Disingenuous Mike...They're not bailing out the RIAA...
Look, The RIAA is a non-profit organization. It isn't them getting "bailled out"...
Also, the RIAA has nothing to do with performance rights...That's ASCAP and BMI. come on!
On the substantive issue, I don't know that this law is a good idea. I'm also not sure that it's a bad idea.
We have a model here in Canada where copyright collectives apply to the Copyright Board for tariffs on different types of uses. Radio broadcast (as well as Internet radio broadcast) are covered by tariffs and wouldn't you know it, our radio stations are still alive!
The reason why this may not be the worst idea is because while imperfect (and I have my criticisms of them), collective licensing societies usually get a large part of their revenue to the artists. These royalties are accrued independent of how favorable or unfavorable your record deal is.
Collectives like ASCAP and BMI should be able to collect for the performance of their catalog on the radio. I mean...why not?
Why would the RIAA be lobbying for a "Performance Rights Act"? THEY DON'T COLLECT PERFORMANCE ROYALTIES!
You have to inform yourself a little better Mike. This one is just sad...
I know DRM is a bad word on this site, but it really isn't evil. Unless you don't believe copyright should exist, it's illogical to hate people for using technological tools to protect their work, as long as that's all they're doing.
I'm not defending the Sony RootKit fiasco. However, when content distributes use DRM in a responsible way and do nothing more than protect the rights they should legitimately have, I don't see a problem.
The problem for me with reference to DRM is on a legislative level. Here in Canada, the content industry has successfully lobbied the Federal Conservative Government to include strict anti-circumvention rules. Under Canada's new copyright law, it is illegal to break a DRM for most otherwise legitimate reasons such as modification for people with perceptual disabilities. There are only 3 or 4 very narrow exceptions that have mostly to do with encryption research and reverse engineering for cross platform compatibility.
Under the new law, it is still an infringement if you break a DRM for an otherwise lawful purpose such as Fair dealing, format shifting or time shifting.
These are the problems I see with DRM and as I said, they're on the policy level. Responsible use of technological protection measures is not wrong and anyone who says otherwise just doesn't respect the rights of creators.
Yeah...that sucks. Especially because I've had some great conversations on here with some seriously intellectual folks. Like John Fenderson for example. We may disagree, but we had a great conversation that was nothing but respectful.
I agree 100% with the position of Mr. Pogue. Fear of innovation has hamstrung the content industry (except for video games) for some time now.
The thing is that the pirates have so much of a head start now that it can be difficult for the content producers and distributors to assure their product is paid for. It takes the right kind of DRM/TPMs.
The video game industry has been able to manage by incorporating online sign on DRM. You have to "log in" if you want to play. I think that model comes with it's own problems but it seems to be serving that community pretty well.
To my understanding, the e-book industry is running well too.
The film industry has to do something similar (or something else that will lock down their content while still allowing people to have sufficient freedom with the copies (or more accurately licenses) they purchase.
Again, in a world where most people don't see it as wrong (regardless of legality) to pirate a film, the reticence of the film industry is understandable. That said, they're only in this position because of their lack of a will to evolve in the first place, so I think we're back where we started.
"The expiration of "intellectual property" isn't the only reason why it's not real property. The very nature of the existence of copyright means that it can't be treated like real property. There's a very real distinction between copyright violation and theft. Real property can be stolen. Copyrighted material can't be. Physical media that bears a copy of copyrighted material can be stolen, but the charge is for the theft of the physical object, which can be property, rather than for the violation of the copyright."
No one ever said IP was real property (or at least I didn't). That's an indefensible claim...because it's wrong.
That, however, doesn't mean that it isn't property at all. You're right when you make the distinction between real property and intellectual property in that the former can be stolen and the later can't. However, that distinction is much less important than you give it credit for. Whether I steal an object belonging to you or infringe your copyright and reduce your profits, I'm gaining something to your detriment. Jefferson's famous quote about lighting your flame by my taper aside, there are similarities as well as differences.
To say that because infringement isn't theft because IP isn't property is to assume your conclusion. You've identified a difference between real and intellectual property, yes. But again, no one was saying they were exactly the same.
When copyright expires, barring retroactive extensions by Congress, it cannot be exclusively retained by one individual or corporation or trust anymore."
Yes, this is also true. But you fail to explain why this means that it isn't property. A lot of real or personal property is not forever. We often consume things that we own, like food. Does that mean that we don't own the food we buy at the grocery store simply because it isn't permanent or (often) transmitted by will?
You've once again assumed your conclusion by drawing a distinction. Again, no one said IP was EXACTLY like real property. If it was, there would be no need for a distinction.
"It's not artificial that so called "intellectual property rights"/government-granted monopolies expire. The expiration of the monopoly is a natural trait since the inception of such artificial legal constructs and their duration has only been artificially inflated by Congress to protect, among other supposed assets, Mickey Mouse."
I don't know what you were trying to prove here but I don't think it worked. As you seem to agree, the right itself is "artificial", right? So, as much of intellectual property is statutory creation, those same statutes determine the life of those rights. The same statute that "artificially creates" the right "artificially ends" the right. If this is wrong, then you haven't made a good case out for why. either way I think this is a largely unimportant point that isn't worth arguing any further...
As far as the taxation ans eminent domain arguments, I wasn't too sure what you were getting at.
I know you said you've read the literature. Maybe you should read it again, or different articles. All you've done is assume two conclusions and attack a silly distinction between "artificial" and "real" rights (whatever that's supposed to mean considering real and personal property rights are also determined by law, albeit usually common law in conjunction with statute...)
I've discussed this with colleagues and friends before.
I don't feel like weighing in because it's really tough and my comment would take up way too much space on this page.
I would recommend, however, that if you're looking for a counter argument check out Professor Michael Sandel from Harvard. There are probably YouTube videos where he discusses exactly this. I read an abstract of a paper by him once. Sorry...don't have a link... :(
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I understand completely! Well articulated!
It seems then that your bone is less with the fact that these rights exist. Rather you're upset that this doctrine developed on it's own and has mutated into something you don't like.
Still, trademark law and publicity rights are two different things. It's inaccurate to say that right of publicity is trademark as applied to people. Copyright law could cover trademarks...but it doesn't, because it's copyright law.
I don't want to lecture you on law and quite frankly you seem to have a pretty good understanding as it is. There are finer points, however, that make the distinction between the two doctrines valid.
Still, your objection to the current state of the law from a substantive viewpoint is no less valid. On your objection as to the structure of the law (trademark vs. right of publicity) I would ask that you defer to me :)
The only thing i take issue with is the following:
"Copyright is supposed to serve society. I really don't see how protecting a family's ability to make money off a dead relative's legacy serves anyone but that family"
You're clearly far too bright for this to have been genuine. Maybe it was a minor brain fail...
Copyright IS supposed to serve the public. And you're right; in a reductionist way, the family's economic interest doesn't have anything to do with society writ large.
But that's not what the copyright bargain implies. If a right is denied in a specific instance, and that instance becomes law, creators in general will have less incentive to create.
This isn't directly applicable here because copyright law hasn't been invoked by the Chamberlain Estate. Right of publicity isn't quite the same thing.
Now, if the judge throws out the Chamberlain Estate's claim I don't think people will be less motivated to play basketball. That would be an absurd conclusion. However, if a law is to be effective and predictable- so that society may base its actions on what they believe to be the state of the law- it must be evenly applied as much as possible.
Now we're getting into the nature of common law reasoning and adjudication...Not the original topic of discussion and probably uninteresting to a lot of people reading the thread.
I would love to continue this exchange one on one if you're game!
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Ok. now, as a Canadian, my knowledge of the American constitution and your revolution is limited (although I think I may know more about it than many Americans :)) so please correct me where I'm wrong.
To my understanding, the US constitution was written by your founding fathers (Adams, Jefferson, Franklin, Hamilton...). The revolutionary war was over. A government was formed.
Your declaration of independence, on the other hand, was written by people (hence "we the people") who were up until that point still British subjects.
If I'm correct, then I fail to see how the constitution was not a law. More specifically Article 1 section 8 clause 8 (the IP clause) is law. metalaw in the sense that it is paramount over all other laws and even defines them, but law none the less.
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Perhaps I'm just not good enough at explaining this. I can't really put it any other way.
The design on the lunchbox is a trademark. It's a trademark that uses the image of Mr. T. Even if it weren't on a lunchbox (not associated with wares or services) it would still attract protection under the right of publicity.
Also, the "entertainer" thing doesn't qualify him. He isn't a walking trademark (even though he really is...love Mr. T...)
For a deeper (yet not overly scholarly) explanation I recommend "Intellectual Property Law" by David Vaver. He's a well respected professor here in Canada on IP. His book may shed some light on this for you.
"I don't think that any right "trumps" any other. Rights conflict with each other all the time, and when they do then a balance must be found."
I agree 100% John! I think we're singing the same tune here.
I still take issue with your definition of rights. It isn't that it's wrong or anything. It's just (in my humble opinion) unduly restrictive.
By "right" it seems you mean constitutional right. the Constitution (in Canada and I imagine most everywhere) is a law. In fact, it's the supreme law under which all others must comply to be valid. If not, they are deemed unconstitutional and struck down or amended.
SO it seems your distinction between right and privilege is more temporal than anything. After all, the government passed the constitution (a law). A later government passed the copyright act (or whatever state statute houses the right of publicity in a given jurisdiction).
So rights and privileges (by your definition) are both "powers" (for no other reason than choosing a word other than right or privilege). The difference between them is that the former is a law enshrined in a constitutional document and cannot be easily repealed (and is therefore applicable to all, even the government) and the other is a normal law that may or may not be applicable to the government and may be repealed by normal legislative process.
I don't know. If you think the doctrine is a bad one that's cool. If you think it's bad policy or unethical that's cool too. Write your member of congress!
Personally, I don't think it's "wrong". It's capable of being interpreted in ways that produce socially undesirable effects. But the doctrine itself isn't to blame for that.
One thing is sure. The doctrine isn't "wrong" if wrong means incongruent with the other domains of law it overlaps with or rubs up against. I hope the Mr. T example cleared up why trademark is ill equipped to deal with this question.
Beyond that, I respect your opinion on whether or not it's a "good" or socially congruent law.