First of all, it's a better option in terms of electronic searching than just having paper editions of a book out.
Yes, but which is better overall? A book that you own, can use without reference to any sort of contract or DRM, can resell, etc. but which isn't electronically searchable, or a book that can be searched, but is also quite limited (perhaps you can only search so many times per day) and which you have to pay for again and again and again?
What I was saying was that while the searchability is great, I don't think that it's worth the downside that comes with DRM.
Yeah, book publishers are going to really eager to share their electronic version of the book with what you mentioned above.
Given a choice between not publishing at all, publishing with DRM and no copyright, and without DRM and with a copyright, I think they'll opt for the third option. Some authors might not publish, true, but I think the loss of their work is made up for by the gains with regard to other works. Remember: the public benefits not merely from having more works, but from having more freedom with regards to works. The ones that opt for DRM are no worry if their works are in the public domain, since there's always some manner of hole present in the DRM and since so many competitors and users would have an incentive to attack it.
The trick is to push for what you want, and to realize there will be some acceptable losses. I mean, if we offered million-year-long copyright, and the law required royalties to be paid whenever someone even mentioned the book by name, I'm sure more people would write. We seem to have decided that not doing that is worthwhile, even though some people haven't published. So what's so magically different about the current system that precludes us from at least considering reducing copyright, losing some authors, gaining some freedom, and seeing if it makes us better off when we compare the losses against the gains?
Yes, DRM is morally disturbing and all but if it's not there we will never see an electronic library ever.
No, I disagree. We will see one. But not if we sit on our asses and wait for publishers to offer us one on a silver platter. If this is what you want, you have to figure out how to force publishers to offer it, using copyright as both carrot and stick, or how to economically and lawfully put your own together if they don't opt into it.
Now, if there was standard DRM then books would be released electroically that you could search through or have search engines search through.
Actually, this is unlikely. And in any event, the benefit of making the book searchable is dubious given that the DRM could be used to limit your ability to search it, that searching isn't really important for some books (e.g. most works of fiction), and that the DRM could be set up so that it cost you money every time you used the book in particular ways, or at all.
I think that a better solution would be to a) prohibit authors et al from having copyrights if they use DRM at all, b) not just legalize circumventing DRM, but have the government help (with funding, coordination, and dissemination of the uncopyrightable plaintext), and c) to make some other alterations to copyright, such as beefing up deposit requirements (so that electronic copies are on file with the Library of Congress) and shortening term lengths (so that the book will enter the public domain quite rapidly, if the author et al even bothers to pursue copyright to begin with).
Don't be such a defeatist. Stand up for a change, and fight for what you want!
Re:Would some one please explain...
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The Day Against DRM
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· Score: 2, Insightful
But how serious is this? Copyright doesn't expire for like 100 years.
But you forget: copyrights are limited in scope. For example, it is not an infringement of copyright to rent a DVD you own to someone else. If DRM interferes with this, it's no different than DRM interfering with something that wouldn't infringe copyright simply because the copyright has expired. The main limitation we're concerned with is fair use, because literally any use, under the right circumstances, is a fair one. (And conversely, no use, under the wrong circumstances, is fair)
What is the likelihood that today's DRM will still be effective then, and that the DMCA and similar laws will be unchanged?
Who cares? Copyright is a very forward-looking law. It is meant to assure a net public benefit in the future. If this is uncertain, then the law is not a good one.
Imagine if a town issued bonds to build a water tower, but they wouldn't promise that the bonds would ever mature. Maybe they would, maybe they wouldn't. Without this certainty, no one would be stupid enough to buy the bonds, and the town wouldn't raise the money for their project.
DRM is quite similar, except that people willing to tolerate it are in fact being foolish enough to do something else, like throw money away in the example above.
Re:Would some one please explain...
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The Day Against DRM
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· Score: 2, Insightful
That's true only if "fair use" can't be specifically defined.
And it can't be. That's the whole point of fair use: it protects uses that are fair, given the circumstances involved. It is impossible to say that making backup copies, for example, is a fair use. In some circumstances it might be. In others, it might not be. A court is capable of looking at the facts and making a decision. And other courts might disagree given the same facts, it's such an infamously nebulous concept. This is routine. But no DRM system will ever be able to do what a court does.
But by saying "fair use" can't be specifically defined you're saying: "Hey copyright holders! You can't enforce your laws because you don't know if 'fair use' for me means 10 copies or 1,000 copies or 1,000,000 copies."
No, and now you're just being an idiot. Fair use can't be defined. But if a copyright holder thinks that a particular use is not fair, and you think it is fair, then you go to a court, and they make the final decision that both of you are stuck with. And so it is perfectly easy to enforce the law.
Not to mention the argument that you are agreeing to their terms of purchace, and they can tell you to use whatever device they damn well please. Again, the free market agument comes into play.
Copyright already deals with a government-granted monopoly, and artificial scarcity, so the idea of a free market has flown right out the window from the get-go. As for terms of purchase, let's remember that the law of sales, contract law, copyright law, etc. are laws, and thus may be changed. Some terms may simply be unenforcable according to the law, either substantively (i.e. a particular term is objectionable) or procedurally (i.e. the method by which the term was put forth wasn't the correct one). And others that are enforced now, may become unenforcable in the future. Where there is a conflict between what the law says, and what DRM says, I'm going to side with the law.
But is there anyone out there that is cool with copyrights, but thinks DRM is bad?
I like the general idea of copyrights, and I support copyright laws that actually accomplish the purpose of copyright laws (viz. to promote the progress of science), particularly those that do a good job of it.
And I despise DRM.
Copyright is a utilitarian system meant to serve the public interest. It may be altered by legislation, interpreted by the courts, and stricken down when unconstitutional. It is limited in duration and in scope. It only applies to some subject matter. Copyrights cannot be enforced unless the appropriate parties take affirmative action to do so, which at times, they may not wish to do. Copyright cannot be used against the copyright holder. Copyright is optional, and need not exist at all.
DRM is not like that in any way.
DRM is meant to serve the interests of publishers and authors, regardless of whether they hold copyrights or not. DRM systems are privately implemented, and generally exist independently of their implementors (e.g. DVDs are static in nature), and so are resistant to change stemming from government at the behest of the people. DRM is permanent in duration, and is inescapably overexpansive in scope as compared to copyright. DRM applies to any subject matter it is used in relation to. DRM systems effectively enforce themselves, even when they do so beneath the notice of those that implemented them. DRM can interfere with authors that use it (e.g. if you lose your master and need to use a DRM-encumbered copy as a new master, the DRM might interfere with you, especially if you're on a tight budget). It is probably impossible to legislate DRM away.
But do they not have a right to protect their intellectual property?
Taking your underlying meaning, yes. But those rights are only what we give them, and should only be given when it suits our purposes to do so.
DRM is utterly hostile to the public. Since copyright is a creation of the public, granted to authors when it serves the public to do so, we need only be cautious to avoid it from being abused, granted unwisely, and harming the public. DRM is harder to control.
Ultimately, I think the best tactic is to 1) make copyright and DRM mutually exclusive, such that if an author opts for one, he must forgo the other, and 2) to not only make it lawful to break DRM systems (which would, per #1, only be protecting public domain material), but to encourage it with government sponsorship and resources. In this way, while authors would be free to use DRM, as I think they must be, given free speech, they would not be encouraged to do so, and would in fact face an uphill struggle if they dared. Copyright, OTOH, would be encouraged, but would also be modified so that it better served the public interest.
The way I see it is there is nothing wrong with the concept of DRM, only with the abuse of DRM. Is this a "slippery slope" argument?
No. All DRM systems I know of go beyond copyright, and so their abuses are already evident. It's really not possible to have one that didn't, since copyright is extremely flexible in certain respects (particularly fair use, which is capable of covering any use, though it need not cover any specific use). So we're already on the slippery slope; it's quite real, in this case.
In all seriousness: would you please tell me from where you think you derive a right to take something I have created from me and, say, sell it for your own profit--even if it is by copying the work rather than stealing it?
People have an inherent right of free speech. That's the right in question.
Remember, copyright is only a temporary limit on free speech. But copyright is only a limit; it's not a right to actually do anything, just to limit others. When the copyright runs out, the limit goes away, and free speech can be fully utilized. Since copyrights are artificial in nature, they need not even be granted at all.
Now, no one is suggesting that you should be forced to create works, or that you should be forced to publish them. Those are choices left to you. But if you do create it, and you do publish it, then you're relying on the goodwill of the public and their willingness to have a copyright system you like. They're not obligated to do anything for you. It's the overall public interest that is important, not you specifically. (Though it is worth noting that you're part of the public, and so even if you're an author, you can still benefit greatly from a lesser or no copyright system)
If I write a book for my friends and family to read, and one of my friends decides to copy it down and sell it out from under me (the bastard!), you're telling me this is his right? And that I need the law to tell me that he should not be permitted to do this?
Yes. And it's dubious as to whether the law should be on your side. After all, society as a whole receives a lot more benefit from the book being widespread than it does if you keep it to a small circle of people. And since copyright is costly to the public (it harms us to suffer restrictions on our rights), it should be reserved for situations where it is necessary. In your scenario, if you'd've written the book even if there was no copyright law, then it is inappropriate to give you a copyright, since you didn't need the extra incentive it provides.
The public has an inherent right of free speech. This right encompasses the right to not only say new things, but also to repeat verbatim what others have said.
Copyright is a right to prohibit others from engaging in certain speech. It is a form of censorship, and thus is the opposite of free speech. It is not the right to engage in certain speech (that's covered under free speech). It has to be granted by government, and basically involves being a thug and censoring other people's speech. It's an infringement of a right.
This is, however, sometimes tolerable. We often forgo some of our rights in order to live together in a stable society that still preserves as many of our rights as possible. In the case of copyright, the public decides, via the government, which is the servant of the public, that it has certain goals (i.e. it wants original works created, it wants derivative works created, and it wants maximal freedom with regard to those works) and that it wants to see the greatest possible net fulfillment of those goals. The natural state of affairs is for copyright to not exist (as was the case worldwide until 1710, and in most of the world until the late 19th to mid-20th centuries), and for the net fulfillment of the goals to be n. The idea is that by trading off the immediate, but not long-term, fulfillment of the second and third goals, we can get a disproportionately larger increase in the fulfillment of the first goal, such that there is a net improvement, e.g. 2n. But by and large, the way this works out is that there is an initial spike and then, quite rapidly, a lot of diminishing returns. Eventually, as more is traded away, the net benefit starts to decline, and eventually can even be less than n.
The trading away constitutes a temporary and limited sacrifice of the inherent freedom of speech of the public. This is intolerable unless it is done willingly, done in the public interest, and actually does serve the public interest as compared to not doing it.
Since the public is only interested in getting the greatest public benefit, and since copyright originates with the public, there is nothing even particularly noteworthy about copyrights expiring after a period of time. To fail to do so would be to wholly sacrifice nearly two=thirds of the public interest in exchange for only a small increase (if any) in the first third. This is because even without copyright, some original works are created, many derivative works are created, and there is total freedom as to those works. With too much copyright, more original works are created, but not many more, particularly as established copyright holders engage in rent-seeking against newcomers, few derivatives are created, and there is little if any freedom as to the works. At that point, society would be better served without copyright than with it.
Copyright, being a temporarily monopoly granted by the public, for public purposes, is easily compared to utility monopolies. In the US, most municipalities have a cable tv monopoly. Basically, the town starts out without a cable tv infrastructure. Rather than build their own, they ask a cable provider to do it. The provider is unwilling to spend so much on it if it will face competition, so it wants a monopoly. The town may be willing to offer a monopoly, but only for a few years (so as to ultimately secure the benefit of competition), and only to the minimum extent required. No one is stupid enough to give Comcast, for example, a monopoly out of the kindness of our hearts. Rather, it's done in order to exploit the provider into doing something we want. In time, the infrastructure is built, and the town can get providers to competitively bid for providing service.
So to get back to your post:
i only have a time-limited-license to profit from my own creation?
Yes. We call that time-limited license a copyright. You may have heard of them.
The changes when the US eliminated the need to register copyrighted documents were quite sufficient.
I disagree. We desperately need to fully bring back several formalities for anyone seeking a US copyright: registration, deposit, and notice. If an author cares so little about his work that he isn't willing to send in a simple form, a modest payment, and some copies of his work (and deposit is going to need to be strengthened such that it's similar to patent disclosure rules), then he certainly wouldn't care about having a copyright on the work. Let him evidence his desire for a copyright, and he can get one. In this way we will greatly strengthen the public domain with works that authors don't care about, and apparently were not incentivized to create by the promise of a copyright, without having to pay the cost of granting copyrights for those works needlessly.
As for a 20 year term, that doesn't sound too bad, but it needs to be broken down into many smaller terms of a few years each, so that authors are required to renew frequently. This also will measure when their desire for a copyright ceases, letting the work enter the public domain no later than necessary to incentivize the creation of the work to begin with. E.g. if an author stops bothering to renew after eight years, then the work enters the public domain much earlier than it would if the author didn't care but didn't have to renew. Of course, the actual maximum length ought to be determined by careful studies into what best serves the public interest, rather than wild-ass guesses.
Though the material may be out of copyright, the trademarked images in that material remains covered and Disney may use legal means to prevent others from distributing trademarked though uncopyrighted materials.
That's actually a common myth. At a minimum, when the copyright covering Mickey Mouse expires, the trademark will be lost as well, at least with regard to copies of creative works, e.g. movies, comics, etc. The Shredded Wheat case, while it dealt with a patent and a trademark, rather than a copyright and a trademark, is an excellent example of how and why this would work. The gist of it is that when the copyright runs out, the copyright holder no longer has exclusivity over the use of the character. Since it's non-exclusive, the trademark is no longer functional as a source identifier. That makes it generic, and generic marks are unprotectable.
I'm over 40 and have 2 children. I write but haven't made a penny at it. Much as I enjoy writing, there is definitely an incentive to "publish" in knowing that if my work becomes popular late in my life (or just after) then my kids will benefit.
Parents want to provide for their children.
Then you are a terribly irresponsible parent. As a copyright lawyer, let me point out to you that the odds of your work ever being even slightly valuable economically, are very very small. And then, the work typically is only worth something immediately upon publication in a given medium, with the value rapidly declining (roughly 90% of the lifetime value will be realized in under a year, sometimes in just a few weeks). The odds of creating a work with lasting value, or value long after publication, are astronomical.
Frankly, you would have better odds of getting money with which to provide for your family by buying lottery tickets.
If you want to be a good parent, you will have a job, you will carefully invest money, you will have insurance policies, and so forth. You will support government programs that would help as well, should your family hit bad times. These are ordinary, conventional methods of providing for your family that do not rely on tremendous amounts of luck. But they actually work. Better yet, they work for everyone, and not just authors.
Copyright is probably one of the worst systems imaginable for helping 'widows and orphans' since it is just so damn bad at actually doing it. If you want something that works, look elsewhere. If you want to daydream, and ignore your responsibilities to your family, then by all means, pretend that copyright will ever mean something to them.
And so long as we're dealing with rational actors, long copyrights aren't an incentive. I don't care for the idea of a copyright system that is meant to appeal to irrational people.
You're largely thinking of criminal trials, in which the prosecution has the burden of proving their case beyond a reasonable doubt (and thus can be defeated if they can't manage, or if the defendant can rebut with a reasonable doubt).
This is a civil case, in which the plaintiff has the burden of proving their case by the preponderance of the evidence. Which is to say, in order for them to win, they have to show that the defendant is more probably liable than not, even if this is a 51%-49% matter. While the plaintiff still has the burden of making his case or else the defendant wins by default (which is all that the presumed innocent rule means), it's a lot easier for the plaintiff. The defendant has a harder time then, in that if the plaintiff can make his prima facie case, the defendant has to show that his side is what's most likely. Mere reasonable doubts are not sufficient.
What you're forgetting is that this is an attempt to game the system by being clever. The problem with it is that the courts are packed with people who are every bit as smart or smarter than you. These people can make good arguments against you, and often are the ones with the discretion to agree or disagree with you; you are relying on them going along with you in order to make your scheme work. These are people, they are not computers. They do not act mechanically, and thus are not as easy to fool as a computer might be. They can look at the big picture.
Thus, when you serve a torrented file, even though a downloader might only download a single byte from you, you participated in what was, overall, an infringement that was by no means de minimis. And you'll be on the hook for it. Even attempting your inane argument will only make the court upset with you for trying to be clever with them.
Both US & Canadians pay a fee on every piece of recordable digital media (DAT, CDs, & DVDs in the US. HDs also in CN IIRC)
I can't speak as to Canada, but you're quite wrong with regard to the US. You're thinking of AHRA, which only covers certain media, and is only a shield under quite limited circumstances.
If I have already paid to cover their loss, then they can claim no damages.
That's irrelevant to the AHRA argument, which also has no connection to fair use at all.
I suggest you keep your day job and avoid playing armchair lawyer. You're awful at it.
So facts before a court of law become probabilies.
No. But the rule is whatever the fact finder feels is the most likely set of facts out of what he has been presented with, is what happened. For a given computer, odds are the primary user is the one who would've used it to infringe. If the defendant thinks that the plaintiff's evidence is enough to make the case on, it is up to him to rebut the evidence with evidence of his own that helps him, such as evidence that the computer was infested with malware that allowed for outsiders to control it. Then the fact finder can consider the evidence of both sides, and make their decision.
Clearly, you think the RIAA witnesses and evidence aren't trustworthy. If you were on a jury, it would be your perogative to disbelieve them (but not for irrational reasons, e.g. 'all copyright holders lie'). But given what you did believe, you'd be required to determine what probably happened, and thus, as far as the courts would be concerned, what did happen.
then the only solution is that they fabricated false evidence
Of course, sometimes people make mistakes. A good rule of thumb is to not assume things happen out of malice when they can be adequately explained by stupidity.
In other words I do not need to pay royalties to play the first 4 bars of some song. It's part of the fair use portion of copyright law.
That is untrue. Fair use permits for fair uses, regardless of length. Length might be a factor (using only a minor part of a work is more likely to be fair than using all of, or all of the important part of, a work) but length is not determinative of the issue. There is no blanket exception for the first four bars, or so many words, or any other nonsense.
So in theory, since torrents never serve the whole thing, the technical mechanism of serving files via torrents may sidestep copyright rules.
That's about as stupid as arguing that a court lacks jurisdiction based on the flag in the courtroom. You would have no chance of success with that argument, and since it's a legal argument, not a factual one, a jury would never even hear it. The judge would kick it out instantly, it is so laughably bad.
The clause has a structure to it: copyrights come first, and cover science, authors, and writings, and patents come second, and cover useful arts, inventors, and discoveries.
Copyrights don't cover utility. In fact, for some works, usefulness can cause there to not be a copyright at all. While utility is an essential requirement for patentability.
The term 'art' still is used with regard to technology, e.g. prior art, persons having ordinary skill in the art, state of the art, etc.
And simply looking up the words in the unabridged OED in order to learn what they meant back in the late 18th century reveals that science basically meant general knowledge, while the useful arts would be technical fields.
FYI, copyright promotes the progress of science. It's patents that promote the useful arts. It seems odd, I know, but the Constitution was written in 18th century English, after all, and ours is a very fluid language.
The cultural enterprise is expensive, always has been.You don't get free.
And yet, that still doesn't make it moral to charge and immoral for it to be free. You're just making a utilitarian argument -- that more works will be created and published if revenue can somehow be generated from them -- and while I agree that that might be possible (there are some important variables that can produce a wide range of outcomes), it still means that infringement is merely counterproductive rather than immoral.
But your argument is bogus on its face.
Given that you appear to be making the same argument, I fail to see the bogosity. And given that my argument was limited to noting the amorality of copyright, and had nothing to do with P2P in particular (I didn't even mention the word), you seem to be arguing at a straw man.
First, it isn't actually true that you have to defend a trademark in every possible instance in order to avoid losing it. A trademark is a source identifier, first and foremost. If someone else's use of the mark isn't harmful to the markholder, then there's simply no need to do anything about it. Going further is typically only done either out of ass-covering, or an attempt to expand the trademark further than it can legitimately go.
Second, I predict that this will fail. As I said, a trademark is basically a source identifier. That is, goods or services marked with the mark must originate from the same source. For example, cans marked as 'COCA-COLA' all ultimately come from the Coke company; you can rely on it, and can assume a consistent level of quality (whether good or bad). (n.b. it doesn't matter if you know who the source is, just that there's a particular source) But cans merely marked with 'SODA' could come from anyplace, and differ significantly. If a mark doesn't serve as a source identifier, it's not a mark. What's important is the perception of the market. If people think the mark doesn't function identify a particular source, and that the marked good can come from any old place, then they end up being right. This is how a good mark becomes generic: it describes the good, which can be from any source, rather than a good from a particular source. E.g. if all photocopiers are xerox machines, regardless of who made them, the XEROX mark is lost.
Here, we're considering the term 'PODCAST.' Does anyone think that they must be involved with Apple? The mere use of 'POD' isn't enough. What matters is the connection that people draw. AFAICT, no one thinks that it's anything but generic, nor does anyone use it in a nongeneric fashion. It doesn't endanger the IPOD trademark, because who really thinks that iPods don't come from Apple based on podcasts? They have their own problems with the threat of genericide, with people calling all portable mp3 players iPods, but that's not the issue here.
When the moral right to infringe on another's copyright is elevated to the same status as the fight against the Ku Klux Klan... I know I am hearing the voice of the eternal adolescent.
The trick is, it works the other way too. Enforcing copyrights, or having copyright law is not moral either. Copyright law is basically utilitarian, devoid of any morality at all. It is similar to zoning laws, laws regarding parking meters, etc. It's an amoral law, which we only have for useful purposes.
Indeed, if there's any kind of morality, it's on the side of the infringers, who help to spread, preserve, and use works, which are all good things. The anti-infringers are engaged in gatekeeping, and I can't see how it's moral to restrict knowledge and the pleasure of using works to only those that can pay. I can see how it might be practical to, in the big picture, but it's certainly not moral.
It is the thought of "something for nothing" that drives the user
Yes, it's greed. But it's greed that drives copyright holders to exploit their copyrights so that they can make money from their works. So far as that goes, I don't think there's any real difference between the two.
Actually this would be called Sexually/Verbally assaulting those people.
No, because there are certain elements needed for conduct to be assault, and just randomly yelling the word 'fuck' won't suffice. It's not sexual harassment either, since most of the law having to do with that is either ordinary torts like assault or battery, or is specific to certain environments like a workplace. Some random guy in a public park is not going to qualify. The best you can hope for is some kind of emotional distress tort, but again, if the language is merely foul, you're out of luck.
That would result in severe sanctions for everyone involved, and would result in the case becoming void once the scheme was discovered. I strongly doubt it would happen, particularly since there's no need: plaintiffs in copyright cases have an extremely strong position to begin with.
If you go into a public park on a nice summer day, set up a concert quality sound system (read: very loud, but not that good...) and proceed to shout, "Fuck!" into the microphone so everyone in the park is assaulted by your curse-wording antics, I'm pretty sure you'll be asked to leave (and maybe fined or even arrested.)
At most, it's only the sound system that would be an issue here. If you just went around screaming fuck at people, you'd be well within your rights to do so. People who don't want to run the risk of being offended shouldn't leave their homes. In public, people may not act as you'd like them to, but they have a right to do that. You might want to read Cohen v. California. Also, mere speech isn't assault.
In this case, I think that the biggest problem is that, how can the RIAA prove that it's being "harmed?"
Assuming that they're seeking statutory damages, and that they are able to get them, both of which are very likely, the law does not require that they be harmed, or that they prove that they were harmed.
No, that's evidence. Juries are intended to engage in conjecture. After all, they're given two different stories of what happened, a variety of facts, many of which might disagree with one another, and are told to sit down and figure out what they think really happened. Figuring out the true facts is precisely what juries are meant to do.
Conjecture would be if a witness speculated as to what happened, instead of simply saying what he knew and letting the jury draw their own conclusions. Showing the screenshots as pretty much the sole evidence of the act of infringement isn't conjecture. Just weak evidence, which the jury is free to believe, or not believe, or only partially believe, as they see fit.
Slashdot Mirror
First of all, it's a better option in terms of electronic searching than just having paper editions of a book out.
Yes, but which is better overall? A book that you own, can use without reference to any sort of contract or DRM, can resell, etc. but which isn't electronically searchable, or a book that can be searched, but is also quite limited (perhaps you can only search so many times per day) and which you have to pay for again and again and again?
What I was saying was that while the searchability is great, I don't think that it's worth the downside that comes with DRM.
Yeah, book publishers are going to really eager to share their electronic version of the book with what you mentioned above.
Given a choice between not publishing at all, publishing with DRM and no copyright, and without DRM and with a copyright, I think they'll opt for the third option. Some authors might not publish, true, but I think the loss of their work is made up for by the gains with regard to other works. Remember: the public benefits not merely from having more works, but from having more freedom with regards to works. The ones that opt for DRM are no worry if their works are in the public domain, since there's always some manner of hole present in the DRM and since so many competitors and users would have an incentive to attack it.
The trick is to push for what you want, and to realize there will be some acceptable losses. I mean, if we offered million-year-long copyright, and the law required royalties to be paid whenever someone even mentioned the book by name, I'm sure more people would write. We seem to have decided that not doing that is worthwhile, even though some people haven't published. So what's so magically different about the current system that precludes us from at least considering reducing copyright, losing some authors, gaining some freedom, and seeing if it makes us better off when we compare the losses against the gains?
Yes, DRM is morally disturbing and all but if it's not there we will never see an electronic library ever.
No, I disagree. We will see one. But not if we sit on our asses and wait for publishers to offer us one on a silver platter. If this is what you want, you have to figure out how to force publishers to offer it, using copyright as both carrot and stick, or how to economically and lawfully put your own together if they don't opt into it.
Nobody likes DRM but it's neceassary evil.
It is not necessary; it's just evil.
Now, if there was standard DRM then books would be released electroically that you could search through or have search engines search through.
Actually, this is unlikely. And in any event, the benefit of making the book searchable is dubious given that the DRM could be used to limit your ability to search it, that searching isn't really important for some books (e.g. most works of fiction), and that the DRM could be set up so that it cost you money every time you used the book in particular ways, or at all.
I think that a better solution would be to a) prohibit authors et al from having copyrights if they use DRM at all, b) not just legalize circumventing DRM, but have the government help (with funding, coordination, and dissemination of the uncopyrightable plaintext), and c) to make some other alterations to copyright, such as beefing up deposit requirements (so that electronic copies are on file with the Library of Congress) and shortening term lengths (so that the book will enter the public domain quite rapidly, if the author et al even bothers to pursue copyright to begin with).
Don't be such a defeatist. Stand up for a change, and fight for what you want!
But how serious is this? Copyright doesn't expire for like 100 years.
But you forget: copyrights are limited in scope. For example, it is not an infringement of copyright to rent a DVD you own to someone else. If DRM interferes with this, it's no different than DRM interfering with something that wouldn't infringe copyright simply because the copyright has expired. The main limitation we're concerned with is fair use, because literally any use, under the right circumstances, is a fair one. (And conversely, no use, under the wrong circumstances, is fair)
What is the likelihood that today's DRM will still be effective then, and that the DMCA and similar laws will be unchanged?
Who cares? Copyright is a very forward-looking law. It is meant to assure a net public benefit in the future. If this is uncertain, then the law is not a good one.
Imagine if a town issued bonds to build a water tower, but they wouldn't promise that the bonds would ever mature. Maybe they would, maybe they wouldn't. Without this certainty, no one would be stupid enough to buy the bonds, and the town wouldn't raise the money for their project.
DRM is quite similar, except that people willing to tolerate it are in fact being foolish enough to do something else, like throw money away in the example above.
That's true only if "fair use" can't be specifically defined.
And it can't be. That's the whole point of fair use: it protects uses that are fair, given the circumstances involved. It is impossible to say that making backup copies, for example, is a fair use. In some circumstances it might be. In others, it might not be. A court is capable of looking at the facts and making a decision. And other courts might disagree given the same facts, it's such an infamously nebulous concept. This is routine. But no DRM system will ever be able to do what a court does.
But by saying "fair use" can't be specifically defined you're saying: "Hey copyright holders! You can't enforce your laws because you don't know if 'fair use' for me means 10 copies or 1,000 copies or 1,000,000 copies."
No, and now you're just being an idiot. Fair use can't be defined. But if a copyright holder thinks that a particular use is not fair, and you think it is fair, then you go to a court, and they make the final decision that both of you are stuck with. And so it is perfectly easy to enforce the law.
Not to mention the argument that you are agreeing to their terms of purchace, and they can tell you to use whatever device they damn well please. Again, the free market agument comes into play.
Copyright already deals with a government-granted monopoly, and artificial scarcity, so the idea of a free market has flown right out the window from the get-go. As for terms of purchase, let's remember that the law of sales, contract law, copyright law, etc. are laws, and thus may be changed. Some terms may simply be unenforcable according to the law, either substantively (i.e. a particular term is objectionable) or procedurally (i.e. the method by which the term was put forth wasn't the correct one). And others that are enforced now, may become unenforcable in the future. Where there is a conflict between what the law says, and what DRM says, I'm going to side with the law.
But is there anyone out there that is cool with copyrights, but thinks DRM is bad?
I like the general idea of copyrights, and I support copyright laws that actually accomplish the purpose of copyright laws (viz. to promote the progress of science), particularly those that do a good job of it.
And I despise DRM.
Copyright is a utilitarian system meant to serve the public interest. It may be altered by legislation, interpreted by the courts, and stricken down when unconstitutional. It is limited in duration and in scope. It only applies to some subject matter. Copyrights cannot be enforced unless the appropriate parties take affirmative action to do so, which at times, they may not wish to do. Copyright cannot be used against the copyright holder. Copyright is optional, and need not exist at all.
DRM is not like that in any way.
DRM is meant to serve the interests of publishers and authors, regardless of whether they hold copyrights or not. DRM systems are privately implemented, and generally exist independently of their implementors (e.g. DVDs are static in nature), and so are resistant to change stemming from government at the behest of the people. DRM is permanent in duration, and is inescapably overexpansive in scope as compared to copyright. DRM applies to any subject matter it is used in relation to. DRM systems effectively enforce themselves, even when they do so beneath the notice of those that implemented them. DRM can interfere with authors that use it (e.g. if you lose your master and need to use a DRM-encumbered copy as a new master, the DRM might interfere with you, especially if you're on a tight budget). It is probably impossible to legislate DRM away.
But do they not have a right to protect their intellectual property?
Taking your underlying meaning, yes. But those rights are only what we give them, and should only be given when it suits our purposes to do so.
DRM is utterly hostile to the public. Since copyright is a creation of the public, granted to authors when it serves the public to do so, we need only be cautious to avoid it from being abused, granted unwisely, and harming the public. DRM is harder to control.
Ultimately, I think the best tactic is to 1) make copyright and DRM mutually exclusive, such that if an author opts for one, he must forgo the other, and 2) to not only make it lawful to break DRM systems (which would, per #1, only be protecting public domain material), but to encourage it with government sponsorship and resources. In this way, while authors would be free to use DRM, as I think they must be, given free speech, they would not be encouraged to do so, and would in fact face an uphill struggle if they dared. Copyright, OTOH, would be encouraged, but would also be modified so that it better served the public interest.
The way I see it is there is nothing wrong with the concept of DRM, only with the abuse of DRM. Is this a "slippery slope" argument?
No. All DRM systems I know of go beyond copyright, and so their abuses are already evident. It's really not possible to have one that didn't, since copyright is extremely flexible in certain respects (particularly fair use, which is capable of covering any use, though it need not cover any specific use). So we're already on the slippery slope; it's quite real, in this case.
In all seriousness: would you please tell me from where you think you derive a right to take something I have created from me and, say, sell it for your own profit--even if it is by copying the work rather than stealing it?
People have an inherent right of free speech. That's the right in question.
Remember, copyright is only a temporary limit on free speech. But copyright is only a limit; it's not a right to actually do anything, just to limit others. When the copyright runs out, the limit goes away, and free speech can be fully utilized. Since copyrights are artificial in nature, they need not even be granted at all.
Now, no one is suggesting that you should be forced to create works, or that you should be forced to publish them. Those are choices left to you. But if you do create it, and you do publish it, then you're relying on the goodwill of the public and their willingness to have a copyright system you like. They're not obligated to do anything for you. It's the overall public interest that is important, not you specifically. (Though it is worth noting that you're part of the public, and so even if you're an author, you can still benefit greatly from a lesser or no copyright system)
If I write a book for my friends and family to read, and one of my friends decides to copy it down and sell it out from under me (the bastard!), you're telling me this is his right? And that I need the law to tell me that he should not be permitted to do this?
Yes. And it's dubious as to whether the law should be on your side. After all, society as a whole receives a lot more benefit from the book being widespread than it does if you keep it to a small circle of people. And since copyright is costly to the public (it harms us to suffer restrictions on our rights), it should be reserved for situations where it is necessary. In your scenario, if you'd've written the book even if there was no copyright law, then it is inappropriate to give you a copyright, since you didn't need the extra incentive it provides.
are you serious? that must be a joke.
No, that's absolutely correct.
Look at it this way:
The public has an inherent right of free speech. This right encompasses the right to not only say new things, but also to repeat verbatim what others have said.
Copyright is a right to prohibit others from engaging in certain speech. It is a form of censorship, and thus is the opposite of free speech. It is not the right to engage in certain speech (that's covered under free speech). It has to be granted by government, and basically involves being a thug and censoring other people's speech. It's an infringement of a right.
This is, however, sometimes tolerable. We often forgo some of our rights in order to live together in a stable society that still preserves as many of our rights as possible. In the case of copyright, the public decides, via the government, which is the servant of the public, that it has certain goals (i.e. it wants original works created, it wants derivative works created, and it wants maximal freedom with regard to those works) and that it wants to see the greatest possible net fulfillment of those goals. The natural state of affairs is for copyright to not exist (as was the case worldwide until 1710, and in most of the world until the late 19th to mid-20th centuries), and for the net fulfillment of the goals to be n. The idea is that by trading off the immediate, but not long-term, fulfillment of the second and third goals, we can get a disproportionately larger increase in the fulfillment of the first goal, such that there is a net improvement, e.g. 2n. But by and large, the way this works out is that there is an initial spike and then, quite rapidly, a lot of diminishing returns. Eventually, as more is traded away, the net benefit starts to decline, and eventually can even be less than n.
The trading away constitutes a temporary and limited sacrifice of the inherent freedom of speech of the public. This is intolerable unless it is done willingly, done in the public interest, and actually does serve the public interest as compared to not doing it.
Since the public is only interested in getting the greatest public benefit, and since copyright originates with the public, there is nothing even particularly noteworthy about copyrights expiring after a period of time. To fail to do so would be to wholly sacrifice nearly two=thirds of the public interest in exchange for only a small increase (if any) in the first third. This is because even without copyright, some original works are created, many derivative works are created, and there is total freedom as to those works. With too much copyright, more original works are created, but not many more, particularly as established copyright holders engage in rent-seeking against newcomers, few derivatives are created, and there is little if any freedom as to the works. At that point, society would be better served without copyright than with it.
Copyright, being a temporarily monopoly granted by the public, for public purposes, is easily compared to utility monopolies. In the US, most municipalities have a cable tv monopoly. Basically, the town starts out without a cable tv infrastructure. Rather than build their own, they ask a cable provider to do it. The provider is unwilling to spend so much on it if it will face competition, so it wants a monopoly. The town may be willing to offer a monopoly, but only for a few years (so as to ultimately secure the benefit of competition), and only to the minimum extent required. No one is stupid enough to give Comcast, for example, a monopoly out of the kindness of our hearts. Rather, it's done in order to exploit the provider into doing something we want. In time, the infrastructure is built, and the town can get providers to competitively bid for providing service.
So to get back to your post:
i only have a time-limited-license to profit from my own creation?
Yes. We call that time-limited license a copyright. You may have heard of them.
The changes when the US eliminated the need to register copyrighted documents were quite sufficient.
I disagree. We desperately need to fully bring back several formalities for anyone seeking a US copyright: registration, deposit, and notice. If an author cares so little about his work that he isn't willing to send in a simple form, a modest payment, and some copies of his work (and deposit is going to need to be strengthened such that it's similar to patent disclosure rules), then he certainly wouldn't care about having a copyright on the work. Let him evidence his desire for a copyright, and he can get one. In this way we will greatly strengthen the public domain with works that authors don't care about, and apparently were not incentivized to create by the promise of a copyright, without having to pay the cost of granting copyrights for those works needlessly.
As for a 20 year term, that doesn't sound too bad, but it needs to be broken down into many smaller terms of a few years each, so that authors are required to renew frequently. This also will measure when their desire for a copyright ceases, letting the work enter the public domain no later than necessary to incentivize the creation of the work to begin with. E.g. if an author stops bothering to renew after eight years, then the work enters the public domain much earlier than it would if the author didn't care but didn't have to renew. Of course, the actual maximum length ought to be determined by careful studies into what best serves the public interest, rather than wild-ass guesses.
Though the material may be out of copyright, the trademarked images in that material remains covered and Disney may use legal means to prevent others from distributing trademarked though uncopyrighted materials.
That's actually a common myth. At a minimum, when the copyright covering Mickey Mouse expires, the trademark will be lost as well, at least with regard to copies of creative works, e.g. movies, comics, etc. The Shredded Wheat case, while it dealt with a patent and a trademark, rather than a copyright and a trademark, is an excellent example of how and why this would work. The gist of it is that when the copyright runs out, the copyright holder no longer has exclusivity over the use of the character. Since it's non-exclusive, the trademark is no longer functional as a source identifier. That makes it generic, and generic marks are unprotectable.
I'm over 40 and have 2 children. I write but haven't made a penny at it. Much as I enjoy writing, there is definitely an incentive to "publish" in knowing that if my work becomes popular late in my life (or just after) then my kids will benefit.
Parents want to provide for their children.
Then you are a terribly irresponsible parent. As a copyright lawyer, let me point out to you that the odds of your work ever being even slightly valuable economically, are very very small. And then, the work typically is only worth something immediately upon publication in a given medium, with the value rapidly declining (roughly 90% of the lifetime value will be realized in under a year, sometimes in just a few weeks). The odds of creating a work with lasting value, or value long after publication, are astronomical.
Frankly, you would have better odds of getting money with which to provide for your family by buying lottery tickets.
If you want to be a good parent, you will have a job, you will carefully invest money, you will have insurance policies, and so forth. You will support government programs that would help as well, should your family hit bad times. These are ordinary, conventional methods of providing for your family that do not rely on tremendous amounts of luck. But they actually work. Better yet, they work for everyone, and not just authors.
Copyright is probably one of the worst systems imaginable for helping 'widows and orphans' since it is just so damn bad at actually doing it. If you want something that works, look elsewhere. If you want to daydream, and ignore your responsibilities to your family, then by all means, pretend that copyright will ever mean something to them.
And so long as we're dealing with rational actors, long copyrights aren't an incentive. I don't care for the idea of a copyright system that is meant to appeal to irrational people.
You're largely thinking of criminal trials, in which the prosecution has the burden of proving their case beyond a reasonable doubt (and thus can be defeated if they can't manage, or if the defendant can rebut with a reasonable doubt).
This is a civil case, in which the plaintiff has the burden of proving their case by the preponderance of the evidence. Which is to say, in order for them to win, they have to show that the defendant is more probably liable than not, even if this is a 51%-49% matter. While the plaintiff still has the burden of making his case or else the defendant wins by default (which is all that the presumed innocent rule means), it's a lot easier for the plaintiff. The defendant has a harder time then, in that if the plaintiff can make his prima facie case, the defendant has to show that his side is what's most likely. Mere reasonable doubts are not sufficient.
Actually, it's not quite as stupid as it sounds.
It's actually stupider than it sounds.
What you're forgetting is that this is an attempt to game the system by being clever. The problem with it is that the courts are packed with people who are every bit as smart or smarter than you. These people can make good arguments against you, and often are the ones with the discretion to agree or disagree with you; you are relying on them going along with you in order to make your scheme work. These are people, they are not computers. They do not act mechanically, and thus are not as easy to fool as a computer might be. They can look at the big picture.
Thus, when you serve a torrented file, even though a downloader might only download a single byte from you, you participated in what was, overall, an infringement that was by no means de minimis. And you'll be on the hook for it. Even attempting your inane argument will only make the court upset with you for trying to be clever with them.
Both US & Canadians pay a fee on every piece of recordable digital media (DAT, CDs, & DVDs in the US. HDs also in CN IIRC)
I can't speak as to Canada, but you're quite wrong with regard to the US. You're thinking of AHRA, which only covers certain media, and is only a shield under quite limited circumstances.
If I have already paid to cover their loss, then they can claim no damages.
That's irrelevant to the AHRA argument, which also has no connection to fair use at all.
I suggest you keep your day job and avoid playing armchair lawyer. You're awful at it.
So facts before a court of law become probabilies.
No. But the rule is whatever the fact finder feels is the most likely set of facts out of what he has been presented with, is what happened. For a given computer, odds are the primary user is the one who would've used it to infringe. If the defendant thinks that the plaintiff's evidence is enough to make the case on, it is up to him to rebut the evidence with evidence of his own that helps him, such as evidence that the computer was infested with malware that allowed for outsiders to control it. Then the fact finder can consider the evidence of both sides, and make their decision.
Clearly, you think the RIAA witnesses and evidence aren't trustworthy. If you were on a jury, it would be your perogative to disbelieve them (but not for irrational reasons, e.g. 'all copyright holders lie'). But given what you did believe, you'd be required to determine what probably happened, and thus, as far as the courts would be concerned, what did happen.
then the only solution is that they fabricated false evidence
Of course, sometimes people make mistakes. A good rule of thumb is to not assume things happen out of malice when they can be adequately explained by stupidity.
In other words I do not need to pay royalties to play the first 4 bars of some song. It's part of the fair use portion of copyright law.
That is untrue. Fair use permits for fair uses, regardless of length. Length might be a factor (using only a minor part of a work is more likely to be fair than using all of, or all of the important part of, a work) but length is not determinative of the issue. There is no blanket exception for the first four bars, or so many words, or any other nonsense.
So in theory, since torrents never serve the whole thing, the technical mechanism of serving files via torrents may sidestep copyright rules.
That's about as stupid as arguing that a court lacks jurisdiction based on the flag in the courtroom. You would have no chance of success with that argument, and since it's a legal argument, not a factual one, a jury would never even hear it. The judge would kick it out instantly, it is so laughably bad.
That's thoroughly incorrect too.
And?
The clause has a structure to it: copyrights come first, and cover science, authors, and writings, and patents come second, and cover useful arts, inventors, and discoveries.
Copyrights don't cover utility. In fact, for some works, usefulness can cause there to not be a copyright at all. While utility is an essential requirement for patentability.
The term 'art' still is used with regard to technology, e.g. prior art, persons having ordinary skill in the art, state of the art, etc.
And simply looking up the words in the unabridged OED in order to learn what they meant back in the late 18th century reveals that science basically meant general knowledge, while the useful arts would be technical fields.
FYI, copyright promotes the progress of science. It's patents that promote the useful arts. It seems odd, I know, but the Constitution was written in 18th century English, after all, and ours is a very fluid language.
The cultural enterprise is expensive, always has been.You don't get free.
And yet, that still doesn't make it moral to charge and immoral for it to be free. You're just making a utilitarian argument -- that more works will be created and published if revenue can somehow be generated from them -- and while I agree that that might be possible (there are some important variables that can produce a wide range of outcomes), it still means that infringement is merely counterproductive rather than immoral.
But your argument is bogus on its face.
Given that you appear to be making the same argument, I fail to see the bogosity. And given that my argument was limited to noting the amorality of copyright, and had nothing to do with P2P in particular (I didn't even mention the word), you seem to be arguing at a straw man.
First, it isn't actually true that you have to defend a trademark in every possible instance in order to avoid losing it. A trademark is a source identifier, first and foremost. If someone else's use of the mark isn't harmful to the markholder, then there's simply no need to do anything about it. Going further is typically only done either out of ass-covering, or an attempt to expand the trademark further than it can legitimately go.
Second, I predict that this will fail. As I said, a trademark is basically a source identifier. That is, goods or services marked with the mark must originate from the same source. For example, cans marked as 'COCA-COLA' all ultimately come from the Coke company; you can rely on it, and can assume a consistent level of quality (whether good or bad). (n.b. it doesn't matter if you know who the source is, just that there's a particular source) But cans merely marked with 'SODA' could come from anyplace, and differ significantly. If a mark doesn't serve as a source identifier, it's not a mark. What's important is the perception of the market. If people think the mark doesn't function identify a particular source, and that the marked good can come from any old place, then they end up being right. This is how a good mark becomes generic: it describes the good, which can be from any source, rather than a good from a particular source. E.g. if all photocopiers are xerox machines, regardless of who made them, the XEROX mark is lost.
Here, we're considering the term 'PODCAST.' Does anyone think that they must be involved with Apple? The mere use of 'POD' isn't enough. What matters is the connection that people draw. AFAICT, no one thinks that it's anything but generic, nor does anyone use it in a nongeneric fashion. It doesn't endanger the IPOD trademark, because who really thinks that iPods don't come from Apple based on podcasts? They have their own problems with the threat of genericide, with people calling all portable mp3 players iPods, but that's not the issue here.
When the moral right to infringe on another's copyright is elevated to the same status as the fight against the Ku Klux Klan... I know I am hearing the voice of the eternal adolescent.
The trick is, it works the other way too. Enforcing copyrights, or having copyright law is not moral either. Copyright law is basically utilitarian, devoid of any morality at all. It is similar to zoning laws, laws regarding parking meters, etc. It's an amoral law, which we only have for useful purposes.
Indeed, if there's any kind of morality, it's on the side of the infringers, who help to spread, preserve, and use works, which are all good things. The anti-infringers are engaged in gatekeeping, and I can't see how it's moral to restrict knowledge and the pleasure of using works to only those that can pay. I can see how it might be practical to, in the big picture, but it's certainly not moral.
It is the thought of "something for nothing" that drives the user
Yes, it's greed. But it's greed that drives copyright holders to exploit their copyrights so that they can make money from their works. So far as that goes, I don't think there's any real difference between the two.
Actually this would be called Sexually/Verbally assaulting those people.
No, because there are certain elements needed for conduct to be assault, and just randomly yelling the word 'fuck' won't suffice. It's not sexual harassment either, since most of the law having to do with that is either ordinary torts like assault or battery, or is specific to certain environments like a workplace. Some random guy in a public park is not going to qualify. The best you can hope for is some kind of emotional distress tort, but again, if the language is merely foul, you're out of luck.
That would result in severe sanctions for everyone involved, and would result in the case becoming void once the scheme was discovered. I strongly doubt it would happen, particularly since there's no need: plaintiffs in copyright cases have an extremely strong position to begin with.
If you go into a public park on a nice summer day, set up a concert quality sound system (read: very loud, but not that good...) and proceed to shout, "Fuck!" into the microphone so everyone in the park is assaulted by your curse-wording antics, I'm pretty sure you'll be asked to leave (and maybe fined or even arrested.)
At most, it's only the sound system that would be an issue here. If you just went around screaming fuck at people, you'd be well within your rights to do so. People who don't want to run the risk of being offended shouldn't leave their homes. In public, people may not act as you'd like them to, but they have a right to do that. You might want to read Cohen v. California. Also, mere speech isn't assault.
In this case, I think that the biggest problem is that, how can the RIAA prove that it's being "harmed?"
Assuming that they're seeking statutory damages, and that they are able to get them, both of which are very likely, the law does not require that they be harmed, or that they prove that they were harmed.
No, that's evidence. Juries are intended to engage in conjecture. After all, they're given two different stories of what happened, a variety of facts, many of which might disagree with one another, and are told to sit down and figure out what they think really happened. Figuring out the true facts is precisely what juries are meant to do.
Conjecture would be if a witness speculated as to what happened, instead of simply saying what he knew and letting the jury draw their own conclusions. Showing the screenshots as pretty much the sole evidence of the act of infringement isn't conjecture. Just weak evidence, which the jury is free to believe, or not believe, or only partially believe, as they see fit.