Former RIAA VP Named 2nd In Command Of Copyright Office

from the revolving-door dept

We’ve talked in the past about how unfortunate it is that the US Copyright Office seems almost entirely beholden to the legacy copyright players, rather than to the stated purpose of copyright law. That is, instead of looking at how copyright can lead to the maximum benefit for the public (“promoting the progress of science”) it seems to focus on what will make the big legacy players — the RIAA and MPAA — happy. Part of this, of course, is the somewhat continuous revolving door between industry and the Copyright Office. Just a few months ago we wrote about how the Copyright Office’s General Counsel, David Carson, had jumped ship to go join the IFPI (the international version of the RIAA).

Last night the news came out that the US Copyright Office had now named Karyn Temple Claggett as the Associate Register of Copyright and Director of Policy & International Affairs. While Temple Claggett has actually been at the Copyright Office for a little while as Senior Counsel for Policy and International Affairs, not too long ago she was a hotshot litigator for… the RIAA. In fact, an old bio of hers, from when she was at the RIAA (as VP, Litigation and Legal Affairs), notes that she was instrumental in their ever-present legal campaign against pretty much any innovative technology that comes along:

While at the RIAA, Ms. Temple-Claggett has worked on some of the most high-profile copyright cases brought by copyright owners in recent years, including the Supreme Court Grokster litigation, as well as litigation against LimeWire, XM Satellite Radio and Usenet.com

I’m sure she’s a fine person and a good litigator, but it’s difficult to think that she’ll be anything but a pure maximalist in favor of expanding copyrights and copyright enforcement, and against any innovation that challenges the status quo. It’s hard not to be cynical when you see this kind of revolving door. And, of course, it’s always entirely one-sided. Could you imagine the Copyright Office naming a top EFF litigator as second in command? Exactly the point. How is it possible to take the Copyright Office seriously as an advocate for what’s best for the public, when the connections there are to industries who lean heavily on keeping out innovation and promoting an old business model through aggressive litigation and regulation?

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Comments on “Former RIAA VP Named 2nd In Command Of Copyright Office”

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433 Comments
Anonymous Coward says:

Re: Re: Re: And this is why....

The least?? Why does the government have to do anything for any group?

How about the entertainment industry start treating those that produce music, etc, honestly and fairly? Then the government doesn’t need to step in an protect anyone from the dishonest practices of the entertainment industry at all..

But, I do agree, musicians have been trampled on by the very industry that was supposed to protect them. That much is clear and easy to see.

Anonymous Coward says:

Re: Re: Re:2 And this is why....

I make my living in the recording industry. Within that I’ve seen plenty of slimy people that take advantage of others. Plenty. The thing is, that isn’t any different than any other industry. We live in a world full of sharks and there are always nasty people trying to take advantage of someone else.

However the vast majority of people that work in the industry and at labels are super cool and upstanding. You don’t get to keep your job very long if you’re not; there are waaaay too many other decent, hard working people ready to take your place at a moments notice. Everyone, it seems, wants to work in this business.

And btw, you could add up every nefarious deed ever committed by every record label in history, and it still wouldn’t come remotely close to equaling the amount of illegal downloads that have happened in the past 13 years.

So trying to say piracy is ok because there have been some record labels that have pulled some shady shit just doesn’t fly.

Anonymous Coward says:

Re: Re: Re:3 And this is why....

Hang on:

I appreciate your sentiment, but the RIAA, as the labels’ trade organisation, employs known and convicted fraudsters. embezzlers and charlatans in order to keep as much money as possible. The labels knowingly use accounting tricks in order to avoid paying out to their artists as part of a contract.

I don’t think most of the people working in the recording industry are evil inhuman monsters. I just think that, with fewer sociopathic tendencies at the top, they could make tons of money and have a gaggle of artists willing and ready to sign up with them.

Anonymous Coward says:

Re: Re: Re:4 And this is why....

There are definitely still some shady players, but now (almost entirely due to the internet) that situation has gotten better; distribution isn’t closed-end anymore, bogus behavior is known within seconds to everyone rather than being passed word-of-mouth to a few over a matter of years, and there is enlightenment about better situations and a support network to facilitate it.
What I’ve seen is most of the old-school slimesters being nudged out the door. Which is a good thing 🙂

silverscarcat says:

Re: Re: Re:3 And this is why....

“And btw, you could add up every nefarious deed ever committed by every record label in history, and it still wouldn’t come remotely close to equaling the amount of illegal downloads that have happened in the past 13 years.”

Snort

BWAHAHAHAHAHAHAHAHAHAHAHA!

Oh wait, you’re serious…

Let me laugh harder.

BWAAAAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!

Oh, that’s a good one.

Good joke, good joke.

I mean, illegal downloads have shut down the music industry, radio stations and ruined the lives of every RIAA executive out there.

And the RIAA would NEVER sue a bunch of printers that were linked together, grandmothers, children who aren’t even in school, dead people, college students hundreds of thousands of dollars and ruin their lives, now would they?

Anonymous Coward says:

Re: Re: Re:4 And this is why....

Illegal downloading has put a huge dent in revenue for music labels. Budgets for bands making albums have been more than cut in half. This often means bands are making albums less often and don’t have as much time in the studio to create.

There’s really no way to apply a positive spin to that reality.

MrWilson says:

Re: Re: Re:5 And this is why....

No, disconnecting single sales from albums, legal technologies and services like Pandora and YouTube, competition from other entertainment mediums, and a less robust economy with a smaller middle class with less discretionary budgets has put a huge dent in revenue for music labels.

If you feel that being a deckhand on the Titanic is still a good career choice even after the captain has run into an iceberg, there’s not much to be done but wave as the ship goes down.

Anonymous Coward says:

Re: Re: Re:6 And this is why....

I have no problem with my career choice at all, as what I do makes me a decent living. But I wouldn’t want to be a musician relying on touring to make a living; that life is gnarly. Unpleasant sleeping conditions, away from friends and loved ones all the time, no health insurance, horrible food and all for very little money.
At least with record royalties a musician can afford to be home and create more. So those are the people I’m bummed to see getting harmed.

Anonymous Coward says:

Re: Re: Re:7 And this is why....

They aren’t being harmed, royalties using online distribution are orders of magnitude higher than legacy labels were offering and more people actually end up getting them when before the vast majority of musicians never even got signed much less got signed and got any money out of it. You’re talking about a minuscule fraction of the musicians here.

PaulT (profile) says:

Re: Re: Re:7 And this is why....

“At least with record royalties a musician can afford to be home and create more. So those are the people I’m bummed to see getting harmed.”

So, you support an economy where people only work once then get paid forever because you feel sorry for their conditions if they have to work for it? What conditions do you support for factory workers and farmers, who often only get minimum wage if that? If not the same, why do you think musicians deserve to be free from the pressure of unpleasant hard work?

PaulT (profile) says:

Re: Re: Re:9 And this is why....

“Re: music, if you are fine with not listening forever, then I’ll be ok with them not getting paid forever.”

So, now you’re not only demanding that you get paid forever, but that you’re paid per listen too? I wonder why you think you’re so much better than the generations of people who came before you who created music without demanding such a pension.

“Deal?”

No. Art belongs to our culture, and that belongs to the public. If you’re too greedy to accept the limited monopoly you have to monetise it before it returns to the public, that’s not my problem. Copyright is meant as a limited incentive for you to continue to create and improve our culture, not an infinite pension plan for greedy assholes.

MrWilson says:

Re: Re: Re:9 And this is why....

But that only works against the farmer example. What about construction workers and architects? Until their buildings are torn down, their efforts result in continued use, sometimes beyond the length of current copyright durations.

There are still Roman bridges being used in Turkey. Do the Turks need to make royalty payments to a Roman trust?

But still, it doesn’t technically work on the farmer example either since part of the food that you consume is broken down and literally becomes a part of your body, so you continue to “use” it long after you’ve excreted the waste part.

You’re also muddling the issue by conflating commercial use with private use.

Royalties are paid for commercial sales of works or for commercial uses or corporate licensing.

Consumers buy a copy of music and never pay another dime for it unless they buy a new copy (which shouldn’t happen if, as the RIAA companies claim, they’re buying a license for the song rather than the format it’s in).

Anonymous Coward says:

Re: Re: Re:10 And this is why....

Round-up ready corn seed will continue to proliferate beyond the initial crop by virtue of the act of growing it. Buildings and bridges are static. The architects drawing are typically licensed for the single structure. Build another with proper authorization, you’ve got a problem. Not to state the obvious, but probably necessary for you, IP law doesn’t cover the pounding of nails.

MrWilson says:

Re: Re: Re:11 And this is why....

“Round-up ready corn seed will continue to proliferate beyond the initial crop by virtue of the act of growing it.”

I’m not sure why you’re bringing this up. You brought up round-up ready corn.

“Buildings and bridges are static.”

But they are used continuously after the initial work by their creators, whether it’s the architect or the construction workers. This was stated in direct response to the earlier AC who claims to work in the recording industry who said, “Re: music, if you are fine with not listening forever, then I’ll be ok with them not getting paid forever.” Using continued use as an excuse for perpetual payment for singular instances of work would apply just as much to architecture and construction work as it would to recording music. Therefore, it’s not a valid argument that musicians get some special perpetual right to make money from singular instances of work when other (arguably creative) works aren’t considered to warrant perpetual payments.

“Not to state the obvious, but probably necessary for you, IP law doesn’t cover the pounding of nails.”

Not to state the obvious, but probably necessary for you, IP law doesn’t exist. There’s copyright law. There’s trademark law. There’s patent law. There’s no such thing as IP law. But all of that is irrelevant to your point because even things that copyright law does apply to don’t always generate a perpetual payment to their creators.

btr1701 (profile) says:

Re: Re: Re:9 And this is why....

Re: music, if you are fine with not
listening forever, then I’ll be ok with
them not getting paid forever.

Why should a musician get paid every time someone listens to their song?

An electrician doesn’t get paid every time someone uses the wiring in the house he installed.

An architect doesn’t get paid every time someone sells a house he designed.

An accountant doesn’t get paid every time someone looks at a spreadsheet he put together.

Everyone else in society gets paid once for their work. Why should artists be any different?

silverscarcat says:

Re: Re: Re:5 And this is why....

While album sales are down, and that’s true…

Hasn’t itunes been selling more than 1 billion songs a year the last couple of years?

Last I checked, they sell songs at 99 cents a song, so, 1 billion x .99 = 990 million dollars.

And iTunes sends more of that to the artists than the RIAA ever did.

Plus, it probably didn’t help that the RIAA got hammered with price fixing by the DoJ around 1998.

PaulT (profile) says:

Re: Re: Re:7 And this is why....

While they may be big money, neither are as big as they were in 1998 when they were reselling albums to people who already had them on vinyl, charging up to ?4 (in the UK, which equates to $6 in the US by exchange rates) for CD singles and selling albums at a premium. People usually only buy singles through iTunes and Spotify is radio rates not purchase rates, so they are still “losing” money even if more music is being consumed. Therein lies the problem – they want that next yacht but they can’t afford it like they could in the 90s…

Mr. Applegate says:

Re: Re: Re:5 And this is why....

Cite Please, I want to see this reality you are speaking of.

The REAL reason revenue is down is because the Music Industry depended for YEARS on the sale of the ALBUM. Ten or twelve songs placed together on an LP, then tape, and CD that could be sold together. They would put one or two decent songs on an album and people bought the entire album. The digital age made it easy to buy (or pirate) singles.

So the real reason the Music Industry is hurting is because they used to be able to make money on 100% of an album, and now they are only making money on 20% (the 20% that is decent music). People no longer buy the other 80% (the 80% that was just filler on an album).

“Piracy” as you call it has been around for ever. Growing up I used to tape songs off the radio, or off a friends LP. If I really liked the music I went out and bought a copy, if I didn’t well it just set there on tape. So you really can’t blame piracy for the music industries problems. They survived the age of bootlegged mix tapes and rampant “Piracy” (Music Sharing) just fine all through the 60’s, 70’s and 80’s.

The problem is, as with most large companies, they failed to innovate and keep up with the times. Instead of seeing the new reality and embracing it they have fought it every step of the way. Of course now there is probably less than 1 in 10 songs that are worth listening to. So quality went down, ability to buy only high quality went up and they are crying because they can’t keep selling 80-90% crap!

Had the Music Industry embraced the digital age, and increased the number of hits produced per artist the sales would have gone through the roof, but even when that is the obvious problem they still like to pretend the problem is those dirty rotten pirates. Problem is they were around for more than 40 years and it wasn’t a problem until it became really easy to not buy an album and only buy singles. I could hop on online and buy a song today for $1 30 years ago I was pay $15 for 10 songs (even though I only really wanted 1) Perhaps it’s time to face the truth. They produce CRAP and people don’t buy it anymore.

Mr. Applegate says:

Re: Re: Re:7 And this is why....

And what percentage of the Music Industries Revenues came for Single Sales; Album Sales; Specialty Sales?

Here let me help you out. I cite:
http://www.businessinsider.com/these-charts-explain-the-real-death-of-the-music-industry-2011-2

There are plenty of charts there, many sourced from the RIAA, that show pretty convincingly that the death of the album is what is hurting the Music Industry.

PaulT (profile) says:

Re: Re: Re:7 And this is why....

Many album tracks were not available as 45s. Now they are available as MP3s. Your point, while partially valid, is incorrect. Except for the times when labels try to restrict their singles to “album only” tracks, of course, but that just makes them more attractive to pirate because nobody wants to pay $15 for 2 decent songs…

PaulT (profile) says:

Re: Re: Re:9 And this is why....

Not completely, but it’s certainly one of the major factors to consider (others being competition from other entertainment media, people no longer having to re-purchase content to get the new medium as that had to for going from vinyl or tape to CD, the global recession making frivolous purchases less desirable – and the music industry is 100% frivolous – among many other examples).

Most albums consist of good tracks people want combined with filler. Very few albums consist of 100% great songs, even the best have some duds. People don’t like buying a $15 CD and finding out there’s only a few tracks they want to listen to. They never have, but unless the “good” songs were released a singles, the only legal way to get them in the past was to get the album. Now, people can get only the tracks they wish and pay accordingly. Thus, instead of paying $15 for the full album they pay $5 for the 5 tracks they want. If enough people do this, that causes a drop in the overall revenue being received. Data shows that while people do buy albums through iTunes, etc, a large proportion are single track purchases, not album purchases, and so this contributes to a drop in record label revenue since the 90s.

Why is this a difficult concept to understand? Is it perhaps because it’s a logical point that involves recognising a fundamental sea change in the market, rather than something that you can reject by whining about “piracy”?

Mr. Applegate says:

Re: Re: Re:9 And this is why....

I don’t want to speak for Paul T., but I certainly am suggesting just that! Look at my post above, I provided a link to a Business Insider article that shows exactly that.

When digital music came of age and people started buying songs via iTunes et al and it became cheaper to buy the songs you liked rather than an entire album. This obviously cut revenue for the labels.

Another reason for loss of revenue for labels is, that the internet created an avenue for those ‘struggling artists’ that could not get a label to publish their work to publish it themselves or through non-traditional sources which bypass the old guard labels. This increased competition and meant that people didn’t have to choose only from among what the labels had to offer (The labels were the driving force behind what we heard for years, they said yes or no based on a 10 second clip of an artists audition tape).

What you can’t do is blame piracy? Why? Because before it was called piracy, back in the 60’s and well into the 90’s there was music sharing. People would tape music off the radio or off of a friends 45 or LP. They would create custom mixes of the songs they liked on cassette or 8tracks, or even reel to reel tape. You could find bootleged mix tapes for sale in any city. Eventually, this grew up to be copying of tracks off CD’s etc and finally (comparatively recently) it became file sharing. Bootlegging was never a huge problem for the music industry until other things changed.

The music industry has no one to blame for their fall, except themselves! They failed to innovate and keep up with the times. They failed to give the people what they asked for and they failed to offer music that fell outside what there little cash cow slide rule said would sell. They even limited the quality of the transmission of HD and Satellite radio to try to prevent people from recording from there.

They are still doing it today. They could solve their problems very quickly by doing the following:

1. Remove DRM from all products. DRM only punishes your paying customers.

2. Provide lossless digital copies for sale on-line at current prices. Having a reliable source for known good lossless copies of music will make piracy less attractive.

3. Provide a service that will track the sale of music, allow it to be re-downloaded as needed in any format desired. Again, prevents people from having to resort to ‘piracy’ to get what they already paid for in a desired format.

4. Allow people to transfer ownership (license) to another party. After all in the era of LPs, tapes and CD’s I could transfer my copy to others, why not now?

5. DUMP the album ideology and produce a wider range of music from more artists. Very few people buy songs as an album, it nearly dead, let it die.

6. Stop beating up, (suing condemning…) the very fans that you want to become your customers. Generally if you treat your customers badly they won’t come back for more.

Will they do it? No! Why, because it means they concede that they have lost the death grip they had on the industry for years. It concedes that it is the customer who has control and not the industry.

Mr. Applegate says:

Re: Re: Re:11 And this is why....

Here is one possible solution:

They could ‘watermark’ downloads and test to see if they are published on bit torrent… Then they could go after the person who currently owns the file if they published it or anyone else that publishes the copy. It really isn’t that hard to watermark an electronic file these days and it can be fairly hard to remove the watermark (and less obvious than current DRM which is a breeze to remove). (Each person who buys a copy would have an ID watermarked into ‘thier copy’). Technically, this is still a form of DRM except it doesn’t impose restrictions on the person that downloads the music as far as format or device or location, none of which should matter to the industry anyway. Watermarks are actually harder to remove than current DRM and they don’t get in the way of the end user (you know their customer).

The Entertainment Industry doesn’t like this because that still allows Fair Use (such as me giving a copy to my son or brother) that they might not get paid for. However, it allows them to track who originally ‘owned’ music and whether the owner published, or allowed the music to be published. Existing laws could then be used for enforcement.

It really isn’t that hard and it is painfully obvious that the current methods do nothing but discourage people from buying music (or movies). You can listen but only on 5 devices, or only … It is also obvious that those in power have no idea how to grow a business. They are literally screaming at their customers and preventing them from doing things that have been technically possible (in one form or another) and widely done for more than 40 years. That will keep them coming back for more. Only the masochists will come back for more under their current plan.

Anonymous Coward says:

Re: Re: Re:12 And this is why....

OK. What if you lend that unique property to a friend who then distributes it globally. Where does the liability rest? If with the original owner, how does he prove that his friend was the one who did wrong?

If the liability does not rest with the owner, then against whom is there any recourse for the rights holder?

Mr. Applegate says:

Re: Re: Re:13 And this is why....

Well I am not an attorney, but it would seem to me the rights holder could go after anyone PUBLISHING (in your example the person you lent it to) a watermarked copy, which, at least as I understand it, [gasp] was the original intent of copyright in the first place, to prevent SALE of things under copyright without the copyright owners consent. Copyright is not a license to control what happens to a copy once sold.

The watermark gives them a starting point (the purchaser or current registered owner), which might help find compromised computers or??? It also makes it easier to track where the big holes are, vs where the tiny pin holes are.

Right of First Sale, still in place.

Fair Use, still in place.

Ability to track, and prosecute illegal publication, still in place.

Ability to transform a copy I purchase into a format for any of my devices, in place. (This is important because that is what is the slayer of piracy, because then I don’t have to torrent a ipod copy of my CD / DVD or by 10 copies of the same movie or music)

All of this along with reasonable prices (also key) will make it more trouble than it is worth to pirate. Sure I may give a copy to my brother, who cares as long as he doesn’t then provide a copy to the world for free.

Look I don’t pretend to have all the answers, but as almost everyone agrees the current system is hopelessly broken. The view that increasing the inconvenience to your customers, or expecting them to pay extra for multiple formats… All the stuff the entertainment industry is doing today is self destructive. People will just choose not to do it at all. I am pretty much in that camp. OR people will choose to pirate and do what they want anyway.

The Entertainment Industry makes it so difficult to buy things and try to limit everything thing I do with what I buy that I just say screw them forget the whole industry.

Until they realize they provide a SERVICE to customers they are doomed. They seem to think they are the Benevolent Benefactor that allows me the privilege of listening to (or watching/playing/using) their content. They treat everyone like they are a criminal, yet the Entertainment Industry screws their customers at every turn.

Bought an ebook, Naw we aren’t happy you paid us for it, we won’t refund your money, but we will refuse you access…

Bought a movie, but want it in a format for your linux computer, screw you! You must be a thief!

Want to play this game, get on-line and let us make sure you paid.

Did you buy this software, no? CRASH.

Actions like these don’t make anyone want to go out and pay for content.

Anonymous Coward says:

Re: Re: Re:11 And this is why....

what kind of enforcement of copyright law

The idea that you’re failing to grasp is that if you follow those suggestions, you won’t need to worry about enforcement.

If you’re selling a product that the customer wants in a convenient manner at a price they’re willing to pay, then you don’t need to waste the time, money, effort, and customer goodwill that enforcement costs.

I cannot remember the last time I torrented music. It was months ago that I even ripped a song from Youtube. This coming from me, an avowed and unapologetic pirate. Why? Because I’m perfectly happy with Spotify (and before that, Grooveshark).

Anonymous Coward says:

Re: Re: Re:12 And this is why....

So what good are rights if they can’t be enforced? I doubt many here would be ok with the idea that their right to free speech was unenforceable. Or that any random person could hop in their car and take it for a drive.

I will never accept that a right exists without having corresponding redress against its violation.

Mr. Applegate says:

Re: Re: Re:13 And this is why....

Your still missing the point.

First of all Copyright was originally, as I understand it (I am not an attorney), about keeping others from SELLING copyrighted material. It was not originally intended to prevent the sharing of copyrighted material between individuals, the original intent was to stop people from making a profit off others work, not to prevent others from seeing/hearing a copyrighted work without paying.

Second, if you follow the well tested practice of Supply and Demand you can’t go wrong. Guess what with digital music there is an unlimited supply.

That means that people are willing to pay less for an item, but it also means the potential market is much larger.

So, if I can get a known good, high quality, copy for .50 or download some crap low quality mp3 I probably will spend the money. UNLESS you start saying here is a copy, but you can’t change the format, you can only listen on this device, you can only stream.. Suddenly, I would rather have to low quality copy I can do with what I want.

It really isn’t a hard concept to grasp, it is ingrained in human nature to do things that allow us to most easily achieve our goals. Copyright holders SHOULD realize that and give the people what they want. They would buy it except the industry is making it too hard, or in many cases flat out saying NO.

I still buy real books (and scan them). That’s right, I buy a book and copy it so I can get it in the format I want without all the DRM crap or violating the law. That is easier than buying a DRM laden ecopy.

Look at say water. Plentiful, potentially free, yet people spend millions to get water that is filtered (known good quality) and bottled (in a format they can easily use).

What the Music Industry does is take the water, mix it with mud, put it in a can with no opening and then say, why won’t people buy my water! Gee, I don’t know maybe it is because I have to have a special tool to get to it, then I have to filter it and disinfect it so I can drink it.

Anonymous Coward says:

Re: Re: Re:14 And this is why....

Yes, again I acknowledge that more robust distribution is desirable. But there are still those who convert the copyrighted content of others to their own financial gain. Like it or not, our system of law calls for rights to be enforceable. Otherwise the inherent right is meaningless. The constitution grants such a right.

Anonymous Coward says:

Re: Re: Re:16 And this is why....

“The constitution grants such a right.”

No, it does not. The Constitution grants Congress the authority to make such statutes.

Is English not your first language? Read this again:

“To promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors THE EXCLUSIVE RIGHT to their respective Writings and Discoveries.” {emphasis mine}

Congress’s role is to determine the duration of the exclusive period; the very existence an EXCLUSIVE RIGHT is clearly codified in the Constitution.

Mr. Applegate says:

Re: Re: Re:17 And this is why....

I think you are the one that needs to learn English!

Article 1, Section 8 begins by saying:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

note the semi colon at the end. That means what follows is a continuation of “The Congress shall have Power”

Clause 8 Says: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

“the very existence an EXCLUSIVE RIGHT is clearly codified in the Constitution.”

Wrong! The right of CONGRESS to DETERMINE these rights FOR A LIMITED TIME is clearly codified in the constitution, not the right itself.

Anonymous Coward says:

Re: Re: Re:18 And this is why....

I humbly beg to differ:

Graham, 383 U.S., at 6, 86 S.Ct. 684 (?Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.?)

While perhaps not explicit, clearly the court has held that it is a constitutional directive, implemented (and requiring implementation) by Congress. So we can argue about the level of mandate, the effect is the same. Any attempt for Congress to diminish or eradicate exclusivity would fail on Constitutional grounds. (imho). You make your point well. Hopefully some of the zealots will take note and step up their game.

Mr. Applegate says:

Re: Re: Re:19 And this is why....

“…(?Within the limits of the constitutional grant, the Congress may, of course, implement the… “

How exactly does “MAY” translate to MUST in the English language? I must have slept through that lessen in English class.

Further, your cite clearly does not preclude congress from diminishing the right by lessening the time or anything else. It simply states that congress should act as stated in the constitution as the framers intended.

Somehow I doubt the framers envisioned 70 years beyond death, and I seriously doubt they envisioned copyright held by someone other than the author.

Regardless, your cite does not prove your initial statement that “the very existence an EXCLUSIVE RIGHT is clearly codified in the Constitution.”

Mr. Applegate says:

Re: Re: Re:15 And this is why....

They ARE enforceable! I can’t help it that it is not easy to enforce. So you are saying the answer is to say those who pay are punished for paying? That is your answer?

Really???

Look, there are 3 basic paths.

1. Try to make it harder to pirate DRM…. We have been travelling down that road for at least a decade, we know it is a hard road and that it pisses off paying customers and drives them away.

2. Pirate. Currently, this is easily done, with little chance to be caught and I can do what ever I want with it when I get it.

3. Change the model, lower the cost, make the distribution fast and easy.

So where do you see people going?

Look at it like this

1. Is like an old mountain trail, it is rough, and many people will die along the way.

2. Is like a country road. I can pretty much go anywhere and do anything, but there may be a dead end here or there and the occasional pot hole.

3. Is the super highway I can get on fairly easily through well known channels and I can go anywhere I want easily and quickly.

Which road do you take?

Build the super highway, and you can thank me later. I won’t even charge you for the use of the business model.

“Like it or not, our system of law calls for rights to be enforceable. Otherwise the inherent right is meaningless. The constitution grants such a right.”

“Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

I am pretty sure that does not entitle a right holder to anything! It empowers CONGRESS to control the laws regarding IP, nothing more.

Now if you want to talk about the laws congress have enacted that will be a completely different discussion!

Josh in CharlotteNC (profile) says:

Re: Re: Re:13 And this is why....

So what good are rights if they can’t be enforced?

I agree!

Modern technology (the general purpose computer and the internet) has made copyright unenforceable. And in the same manner, they’ve made it possible for creators to create and distribute for little or no cost, to make a living doing so, and for billions of people to have access to what they’ve created.

How anyone can possibly see how those things are undesireable is an idea that I cannot fully grasp at an instinctual level.

Anonymous Coward says:

Re: Re: Re:5 And this is why....

Citation needed. Show where ‘illegal downloading has put a huge dent in revenue for music labels.’

Yes, revenue is down so budgets are down but that’s not the same thing.

However, there is a positive and it’s not just a positive spin either: the music industry is growing. There’s more music now. More albums are being made now. What’s down is legacy recording industry revenues. That’s nothing to loose any sleep over.

Lowestofthekeys (profile) says:

Re: Re: Re:6 And this is why....

“More albums are being made now.”

This is one more contributing factor to the decline in sales.

There has been an absolute saturation of music into the market since it’s become easier and cheaper to make it. I think that this is problematic because you have a lot of similar sounds out there, but I think it encourages artists to try and be more unique and creative in their approach to music, which could be considered a bad or good thing.

PaulT (profile) says:

Re: Re: Re:7 And this is why....

“This is one more contributing factor to the decline in sales. “

I hear phonograph and piano roll sales are also down… burn the pirates!

“There has been an absolute saturation of music into the market since it’s become easier and cheaper to make it.”

But if you want to you’re as likely to hear Hendrix as Rick Astley. Distribution is as democratised as creation, and that’s scary to the people who just want to send One Direction out to get the NKOTB money…

Lowestofthekeys (profile) says:

Re: Re: Re:3 And this is why....

“So trying to say piracy is ok because there have been some record labels that have pulled some shady shit just doesn’t fly.”

There may be some here who advocate piracy (I don’t) but there’s a lot of people here who aren’t big fans of it, and do realize it has a part in the monetary woes of musicians.

I also agree that piracy is not justified by the hypocrisy of some of the record labels. However, their hypocrisy makes it more difficult for some people to take them seriously.

In my opinion, change for the better needs to come from the record labels. So many musicians are irate with spotify’s payouts when the company is giving a large chunk of it’s revenue to the record labels, and trying to stay afloat with whatever’s left over. The artists should be lobbying for change in the royalty rates and the accounting practices, instead of attacking the services that help people find their music.

MrWilson says:

Re: Re: Re:3 And this is why....

Yes, cheating artists out of the proceeds from the actual sale of their work isn’t nearly as bad as people not paying for something that they may not have paid for anyway, or have already paid for in a different format, or aren’t able to legally purchase in their area, or who spent more on concert tickets and merchandise that goes more to the artist than $1 downloads they avoided purchasing.

Between real money and hypothetical money, I’d favor real money.

dennis deems (profile) says:

Re: Re: Re:3 And this is why....

And btw, you could add up every nefarious deed ever committed by every record label in history, and it still wouldn’t come remotely close to equaling the amount of illegal downloads that have happened in the past 13 years.

I’d absolutely love to see the math by which you arrived at that conclusion — particularly as the cases we know of musicians being screwed by the labels for their entire career and beyond are merely the cases we know about. You know what they say about the cockroaches you see.

Anonymous Coward says:

Re: Re: Re:3 And this is why....

No one has said that piracy is ok.
What has been said is that piracy can be dramatically reduced by intelligent business opportunities and practices. Also, no one has ever said that it will completely go away. I think any brick and mortar store owner can tell you that shop lifting can be minimized and accounted for. Criminals exist.

And to extrapolate on what you said, because your industry is rife with criminals, the government must protect it’s artists. Pretty sad.

But to be on point with the current discussion, current copyright laws are far beyond what was originally envisioned. The punishments afforded by these laws exceed the ones given for murder and other heinous crimes. This clearly appears to be a case of misapplied priorities.

Furthermore, copyright has proven repeatedly to stifle innovation significantly. Even when it has been shown that many artists used already existing material to create their own. The very material those artists are demanding payment for the use of. Seems a bit disingenuous doesn’t it?

Copyright as it was designed served a clear purpose. As it stands now, it only serves to further greed and control. I would say that the worlds population, who fund the copyright laws, are not getting their monies worth.

I am guessing that you make the majority of your income from copyright in one form or an other. Good for you. You are in a unique position to see both sides of the argument. Keeping copyright is fair. Keeping copyright as it currently exists, is unfair and will eventually drive innovation out of this country. It is up to people like yourself, you get engaged in both sides of the argument and ignore the rhetoric from each side, to find a balance that keeps your industry and others alive and vibrant.

Anonymous Coward says:

Re: Re: Re:3 And this is why....

And btw, you could add up every nefarious deed ever committed by every record label in history, and it still wouldn’t come remotely close to equaling the amount of illegal downloads that have happened in the past 13 years.

Really? Using what units? If you’re going to compare the two we’d need to quantify it first so obviously you’ve got some units in mind? Oh, you were just pulling comparisons out of your ass? Carry on then.

So trying to say piracy is ok because there have been some record labels that have pulled some shady shit just doesn’t fly.

Seems like a perfectly good reason to refuse to do business with the labels and functionally there’s not any difference between the two.

PaulT (profile) says:

Re: Re: Re:3 And this is why....

You know what I love? The fact that every time that these kinds of messages are posted, they’re from people who “make their living within the recording industry”. People who neither list their credentials nor state their names, but lash out wildly at the people who pirate. Who never take into consideration that there’s more nuanced positions, that the industry being criticised doesn’t deserve defending and that the problems people like me were pointing out 30 years ago are still happening. Only consumers don’t have to stick to your methods…

“Everyone, it seems, wants to work in this business. “

I don’t, I just want to listen t what the talented people in it want to make. Guess which industry gets between us and stops me spending my time and money on them?

“So trying to say piracy is ok”

I didn’t say any such thing asshole, but I still heavily criticise your industry. What do you make of that?

MrWilson says:

Re: Re: Re: And this is why....

I agree that musicians and artists should be properly represented when it comes to copyright discussions and policy. But what does that have to do with an organization made up of large corporations who not only fail to represent artists and musicians, but also are the biggest abusers of artists’ rights?

And while artists are indeed the ones whose privileges granted by copyright are most abused in that narrow context, it’s the public’s natural rights which are most abused by the state of copyright law. Citizens who are neither pirates nor consumers of music from the RIAA companies have had their freedom of speech assaulted, their government corrupted, and their ability to have a voice in their own government drowned out by the money that organizations like the MPAA put into politics.

How much of any lawsuit settlements or awards went to those artists?

They just appointed a crack dealer to head the DEA and you’re cheering the fact that the crack addicts have representation now.

Gwiz (profile) says:

Re: Re: Re:5 And this is why....

Not sure where you got this figure, but there is no blanket percentage of their income that a musician makes from record sales; depends whether not they tour, what rate they negotiated in their record contract, etc.

Take a look at this chart from Peter DiCola’s Money from Music: Survey Evidence on Musicians’ Revenue and Lessons About Copyright Incentives. It show us that “composers” make about half of their income directly or indirectly from copyright. The rest of musicians (not including the top 5% income earners in Pop, Rock, etc. – otherwise known as the “lottery winners”) make less than 25% of their money directly or indirectly from copyright and most of those percentages are much smaller than 25%.

I’m simply not convinced that sales of recorded music really is all that important to a musician’s bottom line.

Mr. Applegate says:

Re: Re: Re:3 And this is why....

Looks like a corporation to me. More specifically a Not for Profit Corporation.

A quick search turns up:

———————-
NYS Department of State
Division of Corporations
Entity Information
The information contained in this database is current through January 31, 2013.

Selected Entity Name: RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC.
Selected Entity Status Information
Current Entity Name: RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC.
DOS ID #: 76630
Initial DOS Filing Date: SEPTEMBER 04, 1951
County: WESTCHESTER
Jurisdiction: NEW YORK
Entity Type: DOMESTIC NOT-FOR-PROFIT CORPORATION
Current Entity Status: ACTIVE

JEDIDIAH says:

Re: Re: Re: And this is why....

Are you joking?

The RIAA isn’t musicians. It’s publishers. They are the group abusing musicians. They are the ones that trample the rights of musicians the most.

P2P are amateurs when it comes to piracy when compared to the RIAA.

…not that it makes sense to appoint ANY ONE with an axe to grind regardless of how legitimate you think their grievances are. These posts should be as free from bias and politics as possible.

Anonymous Coward says:

Re: Re: Re:2 And this is why....

Musicians have had their work exploited by outside profiteers en masse without compensation for 13 years. The government has done little to nothing to help protect their legal rights. I think even those ICE busts only went after a couple domains out of the hundreds they shut down.

The sad truth is that the government really doesn’t care about musicians.

nasch says:

Re: Re: Re:3 And this is why....

Musicians have had their work exploited by outside profiteers en masse without compensation for at least 65 years. The government has done little to nothing to help protect their legal rights.

FTFY. The outside profiteers are the record labels. I say outside because they’re certainly not musicians.

Mr. Applegate says:

Re: Re: Re: And this is why....

Yes it is!
A quick search turns up:

———————-
NYS Department of State
Division of Corporations
Entity Information
The information contained in this database is current through January 31, 2013.

Selected Entity Name: RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC.
Selected Entity Status Information
Current Entity Name: RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC.
DOS ID #: 76630
Initial DOS Filing Date: SEPTEMBER 04, 1951
County: WESTCHESTER
Jurisdiction: NEW YORK
Entity Type: DOMESTIC NOT-FOR-PROFIT CORPORATION
Current Entity Status: ACTIVE

anonymouse says:

Re: Re: And this is why....

I think this is where the government has lost touch with the people. When you create laws that just do not make sense and are themselves totally unfair to anyone other than the big businesses those laws will either be ignored as copyright law is , or will create a problem in the industry as there is no balance, just as laws causing problems with patents and laws regarding unions has caused a big problem with wages not only not keeping up with inflation but being lowered as big business gains more and more power by getting only the laws passed that are in their perceived best interests.

Nobody I know respects any form of copyright law now, we see all the time where patents are stifling innovation in the US and the rest of the world where they are honoured. And unions around the world have been destroyed, and that is casing businesses to not only benefit from lower wages but suffer from people having no loyalty to any business they work for like they used to, this becomes a problem and a problem that can only be fixed by having the public and the citizens involved in creating the laws and putting the public interest before big business. But as we have seen with many recent trade agreements , those affected are not even allowed to know what is being discussed never mind have a say.
It will all come to a stop though as government’s see higher unemployment and much lower taxes received, they can only bleed the public for money for so long until there is just no more blood to give.

excuse my writing on some serious medication at the moment.

Rikuo says:

Re: Re: Re: And this is why....

I know I’m a couple days late, but what the hell.

From your article

“Brands like Coke and Pepsi do not seem to appear on pirate sites”

Why would you expect SOFT DRINKS COMPANIES to be appearing on “pirate sites”? Did you write that article with the expectation that you would fire up a torrent and have a can of Coca Cola magically appear in your hand?

Anonymous Coward says:

Re: And this is why....

“I still trust Google over the U.S. Government, despite the fact that Google does a lot of evil things in the world.”

be careful what you wish for…

http://www.cccblog.org/2013/01/20/vint-cerf-appointed-to-national-science-board-by-president-obama/

http://www.wired.com/threatlevel/2012/03/ff_nsadatacenter/all/

The NSA Is Building the Country?s Biggest Spy Center (Watch What You Say)

Anonymous Coward says:

*pops on conspiracy theorist hat*

It’s all mind control, man! The lizard aliens from proxima centauri are trying to take over our coulture! You think aliens care about who they hurt to control our minds? No! It’s all out there, man! But they won’t have me. They can’t silence me! I know you’re out there, aliens! I know your plan and you won’t get away with it while I’m aliiiil;jsafd

davnel (profile) says:

What I don’t understand is this:
I got my first cell phone in Dec 2005. Within two months I had cancelled my land-line phone account with Qwest, relying solely on wireless. This has been happening continuously to the point where AT&T is now talking about shutting down the copper phone network and, likewise, relying solely on wireless. Please observe that AT&T posesses the largest copper network in the US, but they are quietly, and likely gleefully abandoning hardwired service for wireless. Why can’t Hollywood follow the same general path without all the hystrionics?

PaulT (profile) says:

Re: Re:

“Why can’t Hollywood follow the same general path without all the hystrionics?”

They used to have one revenue stream – theatres. Over the following few decades, they built up numerous other revenue streams (ironically only after trying to fight them tooth and nail) – licencing to TV and other venues followed by cable/satellite, home video rental, home sales, etc. On top of this, they could filter out material when and where it most suited them, meaning that people often had to pay multiple times for the same content, were forced to wait or perform expensive import or premium purchases. Everything was set up to benefit them, and there were only a few distributors and studios truly in control.

The new technologies remove all of this. Release dates don’t matter, format windowing can be bypassed, as can regional windows. Many of those people who used to pay multiple times for the same content now only pay once, often through less profitable avenues. The gatekeepers can easily be bypassed, meaning that they no longer guarantee the lion’s share of the revenue available, and there’s no way to force people to consume in the way the studios prefer, nor their content at all.

In short, they loved the old setup where they had complete control and little competition. The new setup not only brings in competitors, but gives the viewer a real choice in what, when and how they consume movies. They don’t want that, they want the profits and control that came with the old models. So, they fight…

MrWilson says:

Re: Re: Re:

Which pops the balloon in any argument made on the point that music labels are making less money than they used to. The recording companies had an artificially inflated profit margin because they were able to monetise the same content in multiple, overlapping ways. The technology has reduced their ability to do that and now they’re screaming that they can’t gouge people anymore.

Josef Anvil (profile) says:

Re: scary

I don’t know if AT&T is trying to abandon their fixed service or not, but it does seem plausible.

They have had the hardest time trying to convince the public to accept data caps on fixed service (copper and fiber), but they have had phenomenal success in training the public to pay for minutes on mobile and data caps over mobile. That is back to the way it used to be on fixed service. A cash cow.

They don’t want the public aware that they’ve already merged their fixed and mobile networks and their costs of service are the same for either. Migrating to completely mobile service is not moving into the future for the telcos, but rather going back to the old days of charging per minute and even better charging for huge overage fees on small data caps. Well done, AT&T. Enjoy it until you’re dismantled again.

Josh in CharlotteNC (profile) says:

Re: Re:

Why can’t Hollywood follow the same general path without all the hystrionics?

This will hurt to say: Because compared to Hollywood, mobile phone service is highly competitive.

If you want mobile phone service, you have between 3 and 8 choices of companies (depending how you count).
If you want to see NewMovieXYZ (legally), you have exactly one choice as to where your money goes: the studio that distributes it. Sure, there are other movies you can see, but they will be significantly different experiences.

There’s also the difference between infrastructure. AT&Ts copper is old and costs AT&T money to maintain and upgrade. They’re not necessarily wanting to get rid of it entirely, they just don’t want to have to keep maintaining parts of it (as required under various laws). They’ll use much of it for other things, all the backhaul and fiber for the calls going through their mobile towers, for instance.

For Hollywood, their studios are nothing but money makers. The production companies (that never show a profit on paper) pay for them. They don’t own the theaters (anymore) so don’t have to pay for that, and most of the ticket money theaters make goes directly back to the studios anyway.

There are other reasons, of course, but think about the money first.

Anonymous Coward says:

Could you imagine the Copyright Office naming a top EFF litigator as second in command? Exactly the point.

Could you imagine Techdirt naming a top pro-copyright litigator as second in command? Exactly the point. Sorry, Mike, but your anti-copyright zealotry is showing. Tell us again how you’re just not sure whether or not we should have any copyright. I’m sure there’s one or two idiots who’ll believe you’re actually on the fence. In the meantime, since you’re so undecided and so on the fence, can you point me to even one article written by you out of the thousands wherein you take a stance that could be classified as even remotely pro-copyright? I mean, if you’re so undecided, surely your writings must reflect this indecision. Oh wait, all of the thousands are squarely in the anti-copyright camp. Weird. It’s almost like you’re a fake and a coward who’s too dishonest to say what he really thinks.

Anonymous Coward says:

Re: Re: Re:2 Re:

Let me ask you this. Mike claims that he’s on the fence about copyright. He’s just not sure whether or not we should have any. Given the fact that he’s written thousands of articles about copyright, he should be able to find at least one sentence in one article that reflects his indecision. Right? Be honest. What do you think?

Rikuo (profile) says:

Re: Re: Re:7 Re:

I thought I told you to fuck off. I thought I had exposed you for the angry, selfish, egotistical whiny man child that you are.
Yet here you are, tooting the same horn. AGAIN. Tell me, should I add masochist to the above list? All you’re doing by constantly demanding a debate here in the public forums is hurting yourself, and what little credibility you had to start with.

AJ…NONE of us want you here. No-one. You contribute precisely ZERO to any discussion in the comments. You’ve advocated for the removal of the presumption of innocence in court trials, you’ve conflated copyright infringement with murder and rape, and you’ve bogged down the comments with selfish demands that you know will never be met, yet still make them anyway.

SO KINDLY FUCK OFF!

Anonymous Coward says:

Re: Re: Re:8 Re:

AJ…NONE of us want you here. No-one. You contribute precisely ZERO to any discussion in the comments. You’ve advocated for the removal of the presumption of innocence in court trials, you’ve conflated copyright infringement with murder and rape, and you’ve bogged down the comments with selfish demands that you know will never be met, yet still make them anyway.

AC or AJ, you should listen to the leprechaun. TD is not interested in anything resembling debate or dissent. Other than you and a few others, it is simply a large, self-reinforcing ecosystem of piracy apologists, hypocrites and wannabe anarchists. They scream about censorship, but routinely vote to hide even reasonable comments that run counter to their master’s narrative.

Masnick is completely opposed to copyright. That should be evident. His rhetoric makes it undeniable. But he’ll never come out and say it because it would destroy any appearance of a vestige of reasonableness he may have (which is close to zero) outside of the community of anti-copyright jihadists. He wants to be relevant in the discussion. But he’s not and it’s unlikely he ever will be.

Note that the TD lunatics include almost no one who make their living exclusively in the motion picture or television industry. Of course they are anti-copyright, their livelihoods aren’t affected. On the contrary, they benefit financially from piracy and the destruction of copyright because they are getting something of value for free. And they justify it with silly things like complaining about copyright length, when most of the stuff they’re stealing is the most recent releases. They fabricate these parades of horribles surrounding censorship and collateral damage- not because those are inherently so bad, but knowing that is the only justification that can be made to argue against anti-piracy measures. It’s the restricting of free access to content that is their issue, collateral damage is the tail wagging the dog.

Suffice it to say that the screws will continue to tighten. SOPA was a valuable lesson. No law that restricts freeloaders access to free content will ever pass. Industry cooperation and industry enforcement will continue to march forward. The ISP’s have a financial interest in content distribution, the payment processors have little at stake economically to wish to defend business relationships with infringing sites. The ad networks, including Google seem to be cooperating as well.

So what’s next?

I’d expect the licensing/regulation of encryption and VPN’s to appear on the horizon before long. Of course, it will be done as necessary national security legislation. However, I wouldn’t be too surprised if there was significant collateral damage done to content freeloaders as well.

Have a nice day!

Anonymous Coward says:

Re: Re: Re:9 Re:

“They scream about censorship, but routinely vote to hide even reasonable comments that run counter to their master’s narrative. “

Really? Care to share any hidden reasonable comments that aren’t rife with insults?

“So what’s next? “

Bankruptcy for the copyright cartel, which will be poetic and awesome, but you keep on complaining about a little tech blog.

Anonymous Coward says:

Re: Re: Re:10 Re:

Really? Care to share any hidden reasonable comments that aren’t rife with insults?

Are you kidding? It happens all the time. Here’s one from above. Polite, straightforward, no insults or profanity- but questioning of the TD narrative:

“What do you think Jeff? Do you honestly believe that Mike is completely on the fence about his feelings for copyright?”

Anonymous Coward says:

Re: Re: Re:13 Re:

Yes, I have, but at least he stays on subject.

Have you seen the many comments AJ has that aren’t hidden? Those are his most enlightening moments where he is actually discussing things instead of having a pissing match with Mike, and they don’t get reported because they add to the discussion.

I know that’s a difficult concept to wrap your head around, but people here do like to have constructive discussions.

Anonymous Coward says:

Re: Re: Re:16 Re:

I still don’t see the double standard. Gorehound doesn’t taunt whoever’s writing the blog.

Seriously? You consider this censored post taunting? Maybe try dictionary.com

“”What do you think Jeff? Do you honestly believe that Mike is completely on the fence about his feelings for copyright?””

Anonymous Coward says:

Re: Re: Re:17 Re:

I’m not really sure what point you’re trying to make. You obviously know that AJ was saying this to goad Mike into a fight and that can be seen by Mike’s various reactions to references about how he is apparently “on the fence.”

My brothers and I used to do this when were young. We’d keep repeating the same thing over and over, even if it made the other person irritated.

The fact that you can’t acknowledge the mocking tone of AJ’s constant reference to “sitting on the fence” is pretty hilarious.

Anonymous Coward says:

Re: Re: Re:9 Re:

Masnick is completely opposed to copyright. That should be evident. His rhetoric makes it undeniable. But he’ll never come out and say it because it would destroy any appearance of a vestige of reasonableness he may have (which is close to zero) outside of the community of anti-copyright jihadists.

It is abundantly clear that he has strong feelings about all things copyright. That’s why his pretending to be “agnostic” about whether we should have any is being met with disbelief from even his most ardent supporters. Thanks for the comments.

Anonymous Coward says:

Re: Re: Re:11 Re:

There’s an “assume” joke in there somewhere, but it’s good to know you’re sure of yourself, AJ. That kind of confidence will take you far in the world of guilty until proven innocent.

Given how incredibly opinionated he is about copyright, it’s clearly disingenuous for him to pretend like he’s incapable of having any opinion on this.

Anonymous Coward says:

Re: Re: Re:13 Re:

That’s not really your prerogative to determine that, is it?

It’s not my prerogative to make an obvious conclusion? Can you name one other person who has published even half as many words critical of copyright as Mike has? I can’t. To say he’s opinionated about copyright is to say the sky is blue.

Rikuo (profile) says:

Re: Re: Re:9 Re:

” TD is not interested in anything resembling debate or dissent.”

Many a time, I’m the one calling for debate. And by debate, I mean a sane rational argument, with both sides backing up their point of view with quality evidence.
AJ doesn’t do evidence. In the last article we had about Six Strikes, he kept claiming that no-one is being accused of breaking the law, that the accusations come from the ISPs (who are for some reason paying someone else to make these accusations?) and other such bullshit statements.
Not only that, but he’s constantly stopped any form of debate here on TD by constantly demanding a debate with Mike. As I’ve said before, no-one here in the comments care whether Mike debates with him or not. If he actually wants to debate Mike, then why doesn’t he send an email saying “This time, This Place, let’s do it”? No, AJ is the complete opposite of a debater.
Oh, and why are you going with an ad hom (leprechaun)? Is that really the best insult you can come up with? I know I’ve called AJ all sorts of things, but those insults I’ve called him…were the result of what he’s written. AJ is whiny, he is egotistical, he is selfish. Are you finally admitting that I am Irish, and therefore, not Mike Masnick in disguise?

We’ve explained to you about censorship before. Your comments are still viewable. You can, if you choose, continue to comment here from now until the end of time. However, I am urging you NOT TO. It is because YOU ARE NOT WELCOME. If you actually debated, in a calm and rational manner, you would be. You don’t.

So what if Mike really is anti-copyright? It’s a man-made law, and people can be pro and against certain laws. Even though I would never smoke, I’m against the criminalisation of smoking pot. When you go on about what exactly Mike is…you’re not debating the points of his beliefs. You are attacking Mike simply because he holds them. To you, Mike Masnick is not allowed to be anti-copyright. No-one is. Copyright is the holiest law of them all, and should never be questioned. If you are really so pro-copyright, come here, debate RATIONALLY and CALMLY your points, list them out in bullet form if you have to (I’m even giving you some free fucking tips, I’m that nice). DO NOT ATTACK US for simply holding certain views, as if merely having them is automatically wrong.

“Note that the TD lunatics include almost no one who make their living exclusively in the motion picture or television industry. Of course they are anti-copyright, their livelihoods aren’t affected.”
That part actually made me laugh out loud. I’m going to divulge a certain fact about myself. I work in a supermarket chain, a grocery and textile chain. According to what the MPAA says…my livelihood IS being ruined by anti-copyright jihadists! They have counted grocery employees as the victims of online file sharing.

“Fabricate” Really? So every story that is run on Techdirt, of artists being silenced, of people being accused and punished, then questions asked…are false?

To sum up: Get out. Unless you are willing to talk sense and actually use evidence and truth in what you write, then get out. I don’t like you. I don’t want to read another word from you. I’m sick of constantly reading the comments, of seeing great view-points being written…and then running into YOU.

Anonymous Coward says:

Re: Re: Re:10 Re:

To sum up: Get out. Unless you are willing to talk sense and actually use evidence and truth in what you write, then get out. I don’t like you. I don’t want to read another word from you. I’m sick of constantly reading the comments, of seeing great view-points being written…and then running into YOU.

There’s a wet spill on Aisle 6. Why don’t you tend to that instead. You seem to be a bit too thin-skinned and prissy to engage in rough-and-tumble policy debates.

alanbleiweiss (profile) says:

Re: Re: Re:9 Re:

“TD is not interested in anything resembling debate or dissent.”

I’m quite happy to sit here and inform you that is absolutely not the case. I’ve had extensive dialogue with others on this site where we had opposing views and I’ve never been censored by communal vote. In fact, I’ve had a number of debates that extended for dozens of back and forth comments – for example, in my opinion related to copyright as a right of inheritance.

The difference you so completely fail to acknowledge however, is when I engage “the majority view” here, it’s through intellectual, well thought out position, point and counter-point.

Because unlike trolls who repeatedly and consistently only or mostly slam Mike just to get him to engage in an argument with someone who comes here close-minded and refusing to discuss differing views intellectually, my methods actually contribute to the discussion.

As for Mike’s position, it’s much more abundantly clear than you make it out to be, at least from my perspective. That position? That copyright, patent law and related issues are extremely messed up in their current form. And further, a great many problems come along where maximalists do all they can to act the bully.

And besides, unlike some blow-hards, like Bill O’Reilly, who claim “fair and balanced”, this isn’t a site that pretends to be neutral in the extreme. Because being neutral in the extreme is not a basis for a site that promotes dialogue.

So the bottom line then, in my view, is “does dialogue require allowing an asshat to spit vomit over and over again, without offering any serious volume of dialogue?”

And if the community feels that’s not acceptable, it’s the community that votes a comment into oblivion.

Except I routinely expand such comments so I can read them and guess what I’ve found? The overwhelming majority that have been hidden are complete and utter trash. Oh. how odd…

Anonymous Coward says:

Re: Re: Re:10 Re:

Yes, Mike thinks copyright is completely messed up. Funny how he never acknowledges any of the positives. Never once do he ever mention those. He has no interest in perspective or balance or fairness. He lives in a naive world where since a couple famous people whipped up a frenzy on the internet, that means we should dump the whole copyright system altogether. Try and get Mike to talk about the nuances or details of anything, and you get nowhere. Mike doesn’t discuss details. Mike doesn’t address the tough issues that are fundamental to the copyright debate. Mike just shits on everyone else’s beliefs while being too scared and dishonest to put forth an opinion of his own that actually addresses the issues. Here’s Mike’s argument: JoCo worked up the internet into a frenzy over the Glee situation, ergo, no need for copyright! How dumb is that? Pretty fucking sad and dumb. Sorry, but I now get that Mike doesn’t have anything close to the goods, and he probably never will. That’s why for almost three years he’s been running away from me like a little child. He can’t carry his side in a debate, that much he’s proven 1000 times over.

PaulT (profile) says:

Re: Re: Re:11 Re:

“Funny how he never acknowledges any of the positives.”

Which positives, and are they outweighed by the negatives? Could you name them – bearing mind that creating a pension for your grandchildren while less successful works literally rot away in vaults isn’t a positive.

“That’s why for almost three years he’s been running away from me like a little child.”

There’s only one child I see here on a regular basis, and it’s not the guy who wrote this article. A whiny, lying, petulant child, at that…

Anonymous Coward says:

Re: Re: Re:3 Re:

I think you’re an idiot, and Mike certainly has an opinion on whether or not we should have copyright. You can find it by ACTUALLY reading the articles on this site.

What you won’t find, or get, is Mike wanting to have anything in the way of a discussion with you. Why? [points at your comments] Because you’re incapable of acting like a mature and reasonable adult. At the end of the day, Mike, like the rest of us, realizes that having any kind of meaningful discussion with you is an exercise in futility. No matter what he says, what evidence he presents, etc. you’ll never be satisfied with any response he gives one way or another. He also realizes, like the rest of us, that you’ll never shut the fuck up regardless and you’ll just keep trolling like you’re doing now (but at least you’re not going off the rails like last time… yet). So his silence is at least being done for a positive reason, it doesn’t necessarily silence you but it gives you less to harp on about. As opposed to responding to you and then you getting riled up over whatever he may say and then further derailing threads when he throws up his hands and basically says, “Fuck this. You sir are a complete loon and I have no idea why I even entertained the notion that I could speak to you and get anything in the way of a proper logical and reasonable response. At least without ad homs thrown in on your part or demands to answer loaded questions.”

So seriously, stfu already. Mike obviously isn’t going to answer you. Obviously he’s not open and honest blah blah blah. So there, you’ve won. STOP FUCKING REPEATING YOURSELF OVER AND OVER AND FUCKING OVER. You’ve made your point. We don’t need you to ask/state the same bullshit in EVERY SINGLE FUCKING ARTICLE EVERY SINGLE FUCKING DAY. It’s annoying. So be an open and honest and REASONABLE human being and just fucking let it go already.

Anonymous Coward says:

Re: Re: Re:4 Re:

Okay we’re getting somewhere. You think that Mike “certainly” has an opinion about whether or not we should have copyright. Great! So that means you must agree that he’s lying when he pretends otherwise.

Now I’m wondering, is there any person who actually believes that Mike has no opinion about whether we should have any copyright? If so, please explain.

Aaron *Head* Moss (profile) says:

Re: Re: Re:5 Re:

My question is, if you find Mike so dishonest why come to “his” website?

Seriously. If I find a site and I feel the owner or one of the admins are dishonest and resort to lies all the time, I’ll find somewhere else to hang my hat.

So my question to you is, why do you care so much about Mike and what he writes?

Anonymous Coward says:

Re: Re: Re:6 Re:

My question is, if you find Mike so dishonest why come to “his” website?

Seriously. If I find a site and I feel the owner or one of the admins are dishonest and resort to lies all the time, I’ll find somewhere else to hang my hat.

So my question to you is, why do you care so much about Mike and what he writes?

Simple. He’s the loudest, most opinionated person in the copyright debate. He purports to have only opinions based on evidence. I think it’s easy as pie to show that most of what he posts is faith-based, biased nonsense. That he won’t defend what he writes, and that he can’t be honest about his own beliefs while being hyper-critical of everyone else’s, says it all. I’m doing what he says people should do: publicly shaming him and calling him out. Yet, even on his own turf with all the sycophants, fanboys, and sockpuppets to defend him, he is still too scared to discuss nuances and details. Hmmm. Funny that. The more dishonest I think him to be, the more I’m going to post here reminding everyone of that. I think the world should know what MM is all about–and it ain’t pretty.

Tell me this, Aaron. Do you honestly believe that Mike has no opinion one way or the other as to whether we should even have any copyright rights? If not, then why do you think he’s lying? If so, how did you arrive at this opinion? I think the thousands of articles he’s written that all take an anti-copyright POV are proof positive that he’s anti-copyright. Yet, he’s unable to discuss that honestly. It’s really remarkable.

Aaron *Head* Moss (profile) says:

Re: Re: Re:7 Re:

I’m sure Mike has an opinion on the matter. I haven’t read enough of his articles on the matter to know EXACTLY how he feels, but the way I see it, it’s not that he’s actually AGAINST copyright, but he’s against the abuse of copyright that’s been going on.

I’ve never said he’s lying about anything. That’s on you. The articles I’ve read are usually no so much anti-copyright, but anti-copyright abuse.

And he’s written several times (whether he believes it or not is not my concern) that he believes in copyright, but not the way it’s currently being handled and the way that the MPAA/RIAA runs roughshod over the everyday people’s concerns, wants and needs.

And while I might not agree 100% with everything that Mike says, I agree with enough of it, to keep reading his articles.

Now if it gets the point where I believe Mike is lying and all of his articles are BS, then I’ll go elsewhere, because honestly, I have more important things to do with my time/life then spend time on a site that I think is being run by someone so dishonest.

If you have nothing better to do with your life, then I guess you can feel free to continue to rant and rave and tilt at the windmills.

Anonymous Coward says:

Re: Re: Re:8 Re:

I think that is the AC’s issue. Techdirt spends a ton of time articulating how the copyright system is broke, misused, abused- but I don’t recall seeing a single, unified article outlining how copyright should be, and what are acceptable, viable methods for enforcing the legitimate property rights of copyright holders.

It’s far easier to attack a system than to build one. I see lots of the former but almost none of the latter.

But I doubt this is the place; for in order to make any progress there has to be a basic acknowledgement of a creator’s right to exploit his intellectual property. Most here aren’t dependent on the markets suffering the corrosive effects of piracy to earn their living. In fact, they’re economic beneficiaries of piracy.

Lowestofthekeys (profile) says:

Re: Re: Re:9 Re:

“but I don’t recall seeing a single, unified article outlining how copyright should be”

If you browse the comments, there are occasional suggestions for improvement. I have read a few articles here of examples of ways to overcome piracy as well. I guess that’s why subjectivity is such a good thing.

“It’s far easier to attack a system than to build one. I see lots of the former but almost none of the latter. “

So if you see something wrong with a system and point it out, it’s considered attacking?

” Most here aren’t dependent on the markets suffering the corrosive effects of piracy to earn their living. In fact, they’re economic beneficiaries of piracy.”

Mmm, how do you know that?

John Fenderson (profile) says:

Re: Re: Re:9 Re:

I don’t recall seeing a single, unified article outlining how copyright should be, and what are acceptable, viable methods for enforcing the legitimate property rights of copyright holders.

You require a single, unified article instead of the collection of articles and comments that routinely discuss aspects of this very thing?

Also, you’ve already chosen really limited parameters for what constitutes a proper discussion. Why should it be limited to discussing better methods of enforcing copyright law?

The majority of the discussion here, and there’s tons of it, is around how an artist can thrive in a world where piracy is a reality, without causing so much collateral damage to innocent others.

Anonymous Coward says:

Re: Re: Re:13 Re:

Seriously? I invest $2 million and five years of my life to make a movie and I am not entitled to any exclusivity? You’d have the same right to monetize it that I do? You can’t actually believe that, can you?

This is exactly the type of question that Mike can NEVER give an answer to. Mike, please tell us your opinion on this. Please don’t pretend like you would have to have some function maximalized. You can’t even tell us what the variables would be in that calculus, much less whether it’s maximized or not. Stop hiding behind excuses. Stop running away from taking a position on the fundamental normative issues. Tell us your honest opinion so that we can have a productive dialogue. Stop pretending like your nonanswers have done anything to further the debate. We know you hate copyright. Sit down at the table and discuss the issues. Stop hiding behind the excuse of incomplete data sets on issues that will always have incomplete data sets.

Robert (profile) says:

Re: Re: Re:14 Re:

I am beginning to see why the “Googles” (aka the techies who create technological advances outside of the Entertainment industry) don’t enjoy sitting at any tables with you.

That explains a lot of the SOPA problems too, all the RIAA BS of “Just talk to us” – just like you’re doing now.

Mike answered your questions, you just keep rehashing and rewording and trying to get what you really want: “We know you hate copyright.”

If you truly believe that, in spite of what he has already said which is counter to that, why keep bugging him?

Anonymous Coward says:

Re: Re: Re:15 Re:

I am beginning to see why the “Googles” (aka the techies who create technological advances outside of the Entertainment industry) don’t enjoy sitting at any tables with you.

That explains a lot of the SOPA problems too, all the RIAA BS of “Just talk to us” – just like you’re doing now.

Mike answered your questions, you just keep rehashing and rewording and trying to get what you really want: “We know you hate copyright.”

If you truly believe that, in spite of what he has already said which is counter to that, why keep bugging him?

The thing I’m talking about is fundamental unfairness. I think that not giving authors any copyright rights is fundamentally unfair. Mike is trying to say that since we can’t maximize some function–a function that he never actually produces other than to say the indeterminable that it promotes the progress–then he’s completely unable to have any opinion either way as to whether authors should ever have any rights. It’s clearly an excuse. He’s pretending like I’m asking him to prove something as fact. I’m not. I just want his opinion. Given how opinionated he is about copyright in general, he can surely come up with some opinion here. What’s his best guess? That’s all I’m asking. The fact that he won’t give an answer should tell you how little he cares about doing anything other than shitting on everyone else’s beliefs. He has no intent to ever discuss the specifics about his beliefs. He’ll just pretend that since he can’t know for sure, that means it’s impossible to have an opinion. Only problem with that is the fact that he’s able to have so many other opinions about copyright even though he isn’t 100% sure. It’s only when faced with a direct question that he’s too chicken shit to answer does he pull out this excuse. I just want his best guess. We all know for a fact that he has an opinion.

Anonymous Coward says:

Re: Re: Re:17 Re:

Why?

I’m asking the most opinionated guy in copyright for his opinion as to whether we should have any copyright. He says he’s willing to chuck the whole system if some magic formula that he never produces tells him that the public good is being maximized. That’s great and all, but it doesn’t tell us anything since he never tells us exactly how to gauge whether the progress is being promoted and maximized. I’m asking him to get off the fence and give us his best guess either way whether artists should have any rights in their works as a matter of opinion. Once we understand his normative views, we can begin to discuss the relative strengths and weaknesses of his arguments and beliefs. As it is now, he just tells us why everyone else is wrong without ever telling what he thinks is right. That’s not nearly as productive as sitting down at the table with an actual, articulate position. I want to discuss his beliefs and my beliefs and other people’s beliefs on the merit. IMO, just being hyper-critical of everyone else isn’t maximizing the public good. He should sit down and give us his views. Pretending like he can’t have any because he doesn’t know for sure is an excuse. I don’t know for sure either. Nor does anyone else. But we obviously disagree on much of the fundamentals, and that’s the natural place to start if we are going to have a real conversation on the merits. From what I can tell, Mike has no interest in such discussions. That’s why he runs away every time.

Robert (profile) says:

Re: Re: Re:16 Re:

More like he’s already answered it for the umbrella of copyright in general, which applies to any art, authors or not.

The only people screwing authors over on copyrights are the publishers.

Again you seem like this:
YOU: “Mike is murder wrong? Does it make us feel unsafe?”
MIKE: “Yes, of course, though I don’t have the data to give you a quantifiable, absolute proof with regards for safety. However, there’s no excuse for murder”
YOU: ” You didn’t answer my question, is murdering via death row wrong?”
MIKE: “WTF?”

Karl (profile) says:

Re: Re: Re:16 Re:

I think that not giving authors any copyright rights is fundamentally unfair.

Why is this more “unfair” than not copyrights to plumbers, assembly-line workers, auto mechanics, secretaries, customer service representatives, chefs, or lawyers?

Why is it more “unfair” to authors than it is to graphic designers, commercial jingle writers, recording engineers, radio/TV personalities, actors, or wedding-band musicians?

These people do not receive a post-publication monopoly on the work that they did. Yet they all get paid, and their employment is not considered unfair. What makes authors so special?

Karl (profile) says:

Re: Re: Re:17 Re:

Also, keep this in mind.

Look at the history of AFTRA. Look at what payments and royalties they’ve managed to get.

Now keep in mind that throughout most of its history, AFTRA members did not hold any copyright rights.

That should give you an idea of how useless copyright is to artists’ rights. All of the benefits that artists and musicians got from AFTRA, they got without copyright.

That’s just one particular example. Others abound. The plain fact is that artists don’t gain power by exploiting their copyrights. They gain power through collective bargaining, and threatening to withhold their labor, not their copyrights.

Anonymous Coward says:

Re: Re: Re:18 Re:

Doubtful you know much of anything about AFTRA (now merged with SAG)

“Currently, downstream revenues from the reuse of feature films and television programs and lawful sales of sound recordings generate $1.5 billion annually in essential residuals and royalties for our members. In 2010,
o For AFTRA recording artists, 90% of income derived from sound recordings was directly linked to royalties from physical CD sales and paid digital downloads;
o DGA members derived 21% of their compensation from residual payments; 1 and
o SAG members who worked under the feature film and television contract derived 48% of their compensation from residuals. 2
 Residuals and royalties also play a significant role in funding the health and pension plans that benefit all of our members. These benefits provide a guaranteed safety net for our members, and are part of our industry?s long-established and collectively bargained agreements.
 In 2010, residuals derived from the sale of Features to Free TV and/or Features and Free TV to supplemental markets (Pay TV, DVD, viewing on airplanes, etc.) funded:
o 73% of DGA?s Basic Pension Plan;
o 60% of the MPI Health Plan (for IATSE Members); and
o 23% of SAG/AFTRA Pension and Health Plan.
1 Residual payments also fund most of the Basic Pension Plan.
2 Reported initial compensation earnings are subject to caps.”

All of that is derived from copyright, paid from the copyright owners to members.

Karl (profile) says:

Re: Re: Re:19 Re:

All of that is derived from copyright, paid from the copyright owners to members.

Yes, actors receive royalties. But they are not derived from the actors’ copyright on their performances, because they never had it. By law, acting is a “work for hire” profession.

They got those royalties, not through copyright law, but through collective bargaining. The same way that the UAW bargains for higher wages.

Yet, you seem to think this is “unfair.”

Anonymous Coward says:

Re: Re: Re:20 Re:

Yet, you seem to think this is “unfair.”

No this is perfectly fair. But those revenues are still derived from revenues generated by copyrighted content. A percentage of revenue from a copyrighted motion picture goes to actors and directors as residuals; and more flows to their benefit funds. That’s all I was saying.

Karl (profile) says:

Re: Re: Re:21 Re:

No this is perfectly fair.

This directly contradicts your earlier statement:

“I think that not giving authors any copyright rights is fundamentally unfair.”

The copyright in a film is not held by any of the “authors” (here, actors and other artists) who work on the films. It is held by a corporation, and the “authors” never held it at any point.

But those revenues are still derived from revenues generated by copyrighted content.

You’re assuming that the current copyright levels are necessary for those revenues, which is almost certainly false. But never mind.

The point was that the revenue going to actors is not derived from copyright. Nowhere in the copyright statutes are actors granted any kind of royalty rights.

If this situation is not “unfair” for them, why is it “unfair” for other artists?

Anonymous Coward says:

Re: Re: Re:22 Re:

No this is perfectly fair.

This directly contradicts your earlier statement:

“I think that not giving authors any copyright rights is fundamentally unfair.”

The copyright in a film is not held by any of the “authors” (here, actors and other artists) who work on the films. It is held by a corporation, and the “authors” never held it at any point.

Do you not understand that you can elect to assign your beneficial rights to another party? And particularly in low budget films, copyright is often held directly by one or more creators.

“But those revenues are still derived from revenues generated by copyrighted content.”

You’re assuming that the current copyright levels are necessary for those revenues, which is almost certainly false. But never mind.

Yes and it a right that someone can also elect to waive. Why don’t you go raise a few hundred thousand, make a movie and waive your copyright? Then let us know how it worked out for you.

The point was that the revenue going to actors is not derived from copyright. Nowhere in the copyright statutes are actors granted any kind of royalty rights.

They get residuals, in part because they waive their own IP rights. It is codified in their union agreements.

If this situation is not “unfair” for them, why is it “unfair” for other artists?

I didn’t say it was. Maybe more musicians should join AFM.

Karl (profile) says:

Re: Re: Re:23 Re:

Do you not understand that you can elect to assign your beneficial rights to another party?

Do you not understand that “assignment” is not the same as “work for hire?”

According to Title 17, sections 101 and 201:

A “work made for hire” is […] a work specially ordered or commissioned […] as a part of a motion picture or other audiovisual work […]

In the case of a work made for hire, the employer […] owns all of the rights comprised in the copyright.

Actors did not “assign” or “waive” their copyrights (through “union agreements” or otherwise). By law, they never held them in the first place.

Maybe more musicians should join AFM.

And if they do, then you would be OK with musicians not having copyright rights, like actors?

John Fenderson (profile) says:

Re: Re: Re:16 Re:

The thing I’m talking about is fundamental unfairness. I think that not giving authors any copyright rights is fundamentally unfair.

Now we’re getting somewhere.

The purpose of copyright law is not to create some kind of “fairness”. It’s purely to benefit the general public. Providing a benefit to creators is a means, not a goal.

Karl (profile) says:

Re: Re: Re:17 Re:

The purpose of copyright law is not to create some kind of “fairness”. It’s purely to benefit the general public.

I disagree (slightly). The purpose of copyright law is to create some kind of “fairness.”

It is to benefit the general public, by increasing public access to works of art.

If we are talking about copyright law, that is the only kind of “fairness” that we can talk about. The more copyright law benefits the general public, the more fair it is. The less it benefits the general public, the more unfair it is. There is literally no other moral consideration to make.

Mike Masnick (profile) says:

Re: Re: Re:13 Re:

Seriously? I invest $2 million and five years of my life to make a movie and I am not entitled to any exclusivity? You’d have the same right to monetize it that I do? You can’t actually believe that, can you?

Again, I don’t know if this works out in a manner that maximizes the benefit or not, but you could see an argument where, even without exclusivity, you still benefit massively. For example, people would still know who actually created it — and they often wish to support those creators (see recent experiments by Amanda Palmer, Louis CK and others to get fans to fund their work).

Furthermore, if others misappropriate it in a way that seems unfair, your fans will likely come to your defense, and it will harm the reputation of those who did that without first working out an arrangement with you (whether or not they’re legally required to do so). In act, should someone seek to “misappropriate” your work in this manner, it gives you a huge opportunity to point it out, and create more publicity for your own work (see: Coulton, Jonathan and Glee).

And that’s the key point in all of this. There are serious and compelling arguments for ways that you could benefit very handsomely even in the absence of exclusivity and enforcement mechanisms. What I’m most interested in are how well the different combinations work in the long run, both in creating incentives, but also in the actual creation of content.

Anonymous Coward says:

Re: Re: Re:14 Re:

Again, I don’t know if this works out in a manner that maximizes the benefit or not, but you could see an argument where, even without exclusivity, you still benefit massively. For example, people would still know who actually created it — and they often wish to support those creators (see recent experiments by Amanda Palmer, Louis CK and others to get fans to fund their work).

Furthermore, if others misappropriate it in a way that seems unfair, your fans will likely come to your defense, and it will harm the reputation of those who did that without first working out an arrangement with you (whether or not they’re legally required to do so). In act, should someone seek to “misappropriate” your work in this manner, it gives you a huge opportunity to point it out, and create more publicity for your own work (see: Coulton, Jonathan and Glee).

And that’s the key point in all of this. There are serious and compelling arguments for ways that you could benefit very handsomely even in the absence of exclusivity and enforcement mechanisms. What I’m most interested in are how well the different combinations work in the long run, both in creating incentives, but also in the actual creation of content.

Yes, some people can certainly make money without relying on exclusivity. How does that fact connect to the question of whether any author should ever have any exclusivity? You seem so smitten with the thought that the lone artist can use the power of the internet to whip up support. What about artists who just want exclusive rights to their works? What about the author who just wants to sell copies of his books without someone with deeper pockets doing it better than him and taking his sales without giving him any recompense? How do you account for that injustice? Or do you think that there is no such thing as unfair competition? I’ve yet to see you identify any competition, even from illegitimate sources, as unfair. Is it your belief that all competition is fair no matter what?

I’d like to know too why you never ever discuss any of the positives that come from copyright. You claim to be searching for the truth about what is behind “actual creation of content.” What about all of the content that is in fact created because of copyright? If you’re really searching for truth, why don’t you ever write anything positive about copyright? Can you even acknowledge that there is even one iota of positive from copyright? You claim to be unable to get off the fence on whether we should have any copyright, so that indicates that you must see some good or at least some potential for good. What good do you see? Please explain.

Anonymous Coward says:

Re: Re: Re:14 Re:

Sorry Mike, this just falls flat for the motion picture and television industry, which is why you offered up no direct examples from those areas.

While a few big name directors and stars may be able to mobilize a fan base to support them, they often do not hold significant rights or any rights at all. The big rights holder is typically the studio who assumed the risk of bankrolling, publicizing, promoting and distributing the production. Few corporate entities have a fan base to rush to its side over a piracy claim.

It’s even worse for mid and low budget films where the actual creators have a real financial stake in the rights. There are largely unknowns or have a meager fan base. By the time they could mobilize their fans, the film has already pirated and the value to distributers in secondary markets is devalued because it is freely available online. They aren’t going to pay a fair price on the theory that the fans of unknown directors and obscure actors are going to come running with open wallets rather than opt for “free”.

So while your theory may apply to a band with a dedicated following, it won’t with a new band and it’s wholly unworkable in the motion picture industry.

But the question I asked that is still unanswered is:

If I invest $2 million and five years of my life to make a movie, am I not entitled to any exclusivity? Should you have the same right to monetize it that I do?

That, in my judgment is THE fundamental question to resolve. I understand it may be a “yes, but…” or “no, but…” response. However, until that core issue is addressed I don’t think an honest discussion can be had.

I have made my position crystal clear:

I believe that a rights holder has an absolute right to economically exploit his creative output for a given period of time and enjoy the full protection of the law against others infringing upon that right.

I’ve been direct and spoken with complete candor in articulating my core belief, and would appreciate the same from you.

Anonymous Coward says:

Re: Re: Re:15 Re:

Great points. I hope Mike takes a moment to address them squarely. Your question reminds me of a friend of mine from high school who is now a camera operator for motion pictures. When films are shot in my state, he gets the call to go to work. That job is based on the fact that people invest money in that film with the expectation that they will be able to derive value from it exclusively because of the copyright rights. Say there were no copyright. How is someone like my friend who works a camera supposed to get the internet masses riled up and on his side? Why should he have to? Isn’t it silly to think that riling up the public on the internet will take care of the misappropriation and unjust enrichment problems? I just don’t understand the argument that because Louis CK can do something then it must follow that everyone else who relies on copyright could do it too. That makes no sense and seem exceedingly simplistic. How do you account for people who aren’t in a position like Louis CK, Mike? Please do respond. We’re explaining ourselves. It would be nice if you did as well, since that would be moving the discussion forward. Just saying “Look at Louis CK!” doesn’t tell us much if anything. I’m glad that what Louis CK did could work for others. But what about the folks for whom it wouldn’t work? How do you answer to that?

Anonymous Coward says:

Re: Re: Re:16 Re:

The film industry is different than the personality-centric music/live entertainment. A band has a following, tours the country, can interact with fans, charge admission to watch, sell t-shirts, etc. That does not have a corollary in the film business. You can’t assemble the hundreds of crew or even the director and cast to tour the country to tour for months, because they have to move on to the next gig. And even if you could, how many much more money’d be realized by selling out one movie theater at a time?

I doubt that Mike will directly answer my question as it has put him squarely in a box. At this point, I’d be happy to have any one of his acolytes address it.

So I will ask any and all comers:

IF I PUT FIVE YEARS OF MY LIFE AND $2 MILLION INTO MAKING A MOVIE, SHOULD I HAVE THE EXCLUSIVE RIGHT TO PROFIT FROM IT FOR A CERTAIN PERIOD OF TIME? SHOULD YOU HAVE THE SAME RIGHT TO MONETIZE IT DURING THAT PERIOD AS I DO?

It is really a very simple question that no one seems willing to answer. But it is at the very core of copyright debate. I hear a lot about the rights of the consumers of content, I would like a better understanding of how those consumers view my rights.

Mike Masnick (profile) says:

Re: Re: Re:15 Re:

Sorry Mike, this just falls flat for the motion picture and television industry, which is why you offered up no direct examples from those areas.

Possibly — though again, I’m not 100% sure that’s true. I agree that the argument may be harder to support when talking about video, but I’m not 100% convinced of that. If you want examples in the video/movie world they’re starting to pop up.

Nina Paley, who we’ve written about often and sometimes posts here, has done quite well despite eschewing all exclusivity over her film. She explicitly allows anyone who wants to profit from her work to do so. And it’s not like she was a huge famous star when she made Sita Sings the Blues — yet her fans support her, and they know that if they want her to make more movies they should continue to support her. And Sita still continues to make money for Nina despite having been out for years.

Kevin Smith has certainly talked about how he sees infringement as a form of free marketing, and he realizes that he can continue to sell certain interesting scarcities that can’t be pirated. For example, for his last film (and his next one), he’s “toured” with the film, charged high amounts for the singular experience of watching the film with him and then doing a (hilarious) Q&A afterwards. On a per ticket basis, he probably made more with that film than most films ever. No need for “enforcement,” just loyal fans.

As we’ve discussed, Kickstarter has helped fund about 8000 films over the past few years. While some of those filmmakers still choose to make use of enforcement, it does show that there are alternative business models that do not rely one enforcement.

Lloyd Kaufman, head of the famous Troma Films believes that you don’t need enforcement to build a successful business model. Just recently he put up a bunch of his back catalog on YouTube and he encourages people to share it, knowing that it continues to build an audience and fans.

Filmmaker Jonathan Reiss has also pointed out that focusing on enforcement often makes little sense for filmmakers today — as the end result is often antagonizing fans, when there’s much more benefit in connecting with them, building a relationship and giving those fans reasons to want to support you.

And, of course, there are a growing number of video productions that are internet only. A whole bunch of “networks” of shows have popped up on YouTube where they tend to ENCOURAGE as much sharing as possible, and they don’t worry about exclusivity, because they don’t need to. It’s just so easy to watch the stream / embed — in which case they can then monetize via YouTube’s system, that the “problem” of infringement isn’t a problem at all. They’ve figured out that delivering what fans want to those fans in a format that makes sense, and not worrying about enforcement, they can often build up quite a lot of support.

So, no, I don’t think that there’s evidence that films necessarily need exclusivity and an enforcement mechanism. Whether that’s true across the board — I don’t know. Some have made the argument that there are differences depending on the size of the budget — and perhaps that’s true. I think it would be interesting to explore that.

While a few big name directors and stars may be able to mobilize a fan base to support them, they often do not hold significant rights or any rights at all. The big rights holder is typically the studio who assumed the risk of bankrolling, publicizing, promoting and distributing the production. Few corporate entities have a fan base to rush to its side over a piracy claim.

I’ve given some examples above, of both known and unknown filmmakers, so, not sure that the above is necessarily true. Also, as you know, a growing number of films are NOT financed by the studios, but rather by other investors, and the studios come in later (Sundance, Cannes, other festivals) and buy up the distribution rights. Yes, they still directly finance some films, but it’s a smaller and smaller percentage of films.

And, for those big studio films, take a look at the box office results lately. The biggest studio films are often the most pirated, but they do exceedingly well at the box office, because people love to see those films on the big screen in the theater environment. Yes, some people infringe too, but it seems that an awful lot are willing to pay.

It’s even worse for mid and low budget films where the actual creators have a real financial stake in the rights. There are largely unknowns or have a meager fan base. By the time they could mobilize their fans, the film has already pirated and the value to distributers in secondary markets is devalued because it is freely available online. They aren’t going to pay a fair price on the theory that the fans of unknown directors and obscure actors are going to come running with open wallets rather than opt for “free”.

Again, that may be true in some cases, but we’ve so many cases that go in the other direction, I’m not convinced this argument is accurate. Lots of films under the old system were unsuccessful and failed to get good distribution deals just because the films weren’t good enough to get distribution deals. We should be careful not to conflate films that never were going to score lucrative distribution deals anyway with films you believe were hurt by online availability.

And, as we’ve seen, for filmmakers who seem to really seek out an audience, embrace them, and encourage them to support them, it’s quite possible to build up a loyal following who are willing to pay.

Furthermore, services like Netflix are doing quite well in the market, getting people to pay subscription fees for access — and thus if you can get distribution on Netflix or other similar services, it’s often actually MORE convenient for fans to watch the movies that way on a legit offering.

So while your theory may apply to a band with a dedicated following, it won’t with a new band and it’s wholly unworkable in the motion picture industry.

“Wholly unworkable” is clearly false, since we’re seeing it work for some. The real question is how many. Is it limited to just a few outlier cases, or can it be applied more broadly? I think it can be applied more broadly, but it’s still early.

If I invest $2 million and five years of my life to make a movie, am I not entitled to any exclusivity? Should you have the same right to monetize it that I do?

I don’t know. “Should” is a moral question, unrelated to the question I’m focused on, which is what is optimal to society. I think “should” is a distraction. The real question is whether or not you need such exclusivity to best compensate you and to best get your movie out into the world. You, clearly, believe that to be the case. And you may be right.

I think there is growing evidence that exclusivity is not necessarily needed, but with only a small number of artists experimenting in that direction, the data is admittedly too small a sample size to tell at this point.

That, in my judgment is THE fundamental question to resolve. I understand it may be a “yes, but…” or “no, but…” response. However, until that core issue is addressed I don’t think an honest discussion can be had.

Again, you’re asking a purely moral question. And since it’s a moral question, I can’t see how it’s “the” fundamental question here. A moral question is one that everyone answers individually, but gets us nowhere near any objective truth or useful data.

I believe that a rights holder has an absolute right to economically exploit his creative output for a given period of time and enjoy the full protection of the law against others infringing upon that right.

By law you are correct that you are granted such a right. Whether or not it is “absolute” may depend on your definition of such things. But, again, I’m not really sure how that moves the conversation forward in any way. We know what you believe, but does the data actually support that? I don’t know.

I’ve been direct and spoken with complete candor in articulating my core belief, and would appreciate the same from you.

Sure. I hope I’ve done the same with you and explained my position as well.

If you’d like slightly more elaboration, I think it’s clear that new services, tools and business models are showing up, and they’re enabling new ways to create, to promote, to connect, to distribute and to monetize all sorts of content, including film. Many of these new things do not rely on or require exclusivity or protection, and so far, I think it’s likely that such services will find success and support in the market.

However, a few caveats on that: we’re clearly in a time of transition, and those can be messy. One thing is that these tools are actually leading to greater competition meaning that it may be harder for some to succeed, just because they have more competition, both in being discovered, but also in competing for revenue. That’s a big challenge. But I don’t see how exclusivity deals with that challenge at all. In fact, it goes back to the famed Tim O’Reilly line that, for most in that situation, obscurity is a much bigger issue than piracy.

In addition, being in a time of transition is extra difficult, because the clear roadmap disappears. Lots of creators try lots of different things, and there’s no “this is how you make a movie and make money” plan out there any more. So that’s a challenge (and makes it challenging to get good data). But we’re seeing some pockets of success (Kickstarter is a prime example, TopSpin has had some successes, BitTorrent, HumbleBundle, etc…) and as that happens people will gravitate more and more to these things, and hopefully a few basic roadmaps start to make themselves clear. I believe that the end result will still be many more options for content creators, and the ability to forge their own path, but a few “standard” paths that are more easy to emulate.

Whether or not those will require a form of exclusivity — that’s entirely possible. I’d like to see how they develop before I’m convinced one way or the other.

Anonymous Coward says:

Re: Re: Re:16 Re:

Thank you for the response. I do believe that the “moral question” you describe needs to be answered in order to move forward. It is the essence of the debate. So while I respect your thoughtful comments, I am still hoping someone else will add to the discussion taking the opposite view of my own so I can better understand the argument on that side.

I’d also add that I agree that there are successful artists who have done well with out utilizing copyright protections. I still do not believe that makes a compelling case to to remove those protections for everyone.

The notion that someone has poured years of their life and millions of dollars into a project, yet has no greater rights to financially exploit it than any member of the public still strikes me as absurd and fundamentally unfair. I’d love to hear the argument against my position.

PaulT (profile) says:

Re: Re: Re:17 Re:

“I still do not believe that makes a compelling case to to remove those protections for everyone.”

Is anybody suggesting that here? I’ve seen a lot of arguments as to how the current system is broken, needs to be reformed or even scrapped and rebuilt. I’ve seen arguments that it’s totally overreaching and needs to be limited to less time and enforced with the rights of both the public and artist respected alike rather than being done for a small group of corporations’ needs at everyone else’s expense. I’ve seen arguments that the problems associated with copyright infringement can be dealt with by business methods rather than legal attacks and oppressive laws. I don’t believe I’ve seen anyone apart from the odd fly-by troll suggesting that all copyright protection should be completely removed.

If I missed that, would you mind pointing to that article?

Anonymous Coward says:

Re: Re: Re:18 Re:

“I still do not believe that makes a compelling case to to remove those protections for everyone.”

Is anybody suggesting that here?

Not Mike, but any number of regulars have stated that in plain terms.

I’ve seen a lot of arguments as to how the current system is broken, needs to be reformed or even scrapped and rebuilt. I’ve seen arguments that it’s totally overreaching and needs to be limited to less time and enforced with the rights of both the public and artist respected alike rather than being done for a small group of corporations’ needs at everyone else’s expense.

Yes, I’ve seen the criticism too. What I haven’t seen is any reasonable proposal to balance the rights of the public and rights holders, including meaningful enforcement.

I’ve seen arguments that the problems associated with copyright infringement can be dealt with by business methods rather than legal attacks and oppressive laws.

What business method has been effective?

I don’t believe I’ve seen anyone apart from the odd fly-by troll suggesting that all copyright protection should be completely removed.

Purely from recollection, Joshfromcharlotte is the last one I recall who believes the system should simply be scrapped. He’s not alone.

If I missed that, would you mind pointing to that article?

I don’t know if it’s in the article. The discussion evolved. It’s easy to criticize, which is entirely what commenters on this site do. Let’s hear some solutions for a change. Not that I particularly that most are interested in solutions, but rather measures calculated to assure the flow of free content.

PaulT (profile) says:

Re: Re: Re:19 Re:

“Not Mike, but any number of regulars have stated that in plain terms.”

OK, so you agree Mike doesn’t hold that opinion, although that was who you were addressing when you were making those comments for some reason. Any number of regulars (myself included) have said something completely different, mind you.

“What I haven’t seen is any reasonable proposal to balance the rights of the public and rights holders, including meaningful enforcement.”

Define “meaningful enforcement”. Also, read the threads, these things are often discussed when trolls aren’t derailing things.

“What business method has been effective?”

Many of them, although some are either too new to get a clear picture of their overall effectiveness or are hampered/strangled at birth by the legacy industry’s attempts to maintain their foothold. I would maintain, however, that removal of DRM, regional blocks, choice of formats, reasonable pricing, etc., are far more effective at reducing piracy and encouraging sales than any “enforcement”, even before you start looking at the more innovative business models.

“Purely from recollection, Joshfromcharlotte is the last one I recall who believes the system should simply be scrapped. He’s not alone.”

Well, without knowing which thread you’re referring to I’ll have to take you at your word. But, all you’re really saying is that on a global forum with many members expressing different opinions – some of them the polar opposite of another commenter – some people have the opinion you criticise.

“It’s easy to criticize, which is entirely what commenters on this site do”

If you believe that, you haven’t been reading it properly.

“Not that I particularly that most are interested in solutions, but rather measures calculated to assure the flow of free content.”

…and a blatant insulting lie to finish up. Nice.

Anonymous Coward says:

Re: Re: Re:20 Re:

You confuse me with another AC. I didn’t attribute that to Mike. He choses his words very carefully. And yes, I realize that not everyone is a copyright anarchist.

Meaningful enforcement would mean measures that protect rights holders property from being unlawfully exploited during the exclusive period they’re granted.

Many of them, although some are either too new to get a clear picture of their overall effectiveness or are hampered/strangled at birth by the legacy industry’s attempts to maintain their foothold. I would maintain, however, that removal of DRM, regional blocks, choice of formats, reasonable pricing, etc., are far more effective at reducing piracy and encouraging sales than any “enforcement”, even before you start looking at the more innovative business models.

You first spoke of business methods to stop infringement. Then you simply allude to many of them without an example of a single one. Then you cite examples that encourage proliferation, but do nothing to stop or inhibit the unlawful infringement itself. If you don’t believe in enforcement, that’s fine- but you should simply say so.

I do believe that 99% of the commentary are criticisms with constructive input on creating a fair, balanced system. I can’t even get you to give me a straight answer as to what would be an acceptable way to enforce the legal rights of rights holders when I asked directly. You provide the example yourself.

“Not that I particularly that most are interested in solutions, but rather measures calculated to assure the flow of free content.”

…and a blatant insulting lie to finish up. Nice.

Not meant to insult, just an inescapable conclusion from a combination of endless criticism of existing law and a dearth of alternatives posed balancing the constitutional rights of creators with those of the public. Add to that the numerous assertions by regulars on this site that they pirate because it’s “too expensive” or hiding behind statements like “information [entertainment] wants to be free” makes it fairly plain.

PaulT (profile) says:

Re: Re: Re:21 Re:

“You confuse me with another AC. I didn’t attribute that to Mike.”

You have the same snowflake as the AC who replied to Mike in the comment I replied to above. If this is getting confusing, you have a way to type a name so that you don’t get misidentified.

“Meaningful enforcement would mean measures that protect rights holders property from being unlawfully exploited during the exclusive period they’re granted. “

If you mean ensure that nothing is ever misused, that’s impossible – just as it was pre-Internet. If you mean punishment for those who do so, that’s where the problem lies. Most enforcement so far is based on such flimsy evidence that innocent people are bound to be attacked, or so over-reaching that perfectly legitimate, legally and morally correct uses and business models are prevented. Half the “enforcement” we’ve seen so far amounts to little more than a protection racket.

There needs to be a balance, and I consider the business model approaches far more workable and effective than those suggested on the enforcement side. In fact, much of enforcement we’ve seen so far has actually encouraged infringement, not stopped it.

“I can’t even get you to give me a straight answer as to what would be an acceptable way to enforce the legal rights of rights holders when I asked directly.”

Because you can’t define the question properly. I’ve answered my side – if you want more specifics, you’ll have to be more specific with what you’re asking. My general points cover most general situations.

“If you don’t believe in enforcement, that’s fine- but you should simply say so”

I don’t believe that and I believe exactly what I say. Sorry if the realities I’m addressing can’t be answered with a black and white blanket answer as each case will be different, but do not use that as an excuse to put words in my mouth or pretend I mean anything other than what I say. I totally believe in enforcement – but not at the expense of free speech, due process, market freedom or as an alternative to adapting to modern market realities.

“Not meant to insult, just an inescapable conclusion from a combination of endless criticism of existing law and a dearth of alternatives posed balancing the constitutional rights of creators with those of the public.”

Bullshit. Alternative business models are discussed here all the time, as are alternative suggestion on how to work with consumers and other industries rather trying to paint them as an enemy. However, you may find the overriding opinion that the rights of an artist do not trump the rights of consumers or society at large, and I agree with that. You don’t get to kill the rights and freedoms of others just because you want more money for whatever you decided to peddle. It’s also a matter of degree. I have no problem with repeat infringers or people making large amounts of money from piracy being targeted. What I baulk at is the lack of evidence, lack of due process, wildly inconsistent and inappropriate punishment, attacks on network protocols, crippling of new industries and other collateral damage that comes with the tactics used so far – tactics which are clearly ineffective.

“Add to that the numerous assertions by regulars on this site that they pirate because it’s “too expensive” or hiding behind statements like “information [entertainment] wants to be free” makes it fairly plain.”

Why do you fixate on those people rather than the many others who don’t pirate or (like myself) point out the hundreds of obstacles that many legitimate consumers have to climb over to get legal content – if it’s even offered to them at all? Pretending we don’t exist doesn’t help the honesty of your own arguments, and you are insulting us if you do.

Josh in CharlotteNC (profile) says:

Re: Re: Re:19 Re:

My position is that it is unethical/immoral to restrict the availability/distribution/use of knowledge/ideas/culture when those things can be copied/distributed/practically used at no/neglible cost.

I see nothing wrong with a company making use of knowledge/ideas/culture and charging for it, as long as they are not in any way preventing others from doing the same.

To me, the internet represents an infinite worldwide public library where everyone should have full and complete access to enrich themselves with every scrap of knowledge and culture the human race has ever produced.

You when ask a moral question, that is my response.

I don’t know for absolute certainty if my position is ultimately workable, but I favor those attempts that move us closer and vehemently object to those which move us away from it.

Anonymous Coward says:

Re: Re: Re:17 Re:

Thank you for the response. I do believe that the “moral question” you describe needs to be answered in order to move forward. It is the essence of the debate. So while I respect your thoughtful comments, I am still hoping someone else will add to the discussion taking the opposite view of my own so I can better understand the argument on that side.

Mike doesn’t have a good response to the moral issue, that’s why he pretends like it’s an issue that requires no response. It’s only the fundamental issue at the heart of copyright law. Yet Mike thinks we can just ignore it. Mike = total fake + total coward. He can’t even address the issue in an intelligent way, so he runs away and hides. Again. As always.

Anonymous Coward says:

Re: Re: Re:18 Re:

I tend to agree. The essence of copyright is the time-limited exclusivity of a rights holder to economically exploit creative output.

I don’t know how one can have a discussion without resolving whether he supports that concept or not. Perhaps you could have a discussion, but there will never be an agreement or progress made toward a resolution.

The major criticism of the anti-copyright side is a total failure to pose viable alternatives; particularly surrounding effective enforcement. I’d venture many of the things on the anti’s wish list like copyright terms would be far more negotiable if rights holder copyright enforcement was also embraced.

Anonymous Coward says:

Re: Re: Re:19 Re:

“The essence of copyright is the time-limited exclusivity of a rights holder to economically exploit creative output.”

This is factually inaccurate and is completely your opinion on the essence of copyright.

The ACTUAL essence of copyright is the time-limited exclusivity of a rights holder to the distribution of their work, in exchange for which after the allotted time has expired the work belongs to the public. Nothing more, nothing less. But it DOES NOT mention a thing about “a rights holder to economically exploit creative output.”

“I don’t know how one can have a discussion without resolving whether he supports that concept or not.”

Well, again, that’s because your misunderstanding something and putting your spin on it. As there is no mention of the exclusive right for a rights holder to economically exploit their creative output, there’s no need to have a discussion with the intent of resolving whether one supports that concept or not. It’s largely irrelevant.

“The major criticism of the anti-copyright side is a total failure to pose viable alternatives; particularly surrounding effective enforcement.”

That is purely your opinion. The anti-copyright side has largely posed viable alternatives, particularly surrounding effective enforcement. Examples have been lowering the maximum amount of fines for non-commercial infringement (or basically, the “every day” infringement of your average pirate), also a great way to beat piracy (as has been stated repeatedly on this site) is not so much through enforcement but through the releasing of the material in an easy to acquire manner with no restrictions and reasonably priced (which DOES NOT mean “free”). Just those two alone would be hugely successful at lowering piracy and would do much towards reestablishing goodwill between the rights holders and the public.

“I’d venture many of the things on the anti’s wish list like copyright terms would be far more negotiable if rights holder copyright enforcement was also embraced.”

So you’re saying, if the anti-copyright side caves in on essentially anything/everything the rights holders want regarding enforcement (6 strikes, active monitoring of internet connections, massively disproportional fines for infringement, the shutting down of legitimate services like file storage lockers which are legal, etc) then MAYBE we could get copyright terms to be reasonable again?

That’s a load of bollocks. At the end of the day the rights holders would never agree to such a thing. Nor would the anti-copyright side. (And that’s a misnomer by the way. It’s not anti-copyright, so much as copyright reform side. People aren’t saying let’s do away with copyright entirely, at least not many. They’re saying let’s get things back to being realistic and in line with what was originally conceived for copyright. That’s a big difference and one you’re either intentionally ignoring or conflating with something else ignorantly. Not sure which.)

Anonymous Coward says:

Re: Re: Re:20 Re:

“The essence of copyright is the time-limited exclusivity of a rights holder to economically exploit creative output.”

This is factually inaccurate and is completely your opinion on the essence of copyright.

The ACTUAL essence of copyright is the time-limited exclusivity of a rights holder to the distribution of their work, in exchange for which after the allotted time has expired the work belongs to the public. Nothing more, nothing less. But it DOES NOT mention a thing about “a rights holder to economically exploit creative output.

What does this mean: To promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The exclusive right means that you alone have the right to do with it whatever you please. Historically, that means exploiting economically. Do you think a lot of people make movies to keep them on the shelf?

“I don’t know how one can have a discussion without resolving whether he supports that concept or not.”

Well, again, that’s because your misunderstanding something and putting your spin on it. As there is no mention of the exclusive right for a rights holder to economically exploit their creative output, there’s no need to have a discussion with the intent of resolving whether one supports that concept or not. It’s largely irrelevant.

You are utterly demented. You acknowledge that the rights holder has exclusive rights to his creation, yet somehow suggest that the right to financially exploit that creation isn’t part of the overall right? Are you kidding?

“The major criticism of the anti-copyright side is a total failure to pose viable alternatives; particularly surrounding effective enforcement.”

That is purely your opinion.

No shit. And I’m hardly alone in it.

The anti-copyright side has largely posed viable alternatives, particularly surrounding effective enforcement. Examples have been lowering the maximum amount of fines for non-commercial infringement (or basically, the “every day” infringement of your average pirate), also a great way to beat piracy (as has been stated repeatedly on this site)

Wait, you are saying that lowering penalties will create greater compliance with the law? Obviously you must have a ready citation for how that piece of absurd reasoning has worked somewhere.

..is not so much through enforcement but through the releasing of the material in an easy to acquire manner with no restrictions and reasonably priced (which DOES NOT mean “free”). Just those two alone would be hugely successful at lowering piracy and would do much towards reestablishing goodwill between the rights holders and the public.

I agree on easier access, but still believe in the laws of supply and demand. Why should I price my highly sought after movie the same as some piece of shit horror film? Because you’ll freeload it if I don’t? Fuck that. If you think it costs too much, watch something else. Or read a book.

“I’d venture many of the things on the anti’s wish list like copyright terms would be far more negotiable if rights holder copyright enforcement was also embraced.”

So you’re saying, if the anti-copyright side caves in on essentially anything/everything the rights holders want regarding enforcement (6 strikes, active monitoring of internet connections, massively disproportional fines for infringement, the shutting down of legitimate services like file storage lockers which are legal, etc) then MAYBE we could get copyright terms to be reasonable again?

That’s a load of bollocks. At the end of the day the rights holders would never agree to such a thing. Nor would the anti-copyright side. (And that’s a misnomer by the way. It’s not anti-copyright, so much as copyright reform side. People aren’t saying let’s do away with copyright entirely, at least not many. They’re saying let’s get things back to being realistic and in line with what was originally conceived for copyright. That’s a big difference and one you’re either intentionally ignoring or conflating with something else ignorantly. Not sure which.)

Whine all you like about copyright length. Then go and look at what is being unlawfully acquired. The overwhelming amount of content is the latest and greatest. Not 5, 10, 15 or 20 years old. If there was a way to trade copyright duration of ten years for no infringement, the industry would knock the door down to make that deal.

Anonymous Coward says:

Re: Re: Re:21 Re:

“What does this mean: To promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The exclusive right means that you alone have the right to do with it whatever you please. Historically, that means exploiting economically. Do you think a lot of people make movies to keep them on the shelf? “

Yes, but you were saying exclusive right to economically exploit. THAT IS NOT STATED IN THE COPYRIGHT CLAUSE ENACTED BY CONGRESS. It just states exclusive rights, the one and only of which is distribution (or right to copy). It in no way states exclusive right to economically exploit. That is something is done through the distribution of the right to create copies, but it isn’t the right referred to by the copyright clause.

That it happens and can be done isn’t irrelevant, but it’s not the way you’re making it out to be. Which is that it’s the exclusive right referred to.

“You are utterly demented. You acknowledge that the rights holder has exclusive rights to his creation, yet somehow suggest that the right to financially exploit that creation isn’t part of the overall right? Are you kidding?”

Are you? I pointed out, twice now, what the one and only exclusive right is. The other is a byproduct of that exclusive right. Without the former, the latter doesn’t happen at all. So stop trying to portray the clause as giving a right that isn’t actualy being given.

“No shit. And I’m hardly alone in it.”

And we all know that multiple people sharing an OPINION therefore makes that opinion factually true. /s Hint: It doesn’t.

“Wait, you are saying that lowering penalties will create greater compliance with the law? Obviously you must have a ready citation for how that piece of absurd reasoning has worked somewhere.”

No, I didn’t say that. You’re taking what I said out of context. You specifically previously stated that no viable alternatives were being given concerning enforcement. I listed two. One is reducing the fines associated with and making the distinction between commercial infringement and non-commercial infringement. I DID NOT SAY IT WOULD LEAD TO MORE COMPLIANCE WITH THE LAW. I am stating, rather clearly, that a distinction needs to be made.

You go on and on about morals and what’s fair, yet you want to justify that a person downloading a song is deserving of a fine up to $150,000? How is that moral or fair? (Ignoring that they could distribute it or aid in it’s distribution. For the sake of argument, just pretend that only they were able to copy this song and it only gets copied once to their computer.) And keep in mind that is for a digital copy. Something that is infinitely reproduceable at almost no cost. YET, if that person were to physically steal the physical equivalent (a CD) the fine would be less than $500. Keeping in mind that there is now an actual physical and verifiable loss for wherever they stole the CD from. Proportion. You want to talk enforcement and greater amounts of it but you don’t want to discuss the morality or fairness of how ridiculous disproportional said enforcement is or the penalties associated with it. Hypocrisy, thy name is you.

“I agree on easier access, but still believe in the laws of supply and demand. Why should I price my highly sought after movie the same as some piece of shit horror film? Because you’ll freeload it if I don’t? Fuck that. If you think it costs too much, watch something else. Or read a book.”

Did you see me say I’ll freeload something? Don’t put words in my mouth. I merely stated a reality. If people have legal and easy access to a product they’ll purchase it. You want to completely lock out a market, for whatever artificial reason, then complain when they acquire a product through unofficial channels. If you’re not offering a product to someone, you can’t complain about losses that wouldn’t have existed in the first place. Ditto overpricing. If you overprice something, and your “value” of your own product will never be in line with everyone else’s perceived value of your product, no one will buy it. This is simple economic reality. History is littered with examples of what should’ve been successful products that flopped completely due to this kind of thinking. “My product is awesome! Pay me a bajillion dollars for it!” Uh, no.

Also, you make the mistake of assuming your product is highly sought after. All this time we’ve been dealing with your hypothetical “2 million dollar movie, 5 years of work”. You can’t assume it’ll be highly sought after. In point of fact, some of the biggest grossing movies of the past decade have been “piece of shit horror film” type movies. Created on shoe string budgets and shot in as little as half a year (if that). But I digress, if you overprice your product you are guaranteed to lose sales. Either because people will do without or they’ll go the piracy route. Logic, therefore, dictates that you should price your product reasonably to MAXIMIZE sales. A reasonably priced product will sell more than a higher priced one. That’s a fact. I’d rather have 1,000 sales of my $2 book than have 10 sales of my $100 book.

As for me personally, I’d much rather read a book than watch a movie. That’s just me though. Fuck you and fuck your “highly sought after” fictional/hypothetical movie.

“Whine all you like about copyright length. Then go and look at what is being unlawfully acquired. The overwhelming amount of content is the latest and greatest. Not 5, 10, 15 or 20 years old. If there was a way to trade copyright duration of ten years for no infringement, the industry would knock the door down to make that deal.”

No, the industry would NOT knock the door down to make that deal. They’ve fought routinely and since time immortal to NOT give people easier access to their goods. They’ve fought and made ridiculous demands of those who would help them give people easier access to their goods (ala Apple and iTunes, Amazon and Amazon Instan Video, Netflix, Google Play, etc). They seem to not want to give people legitimate ways to purchase their products.

But see what you did there? You are pretty much demanding answers to YOUR questions and YOUR perceived wrongs and harping on how only your side wants to work things out and come to an agreement and blah blah blah. Yet when I try and talk to you and give you answers to some of the questions you’ve raised your response has been “fuck you” and to call me a freeloader and to say things like that. You aren’t interested in working with anyone. You want solutions to your PERCEIVED (and not necessarily real) problems, you want people to guarantee your revenue stream, you want people to respect your exclusive right (to copy, and nothing more), but you don’t want to discuss anything or give anything in return. And it’s exactly that mentality/attitude on the part of yourself (and rights holders in general) that makes all this a futile effort, insofar as trying to work things out goes. You want others to give but you offer nothing in return. And the ability to watch your “high sought after” movie isn’t as big a deal as you might (mistakenly and egotistically) believe it to be. Until you’re willing to give on some issues there will be an impasse. And from what I’ve read of your comments so far, that’s going to remain that way indefinitely. Seeing as how you don’t want to do much in the way of solving the issues seen from the customers/pirates side (much less the copyright reformers) of the debate.

Now, if you’ll excuse me. I’ve got a computer to repair and a book to read while various things run as I do so. A reasonably priced, digital copy of a hugely successful author’s book at that. You know, because the publisher/author gave me what I wanted. Access to the latest book at a not unreasonable cost (and it wasn’t $2) in a manner of my choosing as far as digital format goes. Did I mention it’s DRM free? Hey, maybe you could stop acting like a dick and take a page from these guys’ book (pun intended). Catch more flies with honey and all that jazz. (Because fyi, you’re more focused on punishing than providing a better customer service experience. As any person in retail sales will tell you, you’ll lose out on a lot of business that way. And I say that as someone whose worked in retail and had to deal with you know… actual theft. As opposed to IMAGINED theft, because there’s no proof whatsoever that piracy is as rampant as some like you claim it is. And what proof is out there shows when you make your product available in a convenient and easy way, reasonably priced, piracy will drop. But heaven forbid you consider that solution. ENFORCEMENT ENFORCEMENT ENFORCEMENT! Amirite?)

nasch says:

Re: Re: Re:17 Re:

I do believe that the “moral question” you describe needs to be answered in order to move forward. It is the essence of the debate.

A question that has nothing to do with the constitutional purpose of copyright is the essence of the debate? Maybe in France where the law recognizes moral rights, but not in the US.

Anonymous Coward says:

Re: Re: Re:18 Re:

It has everything to do with the constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

It is not simply a moral question, it is a matter of constitutional fact. Exclusive, time-limited right is what we have been discussing.

Anonymous Coward says:

Re: Re: Re:20 Re:

“To promote the Progress of Science and useful Arts…”

Not “to promote fairness and morality”.

Oops, you forgot the inconvenient part:

“…by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

So let’s ignore the “fairness and morality” part if you like. Let’s talk about the exclusive rights that are guaranteed yet are under attack by pirates and freeloaders around the world. That’s the problem and you have just personified it- you only want to talk about the half that affects you and disregards the rights of others.

Mike Masnick (profile) says:

Re: Re: Re:21 Re:

So let’s ignore the “fairness and morality” part if you like. Let’s talk about the exclusive rights that are guaranteed yet are under attack by pirates and freeloaders around the world. That’s the problem and you have just personified it- you only want to talk about the half that affects you and disregards the rights of others.

Just a point of clarification. The “exclusive rights” are not guaranteed. Congress has the ability to assign those exclusive rights, but only if they promote the progress of science and the useful arts.

So it does seem like a viable point to discuss if, at their current levels, they do that. Or… if they would do so moreso at other levels, or even no levels at all. Right?

Anonymous Coward says:

Re: Re: Re:24 Re:

They can legislate the duration, the inherent right is still guaranteed. And before you suggest that Congress could limit the right to one day, that will never happen as the court and anyone with half a brain realizes that the purpose of the exclusionary period is to allow creators to economically benefit from the act of creation.

Gwiz (profile) says:

Re: Re: Re:25 Re:

They can legislate the duration, the inherent right is still guaranteed.

No it’s not. The Constitution does not define the word “Right” in any sort of context. Congress decided which rights to include in copyright. And could decide to revoke any of the currently defined rights at any given time.

Congress could also (theoretically) decide that your “exclusive rights” ended at the moment you showed your work to another person (that’s the point where your natural exclusive right ends anyways) and still be technically within Constitutional limits, in my opinion.

Anonymous Coward says:

Re: Re: Re:27 Re:

“Pathetically weak with no basis in fact or law.”

That summarizes your comments to this point, but Josh and others are right. That “copyright law” you keep referring to (when discussing rights holders exclusive rights) is NOT as you’re making it out to be.

You’ve quoted it several times and seem to overlook one key point, all it is at the end of the day is a RIGHT for Congress to allow for copyright as they see fit, given that it complies with one important thing, “to promote the progress of the sciences and the arts”. In exchange for said promotion the AUTHORS and INVENTORS (note that it doesn’t say “rights holders”, it’s a difference that I believe is lost on you) get exclusive limited time rights. Which are set and determined by Congress.

You keep going on about the right to economically exploit, which isn’t a right granted by Congress to those allowed the privilege of copyright. The only exclusive right is that of distribution (right to copy). If they can economically exploit said right, more power to them.

But at the end of the day, all the Copyright Clause does is give one specific right to one specific group of people, and that’s Congress. To make a law regarding the promotion of the sciences and the arts. The method by which this is done is copyright, and the method by which sciences and arts are promoted is by giving authors and inventors exclusive limited rights, and said right is the right of distribution.

It’s amusing how well you started off entering this thread and where you’ve ended up. You came off as reasonable and wanting to genuinely discuss and debate things. But here we are where you’re insulting others, dismissing anything that doesn’t comply with your (mis)conceived notions and what have you. And you wonder why the anti-copyright/copyright reform side won’t come to the table to meet with you and yours. Your demands are unreasonable and your proof/evidence is severely lacking, which is the same as your understanding of the copyright clause. Congress could do away with copyright entirely and there’d be no Constitutional problem, as they’d be well within their right as allotted them by the copyright clause.

Anonymous Coward says:

Re: Re: Re:28 Re:

It’s amusing how well you started off entering this thread and where you’ve ended up. You came off as reasonable and wanting to genuinely discuss and debate things. But here we are where you’re insulting others, dismissing anything that doesn’t comply with your (mis)conceived notions and what have you. And you wonder why the anti-copyright/copyright reform side won’t come to the table to meet with you and yours. Your demands are unreasonable and your proof/evidence is severely lacking, which is the same as your understanding of the copyright clause. Congress could do away with copyright entirely and there’d be no Constitutional problem, as they’d be well within their right as allotted them by the copyright clause.

We disagree. And I am not begging anyone to come to the table. SOPA has been implemented by and large, without any pesky requirement to go through the courts. Six strikes is here. More is coming.

The people I know in the industry see themselves as making gains. How about you? Are you ok with the status quo? I hope so, because I see no genuine interest from your side related to any sort of compromise.

Anonymous Coward says:

Re: Re: Re:29 Re:

“without any pesky requirement to go through the courts”

The fact that you see something as going through the courts (aka due process) as a pesky requirement says quite a lot about you and your beliefs.

“The people I know in the industry see themselves as making gains. How about you? Are you ok with the status quo? I hope so, because I see no genuine interest from your side related to any sort of compromise.”

I guess trying to come up with ways to get your products out there or create them more efficiently and at lesser cost isn’t anything coming from my side in the way of compromise. Ditto pointing out all the ways to reduce piracy and increase sales. (Put your shit out there in as many legal ways as possible and at decent prices.) And so on and so forth.

Again, it comes back to you being unrealistic and wanting more than what you’re willing to give.

Status quo? I think we’ve made plenty of gains. We removed DRM from music, a huge hindrance. We’ve shown the potential of streaming products, and it’s massive economic success as a business model. Etc.

But as for the rest? Fuck it. At the end of the day if I wanted to pirate your 2 mil/5 year work of a movie I could. And there’s literally nothing you could do to stop me. And that’s what counts. I can take from you if you aren’t willing to be reasonable. And your bit about “pesky requirement” says all I need to know. That you view due process and the courts as a pesky requirement says that those who do pirate are more than justified in doing so for whatever reason they have. You want the rule of law enforced when you see fit, and ignored when you view it as an cumbersome. You want to have your cake and eat it to. Your worse than the pirates/freeloaders. Of which I’m not one. Too bad I don’t know what you do, or what if any product you’ve ever put out (if any). I’d pirate it on principle alone. (Your holier than though, fuck the courts attitude certainly didn’t raise my level of respect for you, not that it was high to begin with.)

nasch says:

Re: Re: Re:25 Re:

They can legislate the duration, the inherent right is still guaranteed.

No, it isn’t. The Constitution says “The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

That’s it. No guarantee. Not even a mandate to Congress to do anything. Just a grant of the power to do so. If Congress decided copyright is stupid and withdrew from the Berne Convention and repealed all copyright laws, that would be totally constitutional.

Contrast that with the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Notice the difference. The 1st amendment forbids Congress from doing anything to abridge rights. The copyright clause allows Congress to pass laws that would secure rights that otherwise would not exist.

Mike Masnick (profile) says:

Re: Re: Re:23 Re:

You can’t say that exclusive rights are not guaranteed. They are. It’s in plain English. The duration of the exclusive rights may be an issue, but certainly not the very existence of them.

That statement is factually incorrect. I see you repeat it multiple times below, but that does not make it any more correct. The Constitution is enumerating the powers of Congress in that section, not the rights of the people. It says that Congress has the power to grant such exclusivity, not that it must and not that those rights are guaranteed. It simply says that IF it promotes the progress of science and the useful arts than Congress MAY grant such an exclusive privilege.

Nowhere does it say or imply that such a monopoly is guaranteed.

Anonymous Coward says:

Re: Re: Re:24 Re:

That statement is factually incorrect. I see you repeat it multiple times below, but that does not make it any more correct. The Constitution is enumerating the powers of Congress in that section, not the rights of the people. It says that Congress has the power to grant such exclusivity, not that it must and not that those rights are guaranteed. It simply says that IF it promotes the progress of science and the useful arts than Congress MAY grant such an exclusive privilege.

Nowhere does it say or imply that such a monopoly is guaranteed.

That’s my Mike. Always got time to pop in to correct one minor issue, but completely unwilling to discuss his own beliefs or morals and unable to discuss the nuances of his position. JoCo got a minor buzz going over a little issue, so that means we don’t need copyright and that all competition is fair! Hooray internet! I’ll be here in case you ever decide to address the tough questions directly. Saying that you need more data or that it’s a moral question so it’s not even worth answering is you running away from the discussion with more excuses. Man up and discuss, Mike. For once in your life be a man.

Karl (profile) says:

Re: Re: Re:23 Re:

You can’t say that exclusive rights are not guaranteed. They are. It’s in plain English.

The Constitution does not say that authors are guaranteed exclusive rights. It says “Congress shall have the Right” to grant them. It grants rights to Congress, not to authors.

The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given.

– House Report on the Copyright Act of 1909

Anonymous Coward says:

Re: Re: Re:22 Re:

Just a point of clarification. The “exclusive rights” are not guaranteed. Congress has the ability to assign those exclusive rights, but only if they promote the progress of science and the useful arts.

So it does seem like a viable point to discuss if, at their current levels, they do that. Or… if they would do so moreso at other levels, or even no levels at all. Right?

Please discuss how this standard would work. How do we decide what promotes the progress? How do we measure it? Do you think the same things promote the progress as I do? That standard is meaningless if you don’t tell us what you mean by it. It’s always going to be your crutch to get out of discussing the messy details. You’ll just say the progress might be promoted more if we did something else, but you tell us how to measure the progress so we know when the changes are working. And considering your incredibly bleak outlook on all things copyright (I have yet to ever see you say even one positive thing about it, even though you feature copyrighted books in your book club for example). How in the world are you, the most opinionated and extremist person this is in the debate, any sort of person qualified to gauge what the progress means? And why should we trust you anyway when you never discuss the specifics?

Seriously, Mike. Stop running away from the hard questions. Stop pretending like you can’t have an opinion on things because you don’t have perfect data. Nobody has perfect data yet we all have opinions. Stop pretending like since you have an idea that maybe works for some people that you’ve got the answer and there’s no need to discuss messy things like morality. Morality matters, and if you think it doesn’t, you’re amoral. Are you amoral? Is that why you are incapable of ever discussing directly your personal views on morality?

Anonymous Coward says:

Re: Re: Re:22 Re:

Following a point I made elsewhere, the most heavily pirated stuff is also the most recent. If copyright reverted to 13 years, would that be an acceptable exchange for greater enforcement. Or would there still be the same hue and cry about collateral damage and free speech?

Do you believe that enacting SOPA (without DNS blocking) would be an equal trade for a 13 year exclusivity period?

Disclaimer: From the perspective of the studios, I don’t think so. They have search engine burial instead of the SOPA delisting; they have voluntary cooperation of payment processors and ad networks. All without the need to first go before a judge to have a hearing, as SOPA required.

Gwiz (profile) says:

Re: Re: Re:23 Re:

Following a point I made elsewhere, the most heavily pirated stuff is also the most recent. If copyright reverted to 13 years, would that be an acceptable exchange for greater enforcement. Or would there still be the same hue and cry about collateral damage and free speech?

I believe that if you limited copyright to a reasonable time, such as 13 years that respect for copyright would begin to be restored. That in and of itself would help curb piracy and greater enforcement wouldn’t be all that necessary.

As for collateral damage of free speech, any at all is unacceptable to me. Free Speech vs. Copyright is a no brainer for me and Free Speech wins hands down, every time. No exceptions. No passing GO. No collecting $200.

Gwiz (profile) says:

Re: Re: Re:25 Re:

I see, so some of the pigs are more equal than others.

No. Not at all. (great Animal Farm reference btw).

To me, the fundamental concept of Free Speech is infinitely more important than the fundamental concept of Copyright, that’s all.

Like the saying goes – I may not agree with what you say, but I will fight to the death for your right to say it. As for your right to monetize your copyrighted work, meh, not all that important to me really.

Free speech is also the reason I advocate a completely unfettered internet. The internet is the single most important invention since the Gutenberg press, in my opinion. For the first time, lowly average citizens can truly express themselves with a extremely low barrier of entry. All one needs is a computing device and a connection and thousands of others can hear you words. Never in the history of humankind has this been available. I believe it’s worth preserving unfettered access at any cost.

Anonymous Coward says:

Re: Re: Re:26 Re:

Like the saying goes – I may not agree with what you say, but I will fight to the death for your right to say it. As for your right to monetize your copyrighted work, meh, not all that important to me really.

Does that mean that you don’t click the ‘report’ button when I say things you don’t like?

Gwiz (profile) says:

Re: Re: Re:27 Re:

Does that mean that you don’t click the ‘report’ button when I say things you don’t like?

Actually, I don’t use the report button that way at all. As a matter of fact I rarely hit the report button at all. Obvious spam, stupid “First” comments and really, really offensive off-topic comments are all I report.

It’s my opinion that speech I disagree with should be countered with more speech, not censored. This also has roots in my firm belief in the fundamental concepts of Free Speech.

nasch says:

Re: Re: Re:21 Re:

Let’s talk about the exclusive rights that are guaranteed yet are under attack by pirates and freeloaders around the world. That’s the problem

Why is that the problem? When we’re seeing steady and large increases in creative output, which is what copyright is supposed to be all about, why are you defining copyright infringement as the problem?

Karl (profile) says:

Re: Re: Re:19 Re:

It has everything to do with the constitution:

Yes, and what the Constitution says is “moral” is the promotion of “the Progress of Science and useful Arts.”

If there is any moral imperative, it is this, and this alone: copyright “must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” (Twentieth Century Music Corp. v. Aiken.)

The granting of exclusive rights is not a moral good. In the words of Congress: “The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that outweighs the evils of the temporary monopoly.”

There is nothing moral about copyright’s exclusive rights. It is a purely utilitarian construct, designed to promote a different moral good: a moral good that accrues to the general public, not to copyright holders.

A moral good that you haven’t even mentioned in this discussion. The only thing you’re obsessed with is some kind of right to the “evil” of the temporary monopoly.

You are simply demanding that others respect your right to be evil. That is not a moral standpoint. By criticizing others for not agreeing with you, you have shown that you have no particular regard for morality.

Mike Masnick (profile) says:

Re: Re: Re:17 Re:

Thank you for the response. I do believe that the “moral question” you describe needs to be answered in order to move forward.

Well, even if it needs to be answered, since it’s a moral question, it needs to be answered individually, so I’m not sure how much benefit there is to trying to force a position on everyone.

So while I respect your thoughtful comments, I am still hoping someone else will add to the discussion taking the opposite view of my own so I can better understand the argument on that side.

Here’s the one point I will make on that: If (and I concede that this is a big if, but work with me here) it turns out that at some greatly reduced level of protection or exclusivity (or even none at all), the end result is actually a LARGER market with GREATER opportunity to make money, then wouldn’t it be possible, if not almost necessary, from a moral standpoint to argue that’s a favorable result?

I’d also add that I agree that there are successful artists who have done well with out utilizing copyright protections. I still do not believe that makes a compelling case to to remove those protections for everyone.

I agree that that alone does not make a compelling case for removing protections from everyone. But, it, at the very least, suggests that there are alternatives to relying solely on exclusivity and protectionism. It is that space that I think is worth exploring. Are those who do that exceptions and outliers or is it possible that those are leading the way to a better way to create/promote/connect/distribute/monetize?

The notion that someone has poured years of their life and millions of dollars into a project, yet has no greater rights to financially exploit it than any member of the public still strikes me as absurd and fundamentally unfair. I’d love to hear the argument against my position.

Well, here’s the thing: even if we assume they have “no greater right” I would argue that they have MUCH, MUCH, MUCH greater opportunity to financially exploit it than anyone else. And that’s the key point that I think those examples show, and which is the area I think is worth exploring.

And, if they can better exploit the work, even without the exclusivity (or with greatly diminished exclusivity), then, is that really unfair?

Anonymous Coward says:

Re: Re: Re:18 Re:

Well, even if it needs to be answered, since it’s a moral question, it needs to be answered individually, so I’m not sure how much benefit there is to trying to force a position on everyone.

So we all get to decide for ourselves what’s moral? So I could murder your family, and as long as I think it’s moral, that’s OK? Of course not. The fact is that we as a society decide that certain things are amoral. Please stop running away from the morals. You can at least tell us what you think is moral. Stop making excuses.

Here’s the one point I will make on that: If (and I concede that this is a big if, but work with me here) it turns out that at some greatly reduced level of protection or exclusivity (or even none at all), the end result is actually a LARGER market with GREATER opportunity to make money, then wouldn’t it be possible, if not almost necessary, from a moral standpoint to argue that’s a favorable result?

Lots of ifs and maybes, but extremely short on the details. What about people are feeding their children today? Why should the fruits of their labor be used against their will to make money for other people who don’t give any of the money to the creator? All of your ifs and buts are fun to think about as well, but that’s no excuse to run away from discussing the real issues. Stop running away. Stop pretending like “But Louis CK!” is a complete answer to the issue. It’s not.

I agree that that alone does not make a compelling case for removing protections from everyone. But, it, at the very least, suggests that there are alternatives to relying solely on exclusivity and protectionism. It is that space that I think is worth exploring. Are those who do that exceptions and outliers or is it possible that those are leading the way to a better way to create/promote/connect/distribute/monetize?

Now you’re actually admitting that it’s not compelling for removing the protections from everyone. Tell me this, why are you set on the answer being that there’s no exclusivity? You obviously think that there shouldn’t be any exclusive rights, hence your blog that day after day shits on the idea of exclusive rights while never discussing in a positive light. We all know you think there’s a better way. That’s fine. But given your concession that for now at least there is no compelling not to have exclusive rights for some, then why do you shit all over people when they enforce their exclusive rights? Having exclusive rights means excluding people. Why don’t you ever acknowledge that it’s OK to exclude sometimes?

Well, here’s the thing: even if we assume they have “no greater right” I would argue that they have MUCH, MUCH, MUCH greater opportunity to financially exploit it than anyone else. And that’s the key point that I think those examples show, and which is the area I think is worth exploring.

And, if they can better exploit the work, even without the exclusivity (or with greatly diminished exclusivity), then, is that really unfair?

You keep saying that there’s this great opportunity, but then you also concede that you can’t make the argument for everyone. So then why do you shit all over the people that exercise their exclusive rights? YOU CAN’T PROVE THAT YOUR ALTERNATIVES ARE BETTER THAN THE STATUS QUO FOR MANY PEOPLE. Given that, why are you so freaking bitter at everyone who enforces their rights?

And why won’t you discuss directly the problem of a party that spends millions to make something of value only to have that value misappropriated by others? Discuss the moral issue. Stop being such a coward. And stop ignoring me. It only strengthens my resolve to hound you on the questions you refuse to answer.

Robert (profile) says:

Re: Re: Re:21 RExmany

I already outlined those 6 steps. That’s how you maintain a fair and balanced approach.

You and the industry did NOT follow all of those steps.

iTunes/Spotify/Amazon are NOT FOLLOWING ALL of those steps.

Until you do, AND STOP PUSHING DRACONIAN “ENFORCEMENT” measures you won’t see your rights respected.

Psy didn’t push draconian enforcement policies, he didn’t even go after people with his current legal rights. He did well, very well.

The fair and balanced approach is to go after commercial infringers (NOT CREATORS OF TOOLS SOME USE TO INFRINGE NON-COMMERCIALLY). Then stop the exploitation in various markets. Why is a CD $30 in Australia but $15 here? How is that fair and balanced?

You want fair and balance, you have to give it! Copyright, as it exists, is NOT fair and balanced.

You want your kids to have a good life, teach them a damn trade and invest the money you earn for yourself and them.

If you think the only enforcement is through draconian laws, then fuck it, go after Microsoft because their OS allows the majority of the computer users to connect to the web, which the USER CHOOSES to use to download content (copyright or not).

Then go after Apple, Dell, Samsung, HP, etc…. all the computer manufacturers because Microsoft’s Windows doesn’t run on air. Then go after the cable manufacturers and fiber manufacturers, and installation technicians, don’t forget all the router companies, ISP’s, satellite companies, HDD manufacturers, technicians who install them…

because in your view, all of them COULD be used BY THE USER to infringe upon your “rights” to a TEMPORARY monopoly, despite the rest of the fucking planet telling you that how YOU UTILIZE your “rights” (aka distribute) is NOT what they want!

But hey, why listen, why not just figure out ways to lock it down like a politician because you don’t understand a) the true intention of the law, b) how the law has been manipulated to void the benefits to society it once intended to protect, c) you don’t want to listen to what people want and prefer to tell them what they want and complain when they figure a way around your wall, you built and support.

Josh in CharlotteNC (profile) says:

Re: Re: Re:17 Re:

I do believe that the “moral question” you describe needs to be answered in order to move forward.

Why does it need to be answered to move forward? What if circumstances make it moot?

If (in general) creators can make a living without requiring exclusivity to what they create, then the answer to whether they should have a right to exclusivity doesn’t matter. If both society and creators are better off without an exclusivity right then the concept of fairness does not apply.

Anonymous Coward says:

Re: Re: Re:18 Re:

If both society and creators are better off without an exclusivity right then the concept of fairness does not apply.

That’s a huge part of the argument. Beyond the fact that the Constitution grants rights holders exclusive rights already. I dispute that creators are better off. There’s no way I am better off if I have spent five years and $2 million on a movie that you, Josh, have the same right to monetize during my exclusive rights period as I do. That is absurd.

Robert (profile) says:

Re: Re: Re:19 Re:

Can you stop repeating you spent 2mill/5yrs on a movie?

The more you repeat, the more annoying you become and the less sympathy you obtain.

If your movie is good, people will buy it. If you want more to buy it, don’t lock it down, and offer unique, actually scarce goods and you’ll make even more money.

PaulT (profile) says:

Re: Re: Re:20 Re:

The funny thing about that screed is that it opens up the next logical question – WHY did you spend so much time and money? A true artist who had a story he just needed to tell would happily let the story get out there, grateful for financial success but more grateful for the number of people who saw it. He’s not likely to whine about people seeing it for free, but happily accepts any profits coming his way. The other side of the scale is a profiteer – someone who saw film merely as an exercise in making money and so is thus heavily disappointed that the riches he sought were not coming his way.

Frankly, we need more of the former and less of the latter. Which is why this type of argument is hilariously ineffective.

Josh in CharlotteNC (profile) says:

Re: Re: Re:19 Re:

Beyond the fact that the Constitution grants rights holders exclusive rights already.

This is why so many of these conversations turn bad. You are knowingly and deliberately mistating facts.

The Constitution does not grant any exclusive rights to creators. It grants Congress the power to enact laws for the purpose of promoting the progress of science and the useful arts. There would be no Constitutional issue if Congress decided to abolish copyrights.

I dispute that creators are better off. There’s no way I am better off if I have spent five years and $2 million on a movie that you, Josh, have the same right to monetize during my exclusive rights period as I do. That is absurd.

You are better off. You have a far better oppurtunity to exploit your work than I would. You can make a deal with Netflix for them to distribute your movie – or any other company that would pay you so they can distribute it. Responsible companies would only deal with the creator of the work where it is possible, and the public has shown that they are absolutely willing to support the creators by choosing responsible companies to give their money to when it is an attractive option in terms of availability, features, and price. I myself have done so – as I stated above, I can’t remember the last time I torrented music since I started paying for Spotify and before that Grooveshark.

Anonymous Coward says:

Re: Re: Re:20 Re:

Josh,

Congress has a duty to implement those creator rights which are in the Constitution. That’s why it was important enough to appear in the constitution. Copyright didn’t spring up from a law or bill. It is derived directly from Constitutional mandate.

“I dispute that creators are better off. There’s no way I am better off if I have spent five years and $2 million on a movie that you, Josh, have the same right to monetize during my exclusive rights period as I do. That is absurd.”

You are better off. You have a far better oppurtunity to exploit your work than I would. You can make a deal with Netflix for them to distribute your movie – or any other company that would pay you so they can distribute it.

Here’s where your train starts to run off of the fucking tracks.

Responsible companies would only deal with the creator of the work where it is possible, and the public has shown that they are absolutely willing to support the creators by choosing responsible companies to give their money to when it is an attractive option in terms of availability, features, and price.

Responsible companies? If you have the same legal right to sell my movie as I do “responsible companies” acting within the law will buy the rights from you (or someone else) for $10, $100, $1000, $10,000 or even $1 million. Meanwhile, I have $2 million invested along with my time. How do I make my investment back? Why would a company pay me millions more for the identical product they can legally obtain elsewhere for a pittance? This shit is really weak Josh, I honestly don’t see how you can believe it.

nasch says:

Re: Re: Re:21 Re:

Congress has a duty to implement those creator rights which are in the Constitution.

That is ridiculous. Look at the other powers granted by that section: http://en.wikipedia.org/wiki/Enumerated_powers

You’re telling me Congress has a duty to borrow money? To levy tariffs? To declare war? If not, then what makes the copyright clause different from all the others? If so, then you are way past left field.

Josh in CharlotteNC (profile) says:

Re: Re: Re:21 Re:

Congress has a duty to implement those creator rights which are in the Constitution. That’s why it was important enough to appear in the constitution. Copyright didn’t spring up from a law or bill. It is derived directly from Constitutional mandate.

Bollocks, and you know it. I’ll let you reply to nasch^ if you want to keep going down that absurd path.

Responsible companies? If you have the same legal right to sell my movie as I do “responsible companies” acting within the law will buy the rights from you (or someone else) for $10, $100, $1000, $10,000 or even $1 million.

Here’s where you always fail to understand where I’m coming from.

You think responsible automatically equals legal, and that illegal automatically equals irresponsible and immoral.

I will not accept that. As Augustine of Hippo said: “An unjust law is no law at all.”

The completely one-sided contracts that the labels get musicians to sign by promising them the world, while taking every penny they make through bizarre accounting and turning them into indentured servants, are perfectly fine to you since they’re legal. Companies sending out DMCA notices and forcing down content that only has a vague resemblance or brief snippet to a copyrighted work are perfectly fine to you since it is legal. To me, neither of those things are fine – they are unethical and morally reprehensible.

You have gone down the path where your morals have been defined by what an authority (the government) will allow you to get away with if you convince them to pass a law. That’s frightening and has led to all sorts of historical excesses. Please get a wider perspective for your own sake.

As we’ve seen in so many cases where someone is taking credit for someone else’s work, the public backlash and bad press would stop responsible companies from doing what you describe. Nearly all ordinary people, when given the chance and in a way that they can accept and afford, will do the right thing.

Copyright infringement and piracy of content happen when you don’t give them that chance.

Anonymous Coward says:

Re: Re: Re:22 Re:

As we’ve seen in so many cases where someone is taking credit for someone else’s work, the public backlash and bad press would stop responsible companies from doing what you describe. Nearly all ordinary people, when given the chance and in a way that they can accept and afford, will do the right thing.

I’m not talking about taking credit, I’m speaking of wrongful appropriation. Where is the widespread outrage over pirate sites unlawfully distributing copyrighted works? I have seen no popular uprising.

Josh in CharlotteNC (profile) says:

Re: Re: Re:23 Re:

I’m not talking about taking credit, I’m speaking of wrongful appropriation.

You focus on one aspect while failing to understand that they are linked. People want to support the creators they love when given the chance.

I have seen no popular uprising.

I guess few people it as wrong, or at least not that important an issue, or just a business model dispute.

Gwiz (profile) says:

Re: Re: Re:23 Re:

I’m speaking of wrongful appropriation. Where is the widespread outrage over pirate sites unlawfully distributing copyrighted works? I have seen no popular uprising.

I would say there has been no widespread outrage over pirate sites unlawfully distributing copyrighted works for two main reasons:

1) The most popular pirate sites are not actually distributing the works themselves. They are only connecting those who wish to share between themselves. Sure there are ads on these sites or subscriptions, but most filesharers feel that to be acceptable for the service they provide and the bandwidth and overhead that has to be paid. You might not see it as a huge distinction, but I think the average filesharer does. In their minds they are paying to be connected other filesharers, not paying some company who illegally appropriated someone else’s copyrighted works.

2) The huge over-extension of copyright and massive pushes for draconian punishments has created a general disdain of copyright in the general population. This part of the equation is entirely on the shoulders of the content industries and is completely up to them to rectify it. If you want copyright to be respected to an acceptable degree, then respect MUST be reciprocated to the general public or you will get nowhere fast. Returning things back somewhere near the original copyright laws would be a huge step towards achieving this. Limited time would actually mean a limited time. Works would start to enter the public domain once again. The public would actually see fruition for holding up their end of the bargain.

Anonymous Coward says:

Re: Re: Re:24 Re:

Good newsI My ride is delayed, so I have time for another bitch slap.

“I’m speaking of wrongful appropriation. Where is the widespread outrage over pirate sites unlawfully distributing copyrighted works? I have seen no popular uprising.”

I would say there has been no widespread outrage over pirate sites unlawfully distributing copyrighted works for two main reasons:

1) The most popular pirate sites are not actually distributing the works themselves. They are only connecting those who wish to share between themselves. Sure there are ads on these sites or subscriptions, but most filesharers feel that to be acceptable for the service they provide and the bandwidth and overhead that has to be paid. You might not see it as a huge distinction, but I think the average filesharer does. In their minds they are paying to be connected other filesharers, not paying some company who illegally appropriated someone else’s copyrighted works.

Shall I cue my comparison to hoteliers offering rooms by the hour knowingly profiting from prostitution or do you prefer to answer why bankers should be able to turn a blind eye when Tony Montana shows up with duffel bags full of hundred dollar bills?

2) The huge over-extension of copyright and massive pushes for draconian punishments has created a general disdain of copyright in the general population. This part of the equation is entirely on the shoulders of the content industries and is completely up to them to rectify it.

Here’s where I get to point out that the “draconian” laws arose due to disrespect of copyright. Not vice versa.

If you want copyright to be respected to an acceptable degree, then respect MUST be reciprocated to the general public or you will get nowhere fast. Returning things back somewhere near the original copyright laws would be a huge step towards achieving this. Limited time would actually mean a limited time. Works would start to enter the public domain once again. The public would actually see fruition for holding up their end of the bargain.

Heres a homework assignment. Go look at the Top 100 most pirated works of 2012- film, tv, music- no matter. Then report back how many would fall outside of the original copyright limitation span. Go look at the Top 1000 for that matter.

Josh in CharlotteNC (profile) says:

Re: Re: Re:25 Re:

Here’s where I get to point out that the “draconian” laws arose due to disrespect of copyright. Not vice versa.

And here’s where I’ll point out that disrespect for copyright arose out of a failure of the content industry to embrace new business models that new technologies made possible.

Josh in CharlotteNC (profile) says:

Re: Re: Re:27 Re:

Piracy is the competitor. And please point out exactly what they are stealing from you. Is it the money that is theirs that they weren’t going to give you for your poor quality products/services? Is it the money they paid for services that did give them what they want? Is it the money they spent on other forms of entertainment instead of the kind you made? Is it the content that you still have?

Robert (profile) says:

Re: Re: Re:29 Re:

It’s also misleading! And unless your creative output is enriching, they are not enriching themselves.

Your right to create exists regardless. Your right to release and copy and release those copies exists regardless.

They are not respecting your exclusivity for a number of reasons, already listed, not wasting time repeating.

Josh in CharlotteNC (profile) says:

Re: Re: Re:25 Re:

Heres a homework assignment. Go look at the Top 100 most pirated works of 2012- film, tv, music- no matter. Then report back how many would fall outside of the original copyright limitation span.

14 or 28 years? Nearly all of them, I’m sure. There’s a problem with this line of thought. At the time those term lengths were created, the world was a very different place.

For example, the fastest means of communication was a courier riding a fast horse, and they could be carrying little more than a few books worth of information. While the printing press was widespread, it still wasn’t exactly cheap to make copies and distribute them.

It would take days for small smounts of information to spread from one side of the country to another, even assuming it was really important information.

Now, I can carry a copy of the sum total of human creativity prior to 1990 or so in a small bag (if not my pocket), and I could transmit it entirely around the world in times ranging from seconds to hours.

Yet copyright term length has moved in the complete oppposite direction from technological progress.

Josh in CharlotteNC (profile) says:

Re: Re: Re:21 Re:

So, one criticism that you said above is that the anti-copyright side has never offered up solutions. Others have, I have not. I’ve laid out specifically products/services that would get me to stop pirating (and as stated, Spotify has done so as far as music goes), however I’ve never laid out the legalislative side, short of “burn it to the ground.” Here’s my attempt at a framework of a compromise between no copyright and what we have now:

1) All personal copying/format shifting/time shifting is legal, regardless of the method used (i.e. no more anti-circumvention clause in the DMCA).
2) Infringement over filesharing networks by individuals for no monetary gain may be punished in the following way:
a) Fines may not exceed 20 times the fair market value of any individual work, to a maximum of $200 per work, unless the work costs more than $200, in which case that is the maximum fine. Therefore, if someone is sharing a song that can be purchased for $.99 on iTunes, the fine may not exceed $19.80. A rip of a 15-track CD that sells for $15 would cap out at $200. A rip of a DVD that costs $25 would cap out at $200. A $50 video game is again capped at $200. A $300 piece of software – maxed at $300. Collections/anthologies I’m open to some ideas. These are maximum fines – a neutral party may adjust per incident.
b) Administrative costs for each incident may not exceed $50 per incident. If you can figure out a way to prosecute someone sharing 1 song and pay for the cost with $70 in potential fines, go for it.
c) No monkey business in charging someone multiple times for the same file detected at different times. No monkey business charging someone 20 times individually over 20 songs that came from the same CD.
c) No forced disconnections, throttling, etc. of the connection.
d) Due process must be followed. Parties have the right to fully examine all evidence and the methods used to gather it and point out flaws.
e) If the question of who performed the infringement (in the case of multiple people at the same IP address), investigation must be performed to identify the correct person if the proceedings are to continue.
3) A creator may be granted a maximum of 10 years of commercial exploitation of a work under the following conditions:
a) Licenses must be granted to distribute to other commercial entities at fair, reasonable, and non-discrimintory rates. Any process to set those rates for a wide swath of companies must be open, presided over by a neutral body made up of representatives from consumer protection and public advocacy groups as well as content and tech industry reps. No particular side may have enough votes to dominate the body.
b) No forced-windowing. If you want your movie showing in theaters and Netflix wants to stream it at the same time, it happens. You may of course negotiate individually, but I imagine if this system were to come about no one would want to go back.
4) Commercial scale infringement can be prosecuted, but fines and penalties must be reasonable and based on profit or revenue of the infringer. But if 3) happens, this would rarely be necessary. Jail time should be completely off the table.
5) An end to one-sided contracts and shady accounting. I’m not sure how to do this in a sane manner, so I’ll leave it for the responsible lawyers to work out.

I’m sure others can expand on some of these ideas.

Josh in CharlotteNC (profile) says:

Re: Re: Re:23 Re:

No, make it so the everyone benefits from the system, including the creators, and all the profits and power doesn’t go to a few middlemen who corrupt the system as a whole.

You keep your system if you want it – I’ll keep pirating until a reasonable system emerges for the content I want. Keep your penalties and strikes – you’re only accelerating the emergence of strong cryptography for everyone. Keep your focus on enforcement over providing better services to customers – they’ll spend their money elsewhere. Keep heading down that same tunnel – but here’s a tip – that’s not the light at the end – its the headlamp of the next oncoming train of more disruptive technologies and an arms-race you cannot win.