My Comments To The USTR On Special 301 Report On Foreign Copyright Issues
from the let's-get-real dept
As you may or may not have heard, the USTR has been accepting public comments for its Special 301 report, which comes out every year in an attempt to name and shame countries that the USTR does not believe does enough to protect US copyrights abroad. Typically, this process is driven very much by the entertainment industry, to the extent that even people in the US copyright office have been known to roll their eyes about the legitimacy of the report. A lot of people have been incorrectly claiming that these comments are about ACTA, but they're not. The Special 301 report basically just tries to determine which countries the US should put more pressure on to "get with the program," diplomatically speaking, when it comes to copyright issues. In the past, it's been used to bully countries like Canada and Israel -- both of which have strong copyright that is very much in compliance with international obligations. This year, with the USTR opening up the comments process to anyone who had some thoughts, I figured I would submit my own thoughts on this particular issue. If you would like to submit your own comments, you can follow the instructions given by Public Knowledge. At that link you can also see PK's own "suggested" text, though I would highly recommend writing your own thoughts out, rather than stuffing the box with the same letter. For another letter, you can see what John Bennett submitted as well.Senior Director for Intellectual Property and
Innovation and Chair of the Special 301 Committee
Office of the United States Trade Representative
600 17th Street NW
Washington, DC 20508
Filed electronically via Regulations.gov
Dear Ms. Groves:
I write to you today as a long-term content creator, who makes my living off of my ability to continue to create content and receive remuneration for that activity. And yet, I am concerned about the state of US copyright law, and the fact that it does not serve my interests or the interests of the vast majority of content creators today. Despite being a professional content creator, I have purposely chosen not to make use of copyright law, because the way it is structured today actually hinders my own ability to profit from my content creation.
The central tenet of copyright law has been, "To promote the Progress of Science and useful Arts," and the mechanism for this is both copyright and patents, or more specifically "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Unfortunately, over the years, all too often we've lost sight of the beginning of that sentence, in the assumption that any increase in those "exclusive rights" must surely "promote the progress." And, yet, as we have expanded and stretched copyright law time and time again -- and almost never contracted it -- no one ever seems to ask for any actual evidence that stronger and lengthier copyright law leads to promoting more progress.
This is not a new concern. Thomas Macaulay famously argued in 1841 that we ought to be careful to only extend and expand copyright upon evidence that such an extension or expansion would, in fact, lead to greater incentives to create. Yet, to this day, our public policy has been to take it on faith that stricter copyright laws lead to greater incentives to create -- despite the lack of evidence to support this position. In fact, the evidence has suggested that as technology has decreased the ability of copyright holders to enforce copyright, the incentives to create have only increased. And this is not just the ability to create as an amateur, but the ability to create and earn money as a professional.
A recent paper by economists Felix Oberholzer-Gee and Koleman Strumpf demonstrated this in rather great detail, highlighting that even as new technologies have undermined classical copyright law, there remains little evidence that this change has undermined the incentives to create. In fact, the research collected in that paper and other papers suggested that more people are creating new works of music today than ever before in history. The same is true of movies, an industry that has seen the number of annual releases double in the last five years alone.
There is no doubt that a segment of these industries, who have relied on exclusivity and limits in the distribution channels, such as the major movie studios and the major record labels, have been slow to respond to these changes and have faced difficulties. But their views are not an accurate representation of the overall industry. The Oberholzer-Gee/Strumpf paper clearly demonstrated that the amount of money being spent on music by consumers has grown massively in the past decade -- it's just that a smaller portion of that spend goes directly to the record labels. An even more recent study out of the UK, done by two industry economists working for PRS, the UK's performance rights collection society, also found that the overall music industry was making increasingly more money, despite the challenges of a changing market.
These studies point to important facts about how industries can adapt, even in the face of technologically-weakened copyright, without the need for greater enforcement. But they also raise an important point: when our policy on copyright is made without actual evidence, it is important to allow different countries to experiment with their own copyright policies, from which the rest of the world can learn. Trying to enforce US-style copyright law throughout the world does a disservice to the very purpose of copyright law: to promote the progress.
By allowing different countries to experiment and adopt their own style of copyright law, we create a real-world experiment from which we can learn what does, and what does not, help to "promote the progress." Using US trade policy to pressure other countries to adopt a US-style copyright law brings all of the problems with US law to other countries, and presents no chance for us to examine how our own law might be improved to serve the purpose of the law, as set out in the Constitution.
The Special 301 process should be an opportunity to see what other countries have done and what we can learn from them, rather than an opportunity to try to export faith-based US-style copyright law to other countries, solely for the benefit of a few companies who have not adapted, while many others in their industries have made the jump to supporting and embracing new technologies and new business models. The US should be encouraging local experimentation with copyright law, rather than strict adherence to our own brand of copyright law -- especially given the lack of concrete evidence that our own laws do, in fact, "promote the progress."
Sincerely,
Michael Masnick
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Filed Under: copyright, foreign copyright, progress, special 301 report, ustr
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any mention of canada this time?
WHO i may add by sounds of it has been breaching contracts and good faith since the 1980's and not paying any artists or at least 300000 of them. AND they have been stealing the cdr levy money and not paying Canadian artists at all.
Why is not some federal agency in charge a fraud not investigating one of the largest frauds in Canadian history
FOUR HUNDRED AND FIFTY OR MORE MILLION
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Re: any mention of canada this time?
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Question...
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If you know the right people...
and you're in the right place,
at the right time,
then, MAYBE, it'll be you(rs).
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If you have the right amount of money and you give it to the right people
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this style of writing is also exactly why most lawyers dismiss articles written by "policy specialists/analysts" like julian sanchez and tim b lee (not sir tim berners lee). they're always long on conclusion and short on facts. seriously, go to law school... even a third or fourth tier law school will do nowadays. i know a bunch of guys who went to low ranked law schools on the cheap and they're doing great.
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In the interest of keeping the letter as short as possible -- and already it was over the 2,000 character limit put forth by the USTR. But to conclude this means there are no other such studies is bunk (not to mention I also cited the PRS study). It's just that simply listing out study after study didn't seem like a valuable use of the space.
meanwhile, IP benefactors will be citing the dozens of studies discussing economic explosion in india and china since the two countries started embracing IP.
They'll run out of the 2,000 character limit quickly if they do. Or do they get a special system whereby such limits don't apply to them?
Anyway, if you could point me to such studies, I'd love to see them, because I haven't seen one yet. In fact, most of the reports I've seen have suggested the opposite -- that any explosion in India and China has been due to their *less* restrictive IP policies.
But, you know, details.
this style of writing is also exactly why most lawyers dismiss articles written by "policy specialists/analysts" like julian sanchez and tim b lee (not sir tim berners lee). they're always long on conclusion and short on facts.
Funny. You've been posting comments "long on conclusion and short on fact" repeatedly on this site. And each time I've called you on them. And, this is even more amusing since you still refuse to share your name because you know that if we attached your bogus claims here to your name it would harm your reputation.
Tim and Julian at least are able to stand behind their positions by putting their name to them. And to claim that either is usually "short on facts" is laughable. Please point to an analysis by either that falls into that category. Both have done incredible levels of research that have brought out all sorts of facts the likes you and your friends like to pretend don't exist.
seriously, go to law school... even a third or fourth tier law school will do nowadays. i know a bunch of guys who went to low ranked law schools on the cheap and they're doing great.
Ha! Okay, two can play at that game: seriously: get an econ degree. You're failure to understand basic economics has made a fool of you in these comments for the last month.
Of course, I'm joking. It's the height of ridiculous arrogance to claim you need a particular type of degree to discuss these issues, but it's really quite stunning that you think a law degree is more important than an econ degree here.
No wonder you are so easily proven wrong time and time again. But, again, it explains your fear of actually standing behind your words. Someone's too afraid to actually stand up for his lies. What a sad life.
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and i have nothing to gain from disclosing who i am. you've brought your tabloid bullshit and misguided followers over to ben's blog on more than one occasion, and despite his clearly better arguments, you always respond with hyperbolic phasers and reality distortion field set to max (hint: intentionally cannibalizing your high-margin goods and service when people are still clearly willing to pay for them is just stupid). even on ben's blog, you act like every single argument against you is a strawman argument, and then you use strawman arguments and opinions-posed-as-facts yourself. unfortunately, there's no judge on the internet which says "sorry mr. masnick, but the reason you're not keeping up is because you never went to law school and you were never taught what legal relevance is. as a result, you completely fail at differentiating between what factors actually matter in this ruling."
as for the econ pot shots, you still haven't realized that every cost which is directly proportional to the cost of producing another sale, is a marginal cost of reproduction (it's a simple derivative...). every single business expense is a fixed cost, marginal cost, or has mixed elements (electricity and customer service are perfect examples of expenses which CAN be mixed, and it depends on the company). instead of thinking and analyzing for yourself, you're still regurgitating some 70 year old community college professor's notion of what categories different costs used to be in when he was a fledgling at some bank or brokerage firm.
as for giving away the cow while selling milking services, you should ask redhat how that's doing for them. they grossed $600m last year... while microsoft grossed over $60,000,000,000. that's $600 billion... with a B.
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While I like the turn of phrase, no I've never "acted like my opponent is beating unicorns with a bag of rainbows," but if it makes you feel better to add some lies with your factual confusion, go ahead. Whatever gets you up in the morning.
and i have nothing to gain from disclosing who i am.
Exactly. Because the harm it would do to your reputation to be associated with being so wrong so often and doing such a pisspoor job of covering up your mistakes.
I'll note that you never admitted you were completely full of shit when you accused me of confusing units with revenue, even after I showed you the numbers and you were wrong. You also never admitted you were wrong when you seemed to think that average cost was part of marginal cost. I recognize that someone in your position is paid not to ever admit to being wrong, but, really, when it's in black and white? You could do so. But, of course, you'd never put your name in public, because who would pay you for saying stuff when you're so wrong so often?
as for the econ pot shots, you still haven't realized that every cost which is directly proportional to the cost of producing another sale, is a marginal cost of reproduction (it's a simple derivative...).
Seriously. Take an economics class.
unfortunately, there's no judge on the internet which says "sorry mr. masnick, but the reason you're not keeping up is because you never went to law school and you were never taught what legal relevance is. as a result, you completely fail at differentiating between what factors actually matter in this ruling."
Indeed. But, you know what there is? There are readers, many of whom are lawyers who actually do know what they're talking about -- and I run such stories by them, and they tell me I'm right. So... who do I trust? Well respected, well known lawyers who have sterling reputations in the field, or an anonymous admitted-industry-shill who has been proven wrong time and time again and won't admit it?
Gee... tough choice.
as for giving away the cow while selling milking services, you should ask redhat how that's doing for them. they grossed $600m last year... while microsoft grossed over $60,000,000,000. that's $600 billion... with a B.
Heh. Go with that. It's a good one. Seriously, an economics class would be really, really helpful to you before making dumb economic arguments.
Oh, by the way, how much did Lehman Bros gross in 2006?
I'll skip over the bizarre claims abou
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Yes. It was the IP embracing that did it. Especially in China's case. Everyone knows that. It's as plain as day that China's economic explosion had to do with the embracing of IP. I've been such a fool to believe it was cheap manufacturing of cheap goods.
Silly me.
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I wrote my congressman and they called me and wanted me to work on their re-election campaign.
Even offered me a salary.
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Re: Re: Re: Re: If Michael Steele runs for president, I will leave the country
Most recently, I received a "Obama Agenda Survey" with a signed letter from Michael Steele asking for money, starting at $500. The questions they asked were just horrendous, incredibly biased and show how out of touch with America they are and are looking for support from Tom Tancedo-esque people:
The preceding announcement also ended with a donation request to the RNC, brought to you by Michael Steele. Super coolness.
I want to see the Dems win but they really have a problem getting anything passed. That in itself is real sad.
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I'm more bothered when a Senator replies to my questions around the transparency of ACTA with an explanation (in industry-friendly terms) of what ACTA is. I was already well-aware of what ACTA is, and his response led me to believe he's the one who needs an education on it.
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Masnick for President.
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See here's our problem: "both parties." Until we quit voting for either crappy canidate "A" from the Democratic Party, or crappy canidate "B" from the Republican Party, we're going to keep getting the same corrupt representation we now get.
If we don't wake up and start fielding some qualified "minority party" candidates, nothing will ever change. You want Hope and Change? Start voting for someone other than a Dem or Rep.
If people would stop thinking that a vote for a minority party is a wasted vote, we'd be a lot further along. I vote Libertarian 90% of the time, not because I believe wholeheartedly with their ideology, but because it aligns with my views far more than the two mainstream party's. Am I wasting my vote? Maybe, but at least I'm not a mindless sheep and I sleep far better at night than if I voted for "the lesser of two evils" as most people seem to do.
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1) Do you agree with Barack Obama and the Democrats that taxes should be raised for the sake of "fairness" regardless of the negative impact it is likely to have on the economy?
Well, Mikey, being as how your very premise is unsubstantiated, you're now 0-1. Nobody is saying that the reason they want to raise taxes is because of "fairness". They might talk about the rich paying their "fair share", but that isn't the same thing. Your party fucked us really, REALLY hard for 8 years, and that's the Dems idea to get us out of the hole you dug for us....
2) Do you believe the federal government has gone too far in bailing out failing banks, insurance companies, and the auto industry?
Well, yes, Man of Steele, I do. Here's the problem: YOU idiots bailed out 2 of those 3, and the auto industry bailout is the one that has worked the best. So now you're 0-2.
3) Do you support Amnesty for illegal immigrants?
As opposed to what, the current INS system? Then yes, absolutely. Since you're party doesn't appear interested in offering an alternative, you're now 0-3. In baseball, you'd already be done...
4) Should English be the official language of the United States?
Okay, setting aside for a moment that the USA doesn't HAVE an official language, and that attempts to declare English as such have been shot down as being unconstitutional since the time of John Adams, nearly EVERY study that's been done has shown that adopting English as the official language in any jurisdiction does nothing to enhance education or commerce, but is magnificent at causing civil liberties and due process issues. 0-4, Mike my man.
5) Are you in favor of granting retroactive Social Security eligibility to illegal immigrants who gain U.S. Citizenship through an Amnesty Program?
Well, ostensibly they've been not only aiding in our nat'l commerce, but also paying plenty of taxes, like Sales tax etc. They might not pay as much as a naturalized citizen, but what are you proposing? Letting them live on the streets when they're old and decrepid? YAY! More homeless! That's what we need! 0-5.
6) Are you in favor of expanded welfare benefits and unlimited eligibility (no time, education or work requirements) that Democrats in Congress are pushing to pass?
Well, no I'm not, that's what some of those higher taxes are for, the manufacturing of jobs for those folks that'd be on welfare otherwise. But there're are definitely some that need a boot in their ass, so I'll give you that one. 1-5.
7) Do you believe that Barack Obama's nominees for federal courts should be immediately and unquestionably approved for their lifetime appointments by the U.S. Senate?
The original response was good enough for me. Your idiotic party is supposed to be FOR strict reading of the constitution, numbnuts. 1-6.
8) Do you believe that the best way to increase the quality and effectiveness of public education in the U.S. is to rapidly expand federal funding while eliminating performance standards and accountability?
I think you mean eliminating YOUR standards and accountability. Different doesn't mean gone. But nice try. 1-7.
9) Do you support the creation of a national health insurance plan that would be administered by bureaucrats in Washington DC?
Yes, retard, I do. There are exactly two developed nations on Earth that don't have some form of govt. healthcare: The USA and South Africa. That ain't the kind of company I want to keep. 1-8.
10) Do you believe that the quality and availability of health care will increase if the federal government dictates pricing to doctors and hospitals?
Yes, actually I do. A regulated system filled with controls and balances that are difficult to game and move quickly is EXACTLY what our healthcare system needs. In fact, that system is probably the ONLY industry that actually benefits from that type of beauracracy. And besides which, you don't have govt. take over healthcare, you have it as an option. That forces the colluding others to GASP! compete! Obvious strawman is obvious. 1-9.
11) Are you confident that new medicines and medical treatments will be developed if the federal government controls prescription drug proces and sets profit margins for research and pharmaceutical companies?
Sigh, now this is just silly. The govt. wouldn't be setting the margins, they would simply become the customer big pharma sells to, and since they would be a BIG customer they'd have more power to influence price. How would the US govt. control the profits of Bayer exactly? Bayer isn't located in the US! 1-10.
12) Are you in favor of creating a government-funded "Citizen Volunteer Corps" that would pay young people to do work now done by churches and charities, earning Corps members the same pay and benefits given to military veterans?
Uh, yes! Absolutely! The work of a nation should be done by the nation, not some self-interested religious group. Christ, if ANY group is more full of shit and corruption than govt., it's organized religion!
13) Are you in favor of reinstituting the military draft, as Democrats in Congress proposed?
Not even close to truth. But hey, here's a thought, STOP FUCKING GOING TO WAR WHEN WE DON'T NEED TO, YOU REPUBLITARD FUCKWAD! What use would there be for a draft with no fucking war to fight? 1-12.
14) Do you believe that the federal government should allow the unionization of the Department of Homeland Security employees who serve in critical positions to the safety and security of our nation?
Uh, no, I don't think there should BE a DHS, particularly since your party practically copied/pasted their agenda and manifesto straight from the Nazi SS! 1-13.
15) Do you support the Democrats' drive to eliminate workers' right to a private ballot when considering unionization of their place of employment?
That's absolute nonsense. You show me a Democrat that is trying to do that, and I'll show you a Democrat that is absolutely trying to murder his own political career.
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And before you protest, just bear in mind that (according to your own admission) you support socialized medicine, socialized work forces, welfare, and Social Security for illegal immigrants.
Also, there is no federal sales tax, so that argument for why illegal immigrants should get SS benefits is a fail. Now if the states that do collect sales tax want to institute a welfare system for the illegal immigrants, that's up to them. BTW that's one of the key ideas of real Libertarians; states rights over federal, but you seem awfuly eager to cede power that should be left to the states to the feds. Hmmm...
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Re: Re: Re: Re: Re: Re: Re: If Michael Steele runs for president, I will leave the country
Yes, it means you are taxing all for the benefit of some, and that DOES tend to go against Libertarian thinking, but even Libertarians recognize that there are some things worth taxing for and some things that the Federal govt. SHOULD handle, and this pseudo-libertarian thinks a public healthcare option ought to be one of them.
On the federal income tax note, what can I say, I was wrong. I would still argue that illegal immigrants create more net benefit to the economy than net harm, so the larger point stands, but I didn't think that one all the way through.
Perhaps Michael Steele is so dumb that I become dumb when reading his words....
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That brings to mind the finale of Billy Madison...
I think we need major health care reform, but I think we should do it one piece at a time, not some huge, nearly unreadable 4000 page bill that. Start with the items that will be most effective, like tort reform and increased competition among health insurance companies (not by having to compete with the government who has no incentive to turn a profit; look at the Postal Service.), then go from there.
I agree that illegal immigrants are beneficial. Without them food prices would skyrocket. I just don't think they should get federal gov't handouts when they're being paid under the table. Working in this, or any, country illegally is a risk, and they know that going in. They took the chance to come here and make more money at the risk of not having a political voice, no health care, no retirement benefits, etc. and they were fine with that, so why are we now willing to prop them up? That will just encourage more of them to flood into the country once the risks are lowered. That's basic economics.
Oh, and I actually have no formal authority to ban you from anything Libertarian related...
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I'm more bothered when a Senator replies to my questions around the transparency of ACTA with an explanation (in industry-friendly terms) of what ACTA is. I was already well-aware of what ACTA is, and his response led me to believe he's the one who needs an education on it.
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"Thanks for writing, I'll look into it!"
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I foresee scorched earth come November.
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-you mean other than by the first 9 commenters
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Does it get read
Of course I wasn't the only respondent - but the results are instructive.
On the digital economy bill we were given the brush of by the government - with some really patronising comments (eg they said that many of the individual responses contained "factual errors" but the "represented widely held beliefs" so they would publish them anyway. Nio mention of the factual inaccuracies (eg made up statistics) in the entertainment industry responses though.
On the attempt by content owners to use the BBC (I hope against its own wishes) to force DRM on terrestrial HD broadcasts in the UK we got a bit of a result...
http://www.theregister.co.uk/2009/11/09/bbc_ofcom/
So there is some hope.
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writing to USTR
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Re: writing to USTR
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Re: writing to USTR
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Re: writing to USTR
Here we only have limited options, and none of them even claim to be useful in this area (not that politicians ever utter a truthful word at election time anyway). I still try to find and vote for the lesser evil, but it always makes me depressed, and it is highly offensive to me that you would suggest democracy plays a significant role in what is happening with copyright legislation.
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Getting your letter read
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First of all I would address it to
Senior Director for Intellectual Property and
the hindrance of Innovation
secondly, replace the word "right" with "privilege"
IP is not a right, it's a privilege.
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democracy
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Re: democracy
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Great letter!
Don't listen to those questioning whether this letter will ever be read. Your letter will be read and if we all wrote letters like these we might actually get something done. Great job!
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