As we learned (though were hardly surprised by) this week, the MPAA doesn't take kindly to the suggestion that it should have to consider fair use when sending DMCA notices. The irony of this was not lost on anyone, and indeed both of our most insightful comments of the week came from that post, both of them making the same point. First up, Tim K's opening salvo:
Difficult for MPAA to differentiate between infringing and non-infringing material, but everyone else should still easily be able to know immediately what's infringing.
Interesting. If it's ISPs magically waving away infringement, it's really easy to figure out infringement from non-infringement. If they have to do it, it's too hard.
It's certainly a point that bears repetition. But there's another important point to be made on that same story, in response to the MPAA's claims that they need to send millions of DMCA notices. So our first editor's choice goes to Rikuo for covering that base:
No they don't. There's a myriad of other tactics they can use. There is no requirement that they absolutely, positively have to send DMCA notices.
For our second editor's choice, we head to our post about Eric Holder, who is also making bold statements about intellectual property. This time, it's the idea that piracy funds terrorism, which made a different Eric (I assume) wonder what exactly he's saying:
So if I understand this correctly:
1) Infringement is all over the place, thus making it difficult to monetize content, which leads to the need for these laws
2) Terrorist are able to fund themselves via monetizing this infringing
3) Which leads to the final logic that terrorist are able to monetize content that is available everywhere better than the producers of the content???
On the funny side, we've got a pair of winners from two different posts about major players in the Prenda saga. First up, when we asked whether Paul Duffy's wife admitted that he was engaged in interstate extortion, Arsik Vek anticipated Duffy's response:
Duffy's next comment: "I'm not sure who that woman is. She may or may not be my wife, but I have no direct knowledge of any relationship."
Everyone on the consumer side agrees that they'd like to have à la carte choices from cable companies, but beyond that there's no shortage of debate as to how effective the bill is likely to be and whether the end result would actually be any better for those consumers. The television market is badly distorted at all levels by monopoly interests and those whiffs of not-quite-collusion by groups of companies with a shared interest in maintaining the status quo, but is this bill capable of overcoming that? And is the practice of bundling really at the heart of the problem, or just a good public face for the deeper issues?
This is hardly the first attempt to stop the practice at either the network or cable provider level. Some courts have already found bundling by cable providers to be legal and not anticompetitive; meanwhile Cablevision is currently pursuing an antitrust suit against Viacom for the network's bundling of stations that it sells to providers. Most of the details of the latter are under seal, but one notable point is Viacom's claim that it already offers channels individually, they just cost way more. If that's true of all Viacom's content, then it wouldn't be affected by McCain's bill anyway, which still permits bundling as long as there is an à la carte option.
And even if it's not true, it just underlines the core problem of this approach: the bill doesn't give networks any reason to make individual channels affordable or desirable. They either already offer an expensive à la carte menu that nobody orders from, or they could easily do so. Moreover, it's not as though the justification for bundling offered by the networks is completely falsified: they can spend more money on niche channels and programs by subsidizing them with the revenue from more broadly popular fare. Of course, it's not as though that justification isn't exaggerated and twisted to suit their needs either, nor is it true that the same fundamental idea couldn't exist without bundling. Networks get more value from niche programs than just transmission fees: they care about audience reach, brand-building, competing with other forms of content, accumulating accolades for prestige shows and even, believe it or not, making good television. There's no reason their businesses could not be structured to continue subsidizing niche programming with popular programming in a slightly less direct manner.
So the final solution, as always, needs to be found in the market — and that's already happening. Basically every single noticeable trend in media consumption habits, not just in television but in music and publishing and every format, points towards a more à la carte world. It's not news that the networks and cable providers have dragged their heels on this in the hope of milking their incumbent position a bit longer, nor is it news that they are privately a lot more freaked out by the cord-cutting movement than their public statements admit. Ultimately, it will be consumers making choices that force these companies to either adapt or perish.
But for that to happen, innovators do need to be able to actually give the consumers those choices. If the market has become so badly distorted that innovators are being locked out, then legal action and new laws are needed. And that's why the aspect of the bill that is likely to be the most effective (not to mention the most interesting) is the way it all seems to come back to Aereo.
The fight that Aereo started sits at the core of almost everything in the bill. Network owners don't like Aereo because they don't want to lose their retransmission fees from cable providers. Cable providers don't like Aereo because they don't want to lose the appeal of the major networks which, despite the ascendence of cable channels, still sit at the core of their service bundles — and because, generally, they don't want cord-cutters to have more options. McCain's bill basically says: Aereo or no Aereo, consumers need choices, and they're going to get them, whether you like it or not.
Is it a worthwhile step? Yes — or, at least, it's hard to see how it could do any harm, even if it does prove ineffectual. Is it the best approach? No. It almost feels like a bet on Aereo's failure. If Aereo were permitted to innovate, rather than being forced to jump through endless technological hoops and still spend more time in court than in the workshop or the boardroom, then the market would already be giving consumers what they want and pushing the networks and cable providers to become more competitive. If there is to be legal reform, it shouldn't be another layer of conditions and caveats on broadcast licenses and the retransmission fee structure that attempts to force the hand of the networks and cable companies, it should be a clarification (and probably a relaxation) of the rules, removing the legal and regulatory uncertainty that holds disruptive startups back. Television doesn't need a Consumer Freedom Act — consumers already have lots of freedom, they just don't have many choices in how they exercise it. The heart of McCain's bill is in the right place, but a Television Innovator Freedom Act is what we really need.
In my view, these comments by Sgt. Mullins make him a terrorist. He is advocating a philosophy calculated to terrorize the general citizenry and take away out fundamental rights. Why use bombs when you have the power of the NYPD behind you?
The message shown at around the 10 min, about "You can still watch your cat videos for free" just offends me. The implication there is, that on Youtube, there's only the low-quality no-intelligence-required cat videos. There's not. There's vast swathes of great videos, from reviewers to whole educational lessons.
Look around and check if there are medkits lying around. If there are, try walking over one.
Try yelling "Medic!" or "Excuse me! I'm in need of medical attention!" and see if a doctor wielding a nailgun shows up. If he does, make sure his shirt color matches yours before he applies "treatment".
If your vision is obscured by a pulsing red glow, try waiting it out. The wound will heal itself, unless you take damage from other sources.
/Disclaimer: It's been a while since I needed to treat gunshot wounds, so might knowledge might be a little outdated
(This method is especially effective for self-inflicted rocket wounds.)
As part of our sponsorship program with the Application Developers Alliance, we're highlighting some of the content on DevsBuild.It, their new resource website, that we think will be most interesting to Techdirt readers.
We've talked a lot about the tax on innovation that patent trolls create, which is well-known inside startup circles but often misunderstood by the broader public, thanks to the pro-innovation rhetoric of high-profile trolls like Intellectual Ventures. The conversation is getting more attention lately, especially with the recent news of Senator Schumer's patent reform bill which specifically aims to fight the patent troll problem, and this interview with an anonymous developer from a tech startup offers some perspective from someone who is directly affected by the issue.
"Immigration & Custom's Enforcement (ICE)"
Uh, sorry, but that's not what it stands for.
Industry & Corporate Enforcement.
Please make note of this in the future, for accuracy. ;)
And as long as we're talking about people who seem very confused about the business they are in, we have to mention CBS and its threats to move to cable if Aereo is declared legal. An anonymous commenter took the second most insightful spot by parsing their confusion:
Content paid for by advertisers so let's shrink our audience for our advertisers because we hate that someone is expanding our advertisers' audience, nyah!
Money earned directly from someone watching via antenna: $0
Money earned directly from someone watching via Aereo: $0
Wait...what? So they make the same either way? Oh, they make money off of advertisers buying time on their network. Time becomes more valuable the more people watch it. So...
Number of people watching CBS over the air: X
Number of people watching CBS over the air + over Aereo: >/= X
Wait...what? So more eyeballs? Shouldn't that mean more ad money? Maybe there's a problem determining the ratings?...
OTA ratings: Compiled by Neilson based on a tiny sample group that we pray is representative of the whole.
Aereo ratings: Aereo could technically (and probably does)count EXACTLY how many viewers are watching when/for how long/and from where in the world.
So...in a business of selling eyeballs, Aereo dumps a huge truck load of eyeballs on their doorstep and gets sued over it. On top of this CBS's own eyeball inventory is awfully inaccurate and Aereo's drop has an immaculate inventory sheet attached. And Aereo still get's sued.
And now, on top of everything, CBS is threatening to remove itself from the eyeballs of a bunch of viewers, to prevent the eyeballs of a BUNCH of other viewers from seeing them in a way they don't care for? In a business where eyeballs = money?
This case makes less sense by the minute.
And for our second editor's choice, we head to the latest ramblings of Jaron Lanier, from whence there is one more winning comment to come. JEDIDAH provided some general context to the raging debate by reminding everyone about the dirty truth of old school publishing:
If you know someone that is making a mint as a creator then both of you are very lucky. Most artists never even get accepted by a publisher. If they are lucky enough to get accepted by a publisher, they may never strike it big enough to pay back their advance. Chances are, they will have to do their own marketing as the publisher won't lift a finger for them.
Authors like King and Rowling are lottery winners.
Even seemingly well established authors end up doing their own promotion schlepping to cons of various kinds and making a pittance in the process.
The old system isn't really what it's cracked up to be.
This becomes readily apparent if you actually bother to seek out the talent and listen to them.
Jaron Lanier: Why people should pay more attention to me and not Web 2.0
When I noticed myself getting mean online I thought, “Something has gone terribly wrong.” It was obvious the rest of the ARPAnet had a social problem, not just me being some sort of asshole.
My book You Are Not A Gadget: A Manifesto is ruffling virtual feathers across the ARPAnet. And so it should, because I invented virtual reality. Wikipedia, which is a tissue of lies, says so. Prospect magazine’s Top 100 Public Intellectuals Poll lists me. Also, my hair is much better than yours. And I’m fifty. According to Wikipedia, so I’d better change my birthday.
Today, the web is a bland place. It’s all user-generated content — silly clips on YouTube, spiteful anonymous comments on blogs about my books, endless photographs of people at a bar with their friends or up a mountain with an ironing board. It was much better back in the early days of the ARPAnet, before we let the commercial users on. These words will mostly be read by numb mobs composed of people who are no longer acting as individuals. You know, the peasants. Virtual reality is far more ennobling, but you never hear people talking about that any more.
The ARPAnet only creates banal mashups of old culture. Salvagers picking over a garbage dump. Only the old-world economy of books, films and newspapers creates original content like Lawnmower Man or Battlefield Earth. Everyone knows that real artists have no influences. This stuff the kids are into these days is just noise!
The ARPAnet is also killing music, according to my good friends at the RIAA. Did you know there’s no music in Spain any more? It’s true!
Will we — meaning I — be able to live off our brains in the future, or will we just have to give our creative works away for free? If we can’t live off our brains then we’ll need a form of SOCIALISM just to survive. WIKIPEDIA IS COMMUNISM! Until the Wikipedia Corporation finally builds a good interface, for goggles and power-gloves.
Open source and open content are a cancer. The dogma I object to is composed of a set of interlocking beliefs and doesn’t have a generally accepted overarching name as yet, so I’m going to call it Digital MAOISM, which is COMMUNISM. Update, five years later: Here is a detailed retcon explanation of why I was not just trolling for headlines by calling Wikipedia COMMUNISM, but was speaking precisely and you just weren’t thinking hard enough: [snip 10,000 words]
Also, you should get into virtual reality more.
(You Are Not A Gadget: A Manifesto is published on papyrus scroll and hand-illustrated by monks. You cannot have a copy until you have fought your way up the mountain and proven yourself worthy.)
To be fair to Warner Bros, Netflix's business model of "provide a useful product at a reasonable price" is incredibly harmful to their profits.
For editor's choice on the funny side we remain in Hollywood, this time with the news that Universal responded to a lawsuit about underpayment by saying it actually overpaid. Or, as an anonymous commenter put it:
Universal: We COULD have pulled even more accounting tricks to pay you even less, so we actually overpaid you.
And finally, we return to our post about silly cable threats from CBS. This comment actually got lots of insightful votes and almost no funny ones, and while it is indeed insightful, it also made me laugh the moment I read it, so here it is as the final editor's choice for funny:
Go ahead, CBS. Give the people back its spectrum. That'll teach 'em.
Today, the USTR released its 2013 Special 301 Report (pdf and embedded below), the notorious "watchlist" of foreign countries where intellectual property is supposedly in danger (which is in fact just a self-serving diplomatic pressure tool). Ukraine has been dubbed enemy number one, with Algeria, Argentina, Chile, China, India, Indonesia, Pakistan, Russia, Thailand and Venezuela on the priority watchlist, so expect the diplomatic push for American-style IP laws to intensify in those countries.
One thing to note is the fact that Spain succeeded in staying off the list. As we recently noted, the Spanish government has essentially admitted that its recent copyright reform efforts were designed entirely to keep the country out of the 301 Report. Well, it looks like they got their wish, and all they had to do was sell out their country to US interests. Nobody will be able to say that they sit on a list of dirty thieves alongside backwards pirate nations like Canada and Finland, which brazenly ignore the kind US diplomats who surely have our best interests at heart. Congratulations, Spain!
from the putting-the-cybercart-before-the-horse dept
With CISPA dead (mercifully) from a critical case of Senate disinterest, the conversation has inevitably turned to what the next cybersecurity bill should look like. Over at Wired, Julian Sanchez has laid out some guidelines for a cybersecurity bill that actually works, achieving the stated goals of CISPA without butchering civil liberties. His key point is that, according to CISPA's authors, the bill's sole purpose is to let companies and the government share technical data (or as Dutch Ruppersberger adorably called it last year, "formulas, Xs and Os, the virus code") to help shore up network security and anticipate major attacks — and there's no real reason that has to conflict with privacy at all.
Few object to what technology companies and the government say they want to do in practice: pool data about the activity patterns of hacker-controlled “botnets,” or the digital signatures of new viruses and other malware. This information poses few risks to the privacy of ordinary users. Yet CISPA didn’t authorize only this kind of narrowly limited information sharing. Instead, it gave companies blanket immunity for feeding the government vaguely-defined “threat indicators” — anything from users’ online habits to the contents of private e-mails — creating a broad loophole in all federal and state privacy laws and even in private contracts and user agreements.
There’s no need to share [personally identifiable] data for security purposes anyway: Kevin Mandia, head of the cybersecurity firm Mandiant, insisted at a February hearing on CISPA that in 20 years in the industry, he had “never seen a package of threat intelligence that’s actionable” that included personally identifiable information.
Sanchez suggests some straightforward basic requirements for a cybersecurity bill that might actually get consensus from privacy watchdogs and the broader public: the removal of personal information before data reaches the government, a limited lifespan on the data (CISPA's authors have stated that real-time information sharing to deal with immediate threats is the key point of the bill anyway), and the ability for companies to respect their contracts with customers. As written, CISPA would have exonerated service providers from keeping any promise they made to not share user data. Even a service provider that wanted to offer you the contractual certainty that they would protect your data would have been unable to do so.
The reason for that is a key piece of language that's been drifting around CISPA since the beginning: "notwithstanding any other provision of law." There are lots of bits and pieces to the bill, but that line is the exemption granted to companies that wish to share cyber threat information with the government, and it's incredibly broad, allowing companies to ignore even the contracts they have with their customers.
So why is it there? That's the question nobody seems to want to answer, and that's the real issue with the whole push for cybersecurity legislation. Supposedly, according to the message that has accompanied CISPA and similar bills from the beginning, companies and the government are currently prevented from doing some harmless, common-sense information sharing to improve network security, because existing laws block such sharing. But... what laws? That has never been clear. Why does CISPA need to provide immunity "notwithstanding any other provision of law" rather than simply creating specific exceptions to the specific laws that are causing a problem? Why has nobody in Congress even been able to point out these problematic laws?
Perhaps it's not just one or two laws; perhaps it's a whole cluttered legal framework that can't easily be cleaned up and needs some broad, sweeping exceptions. But... nobody has made that case either. They just keep saying, non-specifically, "existing laws prevent it". And yet we know that's not true, at least to some degree: the FBI has had a system for sharing threat information back and forth with companies for 15 years. Why is that model not sufficient? Again, if there are reasons, nobody in Congress is offering them.
I'd like to say Sanchez's guidelines make an excellent starting point for cybersecurity legislation, but a starting point for legislation has to be a definition of the problem it's trying to solve, and we still don't have that. Nevertheless, they do serve as an excellent set of rules to hold Congress to if it is really so intent on barreling forward blindly. Cybersecurity grandstanders are likely to say that such restrictions would gut the legislation. Whether that's ignorance, cognitive dissonance or a tacit admission of dishonesty I'm not sure, but the restrictions suggested by Sanchez, the EFF, the ACLU and others would do nothing to hinder CISPA's stated and largely innocuous purpose — they would only interfere with the other much scarier potential uses that Congress insists aren't going to happen.
The longer Congress offers only the vaguest of vague definitions of the problem it's trying to solve, while at the same time seeming to betray even that vague definition with its response to suggested safeguards and restrictions, the harder it gets to afford them even one iota of trust on the subject of cybersecurity.
The political debate in Canada is heating up, with the Conservative party recently launching a series of attack ads aimed at the new Liberal party leader, Justin Trudeau. Whatever you think of these kinds of ads — and I am of the mind that it sucks to see them getting more and more popular in Canada, no matter which party is using them — former Liberal leader and current Liberal MP Stéphane Dion has now shown everyone how not to respond to them. In a letter to Canada's election regulators, Dion has presented the incredibly twisted argument that the footage in these ads violates copyright law, which makes it an illegal campaign contribution:
Recently, the CPC used footage owned by the Huffington Post and CTV in a television advertising campaign directed at the Liberal Party of Canada. These advertisements are being aired nationally, including in Labrador where a by-election is currently being held. I understand from media reports that the CPC is using this footage without the copyright holders’ permission and presumably without paying the copyright holders to license the material. I understand that the licensing of copyrighted materials ordinarily comes at a cost.
I am raising my concerns with you because the CPC’s unauthorized use of this material, while inconsistent with our country’s copyright laws, may also be non-compliant with the Canada Elections Act (the “Act”). In my view, the unpaid use of copyrighted material is a “non-monetary contribution” to the CPC, as defined in s.2(1) of the Act.
We've seen lots of people try to use copyright for the sole purpose of shutting down criticism before, but this situation is unique because of just how weird Dion's argument is. He's not actually asking for the Conservative party to be penalized for infringing on copyrights, or for the commercials to be blocked because they are infringing — how could he? He's not the copyright holder. Instead, he's claiming that making unauthorized and also unpaid use of the footage constitutes accepting non-monetary campaign contributions from CTV and the Huffington Post, and is asking for an investigation based on election rules.
Firstly, this just makes the Liberal party look insecure. It's hard to believe there is any real concern about this as a campaign funding issue — it's an attempt to shut up critics, plain and simple. More importantly, commentary and criticism are protected under Canada's fair dealing laws just like they are under America's fair use laws, which rips the foundation right out from under this argument. The Conservatives have every right to use the footage in this way without a license, but Dion's request hinges on the idea that they didn't pay for a license when they should have. Even if that were true, the idea that using something without permission counts as a "contribution" from the rightsholder is bizarre on the surface and likely to baffle most people — even if the definitions in the Elections Act make it at least conceivable that such an argument could prevail. In a battle for the people's approval and support, devious policy tactics don't look any better than aggressive attack ads.
Moreover, what exactly does Dion want here anyway? For Elections Canada to start investigating a civil copyright issue that hasn't even been raised by the people with standing to do so? How would that even work? Without an accusation of copyright infringement from CTV or the Huffington Post, there's no basis on which to investigate this. So far, the only word from the two news organizations has been to confirm that they didn't give permission, and that they have "made our concerns known" — they haven't even actually said they think the use was infringing, let alone brought a lawsuit. And if the Conservatives were sued over copyright, and a court found them guilty of infringement and ordered them to pay, would this still be an illegal campaign contribution? Dion's whole argument is petty at best, and utterly paradoxical at worst.
It was only a short news update, but nevertheless an important milestone: Iceland's supreme court upheld the ruling that ordered Visa to start processing payments for Wikileaks again. In that post, we asked how long it would take for US diplomatic pressure to start changing Iceland's attitude, and Karl's answer became our most insightful comment of the week:
Hopefully long enough such that Wikileaks can recoup its operational costs... and continue practicing the free speech ideals that the U.S. is merely preaching.
I wholeheartedly agree. I made a decision a long time ago to use my mind to its fullest whenever I could. I'm not going to cover my eyes and pretend we don't live in a world where nearly everyone could have access to nearly every bit of culture and every idea for very little cost. We do live in that world now, and thinking anything less is exactly that: stupid.
For the editor's choice comments, we look to the important ruling that came out this week, declaring much of Richard Prince's appropriation art to be fair use. There was a lot of discussion in the comments about whether or not artists should ask for permission to use the work of others, and I wanted to highlight two excellent responses to the question "why not just ask?"
Yes, it really is that hard to ask permission. Creativity is "of the moment" and if you waste time finding the name of the person who did the photo or whatever you're basing your work on, trying to find a phone number or email address or snail mail address to somehow contact them, then asking, then waiting patiently for the person you've asked to eventually get back to you and not bothering to act on your impulse because you might not get permission so it will all be a waste of time, you've lost the creative spark. And anyway, artists, who are usually rebels at heart, have never before had to do this asking permission thing that our current "Mother, May I?" society seems to be moving towards in all of human history, so it does seem to throw a monkey wrench into the machinery to suddenly demand that asking permission must part of the creative process.
Yes, let's look at Weird Al, I do love the guy, but he runs into vexing problems with permission all the time: an artist will suddenly made believe he didn't give permission because of embarrassment (Amish Paradise), or a well-meaning agent or assistant of a famous star tell him he's going to ask and then not bother to ask, then tell him she said "no" (there was a very annoying bit of a brouhaha with a Lady Gaga song where Al released the song without permission and only got permission when she heard it later.) Also, Weird Al is famous and 99.9% of all artists are not famous at all and will get the brush-off and completely ignored from the very first "may I?" on.
Plus, sometimes people who are established believe, true or false, that it is not in their financial interests to encourage very talented people who are NOT established, and established artists refusing to give permission for works that have entered the culture and pinged with talented people is a great way to stagnate your culture. If American artists had refused to let the Beatles creatively work off of American songs, we'd have had no British invasion. Conversely, if the Beatles had refused to let American and other British artists creatively work off of their songs, we'd have had no great music revolution of the 60s. If Paramount had clamped down on the fans who gave conventions and wrote fanfiction in the early 70s (as I'm totally sure they'd have done in today's legalistic climate), there'd have been no great Star Trek cash cow for them to milk to this day. Because nobody asked nobody for permission back then, they just *DID THINGS* and everybody prospered.
So that is what's wrong with getting permission. And if an artist is denied, moving on to something else can be a problem, because sometimes creativity drives itself, and it's going to get expressed one way or another, with or without permission.
There's a long, nuanced and interesting answer to this question. Much of it is contained in the amicus brief attached to the appeal, which is well worth reading.
The short answer is:
a) Artists who do ask are often denied permission. Copyright was never meant to be used as a tool of censorship, or to suppress other, new creativity, but that's what happens.
b) "Steal" is a loaded and inaccurate term. Since the beginning of time artists have used, reused, modified, and built upon one another's work. To use the famous example of Manet's Olympia, the painting could not exist without Titian; Titian in turn "stole" from both Raphael and Raimondi; and Raimondi "stole" from an unknown classical Roman sculptor. That's how creativity works. It cannot function in a vacuum. It cannot thrive in a permissions culture.
Of course, the real question is not why they shouldn't get permission, but why they should. Speech should be as free as possible by default.
On the funny side, we start out with the story of how 1-800-CONTACTS is using the patent system to kill an innovative start up. An anonymous commenter takes first place with a quick quip in response:
You could say that the CEO is being...
For second place, we head back to the Richard Prince ruling, where another anonymous commenter laid down the law:
Artists shouldn't steal from other artists, ever. All artwork should be 100% original, all the time, or else art will surely die.
"But Mr Dent, the plans have been available in the local planning office for the last nine months."
"Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn't exactly gone out of your way to call attention to them, had you? I mean, like actually telling anybody or anything."
"But the plans were on display ..."
"On display? I eventually had to go down to the cellar to find them."
"That's the display department."
"With a flashlight."
"Ah, well the lights had probably gone."
"So had the stairs."
"But look, you found the notice didn't you?"
"Yes," said Arthur, "yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard'."
That's all for this week. See you tomorrow, and until then, don't panic.
Last Saturday, I posted The Copy Culture Cryptic Crossword, just in case there were any cryptic fans in the Techdirt audience. It turns out there are quite a few, including at least one AC who almost solved it in less than 24 hours. All in all it was a great response, and while I can't promise regular cryptics on Techdirt, I will definitely try to put another one together in the not-too-distant future.
But, for now, it's time to reveal the solution to last week's puzzle. The completed grid is below, followed by a list of answers. I've used some basic notation to show how the answers were arrived at wherever it's easy to do so in a self-explanatory way; as for the rest, I'll answer any questions (and accept any criticisms for sloppy clue-writing) in the comments! One reasonable concern was already raised, which is that BMG is not quite a "collection society" by definition, and on that one I offer a mea culpa.
1. Kick start (4) BOOT
3. Right after six, America gets infection (5) VI+R+US
6. With acknowledgements, reveals modification (4) HACK
8. Collaborated on and bragged about bad grade at bad church (12) CROW(D+SOUR+C)ED
Even up here in Toronto, winter is starting to give way to spring. Among other things, that means getting around is becoming a lot easier — and a lot more fun. It's the time of year that cities start to fill up with people on bikes, boards and blades, all of which are things that people keep on tinkering with, coming up with new improvements and twists on old ideas. Whatever your manual wheels of choice, here are three innovative new ideas that could change the way you roll:
Wheels In Your Pocket: The ABGO
Sometimes, circumstances preclude you from bringing your chosen ride along somewhere. It can be downright infuriating, as you realize how woefully slow your legs are without some mechanical assistance. Enter the ABGO, a short-distance quick-fix that fits in your pocket.
I'm sure some people will have the reaction that this is pointless, and ultimately it's hard to pass judgement on something like this without getting to try one out — but as a cyclist, the sight of this immediately spoke to all my memories of crossing a distance without my bike and wanting nothing more than to roll. There have been various attempts at wheeled shoes over the years, but none that are very compelling. If it works even reasonably well (and the video suggests it does once you get the knack of it) it could actually fill a nice little gap: a wheeled device that isn't bulky like a skateboard or hard to get on and off like rollerblades.
Wheels Where You Want Them: The Beercan Board
About 10 years ago, I worked in a skateboard store for a couple of years. I was never very good at the sport itself, but I sure got lots of practice putting them together, and at convincing skeptical parents to stomach the price tag. Two things I noticed about skateboards was that there is very little variety in their configuration, and also that they all break — often quickly. The Beercan Board changes both those things.
It's not the first aluminum longboard, but it's a great design, and its central feature is pretty innovative: sliding mounts for the trucks, so the wheelbase can be easily adjusted. Judging from the video, it looks like it's accomplished with a combination bolt that allows quick changes without removing the whole assembly (and of course without drilling new holes, which is the only option on most boards). Neat.
Wheels That Work Better: Loopwheels
Folding bikes and other compact cycling options have been around for a long time, and they can be excellent for certain uses — but there's just no denying that the riding experience is much more frustrating and tiresome on those little 20" wheels. The Loopwheel is a shot at alleviating that problem.
As the project page admits upfront, this is nothing less than an attempt to reinvent the wheel. Using springs instead of spokes could open up a whole new level of suspension for compact bike designs that aim to keep size, weight, and bits-that-stick-out to a minimum. The creators claim a distinct advantage over suspension forks, the current solution for compact suspension: Loopwheels offer tangential suspension that cushions impacts from all directions. Again, it's hard to say how big the difference is without trying it, but that assertion makes sense based on the design, and in the video the wheels appear to be quite effective. Nothing could make small wheels as luxurious to ride on as big ones, but any innovation that succeeds in making folding bikes more pleasant is bound to be a hit.
That's all for this week's awesome stuff — thanks for coming along for the ride.
It was over a year ago when we last wrote about Richard Prince, the famous appropriation artist who was sued by photographer Patrick Cariou, whose photos Prince had used in various collage paintings. In a very troubling ruling, the judge in that case rejected Prince's fair use defense in a summary judgement, and ordered all 30 relevant works be turned over to Cariou to be sold or destroyed as he saw fit. This was a shock to the art world, where appropriation art has been a popular and highly-respected art form for years, with Prince as one of its best-known practitioners.
Today, we get some good news: the appeals court has overturned the decision (pdf and embedded below) and found 25 of Prince's paintings to be fair use, while sending the other five back to the lower court so the fair use defense can be properly considered rather than summarily dismissed. There are a few oddities in the details, but overall this is a fantastic ruling that includes some excellent language about fair use.
One of the most disturbing parts about the earlier ruling was that the lower court completely dropped the ball on its interpretation of fair use, incorrectly stating that in order to qualify for fair use, a new work must be commenting on or criticizing the original work. That's plainly wrong, and the appeals judge set the matter straight:
The district court imposed a requirement that, to qualify for a fair use defense, a secondary use must “comment on, relate to the historical context of, or critically refer back to the original works.” Cariou, 784 F. Supp. 2d at 348. Certainly, many types of fair use, such as satire and parody, invariably comment on an original work and/or on popular culture. For example, the rap group 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” “was clearly intended to ridicule the white-bread original.” Campbell, 510 U.S. at 582 (quotation marks omitted). Much of Andy Warhol’s work, including work incorporating appropriated images of Campbell’s soup cans or of Marilyn Monroe, comments on consumer culture and explores the relationship between celebrity culture and advertising. As even Cariou concedes, however, the district court’s legal premise was not correct. The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute. Id. at 577; Harper & Row, 471 U.S. at 561. Instead, as the Supreme Court as well as decisions from our court have emphasized, to qualify as a fair use, a new work generally must alter the original with “new expression, meaning, or message.”
Of course, even this judge seems to have a few facts muddled, considering "parody and satire" cannot be casually linked together like that in the context of U.S. copyright law — one is a well-established and codified form of fair use, the other enjoys no such protection. In fact, the initial court's talk of comment and criticism seems to have stemmed from confusion between the standards for fair use in general, and the standards for parody specifically (where commenting on the original is indeed a requirement).
There's more good stuff about fair use, including lots of citations, to be found in the ruling, which should be read by anyone who still claims that copyright is a natural right or that stronger copyright always means more creativity:
The purpose of the copyright law is “[t]o promote the Progress of Science and useful Arts” U.S. Const., Art. I, § 8, cl. 8. As Judge Pierre Leval of this court has explained, “[t]he copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1107 (1990) (hereinafter “Leval”). Fair use is “necessary to fulfill [that] very purpose.” Campbell, 510 U.S. at 575. Because “‘excessively broad protection would stifle, rather than advance, the law’s objective,’”
The “ultimate test of fair use ... is whether the copyright law’s goal of ‘promoting the Progress of Science and useful Arts’ ... would be better served by allowing the use than by preventing it.” Castle Rock, 150 F.3d at 141
Since the court goes through a full fair use analysis, there's lots of good stuff on issues other than the transformative one too. The ruling clarifies that neither the "commercial use" aspect nor the "amount of work copied" aspect of fair use is determinative, and explains why Prince's work qualifies for fair use even though it is commercial and often uses Cariou's photos in their entirety.
But there's still a somewhat problematic side to this ruling, and that's the aforementioned distinction of five works from the rest. It brings us back to a problem we talked about a lot last year when this case was in the courts: judges playing art critic. The fact that fair use is so vague means that, every time it's tested, it starts to turn into an argument about whether a piece of art is "good" or "worthwhile" — a subjective standard if there ever was one. Among the five that have been sent back to the lower court is the most famous of them all (Cariou original on the left, Prince work on the right):
The ruling draws a distinction between that and one of the other works that it declared to be fair use (again Cariou left, Prince right):
In that comparison, it's not hard to see how the latter example changes the original "more" than the former. But that's where the obviousness ends. The true challenge is drawing that line, which the appeals court was not prepared to do:
As indicated above, there are five artworks that, upon our review, present closer questions. Specifically, Graduation, Meditation, Canal Zone (2008), Canal Zone (2007), and Charlie Company do not sufficiently differ from the photographs of Cariou’s that they incorporate for us confidently to make a determination about their transformative nature as a matter of law. Although the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou’s classical portraiture and landscape photos, we can not say with certainty at this point whether those artworks present a “new expression, meaning, or message.”
The problem is that I don't think anyone can say with "certainty" what the meaning of a piece of art is, and that includes the artist themselves. In some cases, it seems like the most sensible approach would be to rely on experts — in this case the many galleries around the world that have showcased Prince's art, and the many critics who have praised it (or, for that matter, condemned it — a new meaning doesn't have to be something people like). Of course, there are potential problems there, too: many an important art movement was rejected by the established community at its outset.
Overall, the most important part of this ruling is that it overturns the ridiculous assertion that comment and criticism is the only form of fair use — but other than that, it fails to provide much clarity. I'm not certain any court could. There's no way to guess what the lower court will decide once it goes through the fair use test with the remaining five works, to the point that the question is almost entirely a matter of opinion, and it's not hard to envision a ruling in either direction. Whenever you have that much uncertainty on a point of law, something needs to be fixed.
McClintock (CBS' exec VP of communications) sure doesn't mince words, but he does mince reality. The broadcasters are not faring well against Aereo, with the courts all apparently recognizing that the company has carefully followed the letter of the law established in the Cablevision ruling. It's bizarre that he would try to characterize the situation as an obvious win for CBS when the exact opposite is true — especially in a conversation with tech analysts and journalists. Still, points for confidence, I guess.
It didn't end there, either:
After [Verge editor Ben] Popper noted that CBS' signals were not being stolen and that the public owned the airwaves, McClintock responded: "Yet it's ok for Aereo to profit from the same public. Hmmm..."
Greenfield got in a zinger by noting the similarities between Aereo and Amazon's services. "Amazon 'makes money'" Greenfield wrote on Twitter, "on selling antennas to watch broadcast TV, and they ship to Boston."
The question of "profiting from the public" is a red herring, and not a smart one for CBS to bring up. After all, the networks profit from their public broadcasts, too. Do they plan to give back all the money they have made from selling ads on the publicly-owned airwaves for which they paid no access fee?
The fact that the airwaves are owned by the public only means what it sounds like. It means the ability to broadcast on the airwaves is permitted by the public — it does not have anything to do with how the public accesses those airwaves, or whether or not someone is making a profit. As Greenfield points out, by McClintock's logic, it would be wrong to charge money for a TV antenna.
The Twitter exchange perfectly highlights a key issue here: thanks to the vagaries of copyright law, the whole fight over Aereo (and over remote DVR) is basically a fight about the length of a wire. Selling a home TV antenna? Legal. Renting a home TV antenna to someone? Yup. Selling someone a setup that hooks their antenna into a computer and then into their network, so they can watch it on any of their devices? No problem. Renting that same setup to them? Sure thing.
But doing any of that from slightly further away? 'Illegal!' cry the networks.
Luckily, despite the networks' facade of confidence and silly threats to pull their broadcasts, the courts seem to be well aware of the ridiculousness of their argument. Given the recent rulings, it seems unlikely that a new lawsuit in Boston would gain much traction — but, of course, just the fact that the lawsuits keep on coming serves as a roadblock to Aereo's innovation. The broken analogies enforced by copyright law have resulted in an insane situation with online streaming (among other things), and the fact that the fight with Aereo has even gone this far (and shows no signs of stopping) just underscores the severity of the problem.
In a press release issued today, Rep. Bob Goodlatte made a call for comprehensive copyright reform and announced series of hearings on copyright before the House Judiciary Committee. Of course, this isn't the first indication that Congress is interested in copyright reform — they heard Maria Pallante's testimony, which addressed many of the key issues involved, and was a mixed bag of good and bad ideas.
One thing the two have in common is a lack of specificity. Goodlatte is a friend of Hollywood and played a big role in SOPA during its conception, so it's pretty much guaranteed that a lot of his ideas for reform won't be the kind of reform we actually need — but for now, he's avoiding saying much. Most of the press release is dedicated to discussing the history of copyright reform and attempting to establish his own credentials. Only one paragraph offers any suggestion as to what Goodlatte thinks copyright reform might consist of:
There is little doubt that our copyright system faces new challenges today. The Internet has enabled copyright owners to make available their works to consumers around the world, but has also enabled others to do so without any compensation for copyright owners. Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate. There are concerns about statutory license and damage mechanisms. Federal judges are forced to make decisions using laws that are difficult to apply today. Even the Copyright Office itself faces challenges in meeting the growing needs of its customers – the American public.
Well, right off the bat we have concerns about piracy (while avoiding using the word), so we know where his priorities are. The rest of the things he lists — orphaned works, compulsory licenses and royalty rates, statutory damages, unclear legal definitions — are indeed some of the key parts of copyright law that need fixing, but that doesn't mean he has the right ideas about how to fix them. When it comes to things like statutory royalties and damages, both sides often think they are broken — the question is whether they are too high or too low. When it comes to clearing up legal definitions of things like fair use and contributory infringement, one small detail could swing the needle wildly in either direction.
Maybe it's a good thing that Goodlatte is avoiding getting into specifics, and instead launching hearings — but based on his past opinions and some of the implications of the press release, there's plenty of reason to wonder just how open and balanced these hearings will be. Will they include representatives of the public, or just industry lobbyists like so many copyright discussions in the past? And will they be seeking to reform copyright in a way that benefits the public, as it is supposed to, or just trying to "stop piracy"?
Goodlatte has surprised us a little bit in the past. Here's hoping he surprises us again — but I'm not holding my breath.
A little over a year ago we wrote about Finland's new Citizen's Initiative act, which requires parliament to process any bills proposed by the public if they get 50,000 signatures of support, and the Open Ministry website built to make the process easier. Then, earlier this year, we noted that one of the bills gaining steam on the platform was a call for new crowdsourced copyright laws.
The proposal addresses this concern by making small scale piracy a fine, at maximum, rather than its current maximum of two years in jail. By moving down the maximum penalty, the Finnish police would be more limited in their investigation methods - they won't be able to spy on citizens online, or confiscate property.
The remaining main points in the proposal include allowing fair use of copyrighted material for teaching and research, and adds fair use rights for parody and satire, which is unclear in the current legislation.
Artists' rights would also be strengthened, allowing artists to license their works through open licenses. Additionally, if a fan of an artist is being proscecuted, then the artist will have the ability to tell their representative organization to stop suing on behalf of their content.
Many decisions involving copyright in Finland are discussed and decided within a Copright Council, which includes representatives from the old media industries, such as the TV and recording industries. The proposal would also add internet operators, software, and gaming industries into that mix, as the scope of copyright expanding all the time.
Also, the proposal would clear up the language when it comes to personal video recording systems, which will assist startups, like BooxTV, working in this field, and perhaps allow for new innovations in this area.
It's fantastic to see the SOPA-style blackout tactic being employed proactively, to push for positive reform, rather than just as a defensive play against copyright maximalists. While a localized blackout is never going to have the impact of something as widespread as the SOPA protests given the global nature of the internet, here's hoping it gains enough traction to put these much-needed ideas about copyright in front of the Finnish parliament.
The last big news in the ongoing fight between Universal Music Group and Grooveshark (and its parent company Escape Media) came back in July, when a New York court rejected UMG's argument that the DMCA's safe harbors didn't apply to pre-1972 sound recordings, because, technically, those recordings are not covered by federal copyright law. This was in keeping with the ruling in the fight between EMI and MP3Tunes, and seemed most consistent with the intent of DMCA safe harbors.
Naturally, UMG appealed, and in doing so made some compelling arguments about the wording of the law. The appellate court agreed, and has now issued pretty much the opposite decision: pre-1972 sound recordings are not covered by the DMCA (pdf and embedded below) and thus Grooveshark has no DMCA safe harbors for such songs.
There are a few different parts to the ruling, but the core argument is straightforward: section 301(c) of the Copyright Act explicitly states that no "rights or remedies" under common law copyright on pre-1972 recordings shall be "annulled or limited" until 2067, and it's pretty hard to argue that the DMCA doesn't do that:
Initially, it is clear to us that the DMCA, if interpreted
in the manner favored by defendant, would directly violate
section 301(c) of the Copyright Act. Had the DMCA never been
enacted, there would be no question that UMG could sue defendant
in New York state courts to enforce its copyright in the pre-1972
recordings, as soon as it learned that one of the recordings had
been posted on Grooveshark. However, were the DMCA to apply as
defendant believes, that right to immediately commence an action
would be eliminated. Indeed, the only remedy available to UMG
would be service of a takedown notice on defendant. This is, at
best, a limitation on UMG’s rights, and an implicit modification
of the plain language of section 301(c). The word “limit” in
301(c) is unqualified, so defendant’s argument that the DMCA does
not contradict that section because UMG still retains the right
to exploit its copyrights, to license them and to create
derivative works, is without merit. Any material limitation,
especially the elimination of the right to assert a common-law
infringement claim, is violative of section 301(c) of the
For defendant to prevail, we would have to conclude that
Congress intended to modify section 301(c) when it enacted the
DMCA. However, applying the rules of construction set forth
above, there is no reason to conclude that Congress recognized a
limitation on common-law copyrights posed by the DMCA but
intended to implicitly dilute section 301(c) nonetheless.
Under such circumstances, it would be far more
appropriate for Congress, if necessary, to amend the DMCA to
clarify its intent, than for this Court to do so by fiat.
Take note of that last bit, because this ruling has made it more true than ever. And that's where the problems come in. It seems pretty clear that there is some sloppy drafting in how the DMCA is written (which isn't a surprise), in that what you have is wording that can be read this way, even though it clearly goes against the intent and purpose of the DMCA. If the DMCA's safe harbors don't apply to pre-1972 recordings, then the DMCA's safe harbors no longer apply at all to any service that includes music. That can't be what Congress intended, even if the wording of the law can be read that way.
Thus, if you go strictly by the wording, while ignoring the intent, the logic of the decision is sound, but the implications are disturbing: as Grooveshark pointed out in their defense, this interpretation would gut the DMCA. One of the key purposes of safe harbors was to prevent online services from needing to proactively scan for infringing works, since that would drastically and unfairly limit their growth, and we wouldn't have things like YouTube today if that were the case. But if pre-1972 recordings (which is plenty of material) are not included, then user-generated content sites do have to scan everything. And while it might be somewhat easier to identify pre-1972 recordings than it is to identify infringing uploads, it would still be insanely prohibitive — not to mention the massive loss to our culture from having a huge chunk of music history mostly vanish from the internet.
It's a little unclear just how far-reaching this ruling will be (it's at the state level, and it is in itself explicitly contradicting the earlier MP3Tunes ruling, which it declares to be "wrongly decided") but the potential implications are huge. Exempting all pre-1972 recordings from the DMCA would impact all corners of the internet in a bad, bad way. The only optimistic thought is that perhaps it would force congress to revisit the law, and we could finally push for a Digital Millennium Copyright Act that actually works in the digital millennium.
from the or:-how-to-build-an-intellectual-cage dept
Here are two words that have no business hanging out together: "used MP3s." If you know anything about how computers work, that concept is intellectually offensive. Same goes for "ebook lending", "digital rental" and a host of other terms that have emerged from the content industries' desperate scramble to do the impossible: adapt without changing.
These concepts are all completely imaginary, and yet we treat them as if they are real, and have serious discussions about every last detail of how they function — like a debate about the best mutant superpower, but with multimillion dollar lawsuits. Copyright necessitates that we all pretend we don't know any better. It makes us act stupid.
Take "used MP3s" for example. The idea is instantly nonsensical, and proposing it seems on par with asking how all those people fit inside the television. A "used MP3" is indistinguishable from a "new" one, and on the internet there's no such thing as an individual, discrete copy of an MP3 that gets "moved" from one person to another anyway. Speaking even more broadly, a "file" is not a "thing" at all — it's a concept that we use to help organize and visualize the even more abstract concept of "information" in many different places and states, whether magnetically inscribed on a hard disk platter or being transmitted via radio waves (not to mention the internal operation of a computer, where pieces of the information are shunted around between multiple different components and caches).
A "file" is an analogy, and like all analogies, it's incomplete. It breaks down when taken too far, and then it must be discarded, because analogies only exist for our convenience. "Moving" a file is also an analogy — in reality, we are copying it and then deleting the original. Even deleting a file is usually an analogy — the data is still recoverable, the computer has just been instructed to pretend it's not there anymore.
The purpose of these analogies is not to impose limitations on reality. We don't give up the ability to copy a file because we simulated the ability to move it. We don't have to pretend information degrades like physical objects just because we chose to conceptualize it that way. If we want to describe something as "the size of 10 football fields", we don't demand there be gridiron lines painted on it. There's a reason that stubbornly sticking with analogies is referred to as torture, and every discussion about "used files" or the difference between moving and copying is another turn of the screw.
Because of copyright, we are constantly asked to pretend that these analogies are binding. When we "lend" a Kindle ebook, we must pretend that we gave a thing away and don't have it for a while, when in fact our device is just refusing to let us access it. When a library wants to lend out ebooks, they must pretend they have a "limited number of copies available." When we buy software with an activation code, we must pretend that we "only bought one" and thus can only have it in one place at a time. When we rent a digital movie, we must pretend that we "have to give it back". We have to pretend we're stupid and that our devices have limitations which don't actually exist.
But here's the real kicker: the moment there might be any benefit to the consumer, the content companies toss the analogy out the window, and suddenly want to talk about reality. Thus you get things like ReDigi, the would-be used MP3 market that recently lost in court. ReDigi attempted to make MP3s simulate discrete items by enforcing the analogy of "moving a file" using a monitoring system, such that when you sold an MP3 to someone, it would make sure you deleted your own copy. Though we always suspected it was doomed, it was at least rather fascinating from a legal and policy perspective, potentially creating a clash between copyright and first sale rights. After all, if we are expected to treat digital files like physical property, we should at least be getting the rights that come with that.
But this time the record labels wanted to focus on the fact that there's no such thing as moving a file, and pointed out that ReDigi involved making copies whether or not it also involved deleting other copies — and the judge agreed. This is actually correct, technically and realistically — just don't tell them that next time, when it doesn't benefit them and they're back to calling infringement theft. As if to underline their masterful doublethink when it comes to the nature of property, the labels are all about having their cake and eating it too.
ReDigi is hardly the only example. We've written before about the insane situation with TV and movie streaming, where companies do things like set up a warehouse full of separate DVD players that stream from individual discs, or install a separate TV antenna on the same rooftop for every customer who wants an online stream. They are forced to willfully ignore technological capabilities, engineering principles and simple common sense just to conform to all these broken analogies — and they still face massive opposition from content owners and broadcasters every step of the way.
The real issue, when you get down to it, is that copyright itself is imaginary. A "song" or a "novel" is just as analogical as a "file". Originally, copyright law was very concerned with separating the expression of an idea from the idea itself, and in theory that's still the case, but in practice the line has proven almost impossible to draw. So first we conceptualize an abstract thing like "content" as discrete pieces, then we conceptualize all the abstract rights associated with those pieces, and then we conceptualize the discrete units of distribution and ownership within those rights.
These are all imaginary concepts, built on top of other imaginary concepts, built on top of still more imaginary concepts. It's turtles all the way down.
This does not necessarily mean that there's no place for copyright in the world. But in order for it to function, we have to remember that it's an analogy — it's something chosen and used to achieve a purpose, not something that binds and shapes reality, or that we must conform to at the expense of our better judgement. Originally, copyright was just that: a choice by society to employ the analogies of ownership and property in limited, specially-tailored ways in order to achieve a desired result — a flourishing intellectual and artistic economy. Today, copyright is worlds away from what it was then, and it does more to hinder that goal than help it... but many people seem to have forgotten that it's a just a tool, and we can always put it down.
In all the discussion about the various reasons people give for violating copyright, I think there's one that goes unmentioned: a lot of people just refuse to pretend to be stupid.
Apparently, this is the infringing post: http://googlesystem.blogspot.com/2008/02/lyrics-for-youtube-music-videos.html (Google Cache). It's a post about a Greasemonkey script that allowed you to show music lyrics in the YouTube interface.
I've managed to find the DMCA notice: "The URL listed below is one of nearly 20 song lyrics sites who have attempted to post lyrics for the song titled 'Alden Howell' by the artist Inspection 12. The lyrics posted on this and other sites are not accurate and the artist has not given them permission to post lyrical content. Inspection 12 has been making efforts to contact these websites directly in order to have the content removed. We are attempting to have this URL and others like it to be excluded from google search results for the name 'Alden Howell'."
Unfortunately for Inspection 12, that blog post doesn't include their lyrics. In fact, it only includes a screenshot with lyrics from a much more popular punk band. Inspection 12 has never contacted me and no post from this blog mentions 'Alden Howell' (except for this post, obviously).
As Tim Cushing wrote in a recent headline, "in the long history of specious DMCA claims, this is definitely one of them." Chitu, unlike many people who are rightfully too intimidated by potential liability, filed a counternotice... and it was rejected.
So we've got an obviously non-infringing post that has been wiped off the web and, at the time of writing, is still gone. That's not okay, and it's time to ask how it happened. There's no shortage of reasons.
From time to time, the Search team may receive copyright removal requests for search results that link to other Google products like Blogger or YouTube. In these cases, we forward these requests to the appropriate teams to evaluate the allegedly infringing material.
Actually, maybe "process" is too generous. If they "evaluate" the requests (twice, apparently—once at Search and then again at Blogger), surely they would filter out a takedown like this one that doesn't even pass the laugh test. And not only did these two evaluations fail to catch it, the review they supposedly conducted after receiving a counternotice still didn't catch the error. Given the nature of the law and the requirements it places on Google, all of this is somewhat understandable, and would be somewhat excusable but for one thing: Google's terrible customer service. Blanket, form-letter rejections that ignore all reason and logic, sent by a faceless monolith, are among the most infuriating things a customer can receive. Good luck getting actual help with a human being.
But the buck hardly stops at Google. It doesn't even really land there. After all, why did Inspection 12 file this takedown in the first place? Chitu asked them just that:
I've contacted Inspection 12 and they say "that must have been submitted in error. not fully understanding the DMCA notice. our intent wasn't to post on a blog or complaints about a blog. it was to submit a complaint to google about websites that are posting lyrical content that is falsely described as Inspection 12 lyrics in order to sell ringtones."
That's a lot better than some of the furious missives we've seen in the past when copyright holders have been called on their shenanigans, but there are still some big problems. If you're "not fully understanding the DMCA notice," then you are not allowed to file it. How can you sign your name to say you have a "good faith belief" in something if you knowingly don't understand what it means? Inspection 12 is clearly guilty of abusing the DMCA process. But one thing they're probably not guilty of is perjury.
And that brings us to the final problem, where the buck really does stop: the DMCA itself. As we've discussed before, the prescribed text of a DMCA takedown notice employs some clever wording to imply (intentionally or otherwise) that it's more strict on the rightsholder than it actually is. The "under penalty of perjury" language is surgically separated from the bulk of the notice—it applies only to the statement that you are the copyright holder or an authorized agent of the copyright holder. As for the statement that the material you are targeting is in fact infringing, that's just made under a good faith belief. That is a much lower bar, and while it's not great to stand in court and have it demonstrated that you asserted a good faith belief when there was none, it's hardly a clear-cut and substantial safeguard against abuse the way "penalty of perjury" is.
So let's be clear on this: the DMCA is harsh on anyone messing with copyright holders by incorrectly claiming rights they don't own, but lenient on copyright holders abusing the public.
Nobody is blame-free here, except Chitu and his blog. Google needs to handle these requests better, and Inspection 12 should never have sent that notice (nor should they be wasting their time on a DMCA campaign against lyric websites in the first place). But the real culprit is the DMCA itself, which is constantly pushing companies like Google in this regrettable direction, and makes it all too easy for rightsholders like Inspection 12 to abuse the law. Until we get a system that holds both sides of the equation to the same standard, and until copyright holders demonstrate that they can use the takedown system judiciously and responsibly, all their protestations about online services not doing enough to fight infringement will fall on deaf ears (or be drowned out by laughter).
Google really screwed up when its Street View cars accidentally collected data from open wi-fi networks around the world, and it's a good thing that the practice came to light and people called them on it—but that's where the good sense of the situation seems to end. It's really important to keep some perspective here: Google collected open wi-fi data and didn't do anything with it. In terms of potential breaches of privacy permitted by the user's own lax security, I'd say the "victims" got off easy in this case. But from the way lots of politicians and news outlets tell the story, you'd never know it.
Though Google has mostly wrapped up the issue in the US, it is still dealing with the governments in other countries, and the latest news is that it has been fined €145,000 in Germany. Since that's pocket change to Google, frustrated regulators are calling for bigger weapons with which to slay the giant:
The country's data chief called it "one of the biggest known data protection violations in history".
But the regulator admitted the amount was "totally inadequate" as a deterrent to the company.
Under European regulations, the maximum fine for an accidental violation is 150,000 euros - but data protection supervisor Johannes Caspar called for that amount to be increased in future.
In a statement, the regulators said: "Among the information gathered in the drive-bys were significant amounts of personal data of varying quality. For example, emails, passwords, photos and chat protocols were collected."
Like so much of the response to the situation, a lot of this is political grandstanding spread by media outlets that are perfectly willing to make people paranoid about Google. Scrutinizing Google's privacy practices is definitely a good thing—this is a company a lot of people trust with a lot of data—and when they screw up, as they did here, they should face the consequences. But assuming they have villainous intentions in everything they do is foolish, and misrepresenting what happened here is wrong.
For starters, people love to list off the things Google collected—emails and passwords and the like—to imply that this was some sort of organized spying scheme. What they leave out is that the Street View cars were just arbitrarily recording bits of data they picked up from the open wi-fi networks, and while it certainly did include sensitive bits and bytes, there was no system or plan for actually looking through the contents of this data or making use of it. You might as well say the garbagemen have been collecting financial and government information, since there are plenty of sensitive documents in the trash.
Note the careful choice of words in calling this "one of the biggest known data protection violations in history." Maybe it is the biggest, in terms of sheer scale, but it earns no further superlatives. It's not the worst, nor the most damaging, nor the most secretive, nor even the most technologically advanced. Just the "biggest" in the most technical sense, which doesn't really mean much at all.
Then there's this idea that the fine is inadequate to deter Google. While any law based around fines is going to face the potential problem of rich people ignoring it, things are once again being blown out of proportion here. The regulators want to tell the story of the big, bad, deep-pocketed company that can defy the law with impunity, so that they can level bigger fines with more impressive headline dollar figures in the future—but that leaves out any discussion of whether the fine itself is appropriate. You can't tailor a fine to the richest potential violator of a law... What if it had been a small German startup hoping to create a local competitor to Street View that had made this mistake? Would privacy regulators still be calling for higher fines? For that matter, would they have pursued it at all, or just told them to knock it off?
Conversely, if Google or another company had actually made use of all that sensitive data—if they had read people's emails, or stolen anyone's credit card info ,or even made a text-file list of logins and passwords that was clearly intentional—then there would be other things to go after them for. You can bet they'd be facing big lawsuits and much more serious charges if there was even a hint of genuine fraud or hacking—but despite the best efforts of investigators in several countries, no such hint has been found. Google is facing a limited fine for the limited charge of collecting data because that's all it did. And let's still not forget that this was data on open wi-fi networks—no more secure than a CB radio, despite the tech-mystique that may surround it.
So let's keep holding Google to the highest standards of privacy, but let's not turn it into a witch-hunt. Accusing them of flagrant data-theft for what was in fact a technical oversight is bad for everyone. Apart from the fact that disinformation is always bad, placing all the blame on Google means failing to teach people about the nature of open wi-fi, meaning many of them are probably still leaving their data out there for anyone to see. And if nothing else, we certainly don't want to provoke that "well, if they're going to say we did it anyway...." mentality in Google.
In second place, we've got a big long comment from our post about YouTube's victory over Viacom. It includes two levels of blockquotes, and a bit of context: one of our regular critics was harping on his tired old line about Mike not answering questions, which involved quoting a previous comment from Mike (the first, double-nested chunk below) and then responding (the second, single-nested chunk below), which is then quoted by our winning commenter (cpt kangarooski) while responding to the critic. Got that? Here it is:
I think that the current system is broken and does not promote the progress, as it should do. I think that I don't know what the *proper* solution is, and I don't think anyone does, because we simply don't have enough data or experience to know. We know what doesn't work, but we don't know what might work better. That's why I've always encouraged more exploration and the ability to experiment.
Hmm, well, we seem to be staggering along in the real world, meaning people getting income for their work and some protection from piratage, even without the clear and precise perfect solution that academic Mike is holding out for. -- At best, Mike sez he "dunno", a characteristic answer.
At worst, what Mike means by "more exploration and the ability to experiment", can ONLY be in the way of more and more piracy, as it's certain he's not for more legal protections.
Well, I can't speak for Mike, but I think you've seriously misinterpreted what he said. As I read it, Mike is saying that the current copyright laws are not fulfilling their purpose, or at least are not doing a good job of it, and should be replaced by some other laws which would do a better job. But he's not sure what those laws should be, specifically, and sees a need to conduct legal and economic experiments with the aim of finding laws that work better than what's on the books now.
Unless you think that our current copyright laws are absolutely perfect in every way, and that not one word, nor letter, nor even punctuation mark should be changed, you'd have to agree that it would be good to have better laws. And the scientific method works pretty well for finding things out and could be applied here. (Indeed, it is often said that the unusual US political and legal systems, with fifty partially autonomous states and a limited federal government allows each state to function as a laboratory, doing roughly its own thing, while both happily copying good ideas from other states, and allowing other states to copy from it, that our more perfect union might ever improve.)
Some rational analysis of copyright has been done, such as the well known paper by Rufus Pollock. Maybe he did a good job and maybe not (the math is over my head), but it can't hurt to have more research done, and then to try things and see how they work. If we make a mistake, we can always go back.
And while again, I can only speak for myself, I'd happily endorse a copyright regime in which protections were greater than what we have now, if it were shown to be more in the public interest. My gut feeling is that less copyright (although not no copyright), in both duration and scope, would be better, but I'd rather have serious analyses to lead the way than rely on instinct. If you've got something, by all means share it. But if you think the law is not totally perfect now, I urge you to stand with Mike (at least, as I understand him) and support experimentation, whichever way it may take us. To do otherwise is to be afraid that the truth may not correspond with your bias, and that's a shitty way to behave.
Mike refuses to acknowledge the moral basis of copyright.
There is no moral basis of copyright. Copyright is utilitarian. It exists because it's useful, and should be tailored to maximize its usefulness. People don't own things in any meaningful way (i.e. where the thing is being contested) unless they can overpower their opponents or can convince their opponents to cede their claim. Merely creating something is no grounds for owning it. (Although I suppose if you we're a gifted orator you could use that as an argument to convince your opponents to cede their claim, but that still wouldn't make it true.)
For editor's choice, we'll start with another excellent response that demolishes some old but oft-repeated arguments, this time from Karl and appearing all the way back on last week's favorites post. On the question of copyright's origins and purposes, Karl brings the citations:
a key sentence stating that copyright is based on common law, not on statutory (state-granted) monopoly.
That's not what the sentence said, because if it did say that, it would be wrong. The very first Supreme Court copyright case said - explicitly - that copyright is not based on common law. (Quote is below).
In fact, what the author was saying is that sound recording "pirates" had to be fought without using copyright law at all, but using statutory "unfair competition" laws that were not like copyright laws. It is the exact opposite of what you claimed.
As I've written before and will again, copyright merely recognizes the natural rights of a creator to control copies of a work, and what rights others have in the work are distant secondary.
And every time you've written that, you've been entirely, 100% wrong. Copyright is not a common-law right; it is not a natural right; it is not designed to reward the fruits of authors' labors; the rights of the author are secondary to the rights of the public.
Congress and the Supreme Court have repeatedly made this very, very clear:
That an author at common law has a property in his manuscript, and may obtain redress against anyone who deprives him of it or by obtaining a copy endeavors to realize a profit by its publication cannot be doubted, but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work after the author shall have published it to the world.
The argument that a literary man is as much entitled to the product of his labor as any other member of society cannot be controverted. And the answer is that he realizes this product in the sale of his works when first published.[...]
Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it.
- Wheaton v. Peters
The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights, but upon the ground that the welfare of the public will be served and progress of science and useful arts will [be] promoted by securing to authors for limited periods the exclusive rights to their writings. The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors.
- House Report on the Copyright Act of 1909
The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.
- Fox Film Corp. v. Doyal
The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.
- U.S. v. Paramount
The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts."
- Feist v. Rural
The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an "author's" creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.
- Twentieth Century Music Corp. v. Aiken
The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved.
- Sony Corp. v. Universal City Studios
Don't you get tired of saying things that you know are wrong?
(Answer: apparently not.)
Up next, we've got a comment from our post discussing the rules of image manipulation and when a derivative work becomes an original creation. One commenter proposed that the standard should be the original creator's ability to recognize the new work, but an anonymous commenter laid out the many reasons that's a bad idea:
Several problems with that idea.
First is that it turns "the first creator" into the judge, which not only makes the judicial system irrelevant, but also places the adjudication in the hands of someone who, not only has a vested interest in the case, but is also the aggrieved party. That is a huge no-no.
Second, the first creator may not even be the one who holds the copyright on the original creation, if said copyright has been transferred to another party. In the case of music, we have seen numerous examples where the musicians themselves are perfectly fine with their work being manipulated, but their labels, who hold the copyright, are not.
Third, every "first creator" will have a different standard for when they consider a work not manipulated enough. Some will consider any use of their work to be infringing, regardless of how close to the original the new work sounds or looks. In effect, this results in a widely inconsistent standard that is impossible to determine until after the new work has been produced. It's the same problem as fair use: it's only a defense, and doesn't prevent someone from being lawsuit-happy.
Forth, even if it's not recognizable to the first creator (or copyright holder), another party may inform said creator that, in the opinion of that second party, the work is not manipulated enough. This could change the viewpoint of the first creator, especially if they stand to gain financially from following along with the second party.
Fifth, nothing's stopping the first creator from claiming that another work is a manipulation of their work, even if the two only share vague similarities and the second work had nothing to do with the first.
In short, your definition is too vague, undermines the judicial system, and would cause unacceptable chilling effects on artistic expression.
I know what you’re thinking: "Did he fire six shots, or only five?" Well, to tell you the truth, in all this excitement, I’ve kinda lost track myself. But being this is a .44 Samsung, the most powerful cell phone in the world, and would blow your head clean off, you’ve got to ask yourself one question: "Do I feel lucky?" Well do ya, punk?
I promise never ever to pirate that song or listen to it again for that matter.
(If it weren't for the lyrics, I'd say it's kind of catchy — but the terrible message and the painfully awkward context overrides much chance it has of being enjoyable to anyone other than Bob Goodlatte.)
And finally, this post couldn't go by without mention of Mike Rogers' audacious statement that CISPA opponents are nothing but "14-year-olds in their basements". While most people on the internet were balking at his attitude and trying to correct him, one anonymous commenter realized that it probably wouldn't even matter if he was right, and offered up the best response of them all:
The Question is... Are you smarter than a 14 year old, Mr. Rogers.
Not when it comes to that internet thing all the kids are talking about.
By your logic, Craigslist doesn't work. Way more than 70% of the ads are free -- it's probably about 99%, or more. All those damn freeloaders. And yet the company makes millions off of that small group of people that pay... fancy that!
Do you think it is fair that an artist who paints a picture can sell the picture (or charge admission to see it, if they want), but a musician, computer programmer, movie actor, or writer should somehow be denied that right because their works are more easily put in a digital format?
Um, what? That makes zero sense.
It's just as easy for a painter to put their work into a digital format as a musician. And it's just as easy for a musician to charge admission or sell a song by not putting it out there in a digital format.
I'm all for the system you describe: if you want control over your work, you must control every copy personally, as property. But if you put your work into an infinitely copiable digital format and release it to the public, you shouldn't whine and complain when people help themselves to copies.
Of course not. This is a question of the best approach to achieving the ends (promoting the progress) which means separating it from the means to look for other means that could do a better job.
Nobody would argue that rights protection is more effective at promoting the progress than, say, shooting every artist in the head. Less hyperbolically, most people here wouldn't argue that rights protection is more effective at promoting the progress than, say, a government Ministry Of Art that regulates all creativity and artistic funding. Those would both be inferior to the copyright system. But none of that means that rights protection is synonymous with promoting the progress, nor does it mean that it's the best approach, and any honest approach to the question requires giving up the assumption that it is.
As I said at the beginning, it feels trite to list the examples, because everyone's already heard them. But, if you like, here some personal (but hardly unexpected) favourites that I'd make a case for as high-quality creative fiction (both serious and comedic) that deserves attention:
- Breaking Bad
- Mad Men
- The Wire
- The Office (UK edition and the first two-thirds or so of the US edition)
- Arrested Development
- Lucky Louie and, even moreso, Louie
- Peep Show
We're not necessarily disagreeing, I'm just saying it's not always obvious when a specific channel or a specific show is "worthwhile" -- when Adult Swim started piggybacking on the Cartoon Network, it was a block of shows that are never going to be financially viable for cable television -- and it still mostly is, just subsidized by syndicated hits. There are business benefits to being the leader in a particular genre of television, and that can mean subsidizing stuff that couldn't stand alone for years because it's still worth it.
The cost/benefit analysis isn't always so direct, though. If AMC didn't put all its weight behind prestige shows like Mad Men and Breaking Bad, which despite all their buzz, don't consistently pull particularly huge audiences, it's questionable whether they ever would have built the brand and image that allowed them to make and put out a huge moneymaker like The Walking Dead. NBC has been struggling with ratings for years now, and their only decent moneymaker at the moment is The Voice -- which they smartly use to subsidize critically-praised but low- or unevenly-rated comedies, the high quality of which are pretty much the only thing that kept anyone talking about NBC or thinking of it as more than "that shitty channel with the olympics"
Fox uses its deep pockets to run the FX Network, which has a bunch of niche original shows that have gotten fantastic receptions -- Fox found a way to capture the audience of people who hate everything on Fox. Plus The Simpsons has fuelled the Sunday night animation block forever now, and Fox got to experiment with a tonne of niche shows around it, eventually finding sturdy syndication fare like King Of The Hill and (though they almost missed it) the moneymaker of Seth MacFarlane.
Adult Swim airs those syndicated KOTHs and Family Guys and Futuramas as a lead-in to the block of extremely niche animated programming, where they've supported all sorts of wild experiments and made themselves one of the biggest names in modern animation in the world -- and the cult following allowed them to branch out into music and a sizeable web presence with reasonable success.
There are lots of reasons to subsidize shows that, on paper at a glance, appear to lose money or break even.
It seems trite at this point to just list off the usual suspects of quality television, but seriously, you should check out what's out there. Whatever kind of fiction you are interested in, there's a show either on now or from within the past 10 years that has done something new, interesting and creative with it. TV is by nature a fluid and dynamic medium for storytelling, and it does have some business constraints, so TV shows aren't "perfected" the way supposedly higher forms of art sometimes are -- which means you can argue that there are some things they can't achieve. But there are also great things that only they can achieve, and it really would be stupid to ignore the contributions they make to art and storytelling.
As for culture, that's really a much bigger thing than just what's good art. I don't think reality television is good art but it's certainly a real element of our culture, like it or not -- and dismissing the medium of television because of it is as silly as dismissing magazines because the most popular ones are vapid ad-rags.
Sure, let's role with it: A marriage is defined as a man and woman. And a faggot is defined as a bundle of sticks. Some people invent new definitions out of love, others out of hate. Which group are you closer to, Michael?