Re: Re: Distinguishing the Ideas and the Expression
By all means discuss how the system may be made more efficient. Indeed, the suggestion of changing the law to allow non-commercial use of content legal is, I think, an excellent step in the right direction toward making things more efficient. I also think it would tend to minimize lawsuits about copyright, though there will inevitably be some suits that would initially test, and after a decision, clarify the boundaries.
But just because some "entities" try to push those boundaries in ways that abuse the system doesn't necessarily mean that the system or the law is broken.
Sorry, not in this case. The cracking files Ward distributed were specifically tailored to circumvent Dish Network encryption and used their proprietary codes to do so. The court found that the files had "no other commercially significant purpose or use."
And this is specifically a crime under several statutes. Cracking encryption like this is indeed theft of service. Defending copyright infringement as fair use is one thing, but theft of services has long been a criminal matter, not a civil one.
So perhaps separating out commercial and non-commercial use is a step in the right direction. But I'm still confused about how you determine what really is commercial use vs. non-commercial use.
A distinction that sometimes gets lost in these debates is that between an idea and the fixed, specific expression of that idea. Once you keep that in mind, it's not all that confusing, though gray areas remain.
If I use your information to make an investment, is that commercial use?
Clearly no. No more so that if you use a bit of information or advice you read in the Wall Street Journal to make an investment is a commercial use of the newspaper. You can use the ideas in a bit of content all you want to guide your investment decisions. Unless of course your investment is to copy the content and sell it without permission.
If I have a blog that uses a bit of your content, but has ads on it, is that commercial use?
Perhaps. But hegemon13 above is on the right track with the idea that ancillary income, incidental to the site, but not the specific content should be a non-commercial use of that content. It shouldn't be difficult to craft a general rule on this. For example, if advertising is embedded in the content, such that the content becomes a specific delivery mechanism for the income-earning ads, that might be a commercial use of the content. If the ads are in a sidebar, non-commercial use of the content.
There are some RSS feeds that declare "not for commercial use!" But, if I put that RSS into my feed reader and read it for work, is that commercial use?
Clearly non-commercial. This is how RSS feeds are used all the time. See the first example above. A better question on RSS feeds would be if you use the RSS to feed a "breaking news" feature on your web site and it's the only content on the site other than ads. That would be a gray area, one that I would tend to consider a commercial use.
Perhaps the lawsuits would establish clear boundaries as well, after a bit of upheaval.... But I think that there will always be new situations that again test the fuzzy border between the two types of use, and drawing any sort of bright line distinction won't really fix very much.
There are always two parts to law: legislation and interpretation and application by the courts. Many posts here point out examples of "silly" lawsuits, but while you may not like lawsuits (except when someone is suing for greater fair use, such as Google v. publishers and authors), they are a fundamental part of determining what law is in the real world.
If legislation were passed (and I agree that this would be a step in the right direction), it is inevitable that there would be lawsuits testing the boundaries of what is allowable under the legislation. It might be messy, it might not be maximally efficient, but then real life is rarely so efficient or clean-cut.
Why donest anyone sue the satelite companies for sending airwaves illegally through my living space?
Uh...because it's not illegal?
But, please, be my guest. You should also sue Verizon, AT&T, T-Mobile, or any other cell phone or Wi-Fi service provider in your area 'cuz they're beaming radio waves through your house. Don't forget to sue all your local radio and broadcast TV stations, too. You could be rich! (or bankrupt).
I agree. The decision is not posted on the court's web site and it takes a while for these things to get into Lexis. But reading the actual decision usually clarifies things that brief news articles leave out.
No matter what one may think of the rightness or wrongness of file-sharing, this is a different story.
Ward was sued under not just the DMCA, but several other statutes. He was providing assistance to others to facilitate unauthorized decryption of a signal. Essentially, this is abetting theft of services, not copying copyrighted content. The DMCA comes in because of the anti-cracking or circumvention clause.
So the damage and loss from potential theft of services may indeed warrant a stiffer penalty. This is not infringement.
Also, the linked article notes:
In a related criminal case, Ward and another Florida resident, Phillip Allison, pleaded guilty last fall in Southern California to a felony count of conspiring to violate the Digital Millennium Copyright Act.
an actual criminal charge relating to the copyright act.
Not necessarily. Depending on the agreement between the publisher and Amazon, the margin on an e-book could be much less than that, or higher.
Generally, Amazon can choose at what price to sell the Kindle version. That may or may not be the price the publisher has put on the Kindle version. If it is the same price, then the publisher's margin is around $7 (less royalty costs, etc.) because Amazon takes their cut in the form of an agreed-up discount in the wholesale price. If the publisher has set the price higher, Amazon must still meet that price (less standard discount), so the publisher may get more and Amazon may be breaking even or taking a loss. I have no idea what Harper's agreement with Amazon is, but since they've priced the e-book at $21.99 (the hardcover is $27.99), if Amazon sells it at $8.61, Harper will get the difference.
You're also a little off in the margin on the hardcover. The gross margin isn't the cover price minus the physical production cost, but the discounted wholesale price less manufacturing cost, and the average discount is at least 40%. So, using your numbers, the gross margin is around $11, not $21.
Given the prices Amazon is selling the book for, I suspect the discounts are higher than 40%.
I'm sorry if I implied, or you inferred, that you were having no impact. We often seem to talk at cross-purposes. I was, however, suggesting that you might have greater impact with a different approach.
We're not going to agree on everything, but as I think you know from past exchanges, we ultimately are getting to the same or at least similar ends, just by different paths.
I'm not upset that you give your opinion, far from it. But, to be frank, I find it less useful. You are direct; so am I and I tend to respond in the same manner in which I am addressed.
It may be that our spheres of the digital world are too different for agreement. I've been considering and working with these issues for nearly 20 years. Part of my job over those years has been to be the "forward-looking" person and I've been active in bringing these issues (and others) to colleagues both in my company and in my industry. I've used the arguments you suggest to convince people that they need to change not just how they do business, but how they think about the business, but will little success. However, the argument I suggested, which is apparently "wrong," has met with much greater success in changing people's mindsets.
I'm not looking to be "coddled" nor am I "misled." I thought that suggesting a different approach toward advocating change might lead to an interesting discussion and in that I was mistaken. This is not the right forum for it.
Heh. It is not a valid definition for the simple fact that it is wrong. I don't know how I can make it any clearer. What you think "theft" is, does not describe "theft." Sorry.
Gee, Mike, you make my case for me. That's a very effective rhetorical method you've got going. If your intention in all this blogging and commenting is to convince and persuade, it's a brilliant opening gambit to declare "your wrong, end of story." I clearly understand your point, though I disagree with it; but you seem to make no effort to even try to fathom my point. It's just wrong so there's no need to consider it. This is where conversation turns to lecture.
Yup, top of my class at a top 10 school. And it's where they taught me much of this stuff, and my profs still read the site. You wish to take it up with them?
No. I'm sure you did quite well in the academic environment. But I would point out that by all accounts Charles Nesson is considered a brilliant legal scholar and teacher, yet it served him very poorly in the real world of courtroom litigation. Not to belittle your accomplishments, but I have several friends and colleagues with MBA, most from Ivy League schools. Nearly all of them say that beyond the basics of business management, not much of what they learned actually helped them in real-world business. I'm sure others will discount this, but it's my experience.
I'm sorry that you appear not to read the explanations, but I don't just "brush it off." I explain why it doesn't make sense to think of it as theft or a moral issue...How can I fail by being right?
Being "right" on this somewhat esoteric point fails because for many it's unpersuasive. And you do "brush off" other views. Indeed, they are just "wrong." It may not make sense to you to think of the moral issue of "theft" but it makes plenty of sense to others. When they disagree with your "explanations" you simply repeat them as the "right" ones. So, you fail at being persuasive. I know you probably don't see this; more's the shame.
The way you wake people up is to explain to them why their initial thoughts were wrong. It may take some effort, but it gets them to look at the world in different way. If you say their (false) ideas are true, then they never get over that point
Well, you're correct that we've had different experiences. And I'm not surprised it takes some effort, because you again miss the point. You may be able to wake some people up by laborious effort to convince them that they are wrong, but I think you have better success with less effort to acknowledge the problem as it is perceived and convince them that the truth is irrelevant to the solution.
Heh. You say that as if I don't have skin in the game. How the hell do you think I make my living?
You're a consultant. You don't run a recording company, movie studio, or publishing house. You advise, but have no responsibility for the ultimate business decisions made, the results of which may be years down the road. I trust you're a bit more diplomatic with your clients on the phone.
Uh, yeah. Ok. Start paying attention. More and more people are getting this every day, and I keep pointing out those who are getting it. How dare you claim I don't want change? What the hell have you ever done?
Yessir! You do indeed point out success stories here. Most of which are happening on the margins, which is where I would expect incremental change to come. But you also point out "success" stories or attempts at change and criticize them for not going far enough or doing it exactly right.
I started reading Techdirt quite a while ago looking for insights that would help me be a better advocate for change. Early on I did find some of that, though gleaning perhaps not quite the exact lessons you would like. But I've found less and less of that, especially over the last year. Most posts these days are snarky, sarcastic musings on how other don't get it. It's become repetitious. And this thread exemplifies that. I thought I could contribute to a discussion, but I see I was wrong.
Oh, and I've done quite a bit, thank you for asking. I'm registered here; you have access to my email address. You could find out who I am with minimal effort. Feel free to email if you'd like the CV. I only use a pseudonym here because I comment here in a personal, not professional capacity.
I completely understand the sense of Mike's point. I just don't agree with it.
You say that a illegal download represents no "loss" only gain, but then you undermine your assertion by only considering one side of the supposed transaction: the user's side. Certainly the user gains something, indeed something for nothing, but there is necessarily a corresponding loss on the other side, that monetary gain by the producer. I am not saying, and have never said, that each illegal download represents a one-to-one loss of a sale, it doesn't.
The amount of the actual loss is impossible to determine, but I feel it fairly safe to say that illegal downloads, especially of music, probably represent somewhere between 30%-35% lost sales. But even if you put the loss of sales at only 10%, each download represents a loss of 10% overall revenue to the producer.
So while it is unfair to say that every illegal download represents a lost sale, it is equally misguided to say that no illegal download represents a lost sale.
Derek, I never said that suing in these instances is the smart thing to do, but merely that it can be valid cause of action. People embark on stupid lawsuits all the time; it's an American pastime. The law is already on the books and has been, in some shape or another, for thousands of years. It's a much better solution than facing each other with pistols at dawn, which used to happen very regularly over much smaller slights.
Invocation of the so-called "Steisand Effect" is overblown. If you make a flat-out statement that I'm a baby-rapist or make a film to that effect, I couldn't care less about your reputation, I'm going to sue the pants off you. Or call you out for pistols at dawn!
No it's not a valid definition of theft by any means. Claiming otherwise does not change that. The very statement "for which one would otherwise be obligated to pay" gives it away. If the obligation is part of it, then it is not an agreed upon transaction.
Of course it's a valid definition; claiming that it's not does not make it so. It may not be a legal definition in all circumstances (though it is in some). At the most basic level, theft is taking something that is not yours without permission. The obligation to pay gives nothing away and the obligation doesn't negate it's part in a transaction in any way. A transaction is an offer and an acceptance of the offer; if part of the offer is the expectation of payment, a transaction is only valid if those terms are agreed to buy the "buyer."
The problem is that "should have paid for." Who decides that? It's totally subjective -- which is why I said he *should* pay for me linking to him. After all, he is benefiting, and it is one side of the parties in the transaction insisting what should be paid for. The analogy stands and is accurate.
Subjective? Not really. If I offer a product--a game, a song--to the market on the terms that to get the product I want you to pay for it, that's not subjective, it's commerce. Yes, he may get some benefit from your linking to him, but there is no transaction here. Indeed the only subjectivity is your theoretical desire to be paid. The analogy stands only as a circus contortionist.
Ah, but there's the problem. Again, you are using the subjective in claiming that there is an "obligation" to pay. I am saying -- quite clearly -- that as the party offering the benefit, that he is obliged to pay me. That's the same thing as Activision saying that anyone who wants to play their game is obliged to pay. The logical flaw remains with him -- and, apparently, you.
Hmmm. Did I read somewhere that you had an MBA? These two situations are completely different. You may offer a benefit with your link and may think you're owed payment, but unless there is a specific, active acceptance of your offer, there is no obligation. Since your link "transaction" is completely one-sided, no obligation. However, Activision is making an explicit offer: if you want to play the game, pay for it. If you don't want to pay, then don't play. However, if you obtain the game and play it, you have actively accepted the offer and have actively created an obligation to pay. If you don't, you've violated the terms under which the transaction was offered. You've taken something that is not yours. In general parlance, that's theft.
Wow. You are really confused. If there is no mutual transaction agreed upon, and I decide to get the product from a third part (another source) who is offering it under better terms, that is not theft. In any sense.
Quite clear headed, Mike. It's still a transaction, assuming you're getting the product from a source that has the right to offer it to you. You can buy from Activision, from a retailer, or any other third-party source and still have a legitimate transaction that is not theft. When you download from the web from unauthorized sources, that's still a transaction, just not a legitimate one. If it makes people feel better about their actions to present self-serving justifications that it's theft in the broad sense, that's just human nature. But it doesn't make it not theft.
And endlessly and rudely -- and totally incorrectly -- calling it theft will change someone's mind?
No, it's important to explain why it's not theft, because when you believe it's theft then it's a moral issue, and most people -- you included, at times -- cannot seem to get past the moral issue that it's theft and thus must be "wrong."
Ah, now to the crux of the issue. And why you seem to miss the point entirely. You can "explain" endlessly that "it's not theft" because it's not a legal definition, it's really civil "infringement," etc., etc.... {zzzzzz}. But what you can't seem to get past, Mike, is that it's not just an economic issue; you continually deprecate any "moral" component but unfortunately, the real world doesn't work like that. Indeed, morally "piracy" is theft and is wrong. It's also illegal.
My entire point is that if you ignore that "moral" component that most people instinctively recognize, you'll never get anyone on the other side "past" it. The whole point is how to get those resistant to change past their indignation...and fear...to embrace change.
From childhood, this "moral" component is nearly bred into us. "Mommy, Tommy stole my toy!" "That bitch Vanessa stole my boyfriend!" "Hey, who stole the last piece of pie?!" It's human nature. Theoretical economics is fine for the graduate school classroom, but the real world doesn't work that way. You can't ignore the "moral" component. Telling the content industries that what they know in their bones to be theft really isn't for all sorts of legalistic reasons defeats your arguments before you can make them.
And we've made that point -- though, without the false claim of it being theft. Perhaps you were on vacation.
No, not on vacation. But quite weary of the litany and the preaching to the choir. You may have tried to make the point, but buy insisting on the claim of theft being false is where you fail. And you are preaching to the choir. Which argument do you think would better reach beyond the choir to the pews? A) You're wrong it's not theft (insert lengthy explanation here), and you need to move past it. Or B) You're right, it's is theft and terribly unfair, but since you can't stop it, you need to move past it. The pews will stop listening to A) at "you're wrong". They'll listen to B.
No, I firmly believe that the first step to getting beyond it is realizing that it's not theft. You *can't* get beyond it if you think it's "terribly unfair." You're always going to make a mistake.
Well, then there's probably no point in attempting a conversation, if that's your firm belief. You're setting yourself a huge hurdle that doesn't need to be there. I know from personal experience that you're wrong; I've seen it in action. It is much more difficult to make your case when your starting point is convincing someone that what they know is true in fact isn't. The only times I've seen the minds of executives in the content industry change is when you acknowledge that what they know to be true is in fact true, but irrelevant.
No, the first step in getting people to see the pocketbooks is to show how it's working and explain why it's not theft at all, but a promotion. If you can't see that, you'll never, ever figure this stuff out.
Well, it's pretty easy when you're sitting on the sidelines, without skin in the game to tell people what they know is true is not. It all sounds so simple, doesn't it. The problem is that it ignores how businesses actually work in the real world. You often lament that you don't understand why executives in the content industries keep pursuing counter-productive strategies toward digital products and snark at them for not "getting it."
This is a good illustration of why you don't understand: you don't understand who they are and how they do what they do and the culture they do it in.
I've figured this stuff out long ago. Coming up with effective strategies for implementing change is the more difficult part, and it starts with changing minds and thereby changing industry culture. You're probably not interested in that.
It's not the underlying message that you get wrong, Mike, it's the tone-deaf delivery and your apparent inability to consider modifying it.
While this may be a stupid suit, it doesn't mean the process of clearing brands, copyrights, and trademarks doesn't have other valid justifications.
One example is that studios often solicit money for use of brands in films. If the films aren't scrutinized for inadvertent use of unauthorized brands, beyond potential trademark and copyright issues, it would diminish the market for selling brand appearances in films.
On the flip side, for example, if in a film a sign promoting Techdirt with Mike's photo on it is easily seen in the background of a scene depicting graphic child rape and murder, you would likely have an excellent case that such use of your trademarked name (assuming for the moment it is trademarked) and your image has caused you damage in the community by associating it with an image of an heinous crime. Beyond trademark and copyright issues (which might be your best course of action) there are violations of rights of privacy, publicity, and the doctrine of "casting in false light" that could be involved.
Yes, according to Mr. Everiss, "benefiting from other people's labour that they should have paid for but haven't" means you are a thief. Everiss' article is about to get traffic from us. He's about to benefit from us linking to his article. He hasn't paid us. I think he should. According to his own reasoning, he is a thief. You might spot the logical flaw in that, and it's the same in Everiss' own argument.
This analogy is wrong on so many levels. Mike, you're usually better than this.
I know that this definition of theft is not the favored one, but it still fits. Benefiting from someone else's labor by acquiring a product for free to which one has no right and for which one would otherwise be obligated to pay is a valid definition of theft. To forestall the usual boring responses, note that it is "a" valid definition of theft, not necessarily a legal definition of theft.
If you link to Mr. Everiss, he owes you absolutely nothing. He didn't reproduce your comments, you linked to him--I assume without asking. By directing readers to his site, he may benefit, but you voluntarily chose to do so. He did not by his own action acquire anything (including readers) from you to which he did not have the right or would otherwise be obligated to pay for. Therefore, he's not a thief. The logical flaw is not his, Mike, it is yours.
It's that because one party believe others should pay for their work, you are to assume that that other party must pay for the work. That's not how transactions work, however. The economy is based on mutually agreeable transactions where one party only pays if they find it worthwhile to pay, and it is the job of the entity trying to make money to give people a reason to buy. Don't give them a reason? Too bad.
Wrong again. Just because one party thinks others should pay for their work has little bearing on a transaction. You are right that transactions are mutually agreed upon. If you like the work (reason to buy), you buy what is offered for sale. If you don't find a compelling reason to buy, then don't buy. That's a transactional relationship.
But that's not what Mr. Everiss is talking about. What he's talking about is a situation where a user has a reason to possess (he/she likes the content), but absent a payment does not have the right to possess (a mutual transaction), and goes ahead to acquire anyway, usually in full knowledge that payment should have been made (theft, in the broad sense).
And, again, in anticipation of the usual self-serving, narrowly and legalistically construed vehement protestations "it's not theft!!": it doesn't matter whether file-sharers think it's theft or not. If it makes you feel better about yourselves, then, fine, convince yourself it's not theft. Your feelings are irrelevant.
And ultimately counterproductive, if instead the goal is to achieve a market where the issue of theft or non-theft is irrelevant. Endlessly and usually rudely telling someone "it's not theft" isn't going to change their mind. The violation sure feels like theft to the person who should have been paid, and insisting that those feelings are simply wrong doesn't make them go away.
A much more productive approach is to acknowledge that it is theft, and get them to look beyond. Yes, it is theft. And yes, it is terribly unfair. If a burglar breaks into your house and steals your TV, it's terribly unfair and you have a justified feeling of violation. But the fact is that you're probably not going to find the thief or recover your TV. It's the same in the digital world, a terribly unfair violation, but the facts are you cannot stop it. At best you can maybe slow it down, make it more difficult, but you will never stop the thievery. Yes, file-sharers may be unrepentant scum, but you can't find and stop even a small fraction of them. Get beyond it.
Those on the content-selling side who are trying to plan for the inevitable future have already gotten beyond it, but they are the minority (and they, too, still consider it theft).
Those who haven't gotten beyond it are not going to hear your argument, "you're wrong, it's not theft, so change your business model to give the thieves easier access to your content and sell them something else." That's like giving your TV to the burglar and trying to convince him to buy the stereo.
But they will be more receptive to the argument, "you're right, it is theft, it's awful, but you can either spend vast sums of money, time, effort, and emotional energy and still not stop it, or you can get the little bastards' money in other ways with different products and services and better promotion and marketing."
And CwF+RtB is really just a fancy term for better marketing and promotion.
That is the first step in getting people to them see not thieves, but pocketbooks.
Yet this is exactly the choice many people are making in the name of "intellectual property."
I don't know of anyone making choices to share or not share "in the name of intellectual property." Those choices are made in the name of commerce.
I think that once information is released to the world (one might say "published"), the creator doesn't have the ability or the right to say what gets done with it. While he may not want to share lifesaving information with the world, could you blame somebody who worked for him for doing the same?
I think this might contain the seeds that undermines the argument. Keeping in mind it's not just a matter of control, but of control in the name of commerce, if the creator doesn't have an incentive (whether moral, economic or both) to release the creation, he just might not want to share it. If the release of that creation by other means (such as an employee) is likely, it would only encourage the creator to be even more secretive.
There are other benefits for all of us. Instead of relying on obsessive secrecy to protect your idea (which is how Coca Cola protect their recipe) patents allow drug companies to safely disclose more information in public, which helps other people innovate. Protecting ideas also allows a smaller company negotiate outside investment and develop their theories.
Now, the article also points to the downside of patents as well, but that doesn't mean that the upside, encouraging the release of creative material by protecting it, should be ignored.
but mixing the two is how you screw things up policy wise.
Once again, I disagree. When it comes to making policy, the two are intertwined.
Certainly you can have a purely economic discussion about intellectual property and a separate purely moral discussion about intellectual property. But taking the discussion beyond the mere academic and attempting to formulate an equitable policy, you have to consider both parts.
Copyright is in essence a moral policy that uses economic and legal mechanisms to further that policy. The basic moral underpinnings of copyright are the promotion of creative efforts for the benefit of society while recognizing the unique nature of intellectual property and the creators' right to benefit as the market allows from his/her creation. The mechanism is the exclusive right to control the dissemination and/or monetary benefits of that creation.
You've said elsewhere that you haven't seen any evidence that copyright hasn't really done much to further creativity, yet the economic incentive is a powerful driver that has allowed us to become incredibly productive and innovative.
Free sharing of content without copyright may increase the economic benefit to society but places additional economic burdens on the content creator to make a livelihood doing other activities than creating. Under copyright, society may be restricted from completely free sharing and what they can do with the content, but it still has the benefit of the content and the ideas conveyed by it while the content creator has a chance to benefit economically from the creation for a limited time.
You know I agree that copyright term has been extended well beyond reason, but it doesn't mean that copyright extends economic benefits to both society and creators...and it does so for moral reasons. Indeed, just making the economic argument for file sharing (that free sharing increases innovation and creativity for the benefit of everyone, without specific concern for payment) makes a moral assumption that this method of encouraging innovation and creativity is "good."
Frankly, trying to separate the two is what screws up the policy making.
I was slightly in error in my previous post about SOC not "breaking" your equipment.
While it won't technically break anything, you won't be able to watch protected VOD programs with older equipment. This is more than just "bending" but would require new equipment to view those channels and programs.
On the post: Can You Fairly Distinguish Commercial vs. Non-Commercial Use In Copyright?
Re: Re: Distinguishing the Ideas and the Expression
But just because some "entities" try to push those boundaries in ways that abuse the system doesn't necessarily mean that the system or the law is broken.
On the post: Copyright Damages Out Of Control: $51 Million For Satellite Cracking App?
Re: Re: A Different Kettle of Fish
And this is specifically a crime under several statutes. Cracking encryption like this is indeed theft of service. Defending copyright infringement as fair use is one thing, but theft of services has long been a criminal matter, not a civil one.
On the post: Can You Fairly Distinguish Commercial vs. Non-Commercial Use In Copyright?
Distinguishing the Ideas and the Expression
A distinction that sometimes gets lost in these debates is that between an idea and the fixed, specific expression of that idea. Once you keep that in mind, it's not all that confusing, though gray areas remain.
If I use your information to make an investment, is that commercial use?
Clearly no. No more so that if you use a bit of information or advice you read in the Wall Street Journal to make an investment is a commercial use of the newspaper. You can use the ideas in a bit of content all you want to guide your investment decisions. Unless of course your investment is to copy the content and sell it without permission.
If I have a blog that uses a bit of your content, but has ads on it, is that commercial use?
Perhaps. But hegemon13 above is on the right track with the idea that ancillary income, incidental to the site, but not the specific content should be a non-commercial use of that content. It shouldn't be difficult to craft a general rule on this. For example, if advertising is embedded in the content, such that the content becomes a specific delivery mechanism for the income-earning ads, that might be a commercial use of the content. If the ads are in a sidebar, non-commercial use of the content.
There are some RSS feeds that declare "not for commercial use!" But, if I put that RSS into my feed reader and read it for work, is that commercial use?
Clearly non-commercial. This is how RSS feeds are used all the time. See the first example above. A better question on RSS feeds would be if you use the RSS to feed a "breaking news" feature on your web site and it's the only content on the site other than ads. That would be a gray area, one that I would tend to consider a commercial use.
Perhaps the lawsuits would establish clear boundaries as well, after a bit of upheaval.... But I think that there will always be new situations that again test the fuzzy border between the two types of use, and drawing any sort of bright line distinction won't really fix very much.
There are always two parts to law: legislation and interpretation and application by the courts. Many posts here point out examples of "silly" lawsuits, but while you may not like lawsuits (except when someone is suing for greater fair use, such as Google v. publishers and authors), they are a fundamental part of determining what law is in the real world.
If legislation were passed (and I agree that this would be a step in the right direction), it is inevitable that there would be lawsuits testing the boundaries of what is allowable under the legislation. It might be messy, it might not be maximally efficient, but then real life is rarely so efficient or clean-cut.
On the post: Copyright Damages Out Of Control: $51 Million For Satellite Cracking App?
Re: Or
Uh...because it's not illegal?
But, please, be my guest. You should also sue Verizon, AT&T, T-Mobile, or any other cell phone or Wi-Fi service provider in your area 'cuz they're beaming radio waves through your house. Don't forget to sue all your local radio and broadcast TV stations, too. You could be rich! (or bankrupt).
On the post: Copyright Damages Out Of Control: $51 Million For Satellite Cracking App?
Re:
On the post: Copyright Damages Out Of Control: $51 Million For Satellite Cracking App?
Re: Why Illegal?
In order to understand whether an act is a crime, you have to know what particular law makes it a crime.
On the post: Copyright Damages Out Of Control: $51 Million For Satellite Cracking App?
A Different Kettle of Fish
Ward was sued under not just the DMCA, but several other statutes. He was providing assistance to others to facilitate unauthorized decryption of a signal. Essentially, this is abetting theft of services, not copying copyrighted content. The DMCA comes in because of the anti-cracking or circumvention clause.
So the damage and loss from potential theft of services may indeed warrant a stiffer penalty. This is not infringement.
Also, the linked article notes: an actual criminal charge relating to the copyright act.
On the post: Kindle Fans Punish Publisher For Delaying Ebook Releases By Giving Books One-Star Reviews
Re: Re: Re: Re: Higher Margins in Printed books?!?!?
On the post: Kindle Fans Punish Publisher For Delaying Ebook Releases By Giving Books One-Star Reviews
Re: Re: Re: Higher Margins in Printed books?!?!?
Generally, Amazon can choose at what price to sell the Kindle version. That may or may not be the price the publisher has put on the Kindle version. If it is the same price, then the publisher's margin is around $7 (less royalty costs, etc.) because Amazon takes their cut in the form of an agreed-up discount in the wholesale price. If the publisher has set the price higher, Amazon must still meet that price (less standard discount), so the publisher may get more and Amazon may be breaking even or taking a loss. I have no idea what Harper's agreement with Amazon is, but since they've priced the e-book at $21.99 (the hardcover is $27.99), if Amazon sells it at $8.61, Harper will get the difference.
You're also a little off in the margin on the hardcover. The gross margin isn't the cover price minus the physical production cost, but the discounted wholesale price less manufacturing cost, and the average discount is at least 40%. So, using your numbers, the gross margin is around $11, not $21.
Given the prices Amazon is selling the book for, I suspect the discounts are higher than 40%.
On the post: Game Marketer Insists That Every Downloaded Copy Of Modern Warfare 2 Is Stolen By Immoral Thieves
Re: Re: Re: Re: Re: Re: Wrong Analogy.
We're not going to agree on everything, but as I think you know from past exchanges, we ultimately are getting to the same or at least similar ends, just by different paths.
I'm not upset that you give your opinion, far from it. But, to be frank, I find it less useful. You are direct; so am I and I tend to respond in the same manner in which I am addressed.
It may be that our spheres of the digital world are too different for agreement. I've been considering and working with these issues for nearly 20 years. Part of my job over those years has been to be the "forward-looking" person and I've been active in bringing these issues (and others) to colleagues both in my company and in my industry. I've used the arguments you suggest to convince people that they need to change not just how they do business, but how they think about the business, but will little success. However, the argument I suggested, which is apparently "wrong," has met with much greater success in changing people's mindsets.
I'm not looking to be "coddled" nor am I "misled." I thought that suggesting a different approach toward advocating change might lead to an interesting discussion and in that I was mistaken. This is not the right forum for it.
On the post: Game Marketer Insists That Every Downloaded Copy Of Modern Warfare 2 Is Stolen By Immoral Thieves
Re: Re: Re: Re: Wrong Analogy.
Gee, Mike, you make my case for me. That's a very effective rhetorical method you've got going. If your intention in all this blogging and commenting is to convince and persuade, it's a brilliant opening gambit to declare "your wrong, end of story." I clearly understand your point, though I disagree with it; but you seem to make no effort to even try to fathom my point. It's just wrong so there's no need to consider it. This is where conversation turns to lecture.
Yup, top of my class at a top 10 school. And it's where they taught me much of this stuff, and my profs still read the site. You wish to take it up with them?
No. I'm sure you did quite well in the academic environment. But I would point out that by all accounts Charles Nesson is considered a brilliant legal scholar and teacher, yet it served him very poorly in the real world of courtroom litigation. Not to belittle your accomplishments, but I have several friends and colleagues with MBA, most from Ivy League schools. Nearly all of them say that beyond the basics of business management, not much of what they learned actually helped them in real-world business. I'm sure others will discount this, but it's my experience.
I'm sorry that you appear not to read the explanations, but I don't just "brush it off." I explain why it doesn't make sense to think of it as theft or a moral issue...How can I fail by being right?
Being "right" on this somewhat esoteric point fails because for many it's unpersuasive. And you do "brush off" other views. Indeed, they are just "wrong." It may not make sense to you to think of the moral issue of "theft" but it makes plenty of sense to others. When they disagree with your "explanations" you simply repeat them as the "right" ones. So, you fail at being persuasive. I know you probably don't see this; more's the shame.
The way you wake people up is to explain to them why their initial thoughts were wrong. It may take some effort, but it gets them to look at the world in different way. If you say their (false) ideas are true, then they never get over that point
Well, you're correct that we've had different experiences. And I'm not surprised it takes some effort, because you again miss the point. You may be able to wake some people up by laborious effort to convince them that they are wrong, but I think you have better success with less effort to acknowledge the problem as it is perceived and convince them that the truth is irrelevant to the solution.
Heh. You say that as if I don't have skin in the game. How the hell do you think I make my living?
You're a consultant. You don't run a recording company, movie studio, or publishing house. You advise, but have no responsibility for the ultimate business decisions made, the results of which may be years down the road. I trust you're a bit more diplomatic with your clients on the phone.
Uh, yeah. Ok. Start paying attention. More and more people are getting this every day, and I keep pointing out those who are getting it. How dare you claim I don't want change? What the hell have you ever done?
Yessir! You do indeed point out success stories here. Most of which are happening on the margins, which is where I would expect incremental change to come. But you also point out "success" stories or attempts at change and criticize them for not going far enough or doing it exactly right.
I started reading Techdirt quite a while ago looking for insights that would help me be a better advocate for change. Early on I did find some of that, though gleaning perhaps not quite the exact lessons you would like. But I've found less and less of that, especially over the last year. Most posts these days are snarky, sarcastic musings on how other don't get it. It's become repetitious. And this thread exemplifies that. I thought I could contribute to a discussion, but I see I was wrong.
Oh, and I've done quite a bit, thank you for asking. I'm registered here; you have access to my email address. You could find out who I am with minimal effort. Feel free to email if you'd like the CV. I only use a pseudonym here because I comment here in a personal, not professional capacity.
Good luck.
On the post: Game Marketer Insists That Every Downloaded Copy Of Modern Warfare 2 Is Stolen By Immoral Thieves
Re: Re: Re: Re: Re: Re: Wrong Analogy.
It's an academic distinction, and one that has only tangential relevance to dealing with the issues in a real-world business.
On the post: Game Marketer Insists That Every Downloaded Copy Of Modern Warfare 2 Is Stolen By Immoral Thieves
Re: Re: Re: Re: Wrong Analogy.
You say that a illegal download represents no "loss" only gain, but then you undermine your assertion by only considering one side of the supposed transaction: the user's side. Certainly the user gains something, indeed something for nothing, but there is necessarily a corresponding loss on the other side, that monetary gain by the producer. I am not saying, and have never said, that each illegal download represents a one-to-one loss of a sale, it doesn't.
The amount of the actual loss is impossible to determine, but I feel it fairly safe to say that illegal downloads, especially of music, probably represent somewhere between 30%-35% lost sales. But even if you put the loss of sales at only 10%, each download represents a loss of 10% overall revenue to the producer.
So while it is unfair to say that every illegal download represents a lost sale, it is equally misguided to say that no illegal download represents a lost sale.
On the post: Billboard Model Sues Filmmakers, Because Her Billboard Appears For 12 Seconds In The Movie
Re: Re: Other considerations
Invocation of the so-called "Steisand Effect" is overblown. If you make a flat-out statement that I'm a baby-rapist or make a film to that effect, I couldn't care less about your reputation, I'm going to sue the pants off you. Or call you out for pistols at dawn!
On the post: Game Marketer Insists That Every Downloaded Copy Of Modern Warfare 2 Is Stolen By Immoral Thieves
Re: Re: Wrong Analogy.
Of course it's a valid definition; claiming that it's not does not make it so. It may not be a legal definition in all circumstances (though it is in some). At the most basic level, theft is taking something that is not yours without permission. The obligation to pay gives nothing away and the obligation doesn't negate it's part in a transaction in any way. A transaction is an offer and an acceptance of the offer; if part of the offer is the expectation of payment, a transaction is only valid if those terms are agreed to buy the "buyer."
The problem is that "should have paid for." Who decides that? It's totally subjective -- which is why I said he *should* pay for me linking to him. After all, he is benefiting, and it is one side of the parties in the transaction insisting what should be paid for. The analogy stands and is accurate.
Subjective? Not really. If I offer a product--a game, a song--to the market on the terms that to get the product I want you to pay for it, that's not subjective, it's commerce. Yes, he may get some benefit from your linking to him, but there is no transaction here. Indeed the only subjectivity is your theoretical desire to be paid. The analogy stands only as a circus contortionist.
Ah, but there's the problem. Again, you are using the subjective in claiming that there is an "obligation" to pay. I am saying -- quite clearly -- that as the party offering the benefit, that he is obliged to pay me. That's the same thing as Activision saying that anyone who wants to play their game is obliged to pay. The logical flaw remains with him -- and, apparently, you.
Hmmm. Did I read somewhere that you had an MBA? These two situations are completely different. You may offer a benefit with your link and may think you're owed payment, but unless there is a specific, active acceptance of your offer, there is no obligation. Since your link "transaction" is completely one-sided, no obligation. However, Activision is making an explicit offer: if you want to play the game, pay for it. If you don't want to pay, then don't play. However, if you obtain the game and play it, you have actively accepted the offer and have actively created an obligation to pay. If you don't, you've violated the terms under which the transaction was offered. You've taken something that is not yours. In general parlance, that's theft.
Wow. You are really confused. If there is no mutual transaction agreed upon, and I decide to get the product from a third part (another source) who is offering it under better terms, that is not theft. In any sense.
Quite clear headed, Mike. It's still a transaction, assuming you're getting the product from a source that has the right to offer it to you. You can buy from Activision, from a retailer, or any other third-party source and still have a legitimate transaction that is not theft. When you download from the web from unauthorized sources, that's still a transaction, just not a legitimate one. If it makes people feel better about their actions to present self-serving justifications that it's theft in the broad sense, that's just human nature. But it doesn't make it not theft.
And endlessly and rudely -- and totally incorrectly -- calling it theft will change someone's mind?
No, it's important to explain why it's not theft, because when you believe it's theft then it's a moral issue, and most people -- you included, at times -- cannot seem to get past the moral issue that it's theft and thus must be "wrong."
Ah, now to the crux of the issue. And why you seem to miss the point entirely. You can "explain" endlessly that "it's not theft" because it's not a legal definition, it's really civil "infringement," etc., etc.... {zzzzzz}. But what you can't seem to get past, Mike, is that it's not just an economic issue; you continually deprecate any "moral" component but unfortunately, the real world doesn't work like that. Indeed, morally "piracy" is theft and is wrong. It's also illegal.
My entire point is that if you ignore that "moral" component that most people instinctively recognize, you'll never get anyone on the other side "past" it. The whole point is how to get those resistant to change past their indignation...and fear...to embrace change.
From childhood, this "moral" component is nearly bred into us. "Mommy, Tommy stole my toy!" "That bitch Vanessa stole my boyfriend!" "Hey, who stole the last piece of pie?!" It's human nature. Theoretical economics is fine for the graduate school classroom, but the real world doesn't work that way. You can't ignore the "moral" component. Telling the content industries that what they know in their bones to be theft really isn't for all sorts of legalistic reasons defeats your arguments before you can make them.
And we've made that point -- though, without the false claim of it being theft. Perhaps you were on vacation.
No, not on vacation. But quite weary of the litany and the preaching to the choir. You may have tried to make the point, but buy insisting on the claim of theft being false is where you fail. And you are preaching to the choir. Which argument do you think would better reach beyond the choir to the pews? A) You're wrong it's not theft (insert lengthy explanation here), and you need to move past it. Or B) You're right, it's is theft and terribly unfair, but since you can't stop it, you need to move past it. The pews will stop listening to A) at "you're wrong". They'll listen to B.
No, I firmly believe that the first step to getting beyond it is realizing that it's not theft. You *can't* get beyond it if you think it's "terribly unfair." You're always going to make a mistake.
Well, then there's probably no point in attempting a conversation, if that's your firm belief. You're setting yourself a huge hurdle that doesn't need to be there. I know from personal experience that you're wrong; I've seen it in action. It is much more difficult to make your case when your starting point is convincing someone that what they know is true in fact isn't. The only times I've seen the minds of executives in the content industry change is when you acknowledge that what they know to be true is in fact true, but irrelevant.
No, the first step in getting people to see the pocketbooks is to show how it's working and explain why it's not theft at all, but a promotion. If you can't see that, you'll never, ever figure this stuff out.
Well, it's pretty easy when you're sitting on the sidelines, without skin in the game to tell people what they know is true is not. It all sounds so simple, doesn't it. The problem is that it ignores how businesses actually work in the real world. You often lament that you don't understand why executives in the content industries keep pursuing counter-productive strategies toward digital products and snark at them for not "getting it."
This is a good illustration of why you don't understand: you don't understand who they are and how they do what they do and the culture they do it in.
I've figured this stuff out long ago. Coming up with effective strategies for implementing change is the more difficult part, and it starts with changing minds and thereby changing industry culture. You're probably not interested in that.
It's not the underlying message that you get wrong, Mike, it's the tone-deaf delivery and your apparent inability to consider modifying it.
On the post: Billboard Model Sues Filmmakers, Because Her Billboard Appears For 12 Seconds In The Movie
Other considerations
One example is that studios often solicit money for use of brands in films. If the films aren't scrutinized for inadvertent use of unauthorized brands, beyond potential trademark and copyright issues, it would diminish the market for selling brand appearances in films.
On the flip side, for example, if in a film a sign promoting Techdirt with Mike's photo on it is easily seen in the background of a scene depicting graphic child rape and murder, you would likely have an excellent case that such use of your trademarked name (assuming for the moment it is trademarked) and your image has caused you damage in the community by associating it with an image of an heinous crime. Beyond trademark and copyright issues (which might be your best course of action) there are violations of rights of privacy, publicity, and the doctrine of "casting in false light" that could be involved.
It's not always so black and white.
On the post: Game Marketer Insists That Every Downloaded Copy Of Modern Warfare 2 Is Stolen By Immoral Thieves
Wrong Analogy.
This analogy is wrong on so many levels. Mike, you're usually better than this.
I know that this definition of theft is not the favored one, but it still fits. Benefiting from someone else's labor by acquiring a product for free to which one has no right and for which one would otherwise be obligated to pay is a valid definition of theft. To forestall the usual boring responses, note that it is "a" valid definition of theft, not necessarily a legal definition of theft.
If you link to Mr. Everiss, he owes you absolutely nothing. He didn't reproduce your comments, you linked to him--I assume without asking. By directing readers to his site, he may benefit, but you voluntarily chose to do so. He did not by his own action acquire anything (including readers) from you to which he did not have the right or would otherwise be obligated to pay for. Therefore, he's not a thief. The logical flaw is not his, Mike, it is yours.
It's that because one party believe others should pay for their work, you are to assume that that other party must pay for the work. That's not how transactions work, however. The economy is based on mutually agreeable transactions where one party only pays if they find it worthwhile to pay, and it is the job of the entity trying to make money to give people a reason to buy. Don't give them a reason? Too bad.
Wrong again. Just because one party thinks others should pay for their work has little bearing on a transaction. You are right that transactions are mutually agreed upon. If you like the work (reason to buy), you buy what is offered for sale. If you don't find a compelling reason to buy, then don't buy. That's a transactional relationship.
But that's not what Mr. Everiss is talking about. What he's talking about is a situation where a user has a reason to possess (he/she likes the content), but absent a payment does not have the right to possess (a mutual transaction), and goes ahead to acquire anyway, usually in full knowledge that payment should have been made (theft, in the broad sense).
And, again, in anticipation of the usual self-serving, narrowly and legalistically construed vehement protestations "it's not theft!!": it doesn't matter whether file-sharers think it's theft or not. If it makes you feel better about yourselves, then, fine, convince yourself it's not theft. Your feelings are irrelevant.
And ultimately counterproductive, if instead the goal is to achieve a market where the issue of theft or non-theft is irrelevant. Endlessly and usually rudely telling someone "it's not theft" isn't going to change their mind. The violation sure feels like theft to the person who should have been paid, and insisting that those feelings are simply wrong doesn't make them go away.
A much more productive approach is to acknowledge that it is theft, and get them to look beyond. Yes, it is theft. And yes, it is terribly unfair. If a burglar breaks into your house and steals your TV, it's terribly unfair and you have a justified feeling of violation. But the fact is that you're probably not going to find the thief or recover your TV. It's the same in the digital world, a terribly unfair violation, but the facts are you cannot stop it. At best you can maybe slow it down, make it more difficult, but you will never stop the thievery. Yes, file-sharers may be unrepentant scum, but you can't find and stop even a small fraction of them. Get beyond it.
Those on the content-selling side who are trying to plan for the inevitable future have already gotten beyond it, but they are the minority (and they, too, still consider it theft).
Those who haven't gotten beyond it are not going to hear your argument, "you're wrong, it's not theft, so change your business model to give the thieves easier access to your content and sell them something else." That's like giving your TV to the burglar and trying to convince him to buy the stereo.
But they will be more receptive to the argument, "you're right, it is theft, it's awful, but you can either spend vast sums of money, time, effort, and emotional energy and still not stop it, or you can get the little bastards' money in other ways with different products and services and better promotion and marketing."
And CwF+RtB is really just a fancy term for better marketing and promotion.
That is the first step in getting people to them see not thieves, but pocketbooks.
On the post: The Moral Argument In Favor Of File Sharing?
Re:
Yet this is exactly the choice many people are making in the name of "intellectual property."
I don't know of anyone making choices to share or not share "in the name of intellectual property." Those choices are made in the name of commerce.
I think that once information is released to the world (one might say "published"), the creator doesn't have the ability or the right to say what gets done with it. While he may not want to share lifesaving information with the world, could you blame somebody who worked for him for doing the same?
I think this might contain the seeds that undermines the argument. Keeping in mind it's not just a matter of control, but of control in the name of commerce, if the creator doesn't have an incentive (whether moral, economic or both) to release the creation, he just might not want to share it. If the release of that creation by other means (such as an employee) is likely, it would only encourage the creator to be even more secretive.
From the article you link to:Now, the article also points to the downside of patents as well, but that doesn't mean that the upside, encouraging the release of creative material by protecting it, should be ignored.
On the post: The Moral Argument In Favor Of File Sharing?
Re: Re: Economics *is* morality
Once again, I disagree. When it comes to making policy, the two are intertwined.
Certainly you can have a purely economic discussion about intellectual property and a separate purely moral discussion about intellectual property. But taking the discussion beyond the mere academic and attempting to formulate an equitable policy, you have to consider both parts.
Copyright is in essence a moral policy that uses economic and legal mechanisms to further that policy. The basic moral underpinnings of copyright are the promotion of creative efforts for the benefit of society while recognizing the unique nature of intellectual property and the creators' right to benefit as the market allows from his/her creation. The mechanism is the exclusive right to control the dissemination and/or monetary benefits of that creation.
You've said elsewhere that you haven't seen any evidence that copyright hasn't really done much to further creativity, yet the economic incentive is a powerful driver that has allowed us to become incredibly productive and innovative.
Free sharing of content without copyright may increase the economic benefit to society but places additional economic burdens on the content creator to make a livelihood doing other activities than creating. Under copyright, society may be restricted from completely free sharing and what they can do with the content, but it still has the benefit of the content and the ideas conveyed by it while the content creator has a chance to benefit economically from the creation for a limited time.
You know I agree that copyright term has been extended well beyond reason, but it doesn't mean that copyright extends economic benefits to both society and creators...and it does so for moral reasons. Indeed, just making the economic argument for file sharing (that free sharing increases innovation and creativity for the benefit of everyone, without specific concern for payment) makes a moral assumption that this method of encouraging innovation and creativity is "good."
Frankly, trying to separate the two is what screws up the policy making.
On the post: FCC Poised To Let Hollywood Break Your TV And DVR
Correcting Myself
While it won't technically break anything, you won't be able to watch protected VOD programs with older equipment. This is more than just "bending" but would require new equipment to view those channels and programs.
I stand corrected.
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