Lessig On DMCA, Adobe, The US Constitution And Fair Use
Posted by
Hemos
on from the lesuirely-listening-to-larry dept.
LarsG writes: "Lawrence Lessig is taking a historical view of IP law and the DMCA in connection with the recent statements by Adobe's John Warnock.
This article appears in The Standard." Lawrence Lessig == smart.
My Experience With The DMCA/RIAA This Week
by
Seumas
·
· Score: 5
This runs ever-so-slightly off-topic perhaps, but since it is a very recent event (yesterday) and ties in with intellectual property rights and the DMCA (though not directly to software... other than MP3's)... Hmm... actually, I guess maybe it isn't off-topic after all?
I run a fairly successful (free) auction site. Yesterday, I had a voicemail left on my machine at work from the Director of Legal Affairs for Universal Records.
When I called to speak with him, and played a little phone-tag, he brought up the concern that a user had posted bootlegged Godsmack recordings, on CD-R's, on my site. Godsmack's management was not pleased with this and voiced their concern to Universal Records.
The representative I spoke with seemed understanding and realized that I am an individual operating a free, non-profit website with no intention to exploit intellectual property ownership. I explained that all I could do was review the auction in question and notify him of any decisions or actions that were made after I weighed his concern.
I reviewed the auction, which the seller had clearly explained in the item's description, was a compilation of bootlegs and songs that were not commercially available by the artist and that, as such, there was no financial impact on the artists themselves. You do not need to be a lawyer (and I am not one) to realize that this is most likely still very wrong. Bootlegging is, generally, a bad thing. And making money off it is probably almost always illegal.
Still, my concern was not for my own legal well-being, as the site clearly states that items being sold are the sole responsibility of the person posting them and all concerns should be addressed directly with that person. My concern was, in fact, how and what precident I would be setting for the future of my site and its users.
My final decision was to notify the seller of the situation, leave the auction up, put a notice on the auction item itself that the record company and Godsmack's management had concerns regarding this and as such, it was no longer available, should not be bid upon, and for all intents and purposes, the item should be considered not to exist. The auction page itself remained, until the seller willingly deleted it, for information purposes.
I notified Universal Records immediately of the decision I had made and received an email confirmation. They seem to have found my handling of the issue acceptable.
Now, my understanding is that even if these bootlegs were, somehow, legitimate and legal, I would have been required to remove/ban the auction until it could be proven that the item was acceptable to sell. Simply by someone claiming a wrong done, I would be required to behave and proceed with the assumption that, until proven otherwise, a wrong had been done. Is this correct? To what extent does this reach?
On a side note, during my conversation with the Universal Records lawyer, he said that (paraphrasing) "Our only concern is that our artists and their management feel damaged by material being exploited to make money which they should have control over." To which I replied, "I completely agree that it is wrong for someone to exploit an artist and their work for monitary gain without respect to the artist and ownership of their material."
Obviously, I was making a slight risk at agitating a lawyer with lots of financial backing by a very large corporation, but I thought it deserved to be said -- and how many chances do you get to tell a major record label what you think of their treatment of artists? I think it had to be done, or I'd be forever kicking myself for missing the opppertunity.
His response? He was silent, long enough for me to have to pose an inquisitive "...hello?" before the conversation continued. --- icq:2057699 seumas.com
In light of this article, I think it's a pertinent time to repeat the meme:
No copyright has expired in this country since the end of World War 2.
When the copyrights expire sometime around 2008, Congress will most likely vote to re-extend them again. Unlike what the Founders intended, entire generations can be born and die without seeing a copyright expire. A whole generation with no access to a "common pool of knowledge," but plenty of opportunity to be harassed by corporatist police state goons (e.g. 15 year-olds in Scandinavia).
-- Unhappy?
Kill your television.
let the free software switch begin.
by
bbk
·
· Score: 5
Although it's a huge infringment on our rights, legislation like this can only help the free software community.
If people are given a choice between software that truly belongs to them which they have full control over and being led around on a leash by corporate interests that have goals other than their own, they'll pick freedom every time. Free software will take off because it will become the only way people can get what they really want and need. Projects like KDE and Gnome are coming along to the point where switching from other OS's is an extremely viable solution.
That said, it's sad to see developments like this. When it comes down to it, it's greed and powermongering at it's worst.
I remember that one of the biggest issues of my American history/government classes is that during the industrial revolution, "laisse faire" (sp?) has always been taken as the rule of thumb; as long as the companies were not endangering anyone, the gov't kept their hands off of it.
That principle is certainly not dead today; gov't groups like the FTC and DOJ only step in when a company pushes the bounds. While there are always people screaming that the gov't has too much control on businesses, I would argue that businesses are free to do nearly everything they want, as long as they pay their taxes and don't hurt citizens or the environment.
However, I would also think that laisse faire works both ways; while the gov't cannot regulate an industry unless it's required, the gov't should not also favor industry unless required (such as during the S&L crisis). However, laws like the DMCA actually benefit companies and do not benefit the average citizen in any real regard. If the founding fathers had a bill like the DMCA to review, they would have probably trashed it, not only for the copyright extentions, but the fact there is no obvious benefit that non-corporations can get from it.
But unfortunately, our democratatic system as it stands is flawed, allowed corporations to buy votes to get such bills enacted. Grassroot campaigns are great, but they rarely have money or media attention to get any votes whatsoever, and many have come to rely on a higher court (which can't be bought) to overturn a law.
What suprises me is that given how fast the two CDA bills were fought and successfully overturned, nothing save for deCSS and Napster has been really pushed forward for anti-DCMA. (IMO, even without the DCMA in effect, both cases would be before courts right now). And to be truthful, I rather not have the DCMA challenged with these cases, because if one of them loses, it sets a dangerous precident that some later case that challenges the DCMA with more legit concerns would have to overcome. A win for the copyright holders might also toughen up some other copyright holders and cause a strong death grip for many sites on the web.
And to come back to the case in point, in the case of copyrights, the time a copyright should be granted should be related to the number of people that would be interested in said product, and the time of delievery to said product. In 1800, say with a million Americans and a lack of rapid communications between the various states, 14 years is reasonable. In 1950, 200 million Americans, and with an interstate system, fast printing presses, and the proliforation of tv and radio, 14 years is overkill, because the large amount of information there and the speed to get it to everyone. Today, with 300 million and the internet, the amount of data has probably exponentally grown the number of citizens, and thus, the time for copyrights should be much much smaller.
--
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
It is obvious to any thinking being that what we have witnessed in the last 100 years is an unprecedented (in all of human history!) redefinition of what it is to "own" a "creative work."
The endless extensions to the rights and protections granted to the holders of intellectual property are, especially in their most recent incarnations, nothing short of astounding. No reasonable person can defend the actions of the few, large players in the "Intellectual Property Industry" (another thing the framers never could have conceived of) in transparently prolonging the life of the Mickey Mouse franchise. The DMCA is the current pinnacle of the efforts to coopt the creative by corporate interests; a law which is, in form and function, an anathema to artists (of any dicipline) and their audience alike.
Society is not peppered with man-as-island "artists" and "authors" and "coders," who spin out delicate and frail inventions from ivory towers, desperate for protection from marauding information pirates. We are intimately dependent on one another, on our ideas, our dreams, our goals; each of us fuels the others work as citizens, as thinkers, as creators of new ideas, new art, new programs (an art in itself, certainly). The unprecedented progress we have witnessed in the last century is unquestonably operating in spite of the growing trend toward brutal protection of intellectual property, in a vacuum of both understanding and enforcement. This intellectual growth could not have happened under the culture that is being created today, and a balanced intellectual property doctrine wisely recognizes the necessity of all ideas to mature into the public domain, and ignores the natural ecology of ideas at the extreme peril of those who would live under it.
As a programmer, it is easy for me to follow the news, watch the lawsuits, and reach direct, immediate, and objective conclusions about the impact of intellectual property (especially software patents) on our discipline and the world that it serves. The peril to innovation of the current intellectual property law, and our interpretations of it regarding software, is so obvious that it has spurred a phenomenal and almost unexplainable social phenomenon: free software. But it goes way beyond software, and it's easy to infer how much real damage "overly strong" intellectual property law is doing to our economy among "solution-oriented" disciplines, and this doesn't stop short of harm to our more personal lives in "softer" industries like music, literature, etc.
We have now a very small group of capitalists who have grown very fat by exploiting, and then expanding, the weaknesses of our intellectual property laws. They will naturally stop at nothing to preserve their effortless wealth; they have no interest in creating a healthy society: their only interest is their own success. Of course, in a democracy, their absurdly small minority should be drowned out by the balance of the citizenry. Everyone's interests should be represented, to insure that no one's self-interest foils a fair government in presiding over a healthy society.
Of course, you can do ABC news polls out the wazoo, and you will find numbers that lead politicians pandering greedily to the IP interests. Most American's can't be bothered to think about these issues, even as the quality of their lives are silently eroded by the forces at work. But, for this, I can't do more than to simply quote a very smart man, who once observed:
"Private capital tends to become concentrated in few hands... The result of these developments is an oligarchy of private capital the enormous power of which cannot be effectively checked even by a democratically organized political society. This is true since the members of legislative bodies are selected by political parties, largely financed or otherwise influenced by private capitalists who, for all practical purposes, separate the electorate from the legislature.
The consequence is that the representatives of the people do not in fact sufficiently protect the interests of the underprivileged sections of the population. Moreover, under existing conditions, private capitalists inevitably control, directly or indirectly, the main sources of information (press, radio, education). It is thus extremely difficult, and indeed in most cases quite impossible, for the individual citizen to come to objective conclusions and to make intelligent use of his political rights."
I don't recall if it has been mentioned on slashdot before, but last week, Lessig wrote an amicus curiae brief in support of the mirror site maintainers in the Cyber Patrol/CPHack case.
Re:Interesting, and informative.
by
FigWig
·
· Score: 5
My only gripe is that the statement about pdf. This is a closed,and with-held format.
I agree with you completely! If only that damned Adobe would open the file specification. Obviously they are trying to get a stranglehold on the market and blight out the common man.
We need open programs that can read and create pdf files. Without such programs, the PDF format is useless.
So let's fight the power and boycott Adobe until they free the format!
Slashdot Mirror
I run a fairly successful (free) auction site. Yesterday, I had a voicemail left on my machine at work from the Director of Legal Affairs for Universal Records.
When I called to speak with him, and played a little phone-tag, he brought up the concern that a user had posted bootlegged Godsmack recordings, on CD-R's, on my site. Godsmack's management was not pleased with this and voiced their concern to Universal Records.
The representative I spoke with seemed understanding and realized that I am an individual operating a free, non-profit website with no intention to exploit intellectual property ownership. I explained that all I could do was review the auction in question and notify him of any decisions or actions that were made after I weighed his concern.
I reviewed the auction, which the seller had clearly explained in the item's description, was a compilation of bootlegs and songs that were not commercially available by the artist and that, as such, there was no financial impact on the artists themselves. You do not need to be a lawyer (and I am not one) to realize that this is most likely still very wrong. Bootlegging is, generally, a bad thing. And making money off it is probably almost always illegal.
Still, my concern was not for my own legal well-being, as the site clearly states that items being sold are the sole responsibility of the person posting them and all concerns should be addressed directly with that person. My concern was, in fact, how and what precident I would be setting for the future of my site and its users.
My final decision was to notify the seller of the situation, leave the auction up, put a notice on the auction item itself that the record company and Godsmack's management had concerns regarding this and as such, it was no longer available, should not be bid upon, and for all intents and purposes, the item should be considered not to exist. The auction page itself remained, until the seller willingly deleted it, for information purposes.
I notified Universal Records immediately of the decision I had made and received an email confirmation. They seem to have found my handling of the issue acceptable.
Now, my understanding is that even if these bootlegs were, somehow, legitimate and legal, I would have been required to remove/ban the auction until it could be proven that the item was acceptable to sell. Simply by someone claiming a wrong done, I would be required to behave and proceed with the assumption that, until proven otherwise, a wrong had been done. Is this correct? To what extent does this reach?
On a side note, during my conversation with the Universal Records lawyer, he said that (paraphrasing) "Our only concern is that our artists and their management feel damaged by material being exploited to make money which they should have control over." To which I replied, "I completely agree that it is wrong for someone to exploit an artist and their work for monitary gain without respect to the artist and ownership of their material."
Obviously, I was making a slight risk at agitating a lawyer with lots of financial backing by a very large corporation, but I thought it deserved to be said -- and how many chances do you get to tell a major record label what you think of their treatment of artists? I think it had to be done, or I'd be forever kicking myself for missing the opppertunity.
His response? He was silent, long enough for me to have to pose an inquisitive "...hello?" before the conversation continued.
---
icq:2057699
seumas.com
In light of this article, I think it's a pertinent time to repeat the meme:
No copyright has expired in this country since the end of World War 2.
When the copyrights expire sometime around 2008, Congress will most likely vote to re-extend them again. Unlike what the Founders intended, entire generations can be born and die without seeing a copyright expire. A whole generation with no access to a "common pool of knowledge," but plenty of opportunity to be harassed by corporatist police state goons (e.g. 15 year-olds in Scandinavia).
Unhappy? Kill your television.
Although it's a huge infringment on our rights, legislation like this can only help the free software community.
If people are given a choice between software that truly belongs to them which they have full control over and being led around on a leash by corporate interests that have goals other than their own, they'll pick freedom every time. Free software will take off because it will become the only way people can get what they really want and need. Projects like KDE and Gnome are coming along to the point where switching from other OS's is an extremely viable solution.
That said, it's sad to see developments like this. When it comes down to it, it's greed and powermongering at it's worst.
BBK
That principle is certainly not dead today; gov't groups like the FTC and DOJ only step in when a company pushes the bounds. While there are always people screaming that the gov't has too much control on businesses, I would argue that businesses are free to do nearly everything they want, as long as they pay their taxes and don't hurt citizens or the environment.
However, I would also think that laisse faire works both ways; while the gov't cannot regulate an industry unless it's required, the gov't should not also favor industry unless required (such as during the S&L crisis). However, laws like the DMCA actually benefit companies and do not benefit the average citizen in any real regard. If the founding fathers had a bill like the DMCA to review, they would have probably trashed it, not only for the copyright extentions, but the fact there is no obvious benefit that non-corporations can get from it.
But unfortunately, our democratatic system as it stands is flawed, allowed corporations to buy votes to get such bills enacted. Grassroot campaigns are great, but they rarely have money or media attention to get any votes whatsoever, and many have come to rely on a higher court (which can't be bought) to overturn a law.
What suprises me is that given how fast the two CDA bills were fought and successfully overturned, nothing save for deCSS and Napster has been really pushed forward for anti-DCMA. (IMO, even without the DCMA in effect, both cases would be before courts right now). And to be truthful, I rather not have the DCMA challenged with these cases, because if one of them loses, it sets a dangerous precident that some later case that challenges the DCMA with more legit concerns would have to overcome. A win for the copyright holders might also toughen up some other copyright holders and cause a strong death grip for many sites on the web.
And to come back to the case in point, in the case of copyrights, the time a copyright should be granted should be related to the number of people that would be interested in said product, and the time of delievery to said product. In 1800, say with a million Americans and a lack of rapid communications between the various states, 14 years is reasonable. In 1950, 200 million Americans, and with an interstate system, fast printing presses, and the proliforation of tv and radio, 14 years is overkill, because the large amount of information there and the speed to get it to everyone. Today, with 300 million and the internet, the amount of data has probably exponentally grown the number of citizens, and thus, the time for copyrights should be much much smaller.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
The endless extensions to the rights and protections granted to the holders of intellectual property are, especially in their most recent incarnations, nothing short of astounding. No reasonable person can defend the actions of the few, large players in the "Intellectual Property Industry" (another thing the framers never could have conceived of) in transparently prolonging the life of the Mickey Mouse franchise. The DMCA is the current pinnacle of the efforts to coopt the creative by corporate interests; a law which is, in form and function, an anathema to artists (of any dicipline) and their audience alike.
Society is not peppered with man-as-island "artists" and "authors" and "coders," who spin out delicate and frail inventions from ivory towers, desperate for protection from marauding information pirates. We are intimately dependent on one another, on our ideas, our dreams, our goals; each of us fuels the others work as citizens, as thinkers, as creators of new ideas, new art, new programs (an art in itself, certainly). The unprecedented progress we have witnessed in the last century is unquestonably operating in spite of the growing trend toward brutal protection of intellectual property, in a vacuum of both understanding and enforcement. This intellectual growth could not have happened under the culture that is being created today, and a balanced intellectual property doctrine wisely recognizes the necessity of all ideas to mature into the public domain, and ignores the natural ecology of ideas at the extreme peril of those who would live under it.
As a programmer, it is easy for me to follow the news, watch the lawsuits, and reach direct, immediate, and objective conclusions about the impact of intellectual property (especially software patents) on our discipline and the world that it serves. The peril to innovation of the current intellectual property law, and our interpretations of it regarding software, is so obvious that it has spurred a phenomenal and almost unexplainable social phenomenon: free software. But it goes way beyond software, and it's easy to infer how much real damage "overly strong" intellectual property law is doing to our economy among "solution-oriented" disciplines, and this doesn't stop short of harm to our more personal lives in "softer" industries like music, literature, etc.
We have now a very small group of capitalists who have grown very fat by exploiting, and then expanding, the weaknesses of our intellectual property laws. They will naturally stop at nothing to preserve their effortless wealth; they have no interest in creating a healthy society: their only interest is their own success. Of course, in a democracy, their absurdly small minority should be drowned out by the balance of the citizenry. Everyone's interests should be represented, to insure that no one's self-interest foils a fair government in presiding over a healthy society.
Of course, you can do ABC news polls out the wazoo, and you will find numbers that lead politicians pandering greedily to the IP interests. Most American's can't be bothered to think about these issues, even as the quality of their lives are silently eroded by the forces at work. But, for this, I can't do more than to simply quote a very smart man, who once observed:
"Private capital tends to become concentrated in few hands... The result of these developments is an oligarchy of private capital the enormous power of which cannot be effectively checked even by a democratically organized political society. This is true since the members of legislative bodies are selected by political parties, largely financed or otherwise influenced by private capitalists who, for all practical purposes, separate the electorate from the legislature.
The consequence is that the representatives of the people do not in fact sufficiently protect the interests of the underprivileged sections of the population. Moreover, under existing conditions, private capitalists inevitably control, directly or indirectly, the main sources of information (press, radio, education). It is thus extremely difficult, and indeed in most cases quite impossible, for the individual citizen to come to objective conclusions and to make intelligent use of his political rights."
-Albert Einstein
We're on the road to Tycho.
The brief (in pdf) is here.
My only gripe is that the statement about pdf. This is a closed,and with-held format.
I agree with you completely! If only that damned Adobe would open the file specification. Obviously they are trying to get a stranglehold on the market and blight out the common man.
We need open programs that can read and create pdf files. Without such programs, the PDF format is useless.
So let's fight the power and boycott Adobe until they free the format!
Scuttlemonkey is a troll