Rethinking Copyright: Letting Free Be Free

from the rather-than-locking-it-up dept

Tue, Feb 8th 2011 9:08pm — Mike Masnick

Lots of folks have been rethinking copyright lately, and there are some interesting ideas out there (some of which we'll be exploring at the SXSW panel I'm moderating in March on "what would copyright law look like if it were created today?"). Michael Scott points us to an interesting piece by someone at the Yale Law & Technology blog arguing that copyright only works for big companies and does more harm than good for "smaller" artists. I'm not sure I understand the reasoning of how it works better for some than others, and while I don't think copyright is a particularly effective or useful mechanism for nearly all artists, this separation of big and small artists seems like a stretch. In fact, I'm sure many smaller artists claim (perhaps not entirely accurately) that copyright keeps their works from being exploited by large companies.

The author's "solution" to copyright issues may be better than what we have now, but it seems like there would likely be many other problems. His solution is basically to use an attribution-non-commercial Creative Commons license as the default, and then let others (in his estimation, big companies) ratchet up their copyright protections, if they so choose. I'm not convinced this really makes that much sense. This just gives the big corporations more leverage to scoop up the rights from others, taking many artists further away from their fans. On top of that, we've explained many times why the whole "non-commercial" thing isn't as simple as some would have you believe, and that there are good reasons not to put in place a "non-commercial" caveat.

Still, it's nice to see more and more people recognizing that our current copyright system is hopelessly broken. Whether they'll ever be in a position to fix things is a whole different story.

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Filed Under: copyright, free, non-commercial

41 Comments

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monkyyy, 8 Feb 2011 @ 9:44pm

i do most agrue w/ this guy, one thing tho non-mainly-commercial

so most of the grey area goes white and the clear abuses to the system can be attacked
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kyle clements (profile), 8 Feb 2011 @ 9:57pm

"On top of that, we've explained many times why the whole "non-commercial" thing isn't as simple as some would have you believe, and that there are good reasons not to put in place a "non-commercial" caveat."

This is something I do wish TechDirt would expand upon. I'm still nowhere near convinced that dropping the 'nc' clause is no big deal.

What I would like to see is some sort of distinction between what I would call "soft commercial use" - eg. using material on a site which hosts ads, having material appear incidentally in the background of television/film, and "hard commercial use" - scooping up someone else's song and including it on a commercial compilation album or soundtrack.
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- Anonymous Coward, 8 Feb 2011 @ 10:33pm
  
  Re:
  CC's future revisions should probably make a distinction somehow. Unfortunately, something like this sounds like a legal nightmare to write.
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  - Anonymous Coward, 8 Feb 2011 @ 10:57pm
    
    Re: Re:
    Let me try to help begin to think this through a bit and make some distinctions.
    
    Someone directly charges for the content or for access to that content. For instance, I go to a website and I have to pay a fee to download a content.
    
    I go to a website and the download is (or is not) available for free but I have to pay the cost of shipping + material to have a CD of the content sent to me. The person sending it makes no profit, I'm only paying cost.
    
    I go to a website and the download is (or is not) available for free, but I can order the CD at a premium price. A profit is made.
    
    I go to a store and they sell the CD at cost (is it reasonable to expect them to freely give it away), I only pay the cost of the CD. Of course I may then make copies of it and freely give it to whomever I please. The store allows (or doesn't allow) me to take back the CD once I bought (and perhaps copied) it. Is it really commercial if no profit is made? In a sense, it can be considered advertising for other products, kinda like a loss leader (so it's still commercial use, just not direct commercial use).
    
    Same as before except that I go to a store and I have to pay a premium for the CD, a profit is made.
    
    The content shows up on T.V. on a cable channel that I pay for.
    
    The content shows up on some radio service that I pay for.
    
    The content shows up on a webpage. I pay for my Internet connection but the person delivering the content doesn't get paid anything by me or my ISP. They are independent and make their money through ad revenue (now, this can get very tricky. Cable and Internet providers can try to create loopholes that will allow them to play content that they wouldn't otherwise be allowed to play).
    
    The content shows up on a broadcast radio or television station that's freely available to everyone (at least in an area) to listen to. The radio or television station makes its money through ad revenue.
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    - Anonymous Coward, 8 Feb 2011 @ 11:00pm
      
      Re: Re: Re:
      errr. "download a content" should be "download content."
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- Jose_X, 9 Feb 2011 @ 11:54am
  
  Re:
  >> I'm still nowhere near convinced that dropping the 'nc' clause is no big deal.
  
  Well, add the share-alike clause (to the default allowed commercialization), and you have a recipe to create culture that cannot be monopolized. And the primary authors stand to gain the most from this.
  
  >> "soft commercial use"
  
  Well, you could try and state alongside the license that you believe "soft commercial" is fair use; however, I prefer CC-by-sa much more, as this enables a healthier community to grow around the work rather than have many people shun the work out of fear they will grow outside the bounds one day after they have invested in growing around the work.
  
  Remember that CC-by-sa generates material you yourself can use because all who leverage your work return in kind work that you can leverage yourself. And you might just discover some interesting talent that decided to build upon your foundation (leading to much more visibility and brand growth for you) rather than on someone else's or fail to create altogether (or much later in time.. or at least with no connection to you).
  
  Share-alike is an effective tool that enables small groups to compete in today's copyright environment against those very wealthy entities that currently are the only ones able to afford creating very sophisticated works.
  
  [Also, in the open source software world, many developers have gone further than plain share-alike to actually require that the source blueprints to the work be provided also in a share-alike manner. [In other words, you get the work and the instructions to recreating the work]. Clearly, despite proving much more to the public than the final work, many are making a living off this and certainly have found motivation to create impressive software. The primary value is that you contribute a small amount while becoming an expert in some area and receive a very large amount in return from the collective community. It can be very fulfilling to create at a high quality product alongside others and without pressures of a "job". You can also then leverage the acquired skills, the collective works themselves, and your track record to find new gigs. BTW, many employees of large corporations contribute to open source software because the software is a great source of low-cost high quality software they use and need their employees train on. The employees get paid and get the required expertise while advancing specific directions favored by the corporation. Art may not carry over as usefully to this source code model (I don't know), but regardless that goes beyond vanilla share-alike or CC-by-sa on a final artistic work.]
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Anonymous Coward, 8 Feb 2011 @ 10:25pm

"Rethinking Copyright: Letting Free Be Free"

Freetard ;)
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- Anonymous Coward, 8 Feb 2011 @ 10:27pm
  
  Re:
  (I just wanted to get that out of the way so that TAM doesn't have to. Thought I'd help him out and save him the effort).
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  - RadialSkid (profile), 9 Feb 2011 @ 3:38pm
    
    Re: Re:
    I sometimes wonder if TAM ever goes to sporting events, and if so, if he shouts "FREETARD!" when the anthem hits "...land of the free..."
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Anonymous Coward, 9 Feb 2011 @ 12:00am

By promoting anything other than pure BSD/MIT/ZLIB/WTFPL anarchy licenses, you are missing an opportunity to promote pure BSD/MIT/ZLIB/WTFPL anarchy licenses. This is a sad mistake. People need to be made aware that huge bodies of work are committed virtually to the public domain without any strings attached, and that it is OK to do.
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- Anonymous, 9 Feb 2011 @ 12:14am
  
  Re:
  LOL
  
  Well played ;)
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- The eejit (profile), 9 Feb 2011 @ 12:49am
  
  Re:
  "anarchy licenses"
  
  Bit of an oxymoron, there. :)
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  - JEDIDIAH, 9 Feb 2011 @ 9:38am
    
    Glorified PD
    Yeah, kind of but it's true. Stuff like the BSDl is effectively placing stuff in the public domain. This is especially true once to get ride of the attribution clause. If you want to just make something effectively PD, then you might as well just go all the way.
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Pete Carroll, 9 Feb 2011 @ 5:45am

Re: rethinking copyright. Ikea not Chippendale
My take is UK based and concerned with written material, in particular re-use of website info from UK universities - but something must be in the air, a few days ago I posted a very similiar conclusion http://bit.ly/eT97jh that most web material/information is "ephemeral" there to do a job, more or less here and now, not to last as a creative monument. If IP was furniture, the vast majority of it is now IKEA not Chippendale. For this ephemera opting into IP protection rather than opting out (via CC etc.) seems more appropriate. Thinking about it a bit more- there is natural justice in the present system. All are equal before the law, the individual has the same right to copyright protection as the major corporation. Granted. But the present approach ignores the intention of the creator - who may want the widest dissemination of their creation with exercise of the moral right of attribution, or who, having invested a lot in creating IP wants to protect that investment. I would argue that the default intent for most material now on the web is the first- widest dissemination.
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Anonymous Coward, 9 Feb 2011 @ 5:56am

Mike, this one is classic.

You pointed to a paper from a student at the school, Max Cho.

http://maxcho.com/

Undergrad.

The Masnick Effect in full force, now quoting undergrads.
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- Marcus Carab (profile), 9 Feb 2011 @ 6:27am
  
  Re:
  So er, undergrads are unable to have interesting ideas? Is it like, they are complete idiots up until their thesis evaluation, and then when they get their degree they just magically transform into an authority on the subject?
  
  Try again next time, dumdum.
  
  (but first, attach a complete list of all your official institutional qualifications and do NOT comment on any topic you don't have a full graduate degree in, because clearly those comments would be meaningless, right?)
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  - Anonymous Coward, 9 Feb 2011 @ 6:59am
    
    Re: Re:
    They are always capable of having interesting ideas. My friends 3 year old son has interesting ideas about the potential for sand in his sand box. I wouldn't call him for ideas on structural engineering though.
    
    Really though, my point is the standard practices of the Masnick Effect. To quote:
    
    Michael Scott points us to an interesting piece by someone at the Yale Law & Technology blog
    
    See, within 10 seconds I was able to determine that the author is an undergrad. But Mike specifically left that little gem out, hoping to make the paper appear more credible by attributing it to "Yale Law & Technology blog". Yet it isn't even a blog, it is "This is the course website for the suite of law & technology courses at Yale University offered by Elizabeth Stark and Brad Rosen"
    
    It is classic Masnick Effect. By leaving out a few key details, the entire story looks and reads differently. If you aren't paying attention, it looks like a blog posting from a professor. If you put a little more effort into it, it is but a student writing a paper.
    
    It isn't that the ideas are more or less valid, it is a question of how Mike tried to represent it.
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    - The eejit (profile), 9 Feb 2011 @ 7:24am
      
      Re: Re: Re:
      And? The fact that the undergrad doesn't preclude that it's not a valuable statement. It's a blog. It's meant to be posting opinions. IT's doesn't mean that the undergrad isn't valuable in potentia.
      
      It simply means that Yale allowed their undergrad, Max Cho, to post something they considered noteworthy.
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      - Anonymous Coward, 9 Feb 2011 @ 8:39am
        
        Re: Re: Re: Re:
        Again, you missed the point. I know plenty of people who have valid points (and some of them post here). It isn't if the point are valid or not (I think they are not, but that is an opinion), rather, it the framing of the discussion as a result of Mike's post.
        
        Would you have given the post them same weight in your mind if the title was "Undergrad Student Thinks Things Should Change"?
        
        What Mike did was create a little smoke and mirrors, and leave the casual reader with the impression that this is something from Yale Law, rather than something from a STUDENT of Yale Law.
        
        Framing of the discussion is key. Without the basic understanding that this is just "Joe Student", the piece reads completely differently.
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        Marcus Carab (profile), 9 Feb 2011 @ 9:00am
        
        Re: Re: Re: Re: Re:
        You managed to figure it out okay, and you aren't exactly a beacon of intelligence and insight. So quit worrying about other readers: they are doing just fine.
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        Anonymous Coward, 9 Feb 2011 @ 9:19am
        
        Re: Re: Re: Re: Re: Re:
        Why did Mike feel the need to hide that basic fact?
        
        What other basic facts is he hiding?
        
        See how it works?
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        Marcus Carab (profile), 9 Feb 2011 @ 9:33am
        
        Re: Re: Re: Re: Re: Re: Re:
        Your definition of "hide" is bizarre.
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        Marcus Carab (profile), 9 Feb 2011 @ 9:37am
        
        Re: Re: Re: Re: Re: Re: Re:
        By the way, do you have a degree in journalism that gives you the right to comment on this? Because by your standards, you should have disclosed that at the beginning of your comment. You are obviously trying to mislead the casual reader.
        
        Why are you hiding that basic fact, AC?
        
        (see how THAT works?)
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        Anonymous Coward, 9 Feb 2011 @ 10:02am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        All this and you still miss it.
        
        The undergrad in question has every right to make the comments, similar to your right to be a yapping guard dog (thanks to whoever pointed that one out). I am not in the slightest suggesting that he doesn't have the right, nor do I disagree with Mike pointing them out.
        
        What I disagree with is specifically not mentioning that this isn't something coming from the Yale Law faculty blog, or a member of board, but rather from a student. In that regard, his comments are no more and no less reputable than yours or mine.
        
        Source is key - and in this case, Mike really misrepresented the value of the source.
        
        I am amazed that after all this discussion, you still haven't understood my point.
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        Marcus Carab (profile), 9 Feb 2011 @ 10:19am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Oh I see your point. It's just dumb.
        
        You might have noticed that this post is mostly critical of the student's piece, and that it says nothing to suggest it's authoritative or highly insightful. It is referred to as an "interesting piece by someone at the Yale Law & Technology blog" - which is exactly what it is. Personally I didn't read that and think "wow it must be Yale's top law professor" - I guess you did, but I'm not sure why. I for one am well aware that universities have students, and that those students often post writings on academic blogs.
        
        If the post had said "Yale Legal Expert Supports Copyright Reform" then yeah, that might have been misleading. But it didn't say that, did it?
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        Anonymous Coward, 9 Feb 2011 @ 10:41am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Actually, it isn't a blog - it's the course site, and that is posted likely as a reward or as an example paper.
        
        When I see "blog post from Yale Law", I expect it is some someone who works for the school. Instead, it is just someone attending.
        
        It is on par with me taking a Capital tour and issuing documents "from the White House".
        
        There is no convincing you of anything. Mike knows he punted this one, but he isn't going to discuss it.
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        Marcus Carab (profile), 9 Feb 2011 @ 6:42pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Well congratulations. While the rest of us were thinking about the ideas expressed in the piece, and not really paying too much attention to who wrote it (since the point here wasn't that some expert was laying down the law but rather, quite simply, that this was a novel idea worth a brief look and response) you successfully googled the author's name and uncovered that he is (gasp!) an undergrad.
        
        Give the man a pulitzer, folks.
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  - Anonymous Coward, 9 Feb 2011 @ 7:16am
    
    Re: Re:
    Marcus, are you Mike's personal defender? You come across like a little dog that barks continuously when someone gets too close to your master. Yap, Yap, Yap, Yap, Yap.
    
    Its okay for people to express dislike for things they read on techdirt. You are not obligated to bark.
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    - Marcus Carab (profile), 9 Feb 2011 @ 8:56am
      
      Re: Re: Re:
      See here's the thing: I like Techdirt. I find it to be a source of high-quality commentary on a lot of topics I am interested in. I also write for the site on occasion.
      
      So yes, I do defend it when someone like you - a paranoid obsessive with no actual points to make, who whines about absolutely everything on the site - gets in the way of productive discussion and constantly pushes your absolutely worthless opinion. I'm done playing fair on this - you are useless and you have never said anything of any value whatsoever. Your complaints are childish, your defenses for them even moreso.
      
      Or, in short, you're right: I probably shouldn't bother responding because it is such a waste of my time. But you are a really insufferable person who manages to piss me off on a regular basis, so it's hard to resist.
      
      Ad hominem perhaps, but them's the breaks: you suck. And even if you had interesting thoughts nobody would pay attention to them because you are so painful to listen to. I don't like your opinions or your attitude.
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      - Anonymous Coward, 9 Feb 2011 @ 9:21am
        
        Re: Re: Re: Re:
        What is truly funny is that I didn't post that. Check the snow flakes and get a grip.
        
        What pisses you off is that people don't agree with your point of view. You need to accept that the world is full of those people. I like to call them "right". :)
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        Marcus Carab (profile), 9 Feb 2011 @ 9:32am
        
        Re: Re: Re: Re: Re:
        Yeah, sometimes I get you snowflakes confused, since you all sound exactly the same and make exactly the same pointless comments (and some of you are clearly the same person masquerading as more than one AC) - of course, if you actually believed in your opinions you would give yourself an identifiable name, but then you'd be forced to stand behind things you said in the past which I know you'd never do. In any case, I'm fairly confident that everything I just said applies to you as well.
        
        And I rather like it when people disagree with me, because it usually leads to an intelligent conversation where both people learn more about their opinions. That has yet to happen with any of you bitchy ACs, because you are never the slightest bit rational.
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        Anonymous Coward, 9 Feb 2011 @ 10:03am
        
        Re: Re: Re: Re: Re: Re:
        When you feel a lack of rationality, you may want to look at your own stand. When your opinion is far enough off to the side, everyone else looks like out.
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        Marcus Carab (profile), 9 Feb 2011 @ 10:14am
        
        Re: Re: Re: Re: Re: Re: Re:
        heh, yeah, I'm way off to the side - that's why everyone here always agrees with your position, right?
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        Anonymous Coward, 9 Feb 2011 @ 10:43am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        heh, yeah, I'm way off to the side - that's why everyone here always agrees with your position, right?
        
        No, they don't agree with my opinions. But outside of a few militants like yourself, most of them are able to actually discuss the content instead of just dismissing it.
        
        Sticking your nose firmly up Mike's butt doesn't make you right, but it may make you feel warm. It also makes it hard to see where you really stand.
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        Marcus Carab (profile), 9 Feb 2011 @ 10:57am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Weird. You've brought up Mike like a million times in this discussion and I have no idea why. I'm talking about this post here - you know, the one we are reading. You're the one who apparently can't help making it personal.
        
        And er, what content was I supposed to be discussing exactly? Oh right, you are all in a twist over what you feel to be misleading attribution. Well, I've already explained why I don't find it misleading - and nobody else seems to have been misled - so I think the problem might be with you. If you don't like being dismissed, you should stop your desperate nitpicking.
        
        One day I will learn my lesson and not even bother responding to you people, because this has gone on way too long... I'm going to get back to work.
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        Anonymous Coward, 9 Feb 2011 @ 12:28pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        you are all in a twist over what you feel to be misleading attribution.
        
        I am not "all in a twist" (however you might want to check your manties, they appear to be in a bunch... feel better?). Rather, I think that it is just a wonderful indication of the lack of integrity in some of the posts on Techdirt.
        
        Mike's willingness to completely misrepresent data ( http://www.techdirt.com/articles/20110207/02222612989/if-artists-dont-value-copyright-their-works-wh y-do-we-force-it-them.shtml ) is clear. From this post, it is becoming more clear that he is willing to be particularly evasive about source material, or is willing to swallow other writer's comments whole without consideration.
        
        For all we know, the student's paper may have been as a result of a professor challenging students to take a point of view they don't agree with and support it. We don't know. It isn't a study, it isn't even a blog post. It isn't from faculty.
        
        I am not all in a twist about it, rather I am incredibly amused by it, and equally amused that Mike can pull the wool over your eyes so easily. Yet even when the chicanery is exposed, you defend him for it.
        
        A-f--ing-mazing.
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        Marcus Carab (profile), 9 Feb 2011 @ 1:39pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        It still seems to me like you were the only one "misled" (read: confused) by this post.
        
        Again: I do understand the case you are trying to build against Techdirt, but it still seems pretty flimsy to me. I read a lot of news from a lot of sources and the idea that someone would call this site out for being especially misleading is, frankly, laughable. The whole reason I enjoy the posts here is because they aren't so fixated on he-said/she-said or some ill-defined concept of "balance" without scrutiny - they are focused on the actual ideas and a logical exploration of those ideas.
        
        This isn't a newspaper, it's an opinion and commentary blog. You don't have to agree with the opinion, but I don't understand why you immediately have to turn every disagreement into accusations of a lack of integrity. Look around at the comparative state of news media and punditry today -- you'll realize TD is doing a pretty damn good job (which might explain why it's so popular, and why there are only a tiny handful of folks like you who constantly complain about it)
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        Anonymous Coward, 9 Feb 2011 @ 7:44pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        "I'm going to get back to work."
        
        What a joke. As far as anyone can tell you and a few others around here work for techdirt, its obvious that you do not get anything else done. I feel sorry for your employer.
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      - Anonymous Coward, 9 Feb 2011 @ 7:47pm
        
        Re: Re: Re: Re:
        What? What's that? I can't seem to have a conversation around here without a bunch of yappy dogs going nuts.
        
        Get a life.
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Gene Cavanaugh, 9 Feb 2011 @ 7:47am

Copyright
As an IP attorney, I seldom reflect on "why", but emphasize "what", as in what does the law and case law tell us?
However, due mostly to Techdirt, I have been thinking about "why".
I believe it would be a mistake to try to do a paradigm shift. Rather, we need to increment to a solution.
While the best solution would be campaign finance reform, so that our legislators would be unbiased, I don't think there is enough intelligent life here for that.
First, IMO, we need to revoke Bayh-Dole; a HUGE mistake.
Second, we need to REQUIRE mandatory, reasonable licensing, or something of the sort, for ALL types of IP.
Third, we need to provide penalties against overreaching in IP litigation.
Fourth, then we decide "what next?"
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- Jose_X, 9 Feb 2011 @ 12:24pm
  
  Re: Copyright
  >> Second, we need to REQUIRE mandatory, reasonable licensing, or something of the sort, for ALL types of IP.
  
  Well, that improves upon monopoly, but, without fixing some of the other problems, it can still lead to high costs, lots of violations that penalize creativity, etc.
  
  In fact, the dreaded "patent trolls" are usually groups that simply seek mandatory license fees (if perhaps on the high side).
  
  If we "expanded" fair use for patents to exclude small commercialization efforts (and some other things like recognizing independent invention and removing restrictions on research as you mentioned), and then made license fees from the large firms be much smaller (as it appears the courts might do anyway.. because today's products "infringe" on so many "software" patents), this would help a lot.
  
  For copyright, we should also clarify and broaden fair use. In particular, mash-ups and other cases where copyrighted material forms a small and/or very modified part of the whole, should also be unrestricted. The duration term also needs to come down a lot.
  
  The above could serve as evolutionary movement towards eventual abolition, for example.
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