It would be relatively simple for a regulator to bar consumer-harming blackouts during negotiations
The blackouts are the symptom -- the negotiation is the problem.
Rights holders always over-value content. Corporations value control over consumer satisfaction, because they see control as the ability to exploit (frequently imagined) advantage.
Negotiation for creative works that have already been created and released, or that will be created and released in some other venue regardless of the outcome of the negotiations, is foolish. We need a vast expansion of the compulsory license concept (and a significant shortening of copyright terms) to make this system rational.
We have a prototype: the copyright holders of a song have the right to determine who releases the first recording of that song, but afterward anyone can cover it without permission or negotiation. Royalties are calculated by a formula; no one can hold a song hostage against simple performance by another artist.
Similarly, once something is released for home viewing in any form (broadcast, streaming, disc, whatever), there should be a strict time limit — say, six months — after which any service can deliver that same content subject to a royalty that is determined without permission or negotiation.
Then we could move on to open APIs and compulsory federation for user-generated content platforms and social media...
And that's the sort of nonsense that should stop. In the end, it only benefits the lawyers. If copyright can't expire after a reasonable length of time, at least every ordinary use ought to be covered by a compulsory license once a short window of exclusivity has elapsed.
The idea that songs licensed for use in a program in one format can't be used when that program is changed to another format without re-negotiating the license — which experience shows is often impractical once the music has gained value by being associated with the very work that needs to re-license it — is an absurdity that should have been squashed from the start.
Since the entire entertainment industry appears to be too greedy and competitive to come to any reasonable agreements on their own... it looks like we need the heavy hand of government to save us from never-ending aggravation, and the studios from themselves.
Step 1: A federal law is passed defining the basic contours of the compulsory license for published audio+video works, establishing a deadline by which time it becomes effective and assigning policy and enforcement to the care of some new or existing agency.
Step 2: Hollywood and others spend most of the time until the deadline telling everyone what a disaster this will be and suing to have it overturned.
Step 3: Hollywood and others realize they're stuck with it and work out the details with said agency because otherwise, they'd have no say at all.
Step 4: We all find out whether it really works or not.
There is an obvious solution with solid historical precedent; unfortunately, probably everyone in the business hates the idea.
Just as any radio station can play any musical recording that has been published as an LP or a CD, a sensible compulsory license could assure that any streaming service could stream any program ever released as a DVD or Blu-Ray, broadcast on any over-the-air or cable station, or distributed on any other streaming channel, without prior agreement or negotiation, by paying appropriate, pre-defined royalties to the copyright holders (probably through some intermediary roughly corresponding to ASCAP/BMI for music).
Give them a reasonable release window—say, six months—during which the publisher has the right to license the work exclusively to selected channels and services; after that, it's open to any properly licensed service to stream.
Then content producers could focus on producing content people want to watch, streaming services could focus on making whatever their customers want to see available to them as conveniently and cost-effectively as possible, and we could focus on what want to watch rather than the hoops through which we are expected to jump to watch it.
Isn't the whole point of 42 U.S. Code § 1983 that when an individual acts "under color of" law to deprive a person of their rights unlawfully, that individual can be sued?
The city/state surely didn't authorize the officers to seize property and then keep it for themselves instead of turning it over to the department.
The argument seems to be that it wasn't theft because the officers had a right to take the property based on the warrant; hence it becomes a violation of due process rather than a theft. That's plausible, I suppose; but it defies logic to say that the city/state, and not the officers in question, are responsible for those officers' failure to adhere to what is surely a clear department policy.
But, if that's the case... is all this a setup, then, to demonstrate that a suit against the city/state is valid?
The fourteenth amendment is relevant because of the due process clause:
"nor shall any State deprive any person of life, liberty, or property, without due process of law"
Because there are indeed people who exist that just wish that everything was on Netflix, people who want their "one-stop shop" for everything.
That would include me.
Those people need to understand that robust competition and the money being put into the development of tons of different exclusives is important, while people at the other far end, who think that hyper-fragmentation doesn't matter, need to understand that a bajillion different services kills the convenience factor of streaming.
I’m not convinced that this sort of “vertical integration” — streaming platforms becoming producers of the content they stream — does much for content production. I can see how it gives a streaming platform a temporary competitive edge.
It seems to me we’d all be better off if content producers concentrate on producing worthwhile content and streaming providers concentrate on providing a cost-effective, high-quality customer experience independent of what is being streamed. If it were up to me, all content ever once made public in video form would be available on all streaming platforms; the platforms would compete over how well they do their job (making it easy for their customers to watch what they want to see, when and where they want to see it, at a price that feels fair) and the producers would compete over how well they do theirs (selecting worthwhile creative projects and matching them to appropriate funding). I don’t see how anyone is helped by competition over how clever one group is at locking up the work of the other.
As I suggested in another comment, a reasonable half-way step that’s consistent with existing copyright practice would be to establish compulsory licensing so that once content is streamed it can only remain exclusive to a specific streaming service for a limited period of time.
There is a solution to this which already has precedent in copyright law: compulsory licensing.
Music radio was only possible because a compulsory license meant once a recording of a song had been released to the public, radio stations didn’t have to clear the rights to play it.
The writers of a song decide who gets to make the first recording of it; after that, they get an established royalty for covers, but they can’t stop anyone else from recording it.
So there is at least one consumer-friendly way to do this that’s consistent with established practice in copyright. The owners of a movie or series can decide who gets to broadcast and stream it first, and they can negotiate what they get paid for that right. After some established period of time -- perhaps six months, perhaps a year -- they can no longer stop any other service from broadcasting or streaming it, and they get paid an established royalty -- refusal isn’t possible and negotiation isn’t required.
Enormous licensing sums, restricting access to catalogs, and confusingly granting and pulling access to certain films and shows has been par for the course. Despite all of that, the demand from the public is clear: more streaming, more access, more movies.
That is, we’ve demonstrated that they can treat us like shit... we’ll still give them money.
My thought as well. If there is a way to do it without running afoul of the law, a community group in the affected area could set up a way of easily making donations that can be clearly counted to show that the community is willing to pay enough to maintain the service, even when they aren’t forced to do so.
Wouldn’t that be a kick in the teeth to TWC and friends.
If it’s that subtle, then it’s not a very big problem.
The big problems (in my opinion) are when information is taken from one context and used in an entirely different one. When your old Facebook posts get scrutinized by an employer. When email you sent to your girlfriend winds up in the hands of your vice principal. When the government is pasting together the history of calls to and from your cellphone and drawing conclusions.
If Google manipulates search results, I can compensate, or stop using them. If Facebook starts promoting some posts and burying others based on a political agenda, I can compensate, or stop using them. If I want to be confident they’re not subtly skewing my perception of reality... I have to do the same thing I have to do anyway, use multiple sources of information and think for myself. Every source of information subtly skews your perception of reality, whether or not they’re explicity paid to do so.
“I want a guarantee -- with physics and mathematics, not with laws -- that we can give ourselves things like real privacy of personal communications.” — John Gilmore, March 28, 1991
From the same talk:
We also need real control of identification. We need the option to be anonymous while exercising all of these other rights. So that even with our photos, our fingerprints and our DNA profile, they can't link our communication and trade and financial activities to our individual person.
Now I'm not talking about lack of accountability here, at all. We must be accountable to the people we communicate with. We must be accountable to the people we trade with. And the technology must be built to enforce that. But we must not be accountable to THE PUBLIC for who we talk to, or who we buy and sell from.
Gilmore had the right idea, 25 years ago. The keys to privacy are strong encryption and accountable anonymity. We have the encryption, but it’s still not automatic, so that even non-geeks and people who don’t realize they need it (until it’s too late) would be using it. Aside from Bitcoin, I don’t see much progress at all on accountable anonymity.
This strikes me as a solution in search of a problem.
Google Maps shouldn't recommend a drive past an IHOP as the "best route" on your way to a meeting from an airport simply because IHOP gave it $20.
People will switch from Google to another map provider if it starts making recommendations that are not best for its users.
Outside of government snooping and tinfoil hat scenarios, what privacy (as opposed to security) breaches of practical concern would be addressed by this “grand bargain”?
Do I really care if a few advertisers learn more about me? I’ll ignore them (or ad-block them) just the same either way.
The entities that really might use my information against me probably wouldn’t be bound by the “grand bargain” anyway. Even if they were, the notion of “against our interests” is far too vague. Fiduciaries under current law have rights and responsibilities derived from a long history of tradition and litigation. To what custom would we refer to determine the standards these new “information fiduciaries” are expected to meet?
I would say, for example, that employers should not be able to use information from web or social media searches in hiring or promotion decisions except under limited circumstances and with the applicant’s voluntary, unprompted consent. (That is, if you think your Facebook record is a plus, you can offer it for consideration; but they can’t look it up if you don’t offer, and not offering can’t be used against you.) The logic of this is that freedom of expression is a fundamental right, and shouldn’t be constrained by fears that a future employer might judge you for expressions that occurred outside the workplace.
I don’t see how the “grand bargain” would do anything about that or similar problems. These would have to be addressed by specific laws covering specific situations in which potential users of information must respect our privacy.
Restraints on government snooping don’t belong in a “grand bargain” with information repositories; they should apply to the government, always, regardless of the information source.
As for security... Best practices in security evolve constantly. If it’s not already this way, a law that specifies or clarifies that in lawsuits, information retainers should generally be assumed to have exercised reasonable and prudent care if their systems are current with accepted best practices in security, and to have failed to exercise reasonable and prudent care if they are not, would seem to be all that’s needed to put liability in the correct place.
The other major security fix, of course, would be to once and for all figure out how to make end-to-end encryption for all one-to-one (or one to any explicitly enumerated list) communication simple, convenient and automatic for everyone, even people who don’t understand what it is or why they might need it. If I send email to my friend, only she should be able to read it, even though she has no idea what encryption is—she just thinks her email account has a password, like it always did. If I send a private message on Facebook, only the recipient should be able to read it—Facebook should have no way of knowing what it said. When Bobby sends Sally a dick pic... you get the idea. The challenge is how to retrofit this so it “just works” without people having to change the way they use familiar services.
There is room for argument. It is hardly obvious that this is fair.
However, the court’s decision doesn’t say that it is fair. It says that it is not so obviously and fundamentally unfair that it would be proper to override the decisions of democratically-elected municipal governments acting on behalf of the citizens of Milwaukee and Chicago. Neither has it said that those cities cannot implement regulations that create greater parity between novel and traditional providers, if they can be convinced to do so.
All this says is that the fairness argument has to be made to the people of these cities, and their representatives; the decision lies with them, not the courts.
These cab companies made a strategic error. They simply need to incorporate in a suitable other nation; then they can bring an Investor State Dispute Settlement complaint for deprivation of profits.
Negligence
At what point does calling the police become the de facto equivalent of willful and/or criminal negligence?
I mean, you can't hand a loaded gun to a four-year-old and expect to bear no responsibility for the consequences...
The negotiation is the problem
The blackouts are the symptom -- the negotiation is the problem.
Rights holders always over-value content. Corporations value control over consumer satisfaction, because they see control as the ability to exploit (frequently imagined) advantage.
Negotiation for creative works that have already been created and released, or that will be created and released in some other venue regardless of the outcome of the negotiations, is foolish. We need a vast expansion of the compulsory license concept (and a significant shortening of copyright terms) to make this system rational.
Perhaps a bit literal...
Perhaps a bit literal as a demonstration of the "moron in a hurry" test... but here we have it.
Re: Compulsory licensing
Yes, I think so.
We have a prototype: the copyright holders of a song have the right to determine who releases the first recording of that song, but afterward anyone can cover it without permission or negotiation. Royalties are calculated by a formula; no one can hold a song hostage against simple performance by another artist.
Similarly, once something is released for home viewing in any form (broadcast, streaming, disc, whatever), there should be a strict time limit — say, six months — after which any service can deliver that same content subject to a royalty that is determined without permission or negotiation.
Then we could move on to open APIs and compulsory federation for user-generated content platforms and social media...
Re: Re: Re: An obvious solution
And that's the sort of nonsense that should stop. In the end, it only benefits the lawyers. If copyright can't expire after a reasonable length of time, at least every ordinary use ought to be covered by a compulsory license once a short window of exclusivity has elapsed.
The idea that songs licensed for use in a program in one format can't be used when that program is changed to another format without re-negotiating the license — which experience shows is often impractical once the music has gained value by being associated with the very work that needs to re-license it — is an absurdity that should have been squashed from the start.
Since the entire entertainment industry appears to be too greedy and competitive to come to any reasonable agreements on their own... it looks like we need the heavy hand of government to save us from never-ending aggravation, and the studios from themselves.
Re: Re: An obvious solution
Step 1: A federal law is passed defining the basic contours of the compulsory license for published audio+video works, establishing a deadline by which time it becomes effective and assigning policy and enforcement to the care of some new or existing agency.
Step 2: Hollywood and others spend most of the time until the deadline telling everyone what a disaster this will be and suing to have it overturned.
Step 3: Hollywood and others realize they're stuck with it and work out the details with said agency because otherwise, they'd have no say at all.
Step 4: We all find out whether it really works or not.
An obvious solution
There is an obvious solution with solid historical precedent; unfortunately, probably everyone in the business hates the idea.
Just as any radio station can play any musical recording that has been published as an LP or a CD, a sensible compulsory license could assure that any streaming service could stream any program ever released as a DVD or Blu-Ray, broadcast on any over-the-air or cable station, or distributed on any other streaming channel, without prior agreement or negotiation, by paying appropriate, pre-defined royalties to the copyright holders (probably through some intermediary roughly corresponding to ASCAP/BMI for music).
Give them a reasonable release window—say, six months—during which the publisher has the right to license the work exclusively to selected channels and services; after that, it's open to any properly licensed service to stream.
Then content producers could focus on producing content people want to watch, streaming services could focus on making whatever their customers want to see available to them as conveniently and cost-effectively as possible, and we could focus on what want to watch rather than the hoops through which we are expected to jump to watch it.
Re: Re: Re: Where did that come from?
Yet how can that be?
Isn't the whole point of 42 U.S. Code § 1983 that when an individual acts "under color of" law to deprive a person of their rights unlawfully, that individual can be sued?
The city/state surely didn't authorize the officers to seize property and then keep it for themselves instead of turning it over to the department.
The argument seems to be that it wasn't theft because the officers had a right to take the property based on the warrant; hence it becomes a violation of due process rather than a theft. That's plausible, I suppose; but it defies logic to say that the city/state, and not the officers in question, are responsible for those officers' failure to adhere to what is surely a clear department policy.
But, if that's the case... is all this a setup, then, to demonstrate that a suit against the city/state is valid?
Re: Where did that come from?
Re:
That would include me.
I’m not convinced that this sort of “vertical integration” — streaming platforms becoming producers of the content they stream — does much for content production. I can see how it gives a streaming platform a temporary competitive edge.
It seems to me we’d all be better off if content producers concentrate on producing worthwhile content and streaming providers concentrate on providing a cost-effective, high-quality customer experience independent of what is being streamed. If it were up to me, all content ever once made public in video form would be available on all streaming platforms; the platforms would compete over how well they do their job (making it easy for their customers to watch what they want to see, when and where they want to see it, at a price that feels fair) and the producers would compete over how well they do theirs (selecting worthwhile creative projects and matching them to appropriate funding). I don’t see how anyone is helped by competition over how clever one group is at locking up the work of the other.
As I suggested in another comment, a reasonable half-way step that’s consistent with existing copyright practice would be to establish compulsory licensing so that once content is streamed it can only remain exclusive to a specific streaming service for a limited period of time.
Compulsory license
Music radio was only possible because a compulsory license meant once a recording of a song had been released to the public, radio stations didn’t have to clear the rights to play it.
The writers of a song decide who gets to make the first recording of it; after that, they get an established royalty for covers, but they can’t stop anyone else from recording it.
So there is at least one consumer-friendly way to do this that’s consistent with established practice in copyright. The owners of a movie or series can decide who gets to broadcast and stream it first, and they can negotiate what they get paid for that right. After some established period of time -- perhaps six months, perhaps a year -- they can no longer stop any other service from broadcasting or streaming it, and they get paid an established royalty -- refusal isn’t possible and negotiation isn’t required.
So the lesson is...
That is, we’ve demonstrated that they can treat us like shit... we’ll still give them money.
Why should they change?
Green Party
According to the article, this action is being driven by Austria’s Green party, which Wikipedia says “is a member of the European Green Party and Global Greens.”
The Austrian Greens will, I suppose, listen to their Austrian supporters; the other two organizations should denounce this action immediately.
If Green Parties condone this sort of thing—and I think, and hope, they do not—goodbye, Greens.
Listening systems
Would that be your systems for listening to your users, or for listening in on your users?
Re: If you live in that area...
Wouldn’t that be a kick in the teeth to TWC and friends.
Re: Re: Dubious solution to the wrong problems
If it’s that subtle, then it’s not a very big problem.
The big problems (in my opinion) are when information is taken from one context and used in an entirely different one. When your old Facebook posts get scrutinized by an employer. When email you sent to your girlfriend winds up in the hands of your vice principal. When the government is pasting together the history of calls to and from your cellphone and drawing conclusions.
If Google manipulates search results, I can compensate, or stop using them. If Facebook starts promoting some posts and burying others based on a political agenda, I can compensate, or stop using them. If I want to be confident they’re not subtly skewing my perception of reality... I have to do the same thing I have to do anyway, use multiple sources of information and think for myself. Every source of information subtly skews your perception of reality, whether or not they’re explicity paid to do so.
John Gilmore, 25 years ago
“I want a guarantee -- with physics and mathematics, not with laws -- that we can give ourselves things like real privacy of personal communications.” — John Gilmore, March 28, 1991
From the same talk:
We also need real control of identification. We need the option to be anonymous while exercising all of these other rights. So that even with our photos, our fingerprints and our DNA profile, they can't link our communication and trade and financial activities to our individual person.
Now I'm not talking about lack of accountability here, at all. We must be accountable to the people we communicate with. We must be accountable to the people we trade with. And the technology must be built to enforce that. But we must not be accountable to THE PUBLIC for who we talk to, or who we buy and sell from.
Gilmore had the right idea, 25 years ago. The keys to privacy are strong encryption and accountable anonymity. We have the encryption, but it’s still not automatic, so that even non-geeks and people who don’t realize they need it (until it’s too late) would be using it. Aside from Bitcoin, I don’t see much progress at all on accountable anonymity.
Dubious solution to the wrong problems
This strikes me as a solution in search of a problem.
Google Maps shouldn't recommend a drive past an IHOP as the "best route" on your way to a meeting from an airport simply because IHOP gave it $20.
People will switch from Google to another map provider if it starts making recommendations that are not best for its users.
Outside of government snooping and tinfoil hat scenarios, what privacy (as opposed to security) breaches of practical concern would be addressed by this “grand bargain”?
Do I really care if a few advertisers learn more about me? I’ll ignore them (or ad-block them) just the same either way.
The entities that really might use my information against me probably wouldn’t be bound by the “grand bargain” anyway. Even if they were, the notion of “against our interests” is far too vague. Fiduciaries under current law have rights and responsibilities derived from a long history of tradition and litigation. To what custom would we refer to determine the standards these new “information fiduciaries” are expected to meet?
I would say, for example, that employers should not be able to use information from web or social media searches in hiring or promotion decisions except under limited circumstances and with the applicant’s voluntary, unprompted consent. (That is, if you think your Facebook record is a plus, you can offer it for consideration; but they can’t look it up if you don’t offer, and not offering can’t be used against you.) The logic of this is that freedom of expression is a fundamental right, and shouldn’t be constrained by fears that a future employer might judge you for expressions that occurred outside the workplace.
I don’t see how the “grand bargain” would do anything about that or similar problems. These would have to be addressed by specific laws covering specific situations in which potential users of information must respect our privacy.
Restraints on government snooping don’t belong in a “grand bargain” with information repositories; they should apply to the government, always, regardless of the information source.
As for security... Best practices in security evolve constantly. If it’s not already this way, a law that specifies or clarifies that in lawsuits, information retainers should generally be assumed to have exercised reasonable and prudent care if their systems are current with accepted best practices in security, and to have failed to exercise reasonable and prudent care if they are not, would seem to be all that’s needed to put liability in the correct place.
The other major security fix, of course, would be to once and for all figure out how to make end-to-end encryption for all one-to-one (or one to any explicitly enumerated list) communication simple, convenient and automatic for everyone, even people who don’t understand what it is or why they might need it. If I send email to my friend, only she should be able to read it, even though she has no idea what encryption is—she just thinks her email account has a password, like it always did. If I send a private message on Facebook, only the recipient should be able to read it—Facebook should have no way of knowing what it said. When Bobby sends Sally a dick pic... you get the idea. The challenge is how to retrofit this so it “just works” without people having to change the way they use familiar services.
The people, not the courts
However, the court’s decision doesn’t say that it is fair. It says that it is not so obviously and fundamentally unfair that it would be proper to override the decisions of democratically-elected municipal governments acting on behalf of the citizens of Milwaukee and Chicago. Neither has it said that those cities cannot implement regulations that create greater parity between novel and traditional providers, if they can be convinced to do so.
All this says is that the fairness argument has to be made to the people of these cities, and their representatives; the decision lies with them, not the courts.
Strategic error
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