Administration's New IP Enforcement Recommendations Will Only Serve To Make IP Less Respected
from the they-don't-get-it dept
Intellectual Property Enforcement Coordinator (IP Czar) Victoria Espinel has come out with the White House's recommendations on intellectual property enforcement and, as you might imagine, they involve the same strategy as always: ratchet up the punishment. Now, a lot of the proposal is very narrowly focused on things like selling counterfeit products to the military. In situations like that, I don't have too much of a problem with what's being said. Those are clear cases of likely harm and potentially putting people in serious danger.The problem, of course, is that the recommendations don't stick to these situations and start to stray pretty quickly. So let's look at a few points in the plan that raise some concerns:
Increase the Guideline range for intellectual property offenses committed by organized criminal enterprises/gangs;Of course, who's going to be against that? After all, we keep hearing about how infringement funds organized crime and terrorism. Except, we don't, really. There was basically one such report, from RAND, which conflated a few issues and has been mostly debunked (including in the recent SSRC report). But, even if we accept that there are organized crime groups involved in these sorts of things, the main fear here is how the government will define "organized crime enterprises/gangs." We've seen those terms stretched before in various contexts to include just a group of a few kids hanging out together. How long will it take until just some kids file sharing with each other are somehow labeled a "gang" for this purpose?
Increase the Guideline range for repeat intellectual property offenders.Again, something that sounds innocuous enough until you realize that pretty much everyone is a repeat intellectual property offender every single day. As such just wait and see how the government uses trumped up infringement charges against people to show that they're "repeat offenders."
Ensure that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony;Quite vague and potentially scary if it's not clarified. Streaming is a felony? Is that for the end user who does the streaming or the host? Does this mean someone who uploads to YouTube could risk felony charges? We've already seen how the government is prosecuting a guy for embedding streams. Think of how many felons this rule might create without clear guidelines. And the "similar new technology" clause seems vague too. Does the White House really want to criminalize technologies before they even have a chance to see if they can help the market? For a White House that has been banging the drum on "innovation," this makes little sense.
Authorize DHS (including its component CBP) to share pre-seizure information about, and samples of, products and devices with rightholders to help DHS to determine whether the products are infringing or the devices are circumvention devices; andYeah, because that worked so well in these earlier domain seizures in which DHS shared songs that were being offered on websites and the RIAA mistakenly claimed they were infringing, despite being sent by the copyright holders -- even claiming one song by an artist not affiliated with an RIAA label was infringing, despite having no right to speak for that song. The government already relies way too heavily on extremely biased parties in these situations. Allowing them to lean even more heavily on them rather than independent third parties seems extremely dangerous.
Give law enforcement wiretap authority for criminal copyright and trademark offenses.Considering that the government now considers linking to infringing files as a criminal offense, this seems like overkill again.
There's also a big section on dealing with counterfeit drugs. Here, again, there isn't necessarily an issue with trying to stop counterfeit drugs that are serious health risks. But, too often, the US and other countries have lumped counterfeit drugs in with perfectly safe grey market drugs imported from other countries. Not separating those things out is a problem.
Finally, there's one bit of oddity. Right at the very bottom, there's this:
Finally, we recommend creating a right of public performance for copyright owners for sound recordings transmitted by over-the-air broadcast stationsWe've debated the performance rights tax for quite some time here. It's nothing more than a bailout for the record labels by taxing radio stations for advertising music. In what world does it make sense to force someone to pay for advertising someone else's work. Anyone familiar with the history of payola would know that such a performance right is completely anti-market. When left to their own devices, the record labels have always wanted to pay radio stations to play music, knowing that it helps promote the music. But the performance right tax flips that equation over, and says that radio stations now have to pay.
But, really, the bigger question is what does this have to do with enforcement? I'm fine with Espinel going beyond just focusing on enforcement, if she's going to look for ways to actually help IP live up to its Constitutional mandate of promoting the progress. But this recommendation seems completely out of place in a document focused entirely on enforcement with this one non-enforcement issue tossed in at the end.
The thing is, every time the government ratchets up IP laws in ways that don't match with the way most people view the world, the less respected those laws become. Rather than actually increasing enforcement, these moves decrease respect for those laws.
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Filed Under: copyright, enforcement, ip, laws, victoria espinel
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Great Summation
Agreed. If you look at nations where laws like this have been implemented you see they go unenforced. It would be a political suicide to actually enforce when 50% or better of the population infringes.
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Citation needed for this broad statement.
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Re: Great Summation
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Odd Headline
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WE NEED BIGGER HANDS!!!
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"Yes We Can" is old hat
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By using it without permission, you've just infringed their intellectual property.
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The tears of pro-piracy trolls always tastes sweet
These sites have been peddling the same "piracy is good", "piracy is here to stay", "all anti-piracy is bad" B.S. for years, and it's just lovely to see the government ignore them for what they are.
Keep up the faith. It makes for great entertainment when all your continual piracy accomplishes is stricter and stricter laws.
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Re: The tears of pro-piracy trolls always tastes sweet
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Re: The tears of pro-piracy trolls always tastes sweet
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Re: The tears of pro-piracy trolls always tastes sweet
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Re: Re: The tears of pro-piracy trolls always tastes sweet
You're getting exactly what you're asking for.
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Re: Odd Headline
That way there's nothing to disrespect about it, and we can just respect it as a theoretical construct.
Of course, we can't actually "abolish" IP overnight (because that's ridiculous), so the goal is instead to progressively eliminate IP enforcement, thereby accomplishing the same thing.
This site is sharing genius-level insight with you and you're not even listening. Try to pay attention.
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Re: Re: Re: The tears of pro-piracy trolls always tastes sweet
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Re: Re: Re: The tears of pro-piracy trolls always tastes sweet
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Re: Re: Odd Headline
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Re: Re: The tears of pro-piracy trolls always tastes sweet
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Why pirate illegally when you can pirate legally?
Use Jamendo people.
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Further you can't win this fight, people will just go elsewhere and eventually they will find the legal alternatives.
LooooooooooooooooooooooooooL!
I hope you get every single absurd law you want, because that will drive people in droves to other places away from you people.
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Actually the way I see it is a type of payola. The record labels force the radio stations to pay tax on CERTAIN songs & artists, but can play artists the record labels want played for free.
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Our own governments are working against us the people so we must organize and start meeting all their demands, because that means they also will have to abide by those rules and will have increased expenses, we can do it but with less expenses.
We can produce medicine, we can make our own songs and movies and give it away for free and hopefully see the otherside bitch and moan on their way to irrelevance.
This is actually a good sign, it means they want to make it difficult and scare people, but if people don't get scared and fight back they will be sorry they did such a thing.
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Our own governments are working against us the people so we must organize and start meeting all their demands, because that means they also will have to abide by those rules and will have increased expenses, we can do it but with less expenses.
We can produce medicine, we can make our own songs and movies and give it away for free and hopefully see the otherside bitch and moan on their way to irrelevance.
This is actually a good sign, it means they want to make it difficult and scare people, but if people don't get scared and fight back they will be sorry they did such a thing.
Ok Go news :)
Quote:
Nobody buys plastic discs anymore they buy USB drives LoL
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I congratulate ICE for shutting down those sites that infringed with having obtained legally mp3s. It ensures no one else will want to deal with music labels for the purpose of hype.
Slowly but surely the music industry is painting itself into a corner it won't be able to come out of. Already most folks that know anything about music is treating the major labels as a lepper colony.
The end can't come soon enough. I love the see the trolls squeal every time something comes up. I always get joy from the idea that is the best they can do for payment.
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Re: The tears of pro-piracy trolls always tastes sweet
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Re: The tears of pro-piracy trolls always tastes sweet
You know what inevitably happens to a country where laws get more and more restrictive don't you? Or have you forgotten the prohibition era?
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Re: Re: The tears of pro-piracy trolls always tastes sweet
Piracy is a symptom of that. And once Internet 1 gets locked down, an Internet 2 will rise from that deadlock.
The Internet got to where it is now because it is an open communication medium. No pirate or government will ever control it because, once they do, it ceases to exist.
You know, the tighter the grip the more systems slip from their fingers. Pirates will keep on pirating and government will keep on pretending they can control basic human nature, and will continue to fail.
In the meantime, while the "western world" is playing whack-a-mole with pirates, the rest of the world it evolving and crushing it economically. While we play with imaginary property, they are actually building stuff and putting it out there. Stuff that you can't pirate no matter how hard you try (because replicators do not exist yet). Have doubts? Flip your keyboard see where it was made. What about those shoes you are wearing? What about your monitor? You get the point.
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Take away all internet music that is being exploited...
Bon Jovi may remember the pleasure of sitting down and enjoying paging through an album when he was young. I remember the countless cassettes I had with just a bleep of the DJ that I missed. Hours listening to the radio station to get them. Or going to a friends and playing their album and recording it. My first exposure to Hendrix, The Doors, and a bunch of rock bands was at my older cousin's who bought all the albums, but I was just a bubble gum soda drinking 12 yr old. Literally all the allowance I got was enough to keep me in bubble gum and soda! I would record over my dad's old reel to reels...
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Re: Re: Odd Headline
There are a few abolitionists around here, but most regulars are not abolitionists. You will be hard pressed to come up with very many posts advocating that.
What you will find is a lot of people who think the principle of fairness has left IP law and IP enforcement a long time ago. The current laws are neither reasonable, nor do they promote progress and productivity.
They do protect the income of a very small group of people. This group rarely includes the actual creative individuals, but instead is mostly "suits".
Meanwhile a barrage of disinformation and lobbying continues in an attempt to maintain the status quo.
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The culture has changed. No longer do people sit around at spin parties...
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How about this one?
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Re: Re: Re: Odd Headline
I'm probably the nearest thing to an abolitionist amongst the regulars. My stance is that IP law should be based on necessity and arguably benefits. Often those who take the middle road presuppose the necessity of IP law and struggle for an arbitrary number of years to reduce copyright to. If people aren't constantly asking the question 'do we need it at all', then I worry that the analysis determining what IP law gets reformed to will be aimed at keeping an effective status quo while placating those calling for reform.
I'm happy to debate whether or not we should have IP law, but until that debate starts I'll pitch my tent on the side of getting rid of it. It's OK to call me an abolitionist, that is a fair label for where I'm coming from. However, it is not a fair label for Mike or the Techdirt community as a whole.
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so does using the next version of utorrent count as a felony?
is using an old version of utorrent running on window 8?
that is extermly prone to abuse
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Anonymous: "Boston civil-liberties lawyer Harvey Silverglate" expressing his opinion, not fact, sorry.
vivarlamor: A student paper? Only marginally better than a techdirt self-link.
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Citation needed for this broad statement.
Ok. Just off the top of my head? Here we go:
Section 102 of Title 17 indicates that all literary works receive copyright protection and that emails qualify as "literary works" since they are fixed in a tangible medium of expression. See: http://www.quizlaw.com/copyrights/what_is_fixation.php
Therefore, any time you forward an email to third parties without the express permission of the original author of the email, you are in violation of his/her copyright. Haven't we all done this?
There's your citation. Do you genuinely need further legal citations regarding your cel phone camera capturing sculptures, billboards, photos or architectural works in the background without their respective creators' permission? Or are you just being obtuse?
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http://en.wikipedia.org/wiki/PRO-IP_Act
The Prioritizing Resources and Organization for Intellectual Property Act of 2008 ("PRO-IP Act of 2007", H.R. 4279), is a United States law that increases both civil and criminal penalties for trademark, patent and copyright infringement. The law also establishes a new executive branch office, the Office of the United States Intellectual Property Enforcement Representative (USIPER)
Let me guess? It doesn't count?
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To me, that's an unfair assumption.
"Since you don't believe in maximizing copyright, you apologize because piracy is wrong. DERP!"
First, piracy has already been proven not to cause major problems when someone finds ways to profit from it. Second, it's all about the price points of what you can gauge the market for. Not all songs are created equal at $1. Not all songs are worth $20. But when you find out how to make people buy other things, what's the problem?
I've actually had someone comment about how an artist having a T-shirt sale supposedly cheapens their music.
Now I'm not the smartest man in the world, but which artists DON'T have some kind of clothing/music/fashion line in ANY way, shape or form.
"But it's about the music"
No, no, it's not...
It's about being able to support what you do by not pissing off your possible fan base. What every last copyright maximalist forgets (it seems) is that copyright can't guarantee income. That's what the artist has to figure out.
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Windows 8???
WTH is going on?!
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This has been a major failiing on their part. By trying to turn everything into a major revenue stream, they're killing off a great deal of demand for their product.
It's like the NYTimes article recently about online services that said that music download sites are having a hard time making money. It's about the easiest business to set up and should be very lucrative. The ongoing costs are fairly small relative to potential income (other than the crushing license fees).
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Re: The tears of pro-piracy trolls always tastes sweet
"It makes for great entertainment when all your continual piracy accomplishes is stricter and stricter laws."
The reason the laws have gone so far is not enough people are paying attention. All these stricter laws will accomplish is to shine a light on IP laws as they affect more and more people. That is the last thing pharma, content, and patent types want. Right now in the US, as a guess, I would say 1-2% of the people on the internet actually follow IP laws. With the ICE screw up of seizing the mooo.com domain thats been increasd 84,000 web sites, and all the people that have visited. All of whom will remember this event.
All that is needed for real IP reform in the other direction is for this to be abused so that people take note. So as I said, I really want more draconian laws. As events in the middle east, human flesh search engines, Anonymous, all the "Party Of We" types show is that eventually there is a backlash. We are approaching that point.
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Re: Re: Great Summation
Read my previous comment in this thread. At this point not enought people have taken and interest in IP laws. As these new laws affect more people they will. A threshold will be reached and a backlash will occur.
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"Welcome to Ektoplazm, the world's #1 source for free and legal psytrance, techno, and downtempo music in MP3, FLAC, and WAV format, no registration required! Here is the latest from the Ektoplazm netlabel family: Ektoplazm (psytrance), Drumlore (progressive/techno), and Omnitropic (downtempo/ambient)."
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Two things .... Its not the music industry, its the record labels. ... And they already have painted themselves into a corner. They have created a monolithic system that can't adapt. These new laws will only drive away artists as being associated with the labels and their view points becomes a even more negative.
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'Ensure that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony;'
A felony? Where's the law for that statement? What is considered appropriate circumstances?
Who decides what is infringement?
Are they trying to shut down internet radio and broadcasting now?
Are they making streaming a crime?
That is my business, Hosting and Streaming. All of my streamed internet radio stations pay ASCAP, BMI and SESAC and those payments create a loss for that station. Every station I host loses money paying the powers that be. Even non-profit stations with no advertising have to pay.
I also stream original Rock Bands and they have streams going of music that I know for positive hasn't been registered with either 1 of the 3. It is indie music and is being streamed by the owner of that music. No RIAA! They weren't invited to the party. We didn't even invite ASCAP and the other assholes who keep saying pay, pay and none of the artists we talk to ever get a penny.
We also stream live concerts and we don't ask if they paid the right people. We will refer any lawsuit to the actual offender.
It's ridiculous that we would be held responsible for anything any of our customers broadcast. We can only monitor or shut off the stream. We don't record it and we make customers use FTP to upload their programs for any storage. This is Private FTP. No one else gets access to that information unless it is given out by the user.
This kind of rhetoric from the government is extremely scary at a time of such economic uncertainty. We have / had plans for capital investments of hardware and software this year and now are considering that maybe we had better wait until the government makes up it's collective mind on what the rules are. We have / had plans to increase our server capacity with new technology. This will also provide new jobs in our area. Since we are a company owned and operated by disabled people we will hire people that have disabilities first.
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55 MPH its the law
At first people respected 55 MPH as an emergency measure. That is, until the emergency was over and it became permanent law.
After that, people widely lost respect for the speed limit. It was no longer considered to be something related to safety. It was viewed as arbitrary. People in states with sparse traffic on long looooong roads where you can see the road in a straight line for miles viewed it as ridiculous.
At some point copyright will be similarly viewed if it isn't already. A point will be reached where it is too late to ever get people to respect copyright ever again.
It will be like Prohibition.
It will be like when everyone was driving 70 in a 55 zone, and radar detectors were widely used by the common person to evade law enforcement of 55 MPH.
The best way to get rid of unjust law is to enforce it.
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The paper I cited was written by Professor of Law John Tehranian. Am I missing some technicality that makes it a "student paper" or are you being blatantly dishonest?
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