Rich Fiscus' Favorite Techdirt Posts Of The Week
from the favorites dept
This week's favorites post comes from Rich Fiscus, who hasn't commented on the site much, but when he does, it's almost always worth reading.
By far, my favorite story of the week was one that seems to have gotten very little attention from the Techdirt community. That's understandable since it revolves around a musician many readers may not have heard outside of samples and a 52 page legal document. In fact, despite his status as one of the most influential musical figures in the last 50 years, it's not immediately obvious why you should care about George Clinton's lawsuit against his former lawyers. I would argue, however, that his career is a textbook example of why artists should pay more attention to the business side of their craft. To put it in Mr. Clinton's own words, "free your mind... and your ass will follow."
One of the most common complaints whenever someone suggests to musicians that they need to develop a business model is, "we shouldn't have to be business men." You need look no further than George Clinton's career to understand why that argument was never valid. His work over the decades has netted hundreds of millions, if not billions, of dollars - but not for him. It was never his art which held him back. It was poor business decisions.
In market terms, he invested heavily and unwisely in the funk bubble of the seventies and ended up bankrupt by the mid-eighties as a result. Even though George Clinton understood early on that his career was a business, he failed to arm himself with the basic tools to operate it wisely. As a result, he blindly trusted others to protect his interests and has been paying the price for at least three decades.
To be sure, the people who apparently defrauded Mr. Clinton should be held accountable for their actions, but that doesn't relieve him of the duty to oversee his business. If he were building houses or selling shoes, wouldn't the responsibility for hiring competent and honest managers, accountants, and lawyers rest at his feet? Why should he get a pass because his product is entertainment?
At the same time, the question of legal malpractice is more complex. Mr. Clinton claims his lawyers worked directly against his interests and wishes. He alleges they failed to take obvious and necessary steps to disqualify key evidence. According to his filing, they went so far as to instruct him to lie on the witness stand. Lawyers, more than any profession besides doctors, are the public's only link to a service vital to our everyday lives. Without lawyers most of us have no access to justice.
Yet, somehow, we don't hold them to the same level of professional accountability as doctors, accountants, or even used car salesmen. On one hand, this is a necessary evil. No lawyer can know all the nuances of the law or memorize every court decision that might be relevant some day. But authenticating disputed documents and telling the truth in court would surely be obvious even to a layman, let alone a legal professional.
From legal malpractice we move on to legal misrepresentation and the fading fortunes of Righthaven. As they lose more and more cases, the questions are shifting from the legitimacy of their copyright claims, to the legality of their entire business. This is an issue bigger than Righthaven or their individual victims. Lawyers, including Righthaven CEO Steven Gibson, do not just work in the legal system. They are its representatives. If they are allowed to knowingly perpetrate fraud upon the system, it victimizes all of us. A justice system that the people cannot trust is one they will fear to avail themselves of. Likewise, those who see others gaming that system for their own illicit gains will be emboldened to do the same.
Which brings us to a final stop on this week's legal merry-go-round. The question of whether a picture taken by a monkey qualifies for copyright protection may have a touch of the absurd, but it is deadly serious to photographer David Slater. His assertions and the takedown request from Caters News Service, which neglects to state any legal claim, illustrate the biggest obstacle to an honest debate over copyright.
Both parties make the same mistake. Instead of questioning whether the photo meets the legal requirements for copyright, they assert it must be so because he deserves it. Copyright has never been about a single individual, or at least it's not supposed to be. Its stated purpose is nothing more or less than to act as an economic incentive.
Furthermore, if we make it about fairness, we must consider more than the creator and publisher. It must be about fairness for everyone. That includes creators of future works and the public at large. What appears just when you consider only the artist is often completely unjust for the rest of society. That's what our laws are supposed to be providing - justice for society. Justice does not mean the best possible result for one party, but rather the most equitable result for all.
Finally, on a lighter note, I wonder how different my life would have been had I known my love of Iron Maiden and Motörhead might just be a symptom of addiction. How much better off could I be now if I had known to seek treatment for the compulsion to grow my hair long, wear t-shirts with pseudo demonic imagery, and give myself whiplash while listening to music at an unhealthy volume? It's a relief to hear from a Swedish psychologist that it's not my fault. Now, I just need to find a way to overcome this handicap and maybe someday I will be able to lead a normal, healthy life.
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I would like to vote this as the most insightful comment of the week, even if it's already in the favorite posts.
I see a lot of this in the arguments of copyright extremists. They're inflicted with a belief that copyright was created for the artist, even though it's quite clear in the constitution that it's to promote art and science for all. Whether or not you feel that artists have a right to have their ability to profit protected is completely immaterial to the intended purpose.
Anyone who reads my comments will have heard me say this often, that copyright is not for securing profit for the artist. Rather, it is for providing the opportunity to profit to give incentive to create art. It's important to make that distinction because copyright does not promise that you will get paid for your art, that's for the artist to solve with an effective business model rather than government protections. Copyright only intends to prevent others from competing with you with exact copies of your expressions.
When making laws legislators need to consider the impact and unintended consequences of those laws. They also need to ask, "Does this benefit the welfare of everyone or just an elite few?" If the latter, you're probably doing something wrong. Also, I would add that in addition to "equal protection under the law" that it should be written that no law may take from the many and give to the few. If it doesn't benefit us all without hindering other liberties, it's not a just law.
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Copyright should benefit all, and not just the artist or the copyright holder. Sadly the scales of justice in copyright's case has been pushed in the wrong direction.
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The people pay through the nose for the expense of enriching the press (monopoly priced copies, loss of cultural liberty, cultural loss through lost opportunity), and an enriched press is a beholden press. And a beholden press is quite happy to protect the state that enriches it. Though these days, it is more a case of an enriched government is one beholden to protect its lobbying publishing corporations.
It is just as foolish to support copyright in the belief it helps the people as it is to support it in the belief it helps the artist.
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I agree with your sentiment and I don't support copyright, I'm only dispelling the foolish notion that it was made to provide a protected model for artists to earn a profit.
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Copyright is not conceived or written in the US Constitution, nor even referred to.
You can find these answers at http://culturalliberty.org/blog/index.php?id=276
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Most assumed it did of course, so didn't bat an eyelid when the Statute of Anne was re-enacted by the US.
It is strange that however unjust copyright demonstrates itself to be that people refuse to believe it wasn't granted by the Constitution.
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This debate is rather pointless in any case because the fact remains that no type of copyright should exist because it fails to serve the welfare of everyone, as it only serves the "rights holders".
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The exclusive right (not rightS) that the Constitution empowers Congress to secure already exists. It is not referring to, and could not refer to, a privilege yet to be granted (copyright).
There is no implication by the Constitution that Congress can grant monopolies (the Constitution is explicit - it is dangerous to permit Congress to assume power via implication). The idea that the so called 'copyright clause' implies Congress can grant monopolies is implanted in the naive via indoctrination, brainwashing, especially when cartel lawyers prefer to describe copyright as an 'exclusive right' (rather than a state granted privilege).
Even you talk about 'rights' expiring, so you should recognise this bug in your language/thinking. Rights do not expire (unless you're talking about privileges - described as 'legislatively created rights' or just 'rights' for short).
You also admit that these 'rights' are held. If you recognise that people are born with inalienable rights (not held or transferred), then you must also recognise that what is held is not so much a right as the annulling of a right, i.e. a privilege. The right to copy exists in all the inhabitants, but the 1790 US Copyright act, by annulling the right to copy in the majority, leaves it, by exclusion, in the HANDS of a few. That's why 'copyright holders' are so called, they hold in their hands a right that has been legislatively annulled in the majority. Even so, as millions of infringers have discovered, they still possess the natural right to copy despite it being annulled in law.
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If you've grown up with 21st century English and its corruption of 'right' to mean a state granted privilege, you'll have difficulty recognising the natural meaning of the term in its 18th century context.
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Copyright is not a given and it's actually harmful to promoting the progress of the useful arts and sciences. I assume we both agree on that? Perhaps I'm wrong about certain details, but I do think we are both on the same side of the debate over whether copyright should even exist.
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Remember, Jefferson actually suggested including an explicit grant of monopolies in the Bill of Rights (Constitutional amendment). Why would he have suggested that, if power to grant monopolies was already Constitutionally provided? Madison didn't adopt his suggestion because he knew that monopolies couldn't be granted by a Constitution/amendment (or would soon be repealed), that they would stand longer if power to grant them was inferred.
An author's exclusive right to their writings is the same as any individual's right to exclude others from their diary and any other private manuscript they would rather others couldn't read, copy, or otherwise distribute. This right is natural, and the only one the Constitution can recognise. Even in England there was an attempt to confuse this right with a printers' guild reproduction monopoly, even to suggest that such a monopoly was perpetual, but that copyright actually reduced it for the public good (preposterous!).
Although we may both agree that copyright is an ineffective anachronism to be abolished, and concur with Thomas Paine that such privileges are instruments of injustice, it remains important to explain to people that copyright is not a natural right, was not actually recognised by the US Constitution, and should never have been granted in the first place - despite its seductive allure. This helps explain why it should be abolished as an unethical privilege, and that as such it can not be reformed. It is not a matter of shortening its term, reducing statutory penalties, expanding fair use, or permitting format shifting. The entire statute is an abomination.
That said, there remain natural/moral rights relating to intellectual works (natural exclusive right, truth in authorship, representation, integrity, etc.). Congress does and should have power to secure an author's (natural) exclusive right to their writings, i.e. against theft (copying by a burglar, etc.).
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But this might confuse the argument somewhat. What most maximalists are implying is that very notion that others are stealing works without compensation. It's a poor argument, but it's still.. Somehow, the artist is supposed to be given higher rights in this context, which in the digital era makes no sense. No one is defined by just one aspect of their being. The pirate of today, may be a creator of tomorrow, given the building blocks that are available.
It's better to take the pieces in stages:
Natural exclusive right - If someone doesn't want their work used in various ways, then they shouldn't put it on the internet.
Truth in authorship - plagiarism laws seem silly. They are a western notion but not necessary as evidenced in patent law. Sure, accreditation is a great feeling, but there are other factors that keep plagiarism out of favor (social mores, expectations, etc).
Copying against a burglar - This is the problem nowadays with copyright infringement as it stands. People will say that it's all about how the copying is regarded as theft, since there's really no other term. Without proving that the copying is hurting anyone economically, it's become very difficult to understand this battle that we have for the bittorrent libraries on the internet today.
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Similarity in such a case may be grounds for a patent claim, but it doesn't actually cause one work to interfere with another in terms of authorship or anything else (aside from who was first).
Plagiarism is when you falsely claim to have produced another's work.
An individual's exclusive right (aka privacy) is the only natural means they have of exchanging their work, whether material or intellectual. Abolishing the unethical privilege of copyright should not be seen to invalidate law to protect the individual's natural exclusive right.
Yes, it's possible to steal intellectual work via copying (via burglary). I'm not going to ignore the flaws in counter-copyright aphorism just because it's counter-copyright. That a burglar leaves an author with a copy of their manuscript doesn't negate the violation of the author's natural exclusive right in making and taking a copy.
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Inalienable versus legislatively created rights
(Having said that, I know I personally use the wrong word often when trying to express a point. It might seem pedantic when someone corrects me, but I do appreciate it.)
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In the case of copyright it is an intentional misrepresentation to attach morality to stifling competition. It was about competing ideas in the beginning and became about competition for commerce later on.
Even though I disagree with his legal rationale, I completely agree with Crosbie Fitch about the illegitimacy of copyright. If there is some need for the government to support artists (there isn't BTW), we should do so by subsidizing them, not penalizing their competition. Even if what we were really doing now actually had the result of rewarding artists, the means would still be dishonest, unethical, and generally harmful to a free society.
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It seems we come to the same conclusion by differing means. Copyright is not necessary. It's a grant, not a right. The constitution does not guarantee anyone "copyright". No law can restrict my right and ability to copy nor restrict it for anyone else. Nor should it.
Nevertheless, I still hold to the belief that the first American copygrant law was enacted, naively, to give incentive to authors to create more works through an opportunity to profit by an exclusive temporary monopoly to expand the public domain's library of free (as in liberty) works. It was a huge error in logic to think that any author should have such an inequitable privilege. As I have said in the past, copies are not what the artist sells, it's his labor that is the good people pay for. Art is a service, not a product.
The intent doesn't really matter anyway in the context of whether such a law should exist at all (which it shouldn't).
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copies are not what the artist sells, it's his labor that is the good people pay for.
It is certainly a service, but what the consumer pays for is what he gets out of it, not what the creator puts in. They may seem like the same thing, but they aren't. The artist puts in time, effort, and creativity. The consumer gets enjoyment, entertainment, education, and similar things.
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I don't think art is a product if the labor that created the first isn't required to create subsequent copies, that better fits a service. Alternatively, a blender is a product because it requires additional labor and materials for each and every blender made. So it would stand to reason that art is a service and people pay artists to create. Sure they're seeking a specific piece of work, but to say that art is a product is to say construction is a product.
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This is what I think so many people miss and so many get wrong about economic value, it's that the scarce good isn't the art or the blender, it's the labor that created it. Your time has an opportunity cost to you. If you spend it making art for someone, you want that time paid back to you or else you're better off spending that time on something else that enriches you. When time is spent, it is gone. You can't get it back. Products can be recycled, ideas can be remixed, but labor is finite and when the moment is spent, it's gone. It cannot be reused, recycled, or undone. That is the what people pay for. They offset their opportunity cost to others by way of buying their labor. Some labor is valued and priced higher than others. If people could learn to monetize the labor, they'd be a whole lot better off.
Products are really just a storage medium for labor. X amount of hours and Y amount of materials (which were acquired through labor) equal Z product. It's a simple solution to a complicated problem. Everywhere you go you're trading labor for labor.
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Copyright is not conceived or written in the US Constitution, nor even referred to.
You can find these answers at http://culturalliberty.org/blog/index.php?id=276
The problem with the page you link to is that it makes assumptions which are not supported by history. It is accurate to say the authors of the Constitution were informed by, and largely agreed with, Paine's writings and philosophy. It is a logical fallacy to suggest that means their opinions were identical to his, or that all we need do to correctly interpret the Constitution is use the filter of Paine's writings. If you want to know how Jefferson and Madison felt about copyright, you need only consider their own words.
Jefferson's writings on the subject clearly show that he saw through the rationalization of copyright and understood its real impact on society. However, he also acknowledged that it was society's choice to make. Jefferson also believed that it was possible for patents to be good for the country. Madison apparently believed in both copyright and patents without Jefferson's reservations.
Arguing that the Copyright Clause is not really about copyrights because Thomas Paine didn't believe in them is revisionist history on the same level as claiming copyright is intended as a protection for artists.
Furthermore, even if Jefferson, Madison, and others felt the way you suggest, their opinions also do not give us a complete perspective on the meaning of the Constitution. The Constitution carries the weight of ratification by numerous people. It is their common understanding which must be considered when we try to decipher the meaning of the text, not just that of particular people who were directly involved in writing it. As Madison's comments show us, the usefulness, and even necessity, of copyrights and patents was accepted by people of the time (or at least members of the merchant class). Short of specific evidence that the majority of people who signed the Constitution believed otherwise, the Copyright Clause clearly empowers Congress to grant copyrights and patents.
And despite your claim to the contrary, US law adopted most of Britain's common law traditions. There were exceptions, primarily where the Constitution disagreed with British tradition, but on the whole, their legal tradition (prior to the revolution) is also ours. This was completely intentional. The Founding Fathers were not trying to break with that tradition, but rather improve on it.
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Madison may have said that - but he was most likely incorrect.
Hinton v Donaldson clearly rejected the idea of a common law copyright.
The subsequent case in the House of Lords is usually reported as supporting the idea of common law copyright - but recent scholarship questions that interpretation, suggesting instead that "the House of Lords, in line with the majority of the law lords who spoke to the issue, rejected the argument in favour of common law copyright, but that the significance of this decision was nevertheless obscured as a result of the manner in which the opinions of the judges and the law lords was subsequently recorded and reported."
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Of course Madison wanted to insinuate that the clause would empower Congress to grant copyright, but it did not actually do so, nor could it.
And Thomas Jefferson wringing his hands over patents is entirely unrelated to the clause - especially given the clause was drafted in 1787 - a tad earlier than 1813.
Be careful to distinguish between opinions/statements concerning the granting of monopolies and opinions/statements concerning the Constitutional clause. They are quite distinct concerns, even though monopolists since would like to conflate the two.
The Constitution is a provision of strictly limited power from the people to Congress. As such it must be explicit. Congress cannot interpret it as ambiguous or aspirational in order to obtain more power than that which is explicitly provided.
Our distorted 21st century language may well tend to distort our modern interpretation, but the Constitution must be read with 18th century English and terminology.
The Constitution could not provide Congress with power to abridge the people's liberty.
This is why there is an apparently unresolved conflict between freedom of speech and no law abridging it - which resolves when you recognise that 'exclusive right' is a natural right.
It is possible that you have been educated with a revisionist interpretation - more likely given extreme interest by the copyright & patent lobby to establish their privileges as Constitutional.
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In any case, our disagreement is purely academic since there is no chance interpretation of the Constitution will not be rolled back whether you are right or wrong. It would be more useful for those of us with a like mind about the harm copyright does to concentrate on our common ground. Especially since you and I are exactly the people who are being used as an excuse for all this "protection," which we neither want nor benefit from.
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Madison wrote the clause.
Madison wanted copyright (& patents) granted.
Madison knew the clause, in the form of securing a (natural) right, would be unchallenged by other Framers.
Jefferson suggested explicit granting of monopolies - Madison ignored that.
Congress/Madison re-enacted the Statute of Anne, the privilege of copyright.
If the clause had empowered Congress to grant copyright it would have done so as clearly as it empowers Congress to grant letters of marque. But then, such a grant of an instrument of injustice (not even for use against a wartime enemy) would not have been ratified. Madison had to write an ethically innocuous clause in order to later insinuate sanction for the unethical privilege he intended Congress/himself to assume the power to grant.
If you read the clause with Paine's semantics (rather than our modern copyright indoctrinated ones) then Congress has no power to grant copyright.
It takes extreme wishful thinking to misinterpret power to secure a right (to exclude others) as power to grant a privilege, power to annul a right (to copy a published work in one's possession).
But, this wishful thinking has been drummed into anyone likely to appraise or question copyright at the earliest opportunity to ensure they accept copyright's Constitutional sanction as unassailable.
It's called the copyright clause for a reason.
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You keep claiming that, but you provide no evidence to back your assertion. The fact that most of the founders generally agreed with Paine does not prove that they agreed with every specific of his beliefs. I agree with Mike Masnick in a general sense. Does that mean I must agree with him on the whether George Clinton has a case against his lawyers? Clearly not since I specifically disagreed with that conclusion above.
But we do not need that knowledge to be sure your interpretation is wrong. If, in fact, the Copyright Clause referred to a natural right it would be nonsensical to qualify it as only applying to a limited time. Nor would it make any sense to say it is intended specifically to promote progress since a natural right is its own end and needs no governmental purpose.
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Very good points.
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The clause cannot refer to any other kind of right because no other kind of right exists in the context of the Constitution - it can only refer to natural rights because only natural rights exist.
What promotes the progress is recognising this right and empowering Congress to secure it (for a time limited to the duration of the natural being in possession of it).
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I daresay it would have been far better if the clause had been struck off and Jefferson's suggestion of empowering Congress to grant monopolies in the Bill of Rights had been adopted. At least then, the monopolies could be more easily repealed in a further amendment, as with the 21st amendment's repeal of the sumptuary law of the 18th.
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Now I need to go throw up because your legal merry-go-round made me nauseous.
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Now I can finally quit my day job as Pandora's "recommendation algorithm" and start writing for TD full-time!
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Ha. Marked as funny.
btw, how much longer do you think your wife is gonna want to be tethered to a non-contributing member of society like yourself?
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How do you figure? Because the recording industry *finally* licensed a semi-decent music service a dozen years after we suggested that was a smart move? Because of that, we don't need any more discussion of better business models?
Not sure I follow...
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That shows everybody that piracy is not a real problem and that if you do it right you can actually make money without having to force others to pay up.
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Boring....
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Keep Out
I think you're speaking of the little people, and that's the whole point. The legal system is designed to be used *against* the little people, not *by* the little people. That's why it's so expensive: to keep them out. Otherwise the system would be clogged by the little people and their little problems.
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Sorry, but that doesn't prove the "we shouldn't have to be business men" argument is not valid. It proves it is not pragmatic. Very different things.
Look, in an ideal world musicians should be able to get on with just making music and not have to care about the money 'cos it'll all be fine. But today, they can't - they have to spend as much time watching their backs and getting the business side right. This is true in a lot of walks of live, and I think that's a shame.
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You are mistaken. What Clinton's career shows is that musicians run a business. They are contractors. If you are a contractor, you need to be a business man.
Look, in an ideal world musicians should be able to get on with just making music and not have to care about the money 'cos it'll all be fine. But today, they can't - they have to spend as much time watching their backs and getting the business side right. This is true in a lot of walks of live, and I think that's a shame.
I keep hearing this, but have yet to hear any rationale beyond, "because they're artists." In most cases, the arguments are more like yours, which is to say there isn't one. They shouldn't have to be business men just because. If you have something more enlightening I would love to hear it.
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How in a million years would dorks like these ever have a worthy opinion about artists?
Remember high school? And before that?
It's not like these clowns are all of the sudden going to be hit by lightning and get it.
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Yourself included.
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It's not only true in a lot of walks of life, it's true in all walks of life.
Everyone who is gainfully employed by another has entered into a business agreement with their employer. It's always up to the individual to watch their own back, no one else will. From the minimum wage dishwasher all the way up to the six figure CEO's.
That leaves those who work for themselves, either as a business owner or contract worker. Obviously, both of those involve making business decisions all the time.
Not sure why any artist would get a free pass on this just because they are an artist. If an artist chooses not to deal with the day-to-day business decisions, it's still up to the artist to make a smart business decision on who will make the other business decisions.
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I'm sorry, got distracted by the hungries.
Part of being a human is discovering your peculiar strengths or weaknesses. Math and finance are not in my personal repetoire of strengths, so I realize I must leave such things in the hands of those I trust to check my work and do my taxes. It is a leap of faith sometimes, but doesn't alleviate my responsibility to myself and my family to watch the watchers as best I can.
"But I'm an artist!" doesn't give one leave to chuck all personal responsibility to the law or the wind. I have family members who are accomplished and performing musicians but have regular 9-5 jobs to support themselves and their families. Another is a multi-media artist whose irresponsibility with money (in service of her art) has resulted in too many infuriating bailouts. I dabble in artistic pursuits myself but realize that I cannot just throw all personal responsibility to myself and others onto someone else's shoulders.
Copyright isn't government mandated welfare for artistic types, nor does it instruct on business models.
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And you know what? They are partially right: there will always be people like that. But the fact is, they are probably going to have to sacrifice material prosperity for their art, just like so many famous artists have in the past, often dying in poverty before their genius is recognized. Perhaps it's a shame, but to me it's all part of the same romantic notion.
If an artist wants to be a career artist, they are going to need to have some business skills. If, on the other hand, they believe they are pursuing a much higher calling and can't be trifled with those concerns, then that's awesome and I fully support them - but they have to be prepared to live that life, and not expect the world to just throw money at them.
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The argument has always been about using the various tools to your advantage. Where the main problem lies is in how people believe that corrupting those tools for control, or putting things out willy-nilly will somehow lead to profit.
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I think you're right. In fact I find myself making exactly those types of decisions every day. I don't get paid for the quality of my work. I get paid for its value in attracting website visitors. I have to find an acceptable compromise between what I want to create and how much work I can justify for the money.
I could be in it purely for the art, and not make any (or much) money. I could do it purely for the money and make art I wasn't particularly proud of. I choose to find a happy medium where I can afford to be a professional and still consider myself an artist. My business suffers for my art and my art suffers for my business. It's not a perfect arrangement, but it's the most acceptable compromise I've been able to find.
Going back to George Clinton, he decided not to compromise his art. He spent big on the best musicians, lavish recordings, and over the top stage shows. When he got into a dispute with his label he would just rename the group (The Parliaments, Funkadelic, Parliament) and start over. On one hand, I admire him for that. On the other hand, I have little sympathy for the consequences that came with avoiding the hard decisions most of us have to make.
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[Off Topic]: Your phrase:
...unfettered, free-spirited artist who sees things we don't and thinks about things in a different way than the rest of us.
reminded me of one my all time favorite fantasy adventure novel series The Chronicles of Thomas Covenant the Unbeliever by Stephen R. Donaldson. Now I am gonna have to try to find the time to go back read them all again. Thanks :-p
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Good post, but ...
I realize that, generally, there are more important functions where abuse may occur, but that does not excuse attorneys from meeting high ethical and professional standards.
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Re: Good post, but ...
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