There Can Be No 'Balance' In The Entirely Unbalanced System Of Copyright

from the find-something-better dept

For many years now, I've argued against the idea of calling for "balance" in copyright law -- because I don't think it makes much sense. In articles from 2007, 2009 and 2011, I argued that by focusing on "balance" -- as many critics of copyright law do today -- we make a huge mistake. Arguing for balance is setting up the system as a zero-sum game where each trade-off involves a winner and a loser. But history has shown that not to be the case. It is not a zero sum game, and things that might make one side think they're "losing" might actually make them better off (take the VCR for example -- which the movie industry insisted was a horrible abuse of copyright law... until it became the key reason why the industry thrived).

Now, following the postponement of the Africa IP Forum, which came about, in large part, due to civil society groups arguing that the event wasn't "balanced" enough, lawyer Alan Story has put together an altogether brilliant condemnation of the talk of "balance" in copyright law, arguing that it is impossible to balance a fundamentally unbalanced system. Much of his attack isn't necessarily on the concept of copyright law itself, but on the nature of the Berne Convention, on which (tragically) much of modern copyright law is based. There's so much in Story's writeup that is worth reading that I recommend you go check out the whole thing, but here are just a few snippets and some commentary.
Every one of the central principles or elements of copyright is one-sided and unbalanced, that is, they favour the owners of copyrighted goods..... The main elements of copyright include the ideology that the world’s knowledge and creations should be owned as private property, that they should be traded as commodities in global capitalist markets, that copyright owners should have exclusive rights, that fair dealing /fair use principles mean what is fair to owners, that creativity will dry up without the incentive of copyright, that there are no alternatives to copyright, that spreading copyright regimes (and the stricter the better) benefits the whole world, and a few other foundational principles and justifications of this Western legal and philosophical export to the global South. Take away these principles and you know longer have copyright. Conversely, accept these principles and you have accepted 98% of the story that WIPO and the US Department of Commerce will be disseminating in Cape Town when their re-scheduled IP summit is held. All that is required, they suggest, is some fine-tuning, a bit of ‘tweaking’ around the edges of the remaining 2%.
Story argues that the entire system is based around giving a ton of power and control to the copyright holder (who, he notes repeatedly, is very rarely the content creator). A system "balanced" between the rights of "users" and "creators" would actually contain, you know, some rights for users:
If you have an hour or two in the next few days, read through Berne, clause by clause, and keep a running tally of: a) how many rights are guaranteed and mandatory to the users of copyright in every Berne Convention country? ; b) how many rights are guaranteed to the owners of copyright? The answer to question a) is very brief. Other than what is included in Article 10 (1) of Berne, namely, the right to use quotations already available to the public, there is not a single mandatory right that all users in the world possess, and even this narrow right is qualified. This is another reason why some of us believe that not only is the international copyright system grossly unbalanced, but it is also unbalanceable.
He also hits on a key point that many have talked about in regards to the fact that nearly all creativity builds on the works of others. That's a recognition that users are creators so separating out "rights of users" vs "rights of creators" ignores the reality that nearly everyone falls into both camps:
To pit the interests and rights of users against those of authors (again used as a term to designate all creators, whether composers, sculptors, or video game developers) is also a serious mistake. It is based on binary formulation which suggests that users of copyrighted materials are not also creators and that creators of copyright materials are not also users. To return to the same sentence quoted in point 3) above, where else do creators get the requisite tools for their work other than from ‘education, research and access to information’?
Story also points out a specific problem under Berne, in that beyond the fact that it doesn't actually establish any real rights for users -- just for copyright holders -- it makes the system even worse (significantly worse) by merely setting "minimums," with mandatory floors. That means that copyright generally can only be ratcheted up, not down.
The question of duration of copyright provides us with one easily-grasped example. The Berne Convention states that member countries must, at a minimum, establish a copyright term of life of the author, plus a minimum of another 50 years. As is sometimes not appreciated, this already is a very long period of time; it means that a pop song written this year by a 25-year-old songwriter could still be restricted by copyright in the year 2112. Yet it is perfectly legal for a country to extend its copyright term to life of the author, plus 100 years, which would restrict the same song until 2152. This is what Mexico has done. Or the copyright term could be raised until it was forever, minus one day. Consider what would have been situation if Egyptian government had gone ahead with its announced plan of 2008 to use copyright law to protect its pyramids as cultural property. The Egyptian term of copyright would then have become life of the author, plus 5000 years. Absurd? Yes. Perfectly legal, however, under the Berne Convention. Conversely, if a country decided to reduce its term to simply life of the author, which would still often leave a term of 30 to 40 years or even longer, such a law could result in that country being expelled from the Berne Union as well as the World Trade Organisation. Moreover, copyright owners might complain future years of royalty payments had been lost due to term reduction and claim their private property had been taken without compensation. Such a circumstance shows the impossibility of balance.
You can't have "balance" when the entire system is set up strongly to benefit one particular group. And the thing is, that "group" is rarely actually the creators. Again, Story provides some details:
As for the supposed rights which the copyright system gives to musicians in disputes with recording companies, consider what happened to two leading musicians of the past century. If, as already mentioned, Bob Marley (1945-1981), called the ‘Third World’s first pop superstar’ (Wenner), was unable to hold onto the copyright to many of his best known songs, what chance does the so-called average musician have? Or how about what happened to the path-breaking US bebop jazz pianist Thelonius Monk (1917-1982) who signed a long-term recording in 1962 with Columbia Records, a major recording label at the time. When the contract was over in 1970, Monk amazingly owed Columbia more than US$100,000. Copyright did not help Monk much.
There's a lot more in the article and, if you haven't done so already, I really encourage you to read the whole thing. Story is arguing something slightly different than my argument against balance, but the two arguments are related. My argument is that balance only belongs in a system where you have a zero-sum game and giving one side something automatically means another side gets less. If you have a non-zero sum game, then the goal should never be about finding the balance, but about finding the "maxima" -- the point on the curve that provides the most benefits. If you actually believe the (US-defined) purpose of copyright law to be to "promote the progress" then it seems that should be the goal.

However, what Story is arguing is that the entire system of copyright was never set up to be a balance at all, but rather as a system to grant powers to copyright holders against everyone else -- and that the Berne Convention, in particular, is particularly nefarious in how this is set up. I don't think our arguments contradict each other, but are merely just two different ways of noting that copyright law today is not about balance at all, and focusing on balance is a mistake, and doesn't really help the situation. Like Story, I'd urge even those pushing for copyright reform to avoid the use of "balance" in discussing copyright law, because you're already playing into the wrong framework.


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  1.  
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    :Lobo Santo (profile), Mar 1st, 2012 @ 11:52am

    ...

    20 minutes and no comment?

    Is that a record?

     

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  2.  
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    Mitchell Featherston, Mar 1st, 2012 @ 12:02pm

    Terrible

    By not being able to REDUCE the duration of copyright, it basically makes this entire situation one sided. Of course, that's what Hollywood and the other proponents of PERPETUAL copyright terms want.

    You have to wonder, how did it get to this point? Sickening.

     

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  3.  
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    Anonymous Coward, Mar 1st, 2012 @ 12:04pm

    Re: Terrible

    Yeah, that's why you freetards illegally steal everything that's not older than five minutes, oh wait!

     

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  4.  
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    MrWilson, Mar 1st, 2012 @ 12:10pm

    Re: ...

    Yeah, I kept refreshing, waiting for the AC trolls to make asinine comments since this is a great topic for one of their rants.

    Where's OOTB when you /need/ him?

     

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  5.  
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    Tim K (profile), Mar 1st, 2012 @ 12:12pm

    Re: Re: Terrible

    Is there a way to legally steal?

     

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  6.  
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    MrWilson, Mar 1st, 2012 @ 12:13pm

    Re: Re: Terrible

    Aside from the fact that copyright violations aren't stealing, why would you use the phrase, "illegally steal?" In what instances is theft not illegal? Oh, right. It's when corporations legally steal copyrights from the public domain with the illegal bribery of legislators...

    People might respect copyright laws if copyright laws respected the people.

     

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  7.  
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    Anonymous Coward, Mar 1st, 2012 @ 12:14pm

    Re: Re: Terrible

    Hey! We illegally steal everything older than five minutes too you ageist.

     

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  8.  
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    :Lobo Santo (profile), Mar 1st, 2012 @ 12:15pm

    Re: Re: Re: Terrible

    Taxes, Fines, Levies, Fees, Surcharges, Penalty Fees, and taxes.

     

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  9.  
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    Tim K (profile), Mar 1st, 2012 @ 12:15pm

    Re: Re: Re: Terrible

    Oh right, legally steal, the *AA's form of innovation

     

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  10.  
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    Anonymous Coward, Mar 1st, 2012 @ 12:16pm

    Re: Re: Re: Terrible

    You're right. I mean, you can't have art without an audience so it does seem kind of counterproductive to pit artists against their audience. I don't see how that really solves any of the problems that content owners are experiencing, if one could really call them problems to begin with.

     

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  11.  
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    Tim K (profile), Mar 1st, 2012 @ 12:17pm

    Re: Re: Re: Re: Terrible

    True, but I meant for all us freetards, how do we legally steal?

     

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  12.  
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    :Lobo Santo (profile), Mar 1st, 2012 @ 12:17pm

    Re: Re: Re: Re: Re: Terrible

    ...get a position in the government?

     

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  13.  
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    Tom Barger, Mar 1st, 2012 @ 12:18pm

    Balance

    I have learned to put an asterisk against this word balance. William patry's book has quite a discussion, and he inveighs against the concept. In a nutshell, Patry says...balance is a word that depends on where you stand. A dispassionate observer would ask for empirical evidence and economic studies before pushing more legislation.

     

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  14.  
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    Anonymous Coward, Mar 1st, 2012 @ 12:25pm

    Yeah, the system is entirely unbalanced. People who MAKE things have rights, and people who want to take things don't.

    Seems about right.

     

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  15.  
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    Tim K (profile), Mar 1st, 2012 @ 12:31pm

    Re:

    And shills still can't read...
    ton of power and control to the copyright holder (who, he notes repeatedly, is very rarely the content creator).

     

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  16.  
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    Anonymous Coward, Mar 1st, 2012 @ 12:32pm

    Re:

    I don't want to take them, I want to share them. What then?

     

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  17.  
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    Anonymous Coward, Mar 1st, 2012 @ 12:36pm

    Re: Re:

    Tim, don't turn into Marcus. Stay focused now. The people who make things have the rights, and that INCLUDES the right to sell those rights to other people.

    Copyright holders (those who pay the people who make things) are an integral part of why the copyright system works for creators, allowing them to sell their "products" in a system that can help define value in that product. If there was no copyright, the guy making it could sell it all to one guy today, and another guy tomorrow, without any come back.

    So perhaps you could get a little more understanding of the topic, and then you would understand why the "who, he notes repeatedly, is very rarely the content creator" comment is a red herring, a misleading way of trying to create anger towards everyone involved in the copyright world.

     

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  18.  
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    The Logician (profile), Mar 1st, 2012 @ 12:44pm

    Re: Re: Re:

    I do not agree, AC 17. As has been pointed out in the main post, content creators and content users are often one and the same. Also, content owners are rarely the creators, at least within the legacy media industries. You appear more concerned with the perpetual enrichment of middlemen than the societal benefit of more open access to culture.

     

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  19.  
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    Anonymous Coward, Mar 1st, 2012 @ 12:44pm

    There can be no balance in the entirely unbalanced system of piracy.

     

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  20.  
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    Anonymous Coward, Mar 1st, 2012 @ 12:51pm

    Re: Re: Re: Terrible

    Yes there is.
    It is called copyrights.

     

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  21.  
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    Steve R. (profile), Mar 1st, 2012 @ 12:54pm

    Fair and Balanced - Just Kidding

    Following the temporary demise of SOPA/PIPA Fox News had a three person panel of so-called pundits discussing so-called "intellectual property". The sound bytes consisted of the liberal use of the words: "theft", "piracy", "creator rights", and on. It ended with a lament calling for "compromise". Exactly how do you compromise with a special interest group that perpetually seeks to eliminate your rights and to extend the duration/scope of so-called intellectual property. You can't.

    But the significant issue, to the casual viewer who is not familiar with this ongoing "land grab"; the Fox News panel discussion may actually seem reasonable. That is a sad reality.

     

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  22.  
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    James Love (profile), Mar 1st, 2012 @ 12:54pm

    Substance and language

    Alan Story makes many good points in this IP-Watch article, including the way he questions the fundamental purpose and consequences of existing copyright laws. I'm not sure, however, that the term "balance" is something to be consistently avoided in policy debates. There are real tensions between the interests of producers of knowledge goods and the users of those goods, and while no single term seems to provide the right context or message for every instance, terms like fairness or balance sometimes fit.

     

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  23.  
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    Anonymous Coward, Mar 1st, 2012 @ 12:56pm

    How about ditching the Berne Convention entirely and rely solely on contract law? The challenge would more than likely be the bargaining power of the dominant player (rightsholder). But surely there can be a solution to that and much better than having Government and big media companies and lobbyists push for such agreements such as ACTA? International agreements are not meant for the weaker party. The standards set are way to 'high' for a country that cannot even feed its people, to meet. We will argue till we turn blue or green in the face and the only change we will see will be in 'stronger' more 'behind the iron curtain' type rule of law. And forget the multilateral system run by individuals that have only their self interests and preservation at heart. If you want to make a dent in the system, do it on the streets, not in IGO forums, Parliaments, etc.

     

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  24.  
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    Anonymous Coward, Mar 1st, 2012 @ 12:59pm

    Re: Re: Re:

    Quote:
    If there was no copyright, the guy making it could sell it all to one guy today, and another guy tomorrow, without any come back.


    And that is bad why?
    I thought that the intuit of selling something is to maximize sales, that means to me at least selling to everyone you can, why would you try to limit your own sales to only one person?

    Quote:
    So perhaps you could get a little more understanding of the topic, and then you would understand why the "who, he notes repeatedly, is very rarely the content creator" comment is a red herring, a misleading way of trying to create anger towards everyone involved in the copyright world.

    Please shine some of your light of wisdom on everyone else and explain why transferring monopoly rights to who can pay more is a good thing?

    We all know what it happens, it either ends with contracts forcing the schmuck creating something to transfer the rights to others or it is bought and put in a ever growing pool of exclusion never to be heard off again.

    I mean the guy receiving the benefits from Dick Tracy, Ghostrider and others are not the creators are they?

     

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  25.  
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    Anonymous Coward, Mar 1st, 2012 @ 1:00pm

    Re:

    Open source says you are wrong.

     

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  26.  
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    Steve, Mar 1st, 2012 @ 1:08pm

    People who make things

    The people who make things have no rights. It's the people who own things who have the rights. US law copyrights are good 90 years after the death of the creator..

     

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    fairusefriendly (profile), Mar 1st, 2012 @ 1:12pm

    not really

    There is a simple way to balance the copyright law

    Make the penalty for violating fair use to be as serious as violating a copyright.

    if fair use companies like the vcr had a right to sue for statutory damages of 25k when copyright holders come up with solutions that also violate fair use rights. Then they would be less likely to propose draconian solutions that are actually balanced in the first place.

    If the act of extending the penalties for abusing copyright automatically increase the liability of false or bogus complaint They would be less likely to propose changes that are abusive.

     

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  28.  
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    The eejit (profile), Mar 1st, 2012 @ 1:12pm

    Re: Re: Terrible

    All creation is derivative, even the Universe. It's a sceintific theory and everything.

     

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  29.  
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    Anonymous Coward, Mar 1st, 2012 @ 1:13pm

    Life is not fair. Since Roman times, Justitia has frequently been depicted carrying scales and a sword, and wearing a blindfold. In modern times she is seen mistakenly holding the scales of justice level, i.e. balanced. There is no such thing as balance in the rule of law. Why would we also depict justice blindfolded and with a sword? Copyright law, as Prof. Story correctly points out is unbalanceable.

     

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  30.  
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    Steve, Mar 1st, 2012 @ 1:14pm

    Copyrights vs patent rights

    US copyrights now last 90 years after the death of the creator of the work. The constitution says copyrights should be good for a "finite amount of time". Of course 10,000 years would also be finite. If patents followed the the same rules then the patent on the light blub would still be in effect as Edison died in 1931. If copyright were limited to 20 years this would be a different world and you could just download The Godfather...

     

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  31.  
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    Anonymous Coward, Mar 1st, 2012 @ 1:15pm

    Re: not really

    +1 Internets to you Sir

     

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  32.  
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    Anonymous Coward, Mar 1st, 2012 @ 1:15pm

    Re: Re: Re: Re:

    Not at all, you fail all down the line (and fail at logic too).

    Content creators are a subset of content users, only because we are all using content in our lives, from radio and TV to movies, DVDs, and even the software we are using right now to have this friendly chat. However, content creators are not a majority subset, just a small part of the deal. Even with all the online freedom, most people never create much more than a few posts on an abandoned wordpress blog.

    The content owners are often not the creators, but what is key is that they have paid the content creators (or pay on an ongoing basis) the content creators, freeing them up to do more of what they do best, creating content.

    Using the term "middlemen" is an attempted slam, an illogical ploy to try to get a sympathetic reading of your view. It doesn't pan out, but it's really amusing.

     

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  33.  
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    Anonymous Coward, Mar 1st, 2012 @ 1:18pm

    Re: People who make things

    Steve, don't turn into Tim K! Pay attention now.

    The people who make things have the rights. Those rights include the ability to re-assign those rights to others, in whole or in part. Those rights (just like other ownership rights) can be sold, can be transferred, and yes, can be inherited.

    It doesn't take away from the initial truth, that the people who create things have the rights. What they do with those rights and their products are up to them, and nobody else.

     

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  34.  
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    Richard (profile), Mar 1st, 2012 @ 1:21pm

    Re: Re: Re:

    So perhaps you could get a little more understanding of the topic, and then you would understand why the "who, he notes repeatedly, is very rarely the content creator" comment is a red herring, a misleading way of trying to create anger towards everyone involved in the copyright world.

    Very far from being a red herring. Copyright was created by middlemen for middlemen. In its first incarnation the original author did not even get the copyright at the start. The holding of copyrights was reserved to members of the stationers' company.

    The initial copyright belonging to the author was a concession made in the knowledge that the balance of power would mean that very few of them would ever be able to take proper advantage of it.

    It sounded good (still does - which is why you and your ilk keep parroting it) but it was always a fraud.

    If there was no copyright we could move to crowdsourced upfront funding followed by free release.

    The enormous costs of copyright enforcement would be unnecessary and everyone apart from a small group (who are little better than organised crime bosses) would be better off.

     

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  35.  
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    Anonymous Coward, Mar 1st, 2012 @ 1:23pm

    Re: Re: People who make things

    The audience also has rights too though, something that seems to have been forgotten in these past 30 years of copyright expansion.

     

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  36.  
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    Chosen Reject (profile), Mar 1st, 2012 @ 1:24pm

    Re:

    That's right. If we get rid of copyright law, then there will be no piracy. It's a win-win. Pirates get what they want (no copyright law) and copyright maximalists get what they want (no piracy). See, Mike was wrong, there can be balance, and I wholeheartedly advocate for this approach.

     

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  37.  
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    bob, Mar 1st, 2012 @ 1:26pm

    Uh no-- balance is possible and desirable

    Well, well, well. For years you've saying that you support copyright in theory, you just don't support any particular kind of punishment. Now you're pretty much saying that you can't imagine any kind of right because giving something to the creators hurts the non-creators.

    Before going much further, let me debunk your dumb VCR point. Video cassettes worked because (1) the studios used copy protection and (2) the police tracked down and punished pirates. The success with the VCR didn't prove that copyright is foolish and the studios didn't know what is going on. If anything, the studios proved that with the right DRM, the technology can work. And I might note that none of the budding home video makers were hurt by this compromise technology.

    Why do I say this? Because copyright can be balanced. We can have portable video cameras and a successful studio system. People can create and studios can sell and both can co-exist.

    Through this all, you continue to believe that copyright is something that only helps the big studios. Nothing could be further from the truth. There are billions of digital cameras out there and every single user is creating copyrighted material. More important, I'm sure that all but the most Stallman-esque are happy that copyright leaves them in control of the images. They like having the choice whether they keep control of the image or release them with a CC license. Copyright empowers the little guy.

    You forget that the little guy has no power in the world without copyright-- something that the Big Search astroturfers love to imagine. Without copyright, a big corporation can take any image on the net and use it for their ad without paying the person for it at all. After all, they're just remixing reality and riffing. Isn't that cool?

    Don't be such a creator hater. The CC licenses are a great compromise. People can use them if they like. They let people participate in your wild and crazy P2P utopia. If it's really as wonderful as you say, we'll see it win on its own accord.

    But I don't see that happening. I don't see the blockbuster films or even the small films being released with cool CC licenses. Nope. Folks like Louis CK are going right to the paywall because they intuitively understand how the world works.

    Repeat after me: copyright helps the little guy. Copyright empowers the creator. Copyright hurts the leeches, the couch potatoes and the losers who contribute nothing and want everything to be given to them.

     

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  38.  
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    Richard (profile), Mar 1st, 2012 @ 1:32pm

    Re: Re: People who make things

    The people who make things have the rights.

    God has all the rights then since only he made things from nothing - everyone else is just making derivative works - and here's the rub - God's creation came on a share alike licence - "freely you have received, freely give" (Matthew 10 :8). So people who (re-)make things don't actually have those rights.


    Those rights include the ability to re-assign those rights to others, in whole or in part.

    Which is quite similar to the right to sell yourself into slavery - we took that right away and it was a good thing.

     

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  39.  
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    fairusefriendly (profile), Mar 1st, 2012 @ 2:28pm

    Re: Uh no-- balance is possible and desirable

    you might want to read the mpaa testimony to congress after the supreme court validate timeshifting as a fair use.


    Now, here is the next one: 87 percent, 86.8 percent of all these owners erase or skip commercials. I have here, Mr. Chairman, if you are not aware of how this works -- this is Panasonic. This is a little remote control device that you use on machines. It has on here channel, rewind, stop, fast forward, pause, fast advance, slow, up, down, and visual search, either going left or right.

    Now, let me tell you what Sony says about this thing. These are not my words. They are right straight from McCann Erickson, whom you will hear from tomorrow, who is the advertising agency for Sony and here is what they say. They advertise a variable beta scan feature that lets you adjust the speed at which you can view the tape from 5 times up to 20 times the normal speed.

    Now, what does that mean, Mr. Chairman? It means that when you are playing back a recording, which you made 2 days or whenever -- you are playing it back. You are sitting in your home in your easy chair and here comes the commercial and it is right in the middle of a Clint Eastwood film and you don't want to be interrupted. So, what do you do? You pop this beta scan and a 1-minute commercial disappears in 2 seconds.

    Mr. RAILSBACK. Is that all bad?

    Mr. VALENTI. If you are watching a Clint Eastwood film it is the most cheerful thing you can do. However, if you are an advertiser who has paid $280,000 a minute to advertise, he feels a very large pain in his stomach as well as in his checkbook because it destroys the reason for free television, the erasure, the blotting out, the fast forwarding, the visual searching, the variable beta scans. the technology is there and I am one who has a belief that before the next few years the Japanese will have built into their machines an automatic situation that kills the commercial.

    Being advertised today in all the video magazines, and if any of you take video magazines, here is a marvelous little device called the Killer. It eliminates those black and white commercials. You put the Killer onto your Sony and it automatically takes out the commercial. You don't like the Killer, try the editor. The editor will do the same thing. It will wipe out commercials.

    The technology is there in my judgment, in the next several years, where an integral part of the machine will be automatic Killer. But you don't need that now as long as you have this. Indeed, when my son is taping for his permanent collection, he sits there and pauses his machine and when he is finished with it, he has a marvelous Clint Eastwood movie and there is no sign of a commercial. It is a brand new movie and he can put three of those on one 6-hour tape.

     

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  40.  
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    Anonymous Coward, Mar 1st, 2012 @ 2:36pm

    Re: Uh no-- balance is possible and desirable

    "deo cassettes worked because (1) the studios used copy protection"

    You mean the pulled the little tab off the tape that didn't let you record over it? If your copy protection can be broken with a tiny piece of electrical tape its not really protection is it? It was more a feature to prevent people from accidentally taping over something than a means to prevent people from copying.

     

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  41.  
    identicon
    Anonymous Coward, Mar 1st, 2012 @ 2:44pm

    Re: Uh no-- balance is possible and desirable

    " Without copyright, a big corporation can take any image on the net and use it for their ad without paying the person for it at all."

    They already do this. They just say oops it was a mistake when they get caught. Then they line up their team of 100 lawyers and say "come at me bro!"

    "Folks like Louis CK are going right to the paywall"
    HAHAHAHAHAHAHAHAHAHAHA

    "Copyright hurts the leeches"
    What do you mean? The studios seem to be fine.

    "copyright helps the little guy"
    It would if people were not constantly forced to sell their copyright to the company they work for or to a record company in exchange for 100k upfront.

    You think that's fair Bob? Disney gets Mickey not the creator because they paid him 40k a year for awhile then fired him and now get Mickey and all associated cash for life?

    You think its fair that 15 years ago before distribution was something you could do from home musicians had the choice to turn over their copyright or no one would ever hear their music? You bullshit doesn't pass the laugh test buddy.

    Its not that creator's shouldn't get an exclusive right to sell for a limited time. Its that the system is rigged Bob. You want your movie in theaters you have to go through a studio and to go through a studio you have to give up your copyright. You want to make a physical CD and have it sold all over the country, then you have to go through the labels and to go through the labels you have to give them your copyright. Maybe in your fantasy world copyright helps the little guy but in the real world its a tool for the big dogs to suck every dollar out of something they bought for pennies for the rest of eternity.

     

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  42.  
    icon
    Richard (profile), Mar 1st, 2012 @ 2:47pm

    Re: Re: Re: Re: Re:

    Even with all the online freedom, most people never create much more than a few posts on an abandoned wordpress blog.

    Actually most people derive the majority of their entertainment from their own social interactions - in other words ephemeral "content" created between friends. It is far more important to most than any content that enters the monetary economy.

    Your attitude to the public is most revealing.

     

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  43.  
    icon
    Josh in CharlotteNC (profile), Mar 1st, 2012 @ 2:47pm

    Re: Re: Re: Re: Re:

    but what is key is that they have paid the content creators (or pay on an ongoing basis) the content creators,

    Why do so many artists end up owing copyright owners if they are being paid?

     

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  44.  
    icon
    Josh in CharlotteNC (profile), Mar 1st, 2012 @ 2:49pm

    Re: Re:

    The AC you replied to never learned to share. I'm not even sure he knows what sharing actually means.

     

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  45.  
    icon
    Josh in CharlotteNC (profile), Mar 1st, 2012 @ 2:53pm

    Re: Uh no-- balance is possible and desirable

    Repeat after me: copyright helps the little guy. Copyright empowers the creator. Copyright hurts the leeches, the couch potatoes and the losers who contribute nothing and want everything to be given to them.

    This may be the funniest statement made on Techdirt, ever.

    Sorry Marcus. Sorry Tim. Sorry other Tim. But it is definitely in the running.

     

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  46.  
    icon
    Suja (profile), Mar 1st, 2012 @ 3:18pm

    Re: Uh no-- balance is possible and desirable

    Repeat after me: copyright helps the little guy. Copyright empowers the creator. Copyright hurts the leeches, the couch potatoes and the losers who contribute nothing and want everything to be given to them.

    Repeat after me: a good worker is a live worker, free to live... and work... a bad worker is a dead worker, and vice versa... don't be a bad worker. bad workers are slaves, and dead. payday for good workers has been postponed indefinitely, payday for bad workers is CANCELLED

     

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  47.  
    icon
    Suja (profile), Mar 1st, 2012 @ 3:22pm

    Re: Re: Uh no-- balance is possible and desirable

    Sorry, just had to implement the "worker brainwash" mantra since it was so appropriate... On to the real stuff

    1. Censoright helps control the little guy

    2. Censoright empowers whoever owns it

    3. Censoright feeds the leeches, the couch potatoes and the losers who contribute nothing and want everything to be given to them(MAFIAA)


    There! That sounds much more accurate.

     

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  48.  
    identicon
    RD, Mar 1st, 2012 @ 3:33pm

    Re: Uh no-- balance is possible and desirable

    "Before going much further, let me debunk your dumb VCR point. Video cassettes worked because (1) the studios used copy protection and (2) the police tracked down and punished pirates."

    Are you serious? You can't actually believe this. Video cassettes worked because they provided the customer with content that THEY WANTED. It made rentals possible, and THAT is why home video took off. #2 is absurd on its face, the success of VHS/cassettes had absolutely ZERO to do with enforcement. Period. Anyone claiming differently is selling you something.

    "The success with the VCR didn't prove that copyright is foolish and the studios didn't know what is going on. If anything, the studios proved that with the right DRM, the technology can work. And I might note that none of the budding home video makers were hurt by this compromise technology."

    You mean like the DRM that has been defeated and has made zero impediment to copying on, well, EVERYTHING? That you can claim this with a straight face, and then try to use it as your "gotcha!" argument to defeat all others, shows how clueless, out of touch, and bought and paid for shill that you really are. NO ONE with an ounce of brains or even a PASSING familiarity with the topic would by such a load of tripe.

     

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  49.  
    icon
    Richard (profile), Mar 1st, 2012 @ 3:37pm

    Re: Uh no-- balance is possible and desirable

    Repeat after me:...

    So your main argument is to simply repeat your mantra in the hope that people will start believing it - well it won't work around here.

     

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  50.  
    identicon
    M, Mar 1st, 2012 @ 4:32pm

    You can't comprimise with copyright law

    Technology has created a situation where the the sum of human knowledge and culture can be made available to anyone in the world. It's like giving everyone in the world access to a more than Library of Congress worth of knowledge and culture. You can hold and access huge body of knowledge and culture in using very small devices that you can hold in your pocket.

    This is something that even if you were the richest man in the world 20 years ago, it wasn't possible. But today it is possible even for the poorest people in the world. This information age is a huge step forward for humanity.

    We can provide this today. The technology exists. The only thing that stops this from happening is a law that was conceived when the printing press was the most efficient method of copying. This law is copyright law.

    There is no comprising with copyright law. It is fundamentally incompatible with this vision.

     

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  51.  
    identicon
    Hothmonster, Mar 1st, 2012 @ 4:35pm

    Re: Re: Uh no-- balance is possible and desirable

    He might have better luck if he put sit behind a paywall.

     

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  52.  
    icon
    John Fenderson (profile), Mar 1st, 2012 @ 4:59pm

    Re: Re: Uh no-- balance is possible and desirable

    He's referring to Macrovision, I think. Although it's true that Macrovision was only slightly more effective than removing that little plastic tab.

    However, when the studios freaked out about the VCR, there were no commercial, DRM'd videotapes on the market. The studios were worried about people videotaping movies over TV, which was DRM-free.

    Bob is a little confused about all this.

     

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  53.  
    icon
    Mike Masnick (profile), Mar 1st, 2012 @ 6:17pm

    Re: Uh no-- balance is possible and desirable

    Well, well, well. For years you've saying that you support copyright in theory, you just don't support any particular kind of punishment. Now you're pretty much saying that you can't imagine any kind of right because giving something to the creators hurts the non-creators.

    You really ought to learn how to read. It'll make you look less clueless when you spout something moronic like you did here.

     

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  54.  
    identicon
    Anonymous Coward, Mar 1st, 2012 @ 7:49pm

    Re: Re: Terrible

    Yes, that is a good example of a straw man. What will you be demonstrating next?

     

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  55.  
    identicon
    Anonymous Coward, Mar 1st, 2012 @ 7:54pm

    Re: Re: Re: Re: Re:

    "The content owners are often not the creators, but what is key is that they have paid the content creators (or pay on an ongoing basis) the content creators, freeing them up to do more of what they do best, creating content."

    Tell that to Jerry Siegel and Joe Shuster.

     

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  56.  
    icon
    Greevar (profile), Mar 1st, 2012 @ 8:45pm

    Re: Substance and language

    I know a way to balance it. Get rid of copyright entirely. Then content creators will have no choice but to use a business model that fits what they really sell (their skill and time) and everybody can have free access to art and knowledge for the enrichment of society. Content should be free, but not the labor it takes to create it.

    Richard said: "If there was no copyright we could move to crowdsourced upfront funding followed by free release."

    That's how it should be done. This way guarantees that authors and artists get paid for the work they do because they only do work they're paid to do. If people don't pay, they don't work. Simple. If people want content made, they need to pay those that have the skill to make it. Nobody can "steal" anything from authors and nobody can lock up culture to hold for ransom.

     

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  57.  
    identicon
    Anonymous Coward, Mar 1st, 2012 @ 9:16pm

    Re: Re: Re: Re: Re: Re:

    It's calling a tail a leg and trying to walk on it. Calling social interactions "content" is pretty darn misleading.

    Does that mean that, 30 years ago I didn't have a conversation with someone, I had a "content" with them?

    What you are pointing to isn't capital c Content, it's just the small c content of life, like the contents of a paper bag used to carry home your groceries. It isn't unimportant, but I wouldn't confuse the paper bag for a movie or a good book.

     

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  58.  
    identicon
    Anonymous Coward, Mar 1st, 2012 @ 9:19pm

    Re: Re: Re: Re: Re: Re:

    Actually, it's very few - and they don't end up owing because of their work, but rather because it wasn't well received by the public.

     

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  59.  
    icon
    Jay (profile), Mar 1st, 2012 @ 10:35pm

    Re: Re: Re: Re: Re: Re: Re:

    So Lady Gaga went bankrupt because she wasn't popular?

    Eminem is losing money from his lawsuit because of piracy, not shady record deals? DJ Danger Mouse lost money by creating remixes?

    I mean, really? Your argument is that these artists haven't recouped because they aren't popular?

     

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  60.  
    icon
    The eejit (profile), Mar 2nd, 2012 @ 1:53am

    Re: Re: Re: Terrible

    How to build straw men out of shiny disks?

     

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  61.  
    icon
    The eejit (profile), Mar 2nd, 2012 @ 1:55am

    Re: Re: Re: Re: Re: Re: Re:

    Then what about KiD KuDI, who's just had a bitching session at hyis label because he went outside hic comfort zone and experimented with his sound? And who wasn't supported because "it might not be a megahit"?

     

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  62.  
    identicon
    Anonymous Coward, Mar 2nd, 2012 @ 2:41am

    Re:

    How about ditching the Berne Convention entirely and rely solely on contract law?

    As much as I'd like to pull out of that outrageous life plus 50 minimum set by Berne, I doubt that the people in charge would be willing to lose international face like that.

     

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  63.  
    identicon
    Anonymous Coward, Mar 2nd, 2012 @ 2:47am

    Re: Re: Re: Uh no-- balance is possible and desirable

    And we're forgetting that there can't even be any DRM on analog videotapes.

     

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  64.  
    identicon
    balaknair, Mar 2nd, 2012 @ 3:46am

    Re: Re: Re: Terrible

    Legally steal = copyright term extension
    Where the copyright mafia steal from the public domain using the law

     

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  65.  
    identicon
    darryl, Mar 2nd, 2012 @ 4:50am

    Nash Bargaining problem

    if you just had copyright for the life span of the creator, then in some cases, it would be financially viable to kill that person, to free the copyright. (financially viable, illegal but to make a gain, worth it).

    With the extra 50 years, that stops that possibility.

    what is all this argument about 'balance' ??? it's unbalanced, so it everything in life.

    Because I own a car, does not mean you have a right to use it, because of "balance".

    It's balanced towards the creators (authors), rightly so, because they are the ones who took the effort to create it, without their work, 'it' would not exist.

    Just because something does exist, does not mean you have a right to own it.

    all your whining about copyright and "users rights" to copyrighted material, is only going to harden the resolve of the law makers to ensure the creators rights are protected. You will get your reform, but it will NOT be in the direction you propose.

    That would be quite clear to anyone, who reads, and follows these issues. (therefore should be clear to Masnick !!!)..


    go back to your economics books and study the "Nash bargaining problem", study it again.. when you understand it, you may have a better understanding of why your calls for reform is "Pareto-inefficient, and will result in your 'losing' the game. (ie, not getting what you want, or even close to what you want).

    It's not nothing to do with balance, or zero-sum game (or gain).

     

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  66.  
    identicon
    Anonymous Coward, Mar 2nd, 2012 @ 6:19am

    Re: Nash Bargaining problem

    "it would be financially viable to kill that person, to free the copyright. (financially viable, illegal but to make a gain, worth it)"

    Thats all I need to know about you darryl. You would kill someone if it would make you a profit, so really idc what else you have to say.

    Also I think your spacebar is broken.

     

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  67.  
    identicon
    Anonymous Coward, Mar 2nd, 2012 @ 7:21am

    Re: Re:

    The pirates don't get anything then because no big production movies would be made. There wouldn't be anything worth viewing.

     

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  68.  
    icon
    Jay (profile), Mar 2nd, 2012 @ 7:34am

    Re: Re: Re:

    The creation of new content every second disagrees with you.

     

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  69.  
    icon
    John Fenderson (profile), Mar 2nd, 2012 @ 9:32am

    Re: Re: Re: Re: Uh no-- balance is possible and desirable

    Well, it's more copy protection than full-on DRM, but Macrovision that I discussed above was originally for analog videotapes. It worked by messing with the vertical blanking interval in such a way that TVs didn't care, but when VCRs got it on their inputs, would go wild and make the recorded video very distorted.

    AFAIK, Macrovision was the very first real copy protection. It is cheap and easy to fix the signal, though, and also was the first real copy protection that was quickly cracked.

     

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  70.  
    icon
    John Fenderson (profile), Mar 2nd, 2012 @ 9:40am

    Re: Re: Re: Re: Re: Uh no-- balance is possible and desirable

    BTW, Macrovision still exists and is present on most video recordings, even DVDs. It's just less relevant than ever, most people don't notice it exists anymore.

     

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  71.  
    icon
    Not an Electronic Rodent (profile), Mar 2nd, 2012 @ 9:59am

    Re: Re: Re: Re: Terrible

    How to build straw men out of shiny disks?

    Would that be a Discman? Or is that still (TM) Sony? :-)

     

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  72.  
    icon
    Not an Electronic Rodent (profile), Mar 2nd, 2012 @ 10:08am

    Re: Re: Re: Re: Re: Re: Re:

    It's calling a tail a leg and trying to walk on it. Calling social interactions "content" is pretty darn misleading.

    No, he's calling music, cinema, art, sculpture, etc social interaction, which is exactly what it is. It only becomes "content" because of the completely artifical construct of copyright.
    Your attitude to the public is most revealing.

    I'd have gone with "elitist and entitled" but close enough.

     

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  73.  
    icon
    Not an Electronic Rodent (profile), Mar 2nd, 2012 @ 10:22am

    Re: Re: Re:

    The pirates don't get anything then because no big production movies would be made. There wouldn't be anything worth viewing.

    Your snobbery is showing again. Why is it that "cost lots to make = must be good"? As if price is value?

    Personally, while I enjoy a good "whoosh-bang, kick-ass" mindless hollywood "blockbuster" as well as the next guy, I could do without them and at least 90% of my personal fave movies of all time come in the low-budget, high-story category.

    Plus you still carefully ignore the bit where, whether copyright in itself is "good" or not, there's no sensible argument as to why anyone, creator or corporation that took the rights from the creator, should still be being paid again and again for something 100+ years after any work was done.

     

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  74.  
    identicon
    Anonymous Coward, Mar 2nd, 2012 @ 10:33am

    Re: Re: Re: Re: Uh no-- balance is possible and desirable

    Actually, there was. It was called macrovision. I think it did something like putting flashing lights in the Overscan, or something.

    It basically made it so, in theory, any copy you made of a protected movie would have constantly flickering brightness to the point of unwatchability. In practice, though, it could be defeated with only a little modification to your VCR.

     

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  75.  
    icon
    Not an Electronic Rodent (profile), Mar 2nd, 2012 @ 10:34am

    Re: Re: Re: Uh no-- balance is possible and desirable

    Bob is a little confused about all this
    Yep, and about the police thing too - when I was younger, all the local markets had a stall selling copied videos and I never knew of one what was arrested or vanished from his pitch over the years. As I got older I knew loads of people with the ability to copy "macrovisioned" tapes because after a while you didn't even need the inline widget to remove it as video recorders improved. No-one got arrested because no-one really cared.

     

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  76.  
    icon
    Not an Electronic Rodent (profile), Mar 2nd, 2012 @ 10:42am

    Re: Nash Bargaining problem

    Oh my! That's the most fantastic argument I've heard for absurd copyright terms EVER!

    "We have to have long copyrights otherwise artists would be assassinated"

    Priceless. I wish I could hit funny more times. Oddly enough it's also about the most coherent argument for long copyright terms I've ever heard too.....

     

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  77.  
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    Chargone (profile), Mar 2nd, 2012 @ 11:19am

    Re: Re: Re: Re: Re: Re: Terrible

    or Hollywood.

    i fail to see what Else you could call Hollywood accounting and not be blatantly dissembling (i believe I'm using that word correctly?)

     

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  78.  
    icon
    Chargone (profile), Mar 2nd, 2012 @ 11:33am

    Re: You can't comprimise with copyright law

    "But today it is possible even for the poorest people in the world. " while i agree with most of your statement, this bit makes me wonder what you're smoking, and where i can get some.

     

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  79.  
    icon
    Chargone (profile), Mar 2nd, 2012 @ 11:37am

    Re: Re: Nash Bargaining problem

    actually, that one is a valid and viable point. the fact is there have been people who do things like that.

    hell, it's a proveable Fact that many corporations would do it quite happily, were it not for the fact that the employee tasked with either doing or aranging it cannot (yet) get out of personally paying the penalty for murder/conspiricy to commit murder (or whatever), where as dodgy accounting practices somehow get pinned on the corporations as a whole rather than the individual (unless the individual was stealing from the corporation, of course) and the only punishment a corporation can be given is a fine, which is just another number in the 'expenses' column.

     

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  80.  
    identicon
    Anonymous Coward, Mar 2nd, 2012 @ 1:45pm

    Re: Re: You can't comprimise with copyright law

    Why does it make you wonder? Its true, I'm very poor myself, but technology does allow me these things.

     

    reply to this | link to this | view in thread ]

  81.  
    identicon
    Anonymous Coward, Mar 2nd, 2012 @ 2:39pm

    There's no balance, no equality...

    Be still. I will not accept defeat.

     

    reply to this | link to this | view in thread ]

  82.  
    identicon
    Anonymous Coward, Mar 3rd, 2012 @ 10:51am

    Re: Re: People who make things

    The people who make things have the rights.

    Why?

    In every other element of society, it's the people who own the things that have the rights. The people who make them have zero rights.

    Creativity doesn't happen in a vacuum. Every piece of music, art, film, image, sculpture, software - every piece of it - was created from the work that preceeded it. You want to learn how to become a "creator"? You study the works that have already been created. This is the fundamental concept of culture, and the basis for copyright.

    Why is it that when dealing with copyright, it's the other way around? With copyright, the people who own the things have no rights, and the poeple who create with the things have all the rights? It's entirely backwards.

    An example:

    Suppose you are going to build a house. You buy a lot and materials and have them delivered. You show up to start work, and you discover I have used all the materials to build a house on the same lot.

    Now I say "oh, but I created this house! It's mine! If you want to live in it, you'll have to license the house from me! I created it, I have all the rights!"

    It would clearly be absurd for me to claim that I own the house simply because I created it. So why is it that with copyright, you continually claim the same thing? You create your "content" from works that belong to society, but you get all the rights, and society gets nothing?

    What the fuck is wrong with you that you don't understand this simple thing?

     

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  83.  
    identicon
    Andrei Mincov, Mar 5th, 2012 @ 1:03am

    Exactly, there can be no balance. And it's a good thing.

    I've been saying this for years as well.
    Just as there can be no balance between the interests of rapists and their victims, there can be no balance between copyright owners and those who want to use copyright owners' works against their will.
    Copyright laws are intended to protect the WEAKER party to the transaction - the author without whom the work would not have existed.
    Morally, public interest is of no relevance to the copyright equation. Just because the majority of the population would benefit from free use of someone else's work does not mean that they have ANY right to such use if the author (or his licensee or assignee) chooses against it.

     

    reply to this | link to this | view in thread ]


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