You're Only Making Things Worse For Yourself (And Us Too), Media Industries (Part II)

from the double-parking dept

Wed, May 23rd 2012 1:15pm — Larry Downes

Summary of Part One: Consumers, trained by content providers to think most entertainment can be enjoyed freely, no longer take copyright seriously as a legal or moral imperative. It's like a parking meter that's rarely checked. When we do get a (large) ticket, we're outraged. After all, no one else got one for doing exactly the same thing. Our cognitive dissonance has left copyright a law in name only.

Media industries have made things worse for themselves by training customers to think of ads and other indirect sources of revenue-generation as an inconvenience, a feature of programming best not talked about. Ads are woven into the flow of the programming, and increasingly hidden in product placements and other inline forms of sponsorship. My favorite brand of frozen pizza is now co-marketed with the new "Avengers" movie. The psychology of advertising is subtle and complex—or maybe not.

In either case, the result is that at the most basic level—at the reptilian cortex of the brain—consumers are encouraged to ignore the reality that advertisers pay for or highly subsidize most forms of content. Because the economics of content are kept mysterious, we have no reason to believe that if we enjoy movies, music, books or television shows at the wrong time, or with the wrong people, or without the ads, we're undermining the basic rules of the industry. How can we be expected to understand that doing so is not only dangerous to the continuation of that longstanding model but also a crime, punishable by enormous fines and even possible jail time?

What consumers do see, however, is that as content has been translated, often kicking and screaming, into digital form, the unit cost of production, distribution, and marketing has plummeted. Yet for most media, the price has not decreased proportionally, largely because rightsholders want to protect increasingly uneconomical physical media formats such as hardcover books, newspapers, and movie DVDs.

Worse, even as the unit cost of media declines, the rules against unauthorized copying have become stricter. It's as if there were suddenly millions of new parking spaces available across Manhattan, but parking lots keep charging more than $10 an hour. And all the meters are suspiciously broken.

How did this happen? Since well before the invention of the photocopier, media industries have pursued a consistent if counter-productive legal strategy of responding to disruptive technologies that decrease costs and open new markets by lobbying for extensions to copyright terms, increased penalties, and criminalizing more behaviors.

Their theory—if there is one—is that technologies that make it cheaper to create and distribute content also make it cheaper to violate copyright (see Napster, et. al.). Cheaper production is ignored, while increased potential for violations requires enhanced penalties that can't, in any case, be enforced. It's a lose-lose-lose strategy for producers, creators, and consumers. And it's a loop we've been stuck in for decades.

One result of that fatal loop is that under current law the concept of fair use—long understood as a safety valve to an otherwise economically-dangerous copyright monopoly—exists in name only. And with copyright terms continually and retroactively extended, almost nothing enters the unrestricted "public domain" anymore, even though the continued expansion of the public domain was the whole point of granting the "limited" copyright monopoly in the first place.

Copyright was designed as a low-cost and largely self-enforcing mechanism for achieving two important goals: incentivizing creators to build the intellectual capital of a new nation and making sure that their efforts could be used and built upon as quickly and as freely as possible. Copyright gives authors a monopoly, which necessarily reduces potential social value. (Economists call it "dead weight loss.")

But there's an essential caveat. Once the limited period of the monopoly expires, all rights are unreserved. The public can do as it pleases with the work—copy it, adapt it, reframe it, anthologize it, mock it. (Some amount of mocking is allowed even before the term expires.) As the Constitution puts it, Congress shall have the power—and not the obligation—"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

But copyright law no longer promotes the progress of anything. It just secures more rights. And patent law, in its own state of disarray, is even worse. It's actually counter-productive, as if to make it a crime just to think about parking.

This dangerous imbalance in the system is the result of misguided efforts to preemptively rescue American content industries from wave after wave of disruptive copying technologies, each seen as the certain destroyer of the content enterprise. Jack Valenti's infamous testimony that the VCR was "to the American film producer and the American public as the Boston strangler is to the woman home alone" is still chilling in both its rhetorical excess and its misreading of the future. (And how was the "American public" threatened at all?)

The imbalance of copyright today is the result of Hollywood's irrational fear of the unknown. As Prof. Tom Bell made visually clear with his 2009 "Mickey Mouse Curve," the regular extension of copyright terms and penalties, especially in the last hundred years, has not been based on the reasoned deliberation of Congress so much as the unrelenting lobbying of the Disney Corporation, determined to spend whatever it must to keep every iota of its creative work out of the public domain. Worse, Disney's obsession is about control, not maximizing profits.

As Bell's curve demonstrates, whenever the earliest works of Disney are about to lose copyright protection, Congress steps in to extend it retroactively. This is no coincidence. But it is ironic coming from a company whose oeuvre includes so many films based on content (the Hunchback, Hercules, Mulan, Tarzan) that had only recently entered the public domain. Or maybe not ironic at all.

Source: Tom W. Bell
(It is a persistent myth, by the way, that allowing "Steamboat Willie"—itself a parody of a Buster Keaton film—to enter the public domain would mean the end of protection for Mickey Mouse. While freely copying those early cartoons would no longer violate Disney's rights, all the later works would still enjoy their full run of exclusive rights. And Disney's trademarks in its characters and character designs would greatly limit what others could do with Mickey beyond copying the public domain cartoons themselves. Trademarks are valid so long as consumers continue to associate them with a particular source—potentially forever.)

Irrational policy decisions produce unintended consequences. The successful campaign to continually and dramatically extend copyright is increasingly a pyrrhic victory for the content industry. By removing all of the safety valves against abuse of the "limited" monopoly, copyright, as Supreme Court Justice Breyer has argued in dissent, has effectively become permanent. The law is now rewritten solely to protect the interests of a few large rightsholders.

Yet traditional forms of legal enforcement have become nearly impossible. Consumers use a constant supply of disruptive technologies (the cloud, P2P protocols, encryption) to rebel against a dictatorial copyright regime. And the speed of innovation has long-since outstripped the speed of Congress and the courts. Most consumers now see themselves and each other not as lawbreakers but as freedom fighters. Copyright, in its current mutant form, is now firmly on the wrong side of history.

Next: How to Reset the Balance and Save Copyright from Itself

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Filed Under: advertising, distribution, dvd, product placement, public domain

86 Comments

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Anonymous Coward, 23 May 2012 @ 1:32pm

Much better than part 1
I get a better sense of where you were going with the parking meter analogy now. The first part had me thinking that you're only point was that copyright and parking fees were bad simply because they are both unpopular, randomly enforced and unrespected. This second part fills in your argument more. Thanks.
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Crosbie Fitch (profile), 23 May 2012 @ 1:39pm

Further down the rabbit hole
Larry, you obviously recognise that copyright has some problems, but you haven't gone very far down the rabbit hole. Try The 18th Century Overture.
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TDR, 23 May 2012 @ 1:47pm

So where is the reset button on the USA?
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ltlw0lf (profile), 23 May 2012 @ 1:54pm

Re: Much better than part 1
I get a better sense of where you were going with the parking meter analogy now.

I agree. Both of these articles are well written, but I was not sure where Larry was going yesterday either. I look forward to reading more.
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Anonymous Coward, 23 May 2012 @ 1:54pm

But copyright law no longer promotes the progress of anything.

That's a ridiculous claim, sorry.
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Anonymous Coward, 23 May 2012 @ 1:58pm

Re:
Why is it ridiculous?
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PlagueSD (profile), 23 May 2012 @ 1:58pm

Think of the lawyers!!! Without patent law, they'd all be unemployed!!!

We need to keep everything locked up. If 1 thing got out into public domain, that would be one less thing we can sue for...We'd have to downsize the IP Lawyer division and they'd be forced to get real jobs!!!

/sarcasm
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Anonymous Coward, 23 May 2012 @ 2:15pm

Re: Re:
Because it is ridiculous!
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Anonymous Coward, 23 May 2012 @ 2:17pm

Abolish copyright
Copyright should not be save from itself but rolled back or abolished.

Non-commercial file sharing is nonnegotiable for both parties and whether it says illegal is a categorical yes or no.
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Anonymous Coward, 23 May 2012 @ 2:23pm

when content that was in the public domain is removed and put back under copyright, it makes copyright itself the crime. until law makers rethink what they have been/are doing to protect these industries, forcing them to join the digital age with the appropriate pricing and distribution methods, nothing will improve
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Anonymous Coward, 23 May 2012 @ 2:26pm

Re: Further down the rabbit hole
I'm trying to follow your Overture article. This is the part I'm trying to noodle on:

Within their natural right to privacy, an author has a natural exclusive right to their writings. They have a self-evident right to exclude others from copying the writings in their private possession. This right can be secured by law without granting authors any further reproduction monopoly (over production of copies of published works). Authors have a natural monopoly to their private works, and it is this monopoly, and only this monopoly (to which the author has a natural right), that Congress is empowered to secure. Moreover, it should be secured for a time limited to that of the author�s life (or at most their expected lifespan � to deter murder as a means of obtaining an author�s writings).

Are you arguing that the progress clause was only intended to grant congress the power to declare stealing things out of people's desks illegal? Are you saying that Madison pressed the framers into a fear of evil printers setting up shop in author's private libraries and transcribing books before the author chose to publish them?

I would expect to see some writings of people calling foul in 1790 if they were truly hoodwinked by Madison in this manner.
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Dave Xanatos, 23 May 2012 @ 2:26pm

And Disney's trademarks in its characters and character designs would greatly limit what others could do with Mickey beyond copying the public domain cartoons themselves. Trademarks are valid so long as consumers continue to associate them with a particular source�potentially forever.

I'm itching for Mickey to expire (I know, I know) so that this can be explored as a constitutional issue. Allowing characters to be trademarked seems to essentially create an eternal copyright on the character. The Supreme Court has chosen to interpret 'limited times' very literally. How would copyright without a expiration date play with them?
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Anonymous Coward, 23 May 2012 @ 2:29pm

This is all bull.
It's the old play - blame the victim.
The reality is, the entertainment industries NEVER trained consumers to expect free content.
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Lord Binky, 23 May 2012 @ 2:47pm

Re:
Uh, no.. The intrusiveness of how they play commercials encouraged people to have another distraction while the commercials where playing to ignore them(hit mute and talk about the show), otherwise the content was free. Oh, and it's free over the radio too, that happened this one time i think... or maybe i have been stealing when i swap channels to avoid commercials....
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JEDIDIAH, 23 May 2012 @ 2:50pm

Liar Liar, Plants for Hire...
What has been the dominant model of media distribution over the last 100+ years? What even predates any ability to record content and sell it to individual consumers?

Broadcast Media.

Broadcast Media has been free content for the masses for as long as the technology has existed. This started with radio and continued with television.

I still can consume "for free" with the help of an antenna.

I can wait for the Avengers to be run for free on CBS.
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Anonymous Coward, 23 May 2012 @ 2:52pm

Death to the Mouse!
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Anonymous Coward, 23 May 2012 @ 2:52pm

Re: Re: Much better than part 1
if copyright is in name only, why does lessig keep losing in court? and, well... tenebaum too...

http://thetrichordist.wordpress.com/2012/05/08/larry-lessig-is-wrong/
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ldownes (profile), 23 May 2012 @ 2:57pm

Re:
It doesn't seem likely there's any constitutional conflict between trademark and the copyright clause. A trademark is not an exclusive right to copy--I can, for example, use your trademark in a comparative ad, or for other reasons, so long as I don't use it in a way that creates a likelihood of confusion (the legal term of art) with relevant consumers as to the source or affiliation of my products/services.

Due to errors in registration during the time when the specifics were more demanding, some early Warner Brother's cartoons lost copyright protection long ago. They can be copied without permission, and that hasn't raised any legal challenge to the copyright.
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Anonymous Coward, 23 May 2012 @ 3:03pm

Re: Re: Further down the rabbit hole
To answer my own question, it looks like there was a real fear of people stealing and publishing manuscripts. From a 1834 supreme court case:

That an author at common law has a property in his manuscript, and may obtain redress against anyone who deprives him of it or by improperly obtaining a copy endeavors to realize a profit by its publication cannot be doubted, but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work after the author shall have published it to the world.

From the same case, it is clear that your argument regarding the secure/grant wording was also a concern shared early in the nations history :

In behalf of the common law right, an argument has been drawn from the word "secure," which is used in relation to this right both in the Constitution and in the acts of Congress. This word, when used as a verb active, signifies to protect, insure, save, ascertain, &c.

The counsel for the complainants insist that the term, as used, clearly indicates an intention not to originate a right, but to protect one already in existence.

I'm still not sure that the framers didn't know exactly what Madison intended with the clause, or were opposed to what he was intending. But I will grant that there is some merit to your thesis.
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ldownes (profile), 23 May 2012 @ 3:05pm

Re: Re:
correction: any legal challenge to the trademarks.
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ltlw0lf (profile), 23 May 2012 @ 3:09pm

Re: Re: Re: Much better than part 1
if copyright is in name only, why does lessig keep losing in court? and, well... tenebaum too...

What does this have to do with anything I or the previous AC said? If you are going to hijack our thread, at least try to stay on topic please.
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The Groove Tiger (profile), 23 May 2012 @ 3:10pm

Re: Re:
Because it never promoted the progress of anything to begin with.
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Crosbie Fitch (profile), 23 May 2012 @ 3:17pm

Re: Re: Further down the rabbit hole
I'm saying that while Madison wanted to enable the privileges of copyright and patent to be granted the clause he inserted was not sufficient to empower Congress to grant them.

His clause went unchallenged precisely because it simply empowered Congress to secure authors'/inventors' rights, and there was nothing controversial about securing rights since that was the whole point of the Constitution, viz "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"

See also http://culturalliberty.org/blog/index.php?id=289

As to "calling foul" the copyright and patent legislation was a fait accompli and what Framer would openly gainsay Congress at that point?
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Simple Mind (profile), 23 May 2012 @ 4:12pm

Re:
The president carries it with him in a brief case at all times.
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Anonymous Coward, 23 May 2012 @ 4:13pm

Re: Re: Re: Re: Much better than part 1
if you are insisting that copyright exist in name only, I'm simply pointing out the courts (er uhm, the supreme court for one) don't agree with you even if the enforcement legislation has not caught up yet - two very different things.
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Anonymous Coward, 23 May 2012 @ 4:16pm

Re: Abolish copyright
what about commercial file sharing? should the pirate bay be able to commercially profit from illegally exploiting artists works?
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Mike Masnick (profile), 23 May 2012 @ 4:19pm

Re: Re: Re: Re: Re: Much better than part 1
You might want to learn how to reply to comments. You seem to be talking about something totally unrelated to the comments you're replying.

Is it any surprise that the guy who doesn't understand basic technology or business models can't figure out how comments work either?
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Mike Masnick (profile), 23 May 2012 @ 4:20pm

Re: Re: Re: Re: Re: Much better than part 1
if you are insisting that copyright exist in name only, I'm simply pointing out the courts (er uhm, the supreme court for one) don't agree with you even if the enforcement legislation has not caught up yet - two very different things.

To clarify even further, you're ascribing to someone (ltlwolf) comments he did not say.

You do that frequently, but normally you just say it. Here you're replying to his comments and bringing up entirely different subjects.
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Anonymous Coward, 23 May 2012 @ 4:26pm

Re: Liar Liar, Plants for Hire...
This is true, but A)You are not guaranteed to receive the signal for CBS, ABC etc, and B) Since the digital conversion, a lot of people who received the signal before, no longer can. If you subscribe to cable or sat, then you have to pay to receive those channels, making them no longer free. Not that I disagree with you, just sayin.
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Anonymous Coward, 23 May 2012 @ 4:27pm

Sadly Larry, you are falling for the same problems that typically plague Techdirt: You are looking at the oldest works (the old Mickey Mouse Curve, as you call it) and seem more than willing to ignore that most piracy is in the here and now, with the newest works.

You could cut copyright to 35 years tomorrow, and the amount of piracy would change very little. Duration of copyright just isn't an issue here. It is at best the red herring you would like everyone to look at, the "outrageous" thing that you can get people to focus on, while ignoring the elephant in the room.

Copyright law just hasn't changed much at all since inception. Most modern attempts at addressing current issue s have come down soundly on the side of the consumer, from extended fair use to the safe harbor provisions of DMCA which usurped copyright holder's rights and allowed for widespread use of content as "user generated", which is what fuels most of today's internet. It's not creative commons works or public domain works that are crowding up the social networks, it's pirated material in various forms.

So when you can stop trying to get people to look "OVER THERE" at a problem that is very small, and trying to use that as a cover for the bigger problem, then your cause might get more real support. For now, you are preaching to the Techdirt choir, not really a hard sell, is it?
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Anonymous Coward, 23 May 2012 @ 4:37pm

Re: Liar Liar, Plants for Hire...
This is true, but A)You are not guaranteed to receive the signal for CBS, ABC etc, and B) Since the digital conversion, a lot of people who received the signal before, no longer can. If you subscribe to cable or sat, then you have to pay to receive those channels, making them no longer free. Not that I disagree with you, just sayin.
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Lowestofthekeys (profile), 23 May 2012 @ 5:13pm

Re:
It definitely promotes the progress of money into the greedy executive's wallet.
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Lowestofthekeys (profile), 23 May 2012 @ 5:16pm

Re: Re: Abolish copyright
Oh here we go, Lowery is back.
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Lowestofthekeys (profile), 23 May 2012 @ 5:20pm

Re:
So piracy is the big issue, huh?

http://www.nytimes.com/2012/02/05/opinion/sunday/perpetual-war-digital-pirates-and-creators. html?_r=2

I like this part:

Piracy�s effects on the economy as a whole are hard to measure

So, kettle meet pot.
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Anonymous Coward, 23 May 2012 @ 5:24pm

Re: Re:
You probably don't like:

" But when it comes to music, most economic studies have concluded that piracy accounts for the vast majority or even entirety of the sales decline."

Quit cherry picking. Reality is this guy clearly admits that piracy is hurting the industries. Economy as a whole? Who knows? Does anyone know that about any industry, really?
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Anonymous Coward, 23 May 2012 @ 5:36pm

Re: Re: Re:
And I'd sincerely like to know from where he took that piece of data, because every unbiased study I saw shows that the impact of piracy is either minimal, mitigated by the benefit of it serving as advertisement/sampling; or not possible to be measured/inconclusive.
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Lowestofthekeys (profile), 23 May 2012 @ 5:48pm

Re: Re: Re:
Cherry picking? You're focused on one aspect of why the music industry is hurting, stop having such a narrow viewpoint.
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Lowestofthekeys (profile), 23 May 2012 @ 5:50pm

Re: Re: Re:
By the way -

http://www.freakonomics.com/2012/01/12/how-much-do-music-and-movie-piracy-really-hurt-the-u-s-e conomy/

More recently, a smaller estimate � $58 billion � was produced by the Institute for Policy Innovation (IPI). But that IPI estimate, as both Sanchez and tech journalist Tim Lee have pointed out, is replete with methodological problems, including double- and triple-counting, that swell the estimate of piracy losses considerably
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ltlw0lf (profile), 23 May 2012 @ 6:48pm

Re: Re: Re: Abolish copyright
Oh here we go, Lowery is back.

At least he is consistent. Consistently wrong, but consistent.

I just can't wait until he starts accusing Techdirt of commercially profiting from illegally exploiting artists works because we talk about it here and there are ads on the page.

Lowery, repeat after me, Pirate Bay does not distribute copyright works. They point to others that do, but they don't themselves. (While it is doubtful he'll listen, at least someone else coming here might become more intelligent if we keep saying it.)
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Dave Xanatos, 23 May 2012 @ 6:50pm

Re: Re:
I disagree very strongly. Right now Disney uses the sledge hammer of copyright to smash anyone who tries to use any of their characters in another work. When (if) Steamboat Willy is elevated to the public domain, they will then use the jack hammer of trademark to crush anyone who uses Mickey Mouse in a new context. It will happen. Trademark law is already abused now, so extending the abuse to exclude other MM works from the marketplace is not a stretch.

The constitutional issue is that they effectively have a copyright-like monopoly over a creative work that will last as long as they do. Just because they will then call it trademark doesn't resolve the conflict. An alternate!MM will be in the same commercial sphere as their trademark!MM.

So either I will be able to write, draw, or otherwise create a MM story in 2018, or they will have an eternal monopoly on it. That is a problem.
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ldownes (profile), 23 May 2012 @ 6:53pm

Re: Re: Re:
It might be a problem but it is not a constitutional problem.
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Anonymous Coward, 23 May 2012 @ 6:56pm

Re: Re: Re:
Right now Disney uses the sledge hammer of copyright to smash anyone who tries to use any of their characters in another work.

So copyright does foster more creativity!
Why don't you make up your own characters, be MORE creative, rather than copying someone else's ideas?
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ltlw0lf (profile), 23 May 2012 @ 6:59pm

Re: Re: Liar Liar, Plants for Hire...
A)You are not guaranteed to receive the signal for CBS, ABC etc,

Cable and satellite don't even guarantee you'll receive the signal. They make an effort to fix the problem, but I know of at least two friends who bought satellite, and eventually had to cancel it because the company couldn't provide the signal to them they paid for. One was blocked by a mountain, and the other was blocked by stupid HOA rules which mandated where satellite receivers could be placed. Both received refunds, but it took a lot of work to get them taken care of. When my cable went out and I contacted the cable company about it, they eventually fixed it (someone illegally spliced into the cable and knocked me offline.) I never got a refund for the lost signal (nor did I expect one,) and was told that I was pretty much SOL until they fixed it.

B) Since the digital conversion, a lot of people who received the signal before, no longer can. If you subscribe to cable or sat, then you have to pay to receive those channels, making them no longer free.

Absolutely agree here, digital conversion has been difficult all around. What I thought took the cake was that while US broadcasters had to switch to digital, foreign broadcasters did not have that problem. So where I am now, some channels come in analog, while others come in digital. And when analog signals bleed into the digital channels, bad things happen.
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Anonymous Coward With A Unique Writing Style, 23 May 2012 @ 7:03pm

Re: Re: Re: Re: Much better than part 1
He, I'm assuming it's the same guy from yesterday, kept doing that to me too. And if it's not him, it's the same thread hijacker from the El-P article who also did the same thing.

Just report and move on I say. I'm no fan of reporting people/flagging comments, but in his case I'd say it's perfectly acceptable.

That's how you know he's just here to disrupt. He has no real response to what people actually say, so he makes stuff up/puts words in their mouths and then replies to that with something stupid like "how much does the pirate bay give artists ahyuck" and thinks he's being clever and debating reasonably.

Reported on my part already.
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ltlw0lf (profile), 23 May 2012 @ 7:07pm

Re:
You could cut copyright to 35 years tomorrow, and the amount of piracy would change very little. Duration of copyright just isn't an issue here. It is at best the red herring you would like everyone to look at, the "outrageous" thing that you can get people to focus on, while ignoring the elephant in the room.

I hate to agree with you, but you are right with this. Having copyrights longer than 20 years has done more to hurt old works than help new works. How many works have disappeared into obscurity because no publisher wanted to continue printing them and no potential reader knew they existed. I am not against copyright, unlike some others here, and I believe it has its place still. But bringing the copyright back into a practical duration will do far more to help older works that disappear into obscurity.

Just think how many new readers/viewers/listeners there would be if those who locked away old books/videos/music into vaults where nobody could access them and appreciate them. Sure, these books/videos/songs could be found in a library, but would you rather introduce a new audience to a work by telling them they have to go to a library, or by placing it on the largest, most accessible library in the world that we call the Internet?
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E. Zachary Knight (profile), 23 May 2012 @ 7:10pm

Re: Re:
Well, currently Edgar Rice Burroughs Inc is testing this theory. They are claiming that others cannot use the John Carter and Tarzan stories that are in the public domain, because of trademark. It is a horrible argument, but there are claiming it and litigating on it anyway.
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BeeAitch (profile), 23 May 2012 @ 7:13pm

Re: Re: Re: Re:
My guess is that piece of "data" came from here, which has been thoroughly debunked here, here, here, and many other places (follow the links).

IOW, he's talking out of his ass.
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Anonymous Coward, 23 May 2012 @ 7:20pm

Re: Re: Re: Liar Liar, Plants for Hire...
Yeah they want to make it seem like they are serving the majority of America with free broadcast Tv when the reality is that a large segment is either paying for it (thanks for the retransmission fees congress/FCC), or are left out entirely.
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ltlw0lf (profile), 23 May 2012 @ 7:27pm

Re: Re: Re: Re: Re: Much better than part 1
Just report and move on I say. I'm no fan of reporting people/flagging comments, but in his case I'd say it's perfectly acceptable.

I prefer to use the report button for spam and overly offensive comments, but the fact that he keeps spamming his (or if not his, someone who he is friends with,) shill blog might hit my spam quota. I don't have a problem with anyone speaking their mind (and I'll fight anyone who tries to prevent them from speaking.) And so long as they are civil and on-topic, I appreciate them speaking their mind, even if I don't agree with them.

I don't believe this one is the same guy, the other guy doesn't post links and plays the "you don't know who I am" card. I believe this guy was the one just posting random quotes from artists from that (trichord) site yesterday. Not good at the whole internet thing, but at least yesterday the quotes were mildly apropos even if they were old, and cherry-picked (and at least in one case, easily disproved.)
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ltlw0lf (profile), 23 May 2012 @ 7:38pm

Re: Re: Re: Re:
So copyright does foster more creativity!

How does using copyright as a sledgehammer to smash anyone who is being creative foster more creativity? Please, we are dying to know. It is almost like saying soldiers create new life by killing people during war.
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silverscarcat (profile), 23 May 2012 @ 7:43pm

Re: Re: Re: Re:
"Why don't you make up your own characters, be MORE creative, rather than copying someone else's ideas?"

Because ideas are not solo things.

Someone says "hey, wouldn't it be neat if..."

And another person goes "yeah, but then this..."

And another person goes "yeah, but this..."

And thus, an idea happens...

By pooling resources, we become more creative.

Besides, you know Disney's biggest movies? Cinderella, Snow White, Hunchback, Little Mermaid, Lion King?

You know those movies?

They were all taken from someone else's ideas and used freely without paying anyone anything.

Oh wait, that's because those works were in the Public Domain and Disney didn't have to pay rights.
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Anonymous Coward, 23 May 2012 @ 7:53pm

Re: Re: Re: Re: Re:
How does using copyright as a sledgehammer to smash anyone who is being creative foster more creativity? Please, we are dying to know.

I already told you, can you not read?
By forcing you to create your own ideas instead of copying others.
Why copy a Disney character, why not make your own, like many thousands of other animators.
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silverscarcat (profile), 23 May 2012 @ 8:01pm

How about the truth?
Piracy is hurting the music industry?

I thought it was because they put out crappy music.

And people are tired of it.

Not to mention that the music industry screwed customers over for years. You want the uncensored version of an album? Good luck getting it at Wal-Mart, K-Mart, or Target, the only places that sells music in most rural areas. You only got the censored versions of most music, and even then, you only got the biggest names in music, none of the up and comers that you might have liked.

Oh yeah, don't forget, the music industry got laws passed to make it illegal to rent music, for fear of piracy.

they also killed singles.

What's the best selling single of all time? You hear it every year around Christmas in all the Department stores. "It's beginning to look a lot like Christmas."

But... How did the album of that do?

Not enough to be on the top sellers list.

Know what the best selling album of all time is?

Thriller by Michael Jackson.

It sold something like 50 million copies. In addition, most of the songs on that album topped the charts.

However, most albums have one song that you want to listen to, and it's not worth 20 bucks.

You know what's gone down? Album sales.

Know what's up for music?

Singles, concert sales and online downloads through iTunes.

BTW, each of those three things has more in sales than what albums have lost.
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Lowestofthekeys (profile), 23 May 2012 @ 8:02pm

Re: Re: Re: Re: Re: Re:
Sure, anyone can come up with creative ideas, but his point is that Disney is full of a bunch of people who copy the ideas of others.
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ltlw0lf (profile), 23 May 2012 @ 8:02pm

Re: Re: Re: Re: Re: Re:
I already told you, can you not read? By forcing you to create your own ideas instead of copying others. Why copy a Disney character, why not make your own, like many thousands of other animators.

Because copying is how we learn. When I was a baby, I learned how to speak by listening to others speak, and then copying them. When I was a kid in elementary school, I learned how to write by copying what my teacher wrote. When I was a teenager, I learned how to be a person by copying my friends. When I became an adult I learned to be an adult by copying what other adults did. Sure, at each step I made it my own, but I got there by copying others.

One of the surest tests [of the superiority or inferiority of a poet] is the way in which a poet borrows. Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different than that from which it is torn; the bad poet throws it into something which has no cohesion. A good poet will usually borrow from authors remote in time, or alien in language, or diverse in interest.
- T.S. Eliot, "Philip Massinger", The Sacred Wood, New York: Bartleby.com, 2000.
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ltlw0lf (profile), 23 May 2012 @ 8:09pm

Re: Re: Re: Re: Re:
Lion King

You had me till Lion King, silverscarcat. Disney shamelessly stole it from Yoshihiro Shimizu (Kimba the White Lion) and they knew it. And Shimizu was the better, he didn't sue them. Had the roles been reversed, however, I have no doubt that Disney would have bankrupted Shimizu and buried him and his relatives in debt for a thousand years.
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ltlw0lf (profile), 23 May 2012 @ 8:14pm

Re: Re: Re: Re: Re: Re:
You had me till Lion King, silverscarcat.

Of course, nothing I said contradicts all your other points though...they got rich living off of the very well they now want to prevent anyone else from drinking from.
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Anonymous Coward, 23 May 2012 @ 11:40pm

Re:
Funny you should say that. I remember in 2006 when I became a fan of "Weird Al" Yankovic music. I wanted to have original copies of his CDs. Old stuff or recent stuff, it didn't matter, but this being Asia he's not particularly well known. So when a friend of mine went over to America for further studies I asked her if she could purchase original copies for me, which she agreed.

What happened? When she asked if there were any "Weird Al" Yankovic CDs, she was laughed at. And now we have talk that Al has to fight Sony to get his royalties.

The people who claim that any "death" of the industries is solely the fault of the consumer are idiots.
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The eejit (profile), 24 May 2012 @ 12:28am

Re: Re: Re: Re: Re: Re:
But when there is no true original content, what do you do? Kill yourself in despair? Or fight on and beat these clowns into submission in the only arena that matters?
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Dionaea (profile), 24 May 2012 @ 1:04am

Re: Re: Re:
Because Piracy!

/sarc
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Dionaea (profile), 24 May 2012 @ 1:08am

Re:
I agree, essentially something is given to the public by law and then taken away again without consent, normally that would be called stealing. Except the thieves bought a law to legalize the taking away.
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drew (profile), 24 May 2012 @ 1:32am

Re:
AC, the problem isn't over there. The problem is right here. In the US no new material is entering the public domain. That's the concern, not whether cutting the term to 35 year (or 20 years) would affect piracy levels.
The purpose of copyright is to promote creativity. The last thirty years of changes to copyright law haven't achieved that because they have been driven by the idea that inspiration and creativity happen in a vacuum. It's simply not so. We all build on our experiences and our experiences are our shared culture.
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Anonymous Coward, 24 May 2012 @ 2:25am

Re: Abolish copyright
The Pirate Bay does not host content only an index of infohashes.

So strictly speaking, The Pirate Bay does not engage in any copying, and ought therefore not be affected one way or the other by a ban on commercial copyright infringement.

But assuming that TPB should be disallowed from profitting from its users non-commercial sharing, the users themselves should from now enjoy immunity from any civil or criminal liability.
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Crosbie Fitch, 24 May 2012 @ 2:46am

Re: Re: Re: Further down the rabbit hole
You found those quotes pretty sharpish, and to even conceive it's possible my thesis may have merit, it sounds like you know your stuff and aren't a devout copyright supporter, so do get in touch. :-)
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drew (profile), 24 May 2012 @ 3:19am

Re: Re: Abolish copyright
But if you'd abolished copyright it wouldn't be illegal?
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Anonymous Coward, 24 May 2012 @ 3:52am

Re: Re: Re: Abolish copyright
Copyright should be allowed to exist in some form, but the nonnegotiable condition is that non-commercial sharing is legalized.

So either legalization of all non-commercial sharing, or total abolition.
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Ninja (profile), 24 May 2012 @ 4:26am

Re:
Mickey doesn't expire. He takes the "Youth Elixir" from the "copyright Fountain" and gets a few decades more. It's said Disney has mastered the art of refining the elixir and the next time Mickey drinks he'll get a millennium extension and some lawyers will manage to pass down the wealth into the next 10 generations.
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JMT (profile), 24 May 2012 @ 4:51am

Re: Re: Re:
"But when it comes to music, most economic studies have concluded that piracy accounts for the vast majority or even entirety of the sales decline."

Correction: Most economic studies carried out by or for the record labels and their lobby groups have concluded that piracy accounts for the vast majority or even entirety of the sales decline.

Luckily, most economic studies carried out by independent parties, including the USG, have shown that claim to be completely false.
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Anonymous Coward, 24 May 2012 @ 5:11am

Re: Re: Re: Much better than part 1
Thanks for introducing me to that site. It's hilarious.
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Anonymous Coward, 24 May 2012 @ 6:19am

Sounds horrible! Will we need you or TechDirt anymore if they fix it?
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Anonymous Coward, 24 May 2012 @ 6:20am

What if Jesus did return? What copyrights would he violate just by existing?
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Steve R. (profile), 24 May 2012 @ 7:05am

Property Rights and Scarcity
One train of thought concerning property rights holds that they evolve out of scarcity. The ability for unlimited copying so-called "intellectual property" means that it is infinitely available (non-scarce). Therefore, the property right to so-called "intellectual property" should evaporate.
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ltlw0lf (profile), 24 May 2012 @ 7:21am

Re: Re:
Funny you should say that. I remember in 2006 when I became a fan of "Weird Al" Yankovic music. I wanted to have original copies of his CDs.

Fortunately, I have all of his CDs (unfortunately, even the ones that he was not responsible for and didn't like (Food Album, Best of 1 & 2),) but I feel your pain. I've seen the same with other artists I've been interested in.

And now we have talk that Al has to fight Sony to get his royalties.

What kills me is that Al is a really smart and creative guy, but Sony is exactly the opposite. I wrote him once to tell him that I was trying to show a friend one of his music videos on Youtube that I liked, but due to me being on a Android tablet, Sony blocked me from viewing it. The labels like to claim that every download is a lost sale, but in this case, not having access to the video definitely resulted in a lost sale (although we were able to find it uploaded by someone else and were able to play it, and he ended up buying the album.) I got a nice email back from him explaining that it was Sony's decision and he didn't like it either, but was happy I was able to find the material elsewhere and it resulted in a sale. If I was Al, I'd be looking for another label who cared. Maybe there just isn't one and it would be better for him to just go independent.
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JEDIDIAH, 24 May 2012 @ 7:36am

Send some robots back in time!
> I already told you, can you not read?

No you didn't.

If your new characters are vaguely similar to something someone else has written. They still have legal standing to make trouble for you.

Harlan Ellison is the poster boy for this particular problem.
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JEDIDIAH, 24 May 2012 @ 7:41am

Reality has an unfair bias.
> You are looking at the oldest works (the old Mickey
> Mouse Curve, as you call it) and seem more than
> willing to ignore that most piracy is in the here
> and now, with the newest works.

Nope. The first person to actually get nailed for personal file sharing was on the hook for $80K a pop for 20+ year old works.

Those are works that should be in the public domain.

That's stuff like Tron or A Bugs Life.
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ltlw0lf (profile), 24 May 2012 @ 8:51am

Re: Re:
Mickey doesn't expire. He takes the "Youth Elixir" from the "copyright Fountain" and gets a few decades more. It's said Disney has mastered the art of refining the elixir and the next time Mickey drinks he'll get a millennium extension and some lawyers will manage to pass down the wealth into the next 10 generations.

I'd be ok with that. If the copyright maximalists want to treat intellectual property like real property, then I think it should be real property and taxed accordingly. I pay ~$3000 a year in property tax, based on 1% of the sale price of the property. They should be charged 1% (or more) of the gross profits per year, with a minimum of $125,000 per year (based on the maximum penalty for infringement.) The money will go into paying for court costs and enforcement, with a new system in the Library of Congress which maintains a list of what items are still in copyright, the cost of licensing, and who to contact. Anyone who doesn't pay loses their copyright forever (it enters the public domain immediately, just like you failing to pay your property tax means the property receives a lein and eventually gets a default and foreclosure.) The artist can assign the property to a publisher, but if the publisher does not pay the bills, the artist can take the property back and pay the bill, or can allow the property tax to not be paid and the work to become public domain (with appropriate limits and the usual paperwork, like extensions to property tax payments and maybe even a one time grace and a per year discount if you are actually publishing the material, like some of us get when we pay for property taxes on a first home.)

That way Mickey never expires, and the public gets a chance to view/read/listen to material which the publisher no longer believes they can capitalize on.
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Steve R. (profile), 24 May 2012 @ 8:51am

Re: Re:
Restore copyright period to its original span of 14 years. Even that may be too long based on the cut-rate pricing of DVDs being dumped into the Walmart bargain bin.
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Anonymous Coward, 24 May 2012 @ 9:10am

Re: Re: Re:
>Fortunately, I have all of his CDs (unfortunately, even the ones that he was not responsible for and didn't like (Food Album, Best of 1 & 2),) but I feel your pain. I've seen the same with other artists I've been interested in.

Hilariously, often the only answer that we get from shills about the issue - assuming they reply at all - is to do without, or blame myself for not being born in the same country as the artist I want to support. "Sucks to be you to be born in Asia, but GOD FORBID that you hear the tune on YouTube, filthy pirate scum!"

One can't help but wonder if this isn't payback from Sony for "Don't Download This Song".
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ltlw0lf (profile), 24 May 2012 @ 9:14am

Re: Re: Re:
Restore copyright period to its original span of 14 years.

No disagreement here. Or switch to property-tax based copyright, which will allow companies to hold on to copyrights until they are no longer profitable for them and start costing them...then the item becomes public domain and anyone can put it in the bargain bin (or on the internet.) Companies still make a killing publishing works of Shakespeare, which is in the public domain.
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Steve R. (profile), 24 May 2012 @ 9:20am

The Rule of Law and Due Process are Being Eliminated
Larry wrote: "Yet traditional forms of legal enforcement have become nearly impossible.". To get around the impediment of traditional methods of copyright enforcement, infringement for one has been criminalized instead of simply being a civil violation. So we now have the State involved in propping up the revenue stream of corporations.

Not only that but third parties, such as the ISP, are now being required to "filter" and or "read" internet content. Basically wiretapping.

Furthermore, we are seeing the emergence of "automated justice". Basically, if some entity "X" says that you have infringed without any valid proof, ISP "Y" is required to take-down the content and wait for the "offender" to respond and provide proof that the entity "X" actually made a false accusation. (How one can force a third party to act as private law enforcement is beyond me.)

This turns our judicial process upside down. It used to be that the complaining entity had to provide proof and take it to court and try the evidence before an adverse action could be taken. Now one can have an adverse action imposed without a trial and the "offender" then has to defend themselves to rescind that adverse action.

The Washington Times had an editorial condemning cameras that record people going through red lights because in many cases they did not work properly. The Washington Times cited one person defending the use of the cameras who basically said: "Our concern is not justice but maximizing revenue." Similarly, with copyright and patent law, the rule of law and due process are being sacrificed to maximize revenue.
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Anonymous Coward, 24 May 2012 @ 9:22am

Re:
Have you seen the kind of shit that gets pulled around in copyright allegations? Like the guy who sued Ubisoft over the plot elements of Assassin's Creed? If Jesus did return I think, for one, the studio that owns "The Passion of Christ" would want a word with him.
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ltlw0lf (profile), 24 May 2012 @ 9:26am

Re: Re: Re: Re:
One can't help but wonder if this isn't payback from Sony for "Don't Download This Song".

I don't think Sony has enough intelligence to have any malice towards Al for that song. Its sarcasm is far too subtle for them, and they probably figured he was just echoing their sentiments that downloading the song is evil and hurts the artists.

I seen Al several times in concert, and he has done far worse than "Don't Download this Song" on the road. If you do get a chance to see him in concert (he doesn't seem to travel to Asia much unfortunately,) I recommend it. I am still amazed at how much effort he puts into his costumes even on the road, and how quickly he changes into them (he does have breaks during the concert, but they usually are the Face to Face with Weird Al type stuff which aren't that long (usually bits and pieces about 30s to 1m in length.)

Amazon.com does carry most of his albums, including the aforementioned "best of" albums that he hates. I am not sure if they are available to you in Asia, but you might be able to figure out a proxy to allow you to buy them and get them to you.
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drew (profile), 24 May 2012 @ 1:45pm

Re: Re: Re: Re: Abolish copyright
I used to think that but I'm increasingly thinking that there might be a better way of doing things that gets rid of copyright altogether.
But maybe not, I might just be getting confused by how badly the current laws have twisted it away from its original purpose.
Either way I agree with you about non-commmercial sharing.
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John Fenderson (profile), 24 May 2012 @ 3:12pm

Re: Re: Re: Re: Re: Re:
Why copy a Disney character, why not make your own

For a number of reasons. One of which is that many Disney characters, such as MM, have become a part of the culture, and certain types of commentary are best made by using cultural references.

Using MM in such a way is not being lazy or uncreative. It is being referential.
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John Fenderson (profile), 24 May 2012 @ 3:18pm

Re:
Duration of copyright just isn't an issue here.

To you, perhaps. To a lot of us, it's a huge issue.

Most modern attempts at addressing current issue s have come down soundly on the side of the consumer, from extended fair use to the safe harbor provisions of DMCA which usurped copyright holder's rights and allowed for widespread use of content as "user generated", which is what fuels most of today's internet.

Wow, it looks to me like the exact opposite is true.

Re: the safe harbor business in the DMCA, that wasn't an extension of consumer rights at all. It was a skinny bone thrown to the third parties who would be disproportionately harmed to try and make the the egregiousness of the rest of the bill more acceptable.
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Anonymous Coward, 25 May 2012 @ 8:36am

Re: Re: Re: Much better than part 1
"if copyright is in name only, why does lessig keep losing in court? and, well... tenebaum too... "

I think that's part of the point. The courts and the government-industrial complex keep wrongfully stealing from the public domain and they keep stealing away the rights of the citizen for the sole interests of Hollywood and so less people respect the laws and more people end up ignoring them. and since these laws are impossible to enforce and everyone is pretty much in on the plot, these laws are in name only.

http://www.techdirt.com/articles/20120106/14085417306/has-hollywood-hubris-awakened-silicon -valley-to-importance-telling-dc-to-knock-it-off-bad-laws.shtml#c259

For your site to be suggesting that our outrageous IP lengths and retroactive extensions are somehow constitutional or a good thing, just because some judicial-industrial complex thinks so, does not make it so and this makes people ignore these laws even more. Hence they make these laws even less relevant and in name only.
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