The Good And The Bad Of The New OPEN Bill From Wyden And Issa
from the some-good,-some-bad dept
Sen. Wyden and Rep. Issa have released a draft of OPEN: Online Protection & ENforcement of Digital Trade Act, intended as an alternative to SOPA/PROTECT-IP. See my prior posts opposing SOPA and linkwrapping the discussion. Unlike SOPA's disgustingly blatant rent-seeking, which was such an over-the-top abuse of the legislative process that it did not (and could not) support a principled or even intelligent conversations about it, OPEN provides a useful starting point for a sensible conversation that could actually lead to acceptable compromises. For that reason alone, I think Congress should immediately stop all work on SOPA/PROTECT-IP and redirect that energy towards vetting this proposal. Having said that, for reasons I'll explain in a moment, I continue to believe the assumptions underlying SOPA/PROTECT-IP and OPEN are misguided, meaning that forging a compromise from OPEN's more sensible proposal may be tricky.
Before I get further into substance, two process notes:
First, SOPA was the product of rent-seekers who were talking only amongst themselves and legislators tethered to their campaign contributions. The drafting process was disturbingly closed-door and exclusionary, exactly the kind we wish didn't take place in our representative democracy. In contrast, the OPEN sponsors want to have a dialogue about their ideas. In support of that, they have posted the draft to a website that allows comments and discussion. This is the way our democracy SHOULD work. Why is such an open process the exception instead of the rule?
Second, OPEN is a comparatively svelte 18 pages focused mostly on one core concept, compared to SOPA's 78 page monstrosity that advanced about a dozen different substantive proposals. I can't tell you the number of times I've seen very smart people stymied to keep all of SOPA's moving parts separate, and the failure to do so meant that they were conflating different parts of the statute in ways that prevented productive discussion. (Just two examples: the Colbert Report, where Zittrain mostly focused on SOPA's felony streaming provision while his counterpart was mostly talking about the cutoff provisions; and Business Insider's infographic where the felony streaming sanction was presented as a remedy to the cutoff provisions.) By reducing the number of topics at issue, OPEN substantially reduces the chance that policy discussants will simply talk past each other.
An Overview
The law contemplates that rightsowners can file a petition against rogue websites at the ITC, an independent federal agency best known for its adjudication of certain patent disputes. In response to the rightsowner's petition, the ITC will conduct an administrative adjudication. If the ITC determines that the website is a rogue website, then (1) the website is required to cease its conduct (not sure how enforceable that is), (2) the site also will be subject to any other unspecified consequences following from its determination as a rogue actor, and (3) most importantly, the rightsowner can take the ITC determination to payment service providers (PSPs) and ad networks and have them cut off the flow of money to the rogue website. The PSPs and ad networks would be protected by several immunities for trying to comply with the orders or their other efforts to protect the public.
This makes OPEN similar to SOPA in that it seeks to cut off funds flowing to rogue actors. However, among other key differences, PSPs and ad networks have no legal obligations until the ITC makes a ruling. In contrast, SOPA imposed cutoff obligations on PSPs and ad networks based merely on rightsowners' unsubstantiated assertions.
What's Good
Substantively, some of the things I liked about OPEN:
* it situates the discussion about "rogue websites" in foreign trade policy. This fixes SOPA's overinclusive application to both domestic and foreign actors. However, if we really think rogue websites are a transborder enforcement problem, there are many other trade policy solutions that might be better options to consider—the most obvious being transborder enforcement coordination like the FTC does with its foreign counterparts.
* OPEN doesn't touch the domain name system or search engines. SOPA had the potential to destroy the DNS and to jeopardize search engine functioning. OPEN sidesteps both pitfalls.
* OPEN builds in some due process before any formal legal obligations attach. As we've recently seen, due process is actually quite important, and we suffer from its absence. I say "some" due process because I'm not sure how much due process will attach in practice. For example, I have some concerns about the notice provision--not every targeted website will receive notice of the ITC investigation. However, I did like that any website the ITC labels as rogue can correct any identified problems, reapproach the ITC and ask it to remove the "rogue" determination.
* the definition of rogue website is tightened up substantially. It requires three elements:
a) a "non-domestic domain name," which requires that the registry, registrar and registrant all have to be located outside the US (I'm not sure what "located" means in this context). Venkat asked me what happens to a .com registered with a foreign registrar; I believe OPEN does not apply to this domain name.
b) conducting business in the US; and
c) "has only limited purpose or use other than engaging in infringing activity and whose owner or operator primarily uses the site to willfully engage in infringing activity."
The last element, in particular, is quite restrictive by requiring willful infringement. The meaning of the word "willful" is notoriously murky (see, e.g., the multitudinous Supreme Court cases over the word), so the statute would be improved by using a more detailed synonym. No matter what, though, willful is a high scienter level that should easily exclude most legitimate players. The statute further expressly excludes any sites that:
- follow good notice-and-takedown procedures
- qualify for 17 USC 512 (the DMCA online safe harbors) [this means that the statute sits next to 512 instead of rendering 512 moot like SOPA threatened to do], or
- distribute "copies that were made without infringing a copyright or trademark." I'm not 100% sure what this means. It apparently excludes websites reselling goods covered by the First Sale doctrine. I presume that the exclusion includes sites that sell legitimate knock-off goods, such as replicas of goods that aren't protected by copyrights or trademarks.
* if a PSP or ad network fails to comply with an ITC order, the only consequence is that the DOJ can seek injunctive relief. Rightsowners do not have a private cause of action in those cases. As discussed below, this doesn't eliminate all PSP/ad network exposure to rightsowners, but rightsowners can't introduce evidence of ITC orders in any civil suits they bring against PSPs or ad networks.
* on the trademark side, it expressly limits its applicability to counterfeiting (although there is an erroneous cross-reference in the draft). Presumably, dilution or garden-variety trademark infringement disputes don't qualify under the statute.
What's Not Good
Substantively, some of the things I don't like about OPEN:
* OPEN still contemplates reestablishing a Fortress USA. Fortress USA marginally makes sense regarding the shipment of physical goods across geographic borders. It makes zero sense for digital bits zinging around the borderless network.
* in particular, because OPEN would burden only US-governed PSPs and ad networks, it may drive websites—including legitimate websites who want to reduce their risk of being mistargeted—to shift their business to foreign-based PSPs and ad networks. If lots of businesses make a switch based on these concerns, OPEN could counterproductively result in net financial losses for the US economy.
* similarly, foreign websites can opt-out entirely of the ITC process by consenting to US judicial jurisdiction. I like the idea of an opt-out, but imagine if other countries offered the same quid-pro-quo of allowing US websites to opt-out of some nasty foreign process so long as the websites consent to jurisdiction in their countries. I think we'd be outraged and insulted; which is how I would expect foreign countries to view this quid-pro-quo. Cf. Venkat's recent post on Facebook v. Faceporn. Then again, other countries might think it's a pretty good idea, leading to a proliferation of transborder quid-pro-quo jurisdictional offers.
* designating the ITC to conduct the investigations is a little odd. First, the ITC is an administrative agency, not a federal court. I don't fully understand all of the implications of administrative vs. judicial review, but I believe there are substantial procedural differences that could lead to important substantive differences. Second, the ITC has been gamed in the patent world (see, e.g., my colleague Colleen Chien's research on the ITC explaining how the ITC hears many US company vs. US company disputes), so I fear similar gaming will emerge. For example, a rightsowner chasing a rogue website could simultaneously pursue a domestic court action, a foreign court action and an ITC proceeding. How would these types of parallel proceedings play out in practice? We're still trying to resolve the parallel proceeding problems in patents.
* like SOPA, the bill covers copyright infringement, trademark infringement *and* 1201 circumvention. I don't understand why the circumvention issue is getting equal billing or how often transborder circumventions are a real problem. Seeing how 1201 circumvention lawsuits have devolved into anti-competitive enforcements, picking up the circumvention piece could increase the risk of competitive misuse of the statute.
* like SOPA, the definitions are vague. Consider, for example, the definition of Internet advertising service:
The term Internet advertising service means a service that serves an online advertisement in viewable form for any period of time on an Internet site.
Hmm...what does that mean? Notice that the definition doesn't directly distinguish between third-party ad networks and sites that sell their own ads. I think in practice sites that sell their own ads drop out of the statute, so one possible implication is that more sites will ramp up their own ad sales. (This is doubtful, but just throwing the possibility out there.) I think the focus on "viewable" is interesting; are audio-only ads excluded? And what does it mean to "serve" content? This contemplates a specific technological interaction that I don't fully understand today and will almost certainly evolve over time.
Why I'm Not Enthusiastic About OPEN
Even though OPEN is worth discussing intelligently, unlike SOPA, I believe it's based on two underlying assumptions that aren't fixable.
First, like SOPA, OPEN assumes there is a problem with foreign rogue websites that needs to be solved. I'm not saying there isn't, but the policy discussions have been startlingly devoid of reliable and credible facts demonstrating the nature and scope of the problem.
Instead, the evidence in support of a rogue website "problem" typically consists of two main threads: (a) people are dying from counterfeit drugs, and (b) bad guys are "stealing" our stuff. With respect to the former, I've never seen anything more than ad hoc assertion; but if there's a real problem, counterfeit drugs can be fixed with a highly targeted solution. With respect to the latter, it's hard to give those arguments much credit. After all, all rightsowners' arguments are inherently self-interested: it's in their financial interest to say that they would like to make more money than they are making. It's also in their interest to bemoan broad sectoral changes in the economy as evidence that someone is capturing money they think they are entitled to (and to use rent-seeking to thwart those broad sectoral changes). More importantly, there is lots of evidence that a lot of rightsowners are making a lot of money today, both via the Internet and more generally. So it's hard to break out the quantity of actual economic losses that rightsowners are truly suffering when those claims are intermingled with rightsowners' general rent-seeking efforts.
Therefore, until the rightsowners offer us more than the trumped-up BS already-discredited statistics, I'm still not clear on the problem, how bad it is, how any legislative solution would remediate that problem, and if the collateral consequences of the effort to remediate the problem are greater or less than the problem itself. OPEN does nothing to fill the void of supporting foundational evidence of the problem, so it's hard for me to be enthusiastic about its solution.
Second, and more importantly, attacking the money supply to supposed bad actors remains too blunt an instrument. I may be truly on my own on this point, as many people I respect--including, notably, Rep. Lofgren--are prepared to embrace the policy solution of cutting off money flows. However, by embracing an attack on the movement of money, OPEN replicates one of SOPA's sins. If a player is engaged in legitimate and illegitimate activity and its money supply is cut off, both activities go down the tubes. In contrast, one of the positive aspects of 17 USC 512(c) and (d) is that they require the copyright owner to identify infringing items and target only those items. Giving rightsowners a remedy that would affect an entire site for only some items on the site goes too far.
The OPEN bill tries hard to minimize overbreadth by narrowly defining the targeted websites. Perhaps this definition is narrow enough that there won't be much collateral damage. However, in practice, regulating money flows nevertheless could have pernicious effects in the field. A PSP or ad network drawn into an ITC proceeding frequently will "voluntarily" choose to toss the targeted website before the ITC proceeding reaches its conclusion—even if the ITC proceeding would have rejected the challenge. Furthermore, rightsowners still will send cutoff notices to PSPs/ad networks without filing any ITC petition, and the PSPs/ad networks will often honor them as a way of preempting an ITC proceeding.
What this teaches me (in combination with the Elsevier v. Chitika case) is that PSPs and ad networks need robust statutory immunities which are not based on a notice-and-takedown scheme. On the trademark side, the need for an immunity became clear after the sloppy language in Gucci v. Frontline. On the copyright side, 512 doesn't cover PSPs and ad networks, probably because in a million years the safe harbor drafters never thought PSPs and ad networks would be liable for third party infringing activity in the first place. Now that we've seen copyright law and trademark law creep much further than we could have imagined in 1998, we should plug this liability hole completely. If OPEN proceeds, it should have a broad-based immunity for PSPs and ad networks with the idea that rightsowners are getting a specific remedy against them in the new law.
While OPEN can't really be fixed to resolve my two structural concerns, my hope is that the discussion about OPEN will force rightsowners to provide *credible* evidence of harms that they or consumers are suffering (no more self-serving hype, please), and that such evidence will force us to think carefully about how "rifle shot" solutions (as opposed to shotgun solutions) can ameliorate those harms. If we have a discourse that even slightly resembles this ideal, then OPEN will be successful no matter what final outcome we reach.
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Filed Under: copyright, darrell issa, itc, open, pipa, protect ip, ron wyden, sopa, trademark
Reader Comments
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Mostly because he can't read who the author of the article is.
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That's the same fallacy; if you only whitelist a couple of groups, the leeches will just target new ones. The law should have extremely clear language against third-party liability itself.
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How to Watch TV Online for Free
How to Watch NFL Football Games Online For Free
P2P streaming is getting bigger that means no centralized server to seize, which means things are about to get interesting, with anyone having the ability to stream TV directly from the TV to the internet, this could become a problem.
Imagine a Chinese guy, with an American friend and they both agree to stream live TV, the American send the stream to China through an encrypted VPN tunnel and the Chinese guy streams it through P2P streams, everybody starts to receive TV streams and the US government can't do nothing about it, I bet Russians would love to help, so would a lot of Latin American countries not to mention Europeans.
How is this proposal deal with something that have nothing to be seized? can jump from one place in the world to another in the blink of an eye and have a billion strong participants?
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baby on the left: Really?!
baby on the right: Really?!
baby on the left: I can't be?!
baby on the right: Really?!
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More reasonable proposals
Senator Leahy comes up with an extreme proposal. Then the House gets into the program with even more extreme proposal. There's some public uproar and opposition. Now, Senator Wyden comes up with the beginning of something reasonable: Something more sensible. Something that people can compromise on.
Does Congress really deserve a 9% approval rating from the American people after showing work like this? They're really doing their best.
How about we roll back the term of copyright to 28 years. Yeah, that would require abandoning Berne. But fuck Berne. It was a mistake and we never should have agreed to it.
Oh, wait. You mean copyright only ever ratchets one way? It turns out the regime can only ever move in one direction. Over the long term, the laws can only get more draconian. Never less. That's the process.
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You pretty much have to have you head in the sand to even be stating this. Clearly there is a problem of rogue websites outside the US - just consider that there are almost no (public) piracy sites in the US, yet piracy is a huge issue in the US. If the sites are not based in the US, where are the based?
I think that if you cannot see the problem, all solutions will seem like overkill.
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Cash is made by the federal reserve (is it?) so we should hold them responsible for the infringement unless they prevent cash sales.
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You can't show harm so cease and desist with the BS.
You can't show less spending so cease and desist with the BS.
You can see that downloading is complementary to spending, but you won't see it if you don't take your head out of the sand.
Explain why so many serious studies done from governments in Japan and Europe say exactly that download is not a huge problem, people are not choosing between the two they are doing both so how is that a problem?
Oh yah baby there is no problem.
The only problem that we have is copyrights that is a huge problem, because every monopoly is a problem and that one has gone out of control a long time ago.
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http://www.techdirt.com/articles/20110204/23401312975/japanese-government-study-shows-ani me-piracy-could-boosts-sales.shtml
Quote:
http://www.gadgetell.com/technologytell/article/swiss-study-shows-that-illegal-downlo ads-lead-to-sales/
Downloading is rampant, so is radio listening or watching TV, if downloading stop anybody from buying anything Theaters would be screwed since everybody can just wait a bit and have a copy cheaper.
The thing is you have only hearsay to show and nothing concrete, you can't prove harm, you can't show people spend less, you got nothing except a big mouth.
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http://www.myce.com/news/study-shows-internet-piracy-actually-benefits-anime-sales- 39639/
http://venturebeat.com/2009/04/21/study-finds-file-sharers-buy-ten-times-more-music/
ht tp://www.independent.co.uk/news/uk/crime/illegal-downloaders-spend-the-most-on-music-says-poll-18127 76.html
Music Purchases and Net Revenue For Artists Are Up, Gross Revenue for Labels is Down
The analysis below points to numerous other studies pointing out how file sharing has no negative effects on music sales.
http://musicbusinessresearch.wordpress.com/2010/03/29/the-recession-in-the-music-industry-a- cause-analysis/
In which planet piracy is a problem?
Take off your colored glasses and look at the real world with real people in it and you see there is not a problem only the one you imagined.
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There are treatments for that you know.
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I know, it is hard to explain something that one can't show or find any factual sign of it anywhere.
Unless of course you are one of the faithful.
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Do you honestly think that with record unemployment, war in Afghanistan and a global financial crisis most people give a shit about the guy that voted to keep you from downloading free movies? Good luck with that.
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Calling all my reps and senators first thing Monday.
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There are more issues in SOPA and IP Protect than just preventing someone from downloadling a movie, which it most emphatically will not, such as the threat to free speech, the deliberate breaking of the DNS system, the probable unconstitutionality of the exercise and how it will lessen the US government's long held stance that the Internet must remain open. A bat frequently swung at countries like China and Iran, to name but two. Add to that the attempt of both of those to apply US law extra-territorially through payment processors to other states.
Then again, if piracy is as wide spread and rampant as the bill's sponsors claim it is then, despite the other, more important, issues may well take second or third place to those who download from "rogue" sites offshore and make those running for re-election vulnerable at the ballot box.
Then again, if what daveshouse calls for doesn't come to pass and those involved are re-elected with wider margins maybe "piracy" isn't the problem the bills sponsor's claim it is.
Remember that these rogue sites are looking at "customers" in North America not in most other parts of the world to keep them going if they are commercial enterprises.
Keeping in mind that to people offshore both Canada and the United States are "America" and are a single market. From a marketing perspective not a bad bit of confusion as, taken together, they're looking at the wealthiest countries in the world so it makes sense to view them as a single market. Even before NAFTA and moreso after it.
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The more I consider this, given that the entertainment industry hasn't managed to come up with credible numbers to prove their sales argument is that piracy has more to do with them being afraid of losing something just as important to them, maybe more, which is the distribution channel.
If they lose control of things such as release dates, for movies the sometimes mysterious practice of releasing a movie in, oh, say New York, Los Angeles and Chicago in the the States and Vancouver, Montreal and Toronto in Canada a week or two before comparatively smaller and less influential centres then they lose something valuable. Or control over the release date of an album that they want to time for "anything but a Tuesday or Friday the 13th" or to coincide with a tour, much the same reasons for a book.
In short, copyright has nothing to do with the furor they've stirred up while MARKETING has everything to do with it. (Keeping in mind that recording companies and not the artists themselves almost always hold copyright on the performance expressed in an audio recording which they don't have to share with anyone!)
If that is the case, and I'm coming to that position more and more as I consider this, then perhaps something like the ITC is the place for the entertainment industry's constant whining MAY be justified.
As for no (public) piracy sites being in the States I agree that it's easier for operators to locate offshore in order to avoid the legal restrictions of current law like DCMA but that doesn't mean that none exist.
Again, though, the entertainment industry has yet to PROVE with credible figures that the problem it claims exist does, in fact, exist with respect to it costing them a drop in sales and related income. It could just be that the product is crap. I could be a more complex combination of the two. Or is could be as simple as boomers, as we age, just aren't spending on their product(s) in the volume we once did. Or a complex mix of all that and more. Of which piracy is but a small part.
Eric's statement doesn't deny that there may be a problem. He's saying that there's a definite argument that it's a problem that needs fixing as every indication is that people who download things like "pirated" music tend to buy later and in large numbers at that. The same would apply to movies and video.
That being the case then I'm forced to follow the circle around and come smack dab back onto the distribution channels and related marketing. Neither of which directly touch on copyright but both of which are felt to be important to the entertainment industry's notion of what their projected sales ought to be. And that industry has been able, in the past, to keep those channels locked down and almost totally closed and controlled. They're finding that they can't now and that scares the hell out of them.
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For that matter, the majority of the people in the US don't see it as a problem either. It's only a small, select group of individuals and corporations that deem it as a problem.
The simple fact is that society, via our government, agreed to provide certain creative trades a temporary incentive called copyright. Some among those creative trades (and by no means all, I know more than my share of musicians, artists, writers, even a few filmmakers, and almost none of them give a crap about piracy - and more than a few insist it actually benefits them - much less support the measures in PIPA/SOPA) have continually tried to redefine the terms of the agreement with society to increase its breadth, scope, and longevity.
The thing this groups continually refuse to accept is that, regardless of the "legality" of the agreement, it has no teeth without the consent of the other party (society). The more they have attempted to redefine that agreement (copyright) the less most of us consent to the agreement. So this group tries to force consent, which is largely doomed to failure.
Outlawing alcohol didn't stop people from drinking (I myself rarely drink).
Outlawing pot doesn't stop people from smoking weed (I tried it one time like 20 years ago, waste of time as far as I am concerned).
Outlawing prostitution doesn't stop people for paying for sex (OK, this one I do, but I don't pay for it).
Outlawing file sharing is absolutely not going to stop people from doing it (personally I don't engage in the activity myself - even despite not having the grand or two a month I used to be able to blow on entertainment 10 years ago - given that in the last 20 years I've accumulated close to 20,000 song, around 500 movies, and about 1,000 books).
The thing is, even if I still had a grand or two a month to blow on entertainment I would still be spending little more of it on the big content industries than I do now (which is as little as possible). I'd just spend more of it where I do now, on my friend and colleagues (watching their bands play, buying their CDs and T-shirts, helping them get books published and their short films made). People who don't whine to me they aren't being "fairly compensated" while 10% of the country is out of work. People who aren't trying to force my compliance to terms of legal agreements I find unacceptable (screw your 75 years, 14 years, maybe 28 if I'm feeling generous).
I think if you can see the problem, then it is your problem. Stop trying to force it to be everybody else's problem.
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Administrative v. Judicial
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Possibly one of the most ignorant comments possible.
Radio listening and TV watching are both "paid" content situations. As the end user, you pay with your attention, and the advertising that you listen to or see is what "pays" for the content.
Downloading has greatly hurt theaters, tickets sales are down, way down, and the dollar amount only maintained by increased ticket prices (especially to 3D movies). Actual ticket sales are off at an an alarming rate in the last decade.
If you are going to make claims, at least have a clue.
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Just go look at recorded music sales 10 years BEFORE Napster, and the 10 years AFTER Napster. If you cannot see how piracy has hurt, then you truly missed something.
" If you want to make the sorts of assertions that you do, at least be willing to back them up with coherent and meaningful explanations."
I would tell you to fuck off, but I am sure you would take it the wrong way. I suggest you get your head out of your ass and start looking at the real world, not the fantasy land Masnick tattooed inside your anal cavity.
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Further nobody pays for over the air TV or radio, they consume it for free so according to you morons they should not be wanting to buy anything else since they already get for free what you idiots are trying to sell but that doesn't happen why?
And you are trying to say that ticket sales are down way down in the biggest recession since the great depression?
No shite Sherlock. There are many reasons why this is, first you don't respect your customers you offend them and still want them to "buy" something from you? Look at the labels, they all will fail, and the basic fact of life is that you attacked your biggests customers, you broke the trust and people are making you pay for it now, studios seeing that are not willing to sue customers because they know it will be bad unless they do it in a matter that can't be directly linked to them hence laws like SOPA where they want others to do the dirty work and pass on the costs of doing so.
So instead of being honest and trying to add all of those factors you only scream that the problem is piracy, when you have no proof for it, can't find proof for it but has only a faith based conviction that that is the cause, I say the clueless is you not us.
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The first time I saw Napster I thought it was stealing, over the years I paid attention to the laws and it completely changed my mind, copyright is an abomination is a threat to freedom and the foundations of democracy and should be destroyed.
Good luck trying to explain to people why they should give up privacy, freedom of speech, due process so some can try to sell some more trinkets to the public.
Copyright is optional at the public level, so good luck trying to enforce that LoL
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Which diminishes the respect for the justice system in place.
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All 3 are hell to change, and that is on purpose, paralysis of the system is not something that should be viewed as bad, it is exactly how it is supposed to work, it functions as a type of filter where only those things that can show unanimous support and thus can be considered universal should pass easily the rest should pass through that phase where they either show that it is needed for the larger group or fail, the thing all 3 branches are not representing the public they are representing special interests only, this is abundantly clear by know and so the whole process is broken.
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They pay for it with their attention and their time. If advertisers were not getting a return on their investment (because viewers / listeners were not paying attention enough), then there would be no free over the air anything.
"And you are trying to say that ticket sales are down way down in the biggest recession since the great depression?
No shite Sherlock."
No dumbass, the decline in ticket sales has been since a peak somewhere around 2003.
" first you don't respect your customers you offend them and still want them to "buy" something from you?"
The movie theater deal hasn't changed in eons. It is still where you see first run, "pre-sale release" movies, always has been that way. There isn't anything in the deal that has changed to "offend" anyone.
"o instead of being honest and trying to add all of those factors you only scream that the problem is piracy, when you have no proof for it, can't find proof for it but has only a faith based conviction that that is the cause, I say the clueless is you not us."
People still want the product, they still consume the product, they just no longer feel obliged to pay for it. It seems to me that this is piracy at work. You have to have you head in the sand not to think that a significant part of the population gets their content in this manner now, without paying.
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Anyone who is an aggressive pirate is a high end fan. High end fans use to buy lots and lots of music. Now they buy less. They still buy more than the average joe, but the average includes people who don't buy any at all.
Shouldn't the biggest fans of music also be the biggest paying customers? It makes sense, no?
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You miss the point of SOPA entirely. It isn't a situation to change people's habits and methods by saying "It's illegal, don't do it" (in part because it is already illegal), but rather to make the supply harder to get, which will certainly change the habits of some people.
If the "rogue sites" that are pushing pirated material are unreachable, it makes it harder for people to find what they are looking for. If they have to spend hours to find something, if they need special software, paswswords, or have to become part of some secret society to get in, they won't both. It's too much work.
Piracy is rampant right now because it is easy, because sites that promote it appear to do so with impunity. SOPA attempts to address this issue.
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The top acts have raised ticket prices through the roof, essentially making it impossible for anyone except the well off to attend their tours. Can you imagine paying $300-$500 for a ticket to a 2 hour show, and that is the ticket price not the scalper price? That is pretty much the going rate for top acts these days. Take your date, have a couple of drinks, park your car, and you can be into the night for $1000-$1500. Holy fuck, is that a bargain or what?
What has ended up happening is that the rich get richer (isn't it always like that) and with more unknown bands playing local circuits, the poor get poorer.
NET, there is no more money in music than there was 10 years ago. Some people try to make it off like artists are making more money, but the reality is artists are getting paid often more directly, but are then paying the expenses off the back side, "out of sight" of the totals. You don't see a ton of mid range artists suddenly out living the high life off of their earnings. It just isn't happening.
You have to be wilfully blind not to see where this train wreck is going.
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Belgium recently just proved that, Sweden too, France, South Korea and Japan.
Do you need more proof of the inefficacy of such measures?
Try using StealthNet, it has build in search capabilities, forum capabilities, IM capabilities, is encrypted and anonymous.
What is the mechanism that will make it unreachable?
Napster was gone, people moved to eDonkey(i.e. Limewire), eDonkey died in most of the world, people moved to Bittorrent, now you are trying to shutdown trackers, but they don't depend on those anymore they have DHT and magnet links and decentralized search engines so how exactly do you expect that things will get harder for pirates again?
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Let it go, let it die.
But that is not true.
Music Purchases and Net Revenue For Artists Are Up, Gross Revenue for Labels is Down
A Big Music Year for Jackson, Boyle, Swift, Digital Downloads… and Vinyl?
Even the RIAA keeps bragging about how digital is booming, how they are making money and so on, there are even labels that make most of their income now from digital.
http://www.netlabelindex.com/
http://www.dreamstreaming.info/
http://www.netlabels.org /
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You don't make it harder for people to "pirate" by censoring the web, you just make them go elsewhere and create more resilient ways to continue doing the same thing.
Instead how about you go work a bit and do like these guys below, they are not complaining and they are making money out of it, of course they are not super rich, but they are doing ok.
http://www.youtube.com/user/PomplamooseMusic?blend=1&ob=video-mustangbase
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So what you are saying is that attention and time are valuable right?
Mr. Mike Masnick have been saying this for a long time now.
And you also just admitted that people can monetize free.
Also I want to point out that people pay for music every time they go to out to dine, every time they use an elevator, every time they buy something in a store that plays music they are paying for that music, every time they go to the gym and you want them to pay it again?
How many times you want people to pay for the same thing?
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But you don't really know why do you?
Prices of tickets got higher, this is a recession time, people have other alternatives for entertainment and music, tastes are changing, what was cool a decade ago is passe today, maybe people got tired of being called thieves and started really acting the role, there is a number of factors for it, that you don't want to consider even when contrary to your beliefs China has the same pattern of behavior that you call piracy and is experiencing a boom in arts, Nigeria, India, Latin America and other places all have this same pattern and instead of shrinkage they are growing markets, so maybe it is because the market you are in is in a natural contraction cycle but you don't want to acknowledge that you found your gremlin didn't you, you found a patsy to blame and that is all that apparently matters to you.
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Is not me, that I can assure you, since the Sony DRM incident, educational campaigns, rude security at theaters, crazy people ranting about money all the time, calling others thieves for things that no one should be called a thief for I'm not in the mood to spend money on those people ever.
If the industry was a girl and she kept saying to you that you was a thief and was stealing from her and call the cops, would you keep going out with her?
I'm not in the mood for psychotic relationships and entertainment is a relationship, now it is the time to find a better partner one that is not mentally unstable.
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Citation Needed
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See, that one is the "little lie". What the artists get goes up, but there is no discussion about all the extra expenses artist incur as a result. It's hard to have a valid discussion when nobody is talking net numbers.
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???
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Is that not about net numbers?
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Sadly, when it comes to artist net numbers, they are loath to put them out there in public. None of them want to admit that net, they are still making beer money.
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You mean about the same time as good quality home cinema rooms became popular in new build houses? If I just spent thousands of dollars on a home setup, you find it surprising that I use that instead of go to the cinema?
Remember, correlation != causality.
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Low ticket sales over the last decade couldn't possible be due to the proliferation of affordable home theater equipment, or perhaps due to the reduction in disposable income, because of the recession (people are trying to keep their houses, not keep the entertainment industry making record profits).
Additionally the movie theaters are hurting, not the movie studios. Movie theaters make a majority of their profits on concessions, so when Hollywood keeps making the movies more expensive for the theaters to show (requiring them to raise prices) movie goer's are having to reduce their concession spending to offset the movie costs. In the real world the value of the dollar is losing value, so we have to cut some extras out. When going to a movie, the movie cost is firm, we can't negotiate that, the concessions are easily ignored. THAT is why many theaters are hurting, not because of piracy. Oh yea, and 3D makes that even worse.
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Of course then we'd hear, "It's still bad that people are pirating!" Well sure, just as it's bad that people rob banks and steal tires off peoples cars, but we don't try to pass draconian laws that infringe on the rights of the people to stop them.
Funny thing is that the accountants of these media companies expect there to be a certain amount of loss. They factor it in. Every industry has some business they have to write off annually.
I'd be really curious to know how much that has changed for the media industry and if piracy has always been in that bucket. My guess is that there has always been a certain amount of piracy written off every year.
(for you ACs) I'm not suggesting that this justifies piracy, but rather that it unjustifies the hyperbole and extreme lobbying and laws like SOPA/PIPA.
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But, of course, that really is unfair. The people close to the process, who understand the political dynamics, have a sense of what's politically feasible: They're not trying to sell out their base. It just looks like that to the grassroots.
With copyright, a practical politician should just know that the United States is not going to withdraw from the Berne Convention. It isn't going to happen. The US isn't even going to repeal the Sonny Bono Copyright Term Extension Act. That isn't going to happen. So when ordinary people call for measures like reducing copyright terms back to what they were in the 1909 Copyright Act, the practical politicians can see that that's just not in the cards.
But when you step back from the process, what the grassroots can see is that copyright terms only ever get longer—never shorter. The system only ever gets rigged to more and more favor Disney and Hollywood. The system never gets rebalanced in favor of the public.
So it looks corrupt. It looks like the legislators are selling out their constituents.
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Are you against the supply and demand system? Given the very small number of top acts, and the millions of people who would like to see them, $500 sounds like an artificially low price, if anything. Where is it written that someone of ordinary means must be able to afford a ticket to see a world famous performer?
What has ended up happening is that the rich get richer (isn't it always like that) and with more unknown bands playing local circuits, the poor get poorer.
So when more people are getting paid to play music locally... the poor get poorer? Huh?
NET, there is no more money in music than there was 10 years ago.
Even if true, how will any law make there be more money in music? All it could do is shift the money around (which is the purpose of course: make sure all the money goes to the labels).
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Just go home. Nobody is buying what you're selling.
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Are you claiming that is not the case? If it is not corrupt, and legislators actually do represent their constituents, then why is it impossible to repeal or revise the 1976 Copyright Act?
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Well, obviously, the 1976 Copyright has been revised: The Berne Convention Implementation Act, the Digital Millenium Copyright Act, and the Sonny Bono Copyright Term Extension Act all revised and amended the basic 1976 act.
But there's a structural reason why those revisions only go towards strengthening the copright monopoly and increasing copyright rents.
The people who benefit from the monopoly and rents can come together in a focused organized group to lobby. While the people who lose —the public with broad, diffused interests— those voters, those losers, don't really pay attention to the issues until the system gets so out of whack that it's ready to collapse.
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And would you describe that as a system that isn't corrupted, and represents the will of the constituents?
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Dude. It's kind of obvious you can't sneak stuff in since they want you to buy their food. And honestly, if you actually get caught you are a dumbass. It's called wear clothes with huge pockets. xD
"tell that to the mother that was jailed for daring film her daughters birthday"
You mean the lady that was filming IN the theater when the movie was on? Maybe jail time was too much, but they had every right to ask her to leave. She was filming in a theater which is a BIG no no, not to mention that it probably pissed off other patrons trying to enjoy the movie.
"tell that to people being treated like criminals having to submit to searches to see if they are caring "contraband" or a camera."
Because I TOTALLY get searched every single time I go to a theater...ha! The only time they actually bother to search is if it's a pre-screening since they don't want any leaked movies getting out.
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Also I want to point out that people pay for music every time they go to out to dine, every time they use an elevator, every time they buy something in a store that plays music they are paying for that music, every time they go to the gym and you want them to pay it again?
How many times you want people to pay for the same thing?"
No, you don't pay for it in those situations. The stores do...and considering a year license from one of the PRO's is probably a couple grand a year, that is a VERY nominal amount of money (I'm talking less than a penny or two here) factored into the price of each thing they sell. And you don't actually own whatever the store plays, not to mention that the artist probably isn't getting a lot of money for it seeing as how stupid royalty rates are getting. A decent indie artist might get around 500-1000 bucks every quarter depending on how many times their stuff gets played. That's obviously not enough to live on, which is why they rely on things like music/merch/their portion of the ticket sales to fund future shows and living expenses.
So tell me: if one of their income streams is taken away because people want to be freetards, WHAT is going to replace it? Higher prices on the merch and tickets? Because then people will bitch about how a t-shirt is $50. But what else are they supposed to do if that's the only way they get money?
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