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More Unintended Consequences of the DMCA
BrianWCarver writes "In the seven years since Congress enacted the Digital Millennium Copyright Act (DMCA), examples of the law's impact on legitimate consumers, scientists, and competitors continue to mount. A new report released today from the Electronic Frontier Foundation (EFF), 'Unintended Consequences: Seven Years Under the DMCA,' (pdf) collects reports of the misuses of the DMCA -- chilling free expression and scientific research, jeopardizing fair use, impeding competition and innovation, and interfering with other laws on the books. The report updates a previous version issued by EFF in 2003, which Slashdot also covered."
The problems is (a) if you're a media or software company, you view these as "good" consequence (b) if you're a member of congress, you're routinely told America's financial health is dependant on the strong protection of IP, so you don't see any problem with this (c) hardly anybody has any direct consequence because of DMCA, so they don't see the problem.
So in the face of all that intertia, no one really cares about the extreme cases. I'm guessing the cutover to HDTV in the U.S. (a.k.a. "The Disaster") will generate a lot of problems and make cause a backlash, but right now, it's hard to see anyone in charge or in authority speaking out against the law, and there is almost zero groudswell against it.
You were mistaken. Which is odd, since memory shouldn't be a problem for you
W-O-W. Telling scientists, programmers, etc... that they can't use current advancements that are avaialble hinders innovation! Oh my.
"Our Constitution was made only for a moral and religious people. It is wholly inadequate to govern any other" -John Ada
BoingBoing linked to the sorrowful tale of a guy who's a big pro-lockdown guy on the web who got screwed when his portless DVR ate all the carefully recorded Spanish lessons he had saved for his children. He would've been within his rights to do an external backup, but those rights got trampeled by the fear of casual piracy. Whoops, too bad! I mean.... !no es bueno senor!
SO YOU'RE GOING TO DIE: The Comic for Dealing with Death
Fair Use Under Siege "Fair use" is a crucial element in American copyright law-the principle that the public is entitled, without having to ask permission, to use copyrighted works in ways that do not unduly interfere with the copyright owner's market for a work. Fair uses include personal, noncommercial uses, such as using a VCR to record a television program for later viewing. Fair use also includes activities undertaken for purposes such as criticism, comment, news reporting, teaching, scholarship or research. Unfortunately, the DMCA throws out the baby of fair use with the bathwater of digital piracy. By employing technical protection measures to control access to and use of copyrighted works, and using the DMCA against anyone who tampers with those measures, copyright owners can unilaterally eliminate fair use, re-writing the copyright bargain developed by Congress and the courts over more than a century.
What bothers me is that things like this cause people to think that there is no such thing as fair use. I work as a teacher and I make a bunch of presentations for my classes. It's school policy that we can't use copyrighted images for any purposes -- even this clear cut case of non-comercial, educational use. This policy is just one of the many in place to eliminate even the possibility that someone may sue for any reason, no matter how in the right we may be. I'd use creative commons images anyway, but this is very frustrating.
-CGP
As much as we write and complain about the idiots in government creating legislation that is bad for technology and innovation we have yet to solve the problem. I think given the power of /. we could unite a movement to elect someone with an IQ higher than 3 and not in the back pockets of those abusing the DMCA. Viva la Revolution! Think about it. We could form a new political party where rank comes from ability, not tenure. We could take over the world!
...well, after I blog about it...
then there is my L.U.G. meeting...
and the sites I need to code...
No animals were harmed in the making of this sig.
Well, there was that one puppy, but he is all better now.
There are a lot a people in positions of power with no real understanding of how the real world actually works. Some actually ask the hard questions, few actually do anything about it. Nuff said.
-=- I tried going insane, and it was fun for a while, but I got bored and decided to go sane. -=-
Use a firewall, go to jail
From the article: HP's Region-Coded, Expiring Printer Cartridges: Hewlett-Packard, one of the world's leading printer manufacturers, has embedded software in its printers and accompanying toner cartridges to enforce "region coding" restrictions that prevent cartridges purchased in one region from operating with printers purchased in another. This "feature" presumably is intended to support regional market segmentation and price discrimination.
The software embedded in HP printer cartridges also apparently causes them to "expire" after a set amount of time, forcing consumers to purchase new ink, even if the cartridge has not run dry.
Now that's damn evil. After I moved to England, I discovered the that my DVDs no longer worked. But I never knew that this was now in printers as well. How long before some jackass decides to regin-encode my whole laptop?
-Grey
Silver Clipboard: Time Management Tips
I thought I'd pop in a quick comment to beat the rush.. I've barely scanned through the document, but I've already noticed obvious and glaring errors.
For example, they cite the case of Adobe's claim that Nikon prevented them from decrypting their RAW format files. The facts as the EFF documents explains them, are just plain wrong. There was a brief outcry from some overwrought programmers at Adobe over this issue, but it turned out Nikon was always willing to license their proprietary code to developers like Adobe, even before this little dust-up. Nothing to see here, move along, it was just another testy outburst from a programmer who had too much coffee and didn't want to wait for his managers to finish negotiations with Nikon.
I'll go through the document in more detail, and I'm sure I'll find more deliberate misstatements of facts. The EFF always trumps up charges to inflate its case. Perhaps someday they will learn that this tactic undermines their efforts.
I like it how the DMCA and other "bad" laws can have unintended consequences, but "good" laws ... nevermind thinking about them for the "good" laws.
Like nearly everyone else involved the EFF has an agenda and a spin. Once example of EFF FUD'ing may be the reference to scientific research. A while ago I read a *government* summary of the DMCA and I believe there is an *exemption for research*. Scientific research and various other activities are inherently exempt.
"Already, the movie industry's use of encryption on DVDs has curtailed consumers' ability to make legitimate, personal-use copies of movies they have purchased"
I always thought that there was a legal right to be able to make a copy of a dvd for your own use, just incase you lost the original or something. It's really annoying to lose one and then be left stuck. If we do have this right (I'm no lawyer so I'm not sure where we are legally) then why are we not being allowed to use them, is this not witholding our rights and breaking the law?
*''I can't believe it's not a hyperlink.''
Leave! There's plenty of English-speaking countries with non-nazi governments.
(and before you mod this down because of that remark... think about it.)
Jeopardizing fair use and impeding competition and innovation are not unintended consequences. They're major reasons some DMCA supporters wanted it passed.
Every law passed by the State with the honest and sincere intention of being for the public good turns out *in practise* to be to the (sometimes enourmous) public harm, while hugely benefitting a very small number of people.
An interesting consequence of increased entertainment media costs has been more piracy an poorer sales, an even more interesting one is that in the top 100 hundred (music and video) lists, the big studios and their formula products have failed to knock off the independents, who due to increased airplay have never had it so good. Even better real artists have real fans who prefer genuine products rather than pirated copies. Make you wonder who been stealing from who all these years.
is not correct. The whole USA Patriot Act is designed, and was lifted 99 percent from a prior Security document created, with the intention of restricting American's rights of privacy and actual personal security.
Just look at the sections on wiretapping and library records - those were not created after 9/11, they were created before 9/11.
So, most of the so-called unintended consequences are incorrectly said to be unintentional, but in actual creation they were intentional.
Just like we've been spying on your telephone calls since my days in the Army, from Yakima Firing Range in Eastern Washington State. You think you had security before, but I remember walking into rooms where people thought it was fun to put a call on speaker as they listened in to some poor sap's wife talking intimitately with him.
-- Tigger warning: This post may contain tiggers! --
The answer is simple: Stop teaching there. If the school won't allow you to teach at your best then stop teaching there.
It is definitly true that the DMCA has a whole bunch of really terrible unintended consequences. What is sad is that people don't understand that the same applies to any law. Every single law that the government makes, has similiar unintended consequences - because human behavior and society is so complex we can never truly predict how these things are going to work out.
Geeks tend to understand the terrible effects the DMCA, because that is what Geeks are knowledgable in. If you are an expert in this kind of thing (or at least knowledgable, as most Slashdot people are), you are going to be able to look at it with a more critical eye than the average American. This is our shit, so we know exactly what the deal is.
But remember, the same thing happens when the government makes a law about terrorism, or illegal drugs, or health care, or the enviornment, or anything else. You might not hear about the same effects the way you hear about the DMCA, but it happens. You support the anti-Terrorism bill, and you don't understand the effect it has on imigrants and their families, or the potential racial-profiling and discrimination it causes. You don't hear about the small family buisnesses that get shut down because they simply don't have the money to comply with some new enviornmental regulation you support. You don't hear about the guy who picks up a hitchhiker, and when they get pulled over by the police, the driver goes to jail for 20 years because the hitchhiker happens to be carrying drugs... you think that tough drug laws are only harming criminals. Or you don't hear about the people who dieing of cancer who can't get a potentially life saving treatment, because the government determines it is "too risky".
Laws are about a subtle as a sledgehammer. With maybe the exception of small local government, society is just too diverse and too complex to make a law that doesn't have serious side effects. A law is a like a prescription drug, we know it is going to have some negative side effect, but we think the problem is worse than the potential side effect. The DMCA isn't a bad law - it is a typical law. It has the same type of negative effects than any law has.
The next time you support some new law, remember the DMCA, and remember the same thing is going to happen with that law. That doesn't mean you won't support the law anyway, but it means that like a drug, you need to know what negative effects it might have in order to evaluate the risks.
But if you think you can make a law that doesn't have significant negative effects on society, you are totally fooling yourself.
Have they attacked your right to bear arms?
There are far too many noble causes for anyone to champion them all. That doesn't make them hypocritical so much as focused.
It's not like you are EVIL if you give your money to a different group that is more focused on your favorite rights, now is it?
seems this obomination of an act is doing exactly what it was meant to do.
stifle speech -check
ensure massive litigation -check
confuse everyone -check
bad for consumers -check
so what's the problem?
I don't think so.
What?
Traditional copyright laws already on the books before the DMCA already take care of plagarism issues. In fact, the DMCA really does not help out here.
Thanks for trying (but failing) to find holes in our hate of the DMCA.
Seems to me if I recall correctly that even before the DMCA came out you weren't allowed to just download whatever you wanted just because it was on the web. The DMCA didn't make it suddenly illegal. It didn't even make it particularly more difficult. Perhaps you should consider a different argument? For the record I'm pretty sure that Copywrite is a seperate issue from the DMCA.
If you see spelling or grammatical errors don't blame me. I tried to preview but IE here at work borked the CSS
I wonder when members of Congress are going to get off their asses and fix this.. We've heard reports for years about the unwanted legitimate issues this law has caused, and yet nothing is happening.
How about someone creating an easter egg hunt where we all try to find our what the members of congress are illegally downloading, etc, as per the DMCA, and turn them in? This might light a fire under their butts..
All you have to do to copyright your blog postings is put a claim of copyright and terms of distribution notice at the bottom of your page, then if someone rips your work off, without crediting you, sue their ass. You can even say under what circumstances the work is free to use, and when people would have to pay you.
All this is in existing copyright law. No need for the DMCA whatsoever.
Shiny. Let's be bad guys.
Here it's the British-inherited tradition of "fair dealing". Which I suppose usually amounts to the same thing, but it's important to know the true name if you're going to look it up (like looking up fair dealing in Canada on Wikipedia, for example).
Since all this talk is about "fair use" and the American situation, it's often hard to quite know where Canada stands. To be honest, the answer is probably "dragging along behind the States", but as far as Canada has any self-determination over its own laws there are at least a few current sources from which one can gleam the current state, debate and trends. First is noting how recently during the last election any non-serious news shows were forbidden from showing clips from the leaders' debate. A good sample case showing the state of these concepts such as "public domain", eh?
There are two more rather interesting sources that spring to mind. One is this website which is a good source for current news as to copyright laws in Canada with an obvious emphasis on the digital side (which is, after all, where most of these battles are being fought right now). The other source is the book "In The Public Interest", which is a collection of different essays and is available at that link for free download under a creative commons license (nice to see them putting their money where their mouth is!).
The sad part is, we may not have our own DMCA yet . . . but at this rate (note that Bill C-60 only really failed to pass because the government fell before it went through the House) it shouldn't be that long until we do.
I remember sigs. Oh, a simpler time!
The region coding is an issue that deserves to be held up to scrutiny but the part about expiry is rather misleading. Very few of HP's ink cartridges have an expiry mechanism but the article seems to suggest that they all do.
Just because someone sued it does not automatically mean that the claim has any merit. I am very disappointed that EFF has used such a weak example here, and to make it worse, they go on to say that DMCA has not been used in this case.
There are plenty of good examples to show the bad effects of DMCA, adding these weak and poorly researched cases just gives ammunition to the other side.
Before the DMCA (and in fact even after the DMCA, it is just that the DMCA broadened the terms) to have the full protection of copyright law, you either had to file for a copyright with the copyright office, or the work had to be published with the markings you mention (which pre-DMCA did not specifically include the Internet, or any electronic form, but rather published in the sense of having to go through a printing press, and be distributed), in order to be considered a copyrighted piece of work. If you just had some piece of artwork, or a photo, or a script, and were just showing it around your local coffee shop, or had it up on your personal webpage, then you had no guaranteed legal recourse under copyright law, since you could not prove publication, no matter how many little ©s you had on the piece. If you played a little ditty you came up with while sitting at the park, anyone who heard it could steal it, unless you had published sheet music for it. That changed with the DMCA. Copyright was changed to take effect at the moment of creation, not at the moment of publication, and the web and digital files were now considered to be a form of publication as well.
All of these are huge changes that pretty much made the viability of commercial web pages a reality, and made the situation much better for the proverbial starving artist. Of course, most people talking about the evils of the DMCA aren't professional artists, and so haven't had to deal with the pre-DMCA world where a client could end up owning your work, just because they were the one who paid for the ad where it was first published. In fact, most people railing against the DMCA don't know the first thing about copyright law, because they have never had to deal with it in the slightest. They just know that it is that evil thing that makes your printer cartridges more expensive, and that keeps you from being able to copy your friends software and movies for free.
The reason I find the bloggers more humorous than everyone else, is because they just take it as a given that everything scribble on their page is their's to do whatever they want with, and don't realize that the only reason they don't have to constantly worry about copyright law, is because the DMCA they hate so much made it so much easier to deal with copyright.
Judges have long memories. Instead of thinking "these guys have a rational case", the Judge thinks, "Oh, this bunch of dissembling freaks again. Next case please".
You might consider going into the board and saying "point me to an image I can use". It'd be fun to see them try.
My turnips listen for the soft cry of your love
they're laughing at YOU!
I'm not the previous poster (nor am I even a teacher), but this simply isn't a workable answer to every problem.
... except for one thing.
... in the end, what have I gained? Don't all jobs that involve interaction with other people (i.e., all of them) have some element of stupid, from time to time?
OK, this school has a dumb fair-use policy. Pack up, move, go to another school. Chances are, they're pretty good, too
If I only allowed myself to work at a job that was perfect, I'd probably bounce around 10 jobs in my field, and then decide that maybe my field simply has no opportunities for perfection, and then bounce around 10 other fields
Teachers: if you work at a school whose policies are perfect, please respond here. I know some teachers, and I'm sure they'd love to know where they are -- if they exist.
D-M-C-A It's fun to get stuck with some D-M-C-A....
At least by the corporate legal staffers who presumably actually wrote the bill.
The real problem here is that organizations like the EFF that are supposed to represent our interests are tax-exempt non-profits.
If we want the political power to do something about this, we need our own PAC, our equivalent of the NRA or AARP.
What's going on with telecomm legislation (you heard that the net neutrality bill got killed in committee?) is another example of why we've got to organize to buy our own politicians, not put up with what happens when major corporate interests who don't want real innovation and who don't want the public to find out what's really wrong with their products are the only ones with cash in hand.
We have the best politicians that money can buy, if we want to be represented, we have to ante up.
Tech Public Policy stuff
Well, it is the Digital Millennium Copyright Act, and it was an omnibus bill that made sweeping reform to copyright across the board, so I don't see how it really could be separate from copyright law. Also, you are correct that you could not just download any copyrighted material from the Internet before the DMCA, but what pieces did and didn't get the full protection of copyright in court was changed dramatically by the DMCA.
People always focus on the anti-circumvention provisions of the DMCA, while totally ignoring that it is also the ratification, in law of this countries agreement to the provisions of the WIPO, which required several changes in US copyright law at that point.
lets play "connect the dots"
1 Windows Vista sp3 comes out and encrypts the harddrive to
1 The magic MS key
2 some sort of OEM key
3 the login of the current user (this is limited to the user data directory)
2 a terrorist group then starts using these laptops to plot #evil_NBC_deed and encrypts all communications
3 Some member of the Homeland Defense gets one of these laptops and then yanks the hard drive out and starts wishing that the now dead (cyanide pill) terrorist had written his password down somewhere (he didn't)
4 the hardrive is useless since you would have to bypass (violating the DCMA) three levels of encryption (oh and good luck getting a forensically valid copy of the drive)
5 Prophit!! (for them)
Any person using FTFY or editing my postings agrees to a US$50.00 charge
In the print-and-analog era, piracy on a massive scale was both difficult (as regards production and distribution) and resulted in a product that was of a sufficiently degraded quality to enable the original licensed product to retain some advantage over their black market copies. Sure, you could use your dad's office xerox machine to copy that physics textbook instead of laying out a couple of hundred bucks for the book, but a massive pile of photocopies was unwieldy and far less convenient than a nicely bound book. Sure, you could make cassette copies of LPs (in my youth, I had a whole circle of friends who would share their music thusly), but the audio quality took a nosedive. Sure, you could make VHS dubs of movies, but every successive copy generation reduced the video quality significantly. And if you were looking to profit from such activities, your options for publicizing your wares and distributing them made the concept difficult to execute on any large scale. Now we live in an age in which the content of that 1100-page textbook can be digitized and fit on a CD or jump drive. And perfect digital copies of music and movies can be quickly and easily shared with thousands of people on the Net.
The concept of fair use was something the studios, publishers, and other corporate meagaliths could live with so long as abusing the concept (for profit or otherwise) on any significant scale was problematic. Now, getting that software package or music album or Hollywood blockbuster gratis can be as quick and easy as a few clicks of the mouse.
A parallel is the ongoing controversy over providing and accessing public records online. We're all familiar with the concept of "practical obscurity" -- previously if you wanted to access these records, you had to physically travel to whatever city and edifice in which the documents were archived, then deal with buereaucracy, surly and underpaid public servants, and lots of musty and dusty file folders to find that divorce decree or property deed or tax record. It was legal to do so, but the sheer impracticality of time and logistics the process meant that few would even attempt it. Having those same records (filled with personal information) made available on the Internet is ripe for abuse by scammers, blackmailers, and just plain busybodies.
(And we could start a whole nuther thread about "adult" material and the way in which politicos are more and more amenable to restricting or even denying adult access to such things in the name of "protecting the children.")
Fuss, fume, and write your congresscritter all you like, but eventually you will have to realize that these sort of "baby-with-the-bathwater" laws are the wave of the future -- indeed, the future is already here. This is the dark side of technology -- the "unintended consequences" not just of laws, but of digital technology in general -- "information wants to be free," but now that it is not only free, but easy, expect more and more restrictions on your rights and freedoms. I don't like it any more than y'all do, but as long as savvy and aware people like /.ers are in the extreme minority, and the vast voting populace consists of easily manipulated and apathetic sheep, don't expect things to improve anytime soon.
"Every great cause begins as a movement, becomes a business, and eventually degenerates into a racket." -- Eric Hoffer
Look, laws are created by lawyers. Lawyers make lots of money from lawsuits. Therefore, it is reasonable to conjecture that lawyers have a vested interest in creating more silly ways for people to sue each other. I'm sure the lawyers who wrote the DMCA knew exactly what they were doing:
1) Taking away more civil liberties in favor of corporations
2) Creating more avenues to generate employment for lawyers
They really killed two birds with one stone on this one...
Unfortunately, you are mistaken. Those huge changes you're talking about were already enacted in the Copyright Act of 1976. DMCA did not change the moment when a work is considered to be under copyright protection.
You must be new here. Remember this is Slashdot. Microsoft Good! Kodak Bad! ;)
At least microsoft doesn't encrypt *my* documents and sue me for trying to convert them to ODF.
I'm sorry, my head is spinning from all the spin you two are giving this topic.
-- Tigger warning: This post may contain tiggers! --
I also wonder if they've done the legal filings required to legally collect money for candidates at the Federal level and for all 50 states... (a very, very nasty and expensive process, I've researched this) ... but that question is better addressed to them.
Thanks a lot for telling me about this.
Tech Public Policy stuff
The parent post is incorrect in almost all regards.
I like this passage in particular, for its incredible irony: "In fact, most people railing against the DMCA don't know the first thing about copyright law, because they have never had to deal with it in the slightest."
Aparently that includes you. 'Copyright by default' was a change made in the 76 Act to bring the U.S. into compliance with the Berne Convention.
With that correction made, we can now rephrase your entire argument as "omg thank gods for teh Copyright Act of 1976 for making these terrible bloggers blogging possible on the intarwebs thanks to all of these are huge changes that pretty much made the viability of commercial intarweb pages a reality!" Of course this argument is absurd on its face, as there existed mass publication for 100s of years prior to the 76 Act (e.g., pampleteers, federalist papers, through to civil rights organization).
Do you post more on Slashdot because you know your novel turn of phrase will be protected for nearly 200 years? Would you post less if it wasn't? 'Copyright by default' is a nearly useless feature of the Berne Convention (we already had laws for trust and honesty -- er, that is to say -- contracts, plagarism and fraud).
In my opinion the Berne Convention and the requisite re-writes of our laws and the continual term extensions don't uphold the bargian made in Article 1.8.8 of our Constitution.
In fact, the DMCA does undermine fair use and does undermine the public domain. This makes the DMCA counter to the exact reason why congress was given the power to establish copyright in the first place: to promote the growth of the public domain.
This is nothing personal though -- I just wanted to make it clear that you're muddying the waters, you aren't helping.
Read Heinlein's 1953 Revolt in 2100, now more than ever.
> It is clear to me that you are just one of these people who thinks that anything you can load on your harddrive you should now have absolute rights to do whatever you want with, up to and including reverse engineering it for whatever purpose you choose.
:) reverse engineering for the purposes of interoperability is legal under the DMCA. I.e., using my data in my ways with my software is still legal, and reverse engineering protection schemes for that purpose is still legal. However, that wheel has to be reinvented every time because there is no exception for the 'trafficing of a circumvention device'.
... freedom-lovers? Libertarians? Whatever you want to call us.
Incidentally... the DMCA has an exception for just this case
Further, current law doesn't stipulate what you can do with "anything you load on your harddrive". So in this regard "one of these people" is everyone. Copyright is not concerned with what you do in your own home (or on your own harddrive). Unfortunately, the DMCA is -- and that's why it's a problem to
The DMCA should have never been passed, there is no point to making copyright infringement illegaler. The Act is just a givaway to the copy-protectors. It doesn't help "artists" or "invetors" in any meaningful way (which seems to be your premise in other posts where you mock DMCA opponents). In fact, if the artists are programmers and the inventors are systems-integrators it actually hurts them.
I know some artists/craftsmen don't consider engineering an art. In that regard we'll have to aggree to disagree.
Again, nothing personal; you seem like a reasonale gent on other threads. It just sounds like you are willfully uninformed about the DMCA and what the world was like both before and after it. That's where the friction and the 'troll' ratings are coming from.
So, on-topic and concisely: Nikon can't stop you from reverse engineering their "raw" format. Nikon can't stop Adobe from reverse engineering their "raw" format. But, the DMCA makes it illegal for Adobe to distribute that that 'device'. Further, the illegal circumvention device may infringe a Nikon patent, which would make such software illegal even without the DMCA. This is how it was with film (the films and processes were patented, as I'm sure you know). The DMCA is a red-herring in all discussions about digital camera raw formats. I don't see any argument for the camera manufacturer having any rights above those of the camera operator. (Imagine if in the 60s Kodak decided that they owned every shot taken on Kodak film, incredible!)
Anyhow, cheers.
Read Heinlein's 1953 Revolt in 2100, now more than ever.
> No, but I certainly wouldn't have spent the last two years of my life (not to mention somewhere in the neighborhood of $60,000) producing and directing an animated film if I didn't have legal recourse to protect my material once I distributed it on the Internet.
Would you still have created this film under the 1909 copyright of 56 years?
Read Heinlein's 1953 Revolt in 2100, now more than ever.
Ok, just some little nits:
:-D I have some friends in the ad business, so this story doesn't really surprise me, but it's not a failing title 17, and has nothing to do with the DMCA. The DMCA doesn't offer new protections for web publishing, it doesn't have to.
:-)
> Before '98 there was very little short of registration of the work with the copyright office, or proof of publication, that a court would accept as proof of creation.
False. Again. No one has had to explicitly regerister a copyright since 1977. Since Ford signed the 1976 Act, every utterance, every scribble, every doodle, every little jingle-jangle of your keys has been copyright since the moment of creation. But... I now have an idea where the confusion of the issue comes from...
> So, cut forward, and tens of thousands of dollars have built up in legal fees, and the ultimate resolution of the case turns out to be that even though the company that had the logo first could prove that they had been printing their logo on their invoices for years, even though they had business cards with the logo, even though they had a website with the logo, they had never registered the logo, and had never advertised using the logo, so it was found that the company with the full page ads, and the registered trademark, and the software boxes using the logo, got ownership of the logo.
Right! Registered a trademark. A completely different matter (but lumped under "intellectual property" to confuse the issue, sometimes intentionally). Trademarks, although they are copyrighted, must be registered with the PTO, the Patent and Trademark Office. (Copyrights don't have to be registered.) So what's interesting in this trademark infringement case, is that after the judge ruled in favor of the registerer, the original artists -- you two -- could have counter-counter-sued them after the injunction for violating your copyright on the design.
Anyhow, thanks for clarifying the scenario for me! The fact that plagiarists exist does suck, but people have been getting sued for fraud for ages. Let those scallywags hear from your lawyer.
I've only read patent cases where the certified mail trick works. Which again is a whole 'nother (unrelated) facet to the "intellectual property" debate.
Read Heinlein's 1953 Revolt in 2100, now more than ever.
> I am not trying to be difficult, but it is also a fact that the Constitution says "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." However, if you try to argue that constitutional point with an LAPD officer while carrying a gun on the subway, you are going to end up dead, or in jail. There are many laws that say very lofty, and important things. That doesn't mean that once you get to court it turns out to be the law that is applicable to your case.
:-p
Touche. But it should be pointed out that comparing the 2nd Amendment to Article 1 to Title 17 to the DMCA is like comparing apples to oranges to bananas to cherries. I mean yes they're all laws/fruits in the most gerneral terms, some loftier than others, but I don't think we can get any meaningful progress other than to agree that justices have a hard row to hoe.
Just in this particular case, we would be better off comparing the DMCA to Federal concealed carry laws -- at least then we'd be in the same ball park.
Read Heinlein's 1953 Revolt in 2100, now more than ever.
> As such, no matter what the broad strokes of the previous law might have been, or what the broad strokes of the DMCA might be, the interpretation of the two is VERY different when you get into court.
Fair enough. We're probably coming from a very similar place. I just thought it was important to note that the reasons you claimed to support the DMCA (or at least disparage 'the bloggers' for not supporting it) are in fact reasons you support the 1976 Act and not the DMCA's provisions at all. Unless you design boats, run an ISP and backup other people's data, or are deeply invested in U.S. hegemony in global media/software markets the DMCA has little for you. I see it as just another government "land-grab", there can be no other reason to regulate that which was already illegal. All the legitimate benefits of the DMCA could have been the result of judicial clarification of existing law.
To me, placating the WIPO (a non-elected, non-representative, non-sovereign NGO) seems like a pretty dim silver lining. I don't want to debate whether the WIPO is neccessary or whether we should enter these byzantine Constitution-usurping treaties in the first place. I think we can leave it at "I'm no fan of the WIPO".
Read Heinlein's 1953 Revolt in 2100, now more than ever.
Wow. You are trolling me, again. I can't believe I started to think you were reasonable. I guess I'll keep playing for one more round.
...but let's continue...
> Ok, let's say that I make an animation, and I want to distribute it on the Internet [...] I absolutely do not want anyone editing it in any way I did not intend, or repurposing the content.
Except of course for fair uses, right? Except when the copyright expires, right?
> Now, I am sure to you the consumer, this all sounds quite unreasonable and like I am making demands that I have no right to, because you should be able to use the file any way you want. You, on the other hand, did not just give up two years of your life, and a fair chunk of what little money you have, to making this project.
Oh come off it. Every one works hard at what they do. Copyright still protects them regardless. If I download a movie -- because let's face it you are letting me do it, expression == giving -- and I want to crop it and mash it up and sit on it or any other concievable thing I CAN. What I can't do is distribute it.
> Now, before the DMCA, if you had downloaded that file off the Internet, decided to edit it like you wanted to, cropped it so my watermark was gone, cut the resolution in half, then encoded it in Flash with a fraction of the bitrate, and uploaded it to YouTube, I would have had no real recourse, because you were not doing anything wrong.
Another lie. If I uploaded it to anyone, let alone YouTube, I would have been infringing your copyright and BREAKING THE FUCKING LAW. A COPYRIGHT LAW THAT'S EXISTED SINCE THE FIRST CONGRESS. The DMCA didn't make copyright infringement illegal.
> Well, nothing wrong except shitting all over a couple years of my life, and perhaps damaging any chance I had of getting my project off the ground and making a decent living.
More pitiful appeals to emotion. I "shitted" on you? Well I guess I "shitted" on myself too by opening myself to criminal and civil penalties (again that existed before the DMCA). To claim a copyright infringer has done "nothing wrong" is yet another lie. Do you even hear yourself?
> However, legally, you had not actually done anything I could take legal action over.
Another lie. I've infringed a copyright, and since fair use is only an affirmative defense I am infact guilty until proven innocent, er sorry I mean to say infringing until found non-infringing. Copyright has always been stacked on the publisher's side.
> As such, there is no doubt in my mind that the only way I would have been able to release the piece (and maintain any control over its content) was through art house distribution, which would not have had the desired effect, and thus there is a piece of work that just never would have been made.
So you're saying that the business model that you want is impossible? It is about 'the money' right? Because otherwise, I would have imagined that art house distribution would be preferable to no distribution.
> After the DMCA, there are several issues with that scenario (even the dreaded Section 1201) and it would be a fairly straightforward issue to force (if need be) YouTube to take down the file. Furthermore, there would be a reasonable argument that could be made in court to be able to subpoena YouTube to provide the identity of the person redistributing the piece in an altered form, in order to send them a cease and desist order.
Without the DMCA, YouTube would have never accepted the upload in the first place without enough information to sheild themselves from liability. In the pre-DMCA world, YouTube would have been infringing, so they damn well would have taken it down the moment you called them, if they even existed at all. You wouldn't need a C&D "in good faith", you could easily go straight to the legal action. You can be damn sure they'd welcome a subpoena if it mitigated or absolved their contributory/vi
Read Heinlein's 1953 Revolt in 2100, now more than ever.
I'm not trying to be obtuse. I'm saying that you don't need to have registered a work to 'prove' the copyright is yours. If someone else is screwing you over, and you have to sue them for it, then great, you have to file; Big deal. Filing before some arbitrary date or before you're infringed has an additional benefit -- again that doesn't make it a requisite.
Really, when I said this post contains factual errors you could have just looked it up, and said, "yep, it sure does." Nobody would have thought you were any less of a man. Instead, you have to defend your falsehood. Great. That makes you look like an ass. Of course, I'm an ass for carrying it this far.
So at last...
You said: Before the DMCA [...] to have the full protection of copyright law, you either had to file for a copyright with the copyright office, or the work had to be published with the markings you mention [...] in order to be considered a copyrighted piece of work.
This is wrong.
You said: (which pre-DMCA did not specifically include the Internet, or any electronic form, but rather published in the sense of having to go through a printing press, and be distributed),
This is also wrong.
You said: If you just had some piece of artwork, or a photo, or a script, and were just showing it around your local coffee shop, or had it up on your personal webpage, then you had no guaranteed legal recourse under copyright law, since you could not prove publication, no matter how many little ©s you had on the piece.
This is also false.
You said: If you played a little ditty you came up with while sitting at the park, anyone who heard it could steal it, unless you had published sheet music for it.
False.
You said: That changed with the DMCA.
No it didn't.
You said: Copyright was changed to take effect at the moment of creation, not at the moment of publication, and the web and digital files were now considered to be a form of publication as well.
Wrong. As pointed out. This changed in '76. Work doesn't have to be published ever to have the protection of copyright.
That's all, man. It's not about your trials and tribulations with clients and what they should have done. It's not about any of that. It's about, hey, you made some false claims, and I thought I was doing you and others a favor by pointing that out. Your first comment about "the irony" should have never been marked informative, because it wasn't.
So I'll make this perfectly factual statement one more time: You do not have to register a work with the Copyright Office to have a copyright. The date you publish a work (or not) does not affect whether or not you have a copyright. As you've pointed out, you do gain ancillary benefits when making infringement claims if you do register and the degree of those benefits is affected by factors including the published state, and the published date if such exists and the registration date in relation to those. Is that pedantic enough for you? Is it perfectly clear?
That is all. Stop with the sophistry. You don't even have to admit you were wrong -- you just have to stop.
Respectfully,
Read Heinlein's 1953 Revolt in 2100, now more than ever.
Thank you again for taking the time to reply. You didn't mention if you've already made up your mind, but you did respond.
... but the fact remains, I did give it to them. If I gave someone a copy of that original and they cut it to pieces and rearranged it into something new I know that I would feel differently (amused, pleased, conceivably honored, but at the very worst indifferent). Still laws aren't about how we feel, nor are poor choices illegal.
So first things first, thank you for articulating your point of view: "I have been saying from the beginning that the DMCA is good for artists, and enables artists to have access to forms of distribution that they never had before. I have argued that it gives them tools to protect their work, and it is NOT about just protecting financial interests."
Now, some facts: I am an artist. I minored in art (drawing and painting). I also write music and play several instruments. I've dabbled in computer animation, but I wouldn't consider myself competent with any of the modern tools. So, I definitely see your point of view regarding "art", generalizations aside ("you don't know artists", art is not a commodity, what "artists" do and don't want people to do with their products, "every artist feels that way about" etc.). I also understand that art isn't about money (though you keep harping on the investment in your production). Software tools aren't cheap, instruments aren't cheap, we can both agree.
So -- in my opinion as an artist, telling someone what they can and can't do with a copy of your art is like telling them how they are supposed to feel when you're done with the performance. "I gave you this expression so you'd feel sad! How dare you parody it!" I'm not going to presume that you agree, even though this sounds like a pretty valid point to me. Now, don't misunderstand me, if I gave someone a painting, an original, and they cut it to pieces and re-arranged it into something else I would probably feel... upset, disappointed?
So, this is where our disagreement (or misunderstanding) comes from. For you, every download -- every copy -- feels like an original. For you, you need every technical measure possible, even the ones that arguably diminish other people's natural rights, to protect that feeling. I assert that it's pretentious to treat each copy as an original. I assert that copies don't need to be limited to only actions that amuse or enrich their creator. If someone uses a copy in a way that does not affect the creator's life, liberty, fortune, state granted expression monopoly, etc. I don't see why it should be regulated. Now on this point, the Constitution and the law agrees with me. That's why copyright doesn't govern use, it governs distribution.
Ok, so with that said, you can see why I'm against technical means to restrict my freedom (even with copies of other art/artistic products). I guess what it comes down to is (like usual) property rights. If an artistic work is fixed in a tangible medium it is property. Do you disagree? Why don't I have permission from you (and others like you) to exercise my own decisions about my own property?
Now, you say, "an attitude like [mine] will do more to stifle artistic expression than a 100 laws." How? If other artists can fairly use copies of my work in their own -- how on earth can I be stifling artistic expression. You accuse me of using fair use ambiguously. I do no such thing -- making personal copies (an activity I don't recall mentioning in the entirety of our conversation, maybe I have?) is just as fair a use as parody or commentary. Since I take it as a given that nearly all art doesn't spring forth without inspiration, I would go so far as to say that transformative derivatives should also be fair. I can see how this would be abused though, so I can understand and honor why the Copyright Law disallows it.
Now some direct responses:
"You seem to think the artist is some factory worker who's job it is to turn out
Read Heinlein's 1953 Revolt in 2100, now more than ever.