This may be a tough argument to make. This is not about just the constitutionality of the "excessive" damage award by the jury. The Supreme Court has ruled that sometimes excessive award by a jury are unconstitutional. But the court was ruling on instances where the law didn't set a penalty, the damages were entirely up to the jury to decide on.
In this case, Congress has specifically considered and decided on the range of monetary awards in the statute. This is a different thing. The statute limits the available awards (at a rather ridiculously high amount, but still it's a limit) and the jury didn't award the maximum they could have. While this might seem excessive, whether it violates the constitution may be a difficult argument to make.
I gotta agree with the first post. This is potentially a big mistake. Not to say Jammie shouldn't appeal on this issue, but she should recognize that if she loses, any settlement, if one is still offered, is likely to be far higher than if she negotiated a settlement now.
So even though this is a somewhat scholarly effort to look at these issues, apparently Rosen can't even demonstrate his points with music, because copyright forbids it, and requires hefty licensing fees. If ever there were a case where "fair use" should apply, this would seem to be it -- but I'm sure some would argue against that point since this book is a "for-profit" endeavor. Of course, whether something is commercial or not is only one of the four fair use factors, and it seems that if it's just a snippet of the music, a strong fair use case could be made (especially since it's hard to see how this could possibly harm the market for the music itself).
Mike is quite correct here. I'd go further and say that there is a very strong case for fair use. If the author is only using a small part of a song and is directly juxtaposing it with another piece of music for critical analysis, then the commercial nature of the over all book is a minor point.
There is nothing in copyright law that says the author must obtain licenses; copyright law doesn't preclude him from using samples of the music.
Since Rosen is a copyright lawyer, I'd want to ask him why this wouldn't be considered fair use. The linked article doesn't explore that, just presents Rosen's statements that he'd have to get licenses. He also includes a rather puzzling statement:
"If, however, the current edition is highly successful, we may be able to get licenses for the second edition in exchange for crediting the record companies for the use of these extracts, if the composition is in the public domain."
A rather curious position for a copyright attorney to take (and I suspect there is more to the story). If the composition is in the public domain, there is no need to get a license, or even to credit the record companies (though that would be the professional thing to do).
Perhaps a better title to this post would be "Record Labels Shift Standard Marketing Focus". Most of what the linked article discusses, and acknowledges, is that the record companies have been simply shifting focus of standard marketing efforts from point-of-sale promotional materials to consumer freebies, which have been part of the marketing mix for many years but had fallen out of favor in the age of CDs.
But the real innovation the article discusses is this:
Indeed, on the last day of mixing Romanian Names, he and producer Scott Solter spent hours poring over every second of music one last time. They made massive cuts, snipping away anything that sounded superfluous—entire verses, introductions, solos. When they'd finished, he crammed the tape into a trash bag and put it in a closet at home. He knew those minced moments couldn't just sit there, though.
"I was like, 'This isn't an outtake. These are actually pieces that almost made it onto the album,'" says Vanderslice from a tour van headed to Milwaukee. "The next couple of days, I started thinking about them, that we should cut them into pieces and give them to people and let them own the rights to the pieces of these songs."
Not only did they give away pieces of production tapes that did not make it on the final album, they also gave away the rights to the music on those pieces of tape.
And while they didn't explicitly tie the promotion to purchase of the album, they did have a surge of about 4 times as many preorder sales (500 total).
The other consumer-oriented promotional extras are not really a new concept, but the tape-plus-rights give-away is the real innovative thinking.
No. Never "should". Not sure why you falsely insist on that. Should is the moral pronouncement. My argument is always that it would likely be *better* for the creator if it were free, because it would help their overall business model.
But it's not "should".
I don't know where you got the idea that "should" is a moral pronouncement. I can be a moral pronouncement, depending on the context, but more often it's not. It's more frequently used to express logical or probably consequence. You can insist that it only means "moral pronouncement" but you'd be wrong.
But I note that, once again, you are addressing use of language rather than the point that this author is using the same old business model for bookselling that been done for decades, just with some fancy marketing; cross-promotion using games and web site has been around for quite a while. If you think this is new, you haven't been paying attention.
It may not have mattered if jurors were previously aware of file sharing or that copying is what computers "do" or the difference between file sharing and stealing.
Thomas-Rasset wasn't on trial for stealing. She was on trial for copyright infringement. While the defense tried to introduce as many other issues (were the copyrights valid, etc.), did downloading of copyrighted songs occur and did Thomas-Rasset do it? The jury thought there was sufficient evidence that copying happened and Thomas-Rasset did it. It's not really a matter of dispute that it's illegal. Or at least that wasn't disputed at trial.
The UNITED STATES FUCKING CONSTITUTION you asshole.
Yes, well, that clause in the constitution gave Congress the power to set the limits on copyright, which it has. Constitutionally. If you think the limits are wrong, ask Congress to change it.
GOD DAMN I am sick of industry apologists who are willing to sell our rights, culture, and the constitution right down the river
No one has sold the constitution or your rights down the river (see above).
And copyright doesn't sell your culture down the river. Does it become "your culture" only when works enter the public domain? The works of John Coltrane, Muddy Waters, Leonard Bernstein are solidly part of our culture. Catcher in the Rye is iconic in our culture. The Godfather and Star Wars are part of our culture. Even the famed Mickey Mouse is our culture. All under copyright. All part of our culture.
This isn't the definition of stealing.... There is no property, despite the oft coined "intellectual property" So, you still have your copy, which you do own. I never took your property. Hence, no stealing. This is not up for debate. At all. So stop, already.
Joe, I've argued these points elsewhere, and don't feel the need to go into them again. You miss the point. If Mike can broadly use the term "stealing" where works are "taken" from the public domain, then it's fair to broadly use the term when applied to such things as file sharing. I understand the technical, narrow definitions that are popular here: no one sharing music want to be thought of as stealing. Fine.
But if there is no such thing as intellectual property, then it really can't be stealing when copyright is extended, as it has numerous times over the years. If there is not property, then how can the public have a "right" to created content?
Would it be stealing from content creators if Congress decided tomorrow to shorten copyright to 5 years? And made it retroactive?
It's not about having access...it's about having *complete* access. Most notably, the ability to take a work and build upon it. ... Also, "some narrow limits" is the biggest load of bullshit I've ever heard. Tell me how I'm *not* limited.
There are lots of limits in life, Joe. That you don't have "complete" access to what other people create isn't a crime.
And how are you not limited? Well, you're perfectly free to use the ideas in protected content (though not the specific copyrighted expression of those ideas); you can also appropriate more of the specific expression to satirize, parody, or comment. Or maybe you can come up with your own ideas and create something with them.
(not to mention the many books/movies/tv shows/songs that are no longer being produced that I *don't* have access to because of copyrights)
Here, I agree completely. It's a definite problem, and orphaned works is one area where it may be most possible to get Congress to act as there is a large constituency including libraries, publishers, authors, etc. that would like to see this material freed. There are differing opinions on how this might be done, but this is an area that is a very solvable problem.
In all, your twisting of words and doublespeak is very disturbing. The rules were clear: Creaters get a **LIMITED** monopoly over who can and can't use their works. The limit keeps getting extended by lobbying from the people who *directly* benefit from it, with complete disreguard to the effect it has on future creators.
I don't think I've twisted words, so don't be disturbed, Joe. This isn't life-or-death. It's a discussion. That I might disagree when some words are misused or ill-defined shouldn't be cause for alarm. Challenging orthodoxy (whether the orthodoxy of those for copyright or the orthodoxy of those opposed to copyright) is healthy.
According to our constitution and republican form of government, members of congress represent the people of their state or district. That politicians can be corrupt isn't really modern news, but it doesn't change those basic facts.
If you can't get Congress to change copyright there are really only two options: get everyone else to ignore copyright or overthrow the government so you can get free tunes.
To be fair, Mike, you aren't always so nuanced. Many of your posts clearly imply that because it will be free it should be free now.
If you can figure out a way to charge -- such as by bundling it with all sorts of scarcities -- then that's great. That's the point....That's exactly what he did here.
But this author hasn't "figured out a way to charge" since there was nothing to figure out; it's the same old business model (sell a book) with some innovative marketing. That's just basic economics.
This instance would fit with your new paradigm if the book were digitally available for free, which it's not, and the scarce, non-digitally reproducible extras in the physical book promoted sales of the physical product. At the moment, that's not the case.
Thanks. I appreciate the response. But, as I'm sure will not surprise you, I have some objections.
Regulatory capture + copyright extension...
Regulatory capture is a slight stretch, since it's been congress that's in charge of setting copyright law. More on that and copyright extension below.
Sure, a bargain can be modified, but not without the approval of both sides. That's not what's happened here.
Actually, that's exactly what's happened here. Copyright term has been extended by Congress, who are the people's representatives under our republican form of government. While it's true that Congress has been influenced by corporate interest groups, that's really not regulatory capture, but plain old politics. And the answer is for others to influence Congress to revise (or repeal, though that's never going to happen in any foreseeable future) copyright more in favor of the public domain. I would certainly support such reform, as I've said before, by expanding and more concretely defining a right of fair use as well as shrinking the term of copyright, though I know we disagree on this or on what a proper term should be.
File sharing is copying something, such that the original holder still has everything they had before. Taking content that was promised to the public domain out of the public domain is stealing. The public had a right to certain works on a certain date and then it was gone.
[What culture were "people" promised? Who promised it?]
At the time the content was created, a bargain was struck. Copyright law made that bargain explicit. That's the promise: this content will be available to anyone on such and such a date.
If you want to use stealing in this broad sense, then file sharing in the broad sense (rather than the narrow, rather technical sense in which you use it) is stealing: obtaining something to which you have no right, and for which payment would be due absent acquisition by illegal means. I know we'll never agree on that.
But that aside, the culture still has access to copyrighted works, so copyright doesn't take that away. It does, however place some narrow limits on how you can use that content/culture.
If copyright extension "stole" content from the public by changing the "bargain" between content creator and the public about the date when content would become "free", that wouldn't apply to a lot of currently protected content. For example, works created after 1976 still wouldn't be in the public domain, even if the author died that year. None of those works would be public domain until 2026 at the earliest. That was the bargain. Of course, the Sonny Bono act will have "stolen" 20 years from the pubic stating at least as early as 2026 for content created between 1976 and 1998. Call me in 17 years, and I'll storm the barricades with you.
If an RIAA loss didn't either, then it would also just be due to the specifics of that case. However, if the RIAA lost a case where a judge ruled, say, that it's theory that non-commercial copying is infringement is not true, then that could be a repudiation.
I'm glad to see you write that. We'll see if either situation ever comes to pass. (Though I doubt the latter will happen; commercial or non-commercial use is only one factor in fair use and all the other parts of the fair use test have to be considered.)
Then, through the Berne Convention, those international laws were forced upon the US in violation of the US constitution through a treaty.
Actually, Article VI of the Constitution says that treaties are essentially the equivalent to the Constitution, so the terms of a treaty, properly ratified, is constitutional (unless you can convince the Supreme Court that one of the treaty terms violates another part of the Constitution).
Yes, Mike, please do expound on this (and perhaps lose some of the seething anger).
How, exactly, has the "RIAA and its supporters" taken content out of the public domain?
Can a "bargain" once struck never be modified? And if so, then how can copyright be modified in favor of conusmers?
How is this "stealing" when you vociferously maintain that file sharing isn't?
What culture were "people" promised? Who promised it?
And what "individual freedoms" are you talking about? If people can't freely copy music regardless of copyright, is that the same as slavery?
As for misrepresentation, I take it that it's your position that the Thomas-Rasset case represents only a very narrow victory against a specific person in very specific circumstances and shouldn't be see as having any wider impact. If the record labels were to lose one of these cases, would it also be a very narrow victory in very specific circumstances, or would it be a sweeping repudiation of the RIAA's litigation campaign and the music industry in general?
I applaud your talent, Mike. You're able to punt and move the goalposts at the same time (while throwing in a gratuitous personal barb). Impressive.
But, to the matter at hand:
"When we talk about the various business models and economics surrounding "infinite goods" people always want to insist that there's some area where there are no scarcities or are no ancillary goods that can be sold. One example that's commonly cited is novels."
The whole theme of your writing here has been that digital goods are infinite and should be "free" as their marginal cost is near zero, and other scarcities related to those digital goods should be utilized to effectively monetize the infinite good. In this post you trumpet a clever marketing scheme in support of your economic model.
But, in this case, there isn't an infinite good being offered at its marginal cost. There's no "free". Therefore it really doesn't support your model.
In other words, absent that infinite good, this is just a book being sold on the old business model with good marketing. Without the free, "giving a reason to buy" is just plain old marketing.
Now, I can probably already write exactly what the critics will say in the comments here: that (1) this seems like a ton of extra work and what if the author just wants to write and (2) this only works this one time, with this one author, in this particular genre.
Nope.
This is a great example of an author coming up with a ton of extra interactive content that go far beyond the basic nature of the book (not that most of this hasn't been done before, but this is, I think, a innovative approach).
But....where's the "free"? Yes, he's giving readers a "reason to buy" but what's to say they wouldn't have bought the book anyway. This author has typically allowed audio downloads of his work, but I don't see any other type of download. This particular project, however, has no "free" component: its for sale even electronically. I've not seen anything that indicates that they want this to be pirated.
Still, this is pretty innovative. And while this lends itself more to genre (SF, fantasy, thriller, etc.) than more mainstream fiction, there are definitely some lessons to be cleaned from this example.
So, Amanda made absolutely nothing from 30,000 record sales? Well, if you look closely at the quoted text in several places she says "made...this year". From this I would have to hazard a guess that she received no royalty payments from Warner either in the past 12 months or since January (since she doesn't specify what "this year" means).
Is she including the advance against royalties that typically form the initial payment? It's quite possible (leaving out normal record company accounting shenanigans) that even at the gross level of her royalty rate, that 30,000 copies hasn't earned out in royalties the initial payment. If that's so, she's already been paid, in advance, for those sales.
Now, I certainly admire and applaud her creativity thinking up things to sell (or, as Mike puts it "giving fans a reason to buy"), but a lot of this doesn't seem really sustainable and the $19,000 "total" doesn't account for any other costs.
$11,000 selling t-shirts (less the cost of the shirts, printing, shipping, and time/labor of her assistant to do all of that). Likely that the net here is no greater than 60% and probably less. So lets call that $6,000. Plus, this seems to be a one-off, which may be repeatable but only time will tell.
$6,000 selling random stuff from her apartment (less shipping and time/labor of two assistants). She'll have to get a lot more stuff to auction if this is to be sustainable. Let's be generous and knock off only $500 for labor and shipping. That's $5,500.
$2,000 from donation-only concert. This is the only one she reports a "net" on (payment for studio time). And the only one that is likely to be sustainable.
These experiments are great and it's great that the artists are making money. But let's not overhype the math.
Re: Re: Re: Re: Re: Re: Re: Re: Shakespeare would have been fine
First, as far as I know, the RIAA hasn't accused anyone of "criminal infringement." So far these have all been civil cases of infringement.
Second, RIAA has, despite clever rhetoric to the opposite, not "sued everyone". Yes, they've started a lot of lawsuits that at the start had evidence only that infringement had occurred and linked it to an IP address and a name of the owner/user of that IP address. Unfortunately, that is sufficient to begin the pre-trial process of discovery, which is why most people settle. Some may settle due to the prospect of the cost of defense, but I'm guessing that many more people settle because if they're honest with themselves, they know they did the infringing and that it will come out at trial.
The ones where the RIAA has "backed off," as far as I can tell, are where there is insufficient evidence that the particular person charged did the infringement or where someone else was found to have done it on the suspected computer/internet account. Which, of course, is what they are supposed to do and what the court would force them to do.
Actually, while I agree that Thomas-Rasset most likely destroyed evidence by installing a new hard-drive, there was no direct evidence of that presented in court (though the impression was there).
I agree that $80,000 per song is wrong, but that's what you get when you leave your fate to a jury. It's less than they could have awarded.
And then we get back to the point I was originally trying to make: With all these threats and the possibility to be sued into nonexistence, I could most definitely see people not making something just out of fear of accusation.
Fortunately, most content creators don't think this way. Music is still being made, recorded, and distributed (as Mike indicated in a post a few days ago, apparently more music than ever). Thousands of books are published every year (and hundreds of thousands more written but not likely to be published, at least not commercially). Movies are still made, etc.
Copyright really isn't all that difficult and with minimal care, a content creator will be just fine. If there is a possibility that material might give rise to a copyright infringement claim, it's not all that hard to have it reviewed. I understand that many here think that shouldn't be necessary, but, still, it's not all that hard.
Re: Re: Re: Re: Re: Re: Shakespeare would have been fine
Of course not. There are many companies that try to use the law to their advantage against competition, sometimes with little basis. But that doesn't mean that all such suits or even the majority of such suits don't have merit (regardless of whether they are ultimately successful).
Are you saying that none of the file sharers discovered by the RIAA are not guilty of the illegal conduct they're accused of? I would certainly agree that the RIAA's legal approach is ill-advised, but they're well within their rights and it's highly likely that most of the folks they target did break the law.
On the post: Jammie Thomas Decides To Appeal Constitutionality Of $1.92 Million Damages Award
Re: if shes attacking the constiutionality...
In this case, Congress has specifically considered and decided on the range of monetary awards in the statute. This is a different thing. The statute limits the available awards (at a rather ridiculously high amount, but still it's a limit) and the jury didn't award the maximum they could have. While this might seem excessive, whether it violates the constitution may be a difficult argument to make.
I gotta agree with the first post. This is potentially a big mistake. Not to say Jammie shouldn't appeal on this issue, but she should recognize that if she loses, any settlement, if one is still offered, is likely to be far higher than if she negotiated a settlement now.
On the post: Copyright Insanity: The Need To Get Licenses Just To Demonstrate A Legal Point
Fair Use.
Mike is quite correct here. I'd go further and say that there is a very strong case for fair use. If the author is only using a small part of a song and is directly juxtaposing it with another piece of music for critical analysis, then the commercial nature of the over all book is a minor point.
There is nothing in copyright law that says the author must obtain licenses; copyright law doesn't preclude him from using samples of the music.
Since Rosen is a copyright lawyer, I'd want to ask him why this wouldn't be considered fair use. The linked article doesn't explore that, just presents Rosen's statements that he'd have to get licenses. He also includes a rather puzzling statement:
A rather curious position for a copyright attorney to take (and I suspect there is more to the story). If the composition is in the public domain, there is no need to get a license, or even to credit the record companies (though that would be the professional thing to do).
Too bad Kelman didn't follow up on this part.
On the post: Could The RIAA Stop Piracy By Coming Up With A More Compelling Story?
Re: Re: Reasons to Buy
On the post: Could The RIAA Stop Piracy By Coming Up With A More Compelling Story?
Reasons to Buy
How is this any different than the oft suggested "give consumers a reason to buy"?
On the post: More And More Bands (And Their Labels) Giving Fans A Reason To Buy
Missing the Innovation?
But the real innovation the article discusses is this:
Not only did they give away pieces of production tapes that did not make it on the final album, they also gave away the rights to the music on those pieces of tape.
And while they didn't explicitly tie the promotion to purchase of the album, they did have a surge of about 4 times as many preorder sales (500 total).
The other consumer-oriented promotional extras are not really a new concept, but the tape-plus-rights give-away is the real innovative thinking.
On the post: Buy The Novel, Get A Lot More -- Including True Reasons To Buy
Re: Re: Re: Re: Re: Re: Where's the "Free"?
But it's not "should".
I don't know where you got the idea that "should" is a moral pronouncement. I can be a moral pronouncement, depending on the context, but more often it's not. It's more frequently used to express logical or probably consequence. You can insist that it only means "moral pronouncement" but you'd be wrong.
But I note that, once again, you are addressing use of language rather than the point that this author is using the same old business model for bookselling that been done for decades, just with some fancy marketing; cross-promotion using games and web site has been around for quite a while. If you think this is new, you haven't been paying attention.
On the post: RIAA Claims Jammie Thomas Jury Is A Representative Sample Of Views On File Sharing
Re: Jury selection process
Thomas-Rasset wasn't on trial for stealing. She was on trial for copyright infringement. While the defense tried to introduce as many other issues (were the copyrights valid, etc.), did downloading of copyrighted songs occur and did Thomas-Rasset do it? The jury thought there was sufficient evidence that copying happened and Thomas-Rasset did it. It's not really a matter of dispute that it's illegal. Or at least that wasn't disputed at trial.
On the post: RIAA Claims Jammie Thomas Jury Is A Representative Sample Of Views On File Sharing
Re: FU
Yes, well, that clause in the constitution gave Congress the power to set the limits on copyright, which it has. Constitutionally. If you think the limits are wrong, ask Congress to change it.
GOD DAMN I am sick of industry apologists who are willing to sell our rights, culture, and the constitution right down the river
No one has sold the constitution or your rights down the river (see above).
And copyright doesn't sell your culture down the river. Does it become "your culture" only when works enter the public domain? The works of John Coltrane, Muddy Waters, Leonard Bernstein are solidly part of our culture. Catcher in the Rye is iconic in our culture. The Godfather and Star Wars are part of our culture. Even the famed Mickey Mouse is our culture. All under copyright. All part of our culture.
On the post: RIAA Claims Jammie Thomas Jury Is A Representative Sample Of Views On File Sharing
Re: Re: Re: Re: Re: Huh?
Joe, I've argued these points elsewhere, and don't feel the need to go into them again. You miss the point. If Mike can broadly use the term "stealing" where works are "taken" from the public domain, then it's fair to broadly use the term when applied to such things as file sharing. I understand the technical, narrow definitions that are popular here: no one sharing music want to be thought of as stealing. Fine.
But if there is no such thing as intellectual property, then it really can't be stealing when copyright is extended, as it has numerous times over the years. If there is not property, then how can the public have a "right" to created content?
Would it be stealing from content creators if Congress decided tomorrow to shorten copyright to 5 years? And made it retroactive?
It's not about having access...it's about having *complete* access. Most notably, the ability to take a work and build upon it. ... Also, "some narrow limits" is the biggest load of bullshit I've ever heard. Tell me how I'm *not* limited.
There are lots of limits in life, Joe. That you don't have "complete" access to what other people create isn't a crime.
And how are you not limited? Well, you're perfectly free to use the ideas in protected content (though not the specific copyrighted expression of those ideas); you can also appropriate more of the specific expression to satirize, parody, or comment. Or maybe you can come up with your own ideas and create something with them.
(not to mention the many books/movies/tv shows/songs that are no longer being produced that I *don't* have access to because of copyrights)
Here, I agree completely. It's a definite problem, and orphaned works is one area where it may be most possible to get Congress to act as there is a large constituency including libraries, publishers, authors, etc. that would like to see this material freed. There are differing opinions on how this might be done, but this is an area that is a very solvable problem.
In all, your twisting of words and doublespeak is very disturbing. The rules were clear: Creaters get a **LIMITED** monopoly over who can and can't use their works. The limit keeps getting extended by lobbying from the people who *directly* benefit from it, with complete disreguard to the effect it has on future creators.
I don't think I've twisted words, so don't be disturbed, Joe. This isn't life-or-death. It's a discussion. That I might disagree when some words are misused or ill-defined shouldn't be cause for alarm. Challenging orthodoxy (whether the orthodoxy of those for copyright or the orthodoxy of those opposed to copyright) is healthy.
On the post: RIAA Claims Jammie Thomas Jury Is A Representative Sample Of Views On File Sharing
Re: Re: Re: Re: Re: Huh?
If you can't get Congress to change copyright there are really only two options: get everyone else to ignore copyright or overthrow the government so you can get free tunes.
Good luck.
On the post: Buy The Novel, Get A Lot More -- Including True Reasons To Buy
Re: Re: Re: Re: Where's the "Free"?
If you can figure out a way to charge -- such as by bundling it with all sorts of scarcities -- then that's great. That's the point....That's exactly what he did here.
But this author hasn't "figured out a way to charge" since there was nothing to figure out; it's the same old business model (sell a book) with some innovative marketing. That's just basic economics.
This instance would fit with your new paradigm if the book were digitally available for free, which it's not, and the scarce, non-digitally reproducible extras in the physical book promoted sales of the physical product. At the moment, that's not the case.
On the post: RIAA Claims Jammie Thomas Jury Is A Representative Sample Of Views On File Sharing
Re: Re: Re: Huh?
Regulatory capture + copyright extension...
Regulatory capture is a slight stretch, since it's been congress that's in charge of setting copyright law. More on that and copyright extension below.
Sure, a bargain can be modified, but not without the approval of both sides. That's not what's happened here.
Actually, that's exactly what's happened here. Copyright term has been extended by Congress, who are the people's representatives under our republican form of government. While it's true that Congress has been influenced by corporate interest groups, that's really not regulatory capture, but plain old politics. And the answer is for others to influence Congress to revise (or repeal, though that's never going to happen in any foreseeable future) copyright more in favor of the public domain. I would certainly support such reform, as I've said before, by expanding and more concretely defining a right of fair use as well as shrinking the term of copyright, though I know we disagree on this or on what a proper term should be.
File sharing is copying something, such that the original holder still has everything they had before. Taking content that was promised to the public domain out of the public domain is stealing. The public had a right to certain works on a certain date and then it was gone.
[What culture were "people" promised? Who promised it?]
At the time the content was created, a bargain was struck. Copyright law made that bargain explicit. That's the promise: this content will be available to anyone on such and such a date.
If you want to use stealing in this broad sense, then file sharing in the broad sense (rather than the narrow, rather technical sense in which you use it) is stealing: obtaining something to which you have no right, and for which payment would be due absent acquisition by illegal means. I know we'll never agree on that.
But that aside, the culture still has access to copyrighted works, so copyright doesn't take that away. It does, however place some narrow limits on how you can use that content/culture.
If copyright extension "stole" content from the public by changing the "bargain" between content creator and the public about the date when content would become "free", that wouldn't apply to a lot of currently protected content. For example, works created after 1976 still wouldn't be in the public domain, even if the author died that year. None of those works would be public domain until 2026 at the earliest. That was the bargain. Of course, the Sonny Bono act will have "stolen" 20 years from the pubic stating at least as early as 2026 for content created between 1976 and 1998. Call me in 17 years, and I'll storm the barricades with you.
If an RIAA loss didn't either, then it would also just be due to the specifics of that case. However, if the RIAA lost a case where a judge ruled, say, that it's theory that non-commercial copying is infringement is not true, then that could be a repudiation.
I'm glad to see you write that. We'll see if either situation ever comes to pass. (Though I doubt the latter will happen; commercial or non-commercial use is only one factor in fair use and all the other parts of the fair use test have to be considered.)
On the post: RIAA Claims Jammie Thomas Jury Is A Representative Sample Of Views On File Sharing
Re: Re: Re: Re: Huh?
Actually, Article VI of the Constitution says that treaties are essentially the equivalent to the Constitution, so the terms of a treaty, properly ratified, is constitutional (unless you can convince the Supreme Court that one of the treaty terms violates another part of the Constitution).
On the post: RIAA Claims Jammie Thomas Jury Is A Representative Sample Of Views On File Sharing
Re: Huh?
How, exactly, has the "RIAA and its supporters" taken content out of the public domain?
Can a "bargain" once struck never be modified? And if so, then how can copyright be modified in favor of conusmers?
How is this "stealing" when you vociferously maintain that file sharing isn't?
What culture were "people" promised? Who promised it?
And what "individual freedoms" are you talking about? If people can't freely copy music regardless of copyright, is that the same as slavery?
As for misrepresentation, I take it that it's your position that the Thomas-Rasset case represents only a very narrow victory against a specific person in very specific circumstances and shouldn't be see as having any wider impact. If the record labels were to lose one of these cases, would it also be a very narrow victory in very specific circumstances, or would it be a sweeping repudiation of the RIAA's litigation campaign and the music industry in general?
Just curious.
On the post: Buy The Novel, Get A Lot More -- Including True Reasons To Buy
Re: Re: Where's the "Free"?
But, to the matter at hand:
"When we talk about the various business models and economics surrounding "infinite goods" people always want to insist that there's some area where there are no scarcities or are no ancillary goods that can be sold. One example that's commonly cited is novels."
The whole theme of your writing here has been that digital goods are infinite and should be "free" as their marginal cost is near zero, and other scarcities related to those digital goods should be utilized to effectively monetize the infinite good. In this post you trumpet a clever marketing scheme in support of your economic model.
But, in this case, there isn't an infinite good being offered at its marginal cost. There's no "free". Therefore it really doesn't support your model.
In other words, absent that infinite good, this is just a book being sold on the old business model with good marketing. Without the free, "giving a reason to buy" is just plain old marketing.
On the post: Buy The Novel, Get A Lot More -- Including True Reasons To Buy
Where's the "Free"?
Nope.
This is a great example of an author coming up with a ton of extra interactive content that go far beyond the basic nature of the book (not that most of this hasn't been done before, but this is, I think, a innovative approach).
But....where's the "free"? Yes, he's giving readers a "reason to buy" but what's to say they wouldn't have bought the book anyway. This author has typically allowed audio downloads of his work, but I don't see any other type of download. This particular project, however, has no "free" component: its for sale even electronically. I've not seen anything that indicates that they want this to be pirated.
Still, this is pretty innovative. And while this lends itself more to genre (SF, fantasy, thriller, etc.) than more mainstream fiction, there are definitely some lessons to be cleaned from this example.
On the post: Amanda Palmer Connects With Fans, Gives 'Em A Reason To Buy... And Makes $19k In 10 Hours
Re: Nay sayers
On the post: Amanda Palmer Connects With Fans, Gives 'Em A Reason To Buy... And Makes $19k In 10 Hours
More Math
Is she including the advance against royalties that typically form the initial payment? It's quite possible (leaving out normal record company accounting shenanigans) that even at the gross level of her royalty rate, that 30,000 copies hasn't earned out in royalties the initial payment. If that's so, she's already been paid, in advance, for those sales.
Now, I certainly admire and applaud her creativity thinking up things to sell (or, as Mike puts it "giving fans a reason to buy"), but a lot of this doesn't seem really sustainable and the $19,000 "total" doesn't account for any other costs.
$11,000 selling t-shirts (less the cost of the shirts, printing, shipping, and time/labor of her assistant to do all of that). Likely that the net here is no greater than 60% and probably less. So lets call that $6,000. Plus, this seems to be a one-off, which may be repeatable but only time will tell.
$6,000 selling random stuff from her apartment (less shipping and time/labor of two assistants). She'll have to get a lot more stuff to auction if this is to be sustainable. Let's be generous and knock off only $500 for labor and shipping. That's $5,500.
$2,000 from donation-only concert. This is the only one she reports a "net" on (payment for studio time). And the only one that is likely to be sustainable.
These experiments are great and it's great that the artists are making money. But let's not overhype the math.
On the post: Would King Lear Ever Have Been Written If Copyright Law Existed?
Re: Re: Re: Re: Re: Re: Re: Re: Shakespeare would have been fine
Second, RIAA has, despite clever rhetoric to the opposite, not "sued everyone". Yes, they've started a lot of lawsuits that at the start had evidence only that infringement had occurred and linked it to an IP address and a name of the owner/user of that IP address. Unfortunately, that is sufficient to begin the pre-trial process of discovery, which is why most people settle. Some may settle due to the prospect of the cost of defense, but I'm guessing that many more people settle because if they're honest with themselves, they know they did the infringing and that it will come out at trial.
The ones where the RIAA has "backed off," as far as I can tell, are where there is insufficient evidence that the particular person charged did the infringement or where someone else was found to have done it on the suspected computer/internet account. Which, of course, is what they are supposed to do and what the court would force them to do.
Actually, while I agree that Thomas-Rasset most likely destroyed evidence by installing a new hard-drive, there was no direct evidence of that presented in court (though the impression was there).
I agree that $80,000 per song is wrong, but that's what you get when you leave your fate to a jury. It's less than they could have awarded.
And then we get back to the point I was originally trying to make: With all these threats and the possibility to be sued into nonexistence, I could most definitely see people not making something just out of fear of accusation.
Fortunately, most content creators don't think this way. Music is still being made, recorded, and distributed (as Mike indicated in a post a few days ago, apparently more music than ever). Thousands of books are published every year (and hundreds of thousands more written but not likely to be published, at least not commercially). Movies are still made, etc.
Copyright really isn't all that difficult and with minimal care, a content creator will be just fine. If there is a possibility that material might give rise to a copyright infringement claim, it's not all that hard to have it reviewed. I understand that many here think that shouldn't be necessary, but, still, it's not all that hard.
On the post: Would King Lear Ever Have Been Written If Copyright Law Existed?
Re: Re: Re: Re: Re: Re: Shakespeare would have been fine
Are you saying that none of the file sharers discovered by the RIAA are not guilty of the illegal conduct they're accused of? I would certainly agree that the RIAA's legal approach is ill-advised, but they're well within their rights and it's highly likely that most of the folks they target did break the law.
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