Should Artist Intent Matter In Determining Fair Use?

Can The Public Be Heard On Copyright Issues?

from the one-hopes... dept

Fri, Jul 24th 2009 6:25am — Mike Masnick

When it comes to copyright law, it's no secret that politicians tend to listen almost entirely to lobbyists, and pay no attention at all to the feelings of the public. There are a few different reasons for this (and, certainly it depends on each politician). In some cases, it's basic corruption. You listen to the folks who fund your campaign, and the entertainment industry can be a major contributor to elections. However, I think a bigger issue is that many politicians really do believe that the industry representatives best represent the needs of cultural society. This might be because they get starstruck in meeting rockstars and movie stars that the entertainment industry occasionally parades around, or it might be because they just don't know where else to turn to on these issues -- and simply assume that "who would know better the impact of copyright than those who seem to rely on the system."

For years, a growing number of folks have worked hard to try to amplify the public's voice on these issues. They've been trying to make it clear that greater copyright isn't an unequivocal "good thing" and that it has many real and significant downsides as well. The internet has been an amazing tool in making this happen, but it's still not enough. In the US, for example, I can count on the fingers of one hand how many politicians actually recognize the downsides to over protection from copyright... and still have enough fingers to wag at the rest of our elected officials. The situation in Canada appears to be just slightly better, however. Michael Geist deserves a lot of the credit for that. He was the one who rallied the public the last few years when Canadian politicians tried to rush through draconian copyright changes to the system, pushed directly by US copyright interests.

While some Canadian politicians appear to have recognized some of the issues, that doesn't mean most still aren't under the false belief that more copyright is good, and what the industry reps claim is "good" is actually good for the public. So, as the Canadian gov't has begun a consultation over new copyright laws, Geist is trying to make sure that the public's voice is actually heard this time. He's launched a website called Speak Out On Copyright that tries to track the online discussion (from all over the internet) on copyright issues and help the public become much more involved in the consultation process. He's also kicked it off with his own response to the consultation, which is well worth a read.

It's still an uphill battle. The recording industry has said that they thought the bill that died last year, which so many had protested as being way too draconian, was actually too tame and did not go far enough. They've asked for the moon -- including anti-circumvention clauses, three strikes and copyright term extension. And most politicians will still hear their voice the loudest, and think that it's representative. But maybe, just maybe, the actual public -- the real people impacted by these things -- can get their voice heard in a way that has a real impact and prevents new laws that don't serve the public, don't encourage more creativity and serve only to prop-up and protect one industry's old and obsolete business model.

Is it enough to make a difference? The fact that it actually exists is already a difference. It may not stop those powerful, connected and well-funded lobbyists from pushing through bad legislation, but hopefully the voice of the public will actually at least play a role in what happens.

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Filed Under: canada, copyright, michael geist, public

37 Comments

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Perry K (profile), 24 Jul 2009 @ 6:57am

kudos to Dr. Geist
Michael Geist attended the recent CRTC hearings about "network management" and used twitter to keep people up to date on the 7 day proceedings. Great dedication to a free and clear Internet and to copyright reform. His site actually led me to find techdirt in the first place.
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PopeHilarius (profile), 24 Jul 2009 @ 6:59am

I don't think it's just that the industry funds campaigns. So did the tobacco industry, but prevailing social mores eventually overcame the industry's lobbying.

I think the real issue is that people don't care about copyright law because it affects them very little, and that I think people generally believe the story the entertainment industry has put out: infringement is theft, and copyright reformists are pirate-hippy-thieves. I'm surprised how many people I talk to that feel downloading music (for example) is stealing directly from the artist. I think outside of people who are interested in this topic, most people believe the industry's propaganda. A politician isn't going to take a stand on an issue his constituents either don't care at all about, or think is actually wrong.

I know what I'd like to see is some propaganda in other direction. Informative articles are one thing, but what we really need is posters on the subway that say "Why buy a CD- only X% goes to the artist" or whatever.

I'm a little off topic here- but the politicians bit resonates with me. I think it's more of a bottom-up problem.
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Anonymous Coward, 24 Jul 2009 @ 7:05am

Cant he public be heard...
No.

The public are morons.

If you gave them the option of free cars (or "free" healthcare) they'd jump at it too. The public wants everything for nothing and doesn't care what the consequences are until it's too late ("affordable" home loans, anyone?)..

This is why we elect people who supposedly have both the interests of the people *and* an eye for the future on their minds while making these decisions.

Mob rule is *not* the answer to anything other than "How can we destroy our country in the fastest most chaotic way possible?".
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Anonymous Coward, 24 Jul 2009 @ 7:27am

Re: Cant he public be heard...
The public are morons?

Let me guess, you're have a short circuit in the brain regarding "free" right now.
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Sean T Henry (profile), 24 Jul 2009 @ 7:40am

How about...
How about this. No lobbyist shall receive payment for his/her efforts the only reimbursement that may be receive is for travel expenses and 25% of rooming.
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:Lobo Santo (profile), 24 Jul 2009 @ 7:41am

Re: Cant he public be heard...
"The public are morons.'

Hello coward!

One of the things which allow us progress as a society is faith in your fellow man.
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Anonymous Coward, 24 Jul 2009 @ 8:01am

Re: Cant he public be heard...
"No.

The public are morons.

If you gave them the option of free cars (or "free" healthcare) they'd jump at it too. The public wants everything for nothing and doesn't care what the consequences are until it's too late ("affordable" home loans, anyone?)..

This is why we elect people who supposedly have both the interests of the people *and* an eye for the future on their minds while making these decisions.

Mob rule is *not* the answer to anything other than "How can we destroy our country in the fastest most chaotic way possible?"."

Your doing it wrong...
This post was not about mob rule, but about seeking input from the public that a politician represents to actually represent their best interests. Not just assuming they're all ignorant and completely ignoring them (a great way to get reelected...) while listening to lobbyists.
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CommonSense (profile), 24 Jul 2009 @ 8:01am

Re: Cant he public be heard...
That's just a really dumb comment. For starters, the public didn't ask for the "affordable" home loans you mention, the banking industry lobbied the government to lighten up the regulations so that they could lend more money and, this is the important part, make more profit. There was no public outcry for higher homeowner percentages, that was government and lobbyists. It's quite clear that not everyone is jumping at "free" healthcare, or else we'd have it already, and I'll bet that if the "free" car you offer was a GM or Ford, the majority of people would turn it down and go get a good car.

Mob rule is a bad idea in terms of running the country, yes, but letting the markets rule in a 'free' market capitalist economy IS the answer, not letting corporate giants and government control everything...
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Ian R (Fair Copyright Edmonton) (profile), 24 Jul 2009 @ 8:01am

The Canadian government has actually taken a lot of flak for the way they've organized the consultations. There are four private, invitation-only "round table" meetings, to which Fair Copyright groups (which consist of individually organized, independent groups across Canada) seem to have received a total of one invitation (which went to the Vancouver group). There are also two "townhall" meetings, which are taking place in Toronto and Montreal (both in the East). That said, at least there are consultations happening. While it is a rather serious inconvenience to have to fly across the country in order to try to make my voice heard, it is still better than no consultations at all.

My intention is to try to point out to the government the degree to which copyright issues are being used to erode consumers' property rights in the things they purchase, to a degree that makes the "anti-piracy" efforts seem like a false flag, with the true target being honest consumers.

I am also greatly concerned by the way DRM protections would effectively give copyright holders the power to make their own laws, generally to eliminate competitive forces.
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jjmsan (profile), 24 Jul 2009 @ 8:22am

Re: Cant he public be heard...
I am curious as to why "the public" should be morons who cannot make good decisions whereas "business" is all about nothing but the good of society. Have you missed the last few years where "business" managed to trash the economy by running an unsustainable economic model?
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TDR, 24 Jul 2009 @ 8:50am

Corporations need to be stripped of the rights of personhood, because that is where a lot of their power comes from. And all lobbyists (and all public organizations and businesses, actually) should be subject to a yearly audit by an independent organization with all the data freely available for anyone to see.
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LostSailor (profile), 24 Jul 2009 @ 8:53am

Effective Voices
It's not that the public can't be heard, but that there aren't enough effective, organized advocates for the public. And it's not that the "public" are morons, but that these are not issues that the vast majority of people are aware of or think about very often. Businesses are nearly always going to advocate for more protection because they see it as being in their best interest (and the best interest of their boards of directors and shareholders).

And a part of the problem is that the debate itself has become largely antagonistic and polarized. A lot of hyperbolic and angry talk, but not much communication.
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oxana (profile), 24 Jul 2009 @ 9:14am

Give copyright back to the authors
How many times it was said that Michael Jackson owned the music copyright to the Beatles songs? That's simply not true. This was about the publishing rights, not the performance of mechanical rights. How to tell the public?
It's much easier to get rid of collecting societies, recording companies and music publishers. Let us give copyright back to the authors and let them manage their own rights.
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Anonymous Coward, 24 Jul 2009 @ 9:14am

Re: Re: Cant he public be heard...
Clinton - FHA - Fanny May - Freddie Mac.

Use your google machine.
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Anonymous Coward, 24 Jul 2009 @ 9:18am

Re: Re: Cant he public be heard...
"Have you missed the last few years where "business" managed to trash the economy by running an unsustainable economic model?"

Have you missed the few years before that (mid 90's) where to avert a minor housing crash the Clinton administration created "affrodable" housing (high-risk loans) organizations and backed them with government money?

That was the unsustainable economic model. Backing high-risk loans with tax money? Yeah...that'll work.
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Anonymous Coward, 24 Jul 2009 @ 9:19am

Re: Give copyright back to the authors
"Let us give copyright back to the authors and let them manage their own rights."

...because they'd rather not spend all their time on financial accounting and more of it actually being...authors/composers/performers?
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Ed, 24 Jul 2009 @ 9:27am

People are morons, but not the way you mean.
People are morons, all people are, including those in the government. Given a complete picture of all the facts and issues, most people can make a reasonable decision on what is best for all concerned (given no personal interest). The problem is people don't bother to be informed. Neither do politicians. They also give much greater weight to emotional pleas, than any fact presented. How else can politicians vote on a bill, without reading it? They simply vote based on what someone who should "know" told them. Lobbyists just get their ear first, and tell them just enough to convince the politicians they have all the facts they need to decide the issue, no other input is required.

This is also why entertainment talking heads repeat incorrect "FACTS". They convince a segment of the population that these are genuine facts, rather than skewed impressions of facts, interpreted from a certain perspective. "It must be true, I read in the paper that..."
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Brian, 24 Jul 2009 @ 10:03am

Re: Cant he public be heard...
Morons? Not all of us, some are just sick of paying copyrights on the same media over and over.

I have owned some music on LP, 8 track, cassette, CD and iTunes. Some movies on VHS and DVD.

When will it end
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Dark Helmet (profile), 24 Jul 2009 @ 10:32am

Re:
"I don't think it's just that the industry funds campaigns. So did the tobacco industry, but prevailing social mores eventually overcame the industry's lobbying."

That's not accurate. The Tobacco Industry lobbied as long as it took to diversify their interests AWAY from Tobacco, and then gave up the game. Big Tobacco never lost, they just became Smaller Tobacco And Lots of Other Stuff Too.

I'm okay with the rest of your comment, just wanted to clear up that one misconception, particularly since you were surprised by the misconceptions of others. This Tobacco Got Their Ass Kicked misconception is an extremely common one.
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Anonymous Coward, 24 Jul 2009 @ 10:53am

This blog is more than enough proof that the public needs to be generally kept as far away from possible from these debates, because the public doesn't understand all of the issues at hand.

The public needs to be parts of groups which discuss ideas, which in turn send people up the ladder to larger collective groups, that in turn send a representative or two into these discussions. It gives a similar representation into the process as the other players in the game.

Think about music and music sales. Artists, writers, producers, engineers, label owners, shiny plastic disc makers, shiny plastic disc merchants, packaging makers, cover work artists, photographers, editors, and literally hundreds of other segements are all part of the industry as a whole. They all need to be at the table, and they have much more in play than the public does.

As someone mentioned before, the public also doesn't know what it wants, mostly because the general public has no clue of the implications of their desires or actions. Free Healthcare (come to Canada and pay our taxes, nothing is free!) is the current issue of the week. The general public doesn't understand the financial implications, not just from taxation but on how that might change the entire pay for service medical industry.

Asking the general public about copyright, and like Mike, they don't seem to have a clue what good it does, only how it somehow harms them (I can't copy the DVD I rent from blockbuster!). It's easy to bash something and slap it down when you aren't aware of the positive side of a process.

So bringing the public to the table would be like bringing most Techdirt readers to a social event. Most of them wouldn't fit in, and the vast majority would have no idea what to do or how to say anything other than "I like her boobs".
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Philip Hunt, 24 Jul 2009 @ 11:37am

Can The Public Be Heard On Copyright Issues? Yes, when they vote for the Pirate Party in large numbers.
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anymouse (profile), 24 Jul 2009 @ 11:46am

But where did the money go?
"Backing high-risk loans with tax money? Yeah...that'll work."

Actually on a small scale in special circumstances it probably would have worked, the problems is that as soon as the system was setup people started gaming the system to push as many high risk loans as they could thru (so that they could turn around and roll them into CDO's to resell to the next sucker).

At this point the system stopped being about helping out the needy with government backed loans, and became one of who can push the most crap (high risk loans and CDO's) through the system before it collapses. You can bet that the ones making the most profit knew that it WAS going to crash in a bad way, but they were making so much money doing nothing that they didn't care.
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Anonymous Coward, 24 Jul 2009 @ 11:58am

Re:
This blog is more than enough proof that the public needs to be generally kept as far away from possible from these debates, because the public doesn't understand all of the issues at hand.

I somewhat disagree.

As much as it seems desirable, legalism is not a valid business model for a 80-year old industry. You mention that the general public doesn't fully understand the financial implications. I tend to disagree. Once educated, they're a lot smarter than I think you let on. Point is, the internet has dramatically changed this.

I'm sure Mike mentioned Chris Anderson's book "Free" sometime in the past months. It provides an insightful roadmap to the idea of value-added sales and upselling. Perhaps you've heard of it?

A while back, Mike tried some chatroom things, and I would like to see him raise the bar, perhaps hosting some GoToMeetings and perhaps coordinate some of these things. I still remain unsure why Floor64 hasn't decided to take more of a leadership role in consulting to these companies or artists, as that seems to be an equitable venture of sorts. Mike would be a great resource as he seems to have a firm grasp of the situation, and has shown equitable alternatives thru leaning out the cost-heavy marketing and distribution process and application of experiments as CfW+RtB, and ensuring that the artists are able to be more involved in the businesses and brands they create.
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Eponymous Coward, 24 Jul 2009 @ 11:59am

Except for the unnecessary perjorative comment at the end, I wholly agree with #20. Just take a look at many of the comments in the "online discussion forum" on the consultation website...most are not very well informed or nuanced, and read like the comments section of a newspaper article on copyright.

This is how we're supposed to set public policy on in Canada? Mob rule? To hell with Canada's creative industries and $40+ billion in economic activity they generate every year, being able to do whatever I want with any form of media I've purchased (including sharing them online) is far more important.
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Valkor, 24 Jul 2009 @ 12:50pm

Re:
Of course corporations are people! If you prick them, do they not bleed? Oh, they don't? Nevermind.
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Anonymous Coward, 24 Jul 2009 @ 12:58pm

Re: Re:
It would be interesting to see workshops like this for artists, and that seems to be a need that could be addressed quickly and provide additional revenue stream.

As for the core idea of "Public" weighing in on copyright, it's a tricky subject. Some things such as copyright which, I tend to believe is unncessarily complicated to the layperson, (just as intended by Thomas Jefferson, right?) and may be a little too difficult to describe in this type of forum, especially with the copyright industry outreach PR people showing up.

This can be mitigated somewhat, if the discussion centers around 2 to 3 focused bulletpoints. Get beyond that, and I've noticed a high probability of Godwin's law or similar phenomenon, which can also become disruptive.
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oxana (profile), 24 Jul 2009 @ 1:28pm

Re: Re: Give copyright back to the authors
You are right. They just need a little help from their friends. Look at http://www.villamusicrights.com.
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Anonymous Coward, 24 Jul 2009 @ 1:55pm

Re:
You'd be surprised at how reasonable the general public is, judging by some of the more intelligent input coming in.

Michael Geist does a nice job of highlighting the reasonable requests. Just to state a few:

1) Reasonable alternatives to piracy. Hulu and Last.fm are used as examples (Canadians have no such services available). In other words, legal channels are desired, but existing media doesn't reflect the times.

2) The ability to "upgrade" your formats for free. I assume this means when it doesn't cost anyone to do so (AKA, upgrading DVD to Bluray disc bad, upgrading DVD to hi-def video file good).

3) No more lawsuits against individuals. Apparently a musician also supported this.

I mean, it's nice that you recommend shrugging of complaints from your customer base, handwaving them all as delusional fools. Good business practice that is, not appealing to your users.

At the very core of this debate is one very simple rule of thumb: Never try to tell the consumer what they should and shouldn't want.
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Dark Helmet (profile), 24 Jul 2009 @ 1:59pm

Re:
"This blog is more than enough proof that the public needs to be generally kept as far away from possible from these debates, because the public doesn't understand all of the issues at hand."

That's because the law is so complicated that only lawyers can claim to understand it. The idea of a legal system governing over a population that doesn't understand that system is ridiculous by nature and easily gamed by the people at the top of the pyramid. THAT'S the problem.
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Anonymous Coward, 24 Jul 2009 @ 2:01pm

Re:
So in a consumer based industry, appealing to the customers is stupid?

Wow. That's simply brilliant. I wonder how the automobile market would handle a strategy like that. Oh, wait...
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Anonymous Coward, 24 Jul 2009 @ 2:50pm

Re: Re: Re: Cant he public be heard...
Keyword there was Clinton, wasn't it? Not the public, but a politician? Shooting holes in the argument, right there.
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Bill, 24 Jul 2009 @ 3:30pm

The public doesn't care about copyright...
You might care... You're flunkies might care... The general public doesn't care.
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Mike Masnick (profile), 24 Jul 2009 @ 5:48pm

Re:
This is how we're supposed to set public policy on in Canada? Mob rule?

No one said that. I'm not sure why you would claim that. What we said is that the people who will have their rights taken away by copyright expansion *should* have a seat at the table. It's not mob rule, but their voice should be heard, and it's quite easy to weed out the intelligent comments from the moronic ones.

Why set up a strawman like "mob rule" when that's not the issue at all.

Instead, you'd rather that only those who benefit from copyright expansion get a word in?

To hell with Canada's creative industries and $40+ billion in economic activity they generate every year, being able to do whatever I want with any form of media I've purchased (including sharing them online) is far more important.

Whoa, double strawman. The whole point many of us have been making is that there's an awful lot of evidence that you get MORE creative output when you remove barriers. The "problem" is that it gets spread out among more players, so a few big businesses can't profit as much.

At the same time you respect user rights -- which are core to copyright in the first place.

Based on your reasoning we should ONLY have monopolies. There should be a sugar monopoly, because that creates a billion $ sugar industry. Who cares if people thing sugar should be affordable and based on a competitive market...

Please...
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Don't Copy That Floppy, 25 Jul 2009 @ 8:09am

Don't Copy That Floppy
To be fair, many of the participants are just kids who download movies and music for free. Many of them don't understand economics at all. That doesn't mean economics and the economy should rule the roost.

I think many of the contributors feel if they repeat themselves enough time, they might be legally allowed to do what they do. But lets be honest, when you consume music for free and movies for free w/o permission, or even worse, when you pay for it from a group who doesn't have permission (professional pirates, rapidshare, pirate bay, newzbins), you simply taking the work of someone else without compensating them. That has to be wrong when so many others are willing to give you their work and rights to their work. You're simply being disrespectful.

There's a lot of copyright changes which should happen and need to happen, but we're not going to see the mass acceptance of permission free distribution.
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Anonymous Coward, 25 Jul 2009 @ 10:59am

Re: Re:
"Based on your reasoning we should ONLY have monopolies. There should be a sugar monopoly, because that creates a billion $ sugar industry. Who cares if people thing sugar should be affordable and based on a competitive market..."

... and you have the guts to call other people's posts strawmen?

Geez. Come on Mike. There are plenty of shades of grey between your "free to everyone all the time" mentality and monopolies.

"The whole point many of us have been making is that there's an awful lot of evidence that you get MORE creative output when you remove barriers."

Mike, this isn't supported at all by the Canadian music industry. Before the CanCon rules, before tax credits for productions, etc, Canada had almost no home grown music industry at all. Without protectionist barriers, the Canadian music industry would probably still be a spec on the music map.

Your friend over at Nettwerk pretty much owe their entire existence to favorable CanCon rules, governemnt support, and collection companies making sure that artists get paid. All in a protectionist system that has allowed creativity to flow and grow.

Sometimes, the barriers help. It is very broad (and unsupported) concept that removing any barrier makes things better.
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Mike Masnick (profile), 26 Jul 2009 @ 1:59pm

Re: Re: Re:
Sometimes, the barriers help. It is very broad (and unsupported) concept that removing any barrier makes things better.

All of economic history shows otherwise. But, again, you're the same guy who couldn't figure out the difference between marginal cost and average cost, despite having it explained to you in quite clear language about 15 times, right?

Honestly, we've suggested it in the past, and you keep ignoring the suggestion, but you would make a lot more sense (and sound a lot more reasonable) if you took the time to understand fundamental economics.

To date, your response has basically been "I don't believe in economics because I don't like the result." I guess you don't believe in gravity either.
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Jake, 26 Jul 2009 @ 3:31pm

I don't think it's being heard that's necessarily the problem. It's being listened to, a fine but important distinction. It won't matter how many advocates of a dissenting viewpoint are given a chance to put their views forward if the Conclusions and Recommendations page of the final report has already been drafted.

Of course, politicians doing what they damn well feel like because making running the country is their job not ours is one of those things we all have to learn to live with.
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