When Even The New Yorker Is Doing Long Features On The Ridiculous State Of Copyright Law...

from the time-to-fix-things dept

Tue, Oct 28th 2014 9:12am — Mike Masnick

This article has been out for a few weeks now, but I've finally had a chance to read through the whole thing. Louis Menard, over at the New Yorker, has a long piece on just how messed up copyright laws are today, going over many of the same grounds we have (for nearly two decades). The piece itself is a sort of book review of Peter Baldwin's new The Copyright Wars: Three Centuries of Trans-Atlantic Battle, but basically repeats the main point: copyright law as it is today really doesn't make much sense. The first half of the article is a great look at the problems of copyright law, but unfortunately, the second half of the article goes off the rails by leaping on familiar and misleading tropes about why people feel the way they do about copyright. Still, the first half covers a number of copyright's problems quite well.

Among other things, it takes on the massive orphan works problem:

As it is, few creations outlive their creators. Of the 187,280 books published between 1927 and 1946, only 2.3 per cent were still in print in 2002. But, since there is no “use it or lose it” provision in copyright law, they are all still under copyright today. Patry, in his recent book, “How to Fix Copyright,” notes that ninety-five per cent of Motown recordings are no longer available. Nevertheless, you can’t cover or imitate or even sample them without paying a licensing fee—despite the fact that your work is not competing in the marketplace with the original, since the original is no longer for sale....

In the case of Motown, at least you know whom to call. In the case of many books and photographs, the rights holders are unknown; in other cases, it’s expensive to track down the heirs or the legatees or the firms, possibly no longer in existence, to whom the copyright belongs. And so, for fear of being sued and having their work pulped or otherwise erased from the universe, people avoid the risk. Patry says that the BBC has a million hours of broadcasts in its archives that cannot be used, because no one knows who holds the rights.

But much of the article talks about how, even if many of these debates have gone on for decades, the internet has really brought the problems into stark contrast:

Before the Internet, the social cost of this obstacle was minimal. Only a few people had the time and the inclination to travel to where they could see or listen to archived broadcasts. But today, when everything can be made available to the entire world at minimal expense, it seems absurd to hold enormous amounts of content hostage to the threat of legal action from the odd descendant. “That a vast existing cultural patrimony, already paid for and amortized, sits locked behind legal walls, hostage to outmoded notions of property, when at the flick of a switch it could belong to all humanity—that is little short of grotesque, ” Baldwin concludes. Yet the odd descendant has the law on her side. She has the power to pulp.

The article makes some really great points, but also dips into some unfortunate claims. It's particularly disappointing that Menard trots out the whole "Hollywood v. Silicon Valley" trope in simplified caricatures:

Let’s call the first type of business Hollywood and the second type Silicon Valley. Hollywood, along with the music industry and the publishing industry, which are the other major analog-era corporate interests, makes money by producing and distributing content. Silicon Valley makes money by aggregating other people’s content. Hollywood fears pirates; Silicon Valley fears paywalls. Silicon Valley accuses Hollywood of “monopoly” and “artificial scarcity,” and talks about the democracy of the Internet. Hollywood accuses Silicon Valley of “free riding” and “contributory infringement, ” and talks about protecting the dignity of the artist. But each side is only trying to defend its business model.

But that's not even close to accurate. Because, as we've discussed at length, "Silicon Valley" has also built all sorts of new innovations and tools that have helped "Hollywood" make a hell of a lot more money -- often in ways that have little to do with copyright protection.

From there, Menard pulls in a few more misleading (to sometimes wrong) tropes about the copyright fights -- including that only academics care about the length of copyright terms, and that they really don't like copyright just because it makes it harder for them to access other academic research. It also suggests (falsely) that the DMCA's "notice and takedown" process means "you can post almost anything as long as you take it down when the rights holder complains." It doesn't. At all.

Menard almost entirely ignores the free speech implications of copyright law and completely skips over how copyright can be, and often is, used as a veto on innovation. The article also ends in an odd way, suggesting that freelancers should assign their copyrights to big companies "who have the muscle to protect" them. Huh? It's a disappointing end to an article that had plenty of promise in its first half. It almost feels like Menard rushed the second half, just repeating silly old stories about "the copyright wars" in trying to find a way to end the article. That's unfortunate. Given the first half, it seems like a more interesting road to have traveled would have been to explore ideas and concepts for copyright reform, and how to bring the law into the modern era, making it more current and reasonable.

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Filed Under: copyright, copyright wars, culture, free speech, internet, out of date, peter baldwin

30 Comments

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Ninja (profile), 28 Oct 2014 @ 8:58am

Well, not the brightest work but if this isn't the definition of "going mainstream" then I dunno what is. Maybe we are reaching the critical point where the people will actually rise against the MAFIAA? (Pardon me for the dreamy idea)
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AJ, 28 Oct 2014 @ 9:22am

The average Joe doesn't give a damn about the convoluted web of copyright law. Is it on netflix? No.. how about apple.. .nope... pirates? Well.. the pirates have it in 720, 1080, 3D, Rip, xvid, iso, apple, orange, half crab, 2 shades of colorvision, and will even have it drone delivered on a usb drive... ok, well.. maybe not the drone, but you get the point....
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Michael, 28 Oct 2014 @ 9:43am

People still read the New Yorker?
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average_joe (profile), 28 Oct 2014 @ 9:47am

Re:
The average Joe doesn't give a damn about the convoluted web of copyright law.

I have been summoned!
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AJ, 28 Oct 2014 @ 9:52am

Re: Re:
Awwww crap.. get back in the bottle you!!!! that's not what I ment!....
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Anonymous Coward, 28 Oct 2014 @ 10:13am

Nice Try, New Yorker, but - No
Reporting facts and the sane-seeming early interpretations was just a cover to set up the statement that included:

"...freelancers should assign their copyrights to big companies..."

The WHOLE goal of the article was to sell this point. Got to convince all those freelancers NOT to blog or sell independently. Independence from the "big companies" competes and has begun to do so increasingly successfully - got to get that cat back into the bag before too many people notice.
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Anonymous Coward, 28 Oct 2014 @ 10:56am

Re:
> drone delivered on a usb drive

We already have the PirateBox, a PirateDrone sounds like a fun project (but it would probably be a PirateBox-on-a-drone).
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jupiterkansas (profile), 28 Oct 2014 @ 11:02am

Re:
It's more like "Is it on Netflix?" No? Then I'll just watch something else.
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Anonymous Coward, 28 Oct 2014 @ 11:15am

Re: "...have it drone delivered on a usb drive..."
There' your new business model...DMCA-proof*!

*subject to need to choke the FAA into submission on the commercial use of drones
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Alien Rebel (profile), 28 Oct 2014 @ 11:32am

Over the Cliff Like Wiley Coyote
Louis Menand lost it in the last two paragraphs of his article. It's not creators vs. consumers; it's OWNERS, as in the MAFIAA ownership industrial-congressional complex, vs. everyone else. And citing the Authors Guild as representing creators leads to a whole new discussion about the money and hidden influence in the copyright debate, starting with the "better safe than sorry" copyright license fees the Authors Guild feeds on.

The OWNERS are working hard at not only maximizing the value of the stuff they own, but also their ability to acquire everyone else's stuff, which includes freelancers of all stripes. Sadly, the vast majority of individual creators don't have any awareness of this; they and the groups they belong to have no idea just how much MAFIAA bull-shinola they've swallowed.
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RonKaminsky (profile), 28 Oct 2014 @ 11:33am

Re:
> maybe not the drone

On the contrary, the government/LEA malware planted on your computer along with the pervasive surveillance of the net has activated the automatic anti-infringement SWAT drone which is already on its way! (Yea! I just unified several diverse Techdirt topics!)
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Anonymous Coward, 28 Oct 2014 @ 12:46pm

Bad premise
The article states "A copyright is, first and foremost, the right to make a copy. [...] If, a year from now, someone else, without my permission, reprints my article in a book called “The Most Thoughtful and Penetrating Essays of 2014,” I can complain that my right to make copies is being violated".

The second sentence is nonsense, suggesting the above definition is completely wrong. Just because somebody else made a copy doesn't mean the author can't. Copyright is actually the right to stop other people from making copies.
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Alien Rebel (profile), 28 Oct 2014 @ 12:52pm

On reading through a second time, I'd say Menand did an OK job overall despite the errors. Which blindfolded person, in trying to describe an elephant, will get it right? Copyright's a pretty damned large and stinky beast, so I'll cut him some slack.
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bob, 28 Oct 2014 @ 2:35pm

Don't get your hopes up...
The New Yorker is run by artists and eventually they realize the errors in their ways.

Here's a piece that celebrates the artists and hates on cheap, online freeloaders like the ones that hang out here.

http://www.newyorker.com/tech/elements/photographers-can-protect-work
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Anonymous Coward, 28 Oct 2014 @ 5:48pm

Re: Re:
Looks like someone was lying about not being able to log in. Surprise, surprise.
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Anonymous Coward, 28 Oct 2014 @ 5:51pm

Re: Don't get your hopes up...
Keep whining, corporate cocksucker.
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Anonymous Coward, 28 Oct 2014 @ 5:59pm

Re: Don't get your hopes up...
then go away, and that will be one less online freeloader, or do you pay every website creator for visiting their site?

Hypocrite douchebag
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Alien Rebel (profile), 28 Oct 2014 @ 6:41pm

Re: Don't get your hopes up...
"The New Yorker is run by artists and eventually they realize the errors in their ways."

I suppose it all depends on your definition of "eventually." But it'll definitely happen when the reality of the marketplace kills off the last remaining dinosaurs, and there's no choice left but to embrace the horror. Might be soon.

That article would serve nicely as an 'exhibit A' for showing how so many creators fail to grasp the realities of the digital age, and how much they need to revisit a whole bunch of assumptions if they're going to make a living. The author echoes a sentiment that's religious dogma among many of the artists I know-

“Photographs are our work, and our product. So it’s like this: There’s a lot of images on the Internet, right? Just like I see a lot of cars on the street. Am I going to go and steal one of those cars and drive it?

Yeah, well, the digital age has made a zillion cars available. Everyone has a car factory in their pocket. Searchable data and digital galleries can potentially put every car ever made back into service. Cars have become so common that most can be had for a couple of bucks, forcing anyone wanting to be a professional creator to work within the reality of two-dollar cars. To continue with the 'car' analogy, we're unfortunately stuck with old laws for grand-theft auto left over from when cars were expensive, and with legacy car companies doing everything they can, fair or foul, to keep cars pricey and available only in limited quantities.
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recherche, 29 Oct 2014 @ 2:25am

Copyright is still immensely valuable... in moderation
Note that the GNU GPL requires a *pair* of content procetion law families to work:

1. Copyright law, which is very strong and works fairly seamlessly across national borders, means that a person can't just pick up someone else's work and use it without permission; and

2. Licensing law, which allows a proprietor of an object to lay down the terms and conditions under which others may access an item.

If copyright law was abolished entirely and retrospectively (extreme example, but hear me out), then the GPL would become toothless in its current form.

The FSF does not want to have the nightmare of a thousand different copyright holders, each owning a portion of the toolchain(s) that the FSF oversees. Co-ordinating such a diverse set of owners would make policing FSF/GPL projects difficult, if not impossible. So, it insists that any prospecive contributor to a project sign over copyright to the FSF. This is *exactly* in line with the New Yorker proposal criticised in Mike's article:

The article also ends in an odd way, suggesting that freelancers should assign their copyrights to big companies 'who have the muscle to protect' them. Huh?

My take is that Copyright is a very valuable tool, and deserves to be preserved, but should be reined in to a timeframe nearer to a human generation gap; perhaps 25-30 years from date of publication.

-- recherche
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Anonymous Coward, 29 Oct 2014 @ 5:54am

Re: Re: Don't get your hopes up...
You told the truth. I'm afraid you must be censored.
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Anonymous Coward, 29 Oct 2014 @ 7:11am

Re: Copyright is still immensely valuable... in moderation
> If copyright law was abolished entirely and retrospectively (extreme example, but hear me out), then the GPL would become toothless in its current form.

It would also become unnecessary. That's the beauty of the GPL.
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Anonymous Coward, 29 Oct 2014 @ 8:14am

"Of the 187,280 books published between 1927 and 1946, only 2.3 per cent were still in print in 2002. But, since there is no “use it or lose it” provision in copyright law, they are all still under copyright today."

Nope.
Unless they were renewed at the 28 year point, they fell into public domain.
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John Fenderson (profile), 29 Oct 2014 @ 8:52am

Re: Re: Copyright is still immensely valuable... in moderation
This.

I think this might be one of the top 10 things people don't understand about the GPL. It's a hack that uses copyright law to try to get around some of the major problems with copyright law. If those problems were fixed, or copyright law went away, then there would be no need for the GPL and everybody who uses the GPL would be thrilled about that.
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recherche, 29 Oct 2014 @ 8:54am

Re: Re: Copyright is still immensely valuable... in moderation
No, no.

The license part of the GPL demands that if you put out a derivative work of a GPL'd work, you are required to publish your changes/additions/deletions under at least the same version of the GPL that you received the originals in... (or, at your discretion, any later version of the GPL).

The license only gets real power because of copyright: If you disobey the license, then plain-old copyright covers the work:

You are given no automatic rights under copyright to distribute changed versions of the original, and your use in this way, without a license, infringes copyright, and leaves you open to legal action.

You can still adopt and adapt GPL code in-house, but the GPL kicks in in full force at the point of distribution. Read carefully the definitions of "propagating" and "conveying" in GPL3.

The FSF has been very consistent, and very successful, at using these legal powers when necessary. While they could sue for infringement in a number of ways, they've consistently asked for the remedy to be that the infringing entity obey the license, and release the modified work, including both the origina GPL input and the entity's changes/additions/deletions to the work, under the GPL for the entire community to benefit.

If there was no copyright law, the license would have no teeth. Copyright is an essential part of the success of the GNU GPL.

-- recherche
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antidirt (profile), 29 Oct 2014 @ 9:19am

Re: Re: Re:
Looks like someone was lying about not being able to log in. Surprise, surprise.

When did I lie? I was unable to log in to my old account, so I created a new one. Later on, I was able to log in to my old account. I think it's because Mike et al. lifted whatever ban they had in place.

I said as much here: https://www.techdirt.com/articles/20140904/09583328416/tor-asks-help-keeping-net-anonymity-as-option -anyone-any-site.shtml#c1446

Quote: "I created a new account because I was unable to log into my old account. It told me there was no such account. I see that I can log in to that account now, so thank you for restoring it."

I explicitly said on September 8th that I now *can* log in to my old account. So, no, I didn't lie.

As far as lies go, I'd love Mike to have a frank and honest discussion about why he tried to ban me two summers ago. I'd love for him to explain why my home IP address is still being routed to the spam filter, even though I'm a financial contributor to the site. It's the secretiveness that bothers me. Where's the transparency that Mike demands of others?

And why is everyone here so hostile to anyone who expresses a differing point of view? Looking through my profile, I see that many comments are hidden. The only way to see those opinions is to leave the profile view, go to the thread, and click un-hide for each post. That just sucks. I'm happy to challenge anyone here. Heck, I'm even happy to have every single person here gang up on me. But hiding my posts because you don't agree or don't like me just fucking sucks.
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antidirt (profile), 29 Oct 2014 @ 9:19am

Re: Re: Re:
Awwww crap.. get back in the bottle you!!!! that's not what I ment!....

Just don't say my name three times. :)
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jupiterkansas (profile), 29 Oct 2014 @ 9:28am

Re:
If only there was an easy way to find out.
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John Fenderson (profile), 29 Oct 2014 @ 9:35am

Re: Re: Re: Copyright is still immensely valuable... in moderation
"If there was no copyright law, the license would have no teeth."

This is true, but meaningless. The point is that without copyright law (or with better copyright law), there would be no need for the GPL, so it wouldn't matter if it had no teeth.
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recherche, 29 Oct 2014 @ 4:37pm

Re^4: Copyright is still immensely valuable... in moderation
I recall a discussion many years ago that a copyright+license model was chosen because copyright was fairly uniform across multiple countries [Berne Convention -- 1886], whereas other mechanisms (patents?) were less uniform.

Part of the rationale for the Convention is that it gave an author the power to assert his/her/its copyright claim across national borders -- previously, a publisher in another country could publish a book without any infringement, leading to an industry of "pirate" publishers.

Separately, remember that the "sanctions, penalties and reparations" portions of law are the places where the "rubber hits the road"... so, with that idea in mind, can you sketch out an alternative framework, working forwards from national sovereignty, with "no" or "better" copyright law? Alternately, are you campaigning for a change in the power structures, e.g. such that the Internet becomes a law unto itself (perhaps becoming a sovereign state in its own right)?

-- recherche
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recherche, 29 Oct 2014 @ 8:50pm

Another angle: Schneier's "Feudal Security"
New thread, but partially prompted by the GPL/Copyright discussion that I was involved in above:

Bruce Schnier wrote an essay on Feudal Security (www.schneier.com), where he noted that we were outsourcing portions of our security landscape to third parties: Losing some freedom, and becoming serfs, is more than offset by the gains in security by joining a collective:

It’s a feudal world out there.

Some of us have pledged our allegiance to Google: We have Gmail accounts, we use Google Calendar and Google Docs, and we have Android phones. Others have pledged allegiance to Apple: We have Macintosh laptops, iPhones, and iPads; and we let iCloud automatically synchronize and back up everything. Still others of us let Microsoft do it all. Or we buy our music and e-books from Amazon, which keeps records of what we own and allows downloading to a Kindle, computer, or phone. Some of us have pretty much abandoned e-mail altogether … for Facebook. [...]

It feels to me that Louis Menard's article recognises the trade-offs involved in many things -- that an individual generally only has limited resources to protect its territory; larger collectives (community groups, unions, non-profit foundations like the FSF, companies, nation states etc.) have more resources to do so, and sometimes there is more to be gained by being a member than you lose by giving up some individuality.

-- recherche
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