"Probably some dim-wit bean counter decided that it wasn't worth it to develop a Flash version of it. ALL the games out there in Flash... you gotta wonder what is going on in the minds of these execs and their lackeys lacking vision. Would it have really been THAT hard, Mattel/Hasbro?"
There are various licensed Flash/Java/etc. Scrabbles and Scrabble variants on pogo.com, games.com and similar sites. I don't believe that Mattel/Hasbro developed them; rather, they licensed the rights to the game site operators who went off and developed their own code.
Hasbro's issue is that the Scrabulous developers did their work without seeking a license. Hasbro doesn't hate the idea of people playing Scrabble online; rather, they want to make money while it happens.
Before anybody points out the implicit greed behind a profit motive for online gaming -- just keep in mind that the Scrabulous developers have a profit motive, too. And, they're apparently profiting quite handsomely.
I know that sympathies are clearly with the Scrabblicious developers here, so I won't try to argue that point. The feeling in the community appears to be that since the guys aren't selling it and because Scrabble's been on the market for a while, it's fair game for a copy, and no authorization or payment to the rightsholder should be necessary. But, as a thought experiment, what would happen if the situation were reversed?
Some independent developer comes up with a totally new game concept and codes it as a Facebook app. It's not something simple, like Sudoku, but a game with distinctive play mechanics, board artwork, and the like.
Hasbro (or some similarly large commercial entity) then copies the game and starts making money off of it. Not an "inspired by," and not a new game that is evocative of the Facebook app -- a direct copy, down to the rules and gameboard artwork. They don't seek permission. And, they don't pay the rightsholder -- the independent developer who came up with the game.
I think it's obvious that the consensus Slashdot sympathies would not be with Hasbro.
"I design and install computer systems for a living. People pay for my time. Let's say I set up the network for some small startup operation called "Facebook." (I didn't, purely hypothetical) That operation takes off using the backbone that I set up, becoming one of the fastest growing and most successful business on the Internet. Guess how much of that $15 billion I'd see. (Or expect to see) ZERO. Never mind that it was my genius design that enabled them to do what it was they were trying to do. I went in, did a service, and I was done. Why is photography inherently different?"
Well, you answered your own question when you pointed out that you're paid by the hour. But the choice is yours... many consultants in your field and others indeed do what's called "spec work." If that sounds like a better deal to you, then you can try offering your services to companies for free, in exchange for a cut of sales. "Spec" sounds for "speculative," in the sense that by doing the work for free, you're speculating that it will be a good investment of your time in terms of how much money you eventually make.
This is how many photographers work. The fellow in question wasn't paid by anybody when he took the photo. The record industry is also speculative; labels invest money in bands with hopes that the outcome will work in their favor.
And, there are photographers who eschew spec work and instead work by the hour or by piece; the term here is "work for hire," and it's similar to what you do now.
You see, setting up computer systems and taking photographs aren't all that different. You prefer the work-for-hire method; the fellow in question prefers spec work. But you can easily switch to spec work if you think it suits you better, and the fellow in question is willing to take work-for-hire jobs. Choose whichever works best for you, and good luck.
"And while I'm at it, how about if we use this case as an example to use against the RIAA the next time they say a single instance of copyright violation causes millions in damages? $19k sounds about right to me."
Interesting, you're the 2nd person to post in this thread to write of "millions." Unfortunately the reality is that the record labels have thrown around $150K per work, which is the statutory maximum. This number is also mentioned in the PDF linked from the summary.
I disagree with you. I absolutely do not want record companies collecting $19K per work from file sharers. For non-commercial file sharing, I think a cap of, say, $10K per defendant (not per work... per derfendant) should do fine. It's high enough to provide reason not to make unauthorized copies (look at all the hand wringing that goes on around here each time a kid pays a $3K settlement), but it won't ruin somebody's finances for life.
"What I fail to understand is, if this is an issue for Apple, why do they allow you to burn 5 CDs of iTunes downloads? Afterall, burning iTunes AACs to CD removes the DRM, then the CD can be cloned over and over."
Don't worry -- a lot of people don't understand this. Interestingly enough, it's because Slashdotters are so smart that they often don't get things like this! Before you freak out, read on:
Preventing crimes, license violations, etc. is not a binary, all-or-nothing thing. It's often all about providing just enough of a barrier that you stop most people. Apple knows that they can't stop all license violations, but they try to find a balance.
In your particular example, they are counting on the fact (and here's where many Slashdotters go astray) that many people either:
Don't know how to
Don't want to,
Want to, but simply don't feel it's worth the effort to
...burn a CD, re-rip it, and then name and tag the tracks. Yes, I know: it's easy for you and most Slashdotters. But, the fact remains that there are lots of people who fall into the groups above.
License violation is hardly the only industry where vendors strive to find this balance. Stores could, if they wanted to, completely eliminate shrinkage (shoplifting), but the "cost" in terms of inconvenience to customers would be too much.
And, I'm sure there are professional car thieves who ask each other: "why do car manufacturers even bother putting in theft deterrent systems when it's so easy for smart guys like us to get around them?". The answer is, of course, that automotive theft-deterrent systems don't have to be 100% effective to be useful -- the alarm system manufacturers try to find that line where the systems are "good enough" to deter a critical mass of thieves, without getting in the way of the car's owner.
And that's the approach that Apple takes. They could completely disallow burning of playlists to CD and close the "hole" of which you speak -- but that would make the software far less useful to regular customers who have no interest in violating the license. They've chosen a burn count of five, I believe, because it covers most examples of personal use in action (ie. the average person doesn't own more than five CD players, even counting the ones in their car). Apple understands just as well as you and I do that there will always be people who don't care much about respecting Apple's rights, but they also understand that there are enough people who'll hit that limit of five and go no further. Those people likely aren't Slashdotters, but there's enough of them out there to build a business on.
I don't see a problem with this. Apple protects their rights (at least, as they interpret them), and as the writeup says, this might make more consumers leave the teat of iTunes and try competing sites like Amazon MP3, which are 100% DRM-free. This, in turn, will show record companies that you can still make money selling unprotected tracks, so they'll make more content available in unprotected format, which will in turn boost the iTunes library of non-DRM material.
This won't put iTunes out of business, but it will give them some stronger competition. And even the most strident fanboys will acknowledge that competition is good... even for Apple.
"3-P2P downloads of music and movies have been shown to increase sales of music and movies...People don't like to buy something that they haven't heard/seen. Downloading copyrighted movies and music via P2P IS piracy, but it is not hurting the movie or music industry as much as they are hurting themselves by trying to hang on to their outdated business model, and treating their customers like they are ALL criminals."
If P2P increases sales, then the music industry's business model certainly isn't outdated -- it's only gotten stronger through the explosion of P2P! There appear to be two popular schools of thought: that P2P increases sales, and that the music industry's hemorrhaging of cash is due to anything but piracy. Then, there are folks who recognize that P2P has replaced sales for a good chunk of the consumer base, and that it's spelling doom for the "sell recorded music" business model. But these theories tend to run counter to each other.
The survey most commonly cited by Slashdotters is the one from last year which concluded that people who've used P2P services own more (legally acquired) music. But this is correlation, not causation -- people who use P2P are more likely to be music fans, and music fans are more likely to own music; people who are not music fans don't buy CDs, and don't pirate music, either. This makes perfect sense. But far too many people interpreted the study as inferring that piracy leads to sales -- a bit of "confirmation bias," as the statisticians like to say.
"This is the Big One...The RIAA, and MPAA need to go after the big pirates...you know...the ones who are making hundreds of thousands of illegal copies of copyrighted movies and music, and selling them all over the world."
The RIAA, MPAA, BSA, and law enforcement do chase counterfeiters with vigor. They've even gotten various government agencies behind them -- performing police raids at flea markets on the local level, and doing the state department level saber rattling with China regarding their tendency to look the other way when CD pressing plants churn out counterfeit media in volume.
While I agree with your sentiment, I think we're in the minority. When news of these actions occasionally makes it to Slashdot, the bulk of the sympathy is clearly with the counterfeiters. A common sentiment is that the counterfeiters are just trying to make a living, and that they're largely not interfering with legitimate sales, as somebody who buys that $3 screener copy likely wouldn't have bought the real thing.
I'm guessing you haven't read the curriculum? There's a TON of stuff on fair use; one of the exercises is for the students to go out and do their own research on the subject. Also interesting was a section on EULAs and their implications; the exercise includes reading several real-life EULAs (including that of the Xbox Live! service) and understanding their consequences and the importance of reading them.
The biggest problem I saw with the curriculum is that the Q&As are vague or misleading (just as the question on the MyBytes site is misleading in its phrasing). Otherwise, it goes indepth into many of the vagaries of copyright law and it encourages discussion and outside research. It sure isn't perfect, but it's not the one-sided propaganda that you've characterized it to be.
"I wonder how much of this Microsoft sponsered curriculum with cover public licensing."
Take a look at that "MyBytes" site linked from the summary. The game offers distribution options which are analagous to public licensing and Creative Commons. So, right out of the gate they are dispelling the notion that "copyright" automatically means "for sale" or "can't be used for derivative works."
I agree with you that Creative Commons is an important development and that young people should be encouraged to use it. Looks like the folks at Microsoft who developed the curriculum agree with us, too.
The phrase "fair use" is found seven times in the first unit alone. I haven't yet read the other units, but if you're curious, you can check them out yourself. I suppose this is a "RTFU."
That the curriculum contains ample coverage of fair use shouldn't be surprising; it's an integral part of copyright law.
"The only people who go to jail for infringement are commercial bootleggers and I can't imagine that'd include anyone under the age of 18 AKA high school students."
Not correct from either a factual or practical standpoint. I grant you that this is what many people believe to be the case, but nonetheless, it's incorrect. This may be one of the reasons why Microsoft is launching the education campaign: to counter falsehoods like the one you've relayed.
At any rate, Kevin Gonzalez uploaded a work print of The Hulk to a P2P network. He did this not for money; perhaps he was part of the scene or he just did it because he thinks information should be free. He was sentenced to six months of home confinement. William Fitzgerald was a fellow who traded warez via IRC; his mistake was making them available on his web server. Again, not for money. Nonetheless, he got four months in prison and four months in home confinement. Then there was Operation Buccaneer, which targeted some of the warez rings (again: amateur warez traders, not bootleggers!) and handed out jail sentences of 18 to 46 months. That's almost four years for non-commercial warez trading.
The "you have to sell it for it to be criminal infringement" is one of those Slashdot memes that will never go away (your post is indeed already 4, informative when it's quite simply incorrect, while this correction will likely languish at 2 or lower). We'll continue to tell each other this, and we'll want it to be true. But the fact remains that Gonzalez and the rest did the jail time. Microsoft will actually be doing a disservice to teens if they don't explain the hard realities of copyright law.
"This is the same situation as any country.... including the USA - Do you think the RIAA gives money to non-US Companies, or just the ones it represents?"
The RIAA doesn't give money. They're a trade group.... they don't deal with the day-to-day accounting of divvying up the proceeds from record sales. And rather than pay money to the labels, it's the other way around: labels pay the RIAA for the priveledge of membership.
Record companies pay two forms of royalties:
Mechanical royalties: these go to composers and lyricists. More often, they go to a music publisher which represents the composer or lyricist. Sometimes the publisher is a one-person company; sometimes it's a huge company and there are a few cases of record companies also owning publishing arms. It's these mechanical royalties that were in the news the other day, as the record companies and music retailers want to get them changed from a fixed cost per sale, to a percentage of the sale (the royalty rates are set by law, not by contract). But, to answer your question: the record company pays out, regardless of the nationality or home address of the composer or lyricist, or the country where the publishing company is incorporated. Likewise, publishing companies pay out to their members regardless of where the member lives.
Contractual royalties: these are the royalties that are paid to the performer... the "name" on the CD. Unlike mechanicals, often the contractual royalties are held back to cover the costs of production, so the performer often sees little or none of this money that's set aside.
Back to your question as it relates to people outside of your country: mechanicals are determined by the law of the country where the label is located. So, say the law in the US is nine cents per track (this is true), but the law in Elbonia dictates a minimum of $0.25 a track (this is made up). If an Elbonian national writes a song which is recorded by an artist who's signed to a US label, the Elbonian will only get nine cents per sale.
Only in a "two wrongs make a right" sense. It's clear that the levy is not equitable. Many people (who would otherwise see some money from your purchase) get no benefit rom the levy... including "good guys" like non-Canadian performers (and I am referring to performers who just manage to scrape by, not just the "MTV Cribs" class). And, the money collected is a mere pittance compared to the money that's likely lost, even if we only include that small subset of pirates who do so to save money (vs. the "wouldn't have bought it anyway" crowd). What's dangerous about the levy is (as you've shown) it actually encourages piracy, by giving people the sense that the levy undoes the damage, when it quite simply falls far short.
"But if I were *forced* to pay them for all blank media, I would feel jolly free to copy as much as I want, whenever, for whatever purpose. They would infringe my rights, why can't I return the favor?"
Oh, please -- that's a cop-out. We do not have a God-given right to avoid taxes, levies, or tariffs. Everything we buy is taxed and re-taxed, and you Canadians have it particularly bad. Some of it is obvious, such as the stuff that's added when you buy (sales tax and the media levy). Some -- like your gasoline tax -- is built into the price, and keep in mind that on average, 1/3 of the price of gas in Canada is the tax. On top of that, there are taxes at the border. If a product is imported into the US from China and then shipped to Canada, there are two tariffs - and the retail price reflects it. Have you noticed that even though the Canada dollar is now stronger than the US dollar, you're still paying a premium in your retail price? That mouse or keyboard that's $49 in the US is still $59 or higher in Canada. In the past, the exchange rate justified it. But it's still there, and one reason it's still there is because your government collects a tax at the border for many electronic goods.
Now, imagine if everybody took the same stance as you that taxes, levies and tariffs violate their "rights." You would call bullshit right quick. Why try to pull the same shenanigans?
Acknowledge that you pirate to save money, or that you don't particularly care if an artist or anybody sees any money from the sale of their work. But a justification on your non-existent right not to be taxed isn't sound.
"The RIAA and MPAA are not welcome to a single cent of the tax we pay on blank media. It's a Canadian tax. It goes to the CRIA ( you know, the Canadian Recording Industry Association) (and presumably other Canadian organizations)."
Most of it goes to various societies and groups representing publishers, composers, performers (the CMRRA, NRCC, SOGEDAM, SODRAC, and SOCAN). Some goes to record companies, who may also be CRIA members. But none goes directly to the CRIA, nor is the CRIA involved in the distribution of the money to record companies or artists. It's a bit like saying that when you pay your doctor, it goes to the AMA -- perhaps it does in one sense, but that's not the most accurate way to put it.
For what it's worth, only Canadian artists and whatnot are eligible. While I'm guessing that the average Canadian pirate will have a higher percentage of Canadian music in their collection than the average pirate elsewhere in the world, my guess is that most of the music pirated in Canada is actually from elsewhere. If you're an American artist and your stuff is being enjoyed by Canadians who think that you're getting paid when they buy blank media, you're both wrong. Don't expect that check from the CPCC anytime soon!
This is why the Canadian levy is a terrible, terrible idea. It's nationalistic (as it kicks a little cash to Canadian artists each year), but it's hardly equitable. It's a tax on everybody who buys media -- whether they pirate or not -- and it gives many people the false belief that the artist is being compensated, thus legitimizing piracy. For Canadian artists, I don't believe the money makes up for lost sales, and as covered above, non-Canadians don't see any money.
"Since P2P filesharing is legal (though sharing particular files may not be), and there are no other alternatives with the same features, this seems to be nonsense."
The Ars Technica article was using a bit of condensation for readability. I think the context here is understood: use of P2P for trading unauthorized files. I believe the Ars audience understands that P2P applications can be used legally, that's not the application of choice for most college students.
I don't think the colleges are obliged to offer an alternative "with the same features" (ie. DRM-free MP3 files provided at no charge) as P2P. This may seem unfair, but we do not have a God-given right to our own free MP3 file of any song we desire. What I believe will happen is that the various legal services will step up with a subsidized service that offers streaming and/or DRM.
It may be an unpopular opinion around here, but free MP3s aren't exactly oxygen. The biggest rationale (besides the most honest one: saving money) is that P2P allows us to sample and learn about new music, some of which we might buy. But I've had incredibly good luck in finding lots of great music and broadening my music horizons using Pandora, last.fm, and iTunes' search and exploration features. Nutsie.com is my new toy of choice. Again, once we acknowledge that we don't have a God-given right to free MP3 files, we can find plenty of acceptable substitutes to enjoy all the music we want freely and legally. Anybody who claims that they need P2P to explore new music in a "try before you buy" mode either isn't being honest with themself, or simply hasn't done their home work.
"Maybe the Pirate Bay needs to find a way to include a whole bunch of other stuff in their indexes (witha checkbox to remove those results on queried results if the user would like) - then any similar laws wouldn't be able to affect them without affecting Google and every other search engine - and who's going to put an onerous burden on them?"
Such a tactic would depend on finding a court that didn't understand the difference between Google and a site set up for the purpose of promoting, facilitating and encouraging piracy. I know that we all like to joke about stupid judges and stupid prosecutors, but you need to take a pragmatic view here: if you can easily understand the difference, expect the court to understand, as well.
The original Napster tried the "we're just a search engine" defense. Grokster went the safe-harbor route as well. The courts didn't buy it in either case, yet this bit of history is apparently unknown to many Slashdotters. If TPB were operating in the US, it would be a legal slam dunk. It's safe to be cynical here and expect the laws of the EU nations to follow.
"I'm not saying it to pick a fight, but it stands to reason that Google's cache and archive.org can be modified easily enough by anyone with the right know-how (basically, you just modify the site that either one is caching). Will the IFPI demand their removal next?"
Probably not. Despite the braying of the "it's just lke Goooooooooogle!" idiots, intent and scope are likely big factors European-style law, just as they are in the US. This goes for crimes as well as torts -- in Europe, juast as in the US, your fate might be quite different if you accidentally run down a pedestrian in your car, vs. plotting to kill them with a handgun. The law tends to have these sorts of tests to avoid the slippery-sloping of the examples you've given.
"TPB, even if all it ever did was IP violation, contains zero evidence of any crime (IP and copyright violations are civil acts, not criminal ones - it only becomes criminal when you try to sell the copies)."
That's not the case in the USA, for what it's worth. All you have to do in the US is distribute more than $1,000 worth of work in three months -- no sales required. If TPB were being tried in the US, it would be for facilitating copyright infringement, or contributory infringement, or something similar. I don't know if the same test applies for civil vs. criminal in these cases. I believe it's moot, as it would be in the best interests of the rightsholders to keep filing lawsuits a la MGM v. Grokster.
And, of course, in Sweden it might be completely different.
"create bad precedents"
Huh? What precedent? Do you mean the Google slippery slope? Don't worry about this: the courts understand the difference between Google and a site set up to facilitate, promote and encourage piracy.
"perform collateral blockage (I think the legal term is "estoppel"?) against legitimate distributors who use/rely on that particular torrent tracker."
That's not what estoppel is generally understood as meaning. I think the closest concept that applies to the situation you're describing is "tortuous interference," but you wouldn't have a case. The ten-second solution is "just use another tracker" and if you can come up with that instantly, then so would the defendant.
"The argument made on Slashdot, and elsewhere, is that the music is the promotional material. No promotional material is ever 100% effective. If I'm at the grocery store, get a free sample and don't purchase the product I don't feel any obligation to pay for the sample I've received."
It can be promotional material. It can incite the customer to buy more music from the same artist, or do Ye Olde t-shirt and concert thing. But, any product can also be described in similar terms. Hyundai could give away cars as promotional items. But it's their choice.
I believe the GP's point is that MP3 files' primary benefit is as a promotion or advertisement -- and that's patently false; in fact, this argument is often used as a self-serving validation for copyright infringement. The great thing about the free market is that the copyright holder has a choice. Many record labels can and do release select tracks for free, and lots of unsigned artists release their entire catalogs for free under Creative Commons. But copyright gives the rightsholder the right not to.
Many Slashdotters believe that the key to success is to release your creative works freely, and relying on ways to make money other than selling your work piece by piece. Copyright law is opt-in: you don't have to sell your product, and you don't have to keep your stuff under copyright for the maximum duration. This is often a business decision; your personal goals and the free market work together to make their magic. Many Slashdotters would like these rights taken away from the producers, for the benefit of the consumers. This is all a bit too Randian for me.
"P2P is advertising and MP3s are free samples of a far better commodity."
I've purchased hundreds of MP3 and AAC tracks. Not once have I proceeded to purchase the CD version, nor have I gone to see the performer play live, or -- to use the Slashdot cliche -- "bought a t-shirt." The track was the product, not an ad. And the fact is that there are many, many consumers like me. If I could have legally gotten those MP3 files for free, then the copyright owner would have seen exactly zero money from me. Let's not pretend that MP3 files hold no value... while I acknowledge that many people reading this use P2P as their primary source for music, Apple and others have done quite well in the business of selling downloads.
"I hold hundreds of copyrights, two having ISBN numbers. The two registered ones would have gone into the public domain already if I'd had my way, as they are both over 20 years old."
Possibly a dumb question... if you hold the copyright, don't you have your way? Does obtaining an ISBN hamper your ability to release something into the public domain?
I'm thinking of what Cory Doctrow has done with some of his stuff... he didn't see the need for it to be under copyright any longer, so he set it free. His stuff, too, has ISBNs, so I don't understand what the difference is here.
"The gov't gets about a third. And the industry takes what's left (still probably over 60%). Why, exactly, does the industry feel it deserves (in my rough estimate) 15x the profit the artist gets when all they do, aside from take your money, is point you to a download?"
I'm pretty sure that the record company doesn't keep the rest of the money. In addition to the 4% going to the songwriter, as you mentioned, they also owe money to the performer (who often gets a lot more in royalties than the songwriters), as well as to lots of people who worked on producing the music.
In fact, record companies have been notoriously bad at holding on to the rest of the money lately -- many of them are even losing money, which means that they are spending more to produce the music than they are earning back from sales. Forget saving it in a bank account somewhere... they don't even have anything left after paying for payroll and overhead. The record industry is hurting badly, which is one reason why I believe they are resorting to desperate measures like trying to get the mechanical royalties lowered.
"I heard it was too complicated to do it that way. Maybe with modern computers it may be easier. It used to be that radio-stations etc. would simply[1] keep a list of each song they played and periodically handed that list over to the RIAA, who applied a set even percentage and collected corresponding fees to be distributed. It worked well for several decades. In fact, I think that patents should follow a similar technique so that you don't get slammed with surprise royalties."
Huh? The RIAA doesn't deal with terrestrial radio... that's ASCAP and BMI, who represent artists. That's the beauty of terrestrial radio royalties... it goes directly to the artists. The record companies don't see any of it.
This is exactly why the RIAA wanted to get its paws on the royalties from streaming radio. They've missed 90 years of radio royalties; thus, they successfully got the rules changed. Thus was formed SoundExchange. The artists still get much (or most) of the money, but now the record companies line up for their share, too.
"Why is the RIAA even able to set any sort of financial policy for its parent companies? I thought it was just a big bunch of lawyers! Should not each recording studio set compensation based on the contracts it signs with the artists?"
Remember -- mechanical royalties are set by law. This isn't a contract issue. You're thinking of the royalties paid to the performers on the recording -- those are contractual.
Since the songwriting royalties are set by law, it's in the best interest of the record industry to use their trade group to fight to get the law changed. And, that's what the RIAA is -- a trade group. They're much like the AMA is to doctors... it's the AMA which you see lobbying congress, not individual MDs.
"Is the songwriter the only artist who is compensated for the download? Is the performing artist or band also compensated, and if so by how much? As much as I don't like the RIAA, I also want to understand the surrounding context. I guess the real question this begs is exactly where does all the money go?"
The composer, lyricist and performer each get royalties. The royalties for composers and lyricists are set by law (hence the news whenever the record labels want to change it), while the performer's royalties are contractual. I believe the law allows for lowering royalties for the composer/lyricist if they're also the performer. The royalties for the composer and lyricist typically don't go directly to the composer and lyricist, but to a publishing company, which keeps a cut in exchange for tracking payments. Often the publishing company is a one-person company set up by the composer or lyricist. In a few cases, the publishing company is actually owned by a record company.
This page is a bit out-dated, but it covers the basics of how royalties are paid for CD sales. Downloads, as we've seen, are a bit different.
What it boils down to is that the royalties are often the biggest slice of the pie. The rest of the money goes toward paying the salaries of various other people at the record company. The popular perception that the record company gets the rest (in the sense of hoarding it some Gringotts-style bank) isn't true too much nowadays with the prevailing health of the industry -- Warner Brothers lost money last year, so they're spending money faster than they're making it.
Slashdot Mirror
"Probably some dim-wit bean counter decided that it wasn't worth it to develop a Flash version of it. ALL the games out there in Flash... you gotta wonder what is going on in the minds of these execs and their lackeys lacking vision. Would it have really been THAT hard, Mattel/Hasbro?"
There are various licensed Flash/Java/etc. Scrabbles and Scrabble variants on pogo.com, games.com and similar sites. I don't believe that Mattel/Hasbro developed them; rather, they licensed the rights to the game site operators who went off and developed their own code.
Hasbro's issue is that the Scrabulous developers did their work without seeking a license. Hasbro doesn't hate the idea of people playing Scrabble online; rather, they want to make money while it happens.
Before anybody points out the implicit greed behind a profit motive for online gaming -- just keep in mind that the Scrabulous developers have a profit motive, too. And, they're apparently profiting quite handsomely.
I know that sympathies are clearly with the Scrabblicious developers here, so I won't try to argue that point. The feeling in the community appears to be that since the guys aren't selling it and because Scrabble's been on the market for a while, it's fair game for a copy, and no authorization or payment to the rightsholder should be necessary. But, as a thought experiment, what would happen if the situation were reversed?
I think it's obvious that the consensus Slashdot sympathies would not be with Hasbro.
"I design and install computer systems for a living. People pay for my time. Let's say I set up the network for some small startup operation called "Facebook." (I didn't, purely hypothetical) That operation takes off using the backbone that I set up, becoming one of the fastest growing and most successful business on the Internet. Guess how much of that $15 billion I'd see. (Or expect to see) ZERO. Never mind that it was my genius design that enabled them to do what it was they were trying to do. I went in, did a service, and I was done. Why is photography inherently different?"
Well, you answered your own question when you pointed out that you're paid by the hour. But the choice is yours... many consultants in your field and others indeed do what's called "spec work." If that sounds like a better deal to you, then you can try offering your services to companies for free, in exchange for a cut of sales. "Spec" sounds for "speculative," in the sense that by doing the work for free, you're speculating that it will be a good investment of your time in terms of how much money you eventually make.
This is how many photographers work. The fellow in question wasn't paid by anybody when he took the photo. The record industry is also speculative; labels invest money in bands with hopes that the outcome will work in their favor.
And, there are photographers who eschew spec work and instead work by the hour or by piece; the term here is "work for hire," and it's similar to what you do now.
You see, setting up computer systems and taking photographs aren't all that different. You prefer the work-for-hire method; the fellow in question prefers spec work. But you can easily switch to spec work if you think it suits you better, and the fellow in question is willing to take work-for-hire jobs. Choose whichever works best for you, and good luck.
"And while I'm at it, how about if we use this case as an example to use against the RIAA the next time they say a single instance of copyright violation causes millions in damages? $19k sounds about right to me."
Interesting, you're the 2nd person to post in this thread to write of "millions." Unfortunately the reality is that the record labels have thrown around $150K per work, which is the statutory maximum. This number is also mentioned in the PDF linked from the summary.
I disagree with you. I absolutely do not want record companies collecting $19K per work from file sharers. For non-commercial file sharing, I think a cap of, say, $10K per defendant (not per work... per derfendant) should do fine. It's high enough to provide reason not to make unauthorized copies (look at all the hand wringing that goes on around here each time a kid pays a $3K settlement), but it won't ruin somebody's finances for life.
"What I fail to understand is, if this is an issue for Apple, why do they allow you to burn 5 CDs of iTunes downloads? Afterall, burning iTunes AACs to CD removes the DRM, then the CD can be cloned over and over."
Don't worry -- a lot of people don't understand this. Interestingly enough, it's because Slashdotters are so smart that they often don't get things like this! Before you freak out, read on:
Preventing crimes, license violations, etc. is not a binary, all-or-nothing thing. It's often all about providing just enough of a barrier that you stop most people. Apple knows that they can't stop all license violations, but they try to find a balance.
In your particular example, they are counting on the fact (and here's where many Slashdotters go astray) that many people either:
...burn a CD, re-rip it, and then name and tag the tracks. Yes, I know: it's easy for you and most Slashdotters. But, the fact remains that there are lots of people who fall into the groups above.
License violation is hardly the only industry where vendors strive to find this balance. Stores could, if they wanted to, completely eliminate shrinkage (shoplifting), but the "cost" in terms of inconvenience to customers would be too much.
And, I'm sure there are professional car thieves who ask each other: "why do car manufacturers even bother putting in theft deterrent systems when it's so easy for smart guys like us to get around them?". The answer is, of course, that automotive theft-deterrent systems don't have to be 100% effective to be useful -- the alarm system manufacturers try to find that line where the systems are "good enough" to deter a critical mass of thieves, without getting in the way of the car's owner.
And that's the approach that Apple takes. They could completely disallow burning of playlists to CD and close the "hole" of which you speak -- but that would make the software far less useful to regular customers who have no interest in violating the license. They've chosen a burn count of five, I believe, because it covers most examples of personal use in action (ie. the average person doesn't own more than five CD players, even counting the ones in their car). Apple understands just as well as you and I do that there will always be people who don't care much about respecting Apple's rights, but they also understand that there are enough people who'll hit that limit of five and go no further. Those people likely aren't Slashdotters, but there's enough of them out there to build a business on.
I don't see a problem with this. Apple protects their rights (at least, as they interpret them), and as the writeup says, this might make more consumers leave the teat of iTunes and try competing sites like Amazon MP3, which are 100% DRM-free. This, in turn, will show record companies that you can still make money selling unprotected tracks, so they'll make more content available in unprotected format, which will in turn boost the iTunes library of non-DRM material.
This won't put iTunes out of business, but it will give them some stronger competition. And even the most strident fanboys will acknowledge that competition is good... even for Apple.
"3-P2P downloads of music and movies have been shown to increase sales of music and movies...People don't like to buy something that they haven't heard/seen. Downloading copyrighted movies and music via P2P IS piracy, but it is not hurting the movie or music industry as much as they are hurting themselves by trying to hang on to their outdated business model, and treating their customers like they are ALL criminals."
If P2P increases sales, then the music industry's business model certainly isn't outdated -- it's only gotten stronger through the explosion of P2P! There appear to be two popular schools of thought: that P2P increases sales, and that the music industry's hemorrhaging of cash is due to anything but piracy. Then, there are folks who recognize that P2P has replaced sales for a good chunk of the consumer base, and that it's spelling doom for the "sell recorded music" business model. But these theories tend to run counter to each other.
The survey most commonly cited by Slashdotters is the one from last year which concluded that people who've used P2P services own more (legally acquired) music. But this is correlation, not causation -- people who use P2P are more likely to be music fans, and music fans are more likely to own music; people who are not music fans don't buy CDs, and don't pirate music, either. This makes perfect sense. But far too many people interpreted the study as inferring that piracy leads to sales -- a bit of "confirmation bias," as the statisticians like to say.
"This is the Big One...The RIAA, and MPAA need to go after the big pirates...you know...the ones who are making hundreds of thousands of illegal copies of copyrighted movies and music, and selling them all over the world."
The RIAA, MPAA, BSA, and law enforcement do chase counterfeiters with vigor. They've even gotten various government agencies behind them -- performing police raids at flea markets on the local level, and doing the state department level saber rattling with China regarding their tendency to look the other way when CD pressing plants churn out counterfeit media in volume.
While I agree with your sentiment, I think we're in the minority. When news of these actions occasionally makes it to Slashdot, the bulk of the sympathy is clearly with the counterfeiters. A common sentiment is that the counterfeiters are just trying to make a living, and that they're largely not interfering with legitimate sales, as somebody who buys that $3 screener copy likely wouldn't have bought the real thing.
"It's actually very similar to ours, except the planets are all out of order and all the people there have, for some unknown reason, goatees."
At this point I'd point out they're malevolent via some sort of "goatee considered harmful" joke.
I'm guessing you haven't read the curriculum? There's a TON of stuff on fair use; one of the exercises is for the students to go out and do their own research on the subject. Also interesting was a section on EULAs and their implications; the exercise includes reading several real-life EULAs (including that of the Xbox Live! service) and understanding their consequences and the importance of reading them.
The biggest problem I saw with the curriculum is that the Q&As are vague or misleading (just as the question on the MyBytes site is misleading in its phrasing). Otherwise, it goes indepth into many of the vagaries of copyright law and it encourages discussion and outside research. It sure isn't perfect, but it's not the one-sided propaganda that you've characterized it to be.
"I wonder how much of this Microsoft sponsered curriculum with cover public licensing."
Take a look at that "MyBytes" site linked from the summary. The game offers distribution options which are analagous to public licensing and Creative Commons. So, right out of the gate they are dispelling the notion that "copyright" automatically means "for sale" or "can't be used for derivative works."
I agree with you that Creative Commons is an important development and that young people should be encouraged to use it. Looks like the folks at Microsoft who developed the curriculum agree with us, too.
The phrase "fair use" is found seven times in the first unit alone. I haven't yet read the other units, but if you're curious, you can check them out yourself. I suppose this is a "RTFU."
That the curriculum contains ample coverage of fair use shouldn't be surprising; it's an integral part of copyright law.
"The only people who go to jail for infringement are commercial bootleggers and I can't imagine that'd include anyone under the age of 18 AKA high school students."
Not correct from either a factual or practical standpoint. I grant you that this is what many people believe to be the case, but nonetheless, it's incorrect. This may be one of the reasons why Microsoft is launching the education campaign: to counter falsehoods like the one you've relayed.
At any rate, Kevin Gonzalez uploaded a work print of The Hulk to a P2P network. He did this not for money; perhaps he was part of the scene or he just did it because he thinks information should be free. He was sentenced to six months of home confinement. William Fitzgerald was a fellow who traded warez via IRC; his mistake was making them available on his web server. Again, not for money. Nonetheless, he got four months in prison and four months in home confinement. Then there was Operation Buccaneer, which targeted some of the warez rings (again: amateur warez traders, not bootleggers!) and handed out jail sentences of 18 to 46 months. That's almost four years for non-commercial warez trading.
The "you have to sell it for it to be criminal infringement" is one of those Slashdot memes that will never go away (your post is indeed already 4, informative when it's quite simply incorrect, while this correction will likely languish at 2 or lower). We'll continue to tell each other this, and we'll want it to be true. But the fact remains that Gonzalez and the rest did the jail time. Microsoft will actually be doing a disservice to teens if they don't explain the hard realities of copyright law.
"This is the same situation as any country .... including the USA - Do you think the RIAA gives money to non-US Companies, or just the ones it represents?"
The RIAA doesn't give money. They're a trade group.... they don't deal with the day-to-day accounting of divvying up the proceeds from record sales. And rather than pay money to the labels, it's the other way around: labels pay the RIAA for the priveledge of membership.
Record companies pay two forms of royalties:
Back to your question as it relates to people outside of your country: mechanicals are determined by the law of the country where the label is located. So, say the law in the US is nine cents per track (this is true), but the law in Elbonia dictates a minimum of $0.25 a track (this is made up). If an Elbonian national writes a song which is recorded by an artist who's signed to a US label, the Elbonian will only get nine cents per sale.
"That "media tax" *completely* justifies piracy."
Only in a "two wrongs make a right" sense. It's clear that the levy is not equitable. Many people (who would otherwise see some money from your purchase) get no benefit rom the levy... including "good guys" like non-Canadian performers (and I am referring to performers who just manage to scrape by, not just the "MTV Cribs" class). And, the money collected is a mere pittance compared to the money that's likely lost, even if we only include that small subset of pirates who do so to save money (vs. the "wouldn't have bought it anyway" crowd). What's dangerous about the levy is (as you've shown) it actually encourages piracy, by giving people the sense that the levy undoes the damage, when it quite simply falls far short.
"But if I were *forced* to pay them for all blank media, I would feel jolly free to copy as much as I want, whenever, for whatever purpose. They would infringe my rights, why can't I return the favor?"
Oh, please -- that's a cop-out. We do not have a God-given right to avoid taxes, levies, or tariffs. Everything we buy is taxed and re-taxed, and you Canadians have it particularly bad. Some of it is obvious, such as the stuff that's added when you buy (sales tax and the media levy). Some -- like your gasoline tax -- is built into the price, and keep in mind that on average, 1/3 of the price of gas in Canada is the tax. On top of that, there are taxes at the border. If a product is imported into the US from China and then shipped to Canada, there are two tariffs - and the retail price reflects it. Have you noticed that even though the Canada dollar is now stronger than the US dollar, you're still paying a premium in your retail price? That mouse or keyboard that's $49 in the US is still $59 or higher in Canada. In the past, the exchange rate justified it. But it's still there, and one reason it's still there is because your government collects a tax at the border for many electronic goods.
Now, imagine if everybody took the same stance as you that taxes, levies and tariffs violate their "rights." You would call bullshit right quick. Why try to pull the same shenanigans?
Acknowledge that you pirate to save money, or that you don't particularly care if an artist or anybody sees any money from the sale of their work. But a justification on your non-existent right not to be taxed isn't sound.
"The RIAA and MPAA are not welcome to a single cent of the tax we pay on blank media. It's a Canadian tax. It goes to the CRIA ( you know, the Canadian Recording Industry Association) (and presumably other Canadian organizations)."
Most of it goes to various societies and groups representing publishers, composers, performers (the CMRRA, NRCC, SOGEDAM, SODRAC, and SOCAN). Some goes to record companies, who may also be CRIA members. But none goes directly to the CRIA, nor is the CRIA involved in the distribution of the money to record companies or artists. It's a bit like saying that when you pay your doctor, it goes to the AMA -- perhaps it does in one sense, but that's not the most accurate way to put it.
For what it's worth, only Canadian artists and whatnot are eligible. While I'm guessing that the average Canadian pirate will have a higher percentage of Canadian music in their collection than the average pirate elsewhere in the world, my guess is that most of the music pirated in Canada is actually from elsewhere. If you're an American artist and your stuff is being enjoyed by Canadians who think that you're getting paid when they buy blank media, you're both wrong. Don't expect that check from the CPCC anytime soon!
This is why the Canadian levy is a terrible, terrible idea. It's nationalistic (as it kicks a little cash to Canadian artists each year), but it's hardly equitable. It's a tax on everybody who buys media -- whether they pirate or not -- and it gives many people the false belief that the artist is being compensated, thus legitimizing piracy. For Canadian artists, I don't believe the money makes up for lost sales, and as covered above, non-Canadians don't see any money.
"Since P2P filesharing is legal (though sharing particular files may not be), and there are no other alternatives with the same features, this seems to be nonsense."
The Ars Technica article was using a bit of condensation for readability. I think the context here is understood: use of P2P for trading unauthorized files. I believe the Ars audience understands that P2P applications can be used legally, that's not the application of choice for most college students.
I don't think the colleges are obliged to offer an alternative "with the same features" (ie. DRM-free MP3 files provided at no charge) as P2P. This may seem unfair, but we do not have a God-given right to our own free MP3 file of any song we desire. What I believe will happen is that the various legal services will step up with a subsidized service that offers streaming and/or DRM.
It may be an unpopular opinion around here, but free MP3s aren't exactly oxygen. The biggest rationale (besides the most honest one: saving money) is that P2P allows us to sample and learn about new music, some of which we might buy. But I've had incredibly good luck in finding lots of great music and broadening my music horizons using Pandora, last.fm, and iTunes' search and exploration features. Nutsie.com is my new toy of choice. Again, once we acknowledge that we don't have a God-given right to free MP3 files, we can find plenty of acceptable substitutes to enjoy all the music we want freely and legally. Anybody who claims that they need P2P to explore new music in a "try before you buy" mode either isn't being honest with themself, or simply hasn't done their home work.
"Maybe the Pirate Bay needs to find a way to include a whole bunch of other stuff in their indexes (witha checkbox to remove those results on queried results if the user would like) - then any similar laws wouldn't be able to affect them without affecting Google and every other search engine - and who's going to put an onerous burden on them?"
Such a tactic would depend on finding a court that didn't understand the difference between Google and a site set up for the purpose of promoting, facilitating and encouraging piracy. I know that we all like to joke about stupid judges and stupid prosecutors, but you need to take a pragmatic view here: if you can easily understand the difference, expect the court to understand, as well.
The original Napster tried the "we're just a search engine" defense. Grokster went the safe-harbor route as well. The courts didn't buy it in either case, yet this bit of history is apparently unknown to many Slashdotters. If TPB were operating in the US, it would be a legal slam dunk. It's safe to be cynical here and expect the laws of the EU nations to follow.
"I'm not saying it to pick a fight, but it stands to reason that Google's cache and archive.org can be modified easily enough by anyone with the right know-how (basically, you just modify the site that either one is caching). Will the IFPI demand their removal next?"
Probably not. Despite the braying of the "it's just lke Goooooooooogle!" idiots, intent and scope are likely big factors European-style law, just as they are in the US. This goes for crimes as well as torts -- in Europe, juast as in the US, your fate might be quite different if you accidentally run down a pedestrian in your car, vs. plotting to kill them with a handgun. The law tends to have these sorts of tests to avoid the slippery-sloping of the examples you've given.
"TPB, even if all it ever did was IP violation, contains zero evidence of any crime (IP and copyright violations are civil acts, not criminal ones - it only becomes criminal when you try to sell the copies)."
That's not the case in the USA, for what it's worth. All you have to do in the US is distribute more than $1,000 worth of work in three months -- no sales required. If TPB were being tried in the US, it would be for facilitating copyright infringement, or contributory infringement, or something similar. I don't know if the same test applies for civil vs. criminal in these cases. I believe it's moot, as it would be in the best interests of the rightsholders to keep filing lawsuits a la MGM v. Grokster.
And, of course, in Sweden it might be completely different.
"create bad precedents"
Huh? What precedent? Do you mean the Google slippery slope? Don't worry about this: the courts understand the difference between Google and a site set up to facilitate, promote and encourage piracy.
"perform collateral blockage (I think the legal term is "estoppel"?) against legitimate distributors who use/rely on that particular torrent tracker."
That's not what estoppel is generally understood as meaning. I think the closest concept that applies to the situation you're describing is "tortuous interference," but you wouldn't have a case. The ten-second solution is "just use another tracker" and if you can come up with that instantly, then so would the defendant.
"The argument made on Slashdot, and elsewhere, is that the music is the promotional material. No promotional material is ever 100% effective. If I'm at the grocery store, get a free sample and don't purchase the product I don't feel any obligation to pay for the sample I've received."
It can be promotional material. It can incite the customer to buy more music from the same artist, or do Ye Olde t-shirt and concert thing. But, any product can also be described in similar terms. Hyundai could give away cars as promotional items. But it's their choice.
I believe the GP's point is that MP3 files' primary benefit is as a promotion or advertisement -- and that's patently false; in fact, this argument is often used as a self-serving validation for copyright infringement. The great thing about the free market is that the copyright holder has a choice. Many record labels can and do release select tracks for free, and lots of unsigned artists release their entire catalogs for free under Creative Commons. But copyright gives the rightsholder the right not to.
Many Slashdotters believe that the key to success is to release your creative works freely, and relying on ways to make money other than selling your work piece by piece. Copyright law is opt-in: you don't have to sell your product, and you don't have to keep your stuff under copyright for the maximum duration. This is often a business decision; your personal goals and the free market work together to make their magic. Many Slashdotters would like these rights taken away from the producers, for the benefit of the consumers. This is all a bit too Randian for me.
"P2P is advertising and MP3s are free samples of a far better commodity."
I've purchased hundreds of MP3 and AAC tracks. Not once have I proceeded to purchase the CD version, nor have I gone to see the performer play live, or -- to use the Slashdot cliche -- "bought a t-shirt." The track was the product, not an ad. And the fact is that there are many, many consumers like me. If I could have legally gotten those MP3 files for free, then the copyright owner would have seen exactly zero money from me. Let's not pretend that MP3 files hold no value... while I acknowledge that many people reading this use P2P as their primary source for music, Apple and others have done quite well in the business of selling downloads.
"I hold hundreds of copyrights, two having ISBN numbers. The two registered ones would have gone into the public domain already if I'd had my way, as they are both over 20 years old."
Possibly a dumb question... if you hold the copyright, don't you have your way? Does obtaining an ISBN hamper your ability to release something into the public domain?
I'm thinking of what Cory Doctrow has done with some of his stuff... he didn't see the need for it to be under copyright any longer, so he set it free. His stuff, too, has ISBNs, so I don't understand what the difference is here.
"much of that paper loss is to small companies hired at exorbinant rates that are owned by execs in the larger companies."
Can you give an example?
"The gov't gets about a third. And the industry takes what's left (still probably over 60%). Why, exactly, does the industry feel it deserves (in my rough estimate) 15x the profit the artist gets when all they do, aside from take your money, is point you to a download?"
I'm pretty sure that the record company doesn't keep the rest of the money. In addition to the 4% going to the songwriter, as you mentioned, they also owe money to the performer (who often gets a lot more in royalties than the songwriters), as well as to lots of people who worked on producing the music.
In fact, record companies have been notoriously bad at holding on to the rest of the money lately -- many of them are even losing money, which means that they are spending more to produce the music than they are earning back from sales. Forget saving it in a bank account somewhere... they don't even have anything left after paying for payroll and overhead. The record industry is hurting badly, which is one reason why I believe they are resorting to desperate measures like trying to get the mechanical royalties lowered.
"I heard it was too complicated to do it that way. Maybe with modern computers it may be easier. It used to be that radio-stations etc. would simply[1] keep a list of each song they played and periodically handed that list over to the RIAA, who applied a set even percentage and collected corresponding fees to be distributed. It worked well for several decades. In fact, I think that patents should follow a similar technique so that you don't get slammed with surprise royalties."
Huh? The RIAA doesn't deal with terrestrial radio... that's ASCAP and BMI, who represent artists. That's the beauty of terrestrial radio royalties... it goes directly to the artists. The record companies don't see any of it.
This is exactly why the RIAA wanted to get its paws on the royalties from streaming radio. They've missed 90 years of radio royalties; thus, they successfully got the rules changed. Thus was formed SoundExchange. The artists still get much (or most) of the money, but now the record companies line up for their share, too.
"Why is the RIAA even able to set any sort of financial policy for its parent companies? I thought it was just a big bunch of lawyers! Should not each recording studio set compensation based on the contracts it signs with the artists?"
Remember -- mechanical royalties are set by law. This isn't a contract issue. You're thinking of the royalties paid to the performers on the recording -- those are contractual.
Since the songwriting royalties are set by law, it's in the best interest of the record industry to use their trade group to fight to get the law changed. And, that's what the RIAA is -- a trade group. They're much like the AMA is to doctors... it's the AMA which you see lobbying congress, not individual MDs.
"Is the songwriter the only artist who is compensated for the download? Is the performing artist or band also compensated, and if so by how much? As much as I don't like the RIAA, I also want to understand the surrounding context. I guess the real question this begs is exactly where does all the money go?"
The composer, lyricist and performer each get royalties. The royalties for composers and lyricists are set by law (hence the news whenever the record labels want to change it), while the performer's royalties are contractual. I believe the law allows for lowering royalties for the composer/lyricist if they're also the performer. The royalties for the composer and lyricist typically don't go directly to the composer and lyricist, but to a publishing company, which keeps a cut in exchange for tracking payments. Often the publishing company is a one-person company set up by the composer or lyricist. In a few cases, the publishing company is actually owned by a record company.
This page is a bit out-dated, but it covers the basics of how royalties are paid for CD sales. Downloads, as we've seen, are a bit different.
What it boils down to is that the royalties are often the biggest slice of the pie. The rest of the money goes toward paying the salaries of various other people at the record company. The popular perception that the record company gets the rest (in the sense of hoarding it some Gringotts-style bank) isn't true too much nowadays with the prevailing health of the industry -- Warner Brothers lost money last year, so they're spending money faster than they're making it.