The Maximalist Future: Be Sure To Pay Off Your Lawsuits Before Heading For The School Bus

from the it's-a-stretch-to-call-this-fiction dept

There’s a movement underway to remove all control from your life and turn it over to others. It’s not an organized movement. There’s no figurehead leading the way, but between the government, the legal system, various rights holders and their offshoots and professional patent thugs, a steady removal of individual rights and personal ownership is taking place.

With rare exception, it’s being done on an incremental level. The government has been increasing its control over all aspects of life, whether it’s what your children eat or which products and services you can use. Various agencies called into existence by an unprecedented terrorist attack nearly a decade ago have broadened their areas of control, without fear of oversight or reprisal. The legal system is no better, endlessly entertaining frivolous lawsuits and vindictive show trials, when not playing "Home Field" for various industries and special interest groups.

Various industry groups have done the same, aided by this same government and indulged by the legal system. Between the RIAA, MPAA, ASCAP, BMI and others in the royalty-collecting field, an earnest (and dishonest) ongoing effort is being made to extract money from every single interaction with a copyrighted work, whether it’s a stream, a download, an upload or simply a backup. Having discovered that suing your way to profitability is nearly impossible, these groups instead hope to bleed every service dry, drip by incremental drip.

Aggressive patent holders are doing the same thing. While there are still a number of high-dollar lawsuits filed (usually in hope of a much smaller settlement), patent litigators like Lodsys are aiming lower in hopes of a small, but perpetual income stream. All of these groups hope that the dollar amount is small enough that only a slim minority will complain or withhold payments. They make it sound so reasonable. "It’s only .575%. It’s so small and hardly noticeable!"

But "small" becomes a killer when everybody wants a piece of the action. Those increments all add up to real money sooner or later. But even worse, the chilling effect of overreaching legislation and thousands of litigious actions takes an incredible toll.

An amazing/terrifying piece of "speculative fiction" has surfaced over at Ftrain, although after reading this, you’d be hard pressed to agree with either of those two words in quotes. Paul Ford’s piece, "Nanolaw with Daughter" (subtitled "Why Privacy Mattered") paints an eerily prescient picture of where we’re likely headed. It starts with this gut-punch of a sentence:

"On a Sunday morning before her soccer practice, not long after my daughter’s tenth birthday, she and I sat down on the couch with our tablets and I taught her to respond to lawsuits on her own."

Ford’s world is filled with lawsuits upon lawsuits. Everyone is on the receiving end of one settlement notice or another, all piling endlessly into their inboxes. Most can easily be settled for under a dime, but like any other small thing, it adds up to real money. Even worse than the dollar amount is living your entire life as a constant target. Or in his daughter’s case, even longer:

"My daughter was first sued in the womb. It was all very new then. I’d posted ultrasound scans online for friends and family. I didn’t know the scans had steganographic thumbprints. A giant electronics company that made ultrasound machines acquired a speculative law firm for many tens of millions of dollars. The new legal division cut a deal with all five Big Socials to dig out contact information for anyone who’d posted pictures of their babies in-utero. It turns out the ultrasounds had no clear rights story; I didn’t actually own mine. It sounds stupid now but we didn’t know. The first backsuits named millions of people, and the Big Socials just caved, ripped up their privacy policies in exchange for a cut. So five months after I posted the ultrasounds, one month before my daughter was born, we received a letter (back then a paper letter) naming myself, my wife, and one or more unidentified fetal defendants in a suit. We faced, I learned, unspecified penalties for copyright violation and theft of trade secrets, and risked, it was implied, that my daughter would be born bankrupt.

But for $50.00 and processing fees the ultrasound shots I’d posted (copies attached) were mine forever, as long as I didn’t republish without permission."

Ford is dead on. There is nothing about that scenario that sounds far-fetched. The only thing holding some companies back from litigious action this insane is the lack of audacity to follow through on their lawyers’ fever dreams. The precedent can always be found. All that’s really needed is some sympathetic court to shove the case through. Like say, I don’t know, the judicial farce known commonly as "East Texas"?

It gets worse. And by "worse," I mean more and more believable.

“How many are left?” I asked.

She looked at her tablet and said: “Fifty-seven.”

“We can handle that,” I said. I walked her through the rest: Get rid of the ones without flags. Pay those a dime or less by hitting the dime button. How many now? (Only six.) We went through the six: Four copyright claims, all sub-dollar and quickly paid.

She opened the penultimate message and smiled. “Dad,” she said, “look.”

We had gone to a baseball game at the beginning of the season. They had played a song on the public address system, and she sang along without permission. They used to factor that into ticket price—they still do if you pay extra or have a season pass—but now other companies handled the followup. And here was the video from that day, one of many tens of thousands simultaneously recorded from gun scanners on the stadium roof. In the video my daughter wore a cap and a blue T-shirt. I sat beside her, my arm over her shoulder, grinning. Her voice was clear and high; the ambient roar of the audience beyond us filtered down to static."

ASCAP. BMI. RIAA. SESAC. Et al. This is what they really want. Music that is paid for multiple times with individual fees just small enough to be unoffensive.

I won’t give away any more of the story but every single chilling word is worth reading, especially if you’re on the other side of Techdirt’s fence. If you think the laws currently in place don’t cover enough ground and aren’t doing enough to protect your content/product, just take a look at what can happen if you push hard enough for long enough. Everything in here isn’t just easily imaginable, it’s also highly possible.

And brace yourself for the last couple of sentences. They sum up the attitude of Big Content maximalists and overreaching government entities perfectly. Everything is actionable. Everything can be taken. Everything can be used against you.

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Comments on “The Maximalist Future: Be Sure To Pay Off Your Lawsuits Before Heading For The School Bus”

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Dark Helmet (profile) says:

Re: Re:

What does it matter? We all know free-loading pirate-panty-sniffer Mike Masnick is actually writing all these articles anyway. It’s the sum-total argument completion that he isn’t even creative enough to think up individual last names for his “authors”.

I mean, come on. Cushing? Who really believes that’s a last name?

Dark Helmet (profile) says:

Re: Re: Re:

“Sorry guys for mixing you two up. I still think this post is absurd, but perhaps he was trying to joke as well?”

Well, he IS commenting on a work of fiction, you know. Speculative fiction, no less, which of course doesn’t describe reality but rather a possible reality.

Are the descriptions here in really so far fetched that you would label them impossibilities, say, 30 years out?

Phillip Vector (profile) says:

Re: Re: Re: Re:

“from the it’s-a-stretch-to-call-this-fiction dept”

If anything, I’d say he’s arguing that it’s so close to the truth that it almost isn’t fiction.

Yes. I feel comfortable labeling it impossible for a kid of 10 being sued and them being responsible for it. Also, sued in the womb is going a bit to far.

It just reeked a bit to much like someone who sees only bad in the world. Not my personal cup of tea.

Josh in CharlotteNC (profile) says:

Re: Re: Re:2 Re:

Yes. I feel comfortable labeling it impossible for a kid of 10 being sued and them being responsible for it.

Yes, that would never happen. No lawyer would sue a kid for downloading a song.

Oh, wait. They already have.

They’ve also sued dead people, then tried to get it transferred to the surviving family members. Is there that much of a stretch to not-yet-born?

Anonymous Coward says:

Re: Re: Re:2 Re:

>I feel comfortable labeling it impossible for a kid of 10 being sued and them being responsible for it

Because teenagers have never been sued for filesharing…

And teen girls haven’t been charged with distributing child pornography for taking topless pictures of themselves…

HothMonster says:

Re: Re: Re:2 Re:

Dont forget tha 4 year old from New York who got sued last year for for hitting a women while on his bicycle:

“However, New York Supreme Court Judge Paul Wooten ruled that she was ?old enough to be held negligent under law.? He noted that ?while the law presumes children under age 4 are incapable of negligence, for infants above the age of four, there is no bright line rule.? He also ruled that ?Juliet?s lawyer had presented no evidence Juliet lacked intelligence or maturity, nor that a child of similar age and capacity would not have understood the danger of riding a bicycle into an old woman.? He then cited a few cases of young kids who?d been involved in accidents.”

G Thompson (profile) says:

Re: Re: Re:3 Re:

Yes this is because the Great country of the USA has no such thing as ‘doli incapax’ so therefore children have no presumption of innocence and are deemed fully responsible for criminal or civil matters. Where children can be charged as adults from 6yrs old and above (no other country on the planet does this – other than Mexico but only for major criminal matters)

A story that states that respondents could be ‘in vitro’ is not that far fetched when you consider the above.

MrWilson says:

Re: Re: Really?

If you don’t think that at least some of the scenarios in the story are possible or even sought by the copyright maximalists, then you haven’t been paying attention.

They’ve sued schoolgirls and dead people. They’ve suggested its unfortunate that the death penalty doesn’t apply to copyright violators. They’ve subverted the democratic processes of foreign governments. They’ve gotten law enforcement agencies to raid copyright violators’ homes with firearms.

Why are scenarios in the story so far fetched? Just add slightly more ubiquitous technology and escalate current lawsuits and legislative efforts to slightly more absurd levels – which seems to be the direction we’re going.

Anonymous Coward says:

Re: Re: Re: Really?

I could write a similar story where roving gangs of music pirates take over every recording studio and concert venue in the world and force artists to produce new music so they can pad out their ipods. It isn’t likely, but it is possible.

The basis for this story is crap, because it assumes things that are directly opposed to copyright law. Example would be the whole sued in the womb thing. The maker of the imaging equipment has no rights to the images produced by it, in the same manner that a camera company doesn’t own the rights to images you shoot with your camera. That is an obvious misrepresentation, and much of the rest of the story follows. It would require that judgements already rendered, decisions already made, law already written, and supreme court rulings be overturned.

Really, it is just pathetic anti-copyright propaganda. It has no basis in fact or even potential.

Rikuo (profile) says:

Re: Re: Re:2 Really?

“The maker of the imaging equipment has no rights to the images produced by it, in the same manner that a camera company doesn’t own the rights to images you shoot with your camera”
If you’re thinking of buying the new Nintendo 3DS, check the terms and conditions. Nintendo claims it owns the copyright to any pictures/video you capture with the camera.

greg.fenton (profile) says:

Re: Re: Re:4 Really?

Not standing up in court is the whole point to this article. It doesn’t matter if it doesn’t stand up in court….no one wants to get that far. So instead, we threaten to sue you unless you pay us a penny for each thing you do. Too little to bother fighting, so just pay it away.

And they don’t have to actually take you to court. Just partner up with other service providers that agree to deny you services as long as you have outstanding liens.

“Go get another provider” you say? But there aren’t any others. All competition has been M&A’ed.

Still way too out there for you?

MrWilson says:

Re: Re: Re:2 Really?

A world in which music pirates can take over recording studios is a world in which other significantly wrong things are happening. There would have to be massive social upheaval for people whose unifying trait is their interest in music to take up arms to force the artists they celebrate to create new music.

It wouldn’t take much for big corporations to control the world… they already do.

Capitalist Lion Tamer (profile) says:

Re: Re: Re:2 Really?

1. You should totally write that story. One of the Tims can write up commentary on it. Let us know when you’ve got it in the bag.

Really, it is just pathetic anti-copyright propaganda. It has no basis in fact or even potential.

Don’t forget anti-patent, anti-trademark, anti-nanny state and anti-frivolous/vindictive lawsuit.

DannyB (profile) says:

We almost have the technology to help the record industry

Once we get small enough digital signal processors and devices, it will be possible to have an ear implant device that can hear whenever you are hearing copyrighted music. It can record the charges to your credit card automatically and then batch upload those charges next time you are in range of an internet connection.

The fees collected from licensing can be used to pay for the devices implanted at birth. After administrative overhead and other fees, there is nothing left over for the artists.

John Doe says:

This is actually believable

Too many who don’t follow this blog and all the lawsuits and lobbying taking place in the IP world, this story sounds like complete BS. But after seeing all the things being done by the IP maximalists and all the laws being pushed through in the backrooms of government, I would have to say this story is not nearly as far fetched as it sounds. I definitely believe that Big Content would love to have a system in place to levy a fee on every bit of IP consumption that takes place.

Ed C. says:

Re: This is actually believable

I agree. What’s just as bad is that they push as much of their copyrighted material upon us as possible. Whether it be a printed pictures, logos or ads, or songs played aloud, there’s always something copyrighted. It’s already to the point that you can’t take a picture in a public venue without catching something with a copyright–just think how much is caught on camera in a televised sporting event! Then, they push the laws to create as many violations of their “rights” as they can. I didn’t ask for any of this, yet they still demand that I have to pay just because I caught it in picture or video and posted in somewhere! It’s already to the point that their enforcement is selective at best, yet, if they come knocking, the cost of proving one’s innocence is too high.

Of course, the shills will say that it’s not that bad, but later they’ll demand how it should be worse!

HothMonster says:

Re: Re: Re:

Not sure what this AC is talking about…

Probably a first language English speaker who has no idea what prescient means and would rather insult you than face his ignorance.

Either way I believe you are right I don’t think something can be prescient until it has been proven to be accurate.

Anonymous Coward says:

Did you HAVE to give them ideas? There’s no way the collection societies aren’t going to use that “one or more unidentified fetal defendants” bit from now on.
They already sue little old ladies and war veterans. Moving up to pregnant women is the obvious next step, especially since they can collect double from them.

Anonymous Coward says:

There’s a movement underway to remove all control from your life and turn it over to others. It’s not an organized movement. There’s no figurehead leading the way, but between the government, the legal system, various rights holders and their offshoots and professional patent thugs, a steady removal of individual rights and personal ownership is taking place.

I suggest you read the book Nudge by Cass R. Sunstein then ponder what his current job is!

I cannot think of a more prominent figurehead/bureaucrat.

Hugh Mann (profile) says:

Looking forward to reading the story....

Sounds like it might be a fun read, though perhaps a bit heavy on the copyleft stuff.

Two minor points, though:

1. You really can’t logically call something “eerily prescient” prospectively. That’s the kind of observation that is really only valid in hindsight. You might believe it will later be found to be eerily prescient, but it’s not yet until we see if it actually plays out.

2. You can really see suing a fetus for an act it did not commit and could not contribute to? And, really, suing the subject of a photograph over the acts of the photographer – or the person who hired the photographer – in a situation in which the photographic subject was not a willing, or even knowing, participant? I was willing to go along with the other things in the part you excerpted as very unlikely, but logically possible in an extreme sort of way. Suing fetuses seems a bit beyond that. A minor point, though. Still makes for an interesting story – being born with some number of lawsuits already pending against you, settling most of them for some ultra-low NPV like you pay bridge tolls or something.


Anonymous Coward says:

Re: Looking forward to reading the story....

I dunno, you might have to sue the foetus as well as the more directly guilty parties because if you didn’t they could claim they had rights to the photo, especially as it is an image of them and is therefore part of their publicity rights and they might also at a later date sue the manufacturers for enabling a breach of their right to privacy in the womb.
To forestall all that, you might have to sue them to have your rights declared paramount.

Anonymous Coward says:

Re: Re: Re:

I am also very good at assisting people in stepping in front of trains, trucks, etc., as sometimes people lose their nerve at the last moment.

Judging from some of your previous comments, I’d imagine that you might also be “very good at assisting people in stepping in front of trains, trucks, etc.,” even when they never wanted to.

NullOp says:

The Future

It has long been known it is easier to control/manage something rather than create that something. So all the control agencies are fighting hard to increase their control and revenue from whatever it is they control. We can forget about the legal system helping with this problem as they are benefiting greatly from it and are not about to back away from the trough. This behavior will probably never be curbed as there is far too much profit involved since nothing is created. It’s a disease that should be cured but will not be since the legal system is Big Businesses whore.

Oh, and btw, the record labels would love for you to have to pay every time you listen to a recording you “own.”

Peter S. Chamberlain (profile) says:

Mimimalist Future Copyright Sonograms etc.

I?m a retired lawyer but not a copyright or IP expert, and have read through the DMCA but not taken any courses on it since it was enacted after my retirement. Please tell me you?re kidding about the copyright royalty demand for posting the ultrasound pictures of your as yet to be born child, and they don?t really send those demands, either to proud parents to be or impe3nding new defendants in utero, yet. I?m sure they will now, but please tell me they haven?t until you so brilliantly suggested this new income steam. I?m still not clear about what in the ultrasound picture they claim to have created by their own intellect, too. What would the total liability of the pre-born child whose ultrasound was used in the famous ?Is something inside telling you to buy a Volvo?? commercial, the parents, or Volvo, be?
I?m lost track of the lawsuit over the claims of some large medical enterprises to some manner of legal rights to individuals? apparently un-recombinant DNA. Since we know you can gather DNA samples from soda cans, cigarette butts, spit on the sidewalk, etc., not to mention certain felony crime evidence kits, would the person who originally acquired that unique DNA by conception and birth be liable for making it available to anyone other than the medical facility claiming rights in it? Since no human actually designed the DNA, it escapes me how any person or entity could claim to have acquired intellectual property type rights in it.
My elderly parents were running a small hotel in northwestern Pennsylvania many years ago when it honored reservations by and had as guests a number of fellows on their way to a now-infamous meeting of leaders of a certain infamous organization variously called the boys, the Mob, the Mafia, etc., the existence of which, in a brilliant takeoff on a brilliant PR campaign by the Devil, J. Edgar Hoover, the D.A. of Brooklyn and New York, and others had been persuaded to say didn?t exist, complete with a slogan, ?No, Virginia, there is no Mafia,? itself ripped off from the Baltimore Sun?s famous ?Letter to Virginia.? They carried heavy gun cases, claiming they might do some crow hunting, which would have required incredible skill with the weapons we saw, and tipped well. Shortly thereafter, the hotel received a demand letter from SESAC, of which none of us had ever heard, demanding royalties for some obscure march played at halftime of the Super Bowl which had been playing on the TV in the hotel bar. Mother (a) confused them with the Musicians?? Union, (b) confused that with the Teamsters who were involved in a high-profile investigation at that and other times, and (c) was sure this was somehow connected to our recent high-tipping guests. I checked with someone knowledgeable and got this resolved cheaply once I learned that they did exist and represented some, albeit a few, artists we had ever heard of. Then, of course, ASCAP, who we had heard of, contacted the hotel, about, for example, some piano and sing-alongs, and they mistakenly responded that they paid SESAC instead. A quick conversation with them, and a quick call to the Hotel Association, revealed that they had already negotiated reasonable blanket license rates for small hotels. I knew abbot BMI but don?t know if they ever made a demand or not. We considered copyrighting a bunch of my aspiring musician kid brother?s and some of his friends? guitar licks etc. forming our own Performing Rights Society, and seeing how many small businesses would pay them, but didn?t actually do that.
Don?t get me started on DRM. Somehow I cannot figure out how that would work on DNA or individual people. If the rights to my DNA belong to Johns Hopkins and my wife?s to the Mayo Clinic, and we and our child live in Texas, what court has jurisdiction and venue of the lawsuit and which state?s law applies? If you buy a prize cow or bull, how many cloned copies, and how many natural copies, are you allowed to make, and how would they divide3 up the royalties? I suspect that it violates the license on MS Excel if I get one of my good computer geek buddies to create a program that runs on it, compares some options, and prepares bankruptcy court filing documents that comply with a set of official requirements the government sells no workable program to create, and the commercially available ones tend to be expensive, clunky, and hard to use.
Lee DeForest was apparently quite good at spotting patentable elements in circuitry in the early days of radio. Two people at two different companies apparently developed television independently. That?s why they have no gone to first to file.
The law book companies?a field now reduced to a small handful because the big ones that used to compete in some things have merged, been taken over, consolidated, etc.,, –have set it up so that the electronic copies of these same books turn into pumpkins and have to be re-purchased frequently. That?s outrageous. Even more so is the state governments and politicians letting them assign and copyright the only official and proper ways to cite laws and court cases created by public officials with public money that are open public records. You end up with expensive books you have to buy because the official comments on the law don?t appear in the free versions or the electronic versions, and you have to keep replacing them because they change six pages every two years.
My copyrighted and un-copyrighted copies of the Constitution say Congress is authorized to grant patents and copyrights for limited terms of years. It escapes me how Congress thinks it can grant retroactive copyrights, except to cure accidents like the poor guy who forgot to renew the copyright on It?s a Wonderful Life, or copyrights for ?limited? terms longer than the author?s or anyone?s natural life, or in virtual perpetuity.
There are a whole lot more content users than copyrighted content creators. I?m both but consume a lot more than I create, especially that I may ever try to sell. I grew up on paper books, including law books, that you could use or show to a judge or anyone else without having to pay for them all over again. If a mystery writer I never heard of even on writing Web sites until I read about him on a computer site can make a chunk of money selling his work exclusively on line at ninety-nine cents a book copy, surely there is a way they can do a better, more efficient, and cheaper job of this. Now the fun problem is that I need a copy of what one law book said in 1999, nobody I know has a copy anymore, and the publisher won?t sell it to me or wants several times the original price, making it unaffordable.
One would think that if the EU can force us to change our law on some parts of IP, they, plus the majority of Americans I know who want good privacy protection, should be able to get Congress to pass some, if they want to pretend this is still a representative government.

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