Karl 's Techdirt Comments

Latest Comments (4260)

• On the post: The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use… And Scaring Him Into Staying Quiet About It

  

  Karl ( profile ), 25 Apr, 2012 @ 07:03pm

  Re: copyright permissions

  the rights to photos are almost always held by the photographer
  
  That's not true all that often, actually. If this was a work that was commissioned for a magazine, for instance, then the magazine would hold the copyright on the image. Also, in order to get published, many magazine/book publishers require the artist to assign the copyright to the work.
  
  This is even more true with works from 50 years ago. Prior to the 1976 Copyright Act, you could not divide up the rights to a work; every work had one single "proprietor" who held every single right to that work. It's even more likely that it isn't the artist who holds the copyright; assigning copyrights to publishers was even more of a standard practice back then (making the publisher the sole proprietor).

• On the post: The Band's Ex-Manager Accuses Reddit Of Profiting From Piracy In Debate With Co-Founder

  

  Karl ( profile ), 25 Apr, 2012 @ 07:53am

  Re: Re:

  here's how pirates profit from adwords
  
  This is a site by the person who produced "And Then Came Lola", and who does not even remotely understand how the web works. It's a rabid anti-internet, and specifically anti-Google, rant site. For example, she suggests all of Google's profits come from AdWords profits from pirate sites. Seriously.
  
  Citing this site as "evidence" against piracy is like citing the Turner Diaries as "evidence" of a government conspiracy.
  
  (As a side note, I had to Google who put up the site, because there's no "About" page on that site at all. Not really a sign of confidence when the owner of the site is afraid to identify themselves.)
  
  In the meantime, a search on The Pirate Bay for the movie revealed a grand total of four torrents, with 19 seeders and 7 leechers combined.
  
  And IMDB users rated the movie 3.5 (out of 10), with the first user review calling it "one of the worst re-workings of a foreign film I've seen."
  
  So, yeah, not really convinced piracy is the problem.

• On the post: The Band's Ex-Manager Accuses Reddit Of Profiting From Piracy In Debate With Co-Founder

  

  Karl ( profile ), 24 Apr, 2012 @ 08:37am

  Re: Re: Re:

  using selective stats like "transactions" instead of sales
  
  "Transactions" are sales. If you're talking about the decline in profits, it makes complete sense to talk about the decrease in revenue per transaction. That's the case with music: in the 1990's, if a consumer liked a song on the radio, she had to pay $18 and buy the entire CD. That same consumer can now pay $1 and buy only the song she likes.
  
  That has nothing to do with piracy, yet piracy is touted as the reason for the labels' loss in profits. If anyone here is "cooking the books," it's the RIAA.

• On the post: The Band's Ex-Manager Accuses Reddit Of Profiting From Piracy In Debate With Co-Founder

  

  Karl ( profile ), 23 Apr, 2012 @ 08:02pm

  Re:

  It's just so funny how hard you have to cook the numbers
  
  Yeah, those bastards at the Bureau of Labor Statistics, PricewaterhouseCoopers, iDATE, Gracenote, and the UNESCO Institute for Statistics really love to "cook the numbers." Obviously, they're far less trustworthy than cherry-picked op-eds by newspaper staff writers.

• On the post: Bonus Sunday Post: Help Dan Bull Get His New Freely Distributed Song On The Charts

  

  Karl ( profile ), 23 Apr, 2012 @ 04:27am

  Re: Re: Re:

  [He] is effectively approving of and condoning TPB as a valid, and legit source for content.
  
  Or, another way to think of it is that he is effectively turning TPB into a valid, and legit source for content.
  
  Isn't that what you want? To eliminate "rogue sites," and turn their users into legal consumers? Well, here's one way to do it.

• On the post: Too Much Copyright: This Generation's Prohibition

  

  Karl ( profile ), 23 Apr, 2012 @ 03:14am

  Re: Rational basis

  Carl [sic], rational basis review is extremely deferential.
  
  It may be an ineffective limitation. But it is still a limitation under the law.
  
  And it would be pure madness to say that it's not the intent of copyright. No court ever said that. They have all consistently said that copyright benefits the public first and foremost.
  
  The theory is that benefiting authors will also benefit the public. Those benefits are not at odds, but reinforce each other. Fair enough. But if anyone says the benefits to the author outweigh the benefits to the public - or are even on par with them - then those people are wrong, and the Supreme Court has regularly told them so.
  
  (Incidentally: How on earth can you get my name wrong, when it's spelled out right above my post? You have to look at it to see who's posting!)

• On the post: Rep. Zoe Lofgren Quizzes US Register Of Copyrights Over Close Connection To Industry

  

  Karl ( profile ), 23 Apr, 2012 @ 02:59am

  Re:

  I posted this on the other thread, before I realized it was the wrong one. To keep things in the right place, I'll re-post it here.
  
  

  ---

  
  
  I would read Eldred again, including its reference to Graham v. John Deere
  
  For those playing along with the home edition, here's the relevant part of Eldred v. Ashcroft:
  

  As petitioners point out, we have described the Copyright Clause as "both a grant of power and a limitation," Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 5 (1966), and have said that "[t]he primary objective of copyright" is "[t]o promote the Progress of Science," Feist, 499 U.S., at 349. The "constitutional command," we have recognized, is that Congress, to the extent it enacts copyright laws at all, create a "system" that "promote[s] the Progress of Science." Graham, 383 U.S., at 6.18.
  
  We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives. See Stewart v. Abend, 495 U.S., at 230 ("Th[e] evolution of the duration of copyright protection tellingly illustrates the difficulties Congress faces [...] . [I]t is not our role to alter the delicate balance Congress has labored to achieve."); Sony, 464 U.S., at 429 ("[I]t is Congress that has been assigned the task of defining the scope of [rights] that should be granted to authors or to inventors in order to give the public appropriate access to their work product."); Graham, 383 U.S., at 6 ("Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.").

  
  Nowhere does the Supreme Court say promoting the progress is "not a limit on Congress' legislative power." It's just that it's an incredibly broad limit. As long as Congress can give a rational basis for the proposed legislation "promoting the progress of science and the useful arts," then they are not acting unconstitutionally.
  
  But if Congress cannot provide a rational basis for the law "promoting the progress," then Congress is acting outside the bounds of the Copyright Clause, and the law is unconstitutional. You may also want to read the explanation of these limits in the court case that you cited, Graham v. John Deere:
  

  The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which, by constitutional command, must "promote the Progress of [...] useful Arts." This is the standard expressed in the Constitution, and it may not be ignored. And it is in this light that patent validity "requires reference to a standard written into the Constitution." Great A. & P. Tea Co. v. Supermarket Equipment Corp., supra, at 340 U. S. 154 (concurring opinion).
  
  Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which, in its judgment, best effectuates the constitutional aim. This is but a corollary to the grant to Congress of any Article I power.

  
  This is why both the Graham case, and the Eldred case, spent over half of each ruling going into the reasons why Congress enacted the laws it did, and whether those reasons constituted a rational basis for promoting the progress.
  

  ---

  
  Ms. Pallante's comment is much more in consanance with Supreme Court decisions than that of Ms. Lofgren.
  
  This is a transcript of the exchange in question.
  

  Pallante: So, when I took this job, I was required to take an oath, to uphold the Constitution and the laws of the United States. Uh, the Constitutional Clause to promote the progress of science and the useful arts, works in part, by, quote, securing for limited time to authors, their respective writings and discoveries. What I was doing in that interview, and you extracted one sentence from a four-page interview, was making the point that the Supreme Court has interpreted that clause, including in two recent decisions, Eldred and Golan, in the last year, that the limited monopoly goes first to authors, so that they will produce, so that in the end, the public will benefit.
  
  Lofgren: I think that's a real misstatement of the Eldred case. The Eldred case, basically, had to do with the jurisdiction of Congress. It didn't find that the, um, the benefit was to authors instead of society. It basically was, uh, a finding that Congress was not limited by the words, uh... for limited periods, for the extreme measure that we've done now, life of the author plus seventy years.

  
  Pallante is indeed wrong. The Supreme Court did not say that the limited monopoly "goes first to authors, so that they will produce, so that in the end, the public will benefit."
  
  Here's what the court actually decided:
  

  In that 1998 legislation, as in all previous copyright term extensions, Congress placed existing and future copyrights in parity. In prescribing that alignment, we hold, Congress acted within its authority and did not transgress constitutional limitations.

  
  In contrast, the court did not say that "in the end," the public will benefit. They reiterated that the primary objective of copyright is to promote progress. (I've already provided the quotes above.)
  
  Regarding Eldred, Lofgren is right, and Pallante is wrong.
  
  But perhaps she was thinking of Golan v. Holder. Here's what Golan said about copyright going "first to authors:"
  

  The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learning. [...] Evidence from the founding, moreover, suggests that inducing dissemination - as opposed to creation - was viewed as an appropriate means to promote science. [...] Our decisions correspondingly recognize that "copyright supplies the economic incentive to create and disseminate ideas." [Emphasis in original]

  
  So, no, they didn't hold that copyright goes "to authors first" so that the public will benefit "in the end." They held that the public benefited even when works were still under copyright, because the dissemenation of works was an immediate benefit to the public.
  
  So, Pallante is wrong again.

• On the post: Too Much Copyright: This Generation's Prohibition

  

  Karl ( profile ), 23 Apr, 2012 @ 12:14am

  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: It's limiting both sides...

  between the Register of Copyrights and Ms. Lofgren
  
  Wrong story, buddy.

• On the post: Too Much Copyright: This Generation's Prohibition

  

  Karl ( profile ), 23 Apr, 2012 @ 12:11am

  Re: Re: Re: Re: Re: Re: Re: Re: Re: It's limiting both sides...

  I would read Eldred again, including its reference to Graham v. John Deere
  
  For those playing along with the home edition, here's the relevant part of Eldred v. Ashcroft:
  

  As petitioners point out, we have described the Copyright Clause as "both a grant of power and a limitation," Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 5 (1966), and have said that "[t]he primary objective of copyright" is "[t]o promote the Progress of Science," Feist, 499 U.S., at 349. The "constitutional command," we have recognized, is that Congress, to the extent it enacts copyright laws at all, create a "system" that "promote[s] the Progress of Science." Graham, 383 U.S., at 6.18.
  
  We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives. See Stewart v. Abend, 495 U.S., at 230 ("Th[e] evolution of the duration of copyright protection tellingly illustrates the difficulties Congress faces [...] . [I]t is not our role to alter the delicate balance Congress has labored to achieve."); Sony, 464 U.S., at 429 ("[I]t is Congress that has been assigned the task of defining the scope of [rights] that should be granted to authors or to inventors in order to give the public appropriate access to their work product."); Graham, 383 U.S., at 6 ("Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.").

  
  Nowhere does the Supreme Court say promoting the progress is "not a limit on Congress' legislative power." It's just that it's an incredibly broad limit. As long as Congress can give a rational basis for the proposed legislation "promoting the progress of science and the useful arts," then they are not acting unconstitutionally.
  
  But if Congress cannot provide a rational basis for the law "promoting the progress," then Congress is acting outside the bounds of the Copyright Clause, and the law is unconstitutional. You may also want to read the explanation of these limits in the court case that you cited, Graham v. John Deere:
  

  The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which, by constitutional command, must "promote the Progress of [...] useful Arts." This is the standard expressed in the Constitution, and it may not be ignored. And it is in this light that patent validity "requires reference to a standard written into the Constitution." Great A. & P. Tea Co. v. Supermarket Equipment Corp., supra, at 340 U. S. 154 (concurring opinion).
  
  Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which, in its judgment, best effectuates the constitutional aim. This is but a corollary to the grant to Congress of any Article I power.

  
  This is why both the Graham case, and the Eldred case, spent over half of each ruling going into the reasons why Congress enacted the laws it did, and whether those reasons constituted a rational basis for promoting the progress.

• On the post: Bonus Sunday Post: Help Dan Bull Get His New Freely Distributed Song On The Charts

  

  Karl ( profile ), 22 Apr, 2012 @ 10:28pm

  Re:

  Yeah, you're not pro-piracy at all.
  
  You might have a point, if any piracy was happening here at all. It isn't.
  
  Dan Bull didn't commit copyright infringement to write the song. He authorized the distribution on The Pirate Bay, so The Pirate Bay isn't committing copyright infringement (vicarious or other). Nobody who downloads Dan Bull's songs from The Pirate Bay is committing copyright infringement.
  
  It's all completely legal. Not only is it within the law, it's activity the law was designed to encourage.

• On the post: Too Much Copyright: This Generation's Prohibition

  

  Karl ( profile ), 22 Apr, 2012 @ 09:55pm

  Re: Re: Re: Re: Re: Re: Re: It's limiting both sides...

  Well, maybe I've sold one of my products to the publishers. That's how you get information about how the process works.
  
  Um, you do know that this is a contract, not the law, right?
  
  If the publisher wrote the "impact area" into the contract, that's between you and the publisher. There's no law that said the publisher had to do that, and no law that said you had to accept the publisher's contract. Plenty of other publishers offer contracts without the "impact area" clauses. Hell, I'll bet your publisher does, too, just with other authors.
  
  The terms of your contract have absolutely no relevance to anyone but you and your publisher. No other authors, "professional" or "amateur," are required to abide by them.
  
  It has absolutely zero to do with copyright law.

• On the post: Too Much Copyright: This Generation's Prohibition

  

  Karl ( profile ), 22 Apr, 2012 @ 09:49pm

  Re: Re: Re: Re:

  Look at it from the consumption perspective. Tangible goods are consumed or used. You pay the full price at time of acquisition/use.
  
  That's not true of Tangible goods, either.
  
  If you produce a hammer, there are essentially two costs to make it: sunk (fixed) costs, and marginal costs. Marginal costs are, the cost of the materials to make that particular hammer, plus whatever labor costs were used to produce that particular hammer. Sunk costs would be the cost to buy property for the hammer factory, the costs of the machines used to mass-produce the hammers, etc.
  
  In a perfectly competitive market, unit price tends to drop to the marginal cost. This is the point at which the minimum price, and the maximum profit for the producer, are attained.
  
  That's not true for a monopoly, where the producer can assign the price based purely on a supply/demand curve, without having to take costs into account. That is, they can price their product as high as they want to, up to a maximum point where raising it would cause people to buy less of it, even if their costs are zero.
  
  As you can imagine, unit prices under a monopoly are far higher than unit prices under a competitive market. Monopolies tend to cause the price to go up, not down.
  
  And copyright, as many people have made explicit, is just such a monopoly. Copyright doesn't keep prices down. It keeps prices high.

• On the post: Too Much Copyright: This Generation's Prohibition

  

  Karl ( profile ), 21 Apr, 2012 @ 11:31pm

  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: It's limiting both sides...

  farmed out to North Korea
  
  Oops, yes, I did mean South Korea. My bad.
  
  Although, apparently North Korea makes a few as well.

• On the post: Too Much Copyright: This Generation's Prohibition

  

  Karl ( profile ), 21 Apr, 2012 @ 11:18pm

  Re: Re: Re: Re: Re: Re: Re: It's limiting both sides...

  Wider distribution is clearly not correct for this.
  
  Copyright law was created at a point in history when for-profit publishers were the only ones with the ability to widely distribute works to the public. The theory was that unless artists were granted the exclusive rights to their works, they wouldn't make them, publishers wouldn't distribute them, and the public wouldn't get any sort of access to the works at all.
  
  That's clearly not true in this day and age, of course. And if you think that contradicts the stated intent of copyright law, don't worry - you're not alone.
  
  The actual benefit from copyright is that authors
  
  Wrong again. The primary beneficiary of copyright is supposed to be the public. Several Supreme Court cases, as well as the Congressional record, have made this absolutely clear.

• On the post: Too Much Copyright: This Generation's Prohibition

  

  Karl ( profile ), 21 Apr, 2012 @ 11:04pm

  Re: Re: Re: Re: Re: Re: Re: It's limiting both sides...

  The existing system already limits it to professionals
  
  Dude, seriously, what the hell are you talking about? Copyright law, right now, does not limit the market to professionals. That's not even remotely close to what it was intended to do.
  
  Copyright law also has nothing whatsoever to do with labor laws. Nothing. In fact, much of the entertainment industry is exempt from labor laws, because they're working on a royalty basis.
  
  Seriously, you're not making any sense at all. You really have no idea how copyright works, do you?

• On the post: Too Much Copyright: This Generation's Prohibition

  

  Karl ( profile ), 21 Apr, 2012 @ 10:27pm

  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: It's limiting both sides...

  Are you kidding me?
  
  Yeah, no kidding. When was the last time any animation was actually produced in America? It's all farmed out to North Korea. And half of the Syfy Network's shows are filmed in Vancouver.
  
  I mean, that's a total joke. Whatever the tech industry's failing, it created more American jobs in the past ten years than Hollywood ever has. And it's not like Hollywood is giving back to the nation; they get tax breaks out the wazoo. (See e.g. the Domestic Production Activities Deduction.) Hell, even tech companies from India paid more in taxes to the U.S. than Hollywood did last year.

• On the post: Too Much Copyright: This Generation's Prohibition

  

  Karl ( profile ), 21 Apr, 2012 @ 05:35pm

  Re: Re: Re: Re: Re: It's limiting both sides...

  The ownership goes to publisher to prevent authors from expanding their "impact area" in the world to too big.
  
  I know I'm probably harping at this point, but I really need to point something out.
  
  This is exactly the opposite of what copyright is supposed to encourage. Copyright exists solely to benefit the public, and the main benefit is supposed to be the wider distribution of literature and artworks.
  
  If copyright law really does "prevent authors from expanding their 'impact area' in the world," then the law is doing exactly the thing that it was designed to prevent.

• On the post: Too Much Copyright: This Generation's Prohibition

  

  Karl ( profile ), 21 Apr, 2012 @ 05:25pm

  Re: Re: Re: Re: Re: Re: Re: It's limiting both sides...

  The fact a few in the minority disagree with the majority does not prove anything.
  
  There is no "majority" in this fight. There are plenty of artists who believe piracy destroyed music, and an equal amount who believe it's the best thing for music ever.
  
  Of course, most artists are in neither camp. Most believe that the things that allow piracy also benefit fans and help the overall artistic culture. Some believe the losses of the one outweigh the benefits of the other, some the reverse.
  
  If there is a majority viewpoint, it's that piracy is bad, but the labels' reaction to it is also bad, and passing bad laws won't help anyone. Beyond that, there's really no consensus.
  
  But regardless of their opinions, what most musicians are actually doing is accepting the fact that their fans share music, not worrying about that too much, and instead focusing on the many ways that new technology can be used to better themselves. Just as they should be.

• On the post: Too Much Copyright: This Generation's Prohibition

  

  Karl ( profile ), 21 Apr, 2012 @ 05:06pm

  Re: Re: Re: Re: Re: Re: Re: It's limiting both sides...

  But then we would have things like facebook which are expanding in the world rapidly using some automated script which sends spam and invites people to join their network.
  
  Of all the spamming I've suffered through on Facebook (and, earlier, MySpace), by far the most has been from "professional" musicians looking to market their major-label releases. I even got an unsolicited message on my mobile phone by some rap artist plugging his latest release on Universal.
  
  But since they're from "professional" musicians, it must be A-OK, right?

• On the post: Too Much Copyright: This Generation's Prohibition

  

  Karl ( profile ), 21 Apr, 2012 @ 04:52pm

  Re: Re: Re: Re: Re: It's limiting both sides...

  Have you never heard of self releasing (books, music).
  
  According to tp, these are "amateurs." And, according to him, copyright law is supposed to "prevent [these] kinds of products to enter the markets."
  
  He was not discussing piracy at all. He was talking about limiting the market to "professional" artists alone.
  
  It is this kind of thinking that I find abominable.

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