James Plotkin’s Techdirt Profile

jamesplotkin

About James Plotkin

I'm a law student, musician and sometimes writer interested in intellectual property and tech law matters.

Check out my blog at: jamesplotkin.blogspot.com

http://www.linkedin.com/pub/james-plotkin/12/617/603



James Plotkin’s Comments comment rss

  • Feb 27th, 2013 @ 5:43pm

    Re: Star Wars Reference?

    Also the name of a Rage Against The Machine album :)

  • Feb 16th, 2013 @ 10:36am

    Re: Re: Re: Re: Re: Seriously?

    You're a very angry man, aren't you?

    I didn't refuse to acknowledge his distinction. In fact I did acknowledge it. I'm not claiming my analogy is absolutely perfect. All I'm saying is that it's sufficient to prove the point I was trying to make: "restricting peoples rights to do whatever they want is not an inherently bad thing".

    You speak very loftily of "truth". In reality, all you do is make claims. Where I and many other people here are respectful to one another, you've essentially called me "evil" and someone who doesn't care about truth...dude, you don't even know me...

    Anyways, I think I'm done with this thread. You're entitled to your opinion and I respect your right to voice it. I would recommend however, that you check your angry rhetoric at the door if you want to take part in a productive conversation. If you don't, have at it Hoss!

  • Feb 16th, 2013 @ 10:24am

    Re: Re: Re: Re: Radical Mike

    I feel like this particular point is very tired and overused.

    Fine. It's not theft in the same way as stealing a person's car is theft, ok? Let's call it something else - unlawful appropriation of someone else's work.

    Just because IP is intangible doesn't mean it isn't valuable. It also doesn't mean people aren't capable of taking it.

    You're right (and so was Jefferson from whom this argument originated) that lighting your candle by my flame doesn't darken my light. But this is a false analogy. By copying my work you are depreciating its value. Whether or not this is stealing to you is irrelevant. A person is unjustly enriching themselves to someone else's detriment.

    "Talking theft and property rights when they are not applicable is outright lying, and people such as yourself who continue to do so should be shamed and held accountable for your obvious lack of concern with truth in this important topic."

    This is verging on trolling but I'll reply anyways. I don't know what your expertise is in the domain of property law (or intellectual property law). I have experience with both. I've given a lot of thought and devoted a lot of time to these issues. I also have the benefit of a legal education where I focused most of my attention on these matters.

    Perhaps I'm not "lying" and in relaity it's you who has a little bit of trouble with the nuances here. I don't know that I even used the word theft, but if I did, I meant it in a colloquial sense.

    If you don't think IP rights should exist, that's fine. Calling people who disagree with you "evil" even though they posit cogent and respectful arguments isn't terribly productive.

    Finally, you're opening statement is wrong. Copyright is property, legally. I mean, that's just a fact...Is it EXACTLY like real property and personal property? No. It's "intellectual property". It's intangible and it's based on certain legal rationals that are not present in the traditional forms of property. But to say that it isn't property "legally" is a clear demonstration of your lack of understanding of the law...

    As for morality. I'm not someone who believes in objective moral values. But let me put it this way:

    If Bob puts on a concert and records the concert so that he can sell a live CD, but someone else bootlegs the concert without Bob's permission and sells or gives away the concert for free, Bob likely won't make as many sales.

    How does Bob feel? How do those who like Bob and want to see him succeed feel? Is the bootlegger morally wrong? Some may say no, but I would think that most people would say yes as soon as they put themselves in Bob's shoes.

    Anyways, You need to start from the position that IP is property because the law considered it to be even if you don't. Any meaningful conversation on the topic should begin from a point that is rooted in reality. You skip right to the idealism...good luck with that.

    Cheers!

  • Feb 16th, 2013 @ 10:02am

    Re: Re: Re: Re: Re: Re: Re: Radical Mike

    Yes. I see. The argument still doesn't really hold water. Presumably cars existed before the first traffic lights. I fail to see the insight here.

  • Feb 16th, 2013 @ 9:59am

    Re: Re: Re: Re: Radical Mike

    Thank you for the reply.

    "This doesn't make sense. Why would we as a society shrink the public domain (without copyright, everything is public domain) in order to grow it? Society doesn't gain anything from this bargain."

    Well I think this is a false dilemma. Remember that the public domain grows with the number of works created. This is a simple mathematical fact. Would you agree that incentives by definition encourage people to do or abstain from doing things?

    If this is true, then granting property protection to works of the mind doesn't shrink the public domain, it grows it (just with a time delay of life + 70- which I think you and I both agree is way too long!). Whether the current regime allows for optimal growth is a different question. I would say no. Some might disagree. There's a healthy debate to be had.

    "We have to ask: Increased creation of what? Art? Why does society want that? Society doesn't benefit merely from the creation of art. Art is amazing and important, and vital to the development of society. But simply creating it isn't enough. Art is of no use to society if it sits in a warehouse an nobody sees it."

    Ok. But painting 30 canvases and then warehousing them, never to be seen again isn't profitable. You're strawmaning it a little here. I never claimed that simply creating a piece of artwork is enough that someone should get paid for it.

    We agree that simply creating a work isn't enough to add to culture, but it also isn't enough to get paid. In order to both get paid and add to culture, the work must be disseminated.

    "Now, finally, things are starting to make sense. Copyright isn't an incentive to create; creation doesn't need further incentive. What needs incentive is *publishing*"

    Ok. The way I see it, all you've done is add one link to the chain of reason. if publishing, not creation is the goal of copyright, then copyright incentivises publishing, not creation. I don't necessarily agree with you, but even if you're right, the reasoning for copyright law remains the same, only the terms have changed ("creation" is now "publication").

    As for the internet, I think we agree that it's a huge game changer. You're right in pointing out that publishing costs have gone way down for most things. Where I take issue is what you degrade publishing into.

    In the most general sense, when a person posts their status on Facebook, they are publishing. But we both know that isn't what we mean. I think that blogs and YouTube are the greatest equalizers. Still the difference between a good quality and poor quality YouTube video has nothing to do with the service itself, but the quality of the work uploaded to it.

    I tend to watch very high production value and very low production value videos on YouTube. Sometimes my favorite thing to do is just watch another person talk into a camera about something that interests me. Other times I want to see a thrilling action sequence with cool special effects. The former has a low production/publishing cost; The latter, not so much.

    In my opinion, while most creators don't need copyright at all, some need it a lot. The reason why having it is necessarily better than not having it is because the people who do not wish to enforce their copyright don't have to. Copyright law still requires an affirmative action by a rights holder to enforce the right. For those who aren't interested in enforcing, don't. Furthermore, people can renounce copyright in a work or place the work under a very broad CC license. But what about the minority of creators who still do want to protect their work? Why shouldn't they be allowed to?

    This brings me to one of your other points about how copyright is no longer necessary. You're right that a lot of artists don't directly profit off their copyright. Many still do however (trust me, people I know stillg et the odd royalty check). While most performance artists make more money off performance, I don't see anything wrong with having another revenue stream.

    "The balance paradigm assumes an either/or situation: Either creators earn a living, or the public domain is fully and rapidly filled."

    I'm sorry but I disagree completely. It may be correct to say that under the current regime (which none of us seem to like that much) works aren't flying into the public domain at the rate we would like. What if the copyright term were a flat 10 years. That would mean that everything created before 2003 would be fair game today. That seems like a pretty robust and rich public domain to me.

    I believe the above scenario is a case where the public and private interests aren't locked into a zero sum death match. You're clearly bright and you've clearly thought this through. I would be surprised if you didn't agree here.

    Finally on this point, the fact that copyright is not proving to provide large amounts of revenue to the majority of artists (it still helps a minority of artists quite a bit) today doesn't mean that it never will again. It just doesn't logically follow. We've moved away from a world where a CD or record holds much value for the average person; but what if there is some sort of shift where physical media becomes cool again. I mean, nobody thought the Van Dyke would come back...I see far too many of them for that to be true.

    As for the dying publishing industry, I'm not shedding too many tears. But this too is not an adequate justification for abolishing copyright. The model has switched to self-publishing (or indie publishing model). This doesn't mean that copyright has become useless; it is simply useful to a different person, the author instead of the publisher. Instead of the publisher offering money to the author, the author takes his or her work directly to the public. He then gets money directly from them, cutting out the middle man. It's a different business model but still not one in which copyright protection has become obsolete.

    Again, I buy the Internet paradigm shift idea. Where you and I disagree is on the place of intellectual property rights in this new system. It's a healthy debate and I'm glad to have such a worthy adversary.

    Cheers!

  • Feb 16th, 2013 @ 9:03am

    Re: Re: Re: Re: Re: Radical Mike

    Copyright predates mechanical rights. In fact, it was an amendment to the existing copyright law of the US that created mechanical rights as a result of the SCOTUS decision in the "aeolian company case".

    I'm Canadian so our law had taken a slightly different path to where it is today. Still, here too, mechanical rights didn't mark the beginning of copyright protection.

    Check it out! Cheers!

  • Feb 16th, 2013 @ 9:00am

    Re: Re: Re: Re: Radical Mike

    Alternative bills:

    Ok. Well then I thing we're speaking the same language, reform. If you say that copyright is broken, I agree. If you say new law is required, I agree. But notice that we're not talking about abolition anymore.

    "Instead, you're saying that authors have an interest in being able to extract money from the public (who presumably do have to work at day jobs) so that the authors don't have to."

    I meant that the art (or science) is their day job. I mean that an artist shouldn't also have to be a waiter or gas pump attendant. Now this is an idealistic view, and even a perfect copyright system wouldn't make it so that every artist who had the notion of becoming one could undoubtedly make enough money to live (or even thrive). But as you said, let's get as close to perfect as possible.

    "It is not substantially different from the old patents in England, where the crown (typically in order to raise money without having to go through Parliament)"

    Similar origins maybe, but different application and different justification. While you're right about the history, I don't see what bearing that has on how patents and copyrights work today. The monopoly right is not absolute. There are doctrines like fair use and de minimis copying that say that not any use of a copyrighted work falls within the exclusivity. Sorry Captain, but I just don't buy this part of your reasoning.

    I agree that copyright isn't charity. Again, in my view (and nothing you're saying seems to run counter to this) reforming the law to recalibrate the balance is what is needed. what about a flat term of 20 or 30 years instead of life plus 50 (or 70 in the US). No special pleading for Mickey Mouse. These are the types of conversation we need to have. Notice the starting point isn't "no copyright whatsoever".

    "Basically, your natural right to property consists of whatever you can personally defend against anyone else."

    No. Not in 2013 anyways, and not in the common law or civil law systems of adjudication. The law is there to help you defend your rights so that you don't have to live your life with a gun in your hand repelling the borders of the family ranch. You're describing a "might makes right" scenario and I'm afraid it's woefully out of touch with how property rights have worked in common law jurisdictions for the past 1000 years. Like I said, I didn't want to get into a discussion about the theory of property. I simply brought up the adverse possession doctrine to illustrate that the law works to balance the public and private interests with real and personal property as well, not just intellectual property.

    "Why do white people own most of North America? Because the previous inhabitants could not defend it."

    Actually, the Europeans- in all their racist elitist splendor- considered this land "terra nulius", or "vacant land". Simply put, because they didn't have the same laws and socioeconomic structure, the Europeans didn't recognize the natives as civilized. Had they respected their own rules about property, things would have gone differently. This is a black eye on the western conception of law as universal. Fortunately, we aren't as overtly racist today as the renaissance Europeans were.

    As for the Brooklyn Bridge I disagree. No matter how many people you can con into thinking it's yours, that doesn't make it so. It's a public resource. Even if you did own it (like the Ambassador bridge connecting Windsor, Ontario and Detroit, Michigan) our laws would still prevent you from determining who can or cannot cross the bridge. We don't take kindly to arbitrary discrimination and if those practices ever arose, you can be sure that people would manifest their malcontent pretty darn quick.

    All this to say that your might makes right theory of property is not an accurate depiction of how property rights actually work.

    "Same thing for copyright. Authors can claim to have rights, but really the public decides what rights they deign to give to authors, under what circumstances, etc. And why should they do so unless it is ultimately to the public benefit? Your balance idea just doesn't hold water."

    It seems that you dehumanize authors here. Let's not forget that authors are people too. They're part of the public and their interest forms part of the public interest. Too often this debate is painted as a struggle between the virtuous public and the evil artists. Come on now...that's not fair. When you say the public decides what rights authors get, and that they only get the ones society feels they deserve, you're kind of failing to consider the artists. You're treating them as a means to placate the public and not an end in themselves. That's just not cool in a society where individual well being is valued.

    "It's not bad for each person to want a personal library that consists of literally every work in existence, and it's not bad to want it for free, and it's not bad to want to use it without any restrictions."

    You're right. It isn't bad to want these things. But that's not what I said. Just because it isn't wrong to want something doesn't mean that actually having it is a good. The consequences of everyone getting everything for free is that the people who make those things don't get any money. Some may create these works anyways, but they'll be doing so to their own financial detriment as the time they spend creating could be spent earning a living. The theory goes that this will reduce the over all amount of art created.

    You dismiss the idea of copyright as charity (as you should), but the abolition model just turns the charity case around. The public becomes the charity case and the artists the benevolent donors...except it's against their own will.

    "messy concerns that arise when people have to have food to eat, clothes to wear, homes to live in, etc. But it can still be an ideal we treasure without ever being able to attain."

    Again, I agree with the last part...we can dream. I can also dream of a world where I'm the richest and most loved person in existence. Eventually, however, I have to come back to reality to slog my way through this world like everyone else. I suppose what I'm saying is that it's ok to dream; but in a forum where people are trying to solve real world problems, fantastical solutions like copyright abolition is not necessarily the best place to start the conversation.

    Again, I've enjoyed this exchange. Thanks for engaging.

  • Feb 16th, 2013 @ 7:25am

    Re: Re: Re: Seriously?

    I respectfully disagree. For the purpose of my analogy, the revokability of the act isn't important. It's a very simple point I'm trying to make here.

    In my opinion, dwelling on the differences is a red herring.

  • Feb 15th, 2013 @ 11:54pm

    Re: Seriously?

    "[show] me someone that's made a living off copyright and I'm pretty sure it's someone limiting the rights of others to share content."

    Well yes. That's the point. In order for them to make a living off their work, they need to protect their rights to exploit those works. Copyright is an "exclusive right". an exclusive right doesn't mean the affirmative right to do something (although it does entail that right); it mean the right to exclude others form doing something.

    We start from the position that anyone can do anything. Then we temper it by saying that anyone can do anything except those things that are against the law. When we do that, we restrict other people's rights. But this isn't necessarily bad. We have to restrict some rights to ensure others.

    Assassins make their living killing people. I don't see too many people lobbying for the repeal of murder statutes because those laws restrict the rights of contract killers to carry out their trade lawfully. We've determined that a person's right to live trumps a persons right to earn their living killing people. Likewise, we've determined that a creators right of remuneration for their work trumps a persons right to go hog wild and do whatever they want with other people's creations. As I wrote in a reply above, there is a balance to be struck and there's a lot of nuance, but the principle is the same.

    "... I'm not going to wait for a TV broadcast on a specific channel which costs me $50 a month plus $25 for a premiere channel to wait just once a week for a show that most people would like."

    Right. I covered this. The content industry should stop fighting technology and let you watch Game of Thrones whenever and wherever you want. The old broadcast model is not the only way anymore and the content industry is slowly but surely realizing that. Take Netflix's new release House of Cards. In recognition of the fact that their fans often like to watch a whole season of a show in one shot, they released the whole season at once rather than a week at a time.

    The outcome you want to achieve doesn't require the abolition of copyright law; it requires a paradigm shift in business practices. Killing copyright isn't the best way-and certainly not the only way- to achieve that, unless of course you can prove that it is. Again, I haven't seen anyone prove that, only claim it.

  • Feb 15th, 2013 @ 11:40pm

    Re: Re: Radical Mike

    Thanks for the reply. Very thoughtful.

    "Copyright (and patent) law should serve the public interest. But two competing alternative laws might serve the public interest to differing degrees. We should choose whichever serves the public interest most; in fact, we should aim to maximally serve the public interest."

    I unreservedly agree with the very last part of your statement. A state of affairs where the public interest is served to the highest possible degree is desirable.

    I'm not sure what you mean when you say "competing alternative laws". Are you referring to the juxtaposition of copyright law with the freedom of speech? If you wouldn't mind clarifying this point I would be happy to respond to it.

    On the point of abolishing copyright, I agree with you that it is possible that the best state of affairs would be to abolish it outright. Furthermore I don't think that the people who propone the abolition of copyright law are "stupid" (or at least they're not stupid simply because they hold this position). But before we even have this discussion, it's pertinent to examine the nature of copyright law.

    We all know that intellectual property rights are conferred on creators as intensives to create. The legislator makes a bargain with creators granting them limited monopolies over their work in exchange for that work entering the public domain upon expiry of the right. This is the bargain theory.

    However, there is another way of looking at IP rights as a balance between the private interests of creators and the public interest of society as a whole. This isn't an alternative way of looking at IP rights; It's perfectly compatible with the bargain mentioned above. The private interest of creators is to be able to earn a living off their work so that they don't also have to work a day job. Here is where I agree with Dodd in that not everyone in the entertainment business is filthy rich.

    If you (like me) think that the balance is out of whack, then you're not for the abolition of copyright because by recognizing the legitimacy of the balance, you necessarily recognize the value of copyright's existence- namely to maintain the balance between the private and public interest. It's the same reason we have laws for other forms of property.

    I don't want to get into a lesson on the law of property here, but one brief example is adverse possession (a.k.a. squatter's rights). The common law recognizes a persons absolute (subject to the government right of expropriation of "eminent domain" in the US) right over their land. However, the common law has decided that it's in the public interest for land to be used and for productivity to be increased. The courts therefore developed a doctrine by which a person with no rights in land may acquire those rights though possession of the land that runs counter to the title of the rightful owner. If a person holds that land for a prescribed period of time (and fulfills all the other requirements of the adverse possession doctrine), they become the rightful owner of the land and their claim is unimpeachable, even by the old rightful owner.

    You can use abolition as a starting point if you want. I just don't think it makes sense given that our social justification for copyright is based on this bargain/balance relationship. If these are indeed virtues in our system, then abolition does seem to fall on the outer edge of the spectrum- hence why I refer to it as radical.

    You were right about my statement being tautological. I could have taken more care in phrasing it. Still, I think you know what I was getting at. Again, assuming the balance/bargain paradigm is valid (and I see no evidence put forward by Mike or anyone else that it isn't), there should be laws in place to protect that balance. That entails determining what is within the bounds of the law. What is not within those bounds is illicit and the law should not only say that the behavior is bad, but provide mechanisms and remedies for rights holders to protect themselves and stem the behavior.

    "I don't understand why this is bad. It may be impractical, it may be short sighted, and we may want to prohibit it... but in an ideal world this is certainly what we would want, and even if the ideal is unachievable, we really ought to strive to come as close as we can."

    Again I'm not sure what you mean here. If something is impractical, short sighted, and behavior you admit we want to prohibit, then why isn't it bad exactly? Surely if the word bad is to have any meaning with regards to this debate, then the flagrant disregard for the rights of others which I referred to should qualify as bad.

    Looking forward to your reply.

  • Feb 15th, 2013 @ 10:56pm

    Re: Re: Radical Mike

    With respect, I think that the Napster and Grokster case and the rash of copyright infringement lawsuits against downloaders between 2004-2007 are proof that the Sony case was not the last chapter in the "content industry vs. innovation saga".

    "The issue is not one of authors v. inventors, but one of authors v. persons who take the work product of inventors and then build a business model around the work product that relies in major part on the unlawful dissemination of authors' works."

    I think we're saying the same thing here. Like I said, I'm all for legal action against those who flagrantly flout the property rights of creators. I'm just against the content industry using the law as a way to stifle innovation that conflicts with their current business model.

    Again, I think we agree.

  • Feb 15th, 2013 @ 8:15pm

    Radical Mike

    I agree that innovation is important and that the content industry has historically fought against it. This much isn't very controversial.

    Where I'm forced to disagree with you is when you say things like:

    "There is no "balance" needed here. What we need is a free and open internet, period. Protecting IP is a fool's errand. Focus on providing more legitimate services with better service, more convenience and reasonable pricing and there's no need to protect things."

    It isn't an either or thing Mike. Innovation and protection of IP rights can be complimentary. I don't think overbearing draconian protections are needed and I would agree if you said that most national IP laws could use an overhaul in light of today's social reality; but there's a difference between copyright and patent reform and (copyright and patent) abolition.

    You haven't actually made out a case for why no IP rights in any form whatsoever are appropriate. Just saying that innovation will solve the content industries problems doesn't make it so.

    What I think is somewhere in between yours and Dodd's position. I think that the content industry must stop fighting against new technologies. I don't think it's ok for one of the main revenue streams of a record label or movie studio to be suing its customers. At the same time, I think reasonable IP protections should be on the books to allow rights holders to prevent illicit or non-legitimate use of their material. Not everyone is a Netflix. Some people really do want everything for free all the time, creators and rights holders be damned. Surely these are not the Netflixs and YouTubes of tomorrow. The ones that are and are willing to work with rights holders shouldn't have anything to fear.

    A free and open Internet is a laudable objective and one that I think is worth pursuing with the understanding that national and international laws (on topics including but not limited to IP) must be given effect.

    You take a very radical position on this issue. It seems to me that a radical position in either direction on this debate is not only unrealistic, it's naive. It's naive of rights holders to think they can do anything to stop innovation. It's also naive of IP abolitionists to think that the optimal situation is one in which creations of the mind garner no legal protection whatsoever.

  • Jan 6th, 2013 @ 11:14am

    (untitled comment)

    I'm happy to see CIPPIC involved on this file. This really is right up their alley as copyright and privacy law are their two largest focuses.

    In the interest of full disclosure I worked as an intern at CIPPIC for two semesters in 2010-2011. It was an amazing experience.

    Keep it up David and Tamir!

  • Sep 26th, 2012 @ 6:48am

    Sad

    You know, I'm Canadian, so far be it from me to say this...but...

    This is an important election. There is no shortage of substantive issues to be debating. Why is this story getting any traction? President Obama has disenchanted a lot of Americans and Mitt Romney just outright ostracized 47% of them! I mean, why the hell are we talking about piracy of a political doc regardless of how good or bad it is (or how much or little money it's made). The White House shouldn't be giving this the time of day and if it's true that they made a statement slamming the film or it's creator, they really shouldn't have.

    If there's something everyone can agree on, it' that the lobbying force of the content industry is not dependent on whether a republican or democrat holds office.

    This is coming from someone who is passionate about intellectual property law...there are more important things to be discussing than copyright infringement right now...

  • Aug 31st, 2012 @ 10:55am

    Re:

    Agreed. That's more or less the conclusion I came to bellow based on the very nature of the right in question.

    I don't know that we should change the focal point away from the creator though. The right just needs to be a little less strong.

  • Aug 31st, 2012 @ 10:46am

    Broken copyright

    I read the Grimmelmann article on Ars Technica. I agree with Mike that it's a great read. Professor Grimmelmann certainly has a lot of insight on the Internet as it relates to copyright law.

    Still, one thing kind of bothers me and it has to do with the perspective from which his comment is meant. Grimmelmann suggests that we focus on the front end (end user) rather than the back end (service provider). The problem with this approach (from the provider's perspective) is that both the end user and the provider are bound by copyright law. It is insufficient for a provider to assure that their service is offered in such a way that the end user is only doing what they are allowed to do; they must, themselves, not be infringing.

    However, I think that professor Grimmelmann's perspective is an excellent one from a policy optic. If legislators viewed the question of copyright from the perspective of the end use, it would make it a lot easier to assure that the back-end activities don't infringe copyright so long as the front-end activities don't. I'm quite sure that this symbiosis can only be achieved by the enactment of laws axed on user rights.

    Unfortunately, copyright (though intended to strike a balance between the interests of all groups concerned) is primarily a creator centered economic right. It would therefore take a complete 180 as tot he way we view the copyright.

  • Aug 27th, 2012 @ 8:11am

    Re: Re: First sale has nothing to do with this

    It's bob time!

  • Aug 27th, 2012 @ 7:51am

    Re: Re: First sale has nothing to do with this

    As I wrote above, if only the hard copy is destroyed and not the "new original" PDF, we may have an unauthorized reproduction on our hands.

  • Aug 24th, 2012 @ 9:00pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I've learned a lot

    Don't we end up in a bit of a chicken or the egg type scenario now? I mean, a government drafted and enacted the constitution.

  • Aug 24th, 2012 @ 1:06pm

    Re: Re: Re: Re:

    And this is the reality upon which a modern copyright law should be modeled!

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