There Can Be No 'Balance' In The Entirely Unbalanced System Of Copyright
from the find-something-better dept
For many years now, I've argued against the idea of calling for "balance" in copyright law -- because I don't think it makes much sense. In articles from 2007, 2009 and 2011, I argued that by focusing on "balance" -- as many critics of copyright law do today -- we make a huge mistake. Arguing for balance is setting up the system as a zero-sum game where each trade-off involves a winner and a loser. But history has shown that not to be the case. It is not a zero sum game, and things that might make one side think they're "losing" might actually make them better off (take the VCR for example -- which the movie industry insisted was a horrible abuse of copyright law... until it became the key reason why the industry thrived).Now, following the postponement of the Africa IP Forum, which came about, in large part, due to civil society groups arguing that the event wasn't "balanced" enough, lawyer Alan Story has put together an altogether brilliant condemnation of the talk of "balance" in copyright law, arguing that it is impossible to balance a fundamentally unbalanced system. Much of his attack isn't necessarily on the concept of copyright law itself, but on the nature of the Berne Convention, on which (tragically) much of modern copyright law is based. There's so much in Story's writeup that is worth reading that I recommend you go check out the whole thing, but here are just a few snippets and some commentary.
Every one of the central principles or elements of copyright is one-sided and unbalanced, that is, they favour the owners of copyrighted goods..... The main elements of copyright include the ideology that the world’s knowledge and creations should be owned as private property, that they should be traded as commodities in global capitalist markets, that copyright owners should have exclusive rights, that fair dealing /fair use principles mean what is fair to owners, that creativity will dry up without the incentive of copyright, that there are no alternatives to copyright, that spreading copyright regimes (and the stricter the better) benefits the whole world, and a few other foundational principles and justifications of this Western legal and philosophical export to the global South. Take away these principles and you know longer have copyright. Conversely, accept these principles and you have accepted 98% of the story that WIPO and the US Department of Commerce will be disseminating in Cape Town when their re-scheduled IP summit is held. All that is required, they suggest, is some fine-tuning, a bit of ‘tweaking’ around the edges of the remaining 2%.Story argues that the entire system is based around giving a ton of power and control to the copyright holder (who, he notes repeatedly, is very rarely the content creator). A system "balanced" between the rights of "users" and "creators" would actually contain, you know, some rights for users:
If you have an hour or two in the next few days, read through Berne, clause by clause, and keep a running tally of: a) how many rights are guaranteed and mandatory to the users of copyright in every Berne Convention country? ; b) how many rights are guaranteed to the owners of copyright? The answer to question a) is very brief. Other than what is included in Article 10 (1) of Berne, namely, the right to use quotations already available to the public, there is not a single mandatory right that all users in the world possess, and even this narrow right is qualified. This is another reason why some of us believe that not only is the international copyright system grossly unbalanced, but it is also unbalanceable.He also hits on a key point that many have talked about in regards to the fact that nearly all creativity builds on the works of others. That's a recognition that users are creators so separating out "rights of users" vs "rights of creators" ignores the reality that nearly everyone falls into both camps:
To pit the interests and rights of users against those of authors (again used as a term to designate all creators, whether composers, sculptors, or video game developers) is also a serious mistake. It is based on binary formulation which suggests that users of copyrighted materials are not also creators and that creators of copyright materials are not also users. To return to the same sentence quoted in point 3) above, where else do creators get the requisite tools for their work other than from ‘education, research and access to information’?Story also points out a specific problem under Berne, in that beyond the fact that it doesn't actually establish any real rights for users -- just for copyright holders -- it makes the system even worse (significantly worse) by merely setting "minimums," with mandatory floors. That means that copyright generally can only be ratcheted up, not down.
The question of duration of copyright provides us with one easily-grasped example. The Berne Convention states that member countries must, at a minimum, establish a copyright term of life of the author, plus a minimum of another 50 years. As is sometimes not appreciated, this already is a very long period of time; it means that a pop song written this year by a 25-year-old songwriter could still be restricted by copyright in the year 2112. Yet it is perfectly legal for a country to extend its copyright term to life of the author, plus 100 years, which would restrict the same song until 2152. This is what Mexico has done. Or the copyright term could be raised until it was forever, minus one day. Consider what would have been situation if Egyptian government had gone ahead with its announced plan of 2008 to use copyright law to protect its pyramids as cultural property. The Egyptian term of copyright would then have become life of the author, plus 5000 years. Absurd? Yes. Perfectly legal, however, under the Berne Convention. Conversely, if a country decided to reduce its term to simply life of the author, which would still often leave a term of 30 to 40 years or even longer, such a law could result in that country being expelled from the Berne Union as well as the World Trade Organisation. Moreover, copyright owners might complain future years of royalty payments had been lost due to term reduction and claim their private property had been taken without compensation. Such a circumstance shows the impossibility of balance.You can't have "balance" when the entire system is set up strongly to benefit one particular group. And the thing is, that "group" is rarely actually the creators. Again, Story provides some details:
As for the supposed rights which the copyright system gives to musicians in disputes with recording companies, consider what happened to two leading musicians of the past century. If, as already mentioned, Bob Marley (1945-1981), called the ‘Third World’s first pop superstar’ (Wenner), was unable to hold onto the copyright to many of his best known songs, what chance does the so-called average musician have? Or how about what happened to the path-breaking US bebop jazz pianist Thelonius Monk (1917-1982) who signed a long-term recording in 1962 with Columbia Records, a major recording label at the time. When the contract was over in 1970, Monk amazingly owed Columbia more than US$100,000. Copyright did not help Monk much.There's a lot more in the article and, if you haven't done so already, I really encourage you to read the whole thing. Story is arguing something slightly different than my argument against balance, but the two arguments are related. My argument is that balance only belongs in a system where you have a zero-sum game and giving one side something automatically means another side gets less. If you have a non-zero sum game, then the goal should never be about finding the balance, but about finding the "maxima" -- the point on the curve that provides the most benefits. If you actually believe the (US-defined) purpose of copyright law to be to "promote the progress" then it seems that should be the goal.
However, what Story is arguing is that the entire system of copyright was never set up to be a balance at all, but rather as a system to grant powers to copyright holders against everyone else -- and that the Berne Convention, in particular, is particularly nefarious in how this is set up. I don't think our arguments contradict each other, but are merely just two different ways of noting that copyright law today is not about balance at all, and focusing on balance is a mistake, and doesn't really help the situation. Like Story, I'd urge even those pushing for copyright reform to avoid the use of "balance" in discussing copyright law, because you're already playing into the wrong framework.
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Is that a record?
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Re: ...
Where's OOTB when you /need/ him?
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Terrible
You have to wonder, how did it get to this point? Sickening.
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Re: Terrible
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i fail to see what Else you could call Hollywood accounting and not be blatantly dissembling (i believe I'm using that word correctly?)
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Re: Re: Re: Terrible
It is called copyrights.
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Where the copyright mafia steal from the public domain using the law
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People might respect copyright laws if copyright laws respected the people.
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Would that be a Discman? Or is that still (TM) Sony? :-)
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Balance
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Seems about right.
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ton of power and control to the copyright holder (who, he notes repeatedly, is very rarely the content creator).
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Copyright holders (those who pay the people who make things) are an integral part of why the copyright system works for creators, allowing them to sell their "products" in a system that can help define value in that product. If there was no copyright, the guy making it could sell it all to one guy today, and another guy tomorrow, without any come back.
So perhaps you could get a little more understanding of the topic, and then you would understand why the "who, he notes repeatedly, is very rarely the content creator" comment is a red herring, a misleading way of trying to create anger towards everyone involved in the copyright world.
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Content creators are a subset of content users, only because we are all using content in our lives, from radio and TV to movies, DVDs, and even the software we are using right now to have this friendly chat. However, content creators are not a majority subset, just a small part of the deal. Even with all the online freedom, most people never create much more than a few posts on an abandoned wordpress blog.
The content owners are often not the creators, but what is key is that they have paid the content creators (or pay on an ongoing basis) the content creators, freeing them up to do more of what they do best, creating content.
Using the term "middlemen" is an attempted slam, an illogical ploy to try to get a sympathetic reading of your view. It doesn't pan out, but it's really amusing.
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Actually most people derive the majority of their entertainment from their own social interactions - in other words ephemeral "content" created between friends. It is far more important to most than any content that enters the monetary economy.
Your attitude to the public is most revealing.
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Does that mean that, 30 years ago I didn't have a conversation with someone, I had a "content" with them?
What you are pointing to isn't capital c Content, it's just the small c content of life, like the contents of a paper bag used to carry home your groceries. It isn't unimportant, but I wouldn't confuse the paper bag for a movie or a good book.
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No, he's calling music, cinema, art, sculpture, etc social interaction, which is exactly what it is. It only becomes "content" because of the completely artifical construct of copyright.
I'd have gone with "elitist and entitled" but close enough.
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Why do so many artists end up owing copyright owners if they are being paid?
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Eminem is losing money from his lawsuit because of piracy, not shady record deals? DJ Danger Mouse lost money by creating remixes?
I mean, really? Your argument is that these artists haven't recouped because they aren't popular?
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Tell that to Jerry Siegel and Joe Shuster.
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And that is bad why?
I thought that the intuit of selling something is to maximize sales, that means to me at least selling to everyone you can, why would you try to limit your own sales to only one person?
Quote:
Please shine some of your light of wisdom on everyone else and explain why transferring monopoly rights to who can pay more is a good thing?
We all know what it happens, it either ends with contracts forcing the schmuck creating something to transfer the rights to others or it is bought and put in a ever growing pool of exclusion never to be heard off again.
I mean the guy receiving the benefits from Dick Tracy, Ghostrider and others are not the creators are they?
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Very far from being a red herring. Copyright was created by middlemen for middlemen. In its first incarnation the original author did not even get the copyright at the start. The holding of copyrights was reserved to members of the stationers' company.
The initial copyright belonging to the author was a concession made in the knowledge that the balance of power would mean that very few of them would ever be able to take proper advantage of it.
It sounded good (still does - which is why you and your ilk keep parroting it) but it was always a fraud.
If there was no copyright we could move to crowdsourced upfront funding followed by free release.
The enormous costs of copyright enforcement would be unnecessary and everyone apart from a small group (who are little better than organised crime bosses) would be better off.
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People who make things
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Re: People who make things
The people who make things have the rights. Those rights include the ability to re-assign those rights to others, in whole or in part. Those rights (just like other ownership rights) can be sold, can be transferred, and yes, can be inherited.
It doesn't take away from the initial truth, that the people who create things have the rights. What they do with those rights and their products are up to them, and nobody else.
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God has all the rights then since only he made things from nothing - everyone else is just making derivative works - and here's the rub - God's creation came on a share alike licence - "freely you have received, freely give" (Matthew 10 :8). So people who (re-)make things don't actually have those rights.
Those rights include the ability to re-assign those rights to others, in whole or in part.
Which is quite similar to the right to sell yourself into slavery - we took that right away and it was a good thing.
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Re: Re: People who make things
Why?
In every other element of society, it's the people who own the things that have the rights. The people who make them have zero rights.
Creativity doesn't happen in a vacuum. Every piece of music, art, film, image, sculpture, software - every piece of it - was created from the work that preceeded it. You want to learn how to become a "creator"? You study the works that have already been created. This is the fundamental concept of culture, and the basis for copyright.
Why is it that when dealing with copyright, it's the other way around? With copyright, the people who own the things have no rights, and the poeple who create with the things have all the rights? It's entirely backwards.
An example:
Suppose you are going to build a house. You buy a lot and materials and have them delivered. You show up to start work, and you discover I have used all the materials to build a house on the same lot.
Now I say "oh, but I created this house! It's mine! If you want to live in it, you'll have to license the house from me! I created it, I have all the rights!"
It would clearly be absurd for me to claim that I own the house simply because I created it. So why is it that with copyright, you continually claim the same thing? You create your "content" from works that belong to society, but you get all the rights, and society gets nothing?
What the fuck is wrong with you that you don't understand this simple thing?
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Your snobbery is showing again. Why is it that "cost lots to make = must be good"? As if price is value?
Personally, while I enjoy a good "whoosh-bang, kick-ass" mindless hollywood "blockbuster" as well as the next guy, I could do without them and at least 90% of my personal fave movies of all time come in the low-budget, high-story category.
Plus you still carefully ignore the bit where, whether copyright in itself is "good" or not, there's no sensible argument as to why anyone, creator or corporation that took the rights from the creator, should still be being paid again and again for something 100+ years after any work was done.
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Fair and Balanced - Just Kidding
But the significant issue, to the casual viewer who is not familiar with this ongoing "land grab"; the Fox News panel discussion may actually seem reasonable. That is a sad reality.
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Substance and language
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Re: Substance and language
Richard said: "If there was no copyright we could move to crowdsourced upfront funding followed by free release."
That's how it should be done. This way guarantees that authors and artists get paid for the work they do because they only do work they're paid to do. If people don't pay, they don't work. Simple. If people want content made, they need to pay those that have the skill to make it. Nobody can "steal" anything from authors and nobody can lock up culture to hold for ransom.
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As much as I'd like to pull out of that outrageous life plus 50 minimum set by Berne, I doubt that the people in charge would be willing to lose international face like that.
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not really
Make the penalty for violating fair use to be as serious as violating a copyright.
if fair use companies like the vcr had a right to sue for statutory damages of 25k when copyright holders come up with solutions that also violate fair use rights. Then they would be less likely to propose draconian solutions that are actually balanced in the first place.
If the act of extending the penalties for abusing copyright automatically increase the liability of false or bogus complaint They would be less likely to propose changes that are abusive.
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Re: not really
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Copyrights vs patent rights
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Uh no-- balance is possible and desirable
Before going much further, let me debunk your dumb VCR point. Video cassettes worked because (1) the studios used copy protection and (2) the police tracked down and punished pirates. The success with the VCR didn't prove that copyright is foolish and the studios didn't know what is going on. If anything, the studios proved that with the right DRM, the technology can work. And I might note that none of the budding home video makers were hurt by this compromise technology.
Why do I say this? Because copyright can be balanced. We can have portable video cameras and a successful studio system. People can create and studios can sell and both can co-exist.
Through this all, you continue to believe that copyright is something that only helps the big studios. Nothing could be further from the truth. There are billions of digital cameras out there and every single user is creating copyrighted material. More important, I'm sure that all but the most Stallman-esque are happy that copyright leaves them in control of the images. They like having the choice whether they keep control of the image or release them with a CC license. Copyright empowers the little guy.
You forget that the little guy has no power in the world without copyright-- something that the Big Search astroturfers love to imagine. Without copyright, a big corporation can take any image on the net and use it for their ad without paying the person for it at all. After all, they're just remixing reality and riffing. Isn't that cool?
Don't be such a creator hater. The CC licenses are a great compromise. People can use them if they like. They let people participate in your wild and crazy P2P utopia. If it's really as wonderful as you say, we'll see it win on its own accord.
But I don't see that happening. I don't see the blockbuster films or even the small films being released with cool CC licenses. Nope. Folks like Louis CK are going right to the paywall because they intuitively understand how the world works.
Repeat after me: copyright helps the little guy. Copyright empowers the creator. Copyright hurts the leeches, the couch potatoes and the losers who contribute nothing and want everything to be given to them.
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Re: Uh no-- balance is possible and desirable
Now, here is the next one: 87 percent, 86.8 percent of all these owners erase or skip commercials. I have here, Mr. Chairman, if you are not aware of how this works -- this is Panasonic. This is a little remote control device that you use on machines. It has on here channel, rewind, stop, fast forward, pause, fast advance, slow, up, down, and visual search, either going left or right.
Now, let me tell you what Sony says about this thing. These are not my words. They are right straight from McCann Erickson, whom you will hear from tomorrow, who is the advertising agency for Sony and here is what they say. They advertise a variable beta scan feature that lets you adjust the speed at which you can view the tape from 5 times up to 20 times the normal speed.
Now, what does that mean, Mr. Chairman? It means that when you are playing back a recording, which you made 2 days or whenever -- you are playing it back. You are sitting in your home in your easy chair and here comes the commercial and it is right in the middle of a Clint Eastwood film and you don't want to be interrupted. So, what do you do? You pop this beta scan and a 1-minute commercial disappears in 2 seconds.
Mr. RAILSBACK. Is that all bad?
Mr. VALENTI. If you are watching a Clint Eastwood film it is the most cheerful thing you can do. However, if you are an advertiser who has paid $280,000 a minute to advertise, he feels a very large pain in his stomach as well as in his checkbook because it destroys the reason for free television, the erasure, the blotting out, the fast forwarding, the visual searching, the variable beta scans. the technology is there and I am one who has a belief that before the next few years the Japanese will have built into their machines an automatic situation that kills the commercial.
Being advertised today in all the video magazines, and if any of you take video magazines, here is a marvelous little device called the Killer. It eliminates those black and white commercials. You put the Killer onto your Sony and it automatically takes out the commercial. You don't like the Killer, try the editor. The editor will do the same thing. It will wipe out commercials.
The technology is there in my judgment, in the next several years, where an integral part of the machine will be automatic Killer. But you don't need that now as long as you have this. Indeed, when my son is taping for his permanent collection, he sits there and pauses his machine and when he is finished with it, he has a marvelous Clint Eastwood movie and there is no sign of a commercial. It is a brand new movie and he can put three of those on one 6-hour tape.
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Re: Uh no-- balance is possible and desirable
You mean the pulled the little tab off the tape that didn't let you record over it? If your copy protection can be broken with a tiny piece of electrical tape its not really protection is it? It was more a feature to prevent people from accidentally taping over something than a means to prevent people from copying.
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Re: Re: Uh no-- balance is possible and desirable
However, when the studios freaked out about the VCR, there were no commercial, DRM'd videotapes on the market. The studios were worried about people videotaping movies over TV, which was DRM-free.
Bob is a little confused about all this.
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AFAIK, Macrovision was the very first real copy protection. It is cheap and easy to fix the signal, though, and also was the first real copy protection that was quickly cracked.
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Re: Re: Re: Re: Re: Uh no-- balance is possible and desirable
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It basically made it so, in theory, any copy you made of a protected movie would have constantly flickering brightness to the point of unwatchability. In practice, though, it could be defeated with only a little modification to your VCR.
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Re: Re: Re: Uh no-- balance is possible and desirable
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Re: Uh no-- balance is possible and desirable
They already do this. They just say oops it was a mistake when they get caught. Then they line up their team of 100 lawyers and say "come at me bro!"
"Folks like Louis CK are going right to the paywall"
HAHAHAHAHAHAHAHAHAHAHA
"Copyright hurts the leeches"
What do you mean? The studios seem to be fine.
"copyright helps the little guy"
It would if people were not constantly forced to sell their copyright to the company they work for or to a record company in exchange for 100k upfront.
You think that's fair Bob? Disney gets Mickey not the creator because they paid him 40k a year for awhile then fired him and now get Mickey and all associated cash for life?
You think its fair that 15 years ago before distribution was something you could do from home musicians had the choice to turn over their copyright or no one would ever hear their music? You bullshit doesn't pass the laugh test buddy.
Its not that creator's shouldn't get an exclusive right to sell for a limited time. Its that the system is rigged Bob. You want your movie in theaters you have to go through a studio and to go through a studio you have to give up your copyright. You want to make a physical CD and have it sold all over the country, then you have to go through the labels and to go through the labels you have to give them your copyright. Maybe in your fantasy world copyright helps the little guy but in the real world its a tool for the big dogs to suck every dollar out of something they bought for pennies for the rest of eternity.
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Re: Uh no-- balance is possible and desirable
This may be the funniest statement made on Techdirt, ever.
Sorry Marcus. Sorry Tim. Sorry other Tim. But it is definitely in the running.
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Re: Uh no-- balance is possible and desirable
Repeat after me: a good worker is a live worker, free to live... and work... a bad worker is a dead worker, and vice versa... don't be a bad worker. bad workers are slaves, and dead. payday for good workers has been postponed indefinitely, payday for bad workers is CANCELLED
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Re: Re: Uh no-- balance is possible and desirable
1. Censoright helps control the little guy
2. Censoright empowers whoever owns it
3. Censoright feeds the leeches, the couch potatoes and the losers who contribute nothing and want everything to be given to them(MAFIAA)
There! That sounds much more accurate.
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Re: Uh no-- balance is possible and desirable
Are you serious? You can't actually believe this. Video cassettes worked because they provided the customer with content that THEY WANTED. It made rentals possible, and THAT is why home video took off. #2 is absurd on its face, the success of VHS/cassettes had absolutely ZERO to do with enforcement. Period. Anyone claiming differently is selling you something.
"The success with the VCR didn't prove that copyright is foolish and the studios didn't know what is going on. If anything, the studios proved that with the right DRM, the technology can work. And I might note that none of the budding home video makers were hurt by this compromise technology."
You mean like the DRM that has been defeated and has made zero impediment to copying on, well, EVERYTHING? That you can claim this with a straight face, and then try to use it as your "gotcha!" argument to defeat all others, shows how clueless, out of touch, and bought and paid for shill that you really are. NO ONE with an ounce of brains or even a PASSING familiarity with the topic would by such a load of tripe.
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Re: Uh no-- balance is possible and desirable
So your main argument is to simply repeat your mantra in the hope that people will start believing it - well it won't work around here.
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Re: Re: Uh no-- balance is possible and desirable
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Re: Uh no-- balance is possible and desirable
You really ought to learn how to read. It'll make you look less clueless when you spout something moronic like you did here.
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You can't comprimise with copyright law
This is something that even if you were the richest man in the world 20 years ago, it wasn't possible. But today it is possible even for the poorest people in the world. This information age is a huge step forward for humanity.
We can provide this today. The technology exists. The only thing that stops this from happening is a law that was conceived when the printing press was the most efficient method of copying. This law is copyright law.
There is no comprising with copyright law. It is fundamentally incompatible with this vision.
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Re: You can't comprimise with copyright law
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Nash Bargaining problem
With the extra 50 years, that stops that possibility.
what is all this argument about 'balance' ??? it's unbalanced, so it everything in life.
Because I own a car, does not mean you have a right to use it, because of "balance".
It's balanced towards the creators (authors), rightly so, because they are the ones who took the effort to create it, without their work, 'it' would not exist.
Just because something does exist, does not mean you have a right to own it.
all your whining about copyright and "users rights" to copyrighted material, is only going to harden the resolve of the law makers to ensure the creators rights are protected. You will get your reform, but it will NOT be in the direction you propose.
That would be quite clear to anyone, who reads, and follows these issues. (therefore should be clear to Masnick !!!)..
go back to your economics books and study the "Nash bargaining problem", study it again.. when you understand it, you may have a better understanding of why your calls for reform is "Pareto-inefficient, and will result in your 'losing' the game. (ie, not getting what you want, or even close to what you want).
It's not nothing to do with balance, or zero-sum game (or gain).
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Re: Nash Bargaining problem
Thats all I need to know about you darryl. You would kill someone if it would make you a profit, so really idc what else you have to say.
Also I think your spacebar is broken.
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Re: Re: Nash Bargaining problem
hell, it's a proveable Fact that many corporations would do it quite happily, were it not for the fact that the employee tasked with either doing or aranging it cannot (yet) get out of personally paying the penalty for murder/conspiricy to commit murder (or whatever), where as dodgy accounting practices somehow get pinned on the corporations as a whole rather than the individual (unless the individual was stealing from the corporation, of course) and the only punishment a corporation can be given is a fine, which is just another number in the 'expenses' column.
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Re: Nash Bargaining problem
"We have to have long copyrights otherwise artists would be assassinated"
Priceless. I wish I could hit funny more times. Oddly enough it's also about the most coherent argument for long copyright terms I've ever heard too.....
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There's no balance, no equality...
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Exactly, there can be no balance. And it's a good thing.
Just as there can be no balance between the interests of rapists and their victims, there can be no balance between copyright owners and those who want to use copyright owners' works against their will.
Copyright laws are intended to protect the WEAKER party to the transaction - the author without whom the work would not have existed.
Morally, public interest is of no relevance to the copyright equation. Just because the majority of the population would benefit from free use of someone else's work does not mean that they have ANY right to such use if the author (or his licensee or assignee) chooses against it.
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