There’s no such thing as used digital media.

It’s science.  Deal with it.

We hear an awful lot about how copyrights on creative works “stifle innovation,” preventing new business opportunities from launching or thriving. And the self-serving advocates of these “new” ideas love to describe those of us who question their proposals as anti-technology, anti-progress, stuck in old models, and so on.  But the idea that a digital file of a song, a movie, a book, etc. can ever be called “used” is nothing more than an attempt to transplant a very old model into the soil of a new, technological market.  So, who’s being anachronistic here?

On purely technical grounds, there is literally no such thing as used digital media because “use” does not in anyway degrade a file.  A digital file of a song or a movie plays as pristinely the millionth time it’s played as it does the first time it’s played.  If you worked in video post-production in the days of early digital tape media, you would have seen a new term affixed on the spines of those tapes — clone.  Because that’s what a digital “copy” actually is; it is an exact replica with no generation loss from the original source.

So, if you transfer a file of a song or a movie to someone else, it will not in any sense be “used” simply because you experienced it before someone else did.  The new “owner” of that file will have a brand new experience, the value of which is identical to the original “owner’s” purchase price of the file from the original distributor.  If we’re talking about a movie, for instance, the only thing that differentiates Viewer A from Viewer B is that the former has seen the film and the latter has not.  Yet, the logical argument being made by certain “new model” entrepreneurs is that Viewer B should be entitled to pay less for the identical experience simply because Viewer A has already paid the original price one time.  This is patently absurd. By the same logic, the ticket price for a movie in a theater ought to decrease incrementally after each screening because the film has been “used” by other viewers. (Yeah, somebody in the copyleft crowd just thought, “Hey, that’s a good idea!”)

This notion of “used” digital media is just one way in which technological opportunists can be disingenuous when it comes offering up what sound like market-based theories.  They want the luxury of cherry picking from both the past and the present as suits their purposes.  In reality, though, these ideas don’t come from particularly innovative technologists, but rather from standard-issue middlemen looking to exploit a consumer-serving limitation on copyrights to siphon value from creators and line their own pockets.  In the long run, though, transporting this doctrine into the digital market, which makes no rational sense, would likely drive prices up in what I’ll call first-user experiences in order to offset lost revenue.

Naturally, when a work is distributed on physical media, the notion of “used” remains intact.  First sale doctrine in copyright law says that I can buy a novel and then sell the book as used at my next yard sale, regardless of whether or not I read it to a dogeared pulp or kept it in pristine condition and never cracked it open.  The condition of the book may affect the second-market value in my yard sale, but it has no bearing on my right to sell or otherwise distribute the used copy one time.  Because this transaction involves a physical object, replicating the process even in tens of thousands of yard sales all over the country would never produce a secondary market for novels that clones the primary market and inherently reduces the value of all novels everywhere.

But this is exactly what would happen in an all-digital “used” market in which a middle-man like Amazon, Apple, or Redigi removes a previously purchased file from Consumer A’s computer, sells it to Consumer B for a lower price than the original, and profits from the transaction while kicking a little something back to Consumer A.  Never mind how easy it would be for the selling consumer to cheat that system by storing files any number of ways, the so-called “secondary” market would very rapidly become the primary (i.e. only) market, and therefore just another means by which tech-happy leaches artificially drive the value of creative works below sustainable levels while pocketing millions before the producing entities collapse.  (Anyone who just thought “Good, I can’t wait until the movie studios, record labels, and publishers collapse,” should understand that it will be the independent, small and mid-sized producers who will fail first.)

I find it hard to believe that any legislator or court would be bamboozled by the parlor trick in which a file is moved from one consumer to another through the resale transaction without making a “new copy.” This is an analysis of the state of the technology and its role in the market viewed through a pre-digital lens, semantically bogged down in irrelevant terms like “copy” while ignoring how the technology actually works and what its potential market impact can be for good or bad.  So, if we’re really talking about developing new business models that correspond with new technology, then the language we employ might have to be new as well.  And in the digital world, the word used has outlived its usefulness.

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109 Responses to There’s no such thing as used digital media.

  1. M says:

    Well you know that is also the thing that makes digital media have less value in the eyes of the consumer. Doesn’t feel as good knowing that when you buy a song from iTunes, it has no resale value at all. Legally thus far you can’t even transfer them to your children as part of inheritance. This devaluation of content by detaching it from the notion of tangible ownership has probably not done well to your industry.

    • AudioNomics says:

      And you pay a lower price to reflect this descrepency.
      If resale or transfers are important to you, you have the option of buying physical media….

    • David Newhoff says:

      I think the devaluation of works is due to several factors, but I am skeptical that resale ever figured heavily into any consumer decision to buy a book, record album, etc. There are some intrinsic value reductions related to digital, but even these have little to do with pricing. The biggest devaluation I believe is psychological because digital feels and is disposable in a way that physical media are not. I’d argue that one can technically bequeath one’s digital library to one’s children simply by leaving the physical devices upon which it is stored, but the likelihood that those files will be playable when those kids are parents themselves is quite low because tech paradigms change so rapidly. The truth nobody likes to address is that archival is a big question mark at both the industrial and consumer level. The only media I can be absolutely sure will be accessible to my great grand kids will be the books on my shelf.

      • John Warr says:

        Exactly. I never sold any old LPs, though I know people that did when they were absolutely broke. The cash they got was pretty low, and most didn’t sell LPs for that reason. Paperback books you may have got a few pence as the secondhand shops sold them for little more. Someone I knows has a vast video collection all bought secondhand for £1-2 each.

        Vinyl records are interesting I’ve just started ripping some of the old folk records that is no longer available some are more than 40+ years old. They seem to have survived the years remarkably well.

      • M says:

        I don’t think that’s legal David. The license for most media is attached to you as a person, not to your hardware. If you sell your hardware for instance, you might be committing copyright infringement if you don’t destroy the data on your hard drive before selling it.

  2. Sam Flintlock says:

    Apart from anything else, the only way to make digital goods resaleable is to make sure that they can’t be kept. Which requires one of two things. Either extremely high levels of restrictive DRM (and I consider things like not being able to format shift way more of an infringement of consumer rights then this issue) or mass surveillance of people’s PCs to make sure that they’re not keeping files they’ve sold on.

    Personally, I’d rather just, y’know, not have resale rights on digital files. As long as I can transfer them from PC to PC, it really doesn’t matter to me.

    To an extent though, the copyright preservationists (1) have made a rod for their own backs here. People did try to tell you that putting out propaganda that suggested that piracy was the same thing as theft of physical goods wasn’t really a good idea. If you’d actually listened, it wouldn’t be as easy for the abolitionists to play this particular card. I can only muster up so much sympathy for people who insist on repeatedly running into their opponent’s fist.

    (1) In an attempt to try and make the terms less partisan, I’ve started describing the three camps on copyright as “preservationist”, “reformist” and “abolitionist”. I’m trying to move away from rhetorical flourishes like “maximalist” and “freehadist”. What do people think? Are the terms I’ve come up with neutral enough to not be objectionable to the people they’re describing? Obviously, I place myself in the reformist camp.

  3. Anonymous says:

    Sam–
    Well, Reformist and Abolitionist sound fine to me, but then I’m a Reformer and I’m acquainted with a number of Abolitionists.

    I don’t know about Preservationist, as a substitute for Maximalist, however. Firstly, I can’t think of anyone in that camp who wants to preserve the current law as it now stands; there are numerous calls for continuing to increase the scope and duration of copyright. The name would be oxymoronic, like those so-called conservatives who actually want to make radical changes instead of just keeping things as-is.

    Secondly, the preservation of works and the preservation of user rights are both big planks in the Reform movement at least. While I understand what you mean, the first association I made from Preservationist was with “archivist,” which is of course quite different.

    So I think Maximalist remains a good name for the third camp. It seems relatively neutral to me, as opposed to “freehadist” which clearly wants to tarnish people with an association with jihadists, terrorists, etc.

  4. Anonymous says:

    David–
    “On purely technical grounds, there is literally no such thing as used digital media because “use” does not in anyway degrade a file.”

    That’s neither relevant nor true.

    First, exhaustion after first sale has nothing to do with whether or not the copy has been degraded, or even whether or not that’s possible. And we can certainly imagine copies which are not only so resistant to being degraded that any amount of ordinary use will not degrade them (e.g. books etched into synthetic diamond plates) but also copies which are self-healing in the event of degradation (a single-volume ebook reader containing multiple instances of the same ebook, checksums, parity data, and automated error-checking and repair functions).

    Second, it’s entirely possible to cause a work in a digital format to become degraded after use, at least barring substantial efforts to avoid this. “Agrippa (A Book of the Dead” and the Flexplay optical disc are well-known examples.

    “The new “owner” of that file….”

    Why the quotes around owner? Are you suggesting that it’s not possible for someone to own an intangible thing? If so, I’d find that to be a surprising claim around these parts.

    “Yet, the logical argument being made by certain “new model” entrepreneurs is that Viewer B should be entitled to pay less for the identical experience simply because Viewer A has already paid the original price one time.”

    Is that the argument? I don’t think so. First off, there is no requirement that used copies must be sold for less than the price of new copies. Indeed, used copies of books frequently sell for more than new copies of new editions of the same books. And used copies may command a higher price due to the particular provenance of the copies as well. If a used copy fetches a lower price, it is simply because the price of a new copy is either artificially being kept high, or because there is a preference in the market for unused items. (Cf. the prices of new v. used clothing, or new v. used cars)

    Secondly, copyright has nothing to do with charging for an experience. Were that so, we wouldn’t have first sale to begin with, nor things like private performances nor lawful but non-licenced public performances.

    The reason that B need pay less than A is simply because A was willing to sell at a lower price than new. I’m sure A would’ve loved to not only recover his expenses but to have turned a profit as well; but the market is what it is.

    “This is patently absurd. By the same logic, the ticket price for a movie in a theater ought to decrease incrementally after each screening because the film has been “used” by other viewers.”

    That does happen, just not so granularly.

    Movies are shown in first run theaters. Then they move to cheaper second run theaters. Then they go to home video, where a copy can be rented or borrowed even more cheaply still. And back in the old days, before movies were in first run theaters, they’d go on a roadshow, where they were performed in extremely fancy theaters, with reserved seating (like a play), and significantly higher ticket prices than a regular first run theater.

    Given advances in technology, and the desire on the part of sellers to charge exactly as much as each customer is willing to pay, so as to maximize their revenues, and we may well see something like you suggest.

    “In reality, though, these ideas don’t come from particularly innovative technologists, but rather from standard-issue middlemen looking to exploit a consumer-serving limitation on copyrights to siphon value from creators and line their own pockets.”

    You say that like there’s something wrong with it.

    “In the long run, though, transporting this doctrine into the digital market, which makes no rational sense, would likely drive prices up in what I’ll call first-user experiences in order to offset lost revenue.”

    Challenge accepted. Seriously, though, I think you’re probably demonstrably wrong. In a number of foreign countries, authors do get a cut of used book sales, as well as lending fees from libraries. If you were right, we should see substantially lower prices for new books, as the authors are getting a cut of later markets. But this does not appear to be the case, AFAIK. Rather, it’s just a way for standard-issue copyright holders looking to exploit customer-serving middlemen to siphon value from hardworking booksellers and taxpayers to line their own pockets.

    “Never mind how easy it would be for the selling consumer to cheat that system by storing files any number of ways”

    We can cheat the system now by xeroxing books and selling them used. And it’s been known to happen, in fact; booksellers tend to be suspicious of people returning books shortly after purchasing them. But it doesn’t seem to have caused human sacrifice or dogs and cats living together.

    “artificially drive the value of creative works below sustainable levels while pocketing millions”

    Well then that’s a good reason for the creative industries to try to get there first. If someone is going to invent a better mousetrap that puts your crappy mousetrap business into bankruptcy, it behooves you to invent the better mousetrap yourself, and to rise, phoenix-like, from the ashes. But what am I saying? The publishing industry is built on the bedrock of destroying any sort of change or improvement that might possibly threaten them, preferably through legal or monopolistic means, rather than by providing a legitimately better option and letting customers decide.

    “I find it hard to believe that any legislator or court would be bamboozled by the parlor trick in which a file is moved from one consumer to another through the resale transaction without making a “new copy.””

    Trivial. Store instances of works in the cloud. Assign each instance its own account, with each account tied to a super-account. Users will ordinarily interact with a super-account, but can detach an account and transfer access to it to a third party. The files never get copied (though they are accessed across the network), but the ability to be the sole person able to access to them changes hands easily. You see this sort of thing all the time; MMOs are well known for it.

    This would not offend the Copyright Act, but there may or may not be some licensing language that would need to be looked at. Of course EULAs and other adhesive contracts in consumer transactions are a bad idea and need to be abolished anyway.

    • David Newhoff says:

      Anonymous & Sam–

      The point of the post (and I stand by it) is that it is neither rational nor public-serving nor author-serving to transport doctrine from the world of physical media to the world of digital files. It reminds me of people who are absolutist about the 2nd Amendment despite the fact that firearms are technologically beyond the scope of the framers’ imaginations and a “well regulated militia” is a meaningless phrase today. I don’t dispute Sam’s point that more DRM or some sort of surveillance would be required to track the reselling of digital files, I simply reject that such an enterprise should be allowed to exist at all on the grounds that it would cause tremendous harm to authors and that it pretends the technology is something other than what it is. That a digital file cannot be called “used” in any classic sense is not debatable, Anonymous, and exceptions where corruption or failures of specific media might occur are irrelevant. Once a file is corrupt, it’s corrupt and therefore worthless. We’re not talking about a secondary market where I’d sell my file of Persepolis with the caveat that scenes 6 and 12 are damaged. We’re talking about the reality of digital media most of the time. And while I agree the matter is irrelevant in the sense that first sale doctrine makes no provision for the condition of the thing being sold, I will have to insist that this limit on copyright was written with a general understanding of “used media” that is not applicable to digital files.

      Anonymous, several of your responses are dodging around the truth of what the models that have been proposed would look like, and the fact that digital files retain their integrity is relevant because the implied secondary market created by a Redigi model would simply provide consumers with “new” media for “used” prices. The consumer is not going to purchase a file at iTunes for $12 when he can get a file at Redigi for $6 that is a clone of the one at iTunes. Why would he? You’re right that some used works like rare books can sell for more than their original price, but that has nothing to do with the transactions we’re talking about and you know it. Items that increase in value do so because they are rare, which means the probability that they are digital is extraordinarily low. Similarly, with my movie theater example, you simply changed the conditions of my hypothetical and described first-run and second-run theaters in order to make an end run around the point. A hypothetical, granular decrease in ticket price from show to show at the same theater was the comparison (and was meant to be funny because it’s ridiculous). But even these theater examples are predicated on pricing related to value that consumers place on time and location. It is more expensive and often perceived as more valuable to see a new release opening weekend at the Ziegfeld in Manhattan than it is to see the film two weeks later at the neighborhood theater where I live (although I much prefer the latter experience myself). And again, your Xerox example is another distraction. To compare digital files and their exchange to any pre-digital example is pretending the technology is something other than what it is, which is a bad foundation for a discussion about the role of legal doctrine going forward.

      It’s clear, Anonymous, that you have a pretty big chip on your shoulder regarding legacy producing entities, and I might even agree with many complaints about the big, corporate producer/distributors. But I find this whole “better mousetrap” argument nearly as offensive as “piracy is a new model, you should learn from it.” If a “model” cuts authors out of the revenue stream and simultaneously reduces prices below sustainable levels and is treating new technology as though it’s old technology, then it’s not really a model, is it? You talk about consumers as though they’re underserved, which is not true. American consumers are spoiled beyond belief, with access to volumes of media at cheap prices, and many still whine and pirate. When I was a kid, the theater ticket price for a movie was $5 (c. 1980) in Los Angeles. Now, I can rent a movie on iTunes for $4 that the whole family can watch. Factor for inflation and the fact that four people are watching for that one price, and the film itself is practically free. Moreover, the entire analysis that this model is a better mousetrap the industries ought to devise for themselves is predicated on looking solely at the last stage of the supply chain. This is Mike Masnick economics (which is to say moronic) as though the price for a toaster is determined by looking at the supply chain only at the moment someone packs the appliance in a box and ships it to the retailer.

  5. James_J says:

    Barring any other arguments (of the many legitimate arguments against such a move) .. what would prevent say, ‘The Pirate Bay’ for instance, to sell quote un-quote “used” media as if they had any right to the original to begin with? You would essentially kill off what little remains of artist revenue while legitimizing TPB (which, it doesn’t pass my attention that many in ‘your camp’ seem to think would be a good idea…)

  6. Anonymous says:

    James_J–
    I assume you are asking about the next-to-last paragraph in that post? The Pirate Bay would be the wrong sort of venue. Remember, I was postulating a system by which people could buy and sell access to copies of works without making additional copies in the process. (Cf. Redigi, where new copies were made and old copies were deleted)

    If you’d like an analogy, imagine that there is an art gallery in a storage unit complex. There is a single piece of art stored inside each storage unit. The owners of the art always own the individual unit that the art is stored in. The rule of the gallery is that the owners are not allowed to move the art out of the unit, not even to move it to a different unit or out of the complex altogether. Therefore, in order to effectively buy and sell art, they instead buy and sell the keys to the locks on the doors of each of the units.

    Since the owner of a particular copy wants to get a good price when he sells the ability to access it to someone else (himself necessarily losing the right of access in the process), it would be best to use something like eBay. After all, why would a person looking to sell something used want to encourage pirates to whip up unlimited copies of that thing? It would only undercut the market he’s trying to sell in.

    In any case, since no new copies can be lawfully made by the people buying and selling post first sale, there would still be a demand for new copies. Since used bookstores and used record stores and the like have not managed to kill off any industries, I don’t think that there is a real concern here. Degradation of copies is just a red herring.

    As for legitimizing The Pirate Bay, while I am in favor of making an exception to copyright such that natural persons could lawfully engage in otherwise infringing activity, if not of a commercial nature, this would not help TPB. They accept donations, they sell merchandise, they sell advertising space — in short, they are a commercial operation. I’m only interested in making it legal for ordinary individuals to pirate entirely at their own expense. Mainly because it happens anyway, and where normal behavior conflicts with the law, and there’s not a damned good reason for that law to trump, the law should not render normal behavior illegal.

    • Sam Flintlock says:

      I’d suggest that the way forward is not to legalise it entirely, but to treat it in the same way we’d treat a parking ticket Not having long drawn-out court cases for individual non-commercial copyright infringement is in everyone’s interests.

      This is largely academic at the moment though. Unless we sort out the issue of widespread commercial piracy first, no movement is possible.

      • M says:

        Since filesharing has been going on in the mainstream (longer in non-mainstream) for basically 15 years, don’t you think that if it was any real way to sort it out it would have been sorted out by now? We are talking about “billions and billions” of dollars on the line. Right?

      • AudioNomics says:

        Legislation is notoriously slow to catch up with technologies. A decade or so is normal. SOPA /PIPA was an attempt, and it will not be the last… you can bet on that. The Wild West wasn’t wild forever, a ‘sheriff’ will ‘come to town’ eventually on the internet. There is already quite a bit of movement in this regard. The free ride will come to an end. We’re already hearing people whine about it…

      • M says:

        Really? It takes Congress more then 15 years to respond to an existential threat to numerous major industries? Wow, I thought I had a negative opinion of Congress, but that’s behind laughable.

        I’ve heard the same exact crap about the the end of the “wild west” Internet for most of those 15 years. Remember five years ago and the “the end of the piracy decade is nigh” meme? What happened to that? Did you’ll mean 2020?

        The constant thing throughout this is to seen a proposal for copyright enforcement that can’t be dismissed with 5 minutes. The fact is, short of monitoring everything everyone does online or with a computer generally, you will never have working copyright.

      • AudioNomics says:

        You obviously don’t pay attention to how Congress works.

    • James_J says:

      Your example, anonymous, wouldn’t work… for the exact same reasons that DRM doesn’t really work. I’ve thought about using a “Bit-coin” like process to give integrity to the file(s) so each could be unique and accountable…
      …but then, i start to have rational thoughts…
      like, anyone with an Audio Interface could record sound, and anyone with a ‘line-out’ or a video camera or heck, a smart phone could record video…it wouldn’t work the way you envision. You would literally have to ban entire electronic industries from making the things that allow the medium to be produced in the first place..
      No, i believe the best route is better copyright enforcement. If you seek lower prices, the makers have to earn back their investments+. If more people actually purchased their media, further lowering of prices could be a selling/competitive strategy.

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  8. Anonymous says:

    David–
    “it is neither rational nor public-serving nor author-serving to transport doctrine from the world of physical media to the world of digital files”

    I don’t think that people are supporting this merely because there should be absolute consistency between the real world and computers. I think that it’s because first sale is a strongly public serving doctrine which is extremely popular and which most people regard as eminently sensible and reasonable. And so, especially as media distribution moves further and further online, why would we want to give that up?

    I’m of the opinion that there is a general social norm concerning copyright. Most laypeople who have no knowledge of the subject founded on actual study or experience nevertheless have a mental model of copyright. So long as the law adheres roughly to that model, they view the law as reasonable. If the law diverges, it’s the law that’s in the wrong. Maybe if there’s a good enough reason, this would be acceptable, but this is copyright we’re talking about; it’s not that important in the grand scheme of things.

    First sale and general exceptions for activity at the level experienced by most individuals (making personal copies, sharing things with your friends, downloading from the Internet) are seen as reasonable. Laws that protect against commercial piracy or authors being ripped off by publishers are also seen as reasonable. Back in the old days, copyright’s reach was not extended so much, and so was much less objectionable. Most people never even gave it a second thought. But now a lot of people are interested in copyright, and it’s not the people who have done most of the changing.

    “I simply reject that such an enterprise should be allowed to exist at all on the grounds that it would cause tremendous harm to authors”

    But it would cause a great benefit to the public. The issue is whether the harm to artists would cause a harm to the public which would outweigh the benefit to the public. Otherwise the fate of authors is of no great consequence, at least as far as copyright policy goes.

    “That a digital file cannot be called “used” in any classic sense is not debatable, Anonymous, and exceptions where corruption or failures of specific media might occur are irrelevant.”

    I always find the misuse of the word ‘digital’ in this sort of argument to be hilarious. What you really mean is ‘machine readable.’ Ordinary books are digital; there’s no letter that sits halfway between A and B. And used books, unless they’re outright torn or something, convey the work with perfect fidelity while being sold at a lower cost. And people rarely buy books that don’t contain an accurate and complete instance of the work. The statute was written EXACTLY with used books in mind; it came just a year after Bobbs-Merrill, as I recall. You and the statute seem okay with the sale of used novels; there is no material difference you’ve raised between them and a novel in ebook format. The problem as of late is simply in the difficulty in moving the ebook and the ease and pervasiveness of copying it instead, which is all a rather minor issue to get hung up on.

    “The consumer is not going to purchase a file at iTunes for $12 when he can get a file at Redigi for $6 that is a clone of the one at iTunes. Why would he?”

    Well you can’t have used copies without those copies having started out being new, so someone is going to have to buy copies from iTunes at some point. So right off the bat there’s a quantity advantage for new copies as well as a first-mover advantage.

    It’s really just like a used bookstore. If you want to buy a book on the first day it is on shelves — Harry Potter and the Endless Revenue Stream, let’s say — you’re going to have to get a new copy. If you want to save money, you’re going to have to wait for someone who did buy new to finish up with the book and sell it used. I have enough faith in the marketing abilities of the publishing industries that they aren’t going to have too many people buying used.

    And if there’s not a huge price discrepancy, and if there’s good availability, and if they can keep pushing the idea that new is somehow better than used, or even that you shouldn’t sell things used (I actually never sell used books; I couldn’t bear to part with them!), I think that things will not suddenly change radically for the worse as you seem to be suggesting.

    “A hypothetical, granular decrease in ticket price from show to show at the same theater was the comparison (and was meant to be funny because it’s ridiculous).”

    I guarantee you that they’ll do it if they can figure out how. I’ve even seen the best blocks of seats held as reserved for higher prices. The main thing will be getting over the complaints that will arise from people who don’t like the idea of variable pricing because it always seems to screw people. I mean, I know I’ll be surprised if I’m offered a movie ticket for close to zero, even though that’s the most that could be wrung out of me, or better still, for negative dollars, since you’d literally have to pay me to go to some of the things they have.

    “But I find this whole “better mousetrap” argument nearly as offensive as “piracy is a new model, you should learn from it.” If a “model” cuts authors out of the revenue stream and simultaneously reduces prices below sustainable levels and is treating new technology as though it’s old technology, then it’s not really a model, is it?”

    Eppur Si Muove.

    The movies killed vaudeville. It cut most performers out of the revenue stream. Why have a thousand comic actors treading the boards every day when a handful of movie stars can do a better job and through the miracle of mass media, do so for less money than the sum of all of the live actors?

    Self-dialing killed phone operators, and automatic elevators killed elevator operators. We’re on the cusp of self-driving cars killing the cabbies, bus drivers, limo drivers, and long-distance truckers.

    You can complain about it, but you can’t stop it. The best thing to do if your business is facing destruction by some replacement that’s cheaper, better, and faster, is to be the one who is destroying it. Otherwise you get cut out entirely and can’t even make money after the change in the industry.

    “You talk about consumers as though they’re underserved, which is not true. American consumers are spoiled beyond belief, with access to volumes of media at cheap prices, and many still whine and pirate.”

    In the 1980s virtually every American household had landline telephone service. Turns out that we were underserved; what we really needed were smartphones, we just didn’t know it yet. If people are pirating, this is proof that they’re not getting enough media cheaply enough. Give legitimate, unrestricted copies to people for free, via a tremendously convenient method, and I’m sure they’ll flock to your door. Offering media that is in one or more ways inferior to what they can get from pirate sources and they’ll pirate because it’s more beneficial to them to pirate. It’s not a form of rebellion, it’s just the cheapest and easiest option.

    “Moreover, the entire analysis that this model is a better mousetrap the industries ought to devise for themselves is predicated on looking solely at the last stage of the supply chain.”

    That’s where the problem is. And since I’m interested in copyright reforms that better serve the public interest, the interface between publishers and the public is where my interests lie.

    • David Newhoff says:

      Anonymous —

      First, regarding language, I’m going to continue to use the word digital in this context, if for no other reason than machine readable is clunky and not helpful. Those of us who’ve worked professionally in media production through the change from analog media to digital media say digital and know exactly what we mean, and so does everybody else from libraries to courts to journalists and bloggers. And no matter what we call a “machine-readable” version of a novel, the question is whether or not the doctrine of First Sale still applies in the market fostered by the technological change.

      You seem to want to come at the question based either on semantics or (as I reference in the post) on cherry-picking the bits of copyright law you think should remain intact because they “serve the public.” If First Sale or any other doctrine does disservice to authors in the new technological paradigm, you seem unconcerned with this, which suggests to me that you reject the notion of copyright as an incentive for authors. More to the point, you seem unconcerned with finding balance, as though we can keep tipping the scales so drastically toward the buy-side of the market without diminishing the capacity of the supply side and ultimately reducing both cultural and economic value for everyone. And I say the evidence in the market (forget legal theory) supports my skepticism of your view.

      Amazon is the perfect example of what happens to a market based on some of the ideas your appear to be promoting. We get a monopolistic company that sells books at artificially low prices as a predatory means to consolidate its power and market-share, that blatantly makes works unavailable (i.e. censorship) as a “negotiating” tactic, and whose practices ultimately screw the authors. The “public service” Amazon provides is illusory because artificially low prices that gut an entire line of business has an economic ripple effect that can affect anyone’s job, even in other sectors. WalMart is to manufacturing as Amazon is to books. And if these market realities are not part of the discussion with regard to what doctrine in copyright law still serves the greater good, then I think the discussion is insane.

      Specifically, with regard to First Sale, I happen to think the fact that the public is already getting a really damn good deal ought to factor into whether or not further discounts made possible by transporting pre-internet doctrine into post-internet copyright law maintains the balance between consumer and producer. Moreover, the probability is very high that it would be an Amazon that would dominate the resale market. Given their predatory practices to date, authors might as well truly self publish and hawk their wares at local flea markets.

      While I get that your focus is on the buy side (i.e. the “public”) of this conversation — and we still don’t really know your motivation for commenting here rather than, say, a legal peer with whom you disagree — I simply don’t understand how anyone can insist that the value of any product is diminished solely on the basis that technology has disrupted one step in the supply chain — and not even close to the most expensive step. To exacerbate this incomplete analysis, we talk about the black market of piracy as though it were a legitimate alternative simply because “people will do it,” and they “want what they want.” And despite the fact that no industry can realistically compete with rampant theft, producing entities are adapting, and consumers have unprecedented access at cheap prices. If they don’t think so, it’s because they’ve had the virtues of “free” spoon-fed to them since childhood.

      Finally, I don’t think Bobbs-Merrill establishes or discusses any policy goal in its decision. In short, Congress did not sit down to legislate a mechanism for creating a secondary market so that more people could access more books at lower prices. First Sale establishes that a wholesaler has exhausted its rights once it receives the wholesale price for its product. This decision is entirely about a publisher and a retailer in the early 20th century. And I’m sorry, but I find it hypocritical when the crowd that says “this the future, we can’t go backwards,” is perfectly content to rely on outdated doctrine if it only disadvantages creators.

  9. Anonymous says:

    Sam–
    “Not having long drawn-out court cases for individual non-commercial copyright infringement is in everyone’s interests.”

    Oh, I disagree. There’s a rule of thumb that poor people are effectively immune from lawsuits, because it’s a waste of money to go after them. There have been precious few infringement lawsuits against individuals acting non-commercially, largely because the cost of the suit is quite large, and outweighs any possible recovery.

    Setting aside the important issue of access to the courts, it seems to actually serve the interests of the public to discourage plaintiffs from suing for infringements at that level.

    We’ve seen what happens when individual infringers are pursued sans long drawn-out lawsuit. You get virtually automated settlement processes and Prenda Law. Barring making it non-infringing, I think it’s best to not have a system that would permit for fines with minimal transactional costs. It does mean a handful of people will suffer greatly, and I am sympathetic to them, but the vast majority will get away with it.

    If you’d like a comparison, consider whether Prohibition would’ve ever ended if the Bureau of Prohibition could ticket everyone who drank. At the very least if you want to have nigh-universal enforcement, make it legal and then attach a modest tax to it, which is what we did ultimately do with alcohol.

    There’s just no excuse for turning everyone into lawbreakers, no matter how little of a slap on the wrist you give them.

    “Unless we sort out the issue of widespread commercial piracy first, no movement is possible.”

    As with drugs and drug cartels, if you legalize it and let people handle the matter for themselves, you’re likely to pull the wind out of the sails of the illegal industry. Why bother buying a DVD on Canal Street if you can legally download for free, expending only the cost of your own time, bandwidth, and electricity?

  10. Anonymous says:

    James_J–
    “Your example, anonymous, wouldn’t work… for the exact same reasons that DRM doesn’t really work.”

    Well… I didn’t ever promise that using cloud-stored copies to avoid the issue of incidental infringement by necessarily copying as an adjunct to a sale would shut down infringement. At best providing a reasonable lawful alternative may reduce the incidence of infringement, but it may not. Hell, I’m not even willing to say that it would be a good business model, especially given that non-copyright issues (i.e. the adhesive contracts used for end-user licensing) would serve to keep it from getting off the ground.

    “like, anyone with an Audio Interface could record sound, and anyone with a ‘line-out’ or a video camera or heck, a smart phone could record video”

    And anyone with some paper and a pencil (or a xerox, or a book scanner) can copy a book. But we still have used bookstores, we still sell used DVDs and CDs, which are easily ripped, etc. You’re right that DRM can never work.

    “it wouldn’t work the way you envision. You would literally have to ban entire electronic industries from making the things that allow the medium to be produced in the first place..”

    I never suggested anything of the sort, and my off-hand proposal certain wouldn’t entail that. I don’t greatly care if people make copies of things before they sell them used. God knows I’m sure it happens with easily copied things all the time now.

    “No, i believe the best route is better copyright enforcement.”

    What’s the difference?

    DRM is a sort of automated enforcement, by artificially impairing the functionality of equipment. Increased enforcement by other means — and I really have no idea how you’d do it without spying on everyone — still suffers from the same ultimate problem: diminishing returns.

    As retailers know full well, even though most shrinkage is caused by employee and customer theft, there is a point at which the money you spend on preventing shrinkage outweighs the money you make by not losing that portion of your inventory. It literally is more trouble than it is worth to enforce beyond a certain point.

    I think that diminishing and ultimately negative returns is a core concept in copyright policy.

    Increased enforcement doesn’t happen now, to any great degree, because it is already more trouble than it is worth. Ordinary people can’t pay the kinds of money that the publishers demand, actual lawsuits may be easy to win but too expensive to bother to routinely bring to trial, and the courts increasingly don’t like to see a system of actual justice abused for mass shakedowns.

    What publishers are seeking when they look for increased enforcement is a change in the calculus. They’re perfectly happy to see an outrageous amount of money spent on enforcement even if it produces minimal benefits for themselves, so long as it isn’t their money. They want to push that burden to other private actors (e.g. ISPs) and to the taxpayer. This pisses me off; if the benefits of copyright they enjoy are so important to them, they should have to shoulder the burdens too.

    And diminishing returns is an essential copyright issue for another reason too. The benefit that the public receives from copyright is just as subject to diminishing returns. While some level of copyright can produce an even greater level of public benefit than no copyright, this tapers off pretty rapidly. As the burden of having copyright at all still falls on the public, we should try to maximize our benefit/burden ratio, rather than just give everything away to authors and publishers et al.

    “If you seek lower prices, the makers have to earn back their investments+. If more people actually purchased their media, further lowering of prices could be a selling/competitive strategy.”

    First, I don’t believe that the savings get passed on to customers all that much. It does happen to an extent — that’s why mass production works out — but I don’t see why prices would go down. Remind me what caused CD prices to finally begin to drop? I don’t think it was people buying an increasing number of legitimate CDs.

    Second, I don’t seek lower prices per se. I seek the greatest public benefit. Lower prices would be good, but they’re just one factor.

  11. AudioNomics says:

    First of all, you (and “M”) need to stop with the strawman talking about copyright enforcement as a zero-sum game. It is not and will never be an “all or nothing” approach… nor do i hear it being proferred (except from you and “M” and the ‘anti’ crowd)…

    Second, there is a whole heck of a lot that can be done (and quite cheaply i might add) that would not impeed a person’s privacy (lol, like that’s [privacy] a thing anymore anyhow..). SOPA/PIPA were on the right track, though i know that’s like blasphemy to your sort.
    Individuals need not even be part of the equation for a “good enough” solution. Block the revenue to piracy sites, and most will wither and die, because believe it or not those operators are in it entirely for the money.. no matter what ideologue they expouse.

    Third, why if someone steals your car, or shoplifts in your store — you can call the police… but if someone steals my life work, i’m on my own? i pay taxes… it is the Federal government’s job to enforce Federal laws. Hell they don’t even need to do much of anything, I’ll gladly point out who it is who is stealing from me…

    • M says:

      If you want to know how SOPA/PIPA would have done to filesharing, you just have to look at countries that implemented tandem laws. Any kind of attempt to censor information on the Internet tends to inadvertently publicize it. In fact I would say the popularity of a filesharing site is strongly influenced by how many times copyright enforcement actions are attempted against it. Ever wonder why The Pirate Bay is the most popular filesharing site?

  12. Anonymous says:

    AudioNomics–
    “[S]top with the strawman talking about copyright enforcement as a zero-sum game. It is not and will never be an “all or nothing” approach”

    I think I was very clear in saying that copyrights should only be enforced up to a point and that some infringements are not worth pursuing, possibly so much so that some infringements should be legalized. We can have both limited enforcement and a tolerable degree of, shall we say, lawlessness.

    Our society expects that laws will not be perfectly enforced. Just imagine how awful life would be if every jaywalker got a ticket, if everyone who sped just a fraction over the limit, or who was a partial car length too close to another car, or who overstayed their parking spot by just a few seconds got ticketed. And these are easy, innocuous examples. There’s just too many laws that are too expansive to tolerate perfect enforcement. The corollary to perfect enforcement is the abolition of a host of offenses. Sure, we all want murderers to be caught, and we all recognize that it’s wrong to toss an apple core onto the side of the road; but most people will get offended if they’re treated like criminals, regardless of whether or not they are. Law relies on the respect of the people who are obligated to follow it. The law imperils its own existence when it reaches too far.

    “Block the revenue to piracy sites, and most will wither and die, because believe it or not those operators are in it entirely for the money”

    So long as they enjoy due process, and are not simply subject to a loss of revenue due to accusations that haven’t been fully tested in a court, I really wouldn’t be bothered too much. I don’t support commercial piracy; I support strictly non-commercial piracy. Mainly because, through their actions, I think the people have spoken in favor of it.

    OTOH something like SOPA or PIPA would be no good at all. It’s important to protect service providers of all sorts from liability incurred by their users. And it’s important to only pursue offensive acts; there should be no liability against a site as a whole if there is even a peppercorn of lawful activity involving it, as it were. For a similar reason, it would be unacceptable to regulate the DNS; going to a website where piracy occurs is an innocent activity in and of itself. And since there’s often a fine line between speech and infringement — which is sometimes not even clear to judges trying cases — we should be terribly, terribly careful about anything that we do which might even possibly, even slightly, infringe on free speech. But ask the publishing industries to try to carefully wield a scalpel and you inevitably get a drunk-on-power rampage with a chainsaw.

    “Third, why if someone steals your car, or shoplifts in your store — you can call the police… but if someone steals my life work, i’m on my own?”

    If someone infringes on your patent, you’re on your own (and until a few years ago, ditto for trademarks). If someone breaches a contract you’re a party to, you’re on your own. Lots of things are not criminal offenses. Somehow the world keeps on turning. The vast majority of copyright infringement is not criminal even though it is illegal, and the vast majority of infringement actions brought are civil, not criminal.

    “it is the Federal government’s job to enforce Federal laws”

    No, that’s frequently not true at all. Think of it more as the government giving you a right to do something about it. But they usually can’t, and frankly shouldn’t, be arsed. They’ve got bigger fish to fry.

    • AudioNomics says:

      Anon:
      “Our society expects that laws will not be perfectly enforced. Just imagine how awful life would be if every jaywalker got a ticket..”
      Again, i’m talking about organized criminal operators, not people who use the service.. you keep going back to the “zero-sum” …

      “there should be no liability against a site as a whole if there is even a peppercorn of lawful activity involving it…”
      Really? Jeez, i guess i’ll get into selling suitcase nukes… and to make it legal: at the front of the store, i’ll have a rack of chewing gum for sale… That is about as ridiculous as the statement you just made.

  13. Anonymous says:

    David–
    “I’m going to continue to use the word digital”

    Yes, I know what you mean. But you did invoke reasons for being against exhaustion for some works because they didn’t degrade with use and could be copied with perfect fidelity apart from possible failures of their storage media, and I think I have successfully pointed out that the same is true of books printed on paper. If there’s to be a reason to treat some copies differently from others, it’ll have to be something else.

    “the question is whether or not the doctrine of First Sale still applies in the market fostered by the technological change.”

    Presently the answer is yes, the problem simply lies with the fact that computers necessarily copy things all the time, and any unauthorized copying of copyrighted works is currently a prima facie strict liability offense. That’s all it is. There’s no grand policy in place. It’s just an oddity about how computers actually work at a very low level.

    If some extremely incidental copying should happen to not rise to the level of infringement (the Cablevision case points in this direction), a system as I suggested in which the right and ability of access to the works is exchanged, but no new material copying occurs would handle the issue easily from a copyright perspective. There’s still an issue connected with EULAs and such, but that’s separate.

    “If First Sale or any other doctrine does disservice to authors in the new technological paradigm, you seem unconcerned with this, which suggests to me that you reject the notion of copyright as an incentive for authors.”

    I view copyright as a system for promoting the progress of science. A means to do that is to provide an incentive for authors, but only to a limited extent. For example, right now, we grant an incentive to authors in that we give them an exclusive distribution right, but then we walk that back significantly by carving a big exception into that right for transfers of copies after the first sale. This reduces the incentive — authors can’t make money from, nor can they control, later sales of copies of their work — and while some authors are upset about that (Garth Brooks and his hatred for used CD sales springs to mind) I suspect that the public benefits more from not giving the farm away to authors than it would if it did. As I said before, diminishing returns is a big deal in copyright policy.

    “More to the point, you seem unconcerned with finding balance”

    That’s right. I don’t think I’ve made a secret of the fact that I am not interested in balance at all. I want copyright that maximally serves the public interests. This will likely involve granting authors some rights for some period of time, but balance is not relevant.

    Starve a cow, and you don’t get any milk from it. Pamper the cow like a god, and you spend more money doing so than you make from it. Finding the sweet spot where you get the most out of the cow for the least cost is the ideal. But no farmer is interested in finding balance with what the cow would like.

    “as though we can keep tipping the scales so drastically toward the buy-side of the market without diminishing the capacity of the supply side and ultimately reducing both cultural and economic value for everyone”

    The two sides of the market aren’t affected identically by the same change. Those of us who aren’t math geniuses are not so lucky. And I’m not an abolitionist; I don’t want the public to have less than the greatest possible net benefit, whether this means shrinking copyright or enlarging it. The issue is simply, will the public be left better off — even accepting that fewer works might be created and published — if we reduced copyright in certain ways. While I do want more research into the issue, I suspect the answer is yes.

    “We get a monopolistic company”

    Remind me how many large book publishers there are? Major record labels? Big movie studios? I’m all for breaking things up, but let’s really just go nuts, I say.

    “that sells books at artificially low prices as a predatory means to consolidate its power and market-share”

    That certainly sounds sinister, but it’s not illegal, and it may not even be bad. The efficiencies Amazon has been pursuing are perfectly good. And if Amazon does turn out to do something bad for consumers, we can always break them up then. Plus I imagine it’s hard for any halfway competent businessman to work in the field of books and not run rings around the publishers. They’re really just hapless idiots, and it wasn’t too long ago that similar complaints were being leveled against big chain bookstores.

    “that blatantly makes works unavailable (i.e. censorship) as a “negotiating” tactic”

    The books are available. Amazon has not, AFAIK, prevented everyone from carrying them. They just are unwilling to carry them themselves. And the ability to walk away is always necessary in a fair negotiation. The book publishers are just as free to stop selling to Amazon. But instead of doing something smarter — like selling directly to customers as many other manufacturers do (Apple seems to have made a good showing in that regard) — they just seem to want to remain mired in the past, having their cake and eating it too.

    “And if these market realities are not part of the discussion with regard to what doctrine in copyright law still serves the greater good, then I think the discussion is insane.”

    Fair enough. Gutenberg’s printing press and the corresponding rise in literacy singlehandedly destroyed an entire industry of monks copying books by hand. Not to mention all the town criers that got put out of business when people started to print news pamphets and such. Clearly the only sane thing to do is to destroy the presses in order to put people back to work.

    Sigh. I know people personally who are being, or already have been automated out of jobs. I’m always very sorry about the loss of income that they suffer, but not about the work. As I see it, any job we can automate, we should automate, while ensuring that everyone still makes good money without having to work. I strongly support the idea of an age of leisure. Which, incidentally, would free up a lot of people to write that novel they’ve wanted to write, or to learn how to play music.

    “the public is already getting a really damn good deal”

    Meh. It could be really damn gooder.

    “and we still don’t really know your motivation for commenting here rather than, say, a legal peer with whom you disagree ”

    Well, you talk about interesting things here. The quality of the discussion drew me in like a moth to a flame. Besides, I’ve always enjoyed talking with laypeople (partially because I think that lay beliefs about copyright should inform our policy to some extent). Professionals tend to suffer from that Upton Sinclair quote. I may be less flexible in my position than I wish to be too, but at least my salary hasn’t bought my intellectual loyalty.

    “I simply don’t understand how anyone can insist that the value of any product is diminished solely on the basis that technology has disrupted one step in the supply chain”

    Supply is now effectively infinite. If you lived on the moon, you’d have to pay an air bill every month. But since you live on the Earth, where air is plentiful, no one insists that you pay or threatens to cut you off. It’s still valuable to you — you’d die without it! But if someone insisted that you pay for it, even if they could prove that the O2 you inhaled just now came from a plant that they owned, you’d laugh in their face, you air thief, you. Value in terms of importance has been decoupled from economic value, which for air, is basically zero.

    Just as our tradition of breathing for free, and our vast air supply have destroyed the market for air, so too can the popularity of piracy and our vast supply of Air Supply destroy the market for bad soft rock. People still want it but they’re not prepared to pay for it.

    “we talk about the black market of piracy as though it were a legitimate alternative”

    I don’t say it’s legitimate. I say that it ought to be legitimate.

    “If they don’t think so, it’s because they’ve had the virtues of “free” spoon-fed to them since childhood.”

    Who doesn’t like things for free? Also, age has more to do with comfort using technology, I suspect. It’s not simply a matter of disrespectful young punks. I certainly know numerous people of a more advanced age who are happy to pirate if they can figure out how their machines work. I’m talking about people who were out shopping for mono 45s when there was nothing better.

    “Finally, I don’t think Bobbs-Merrill establishes or discusses any policy goal in its decision. In short, Congress did not sit down to legislate a mechanism for creating a secondary market so that more people could access more books at lower prices.”

    Well, the Court and Congress merely ratified it; used bookstores predate copyright. Hell, I bet if you could go back in time to, say, Ptolemaic Alexandria, you’d find a street or two of used scroll stores. And the unimpeachable popularity of First Sale even produced an outcome in Kirtsaeng which was far better than I had hoped.

    “First Sale establishes that a wholesaler has exhausted its rights once it receives the wholesale price for its product.”

    Ooh, no. It establishes that the copyright holder has exhausted its distribution rights in a copy once it no longer owns the copy. This could be done using a third party, but it need not necessarily involve a wholesaler, and it need not necessarily require the copy to be bought at a wholesale price.

    “And I’m sorry, but I find it hypocritical when the crowd that says “this the future, we can’t go backwards,” is perfectly content to rely on outdated doctrine if it only disadvantages creators.”

    Great. A house designed and built after 1990 is an architectural work, protected under copyright. If we were to eliminate first sale altogether, it would mean that barring a specific assignment, license, or waiver of the relevant copyright, people who bought houses could not sell them. Do you think that people would stand for this? I will say on behalf of my relative the architect, that he is probably disadvantaged when people fail to pay him to get him to permit the sale of the buildings that they bought.

    Selling used copies has always happened. They’re just ordinary personal property. Copyright has never prevented this.

    But lately we’ve seen the rise of absurd adhesive licensing claiming to eliminate sales, and the rise of a new means of distribution which happens to conflict with some broad language in a statute. You’re not trying to go backwards. You’re trying to go forwards, eliminating an age old right to dispose of one’s own possessions, by insisting that someone else has a right to control it. First sale isn’t outmoded. And I have no interest in disadvantaging creators. I just don’t want to suffer a disadvantage myself. So long as it comes at no cost to anyone else, authors can have whatever they like as far as I’m concerned.

    • David Newhoff says:

      Well, Anonymous, I suppose I can balance the compliment that you pay this blog with the slight sting in your comparison of artists to dairy cows. 🙂

      With regard to the “digital” question, I actually considered not raising the degradation issue in the original post, but I believe the matter informs the question of how we define “used” in this context. This is part of the reason I also reference the hypothetical resale of a novel I either never touched or damaged considerably. I recognize that fidelity of a copy has nothing to do with the right to dispose of it as property, but I also believe we’re in a gray and dynamic area with regard to what is property in terms of media, and this ought to inform how copyright reform might anticipate the coming half century or so. The only media I own in which I have any confidence are the printed books on my shelves. By the time my children are my age, there is no guarantee that any of the machine-readable media I have purchased, whether it sits on a hard drive or a laser-readable disk, will be accessible, either because of hardware failure or change in protocols that require a new round of investment and potential conversions. (One is allowed to sell some 8-Track tapes right now, but their value is partly based on the availability of a player.) What happens to the movies I’ve “purchased” from iTunes if the codecs become obsolete? Will iTunes update these files indefinitely? What happens to my iTunes account when I die? I’ve bought maybe 20-30 movies this way, although I have little faith that these files are truly my property the same way my books are. To the contrary, I simply calculated the purchase price against the rental price and decided whether or not I would want to watch the title at least one more time. If I did, then the purchase price is a good deal, even if I know that there is every possibility that the title will be inaccessible within a couple of decades.

      All this is part of a trend away from the concept among consumers that owning media is part of a future they even want. I’ve believed for a long time that the technology wants to be a universal jukebox that provides movies, TV, music, books on demand; and this is where the market appears to be going. Why buy an album when a Spotify can bring you almost any song on demand for free or with a subscription? Likewise, we have movie, TV, and book subscription models. This is a natural direction, I think, and the question remains as to whether or not we can create sustainable business models that enable producers to continue to produce quality works. Regardless, and for better or worse, the notion of “owning” media in the mind of the consumer is in flux right now. This is another reason I think the Redigi idea is raw opportunism that doesn’t build anything new, but simply squeezes wealth out of a system for a handful of people.

      There are only a handful of ways to finance the production of creative works, and media like film and TV production is very labor-intensive no matter what technology does. I happen to think that selling/renting works directly to consumers is the best model to foster culture and free expression, and that’s the revenue stream which is disappearing or has disappeared. There was just an article the other day about pop stars making the lion’s share of their revenue from what is essentially patronage; we had Lady Gaga sponsored by Doritos at SXSW. By destroying the market in which a song is sold for its own sake, the public loses more than it knows.

      Regarding the doctrine of First Sale, I ought to have said “copyright owner,” but was thinking of wholesaler very broadly in that a wholesaler could be the author herself.

      While it’s true that there are big studios, publishers, and labels, the majority of works still come from independents. This is certainly true in the motion picture business. Very few feature films originate or are produced by the large studios; and there is no one studio powerful enough do what WalMart does to manufacturers or Amazon is doing to books. In fact, the model doesn’t even work that way. Typically, an indie producer makes a film an then seeks a distribution deal, or it lines that up during development, or it’s a co-production. It’s really all over the place.

      While I have to applaud your segue from air supply to Air Supply, I have to say that 1) if I get one of their songs stuck in my head all day, I’ll be blaming you; and 2) it’s an interesting comparison that I agree is analogous but with an entirely opposite view. Air is most definitely not free in our industrialized world; it comes at the price of stewardship, which requires education, political will, and even private and public investments of capital. The failure to pay this piper results in Beijing. Likewise, I believe an economy is an ecosystem with a delicate balance just like the environment. You say you are unconcerned with balance, which is at least honest, but I insist there is no public benefit to be had without balancing the needs/rights of creators in the same way that there is no industrialized progress to be enjoyed without balancing the science of ecology that makes breathing possible.

      I have to get on with my day and cannot respond to everything you’ve said above. Moreover, it is too late and “Hold Me Now” is already replaying in my head, so I’m going to need to address that if anything else is to be accomplished today. I do appreciate the conversation. Thanks.

      • M says:

        I have purchased, whether it sits on a hard drive or a laser-readable disk, will be accessible, either because of hardware failure or change in protocols that require a new round of investment and potential conversions.

        Filesharing websites not only act as places for rampant of copyright infringement: they serve as most comprehensive and accessible archives of human knowledge and culture. You might scoff at that, but where else can you get access to nearly all the world’s published references, music, movies, and other content both esoteric and mainstream? Nothing in the legal realm is as comprehensive and deep as the content on the “illegal Internet”.

        Then we have circumvention devices, also called “illegal code”. This illegal software is what you’d use to format shift content in forgotten formats to modern formats so that they can last generation through generation. So the tools for preserving our culture are all there. They just happen to be illegal.

        Maybe you are aware of this and that’s why you are saying “only books can be preserved”? Clearly I agree with you there. But the sad state of affairs could be fixed.

      • M says:

        All this is part of a trend away from the concept among consumers that owning media is part of a future they even want. I’ve believed for a long time that the technology wants to be a universal jukebox that provides movies, TV, music, books on demand; and this is where the market appears to be going.

        I agree with this. So look, we can make this universal jukebox. Look, at the fundamental level we have the technology to provide the sum of human knowledge and culture to all of humanity. This idea is just so deep to me. It’s not a pipe dream!!! It’s something we can do with today’s technology!!!!

        Really, I mean it, the only thing stopping this from happening basically tomorrow, at least for everyone on the Internet, and I really mean tomorrow, in that it wouldn’t even take that long… the only thing stopping this from happening…. it is copyright law as it is currently written. That’s all. That’s it. There nothing else stopping it. Copyright is the only obstacle to this dream.

        Eventually even WITH the way copyright is written we will start to converge towards this because it’s so core to the nature of what computer networks are good at doing. The law barely work as an obstacle because of this. But without the legitimacy, a lot of potential is missing. A legal universal jukebox? Instead of tomorrow, it will take decades.

        But you know, it’s the major goal. Information at your fingertips. No way in hell I will accept limitations by social-economic background either (both the billionaire and the kid in Africa should have the same, unlimited view into our universe of published knowledge and culture).

        That is in my opinion, the promise of the information age. And it’s worth fighting for. So worth fighting for.

      • Sam Flintlock says:

        @ M

        You might scoff at that, but where else can you get access to nearly all the world’s published references, music, movies, and other content both esoteric and mainstream?

        The British Library is wayyyyy better for published references, particularly fanzines. Seriously, try tracking down a copy of the (reasonably prominent at the time) UK Fanzine Bugs ‘n’ Drugs. If you can find it, I’ll be both impressed and grateful, because I’ve tried. Note that the links you’ll come across first are no longer working.

        This is something of a tangent, but you’ve stumbled on one of the problems with the techno-utopian “sum of the world’s knowledge” argument. The limited evidence we’re starting to see suggests that, actually, the Internet is not a reliable place for long term storage.

        I was part of the UK anti capitalist movement, back in the 90’s. We’re starting to see increasing academic interest in that movement now. (I was even interviewed by an earnest 19 year old student at the start of the year). But a lot of the sites that were central to that movement (Reclaim the Streets for example) are simply no longer there and are probably lost for good. At the time, I don’t think anyone even considered that future generations might want access to it, nor that it would ever not be online. It’s the kind of thing you only realise in hindsight.

        So, we’ve got no more stuff then you have for the 60’s peace movement, often less.

        The stuff we do still have online is generally PDFs, scanned from hard copies. Often that someone had lying around in their attic.

      • John Warr says:

        So true I have a large collection of radical material from the 70s and 80s that has never been put online. As I said above I’m currently going through old vinyl folk records, 30 of which are not online in any form. 80% of the links on wikipedia are dead and so it goes on. Average lifespan of a weblink is about 77 days.

      • David Newhoff says:

        I’ve said it before in many ways, but I have to insist that this “all the world’s knowledge” thing is an aspirational fantasy that makes great brand advertising and has nothing to do with the world in which we live. Like all utopian ideas, it fails to account for human nature; and one can light a candle and say a prayer for world peace every night, but it ain’t gonna happen. You don’t make the world smarter, wiser, more enlightened, or more peaceful simply by making “all information” available. To the contrary, look at the United States after two decades of increased “access” and diffusion and tell me people are smarter, wiser, or more peaceful.

        A recent report indicates that at least tens of millions of Americans still deny climate change. Because they don’t have access to information? No, because they have ample counter-information to support exactly what they want to believe thanks to this uber-democratized digital diffusion, utopia machine. The Internet is not always a tool for “information,” per se. It more like dark matter in the universe in that it will just push you farther and faster in whatever direction you were already traveling. In fact, in my most cynical and dystopian view, I will argue that the apparent rise in violent acts like these mass shootings we keep enduring are in part fueled by “information” because every psychosis out there can find a resonant narrative that translates into the logic of violence. On a more innocuous level, there was just an article in the NY Times on Sunday about social media increasing the likelihood of people faking cultural literacy, which stands to reason with so much thrown at us all the time. I rode the train the other day with one of the most prolific documentary filmmakers in the country, and he said he needs a curator to sort through all the clutter that can grab attention via social media.

        The argument is that copyrights are barriers to the idealism of making the world’s information and cultural works available even to the most disadvantaged child on earth, but I would compare this to the falsely-held belief that an unregulated financial market will serve the greater good through natural market dynamics (see housing bubble nearly destroys global economy). We keep leaving out human nature, and humans, as Anonymous rightly points out, will act in their own self interest. Sometimes, that leads to very bad, very stupid, and very dangerous things.

  14. M says:

    Adding to the overall discussion.. Consider the world without computers or the Internet. You go to the store, you buy a book. Now you own a book. You can read that book, you can lend that book out to someone else, you can give that book to children as part of the inheritance, they can sell what books they don’t like. They can cut up the book and use it as wallpaper in their home. The thing is you owned the book, and you could take advantage of that ownership in any realistic way an individual would take advantage of something they own. If you bought a book, that book was in virtually every way that mattered to the customer, his property. You didn’t even have to know what copyright is, because primary way to violate copyright was to go buy a printing press – and that’s just not what normal people do. A printing press or industrial printing is something indicted a business of printing or publishing. Copyright was nearly impossible to violate unless you owned such businesses. That is for the ordinary dealing of individuals, copyright didn’t apply very much. There was virtually no weird cases or gray areas that involved individuals either.

    Digital media, computers, the Internet, etc. is what turned copyright into a degenerate and broken law. Because now it applies to the ordinary dealings of individuals, and not just in a small way but a very profound way. With digital media, it’s very obvious that there is whole universe of things that you as in individual can violate copyright law, even obviously in ways that were considering legitimate in the past. And wow, there is a universe of gray areas now. When a law has so many gray areas like copyright, when it interferes with the ordinary dealings of individuals on a profound and frequent basis, when it is hard or arguably impossible to enforce, and even poor enforcement regularly requires things that transparently involve monitoring private citizens and blocking communications. Well these are all things that signal to me that that a law is perhaps pretty fucking bad.

    So back to that example, if you sell an iPod or a computer and you forget to wipe your persistent storage – that may very well be copyright infringement. Makes sense right? But think about that. How bizarre is that, you have to take a very useful device and well actually make it signifiantly less useful to not violate the law. Of course, as Anonymous, esq computers LOVE copy copy copy. They hate destroying data. It’s actually quite hard, deleting something on a filesystem simply deletes a reference to that file, the data is still there. It can be recovered. Ooops, is selling a computer without actually DESTROYING the contents of the HDD another gray area? Why yes, yes it is.

    Some time ago. I used to work at a university as a sysadmin and we literally just killed hardware, we sent them through this HUGE magnet to basically render them inoperable. The reasoning is so that we couldn’t be accused of violating copyright law when we excess them (sell them at auction). Here I thought to myself we are damaging perfectly good computers as part of following a law. I think back to this and realize I’ve personally destroyed hundreds of such computers. You have to easily spend like $100 per computer and possibly more for labor to make them useful again. It was always awkward. It didn’t feel right. But I didn’t have the understanding I have to day about why is was awkward. Well now I do.

    Modern copyright is just inherently fucked up.

  15. Anonymous says:

    David–
    “your comparison of artists to dairy cows” … “You say you are unconcerned with balance, which is at least honest, but I insist there is no public benefit to be had without balancing the needs/rights of creators”

    Well, I apologize if you find it insulting, but the point is simply that the various parties involved are all acting out of self interest, and there’s nothing wrong with that. I don’t think that it’s a good idea for any party’s sense of self interest to be hobbled by short-sightedness, but the point remains that perfectly valid disagreements are bound to come up. And so while balance seems like an appealing solution to the situation where what is best for party A is merely good but not best for party B, and outright bad for party C, the other issue is that they’re not all equals.

    If we have a government which derives its legitimacy from the consent of the governed, and which honestly tries to fulfill its obligations to them, it’s going to turn into a numbers game; the general public is going to have to have its interests put ahead of those of authors as a special group. This doesn’t mean that we should chain authors to their keyboards, or even that we shouldn’t grant them various benefits in the form of copyright. We should do plenty of things which are beneficial for authors. But we should measure the relative success of different options not by whether they’re good for authors, but by whether they’re good for the public. This is why I’m a reformer instead of an abolitionist; I think that what’s best for the public is some degree of copyright, but not too much or too little.

    And I think that is also a good way to address air pollution as well (which I’m against). Everyone needs to breathe, and if this entails taking measures which are to the detriment of a small sector of society which makes money whilst emitting pollution, so be it. And right now people also need the income from jobs, as well as various goods and services, which may involve processes that cause pollution to be emitted. So it’s not practical to just shut down anyplace with a smokestack either. Again, where there’s a conflict, the good of the smaller group gets suborned to the good of the larger. (There’s an exception for civil liberties, where we protect minorities against tyrannical majorities, but that’s not relevant to this discussion — any individual has the right to be an author, but no individual has the right to compel everyone else to grant them a copyright merely because they’re an author)

    “One is allowed to sell some 8-Track tapes right now, but their value is partly based on the availability of a player.”

    More properly, one has the right to sell 8-tracks right now; to say ‘allowed’ suggests that there’s someone who has granted permission, and can withhold it, which is not the case. They’re just personal property, and selling them is no different from selling a used car, or a rock that you picked up in your yard. This is one of the problems with limiting first sale; people really just don’t like being told what they can and can’t do with the things that they own. And they may have opinions about whether they do own something or not which differ from what is technically correct.

    Also, the most minor nit, but it’s also an issue based on the convenience of the format. I see cheap 8-track tapes and players fairly routinely at a flea market I go to, but my iPod is superior anyway. Hell, 8-track even got beat by cassettes.

    “All this is part of a trend away from the concept among consumers that owning media is part of a future they even want. I’ve believed for a long time that the technology wants to be a universal jukebox that provides movies, TV, music, books on demand; and this is where the market appears to be going.”

    Yes… but with the caveat that I think that what people don’t like is the loss of availability. A magic box that contained all the world’s creative works would be great, as most people lack the shelf space for copies of all of those works in more traditional formats. But everyone resents it when works disappear, or are subject to dubious alterations behind their backs.

    Lots of people get annoyed at Netflix all the time for not having absolutely everything. It’s not their fault, of course, but it’s always annoying to see that you can’t stream movie or show X — even if you can get it on DVD through the mail, which is somehow no longer convenient enough. iTunes took a long while to finally get the Beatles, and if I ever used the thing I might know what other well-known artists or albums aren’t carried there.

    And there’s also the concern with always connected devices, DRM, and the quite foolish practices of some of these companies doing things that are just creepy. Everyone remembers when Amazon deleted a bunch of already downloaded copies of 1984 because it turned out to have been in the public domain in one jxn, but still copyrighted in another.

    A device that connects to the Internet and interfaces with other hardware for display or performance can be small, solid state and cheap. Google’s Chromecast is a good example, as is the AppleTV. A proper home server that stores local copies of things is going to be more expensive, and require a little more upkeep on the part of the homeowner, who may not know what to do. The same dichotomy between convenience and control is seen elsewhere; I rent an apartment because I can’t be bothered to be a good homeowner, for example. And even my folks, who own a house, still pay for other people to take care of the yard, the pool, renovations, etc.

    So I think that people do want to own things, they just also don’t want to spend much, and they don’t want a big hassle. At the moment, ownership is coming in second, but I think it’s a strong second due to limits on the cheap availability of works. Circumstances may yet result in a home server which is small, absurdly capacious, sufficiently cheap, and managed inexpensively by a remote service provider, tilting us back toward ownership — depending on the cost of works with which to fill it. Effective cost, that is, not necessarily legal cost.

    Note also that this isn’t the first time that there’s been a shift. In the 80’s and into the 90’s, movie studios only wanted to encourage the rental market, and not sales. Therefore, tapes were generally priced very high so that only a rental store would buy them, since it could rent it out to recover its sunk cost. Then once DVDs came out, studios had decided to encourage sales as well, prices on movies fell through the floor, more or less (I remember when a tape cost anywhere from $80-$200 adjusted for inflation) and people finally started to amass large collections. Well, larger collections — everyone I knew had been taping from TV, taping from rental copies, and taping from one another’s tapes, surprise surprise. Now the studios are apparently so addicted to home video sales that they’re going crazy with the rise of Netflix, Redbox, and other popular rental services undercutting their market. There’s nothing new under the sun.

    “the question remains as to whether or not we can create sustainable business models that enable producers to continue to produce quality works”

    Quality isn’t a factor; it’s subjective, it changes all the time, it’s outside of the scope of copyright policy. If all that people can afford to make are black box plays, people will adapt. Likewise, the business models don’t have to be perfectly sustainable. The optimism of would-be authors and related workers is such that there seems to be a pretty large supply of people willing to enter the market even if others are exiting. It’s nice if people can make a lifetime career out of it, but it isn’t strictly necessary.

    “This is another reason I think the Redigi idea is raw opportunism that doesn’t build anything new, but simply squeezes wealth out of a system for a handful of people.”

    You can say exactly the same out of any community’s beloved, inevitably cat-filled, used bookstore.

    And why stop there? If I did buy a house, should I get a new house, or a used house? The former employs a lot of construction workers for a time, but the latter doesn’t really provide wealth to anyone, except for the seller (if he has equity), and middlemen like the realtor and the bank. Maybe we should legislate that all new home purchases must involve the total demolition of the existing structure, so that the purchaser has to build something new. (Apparently in Japan, land retains value but houses do not, so it’s absolutely common to see this happen over there.)

    Maybe I’m just too thrifty, but I find the idea of not being allowed to resell things I’ve bought, whether they are tangible or not, offensive. I can’t mandate that there must be a buyer, but if there is a willing buyer and a willing seller, and the product is not itself illegal in some manner, and has the proper provenance from the manufacturer, I really do not care for the idea of prohibiting the transaction just to subsidize the original manufacturer by forcing the buyers to him. Copyright already does this for the making of copies and people ignore that left and right, and that’s within the traditional bounds. Going ever further is not going to make friends.

    “There are only a handful of ways to finance the production of creative works, and media like film and TV production is very labor-intensive no matter what technology does.”

    Like I said, it depends on what you want to produce. If you’re Cecil B. DeMille, yes, you’re going to want a big budget. But you can also lower your production values quite a lot from there and still make something good. Nothing wrong with having a barn and homemade costumes.

    In any case, my personal preference is for a threshold pledge system (Kickstarter is probably the most well known example, though it needn’t be precisely like that) but with the caveat that either the copyright goes to the donors (just as would be the case with a movie studio) or that because that might be impractical, the work just goes straight into the public domain. After all, the donors probably just want the work created, and don’t care about later exploitation of it, but it would be unfair for the author to get paid and get the benefit of the copyright (which might be applied against the very same donors later).

    It’s not a new idea, really. A long time ago if an author wasn’t fortunate enough to have a single patron who could completely finance them, they could try to get funding on a subscription model. It worked for Paradise Lost. It worked for Johnson’s Dictionary. Mark Twain used a variant of it.

    “There was just an article the other day about pop stars making the lion’s share of their revenue from what is essentially patronage; we had Lady Gaga sponsored by Doritos at SXSW.”

    That’s not patronage, precisely. That’s advertising. I’ll grant that they’re similar, but usually the patron doesn’t patronize for direct commercial advantage. (Though it can be an advertisement of wealth, stability, taste, etc. Kind of like how before New Deal banking regulations were put into place, banks would tend to build amazing bank branches so as to appear reputable, and also because businesses are inevitably pillaged by management.) And advertising has brought us decades of broadcast TV. Including really overt stuff, like the US Steel Hour, or General Electric Theater.

    I agree that not having advertisement or product placement at all would be better, but it’s far from unprecedented. And if your concern is creative freedom, well, remember that publishers are apt to be parts of big conglomerates to begin with, and that even if they’re not, they do often exercise editorial control over their authors for commercial reasons. Look at how long it took for the movies to address racism merely because they were concerned that Southern audiences wouldn’t buy tickets. If you don’t want to risk someone having veto power over you, you’re stuck with self-publishing. It’s the only way to avoid compromise.

    “While it’s true that there are big studios, publishers, and labels, the majority of works still come from independents. This is certainly true in the motion picture business. Very few feature films originate or are produced by the large studios; and there is no one studio powerful enough do what WalMart does to manufacturers or Amazon is doing to books. In fact, the model doesn’t even work that way. Typically, an indie producer makes a film an then seeks a distribution deal, or it lines that up during development, or it’s a co-production. It’s really all over the place.”

    It’s changed at different times throughout history, and it’ll change again. And it’s still a pain in the ass to operate wholly independently, even if the big studios are just acting as distributors. It’s not as bad as it was before the Paramount case, but if you do try to self-distribute, you are likely to just go direct to video and skip theaters entirely.

    “While I have to applaud your segue from air supply to Air Supply”

    Thanks, I’m rather proud of myself for that one. Have a good holiday.

    • David Newhoff says:

      I’ll respond to this fully ASAP, but I was in no way insulted and am being facetious.

    • John Warr says:

      One issue that you have though is that a sizeable number of citizens are dependent on IP in one form or another for their livelihood. That isn’t just writers, musicians, and actors but the whole gamut of industries. In Europe about 38% of GDP is from IP industries, and some 56 million people employed directly and another 20 million indirectly in IP intensive industries.

      You screw up the employment of 76 million people and the price of a song is going to be teh least of your problems.

    • David Newhoff says:

      Anonymous, I can’t respond to everything here that provokes a thought, but I would like to pick up on something you said about movie producers and relate it back to what you’re saying about governance. I’m sure we all agree that the power of government is derived by a mandate of the people; but of course one of the weaknesses in a democracy or a republic is that there is little consensus on what’s good for us; and we often come to the wise decision late (see alternative energy). To have been a leader in effecting some of the hard changes we presently view as normal usually came at the cost of being terribly unpopular, often unpopular enough to get shot.

      It’s interesting that you elevate popular sentiment with regard to governance and imply that the question of whether or not copyright law serves the public can be answered by gauging how the public presently feels about it. Then, later in your response, you disparage movie studios for bowing to public sentiment with regard to producing films that deal with racism. So are crowds wise or aren’t they? Should the political leader or the artist always give the people what they want?

      There is constant tension between leadership (policy) and popularity. Most of us revere Lincoln for doing the right and unpopular thing while many of us revile George W. Bush for doing the wrong and unpopular thing. Sometimes it takes shoving the right decision (e.g. striking down Jim Crow laws) down people’s throats for a generation before it becomes the accepted norm. Creative works do this in a different way — by confronting people’s sense of normalcy and forcing or even tricking them into dealing with subjects they may not like. In fact, culture tends to lead policy, and I’m not quite sure where in history you’re starting the clock when you say “look how long it took movies to deal with race.” Just off the top of my head, In the Heat of the Night came out a year before the Civil Rights Act was passed.

      One of the reasons I remain concerned about weakening author rights in the name of Internet technology (to say nothing of Internet monopolies) is the overemphasis we already place on fleeting popularity — on what’s trending — which is what Internet economics demands. I’m sure I don’t need to list the many ways in which this vaguely adolescent form of ADD doesn’t necessarily lead to a better-informed or more culturally- enriched society. Sometimes you gotta make Citizen Kane and let people hate it for a few years before they come to understand that it’s a masterpiece.

  16. Anonymous says:

    John Warr–
    Can you provide a breakdown of that number? ‘IP’ is, after all, a notoriously expansive and yet somehow vague term. Trade secrets are probably the most important, and most numerous form of IP, but I think we’ve got a pretty good handle on that, and I can’t think of any serious reforms needed there.

    The next most important and common is trademarks. We’ve gone a bit overboard with dilution, and as an American I really don’t care about geographic indications despite the constant bitching coming from Europe; California champagne and Vermont cheddar are both fine with me so long as they clearly indicate where they’re from.

    After that are patents and copyrights. Patents do need some serious reforms, but probably not a total overhaul like copyrights do. And then there are little things, like publicity rights, which are fine during life, but really don’t strike me as needing to last longer.

    I can totally see that much GDP tied up with firms that use trademarks and trade secrets. But I’m a little dubious if you meant businesses which not only relied on exploiting the copyrights of creative works (as opposed to just incidentally writing documents which happen to be copyrighted — I write legal memos, and they’re copyrighted, but the existence of copyright is not a necessary condition for me to write those memos… unless they’re about copyright), but which could not possibly stay in business without copyrights.

    Remember also that publishers are often investors. They identify works that might recoup their investment and yield a profit, and invest in them. They’re not always right, but they have to be right enough of the time if they’re to stay in business. Further, like any decent investor, the opportunity has to be better than the next alternative. This is how you got businesses like Gulf and Western, or Coca-Cola buying movie studios when it looked like a good investment to do so, and then selling them, when it no longer seemed so good. If the copyright business were to dry up, the money would not vanish; it would just be shifted into other industries, especially given how low interest rates are right now.

    This may not be great consolation for the authors, who cannot switch gears so easily, but it’s something to bear in mind when you’re making a money-related argument. And not every field that somehow makes copyright related money is going to be as tightly tied to copyrights. A teamster who drives a truck full of movie cameras can presumably drive a truck for a different business funded by ex-publishers.

    • John Warr says:

      What other stuff is in the truck, where was it made, and where was it designed? The truth is that increasing number of US and EU jobs are tied up with IP. You have had a huge shift in manufacturing to cheaper labour markets and retention of the high skill work in design at home.

      The copyright business drives a large amount of technological innovation. People don’t invest in sound systems for audio, or optics for camera technologies unless they think that there is a market for people to buy that technology. Those people won’t buy the technology if they don’t think they’ll make a profit from it.

  17. Anonymous says:

    John,
    Yeah, as I suspected. The study you linked to says that 38.6 of the EU’s GDP is based on IP. In particular 33.9% of the GDP is trademark related. A paltry 4.2% of GDP is copyright related. (They allow for overlap, too, so even if the EU abolished copyright, it’s unlikely that GDP would drop by the entire 4.2% if some of the businesses involved could use other rights as a fallback. Similarly, 76 million people employed in IP industries, 63 million of them are in trademark related industries; Only 9 million are in copyright industries. (Again with overlap, and that’s including people who are indirectly employed by such industries, such as the aforementioned teamster)

    “The truth is that increasing number of US and EU jobs are tied up with IP.”

    Well… I wonder if it might be more accurate to say that a larger proportion of jobs are, due to jobs being lost in manufacturing and other fields. It may not be that IP — which again is an overbroad term for any meaningful discussion — is more important in its own right, just that we haven’t got much else left. This is a bad position to be in, of course, since there’s nothing that obligates other countries to respect our claims. They can always withdraw from treaties and use trading pressure to keep us from doing much about it. We need other countries too.

    I’m reminded of Dell, which outsourced its manufacturing, and then outsourced its design, and then wound up having subsidized the creation of a new rival (Acer, IIRC) upon which it was dependent, which is not a good position to be in. Ultimately Dell has been left with little more than a brand name. But the market is fickle. Sooner or slightly less soon, Dell will probably die out, having brought about the means of its own demise.

    For our economy to rely on IP rights that can be completely brought low by the simple failure of other countries to respect them is foolish. We need to get manufacturing back, and we need to have a widely diversified economy.

    “The copyright business drives a large amount of technological innovation. People don’t invest in sound systems for audio, or optics for camera technologies unless they think that there is a market for people to buy that technology. Those people won’t buy the technology if they don’t think they’ll make a profit from it.”

    I’m not sure I believe that.

    Studios themselves aren’t too big of a market The key is in what audiences want. They don’t seem to have wanted anything post-CD until Napster came along, and then they wanted that. The VCR was popular, but the studios didn’t like it. DVDs were nice, but post DVD formats have not done well. 3D has never gotten all that popular. People do like Netflix, but the studios haven’t been crazy about it.

    We’d probably have a more inventive and dynamic consumer electronics industry if they weren’t hobbled by things like the DMCA’s anticircumvention statutes or the AHRA. Maybe even more interesting still if they didn’t have to worry about copyrights. Instead we get crippled and therefore DOA formats like DAT, Minidisc, etc.

    • AudioNomics says:

      “We’d probably have a more inventive and dynamic consumer electronics industry if they weren’t hobbled by things like the DMCA’s anticircumvention statutes or the AHRA. Maybe even more interesting still if they didn’t have to worry about copyrights”

      – …Right, we would have a more interesting society if i coild just walk into your home and take shit off the shelf too.. bit that is probably not a good idea for anyone involved…

      “Only 9 Million people employed by Copyright..”

      ‘ONLY’ nine million people? wow, really? question, how many people does Facebook employ? How many does any tech company?
      9 Million people is a shit load. I don’t even think New York City is that big…

      • M says:

        Copyright makes no sense in a world where everyone has the best printing press ever invented on their desk. No livings need be lost. What you do instead is statutory licensing and maybe basic income.

      • AudioNomics says:

        M, nearly all households have “the greatest killing machine ever invented” too.. automobiles…not to even mention guns… Should we outlaw murder and manslaughter?
        Or should people be responsible for their actions?
        Machines aren’t the problem…

      • M says:

        Good analogy. Getting rid of copyright and replacing it with statutory licensing is kind of like figuring out a way to make automobiles safer so that manslaughter with an automobile is no longer possible.

    • John Warr says:

      See most of the trademark stuff is actually design. Design as in fashion isn’t afforded copyright protection so they incorporate a trademark into the design. That covers another 39 million people and 12.8% of GDP. Now you need to address why say copyright should be stripped of protection and trademarks left protected?

      With apologies to Leon Rosselson:

      They’ve been inserting little memes in everybody’s mind
      So Google’s shills can shriek there whenever they’re inclined

  18. Anonymous says:

    AudioNomics–
    “‘ONLY’ nine million people? wow, really?”

    Well, out of the EU population of over 500 million, it’s about 2%.

    But that’s not the end of the story. Remember, I’m interested in copyright reform, not abolition. Due to the way that the economic benefits of copyright are structured, the EU could institute significant reforms without significant change to that sector of their economy. Between our history under the 1909 Act and the 1976 Act, the US has proven that it’s possible to have a thriving publishing industry with formalities for published works, with shorter terms, with unlicensed library lending, with unregulated used markets, with no database rights whatsoever, etc. Likewise, the EU has proven that it’s possible to have a thriving publishing industry with slightly shorter terms than the US has had post-CTEA.

    But even if the EU did, astonishingly, go all the way to immediate abolition, that’s hardly the same thing as throwing everyone in the sector out of work. Not all authors rely on copyrights in order to make a living. It’s basically irrelevant in some entire sectors (e.g. architecture, much of the fine arts) and is just one out of several ways to make money for others. Personally, I think that abolition would go too far, but it would not be the end of either the arts or of civilization as we know it.

    The point of what I was saying was, copyright is not the keystone upon which the entire fate of the world depends, and according to the very study cited, it is not important to as many people as it had been claimed to be.

    John Warr–
    “See most of the trademark stuff is actually design.”

    Okay that is this week’s most confusing statement, I think.

    The study we’re discussing, and which you first brought up, lists ‘Design’ as a separate category from trademarks. (They mean something similar to what we in the US would call design patents) But while there is some overlap between trademarks, design, and utility patents, none of them are quite the same thing. And while some people have griped about Apple’s use of design patents, I don’t think that there’s been much call for any substantial reforms involving them. Come to think of it, I don’t know that I’ve ever heard of any (other than, as I said, people who had never even heard of them wondering why we had them to begin with). It seems to be a pretty benign area.

    In any case, I don’t think you’re correct in saying that most of the GDP and employment listed in the cited study as falling into the trademark category is actually design. The main industry in their trademark category by far is something called “Leasing of intellectual property and similar products, except copyrighted works” which unfortunately doesn’t distinguish between patent licensing, trademark licensing, franchising, etc. Further, it’s not a directly productive field; it’s literally rent-paying. The rest of the trademark industries are way, way smaller, and start out with things like “Manufacture of basic pharmaceutical products” and “Manufacture of wine from grape.” As you, and I think anyone, would expect, “Wholesale of clothing and footwear” is on the list, but it’s below things like “Manufacture of macaroni, noodles, couscous and similar farinaceous products” and “Manufacture of prepared pet foods.” And that’s wholesale — actual fashion manufacturing is considerably further down their list.

    “Design as in fashion isn’t afforded copyright protection so they incorporate a trademark into the design.”

    ‘Fraid not. Remember, we’re not talking about the US, where we’ve been wise enough to not grant copyrights to fashion because they’re not necessary to have a thriving fashion industry as our great fashion centers in New York, Los Angeles, and of course, Oshkosh.

    In France, at least, you can get copyrights on fashion. And in the EU, you can get a design right on fashion. There may be an effort to also incorporate trademarks into fashion (US brand Tommy Hilfiger is my usual go-to for a good example of this; do they make anything they don’t plaster with their colors and logo?) as a belt and suspenders approach, but it isn’t because there’s absolutely no alternatives available in Europe.

    “Now you need to address why say copyright should be stripped of protection and trademarks left protected?”

    And there’s our second place sentence.

    Copyright is the protection. The things it protects are creative works. If you abolished the protection, there would not be any copyrights left, though you’d still have creative works.

    And I don’t think that copyright should be abolished. I’ve never said that it ought to be (unless in extreme circumstances which I do not believe have come to pass or are likely to). I’m interested in copyright reform; changing the scope and duration of copyright so as to provide a greater public benefit. I suspect this will involve less copyright, but if it were clear that more would better serve the public, I’d support more.

    As for trademarks, as I said, I think we could get rid of dilution, which doesn’t seem to serve a useful purpose. But the core of trademark law is consumer protection: by regulating the marking of goods and services, customers can rely on the mark as an indicator of consistent quality of the marked goods. The quality itself may be good or it may be poor, but the important thing is that it is reliable. You know that a Mercedes is going to be fairly nice. You know that a Yugo is going to be ridiculously awful. If Zastava were allowed to put the Mercedes name, logo, and trade dress on their cars, you wouldn’t know what the hell you were getting.

    Trademark is increasingly going too far, following in the footsteps of copyright, but it can be brought back into line, and I think it might be easier, as it hasn’t strayed nearly so much.

    “So Google’s shills can shriek there whenever they’re inclined”

    Well I can’t speak for others, but I’m not a shill. I’ve been discussing earnestly held beliefs arrived at after long study and thought. And I don’t work for Google, or get paid by them directly or to the best of my knowledge, indirectly. While I’m sure that many stakeholders on all sides do have shills, this is not the sort of venue you’d see them in. It takes a lot of money to finance that sort of thing; no offense to David, but there are many better places to send them where you can get more of a bang for your buck.

    • AudioNomics says:

      “Well, out of the EU population of over 500 million, it’s about 2%”

      …including children, the elderly, the disabled… you would have to knock the population number down by around 40% to arrive at the working population, and then account for households and families.
      I still don’t see your point there…9 million is a heck of a lot of people, and that doesnt even account for part-timers and such.
      Besides which ,yeah we are talking about livelihoods, but to think professionals are the only people that benifit from copyright would be a gross misstatement. And i’m not even talking about literally anyone who has enjoyed a creative work (which would be virtually everyone… except it appears, “M”). I’m talking about everyday people. People who are empowered by copyright not to be exploited by corporations or other entities.

      “Fraid not. Remember, we’re not talking about the US, where we’ve been wise enough to not grant copyrights to fashion because they’re not necessary…”

      You are mistaken again. The fashion industry does indeed enjoy copyright protection. You’d have to prove that statement because i can think of dozens of instances off the top of my head that are protected…

      “I don’t work for Google, or get paid by them directly ”

      Care to eloborate on what “directly” means?

    • M says:

      Good post. I suppose I’m a copyright abolitionist. That means replacing it with something else though. Some kind of statutory licensing system, or just something like a basic income.

      Why can’t I support copyright? I don’t think the fundamental premise what copyright is suppose to provide (the ability to control copies) is realistic “right” to hand out anymore. Enforcing copyright is just really, really hard with the capabilities of modern technology. It worked well when copying content was an industrial activity, but computers have turned copying into a personal activity anyone can do.

      What some of these folks you are arguing against don’t seem to understand is this is a 15 year debate. Copyright has been severely unhealthy for a long time. If there was some “final solution” to copyright enforcement in the modern world, it would have happened somewhere already.

      I actually know the solution. There is a solution. It’s getting rid of the Internet and computers. All you got to do is go back the technology that existed when copyright worked. I mean the difference is the Internet and computers, between copyright working and not working. Even getting rid of the Internet is not enough. Although a lot of copyright infringement happens over the Internet, even without the Internet, computers are just so good at copying. All the offline copying that will happen will still ensure an unhealthy copyright system. You need to get rid of computers AND the Internet. Then copyright can go back to working as it used to in the good ol’ days.

      But that’s just not realistic. Nobody is going to give up their computers for the greater good of the content industry. So really, the solution is to come up with something other then copyright to fund creative work.

  19. Anonymous says:

    David–
    “It’s interesting that you elevate popular sentiment with regard to governance and imply that the question of whether or not copyright law serves the public can be answered by gauging how the public presently feels about it. Then, later in your response, you disparage movie studios for bowing to public sentiment with regard to producing films that deal with racism. So are crowds wise or aren’t they? Should the political leader or the artist always give the people what they want?”

    Well, they’re not both the same, though, are they?

    We agree that the power of government is derived from a mandate from the people, but that’s not true of artists; their power to create, to speak, to publish, is all inherent.

    Now, sometimes a government must undertake unpopular actions in the service of the people it exists in order to benefit, and all too often an artist has to create commercially viable art in order to put food on the table, but I don’t think that this fundamentally changes matters.

    Government should generally strive not to interfere with people’s lives, but where it does, it should try to do so for the better and even more importantly, only if it is sufficiently important given the nature of the intrusion. Artists will ideally be true to themselves and pursue their own vision. Though since there’s no obligation for anyone else to afford artists respect or patronage, they will have to either not sell out and carve their own niche which can support them (or support themselves through other means), or sell out to some extent or another. Copyright has nothing much to do with that, of course; the economic value of a copyright is still utterly dependent on the value the market places on the work, whether they’re highbrow intellectuals or base philistines.

    Also to be more precise about my position vis a vis copyright, I think that copyright should serve the public interest by encouraging the greatest amount of creation and publication which would not take place but for copyright, while granting as little and as short-lived protection as possible. Where two alternative copyright schemes would yield the same public benefit, the one which restricts the public the least should be preferred.

    And generally copyright, like any law, should strive to conform to cultural norms in the absence of a sufficiently compelling reason to defy them. As most people seem to be okay with some degree of piracy, and are apparently willing to stand up to extremely unfavorable laws which all but guarantee that they’d lose any legal challenge and face substantial civil and criminal penalties, excessive copyright law has two negative effects. First, as mentioned, it prohibits innocuous behavior. Second, as a law which is almost universally disrespected, it breeds contempt for law generally, which is not such a good thing.

    In the 1920s, the US embarked on Prohibition, which at the time, most people thought was a good idea. Turns out, not so much. People who were drinking continued to do so, it glamorized drinking such that it probably resulted in even greater popularity than before, it turned huge numbers of people into criminals or at least supporters of criminals, it engendered the rise of organized crime, massive corruption, and terrible violence. Even today, we’re still rooting out some of the pernicious effects of government butting heads with the people, and that’s not to mention prohibited drugs, which has been turning out to be even worse, and which we are just barely beginning to turn around through legalization.

    OTOH, as you say, it was entirely appropriate for the government to shove the right decision down people’s throats when it came to desegregation, and it’s unfortunate that we haven’t made nearly so much progress as we really must.

    There is a big difference though, between the evils of alcohol and the evils of racial discrimination. On that sort of spectrum, with minor evils on one end and colossal evils on the other, where do you think that your evil of the resale of ‘used digital media’ lies?

    “I’m not quite sure where in history you’re starting the clock when you say “look how long it took movies to deal with race.” Just off the top of my head, In the Heat of the Night came out a year before the Civil Rights Act was passed.”

    Just off the top of my head, The Birth of a Nation was one of the very first hugely popular hits, and at the time, decades later, that In the Heat of the Night was finally released, there were only basically two major black actors: Harry Belafonte and Sidney Poitier, neither of whom were very pleased about the whole situation. If Hollywood had taken the lead on civil rights, they would’ve been pushing it long before. Instead they only jumped on the bandwagon when it finally got going independently of them.

    “One of the reasons I remain concerned about weakening author rights in the name of Internet technology (to say nothing of Internet monopolies) is the overemphasis we already place on fleeting popularity — on what’s trending — which is what Internet economics demands.”

    Popularity is usually fleeting no matter what; newer forms of media may be speeding things up — remember the Middle Ages, when lute music was huge for centuries? — but this doesn’t change whether there is a lot of copyright or just a little. Copyright doesn’t dictate what the market finds appealing, it just funnels the money around differently than it would move otherwise.

    “Sometimes you gotta make Citizen Kane and let people hate it for a few years before they come to understand that it’s a masterpiece.”

    And I applaud the making of masterpieces. But copyright couldn’t care less. Title 17 doesn’t give out awards or critical accolades. It doesn’t make you famous. It doesn’t even give you money for doing a good job. It gives authors who have themselves created a popular, money-making work, the opportunity to direct the bulk of that money toward themselves.

    Citizen Kane has a copyright, but that didn’t stop it from being a commercial flop.

    • John Warr says:

      [‘Fraid not. Remember, we’re not talking about the US, where we’ve been wise enough to not grant copyrights to fashion because they’re not necessary to have a thriving fashion industry as our great fashion centers in New York, Los Angeles, and of course, Oshkosh.]

      ‘Fraid not. We create design and manufacturing software for many of your high street fashion companies. They all come to us wanting additional features in the software to enable them to incorporate trademarks into their product’s design so that it makes them harder to counterfeit, and so that the counterfeits can be seized.

      How many different versions of sportswear or equipment, or repackaging of some branded product do you see each year? Minor design changes occur in products every 3 months simply to keep a couple of weeks ahead of the counterfeiters. The time that it takes from a product hitting the market to its counterfeit is about 3-4 weeks.

      That churn can’t be a public good. Its still a golf club, its still a running shoe, its still a watch, its still a blouse, its still a pair of underpants. You have a lot of busy in the fashion market that is not for the sake of innovation.

      • John Warr says:

        [If Hollywood had taken the lead on civil rights, they would’ve been pushing it long before. Instead they only jumped on the bandwagon when it finally got going independently of them.]

        Well of course. A mass communication company is only going to make stuff that it thinks will be popular to a mass audience. Sometimes they cross fund works that they think may be ‘worthy’ but ‘bad’ commercially. We currently have evidence of ‘Art’ films, and social awareness films, being self funded and then pirated. How many such films have raised money via kickstarter: 1, 5, 10, 20? The person that tried that for a feminist perspective on the video games industry suffered months of harassment and death threats.

        Popular culture is incapable of providing longterm funding for niche works. And niche works tend to take a long time before they see their day in the light.

        What are the odds of a CBS taking a chance on a radical protest singer like Dylan? Anyone want to guess who is going to develop and promote a Captain Beefheart, or a Bob Marley?


        They have been inserting little memes in everybody’s mind
        So Google’s shills can shriek there whenever they’re inclined

    • David Newhoff says:

      Anonymous —

      The point of my response was that popularity alone, while being fundamentally democratic, is not necessarily a great indicator of what’s wise or good. The creator and the political leader both derive their “power” through popularity, so politicians often tell people what they want to hear, and movie studios try to make films people want to see. You’re not going to find me giving many people, creative or otherwise, credit for having the courage to go against the grain, so my response shouldn’t be construed in that way. The point is when it comes to popularity vs visionary in any field, this tension always exists. While majority rule is the basis of a democratic state, we also see evidence in places like local school boards where the majority can rule itself right back into the dark ages by excising science from its textbooks.

      I also think it’s unhelpful to talk about “the government” as a single entity that acts either on behalf of or in spite of “the people.” To the contrary, I’d say the Republic is actually working rather well insofar as our dysfunctional Congress accurately reflects our dysfunctional population vis a vis disparate attitudes. Politicians who say astoundingly dumb things about women’s reproductive systems appeal to right-wing, religious extremists; and Ron Paul’s incredibly naive ideas about foreign policy appeal to left-wing, young anarchists who haven’t read a history book. It’s nothing new to say that American politics is just this side of chaos.

      I assume from your many comments that you’re a libertarian, and while I understand the sentiment that “the government should interfere as little as possible,” one of the basic problems in a free society is that we’re not going to agree on what it means to interfere. Some people are convinced that the very existence of the EPA is a form of government overreach, and libertarian academics like Tom Bell have made similar arguments about copyright. In a broad sense, I think we Americans are going through a period of wanting to tear down institutions; although the rationales behind the tearing down are all over the map. And while I, as a citizen and humble writer, have my own frustrations with many systems, I happen to think certain functions like environmental protections are the kind of systems that can be naively undervalued until they’re lost.

      I feel the same way about copyright. We can abolish it or more severely limit it; and the truth is that nobody can predict with any certainty that this will benefit society. Once again, we’d have to agree on terms of course (i.e. what is a societal benefit?), but I personally have yet to encounter even a sound theory as to how society will gain from more limited copyright. Specifically regarding this thread alone, I reject the notion that the public will derive long-term benefit by expanding first sale doctrine to apply to download-only media because it would likely cannibalize a revenue stream that is already artificially low. If this has an adverse effect on a whole industry, it can have an adverse effect on the economy overall while six guys in Silicon Valley make out like bandits.

      

Back to the subject of popularity, though, I don’t think you’re accurately characterizing people’s views on piracy and copyright. From my own anecdotal evidence and from some research, Americans seem generally to still support the basic principles of author’s rights and to believe that piracy is wrong. We all know these sentiments change somewhat as we follow the demographic curve into the millennial generation, but it would be naive to say that new attitudes are necessarily smart attitudes. Below the age of 20, I would have to insist upon this rule of thumb unless we want to believe that this generation of adolescents is miraculously wiser than its predecessors. At best, we can say these attitudes are new, and every generation will reveal its own wisdom and its own folly that will only ever be squarely examined by subsequent generations.

      It’s interesting that you bring up Prohibition, which I like to think of as America’s Dark Ages. It wasn’t all that popular an idea when it started; and as you indicated, consumption went up considerably during those years. One fundamental difference though between the bootlegger and the media pirate (aside from the ack ack of Thomson Guns) is that the bootlegger provided a product the people wanted that was not legally available in any form. Today’s “complaint,” on the other hand is that “not everything I want to see is available on Netflix.” I’m sorry, but this is spoiled children whining, and not because they’re culturally disenfranchised due to copyrights. When Duke University released yet another meaningless list of titles that could have gone into the public domain in 2014, it included Bergman’s The Seventh Seal, which is presently available to rent on iTunes for $4. Oh, the humanity! Of course, you and I both know that today’s teens and 20-somethings aren’t screaming, More Bergman! They’re simply using the excuse that legal streaming and downloading services are still catching up (because they’re legal) in order to justify not paying for what they consume.

      You write: “Where two alternative copyright schemes would yield the same public benefit, the one which restricts the public the least should be preferred”

      Apropos of what I just said about Bergman (and there are many examples), we’re unlikely to agree on how the public is presently “restricted.” If people really couldn’t access cultural works in a time when technology should make it easier, then we’d probably be on the same side; but access has absolutely increased, and it’s dirt cheap. I’d care if people truly didn’t have access, especially to educational works; I’d care if real markets cannot evolve; I’d care if creators were utterly unable to create new works; but I don’t care if Google has a harder time monetizing somebody’s remix video that will go viral for a week; and I don’t care if Disney wants to hold onto Steamboat Willie until the end of time.

  20. M says:

    Anonymous,

    I really like your posts and philosophy so far. So for me, the opposition to copyright entirely revolves around copyright enforcement. That’s generally the thing I focus on primarily. I see lots of people talking about copyright, and I think that’s not the right debate. It’s not hard to state copyright as a good thing. But do we encode every “good thing” into law? Should we write laws to abolish death and disallow gravity to take effect on our spacecraft?

    Clearly, a law without a realistic way to enforce it is not a worthwhile law. Wouldn’t you agree? So when it comes down to the debate on copyright, even if copyright happens to be some great thing, it always comes down the question, is copyright enforcement possible? And as a computer scientists, that’s where I see copyright breaks down. It’s entirely in copyright enforcement that my contention with the futility of copyright arises.

    I’m not unique in this either. Many people in my field are cynical of the idea of better copyright enforcement. But this doesn’t come from some secret anti-copyright books they make us read in CS classes. It comes from an understanding of how computers and computer networking works. This is where the disconnect lies.

    It’s not stupidity here. These pro-copyright folks are usually very clever people. It’s just an ignorance of the underpinnings of technology.

    And they know it. They don’t claim to understand technology. So the content industry and even Congress often ask the tech community for advice on how to enforce copyright. They know that if anyone has the solutions, wouldn’t tech have them? Right?

    And they seem to always get unsatisfactory answers. You can almost see it in their faces at the hearings for instance. Actually some folks I’ve talked to seem convinced that there is some kind of vast computer science conspiracy to keep copyright down because of this. You can see a little of that in this comments section over time, here even.

    What makes it extra frustrating is copyright used to work. It’s not some new experimental law that they can be like “fuck it, we tried” and call it a day. Copyright has like a history spanning centuries. A history of working, dare I say, really, really well. That’s what makes it super hard to let go of. But, you know let it go, let it go. 🙂 When it comes down to it, modern technology took away the precepts that allowed copyright to function for so long. That’s what it comes down to.

    • AudioNomics says:

      *sigh*
      Again… you keep going back to the zero-sum strawman. I get it though, you spend you days plodding through binary code, so it’s either “on or off” to you. There is no, never has been, nor will there be a “final solution” and that’s what YOU don’t grasp (for different reasons to what you state being the problem). No one is coming to take all computers away, no one is wanting to “shut down the internet”. The funny thing is you must mis-represent the pro-copyright to even have a point. Do you even read the comments (besides those that you agree with)? You are arguing with yourself about points that only YOU are making… have fun talking with yourself, i have better things to do.

      • M says:

        I’m not talking about elimination of piracy. I don’t see a solution that will result in a healthy or working copyright system at all.

      • M says:

        That’s the fundamental point. Even if copyright is the best thing ever, it doesn’t change anything. You can make all the arguments about how great copyright is for jobs, the planet, and how it saves kittens and puppies till the cows come home. But without having any way to enforce copyright in a satisfactory manner, none of that matters. I don’t care if you don’t want to talk about this. But it’s the only thing actually worth talking about.

      • M says:

        And one last point, I want to elaborate on why “copyright enforcement” is the only real thing that matters:

        Any discussion on the value of copyright is academic. There is value in it surely, but it’s still academic. Why?

        Because WHO are you trying to convince here? Most of the existing political establishment is largely on your side regarding the value of copyright. Anything except the most hardline stance on the value of copyright is a joke to them. Maybe they’ll be replaced over time with more politicians with “balanced” views on the value of copyright, but as of now, YOUR idea of copyright, perhaps one even stronger then yours has all the political capital in Washington.

        Seriously, go watch some of the copyright hearings. It’s so ridiculously obvious that if they could fart out a solution to the rampant copyright infringement, they would. They don’t know how. Most of what they are doing in these hearings is just interrogating tech companies for hours on how to solve the copyright problem and getting back unsatisfactory answers. Especially the witness from Google. Like wow. They won’t leave her alone.

        It’s not some kind of conspiracy either, technologists aren’t a anti-copyright hive mind that secretly work to wreck your way of life. But both Congress and the content industry seem to agree on the idea that the tech sector are the most equipped to deal with the copyright problem. Why is nothing happening? Why has nothing happened for 15 years?!

        It’s because technologists, like Congress themselves, have no idea how to fix copyright in a satisfactory manner. In fact, they have a bit more knowledge about why fixing copyright is so difficult, and are even cynical of the idea of the idea of copyright because of this. Much has been written about this. The most obvious conclusion here is that modern technology has changed the precepts that copyright relied on to function properly. Please, please, read what I just linked to.

        Perhaps that’s just something you can not accept, but it’s a damn shame. Every year you fail to to figure out better ways to make the economics of content creation work in the future, you are helping dig your industry’s own grave. Can’t you see this? What is more important to you, a working copyright system or a working music industry???

  21. Anonymous says:

    AudioNomics–
    “I still don’t see your point there…9 million is a heck of a lot of people”

    And as I said, reform would pretty certainly not throw many of them out of work, and even outright abolition probably would not.

    “and that doesnt even account for part-timers and such.”

    Got a cite? I took a look, and as far as I can tell, they just counted jobs, presumably both full and part-time.

    “but to think professionals are the only people that benifit from copyright would be a gross misstatement”

    I certainly hope that they aren’t the only people who do. As I’ve said a number of times, I’m interested in how copyright can benefit all the people of the country. Where a special interest conflicts with the public interest, while I’d like to see them reconciled in some appropriate way, I’ll side with the public unless there’s an important enough reason not to.

    “I’m talking about everyday people. People who are empowered by copyright not to be exploited by corporations or other entities.”

    The same people who are disempowered by ubiquitous adhesive contracts into licensing the same exploitative corporations or other entities? Copyright provides few if any direct benefits for ordinary people. Instances of people’s home videos getting turned into ‘La Donna Nella Docia’ are probably pretty rare. In any case, the solution is simple: bring back the registration requirement, plus some. If you are worried about some octopus like company exploiting you, a simple form, a deposit, and a token fee would be all that you’d need to protect the works in question. But if you aren’t interested enough to take even minimal action to protect yourself, why should anyone else?

    “You are mistaken again. The fashion industry does indeed enjoy copyright protection. You’d have to prove that statement because i can think of dozens of instances off the top of my head that are protected…”

    Not in the US they’re not. Here, clothes would be treated as a work of sculpture, being three-dimensional objects. 17 USC 101 lays out the law:

    “‘Pictorial, graphic, and sculptural works’ include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.

    A ‘useful article’ is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a ‘useful article’.”

    This is copyright’s utility doctrine (trademarks have something similar). The idea is that copyright is the domain of general knowledge, while patents are the domain of utility. The two subject matters do not overlap, though it is possible for a single article to embody more than one sort of subject matter (e.g. you could have a sweet airbrushed painting of a 70’s Ford Econoline van (copyrighted) painted onto the side of an actual 70’s Ford Econonline van (full of patented parts), which also has various Ford emblems and marks attached to it (trademarked)).

    The key is that for an pictorial, graphic, or sculptural item which also possesses a utilitarian function other than merely conveying information, any otherwise copyrightable work will not be copyrightable unless it is somehow separable from the useful part of the item. Physical separability is the easiest case; the airbrushed painting can be removed from the van. Conceptual separability is a pain in the ass, and I’m fairly convinced that there’s no real standard, but that judges just BS an explanation to cover rulings made from their guts. Honestly, if you think that fair use can be difficult, you clearly haven’t looked at the utility doctrine.

    Anyway, the point is that clothing has utilitarian functions. A clever design printed on a t-shirt is easily separable. But the style, shape, cut, fabric — these are all inseparable from the article of clothing as an article of clothing, which has useful features such as to protect the wearer, and so is uncopyrightable.

    There’s a paper you can read about the subject here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=878401

    “‘I don’t work for Google, or get paid by them directly ‘

    Care to eloborate on what “directly” means?”

    The ordinary meaning ought to work fine. They’re not a client of mine, they don’t send me money. I wish I could get them as a client, it’d be good for business.

    John Warr–
    “We create design and manufacturing software for many of your high street fashion companies. They all come to us wanting additional features in the software to enable them to incorporate trademarks into their product’s design so that it makes them harder to counterfeit, and so that the counterfeits can be seized.”

    Yes, that’s trademarks. I said we don’t grant copyrights on clothing. You also may benefit from reading the paper I provided a link to above.

    “That churn can’t be a public good. Its still a golf club, its still a running shoe, its still a watch, its still a blouse, its still a pair of underpants. You have a lot of busy in the fashion market that is not for the sake of innovation.”

    That churn is exactly the desired public good.

    In copyright, what we want is the greatest number of works created and published and then minimally protected and into the public domain. Quality is irrelevant, as is innovation, actually. It’s all about quantity. Not copyrighting fashion seems to be working better than copyrighting it would be.

    A shoe store that stocks thousands of different types of shoe is superior to one that has a single style of dress shoe and a single style of athletic shoe.

    M–
    “Clearly, a law without a realistic way to enforce it is not a worthwhile law. Wouldn’t you agree?”

    Well, against whom might we enforce it? I agree that it’s a bad idea to enforce copyrights against the masses who just want free stuff (although not simply because perfect enforcement would be difficult). OTOH, we still have a workable system permitting an author of a novel to sue a movie studio if they make a film adaptation without getting permission. I don’t think that copyright is so unsalvageable that we must abandon it entirely.

    • M says:

      Well, against whom might we enforce it? I agree that it’s a bad idea to enforce copyrights against the masses who just want free stuff (although not simply because perfect enforcement would be difficult). OTOH, we still have a workable system permitting an author of a novel to sue a movie studio if they make a film adaptation without getting permission. I don’t think that copyright is so unsalvageable that we must abandon it entirely.

      That’s a good point. Actually it goes back to why copyright actually worked really well in the past. It worked great when it was largely a business regulation. There are only so many businesses, especially those with the ability to seriously violate copyright (publishers and broadcasters mostly).

      I agree that there are reasons not to enforce copyright on individuals even if it could work. But the fact that it is so difficult is what makes it a non-starter I believe, so that’s what I try to focus on. Ugh, there is just so many levels to have opposition to copyright on. 🙂

      In a broadcast setting, copyright is easier to enforce because it’s both easier to detect (the nature of mass media ensures that there are more connected observers or rather, higher average opportunity for observation). It’s also easier to enforce because you have to realistically enforce it on far less entities to have a large measure of enforcement overall.

      Nerd tangent: I’m sure there is a graph theoretic explanation for this. That is if you model information flow as a graph that makes publishers as nodes and paths of information transmission as edges. In a pre-information age, this graph will have a small number of nodes with many, many edges (these nodes be publishers and broadcasters for instance), like a kind of supernode. With computers and the Internet, you now have many more nodes with far less edges. You still have supernodes, but propagation often happens in a less one-to-many manner. You can say the rate of convergence to a minimum spanning tree is much slower, or rather, the centrality of the graph is lower. That is, copyright works well in societies where a centrality measurement of information propagation is high. This was the case in the era of information technology that arose immediately after the rise of the printing press, and well, right before the creation of computers. / End nerd tangent

    • John Warr says:

      [That churn is exactly the desired public good.]

      Really? A trainer shoe is a trainer shoe. Nothing has changed in the trainer in the 3 months from one design to another design. The change is cosmetic only. Its churn for no reason other than to be different from the copycat counterfeit article. Wrapped in that is a growing sense of consumerism, which mostly ends up in landfill. That isn’t a public good.

    • AudioNomics says:

      anon, thanks for proving my point… re: fashion. I wasnt disputing the fact that you can’t copyright the idea or functionality of clothing (as we all know these things don’t fall within copyright)… but you can most certainly copyright cloth patterns. and what is clothing if not cloth? (it’s right there in the name).

      ” Got a cite? I took a look, and as far as I can tell, they just counted jobs, presumably both full and part-time.”
      i would look at the study’s methodology. Most likely they would use a person’s claimed profession as it appears on their tax return filings.

  22. M says:

    And yeah, the common idea of shutting down a website doesn’t work. Courts have been trying to shutting down websites for years, only to have the website pop back up minutes later. Often using the same name and design!!

    Websites are INFORMATION. They are not tied to infrastructure. It’s not like you shut down a factory making drugs or counterfeit goods accomplishes something. It takes time to “make a new factory”. It at least delays the supply. It doesn’t take time to make a new website. Copying and relaunching a website is slightly more difficult then copying a song.

    How do you stop that AudioNomics? All you need to do is implement RFC 3514 on the Internet, right?

    The fact of the matter is, you have no actual solution for making copyright work.

  23. Anonymous says:

    AudioNomics–
    I think you’re misunderstanding what I was saying about fashion. The utility doctrine is similar to the merger doctrine. In both cases, you have uncopyrightable subject matter (functionality; an idea) which is so bound up together with a creative work, that the law refuses to grant a copyright to the latter, lest it improperly grant a copyright to the former.

    As for cloth patterns, you can copyright a book which instructs people as to how to make a piece of clothing, and you can copyright an illustration showing how to do it, and you can even copyright a decorative print silkscreened onto a piece of clothing (e.g. the floral design printed on an aloha shirt). But you can’t copyright the clothing itself, and you can’t assert a copyright on instructions or illustrations concerning how to make clothing against the actual clothing itself.

    (There’s a similar rule for the same reason that prior to the pointless enactment of the AWCPA, architects could copyright their blueprints, but could not sue someone for building a house according to those blueprints)

    “Most likely they would use a person’s claimed profession as it appears on their tax return filings.”

    Maybe. I know the UK uses a tax system that doesn’t really have so many filings; other EU members may do likewise. In any case, I think they just got the numbers from some third party source, and I honestly don’t care enough to spend time looking. Feel free to find out and report back, though.

    John Warr–
    “The change is cosmetic only.”

    So you’re saying that the world only needs one Mondrian composition painting? I mean, they really only differ from one another cosmetically, after all. Somehow I think this is not going to be a popular opinion among modern art lovers.

    “Wrapped in that is a growing sense of consumerism, which mostly ends up in landfill.”

    That’s outside the bounds of copyright policy, I think. The clothing manufacturers could always switch to a more on-demand model of manufacturing to avoid waste whilst retaining flexibility.

    “A trainer shoe is a trainer shoe.”

    I bet you’re one of those guys who, if he ran the world, would have everyone wear color-coded but otherwise identical jumpsuits.

    • John Warr says:

      I think that any one can wear whatever type of trainer they want. The problem comes when an artificial desire to replace a serviceable item is manufactured partly to keep ahead of counterfeiters.

  24. Anonymous says:

    David–
    “I assume from your many comments that you’re a libertarian, and while I understand the sentiment that “the government should interfere as little as possible,” one of the basic problems in a free society is that we’re not going to agree on what it means to interfere.”

    Hardcore liberal, actually.

    I have no problems with the government helping people to realize and enjoy self-fulfillment. But neither should it unduly restrict the freedom of individuals. That’s why, if copyright helped authors but cost me nothing, I’d wholeheartedly support it, or at the very least wouldn’t oppose it. But since as it is implemented, I do pay for it in terms of restrictions on what I can do, it is appropriate for me to look at whether I am getting some return on it as well.

    “I feel the same way about copyright. We can abolish it or more severely limit it; and the truth is that nobody can predict with any certainty that this will benefit society.”

    It will definitely benefit society, the question is whether there is another option which will benefit society more (taking into account the harm it does as well).

    “(i.e. what is a societal benefit?)”

    More works created, more works published, more works in the public domain.

    “but I personally have yet to encounter even a sound theory as to how society will gain from more limited copyright.”

    Imagine that copyright were of infinite duration. Imagine that there were no exceptions made for first sale, for fair use, for educational uses, etc. People can’t quote from works, without permission which may or may not be granted, and which may or may not cost money. People can’t sell or rent anything embodying a creative work (which often includes things like the labels on uncopyrightable goods) without permission, and likely without paying. Non-personal libraries cannot exist without permission and payment. Musicians suffer new limits as they lose things like the section 115 compulsory license (and the effect it has on the rates charged for non-compulsory licensing by providing an alternative). And so forth. Further, statutory damages are increased even further, and the use of various means of investigation and discovery are also enhanced.

    And all of this may increase the number of works created and published, but the increase in rent seeking, transactional costs, and potential liability may actually cause a reduction.

    Now then, does this sound as though it would be a better world to live in than the one we live in now, or a worse one?

    If you feel that it would be a worse one, then you’ve discovered a situation in which society would be better served by less copyright.

    If it’s at all possible to have too much copyright, then you must agree that there is a possibility that we already have too much copyright.

    “Specifically regarding this thread alone, I reject the notion that the public will derive long-term benefit by expanding first sale doctrine to apply to download-only media because it would likely cannibalize a revenue stream that is already artificially low.”

    How on earth is it artificially low? The record labels cannot force people to buy from them, and people cannot force the record labels to change their prices. They have to take their chances with supply and demand. Of course the supply is effectively infinite, and it’s only the artificiality of copyright which can work to hold the price above basically zero. But I don’t think that’s the manipulation you’re talking about.

    “Back to the subject of popularity, though, I don’t think you’re accurately characterizing people’s views on piracy and copyright. From my own anecdotal evidence and from some research, Americans seem generally to still support the basic principles of author’s rights and to believe that piracy is wrong. ”

    I agree. For certain types of piracy. People don’t like commercial pirates much, and it’s easy to label a gang with an industrial scale DVD press and a warehouse as being wrong-doers. But I think you’ll find that people also don’t have much of a problem when their best friend plugs in a flash drive and copies over the Top 40, plus another Top 99,960, and also some movies.

    You see the same thing with drugs. No one likes vicious Latin American drug gangs that run around killing people en masse, but there’s far less shaking of heads and condemnation about the odd hippy in the backwoods with a greenhouse.

    This is why I’ve been suggesting that we legalize piracy if by individuals, if not commercial in nature. By all means, let’s keep going after the rest, even the ad-supported guys. But we can probably legalize at least some of it in conformity with public opinion.

    “It wasn’t all that popular an idea when it started”

    Oh it was, actually. I’m not going to say that it was universally beloved or anything, but it’s one of those things where everyone tried to distance themselves from it later. There’s a great history book, “Only Yesterday” which is about the 1920s, and is interesting because it was written in 1930. While this means that it might ignore some things that we now think were important with the benefit of hindsight, it also means that it offers a far more contemporaneous point of view than we now possess. I highly recommend it.

    This is a lengthy excerpt, but I hope you’ll bear with me:

    “If in the year 1919–when the Peace Treaty still hung in the balance, and Woodrow Wilson was chanting the praises of the League, and the Bolshevist bogey stalked across the land, and fathers and mothers were only beginning to worry about the younger generation–you had informed the average American citizen that prohibition was destined to furnish the most violently explosive public issue of the nineteen-twenties, he would probably have told you that you were crazy. If you had been able to sketch for him a picture of conditions as they were actually to be–rum-ships rolling in the sea outside the twelve-mile limit and transferring their cargoes of whisky by night to fast cabin cruisers, beer-running trucks being hijacked on the interurban boulevards by bandits with Thompson sub-machine guns, illicit stills turning out alcohol by the carload, the fashionable dinner party beginning with contraband cocktails as a matter of course, ladies and gentlemen undergoing scrutiny from behind the curtained grill of the speakeasy, and Alphonse Capone, multi-millionaire master of the Chicago bootleggers, driving through the streets in an armor-plated car with bullet-proof windows–the innocent citizen’s jaw would have dropped. The Eighteenth Amendment had been ratified, to go into effect on January 16, 1920; and the Eighteenth Amendment, he had been assured and he firmly believed, had settled the prohibition issue. You might like it or not, but the country was going dry.

    Nothing in recent American history is more extraordinary, as one looks back from the nineteen-thirties, than the ease with which–after generations of uphill fighting by the drys–prohibition was finally written upon the statute-books. The country accepted it not only willingly, but almost absent-mindedly. When the Eighteenth Amendment came before the Senate in 1917, it was passed by a one-sided vote after only thirteen hours of debate, part of which was conducted under the ten-minute rule. When the House of Representatives accepted it a few months later, the debate upon the Amendment as a whole occupied only a single day. The state legislatures ratified it in short order; by January, 1919, some two months after the Armistice, the necessary three-quarters of the states had fallen into line and the Amendment was a part of the Constitution. (All the rest of the states but two subsequently added their ratifications–only Connecticut and Rhode Island remained outside the pale.) The Volstead Act for the enforcement of the Amendment, drafted after a pattern laid down by the Anti-Saloon League, slipped through with even greater ease and dispatch. Woodrow Wilson momentarily surprised the country by vetoing it, but it was promptly repassed over his veto. There were scattered protests–a mass-meeting in New York, a parade in Baltimore, a resolution passed by the American Federation of Labor demanding modification in order that the workman might not be deprived of his beer, a noisy demonstration before the Capitol in Washington–but so half-hearted and ineffective were the forces of the opposition and so completely did the country as a whole take for granted the inevitability of a dry régime, that few of the arguments in the press or about the dinner table raised the question whether the law would or would not prove enforceable; the burning question was what a really dry country would be like, what effect enforced national sobriety would have upon industry, the social order, and the next generation.

    How did it happen? Why this overwhelming, this almost casual acceptance of a measure of such huge importance?

    As Charles Merz has clearly shown in his excellent history of the first ten years of the prohibition experiment, the forces behind the Amendment were closely organized; the forces opposed to the Amendment were hardly organized at all. Until the United States entered the war, the prospect of national prohibition had seemed remote, and it is always hard to mobilize an unimaginative public against a vague threat. Furthermore, the wet leadership was discredited; for it was furnished by the dispensers of liquor, whose reputation had been unsavory and who had obstinately refused to clean house even in the face of a growing agitation for temperance.

    The entrance of the United States into the war gave the dry leaders their great opportunity. The war diverted the attention of those who might have objected to the bone-dry program: with the very existence of the nation at stake, the future status of alcohol seemed a trifling matter. The war accustomed the country to drastic legislation conferring new and wide powers upon the Federal Government. It necessitated the saving of food and thus commended prohibition to the patriotic as a grain-saving measure. It turned public opinion against everything German–and many of the big brewers and distillers were of German origin. The war also brought with it a mood of Spartan idealism of which the Eighteenth Amendment was a natural expression. Everything was sacrificed to efficiency, production, and health. If a sober soldier was a good soldier and a sober factory hand was a productive factory hand, the argument for prohibition was for the moment unanswerable. Meanwhile the American people were seeing Utopian visions; if it seemed possible to them that the war should end all wars and that victory should bring a new and shining world order, how much easier to imagine that America might enter an endless era of efficient sobriety! And finally, the war made them impatient for immediate results. In 1917 and 1918, whatever was worth doing at all was worth doing at once, regardless of red tape, counter-arguments, comfort, or convenience. The combination of these various forces was irresistible. Fervently and with headlong haste the nation took the shortcut to a dry Utopia.

    Almost nobody, even after the war had ended, seemed to have any idea that the Amendment would be really difficult to enforce. Certainly the first Prohibition Commissioner, John F. Kramer, displayed no doubts. “This law,” he declared in a burst of somewhat Scriptural rhetoric, “will be obeyed in cities, large and small, and in villages, and where it is not obeyed it will be enforced. . . . The law says that liquor to be used as a beverage must not be manufactured. We shall see that it is not manufactured. Nor sold, nor given away, nor hauled in anything on the surface of the earth or under the earth or in the air.” The Anti-Saloon League estimated that an appropriation by Congress of five million dollars a year would be ample to secure compliance with the law (including, presumably, the prevention of liquor-hauling “under the earth”). Congress voted not much more than that, heaved a long sigh of relief at having finally disposed of an inconvenient and vexatious issue, and turned to other matters of more pressing importance. The morning of January 16, 1920, arrived and the era of promised aridity began. Only gradually did the dry leaders, or Congress, or the public at large begin to perceive that the problem with which they had so light-heartedly grappled was a problem of gigantic proportions.”

    “Today’s “complaint,” on the other hand is that “not everything I want to see is available on Netflix.” I’m sorry, but this is spoiled children whining, and not because they’re culturally disenfranchised due to copyrights.”

    Maybe so, but it appears to be sufficient justification for people. Calling them names does not seem to actually be a productive way of stopping them. A couple of years ago, BitTorrent announced that there were about 150 million BT users. And of course there are other means of piracy as well. Are they all spoiled children whining, or is there a point where that explanation begins to break down?

    “we’re unlikely to agree on how the public is presently ‘restricted.'”

    It’s mostly listed at 17 USC 106.

    “If people really couldn’t access cultural works in a time when technology should make it easier, then we’d probably be on the same side; but access has absolutely increased, and it’s dirt cheap.”

    Access alone is not good enough.

    “but I don’t care if Google has a harder time monetizing somebody’s remix video that will go viral for a week”

    Me neither.

    “and I don’t care if Disney wants to hold onto Steamboat Willie until the end of time.”

    This I care about immensely. If for no other reason than that I personally would like to make some Mickey Mouse cartoons, but because of this, I am unable to legally do so.

    • David Newhoff says:

      Anonymous —

      It appears that our fundamental difference on copyright boils down to your feeling that its restrictions presently outweigh its benefits, while I do not believe this to be the case, whether I’m looking at the issue as a consumer or a creator. In this recent response, you reiterate the primary benefit of what we’ll call rolling back copyrights as “more works produced and more works in the public domain.” I have reiterated — and have written several posts arguing the point — that this ideal of “more” sounds nice in theory but is unrealistic, either culturally or economically. Quite simply, we already have more media to feed upon than we have time with which to do so, and a lot of that media are already free. Add to this the sad reality that more Americans want to see Duck Dynasty than will ever want to see, say, a mass-distributed production of Beckett’s Endgame, and the notion that the public is underserved or restricted really feels like a purely academic argument. We can argue about consumers being restricted in principle, but I think it’s very tough to make a case that we are restricted in practice by copyrights anymore than we are restricted by the bounds of our own mortality.

      As for creators, I have to assume that you’re functionally making a case for unshackling a new crop of amateurs. This is not a derogatory statement but an economic one. As we consumers are already saturated with more “content” than we can devour, it only stands to reason that more stuff in the pipes will not result in substantively more stuff that is commercially viable or culturally significant. It will just be more stuff. And it breaks the rule of economics 101 to say that when supply exceeds demand, suppliers find opportunity for enterprise. Meanwhile, weakening copyrights simply leaves the suppliers who are talented, determined, and lucky enough to build enterprise from their works vulnerable to the corporate raiders of our times exemplified by Google. I believe your sentiments and theories are humanistic but that they naively serve up individuals to new corporate powers far more insidious than the most rapacious studio or label.

      From a debating standpoint, I feel you’ve articulated a fallacy in your reasoning in this last response. It seems as though you are saying that indefinite and expansive copyrights from the present regime would be bad, and therefore reduced copyrights from the present regime must be good. Even if we conceded the premise (which begs many questions), the conclusion does not follow. It’s as though you’re saying copyright law is malaria, in which case we can all agree that more is worse and less is better. As you’re an attorney, I can’t imagine that you’re assessing any complex body of law in this manner, and since nobody’s talking about extending terms or abandoning fair use, etc., I don’t know why you’d bring them up in this way.

      I say that prices are artificially low in part because prices are driven by what the market is willing to pay, and consumer perception of value has been skewed by forces outside the market. The most obvious force is 15 years of piracy teaching a whole generation to expect whatever it wants for free. When free is a constant option, it affects legitimate streams; and we get Spoitfy, which a fantastic model for consumers and provides zip in terms of revenue for the makers of music. I love that I can listen to whatever I want on demand through the service, but there’s no way shrinking revenues lead to growth in music production, which almost certainly means fewer independent artists. Don’t get me wrong, lots of prices are artificially low, including gasoline in the US and many of the goods we buy at WalMart.

      While I think prohibition a fascinating topic, I’ll try to avoid getting too far in the weeds on that one other than to say that according to “Prohibition: Thirteen Years that Changed America” by Edward Behr, the bill was debated for three months when it was first introduced to the House and passed initially with a vote of 255 to 166. And Wilson vetoed it twice. You’re right to say that the concept enjoyed a certain popularity, but the more interesting story appears to be how a relatively small group can steadily evangelize a terrible idea until it takes root. I’m tempted to say the same thing about Silicon Valley and its anti-copyright agenda, but I imagine you’d say something similar about enforcing copyrights in the digital age. On that score, I’m not sure why you mention legalizing piracy by individuals since the major copyright holders with the muscle to influence policy have generally given up on individual users in the U.S. and are focusing their efforts on the for-profit enablers of piracy.

      I believe for all the restrictions you can point to imposed by copyrights, that I can point to as many opportunities created by them. And part of the reason is that the creative process is like water, which naturally flows around obstacles, and we never quite know where it will go. As I write this, my kids are watching some TV show depicting a contest in slow motion accompanied by a track that clearly evokes Vangelis’s score for the film “Chariots of Fire.” It’s true that if the original score were presently in the public domain, the producers of the show would likely go ahead and use it, but why is that better than paying the composer for the mimic track, who in turn contributes to the economy by her labor? In your ideal model, rather than one middle-class fee getting paid, the producers of the show would just use Vangelis for free and pocket the difference. Forgive me, but that’s not normally how we liberals look at the economy.

      Yes, I have to insist that Americans in particular who complain about a dearth of affordable media of any kind are whining. I would say so to my own kids or my closest friends. And numbers don’t mean anything. As I keep saying, if sixty million people think climate change is a hoax, then there are sixty million people I don’t mind calling dumb. And on that subject, I think it’s worth paying attention to macro forces at play right now that can make some of what we’re both talking about a tad moot. It took about 20 years worth of debate to write the 1976 copyright act. Given some of the present challenges facing the world for resources like food and water in a period of climate change, the whole conversation about the “abundance” of entertainment media might sound really absurd in 20 years.

      I don’t know if you’re serious or being wry when you say you want to make a Mickey Mouse cartoon, but if you’re serious, and it’s not a parody, then I say as I say to myself or any other creator, “Too bad. Make something else.”

      • John Warr says:

        [lots of prices are artificially low, including gasoline in the US

        if sixty million people think climate change is a hoax, then there are sixty million people I don’t mind calling dumb
        ]

        Here is a quote from GW Bush’s speech write David Frum’s book The Right Man:

        “I once made the mistake of suggesting to Bush that he use the phrase cheap energy to describe the aims of his energy policy. He gave me a sharp, squinting look, as if he were trying to decide whether I was the stupidest person he’d heard from all day or only one of the top five. Cheap energy, he answered, was how we had got into this mess. Every year from the early 1970s to the mid 1990s, American cars burned less and less oil per mile travelled. Then in about 1995 that progress stopped. Why? He answered his own question: because of the gas-guzzling SUV. And what had made the SUV possible? This time I answered. ‘Um, cheap energy?’”
        http://www.lrb.co.uk/v29/n06/john-lanchester/warmer-warmer

        Cheap that encourages or promotes unrestricted consumption causes problems. Whether it is in global warming, or lack of investment in culture the causes are the same instant gratification. Big tech, big oil, tobacco, are all the same they’ll uses their wealth to manipulate a population into greater and greater consumption, often to the detriment of the society they feed upon./


        They have been inserting little memes in everybody’s mind
        So Google’s shills can shriek there whenever they’re inclined

      • David Newhoff says:

        It’s funny, John. I know that quote and think about it often. It sticks out because it’s one of the few times I thought ol’ W. said something smart.

  25. AudioNomics says:

    anon says
    “Hardcore liberal, actually”

    …I think you are confused. An actual liberal wouldn’t support companies that actively destroy unions. wouldn’t support the most powerful corporations in the world to the detriment of individuals and Human Rights (you are no better in this regard than hardcore bible-thumpers whom pick-n-choose whichever scripture lets them justify questionable actions). Copyright is THE only thing standing in the way of a corporation trampling over the little guy; the ONLY bargining chip we the people have to protect our life’s work. If you’re not a Google shill, you sure as heck act like one.
    There is zero parallels between drugs and copyright; prohibition and copyright. Are you a practicing lawyer? Are you ‘on-the-job’ ?

    • David Newhoff says:

      In all fairness, I don’t think Anonymous has said anything here that justifies questioning his stated politics or accusing him of shilling. I’m a liberal but have many liberal friends whose views I think are preposterous, including their views on copyright. I assumed Aonn’s political affiliation to be libertarian in the context of discussing the role of government, and I was wrong, which is no big deal. Frankly, I think many of these labels are becoming increasingly harder to associate with specific views anyway. For instance, liberal paranoia and conservative paranoia are indistinguishable from one another. I think Anon’s view of a future with weaker copyrights is naive but have to assume on the face of what he says so far that he earnestly believes in his position. (I also assume he is a he, but have to pick a pronoun.)

    • Patrik says:

      If you’re not a Google shill, you sure as heck act like one.

      And apparently s/he has an infinite amount of free time to comment. To wit, Anonymous has written over twice as many words in these comments than the blog writer himself, including the original post and not counting all the quotes and excerpts (David: 5,461 words; Anon: 12,210(!) words). I don’t much like the shill accusation, but c’mon, the person obviously doesn’t have a day job unless it is internet commenting. Even the timestamps make that clear.

      Further, Anonymous seems to be employing the Gish Gallop on almost every post. What was the original blog about? Selling used digital media files and whether it even makes semantic sense to call a digital file “used.” What does Anonymous post about? Everything that has ever been brought up in a copyright debate. In every post. It’s a classic debate tool; overwhelm the discussion with a torrent of mostly unrelated arguments that no one has enough time to refute. Creationists employ this nonsense constantly.

      Anonymous wrote:
      “This I care about immensely. If for no other reason than that I personally would like to make some Mickey Mouse cartoons, but because of this, I am unable to legally do so.”

      What’s stopping you from making a Mickey Mouse cartoon now? My niece drew a Mickey Mouse comic strip about a month ago; it’s hanging on her mother’s fridge. No lawsuits yet!

      I’m sure you mean that you would like to be able to distribute and profit from your Mickey Mouse cartoons. I can think of a lot of other big companies who would very much like the same thing.

  26. Anonymous says:

    AudioNomics–
    “An actual liberal wouldn’t support companies that actively destroy unions”

    I’m all for unions (at least up to the point that a particular union becomes corrupt or hopelessly incompetent, at which point its leadership should be replaced) and I’d like to see unions take a greater role in the management of businesses in the pursuit of synergies between management and labor. E.g. rather than a union fighting automation to preserve jobs, I’d like to see them work with management to promote automation whilst also pursuing new lines of business to which superfluous workers can be moved and made relevant again. Of course this is a temporary solution and may not always be successful; there’d also need to be a means to handle a shrinking job market altogether, and the plundering of pensions, etc. clearly indicates that business-labor relations is not the right place for it. I’m a big fan of a guaranteed basic income. Which also solves some funding issues related to copyright, happily.

    “wouldn’t support the most powerful corporations in the world to the detriment of individuals and Human Rights”

    If I want my phone to work, I have to pay AT&T. If I want it to be particularly useful, I use Google for lack of sufficiently good alternatives. If I want decent Internet service at home, I pay Comcast, also for lack of sufficiently good alternatives. I usually take mass transit, and I don’t currently own a car, but if I do need to get somewhere remote, I have to borrow or rent a car, most likely fueled with gas from one of the big oil companies. When I wash my clothes, I’m sure that some of the chemicals involved ultimately could be traced back to big companies that are far from clean themselves.

    I’m sorry if I disappoint you by not living off the grid in a shack in the woods somewhere, but the way the world currently is, it’s hard to have principles without suffering some level of hypocrisy. The best I can do is to recognize it, try to reasonably minimize it, and hope that the situation can be changed for the better in the future.

    Are you really doing so much better? Especially if you consider second order effects of your lifestyle?

    “Copyright is THE only thing standing in the way of a corporation trampling over the little guy; the ONLY bargining chip we the people have to protect our life’s work.”

    That’s not a good enough rationale, I’m afraid. People are generally self-interested. I accept that giving you a copyright is good for you, but what’s in it for me?

    Also, let me point out again that I’m a reformer, not an abolitionist. I have no problem with granting you some sort of copyright. I think the single most important reform is a system of strict formalities to grant copyrights, so that we only grant them where they are deemed necessary. (Kind of like the difference between putting antibiotics in the water supply, vs. only dispensing them when they’d do some good because there are dangers that come from their overuse)

    I doubt that you’re going to argue that your post here, today, which I am replying to, is your life’s work and that you absolutely must have a copyright in it, lest you be trampled. The post is not that big of a deal, and even if copyright didn’t exist, you probably would still post.

    So why not reserve copyrights for when they’re actually important? We can even take the artist’s word for it: a work for which an artist does not formally seek a copyright doesn’t get a copyright; a work for which the artist does seek a copyright (no matter how apparently lacking in commercial or artistic value) gets a copyright. All you’d have to do is fill out a brief form and send in a copy (so that we know what it is that we’re protecting, and who it is that we’re giving the right to; much like how land deeds are recorded, motor vehicles are registered, etc.) and pay a token fee (merely to discourage people from automatically and unthinkingly claiming copyrights; a nominal $1 fee would be perfectly sufficient).

    That way if a work is your life’s work, you get your bargaining chip. But if a work is not important enough to you to be worth taking even a few steps to protect, no one else has to worry about it either, and if they should happen to want to use it, they can, freely.

    “If you’re not a Google shill, you sure as heck act like one.”

    I don’t know, what does one act like? I like a lot of their products and services. I don’t like their efforts to track people, and I absolutely loathe all forms of advertising. (The best use for something like Google Glasses IMO is to overlay ads seen in the real world with, I don’t know, pleasant pictures of artwork. Landscapes instead of billboards, odalisques on the side of the subway train, etc. Obviously an audio component will also become necessary.) I’d like them to pay their fair share of taxes, but I recognize that it’s better to have an across-the-board tax reform to make this happen than to pressure individual companies, which would then be placed at a disadvantage compared to rivals that manage to fly under the radar.

    “There is zero parallels between drugs and copyright; prohibition and copyright. Are you a practicing lawyer?”

    One of the core skills for a lawyer is to show how two situations are or are not somehow analogous to one another, so that a legal rule that applies in the earlier situation can, or cannot be, applied in the latter. An example: pretty much the foundational case for civil rights jurisprudence, used to dismantle racial discrimination, is US v. Carolene Products, which dealt with a regulation prohibiting adding non-dairy fat to skim milk. For the purposes of the argument I was making, a comparison between Prohibition and copyright was perfectly sensible.

    And yes, I am a practicing lawyer, and I concentrate on copyright and trademark. I am making earnest arguments in good faith. While I’d like to have everyone enjoying a more rigorous scientific basis for these policy discussions, with the benefit of copious, serious, disinterested research — of which there is presently very little, unfortunately — so long as I have to go with my gut feeling, I think my ideas are generally good ones and would be beneficial if implemented.

    But as David basically said, people can disagree about these things.

    • AudioNomics says:

      I apologize for making personal remarks.

      That said, I’m not talking about using this service or that. If you get rid of copyright (and i consider weakening it to a point where it might as not be there… as getting rid of it) you are essentially handing over ALL of the revenue (instead of most of it- as it is now) to the owners of the pipes.

      “If I want my phone to work, I have to pay AT&T. If I want it to be particularly useful, I use Google for lack of sufficiently good alternatives. If I want decent Internet service at home, I pay Comcast…”

      …And yet if you want content, you should just take it? where is the logic in that?

      “That’s not a good enough rationale, I’m afraid…”

      …Really? this is basically what you just said: If you buy an iphone, where am “I” benifiting? you get to use it all to yourself, that’s selfish.
      Is that your argument? Do you not believe in personal property?

      “One of the core skills for a lawyer is ….”

      … to change the subject to something else …that someone might nod their head to, which has zero to do with the topic at hand and instead try to entices the other person to debate an unwinable argument about a different subject altoghether?

      “I don’t know, what does one [shill] act like? ”

      …I believe I’ve answered that…

    • AudioNomics says:

      anon said “I doubt that you’re going to argue that your post here, today, which I am replying to, is your life’s work and that you absolutely must have a copyright in it, lest you be trampled. The post is not that big of a deal, and even if copyright didn’t exist, you probably would still post.”

      I have no reasonable expectation of, nor interest in copyright in a post in the comments section of a blog. That has zero to do with the conversation at hand. You may consider changing you handle from anonymous to ‘Strawman’.

    • John Warr says:

      [We can even take the artist’s word for it: a work for which an artist does not formally seek a copyright doesn’t get a copyright; a work for which the artist does seek a copyright (no matter how apparently lacking in commercial or artistic value) gets a copyright.]

      See here is the problem. I don’t need to commercialize the stuff I make. That it has commercial value is evident in the usage requests I get. People that similarly have a non-commercial use are welcome to reuse. Even some commercial re-use is OK within context. What isn’t OK is the commercial exploitation by a large corporation, and I don’t believe that I should have to pay any protection money in order to keep their hands off.


      They have been inserting little memes in everybody’s mind
      So Google’s shills can shriek there whenever they’re inclined

  27. Anonymous says:

    AudioNomics–

    “If you get rid of copyright (and i consider weakening it to a point where it might as not be there… as getting rid of it) you are essentially handing over ALL of the revenue (instead of most of it- as it is now) to the owners of the pipes.”

    Not handing over.

    ISPs don’t care what you download. If copyright went away, they might see some more business, but then popular legal services like Netflix can cause similar effects today.

    What would happen instead would be that no one would get that revenue; the size of the pie would shrink, and consumers would have more money left in their wallets, which they could spend on anything.

    “…And yet if you want content, you should just take it? where is the logic in that?”

    You’re changing gears rapidly. Paraphrasing, you had asked me how dare I call myself a liberal if I did business with those monsters. And I pointed out that I am a liberal, but I do business with them because I live in the real world. Now you’re asking me how dare I not do more business with more monsters! I commend your chutzpah.

    Also I’d remind you that everyone seems happy to pay for services they asked for and received. Even a copyright abolitionist would not have a problem with paying an artist to paint him a picture.

    As for goods, well, I remember that piracy PSA that went something like “You wouldn’t download a car,” to which the popular response was “I would if I could.” If we could make them in the real world, would you oppose the use of those replicators from Star Trek? The argument’s basically the same as for creative works after all.

    “Do you not believe in personal property?”

    In exactly the way I believe in copyright. They’re both utilitarian. Your right to personal property extends to the limits of your ability to defend it from people who would take it from you. Anything that goes beyond that doesn’t come from you, it comes from other people voluntarily agreeing to your claim, and agreeing to help you defend it, for self-interested purposes (you must recognize their claims and help them defend their property). It still boils down to a question of ‘You and whose army?’ but you can have armies with more than one person in them.

    So why don’t I own the Empire State Building? Because if I tried to take it over, lots of people would stop me. But if I had more people on my side than are on the other side, I would own it. I’d be the Duke of New York, A Number One.

    “I have no reasonable expectation of, nor interest in copyright in a post in the comments section of a blog.”

    Well, the Copyright Act has given you a copyright in it regardless. And it’s so clear-cut that you have every reasonable expectation of a copyright on a comment to a blog. I’m glad to see that you don’t have an interest in having such a copyright, but that doesn’t change the problem which is that you have the right anyway, despite not wanting it. (You haven’t even disclaimed it!) What I want to do is to reverse that, so that you only get copyrights that you want, so long as you take very simple steps so that we know.

    John Warr–
    “I don’t believe that I should have to pay any protection money in order to keep their hands off”

    It’s not protection money; the payment would go to the government, not businesses, and it would be unrelated to the actual or perceived value of the work. Fees for special rights or services from the government are hardly unknown.

    “Cheap that encourages or promotes unrestricted consumption causes problems. … lack of investment in culture”

    I’ll be damned if I can think of any problems that free access to our culture would directly cause. Don’t we build public libraries precisely for that purpose? As for lack of investment in culture, you mean less investment. There’s always going to be some; we know because most of human history didn’t have copyright, but did have culture, some of it still considered to be among the best ever. Copyright is only one funding source. It’s not always the most important, or even important at all.

    Patrik–
    “Anonymous has written over twice as many words”

    I’m long-winded. It’s a bad habit.

    “the person obviously doesn’t have a day job unless it is internet commenting. Even the timestamps make that clear.”

    Oh, how I wish. No, I have a weird schedule (especially lately) and get by on relatively little sleep. And more importantly, copyright policy is my favorite hobby. I know lawyers who spend an unusual amount of time watching TV, or playing sports, or just traveling constantly. I like to talk about copyright. That’s part of the reason the Internet is so great for it; it would not be good for me to become a bore on the subject to real life friends and acquaintances who have other relevance to me.

    “What does Anonymous post about? Everything”

    No, I’d say I always post the same thing, every time, pretty much. Whenever I see a copyright policy question (as opposed to an actual question of law and fact, like ‘what would this clause in the contract do’) I jump straight to whether it would be in the public interest. All I’ve got is the one hammer, but luckily enough for me, everything appears to be a nail: The original post was about selling files pursuant to first sale (which, as I pointed out pretty early, has nothing to do with whether or not they’re ‘used’) and I went right to whether or not it’d be in the public interest.

    “It’s a classic debate tool”

    Nah, I’m not that sneaky. Like I said, I really only ever talk about the one thing.

    “What’s stopping you from making a Mickey Mouse cartoon now?”

    Well, it would be prima facie infringement. Maybe it would be fair use, but that’s always risky. That I might not be caught shouldn’t be important; isn’t there some saying about what you do in private being a proof of character? And yes, as you correctly inferred, I’d also like to distribute them. That there are other people who’d like to do the same doesn’t strike me as any reason not to allow it.

    David–
    “your feeling that its restrictions presently outweigh its benefits”

    I’m not sure whether the restrictions presently outweigh the benefits — which would mean that literally having no copyright law would be better than the present situation — but I would say that I suspect that the benefits could outweigh the restrictions more than they presently do. That is, I want copyright to be as good as we can possibly make it, and I don’t think we’re there now.

    Assuming that we agree on the basic policy rationale of copyright, this is good news! It means that we’re no longer arguing as to whether the lady is a whore (to use the old joke), but what her price is.

    “Quite simply, we already have more media to feed upon than we have time with which to do so, and a lot of that media are already free. Add to this the sad reality that more Americans want to see Duck Dynasty than will ever want to see, say, a mass-distributed production of Beckett’s Endgame, and the notion that the public is underserved or restricted really feels like a purely academic argument.”

    We can’t use copyright to address the issue of quality directly, though. No one wants some faceless bureaucracy to grant or not grant copyrights on the basis that the work was sufficiently good to merit one, nor do we want to go to court to overturn their judgment, and force judges to become our arbiters of taste of last resort. Besides, taste is subjective. If people would rather see Duck Dynasty, we can’t say that they’re wrong. For all I know, never having seen it, there’s some sort of unappreciated creative genius present in the show, which I’m missing, in much the same way that people of earlier generations regarded hip hop, or metal, or rock, or jazz, as just being noise. The way to get more quality works is to have more works generally; some number of them will be good. As for getting people to appreciate them, well, you can lead a horse to water….

    As for having too many works, aside from the issue of subjective taste meaning that the subset of works which are of quality being different for different people, that’s not a new condition. The Library of Alexandria, existing long before copyright (in fact they treated piracy as a tool for acquisitions) is said to have had hundreds of thousands of scrolls, and many thousands of works. I doubt that anyone back then had enough time to read them all. And there must have been lots of other works scattered around the world, some oral texts, others works of art besides books. Should we have just stopped then?

    I can’t agre with that idea. More works is necessarily better than fewer works.

    “And it breaks the rule of economics 101 to say that when supply exceeds demand, suppliers find opportunity for enterprise.”

    AFAICT in the real world, they try to. Even if we’re at the saturation point for roofing nails, if someone figured out how to make better or cheaper nails, they’d have an incentive to do that, though it would displace some of their rival suppliers. The market might stabilize after that, as everyone found a new equilibrium, but there usually seems to be something or other that disrupts it again.

    And anyway, we’re talking about artists here. If they were perfectly economically rational, the large majority of them would never try to become professional artists; they’d make more money as plumbers or something even under the current system of copyright. Apparently, lots of people don’t act as rationally as the dismal science would suggest; everyone wants to be that next great American novelist, or at least the next great American Idol. They keep trying, and whether they succeed or not, society benefits by an increase in the number of works.

    “Meanwhile, weakening copyrights simply leaves the suppliers who are talented, determined, and lucky enough to build enterprise from their works vulnerable to the corporate raiders of our times exemplified by Google.”

    That depends on the way that we weaken it. I agree that we shouldn’t go too far, but we should definitely go too far enough. Suppose that we make noncommercial infringement by natural persons lawful. How would that help Google? As a corporate entity, they can’t directly use it. Because the infringement would have to be very strictly noncommercial (without swallowing the infringement itself) ads couldn’t be run, using the works as a draw. While it very well might reduce the amount of money that copyright holders get, I don’t see that it causes Google to benefit more. Does it leave publishers open to some other attack? If so, what, and to what end for Google?

    I don’t regard Google as being inherently actively hostile toward publishers; rather, I think that they just don’t want to be bothered while they pursue other goals. Of course, as I have no relationship with Google other than using some of their products and services, I have no special knowledge.

    “From a debating standpoint, I feel you’ve articulated a fallacy in your reasoning in this last response. It seems as though you are saying that indefinite and expansive copyrights from the present regime would be bad, and therefore reduced copyrights from the present regime must be good.”

    No, that wasn’t my intent. I was saying, in response IIRC to your question as to whether we could compare two copyright laws to see which was better and which was worse, that it is entirely possible. My strawman law was made to be stronger and worse than what we have now, only to draw attention to that fact that, although we don’t have the rigorous quantitized analyses we need, we can basically tell the difference between two alternatives and might be able to tell which is better. It was not meant to represent any particular proposal, just to be obviously different.

    I am NOT saying that more is always worse and less is always better. Rather than malaria, let me compare copyright to vitamin A. Too little vitamin A causes people to go blind and can also result in death due to a compromised immune system as well as other, lesser problems. Too much vitamin A causes a host of health problems including bone breakdown, fever, weight loss, etc. What you want is to have the right amount.

    As far as copyright goes, I think we have got too much, but I grant that’s a gut feeling. If it can be shown that we’d be better off with more (and I acutely feel the problem of there being too little research on this subject) then I’ll gladly support more.

    • James_J says:

      wow… just wow
      I hope half of that post was a joke, anonymous.

      If not, i like you’re home better than mine… are you a gun owner by chance?

    • John Warr says:

      [It’s not protection money; the payment would go to the government]

      If remedies for exploitation of property cannot be obtained without paying a fee then that is indeed protection money. Even more so if the major thieves are pouring vast sums of money into the political system to make it so. Imagine that having had your wallet stolen in NYC the police first ask whether you have taken out NYC police insurance against pick pockets.

      [Don’t we build public libraries precisely for that purpose?]

      Yes we do, and the libraries buy a number of copies of the works according to the perceived popularity. In some place they record the number of access of those works and compensate the copyright holder accordingly.

      [Suppose that we make noncommercial infringement by natural persons lawful. How would that help Google?]

      Google isn’t the one doing the direct infringement, it is enabling the infringement of others and charging a fee (by way of ad placements). As a copyright holder I have no relationship with Google yet Google profits from the works via the exploitation of other people using its systems. So yeah I’d be quite comfortable with a purely non-commercial usage providing there are no adverts on any of the access pages.

    • M says:

      Hell yeah we have too much copyright. I’m seen some of these folks admit as much, but they aren’t willing to comprise on anything until “copyright enforcement” works. That’s the gist of it. Robert Levine actually compares it to dimensions (length, breath, enforcement?), and admitted that the length and breath is too much, but it’s all meaningless without enforcement. And he’s largely right.

      I hate to sound like a broken record, but who gives a shit if copyright is good or bad, when it can’t be enforced? How can copyright be properly enforced without draconian measures is beyond my know how, beyond anyone’s know how apparently. I have yet to see a proposal for adequate copyright enforcement that doesn’t either have huge holes or basically neuters the Internet as a free communications medium.

      Keep the talk about enforcement and they will show their dirty side. You’ll get people who normally support copyright be like “oh hell no”. Remember SOPA/PIPA changed NOTHING about copyright as a concept – it was entirely a copyright enforcement bill (and if it’s anything like UK’s version of SOPA, it would have done fuck all to stop copyright infringement). It was actually tame compared to some of the ideas floating around. One regular here even mentioned his idea: to post anything on any website, it should ask for your credit card number and charge you a $100 deposit for every post. Like holy shit, I’m sure the masses will go for that one. That’s even ignoring the difficulty to enforce that with the way TCP/IP works.

      Copyright WAS a law that only largely applied to the activities of publishers and printing houses. The music they can’t face is the fact that copyright no longer works when you try to enforce it on the whole fucking population. That’s all there is to it.

  28. AudioNomics says:

    anon wrote “So why don’t I own the Empire State Building? Because if I tried to take it over, lots of people would stop me. But if I had more people on my side than are on the other side, I would own it. I’d be the Duke of New York, A Number One.”

    What. a. novelty. A lawyer who doesn’t believe in law and civil society.
    I’m just curious… are there a lot of anarchists in your profession? You don’t have to tell me your entire manifesto again, a simple “yes or no” would suffice.

  29. M says:

    Go ahead folks, let’s pretend copyright is the best thing ever for once. Woo hoo, you win!! Now post all your great ideas to actually enforce copyright.

    • AudioNomics says:

      Fix the DMCA.
      Takedown should mean staydown.
      Block the file, not the link…
      No safe harbor for ISPs that haven’t registered a DMCA agent.
      Clarify “red flag knowledge”. if you are getting millions of legitimate takedown notices, you can’t play dumb.. these sites need to be delisted from search until they get their act together or be taken down completely if they don’t.
      Stop incentivizing piracy. if you don’t act in good faith, you shouldnt get a free pass, cut off funding and payment processing and advertisments to these bad actors.
      There’s plenty more, but this would be a good start…

    • M says:

      Fix the DMCA.
      How?

      Takedown should mean staydown.
      How do you deal with re-encoding and polymorphic data manipulations in general?

      Block the file, not the link…

      So if someone DMCA takedowns a Dropbox link, everyone who has ever downloaded that song (from iTunes, etc.) should have their file deleted?

      No safe harbor for ISPs that haven’t registered a DMCA agent.

      So make most of the Internet liable (including this very site)? Also, how do you deal with international websites?

      Clarify “red flag knowledge”. if you are getting millions of legitimate takedown notices, you can’t play dumb.. these sites need to be delisted from search until they get their act together or be taken down completely if they don’t.

      What happens when they are put back up 5 minutes later? How are you going to stop that? (No using tautologies like “just take them down”, I want a technical countermeasure that explains how to take them down).

  30. Anonymous says:

    James_J–
    “I hope half of that post was a joke”

    No, it wasn’t. Also, any half?

    “If not, i like you’re home better than mine… are you a gun owner by chance?”

    I’m not, actually. I’ve never been very interested in firearms, and I’ve never seen any reason to own any. You can to try to take it, of course, but remember that I did point out that people voluntarily band together to mutually defend each other’s property, and it only takes three digits to call the police.

    John Warr–
    “If remedies for exploitation of property cannot be obtained without paying a fee then that is indeed protection money.”

    I think we’ll have to agree to disagree there. Partially because it’s a common, existing practice in a number of fields, and partially because the point of the registration fee isn’t to collect money, it’s to get claimants to consider whether they want the right. People wouldn’t treat it seriously enough if it was totally free; they’d just always seek it.

    “Imagine that having had your wallet stolen in NYC the police first ask whether you have taken out NYC police insurance against pick pockets.”

    Well there is an old saying that the police are just the biggest gang, but you may be interested to know that such practices are known. I recall reading not too long ago the story of a fire department that allowed a house to burn down because the homeowner had chosen not to pay the local fees to support the fire department. I think it would be better to consider the nature of the government services provided as to whether they should be individually billed and whether they should be withheld for non-payment. Not putting out fires is probably too far.

    But a copyright isn’t so essential, the need doesn’t arise in an emergency, and the danger of not having one is far less. I think that fees — as we’ve traditionally had (and still do to some extent) in the US — are on safe ground.

    M–
    “Robert Levine actually compares it to dimensions (length, breath, enforcement?), and admitted that the length and breath is too much, but it’s all meaningless without enforcement. And he’s largely right.”

    An interesting point. I’ve never been fond of perfect enforcement as a general rule (good for murders, less so for speeding tickets; one of those is more common than the other) but I’ve generally just been lumping it in with scope. I’ll have to think about that some more.

    AudioNomics–
    “What. a. novelty. A lawyer who doesn’t believe in law and civil society.”

    Oh, but I do. I just don’t pretend that it’s a natural state of affairs. We created law and civil society because they’re more pleasant than the alternative. Same with copyright: some form of copyright leads to better outcomes than no copyright at all. That’s why I support copyright, after all. The problem is that all of these things can also go too far, whether that means producing less than optimal levels of good, or being actually worse than a state of nature. (E.g. Would you rather take your chances in a state of nature or an ultra-draconian malignant dictatorship?)

    I’m an American. I know that people just outright taking stuff by force of arms is how the west was won, not to mention damn near everywhere else. You ignore this at your peril.

    “I’m just curious… are there a lot of anarchists in your profession? You don’t have to tell me your entire manifesto again, a simple “yes or no” would suffice.”

    I don’t know. I’ve never asked. I don’t even know what the baseline number of anarchists in the general population is, to have something to measure against.

    “Fix the DMCA.”

    Well that’s nice and vague. Can I assume that by fix you mean repeal all of Chapter 12, for a start?

    “Takedown should mean staydown.”

    This is not possible to reconcile with the model of servers which allow for users to add content without it being validated by a human being working for the firm that is using the server. Making the net totally curated would destroy most of the value of it.

    And it’s not actually possible even with human curation, since the curators 1) won’t know of or practically have the ability to verify the existence and applicability of rights, licenses, assignments, etc., and 2) are fairly easy to trick in practice.

    “Block the file, not the link…”

    Also not really practical, and increasingly not really possible. One of the nice bits of fallout from the Snowden affair has been increased interest in end-to-end encryption.

    “No safe harbor for ISPs that haven’t registered a DMCA agent.”

    This is already true except for the 512(a) safeharbor. As that subsection deals with transitory communications, rather than material actually stored somewhere, any notice to be served on an agent would come far too long after the fact to be of any use. You’re literally asking to close the stable doors after the horse has gone. Also, this would be bad for the innumerable businesses that like to offer free wifi to patrons. The restaurant and bar lobbies have successfully foiled the attempt to do away with the homestyle exception (we even lost the case before the WTO and we still have it!), so you may find this difficult as a practical matter too.

    “Clarify “red flag knowledge”. if you are getting millions of legitimate takedown notices, you can’t play dumb”

    First, you’re assuming that they’re legitimate. That they are not challenged by the user doesn’t mean that they’re legitimate. Second, each one is a separate and usually unrelated offense. Every day, I’m sure that hundreds, maybe thousands of speeding tickets are issued on the highways in the city where I live. Do all of these offenses somehow aggregate together to indicate that the highways themselves are culpable for their users, and that the state’s Department of Transportation needs to face serious punishment?

    Normally liability for the offenses of another requires more of a connection than that you’d find it convenient to apportion blame against everyone, everywhere.

    • AudioNomics says:

      Yes you’re right, i just sit at home sending thousands of dmca notices because its just sooo fun to do…[rolling eyes]… Being the sole owner of the property, there is zero question of legitimacy of the takedowns. If you have a license, i know who you are. I love how the EFF brings out the strawman of the seemingly “big” problem of all these false dmca notices.(all 12 of them.). what a joke. .. and they get in such a huff (usually while sitting next to the Google representative that gives a sinister sneer when his eff lacky gets up to talk) about this, but don’t seem to give a shit about the person whose actual Constitutional and human rights are being raped a million times over in plain daylight. Never do they mention this as being the problem… nope its always some video game review that they don’t mention goes right back up if it is indeed a false claim.

      It’s funny … the abolitionist here never seems to disagree with one of your “reform” stances.

    • M says:

      Anonymous,

      You’re literally asking to close the stable doors after the horse has gone

      See this is exactly why I focus on enforcement. It’s where the dirtyness comes out and their argument breaks down.Hard. In just one post, AudioNomics just put the vast majority of the Internet in incredibly hot legal water. In a sense, AudioNomics broke the Internet. This isn’t a mistake, they want to destroy the Internet. They want to make it hard and expensive to post things on the Internet, for instance, to make the Internet more like a broadcast medium where copyright can work. Because they know as we know, there is no way to have “Internet as a free communications medium” and “copyright”. One has to go.

      This is why they WANT you to focus on copyright as a concept. That’s their turf. They can make moral arguments there, as long as we ignore enforcement. Enforcement is our turf. Any sites that have anti-copyright slants, almost exclusively focus on the dirtyness that arises from copyright enforcement.

      SOPA/PIPA was all about enforcement. Remember that. It wasn’t a law to extend copyright, or make make copyright broader. Just a new way to enforce it. And it’s was damn tame compared to some of the insanity that comes up on comments sections like this one.

      If they can’t come up with an acceptable enforcement capability, the whole “copyright is great” charade is about as useful as arguing about how great it would be if we could cut off gravity to our spacecrafts. Don’t fall for it!!

    • M says:

      Hey man, I just want to also add to your argument that any polymorphic manipulation that can recover the original or the meaning in the file will do. ROT13 is enough to defeat the “remove the file, not the link” and “staydown” (he was actually referring to the same exact thing). So countermeasures are trivial here. But that’s the only problem.

      There is also the issue that if a copyright holder bans a specific file from a service: Now lets say that file was a popular file from iTunes, you effectively deleted it from everyone’s music library regardless if they bought it legitimately or not.

      It comes down to the fact that copyright infringement is tied to any specific attribute of data. And a file data. Copyright infringement requires a determination subject+data+action (the most trivial example is: original copyright holder + song he owns + publish = obviously legal, not the copyright holder + song he doesn’t own + publish = ignoring fair use (which shouldn’t be ignored, obviously) illegal. In both cases, the file is the same, but only one case is it copyright infringement. Therefore, links (which in at some cases involves an action and subject) is the broadest level where copyright infringement can even be shown.

      So they are chasing an idea that is flawed in at least two damning levels.

  31. Anonymous says:

    AudioNomics–
    “Yes you’re right, i just sit at home sending thousands of dmca notices because its just sooo fun to do”

    Well you’re not obligated to do so. You could just sue the infringing users straight off the bat. The takedown procedure was meant to be easier, and it is. No one said it would be trivially easy, though. Would you like it all reduced to a single button-press, and then for someone else to press the button for you, while we’re at it?

    “Being the sole owner of the property, there is zero question of legitimacy of the takedowns”

    You’re conflating two issues.

    First, the legitimacy of the notice also depends on whether the use is an infringing use or not. If the work is used in a non-infringing way, the copyright holder may not recognize that (it’s not even always apparent to courts) or may not care. While I appreciate that the user is in the best position to argue that it is not infringing, it is nevertheless important. Lack of real adversarial due process before action is taken is one of the problems with the takedown system.

    Second, the notice does have to come from the copyright holder, but while you may know who you are, the ISP has no way of knowing. Thanks though for helping me to come up with another good reason to have a mandatory registration system: because it would help copyright holders and designated agents authenticate each others’ identities. This also factors into the next point:

    “If you have a license, i know who you are.”

    Not always true, actually. I direct your attention to 17 USC 205. See, one of the reasons why we register the ownership of real property, and significant pieces of personal property, such as cars, is because it’s easy for them to be sold and resold, and sometimes sold twice by a single seller. With land, at least you can tell when two different people try to take possession of it. With a copyright, that’s harder for obvious reasons.

    A copyright holder might have licensed a power to sublicense (even more likely if there are multiple copyright holders), meaning that he wouldn’t know who all of the legitimate licensees are unless the licensee reports back, which might not occur. A copyright holder might have assigned the entire copyright to two different people, neither of whom is aware of the other, both of whom acted in good faith. (This is the 17 USC 205 scenario) A copyright holder might have obtained a copyright, not knowing that a bunch of third parties were granted licenses by the previous holder, which are still in effect.

    And licenses can simply be confusing, even to the parties involved. Though I suppose I shouldn’t wish for a standardized system of licenses, since I have a transactional practice and reading, writing, and negotiating bespoke licenses is important for me.

    Yet ISPs are expected to deal with all of this?

    “but don’t seem to give a shit about the person whose actual Constitutional and human rights are being raped a million times over in plain daylight”

    Copyright isn’t a human right (it conflicts with free speech; they can’t both be human rights), and I don’t think I’d call it a Constitutional right either, as that document doesn’t obligate Congress to exercise its power.

    Still though, given your charming claim of this being rape, I can’t wait to see your Public Service Ad concerning the real plight of first world problems, and how we can help for only the price of a triple venti soy no-foam latte a day.

    “It’s funny … the abolitionist here never seems to disagree with one of your “reform” stances.”

    Are you insinuating now that not only am I a shill but that I have my own shill? Is it shills all the way down with you? I may as well assume that you, David, James, and John are all the same person. But I prefer not to. First, because it would be disappointing, second, because I prefer to take people at their word unless there’s a good reason not to.

    • M says:

      I direct your attention to 17 USC 205. See, one of the reasons why we register the ownership of real property

      Yup!!! It gets worse. And even with all the care and checks and double checks that happens with real property transactions, you still have to buy title insurance (in the US) because it’s never completely possible to know if you indeed legitimately purchased the property in question.

      The ownership of copyright is infinitely more vague not ONLY because because of the flimsy registration processes, because ownership of a “creative work” can borrow from the work of others in hard to track ways. A real property can at least be proven to be exclusive, because it corresponds to a unique position in space.

      Great post by the way! Yup, we have a system in place that requires no due process, no proof of ownership! No courts involved at all! And with this system they can force what is basically a preemptive injunction against another person. I’m not a lawyer, but can you think of any area of law where a petitioner gets a power remotely like this? But according to these people, it doesn’t go far enough! Wow!!

  32. James_J says:

    Faza at the Cynical Musician has a great post on digi-resale
    http://thecynicalmusician.com/2014/06/the-digital-first-sale-zombie/

    If everyone is done stating their life stories, we can get back to the topic at hand

    • M says:

      Fine. Back to the “first sale issue”. it is only slightly more work to buy a CD over eBay, make a copy of it, and sell it back.

      The reason people probably don’t do this very often (I’m sure SOME people do it): it’s just so easy to acquire the CD illegally to begin with, why bother with this more complicated method? So it’s not a problem now. But any day now, we are going to make music filesharing hard or impossible (roflamo). Right? Any day now, right? So now this CD loophole looks like this huge future problem!

      So what is the answer? Get rid first sale entirely right? Well then you put what if left of the indie record stores out of business. Tell me, is that what you guys really want? You want to kill a center of musical culture? You want to destroy everything that is sentimental and good about your industry to chase the impossible dream of enforcing copyright?

      And that’s all I got to say about this. There are so many levels of copyright fail here, you don’t even know what level to counter first, including if it is the right idea to stab yourself in the foot repeatedly.

  33. Anonymous says:

    M–
    “Back to the “first sale issue”. it is only slightly more work to buy a CD over eBay, make a copy of it, and sell it back.”

    Well, there are two schools of thought on this, and to the best of my knowledge, the issue has yet to be settled in the courts.

    First, it could be argued that this is lawful. Existing interpretations of fair use suggest that the making of a copy of a CD (e.g. by ripping it to a computer, and thence to an iPod) is fair use. As copyright prohibits the unauthorized making of copies, but not the possession of copies made without authorization, there is no infringement that occurs upon selling the legitimately made CD, nor thereafter.

    Second, it could be argued that this is unlawful. While it would be a novel argument, it could be claimed that fair use relates forward, and that even though at the moment that the use occurs (again, in this case, making a copy) the use is lawful, that the use retroactively becomes unlawful due to the later sale. Whether there was an intention to sell the original copy at the time of the fair use might or might not be relevant. Though if it’s not relevant, suppose that your house full of legitimately purchased CDs burns down; having lost possession, are you now obligated to erase your iPod? Of course, this really deviates from the statute, but fair use is fuzzy enough that it’s a colorable argument.

    Of course, it’d be easier to avoid the whole problem by making a copy in an AHRA-compliant manner (so long as we limit the discussion to CDs). Indeed, a long time ago, I once flirted with the idea of buying and selling used CDs, which when shipped to the buyer would be accompanied by an AHRA-compliant CDR and an accurate restatement of the law, along with an offer to repurchase the CD at a reasonable price based on demand, condition, etc. It avoided problems with section 106(1) and 106(3) / 109(b)(1)(A) pretty well. But then Napster came along, and there was clearly no point in bothering.

    James_J–
    That was an interesting article, though I’d disagree with a minor point here or there. Thanks for the link.

    • M says:

      True. IANAL, so generally I sweep the legal stuff under the rug. It’s just easier to take an extreme interpretation of copyright law in that “anything that can be an inconvenience to the content industry’s business must obviously be illegal!”. Sometimes, it seems to me like the law is stacked in their favor anyway, so just making this assumption makes arguments easier. Hopefully this will change, and with good work from folks like you, copyright law might start to balance enable the opportunities available to the general public.

      But to me this doesn’t matter. As I said, IANAL, so I don’t focus on the law. I’m a technologist, so I focus more on technological vulnerabilities with or without regard to the law. If it was legal, great. If it’s illegal, it’s next to impossible to detect and enforce. Either way, they are kinda fucked right? So the only real option they have in the cards is to work to ban first sale entirely. What legal lengths will they go to, to preserve copyright? Tell me, I see no limit myself.

      It’s also good you brought up libraries previously, because libraries are something they will have to basically destroy as well. Think about it. They are even a bigger vulnerability then the eBay model I mentioned. But going against libraries goes against the sentimentality of the public, something even the most ardent copyright promoter doesn’t want to be caught doing. It’s an uncomfortable notation: to be against libraries. So they sweep this under the rug. At least in public.

      But libraries will have to go. If they get they way, your local library will be history. It’s just too easy to copy music and movies from these institutions. And don’t think dead tree media is safe, book scanners are a common feature of hackerspaces and DIY labs these days. Book copying is just teetering remarkably close to the point of feasibility for the general public. So yes, libraries will have to go. In fact, any common public gathering of knowledge is too much of a risk to their business with the capabilities of modern technology at the public’s disposal.

      • John Warr says:

        Book copying requires time. Do I buy a book or do I spend a couple of hours or more copying it? Is the book going to cost over £500? Nope, then its not worth my time and inconvenience in copying it. If its over £500 then I probably don’t want a xerox copy anyway. Digital copies take much longer to produce and are even more appalling than xerox copies.

        Take Google book scans, the 19th century stuff is really quite bad when compared to the original. Of the modern works that they stole, even when they’re snippets are entire chapters, the online reading experience is pants. I gather though that for novels e-readers are reasonable. For the things that I want to read the book format is still the preferred access medium.

        None of this applies to digital representations of music or films, where the storage method is independent of the content. When I sell a physical book I relinquish my personal access to the content. That is not necessarily true of digital content where I may well have retained a personal copy.

      • M says:

        John,

        Technology is changing that preconception. Enterprising folks in the hackerspace community have developed book copying machines. There are book scanners you can put together very inexpensively that can scan and OCR even a large book in an automated fashion in under an hour (including having a robotic device flip the pages). Of course, once that book is a computer file, it can now be shared as any digital information can.

        Do I buy a book or do I spend a couple of hours or more copying it? Is the book going to cost over £500? Nope, then its not worth my time and inconvenience in copying it. If its over £500 then I probably don’t want a xerox copy anyway.

        In a way, this was true for all copyrighted works – the public never had the ability to copy a work in any efficient way, thus the act of copying was regulated industrial activity, businesses with giant printing machines for instance. Thus copyright was an industrial regulation. Now the tools of mass copying are in the hands of the people, copyright is being applied in a way it was never intended to be applied. And herein lies the problem with copyright.

  34. AudioNomics says:

    M, your argument is essentially nothing can be done to protect copyright “because it’s hard…”
    Aren’t you the one who says that AI is just around the corner, and that we’ll be uploading our consciousness into the cloud soon? I think it is just a matter of will… sometimes legislation is needed to give the proper incentive.

    anon wrote “Are you insinuating now that not only am I a shill but that I have my own shill?…”

    That was not the implication. It was a question of your stance and how you think of it. Maybe you aren’t a reformer after all… you say you believe there should be some form of protection, but you seem to knock down every suggestion of it. In your own words “I’m not interested im balance”…

    • M says:

      M, your argument is essentially nothing can be done to protect copyright “because it’s hard…”

      Well discuss how we would do it then. What are you waiting for?

    • M says:

      Forget politics too. Imagine you where dictator of Earth, where you can pass any edict on the whole world. What could you do to fix copyright?

  35. Anonymous says:

    AudioNomics–
    “Maybe you aren’t a reformer after all… you say you believe there should be some form of protection, but you seem to knock down every suggestion of it.”

    Not at all. Since you’re interested, here are the broad strokes for what I think would be a good idea; of course we need a number of economic studies to determine if it would actually be good. And of course, I welcome suggestions.

    1) Grant of copyrights
    Copyrights should automatically be granted for all unpublished works in order to enable authors to publish the works in a reasonable amount of time. Copyrights for unpublished works would be sharply limited in duration and available remedies, to discourage authors from sitting on published works longer than necessary. Copyrights should only be granted for published works (defining publication very broadly) where the author timely files for copyright, and complies with formalities required by statute, as well as those required by the Copyright Office.

    2) Formalities
    Such formalities would include the completion and filing of a registration document (mainly listing contact information for the claimant), payment of a token fee, and the deposit of ‘best copies’ of the work to be placed into the collection of the Library of Congress. Deposit would be strengthened, and among other things would eliminate overlap between copyright and trade secret, much like the disclosure requirement for patents. A duty would be imposed on the copyright holder(s) to keep the registration documents up to date, including the fact of and relevant details of assignments. (Possibly we might render unrecorded assignments ineffective, subject to estoppel as needed)

    3) Term length
    Shorten terms to 1 year from first publication worldwide. Renewal terms may be available, upon timely request, up to a limit specified in the statute. Limits might vary depending on the class of work, e.g. software probably should have fewer renwal terms than a movie or book. Renewals would require the filing of a simple form and token fee, mainly to offer an additional opportunity to ensure that the registration database is up to date.

    4) Statutory Exceptions
    Add useful statutory exceptions to copyright. E.g. an exception for incidental otherwise-infringing activity involving computers; an exception for otherwise infringing activity by natural persons acting non-commercially; an exception for the benefit of persons with handicaps (e.g. unlicensed audiobooks for the blind).

    5) Regulation of licensing and assignment
    Ban adhesive contracts for consumer transactions involving copyrighted works. Abolish termination of transfers and licenses going forward. Authors of existing works which had been, or would have been eligible for termination prior to the passage of the new act will be given a five year window immediately upon enactment to file notice of planned termination; works for which such a notice has been filed may be terminated at the appropriate time, following the appropriate procedure as per the prior statute.

    6) Circumvention
    Remove the existing anti-circumvention statute. Legalize circumvention. Revoke copyrights for any work which, after the enactment of the new Act, is published under the authority of the copyright holder with a technical measure that effectively controls access to a work, or protects a right of copyright. The Copyright Office and Library of Congress are mandated (with funding) to assist and coordinate efforts to break DRM on what would thenceforth be public domain works.

    7) Due Process
    Replace the takedown system with a means of forwarding cease and desist notices to users, as well as of forwarding process to be served to users, enabling litigation as the sole procedure for obtaining remedies. Change copyright from a strict liability standard to negligence.

    8) Remedies
    Limit the use of statutory penalties and certain injunctive relief such that those remedies are reasonably related to the seriousness of the complained of offense and appropriate and realizable remedies. Remove criminal infringement altogether.

    9) Foreign Relations
    Withdraw from all copyright treaties, but unilaterally offer national treatment for foreign authors, and maintain informal communications with foreign copyright offices or equivalents.

    10) Library of Congress
    The Library would be mandated and appropriately funded so as to place all public domain works in their collection online, as quickly, and as thoroughly as possible. Also, to coordinate with other libraries, and members of the public so that additional useful and robust online sources become available

    Anyway, that’s my 10 point proposal. As I said, I like copyright, and I think that we should have it, and that having an appropriate amount of it will be beneficial for the public. But I’m not interested in balance between the public and other groups. I’m interested in what’s best for the public, which may or may not include giving things to other groups.

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