have her entire blog shut down and stop her from future posting) and then for copyright infringement over a hotlink to an "unflattering" photo of Katz? We'd mentioned that the blogger was defended by lawyer Marc Randazza, who has now revealed that Katz's lawyers are now threatening to sue him directly if he doesn't give up confidential attorney-client communications.

Katz's lawyers sent Randazza a "draft complaint" they say they are prepared to file against him, claiming that he "acted in concert" with the blogger, and "substantially assisted or encouraged her in unlawful activities or have given substantial assistance to her in accomplishing a tortious result, and your own conduct, separately considered, constitutes a breach of duty."

Randazza has responded, in court as part of the ongoing lawsuit, asking for a protective order against this "threatened litigation," which Randazza suggests is really intended to get access to communications between him and his client, breaking lawyer-client confidentiality.

This letter seeks discovery of facts and circumstances outside of the Florida Rules of Civil Procedure.... This letter seeks exculpatory data from a Defendant's attorney which is clearly attorney-client communications. In order to avoid being sued by RKA, defense counsel must tell RKA's lawyers how and why defense counsel did not assist or promote Defendant's critical blogging about the RKA Plaintiffs.

Given the activity in this case already, this certainly feels like an attempt to bury the case in more paperwork. We've seen this kind of thing before, with wealthy individuals who file a bunch of lawsuits, including against the lawyers who defend those they sue. It certainly seems like an attempt to create a nuisance, rather than to address any actual legal conflict (and, yes, to Katz's lawyers: that's an opinion).

One of the the reasons why legislation like SOPA and treaties like ACTA are so dangerous is that their loose definitions allow measures intended to deal with copyright infringement to be used to censor inconvenient opinions. Unfortunately, that's not just a theoretical problem with future legislation, but one that is already happening, as this post from Rick Falkvinge makes clear:

Greenpeace protests an oil company with a parody site. The oil company files a lawsuit against the ISP of Greenpeace, claiming copyright monopoly violation of the company’s look and feel. The ISP shuts down the Greenpeace protest site immediately, complying with the threat from the oil company, without fighting the lawsuit or waiting for the court. Yup: the abuse-friendly copyright monopoly is now abused by oil companies to suppress Greenpeace, too.

You can compare the original Web site, from a company called Neste Oil, with a (modified) screenshot of Greenpeace's version. The original parody site was located at nestespoil.com, a play on the nesteoil.com domain name. The company's not happy about that either:

Nestespoil.com parodies the Annual report 2011 of Neste Oil and criticizes the company’s biodiesel business that aggravates forest destruction. Neste Oil has made a complaint to WIPO (World Intellectual Property Organization) in which it tries to get Greenpeace’s Nestespoil.com domain for itself.

But it's the claim of copyright infringement that's more interesting. That's because the legal action against Greenpeace's ISP, Loopia, tries to address the issue of parody. The document (original pdf in Swedish) says that Greenpeace was seeking to stir up a "political debate", and claims that such "political propaganda" loses the protection of parody, and is therefore infringing on Neste Oil's copyright.

IANAL, and certainly not a Swedish lawyer, so I've no idea if that's true, although it would be disturbing it if were, since parody is an important part of political discourse. In any case, it's troubling that copyright is being used in this way to shut down legitimate debate about important issues like energy policy and deforestation.

And there's another concern, which is highlighted in an interesting offer by the Swedish ISP Binero to host Greenpeace's parody site:

As a Swedish web host shut down the Greenpeace parody site Nestespoil.com after a law suit from Neste Oil, competitor Binero invited Greenpeace in, with the new site Nestespoilreturns.com. Binero considers the EU E-commerce directive 2000/31/EG and the consequent local laws to be absurd and that all sites must be allowed to have their legality tried by authorities. Current laws put web hosts, ISPs and other middle men at risk of being sued for damages unless they immediately shut down sites in unclear cases. Large corporations can stop sites simply by threatening middle men and we believe this is a threat to free speech.

That's a hugely important point at a time when supporters of copyright maximalism are belittling people's concern that proposals like SOPA and ACTA will lead to censorship. That's not because of any claimed "right" to make unauthorized copies, but because those laws will be abused to shut down commentary sites in the same way that Greenpeace's was muzzled.

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US News runs some online debates, in which they bring together a bunch of experts to debate a particular topic of interest, allowing readers to vote on which arguments they agree with most. This week, they're debating if police should need to prove probable cause in order to get a warrant to get your mobile phone location (and potentially track you). There's a great opening argument from Senator Ron Wyden, who worries about the possibility for abuse:

While having access to geolocation data is clearly useful for law enforcement agencies, without the resource limitations that used to discourage the government from tracking you without good reason, the limits on when and how geolocation data can be accessed are unclear. A police department, for example, might not have the resources to follow everyone who lives within a city block for a month, but without clear rules for electronic tracking there is nothing to stop it from requesting every resident's cellphone location history.

Obviously, we expect people to see us when we step out onto the street each morning, but we don't expect those people to track all of our movements over the course of days, weeks, months, or even years.

Also on his side (in this debate) is Rep. Jason Chaffetz, who makes a straightforward 4th Amendment argument, the ACLU's Catherine Crump, who not surprisingly focuses on the privacy arguments and Jennifer Granick from the Center for Internet and Society talking about how the lack of a warrant requirement leaves the system wide open to abuse by law enforcement.

Who can possibly argue against all that? Well, there's Joseph Cassilly, who had been the president of the National District Attorney's association. His basic argument is that having easy access to this data makes the job of law enforcement easier:

A recent example of this was in a gang shooting in my jurisdiction wherein an anonymous caller who feared gang retaliation if his identity was known gave the police the identity of two gang members who committed the murder. The police received cell phone information regarding these individuals from prior arrest reports. The cell-site historical information for the time of the killing shows that those two cell phones were hitting off the same tower at the same time in the area of the murder.

Nice story, but there is nothing in the Constitution that says we need to make law enforcement's job easier. In fact, it's the opposite. The reason we have a 4th Amendment is to make law enforcement's job more difficult. But that's a choice we make as a free society, recognizing that protecting our civil liberties and freedoms is an important barrier to inevitable law enforcement abuse.

Also in favor of easier spying on people is Rep. Trey Gowdy, who seems to argue that using your GPS data to track you is no different than other "advancements" like "DNA analysis, fingerprint analysis, voice exemplars, blood spatter, or court-approved wiretapping." Gowdy is a bit more middle-ground here, suggesting the importance of privacy, but saying he thinks that location data should require a "lower standard" for a warrant than probable cause. Of course, the problem there is that the whole "probable cause" bit comes to us from The Constitution. So, changing that is difficult.

Either way, you can check out the full arguments and vote for which ones you find most compelling...

One of the key talking points that we've heard from the "haters" of the new music business models is the claim that Spotify pays next-to-nothing to artists. This is really based on a few stories, taken totally out of context, concerning a few artists who received relatively small checks from Spotify. David Lowery actually used this as a key point in his screed against young music fans and their supposedly "unethical" behavior: to him, even if you are listening to a legal, licensed service like Spotify, you're "unethical" because he's heard rumors that Spotify doesn't pay enough.

However, the more you look, the more you realize that Spotify actually pays out quite a lot. A few months ago, someone at one of the music collection societies told me about an analysis they had done concerning the amount of money paid per listen -- comparing Spotify to radio, iTunes and lots of other things. When you knock it down to a per listen basis, it turns out that Spotify pays a hell of a lot more than any of those other sources. It's just that it's incremental so it looks smaller. With iTunes, people pay per download, not per listen, so you basically upfront a certain amount of money and then no more money is ever paid for listening to those songs. With radio, there is (effectively) a per listen rate (outside the US if we're talking performances), but it's aggregated because it's effectively spread among all the listeners. So, Spotify makes it incremental, and it seems small. but when measured on a per listen basis, the amount is significantly higher (as in an order of magnitude) than other things. The other bit of confusion about this is that Spotify is still new, and it's growing. But start from a small base, and it's easy to be confused by small numbers.

However, the info is starting to get out. Evolver.fm has some interesting details, starting with a leaked report showing that the payouts from Spotify to labels (including indies) have been increasing massively. They also have an interview with Merlin's CEO (Merlin represents a bunch of indie labels, giving it a lot of clout in negotiations). And Merlin says the claims of Spotify not paying out are bogus:

Spotify’s payouts to Merlin’s 10,000-plus indie labels rose 250 percent from the year ending March 2011 to the year ending March 2012. More importantly, the revenue per user (RPU) “has grown significantly alongside the overall revenue growth and is currently the highest it has been since the launch of the service,” said Caldas. “We see consistent, ongoing growth on revenue per user, revenue per stream, and the total revenue the service brings.”

So what's the real issue? Well, as Merlin's CEO says, Spotify pays labels, not artists. And labels aren't always great about paying artists. That's not Spotify's fault. It's what you get when you sign up for a major label that demands your copyrights (you know, the kind of system that David Lowery insists is better). There's also the issue with the growth of the service. Again, Merlin's CEO points out that Spotify has been growing a lot (helped along by its adoption in the US), but payments do take some time, first from Spotify to labels and then from labels to artists (if the labels ever do pay). So what artists are seeing is payments from quite some time ago, not what's actually happening today.

Meanwhile, Hypebot has a great interview with D.A. Wallach, who is both half of the very successful band Chester French (who we've written about for their amazing ability to connect with fans and their cool ideas like encouraging fans to share their music), and also the "artist in residence" at Spotify -- where he helps present the artist's viewpoint, and act as a liaison with other artists. In the interview, he points out that about 70% of Spotify's revenue is being paid out to copyright holders at this point:

Anyone who doesn’t think we’re paying a fair cut hasn’t seen the numbers we pay out. By far the vast majority of the money we’re making goes back to the owners of the music – about 70%. When compared to iTunes, the average listener spends $60 dollars a year into the creative community, whereas Spotify Premium users spend $120 per year. As “the pie gets bigger” so to speak, so do the royalty payments. The growth of the platform is proportional to the royalty pay out and since inception we’ve already doubled the effective per play rate.

Of course, once again, the money is going to the labels, and it's the label's job to disperse it to the artists. But to use those small payments as evidence against the "new" system is wrong, since it's still the "old" labels hanging onto the money.

There are, still, some legitimate concerns about how Spotify splits up its proceeds between major labels and indies, since the majors have an equity stake. So there is a reasonable concern about fairness. But the claim that Spotify just doesn't pay very much to artists is simply unfounded.

Victoria Espinel, the White House's Intellectual Property Enforcement Coordinator, has announced the opening of a public comment period for people to give their thoughts to the administration on what it should be doing about "intellectual property enforcement." As always happens with "public comment" periods, expect large filings from big special interests. Also, I wouldn't expect any major change to come from this. However, I would still recommend submitting carefully argued, well-thought-out filings on your thoughts concerning the White House's approach to "enforcing" intellectual property. While I do not always agree with Espinel or the administration in how it handles these things, I have found them to be very open to actually listening to concerns from people -- much more so than other parts of the government that have taken a specific view on these issues and have no interest in budging. Espinel, at the very least, is actually interested in opposing viewpoints and the more detailed, thoughtful arguments she hears, the better. The key part of her request is as follows:

I believe that essential to the development of an effective enforcement strategy, is ensuring that any approaches that are considered to be particularly effective as well as any concerns with the present approach to intellectual property enforcement are understood by policymakers.

I will be submitting my own thoughts, which I will also publish here, but for those thinking about what to say, I would focus on this sentence above. Historically, many of the government's approaches have not been at all effective, and have created a number of significant problems -- most of which have been ignored by the government (either willfully or through ignorance). This really is a chance to provide examples of why the current policy is not effective (and will never be effective if it keeps on the current path) as well as the "concerns" with the current approach, such as the criminalization of expressive behavior and the outright censorship of media publications.

As always, if you are filing comments with the government, make sure to proofread them carefully, and make your arguments clear and persuasive. The details of how to submit can be found here. Submissions are due by July 25th at 5pm ET.

We've mentioned that the copyright maximalists of the world never stop in their ongoing efforts around the globe to expand government granted monopoly privileges. Back in April we warned about an upcoming negotiation on an "audiovisual right" that would create an entirely new -- and entirely unnecessary -- form of "copyright" for performers themselves. Copyright, of course, goes to whoever "fixes" the work. So, for movies, the studio producing it gets the copyright. But this treaty goes above and beyond that and would grant the actors in video works entirely separate rights, allowing them to control how their images are used around the globe.

And, of course, while everyone's been paying attention to things like the ACTA vote in the EU, this treaty has moved forward and may be signed as soon as today from the sound of things. I have yet to see a reasonable explanation for this, other than "gee, actors would really like it if we gave them monopoly rights." Reuters quotes WIPO's maximalist-in-chief, Francis Gurry insisting that "it's a real problem" but never actually defining how it's a problem:

They also have no rights in many countries if their work is manipulated in any way that may harm their reputation.

"It's a real problem - it's not an artificial problem," Francis Gurry, the World Intellectual Property Organization's director general, told Reuters in an interview on Wednesday.

"The actors are the ones, in the international framework, who have not been catered for."

Wait. So this is all about some actors being upset that someone "manipulated" their work? We're creating an entirely new monopoly right for actors because they're all upset about someone creating a little mashup or parody? And this is "a real problem"? Are they insane? This isn't a problem at all. This is catering to a population of people (Hollywood actors) who already have skins too thin, who will now be able to try to stifle all sorts of protected speech, parodies, mashups, commentary and the like, just because they might not like it.

That's no reason to create new monopoly rights.

The negotiations for this agreement have been taking place in Beijing, leading Gurry to talk about why that's the perfect place for such negotiations due to China's cultural history:

The Director General said it is particularly appropriate that the event is taking place in Beijing because of the depth of China’s historical association with the performing arts, as well as the vitality and dynamism of its contemporary theatre, cinema and television. “Theatre, acting and performance in China date back to the Shang Dynasty and enjoy an unbroken historical continuity of development and adaptation, leading to the blossoming contemporary culture that saw China produce over 500 feature films in 2010 and the largest number of television series of any country in the world,” he said.

Er... isn't it worth pointing out that this "vitality and dynamism" of culture in China was built up almost entirely without intellectual property laws, since the country only introduced copyright in 1991? Why is Gurry pretending that China needs these new monopoly rights when we've already seen that culture their flourished without it? Amusingly, a Chinese official at the meetings announced that: "Respecting IP is ... a mark of our civilization," which appears to be an out and out fabrication.

The full proposal (also embedded below) is really broad, and appears to mimic many of the rights established by copyright law. Performers -- mainly actors, but also musicians -- even if they're not the copyright holders will get an exclusive right to prevent others from reproducing, distributing or performing the works. In some cases, the rights appear to be even broader than current copyright law, such as an explicit "making available right." Under copyright law there's been some dispute if merely "making available" violates the "distribution" right, or if someone actually has to download it to violate that right. However, this treaty explicitly defines a "making available" right -- showing, once again, how IP laws only seem to expand outwards. Furthermore, it establishes "moral rights" for performers -- an idea that the US has repeatedly rejected for everyone outside of a very small group of artists (such as painters). It seems troubling that we'd suddenly agree to a massive moral rights regime without any public discussion in the US.

On top of that, Article 15 of the agreement appears to include an exceptionally broad anti-circumvention provision -- something we've already found to be disastrous under the DMCA. Why would we possibly want to expand that such that performers can go after anyone for breaking DRM even if for perfectly legal purposes. This makes no sense.

And while it might sound nice that performers would get their own rights outside of the copyright, that's not how it's going to play out. One of the "differences" this time around from the last time it was discussed a dozen years ago, is that this version will allow for the transfer of such rights to producers... meaning that actors in Hollywood movies will be forced to hand these rights over to the studios anyway -- meaning more excessive monopoly rights that the MPAA and RIAA will be able to assert to shut down legitimate content.

This thing has disaster written all over it... and it appears to be passing without most people noticing.

We've written a lot about Louis CK since the huge success of his direct-to-fan sales strategy for the video from his last tour, and he continues to be one of the best examples of how being open, human and awesome is an important part of success these days. Now, while other comedians are following in those footsteps, he's continuing to innovate: yesterday he announced that tickets for his new tour will be sold direct to fans, exclusively through his website, just like the videos. There are all sorts of benefits for fans, and all sorts of detriments for scalpers (his two core motivations):

Making my shows affordable has always been my goal but two things have always worked against that. High ticket charges and ticket re-sellers marking up the prices. Some ticketing services charge more than 40% over the ticket price and, ironically, the lower I've made my ticket prices, the more scalpers have bought them up, so the more fans have paid for a lot of my tickets.

By selling the tickets exclusively on my site, I've cut the ticket charges way down and absorbed them into the ticket price. To buy a ticket, you join NOTHING. Just use your credit card and buy the damn thing. opt in to the email list if you want, and you'll only get emails from me.

Also, you'll see that if you try to sell the ticket anywhere for anything above the original price, we have the right to cancel your ticket (and refund your money). this is something I intend to enforce. There are some other rules you may find annoying but they are meant to prevent someone who has no intention of seeing the show from buying the ticket and just flipping it for twice the price from a thousand miles away.

Some of these rules may be a pain in your ass, but please be patient. My goal here is that people coming to see my shows are able to pay a fair price and that they be paying just for a ticket. Not also paying an exhorbanant fee for the privalege of buying a ticket.

Tickets across the board, everywhere, are 45 dollars. That's what you'll actually pay. In every case, that will be less than anyone has actually paid to see me (after ticket charges) in about two years and in most cases it's about half of what you paid last year.

The benifit for me is that I won't get angry emails from anyone who paid a ton of money to see me due to circumstances out of my control. That makes me VERY happy. The 45 dollars also includes sales tax, which I'm paying for you. So I'm making more or less depending on the state.

From the sound of it, CK had to do a lot of work to make all the necessary arrangements and sell the tickets the way he wants to sell them. He appears to be using the ticketing platform Etix but is not actually included in their listings, instead selling only through louisck.com. He mentions that it was hard to find venues that would agree to let him sell the tickets exclusively, so he's ended up booking some unusual locations and smaller venues where he'll do multiple shows. He also admits that he's making less money this way than he would on a conventional tour, but that's not really surprising considering how cheap the tickets are. He says he just likes doing shows, is "making enough money doing comedy" already, and really wants to bring the price down—plus he probably also knows that, in the long run, having control over all his own sales is likely to pay off.

I'd say it will be interesting to see how this turns out, but there's not really much question, because CK is pretty consistent about selling out shows. What's really interesting is the broader picture, in which CK is actively pushing forward to find new business models and demonstrating all sorts of possibilities for others.