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About Ophelia Millais
Hello, and thanks for reading my profile. This is the only account I use on Techdirt.
I prefer to remain semi-anonymous, mainly out of paranoia. My posts under this name mainly appear in forums devoted to discussion of copyright issues, and I don't want potential employers and business associates, for example, to hold this fact against me or my friends. My posts are simply intended to be reasonable arguments and poignant observations, taken at face value and considered on the basis of their content only. My real-life credentials and reputation aren't relevant.
That said, I'll say a few things so that you know where I'm coming from. I'm a musician, DJ, and photographer. My own music has been released commercially on an indie label, and more recently was self-released with Creative Commons licenses. My photography is also CC-licensed, and this led to one piece being displayed in a museum in Berlin, where it has been seen by tens of thousands of visitors. (Impressed? gosh, I hope so.) Although I'm a "creative professional," my art has never come close to supporting me, save for a few DJ gigs in the '90s. Therefore, I work a day job I enjoy, and it doesn't impede my creativity at all. It never occurred to me to be resentful that I have to work a day job, or that some people don't consider my art worth paying for. I have no sympathy for artists who feel otherwise. I only ever feel gratitude toward those who enjoy my work.
Although I tend to be a skeptic of copyright maximalism, I actually have quite mixed feelings about copyright law, file-sharing, the commercialization of art, and the various kinds of entitlement felt by the various competing interests. Generally, though, I'm idealistic in that I hold the principles of freedom and privacy in high regard; if a choice must be made between the businessman's "freedom to profit" (or the artist's legal rights) and the individual liberty and privacy of consumers, the consumers should always come out ahead.
Here are a few of my favorite memes:
It is a well-kept secret* that most artists have sources of income aside from the royalties they receive based on consumers purchasing new copies of their work. Very few enjoy sustained, lifelong success where they live entirely off of such royalties. Those who do achieve such success often don't maintain it for long. Yet so many artists, especially when debating file-sharing and copyright, continue to promulgate the myth that they are part of a class which solely subsists on such royalties, and that making art is and must be a full-time job, or else it will cease to exist. Certainly, for a privileged few, it is a profitable, full-time job, and certainly, some artists are only in it for the money. But that's the exception, not the rule. There is no reason that artists must earn a living wage exclusively from copyright exploitation, or that if they ever do reach that point, that they're entitled to remain in that fortunate state. Most are not in that category, and it's disingenuous to imply otherwise.
Marketing creative works can be very lucrative, but artists and copyright owners are not entitled to earn a living from their works, nor are they entitled to sustain a particular level of earnings. They can try, of course, but there are no guarantees.
A creative work's monetary value is not conferred by its price tag, nor by the labor and expense that went into it, nor by public interest in it. Monetary value is what each consumer is willing to pay.
It's not the consumer's responsibility to choose to spend their money only in ways which are assured of sustaining the businesses of those they buy from.
Shaming consumers for their spending choices is attacking them, and is a business strategy best left to televangelists and other con artists. Even if you are on the moral high ground, you undermine your cause when you resort to such tactics.
* [I was taken to task for characterizing artists' day jobs as "a well-kept secret". I stand by it, though. Copyright advocates repeatedly insist that artists won't create if they have to go get day jobs "to compete with free" when others are "stealing" their work or whatever, when in fact the reality is that most artists already have day jobs they just keep quiet about, lest anyone realize they aren't suffering and aren't entitled to copyright-based welfare.]
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Re: Re:
As you said, they are in a public place. It would be improper to broadcast any footage disclosing the identities of the civilians, but I'm not sure the act of filming them can be said to be an invasion of privacy, even if they don't want cameras on them. And we've already established that cops don't have the right to privacy in these situations.
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You're good at detecting sarcasm. :)
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Again, sheerly an anti-copyright WEDGE for Mike.
What I see is basically what I said in my previous comment: the post is merely a relayed report about an IP-maximalist organization spreading baseless FUD and employing faulty reasoning for upholding the status quo, to the detriment of the disabled. And that's not even Mike's assessment; KEI blogger Jamie Love is who ascertained these things. Mike's contribution, besides the secondary report, is really just the addition of his "see? yet more evidence of..." reaction.
I suppose his posting it here can be interpreted as an attempt to discredit someone, although "copyright holders" is a bit broad, since that's basically everyone who has ever authored anything. Rather, it's discrediting this particular business lobbying group, based on something they're actually doing. What more do you want?
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Again, sheerly an anti-copyright WEDGE for Mike.
You want to have a conversation based on the merits of your post, yet your post is pure ad hominem.
Like any blog, this one attracts more than its share of readers whose opinions are aligned with those of its contributors. And like most popular blogs, the writers know their audience, and both consciously and subconsciously write for it.
Yet, for some reason, you envision Techdirt readers as an obedient, unthinking cult, hanging on Masnick's every word and regarding him as their "leader". You regard all the readers - except those agree with you, I bet - as unable to formulate positions and arguments on their own, unwilling to see that his posts are mainly griping and shit-stirring.
Like I said, he knows his audience - he can certainly whip us up into a pissed-off comment frenzy - but we know him, as well. You guys keep trying to point out to us what's really going on, not realizing that we already know, and it doesn't matter, because most of the time, he's not saying anything we don't already agree with.
Mike and his guest bloggers just relay reports of outrageous things that the IP industry is up to, and they often express their opinions about it, and we all chime in with ours. It's as simple as that. He doesn't have us under mind control. He's not our "leader". One misstep and we'll turn on him...for that one post, which is how it should be.
This "leader" fixation is a generational thing. Mike's generation, the Gen Xers, distrust power and leaders in general, starting with their parents. The younger Millennials laugh at would-be leaders and rarely conflate celebrity with authority. But the older generation, the Baby Boomers - good god, they revere and exalt as ideologues anyone who's got anyone's attention, and can't comprehend the idea that everyone must be following someone. Of course there are exceptions to these trends, but I'm guessing you're in this camp, born before the 1970s. Am I right?
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I'm just commenting in order to be the first person to spell Silverglate correctly.
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"Everyone wants stuff for free" is true and should be an integral part of these policy discussions. "Everyone just wants stuff for free" is not true and should not be the basis of policy.
The reality is that right now, many people choose to get gobs of convenient content for free, and most of those people also choose to pay for some content in various forms. This has been going on for a long time. Content still generates tons of cashflow. It's in different configurations than before, but the money is still all there, notwithstanding wages not keeping pace with inflation and debt.
What needs to be abandoned in these discussions is the notion that this longstanding reality - that not all content needs to be licensed and paid for ad infinitum - is an unsustainable situation which government needs to put an immediate and total stop to, or even curb to some degree. Likewise, pitting every proposal against the binary choice of strictly paying for every use and experience of content, versus no payment or enforcement for anything, is utter nonsense. And as we repeatedly point out here, it is counterproductive to regard as a hostile adversary every consumer who expects certain things - or anything - to be free.
Yet, the copyright maximalists have long dominated Congress's ear and have very well established these strict, absolute parameters for the conversation. It will require creative thinking to get lawmakers to understand that progress will come from realizing it is their duty to abandon this polarized framing of the issues.
A much more realistic starting point for policy is to acknowledge that the public fully expects that certain kinds of uses of content need not be licensed or subject to fees, and that most people draw some kind of distinction between the acceptability of unlicensed commercial and noncommercial uses. This has been manifesting in people's actual behavior for decades, and is supported by polls and the surge of democratized, creative output. Lawmakers and industry need to stop fighting these expectations and developments; these changes need to be enshrined and protected by law, not punished.
Re: Re: WHOA! Stop at: "everyone just wants stuff for free".
I look at it like the copyright industries have spent decades getting us to treat content as nothing but a commodity. They have drilled into our heads that nothing else matters but the money. It's not art, it's not work product, it's not culture, it's not ideas. So now that's exactly what we all do: treat it as a pure commodity. And that means that we sometimes get to determine the market value of the content to be less than what they want it to be. Oh well.
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I hope I'm wrong, but it wouldn't surprise me if the authorities and/or coroner attribute the guy's death to "excited delirium". The baton cracks to the head and body will be deemed inconsequential.
Re: Sue Monsanto...
As the linked court opinion notes, the grain elevator sold the seed for the ordinary use of consumption, not the extraordinary use of planting. I think warranty of merchantability would only apply if the seed were unfit for the ordinary use of consumption.
Re: Re: Re: Re: Re: Re: Interesting fight, but...
s/see/sees/
Re: Re: Re: Re: Re: Interesting fight, but...
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That fact that I can't imagine any politician, let alone law enforcer, nowadays saying anything like "We have nothing to fear but fear itself" really makes me wonder how bad things are going to get. The next big terrorist attack may well succeed at causing us to destroy ourselves.
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This pretending-to-be-stupid applies just as well to the farces of streaming, DRM, and copy protection.
We are expected, by the copyright industry and its enablers like Congress, Spotify, Google, etc.; to pretend that the data flowing through devices we own is not ours to do with as we please; to pretend that we can't decrypt, unwrap, demux, save to disk, or otherwise recontextualize the content. We are expected to pretend we are so stupid, we can only handle being told where to enter our credit card numbers and personal info, and where to click to access the music or movie or e-book. We are told to pretend that any technology the content industry doesn't want us to have, doesn't, shouldn't, and mustn't exist, and that sharing such technology amongst ourselves, just like sharing the content amongst ourselves, is a crime and is wrong. Oh, and we must pretend that only the government and industry-approved devices can break digital locks.
It's madness, utter madness.
Re: Re: Re: Re: Re: Real Reason
My understanding is that she wrote Mockingbird after friends & family encouraged and subsidized the couple of years she spent on it, and she didn't write again mainly just because she hated the limelight. Maybe that's related to fear of criticism/failure, who knows.
We can speculate as to what degree copyright and the promise of a lifetime-plus of royalties played in her life and career choices, but to be fair, she doesn't owe the public anything, nor has she made the kind of arguments we're railing against here, and her current dispute has nothing to do with it. I hope I didn't imply those things.
Like I said, I just think of her when I hear defenders of copyright, in litigation and legislation, insist that creativity depends on long, strongly enforced terms.
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Rather than begging the question, I'd say this was a straw man. We did not argue that she shouldn't have had any copyright at all, but your reply is written as if we did.
Regardless, you suggest she only wrote the book because she knew she could get (at the time) 56 years'-worth of royalties. I believe that it would still have been written even if she could've only gotten, say, 10 years'-worth. Since writing was her true calling, maybe even less than that. And I believe that the prospect of the gravy train coming to an end so "soon" would've helped motivate her to bestow more great works upon the public.
Re: Real Reason
This is exactly my problem with Harper Lee. I mean, it's a shame that someone has taken advantage of her, and I do hope she gets this matter resolved. But although she's someone who said that writing was her true calling, her literary output has been a bit underwhelming. In fact, she's exactly who comes to my mind whenever someone insists that long and strongly enforced copyright terms are necessary to encourage new creations by the most talented artists. What has she been encouraged to do? She wrote exactly one book, then kicked back and lived off the royalties for over 50 years.
Under the copyright law in effect at the time she wrote it, it would be slated to enter the public domain in 2016, I think, so Pinkus wouldn't have as much incentive to swindle the little old lady in her twilight years. Had it entered the public domain sooner, the swindle wouldn't have happened at all, and she may well have had an incentive to contribute more great works to society.
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No, that's wrong. Copyright only applies to certain kinds of works, and only to the extent that it's used in certain ways. To say that a work is "copyrighted" doesn't mean that every possible use, such as butt-wiping, is only allowed by the copyright owner and licensees. Rather, it implies only that certain kinds of uses of that work (copying, distribution, etc.) are protected. Fair use law explicitly declares that a subset of these uses (like copying an excerpt for criticism) are beyond the scope of copyright altogether. It's not about equity, and it's not about using something in a certain way despite the rights that someone has over it (there is no "anyway"). It's about that person not having all the rights over the work that they think they do.
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Copyright is not just about which works that copyright applies to, it's about certain kinds of uses of those works. The law (U.S., at least) limits the works that are covered, and it limits the types of uses that are covered. Thus, fair use is not "I know this work is covered by copyright, but..."it's "I know that many uses of this work are protected by copyright, but this particular use is not".
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That part of Mike's analysis leapt out at me as being somewhat off-the-mark, too. I'm no more of a lawyer than Mike, but it seems your response isn't completely correct, either. Or rather, it's a matter of philosophy: if a court has not weighed in on it, is a given use (like the Kind of Bloop cover art) definitely either infringement or fair use? Or is it neither?
Fair use puts a limit on what copyright covers. Certain kinds of uses are not, as the copyright maximalists would have us believe, "permissible infringement", but rather are just things that copyright doesn't even encompass; there can be no infringement in those situations, as there's no exclusive right upon which to infringe, and no license to seek.
But the plaintiff in a copyright infringement lawsuit asserts, implicitly, that the defendant's use is not one of these outside-the-realm-of-copyright situations. It is up to the defendant to convince the court otherwise, so it's hard to see how anyone could say it's not a defense.
That said, I don't see how it can be said that infringement has occurred, unless there is a judicial finding or admission of infringement. A prima facie showing of infringement is neither of those things. It is a modestly supported accusation, an assertion that something looks like infringement.
I can say you did something which infringed upon some right of mine, and offer some evidence that you indeed did commit the act which I say is infringing, but unless you admit to infringement, it's up to the court to say that yes you did commit the act and yes that act infringed upon my rights. Until then, the infringement is just, like, your opinion, man.
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Can't wait to see what patents are infringed by this tool :)