More Details On Copyright Office's Suggestions On Copyright Reform; Some Good, Some Bad

from the going-to-be-a-mess dept

Earlier today, we broke the story that the head of the US Copyright Office, Maria Pallante is proposing major copyright reforms, including reducing the term to life plus 50 with the ability to proactively renew for another 20 years. While this was a move in the right direction (though not far enough), there were plenty of other proposals that were worrisome. Some more details are starting to come out.

First, I'm at a Santa Clara University conference all about the DMCA (fun stuff!) today, and Rob Kasunic from the Copyright Office mentioned that Pallante's talk at Columbia a couple weeks ago, where most of this information comes from, was merely a "shorter" version of her larger proposal. And that's impressive since her talk covered a lot of different areas concerning copyright. Now, the Association of Research Libraries has posted the notes of an attendees at that lecture, Greg Cram, from the NY Public Library. He points out that these are just his own notes, and may not be totally accurate. However, there are some details. First, the reduction in copyright term is basically what we discussed:
Term of 50 years, renewable for an additional 20

—The Supreme Court decision in Golan v. Holder is last word on whether life plus 70 years is constitutional

—However, the term of copyright protection could be modified to 50 years after the death of the author, renewable for another 20 years

—This would put the burden on the copyright owner to renew copyright term at the end of 50 years after death

—Modeled after § 108(h), something the Copyright Office is very fond of

—This proposal would be acceptable under various international treaties, including the Berne Convention
This is a small step in the right direction, which is surprising, since pretty much all steps have gone in the other direction, in favor of maximalism. However, there is plenty to be worried about. Here are a few such points:
Stronger Enforcement —The new law must respect the integrity of the internet, including free speech —There needs to be, however, a mix of legislative and voluntary efforts to combat infringement online —On solution may be to increase criminal penalties for streaming, or at least bring them in line with the penalties for distribution through downloads
In other words... perhaps we trade off shorter terms for more criminal prosecutions for "streaming," even as there are serious questions about why basic streaming should be illegal and with so much evidence that greater enforcement does little to help copyright holders' bottom line. That's a problem.
The Digital Millennium Copyright Act —The Internet has evolved since DMCA passage in 1998 —Congress should review the § 512 safe harbors —Congress also needs to review § 1201 rulemaking, especially in light of the White House response to a petition on unlocking mobile phones
This is the part that worries me. The entertainment industry has been really itching to ditch the DMCA's safe harbor provisions that protect service providers from liability for the actions of their users. If that's the trade-off for shorter copyright terms, it's not worth it. The safe harbor provisions of the DMCA are a huge part of why the internet has been able to develop so many wonderful services.

The § 1201 rulemaking, however, is the issue concerning anti-circumvention, which should absolutely be re-examined, as it's created a huge mess for all sorts of legitimate uses. But, again, re-opening the safe harbors provision should be a non-starter. Nothing good can come from that.
Incidental Copies —Not all copies are the same —Perhaps there could be discrete exceptions for certain incidental copies —For more information on this issue, see the Copyright Offices 2001 study on the Digital Millennium Copyright Act
Depending on where this falls out, this could be pretty important. Hollywood has often tried to argue that "incidental" copies should be seen as infringing, and cases like the Cablevision case have raised some issues around that.
Public Performance Right for Sound Recordings —Copyright Office is a “strong supporter” of a public performance right for sound recordings —Disparities between terrestrial radio and internet radio royalty rates are hampering new business models
This is an old battle that's been fought for years and years, and is basically a tax on broadcasters for the benefit of the RIAA. It's silly since it's obvious that the record labels directly value radio airplay, because they pay for it via payola. Arguing that radio stations should have to pay back for the "right" to promote a musician seems kind of silly.
Statutory Damages —Review registration requirements —Look at statutory damages from all angles —Statutory damages are important part of copyright act and should be retained —Need to provide guidance to courts about how statutory damages should be applied
This one could be good, since the statutory damages are so out of whack with reality. However, again, just watch as Hollywood -- with its ridiculous belief that "more punishment" will suddenly get people to buy again -- argues that these rates need to go up not down.
Other Exceptions/Limitations —The libraries and archives exception in § 108 should be updated —Update exceptions for the blind and print disabled in § 121 for the digital world —Explore new exception for higher education institutions —Personal space-shifting
These are important, but are really reflections of problems of a system that has automatic copyright applied to nearly everything and not nearly enough recognition of individual rights. The solutions here are useful, but are basically just patching up evidence of why overreaching copyright law is fundamentally broken. On that issue, however, she apparently believes that more compulsory licensing can be a solution:
Opt-Out v. Opt-In —Extended collective licensing could potentially solve many problems
Of course, this ignores just how screwed up the collective licensing process often becomes, with the focus just being on constantly raising rates, often squeezing out other business models. On top of that, the distribution challenge means a lot of wasted overhead and an all too frequent situation in which big name artists end up getting the money that should go to smaller artists, since they're harder to find and to track.
Small Claims —The Copyright Office is studying this issue —Small claims may be a way for rights holders to enforce rights when federal litigation may be too expensive —The Copyright Office could, potentially, take a lead role in administering small claims
We discussed this recently, and how it could actually have widespread impact, leading to more infringement lawsuits being filed. This needs to be watched carefully.

There's also the issue of giving herself a lot more power:
Finally, Congress should expand the role of the Copyright Office. The Office could help to resolve questions of law or fact through advisory opinions. The Office could also help to establish best practices on a number of topics, including searching for copyright owners. If an extended collective licensing scheme is devised by Congress, then the Office could provide transparency to that system.
Basically, they want to make the Copyright Office a bigger deal, like the FCC or something. This has a whole host of risks, especially when the Copyright Office has a big revolving door with the entertainment industry.

Once again, this is going to be a very big deal when the full details of these suggestions are put forth -- and we should be quite worried about a number of the ideas above that could make things significantly worse, rather than better.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Anonymous Coward, Mar 15th, 2013 @ 2:41pm

    Ohhhh! Scary!!!!! Copyright changes are scary!!!!!!!!!!!

     

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    S. T. Stone, Mar 15th, 2013 @ 2:45pm

    Yeah, that comment I made earlier this morning about someone smoking pot?

    Apparently, youd have to get high to think most of these suggestions qualify as good ideas.

     

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      Chosen Reject (profile), Mar 15th, 2013 @ 3:01pm

      Re:

      Every single one of these ideas are a power or money grab for the copyright office. Even the shortening of the terms is simply a way to get more money to the copyright office. She'd probably be happy to have the terms be what they are plus the opportunity to renew, but is afraid of having Golan v Holder brought back around. She's "compromised" by going with a completely nonsensical breaking point. Why not 50 years, and you can renew it to life+70? Life+50 and then renew for another 20? That's just ridiculous, but allows her to keep the copyright industry happy by keeping ridiculously long terms, makes the copyright office happy by allowing for money from renewals, and keeps the copyright industry happy again for not having to face the prospect of Golan v Holder being reversed.

       

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    Anonymous Coward, Mar 15th, 2013 @ 2:46pm

    Every and each person in this world needs to wake up.

    Copyright is not something harmless that is good, is a harsh monopoly imposed on everybody dressed up as a good thing.

     

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    tomxp411 (profile), Mar 15th, 2013 @ 2:54pm

    This is an old battle that's been fought for years and years, and is basically a tax on broadcasters for the benefit of the RIAA. It's silly since it's obvious that the record labels directly value radio airplay, because they pay for it via payola. Arguing that radio stations should have to pay back for the "right" to promote a musician seems kind of silly.

    What about the fact that streaming stations have to pay for music? Why does Sirius/XM get a different rate? Shouldn't terrestrial and streaming radio stations play under the same rules?

    IMO, all public performances of recordings should play by the same rules: you pay n cents per listener per song, period. I don't care whether it's terrestrial radio, satellite, cable music channel, or Internet music channel.

    Aside from that, I think that Copyright law has gotten out of sync with the expectations of the American Public. Law should reflect common morality, not the other way around.

    What is happening with Copyright law is that an industry is forcing its desires on the public, and no one is asking us (the public) what WE want.

    It's our country, and it should be OUR laws... everyone's laws, not just the laws of one select group of people.

     

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      Anonymous Coward, Mar 15th, 2013 @ 2:58pm

      Re:

      ""What is happening with Copyright law is that an industry is forcing its desires on the public, and no one is asking us (the public) what WE want.""

      As long as Hollywood pays for the election campaign and buys the election then there is no need for them to care what the public wants as Hollywood have already got want they want with buying politicians.

       

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      Karl (profile), Mar 15th, 2013 @ 4:12pm

      Re:

      What about the fact that streaming stations have to pay for music? Why does Sirius/XM get a different rate? Shouldn't terrestrial and streaming radio stations play under the same rules?

      Terrestrial radio has been paying the same kinds of royalties for nearly a hundred years. The RIAA said that digital streams deserved a different rate, because it wasn't like terrestrial radio. (Specifically, they used the "it's digital, so it's piracy!" argument.)

      To now come back and claim that terrestrial radio should pay that different rate, because it's the same as digital streaming, is the height of hypocrisy.

      If terrestrial radio did have to pay those royalty rates, it would have to pay an additional 20% of its annual revenue (or possibly more) - something like $2 billion per year. At least, according to this Billboard article.

      Add to this, the fact that terrestrial radio is dying - mostly from competition from streaming services. Making them pay these royalties would simply put the nail in the coffin.

      Now, I don't listen to terrestrial radio, and haven't for years. So, honestly, it's no skin off my nose. But if you actually like radio, then these royalty rates are a terrible idea.

       

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        tomxp411 (profile), Mar 15th, 2013 @ 4:30pm

        Re: Re:

        And therein lies the problem: I don't agree with the RIAA.
        Terrestrial radio, Cable music, satellite radio and Internet radio are not fundamentally any different from each other.

        No one has yet put forth a real answer about why getting music through my computer or cell phone makes it more valuable than when I pull it out of the air on my FM receiver.

        The only argument I've heard is that radio play is exposure for artists. If that's the case, then how is Internet radio play any less valuable a tool for artist exposure?

        Of course, I have also stopped listening to music on the radio altogether; I either download songs from Amazon, listen to Spotify, or listen to podcasts. In fact, I have been exposed to MORE artists as a result of Internet radio than I ever was on FM.

        I find it interesting that satellite Internet radio came to be when royalties were lower. Now that they've gone up, there hasn't been any real innovation in that space.

        (Yes, we've got some music on demand services now, but those aren't relying on the compulsory licensing that radio services do, so that's a whole other conversation.)

        The purpose of Copyright is to spur innovation. What it's being used for in this instance is to prevent competition, and I don't think that's at all the intent of the law or fair to the industry or to consumers.

         

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    Atkray (profile), Mar 15th, 2013 @ 2:58pm

    Apparently they figure that Lifetime + 50 is how long it will take to lock up everyone that opposes them.

     

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    Anonymous Coward, Mar 15th, 2013 @ 3:00pm

    when it comes to copyright and patents, regardless of how things sound, you can bet your ass that they will only get worse, much more expensive and much easier to prove copyright infringement as far as ordinary people are concerned. the copyright and patent holders haven't spent a fortune getting the law to be how it is atm to see it go in reverse. any changes that are not going to benefit the holders will be so rigorously fought that the 'revolving door' will be spinning like a top!!

     

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    jupiterkansas (profile), Mar 15th, 2013 @ 3:00pm

    One way or the other, the government needs to take action on copyright reform and the floor needs to be open to debate. I imagine things will only get worse, but what we have now isn't working at all.

     

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    Anonymous Coward, Mar 15th, 2013 @ 3:17pm

    Another Commercial Felony Streaming Act? Hopefully this one will be better written so that those who merely VIEW streams cannot be prosecuted.

    The House verssion under SOPA did make viewing streams illegal, but the Commercial Felony Streaming Act, under Klobuchar, did not.

    Lets hope that those only merely view the streams cannot be prosecuted.

     

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    anonymouse, Mar 15th, 2013 @ 3:17pm

    Making copyright acceptable

    This will not happen, they have lost the power they seem to think they had. the people want copyright to go away or at the least to be 5 years and only affect those making money from others content. Sopa was a failure for the maximalists and a win for the consumer, this could be a much bigger win, on the level of changing the way the world looks at content completely. Just imagine those websites that will be affected doing rolling blackouts , i think the government would very soon be swamped with letters and emails and phone calls showing just how many people want the copyright monopoly gone.

     

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    Anonymous Coward, Mar 15th, 2013 @ 3:26pm

    This is the part that worries me. The entertainment industry has been really itching to ditch the DMCA's safe harbor provisions that protect service providers from liability for the actions of their users. If that's the trade-off for shorter copyright terms, it's not worth it. The safe harbor provisions of the DMCA are a huge part of why the internet has been able to develop so many wonderful services.
    I'm feeling optimistic for some reason, so here's hoping the suggestion is to actually expand safe harbors, rather than remove them.
    C'mon, aren't we all sick of hearing about companies throwing their users under the bus because they don't want to be sued? These days bored kids take down blogs for kicks, because all it takes is a barely official-looking e-mail to send businesses running scared.
    Maybe this is acknowledging that the current safe harbors are good, but don't go far enough, and-
    There's also the issue of giving herself a lot more power:

    Basically, they want to make the Copyright Office a bigger deal, like the FCC or something. This has a whole host of risks, especially when the Copyright Office has a big revolving door with the entertainment industry.
    ...Well, there goes my optimistic mood.

     

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      Anonymous Coward, Mar 15th, 2013 @ 9:42pm

      Re:

      Once the federal government has created a useless federal agency populated with dumb people they can't get rid of it because of ... jobs!!! Yeah, those people heading the agency get a nice pay check, if they lose their jobs where are they going to go? No, can't have that. Public interest be darned.

       

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    That One Guy (profile), Mar 15th, 2013 @ 3:31pm

    Umm, no

    Given that other than the exceptions for disabilities and learning, every single bit of this looks to be all sorts of bad, or at best neutral, I get the feeling those bits were included just so she could act like it's a compromise, rather than the 'and the public gets screwed again' it actually seems to be.

     

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    Akari Mizunashi (profile), Mar 15th, 2013 @ 4:52pm

    Well, Maria, it looks as though you just killed off your cushion job at the MPAA or RIAA by suggesting copyright terms be reduced.

    Oh well. No worries, though, because the next head of the copyright office will make damn sure the MPAA/RIAA draconian demands undo what you're proposing.

    Copyright is broken and these notes only prove it's not going to be fixed in my lifetime.

     

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    Steve, Mar 15th, 2013 @ 6:16pm

    Copyright Office

    > Finally, Congress should expand the role of the Copyright Office.

    Perhaps at the same time as expanding the role, Congress can also change it's name to the Copyprohibition Office to better reflect it's role.

     

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    Anonymous Coward, Mar 15th, 2013 @ 6:25pm

    Life+50?

    So, what is the duration of life for a corporation like Disney? Is it when they go bankrupt, are sold to a bigger corporation, or infinite?

     

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      Ed C., Mar 15th, 2013 @ 9:58pm

      Re: Life+50?

      That's only for copyrights assigned to specific authors. Those that belong to a corporation or contract works, aka "works for hire", are 95 years after publication or 120 years after creation, which ever comes first.

       

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    Mason Wheeler, Mar 15th, 2013 @ 6:30pm

    No safe harbor

    This is the part that worries me. The entertainment industry has been really itching to ditch the DMCA's safe harbor provisions that protect service providers from liability for the actions of their users. If that's the trade-off for shorter copyright terms, it's not worth it. The safe harbor provisions of the DMCA are a huge part of why the internet has been able to develop so many wonderful services.


    Will you please stop saying that? It's a lie, and a harmful one at that. If the RIAA says "let's get rid of the Safe Harbor provision," the appropriate response from people who understand the Internet should be "oh, please don't throw me into that thar briar patch!"

    The "safe harbor" provision did nothing to encourage the growth of the Internet. Calling it the "Safe Harbor" provision is an Orwellian mis-naming if there ever was one, as it does nothing good for the Internet; all it does is expose sites and service providers to greater restrictions and greater liability in return for a promise of safety that, as we see with the Megaupload case, isn't worth the paper it's printed on if the bad guys really want to make you stop being disruptive. And even when it does help keep people from being sued, there are worse things than being sued, such as the massive chilling effect that the existence of the "Safe Harbor" creates.

    If there had been no Safe Harbor, at some point someone would have sued some website over hosting infringing content. They would have replied with a defense that they operate under Common Carrier doctrine, and have zero liability to do anything whatsoever about the data they handle, and so the plaintiffs can go screw themselves. And they would have won, and it would have set a precedent. (And it would have done so back before the rise of wireless devices and cable modems consolidated power in the hands of companies that don't want to operate as common carriers, so today the network neutrality problems they're causing for us would never have come along in the first place.)

    The DMCA took that away from us, and between the "Safe Harbor" and the legitimization of DRM, directly set up every bit of copyright abuse that's been used against the Internet ever since. There is nothing good about the DMCA, and it needs to be repealed in its entirety.

     

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      Greevar (profile), Mar 16th, 2013 @ 11:21am

      Re: No safe harbor

      No, you're completely wrong. Without the DMCA safe harbors, every site and online service out there would be terrified about the idea of user generated content. Every customer would be a potential liability suit waiting to happen. That creates a chilling effect on innovation. The internet thrives on UGC and killing that off would make the internet nothing but a read-only format. Without safe harbors there would be no You Tube, no Vimeo, no Deviant Art, no blog comments, and no voice for the citizens of the internet. The content providers would post their media and we would passively consume it. That is the grim reality of no safe harbors.

       

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        Karl (profile), Mar 16th, 2013 @ 5:07pm

        Re: Re: No safe harbor

        No, you're completely wrong. Without the DMCA safe harbors, every site and online service out there would be terrified about the idea of user generated content.

        This is unquestionably true. In fact, one of the reasons that the DMCA was passed, is that websites were sued, and some were found to be liable for their users' content. On the other hand, in other circuits, the opposite was true, so there was a "circuit split" in the case law. (I've been trying to remember the cases, but I can't right now.)

        No question that the DMCA safe harbors were definitely a good thing.

        There are only three possible ways it could be improved:
        1. Issue a clarification that following the DMCA exempts you from criminal infringement;
        2. Switch to a notice-counternotice-takedown system (instead of a notice-takedown-counternotice system);
        3. Increase the consequences for issuing improper takedowns (like in the Lenz case).

        Somehow, I doubt that any of this is what Pallante has in mind. So, here, I agree with Mike: if destroying safe harbors is the price we pay for copyright term reductions, it's not worth it.

         

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      Anonymous Coward, Mar 18th, 2013 @ 1:44am

      Re: No safe harbor

      I agree.

      Adding a link to your shackles doesn't enable you to do shit.

      The shackles are disabling you.

      Copyright is about having everyone shackled but you.

       

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    ByteMaster (profile), Mar 15th, 2013 @ 7:00pm

    Berne Art. 35 para 2

    "(2) Any country may denounce this Act by notification addressed to the Director General. Such denunciation shall constitute also denunciation of all earlier Acts and shall affect only the country making it, the Convention remaining in full force and effect as regards the other countries of the Union."

    There. You can also get rid of both the WIPO "agreements". The problem, and you can point the finger straight at the good ole US of A for that, is the WTO TRIPs agreement.

    THERE IS NO WAY TO GET OUT OF TRIPs OTHER THAN QUITTING THE WTO!

    And if you think that was an oversight, I feel sorry for you. This was a deliberate Lock-In.

    But: where there's a will, there's a way. It's up to us to make sure the politicians HAVE that will. Yes, at first there will be little they can do. But what they CAN do is become VERY VOCAL: "if it was up to us, we'd change the copyright term to 10+10 after publication, and we extend our hand to every other nation who feels the same."

    Then it's just a matter of time. But when everyone just keeps quiet and pretend nothing is wrong or nothing can be done, does EXACTLY what the evil minds behind all this intended. Image: Emperor Palpatine, condescending smile, "everything is proceeding as I have foreseen"

     

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    RadialSkid (profile), Mar 15th, 2013 @ 7:30pm

    Here's my counter-suggestion:

    1. Eliminate "copyright on creation." If you want it, you register for it, period.

    2. Copyrights must be renewed every ten years, for a maximum of 50. No exceptions. That maximum window allows a generous amount of time for exclusivity, and the ten year expiration windows helps to prevent the phenomenon of "orphan works."

    3. Perhaps most importantly, open up "copyfraud" to civil liability. Any entity that commits copyfraud, through the false claim of copyright, the overstating of copyright privileges (e.g., ignoring fair use), or blatant misuse of copyright takedown notices, can be made by law to compensate any effected parties.

    If those three criteria are met, they can "enforce" to their hearts content. Until then, any ideas they have on the subject are simply unacceptable.

     

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    Anonymous Coward, Mar 15th, 2013 @ 9:28pm

    "including reducing the term to life plus 50 with the ability to proactively renew for another 20 years."

    I think the idea that politicians are grandstanding on a (slightly less) ridiculous proposal to replace an existing ridiculous set of laws is outrageous. I want IP laws to be reasonable if their very existence is even reasonable.

    This idea that there might be a remote possibility of replacing obviously bought and outrageously bad laws with slightly less bad laws as a compromise with the probability that lobby organizations will lobby against it and stop it and even make the laws worse is egregious. We must demand that the laws are only intended to serve the public interest and that there is no one sided 'compromise' with corporate interests that want more IP laws.

    If it were up to me IP laws would be abolished. They do little to nothing to serve the public interest and no one is entitled to them.

     

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    bob, Mar 15th, 2013 @ 10:06pm

    How dare they.

    How will starving artists afford another diamond-studded swimming pool now? Those things don't grow on trees, you know!

     

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    Anonymous Coward, Mar 16th, 2013 @ 11:00am

    I know that one alternate history site also has a "future history" site, some try to predict the future, and one thread had a bill known as PICCA (Protecting Internet Communication And Commerce Act), combining elements of CISPA, PICCA, PIPA, SOPA, ACTA, and TPP, all into one bill.

    I am beginning to think their prediction of PICCA may be right. I have a feeling that PICCA may become reality soon. I think that prediction might have been right on the money.

     

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    Greevar (profile), Mar 16th, 2013 @ 11:48am

    Abolish.

    Nuke it from orbit, it's the only way to be sure.

    Seriously though, nobody needs copyright. It's completely feasible to run a content business without it. As far as I see it, so long as there are other possible revenue streams and business models available that don't rely on controlling distribution, copyright doesn't need to exist. The internet itself made copyright unnecessary. There's crowd funding, subscriptions, merchandising, service contracts, and so on that can be just as viable as, or more so than, exclusive copy distribution.

    The death grip on copyright is just a last ditch effort to save the dying publishers who are being replaced by technology that grants the individual with the ability to generate content that used to take immense publishing corporations to accomplish. The conflict between copyright and infringement is just an attempt to allow the uncreative suits to keep their jobs. We don't need publishers and we don't need copyright, they do.

    This is just a sign of the times, the means of production is changing hands. Eventually, every person out there will have the means to produce what they need and want with the help of ubiquitous, easy-to-use technology. Manufacturing, creative content, agriculture, etc. will all be at the finger tips of every person and scarcity will cease to exist.

     

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