Slow news week, right?

Other than a Supreme Court decision, one of the largest criminal copyright infringement indictments in history, and an internet protest against SOPA that resulted in nearly 1.5% of the US population contacting their representatives.

Inevitably a lot of links today will deal with issues surrounding SOPA and the PROTECT IP Act. One of the more interesting developments I’ve noted is the reaction to the overreach and hyperbole of the “internet blackout.” Many who didn’t necessarily support the specific language of the bills raised concerns over the tactics involved and even expressed some sympathy for supporters of the bills — probably not an intended consequence of those behind the protest.

For example: Evan Brown, a whip-smart lawyer who blogs at Internet Cases, writes If you critique SOPA, read the text. If you read the text, read it right, noting the “misguided” arguments made by the Khan Academy in a video against SOPA. U of Chicago philosopher Brian Leiter says of the blackout that the “knee-jerk opposition of cyber-libertarians, who readily turn a blind eye to all the ugliness of cyber-space, is itself suspect in my view.” Bloggers at the well-respected IPKat blog offered sobering analysis here and here. Finally, NY Times technology columnist David Pogue cautions that “the scare language used by some of the Web sites was just as flawed as the Congressional language that they opposed.”

If The Tech Industry Had Its Way, Hollywood Would Be Zynga — TechCrunch’s Alexia Tsotsis casts a critical eye at venture capitalist Paul Graham’s latest statement: Kill Hollywood. Graham had previously called SOPA supporters like Hollywood “un-American” and promised to not work with anyone on the list of supporters.

An Elegy for the Piracy Wars (On the Occasion of the SOPA/PIPA Blackouts) — An epic rant by author Chris Ruen. At 4000+ words, few perhaps will agree with all his sentiments, but there’s certainly much food for thought.

The False Ideals of the Web — Jaron Lanier’s book You Are Not a Gadget is recommended reading for anyone interested in digital issues. In this NY Times editorial, Lanier reitirates his skepticism of a worldview where “the Internet is a never-ending battle of good guys who love freedom against bad guys like old-fashioned Hollywood media moguls.”

Starving the Artist is FREE Forever. Download the Free E-Book — Author William Aicher has made his book Starving the Artist: How the Internet Culture of “Free” Threatens to Exterminate the Creative Class and What Can Be Done to Save It’ available as a free download. I just started reading it this weekend, good stuff so far.

Explainer: How can the US seize a “Hong Kong site” like Megaupload? — Nate Anderson at Ars Technica has a good overview of the jurisdictional issues implicated in Thursday’s arrest of Megaupload executives.

165 French File-Sharers Now On 3rd Strike, “iTunes Up 22.5%” — Less than 2 years after France began its graduated response approach to piracy, reports show encouraging statistics. Those receiving second warnings represent less than 10% of those receiving first warnings.

30 Comments

  1. I am loathe to criticize colleagues who may hold opinons on legislation based upon their good faith interpretations of what they believe proposed legislation subsumes within its scope. Hence, I will not call them out by name, choosing instead to attempt rebutting/explaining where I believe they have gone wrong. Sadly, instead of engaging in intellectually honest debate, the almost universal reaction was simply to ignore the invitation extended to them and continue promoting their opinion to the uninitiated as is if was 100% accurate.

    • This attitude shows a great feel for the market, since people quite apparently want to be told the two bills spell nothing but doom, gloom and a degeneration into the darkest of police states. I know from too many pointless arguments over the last few days that a portion of the opponents opposes the bills based on either self-interest (fear of losing access to unlimited free content) or simply an ideological hatred of copyright. I also know that some people, not knowing what to think, given the mixed signals they’re getting, oppose the proposed legislation on the basis of playing it safe – a Pascal’s wager if you will.

      The attitude I find most disappointing, however, is the feeling – especially now that work on the bills has been postponed – that the protests brought people together for a great cause and that by standing together they achieved a victory over the forces of darkness. Their achievement? Maintaining a situation where creators continue to be robbed of the fruits of their labour by unscrupulous businesses.

      A metaphor from the time of the London lootings comes to mind. I’ll paraphrase it here: the people of the Arab countries fought for freedom; the people of the West are now fighting for free music and movies.

      It’s enough to make you weep into your beer.

      • If people are fighting for freedom of choice, then why is it that they were left out of the discussion until the very end? Why did the music and movie industries have so much secrecy in place when the public asked for SOMETHING in regards to a discussion on the bill?

        And if those industries are robbed of their labor, then why is it that the artists and creators have been doing quite well in spite of copyright laws not because of them?

        • 1. Most musicians affected by piracy are not doing “rather well”. Most have no health insurance and have to leave their families and go on the road to make ends meet. In no way is that a positive thing for art, our culture and our society.

          2. There is no justification for Kim Dotcom and others profiting off something that creators get zero for. There is no justification in these cases for taking something without permission. Your view of how society should function is pathologically warped.

          • Most musicians affected by piracy are not doing “rather well”. Most have no health insurance and have to leave their families and go on the road to make ends meet. In no way is that a positive thing for art, our culture and our society.

            Confirmed fact. There are more musicians and artists now than there were in 1998. The artists have been making more money through utilizing Spotify, Youtube, and a number of digital technologies, not copyright enforcement. The plea for moral support seems a little dubious since most Americans in general have no health insurance.

            There is no justification for Kim Dotcom and others profiting off something that creators get zero for. There is no justification in these cases for taking something without permission. Your view of how society should function is pathologically warped.

            He made a SERVICE vetted by the artists you seem to imply aren’t making ends meet. They leaked their own material on the site. They had the premium accounts. They were making money through Megaupload. And now you want to take that away because he made a service that artists liked?

            Your notion of who “profited from piracy” needs a reality check.

          • Voice of Reason

            Confirmed fact. There are more musicians and artists now than there were in 1998.

            And your point would be? There are also more people in the world than there were in 1998. Based purely on random statistics, a portion of those people would follow a path to music. That doesn’t substantiate your claim, which is based on zero cited evidence, that “artists and creators have been doing quite well in spite of copyright laws not because of them”.

            The artists have been making more money through utilizing Spotify, Youtube, and a number of digital technologies, not copyright enforcement.

            And you back up this claim, how exactly? Did you survey every artist in the country?

            He made a SERVICE vetted by the artists you seem to imply aren’t making ends meet.

            Really? So those 39 movies that were on the servers for more than a year after being served with DMCA notices, those were put on there by the artists? What amount the pre-release movies and works that were allegedly uploaded by the staff themselves? Which artists authorized that?

            They leaked their own material on the site.

            Is your claim that every piece of alleged infringing media on Megaupload was leaked on there by the rights holders?

            Your notion of who “profited from piracy” needs a reality check.

            The property seized in the indictment provides all the information one needs to come to a conclusion as to who profited from piracy.

          • No, not really random since the industry hasn’t died, there’s been more money in the entertainment industry with those “pirate sites” and people have a choice in how they spend money since the tech sector continues to make strides in giving independent artists more opportunities to make money. Funny how people continue to deny the reality that says more artists have more choices in how to pursue their career. If they’re really costing so much money, then why can more and more people use these sites to make their own living?

            And you back up this claim, how exactly? Did you survey every artist in the country?

            This was done with the US survey, the UK Hargreaves Report, the Dutch government’s report regarding copyright, the Swedish report… I like to study. And Spotify continues to make the major labels money. Or have you never heard of a service you don’t use?

            Really? So those 39 movies that were on the servers for more than a year after being served with DMCA notices, those were put on there by the artists? What amount the pre-release movies and works that were allegedly uploaded by the staff themselves? Which artists authorized that?

            Wow… 39 movies harmed the economy through dubious numbers… Aren’t those the exact same dubious numbers that the IFPI as well as the MPAA flouts but NO ONE can find any credibility to them? When you compare the number of legal uses for Megaupload to what was deemed illegal by ICE’s “research” (it’s confirmed that their track record with piracy is horrid), you find that the pros of a cyberlocker far outweigh the negatives of piracy. Tell me, when the world finally understands that copyright and civil rights are at a crossroads, who will win? With further and further encroachment from those that use copyright laws to censor, it will only be a matter of time before more people speak out against the powers of the state to maintain monopolistic pricing.

            The property seized in the indictment provides all the information one needs to come to a conclusion as to who profited from piracy.

            Piracy: The flawed notion of control of a “product”, meant to maintain a monopolistic price. Further, no evidence needed of someone running a successful business that artists wanted to break free of bad contracts. I’ve seen a number of people stating how the copyright laws are bad. I haven’t seen too many people (other than those who work in the industry) say that Megaupload was bad.

          • I’m not sure why you’re approvingly citing Spotify, who have made licensing deals with the groups whose content they use, and who had to do some fancy maneuvering to keep from being sued into oblivion. If anything Spotify is an example *supporting* the existing rights regime, because it shows that an on-demand streaming service with a wide library *is* possible.

          • Tell me, when the world finally understands that copyright and civil rights are at a crossroads, who will win?

            Well, given that copyright is a civil right, I would hope those that support civil rights. But the attraction of the idea of reducing an entire class of people to slavery so others can enjoy the fruits of their skill and labour for free may just be too tempting.

            Wouldn’t be the first time that’s happened in history.

          • I’m not sure why you’re approvingly citing Spotify, who have made licensing deals with the groups whose content they use, and who had to do some fancy maneuvering to keep from being sued into oblivion. If anything Spotify is an example *supporting* the existing rights regime, because it shows that an on-demand streaming service with a wide library *is* possible.

            *sigh*

            They have to jump through hoops because of the record labels having so much power through copyright law in the first place. More artists are doing away with record labels and finding independent success without using copyright enforcement. The licensing schemes of the major labels makes copyright far too much about the middlemen, not the artist finding a way to benefit consumers in exchange for their talents.

            You can try to justify this all you want by saying Spotify supports an extreme regime, but think about this:

            It took the Big Three 10 years to finally accept they were wrong about Napster. More and more evidence maintains that people accept filesharing and don’t accept the harsh penalties of the DMCA which encroaches on censorship. And you still forget that Spotify could have came to the US with more features had it not been for the ridiculous IP laws in the US. Not only does Spotify have to worry about copyright issues, but it was sued for patent infringement. That’s pretty ridiculous given how most indies use the service to reach a new audience anyway.

            Well, given that copyright is a civil right, I would hope those that support civil rights. But the attraction of the idea of reducing an entire class of people to slavery so others can enjoy the fruits of their skill and labour for free may just be too tempting

            Copyright isn’t a civil right. It’s statutory. It was given to Congress with the express purpose to progress knowledge and learning. Not to help middlemen make more money, nor to provide artists with healthcare or social redistribution of wealth for infringement. We now have a ton of people that are able to create without needing permission to use content. From everything discussed and how the US has used prior restraint in the megaupload case, there are a number of people that will be questioning the need for more copyright laws in a lot of countries. But saying people have a right to copyright, that’s an automatic “permission” given thanks to the Berne Convention? And the requirement is taken away through other copyright laws, making it more difficult to know what’s copyrighted and what’s not? No, that doesn’t fly in the face of the actual civil rights given by the Constitution, particularly the 1st Amendment.

          • Copyright isn’t a civil right. It’s statutory.

            Well, in that sense, all rights are statutory. In the US freedom of speech, of assembly, of religion, etc. were all granted by the 1st Amendment to the Constitution. The right to bear arms, by the 2nd. And so on.

            Copyright was granted in the US Constitution itself.

            More broadly, the Universal Declaration of Human Rights adopted by the UN General Assembly in 1948 and binding on member states includes Article 27:

            (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
            (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

            It’s a civil right. Along with all the others.

            We now have a ton of people that are able to create without needing permission to use content.

            We’ve always had people who can do that. The fact that they can create means they don’t need to steal the content created by others. But they do need protection against others taking their work without permission or compensation.

            No, that doesn’t fly in the face of the actual civil rights given by the Constitution, particularly the 1st Amendment.

            There’s no conflict between any of the rights enumerated in the 1st Amendment and copyright.

            The American founding fathers may have managed to reconcile talking about equality and liberty while keeping slaves, but they never put any right to keep slaves or to benefit from slave labour into either the constitution nor any of its amendments.

          • Voice of Reason

            This was done with the US survey, the UK Hargreaves Report, the Dutch government’s report regarding copyright, the Swedish report… I like to study.

            By referring to them with abstract, generalized names rather than actual links to the reports, I’m left to wonder if you’re being purposefully obfuscatory. Because the Hargreaves report was specific enough to search for, I spent some time reading it this afternoon. Following that, I was also left to wonder if you even bothered to read it because curiously absent from the report (all 109 pages of it) was anything to supports your claim that “artists and creators have been doing quite well in spite of copyright laws not because of them.” In reality, the report contains conclusions that are quite the opposite, for instance:

            –”infringement is widespread”;

            –describing the internet as “an unmanaged … domain of … ‘free’ goods”;

            –concluding that, although the UK has more licensed digital music services than the US, that fact has “failed to … push back the incursion of free services based on copyright infringement.”;

            –”One element in this solution may be new mechanisms of enforcement to curb illicit competition ….”

            –citing evidence that “fun[ding of] new artists and investment] in [music] careers” was down as a result of infringement;

            –concluding that there is “no doubt that piracy is doing grave damage to their [copyright holders] interests”

            And Spotify continues to make the major labels money. Or have you never heard of a service you don’t use?

            Again, I’m not sure how this statement leads to your conclusion that “artists and creators have been doing quite well in spite of copyright laws not because of them.” Spotify is distributing licensed material and making payments accordingly. If artists are doing well, and it’s not clear that they (in the specific or the abstract) are, it is because of copyright (because these distributions are authorized by the rights holders) and not in spite of it. Implicit in your argument is that the viability of copyright is somehow exclusively based on economics. The only report you cited in support of that, not surprisingly, disagrees, stating that “economic evidence is not, of course, the sole driver of IP policy.”

            Wow… 39 movies harmed the economy through dubious numbers

            Your claim was that Megaupload was “vetted by the artists” who “leaked their own material on the site.” I’ll ask again. Can you please provide evidence that the artists behind those 39 infringing motion pictures that form the basis of the indictment, including one uploaded by a Megaupload staff member and another infringed 5 months in advance of its commercial release, vetted the service and leaked their own material to the site while simultaneously filing DMCA claims to have those works taken down?

            As to the latter part, I’m not sure you understand how a criminal process works in copyright law. Harm to the economy doesn’t form the foundation of a criminal copyright complaint. And the only number involved for purposes of a criminal complaint is multiplying the reproductions or infringements of a particular work by its retail cost and determining whether it is larger or smaller than $1000. There simply are no dubious numbers involved.

            When you compare the number of legal uses for Megaupload to what was deemed illegal

            As you hold yourself out to have some sort of inside knowledge of this particular event, perhaps you would like to provide statistics, along with the data and your methodology in calculating the statistics, from the Megaupload database as to the ratio of legal to infringing files present on the system.

            I haven’t seen too many people (other than those who work in the industry) say that Megaupload was bad.

            And I haven’t seen too many people complain about murder, except the people who are getting murdered.

          • Copyright was granted in the US Constitution itself.

            Given to Congress with one express purpose. As I’ve stated twice before.

            It’s a civil right.

            Nope. You don’t need copyright to create.

            . The fact that they can create means they don’t need to steal the content created by others. But they do need protection against others taking their work without permission or compensation.

            Such as DJ Steve Porter? Girl Talk? Who is the exact person that needs protection from copying? Where are the artists that haven’t gotten it yet where the copying of files has not helped them? Somehow, I keep hearing about this person but not one maximalist brings up a good number of artists that need copyright to survive despite all evidence saying they haven’t needed more laws, they’ve just utilized technology much better than others.

            There’s no conflict between any of the rights enumerated in the 1st Amendment and copyright.

            Funny, but [citation needed]. Taking down Rojadirecta and Megaupload exposes that lie for what it is. Your last paragraph is non sequitar.

            By referring to them with abstract, generalized names rather than actual links to the reports, I’m left to wonder if you’re being purposefully obfuscatory.

            Oh please. Stop being obtuse. This site has a one link limit before it has to be approved and I told you exactly which reports you can look up and see for yourself through Google. If you need something specific here’s the big one: Media Piracy in Emerging Economies. It breaks down competitive price points along with why people pirate. Hint: It’s not because people want things for free. They even have an entire section regarding book piracy. Might want to take a look.

            The Hargreaves report shows that there is a need to review copyright suggestions coming from the industry. Further, there’s little evidence for the need for more draconian copyright law.

            From that same report:

            Copying should be lawful where it is for private purposes, or does not damage the underlying aims of copyright…

            And one extra tidbit you should have read pertinent to this discussion.

            “Lobbying is a feature of all political systems and as a way of informing and organising debate it brings many benefits. In the case of IP policy and specifically copyright policy, however, there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy outcomes. Further distortion arises from the fact (not unique to this sector) that there is a striking asymmetry of interest between rights holders, for whom IP issues are of paramount importance, and consumers for whom they have been of passing interest only until the emergence of the internet as a focus for competing technological, economic, business and cultural concerns.”

            Again, I’m not sure how this statement leads to your conclusion that “artists and creators have been doing quite well in spite of copyright laws not because of them.”

            You’re looking at it from the wrong angle it seems. Do you hear about copyright creating content? No. Do you hear about copyright laws such as the mechanical rights, performance rights, or anything else being licensed in the news? Again, I doubt it. Most artists have not bothered to use copyright law since in all honesty, it’s quite expensive for the artists to use it. You get situations like Jay Maisel suing Andy Baio over pixelated art, and that’s the example of copyright being enforced. But you don’t hear about people enforcing a copyright. The claim “artists and creators have been doing quite well in spite of copyright laws not because of them” is accurate. Artists don’t bother taking down content, instead opting to create more while their other works are shared.

            Can you please provide evidence that the artists behind those 39 infringing motion pictures that form the basis of the indictment, including one uploaded by a Megaupload staff member and another infringed 5 months in advance of its commercial release, vetted the service and leaked their own material to the site while simultaneously filing DMCA claims to have those works taken down?

            Interesting how you get very specific about this specific instance but then you become vague in other areas…

            I’m talking about the service, not the specific movies. Also, Megaupload had a DMCA agent. Why not check Busta Rhymes’ tweets or P. Diddy supporting Kim Dotcom? How about Dan Bull’s Megaupload song? How about Megaupload’s song where they were learning to compete against Universal and the Big Three?

            Harm to the economy doesn’t form the foundation of a criminal copyright complaint.

            There’s the first problem right there.

            And the only number involved for purposes of a criminal complaint is multiplying the reproductions or infringements of a particular work by its retail cost and determining whether it is larger or smaller than $1000.

            So you’re basically admitting that not every person would pay the full retail cost of a DVD if they saw it online, but putting this argument to the test against an entire site that had legal uses besides piracy is worth all this effort?

            There simply are no dubious numbers involved.

            HHAHAHAHA! I’m sorry, but your last paragraph was my breaking point… I’m to believe the ICE can figure out the retail price of a product when they can’t do their own job accurately, their propaganda video is about protecting copyright and counterfeit for foreign nations, and they don’t have the sense to understand that they’re breaking their own Sherman Act in prior restraint. Sorry, there’s too many dubious numbers to take that seriously.

            As you hold yourself out to have some sort of inside knowledge of this particular event, perhaps you would like to provide statistics, along with the data and your methodology in calculating the statistics, from the Megaupload database as to the ratio of legal to infringing files present on the system.

            Link

            First, I didn’t say all that so kindly try not to write words for me. It makes you look bad. Second, since you seem not to want to read on another site:

            But users’ inability to access content that they’d legally stored on Megaupload has been leading to a populist backlash against the takedown. Academic Steve Su, for example, told The Sydney Morning Herald in Australia that the FBI’s mass takedown had inappropriately blocked legitimate content that he’d uploaded for sharing with his students.

            Interestingly, the majority of Megaupload’s user traffic came from outside the United States, based on statistics from traffic measurement company Alexa. The greatest share of user traffic came from France (10%), followed by Brazil (8.8%), the United States (7.3%), and Spain (7.2%), reported The Daily Caller.

            And I haven’t seen too many people complain about murder, except the people who are getting murdered.

            This just in: Copying a file on the internet is akin to being murdered. News at 11!

          • You’re a funny guy, Jay. Your ideas are intriguing to me and I wish to subscribe to your newsletter. I will file them between my handwritten Crosbie Fitch manifestos, right next to my copy of The Secret and Chicken Soup for The Pirate’s Soul.

            If you’re free this Friday, maybe you, me, and the girls can conference call each other so we can giggle about Mike Masnick. He’s so dreamy.

          • Nope. You don’t need copyright to create.

            But you do need it to protect the moral and material interests resulting from any scientific, literary or artistic production of which you are the author.

            That’s a human right.

            Who is the exact person that needs protection from copying?

            The one who wants to make a living from their labour rather than seeing their work used to enrich others such as Google and Megaupload without compensation.

            Funny, but [citation needed]. Taking down Rojadirecta and Megaupload exposes that lie for what it is. Your last paragraph is non sequitar.

            My last paragraph is the heart of the matter. Since you’re arguing that creators shouldn’t be paid for their efforts and should work for nothing, you’re promoting slavery.

            As for the [citation needed] – you’re right, a citation is needed. However you’re the one who needs to provide it since all you’ve offered so far is an assertion, completely unsupported by any sort of argument or evidence.

            If you want to claim the colour of the sky conflicts with the 1st Amendment, you’re free to do so, but others don’t have to refute that in detail. They just have to point out that the claim is nonsense.

            And shutting down criminal enterprises simply demonstrates that law enforcement works.

          • Voice of Reason

            I told you exactly which reports you can look up and see for yourself through Google.

            With respect, “US survey,” “Dutch government’s report,” and “Swedish report” are not specific references to any documents. These reports have official titles, and if you are citing them in support of your assertions, I would like to know what those titles are so that they can be searched for and read. For instance, the Hargreaves report that you mentioned has a title, it is: “Digital Opportunity: A review of intellectual property and growth.” If, as you claim, you have access to these reports, it should be little trouble for you to post their titles.

            If you need something specific here’s the big one: Media Piracy in Emerging Economies. It breaks down competitive price points along with why people pirate.

            But I didn’t ask for a report on why people in countries with emerging economics steal intellectual property. Rather, I asked you to support your claim, with citations that can be checked, that “artists and creators have been doing quite well in spite of copyright laws not because of them.” So far, you have yet to do so.

            You’re looking at it from the wrong angle it seems.

            No, I’m looking at it from the angle in which you framed. In this instance, that angle is your claim that the existence of Spotify conclusively proves that “artists and creators have been doing quite well in spite of copyright laws not because of them.” But when challenged with the fact that Spotify is working within copyright, and thus copyright benefitting artists, you respond with a confusing set of statements unrelated to your original point. Is it your claim that because the news media doesn’t report on private copyright license agreements, that somehow proves that “artists and creators have been doing quite well in spite of copyright laws not because of them?” As for the remainder of your statement about people, in the abstract, not enforcing copyright and artists, in the abstract, not taking down content, such a statement is so general and unfounded as to be incapable of a reasoned response.

            Interesting how you get very specific about this specific instance but then you become vague in other areas…

            Your claim was that Megaupload was “vetted by the artists” who “leaked their own material on the site.” I assume that you have information to support the claims that you make. So, with respect to those 39 infringing movies that formed part of the indictment, several of which were uploaded by the staff themselves, which of those were vetted by and/or leaked by the creators?

            I’m talking about the service, not the specific movies.

            Fine. Of those 39 infringing movies that form part of the indictment, which of the creators of those movies previously vetted the “service” and found it to be acceptable?

            Also, Megaupload had a DMCA agent.

            Irrelevant for purposes of the criminal complaint. Responses to DMCA notices only affect civil liability.

            So you’re basically admitting that not every person would pay the full retail cost of a DVD if they saw it online, but putting this argument to the test against an entire site that had legal uses besides piracy is worth all this effort?

            No. Your claim was that the criminal process was based upon “harm [to] the economy through dubious numbers.” When refuted, you retreated into a typical response that every infringement does not equal a lost sale. However, such a response is ignorant of the fact that sales numbers or damages are not part of a criminal inquiry. All that is required, at least under 1 of the 3 criminal liability sections, is determining the number of infringments and multiplying that by the retail price and checking it against 1000. If it’s higher, it’s a criminal infringement. You can bluster all you like, but it is anything but dubious.

            I’m to believe the ICE can figure out the retail price of a product when they can’t do their own job accurately

            Given that the authorities involved are the FBI and the Department of Justice, I’m not sure how ICE has any bearing on the deterimination of retail price, especially when the determination of retail price under 17 USC 506 is extremely well-defined in the case law.

            they don’t have the sense to understand that they’re breaking their own Sherman Act in prior restraint

            Prior restraint refers to the First Amendment. The Sherman Act is the federal antitrust statute. Neither apply.

            First, I didn’t say all that

            You made an authoritative statement based upon the “compar[ison of] the number of legal uses for Megaupload to what was deemed illegal.” Essential to that statement is an inference that you have done the actual comparison. And the only way to do that is to have access to the Megaupload database. So I’ll ask again. Please provide your statistics and methodology on how you determined the number of infringing versus noninfringing works in the database. Otherwise, would you like to retract your statement inferring that you have done a comparison of those files and uses?

            And I read the article that you linked. Nothing in it refutes the allegations in the criminal complaint or provides any quantitative support for legal/illegal use of the website.

          • Voice of Reason –

            You must have the patience of Job to respond to Jay. As a word of advice, you will never get a straight answer out of him regardless of how specific, or how many times, you ask a question. Any responses you get, as I’m sure you already have experienced, are often evasive, completely unsupported, or generalized to the point that no follow-up is even possible. They often look like this: “Nu-uh. People in Rwanda can’t afford to pay for cds. The sky is purple. Ergo, copyright doesn’t exist.”

            If you want to save yourself both time and frustration, just ignore him. The rest of us do. And be on the lookout for his alter-ego, Joe, who is equally disagreeable and intractable.

          • Jay IS Mike Masnick.

            Funny thing about that link he posted supposedly saying most of Megaupload’s files were legal: there was no such evidence given on the page.

            But here’s some real statistics about cyberlockers:

            http://documents.envisional.com/docs/Envisional-Internet_Usage-Jan2011.pdf

            Oh and about how musicians make more money than ever:

            http://www.digitalmusicnews.com/permalink/2011/111123tunecore

          • Jay IS Mike Masnick.

            It’s a fascinating theory. Upon further examination, the same religious, scorch the earth, anti-IP fervor and the near total ignorance of facts, law, history, and policy are all there. And I get the same acid-reflux feeling in my stomach reading Jay’s nonsense that I do reading that inane drivel that Masnick tries to pawn off as psuedo-journalism. I wouldn’t be the least bit surprised, now that you mention it, if it actually was him.

  2. The article by Mr. Ruen is indeed quite interesting, so much so that I trolled the web to find out more about this gentleman and any other articles he may have published. I found many, and in the process of reading them found one who at one time described himself as a freeloader, only to later examine his actions and those of others in a much broader context than the rather simplistic explanations and theories that permeate the internet community.

    You are correct. There is much food for thought in the cited article (and in his other published articles as well).. It is a shame that his articulation of the competing issues did not find their way into the broader discussion regarding “rights of creators” versus “rights of consumers”. I strongly suspect they would have helped frame what is actually at stake in the ongoing debate.

    • Ruen’s article was a phenomenal read. I’ll be checking out his other publications as well. Do you have any particular favorites so far to start out with?

  3. I do have to say I lost count of the the number of people saying “SOPA is going to make MY PERSONAL WEBSITE shut down and SEND ME TO JAIL without ANY NOTIFICATION!”

    • You should be worried at the way people were controlled; convinced to protest SOPA when they had no idea what the bill actually said.

      Bush started a war with that type of propaganda.

  4. But you do need it to protect the moral and material interests resulting from any scientific, literary or artistic production of which you are the author.

    That’s a human right.

    … You want to protect moral objections to someone downloading your work… And you want to mix this belief with digital goods that aren’t physical property. I don’t believe you’re listening to yourself as you write out your argument.

    It’s not a human right to protect your work by a government monopoly. You can get mad about it. You can feel protective of it. But your ability to create is not hampered by applying for a copyright. The Berne Convention gave copyright the “moral rights” you espouse. Without those rules, copyright would once again go back to a utilitarian concept that Congress can choose to enact or not. Yet again, if you break copyright down to its basic structure, it’s a government deal with the public to have artists and writers create more. Having concepts such as retroactive copyright and copyright longer than humanly possible break that covenant. Technology makes copyright an outdated concept. Now that people have moved on from the Gutenberg press and onto the computer (whose entire job is to copy) it’s going to be harder and harder to justify the copyright laws that have no end game but to harry new businesses.

    The one who wants to make a living from their labour rather than seeing their work used to enrich others such as Google and Megaupload without compensation.

    Uhm… The artists that seem to be making it are the ones that use these services. Your rebuttal makes no sense.

    Since you’re arguing that creators shouldn’t be paid for their efforts and should work for nothing, you’re promoting slavery.

    I never said they shouldn’t be paid for their efforts. That’s entirely your logic going in a different direction. Creators make money by utilizing new services. They just do it without copyright enforcement. I’ve been pretty clear that the copyright laws such as statutory damages or taking down a service before a trial don’t win those artists any new friends or fans or make them more money.

    However you’re the one who needs to provide it since all you’ve offered so far is an assertion, completely unsupported by any sort of argument or evidence.

    I did. I showed how other countries were using Megaupload and you ignored that. I also talked how Rojadirecta’s erroneous takedown before there was a court order as well as the entire seizure of Megaupload and their founder expose the lie of a conflict of the 1st Amendment. Both occurred without a trial and both companies had no hearings to attend by the government. Further, anything that occurred with the Megaupload seizure took down a lot of legal files. Might want to look into that.

    And shutting down criminal enterprises simply demonstrates that law enforcement works.

    If they are considered a criminal enterprise, then they should have a court hearing to figure out what they are doing that’s so bad. If they have a civil case already in the court then what the hell is the point in dragging them into a criminal case? Quite frankly, the DoJ is throwing away the Sherman Act and choosing sides. And it’s exposing that the ICE falls in line with Hollywood to protect their interests instead of letting them settle their disputes in court.

    If, as you claim, you have access to these reports, it should be little trouble for you to post their titles

    Swedish – “Big In Sweden: Spotify-Crazy Youngsters Are Bellwether For Music Biz”

    “If we compare file-sharers with those who do not share files, we find that there is no difference in how often they buy CDs. However, a larger percentage of file sharers pay to download individual songs than those who do not share files.”

    Now, legislation coupled with a homegrown, easy-to-use music product is showing everyone a way ahead. But the move from ownership to access models makes it more crucial than ever that the economics of this new model stack up for everyone in the value chain

    Dutch – “Economic and cultural effects of file sharing on music, film and games ”

    File sharing has significantly enhanced access to a wide and diverse range of products, albeit that access tends not to have the approval of the copyright holders.

    But I didn’t ask for a report on why people in countries with emerging economics steal intellectual property. Rather, I asked you to support your claim, with citations that can be checked, that “artists and creators have been doing quite well in spite of copyright laws not because of them.”

    Valve has done quite well in Russia. That’s a supposed “pirate haven”. He lowered prices and made sure Russia had less translation problems as well as gave them next day/week releases on the global market on games. Most other developers have a windowing effect, where they wait six months to release content in other countries. Russia is now the second best market for Valve besides Germany.

    Compare that to Ubisoft who lost millions of dollars with arbitrary DRM meant to “protect their work”. The most recent work they’re protecting is DRM which reads your motherboard and figures it’s a different computer all together. There’s a reason they lost $79 million in Q3 of last year.

    Kickstarter has made nearly $100 Million for people that used it with a lot of success.

    The manga/anime industry has gone on to raise $2 billion in 2009. Looking at the WIPO article: “The Manga phenomenon”, you can see that publishers failed to meet demand. This is the same industry that started out in the 80s when people traded video tapes for shows. People learned translations of Japanese and put up those scanned mangas online for others to find, enjoy and watch. Piracy created the demand and spread the Japanese comics far more than enforcement ever did. When you hear of Bandai shutting down, it’s because of how they failed to meet this demand with outdated series and misunderstandings of what people wanted.

    Then we have the other article “Effects of Piracy on Quality of Information Goods”. Here’s the quick translation for you: Less enforcement of copyright laws usually lead to greater quality in output in many cases. The more you enforce, the less societal benefits. Same goes for the anime/manga industry (which benefitted more from piracy of goods than enforcing a copyright in Japan against the “rogue” America), Valve who learned to adapt, or the artists here in the US who used Megaupload such as Swizz Beatz, Alicia Keyes, or any of the ones in the Megaupload song that Universal hated so much.

    In this instance, that angle is your claim that the existence of Spotify conclusively proves that “artists and creators have been doing quite well in spite of copyright laws not because of them.” But when challenged with the fact that Spotify is working within copyright, and thus copyright benefitting artists, you respond with a confusing set of statements unrelated to your original point.

    No, Spotify would be a much better service if the copyright issues we currently have weren’t in force. They have to change their model and make it worse because the Big Three specifically required a certain number of adjustments to the business model to appease them. The main culprit is the music licensing deals that make no sense.

    Why should a label receive an equity stake in the company?

    How about suing new music companies such as Grooveshark, iMeem, or Napster who help to stem piracy?

    How about nondisclosure agreements on the deals that labels make?

    Then you factor in how artists are left out of those deals and don’t make money with recording contracts. So you have someone like Dotcom come in offering a 90% deal for you with Megabox, and gets more artists to vet for the company? Suddenly he’s a bad guy in this when the labels pay their top people in the RIAA $2 million a year to shut down companies that might help them out? Suddenly you claim piracy is the bad guy here?

    Your claim was that Megaupload was “vetted by the artists” who “leaked their own material on the site.” I assume that you have information to support the claims that you make.

    Since I’ve answered you once on this and you refuse to accept it that’s your issue. I talked about the artists that vetted this as well as having Swizz Beatz on his way to becoming CEO of the company. That’s “vetted by the artists” since some pretty high profile names came out to vouch for Megaupload. Your claim has been answered.

    You can bluster all you like, but it is anything but dubious.

    Oh please. Those numbers are not based in reality at all. The very premise assumes that every person watching a stream or downloading a file would have paid for it. Further, the BSA (which the Attorney General Neil McBride was a part of) makes any claims dubious. Hell, the Obama Administration has five RIAA lawyers who believe whatever the MPAA and their former colleagues say. You expect anyone to believe that ICE isn’t working as the private police force of the ones funding this operation?

    Prior restraint refers to the First Amendment. The Sherman Act is the federal antitrust statute. Neither apply.

    The government is utilizing prior restraint against a site for criminal infringement. The Sherman Act is due to the fact that Megaupload is a competitor to Universal for artists. Both apply.

    And I read the article that you linked. Nothing in it refutes the allegations in the criminal complaint or provides any quantitative support for legal/illegal use of the website.

    The number of people using the site from other countries is not support for the legal use of a site… You seem to have a narrow definition of what works as proof for you.

  5. Also, Kent, if you were able to stop being neurotic, I’d be amazed.

    If cyberlockers are profiting so much, then why doesn’t the MPAA create one and put them out of business? Further, if there were no legal uses of cyberlockers, then why has Rapidshare been deemed legal on a number of fronts, and why has the Megaupload been sited for not having a search engine, when Rapidshare was deemed legal for this very same issue?

    Hell, there’s some items that make you scratch your head in how it makes sense.

    Why you seem to think David Price’s work states that cyberlockers are some evil bad guy when Price has said on numerous occasions Piracy is the industry’s fault is beyond me, but feel free to keep up your ad hom attacks. They’re pretty entertaining as you run around proving my points.

    • Why doesn’t the MPAA create something where you can get movies for free? That would be an idiotic question wouldn’t it?

      But let’s say you meant why doesn’t the MPAA create something where you can get movies for 10 bux a month (or less) like the cyberlockers. Maybe because a couple already exist. Netflix and Amazon for example.

      Pretending cyberlockers aren’t predominantly used for infringement just makes me roll my eyes. Everyone I know uses them for precisely that about 75% of the time. Exactly what the data shows. All the proof needed that this is true is how other cyberlockers behaved the moment megaupload got busted. People behaving legally don’t have to behave like that.

      You get heat because you are so purposely willfully blind to things like this; things that stare everyone in the face. This is why no one takes you seriously. No one in their right mind would.

      Mediafire is best at responding to DMCA takedowns, but still drags its feet if it feels like it. The cyberlockers are not held to any kind of stringent protocol, which is absurd. The DMCA needs to be more strictly held to its intent or modified. It for sure isn’t serving its original purpose, as its original purpose was certainly not to allow a mass infringement business model to succeed.

      You can try denying that till you’re blue in the face and you’ll still be wrong.

      • But let’s say you meant why doesn’t the MPAA create something where you can get movies for 10 bux a month (or less) like the cyberlockers. Maybe because a couple already exist. Netflix and Amazon for example.

        That doesn’t answer my question. I specifically asked why Universal Studios, Disney, or any other movie studio make their own cyberlocker/streaming site. Netflix and Amazon are not owned by the studios.

        People behaving legally don’t have to behave like that.

        That’s an even larger misleading statement than normal coming from you. The police come to grab someone on the street then decide everyone else is an accomplice, you think others wouldn’t be spooked?

        People used the cyberlockers to transport files. Is it used for piracy? Sure. But then you go on to assume that all of the files on a cyberlocker are infringing. So unless you’re looking at every file on it, you have no idea what’s inside. In essence, what you say is “Everyone using a cyberlocker is using it illegally”. That can’t be taken seriously.

        This is why no one takes you seriously. No one in their right mind would.

        Kent, you’re known for ad hom attacks and stating such false claims. I could care less if you can’t see what’s in front of you or don’t bother to look at research, instead opting for a quick word and an egress to your own moral high ground. If your sentences don’t make sense, I call you out on it. And you do that a lot with misleading stats and false assumptions. You should work on that.

        It for sure isn’t serving its original purpose, as its original purpose was certainly not to allow a mass infringement business model to succeed.

        The Megaupload CEO is being charged under the PRO IP and NET Act. And if a mass infringement business model isn’t supposed to succeed…

        Then why did people enjoy using the VCR, DVD player, MP3 player, and a number of other “mass infringing” models? I guess transferring an mp3 from my computer to the player is costing the RIAA billions. Hell, Megaupload’s operation is only 2% of “damages” that the industry seems to have incurred.

        • Masnick- I have no idea why you insist Universal, et al should offer their own streaming service; letting another company aggregate all of the studios’ content is probably more efficient, and certainly avoids anti-trust issues.

          As for the rest of your “I am rubber, you are glue”-type responses, people that are behaving legally don’t freak out simply because the guy that sits next to them at work gets arrested; unless of course they’re engaging in the same illegal activity. That’s human nature, one of your most famous willfully blind-spots.

          As for comparing my mp3 player sitting on the bookshelf over there, a physical item, to a business model of mass illegal distribution of copyright infringing material, let’s just say that such a hilariously inane analogy(sic) confirms to me who you really are.

          • *sigh*

            I have no idea why you insist Universal, et al should offer their own streaming service; letting another company aggregate all of the studios’ content is probably more efficient, and certainly avoids anti-trust issues.

            How can they know unless they try? Suddenly you’re an economist or a banker now? Nice dodge on answering the question.

            That’s human nature, one of your most famous willfully blind-spots.

            Your entire statement isn’t even based on actual situations such as the Napster takedown which was proven in court. That was BEFORE anything was shut down. But feel free to continue your baseless attacks. They amuse me.

            As for comparing my mp3 player sitting on the bookshelf over there, a physical item, to a business model of mass illegal distribution of copyright infringing material, let’s just say that such a hilariously inane analogy(sic) confirms to me who you really are.

            That’s your analogy. Since every transfer is a lost sale, obviously, the mass infringement of the mp3 player (which the same groups freaked out about in the early 90s with the Rio Diamond lawsuit) were still wrong about how to make money on the internet. But obviously, you have to be obtuse not to understand the details on that important case. Or the Betamax v VCR… Or DVD… Or the importance of time shifting… Or how fair use equates to more economic growth than enforcement…

            Yeah, what’s facts when you can just go for strawman arguments?

    • If cyberlockers are profiting so much, then why doesn’t the MPAA create one and put them out of business?

      I can think of two possible explanations: (1) They hate making money or (2) It’s a lot harder to profit off giving something away when you have to pay to create it. I know which one I think is more likely.

      Further, if there were no legal uses of cyberlockers, then why has Rapidshare been deemed legal on a number of fronts

      Just a note, Rapidshare wasn’t “deemed legal.” A prelimary injunction against it was denied — not the same thing as being deemed legal.