There are two kinds of distinct creative work involved with music. The first is the music itself, i.e. the arrangement of notes and/or lyrics. The other is a sound recording of a particular performance of that music, e.g. a tape recording. Music has long been copyrightable, and usually this applied to the sheet music. A recording of a musician performing that music wasn't copyrightable in itself. Congress decided to grant copyrights for sound recordings in the 70's. However, they limited that copyright so that it didn't apply to the radio: a radio station was free to play a sound recording over the air, and pay royalties to the songwriter, but not to the performer. This is still the case, in fact. But much more recently, Congress decided to grant a copyright in the sound recording that applied to digital transmissions. This meant that now, unlike for terrestrial radio, things like Internet radio would have to pay a royalty not just to the songwriter, but also to the performer.
As is the case for music, the royalty is under a statutory license. That is, rather than have everyone suffer the huge headaches and transactional costs of negotiating rights for each piece of music individually, everyone can pay a fee set forth by law and get a license automatically, regardless even of whether the copyright holder agrees. (Because his copyright doesn't apply to people who pay the statutory license; that's how the law is written) Everyone is free to make their own arrangements, but in practice few bother to do so since it is really a huge pain in the ass.
The Copyright Office was empowered to perform certain administrative tasks related to this, and one thing that was done was to name designated agents to whom the statutory license royalty can be paid so that the payor will be in compliance with the law. Currently, the only one is SoundExchange.
If you have a separate agreement with the relevant copyright holders, you don't need to pay SoundExchange. If you are playing a recording to which you are the copyright holder, or a recording which is in the public domain, you don't need to pay SoundExchange.
Is the RIAA that powerful that they can manage to dictate legislation that way?
Yes. The industries involved in copyright matters have been dictating legislation from the beginning of the 20th century on. This is nothing new.
If there is no incentive, financial, to create then many things won't be created, which is a greater theft to the public.
Setting aside that there are plenty of incentives unrelated to copyright, an author does no disservice to the public by failing to create and publish a given work. It's good if he does it, but it's not theft if he doesn't. You're saying something akin to that I stole $5 from you because I didn't give you $5 as a gift.
No, I get why he was using the clips. I disagree as to the importance of this particular video. But what I was saying was that the clips are really annoying. Themovieusesanotherclipforeachword. I found this unpleasant. I think it would've worked better as a dialogue. Let there be a narrator who carries most of the weight, with the characters responding to him with clips that consist of whole sentences, rather than single words. Right now, it's just unwatchably bad. The premise is fine, it's the execution of it that I dislike. It's like the video equivalent of a ransom note.
How do you know that? I was under the impression that in US law there is no statutory line: it's decided by the courts on a case-by-case basis.
Generally, this is not true. There are two bodies of law in the US, statutory law and common law. The statutory law is written law created by legislative bodies, such as Congress, state legislatures, administrative agencies, etc. The common law is somewhat more nebulous, and is created by the courts. Where they are in conflict, the statutory law overrides the common law. Courts routinely must interpret the law, whether statutory or common, in order to determine precisely what the language of the law actually means. There are often disagreements as to the meaning of the law, whether it is acceptable to look outside the law for clues as to the meaning (e.g. a contemporaneous statement by the lawmaker that goes 'What I meant, when I drafted this law was...,' if so what sources may be considered, whether a given possible meaning makes sense in the context of other laws, etc. To help settle these disagreements, courts will look to what other courts have interpreted the laws to mean in the past. This is useful for several reasons, not the least of which is consistency, i.e. if case A is like case B, a court will generally behave in deciding case A in the same way that it did in deciding case B. There are two parallel court systems: state courts, and federal courts. They don't outrank one another, save in certain circumstances (i.e. the federal courts are more authoritative at federal issues, and the state courts at state issue). There is also a hierarchy, where you have trial courts at the lowest level, appellate courts at the intermediate level, and supreme courts at the highest level. Any opinion by any court may be cited as precedent, but decisions made by a higher court are binding on the courts below it. There are also divisions along geographic lines. For example, there are several federal district courts (trial courts) serving different portions of the state of New York. All of them fall under the Second Circuit Court of Appeals (appellate court). And both the district courts and the circuit court fall under the Supreme Court, which is nationwide. Many, if not all states, do something similar with county courts and circuits over them.
In many other countries there is a civil law system in which there's no precedents or common law. I don't know much about it, but it seems bizarre to me. I like what we've got.
Or did you mean that fair use is decided on a case by case basis? This is absolutely true for copyright fair use. But trademark fair use is a bit more limited. Trademark fair use, found at 15 USC 1115(b)(4), is this:
That the use of the name, term, or device charged to be an infringement is a use, otherwise than as a mark, of the party's individual name in his own business, or of the individual name of anyone in privity with such party, or of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin
It's a bit more of a bright line in some respects than copyright fair use. There's still the vague word 'fairly' which could be stretched or compressed as a court saw fit, but you have to get to that point by not losing on any of the more simple tests, e.g. that you're not using the mark as a mark.
Still, the filmmaker is parodying Disney itself, which is infamous for its meddling with copyright and is taking strong steps to avoid confusion. I don't think that his position vis-a-vis the logo is as strong as it could be, but I don't think he's screwed.
It's annoying to watch. Rather than redub the animation, or frame it in a dialogue, he uses extremely short clips of various Disney cartoons to recite his script by using one clip per word (generally), and since the tones of voice, speed at which they're talking, etc. all vary, it sounds jarring as hell. There's a lot of repetition, too. I didn't even get to the middle of it.
Actually there is a fair use doctrine in trademark law, and it's called fair use, but it's quite different from the fair use doctrine of copyright law, which can lead to some confusion if you end up talking about both. Usually you end up having to qualify which one you mean.
I found the quick cuts too jarring to allow me to watch more than a minute of it, but as for the use of the logo in the beginning, he has a decent position. Nominative use is allowed -- how can he say he's not affiliated with Disney if he can't say the name 'Disney' in the disclaimer? But the use of the entire animated logo and music would need to fall under the overall parody, which had better be non-commercial in nature, as this one appears to be. His position isn't airtight; he'd've done better to just simply say that he wasn't affiliated with Disney, rather than to use the logo animation, but he has a decent argument in his favor.
I proposed 100 years on the basis that should I ever publish something of cultural value, I would like to have at least some level of control on how it gets used at least throughout my lifetime.
That's nice, but the problem is that -- and this is just based on the numbers, nothing personal -- you probably never will publish anything that has a century's worth of cultural value in it. Your rationale is exactly like saying that you oppose income taxes because maybe someday you'll win a hundred million dollars in the lottery, and you want to be prepared for it. That's really foolishly optimistic.
It's better to concentrate on the more likely scenario.
And frankly, if the work does have cultural value, then there's no harm to our culture if other people participate. Copyright has to do with the money from the work, not the cultural impact, integrity, etc. Shakespeare's plays are not diminished by the many editions, revisions, restagings, adaptations, etc. that exist. Why would your work be any different?
For movies, if I distributed a popular movie on Beta/VHS I would most likely want to remaster it if the cost can be justified and sell it again on DVD, HD-DVD, Blu-Ray and anything else that may come in the future for as long as there is a public for it - that's pretty much what Lucas has been doing with Star Wars.
And if the movie enters the public domain in a more timely fashion, no one is preventing you from releasing whatever you want to release. You just don't get to monopolize it. But besides -- Star Wars is as rare as a winning lottery ticket. There were a number of good movies from 1977 with lasting mass appeal. I'd say there were about ten of them. According to IMDB, well over 3000 movies were made in that year. Why should we give long-lived copyrights to those forgettable movies just to reward the people who made something really amazingly memorable? After all, the investors for every single one of those movies took a big gamble. And even with shorter terms as I'm suggesting, even the successes would have paid off handsomely.
For instance, if we imagined terms at 20 years, then Lucas would've made a killing on Star Wars up through 1997. That covers the original trilogy, all the toys, home video release, etc. Nothing would prevent him from making the sequels (on which the copyright would start when it was made, and so assuming the same dates, they'd still be copyrighted today), and using his imprimatur to attract audiences, since that's one thing that his competitors couldn't use.
I can easily imagine them going suicidal/homicidal should a movie studio make blockbuster movie off books authors actually lost money on nearly immediately after the copyrights expired.
I am confident that it has happened. But apparently it wasn't the end of the world. And why should it be? Consider, for example, the case of George Romero. Due to an error by the distributor, apparently, his seminal zombie movie Night of the Living Dead was never copyrighted. AFAIK he wasn't pleased about that, but he didn't let it get the better of him.
If an author is willing to make a work based on a copyright law where it is a real possibility that someone will wait for the term to expire and then use the work, then that's perfectly fine. The author is not a child, and he knows what he is getting into. His only other option is to take his ball and go home, as it were, and he is free to do so. Even right now, with our absurd terms, I'm sure there is some author out there who is unwilling to create works because he knows that 70 years after he dies, people will get to use the work freely. I say that's fine. If the incentive of copyright isn't good enough for him, but it is good enough for the rest of the world, then the author can take it or leave it. I won't shed a tear if he decides to wait tables or something.
As far as books, movie, music and other similar entertainments are concerned, the content retains tangible immediate (as-is) economic value (without imp
What happens, SUDDENLY something becomes property where that classification was previously completely unavailable?
What, you think that never happens? Something isn't property until someone goes for it. A fish in the sea isn't property until it has been caught.
This is something you COULD do, were it not for the laws in this country.
Remember, this began with an earlier poster claiming that property rights necessarily trump civil liberties, for no better reason than that property rights were historically protected before civil liberties were.
You can't say "people are not property at all" to quash objections after making an assumption of the ability to enslave another person.
I think that you're not following the argument. I am saying that in at least some cases, which is all I need to attack the earlier poster's argument, civil liberties trump property rights, in this case by showing how the right to not be enslaved trumps the right of the would-be slaveholder. So by pointing out the absurd consequences that would result if my contention were wrong, I am arguing that that can't be so.
I would still create if I were unable to profit from it
Then the answer is 'tough.'
If someone will paint my house for $1,000, but would sincerely like me to give them $1,000,000, then I'm going to give them the lesser amount.
I respect that you'd like more, but please respect that everyone else has the same drives: you want control over the use of your work, and we want to use your work free of control. Your leverage is withholding your works, or not creating them at all. Our leverage is that we determine whether and how much control you get. You get to withhold your work until you get a minimum amount of control that satisfies you. We get to reduce the amount of control until we get as low a level of control, and as high an amount of works, as satisfies us. And nothing dictates that we actually come to an agreement; it's okay if some artists withhold their works, so long as the public is happy with what isn't being withheld, and wouldn't get more happy with more works released given that it would have to become less happy by giving up more control in order to get them.
Not everything is utilitarian, but copyright is nothing but.
But where are you getting those numbers from? Remember, copyright is a utilitarian system: the length and scope of copyright should be determined by the public benefit of copyright. That is, since it is beneficial to have more works created and published, but detrimental to suffer the scope of a copyright for a given length of time, copyright should be as short-lived and narrow as possible while still causing the most works to be created and published. Basically, you want to get the most bang for your buck, without either having too little copyright, and thus getting too little benefit, or having too much copyright, and end up in a world of diminishing returns at best, or a net public detriment at worst.
Your proposal is basically like saying that when you want to get someone to paint your house, you'll just pay them a million dollars, because that's "plenty sufficient." The house painters will be thrilled, but it'll be tough on you. It's better then, to pay the least amount that will still get them to paint the house. The painters are still willing to do it for the lower price (though they'd prefer the million dollars), and you're no longer being wasteful.
There have been studies done as to the value of copyrights over time, for various works. First, know that the vast majority of works have no copyright-related economic value at all. Their authors are incentivized to create the works for incentives that are outside of the copyright system (e.g. fame, commissions, selling a specific copy rather than copies as commodities, etc.). These incentives are often at work even for the authors that do respond to copyrights, and so we should try to not provide any surplus incentive if these natural incentives will suffice.
Second, of the tiny fraction of works that do have economic value, the vast majority of that value is generally realized over a period of days to months of publication in a given medium, depending on the market for that work. For example, a movie will take in most of its box office beginning on opening weekend through a few weeks. This is the reason that movies don't stay in theaters long, and get more showings initially than later: they stop being profitable enough to justify showing as compared to something else. Eventually the movie hits pay-per-view. Again, there's a flurry of viewings in the first few weeks, but the work quickly gains the majority of all the value from that form of publication it will ever get, and drops off the listings. Then copies of the movie are sold (many to rental stores, many to individuals). Again, most sales over the entire life of the movie occur within a few weeks of release. Ditto for licensing to premium cable channels, then regular cable, and broadcast tv. If the movie is really popular with enough people, it might become a lasting (if always more modest than its initial release) source of profit. This is incredibly rare, however. Given the number of movies made, it's like a lottery win. We shouldn't base public policy around statistical outliers, however.
Frankly, you could give a movie studio a five year copyright term, and while I bet they would bitch about it to no end, it would still be quite profitable for them (offhand I'd guess around 95% of what their profits are now for any given movie) and they'd still make movies. This doesn't mean that I propose a five year term, just that there's no need whatsoever to give them a century or so, as you propose! That's a vast overpayment, and it doesn't produce significantly more or better movies, it just makes them more expensive in terms of the public interest.
Various types of works have various timelines. An episode of a TV show gets most of its income in 30 to 60 minutes, in a somewhat indirect fashion (as the income hinges on the viewing numbers). If it hits DVD, treat it like a movie. An issue of a newspaper, over the course of the day, mostly in the morning. A magazine, over a few days, maybe a week, depending on the frequency of publication. A book, usually over a period of three months
No, that's not a property right. People do not own themselves, because then people could sell themselves as slaves (which is entirely different from merely working at a job, in much the same way that an outright sale is different from a rental), or incur debts which result in being seized and auctioned like any other property. People are not property at all; they don't need to be in order to be in charge of their own lives.
I suspect neither of you have thought this through.
A brief history of rights in the western tradition: property rights -> limitations on governmental power -> civil liberties -> equal protection -> civil rights Private property rights should trump civil liberties & civil rights, and to suggest otherwise undermines all freedom.
Really? So let's say that Alice enslaves Bob. Alice claims that this makes Bob her property. Bob claims that he has a civil right to not be enslaved. You're saying that you'd agree with Alice?
I think you should go back and rethink your position.
And no, the world is not a better place with fifty gazillion hacks trying to rework Disney cartoons, we are far richer as a culture when a smalll handful of talented people are rewarded fairly for creating the next Mickey Mouse.
A reworking of a Disney cartoon is of equal value to an original cartoon, actually.
Look at Shakespeare: nearly all of his plays are either based on history, or are based on stories that were already around. He was a thoroughly derivative artist, but a really excellent one. So long as there is a great quantity of works, I'm not too worried about just what those works happen to be.
Why not? No one should be able to compel another to do work, but if work is done, why shouldn't other people enjoy the benefits of it?
For example, suppose that Alice and Bob are neighbors. Alice plants a wonderful garden, which causes property rates to rise. As a result, Bob benefits from Alice's work, and Alice is not entitled to get Bob to compensate her.
For small portions of a work which would be unfair to use, I'd look to Harper & Row v. Nation, in which the Nation magazine obtained a copy of Gerald Ford's autobiography before it was published. They reprinted some select bits involving Ford's decision to pardon Nixon. While this was a relatively small part of the book as a whole, it was the only part of Gerald Ford's life that anyone cared about. The court there held that it wasn't fair use.
For an entire work which would be fair to use, I'd look at Sony v. Universal, in which people using Betamaxes would record an entire TV show from start to finish, thus making a copy contrary to copyright law. Sony argued that those users could be engaged in fair use, since they were making a copy in order to watch the show later. The Supreme Court agreed that at least in some cases that could be a fair use.
Like I said, the overall circumstances are what's important. That's why there are four factors; no one factor should be entirely determinative. And it's not a mere mathematical test either; in the Sony case, only one factor weighs in the favor of the users, but overall it's good enough to find fair use.
Well, fair use can deal with any manner of otherwise infringing behavior. It can apply to derivatives.
If you stand by your argument, then surely it should also be legal to publish full-length MP3s of every song sold by the U.S. recording industry, as long as they're downsampled to 32 kbps?
No. Each time fair use is invoked, it must be considered on the circumstances of the case at hand. It's entirely a case-by-case issue, and precedents are of somewhat limited utility, really.
Actually, fair use permits one to use any amount of a work, so long as it's fair. The amount and substaniality used is a factor in determining if it is fair, but it's not determinative on its own. Under the right circumstances, it can be fair to use an entire work, or unfair to use even very small portions.
I'd also argue that a copy is not property; media onto which that copy is made is property.
A copy is a tangible medium within which there is a work. So it is the media. You are using the word incorrectly when you talk about a medium onto which a copy is made. You mean to say a copy into which a work is fixed.
I'd argue that the only property involved is the piece of paper that says you have stocks/shares.
There frequently is no such piece of paper. Fancy looking stock certificates are nice and all, but they're not really important. What's important is that you own the share, and that this fact is recorded someplace. The place where it's recorded isn't the property in question; it's just a record of the fact, not the underlying fact itself.
No, it's quite correct to say that there is such a thing as intangible property. Not all intangibles are property, but it's not intangibility that determines whether something is property or not.
But it's meaningless to point out it's not really "theft" under the law (which is a state law and can vary from state to state anyway).
Who gives a rat's ass what the states have to say? 17 USC 301. Personally, I'd be shocked to find a single law regarding larceny that was actually applicable (aside from the preemption issue) to copyright issues. There can be copyright at common law, but even that is still copyright, and not, say, trespass to chattels. None of this prevents a judge from using an inaccurate colloquialism, though.
Yes, many people don't sit down and carefully think about legal issues. Fortunately, some people do, and for much the same reason that people are willing to work with specialists in other fields (99% of the people on Earth don't know how to fly a plane, so when I need to fly somewhere, I look for an airline with a trained and experienced pilot), specialists have developed in the legal field.
For example, I'm a copyright lawyer, and having studied copyright law extensively, having practiced copyright law, and having thought about copyright law a lot, I can assure you that if that's what 99% of people think, then 99% of people are wrong. Of course, I don't think that your 99% statement was all that accurate. I think that people are more nuanced; Alice might regard it as wrong to hotwire Bob's car and drive away with it, but apparently, given how prevalent it is, she doesn't think it's wrong to copy Bob's CD of 'Carol Sings the Hits.'
By paying musicians you incentivise them to keep at it,
What if I am both not interested in incentivizing them, and also not concerned about the results of the lack of this artificial incentive?
Things which are not physical objects cannot be properties
No, that's untrue. Intangible properties are common.
For example, if you own a share of stock in a company, that share is intangible, and represents a fraction of the company (many of the assets of which are also intangible), but it's certainly property. Another kind of intangible property would be a debt. For example, if you deposit $1 with your bank, the bank now owes you a debt of $1. That debt can be transferred to someone else without having to withdraw the dollar.
The test for whether or not something is property has three parts, and is as follows: 1) The thing must be capable of being used or enjoyed in some manner by the owner; 2) The owner must be able to lend the possession of the thing to another whilst still retaining his ownership of it, and must be able to force it to be returned, and; 3) The owner must be able to dispose of the property by selling it, giving it away, destroying the thing, etc.
A parcel of land satisfies all three tests. So does a brick. So does a share of stock, or a debt.
In the copyright debate, there are three distinct things that we often talk about: creative works, copies, and copyrights.
A creative work is like a story, or music, or a movie. It is the intangible thing that is what the author created. While there might be only one instance of it, it is possible for a single work to simultaneously exist in multiple instances, often millions. For example, there are many books in which 'Macbeth' is printed, but there's only one story involved, and they all just contain an instance of it.
A copy is a tangible object in which a work is fixed. For a story, it might be a book, e.g. a paperback or a hardcover. For a movie, it might be a reel of film or a DVD. For a song, it might be a page of sheet music, or a CD. A copy of a work isn't the same as the work itself; destroy one copy of Macbeth and that copy itself might be gone, but the story still exists.
And a copyright is an artificial legal right which pertains to creative works and copies thereof. It is not the same as either a work or a copy; many works and many copies exist without copyrights related to either. When a work passes into the public domain, the copyright dissolves, but the work and its copies are unscathed.
A creative work isn't property (it fails the second test and usually fails the third). A copy is certainly property. A copyright is arguably property, but could perhaps be construed in a different fashion.
Will we rich patrons have films made for their own amusement?
Perhaps. Or maybe we'll have large quantities of patrons of only average means. Artists back in the day sometimes used a subscription model for financing. The Street Performer Protocol is something of a more recent spin on that. And of course, as I don't advocate abolishing copyright (since the situation doesn't warrant it yet), copyright also can be used to help secure investors.
But it's up to the person who made it to decide if they'd rather just go ahead and assign you the right to distribute their work as you see fit, or make money off of doing so. Since you obviously have great disdain for people who would like to charge for the experience of watching what it took them years to make, why do you care about the relationship they have with their customers?
Whether or not they have the right to control what people do with their work is a matter of public policy. It's everyone's concern, since it's everyone's rights that we are giving up in order to create copyrights in the first place. It's not as though copyrights grow on trees.
And talk them into waiving most or all of their copyrights
Why would they? Copyright expects people to be self-interested. Authors are interested in exploiting their copyrights for every penny they can get, and in expanding copyrights to get even more. We're living in the result of that. But the public is equally self-interested, and wants works for free, or at least as little as possible. Changing copyright law is easier and a generally better and fairer solution than getting authors to act against their own interests.
I realize that you want a world where everything is produced at the mom-and-pop level
I do not, actually.
I merely want the copyright system that best serves the public interest. There are three options: either we have the best possible system now; the best possible system requires more expansive laws than we have now, or; the best possible system requires less expansive laws than we have now. My belief, based on my experience studying and practicing copyright law, drawing upon my experiences as a professional artist, and as a member of the public who enjoys creative works, is that the third option is most likely the correct one. The only issue that remains is to figure out precisely what new, lesser, configuration of laws will produce the greatest public benefit.
If this happens to involve giant multinational corporations, then that's fine. If this happens to involve everything being at the mom and pop level, then that's fine too. I have no strong feelings either way in that regard.
Your canard about trillion dollar movies, straw man that it is, isn't very effective at changing the topic here.
It's no straw man. It's an analogy, of the type A:B as C:D. If no one is complaining about the law not making it viable to have trillion dollar movies in an age when we have quarter-billion dollar movies, then it seems perfectly reasonable to imagine reducing the law, and not complaining about the lack of quarter-billion dollar movies in a new age of one million dollar movies.
A movie can be made without being expensive to make. And a movie can be good without being expensive to make. And while people enjoy the spectacle of an expensive movie (unless it's bad, e.g. Waterworld, Heaven's Gate, Cutthroat Island), spectacle doesn't make it good. And certainly providing the environment in which such spectacle can be supported can be so costly as to outweigh whatever meager benefit the spectacle provides us with.
I have every faith that no matter what kinds of budgets people have to deal with, they can still make plenty of movies, and still make good movies. Will fewer things explode? Perhaps. I'm not worried about it.
I don't advocate that movies should have to be cheaper, mind you. Only that if it is a side effect of making copyright better serve the public interest, then it is not a bad thing. In
Feh. Cray Torrent is where it's at. Not only can you pirate movies with it, but you can comfortably sit down on the computer when you watch those movies!
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So for the very last encore, you get to see the city burn down around you while you play?
There are two kinds of distinct creative work involved with music. The first is the music itself, i.e. the arrangement of notes and/or lyrics. The other is a sound recording of a particular performance of that music, e.g. a tape recording. Music has long been copyrightable, and usually this applied to the sheet music. A recording of a musician performing that music wasn't copyrightable in itself. Congress decided to grant copyrights for sound recordings in the 70's. However, they limited that copyright so that it didn't apply to the radio: a radio station was free to play a sound recording over the air, and pay royalties to the songwriter, but not to the performer. This is still the case, in fact. But much more recently, Congress decided to grant a copyright in the sound recording that applied to digital transmissions. This meant that now, unlike for terrestrial radio, things like Internet radio would have to pay a royalty not just to the songwriter, but also to the performer.
As is the case for music, the royalty is under a statutory license. That is, rather than have everyone suffer the huge headaches and transactional costs of negotiating rights for each piece of music individually, everyone can pay a fee set forth by law and get a license automatically, regardless even of whether the copyright holder agrees. (Because his copyright doesn't apply to people who pay the statutory license; that's how the law is written) Everyone is free to make their own arrangements, but in practice few bother to do so since it is really a huge pain in the ass.
The Copyright Office was empowered to perform certain administrative tasks related to this, and one thing that was done was to name designated agents to whom the statutory license royalty can be paid so that the payor will be in compliance with the law. Currently, the only one is SoundExchange.
If you have a separate agreement with the relevant copyright holders, you don't need to pay SoundExchange. If you are playing a recording to which you are the copyright holder, or a recording which is in the public domain, you don't need to pay SoundExchange.
Is the RIAA that powerful that they can manage to dictate legislation that way?
Yes. The industries involved in copyright matters have been dictating legislation from the beginning of the 20th century on. This is nothing new.
If there is no incentive, financial, to create then many things won't be created, which is a greater theft to the public.
Setting aside that there are plenty of incentives unrelated to copyright, an author does no disservice to the public by failing to create and publish a given work. It's good if he does it, but it's not theft if he doesn't. You're saying something akin to that I stole $5 from you because I didn't give you $5 as a gift.
No, I get why he was using the clips. I disagree as to the importance of this particular video. But what I was saying was that the clips are really annoying. The movie uses another clip for each word. I found this unpleasant. I think it would've worked better as a dialogue. Let there be a narrator who carries most of the weight, with the characters responding to him with clips that consist of whole sentences, rather than single words. Right now, it's just unwatchably bad. The premise is fine, it's the execution of it that I dislike. It's like the video equivalent of a ransom note.
Generally, this is not true. There are two bodies of law in the US, statutory law and common law. The statutory law is written law created by legislative bodies, such as Congress, state legislatures, administrative agencies, etc. The common law is somewhat more nebulous, and is created by the courts. Where they are in conflict, the statutory law overrides the common law. Courts routinely must interpret the law, whether statutory or common, in order to determine precisely what the language of the law actually means. There are often disagreements as to the meaning of the law, whether it is acceptable to look outside the law for clues as to the meaning (e.g. a contemporaneous statement by the lawmaker that goes 'What I meant, when I drafted this law was...,' if so what sources may be considered, whether a given possible meaning makes sense in the context of other laws, etc. To help settle these disagreements, courts will look to what other courts have interpreted the laws to mean in the past. This is useful for several reasons, not the least of which is consistency, i.e. if case A is like case B, a court will generally behave in deciding case A in the same way that it did in deciding case B. There are two parallel court systems: state courts, and federal courts. They don't outrank one another, save in certain circumstances (i.e. the federal courts are more authoritative at federal issues, and the state courts at state issue). There is also a hierarchy, where you have trial courts at the lowest level, appellate courts at the intermediate level, and supreme courts at the highest level. Any opinion by any court may be cited as precedent, but decisions made by a higher court are binding on the courts below it. There are also divisions along geographic lines. For example, there are several federal district courts (trial courts) serving different portions of the state of New York. All of them fall under the Second Circuit Court of Appeals (appellate court). And both the district courts and the circuit court fall under the Supreme Court, which is nationwide. Many, if not all states, do something similar with county courts and circuits over them.
In many other countries there is a civil law system in which there's no precedents or common law. I don't know much about it, but it seems bizarre to me. I like what we've got.
Or did you mean that fair use is decided on a case by case basis? This is absolutely true for copyright fair use. But trademark fair use is a bit more limited. Trademark fair use, found at 15 USC 1115(b)(4), is this:
It's a bit more of a bright line in some respects than copyright fair use. There's still the vague word 'fairly' which could be stretched or compressed as a court saw fit, but you have to get to that point by not losing on any of the more simple tests, e.g. that you're not using the mark as a mark.
Still, the filmmaker is parodying Disney itself, which is infamous for its meddling with copyright and is taking strong steps to avoid confusion. I don't think that his position vis-a-vis the logo is as strong as it could be, but I don't think he's screwed.
It's annoying to watch. Rather than redub the animation, or frame it in a dialogue, he uses extremely short clips of various Disney cartoons to recite his script by using one clip per word (generally), and since the tones of voice, speed at which they're talking, etc. all vary, it sounds jarring as hell. There's a lot of repetition, too. I didn't even get to the middle of it.
Actually there is a fair use doctrine in trademark law, and it's called fair use, but it's quite different from the fair use doctrine of copyright law, which can lead to some confusion if you end up talking about both. Usually you end up having to qualify which one you mean.
I found the quick cuts too jarring to allow me to watch more than a minute of it, but as for the use of the logo in the beginning, he has a decent position. Nominative use is allowed -- how can he say he's not affiliated with Disney if he can't say the name 'Disney' in the disclaimer? But the use of the entire animated logo and music would need to fall under the overall parody, which had better be non-commercial in nature, as this one appears to be. His position isn't airtight; he'd've done better to just simply say that he wasn't affiliated with Disney, rather than to use the logo animation, but he has a decent argument in his favor.
I proposed 100 years on the basis that should I ever publish something of cultural value, I would like to have at least some level of control on how it gets used at least throughout my lifetime.
That's nice, but the problem is that -- and this is just based on the numbers, nothing personal -- you probably never will publish anything that has a century's worth of cultural value in it. Your rationale is exactly like saying that you oppose income taxes because maybe someday you'll win a hundred million dollars in the lottery, and you want to be prepared for it. That's really foolishly optimistic.
It's better to concentrate on the more likely scenario.
And frankly, if the work does have cultural value, then there's no harm to our culture if other people participate. Copyright has to do with the money from the work, not the cultural impact, integrity, etc. Shakespeare's plays are not diminished by the many editions, revisions, restagings, adaptations, etc. that exist. Why would your work be any different?
For movies, if I distributed a popular movie on Beta/VHS I would most likely want to remaster it if the cost can be justified and sell it again on DVD, HD-DVD, Blu-Ray and anything else that may come in the future for as long as there is a public for it - that's pretty much what Lucas has been doing with Star Wars.
And if the movie enters the public domain in a more timely fashion, no one is preventing you from releasing whatever you want to release. You just don't get to monopolize it. But besides -- Star Wars is as rare as a winning lottery ticket. There were a number of good movies from 1977 with lasting mass appeal. I'd say there were about ten of them. According to IMDB, well over 3000 movies were made in that year. Why should we give long-lived copyrights to those forgettable movies just to reward the people who made something really amazingly memorable? After all, the investors for every single one of those movies took a big gamble. And even with shorter terms as I'm suggesting, even the successes would have paid off handsomely.
For instance, if we imagined terms at 20 years, then Lucas would've made a killing on Star Wars up through 1997. That covers the original trilogy, all the toys, home video release, etc. Nothing would prevent him from making the sequels (on which the copyright would start when it was made, and so assuming the same dates, they'd still be copyrighted today), and using his imprimatur to attract audiences, since that's one thing that his competitors couldn't use.
I can easily imagine them going suicidal/homicidal should a movie studio make blockbuster movie off books authors actually lost money on nearly immediately after the copyrights expired.
I am confident that it has happened. But apparently it wasn't the end of the world. And why should it be? Consider, for example, the case of George Romero. Due to an error by the distributor, apparently, his seminal zombie movie Night of the Living Dead was never copyrighted. AFAIK he wasn't pleased about that, but he didn't let it get the better of him.
If an author is willing to make a work based on a copyright law where it is a real possibility that someone will wait for the term to expire and then use the work, then that's perfectly fine. The author is not a child, and he knows what he is getting into. His only other option is to take his ball and go home, as it were, and he is free to do so. Even right now, with our absurd terms, I'm sure there is some author out there who is unwilling to create works because he knows that 70 years after he dies, people will get to use the work freely. I say that's fine. If the incentive of copyright isn't good enough for him, but it is good enough for the rest of the world, then the author can take it or leave it. I won't shed a tear if he decides to wait tables or something.
As far as books, movie, music and other similar entertainments are concerned, the content retains tangible immediate (as-is) economic value (without imp
What happens, SUDDENLY something becomes property where that classification was previously completely unavailable?
What, you think that never happens? Something isn't property until someone goes for it. A fish in the sea isn't property until it has been caught.
This is something you COULD do, were it not for the laws in this country.
Remember, this began with an earlier poster claiming that property rights necessarily trump civil liberties, for no better reason than that property rights were historically protected before civil liberties were.
You can't say "people are not property at all" to quash objections after making an assumption of the ability to enslave another person.
I think that you're not following the argument. I am saying that in at least some cases, which is all I need to attack the earlier poster's argument, civil liberties trump property rights, in this case by showing how the right to not be enslaved trumps the right of the would-be slaveholder. So by pointing out the absurd consequences that would result if my contention were wrong, I am arguing that that can't be so.
I would still create if I were unable to profit from it
Then the answer is 'tough.'
If someone will paint my house for $1,000, but would sincerely like me to give them $1,000,000, then I'm going to give them the lesser amount.
I respect that you'd like more, but please respect that everyone else has the same drives: you want control over the use of your work, and we want to use your work free of control. Your leverage is withholding your works, or not creating them at all. Our leverage is that we determine whether and how much control you get. You get to withhold your work until you get a minimum amount of control that satisfies you. We get to reduce the amount of control until we get as low a level of control, and as high an amount of works, as satisfies us. And nothing dictates that we actually come to an agreement; it's okay if some artists withhold their works, so long as the public is happy with what isn't being withheld, and wouldn't get more happy with more works released given that it would have to become less happy by giving up more control in order to get them.
Not everything is utilitarian, but copyright is nothing but.
But where are you getting those numbers from? Remember, copyright is a utilitarian system: the length and scope of copyright should be determined by the public benefit of copyright. That is, since it is beneficial to have more works created and published, but detrimental to suffer the scope of a copyright for a given length of time, copyright should be as short-lived and narrow as possible while still causing the most works to be created and published. Basically, you want to get the most bang for your buck, without either having too little copyright, and thus getting too little benefit, or having too much copyright, and end up in a world of diminishing returns at best, or a net public detriment at worst.
Your proposal is basically like saying that when you want to get someone to paint your house, you'll just pay them a million dollars, because that's "plenty sufficient." The house painters will be thrilled, but it'll be tough on you. It's better then, to pay the least amount that will still get them to paint the house. The painters are still willing to do it for the lower price (though they'd prefer the million dollars), and you're no longer being wasteful.
There have been studies done as to the value of copyrights over time, for various works. First, know that the vast majority of works have no copyright-related economic value at all. Their authors are incentivized to create the works for incentives that are outside of the copyright system (e.g. fame, commissions, selling a specific copy rather than copies as commodities, etc.). These incentives are often at work even for the authors that do respond to copyrights, and so we should try to not provide any surplus incentive if these natural incentives will suffice.
Second, of the tiny fraction of works that do have economic value, the vast majority of that value is generally realized over a period of days to months of publication in a given medium, depending on the market for that work. For example, a movie will take in most of its box office beginning on opening weekend through a few weeks. This is the reason that movies don't stay in theaters long, and get more showings initially than later: they stop being profitable enough to justify showing as compared to something else. Eventually the movie hits pay-per-view. Again, there's a flurry of viewings in the first few weeks, but the work quickly gains the majority of all the value from that form of publication it will ever get, and drops off the listings. Then copies of the movie are sold (many to rental stores, many to individuals). Again, most sales over the entire life of the movie occur within a few weeks of release. Ditto for licensing to premium cable channels, then regular cable, and broadcast tv. If the movie is really popular with enough people, it might become a lasting (if always more modest than its initial release) source of profit. This is incredibly rare, however. Given the number of movies made, it's like a lottery win. We shouldn't base public policy around statistical outliers, however.
Frankly, you could give a movie studio a five year copyright term, and while I bet they would bitch about it to no end, it would still be quite profitable for them (offhand I'd guess around 95% of what their profits are now for any given movie) and they'd still make movies. This doesn't mean that I propose a five year term, just that there's no need whatsoever to give them a century or so, as you propose! That's a vast overpayment, and it doesn't produce significantly more or better movies, it just makes them more expensive in terms of the public interest.
Various types of works have various timelines. An episode of a TV show gets most of its income in 30 to 60 minutes, in a somewhat indirect fashion (as the income hinges on the viewing numbers). If it hits DVD, treat it like a movie. An issue of a newspaper, over the course of the day, mostly in the morning. A magazine, over a few days, maybe a week, depending on the frequency of publication. A book, usually over a period of three months
No, that's not a property right. People do not own themselves, because then people could sell themselves as slaves (which is entirely different from merely working at a job, in much the same way that an outright sale is different from a rental), or incur debts which result in being seized and auctioned like any other property. People are not property at all; they don't need to be in order to be in charge of their own lives.
I suspect neither of you have thought this through.
A brief history of rights in the western tradition:
property rights -> limitations on governmental power -> civil liberties -> equal protection -> civil rights
Private property rights should trump civil liberties & civil rights, and to suggest otherwise undermines all freedom.
Really? So let's say that Alice enslaves Bob. Alice claims that this makes Bob her property. Bob claims that he has a civil right to not be enslaved. You're saying that you'd agree with Alice?
I think you should go back and rethink your position.
And no, the world is not a better place with fifty gazillion hacks trying to rework Disney cartoons, we are far richer as a culture when a smalll handful of talented people are rewarded fairly for creating the next Mickey Mouse.
A reworking of a Disney cartoon is of equal value to an original cartoon, actually.
Look at Shakespeare: nearly all of his plays are either based on history, or are based on stories that were already around. He was a thoroughly derivative artist, but a really excellent one. So long as there is a great quantity of works, I'm not too worried about just what those works happen to be.
Why not? No one should be able to compel another to do work, but if work is done, why shouldn't other people enjoy the benefits of it?
For example, suppose that Alice and Bob are neighbors. Alice plants a wonderful garden, which causes property rates to rise. As a result, Bob benefits from Alice's work, and Alice is not entitled to get Bob to compensate her.
For small portions of a work which would be unfair to use, I'd look to Harper & Row v. Nation, in which the Nation magazine obtained a copy of Gerald Ford's autobiography before it was published. They reprinted some select bits involving Ford's decision to pardon Nixon. While this was a relatively small part of the book as a whole, it was the only part of Gerald Ford's life that anyone cared about. The court there held that it wasn't fair use.
For an entire work which would be fair to use, I'd look at Sony v. Universal, in which people using Betamaxes would record an entire TV show from start to finish, thus making a copy contrary to copyright law. Sony argued that those users could be engaged in fair use, since they were making a copy in order to watch the show later. The Supreme Court agreed that at least in some cases that could be a fair use.
Like I said, the overall circumstances are what's important. That's why there are four factors; no one factor should be entirely determinative. And it's not a mere mathematical test either; in the Sony case, only one factor weighs in the favor of the users, but overall it's good enough to find fair use.
Well, fair use can deal with any manner of otherwise infringing behavior. It can apply to derivatives.
If you stand by your argument, then surely it should also be legal to publish full-length MP3s of every song sold by the U.S. recording industry, as long as they're downsampled to 32 kbps?
No. Each time fair use is invoked, it must be considered on the circumstances of the case at hand. It's entirely a case-by-case issue, and precedents are of somewhat limited utility, really.
Actually, fair use permits one to use any amount of a work, so long as it's fair. The amount and substaniality used is a factor in determining if it is fair, but it's not determinative on its own. Under the right circumstances, it can be fair to use an entire work, or unfair to use even very small portions.
I'd also argue that a copy is not property; media onto which that copy is made is property.
A copy is a tangible medium within which there is a work. So it is the media. You are using the word incorrectly when you talk about a medium onto which a copy is made. You mean to say a copy into which a work is fixed.
I'd argue that the only property involved is the piece of paper that says you have stocks/shares.
There frequently is no such piece of paper. Fancy looking stock certificates are nice and all, but they're not really important. What's important is that you own the share, and that this fact is recorded someplace. The place where it's recorded isn't the property in question; it's just a record of the fact, not the underlying fact itself.
No, it's quite correct to say that there is such a thing as intangible property. Not all intangibles are property, but it's not intangibility that determines whether something is property or not.
But it's meaningless to point out it's not really "theft" under the law (which is a state law and can vary from state to state anyway).
Who gives a rat's ass what the states have to say? 17 USC 301. Personally, I'd be shocked to find a single law regarding larceny that was actually applicable (aside from the preemption issue) to copyright issues. There can be copyright at common law, but even that is still copyright, and not, say, trespass to chattels. None of this prevents a judge from using an inaccurate colloquialism, though.
Yes, many people don't sit down and carefully think about legal issues. Fortunately, some people do, and for much the same reason that people are willing to work with specialists in other fields (99% of the people on Earth don't know how to fly a plane, so when I need to fly somewhere, I look for an airline with a trained and experienced pilot), specialists have developed in the legal field.
For example, I'm a copyright lawyer, and having studied copyright law extensively, having practiced copyright law, and having thought about copyright law a lot, I can assure you that if that's what 99% of people think, then 99% of people are wrong. Of course, I don't think that your 99% statement was all that accurate. I think that people are more nuanced; Alice might regard it as wrong to hotwire Bob's car and drive away with it, but apparently, given how prevalent it is, she doesn't think it's wrong to copy Bob's CD of 'Carol Sings the Hits.'
By paying musicians you incentivise them to keep at it,
What if I am both not interested in incentivizing them, and also not concerned about the results of the lack of this artificial incentive?
I thought they were raiding Building 245 at the NASA Ames Research Center.
Things which are not physical objects cannot be properties
No, that's untrue. Intangible properties are common.
For example, if you own a share of stock in a company, that share is intangible, and represents a fraction of the company (many of the assets of which are also intangible), but it's certainly property. Another kind of intangible property would be a debt. For example, if you deposit $1 with your bank, the bank now owes you a debt of $1. That debt can be transferred to someone else without having to withdraw the dollar.
The test for whether or not something is property has three parts, and is as follows: 1) The thing must be capable of being used or enjoyed in some manner by the owner; 2) The owner must be able to lend the possession of the thing to another whilst still retaining his ownership of it, and must be able to force it to be returned, and; 3) The owner must be able to dispose of the property by selling it, giving it away, destroying the thing, etc.
A parcel of land satisfies all three tests. So does a brick. So does a share of stock, or a debt.
In the copyright debate, there are three distinct things that we often talk about: creative works, copies, and copyrights.
A creative work is like a story, or music, or a movie. It is the intangible thing that is what the author created. While there might be only one instance of it, it is possible for a single work to simultaneously exist in multiple instances, often millions. For example, there are many books in which 'Macbeth' is printed, but there's only one story involved, and they all just contain an instance of it.
A copy is a tangible object in which a work is fixed. For a story, it might be a book, e.g. a paperback or a hardcover. For a movie, it might be a reel of film or a DVD. For a song, it might be a page of sheet music, or a CD. A copy of a work isn't the same as the work itself; destroy one copy of Macbeth and that copy itself might be gone, but the story still exists.
And a copyright is an artificial legal right which pertains to creative works and copies thereof. It is not the same as either a work or a copy; many works and many copies exist without copyrights related to either. When a work passes into the public domain, the copyright dissolves, but the work and its copies are unscathed.
A creative work isn't property (it fails the second test and usually fails the third). A copy is certainly property. A copyright is arguably property, but could perhaps be construed in a different fashion.
Will we rich patrons have films made for their own amusement?
Perhaps. Or maybe we'll have large quantities of patrons of only average means. Artists back in the day sometimes used a subscription model for financing. The Street Performer Protocol is something of a more recent spin on that. And of course, as I don't advocate abolishing copyright (since the situation doesn't warrant it yet), copyright also can be used to help secure investors.
But it's up to the person who made it to decide if they'd rather just go ahead and assign you the right to distribute their work as you see fit, or make money off of doing so. Since you obviously have great disdain for people who would like to charge for the experience of watching what it took them years to make, why do you care about the relationship they have with their customers?
Whether or not they have the right to control what people do with their work is a matter of public policy. It's everyone's concern, since it's everyone's rights that we are giving up in order to create copyrights in the first place. It's not as though copyrights grow on trees.
And talk them into waiving most or all of their copyrights
Why would they? Copyright expects people to be self-interested. Authors are interested in exploiting their copyrights for every penny they can get, and in expanding copyrights to get even more. We're living in the result of that. But the public is equally self-interested, and wants works for free, or at least as little as possible. Changing copyright law is easier and a generally better and fairer solution than getting authors to act against their own interests.
I realize that you want a world where everything is produced at the mom-and-pop level
I do not, actually.
I merely want the copyright system that best serves the public interest. There are three options: either we have the best possible system now; the best possible system requires more expansive laws than we have now, or; the best possible system requires less expansive laws than we have now. My belief, based on my experience studying and practicing copyright law, drawing upon my experiences as a professional artist, and as a member of the public who enjoys creative works, is that the third option is most likely the correct one. The only issue that remains is to figure out precisely what new, lesser, configuration of laws will produce the greatest public benefit.
If this happens to involve giant multinational corporations, then that's fine. If this happens to involve everything being at the mom and pop level, then that's fine too. I have no strong feelings either way in that regard.
Your canard about trillion dollar movies, straw man that it is, isn't very effective at changing the topic here.
It's no straw man. It's an analogy, of the type A:B as C:D. If no one is complaining about the law not making it viable to have trillion dollar movies in an age when we have quarter-billion dollar movies, then it seems perfectly reasonable to imagine reducing the law, and not complaining about the lack of quarter-billion dollar movies in a new age of one million dollar movies.
A movie can be made without being expensive to make. And a movie can be good without being expensive to make. And while people enjoy the spectacle of an expensive movie (unless it's bad, e.g. Waterworld, Heaven's Gate, Cutthroat Island), spectacle doesn't make it good. And certainly providing the environment in which such spectacle can be supported can be so costly as to outweigh whatever meager benefit the spectacle provides us with.
I have every faith that no matter what kinds of budgets people have to deal with, they can still make plenty of movies, and still make good movies. Will fewer things explode? Perhaps. I'm not worried about it.
I don't advocate that movies should have to be cheaper, mind you. Only that if it is a side effect of making copyright better serve the public interest, then it is not a bad thing. In
Feh. Cray Torrent is where it's at. Not only can you pirate movies with it, but you can comfortably sit down on the computer when you watch those movies!