Andrew Foster’s Techdirt Profile


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  • May 5th, 2011 @ 9:41am

    Re: Re: Re: Re: Re:

    Well, to indulge the (missed-the-point) slavery analogy, you're absolutely right that if slavery shouldn't exist then it should be abolished.

    So you should work towards the abolition of slavery - clearly. But if the overwhelming majority of people will not yet take seriously any proposal to abolish slavery, then campaigning to abolish slavery is a counterproductive, time-wasting way to work towards the end goal. That is my point. Maybe you're right and IP should be abolished, but shouting about that while no-one will listen is far less effective than shouting about gradual reform that makes people pay attention.

    I haven't somehow failed to see that advocating full abolition might in the meantime achieve weaker IP laws (please appreciate that we disagree but I'm not stupid). My point is that if we advocate a gradual loosening of the current laws then there's a case for opponents to answer; if we advocate the total abolition of all IP then they can laugh off the "freetards" who don't understand how the real world works.

    We obviously disagree on whether there is a public appetite for the full abolition of IP. You think everyone will suddenly get on board with abolition if we keep doing exactly what we've been doing; I don't. I can tell I'm not changing your mind but do remember that it's very easy to read only Techdirt, Lessig, Boyle etc and convince yourself that everyone agrees with you... but I really don't think everyone does. Don't get me wrong, I AGREE with you on the need for less IP, but I think it's very naive to believe that everyone else is suddenly going to take seriously proposals for its abolition. Frankly I'd say the state of our current laws is pretty clear evidence that there is next to no broad appreciation among the public or among politicians of the dangers of IP.
  • May 3rd, 2011 @ 8:57am

    Re: Re: Re:

    No, I did mean to suggest that your reasoning ignores the impact of the status quo.

    My point was that if you imagine we can create an ideal world, starting with the void and writing laws from scratch, then the question of "What law should we implement?" can be reasoned out in the way you've done.

    But given that we can't, and we have to work forward from the way things are just now, the ideal course of action has to take account of where we are standing today. That is, we have to consider the impact of the status quo, on the question of how the law should be proceeding.

    I think it's probably a little shortsighted to suggest that the transaction cost of abolishing IP would be borne only by the content industry.

    Consider for example (the status quo:) how ingrained the idea of copyright is in public consciousness. To get support for abolishing it completely, you'd need a massive and expensive re-education campaign, and that's even if you pretend "re-education" can succeed. Consider that (the status quo:) the content industries have massive funding, impressive lobbying expertise and are well-versed in persuading the public of how essential copyright is.

    I think that, taking account of the status quo, there is at present absolutely zero prospect of successfully abolishing the IP system outright. And I think most people with a grounded view of the matter say the same. So arguing for it is not just a waste of time and energy that could be better spent achieving real change, but it's also counterproductive - it just makes it even easier for the content industry to paint advocates of better copyright as clueless and out-of-touch with reality.

    Much better, I think, to advocate gradual change towards a more effective system.
  • May 3rd, 2011 @ 5:35am

    Let's not parse the report beyond all meaning...

    No one is rejecting the proposition that copyright should be limited with a system of exceptions. What the report does, as far as can be gleaned without seeing it, is come out in favour of the UK's system of fair dealing rather than fair use. That is, not a set of relatively-amorphous principles determining what "infringements" might let the defendant escape a judgement for thousands of dollars after a long court battle, but rather a framework of specific, well-defined exceptions (i.e. you can copy with impunity if your purpose is on this detailed list of purposes).

    There's less room for judicial interpretation, so it's less flexible because it generally requires legislation to add new exceptions... but by the same token, it absolutely does reduce litigation by virtue of its being far more certain. That in turn means it's far more reliable, which means a "fair deal-er" can go ahead and create without needing enough in the bank to fend off a potential lawsuit. It means far less of the infringement-intimidation, bullying tactics that everyone hates, because litigation is generally NOT a necessary step in exercising users' rights.

    That's what's being proposed here - that the UK stick with the well-defined and reliable system rather than move to a more flexible but less-certain one.

    Indeed, from the linked article it actually looks like the review recommends broadening the system of exceptions - among other things with a format-shifting exception (long overdue for the UK) as well as proposals for access to orphan works, which I think would put it actually ahead of the US, unless anyone can correct me on that?

    Let's not focus on one miniscule clause and lose the bigger picture of what is, I think, looking like a victory for good copyright reform in the right direction.
  • May 3rd, 2011 @ 5:16am


    @ AC:

    A: IP causes many problems.

    B: The burden to justify their existence has not been met. It hasn't even come close to being met. Since the burden is on IP proponents to justify the existence of IP and that burden has not been met, IP should be abolished.

    I think you have a very strong argument there, but I do think it ignores the impact of the status quo. In an idealistic world constructed from scratch, yes, there might be no case for IP. But our starting point is the real world, where we do have IP and where there is a massive transaction cost to the change. "Abolishing" IP per se isn't really feasible as a proposition, given the lie of the land.

    I also happen to think IP CAN be a good system when properly limited, though (needless to say) it's not at the moment.
  • Apr 28th, 2011 @ 12:00pm

    Thirty "in recent weeks" is probably nonsense

    Another quick point - the BBC report ( refers to about thirty injunctions currently in force, so it seems pretty likely that the Daily Telegraph's quote about thirty being granted "in recent weeks alone" is an after-the-fact inflation of the figures, whether it's deliberate or careless.

    It's also relatively obvious that (as the BBC admits), by their nature, it's near enough impossible to say how many super-injunctions are being granted, so any claims involving hard figures should probably be taken with a pinch of salt.
  • Apr 28th, 2011 @ 11:54am

    Re: No such thing as UK law

    Heh. I take it you're not from the UK? That's definitely wrong, mate, sorry!

    I'm a Scottish law student; it was a separate legal system until 1707, when we joined with England. The respective common-laws were kept separate (meaning "the laws that come out of the courts", roughly), so you might be right that this particular judgement only applies in England and Wales - but there is definitely such a thing as UK law.

    The UK parliament can pass law for the whole UK on a specific set of matters, namely the ones that aren't assigned to the devolved (e.g. Scottish) legislatures - things like defence and IP law, as it happens. The UK's Copyright, Designs and Patents Act 1988 is UK law.

    Truth be told, Parliament legally has impunity to make UK-wide law in any area, including those supposedly passed down to the Scottish Parliament etc... but it would be political suicide to do it without permission, for obvious reasons.
  • Mar 11th, 2011 @ 6:44am

    Gurry wasn't lacking a "because"

    I don't think Francis Gurry's speech was missing a because. It's right there in the quote you've used.

    Free market = bad because The fittest business model may [not be] the one that achieves or respects the right social balances in cultural policy.

    Whether you think it's correct or not, that's a pretty straightforward argument. The business model best fitted to an unlimited-copying world MAY not be the one that ensures the cultural output we want. You might think that in fact that's not the case, but it's still rather disingenuous to suggest that he's making unsupported statements when he's clearly giving the basis as above.

    I also, although this is a separate point, happen to think he might be right. If the "fittest" business model turns out, as you've argued in the past, to mean a strong focus on connecting with fans, then maybe survival of the fittest business model will mean a glut of the kind of creativity well-suited to connecting with fans. Maybe the music industry will be swamped by whatever it is that appeals to teenagers and students, because they've got the free time to engage in the communities that spring up. So suddenly the music market is flooded with ambient shoegaze rock - and other forms of creativity will suffer (because maybe their would-be supporters are less suited to the connect-with-fans business model).

    We've seen exactly that already, in that all the money in the current music industry goes to creating music that's suitable for the radio. The vast majority of what reaches the public is easy to like after two listens and just like the last thing that sold well. That's the "fittest" business model for the current framework, and it's hardly the best way to foster a rich culture.

    You might think the example above is ridiculous; it doesn't matter. That was the first thing that came into my head. The point is that it's completely valid to say that the fittest business model for a given environment may not be the best one for our culture.

    And that holds true even if the environment in question is an unlimited copying one. So I think it's entirely appropriate to suggest that the free market MAY NOT be the most desirable solution.
  • Mar 10th, 2011 @ 3:48am

    There's no copyright in the costume

    The question of whether it's a work-for-hire isn't relevant for this one, as far as I can see. If it was a work-for-hire then the copyright would belong to the guy's employer, yes, but (although I haven't read the judgement) it sounds like the court was saying there is no copyright in the work.

    That seems to be why Lucas has fallen back on an argument about implied terms in the contract. Whatever you think of implied terms, they're a well-established part of UK law, but the court is generally pretty good about only using them when it's actually the sensible thing to do. So it seems this one will just turn on whether they decide to imply a term in this particular case.
  • Jan 12th, 2011 @ 2:15am

    Amazon is still selling the book...

    Not sure if they've decided to reinstate it after the fuss, or if reports of it getting removed were just wrong in the first place, but the book definitely seems to be still, or back, on sale at Amazon...
  • Nov 21st, 2010 @ 8:31am

    Re: Re: Re: Re: Okay.

    I'm absolutely concerned with the ethics of the law, yes.

    My objection wasn't that you shouldn't discuss ideals for the law; it was that you seemed to have been talking about ideals while suggesting you were describing black-letter law. I never suggested you weren't entitled to talk about what the law should be (but I admit it's much easier to win the argument if you act like that's what I was saying).

    The example you cite is someone being sent to jail (later reduced to community service) for phone-recording new-release blockbusters and uploading them to sharing sites. Not simply for "pointing their iPhone at a cinema screen" as you suggested. The latter is the one that's suggestive of a totalitarian copyright regime, and the latter is the one I was questioning. I've never contested for a second that recording blockbusters at the cinema would land you in trouble (but again, I can only assume, well done for proving wrong the argument that I may have been advancing in your imagination).

    Copyright didn't start by being about copies, although that might have been its initial extent for practical reasons. It wasn't about "copies" as such: it was about ensuring return for authors who create works. That's been very, very well-documented. It still is about exactly that - the extensions to include hosts of sharing sites, to criminalize big infringers etc are all still done to the end of ensuring remuneration for the creators of the content.

    Whether they go too far in doing it is a completely separate question (and yes, of course they do, before you take the initiative and pretend I'm saying otherwise) but the point is that "making available" is restricted as the logical extension of the purpose of copyright. Not as some great leaping perversion in what it's used for.

    I have absolutely no truck for the "It's a slippery slope" argument that you seem to be advancing, and I mean this in very general terms - present me with an objection to the proposal we're talking about, not an objection to invented proposals that might come after it. Object to those proposals when they're raised, and that's where we'll stop. That's how you find the right point of balance.

    Great point on the libraries thing though - again, good work on demolishing an argument I hinted at for precisely zero seconds. I'm sorry to be rude, but I'm just getting tired of it. It's nonsense so please stop.

    When you talk about presumed guilt, I assume you're referring to an appeal after you've already been presumed innocent and proven guilty regardless, in which case it's a pretty silly point dressed up in misleading language. Unless I've misunderstood? Could you possibly clarify?
  • Nov 19th, 2010 @ 5:03pm

    Re: Re: Okay.

    I don't think you're going to encounter much resistance on this blog when you say that "copyright is not a law of the people."

    Your distinction makes a lot of sense, but to be perfectly fair, what you said was less "should/shouldn't" and more "a copyright infringement ONLY takes place where xyz... simply instructing a server to make copies on demand doesn't actually infringe copyright... it's only when the copy is made that copyright is infringed."

    All of that is, if you'll forgive me saying so, wildly inaccurate as any kind of comment on the law. You may want to make clear in advance (rather than after the fact) whether you're giving legal advice or postulating ideals.

    I believe the rationale behind the "making available" restriction is that in making the work available for free you facilitate and encourage the widespread committing of an infringement that's practically impossible to police effectively after the point of making available. There's also in practice next to no non-infringing use that results from it. Therefore, while we accept the legitimacy of restricting the making of the copies that will follow from it, it's legitimate to restrict the making-available.

    If you can point me to one example of a person being imprisoned merely for pointing their iPhone at a cinema screen, I'll be surprised. But I do like surprises.
  • Nov 19th, 2010 @ 9:01am


    The UK law on this is in the Copyright, Designs and Patents Act 1988 (CDPA). It's available here:

    In the UK, making available to the public for download IS an infringement of copyright. It's not debated: section 20 CDPA.

    [I]t should be obvious that a copyright infringement ONLY takes place where and when the copy is actually manufactured.

    In the light of the above, that's not right. There are also many, many other copyright infringements that don't involve actual copying: public performance of a work (s19), importing an infringing copy (s22) or unauthorised rental of legitimate copies (s18A). There's more if you want to read the CDPA.

    Simply instructing a server to make copies on demand doesn't actually infringe copyright (unless you want to include aiding, abetting, inducement, conspiracy, etc).

    The UK largely does. See CDPA sections 22-26 (notably on providing the means to make an infringing copy, permitting the use of premises for an infringing performance and more).

    With regard to all the points about copies necessary for the function of the internet, UK law provides that none of these will be copyright infringement: s28A.

    And it's not "football", it's soccer.


  • Nov 19th, 2010 @ 12:05am

    (untitled comment)

    The $100,000 number came from the request -- it was never a condition set by the court. The court gave no indication that there was any different rule for those making less than $100,000.

    I agree on the whole that transparency's a good thing, but let's be honest that if the school had genuine privacy concerns and the only law on the question was that salaries over $100k had to be disclosed, they were perfectly right to propose disclosing only salaries of $100k-plus.

    It's not for the court to rule on questions that aren't before it and so it's generally very "fast-and-loose" to suggest one thing or another from the fact that they don't.

    Remember that they're giving out highly private information, that's personal to their employees. I think they would probably be lacking if they didn't exercise caution in doing that.

    I'm not saying the law shouldn't change, but nor should we demonize the school at present for disclosing to the extent the law requires and no further.
  • Nov 18th, 2010 @ 11:37pm

    (untitled comment)

    All this Government imposed monopolies and such crap, it does not happen, patents and copyright do not grant any such thing as a monopoly.. and, im sorry to say you would have to be stupid if you think that is the case.

    Any and every textbook on this stuff acknowledges that copyright is a monopoly right. Every single one. And try not to be rude to the people who disagree with you.

    Ask yourself this: I write a book - from the moment I finish the last page, who else has the right to sell that book without my permission?

    The answer is absolutely no-one. My copyright over what I've created gives me a monopoly on the distribution of that book. No-one (no third party with a photocopier, no publisher) can sell or distribute the book unless I decide to grant them a license.

    You might be saying "Well of course they can't - you wrote the book," and that's another point, but the question of whether a monopoly is morally right has no bearing on the question of whether it legally exists.

    By your own example, anyone who wants to buy the book I wrote would have to come to me to buy it. There is absolutely no-one else who can sell the book, unless I decide to grant them permission. If anyone else started selling the book I could have them banned and demand the money they made be paid back to me.

    The examples of "monopolies that are there because of a government granted right" you're looking for would be every single copyright granted in the last hundred years, for starters. They're government-granted because they're totally artificial and purely created by the law.

    Yes, lots of different places will sell DVDs of whatever Hollywood blockbuster - but the only reason they can do that is because the copyright holder has seen fit to let them. Copyright is a monopoly right.

    I also think you're wrong when you say that a monopoly only exists if you have to buy a particular item. It's entirely possible for one company to have a monopoly on the sale of bread (for any reason you want to imagine), even though you could theoretically decide to live without bread. That point is that if you wanted it, you would have to go to source X.

    (I now see that Mike Masnick has dealt with this since I started writing, which is what I get for putting together an essay... but why stop at "labouring the point" when you can work it to death, I always say) xxx
  • Nov 10th, 2010 @ 8:32am

    (untitled comment)

    There are a ton of business models for movie making. Even if the movie can be ripped off. Certainly, there's value in being an "official" distributor of the movie (witness the difference in prices between *identical* generic drugs and brand name drugs).

    Though I'm not suggesting there's no value at all in being the "official distributor", I don't think this is great as a comparison. The simple fact is that the users of a given drug are all planning to swallow a mystery mouthful of chemicals, and the vast majority of them without any real understanding of what's in the pill or how it works. There's a massive amount of trust necessary in the product. Here, I suspect, lies a very significant part of the motivation to opt for the official distributor and avoid the cheap-looking substitute (even if, the users are thinking, it CLAIMS to be identical).

    That's simply not the case in the same way for, say, a DVD. There's very little trust necessary in buying a DVD, and once non-official copies are legal there's no reason even to suppose they will be inferior in any way to the full-price version. The factors that create official-brand loyalty in the pharmaceuticals industry are almost non-existent in the industries we're talking about here, and I don't think the comparison stands up to much scrutiny.

    This leaves the incentive to buy official, under the copyrightless system you're proposing, down to the new business models you've talked about.

    If you go see the official version of the movie, you get a discount on seeing the sequel -- or on seeing another movie with the same actor. You build up loyalty points. You offer options like the ability to be an extra in a future movie. Or to meet the star of the movie.

    The stuff you're proposing is really interesting, but even you must accept that, once non-official copies are on sale at fifty pence, uptake of the "official product" under a loyalty program would be drastically reduced from the level it's at now. There will always be a massive segment of the market who don't want to meet the stars or be an extra, but simply want to see the film and be entertained by it. They're instantly going to opt out of the version that costs two thousand percent more for the privilege of those bonuses.

    What's more, we already have a system of incentives for the official product in place much stronger than the one you're proposing - we made it literally illegal not to go for the official product. Look at how well the general public bought into that.

    (I'm also not presuming that loyalty rewards are the only possible business model, but I've yet to see anything more convincing proposed - other than state funding for intellectual creators, which has its own raft of problems.)

    I think the fact undeniably remains that the abolition of copyright, at least while these business models are the only alternative being suggested, will inevitably make the business of creating copyright content much less profitable. That can only mean less investment to fund the creators, and pretending otherwise seems naive to me. Anyone who's driven to spend extra cash by the prospect of creating copyright-free content could be releasing public-domain stuff already.

    On that basis I think the thrust of the article kind of dissolves - you've basically said that we shouldn't talk of balance because there's another option that will just be a bonanza for everybody. I don't think it's really been shown yet that that's actually true, and so reluctantly we fall back for the moment to looking for a balance.

    All of that said, I'm not even certain I disagree with you. I just think the argument needs to be tighter before we can call it watertight. It's a great article - I've just found the site and really like it. Cheers!

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