The Justin Bieber argument does suffer from this critical weakness. I find the kid to be incredibly talented and charismatic, and his music to be detestable. I can imagine other folks with stronger opinions thinking maybe locking him up wouldn't have been all bad.
To those folks, I think the argument needs to change, if only slightly. The value of Bieber's early video was in letting a talented kid gain exposure by covering his favorite songs. Now that he is ubiquitous, wouldn't it be great if someone _else_ could gain the public focus and edge him out?
Wow! Cleland says that a whopping 24% of internet traffic is piracy. Assume that Bittorrent is used exclusively for piracy (~17% of overall traffic usage). The top 10 individual uses of traffic account for 83% of it. Incidentally, SMTP did not make it into the top 10, neither did DDOS packets. Together, those represent nearly 5%. So Cleland must be arguing that over half of all use outside of the top 10 non-mail users is piracy. This is stupid.
SO that everyone those initial movie-goers know WON'T HAVE TO pay to see it? -- And you're SURPRISED that's not adopted?
Not surprised. Disappointed, but not surprised. The study (and Masnick's spin on it) suggests that the studios could make MORE money simply by doing what they are now doing but faster. Release in theaters, then release on DVD, but without the long lag in between. The issue appears to be that the studios have (wrongly) assumed that you need to have a long lag that discourages people from waiting for the DVD in order to drive up theatrical views. The study figured out that this is wrong - even without the lag, people who did not see the movie in the theater likely would not have seen it in the theater even if they thought that was their only opportunity to ever see it.
The studios could sell the DVD at the concession stand in the theater. No ticket, no DVD. They could only sell the DVD prior to a certain date to people holding a ticket saying they had watched the movie, or as Mike suggests offer a discount to ticket-holders. They could do all manner of things other than stick their collective head in the sand and wish the world had not moved on.
Copyright exists because content can't be locked up any other way.
It is neither necessary nor desirable to lock up content, and in any event there most certainly are other ways to do it (for instance, never publishing it). I believe what you meant to say was that the studios have not figured out a way to make money without a monopoly on their content, and given the availability of copyright they are unlikely to do so. With that, I agree wholeheartedly. I think Mike's overall point is that that fact is a terrible shame.
With due respect, isn't this the statistical support the maximalists have lacked for so long about the economic harm of infringement? The study says studios are losing 1.8% per week on DVD sales due, at least in part, to the availability of infringing digital versions of the content.
As represented in the article, the study does not suss out how much of the 1.8% is due to downloads and how much is due to loss of interest. But this at least provides _some_ basis for the claims of serious economic loss.
I do understand the point of the study - it doesn't matter how much harm can be traced to infringement, the fact is the infringement will occur. Thus, studios can either come to terms with that and fix their practices to deal with it, or keep running headlong into walls with their eyes closed.
Mike is talking about economics, which is a study of human behavior (not motivation). Economics is really, really bad at deciding what is "right". It is not a normative science. It helps you predict how people will react to various changes in their incentives, but it cannot tell if those reactions are "good" or "bad".
Rosen is, ultimately, talking about law. Morality has even less purchase there. While I disagree that copyright infringement is "theft" (it plainly isn't), it is presently illegal. She is absolutely right about that. Those of us who believe in the rule of law should not knowingly or willingly break it, unless we must. I am not so creative as to conceive a circumstance where serious injury to body or property could only be prevented by downloading a DVD rip of Avatar. Thus, I do not do it.
As to the morality of copyright infringement - it must be noted that copyright itself is a new-ish concept, and for much of its life it referred to the right of sovereign governments to censor critical writing. Copyright as a monopoly on a particular expression did not exist until shortly before the US Constitution was drafted. Copyright on sound recordings did not exist in the US until the early 70s. The concept of there being a right to infringe is brand new, so the idea that it might be immoral to infringe it is also very recent. I believe that it is likely the result of a very successful PR campaign by the best PR engineers in the world, with whom Rosen used to work.
In the abstract, it is strange to conceive that it would be immoral to undermine a monopolist's advantage in order to inject competition into the marketplace, increasing the incentives to improve quality and reduce prices, even if illegal to do so. One rarely hears of the noble monopolist, beset by evil competitive forces but upholding the principles of price discrimination and profit maximization in an unfriendly marketplace.
Copyright inheres immediately in Bern Convention countries and the U.S., regardless of registration. At least if he had been in the U.S., the cameraphone operator would own the copyright to the image (and video) he took. The AFP copyright would cover only the creative, separately copyrightable elements in the derivative work - the photograph of the screenshot. If Mike went back to the same smartphone and took a photograph of its screen, he would not infringe the AFP copyright.
But... what if someone were to edit the image without touching any of the creative elements AFP introduced? That would not infringe AFP's copyright.
I think you have it. The rule does not leave this to the trial court's arbitrary and capricious discretion, unbounded by reason. Instead, a test has been established that must be followed (even if that is real, real hard to do). The test itself is not unconstrained - the judge cannot decide that a factor cuts one way or another without considering evidence (which may not have to be admissible, but should be weighed and its credibility ruled upon).
Here, the judge properly indicated that the royalty rate should be .75%. Then he went about trying to decide whether and how much to enhance based on willfullness. According to Read Corp., a finding of willfullness does not mandate a damage enhancement, although it does permit one. Read goes on to say that the trial court must consider factors, including both aggravating and mitigating factors, and lists nine. Among them is one that would appear to be simple to apply here - the financial condition of the willful infringer, and particularly whether the enhancement would prejudice its non-infringing activity (which is not permissible).
The Federal Circuit requires that the trial court explain its consideration of the factors and how it arrived at the amount. To the degree the trial court did so here, its explanation was left wanting.
In any event, the fundamental problem here is probably not with the court's articulation of legal principles. The problem is that the only evidence considered was an irrelevant comment made outside of court. InnoLux's CEO thinks patent law is bad, or often misapplied. So WHAT?! What does that have to do with whether television and monitor sales include Mondis's patented inventions?
That's fair. I had not intended this for publication, or I would have been more careful both with that and with my simplification of the procedural posture. The underlying point remains valid - the court is constrained by the First Amendment even though it is not Congress, in part because it has no independent law-making authority.
Mondis moved for supplemental damages. Ward enhanced on the basis that the CEO's statement that patent infringement is taken too seriously indicated a lack of respect for the court and the jury's verdict.
On your read, he enhanced on the basis that saying infringement is taken too seriously indicates that any ongoing infringement would be willful. Of course, after a verdict of willful infringement has been rendered (even if judgment was rendered notwithstanding that verdict), no further evidence of that is necessary (indeed, in the Fifth Circuit, willfulness is assumed as to any ongoing infringement after a verdict). The judge had set a rate of .75% for ongoing willful infringement based on the relevant evidence he had heard. He then enhanced that rate to 1.5% based on the comment. This was not because the infringement would be willful - that had already been decided. It was because the judge did not like the comment.
Taking it apart even more - the judge agreed, as did the parties, that there was a 9-factor analysis that should be applied to determine whether, and how much, to enhance rates for ongoing willful infringement. The judge then ignored 7 of those factors because he did not see how to apply them. He did not, for instance, consider InnoLux's post-verdict financial condition, remedial action, or motivation for harm (despite acknowledging elsewhere that InnoLux was not a competitor of Mondis, and therefore presumably had no motivation to undermine Mondis's (nonexistent) market share). Instead, he stated that the "paramount determination is the egregiousness of InnoLux's conduct." This statement finds no basis in the cited caselaw and does not appear in statute. But assuming its truth, the judge then based a 2x enhancement for willfulness NOT on the egregiousness of the infringement (which could after all be subtle, open, and necessary,) but instead on an out-of-court statement made in another country. That was the sole evidence cited by the judge. The judge assessed the doubling because of the egregiousness of an attitude, not the egregiousness of conduct. But the government is not supposed to dictate our attitudes - we get to decide what happens in our heads and hearts, and what comes out of our mouths. It only gets to penalize us for what we do.
There was no "settlement". This was a damage judgment, and it was not intended to be punitive. When the state needs to punish people, it has to do things like prove their guilt beyond a reasonable doubt, and pass a law permitting the punishment, and stuff.
There can be exemplary damages - that is, damages intended to communicate to the offender and the world that the prohibited behavior will not be tolerated. They are generally permissible only upon a showing not just of willfulness, but of egregious misconduct. In any event, judges are not supposed to make an example out of someone for disagreeing with them. The CEO's statements out-of-court were irrelevent to the damage determination.
Bottom line - Ward did not indicate a legal basis for the enhanced award, and instead based it on his desire to suppress certain speech based on its content. That is a no-no.
Agreed. It just makes sense to have two laws. The law for the copyright advocates should make accidental infringement criminal, and it should be a capital offense.
Generally, I agree with the moral outrage and the tone, tenor, and message of this article. But this quote gives me heartburn:
"Good and honest police officers (of which there are many) should support such things. If they're doing their job within the confines of the law, they should be happy to be filmed or photographed."
Logic very like this has been used to deprive people of their privacy for decades. These images and film segments can and will be used improperly, and even good, honest cops doing their job legally should be concerned about it. That does not mean they should not support the right of people to film their arrest, or that it should be illegal. But cops should not be naive, either. The point is not that cops have nothing to fear, but that the right of the people to be free from brutality and abuses of authority is worth the tradeoff.
It is OK to summon the police whenever anyone feels offended. That is not a bad thing to do. It beats the hell out of beating the hell out of the offender. That the officious nincompoop was acting officious is not the problem here. The wiretapping law and the obviously improper invocation of it is a problem.
Publicity rights are well-litigated and statutory in California. Surprisingly to me, despite the fact that they must see hundreds every week, judges in California still get starstruck by celebrities, and give them great leeway in some matters. So a friendly forum with good law.
Those are all last mile infrastructural changes. Admittedly, they have led to increased congestion at the local level. But is have their been substantial capital improvements in backbone in the last decade? Two decades? Three? (I ask because you seem knowledgeable and I honestly do not know the answer, not to spark a debate).
I did network stuff for a regional ISP during the modem->digital transition (you left ISDN off the list!). We certainly had a capital improvement budget that was reflected in our prices. But we were also charged more each month from our upstream as bandwidth utilization increased. We paid a subscription cost for OC3s and eventually OC12s, and we also paid an incremental cost for our use of them. Where did the marginal cost come from that justified that incremental expense? It sure felt at the time like a monopolistic rent that manifested itself as differential pricing.
*boggle*
OP is right, if the world is as he believes it to be then Mike has an issue because of his choice of terminology.
Mike offered $1k if two idiots will swap their "bandwidth bills" with Netflix. Netflix's "bandwidth bill" may be less than $1k (I doubt it, but it could happen) if it is not actually hosting its content. Admittedly, its CDS bill is certainly much much higher, and the CDS company's bandwidth bill is likely very high.
Michial's point here appears to be that, as a taunt, this was not carefully worded. He is right. I don't think that changes its quality as a snarky taunt: public opinion is unlikely to support Sununu and Ford if they accepted the offer and then insisted on a silly loophole. But he is not wrong that the loophole exists.
Loser pays, the so-called "English Rule," does not work. We have it in Alaska. It does not discourage frivolous filings, and strongly encourages settlement of spurious claims. The trouble is that many plaintiffs (including many trolls) cannot pay. So you can get a piece of paper giving you the right to bleed a stone, but it will have no practical benefit. And wealthy plaintiffs with the cash to push a case to its conclusion view the attorney fee judgment against them as a cost of doing business. It does little to modify their conduct.
* NOTE - This does not mean the English Rule is bad, or that it should be abolished. In the small group of cases where the plaintiff is somewhere between impecunious and wealthy, it may have some effect. And in any event, it decreases the pain for some litigants some of the time, and that is worth something.
Fully half of the patents asserted later turn out to be invalid. Assignment of the patent is worthless. The only way to assure collection of sanctions or attorney fee judgments against trolls (or any judgment proof plaintiff) is to require the posting of a bond for that purpose prior to filing suit.
An alternative is to shift the cost to society, rather than to innocent defendants. Have the Court perform a review for frivolousness, a prior art search, and other tests before the case is accepted for filing. Only cases that looked like they were likely to succeed on the merits would get in the door.
Re:
To those folks, I think the argument needs to change, if only slightly. The value of Bieber's early video was in letting a talented kid gain exposure by covering his favorite songs. Now that he is ubiquitous, wouldn't it be great if someone _else_ could gain the public focus and edge him out?
Re:
(http://techcrunch.com/2011/05/17/netflix-largest-internet-traffic/).
To paraphrase out-of-the-blue, People who refuse to make up facts are always at a disadvantage, particularly when their opponents' wealth is at stake.
Re: "you should be able to buy the DVD of the movie you just watched"
Not surprised. Disappointed, but not surprised. The study (and Masnick's spin on it) suggests that the studios could make MORE money simply by doing what they are now doing but faster. Release in theaters, then release on DVD, but without the long lag in between. The issue appears to be that the studios have (wrongly) assumed that you need to have a long lag that discourages people from waiting for the DVD in order to drive up theatrical views. The study figured out that this is wrong - even without the lag, people who did not see the movie in the theater likely would not have seen it in the theater even if they thought that was their only opportunity to ever see it.
The studios could sell the DVD at the concession stand in the theater. No ticket, no DVD. They could only sell the DVD prior to a certain date to people holding a ticket saying they had watched the movie, or as Mike suggests offer a discount to ticket-holders. They could do all manner of things other than stick their collective head in the sand and wish the world had not moved on.
It is neither necessary nor desirable to lock up content, and in any event there most certainly are other ways to do it (for instance, never publishing it). I believe what you meant to say was that the studios have not figured out a way to make money without a monopoly on their content, and given the availability of copyright they are unlikely to do so. With that, I agree wholeheartedly. I think Mike's overall point is that that fact is a terrible shame.
Wait, doesn't this support the maximalists?
As represented in the article, the study does not suss out how much of the 1.8% is due to downloads and how much is due to loss of interest. But this at least provides _some_ basis for the claims of serious economic loss.
I do understand the point of the study - it doesn't matter how much harm can be traced to infringement, the fact is the infringement will occur. Thus, studios can either come to terms with that and fix their practices to deal with it, or keep running headlong into walls with their eyes closed.
"Morality" has no place in this discussion
Rosen is, ultimately, talking about law. Morality has even less purchase there. While I disagree that copyright infringement is "theft" (it plainly isn't), it is presently illegal. She is absolutely right about that. Those of us who believe in the rule of law should not knowingly or willingly break it, unless we must. I am not so creative as to conceive a circumstance where serious injury to body or property could only be prevented by downloading a DVD rip of Avatar. Thus, I do not do it.
As to the morality of copyright infringement - it must be noted that copyright itself is a new-ish concept, and for much of its life it referred to the right of sovereign governments to censor critical writing. Copyright as a monopoly on a particular expression did not exist until shortly before the US Constitution was drafted. Copyright on sound recordings did not exist in the US until the early 70s. The concept of there being a right to infringe is brand new, so the idea that it might be immoral to infringe it is also very recent. I believe that it is likely the result of a very successful PR campaign by the best PR engineers in the world, with whom Rosen used to work.
In the abstract, it is strange to conceive that it would be immoral to undermine a monopolist's advantage in order to inject competition into the marketplace, increasing the incentives to improve quality and reduce prices, even if illegal to do so. One rarely hears of the noble monopolist, beset by evil competitive forces but upholding the principles of price discrimination and profit maximization in an unfriendly marketplace.
Re:
But... what if someone were to edit the image without touching any of the creative elements AFP introduced? That would not infringe AFP's copyright.
Re:
Agree that FOIA is unlikely to be availing, but it might at least shake loose why it is considered to be "classified".
Re: Re:
Re: Re: Re: As usual, you didn't read all and over-stated according to bias.
Here, the judge properly indicated that the royalty rate should be .75%. Then he went about trying to decide whether and how much to enhance based on willfullness. According to Read Corp., a finding of willfullness does not mandate a damage enhancement, although it does permit one. Read goes on to say that the trial court must consider factors, including both aggravating and mitigating factors, and lists nine. Among them is one that would appear to be simple to apply here - the financial condition of the willful infringer, and particularly whether the enhancement would prejudice its non-infringing activity (which is not permissible).
The Federal Circuit requires that the trial court explain its consideration of the factors and how it arrived at the amount. To the degree the trial court did so here, its explanation was left wanting.
In any event, the fundamental problem here is probably not with the court's articulation of legal principles. The problem is that the only evidence considered was an irrelevant comment made outside of court. InnoLux's CEO thinks patent law is bad, or often misapplied. So WHAT?! What does that have to do with whether television and monitor sales include Mondis's patented inventions?
Re: Erie v. Tompkins
Re: As usual, you didn't read all and over-stated according to bias.
On your read, he enhanced on the basis that saying infringement is taken too seriously indicates that any ongoing infringement would be willful. Of course, after a verdict of willful infringement has been rendered (even if judgment was rendered notwithstanding that verdict), no further evidence of that is necessary (indeed, in the Fifth Circuit, willfulness is assumed as to any ongoing infringement after a verdict). The judge had set a rate of .75% for ongoing willful infringement based on the relevant evidence he had heard. He then enhanced that rate to 1.5% based on the comment. This was not because the infringement would be willful - that had already been decided. It was because the judge did not like the comment.
Taking it apart even more - the judge agreed, as did the parties, that there was a 9-factor analysis that should be applied to determine whether, and how much, to enhance rates for ongoing willful infringement. The judge then ignored 7 of those factors because he did not see how to apply them. He did not, for instance, consider InnoLux's post-verdict financial condition, remedial action, or motivation for harm (despite acknowledging elsewhere that InnoLux was not a competitor of Mondis, and therefore presumably had no motivation to undermine Mondis's (nonexistent) market share). Instead, he stated that the "paramount determination is the egregiousness of InnoLux's conduct." This statement finds no basis in the cited caselaw and does not appear in statute. But assuming its truth, the judge then based a 2x enhancement for willfulness NOT on the egregiousness of the infringement (which could after all be subtle, open, and necessary,) but instead on an out-of-court statement made in another country. That was the sole evidence cited by the judge. The judge assessed the doubling because of the egregiousness of an attitude, not the egregiousness of conduct. But the government is not supposed to dictate our attitudes - we get to decide what happens in our heads and hearts, and what comes out of our mouths. It only gets to penalize us for what we do.
Except in East Texas.
Re:
There can be exemplary damages - that is, damages intended to communicate to the offender and the world that the prohibited behavior will not be tolerated. They are generally permissible only upon a showing not just of willfulness, but of egregious misconduct. In any event, judges are not supposed to make an example out of someone for disagreeing with them. The CEO's statements out-of-court were irrelevent to the damage determination.
Bottom line - Ward did not indicate a legal basis for the enhanced award, and instead based it on his desire to suppress certain speech based on its content. That is a no-no.
Re: There should be
Well, now wait...
"Good and honest police officers (of which there are many) should support such things. If they're doing their job within the confines of the law, they should be happy to be filmed or photographed."
Logic very like this has been used to deprive people of their privacy for decades. These images and film segments can and will be used improperly, and even good, honest cops doing their job legally should be concerned about it. That does not mean they should not support the right of people to film their arrest, or that it should be illegal. But cops should not be naive, either. The point is not that cops have nothing to fear, but that the right of the people to be free from brutality and abuses of authority is worth the tradeoff.
Re: Re: Re:
Re: Wait, what?
Re: Re: Re: Re: someones got some bad math going on, so let me clear it up.
I did network stuff for a regional ISP during the modem->digital transition (you left ISDN off the list!). We certainly had a capital improvement budget that was reflected in our prices. But we were also charged more each month from our upstream as bandwidth utilization increased. We paid a subscription cost for OC3s and eventually OC12s, and we also paid an incremental cost for our use of them. Where did the marginal cost come from that justified that incremental expense? It sure felt at the time like a monopolistic rent that manifested itself as differential pricing.
Re: Re: You REALLY might need to think about terminology
OP is right, if the world is as he believes it to be then Mike has an issue because of his choice of terminology.
Mike offered $1k if two idiots will swap their "bandwidth bills" with Netflix. Netflix's "bandwidth bill" may be less than $1k (I doubt it, but it could happen) if it is not actually hosting its content. Admittedly, its CDS bill is certainly much much higher, and the CDS company's bandwidth bill is likely very high.
Michial's point here appears to be that, as a taunt, this was not carefully worded. He is right. I don't think that changes its quality as a snarky taunt: public opinion is unlikely to support Sununu and Ford if they accepted the offer and then insisted on a silly loophole. But he is not wrong that the loophole exists.
Re: loser pays
* NOTE - This does not mean the English Rule is bad, or that it should be abolished. In the small group of cases where the plaintiff is somewhere between impecunious and wealthy, it may have some effect. And in any event, it decreases the pain for some litigants some of the time, and that is worth something.
Re: Re: Judgment Proof
An alternative is to shift the cost to society, rather than to innocent defendants. Have the Court perform a review for frivolousness, a prior art search, and other tests before the case is accepted for filing. Only cases that looked like they were likely to succeed on the merits would get in the door.
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