Karl's Favorite Techdirt Posts Of The Week

from the good-news-bad-news dept

Handling the "favorites of the week" post this week is Karl, one of our prolific commenter's who's known for calmly responding to questionable claims from other commenters with thorough, detailed insights and a firm grasp of the law and case law.

When Mike asked me to do a "Favorites of the Week" post, I joked that hopefully I'll be able to do "favorite posts" and not "bad news." A lot of the breaking news this week amounted to more of the same, and all bad: more third-party liability, the government lying about Wikileaks, ICE ramping up their seizures, even libraries teaching kids to hate a free press. Stuff like this is always going on, and it can't last forever, but after a while you get too saddened to think about it.

So, in 2011's spirit of optimism, I'd like start off with artists who are doing something right.

The obvious winner is Paulo Coelho, who heard that his books were banned in Iran, so he immediately offered them as a free download. This shows us that free public use of your art does not just make your work more valuable, it is also a tool to fight censorship and is a fundamental part of free expression. It's not about creating art for free; it's about keeping it from being imprisoned.

Honorable mention goes to Jono Bacon from the band Severed Fifth, who is using an open source model to "reinvent the music business." Now, the "reinventing" claim is a steaming pile of hyperbole, but it's awesome to see more artists realize that "open culture" is not their enemy. And this band is actually practicing what they preach: their album will be released under a CC-BY-SA license, which means that anyone can make money off of it... even you, faithful reader.

And I have to mention Deadmau5, who realized that a connection with his fans is more important than management relations. But it should be noted that Deadmau5 is not any sort of copyright abolitionist. In 2008, he took legal action against a Fruity Loops user called DirtyCircuit, who (unintentionally?) used uncleared Deadmau5 samples that were bundled with the software. As a result, Fruity Loops removed all melodic samples. I mostly like the Techdirt story because it led me to YouTube videos of Deadmau5 pranking his fans on Minecraft.

Of course, for every person who is doing something right, there are two who are downright clueless. They're not bad people, mind you; they just don't know what's going on.

Such was the case when Jim D'Addario defended his support of seizing music blogs. Mike responded by focusing on counterfeit goods, but, as I pointed out in the comments, that's the least worrisome thing about the seizures. Many of the seized domains had absolutely nothing whatsoever to do with counterfeit products. This shows another bad result when you conflate counterfeiting with file sharing: companies can't object to horrible file sharing laws without undercutting their support for anti-counterfeiting efforts. Assuming they're even aware of it at all, of course. I genuinely think Jim D'Addario has no idea music blogs were seized and I'm guessing a lot of the companies on the list didn't either.

As a side note: One of the "counterfeiting sites" that Jim D'Addario mentioned is Alibaba.com. When I went to that site, I found a ton of cheap, shoddy merchandise -- most of it is crap, some of it is probably "grey market," and a couple of things might be counterfeit. But ironically, the one thing I did not find is counterfeit D'Addario guitar strings.

Of course, Jim D'Addario is far from the most clueless man in the industry. As usual, that honor goes to the heads of the RIAA, who this week claimed that a .music gTLD would "enable wide scale copyright and trademark infringement." As Marcus Carab pointed out, their attitude seems to be "ALL MUSIC = crime unless it is explicitly and completely controlled by us."

But it's even more ridiculous than that. The ability to get a .music gTLD would be available only to official members of the music community, deliberately to ward off pirates and cybersquatters. Constantine Roussos, the man behind the dotMusic campaign, is also the man behind FightPiracy.org. He's certainly no friend of piracy or enemy of the recording industry, despite the RIAA's assumptions. When it took aim at Roussos, the RIAA set its phasers to "stupid."

There's one final story that I'd like to mention, to complete this compliment sandwich. That is how ACS:Law is continuing to screw the pooch in court. There's nothing particularly surprising about this, but it makes me smile. It's like a cross between Boston Legal and the Keystone Cops. Hopefully the USCG suits in Minnesota will crash and burn too.

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  1. icon
    Karl (profile), 23 Jan 2011 @ 1:02pm

    Re: Re: Re: Re:

    Who says that mashups are illegal? As derivative works, they're still stuck in a grey area.

    Actually, that's not true. The rights to derivative works are explicitly held by the original copyright holder.

    What is a grey area is whether these could be considered fair use. But mashups or DJ sets are probably not fair use. A defense could be raised, but it would likely fail. (I don't think it should, but I'm not a Congressman or a judge.)

    ...Of course, those mashups were not posted by the sites themselves, but by users of the site, and the materials were also hosted offsite. So, the forum sites are explicitly protected by DMCA safe harbors. Assuming they complied with the "notice-and-takedown" system - and RapGodfathers, at least, claimed that it did - they should not be held liable at any level.

    That's part of what's so scary about these seizures. They effectively do away with safe harbors altogether. Congress wrote that section of Title 17 for a reason, and ICE is just ignoring it.

    These people are either guilty or not guilty. There are no shades of grey here.

    Unfortunately, that's also not true. There are a whole host of ways people can be liable for infringement: direct infringement, vicarious infringement, or contributory infringement. There is both a civil (tort) and criminal infringement. In the case of criminal infringement, there is "accomplice" liability (which is different than either contributory or vicarious infringement, as is much harder to prove).

    It is very much a grey area. And that is why we have juries. It is why a warrant is not enough for temporary seizures or preliminary injunctions, and why a trial is required for permanent seizures or injunctions.

    You're ignoring the fact that if it isn't hosted with them, it is legal.

    Again, not precisely true. They could still be guilty of contributory or vicarious infringement. Of course, neither type is criminal - they would have to be found liable after a civil trial.

    And as I said, if they complied with the notice-and-takedown system, they're guilty of nothing.

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