The Motion Picture Association has never acquiesced in the view that home videocopying is a fair use. An argument to the contrary in one of the amicus briefs is mistaken.

The home videocopyist makes no independent or creative effort; he contributes nothing to advance science or culture. He merely chisels -- by making a copy for nothing. That is not fair use.

What is fair use? Fair use is not a law. There's nothing in law.

No matter how socially beneficial Google's search engine may be in general, the activity at issue in this case -- making unauthorized copies solely to direct users to other unauthorized copies -- hardly deserves the label "transformative."

Copying a copyrighted program or film with a digital video recorder is a violation of the exclusive rights of the copyright owner under Section 106 of the Copyright Act. Such copying is entirely distinguishable from the type of copying which, in narrow and different circumstances, might be defended as a fair use.

Real cannot rely on the alleged "fair use" defense that consumers can make copies of DVDs to avoid liability for trafficking in a circumvention product.... As the Second Circuit held, the plain language of the "DMCA targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred.".... the "DMCA does not have a 'fair use' exception."

The district court’s very brief discussion of the third factor simply observes that because the defendant’s purpose was making and distributing copies of whole works, copying of entire works was necessary. Defendants who copy whole works will almost always be able to argue that doing so was necessary to their purpose. Surely in a case involving the most massive, systematic copying of copyrighted works in history, the district court should have addressed whether the amount and substantiality of the copying was really justified.

In evaluating the fair-use defense, the Court should reject attempts to overly expand, or give disproportionate weight to, the fair-use factor one concept of “transformative” use. Contrary to the assertions of defendants and their amici, a defendant does not meet his burden to show that an unauthorized sequel is a fair use merely by showing that it has crossed a threshold of “‘add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message,’”

The compatibility of the fair use doctrine with the three-step test has recently been the subject of a good deal of scholarly commentary and controversy; but no definitive determination on that subject has ever been made. At the time the U.S. first became subject to the three-step test, when it adhered to the Berne Convention in 1989, there seemed to be no serious consideration of whether Section 107 was incompatible with Article 9 (2) of Berne. Since the mid-1990s, the WTO dispute settlement process has provided a potential forum for claims that fair use is to broad or too ill-defined an exception to satisfy the three-step test. But no such claims have ever been brought, even though there are doubtless a number of WTO members whose nationals could claim to have been injured through fair use decisions by U.S. courts that unauthorized uses of their works were “fair” and therefore sheltered by Section 107. It is worth noting that the one provision of U.S. copyright law that has been found to exceed the bounds of the three-step test, by decision of a WTO dispute settlement panel, is not Section 107, but rather Section 110 (5), a specific exception involving the public performance of music in bars and restaurants.

Since it is inconceivable that, as part of any new system of copyright exceptions in Australia, its courts would be directed to slavishly follow U.S. precedent, it is inescapable that there would be considerable uncertainty about the resolution of claims based on the new system in Australian courts. This is likely to create a deleterious level of unpredictability for copyright owners, copyright users, and the public. Whatever social benefits might fairly be attributed to the fair use doctrine under U.S. law would be unlikely to survive the passage across the Pacific to Australia.

First, it raises a question of fundamental fairness about the appropriateness of punishing an unrelated group for circumstances beyond their control. U.S. copyright owners have found themselves chips in a high-stakes international game with no recourse. In addition, TRIPs obligations implicate many downstream stakeholders -- distributors and licensees, for example -- who rely on stable IP rights to function, so suspension of these obligations would affect many individuals and companies in other sectors and even other countries.

Second, application in this situation seems to run counter to the purpose of cross-retaliation. Since the 1990s, Antigua has set itself up as a safe haven for offshore gambling. Licensing of gambling services make up a significant portion of the country’s revenues. Cross-retaliation as a remedy is, in theory, supposed to provide leverage to smaller, less-developed countries in trade disputes against larger nations. But the Antigua gambling industry is composed of large, international corporations.

The foundational premise of Locke's theory is that all people have a natural right of property in their own bodies. Because people own their bodies, Locke reasoned that they also owned the labor of their bodies and, by extension, the fruits of that labor. When an individual catches a fish in a stream, he has a right to keep that fish because but-for his efforts, the fish would not have been caught. For the same reason, an author has a right to his works because his efforts made the work possible. Under Locke’s view, "[o]ur handiwork becomes our property because our hands—and the energy, consciousness, and control that fuel their labor--are our property."

That is, "a person rightly claims ownership in her works to the extent that her labor resulted in their existence." If anything, under Locke's theory, intellectual property should be even more worthy of protection than physical property. Land and natural resources are pre-existing and finite, and one person's acquisition of a piece of tangible property may reduce the "common" that is available to others. Not so with tangible expressions: the field of creative works is infinite, and one person's expression of an idea does not meaningfully deplete the opportunities available to others; indeed, it expands the size of the "pie" by providing inspiration to others. Moreover, while tangible property such as land and chattel is often pre-existing and acquired through mere happenstance of birth, intellectual property flows directly from its creator and is essentially the "propertization of talent"--that is, "a reward, an empowering instrument, for the talented upstarts" in a society.

But creation of the loaf is not the reason why the baker owns it. He owns the loaf because he owned the dough that he baked. He already owned the dough, before any act of "creation"--before he transformed it with his labor. If he owned the dough, then he owns whatever he transforms his property into; the act of creation is an act of transformation that does not generate any new property rights. So creation is not necessary for him to own the resulting baked bread. Likewise, if he used someone else's dough--say, his employer's--then he does not own the loaf, but the owner of the dough does. So creation is not sufficient for ownership.

The central plank of the 1710 Act was then, and remains, a cultural quid pro quo. Parliament, to encourage "learned Men to compose and write useful Books", provided a guaranteed, if finite, right to print and reprint those works so composed. The legislators were not concerned with the recognition of any pre-existing authorial right, nor were they solely interested in the regulation of the bookseller's market.

In the 1690s, Parliament refused to renew the Stationers’ Company’s printing monopoly, and authors and booksellers in the newly competitive industry began pressing for formal protection for their works. Although he strongly opposed the Stationers’ Company’s monopoly, John Locke himself described literary publications as “property” and argued in a 1694 letter to Parliament that formal publishing rights should last for the life of the author plus seventy years.

In 1710, Parliament enacted the Statute of Anne, which formally granted authors of existing works a 21-year exclusive publication right and authors of new works a renewable 14-year exclusive right.

Specifically, the study of the Convention’s record provides three indications that the Framers intended the Progress Clause as a limitation on Congress’s intellectual property power. First, Madison and Pinckney’s initial proposals to vest patent and copyright powers in Congress were plenary and did not include language relating to the promotion of progress in science and useful arts. Had the Framers been content with such plenary patent and copyright powers, they would have likely adopted them as proposed. The Framers’ choice not to adopt the plenary proposals, but rather to subject their exercise to specific ends, tends to prove that the Progress Clause was added as a limitation.

No such right at the common law had been recognized in England, when the colony of Penn was organized. Long afterwards, literary property became a subject of controversy, but the question was involved in great doubt and perplexity; and a little more than a century ago, it was decided by the highest judicial court in England, that the right of authors could not be asserted at common law, but under the statute. The statute of Anne was passed in 1710.

That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear, from the provision that the author, &c. "shall have the sole right and liberty of printing," &c. Now if this exclusive right existed at common law, and congress were about to adopt legislative provisions for its protection, would they have used this language? Could they have deemed it necessary to vest a right already vested. Such a presumption is refuted by the words above quoted, and their force is not lessened by any other part of the act.

Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it. This seems to be the clear import of the law, connected with the circumstances under which it was enacted.

1. The case had nothing to do with fires or theaters. The quote was Holmes giving a general statement that has no actual bearing on the case or precedential value in court ("dicta" in the legalgeek speak).
2. The case is, to this day, considered one of the more odious and regretful decisions by the Supreme Court, in which they locked up a member of the Socialist Party for distributing incredibly tame pamphlets to give to prospective draftees about their rights during World War I.
3. The case was later effectively (though not explicitly) overturned by Brandenburg v. Ohio and the ruling in the case itself is no longer binding caselaw anyway.
4. Holmes himself, very soon after this decision, issued another decision that argued quite differently in Abrams v. United States, where he made the much more reasonable and useful argument:

   "The ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."

Holmes' quote is the most famous and pervasive lazy cheat in American dialogue about free speech.

When DDR lawyers got their chance to cross-examine Pichler, they flipped through many of the same webpages, then talked about differences between the host pages and the store pages that Digital River served up. For example, on the Digital Frontier website, the store page was missing the navigation bar present on the main Digital Frontier site.

Pichler admitted that some of the pages looked different. “Our goal was to replicate the look and feel of the website,” but each client had its own peculiarities, and some stores matched their hosts better than others.

For most of human history, music was a public and participatory experience, inextricably linked to a plural of people synched in a real-time experience. As a binding agent of dancing and singing bodies, music could literally manifest community. And lest you think our modern society has evolved beyond the tribal utility of music, just think of religious services, major sporting events, weddings, nightclubs, road trips… when was the last time you attended one of these without some sort of collective music ritual?

...

In many ways, music is the original social network. This makes musicians founders of community. In a networked world, that’s powerful.

Just like in the era of patronage, pledgers are usually not buying a commodified product. The most successful music Kickstarter projects sell you one or more of three “values”: 1) access to artist (as discussed above), 2) exclusivity and 3) recognition/participation (especially for artist’s creation).

So we’re going to see more artists open up the creation process to their fanbase. Everything from crediting fans in the liner notes, to tracking fans' recorded sounds as real stems, to skyping and polling fans during studio sessions.

As a musician, it’s already technically possible to do this. In the next few years, we’re going to find it become more culturally acceptable on both the artist and fan side. More importantly, artists are going to start finding which sorts of packages their fans actually buy, etching out the contours of a new crowd patronage “model”.

...the heavy load of patent cases on the court's docket means that the judges of the Federal Circuit are constantly interacting with patent lawyers. In addition to hearing their arguments in the courtroom, they read the same patent law publications as the lawyers, hire young patent lawyers to clerk for them, and are invited to speak at events organized by the patent bar.

Moreover, the prestige of the Federal Circuit itself is directly tied to the prominence of patent law in the American legal system. If the Federal Circuit had followed the stricter rules in place before the court was created, patent law might have remained a legal backwater, receiving little attention from either the legal profession or the general public. That, of course, would have made the Federal Circuit a less prestigious place to work.

[....] patent appeals are exclusively heard in DC by judges who live and breathe patent law. Unsurprisingly, this leads to insular thinking. For example, when we interviewed Paul Michel, who served as the Federal Circuit's chief judge from 2004 to 2010, he didn't seem to understand the problems facing small software companies. "If software is less dependent on patents, fine then. Let software use patents less as they choose," he said, seemingly oblivious to the fact that software companies don't have the option to opt out of patent troll lawsuits.

This dismissive attitude toward Supreme Court precedents apparently survives to this day among patent lawyers. In the wake of this year's decision limiting patents on the practice of medicine, patent attorney Gene Quinn wondered, "How long will it take the Federal Circuit to overrule this inexplicable nonsense?" Obviously, the Federal Circuit can't "overrule" a Supreme Court decision. But with enough persistence, it can, and often does, subvert the principles enunciated by the nation's highest court. And when it does so, it almost always works in the direction of making patents easier to obtain and enforce.

The consolidation of the patent jurisdiction in a single appeals court has also deprived the judicial system of valuable viewpoint diversity. Consider Judge Richard Posner of the Seventh Circuit Court of Appeals. This summer, he threw out the entire patent lawsuit between Apple and Motorola, arguing that the patent system had descended into "chaos." Posner was able to hear the case because he was temporarily filling in as a trial court judge, but the Federal Circuit—not his own Seventh Circuit—will hear appeals in the case.

Under the pre-1982 judicial structure, Posner and his colleagues on the Seventh Circuit Court of Appeals would have heard appeals in some of the nation's patent lawsuits. If his comments in the Apple/Motorola case are any indication, Posner would sharply disagree with some of the Federal Circuit's precedents. This kind of disagreement among appeals courts, known in legal jargon as a "circuit split," would signal the Supreme Court that it needed to step in and resolve the dispute.

Posner's skeptical view of the patent system may be explained by the fact that he's an academic as well as a judge. This background may have exposed him to academic criticisms of current patent jurisprudence that aren't as well known to other judges. Similarly, if the Ninth Circuit Court of Appeals (based in San Francisco) were allowed to hear patent appeals, some of its judges might share Silicon Valley's skeptical attitude toward software patents. Such dissenting views would provide balance to the Federal Circuit's pro-patent rulings and give the Supreme Court the raw material it needs to fashion a sensible body of patent law.

It may seem like a joke, but for many the rise of fanfic is "the end of the world". Fanfic is seen as the lowest point we've reached in the history of culture – it's crass, sycophantic, celebrity-obsessed, naive, badly written, derivative, consumerist, unoriginal – anti-original. From this perspective it's a disaster when a work of fanfic becomes the world's number one bestseller and kickstarts a global trend.

As we all know, Fifty Shades of Grey, originated as a piece of fanfic based on the Twilight series. Since it hit 31 million sales in 37 countries worried voices are asking: is this the beginning of an era in which fanfic overthrows original creation?

If one sees fanfic as "the work of amateurs retelling existing stories", then one would have to conclude that the number one book in the middle ages – the Bible – was a work of fanfic, as Matthew, Mark, Luke and John were non-professionals retelling the same story about the same character. However, such a definition of fanfic is skewed historically. There were no fans in the middle ages, and there were also no authors.

If we see fanfic as "the reworking of another author's characters" then this form really only appears for the first time in history with the invention of legal authorship in the 18th century through copyright and intellectual property laws, after the invention of the printing press. After all, you can't have derivative works or copies if there are no regulations over what constitutes original works, or separates ownership from theft.

The first point is a semantic quibble, but it really gets on my nerves. 'Slash' does not refer to all pornographic fanfiction. There may have been a time when it did. Having spent ten years in fandom, I have never heard it used to describe anything but stories about m/m relationships. (A story does not actually have to have sexual content to be considered slash. A story can be slash without so much as a kiss if it involves a male character who is attracted to another male character.)

The most postmodern and aesthetically bankrupt of all fanfic, is when two well-known franchises from the same genre are "crossed over". So you get BattleStar Gallactica, crossed with Star Trek, which results in the story: Star Trek: Way of the Battlestar – author Carson Napier.

One of the problems with this sub-genre is that narratives and character motivations have to be warped to fit convoluted, meaningless mergings.

Fifty Shades is actually a very generic work of Twilight fanfic from amongst tens of thousands already created. It is, in fact, a piece of "AU het slash Twilight fic", and as we've seen, in all slash fic, sex and sexual violence are the predictable components of the genre.

We should not consider EL James an author in the conventional sense for the same reasons that we wouldn't call someone from before the invention of copyright an author. Rather, her books are like medieval lore – in a sense she doesn't own the content.

The only innovation is not in the story itself but in the delivery system that launched it – Amazon KDP. Without Kindle the book(s) would never have escaped the gravitational pull of fanfic sites and would not have been able to earn their author any money. KDP, has become the Enchanted Duplicator that has monetised fanfic and propelled it into the market. The historic difference, the point we have just crossed, is that now, through the mechanism of epub, fanfic is heading towards becoming the cultural dominant.

It is possible that with the enchanted duplication systems of fan-based epub, we might have arrived at a point in history where we've accumulated enough cultural material from the past for fans to remix indefinitely, and as they can now sell this content to each other this becomes a boom industry where none existed before. However, the point where fans become the creators, and a derivative work becomes the new original is also the point at which the culture industries stop needing to create anything new. Fanfic begets fanfic, which then in turn becomes mainstream which then begets further fanfic and so on. When we reach that point our future will not be fifty, but fifty thousand, shades of grey.

Nashville's Craig Carothers is a singer-songwriter whose livelihood depends on concerts and CD sales. Yet sometimes, his biggest fans make that job tougher.

"I've had the experience more than once of having someone come up to me and — completely pure of heart — excitedly tell me they bought copies of my CDs when I was last in town and they enjoyed them so much they made copies for 15 or so of their friends," said Carothers.

There goes the revenue stream.

Virtually every entertainment and media company has been buffeted by the digital revolution, but the music industry was the first to see major economic consequences and a dramatic shift in the buying habits of a new generation. Despite growth in iTunes and other digital sales, many young people continue to see "free" as the appropriate price tag on music.

Noah Webster would not have been amused. Primarily known for his early and influential dictionary, Webster campaigned in the 1780s for copyright laws to protect American authors from theft of their content by printers. The printers of the 1780s were not large corporations. They were small shops that made their living largely by stealing the content of books published in Europe. Webster wanted to make sure his work would not be published without compensation.

Sept. 5 marks the 225th anniversary of the drafting of the Constitution's copyright clause. Advocates argued that ensuring authors were paid would encourage literary arts, lead to a body of truly American literature, unify the nation and demonstrate that the U.S. could be a leader in creativity. This notion of building a haven for creative people was so important that it was ratified as part of the Constitution in 1789, two years before ratification of the First Amendment, which gave us freedom of expression.

In providing a system for manipulating this sort of information, the hope would be to allow a pool of information to develop which could grow and evolve with the organisation and the projects it describes. For this to be possible, the method of storage must not place its own restraints on the information. This is why a "web" of notes with links (like references) between them is far more useful than a fixed hierarchical system. When describing a complex system, many people resort to diagrams with circles and arrows. Circles and arrows leave one free to describe the interrelationships between things in a way that tables, for example, do not. The system we need is like a diagram of circles and arrows, where circles and arrows can stand for anything.

We can call the circles nodes, and the arrows links. Suppose each node is like a small note, summary article, or comment. I'm not over concerned here with whether it has text or graphics or both. Ideally, it represents or describes one particular person or object

"The question has come up whether a guild master of the weaving industry should be allowed to try an innovation in his product. The verdict: 'If a cloth weaver intends to process a piece according to his own invention, he must not set it on the loom, but should obtain permission from the judges of the town to employ the number and length of threads that he desires, after the question has been considered by four of the oldest merchants and four of the oldest weavers of the guild.' One can imagine how many suggestions for change were tolerated.

Shortly after the matter of cloth weaving has been disposed of, the button makers guild raises a cry of outrage; the tailors are beginning to make buttons out of cloth, an unheard-of thing. The government, indignant that an innovation should threaten a settled industry, imposes a fine on the cloth-button makers. But the wardens of the button guild are not yet satisfied. They demand the right to search people's homes and wardrobes and fine and even arrest them on the streets if they are seen wearing these subversive goods."

In 2000, a group of American entrepreneurs moved to a former World War II antiaircraft platform in the North Sea, seven miles off the British coast. There, they launched HavenCo, one of the strangest start-ups in Internet history. A former pirate radio broadcaster, Roy Bates, had occupied the platform in the 1960s, moved his family aboard, and declared it to be the sovereign Principality of Sealand. HavenCo’s founders were opposed to governmental censorship and control of the Internet; by putting computer servers on Sealand, they planned to create a “data haven” for unpopular speech, safely beyond the reach of any other country. This Article tells the full story of Sealand and HavenCo—and examines what they have to tell us about the nature of the rule of law in the age of the Internet.

The story itself is fascinating enough: it includes pirate radio, shotguns, rampant copyright infringement, a Red Bull skateboarding special, perpetual motion machines, and the Montevideo Convention on the Rights and Duties of State. But its implications for the rule of law are even more remarkable. Previous scholars have seen HavenCo as a straightforward challenge to the rule of law: by threatening to undermine national authority, HavenCo was opposed to all law. As the fuller history shows, this story is too simplistic. HavenCo also depended on international law to recognize and protect Sealand, and on Sealand law to protect it from Sealand itself. Where others have seen HavenCo’s failure as the triumph of traditional regulatory authorities over HavenCo, this Article argues that in a very real sense, HavenCo failed not from too much law but from too little. The “law” that was supposed to keep HavenCo safe was law only in a thin, formalistic sense, disconnected from the human institutions that make and enforce law. But without those institutions, law does not work, as HavenCo discovered.

Yes, evil robots. Long-time reader Matt Novak points us to a blog post he wrote last month, showing off some vintage ads from a campaign by musicians against recorded music in movie theatres:

That must be a textbook symptom of technophobia. You should only be warning the public about robot tyrants if you are a) dangerously insane or b) John Connor. Of course, as we now know, synchronized sound massively expanded the film industry, which in turn created countless new opportunities for musicians—while at the same time, closely-related technology advancements were turning the recorded music industry into its own powerhouse. Today's entertainment incumbents have reined it in a little, preferring somewhat-believable lies over utterly fantastic ones, and focusing more on issues of "theft" than a supposed decline in the quality of the experience (they leave the latter up to technicians and weirdos like Prince). And yet there are still striking similarities between their message and the copy that appeared on those 1930s ads:

The time is coming fast when the only living thing around a motion picture house will be the person who sells you your ticket. Everything else will be mechanical. Canned drama, canned music, canned vaudeville. We think the public will tire of mechanical music and will want the real thing. We are not against scientific development of any kind, but it must not come at the expense of art. We are not opposing industrial progress. We are not even opposing mechanical music except where it is used as a profiteering instrument for artistic debasement.

Note the consistent refrain—"we're not opposed to technology and innovation, except that we totally are"—and the characterization of what they do as the entirety of "art". The more things change, the more they stay the same.

(By the way, there are several other amusing ads in the original post, and I strongly recommend checking them out.)

The internet itself would have been in deep trouble, if you'd had this attitude about copyright twenty years ago -- where the very ideas that gave birth to this industry would be at risk.

Every one of the central principles or elements of copyright is one-sided and unbalanced, that is, they favour the owners of copyrighted goods..... The main elements of copyright include the ideology that the world’s knowledge and creations should be owned as private property, that they should be traded as commodities in global capitalist markets, that copyright owners should have exclusive rights, that fair dealing /fair use principles mean what is fair to owners, that creativity will dry up without the incentive of copyright, that there are no alternatives to copyright, that spreading copyright regimes (and the stricter the better) benefits the whole world, and a few other foundational principles and justifications of this Western legal and philosophical export to the global South. Take away these principles and you know longer have copyright. Conversely, accept these principles and you have accepted 98% of the story that WIPO and the US Department of Commerce will be disseminating in Cape Town when their re-scheduled IP summit is held. All that is required, they suggest, is some fine-tuning, a bit of ‘tweaking’ around the edges of the remaining 2%.

If you have an hour or two in the next few days, read through Berne, clause by clause, and keep a running tally of: a) how many rights are guaranteed and mandatory to the users of copyright in every Berne Convention country? ; b) how many rights are guaranteed to the owners of copyright? The answer to question a) is very brief. Other than what is included in Article 10 (1) of Berne, namely, the right to use quotations already available to the public, there is not a single mandatory right that all users in the world possess, and even this narrow right is qualified. This is another reason why some of us believe that not only is the international copyright system grossly unbalanced, but it is also unbalanceable.

To pit the interests and rights of users against those of authors (again used as a term to designate all creators, whether composers, sculptors, or video game developers) is also a serious mistake. It is based on binary formulation which suggests that users of copyrighted materials are not also creators and that creators of copyright materials are not also users. To return to the same sentence quoted in point 3) above, where else do creators get the requisite tools for their work other than from ‘education, research and access to information’?

The question of duration of copyright provides us with one easily-grasped example. The Berne Convention states that member countries must, at a minimum, establish a copyright term of life of the author, plus a minimum of another 50 years. As is sometimes not appreciated, this already is a very long period of time; it means that a pop song written this year by a 25-year-old songwriter could still be restricted by copyright in the year 2112. Yet it is perfectly legal for a country to extend its copyright term to life of the author, plus 100 years, which would restrict the same song until 2152. This is what Mexico has done. Or the copyright term could be raised until it was forever, minus one day. Consider what would have been situation if Egyptian government had gone ahead with its announced plan of 2008 to use copyright law to protect its pyramids as cultural property. The Egyptian term of copyright would then have become life of the author, plus 5000 years. Absurd? Yes. Perfectly legal, however, under the Berne Convention. Conversely, if a country decided to reduce its term to simply life of the author, which would still often leave a term of 30 to 40 years or even longer, such a law could result in that country being expelled from the Berne Union as well as the World Trade Organisation. Moreover, copyright owners might complain future years of royalty payments had been lost due to term reduction and claim their private property had been taken without compensation. Such a circumstance shows the impossibility of balance.

As for the supposed rights which the copyright system gives to musicians in disputes with recording companies, consider what happened to two leading musicians of the past century. If, as already mentioned, Bob Marley (1945-1981), called the ‘Third World’s first pop superstar’ (Wenner), was unable to hold onto the copyright to many of his best known songs, what chance does the so-called average musician have? Or how about what happened to the path-breaking US bebop jazz pianist Thelonius Monk (1917-1982) who signed a long-term recording in 1962 with Columbia Records, a major recording label at the time. When the contract was over in 1970, Monk amazingly owed Columbia more than US$100,000. Copyright did not help Monk much.

Clarification: A number of readers have accurately pointed out that electronic messaging predates V. A. Shiva Ayyadurai’s work in 1978. However, Ayyadurai holds the copyright to the computer program called "email," establishing him as the creator of the “computer program for [an] electronic mail system” with that name, according to the U.S. Copyright Office.

But as this eye-opening article from Benj Edwards explains, bad as that situation is, it's even worse for the entire category of software creations. For example, consider the earlier generation of floppy-based programs:

Floppy disks, which were once used as the medium du jour for personal computers, have a decidedly finite lifespan: estimates for the data retention abilities of a floppy range anywhere from one year to 30 years under optimal conditions.

A floppy stores data in the form of magnetic charges on a specially treated plastic disc. Over time, the charges representing data weaken to the point that floppy drives can’t read them anymore. At that point, the contents of the disk are effectively lost.

This becomes particularly troubling when we consider that publishers began releasing software on floppy disk over 30 years ago. Most of those disks are now unreadable, and the software stored on them has become garbled beyond repair. If you’ve been meaning to back up those old floppies in your attic, I have bad news: it’s probably too late.

Fortunately, getting around such schemes is just the kind of challenge that hackers enjoy, and this has led to efforts by enthusiasts to preserve these fast-disappearing cultural artefacts by transferring them from the old media to more modern storage. As Edwards explains:

For the past decade, collectors and archivists have been compiling vast collections of out-of-print software for vintage machines (think Apple II, Commodore 64, and the like) and trading them through file sharing services and on "abandonware" websites. Through this process, they’ve created an underground software library that, despite its relative newness, feels like the lost archives of an ancient digital civilization.

Nor is this is a problem that only concerns antediluvian forms of computing. Our cool, smartphone- and tablet-based approach is no better:

take a look at the iTunes App Store, a 500,000 app repository of digital culture. It’s controlled by a single company, and when it closes some day (or it stops supporting older apps, like Apple already did with the classic iPod), legal access to those apps will vanish. Purchased apps locked on iDevices will meet their doom when those gadgets stop working, as they are prone to do. Even before then, older apps will fade away as developers decline to pay the $100 a year required to keep their wares listed in the store.

Edwards concludes with a call to action:

If you see strict DRM and copy protection that threatens the preservation of history, fight it: copy the work, keep it safe, and eventually share it so it never disappears.

Some people may think ill of your archival efforts now, but they’re on the wrong side of history: no one living 500 years from now will judge your infringing deeds harshly when they can load up an ancient program and see it for themselves.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Here's why The Pirate Bay thinks Hollywood is exactly like itself:

Because of Edisons patents for the motion pictures it was close to financially impossible to create motion pictures in the North american east coast. The movie studios therefor relocated to California, and founded what we today call Hollywood. The reason was mostly because there was no patent.

There was also no copyright to speak of, so the studios could copy old stories and make movies out of them – like Fantasia, one of Disneys biggest hits ever.

So, the whole basis of this industry, that today is screaming about losing control over immaterial rights, is that they circumvented immaterial rights. They copied (or put in their terminology: "stole") other peoples creative works, without paying for it.

Call it Hollywood 2: The Sequel.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

• 1920’s – the record business complained about radio. The argument was because radio is free, you can’t compete with free. No one was ever going to buy music again.
• 1940’s – movie studios had to divest their distribution channel – they owned over 50% of the movie theaters in the U.S. “It’s all over,” complained the studios. In fact, the number of screens went from 17,000 in 1948 to 38,000 today.
• 1950’s – broadcast television was free; the threat was cable television. Studios argued that their free TV content couldn’t compete with paid.
• 1970’s – Video Cassette Recorders (VCRs) were going to be the end of the movie business. The movie business and its lobbying arm, MPAA, fought it with “end of the world” hyperbole. The reality? After the VCR was introduced, studio revenues took off like a rocket.  With a new channel of distribution, home movie rentals surpassed movie theater tickets.
• 1998 – the MPAA got congress to pass the Digital Millennium Copyright Act (DMCA), making it illegal for you to make a digital copy of a DVD that you actually purchased.
• 2000 – Digital Video Recorders (DVR) like TiVo allowing consumers to skip commercials was going to be the end of the TV business. DVRs reignite interest in TV.
• 2006 - broadcasters sued Cablevision (and lost) to prevent the launch of a cloud-based DVR to its customers.
• Today it’s the Internet that’s going to put the studios out of business. Sound familiar?

The SOPA bill (and DNS blocking) is what happens when someone with the title of anti-piracy or copyright lawyer has greater clout than your head of new technology. SOPA gives corporations unprecedented power to censor almost any site on the Internet. It’s as if someone shoplifts in your store, SOPA allows the government to shut down your store.

History has shown that time and market forces provide equilibrium in balancing interests, whether the new technology is a video recorder, a personal computer, an MP3 player or now the Net. It’s prudent for courts and congress to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude.

What the music and movie industry should be doing in Washington is promoting legislation to adapt copyright law to new technology — and then leading the transition to the new platforms.