How Can We Get Artists Paid On The Internet? A Chat With David Lowery — Perhaps you’ve seen David Lowery’s letter to Emily White, which lit up the internet this week. (My favorite headline in a response: Our Digital Innocence Just Died. And David Lowery Killed It…) Maria Bustillos of The Awl talked with Lowery about the piece and other issues relating to building a sustainable creative ecosystem in a digital age.

Changing copyright laws won’t solve everything — Helienne Lindvall reports on the “copyleft math” put to use by the UK’s Vince Cable regarding implementing that country’s Hargreaves Report. For example, according to the IPO, the proposed parody exemption would result in a £600m growth per year; quite astonishing in a country where the total value of the music industry is estimated “to be around £1.33bn.”

NMPA Inks Deal With Universal Music Group Over VEVO, YouTube Videos — Songwriters and music publishers will now get a cut of ad revenues from online music videos. According to Billboard: “The NMPA termed the agreement, which covers North America, a groundbreaking model licensing deal because it will allow  songwriters and music publishers to share in revenue from music videos. Up until now, while Youtube and VEVO were making money on their ad-supported services, indie music publishers had not shared in that revenue because the major labels long considered videos as promotional tools and never paid for licensing the songs used in the videos.”

Google moves to snuff sites that rip music from YouTube videos — PaidContent reports: “The company’s move against YouTube-Mp3 comes at the same time that it is spending hundreds of millions of dollars on partnerships to create new YouTube channels that will offer original programming. Google may thus be seeking to protect its investment and reassure its partners that it can control the new distribution environment. Or the dispute may signal a more permanent shift in which Google begins to adopt the outlook of a copyright owner.” Chris Castle has another take: “Always be wary of anything from the tech press that begins ‘the free ride may be ending’ because that is never true.”

Stats And Figures On 30 Years Of Sampling [INFOGRAPHIC] — Hypebot presents this look at sampling from Whosampled, a site that catalogs the pedigree of samples since their introduction in music decades ago. Most surprising: the prevalance of samples is at an all-time high, a stat at odds with much IP scholarship.

German Court’s Verdict in Kino.to Case Supports an Internet that Works for Everyone  — The MPAA offers its take on the recent conviction of the ringleader of a major German streaming portal. Said the Association, the decision “paves the way for an internet that works for everyone by clearly recognizing that those who illegally distribute content are not in business for the greater good. The Kino.tv business model worked for its operators who made millions from ads but not for viewers whose privacy was compromised and not for the many thousands of creators and makers whose content was made available for free, denying them the value of their hard work and of the economic incentive to keep creating and making it.”

Why Can’t We Be Friends? — Sandra Aistars reflects on the future of conversation in a post-SOPA world. “We all want the internet to mirror the kind of society we profess to be. One that allows us to gather and exchange thoughts online, one that supports democracy and does not threaten others with exploitation, whether they be the unwary misled by scams, children and women exploited for the pleasure of others, or artists and creators who we neglect to compensate for their work. Just as a vibrant, open and free society cannot exist without empathy for our fellow travelers and mutual respect for basic rights and privileges, so too a healthy internet society must accept basic rules of the road.”

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June 15, 2012 · · Comments Off

Pixar Story Rules (One Version) — A collection of tweets from Pixar story artist Emma Coats that provide a great set of tips for writers of all stripes. Example: “#11: Putting it on paper lets you start fixing it. If it stays in your head, a perfect idea, you’ll never share it with anyone.

Not Free, Not Easy, Not Trivial — The Warehousing and Delivery of Digital Goods — Kent Anderson at the Scholarly Kitchen points out, contrary to some assertions, that digital goods have costs. “Even beyond just their power requirements, digital goods have particular traits that make them difficult to store effectively, challenging to distribute well, and much more effective when handled by paid professionals.”

The Music Industry in the Digital Age — RIAA CEO Cary Sherman addressed the 2012 Personal Democracy Forum on Monday. A must-watch video.

All the World’s a Stage (For Suits Against YouTube) — Future of Music Coalition reviews recent lawsuits involving YouTube’s potential copyright liability in the US, France, Germany, and Italy. The Coalition also notes, “While sovereign nations undoubtedly have the right to create and interpret the laws of their land as they please, the various international lawsuits against YouTube serves a case study in why international harmonization of copyright and trademark laws has become increasingly important in recent years.”

Whatever happened to the YouTube killers? — GigaOm reports on the “growing number of web video ventures that once set out to compete with YouTube but never came close. Some of them had to shut down, others changed hands. Some are trying their luck at a new direction while others seem stuck: forgotten but never taken offline.”

Warez Download Site OneDDL Calls It Quits Citing Legal Concerns — Also shutting down, another cyberlocker. “‘The legality of websites, such as ours, has always been a rather grey area. I had believed that this ambiguity would work to our advantage and originally, that is what lawyers told us (yes, we went to see lawyers),’ says the site owner. ‘Lately however, the landscape has changed, and it appears the grey is gradually becoming black and white, unfortunately not in our favour.’”

Amazon’s markup of digital delivery to indie authors is ~129,000% — Meet the new boss, same as the old boss. Author Andrew Hyde discovers that Amazon takes a 30% cut when it sells e-books through its site AND a healthy delivery fee (totalling nearly 50% of the list price). In a follow-up piece, Hyde reports that after compressing and resubmitting his manuscript, he was able to bring Amazon’s total cut down to 36%, but also notes that his buyers easily switched to other outlets. “The argument against … is that Amazon drives sales, which indie authors are finding out, isn’t the case. Your readers drive your future sales.”

Glen Hansard and Markéta Irglová’s Once Takes Home Eight Tony Awards — Congrats to the songwriting duo for a big win last Sunday. The musical had previously been a film (highly recommended), with the song “Falling Slowly” winning an Academy Award for Best Song and the soundtrack gaining a Grammy nomination. All well-deserved.

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By now, you’ve probably heard of this week’s internet soap opera involving The Oatmeal and Funnyjunk. If not, here’s the original post, and an article from Ars Technica describing what happened next.

The story has provided plenty of fodder for discussion, especially concerning copyright. What’s interesting is the turn some of the conversation has taken. For over a decade, we’ve been told by copyright skeptics in academia and the tech sphere that copyright is irrelevant to creators, that people don’t respect copyright because they don’t believe in it, and that “it would be both unjust and impractical to hold companies whose systems happen to automatically transmit or store the content responsible for words they didn’t write, pictures they didn’t take, or videos they didn’t create.” The underlying premise adopts an either/or approach: you can have copyright or the Internet, but not both. It sets up a false dichotomy between established creative industries, who prefer the former, against digital natives, who prefer the latter.

But if there’s one encouraging aspect from this story (besides the generous donations made to two charities), it’s the growing awareness that copyright issues are not so reducible to such binary thinking. Consider the following popular comments on one of the Reddit posts for this story. The first is currently the top comment on the site:

banksey18182
I just wish Reddit would take more time to realize that rehosting images like this actually does hurt the original content creators.
Sure we go all out and harp about “Linking to the Source” . . . etc. etc. . . but the truth is that anything linking to a source will only get a fraction of the traffic that original submission will receive.

Next is a response to user Roflzilla, who wondered, “I am curious what Funnyjunk’s side of it [is] though.”

suddenly_ponies —
There IS no other side. Sites like Funnyjunk, memebase, and, yes, even Reddit profit greatly from the theft of art and other great things. Youtube managed to turn it around and share the profit thus making nice with everyone (users and content providers), but they too were built on theft while hiding behind the myth that it’s hard to police content.

The following includes two responses:

vitto2point0
You do know that imgur operates the same way that funnyjunk does right? And you all post deviant art, SMBC, XKCD etc on there then to reddit where imgur makes bazillions in profit and nothing for the artists… Yet you seem to give a shit now?

JoeMomma8008 —

Great point…  Maybe more people will realize what goes on and this is the straw that broke the camel’s back.  Hopefully people that do see that this happened + the comments and be a little bit more mindful about what they post online.

I’m guilty of putting stuff on DA but I’m glad I haven’t done it in awhile.  Even websites like shutterfly do the same thing.  You upload a photo, they make money on you buying shit from them.  Bastards.

throwawaylifad —

They give a shit when it’s someone they like but when it comes to piracy or other copyright infringement they make posts about excercising their natural right to download anything they like

Finally, an exchange that is short and to the point:

eatme547
Is having a user upload the Oatmeal’s material to FunnyJunk and FJ making money off of the advertisement different from having a user “upload” (insert content here) on to the PirateBay and PB making money off of the advertisement?

Peritract

No.

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The Harvard Law Review recently conducted a symposium on The New Private Law (an admittedly academic area that I haven’t yet delved into too deeply). I was attracted by contributions by Abraham Drassinower and Richard Epstein on copyright law. But what really caught my attention was law professor Henry E. Smith’s paper, Property As a Law of Things.

In it, Smith challenges the prevailing view of property as a “bundle of rights,” criticizing it as not offering a complete theory of property law. What I found interesting is how Smith at several times notes that much of property law is centered around the concept of “exclusion” — if something is considered yours, you can prevent others from using it.

Property has purposes and employs various means to serve them. The purposes of property relate to our interest in using things. Desirable features of a system of property — stability, promotion of investment, autonomy, efficiency, fairness — relate to the interest in use. There is no interest in exclusion per se. Instead, exclusion strategies, including the right to exclude, serve the interest in use; by enjoying the right to exclude through torts like trespass, an owner can pursue her interest in a wide range of uses that usually need not be legally specified.

The “right to say no” is central to property law, but it is not the goal of property law. This is, perhaps, an obvious point, but, as Smith explains, it causes much confusion when we think about the means and ends of property:

The architecture of property emerges from the process of solving the problem of how to serve use interests in a roughly cost-effective way. In modern societies, the solution usually involves first the application of a use-neutral exclusion strategy, and then refinement through contracts, regulations, common law doctrine, and norms. Exclusion is at the core of this architecture because it is a default, a convenient starting point. Exclusion is not the most important or “core” value because it is not a value at all. Thinking that exclusion is a value usually reflects the confusion of means and ends in property law: exclusion is a rough first cut — and only that — at serving the purposes of property. It is true that exclusion piggybacks on the everyday morality of “thou shalt not steal,” whereas governance reflects a more refined Golden-Rule, “do unto others” type of morality in more personal contexts. It may be the case that our morality itself is shaped to a certain extent by the ease with which it can be communicated and enforced in more impersonal settings. I leave that question for another day. But the point here is that the exclusion-governance architecture is compatible with a wide range of purposes for property.

The same is true for copyright law. At its heart, copyright law secures exclusive rights to creators of original expressive works: the right to copy and distribute, the right to publicly perform and display, and the right to make derivative works. Though some commentators grow squicky at the mention of “property talk” in copyright discussions,1 the exclusive right of an author to copy her work is functionally the same as the exclusive right of a landowner to occupy her land or the exclusive right of a property owner to possess whatever the thing may be.

The confusion Smith refers to, over exclusion as a value, is very much present in copyright discussions. Many suggest that “relying on copyright” is the same as “preserving outdated business models.” What use is copyright if, for example, creators can raise funds on Kickstarter, or release their work online freely and seek remuneration through ancillary avenues?

These are valid choices for any creator, but it is vital to remember that they remain just that: the creator’s choice. Those values Smith refers to — “stability, promotion of investment, autonomy, efficiency, fairness” — are served by this. The “right to say no” that copyright secures is merely shorthand for ensuring a meaningful “right to say yes” to uses that are valuable to both the creator and the general public. To say that new business models refute the need for copyright is to confuse exclusion as a framework for furthering copyright’s goals with exclusion as a value in and of itself.

That’s not to say “exclusion” is the be all and end all of any property system. As Smith explains:

The exclusion strategy implemented as a right to exclude is at the core of the mechanism property uses to serve owners’ and society’s real interests. The right to exclude does not require an owner, whether it be an individual, a group, or the state, to actually exclude others; the gatekeeper can decide to include. Nor does the fact that a right to exclude follows automatically from the organization of modular things through an exclusion strategy mean that the right to exclude is absolute.

This is a strategy that has served copyright’s purpose well, especially when new technologies become popular. In 1909, Congress recognized that songwriters have the exclusive right to make mechanical reproductions of their works onto phonorecords and other mechanical devices, and recorded music has since become an integral part of many of our lives. US courts began to recognize an exclusive right to perform songs via broadcast radio in the 1920s.2 Today, radio is a multibillion dollar industry that penetrates nearly every US household. Cable television providers were at first exempt from copyright law for retransmitting broadcast shows, but Congress changed that in 19763 — this industry too has grown in size and reach since then, and original cable programming has progressed from endearingly awkward cable access shows to programs like Breaking Bad, Louie, and Burn Notice.

Granted, in the case of mechanical reproductions and cable retransmission of broadcast programs, US law has created compulsory licenses that allow certain uses, coupled with compensation set by statute, without requiring permission from the copyright holder. The existence of such compulsory licenses doesn’t negate what I’m saying. As mentioned above, there is no value in exclusion itself, and the right doesn’t require actual exclusion; compulsory licenses demonstrate that there are times when there are certain values — e.g., lowered transaction costs,4 concerns about monopoly5 — that are better served through alternatives to exclusion.

Creators, technology companies, and the general public have all benefitted from this framework that starts with exclusivity. Continuing to secure copyright’s exclusive rights is important to further the goals of copyright. In the words of the US Copyright Clause’s author James Madison, “[t]he public good fully coincides … with the claims of individuals”6 — or, as Register of Copyrights Maria Pallante stated recently, copyright is “for the author first and the nation second.” To say otherwise is to confuse copyright’s exclusivity as an ends rather than a means, setting it up as a strawman to strike down in an underdeveloped view of the nature of copyright.

Footnotes

  1. For example: Bill Patry, Copyright and the Why of Property Talk (2009); Steve Collins, ‘Property Talk’ and the Revival of Blackstonian Copyright (2006); Siva Vaidhyanathan, Copyrights and Copywrongs, pg 11-15 (2001). []
  2. William Henslee, What’s Wrong with U.S.?: Why the United States Should Have a Public Performance Right for Sound Recordings, 13 Vanderbilt Journal of Entertainment and Technology Law 739, 754 (2011). []
  3. Niels Schaumann, Copyright Protection in the Cable Television Industry: Satellite Retransmission and the Passive Carrier Exemption, 51 Fordham L. Rev. 637 (1983). []
  4. Copyrighted Broadcast Programming on the Internet, Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Courts and Intellectual Property Committee on the Judiciary, US House of Representatives, 106th Congress (June 15, 2000): “For the cable license, Congress believed that the transaction costs associated with a cable operator and copyright owners bargaining for separate licenses to all television broadcast programs retransmitted by the cable operator were too high to make the operation of the cable system practical.” []
  5. Music Licensing Reform, Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Intellectual Property, Committee on the Judiciary, US Senate, 109th Congress (July 12, 2005): “due to concerns about potential monopolistic behavior, Congress also created a compulsory license to allow anyone to make and distribute a mechanical reproduction of a nondramatic musical work without the consent of the copyright owner .” []
  6. The Federalist No. 43. []

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‘South Park’ Wins ‘What What (in the Butt)’ Legal Fight — The Seventh Circuit affirmed a lower court’s ruling that a South Park parody of the viral video “What What (in the Butt)” was fair use. What’s notable here is that the ruling was made on a motion to dismiss, before any discovery had commenced. The court’s ruling could lower the risk of litigation for legitimate fair users.

Getting Paid is a Moral Right, too! Why Creative Commons Gets it Wrong — The 1709 Blog presents this compelling look at Creative Commons licensing from legal scholar Dr. Mira T. Sundara Rajan. “In the United States, artists who want moral rights can opt for licensing their work through Creative Commons, but (unless they choose to license only a few select works to benefit from ‘free advertising’), they cannot expect to enjoy moral rights protection and earn money from their work at the same time. Welcome to the future?”

Scenes From The Pounding Heart Of A Tech Bubble — Buzzfeed’s Jack Stuef paints a picture of TechCrunch Disrupt NYC, New York City’s largest startup conference, that is bustling with absurdity. “‘We’re the original tech vertical,’ he said, then paused. ‘It’s an ironic thing because it is disruptive,’ he continued, staring unblinkingly into my eyes. I still don’t know what that meant.”

Artists, Know Thy Enemy – Who’s Ripping You Off and How… — Another great post from The Trichordist: “Let’s be clear about this, our battle is with businesses ripping us off by illegally exploiting our work for profit. This is not about our fans. It is about commercial companies in the businesses of profiting from our work, paying us nothing and then telling us to blame our fans.”

B&N: DOJ e-book suit endangers consumers, bookstores and copyrighted expression — Barnes and Noble weighs in on the Fed’s anti-trust suit involving e-books. According to PaidContent, “B&N argues that the proposed settlement is a government action ‘analogous to a cartel imposing a detailed business model on publishers.’ It would transform the DOJ ‘into a regulator’ and would ‘injure innocent third parties, including Barnes & Noble, independent bookstores, authors, and non-defendant publishers; hurt competition in an emerging industry; and ultimately harm consumers.’”

BitTorrent Admin Jailed For Tax Evasion On Site Donations — “The former administrator of the PowerBits private tracker was found guilty of copyright infringement and tax and accounting fraud after he failed to register donations provided by the site’s users as income with the tax authorities. He will serve one year in prison.” Perhaps Sweden needs to innovate instead of relying on its outdated business model of “collecting taxes.”

Guest Post: Is Copyright a threat to Free Speech? by David Newhoff — Filmmaker Newhoff provides this provocative article arguing that, rather than clashing, copyright and free speech complement each other. “If the U.S. is founded on one idea above all others, it’s that there is a link between free enterprise and freedom itself. Yes, this ideology has its flaws, and we’re still living through the economic woes of certain kinds of enterprise run amok; but let’s not throw out the baby with the bankers just yet.”

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The cult of free – a user’s guide — John Degen provides this spot-on look at the core strategies of the freecult, a post that apparently hit a little too close to home for some free culture advocates. He follows up with another excellent piece, is there actually a freecult manual?

How Hulu’s Battleground changed the web TV ballgame — A great profile from GigaOm’s Janko Roettgers on Hulu’s first original scripted series and its implications for the future of online TV. I’d add that much of the show’s initial success is due to the fact that it is very, very good. Worth checking out.

How Phil DeFranco plans to save YouTube — Also from Roettgers: “So is all well in YouTube land? Not exactly. ‘Smaller YouTubers need to evolve, because it is a very toxic world out there,’ DeFranco told me. It’s hard for up-and-coming producers to get noticed at all, he said. And when they finally catch a lucky break and one of their videos goes viral, they’re bound to get offers of help from all the wrong places.”

Exclusive: FilesTube Comments on Google Transparency Report — Cyberlocker search engine FilesTube topped the list of targetted domains in Google’s transparency report, clocking in over 400,000 DMCA requests to remove URL’s from Google over the past year. According to statements it made to ZeroPaid, FilesTube itself receives 60,000 DMCA notices a day.

The Meme Generation — Matt Labash of the Weekly Standard presents a scathing, humorous, and thought-provoking writeup of the third annual ROFLcon, a conference for the “worker bees, Internet-famous celebrities, and leading intellectual lights of the universe known as Web 2.0, which is forever, reverentially, and loudly in the business of congratulating itself.” Highly recommended, with such gems from Labash like this: “True, as the tech triumphalists often crow, everyone now has a voice. It’s become an article of faith that this is an advance we should all be grateful for. Yet about 50 percent of those voices, at any given moment, seem to want to say nothing more than, ‘You suck.’”

Google’s “Transparency” Masquerade — Ethical Fan offers its thoughts on Google’s Transparency Report. “The picture being painted by the anti-copyright press is that Google is doing their part to help copyright owners.  Nothing could be further from the truth.”

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Last week, Google expanded its Transparency Report to include data on notices it has received from copyright owners for links to infringing content. The Report now shows the number of notices, as well as their sources and targets, since July 2011.

The massive data release has triggered plenty of comment from news outlets and bloggers following copyright and internet issues. But there is one interesting fact drawn from Google’s Report that I want to highlight.

Copyright skeptics commonly try to make the claim that copyright enforcement is prone to abuse.1

These claims were especially prevalent during last winter’s debates over SOPA and PIPA. In an article on Popular Mechanics, for example, Adam Savage of Mythbusters said, “This is exactly what will happen with Protect IP and SOPA. We’ve seen it again and again. Give people a club like this and you can kiss the Internet as you know it goodbye.”2

The Google Report, however, paints quite a different story.

Google notes that, “From time to time, we may receive inaccurate or unjustified copyright removal requests for search results that clearly do not link to infringing content,” adding that it does not comply with such requests. How many of these requests are there? According to Google, “We removed 97% of search results specified in requests that we received between July and December 2011.” That means that out of all the requests Google receives, only 3% were sent by mistake or in bad faith.

Three percent.

Given the popularity of Google’s search engine3 and the large size of notices in the Report, it is reasonable to conclude that this percentage is representative of DMCA notices as a whole.

Google provides several examples of erroneous notices in its Report FAQ, and tech bloggers have had a field day reporting on these. But the fact remains that they represent a tiny sliver of the population of notices received. Among the noncomplying notices were also some made in apparent bad faith. These are never acceptable, but the number of them among total notices seems reasonable and does not indicate any systemic abuse. The level of “inaccurate or unjustified” requests reported by Google is in line with low-merit claims in other areas of the law — for example, a Harvard School of Public Health study found that 3% of medical malpractice lawsuits involved “no adverse outcomes from medical care.” And, it should be noted, the DMCA provides penalties for making misrepresentations on DMCA notices, penalties that have had negative consequences on several copyright owners — including some claims that copyright skeptics hold up as examples of copyright enforcement abuse.4

The Google Transparency Report reveals that the bogeyman of abusive copyright enforcement is nowhere near as frightening as copyright skeptics have repeatedly portrayed it to be. This is something that should be kept in mind the next time policymakers address the issue of protecting creator’s rights online.

Footnotes

  1. A few examples: The EFF has said, “We’ve seen that power abused time and again.” How PIPA and SOPA Violate White House Principles Supporting Free Speech and Innovation (Jan. 16, 2012); Rebecca MacKinnon and Ivan Sigal warned, “even existing copyright law is abused in attempts to stifle criticism and public debate” Online piracy laws must preserve Web freedom, CNN (Dec. 14, 2011); according to Mike Linksvayer of Creative Commons, “The DMCA was decried by advocates of free speech and the Internet, and has over past 13 years had many harmful effects.” Urgent: Stop [U.S.] American censorship of the Internet, (Nov. 11, 2011). []
  2. Other examples include: NetCoalition, a lobbyist group for Google, Facebook, and Yahoo, warned the bills have a “great potential for abuse by rights holders”; Rebecca MacKinnon of the New America Foundation stated, “Abuses under existing American law serve as troubling predictors for the kinds of abuse by private actors that the House bill would make possible.” Stop the Great Firewall of America, NY Times (Nov. 15, 2011); Julian Sanchez at TechDirt wrote, “This would be more convincing if the content industries weren’t so clearly continuing their long, proud tradition of making aggressive and overbroad copyright claims that would impede speech and innovation.” How SOPA Will be (Ab)Used (Dec. 19, 2011); Mike Loukides of O’Reilly Radar wrote, “there’s already a very lengthy history of copyright abuse by actors ranging from outright trolls such as Righthaven to supposedly reputable movie studios and record labels,” From SOPA to speech: Seven tech trends to monitor (Jan. 19, 2012); these and other claims can be summed up by the question asked by Alex Wexelblat on Copyfight: “It seems to me that the process is broken and people are not following the laws-as-written. How about we focus on fixing what’s on the books and in operation already before we go passing more new laws and further restrictions?” []
  3. According to Search Engine Watch, Google commanded two-thirds of the US market for internet search in February 2012. []
  4. For example, Adam Savage mentions a 2007 DMCA notice sent by Uri Gellar as an example of the kind of abuse that could “destroy the internet as we know it.” Gellar, however, ended up settling a subsequent lawsuit alleging misrepresentation for an undisclosed monetary amount and a court order to freely license the video footage that was the subject of the claim. []

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3 Things I Learned When My Site’s Traffic Increased 25,000% in One Day — Self-published comics artist Lars Martinson reports on the results of blowing up on Reddit. 48,000 extra visitors led to 23 e-book sales.

Elliott v Google complaint — Is “Google” at risk of becoming generic? An individual had registered several domain names that included the word “google” in them. Google won a domain name dispute against the individual, so he has now filed a complaint in federal court seeking to have Google’s trademark cancelled, arguing that the term is generic. The claim is not entirely frivolous — here’s a 2006 article pondering the same issue. Also see the Wikipedia entry on google (verb).

It’s not the song, Stupid, it’s the right — Filmmaker David Newhoff on the reaction to the Supreme Court declining to hear Joel Tenenbaum’s latest appeal: “What the children of the digital age need to learn as they are now entering the world of grown-ups is that it’s not the song or the movie or the book they’re stealing, but the rights of the creator.  When a few million college kids copy and share a digital file of a creative work, they believe this is not stealing because 1) they’re focused on the file itself; and 2) they’re focused on what they want.  And it is always the folly of youth to confuse desire with rights while failing to recognize, to paraphrase Kant, that their rights end when they infringe on the rights of another.”

Amazon bans Kindle Store spam (finally) — Amazon appears to have a new policy of not accepting so-called “private-label rights content” and undifferentiated public domain content. Good move.

PA criticises ‘tawdry theft’ of copyright — Publishers Association chief executive Richard Mollet had strong words for organizations such as the Open Rights Group, saying they have “the temerity to appropriate the language of freedom of expression as a cloak for their tawdry theft” in a “a grotesque attempt to draw moral equivalence between stealing someone’s work and the struggle for political representation.”

It’s Broken: Google Is Now Fielding 300,000 Takedown Requests a Week… — Google released data on DMCA takedown notices it receives for its search engine this week. Paul Resnikoff at Digital Music News asks, “At what point do we admit that the DMCA just isn’t working? That diligent DMCA takedowns are great news for companies like Google, and a horrible cat-and-mouse reality for content owners?”

Op-ed: New digital music licenses good for fans, entrepreneurs — Cary Sherman, David Israelite, and Lee Knife announce new, easy to use “mechanical licenses” for five digital business models. Great news for artists, entrepreneurs, and fans.

New Study Confirms Benefits of Intellectual Property to State Economies — Creative America reports on a new study from the US Chamber of Commerce that breaks down the positive impact of IP state by state.

“Your Horses Seem to be Winning”: The European Commission’s Antitrust Case Against Google Matters to Artists and Songwriters — Chris Castle notes: “For artists, these cases are important because the central theme boils down to this:  If Google just offered search and sold its Adwords and Adsense products, the fact that the company had achieved at least a dominant position if not a monopoly over search on the Internet would not necessarily be bad.  It’s not illegal to be a monopolist. The harm comes with the almost inevitable hubris accompanying a monopoly position and the abuse of that monopoly position in one business line (or ‘vertical’) to extend the monopoly into other verticals.  This is particularly true when the monopoly profits from one vertical are used by the monopolist to subsidize another firm wholly owned by the monopolist that extends the monopoly to another vertical.”

GUEST POST: Enforcing Copyright is a Win for Both U.S. Media and the World’s Creative Upstarts — Prof. Mark F. Schultz talks about the importance of trade agreements like the TPP. They benefit not only US creators, but also its trading partners. Schultz points out especially the “Korean Wave” and Nollywood.

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“I’m totally against piracy. It’s makes it very difficult for micro-budget filmmakers to make a living.” — Eduardo Sánchez, drector Blair Witch Project and Lovely Molly.

IMAGiNE Member Pleads Guilty to Criminal Copyright Infringement — One of the four members of the BitTorrent group plead guilty as part of a plea bargain to one count of conspiracy to commit criminal copyright infringement. The four members are alleged to have reproduced and distributed “tens of thousands of illegal copies of copyrighted works.” Still awaiting statements in support of this case from the EFF and Public Knowledge. In 2002, EFF attorney Fred von Lohmann (now senior copyright counsel at Google), said “a few targeted lawsuits [against P2P pirates] would get the message across.” Also that year, Public Knowledge president Gigi Sohn testified to Congress that “An industry-initiated lawsuit against a large-scale infringer could also have the benefit of serving as a deterrent to other bad actors. As we have seen in other contexts, specifically targeted lawsuits and other legal action can have a deterrent effect, and also educate the public as to what is legal.”

A context for innovation — Faza says: “As it happens, we live in an age of fascination with the internet and computers in general. Almost anything to do with the internet is subject to ‘gosh, wow’ media coverage, governments worldwide are hell-bent on fostering ‘digital development’ and there’s a whole lot of money to be made from the unlikeliest of activities. It is therefore unsurprising that innovators are drawn to this sphere, given how it looks like anything with the words ‘social’ or ‘cloud’ guarantees instant funding, media-swooning and dinners at the White House (okay, maybe not that last bit, unless you’ve already made a shedload of money). That these innovations may not actually improve anybody’s life very much (with the exception of the founders and the VCs that back them) tends to escape notice.”

The Human Rights of Artists — Important article from Chris Castle over at The Trichordist. Castle examines the undermining of artists’ human rights by tech companies and their soft lobbyists and the failure of governments to protect these rights.

In Plain English: Cambridge University Press v. Brecker — Copyright Alliance legal intern Joan Blazich explains this week’s court opinion in the lawsuit between major academic publishers and Georgia State University over the college’s e-reverse system. A great introduction to the decision.

“Say It Ain’t So, Joe, Again, and Again, and Again …”: A Legacy of Continued Bad Behavior at Google — Eric Clemons lays out the case against Google’s current governance structure. “In fairness, no one could be trusted or should be trusted with so much power. We did not trust AT&T with this much power in 1913 when it controlled the vital telecommunications industry in the United States. And we cannot today trust Google to be the arbiter of its own behavior when it controls so much of our access to the Internet. “

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Continuing from Tuesday’s post, below are some more common myths about copyright from the Founding period of the US. There’s a good deal of overlap between many of these, so I will try to limit discussion here to new points to avoid repetition.

Copyright was originally created as a utilitarian law.1

It is generally stated that copyright in the US (and other Anglo countries) is based on utilitarianism while copyright in Continental countries is based on natural or moral rights.2 But this claim goes further: the utilitarian justification for US copyright is explicitly contained in the text of the Copyright Clause, and natural rights or property talk has no place in the copyright policy arena. In his book Moral Panics and the Copyright Wars, William Patry has even gone as far as to say that the US Supreme Court actually declared the Lockean justification for copyright unconstitutional.3

In my earlier post, I showed that there is plenty of evidence that the Founders thought of copyright in a natural rights context or as property. Additional evidence reinforces that point.

The state statutes and the first federal Copyright Act were heavily influenced by England’s Statute of Anne, both in substance and, in many cases, the actual language.4 But it’s the differences between the first Copyright Act and these earlier statutes that demonstrate the Founders were thinking of copyright as a natural right at least as much as a utilitarian law.

Most notably, the Statute of Anne provided that third parties could bring a complaint if the price of any book was “High and Unreasonable”, giving the government the power to set a reasonable compulsory price. Five of the States that passed copyright statutes — Connecticut, Georgia, New York, North Carolina, and South Carolina — adopted similar provisions. These provisions are decidedly utilitarian; Georgia, for example, stated in the beginning of its Act that “the principles of natural equity and justice, require that every author should be secured in receiving the profits that may arise from the sale of his works,” but later noted that “it is equally necessary for the encouragement of learning that the inhabitants of this State be furnished useful books &c. at reasonable prices.”

The Copyright Act of 1790, however, did not include any such provision.

The utilitarian justification for copyright was present at this time, but the evidence doesn’t suggest that it was anywhere near the “clear” or “explicit” basis for early US copyright law that some suggest.5

The Founders were suspicious of monopolies, including copyright.6

Schwartz and Treanor do an excellent job of examining this claim in their paper Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property. They note that this broad suspicion of monopolies applied to the Founders fails under scrutiny. Those who make this claim focus on only “one group of Founders to the exclusion of other groups,” leading to an inaccurate historical picture that presents the debate over monopolies “as one pitting Thomas Jefferson and George Mason (both deeply opposed to the creation of government monopolies) against James Madison (with his reluctant acceptance of a very limited class of monopolies)”, wholly ignoring those Founders who would become Federalists and others who “believed monopolies could advance the commonweal.”

Schwartz and Treanor conclude:

This is a one-sided history; it leaves out the other political party, with its very different view about monopolies. It would be like a study of modern American views on tax policy or abortion that saw the gamut of differences as running from Trent Lott to George W. Bush and ending there.

What makes this reliance on those Founders who expressed opposition to monopolies especially shaky is that, in the end, the Constitution and Bill of Rights did not expressly prohibit monopolies. This, despite Jefferson privately telling Madison such a provision should be added to the Constitution,7 Mason refusing to support ratification because Congress was not restricted from granting them,8 and four states proposing Amendments to that effect during ratification.9

And even accepting a certain level of aversion to monopolies, there appears to be a well-established distinction between general commercial monopolies — exclusive government grants to engage in existing trades and enterprises — and the “monopolies” recognized for inventors and authors.

Nearly a century and a half before the Bill of Rights, in 1641, the Massachusetts General Court established the Body of Liberties, “the first legal code established by European colonists in New England.” Among its provisions: “No monopolies shall be granted or allowed amongst us, but of such new Inventions that are profitable to the Countrie, and that for a short time.” A similar law was passed by Connecticut in 1672: “That there shall be no Monopolies granted or allowed amongst us, but of such new Inventions as shall be judged profitable for the Country, and that for such time as the General Court shall judge meet.”

At least one supporter of general monopolies sought to persuade of their benefit by making a favorable comparison to copyrights and patents. American pastor Nicholas Collin, writing in response to those amendments offered by the four states to limit monopolies, noted that though they are “in general pernicious”, “exceptions must be admitted.”10 Collin spoke of the “risk and expense” that a company of merchants undertook to establish a trade in new and remote markets, and the benefit to the public that would result from an exclusive grant to such merchants. “A temporary monopoly of this kind,” said Collin, “may be vindicated upon the same principles upon which a like monopoly of a new machine is granted to its inventor, and that of a new book to its author.”

Perhaps the strongest distinction was made by future Supreme Court Justice James Iredell, who, writing as “Marcus,” printed his pamphlet on “Answers to Mr. Mason’s Objections” in January, 1788.11 Iredell responded to Mason’s claim that the Necessary and Proper Clause allowed Congress to grant trade monopolies, stating that no language in the Constitution could allow such power. Iredell saved his sharpest rebuke for this footnote:

One of the powers given to Congress is, “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” I am convinced Mr. Mason did not mean to refer to this clause, he is a gentleman of too much taste and knowledge himself to wish to have our government established upon such principles of barbarism as to be able to afford no encouragement to genius.

Footnotes

  1. Berin Szoka, Scott Cleland Abandons his Regulatory Skepticism, Misunderstands the Copyright Clause, Technology Liberation Front (Nov. 3, 2011): “if the the Copyright clause is ‘clearly’ anything, it is utilitarian”; Christopher Sprigman, Copyright and the Rule of Reason, 7 Journal on Telecommunications and High Technology Law 317 (2009): “Copyright is sometimes justified as the appropriate reward for an author’s creative labor. And copyright is also sometimes justified as a way that we acknowledge an author’s strong interest in a creation that reflects and embodies his or her personality. But the dominant justification for copyright, at least in the United States, is explicitly utilitarian. Congress’s power to create patent and copyright laws is provided for explicitly in our Constitution, and—uniquely among the provisions describing Congress’s powers—the grant contains a purpose clause that sets out an explicitly utilitarian rationale. Congress is given the power to pass patent and copyright laws ‘[t]o promote the Progress of Science and useful Arts.’” []
  2. See Intellectual Property (Stanford Encyclopedia of Philosophy) and Philosophy of copyright (Wikipedia). []
  3. Patry, Moral Panics, pg. 66 (2008). How the Supreme Court can declare a philosophical rationale for a law unconstitutional is beyond me. []
  4. See Oren Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Technology Law Journal 1427 (2010). []
  5. See also Patrick Cronin, The Historical Origins of the Conflict Between Copyright and the First Amendment, 35 Columbia Journal of Law and the Arts 221, 225-26 (2012), “The Copyright Clause did not solely embody one particular theory explaining why authors should be entitled to exclusive rights to their writings… the founding generation was ambivalent about what theory supported copyright”; Richard A. Spinello and Maria Bottis, A Defense of Intellectual Property Rights, pg. 39 (2009): “The currently dominant American intellectual property doctrine, that copyright and right to an invention are necessary because they function as a mechanism supplying the necessary incentives to authors and inventors so that they produce, is not easy to detect as such in the major accepted historical sources of common and civil copyright law”; Jane Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tulane Law Review 991 (1990). []
  6. Lewis Hyde, How to Reform Copyright (Oct. 9, 2011): “The founding fathers considered copyright a ‘monopoly privilege’ and, as Madison later wrote, ‘Monopolies … ought to be granted with caution … .’”; Stephen Kinsella, How to Slow Economic Progress (June 1, 2011): “the American founders… were nervous about monopoly privilege.”; Lydia Pallas Loren, The Purpose of Copyright (2000): “The framers of the United States Constitution, suspicious of all monopolies to begin with, knew the history of the copyright as a tool of censorship and press control.” []
  7. Thomas Jefferson, letter to James Madison (Aug. 28, 1789): “For instance, the following alterations and additions would have pleased me… Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding ——— years, but for no longer term, and no other purpose.” []
  8. Objections of the Hon. George Mason, one of the Delegates from Virginia in the Late Continental Convention, to the Proposed Federal Constitution; Assigned as His Reasons for not Signing the Same (Oct. 1787): “Under their own construction of the general clause at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their power as far as they shall think proper.” []
  9. Massachusetts (February 6, 1788), New Hampshire (June 21, 1788), and North Carolina (November 21, 1789) sought amendments that Congress “erect no Company of Merchants with exclusive advantages of commerce.” New York (June 17, 1788) passed a resolution when it ratified stating “that nothing in the said Constitution contained shall be construed to authorize Congress to grant monopolies, or erect any company with exclusive advantages of commerce.” []
  10. Nicholas Collin, Remarks on the amendments to the federal constitution, number X (Philadelphia, Nov. 1, 1788). []
  11. Reprinted by Griffith John McRee in Life and correspondence of James Iredell, vol. 2, pg. 186 (1863). []

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