Re: Re: Re: Re: Re: Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm
Ironically, that's one of the arguments used in the Eldred/Golan cases for putting public domain works back under copyright; they'll be promoted more if we know we can extract monopoly rents from them!
But really, if a great work really has potential to be huge, copyright should serve to encourage partnership ventures, where no one party gets screwed in the process. Encourage the publicity by granting incentives to lift up the original, so the artist responsible is in a better position to create future works of that caliber. Don't shortchange the public of the artist's full potential body of output out of zeal for a completely uninhibited market.
You're consistently refusing to acknowledge any shades of grey in the use of prior art to create new art. Inspiration and slavish copying are not the same thing, and wider culture (along with every modern legal regime) has validated the distinction. You would do well to acknowledge this, if only to then try to explain why that distinction should not be.
You're assuming the changes were what made it valuable. That the "new version" succeeded on those merits, rather than by the position those who copied were in to launch it. In such a case, their contributions may merely be cloaking what was really valuable about the song - everything that was copied. Arguments can be made both ways, and it doesn't seem intellectually honest to presume one over the other without more data. More fundamentally, if the improvements were more important to its success, why not license the arrangement on the cheap knowing that the raw material being procured isn't as valuable as what they would have to add?
Re: Re: Re: Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm
You're comparing the complexity of an artistic work to a pizza recipie? There's a reason why recipes can almost never be covered by copyright, and it's the same reason your analogy breaks down; we're talking about completely different types of "works" with an infinitely greater potential for variation in one. And you continue to conflate inspiration with slavish copying as though they are one in the same. They most certainly are not. I say this as a devoted Techdirt reader - unwillingness to explore a middle ground on these issues is what relegates so many anti-maximalist opinions to wingnutty categorization (and consequentially irrelevance). Let's not be our own worst enemies here.
Re: Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm
You write a book. I copy the book with only minor tweaks. I market it better than you and profit, your version is crowded out of the market, you abandon ever following up on the work. Fair? I don't think so. The kind of thing we'd like to encourage in the market? I don't think so. I know the "free riding" term has been hijacked by Levine and others, but I think it has utility in the discussion despite their lobbyist hyperbole. There are ways to profit off the infringement of your works, true. But I don't think it should supplant the ability to discourage others from SLAVISH mimicry through the judicial system. Emphasis on SLAVISH. I fully support remix culture, borrowing from prior works, etc. But there should always be a line. Perhaps one set higher than the current stifling one. But a line nonetheless.
Dn't be stupid. She never claimed copyright on the weather metaphor. She claimed copyright on a song that incorporates the metaphor into a multitude of other elements, enough of which she believes were copied to constitute infringement. If you're going to critique, at least be intellectually honest about it.
I have a feeling that a lot of the usual Techdirt lurkers are not going to receive this post well. But it's an excellent post. Even as copyright skeptics, we should be willing to admit there is a difference between borrowing bits and pieces versus wholesale slavish copying. The former gains us new works merely using the old ones as a platform. The second is free riding without any substantial contribution to justify the ripping off of the original artist. There is a place in this world for both remixing and copyright enforcement. Let's not allow disdain of the current system's overreaches to deny its utility in the truly egregious cases.
Recall that Issa was initially on the wrong side of the Research Works Act until the Internet informed him of its flawed nature. Contrary to how you may like to frame things, our community's supporters are just that -- supporters. Not saints. We have no problem calling them out when they go astray. It's kind of part and parcel of the whole "staying principled" thing. Other factions may want to try it out sometime.
I can't count the number of times I've read Supreme Court cases that are purely functional rather than intellectual. Many times Justices perceive deviating from past practice at all to be rocking the boat, even if adherence to stare decisis has already steered them into a tempest. You only need to look at the Golan decision (and its immediate predecessors) to see that play out.
Yeah, I'm a tad worried about this decision insofar as it sets up a potential circuit split between the 2nd and 9th on "right to control" -- how big of a split, we won't know until the District Court reads the tea leaves that've been handed to it. But it's slightly encouraging that the 2nd Circuit was only able to come up with a single example of circumstances that evince a right to control (though I'm perturbed as to where it wants Grokster to figure into the equation). Oh well. At least we got another nail in the coffin of red flag knowledge and the notion that it requires any less specificity than actual knowledge.
The problem is that ASCAP operates under a consent decree with the Justice Department (the result of antitrust wrangling many years ago). The government dictates many of the terms they operate under (from fees charged to licenses available) and presumably already knows about their disbursement methods. It was justified back in the day under technical limitations more than anything. However, new tracking technologies are going to make it possible to actually keep exact data on copyrighted performances (rather than the current "representative sample" nonsense) and send out payments accordingly. Companies like Music Reports are already leading the way on the licensing side. Now the rest of the industry needs to catch up.
You're thinking of a scenario where a private entity chooses not to give someone a forum. Any lawsuit against speech is inherently using the tools and force of the government to suppress speech, and thus a First Amendment issue.
The update actually makes sense to me. A first draft of a brief can often just be a giant authority dump, the point being that the reviewing attorney decides what raw material it's best to refine and focus the arguments on. If Ovadia just decided to throw that authority dump into a brief template, that's her fault.
I'm with you on the tiers. I just bought the special from Ansari, and he has his Twitter feed on the page, the most recent of which seems to be "Download the video, hit play, close your eyes. RT @calebteaches Is there any way to download an audio-only version of the special?" All jokes aside, why isn't that an option? Charge $3.00 for an audio-version of the special, or $1.00 if you've already bought the video. There are more aspects of these specials waiting to be monetized by savvy comedians, and more models waiting to be tried. I'm waiting for someone to release a special in 20-minute segments, and as enough people purchase each segment, the next one is unlocked for purchase. Have a 100-minute special, 5 segments, have each tier unlocked at 50,000 purchases, bring in at least $200k by the time the full special is unlocked (assuring a minimum level of pre-piracy monetization), and rewards are given to those who buy early (access to download the full, single-segment special, obviously, plus maybe bonus cuts). Come on, comedians. Show us your creativity off the stage!
Some copyright owners still haven't woken up to the fact that the general public now views the issue of copyright enforcement as an issue of equity. They don't care that you have a valid copyright claim if you're using it to extract millions of dollars from an elderly grandmother or six-year-old boy. Similarly, when you've got a pub that's been operating for two decades with no evidence of consumer confusion and a sizable client base endeared to it, just because they may have crossed some minor IP lines does not mean you won't be excoriated in the court of public opinion if you go about enforcing your rights the wrong way. And that'll cost you far more in the long-run than whatever license fees you forfeit by not playing hardball. Maybe this will encourage artists' estates to do a little bit more homework on their targets before they go rent-seeking.