Tag: copyright law
In many ways, arguments for thick copyright are just more of the same polemic side-choosing that we see in most public politics. We’ve become convinced that doubt or criticism of any current policy is the sine qua non for two-party schisms, and that any uncertainty or two-sidedness is the mark of a hopeless, temporizing waffler. That any insecurity need be squashed, and that our policies should bear no scrutiny unless paraded as political spectacle.
Such it is with a recent speech for the American Association of Publishers given by US Register of Copyrights Maria Pallante. She seems determined to express her position with polemics, as if doubt, consideration, and scrutiny would be akin to a show of weakness. This is endemic of our 24/7 news culture, however, where one is free to assert a stalwart and contentious stance on an issue that – mere years later – turns out to be completely misconceived and erroneous.
Take the battle against the VRC, the mix-tape, and cable television as fine examples of this. Bought-and-paid-for politicians echoed industry lobbyists in asserting the evil of these devices, only to forget their complete lack of prospection when such technology produced more media, not less; more money, not poverty.
She begins with the popular mantra: “It goes without saying that where there is publishing, there is copyright,” which would come as a great surprise to Nigerians, who make 1,200 films a year (the US makes about 600) without any existing copyright to protect the content. Implying that publishing cannot exist without copyright (particular in its current, unprecedented form) is wholly bogus, and implies that the argument for whether copyright is needed at all is completely off the table (which it certainly is not).
She also says that rights-holders have “long served the public interests,” but this has to be a joke. Any “service” rights-holder have performed is – at best – an adventitious outcome to serving their own best interests. Let’s be clear: rights-holders do not care about common interests, about public benefit, or even about art. They care only for return on their investment. This is not – in and of itself – wrong or egregious, and certainly isn’t evil. It is, however, NOT to be confused with benevolence, concern, or public service.
Pallente also makes a rather circular argument regarding copyright “respect” by citizens, suggesting that if copyright in its current form is not adhered to, then congress will have no choice but to make the laws stricter. This one-way-valve approach is for more “dangerous” (a word she uses for a lack of respect for current copyright) than actually thinking critically about WHY people might not abide by current copyright laws.
This suggests that the only path toward compliance is to tighten the belt, restrict more content, enforce more laws, enact greater controls. This wholly ignores the possibility that applying heavy-handed, thick copyright to modern media is counter-productive to all but a select few (those already owning massive amounts of content) and highly detrimental to anyone creating content hereon or to those consuming it.
I understand that context indeed matters. She is speaking to a group of old white guys who own a lot of content, so of course she’s going to kiss their asses and suggest that they are nothing short of demi-gods of information and pillars of our age. She needs their support. But to suggest that copyleft agenda are laughable and “dangerous” ignores the slew of well-educated, forward-thinking, powerful minds showing daily that what she believes to be a bulletproof truth contains myriad flaws. Just as similar arguments from our past we now know and believe are ridiculous, such as copying sheet music bringing about the end of music creation.
So once again we come to a rather frustrating impasse: where corporate-funded politicians and state-appointed potentates such as Pallente have only one rabbit in their hats – absolute compliance. No criticism. No introspection. No wiggle room. But so long as the same economic cycle continues, the same policies will resurface. SOPA will be back. Three or six or however many strikes will again have its turn. The very ideals necessary for real change in the way we handle IP in the US will simply not come from our government, not so long as they remain perpetually beholden to corporate interests.
Oh, and what does this have to do with art and culture? Nothing. Why do you ask?
While the Stop Online Piracy Act (SOPA) and its evil twin PIPA have been defeated for now (thanks very largely to consumer efforts to show vehement disapproval to elected officials that will otherwise just vote with the money), it seems now Internet Service Providers (ISPs) have become ready bedfellows of entertainment trade organizations. What could this mean?
In sum, it would mean ISPs using code – which I’ve stated before has ZERO accountability or judgment – to flag customers using their Internet connection in any violation of copyright. This could mean downloading, uploading, posting copyrighted content to YouTube, Facebook, Pinterest, etc. It could mean a lot of things, since copyright violation has developed a broad enough set of actions in its definition to include everyday activities such as forwarding a funny email, reposting a cute pic, or even singing out loud.
The agreed-upon model will allow for six violations before termination of the customer’s account, but in the mean time, it could mean putting bandwidth restrictions on them, or re-directing their homepage. If this sounds EXACTLY like what spyware does, you’re getting the picture.
There are two things to take away from this. First, punishment at the customer level has led to nothing but EPIC failure. Look at the music industry suing fans. They lost tons of cred, causing even more people to file-share, and they LOST MONEY on the suits, despite getting the occasional hefty settlement. (Lawyers don’t come cheap, mon ami). And punishing this was might scare off the johnny-come-lately violator who will then be more cautious when posting to Facebook or refrain from putting anything on YouTube (way to squash little Billy’s dream of becoming a filmmaker), but it will do NOTHING to even hamper the majority of file-sharing. There are simply too many channels for allowing file-sharing to continue.
You punish me for using Frostwire, I’ll move to BitTorrent. You shakedown my speed for upping torrents, and I’ll just move to newsgroups or Direct Download (DDL). Take away my connection altogether, and I’ll just hop onto public wifi to get my media. The point is, this simply will not work. All it will do is wash out any consumer spending that might come from not file-sharing based on the cost of enforcement and lobbying. Of course, no RIAA or MPAA lobbyist is going there. They have to keep pretending that their presence is the last bastion between lawful consumption and absolutely free media. Rights-holders, alas, keep employing these tools perhaps more out of habit than good business sense.
Secondly, the ISPs are not bound by law to enforce this graduated response. Thus, some will enforce it, and some will not. That will mean that the moment one ISP is tightening the belt too much, customers will drop them like a hot potato and go with an ISP that doesn’t kowtow to trade organizations’ ever wish. Sure, the more loosely-enforcing ISPs will become the target of more rights-holder and trade organization pressure, but so long as they have a slew of loyal customers to whom they show loyalty in turn, it’s business as usual.
My advice: find out if your ISP is planning on implementing a graduated response, and tell them you think it’s a bad idea. And let’s be clear: there is NO WAY that this benefits the consumer. This is completely and wholly bad for you. So putting some pressure on your ISP is not only apropos, but could have a real positive effect on whether they pull a stunt like graduated response.
When porn flick producers Third Degree Films attempted to file infringement suits using no-doubt sleazy lawyers who aren’t even allowed to practice law in the states in which they’re filing, it reveals two troubling trends.
First, that people are still really ashamed of their porn proclivities, which speaks volumes about our confused culture’s inability to shake our puritanical roots. Sure, the Internet provides a semi-private platform for porn in lieu of erstwhile public platforms such as the XXX section of your local video store, or a XXX store that you wouldn’t want to be seen entering. And smarmy Third Degree Films count on pay-up-or-else lawsuits to glean five-figure settlements simply because porn pirates are too ashamed to have to fight the infringement in court.
Granted, I’m not a teacher or a preacher, and if I were, I suppose the fear of public exposure of my porn preferences would loom a terrible fate. However, this illustrates our perpetual ignorance of law in general and copyright law in particular. In that, despite what the idiot box tells you, the VAST majority of legal proceedings take place OUTSIDE the courtroom. That includes, say, filing an infringement suit, you filing for dismissal – back and forth and back and forth. This doesn’t even have to be costly, it just requires a modicum of elbow grease (in the form of legal research) on behalf of the accused.
Because the majority of infringement cases bank on collective ignorance of copyright law, and are therefore very, very flimsy. Case in point: the suits filed by Third Degree Films, which won’t get anywhere while they themselves can’t even follow due process.
Consider other cases, such as with vampiric pay-up-or-else cesspool ACS: Law, where they don’t even take the time to file suit against people, but IP addresses. And without the concern even to check to see if they are able to file suits in that state. Not that’s lazy! And thus, that’s flimsy and combatable.
Second, people are convinced that the beginning of law (the lawsuit) equals the end (judgment). There are a ridiculous number of steps in-between, and these steps are as costly for the rights-holders as they are for the defendants. More so. So when a rights-holder demands a five or even four-figure settlement, they’re not doing it to be lenient (since the max fine per infraction is $150,000). They’re doing it to avoid the expense and legality of using the court system. Suits are thrown out all the time because firms fail to follow legal protocol (as complicated as tax code, to be sure). But when citizens are threatened with anything written by *gasp* a LAWYER, they think they’d better pay up or their lives will be ruined.
Indeed, there are some horrid judgments out there: Thomas-Rasset and Tenenbaum to name a couple. But these are not only outliers, they are judgments that were subsequently reduced greatly. You just don’t read that in the news. You hear only about the huge sums they’ll have to pay, and then the journalists are on the next story to sensationalize.
So just as aforementioned slime balls Third Degree Films will have to check their pay-up scheme, people need to know that the only reason they work to begin with is that we have remained willfully ignorant of copyright law and the legal process. In the time it takes to watch a season of “Two and a Half Men”, you could learn droves about defending yourself against rights-holders’ predatory practices. If more people made copyright suits run the full legal gamut, such suits would likely wither and die.
The main difference is in the network of people involved. You’re unlikely to find as many people with as many files in your DropBox circle than in any service akin to Megaupload. But then consider how digital information spreads. You only really need one person capable of obtaining one copy of any media, and it will effectively spread to all people sharing his DropBox folder. For someone sharing pics of newborn little Billy, how quickly sharing a DB folder can occur is no mystery.
Sure, there are size constraints, but unlike with tanks, for intellectual property, size does not always matter. Consider the worth of tiny plug-in Izotope Nectar to a sound engineer. Such a file would take only minutes to share on DropBox, and would fill only a fraction of the 2Gb free account.
So when a service such as Megupload is taken down, and with such dramatic and perfervid flare by rights-holders and their cadre of lawyers, it’s not that file-sharing stops or even decreases. Rather, it’s simply more likely that it moves further into the shadows. Perhaps fewer people will be tempted to try pay-to-play file-sharing services or even bit torrent, but they would grow more inclined to ask files of their friend who IS intrepid enough to download warez regardless of industry threats. And DropBox and its ilk provides a safe and semi-private rendezvous for such sharing.
This is certainly not to indict DropBox; it’s quite clear that they provide a service that – just like cars or booze or handguns – CAN be used to violate the law, but violation is indeed not it’s primary purpose. (And – frankly – one cannot argue that the “harm” caused by swapping files using such services compares with the potential harm of drunk driving or poor gun safety, either).
This is more to express what anyone immersed in copyright culture understands – even the rights-holders: that sharing is as native to the digital age as texting or email. No matter how much gloom and doom lines the occasional “victory” claimed by the copyright rich.
My final rant on the troubling nature of the words used in the Stop Online Piracy Act (SOPA) also involves the line: “Dedicated to the theft of US property” in reference to which sites rights-holders would have the authority to see shut down. The final bit – “US Property” – is probably the most egregious misnomer in the lot. We’re talking about intellectual property (IP) that enjoys the protection of US copyright law. That’s it. It is not “US property”; it is – as rights-holders are so fond of saying – private property.
Claiming that the IP of individual rights-holders is US property is like saying that my car or my house is US property. Both are protected under US law: if someone steals my car or burns down my home, police will work to find out who did it, and I might even find some restitution. But that certainly does not make it US property.
This verbiage is clearly the sort of blanket statement that makes copyright law appear irrefutable, and any violation seem like an attack on America itself. Of course, in reality, when someone overseas buys a bootleg copy of a film instead of a legitimate version (and oftentimes legit versions aren’t even available), this is no sooner theft of US property than it is personal property. The connection is simply too flimsy to be made. It’s not as if crates stamped US pour into China filled with DVDs stolen directly from the state department. We’re talking about bits of data that US citizens created, and not under some state mandate or even FOR the state, but rather as a creative endeavor to make money. And they do.
Think about the absurdity of calling personal intellectual property US property. How about if an American overseas writes something down during a visit to Amsterdam? It’s HIS intellectual property, and was the moment it was fixed to a tangible medium of expression. He enjoys the same rights that George Lucas or Quintin Tarentino enjoy, since the protection isn’t based on “artistic merit”. If he leaves that writing in Amsterdam and returns home, is Amsterdam then in potentially illegal possession of US property? What pains should they have to endure to return that property unharmed and uncorrupted?
I hope these last few posts have made at least a few people think about the silliness of SOPA, it’s potential harm, and the reasons we need to remain diligent in our fight against it.
Even I’m tiring of hearing about the Stop Online Piracy Act (SOPA), though it is supremely important to shoot down. However, I think it’s important for people to take a look at and consider just the first line of the actual verbiage.
It gives rights-holders the ability to “request” the take-down of sites: “Dedicated to the theft of US property”.
There is so much wrong about that single line that it singularly makes it clear to me that no one willing to give this the go-ahead has any real understanding of copyright. So I’ve decided to break this down a bit for my readers in a series of three blogs over the next few days.
First, for a site to be “dedicated to” anything implies that it’s primary and perhaps sole purpose is that object. The Google search engine could be understand as “dedicated” to searching the Web. eBay is “dedicated” to conducting online auctions. Sure, both do much more, but I would agree that those sites are indeed “dedicated” to the aforementioned deeds.
So what? Well, according to SOPA (and Khan’s Academy explains this beautifully), a site needn’t be dedicated to “the theft of US property” to be taken down. Right in the verbiage of the proposed act is the indication that this would extend to any sites that “enables or facilities” such pirate sites. So a link to a site “dedicated” to selling hot copies of Rosetta Stone and other apps is de facto guilty as well, despite the linking site not being “dedicated” to copyright violation. It only takes a moment’s consideration to see how far this would extend beyond sites whats sole purpose is to profit from piracy.
Think this is splitting hairs too much? Alas, that’s what’s necessary when dealing with blanket legislation, such as the Digital Millennium Copyright Act (DMCA). This was so heavy-handed that it effectively destroyed fair use for bypassing Technical Protection Measures (TPMs). A later amendment allowed for bypassing such measures so long as copyright violation was not the software’s primary purpose; (ie – just so the software was not “dedicated” to piracy). Wonder why we can now use apps to backup our DVDs – thank this amendment (and those who fought for it).
Rick Falkvinge writes an excellent and poignant column for Torrent Freak on what role corporate copyright should have as stakeholders in copyright culture (spoiler: not much). While wholly worth the read, the gist is that just because big media benefits from the current copyright culture doesn’t mean they have the right to control where it goes.
Falkvinge also writes: “The copyright monopoly legislation is a balance between the public’s interest of having access to culture, and the same public’s interest of having new culture created.”
Consider this taken a step further. Copyright should incentivize creation, granted, but most people believe that the only way to do this is to afford the creator (or – as is much more often the case – the rightsholder) a state-enforced monopoly, ie – a greater chance of making money, or to prevent others from making money. But what we’re seeing now is creative efforts that have nothing to do with money, where there is not other incentive but sharing what’s created, and the intrinsic motives of achieving that creation.
So where does that leave our current copyright culture? What happens when money is no longer the motivating factor, but when content creators are able to produce high quality, popular media with no budget and nothing to drive them but their own self-motivation? Shouldn’t copyright laws be re-evaluated to consider what it is that really motivates creators? Otherwise – and in this case, otherwise means our current reality – we have to admit that copyright is not a tool of incentivizing future creation, but rather one of ensuring profits for a small minority of rightsholders.
Alas, I don’t believe this real purpose differs much from what most citizens would consider copyright’s purpose. In other words, since copyright’s inception it has moved clearly to longer and broader terms and protecting rightsholders, whether they create or not, and most people would accept this as the legitimate and self-evident purpose of copyright law, despite beginnings that are far more well-intended.
Ask people why you can’t copy a Disney movie, and they’re far more prone to answer “because they’ll punish you” rather than “because Disney needs an incentive to create more movies”. Blending this with Falkvinge’s argument, I agree that big media should have little to say about where copyright goes, but when most people already believe that copyright is in place to protect corporate rightsholders, big media already has several seats at the table.
So it seems that lawyers aren’t the only ones using copyright to extort money. Now, scammers have figured out a telling and disturbing fact: that when faced with the law, most people cower and willingly surrender money to avoid what they believe are far worse consequences.
Scammers have been sending out letters to people claiming to represent trade organizations such as the RIAA and the MPAA and demanding a settlement to avoid a lawsuit. Most people remember the multi-million dollar outlier cases of copyright infringement, such as with Tenenbaum and Thomas-Rasset. And most people – whether they’ve pirated content or not – know so little about copyright law as to submit without question whatever sum is demanded. They assume their own guilt.
This reveals two important things. First, it echoes what I have long noted and what has been shown time and again: that we are all copyright criminals when the letter of the law is applied. Hence why so many were willing to fork over hard-earned cash ($283,000 worth) to completely unknown, unseen, unverified entities just to avoid any assumed entanglement with the law.
At this point, the law is simply not working for people. It’s not working for content creators. It’s not even working for rightsholders, really. It’s only working for lawyers and other people willing to leverage the cryptic web that copyright law has become. Here lawyers are clearly conflated with scammers, and while they are certainly not the same, they perform the same action when the “crime” in question is systemic.
That means that when someone can safely assume that a high enough percentage of citizens will do nothing to fight an indictment, but simply assume that they have done something to warrant paying a hefty (albeit affordable) fine, then there’s something wrong with the law. At that point, breaking the law is so systemic that it simply is society and culture. Copyright infringement is so woven into so many citizen’s lives that any attempt to extract it via more laws, more enforcement, more litigation will only frustrate and confuse people while feeding a few law firms and trade organizations.
Oh, and attract con artists. Can’t forget that one.
Techdirt asks the other important question here: what can we expect people informed of this scam to do with real pay-up-or-else letters? God knows I’ve received letters in the mail telling me that I owed $50 to some company or bank I’ve never heard of, and that – after fees and interests – the debt is now thousands of dollars. That this collection company is willing to settle for just a few hundred dollars. This is clearly a scam, but such scams meet loads of success when we are a nation in debt to our gills. It seems logical. It seems believable. I’m sure I did forgot to pay somebody along the way. I’d better pay up or they’ll take my house or car or kids.
This is precisely how over-litigation and preemptive extortion for copyright infringement is now operating. We’ve all copied a CD for a friend. Watched a show on some shady streaming site, uploaded photos without permission, or maybe even downloaded a few tunes or a movie. That it’s assumed that we’ve all committed copyright infringement becomes self-evident when such scams work. And it’s not the dyed-in-the-wool pirate affected here. They know better than to simply kowtow to an empty threat written in ambiguous legalese. No, it’s the average citizen, with little knowledge of piracy or copyright law. The same type of person who would fall for a debt-collection scam instead of someone who’s actually skipped out on debt.
The fact is, when our methods of “law enforcement” bear no logistical difference from a scam, what is the difference?
Perpetual lawsuits against copyright infringers claiming that “thieves and pirates” are destroying the industry while still witnessing thriving creation from user-generated media to blockbuster movies, speaks clearly that copyright law in its current form operates more to allow litigation than to incentivize creation (the intention outlined in the Constitution).
But despite clear logistical reasons that newspapers are dying (shotgun advertising, analog distribution, Internet news) there is still the claim that piracy is the culprit.
Enter Righthaven, LLC, a firm of lawyers and investigators whose job is to sue copyright criminals for the unauthorized use of news media. This is media that bears no visual copyright notice (which isn’t required) and is not registered with the copyright office (also not required). But if a copyright owner detects unlawful use of his material within six months of the violation, he may register with the copyright office, and then file suit against the infringer. Having an officially registered copyright bears a number of differences, namely the ability to sue for statutory damages and – wait for it – lawyer fees.
You may see where this is going. A team of lawyers trolls the Internet for violators – hardened criminals such as small-time bloggers, volunteer trauma workers, and small businesses- who are using media for which their clients own the copyright. They then buy the rights from the copyright holder. Do they then send a takedown notice? Offer a warning? Demand a fee? No, no, no.
Instead, they file for official copyright, and then sue the infringers for thousands of dollars.
So, let’s be clear: the copyright holder – in this case a collection of newspapers and media organizations – don’t want to stop people from using their media, neither does Righthaven. They want people to be sued for violating what is widely regarded as an ambiguous and arcane set of laws. Righthaven wouldn’t exist in its current form if they simply asked people to either remove the media or pay a fee, because the vast majority of the infringers would gladly acquiesce. No, they want to use this little-known facet of our copyright laws to extort money from individuals and small businesses.
This has nothing at all to do with incentivizing the writers of their client newspapers. It has nothing to do with ensuring that such violation will not happen again. There is no regard for fair use, mistakes, or leeway for fellow man (an easy disregard given that a lawyer’s stake to mankind is suspect anyway).
Thankfully, Righthaven lost a case against blogger Bob Nelson, and recently backed down in a case against Web site, The Democratic Underground. The issue in dealing with legal thugs like Righthaven, however, is that one must incur legal fees – sometimes substantial – to prove one’s case. Alas, he who represents himself has a fool for a client. But hark, DU might have grounds to file a countersuit for legal fees. The true irony comes with Righthaven’s legalese, which was written to dissuade the judge from considering DU a candidate for legal fees.
“Simply stated, the imposition of attorneys’ fees under these circumstances would represent a substantial deviation from the underlying purpose of the Copyright Act.”
If that’s not the pot calling the kettle black. Here’s a firm whats sole purpose is to troll for potential lawsuits that will end with substantial legal fees that defendants will have to pay, and they claim ethical high-ground in regards to the “purpose of the Copyright Act”? The purpose of the Copyright Act was not to take money from people making fair use of media and put it into the pockets of slimeball lawyers, that’s for sure.
In response to this tom-trollery, one blogger created a list of sites for all Righthaven’s clients, which users can easily ad to their Firefox browser blacklist plug-in, so that they never visit the site of a company who would stoop so low as to employ Righthaven and their ilk. You can bet I will not log a single page view on any site hiring Righthaven, LLC, though I doubt seriously they will feel the sting. Alas, despite thousands of lawsuits siphoning money from the grass roots of user-generated media, it still has yet to reach a tipping point where the average person cares enough or gets angry enough to affect this sad state of affairs.
But I have faith that such schemes cannot endure for long. Then the lawyers of Righthaven will have to move on to another set of hosts to feed from, such as homeowners, mom and pop shops, or independent physicians.
While coming as no shock whatsoever, it seems Limewire is already back up after a court ruled that the p2p platform could no longer legally operate their file-sharing network due to complaints of copyright infringement by everyone’s favorite pal, the Recording Industry Association of America (RIAA).
And yet, already – not a month hence – the Limewire network is back in action. Sure, with so many users gone, the material is largely limited. Limewire – unlike Napster – does not operate off a central server, but relies on “nodes” in the form of users’ shared folders.
For good of ill, the network will no-doubt gain steam once more, and likely house the same media it did a month ago. While Limewire, LLC is certainly a for-profit organization, they couldn’t exist if there weren’t users sharing data. So there inevitable resurrection is certainly a reflection more of people’s desire to share information, to have ready-access to media on their terms, than it is either that Limewire is a menace who refuses to obey the law or are somehow responsible for file-sharing that would otherwise not exist.
Whatever the name, and no matter how many companies the RIAA and MPAA see shut down, and no matter what laws pass in Congress to blacklist sites, to punish ISPs, universities, or individuals, it is far too late to expect file-sharing to be stuffed back into the bottle. Limewire is a symptom of consumers’ desire to share files, so even while so many people publicly decry all facets of piracy, their private lives speak differently.