April 11, 2005  ·  Lessig

The OECD has released a fantastic new report on “Digital Broadband Content.” I saw a draft a while ago, but it was embargoed at the time, and then, delayed in its release by those who didn’t like its very balanced message. Unlike those pressing the “US view,” there’s lots in this document that advances the debate quite well. Some bits I would disagree with, and other bits, quibble with, but this is precisely the stuff this debate needs.

One issue that the document frames nicely, but doesn’t quite address: Notice the trade-off between (1) the way we choose to protect IP and (2) the kinds of creativity we encourage. (This is a point made well by Terry Fisher in his discussion of “semiotic democracy.”)

If we INDUCE and support the “per copy” model of copyright, for all content, especially video and music, and if we supplement that protection strong DRM, we pollute the opportunity for remix culture to develop. That should force us to ask: is there a way to protect the legitimate IP interests of the copyright holders, without polluting remix culture?

  • Steve Hubbard

    Speaking of the “US View”, the following article may be of some interest to you. It appeared in ‘The Age’ newspaper this morning and covers the attempted making of a short movie under creative commons license. The issue? The ‘actors union’ have, in short, put a stop to production because they can’t control distribution or any recreation of the final product.

    http://www.theage.com.au/news/Outsourcing/Actors-union-shouts-cut/2005/04/11/1113071894581.html?oneclick=true

  • james

    if you thought the content one has been delayed, you should check out how long its taking for the bloody music one to get pushed through! :)

  • three blind mice

    If we INDUCE and support the “per copy” model of copyright, for all content, especially video and music, and if we supplement that protection strong DRM, we pollute the opportunity for remix culture to develop.

    well, this is an odd statement coming from you professor. wasn’t the creative commons license created in order to facilitate the remix culture? what is it about DRM that would conflict with, or impede, the growth of creative commons?

    indeed, an effective DRM regime may even ehance cc’s usefulness and expand its influence.

    yes, DRM may impede illegal, unauthorized mixing, but it is not at all a fair conclusion that it will “pollute the environment for a re-mix culture to develop.” it will just send it off in another vector.

    That should force us to ask: is there a way to protect the legitimate IP interests of the copyright holders, without polluting remix culture?

    professor have you had an epiphany recently? your recent concern for copyright holders and unequivocal stance against piracy seems to have come on rather suddenly. we hope you are not working too hard and getting plenty of rest.

    we submit that the proof is in the pudding. if Grokster has been an experiment, the results are 90% piracy and 10% remix culture. there’s your balance.

    based on these empirical results, your concern about polluting the pristine waters of free culture with a little network control seems out of proporation to your disregard for the toxicity that the lack of network control is causing to copyright holders.

  • Florian Weimer

    I don’t understand why DRM threatens the “remix” culture. Doesn’t the latter go far beyond exact reproduction (which is the only thing DRM interfere with)?

    Copyright protection of ideas, such as plot structure, character profiles, or the arrangement of settings, seems to be more threatening. The important thing for a “remix” culture seems to be the ability to make a cultural reference to another work in a way the audience understands it, without permission from its creator, and without infringing their legal rights. In most cases, it’s completely unnecessary that the reference is a verbatim reproduction, and often, it is even impossible, because the idea is expressed in a completely different way (a movie based on a book, or even a fugue whose theme is based on a pop song).

  • Single Unimpaired Cat

    Mouses:
    your concern about polluting the pristine waters of copyright holders with a little culture remixing seems out of proporation to your disregard for the toxicity that the desire of absolute control is causing to the rest of us.

    The answer to the question is no. There is no way to protect digital content. All those little 1′s and 0′s just lend themselves to be copies too easily.

  • http://gnuosphere.blogspot.com Peter Rock

    Mice:
    but it is not at all a fair conclusion that it will “pollute the environment for a re-mix culture to develop.” it will just send it off in another vector.

    Florian Weimer:
    I don’t understand why DRM threatens the “remix” culture.

    If I am being told that I must run a particular “content authorized” operating system and must use other particular “content authorized” software in order to obtain and remix digital data then such restrictions are polluting the remix culture. I want to remix. Yet I refuse to allow Hollywood to tell me what system I am going to run and what software I must use to share, obtain, and view/listen to content.

    The approach the Mice have shown thus far on this discussion would then be – “Well Peter, you’re shit-outta-luck then. You gotta join ‘another vector’ if you want to participate.”

    “Another vector”? You are joking right? Is this your sly way of avoiding the term “trusted computing”?

    And since I stand by my principles (FOSS only) and also refuse to break copyright law (because I believe in respecting the copyright of the author even if a particular license is archaic and oppressive), I’m forced to sit on the sidelines and watch culture develop without my participation.

    Lessig’s comment has nothing to do with “fair” or “unfair” – it is simply accurate.

  • lessig

    Peter Rock rocks. Nicely put.

  • John S.

    It is not just “DRM” but “strong DRM” that is mentioned. Where that line lies, I do not know, but I just wanted to point it out.

    As I undertand things (may be wrong, not sure):

    CC is about saying “here’s this work we created, you can do W, X, and Y with it, but not Z”

    On the other hand, DRM is saying “here is this work we created, and you can do W,X, and Y with it, but we’re so concerned about you not doing Z that we’re going to significantly impair your ability to do W,X, and Y the way that you want to.”

    Each has behavior that is not permitted – CC is enforced (imperfectly) by the law, and DRM is enforced (imperfectly) by the technology itself, but by the law on top of that.

    Mice, you said “an effective DRM regime may even enhance cc’s usefulness and expand its influence” – Can you elaborate on this point?

  • x

    fsdf

  • ACS

    I dont understand why a DRM that carried out a per copy licence system would threaten re mix culture. Why couldnt the architecture of the remix and distribution software carry the licence or authority to remix and further distribute.

    The real question is then whether you can licence another to grant a licence or whether they need the copyright rights to communicate that work with public.

    And to Single unimpaired cat please not that even Posner recognises that civil society is based on the ability to protect or deal with property as one chooses. To take that away would impair the economy – this is after all the underpinning of property law. Do you want to crash the commercial viability of the internet just because its easy to steal some 1s and 0s.

  • ACS

    Just as a supplement

    I dont think adoption of a per copy system pollutes the oppurtunity for remix culture. It just means that licences have to be attached to each remixers work.

    Not such a big problem is it?

  • three blind mice

    CC is about saying “here’s this work we created, you can do W, X, and Y with it, but not Z”

    On the other hand, DRM is saying “here is this work we created, and you can do W,X, and Y with it, but we’re so concerned about you not doing Z that we’re going to significantly impair your ability to do W,X, and Y the way that you want to.”

    Each has behavior that is not permitted – CC is enforced (imperfectly) by the law, and DRM is enforced (imperfectly) by the technology itself, but by the law on top of that.

    shazam john s. eggs-actly.

    Mice, you said “an effective DRM regime may even enhance cc’s usefulness and expand its influence” – Can you elaborate on this point?

    there is music that wants to be free, music that wants to be re-mixed, and music that wants to be a source for derivative development. this is music that can be released under a cc license.

    this creates a vector (i.e., indication of direction and magnitude) of musical development based on voluntary participation, a cooperative spirit, and lots of kum-bah-yah.

    and there is music that does not want to be free (to summarize the heroic US position). this is music which is released under a restrictive copyright license.

    we think the creator of a work should be able to choose how to release the fruits of her labor.

    we think this choice should not be made for her by the greedy, unimaginative, and loathsome consuming public.

    under a regime of impenetrable DRM, music that wants to be free can be easily identified and made available to derivative “artists” stuck staring at the blank page… ice ice baby. heh. heh.

    and if the CC folks are right and that the re-mix culture can produce anything more noteworthy than vanilla ice and dj danger mouse then the re-mix culture will thrive on it’s on vector.

    music that does not want to be free will wither and die on its own non-innovative vector…. or maybe not.

    the way we three blind mice see it, DRM would permit BOTH regimes to exist and this can only be a good thing. choice for the artists, and choice for the consumers.

    the continued lack of network involvement i.e., no DRM at all, no ISP liability, no responsibility for anyone all of this imposes – indeeds dictates as a matter of de facto law – the less restrictive copyright regime on ALL content.

    this coup d’contenu is killing CC because who needs CC when everything is free?

    the lack of network control is actually harmful to the development of a voluntary re-mix culture because it imposes a vector of musical development on society that is the path of least resistance – copying commercial success.

    no DRM means more vanilla ice.

    *chills runs down the backs of our spines.*

  • http://nerdvittles.com Ward Mundy

    Part of the problem with the DRM debate is that we’ve let the music and movie moguls frame the issues in their terms. I recommend approaching the issue a little differently and, rather than repeating all of it here, you can read “It’s the M-Chip, Stupid” on our Nerd Vittles site.

  • http://gnuosphere.blogspot.com Peter Rock

    Mice:

    this coup d’contenu is killing CC because who needs CC when everything is free?

    I know I’m a fool for wasting my time with this. I really should just read the responses of people who are interested in finding out what is right rather than those that are trying to be right. BUT…

    Your logic is completely absurd. You have (purposefully?) mixed up free as in “freedom” with free as in “no charge”. Remixers are not concerned with “no cost”. They are concerned with the ability to rip, adapt, subtract, and add to, other artists’ work. Being able to illegally obtain art through a p2p network has nothing to do with the Creative Commons. Just because I can easily and freely (as in no charge) obtain a copyrighted work, I still need a progressive and compatible CC license in order to remix and distribute a new work without worry that someone is going to take me to court for doing so. An unregulated network has nothing whatsoever to do with this kind of freedom that culture flourishes upon. (Unless, of course, you intend to distribute your work anonymously the rest of your life – hmmm, perhaps that it up your alley?)

    You are obviously a clever (not to be confused with ‘intelligent’) person. You are rather tricky with your language. You have mastered the skill of binary thinking and I’d imagine can fool many with your twisted and drawn-out rhetoric. However, this is obvious…

    You are (purposefully or not) trying to equate distribution terms with distribution methods.

    If you are doing this unintentionally, please take note of it and join us (not US) as we all try to figure out the truth of the matter together. If you are doing this intentionally because you have a vested self-interest in the outcome of the p2p case – then I wish you well sleeping at night.

  • Brian P.

    From my (admittedly, in many ways, uninformed) point of view, in MANY fields outside of the copyfight, the real war is not between big companies and freedom-or-death users, or “good” artists and industry sellouts, or even the Right and Left. The question that arises is this one: “How much external control do we want on what we can do vs. what we cannot do.”

    Think about it this way: the majority of laws out there are “Thou Shalt Nots” — for example, thou shalt not muder. Why? Because historically it’s been remarkably difficult to exert the kind of control required over people to successfully limit the nigh-infinite space “whatever we feel like doing” down to a few roads. Given many paths, it’s easier to elaborate a few bad ones rather than specifying each and every possible good one.

    All this is changing, though. The fascinating (powerful, brilliant, terrifying) thing about computers, cyberspace, or whatever related buzzword you feel like using is that it’s well-defined from end to end. Computers aren’t going to spontaneously develop new capabilities — I’m not going wake up one morning and discover that my computer can make toast or clean my bathroom. Everything a computer can do is intrinsically limited by its hardware and its software. In other words, since the paths are so limited, making “Thou Shalt Only” laws is suddenly a much less difficult task. But just because these laws are feasible doesn’t necessarily explain why they’re so popular all of a sudden.

    And where do Thou Shalt Only laws come from? Fear, mostly, and the rest from the U and the D in FUD. Thou Shalt Only laws exist because someone is so afraid of what a person might do that they want to preemptively remove that option, rather than making it simply a punishable offense. For example, it seems to me that the Grokster case is ALL about fear of the malicious capabilities of this technology with minimal analysis of its potential beneficial uses.

    My point is this: I don’t think anyone here is claiming that it’s right to take whatever we want without paying for it just because we can. What we ARE concerned with is the rights of ownership and the level of external control we allow into our lives and our culture. As the OSS folks put it, we’re not asking for free as in beer. We WANT free as in speech. And framing the argument about CC in terms of theft is missing the point entirely. As Peter Rock so eloquently put it: Distribution Terms != Distribution Methods.

    We want balance, not anarchy.

  • http://yourcopyrights.blogspot.com ACS

    As the OSS folks put it, we’re not asking for free as in beer. We WANT free as in speech.

    We want balance, not anarchy.

    Balance is an interesting issue when it comes to freedom of speech.

    I think Oliver Holmes put it best when he said you are free to make speech but it does not excuse you from the damage caused by yelling fire in a crowded theater.

    The same logic should be applied to this debate – If it is found that copyrights or authors rights are damaged by p2p then the creative commons crowd and others like the ACLU should accept this limit on thier speech.

    That they cannot use p2p until an appropriate licencing system is in place.

    Ppl like blind mice and I do not want to stop remix culture we believe that it will change the world and allow a new era of expression where you dont have to pass through an editors eye.

    BUT it should not come at the cost of the law (albeit that is a strong statement given it is yet to be determined).

    TBM is right

    the way we three blind mice see it, DRM would permit BOTH regimes to exist and this can only be a good thing. choice for the artists, and choice for the consumers

    The last thing we want is the power of media companies to deliver high quality (expensive think TLOTR or Titanic [ok maybe titanic] or Star Wars) products to be trampled because of a fire in the cinema.

  • http://gnuosphere.blogspot.com Peter Rock

    Brian P. -

    Think about it this way: the majority of laws out there are “Thou Shalt Nots” — for example, thou shalt not murder.

    Yes. And as you say, they come from F which conditioned to being by U and D. Various individuals and groups consciously (i.e. maliciously) or unconsciously propagate U and D thus creating F – and F is what is preventing US from seeing the truth of the matter.

    How about this question…

    Is there a difference between a precept and a rule?

  • http://www.tekstadventure.nl/branko/blog Branko Collin

    ACS, the problem with your reasoning is that you only seem to be able look at the situation as it is, not as it could be or even should be. Even then, you seem to fail to understand the situation as it is.

    Before DRM the ability to rip, mix and burn were legally only encumbered by current copyright law. Copyright law allows a great many exceptions to the monopolies it grants. In theory (and the first practices we have seen do not allow much hope that the practice will differ greatly) DRM can take away all the freedoms that copyright allowed.

    Ah, you will say, but copyright law has changed. When the law changes, we follow the new law, not the old law. The new law includes the notion that an author (let’s bow to the pro-copyright lobby for an instance and pretend copyright is not really about publishers) has a complete monopoly on everything he creates and DRMs, not just a monopoly with a thousand exceptions.

    And this is where you crack me up, because so far you have not said a thing that a strong-copyright proponent such as Larry Lessig does not agree with. You counter his arguments though as if he is the enemy. Why is it so strange to you that somebody who is on your side should be intelligent and elloquent? Why don’t you answer his very simple question, which is: considering the new rule of law, how can we convince authors of the validity of old values?

    Perhaps I need to remind you of those old values, but that should not be necessary for this discussion. Suffice it to say that so many of your darling authors cherished the ability to remix. That the opportunity to remix is polluted by DRM is without doubt: that opportunity first followed from the law, now it follows from negotation. It is as if first you were allowed to cross the road, now you need to pay a fee to cross the road.

  • http://www.yourcopyrights.blogspot.com ACS

    Branko – you are very right although there are various reasons to disagree with your general point of view which I shall try to get to and the logical reasons therefore will be forthcoming but let me first just say – you are right I do see things the way they are – Im a lawyer – thats my job.

    Branko – if you would for me please state the exceptions to copyright law – I would be most amused. I do believe that exceptions such as transmission and licencing are in fact required in order to deal with copyright as property. In fact most of the exceptions fill some purpose towards this goal. Please feel free to ask in this regard.

    I do agree with Lessig on all manner of law – I have read the law of the horse and its flogging many times – I am a firm believer in the architecture of information systems being the basis of considering legal effect – which is his idea. In all these things I agree.

    However, caution must be had when considering the law as it is and the law as it should be. One can be objectively determined and viewed. One cannot.

    With respect to DRMs the law has been considered with its consequence on remix culture – Blind Mice and I were just reminding the audience that the effect on the commercial copyright industry must also be considered.

    To my mind without a DRM or p2p licence requirement (See previous posts) or some similar arrangement. Artists may lose access to the remarkable power of the recording industry. It would be the internet equivalent of being forced from playing in arenas and stadiums to bsking on the street where anyone can jump in.

    To avoid this we need DRMs or copyright laws that protect all works from file sharing, infringement, p2p and the like and puts the choice to using those works in p2p or any other system squarely in the hands of the copyright owner.

    Of course its a free place so feel free to disagree.

  • http://gnuosphere.blogspot.com Peter Rock

    ACS:

    without a DRM or p2p licence requirement…Artists may lose access to the remarkable power of the recording industry.

    “remarkable power”?

    Ok, how about this…

    With DRM, “trusted computing”, and a “per copy” copyright model, artists as a whole will lose access to the truly remarkable marketing power of the global digital infrastructure we call the Internet.

    The US view seems to enjoy flagrantly tossing about the 90/10 statistic of p2p “infringing” use without regard to Lessig’s much more objective 4-category breakdown of p2p use in chapter 5 of Free Culture. That is, they neglect to mention that some of the technically “infringing” 90% of p2p use actually helps the industry.

    One might be well reminded that such a statistic could easily be reversed when it comes to artists having “access to the remarkable power” of the recording industry. Last time I checked, a 90/10 breakdown would be an extremely generous measure of artists (10%) that actually have an “in” to Hollywood’s movie/music industry.

    Yes, Hollywood does have “remarkable power”, but its power is not found in its “accessibility”. Its “power” is oppressive – not inclusive. It’s time for the old to downsize (not become extinct as the FUD-spreaders want us to believe) and let the new operate and thus, flourish.

  • Joseph Pietro Riolo

    To ACS,

    If you claim that you are a lawyer, you should
    read the copyright law itself for exceptions!

    But seeing that you do not know that exceptions
    exist, let me guide you as I would do with the
    Three Blind Mice. The exceptions are listed
    in the Sections 107, 108, 109, 110, 111, 112,
    113, 114, 115, 116, 117, 118, 119, 120, 121,
    and 122 in Chapter 1 and in Section 1008 in
    Chapter 10. My favorite exception is Section
    121 that allows people with disabilities to
    copy copyrighted works to a specialized format.
    Three Blind Mice may find this exception useful.

    Will DRM ever recognize these exceptions?
    Probably not. Three Blind Mice may find that
    they are at the mercy of the authors and artists.
    That is why DRM is not good for the users.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • http://www.yourcopyrights.blogspot.com ACS

    Hello Peter

    I feel we are yet again about to disagree on some point that the rest of the world may not really care. But I think it is important and apparently so do you.

    I wish to point out a recent article that I have seen which stated:

    music sales in Ireland between 2001 and 2004 – a decline of 19 percent – the Irish Recorded Music Association (IRMA) said.

    http://australianit.news.com.au/articles/0,7204,12841339^15331^^nbv^15306-15318,00.html

    the same has been stated by the Australian RIA

    and the overall value fell by 6% to $607 million

    http://www.aria.com.au/pages/AustralianRecordSales2004FullYearResults.htm

    THIS IS A WORLD WIDE PHENOMENON.

    A phenomenon that began almost exactly when the internet and p2p became widely available. Do you use it?? Have you heard a song that you liked but didnt want to get the album (for me it is 4 to the floor).

    Those figures are not evidence of improved value of copyright that already exists or which the record companies chose to sell. Rather it is the total saleable copyright.

    I cannot understand the economic advantage of p2p or any other unlicenced distribution method to the author.

    On this basis I must return to the comments of 3 blind mice and myself in that we would like to see both a free copyright market under CC or other licence AND a restricted economically valuable copyright market similar to the Napster of today.

    I do agree that the majority of artists gain from p2p and remix culture but I wonder how many of them will continue to support it when thier works are finally valuable. Where is the return on investment of talent, time and expertise?

  • http://www.tekstadventure.nl/branko/blog/ Branko Collin

    @ACS: “Of course its a free place so feel free to disagree.”

    As you said, you are a lawyer, so disagreement is the fertile soil off which you live. I am an author, and for me that soil is discourse.

    Please note that I am quoting you. What is infringement to you, is politeness to me.

    However, caution must be had when considering the law as it is and the law as it should be. One can be objectively determined and viewed. One cannot.

    That is true. Only the law as should be can be objectively determined, the law that is cannot.

    To my mind without [...] DRM [artists] may lose access to the remarkable power of the recording industry.

    There are IMO several things wrong with this view.

    For one, it is rather pessimistic. The recording industry has survived many other “revolutions”, such as the LP, the CD, the music cassette tape, et cetera.

    For another, it implies that the value of the power of the recording industry is such that it must never be destroyed. Whole types of works (pianola music) have disappeared, yet we hardly look back in regret. If you would now suggest to a bar keeper that they replace their CD player with a pianola, the regulars would probably flay you alive.

    As you say, “caution must be had when considering the law as it is and the law as it should be”. Specifically, we must look at the repressive law on the one hand, that forbids citizens to use their most basic right of freedom of expression, and the value that is produced by that law.

    If you look at the value that is produced by the recording industry, there are several things that stand out:

    1. Part of the value is distribution. Surely, when distribution could be improved by using P2P instead of retail stores, using the law to maintain outmoded modes of distribution is heavy-handed?

    2. There are many more artists who need the services of the recording industry than there is room for artists. Therefore, the services offered by the industry are in a seller’s market. The result of this is that these services are sold at a much higher price than they’re worth. It is not untypical that a record label derives 10 to 20 times as much income from the production of a CD then does the artist.

    To avoid this we need DRMs or copyright laws that protect all works from file sharing, infringement, p2p and the like and puts the choice to using those works in p2p or any other system squarely in the hands of the copyright owner.

    I am sorry, but that is just wrong. Wrong in the sense of evil. Lets just skip over the simple fact that copyright does not protect works, but destroys them. You are suggesting that copyright should not just control the act of copying, but all manners of usage? Why would you say a thing like that? What is this “need” you speak of? Copyright steals works from the public. There is no need to make things worse by disallowing usage.

    “Protect from sharing”–can you hear yourself talking? I shudder to think what values you instill in dependents: students, children, employees… Try “protect sharing”, then see how that pans out in today’s copyright climate.

  • http://www.tekstadventure.nl/branko/blog/ Branko Collin

    @ACS

    BTW, I feel we’re straying from the original subject. Let’s assume for a moment that all you are saying is true, and that it is also true that DRM diminishes the possibilities of collage art. Now how would you go about improving the conditions of collage artists?

    I think you already mentioned one: seek out the artist and come to a separate license agreement.

    Larry built another possibility: create standard licenses that can be used by artists to allow a certain form of remixing. But of course, the DRM lock may prevent that which the license explicitely allows. Breaking the lock is breaking the law. So, how would you deal with that situation?

  • http://www.yourcopyrights.blogspot.com ACS

    “However, caution must be had when considering the law as it is and the law as it should be. One can be objectively determined and viewed. One cannot.”

    That is true. Only the law as should be can be objectively determined, the law that is cannot.

    OK right sure – next topic please.

    By the way a record store provides more economic impoteus than a p2p system where there are no profits – believe it not all artists are rich – some are really poor and they would like not to be.

    I think we are at loggerheads because I havent explained myself properly. There is nothing wrong with collage art or remix culture. I think that it is the internet equivalent of Greenwich Village or SoHo. A small group of artists gathering together and sharing ideas. But copyright law does not protect ideas it protects thier expression. As a matter of law the state grants a monopoly to someone who first expresses themselves in an original way.

    There are many important reasons for this –> Read The Birth of Plenty which cites Intellectual Property as one of the four pillars of economic growth.

    In any event – in order to protect these legal rights and allow for sharing we must consider the issue of the licence. A permission or authorisation to fiddle about with my legal rights in a work. No DRM in the world could take away from these rights!!!!!!!!! But a p2p system that does not incorporate licencing measures does!!!!!!!!!!!!!!!

    To prove this point go into Grokster or Kazaa or morpheus and try and find the place where it says – here is the licence for you to reproduce this file on your computer. If you can show it to me I will agree that p2p is ok otherwise it should be out of here!!!

    There is no legal reason why a p2p system that required entry of a licence agreement document or something similar would be vicariously liable for copyright infringement – even implication of a licence may be sufficient (we have to wait for groupster to hit the streets).

    We are in the fight for remix culture together but I want it to be legal. Is there any sense in doing it any other way? Right now government, lawyers and the internet warlords are fighting it out and we are suffering – if we get it right there wont be any need for it and we can continue onto the intellectual promised land.

    The fact is that p2p went too far without due regard for the law. Yes CC is a great idea. Yes remix culture will happen but nether point justifies the wide range stealing of works.

    Protect authors rights from the effects of file sharing – protect sharing from lawyers and government by not giving them any excuses to stop us.

  • http://www.theamericangentleman.com MJ Hall MD

    14 February 2005

    Clerk
    United States Court of Appeals
    Judicial Council of the Second Circuit
    Thurgood Marshall US Courthouse
    40 Foley Square
    New York, New York 10007

    RE: Resubmission of Complaint of Misconduct
    Judicial Council of the Second Circuit
    Case: Hall v. The New York Presbyterian Hospital, et al
    USSD 00 CIV.7858

    Dear Clerk:

    As a practicing physician, born and trained in the United States of America, and board certified by the American Board of Family Medicine, I am held accountable for my professional actions. As a representative of my chosen profession, I am not only responsible to the patients I treat, but I am expected to adhere to an ideal, one that is called the Hippocratic Oath to ensure my patients receive the best care I possibly can deliver. It is understood that the same ethical and expert standards that apply to the medical profession also apply to the legal profession as well. Therefore, it is only natural that the following complaint be viewed only from the perspective of governance of the federal judiciary and management of federal law.

    It is my firm belief that the Honorable Judge George Daniels, civil servant of the United States, agent of the United States federal judiciary, and lifetime member of the United States Southern District Court has violated his professional duties and must be held accountable to the American public. It is the belief of many that he has acted inappropriately and incompetently while presiding over Hall v. The New York Presbyterian Hospital, et al as he has treated these claims with extreme carelessness and negligence amounting to �judicial malpractice�.

    It is inconceivable that a federal judge can ignore the official overtures of representing counsel. This has occurred in my case. It is morally unjust to require the filing of a lawsuit to force a ruling by a judge. This has occurred in my case. As well, one cannot comprehend how the federal court system can allow a member the federal judiciary to professionally lapse and allow an American citizen to be placed in an unacceptable and indeterminate state. This has occurred in my case. Moreover, it is unconscionable that this agent of the American government has not been held accountable for his actions. Honorable Judge George Daniels� behavior is not only unacceptable, but also reprehensible. It must be documented that my civil rights as an American citizen were carelessly abandoned not only by my previous employer, but also by the very federal legal system designed to fairly resolve such disputes. Clearly, my constitutional entitlement to a fair judicial examination was abandoned. This District Court and Honorable Judge George Daniels� actions have cast a great shadow on the American legal system and triggered a great number of personal, psychological and financial traumas. The Judicial Council of the Second Circuit must address these issues.

    Please allow me to indulge the Judicial Council of the Second Circuit for a moment and provide some background for my complaint.

    During the summer of 1997, while serving as chief ophthalmic resident and a graduate medical education member at The New York Presbyterian Hospital (�Hospital�), Petitioner witnessed several acts of racial prejudice and medical misconduct committed by senior medical staff against black Americans.

    Within days, after verbally informing Petitioner�s chief-of-service, Dr. D. Jackson Coleman, MD, and program director, Kip Dolphin, MD, that an outer-borough black child did not receive timely and compassionate treatment from hospital surgeons for a traumatic penetrating eye injury, Petitioner was presented a fait accompli and asked to resign or face termination. Petitioner had previous been warned that previous comments regarding racial discrimination and medical negligence were not acceptable, and there was displeasure within the hospital staff regarding a written memo, in which Petitioner detailed why black patients did not receive adequate medical care at the hands of white hospital medical staff.

    1) On October 17, 1997, unwilling to resign, Petitioner was summarily terminated from Accreditation Council for Graduate Medical Education (�ACGME�) approved ophthalmology residency position.

    2) During April 1998 Petitioner brought forward a breach of contract complaint with the New York State Supreme Court based on a contractual obligation the Hospital had failed to obey by disregarding important employment bylaws while terminating Petitioner�s employment and disregarding a contractual obligation to provide adequate staffing and medical training based on ACGME approved guidelines.

    3) On June 21, 1999, Judge Sheila Abdus-Salaam of the New York State Supreme Court dismissed the claims based a failure to go before the New York State Public Health Council (�PHC�). A state review board comprised of twelve (12) lay and professional New York State residents enacted by New York Public Health Law 2801-b. (NY Sup. Ct. docket no. 6020395/98)

    4) After discussions with numerous attorneys, Petitioner was advised that as a member of the Hospital�s �graduate medical education�, or effectively a �medical student�, Petitioner would receive no resolution, as the PHC was purely designed to hear disputes between �credentialed hospital staff members� and hospital administration. Furthermore, the PHC was unable to offer any administrative remedy.

    4) On October 14, 1999 Petitioner submitted an Emergency Medical Treatment and Active Labor Act claim (“EMTALA”), regarding two points, a) maintenance of physician-on-call lists and information on physicians who refuse or fail to appear to provide timely stabilizing treatment and b) protection for “whistle-blowers” who report a violation of the regulations, as well as a 42 U.S.C. � 1981 claim.

    5) After initial arguments, a full disclosure revealed that District Court Judge Jed Rakoff had a conflict of interest with the case, as this was officially entered as part of the court record. At the time, the judge was affiliated with Cornell University; Petitioner�s attorney, Ambrose Wotorson, requested that he recuse himself and appoint a new judge, the judge refused.

    6) On February 24, 2000, the District Court dismissed, without prejudice, the EMTALA claim for failure to proceed before the PHC. A copy of the opinion is attached as Exhibit A.

    7) a) In July 2000, Petitioner provided a written complaint to the PHC and the Hospital provided a response. A copy of the complaint is attached as Exhibit B.
    b) Additionally, in July 2000, Petitioner also communicated the same claim to the New York office of the Equal Employment and Opportunity Commission (�EEOC�) and the Department of Health and Human Services, Office of for Civil Rights. A copy of the letters is attached as Exhibit C.

    8) On September 22, 2000, Petitioner was provided a full crediting and affirmation of civil rights violations claims by the PHC. A copy of the opinion is attached as Exhibit D.

    9) On October 16, 2000, Petitioner attorney filed a suit against defendants alleging violations of 42 U. S. C. � 1981 and various state and local laws. Abruptly, the District Court Judge Jed Rakoff inexplicably recused himself from the case and appointed District Court Judge George Daniels.

    10) Between November and December 2000, the Hospital provided false and malicious information regarding medical qualifications and skills to a prospective employer, in total contradiction to the findings of the PHC.

    11) On December 13, 2000, the Hospital filed a 12(b)(6) Motion seeking to dismiss the complaint for failure to plead a prima facie case of discrimination and retaliation.

    12) On April 6, 2001 Petitioner submitted a formal request to amend the complaint after receipt of a right-to-sue letter from EEOC. In January 2001 the EEOC provided Petitioner with a right-to-sue letter under Title VII civil rights law. A copy of the letter is attached as Exhibit E.

    13) On July 4, 2001 Petitioner submitted a formal complaint of misconduct to the Judicial Council of the Second Circuit regarding the aberrant actions of Judge Jed Rakoff. (Docket no. 01-8568)

    14) On November 18, 2003, a writ of mandamus was served by Petitioner�s attorney to the Second Circuit Appeals Court causing the District Court, by judgment dated December 5, 2003, to dismiss Petitioner�s claim under 42 U. S. C. � 1981 for failure to state a claim.

    15) On July 13, 2004, Petitioner�s attorney filed a timely notice of appeal contesting the validity of the district court�s findings. A copy of the appeal is attached as Exhibit F.

    16) On November 23, 2004, the United States Court of Appeals for the Second Circuit entered an order affirming the district court decision. A copy of the opinion is attached as Exhibit G.

    17) On December 13, 2004, Petitioner submitted a formal complaint of misconduct to the Judicial Council of the Second Circuit regarding the actions of Judge George Daniels. Please refer to the New York Times article �Judges Decisions Draw Notice, For Being Conspicuously Late�, Dec 6, 2004. A copy of the article is attached as Exhibit H.

    It is crystal clear, after mandates from New York State Supreme Court and the United States Southern District Court to seek review by the New York State Public Health Council; my complaints were thoroughly investigated in July 2000. Consequently, my allegations were fully credited and during September 2000 the council established that the New York Presbyterian Hospital and Drs. Dolphin and Coleman on two points:

    (1) “Committed an improper practice by terminating Dr. Hall’s clinical privileges” and (2) “the council determined the Hospital’s actions was not based on principles of patient care, patient welfare, practitioner character or competence, and/or the objectives of the institution.” (PHC letter dated September 22, 2000)

    After receiving this patent victory against the Hospital, the case was reintroduced into the federal court system, again under the auspices of Judge Jed Rakoff. Abruptly, Judge Rakoff then recused himself without explanation after my attorney again raised the issue of a conflict of interest between his senior position with Cornell School of Law and my previous employer, Cornell Medical University, who was named a defendant in my case. Judge Rakoff unprecedented and aberrant behavior was raised with complaint of misconduct on July 4, 2001 with the Judicial Council of the Second Circuit (Docket No. 01-8568).

    Shortly thereafter, Judge George Daniels was appointed to my case. After satisfying Judge Jed Rakoff�s request to seek review before the New York State Public Health Council, and receiving a Title VII right-to-sue letter from the Equal Employment and Opportunity Commission, my case was placed in a state of limbo. After almost three years of inaction and stating at oral argument that he would resolve a 12(b)(6) Motion �quickly� the case continue to face total inaction. In fact, my attorney was hamstrung by the Judge Daniels and forced to write �pleas� for discussion with Judge George Daniels and place phone calls that were causally dismissed, ignored and never returned. To our dismay, the District Court eventually required a writ of mandamus to finally issue any statement at all. It is important to note after the writ was filed, within a period of two weeks, Judge Daniels threw out my long-standing claims after years of delay, inaction and abandonment. The case was never allowed to proceed to discovery.

    It is obvious that my civil rights claims contained within, Hall v. The New York Presbyterian Hospital, et al., (Southern District Court Index No. 00 CIV. 7858), were treated by the District Court with an absence of ordinary care.

    I base this information on several facts and have enclosed documents to support my allegations.

    1) Approximately one year ago, the Southern District Court (Honorable Judge George Daniels) granted defendants’ motion to dismiss the case against The New York Presbyterian Hospital and Drs. Coleman and Dolphin. In an order dated December 5, 2003, the District Court held that my pleadings were legally deficient, “nowhere in his complaint�does Dr. Hall claim that he�specifically complained of disparate treatment provided to blacks as compared to white, or that the issue of race was ever discussed in connection with is patient�s care or his complaints about their treatment.� Moreover, the District Court held that the complaint made �no factual allegations that the white senior physicians were actually made aware that the patient in question was black, that senior physicians who failed to assist Dr. Hall were aware that the patient in question was black, that a departure from the standard of care occurred because the patient was black.� This issue is critical as we had submitted and affidavit attesting to this fact, yet Judge Daniels disallowed this evidence form becoming part of the legal record.

    It is my claim that the District Court failed to appreciate a significant lower court ruling, primarily the New York State Public Health Council crediting my complaint against the New York Presbyterian Hospital in September 2000. It is my belief that this vital information was improperly disregarded by the District Court thwarting my claims. The substance of the complaint, in which I brought against the New York Presbyterian Hospital-Cornell Medical University, regarded the hospital terminating my professional privileges under the 2801-b provision of New York State Public Health Law. It is the New York State Public Health Council�s opinion the hospital, ophthalmology department chairman and program director acted improperly. Specifically stated in my complaint I referenced an African-American immigrant who was not treated timely or compassionately by white staff members after a severe penetrating eye injury, �it is my belief that the hospital internationally disregarded the patient (sic) civil rights and federal rights for treatment in a level one trauma center due to his ethnicity and immigration status.� Additionally, I went on to describe that an African-American child with a severe penetrating eye injury was not seen or examined at all, by any member of registered hospital attending staff after five separate white surgeons were notified personally by me while on call as chief resident. All white surgeons asked pointed questions about the child�s ethnicity and when identified as black were adverse to attend to his emergent medical care, �the incident that transpired in August involving a African-American child transferred explicitly to the hospital from another (local) hospital was entirely racially motivated and reflects an arrogance and superiority I have never witnessed before.� (See the New York State Public Health Council complaint)

    Moreover, stated bolding in my the New York State Public Health Council complaint and made exhibit one of my federal complaint, I proclaim �the hospital parties were also well aware of several complaints�.in writing and verbally�to hospital superiors�complaints were based on several episodes of medical negligence and racial discrimination.� (See the New York State Public Health Council complaint). Contrary to the defendant�s claims, I immediately made Drs. Coleman and Dolphin aware of my concerns of disparate medical care against black patients by white hospital staff. This is unequivocally supported by the New York State Public Health Council investigation and extensive review of all the evidence. As well, the crediting of the allegations as fact completely contradict the District Court�s affirming the defendants� outlandish assertions that the claims are �after-the-fact� and are based on �a second bite at the apple� legal theory.

    2) Additionally, the District Court denied my motion to amend my complaint by implying it held no new relevant information. In the alternative, I argued that the District Court should have granted me this relevant affidavit, amending my complaint, so that I could have pleased the court with specified details that the court requested, including the substance of the New York State Public Health Council ruling, [which incidentally was already cited in the pending federal complaint] and demanded highly germane by the previous District Court Judge Jed Rakoff in accordance to New York State Health Law. (Southern District Court Index No.99 CIV. 10554)

    In that regard, it is unclear from the District Court�s dismissal what additional information would please the court, as it would seem that the court has on one hand demanded [per District Court Judge Jed Rakoff] the New York State Public Health Council judgement, deemed vital to pursue federal action, and on the other, ignored the New York State Public Health Council findings altogether. Based on my first federal ruling, (Southern District Court Index No. 99 CIV. 10554), a nexus was formed and clearly stated my federal claims are not separate and distinct from the New York State Public Health Council�s expert judgement and the affirmation of these allegations, as they are intertwined, provide undeniable, definitive and incorruptible support to my sentinel allegations against the defendants.

    Once again, incredulously, at oral argument counsel represented that I had furnished all links to disparate care and the mistreatment of black patient by defendants through my detailed and fully accepted New York State Public Health Council review finalized in September 2000. I had met the legal threshold of both 42 U.S.C. � 1981 and Title VII, 42 U.S.C. � 2000e by advocating for a racial minority and then later being discriminated against by my employer for doing so through termination and defamation. Emphatically, this is based on the verbal and written statements attesting to the surgical and medical mistreatment and racial discrimination by the defendants as it related to black patients I was caring for as a federal funded proxy of the defendants.

    Clearly, I witnessed and purported black patients with critical eye injuries did indeed suffer and receive disparate care by agents of The New York Presbyterian Hospital. I vociferously expressed these concerns through an internal memo providing them to my immediate superiors and was later fired for doing so. As my claims were presented before the court, they have been boxed neatly by the New York State Public Health Council and avoid any notion of presumption or confusion.

    To reiterate, as I have read my claims presented by my attorney, it is ludicrous to determine that I have failed to allege �that he was fired by the hospital because he was advocating the 1981 rights of member of a racial minority,� as per Honorable Judge George Daniels. Plainly stated, the District Court argued this point was never alleged or supported in my federal claim. This is absolutely wrong, as it formed the basis of my New York Hospital Public Health Council complaint and this action was entered into my federal complaint in October 2000 as well as a Title VII right-to-sue letter from the Equal Employment and Opportunity Commission a letter provided to the court on April 6, 2001. What exactly does a right to sue letter imply if the District Court can ignore it and is not held accountable to the federal agency that provided it? Again, it is impossible to understand why this claim was not acknowledged or understood, as it was highlighted and on the first page of my federal complaint.

    3) District Court Judge George Daniels, as a lifetime member of the federal judiciary and representative of the United States of America legal system, was issued a Writ of Mandamus regarding a unreasonable time delay regarding a 12(b)(6) Motion sought by the defendants. The writ was issued because of a perceived lack of professionalism and ethics, as he was contacted by my attorney via phone and writing multiple times without response over a period of years and failing to render a decision over two and half years. Realizing that the case was in a state of limbo, on June 2, 2003 we wrote the Chief Judge of the Southern District of New York requesting that the case be transferred to another District Court Judge in light of the District Court�s failure to render a decision on a 12(b)(6) Motion for almost three years. This letter was never answered. Only after being issued a Writ of Mandamus on November 18, 2003, the District Court ruled on December 5th, 2003, fifteen days after receiving the summons. It appears that after a period of many years, the Honorable Judge George Daniels was exceptionally willing to work toward resolving the case and dismissing it without delay. The space of time required for him to make this profoundly swift decision raises the question of his motives and raises the question that he breached his professional and ethical judicial duties.

    Furthermore, I allege the District Court acted unjustly and prejudicially by the sweeping dismissal of claims, 42 U.S.C. � 1981 and Title VII, 42 U.S.C. � 2000e, [provided by a right-to-sue letter from the New York office of the Equal Employment and Opportunity Commission in January 2001] after the said court was again forced by legal threat to make a decision based on a higher court�s writ of mandamus submitted by my attorney Ambrose Wotorson. Soon after, the District Court ruled with unceremonious alacrity to discharge the claims while boldly demonstrating, through a short opinion, it had no reasonable comprehension of the case and supporting documents. The District Court failed to address serious claims with any modicum of logically bearing and has made irrational statements that indicate it clearly had no understanding of the claims and set out to nullify said claims and thereby actively obstructed my case and hindering due process.

    The District Court affirmed the dismissal of all defendants and found with prejudice against Dr. Hall.

    4) Recently, the Southern District Federal Court of Manhattan, New York, and its proxy, the Honorable Judge George Daniels has recently come under scrutiny in the press. It is obvious that the United States Southern District Court�s integrity is currently in peril and based on a front page article from The New York Times, dated December 6, 2004, the District Court�s Judge George Daniels has had a series of lapses in jurisprudence. Unparalleled in the history of the United States Southern District, this chaotic situation creates numerous fears, invokes unprecedented suspicions and opprobrium. Most concerning, Judge Daniels� behavior gives the appearance and impression that the validity of his rulings are potentially flawed. According to The New York Times, the District Court�s Chief Judge, Michael B. Mukasey, Judge George Daniels� behavior is not isolated and is was recognized as improper and ongoing, �Judge Michael B. Mukasey, chief judge of the Federal District Court, who has received repeated complaints about the delays, said that he thought Judge Daniels had been tackling his backlog, and that the year-old statistics did not offer the clearest picture. �Judge Daniels and I have spoken about this,” he said, �”As an institutional matter,” Judge Mukasey added, “obviously inordinate delay is always a concern.”

    There are serious questions raised by these statements. Are we to assume that any clearer picture exists? What does �institutional matter� legally define; does it apply only to the bench or also the public? Who exactly is in charge? Why is behavior condoned and this allowed to happen? Can a judge be above the law?

    In conclusion, I respectfully ask the Judicial Council of the Second Circuit to initiate and complete a professional review of the Honorable Judge George B. Daniels� court procedures and a full and unfettered evaluation of his ruling regarding Hall v. The New York Presbyterian Hospital, et al. As you may be aware, I have recently submitted a formal complaint of misconduct against the Honorable Judge George B. Daniels to the Clerk of Court of the Second Circuit Appeals Court, but was required to formally resubmit the matter.

    These statements are true under penalty of perjury.

    Yours faithfully,

    Michael James Hall, MD, MSc

  • http://gnuosphere.blogspot.com Peter Rock

    Lawrence:

    is there a way to protect the legitimate IP interests of the copyright holders, without polluting remix culture?

    After looking at this question for days now, I feel that the answer to it is – NO. Unless I’m missing something, I don’t see how it is possible. Please if someone has any idea I would love to hear it. I would like the answer to be YES but I don’t see it as feasible given technological developments during the late 20th century.

    If there is agreement that the answer is NO, the next question would then be…

    Is there a way to further the legitimate IP interests of the copyright holders, without polluting remix culture?

    This is where Fisher’s book comes in. Whether one likes the ideas of Fisher or not I believe is irrelevant. I believe some sort of alternative incentive system (not protection system) will eventually have to be put in place and the ideas in (chp. 6) Fisher’s book are an excellent start.

    A comment was made by Ian on the “semiotic democracy” discussion -

    Before we consider such drastic measures to save the entertainment industry we should ask whether society really needs it. The free software movement has taught us that creativity does not suddenly grind to a halt when creators are denied (or voluntarily reject) the control afforded to them by copyright.

    I think we should recognize a key difference between FOSS and music/movies. When a software developer creates software, he/she is an “expert” in their program – after all, THEY wrote it. Therefore, they automatically have a sort of natural “leverage” when it comes to future technical support and program improvement/modification. Practically speaking this is of tremendous significance. After all, if you want a FOSS program modified and you do not know how to do it, often the first person one will seek is the author him/herself and only go elsewhere if the price is too high or there is unwillingness to do so. However, a musician or movie maker is not in this position. They may be initimate with their work, but the possibilities of financial reward for being in such a position are minimal as compared to a software developer. The natural “leverage” that a musician has is the ability to perform his/her work for money whilst the software developer is unable to do so. That is, I’m convinced I would not pay Richard Stallman a dime to hear him recite the source code to Emacs…he’ll need to integrate his recorder if he wants money in his hat. :-)

  • Brian P.

    Peter Rock:

    That last comment really jogged my brain. Could it be that we’re a little too zealous to draw the connection between F/OSS and cultural copyright questions? Alternatively, are we not taking this far enough?

    The comparison is tempting, to be sure. Here you have this apparently successful, virtuous, wholly new business model (F/OSS) that thrives/subsists on sharing, trading, and remixing of intellectual property. In fact, without this type of strong infrastructure, the whole endeavor would just curl up and die. Distribution is taken care of by various online means, but it’s the cooperative, evolutionary forces that really make the thing work. I have a project. You contribute to it, it makes the overall project stronger. You spin off your own fork of a project with a similar idea, and if yours is better than mine, mine dies, yours survives, but my idea lives on in your project. The net progress is upwards.

    I’m just not sure if the same is true with music, movies, and the like. I write a song. You snip out a part of it and use it as the backbeat of a remix you’re writing. Our works both exist within the same cultural space, but suddenly they’re interacting ONLY through your use of my music. How much overlap can there be when it comes to something as subjective as taste? It’s not like your music is, in every way, more effective than mine, or that mine, by virtue of being original, completely encompasses everything you might do with my music.

    I’m not saying that we should just give in and say “software’s a special case, old-style copyrighting is all that’s possible for music/movies/everything else.” I’m saying that perhaps we should go back to first principles a bit. Invoking the “it worked for F/OSS” argument seems to gloss over a lot of the subtleties that come into play when dealing with the broader spectrum of cultural work.

    Forgetting financial rewards for a moment, let’s think about the driving forces that make content distribution and remixing work in the first place. Maybe the best argument isn’t “forgoing/mucking with copyrights worked for the codemonkeys,” but instead swing the opposite direction: “how on earth can my remixing your song do ANYTHING bad to the one that you wrote?” As long as the attribution is there, isn’t a remix just a form of free advertising?

  • http://gnuosphere.blogspot.com Peter Rock

    Brian P. -

    “”how on earth can my remixing your song do ANYTHING bad to the one that you wrote?” As long as the attribution is there, isn’t a remix just a form of free advertising?

    In Chapter 14 of Free Culture, Lawrence exposes the “copyright warriors’” extremism in regard to the Eldred Act. He rightly points out that their attempt to block the EA is not simply about “protecting their content”. It is more extreme than that. It demonstrates a viciousness toward the public domain itself. The EA, being completely reasonable, is viewed by some as a threat – something that, if not controlled will eat into the $bottom line$. Opposing the EA is simply absurd and shows that some are truly blinded by the desire to have complete – and I mean complete – control.

    You make an excellent point about “free advertising”. This is part of the beauty of the Creative Commons – it encourages this so both artists profit. One point I think the Mice and I agree upon was that Vanilla Ice’s remix of Queen/Bowie’s “Under Pressure” was tortuous to listen to (although if you ask my grade 8 students the original was the lame one). Regardless of one’s opinion on the songs, it was rather silly (but understandable considering that the CC did not even exist at that point) that there was a lawsuit. I have no financial records to prove it, but I would bet my entire (legally purchased!) CD collection that Vanilla Ice brought about increased revenue for the original Queen/Bowie song. Surely it must have reenergized its value. Although I don’t want to stop someone from having totalitarian rights over their work (or a gun in their home), it just goes to show how insane such an approach can be when an artist remixes your song, you profit, and then you take that artist to court (or shoot a family member coming home late one night). I mean really…how messed up of a culture is that?!

    But those that want complete control don’t see the fact that they are shooting artists, as a whole, in the foot. They are not seeing the enormous potential of the CC and will do anything to make sure it is “separated” from the “All Rights Reserved” approach on p2p networks. So they suggest strong DRM dependent upon proprietary p2p software, and lawsuits against individuals and ISPs as “ways to fight piracy”. So sad.

    As for FOSS juxtaposed with music/movies? They share similarities, but it’s dangerous to lump them into one. Stallman warns about the dangers of the term “Intellectual Property”. As any informed person simply stating the facts will tell you, patents are not copyright! But the IP Believers really love that word – “property” when they try to simplify and dumb-down their arguments to convince the uninformed of their own biased view in order to achieve thier own self interests.

  • http://www.yourcopyrights.blogspot.com ACS

    Peter

    I don’t agree that Queen/Bowie would be wrong in taking Vanilla Ice to court over a remix if he didnt ask permission. Where is the balance between the public domain and the artists rights to choose how thier works are used?

    That is after all one of the rationales for copyright legislation.

    In any sense the public may be drawn into the deception that the original artist approves or condones something which is abhorrent to thier own tastes. I believe this may be as strong an impoteus for an artist to launch a law suit viz a vie Moral Rights.

    DO you not agree?

  • http://gnuosphere.blogspot.com Peter Rock

    ACS:

    I don’t agree that Queen/Bowie would be wrong in taking Vanilla Ice to court over a remix if he didnt ask permission.

    I said:

    “Regardless of one’s opinion on the songs, it was rather silly (but understandable considering that the CC did not even exist at that point) that there was a lawsuit.”

  • Brian

    Patents != Copyright

    Of course not. I mean, how can you own the idea of music? “Hi, I patented the making of noises using at least one of voice or instruments, wherein an instrument is any device that can produce a tone, rhythm, or sound of any sort. I would like a royalty from Og the Caveman who first banged on a log with a rock.” It’s just silly.

    I mean, if you classify programming into the same realm as art, though, then software IP is just as silly — the difference being that software supposedly DOES something, so it is possible for your work to detract from my userbase. Then again, who cares? If all you and I both care about is achieving goal X as well as possible, then as soon asyour program surpasses mine, I should start working for you. We can’t own the idea, all we can own is the specific implementation (which is covered by copyright!).

  • Branko Collin

    @ACS: “ the artists rights to choose how thier works are used

    Hi ACS, I am going to ask you to do me the same favour that you asked of me a couple of days ago: where in the law does it say that the author has such rights? Exactly what rights are we talking about? I only know about the right to control copying.

    (Joseph Pietro Riolo replied for me back then, I hope that was sufficient.)

  • http://www.yourcopyrights.blogspot.com ACS

    Hey Branko

    As you are probably aware the copyright acts of each jurisdiction create several rights for authors or creators of works.

    In my home jurisdiction of Australia the rights are:-

    Section 31 –
    (a) in the case of a literary, dramatic or musical work, to do all or any of the following acts:
    (i) to reproduce the work in a material form;
    (ii) to publish the work;
    (iii) to perform the work in public;
    (iv) to communicate the work to the public;
    (vi) to make an adaptation of the work;
    (vii) to do, in relation to a work that is an adaptation of the first-mentioned work, any of the acts specified in relation to the first-mentioned work in subparagraphs (i) to (iv), inclusive; and

    Therefore the creator of a work may give permission on a restricted or specific basis for another person to reproduce, perform, adapt or communicate the work to the public.

    So for instance, if I was using a CC licence I would state that you have permission to reproduce this work for non commercial purposes. Or you may perform this work at ‘Carols in the Candle light’ concert in Brisbane on 21 April 2005.

    If someone does not have permission and they exercise one of these rights they are infringing copyright.

    The ability to permit others to exercise and restrict thier rights on a contractual (or more correctly licence) basis is one of the essential gounds to dealing with copyrights as well as the essential ground for CC licences.

    Furthermore, the ability to commence infringement proceedings (which generally are not very valuable) backs up these rights and deters infringement.

    Using particular text and clauses an artist can control the works – this is a large part of the work that I have to do in the firm (although my specialty is computer software licences).

    I hope this has made the practice of copyright law a little clearer.

    PS to JPR: those exceptions include fair dealing where there is a consistent line of precedents that do not allow for widespread commercial sharing of protected works to be excepted from copyright infringement.

    The exceptions are necesary for the basic sharing of knowledge on an academic basis – stuff like photocopying a book from a library and I note that those provisions are given a rather narrow view.

    You may have noticed your local library has all these copyirght notices up these days.

    Also remeber that 107 to 122 are alterations of the common application of copyright to certain works due to thier nature as works IE computer programs, sound recordings, architectural works and others. They are not exceptions per se but alterations of the rights in copyright for those works.

    I doubt very much that the materials on p2p (except documents) would fall under the majority of these exceptions. Furthermore, the DRM will also be subject to these exceptions – wont it??

    Maybe Joseph Pietro Riolo should consider that and get back to me. (And remember to be easy on me Im not american)

  • Joseph Pietro Riolo

    To ACS,

    I realized that you are not American when
    I read your comments. This may explain the
    differences between your and my countries.

    I doubt that the DRM will be subject to the
    exceptions. The way the DRM is designed,
    there is no way to break DRM to exercise
    the exceptions without breaking the law, as
    mentioned by Branko Collin. If law is
    written very explicitly that users can break
    DRM to exercise any of the exceptions, this
    will be no problem with me. But, I doubt
    that most authors and artists would want the
    users to have the power to break DRM.

    You may be correct that some or many materials
    on p2p are not legal under the copyright law.
    At the same time, law provides authors and
    artists the means to sue the infringers. There
    is no guarantee that providing them the power
    to control DRM will improve the situation
    because as pointed out by some people, DRM
    would affect the future authors and artists
    and it will reduce two-way street, that original
    copyright is designed to be, to almost one-way
    street.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • ACS

    I think we are just guessing then JPR. Maybe we ought to determine whether the DRM is subject to the copyright Act and/or whether a DRM has its own exception – In particular for universities, school, libraries and government institution that the exceptions to copyright may apply.

    Further more I am still unconvinced that the licencing powers that are implicit in copyright ownership will be restricted by DRM.

    There may have to be a case on the matter but I think we can safely assume that breach of the DRM under a CC or other similar sharing licence or permission will be free of penalty – if it is not already explicit in the Act.

    There isnt a court in the land or your land who would uphold a law that restricted the common right to licence other to use a work.

    In any event if you have a copy of the proposed terms of the DRM I would be happy to have a look at it.