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[Bal]

Is this where we talk about SOPA? I'm going to anyway. The House Judiciary committee adjourned without voting and without setting a date to reconvene rather than passing it at the speed of money, which is a fine thing indeed, though the bill is far from dead.

Wired article for details

EDIT: HAHA DISREGARD THAT I SUCK COCKS

[Büge]

http://www.techdirt.com/articles/20111214/04100017081/chris-dodd-resorting-to-outright-lying-desperate-attempt-to-get-sopa-passed.shtml

[Mongrel]

Only matters if someone relevant calls him on it.

Which he knows of course.

[Thad]

Wyden (D-OR) threatens filibuster -- which isn't exactly news in the "fucking everything is automatically filibustered" world we now live in, but.  Can he get forty-one votes?

Course, given that he's sponsoring the OPEN Act, that just means we'd probably end up with that instead.  But at this point "Do something slightly less crazy and declare victory" is the best I can hope for from Congress.

[Brentai]

Exactly how many bills are written for the purpose of making the populace feel better about being bent over by another bill?

[Bal]

Clearly the answer is just to abandon copyright law entirely, or maybe just punish the people they actually catch stealing. Whatever.

[Thad]

All right, I'm trying to steer the debate board back away from ambiguous one-liners, so could you elaborate on that a bit?

First, I can't tell how sarcastic you're being when you say "abandon copyright law entirely".  I certainly think we should have copyright but it should be a lot damn shorter than it is now.

I'm also all for "just punish the people they actually catch [infringing]", but you've argued rather the opposite in every conversation we've ever had about DRM.

Stross has had a load to say on the subject, most recently in the comments on his Cutting Their Own Throats post (about how Amazon's DRM is going to force ebook publishers into a single-vendor world).  He opposes copyright registries for reasons that should probably be obvious, particularly in the world we live in today.  (This post copyright Thad Boyd, 2011, and no, I don't have to file for it to claim it.)  He also argues against "life of author" copyright terms, making the tongue-in-cheek argument that it creates an incentive to murder authors.  (The more reasonable argument against it is people like Philip K Dick and Stieg Larsson, who left no money to their heirs but left them copyrights that turned out to be incredibly valuable after their deaths.)

The original terms for copyright were 14 years, renewable for another 14.  I think that's a good model, though of course renewal requires a registry system, the problems with which I've already alluded to.

As far as compensation, Stross recommends in that thread and elsewhere that legal enforcement should stop entirely and, instead, everybody's ISP bill should budget an amount to be distributed among rightsholders, with that amount being divvied up based on tracker stats.

Now, that suggestion opens up a different can of worms: how can you be sure your numbers are reliable without invading users' privacy?  In other words, how can you know that nobody's gaming the system to artificially inflate download stats, unless you spy on users?

I think that problem may be surmountable (something like a randomly-issued fingerprint for each user at the beginning of the month, automatically deleted at the end of the month).  Certainly it wouldn't be easy, but I think it's possible -- which I can't say for making the current system work.

[Thad]

Doctorow's got some links to why SOPA is untenable from the basic DNS resolution standpoint.

Last week's SOPA hearings were punctuated by facepalming moments in which learned members of the House Judiciary Committee dismissed the distinguished engineers who say the bill weakens Internet security. They said things like, "I'm no nerd, but I just don't believe it."

Well, you don't have to be a "nerd" to understand a) what DNSSEC is; b) why we desperately need it (or something like it) before the Internet collapses along with the creaking public key infrastructure; and c) how the insanity in SOPA will tank that effort. Stewart Baker at the Volokh Conspiracy lays it out in small, easy-to-understand words.

    Unfortunately, the things a browser does to bypass a criminal site will also defeat SOPA’s scheme for blocking pirate sites. SOPA envisions the AG telling ISPs to block the address of www.piracy.com. So the browsers get no information about www.piracy.com from the ISP’s DNS server. Faced with silence from that server, the browser will go into fraud-prevention mode, casting about to find another DNS server that can give it the address. Eventually, it will find a server in, say, Canada. Free from the Attorney’ General’s jurisdiction, the server will provide a signed address for piracy.com, and the browser will take its user to the authenticated site.

    That’s what the browser should do if it’s dealing with a hijacked DNS server. But browser code can’t tell the Attorney General from a hijacker, so it will end up treating them both the same. And from the AG’s point of view, the browser’s efforts to find an authoritative DNS server will look like a deliberate effort to evade his blocking order.

    The latest version of SOPA will feed that view. It allows the AG to sue “any entity that knowingly and willfully provides …a product … designed by such entity or by another in concert with such entity for the circumvention or bypassing of” the AG’s blocking orders.

SOPA-Rope-a-dope (via Interesting People)

A couple more from Dyn:

SOPA: Why Do We Have To Break The DNS?
SOPA: What You Should Know & Why Dyn Opposes It

[Brentai]

Soo... if I'm reading this right, we're looking at a massive legal battle where Apple and Microsoft (and Sun and Oracle and...) team up to battle the U.S. Government, or a situation where any terrorist, spy or idiot Anon can knock America off the internet, or both.

Actually I'm kind of excited about this now.

[Bal]

I was being glib. Copyright law should be reviewed and the Mickey Mouse extensions revoked, or some provision for brand identifying figures, or perhaps actively used intellectual property be made. After all, Mickey Mouse isn't defunct, and it isn't because of their lobbying.

As for DRM, our conversations have never been productive. Neither of us like it, however I am willing to accept that it will inevitably occur, and choose the lesser evils where I can. There are in fact several games, mostly from UbiSoft, that I've been planning to by but chose not to because of some kind of DRM that crossed the line, and no, I can't tell you where the line is. It's where the DRM bugs me enough that I'm unwilling to put up with it for the product, which is somewhere between none and sub-dermal implants.

Regarding punishing infringement, I think that's the way to go. During the hearings I watched live on Thursday it was brought up that we don't go after the Postal Service for shipping something illegal, we go after the person who posted it. This is basically how I feel about copyright infringement. Though I must admit that when it's media groups and not actual artists complaining I have trouble mustering even crocodile tears. 

[Thad]

I was being glib. Copyright law should be reviewed and the Mickey Mouse extensions revoked, or some provision for brand identifying figures, or perhaps actively used intellectual property be made. After all, Mickey Mouse isn't defunct, and it isn't because of their lobbying.

I think you're confusing copyright with trademark.  Trademarks are based on active use and can be renewed indefinitely.

Copyright, on the other hand, has nothing to do with whether or not a property is "defunct".  The Jungle Book wasn't defunct when it went into the public domain; if it were, Disney wouldn't have started making a movie out of it the very same year.  (This, Stross acknowledges, is the main hazard of short copyright terms: companies sitting and waiting until something goes into public domain so they don't have to compensate the rightsholders.)

The public domain isn't just for abandoned works.  If it were, the works of Shakespeare would still be under copyright.

The reason copyright expires is so that a single entity can't keep a monopoly on an idea -- an important piece of art or culture.

Indeed, flip it around -- the reason copyright EXISTS is so that a creator can TEMPORARILY claim a monopoly on an idea, an important piece of art or culture, in order to be compensated for that idea and therefore have incentive to publish it in the first place.

So no, Disney's welcome to keep its trademark on Mickey Mouse, but I have absolutely no sympathy for the idea that Plane Crazy and Steamboat Willie should still be held under copyright.

I believe that not only should copyright terms be shorter, but that corporate copyrights should expire SOONER than individual copyrights instead of later.  This will actually incentivize corporations to grant ownership and favorable contracts to artists.  (I also think work-for-hire agreements should come with a royalty clause that's automatically triggered above a certain threshold, but I think that's a separate argument.)

As for DRM, our conversations have never been productive. Neither of us like it, however I am willing to accept that it will inevitably occur, and choose the lesser evils where I can. There are in fact several games, mostly from UbiSoft, that I've been planning to by but chose not to because of some kind of DRM that crossed the line, and no, I can't tell you where the line is. It's where the DRM bugs me enough that I'm unwilling to put up with it for the product, which is somewhere between none and sub-dermal implants.

And if you claim I disagree with any of that the you are mischaracterizing my stance.

The distinction between your view and mine is precisely where the line is -- and, I suppose, just how "inevitable" DRM is.  It's pretty well dead in the music industry and I think the other industries must eventually follow, it's just a matter of how soon.

(I suppose that software is the one medium where DRM actually may persist, because they're the one medium where it could, hypothetically, actually work -- in the case of a pure streaming system where the computer/console you use is effectively a dumb terminal and the program is never copied into memory but run entirely from a remote server.  Due to its interactive nature, software COULD actually be "protected" this way -- but no other medium can.  You stream a movie, well, you've just copied the entire movie into memory, and there's going to be SOME mechanism for the user to extract that information no matter how you obfuscate it.  Same with books, music, every form of passive entertainment.)

(Tangentially, software should be subject to much, much shorter copyright terms than other media, because its value to its owner degrades quickly while its value to the public degrades more slowly.  What the fuck is MS doing with NT 3.x code?  What, by contrast, could a group of enterprising hackers do with it?)

Also, you've a tendency to tell me that if DRM inhibits my ability to play a game the way I want to, then I'm doing it wrong, and am wrong for not spending money on a thing that doesn't work the way I want it to.

Regarding punishing infringement, I think that's the way to go. During the hearings I watched live on Thursday it was brought up that we don't go after the Postal Service for shipping something illegal, we go after the person who posted it. This is basically how I feel about copyright infringement.

Too vague -- because EVERYBODY is an infringer.  You are, I am, and, as YouHaveDownloaded has demonstrated to nobody's surprise, so are the RIAA and MPAA.

It is literally impossible to sue every infringer.  So Big Content has two choices: go after random targets, or prioritize.  (Or both, I suppose.)

Obviously the more rational choice is to prioritize, to go after the big targets.

Which brings us to:

Though I must admit that when it's media groups and not actual artists complaining I have trouble mustering even crocodile tears.

And this is precisely because the biggest copyright infringers ARE the fuckers filing the suits.

The YouHaveDownloaded stuff is fish-in-a-barrel, but I've recently posted links indicating much more serious infringement: Universal's illegal sale of songs it didn't own the rights to, its repeated fraudulent takedown notices, various corporations fraudulently claiming copyright on public domain videos on YouTube...

I really can't see lawsuits as a way to effectively enforce copyright, precisely BECAUSE they are heavily stacked in favor of the rich companies that are actually responsible for the most egregious abuses.  Even under the laws they've written.

[Bal]

I'm not really in the mood to have another unproductive argument with you, but yes, where we draw the line on DRM is the crux of our discussions, with some sidebars about the inevitability of the thing itself. I don't remember ever telling you that you were "doing it wrong" but feel free to quote mine to find it if I did.

[Thad]

Mainly was referring to the "You are not buying Street Fighter to play it offline" bit.  But yes, let's get back ontrack.  Anything to add to the bits of my post that are about general copyright, or are we about on the same page?

I wonder what the fallout would be from a system that automatically granted 14-year copyrights but allowed 14-year renewal through a registry.  Could hypothetically create a huge pile of paperwork, but really the vast majority of people aren't going to bother registering stuff that they created 14 years ago, and the ones who do are likely the same people who are ALREADY registering copyrights rather than just trusting to automatic copyright.

Alternately, "life of creator plus 10 years" is one that frequently gets thrown around, and is perfectly fair for cases of human authorship, but once again fails to address corporate authorship.

Seems to me that corporate authorship could work with the "14 years, renewable once" terms -- and force a renegotiation with the creator(s) when renewal time rolls around.  I think that's pretty close to how things worked back in the 18th century.

[Bal]

I'm more or less on the same page with copyright, though admittedly my knowledge is mostly based on the fact that nothing will ever enter the public domain again thanks to Disney, which is stupid, but also a vague sense that the old copyright system doesn't really apply anymore either.

[Thad]

I actually think the original system is pretty fucking robust, and the changes required to make it work in the modern world are far more modest than the ones we've actually passed over the past few decades.  As I said, automatic copyright without the need for registration was the most important step in modernizing the law, and Europe did that back in 1886.

The Sonny Bono extension is the most egregious and abusive example of a copyright extension, but of course it's not the first.  All these cases with creators' heirs suing for rights is because of the '76 Act.  You can't wade into any thread on the subject without tripping over a dozen people who don't understand why creators have the right to terminate a copyright transfer after 56 years -- it's because under their original agreement, 56 years was the duration of copyright; when Congress extended the duration, it changed every single copyright sale on the books and had to include an escape clause for the creators whose contracts it had just unilaterally renegotiated (or, in most cases, their heirs, because seriously, 56 years?).

Course, they added reversion to subsequent rights sales, which is cool and all, but again, 56 years effectively means it's worthless to the actual creators.  Hence my suggestion that it occur at 14 like in the Old Days.

None of that has anything to do with enforcement, but again, I think we've reached a point where enforcement is never going to be effective.  Shutting down Napster didn't put an end to music piracy -- neither did shutting down Grokster, Morpheus, KaZaA, or LimeWire.  The best solution to the music piracy problem was and is the rise of iTunes -- and not because of its DRM (which WAS extremely useful for giving Apple a monopoly on the portable music market, but not much else).  Or, alternately, as Stross posits, a shift toward artists treating albums as advertising for their concerts.

All of which circles back around to SOPA, and where I came in on this: I'm outraged at the gall of our corporate and political overlords, but not in the least bit concerned that it will affect my day-to-day life or result in any actual censorship beyond the usual whack-a-mole lawsuits.  The DNS fallback stuff is troubling, but ultimately one of two things is going to happen: either the telecoms are going to tie this thing up in the courts until it's tossed out, or, less likely, the courts WILL grant some damn fool content company's injunction and shut down a major ISP and see what comes out of the hornet's nest.

[Bal]

In terms of revenue, albums have always been advertising for the artists and money for the music industry, excepting signing deals and indies, obviously.

SOPA is an economic disaster waiting to happen to a world that barely has an economy, laying aside all the implied or overt loss of freedom. Most distressingly, passing SOPA will give every single government in the world the warrant to do the same or similar, and the idea the governments don't like creating new powers for themselves is just silly. See: Every single instance of "temporary special powers" ever, except Lincoln.

[Pacobird]

I actually think the original system is pretty fucking robust, and the changes required to make it work in the modern world are far more modest than the ones we've actually passed over the past few decades.  As I said, automatic copyright without the need for registration was the most important step in modernizing the law, and Europe did that back in 1886.

I actually wrote a 25-page position paper in law school arguing that automatic copyright was bad for copyright holders (provided a registration-required regime made it as easy as possible to register one's copyrights), because it promoted confusion and thus litigation that wealthy copyright thieves (imperialists, not infringers) are almost always leveraged to win.  I even had a section heading off the potential counterpoint that registration hasn't stopped patent litigation by pointing out 1) the differences between what is copyrightable and what is patentable and how that promotes litigation in patent in ways it wouldn't in copyright and 2) that the amount of money at stake between an important patent and an important copyright isn't even remotely comparable, so the actual incentive to litigate a copyright issue is by its nature much less.

I don't remember the deets except I got an A and thus it served its purpose and could safely be forgotten about.

[Thad]

I don't see any reasonable alternative to automatic copyright in this century, for reasons I alluded to earlier: the output of creative works is truly STAGGERING, and there is quite simply no sensible mechanism capable of registering any but a tiny fraction of them.  And the ones most likely to take the time to register are precisely the imperialists you speak of.

If Universal wanted, for some damn reason, to rip off a bunch of posts from my blog, then all right, I grant that the deck's stacked in their favor.  But it would be stacked in their favor if I hadn't been granted automatic copyright, too.

And of course we DO have a copyright registry, it's just not mandatory.  It's available if you want to hedge your bets and make SURE there's a paper trail proving the content was yours first.

[Pacobird]

yeah, the option of registering copyright still existing as an added protection was part of my argument, iirc.  Before we signed on to Berne everybody with any intention of going public with a creative IP was on notice they had to register before they could safely start making money.  By acknowledging that registration still has protective value despite the fact that you don't need it, we're basically saying automatic copyright's just a trap for the unwary.

[Thad]

It can be, particularly in the disproportionate cases you mention.

Among people on equal legal footing, though, I'd say it does the job all right.  If somebody with the same resources I have tried to repurpose my work, I'm confident I could prove it was mine.

It DOES make things difficult for orphaned works, and that's something we seriously need to deal with.  There have been a lot of decent ideas on how to allow orphaned works to enter into the public domain -- I generally like Google's argument on the subject right up until the part where it grants Google a complete monopoly on scanning and publishing said orphaned works.