I was reviewing some of my old Slashdot posts, and I came across some interesting arguments from June of this year that, it’s interesting to note, my own opinions sway slightly from.
Part of this is my being honest: I got a C&D (Cease And Desist) from Universal a month or so after I wrote these comments. I’d tried out a program called “eMule” (apparently a clone of another program called “eDonkey”), got myself a username, and went out hunting for what sort of copyright-infringing stuff I could download. Along with the usual assortment of cracked software, mp3’s, and pornographic crap that’s floating around that network, there is also a large assortment of movies.
Including one called “The Hulk”.
I’ve seen it in the theater, and I’ve seen the version that was trading on eMule. They BOTH stink. I’m not joking, it’s just a really bad movie. I loved the TV show, and I had a few of the comics as a teenager. It just didn’t work for me.
But anyway, I decided to download it. I left up eMule overnight, came by the next morning to see that it was all transferred, turned off eMule, burned the two video CD’s on my CD burner, and watched the first CD. Other than the fact I was watching a really crappy camcorder version of the movie, it looked pretty much the same as “The Hulk” is seen in theaters. There were some editing and post-production things that changed, but by and large it was the same movie. I thought nothing of it, really, blew away the files from my hard drive, stuck the two copies of The Hulk on my CDR spool, and went about my business. eMule sat, forlorn and forgotten, on my hard drive.
About three weeks later, I received a notice from my DSL provider that Universal Studios had sent them a cease & desist order, and that my identity could be requested and would have to be provided, without even a subpoena from a court, due to the Digital Milennium Copyright Act.
BUSTED.
I felt sick. Literally. I quickly responded to the message with a cryptic “The offending material has been long since removed” (and that was backed up by Universal, they had only found it on the network one night) “and the offender has been lectured”.
Never mind that it was me lecturing myself on getting caught!
Anyway, my opinion on copyright has been swayed a bit since I wrote the original article, mostly due to that C&D experience. I still value copyright, and favor its limitation, but also seriously think the system needs massive evaluation that incorporates an understanding of the existence of easy duplication of any copyrighted work.
At the time the Constitution was written, duplicating a copyrighted work was an enormous investment of time and money. Today, to do the same can often be as simple as a cut & paste. The Digital Millenium Copyright Act was an attempt to address these concerns, but it was done so with little concern for the legitimate file-trading of individuals, and no foresight as to enormous peer-to-peer networks and the role of fair use.
I don’t know that I’m qualified to answer the questions, either. But I feel an allegory coming on:
When I was a kid, I remember sitting next to my radio and listening to songs for hours on end. Sometimes I would read a book, but quite often I could just be found chilling out to the tunes. From time to time, I’d want to make a “collection” for a friend, so I’d put a trusty cassette into the deck, and patiently wait for the announcer to tell me that certain songs were about to be played. The advent of dual-cassette tape decks made this even better and easier. My friends and I used to trade these, often interspersed with our own comments and banter, as a show of affection or joking around.
This is perfectly normal, natural behavior. If we didn’t have recordings, we’d probably have just sung songs that we heard to one another.
How do you handle this same altruistic behavior, the desire to share, in a situation where millions of people are doing the sharing, and you have no personal relationship with the one doing the sharing?
I’m not sure.
But I am sure of one thing:
Telling them they are criminals for sharing, and sending threatening letters to inspire fear in hopes they’ll do what the copyright holder wants, is *not* the solution. It’s a stopgap, inhumane method of criminalizing social human behavior. To outlaw the sharing of ideas and art without a cover charge, when the successful history of our race built on intuitive, imitative behavior, is to outlaw much of what makes us an human.
What a shame.
Afterword: I think the ultimate solution is probably going to be a ‘cover charge’ of some sort for participation in activities which lead to significant copyright infringement. Much as buying blank music CD’s carries a tariff paid directly to the Recording Industry Association Of America, if you participate in a legal peer-to-peer network you’re going to be required to pay a tariff so that those people who’s works are infringed may be compensated. How do you enforce that on a global scale, though? That’ll probably take someone smarter than me to figure out.
The #1 U.S. export is intelle
The #1 U.S. export is intellectual property. Something like $90B a year. The government will do everything in its power to protect the sanctity of this industry, both domestic and internationally. This means creating laws that make infringement a criminal offense, punishable by jail. This means creating laws that allow copyright owners to pursue, protect, and prosecute.
I think that piracy exists in inefficient markets. People steal when markets don’t support an optimal exhange point of supply price point to demand. I think that in any market, whether it’s entertainment, apparel, or food, piracy manifests when people have the access, feasibility, time, and cost motive to steal. Social and criminal consequence has never proven itself a deterrent of piracy.
As far as music is concerned, only in the last 100 years has selling sound recordings become a big business. Fact is, live performance and merchandise is the bread. The most successful music acts, commercially speaking, in the last 25 years were groups that gave away music and allowed their fan base to trade.
Bottom line — if you’re going to protect copyrightten material anymore, you have to go after the big boys that are enabling the swapping. Forget the cease-and-desist letter, you terminate the account of the user and slash their online credit, forcing people to sign up for service somewhere else. If you committed insurance fraud, you think another insurance company would extend you a policy?
Sort of rambling here…
BTW — that tariff on blank CDs is miniscule because it can’t be proven that all blank CDs are used for illicit music sharing.
Criminal Offense…
If I understand correctly, copyright infringement is a crime (not a tort) if the “value” of the goods infringed is greater than $6,000, and the violation applies only to the distributor of those goods (the one who infringed copyright), and not the purchaser. Normally, this goes into the “infringer bilked purchaser for fake goods” category, but in the case of peer-to-peer apps, like eMule/eDonkey, if you download the material you are required to share it while downloading. It’s an interesting anti-leech algorithm. There are ways to get around it, but the moment you do, you totally screw over your download bandwidth.
Once you’re “sharing” a file to the world, though, the one who’s copyright has been infringed can pretty much name any figure in the world for damages. There’s no way of knowing how many copies you distributed, without constant monitoring of the outbound data streams.
I have a problem with the term “intellectual property”, though; it implies that ideas have the same limitations as physical property. I prefer to refer specifically to copyrights, trademarks, patents, and trade secrets, which all are very differently handled on the books and in the courts. For instance, a copyright is still valid even if undefended, while a trademark is not. A patent can be inviolated by a prior art search (even if one is a licensee of a related patent), yet one can copyright a “performance” of a work, without owning copyright on the original work itself.
But I digress.
Copyright owners are required to be the ones to initiate activity against infringers. There is far too large a corpus of copyrighted materials to do otherwise. However, the government can get involved as a prosecutor in those cases involving sums greater than $6,000 — which, in the case of online file trading, is an impossible number to quantify so it really works out they can get involved at-will, but generally stay out. But it already is punishable by jail time, and generally fighting an infringement charge means you pay legal fees if you lose, plus damages. I know of a few people who’ve tried it, and even if the claim is bogus it’s an expensive ordeal.
Although once again we disagree on terminology (copyright infringement is not stealing — it’s infringing copyright, which is its own thing and treated so by the courts), your premise seems sound. In this case, because there is zero “intrinsic value” to, for instance, sound recordings, the price point tends to go toward that way, until it reaches the point at which people decide, on balance, it’s easier or less risky to proceed in a legitimate way. For instance, it’s far, far easier for me to fire up, say, Kazaa (although I have no P2P apps installed on my PC at the moment) and search for an old Kansas tune where all I remember is the words “from home” in the chorus, than it is for me to run down to the music store and do the same thing. Chances are good, too, the music store doesn’t carry the exact old album I’m looking for.
All things being equal, people tend to act in a way that does not infringe the rights of others. If legitimate online distribution methods were as convenient, (almost as) cheap, and faster than existing alternatives, most people would use it. Of course, it would be nice if motorcars serviced themselves, too.
Yep. As a musician, I’ve resigned myself to the fact that, when it comes to my music, I am, in fact, a waiter. I live for tips. At the moment, I’m busy in my recording studio finalizing the sounds for my album, but at the same time I realize I need to translate some of these performaces to a live venue if I really want to make money at it. I intend to make my music available freely online (and am already doing so), as well as selling CD’s for those who wish to give me a “tip” by buying one.
There is no tariff on data CDRs in the U.S. There is one on music CD’s, although I’m not certain what the exact value is. In Canada, there is no arbitrary distinction between types (since there’s no difference in format.
I think there is a tarriff on
I think there is a tarriff on blank CDRs?
There was definitely a tarriff on DATs but those babies are kind of outdated.
“I have a problem with the te
“I have a problem with the term “intellectual property”, though; it implies that ideas have the same limitations as physical property.”
Let’s clarify something. Ideas are not protectable under copyright law. You cannot copyright an idea. There is a famous dissent by some Supreme about how ideas are like flames in a candle, and we cannot prevent the passing of the flame of knowledge.
Intellectual property, however, is the manifestation of an idea into some tangible form of medium, the result of intellectual and creative labor. Infringement then IS treated like a tort. IP falls under the tort branch of the law.
Jefferson
It’s even older than the Supremes; try Thomas Jefferson 🙂
So, I agree with Jefferson. Copyrighted works are an “invention”, and without copyright legislation to prevent their use, and BMI/ASCAP-type organizations vigorously defending them, it’s just not normal to think that imitating somebody else is morally wrong. I’m thinking specifically of live performance of copyrighted works here (as Jefferson might have considered), not duplication of identical works over the Internet at the moment 🙂
I’d have to disagree on your interpretation of Intellectual Property. As far as the copyright form of Intellectual Property goes, you are correct that you copyright a medium, such as printed word, audio of some form, or audio/visual, such as a movie. However, the reason I object to the term “IP” is because it’s so vague.
See, trademarks are considered “intellectual property”. They must be defended in court in order to be maintained. A trademark can be a symbol, a word, or even a particular way of pronouncing something. It is a mark you have registered in some form with the patent & trademark office. You register it on a medium, of course, but enforcement it medium-independent.
Similarly, patents have nothing but words and pictures describing an invention or business process (ugh, I hate that they allow that now) that has simply been described on paper. The invention may not actually exist, but because they’ve patented the idea, they have a lock on it. Do a search on Google for “one click amazon” and see what that brouhaha is all about. Amazon describes an idea — storing information about someone as a cookie on their PC that can be retrieved so they can check out in a single click — and then proceeds to use it in a barratrous form against Barnes & Noble.
Now, what you said was the “ideas are not protectable under copyright law” — that’s correct. But you followed that up with “Intellectual Property … [is] some tangible form of medium.” Trademarks, trade secret legislation, and patents allow protection of an idea. This is why I object to the use of the term “Intellectual Property” — it implies a consensus about what such things are, without identifying them. If you have a particular thing you’re talking about (copyright, for instance,) call it copyright — not “intellectual property”.
Doing my little part to educate humanity about an issue dear to my heart that few care about…
Educate humanity? 🙂
Firs
Educate humanity? 🙂
First off, trademarks and patents aren’t ideas. Like a copyright, they have to be rendered into tangible form. T and P have more credibility as tangible forms than some things that are eligible for copyrights, like dance moves.
I think I understand what your argument is about. You have a problem with the use of the IP as a moniker to reference everything that currently falls within the Big 3 of the IP family: copyright, trademark, and patent.
IP isn’t a vague reference. It refers to the tangible product of intellectual output, requiring a modicum of creativity, that is eligible for receiving court protection as a property, able to injure and to be injured. Because if I’m reading you correctly, you don’t think that certain mundane and banal inventions, service marks, etc. are worthy of receiving “intellectual property” status. The federal requirements for receiving intellectual property protection are lax. You can get a copyright or trademark or patent for some lame creation. But it’s not the LOC’s or PTO’s job to deny every application. Whether it’s a dance move, busisness process, etc. it all falls under the same requirements, and I write again, the tangible product of intellectual output, requiring a modicum of creativity, that is eligible for receiving court protection as a property, able to injure and to be injured. Intellectual Property.
Now the application and eligibility rules are obviously different between the Big 3 but they all fall under the same branch of thought. I don’t find the term vague.
Now, my fine amigo, you kvetch about the use of that term, but yet you haven’t give me an alternative to ponder. So let me help you out 🙂
I agree with you that some things that receive protection opr recognition as “IP” are pretty lame. The Amazon deal isn’t half as bad as some other ludicrous concepts, like the small music firm that succeeded in a patent for music downloads (what a joke). So here’s the important concept — infringement doesn’t occur unless the court says that an infringement has occurred. When I was doing mock cases, the first thing I always did was apply the Invalidate the Eligibility routine. Fine, the respondent has got themselves a little trademark seal or patent certificate. Well, let’s invalidate that claim, because it doesn’t matter if some 22-year-old intern sitting in the PTO says, it matter what a court of law says. None of it is “property” until you assert and win in court.
Modicum of creativity. Non-obvious invention. The trigger words for Intellectual Property. And it doesn’t matter whether it’s some short poem, process on a back of a napkin, swoosh on a sneaker, or identifying sound for movie special effect (Lucasfilms), it’s all called Intellectual Property.
But it really doesn’t become “property” until defended or asserted in court, no matter which branch of the Big you’re coming from.
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