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Harvard Law's Nesson Says P2P Is "Fair Use"
eldavojohn writes "Ars has been covering the story of Charlie Nesson (alias 'Billion Dollar Charlie') of Harvard Law who's tangoing with the RIAA in court. His approach has been revealed in e-mails on his blog and has confused everyone from Lawrence Lessig to the EFF. His argument is simple: file-sharing is legal as it is protected by fair use. I dare say that even the most avid file-sharers among us would be a bit skeptical of this line of reasoning."
As much as I'd like to agree with him, I think someone's reaching just a little too far...
...going to Harvard is not a guarantee of sanity. Just looking at this guy's blog seems to confirm that suspicion. Of course, I wish him the best of luck! If he somehow manages to successfully argue his case, I will be very happy for him. Shocked, but happy.
Javascript + Nintendo DSi = DSiCade
A reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracyâ¦
might as well say p2p is fair use, the riaa/miaa think that someone bringing over a dvd/cd to watch with you is stealing...right?
I would like to say that Chebacca is a Wookie. Wookie are not from Endor, they're from Kashyyyk.
This does not make sense. What are Wookies doing on Endor? Why would an eight foot tall Wookie want to live with two foot tall Ewoks?
What does this have to do with digital piracy? Nothing. If this does not make sense then you must aquit.
Thank you ladies and gentlemen of the jury.
The plaintiffs in cases like these usually involves throwing as many claims as possible into the fan, hoping that at least a few stick to the defendant.
This is also a favorite tactic of prosecutors in criminal cases these days: pull someone over for speeding, and charge them with possession, molesting a teenager, carrying a concealed weapon, and reckless driving. Shock the defendant into pleading guilty to the reckless driving charge in exchange for dropping the rest, when in reality he deserved no more than a $200 ticket for speeding.
So in this case, why not claim "fair use"? Why stop at just one claim? Why not raise a thousand doubts about the legitimacy of the claims? It's certainly no worse (nor less truthful) than the RIAA claiming a million dollars in damages for putting 10 files up on an FTP site.
John
"I dare say that even the most avid file-sharers among us would be a bit skeptical of this line of reasoning."
Why is that? That is the situation in Canada (at least until some US corporate alliance successfully bullies our MPs into changing the law).
Honestly, this just sounds like he's torturing the concept of "fair use" until it suits his purposes. If I look cross-eyed at the tax code for long enough, I wonder if I'll find a way to have the government give me millions of dollars. Or maybe I'll just see a 3D sailboat.
It's reasonable for an artist to expect to be able to profit from their work for a period of time. Protecting that right encourages others to spend the time to create similar work.
The problem is that now that "period of time" is effectively forever, which is bullshit. Those works become a part of the collective culture of a society and it's not right for corporations to continue to hold an intellectual monopoly on those works, long after the original artists have died.
ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
While lauded on Slashdot, Lessig only wants to restore copyright to the original length instead of abolishing it completely
Well now, that's just crazy talk. Restoring copyright to a reasonable term? Madness, I say. It's not far down that slippery slope before we get to the point where we give Congress the right to promote the progress of science and useful arts by granting time-limited monopolies to authors and inventors. How far we have fallen from the purity of our true common law roots! We must re-enthrone the true constitutional principle, embodied in the 32nd Amendment, that "Congress shall make no law abridging the right of the people to keep and bear w4r3z w00t!"
Today's Sesame Street was brought to you by the number e.
The enormous benefit to who? Creators gotta get paid. Creators that never get paid stop creating, or at least stop doing very much creating because they are too busy doing some other job in order to pay the bills. Copyright, the idea that creators can exert limited legal control over who can copy their work, is a fairly successful real-world solution to this problem. And, on the whole, it's worked fairly well. Yes, things have started breaking down a little over the last couple decades and there are some problems that need to be addressed. A more limited term and more lenient fair-use and modification would go a long way. But content can NOT be free. It has to be paid for. The eventual viewer may not pay directly and instead pay through advertising or some such, but it's the same thing.
If copyright disappeared tomorrow, and I mean really disappeared overnight, the only new stuff showing up on the file sharing networks a week from now would be Linux builds. If, as a society, we decide that copyright is no longer working for us, we had better put an alternative in place before we pull the plug.
To you law students and young lawyers out there; please don't think you can learn anything from this case. Just ignore everything you are seeing from both sides. I have seen more bizarre filings from both sides' lawyers than I would imagine possible.
Sounds like this new exchange won't do anything to alter his opinion...
I am TheRaven on Soylent News
It seems to me that this strategy is more likely to provide fuel to the fire for overturning or severely diminishing Fair Use. If he can prove that electronic distribution of copyrighted works is covered under Fair Use, then it makes a strong case that Fair Use has overstepped its intended bounds. Wendy Seltzer says as much in the referenced Ars article, though I came to this conclusion just from reading the summary before deciding to make sure the summary wasn't just misleading.
Oh, was that my outside voice?
Although I have raised fair use as an affirmative defense in several cases, I haven't litigated any fair use defense scenarios yet, so I'm not going to be able to comment in depth, and I'm not going to get into any dialogue about it. Unlike Prof. Nesson, I can see no advantage flowing to my clients and future clients from my tipping my hand to the RIAA. When I have an argument to make, my adversaries can read about it in my court papers; and then we can chat about it on Slashdot until the cows come home.
But I will say this much for the benefit of my friends here:
1. Prof. Nesson and all of his assembled, learned advisors and cyberlaw scholars do the subject an injustice by overly simplifying the term "file sharing".
2. There are many different factual scenarios within the penumbra of "file sharing".
3. Some of those factual scenarios would clearly be entitled to a "fair use" defense; some clearly would not; some fall in a gray area. Contrary to what the 'content cartel' lackies would have you believe, and contrary to what Prof. Nesson's friends seem to think, we are at the beginning -- not the end -- of mapping out the boundaries of "fair use" in this area.
I will also interject, from a procedural standpoint, that I find it unusual and inexplicable that a conversation between an attorney and prospective expert witnesses would be posted on the internet; one would have to wonder whose side the attorney is on.
Ray Beckerman +5 Insightful
The only alternative to copyright is... nothing. You can't copyright a concert. You can't copyright movie theater seats. Yet you can still sell those. If copyright disappeared overnight there would be plenty of things still being shared.
Stop think of P2P as the enemy... try thinking about it as "free publicity"
My blog. Good stuff (when I remember to update it). Read it.
A website explaining the law (in german only, sorry, try a translator).
I was wrong though, it is based on the right to own a private copy (regardless of the source), not "Fair Use".
NB: The message above might reflect my opinion right now, but not necessarily tomorrow or next year.
(didn't read tfa, but here's why I think we should be sharing information:)
Because we can!
Nevermind if it's fair use or illegal. We can enrich the lives of all mankind with a press of a button. Welcome to the 21:st century.
Some of my favourite people are from th US; Vonnegut, Chomsky, Bill Hicks.
Based on the traditional four point analysis of fair use, the typical "file-sharing" /.ers are used to doesn't seem to fair too well:
1. The purpose and character - file-sharing is hardly transformative or derivative. You could argue transformation much better with things like mashups, etc. But torrents of movies and music?
2. Nature of the copied work. If it's factual, the infringer is on better ground - e.g., if you're a chemist who photocopies a journal article so that you can take the copy into the lab with you, rather than the entire journal. There are of course fair uses of creative works, too. This would of course depend on the individual work, not "file-sharing" as a whole, though probably the vast majority of file-sharing is in creative works, rather than scientific/factual.
3. Amount/Substantiality - well, most people I know torrent the whole film, not just 5 minutes of it, so...
4. Effect upon economic exploitation of the work - would seem to go against file-sharers. Obviously they aren't buying it! And by sharing it, they may be hurting the owner's ability to sell it, etc.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
I wouldn't mind going back to patronage. After all, Greece and Rome had no notion of copyright, and in fact they had teams of amanuenses copying literature and selling it in the marketplace with no money going back to the author, but they still produced some of the greatest works of literature of all time. Plus, the upper classes tend to have better taste in arts, so a solution that gives more power to them to decide content than just anyone would probably be a positive step.
sounds like this guy has been to the chewbacca school of law!
Are you trying to say that performing artists should *perform* to earn a living? Like singers singing for people, and musicians actually getting on stage and making music? Your novel ideas are bordering heresy, my friend...
Mind the frickin' laser...
If you own a copy of the work, and you use the p2p to get an alternate format of the same work, i would say it MAY be fair use.
If you use p2p to sample the work before buying it or not, it also MAY be fair use.
It depends ALOT of your local laws... the state of mind of a kitty in the other side of the world and the phase of the moon.
And... IANAL
If not Fair Use, how about individual Civil Disobedience? Consider filesharing as protected, not for profit, speech in protest of the decades of record companies ripping off consumers as well as artists through their longtime payola, high bar of entry for everything from recording studios to pressing plants, monopoly of the sources of production, distribution, promotion, and sales of music. And don't forget the bundling of 1 worthwhile song and 11 crap tracks in a highly overpriced, take-it-or-leave-it, CD, or the outrageous statutory damages that their lobbying and paying off of the politicians have jammed into Copyright Law. Oh, and did I mention their outright theft of the Public Domain. Songs copyrighted today will not enter the PD during the remainder of your life time. Not exactly what our Founding Fathers had in mind, having lived through that situation of eternal copyrights in Europe of the time already.
Yeah, I'd call that something to protest by any means possible.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Unlike Prof. Nesson, I can see no advantage flowing to my clients and future clients from my tipping my hand to the RIAA.
Which makes me wonder if Charlie Nesson might be leading the opposition down the garden path, attempting to bury any real leaks out of his student brain trust under a barrage of unrelated sideshow acts?
(I'm reminded of an alleged CIA tactic called "the second cover": You wrap the secret in TWO cover stories. The first is plausible, even if potentially easily detected as bogus. The second is the kind of stuff you read about in tabloids and certain late-night talk shows (some of which may be the fossils of old second cover stories). When somebody penetrates the first cover they find the second cover. At that point any of several things may happen, including: A) They believe the second cover. Hilarity ensues. B) They "recoil" back to the first cover. C) They become suspicious of any other reports on what is actually under the covers.)
(Then again, maybe Charlie's mind has finally gone. B-( )
As with NYCL's adversaries, we'll know what the Billion Dollar Charlie team's arguments REALLY are when we read them in the court papers. B-)
Meanwhile, if this is what is going on, I hope my speculation (if it has any effect) adds to the confusion rather than blowing the cover.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
FYI I would like to point to my fellow slashdotters that in many countries unlike the USA, it is explicitly spelled out as legal the downloading of copyrighted music or movies for _private_ _non-comercial_ use. In the Netherlands it is like this, and AFAIK also in Spain.
This is just to point out that it is possible to have sane laws, and that the world just doesn't come to end if you do.
4. Effect upon economic exploitation of the work - would seem to go against file-sharers. Obviously they aren't buying it! And by sharing it, they may be hurting the owner's ability to sell it, etc.
Or in favor... because for sure, there are no scientific studies regarding the issue (at least of my knowledge).
Sometimes a music becomes a success just because it was wildly distributed on the p2p.
Also of notice... "file-sharing" isn't only p2p... you can have file-sharing on almost all current OS...
Even windows has that capability since windows for workgroups... ;)
This line of thinking confuses the creative genius with the entrepreneur.
The entrepreneur anticipates consumer need and employs capital in production to satisfy that need. He does so for the sake of profit. The creative genius, on the other hand, is rewarded through the process of creating itself.
To dispense with economic theory, I fall into both categories. I run a business, but I'm also a musician and an artist. I've written, recorded, and released an album. I've written stories and painted pictures etc. First of all, I have never met a single musician who writes music with any kind of expectation of profit. Profit is never the motive. I've met and jammed with lots of people who perform for profit, or teach for profit etc. In these cases they see the value of their product or service and will exchange that product or service. However, when they sit down to write a song, they never consider exchange. They write for the sake of writing.
If you ask any of them, myself included, if copyright has ever aided them financially they will think for a moment and then, reluctantly, answer "no". However, that is not to say that they are against copyright. Usually, they like the idea of copyright because morally they dislike the idea of some "greedy capitalist" being able to copy / redistribute and make money using their creation. However, I then ask them whether their status as a musician, and consequently further prospects as a musician and song-writer, would be aided or hindered if others distributed their work for them ?
Then they pause and think.
As a song-writer our biggest challenge is distribution. Getting radio play is nearly impossible for an independent artist. The Internet has helped tremendously, but we still have to labour really hard to get our songs up on all of the music sharing sites. Even then, few people bother to listen to us because there's so much out there that people put up their filters and wait for their friends to recommend new stuff etc.
To go back to the economic argument, if radio stations and Internet start-ups did not have to worry about copyright then web-sites, and DJs and radio stations would play and share much more music than they do now. People probably wouldn't share much more, since most people share copyrighted music in spite of the law, but in theory artists would get much more exposure while having to do less. As a result, the better musicians could conceivably get a fan-base much more easily, doors would open for them and their prospects as a professional musician would widen.
In conclusion, the only people who actually benefit from copyright are the distributors. Musicians are not distributors. It's a hard business to distribute music, and it's much harder thanks to copyright. That's it's whole point. To keep competition out. Disturbingly, competition in the mainstream music industry almost always includes the artists themselves.
You can't copyright movie theater seats. Yet you can still sell those.
Concerts are certainly a reasonable argument, but I don't know if movie theater seats are. Theaters are already losing ground to people staying at home, and this will continue to be the case as large-screen TVs and home theater systems become more prevalent. Cutting the cost of seeing a movie from a few bucks (or a couple days with something like Netflix) to download it would, I suspect, become the death knell for most theaters.
"It's reasonable for an artist to expect to be able to profit from their work for a period of time."
You need to demonstrate then that it is essential for copyright to exist in order for this to happen.
There's a strong case that simply being first-to-market and being known as the genuine article is enough to make a profit, albeit a smaller one.
This would set an ugly precedent...electroncally shared media would be 'Fair Use'. While the media industry is in major need of reform, I don't feel we should be able to have anything we want for free. It does cost someone money to produce this stuff, after all.
Ah but P2P does have fair uses, not everything shared is copyright infringement.
Falcon
Should there be a Law?
Every single good or service that has ever been invented has been done to satisfy some kind of need or desire.
When you buy something, you are acting to relieve some form of uneasiness. Maybe it's just boredom or to be part of a fad (the pet rock comes to mind), or maybe it's for survival (food, clothing, shelter etc.). But every single product or service has only existed because people, at the time they were consuming that product, felt that it made their lives better.
So if people are staying home to watch movies, then either the need that going to the theater once satisfied is being better satisfied by other means, or the cost of going to the theater is no longer in line with their subjective valuations regarding what doing so is worth to them, or the need has vanished all together.
Assuming the need is being filled by something better (or cheaper or both), we now have some new invention that replaces the utility of a movie theater. If movie theaters all go out of business then those entrepreneurs, capitalists and employees will go into production that fills more urgent needs.
This process always involves a restructuring and people will be temporarily unemployed. But any attempt to force conditions to remain the same will be futile in the long run, and will only prolong the restructuring process. It's thus better for everyone if the movie theaters either go out of business or shrink to satisfy a smaller market.
It's reasonable for an artist to expect to be able to profit from their work for a period of time.
Revenue is the result of offering something that others are willing to buy from you rather than going without or turning to one of your competitors. Profit, in turn, results from finding a way to make that revenue exceed your opportunity costs.
It is not reasonable to expect to profit merely by performing work, without meeting the other requirements. Why should artists be singled out for special treatment?
Copyright is just an incentive system, nothing more. Like all incentive systems it results only in driving over-production of the subsidized goods, at great expense to everyone in terms of actual wealth.
"The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
Oh but what if it's not something can can be done as a performing art?
What if it's a video game, animation, or software?
There's more to copyright than music, but Slashdot seems to forget this fact and call the problem solved.
I will also interject, from a procedural standpoint, that I find it unusual and inexplicable that a conversation between an attorney and prospective expert witnesses would be posted on the internet; one would have to wonder whose side the attorney is on.
The side of openness of information?
So if you hired a lawyer to represent you in a litigation, you would want that lawyer to be more concerned with the "openness of information" about your case than with protecting your interests?
You are a most unusual and wonderful person; I would like to meet you sometime.
Ray Beckerman +5 Insightful
Numbers can't be copyrighted.
An mp3 is a number.
Now gimme a fat sack o' cash and I'll shut up.
If you can read this, I forgot to post anonymously.
2. There are many different factual scenarios within the penumbra of "file sharing".
I guess so, but wouldn't there be a scenario about which you could say, "if this is fair use, then most file sharing is fair use."? Something like: setting up your computer to be the server specifically with the intent of allowing others to download.
I don't really know. I tried reading something from the guy's weblog, and I couldn't understand what he was talking about. Plus, I don't think I can trust someone who looks like Senator Palpatine.
The only sense I can make out of it is, might he be trying for jury nullification? It seems like there is an argument to be made, that copyright law wasn't intended to address private non-commercial sharing. However, (IANAL) it doesn't seem like current fair use law makes a blanket exception for sharing non-commercial copies. I've always thought of the argument more as a reason to think about rewriting the laws to try to address copyright concerns in a sensible way, given the realities of the Internet age.
I could see a jury being persuaded to ignore the law, though. Given a random set of 12 people, how many of them do you think have engaged in file sharing themselves?
I like the 33rd Amendment, which gives the People the right to keep and wear b34rz!
The enemies of Democracy are
Cutting the cost of seeing a movie from a few bucks (or a couple days with something like Netflix) to download it would, I suspect, become the death knell for most theaters.
For some downloads may be a death knell but not to all. I love going to the theatre. Because even a big screen TV doesn't match a theatre screen and because I get away for a little bit. And not everyone could afford one of those TVs. Even a 42" TV can cost more than a $1000, I know because I've been looking at them.
Falcon
Should there be a Law?
Charles-
You're so right. :-)
Here are links to some related things I've written, to maybe give you some more inspiration. :-)
This posting asks, if copyrights are so valuable, why is there not an annual tax on them for the burden they impose on society?
http://journalism.berkeley.edu/projects/biplog/archive/000431.html
This long essay talks about the deeper social issue is the transition to a "post-scarcity" society. :-)
"Post-Scarcity Princeton"
http://www.pdfernhout.net/post-scarcity-princeton.html
(Sorry, I did not go to Harvard, but I do mention it there in passing.
This is a satire about what the practice of law would be like if the law was set up the way most lawyers advise the rest of the world to live: :-)
"Microslaw"
http://www.pdfernhout.net/microslaw.html
Albert Einstein said: "If at first, the idea is not absurd, then there is no hope for it".
We need to move beyond a lottery model for supporting creativity.
Keep trying. History will ultimately be on your side.
--Paul Fernhout
A 21st century issue: the irony of technologies of abundance in the hands of those still thinking in terms of scarcity.
Absolutely. But recording artists typically get nothing from RIAA's efforts to 'collect royalties and damages'. RIAA didn't create the work, why should they get the money?
How about we shred the 'work for hire' contracts of the media companies, make copyright a limited term and not transferable ( why should my great great grandkids profit on something that I created 20 years ago? ) to a corporation or 'holding company', and set it to expire after the death of the original copyright holder?
Understanding the scope of the problem is the first step on the path to true panic.
If I were on that jury, most of his argument wouldn't sway me. But there's just one thing: the penalty. The penalty for copyright infringement is $150000?! If so, then copyright infringement must be a very serious crime, right up there with rape and murder. But p2p copying, which I would have assumed is infringement (because it seems like infringement in every way I can think of), obviously isn't anywhere nearly as serious as other crimes for which the penalty is $150k. Ergo, p2p copying must not be copyright infringement. If it's not infringement, then it must be Fair Use.
It's sort of the opposite of "If you can't do the time, don't do the crime." If the penalty doesn't fit the act, then the act must not have been a crime. Or maybe I'd borrow from a certain princess: The more you tighten your grip and increase the penalty, the fewer situations the penalty must apply. Somewhere behind the law, somewhere in its dark origins, is a motivation: fairness. If you defy the motivation for the law, then there is no law. When they set the penalty for infringement to $150k, they created new criteria for Fair Use.
I know there was a case here in Canada where the judge said the P2P was considered fair dealings.
Placing something in a public place is not distribution as each downloader is making a private copy. Private copies are fair dealings. The judge compared P2P to a Library that had copy machines. The book is in a public place, they provide the machine to make the copy but each person copying something from a book is making a private copy and that's ok under Canadian law.
This is why the Canadian version of RIAA has been pushing for new copyright law.
Free as in "the Truth shall set you..."
It's reasonable for an artist to expect to be able to profit from their work for a period of time. Protecting that right encourages others to spend the time to create similar work.
The problem is that now that "period of time" is effectively forever, which is bullshit. Those works become a part of the collective culture of a society and it's not right for corporations to continue to hold an intellectual monopoly on those works, long after the original artists have died.
Works by artists are actually the result of services.
Copies of the original works do not have the same value as the original work. In some cases the original work is temporal and so has absolutely no value; it no longer exists.
Copies which are functionally infinite in supply (digital copies, for example) are, by the logic of classic market economics, of infinitesimal value. Supply will always be near infinite and demand a ridiculously small fraction of that.
Our legal system attempts to deal with information as a property that can be owned. It can not be owned. A new system is required and starting with an extension of Fair Use may lead to this, but does appear spurious.
There are scientific studies. There are some older studies that argues that there is a link between filesharing and decreased profits however the newer ones argue that there are no significant correlation. Or at least that is what the expert witness claimed in the pirate bay trial
Man, just talking about p2p music downloads and lawyers pop up! :-)...[I was smiling when I said that, good sir]
Thanks[again] for the relevant links in a timely fashion.
IMO, this is all just 'horse trading' in a way. Sooner or later, the extremes will negotiate to a mutually acceptable middle area....I hope.
Right now, the balance is tipped in favor of the labels/RIAA. Nesson is rabble rousing to try and tip it back towards the customers, or at least an even balance.
It's kind of like listening to Richard M. Stallman. Most people fall in the middle.
We are just watching to extremes squaring off. Maybe some good can come out of it. *crosses fingers*
Down With Slashdot BETA!!! I've been around the corner and seen the oliphant; you can only abuse me from your perspecti
That's why one can say that people wouldn't buy the media if it weren't available as an unauthorized copy.
You don't even need to use that ridiculous $150k per mp3 the RIAA insists upon, just add the retail price of every work in a typical teen's computer and you'll see there's no way he or she could have bought it.
At $0.99 for a 3MB file that's typical of mp3 songs, every 100GB of media has a $30000 worth, if the retail price is used. How much do teens get as allowance? $100/week or so? Is it realistic to assume a kid would spend six years of his allowance on music, if he couldn't download it as P2P?
"Fair use" or not, the fact is that P2P harms no one. It doesn't take anything away from the legitimate owner, and there's no lost profit either.
First of all, I have never met a single musician who writes music with any kind of expectation of profit. Profit is never the motive.
I had to assume you're only working with small-time musicians, then. Copyright doesn't really help musicians until they start to gain a little bit of fame. And I've definitely heard musicians - small enough that you've never heard of them, but large enough that they're recording music - defend copyright vigorously.
As a song-writer our biggest challenge is distribution. Getting radio play is nearly impossible for an independent artist. The Internet has helped tremendously, but we still have to labour really hard to get our songs up on all of the music sharing sites. Even then, few people bother to listen to us because there's so much out there that people put up their filters and wait for their friends to recommend new stuff etc.
To go back to the economic argument, if radio stations and Internet start-ups did not have to worry about copyright then web-sites, and DJs and radio stations would play and share much more music than they do now. People probably wouldn't share much more, since most people share copyrighted music in spite of the law, but in theory artists would get much more exposure while having to do less. As a result, the better musicians could conceivably get a fan-base much more easily, doors would open for them and their prospects as a professional musician would widen
Copyright is not forced on you. You have the right to opt-out of copyright. You can go creative commons. You can declare that your work is public domain. There are even some publishers trying to make this system work (i.e. the musicians give-away their music for free; you can pay if you want, companies cannot use it for free - which is a creative commons licence). You can't use "musicians would be helped with no copyright" as an argument against copyright - because musicians *choose* whether or not they want their work under copyright.
In conclusion, the only people who actually benefit from copyright are the distributors. Musicians are not distributors. It's a hard business to distribute music, and it's much harder thanks to copyright. That's it's whole point. To keep competition out. Disturbingly, competition in the mainstream music industry almost always includes the artists themselves.
I think a lot of people would disagree with you. Maybe you're argument was only meant to apply to musicians, but as a software developer, there's not much sense in continuing to write software if I'm not protected with copyright.
That's wrong. Lessig wants to make filesharing legal. He's doing a lot more than trying to shorten copyright lengths back to "the original length".
It's a hard business to distribute music, and it's much harder thanks to copyright.
This is a really interesting point, since the whole PURPOSE of copyright is -- or was, anyway -- to provide a way to motivate and fund distribution.
The statesmen who wrote the first modern copyright laws did it because they didn't want books that people had written moldering away unavailable to the public simply because no publisher would take a chance on printing up copies that may or may not sell. The reason they were unwilling to take the risk is because if a book proved popular, other printers would quickly start churning out copies. Of course the original printer would still make money on a successful book, but not as much... and not enough to offset a number of unsuccessful books.
So, the copyright monopoly granted to the author enabled negotiation of printing contracts that guaranteed the risk-taking printer lots of money if the book succeeded.
History lesson out of the way, what you're saying is that, in your opinion, and with respect to music, copyright law is not only no longer encouraging distribution, it is impeding distribution.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
Man, just talking about p2p music downloads and lawyers pop up! :-)...[I was smiling when I said that, good sir]
Thanks[again] for the relevant links in a timely fashion.
IMO, this is all just 'horse trading' in a way. Sooner or later, the extremes will negotiate to a mutually acceptable middle area....I hope.
Right now, the balance is tipped in favor of the labels/RIAA. Nesson is rabble rousing to try and tip it back towards the customers, or at least an even balance.
It's kind of like listening to Richard M. Stallman. Most people fall in the middle.
We are just watching to extremes squaring off. Maybe some good can come out of it. *crosses fingers*
Your thoughts are probably very comforting, and for mental hygiene purposes represent a perfect approach.
Unfortunately, to the imagination-challenged, faith-deprived, reality-based types like myself... it sounds like wishful thinking.
But from your mouth to God's ear.
Ray Beckerman +5 Insightful
You need to demonstrate then that it is essential for copyright to exist in order for this to happen.
This is an arguing technique known as "Shifting the burden".
There's a strong case that simply being first-to-market and being known as the genuine article is enough to make a profit, albeit a smaller one.
There's a lot more covered under "copyright" than "articles". Books, movies, music, software, etc - all of these things are covered under copyright. "Being first to market" has virtually no value past the first 24 hours. Many of the things covered under copyright are valuable for a much longer period of time than the first 24 hours. Do you really think that Microsoft could earn back their costs on Windows based simply on the people willing to pay a couple hundred dollars within the first 24 hours? Do you think 3D Studio (retail cost: $3000) is going to earn back their money based on "first to market" before being quickly undermined by free copies that appear on the web within hours?
I could see a jury being persuaded to ignore the law, though. Given a random set of 12 people, how many of them do you think have engaged in file sharing themselves?
Jury nullification is unlikely to work. Prosecutors and many judges dismiss potential jurors who believe in jury nullification. Judges even instruct jurors that they are required to decide the facts, was a law broken, and not to judge the law. In 1895 the US Supreme Court case Sparf v. United States, 156 U.S. 51, 102 the justices rejected jury nullification.
Falcon
Should there be a Law?
Based on the traditional four point analysis of fair use, the typical "file-sharing" /.ers are used to doesn't seem to fair too well:
Nesson's assertion is that the four points described in Title 17 are descriptive, not prescriptive, and that Fair Use is a broader and deeper concept arising from common law.
From a more practical perspective, his belief is that if he can convince a judge to let him put this argument in front of a jury then he can convince them that Fair Use applies. My understanding was that points of law are decided by judges, not juries, but I'm sure he has an argument as to why the jury should get to decide this one.
Or maybe he's just a loon, or just throwing out red herrings to distract the opposition.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
Not all music, just the music that requires money to get it. Too bad artists. This fight has gone way beyond "supporting the artist." We are propping up a failed institution. Artists, you weren't going to get that hit album anyway, just keep driving the cab -- I know that's what I will be doing to pay the bills.
Music is not food, shelter or clothing. You can live without it. Don't buy any music affiliated with the RIAA and they will cease to exist/be assholes. I am going to start a band that makes songs that are almost the same as hit popular songs and give them away online as mp3 and ogg torrents. I kick ass at music production, so the copies will be good. I will study the law just enough to make copies that fall just outside any laws that say you can't copy a song. Change a note here, some lyrics there. Catch me if you can! All the kids will be dancing to my songs in the clubs and on the subway. In fact, that's a good hook. I will use that...
Copyright is just an incentive system, nothing more. Like all incentive systems it results only in driving over-production of the subsidized goods, at great expense to everyone in terms of actual wealth.
Not true. If you buy some copyright work, you are essentially saying "having your product is worth more than the money I'm spending for it". Both the artist and the consumer benefit. When you remove copyright, you are forcing creators to act like charities - creating far more value for the public than the public is paying them back. Copyright balances things out so that creators get back (in money) some of the value they've created for the world (in digital content).
Even under copyright, the creators are producing more value for the world than they are earning back in money (because of the "having your product is worth more than the money I'm spending for it" part of consumer behavior).
With software the "performance" is the creation of the source code.
On the other hand, distributing compiled code is not performance.
Its been realized by the leading edge for many years, that software needs to operate as a service's industry, unlike hardware which is a manufacturing industry.
This line of thinking confuses the creative genius with the entrepreneur.
...
However, that is not to say that they are against copyright. Usually, they like the idea of copyright because morally they dislike the idea of some "greedy capitalist" being able to copy / redistribute and make money using their creation. However, I then ask them whether their status as a musician, and consequently further prospects as a musician and song-writer, would be aided or hindered if others distributed their work for them?
What you express here is a lot of the feelings I have about working on open source software. I write programs because it is something that I enjoy doing, in much the same way you seem to enjoy writing music. I would be upset if the work I did was done without any attribution to me as the author. If some company were to take what I have written and make a profit, I would love to hear about it, and I would like to be respected for my creativity. Drawing form these feelings, the *popular* music industry does well with keeping the name of the "author" with the work itself. Some Joe would not think about claiming a popular song as their own (without a legitimate reason).
There is a lot there to think about, but I must say I identified with what you say as a creative producer of a copyrightable material. And, yes, my day job is as a software engineer, so it is always fun to live both the commercial and hobby sides of my creative outlet. Sometimes they mesh and sometimes they are conflicting. Software development is also going though this sort of "identity crisis", so to speak, that the music industry is. They just seem to be taking different approaches at times.
Our legal system attempts to deal with information as a property that can be owned. It can not be owned.
That idea leads you to a very bad place.
It means that anyone can copy any work and sell it. For example: Walmart can make their own copies of music and sell it. It means any guy on the street can burn CDs full of movies and software, and then sell it for a a few bucks. It means that if you give your screenplay to a movie company in hopes of selling it to them, they can turn around and make a movie from your screenplay without paying you anything. And that same movie company can use music in their soundtrack that they never paid for. It means advertisers can use music in their commercials that they never paid for. It means movie theaters can charge movie-goers for movies that they never paid for. It means Barnes and Noble can print up their own copies of books, paying the original authors nothing.
In the end, you have to accept the fact that "information"* does have owners, or else you have to accept all kinds of very bad consequences.
* I prefer the term "digital content" or "digital creations" over "information" because the word "information" leads people to think about digital creations in a way that deprives the owner of ownership.
But commercial content can NOT be free. It has to be paid for.
There, fixed it for you.
Theaters are losing ground? since when? Just because the industry says so doesn't make it true.
My blog. Good stuff (when I remember to update it). Read it.
No matter the technology, whether it be P2P or physically burning a CD, giving a copyrighted file to one of your closest friends is fair use. Giving it to 100,000 of your closest friends isn't.
Life is hard, and the world is cruel
I expect you'll get modded up further, but this is dead on. Fair use is a defense to copyright infringement. The method used to infringe the copyright is largely irrelevant.
The real questions in the RIAA trials are always: was a copy made? If so, was it an authorized copy? And, of course, the RIAA evidence gathering techniques raise plenty of questions on their own.
I expect Nesson's point is being transcribed poorly. I say this because, even though he's at Harvard, I expect a professor to get at least that much nuance in the law. Even if it's only his research assistants helping set him straight.
I should also point out that $150,000 per infringement is a statutory amount. That is, the copyright law gives that amount as the damages for infringement (or actual damages, whichever is more). That's both the incentive to register your copyright (it's good to stick a verifiable date on them) and disincentive to infringe. As a matter of personal opinion, it seems ridiculously high, and perhaps there should be more discriminating infringement penalties ($100 per copied song, for example), but I don't think a statutory minimum is a bad idea in the abstract. I know I'm in the minority, but I don't think copyrights should be entirely abolished. Made sane, sure. Completely removed, no.
--
IAAL, but not YOUR lawyer. This is my opinion, not advice.
A few years ago, I was required to read such a study for a Telecommunications Economics course at my university. The main conclusions of that study were thus (all are direct quotes from the study):
1. "Downloads have an effect on sales which is statistically indistinguishable from zero."
2. "Even in the most pessimistic specification, five thousand downloads are needed to displace a single album sale."
3. "The business model of major labels relies heavily on a limited number of superstar albums. For these albums, we find that the impact of file sharing on sales is likely to be positive."
4. "Our estimates indicate that less popular artists who sell few albums are most likely to be negatively affected by file sharing."
The study was done by Felix Oberholzer from Harvard Business School and Koleman Stumpf from UNC Chapel Hill. It was written in 2004 and I believe the actual study was done in 2002. I can't share the PDF myself because I don't think I have any server capable of withstanding a slashdotting, but a quick Google search turns up this link which appears to be the same: http://www.unc.edu/~cigar/papers/FileSharing_March2004.pdf
Like most slashdotters suppose, their basic conclusion is that the majority of file downloaders would not have become paying customers. I think anybody being reasonable would agree that that is true; even if you may have bought a handful of the albums of songs you downloaded, you're very highly unlikely to have bought even a majority of albums from which you download songs.
I'll leave it up to others to determine the study's validity, but there it is and those are its conclusions.
That idea leads you to a very bad place.
It means that anyone can copy any work and sell it. For example: Walmart can make their own copies of music and sell it. It means any guy on the street can burn CDs full of movies and software, and then sell it for a a few bucks. It means that if you give your screenplay to a movie company in hopes of selling it to them, they can turn around and make a movie from your screenplay without paying you anything. And that same movie company can use music in their soundtrack that they never paid for. It means advertisers can use music in their commercials that they never paid for. It means movie theaters can charge movie-goers for movies that they never paid for. It means Barnes and Noble can print up their own copies of books, paying the original authors nothing.
And this is supposed to be bad?
Nesson's assertion is that the four points described in Title 17 are descriptive, not prescriptive, and that Fair Use is a broader and deeper concept arising from common law.
Well the "traditional" four points, as I put it, are just that - they are the aspects of fair use that are typically taken into account, but IIRC, there are cases that explicitly state that those four factors are not exhaustive, so he may have a point.
Indeed, I've sometimes wondered if fair use actually is harmful to those of us who want copyright reform, by acting as a steam valve of sorts: really absurd copyright nonsense is taken care of by fair use, but only slightly absurd nonsense isn't covered by it.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
First of all, I have never met a single musician who writes music with any kind of expectation of profit. Profit is never the motive.
Profit in and of itself doesn't have to be the motive.
Creative genius can do more creation if it's paid to do the creation.
If I'm a creative genius and I'm not compensated for it, then I have to spend time doing a job that pays me money. That time is time not spent creating stuff.
William of Ockham had no beard. The most likely explanation is that it was chewed off by squirrels every morning.
Nevermind if it's fair use or illegal. We can enrich the lives of all mankind with a press of a button. Welcome to the 21:st century.
There is no solidly anchored tradition of public funding for the arts in the U.S.
The foundation grant usually goes to projects that are - in the Puritan tradition - worthy and educational but not explicitly "entertaining."
Pixar is profit-driven.
No deposit, no return. If you don't buy their product, they simply disappear.
Proctor & Gamble's soap opera "The Guiding Light" will end production in its 72nd year on radio and TV. To put this in perspective, Guiding Light still draws about the same numbers as Battlestar Galactica did in its prime.
Five days a week.
P&G is selling household staples in a recession.
It invented daytime drama.
So who do you think is going to underwrite the next epic prime time sci-fi serial?
Expensive. Risky. Technically demanding.
Knowing that the geek will flood the net with commercial free copies? That there is no hope of recovering your costs now or ever?
4. Effect upon economic exploitation of the work - would seem to go against file-sharers. Obviously they aren't buying it! And by sharing it, they may be hurting the owner's ability to sell it, etc.
IANAL but didn't every *AA just have a record year (again), despite of the general downturn? They can blame it on "movies inspiring people when they are poor" but I'm not buying that.
At least my consuming habits have gone up since P2P; I buy the tv-series I watch (if or when they ever are released where I live) and buy the movies I enjoyed watching. Actually I just bought a book too, on which a movie was based.
Wait, what?
I'm actually a writer myself, if I were to lay claim to any sort of artistic talent. I'd love to be able to quit my soul-destroying day job at a big media mega-corp, but I'm hampered by that whole, "Having to support my family" thing.
Assuming I ever hit the big time with my writing (unlikely) I'd like to be able to profit off of it. I'd like to be able to control the distribution to such an extent that some internet fucktard couldn't copy the whole thing to his website and use it to drive traffic.
And that desire, that dream of artistic self-sufficiency, makes me a bad person?
Okay. How about people for whom writing is their living? Journalists, novelists, etc. That's their skill, their entire source of income. You think that they should have to go out and find a day job, just so they can slave away at night to produce works that you can consume, free of charge?
Dude, fuck you. If that same person cooked you a meal, or fixed your car, or did your taxes, you wouldn't think twice about giving them their due, but because it's an ephemeral piece of IP, you think that labor is worthless?
ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
Nesson's assertion is that the four points described in Title 17 are descriptive, not prescriptive, and that Fair Use is a broader and deeper concept arising from common law.
Well the "traditional" four points, as I put it, are just that - they are the aspects of fair use that are typically taken into account, but IIRC, there are cases that explicitly state that those four factors are not exhaustive, so he may have a point.
Are there? Do you have any citations? (Ideally stuff that is available on-line). I'd like to read some, especially any that post-date the codification of the four points in Title 17.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
How much of this content is being domestically produced?
My own experience bears this out. I have been using P2P for many years, and have always found it exceedingly fair.
Well, first of all, the statutory language of the fair use provisions in 17 USC Sec. 107 is clear that the four points are not exhaustive. It says:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
And then goes on to list the four factors. The "shall include" is the important bit there.
Also, there was a House Report (HR 94-1476, p. 66) on this legislation (the fair use bit was codified in the 1976 Act) that also supports the idea that the list is illustrative, not exhaustive.
The language of later decisions respects the illustrative nature of the list; e.g., in Harper & Row v. Nation (471 U.S. 539), which was decided in 1985, O'Connor describes the four factors as those "identified by Congress as especially relevant in determining whether the use was fair", thereby implying that if there was some other compelling thing to consider, a court would be free to do that.
One last thing - re: the fourth factor, people seem to think that empirical evidence about the effect of file-sharing on sales will help. They're probably wrong, though. The fourth factor is probably the most dominant one in most analyses, and it's been extended so much - even in the Harper opinion, you'll see the bit about "to negate fair use one need only show that if the challenged use 'should become widespread, it would adversely affect the potential market for the copyrighted work.'" I find it really unlikely that a court will buy the argument that people swapping songs may increase sales in the long run, even if it's true. More likely they will simply say, "Each file shared is an instance where a work could have been sold, so the effect of sharing on the potential market is negative, case closed."
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
Copyright is not forced on you. You have the right to opt-out of copyright. You can go creative commons. You can declare that your work is public domain.
I don't know how I can opt out of copyright. The moment I try, I'll probably get hit with a lawsuit alleging subconscious plagiarism, like what happened to George Harrison.
musicians *choose* whether or not they want their work under copyright.
But I can't *choose* not to have access to the thousands of non-free works played by my employer, by grocery stores, etc.
Some Joe would not think about claiming a popular song as their own (without a legitimate reason).
But how can I avoid inadvertently claiming a popular song as my own? What should George Harrison have done to avoid copying Ronald Mack's "He's So Fine" into Harrison's "My Sweet Lord"?
Why then do individuals lose ownership of intellectual property after a period of time?
Ignoring for a moment the constitutional requirement of "limited Times" that the U.S. Supreme Court appears to have chosen to disregard in Eldred v. Ashcroft:
Unlike real estate, copyright has restrictions on derivative works. If the term of copyright were perpetual, once a sufficiently large number of works have been published, every possible work would become substantially similar to something that has been copyrighted, even if only by accident, and no new works would be allowed to be published. Spider Robinson explored this issue in his short story "Melancholy Elephants".
While I freely admit that this is way out of left field, this isn't as far fetched as it may seem.
May I present for your enjoyment: The Betamax decision. It is the decision that allowed us to own a VCR, and it hinged on whether making a recording of live tv for personal use was "fair use".
Let's put it up agains those 4 rules:
1. Amount of work used: fail. Users recorded the whole program.
2. Impact on sales: fail. A strong argument exists that it reduces demand for sales of that video to people who may have already recorded it.
3. Transformative: Fail. Total fail.
4. Type of work: Fail. TV programs aren't dictionaries or encyclopedeas. Most TV programs are fictional dramas.
So, under the four rules, there is no way recording live tv could be fair use. But the court decided that it was. So personal use recording was called fair use, the VCR was allowed, the copyright owners lost. Incedentally, it meant that the VCR became widespread, and the copyright owners made squillions selling videos, but that's beside the point (or highly relevant!)
So, a court deciding against all 'reason' that what everybody does is fair has a precedent - so his suggestion is not as strange as it may seem!
Prediction for end of Universe #42: Fencepost error in Quantum_bogosort.cpp
I like your argument about musicians not doing it for the money, I think that myself. However, there is a part I don't understand exactly... even if it is not aiding you, how is exactly copyright hindering you to distribute your work for free using means like p2p?
Is it possible our sense of what is 'real' or 'fair' has been pushed so far to the 'right' by the outrageous tactics of the RIAA and idea of creation of "Intellectual/Virtual" Property, that we are perhaps buying into some idea of "fairness" as defined in an unreasonable system?
I.e. -- It's generally human to try to be reasonable (in a non emotional/non rant state). A tactic of Republicans during Clinton's term was to present such outrageous demands, that in order to seem "moderate", he had to stand to the right of the line that would conventionally divide Republicans from Democrats.
In a similar way, if the media companies present some outrageous version of reality that what is imaginary
or that which is 'thought' is now something that can be protected, then bought and sold -- that thoughts can be bought and sold, but they package it artfully enough, they might get people to buy into their version of reality and start creating a legal system to defend it. We might start thinking along the lines about what is fair and not fair within that 'created' system -- without seriously or critically thinking about the validity, or, invalidity, of the system created.
When a system starts needing such strong laws to protect it and massive threats of retaliation far out of proportion to the damage done or any sense of 'justice', one needs to look at why such harsh penalties are necessary to engender 'law abiding' behavior in a 'just and fair' society/system. Such outrageous penalties may be put in place out of fear of losing control -- because someone is trying to "legislate" something that is being artificially applied to society that goes contrary to human nature or contary to what is considered "innately" fair in that society.
It could easily be these problems arise because the new, 'created', 'imposed' is being seen as 'unfair' or not just by a significant percent of the population -- it's being forced upon the masses by those who can manipulate the media and legal system so that the average citizen unquestioningly accepts the premise and starts reasoning about 'fairness' within the newly created framework.
Perhaps someone with more advanced insight into the law and social-shaping by creating new "crimes" for new "virtual property" might have a view worth listening to?
I've bought and enjoyed your album. Thanks!
How about we start using a new licence: If you distrubute my work, I am entitled to 33% of your profit. Forever. If you distribute my work for free, I am therefore entitled to 0$. Do you guys think this could work?
Big media doesn't just distribute, distribution is in fact very easy. The hard business is marketing, which is the main service record companies provide. Copyright isn't stopping artists from sharing their works online or through independent internet/radio stations - the demand just isn't there.
A good example of what big media does is American Idol. They grab a bunch of mediocre, but marketable singers, have them sing unoriginal music, and use marketing to prepackage an instant hit.
Imagine some record company hears your music, decides to take it, have it sung by 4 hot chicks, puts them on tour, and maybe get a reality show. Without copyright the original artist would get nothing from the deal, while the record company rakes in the cash. At least with copyright, you the artist, have the choice to sell-out and make money or let your art remain in obscurity.
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File sharing is legal.
Obtaining material without authorization is illegal.
Please let's not confuse these two.
Maybe the client is of the opinion that he's screwed already (once bankrupt, does the scale of the debt matter?), so no longer has anything to lose - and hence is quite willing to take a really long shot that he hopes will also inflict maximum damage on the opposition.
In battle, a man who has accepted the inevitability of his death can be far more dangerous an adversary than the one who is still believes he may live, and is therefore hamstrung by fear.
how do video games work as a service industry?
And why do we have to completely redesign the way games are played because people are too tight assed to pay for your entertainment?
DRM-free indie games for the PC and Mac: Positech Games
It is economically reasonable for an artist to expect the opportunity to make a profit, such that they will invest in the creation of a new product.
The guarantee of profit is not needed to encourage professional creativity. The artist merely needs to think they have a good chance at profit.
The balance of copyright is one of optimization. It should try to create the greatest volume of "art" while making it accessible to the public as quickly as possible. If most Hollywood films net 95% of their profits in the first 5 years (just throwing out numbers as an example), slashing copyright protections to 10 years won't significantly impact the level of investment in new films.
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Yes - it's bad if you are the creator, and it's bad if you're the public because creators aren't going to keep making stuff if they can't make a living.
Actually, I'm surprised that you'd question if any of this was bad - most pirates at least hold to the standard that some third party can't just take your work and earn a profit from it without paying you - that's earning a profit from the work of other people. If you accept that kind of practice, you're giving parasitic business models an advantage over businesses that create something. Is it really a good thing for our economy to reward people who act as parasites on the system, rather than being creators?
The only situation where this thing wouldn't be a problem is in a utopia, the perfect society. :)
But since we don't live in one, I'll go with the closemouthed lawyer for now
(I'm not that AC)
This is the sig that says NI (again)
With current technology, software is still somewhere in between physical goods and services. While there are increasingly more service type applications, treating software purely as a service doesn't work in many cases, especially in the business world.
For example, if a company wants productivity software to improve their shipping/receiving - they would need to contract a software company, or develop in-house. You can bet the code will be locked down in NDAs and other legal trappings. So another company with similar business processes would end up having to develop their own software separately.
This scenario is less efficient than a software company producing and licensing software to both businesses.
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how do video games work as a service industry?
And why do we have to completely redesign the way games are played because people are too tight assed to pay for your entertainment?
Not that I advocate this solution, but we could do it the way they did in "olden times" where a rich benefactor commissioned a painting\poem\other artistic work and was then free to do what he wanted with the finished product. In modern times that would probably translate to a group of people getting together and hiring programmers to code a game for them; if they've paid for it, why shouldn't they be able to give it away? /devils advocate
If I have nothing to hide, you have no reason to search me
A website [diepresse.com] explaining the law (in german only, sorry, try a translator).
I was wrong though, it is based on the right to own a private copy (regardless of the source), not "Fair Use".
1. The article is about Austrian law, not German law.
2. According to the article, downloading a copy that is exclusively made for private use is legal.
3. The music industry doesn't agree with this, but the law does.
4. File sharing (downloading + allowing others to download) _is_ illegal.
5. It may make a difference if you _know_ that the source is illegal.
About the last point: I have seen software advertised like "pay $29 for this software, and you can download millions of songs for free". A person could reasonably assume that they are paying $29 for the right to download millions of songs, and that after paying the $29 the download is legal. Now we all know it isn't legal, but in Austrian law it might make a difference what you _know_. So downloading from a website that says "steal these songs, payback time for the RIAA", that would be illegal. Downloading from a website saying "Download all these free songs, completely legal", even though this is a lie, would be legal (in Austrian law).
Nonsense. I only ever download between 64kB and 4MB of any film at a time.
how do video games work as a service industry?
A monthly fee, like MMO games.
And why do we have to completely redesign the way games are played because people are too tight assed to pay for your entertainment?
You answered your own question, people are too tight arsed to pay for their entertainment, so the industry has to find another way.
Blaming the customer doesnt work in the long run.
Why not have an industry body contract out and pay for the software their niche industry needs.
If the costs can be spread far enough, then its not worth the overhead of managing it as a "Commerical product", just let it free and trust the comunity to maintain it.
Maybe the client is of the opinion that he's screwed already (once bankrupt, does the scale of the debt matter?), so no longer has anything to lose - and hence is quite willing to take a really long shot that he hopes will also inflict maximum damage on the opposition. In battle, a man who has accepted the inevitability of his death can be far more dangerous an adversary than the one who is still believes he may live, and is therefore hamstrung by fear.
So you're of the view that Joel Tenenbaum instructed his attorneys that he would prefer to lose the case, in order to make a statement?
Ray Beckerman +5 Insightful
Fair use is not a defense. Fair use is a sample of those things which copyright was never meant to stop.
In copyright law, fair use is considered a defense.
Ray Beckerman +5 Insightful
Yeah, try that one in court and see how far it gets you :-)
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
I have a question about this that you may be able to shed some light on. Does the educational allowance of Fair Use include cultural education?
Let's say that I'm by the watercooler and some coworkers are discussing the new singer, show or movie, and I'm completely out of the loop, never having experienced the work in question. Can I download said song, episode or movie in order to educate myself on the cultural phenomenon and be able to participate in popular culture properly?
Title 17 Section 107 seems to imply (to me, a layman) that such a use WOULD be covered under Fair Use, but I don't have lawyer eyes that can read between lines. :-D
Any thoughts would be appreciated.
Nothing I say on Slashdot, or anywhere else on the internet, should be construed as legal advice; for that you need to consult with a lawyer with whom you have a one-on-one relationship.
Ray Beckerman +5 Insightful
If you buy some copyright work, you are essentially saying "having your product is worth more than the money I'm spending for it".
Obviously, but that wasn't the point. Just as with all other subsidies, the over-production and expense to society are both relative to the situation which would exist without the artificial restrictions, not the case where consumers choose to go without entirely.
To pick an obvious example, if a law were passed which made it illegal to acquire water from unauthorized distributors, most people would pay whatever these authorized distributors charged, as the alternative is death. The water is clearly worth whatever they are willing to pay for it. The exclusivity is also an clear incentive to the distributors to produce drinking water, and to promote an increase in its use, since supplying it has suddenly become much more profitable. However, the law does not (and cannot) create wealth out of nothing; the extra profit made by the distributors is no greater than the loss endured by everyone else in the form of higher prices, even when one ignores the inestimable value of the freedoms the law curtails.
The same is true of copyright. In the absence of copyright creators have to find ways to get paid for their actual labor, or for the service of publishing the results; they can't release something to the public at large and expect to retain a monopoly on its distribution. (This is clearly not the same as "forcing creators to act like charities." If they choose to work for free, knowingly or under irrational expectations, that is entirely their own fault.) With copyright, non-aggressive actions of the public--duplication and distribution--are curtailed by law. Naturally, this gives creators a far better bargaining position than they otherwise would have. The benefit and incentive this group receives in the form of banished competition and higher prices is no greater than the losses suffered by buyers due to the same increase in price--again, ignoring the inestimable value of the freedoms the law infringes upon.
Simply put, whenever the law intervenes to favor the bargaining power of one party or another--even if the bargain still takes place, demonstrating that both sides benefit somewhat from the exchange--the benefit to the favored party can never be greater than the loss to the disfavored one. Furthermore, the intervention itself is an infringement upon the freedom of the disfavored party, with an unmeasurable but substantial cost of its own.
"The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
you shouldn't have to read between the lines... furthermore if one is required to in order to understand any law they should no longer be held accountable for violating such a law.
to retort, if a layman cannot understand a rule they should not be held liable for violations of said rule.
so, if the law said simply: that individuals don't have the right to make 'any' copies of materials they didn't originally make without permission, or the right to aid others in experiencing or acquiring said illegal copies--whether it is known to them that they are illegal copies or not. then fair use would no longer exist, and file sharing and public displays of copied materials would be illegal.
however, the law does not say this.
personally, i think the whole ideas of piracy and copyright need to be redefined to disregard 'free use', and by that i mean any use that doesn't cause the user to profit. so as long as you're playing cam copies of movies in you garage for free for neighborhood kids, you cannot be sued or charged with a crime; and as long as you're not producing CD's or selling AVI's online for profit you cannot be sued or charged with a crime.
how someone could be charge with a crime for giving something away for free is beyond me. albeit i understand copyrights were put in place to protect an inventors right to profit from their invention... but wasn't it really to keep other people from profiting off their ideas, not to keep individuals from using those designs for themselves.
can't i go online and snag a copyright for a folding table, make it at home and use it, without being sued for copyright infringement. and what happens when i get a table from IKEA and give the table i made to my neighbor... am i a pirate for distributing copyrighted materials for free? could i go to jail or be sued yet again?
wouldn't that lawsuit be considered not only unfair, but blatantly stupid, and thrown out of court?
i see no difference between the table and an MP3 file.
if you look at the the whole situation as simply as you can it's ridiculous. and the solution is obvious. simply rewrite the laws to allow for 'free use' and 'sharing'. these things don't hurt anyone!! we're all taught they're good things our entire life!
i know i wont be teaching my children not to share for fear of punishment by selfish men, and neither should you.
DON'T CAPITALIZE! CO-OPERATE! AND FREE EVERYTHING!
Heh, sorry about that. I withdraw my question.
Not that it matters, but just to clear the air, my example was 100% hypothetical, as there isn't even a water cooler in my place of business (my home). :-D
I understand your position though, and apologize for the slip up.
I knew you weren't asking it from your own perspective, but someone else out there might read the answer and be guided by it. I'm not comfortable with that, unless I know the person to whom I am speaking, for a number of reasons, including (a) I need to know who they are and where they're coming from, (b) usually I need to ask some followup questions to get the complete fact pattern, (c) the internet knows no geographical bounds, but my law license does, and (d) the RIAA lawyers pray for me to do something that could get me in trouble (since I am a model of probity, and a very conservative lawyer, their prayers will never be answered). Maybe that's the "country" in "NewYorkCountryLawyer"; that I need the face to face, or at least voice to voice.
Ray Beckerman +5 Insightful
"That idea leads you to a very bad place. "
Actually it leads you to a bad place. I have no problem recognizing the mistake of mislabeling the results of a service as an object. Where you suggest that "Walmart can make their own copies of music and sell it", I say Walmart can pay an artist to create new work which they can then sell. The act of creation does no imply ownership, but authenticity has value. Anyone could re-make a song (it happens all the time) but the original author oft does a better job of playing it.
There's actual freedom from lack of copyright. Think of all the amazing works that will never be created because the perfect song, image, text was held back from use by laws.
Your assumption is that the current system where people are paid through middlemen after the fact is the best system. Drop the publishers and now you have direct access to audiences who are still willing to pay for things they like. It was a requirement in the past for distribution but with functionally infinite replication and near ubiquitous distribution for digital information the only missing piece is marketing.
Pay me to write and I wont need everyone to pay to read.
Pay me to sing and I wont need everyone to pay to hear me.
Pay me to code and I wont need everyone to pay to use my program.
Trust me when I tell you that artists actually want the masses to get their messages, and that while money is nice few artist get rich. Pay up front for the new song/book/application and it's called patronage.
cool.
Design by committee, combined with rich people choosing what games get made.
Sounds awesome!
DRM-free indie games for the PC and Mac: Positech Games
Thanks for the detailed response.
I find it really unlikely that a court will buy the argument that people swapping songs may increase sales in the long run, even if it's true. More likely they will simply say, "Each file shared is an instance where a work could have been sold, so the effect of sharing on the potential market is negative, case closed."
That seems likely to me as well. It's very difficult to get courts to entertain sweeping alternative views. Generally, that's a good thing, but sometimes it leads to unfortunately closed-minded opinions.
In this case, I think it's pretty clear that file sharing will eventually destroy the market for music sales, even though in the short term it boosts sales. I don't think file sharing will destroy the market for MUSIC, in fact I think that the richness of the musical world will explode and that there will be far more musicians making a living from exercising their talents, but the business model will be entirely different. I don't see any way a judge can take the leap to say that it's okay to gut the law that supports an existing market process just because there's probably a new model out there, not yet well-defined, that will accomplish the unstated goals behind the law even better.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
P2P file sharing is not Fair Use. It is First Amendment protected Free Speech. All data is speech. All speech is Free.
The Internet is the world's global conversation, and ones are zeros are the words. We need to defend our speech from the "intellectual property" zealots, the thought police, before they destroy all Freedom.
All data is speech. All speech is Free.
No, others have said something about making P2P illegal because it's used for copyright infringement. However there are perfectly legal uses for file sharing and P2P.
Falcon
Should there be a Law?
"Copyright is not forced on you. You have the right to opt-out of copyright. You can go creative commons. You can declare that your work is public domain. There are even some publishers trying to make this system work (i.e. the musicians give-away their music for free; you can pay if you want, companies cannot use it for free - which is a creative commons licence). You can't use "musicians would be helped with no copyright" as an argument against copyright - because musicians *choose* whether or not they want their work under copyright."
You missed my point entirely. Copyright IS forced on business. A DJ can not play someone's music without obtaining royalties or permission. It's not that I'm prevented from sharing my music, and of course I can waive my rights to copy protection. The point is that in a world without copyright businesses (radio stations, DJs, music sharing web-sites etc.) would not have to jump through all of the red tape, which adds to the costs of production tremendously, and the artists trying to figure out how to earn a living doing what they love would be aided, not hindered.
With regards to musicians defending copyright. I think you also just skimmed my post there too. I never said that artists by and large DON'T defend copyright. My point was that usually they think that they can't make money in music unless they have copyright. This is simply false. If you really look at the big picture, and imagine a world without copyright, then the world might work a lot differently, but it wouldn't hurt artists at all. It would help them. They would earn a name for themselves much more easily and then business prospects would open up for them (selling directly to the consumer, having more people come to shows etc.)
With regards to software, you're also looking things through the lens of a world that has copyright. If copyright never existed to begin with then software would have evolved much differently. I think it would have started out how IBM was looking at it in the 80's (ie: "the value is in the hardware"). But obviously the software plays an enormous role in the usability of devices. So companies would have continued to invest in software but they would have adopted different business models. The world would be different for sure, but that's not to say that it would be worse. OSS would have still evolved, companies would still guard their source code as trade secrets, they would continue to act as companies, defending against sharing as much as possible, but the government would be powerless to put 17 year-old kids in jail for sharing video games with his friends. Companies would probably adopt subscription models. In fact, lots of the "good" things that companies are starting to do now, that they realize that the law isn't helping them as much as they hoped it would, would have been done a lot sooner and all of this capital that could have been invested in production that fills people's needs would not have been wasted in litigation and lobbying (well, they'd probably still lobby for legislation but arguably not as much).
You missed my point entirely.
I did not say that artists would not be able to make a living, or that they shouldn't be able. What I'm arguing is that copyright actually makes it much harder for you to make a living creating.
Think of things from the fan's perspective for a moment. I'm sure this will be easy given that everyone has other artist's who's creations they consume. Would you rather download a few of their albums on bit torrent sites or would you rather get a packaged CD with cover art, a personalized autograph, a t-shirt and be entered into contests that could get you free tickets to their shows ?
As a creator, the artist will always have more credibility among the fans than the distributors. And as the producer, the artist will always have the competitive advantage when it comes to the fans. But the artist can not get fans without distributors. Copyright aids a certain cartel of distributors, it keeps other distributors out of the market, and it never helps the artists financially.
"Assuming I ever hit the big time with my writing (unlikely) I'd like to be able to profit off of it. I'd like to be able to control the distribution to such an extent that some internet fucktard couldn't copy the whole thing to his website and use it to drive traffic."
If you want to take control of the distribution aspect of the business then you just gave yourself that "day job" that you didn't want to begin with! :)
The law of the division of labour says that you would be shooting yourself in the foot if you did this. As a song writer you are efficient at writing songs. As distributors, the various companies who distribute music are efficient at distributing. If you concentrate on writing and they concentrate on distribution then more writing and distribution will take place. You will write more songs, and better songs. They will distribute more efficiently, because of added competition in the market.
My argument is that copyright impedes the distribution of your work, which impedes your ability to write songs. New distributors are kept out of the market and existing distributors (who have managed to use copyright as a tool to secure their share of the market) have direct say over which artists they distribute and which they don't. So you actually need those distributors to give you permission to "hit the big time". Rather than the market (the fans) deciding which musicians they want to hear more of.
The market is democratic in the sense that it's the ultimate vote. When you spend money on a product you are endorsing it. A musician who doesn't appeal to people will never be able to earn a living anyway, and musicians who do appeal have to go through a cartel of big businesses who have a vested interest in keeping competition out of their market. The Internet has weakened their position, but copyright still doesn't help artists.
As an artist, the only way that you earn a living is with fans. You can not get fans without exposure. You can not get exposure in a world of copyright without either diverting production from song-writing in order to labour inefficiently as a distributor / promoter (ie: distribute yourself by spending days and weeks promoting your stuff on the Internet), or convincing one of the big members of the cartel of distributors to distribute your work, signing over your rights to copy protection in the process.
So you're deluding yourself on three points. 1) that it's easier to "make it big" with copyright rather than in a world without copyright 2) that if you did "make it big" you could take control over distribution without shooting yourself in the foot and 3) that without copyright you would not be able to earn any money as a musician.
To elaborate on the 3rd point more (which is where I think you're coming from the most, by thinking that if someone downloads your albums that they won't ever give you money), if a music lover is able to get more music for free, he/she will buy more music (if you don't believe this th
I typed out a reply to one of the other comments in response to my post. I think it answers your question:
http://slashdot.org/comments.pl?sid=1186039&cid=27457775
The real issue is that song-writers are not distributors or promoters. I've spent weeks at a time trying to promote my music and it's really hard work. That's time that I could have spent producing. So there isn't anything preventing me from distributing on the Internet, the point is that copyright prevents new distributors from entering the market. It forces companies that are really efficient at promoting and distributing to cut through red tape. If companies did not have to bother with copyright they would distribute and give the artists more exposure. It's true that the artists would not earn royalties or have any say over this, lots of artists are not comfortable with that idea, but they would gain many more fans without having do anything, and their ability to earn money producing would be enhanced, not hindered.
Yes, that has been stated, but it has nothing to do with what I am talking about. I am talking about this article, and it does not have anything to do with the legality of P2P networks themselves.
The defendant is accused of copyright infringement by the RIAA. His lawyer's defensive strategy is to claim that putting copyrighted material on a P2P network constitutes as 'Fair Use' of the copyrighted works in question, and therefore his client is innocent of copyright infringement.
It has absolutely nothing to do with the legality of P2P networks or technology itself. That is not being brought into question at all.
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i'm a professional classical pianist and composer. i've just got back from a course with some other very capable musicians. one in particular is a much better composer than myself, and it's a pleasure to spend time with him and hear some of his insights into music. he would find it nigh on impossible to get his music published, because he chooses to write in a style which is currently unfashionable. no company would be interested in distributing his music. maybe for him the p2p network is the way to go. it's the only chance he has to give people his music, because he sure as hell couldn't afford to distribute it himself.