How are 54 attacks supposed to justify universal surveillance?
This is what I don't understand. Even if we took the NSA at their word and they *have* prevented 54 full-blown attacks, that number is WAY too small to justify both the money spent on them and the massive infringement of civil rights.
Let's assume the worst and say that each attack averages 100 deaths (my guess is this is a very high number, but I'm too lazy to look up figures right now). That means the total effect of the NSA's programs is the prevention of 5,400 deaths.
That's not nothing, but it's not very impressive either. The NSA's budget is in the $10s of billions. Their sole mandate is to stop terrorism. If I'm counting correctly, they are spending more than $1 million to prevent each death. And that doesn't take into account the social cost of massively violating people's civil liberties.
We could spend the same amount on preventing road accidents and get a MASSIVELY better return on investment (in terms of lives saved).
We could spend the same amount on dealing the the social causes of drug and alcohol abuse and get a MASSIVELY better return on investment.
Neither of these options require surveillance or any kind of compromise of the Constituion.
So, someon tell me, why are we arguing over how many attacks were actually prevented when even the best case scenario (from the NSA's perspective) shows that the money is grossly misspent?
As upsetting as this is, I think it's highly likely that Fox *does* own the copyright in question. Anyone with access to set would have signed a deal memo assigning all copyright for anything related to the set to the production company. That's routine, and it's in every deal memo I've signed for any TV show.
More than likely, the photos didn't just come from random crew members, but from the official stills photographer, who would also have an explicit contract assigning copyright to the production company (Fox). This is true with or without work for hire concepts; the copyright assignment is a standard part of the employment contract.
So, it's incorrect for Mike to call this bogus or copyfraud. They are not claiming copyright over the set itself; they are claiming copyright on the photos which would have been assigned to them by contract as a routine part of producing the series.
There's no question in my mind that this *should* be fair use, and in an ideal world the lawsuit would be frivolous. However, we don't live in that world, and I have no doubt that the law in this case will favour Fox.
"Perhaps she is contractually obligated to pursue copyright violations. If I were say Netflicks, I'd like her to reduce the other supplies of the videos."
Bingo. This is the real reason why it's worth spending $30K on anti-piracy efforts. It has nothing to do with whether or not anti-piracy is actually effective at raising sales. It's all about protecting relationships and being seen as a trustworthy distributor.
The film distribution is built on favours and horse trading, and it's all regional. Distribution rights are divvied up into exclusive sections, and distributors specialize in specific areas where they have rights to distribute.
Piracy doesn't care about exclusive contracts. Once it's available online, it's available everywhere, and the formerly exclusive agreements don't mean squat. Now, granted, you can't stop piracy, but as a distributor, you don't want to be seen as the one who let the horse out of the barn. So you do as much as you can to be seen visibly fighting piracy, whether or not it's effective.
Kathy isn't spending money to protect sales. She's spending money to protect relationships. I believe Tim 100% that the $30K does nothing to boost sales directly. But, he's missing what that $30K is actually buying: Credibility that will give her access to a wider variety of more lucrative film s to distribute.
If you *really* want to hear some details about the reforms I'd like to see, I suggest you petition Mike Masnick to guest-feature it as a full article or series of articles. It will take me several hours/days to write it all out in a way that makes sense to ordinary people, because there's a lot of theoretical framework that is needed to make sense of it. Case in point: It took me two LONG posts and >5 hours to fully explain my point about publication being a gift from the artist to society.
I'm glad you like my ideas, and I'd love my ideas to spread, but the time investment on my part is not insignificant, and it's balanced against a life that is already very busy. A wider audience might flatter me enough to undertake a more serious exploration.
You can ask. And, sometime when I have a few hours to kill, I'll make an attempt at it. But, that's a big topic ... one that is probably more deserving of it's own thread.
Thanks James, you wrote me a worthy reply, and I will try to respond in kind to the best of my ability at 3AM. I hope you will read this, but if you are done with this thread, I hope others will benefit.
First, a clarification. I am not an abolitionist. I am a radical reformer, and the copyright I envision doesn't resemble anything suggested so far on this thread. My post was not intended to be a defence of abolition, though I realize that was the topic of your original post. My concern was simply to point out that neither the bargain nor the balance theory are adequate justifications for copyright. I believe such a justification exists. For me, the central concern of copyright is preserving attribution and preventing fraud. Perhaps I will share those ideas at some point, but not tonight.
To address your specific points.
"Well I think this is a false dilemma. Remember that the public domain grows with the number of works created. This is a simple mathematical fact. Would you agree that incentives by definition encourage people to do or abstain from doing things?"
Yes, it is a false dilemma. I posed it because I wanted to reveal the underlying assumption, which I'll simply re-quote: "In order for this bargain to work, you need another assumption: The rate of creation will be higher when monopoly rights are granted."
The real question here is not whether incentives encourage or discourage action, but whether or not copyright is actually an incentive to create. I granted this for the sake of argument, but I also presented a lengthy argument (which I think you agreed with) that copyright is an incentive to publish, not to create.
Moving on.
"You're strawmaning it a little here. I never claimed that simply creating a piece of artwork is enough that someone should get paid for it."
I have no quarrel here. Yes, I set up a false argument. I didn't mean to imply that you advocated it; I was simply using it to illustrate the point that you eventually agreed with: "In order to both get paid and add to culture, the work must be disseminated." Most people stop at creation and never get to dissemination; my argument is clearer if I explicitly destroy the straw man.
Still moving on.
"Ok. The way I see it, all you've done is add one link to the chain of reason. if publishing, not creation is the goal of copyright, then copyright incentivises publishing, not creation. I don't necessarily agree with you, but even if you're right, the reasoning for copyright law remains the same, only the terms have changed ("creation" is now "publication")."
Ok, here I need to do some work. I neglected to present the crux of my argument in my original post, so here goes...
Yes, I've changed the terms, and that change is significant. We need to know what is meant by publication. As you said, "Where [you] take issue is what [I] degrade publishing into." Unfortunately, I never understood from your example what I supposedly degraded publishing into, or what you thought it was originally. So, here's what I think:
Publishing is the act of making something public. It includes dissemination, which is the word you used rather than publishing. I don't know if you thought that distinction was important; for me it is not. Dissemination is part of publishing, and it is particularly important for profit-making, but it is not the part I am most interested in. I am interested in publishing because it transforms art into culture. I am also interested because legally speaking, copyright does not fully recognize this transformation, and that is a problem.
Let me explain:
Up to the point of publication, I have no problem applying the concept of ownership to art. I have no problem saying the 30 canvases warehoused by your hypothetical artist belong to that artist. Or, perhaps I should say I have no problem saying he owns the art on those canvases, since the canvases are physical objects, and will have an owner even without the benefit of copyright. But, if he publishes the canvases by making the art public and disseminating copies of it, I do have a problem.
Publishing is the act of making something public. Or, put another way, publishing is an offering from the artist to the public. There is an implicit transfer of ownership in publication that is not recognized by any law. It is a transfer of the piece of art from the artist to the public. This is what it means for a piece of art to become culture: The art shifts from being individually owned (by the artist) to collectively owned (by society). Which is to say, it is owned by no one.
This is a necessary part of publication. Culture doesn't exist on an individual level; it is fundamentally a commons. What is culture if it is not shared? You can't have a culture of one. This puts culture directly at odds with the concept of ownership, which is fundamentally the right to exclude. Exclusion and sharing are direct opposites. If something is culture, it can't be individually owned.
If the purpose of copyright law it to increase the creation of culture (which it does by incentivizing publication), copyright law in incompatible with the concepts of property and ownership. The analogy is inappropriate. This is why I worked so hard to shift terms from creation to publication. A creation (art) can be owned. A publication (culture) cannot.
This is why the internet transition matters so much. Prior to the internet, culture was shared through the use of physical artifacts: Records, Books, DVDs, etc. Even though the culture on these artifacts did not admit ownership, the items themselves were physical things that could be owned. The internet made it much easier to share culture *without* the corresponding physical artifacts.
In the pre-internet world, the conflict between culture and ownership was much less relevant. Even though the major creative industries *did* claim ownership of culture through copyright, the practical effect on most people was minimal, because most culture-sharing did not happen in a way that was visible or enforceable by the self-proclaimed owners of culture. The only people who were affected by these false claims were the artists themselves, and the outcomes of these conflicts are well documented here and elsewhere. For the most part, these fights went to the content industries, not least because they could make a credible argument that such "ownership" was beneficial to the artists by offering protection for their work. We know now that such protection did not prevent most artists from losing "ownership" of their works to the major publishers and distributors, but that awareness was not there at the time.
So, if copyright is about increasing culture, it cannot be about ownership. The concept of "intellectual property" does not make sense when applied to cultural creations. There are ways in which copyright does make sense, but they do not involve the concept of property, and we have to rid ourselves of this misconception, no matter how long it has been with us.
" The reason why having it is necessarily better than not having it is because the people who do not wish to enforce their copyright don't have to. Copyright law still requires an affirmative action by a rights holder to enforce the right."
As I said, I'm not an abolitionist. That said, enforcementmay require affirmative action, but copyright is automatic. This is a problem due to the infamous "chilling effects". The real consequence of automatic copyright is an increase in the cost of creation, and a fundamental limitation on speech that involves culture that is "owned". A law that limits how we may discuss our own culture is corrupt, and actively inhibits the growth of culture.
I'd be much more in favour of a copyright system that truly requires affirmative action. In my mind, this means requiring registration and mandatory labelling with the date of expiry (not the date of publication). Such a system would still allow copyright for those who desire it, but would ensure that it is abundantly clear when infringement is a problem rather than forcing people to guess whether or not they will be sued.
"I believe the above scenario is a case where the public and private interests aren't locked into a zero sum death match. You're clearly bright and you've clearly thought this through. I would be surprised if you didn't agree here. "
You're right, I should clarify. "Either/or" was the wrong phrasing, because it's not a binary situation, but it is zero sum. What I mean is this: You're right that there is middle ground between creators earning a living and the public domain being fully and rapidly filled. But, "balance" still implies that an increase in one necessitates a decrease in the other. It still implies compromise.
The rest of the argument doesn't change; copyright is still intended to be a means of taking away from the public domain to enable creators to make money. And, it is still totally irrelevant to the actual factors that allow creators to make a living.
"the fact that copyright is not proving to provide large amounts of revenue to the majority of artists (it still helps a minority of artists quite a bit) today doesn't mean that it never will again. It just doesn't logically follow."
True, but that's a piss poor justification for a law. Just because copyright might once again be effective in the future is no reason to keep it on the books today. If copyright once again becomes useful, put it back on the books. And, even though I didn't provide them, I do think there are valid reasons to think that copyright won't come back. There are better solutions to these problems; let's use them.
" This doesn't mean that copyright has become useless; it is simply useful to a different person, the author instead of the publisher."
Here we simply disagree; I don't think copyright was ever of use to authors, and I think it is no longer of any use to publishers. My purpose here has been to illustrate why I think that, but I'm at peace with not having convinced you as long as I've engaged you.
I don't believe either the bargain or the balance theories provide adequate explanations for how copyright is useful, but if I haven't convinced you of that, it goes without saying we will disagree over who and what copyright is useful for.
As I said at the very beginning of this post, I believe the purpose of copyright (or something like it) are to preserve attribution and prevent fraud. Both of those are useful to authors and publishers to varying degrees. And copyright *has* addressed both of these in the past, but it also does much more, and much of that "more" is harmful to authors and publishers. A "good" copyright law needs a full redesign.
Having written a novel in the comment above, I think I can simplify Mike's ubiquitous CwF+RtB formula into plainer English (or at least explain the logic underneath it):
In my previous comment, I looked at whether copyright was necessary and sufficient for a creator to make money. It's not. But this is what CwF+RtB is about:
CwF and RtB are both necessary to make a sale, and together they are sufficient to make a sale.
In other words, Connecting with Fans and having a Reason to Buy are both required to make a sale. And, if you have those two things, there's nothing else you need.
In English, I translate this as Reputation+Product. An artist trades on his reputation. If he has that, he has the ability to make money from it. But, in order to make money from it, he needs a product to sell. If he has both a reputation and a product, he'll make money; he doesn't need anything else. If he's missing either reputation or a product, he won't make money.
This is the forumla for selling just about anything. No copyright required...
"Again, assuming the balance/bargain paradigm is valid (and I see no evidence put forward by Mike or anyone else that it isn't)"
Let me see if I can take this on.
Bargain:
You've described this as a trade: Monopoly in exchange for growing the public domain.
This doesn't make sense. Why would we as a society shrink the public domain (without copyright, everything is public domain) in order to grow it? Society doesn't gain anything from this bargain.
In order for this bargain to work, you need another assumption: The rate of creation will be higher when monopoly rights are granted. This is a very mercantile view that conflicts with modern economics; ordinarily, we assume competition, not monopoly will optimize the rate of creation. But, for the sake of argument, let's grant this assumption and say that monopoly is an effective incentive to create. Now, our bargain looks like this:
Monopoly in exchange for increased creation.
We have to ask: Increased creation of what? Art? Why does society want that? Society doesn't benefit merely from the creation of art. Art is amazing and important, and vital to the development of society. But simply creating it isn't enough. Art is of no use to society if it sits in a warehouse an nobody sees it.
Society gets a raw deal if all it gets is creation, because that's not what society really wants. Creating art doesn't need incentive; it happens all the time. Creation is what human beings *do*. What society really wants is for that art to spread. Strong cultures are built on ideas that are widely spread and accepted, and what society really wants is a strong culture. Now, our bargain looks like this:
Monopoly in exchange for stronger culture.
Now, finally, things are starting to make sense. Copyright isn't an incentive to create; creation doesn't need further incentive. What needs incentive is *publishing*: Making art public, and distributing it widely. Strong societies are built on the art that is published, not the art that is locked in vaults.
In a pre-internet world, this bargain made perfect sense: Publishing was expensive, and it was more profitable to publish (pirate) other people's works than your own because the fixed creation costs could be bourne by someone else (i.e. the creator). This in turn was a disincentive to publishing new works, because publishers could make more profit publishing old works than new ones. Copyright fixed this: It made existing works scarce (and thus more expensive), and thus made new works more profitable than old ones.
So, really, the bargain that made sense was this:
Monopoly in exchange for publication.
Society gets what it wants (widely distributed public art), and creators [ahem] publishers get a profit. But, this bargain no longer makes sense. The internet means publication is no longer expensive. In fact, it's virtually free. And, we've discovered that people will publish widely given the opportunity to do so cheaply. We publish EVERYTHING, just ask Facebook. In fact, copyright is now a *disincentive* to publishing, because monopoly rights create scarcity, which makes publishing (and creation) more expensive.
So, my evidence against the bargain paradigm is this: Society no longer needs the copyright bargain to get what it needed (publication and distribution of art).
Balance:
You described the private interest of creators as being "able to earn a living off their work so that they don't also have to work a day job."
As far as I can tell, you didn't say what you thought the public interest was, so I'll quote the person you were responding to: "having works in the public domain as fully and rapidly as possible". This is very similar to the public's side of the bargain: the public wants publication and wide distribution.
The balance paradigm assumes an either/or situation: Either creators earn a living, or the public domain is fully and rapidly filled. It also assumes that, without copyright, things are out of balance. Without copyright, society wins: The public domain is full, and creators don't earn a living. Therefore, copyright is assumed to be sufficient to allow creators to make a living: If you have it, creators will make money. It is also assumed to be necessary: without it, creators will not make money.
I've responded to the fallacy that copyright enables creators to live off their work in another post, so I apologize if I repeat myself. The usual answer around here is to attack the second point: Copyright is not necessary to earn a living off your work. There are numerous other business models that are as effective or more effective than copyright. The specific examples are numerous, but they usually boil down to advertising, merchandising, performing, or patronage. This site is dedicated to this kind of example, and I'm not going to spend much more time on it unless you challenge me on this point. There are plenty of ways for creators to make money without copyright.
It turns out, not only is copyright unnecessary to make a living as a creator, it's also insufficient. Nobody is obligated to buy from a creator just because it was created under copyright. They still have to sell their work. And, as we can tell from the fact that 99.5ish% of copyrighted works are out of print, most work under copyright cannot be sold because there is simply no market for it. Clearly, the 0.5% of copyrighted works that *do* sell are selling for reasons other than simply having copyright.
In fact, what is being sold is not the creation, but the reputation of the creation, or that of the creator. An artist (or a creation) with no reputation can't sell anything without a huge marketing campaign — and a marketing campaign is really just an expensive but quick means of building a reputation. On the other hand, an artist with a strong reputation can literally sell anything (see: urinals disguised as public art in the Met).
Long story short, copyright is neither necessary nor sufficient for creators to make money. That means that it is irrelevant to balancing the need for creators to make money with the public's need for a strong public domain. The balance paradigm doesn't hold water.
Postscript:
So, why *do* we think copyright can help creators make money? The answer is in the way copyright incentivizes publication. In the "bargain" section, I pointed out that, under copyright, new works become cheaper to publish than old works. Historically, this meant publishers had incentive to support the professional creation of new works by exploiting the copyright. However, now that the internet has made self-publication widely possible, the publishers that traditionally offered that money to creators find themselves without a product to sell, and thus without money to offer to creators. So, while copyright was of limited benefit to creators in the past, this is no longer the case.
"In order for them to make a living off their work, they need to protect their rights to exploit those works."
False. They do not need copyright to exploit the works they produce. Abolishing copyright would not remove their right to exploit those works because copyright is not the right to exploit. It is the right to exclude. The right to exploit simply doesn't need protecting, except possibly from first-to-file patent laws.
I think what you mean is this: "In order for them to make a living off their work, they need to protect their right to exclude others from exploiting those works".
This is still false. There are plenty of ways to make a living off their work which do not involve excluding others. See also: Fashion, Magic, Comedy, Food, and many other industries that do not offer exclusive sale rights.
I haven't seen The Captains, but your description of the Guilded Age sounds accurate. 14 hour days are the norm on large sets; make that 18 for the PAs at the bottom. It's a culture of extreme workoholism and transience. It's incredibly stimulating for short periods of time, but it's not a viable long-term career. Most people burn out by 40, and those that stick around tend to have substance abuse problems (nicotine, alcohol, caffeine, or all three). The surviving members of the film industry tend to work in support services (equipment service and rentals), since that's where the real money and proper hours are.
The one point of disagreement I have is this: You *can* say no to Hollywood. Sure, there's competition just like any other field, but letting one of the 100 other guys take your spot when you need a break isn't going to end your career. That's just fear talking, and the fear comes from being freelance: You're constantly looking for work, so it feels like you need to say yes to it all when it comes. Learning how to deal with this fear (and how to say no) is fundamentally important to succeeding in this industry.
" “free and open” cannot be synonymous with “working for free.”
...but what does it even mean? No one is asking anyone to work for free."
Think literally. *You* may not be asking anyone to work for free, but as an film industry tech, *I* get asked all the time, often by the same people you are complaining about. The film industry is built on the back of free labour.
Much of the explosion in film production that you cite falls in the category; there's a large amount of personal or art projects that are made entirely from free labour. It's virtually impossible to built a career in film without working for free at least sometimes.
I made my peace with this long ago (the free gigs are generally the most rewarding to work on), since it's perfectly possible to find paid work. As you are well aware, just because you *can* get free labour doesn't mean people aren't willing to pay for it if you offer them good value. This isn't a complaint. I just want you to know that Chris Dodd really does mean "working for free" when he says "working for free". There's nothing deceptive in his meaning.
It's not just rulings about shady gambling schemes that the US ignores.
The US destroyed a billion dollar lumber industry in Canada by allowing price fixing. The WTO smacked it down, and the US ignored that ruling too. Canada bent over and took it.
The WTO has teeth for every country except the USA. The US ignoring the WTO is business as usual. Kudos for Antigua for offering real consequences to US bad behaviour.
Imagine if Canada ignored US Copyright equivalent to the value of our former lumber industry. I think the US *might* pay attention to that.
"Remember, all it is doing is giving police / authorities a way to get relevant information without first having to go through flaming hoops in court"
Yes. We know that. That's why we're upset: Those flaming hoops are there for a very good reason. Making surveillance easy and invisible is a path to abuse of power. Getting a warrant with court oversight is a key part of allowing the police to exercise the special powers that they need without permitting those powers to rise to the level of abuse. The legal limits regarding searches and warrants have been in place for a century or more. If we're going to dismantle them now, there'd better be a damn good reason and a thorough debate about it.
I notice you've been ignoring the other posts I've made about this. Your silence speaks volumes.
Why should we be worried about to government having the ability to implement widespread spying without evidence that it intends to do so (and I would dispute that there is no such evidence)?
Because having the ability to do so means they can change their mind and decide to build spynet at any time without public knowledge or debate. And if we're going to go down that road, you'd better believe I want that debated for months in parliament. The time for that debate is right now; if we don't deal with this now, we lose our chance to prevent it in the future.
There is a well accepted way in which police are permitted to use powers that may otherwise violate people's rights. It involves warrants, transparency and oversight. We do NOT hand over the ability to violate our rights (to privacy in this case) to the government. That way lies facism.
On the post: New FISA Court Appointees Are A Pro-Government Prosecutor And An Unknown Quantity
Richard Tallman?
I think Richard Stallman could do some good as a FISA court judge.
On the post: DOJ Says Company That Vetted Snowden Faked 665,000 Background Checks
Response to: Anonymous Coward on Jan 27th, 2014 @ 4:57pm
On the post: Hacktivist Jeremy Hammond Gets 10 Years In Prison; Explains How FBI Gave Him The Targets To Hack
"Advanced tools"
Isn't PLESK a web hosting platform, not a hacking tool? Methinks whoever did this journalism didn't get their facts right.
On the post: Claim Of '54 Terrorist Attacks Thwarted' By NSA Continues To Spread Despite Lack Of Evidence
How are 54 attacks supposed to justify universal surveillance?
Let's assume the worst and say that each attack averages 100 deaths (my guess is this is a very high number, but I'm too lazy to look up figures right now). That means the total effect of the NSA's programs is the prevention of 5,400 deaths.
That's not nothing, but it's not very impressive either. The NSA's budget is in the $10s of billions. Their sole mandate is to stop terrorism. If I'm counting correctly, they are spending more than $1 million to prevent each death. And that doesn't take into account the social cost of massively violating people's civil liberties.
We could spend the same amount on preventing road accidents and get a MASSIVELY better return on investment (in terms of lives saved).
We could spend the same amount on dealing the the social causes of drug and alcohol abuse and get a MASSIVELY better return on investment.
Neither of these options require surveillance or any kind of compromise of the Constituion.
So, someon tell me, why are we arguing over how many attacks were actually prevented when even the best case scenario (from the NSA's perspective) shows that the money is grossly misspent?
On the post: Arrested Development Documentary Has To Hit Up Kickstarter Because Fox Claims Copyright On Set Photos
Works for Hire
More than likely, the photos didn't just come from random crew members, but from the official stills photographer, who would also have an explicit contract assigning copyright to the production company (Fox). This is true with or without work for hire concepts; the copyright assignment is a standard part of the employment contract.
So, it's incorrect for Mike to call this bogus or copyfraud. They are not claiming copyright over the set itself; they are claiming copyright on the photos which would have been assigned to them by contract as a routine part of producing the series.
There's no question in my mind that this *should* be fair use, and in an ideal world the lawsuit would be frivolous. However, we don't live in that world, and I have no doubt that the law in this case will favour Fox.
On the post: Indie Film Distributor Spends Half Her Profits Sending DMCA Takedowns, But Is It Worth It?
Re:
Bingo. This is the real reason why it's worth spending $30K on anti-piracy efforts. It has nothing to do with whether or not anti-piracy is actually effective at raising sales. It's all about protecting relationships and being seen as a trustworthy distributor.
The film distribution is built on favours and horse trading, and it's all regional. Distribution rights are divvied up into exclusive sections, and distributors specialize in specific areas where they have rights to distribute.
Piracy doesn't care about exclusive contracts. Once it's available online, it's available everywhere, and the formerly exclusive agreements don't mean squat. Now, granted, you can't stop piracy, but as a distributor, you don't want to be seen as the one who let the horse out of the barn. So you do as much as you can to be seen visibly fighting piracy, whether or not it's effective.
Kathy isn't spending money to protect sales. She's spending money to protect relationships. I believe Tim 100% that the $30K does nothing to boost sales directly. But, he's missing what that $30K is actually buying: Credibility that will give her access to a wider variety of more lucrative film s to distribute.
On the post: Chris Dodd Sounding Like A Broken Recording Industry
Re: Re: Re: Re: Re: Re: Re: Radical Mike
If you *really* want to hear some details about the reforms I'd like to see, I suggest you petition Mike Masnick to guest-feature it as a full article or series of articles. It will take me several hours/days to write it all out in a way that makes sense to ordinary people, because there's a lot of theoretical framework that is needed to make sense of it. Case in point: It took me two LONG posts and >5 hours to fully explain my point about publication being a gift from the artist to society.
I'm glad you like my ideas, and I'd love my ideas to spread, but the time investment on my part is not insignificant, and it's balanced against a life that is already very busy. A wider audience might flatter me enough to undertake a more serious exploration.
On the post: Chris Dodd Sounding Like A Broken Recording Industry
Re: Re: Re: Re: Re: Re: Re: Radical Mike
On the post: Chris Dodd Sounding Like A Broken Recording Industry
Re: Re: Re: Re: Re: Radical Mike
First, a clarification. I am not an abolitionist. I am a radical reformer, and the copyright I envision doesn't resemble anything suggested so far on this thread. My post was not intended to be a defence of abolition, though I realize that was the topic of your original post. My concern was simply to point out that neither the bargain nor the balance theory are adequate justifications for copyright. I believe such a justification exists. For me, the central concern of copyright is preserving attribution and preventing fraud. Perhaps I will share those ideas at some point, but not tonight.
To address your specific points.
"Well I think this is a false dilemma. Remember that the public domain grows with the number of works created. This is a simple mathematical fact. Would you agree that incentives by definition encourage people to do or abstain from doing things?"
Yes, it is a false dilemma. I posed it because I wanted to reveal the underlying assumption, which I'll simply re-quote: "In order for this bargain to work, you need another assumption: The rate of creation will be higher when monopoly rights are granted."
The real question here is not whether incentives encourage or discourage action, but whether or not copyright is actually an incentive to create. I granted this for the sake of argument, but I also presented a lengthy argument (which I think you agreed with) that copyright is an incentive to publish, not to create.
Moving on.
"You're strawmaning it a little here. I never claimed that simply creating a piece of artwork is enough that someone should get paid for it."
I have no quarrel here. Yes, I set up a false argument. I didn't mean to imply that you advocated it; I was simply using it to illustrate the point that you eventually agreed with: "In order to both get paid and add to culture, the work must be disseminated." Most people stop at creation and never get to dissemination; my argument is clearer if I explicitly destroy the straw man.
Still moving on.
"Ok. The way I see it, all you've done is add one link to the chain of reason. if publishing, not creation is the goal of copyright, then copyright incentivises publishing, not creation. I don't necessarily agree with you, but even if you're right, the reasoning for copyright law remains the same, only the terms have changed ("creation" is now "publication")."
Ok, here I need to do some work. I neglected to present the crux of my argument in my original post, so here goes...
Yes, I've changed the terms, and that change is significant. We need to know what is meant by publication. As you said, "Where [you] take issue is what [I] degrade publishing into." Unfortunately, I never understood from your example what I supposedly degraded publishing into, or what you thought it was originally. So, here's what I think:
Publishing is the act of making something public. It includes dissemination, which is the word you used rather than publishing. I don't know if you thought that distinction was important; for me it is not. Dissemination is part of publishing, and it is particularly important for profit-making, but it is not the part I am most interested in. I am interested in publishing because it transforms art into culture. I am also interested because legally speaking, copyright does not fully recognize this transformation, and that is a problem.
Let me explain:
Up to the point of publication, I have no problem applying the concept of ownership to art. I have no problem saying the 30 canvases warehoused by your hypothetical artist belong to that artist. Or, perhaps I should say I have no problem saying he owns the art on those canvases, since the canvases are physical objects, and will have an owner even without the benefit of copyright. But, if he publishes the canvases by making the art public and disseminating copies of it, I do have a problem.
Publishing is the act of making something public. Or, put another way, publishing is an offering from the artist to the public. There is an implicit transfer of ownership in publication that is not recognized by any law. It is a transfer of the piece of art from the artist to the public. This is what it means for a piece of art to become culture: The art shifts from being individually owned (by the artist) to collectively owned (by society). Which is to say, it is owned by no one.
This is a necessary part of publication. Culture doesn't exist on an individual level; it is fundamentally a commons. What is culture if it is not shared? You can't have a culture of one. This puts culture directly at odds with the concept of ownership, which is fundamentally the right to exclude. Exclusion and sharing are direct opposites. If something is culture, it can't be individually owned.
If the purpose of copyright law it to increase the creation of culture (which it does by incentivizing publication), copyright law in incompatible with the concepts of property and ownership. The analogy is inappropriate. This is why I worked so hard to shift terms from creation to publication. A creation (art) can be owned. A publication (culture) cannot.
This is why the internet transition matters so much. Prior to the internet, culture was shared through the use of physical artifacts: Records, Books, DVDs, etc. Even though the culture on these artifacts did not admit ownership, the items themselves were physical things that could be owned. The internet made it much easier to share culture *without* the corresponding physical artifacts.
In the pre-internet world, the conflict between culture and ownership was much less relevant. Even though the major creative industries *did* claim ownership of culture through copyright, the practical effect on most people was minimal, because most culture-sharing did not happen in a way that was visible or enforceable by the self-proclaimed owners of culture. The only people who were affected by these false claims were the artists themselves, and the outcomes of these conflicts are well documented here and elsewhere. For the most part, these fights went to the content industries, not least because they could make a credible argument that such "ownership" was beneficial to the artists by offering protection for their work. We know now that such protection did not prevent most artists from losing "ownership" of their works to the major publishers and distributors, but that awareness was not there at the time.
So, if copyright is about increasing culture, it cannot be about ownership. The concept of "intellectual property" does not make sense when applied to cultural creations. There are ways in which copyright does make sense, but they do not involve the concept of property, and we have to rid ourselves of this misconception, no matter how long it has been with us.
" The reason why having it is necessarily better than not having it is because the people who do not wish to enforce their copyright don't have to. Copyright law still requires an affirmative action by a rights holder to enforce the right."
As I said, I'm not an abolitionist. That said, enforcementmay require affirmative action, but copyright is automatic. This is a problem due to the infamous "chilling effects". The real consequence of automatic copyright is an increase in the cost of creation, and a fundamental limitation on speech that involves culture that is "owned". A law that limits how we may discuss our own culture is corrupt, and actively inhibits the growth of culture.
I'd be much more in favour of a copyright system that truly requires affirmative action. In my mind, this means requiring registration and mandatory labelling with the date of expiry (not the date of publication). Such a system would still allow copyright for those who desire it, but would ensure that it is abundantly clear when infringement is a problem rather than forcing people to guess whether or not they will be sued.
"I believe the above scenario is a case where the public and private interests aren't locked into a zero sum death match. You're clearly bright and you've clearly thought this through. I would be surprised if you didn't agree here. "
You're right, I should clarify. "Either/or" was the wrong phrasing, because it's not a binary situation, but it is zero sum. What I mean is this: You're right that there is middle ground between creators earning a living and the public domain being fully and rapidly filled. But, "balance" still implies that an increase in one necessitates a decrease in the other. It still implies compromise.
The rest of the argument doesn't change; copyright is still intended to be a means of taking away from the public domain to enable creators to make money. And, it is still totally irrelevant to the actual factors that allow creators to make a living.
"the fact that copyright is not proving to provide large amounts of revenue to the majority of artists (it still helps a minority of artists quite a bit) today doesn't mean that it never will again. It just doesn't logically follow."
True, but that's a piss poor justification for a law. Just because copyright might once again be effective in the future is no reason to keep it on the books today. If copyright once again becomes useful, put it back on the books. And, even though I didn't provide them, I do think there are valid reasons to think that copyright won't come back. There are better solutions to these problems; let's use them.
" This doesn't mean that copyright has become useless; it is simply useful to a different person, the author instead of the publisher."
Here we simply disagree; I don't think copyright was ever of use to authors, and I think it is no longer of any use to publishers. My purpose here has been to illustrate why I think that, but I'm at peace with not having convinced you as long as I've engaged you.
I don't believe either the bargain or the balance theories provide adequate explanations for how copyright is useful, but if I haven't convinced you of that, it goes without saying we will disagree over who and what copyright is useful for.
As I said at the very beginning of this post, I believe the purpose of copyright (or something like it) are to preserve attribution and prevent fraud. Both of those are useful to authors and publishers to varying degrees. And copyright *has* addressed both of these in the past, but it also does much more, and much of that "more" is harmful to authors and publishers. A "good" copyright law needs a full redesign.
On the post: Chris Dodd Sounding Like A Broken Recording Industry
CwF+RtB
In my previous comment, I looked at whether copyright was necessary and sufficient for a creator to make money. It's not. But this is what CwF+RtB is about:
CwF and RtB are both necessary to make a sale, and together they are sufficient to make a sale.
In other words, Connecting with Fans and having a Reason to Buy are both required to make a sale. And, if you have those two things, there's nothing else you need.
In English, I translate this as Reputation+Product. An artist trades on his reputation. If he has that, he has the ability to make money from it. But, in order to make money from it, he needs a product to sell. If he has both a reputation and a product, he'll make money; he doesn't need anything else. If he's missing either reputation or a product, he won't make money.
This is the forumla for selling just about anything. No copyright required...
On the post: Chris Dodd Sounding Like A Broken Recording Industry
Re: Re: Re: Radical Mike
Let me see if I can take this on.
Bargain:
You've described this as a trade: Monopoly in exchange for growing the public domain.
This doesn't make sense. Why would we as a society shrink the public domain (without copyright, everything is public domain) in order to grow it? Society doesn't gain anything from this bargain.
In order for this bargain to work, you need another assumption: The rate of creation will be higher when monopoly rights are granted. This is a very mercantile view that conflicts with modern economics; ordinarily, we assume competition, not monopoly will optimize the rate of creation. But, for the sake of argument, let's grant this assumption and say that monopoly is an effective incentive to create. Now, our bargain looks like this:
Monopoly in exchange for increased creation.
We have to ask: Increased creation of what? Art? Why does society want that? Society doesn't benefit merely from the creation of art. Art is amazing and important, and vital to the development of society. But simply creating it isn't enough. Art is of no use to society if it sits in a warehouse an nobody sees it.
Society gets a raw deal if all it gets is creation, because that's not what society really wants. Creating art doesn't need incentive; it happens all the time. Creation is what human beings *do*. What society really wants is for that art to spread. Strong cultures are built on ideas that are widely spread and accepted, and what society really wants is a strong culture. Now, our bargain looks like this:
Monopoly in exchange for stronger culture.
Now, finally, things are starting to make sense. Copyright isn't an incentive to create; creation doesn't need further incentive. What needs incentive is *publishing*: Making art public, and distributing it widely. Strong societies are built on the art that is published, not the art that is locked in vaults.
In a pre-internet world, this bargain made perfect sense: Publishing was expensive, and it was more profitable to publish (pirate) other people's works than your own because the fixed creation costs could be bourne by someone else (i.e. the creator). This in turn was a disincentive to publishing new works, because publishers could make more profit publishing old works than new ones. Copyright fixed this: It made existing works scarce (and thus more expensive), and thus made new works more profitable than old ones.
So, really, the bargain that made sense was this:
Monopoly in exchange for publication.
Society gets what it wants (widely distributed public art), and creators [ahem] publishers get a profit. But, this bargain no longer makes sense. The internet means publication is no longer expensive. In fact, it's virtually free. And, we've discovered that people will publish widely given the opportunity to do so cheaply. We publish EVERYTHING, just ask Facebook. In fact, copyright is now a *disincentive* to publishing, because monopoly rights create scarcity, which makes publishing (and creation) more expensive.
So, my evidence against the bargain paradigm is this: Society no longer needs the copyright bargain to get what it needed (publication and distribution of art).
Balance:
You described the private interest of creators as being "able to earn a living off their work so that they don't also have to work a day job."
As far as I can tell, you didn't say what you thought the public interest was, so I'll quote the person you were responding to: "having works in the public domain as fully and rapidly as possible". This is very similar to the public's side of the bargain: the public wants publication and wide distribution.
The balance paradigm assumes an either/or situation: Either creators earn a living, or the public domain is fully and rapidly filled. It also assumes that, without copyright, things are out of balance. Without copyright, society wins: The public domain is full, and creators don't earn a living. Therefore, copyright is assumed to be sufficient to allow creators to make a living: If you have it, creators will make money. It is also assumed to be necessary: without it, creators will not make money.
I've responded to the fallacy that copyright enables creators to live off their work in another post, so I apologize if I repeat myself. The usual answer around here is to attack the second point: Copyright is not necessary to earn a living off your work. There are numerous other business models that are as effective or more effective than copyright. The specific examples are numerous, but they usually boil down to advertising, merchandising, performing, or patronage. This site is dedicated to this kind of example, and I'm not going to spend much more time on it unless you challenge me on this point. There are plenty of ways for creators to make money without copyright.
It turns out, not only is copyright unnecessary to make a living as a creator, it's also insufficient. Nobody is obligated to buy from a creator just because it was created under copyright. They still have to sell their work. And, as we can tell from the fact that 99.5ish% of copyrighted works are out of print, most work under copyright cannot be sold because there is simply no market for it. Clearly, the 0.5% of copyrighted works that *do* sell are selling for reasons other than simply having copyright.
In fact, what is being sold is not the creation, but the reputation of the creation, or that of the creator. An artist (or a creation) with no reputation can't sell anything without a huge marketing campaign — and a marketing campaign is really just an expensive but quick means of building a reputation. On the other hand, an artist with a strong reputation can literally sell anything (see: urinals disguised as public art in the Met).
Long story short, copyright is neither necessary nor sufficient for creators to make money. That means that it is irrelevant to balancing the need for creators to make money with the public's need for a strong public domain. The balance paradigm doesn't hold water.
Postscript:
So, why *do* we think copyright can help creators make money? The answer is in the way copyright incentivizes publication. In the "bargain" section, I pointed out that, under copyright, new works become cheaper to publish than old works. Historically, this meant publishers had incentive to support the professional creation of new works by exploiting the copyright. However, now that the internet has made self-publication widely possible, the publishers that traditionally offered that money to creators find themselves without a product to sell, and thus without money to offer to creators. So, while copyright was of limited benefit to creators in the past, this is no longer the case.
On the post: Chris Dodd Sounding Like A Broken Recording Industry
Re: Re: Seriously?
False. They do not need copyright to exploit the works they produce. Abolishing copyright would not remove their right to exploit those works because copyright is not the right to exploit. It is the right to exclude. The right to exploit simply doesn't need protecting, except possibly from first-to-file patent laws.
I think what you mean is this: "In order for them to make a living off their work, they need to protect their right to exclude others from exploiting those works".
This is still false. There are plenty of ways to make a living off their work which do not involve excluding others. See also: Fashion, Magic, Comedy, Food, and many other industries that do not offer exclusive sale rights.
On the post: Chris Dodd Sounding Like A Broken Recording Industry
Re: Re: Working for Free
The one point of disagreement I have is this: You *can* say no to Hollywood. Sure, there's competition just like any other field, but letting one of the 100 other guys take your spot when you need a break isn't going to end your career. That's just fear talking, and the fear comes from being freelance: You're constantly looking for work, so it feels like you need to say yes to it all when it comes. Learning how to deal with this fear (and how to say no) is fundamentally important to succeeding in this industry.
On the post: Chris Dodd Sounding Like A Broken Recording Industry
Working for Free
...but what does it even mean? No one is asking anyone to work for free."
Think literally. *You* may not be asking anyone to work for free, but as an film industry tech, *I* get asked all the time, often by the same people you are complaining about. The film industry is built on the back of free labour.
Much of the explosion in film production that you cite falls in the category; there's a large amount of personal or art projects that are made entirely from free labour. It's virtually impossible to built a career in film without working for free at least sometimes.
I made my peace with this long ago (the free gigs are generally the most rewarding to work on), since it's perfectly possible to find paid work. As you are well aware, just because you *can* get free labour doesn't mean people aren't willing to pay for it if you offer them good value. This isn't a complaint. I just want you to know that Chris Dodd really does mean "working for free" when he says "working for free". There's nothing deceptive in his meaning.
On the post: 10 Years Later: Antigua May Finally (Really) Set Up Official 'Pirate' Site To Get Back What US Owes In Sanctions
Go Antigua
It's not just rulings about shady gambling schemes that the US ignores.
The US destroyed a billion dollar lumber industry in Canada by allowing price fixing. The WTO smacked it down, and the US ignored that ruling too. Canada bent over and took it.
The WTO has teeth for every country except the USA. The US ignoring the WTO is business as usual. Kudos for Antigua for offering real consequences to US bad behaviour.
Imagine if Canada ignored US Copyright equivalent to the value of our former lumber industry. I think the US *might* pay attention to that.
On the post: Ross Pruden's Favorites Of The Week: Hand Me The Keys (Or I'll Take Them)
a viscous streak?
Sorry, the typo was too funny to pass over...
On the post: Judge Chooses Pi Day To Reject Lawsuit Over Attempt To Copyright Pi As A Song
I can see it now...
On the post: How New Internet Spying Laws Will Actually ENABLE Stalkers, Spammers, Phishers And, Yes, Pedophiles & Terrorists
Re: Re: Re: Re: Re:
Yes. We know that. That's why we're upset: Those flaming hoops are there for a very good reason. Making surveillance easy and invisible is a path to abuse of power. Getting a warrant with court oversight is a key part of allowing the police to exercise the special powers that they need without permitting those powers to rise to the level of abuse. The legal limits regarding searches and warrants have been in place for a century or more. If we're going to dismantle them now, there'd better be a damn good reason and a thorough debate about it.
I notice you've been ignoring the other posts I've made about this. Your silence speaks volumes.
On the post: How New Internet Spying Laws Will Actually ENABLE Stalkers, Spammers, Phishers And, Yes, Pedophiles & Terrorists
Re: Re: Re: Re: Re: Re: Re:
Why should we be worried about to government having the ability to implement widespread spying without evidence that it intends to do so (and I would dispute that there is no such evidence)?
Because having the ability to do so means they can change their mind and decide to build spynet at any time without public knowledge or debate. And if we're going to go down that road, you'd better believe I want that debated for months in parliament. The time for that debate is right now; if we don't deal with this now, we lose our chance to prevent it in the future.
There is a well accepted way in which police are permitted to use powers that may otherwise violate people's rights. It involves warrants, transparency and oversight. We do NOT hand over the ability to violate our rights (to privacy in this case) to the government. That way lies facism.
On the post: How New Internet Spying Laws Will Actually ENABLE Stalkers, Spammers, Phishers And, Yes, Pedophiles & Terrorists
Re:
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