Re: Re: I cannot believe they havent said anything about how slow it is.
Registration with the Library of Congress is a formality just for the sake of records.
It has more of an impact than this. For example, you can't ask for statutory damages unless the copyright is registered.
Even so, it's not a very valid criticism. The copyright statutes expressly state that you can get the benefits from the moment you send in register, even if the registration hasn't gone through yet.
This is indeed a good sign. Even if it is some sort of cynical attempt by Republicans to gain the "youth vote" (which I think is true), the mere fact that copyright reform is being mentioned is a good thing.
The Democrats won the election, in part, because they were seen as more "tech savvy" by younger viewers (which was largely justified). They will not want to do anything to disrupt this perception, especially when the country is so evenly divided.
It's also great to see these truths being mentioned in any sort of official way. Any talk of what rights holders "deserve" to be paid, should be banned from the copyright discussion. Copyright was never about that, it was always about providing an incentive for publication and distribution.
I also like the "graduated" system he has for copyright renewal. I don't think a percentage-of-profits system would work (for purely practical reasons), but something like it is a fine idea. Even if you had to actively renew your copyrights without being charged anything, it would eliminate a whole host of problems (e.g. orphan works). I think the EFF advocated for something similar, but I'm just going by memory here.
p.s. I give this thread about another half hour before Average_Joe (or whichever anonymous coward he is this week) comes here, and starts cherry-picking the slight inaccuracies in the brief, in order to distract from the overall truths in it. (While calling Mike a pirate, even though Techdirt had nothing to do with the brief.)
I'm betting that's going to be their first target. And, yeah, it's been around for years. I'm even mentoring a class that uses it to teach IT concepts.
I almost hope they do sue Google, because they'd certainly be able to prove prior art, and would likely get the patent invalidated.
on the side of the pirates and not the rights-holders.
Well, there's your problem.
The only people who are "on the side of the rights-holders" are the rights-holders themselves (and even rights-holders have conflicting views). Pretty much everyone else is against their "side."
If that's all it takes to be "piratical," then the vast, vast majority of people on the planet are "piratical." Including the people who have never pirated anything, don't plan to do so, and don't like that others are doing it.
I suspected that you hold a copyright-maximalist bias that is radical in the extreme. Thanks for confirming that suspicion. Your viewpoints represent copyright law exactly as much as the Westboro Baptist Church represents Christianity.
Do you have any cites from "tort law" (as opposed to copyright cases specifically, where you say "none of that seems to matter")?
Well, in a sense you're right. I was thinking of putative damages in general. Outside of copyright law, statutory damages almost always serve a putative function (e.g. under the TCPA or FDCPA).
Putative damages, generally, cannot be grossly in excess of actual damages, as BMW v. Gore makes clear. And outside of IP law, you don't necessarily get statutory damages unless some harm is shown; see e.g. Doe v. Chao.
And how do you square that with what the Eighth Circuit says about the damages award being punitive and for violation of the public wrong (rather than the private injury)?
As I said, in general, putative damages should not be wholly disproportionate to the actual damages incurred. And in the Thomas-Rassett case, the award was, without question, grossly excessive. It was far, far higher than the award this court said was the norm for copyright infringement (a single-digit multiple of actual damages). And it was definitely far higher than the maximum award for patent infringement (treble damages). It was also far, far higher than the unconstitutionally excessive putative damages in BMW.
Whether the award is unconstitutionally excessive is a different matter. It's possible for a jury-determined damage award to be unjustly excessive without being unconstitutional. If it's not unconstitutional, then courts really don't have much say in the matter.
You don't have to search very far for a cite that backs up my claim:
This Court believes that statutory damages based on a single digit multiple of lost licensing revenues is a good starting point for calculating statutory damages. See generally Broadcast Music, Inc. v. Kiflit, 2012 U.S. Dist. LEXIS 142752 *11-12 (N.D. Ca., Oct. 2, 2012); New World Music Co. v. Tampa Bay Downs, Inc., 2009 U.S. Dist. LEXIS 1221*32 (M.D. Fla., Jan. 6, 2009) ("In keeping with the principle of awarding statutory damages to deter wrongful conduct, courts often award damages based on some multiple of unpaid licensing fees. [Citation omitted.] Awards of two to three times what the infringer would have paid for licensing fees are common."); see also Int'l Korwein Corp. v. Kowalczyk, 855 F. 2d 375, 383 (7th Cir. 1988).
- Peermusic, III, Ltd., et. al. v. LiveUniverse, Inc.
In case you're wondering: yes, that is the very case that this story is about, and the citation is from the ruling that is embedded above.
It may be shortsighted, but isn't it the right of a property owner to act in ways that are shortsighted with regards to his property and his best interests?
First: the economic rights granted by copyright are "property rights" in the same way as liquor licenses or taxi medallions are "property rights." It is an artificial monopoly granted by the government; and it is only granted by the government because it (in theory) provides an overall benefit to the general public. Copyright is supposed to accrue to copyright holders, as an incentive to create and distribute works that otherwise would not reach the public.
So, if the ability to sue (or shut down) lyric sites do not benefit the general public, that ability should not be allowed by law. It's hard to make a case that it is against the public benefit - especially since the lyrics alone, divorced from the music, have no value in the marketplace. Nobody that I know of sells the lyrics separate from the music.
Second: Even traditional private property rights have limits. You can't drive your car into the side of my house, no matter how shortsighted you are.
They have links to the actual laws in the various countries (translated to English), if you feel like looking them up.
In all the countries where "moral rights" are recognized, they are considered distinct from "economic rights." They are not transferable to publishers or labels, and the term lengths are almost always different.
The U.S. and Britain have never recognized these "moral rights," and have only passed the bare minimum necessary for compatibility with the Berne Convention (and only recently). At least, not as copyright - the U.S. in particular has always insisted that those rights fall under libel and slander laws.
copyright is for nothing more than censorship and granting monopolies to a privileged class, ie. printers
You're thinking of the English/U.S. tradition. The European (and recently Asian) tradition is very different.
For what it's worth, it wasn't considered censorship - likely because the "economic rights" generally were applicable only to commercial publishers, until very recently. That is, it was usually considered restrictions on commercial speech, which is less protected by e.g. the First Amendment than speech by individuals among the public.
Obviously, when copyright was expanded to cover non-commercial infringement in the 90's, everything changed. I believe this will eventually be considered a huge mistake, and a barbaric restriction on free speech, in the same way that Schenck v. U.S. is considered abhorrent now.
statutory damages don't require any indication of "actual" damages.
Well, they're supposed to be related to actual damages; that notion has a long history in tort law. Obviously, actual damages are often hard to determine, but statutory damages are at least supposed to be in the general ballpark of actual damages (plus extra as a deterrent).
Unfortunately, none of that seems to matter in copyright cases, and statutory damage awards orders of magnitude greater than even theoretical actual damages are often granted. Usually judges don't even bother to ask what copyright holders for estimates of what licensing fees would be, for example.
It would be great if it were different, but that's just a reflection of the copyright-maximalist age we currently live in.
in countries where natural law is favoured, copyright is a moral right of the author alone, a right which vests regardless of whether there is a law.
This is a good point, as long as you keep in mind that "moral rights" are limited to things like attribution and integrity. The economic monopoly rights are generally not considered a part of "natural law."
I have plenty of love for it, and I've been studying it formally. Unlike you, I know that when it was ratified, it covered only speech. It wasn't until later that it was expanded to cover expressive conduct.
You've been studying speech issues formally, I get that. I've been interested in speech issues for over twenty years - since the anti-pornography debates in the mid-80's, if not earlier, and I've been reading free speech case law all that time. I have a personal stake in free speech issues, as I produce art that is unpopular, as do other artists that I like.
So, I know what I'm talking about, and you're wrong, as you were in our previous discussion. The First Amendment was created specifically to disallow the government censorship of any viewpoint, no matter how it was expressed. There was no distinction made between speech and "expressive conduct," then or now. It's true that the First Amendment has been applied in situations that the Founders didn't consider; but they did not consider that the government would ever attempt to suppress speech in those situations, either. And expression was seen by the Founders as a natural (inalienable) right; something that no just government had a right to interfere with.
Oliver Wendell Holmes was explicitly disavowing the "natural rights" view of free speech when he decided Schenck. This is not a surprise, as he didn't believe in natural rights at all:
There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk. It seems to me that this demand is at the bottom of the philosopher's effort to prove that truth is absolute and of the jurist's search for criteria of universal validity which he collects under the head of natural law. [...]
I used to say when I was young, that truth was the majority vote of that nation that could lick all others. Certainly we may expect that the received opinion about the present war will depend a good deal upon which side wins (I hope with all my soul it will be mine), and I think that the statement was correct insofar as it implied that our test of truth is a reference to either a present or an imagined future majority in favor of our view. If ... the truth may be defined as the system of my (intellectual) limitations, what gives it objectivity is the fact that I find my fellow man to a greater or less extent (never wholly) subject to the same Can't Helps. If I think that I am sitting at a table I find that the other persons present agree with me; so if I say that the sum of the angles of a triangle is equal to two right angles. If I am in a minority of one they send for a doctor or lock me up; and I am so far able to transcend the to me convincing testimony of my sense or my reason as to recognize that if I am alone probably something is wrong with my works. [...]
The jurists who believe in natural law seem to me to be in that naïve state of mind that accepts what has been familiar and accepted by all men everywhere.
If the middle paragraph reminds you of the "2 + 2 = 5" speech from Orwell's 1984, you're not alone. Holmes did not believe in human rights at all; he believed that people's "rights" emanated from ideas that survived as the "fittest" to society. Note that Holmes also sanctioned forced sterilization, in Buck v. Bell:
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.
It may seem like a cheap shot to bring it up, but it is an example of Holmes' belief that the "public welfare" should trump human rights. And it is also an example of the consequences of this belief.
Thus Holmes, and the court in Schenck, contracted First Amendment protections; and, in fact, they had already been shrinking for quite some time before that (especially, and unsurprisingly, during the Civil War). It wasn't until the court returned to an "inalienable right" view of free speech that First Amendment jurisprudence started returning to what the Founders originally intended. And today, the Schenck case (along with Debs and Frohwerk) are considered shameful, part of the dark ages in the history of free speech, and fortunately long-overridden.
When people use the "fire in a crowded theater" quote, they are essentially arguing for a return to these dark ages, whether they are aware of it or not (and usually they are not).
And unlike you, I don't go around calling everything "censorship," expanding the meaning so much that it covers just about everything.
My definition of "censorship" is pretty much the same as the law's: the government suppression of expression.
I will admit that I have more of an absolutist view of the First Amendment than some other people - that any government regulation of speech is wrong, and that such regulations must protect human rights that are equally as fundamental. But this is a "bias" that I'm not even remotely ashamed of, and I think everyone should have it.
Some censorship may necessary, and may not run afoul of the First Amendment. But that doesn't mean it's not censorship, just that it's not unconstitutional censorship.
And that is - without question - what the people I quoted are arguing. They are arguing for censorhip, by arguing that it's not unconstitutional censorship. Which is pretty much the same argument that all people make when they want to censor something. And they usually quote Holmes when they do it.
I'm willing to bet you've made such an argument yourself...
Well, that's not exactly surprising, since you seem to have no love for the First Amendment.
Those are uses of the phrase to point out that free speech isn't absolute.
No, they are not. They are saying, "Free speech doesn't apply to screaming 'Fire.' Speech X is exactly the same as screaming 'Fire,' so doesn't deserve to be protected by the First Amendment."
On the post: House Republicans: Copyright Law Destroys Markets; It's Time For Real Reform
Re: Re: I cannot believe they havent said anything about how slow it is.
It has more of an impact than this. For example, you can't ask for statutory damages unless the copyright is registered.
Even so, it's not a very valid criticism. The copyright statutes expressly state that you can get the benefits from the moment you send in register, even if the registration hasn't gone through yet.
On the post: House Republicans: Copyright Law Destroys Markets; It's Time For Real Reform
Interesting
The Democrats won the election, in part, because they were seen as more "tech savvy" by younger viewers (which was largely justified). They will not want to do anything to disrupt this perception, especially when the country is so evenly divided.
It's also great to see these truths being mentioned in any sort of official way. Any talk of what rights holders "deserve" to be paid, should be banned from the copyright discussion. Copyright was never about that, it was always about providing an incentive for publication and distribution.
I also like the "graduated" system he has for copyright renewal. I don't think a percentage-of-profits system would work (for purely practical reasons), but something like it is a fine idea. Even if you had to actively renew your copyrights without being charged anything, it would eliminate a whole host of problems (e.g. orphan works). I think the EFF advocated for something similar, but I'm just going by memory here.
p.s. I give this thread about another half hour before Average_Joe (or whichever anonymous coward he is this week) comes here, and starts cherry-picking the slight inaccuracies in the brief, in order to distract from the overall truths in it. (While calling Mike a pirate, even though Techdirt had nothing to do with the brief.)
On the post: Why Do We Even Have 'Distribution' As A Right Protected By Copyright?
Re: Re: Re: Re: Re: Re: Re:
You weren't talking about Mike. You were talking about the EFF, a 20-year-old nonprofit that is essentially the ACLU of the Internet.
That you think they're "piratical" shows that you are a complete zealot.
On the post: Patent Office, Perhaps Forgetting What Year It Is, Locks Down Mobile App Development Platforms
Re:
I'm betting that's going to be their first target. And, yeah, it's been around for years. I'm even mentoring a class that uses it to teach IT concepts.
I almost hope they do sue Google, because they'd certainly be able to prove prior art, and would likely get the patent invalidated.
On the post: Why Do We Even Have 'Distribution' As A Right Protected By Copyright?
Re: Re: Re: Re: Re:
Well, there's your problem.
The only people who are "on the side of the rights-holders" are the rights-holders themselves (and even rights-holders have conflicting views). Pretty much everyone else is against their "side."
If that's all it takes to be "piratical," then the vast, vast majority of people on the planet are "piratical." Including the people who have never pirated anything, don't plan to do so, and don't like that others are doing it.
I suspected that you hold a copyright-maximalist bias that is radical in the extreme. Thanks for confirming that suspicion. Your viewpoints represent copyright law exactly as much as the Westboro Baptist Church represents Christianity.
On the post: Why Do We Even Have 'Distribution' As A Right Protected By Copyright?
Re: Re: Re:
Just like to point out that you actually said this. If you think the EFF is "piratical," you're completely insane.
On the post: Democrats & Republicans Should Come Together To Support A Future Of Abundance
Re: A question
Just the other day, my girlfriend gave me a "digital startup." It may or may not have been healthy, but it certainly was caring.
On the post: $6.6 Million Ruling Against Lyrics Site, Once Again, Shows How Short Sighted Music Industry Is
Re: Re: Re: Re: Re: Re: Re: Statutory v. actual damages
Forget radiation, this is the biggest danger from cell phones. You spend too much time on them, and they autocorrect your brain.
On the post: $6.6 Million Ruling Against Lyrics Site, Once Again, Shows How Short Sighted Music Industry Is
Re: Re: Re: Re: Re: Statutory v. actual damages
On the post: $6.6 Million Ruling Against Lyrics Site, Once Again, Shows How Short Sighted Music Industry Is
Re: Re: Re: Re: Statutory v. actual damages
Well, in a sense you're right. I was thinking of putative damages in general. Outside of copyright law, statutory damages almost always serve a putative function (e.g. under the TCPA or FDCPA).
Putative damages, generally, cannot be grossly in excess of actual damages, as BMW v. Gore makes clear. And outside of IP law, you don't necessarily get statutory damages unless some harm is shown; see e.g. Doe v. Chao.
And how do you square that with what the Eighth Circuit says about the damages award being punitive and for violation of the public wrong (rather than the private injury)?
As I said, in general, putative damages should not be wholly disproportionate to the actual damages incurred. And in the Thomas-Rassett case, the award was, without question, grossly excessive. It was far, far higher than the award this court said was the norm for copyright infringement (a single-digit multiple of actual damages). And it was definitely far higher than the maximum award for patent infringement (treble damages). It was also far, far higher than the unconstitutionally excessive putative damages in BMW.
Whether the award is unconstitutionally excessive is a different matter. It's possible for a jury-determined damage award to be unjustly excessive without being unconstitutional. If it's not unconstitutional, then courts really don't have much say in the matter.
On the post: $6.6 Million Ruling Against Lyrics Site, Once Again, Shows How Short Sighted Music Industry Is
Re: Re: Statutory v. actual damages
You don't have to search very far for a cite that backs up my claim:
- Peermusic, III, Ltd., et. al. v. LiveUniverse, Inc.
In case you're wondering: yes, that is the very case that this story is about, and the citation is from the ruling that is embedded above.
On the post: $6.6 Million Ruling Against Lyrics Site, Once Again, Shows How Short Sighted Music Industry Is
Re:
And ironically, that is why most people go to concerts in the first place.
On the post: $6.6 Million Ruling Against Lyrics Site, Once Again, Shows How Short Sighted Music Industry Is
Re: Shortsighted?
First: the economic rights granted by copyright are "property rights" in the same way as liquor licenses or taxi medallions are "property rights." It is an artificial monopoly granted by the government; and it is only granted by the government because it (in theory) provides an overall benefit to the general public. Copyright is supposed to accrue to copyright holders, as an incentive to create and distribute works that otherwise would not reach the public.
So, if the ability to sue (or shut down) lyric sites do not benefit the general public, that ability should not be allowed by law. It's hard to make a case that it is against the public benefit - especially since the lyrics alone, divorced from the music, have no value in the marketplace. Nobody that I know of sells the lyrics separate from the music.
Second: Even traditional private property rights have limits. You can't drive your car into the side of my house, no matter how shortsighted you are.
On the post: $6.6 Million Ruling Against Lyrics Site, Once Again, Shows How Short Sighted Music Industry Is
Re: usual dribble
On the post: UN Wants Multi-Stakeholder Discussions On 'Rethinking Copyright' -- Ignores That The Only Stakeholder That Matters Is The Public
Re: Re: Re: Stakeholders
There's a list of them if you look up "moral rights" on Wikipedia:
http://en.wikipedia.org/wiki/Moral_rights_(copyright_law)
They have links to the actual laws in the various countries (translated to English), if you feel like looking them up.
In all the countries where "moral rights" are recognized, they are considered distinct from "economic rights." They are not transferable to publishers or labels, and the term lengths are almost always different.
The U.S. and Britain have never recognized these "moral rights," and have only passed the bare minimum necessary for compatibility with the Berne Convention (and only recently). At least, not as copyright - the U.S. in particular has always insisted that those rights fall under libel and slander laws.
copyright is for nothing more than censorship and granting monopolies to a privileged class, ie. printers
You're thinking of the English/U.S. tradition. The European (and recently Asian) tradition is very different.
For what it's worth, it wasn't considered censorship - likely because the "economic rights" generally were applicable only to commercial publishers, until very recently. That is, it was usually considered restrictions on commercial speech, which is less protected by e.g. the First Amendment than speech by individuals among the public.
Obviously, when copyright was expanded to cover non-commercial infringement in the 90's, everything changed. I believe this will eventually be considered a huge mistake, and a barbaric restriction on free speech, in the same way that Schenck v. U.S. is considered abhorrent now.
On the post: $6.6 Million Ruling Against Lyrics Site, Once Again, Shows How Short Sighted Music Industry Is
Statutory v. actual damages
Well, they're supposed to be related to actual damages; that notion has a long history in tort law. Obviously, actual damages are often hard to determine, but statutory damages are at least supposed to be in the general ballpark of actual damages (plus extra as a deterrent).
Unfortunately, none of that seems to matter in copyright cases, and statutory damage awards orders of magnitude greater than even theoretical actual damages are often granted. Usually judges don't even bother to ask what copyright holders for estimates of what licensing fees would be, for example.
It would be great if it were different, but that's just a reflection of the copyright-maximalist age we currently live in.
On the post: UN Wants Multi-Stakeholder Discussions On 'Rethinking Copyright' -- Ignores That The Only Stakeholder That Matters Is The Public
Re: Stakeholders
This is a good point, as long as you keep in mind that "moral rights" are limited to things like attribution and integrity. The economic monopoly rights are generally not considered a part of "natural law."
On the post: UN Wants Multi-Stakeholder Discussions On 'Rethinking Copyright' -- Ignores That The Only Stakeholder That Matters Is The Public
Re: What about those who WON'T pay, Mike?
Wait, what? How the hell did you get this idea?
If someone won't pay, then they won't pay. Copyright doesn't change that in the slightest.
sites like Megaupload TAKE someone else's work
Sites like Megaupload have nothing to do with this story, nor with this discussion.
On the post: Stop Saying It's Okay To Censor Because 'You Can't Yell Fire In A Crowded Theater'
Re: Re: Re: Re: Re: Re: Re:
Yeah, I thought we'd had this conversation before...
You've been studying speech issues formally, I get that. I've been interested in speech issues for over twenty years - since the anti-pornography debates in the mid-80's, if not earlier, and I've been reading free speech case law all that time. I have a personal stake in free speech issues, as I produce art that is unpopular, as do other artists that I like.
So, I know what I'm talking about, and you're wrong, as you were in our previous discussion. The First Amendment was created specifically to disallow the government censorship of any viewpoint, no matter how it was expressed. There was no distinction made between speech and "expressive conduct," then or now. It's true that the First Amendment has been applied in situations that the Founders didn't consider; but they did not consider that the government would ever attempt to suppress speech in those situations, either. And expression was seen by the Founders as a natural (inalienable) right; something that no just government had a right to interfere with.
Oliver Wendell Holmes was explicitly disavowing the "natural rights" view of free speech when he decided Schenck. This is not a surprise, as he didn't believe in natural rights at all:
If the middle paragraph reminds you of the "2 + 2 = 5" speech from Orwell's 1984, you're not alone. Holmes did not believe in human rights at all; he believed that people's "rights" emanated from ideas that survived as the "fittest" to society. Note that Holmes also sanctioned forced sterilization, in Buck v. Bell:
It may seem like a cheap shot to bring it up, but it is an example of Holmes' belief that the "public welfare" should trump human rights. And it is also an example of the consequences of this belief.
Thus Holmes, and the court in Schenck, contracted First Amendment protections; and, in fact, they had already been shrinking for quite some time before that (especially, and unsurprisingly, during the Civil War). It wasn't until the court returned to an "inalienable right" view of free speech that First Amendment jurisprudence started returning to what the Founders originally intended. And today, the Schenck case (along with Debs and Frohwerk) are considered shameful, part of the dark ages in the history of free speech, and fortunately long-overridden.
When people use the "fire in a crowded theater" quote, they are essentially arguing for a return to these dark ages, whether they are aware of it or not (and usually they are not).
And unlike you, I don't go around calling everything "censorship," expanding the meaning so much that it covers just about everything.
My definition of "censorship" is pretty much the same as the law's: the government suppression of expression.
I will admit that I have more of an absolutist view of the First Amendment than some other people - that any government regulation of speech is wrong, and that such regulations must protect human rights that are equally as fundamental. But this is a "bias" that I'm not even remotely ashamed of, and I think everyone should have it.
Some censorship may necessary, and may not run afoul of the First Amendment. But that doesn't mean it's not censorship, just that it's not unconstitutional censorship.
And that is - without question - what the people I quoted are arguing. They are arguing for censorhip, by arguing that it's not unconstitutional censorship. Which is pretty much the same argument that all people make when they want to censor something. And they usually quote Holmes when they do it.
I'm willing to bet you've made such an argument yourself...
On the post: Stop Saying It's Okay To Censor Because 'You Can't Yell Fire In A Crowded Theater'
Re: Re: Re: Re: Re:
Well, that's not exactly surprising, since you seem to have no love for the First Amendment.
Those are uses of the phrase to point out that free speech isn't absolute.
No, they are not. They are saying, "Free speech doesn't apply to screaming 'Fire.' Speech X is exactly the same as screaming 'Fire,' so doesn't deserve to be protected by the First Amendment."
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