Dangerous Copyright Ruling In Europe Opens The Door To Widespread Censorship

from the bad-news dept

The EU Court of Justice (CJEU) has been issuing some seriously dangerous copyright rulings recently. Last fall, for example, there was the ruling saying that mere links to infringing content could be direct infringement, rather than indirect (or not infringing at all). Even worse, that ruling argued that posting hyperlinks on a site that is “for profit” requires an assumption that the platform is sophisticated enough to make sure the links are not to infringing content. As we warned that would lead to problematic results, such as a followup ruling in Sweden that merely embedding a YouTube video can be seen as infringing.

Given that background it is not surprising, but still rather unfortunate, that the latest CJEU ruling on copyright takes this to the next level. It basically ignores the clear safe harbors of the EU’s Copyright Directive — which note that platforms should not be responsible for infringing actions of their users — and says that the Pirate Bay is liable for infringement by its users because it has made infringing works “available.”

In today?s judgment, the Court holds that the making available and management of an online sharing platform must be considered to be an act of communication for the purposes of the directive.

That’s… a very dangerous interpretation of the law. It undermines two very important concepts in just one sentence. The first is the basic concept of intermediary liability protections — which say that a platform should not and cannot be held liable for the actions of its users. This should be common sense. If the users break the law, go after the users, not the tools they use. This ruling does the opposite. The second concept that is undermined here is that for infringement to actually occur, distribution (i.e., actual copying) has to happen. Instead, this ruling embraces the twisted notion that merely “making available” a work is somehow infringing. And, here, the court not only gets both of those important concepts wrong, but merges the wrongness together, such that a platform that people use to make works available is suddenly liable for the theoretical infringement of those works. That’s… bizarre.

And, of course, the end result of this is that the CJEU is basically clearing the way for courts to order ISPs to block the Pirate Bay entirely (even non-infringing content on TPB). The folks over at TorrentFreak have the background details on the case, which involve attempts by the Dutch anti-piracy organization BREIN to demand that ISPs block all access to TPB. This ruling clears the way for that to happen.

There are other problematic parts of the CJEU ruling (the full text is not yet out, but this is from the press release from the CJEU explaining the ruling). Here, for example, the Court tries to justify ignoring the intermediary liability protections that should be afforded to a platform by trying to argue that TPB somehow does more, which makes it deserving of being liable:

Whilst it accepts that the works in question are placed online by the users, the Court highlights the fact that the operators of the platform play an essential role in making those works available. In that context, the Court notes that the operators of the platform index the torrent files so that the works to which those files refer can be easily located and downloaded by users. ?The Pirate Bay? also offers ? in addition to a search engine ? categories based on the type of the works, their genre or their popularity. Furthermore, the operators delete obsolete or faulty torrent files and actively filter some content.

But think about that for a second. That’s the kind of thing that basically any platform does. Indexing what users post on your platform is a standard thing. I mean, our search here has indexed what uses post in the comments, but that shouldn’t magically make us liable for what users post in the comments. Second, the fact that they “delete obsolete or faulty torrent files and actively filter some content” shouldn’t magically make them liable. In fact, this is exactly why, in the US context, we have a section of CDA 230 that explicitly says that moderating some content shouldn’t make you liable for that which you left up. That’s because the end result of reading the law this way will be the exact opposite of what most people want. That is, based on this ruling platforms should not moderate any content at all because the court says that doing so suddenly makes you liable for that which you did not moderate. Thus it actually actively discourages content moderation.

The other problematic part from the press release about the ruling is this:

Moreover, the operators of ?The Pirate Bay? have been informed that their platform provides access to copyright-protected works published without the authorisation of the rightholders. In addition, the same operators expressly display, on blogs and forums accessible on that platform, their intention of making protected works available to users, and encourage the latter to make copies of those works. In any event, it is clear from the Hoge Raad?s decision that the operators of ?The Pirate Bay? cannot be unaware that this platform provides access to works published without the consent of the rightholders.

Again, this should not and cannot be the basis for liability. Again, within the US context, we went over this in the Viacom v. YouTube case. It’s one thing to know that some infringement happens via your platform. It’s another thing entirely to know which content is infringing. That’s not as easy to figure out as some people insist. Again, this kind of thinking would outlaw things like the VCR. Yes, the makers of VCRs knew that some infringing content would be viewed or recorded via the devices, but the device makers were not held liable for that. This CJEU ruling seems to break with all of that.

And while representatives from The Pirate Bay are laughing off this ruling (quoted in the Torrentfreak article above), it won’t be a laughing matter for many other companies who may face expanded liability because of this mixed up ruling. It also, likely, will depress entrepreneurship and innovation in the platform space in the EU. All because the legacy content industry is so infatuated with The Pirate Bay that it won’t focus on improving its own offerings instead.

Filed Under: , , , ,
Companies: brein, the pirate bay

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Dangerous Copyright Ruling In Europe Opens The Door To Widespread Censorship”

Subscribe: RSS Leave a comment
Anonymous Coward says:

basically, what is happening is exactly what i said, that the Internet is being handed over to the entertainment industries and they are going to have carte blanche to do with it exactly what they want, with government and court approval! the reason, in my opinion, more than anything is so that info can be handed to governments whenever they want it and, even more so, censorship can be implemented to stop the escapades of government officials, court officials, the rich and famous can be suppressed rather than be transmitted world-wide, in seconds and therefore have their secrets kept from public eye and scrutiny! all the while this is happening, every single thing of everyone else lives will be scrutinised by all those above so as to be able to stop any dissent, any exposure of corruption, anything that prevents the bonne idle fuckers in the same places mentioned above from having to do a damn thing to be given a fortune, every day for life and then able to pass the conditions on to their next of kin!!

Anonymous Coward says:

Re: Re: Re: If you want to limit The Rich, good! But that's not about copyright.

That’s why the copyright advocates that troll this site are coincidentally also fans of yielding to authoritarianism and surveillance (unless it’s Google, because fuck Google). Because you’re not allowed to complain about surveillance until you know it’s illegal, or those responsible are caught.

It also gives these copyright advocates a reason to rail against leakers like Snowden for piercing the veil.

Anonymous Coward says:

Re: Re: Re:2 If you want to limit The Rich, good! But that's not about copyright.

Can I just ask you a question without offending you – what is it that you would really like in terms of ownership of copyright, ownership of property, ownership of bank accounts, etc.? My sister, for example, believes that everyone should share everything and the world would be a better place (she lives in Vermont, a “hippie” of the 60’s). Is that what you are advocating? Or would you prefer to leave most of the ownership potential as it is, but not for copyright? Put another way, concretely, what system would you advocate?

Thad (user link) says:

Re: Re: Re:3 If you want to limit The Rich, good! But that's not about copyright.

I’m not the guy you were asking, but speaking for myself:

what is it that you would really like in terms of ownership of copyright, ownership of property, ownership of bank accounts, etc.?

The very first thing that I would like is for people to stop mentioning copyright and property in the same breath, because they are completely different things. Ideas are not objects. They’re not subject to the same physical laws, and they aren’t, and shouldn’t be, subject to the same legal ones.

Copyright isn’t property. It is exactly what it says on the tin: a right to copy. Physical objects cannot be freely and instantaneously copied; copyrighted works can.

Copyright, as described in the Constitution, is a temporary monopoly, restricting everyone but the rightsholder from copying a work. (There are fair use exceptions. They are very, very important, but the copyright lobby argues that they are not.) This monopoly is meant to be temporary, to give a financial incentive to creators sufficient to encourage creation, but also recognizing that, eventually, useful arts and sciences are best promoted by allowing everyone to copy works freely and without restriction.

What are my feelings on copyright? That life of the author plus seventy years is far outside the purpose and intent of copyright, and that the original term of fourteen years, renewable once to 28, was more than sufficient to promote the useful arts and sciences. That corporations whose business revolves around continued exploitation of the works of long-dead people are parasites, and that corporations that push to extend copyright terms while simultaneously turning a profit on public-domain works are hypocrites.

Anonymous Coward says:

You keep assuming that mere statute, passed by politicians paid-off by corporations, is fixed law for all time, over-rides common law and common sense.

And you don’t learn no matter how many court cases you see.

This gives good outline of how copyright / “platforms” / file hosts / torrent sites are going to end up. Content MUST be protected: “I made it, therefore it’s mine” is basic to human nature and civilization.

You are in ZERO danger and not being oppressed by copyright just because you want to be entertained for free. Create something of your own and you’ll learn why copyright exists. In fact, it’s piracy that suppresses the free speech of creators — who must get income from it to eat — and creates the pressures for clamping down at the margins of “free speech” — though links to infringed content are NOT “free speech”, but practical infringement.

Anonymous Coward says:

Re: You keep assuming that mere statute, passed by politicians paid-off by corporations, is fixed law for all time, over-rides common law and common sense.

I’m truly baffled that the folks at Techdirt thought flagrant law breaking was going to just go on forever unchecked. I mean, really? Society breaks down when things like that are allowed to occur.

Anonymous Coward says:

Re: Re: You keep assuming that mere statute, passed by politicians paid-off by corporations, is fixed law for all time, over-rides common law and common sense.

I agree. Why we should go out of the way and make this law apply for everything. Every car manufacture should be responsible if their cars are used for anything illegal. Schools should be held responsible for students education. Kids becomes a troublemaker, it is the schools fault and should be held liable. This flagrant law breaking needs to stop. Just the other day, I saw someone through a starbucks coffee cup out on the road. How dare Starbucks allow that to happen.

Anonymous Coward says:

Re: Re: Re:2 You keep assuming that mere statute, passed by politicians paid-off by corporations, is fixed law for all time, over-rides common law and common sense.

Maybe you shouldn’t compare apples and transmissions there, eh?

Yeah, everyone knows there should be different laws for different folks. You can’t compare a Techdirt pirate to a corporate officer.

Roger Strong (profile) says:

Re: You keep assuming that mere statute, passed by politicians paid-off by corporations, is fixed law for all time, over-rides common law and common sense.

Create something of your own and you’ll learn why copyright exists.

And…? Content from this site – entire articles – show up on other sites just as soon as they’re posted here. And yet we don’t see the owners of Techdirt suing anyone over it.

I’ve created and maintained a list of power equipment manufacturers – who makes what, and their service and technical reference links – for over 20 years on my company web site. A dozen other companies have since copied it to their own web sites. People copy it to their related eBay auction pages to increase their hits. And I’ve never considered suing any of them.

In both cases, people tend to gravitate to the original. It’s not hurting the original, or the ability to monetize the original.

We know why copyright exists. It’s not about being anti-copyright. It’s about being anti-copyright abuse.

Anonymous Coward says:

Re: Re: You keep assuming that mere statute, passed by politicians paid-off by corporations, is fixed law for all time, over-rides common law and common sense.

The issue here is currently, you’re free to sue or not. Laws should better define use cases. Who’s to say that in the future your company won’t be bought out by someone who’s lawsuit trigger-happy ?

Anonymous Coward says:

Re: Re: You keep assuming that mere statute, passed by politicians paid-off by corporations, is fixed law for all time, over-rides common law and common sense.

If you had spelled ‘argument’ and ‘cranial’ correctly you might have pulled that off. Oh, except medically, that would be neurological ‘deficits’, not ‘deficiences’. Never mind. Next time, maybe.

That One Guy (profile) says:

Re: If you want respect for your works you need to give it to others

This gives good outline of how copyright / "platforms" / file hosts / torrent sites are going to end up.

Shut down as no longer viable, impacting massive amounts of perfectly legal speech and content? Yeah. The fact that you seem to see this as a good thing is a main difference between you and others.

Content MUST be protected: "I made it, therefore it’s mine" is basic to human nature and civilization.

Nope. Copyright is specifically geared towards serving not the creators but the public, via a (long broken) deal of ‘You get a government granted monopoly over this for a certain amount of time and then the public owns it so the next batch of works can be made’.

The only way you get to ‘own’ something like an idea or story, something that can be easily copied, changed and shared is via society granting you that privilege. Were your idea truly the case innovation and creativity would grind to a halt, as everyone would be forced to start from scratch on anything less they ‘infringe’ on someone else’s work.

You are in ZERO danger and not being oppressed by copyright just because you want to be entertained for free.

Wrong and a strawman in a single sentence, efficient. When sites are held liable for user submissions they have to weight the risk of a legal fight that’s likely to cost a good amount whether they win or lose versus user submitted content like comments and/or files.

In a situation like that, pretty much all but the major ones are going to shut down or severely restrict user submitted content, significantly harming perfectly legal speech and content, with the final punchline being that those engaged in actual copyright infringement just move on to another site.

In fact, it’s piracy that suppresses the free speech of creators — who must get income from it to eat — and creates the pressures for clamping down at the margins of "free speech" — though links to infringed content are NOT "free speech", but practical infringement.

Bollocks. Creating copies, even infringing copies in no way ‘forces’ the owners of copyrights to engage in actions that impact perfectly legal speech. They choose to engage in actions that stand to have a significant negative impact on legal speech and content, no-one’s holding a gun to their head and making them do it.

Anonymous Coward says:

this shit has been started by Hollywood and the USA entertainment industries and because, basically, nothing was done to try to stop it AND the DoJ interpreted and adapted laws to make it possible, BREIN and other such bodies have jumped on the band wagon and have been doing whatever they can to ensure that the entertainment industries everywhere can get complete access to everyone who uses the internet in any way at all! they have also been doing whatever they can to ensure those same industries get closer and closer to taking control of what can and cant be done on the internet and by whom, as well as what content can be made available and who can have access to it! in a very short period of time, the internet has become a place that the entertainment industries say who can do what and it wont be many more months before no one will be able to use, from the general public, without getting permission from those industries AND paying a fee! unfortunately, Timothy Berners-Lee has sat back, thumb up ass and done nothing except go along with the entertainment industries and their representatives and allowed them to manipulate this take over. what a shame for the world to lose the greatest invention ever to an industry that is out only for money and control, but based on make-believe!!

Anonymous Coward says:

Re: Re: If you complain about corporatism, good! But that isn't copyright.

You know, posting from multiple TOR IP addresses doesn’t do shit to mask your identity if you keep using the same buzzwords in the same order that gives you a signature writing style.

And yes, it is copyright. Copyright drives corporations up and down the planet, from your precious RIAA to your precious Prenda Law. Everything is copyright.

Anonymous Coward says:

So if someone were to send a copyrighted image to someone else via, say, their cell phone and they do not have a license that allows sharing that image then the cell phone carrier is liable for that infringement.

Is the world /trying/ to shut down commerce or are legislators just retarded? Is that a requirement to hold office?

Anonymous Coward says:

The copywright laws differ from different countrys
,i could post a link to a video where the content is
in the public domain ,
but it might be judged to be infringing in the uk
or germany.
Many game videos use game play footage ,which may have a
music sound track thats not owned by the game publisher .
This law means it,ll be impossible for the next big
startup ,the next twitch or youtube to get started
in the eu ,
Only the largest companys like facebook or youtube
would be able to handle filtering
millions of user uploaded videos
for possible infringement and
to have the legal staff to deal with possible lawsuits.

Anonymous Coward says:

Here’s now everybody–even Cowardly Anonymous Trolls–are hurt by this.

Because even CATs need a litter box; and it’s no good for them if they have to defecate in PRIVATE–like, on their own hard drives, or on their own websites nobody would ever visit. But sites like Techdirt simply won’t be able to exist under the European model–they couldn’t afford the liability. End result, lonely troll crying into borrowed beer in some littermate’s basement.

Truly-important, culturally-significant sites like the Internet Archive would be equally threatened; original research wouldn’t be available to the public.

Like 99.99% of the world’s population, I don’t have access to the entertainment monopolists. When I’m looking for places to post my own work–musical arrangements, technical documentation, poetry, film, literary analyses, or whatever I might decide to create in the future–I’ll either have to administer and promote my own website–expensive and time-consuming–or I’ll need access to sites that accept public contributions. The community orchestras or choruses that I and my family are members of, depend on their own members for maintenance expenses, and do not profit for the public performances and/or recordings they produce. The authors I know best, write to disseminate their ideas, to teach, to preserve what they think is most valuable about folk and art cultures. All these goals are best served by low-cost, unrestricted reproduction.

Like a much-smaller but still-significant percent of the world’s population, I’m not benefited by the entertainment monopolists. Youtube is the only audio or video site that I’ve visited; and if every music-business-produced hit disappeared from the earth, I’d have been dead long before I would have noticed. There’s so much glorious music not covered by copyright, I doubt if I’ll ever notice whether there is _any_ that IS copyrighted.

So, for me, whether in my experience as creator, as cultural curator (having legally posted thousands of other people’s public-domain creations online), or as consumer, the kill-the-technology-before-someone-uses-it-to-be-naughty approach to enforcing copyrights can never give anything good, and continually causes pain, expense, time, and loss of previously created goods.

Johann Sebastian Bach created the world’s greatest music without any copyright law–arranging other musicians’ work for his own instruction, and copying his own work for his pupils. Antonio Vivaldi responded to unauthorized musical publications by … writing more music. Three of the four greatest English-language hymnwriters are on record as having no interest in restricting printing of their hymns. There are hundreds of thousands of books that are out-of-print; their authors’ heirs have ceased to keep track of who even owns the copyright, because there is no potential for economic benefit; but because the copyright exists there is no potential for noncommercial benefits to anyone.

I’m willing to spend my time doing the copyright research, in order to restore the potential for non-economic benefits. But it’s expensive and time-consuming; and some books that I’m morally certain are public-domain simply can’t be proven so. And so the benefits (not to mention the created works themselves) are lost.

It’s not just books: early Dr. Who episodes are believed lost forever; many silent movies are endangered because restoring fragile copies would be … “INFRINGEMENT!”

All harm, No good, All the time. That’s the copyright-fascist slogan. It doesn’t matter how much of the population is hurt, just so the lawyers get to charge money whenever a creative act occurs.

Anonymous Coward says:

Re: Re: Re:

“Seriously, anyone who thought unchecked infringement would just last forever is a profoundly silly person.”

Yes, but not for the reason you think. Infringement occurs against the background context of Hollywood making more money than it ever has, and blockbuster films continually breaking opening takings records (both statements verifiable.) Hollywood is not dying from piracy. Some research shows pirates are actually greater consumers of paid media than non-pirates. So it seems that piracy has little if any effect on Hollywood revenue.

But then, enter the lawyers! Companies like Brein and Rightscorps who only exist to get money out of infringers. If piracy ended they would be out of work! Go and lurk over at Torrentfreak and see the comments as to why people pirate; limited content both new and back-catalogue, geo-blocking, too many providers and a fragmented service, the expensive and unpleasant cinema experience, to name a few, and that if these complaints were met by a few providers at a reasonable cost, many many people would be happy to subscribe and not pirate. But the industry won’t give up its old model and distribute content in a way that people want. Control, laziness, who knows. But the lawyers certainly don’t want piracy to go away, they will always have work as long as there is piracy and increasingly heavy-handed laws to oppose it.

That One Guy (profile) says:

Re: Re: How does that saying go? 'Cutting off your nose to spite your neighbor'?

Notably lacking in your comment: Any counter to the arguments presented, in particular the one explaining why even you should care about the issue, because you will be impacted if it goes ‘your’ way.

Anyone who thinks they should get a pass for massively damaging free speech and the sharing of ideas just because they pull the ‘copyright infringement’ card doesn’t get to claim the moral high-ground.

AJ (profile) says:

Can they be hoist by their own petard?

If publishing links can be infringement, what’s the easiest way to get a court to publish links to infringing content and hence to become infringers themselves? Presumably electronically filing something that includes an attached document full of links would get that document published on the court’s website; do courts check everything included in filings?

The problem would presumably be that whoever tries it would want to avoid any repercussions to themselves, so they should be links to material that the filer has permission to publish but no rights to pass on that permission to anyone else (such as the court). Would that give the rights-holder standing to sue the court?

Does the law grant courts publishing rights to everything that gets filed in a legal case? (I guess there are probably rules which says a filer is responsible for redacting anything that shouldn’t be made public, but IANAL so I don’t know).

Anonymous Coward says:

Pushed it

The pirate bay pushed it to the limit and beyond and now the lone is being draw far behind them.

Tpb isn’t an innocent site. They have full knowledge of what their site is used for. They mock anuone with the guts to report copyright violations or file a DMCA notice with them. They profit grandly from all of this.

The judge got it right. There is no debate what the site is gor, there is no doubt it is for profit, and there is no doibt the operators are aware of the content they profit from.

Calling it a scary ruling and waving youtube embeds around is hyperbolic.

Anonymous Coward says:

Re: Re: Re: Abolish Copyright

Hmm, I think you’re confused; law enforcement doesn’t stop trying to eradicate crime simply because there’s a drop in the crime rate.

Everyone here is more than aware of the direction the piracy scene is trending, and there’s no reason to try and ignore reality.

That One Guy (profile) says:

Re: Re: Re:2 Abolish Copyright

Which might be a sound rebuttal had I said stop trying, I merely pointed out that if copyright infringement is really on the ropes then clearly the laws already in place are working fine, and there’s no need to ramp them up even more as the ‘threat’ is decreasing, taking the justification for even more and harsher laws with it.

The only reason to increase the laws at that point is basically impatience, ‘What we are doing is working but it’s not working fast enough‘, which makes for a rather weak justification to say the least.

As for the state of copyright infringement? Here, always has been always will be, will never be eliminated, and the usual efforts are little better than chasing shadows.

Anonymous Anonymous Coward (profile) says:

Creativity vs Protrections

I am a chef (retired) and more, and I spend my time giving away everything I know to people that know less. For free. I want my industry to prosper into the future, and I give away my knowledge to those that will control the future, just as I gave it away to my peers and employees when I was still employed.

Recipes are not copyright-able (even though some chefs would like them to be) and it has not hurt the industry. Those that think they are harmed by this lack of copyright are more harmed by by their insecurity.

Competition is the key to success in restaurants. The more competition there is, and the more one can show themselves to be different and better from the rest of the competition is what makes them stand out. Being different and better does not mean preventing the copying of recipes. Being different and better comes down to a whole bunch of things. Better service. Better atmosphere. Better presentation of the same dish served down the road. Better ambiance. Better accommodation of customer preferences. Etc. ad nauseum.

Making money from intellectual property is not just about the creation of that intellectual property, it is also about the implementation of that piece in the marketplace. One could write the best book, song, software ever and fail to implement it well, and no recognition would come. At least not right away. Maybe down the road, years, decades, centuries later, but not right away. Middlemen have had a part in making recognition more imediate, but take a look at classical music from the 17th and 18th and 19th centuries. They are still popular (to some degree) to those that like the genre and there were no middlemen (so to speak) back then. So far as making money, talk to the patronage system, rather than laws that were designed to make the creators wealthy, rather than the middlemen. Also, where does it say that creators should be wealthy?

Today’s focus on protection is more about obfuscating the shame Disney et al felt about raiding the public domain for content, and of course corporate profits. Probably more of the later. And surely more of the later for the rest of the middlemen in the game.

For those that will claim that creators are hurt by freely sharing content, look to the Hospitality industry where everything is shared (willingly or not) and perpetuates itself, longer than the existence of any intellectual property laws.

Anonymous Coward says:

Re: Re: Creativity vs Protrections

Why should he get to decide what rights another person has in regard to their creations? If he wants to give stuff away now that he’s financially secure, go for it. But he has no right to decide what happens with other people’s labor.

This stuff isn’t hard. It’s obvious to everyone- including the people here that pretend they don’t get it.

Anonymous Anonymous Coward (profile) says:

Re: Re: Creativity vs Protrections

Despite my misspelling of protections, I think that those things that were originally protected by copyright should be limited to the original copyright lengths, even though I also think those protections are unnecessary for the well being of the creator. Congress is allowed to make rules for patents and copyright, they are not required to.

Sun Ztu was not a beneficiary of copyright, yet his works are reproduced with significant regularity, and oft quoted. It is the quality of the work, and the quality of the implementation that make the difference. Clausewitz also wrote about strategy, and is well known, but is not as often quoted, or reproduced, though his life plus 70 years may not be over yet. Why one, and not the other? There are many, many, many more examples.

If in fact the only reason to keep copyright is to benefit the middlemen, then it should be abolished. If it actually, in fact and in practice benefits the creator, then keep it, but only for the original 14 years, which given today’s information could be shortened to 7 years without harm to the creator as that is where the most money is made, and anything after that is a detriment to new creations from the same creator.

The sample of the creativity of Chefs shows that copyright is not actually necessary for the creator to benefit. There are other factors involved, and creators who deny that are just insecure. Ego, when it comes to compensation, is about maintaining a lifestyle, not about supporting oneself and ones family. One can support oneself and ones family for less than the ego demands (see Mazlov’s Heirarchy of Needs Satifaction for more information, look closely at the base of the pyramid).

Middlemen who claim that creators succeed only because of them are also deluded (but knowingly so, as they benefit more than the creators) in that they are not actually needed. They help, but are not needed.

Teaching creators to approach the marketplace is something that should be part of the curricula, but I would not trust academics to actually understand business, unless they actually participated successfully in the field of business they propose to teach about.

Anonymous Coward says:

Re: Re: Re: Creativity vs Protrections

"One can support oneself and ones family for less than the ego demands[…]"
I don’t think anybody wants to go back to subsistence farming and dying from smallpox and flu.
Besides having a yacht or a penthouse is just as much of a lifestyle decision as having a certain car or house is.
Unless you think it’s somehow okay for the wealthy alone to enjoy the benefits of technology because there’s fewer of them.

What we need is a more modern set of IP laws, that is capable of adapting itself. Capable of distinguishing between luxury and necessity, between science and entertainment.
Otherwise we’ll just get more laws like the DMCA whose purpose is to keep us locked in an 18th century mindset.

For example, we DESPERATELY need FRAND-like terms for licensing scientific data.
Right now one can claim copyright on scientific data and outright REFUSE to license it (for any sum) just to block out competition.

Draco says:

Re: Re: Re:2 Creativity vs Protrections

I don’t think anybody wants to go back to subsistence farming and dying from smallpox and flu.

If Jonas Salk had patented the smallpox vaccine, smallpox would probably still be with us today. Instead, he gave no thought to the money he could make by withholding the vaccine from the children of the poor.

Abolish IP.

Anonymous Anonymous Coward (profile) says:

Re: Re: Creativity vs Protrections

Yes they do. And there are many reasons. The chief one is that they are under funded. Another is that the operators lack the sophistication to overcome their competition. These are the things I teach, for free.

I would rather have many restaurants, successful restaurants, in the neighborhood of my restaurant. That would draw more people to the area, and then allow me to show how my restaurant is different and better. To stand out amongst the others. I do not want any of the others to fail, and I would teach them my ‘secrets’, and then do a better job of implementing those ‘secrets’ to succeed better. That is what I have always done, and it is the right way to be.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re: Creativity vs Protrections

I would also like to add that restaurants are retail. A major difference is that restaurants manufacture what they retail, as apposed to other forms of retailing. In addition, restaurants do sales, service, and instillation on site, which is something other retailers do not perform. To make things even more complicate they do ‘just in time custom manufacturing’, long before that became a buzz word. Ever ordered your steak medium rare?

These and other things make restaurateuring more complicated than other retail businesses. Or even other businesses.

Anonymous Coward says:

Re: Re: Re:2 Creativity vs Protrections

No doubt you are correct that the restaurant business is difficult, complicated, and more challenging than many others. One of the major criticisms I have heard about the restaurant business from an investor point of view is that the business is only as good as the Chef and the Manager. The Chef is in charge of manufacturing, and the manager customer service. There really is no way to automate either one, or maybe even teach either one, some people are just really good at it and willing to invest the time and talent required.

Unfortunately, that makes it a terrible investment, since both Chefs and Managers can freely move to another locale without restriction and take all their abilities with them. No security for the investor, unless the investor IS the Chef or the Manager or both. Would you agree with that?

I think what you are saying is that your talent allows you to operate successfully, and you think it best that the market decides who is talented and who is not without restriction. I kind of buy that, if that’s your point.

Anonymous Coward says:

Re: Re: Re:3 Creativity vs Protrections

Ah yes the toxic mindset of modern capitalism. Let’s just stop investing in anything new, unproven. Let’s just stagnate, forever, and then cry that revenue is dropping when the market gets saturated.
People fail to realize that there’s little worse than having a monopoly on a non-vital service.
Having a monopoly is only truly good for your bottom line if you deal in food, water or shelter.
People can (and will) give up on everything else if they can’t afford the former.

Anonymous Coward says:

Re: Re: Re:4 Creativity vs Protrections

I’m not sure I’m following you. My point was that as a capitalist with capital, there are a lot of choices where to invest. The restaurant business struggles to attract capital because the success or failure is so closely tied to the Chef and the Manager, who often find better things to do (like run their own business) once they turn the corner into success.

Capitalism itself has quite a good track record, right? Much better than Socialism or Communism.

What about the Facebook guy, is he nuts? I think he was talking about giving everybody “free” money so they can do whatever they want. What a stupid idea. Who would work in that case, and for what? We would have a nation of navel gazers and little else.

You do believe in the concept of money, right? Or do you really think it possible that people can just “share the wealth” without anyone actually invested in the outcome of businesses?

Anonymous Coward says:

Re: Re: Re:5 Creativity vs Protrections

In this particular instance you’re right restaurants are a risky business to invest in.

But this is a far more pervasive trend. Note that I’m not blaming investors. After all it’s their money and they can to do whatever they want with it, as long as it’s not illegal.
But in the long term they will suffer too. With nobody willing to invest anymore, eventually that industry is reduced to a niche.

As for “the Facebook guy” giving out “free” money ? Basic Income is a very old (19th century) idea and Zuckerberg is not the first one to talk about it in one way or another.
Whether it would work or not, we don’t know, because nobody has ever tried it on any meaningful scale (like say a community of ~50.000 people).

Anonymous Coward says:

Re: Re: Re:6 Creativity vs Protrections

Since you seem to be pretty accomplished and experienced in the restaurant business, I would ask your opinion, are there any IP laws that you think are appropriate for that business? For example, say you have a technique for making Baked Alaska that is both safe and dramatic using some special ingredients – would you want to be able to keep your technique secret (like the Coca-Cola recipe)? Or, if you have a lot of customer contact information, Email addresses, dining history, favorite foods, would you want to keep that confidential? And your supplier information, best fish supplier, best meat supplier, purchase histories, price negotiations histories, that kind of thing, private information? Or do you think the right thing would be to openly share everything with everybody, and then let the chips fall where they may?

Anonymous Coward says:

Re: Re:

I know from experience that most artists only have a superficial understanding of Trademark and Copyright law.
And lawyers love it that way because it’s more profitable.

The “I made it, therefore it is mine” mindset, while technically correct, is extremely simplistic and, more importantly, it’s not what the law says.

In fact Copyright hasn’t worked like that since the 19th century.

The fact that something “is yours” does not (and should not) preclude other’s right to free speech whether it is in praise, criticism or research.

Since the signing of the Berne Convention almost every country has some form of allowing use of copyrighted works without prior permission – such as education, parody, etc.

Anonymous Coward says:

Re: Re: Re:

Yes, I would agree with you about most artists and their (low) level of understand the law. It usually starts out with very little understanding, but if they actually produce and sell a product, they learn as they go, as we all do. Usually by making mistakes, and getting attorneys to help sort it out, but after some time, avoiding mistakes and not needing attorneys.

And I think you’re right about critique, research and those types of things – those exceptions are important because they allow people to voice their opinions and in some cases to develop new solutions.

About education, yes, that’s a tricky area, fraught with both public and private motivations colliding willy nilly.

But if I read your post as a whole, you actually are accepting of the role of copyrights, as long as the exceptions are also included, right?

Anonymous Coward says:

Re: Re: Re: Re:

Funny you should mention exceptions. Many advocates and supporters of copyright do not believe any exceptions should exist or be included. Users My_Name_Here and tp have gone on the record to suggest that “fair use”, for instance, is a “novel legal theory” that shouldn’t be allowed to stand up in court. That’s not copyright that most users want, because the extents to which such a copyright system would extend to have been taken to ridiculous levels. Such as playing music for horses, humming a tune, or playing a song that you wrote yourself.

Anonymous Coward says:

Re: Re: Re:2 Re:

OMG this sounds like actual discourse on Techdirt. Thank you for that. I think I can agree with you about exceptions, I also believe that there should be some consideration as to the “greater good”. As long as it leaves opportunity for hard working people to earn the living of their own choosing by lawfully owning their own work, setting their own price and terms and being able to offer it to a market, I’m with you. Some exceptions are fair, IMHO.

Kevin Hayden (profile) says:

This opens a whole new copyright troll vector!

Trolls set up a website/page with some non-copyrighted/public domain stuff that folks might want or find interesting. They wait until a sufficient number of people publish links to it on their websites/facebook pages/etc. Now that there are lots of folks linking to the website, they swap out the non-copyrighted stuff for things they own the copyright on. Presto! Everyone who linked to them is now linking to their ‘valuable’ copyrighted stuff and must pay them for the ‘infringement’. Good thing Steele and Hansmier have been outed. I’m sure they’d be trying stuff like this pretty soon. Although I suspect there’s no shortage of other low-lifes to step up and fill their shoes.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...