The court makes clear that the test is subjective bad faith.
That's not quite true, or at least, it's not the full story:
[I]n order for a copyright owner to proceed under the DMCA with "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law," the owner must evaluate whether the material makes fair use of the copyright. An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.
Failing to take fair use into consideration is enough to show that the copyright owner "acted in bad faith." That consideration is certainly subjective; and as long as that subjective belief is that it is not fair use, they should not be liable under 512(f).
But they must at least make that determination. For example, a "subjective belief" that the material is not authorized by the copyright holder is not sufficient.
Considering the fact that UMG has shown that they had a human consider the fair use argument--twice--before taking down the material, I don't see how they could possibly be found to be in subjective bad faith. So it's not just a "big hurdle to jump," the claim against UMG is just not supported by the facts.
I don't believe that's what happened.
Sean Johnson, the human who viewed the content (twice), did not explicitly consider fair use. He merely followed a set of "rules" for taking down the content (like checking off boxes in a form). UMG is arguing that merely following the rules means that fair use was considered.
I excpect the issue will be whether UMG's rules were drafted with a consideration of fair use in mind. It is here where UMG might be in trouble. UMG clearly did not consider fair use when deterimining whether a use is authorized by law (rather than UMG or Prince himself) - according to their own deposition, the only thing they considered was compulsory licensing. The rules that Johnson followed appear to have been set up only to determine if the use would be subject to synchronization royalties. That's just a guess, because the text from the Johnson declaration (as well as those of Allen, Klaus, and Moffat) has been redacted.
But at the end of the day, I doubt Lenz will win. Even though fair use was not explicitly considered, the determination of whether a video is subject to synch licensing could incidentally be enough for a fair use determination. I expect that the judge will rule that it was.
My guess is that the court won't punish UMG, arguing that it did all it needed to do.
Unfortunately, I agree. UMG is making some extraordinarily dubious claims in its filings, but the plain fact is that Lenz and the EFF need to show that UMG did not even bother with a good faith attempt to determine that the video was not fair use. That's going to be a big hurdle to jump.
I do hope I'm wrong, though. In cases like these, there absolutely needs to be some sort of remedy for the victims of bogus takedown notices.
Great argument Karl, except that fair use is at very best a judgement call, and not something so specifically set out in law.
It's not my argument, it's the argument of the court in Northern California.
Regardless, you're right, fair use is certainly not a black-and-white affair. What the case says is required, is a good faith effort to determine that the use is not fair, before a DMCA takedown notice is sent.
The issue here is that the hosting company, rather than dealing with their client in a fair manner, and rather than giving their client time to make a reasonable reply, instead cut them off, period.
I think there's plenty of blame to go around. Pearson was partially at fault by not considering fair use before issuing the takedown (especially since "multiple copies for classroom use" are explicitly mentioned as a fair use).
Still, regardless of whether Pearson's takedown was legit or not, the actions of ServerBeach are certainly outside of the realm of reason, and certainly were not required by any law. They unquestionably deserve the lion's share of blame for this situation. On that we agree.
It's interesting to me that if this action was undertaken or required by the government, then it would certainly be considered a violation of the First Amendment. Yet many people justify similar actions by the government (e.g. the ICE seizures) without thinking that it involves the First Amendment at all. Many copyright maximalists have advocated that this be standard operating procedure with whatever they think "pirate sites" happen to be at the moment.
Fair use claims are the rebuttal to a DMCA notice, not something the right holder needs to determine themselves.
Actually, that's not true.
Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law," the owner must evaluate whether the material makes fair use of the copyright. An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.
I just want Mike to engage me and others who challenge him on the merits.
You have not "challenged him on the merits" for years. Others have - and he has engaged them.
Here's a simple test. Look at Mike's profile, and his comment history. The vast majority of his comments are where he is replying to his detractors, including direct quotes, usually with links to sources outside Techdirt to back up his claims.
Now look at yours. Here's how you "challenge" people "on the merits:"
Fact: Mike will bitch and moan about every perceived "victim" of the six strikes program--no matter how remote the issue, if it can possibly be spun as even suggesting anything conceivably negative it will be glorified and hyper-focused on as if the "only true way; the universe incarnate." LOL!
[Some asshole A.C.:]You only laud those that support your pro-piracy agenda.
You are truly a sociopath.
Amen.
Can't wait for all the whining to begin. You know the zealots will be salivating for any story they can prance on that discredits the program.
LMAO. You have issues.
You guys love to throw out the "violates due process!" FUD, having learned to do so from your anti-copyright zealot leader...
Or, you want to frame him as an extremist in order to slander and discredit his views. The more I pay attention to your actions, the more likely that seems. "If I lie about him enough times in enough places, eventually someone is bound to believe it!"
Just look at how crazy it makes him when I challenge him.
If you think that Mike is the one acting crazy, you need some serious help.
As a simple courtesy to everyone who reads the site, please get that help before you post here again.
I truly don't understand why you're so defensive about Mike.
I am not "defensive about Mike." I am offended by you.
This website is not a venue for some sort of personal grudge match between you and Mike. It is a public forum. By posting off-topic ad hominem attacks on Mike, for reasons that have nothing to do with the story in question, you are spitting on a public forum. You are showing disrespect to everyone who views this site.
It is annoying, it makes you look bad, and it is completely unethical. And it has nothing to do with Mike at all.
As to why I'm even interested: I did used to debate you, and it was informative. At that point, you were debating the law; and debating you helped me understand the law better. (And also that you're usually wrong about it.) But when you stopped posting as Average_Joe, and started posting as an A.C., you turned from a knowledgable debate opponent into an obvious liar and vindictive asshole.
I honestly didn't know that it was you doing this. I probably should have. So perhaps I'm angry at myself for wasting time with you, when you're so obviously an amoral, psychotic asswipe, who cares only about persecuting "pirates" and doesn't give a rat's ass about the interests of artists and creators.
And I am personally involved about the interests of artists and creators. It's what brought me to this site in the first place. I can tell you right now that you're not on our side.
The fact remains that he runs away from debate from me.
The fact that remains is that you have not been interested in "debate" for a very, very long time. You make personal attacks interspersed with loaded questions and sprinkled with outright lies. That's not "debate." That's being a douche.
All he has to do is prove me wrong by actually having a discussion with me where he tackles the issues head on.
First of all, he does not owe you anything. You are a commenter on his website. Techdirt allows you to post your opinions here - unlike, say, trichordist. That is to Techdirt's credit. But Mike has no obligation to "prove you wrong."
But even though he doesn't owe it to you to prove you wrong, he has. Repeatedly. You have been consistently wrong on the legal issues. Seeing as you're trying to be a lawyer, it is in your own best interests to listen to Mike and learn from your mistakes. But of course, you have zero interest in listening.
The non-legal issues have all been "why do you beat your wife" type questions. The "moral" issue is a big one. After Mike answered your question - with the same answer he gave before you even asked - you just attacked him personally, and then said he didn't answer the question, when he did.
No wonder he doesn't want to debate you. You're not debating.
At least you're honest, Karl.
And in my honest opinion, Mike is presenting a consistent and coherent case for his opinions (whether you agree with them or not), while you have behaved like a psychopath, who clearly wouldn't know a moral act if it came up and bit him in the ass.
The truth is that Mike Masnick runs from criticism and debate like no other. I'm ready to discuss the difficult issues with him any place, any time, any where. He's the one that runs off like a little child.
They are not "pirates." They are people with an IP address the plaintiffs claim was used for piracy. They could be pirates; their roommates could be pirates; they could have an unsecured IP address; or the plaintiffs could simply be wrong.
Sweet. Can I "victimize" your property rights?
If those "property rights" are purely legal fictions; if they're granted solely for the benefit of you and your buddies; and if that "victimization" results in no harm to me, and leaves me with the same use of the "property" that I had before... Then sure, go for it.
Also, "property rights" can't be "victimized." Only human beings can.
It'd be your fault that I chose to violate your right!
It's not that it would be "my fault." It would be that I'm not a victim. The fact that it's totally your fault doesn't change that.
If that exact same action could result in my benefit, and I choose not to make it benefit me... well, that's certainly my fault. I wouldn't be a victim either way, but in this case, I'd also be stupid.
I'm just a victim!
Look, let's assume for the sake of argument that the people with those IP addresses are actually guilty. Even so, about the worst that could be said of them is that they did something ethically as bad as sneak into a movie theater.
Picture this. You get a registered letter in the mail. It says that someone fitting your description was seen sneaking into a theater a month ago. The people who sent the letter didn't own the theater back then, but all the same, you'd better pay up $3000, or they're going to sue. If you even want to prove your innocence, you'll have to hire an expensive lawyer, take time off of work, and fly to a foreign state for a lengthy trial. And if you lose, you're going to face up to $150,000 in damages, plus lawyer's fees, on top of everything else.
If that happened, then yes, I'd call you a victim. Even if you actually did sneak into that movie theater.
Now, consider what it would be like if you didn't sneak into that theater.
I don't think any human being would consider this situation "justice." Certainly the judge didn't.
Are you suggesting that the plaintiff in this case is not a victim who has had his rights violated by many, many people?
They are not victims.
Here's how Merriam-Webster defines "victim":
a (1) : one that is injured, destroyed, or sacrificed under any of various conditions [a victim of cancer] (a victim of the auto crash) [a murder victim] (2) : one that is subjected to oppression, hardship, or mistreatment [a frequent victim of political attacks]
b : one that is tricked or duped [a con man's victim]
Absolutely none of this applies in this case. If anything, it would be a better description for the defendants.
It is especially inappropriate when the "rights" that the plaintiffs have, are exclusively statutory rights (not human rights, natural rights, or innate rights); are granted by the very class of people they are suing (the general public); and exist solely to benefit that class of people. Completely unlike, say, anything in the Bill of Rights.
They are not victims. They are complainants in a civil lawsuit. Even if the allegations were true, it is pure hogwash (or, to borrow your oft-misused phrase, "FUD") to claim that they are victims.
You know, I was going to write this whole long post, but then I realized that you're just an utter loon.
I have been acquainted with Amanda for a very long time - before she even met Brian. I know, personally, that what you are saying is total, 100% bullshit.
But I think that everyone else knows it too. I mean, she would have to buy out Kickstarter, Sea Org, Twitter, and the federal government in order for your accusations to be true.
It's pretty obvious that you're just a guy who wants people to admire the shininess of his tin-foil hat.
you boycott big content, but do you pay for small content?
The last two CD's I bought were Lightning Bolt, and Gondoliers, both at the show they played together.
So: yes. Yes, I do.
The article you're referencing is a joke. It should read: "Neko Case MP3's on third-party websites come up in a DMCA-compliant search engine, and the search engine displays advertisements served by a fourth party, who also serves advertisements to millions of other websites, and whose clients include Macy's, Levi's, Princess Cruises, Skype, Yahoo, Marvel and Electronic Arts."
But I guess Lowery thinks "exploited" has more truthiness.
Ah, goodie. The shill for David Lowery's personal gripe site rears its ugly head.
You do know that site is a joke, right? It's full of absolute falsehoods, half-truths, appeals to emotion, ad hom attacks, and is generally a waste of time.
Not to mention that his attempt to shame Emily White is based on behavior that the study in the article says is considered morally acceptable by 76% of the people in her age group.
the WHOLE purpose of copyRIGHT is to PROTECT that investment of time and other energies to PROPERLY reward the creator. I don't think even you pirates actually (can) disagree with that...
Not only do we disagree with that ("pirates" or not), so does Congress and the Supreme Court.
The WHOLE purpose of copyright is to "Promote the Progress of Science." It is not to "protect an investment," but to "serve the cause of promoting broad public availability of literature, music, and the other arts" (Twentieth Century Music v. Aiken). "The sole interest of the United States, and the primary object in conferring the monopoly, lie in the general benefits derived by the public from the labors of authors" (Fox Film Corp. v. Doyal). "The copyright law, like the patent statutes, makes reward to the owner a secondary consideration" (U.S. v. Paramount Pictures).
And, in the words of Congress: "The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given." (H.R. Rep. No. 60-2222)
But you're basically just saying to hell with ALL copyright.
Strawman alert! Please let us know where Mike, or anyone who writes for Techdirt, has advocated for copyright abolition. They haven't, and are not. Some of the commenters here have, but they don't speak for everyone else (including me).
Saying copyright laws should be based on empirical evidence, or should reflect social mores, is not saying "the hell with ALL copyright." It makes you a reformer, not an abolitionist.
Here's a definition even more useful than whether copying is theft: "file sharing" sites making money off products they got for free IS piracy!
Except they are not making money on "products they got for free." They do not "get" any "products." They provide services to users, and when they do make money (most don't, or make very little), they make money from those users. If they are ad-supported, they make money when users click on those ads. If they sell subscriptions (most don't), they get money when users pay for those subscriptions.
But unlike iTunes, Amazon, Tunecore, or CD Baby, they do not charge money to content producers to use their product. On the other hand, most do not pay content producers, either. A small minority - like Megaupload - did pay users who uploaded content. But that could be - and was - used by content producers, to the same degree as it could be used by people who uploaded pirated material. Of course, after the Megaupload fiasco, the few that did pay users stopped doing that altogether.
YES, Mike, Holder has scored a victory, the sites are NOT distributing stolen content!
Except that neither the Megaupload seizure, nor the blocking of The Pirate Bay, resulted in any decrease in the amount of file sharing. As is made clear in the post that you are commenting on.
If "stopping piracy" is the goal, it is a failure.
Not to mention that a lot (read: most) musicians also have to find day jobs and work full time outside of music when they're not touring these days. Even those with record deals.
Whether fortunately or unfortunately, this has always been the case. Almost nobody on a label made money from recorded music; they always made money from touring.
Even the highest-grossing artists in the world always made more money from touring than they ever did from recorded music royalties. For example, the highest-grossing musical artist in 2004 was Paul McCartney. How much of his music-related income was due to royalties from recorded music? Less than 15%. And that was pretty typical at the time - of the top 35 earning musicians, two made the majority of their money from royalties off of recorded music. (And those were also producers of other artists' albums.)
If you view copyright as a way for artists to actually gain income, then copyright has always been a complete failure.
More importantly, anyone can read my posts on this thread and then read the ones from the piracy-loving freetards here, and it's pretty obvious which person speaks from experience.
You're the one that didn't even know that record labels keep the masters after they drop a band.
That's, like, Music School 101 stuff.
Well, either that, or you did know that, and were lying.
Also, it must once again be reiterated on this pro-piracy propaganda site, that when a band is dropped from a label, their entire debt is forgiven.
It must be again reiterated that this is not even remotely true.
When a band is dropped from their label, they are released from the obligations to record future albums under their contract. But the copyrights (and masters) for the already-produced albums remain with the label.
And their debts are not "forgiven." They still have to be paid back out of their royalties from the records that are already released. Just like they would be if they were still on the label.
Just a little bit of factual information in case some poor bastard actually believes that the above A.C. is not a liar and major label apologist.
I was away from this thread for a while, thus the late reply.
You seriously think Dover and CD Sheet Music are encouraging new artistic creation by diverting money that would have been spent on real publishing companies who actually ARE doing the innovating and giving it instead to a music photocopying company?
First of all: since we're talking about works in the public domain, the "real" publishing companies are not "encouraging new artistic creation" any more than Dover is.
And they certainly wouldn't be "encouraging new artistic creation" if they were allowed to have a copyright on works after the artists' copyright expires, which is exactly what you are suggesting. At that point, neither Dover nor Schirmer are paying the artists a dime, so how could Schirmer even possibly "encourage new artistic creation" any more than Dover?
What is being encouraged is increased distribution to the public, which is another reason the public grants copyrights to authors.
Also keep in mind that being put into the public domain also means that others are allowed to build upon those works. In this way, the public domain directly increases artistic production.
Second of all: it's pure bunkum to say that Dover is "diverting money" from the "real" publishing companies. It's like saying a pizza shop that sells a slice for $2.50 is "diverting money" from a pizza shop across the street that sells a slice for $3.50. By that definition, the "real" publishers are "diverting money" from Dover.
Third of all: Dover editions may not have many bells and whistles, but anyone who has ever owned one of their copies of (say) the collected works of Shakespeare would hardly call them a "photocopying company." If they are, then the "real" publishers are "photocopying companies" as well. They don't do anything different than Dover, at least with regards to works not under the authors' copyrights.
In a free market, consumers decide if the old edition is still worthy of purchasing or if they should move on to a newly-innovated edition.
And that is exactly what they do when they buy a Dover score, instead of Schirmer's. Or when they buy a nice, new, leather-bound edition of Shakespeare's works instead of the old paperback Dover version.
But when it comes to works still under copyright, consumers have no choice. Copyright is a monopoly on a specific work. With regards to that work, copyright holders are not price takers, but price makers. Price is determined neither by consumer demand, nor by marginal cost; it is fixed by the copyright holder. It is exactly the opposite of what happens under perfect competition.
You have not convinced me that it is more right for Dover to profit from Schirmer's work of 150 years ago than it is for Schirmer to benefit from their work 150 years ago.
And you have not convinced my that it is right for anyone to continue to profit off of something, 150 years after they have ceased to do any work on it whatsoever.
But, hey, why stop at 150 years? Why not 1500? Why not make it eternal?
Sure, the economy would nosedive, learning would be quashed, and human progress would grind to a halt. But hey, that's only "right," right?
why didn't they write into their contracts that the deals were null & void should the label be sold?
You're assuming the artists actually have the power to write stuff into their contracts. Generally speaking, they do not.
In order to even start the negotiating process, artists have to sign a "deal memo" with the label. This means that, no matter what, the artist will sign with that label alone. If they want to sign with another, that other label will have to "buy out" their contract - something most labels aren't willing to do with new talent, and if they do, it leaves the artists in an even worse bargaining position.
The only way concessions will be made by the label, is if they're willing to give up those concessions in order to end the negotiation process sooner, so they can put out the album faster. This works with small stuff - a point here, a point there - but not with something as big as a "null & void" clause. The label would simply reject the clause, and wait until the artists were forced to accept it.
That's the way it worked in the pre-360 days, at least (and I have no information that it's gotten any better). I know that many of the artists on Parlophone (e.g. Blur) signed during this time.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
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That's not quite true, or at least, it's not the full story:
Failing to take fair use into consideration is enough to show that the copyright owner "acted in bad faith." That consideration is certainly subjective; and as long as that subjective belief is that it is not fair use, they should not be liable under 512(f).
But they must at least make that determination. For example, a "subjective belief" that the material is not authorized by the copyright holder is not sufficient.
Considering the fact that UMG has shown that they had a human consider the fair use argument--twice--before taking down the material, I don't see how they could possibly be found to be in subjective bad faith. So it's not just a "big hurdle to jump," the claim against UMG is just not supported by the facts.
I don't believe that's what happened.
Sean Johnson, the human who viewed the content (twice), did not explicitly consider fair use. He merely followed a set of "rules" for taking down the content (like checking off boxes in a form). UMG is arguing that merely following the rules means that fair use was considered.
I excpect the issue will be whether UMG's rules were drafted with a consideration of fair use in mind. It is here where UMG might be in trouble. UMG clearly did not consider fair use when deterimining whether a use is authorized by law (rather than UMG or Prince himself) - according to their own deposition, the only thing they considered was compulsory licensing. The rules that Johnson followed appear to have been set up only to determine if the use would be subject to synchronization royalties. That's just a guess, because the text from the Johnson declaration (as well as those of Allen, Klaus, and Moffat) has been redacted.
But at the end of the day, I doubt Lenz will win. Even though fair use was not explicitly considered, the determination of whether a video is subject to synch licensing could incidentally be enough for a fair use determination. I expect that the judge will rule that it was.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Unfortunately, I agree. UMG is making some extraordinarily dubious claims in its filings, but the plain fact is that Lenz and the EFF need to show that UMG did not even bother with a good faith attempt to determine that the video was not fair use. That's going to be a big hurdle to jump.
I do hope I'm wrong, though. In cases like these, there absolutely needs to be some sort of remedy for the victims of bogus takedown notices.
On the post: Textbook Publisher Pearson Takes Down 1.5 Million Teacher And Student Blogs With A Single DMCA Notice
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It's not my argument, it's the argument of the court in Northern California.
Regardless, you're right, fair use is certainly not a black-and-white affair. What the case says is required, is a good faith effort to determine that the use is not fair, before a DMCA takedown notice is sent.
The issue here is that the hosting company, rather than dealing with their client in a fair manner, and rather than giving their client time to make a reasonable reply, instead cut them off, period.
I think there's plenty of blame to go around. Pearson was partially at fault by not considering fair use before issuing the takedown (especially since "multiple copies for classroom use" are explicitly mentioned as a fair use).
Still, regardless of whether Pearson's takedown was legit or not, the actions of ServerBeach are certainly outside of the realm of reason, and certainly were not required by any law. They unquestionably deserve the lion's share of blame for this situation. On that we agree.
It's interesting to me that if this action was undertaken or required by the government, then it would certainly be considered a violation of the First Amendment. Yet many people justify similar actions by the government (e.g. the ICE seizures) without thinking that it involves the First Amendment at all. Many copyright maximalists have advocated that this be standard operating procedure with whatever they think "pirate sites" happen to be at the moment.
But that's not relevant to this particular story.
On the post: Textbook Publisher Pearson Takes Down 1.5 Million Teacher And Student Blogs With A Single DMCA Notice
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Actually, that's not true.
- Lenz v. Universal Music
On the post: Megaupload Renews Request For Criminal Charges To Be Temporarily Dismissed; Reminds Judge Of Earlier Request
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You have not "challenged him on the merits" for years. Others have - and he has engaged them.
Here's a simple test. Look at Mike's profile, and his comment history. The vast majority of his comments are where he is replying to his detractors, including direct quotes, usually with links to sources outside Techdirt to back up his claims.
Now look at yours. Here's how you "challenge" people "on the merits:"
And let's not forget that you've been doing this for a very, very long time.
Yeah, it's all about "the merits..."
Considering how extremist his views are
His views are far more mainstream than yours are. You probably think otherwise because you repeatedly attribute viewpoints to him that he does not actually hold.
Or, you want to frame him as an extremist in order to slander and discredit his views. The more I pay attention to your actions, the more likely that seems. "If I lie about him enough times in enough places, eventually someone is bound to believe it!"
Just look at how crazy it makes him when I challenge him.
If you think that Mike is the one acting crazy, you need some serious help.
As a simple courtesy to everyone who reads the site, please get that help before you post here again.
On the post: Megaupload Renews Request For Criminal Charges To Be Temporarily Dismissed; Reminds Judge Of Earlier Request
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I am not "defensive about Mike." I am offended by you.
This website is not a venue for some sort of personal grudge match between you and Mike. It is a public forum. By posting off-topic ad hominem attacks on Mike, for reasons that have nothing to do with the story in question, you are spitting on a public forum. You are showing disrespect to everyone who views this site.
It is annoying, it makes you look bad, and it is completely unethical. And it has nothing to do with Mike at all.
As to why I'm even interested: I did used to debate you, and it was informative. At that point, you were debating the law; and debating you helped me understand the law better. (And also that you're usually wrong about it.) But when you stopped posting as Average_Joe, and started posting as an A.C., you turned from a knowledgable debate opponent into an obvious liar and vindictive asshole.
I honestly didn't know that it was you doing this. I probably should have. So perhaps I'm angry at myself for wasting time with you, when you're so obviously an amoral, psychotic asswipe, who cares only about persecuting "pirates" and doesn't give a rat's ass about the interests of artists and creators.
And I am personally involved about the interests of artists and creators. It's what brought me to this site in the first place. I can tell you right now that you're not on our side.
The fact remains that he runs away from debate from me.
The fact that remains is that you have not been interested in "debate" for a very, very long time. You make personal attacks interspersed with loaded questions and sprinkled with outright lies. That's not "debate." That's being a douche.
All he has to do is prove me wrong by actually having a discussion with me where he tackles the issues head on.
First of all, he does not owe you anything. You are a commenter on his website. Techdirt allows you to post your opinions here - unlike, say, trichordist. That is to Techdirt's credit. But Mike has no obligation to "prove you wrong."
But even though he doesn't owe it to you to prove you wrong, he has. Repeatedly. You have been consistently wrong on the legal issues. Seeing as you're trying to be a lawyer, it is in your own best interests to listen to Mike and learn from your mistakes. But of course, you have zero interest in listening.
The non-legal issues have all been "why do you beat your wife" type questions. The "moral" issue is a big one. After Mike answered your question - with the same answer he gave before you even asked - you just attacked him personally, and then said he didn't answer the question, when he did.
No wonder he doesn't want to debate you. You're not debating.
At least you're honest, Karl.
And in my honest opinion, Mike is presenting a consistent and coherent case for his opinions (whether you agree with them or not), while you have behaved like a psychopath, who clearly wouldn't know a moral act if it came up and bit him in the ass.
On the post: Megaupload Renews Request For Criminal Charges To Be Temporarily Dismissed; Reminds Judge Of Earlier Request
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Thanks a bunch for proving AC's point.
On the post: Megaupload Renews Request For Criminal Charges To Be Temporarily Dismissed; Reminds Judge Of Earlier Request
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Truth hurts, don't it, Joe?
At least that AC was talking about your actual words and behavior, instead of words you never said, and behavior you never participated in.
Unlike you.
On the post: Judge Calls Copyright Troll's Bluff
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Here's another example. In theory, I have air rights above my property. Every day, dozens of birds violate my property rights.
Am I a "victim" of those birds?
On the post: Judge Calls Copyright Troll's Bluff
Re: Re: Re: Re: Re: Re: Re: "victims"
They are not "pirates." They are people with an IP address the plaintiffs claim was used for piracy. They could be pirates; their roommates could be pirates; they could have an unsecured IP address; or the plaintiffs could simply be wrong.
Sweet. Can I "victimize" your property rights?
If those "property rights" are purely legal fictions; if they're granted solely for the benefit of you and your buddies; and if that "victimization" results in no harm to me, and leaves me with the same use of the "property" that I had before... Then sure, go for it.
Also, "property rights" can't be "victimized." Only human beings can.
It'd be your fault that I chose to violate your right!
It's not that it would be "my fault." It would be that I'm not a victim. The fact that it's totally your fault doesn't change that.
If that exact same action could result in my benefit, and I choose not to make it benefit me... well, that's certainly my fault. I wouldn't be a victim either way, but in this case, I'd also be stupid.
I'm just a victim!
Look, let's assume for the sake of argument that the people with those IP addresses are actually guilty. Even so, about the worst that could be said of them is that they did something ethically as bad as sneak into a movie theater.
Picture this. You get a registered letter in the mail. It says that someone fitting your description was seen sneaking into a theater a month ago. The people who sent the letter didn't own the theater back then, but all the same, you'd better pay up $3000, or they're going to sue. If you even want to prove your innocence, you'll have to hire an expensive lawyer, take time off of work, and fly to a foreign state for a lengthy trial. And if you lose, you're going to face up to $150,000 in damages, plus lawyer's fees, on top of everything else.
If that happened, then yes, I'd call you a victim. Even if you actually did sneak into that movie theater.
Now, consider what it would be like if you didn't sneak into that theater.
I don't think any human being would consider this situation "justice." Certainly the judge didn't.
On the post: Judge Calls Copyright Troll's Bluff
Re: Re: Re: Re: Re: "victims"
They are not victims.
Here's how Merriam-Webster defines "victim":
Absolutely none of this applies in this case. If anything, it would be a better description for the defendants.
It is especially inappropriate when the "rights" that the plaintiffs have, are exclusively statutory rights (not human rights, natural rights, or innate rights); are granted by the very class of people they are suing (the general public); and exist solely to benefit that class of people. Completely unlike, say, anything in the Bill of Rights.
They are not victims. They are complainants in a civil lawsuit. Even if the allegations were true, it is pure hogwash (or, to borrow your oft-misused phrase, "FUD") to claim that they are victims.
On the post: Amanda Palmer Details How All That Kickstarter Money Is Being Spent
Re:
You know, I was going to write this whole long post, but then I realized that you're just an utter loon.
I have been acquainted with Amanda for a very long time - before she even met Brian. I know, personally, that what you are saying is total, 100% bullshit.
But I think that everyone else knows it too. I mean, she would have to buy out Kickstarter, Sea Org, Twitter, and the federal government in order for your accusations to be true.
It's pretty obvious that you're just a guy who wants people to admire the shininess of his tin-foil hat.
On the post: Why The MPAA Can't 'Win The Hearts And Minds' Of The Public: File Sharing Is Mainstream
Re: Re: Re:
The last two CD's I bought were Lightning Bolt, and Gondoliers, both at the show they played together.
So: yes. Yes, I do.
The article you're referencing is a joke. It should read: "Neko Case MP3's on third-party websites come up in a DMCA-compliant search engine, and the search engine displays advertisements served by a fourth party, who also serves advertisements to millions of other websites, and whose clients include Macy's, Levi's, Princess Cruises, Skype, Yahoo, Marvel and Electronic Arts."
But I guess Lowery thinks "exploited" has more truthiness.
On the post: Why The MPAA Can't 'Win The Hearts And Minds' Of The Public: File Sharing Is Mainstream
Re: Re: Unsurprisingly, people favour convenience
Ah, goodie. The shill for David Lowery's personal gripe site rears its ugly head.
You do know that site is a joke, right? It's full of absolute falsehoods, half-truths, appeals to emotion, ad hom attacks, and is generally a waste of time.
Not to mention that his attempt to shame Emily White is based on behavior that the study in the article says is considered morally acceptable by 76% of the people in her age group.
Much more accurate and respectable are the rebuttals by Jeff Price, Gang of Four's Dave Allen, Eliot Van Buskirk at Evolver, or Steve Albini.
On the post: Why The MPAA Can't 'Win The Hearts And Minds' Of The Public: File Sharing Is Mainstream
Re: Copying IS like theft...
the WHOLE purpose of copyRIGHT is to PROTECT that investment of time and other energies to PROPERLY reward the creator. I don't think even you pirates actually (can) disagree with that...
Not only do we disagree with that ("pirates" or not), so does Congress and the Supreme Court.
The WHOLE purpose of copyright is to "Promote the Progress of Science." It is not to "protect an investment," but to "serve the cause of promoting broad public availability of literature, music, and the other arts" (Twentieth Century Music v. Aiken). "The sole interest of the United States, and the primary object in conferring the monopoly, lie in the general benefits derived by the public from the labors of authors" (Fox Film Corp. v. Doyal). "The copyright law, like the patent statutes, makes reward to the owner a secondary consideration" (U.S. v. Paramount Pictures).
And, in the words of Congress: "The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given." (H.R. Rep. No. 60-2222)
But you're basically just saying to hell with ALL copyright.
Strawman alert! Please let us know where Mike, or anyone who writes for Techdirt, has advocated for copyright abolition. They haven't, and are not. Some of the commenters here have, but they don't speak for everyone else (including me).
Saying copyright laws should be based on empirical evidence, or should reflect social mores, is not saying "the hell with ALL copyright." It makes you a reformer, not an abolitionist.
Here's a definition even more useful than whether copying is theft: "file sharing" sites making money off products they got for free IS piracy!
Except they are not making money on "products they got for free." They do not "get" any "products." They provide services to users, and when they do make money (most don't, or make very little), they make money from those users. If they are ad-supported, they make money when users click on those ads. If they sell subscriptions (most don't), they get money when users pay for those subscriptions.
But unlike iTunes, Amazon, Tunecore, or CD Baby, they do not charge money to content producers to use their product. On the other hand, most do not pay content producers, either. A small minority - like Megaupload - did pay users who uploaded content. But that could be - and was - used by content producers, to the same degree as it could be used by people who uploaded pirated material. Of course, after the Megaupload fiasco, the few that did pay users stopped doing that altogether.
YES, Mike, Holder has scored a victory, the sites are NOT distributing stolen content!
Except that neither the Megaupload seizure, nor the blocking of The Pirate Bay, resulted in any decrease in the amount of file sharing. As is made clear in the post that you are commenting on.
If "stopping piracy" is the goal, it is a failure.
On the post: Band Gives Away Latest Album After Label Attempts To Shelve It Until 'Sometime Next Year'
Re: Re: Re:
Whether fortunately or unfortunately, this has always been the case. Almost nobody on a label made money from recorded music; they always made money from touring.
Even the highest-grossing artists in the world always made more money from touring than they ever did from recorded music royalties. For example, the highest-grossing musical artist in 2004 was Paul McCartney. How much of his music-related income was due to royalties from recorded music? Less than 15%. And that was pretty typical at the time - of the top 35 earning musicians, two made the majority of their money from royalties off of recorded music. (And those were also producers of other artists' albums.)
If you view copyright as a way for artists to actually gain income, then copyright has always been a complete failure.
On the post: Band Gives Away Latest Album After Label Attempts To Shelve It Until 'Sometime Next Year'
Re: Re: Re: Re: Re:
You're the one that didn't even know that record labels keep the masters after they drop a band.
That's, like, Music School 101 stuff.
Well, either that, or you did know that, and were lying.
Either way, your credibility does not look good.
On the post: Band Gives Away Latest Album After Label Attempts To Shelve It Until 'Sometime Next Year'
Re: Re: Re: Re:
It must be again reiterated that this is not even remotely true.
When a band is dropped from their label, they are released from the obligations to record future albums under their contract. But the copyrights (and masters) for the already-produced albums remain with the label.
And their debts are not "forgiven." They still have to be paid back out of their royalties from the records that are already released. Just like they would be if they were still on the label.
Just a little bit of factual information in case some poor bastard actually believes that the above A.C. is not a liar and major label apologist.
On the post: Do Bad Things Happen When Works Enter The Public Domain? The Data Says... No
Re: Re: Re: Re: Re: what about...
You seriously think Dover and CD Sheet Music are encouraging new artistic creation by diverting money that would have been spent on real publishing companies who actually ARE doing the innovating and giving it instead to a music photocopying company?
First of all: since we're talking about works in the public domain, the "real" publishing companies are not "encouraging new artistic creation" any more than Dover is.
And they certainly wouldn't be "encouraging new artistic creation" if they were allowed to have a copyright on works after the artists' copyright expires, which is exactly what you are suggesting. At that point, neither Dover nor Schirmer are paying the artists a dime, so how could Schirmer even possibly "encourage new artistic creation" any more than Dover?
What is being encouraged is increased distribution to the public, which is another reason the public grants copyrights to authors.
Also keep in mind that being put into the public domain also means that others are allowed to build upon those works. In this way, the public domain directly increases artistic production.
Second of all: it's pure bunkum to say that Dover is "diverting money" from the "real" publishing companies. It's like saying a pizza shop that sells a slice for $2.50 is "diverting money" from a pizza shop across the street that sells a slice for $3.50. By that definition, the "real" publishers are "diverting money" from Dover.
Third of all: Dover editions may not have many bells and whistles, but anyone who has ever owned one of their copies of (say) the collected works of Shakespeare would hardly call them a "photocopying company." If they are, then the "real" publishers are "photocopying companies" as well. They don't do anything different than Dover, at least with regards to works not under the authors' copyrights.
In a free market, consumers decide if the old edition is still worthy of purchasing or if they should move on to a newly-innovated edition.
And that is exactly what they do when they buy a Dover score, instead of Schirmer's. Or when they buy a nice, new, leather-bound edition of Shakespeare's works instead of the old paperback Dover version.
But when it comes to works still under copyright, consumers have no choice. Copyright is a monopoly on a specific work. With regards to that work, copyright holders are not price takers, but price makers. Price is determined neither by consumer demand, nor by marginal cost; it is fixed by the copyright holder. It is exactly the opposite of what happens under perfect competition.
You have not convinced me that it is more right for Dover to profit from Schirmer's work of 150 years ago than it is for Schirmer to benefit from their work 150 years ago.
And you have not convinced my that it is right for anyone to continue to profit off of something, 150 years after they have ceased to do any work on it whatsoever.
But, hey, why stop at 150 years? Why not 1500? Why not make it eternal?
Sure, the economy would nosedive, learning would be quashed, and human progress would grind to a halt. But hey, that's only "right," right?
On the post: Big Name Musicians Threaten To Strike Over Parlophone Sell-Off After Discovering They're 'Just Assets'
You're assuming the artists actually have the power to write stuff into their contracts. Generally speaking, they do not.
In order to even start the negotiating process, artists have to sign a "deal memo" with the label. This means that, no matter what, the artist will sign with that label alone. If they want to sign with another, that other label will have to "buy out" their contract - something most labels aren't willing to do with new talent, and if they do, it leaves the artists in an even worse bargaining position.
The only way concessions will be made by the label, is if they're willing to give up those concessions in order to end the negotiation process sooner, so they can put out the album faster. This works with small stuff - a point here, a point there - but not with something as big as a "null & void" clause. The label would simply reject the clause, and wait until the artists were forced to accept it.
That's the way it worked in the pre-360 days, at least (and I have no information that it's gotten any better). I know that many of the artists on Parlophone (e.g. Blur) signed during this time.
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