By using some sort of competitive process to compare the patent applications for each slot against each other, you could weed out most of the bad patents. My favorite "competitive process" would be an auction setup - you allow anyone to submit a patent applications for a particular open slot, then you allow everyone else to bid on being able to own the patent rights for any of those applications. The application with the highest bid becomes a valid patent.
I assume that you mean "becomes a valid patent" after going through prosection, right? The problem becomes that the patent application, even if it got the highest bid, might not be all that great if, during prosecution, it had to be amended to the point where it became very limited in scope. Or worse, didn't issue at all because of prior art. What then?
If you hold the auction after prosecution, well, who is going to go through the time and expense if they only have one chance in 5, or 10, or 1000, or getting the patent issued, even after going though all of the prosecution hurdles.
Finally, as has been noted in other posts at other times, the value of a patent is not always apparent at the time the patent is filed.
1) Make the bar of being granted a patent much higher. The applicant should have to demonstrate significant effort to make the invention. It should take far more effort to invent something than to patent the results.
But what if you have something easy to make, but very, very innovative? And how do you determine how much effort went in to the innovation? I'm not saying this is an unworkable idea, just that there has to be more than this -- the patent system is designed to reward innovation, not just hard work.
2) For each patent, give adequate notice to the public to give them a chance to protest the patent. Hold as many hearings as necessary before the patent is granted.
Something along that line is coming if the patent reform act passes and gets signed into law.
3) Require a demonstration of the patent if there is any doubt over whether or not the applicant has ever actually built one.
This is a tricky piece, in my opinion. The patent system is designed to reward innovation, like I noted above, not hard work. You could come up with an innovative idea that might be very, very hard to implement, and might take years, or decades, to actually implement. If we wait until you actually build it, it could be a long time -- whereas granting the patent on the innovation puts the knowledge into the public domain so that others can build upon it.
Like 1) above, it's hard to separate out the innovation from the hard work.
4) Make patents non-exclusive. Any inventor should be able to use, sell, and market his own inventions, even if someone invented the same thing first. If he went to substantial effort to invent the item with no knowledge of products containing the same invention or of the patent, either permit him his own patent or add him to the previously existing patent. Reserve licensing of the patent to other parties for the first inventor only.
Kinda defeats the purpose of a patent. This is what copyright law is for -- you can protect against copying, but not independent discovery. But that's also why it is far, far easier to obtain a copyright than a patent, because the scope of protection is far more limited. If you are going to make patents non-exclusive, then the patent process should be made very, very easy. It makes no sense to have a tough approval process for a patent that has no real ability to be enforced in any meaningful way.
5) Before a patent lawsuit may be initiated, require the patentee to notify the infringer and give him adequate notice of his patents and ample opportunity to stop using the invention. Enable the infringer the ability to request a hearing over the question of whether or not the patent was rightfully granted.
This is already the de facto rule -- the damages clock doesn't start ticking until the alleged infringer is put on notice by the patent holder that they might be infringing. If you file suit, and the alleged infringer stops his activities immediately, there are no damages to collect.
The only exception is marking -- if you sell a product, and you mark the product with your patent number, then you get a presumption of notice.
Of course, there is always the injunction, which doesn't require starting the damages clock -- but injunctions are much harder to get these days than they used to be.
6) Permit the patent owner to recover damages only from willing infringers. That would be someone who either knew about the patent before using it or who continued to use it more than a year after being given notice of his infringement.
See above -- you can only collect damages once the alleged infringer has been put on notice, or if you mark your products to make it known that you have obtained a patent (and, presumably, intend to enforce it).
Why should there be a year grace period?
7) Base the damages awarded on the greater value of the invention to the patent owner and to the infringer. That is, if the patent owner and the i
That's part of patent law I've never understood. I've been told by people (who have patents) that it is in their best interest to *NOT* do a patent search before applying for a patent, since that search could be used against them later, to prove willful infringement, which carries a stiffer penalty (I guess) than mere incidental infringement.
Other posters have presented a number of reasons why an inventor might not do a search. Here's another one.
If you search for prior art, you are obligated by law to disclose the art that you do find. Now, not all art is created equal, and the law only requires you to disclose "material" art that is not "cumulative." So, let's say you find some art that is maybe relevant to your patent.
What happens if you don't disclose it? Well, if you ever try and enforce your patent, the other side is for sure going to get a hold of all of your notes in discovery, and if they find evidence that you knew about a particular piece of art, and didn't disclose it to the USPTO, then they will try and prove "inequitable conduct" and get the patent declared unenforceable. Now, maybe the art is sketchy, and you will be able to prove up the fact that the ommission was reasonable because the art was either not more material than art already in front of the examiner, or that it was merely cumulative to art that was already in front of the examiner -- but this is something for a jury to decide, maybe not a risk you want to take.
But what happens if you do disclose this art, that may or may not be relevant? Best case, nothing. The examiner ignores it, and it gets noted as a piece of art cited by the applicant. But what could (and sometimes does) happen is that the examiner decides that the art is more relevant than it objectively is, and makes rejections based on this art. If the art is really sketchy, then you should be able to traverse or amend around these objections -- but every time you amend, or traverse a rejection, you are creating a paper trail (prosecution history estoppel) that can be used against you in a later court action to narrow the scope of the patent.
Of course, if the art is good, then yeah, you should have to explain why you are entitled to the patent. The problem is, sometimes examiners, who are overworked and have little time to spend on any particular application, make rejections based on art that are just ridiculous -- and even if you can work your way around the rejections, you have now limited the scope of your patent's claims if you ever end up trying to enforce the patent in court.
So, if you do a search, and you find art that is maybe kosher, maybe not, you end up with a Hobson's choice -- decide not to disclose, and face having to try and overcome an inequitable conduct claim later on, or disclose, and face having your patent scope narrowed during prosecution.
That's a reason why patent attorneys often counsel their clients NOT to do a search. If you haven't looked, you can't be held responsible for knowing about something and not disclosing it.
NOTE: I am not saying that this is the best way to do things, just that, under the current system, this is why an attorney might advise a client not to search. Also, it's not like relevant art that was not disclosed, and not found by the examiner, can't be used to invalidate a patent during litigation -- a defendant in a patent litigation suit has far more resources, and far more incentive, to scour the globe to find real, honest-to-goodness invalidating art...
Everybody is required to listen and see force fed ads everywhere they go. I'd be perfectly happy not knowing all the great songs and movies I miss. How could I pirate something I don't know about?
I see Ferraris sometimes on my commute to work. Doesn't mean I can afford one, doesn't mean I am entitled to one, doesn't mean I should go steal one if I can't afford it.
Just because you hear a song or see a movie doesn't mean you are entitled to it. You may really want it, but you are in no way entitled to it.
You have a number of well thought-out and articulate points. I don't agree with them, but that's a different issue.
But this:
If not, people will find another way to get it if the consumer deems effort required less burdensome than the price asked.
Is just flat wrong. It may reflect the current reality, but it's not right, not ethically nor legally. As others have noted, if the price is too high, you just don't buy it. That's the choice -- pay the price, or don't get the work. If the creator is charging too much, well, that's his or her right -- you are not obligated to buy. You, as the buyer, are not obligated to ensure that the creator makes money from his or her creation.
But using "the price is too high" as an excuse to pirate, or steal, the work is just that -- an excuse to try and make yourself feel better about taking something from somebody. You don't have a right to the creator's work -- you either buy it at the price the creator sets, or you go without.
I don't know where this whole entitlement mindset comes from.
So what? If it's too expensive, don't buy it. You DO NOT have a right to the music. If you think its overpriced, don't buy it.
Meanwhile the label gets millions of dollars, and for what? Pressing some CDs? A little advertising? They're making BOATLOADS of cash for doing practically nothing.
So what? They've got a business model that works. Bands are doing everything they can to sign with the record labels. The bands are forced into this at gunpoint -- they voluntarily sign (admittedly one-sided) contracts. If you are going to blame anyone, blame the bands. Or the people who buy the CD's.
Every day they make it more and more clear that they consider it their right to have everyone paying them, even people who don't and never will listen to their music.
Just because they won't sell CD's or MP3's at a price YOU want to pay does NOT mean that the RIAA thinks it is entitled to make a profit.
But it's becoming pretty clear that the current business model for selling things that can be easily copied is not working.
Why isn't it working? Are the record labels going under?
Oh, you mean it isn't working for you.
Calling everything "theft" and "piracy" is not going to solve anything.
Well, taking stuff without paying for it isn't going to solve anything either.
People need to start thinking about new ways to deliver content that is acceptable to both the creator and the consumer.
Why? Seems like a lot of people are making a lot of money the way things are today.
Maybe people need to start looking at ways to do the same things with a lower budget. Maybe actors don't really need anywhere from one to fifteen million dollars to star in one movie that takes about a year to film.
What gives you, or anyone, the right to determine how much an actor should get paid, or what budget someone should spend on a CD or movie?
There's a lot of people in the US that work a lot harder than any actor or anybody at the RIAA and for a hell of a lot less money.
There's a lot of people that work a lot harder than any athlete. Or any singer. Or any CEO. Or any doctor or lawyer or software engineer. Do you think the Google founders work any harder, than say, someone laying asphalt in Phoenix in the summer? Or someone picking crops?
We don't pay people based on their labor -- if we did, laborers would be the most highly paid people in the U.S., actors and atheletes would be at the bottom. We pay people based on the value they bring to a particular enterprise. The reason Brad Pitt makes $15 million or whatever per movie is because 100 million people will pay $10 or whatever to see Brad Pitt. I doubt there are 100 million people willing to pay $10 to see anonymous coward act -- but that's why Pitt makes $15 million and you, presumably, don't.
If you have a shitty product, no one is going to buy it. Should we be also legally guarantee that if someone makes something, they will get revenue from it, even if it sucks?
Of course not. But shouldn't the creator of the product be free to sell their product for any price they want? If I create a CD, should I be required to sell it at a price that people can afford, or can I price it at $10,000,000 per copy? Nobody is required to buy a CD, or a movie, or a piece of software, so why shouldn't someone be able to charge whatever they want for it?
But let's apply this to a well-known set of intarwebs content creators: Gabe and Tycho of Penny-Arcade. They're on record (as a matter of fact in writing at the back of their first hardcopy collection, of which there are 3 so far, and I've bought all 3 because of the added value in buying them at a decent price) as saying that hiding your content from your users because you're afraid they'll take it is kinda silly (which I tend to agree with, and why I think the subscription based Modern Tales group goes about the whole thing the wrong way - and why I think PVP's add-on animated subscription featurettes are a great idea; you get the meat for free, and if you want the dessert you shell out a little cash for it). PA was once in dire straits due to the ad network collapses and the loss of revenue thereof. They didn't have the financial resources to go down the failing route of the RIAA and MPAA, instead they adapted and are thriving to this day. None of their strips require you to pay for them, and there's no silly DRM preventing you from doing Save-As on a strip. Even so, people pay cold hard cash to get their books and their merchandise. Why? Cuz they know how to make what their target audience wants and what price their audience will shell out for extra stuffs.
Great -- but that's their decision to let the stuff go free.
Besides, it's a pretty big stretch to go from Penny Arcade to LOTR. Not every business model is completely scalable.
No, I don't think you are getting it. Even if a product is worth having, if it is priced beyond what the market will bear people will not buy it and will continue to find a way to obtain it otherwise. Digital items cost what to produce? Next to nothing yet producers try to garner hundreds and thousands of dollars for a digital copy of something that costs nothing to manufacture. Yes, development does cost money, but if the end result is crap it is still worth nothing. The market will pay what the market will pay and there is no way you can convince me that a piece of plastic that they can reproduce at will for pennies is worth what they want you to pay for it.
As noted elsewhere, this is besides the point. The cost to produce is irrelevant. You do not have a right to dictate to the seller what price he or she can ask for his or her goods. The seller sets the price, you either take it or leave it. It doesn't matter what the cost of production is, or fixed costs, or sunk costs, none of that matters. The seller can choose to sell their goods at any price they want, and the buyer is free to buy, or not buy, or negotiate.
But the buyer is not free to dictate to the seller the price.
Now, costs and all that are relevant if the seller wants to maximize sales, etc. -- and they may factor in to what the buyer thinks is a fair price for the product. But none of that has any impact on the actual sales price. That's set by the seller. If the sales price is set too high, then there will be few buyers. Or no buyers.
But the price being too high in no way implies a right on the part of the seller to obtain the goods through illegal means. If the price is too high, the choice is for the buyer to go without. If the seller wants to sell, the seller can lower the price until people want to buy -- that's the way the market works -- but the seller is in no way obligated reduce the price. The seller could choose to simply not sell.
This isn't about guaranteeing a specific profit (or any profit) for the seller -- it is, however, giving the seller the right to sell his property for what he feels is the right price to him. Whether anyone buys or not is a different story entirely.
Yes people queue up in torrents for SPECIFIC titles and I am willing to bet those real title sales aren't hurting much either.
But they ARE hurting, at least to some extent. Who gave the people queueing on a torrent the right to decide how much money the copyright holder is entitled to make?
I won't even go into how many former pirates routinely purchase things today now that they are older and more financially capable of making those purchases. The ability to download digital content exposes a product to a larger audience than any advertising ever will. I can guarantee you that will foster more future purchasers than you will encourage more pirates. If something is popular enough to pirate it is popular enough to purchase and it will get purchased, they just need to stop dwelling on supposed lost sales and provide better value in the hard copy of whatever at a price the market will bear and they will not have to worry about the little mp3s and screeners on torrents.
Again, the seller can do whatever he wants. If a seller doesn't want to sell MP3's, well, you as the buyer do not have the right to demand that the seller give you MP3's. All you can do is not buy the sellers goods, and if the seller wants to make money, at some point he will have to either price things accordingly, or sell them in a format people or buying, or whatever -- but a seller could choose to only make music available on 8-track tapes, if he wanted to. He probably wouldn't sell many, but the seller is under no obligation to sell in a format others want.
To put it another way -- the buyer does not have the right to buy the seller's wares for a price the buyer sets and in a format demanded by the buyer.
Indeed, if it is worth queuing up in bittorrent it must be worth the effort. Since the effort is equivalent to about a penny, then that's what it is worth to the guy who queued it up. Offer the product for that same price and 'piracy' will disappear.
You are missing the point. You don't have a right to something at the price that you want to pay. You either decide to pay the price that the seller is offering, or you do without. Everything else is just an excuse.
For the most part it is. Its called the Berne Convention (first ratified in 1886) with something like 95% of the countries in the world a signer of the convention. Including Sweden, and Russia.
Just to be fair, though, the Berne Convention isn't about making the rest of the world abide by U.S. rules -- in fact, the U.S. didn't sign on until 1989, and had to change a bunch of rules in the U.S. to match up with the rules the rest of the world was using. For example, the U.S. had to get rid of copyright registration as a prerequisite for copyright protections, and had to get rid of copyright notices, to join up with Berne.
So in theory I could display google's logo in a prominent place on my webpage and use it as a logo, as long as it links back to their page..
If they complain, its just a thumbnail.. cool.
Don't confuse copyright and trademark law. Google's logo is more than a thumbnail -- it's a trademarked logo. Your use might be a "fair use" under copyright law, but would likely be infringing under trademark law.
The debate only regresses to that level amongst people who either don't know what they're talking about or are deliberately trying to cloud the issue.
No, it regresses to that level amongst people who want to discuss philosophy, or how the law should be, rather than those that want to talk about the law the way it is. All of the intellectual property laws (copyright, patents, trademarks) treat their respective rights as property. The rights are somewhat different from, say, real property, or other types of tangible property, but IP is treated under the law as property.
The problem is that the deal has become lop-sided. There's no way that an author's great grandchildren holding the rights to his writings up to 70 years after he died promotes the progress of science or the useful arts. That's just called greed. The author doesn't create more if he knows his distant descendants will still be extorting money for almost a century after he kicks off.
While I agree with you, this is pretty irrelevant when you consider that the bulk of pirated copyrighted material -- and by pirated, I include the "pro" pirates as well as file-sharers doing for reasons other than profit -- is stuff the has been around for less than 20 years, so unless you are considering a very short copyright term, changing the term isn't going to change the state of infringement.
They have a Constitutionally guaranteed secured right to their own writings and inventions.
Which, in no way, grants the artist the RIGHT to make a living as an artist. And says NOTHING about what the artist can do with their "rights" once they are vested.
Why are you having such a hard time with this?
And BTW, people sell other rights as well. People sell their right to free speech all of the time, like whenever you have a court settlement where the parties can't discuss what happened -- they accepted money in exchange for their freedom of speech with respect to a particular topic.
It's mighty paternalistic of you to decide that an artist cannot profit from the rights secured by the constitution by selling those rights, because it's in the artist's best interests.
Maybe you should move to Montana and join the Minutemen so you can plan your next revolution.
For the same reason why artists are forced to accept exploitative contracts under the current scheme--because there is no other way to obtain what they need.
Again, why do you think artists have the RIGHT to be artists? Where is that right in the consitution?
Now just what part of that is so astronomically difficult that you are completely unable to understand it?
Where does it say that an artist is not free to transfer their exclusive rights to another? Once the exclusive rights are granted, this clause says nothing about the future alienation of those rights by the owner.
That's not the point. The point is that the price is bargained for and the bargaining is affected by how much the rights are worth. If the rights are secured to the author or inventor then the author or inventor has a better bargaining position and will be able to negotiate a more favorable contract. If the government facilitates the removal of the inherent rights of the author or inventor then the bargaining position of the author or inventor is crippled and they are less likely to be able to negotiate a favorable contract.
Do you honestly think that artists would be able to negotiate a BETTER deal than they can now if they withheld transfer of ownership of the rights? They are free to do so now, you know -- any artist could negotiate to maintain ownership of their rights if they wanted to -- if that's BETTER for the artist, why don't they do that now.
I'm just curious as to why you think that the record labels would be willing to pay MORE for LESS rights, under your scheme?
The market does not deserve to be able to dictate terms to the authors and inventors.
Why not? What price SHOULD an artist be paid for his or her work, other than the market price?
Constitutionally the authors and inventors deserve to be able to dictate terms to the market. That's what a secured right does--it provides the position of dictating terms at the bargaining table.
But this is the way the system ALREADY works! An artist goes to the record label, the label makes their offer, the musician has the FREEDOM to accept the offer, negotiate, or walk away.
What the artists DOESN'T have is a RIGHT to go to the label, demand X, and then somehow compel the label to give the artist X. The artist can ask whatever price he or she wants for their work. The consitution does NOT demand that the record labels acquiese to the artist's demands.
And that's the way it should be. Every artist has the RIGHT to deman whatever they want for their work; but nobody is compelled to pay that price.
If they make music then secure their rights to them and let the market figure out whether or not they can support themselves with those rights.
Again, that's exactly the way the system works. No artist MUST sign over their rights -- they agree to do so, presumably for a price that they think is in THEIR best interest.
The problem I have with your kind of type (well, I'm generalising now; you could be the exeption), is that they are never satisfied and always find something to dispute or to ignore, when they *are* confronted with real studies.
Where did I say that I wouldn't be satisfied? I just haven't seen anything resembling a real study that shows one way or another whether IP rights stifle creativity on the whole.
They never deliver *any* scientific study (to prove otherwise) of their own, but every study that is presented, is deemed incorrect or unvalid or somehow lacking - as if they are all statistical experts who've analysed all those researchpapers.
Well, I'm not qualified to make such a study myself, and to be honest, I haven't spent a lot of time searching out such studies. My position is that the person challenging the law needs to provide the evidence -- the reason being, the laws already exist (whether the "natural" state is no IP law or whatever, the laws are here). If you want to change, you need to show why change would better benefit society as a whole than the current system. It's not like our legal system is set up so that a law is only valid so long as it is shown to be good (although maybe that IS a good way to do it -- but it isn't how it is now) -- we change laws when something better needs to be done. If no (or less) IP laws would create a net benefit to society, lets do the studies and see what happens.
Yes, I am a lawyer, but in my life before law school, I was a scientist, so I know a little about the scientific method and that sorta thing.
I will take a look at your references, maybe I will be convinced -- although the first one I looked at, the Groklaw cite, simply pointed to the front page of Groklaw, which really says nothing about whether creativity is being stifled, only lists a bunch of lawsuits currently going on. I'm not sure you can say that one begets the other. But I will look at the cites, maybe the evidence is out there.
Whether one is 'convinced' or not, all indications are, that at least in some fields, it IS doing more harm than that it is beneficial (in terms of more creativity and innovation). I'm still waiting to see *one* counter-indication in a true scientific paper that refutes those conclusions.
Again, I haven't looked at all of the cites given, but I haven't seen any scientific papers either way. And no, position papers or opinion papers don't count as "scientific" papers.
For me, I look at where technology is flourishing, where advances are being made, and most of the places where it is happening have strong IP protections. Now, I don't mean to imply a cause-and-effect relationship -- I just don't know if there is one -- but the fact that most of the more "advanced" countries (what we used to call "first world countries") seem to all have strong IP protections.
The fact that _vast_ numbers of those contracts were effectively signed under duress means we're morally justified in sharing and downloading music for free from the "big five", because they're primarily responsible for not only using lies to obtain artists, but also lying to the public, politicians, and anyone else they think they can con.
This is the only part of this response that I disagree with. I still believe that a bad recording contract is an issue between the two parties who signed the contract, namely the musician and the record label. It's not up to us, non-parties to the contract, to penalize either party because of a lousy contract they made. It's up to them.
But other than that, I basically agree with what you are saying.
I'm not out to make the record labels out to be good guys, or say that they are doing anything good -- all I am saying is that they are offering something, albeit maybe on lousy terms, that people are signing up for voluntarily, and the freedom to enter into a contract -- even a bad contract -- is the way our system works, and should work. I know that a lot of the people signing these contracts are kids who are generally unsophisticated in the reality of the music business, and yeah, they get taken advantage of -- but it's not like this is secret knowledge, and it's not like they couldn't hire their own lawyer to help them wade through the contract language and negotiate as necessary.
Dude, where are you coming from? You seem to be a most extreme literalist libertarian, but then when you start talking about musicians, you DON'T want any market influences. You seem to think that someone who is "born to be a musician" has a RIGHT to able to support themselves as a musician, and anything else means that they starve or they are a slave.
Well, I hate to break it to you, but nobody has a RIGHT to be a musician. Nobody. Not even someone who is "born" to do it. If you can't make enough money to survive as a musician, you need to do something else. The market does not owe you a living wage.
So, basically, you can find yourself more with those slashdotters that argue for no copyright at all, than for those who would want to shorten it?;-)
I think copyright term should be shortened -- maybe to 28 years, with an (expensive) further 28 year extension for those who want it -- along with a return to the mandatory copyright notice. But that should be done along with far more serious sanctions for those who ignore this new, shorter copyright.
Of course, the argument goes a bit beyond your assertation that 'slashdotters' (that would be you too, btw) want more moderate IP laws because they want to download the lastest film. In fact, the argument I have seen is that IP-laws should be beneficial to society as a whole, and that the purpose of it has always been to promote science and arts. It those condituions aren't met, then something should change about the IP laws.
But shouldn't the burden of proving whether or not the IP laws are beneficial to society as a whole be on those who want to get rid of them? Where is the evidence (not anecdotal, real studies) sowing that the current copyright laws and current patent law stifle creativity? I've asked this before here, and every time I just get a bunch of replies stating that I am stupid, or a stoolie for the IP lobby, or that I can't see what is so blatantly obvious in front of my face. What I would like to see is honest research that shows that patents and copyrights stifle innovation rather than foster it, for society as a whole.
Of course there are individual cases where a particular company, or a particular industry, was "stifled." One example was Polaroid holding all of the relevant patents on instant film, and not licensing those patents. People claimed that this "stifled" innovation. I replied that it probably led to faster development and adoption of digital cameras, and that is innovation. But these are anecdotal arguments, not studies, and don't concern society as a whole.
As you can probably tell, I don't believe that IP laws stifle creativity and progress for society as a whole. Yes, they increase the cost for certain individual companies or people, yes, they may stifle it for particular companies or even industries, but, as a whole, I think society is better off. But again, I don't have any studies to prove it one way or the or the other.
That doesn't mean I don't believe changes shouldn't be made, however.
You're either a troll who is deliberately spreading lies, or have never actually seen a standard contract from any of the five major labels, and are therefore simply spouting tripe from ignorance rather than deliberate malice.
Actually, I fit into neither category. The fact is, bad or not, unfair or not, the bands willingly signed into these contracts. They knew what they were getting into. Especially now, with the internet and the websites you posted below, there is no reason any band shouldn't know full well what they are getting into before they sign the contract.
That a band may have stars in their eyes, or be willing to do anything to become a rock star, well, that's not a problem with the contracts or the RIAA.
They did indeed, although most (and I do mean most, i.e. just about anybody that isn't mega-famous) seem to repent the fact after discovering that the deal they _thought_ they were getting (which was a lot like your fictitious account of generous record companies who pay for everything) resulted in them having no net earnings despite selling significant numbers of CDs, or (more usually) large amounts of debt that must be paid back.
You are right, I should have been more careful in what I wrote, that a lot of these things are an advance, rather than actually paid for by the record company. But the fact is, rather than take the advance, the bands could have paid for the recording and production themselves, and kept their rights -- that they didn't, or couldn't afford it at the time, and now they regret signing the contract -- well, how is that the RIAA's fault?
If you are selling a used car, do you try and maximize your profits, or do you try and make sure that the buyer gets the best deal possible?
Read the following links. If you are merely misguided, then you will be less so afterwards, and will not therefore post balderdash like this in the future. A troll who is trying to present the record companies as a cuddly brotherhood of artist defenders will obviously not bother to read them, and continue to disseminate total crap in the vain hope that somebody with the IQ of a cardboard box will believe them without bothering to verify anything for themselves.
I'm not defending the record companies -- I could care less about them. What I was defending was the ability to contract away your rights to a work you created. If you make a bad deal, does that mean the system is broken, or does it mean that you just made a bad deal? I'm not defending the record companies, but I don't have any tears for the musicians either. They shouldn't have signed the contracts they did without knowing what the contracts really entailed -- whether that means googling links like you provided, or hiring a lawyer, whatever, but nobody, musicians included, should sign a contract they don't fully understand.
And most importantly, that somebody else -- namely musicians -- signed a bad contract does not mean that anyone else then gets to stick it to the record companies by downloading and sharing music for free. It's an excuse, nothing more.
That party "A" should have a right to dictate how parties "B" and "C" share information with each other is not intrinsically obvious to people. That sharing a copy of something you enjoy with a friend is somehow wrong is not something that is intrinsically obvious to people. Without the relevant laws in place, people would forget the notion very soon. But it's not the case with physical property - even without the relevant laws backing it up, I would contend that most people would still recognise the concepts of "yours" and "mine", and that it's wrong to take physical property from someone. I hope you can appreciate the difference:)
I agree with you. The problem is, when we are talking about file sharing and the like, we are not sharing with a friend -- we are sharing with the world. Regardless of how you feel about the MPAA or RIAA, they aren't suing people for sharing with their friends and family -- they are suing people who are sharing with the world. That is a difference, and I don't think it is a minor difference.
It only results in a lot of accidental shooting deaths (not to mention deliberate shooting deaths). It's the one thing that seriously puts me off visiting the USA:(
It shouldn't. Shootings, in my opinion, are actually pretty rare in the USA too, given the size of the population and the number of guns available! Plus, although you are not supposed to say this in public, the vast majority (but not all) of shootings occur within, shall we say, certain social classes.
So, getting back on topic - your artificial right to bear arms is looked upon with disdain by many people in the world. If we can live quite happily without that, who's to say we can't live without your IP laws as well?
Well, just so you know, our IP laws are pretty much yours as well. See, e.g., the Berne Convention. Yeah, the U.S. has added the DMCA, but most of the other rules -- including the much-maligned copyright terms and the lack of a notice -- are the same rules used in all of the Berne Convention states. In fact, the removal of the requirement of a copyright notice in the U.S. -- which I think is an awful choice -- was made to be in compliance with what the rest of the world was doing.
Our patent laws are quite a bit different, but our copyright laws are pretty much the same as yours (unless you are writing from Afghanistan).
(observe: every man & his dog has copied something in his lifetime, even if it was just a mix tape - people just don't see the harm in it, you know?).
Nobody cares about your mix tape until you start to sell it to others, or otherwise widely distribute it. In fact, making a mix tape is explicitly legal in the U.S. Selling it isn't, but making it for you own personal use is. Ripping CD's that you own to MP3 is also legal. So is making a backup of your CD.
What isn't legal is when you start giving away stuff to the world.
"You're infringing on my rights!" is NOT a valid argument when arguing that the law shouldn't be changed - that IP law shouldn't be dropped entirely - because it's your right to control who gives copies of bits to whom. It's only your right because that particular law makes it so. It could be gone tomorrow. It's not a real right - it's just an artificial monopoly granted to you by today's society because it was deemed advantageous to society as a whole to do so.
I have no problem with people fighting against unfair or unreasonable laws. However, taking content without paying for it is not civil disobedience in any real sense, and those people who did successfully fight against bad laws suffered mightily for it. If you are going to download and share MP3's to stick it to the man and try and get changes made to the law, don't be suprised if you have to pay a price for your activism.
I'm not really "for" IP laws -- I think they make a lot of sense, I think that they are overall have more going for them tha
Okay, would you then be okay with much more severe penalties on people downloading materials less than 28 years old, in exchange for the more limited term of protection?
Just FYI, personally I think a shorter term -- maybe not as short as yours, maybe two 28-year terms, but requiring filing for the extension, along with a return to a required notice -- would be a good way to go with copyrights. But I think the long copyright term is just a red herring that people use to justify pirating -- people arne't pirating Citizen Kane, they are pirating Spiderman 3. I don't think anyone cares about making a new version of Steamboat Willie -- they just want to have something to hang their complaints on so that when they are downloading copies of the new Rush album they can do it with a "clean" conscience, because copyright law is so unfair and all that.
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By using some sort of competitive process to compare the patent applications for each slot against each other, you could weed out most of the bad patents. My favorite "competitive process" would be an auction setup - you allow anyone to submit a patent applications for a particular open slot, then you allow everyone else to bid on being able to own the patent rights for any of those applications. The application with the highest bid becomes a valid patent.
I assume that you mean "becomes a valid patent" after going through prosection, right? The problem becomes that the patent application, even if it got the highest bid, might not be all that great if, during prosecution, it had to be amended to the point where it became very limited in scope. Or worse, didn't issue at all because of prior art. What then?
If you hold the auction after prosecution, well, who is going to go through the time and expense if they only have one chance in 5, or 10, or 1000, or getting the patent issued, even after going though all of the prosecution hurdles.
Finally, as has been noted in other posts at other times, the value of a patent is not always apparent at the time the patent is filed.
1) Make the bar of being granted a patent much higher. The applicant should have to demonstrate significant effort to make the invention. It should take far more effort to invent something than to patent the results.
But what if you have something easy to make, but very, very innovative? And how do you determine how much effort went in to the innovation? I'm not saying this is an unworkable idea, just that there has to be more than this -- the patent system is designed to reward innovation, not just hard work.
2) For each patent, give adequate notice to the public to give them a chance to protest the patent. Hold as many hearings as necessary before the patent is granted.
Something along that line is coming if the patent reform act passes and gets signed into law.
3) Require a demonstration of the patent if there is any doubt over whether or not the applicant has ever actually built one.
This is a tricky piece, in my opinion. The patent system is designed to reward innovation, like I noted above, not hard work. You could come up with an innovative idea that might be very, very hard to implement, and might take years, or decades, to actually implement. If we wait until you actually build it, it could be a long time -- whereas granting the patent on the innovation puts the knowledge into the public domain so that others can build upon it.
Like 1) above, it's hard to separate out the innovation from the hard work.
4) Make patents non-exclusive. Any inventor should be able to use, sell, and market his own inventions, even if someone invented the same thing first. If he went to substantial effort to invent the item with no knowledge of products containing the same invention or of the patent, either permit him his own patent or add him to the previously existing patent. Reserve licensing of the patent to other parties for the first inventor only.
Kinda defeats the purpose of a patent. This is what copyright law is for -- you can protect against copying, but not independent discovery. But that's also why it is far, far easier to obtain a copyright than a patent, because the scope of protection is far more limited. If you are going to make patents non-exclusive, then the patent process should be made very, very easy. It makes no sense to have a tough approval process for a patent that has no real ability to be enforced in any meaningful way.
5) Before a patent lawsuit may be initiated, require the patentee to notify the infringer and give him adequate notice of his patents and ample opportunity to stop using the invention. Enable the infringer the ability to request a hearing over the question of whether or not the patent was rightfully granted.
This is already the de facto rule -- the damages clock doesn't start ticking until the alleged infringer is put on notice by the patent holder that they might be infringing. If you file suit, and the alleged infringer stops his activities immediately, there are no damages to collect.
The only exception is marking -- if you sell a product, and you mark the product with your patent number, then you get a presumption of notice.
Of course, there is always the injunction, which doesn't require starting the damages clock -- but injunctions are much harder to get these days than they used to be.
6) Permit the patent owner to recover damages only from willing infringers. That would be someone who either knew about the patent before using it or who continued to use it more than a year after being given notice of his infringement.
See above -- you can only collect damages once the alleged infringer has been put on notice, or if you mark your products to make it known that you have obtained a patent (and, presumably, intend to enforce it).
Why should there be a year grace period?
7) Base the damages awarded on the greater value of the invention to the patent owner and to the infringer. That is, if the patent owner and the i
That's part of patent law I've never understood. I've been told by people (who have patents) that it is in their best interest to *NOT* do a patent search before applying for a patent, since that search could be used against them later, to prove willful infringement, which carries a stiffer penalty (I guess) than mere incidental infringement.
Other posters have presented a number of reasons why an inventor might not do a search. Here's another one.
If you search for prior art, you are obligated by law to disclose the art that you do find. Now, not all art is created equal, and the law only requires you to disclose "material" art that is not "cumulative." So, let's say you find some art that is maybe relevant to your patent.
What happens if you don't disclose it? Well, if you ever try and enforce your patent, the other side is for sure going to get a hold of all of your notes in discovery, and if they find evidence that you knew about a particular piece of art, and didn't disclose it to the USPTO, then they will try and prove "inequitable conduct" and get the patent declared unenforceable. Now, maybe the art is sketchy, and you will be able to prove up the fact that the ommission was reasonable because the art was either not more material than art already in front of the examiner, or that it was merely cumulative to art that was already in front of the examiner -- but this is something for a jury to decide, maybe not a risk you want to take.
But what happens if you do disclose this art, that may or may not be relevant? Best case, nothing. The examiner ignores it, and it gets noted as a piece of art cited by the applicant. But what could (and sometimes does) happen is that the examiner decides that the art is more relevant than it objectively is, and makes rejections based on this art. If the art is really sketchy, then you should be able to traverse or amend around these objections -- but every time you amend, or traverse a rejection, you are creating a paper trail (prosecution history estoppel) that can be used against you in a later court action to narrow the scope of the patent.
Of course, if the art is good, then yeah, you should have to explain why you are entitled to the patent. The problem is, sometimes examiners, who are overworked and have little time to spend on any particular application, make rejections based on art that are just ridiculous -- and even if you can work your way around the rejections, you have now limited the scope of your patent's claims if you ever end up trying to enforce the patent in court.
So, if you do a search, and you find art that is maybe kosher, maybe not, you end up with a Hobson's choice -- decide not to disclose, and face having to try and overcome an inequitable conduct claim later on, or disclose, and face having your patent scope narrowed during prosecution.
That's a reason why patent attorneys often counsel their clients NOT to do a search. If you haven't looked, you can't be held responsible for knowing about something and not disclosing it.
NOTE: I am not saying that this is the best way to do things, just that, under the current system, this is why an attorney might advise a client not to search. Also, it's not like relevant art that was not disclosed, and not found by the examiner, can't be used to invalidate a patent during litigation -- a defendant in a patent litigation suit has far more resources, and far more incentive, to scour the globe to find real, honest-to-goodness invalidating art...
Everybody is required to listen and see force fed ads everywhere they go. I'd be perfectly happy not knowing all the great songs and movies I miss. How could I pirate something I don't know about?
I see Ferraris sometimes on my commute to work. Doesn't mean I can afford one, doesn't mean I am entitled to one, doesn't mean I should go steal one if I can't afford it.
Just because you hear a song or see a movie doesn't mean you are entitled to it. You may really want it, but you are in no way entitled to it.
You have a number of well thought-out and articulate points. I don't agree with them, but that's a different issue.
But this:
If not, people will find another way to get it if the consumer deems effort required less burdensome than the price asked.
Is just flat wrong. It may reflect the current reality, but it's not right, not ethically nor legally. As others have noted, if the price is too high, you just don't buy it. That's the choice -- pay the price, or don't get the work. If the creator is charging too much, well, that's his or her right -- you are not obligated to buy. You, as the buyer, are not obligated to ensure that the creator makes money from his or her creation.
But using "the price is too high" as an excuse to pirate, or steal, the work is just that -- an excuse to try and make yourself feel better about taking something from somebody. You don't have a right to the creator's work -- you either buy it at the price the creator sets, or you go without.
I don't know where this whole entitlement mindset comes from.
The problem is overpriced bullshit.
So what? If it's too expensive, don't buy it. You DO NOT have a right to the music. If you think its overpriced, don't buy it.
Meanwhile the label gets millions of dollars, and for what? Pressing some CDs? A little advertising? They're making BOATLOADS of cash for doing practically nothing.
So what? They've got a business model that works. Bands are doing everything they can to sign with the record labels. The bands are forced into this at gunpoint -- they voluntarily sign (admittedly one-sided) contracts. If you are going to blame anyone, blame the bands. Or the people who buy the CD's.
Every day they make it more and more clear that they consider it their right to have everyone paying them, even people who don't and never will listen to their music.
Just because they won't sell CD's or MP3's at a price YOU want to pay does NOT mean that the RIAA thinks it is entitled to make a profit.
But it's becoming pretty clear that the current business model for selling things that can be easily copied is not working.
Why isn't it working? Are the record labels going under?
Oh, you mean it isn't working for you.
Calling everything "theft" and "piracy" is not going to solve anything.
Well, taking stuff without paying for it isn't going to solve anything either.
People need to start thinking about new ways to deliver content that is acceptable to both the creator and the consumer.
Why? Seems like a lot of people are making a lot of money the way things are today.
Maybe people need to start looking at ways to do the same things with a lower budget. Maybe actors don't really need anywhere from one to fifteen million dollars to star in one movie that takes about a year to film.
What gives you, or anyone, the right to determine how much an actor should get paid, or what budget someone should spend on a CD or movie?
There's a lot of people in the US that work a lot harder than any actor or anybody at the RIAA and for a hell of a lot less money.
There's a lot of people that work a lot harder than any athlete. Or any singer. Or any CEO. Or any doctor or lawyer or software engineer. Do you think the Google founders work any harder, than say, someone laying asphalt in Phoenix in the summer? Or someone picking crops?
We don't pay people based on their labor -- if we did, laborers would be the most highly paid people in the U.S., actors and atheletes would be at the bottom. We pay people based on the value they bring to a particular enterprise. The reason Brad Pitt makes $15 million or whatever per movie is because 100 million people will pay $10 or whatever to see Brad Pitt. I doubt there are 100 million people willing to pay $10 to see anonymous coward act -- but that's why Pitt makes $15 million and you, presumably, don't.
If you have a shitty product, no one is going to buy it. Should we be also legally guarantee that if someone makes something, they will get revenue from it, even if it sucks?
Of course not. But shouldn't the creator of the product be free to sell their product for any price they want? If I create a CD, should I be required to sell it at a price that people can afford, or can I price it at $10,000,000 per copy? Nobody is required to buy a CD, or a movie, or a piece of software, so why shouldn't someone be able to charge whatever they want for it?
But let's apply this to a well-known set of intarwebs content creators: Gabe and Tycho of Penny-Arcade. They're on record (as a matter of fact in writing at the back of their first hardcopy collection, of which there are 3 so far, and I've bought all 3 because of the added value in buying them at a decent price) as saying that hiding your content from your users because you're afraid they'll take it is kinda silly (which I tend to agree with, and why I think the subscription based Modern Tales group goes about the whole thing the wrong way - and why I think PVP's add-on animated subscription featurettes are a great idea; you get the meat for free, and if you want the dessert you shell out a little cash for it). PA was once in dire straits due to the ad network collapses and the loss of revenue thereof. They didn't have the financial resources to go down the failing route of the RIAA and MPAA, instead they adapted and are thriving to this day. None of their strips require you to pay for them, and there's no silly DRM preventing you from doing Save-As on a strip. Even so, people pay cold hard cash to get their books and their merchandise. Why? Cuz they know how to make what their target audience wants and what price their audience will shell out for extra stuffs.
Great -- but that's their decision to let the stuff go free.
Besides, it's a pretty big stretch to go from Penny Arcade to LOTR. Not every business model is completely scalable.
No, I don't think you are getting it. Even if a product is worth having, if it is priced beyond what the market will bear people will not buy it and will continue to find a way to obtain it otherwise. Digital items cost what to produce? Next to nothing yet producers try to garner hundreds and thousands of dollars for a digital copy of something that costs nothing to manufacture. Yes, development does cost money, but if the end result is crap it is still worth nothing. The market will pay what the market will pay and there is no way you can convince me that a piece of plastic that they can reproduce at will for pennies is worth what they want you to pay for it.
As noted elsewhere, this is besides the point. The cost to produce is irrelevant. You do not have a right to dictate to the seller what price he or she can ask for his or her goods. The seller sets the price, you either take it or leave it. It doesn't matter what the cost of production is, or fixed costs, or sunk costs, none of that matters. The seller can choose to sell their goods at any price they want, and the buyer is free to buy, or not buy, or negotiate.
But the buyer is not free to dictate to the seller the price.
Now, costs and all that are relevant if the seller wants to maximize sales, etc. -- and they may factor in to what the buyer thinks is a fair price for the product. But none of that has any impact on the actual sales price. That's set by the seller. If the sales price is set too high, then there will be few buyers. Or no buyers.
But the price being too high in no way implies a right on the part of the seller to obtain the goods through illegal means. If the price is too high, the choice is for the buyer to go without. If the seller wants to sell, the seller can lower the price until people want to buy -- that's the way the market works -- but the seller is in no way obligated reduce the price. The seller could choose to simply not sell.
This isn't about guaranteeing a specific profit (or any profit) for the seller -- it is, however, giving the seller the right to sell his property for what he feels is the right price to him. Whether anyone buys or not is a different story entirely.
Yes people queue up in torrents for SPECIFIC titles and I am willing to bet those real title sales aren't hurting much either.
But they ARE hurting, at least to some extent. Who gave the people queueing on a torrent the right to decide how much money the copyright holder is entitled to make?
I won't even go into how many former pirates routinely purchase things today now that they are older and more financially capable of making those purchases. The ability to download digital content exposes a product to a larger audience than any advertising ever will. I can guarantee you that will foster more future purchasers than you will encourage more pirates. If something is popular enough to pirate it is popular enough to purchase and it will get purchased, they just need to stop dwelling on supposed lost sales and provide better value in the hard copy of whatever at a price the market will bear and they will not have to worry about the little mp3s and screeners on torrents.
Again, the seller can do whatever he wants. If a seller doesn't want to sell MP3's, well, you as the buyer do not have the right to demand that the seller give you MP3's. All you can do is not buy the sellers goods, and if the seller wants to make money, at some point he will have to either price things accordingly, or sell them in a format people or buying, or whatever -- but a seller could choose to only make music available on 8-track tapes, if he wanted to. He probably wouldn't sell many, but the seller is under no obligation to sell in a format others want.
To put it another way -- the buyer does not have the right to buy the seller's wares for a price the buyer sets and in a format demanded by the buyer.
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Indeed, if it is worth queuing up in bittorrent it must be worth the effort. Since the effort is equivalent to about a penny, then that's what it is worth to the guy who queued it up. Offer the product for that same price and 'piracy' will disappear.
You are missing the point. You don't have a right to something at the price that you want to pay. You either decide to pay the price that the seller is offering, or you do without. Everything else is just an excuse.
Funny that you use two of the highest grossing movie series of all time for your argument. Those movies really suffered from piracy.. yes..
But your statement at least implies that the studios would have made MORE money if their hadn't been piracy, so they did lose something.
For the most part it is. Its called the Berne Convention (first ratified in 1886) with something like 95% of the countries in the world a signer of the convention. Including Sweden, and Russia.
Just to be fair, though, the Berne Convention isn't about making the rest of the world abide by U.S. rules -- in fact, the U.S. didn't sign on until 1989, and had to change a bunch of rules in the U.S. to match up with the rules the rest of the world was using. For example, the U.S. had to get rid of copyright registration as a prerequisite for copyright protections, and had to get rid of copyright notices, to join up with Berne.
So in theory I could display google's logo in a prominent place on my webpage and use it as a logo, as long as it links back to their page..
If they complain, its just a thumbnail.. cool.
Don't confuse copyright and trademark law. Google's logo is more than a thumbnail -- it's a trademarked logo. Your use might be a "fair use" under copyright law, but would likely be infringing under trademark law.
The debate only regresses to that level amongst people who either don't know what they're talking about or are deliberately trying to cloud the issue.
No, it regresses to that level amongst people who want to discuss philosophy, or how the law should be, rather than those that want to talk about the law the way it is. All of the intellectual property laws (copyright, patents, trademarks) treat their respective rights as property. The rights are somewhat different from, say, real property, or other types of tangible property, but IP is treated under the law as property.
The problem is that the deal has become lop-sided. There's no way that an author's great grandchildren holding the rights to his writings up to 70 years after he died promotes the progress of science or the useful arts. That's just called greed. The author doesn't create more if he knows his distant descendants will still be extorting money for almost a century after he kicks off.
While I agree with you, this is pretty irrelevant when you consider that the bulk of pirated copyrighted material -- and by pirated, I include the "pro" pirates as well as file-sharers doing for reasons other than profit -- is stuff the has been around for less than 20 years, so unless you are considering a very short copyright term, changing the term isn't going to change the state of infringement.
They have a Constitutionally guaranteed secured right to their own writings and inventions.
Which, in no way, grants the artist the RIGHT to make a living as an artist. And says NOTHING about what the artist can do with their "rights" once they are vested.
Why are you having such a hard time with this?
And BTW, people sell other rights as well. People sell their right to free speech all of the time, like whenever you have a court settlement where the parties can't discuss what happened -- they accepted money in exchange for their freedom of speech with respect to a particular topic.
It's mighty paternalistic of you to decide that an artist cannot profit from the rights secured by the constitution by selling those rights, because it's in the artist's best interests.
Maybe you should move to Montana and join the Minutemen so you can plan your next revolution.
For the same reason why artists are forced to accept exploitative contracts under the current scheme--because there is no other way to obtain what they need.
Again, why do you think artists have the RIGHT to be artists? Where is that right in the consitution?
Now just what part of that is so astronomically difficult that you are completely unable to understand it?
Where does it say that an artist is not free to transfer their exclusive rights to another? Once the exclusive rights are granted, this clause says nothing about the future alienation of those rights by the owner.
That's not the point. The point is that the price is bargained for and the bargaining is affected by how much the rights are worth. If the rights are secured to the author or inventor then the author or inventor has a better bargaining position and will be able to negotiate a more favorable contract. If the government facilitates the removal of the inherent rights of the author or inventor then the bargaining position of the author or inventor is crippled and they are less likely to be able to negotiate a favorable contract.
Do you honestly think that artists would be able to negotiate a BETTER deal than they can now if they withheld transfer of ownership of the rights? They are free to do so now, you know -- any artist could negotiate to maintain ownership of their rights if they wanted to -- if that's BETTER for the artist, why don't they do that now.
I'm just curious as to why you think that the record labels would be willing to pay MORE for LESS rights, under your scheme?
The market does not deserve to be able to dictate terms to the authors and inventors.
Why not? What price SHOULD an artist be paid for his or her work, other than the market price?
Constitutionally the authors and inventors deserve to be able to dictate terms to the market. That's what a secured right does--it provides the position of dictating terms at the bargaining table.
But this is the way the system ALREADY works! An artist goes to the record label, the label makes their offer, the musician has the FREEDOM to accept the offer, negotiate, or walk away.
What the artists DOESN'T have is a RIGHT to go to the label, demand X, and then somehow compel the label to give the artist X. The artist can ask whatever price he or she wants for their work. The consitution does NOT demand that the record labels acquiese to the artist's demands.
And that's the way it should be. Every artist has the RIGHT to deman whatever they want for their work; but nobody is compelled to pay that price.
If they make music then secure their rights to them and let the market figure out whether or not they can support themselves with those rights.
Again, that's exactly the way the system works. No artist MUST sign over their rights -- they agree to do so, presumably for a price that they think is in THEIR best interest.
The problem I have with your kind of type (well, I'm generalising now; you could be the exeption), is that they are never satisfied and always find something to dispute or to ignore, when they *are* confronted with real studies.
Where did I say that I wouldn't be satisfied? I just haven't seen anything resembling a real study that shows one way or another whether IP rights stifle creativity on the whole.
They never deliver *any* scientific study (to prove otherwise) of their own, but every study that is presented, is deemed incorrect or unvalid or somehow lacking - as if they are all statistical experts who've analysed all those researchpapers.
Well, I'm not qualified to make such a study myself, and to be honest, I haven't spent a lot of time searching out such studies. My position is that the person challenging the law needs to provide the evidence -- the reason being, the laws already exist (whether the "natural" state is no IP law or whatever, the laws are here). If you want to change, you need to show why change would better benefit society as a whole than the current system. It's not like our legal system is set up so that a law is only valid so long as it is shown to be good (although maybe that IS a good way to do it -- but it isn't how it is now) -- we change laws when something better needs to be done. If no (or less) IP laws would create a net benefit to society, lets do the studies and see what happens.
Yes, I am a lawyer, but in my life before law school, I was a scientist, so I know a little about the scientific method and that sorta thing.
I will take a look at your references, maybe I will be convinced -- although the first one I looked at, the Groklaw cite, simply pointed to the front page of Groklaw, which really says nothing about whether creativity is being stifled, only lists a bunch of lawsuits currently going on. I'm not sure you can say that one begets the other. But I will look at the cites, maybe the evidence is out there.
Whether one is 'convinced' or not, all indications are, that at least in some fields, it IS doing more harm than that it is beneficial (in terms of more creativity and innovation). I'm still waiting to see *one* counter-indication in a true scientific paper that refutes those conclusions.
Again, I haven't looked at all of the cites given, but I haven't seen any scientific papers either way. And no, position papers or opinion papers don't count as "scientific" papers.
For me, I look at where technology is flourishing, where advances are being made, and most of the places where it is happening have strong IP protections. Now, I don't mean to imply a cause-and-effect relationship -- I just don't know if there is one -- but the fact that most of the more "advanced" countries (what we used to call "first world countries") seem to all have strong IP protections.
The fact that _vast_ numbers of those contracts were effectively signed under duress means we're morally justified in sharing and downloading music for free from the "big five", because they're primarily responsible for not only using lies to obtain artists, but also lying to the public, politicians, and anyone else they think they can con.
This is the only part of this response that I disagree with. I still believe that a bad recording contract is an issue between the two parties who signed the contract, namely the musician and the record label. It's not up to us, non-parties to the contract, to penalize either party because of a lousy contract they made. It's up to them.
But other than that, I basically agree with what you are saying.
I'm not out to make the record labels out to be good guys, or say that they are doing anything good -- all I am saying is that they are offering something, albeit maybe on lousy terms, that people are signing up for voluntarily, and the freedom to enter into a contract -- even a bad contract -- is the way our system works, and should work. I know that a lot of the people signing these contracts are kids who are generally unsophisticated in the reality of the music business, and yeah, they get taken advantage of -- but it's not like this is secret knowledge, and it's not like they couldn't hire their own lawyer to help them wade through the contract language and negotiate as necessary.
Dude, where are you coming from? You seem to be a most extreme literalist libertarian, but then when you start talking about musicians, you DON'T want any market influences. You seem to think that someone who is "born to be a musician" has a RIGHT to able to support themselves as a musician, and anything else means that they starve or they are a slave.
Well, I hate to break it to you, but nobody has a RIGHT to be a musician. Nobody. Not even someone who is "born" to do it. If you can't make enough money to survive as a musician, you need to do something else. The market does not owe you a living wage.
Oh, and BEST HYPERBOLE EVER.
So, basically, you can find yourself more with those slashdotters that argue for no copyright at all, than for those who would want to shorten it? ;-)
I think copyright term should be shortened -- maybe to 28 years, with an (expensive) further 28 year extension for those who want it -- along with a return to the mandatory copyright notice. But that should be done along with far more serious sanctions for those who ignore this new, shorter copyright.
Of course, the argument goes a bit beyond your assertation that 'slashdotters' (that would be you too, btw) want more moderate IP laws because they want to download the lastest film. In fact, the argument I have seen is that IP-laws should be beneficial to society as a whole, and that the purpose of it has always been to promote science and arts. It those condituions aren't met, then something should change about the IP laws.
But shouldn't the burden of proving whether or not the IP laws are beneficial to society as a whole be on those who want to get rid of them? Where is the evidence (not anecdotal, real studies) sowing that the current copyright laws and current patent law stifle creativity? I've asked this before here, and every time I just get a bunch of replies stating that I am stupid, or a stoolie for the IP lobby, or that I can't see what is so blatantly obvious in front of my face. What I would like to see is honest research that shows that patents and copyrights stifle innovation rather than foster it, for society as a whole.
Of course there are individual cases where a particular company, or a particular industry, was "stifled." One example was Polaroid holding all of the relevant patents on instant film, and not licensing those patents. People claimed that this "stifled" innovation. I replied that it probably led to faster development and adoption of digital cameras, and that is innovation. But these are anecdotal arguments, not studies, and don't concern society as a whole.
As you can probably tell, I don't believe that IP laws stifle creativity and progress for society as a whole. Yes, they increase the cost for certain individual companies or people, yes, they may stifle it for particular companies or even industries, but, as a whole, I think society is better off. But again, I don't have any studies to prove it one way or the or the other.
That doesn't mean I don't believe changes shouldn't be made, however.
You're either a troll who is deliberately spreading lies, or have never actually seen a standard contract from any of the five major labels, and are therefore simply spouting tripe from ignorance rather than deliberate malice.
Actually, I fit into neither category. The fact is, bad or not, unfair or not, the bands willingly signed into these contracts. They knew what they were getting into. Especially now, with the internet and the websites you posted below, there is no reason any band shouldn't know full well what they are getting into before they sign the contract.
That a band may have stars in their eyes, or be willing to do anything to become a rock star, well, that's not a problem with the contracts or the RIAA.
They did indeed, although most (and I do mean most, i.e. just about anybody that isn't mega-famous) seem to repent the fact after discovering that the deal they _thought_ they were getting (which was a lot like your fictitious account of generous record companies who pay for everything) resulted in them having no net earnings despite selling significant numbers of CDs, or (more usually) large amounts of debt that must be paid back.
You are right, I should have been more careful in what I wrote, that a lot of these things are an advance, rather than actually paid for by the record company. But the fact is, rather than take the advance, the bands could have paid for the recording and production themselves, and kept their rights -- that they didn't, or couldn't afford it at the time, and now they regret signing the contract -- well, how is that the RIAA's fault?
If you are selling a used car, do you try and maximize your profits, or do you try and make sure that the buyer gets the best deal possible?
Read the following links. If you are merely misguided, then you will be less so afterwards, and will not therefore post balderdash like this in the future. A troll who is trying to present the record companies as a cuddly brotherhood of artist defenders will obviously not bother to read them, and continue to disseminate total crap in the vain hope that somebody with the IQ of a cardboard box will believe them without bothering to verify anything for themselves.
I'm not defending the record companies -- I could care less about them. What I was defending was the ability to contract away your rights to a work you created. If you make a bad deal, does that mean the system is broken, or does it mean that you just made a bad deal? I'm not defending the record companies, but I don't have any tears for the musicians either. They shouldn't have signed the contracts they did without knowing what the contracts really entailed -- whether that means googling links like you provided, or hiring a lawyer, whatever, but nobody, musicians included, should sign a contract they don't fully understand.
And most importantly, that somebody else -- namely musicians -- signed a bad contract does not mean that anyone else then gets to stick it to the record companies by downloading and sharing music for free. It's an excuse, nothing more.
That party "A" should have a right to dictate how parties "B" and "C" share information with each other is not intrinsically obvious to people. That sharing a copy of something you enjoy with a friend is somehow wrong is not something that is intrinsically obvious to people. Without the relevant laws in place, people would forget the notion very soon. But it's not the case with physical property - even without the relevant laws backing it up, I would contend that most people would still recognise the concepts of "yours" and "mine", and that it's wrong to take physical property from someone. I hope you can appreciate the difference :)
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I agree with you. The problem is, when we are talking about file sharing and the like, we are not sharing with a friend -- we are sharing with the world. Regardless of how you feel about the MPAA or RIAA, they aren't suing people for sharing with their friends and family -- they are suing people who are sharing with the world. That is a difference, and I don't think it is a minor difference.
It only results in a lot of accidental shooting deaths (not to mention deliberate shooting deaths). It's the one thing that seriously puts me off visiting the USA
It shouldn't. Shootings, in my opinion, are actually pretty rare in the USA too, given the size of the population and the number of guns available! Plus, although you are not supposed to say this in public, the vast majority (but not all) of shootings occur within, shall we say, certain social classes.
So, getting back on topic - your artificial right to bear arms is looked upon with disdain by many people in the world. If we can live quite happily without that, who's to say we can't live without your IP laws as well?
Well, just so you know, our IP laws are pretty much yours as well. See, e.g., the Berne Convention. Yeah, the U.S. has added the DMCA, but most of the other rules -- including the much-maligned copyright terms and the lack of a notice -- are the same rules used in all of the Berne Convention states. In fact, the removal of the requirement of a copyright notice in the U.S. -- which I think is an awful choice -- was made to be in compliance with what the rest of the world was doing.
Our patent laws are quite a bit different, but our copyright laws are pretty much the same as yours (unless you are writing from Afghanistan).
(observe: every man & his dog has copied something in his lifetime, even if it was just a mix tape - people just don't see the harm in it, you know?).
Nobody cares about your mix tape until you start to sell it to others, or otherwise widely distribute it. In fact, making a mix tape is explicitly legal in the U.S. Selling it isn't, but making it for you own personal use is. Ripping CD's that you own to MP3 is also legal. So is making a backup of your CD.
What isn't legal is when you start giving away stuff to the world.
"You're infringing on my rights!" is NOT a valid argument when arguing that the law shouldn't be changed - that IP law shouldn't be dropped entirely - because it's your right to control who gives copies of bits to whom. It's only your right because that particular law makes it so. It could be gone tomorrow. It's not a real right - it's just an artificial monopoly granted to you by today's society because it was deemed advantageous to society as a whole to do so.
I have no problem with people fighting against unfair or unreasonable laws. However, taking content without paying for it is not civil disobedience in any real sense, and those people who did successfully fight against bad laws suffered mightily for it. If you are going to download and share MP3's to stick it to the man and try and get changes made to the law, don't be suprised if you have to pay a price for your activism.
I'm not really "for" IP laws -- I think they make a lot of sense, I think that they are overall have more going for them tha
Okay, would you then be okay with much more severe penalties on people downloading materials less than 28 years old, in exchange for the more limited term of protection?
Just FYI, personally I think a shorter term -- maybe not as short as yours, maybe two 28-year terms, but requiring filing for the extension, along with a return to a required notice -- would be a good way to go with copyrights. But I think the long copyright term is just a red herring that people use to justify pirating -- people arne't pirating Citizen Kane, they are pirating Spiderman 3. I don't think anyone cares about making a new version of Steamboat Willie -- they just want to have something to hang their complaints on so that when they are downloading copies of the new Rush album they can do it with a "clean" conscience, because copyright law is so unfair and all that.