Former Copyright Boss Thinks The World Owes Him A Living

The BBQ Pit
61

This is a characterization, not a fact. You can say that Chrysler has a monopoly over Chrysler automobiles. But one of the most important things about copyright law is that one thing it does not do is grant monopolies over ideas, specifically, and as a basic principle. Anyone can create a work based on an idea and there is no restriction. What is restricted is taking a particular person’s expression of that idea, and that is something that no one has some kind of natural right to.

When it comes to ideas, it’s a very free market. A huge number of creators are producing works based on any one idea and you have your choice.

You want a basic physics textbook? There are dozens. Go out and find the one that is offered on terms you like. I’m sure there’s even a free one. You want my physics textbook? You bet I believe I think it’s not unreasonable that the law allows me to dictate terms. Are you saying that my physics textbook is the best one, because of the specific way in which I have expressed the underlying ideas? Well, that only strengthens my conviction. I used my life to develop the skills and expertise needed to produce this specific work. And it’s good enough that you think you have to have it, given a huge number of acceptable alternatives?

And the writers who do make money are being represented by proxy by the content distributors. Yes, distribution is a dying technology, but that doesn’t affect the basic principle. No matter what happens to printing presses and DVD factories, the question of a creator’s rights remains the same.

No single work is necessary for you to have. You are always free to reject it and find another expression of that idea that is offered on better terms.

Again, that was the situation before intellectual copyright law. There were a lot fewer creators, a lot fewer excellent works, a lot slower development of expression, ideas, and technology, and a lot fewer members of the public benefiting from any of it. Without IP protection, that’s what you’ll have, a lot more cats playing the piano, and a lot less of anything that’s good. And of the things that are good, a lot more of them will be available only to those willing to pay very high prices. That’s the patronage system.

62

OK so why the lifetime+70 years. Thats a really frikking long time.

63

The United States changed its law so that the term of protection matches with the rest of our major trading partners – that’s a practical issue that makes perfect sense to me: We should have a globally unified system.

As to why they thought that life-plus-70 is optimal compared to life-plus-50, I don’t know. I don’t have much of an opinion on the specific copyright term. Neither seems unjust to me, but I wouldn’t stake my claim on either of them.

I would say that although life-plus-70 doesn’t seem outrageously long to me it does seem just about long enough to me, and I wouldn’t be enthusiastic about extending it any further than that. I don’t think there is really any way to be objectively absolute about it. As I said, to me, the original author’s lifetime should be the bare minimum. Beyond that, I can’t be any more specific. Is it a “really frikking long time”? Eh, I have no strong opinion about that.

64

Or Ralph Oman was a lobbyist for the International Association of Broadcast Monitors during his employment with Dechertli and is just continuing to pitch for the corporate entities that lined his pockets after leaving government service.[/li]
*It appears the paid lobbying ended around the time that he left Dechert (2008).

65

Except, you can make it illegal, you can rant and rave about how people who watch an episode of Game of Thrones for free because they don’t want to pay $60 for it are horrible horrible people and you wouldn’t steal $60 out of an old lady’s purse would you? Except most people don’t think that watching Game of Thrones for free is the same as stealing $60. Because it isn’t the same.

Thing is, there are a dozen legal ways I can watch Game of Thrones for free that don’t involve making a copy of Game of Thrones, but it’s only a violation of the law if I make a copy. If I borrow it from the library, or from a friend, or find a DVD in a dumpster, or watch it on my buddy’s cable, or watch over my buddy’s shoulder after he paid for it, and on and on, I’ve consumed the precious content without compensating the creators by one thin dime.

66

With regard to those methods, the creators have structured their contracts in advance to account for those methods, and the revenue streams have been so far beneficial than not. In other words, they have been paid in advance for the idea that a library might lend a DVD to people or that someone might invite friends over to watch TV. And the prices paid account for that. (If you charge your buddies admission to watch TV at your house or if you let the general public watch your TV, you very well might be found to have infringed, by the way.)

So, this idea that they’ve been paid in advance might be the key. I think a very workable solution might be that those who sell technology that allows people to distribute or copy works without permission must pay royalties in advance to account for such uses. And now that many technologies are moving to a service rather than a sale model, that becomes even more feasible.

In any case, that’s just a problem to be solved. It’s not a fundamental injustice.

67

Yes, it is a fundamental injustice.

We don’t charge people who make printing presses a fee because the printing press facilitates copyright violation, do we?

Look. You all are going to have to get over the business model of rigidly controlling the copying of media and charging customers for each copy. It is a business and legal model that will fail. It was technologically appropriate for the industrial age and worked well in the past. But it is technologically and morally infeasable here in the future. It will not work, and insisting it will work if only everyone would agree to make it work, won’t actually make it work.

And that’s because people don’t think making a copy of a digital work is a big deal. And that’s because technologically it is not a big deal. You can give everyone a box that creates free goods every time you press a button, and make it illegal to press the button, but that’s not going to work. It’s too easy to press the button, and arguments that when you press the button you’re in some unclear way harming society in the aggregate won’t help.

It is a classic case of the tragedy of commons. If everyone copies shit for free, then there won’t be as much free shit for everyone. But it is still rational for each individual to copy shit for free because one guy refraining from copying just means more free shit for everyone else. Technology has changed was was a previously enclosed, privately controlled enterprise into a commons. That is a problem for creators but it’s awesome for consumers, until the creators give up creating. But insisting on the old model won’t magically make the old model work, it just makes ordinary people’s everyday media consumption technically against the law.

68

Hahahahaha
“workable” :rolleyes:

And to whom are these royalties to be paid?
More importantly, to whom and how are these royalties to be disbursed?
How would the amount be determined? What if IP theft disappeared? Keep collecting?

I think mass media copyright holders just have to face the same realities that newspapers have had to be dragged kicking and screaming to accept. In the new digital marketplace your product isn’t worth what it used to be worth.

69

For your point and Lemur866’s, wasn’t their a compulsory license fee tacked on to every blank audio cassette and rolled into the total price? (Back in the days when the kids still made mix tapes.) IIRC (because I’m too lazy to look it up) the fees went to either ASCAP or another consortium of music production companies, and were meant to partially compensate music copyrights’ holders for the unauthorized copying that would occur after a portion of each blank cassette sale. I guess you could set up a similar regime for whatever new technology rolls down the pike.

But that’s still a long way from a prior restraint on that technology, which is what I think Mr. Oman is arguing for. We don’t do that for any other non-infringing goods, by the way. The U.S. does interdict goods that infringe U.S. patents, trademarks, and I believe, copyrights too. But they actually have to be found to be infringing, not just have the potential to facilitate infringement. Am I wrong on that? I thought that prior restraints on developing technology was reserved for stuff like advancements in atomic energy/weaponry, that sort of thing? (There are restraints on exporting technologyfor one reason or another.) Not something that makes it easier to copy and distribute “Breaking Bad.”

As to discussions of copyright term and scope, don’t we have to address the different underpinnings of Continental copyright law (Droit Moral) and U.S. copyright law (Art. 1 Sec. 8: limited monopoly meant to reward Artists and thereby encourage the production of more works.)? Sure, signing onto Berne harmonizes the U.S. with the rest of the world, and generally harmonization is a good thing, but I’m not sure of its merits when both systems come from different ways of viewing the apportionment of rights and property. Keying the term off of the life of the artist makes sense if you view copyright as just being another one of the rights an artist has in their work, but not necessarily so if you view copyright as a unsavory—monopolies are generally frowned upon—but necessary carrot. Renewal makes no sense if the term is viewed as flowing from the artist, while the utilitarian older U.S. view used renewal as an opportunity for both the artist to renegotiate rights, and let the public reap early the benefits of non-commercially viable works. (If they were viable, the rights’-holder should have renewed.)

The history of U.S. copyright terms, I think disagrees with the notion that the current terms are in any way natural or expected. We’ve gone from 28+28 in 1909 to Life + 70 now, 125 for corporate authors. (And that only until Disney feels its stuff is coming towards the public domain again.) That doesn’t strike you as a radical tilting of the field towards the rights holder from the public?

70

If memory serves there was debate then too on just who benefits from such fee collection. The artist or the licensing body?

71

Could you give a few more details about your plan? I’m imagining that a distribution company would pay the creators a set fee and then release a product.

For music, the first person that buys the song could then copy it and offer it on eBay (competing in price with anyone else who buys the song to re-sell it). The only way for the distribution company to retain exclusive rights would be be develop ever more complex copy-protection schemes for their digital formats–something that is very popular with consumers–and still the schemes would be cracked in short order. Since the distribution company would not be making any money unless they competed directly on eBay with sellers whose only cost is cracking the copy protection, they really couldn’t afford to pay the musicians anything . But not to worry, most musicians are motivated by love of music, and will work full-time fast food jobs to rent studio space in order to record.

For films and books it would be similar. The first person that can obtain a copy of a film (illegally under current laws, but we’re getting rid of that exclusive rights bullshit) can offer better-than-BluRay digital downloads on eBay. Two days later that first person will be competing in the free market against a hundred sellers who have purchased and copied his digital file. It’s a great benefit for consumers. There may not be a lot of new commercial films (or books or games) made, but ehh, there are already a lot out there, and college dropouts will be producing new things just for fun.

And we’ll all be using open source operating systems and freeware to watch these movies, because (I’m assuming) OSX and Windows and all other software, will be sold on eBay for giveaway prices, and commercial software companies will not be able to stay in business.

That does sound like a fun experiment for society. Perhaps all those uppity artists (and software writers) could be sent to agricultural collectives for re-education.

72

As others have said, any exact number is somewhat arbitrary. But, lifetime+70 years does a decent job of covering the lives of the creator’s spouse and children.

I’m much more sympathetic to the idea of Christopher Tolkien controlling (and benefiting) from his father’s work, than I am to tossing the rights into the wind so that everyone can try to make money off LOTR in any fashion. And I suspect that JRR would approve of his son’s efforts to honor and expand on his legacy.

And as I mentioned upstream, it’s good for patents to expire in timely fashion, because technology absolutely benefits society, but copyrights are different. It doesn’t really hurt society if there isn’t free access to a creative work. If the question is “Should Christopher Tolkien control the LOTR brand name, even though I just thought of a neat way that I could make money by repackaging LOTR’s characters?” My answer is Chris should have the say-so.

As for why the copyright shouldn’t just keep on going for ever and ever to the grand kids and great grand kids; ehh, enough is enough.

73

The actual brief.

I’m having a really difficult time with the massive difference between the allegations in the OP and the actual brief itself.

74

Because Disney hires very good lobbyists.

75

If you’re arguing that the sole material issue is that European copyright policy is driven by Disney lobbyists, and that that’s the beginning and end of it, then I can’t really see where there’s a rational discussion to be had.

Remember, when Disney’s oldest cartoons start dropping into the public domain, it’s going to be works that do not bring them much revenue today. And what will be in the public domain will only be those early cartoons. Disney will still hold trademark rights in the Mickey Mouse character, so it won’t be open season on Mickey Mouse.

76

Other than hyperbole, what are the significant differences between the OP and these quotes from the brief?

There wouldn’t have been any VCRs, DVRs, or recording cassette machines, if what he’s advocating in this quote had come to pass in the past. Further, despite his protestations of the exact opposite, don’t the various Satellite Home Viewer Acts and the cable regulations placed in the ‘76 Act, mean that the rights’ holder has had to go lobby Congress to bring the new technology under the copyright umbrella, and not the reverse? We currently don’t follow the model he’s advocating of, “It’s banned, even if the law doesn’t explicitly cover you, until you get Congress to carve you out an exception.” He wants Congress to have the ability to pass judgment on all new technology, if it has the possibility of causing infringement of any of the bundle of rights within copyright. This strikes me as being a gigantic brake on technology development in this country, if his view is implemented by Congress.

I’m also having a problem reconciling these two statements from later in the brief:

If it doesn’t come within any exception, how can it be a loophole? Moreover, if Aereo’s technology is as he describes—a carefully crafted attempt to be technically legal—this is exactly how new technology is developed and allowed in the sister IP regime of Patents.

Christ, I like IP. I think there should be copyright and that authors need to be compensated for their works, and that such compensation ultimately enriches us all. But his brief strikes me as one hell of an attempted power grab in the shifting balance between incentives to artists and the public’s right to the work that IP is all about. (Not that he isn’t following the way the balance has been shifting over the past 40 years…) If Aereo’s business model and technology is, in practice, committing vicarious copyright infringement, yet isn’t within the ambit of the Copyright Act and cases interpreting same, then the answer is to amend Title 17. Not to have a court stretch the Act to cover the conduct. And certainly not to have Congress (or the Copyright Office, as an instrument of Congress’s delegated power) serve as a prior restraint on any technology that might infringe a copyright in the future.

I need to go read some other treatises and commentaries on copyright to develop my opinion on this further. (Patry’s, “How to Fix Copyright” looks really interesting, FWIW.) But I don’t see the OP as being way out of line with his comments, considering these brief quotes.

77

One is a legal argument meant to persuade a court to limit a prior case to its facts and the other is taking one quote and expanding it beyond its actual meaning in the brief.

Not following you. Retransmissions, even if done on the internet, are a “pubic performance”, just as retransmissions by satellite or cable were.

Again, you’re taking one statement in a legal brief out of context and expanding it beyond a reasonable reading.

Aereo believes it’s re-transmission fits the loophole in the Cablevision case, but Oman is saying it doesn’t. And so does Cablevision. I don’t understand why you see a conflict.

Yes, it’s “new technology”. Oman is arguing that simply being “new technology” doesn’t mean you can invalidate copyright protections.

As the brief stated: “Most significant, for purposes of this case, Congress adopted a broad definition of a public performance in Section 101 to include transmissions to the public by “any device or process”. The fact Aereo has a new method of re-transmitting the copyrighted material, doesn’t make it a non-public performance.

I too could brush up on this stuff, but, to be honest, it doesn’t exactly intrigue me. But nothing I read so far makes me conclude that Oman is advocating something as outlandish as the OP seems to think. It seems pretty clear that Oman is confining himself to the Aereo case and the statutory definitions in the copyright law and not advocating some kind of massive shift in copyright law.

78

I really mean it as more of a thought experiment. You’ve listed a bunch of ways artists (not distributors, I don’t care about them) will get screwed if there is no copyright. But, everything you say is already true, just illegal (after criminalization of copyright violation in the US and other countries). We do live in a technological world where the only impediment to copying media is legal. Previously, the physical act of copying was enough of a barrier to prevent casual copyright violation. Think of the difference between copying a DVD today to give to a friend, versus copying a book (or play performance!) in 1912 to give to a friend.

If an artist can figure out a way to make enough money to continue producing in a society in which the artist can’t control the copying if his work, then that artist is going to win the future. I don’t claim to know the answer. I also didn’t invent the iPhone marketing, Google search, or Facebook, which demonstrates pretty conclusively that there are lots of great ideas out there that I don’t have, but other people might.

The idea of a tax on media to fund artists is a fine one, except that the companies who collect that tax, for example on blank CDs in Canada, have a very poor record of actually distributing the money to artists. Actually, all of the talk of “won’t somebody think of the poor artists and content creators” is disingenuous, because the drivers of these laws are the large distribution companies and their trade organizations, who have a history of not paying artists, and are often sued (and settle) large amounts with actual artists for unpaid royalties, etc.

What I genuinely would be in favor of is a copyright law which works something like the following. All works have an automatic copyright of 10 years. At any time during those 10 years the producer of the work can register it for a fee to extend the copyright for another 10 years. The fee should be large enough to cover the cost of administering the system, but small enough that if the work is actually earning money, it won’t be that big of a deal. I’m thinking in the $100s-1000s. The registered works can then have their copyright extended 1, 2, 3, times? For the life of the artist, or 50 years, something like that. The point being, that any work over 10 years old is out of copyright, unless it exists in the registry. If it exists in the registry, then its copyright term will be defined and the agent who can license the work will be on record. Re-registration is required to keep the agents information up to date.

That will get rid of orphan works, because anything that is orphaned will be public domain in a few years. That gives the artists 10 years to make money on their work for free. After that, they have to pay for the privilege of having the government enforce a monopoly on the work. It will never happen, because there are too many powerful groups (and these aren’t the artists) who have an interest in extending copyright indefinitely.

79

…it wont happen because its a stupid idea that is unworkable that is trying to fix a tiny issue with copyright by coming in swinging with a sledgehammer. I have hundreds of thousands of images sitting on my computer. Do you expect me to pay hundreds of thousands of dollars to retain copyright to those images? The US already has a system where you have to register your copyright on your images to increase the protections in the United States and the overwhelming majority of photographers world wide do not use it because it involves uploading our images to the US government and paying the US government money.

Who is going to run this system you propose? Who is going to take the money? This has nothing to do with powerful groups wanting to extend copyright indefinitely and everything do to with your idea being a dumb one. Like every “great new copyright idea” it would hurt the little guy: artists and photographers and singers much more than the big corporations. I suggest you put a little bit more thought into thought experiment.

80

Almost none of those images have any value at all (even if you are the next Ansel Adams). If you want to keep them private, then you can do so and there’s no need for copyright. If you want to make money off of them, then they must have some value and you can afford to pay the fee.