Rather Than Mocking Confusion Over Copyright Law, IP Lawyers Should Look At Fixing It

from the 3.4-people-out-of-4-think-so dept

Mon, Feb 2nd 2009 5:20am — Mike Masnick

Over the past few years, around Superbowl time, there have been various articles about the NFL threatening groups (often churches) for potentially violating copyright law by having a "public performance" of the Superbowl on a TV greater than 55" inches. This year, we didn't see much of that, but there was an odd article about University of Tampa students being told that they couldn't have more than 3.4 people watching the Superbowl in their dorms, or it risked being a public performance and violation of copyright law. This, of course, makes very little sense (not the least of which is the obvious question of how you have .4 of a person.

Not surprisingly, this has the IP lawyers out there mocking folks for being totally clueless on copyright law. Yes, yes, it's easy to mock -- especially when the whole 3.4 person issue seems to have been basically made up from nowhere. However, I'd argue that the problem is less with the University of Tampa than it is with what copyright law has become these days.

We hear so many stories of bizarre interpretations of copyright law, that it clearly seems perfectly reasonable to many, many people that copyright law might actually say that about 3.4 people representing a public performance. When churches are getting threatening letters and mechanics are being sued for playing music to loudly in the garage, it doesn't seem out of the realm of possibility. The problem is not with some clueless folks at the University of Tampa as it is with (a) our current copyright laws that have been patched and duct taped together over and over again that no non-lawyer can truly understand them, let alone abide by them and (b) other recent rulings on copyright law that have made it clear to people that the law is used to stop perfectly normal activities.

So, the IP lawyers can have fun mocking, but I'd suggest their time might be better spent working to fix copyright law so that people wouldn't even think this made sense.

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Filed Under: copyright, lawyers, public performance, superbowl
Companies: university of tampa

18 Comments

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Ima Fish, 2 Feb 2009 @ 6:12am

If any area of the law was simple, the lawyers in that area would be out of business. The more complex the area the more they're needed. And since lawyers are the ones writing the laws, it won't be fixed and simplified anytime soon.

Here's my solution for fixing copyright law, if anyone decides to finally do something about it:

15 year limit, no extension. No one else gets to ride on a single work's coattails their entire life (plus the life of their wife, kids, and grandchildren, etc.) Why should musicians or painters be treated any differently?

You should have to opt in to the copyright system, not opt out. Yes, back to the good old days when copyrighted works had to be so marked, plus it would have to be filed with the copyright office. (Yes, no more common law copyright protection.) If you want a government granted monopoly, you should have to work at least a little bit to get it. To put it another way, government granted monopolies should be very rare.

No sanctions/damages for non-profit copyright violations. Proof that an infringer is "for profit" is that the infringer directly garnered more than 50% of his or her income from infringing copyrights. By "directly" I mean by directly selling the copyrighted work, not earning advertising dollars on site that also infringes.

Absolutely no criminal enforcement of copyright of any kind. The government should grant the monopoly but should never be involved with the investigation and/or enforcement. Any evidence obtained by any governmental agency should be automatically barred from trial.

The infringer publicizing the copyrighted work which then benefits the copyright holder should be an affirmative defense. In other words, Prince should not be allowed to sue his fans for creating websites in his honor. This would also exonerate broadcast and net radio, as studies would clearly show that being played on the radio increases music sales.
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:Lobo Santo, 2 Feb 2009 @ 6:48am

Re:
Wow, that's alot of thought. Let's just kill the lawyers, it'll be easier.
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Anonymous Coward, 2 Feb 2009 @ 7:21am

But we have to protect Mickey...
Disney et.al. will never allow any solution that lets their old/ancient movies move into the public domain.

My solution is to have an optional system for extending copyright. After the copyright ends, then a company may extend the copyright for $10,000 per year adjusted for inflation.

Something that is still turning a profit would be worth paying up for. A company like Disney probably has quite a bit of work that isn't producing revenue. In that case the company would have to decide whether it wanted to spend $10,000 year per piece just out of corporate pride or some other non-economic issue.
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Anonymous Coward, 2 Feb 2009 @ 7:25am

Re:
I absolutely agree with revoking common law copyright protection. I would add that orphaned works should automatically enter the public domain after 5 years.
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Ima Fish, 2 Feb 2009 @ 7:43am

Re: Re:
"I would add that orphaned works should automatically enter the public domain after 5 years."

Good idea, except why make it 5 years? Why not one year?

And I forgot one thing, copyrights should end on the artists' death. As the purpose of copyright is to give financial incentive to artists, musicians, and authors, and because any incentive to act ends on upon one's death, copyrights should end accordingly.
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Ima Fish, 2 Feb 2009 @ 7:48am

"Disney et.al. will never allow any solution that lets their old/ancient movies move into the public domain."

My solution is to fix copyright, not make Disney's lawyers happy.

My solution is to have an optional system for extending copyright. After the copyright ends, then a company may extend the copyright for $10,000 per year adjusted for inflation.

And your solution would allow the rich and the status quo to maintain perpetual copyrights.

"Something that is still turning a profit would be worth paying up for."

The question is not whether an entity should decide to profit, it is whether the government should grant monopolies. I obviously think the government should only do so in very limited situations.

And even if Mickey went into the public domain, Disney could still profit off of it. Cinderella is in the public domain, but yet Disney has made a nice profit off of those movies, toys, etc.
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Dave Barnes, 2 Feb 2009 @ 7:51am

Uh, 0.4 is why
we have midgets.
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Marc J. Randazza, 2 Feb 2009 @ 9:31am

Copyright Fixes
I can agree that copyright law is a mess and it might need to be fixed. And, the performance issue may be a bit muddled in the middle -- but it is relatively clear at the edges. This was an example of such clarity, that no clarification of the copyright act would possibly have changed this story. This is the "hall monitor" mentality run amok.
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SuperSparky, 2 Feb 2009 @ 9:34am

Sometimes less is more
Once upon a time the copyright and patent laws were simple.

I have no objection to perpetual trademarks, like Mickey and such, as long as the entity is valid and not a "holding company", but perpetual copyright is stupid and doesn't benefit society as the original copyright laws were written to do.

It was the entertainment industry that got them changed to what they are now, and the software industry just added a few cherries to the whipped cream the entertainment industry created.

I agree, there needs to be a reasonable length of time. Fifteen years ought to be plenty, in my opinion.

Limiting copyright will actually encourage new development in all industries, as it prevents sitting on one-time successes.

As to Disney, the characters can be trademarked, but the movies need to be set free. Just keep making good movies and the profits will continue to come in.

I am a firm believer in the capitalist system. I loath a monopolistic or socialist system. Limited copyright would actually benefit a capitalist system by encouraging constant innovation and competition. No copyright would have a negative affect of not having an incentive to develop or innovate. Too much copyright actually restricts innovation.
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Mike (profile), 2 Feb 2009 @ 10:08am

Re: Copyright Fixes
I can agree that copyright law is a mess and it might need to be fixed. And, the performance issue may be a bit muddled in the middle -- but it is relatively clear at the edges. This was an example of such clarity, that no clarification of the copyright act would possibly have changed this story. This is the "hall monitor" mentality run amok.

It's not necessarily that it's confusion about the "Copyright Act." It's that thanks to actions over the last few years, the Copyright Industry has basically educated people on the idea that almost anything you think you should normally be able to do with content is potentially infringing.

This is the end result of that educational plan.
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Vincent Clement, 2 Feb 2009 @ 10:12am

Re: But we have to protect Mickey...
That is based on the incorrect assumption that when something becomes public domain that the original copyright holder can no longer make money from that content.

The patents on Aspirin and Tylenol expired years ago, yet both products continue to sell despite the availability of cheaper generics. How is that possible? Because Bayer and Tylenol have something the generics don't have - brand recognition.

Releasing old Disney movies into the public domain would mean that Disney would have to become innovative. And recently returning from my first trip to Disney World, there must be a few people at Disney who could add value to a good that is in the public domain.

$10,000 is chump change to Disney. It's probably cheaper then hiring lawyers and lobbyists to 'tweak' copyright law to their advantage.

But this isn't about profit. It's about advancing society.
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Anonymous Coward, 2 Feb 2009 @ 10:14am

Re:
I have a better idea: Get rid of copyright. Period.
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Kyle K., 2 Feb 2009 @ 3:04pm

But it's easier to mock than it is to fix.
I generally agree with the post, but "fixing" copyright law is not like turning a lightswitch from "reasonable" to "unreasonable." Every piece of copyright litigation is the subject of enormous lobbying, usually paid by large media, entertainment, and computer/web companies, and some unpaid by people like the EFF. In addition, the U.S. is a signatory to a number of treaties, such as the Berne Convention, that affects how much the U.S. can really change the law. Perhaps a simple media/P.R. campaign showing the "truly copyright stupid" helps more people understand the limits of copyright law a lot more easily than lobbying for substantive change in the Copyright Act.
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Kyle K., 2 Feb 2009 @ 3:09pm

Re: But we have to protect Mickey...
Sorry 7:21, but you seem to forget that MOST copyrighted works are not owned by huge corporations. They're owned by independent artists, or small businesses, or just your average joe. Maybe the sale of their work nets them $100 a year; maybe the small business is developing software code on a shoestring budget. Those folks can't afford a $10,000 fee, but would certainly CERTAINLY be hurt if they couldn't protect their expression from appropriation or piracy.
When many people think of copyright, they may think of the movie and music MAFIAA, but copyright protects us ALL.
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Kyle K., 2 Feb 2009 @ 3:15pm

Re: Sometimes less is more
Once upon a time the copyright and patent laws were simple. That's not true, Sparky. Excepting the laws and regulations especially created for the Internet (the DMCA, COPA, and the CDA for example) copyright has gotten simpler under today's laws. Back 70 years ago, if you didn't mark your work right, it went into the public domain. If you didn't renew your registration, it went into the public domain. If you couldn't prove the infringer had access (much harder to do in a pre-mass media world) you couldn't prove infringement. If you couldn't prove damages, you probably couldn't recover enough to make a suit worth it. The result truly was that artists' welfare were affected and much more reliant on the advice of counsel to jump through the hoops to protect their work. And patent law? Don't get me started with patent law. If patent law was ever "simpler", it's only because there were fewer inventions being invented and fewer technologies being developed, fewer inventors patenting ideas, and fewer conflicts.
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Anonymous Coward, 2 Feb 2009 @ 5:11pm

Re: But we have to protect small businesses...
Kyle K. wrote:

... MOST copyrighted works are not owned by huge corporations. They're owned by independent artists, or small businesses, or just your average joe. Maybe the sale of their work nets them $100 a year; maybe the small business is developing software code on a shoestring budget. Those folks can't afford a $10,000 fee, but would certainly CERTAINLY be hurt ...

If they’re not earning much, then they can’t be hurt much. QED.
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Anonymous Coward, 3 Feb 2009 @ 8:21am

It never occurred to me that pointing out errors pertaining to persons' reliance on "rumor mills" is to "mock" them. I guess I am mocking photographers who have erroneously been led to believe that taking a photo from public streets of the Empire State Building is a no-no because to do so would be copyright infringement when I inform them that such photos are perfectly legal.

I wonder what term would be used when Techdirt engages in much the same activity pertaining to economics? At least I do not tell photographers who have been misled by such "rumor mills" that they need to go back to Copyright 101.
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Adam, 29 May 2010 @ 7:29pm

@Kyle.k

In other words copyright was much simpler back in the day, for everyone else. now it is much simpler for artists and much more complicated for everyone else. sorry, but copyright isn't a right. it is a priviedge you gain by suspending everyone elses rights. if you want to gain that priviledge then you damn well should have to work for it and work to have it enforced for you. there is absolutely no reason why copyright should be granted automatically at the expense of the public and enforced at the expense of the public too. and those expenses are both in liberties and in cash.
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