It is expected that you know the laws of the countries in which you do business. If you do not know that you can act legally, you should not do business in that country. Thus, if you are an American company, you should endeavor to screen out countries whose laws you might be offending.
The price of doing business on a global scale is complying with laws on a global scale. World class businesses have world class expenses. If a market does not generate enough revenue to enter, then stay out of it. This is not a concern that is limited to the Internet. If you operate a mail order company and somebody orders your goods from Mongolia, you better be sure that what you're shipping is legal in Mongolia. The Internet isn't much different.
Really, though, unless you have assets in a country, you need not fear their legal judgments. So if you're too small to have assets in Mongolia, what do you care what a Mongolian court says about your company? It's not like they can seize your American assets (of course, international treaties might change that eventually-- just wait for the next GATT or WEF rounds).
American civil procedure provides for jurisdiction over foreign companies that do business in America. The theory is that if you come to America and avail yourself of our markets, resources, society, labor, and laws, you are bound to obey our laws. This does not mean that you can be sued in New York if you offer goods for sale in China and some American happens to buy them while on vacation in Beijing. It does mean, though, that if you knowingly advertise in America, ship goods to America, or provide services to American clients, you can be sued in America for violating American law.
On the Internet, this analysis is a little complicated because websites are accessed internationally, and it is difficult to detect what country people are really browsing from. Still, efforts can be made to exclude certain jurisdictions. For example, Lindows.com used to have a message on their website that refusing to do business in Washington state. This is because they were trying to avoid being dragged into court by MSFT in Washington state.
There is plenty of caselaw on this emerging area of law:
A Blue Note jazz club in Missouri was sued by the Blue Note jazz club in New York. A NY court held that the Missouri club's website, though viewable from NY, did not create jurisdiction in NY because the club was a strictly local Missouri operation. (Bensuan Rest. Corp. v. King, 126 F.3d 25)
Likewise, Cybersell of Arizona sued Cybersell of Florida for trademark infringement and was denied jurisdiction because Cybersell of Florida was not really offering its services to Arizonans. (Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414)
OTOH, Zippo (the company that makes lighters) sued Zippo.com (a company that provided fast news updates) in Pennsylvania. Since Zippo offered its news service to netizens across the land, including PA, they were adjuged to be doing business in PA and thus were amenable to suit.
As the cases make clear, there is a sliding scale that stretches from (1) passive website relating to local activities to (2) interactive website offering services to anybody across the land. Elcomsoft sounds a lot more like Zippo than it does the Blue Note jazz club in Missouri. If they are offering their services to Americans and offering downloads to Americans, they have to expect that they might be sued by Americans in America.
One interesting thing is that he doesn't talk about the "GNU Public License" and instead refers to it as the "General Public License". Does he really think that if he doesn't mention GNU we'll all forget they exist?
My Blackberry on Mobitex didn't do squat for me on 9/11.
I was in Manhattan on 9/11 frantically trying to reach my secretary, my girlfriend, my family, my friends. Cell phones were down, payphones were impossible to get to, and my blackberry was no better. I wrote over a dozen emails that day. I sent one right after the first plane and it went through. I tried to send one after the second plane, and it didn't go through. I couldn't send/receive until late that evening.
The only semi-reliable communication was landline, although service was spotty.
You don't understand the issues here. This has nothing to do with whether the defendant deserves to be smacked around.
I would say the same about a judge that comments about a rape case. Jackson made comments outside the courtroom likening Microsoft to a mule and about smacking the Microsoft upside the head with a two-by-four. He made these comments before the evidence was in. These weren't comments made while sentencing a defendant. These were comments made while the court was supposed to be a neutral arbiter of facts that had not judged the litigants.
By making these comments, Jackson gave the appearance of being biased, which he is supposed to avoid doing. If a judge in a rape case made similar comments, those comments would likewise be problematic.
The Audio Home Recording Act is flawed in one respect that I hope would be corrected if it applied to downloading music on the net. While the Act provides for royalty payments to compensate the music industry, it does not provide anybody with a license to copy copyrighted musical works. What this means is that when you buy an audio tape, you are paying royalties because you are an assumed music thief but you are not buying the right to copy music for that price. The Act does not make it legal to copy copyrighted music onto an audio tape.
In other words, if the Act were updated and applied to music downloads on the Internet, Napster would still be at Metallica's mercy. The royalties would have to be high enough that Metallica would prefer to receive the royalty checks than to have people buy their CDs in a store. That's pretty much impossible because the music industry makes a fortune on CDs, and I'm sure not going to pay CD prices to download from Gnutella.
The only real solution is to modify the Act to give net users, in return for indirect royalty payments, a license to copy music digitally and use it for noncommercial, nonpublic use.
What Constitutional provision prevents Congress from regulating the Internet, domain registration, Internet commerce, etc?
The Supreme Court examined the CDA and COPA without ever once even hinting that Congress cannot regulate these areas. The only question they asked was how much Congress can regulate speech on the Internet. Also, courts (but not the Supreme Court, to my knowledge) have routinely enforced anti-cybersquatting laws.
Either Congress can regulate in this area or the Supreme Court is misinterpreting the Constitution (a proposition of questionable possibility). On my reading, of the constitution, it is the former.
Housing shrinks as a percentage of your expenses as you earn more, making its COL differential less relevant as you earn more. Also, people buy fewer local goods as they earn more, again making COL differentials less relevant.
COL values assume a basket of goods or typical consumer habits. These typical profiles don't actually apply to most people. Also, the goods change in the basket are different from area to area. The average person in NYC spends much more on housing than the average person in Boulder. These average people, though, are purchasing completely different housing. What is the equivalent in Boulder of a 2BR in midtown Manhattan? Is it a 2 bedroom apartment in Boulder? Perhaps it's a 3 bedroom house in the suburbs of Boulder. The COL differentials are relatively meaningless because you can never really hold all else equal and measure the difference in monetary terms
Obviously, COL and the Homefair calculator can tell you _something_ about the difference in how expensive two cities are. My point really was that if you actually think you need to earn the numbers they claim in order to achieve the same standard of living, you are wrong.
To what degree does open source testing of system vulnerabilities expose those vulnerabilities to hackers that otherwise wouldn't have access to them? After all, it is difficult to probe vulnerabilities without pointing them out. Examining the source and instructions of OSSTMM should be mandatory reading for newbie hackers.
The Home Fair calculator is wrong. All it does is multiply your salary by a fixed number and then it claims that those salaraies are equivalent in the two cities.
Homefair does not take into account the fact that many of our costs these days are interstate or not subject to local price limitations. The number for the "cheaper" state thus does not take into account that while local goods might be cheaper, vacations are not cheaper, mail-order computers are no cheaper, etc. In other words, a million dollars worth of caviar in Austin is probably about the same as a million dollars worth of caviar in New York.
Also, people's spending habits and the mix of luxury vs. normal, local vs. imported vs. domestic goods changes radically as income scales up and down. No single multiple can ever really reflect the difference in how far salary will go for a wide salary range.
EBay does not need to force disclosure to create trust. Instead, EBay could allow varying levels of disclosure (as they do now) and allow sellers to ban certain buyers or classes of buyers-- i.e. people with low feedback ratings, people who haven't provided confirmed (real world) contact information, people that won't automatically provide payment information if they win the bid. Sellers could then simply refuse to deal with whatever EBay members don't meet their criteria of trustworthiness.
This would allow users to decide how much effort or disclosure they are willing to invest in trustworthiness while still providing sellers with as much protection as they care to have.
I've been in politics. The letters matter if there's enough of them. The form letters matter less. The phone calls matter a little less than that. The emails matter not at all.
Often, the letters and phone calls are simply tallied. Nobody reads them, they just note your position. Make sure you state your position clearly at the top of the letter. Don't bother putting too much nuanced argument in there. Save that for a face-to-face meeting.
Also, putting a check in the envelope helps a little too. Give a congressperson a couple hundred dollars, and you can hold his or her attention for a minute instead of a second.
Phone calls can make a difference, but there needs to be a lot of them. When the NY Times published a list of representatives to call about Shays-Meehan, the public overloaded the switchboards. Congress noticed that, and the pressure had a lot to do with the passage of Shays-Meehan.
Oh, and no threats of illegal vengeance. The FBI takes those pretty seriously these days.
Justice Jackson's comments went to the findings in the sense that he commented on the credibility of Microsoft and referred to smacking them around, which some have said sounds like he might make decisions about them that aren't wholly based on the merits.
Microsoft argues that Senator Tunney's personal opinion about the law, coming 25 years after the law was passed, is not relevant. What is relevant to Microsoft is the way the law has actually been applied and interpreted. Microsoft is not saying we shouldn't apply the Tunney Act. Microsoft is saying we should apply the Tunney Act the way it was written and has been applied rather than the way Senator Tunney demands 25 years later.
Microsoft's argument isn't a very good one, but it differs significantly from the straw man argument that you ridicule.
What made Justice Jackson's press interviews so bad that he gave those interviews before rendering a decision. Publication of the interviews was delayed until after the decision, but by making incendiary and opinionated comments to the press before rendering a decision, he gives the impression of bias that the appeals court found so distasteful.
Appealing a decision, though, is not a "trick" any more than any other legal defense. By your logic, Microsoft should have rolled over and admitted their culpability rather than litigate this case. Regardless of their guilt, we shouldn't fault them for fighting the charges against them.
The DMCA applies to the circumvention of copyright protection. Copying a copyrighted digital work (a typical music CD, for example) does not violate the DMCA. NOA's argument must be that the Flash Advance Linker circumvents whatever copy defeating mechanism they have built into their Game Boy Advance cartridges or unit.
There are several responses to the argument that copyrights incentivize production of intellectual property of artistic value, such as music. I will focus on just one: we don't need copyright because, even without it, all different kinds of musicians can make enough bucks to incentivize them to make music.
How Britney Pays for Boob Jobs
Much of what we pay for CDs goes not to musicians but to the distributors of the CDs, the record labels and CD stores, etc. So how does Britney pay for boob jobs? She make most of her money on concerts. That's why musicians tour, even though touring is usually much more effort than making new albums. If money-motivated musicians (like Britney) didn't need to make the CDs to create a market for their tours, they'd just tour all the time. If money-motivated musicians made more money off of CDs than they did off of tours, they'd just make CDs all the time. Touring is grueling, just ask Britney. She wouldn't do it if she weren't reaping the tall dollars.
Some musicians also make money off of marketing deals, which are a product of their fame and not their copyrights. Fame is not dependent on copyright. Fame is a result of the quality of your music, radio play, advertising, appearances on TV shows and publicity stunts. Even if Britney never saw a penny from concert or album sales, she'd be a trashy gajillionaire.
Distributors are the major winners in the copyright battle, not the musicians. Copyright incentivizes the distributor to keep distributing. Distribution is good thing and worth paying for. After all, if Britney is stuck singing in her bedroom, the world will be deprived of her music. Distribution, though, is friction that impede the steady bounce of Britney's charms to my head. It is not the thing we want to produce. What we want is more of Britney's music. If we can get Britney's music without all the CD stores and record labels, society loses little. The Internet, of course, enables this distribution without the need to pay the middleman.
Britney, then, could afford all the boob jobs she wants, regardless of copyright. All she needs is her talent.
I won't argue that Britney would make just as much money in a world without copyright. I simply argue that Britney makes enough to incentivize her to keep on bouncing around stage in skimpy outfits. Maybe Britney makes a little less money in a world with no or weaker copyright, but as long as she can float her rhinoplasty bills, she's golden. We'll leave aside all the non-monetary incentives she has for producing pop paradise (i.e. getting to bounce on Justin Timberlake).
Of course, not every musician has Britney's pneumatic talents. How do your average garage bands ever get out of the garage if they can't hawk CDs and T-shirts at monopoly premiums after their gigs?
How Kurt Pays for Heroin
Heroin is expensive. Customers can never get enough. The more you buy, the more you want. Kurt needs a fix, but he's broke. All he's got is his music, since nobody will give him a job unless he washes his hair. Kurt, of course, would never sell his grungy street cred for a job.
In a world without copyright, how does Kurt keep himself in clean needles and horse? It's easy, really. Kurt takes advantage of those cheesy guys that give mix tapes to their girlfriends. Kurt gives away his music as a loss leader for his shows. Kurt gives away music. Kurt wins fans. If Kurt manages not to alienate his fans with massively antisocial behavior, Kurt convinces his fans to show up at the Grunge Garden on Friday night and give him 8 bucks to play some music. It's not really that far-fetched. It worked for the Grateful Dead, and it can work for Kurt. The Grateful Dead eventually became so successful, they formed a cult and got a Ben & Jerry's flavor named after their frontman. If Kurt can manage not to blow his head off for a decade or two, he could be that famous.
How Natalie Pays for Therapy
But what if Kurt weren't Kurt? What if Kurt was a shy teenage girl named Natalie who can barely get up on stage and sing with her back to the audience? What kind of maniacs would pay to see that? Not many, I tell you. So Natalie can't make money off of shows. All she has is her beautiful voice. Does Natalie's shrink kick her off the couch? No, of course not. Natalie distributes her songs freely, far and wide (using the Internet, or as I like to call it, Heaven). Along with each song she passes a digital hat. Listeners can put money in the hat and send it back to her. The pennies from Heaven add up, and Natalie pays her shrink until she can bear the sight of her proto-emo fans. She doesn't reap millions (unless she gets famous), but she has enough to buy tissues into which she can weep while she stews about her next song.
Some People Won't Get Paid
Of course, this won't work for everybody. Some musicians will exit the market. Still, I warrant that the loss of a few musicians is offset by the gain of getting all the remaining music cheaper. I would even argue that the musicians lost would not be the ones bursting with inspiration. Those people (like Mozart) will produce music no matter the obstacles. The fact is that musicians don't need much. Every 16-year-old boy with a guitar is in a band and he's not making any money for it. Chances are he's not getting laid for it either. He's doing it for kicks and just making gas money would probably be enough incentive to keep him screaming off-key in public and embarrassing his friends.
While I can't put my finger on specific case law, Jimmy would be considered to be Mr. Jones's agent in the transaction. Since Jimmy has all the authority needed to install the software, any reasonable court would say that authority extends to agreeing to EULAs, since agreeing to EULAs is a commonplace part of installing software. This is so regardless of whether Mr. Jones understands all the deails.
If Jimmy installs pirated software for Mr. Jones to use, most courts would see Jimmy as furthering Mr. Jones's ends and conclude that Mr. Jones is responsible for all that Jimmy does, legal or not, to further those ends. In that case, Mr. Jones is on the hook and this is justifiable because (1) holding him responsible for Jimmy's actions forces Mr. Jones to carefully consider who he hires to install his software; (2)we can't let employers hide behind the bad acts of their employees, especially when they are the real beneficiaries of those bad acts; and (3) Jimmy is probably insolvent and it is better to hook Mr. Jones (as the beneficiary of the criminal copying) for the cash than for to force the victim (poor Microsoft) to eat the loss. If Mr. Jones does have to cough up to Microsoft, though, he can turn around and sue little Jimmy for getting him in such trouble.
Mr. Jones would have a good (but ultimately losing) argument for escaping liability. He would argue that Jimmy was never authorized to break the law. So, when Jimmy installs pirated software, he is "off on a frolick of his own" (yes, that is the legal term) and Mr. Jones is not responsible for Jimmy's actions. That argument would lose, but it's worth making.
While I am a lawyer, the above does not constitute legal advice and you should not rely upon it. Check with your lawyer if you find yourself needing legal advice. YMMV.
Slashdot Mirror
It is expected that you know the laws of the countries in which you do business. If you do not know that you can act legally, you should not do business in that country. Thus, if you are an American company, you should endeavor to screen out countries whose laws you might be offending.
The price of doing business on a global scale is complying with laws on a global scale. World class businesses have world class expenses. If a market does not generate enough revenue to enter, then stay out of it. This is not a concern that is limited to the Internet. If you operate a mail order company and somebody orders your goods from Mongolia, you better be sure that what you're shipping is legal in Mongolia. The Internet isn't much different.
Really, though, unless you have assets in a country, you need not fear their legal judgments. So if you're too small to have assets in Mongolia, what do you care what a Mongolian court says about your company? It's not like they can seize your American assets (of course, international treaties might change that eventually-- just wait for the next GATT or WEF rounds).
American civil procedure provides for jurisdiction over foreign companies that do business in America. The theory is that if you come to America and avail yourself of our markets, resources, society, labor, and laws, you are bound to obey our laws. This does not mean that you can be sued in New York if you offer goods for sale in China and some American happens to buy them while on vacation in Beijing. It does mean, though, that if you knowingly advertise in America, ship goods to America, or provide services to American clients, you can be sued in America for violating American law.
On the Internet, this analysis is a little complicated because websites are accessed internationally, and it is difficult to detect what country people are really browsing from. Still, efforts can be made to exclude certain jurisdictions. For example, Lindows.com used to have a message on their website that refusing to do business in Washington state. This is because they were trying to avoid being dragged into court by MSFT in Washington state.
There is plenty of caselaw on this emerging area of law:
As the cases make clear, there is a sliding scale that stretches from (1) passive website relating to local activities to (2) interactive website offering services to anybody across the land. Elcomsoft sounds a lot more like Zippo than it does the Blue Note jazz club in Missouri. If they are offering their services to Americans and offering downloads to Americans, they have to expect that they might be sued by Americans in America.
The things one learns. Thanks for the correction.
One interesting thing is that he doesn't talk about the "GNU Public License" and instead refers to it as the "General Public License". Does he really think that if he doesn't mention GNU we'll all forget they exist?
My Blackberry on Mobitex didn't do squat for me on 9/11.
I was in Manhattan on 9/11 frantically trying to reach my secretary, my girlfriend, my family, my friends. Cell phones were down, payphones were impossible to get to, and my blackberry was no better. I wrote over a dozen emails that day. I sent one right after the first plane and it went through. I tried to send one after the second plane, and it didn't go through. I couldn't send/receive until late that evening.
The only semi-reliable communication was landline, although service was spotty.
You don't understand the issues here. This has nothing to do with whether the defendant deserves to be smacked around.
I would say the same about a judge that comments about a rape case. Jackson made comments outside the courtroom likening Microsoft to a mule and about smacking the Microsoft upside the head with a two-by-four. He made these comments before the evidence was in. These weren't comments made while sentencing a defendant. These were comments made while the court was supposed to be a neutral arbiter of facts that had not judged the litigants.
By making these comments, Jackson gave the appearance of being biased, which he is supposed to avoid doing. If a judge in a rape case made similar comments, those comments would likewise be problematic.
The Audio Home Recording Act is flawed in one respect that I hope would be corrected if it applied to downloading music on the net. While the Act provides for royalty payments to compensate the music industry, it does not provide anybody with a license to copy copyrighted musical works. What this means is that when you buy an audio tape, you are paying royalties because you are an assumed music thief but you are not buying the right to copy music for that price. The Act does not make it legal to copy copyrighted music onto an audio tape.
In other words, if the Act were updated and applied to music downloads on the Internet, Napster would still be at Metallica's mercy. The royalties would have to be high enough that Metallica would prefer to receive the royalty checks than to have people buy their CDs in a store. That's pretty much impossible because the music industry makes a fortune on CDs, and I'm sure not going to pay CD prices to download from Gnutella.
The only real solution is to modify the Act to give net users, in return for indirect royalty payments, a license to copy music digitally and use it for noncommercial, nonpublic use.
What Constitutional provision prevents Congress from regulating the Internet, domain registration, Internet commerce, etc?
The Supreme Court examined the CDA and COPA without ever once even hinting that Congress cannot regulate these areas. The only question they asked was how much Congress can regulate speech on the Internet. Also, courts (but not the Supreme Court, to my knowledge) have routinely enforced anti-cybersquatting laws.
Either Congress can regulate in this area or the Supreme Court is misinterpreting the Constitution (a proposition of questionable possibility). On my reading, of the constitution, it is the former.
The press release does not have much info on what the suit is actually about. Here are some links to explain the dispute:
I couldn't find any propaganda on the Nusphere site. I guess they're downplaying the story.
Housing shrinks as a percentage of your expenses as you earn more, making its COL differential less relevant as you earn more. Also, people buy fewer local goods as they earn more, again making COL differentials less relevant.
COL values assume a basket of goods or typical consumer habits. These typical profiles don't actually apply to most people. Also, the goods change in the basket are different from area to area. The average person in NYC spends much more on housing than the average person in Boulder. These average people, though, are purchasing completely different housing. What is the equivalent in Boulder of a 2BR in midtown Manhattan? Is it a 2 bedroom apartment in Boulder? Perhaps it's a 3 bedroom house in the suburbs of Boulder. The COL differentials are relatively meaningless because you can never really hold all else equal and measure the difference in monetary terms
Obviously, COL and the Homefair calculator can tell you _something_ about the difference in how expensive two cities are. My point really was that if you actually think you need to earn the numbers they claim in order to achieve the same standard of living, you are wrong.
To what degree does open source testing of system vulnerabilities expose those vulnerabilities to hackers that otherwise wouldn't have access to them? After all, it is difficult to probe vulnerabilities without pointing them out. Examining the source and instructions of OSSTMM should be mandatory reading for newbie hackers.
The Home Fair calculator is wrong. All it does is multiply your salary by a fixed number and then it claims that those salaraies are equivalent in the two cities.
Homefair does not take into account the fact that many of our costs these days are interstate or not subject to local price limitations. The number for the "cheaper" state thus does not take into account that while local goods might be cheaper, vacations are not cheaper, mail-order computers are no cheaper, etc. In other words, a million dollars worth of caviar in Austin is probably about the same as a million dollars worth of caviar in New York.
Also, people's spending habits and the mix of luxury vs. normal, local vs. imported vs. domestic goods changes radically as income scales up and down. No single multiple can ever really reflect the difference in how far salary will go for a wide salary range.
EBay does not need to force disclosure to create trust. Instead, EBay could allow varying levels of disclosure (as they do now) and allow sellers to ban certain buyers or classes of buyers-- i.e. people with low feedback ratings, people who haven't provided confirmed (real world) contact information, people that won't automatically provide payment information if they win the bid. Sellers could then simply refuse to deal with whatever EBay members don't meet their criteria of trustworthiness.
This would allow users to decide how much effort or disclosure they are willing to invest in trustworthiness while still providing sellers with as much protection as they care to have.
I've been in politics. The letters matter if there's enough of them. The form letters matter less. The phone calls matter a little less than that. The emails matter not at all.
Often, the letters and phone calls are simply tallied. Nobody reads them, they just note your position. Make sure you state your position clearly at the top of the letter. Don't bother putting too much nuanced argument in there. Save that for a face-to-face meeting.
Also, putting a check in the envelope helps a little too. Give a congressperson a couple hundred dollars, and you can hold his or her attention for a minute instead of a second.
Phone calls can make a difference, but there needs to be a lot of them. When the NY Times published a list of representatives to call about Shays-Meehan, the public overloaded the switchboards. Congress noticed that, and the pressure had a lot to do with the passage of Shays-Meehan.
Oh, and no threats of illegal vengeance. The FBI takes those pretty seriously these days.
Justice Jackson's comments went to the findings in the sense that he commented on the credibility of Microsoft and referred to smacking them around, which some have said sounds like he might make decisions about them that aren't wholly based on the merits.
Microsoft argues that Senator Tunney's personal opinion about the law, coming 25 years after the law was passed, is not relevant. What is relevant to Microsoft is the way the law has actually been applied and interpreted. Microsoft is not saying we shouldn't apply the Tunney Act. Microsoft is saying we should apply the Tunney Act the way it was written and has been applied rather than the way Senator Tunney demands 25 years later. Microsoft's argument isn't a very good one, but it differs significantly from the straw man argument that you ridicule.
What made Justice Jackson's press interviews so bad that he gave those interviews before rendering a decision. Publication of the interviews was delayed until after the decision, but by making incendiary and opinionated comments to the press before rendering a decision, he gives the impression of bias that the appeals court found so distasteful. Appealing a decision, though, is not a "trick" any more than any other legal defense. By your logic, Microsoft should have rolled over and admitted their culpability rather than litigate this case. Regardless of their guilt, we shouldn't fault them for fighting the charges against them.
The DMCA applies to the circumvention of copyright protection. Copying a copyrighted digital work (a typical music CD, for example) does not violate the DMCA. NOA's argument must be that the Flash Advance Linker circumvents whatever copy defeating mechanism they have built into their Game Boy Advance cartridges or unit.
How Britney Pays for Boob Jobs
Much of what we pay for CDs goes not to musicians but to the distributors of the CDs, the record labels and CD stores, etc. So how does Britney pay for boob jobs? She make most of her money on concerts. That's why musicians tour, even though touring is usually much more effort than making new albums. If money-motivated musicians (like Britney) didn't need to make the CDs to create a market for their tours, they'd just tour all the time. If money-motivated musicians made more money off of CDs than they did off of tours, they'd just make CDs all the time. Touring is grueling, just ask Britney. She wouldn't do it if she weren't reaping the tall dollars.
Some musicians also make money off of marketing deals, which are a product of their fame and not their copyrights. Fame is not dependent on copyright. Fame is a result of the quality of your music, radio play, advertising, appearances on TV shows and publicity stunts. Even if Britney never saw a penny from concert or album sales, she'd be a trashy gajillionaire.
Distributors are the major winners in the copyright battle, not the musicians. Copyright incentivizes the distributor to keep distributing. Distribution is good thing and worth paying for. After all, if Britney is stuck singing in her bedroom, the world will be deprived of her music. Distribution, though, is friction that impede the steady bounce of Britney's charms to my head. It is not the thing we want to produce. What we want is more of Britney's music. If we can get Britney's music without all the CD stores and record labels, society loses little. The Internet, of course, enables this distribution without the need to pay the middleman.
Britney, then, could afford all the boob jobs she wants, regardless of copyright. All she needs is her talent.
I won't argue that Britney would make just as much money in a world without copyright. I simply argue that Britney makes enough to incentivize her to keep on bouncing around stage in skimpy outfits. Maybe Britney makes a little less money in a world with no or weaker copyright, but as long as she can float her rhinoplasty bills, she's golden. We'll leave aside all the non-monetary incentives she has for producing pop paradise (i.e. getting to bounce on Justin Timberlake).
Of course, not every musician has Britney's pneumatic talents. How do your average garage bands ever get out of the garage if they can't hawk CDs and T-shirts at monopoly premiums after their gigs?
How Kurt Pays for Heroin
Heroin is expensive. Customers can never get enough. The more you buy, the more you want. Kurt needs a fix, but he's broke. All he's got is his music, since nobody will give him a job unless he washes his hair. Kurt, of course, would never sell his grungy street cred for a job.
In a world without copyright, how does Kurt keep himself in clean needles and horse? It's easy, really. Kurt takes advantage of those cheesy guys that give mix tapes to their girlfriends. Kurt gives away his music as a loss leader for his shows. Kurt gives away music. Kurt wins fans. If Kurt manages not to alienate his fans with massively antisocial behavior, Kurt convinces his fans to show up at the Grunge Garden on Friday night and give him 8 bucks to play some music. It's not really that far-fetched. It worked for the Grateful Dead, and it can work for Kurt. The Grateful Dead eventually became so successful, they formed a cult and got a Ben & Jerry's flavor named after their frontman. If Kurt can manage not to blow his head off for a decade or two, he could be that famous.
How Natalie Pays for Therapy
But what if Kurt weren't Kurt? What if Kurt was a shy teenage girl named Natalie who can barely get up on stage and sing with her back to the audience? What kind of maniacs would pay to see that? Not many, I tell you. So Natalie can't make money off of shows. All she has is her beautiful voice. Does Natalie's shrink kick her off the couch? No, of course not. Natalie distributes her songs freely, far and wide (using the Internet, or as I like to call it, Heaven). Along with each song she passes a digital hat. Listeners can put money in the hat and send it back to her. The pennies from Heaven add up, and Natalie pays her shrink until she can bear the sight of her proto-emo fans. She doesn't reap millions (unless she gets famous), but she has enough to buy tissues into which she can weep while she stews about her next song.
Some People Won't Get Paid
Of course, this won't work for everybody. Some musicians will exit the market. Still, I warrant that the loss of a few musicians is offset by the gain of getting all the remaining music cheaper. I would even argue that the musicians lost would not be the ones bursting with inspiration. Those people (like Mozart) will produce music no matter the obstacles. The fact is that musicians don't need much. Every 16-year-old boy with a guitar is in a band and he's not making any money for it. Chances are he's not getting laid for it either. He's doing it for kicks and just making gas money would probably be enough incentive to keep him screaming off-key in public and embarrassing his friends.
If Jimmy installs pirated software for Mr. Jones to use, most courts would see Jimmy as furthering Mr. Jones's ends and conclude that Mr. Jones is responsible for all that Jimmy does, legal or not, to further those ends. In that case, Mr. Jones is on the hook and this is justifiable because (1) holding him responsible for Jimmy's actions forces Mr. Jones to carefully consider who he hires to install his software; (2)we can't let employers hide behind the bad acts of their employees, especially when they are the real beneficiaries of those bad acts; and (3) Jimmy is probably insolvent and it is better to hook Mr. Jones (as the beneficiary of the criminal copying) for the cash than for to force the victim (poor Microsoft) to eat the loss. If Mr. Jones does have to cough up to Microsoft, though, he can turn around and sue little Jimmy for getting him in such trouble.
Mr. Jones would have a good (but ultimately losing) argument for escaping liability. He would argue that Jimmy was never authorized to break the law. So, when Jimmy installs pirated software, he is "off on a frolick of his own" (yes, that is the legal term) and Mr. Jones is not responsible for Jimmy's actions. That argument would lose, but it's worth making.
While I am a lawyer, the above does not constitute legal advice and you should not rely upon it. Check with your lawyer if you find yourself needing legal advice. YMMV.