I always felt the argument against the hopper was weak. The hopper in function seems like an automated programmable digital VCR and the courts decided the non-infringing validity of the technology years ago.
I agree with much of the authors analysis. What I found most disturbing about the original ruling was percentage analysis used by the judge to come to a fair use determination. A percentage to determination is not in the copyright statute and I felt was judicial activism in the extreme.
"it's another win for transformative creations, even if it's one that is skewed to statutory factors rather than the concept of fair use itself."
Fair Use is defined by statute under U.S. law. The decision should be skewed to statutory factors. To use an arbitrary concept of fair use (in that each has there own definition if the statute were not used) would not instill predictability in the courts. However, the comments about where the image was appropriated sound like someones personal feelings and is definitely not in the statute. Nor does the new work having commercial value bar a fair use defense.
Sorry folks. "Whatever" is totally right on all counts and most still are missing the point. A recording is the preservation of a performance. The argument is, no one performs anything exactly the same and therefore that performance is unique and can be copyrighted. Anyone can sing a song but no two people will sing it exactly the same way. Perhaps if many of you view a sample as using someone's unique performance it might make more sense that you would compensate someone for using a recording of their unique performance.
" where the contention enters the picture is what happens when the artist(or more often their label) doesn't feel like they are being 'monetarily rewarded' enough, and decide to break out the lawyers/laws to 'fix' it."
I am not sure what being monetarily rewarded enough means. Lawyers get involved when someone breaks the law. I have not heard often "that business is getting paid 'enough' so I will break the law and acquire their product." A label is nothing more than a business that sells music. The monetary liability for breaking said law can be quite excessive and I believe should be adjusted. However,generally businesses exist to provide a service or sell a product in order to turn a profit, so it is only logical they would take action when something interferes with that.
I think the underlying issue Bono is addressing is, obviously, piracy. In that regard, I agree. The value of the artist in society is that they create art with intrinsic qualities that differentiate it from the creation of another. So much so that people desire to experience it and realize they themselves have neither the time nor talent to make this creation. To the artist maybe the art is spiritual or cathartic in nature. I believe we should monetarily reward the artist if we enjoy their art and to foster the creation of more art. If you truly enjoy an artist support them. Some approach art is if the artist is only "hocking their wares." However, many artist spend hours and years practicing their art and that has, in my eyes, a monetary value that society tends to devalue, especially in this digital age.
"YouTube is a major resource for video sharing in this country and it is wrong for YouTube to censor a video that has public value and news value."
No it is not. Youtube is a private entity, a company whose purpose is to make $$. They are not a government actor and have no duty to attempt to be one. They can refuse to host whatever they like. If the argument is they should lose ad revenue to play videos counter to their content policy because they have public or news value, I'm sure youtube would tell you go start up your own video hosting channel and stop trying to dictate their content. In addition, they might exclaim "we are trying to run a business here."
"It really doesn't matter how much YOU value your work, what really matters how much your customer is willing to pay for it."
Here is the crux of the issue. How much is the customer willing to pay for it by LEGAL means. I think to gloss over that the behavior as ILLEGAL is not intellectually honest and places the behavior in some neutral category. An article asking if what the guy did( break the law multiple times )is punished too severely based on morality? just the same as asking the question if infringement is morally wrong. Is that how we evaluate crime and punishment? No. My whole line of reasoning was to show we obey many laws that do not have a moral connection. In addition I outlined most people pay for intellectual goods. They don't have debates on how netflix or having cable effects the public domain.
"If that number happens to be zero for infinitely reproducible items, so be it."
Not if The number Zero is achieved by illegal activity. I am not bemoaning anything, especially not a price point conditioned by someone breaking the law. Why should anyone have to compete against someone breaking the law. Is that fair? Should we discuss in terms of equity or legality or morals? A justification for why they are breaking the law is a justification for ILLEGAL activity.
"If you really wanted to begin to restore my respect of copyright, you could start by lowering copyright length to reasonable time frames."
I totally agree but I am not willing to throw out the entire construct. I see it having way too many, real world commercial benefits to do so. Again, my ideas are not to persuade you to obey the law, like the law, agree with the law or be pro copyright. I before gave the caveat I express views of how the law operates now and how I deal with it on behalf of creators wishing to financially gain from their creations. I don't think obeying only the laws we like is how it's supposed to go. We all can agree that intellectual property isn't really property....that isn't really important to me. and it's not really that important to me whether you call copyright infringement "stealing" because I have already separated morality the argument. It's just breaking the law.
"Are you mixing up value and price? Because if they thought it had no value, why would they even click on it?"
We live in a capitalist so let us assume that they are related. I will leave it to you to give me examples. In a capitalist society, items of value generally have a cost associated with them.( and please don't give me examples of sunsets and kind words are things that are valuable, or a lover's touch, YOU KNOW what I mean :)
"Technology does not make ideas or expression any less valuable but many would make that argument.
Do you really see people arguing this? Because I don't recall ever hearing anyone say that."
If you get works for free isn't that what you are saying? The justification for pirating is that they are not loosing any money because it's just a digital copy that costs nothing. That is the justification, that is the argument.
"Creators have never been entitled to monetary gain."
Nope but under the law they are entitled to a fair shake at doing so. The person in this case was selling someone else's product for his own profit. Doesn't sound like they were getting a fair shake to me. Please understand, the views I express are not how I think things should be, these are the laws on the books. I see them as the means business is conducted on an everyday basis in the realm of media.
No. I believe most of society is not a good barometer for what we should do or behave in many instances. It would seem that you imply most of society thinks deeply about the function of copyright. I do not believe they do. To assume most of society knows what or how to pirate software or music or movies is a falsehood. Most people pay for downloads and don't even think "is it right that I could find a way to get movies and music for free, should I?" Or that they think "what would the world be like without copyright...." They just have cable or netflix or some other way to enjoy content. The thought that people on sites like these are representative of the general public is quite odd. I comment on these topics because it's what I deal with for a living so I am not representative of the general public either.
I believe most of society doesn't think art or creative works have value because they can click on a link on the internet and get it for free. The law says otherwise. Which begs the question if they had value before, ie a vinyl record, because the format has changed does it mean it has less value? No. That would imply that the value of a vinyl record lay in the vinyl itself, which we both know is not true. Technology does not make ideas or expression any less valuable but many would make that argument. Is that yours? Is your argument against copyright the creator is not entitled to monetarily gain from his/her creation because technology has made it less expensive to distribute? If that is the case then should all computer programs be free? Copyright does benefit a select few, generally the creator or someone who has PAID the creator to own the expression of the idea. Should you or anyone else have it for nothing? If it has no value why do you want it? if you want it why are you not willing to pay for it?
It is not a problem. If you wish to separate the two, it becomes very simple. If you don't wish to face the penalties associated with breaking a law, or bemoaning the punishment, don't break it. A law is meant regulate certain behavior so to dissuade certain behavior has a negative consequence. Whether breaking the law is moral or not is a misnomer. We obey laws because we as a society have deemed it necessary to regulate certain behavior. Breaking the law needs no moral component so punishment for it needs no moral justification. If you break the law there are penalties.
I have been lambasted for using the morality argument in copyright infringement before. How fitting it is brought up by the author. IS it immoral to break the law? Is it immoral to break the law after breaking the law, getting caught, punished and breaking the same law again? Is it immoral to sell something that belongs to someone else for your own profit? Are speed limits moral? Is printing counterfeit currency immoral? Is not paying your taxes immoral? Is it immoral to default on a loan? I have no idea but you can spend significant time in jail for breaking the law.
I found this site a few years ago and generally read I.P. related articles. I often compare the coverage on this site to others and comment hoping to add to the discussion. I have learned to appreciate many issues in I.P. from a non-practitioner perspective and that is incredibly important to me.
Thanks I was familiar with the the majority of the articles you sited. My point was, it is not an industry is trying to destroy another. These are negotiated licensing rates and they are trying to make the most money. If Pandora and Spotify are at the mercy of simple supply and demand economics. To be more profitable they will have to generate more money ( I think it rather obviously, charge more for subscriptions or create more ad revenue).