Copyright Office Boss Admits Copyright Law Is Broken And Needs A Rethink... But Still Focused On Bad Ideas

from the a-lot-to-worry-about dept

We posted one short post about a key comment from Register of Copyright, Maria Pallante, suggesting that the focus of copyright law should be on large scale piracy, rather than the teenager downloading at home. Many in our comments rightfully cheered on this line, but as the hearing is concluding it's worth pointing out that there are a number of things she's brought up that should be equally, if not more, troubling.
"I've never thought that copyright inhibits innovation."
Throughout the hearing, she repeatedly emphasizes her old line about how copyright is "first for the author" and then later for the public. This is a rewriting of history. Copyright is for the public, period. The means to do that is to create a benefit for authors. She's absolutely correct that these two things can and should be aligned, but those things are only aligned when you put the public interest first and then look to see how to create the best incentives following that. It's a different approach, and I'm troubled by her repetition of it being about "the artist first." It's not.

Also, troubling, was that she more or less endorsed large parts of SOPA as a proper solution for going forward. Specifically, she calls out the "follow the money" approach, which was a key part of SOPA, as a solution she believes would be effective for enforcement. This ignores the massive unintended consequences associated with that approach -- including the ability to shut down and kill off all sorts of innovations early on. A "follow the money" approach would have killed off radio, cable TV, the photocopier, the VCR, the MP3 player, the DVR and more in their early days. Do we really want that?

She also goes back, repeatedly, to saying that we need to make the public performance right a felony, rather than a misdemeanor -- another piece of SOPA. This is the "streaming" question. She wants to let law enforcement throw people in jail for streaming works, even if they do no host or even touch the content itself. That's pretty scary. She talks about the horrors of people "streaming the Super Bowl," ignoring that the Super Bowl isn't suffering from this at all. They're raking in tons of cash from advertisers. And yet, she claims that making streaming a felony is one of her "top 3" priorities on fixing copyright.

In a rather bizarre exchange with Rep. Chu, Pallante agrees with Chu that DRM is a form of innovation and that this shows that copyright inspires innovation. Furthermore, she insists that DRM is a required part of a functioning copyright system. Why? That is not explained.

Elsewhere, she mostly just focused on how things were "broken" and needed to be explored -- but held off on making specific proposals. That's a perfectly reasonable position to take, but it's worrying that there's little to no discussion about why the copyright system is broken. That is, we're talking about fixes to certain parts and a rethinking of those parts, but not looking at the very crux of the issue: whether or not copyright actually is creating an incentive, and if that incentive is useful or necessary. There's no discussion of why or how people create -- nor is there any discussion about how the vast majority of creation today is not for direct monetary benefit anyway, and yet is still locked up by copyright law. Without examining the core issues, the overall reform process is just going to produce another, outdated and broken law.


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    Jeffrey Nonken (profile), Mar 20th, 2013 @ 3:17pm

    (checks window again) Oh, there they are.

    "DRM is a form of innovation..."

    Broken window fallacy. Next!

     

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      Anonymous Coward, Mar 20th, 2013 @ 6:08pm

      Re:

      Alright, I'm going to troll. First define DRM...
      Digital Right Management: DRM is any technology that inhibits uses of digital content that are not desired or intended by the content provider. Wikipedia
      So a business running a Certificate Authority which selects employees allowed to VPN into the private network is technically running DRM. I.E. Not all DRM is bad...
      Just because some people decide to use technology for nefarious purposes doesn't mean the technology behind it isn't any good. Not that was probably in the context of her discussion, but education is key to understanding what technology provides.

       

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    out_of_the_blue, Mar 20th, 2013 @ 3:27pm

    WRONG: "Copyright is for the public, period."

    OBVIOUSLY it's a MIX to BALANCE rights and benefits, Mike. Don't you EVER get tired of being TRIVIALLY WRONG? -- It's a MONOPOLY FOR A LIMITED TIME. (Or, should be limited time.) -- Anyway, why can't you get "monopoly for author" and "public benefit" into your head at the same time? I'd say it's because too full of your biases. -- And chutzpah; that must literally ooze out of your head, you academic who's never made anything but preens himself on advising entire industries!



    Take a loopy tour of Techdirt.com! You always end up at same place!
    http://techdirt.com/
    Where arrogance meets ignorance to discuss what they'll do with someone else's 100 million dollar movie.
    ~11:27:08~[m]|730|{8}

     

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      That One Guy (profile), Mar 20th, 2013 @ 3:38pm

      Re: WRONG: "Copyright is for the public, period."

      'Don't you EVER get tired of being TRIVIALLY WRONG?'

      Oh the irony...

      Got a relevant little quote for you, I know you hate reading, so you'll be glad to know it's very short.

      'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.' Article 1, Section 8, Clause 8

      Now you may notice the goal is to benefit science and the arts, while the means to do so is the 'limited time' monopoly granted to authors/inventors/creators, not the other way around.

       

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      Anonymous Coward, Mar 20th, 2013 @ 3:39pm

      Re: WRONG: "Copyright is for the public, period."

      Coming from someone who is too full of biases and does exactly themselves in the comment they have just made now that is priceless lol

       

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      Anonymous Coward, Mar 20th, 2013 @ 3:40pm

      Re: WRONG: "Copyright is for the public, period."

      "Monopoly for author" wasn't even disputed by mike, it's that Mike is (correctly) pointing out that monopoly is solely for the purposes of public benefit and any benefits to authors is only a means to that end.

       

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      Anonymous Coward, Mar 20th, 2013 @ 3:46pm

      Re: WRONG: "Copyright is for the public, period."

      A monopoly is for the public LoL

       

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      Anonymous Coward, Mar 21st, 2013 @ 10:13am

      Re: WRONG: "Copyright is for the public, period."

      Actually you're the one that is wrong out_of_the_blew_Barbara_Walters_at_IHOP.

       

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    Anonymous Coward, Mar 20th, 2013 @ 3:33pm

    Specifically, she calls out the "follow the money" approach, which was a key part of SOPA, as a solution she believes would be effective for enforcement.

    You mean like your heroes; Wyden and Issa's proposed OPEN Act? Or like your paymaster, Google has endorsed?

    I guess the reason you now oppose it is that it works.

     

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    Anonymous Coward, Mar 20th, 2013 @ 3:35pm

    She also goes back, repeatedly, to saying that we need to make the public performance right a felony, rather than a misdemeanor -- another piece of SOPA. This is the "streaming" question. She wants to let law enforcement throw people in jail for streaming works, even if they do no host or even touch the content itself. That's pretty scary.

    Downloading is already a felony. Why should streaming be any different? What makes this "scary"?

     

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      silverscarcat (profile), Mar 20th, 2013 @ 3:45pm

      Re:

      Streaming, it's like watching television on your computer.

      Streaming, it's like listening to the radio on your computer.

       

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      Anonymous Coward, Mar 20th, 2013 @ 3:48pm

      Re:

      Have you seen how many things people wrongly claim copyrights on it?

      Imagine now John Steele types going all around, threatning people right and left with impunity.

      THAT IS FUCKING WHY!

       

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      Rapnel (profile), Mar 20th, 2013 @ 3:51pm

      Re:

      wha? Downloading is a felony? ... "Downloading" is a felony!? Streaming? As in chock-full-of-advert TV streams?

      WTF is wrong with you people? This stupid - should be a felony. No fear.

       

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      Chosen Reject (profile), Mar 20th, 2013 @ 3:55pm

      Re:

      Downloading isn't a felony. It's not even criminal, so not even a misdemeanor. So you tell us. Why should streaming be any different?

       

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        Anonymous Coward, Mar 20th, 2013 @ 4:28pm

        Re: Re:

        Downloading isn't a felony. It's not even criminal, so not even a misdemeanor. So you tell us. Why should streaming be any different?

        It must be painful to be as stupid and uninformed as you are:

        http://www.pcmag.com/article2/0,2817,2387202,00.asp

         

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          Anonymous Coward, Mar 20th, 2013 @ 5:10pm

          Re: Re: Re:

          So your source is an article that also gets it wrong? I'm looking for a criminal statue that says downloading in general is a felony. Show me.

           

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            Anonymous Coward, Mar 20th, 2013 @ 7:01pm

            Re: Re: Re: Re:

            Downloading is reproduction. See 17 USC 506 and 18 USC 2319 for felony/misdemeanor. You're welcome.

             

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              Anonymous Coward, Mar 20th, 2013 @ 8:39pm

              Re: Re: Re: Re: Re:

              Very good. You've learned how to look at the actual law instead of quoting pcmag. Now the rest of your lesson. 18 USC 2319 only spells out the punishments for criminal copyright infringement. 17 USC 506 does define what constitutes criminal copyright infringement. Now if only you'd read it to know that downloads (at least the vast majority of downloads and the most common cases) are not criminal and certainly not felonious.

               

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                Karl (profile), Mar 20th, 2013 @ 11:14pm

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

                Now if only you'd read it to know that downloads (at least the vast majority of downloads and the most common cases) are not criminal and certainly not felonious.

                Well, you know, except for cases where the DOJ decided it was felonious.

                Like the Rojadirecta site, for example, or TVShack (which neither hosted infringing materials, nor let users download the materials through the site).

                Whether those downloads, which fall under the "most common cases," were criminal (or felonious) or not, the U.S. DOJ certainly thought they were. The fact that their mere belief is enough to bring charges, should be a big huge red flag that the current copyright statutes (if indeed the DOJ followed them) are horrifying.

                 

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                Anonymous Coward, Mar 21st, 2013 @ 6:42am

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

                Very good. You've learned how to look at the actual law instead of quoting pcmag. Now the rest of your lesson. 18 USC 2319 only spells out the punishments for criminal copyright infringement. 17 USC 506 does define what constitutes criminal copyright infringement. Now if only you'd read it to know that downloads (at least the vast majority of downloads and the most common cases) are not criminal and certainly not felonious.

                Wow. Um. Yeah. Not all downloading is a felony. It depends on what's being downloaded. Just like not all shooting of guns is a felony. It depends on what you're shooting at. If you read the statute that I cited, it explains when it's a crime and when that crime is a misdemeanor or a felony.

                 

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                  Anonymous Coward, Mar 21st, 2013 @ 7:04am

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

                  OP, who may or may not have been you, stated that downloading is a felony and he later used pcmag as proof. That is wrong and not just because he used a crappy citation. He could have said theft is grand theft auto and been just as wrong. He could have said theft is robbery and been just as wrong. He could have said shooting a gun is a felony and been just as wrong. Downloading is NOT a felony. There are other circumstances that involve downloading that could be a felony, but downloading by itself isn't a felony, it's not a misdemeanor, it's not even criminal. I'm not being so pedantic that I'm requiring him to specify unauthorized downloading of copyrighted materials. It's plain and simple, downloading in and of itself is and never has been a felony.

                  If you had read the statute that Chosen Reject and others had cited you'd have read the same thing. Downloading, as per the original discussion, is not a felony. It can be, but so can touching someone be assault, but it's usually not and saying "Touching someone is assault" without any other info is just as stupidly wrong.

                   

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                    Anonymous Coward, Mar 21st, 2013 @ 7:10am

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

                    Of course downloading is not always a felony. Downloading can be a felony, while publicly performing cannot. That's the point. The Register is saying that there should be parity between the two, especially now that streaming is much more prevalent than it used to be since there are many streaming sites.

                     

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          Chosen Reject (profile), Mar 20th, 2013 @ 5:17pm

          Re: Re: Re:

          Instead of getting your information from a pcmag, you might want to try getting information about law directly from the source. In order for downloading to be a criminal offence there are certain requirements. You can read them yourself.

          Is it possible that downloading could be criminal (which is necessary for it to be a felony)? I suppose. Is it usual? No. In fact, I haven't heard of a single case where the downloader was convicted of a felony, though I don't rule out the possibility.

           

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        Anonymous Coward, Mar 20th, 2013 @ 7:03pm

        Re: Re:

        It is, if it is done more than 10 times in 6 months, and the total retail value is $2500 or more, and then it has to be for commercial gain. That is why downloaders don't typically face criminal charges. Its the $2500 worth of content that has to be pilfered before felony charges kick in.

         

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        Anonymous Coward, Mar 20th, 2013 @ 8:36pm

        Re: Re:

        http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2265.ENR:

        Downloading can potentially be a felony.

         

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      gnudist, Mar 20th, 2013 @ 4:06pm

      Re:

      If downloading is a felony(and it's not) then that just shows we need to reform copyright law so that it's a civil offense.

      Copyright was meant to benefit the public, that same public should never be made felons for the simple act of downloading.

       

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        Anonymous Coward, Mar 20th, 2013 @ 4:26pm

        Re: Re:

        Don't you ever tire of being revealed to be a drooling moron:

        http://www.pcmag.com/article2/0,2817,2387202,00.asp

        Fifth paragraph

         

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          That One Guy (profile), Mar 20th, 2013 @ 5:06pm

          Re: Re: Re:

          Before slinging around insults like a, how did you put it, 'drooling moron', you might want to read the sources you link to.

          Had you done so, you'd have seen that the 'The Commercial Felony Streaming Act' you are basing your claims/insults on hasn't been passed, but was merely referred to the full senate for a vote.

          Moreover, it's apparently suffered what seems to be a well deserved death, as the last mention of it was on 6/20/2011, with nothing regarding it since, according to the following site: https://www.opencongress.org/bill/112-s978/show

          I gotta say, there are few things funnier than a person's own sources refuting their claims, so thanks for the laugh.

           

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            Minimum Waged Shill, Mar 20th, 2013 @ 5:24pm

            Re: Re: Re: Re:

            But but but, it is a felony because if you illegally download it can lead to bigger crimes and felonies and maybe even murder down the line and those are felonies and so, by extension, since piracy leads to these things, piracy is a felony too.

             

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          Anonymous Coward, Mar 20th, 2013 @ 5:13pm

          Re: Re: Re:

          I'm sure a prosecutor would be willing to bring 'felony downloading' charges against someone on the word of pcmag.com that such a felony actually exist (hint: it doesn't).

           

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          Anonymous Coward, Mar 20th, 2013 @ 6:38pm

          Re: Re: Re:

          I love how you call me a drooling moron and you didn't even bother to do the research to find out if the article you linked to is accurate.

          blindly trusting every article you read is what a drooling moron would do.

          That would be YOU

           

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            Anonymous Coward, Mar 20th, 2013 @ 8:22pm

            Re: Re: Re: Re:

            So I provide an article. You provide nothing. Now you want me to do more research to refute your faith-base assertion claiming my source is less accurate than your faith?

             

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              gnudist, Mar 20th, 2013 @ 9:12pm

              Re: Re: Re: Re: Re:

              No, I claim the actual laws on the books are more trustworthy than some random article on the web. Faith doesn't enter into it

               

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          Marcel de Jong (profile), Mar 21st, 2013 @ 6:36am

          Re: Re: Re:

          If downloading == felony, then what the hell are you doing on this webpage? Don't you know that you broke the law by browsing the web, since that everything you see in a webbrowser (and email client) needs to be downloaded first?

          Expect the feds to come a-knocking.

           

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      S. T. Stone, Mar 20th, 2013 @ 4:26pm

      Re:

      First: Downloading does not rise to the level of a felony act.

      Now, to your other question.

      Imagine, for a moment, that a married couple calls each other via Skype. They talk for a little while, say a few lovey-dovey things to each other, then the wife plays her favorite love song for her husband while on the Skype call.

      Under the suggestion that streaming should become a felony, the wife would now sit on the hook for a felony act of copyright infringement for having streamed a copyrighted work without the prior permission of the copyright holder.

      Should she end up convicted of that crime, she might have to do jail time, pay a huge fine, or both. That felony conviction will sit on her record for the rest of her life and beyond (appropriate, given the length of copyright law). And all because she wanted to play a song for her husband over a VOIP call.

      I weep for you if you can’t figure out why that scenario sounds ‘scary’, because it means you can’t imagine the full consequences of enacting a law that would make such a scenario possible.

       

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        Anonymous Coward, Mar 20th, 2013 @ 7:33pm

        Re: Re:




        First: Downloading does not rise to the level of a felony act.




        If it is more than 10 times in 6 months and the value of the content purloined exceeds $2500, it is.

        No downloader has yet been charged with a felony becuase even the most habitual downloader is not going to download that much worth, in a 6 month perioud. At the typical $1.29 per song, that would mean someone would have to download 1,937 songs in a six month period. Even the heaviest downloaders are not going to download that much. That is why downloaders get sued in civil court, becuase they have not reached the felony threshold.

        It also has to be for commercial or financial gain. Personal downloadiong does not qualify as such, which is why no downloader has yet been charged with a felony.

        Klobuchar's Commercial Felonly Streaming Act, unlike the SOPA version, also had the same thresholds so that people who merely viewed content would not become felons. Otherwise the jails would have been full of people who watched pirated videos. The SOPA version of the felony streaming law would have criminalised personal viewing, but Klobuchar's bill did not.

         

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          That One Guy (profile), Mar 21st, 2013 @ 10:02am

          Re: Re: Re:

          Yes, it would be, if the bill had been passed. It hasn't. In fact it looks to be dead in the water, so your claims of 'felony streaming' are complete and utter bunk.

          Seriously, if you're going to make claims based upon a particular bill/act, it helps to make sure it actually made it off the debate floor and into law first.

          Again, I refer you to the following:
          https://www.opencongress.org/bill/112-s978/show

           

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        Anonymous Coward, Mar 20th, 2013 @ 9:18pm

        Re: Re:

        Under the Klobuchar streaming law, she would not, since it would not have been done for commercial or financial gain. So the wife, in this scenario, would be safe under the Klobuchar bill.

         

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      Anonymous Coward, Mar 20th, 2013 @ 5:17pm

      Re:

      It's scary to anyone that understands how streaming works.

       

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      Anonymous Coward, Mar 20th, 2013 @ 5:25pm

      Re:

      "Downloading is already a felony"

      Says clueless to the way the Internet works, responding to an article that the AC downloaded into the browser's cache folder. Felon! String em up!

       

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      Anonymous Coward, Mar 20th, 2013 @ 6:16pm

      Response to: Anonymous Coward on Mar 20th, 2013 @ 3:35pm

      Mike doesn't discuss details. Just be scared and stop thinking. This is TD.

       

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        gnudist, Mar 20th, 2013 @ 6:26pm

        Re: Response to: Anonymous Coward on Mar 20th, 2013 @ 3:35pm

        You have confused Mike with his opponents.

        It's the Music and film industries that put out bogus numbers and arguements that we're supposed to accept because corn farmers will all die out or whatever

         

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      Anonymous Coward, Mar 20th, 2013 @ 6:49pm

      Re:

      With your quote, I guess you just streamed Mike's article. You should be prosecuted and sued for infringement. Every site that hosts public commentary is now in the sites of copyright holders, not for content they host but simply commentary that third parties place on it. Does this match up with common sense in copyright laws?

       

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      Mike Masnick (profile), Mar 20th, 2013 @ 10:59pm

      Re:

      Downloading is already a felony. Why should streaming be any different? What makes this "scary"?


      We discussed this in 2011 when the streaming bills first came out. The *reason* that felony isn't applied to the public performance right, like it is to reproduction and distribution is *because* the concept of a "felony" performance is laughable.

      You've got a few major problems with it. First, if you're talking about the site that is actually hosting the content, then, no problem, you can already go after them via the distribution right. If you're talking about a site that isn't hosting the content, then, what exactly are you going after? You're going after a site that is linking to content -- a guide that is pointing people where to go. That should NEVER be felony material, because you're talking about someone who isn't involved in any actual infringement. Go after those hosting or uploading the material. But "streaming" it just opens up so many problems, especially given that most video hosting platforms have an easy embed feature -- potentially making tons of people felons. That's where the danger comes in. Embedding a stream is seen as a perfectly reasonable activity today. Making it a potential felony will have massive unintended consequences.

       

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        Anonymous Coward, Mar 21st, 2013 @ 6:12am

        Re: Re:

        First, if you're talking about the site that is actually hosting the content, then, no problem, you can already go after them via the distribution right.

        Wrong. The public performance right is distinct from the distribution right. A person can violate one or both. It is possible to be violating the public performance right while NOT violating the distribution right.

        If you're talking about a site that isn't hosting the content, then, what exactly are you going after?

        Other sites/operators that assist in the infringement could potentially be liable under either an accomplice or conspiracy theory. You don't seem to grasp these basic criminal law concepts.

        You're going after a site that is linking to content -- a guide that is pointing people where to go.

        And assisting others to infringe makes one just as liable as the direct infringer. Again, basic legal concepts that I assume you ignore because you don't like them.

        That should NEVER be felony material, because you're talking about someone who isn't involved in any actual infringement.

        If they are assisting in the infringement, then they are involved in the actual infringement. Again, basic legal concept. Don't ignore it because you don't like it.

        Go after those hosting or uploading the material.

        Sometimes those people are unknown or out of the jurisdiction. Are you seriously suggesting that aiders and abettors should be allowed to assist others in crimes with no repercussions? Truly amazing. Regardless, the law has NEVER taken that view, and it instead punishes those who help others commit crimes just the same as if they had committed the crimes themselves. Again, basic legal stuff that for whatever reason--willful blindness/pirate apologism/dishonesty--you ignore.

        But "streaming" it just opens up so many problems, especially given that most video hosting platforms have an easy embed feature -- potentially making tons of people felons. That's where the danger comes in. Embedding a stream is seen as a perfectly reasonable activity today. Making it a potential felony will have massive unintended consequences.

        It's already a tort and a misdemeanor. How would making it a felony open up so many problems that don't already exist? You love to throw out the "unintended consequences" FUD argument, but where are all those consequences now?

         

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          Karl (profile), Mar 21st, 2013 @ 8:54am

          Re: Re: Re:

          Wrong. The public performance right is distinct from the distribution right.

          But if the site is actually hosting the content from their servers, then they're violating the distribution right (and also the copying right), which is already a potential felony. So making the performance right a felony accomplishes nothing. So, no, not "wrong."

          It is possible to be violating the public performance right while NOT violating the distribution right.

          But if you're not violating the distribution right, then you shouldn't be considered a potential felon. That's the whole point.

          Other sites/operators that assist in the infringement could potentially be liable under either an accomplice or conspiracy theory.

          If that were true, then they would be an accomplice or conspirator to the copying or distribution of the works, already a potential felony. Which, again, means that making the public performance right a felony accomplishes nothing.

          And assisting others to infringe makes one just as liable as the direct infringer.

          There's no way in Hell that merely embedding a link rises to the level of "conspiracy" or "aiding and abetting" the principal infringers. No court in the land has ever said it does, because the notion is ridiculous. In fact, most courts have found that providing a link is not even secondary civil infringement - and secondary liability for civil infringement is a much lower bar than "conspiracy" or "aiding and abetting" in criminal law.

          Sometimes those people are unknown or out of the jurisdiction.

          The jurisdictional issue is a red herring. First of all, it has nothing to do with whether performance should be a felony. Second, making performance a felony solves nothing in this regard. If "those people" are outside of the reach of the laws regarding felony copying or distribution, then they would also be outside of the reach of the laws regarding felony performance. Third, going after the links would do nothing to take infringing works out of commission, since the infringing works would still be publicly available at the original sites.

          It's already a tort and a misdemeanor. How would making it a felony open up so many problems that don't already exist?

          Certain actions are not available to the government for misdemeanor charges. For example, there is no extradition on misdemeanor warrants. There is also a huge difference for those arrested: you don't lose your voting rights, misdemeanors usually aren't counted in "three strikes" laws, you don't lose your professional license, you are likely to get community service rather than jail time, etc.

          This is already way too harsh for someone who did nothing worse than share a link on Facebook. How is it just to punish them even more than they already are?

          Also, as I previously noted, in tort cases, merely sharing a link does not even rise to the level of secondary liability. You can't possibly think that making it a felony would not have significant chilling effects.

           

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            Anonymous Coward, Mar 21st, 2013 @ 9:23am

            Re: Re: Re: Re:

            But if the site is actually hosting the content from their servers, then they're violating the distribution right (and also the copying right), which is already a potential felony. So making the performance right a felony accomplishes nothing. So, no, not "wrong."

            Nope. If they are making the file available for streaming, and not downloading, then they are infringing the public performance right and not the distribution right.

            If that were true, then they would be an accomplice or conspirator to the copying or distribution of the works, already a potential felony. Which, again, means that making the public performance right a felony accomplishes nothing.

            If they are assisting the violation of the distribution right, then they can be a felon. If they are assisting the violation of the public performance right, then they cannot. That's the disparity the Register is addressing.

            There's no way in Hell that merely embedding a link rises to the level of "conspiracy" or "aiding and abetting" the principal infringers. No court in the land has ever said it does, because the notion is ridiculous. In fact, most courts have found that providing a link is not even secondary civil infringement - and secondary liability for civil infringement is a much lower bar than "conspiracy" or "aiding and abetting" in criminal law.

            It's not at all ridiculous. I don't see the point in pulling out the case law again when you just deny its import, but I'll point out that the Ninth Circuit in Perfect 10 v. Amazon said that Google could be contributorily liable for linking. The argument that it's a "much higher bar" misses the point. Yes, it would have to be proved beyond a reasonable doubt. So what? That's not insurmountable.

            The jurisdictional issue is a red herring. First of all, it has nothing to do with whether performance should be a felony. Second, making performance a felony solves nothing in this regard. If "those people" are outside of the reach of the laws regarding felony copying or distribution, then they would also be outside of the reach of the laws regarding felony performance. Third, going after the links would do nothing to take infringing works out of commission, since the infringing works would still be publicly available at the original sites.

            It's not a red herring at all. Mike was arguing that they should just go after the direct infringers. I'm pointing out that indirect infringers are just as culpable. If it's the tort variety, then the indirect infringers are jointly and severally liable with the primary tortfeasors. If it's the criminal variety, then the accomplice is liable exactly the same as the principle. If the primary infringer/principle is unavailable/unknown, that's no reason not to go after those who assist in the tort or crime.

            Certain actions are not available to the government for misdemeanor charges. For example, there is no extradition on misdemeanor warrants. There is also a huge difference for those arrested: you don't lose your voting rights, misdemeanors usually aren't counted in "three strikes" laws, you don't lose your professional license, you are likely to get community service rather than jail time, etc.

            Those aren't reasons to have a disparity between reproduction/distribution and public performance.

            Also, as I previously noted, in tort cases, merely sharing a link does not even rise to the level of secondary liability. You can't possibly think that making it a felony would not have significant chilling effects.

            And you are absolutely wrong about that. Again, see Perfect 10, a case I've cited before, but you don't seem to grasp it.

             

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              Chosen Reject (profile), Mar 21st, 2013 @ 2:51pm

              Re: Re: Re: Re: Re:

              AS has been shown time and time again, no matter how much you might want to think there's a difference, there is no practical difference between streaming and downloading. In order for a stream to play, the stream must be downloaded. Sometimes there are minor technical hurdles used to prevent someone from keeping a copy of a stream, but nothing that isn't easily worked around. Streaming is merely a form of downloading. If downloading can be a felony, then streaming already can be a felony.

               

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              Karl (profile), Mar 21st, 2013 @ 2:54pm

              Re: Re: Re: Re: Re:

              If they are making the file available for streaming, and not downloading, then they are infringing the public performance right and not the distribution right.

              And also the copying right - which is already a possible felony. I see your point about streaming/performance vs. downloads/distribution, but the point is still moot.

              If they are assisting the violation of the distribution right, then they can be a felon. If they are assisting the violation of the public performance right, then they cannot. That's the disparity the Register is addressing.

              There's a good reason that disparity exists. The only reason to make public performance (or display) a felony, is to jail people who did not make copies of the works, nor distribute them to anyone else. This would directly threaten to put people like theater or nightclub owners in jail for felony charges. Not to mention the artists who perform these works.

              You've chided the (somewhat sarcastic) "Free Justin Bieber" campaign for spreading "FUD." But if it's not applied to people like him, then who does it affect? The sites that intentionally host the content (and the people who aid and abet them, if that standard applies) are already facing felony charges. On the other hand, pirate "link sites" and search engines won't be affected at all - since they are not themselves infringing on the public performance right.

              I don't see the point in pulling out the case law again when you just deny its import, but I'll point out that the Ninth Circuit in Perfect 10 v. Amazon said that Google could be contributorily liable for linking.

              I've never "denied its import." I have, however, denied that your interpretation of the case law has import. Which is what I am going to do now.

              Let's examine that Perfect 10 v. Amazon/Google decision:

              [On the issue of direct infringement of the performance right:] Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user's computer screen. Because Google's computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any "material objects ... in which a work is fixed ... and from which the work can be perceived, reproduced, or otherwise communicated" and thus cannot communicate a copy. 17 U.S.C. 101.

              Instead of communicating a copy of the image, Google provides HTML instructions that direct a user's browser to a website publisher's computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. [...]

              Perfect 10 also argues that Google violates Perfect 10's right to display full-size images because Google's in-line linking meets the Copyright Act's definition of "to perform or display a work ‘publicly.'" 17 U.S.C. 101. This phrase means "to transmit or otherwise communicate a performance or display of the work to ... the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times." Id. Perfect 10 is mistaken. Google's activities do not meet this definition because Google transmits or communicates only an address which directs a user's browser to the location where a copy of the full-size image is displayed. Google does not communicate a display of the work itself.

              [On the issue of contributory infringement of the performance right:] Google's activities do not meet the "inducement" test explained in
              Grokster because Google has not promoted the use of its search engine specifically to infringe copyrights. [...]

              Our tests for contributory liability are consistent with the rule set forth in Grokster. We have adopted the general rule set forth in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., namely: "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory' infringer." [...]

              There is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials. We cannot discount the effect of such a service on copyright owners, even though Google's assistance is available to all websites, not just infringing ones. Applying our test, Google could be held contributorily liable [only] if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works, and failed to take such steps. [...]

              We evaluate Perfect 10's arguments that Google is vicariously liable in light of the direct infringement that is undisputed by the parties, namely, the third-party websites' reproduction, display, and distribution of unauthorized copies of Perfect 10's images on the Internet. Perfect 10, 416 F. Supp. 2d at 852; see supra Section IV.A. In order to prevail at this preliminary injunction stage, Perfect 10 must demonstrate a likelihood of success in establishing that Google has the right and ability to stop or limit the infringing activities of third party websites. In addition, Perfect 10 must establish a likelihood of proving that Google derives a direct financial benefit from such activities. Perfect 10 has not met this burden.

              With respect to the "control" element set forth in Grokster, Perfect 10 has not demonstrated a likelihood of showing that Google has the legal right to stop or limit the direct infringement of third-party websites. [...] Google cannot stop any of the third-party websites from reproducing, displaying, and distributing unauthorized copies of Perfect 10's images because that infringing conduct takes place on the third-party websites. Google cannot terminate those third-party websites or block their ability to "host and serve infringing full-size images" on the Internet.

              The analysis was almost exactly the same for Amazon.

              Note the parts I highlighted in bold. It showed that you cannot be held liable for merely providing a link to infringing content. You must also have actual, constructive knowledge of the infringement, the ability "take simple measures" to prevent the infringement, and fail to do so. Unless all three conditions are met, you are not a contributory infringer. And in no case could merely providing a link be considered inducement or vicarious infringement.

              The argument that it's a "much higher bar" misses the point. Yes, it would have to be proved beyond a reasonable doubt.

              That's not what I meant, and I'm sure you know it. You could be guilty of inducement, contributory infringement, or vicarious infringement, but still be innocent of "conspiracy" or "aiding and abetting." The "higher bar" isn't the standard of proof, it's that civil liability and criminal accomplice liability are not the same thing at all. Showing that someone is guilty of secondary infringement under civil law - even beyond a reasonable doubt - is insufficient to show any form of guilt under criminal law.

              The classic definition, when applied to copyright, is espoused in U.S. v. Rose:
              In order to aid and abet another to commit a crime, it is necessary that a defendant wilfully associate himself in some way with the criminal venture, that he willfully participate in it as in something that he wishes to bring about, and that he wilfully seek by some action of his to make it succeed. Thus [...] if you find that the defendant wilfully associated himself with others who were reprinting or publishing the allegedly infringing music books, and that he wilfully participated in their venture [...] through acts of his own calculated to make their venture succeed, even though he did not do the actual reproduction himself, then you may find that the defendant was an aider and abettor.

              There's no way in Hell that merely providing a link should rise to that standard.

              It's not a red herring at all. Mike was arguing that they should just go after the direct infringers. I'm pointing out that indirect infringers are just as culpable.

              Actually, if the content is user-generated (as most "pirate sites" are), then they would already be going after the indirect infringers. The direct infringers would be the users; the secondary infringers would be the sites that host their content (just as Napster and Grokster were secondary, not primary, infringers).

              But, again, this has nothing to do with jurisdictional issues.

              Those aren't reasons to have a disparity between reproduction/distribution and public performance.

              Certainly they are. Infringement of a public performance right, alone, should simply not be a felony. The punishment for publicly performing a work without permission massively outweighs the damage to the public caused by that infringement.

              We already have too many punishments that are far too draconian to be just. Adding more won't make the law any more just.

               

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            Anonymous Coward, Mar 21st, 2013 @ 12:30pm

            Re: Re: Re: Re:

            Speak of the devil. Mike's pirate buddy Gary Fung just got his ass handed to him by the Ninth Circuit: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/21/10-55946.pdf

            The court, naturally, cites Perfect 10 v. Amazon.com. A linker, like Fung, can be indirectly liable for the infringement they encourage others to commit. Said the court: "if one provides a service that could be used to infringe copyrights, with the manifested intent that the service actually be used in that manner, that person is liable for the infringement that occurs through the use of that service."

            Similarly, if one provides a link that can be used to infringe, with the manifested intent that it be used to infringe, then that person is liable for the infringement that occurs. This stuff really isn't hard. The fact that someone knowingly posts a link that points to infringing materials means that that person intends to cause infringement. And it means that they are liable for the infringement they helped to bring about.

            Only in the Opposite World of Mike Masnick's Techdirt do those that intentionally cause infringement get a free pass. In the real world, such bad actors are liable for their actions. Hilarious.

             

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    DF, Mar 20th, 2013 @ 3:40pm

    Marginal defense of Pallante

    I read Pallante's "author first" language differently. I take her as saying only that authors' interests are temporally prior to the public interest, which is the ultimate end of the copyright system. I don't think she meant that authors/owners are prior or equal in importance to the public. In fact, in her printed remarks (which are all I've seen, not able to get a live stream of the in person testimony) she cites Aiken to the effect that copyright benefits authors (temporally) first and then later redounds to the benefit of its ultimate benefactors, the public.

     

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      Anonymous Coward, Mar 20th, 2013 @ 6:29pm

      Re: Marginal defense of Pallante

      Of course that's what she means. Mike is too dishonest to discuss this.

       

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      Mike Masnick (profile), Mar 20th, 2013 @ 11:03pm

      Re: Marginal defense of Pallante

      I read Pallante's "author first" language differently. I take her as saying only that authors' interests are temporally prior to the public interest, which is the ultimate end of the copyright system.

      Yes, this is the defense that some people have brought up before, but it makes no sense. That's not actually what copyright law is supposed to do. It is supposed to benefit the public, full stop. The *means* for doing this are to provide incentives to the artists.

       

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        Karl (profile), Mar 20th, 2013 @ 11:53pm

        Re: Re: Marginal defense of Pallante

        I take her as saying only that authors' interests are temporally prior to the public interest, which is the ultimate end of the copyright system.

        Even if you do assume this is what she meant (and I don't), it makes no sense at all.

        There are only two possible ways to interpret her statements:

        1. Copyright is granted to authors first in time, then is granted to the public.

        This makes no sense, because copyright is never "granted to the public." By default, the public has all of the rights that are taken away from them, and granted exclusively to authors, in 17 USC 106. Those rights are either property rights (in that copy) or free speech rights (in the expression embodied in that copy) - neither of which is granted by the government. And neither of which the government has a right to take away, based on the rights granted to it in the Constitution.

        In fact, when works enter the public domain, nothing whatsoever is "granted" to the public. Instead, the government simply ceases infringing on the property rights and free speech rights that the public naturally holds.

        2. Copyright temporarily places the interests of copyright holders in front of the general public, until it expires.

        This is even more ridiculous. Copyright's primary purpose is to benefit the public, even while works are still under copyright. The idea is that the rights that the public gives up (voluntarily, in theory) are overshadowed by the benefits reaped by the public, in the form of "broad public availability of literature, music, and the other arts."

        This is the primary reason that such things as first sale rights, fair use, or the idea/expression dichotomy exist. They are in the statutes because the public must benefit from the works even if they're still under copyright protection. If that wasn't a concern, then these things should not exist at all. (And I get the impression that Pallante would not be overly concerned if these things were done away with.)

        So, no matter how you interpret her statements, she's still completely wrong on this point.

         

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        Anonymous Coward, Mar 21st, 2013 @ 6:02am

        Re: Re: Marginal defense of Pallante

        Yes, this is the defense that some people have brought up before, but it makes no sense. That's not actually what copyright law is supposed to do. It is supposed to benefit the public, full stop. The *means* for doing this are to provide incentives to the artists.

        This really isn't difficult to understand. As the poster notes, the Register cites Aiken. Here's the passage from her written testimony:
        To this end, I would like to state somethin g that I hope is uncontroversial. The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, they are not a counterweight to the public interest but instead are at the very center of the equat ion. In the words of the Supreme Court, “[t] he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. ” 2 Congress has a duty to keep authors in its mind’s eye, including songwriters, book authors, filmmakers, photographers, and visual artists. A law that does not provide for authors would be illogical — hardly a copyright law at all.
        As the Supreme Court notes in Aiken, and as the Register repeats, the benefits of copyright inure to the author first so that it in turn can benefit the public. I have no idea why, but you seem to think benefiting authors is inconsistent with benefiting the public. Even if benefiting authors is merely a means to an end, and not an end to itself--a position that I know you think is the only possible interpretation, even though there are other valid points of view that you are incapable of accepting--you still never explain how the reward of an incentive doesn't happen before the public benefits. For whatever reason (and it's not hard to guess why), you want to erase authors' rights from the equation. But authors' rights--i.e., the incentives--are an integral part of the copyright system. You seem to think we can pretend like they don't matter. Obviously they do.

         

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    Rapnel (profile), Mar 20th, 2013 @ 3:48pm

    I would just like to know why it seems so difficult to acknowledge and engage, on a large scale, that copyright lengths are far and away much too long to provide any benefit to the public much less the artists that expire long before their monopolies do. Corporate control of other people's art is not progressing the sciences and the arts. All that it seems to drive is the speed of descent into a inverted totalitarian regime.

    From my ledge any creator who so chooses to transfer the rights to their works should, by law, force a shorter term.

    DRM is innovation like a new mix of drugs for capital punishment is innovation. Boston Strangler, indeed.

     

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      Anonymous Coward, Mar 21st, 2013 @ 6:57am

      Re:

      From my ledge any creator who so chooses to transfer the rights to their works should, by law, force a shorter term.

      But by so doing, it would lessen the value of the creation by shorten the period of exclusivity. Why should that be forced on a creator?

       

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    Rekrul, Mar 20th, 2013 @ 3:50pm

    Throughout the hearing, she repeatedly emphasizes her old line about how copyright is "first for the author" and then later for the public.

    I'm shocked... that she even mentioned the public. Seriously, find me one person in the government today who doesn't believe with all their heart that the entire purpose of copyright is solely to benefit the copyright holders.

    Copyright has been used this way for so long that any other definition only exists on paper now.

    Elsewhere, she mostly just focused on how things were "broken" and needed to be explored -- but held off on making specific proposals. That's a perfectly reasonable position to take, but it's worrying that there's little to no discussion about why the copyright system is broken.

    That's easy; She feels the copyright system is broken because it doesn't give the MPAA/RIAA everything they want.

     

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    Shmerl, Mar 20th, 2013 @ 4:00pm

    So she admits that DRM is an innovative... form of making money devised by DRM makers? Since it benefits no one else really. DRM hurts users, DRM hurts distributors. Yes, it hurts them, since it degrades the quality and usability of the content and reduces potential paying user base. All for the sake of extra profits of those who sell DRM solutions? Is this what she says is required for functioning copyright system? I don't see any relation really. And of course she didn't even bring up the discussion of whether DRM is acceptable in the first place since it's an unethical practice.

     

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    Chosen Reject (profile), Mar 20th, 2013 @ 4:03pm

    Furthermore, she insists that DRM is a required part of a functioning copyright system.
    I agree. It is a required part. The part it plays should be as follows:

    You can have copyright, or you can have DRM. Pick one.

    Copyright requires that your works become part of the public domain at the end of the term (I hold out hope that someday that will actually happen), while the other is an attempt to keep that from happening (see DMCA anti-circumvention clause). So any functioning copyright system needs to mention DRM as a part of the law. You get one or the other, but not both. If you choose DRM and it gets cracked, too bad.

     

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    crade (profile), Mar 20th, 2013 @ 4:04pm

    That's true, DRM can be innovation. You can find great new ways to stop things from working. In the same way that someone could come up with an "innovative" plan to send us back to the dark ages.

     

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    Eponymous Coward, Mar 20th, 2013 @ 4:32pm

    "She's absolutely correct that these two things can and should be aligned, but those things are only aligned when you put the public interest first and then look to see how to create the best incentives following that."

    The first step forward is to recognize that authors are part of the public, not a seperate and distinct class of their own. Granted specific authors hold specific rights over specific works that other members do not share in up front, thus that makes them a seperate and distinct sub-class, but they too share in the creative commons and all those past works that transfered into it. This is how you align authors and the public; by enabling authors to build off those creative commons by allowing works to move into. This is a cycle, when allowed to function, benefits all like water evaporating to become rain. Instead what we have now is a system broken by large conglomerates trapping water and arguing for their right to sell it back to us at inflated prices in a time of draughts...

     

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    Anonymous Coward, Mar 20th, 2013 @ 5:07pm

    She is an IP extremist, like I said from the beginning. Once an IP extremist always an IP extremist, it's very rare that they ever convert once they have lost all moral considerations and only seek to serve corporate interests for their personal benefit and to maintain their jobs in office.

    Don't be fooled if she 'cooled off' a bit due to public pressure, she is still an IP extremist. She needs to be forced out of office and the USPTO needs to be disbanded and IP law needs to be abolished. I don't care about her job and what jobs at the USPTO will be lost consequently, I don't care that politicians and other administrators will lose their revolving door jobs and perhaps their campaign contributions, these laws work against the public interest and should no longer exist.

     

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    Anonymous Coward, Mar 20th, 2013 @ 5:49pm

    Perhaps "broken" is a lift from actual testimony. Clearly it is not in any form presented in Ms. Pallante's prepared remarks. Video link available?

     

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    Anonymous Coward, Mar 20th, 2013 @ 6:06pm

    I have read scenarios in the "future history" section of one alt history site where file sharing, for non commercial use, becomes legal. It makes good fodder for alternate history scenarios, but I never thought that anyone would really serious suggest the idea.

     

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    Anonymous Coward, Mar 20th, 2013 @ 6:13pm

    She seems to send mixed messages on streaming and piracy in general. One the one hand she appears to want to make it a felony, but on the other hand make it only apply to those who do it for commercial gain.

     

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    special-interesting (profile), Mar 20th, 2013 @ 6:14pm

    Quote from Maria Pallante; "I've never thought that copyright inhibits innovation."

    My comment; Duuuuuh. She must already be the target of special interest pressure.

    Where is the awareness of social and cultural effects on copyright? Nothing about the public needs were even mentioned in her 'updating copyright' speech. Its like we don't exist if we aren't holding 1000 copyright claims. In any way does her proposals benefit society (at large) and the culture inter-shared between us just being the natural humble social animals are?

    We talk and share ideas and concepts. We drink water and breath air in much the same way. What we really NEED are more formats to expand the methods and ways we can share such ideas and concepts.

    Anyone who claims that DRM is a good innovation has not actually been burnt by it yet. (the count is millions and growing) Not all innovation is helpful to the creation of new original-work and DRM is definitely not one of them.

    Obviously Ms Pallante did not read my late posts commenting on her speech. DRM is, in fact, a guaranteed way to lose knowledge and culture. Its a lose-lose situation benefiting only some unknown monopoly entity.

    https://www.techdirt.com/articles/20130318/11114922368/more-details-copyright-register-ma ria-pallantes-call-comprehensive-forward-thinking-flexible-copyright-reform.shtml#c786 the usual wordy but different in perspective approach. It was fun to dig into. Covers almost all I would want to say.

    “,make the public performance right a felony, rather than a misdemeanor,” This sends so many shivers down my spine. As if free speech and Fair Use isn't in danger as it is. (please read my comments on public performance in the link above) Throw this woman out of office NOW please.

    Lately my mantra for copy-wrong updating has been that; Everyday use and Fair Use of copyrighted media should be the norm and NOT the exception. Think about it. In no way should using copyrighted media be involved with criminal let alone felony law. These are civil matters only and should stay there.

    It goes right along with the concept that original-works protection terms being much less than the lives of the audience.

     

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    Anonymous Coward, Mar 21st, 2013 @ 2:45am

    in other words, as suspected, having the ideal opportunity to put forward ideas to mend the badly broken copyright fiasco laws, she has done the exact opposite and gone further down the road to try to implement, by suggestion to politicians, that ramping up copyright protectionism and penalties will be the best option. how the hell do these people ever get into such positions? how can she for one second reverse the actual and real reasons for copyright? this bit is troubling, because as we have seen so many times, all the politicians and law makers want to do is find easier and more ways to throw people into jail for copying what they have legally bought, but then shared or format shifted. all she has really done is carry on her previous role with the entertainment industries now working for the government. the reason she got the job in the first place, obviously.

     

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    Akari Mizunashi (profile), Mar 21st, 2013 @ 3:43am

    I hate to say it (no I don't) but "I told you so".

    No one who is in a leadership capacity regarding copyright has a clue about it. Hell, as she said, if we need a bunch of lawyers to figure it out, then how does she expect us to believe she has it figured out?

    I also want to mention a little rub here, as it's been bothering me for a long time.

    If TD wants to separate out the differences between the public's interest and the creator, then too it should focus on the fact consumers and advertisers are one in the same.

    We're the ones who pay for the commercial, so if a works is "bought" by advertising, such as the Superbowl, then by all rights we "own" it since we paid for it.

    This means we should fear no legal recourse for streaming, posting, copying, or hell, enjoying the Superbowl since we paid our "licenses" via advertising.

    Otherwise, we're all going to be sitting around going "how do we fix copyright when we can't even figure out how to define all the participants?"

    Because if you really think about it, everyone is in the public domain.

    To fix copyright can be done by including three simple words: WORK. FOR. HIRE.

    You know, like the rest of the world does it.

    Copyright just instills false entitlement that an author should have the right to earn money from a movie over the book he wrote, because they forget the movie is the ad for the book.

    Hell, even I bought Philip K. Dick's "Do Androids Dream of Electric Sheep?" after I saw "Blade Runner".

    Prior to this movie, never heard of him.

     

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

  •  
    identicon
    Anonymous Coward, Mar 21st, 2013 @ 7:53am

    The problem

    The problem I see (and this isn't just with Copyright - it's pervasive in the US Government) is that the politicians and bureaucrats see their mandate as "creating jobs". That's why they think that the authors must come first. Because they're the one's with "the jobs" (i.e. getting paid).

    The mistake is thinking that their mandate is creating jobs. Their mandate should really be "create a market". The jobs will flow into that. When you think from the perspective of creating a market, then it's obvious the public comes before the authors.

     

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


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