It appears that the latest version of the treaty contains, buried within its many hundreds of pages, language that could require the U.S. to scuttle its plans for a sensible revision of this kind. [I say that this “appears” to be the case, because, of course, the text of the TPP has not been revealed to the public, so all we have are leaked versions appearing from time to time on WikiLeaks.] Any provision of U.S. law that eliminated “pre-established damage” or “additional damages” for any class of works could be a violation of various TPP provisions requiring that such damages be made available, and it even appears that distribution of orphan works would have to subject the distributor to criminal copyright liability.And, as he notes, this is actually a really big deal, even as some pretend that orphan works are just a small problem:
And if you’re still wondering “Is this really such a big deal?,” multiply it all by 10 million (or more). Remember Google Books? I don’t know about you, but I was pretty excited by the thought that every book ever published was going to be available to me over the Net — with all the lousy news out there, that sure sounded like a good thing for the human race, no? Well, the Google Books project foundered largely because of the orphan works problem. Even Google is not willing to take on $100 billion or so of potential exposure to infringement claims, and its attempts to reach a settlement that would have waived the rights of “orphan works” copyright holders to get statutory damages was unavailing — on the grounds that no court can approve a settlement waiving the statutory rights of persons who are not only not present in the courtroom to weigh in on the settlement, but who haven’t even been notified — because, of course, nobody knows who they are — that there is a settlement.And yet, through a few choice phrases in the TPP, we may end up stuck with the orphan works problem... forever. That doesn't seem like a good policy decision, and it's not even one that the USTR will discuss publicly since the agreement is still "secret."
"We want to get ahead of our customers’ needs once again by bringing them a unique, innovative service: Unlimited Music will help make the connection between fans of music from Québec and around the world, and the major music streaming players."On the surface most users initially like the idea of cap-exempt content. Indeed, carriers have tried to frame such a concept as "1-800" or "free shipping" for data, where the content company bears the brunt of the cost of delivering the content to the end user. Consumers pay less for data and select companies gain a marketing advantage. It's a huge win for everybody involved, right?
"The pernicious thing about zero rating is that it is marketed as a consumer friendly offering by the mobile carrier – “we are not charging you for data when you are on Spotify." But what all of this zero rating activity is setting up is a mobile internet that looks a lot more like cable TV than our wide open Internet. Soon a startup will have to negotiate a zero rating plan before launching because mobile app customers will be trained to only use apps that are zero rated on their network."For some reason, many people can't see the threat posed by zero rating. Stop by any Reddit thread on the subject, and you'll usually find most users utterly clueless to the potential pitfalls of letting carriers inject themselves as middle men in this fashion (free Spotify, bro!). Even T-Mobile, currently the US wireless industry consumer darling (whose "Music Freedom" idea Videotron is copying), doesn't understand the pitfalls of zero rating. Regulators too have gone out of their way to avoid seriously addressing zero rating, meaning that companies can dance over and under net neutrality rules, just as long as they're clever about marketing the violations as a boon to consumers.
Way back in early 2014, we wrote about the revelation that Microsoft and Machinima, the popular YouTube network, had worked out some kind of arrangement in which the newly-released Xbox One would get positive coverage from Machinima personalities. Likewise, Machinima's agreements with its own personalities leaked, laying out just exactly how those personalities would be compensated for pimping the Xbox One without ever informing fans that they were doing so. This, at a very minimum, was an existential gamble wagering the trust Machinima had built for itself amongst fans for the chance at some dollars from Microsoft. It was a bad wager. Once this all became public, I'm struggling to understand why anyone would put an ounce of trust in the Machinima outlet at all.
And now the FTC is involved, taking the time to ding Machinima for the behavior and enjoining it to never do anything similar in the future.
In a press release today, the FTC announced that the two parties have come to a settlement that will prevent Machinima from pulling this sort of shadiness again. Writes the FTC: “Under the proposed settlement, Machinima is prohibited from similar deceptive conduct in the future, and the company is required to ensure its influencers clearly disclose when they have been compensated in exchange for their endorsements.”The FTC also cited specific examples of Machinima's actions, including naming personalities that were involved, helpfully torpedoing those personalities' ability to get fans to trust them in the future.
Respondent paid influencer Adam Dahlberg $15,000 for the two video reviews that he uploaded to his YouTube channel “SkyVSGaming.” In his videos, Dahlberg speaks favorably of Microsoft, Xbox One, and Ryse. Dahlberg’s videos appear to be independently produced and give the impression that they reflect his personal views. Nowhere in the videos or in the videos’ descriptions did Dahlberg disclose that Respondent paid him to create and upload them. Dahlberg’s first video received more than 360,000 views, and his second video more than 250,000 views.The FTC then goes on to expose the entire deal Machinima had with Microsoft's advertising group, Starcom, which included an initial roll out of paid positive coverage by a few personalities, but was then to evolve into a Machinima-wide program of paid-for positive coverage of the Xbox One, with payments to be based on traffic/views.
Respondent paid influencer Tom Cassell $30,000 for the two video reviews that he uploaded to his YouTube channel “TheSyndicateProject.” In his videos, Cassell speaks favorably of Microsoft, Xbox One, and Ryse. Cassell’s videos appear to be independently produced and give the impression that they reflect his personal views. Nowhere in the videos or in the videos’ descriptions did Cassell disclose that Respondent paid him to create and upload them. Cassell’s first video received more than 730,000 views, and his second video more than 300,000 views.
"Why not have copyright law like property law - ie it lasts forever?"And then he claimed -- really -- that if copyright law were infinite it "would in turn increase the investment in industries like music." Does he have any support for this at all? If you look through the actual academic evidence on these things, no one has ever found any proof that longer and longer copyrights leads to greater investment. It's not as though Universal Music is going to think "gee, if only copyright lasted another century we'd invest more in it now." No one makes decisions like that. A key study from 1998 (the last time the US extended copyrights) in fact found that increasing copyright terms would "not be a useful" as an incentive to create more content. Even more ridiculous is Baker's focus on music, as that same study pointed out that, of all the major types of content, the revenue generated by copyright extension would have the smallest impact on music.
Dr Barker was also critical of the exceptions that have crept in.Impossible? Is he crazy? The US has decently broad fair use rights. Is he seriously arguing that it's "impossible to secure investment in creative goods" in the US because of our fair use policy? No serious person would ever make such an argument, which raises questions about just how serious Dr. Baker truly is.
"It has become like Swiss cheese where someone can turn up and say I'm doing research and therefore I don't have to pay you copyright. It makes it impossible to secure investment in creative goods."
As the piece concludes:
So why shouldn’t copyright be infinite?
Five years ago, Larrikin Music, who bought the rights to an old Australian folk song, sued Men At Work for including an 11-note flute sequence from it in their 80s-hit, “Down Under”. Where Men At Work had intended homage in its celebration of all things Australian, Larrikin, and the law, saw copyright infringement.
But does that really go far enough? If an 11-note sequence counts as infringement, how much do modern artists owe Pachelbel’s descendants? The four-chord sequence making up the core of his Canon in D has been repeated in dozens, if not hundreds, of subsequent songs. Should evidence produced by Australia’s Axis of Awesome be used in copyright lawsuits by anyone who can document that, ten generations back, Johann Pachelbel was a great-great-grandfather? It seems absurd.
Even from the perspective of a profit-seeking artist, copyright is a double-edged sword. Stronger copyright both increases the rewards from having produced a piece of work and increases the cost of creating new works.
Current creators draw on a global commons in their artistic creations, and future generations of artists deserve a commons tooA true expert in copyright would actually understand that simple fact.