When Elephants Dance

One Michael Fraase has written an excellent piece on the battle between the entertainment industry and everyone else titled "When Elephants Dance." Well worth reading, and bookmarking, and referring newbies to in order to get them up to speed in the digital content wars. His solution is right on, too, IMHO.

Comments

The Solution

[Phrogz]

In case it gets /.-ed, the 'solution' referred to is:

The solution is actually quite simple and requires only three steps:

1. Revert the term of copyright to 14 years, immediately and retroactive to all existing works.
2. Recognize moral rights in the works authors create, like every other civilized country on the planet. Make it immediate and retroactive to all existing works.
3. Prohibit any corporation from owning a copyright. Corporations create nothing; they're consensual hallucinations and exist at our pleasure. I don't know about you, but I'm not much pleased any more.

What I don't get, from reading the article, is: who is the second elephant? The technology companies like Philips or MS?

Re:The Solution

[meggito]

The two elephants are the entertainment industry and the technology industry. Both Philips and Microsoft are part of the second elephant.

14 years - ok for an artist - big suckage for corp

[Slashamatic]

Artists generally keep on creating. Fourteen years is a long time for many of them. You are not obliged to spend your gains on coke, etc and can set aside money like the rest of us try to do.

The corp is different, it doesn't create. It is just a very large self-perpetuating overhead. At the same time a corporation is a useful way that large projects get financed, allowing the risk and losses to be split. Companies started as ways of financing risky projects such as a ship of trade goods on a single return journey.

Keep the corporate rights holder, after all we want films like LOTR financed, don't we? However, I agree wholeheartedly with the idea of limiting the length of the rights to 14 years.

There's only one problem with this...

[Redhawk]

Ex post facto laws (making laws retroactive) are illegal as per the Constitution.

Although, given the reparations for slavery case, maybe I'm mistaken.

I support the solution that the original author cites, but making them retroactive is gonna be difficult.

Redhawk

Tell me. . .

[jafac]

What the fuck to the MPAA and RIAA member companies think they're going to do when all computers are encumbered with this new copy-protection technology?

Lucas wants to go 100% digital, from the lens to the screen.
Disney wants to eliminate celluloid from the animation process, most animated features are done largely on computer.
Tell me that all the digital toys the music industry has to play with could be dispensed with in the production of the latest BoyBand video?

So - you're going to take all your creative professionals, encumber the fuck out of their equipment, you'll be increasing your OWN production costs by an order of magnitude - and more since you wont be able to use cheap commodity hardware anymore, because economy of scale will not apply to things that mainstream consumers aren't going to buy zillions of. And who's going to support your encumbered technology? Certainly not the $10/hr MCSE who learned NT and Linux on his homebrew Athalon running pirated software playing pirated MP3s.

Eisner says he's tired of being finessed by the technology industry? I think he's too full of himself. Don't bite the hand that feeds you Mickey.

There's one part of the solution missing...

[PolyDwarf]

... A mandate for Fair Use.
IE something that reads along the lines of "Fair Use rights must be exercisable."
Right now, we have the rights, but the industry is making it so we can't exercise them.

Great article, bizarre conclusions . . .

[raresilk]

I was looking at the end for the "next page" link, where the author explained how his conclusion would solve the problem. I'm forced to conclude that either: (1) the editor cut off the last half of the article, (2) the author never finished writing it, or (3) the second martini kicked in about the time he wrote the bizarre conclusion. I quote below, with my remarks in italics:

The solution is actually quite simple and requires only three steps:

Revert the term of copyright to 14 years, immediately and retroactive to all existing works.

Oh, okay, we give the media companies 14 free years of screwing us every which way but loose. They can charge us rent, per play, per eardrum, for every time we listen to a song, sell us CDs of that song that vaporize after 3 plays and don't work at all unless your stereo has been inspected by the FBI, and break into our homes any time day or night to confiscate our computers and look for digital copies of the song. But only if the song is less than 14 years old. Whew, I feel better.

Recognize moral rights in the works authors create, like every other civilized country on the planet. Make it immediate and retroactive to all existing works.

Um, okay, so in addition to copyright holders treating us like criminals, we'll have the authors on our ass too, throwing us in jail if we quote a sentence or sample a riff, or anything else they feel insults the dignity of their work. This is supposed to be a solution? It sounds like a whole new can of worms to me. The reason that the USA does not recognize so-called "moral rights" for authors is quite simple -- we have something called Freedom of Speech in the First Amendment that allows us to quote or criticize authors, and engage in "fair use" of their works -- rights that were unquestioned until the DMCA power grab. Contrary to the suggestion that it would be liberating for consumers, the European "moral rights" regime is in rationale and practice rather similar to what the media companies are seeking to institute in the US.

Prohibit any corporation from owning a copyright. Corporations create nothing; they're consensual hallucinations and exist at our pleasure. I don't know about you, but I'm not much pleased any more.

The basis of the problem is found in a single court ruling: Santa Clara County v. Southern Pacific Railroad. In this 1886 dispute, the U.S. Supreme Court found that a private corporation was a "natural person" under the Constitution and enjoyed the same protections as a citizen under the Bill of Rights. Corporations from that point forward were granted all of the rights and freedoms of a private citizen, yet none of the responsibilities. We made a mistake; hey, shit happens. It's not too late to fix it.

Exactly where do you get your information about the law? Being a "natural person" is a two-way street -- contrary to this statement, corporations are subject to all the legal responsibilities that wetware persons have. In addition, they can have the fiction of their "personhood" revoked or legally disregarded if they misuse it - not so for individuals. True, large corporations are better equipped than the average "natural person" to push the envelope of legal rights and responsibilities, but that is by virtue of their superior economic resources, not their corporate status. Case in point: accused-criminal-come-lately accounting firm Arthur Andersen is huge, rich and powerful, but it is a partnership, not a corporation. Does that make their Enron document shredding less culpable?

In sum, despite the article's cogent analysis of the problem (including the media companies' true goal of eliminating the personal computer, which I brought up a few weeks ago), none of the proposed solutions will do a thing about it, and I submit they would only make matters worse.

A big problem with his solution:

[uigrad_2000]

Blockquoth the article:

3. Prohibit any corporation from owning a copyright. Corporations create nothing; they?re consensual hallucinations and exist at our pleasure. I don?t know about you, but I?m not much pleased any more.

Ok, who's the "author" of a movie? Is it the writer? The director? The editor? Or, maybe one of the major actors?

I guess that the director can only go into business for himself. No company can own the copyright, so he has to use his personal budget for funding the film. If it flops, he has to declare personal bankruptcy, instead of letting some corporation absorb the hit. How is this supposed to make things better?

I agree with the rest of the article. It's the first time I've seen this stated so well. I'm just curious about how he expects this last point to work.

ps: He should run the Demoroniser over his MS-Word documents before publishing them to the web!

Moral Rights? No, no, no.

[cpt kangarooski]

Moral-based copyrights are an extraordinarily bad idea. Fortunately no one had been so stupid as to come up with them when the Copyright Clause was established. (in fact, virtually no one had copyrights then either -- the first law having been enacted less than a century prior)

The U.S. has a far superior utilitarian model. Essentially, it permits copyrights to be established if, and only to the extent that, they serve a public good. Moral rights are backwards, in that they promote the interests of the author as an end unto themselves. However, the genius of the framers was that authors should best be treated rather like cattle. (it's worth noting here that for several years I supported myself entirely as an artist)

A dairy farmer is not interested in the well-being of his animals. He doesn't care if they're happy. He cares about milk yield and quality. If pampering the cows will produce sufficient quantities of good milk that it is worthwhile to do so, he will. If not, he won't. Thus the lack of solid gold cowbells.

Likewise, where the public interest in having a body of works that is freely usable in all possible ways, and that concerns as many subjects as the human mind can imagine is served, copyright makes sense. Creating copyright to provide for artists is stupid -- it harms the public interest, and the public doesn't get anything out of it. Creating copyright to encourage artists so as to increase the number of distinct but comprehensible works, and limiting it so as to permit free use, is far better.

If your intentions are to help artists, you'll do the former. (unless you really think about it, and remember that artists are members of the public too, and rely on existing works constantly) If your intentions are to help the public, you'll do the latter.

Copyright's fine -- in moderation, and for the right aims. This is not a concept that meshes with the silly nonsense about moral rights, however. The author of the linked article is using about the worst means possible to try to serve a public interest, and it'll backfire spectacularly.

Not a good solution

[gilroy]

Blockquoth the article:

Revert the term of copyright to 14 years, immediately and retroactive to all existing works.

This would be a terrible idea to enact. As soon as this law was enacted, we'd have massive suits by content holders that it was a "taking". Either the government would have to overturn the law or it would have to "justly compensate" each and every holder of any copyright of any value. Bleh.

On the other hand, saying that new copyrights last for only 14 years is not a taking, as a thing not yet created has no value. I think I could accept the tragic loss of public domain we've suffered, if I knew for sure it was a temporary aberration.

Re:Ah...

[Arandir]

Corporations are legal persons, not citizens. There is a difference. Citizens can vote. Corporations cannot. Citizens can get drivers licenses. Corporations cannot. Citizens can hold public office. Corporations cannot.

Lest you think I'm sticking up for corporations, let me assure you that I am not. Citizens can be tried for crimes. Corporations cannot. That last point is crucial. Microsoft is not being tried for any felony.

But the article you pointed me two has one very gross error amid its wealth of information. It tried to distinguish between the oppression of government and the oppression of corporations. They are one and the same. The East India Company, Massachusetts Bay Company, etc., were all chartered corporations. That meant that the power they wielded came directly from the British government. When independence was gained from the the British government, the corporations instantly ceased to have any power over the former colonists.

If you rebel against corporations but ignore the government, you are accomplishing nothing. The only power they have over you is derived from the government. The RIAA and MCAA is not legislating any law. Congress is doing that. It is only because the people of the United States have elected spineless cowards and money grubbing opportunists that we face this current problem.

If Disney and Sony suddenly disappeared tomorrow, our legal rights regarding digital content would still be in jeapardy. Stomp out Disney and another corporation will take its place. But if you take away the power of Congress to control your rights, then they won't have that power to sell to the highest bidder.

I fear any government, of any political persuasion, that is so large that it has to power to tell what I can or cannot do with my CDs.