• Law Student

    Anyone know where to find an mp3 of the argument?

  • three blind mice

    More broadly, this scheme makes an end run around fair use: if it were legal for you to send a sample of a TV program to a friend in order to discuss it, you wouldn�t be able to.

    this is such tired rhetoric. c’mon digital rights people. do try and demonstrate a little bit of the creativity you are always
    talking about.

    the broadcast flag keeps you from making an exact digital copy, but you can still set-up an analog recorder and tape and exercise all the same “fair use” rights that ever existed.

    without the broadcast flag the transition to digital creates an enormous and unwarranted expansion of “fair use” enabling the public to make exact copies capable of undermining the primary commercial market for authors and artists.

    it is, at best, misleading to present the introduction of the broadcast flag as a restriction on existing “fair use” when it preserves the status quo under which “fair use” was developed.

  • Stephen Cochran

    Well, Mice, there you go again. Exactly where in fair use doctorine does it state that inexact copies are the only type allowed? There is no expansion to fair use if HDTV is broadcast “in the clear”.

  • http://www.robmyers.org/ Rob Myers

    Indeed, prior to the event of digital technology, was there ever any such thing as an exact copy? Should analog “copying” even be covered by a “copy”right?

    When video first allowed copies of TV programs to be made, was this an enormous and unwarranted expansion of “fair use” (love the scare quotes)? I’d say going from no copying to any copying is a larger leap than going from good copying to better copying!

    Yet the mice accept and even recommend the historical great leap of video in order to argue against the lesser contemporary leap of difgital media. This is equivocation at best.

    The baseline shift here is not a slight increase in quality it is a total reduction in portability.

    The mice, like so many IP shills, accept the victories of the past as a given in order to downplay the losses of the present. I can just see them arguing against betamax: why do we need analog video recorders? We have cine cameras!

  • three blind mice

    Yet the mice accept and even recommend the historical great leap of video in order to argue against the lesser contemporary leap of difgital media. This is equivocation at best.

    the lesser contemporary leap of digital media?

    rob meyers, this, sir, is an understatement of enormous proportion.

    what we “recommend” is to maintain the status quo of “fair use” that has developed under several upheavals of technology. this is what the digital broadcast flag does.

    and we reject the baseline assertion that the introduction of such a technical requirement represents a “taking away” of any existing “fair use” rights as the librarians would mislead the court into believing.

  • Rob

    I think you’ve missed the basic flaw in the mice’s argument. Sure, maybe today we can get around the broadcast flag by just using our good old pre-flag VCR’s. The problem is, every device manufactured from July 1 onward MUST RESPECT the broadcast flag. Doesn’t matter if it’s analog or digital, as I understand it. So when your good old VCR breaks (as they do eventually) and you go out to buy a new one, at that point, your “analog hole” is closed. This is not even considering that at some point, VCRs will no longer be manufactured and you’ll HAVE to go digital. Reel-to-reel audio tape is no longer being manufactured, and it’s getting pretty hard to find vinyl LP players. My parents have a bunch of 78-RPM LPs that they can’t play because no one makes players for them anymore. Old tech does die out.

    Also, the mice are conveniently forgetting about the unconscionable restriction of technological progress their “solution” represents. We have all this fancy-dan new tech, but you can only use it if you give up your rights? Don’t want to give up the rights, then stay in the 1990′s? What kind of society is that? Why should technological progress be at the expense of freedom?

    Don’t try to pull the wool over my eyes and say that I will still have all the “fair use” rights I’ve always had; that’s baloney. The broadcast flag will prevent me from recording content streamed or broadcast into my home and then doing whatever I want with it. That’s a reduction in rights, little friends, and while you may dispute that I ever had that right in the first place, I’ve been able to do it with broadcast television since the 1970′s. Now I won’t. That’s at the least a reduction in freedom, if not in rights. Whose freedom is more important, mine or some corporation’s? What does America stand for?

    I dispute the mice’s contention that the ability to make digital copies undermines the primary commercial market. That’s a bald assertion with no supporting evidence, just a bunch of propaganda from the content industry. The technology of copying became much more accessible in the 1980′s and 1990′s than it was in the 1970′s; but that was 20 years ago, so to the extent than any damage might be occurring it can’t be said to be any different in the digital media era than the analog one. It’s ridiculous, filesharing of mp3s (for example) is generally at reduced sampling rates far inferior to CD-quality, yet file-trading remains as popular as ever.

    No, the primary commercial market will do just fine, just as it did between the invention and wide acceptance of the VCR and the advent of Macrovision and similar “protection” schemes, and as it did after the commercial success of cassette tape, and as it does today even in the face of rampant piracy in Asia. We should not accept the content industries’ efforts to grab total control over the use of their product, which has so many demonstrable downsides culturally and the sole theoretical upside of maximizing their profits.

  • Stephen Cochran

    Mice, this should be simple: Support your argment with facts.

  • http://liberalrob.blogspot.com Rob

    In my fervor to post, I left off the conclusion to one of my points.

    Since filesharing of comparatively low-quality files is so ubiquitous, and the content industry seems to be doing fine even so, why is it so important that we legislate against file-sharing for digital content? I can’t believe that filesharing would suddenly become even more widespread than it already is; how much untapped demand is there? The content industry argument that “we must have content control or we’ll go broke” is just unfounded speculation to justify money-grabbing. They haven’t gone broke, and they won’t.

  • Max Lybbert

    I have to admit that “Three Blind Mice” is correct from a pragmatic point of view — we need more arguments. When a lawyer hangs the entire case on a single argument, the judge may rule against him if that argument isn’t persuasive to that particular judge.

    I think the fair use argument is valid. My wife has been collecting Pepsi bottle caps and getting the iTunes that come with every third one. Well, iTunes has defined fair use as seven copies and five computers. Where was that written in the law? Nowhere.

    Then again, as a Coase Theorem advocate (now that I’ve read Coase himself and have a better handle on what the Theorem is about), I have to admit that this (Apple’s Fair Play technology) is exactly the kind of behavior to expect from a free market — whatever the law is, it’s possible to negotiate around it. And, in a free market, the response is predictable — other companies and people offer the same commodities under different rules.

    But it wasn’t a market decision to create the Broadcast Flag, and it was impossible to negotiate around. So, there’s my understanding of a Coase Theorem argument against the Flag (i.e., it is impossible to negotiate around if the government is wrong).

  • three blind mice

    Mice, this should be simple: Support your argment with facts. – Stephen Cochran

    we should be asking you to so the same.

    the MPAA estimate their members loose 3 billion dollars per year. you’ve certainly seen such similar figures coming from the RIAA, the United States Trade Representative, and other sources so we won’t google them for you. try “USTR special 301 watchlist” and see what comes up.

    on a more anecdotal level, metafilter recently posted a letter from the producers of a sci-fi series called “battlestar galactica” emploring their fans to not download the series, but to watch it on TV.

    “You see, we need RATINGS which means we need eyeballs in front of TV screens that advertisers can measure. The more episodes get downloaded and digitally copied and passed along and copied again and passed along and copied yet again and passed along yet again, it creates a dangerous situation where a lot of people are watching and enjoying Galactica, but not seeing it when it counts — namely on the air.”

    some on your side actually make the claim that downloading INCREASES the content owner’s revenue which would make their attempts to introduce the broadcast flag to thwart downloading nothing more than an ignorant and spiteful self-inflicted wound.

    those silly content owners.

    we believe a reasonable interpretation of the broadcast flag is that the content industry is to its very core pecuniary and that real financial losses are what motivate their lobbying effort.

    we take it as a fact that digital piracy deprives the content industry of a substantial income.

    we take it as a fact that given the chance dishonest people will do dishonest things – we believe banks have vaults for reasons other than paranoia – we believe that you don’t write your PIN code on the back of your bankomat card – and living in london we believe that that locks and bars and encryption and PIN codes and broadcast flags are necessary accoutrements of modern day life.

    no friends, the burden of proof in on you to show that free and unfettered digital copying does not produce any negative economic effect.

  • Stephen Cochran

    Mice, your orignal assertion is that eliminating the broadcast flag is an unprecedented expansion of fair use. And yet none of your statements come anywhere near the issue of fair use.

    You quote one-sided and unsupported “damages” to the music and film industry. These figures are widely known to be wildly inflated. They assume that every illegal copy is a lost sale, and that’s just not true. But even if it were true, it has no bearing on fair use doctorine.

    Don’t dodge the issue, support your argument that eliminating the broadcast flag expands fair use. That’s what you said. Support it with facts.

  • Zongo

    Like most lobbying from the “content industry”, this is not so much about Fair use (though it might be in strictly legal terms) as it is about resisting the transition from an economy of scarcity into an economy of plenty.

    The industry tries to stick to the obsolete business model it has thrived upon and remain a seller of scarce “para-material” products (by pretending they were selling “content” all along while they were actually selling scarce material supports for the content).

    If and when the industry finally adapts to the fact that there is no substantial difference in cost between selling 1 copy and selling 1 billion copies of a non-material good, it will (hopefully) stop selling the contents themselves and start selling the convenience and practicality of access to the contents.

    When all is said and done, the industry will probably have changed quite a bit, but i’m quite sure it will have globally grown in the process.

  • http://liberalrob.blogspot.com Rob

    Actually, the mice said that the ability to make perfect digital copies was the “enormous and unwarranted expansion of fair use”; and anyway the broadcast flag would make no difference in our fair use rights because we could always just use analog recorders. Which I think is short-sighted, but let’s quote them accurately.

    The mice also squeaked:

    the burden of proof in on you to show that free and unfettered digital copying does not produce any negative economic effect.

    Now wait a minute. The burden of proof is on US to show that your side’s proposed legislation is unnecessary? That’s not right. The burden of proof is to show that overly restrictive new legislation and/or rulemaking is REQUIRED. And you haven’t done that, you’ve just cavalierly dismissed our concerns as overblown. The content industries’ argument in favor of the flag is just a bunch of allegations that all their woes are due to those nasty pirates and if only we got rid of them all would be peaches and cream. There’s no proof there either, just a bunch of “studies” they did themselves (gee, why would they lie?). Meanwhile, other potential sources of declining revenue are completely discounted (less releases every year? poor content and high prices driving consumers away? increased entertainment options diluting the marketplace?).

    Re: the Battlestar Galactica thing, the missing point is that the only thing that counts for ratings is what is watched in the households used to develop the ratings. I could watch live and tape every show and watch it end-to-end 6 times daily and it would have zero impact on the ratings; I’m not a Nielsen or Arbitron (or whatever) household. So really, that is a ridiculously weak argument against file-sharing. Also, what does it matter to them whether I watch the show live on the air or record it and watch it later? I still watched it. As artists, that’s the point of making the thing, right? To get people to watch? If it’s not that, then what is it?

    we believe a reasonable interpretation of the broadcast flag is that the content industry is to its very core pecuniary and that real financial losses are what motivate their lobbying effort.

    Change “real financial losses” to “perceived financial losses” and I’ll agree with that. There is no repeat no independent proof that those losses are real, and much common-sensical analysis that if all piracy ended tomorrow very little of that “loss” would become revenue.

    we take it as a fact that digital piracy deprives the content industry of a substantial income.

    It’s a mistake to take unproven allegations as facts.

    we take it as a fact that given the chance dishonest people will do dishonest things

    And we’re ALL dishonest, right? So we ALL need to be prevented, pre-emptively, from doing any dishonest things. Reductio ad absurdum, why not just gas the whole planet; that would put a stop to piracy.

    …and living in london we believe that that locks and bars and encryption and PIN codes and broadcast flags are necessary accoutrements of modern day life.

    …and traffic cameras that automatically dole out tolls for driving downtown, and RFID chips implanted in your cars to track your movements, and on and on. It’s touching how much we all love Big Brother. Maybe mice are used to living in laboratory mazes and having their every action catalogued, indexed, filed, studied, and reported to their masters. That’s not the kind of world I think we should be creating.