Melissa’s Techdirt Profile

kiroth6

About Melissa




Melissa’s Comments comment rss

  • May 22nd, 2011 @ 9:37pm

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

    "Hence the part where I said, "(though it's technically not piracy if it's authorized by a CC licensed).""

    Sorry if it seemed like I misread that, I merely wanted to emphasize that point.

  • May 22nd, 2011 @ 9:34pm

    Re: Re: Re:

    "Under his model, it was actually possible to pay back his losses. AFAIK, most major label artists are hundreds of thousands of dollars in debt due to advances, etc. "

    Its also possible to pay back through going through the label as well. As I could find no studies on a cursory search that can confirm or deny your statement, please let me know which source you are using.

    Assuming that there are at least a significant number of label artists in debt, we still need to look at the factors that cause that debt. Is it actually influence of the label, lack of personal financial planning, lack of a proper business plan or a mix of multiple factors? Additionally how much does the support provided by the label help in the time it takes to build a following and how much does it save them in costs compared to seeking out marketing, legal support and connections on their own?

    These are the things that artists need to be thinking of before they make the choice, depending on where they are in their career and what they want to do with their music.

    That said Mr. Coulton should be lauded and congratulated on his success in making a decision that allowed for his own success. But, it is still only an option as I have pointed out many times.

    For certain kinds and styles of music, there are definitely advantages in getting a support system such as one provided by a label, independent or major. There are still artists who use this model right now who are still in debt. Under both models you still have the threat of debt and no guarantee of success.

  • May 21st, 2011 @ 12:12pm

    Re: Re: Re: Re: Re: Fair Use

    "Not true. They do not need to be based on the four factors. This is a myth."

    I'm going to assume that you are interpreting that statement to mean that I believe those factors are exclusive. If my assumption is right then I will clarify this issue. In the United States, to have an affirmative defense in fair use, the analysis must have some basis in section 207 and its four factors.

    Even in Harper v. Row publishing, where the supreme court said that the factors were not exclusive they immediately after emphasized that fair use was "especially relevant in determining whether the use was fair" Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560 (1985)

    In other words, unless you can show that this is some sort of special case which makes those four factors irrelevant to the facts, the four factors are always going to be the initial basis for analysis.

    If I am incorrect in my assumption, please provide the basis for this argument.

    "Well, if we want to get into a Constitutional debate, it helps to understand the original intentions, and there is significant evidence that the founders meant the "exclusive right" in Art. 1, Sec. 8 to mean exclusive right to profits, not exclusive right to use. I don't necessarily agree with that interpretation, but am just pointing it out.

    Also, it should be pointed out that what they meant by copyright law was SIGNIFICANTLY different at the time."

    Even if we assume that this was the original intention of the founders, this interpretation still supports the right to control the work under copyright. Jacobsen v. Katzer noted that public licenses could be enforced under copyright law because their compensation for the issuance of license to modify and distribute the work was the requirement that licensees offer a similar public license for their resulting works.

    Furthermore, the rights to profit for the work is solely based on their right to control the work and especially the quality of their work. Where a content creator has a large following the value of works under the copyright usually have a remarkably decreased value if the creator loses quality control over their work. Given the cost and time required in the development of a project, investors would be even more reluctant to back a content creator's project if someone else has done the exact same thing. It doesn't even matter if it is better than the other project because the competition would still decrease profitability. Not to mention the confusion that this would create in the marketplace.

    However, assuming you do not agree with this interpretation a plain reading of the statute still mandates that a balancing test be used. To solely emphasize one part and ignore the other would be cherry picking.

  • May 20th, 2011 @ 8:23pm

    Re: Re: Re: Re: Fair Use

    Sorry my bad, make that closer to $50k for going to trial.

  • May 20th, 2011 @ 8:16pm

    Re: Re: Re: Fair Use

    Without any fear of reprisal? What about the potential bad press and the ballpark $15k cost of going to trial?

  • May 20th, 2011 @ 8:11pm

    Re: Re: Re: Fair Use

    "This is not really accurate. There are many tests for fair use. The analysis is supposed to use, but IS NOT LIMITED TO, the four questions."

    All still based on 17 U.S.C. 107 and its four factors. That's what I'm talking about. That's the only statutory law that applies. The facts of the case may show that certain factors apply more to the situation than others but at the heart of it its still a balancing test between harm and expression.

    "Of course, some people believe that the "no law" part of the First Amendment didn't leave any room for any "balancing," in that it can be simply interpreted to mean "no law.""

    No law abridging the freedom of speech. The question is if the alleged infringement is actually defendant's speech. If it's not this argument doesn't apply at all. Someone else's expression is not your own speech. The very reason that we need a case by case analysis of the facts is to determine if the action in question is actually speech. We have laws that make asking someone to murder your wife on facebook illegal, the same goes for is slander, libel or fraud. In all those situations we have one or more subjective tests to determine if the conduct is protected as free speech.

    If you are going to take the strict textualist approach you already know that you're going to run afoul with Congress's express power Art. 1 Sec. 8 "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The fact is that they decided to keep that in even after including the first amendment which gives both sections significant weight and necessitates a balancing test to determine which interest should win out. If you're going the strict textualist route you can't cherry pick that parts of the constitution that you want to apply.

  • May 20th, 2011 @ 11:32am

    Re: Fair Use

    Really? Its just a balancing test with four simple questions. It's not like conflict of law selection that have 7 different factors that vary based on the state your in.

    When you are dealing with free speech the issue is always going to be subjective because it must deal with the individual speech. The subject matter necessarily requires a balancing test that deals with alleged infringement on a case by case basis.

  • May 19th, 2011 @ 1:00pm

    Re: Re: Re: Re:

    If you don't mind, I'd like to take a crack at this argument. I think what buck lateral was trying to say is that while Mr. Coulton's success through granting a public license of certain rights under copyright should be lauded and encouraged, this does not mean that we should necessarily force everyone into the same model.

    I made an earlier example of a scenario with a graphic designer and a small business man. Someone who works primarily on commissions would not be benefitted by granting a public license of their work since their content is tailored to a certain purpose. The value of his work depends on the fact that it is unique and that he can sign over the rights of his work for someone who wants to use it in business.

    That is not to say that the artist cannot make other works which he can choose to put under public license to market his skills, but it is not useful for every creation.

  • May 19th, 2011 @ 12:40pm

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

    ""Negotiate a more reasonable fee or actually enforce the waivers and the problem could be solved pretty handily."

    Easier said than done. If it were that easy then all these venues would likely have done it a long time ago."

    Given the fact that there are still plenty of restaurants that do live music and clubs that feature various bands, I'm pretty sure they've already figured that one out. I'm not saying that SoundExchange and other organizations don't deserve some push back on their rates to make sure they are market competitive. And its a lot more feasible than throwing out the entire system and starting from scratch.

    In order to claim abolition of any standing law you actually have to prove that your defense actually exists. Desk pounding doesn't make a right to broadcast out of thin air and frankly I find that the conspiracy theorist tone of your reasoning is getting tiresome.

    If you want me to cite case law on the reasoning behind copyrights I'll be happy to do so, but I doubt you'd want to read it. You can also look at the floor debates for the amendments of the copyright act within the last 40 years.

  • May 19th, 2011 @ 12:23pm

    Re: Re: Re: Re:

    The reason is probably illustrated best in a recent problem experienced by an associate of mine.

    A recently graduated graphic designer is in discussions with a small business for designing a logo for the small business. The graphic designer shows the small businessman some examples of what he can do for the small business and discusses his rates. The small businessman says he will think it over, but instead copies the graphic designer's work and uses it for his own business without compensating the graphic designer for his work.

    Given the quick deadlines and income restrictions, it is highly unlikely that the graphic designer would be able to wait the 3+ months it takes to obtain a copyright registration before he shows a prospective client his work. It would also be cost prohibitive to require registration every time he does a piece of work.The business man will not want to pay the designer until he finds a logo that he likes.

    Consider also, that an independent musician wants to put his own music up on youtube to reach a larger audience, but is unaware of contract or copyright protection requirements. The advertising arm of a big company likes the song but decides to change the singer and then uses it in their marketing campaign which becomes widely successful. Without automatic copyright protection the song is considered public domain and the company is not even required to credit the artist for their original work.

    It is easy for the copyright owner to simply decline to enforce their copyright or waive certain rights under CC or other public licenses. Therefore we make copyright protection automatic to prevent such abuse.

  • May 17th, 2011 @ 7:43pm

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

    "Artists use those venues to perform, make money, and gain the necessary recognition to make their money. If the venues stop hosting artists due to these threats then the artists suffer to."

    This argument is still about the threat to artists and not venues. Hence my argument about making an informed choice to avoid labels and unions to work as Johnathan Coulton did.

    You keep arguing that for some reason or another that the government or corporations are evil or corrupt simply because of regulation through broadcast licenses or copyright protection. If I may use your own your own words against you, just because a hammer can be used to kill does not mean we should ban hammers.

    However we should regulate the use of hammers to do illegal things. That's there is a difference between assault with a deadly weapon and merely assault. The license process allows the government to regulate the use of the airwaves and to prevent unauthorized persons from impeding on licensed frequencies which could cause confusion in communications. We should also utilize the defense of copyright misuse where a license holder seeks to use copyright beyond its intended use. However this is a bit like using apples to compare to oranges.

    "Our legal system does this to them on purpose because it wants to ensure that musicians must go through monopoly channels to gain recognition."

    Um. No actually it doesn't. They don't have to go through any channels their copyright is automatic. If you're arguing about marketing, the entire point of the main article is that people can gain recognition and succeed without going through the traditional methods. You'll also notice that it was all perfectly legal.

    "and what gives them the right to prevent me from broadcasting on public airwaves? Their military power?

    My right to broadcast exists outside of government. Governments don't exist in nature. My right to broadcast is a natural right."

    That would be lovely but Hobbes never discussed a natural right to broadcast. It is also not found in the Bill of rights or anywhere else in the constitution. But the government's right to regulate the use of interstate resources is. The State governments also have the explicit right to act as representative of public interests. You argue that governments don't exist in nature, but neither do rights, so even that argument is moot.

  • May 17th, 2011 @ 6:46pm

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

    If it is a public resource then the constitution gives the government the right act where it is concerned as a representative of a public. Like liquor licenses, just because you can access liquor after a certain age does not mean you have the right to sell it freely. Unlike freedom of speech, freedom to broadcast on public airwaves is not found anywhere in the constitution. You can apply and qualify to broadcast but you as an individual do not have an inherent right to broadcast.

    As you said just because hammers can be used to commit murder doesn't mean we should ban hammers. The same argument goes to copyrights and broadcasting licenses.

    The theory behind copyright is sound and is still currently applicable. Our problems are not based on the rights themselves but by the methods used in the name of copyright to enforce them. Instead of painting a picture of evil copyrights and corporations, we need to take a look at the entire situation in front of us and target the things that actually are a problem.

    "I wouldn't have a problem with FCC regulations, but it tends to be that the people in charge don't know much about the technology they're in charge of. Hell, you have to be assigned to be in charge of the FCC or FTC. How does that add up to having any kind of knowledge of spectrum use or broadband regulation?"

    If the entire problem can be simply solved by a good HR director in the FCC then we put pressure. We as members of the public and non-profit organizations supporting privacy and competition should lobby and push to make sure that is a complaint regularly heard by the FCC to make those decisions and to hire the right kind of people.

  • May 17th, 2011 @ 4:51pm

    Re: Re:

    Um who says you can't? You could always choose to dedicate your work to public domain. If you haven't already given the rights to something else there's nothing that stops you from dedicating it to the public domain.

  • May 17th, 2011 @ 4:23pm

    Re: Re: Re: Re: Re:

    Funny thing is though, collection companies aren't the ultimate word on the delegation of liability through contract.

    And as I stated earlier, your problem still isn't copyright law, it's the fee that the union charges and their methods of collection. That means that the pressure should be placed on the union itself and its collection methods and not on the government to change and make a new law.

    Negotiate a more reasonable fee or actually enforce the waivers and the problem could be solved pretty handily.

  • May 17th, 2011 @ 3:51pm

    Re: Re: Re: Re:

    "Ideally, maybe, realistically, no. They have been known to threaten many venues who want to host independent artists and many of those venues have been known to avoid doing such as a result. Here is a start. ..."

    I'm familiar with the article. However your argument was threatening venues not the artists. And as much as they can bark and threaten, defendants can always up the ante by showing lack of contract, suing for attorney fees and fines based on frivolous lawsuit if they actually press lawsuit without standing.

    For musicians its a matter of knowing what you're getting into before you sign up. There are lawyers who help independent artists pro bono or set up conferences to keep musicians informed of their rights.

    "These practical problems only exist because the government wrongfully grants monopoly power over many of the information distribution channels required to distribute/market your content over to large corporations. "

    Your entire premise is that if someone didn't actually operate and maintain this distribution channel then everything is fine.

    Do you have any idea how much it costs to conduct a marketing campaign? I do. On purely online distribution, artists can get away with investing under 10k before they can expect to see a profit. Paper campaigns cost even more. That's not even counting in the cost of labor for graphic designers.

    If you can manage it, that's great, but not everyone can.

    Labels can still offer an advantage because they have an infrastructure already in place and they already have connections with a talent pool, venues and a good crew. There are negative aspects for sure, but to say it would never be useful is a misleading.

    The important thing is to be aware of what your getting into before you get into both.


    "It's no different than the many many other monopolies that the government grants. There is absolutely no good reason to grant them, they are granted for political purposes that are selfish in nature."

    Preserving law enforcement frequencies, air traffic control frequencies, and other public service frequencies is entirely selfish then I take it. Problem is there is actually a limited amount of radio frequencies for a given area and I really doubt state or federal government wants to see them used for criminal purposes or to conduct fraud. So, yes there is a reason to require a license to these airwaves.

    "I have just as much a right to broadcast on public airwaves as the govt imposed monopolists. They have no right to take that right away from me. They have no right to prevent competitors from using existing cableco infrastructure and from building new cableco infrastructure. But they use the govt to wrongfully deny us our rights."

    They can't take away a right you never had. Unless you've been approved and granted a broadcasting license, you never had the right. Unless you built or maintain the infrastructure, you don't even have claim in it. Licensed broadcasters are still subject to getting investors to pay for upkeep, subject to FCC regulations and other liabilities under federal and relevant state law.

    "The govt grants these copy protection monopolies for the same reason that they make them last insanely long."

    I think you're confusing copyright with broadcasting licenses. The rights and requirements of one are completely different from the other. The duration of copyright has nothing to do with broadcasting licenses.

  • May 17th, 2011 @ 2:21pm

    Re: First Ammendment

    If it actually is black and white infringement its not your speech. It doesn't fall under freedom of speech if it doesn't include any of your own actual expression. There's is a very broad fair use defense that specifically protect use of copyright that falls under freedom of speech.

    It doesn't impede the first amendment, it doesn't fall under it at all.

  • May 17th, 2011 @ 1:30pm

    Re: Re:

    Do you honestly think the big bad corporations are the only thing preventing certain permissibly licensed content from succeeding outside the internet? A valid license is an absolute defense against allegations of infringement so its not exactly the law that is preventing things.

    What you're asking for is that the government actively abolish independently established trade unions and if you don't think that is going to cause so major problems you're living in a dream world.

    Additionally, the only way one of those unions can have standing to even start an expensive lawsuit is if the restaurant or other type of venue already agreed to use artists in the collection society. There's nothing that stops a venue or event from hosting independent musicians under federal law without a prior existing agreement.

    The funny thing is its not the statutory law that required musicians to go through a publishing company, it was the practical problems of the industry itself. Marketing is still a big problem for individual artists and its still a benefit that a label can bring. It's the collective contracts between industry actors and the traditional way things worked. The recording industry is slow to change from the one size fits all model, that's a given. They don't want to change from what's worked.

    For all the things that you are complaining about, its not copyright law itself that are causing the problems but rather the way the industry works itself. If you want these companies to change the way they work, you have to give them the incentive to change. If you treat them as your enemy, they will act in kind.

  • May 17th, 2011 @ 11:55am

    Re:

    And under his model he was just in debt to someone else or had his wife supporting him for a certain amount of years till he made enough back to recoup his losses.

    It's a risk either way. This one just paid off for him.

  • May 17th, 2011 @ 11:51am

    Re: Re: Re: Re:

    It's not even technically piracy if authorized under the terms of a license. It isn't piracy or infringement at all. Copyright grants content creators the right to parcel out rights to their work and that is exactly what he has done.

    It's more accurate to say some people will pay in certain situations. While this is one anecdotal story of a success there are also others of failure or that struggle using the same model. Most small and starting bands have adopted this models, but there are a large majority that don't meet this kind of success. Right now this may work well for them.

    However, it should be the content creator's decision to license as they see fit and to succeed and fail accordingly. It should never be in the hands of a third party without the content creator giving their initial consent.

  • May 15th, 2011 @ 3:10am

    Re: Somewhat perplexed

    The theory is exactly the same as one based on a complaint of fraud or trade secret misappropriation. Both concepts have civil and criminal aspects.

    I'm not exactly sure where your argument regarding presumption of innocence plays in. The AG is required to establish the elements of the cause of action before the order can be given similarly to that of any other injunction or restraining order. Just as a court may issue a restraining order or injunction based on establishing the elements of fraud, it stands to reason that it should be able to issue an order regarding infringement after establishing the existence of infringement under the requirements of the law.

    The idea of an exclusive minority means that it is an inherently defined group, however since anyone can become a copyright holder arguing that this concept applies to copyright does not connect.

    I see a lot of pejorative concepts such as censorship, "we the people" and freedom of speech being thrown around but frankly there's a fatal disconnect in the reasoning. It also seems to overlook the fact that the inherent idea of protecting the rights to a creation is explicitly protected by the constitution.

    The inherent problem is not in the concept of intellectual property itself but rather as to how the courts fine tune its analysis of fair use and similar exemptions from infringement. However, as shown in the Righthaven rulings, MDY v. Blizzard and other such cases this is already being done.

More comments from Melissa >>