James Plotkin 's Techdirt Comments

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  • On the post: Rep. Nadler Proposes The RIAA Bailout Act Of 2012

    James Plotkin ( profile ), 23 Aug, 2012 @ 11:30am

    Re: Re: Re:

    Ninja,

    I do realize that. However, it's just plain wrong to generalize ASCAP and BMI under the RIAA. They don't represent record labels...they represent artists.

    If people in the comment section want to call them the MAFIAA (grow up) all power to them!

    Mike, on the other hand, should show a little integrity. After all, he's a journalist, right? he's reporting on issues that mean something to him, right? doesn't he owe it to himself and his readers to not shover enriched BS down their throats?

    I'm sorry, but there's no excuse for this flagrantly one sided and poorly explained article.

  • On the post: Rep. Nadler Proposes The RIAA Bailout Act Of 2012

    James Plotkin ( profile ), 23 Aug, 2012 @ 11:05am

    Re: Re: Disingenuous Mike...They're not bailing out the RIAA...

    No. I stand behind what I said. Performance rights are administered by performance rights collectives (ASCAP and BMI).

    SoundExchage does administer performances of SOUND RECORDINGS (not the underlying musical works).

    Does this draft bill remunerate the sound recording makers or the musicians/song writers?

    I can't get a text of the draft bill so I can't tell. But Mike certainly hasn't made that clear. Everything I've read so far leads me to believe that it would be ASCAP/BMI administering these royalties, not the RIAA ro SoundExchange.

    If you say "performance royalty" without qualifying it, it leads one to believe your talking about performance rights on the composition. But of course Mike didn't specify that either.

    At best, this is confusing, at worst, it's disingenuous.

  • On the post: Rep. Nadler Proposes The RIAA Bailout Act Of 2012

    James Plotkin ( profile ), 23 Aug, 2012 @ 10:46am

    Re:

    yes...and the most important thing...THE RIAA HAS NOTHING TO DO WITH THE COLLECTION OF PERFORMANCE ROYALTIES!

    They have nothing to do with this bill. I think Mike knows that when he writes "RIAA" people get all flustered and angry at the world...He exploits the average persons lack of knowledge of the music business and copyright law. It's irresponsible journalism...

    Either that or he's unaware that the RIAA (in this case) has no interest and definitely isn't doing ASCAP and BMI a "favor" by lobbying on their behalf...

  • On the post: Rep. Nadler Proposes The RIAA Bailout Act Of 2012

    James Plotkin ( profile ), 23 Aug, 2012 @ 10:19am

    Re:

    ...none of this has anything to do with the RIAA...

    Mike's minions are assembling around something that is wrong and ridiculous on it's face!

  • On the post: Rep. Nadler Proposes The RIAA Bailout Act Of 2012

    James Plotkin ( profile ), 23 Aug, 2012 @ 10:18am

    Disingenuous Mike...They're not bailing out the RIAA...

    Geez Mike...

    Look, The RIAA is a non-profit organization. It isn't them getting "bailled out"...

    Also, the RIAA has nothing to do with performance rights...That's ASCAP and BMI. come on!

    On the substantive issue, I don't know that this law is a good idea. I'm also not sure that it's a bad idea.

    We have a model here in Canada where copyright collectives apply to the Copyright Board for tariffs on different types of uses. Radio broadcast (as well as Internet radio broadcast) are covered by tariffs and wouldn't you know it, our radio stations are still alive!

    The reason why this may not be the worst idea is because while imperfect (and I have my criticisms of them), collective licensing societies usually get a large part of their revenue to the artists. These royalties are accrued independent of how favorable or unfavorable your record deal is.

    Collectives like ASCAP and BMI should be able to collect for the performance of their catalog on the radio. I mean...why not?

    Why would the RIAA be lobbying for a "Performance Rights Act"? THEY DON'T COLLECT PERFORMANCE ROYALTIES!

    You have to inform yourself a little better Mike. This one is just sad...

  • On the post: The DVD Is Dying. Hollywood's Plan? Do Nothing And Cede Ground To File Sharing

    James Plotkin ( profile ), 23 Aug, 2012 @ 09:55am

    Re: Re: Tougher than we think

    I know DRM is a bad word on this site, but it really isn't evil. Unless you don't believe copyright should exist, it's illogical to hate people for using technological tools to protect their work, as long as that's all they're doing.

    I'm not defending the Sony RootKit fiasco. However, when content distributes use DRM in a responsible way and do nothing more than protect the rights they should legitimately have, I don't see a problem.

    The problem for me with reference to DRM is on a legislative level. Here in Canada, the content industry has successfully lobbied the Federal Conservative Government to include strict anti-circumvention rules. Under Canada's new copyright law, it is illegal to break a DRM for most otherwise legitimate reasons such as modification for people with perceptual disabilities. There are only 3 or 4 very narrow exceptions that have mostly to do with encryption research and reverse engineering for cross platform compatibility.

    Under the new law, it is still an infringement if you break a DRM for an otherwise lawful purpose such as Fair dealing, format shifting or time shifting.

    These are the problems I see with DRM and as I said, they're on the policy level. Responsible use of technological protection measures is not wrong and anyone who says otherwise just doesn't respect the rights of creators.

  • On the post: The DVD Is Dying. Hollywood's Plan? Do Nothing And Cede Ground To File Sharing

    James Plotkin ( profile ), 23 Aug, 2012 @ 09:27am

    Re: Re: Re: Re:

    Hahaha! shit disturbers...

  • On the post: The DVD Is Dying. Hollywood's Plan? Do Nothing And Cede Ground To File Sharing

    James Plotkin ( profile ), 23 Aug, 2012 @ 09:11am

    Re: Re: Re: Re:

    Please explain

  • On the post: The DVD Is Dying. Hollywood's Plan? Do Nothing And Cede Ground To File Sharing

    James Plotkin ( profile ), 23 Aug, 2012 @ 08:43am

    Re: Re:

    "Motherfucking Eagle trumps Marble Cake"

    Can someone tell me what that means. I think I get the marble cake bit...

  • On the post: The DVD Is Dying. Hollywood's Plan? Do Nothing And Cede Ground To File Sharing

    James Plotkin ( profile ), 23 Aug, 2012 @ 08:42am

    Re: Re: Tougher than we think

    Now we're talking! Making sure that there is some sort of share-ability function like ebooks.

  • On the post: The DVD Is Dying. Hollywood's Plan? Do Nothing And Cede Ground To File Sharing

    James Plotkin ( profile ), 23 Aug, 2012 @ 08:31am

    Re: Re: Re: Re:

    no...I think we understood each other...

  • On the post: The DVD Is Dying. Hollywood's Plan? Do Nothing And Cede Ground To File Sharing

    James Plotkin ( profile ), 23 Aug, 2012 @ 08:01am

    Re: Re: Re:

    Yeah...that sucks. Especially because I've had some great conversations on here with some seriously intellectual folks. Like John Fenderson for example. We may disagree, but we had a great conversation that was nothing but respectful.

  • On the post: The DVD Is Dying. Hollywood's Plan? Do Nothing And Cede Ground To File Sharing

    James Plotkin ( profile ), 23 Aug, 2012 @ 07:52am

    Re:

    Um...I don't think he wrote this one...just saying...

  • On the post: The DVD Is Dying. Hollywood's Plan? Do Nothing And Cede Ground To File Sharing

    James Plotkin ( profile ), 23 Aug, 2012 @ 07:39am

    Tougher than we think

    I agree 100% with the position of Mr. Pogue. Fear of innovation has hamstrung the content industry (except for video games) for some time now.

    The thing is that the pirates have so much of a head start now that it can be difficult for the content producers and distributors to assure their product is paid for. It takes the right kind of DRM/TPMs.

    The video game industry has been able to manage by incorporating online sign on DRM. You have to "log in" if you want to play. I think that model comes with it's own problems but it seems to be serving that community pretty well.

    To my understanding, the e-book industry is running well too.

    The film industry has to do something similar (or something else that will lock down their content while still allowing people to have sufficient freedom with the copies (or more accurately licenses) they purchase.

    Again, in a world where most people don't see it as wrong (regardless of legality) to pirate a film, the reticence of the film industry is understandable. That said, they're only in this position because of their lack of a will to evolve in the first place, so I think we're back where we started.

  • On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'

    James Plotkin ( profile ), 23 Aug, 2012 @ 06:34am

    Re: Re: Re: Re: Re: Re:

    "The expiration of "intellectual property" isn't the only reason why it's not real property. The very nature of the existence of copyright means that it can't be treated like real property. There's a very real distinction between copyright violation and theft. Real property can be stolen. Copyrighted material can't be. Physical media that bears a copy of copyrighted material can be stolen, but the charge is for the theft of the physical object, which can be property, rather than for the violation of the copyright."

    No one ever said IP was real property (or at least I didn't). That's an indefensible claim...because it's wrong.

    That, however, doesn't mean that it isn't property at all. You're right when you make the distinction between real property and intellectual property in that the former can be stolen and the later can't. However, that distinction is much less important than you give it credit for. Whether I steal an object belonging to you or infringe your copyright and reduce your profits, I'm gaining something to your detriment. Jefferson's famous quote about lighting your flame by my taper aside, there are similarities as well as differences.

    To say that because infringement isn't theft because IP isn't property is to assume your conclusion. You've identified a difference between real and intellectual property, yes. But again, no one was saying they were exactly the same.

    "
    When copyright expires, barring retroactive extensions by Congress, it cannot be exclusively retained by one individual or corporation or trust anymore."

    Yes, this is also true. But you fail to explain why this means that it isn't property. A lot of real or personal property is not forever. We often consume things that we own, like food. Does that mean that we don't own the food we buy at the grocery store simply because it isn't permanent or (often) transmitted by will?

    You've once again assumed your conclusion by drawing a distinction. Again, no one said IP was EXACTLY like real property. If it was, there would be no need for a distinction.

    "It's not artificial that so called "intellectual property rights"/government-granted monopolies expire. The expiration of the monopoly is a natural trait since the inception of such artificial legal constructs and their duration has only been artificially inflated by Congress to protect, among other supposed assets, Mickey Mouse."

    I don't know what you were trying to prove here but I don't think it worked. As you seem to agree, the right itself is "artificial", right? So, as much of intellectual property is statutory creation, those same statutes determine the life of those rights. The same statute that "artificially creates" the right "artificially ends" the right. If this is wrong, then you haven't made a good case out for why. either way I think this is a largely unimportant point that isn't worth arguing any further...

    As far as the taxation ans eminent domain arguments, I wasn't too sure what you were getting at.

    I know you said you've read the literature. Maybe you should read it again, or different articles. All you've done is assume two conclusions and attack a silly distinction between "artificial" and "real" rights (whatever that's supposed to mean considering real and personal property rights are also determined by law, albeit usually common law in conjunction with statute...)

  • On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'

    James Plotkin ( profile ), 22 Aug, 2012 @ 12:50pm

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

    My pleasure! The feeling is mutual and I look forward to future exchanges!

  • On the post: Oxford Professor Says Mankind Is Ethically Obligated To Create Genetically Engineered Babies

    James Plotkin ( profile ), 22 Aug, 2012 @ 12:24pm

    Opposing view

    I've discussed this with colleagues and friends before.

    I don't feel like weighing in because it's really tough and my comment would take up way too much space on this page.

    I would recommend, however, that if you're looking for a counter argument check out Professor Michael Sandel from Harvard. There are probably YouTube videos where he discusses exactly this. I read an abstract of a paper by him once. Sorry...don't have a link... :(

  • On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'

    James Plotkin ( profile ), 22 Aug, 2012 @ 12:12pm

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

    I understand completely! Well articulated!

    It seems then that your bone is less with the fact that these rights exist. Rather you're upset that this doctrine developed on it's own and has mutated into something you don't like.

    Still, trademark law and publicity rights are two different things. It's inaccurate to say that right of publicity is trademark as applied to people. Copyright law could cover trademarks...but it doesn't, because it's copyright law.

    I don't want to lecture you on law and quite frankly you seem to have a pretty good understanding as it is. There are finer points, however, that make the distinction between the two doctrines valid.

    Still, your objection to the current state of the law from a substantive viewpoint is no less valid. On your objection as to the structure of the law (trademark vs. right of publicity) I would ask that you defer to me :)

  • On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'

    James Plotkin ( profile ), 22 Aug, 2012 @ 12:06pm

    Re: Re: Re: Re: Re: Re:

    So it seems we agree on a lot.

    The only thing i take issue with is the following:

    "Copyright is supposed to serve society. I really don't see how protecting a family's ability to make money off a dead relative's legacy serves anyone but that family"

    You're clearly far too bright for this to have been genuine. Maybe it was a minor brain fail...

    Copyright IS supposed to serve the public. And you're right; in a reductionist way, the family's economic interest doesn't have anything to do with society writ large.

    But that's not what the copyright bargain implies. If a right is denied in a specific instance, and that instance becomes law, creators in general will have less incentive to create.

    This isn't directly applicable here because copyright law hasn't been invoked by the Chamberlain Estate. Right of publicity isn't quite the same thing.

    Now, if the judge throws out the Chamberlain Estate's claim I don't think people will be less motivated to play basketball. That would be an absurd conclusion. However, if a law is to be effective and predictable- so that society may base its actions on what they believe to be the state of the law- it must be evenly applied as much as possible.

    Now we're getting into the nature of common law reasoning and adjudication...Not the original topic of discussion and probably uninteresting to a lot of people reading the thread.

    I would love to continue this exchange one on one if you're game!

  • On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'

    James Plotkin ( profile ), 22 Aug, 2012 @ 11:53am

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

    Hahaha! awesome!

    Ok. now, as a Canadian, my knowledge of the American constitution and your revolution is limited (although I think I may know more about it than many Americans :)) so please correct me where I'm wrong.

    To my understanding, the US constitution was written by your founding fathers (Adams, Jefferson, Franklin, Hamilton...). The revolutionary war was over. A government was formed.

    Your declaration of independence, on the other hand, was written by people (hence "we the people") who were up until that point still British subjects.

    If I'm correct, then I fail to see how the constitution was not a law. More specifically Article 1 section 8 clause 8 (the IP clause) is law. metalaw in the sense that it is paramount over all other laws and even defines them, but law none the less.

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