I'm a bit unclear about this. It seems you're suggesting that my coverage is inconsistent with Mr. Hoffman's public testimony. I did not read Mr. Hoffman's testimony prior to covering the hearing, so I don't know whether or not the statements I summarized and attributed to him in my Twitter coverage are inconsistent with what he submitted to the Copyright Office in response to the Office's RFC.
I can tell you Mr. Hoffman appeared only at one session. He made his statement, indicated he would have to leave the session before its conclusion,and did, in fact, leave the session prior to its conclusion. Mike Masnick did ask me on Twitter during the hearing whether Mr. Hoffman seemed serious in his statements. I responded I thought he was quite serious, since I was sitting nearby in the Office's relatively small hearing room.
I don't have any immediate input about the possible takings issue, other than to say that it was discussed. Mr. Hoffman was the one of the few -- actually, I believe the only one -- who raised and extensively reviewed the possibility that federalizing pre-1972 sound recordings law could impact contractual terms, thereby leading to a takings issue.
An official from the Copyright Office said the agency will post a hearing transcript later this month. While I'm confident my coverage captured the highlights and gist of the hearings, that transcript will and should be the hearing's definitive record.
Please define "copyright defender." The members of our editorial staff, William Patry, Rick Cotton, Jessica Litman, Jane Ginsburg, Lawrence Lessig, the MPAA, the RIAA, Ray Beckerman and the average artist who seeks compensation from creative work all could be defined as "copyright defenders." Yet, there are wide ideological and doctrinal differences among these parties.
The premise of this post (and your request to challenge the Public Knowledge proposals) depends almost exclusively upon a clear definition of "copyright defender." Unfortunately, you've left this open, so it's difficult to say whether your assertion that "copyright defenders" failed to challenge the Public Knowledge copyright reform proposals, or to defend the current copyright system is correct.
The "copyright bubble" is an interesting metaphor, particularly during the current economic problems, fueled in part by real-estate speculation. What the writer seems to presume, though, is that changes in technology and the nature of protected works is fueling this bubble. That may be true for the last 15-20 years, but it is not necessary true for the rest of U.S. copyright law & policy, which goes back to the 18th century.
We are far from copyright maximalists, but it is sort of tiring to hear a lot of strong opinions about copyright from the so-called "copyleft" that limit the scope of any argument about copyright's relevance or viability to the technologies, works, or laws that have arisen since the mid-1990s. It's as if all started with John Perry Barlow's manifesto, and everything prior to that is irrelevant. (We just had this verbal joust with 4 people at once on Twitter, so we're still a bit amped.)
The reason U.S. copyright exists is to encourage learning. Arguably, we have gone considerably past that in scope, in term, and in judicial & political interpretation. At the same time, copyright's applicability to everyday tasks also is a very recent phenomenon. See http://bit.ly/5sX784.
But to resolve the ill fit between copyright & contemporary uses requires more than discussions about bringing about a "more enlightened copyright regime" and how fair use needs to be expanded, and wearing ignorant T-shirts that equate copyright with censorship. To even engage in any responsible discussion about copyright's issues, we think, requires a fundamental, holistic understanding of why the copyright system exists, what its purpose is, and what led us to a point where this is a real problem for too many.
The one think we think is missing most from an informed dialogue about U.S. copyright is historical and statutory ignorance. None of this stuff just began blowing up in 1995. The game is what it is because of what went down before now, and in no small part because copyright law and policy got away from existing for the encouragement of learning. It seems only reasonable and prudent that if the game needs to be changed, we all should at least know the basic outlines of the game and its history.
Cue in music: "Can it be that it was all so simple then?" -- Gladys Knight
This is similar to what Mark Helprin received coverage for when he had his 15 minutes of ill-informed intellectual property policy fame. To understand the theoretical basis (i.e. Romantic authorship) behind Alexie's (and Helprin's) opinions, please see the first half of our post earlier this year on Helprin: http://bit.ly/4wAZVi
And if art is returning to performance in lieu of sales, sounds like authors may be able to learn a bit by borrowing from slam poetry artists, who present their work as a form of performance.
Concededly, this is a shameless plug, but we think it's important for people to have some background and context for ACTA, and how we've gotten here.
Typically, it is easy for many to blame Congress for the skew contemporary U.S. copyright law takes. As we see it, the main problem with ACTA (and other trade agreements) is that Congress is not even in the picture: instead, this sort of thing is intellectual property policy-making exclusively by fiat, as determined by the executive branch. (The U.S. Trade Representative is a Cabinet-level position.)
We covered several aspects of this issue earlier this year in a three-part series:
Part 1 [ http://bit.ly/fOjpq ] talks about "harmonization" of copyright law, the role of the U.S. Trade Representative, and the end-run around Congress.
Part 2 [ http://bit.ly/BCxCq ] discusses the annual Special 301 process that occurs each spring, including "piracy" calculations. The Special 301 report conclusions are part of the evidence USTR uses to justify ACTA as a response to "piracy."
Part 3 [ http://bit.ly/6hdXeJ ] probes the connection between copyright lobbyists and members of Congress from California, and the connection between Hollywood and Congress on IP legislation.
On the work for hire issue, technically a professor's work should qualify as a "work made for hire" under Sections 101 and 201(b). But the long-held standard in American, non-profit colleges and universities has been to punt on this issue and cede ownership to the professors.
This is done either in the employment contract (i.e. affirming that the professor retains his or her rights), University policy, or both. There is no legal doctrine that would support this position: instead, it is something for which the American Association of University Professors lobbied vigorously a long time ago, and the schools never challenged this.
Note, however, that for-profit colleges and universities increasingly are taking an opposite stance: those institutions tend to claim copyright ownership in the intellectual work under the work made for hire doctrine.
As always, educators must read the fine print, as positions and mileage may vary.
We like all these alternative business models, and conversations thereof, but let us not forget that there were groups like Wu-Tang Clan doing unique stuff like this as far back as the early 1990s, when (unlike now) the Internet mostly was unknown to the public and it was more socially acceptable (and economically viable) to make money by signing to large labels. Wu-Tang's model wasn't necessarily tiered in the way outlined here, but its model of self-production, self-promotion, collaborative royalty earnings scheme, and spinoff groups and acts was revolutionary at the time. While we know less about her music, Ani DeFranco probably falls into this category as well.
We generally agree with the concept, but we'd adjust it a bit: historically, the music business has been about reformatting, or selling the same content in a different format. The chain generally has been 45s, LPs, eight-track tape, cassette tape, LaserDisc, compact disc.
As longtime and avid music collectors, we cannot tell you how many items we have in different formats. Miles Davis' "Bitches Brew": album, and two different compact discs (since the original "remaster" wasn't worth a damn, and we felt compelled to by the 2003 re-remaster). Some Jackson 5 albums: at least three formats.
And if the SACD format ever had taken root, we would have purchased at least a third of our collection yet again.
That model made money for the music business for a very long time. Then the industry pushed into digital with the compact disc, but failed to realize that the digital transformation relinquished control over a physical asset (and caused accounting nightmares for corporations whose business model requires a 1:1 nexus between production of goods and sale of goods).
Lobo Santo alluded to this somewhat in his post, but one issue that really has not been addressed is the net neutrality angle. In other words, how can we (at least in the U.S.) even consider a streaming solution if the ISPs are going to prioritize traffic based upon suspicion of illegal activity? Additionally, how can U.S. citizens even consider streaming as an alternative when our ISPs' top download speeds are woefully beneath what average customers receive in the EU?
Would a lawsuit against Girl Talk be bad publicity for the recording industry? Probably, but that never has seemed to matter to it.
As for the fair use argument, the doctrine seems to have morphed into a judicial assessment of transformative activity. OED defines transformative as that which has changed thoroughly or dramatically in form, appearance or character. Girl Talk uses a lot of samples (mostly in rapid-fire succession), but nearly all the works are easily recognizable and the changes come through digital tempo adjustments and overlays, and arguably not through thorough or dramatic changes.
We don't think the changes would meet the transformative tests that currently reign in U.S. federal courts. But it is a close enough question to be litigated. Besides seeming never to care about bad publicity, the recording industry also never has hesitated to litigate on a close call. Hence, our thesis (see link) that other factors may be at play.
One aspect of this issue that seems to have been missing is what responsibility authors have to preserve at least enough rights in their work so they legally can post a pre-print to their Web site, SSRN, or some other venue besides the print publication. The fact is that published work in traditional print journals does matter for promotion and tenure, and the publishers thus far have a lock on citation (i.e. their citation scheme is the "official" site, and therefore the work that corresponds to that cite is the "official" version). We have no problem with that.
But we think professors need to be more responsible and proactive about this matter. It's not enough for professors to say "Oh, the publisher won't let me publish a preprint online," or "the contract says I can't do it." (The publishers will say they won't allow it because an online version competes with the final version. That's totally bogus, especially since the professor can't get credit for the online, preprint version for promotion and tenure purposes: only the "official," citable, final version counts.)
Professors will raise holy hell if they can't get a specific type of notepad for a meeting, but they'll cower to academic editors who say they can't publish an unofficial, online preprint of an accepted article when (a) there's no competition between the two, and (b) it may take as much as a year *from acceptance for publication* for a journal to publish the final version? It's true this is a problem; it's also true that too many professors have punked out and not stood up for their work or the rights associated with it.
Re: Re: Speaking at USCO's Pre-1972 Sound Recording Hearings
To Anonymous Coward:
I'm a bit unclear about this. It seems you're suggesting that my coverage is inconsistent with Mr. Hoffman's public testimony. I did not read Mr. Hoffman's testimony prior to covering the hearing, so I don't know whether or not the statements I summarized and attributed to him in my Twitter coverage are inconsistent with what he submitted to the Copyright Office in response to the Office's RFC.
I can tell you Mr. Hoffman appeared only at one session. He made his statement, indicated he would have to leave the session before its conclusion,and did, in fact, leave the session prior to its conclusion. Mike Masnick did ask me on Twitter during the hearing whether Mr. Hoffman seemed serious in his statements. I responded I thought he was quite serious, since I was sitting nearby in the Office's relatively small hearing room.
I don't have any immediate input about the possible takings issue, other than to say that it was discussed. Mr. Hoffman was the one of the few -- actually, I believe the only one -- who raised and extensively reviewed the possibility that federalizing pre-1972 sound recordings law could impact contractual terms, thereby leading to a takings issue.
An official from the Copyright Office said the agency will post a hearing transcript later this month. While I'm confident my coverage captured the highlights and gist of the hearings, that transcript will and should be the hearing's definitive record.
Thanks,
K. Matthew Dames
Definition?
Michael:
Please define "copyright defender." The members of our editorial staff, William Patry, Rick Cotton, Jessica Litman, Jane Ginsburg, Lawrence Lessig, the MPAA, the RIAA, Ray Beckerman and the average artist who seeks compensation from creative work all could be defined as "copyright defenders." Yet, there are wide ideological and doctrinal differences among these parties.
The premise of this post (and your request to challenge the Public Knowledge proposals) depends almost exclusively upon a clear definition of "copyright defender." Unfortunately, you've left this open, so it's difficult to say whether your assertion that "copyright defenders" failed to challenge the Public Knowledge copyright reform proposals, or to defend the current copyright system is correct.
Thank you in advance.
And the video is ... where?
Seems like the first video already has been deleted due to a DMCA claim.
Interesting, but
The "copyright bubble" is an interesting metaphor, particularly during the current economic problems, fueled in part by real-estate speculation. What the writer seems to presume, though, is that changes in technology and the nature of protected works is fueling this bubble. That may be true for the last 15-20 years, but it is not necessary true for the rest of U.S. copyright law & policy, which goes back to the 18th century.
We are far from copyright maximalists, but it is sort of tiring to hear a lot of strong opinions about copyright from the so-called "copyleft" that limit the scope of any argument about copyright's relevance or viability to the technologies, works, or laws that have arisen since the mid-1990s. It's as if all started with John Perry Barlow's manifesto, and everything prior to that is irrelevant. (We just had this verbal joust with 4 people at once on Twitter, so we're still a bit amped.)
The reason U.S. copyright exists is to encourage learning. Arguably, we have gone considerably past that in scope, in term, and in judicial & political interpretation. At the same time, copyright's applicability to everyday tasks also is a very recent phenomenon. See http://bit.ly/5sX784.
But to resolve the ill fit between copyright & contemporary uses requires more than discussions about bringing about a "more enlightened copyright regime" and how fair use needs to be expanded, and wearing ignorant T-shirts that equate copyright with censorship. To even engage in any responsible discussion about copyright's issues, we think, requires a fundamental, holistic understanding of why the copyright system exists, what its purpose is, and what led us to a point where this is a real problem for too many.
The one think we think is missing most from an informed dialogue about U.S. copyright is historical and statutory ignorance. None of this stuff just began blowing up in 1995. The game is what it is because of what went down before now, and in no small part because copyright law and policy got away from existing for the encouragement of learning. It seems only reasonable and prudent that if the game needs to be changed, we all should at least know the basic outlines of the game and its history.
Another Romantic author plea
[Sigh.]
Cue in music: "Can it be that it was all so simple then?" -- Gladys Knight
This is similar to what Mark Helprin received coverage for when he had his 15 minutes of ill-informed intellectual property policy fame. To understand the theoretical basis (i.e. Romantic authorship) behind Alexie's (and Helprin's) opinions, please see the first half of our post earlier this year on Helprin: http://bit.ly/4wAZVi
And if art is returning to performance in lieu of sales, sounds like authors may be able to learn a bit by borrowing from slam poetry artists, who present their work as a form of performance.
Foreign Affairs as the New Copyright Law
Concededly, this is a shameless plug, but we think it's important for people to have some background and context for ACTA, and how we've gotten here.
Typically, it is easy for many to blame Congress for the skew contemporary U.S. copyright law takes. As we see it, the main problem with ACTA (and other trade agreements) is that Congress is not even in the picture: instead, this sort of thing is intellectual property policy-making exclusively by fiat, as determined by the executive branch. (The U.S. Trade Representative is a Cabinet-level position.)
We covered several aspects of this issue earlier this year in a three-part series:
Part 1 [ http://bit.ly/fOjpq ] talks about "harmonization" of copyright law, the role of the U.S. Trade Representative, and the end-run around Congress.
Part 2 [ http://bit.ly/BCxCq ] discusses the annual Special 301 process that occurs each spring, including "piracy" calculations. The Special 301 report conclusions are part of the evidence USTR uses to justify ACTA as a response to "piracy."
Part 3 [ http://bit.ly/6hdXeJ ] probes the connection between copyright lobbyists and members of Congress from California, and the connection between Hollywood and Congress on IP legislation.
Re: Work for Hire
On the work for hire issue, technically a professor's work should qualify as a "work made for hire" under Sections 101 and 201(b). But the long-held standard in American, non-profit colleges and universities has been to punt on this issue and cede ownership to the professors.
This is done either in the employment contract (i.e. affirming that the professor retains his or her rights), University policy, or both. There is no legal doctrine that would support this position: instead, it is something for which the American Association of University Professors lobbied vigorously a long time ago, and the schools never challenged this.
Note, however, that for-profit colleges and universities increasingly are taking an opposite stance: those institutions tend to claim copyright ownership in the intellectual work under the work made for hire doctrine.
As always, educators must read the fine print, as positions and mileage may vary.
Someone pays attention
Quote "I haven't paid much attention to the US Chamber of Commerce, but does anyone actually take them seriously when they spew nonsense like this?"
Actually, yes: U.S. Congress
Interesting
We like all these alternative business models, and conversations thereof, but let us not forget that there were groups like Wu-Tang Clan doing unique stuff like this as far back as the early 1990s, when (unlike now) the Internet mostly was unknown to the public and it was more socially acceptable (and economically viable) to make money by signing to large labels. Wu-Tang's model wasn't necessarily tiered in the way outlined here, but its model of self-production, self-promotion, collaborative royalty earnings scheme, and spinoff groups and acts was revolutionary at the time. While we know less about her music, Ani DeFranco probably falls into this category as well.
We generally agree with the concept, but we'd adjust it a bit: historically, the music business has been about reformatting, or selling the same content in a different format. The chain generally has been 45s, LPs, eight-track tape, cassette tape, LaserDisc, compact disc.
As longtime and avid music collectors, we cannot tell you how many items we have in different formats. Miles Davis' "Bitches Brew": album, and two different compact discs (since the original "remaster" wasn't worth a damn, and we felt compelled to by the 2003 re-remaster). Some Jackson 5 albums: at least three formats.
And if the SACD format ever had taken root, we would have purchased at least a third of our collection yet again.
That model made money for the music business for a very long time. Then the industry pushed into digital with the compact disc, but failed to realize that the digital transformation relinquished control over a physical asset (and caused accounting nightmares for corporations whose business model requires a 1:1 nexus between production of goods and sale of goods).
Lobo Santo alluded to this somewhat in his post, but one issue that really has not been addressed is the net neutrality angle. In other words, how can we (at least in the U.S.) even consider a streaming solution if the ISPs are going to prioritize traffic based upon suspicion of illegal activity? Additionally, how can U.S. citizens even consider streaming as an alternative when our ISPs' top download speeds are woefully beneath what average customers receive in the EU?
Our take on Girl Talk
We wrote extensively about Girl Talk in March and put forth some reasons why we think Girl Talk has not been sued:
http://www.copycense.com/2009/03/girl_talk_as_fair_use_martyr.html
Would a lawsuit against Girl Talk be bad publicity for the recording industry? Probably, but that never has seemed to matter to it.
As for the fair use argument, the doctrine seems to have morphed into a judicial assessment of transformative activity. OED defines transformative as that which has changed thoroughly or dramatically in form, appearance or character. Girl Talk uses a lot of samples (mostly in rapid-fire succession), but nearly all the works are easily recognizable and the changes come through digital tempo adjustments and overlays, and arguably not through thorough or dramatic changes.
We don't think the changes would meet the transformative tests that currently reign in U.S. federal courts. But it is a close enough question to be litigated. Besides seeming never to care about bad publicity, the recording industry also never has hesitated to litigate on a close call. Hence, our thesis (see link) that other factors may be at play.
Why don't professors actually negotiate?
One aspect of this issue that seems to have been missing is what responsibility authors have to preserve at least enough rights in their work so they legally can post a pre-print to their Web site, SSRN, or some other venue besides the print publication. The fact is that published work in traditional print journals does matter for promotion and tenure, and the publishers thus far have a lock on citation (i.e. their citation scheme is the "official" site, and therefore the work that corresponds to that cite is the "official" version). We have no problem with that.
But we think professors need to be more responsible and proactive about this matter. It's not enough for professors to say "Oh, the publisher won't let me publish a preprint online," or "the contract says I can't do it." (The publishers will say they won't allow it because an online version competes with the final version. That's totally bogus, especially since the professor can't get credit for the online, preprint version for promotion and tenure purposes: only the "official," citable, final version counts.)
Professors will raise holy hell if they can't get a specific type of notepad for a meeting, but they'll cower to academic editors who say they can't publish an unofficial, online preprint of an accepted article when (a) there's no competition between the two, and (b) it may take as much as a year *from acceptance for publication* for a journal to publish the final version? It's true this is a problem; it's also true that too many professors have punked out and not stood up for their work or the rights associated with it.
Brill says data is with Lockheed Martin & TSA can access:
http://blogs.wsj.com/middleseat/2009/06/23/clear-update-what-happens-to-your-personal-data/