Mike, your departments are often witty or pointed. In this case, I think you got it wrong. The correct department is "Another-It-Doesn't-Matter-Subjective-Invention." I get your point (and the author's) and agree that if the law extant 275 years later were in place then, it might not have been written or written as it was. That said, there are PLENTY of examples - look at the current off-broadway show Rock of Ages - that do something similar (in a modern way) and properly license everything they need. Shows which use collections of songs are not unusual and some have been wildly successful (Jersey Boys, for example, or just about any Vegas-style revue). I understand it's a mixed metaphor in that the modern shows use the whole music and lyrics (or music with parody lyrics), licensed (presumably) from the rights holders. But that's the way things have been done for the last 100+ years. 275 years ago, things we different, and it was okay and legal for then. Guess what? 50 or 100 years from now (or maybe just 5, 10 or 25 years), the customs and legalities will be different still!
Love the AC's complaining of the "sheer amount of trolls" especially when the majority of comments so far are ANTI Walmart. Really odd.
Yes, yes. Walmart is evil. Predictably, the very first comment posted was a "Walmart is evil" diatribe. And now yours. Nothing to do with Mike's post or point, but always fun to bash big business, I guess.
Let's just all agree to stipulate that Walmart is evil in all ways and, at the same time, a provider of jobs to hundreds of thousands of workers worldwide and a supplier of low cost products to millions of consumers. It's a paradox and we can't solve it here. Okay? Done, then.
On the POINT of the post, I agree with Mike that Walmart is overstepping the intent of trademark protections. My initial read of the language Mike used in describing Walmart's actions ("bully" and "censor and silence organizing workers") led me to believe that he was taking a pro-union slant on this, which would be largely counter to everything Mike says he stands for in business visioning and the separation of moral issues from judgments on business approaches and models. However, I took the time to re-read and I found the Mike's point stuck closely around the issue of trademark over-zealousness and that I was likely reading too much into the union-ish verbiage. Interesting how the mind works.
Here's an interesting finding buried in the article. It surely indicates that a majority of the kids surveyed know that illegal downloading reduces income to the uncompensated artist.
"More than half of those surveyed said that companies that manufacture digital music players and mobile phones should pay fees to artists to compensate them from losses due to copies made on their devices."
What they probably don't understand is that any fees paid by equipment manufacturers would 1) come out of their consumer pockets in the form of raised device prices and 2) would only go to artists indirectly via various royalty and industry groups.
But I do find it interesting that a majority of those surveyed know that they are getting content for free which they should be paying for, yet do it anyway.
1. I agree with Mike (shocker) that having a paywall requires a hook...something that creates value and imperative to get people to pay. WSJ and some other national newspapers probably have that, if done well. Most don't. That's a problem for this approach, definitely.
2. If done thoughtfully, paywalls do not have to be anti-search engine. Exposing enough teaser text and media with proper SEO can do the trick.
3. Despite all the Fox and FoxNews references above, I have seen no mention, even in his competitor sites (like The Guardian) of any intention to paywall any sites other than his newspapers.
4. Note that for all your News Corp-In-Freefall thinkers, News Corp's major divisions are still quite profitable (see: http://www.guardian.co.uk/media/2009/aug/06/rupert-murdoch-website-charges), just not as profitable as they were a year ago. But there are very few businesses that haven't fallen substantially year-over-year, and many that see less than zero net. News Corp is not in a bad position relative to its competitors.
5. I do find is humorous and a bit disappointing how readily even thoughtful people here and elsewhere seem to dismiss Murdoch as a floundering fool, someone who doesn't understand his business, his markets or the complexities of consumer relations. Murdoch - and his team - is a leading multimedia visionary, one of the tops in the last 50 years. He has both lead markets and created new opportunities out of whole cloth where non existed previously. I don't think he has all this figured out yet, but to intimate he has suddenly become blind to the changing ways of markets and to the desires of his consumers is folly. After all, hasn't he been accused relentlessly for 30 years of doing not much more than pandering to what the market wants...the lowest common denominator and such? I say that if any major media outfit is going to figure out the right mix to stay in business at a large scale and give the market want it wants, News Corp is probably it.
In the context you set, yes, if proven true, I'd say he was running a criminal enterprise and broke the law. The job of a jury is to determine guilt or innocence vis-a-vis the law, not to interpret the validity, fairness or constitutionality of the law itself. Jury nullification is a generally bad thing, and when it occurs, it is often for reasons which have nothing to do with the law, rather the circumstances of the case. So yes, you have characterized my point of view. Perhaps I just disagree that "attitude" and "point of view are synonymous or carry equal connotations.
And I do agree that, otherwise, we seem to be in violent agreement.
He, Mr. AC, note that the context for my comment was "if you read the comments here on DMCA posts a good deal...." Not just this post but DMCA posts found fairly regularly on TechDirt. And a careful reading reveals that I'm not saying that people think DMCA doesn't exist (as you oddly introduced to your thoughts above), but just that they misunderstand or have never actually read what it says or they fail to understand that it does carry the force of law, like it or not. Sorry, but there's no real controversy here.
""Well, someone wrote it on paper and told me I have to do it..." This isn't a chore that mom wrote on the wall for you to do, it's the law. I agree (for the umpteenth time) that DMCA needs to be changed, but until it is, breaking it is at your own peril.
As for the difference between civil disobedience and a criminal enterprise...if you can't see that, I'm at a loss. Again, the profit motive in this case is key, as it is in the DMCA legislation.
"Furthermore, a law that is unjust but only applies to a few is not less unjust" I'm confused because in your earlier post you said that the law would be effectively unenforceable "because doing so would criminalize the majority of the population." So is it a few (hint: the answer is yes) or is it a majority who are impacted? Of course the law protects equally, whether one is affected or 100 million.
And on "I don't mean you, specifically, I mean anyone with that attitude." Okay, fair enough. But you are still completely misreading my "attitude."
Ummm...don't know what "attitude" you are reading into my statement, but it's purely in your mind.
The fact is that the vast majority of people in the US are likely not engaged in activities explicitly criminalized by DMCA. The uproar - rightly so, in my book - is among those who are engaged in lots of electronic content consumption and manipulation. I know that reading TechDirt all the time makes it *seem* like "everyone" is doing the same thing and is outraged, but I don't think the actual numbers from the complete real world prove that out. Of the millions of XBoxes and Wii's sold in the US, I'd bet (and am open to stats if anyone has them) that the number of modded devices is in the tens of thousands or less. So the percentages done axiomatically lead to public uproar.
What I do react to is folks who seem to be saying "the government can't do that" or "poor innocent modder" when yes, under the current law, the government CAN do that, and, in this case, it wasn't a guy just tinkering with his own equipment, but a guy who created a micro-economy for himself in modding for others for the (allegedly) express purpose of defeating legally enforceable protection. Civil disobedience is one thing, but creating an enterprise to knowingly break the law for financial gain is another entirely. As I read the law, if he had been doing it for no gain - free - the case would be much weaker, if not disintegrate altogether. But I am not an attorney.
I want individual consumers to be able to backup and transfer their purchased content within their equipment with impunity, and I want to be able to watch, listen and consume that purchased content ubiquitously on any equipment I chose. DMCA doesn't allow for that so I do want to see it changed. My path (certainly not the only one) is to engage my Congressional representatives...suggest others might want to do the same if you haven't already.
Actually, AC, if you read the comments here on DMCA posts a good deal, you'll note that there are a goodly number of commenters (which means a probably large number of readers) that DON'T seem to understand 1) what DMCA really says on this stuff and 2) that the law is the law until it is changed or struck down.
I understand that many comments are about what SHOULD BE. But many other comments are about what people erroneously think IS TODAY.
Since, of late, Mike does not seem all that interested in providing context to some of his posts, I thought I'd take the liberty. Not because Mike isn't cool or in command, I just thought it was relevant, since it is the piece of the law in question here.
Read section 1201 of the DMCA. It's pretty clear that anything designed to defeat copyright protection mechanisms falls under scrutiny. So, no, dropping your console doesn't qualify and no, adding WiFi doesn't factor in, either. DMCA doesn't even care what a console is...it deals with any device used to playback protected content.
You left out a critical item in your hypothetical: is it - hypothetically - against federal law to modify a car in this way?
Look, I agree that DMCA is overly board, benefits business at the expense of the consumer, and doesn't clearly allow for reasonable things like personal backups. But until it is changed or found in whole or part to be unconstitutional.
Section 1201e(2) of DMCA says "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--
`(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
`(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
`(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title."
So, the WHY for the reason for the circumvention is not important. Circumventing (or providing, importing or manufacturing the means to circumvent) is on its face illegal.
Section 1204(a) says "Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain" is subject to the penalties outlined. The motivation or intent is not a factor in this if he was taking money to do it. So in this case, as I read the law (and I am not an attorney), he is subject to criminal penalties for the circumvention modifications because they was done for commercial purposes (to make money) regardless of whether anyone used them to play pirated content. Which, naturally, I'd venture a guess that a majority of folks who would pursue this type of mod would at some point. Don't flame me for that assertion, I'm open to being proven wrong.
Again, I am not saying the DMCA is RIGHT with a capital R, just that it is the law.
I completely agree that DMCA is the problem here. From the facts presented (and I also read the PDF), it looks like he very likely did violate the law. Note that the charge says he modded for "commercial advantage and private financial gain." I interpret this to mean that they are differentiating his activity from someone who modded their own device, which is a crucial nuance in how they are choosing to enforce this provision.
I agree that these DMCA provisions are over-zealous, put the burden on the consumer and need to be revised. But your comparison to modifying cars is really off-point. Firstly, few cars need to be modded to break the speed limit. Secondly, there ARE limitations (emissions, materials, etc.) on the mods that can be made to a car, some of which DO carry criminal penalties, depending on state law. These limits are typically for environmental or safety reasons, not protecting the manufacturers' rights, I'll grant you.
As for your choice of terms and how you are "struggling to understand how [using the term Student]'s possibly pertinent." I would contend that the fact that he is some kind of student is itself not at all pertinent...student felon, adult felon, both are felons. Wired referred to him as a "man" in the first paragraph, and quoted his age in the second. They, too, chose to use the hook of "student" in their headline, and I assume you just picked that up, then choosing to emphasize it by repeating it twice times in the body of your post. You write a LOT, Mike, and know very well that student carriers commonly held connotations - youth, lack of knowledge, perhaps event innocence via lack of experience. It does look like you (and Wired) selected that term specifically to soften the apparent reality that this guy is a brutish late twenty-something. Yes, it doesn't change his quilt or innocence, just your coloring of it.
Another one of Mike's strategies...when he knows the answer is weak, he'll avoid providing details. The rest of the time, he'll lecture everyone about providing details for their arguments. A shame.
Mike, you know very well (actually we've discussed this before) that the percentage of your readers who actually participate in the forum is likely to be relatively low. Not the 1% of talk radio, but probably far less than 5%. I don't fool myself into thinking that the vast majority of your READERS (not commenters) agree with me, but I'm willing to bet that those disagreeing with you represent something larger than "a very small group." The few of us that speak up from time to time, surely represent a decent percentage of your readership. Come on, Mike. You seem to study group dynamics a great deal...you KNOW that's likely true. And you also know that it is much easier to enter a forum with an affirmative comment than anything controversial, so that further depresses the number of commenting dissenters. Maybe, just maybe your comfortable sense of general agreement isn't because you are so scary right, or your evidence so scary convincing...as you said before, don't be a "fool."
So, are you going to dismiss this substantial group and look only toward those who will validate you? And accusing those of us who disagree with you of being "afraid of what is happening in the world" is about as snarky as you can get. You are not all-knowing, sir. Just one of many relatively knowledgeable (in your chosen datasets, anyway) commentators on business events. No more, no less. Methinks you are so used to being agreed with in your ivory tower than you find it increasingly tiresome to deal with the unwashed who simply don't see things as "clearly" - or have the vested interests - that you do.
On the post: Would The Beggars' Opera Be Possible Today?
You got the department wrong
On the post: Wal-Mart Abusing Trademark Law To Try To Shut Down Union Website
Re:
Yes, yes. Walmart is evil. Predictably, the very first comment posted was a "Walmart is evil" diatribe. And now yours. Nothing to do with Mike's post or point, but always fun to bash big business, I guess.
Let's just all agree to stipulate that Walmart is evil in all ways and, at the same time, a provider of jobs to hundreds of thousands of workers worldwide and a supplier of low cost products to millions of consumers. It's a paradox and we can't solve it here. Okay? Done, then.
On the POINT of the post, I agree with Mike that Walmart is overstepping the intent of trademark protections. My initial read of the language Mike used in describing Walmart's actions ("bully" and "censor and silence organizing workers") led me to believe that he was taking a pro-union slant on this, which would be largely counter to everything Mike says he stands for in business visioning and the separation of moral issues from judgments on business approaches and models. However, I took the time to re-read and I found the Mike's point stuck closely around the issue of trademark over-zealousness and that I was likely reading too much into the union-ish verbiage. Interesting how the mind works.
On the post: New Study States The Obvious: Kids Download A Lot Of Music
Interesting Findign Buried in the Study
"More than half of those surveyed said that companies that manufacture digital music players and mobile phones should pay fees to artists to compensate them from losses due to copies made on their devices."
What they probably don't understand is that any fees paid by equipment manufacturers would 1) come out of their consumer pockets in the form of raised device prices and 2) would only go to artists indirectly via various royalty and industry groups.
But I do find it interesting that a majority of those surveyed know that they are getting content for free which they should be paying for, yet do it anyway.
On the post: Wal-Mart Abusing Trademark Law To Try To Shut Down Union Website
Re: Re: pity
On the post: Why Are RIAA Supporters So Scared Of What Actual Musicians Think?
Re: Re: Re: Re: Re: Re: Two on the money
On the post: Rupert Murdoch vs. Rupert Murdoch On Free vs. Paid News Websites
Rupert the Fool?
1. I agree with Mike (shocker) that having a paywall requires a hook...something that creates value and imperative to get people to pay. WSJ and some other national newspapers probably have that, if done well. Most don't. That's a problem for this approach, definitely.
2. If done thoughtfully, paywalls do not have to be anti-search engine. Exposing enough teaser text and media with proper SEO can do the trick.
3. Despite all the Fox and FoxNews references above, I have seen no mention, even in his competitor sites (like The Guardian) of any intention to paywall any sites other than his newspapers.
4. Note that for all your News Corp-In-Freefall thinkers, News Corp's major divisions are still quite profitable (see: http://www.guardian.co.uk/media/2009/aug/06/rupert-murdoch-website-charges), just not as profitable as they were a year ago. But there are very few businesses that haven't fallen substantially year-over-year, and many that see less than zero net. News Corp is not in a bad position relative to its competitors.
5. I do find is humorous and a bit disappointing how readily even thoughtful people here and elsewhere seem to dismiss Murdoch as a floundering fool, someone who doesn't understand his business, his markets or the complexities of consumer relations. Murdoch - and his team - is a leading multimedia visionary, one of the tops in the last 50 years. He has both lead markets and created new opportunities out of whole cloth where non existed previously. I don't think he has all this figured out yet, but to intimate he has suddenly become blind to the changing ways of markets and to the desires of his consumers is folly. After all, hasn't he been accused relentlessly for 30 years of doing not much more than pandering to what the market wants...the lowest common denominator and such? I say that if any major media outfit is going to figure out the right mix to stay in business at a large scale and give the market want it wants, News Corp is probably it.
On the post: No Freedom To Tinker: Arrested For Modding Legally Purchased Game Consoles
Re: Re: Re: Re: Re: Re: Re: Re: Yeah, but c'mon...
And I do agree that, otherwise, we seem to be in violent agreement.
On the post: Once Again: The Music Industry Does Not Equal The CD Business
Re: Re:
On the post: Once Again: The Music Industry Does Not Equal The CD Business
Re: Also
On the post: No Freedom To Tinker: Arrested For Modding Legally Purchased Game Consoles
Re: Re: Re: Re: Re: Re: Yeah, but c'mon...
BTW, you over and mis-use straw man.
On the post: No Freedom To Tinker: Arrested For Modding Legally Purchased Game Consoles
Re: Re: Re: Re: Re: Re: Yeah, but c'mon...
""Well, someone wrote it on paper and told me I have to do it..." This isn't a chore that mom wrote on the wall for you to do, it's the law. I agree (for the umpteenth time) that DMCA needs to be changed, but until it is, breaking it is at your own peril.
As for the difference between civil disobedience and a criminal enterprise...if you can't see that, I'm at a loss. Again, the profit motive in this case is key, as it is in the DMCA legislation.
"Furthermore, a law that is unjust but only applies to a few is not less unjust" I'm confused because in your earlier post you said that the law would be effectively unenforceable "because doing so would criminalize the majority of the population." So is it a few (hint: the answer is yes) or is it a majority who are impacted? Of course the law protects equally, whether one is affected or 100 million.
And on "I don't mean you, specifically, I mean anyone with that attitude." Okay, fair enough. But you are still completely misreading my "attitude."
On the post: No Freedom To Tinker: Arrested For Modding Legally Purchased Game Consoles
Re: Re: Re: Re: Yeah, but c'mon...
The fact is that the vast majority of people in the US are likely not engaged in activities explicitly criminalized by DMCA. The uproar - rightly so, in my book - is among those who are engaged in lots of electronic content consumption and manipulation. I know that reading TechDirt all the time makes it *seem* like "everyone" is doing the same thing and is outraged, but I don't think the actual numbers from the complete real world prove that out. Of the millions of XBoxes and Wii's sold in the US, I'd bet (and am open to stats if anyone has them) that the number of modded devices is in the tens of thousands or less. So the percentages done axiomatically lead to public uproar.
What I do react to is folks who seem to be saying "the government can't do that" or "poor innocent modder" when yes, under the current law, the government CAN do that, and, in this case, it wasn't a guy just tinkering with his own equipment, but a guy who created a micro-economy for himself in modding for others for the (allegedly) express purpose of defeating legally enforceable protection. Civil disobedience is one thing, but creating an enterprise to knowingly break the law for financial gain is another entirely. As I read the law, if he had been doing it for no gain - free - the case would be much weaker, if not disintegrate altogether. But I am not an attorney.
I want individual consumers to be able to backup and transfer their purchased content within their equipment with impunity, and I want to be able to watch, listen and consume that purchased content ubiquitously on any equipment I chose. DMCA doesn't allow for that so I do want to see it changed. My path (certainly not the only one) is to engage my Congressional representatives...suggest others might want to do the same if you haven't already.
On the post: No Freedom To Tinker: Arrested For Modding Legally Purchased Game Consoles
Re: Re: Re: Re: Yeah, but c'mon...
On the post: No Freedom To Tinker: Arrested For Modding Legally Purchased Game Consoles
Re: Re: Re: Re: Yeah, but c'mon...
I understand that many comments are about what SHOULD BE. But many other comments are about what people erroneously think IS TODAY.
Since, of late, Mike does not seem all that interested in providing context to some of his posts, I thought I'd take the liberty. Not because Mike isn't cool or in command, I just thought it was relevant, since it is the piece of the law in question here.
On the post: No Freedom To Tinker: Arrested For Modding Legally Purchased Game Consoles
Re: What constitutes a mod?
On the post: No Freedom To Tinker: Arrested For Modding Legally Purchased Game Consoles
Re: Something is very strange here
On the post: No Freedom To Tinker: Arrested For Modding Legally Purchased Game Consoles
Re: Re: Yeah, but c'mon...
Look, I agree that DMCA is overly board, benefits business at the expense of the consumer, and doesn't clearly allow for reasonable things like personal backups. But until it is changed or found in whole or part to be unconstitutional.
Section 1201e(2) of DMCA says "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--
`(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
`(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
`(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title."
So, the WHY for the reason for the circumvention is not important. Circumventing (or providing, importing or manufacturing the means to circumvent) is on its face illegal.
Section 1204(a) says "Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain" is subject to the penalties outlined. The motivation or intent is not a factor in this if he was taking money to do it. So in this case, as I read the law (and I am not an attorney), he is subject to criminal penalties for the circumvention modifications because they was done for commercial purposes (to make money) regardless of whether anyone used them to play pirated content. Which, naturally, I'd venture a guess that a majority of folks who would pursue this type of mod would at some point. Don't flame me for that assertion, I'm open to being proven wrong.
Again, I am not saying the DMCA is RIGHT with a capital R, just that it is the law.
On the post: No Freedom To Tinker: Arrested For Modding Legally Purchased Game Consoles
Re: Re: talking head.
I agree that these DMCA provisions are over-zealous, put the burden on the consumer and need to be revised. But your comparison to modifying cars is really off-point. Firstly, few cars need to be modded to break the speed limit. Secondly, there ARE limitations (emissions, materials, etc.) on the mods that can be made to a car, some of which DO carry criminal penalties, depending on state law. These limits are typically for environmental or safety reasons, not protecting the manufacturers' rights, I'll grant you.
As for your choice of terms and how you are "struggling to understand how [using the term Student]'s possibly pertinent." I would contend that the fact that he is some kind of student is itself not at all pertinent...student felon, adult felon, both are felons. Wired referred to him as a "man" in the first paragraph, and quoted his age in the second. They, too, chose to use the hook of "student" in their headline, and I assume you just picked that up, then choosing to emphasize it by repeating it twice times in the body of your post. You write a LOT, Mike, and know very well that student carriers commonly held connotations - youth, lack of knowledge, perhaps event innocence via lack of experience. It does look like you (and Wired) selected that term specifically to soften the apparent reality that this guy is a brutish late twenty-something. Yes, it doesn't change his quilt or innocence, just your coloring of it.
On the post: Amanda Palmer Talks About Connecting With Fans: Fans WANT To Support Artists
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
On the post: Amanda Palmer Talks About Connecting With Fans: Fans WANT To Support Artists
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
So, are you going to dismiss this substantial group and look only toward those who will validate you? And accusing those of us who disagree with you of being "afraid of what is happening in the world" is about as snarky as you can get. You are not all-knowing, sir. Just one of many relatively knowledgeable (in your chosen datasets, anyway) commentators on business events. No more, no less. Methinks you are so used to being agreed with in your ivory tower than you find it increasingly tiresome to deal with the unwashed who simply don't see things as "clearly" - or have the vested interests - that you do.
Very disappointing to this longtime reader.
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