Brazil's Copyright Reform Proposal: Penalties For Hindering Fair Use Or The Public Domain
from the who-can-argue-against-that? dept
Brazil has been a very interesting country to watch lately. In the past, we’ve seen that a lack of safe harbor laws resulted in Brazilian courts regularly blaming 3rd parties for actions of others, but in the last few months, it looks like Brazil has decided to really clean up its laws — and is doing so in a very smart and forward-looking manner. The first part, we mentioned a couple months ago, involved setting up much smarter safe harbors than the US currently has. Rather than US-style “notice-and-takedown” (which creates serious free expression problems), Brazil went with a “notice-and-notice” setup, that let an accused party respond before their content gets taken down. Isn’t due process grand?
But in a move that may be even more significant, Michael Geist writes about Brazil’s newly proposed copyright laws that includes penalties and sanctions for hindering fair use or the public domain through the use of digital locks or DRM of any kind. In the past, we’ve asked anyone to explain why it makes sense to make circumvention of DRM for non-infringing purposes illegal, and no one gave us a good answer. Yet, the US DMCA makes it illegal — and Canada’s current copyright reform bill would do the same.
What’s especially surprising about Brazil’s approach isn’t just that it’s allowing non-infringing circumvention (which, alone, would be nice to see), but that it’s actually adding sanctions and punishment for those who block fair use or use of public domain works through digital locks:
The same sanction applies, without prejudice to other sanctions set forth by law, to whom, through whatever means:
a) hinders or prevents the uses allowed by arts. 46, 47 and 48 of this Act [which addresses limitations to copyright including fair dealing]; or
b) hinders or prevents the free use of works, broadcast transmissions and phonograms which have fallen into the public domain.
Breaking DRM for infringing purposes is still very much illegal, but what Brazil is saying here is that locking up the public domain, or blocking fair use will not be tolerated. I cannot fathom who could possibly be against such a proposal, but I imagine we’ll start to hear twisted arguments against it pretty quickly.
Filed Under: brazil, copyright, fair use, public domain
Comments on “Brazil's Copyright Reform Proposal: Penalties For Hindering Fair Use Or The Public Domain”
The US is sorely lacking checks on an “IP” owner’s potential abuse of lawsuits. Some people (and companies) are really abusing this loophole.
Wow
I never thought I would see the day that there is a country with reasonable copyright laws. While I am in favor of intellectual property and copyright, I am apposed to restricting fair use. I also do not believe that copyright or IP should come before the actual utilization of something I purchase in the method I wish to utilize it. Case in point, I fail to see a problem with me purchasing an eBook and reading it on my laptop, Nook, and cell phone. By the same token, I fail to see a problem with being able to watch my DVDs on any device, including my computer, cell phone, iPod, etc. Now, for the real challenge, trying to get US law to reflect these changes.
Re: Wow
Why doesn’t a group of like 100 citizens go to a professional lobbying firm, give them money and a list of laws we want changed. Also tell them that if they want us to channel any campaign contributions anywhere we will. Professional lobbyists could a much better job than normal citizens since influencing legislators is their specialty and what they have experience in. They’ll know all the ins and outs, they’ll know who to give campaign contributions to, etc… We need to look for whatever firm has the best track record.
Re: Re: Wow
Maybe we should higher the same lobbyist’s the recording industry use. You have to admit that their track record in influencing IP law has been good.
Re: Re: Wow
Why don’t we start writing the laws on wikis? I’m sure many people can figure out some of the changes that might be desired and those with a bit of experience would join in.
Then we sell the job to groups that have readerships to try to get mass support behind it. This would include letter writing campaigns. I think this would be more cost effective in total impact if you could find people to roll up their sleeves.
Re: Wow
And thats the actual departure that most folks don’t realize. This has nothing to do with “starving artists” this is about power, influence and being able to force you to use something that you purchased in such a way as to limit it’s long term usefulness.
I see no moral gray area in converting an 8-track to CD and neither has the USSC. New music will have DRM making it illegal to do this and that’s injustice, clean and simple to quote Joe Biden. The act of converting it is not illegal, but violating the silly restrictions they impose on it is. It’s really just a loop hole their using to get around decency.
“Brazil has been a very interesting country to watch lately” – i figure you would think so, considering they are in the process of a very broad socialist revolution.
Re: Re:
When you have no valid argument, bring up socialism.
Re: Re: Re:
“Brazil has been a very interesting country to watch lately” – i figure you would think so, considering they are in the process of a very broad socialist revolution.”
“When you have no valid argument, bring up socialism.”
Yep, attack the person (or country, in this case) and not the argument. Of course, TAMhole never does actually address the issues anyway, he always just attacks Mike or whoever and then builds a strawman, specious arguments, and flat-out falsehoods.
Re: Re: Re: Re:
wow, you guys are really fast to pile on, especially considering you didnt even think past the ends of your nose.
brazil is undergoing a socialistic revolution. the president, warmly refered to as lula, is the leader of the ‘workers party’, and has been pushing various reforms that would be considered socialist by most, including changes to eveything from retirement funding to school access and such.
moves that are considered anti-business in favor of ‘the people’ are generally considered socialist. any time you make it easier for the people and harder for business, your leaning are clear. forcing companies to put their digital products in the clear without protection is a populist move, one that suggests ip as a social good, not an actual business.
so in the end, the ideas are socialist, and they do tend to line up with some of the other socialist views that mike brings to the discussions recently. my feeling is that mike approves of them because of their socialist leanings.
Re: Re: Re:2 Re:
Two things:
1- Why is socialism such a bad thing?
2- If anything anti-business and pro people is socialist, why do consumer protection laws exist? Would you prefer that they didn’t (since you seem to oppose socialism)?
Re: Re: Re:3 Re:
1 – socialism is a bad thing for any number of reasons. you only have to look at the great examples to realize that socialist based societies dont advance, dont have the motivation for people to advance, and generally wallow. countries that want to move ahead often move away from at least some of their socialist leanings to encourage business and innovation.
2 – consumer protection laws are there to keep consumers from being hurt by illegal acts by companies. however, when you cross the line from ‘protection’ and move on to forcing companies to do things that are not in their best interests, you cross the line.
laws which encourage and facilitate piracy are not in companies best interests, and in the long run, they are unlikely to be in consumers best interests either. the marketplace needs fairness where each side feels the desire to make a business transaction. removing rights from content producers and making widespread piracy even easier than it already is does not play well for either side, long term. short term, consumers will be pleased, long term they will discover that there isnt enough money to keep producing the content they want. its a pretty obvious problem.
then how do you fix it? does the government of brazil do like they do in canada, and put a levy on everything and artificially float the content companies? do they create other artificial monopolies in order to allow those companies to obtain money in different ways, perhaps less obvious to the consumer?
Re: Re: Re:4 Re:
“however, when you cross the line from ‘protection’ and move on to forcing companies to do things that are not in their best interests, you cross the line. “
Consumer protection laws are to protect consumers from companies that act in their best interest at the expense of consumers.
Re: Re: Re:4 Re:
But these laws are designed to promote fair use and public domain, not piracy. How is format-shifting media for personal use piracy?
Re: Re: Re:
Of course TAM sees any use of due process or intelligent application of the law as “socialism” wherever it may take place.
To be a “socialist” all you have to do is disagree with TAM!.
Re: Re: Re: Re:
which is kind funny actually since on a political spectrum he espouses extreme fascism…
Re: Re: Re:
When you have no valid argument, bring up socialism.
that’s just what a socialist would say.
Re: Re:
Sorry, IP laws are not free market capitalistic, only the lack thereof. The U.S. is not a free market capitalist society, it’s socialism for the rich.
(sorry off topic)
Two examples
“The United States currently pays around $20 billion per year to farmers in direct subsidies as “farm income stabilization”[10][11][12] via U.S. farm bills.
…
By 1997, 157,000 large farms accounted for 72% of farm sales, with only 2% of the U.S. population residing on farms. In 2006, the top 3 states receiving subsidies were Texas (10.4%), Iowa (9.0%), and Illinois (7.6%). The Total USDA Subsidies from farms in Iowa totaled $1,212,000,000 in 2006.[13] From 2003 to 2005 the top 1% of beneficiaries received 17% of subsidy payments.[13] In Texas, 72% of farms do not receive government subsidies. Of the close to $1.4 Billion in subsidy payments to farms in Texas, roughly 18% of the farms receive a portion of the payments.[14]”
“As of the end of year 2008, the average annual per beneficiary cost spending for Part D, reported by the Department of Health and Human Services, was $1,517 [23], making the total expenditures of the program for 2008 $49.3 (billions).”
http://en.wikipedia.org/wiki/Medicare_Part_D
In the U.S. drug prices are much higher than in Canada, for instance, because in Canada citizens pay for drugs themselves. In the U.S. taxpayers pay for drugs and the govt does not negotiate prices, they have to take whatever pharma charges. Citizens hardly ever see the bill. So this is basically a subsidy to the pharma industry paid for by taxpayers.
Stop complaining about other countries being “socialist” when the U.S. is not nearly anything close to a free market capitalistic society. The U.S. govt is a plutocratic society where the laws are designed to benefit the rich.
Why do you think pharma et al spends so much money on campaign contributions and lobbyists? You think they get nothing in return? What they get are free market distortions in their favor. What we have here is corporate socialism.
Every time someone tries to enter a market incumbents either use our existing (ie: patent) laws to keep them out or they lobby the govt for new laws and rulings to keep them out (ie: the hotel example, taxi cab medallions, cableco infrastructure, broadcasting, etc…). How can you say that the U.S. is a free market capitalistic society when it’s clearly not.
Re: Re: Re:
Link for first quote.
http://en.wikipedia.org/wiki/Agricultural_subsidy
Re: Re: Re:
These shenanigans have effected millions who are fully blind and half scared out of their mind to get off their asses and leave their huddled masses.
Re: Re: Re:
In the U.S. drug prices are much higher than in Canada, for instance, because in Canada citizens pay for drugs themselves. In the U.S. taxpayers pay for drugs and the govt does not negotiate prices, they have to take whatever pharma charges.
Does not compute. If the US government really bought all the drugs then they would be the monopoly customer for the pharma industry. This would give them incredible bargaining power and so prices should be lowered as a result…
Re: Re: Re: Re:
Ahem. “In the U.S. taxpayers pay for drugs and the govt does not negotiate prices,…”
Now, if you WANTED to hook your buddies up with, essentially, free money, but you wanted to obfuscate it a bit, then buying at the requested value with no negotiation is a reasonable way to do it.
Which is essentially what’s happening.
You’re right, though, if the US Govt would actually negotiate, then prices might actually fall. But all of you faux free market assholes would complain about the government having an unfair advantage or some such crap.
Re: Re: Re:2 Re:
But all of you faux free market assholes
I’m not one of them – I was just pointing out that the reason for the high prices could not possibly be the fact that the gov’t buys all the drugs(which was a surprise to me – I’m not in the US and it didn’t seem consistent with my knowledge of US healthcare)
Re: Re: Re:3 Re:
I never said that taxpayers pay for all drugs. but they do pay for a lot of them. Insurance companies also pay for many of the drugs. Again, the consumer hardly ever directly sees the bill so prices sky rocket.
Re: Re:
Oh ???
Thanks for “warning” me. I’m a Brazilian, and I hadn’t noticed that.
Hope for Canada?
As the proposed legislation up here in Canada hasn’t passed the Commons and Senate yet perhaps there’s some hope for sanity here. I’m not counting on it but I’ll hope anyway.
As it stands bill C-32 is a mess.
The Real McCoy.
If Brazil were really in the midst of a “socialist revolution” then they would dispense with this “western capitalist” notion of copyright entirely. They would approach the situation the same way that the Soviet Union did. All “copyrights” would be invested in the state.
Garaunteeing property rights and free speech are hardly indications of “socialist” leanings. They’re much more in line with “libertarians” or “federalists” or even old school “conservatives”.
Re: The Real McCoy.
Free market capitalism is socialism.
Re: Re: The Real McCoy.
Interesting argument, I suppose you could maintain that markets are regulated either by monopolies or by the government and the choice is who do you want to do the regulating.
Re: Re: Re: The Real McCoy.
You can argue that government is a product of the free market.
Re: The Real McCoy.
Garaunteeing property rights and free speech are hardly indications of “socialist” leanings. They’re much more in line with “libertarians” or “federalists” or even old school “conservatives”.
Claiming property rights over other people’s property, as copyrights and patents do, seems “socialist” to me.
Re: Re: The Real McCoy.
Claiming property rights over other people’s property, as copyrights and patents do, seems “socialist” to me.
It is neither socialist nor capitalist. It is feudal.
Re: The Real McCoy.
revolution, especially in todays economy, is something that happens slowly. even the most aggressive of the socialist players in the world (hugo chavez) is doing it piece by piece, so as to avoid an arm ed uprising in his own country. already, you can see where his moves appear to be greatly hurting the economy.
brazils president was elected to be a fast action socialist reformer, but he has worked more carefully, shifting things around and adding layers of social welfare, support, and government programs to ‘help’ the people. he realized you cannot change things in a day.
so what you are seeing is socialist leanings, which over time become the actual stance of the country, one foot in world of international business, but with the other foot seeking a solid footing on a more socialist standing.
This is progress, this is the is the new international standard, Canada.
Punishment?
Is the proposed punishment for illegal DRM the same as for breaking DRM? I think it should be, but I somehow doubt it.
“I cannot fathom who could possibly be against such a proposal, but I imagine we’ll start to hear twisted arguments against it pretty quickly.”
Mike, it’s so nice to see you set-up anyone who disagrees with you like this…
Well, here’s one “twisted”, “unfathomable” argument against the the proposed legislation… you do realize that imposing indeterminate liability for implementing TPMs that do not track the contours of copyright law *exactly* and only prevent infringing uses effectively kills business models based on closed, proprietary systems, right? No TPM can know when someone is trying to make a copy for legitimate purposes vs illegitimate purposes, and rather than accept liability for failing to permit “non-infringing” uses like fair dealing, most consumer electronics companies and media producers that use TPMs will simply not distribute their products into jurisdictions with such a regime. So bye-bye iPhone, iPod, iPad, Xbox, PS3, Wii, DVD Players, Blu-Ray Players, etc. Moreover, most digital distribution platforms and many streaming services employ TPMs and would also be potentially liable, so it’d be a good bet that access to those platforms would probably be locked out as well.
Brazil may not care about this as they already impose *very* high protectionist tariffs on imported consumer electronics and other media (as high as 60 percent!!!), so Apple and many other companies don’t sell into Brazil (see http://www.ifoapplestore.com/db/2010/03 … h-tariffs/ discussing why Apple isn’t planning on opening a store there, or http://www.gamasutra.com/view/news/2664 … system.php discussing the effect of the tariffs on videogames)… which of course has lead to a huge greay and black market in consumer electronics and massive levels of piracy and counterfeiting because the government basically makes it impossible to offer legitimate products at affordable prices. But do you really want to do this elsewhere? While I’m quite sure that “open” companies like Google would love it, as it effectively makes competing business models illegal, I don’t think that’s good for competition…
Incidentally, I also wouldn’t be surprised if Brazil’s proposed legislation is not WIPO compliant. The core obligation under Article 11 of the WCT is to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures”. Given the negative impact, I think a strong case could be made that Brazil’s proposal would be neither adequate nor effective.
Also a little surprised that the digital libertarians who frequent this site would be uniformly in favour of the proposal… if banning circumvention devices and tools is bad because it’s an unecessary market intervention, than how is effectively banning DRM any different?
Re: Re:
Well, here’s one “twisted”, “unfathomable” argument against the the proposed legislation…
NEWS FLASH
Copyright defender tells the truth for once!
Re: Re:
It’s not the governments job to provide people with business models (and that includes IP).
“most consumer electronics companies and media producers that use TPMs will simply not distribute their products into jurisdictions with such a regime.”
Bare assertion fallacy with no supporting evidence.
The fact that an entity desires a monopoly doesn’t mean it will not operate without one. It will lose revenue by not offering media products to those jurisdictions, so why wouldn’t it? That makes no sense.
Re: Re:
“how is effectively banning DRM any different?”
Having DRM is your right, bribing government officials to persecute citizens is a crime. See how that works?
Re: Re: Re:
No TPM can know when someone is trying to make a copy for legitimate purposes vs illegitimate purposes,
I couldn’t have put the argument against TPMs better myself!
Re: Re:
you do realize that imposing indeterminate liability for implementing TPMs that do not track the contours of copyright law *exactly* and only prevent infringing uses effectively kills business models based on closed, proprietary systems, right? No TPM can know when someone is trying to make a copy for legitimate purposes vs illegitimate purposes, and rather than accept liability for failing to permit “non-infringing” uses like fair dealing, most consumer electronics companies and media producers that use TPMs will simply not distribute their products into jurisdictions with such a regime.
First of all that’s a huge assumption with little evidence to back it up. Second, there is no legal right for you to use DRM that takes away my rights or hinders me from using the public domain. So if this law pushes companies to finally start relying on better business models, rather than locking users out from what’s legal, what’s the problem with that?
So bye-bye iPhone, iPod, iPad, Xbox, PS3, Wii, DVD Players, Blu-Ray Players, etc. Moreover, most digital distribution platforms and many streaming services employ TPMs and would also be potentially liable, so it’d be a good bet that access to those platforms would probably be locked out as well.
I don’t know. That sounds like a HUGE opportunity for some smart companies to clean up in a rather large market. I don’t buy for a second that those companies would leave the market.
Hell, let’s look at the situation today. As we stated, there’s already huge secondary liability problems in Brazil which have resulted in legal losses for Google, Facebook and others. Yet they’re not leaving the country.
Sorry. I don’t buy your fear mongering.
I don’t think that’s good for competition…
Wow. Allowing the public domain to exist is not good for competition? You can’t be serious.
Incidentally, I also wouldn’t be surprised if Brazil’s proposed legislation is not WIPO compliant. The core obligation under Article 11 of the WCT is to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures”. Given the negative impact, I think a strong case could be made that Brazil’s proposal would be neither adequate nor effective.
Ah, the fallback of those who have no argument on copyright: “international obligations!!” A few sites have already discussed the WIPO compliance issue, and suggest that it is, in fact, complaint. The law still does provide legal protection and effective legal remedies against the circumvention of EFFECTIVE technological matters. That’s still in the proposed law. All it does is equally protect circumvention for non-infringing uses.
I still find it hard to believe that you would suggest there’s something wrong with protecting fair use and the public domain.
if banning circumvention devices and tools is bad because it’s an unecessary market intervention, than how is effectively banning DRM any different?
It doesn’t ban DRM. But the simple fact of the matter is that this is a proposal to protect the public domain. Given that the intended purpose of copyright is to encourage a richer public domain, I have trouble understanding the complaint.
Or are you admitting that copyright no longer has anything to do with encouraging the public domain?
“I cannot fathom who could possibly be against such a proposal, but I imagine we’ll start to hear twisted arguments against it pretty quickly.”
Mike, it’s so nice to see you set-up anyone who disagrees with you like this…
Well, here’s one “twisted”, “unfathomable” argument against the the proposed legislation… you do realize that imposing indeterminate liability for implementing TPMs that do not track the contours of copyright law *exactly* and only prevent infringing uses effectively kills business models based on closed, proprietary systems, right? No TPM can know when someone is trying to make a copy for legitimate purposes vs illegitimate purposes, and rather than accept liability for failing to permit “non-infringing” uses like fair dealing, most consumer electronics companies and media producers that use TPMs will simply not distribute their products into jurisdictions with such a regime. So bye-bye iPhone, iPod, iPad, Xbox, PS3, Wii, DVD Players, Blu-Ray Players, etc. Moreover, most digital distribution platforms and many streaming services employ TPMs and would also be potentially liable, so it’d be a good bet that access to those platforms would probably be locked out as well.
Brazil may not care about this as they already impose *very* high protectionist tariffs on imported consumer electronics and other media (as high as 60 percent!!!), so Apple and many other companies don’t sell into Brazil (see http://www.ifoapplestore.com/db/2010/03 … h-tariffs/ discussing why Apple isn’t planning on opening a store there, or http://www.gamasutra.com/view/news/2664 … system.php discussing the effect of the tariffs on videogames)… which of course has lead to a huge greay and black market in consumer electronics and massive levels of piracy and counterfeiting because the government basically makes it impossible to offer legitimate products at affordable prices. But do you really want to do this elsewhere? While I’m quite sure that “open” companies like Google would love it, as it effectively makes competing business models illegal, I don’t think that’s good for competition…
Incidentally, I also wouldn’t be surprised if Brazil’s proposed legislation is not WIPO compliant. The core obligation under Article 11 of the WCT is to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures”. Given the negative impact, I think a strong case could be made that Brazil’s proposal would be neither adequate nor effective.
Also a little surprised that the digital libertarians who frequent this site would be uniformly in favour of the proposal… if banning circumvention devices and tools is bad because it’s an unecessary market intervention, than how is effectively banning DRM any different?
Re: Re:
“you do realize that imposing indeterminate liability for implementing TPMs that do not track the contours of copyright law *exactly* and only prevent infringing uses effectively kills business models based on closed, proprietary systems, right? “
If a business model is based on hindering things you were supposed to have the legal right to do then that business model shouldn’t have been allowed to exist the the first place.
Re: Re:
“if banning circumvention devices and tools is bad because it’s an unnecessary market intervention, than how is effectively banning DRM any different?”
Easy: Circumvention devices are the consumer response to DRM. Banning the circumvention devices WITHOUT also banning the offensive DRM is where the problem exists, so if you effectively ban the DRM in the first place, there’s no need for circumvention tools or their banishment…
lights please
“I cannot fathom who could possibly be against such a proposal, but I imagine we’ll start to hear twisted arguments against it pretty quickly.”
*ahem* Thank you Mike, good evening everyone.
Suppose I put out a product with DRM. It might be a game, or an encyclopedia I wrote, or a collection of artwork, or whatever. (And suppose I’ve gotten whatever permission I need from creators, owners, whomever.) Putting DRM on it might be a stupid idea, it might be annoying, it might dissuade you from buying the product, but as long as I don’t cross the line into fraud (e.g. the book I sold you turns into blank paper) I think we can agree that what I have done should not be illegal. After all, I’ve harmed no one.
But now suppose that amid all of the other things in my product, there’s something that’s in the public domain. Say, an image of the Sistine Chapel ceiling. Under this proposal, because my DRM impedes the copying of that image, I’ve broken the law.
And it gets better, in an eerily familiar way: it’s sometimes very difficult to tell whether a given entity is in the public domain or not. I could think it’s not, I could pay an artist or an agency for permission to use it, and then if it turns out I paid for nothing, I’m a criminal. Better yet, things pass into the public domain! That’s by design, it happens all the time. Heck some people, myself included, think that artists should be able to put their works into the public domain at will. So what happens when something in my product goes public? Must my DRM automatically unlock itself in order to comply with this proposed law (assuming I can predict when this will be, see above) or can I put some kind of contractual obligation on the buyer to delete it before then? Or am I in the bizarre situation of being innocent until that day arrives, whereupon I become retroactively guilty of committing a crime years before?
And what about the other end of the spectrum? We can probably agree that Monty Python and the Holy Grail is not in the public domain, but the Bayeux Tapestry is. But what about a generic drawing of a knight in armor? What about a stick figure (that doesn’t look too much like an Lascaux cave painting or Anasazi petroglyph, which would be public domain)? What’s that category below “public domain” called, and now that one is illegal and the other isn’t (I hope), how long will it take to build up some case law so that we can have a hope of knowing how to comply with this proposal?
It may sound like a good idea on the face of it, it may seem like a nice counterbalance for the excesses of IP law, but it’s really just the same mistake over again: the intrusion of law into the domain of engineering, where it causes enormous trouble and no real benefit.
Re: lights please
Don’t use DRM, problem solved!
Re: Re: lights please
The point is not whether I should use DRM, the point is whether I should be allowed to use DRM.
Re: Re: Re: lights please
No. You should not.
Unless you can describe the important ramifications of DRMing your product, and how it has any meaningful impact on your profit margins, then no, your complaints are not valid.
Saying “I don’t like the law because it doesn’t let me do something I want to” is not a valid argument.
Re: Re: Re:2 lights please
“No. You should not.“
Should not what?
“Unless you can describe the important ramifications of DRMing your product, and how it has any meaningful impact on your profit margins, then no, your complaints are not valid.“
Umm… No, I do not have to justify my business decisions to you.
‘Saying “I don’t like the law because it doesn’t let me do something I want to” is not a valid argument.’
Straw man. Next?
Re: Re: Re:3 lights please
“I do not have to justify my business decisions to you.”
As long as you are in the content business, a business built entirely upon legal shenanigans which allow you to sell an infinite good, you have to justify any business decision the public asks you too. By your tard logic, BP could just walk away from the oil spill and say it was their business decision.
Also, I like how you say “straw man. next?” because you clearly don’t know what those words mean. Your entire argument can be distilled down to – “I don’t like the law because it doesn’t let me do something I want to.” When someone accurately summarizes your ranting you can’t call it a straw man.
Re: Re: Re:4 lights please
“As long as you are in the content business, a business built entirely upon legal shenanigans which allow you to sell an infinite good, you have to justify any business decision the public asks you [to].”
What if I don’t? I’ll be locked up in the gingerbread jail? Or are you saying that I may not make business decisions you don’t like?
By your tard logic, BP could just walk away from the oil spill and say it was their business decision.
So… not answering snarky demands for explanations for a inferior product design is the same as spilling millions of barrels of crude oil into the Gulf of Mexico. And you think my logic is weak.
‘Your entire argument can be distilled down to – “I don’t like the law because it doesn’t let me do something I want to.”‘
Your distillation is inaccurate, but I despair of getting that point across.
Re: Re: Re:5 lights please
And it gets better, in an eerily familiar way: it’s sometimes very difficult to tell whether a given entity is in the public domain or not. I could think it’s not, I could pay an artist or an agency for permission to use it, and then if it turns out I paid for nothing, I’m a criminal. Better yet, things pass into the public domain! That’s by design, it happens all the time. Heck some people, myself included, think that artists should be able to put their works into the public domain at will. So what happens when something in my product goes public? Must my DRM automatically unlock itself in order to comply with this proposed law (assuming I can predict when this will be, see above) or can I put some kind of contractual obligation on the buyer to delete it before then? Or am I in the bizarre situation of being innocent until that day arrives, whereupon I become retroactively guilty of committing a crime years before?
I would say, yes, your DRM should automatically unlock. Within the US, there’s been a huge disparity, especially with DRM. You really can’t complain when people want to unlock such a fruitless security measure. It’s a reason why a lot of people are against Ubisoft’s games right now. DRM gives nothing in return and is meant to stop legal consumers from doing what should come natural. Namely, playing a CD in more than 3 computers. That’s an arbitrary limit that needn’t be done. It also encourages people to find alternative means to get songs they like or want.
Basically, how I see this law, it makes a company think twice about using DRM. It reverts the standard back to an odd equilibrium of consumer’s rights and publisher’s rights where within the US, it’s more about business rights and private rights are being suppressed.
Think about it, after 5 years is any DRM truly relevant? You can keep it but the chances of trying to hold onto that information before it’s broken after such a long period are slim to none.
Re: lights please
Two points your argument did not address. The general default position that there should be no DRM period. If that is the cause your argument is moot. Second, if there is DRM where are my rights (Under US Law) to make an archive copy of the product for my own personal use? Yes, you as the producer may become guilty of breaking the law, but I as a consumer am guilty if I exercise my rights under the law. So what this option is doing is to force the producer into taking my rights into account.
Re: Re: lights please
“Two points your argument did not address…“
Fire away.
“The general default position that there should be no DRM period. If that is the [case] your argument is moot.“
I’m not sure what “general default position” you’re talking about (maybe it’s popular opinion or the consensus of the digiterati or something), and I don’t see why I couldn’t invoke the same thing for my side, and I’m actually opposed to DRM, but even if we agree that there should be no X, that doesn’t mean that X should be illegal. (I hate racism, Japanese pop music and teenage witch movies, but I would strongly oppose any attempt to ban them.) And even if we agree that there should be a law against X, a law against X in some cases that makes it impossible to disentangle the lawful from the unlawful is a bad law.
“Second, if there is DRM where are my rights (Under US Law) to make an archive copy of the product for my own personal use? Yes, you as the producer may become guilty of breaking the law, but I as a consumer am guilty if I exercise my rights under the law. So what this option is doing is to force the producer into taking my rights into account.“
(We’re actually talking about Brazilian law, but never mind.) You are making assumptions about my DRM –and statements about US law that I am not competent to verify– but you seem to be confusing a few different concepts.
Re: lights please
Well, you just made some very good arguments as to why DRM is idiotic and will never work as intended. if your business depends on hiding things from people, stripping their legal rights and locking up public domain material as collateral damage, your business model has no right to exist.
“After all, I’ve harmed no one.”
Depends on what you mean by “harm”. Let’s say there’s something in your work that should be public domain, but is locked up due to your DRM. Now lets say you have the only source of that material. Hey presto, part of our culture that should belong to the public is hoarded by you away from the rightful owners. That’s “harmful” in my opinion.
…and no, that’s not a worst-case scenario fantasy. Look up the history of Thomas Edison’s Frankenstein.
Re: Re: lights please
“Well, you just made some very good arguments as to why DRM is idiotic and will never work as intended.“
That isn’t really the point, but thank you.
“[I]f your business depends on hiding things from people, stripping their legal rights and locking up public domain material as collateral damage, your business model has no right to exist… Let’s say there’s something in your work that should be public domain, but is locked up due to your DRM. Now lets say you have the only source of that material. Hey presto, part of our culture that should belong to the public is hoarded by you away from the rightful owners.“
Ohhhhh boy.
Re: Re: Re: lights please
If you are saying I don’t have a right to have a business plan that you don’t like, then you are claiming Thought Police powers far worse than what you accuse me of.
Actually DRM is not a business model. Copyright is a business model, DRM is a mechanism to protect the business model.
If you own some land and your business model is to charge people for access to the land that does not give you the right to block a public right of way that runs across the land. The anti-DRM law proposed to protect the public domain is exactly analogous to laws that limit landowners rights to protect their property. Landowners are generally prevented from blocking public rights of way. They can of course block access to other parts of their property but even there there are limits, relating to public safety.
Re: Re: Re:2 lights please
“If you own some land and your business model is to charge people for access to the land that does not give you the right to block a public right of way that runs across the land. The anti-DRM law proposed to protect the public domain is exactly analogous…”
If I own a copy of a work in the public domain, I am not required to show it to anyone. I am free to lock it up, to show it to some people but not others, or even to destroy it. In this analogy, does the land correspond to the Sistine Chapel ceiling itself, or my photo of the ceiling? Or the picture on the ceiling, independent of the medium (the actual plaster and paint, or paper and toner)? Is the right of way your right to duplicate your photo of the ceiling? Or my obligation to give you a copy of my photo on demand? Is the tollbooth my policy of not letting people into my house to look at my photo? Or my DRM on the copy that I sold you? Or a draconian law that forbids people to duplicate photos of the ceiling without my permission?
The analogy is interesting, but I wouldn’t call it exact.
Re: Re: Re:3 lights please
In this analogy, does the land correspond to the Sistine Chapel ceiling itself, or my photo of the ceiling? Or the picture on the ceiling, independent of the medium (the actual plaster and paint, or paper and toner)? Is the right of way your right to duplicate your photo of the ceiling? Or my obligation to give you a copy of my photo on demand? Is the tollbooth my policy of not letting people into my house to look at my photo? Or my DRM on the copy that I sold you? Or a draconian law that forbids people to duplicate photos of the ceiling without my permission?
In the analogy a copy of a work corresponds to a journey across a piece of land. It could be a journey across a piece of private land (copyrighted work) or on a public road (public domain). A public right of way on private land corresponds to fair use rights of a copyrighted work.
If you own a copy of a public domain work you are not obliged to make it available to anyone else – just as you are not obliged to give a lift to any hitchhiker just because you are on the public highway.
However if you own the rights to a copyright work then you are obliged to make provision for fair use – and the eventual expiration of copyright – just as a landowner is obliged not to block rights of way.
Note that this applies only to published work. The owner of unpublished work has no obligations whatsoever. The obligations only arise when you sell a copy of the work without transferring the copyright to the buyer. At that point you avail yourself of a legal protection that prevents the buyer from doing what he/she wishes with the copy. Copyright law sets bounds to that legal protection.
Note that, if Brazilian copyright law works like most others, then the restrictions on DRM would only apply when you made a sale without transferring copyright. Thus you could get around the DRM ban by giving up your copyright protections and relying on the TPMs alone. Of course if anyone broke your TPMs (which would enjoy no legal protection) then you would lose out.
Re: Re: Re:4 lights please
I’m sorry, this is just not a good analogy. For one thing, an act (a journey) corresponds to an object (a copy of a work) which always makes things difficult. Also there’s no sensible analogue for giving a copy to someone else, or duplicating one copy of a work instead of another copy of the same work (a very important distinction). And I’ve never heard of this “obligation to make provision for fair use” before, and don’t have a clear idea of what it is.
Re: Re: Re: lights please
Your example of locking up public domain material is fallacious by definition. If it is in the public domain, you CANNOT lock it up. Whether or not you placed A COPY of it behind DRM is not relevant and could be addressed very simply in court, although not via an affirmative defense. If your concern is that you could be taken to court at all, welcome to America where people get taken to court for legitimate circumventions around DRM and legitimate fair use.
If you are trying to argue that you might lock up something in the public domain that is not available anywhere else in the public domain, I have two questions: a) how could that possibly be a realistic example since for this to be true it would have to be years after its creation, and b) shouldn’t that be illegal anyway?
Addressing #6 above, yes it should be illegal, because you are locking up content that society has said you may not.
Re: Re: Re:2 lights please
I honestly can’t follow your argument. If material in the public domain CANNOT be locked up, fine, there’s no problem (it was PaulT’s phrase, not mine). If you mean something else then you must distinguish between a work and a copy of the work, otherwise you’re just talking nonsense.
(As for “yes it should be illegal”, as I explained that’s irrelevant, since the proposed law would not forbid it.)
Re: Re: Re:3 lights please
The restriction against DRM on existing public domain works is unnecessary because, given the right to break that DRM (already granted elsewhere), and given that all DRM is breakable such DRM would be pointless.
The real point is that it places a requirement of DRM to somehow expire along with the copyright. This would seem to make DRM even more impractical than it already is. Never mind, I’m sure the anti-circumvention law will stop people changing the date on their computers.
Re: lights please
“After all, I’ve harmed no one.”
and by breaking the DRM I’ve harmed no one.
Re: Re: lights please
and by breaking the DRM I’ve harmed no one.
Agreed. And you’ve entirely missed the point.
Re: lights please
Actually you just made quite a good argument for DRM to be illegal.
Your “problem” could be solved by making DRM and copyright law mutually exclusive. This would mean that works protected by DRM would be protected only by the DRM. There would be no anti-circumvention protection and anything “liberated” from DRM would enter the public domain. Then you could protect your work (or even a public domain work that you distribute) with DRM OR you could protect it with copyright – but not both. Since DRM basically doesn’t work I can’t see many people using it.
The real point is that DRM is not used to protect work – rather it is used to enable lawsuits via the anti-circumvention laws that most states seem to have now.
These lawsuits are almost always directed activities that would probably be legal under copyright itself.
That is why we dislike DRM so much, it essentially allows a distributor to get away with writing his own version of copyright law.
Re: Re: lights please
‘Your “problem” could be solved by making DRM and copyright law mutually exclusive. This would mean that works protected by DRM would be protected only by the DRM. There would be no anti-circumvention protection and anything “liberated” from DRM would enter the public domain. Then you could protect your work (or even a public domain work that you distribute) with DRM OR you could protect it with copyright – but not both.’
So… I point out that a proposed law would be bad, and your solution is to not pass the law– and also eliminate something unrelated (i.e. copyright) that you don’t like.
Re: Re: Re: lights please
So… I point out that a proposed law would be bad, and your solution is to not pass the law– and also eliminate something unrelated (i.e. copyright) that you don’t like.
I don’t disagree that the proposed law contains much that is impractical or even self contradictory. Where we differ is that I think the current laws in the US and EU concerning TPMs are also impractical and self contradictory.
I didn’t propose eliminating copyright law – I simply said that it would make more sense if copyright and TPMs were alternatives.
The underlying problem is that TPMs don’t work – for fundamental technical reasons – but certain rightsholders would like them to work. As a result they tried to bolster them by giving them extra legal protections. However these legal protections just add to the problems – and the Brazilian attempt to “balance” them just creates another set of contradictions.
Underneath all of this is that fact that copyright enforcement is now visibly impractical (it was already invisibly impractical from about 1965) .
On the Watchlist for worst IP infringement or whatnot
How long before they’ll top the list of worst IP offenders on the planet. They’ll be placed above Canada, China, and whoever usually tops that list. They’ll site some nonsense about whatever, but we’ll all know it is because of this law.
sorry folks,
but to really understand the rEVOLUTION thats is going on in Brazil, what means to be a Brazilian, and what a Brazilian wants. First, forget everything you know about IP, copyrights, the 200+ years old US constitution and US culture. (duh)
second, u have to know what malandragem means (just wikipedia it! its a great intro). Now, after understanding what malandragem means, I hope you people can understand samba, why brazil is a great football team (sorry, i mean soccer) and how we were the first to “steal” HIV IP, give those pharmaceuticals for FREE for EVERY HIV+ and still get away with it on the grounds of humanitarian necessities. And now, the brazilian HIV prevention program is a model to the world, with india and a handfull of african country “stealling” those HIV IP in the same grounds Brazil did.
I can guarantee to all techdirt readers, we brazilian are more afraid of Hugo Chavez then we ever were of Bush Jr or any other world leader, and we still are. The last thing we want is another dictatorship of any kind in south america. Nevertheless, we have great business deals with China (oh, like US does!!)
This reform was long overdue. For a couple of years, we are switching our government OS system away from MS into linux (and keeping all IP developed in the process within brazil, not redwood). If needed, more international IPs will be violated and this law will provide a proper base for this rEVOLUTION to happen more smoothly.
My last words, most Brazilian are totally clueless about IP, copyrights and all this mess. Also promesses of free stuff makes a great political slogan! just google bolsa familia and you can see why Lula (our president) still have 70% approval rate after 7 years! I also guarantee some republican will have terrible nightmares for weeks about it 🙂
sorry folks,
but to really understand the rEVOLUTION thats is going on in Brazil, what means to be a Brazilian, and what a Brazilian wants. First, forget everything you know about IP, copyrights, the 200+ years old US constitution and US culture. (duh)
second, u have to know what malandragem means (just wikipedia it! its a great intro). Now, after understanding what malandragem means, I hope you people can understand samba, why brazil is a great football team (sorry, i mean soccer) and how we were the first to “steal” HIV IP, give those pharmaceuticals for FREE for EVERY HIV+ and still get away with it on the grounds of humanitarian necessities. And now, the brazilian HIV prevention program is a model to the world, with india and a handfull of african country “stealling” those HIV IP in the same grounds Brazil did.
I can guarantee to all techdirt readers, we brazilian are more afraid of Hugo Chavez then we ever were of Bush Jr or any other world leader, and we still are. The last thing we want is another dictatorship of any kind in south america. Nevertheless, we have great business deals with China (oh, like US does!!)
This reform was long overdue. For a couple of years, we are switching our government OS system away from MS into linux (and keeping all IP developed in the process within brazil, not redwood). If needed, more international IPs will be violated and this law will provide a proper base for this rEVOLUTION to happen more smoothly.
My last words, most Brazilian are totally clueless about IP, copyrights and all this mess. Also promesses of free stuff makes a great political slogan! just google bolsa familia and you can see why Lula (our president) still have 70% approval rate after 7 years! I also guarantee some republican will have terrible nightmares for weeks about it 🙂
Re: Re:
Don’t forget who invented the airplane!
Re: Re: Re:
Stringfellow invented it – Bleriot made it work.
3 Cheers for Brazil
Recognition of Copyright as a tool for censorship and control by large conglorates and the catastrophic position the human race will find itself in if it is not put in check, may be something Brazil has insight into before other nations.
Yes. Brazil is a socialist dictadorship; Brazil have more than 190 million chipms (and we all live in the trees).
Also, we still don’t have broadband internet, neither eletrical light and half of us die every single year because there are lot of crocodiles here (and crocodiles eat chimps).
Lula, our president, is a chimp using a mask, and he was sent by Satan to undermine the western way of life.
——————
But thanks Satan you did not sent Bush or any tea party freak here. We, brazilian chimps, are glad for this.
It’s so clear what’s happening all around the world. The world is too old, and people don’t read. The following text by Plato has 2390 anos.. lmao.
The dialectical forms of government
Plato spends much of the Republic narrating conversations about the Ideal State. But what about other forms of government? The discussion turns to four forms of government that cannot sustain themselves: timocracy, oligarchy (also called plutocracy), democracy and tyranny (also called despotism).
Timocracy
Socrates defines a timocracy as a government ruled by people who love honor and are selected according to the degree of honor they hold in society. Honor is often equated with wealth and possession so this kind of gilded government leads to the people valuing materialism above all things.
Oligarchy
These temptations create a confusion between economic status and honor which is responsible for the emergence of oligarchy. In Book VIII, Socrates suggests that wealth will not help a pilot to navigate his ship. This injustice divides the rich and the poor, thus creating an environment for criminals and beggars to emerge. The rich are constantly plotting against the poor and vice versa.
Democracy
As this socioeconomic divide grows, so do tensions between social classes. From the conflicts arising out of such tensions, democracy replaces the oligarchy preceding it. The poor overthrow the inexperienced oligarchs and soon grant liberties and freedoms to citizens. A visually appealing demagogue is soon lifted up to protect the interests of the lower class. However, with too much freedom, the people become drunk, and tyranny takes over.
Tyranny
The excessive freedoms granted to the citizens of a democracy ultimately leads to a tyranny, the furthest regressed type of government. These freedoms divide the people into three socioeconomic classes: the dominating class, the capitalists and the commoners. Tensions between the dominating class and the capitalists causes the commoners to seek out protection of their democratic liberties. They invest all their power in their democratic demagogue, who, in turn, becomes corrupted by the power and becomes a tyrant with a small entourage of his supporters for protection and absolute control of his people.
Ironically, the ideal state outlined by Socrates closely resembles a tyranny, but they are on opposite ends of the spectrum. This is because the philosopher king who rules in the ideal state is not self-centered but is dedicated to the good of the state insofar as the philosopher king is the one with knowledge.
Information
The reality is that information ultimately finds a way to be free so that it can be used and shared. Its fruitless to attempt to wall it off, hide it, or try to control it. Sure, there is a desire to control it, to use it to take advantage, use it to make money, but ultimately it finds a way to be free to be rediscovered. Entropy increases, society has no choice but to live with it. It is better to look at it as an essential part of science and scientific progress so that it can be added to and improved upon for the benefit of all.
Might sound unrealistic, but in reality its the only path to both intellectual and social freedom and breaking the bounds that confine humanity to repeat the mistakes of the past.
Sadly, too many can’t let go of their sense of self and of their fear enough to recognize it. As a result all will continue to be trapped into a vicious cycle of greed and theft of one form or another.
Nonetheless, social evolution will sort out the differences among societies as to how they view, attempt to control, and use information. There is no one model, but some models will surely dominate over others. As one looks at Brazil’s economy rise and America’s fall, its foolish for American’s to think that they might not have something to learn from Brazil’s approach. Perhaps, the path taken by Brazil will temper America’s recent fixation on top down control and security at all costs. Only time will tell.
Gee, I can't possibly fathom...
…who could possibly be against theft.