Law Review Article on the Problems with Copyright

Excellent article by John Tehranian: “Infringement Nation: Copyright Reform and the Law/Norm Gap“:

By the end of the day, John has infringed the copyrights of twenty emails, three legal articles, an architectural rendering, a poem, five photographs, an animated character, a musical composition, a painting, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges). There is nothing particularly extraordinary about John’s activities. Yet if copyright holders were inclined to enforce their rights to the maximum extent allowed by law, he would be indisputably liable for a mind-boggling $4.544 billion in potential damages each year. And, surprisingly, he has not even committed a single act of infringement through P2P file sharing. Such an outcome flies in the face of our basic sense of justice. Indeed, one must either irrationally conclude that John is a criminal infringer—a veritable grand larcenist—or blithely surmise that copyright law must not mean what it appears to say. Something is clearly amiss. Moreover, the troublesome gap between copyright law and norms has grown only wider in recent years.

The point of the article is how, simply by acting normally, all of us are technically lawbreakers many times over every day. When laws are this far outside the social norms, it’s time to change them.

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Posted on November 26, 2007 at 6:54 AM • 78 Comments

Comments

Jo • November 26, 2007 7:40 AM

Not wishing to be picky, but surely these acts would be protected under Fair Use and Educational purposes clauses?

James Grimmelmann • November 26, 2007 7:56 AM

Jo is right about fair use (17 USC 107). The article is good in pointing out that copyright now covers a great deal of activity that it didn’t used to. But a better title would have been “There But For the Grace of Fair Use Go We.” Most of the activities it discusses are NOT infringements; they’re perfectly legal. This isn’t to say that copyright is balanced, or that fair use is always sufficiently useful in practice, but the article’s assumption of the worst possible case is fairly unrealistic.

Eric • November 26, 2007 7:58 AM

Jo,

Not wishing to be picky, but surely you read the referenced paper and its footnotes explaining why your supposition doesn’t hold up?

Wade • November 26, 2007 8:27 AM

I think part of the problem is that the artcile was not quoted in full:

“There is nothing particularly extraordinary about John’s activities. Yet if copyright holders were inclined to enforce their rights to the maximum extent allowed by law, barring last minute salvation from the notoriously ambiguous fair use defense, he would be liable for a mind-boggling $4.544 billion in potential damages each year.”

Not sure why the “fair use” part was removed from the blog entry.

guvn'r • November 26, 2007 8:34 AM

@Eric, yes, and I was impressed by how often the author cited his own publications as references in those footnotes. It made me wonder whether he’s that much of a thought leader, or that much out of step with his peers.

I do think he hits on a serious issue, the dependency on case law to clarify legal points requires defendants to litigate the issues. As he points out, plaintiffs may chose to pursue defendants that can’t afford the defense, like his pro bono client (for those not reading the source, that was a terminally ill Mexican immigrant on welfare who was sued as liable for his son’s P2P infringements).

It’s a good question whether justice is well served by the present regime.

aze • November 26, 2007 9:09 AM

@James

The entire point of the article is that the worst legal case isn’t reasonable. As Eric has noted, fair use does NOT cover these cases. There is specific case law given in the paper which shows that.

An example is that in the paper (p543/7) “John” replies to an email including parts of the email he’s replying to. Most people (myself) would think that that was fair use. However, clear case law is given in the paper which shows that since the email you have recieved is an unpublished work (sending private correspondence doesn’t count as “publishing”) you have very restricted fair use rights and that these won’t be enough to allow you to include exerpts from the mail. This means that it’s quite likely that email forwarding is unlicensed copying and thus illegal.

Now, as a non-lawyer, non-expert, it seems to me that the case law is a bit selected. There are probably precedents in the other direction; but a) it’s for you to point them out before you can make the fair use claim and b) even if that’s true, the cases shown here suggest that the issue has a reasonable chance to go against you at the point where it’s really important.

Professor Ivy • November 26, 2007 9:37 AM

This paper proves that people need to have a portfolio of defensive copyrights and that they must protect their copyright brand.

guvn'r • November 26, 2007 9:46 AM

@aze, also I believe the paper makes the point that fair use is an affirmative defense and explains that requires the defendant to demonstrate the applicability of the fair use exemption. In other words, you don’t get any exemption until you’re hauled into court and convince the judge your usage met the fair use definitions. As the paper shows, existing case law isn’t encouraging about your prospects.

Shri • November 26, 2007 10:03 AM

Let’s suppose for the sake of discussion that Copyright Fair Use does apply. You have been hauled into court facing millions of dollars of liability. It will cost you thousands of dollars or more to defend yourself over years of legal wrangling, regardless of the outcome. This is “fair use”?

(Anticipating: And it makes sense to pay yet more to hire a lawyer to prosecute a SLAPP counter-suit? Yeah. Right.)

Sarah Haras • November 26, 2007 10:17 AM

So who owns the copyright to this comment to Mr. Schneier’s blog?

Am I creating a derivative work by just commenting?

Is the excerpt he published an infringement?

I am so confused!

js • November 26, 2007 10:29 AM

Question. What kind of criteria is there for original work that enjoys copyright protection? Surely a routine email message is not considered sufficiently original?

Fred P • November 26, 2007 10:32 AM

Favorite quote:

“Sporting the tattoo, John has become the infringing work. At best, therefore, he will have to undergo court-mandated laser tattoo removal. At worst, he faces imminent ‘destruction'”. -pg 545

Gee, I better stop showing off my tattoos, eh?

Anonymous • November 26, 2007 10:40 AM

Not sure why the “fair use” part
was removed from the blog entry.

This way it’s not an exact quote from the original document.

Fred P • November 26, 2007 10:41 AM

@js

If the e-mail was written in 1978 or later, then, yes, it is under copyright protection for a very long time (before then, it would need to be registered). It’s even worse if it’s poetic – then, in some cases, even quoting a few lines could be serious infringement.

James Grimmelmann • November 26, 2007 11:08 AM

@aze:

Actually, in the hyothetical about John, there aren’t many case citations and the ones that are there are mostly off-point. The note 31 cases deal with unpublished works facing competition from a commercial enterprise that got to press first with key excerpts (Harper & Row), or with the commercial publication of things not meant for publication at all (Holt, Salinger). The Gerswhin citation goes to secondary infringement, but that’s only an issue once primary infringement has been shown, which it hasn’t.

In note 33, there are plenty of details in the hypo that make John a better candidate for fair use than the defendants in the MDS, Kinko’s and Texaco cases. Duffy involved “scholarship” in the sense that one author allegedly plagiarized another. The court there actually found that the photocopying was a fair use. And USTA involved a trade association that tried to get out of paying multiple subscription fees for its members by buying only one subscription to a periodical. Thes cases are not good support for the claim that John is an infringer for giving his class copies of just-published Internet articles.

To be fair, the cases cited in footnotes 45 and 46 are as outrageous as the article makes them out to be. But they don’t fill in for the conspicuous absence of case support through the rest of the hypothetical.

FP • November 26, 2007 11:09 AM

Great article. I think it even misses one infringement: “Before leaving work, he remembers to email his family five photographs of the … football game …”.

Reproduction of pictures from football games and other public events is usually restricted by the organizers, so that you can’t upload your unlicensed cellphone videos of major league games to youtube.

Also, the author overlooked the grassroots effort against the Sony Bono Copyright Term Extension Act: there was a “Free the Mouse!” campaign, inspired by the facts that Mickey Mouse would have entered the public domain this year, and the coincidence that Disney was a major sponsor behind the CTEA, spreading doomsday visions of their “major American icon” appearing in mouse pr0n. The effort culminated in the Eldred v. Ashcroft supreme court case that ultimately failed: http://eldred.cc/eldredvashcroft.html

@Fred P.: about tattoos

The implicit assumption in the article is that the tattoo shop did not license the copyrighted character for reproduction. Certainly as a customer I would expect that the imagery for any tattoos that I purchase is properly licensed for public display. So with respect to the article, while the wearer of the tattoo may be liable for infringement, he would stand a good case suing the tattoo shop for his damages.

Antonomasia • November 26, 2007 11:11 AM

Time everybody had this on their home page then, like I have for ages?

“Any email I receive may be quoted in public unless I have previously agreed otherwise.”

Jack C Lipton • November 26, 2007 11:37 AM

Copyright infringement isn’t the “taking” of real property, you know.

Microsoft, for instance, would not have become a dominant player if the original MS BASIC (on paper tape for the original S-100 machines) had not been “infringed”.

As a writer– yes, my words are free, but I retain copyright– I am of the opinion, these days, that my writing aren’t a “real, tangible” good but more like a bit of real estate, so, when infringed, it only amounts to an easement.

I wrote a crappy SciFi story– one of the first I ever publish, orignally hoping it was small enough for the “Probability Zero” page of Analog SF Magazine, named “Seeds of Extinction”… and it was basically a story about the commoditizing of intellectual property as a tangible good. I really should re-do it to smooth it out but it got read, enough.

Warning: The link under my name is to an adult site and should NOT be accessed from work.

Dom De Vitto • November 26, 2007 11:41 AM

Fair Use? That’s a US of A thing.

From TRIPS: “National exceptions to copyright [such as “fair use” in the United States] must be tightly constrained.”

So by putting up comments above, you illegally distributed them (into the UK, in my case), and you’re dogmeat when the lawyers find out….

Didn’t someone once say “The law is an arse.” ?

Clive Robinson • November 26, 2007 11:49 AM

@ Jo,

“So those barmy email disclaimers might have teeth after all?”

Depends on the country you are in…

In some countries the writer of private corespondance loses the rights to them when they commit the act of “posting” through the postal system (not that Email is the legal equivalent).

The reasons for this are quite arcane and to be honest it is so long ago it was explained to me that I now cannot remember them.

Even in the U.S. you have a lot of funny laws to do with posting a letter especialy if it contains a bill or invoice that might be incorrect (Postal Fraud).

Apparently U.S. Postal Fraud laws have more swinging penalties than plain ordinary U.S. fraud laws…

Anonymous • November 26, 2007 11:49 AM

@Antonomasia, what you’re saying is semantically equivalent to “Electronic correspondence that I receive which is subject to copyright may be infringed unless I have previously agreed otherwise.”

At least you are honest about your law-breaking intentions.

Joe Buck • November 26, 2007 11:54 AM

It gets worse. Putin’s government in Russia is using copyright infringement as a way to persecute his opposition in a way that the West can’t argue against; since everyone is guilty, everyone is prosecutable.

Don Marti • November 26, 2007 12:15 PM

The hypothetical multi-million-dollar infringer in this story wasn’t even doing anything political. A lot of today’s political communications in the USA depends on quotations and excerpts from opponents, and they have no incentive to license their works to you. Robert Greenwald and “Spocko” are two good examples, but I’m sure we’ll see more on YouTube, podcasts, and elsewhere.

David in Chicago • November 26, 2007 12:23 PM

The hole is, you need to show harm in order to get the case past Federal Rule 12b-6 (the “yeah, so?” rule). In other words, if you tried to sue someone for copyright infringement because he included excerpts from (or gasp! the entirety of) your email in his reply, his answer (which the very busy Federal judge would no doubt accept) would say that you have failed to state a cause of action for which relief can be granted. Then he’d probably counter-sue to recover his costs on the grounds it was a dillatory lawsuit.

The system is self-correcting. See, e.g., a Connecticut man charged with criminal adultery in the 1990s: the prosecution was dismissed, no prosecutor will ever again try to get an adultery case going, but the law remains on the books because it’s not worth the legislative time to change it.

Fair Use is Crazy • November 26, 2007 12:54 PM

You guys realize that Fair Use is something you have to prove in court right? By the time you’re proving that your use was fair, you’re already on the hook for big money in legal fees.

And how many of the copyright rules do you know? Did you know that having a TV that’s too large can be copyright infringement in some cases? You can rent console games that meet very specific requirements, but you can’t rent PC software (I really have to wonder where the X-Box games fall, legally speaking, given that the X-Box is just a PC, but it doesn’t seem like Microsoft cares to test it and they may still meet the statutory requirements).

Honestly, read USC 17 sometime. It’s positively mind-boggling. We’ve got everything from international treaty created super-trademarks (the Olympics & Red Cross spring to mind), loads of crap meant to serve various lobbies, and so many screwball statutes that I don’t understand at all.

Granted, IANAL, but I think that the average person would be surprised by just how many rules there are. And those are just the statutes!

God help you when you find out that, while “facts” aren’t copyrighted, facts about a fictional work aren’t really “facts” according to at least one court! That’s right, the fact that Harry Potter attends Hogwarts may not be a “fact” per the law. So I might just have infringed upon Rowling’s copyrights right there.

She won’t sue, you say? Actually, she IS suing someone right now over that very issue because they want to publish an unauthorized encyclopedia…

Is it really Fair Use when there are so very many confusing rules you have to follow to maybe, hopefully be protected (with that assuming the courts decline to make a new precedent or extend existing law)?

Or to sum up this entire post, isn’t it bad if we each need our own personal lawyer just to be able to OBEY the law?

Pat Cahalan • November 26, 2007 1:01 PM

@ David in Chicago

The system is self-correcting. See, e.g., a Connecticut man charged with criminal
adultery in the 1990s: the prosecution was dismissed, no prosecutor will ever again
try to get an adultery case going, but the law remains on the books because it’s not
worth the legislative time to change it.

There are a number of costs involved here; ask Donna Carroll (http://tinyurl.com/3ce7s5). Some prosecutors may very well get an adultery case going, which is a massive headache for those charged. Those costs can also be excessively punitive, ask Jammie Thomas if a $220,000 judgment is apropos.

Fred P • November 26, 2007 1:09 PM

@Fair Use is Crazy-

Personally, I find the Berne Convention ( http://www.law.cornell.edu/treaties/berne/overview.html ) to be insane as far as the publics’ interests are concerned, never mind specific county’s codes (which, at least with signatory nations, tend to be more restrictive). Essentially, it was a legal taking of modern culture for companies that generate widely distributed copyrighted content; the terms should be far shorter for the purpose of encouraging the creation of original works alone.

san1t1 • November 26, 2007 1:27 PM

I have something really insightful to add, but can’t, because somebody else said it first and I don’t want to be sued. Can’t add to the debate now, sorry.

Antonomasia • November 26, 2007 1:30 PM

At least you are honest about your law-breaking intentions.

I’d say that I had the consent of the copyright holder so no law was broken.

John Doe • November 26, 2007 2:38 PM

You know it’s really annoying when you submit a link to an aggregation site such as Slashdot under the premise that it’s a link to an actual article. I really don’t care about your blog and neither does almost everybody who clicked through to see the actual article. You are a Spammer in the truest sense — you give me something I really didn’t want in the first place nor was I ever interested in receiving.

amalafrida • November 26, 2007 3:12 PM

To get back on track. . . as a copyright owner, I have no problem with broad (and even excessive) legal interpretations. If one does, then the democracy of voices sets precedents.

Speak up.

To date, copyright advocates have the laurel.

Cordially.

Rich Wilson • November 26, 2007 3:17 PM

In “Digital Copyright” Jessica Litman put forth the same proposition- that copyright law is completely out of sync with common sense. Her proof is that every year dozens of hospitality owners would go into court against the advice of their lawyers because they couldn’t believe that the owed royalties for having a TV running over their bar. And they’d lose. Over and over again.

(That part of copyright law got dropped in the last go-round in exchange for an extension on Mikey’s life)

amalafrida • November 26, 2007 3:19 PM

And further, why should my “front page” architecture not be my property?

If you copy, redesign, say “eureka”, or simply copy my code . . . why shouldn’t you owe me for the time and expenditure of cranial protein?

Kind of goes back to John Locke: “if you’ve cultivated the terrain, you own it.”

But of course . . . there’s always the question of “who owned the terrain before I did?”

Too complicated.

Nostromo • November 26, 2007 3:20 PM

@FP
“Reproduction of pictures from football games and other public events is usually restricted by the organizers”

I don’t think they can use copyright law to do that (assuming you’re talking about preventing people from publishing pictures they have taken themselves).

bitandbyte • November 26, 2007 3:37 PM

The article does not contain a copyright or a date. The website (his law firm) has an article page, that does not list this article. What can I legally do with this article?
* Is the link legal? (“I will make it legal!”)
* Can I print it out?
* Can I quote from it?
* How do I cite it when it has no date?
How was this article found? Was it on the web page, previously?

Boojum • November 26, 2007 3:42 PM 

Taking pictures at a football game might be against the law, but it's not copyright infringement.  It is contract violation (the contract is specified on the ticket you purchased.)   Copying the pictures you took is not copyright infringement even if you broke the law to take them.  The copyright is yours.

Now taking a picture (or a screenshot) of a TV screen and sending it around, that IS copyright infringement.

Boojum the brown bunny

xf • November 26, 2007 3:52 PM

Standard technique of totalitarian regimes the world over: make everyone a criminal, then prosecute the ones you don’t like.

Paul Siro • November 26, 2007 3:59 PM

The problem with copyright, as articulated by Richard Stallman, is, it used to be a restriction on publishers by authors. Essentially an industrial regulation.

Now, it functions as a restriction on the behavior of ordinary citizens by publishing companies.

When it was more like an industrial regulation, the argument went, “this is what you have to accept if you want to get into the book-publishing business”. Now, copyright is an intrusion on everyday activities that regular citizens have to accept if they want to do something as simple as read.

Greg • November 26, 2007 4:20 PM

In response to Jo and Jame’s’s comment about the fair use procedures, they may well hold up under fair use exemptions – under U.S. copyright law.

I’m Australian, and naturally our copyright law is different as is every other country. So we also have a systemic problem here in as much as you could perform an internet-based action which is permissable under fair use rules in the U.S. Then, if you happen to go on holiday overseas, you could be arrested at the border and then extridited to a third country to face criminal charges.

So, saying “it’s covered under fair use” only helps you provided you never leave your own country’s jurisdiction.

Fred P • November 26, 2007 4:26 PM

@John Doe-

1) You’re assuming that Bruce Schneier has the handle “ScuttleMonkey” on Slashdot; I doubt that’s the case.
2) I don’t get the same inference from the Slashdot article that you seem to have gotten. In any case, you should always look at the URL prior to clicking.

Andrew • November 26, 2007 4:44 PM

Could we then take it that any email client with a reply feature that quotes the email you’re responding to is a circumvention device under the DMCA?

IonOtter • November 26, 2007 6:14 PM

Just skimming through the comments, and EVERYONE IS MISSING THE POINT. Including the author.

What do you suppose is going to happen when a company with several hundred lawyers, a legal budget in the tens of millions and endless amounts of time on their hands, decides you have done something they don’t like?

Weather or not you have the right to do something is not the point.

Weather or not you can stand toe to toe with your accuser in COURT IS the point. If you can’t, you lose by default.

Remember, folks: It’s not how much “justice” you can get, it’s how much “justice” you can afford.

Mike H. • November 26, 2007 6:51 PM

@IonOtter:

I’m trying to figure out whether the weather really has anything to to with this topic.

Jeremy • November 26, 2007 7:12 PM

@Antonomasia “I’d say that I had the consent of the copyright holder so no law was broken.”

So the fact that you made a public statement somewhere that you won’t respect the copyright of anything sent to you in email means that anyone who sends you an email has given you permission?

Why don’t you just put a message on your web page that says “I may do anything I want with anything that anyone puts in a place where I can see it unless I previously agree otherwise?” Then you can argue that the copyright holder has given you permission by putting the copyrighted work in a place where you can see it, right?

There’s no guarantee someone who sends you an email has read your web site and there’s no guarantee the sender of the email has the copyright of the material sent in the first place (and therefore may not be able to give you that right even if they wanted), but even if neither of those was a concern, it’s ridiculous to suggest that someone has entered into some legal contract you’ve unilaterally specified by performing some action (sending you an email) that doesn’t even require your consent in the first place.

Making public quotes of most private correspondence may be perfectly reasonable–especially if it’s sent to an address specifically used to receive comments that people want to have publicly discussed–but the suggestion that you are (or should be) allowed to do it BECAUSE of that comment on your web page is ludicrous.

Andrew • November 26, 2007 7:19 PM

@Anonymous May I have your permission to make that my sigblock?

Sure.

Walking further down the same train of thought: If an email client with a quoting reply feature is a circumvention device under the DMCA could it be argued that it’s a hacking tool and therefore should be banned in Germany?

Kashmarek • November 26, 2007 9:29 PM

This is less about copyright and more about control. The general mood with copyright holders is controlling what you (consumers et. al.) do with the material. The value of the intimidation is worth more than the monetary returns. At some point the monetary returns go to zero because the intimidated population no longer has money or stop buying, and control is all that is left.

elegie • November 26, 2007 9:29 PM

“…simply by acting normally, all of us are technically lawbreakers many times over every day.”

For software developers, and possibly others, could something along these lines apply with regard to software patents?

Stuart Cheshire’s writing at http://www.stuartcheshire.org/rants/Patent.html may be of interest in this regard.

Andrew • November 26, 2007 9:33 PM

Clearly copyright law is so far out of touch with reality that it has become a weapon with which the technologically incompetent can bludgeon their would-be competition — and preserve their monopoly at the expense of the general public.

Sound much like patent law?

LawHusick • November 26, 2007 9:39 PM

Most of this thread misses the point…as a practicing IP attorney, I can tell you that the economic inefficiencies of the legal system outweigh the defenses available. If you are accused of infrigement, and want to assert a fair use defense, it will cost you a minimum of $40,000, on average, to do so in court. If the system imposes such costs on everyone accused, then accusations will continue to flow, even in cases that are of little real economic value.

wvhillbilly • November 26, 2007 10:15 PM

I suspect if copyright maximilists had their way, there would be no public domain, there would be no such thing as fair use, copyright would be forever and any use whatsoever of any copyrighted content (everything is copyright by default anyway) would constitute infringement bringing immediate legal action. Copyright holders would get rich in the short run, but since everyone would soon be in prison (all football stadiums, ball parks and any other places capable of holding large numbers of people would be turned into prison camps for copyright offenders) and there would be no one left to sue, and since there would be no one left to take care of commerce, everyone would starve and the human species would quickly become extinct, except for a few isolated islands with primitive cultures which know nothing of copyright.

Am I exaggerating? Maybe, but just slightly. 😉

Jack C Lipton • November 26, 2007 10:38 PM

Copyrights and corporations…

Perhaps we need to step back a little bit with regard to copy rights… and even patents.

I believe that a concept arises in the mind of ONE person and ONE person ONLY. A committee or staff may bring and idea to fruition, but the seeds only germinate within a single mind.

So, considering that, I wonder whether a corporation– which doesn’t have a life-time, but could have several— should EVER own a copy right… or even a patent. The licensure of these things may provide some privileges of notifying the actual copyright owner of infringement and may even, to protect the money they paid in licensing, to exercise the enforcement of this arrangement, with the cooperation and commitment of the actual owner. This would apply to Patents as well, I believe… and I’d also suggest that a corporation only have an “automatic license” as long as the employee(s) involved are all employed… or have separated willingly.

And, to be honest, unless Intellectual Property reaches the compost pile called “the public domain”, subsequent works will get thinner and thinner and the garden that is human creativity will, over time, starve for nutrients.

elegie • November 26, 2007 10:47 PM

When a work relies on fair use, a distribution channel (such as a TV broadcaster) might be concerned about disseminating the work. In particular, relying on fair use might make it harder (or perhaps impossible) to get “errors and omissions” insurance. For more on this issue, please see “The Boundaries of Copyright” at http://www.dv.com/features/features_item.php?category=Archive&articleId=189400331

Things might improve in this area. As described in the DV article, the Center for Social Media published a document called the Documentary Filmmakers’ Statement of Best Practices in Fair Use. This document gives guidelines about applying fair use in certain common situations (such as a critical commentary on something else.)

According to the Center for Social Media, the major US errors and omissions insurers are now willing to accept fair use claims. Please see http://www.centerforsocialmedia.org/blogs/fair_use/major_insurers_all_accept_fair_use/

Neighborcat • November 27, 2007 1:51 AM

I fail to see why copyright is held out as the only example of law run amok. Consider all of the other ways most of us break laws by going about our lives in a peacable, productive manner.

Speeding: Just try holding the speed limit on your morning commute.

Use of products in a manner inconsistient with the label: Federal offense there.

Not turning every single person you knowingly see break the law in to the appropriate authority: Complicit, now aren’t you.

These are just a couple of admittedly trivial examples of how our laws are written so that we live free at the pleasure of those with greater legal resources, and only as long as the fickle gaze of the law is on somone else.

Copyright law isn’t particularly idiotic, it’s just that the resource mismatch between plantiff and defendent is typically greater than in other areas of the law.

Did you know that if you laid all of the lawyers in the US end-to-end, it would be easy to run over them with a steamroller?

Tarkeel • November 27, 2007 2:08 AM

@Andrew: For it to be a circumvention tool, there has to be something to circumvent. Since horrid crypto is technically indistinguishable from using a different character set, you could infer that the client must be able to convert between chracter sets, thus “circumventing” the encoding/”encryption”.

frankchn • November 27, 2007 2:10 AM

“Give me six lines written by the most honorable of men, and I will find an excuse in them to hang him.” ~ Cardinal Richelieu

averros • November 27, 2007 2:22 AM

The notion of copyright itself is insane. It cannot be “fixed”, repaired, or restored to sanity.

In fact, the whole debate about “intellectual property” is totally deranged by the newspeak – “IP” is NOT property. It is nothing more and nothing less than temporary government-granted monopoly. It also includes quiet redistribution of funds needed for enforcement of this monopoly from taxpayers to “IP rights owners”.

Now, why exactly the government should grant monopoly to some class of people? Just because they were first to the pole?

The theory that intellectual “property” becomes somehow valuable because of the efforts spent by its creators is pure unadulterated marxism. (The labor theory of value to be precise).

The real property (i.e. in physical objects) exists because it has a purpose of eliminating conflicts about control of rivalrous goods. The information is NOT rivalrous – it does not disappear when someone copied it. Therefore, adding the artificial scarcity on the top of the a priori non-rivalrous good can only create conflicts. Which it does. The purpose of these conflicts, of course, is to allow politically powerful interests to rob the general population. Which is what we see.

sowhatrule NOT • November 27, 2007 3:12 AM

Look I thought the law review article was stupid. However, 12b-6 isn’t a “so what” rule and it doesn’t require you to show damages. You merely have to state a legal cause of action. And if you lay out the elements of copyright infringement than you will survive a motion to dismiss. And the whole point of statutory copyright damages, which are available to you if you register a copyrighted work in a timely fashion, is that you don’t have to prove any economic damages.

greg • November 27, 2007 4:34 AM

@averros

the native Americans could say the same thing about land ownership. The concept that you “own” land was about as stupid as owning a “idea” or owning the ocean.

You just can’t go to that extreme and be consistent with other “property” laws. When one considers just how much modern tech is/will make objects just as clone-able as information, as happens in china now with everything from cars to shoes.

Example when you by a BMW do you want it to be a BMW or a cheap China knock off? What about Nike shoes? In both cases nothing is “stolen” but something is taken.

Of course copyright is totally the opposite extreme, and i do see your point. But logically the other extreme does not work either. The only thing it truly protects are lawyer salaries especially if one considers the anti commons problem.

As it stands now I think copyright should be for 5 or so year tops. But lawyers probably wouldn’t like that.

Richard • November 27, 2007 6:51 AM

So many people quote the founders of America when they say how we need copyright, but back then it was so different. It was a balance and it was limited.

I think if you were to go back in time and show this article to those founders they’d be very upset at what copyright has become. Add in the patent changes and even the privacy changes mentioned in this article and you may need to take a defibrillator back in time with you too.

David • November 27, 2007 10:55 AM

If this were really a problem, wouldn’t we see real court cases instead of imagined ones?

People don’t sue for copyright infringement unless they can show harm. Without damages, there’s no money to be made and no case to be pressed. You can sue for anything, but you can’t win unless you have been harmed and the person who did the harm is found guilty of violating a law. So, if you sent a valuable email and it was forwarded in whole, you might have a case, but only if the forwarding caused you harm (and not just disclosure).

Furthermore, such a court case would create the legal precedents for such common use “infringement.” Perhaps the courts would not side with the purported owners in these areas.

ReadEverythingFirstDummy • November 27, 2007 11:28 AM

@David

Read the rest of the comments and do a google search. Learn what statutory damages are for gods sake.

They ARE suing. It IS a problem. Someone got told to take a Home video off you tube because the baby was dancing to a copyrighted tune! You could not even hear the tune. I heard other cases of billboards being protected from school movie projects.

I the USA you don’t need to have real damages just a better lawyer!

Jeremy • November 27, 2007 1:31 PM

@averros

Just because something can be easily copied doesn’t mean that it isn’t valuable. It is indisputable that information can have clear, measurable value. If it didn’t, then this wouldn’t even be an issue.

Creating information–either creative or observational–requires work. The person who first creates information pays much more than the cost of copying the information after it exists. I think it makes a great deal of sense to provide some sort of advantage to the person who pays that initial cost in order to encourage more people to do so, rather than just sitting back and profiting from the work of others.

But encouraging people to pay the initial cost only helps if society as a whole eventually benefits from it–which is why copyright is good, but only in moderation.

Anonymous • November 27, 2007 3:19 PM

averros said: “The notion of copyright itself is insane. It cannot be ‘fixed’, repaired, or restored to sanity.”

@averros:

So you write a comic book. Let’s say it is about a really clever robot. The robot has a fairly stylish and unique look. The comic book is a big hit, and the public is clamoring for more. You’ll be rich because people want to pay to buy more comics.

But someone else, perhaps a huge comic book distributor, hires a few artists who are pretty good and some writers and just starts making comics starring your robot. The public loves them as well, because they are pretty good, and they star your robot. You created something pretty nifty, so why shouldn’t they just use it for financial gain as well?

There’s no use for copyright?

Look, I agree that modern copyright law is nuts. It is designed so nothing every enters the public domain. But on the other hand, imagine you are the Disney company. Aren’t you scared to death that your biggest asset, Mickey Mouse, every so often teeters on entering the public domain? Is it really worth Mickey Mouse porn and Mickey Mouse knockoffs?

I am not providing an answer to that question… as I see value to both sides of the answer.

Mike • November 27, 2007 6:23 PM

A copyright Haiku…

Copyright for me
Quote this and I will sue you
There is no fair use

😉

-Mike Poe

Pr0nDude • November 28, 2007 3:43 AM

@Anonymous at November 27, 2007 03:19 PM

There already is Mickey Mouse porn. Its on servers outside the USA.

Think of any cartoon and there is porn on it. The porn industry has never been the most honorable of industries, but then who is?

Copyright to stop porn is like trying to stop teenagers thinking about sex. Its the dumbest argument yet.

Oh and why should the laws look after Disney’s products at my expense?

averros • November 28, 2007 6:31 AM

@greg

“You just can’t go to that extreme and be consistent with other “property” laws.”

The half-falsehood is still falsehood. The laws must be at least self-consistent, meaning that they must follow laws of logic. Which means being “extreme” in following the logic. There is no logical way to have laws which have both physical and “intellectual” property rights.

“Example when you by a BMW do you want it to be a BMW or a cheap China knock off?”

This example has nothing to do with intellectural property – when someone sells a cheap chinese knockoff as a “genuine” item the seller commits fraud. Which harms the buyer, not the original vendor.

“As it stands now I think copyright should be for 5 or so year tops. But lawyers probably wouldn’t like that.”

Why 5? Any logical reason? Why not 4? Why not 6? There is no way to tell. The laws should not be that arbitrary – of course, lawyers just love contradictory, arbitrary, incomprehensible and illogical laws. They earn living by “helping” the rest of us to navigate through that maze of idiocy.

@Jeremy

“Just because something can be easily copied doesn’t mean that it isn’t valuable. It is indisputable that information can have clear, measurable value.”

That something has a value does not mean that it must be property. I.e. the Sun has a great value for all of us. Do you propose it to be made someone’s property?

“Creating information–either creative or observational–requires work.”

Yep. But the work does not create value and does not guarantee income. Claiming that is the same as subscribing to the labor theory of value. With everything what follows from it – i.e. marxism. We all know where that line of thought leads, don’t we?

“But encouraging people to pay the initial cost …”

I just love it when people call visits by armed thugs “encouragement”. Every law always, invariably, boils down to violence or threatened violence. If you think that creating more books, tunes, or flicks is more important than preventing from someone being beaten up you may want to have your priorities seriously re-examined.

@Anonymous

“You created something pretty nifty, so why shouldn’t they just use it for financial gain as well?”

If they can… why not? Or jealousy that someone else figured out a way to get rich is something which needs to be protected by law?

“There’s no use for copyright?”

None whatsoever. There’s ample proof by existence that copyright is not a necessary precondition for creativity, and there’s equally ample evidence to the fact that it hinders true creativity (rather than faux creativity of the junk culture).

TheBull • November 28, 2007 8:20 AM

OMG, So much of fuck raking. For a change come to India- No Copyright, No Patent, in practice. If you make a thing and wan’t people to know what you have done- you share(PERIOD).

greg • November 28, 2007 9:18 AM

@averros

So if the China “BMW” is just as good as the BMW BMW because BMW spent the time and money on the R&D and chinas is good at cloning. China then Sold them as chinas Copy of BMW, so now there is no fraud. This is then fine? And BMW, what do they do now?

What if I republish a Stephen King book under my own name? This is copyright infringement now. But by your standards its fraud because I did not write it. Copyright is the current law used to prevent this. New laws would be needed to prevent this…

What if i write a book for a publisher under contract, but the editor jumps ship with it to a different publisher. My contract was with the original publisher and since there cannot be any “ownership” of the specific text, the evil editor can even sell the book openly to the new publisher as stolen!

And anyway what do you do for a living?

I publish in scientific journals, I don’t want people to just copy what I have done and pass it on as if they did them. The primary means of preventing that is copyright. Note this is not a “creativity” argument.

And the 5-10 year thing was based on a study that was attempting to optimize incentive to create vers benefit to society. I don’t recall where the study came from.

Oh the other thing that I would like to see it that corporations and companies can’t have copyright or patents. Or at least there sting is somewhat reduced from what we have now…

Jeremy • November 28, 2007 2:24 PM

@averros “There is no logical way to have laws which have both physical and ‘intellectual’ property rights.”

Why not? What is the logical contradiction in having two sub-concepts within the general concept of “property?”

“Yep. But the work does not create value and does not guarantee income. Claiming that is the same as subscribing to the labor theory of value.”

So you agree that work can create information, and that information can have value, but maintain that work cannot create value? If that’s not an outright contradiction, I’ll need you to explain to me what you mean.

I also don’t see any connection whatsoever to the labor theory of value. I’m not saying that it’s valuable because it involves work; you can expend lots of work on completely valueless things. But that doesn’t mean that work cannot create value.

“Every law always, invariably, boils down to violence or threatened violence. If you think that creating more books, tunes, or flicks is more important than preventing from someone being beaten up you may want to have your priorities seriously re-examined.”

This is perfectly absurd reasoning. Do you think that having more money for yourself is more important than preventing someone from being beaten up? Most people probably don’t (and will surrender their wallets if mugged). Yet you want your money protected by laws against theft–threatening thieves with violence.

Laws limit acceptable behaviors. We ultimately have to use force against people who refuse to obey laws, but that force is (in theory, at least) only used against people who participate in behaviors that we, as a society, have decided are unacceptable–and even then, usually as a last resort. People can avoid getting beat up simply by doing what we have already agreed they should be doing anyway.

If you believe it’s unacceptable to use force against criminals, then your problem is with laws in general, not with intellectual property.

elegie • December 8, 2007 11:52 PM

In the Eldred v. Ashcroft case, representatives of the Dr. Seuss estate expressed concern about public domain works being reused in pornographic works or pro-drug works. For more details, please see http://www.sslug.dk/~chlor/lessig/freeculture/c-balances.html#AEN1729 Such a possibility sounds quite bad, but it is worth considering the following:

  1. Certain works can be trademarked, including fictional cartoon characters. Even after such a work is no longer copyrighted, the trademarked status could allow certain reuses of the work to be restricted.
  2. An offensive parody of a work, assuming that it meets the definition of a parody, would probably be defendable as fair use.
  3. To prevent derivative works or alterations to a work that would hurt the honor or reputation of the author, it might be better to rely on legally-granted moral rights (http://en.wikipedia.org/wiki/Moral_rights) instead of increased copyrights.
  4. How does the value of being able to freely reuse a work (for tasteful purposes in addition to distasteful purposes), compare to a work being perpetually (or effectively perpetually) unavailable for reuse?

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