May 22, 2005  ·  Lessig

Matt’s angry about an article in Billboard that is being distributed by Reuters. The article deserves some context.

Last December, Billboard published a piece by its legal affairs editor, Susan Butler. The piece opened with a quote from Michael Sukin, “founding member of the International Association of Entertainment Lawyers,” saying that Creative Commons had emerged as a “serious threat to the entertainment industry.” The piece then asserted:

The nonprofit organization–also known as Creative Commons–urges creators to give up their copyright protection–which lasts for the life of the author plus 70 years under U.S. law–by selling their copyrights to the commons for $1,according to its Web site. In return, the authors receive certain rights that they can use for either 14 or 28 years, or they can donate all rights to the pubic domain for everyone to use.

The “movement,” Sukin stated, had “spread like a virus” and “U.S. copyright income” could be at risk.

The hyperbole from Mr. Sukin — a lawyer — was funny. But what struck me in the article was the assertion by Butler that “Creative Commons urges creators to give up their copyright protection” in exchange for $1. I couldn’t begin to understand what she was talking about. Obviously, our licenses enable artists to choose to waive certain rights — while retaining others. (Remember: “Some Rights Reserved”). But they are licenses of a copyright; they couldn’t function if you had “give[n] up” copyright protection. The vast majority of creators adopting Creative Commons licenses keep commercial rights, while giving away noncommercial rights (2/3ds). It’s hard to see how waiving noncommercial rights would do anything to “U.S. copyright income.”

So I contacted Butler to ask her what she was talking about. We connected over email, and she said she’d check into it. She then pointed me to the Founders’ Copyright, which indeed does offer $1 in exchange for someone limiting a copyright to 14, or 28 years. I had frankly forgotten about the way the Founders’ Copyright functioned, mainly because nothing we do today has anything to do with that license, as Evan pointed out in his birthday wish for the still-born license. As far as I knew at that point, precisely 3 works have been licensed under this license (my own books). O’Reilly is processing more. But to describe the work of Creative Commons as this is either to listen to Mr. Sukin without checking the facts, or not to care about the facts. You could say, for example, that Billboard is a publication that publishes letters to the editor, and that would technically be true. But obviously, though technically true, it would be a totally false characterization of what Billboard is.

I therefore suggested the story should be corrected. It wasn’t. Instead, a month or so ago, we learned that the same writer had been assigned to write an “indepth” story about Creative Commons. I thought the idea a bit odd. I raised its oddness to the magazine. According to their standards of truth, what Susan Butler had published before was correct. They were confident that she would produce the same again.

That, of course, was my fear as well.

The Billboard piece is beautifully written — indeed, it has a cadence to it that is masterful. There’s a tide — in and out — of good, crested with criticism, all building to the part that got Matt so angry — as he put it, the suggestion that Creative Commons “kills people with AIDS.”

Yet it’s very interesting to map the structure of the argument. The piece has some quotes from me, and Hal Abelson in support. It quotes two people opposed. One of the two is Mr. Sukin again. The other is David Israelite, president of the National Music Publishers’ Association.

Israelite doesn’t actually say any about us. He’s worried about the people we hang around with. As he says,

“My concern is that many who support Creative Commons also support a point of view that would take away people’s choices about what to do with their own property.”

And later, Butler reports,

“Israelite says that often when people give away their own property under a Creative Commons license, ‘it is really an argument why others should be forced to give away their property.’”

I love it when people tell me what my argument “really” is. The whole premise of Creative Commons is that artists choose. We give licenses to creators. How exactly empowering creators is “really an argument why others should be forced to give away their property” is bizarre to me. By this reasoning, when Bill Gates give $20,000,000,000 to help poor people around the world, that’s an argument for socialism.

Sukin’s criticism is even more bizarre. Butler quotes him as saying “Lessig and his followers advocate a shorter copyright term.” The link this point has to Creative Commons is left obscure by the author. The RIAA believes it is appropriate to sue kids for downloading music. They’re supporters of Creative Commons. Does it follow that Creative Commons supports suing kids for downloading music? There are a wide range of supporters of Creative Commons, many of whom disagree about many matters fundamental. I should think that’s a virtue of Creative Commons, not a vice.

There is one part to the piece, however, that does bothered. Not the dramatic flair at the end (this is Hollywood, remember. What would a story be without a villain killing a victim with AIDS in the end). The extraordinary part to me was the following:

The brief, which proposed affirming the appellate decision against RIAA and MPAA members, described the Creative Commons as a group with an award-winning project endorsed by many, including ex-RIAA chief Rosen and former MPAA leader Jack Valenti. It also listed as supporters the artists whose music was on the Wired CD.

The piece then goes on to describe an apparent conversation that Butler had with Rosen, in which Rosen apparently objected to how she understood how her name was used. The reporter thus becomes actor, stirring up a controversy about whether the target of her piece has misbehaved.

Here’s the brief. As you’ll see when you read it, we mention Rosen and Valenti in the section titled “Interest of Amicus” — a part of an Amicus brief which explains who the organization filing the brief is. What we say is this:

“The project has been endorsed by former MPAA president Jack Valenti, and by former president of the RIAA Hilary Rosen.”

No where in the brief do we suggest that Rosen or Valenti supported the argument we make in the brief. What we assert is that they endorsed the “project” — which they have.

More extraordinary is the statement about the artists who were on the Wired CD. Again, here’s what Butler wrote:

“[The brief] also listed as supporters the artists whose music was on the Wired CD.”

Here’s what the brief says:

“As part of a feature about Creative Commons, Wired magazine has released a CD with 16 tracks licensed under a Creative Commons license by artists including, among others, the Beastie Boys, David Byrne, Gilberto Gil, Chuck D, and Le Tigre.”

Notice, the brief says nothing about the artists being “supporters” of Creative Commons. It simply lists who was on the CD. Butler’s statement — that we listed them “as supporters” — is just false.

Now you might think, well, cut her a break. She’s just a journalist writing for Billboard. But again and again, Butler reminded me that she had in fact been a practicing lawyer. Her editors indicated the same. So I don’t quite know how to understand a lawyer who can’t read an amicus brief — or for that matter, a lawyer who doesn’t know the difference between putting something “into the public domain” and licensing it. These could well just be mistakes, of course. But they are surprising from someone with the experience she has.

The fair criticism of the article is that we don’t do enough to warn people, or to push them to consult a lawyer first. That’s a good point, and we’re thinking about ways to enable referrals, and to do more than we already do to educate. Help here would be greatly appreciated.

It’s also true, as Butler says, that there’s a “blurring” between Creative Commons and the views of people like me (though my view of course is far from the view criticized by Israelite). I’d love — really really love — to find someone to replace me who might erase such a blur. I am not Creative Commons. It was not my idea. I am just devoting as much time as I can to push its message, and the tools it enables. I’d be very happy to find a way to spend less.

My favorite part of the article is the quote from Cary Sherman at the RIAA. God bless that man. As he is quoted,

“If a creator wants to dedicate his work to the world or wants to allow others to use it with the promise to credit the author, there has been no mechanism in place to provide public notice,” RIAA president Cary Sherman says. “The Commons approach would basically solve this problem.”

Exactly right. We’re giving artists free tools. What they do with them is their choice. There are many who believe, as Butler quotes Andy Fraser to say, that “[n]o one should let artists give up their rights.” “Let.” Read that word again: “let.”

In my view, it is the artists who have the rights. And no one should take the role of deciding what we “let” artists do. Neither should anyone interfere with artists doing what they think best. Of course, and again, education is key. No one should be tricked. No one should waive rights without understanding what their doing. But neither should anyone think themselves entitled to wage war against artists doing what artists choose. Or if they do want to wage such a war, then let’s at least be open about the paternalism in the position. If we’re not going to “let” artists select Creative Commons licenses, then are we going to “let” them sign recording deals? Because I promise you this: there are many many more artists who are upset with their recording deals than with the spread they’ve enabled using Creative Commons licenses.

Butler’s first article stated that Mr. Sukin is “lobbying” against Creative Commons. It’s time we have an open conversation, Mr. Sukin. I challenge you to the sort of duel decent people engage: a debate. Let’s let both sides be heard, and let’s then “let” the artists decide.

  • Joseph Pietro Riolo

    I agree that the article written by Susan Butler is
    not completely accurate and took few things out of
    context.

    About Founders’ Copyright, I want to point out that
    what O’Reilly is really doing is not putting works
    under the true Founders’ copyright but under the
    modified Founders’ copyright. O’Reilly will put
    the works under attribution license after 14 or
    28 years. See the second paragraph on
    http://creativecommons.org/projects/founderscopyright/oreilly.

    In any way, Founders’ Copyright is really unpopular,
    when compared with other licenses. Susan Butler
    was making a mountain out of a molehill.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

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

  • http://www.tsujiru.net Thom H

    Thank you for dealing with this calmly and in detailed patience. I can easily see how Bulter’s article could have engendered a different response.

    Part of this, as I suspect you know, traces back to RM Stallman whose posturing and rhetoric has not always been helpful.

    The Creative Commons license, like indeed the various Open Source licenses, exist within and under current law. As you rightfully suggest, these are about giving people–the creators–choices.

    Any attempt to present the Creative Commons as extra-illegal or illegal is clearly wrong and even absurd.

    This swings free, however, of the efforts of many individuals to participate in the legislative process. Likewise, the debate over copyright lengths.

    I note that the economist Arnold King, writing for TCS, observes: “Economists agree on many things. . . . we all support Lawrence Lessig in his attempt to overturn copyright extension (the Sonny Bono Act). “

    Whereas King can’t truthfully speak for all economists, his remark does remind us that the public domain, the Creative Commons, and more reasonable intellectual property laws are vital to our social, cultural and economic health and well-being.

    Contra Stallman, we should stop presenting Open Content licenses as anti-market, anti-business, etc. This simply–as the record of success shows–is not true.

    The success of the Creative Commons, which offers a variety of license options, requires that we recognize and respect property rights.

    But it does not require that we waive our rights as citizens to participate in discussions of public importance.

  • http://k.lenz.nameLB/ Karl-Friedrich Lenz

    Actually the case of Mr. Fraser raises an interesting point.

    What if someone uses a CC license allowing commercial use and later on the work in question becomes a bestseller? Is that author able or should he be able to reconsider, once he knows of the big value? Or should we require all deals to be final? Is there any way to revoke CC licenses, at least for future use?

    German copyright law gives authors a right to reconsider any deal with publishers once it becomes clear that the terms of the deal are “grossly disproportionate to the income from the use of the work” (Article 36 of the code). The German copyright law does not let authors give up that particular right.

    Should CC licenses have this built in as well? Or do they already have it built in?

  • lessig

    Professor Lenz raises a great question. As they’re written, Creative Commons licenses run as long as the copyright (which we all know is a “limited term”). So if you’ve given away commercial rights, anyone who has accepted the license before you revoke the offer continues to have rights. (Obviously, if you don’t give away commercial rights, there’s no problem exploiting commercial rights exclusively). I’ve tried to convince my board of the virtue of a limited term CC license. They don’t support the idea. Maybe if more pushed, we’d get some movement.

  • Joseph Pietro Riolo

    To Karl-Friedrich Lenz,

    Section 203 in the U.S. copyright law allows the
    authors to revoke license anytime during the
    five-year period at the end 35 years after grant
    (I am simplifying – read the whole section to get
    the right details). So, if it happens that a
    book becomes a bestseller, author can revoke
    license but he has to wait for 35 years after
    grant or publication. This right of termination
    is considered by some as non-waiverable in spite
    of language in license that suggests otherwise
    but it has not been tested in court (because the
    section will not be operative until 2013).

    Not too many authors and artists, regardless of
    their positions in respect to copyright, know that.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

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

  • http://www.simonpole.ca Simon Pole

    A few comments:

    The musician quoted in the article should have a little self-respect. I think he’s internalized the notion that artists are tempermental idiots who can’t deal with the details of adult life. If he thinks artists aren’t capable of looking out for their own interests — well, that’s pretty sad.

    And it also raises the question, who exactly does he think is looking out for him? The RIAA? The very record companies who exploited musicians for the first seventy years of recorded music? If he thinks his record company is looking out for his interests, he has deluded himself again.

    Someone mentioned Stallman as being anti-business or anti-commerce. This is untrue. What Revolution OS. In this film he says clearly, “There is business to be done around Free Software.”

    If you believe the Stallman’s image is somehow an impedement to acceptance of CC, you might want to stop spreading FUD about him.

  • http://k.lenz.name/LB Karl-Friedrich Lenz

    I agree with what Professor Lessig said above on a limited term license, since I proposed exactly that about two years ago here.

    However, that doesn’t solve all the cases. If the author added a time limitation (which authors can do right now, even if it is not the default), then he can decide freely again later on. However, not all authors will do so. That leaves some authors who give away rights they would not have given away if they had known of their value at the time.

    So the question remains if someone should be able to revoke a Creative Commons license at least for the future if they find out that the work is a bestseller. This would be in the spirit of Article 36 of the German copyright code.

    While I don’t have time for an exact analysis right now, my first impression would be that authors should have the right to revoke Creative Commons licenses for any use occuring after the revocation if the work turns out to be a bestseller later. One might want to consider adding language addressing this question one way or another to the Creative Commons default licenses.

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

    Regarding the term of licence for a creative common licence. Couldn’t a licensor simply insert the clause “These rights are granted for a term that shall end on the day of (dd/mm/yyyy)”.

    There should be no restriction on a licencing party making a grant and all subsequent grants being bound by that original licence. Of course the problem with derivative works is probably not addressed – which may be the boards objection to time limitations on CC licences.

    It could get very messy from a legal point of view.

    Plus I do agree that the US copyright term is ridiculously long. Particularily for sound recordings made before 1972 which will remain in copyright until 2067 according to the recent New York Supreme Court Decision in Naxos Records. If anyone has heard more about the decision Id be appreciative.

    Despite all this the Creative Commons licence is a useful apparatus to creators who whish to publicise thier works through the power of no cost marketing. This may increase the culture and contemporary public domain – or it could just flood us with millions of although uncensored works.
    Still it means less lawyers to write copyright licences and increasing responsibility over dealings with one’s own works – and this is always a good thing.

  • Eduardo

    If you choose a CC license for your work, you do it in exchange for something — be it publicity, ideals, whatever. So you get something for it, although in most cases it’s probably not money.

    It would not be fair if you cancelled the licence later, based on the “success” of your work — a “success” probably due, at least in part, to the permissions you gave others with the license. How do you compensate people who made some kind of use of your work according to the license? And how do you tell them, if you don’t even know them? Or should everybody look once a day if you chose to revoke you license?

    I think the situation here is not exactly the same as in the German example. In the German situation, the publisher is necessarily getting lots of money from the deal. While this is possible with some CC licenses, it’s not the case with others. The thing is, you can choose a license which doesn’t give away commercial rights. Or, if you do, you can change you mind later and not license *other works* of yours the same way. Don’t forget that after your work “A” becomes a bestseller, you have much better chances of making your work “B” another bestseller. And maybe work “A” became a bestseller because somebody found it, picked it up and exploited it commercially just *because* it had a particular CC license. Maybe we should wait and see what happens with all this in a few years.

    I guess it would be OK (and probably unavoidable) to add some optional expiration date to CC licenses. After all, it’s all a matter of “giving choices”. But it would be more complicated, and works under such licenses will probably be less useful for others, and less used.

    (Sorry about my poor English.)

  • Josh Stratton

    I don’t think that statutory revocation is a good idea, and I don’t think it should be supported by CC. It’s paternalistic towards authors, it disrupts norms of contract law, and is unfair.

    In every other walk of life, you cannot escape a contract merely because it later turns out to be a bad one. Unless you’re a child, and then only sometimes, because you don’t know any better. Or in some cases of fraud or other malfeasance (e.g. certain wrongful securities trading). If you sell your house and land, not knowing its true value, then the world says ‘tough.’ Perfect knowledge would be great, particularly knowing the value of something in the future (should I trade my Ted Williams rookie card for two John Does, the year they came out?). But no one has it, and it’s pretty dumb to start letting people go back on their deals years or decades after the fact.

    Particularly because the authors sold out. They were unwilling to take a risk themselves, sold rights in their work for cash now, and let publishers spend a fortune making a work popular. It is patently unfair for authors to free ride in this manner, snatching up rights after not taking a chance. Grabbing them, in spite of the massive amount of value that was created not due to their own work, but due to the publishers. You can, after all, write the best novel ever, but if you can’t get people to read it, who cares? Marketing takes money. Printing takes money. Spending this money is a big investment. It’s wrong for authors to get the fruits of other people’s money in such a direct manner.

    If an author doesn’t want to transfer rights, then he doesn’t have to. No one can make him. He doesn’t know if it’ll be a hit or a flop. He probably hasn’t made it so, yet — the publisher will make a significant contribution, which the author apparently doesn’t want to. Just like everyone else, other than children and the victims of fraud, let him reap the consequences of his decision, for good or for ill.

    I simply cannot see that there is any just or rational cause to allow authors to be indian givers.

  • three blind mice

    The success of the Creative Commons, which offers a variety of license options, requires that we recognize and respect property rights. But it does not require that we waive our rights as citizens to participate in discussions of public importance.

    perfectly reasonable Thom H, but it does tend to confuse things for people who are only casually informed about the issues.

    professor lessig is quite right that a journalist has a responsibility to be more than casually informed – especially one who portrays herself as having particular authority. clearly, ms butler is neither informed nor an authority on this subject.

    while not excusing her inexcusable article, one has to appreciate that this is a very complicated and nuanced discussion. it is easy to become confused.

    on one hand, for example, professor lessig makes statements like this:

    In my view, it is the artists who have the rights. And no one should take the role of deciding what we “let” artists do. Neither should anyone interfere with artists doing what they think best.

    in the context of creative commons this perfectly consistent with everything the good professor has written. we believe that the professor “really” means this. creative commons is simply a very permissive copyright license, voluntarily chosen by the artist.

    but in the context of professor lessig’s passionate advocacy of P2P networks (which rob artists of any practical control over how their work is copied and distributed,) this statement and others appear starkly inconsistent.

    Neither should anyone interfere with artists doing what they think best as long as artists don’t interfere with computer users doing what they think best.

    No one should be tricked. No one should waive rights without understanding what their doing. but we can’t do anything about computer architectures that effectively waive the rights of artists without harming innovation.

    these amendments do not seem unfair and it is these apparent equivocations that make professor lessig’s advocacy – taken as a whole – very easy to misunderstand.

    Of course, and again, education is key.

    education – not advocacy. once you cross that line, it’s hard to go back.

  • http://www.simonpole.ca Simon Pole

    Three Blind Mice,

    This statement about p2p is based on a fallacy:

    which rob artists of any practical control over how their work is copied and distributed

    Under the old system of distribution, artists had “practical control” over how their work was distributed? I would say no. This control was universally signed over to record companies in artist deals.

    Do artists have “practical control” in how their work is distributed in the traditional bricks and mortar retail way? Again, no. Wal Mart can and does refuse to sell the work of certain artists, and there is nothing they can do about it. This is certainly not “practical control.”

  • Nick

    “The fair criticism of the article is that we don’t do enough to warn people, or to push them to consult a lawyer first. That’s a good point, and we’re thinking about ways to enable referrals, and to do more than we already do to educate. Help here would be greatly appreciated.”

    I am aware of the organization called Lawyers for the Creative Arts. They may be willing to help. They are a non-profit group that does pro-bono work for artists who meet certain financial criteria. Perhaps you can contact them and see if they are at all interested.

    http://law-arts.org/

  • three blind mice

    simon pole: Again, no. Wal Mart can and does refuse to sell the work of certain artists, and there is nothing they can do about it.

    c’mon simon ploe. of course artists cannot force wal mart to sell their CDs any more than they can force you or us buy it.

    we’ve never been inside (and never will set our feets into) a wal mart so we can’t say what happens inside those stores, but we reasonably assume that artists can stop wal mart FROM selling their copyrighted CDs without a license. this is practical control.

    the problem of enforcing copyright in the presence of P2P networks is well-documented. here artists have no practical control over how their work is copied and distributed. and if the EFF et al have their way, artists never will. this is forcing an artist to accept a far-less-than-creative-commons license against her will.

    so let’s be honest about this. saying you respect the right of an artist to choose under what terms to license her work while defending the right of software developers to create networks that deny the artist any practical control over that choice is at best equivocation. at worst it is rank hypocrisy.

    there is plenty of grist for ms butler’s mill. pity she doesn’t know enough to find it.

  • http://www.elitism.info/journal/ David

    Copyright isn’t a natural right, like other modes of property can be argued to be. As a statutory right it is limited by other considerations. For example in many European jurisdictions there’s a universal permission for private copying without the intent to profit. Spain is one of these jurisdictions, where, it seems so far, p2p networks and their use to download (and share) copyrighted works is legal. Of course legislation on these matters is in flux, and I haven’t looked into this for a while, so it might have changed. I would imagine this is also the case in other jurisdictions, as it seems to be in Canada: sharing a file on p2p being equivalent to having a photocopier in a library. It is interesting that, in Europe, collecting societies get very significant amounts of money as levies on recordable media (basically paying them for the private copying which is a statutory right of citizens) and yet insist in controlling how such recordable media is used. In my opinion, they can’t have it both ways: if you charge a tax on blank CDs, CD writers, and (as it has been proposed though not yet implemented, to my knowledge) broadband Internet, you can’t then complain that citizens are making use of such media for purposes which you have already been remunerated for, id est, private unauthorized copying without intent to profit of copyrighted works.

  • http://www.simonpole.ca Simon Pole

    Three Blind Mice,

    Again you make a mistake:

    but we reasonably assume that artists can stop wal mart FROM selling their copyrighted CDs without a license. this is practical control.

    The opposite is in fact true. No record company would give artists the option to veto where a record is sold.

    In fact, since most record companies are publicly owned, it is probably illegal for them to tell a retailer they can’t sell a record.

  • ACS

    TO Simon Pole

    I disagree with your interpretation of 3bm’s statements.

    3bm is certainly aware that assignment or exclusive licence of rights in copyright to a record company denies thier veto over selling works by way of infringement proceedings. I think we can take 3bm’s comments to refer to the situation where the author or artist is still in control of thier copyrights. In this case substitute ‘artist’ with ‘copyright owner’ and you will find that 3bm is quite correct.

    With regard to the legality of selling or not selling to certain retailers you will have to brush up on your competition law. A boycott of a retailer does not constitute a breach of competition standards (at least in Australia and as I understand it under the anti trust legislation) unless there is a primary contract with a competitor that creates the boycott or a contract requiring a second line to be purchased. I also understand that there maybe a misuse of market power issue but I do not think it could be raised without a great effort.

    In any event, the general character of the law is to prevent unfair competition rather than force proprietary or public companies to sell to any person that requests the goods. Such a notion is against the general public policy of freedom of contract.

    In any event, 3 BM is correct in his assertions regarding artist choice over peer to peer networks – remember simon pole that at least the artist could choose to hand thier rights over to the record companies – they never get that choice with peer to peer.

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

    In any event, 3 BM is correct in his assertions regarding artist choice over peer to peer networks – remember simon pole that at least the artist could choose to hand thier rights over to the record companies – they never get that choice with peer to peer.

    If you do get tied down to a contract you cannot control whether your album is released or whether you ever see any profit from your work once the company’s accountants have finished being creative.

    But supporting the idea of record companies does not neccessarily mean supporting those companies denying artists their work and money.

    Likewise, supporting the idea of p2p doesn’t mean supporting current illegal filesharing. Particularly if you advocate Alternative Compensation Systems and push businesses to find ways to make money from this amazing new technology.

    I’m no fan of ACSes, but until artists start refusing radio and performance royalties, I think that resistance to the idea of them is telling.

  • http://www.simonpole.ca Simon Pole

    ACS. This statement I believe would only apply to perhaps 0.01% of recording artists:

    I think we can take 3bm’s comments to refer to the situation where the author or artist is still in control of thier copyrights.

    A musician usually only controls their copyrights late in their careers if they been successful enough to negotiate this in a contract, or buy them back from the record co. These are artists at the level of the Beatles, U2 and The Who. Very, very rare — and the overwhelming exception.

    And in regards to it being illegal for a public company not to sell to a retailer. My point is not in regards to contract law, but in duty to the shareholders. A public company has to maximize value for shareholders. This is why things like environmental standards get such short shrift. If a record company refused to provide its product to Wal Mart, you’d have a shareholder lawsuit on your hands very quickly.

  • three blind mice

    simon pole, are you just being difficult, or do you really not get this?

    how about this guy then.

    bob mould hasn’t signed with a record label. he self-publishes his music. here are his thoughts about having his unreleased album posted on-line.

    For the record: this project has taken me 3 years (on and off) to complete, with a price tag of around $50,000. Paying musicians, engineers, recording studios, travel costs, mastering, graphic designers, calling in tons of favors. Upgrading equipment, legal and management fees. There was no evil label paying these costs – I write the checks. I get paid on records sold. This is how I do my business. The price tag doesn’t account for my own time and effort, for which I typically get paid fairly well. After 26 years on the job, I have earned my keep.

    Now, people I do not know are making my work available for free. I know most fans want to do the right thing, and buy the music. I also know that the temptation to download the album for free is there, because it’s my new record, and people have heard good things about it, and they want to hear it as soon as possible. (emphasis added)

    bob mould has been denied that choice and we suspect no one from the EFF will run to his defense.

    again – saying you respect the right of an artist to choose under what terms to license her work while defending the right of software developers to create networks that deny the artist any practical control over that choice is hardly a consistent point of view. it is understandable that people casually acquainted with this issue, like ms butler, might be confused.

  • http://www.simonpole.ca Simon Pole

    Three Blind Mice,

    Let me ask you this question. If Bob Mould’s music was played on the radio, could he say:

    Now, people I do not know are making my work available for free.

    Does Bob Mould have any “practical control” over his work on the radio? Could he tell a radio station not to play his song?

    If someone hears one of his songs for free on the radio, is Mould being ripped off by that listener? After all, the listener isn’t paying Mould for the right to listen to the song.

  • poningru

    again – saying you respect the right of an artist to choose under what terms to license her work while defending the right of software developers to create networks that deny the artist any practical control over that choice is hardly a consistent point of view.

    I have to disagree with that statement, simply because an enduser may use the technology to infringe upon an artist’s right does not mean that the right of the software developer and other end users has to be infringed upon. The answer is education and advocacy: spreadcc anyone?

  • three blind mice

    simon pole, ok, you really don’t get it so we’ll indulge you with one more reply before leaving the thread.

    Does Bob Mould have any “practical control” over his work on the radio?

    yes. radio stations pay a license fee for every copyrighted song they play. that’s how commercial radio works. they pay a fee EACH time they play a song.

    Could he tell a radio station not to play his song?

    yes. first he sends a cease and desist letter. then he sues them for copyright infringement.

    If someone hears one of his songs for free on the radio, is Mould being ripped off by that listener? After all, the listener isn’t paying Mould for the right to listen to the song.

    no. the radio station pays the copyright owner and the listener “pays” the radio station by listening to the advertising interspersed between songs.

    when people download his music over a P2P network, the copyright owner gets nothing.

    poingru, your statement ignores the fact (well documented) that 90% of the traffic on P2P is illegal file “sharing” (technically there is no sharing going on, it is copying.) yes, it MAY be used for legal purposes, but you cannot ignore the rest. indeed the P2P architecture itself was designed following the napster decision to avoid responsibility for infringement.

    tim wu’s observation that P2P is willful blindness to copyright infringement is what the supreme court decision will hinge on.

    we think the betamax substantial non-infringing use defense rings with a hollow thud when non-infringing use is insubstantial.

    mice out.

  • http://www.simonpole.ca Simon Pole

    Three Blind Mice,

    You approve of the system radio uses to reimburse copyright owners. But your treatment of p2p networks shows you are ignorant of the history that lead to the radio licence system.

    Radio was once considered a disruptive, infringing technology as p2p networks are now. Records were played without reimbursement to copyright owners, just like p2p networks now.

    The solution to this problem, at least in the US, was not to outlaw or cripple radio, as you suggest might done with p2p. Instead, law makers imposed a compulsory licence and royalty system.

    Surely, by your own logic, you must admit that the solution to the “p2p problem” is a similar royalty system imposed on p2p networks. p2p dowloads would be as easy to chart as radio spins, and an accompanying levy on recordable media (already used in some countries) or on montly internet service could provide the funds. Advertisement, something you accept as legitimate way to pay copyright holders, could also be used.

    Then you could go to bed with a warm feeling, knowing artists like Bob Mould are not threatened by “people I do not know are making my work available for free.”

  • poningru

    poingru, your statement ignores the fact (well documented) that 90% of the traffic on P2P is illegal file “sharing” (technically there is no sharing going on, it is copying.)
    Ah please provide the study, I have seen numbers from 30% to 95% please provide the study you quote. I would say a huge number if not the majority is used to download and distribute legal software- OSS (atleast the places I peruse)

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

    an enduser may use the technology to infringe upon an artist’s right does not mean that the right of the software developer and other end users has to be infringed upon.

    Poningru: With respect to the p2p software developers the law states that an invention, method or system creates liability for secondary copyright infringement when it can be used to exercise rights in copyright, in the case of peer to peer reproduction and communication of works, and is not capable of a ‘substanital non-infringing use’ Beta Max Case.

    The question is where are the licences? Show me one licence that has been passed over Grokster or any peer to peer network. If the system itself denies the power to pass licences to communicate or reproduce the works then THERE ARE NO NON INFRINGING USES. This argument was missed by the court in the lower jurisdiction and was only raised by the AIPLA (member) in the Supreme Court.

    SO legally although we may see a political decision in the Supreme Court p2p is out until they allow for licences to be passed on the system.

    Surely, by your own logic, you must admit that the solution to the “p2p problem” is a similar royalty system imposed on p2p networks. p2p dowloads would be as easy to chart as radio spins, and an accompanying levy on recordable media (already used in some countries) or on montly internet service could provide the funds

    Simon Pole by your own logic Grokster should be liable for the licence fees as the ‘broadcaster’ (and I loathe to call it that). Lets just see if they pay!!!!!

    And by the way – failure to pay a broadcast licence fee is an infringement of copyright.

    In any case your arguments seem to support the proposition that all record companies are large corporate machines. This really doesnt recognise the hundreds of thousands of individual record producers around the world. Furthermore if your ideas were to take hold it would effectively limit the recording industry to these huge companies.

    Oh and by the way – get a grip on corporate law. Shareholders cant make that sort of decision makings – there is a definite separation between member and officer decision making that you havent got a hold on yet.

    To Three Blind Mice

    Keep up the good work mate. Have a look at my argument on non-infringing uses above.

    PS- It good to see that there is some sanity in this madness. Politics?

  • poningru

    If you can find me a system that creates such a licence for itself I would be amazed, for example the VCR (or Betamax) the ‘licence’ states that you can keep the recorded show only for short periodes of time (for time shifting) but a vast number of people recorded and stored the shows. Point I am making is you seem to believe that the infringing tech has to make such a license that there is no infringement by somehow compensating the creator of the artistic work fully and acurately, even though this is not possible.

  • http://www.simonpole.ca Simon Pole

    ACS, you say:

    Simon Pole by your own logic Grokster should be liable for the licence fees as the ‘broadcaster’ (and I loathe to call it that). Lets just see if they pay!!!!!

    Is the maker of a radio responsible for paying royalties to artists whose music is listened to on a radio?

    This is the crux of the entire argument isn’t it?

    Some p2p software acts like a radio receiver (that is, the software is separate from the network it uses: eg – Gnutella clients). Other p2p software uses its own network (I think eDonkey is one of these).

    Companies in the second category would probably be perfectly happy to pay licence fees on downloaded music, if the RIAA only let them. (In the case of radio, you must recall such an arrangement had to be imposed from above).

    In fact, I imagine they would jump at the chance to pay licence fees. They’d make a fortune — legitimate, licenced downloads.

    But of course, the RIAA would lose control of their old business model. And as you and Three Blind Mice have insisted, the issue is all about control.

  • http://blog.mintruth.com Winston Smith 6079

    Well, I say it’s not about the copyrights at all. These people aren’t supported by those producing copyright work! These people are paid by those who are in the business of taking ideas and marketing them and distributing them to the people.

    It doesn’t have anything to do with the state of the copyright at all. It’s all about distribution. They are angry because open(-like) licenses are cutting out their level of business. What would a Sony do without content producers? They aren’t producers. They have the art down from equipment to content licensing and distribution to even licensing content creation (Playstation ?).

    I don’t read this blog a lot. I usually get into these discussions on slashdot. I’m sorry to be way off. I just always stress IAADS! It’s All About Distribution Stupid!

    :)

  • Aussie Cynic

    I love the quote in the Billboard article that “[n]o one should let artists give up their rights”.

    Why? The irony is that here in Australia, the music industry’s mouth piece (aka the collecting society APRA) requires that all its members absolutely assign to it all their performance rights to their music! Check out clause 17(a) of the APRA Articles of Association at http://www.apra.com.au/downloads/CorporateDocs/APRA%20Constitution%2005.pdf. Note there are extremely limited and cumbersome re-assignment and licence-back provisions in clause 17(b) – I wonder what the statistics are for people who have actually successfully used them?

    The ultimate paradox is that APRA has come out with all guns blazing against Creative Commons in Australia. Looks to me like APRA paternalism at best and hypocrisy at worst.

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

    TO Poningru

    If you can find me a system that creates such a licence for itself I would be amazed, for example the VCR (or Betamax) the ‘licence’ states that you can keep the recorded show only for short periodes of time (for time shifting) but a vast number of people recorded and stored the shows.

    The Betamax standard states that there must be a ‘substantial non-infringing use’. It does not matter that this use is not practical in effect. You may recall that Universal Studios adduced evidence that up to 70% of the uses of beta max were infrigning. The court didnt care because the non infringing uses (IE storing the information for a time delayed viewing) did exist. Therefore the device (Beta cassettes) did not create secondary copyirhgt infringement liability.

    But the question you want to know is where were these licences? Well that is easy. The broadcaster implied a licence to time-shift viewing of the copyright broadcast because the broadcast was not limited to “You must watch this subject matter at this particular time”. The first viewing of the matter would justify the recording of the material. The second viewing would create liability for infringement but because of the first viewing secondary infringement by SOny was avoided.

    I hope that answers that line of questions.

    By the was – as a matter of law copyright infringement should be available to copyright owners who have thier works taken without thier permission. The permission is the licence and the copyright owner should be able to require certain rights or compensation for giving thier permission. This permission does not come free of charge unless that is the copyright owners choice – or do you believe we should again quash artists interests by removing thier ability to choose?

    TO Simon Pole

    Is the maker of a radio responsible for paying royalties to artists whose music is listened to on a radio?

    This is the crux of the entire argument isn’t it?

    Some p2p software acts like a radio receiver (that is, the software is separate from the network it uses: eg – Gnutella clients).

    You have stumbled onto the reason i loathe to call P2p a broadcaster and by your own argument defeated your previous argument that p2p should be treated as a broadcaster.

    Who do you suggest pay the licence fees?? The p2p provider or the uploader?? In which case how do you ensure payment of the fees?? and even more importantly: How do they pass a licence to the next person and does that next person also have a licence to save the file in thier Grokster file??

    The truth is that you dont know the answer to these questions because they would not fit into a model endorsing the use of peer to peer technology.

    Peer to peer architecture would have to be radically altered to allow for a compulsory licence system due to the number of people using the system. Do you think everyone who uses peer to peer will input thier credit card numbers??

    So away from peer to peer to private network uploading p2p like e-donkey

    In fact, I imagine they [private network p2p ed.] would jump at the chance to pay licence fees. They’d make a fortune — legitimate, licenced downloads.

    Well thats fine and all but it doesnt (a) justify the illegal distributions they are doing at the moment and (b) it would have to be on the copyright owners terms and conditions of licence.

    Well those terms and conditions appear to be the crux of this argument: whether and how they should be applied.

    I consider that I know a bit about this field but I dont know every possible term and condition of licence arrangements because of the possible complexity but you should recognise or at least attempt to reconcile whether they should be applied and then whinge about thier business practices rather than attempting to subvert their rights to licence work by denying secondary copyright infringement!!!

    And thats about all I have to say about that.

    By the way – Winston Smith 6079

    We are arguing about copyright because the law (in the US, Australia and almost 129 other countries) makes creation of devices that can infringe copyright unlawful under the respective copyright acts. The standard for this secondary infringement depends on the particular country and we appear to be focusing on Aus and the US. So essentially yeah distribution technology and methods and business methods has a heap to do with copyright law.

    Till next time

  • poningru

    so now you are getting into implied licenses, not saying thats a bad thing.
    And about your second point- my point exactly: it does have a significant non-infringing use.

  • Josh Stratton

    ACS–

    The Betamax standard states that there must be a ‘substantial non-infringing use’.

    No, it states that there must be a potential substantial noninfringing use. Not an actual one, though I suppose the latter would be preferable.

    The court didnt care because the non infringing uses (IE storing the information for a time delayed viewing) did exist. Therefore the device (Beta cassettes) did not create secondary copyirhgt infringement liability.

    But the question you want to know is where were these licences? Well that is easy. The broadcaster implied a licence to time-shift viewing of the copyright broadcast because the broadcast was not limited to “You must watch this subject matter at this particular time”. The first viewing of the matter would justify the recording of the material. The second viewing would create liability for infringement but because of the first viewing secondary infringement by SOny was avoided.

    No. A license is an authorized use. While certainly the Court did note that some copyright holders wanted viewers to be able to time shift, it also relied upon fair use. If there were a license, there would be no such thing as time shifting as a fair use — it wouldn’t matter if it were fair or not, and there’d be no point in considering the question. Only if time shifting is unauthorized altogether for some particular work would fair use be an applicable defense.

    One of the things I loathe about the computer industry is that they’ve got so many people thinking that there is licensure when there isn’t, and that licensure is generally a good idea, when it often isn’t.

    This permission does not come free of charge unless that is the copyright owners choice – or do you believe we should again quash artists interests by removing thier ability to choose?

    Sometimes, yes. Every defense and statutory exception in copyright law, and the finite bounds of copyright itself represent limits on the powers of copyright holders. A copyright holder has no legal right — by virtue of his copyright — to deny fair use, first sale, etc. as the law sets them forth. Given that copyright exists to serve the public, not artists, this seems advisable.

  • http://commonsmusic.com/ Commons Music

    I think the arguments over the philosophy and legality of P2P networks here is interesting but misguided, on both sides.

    P2P networks, even if the Supremes go against Grokster, are here to stay. There is literally no way to get rid of them. How can you enforce tens of millions of people? It’s no possible. Furthermore, how can you enforce per program? Another one will pop up, and on and on and on.

    And have the threat of lawsuits been staving off the tide of downloaders? Well, no, not really. In fact, according to some data, the population of P2P users has almost doubled since January of 2003 (and that’s not including BitTorrent, which has estimates planting a third of all bandwidth on the internet as using it).

    There really is no way to stop it.

    Thus, I think the answer to our problems lies in trying to find an equitable solution, not bitching and moaning about perceived wrongs on either side of the table. Obviously, Commons Music believes it has the solution, but we’re not going to come up with creative and thoughtful ways to provide a way into new media while talking over each other like a bunch of children (“He copied that work!” “Oh yeah, well he’s stealing my freedom! Nya, nya, nya-nya-nya!”).

  • http://commonsmusic.com/ Commons Music

    I meant “It’s not possible.”

    There’s the lesson: Always proofread.

  • Pete

    I have a question as a musician thinking about CC. If I grant a Share Music CC and allow people to distribute my music anywhere they like without selling it, what happens a year later if I get an offer by a good indie label to release the song as a single? Since I can’t revoke the license, and wouldn’t know how to find who was distributing the song for free, haven’t I basically killed future sales of the song now that tons of people got it for free and those distributing it non-commercially (ie: not selling it for profit) continue to have the right to do so? Who’s gonna pay for something they can legally get for free? Maybe I didn’t give up commercial rights…but it sounds like I may as well have. Or did I misunderstand something?

    I’m not so sure CC is a good thing when it comes to music and you’re looking to earn money from it. I can easily get my music heard by streaming it securely on my website, on webcasts around the internet, and college radio without allowing downloads or copying. I know that pisses off people who want “something for nothing”, but I don’t want to be paid “nothing for something”.

    What if someone picks my song to play as background music on a website that supports racist views, which I and most people oppose? With CC, he can just take the song, use it legally, and I have no legal recourse if I even find out he’s using it. Or did I misunderstand something? I would rather have someone ask me first so I could decide whether or not I want them using my material for such purposes rather than just say, “Here, take it.” to everyone who passes by.

    If someone can indicate how my statements could be incorrect, I really would like direction…honestly. I’m not at all closed to assistance. As it stands, I think CC has good intentions, but mostly benefits those looking to use material…not those who create it. I understand that the CC organization believes otherwise, but I can’t see how musicians benefit from this in a way that outweighs the possible dilemas. Yes, I’m aware that a former RIAA exec supports it…I read the Billboard article. Just because he has credentials doesn’t mean he speaks for everyone. And yes, I’m aware that some small record labels and music websites support it and that some even use it as a marketing tool. I’m not looking for examples as much as legal facts relating to CC and the specific issues I mentioned here.

  • http://en.wikipedia.org/User:JesseW Jesse Weinstein

    Well, I’ll try to answer your questions, Pete.

    >what happens a year later if I get an offer by a good
    > indie label to release the song as a single?

    You take it, of course! ;-) As the copyright holder, you can sign any number of non-exclusive contracts, and you can release copies of your work under any number of different licenses.

    >Since I can’t revoke the license,
    > and wouldn’t know how to find who was distributing the song for free,

    Well, you would be able to find some of them – the ones who were were listed on google or other search engines, the ones who had emailed you thanking you for making the song available, the ones on your mailing list(if you don’t have a mailing list yet, you should), etc…

    > haven’t I basically killed future sales of the song now that tons of people got it for free

    Some of those tons of people, I hope, would like your music enough to become fans; and fans want to hear your future music, and are willing to pay for it.

    > and those distributing it non-commercially (ie: not selling it for profit) continue
    > to have the right to do so?
    >Who’s gonna pay for something they can legally get for free?

    Quite a few people, especially if you make it clear that this is how you will be able to make more music, and/or if you add some new material, and/or a if the “good indie label” helps produce a nice package for your songs.

    > Maybe I didn’t give up commercial rights…but it sounds like I may as well have. Or
    > did I misunderstand something?
    > I’m not so sure CC is a good thing when it comes to music and you’re looking to earn
    > money from it.
    > I can easily get my music heard by streaming it securely on my website,

    How many people come to your website? How much money do you have available to pay for bandwidth for all that streaming?

    > on webcasts around the internet, and college radio without allowing downloads or
    > copying.

    You can do all these things without allowing *legal* copying, but don’t make the mistake of thinking that will prevent *illegal* copying from being done. It has been done since at least the time of home cassette players, and will still go own independent of CC, or you.

    > I know that pisses off people who want “something for nothing”, but I don’t want to be
    > paid “nothing for something”.
    > What if someone picks my song to play as background music on a website that
    > supports racist views, which I and most people oppose? With CC, he can just take the
    > song, use it legally, and I have no legal recourse if I even find out he’s using it. Or did I
    > misunderstand something?

    Even with “All Rights Reserved”, you can’t prevent bad uses of your work. If someone with violently racist views were to put your music on their headphones, then go out and brutally beat up some people, then email their racist friends saying “Hey, Pete’s new album is the best for kicking the s*it out of . You should all go out and buy his music and listen to it while you attack people.”, you could do nothing to stop them.
    However, I can understand why you had the illusion that traditional copyright use would save you from bad uses of your work, since it does allow you to restrict various actions which, practically, prevent many uses of your work without your permission. It prevents someone from combining your music to some other piece of music. It prevents someone from playing your music in a public performance, although playing your music to a few friends(or fellow homicidal maniacs) is totally allowed. It prevents someone from duplicating the CD or webcast or wax cylinder your music is recorded on, except for certain circumstances (such as criticism, i.e. showing why you, personally, are a bad (or great) artist). These restrictions do encourage the illusion that traditional copyright use can prevent bad uses of a work, however, this is false.

    > I would rather have someone ask me first so I could decide whether or not I want them
    > using my material for such purposes rather than just say, “Here, take it.” to everyone
    > who passes by.

    > If someone can indicate how my statements could be incorrect, I really would like
    > direction…honestly. I’m not at all closed to assistance.

    That’s why I’m responding. I thank you for being honest with your statements, and giving me a chance to practice explaining these issues.

    > As it stands, I think CC has good intentions, but mostly benefits those looking to use
    > material…not those who create it.

    One idea underlying CC is that many who use material *are* those who create it. Sampling artists are a recent example; the many wonderful re-workings of another composer’s theme in classical music are an older example. Collage artists are another.

    > I understand that the CC organization believes otherwise, but I can’t see how
    > musicians benefit from this in a way that outweighs the possible dilemas. Yes, I’m
    > aware that a former RIAA exec supports it…I read the Billboard article. Just because he
    > has credentials doesn’t mean he speaks for everyone. And yes, I’m aware that some
    > small record labels and music websites support it and that some even use it as a
    > marketing tool. I’m not looking for examples as much as legal facts relating to CC and
    > the specific issues I mentioned here.

    I hope this answered at least some of your questions. I apologize for the lack of links/references or specific legal facts; hopefully another reader of the blog will be able to add these. Please let me know your thoughts and response, and any more questions. Thanks again for being willing to ask.

  • http://hietanen.typepad.com/copyfraud/ Herkko

    Lessig said: “So if you’ve given away commercial rights, anyone who has accepted the license before you revoke the offer continues to have rights.”

    I don’t think you can’t effectively revoke the offer. When the work is licensed to public, the license states:
    “Each time You distribute or publicly digitally perform the Work or a Collective Work, the Licensor offers to the recipient a license to the Work on the same terms and conditions as the license granted to You under this License.”

    Hence: if the work is out there you may stop distributing it, but you can’t effectively revoke it. People who receive it from some licensee still have the right to receive the work with same License. Of course if no one distributes or performs the work, there are no recipients. In such case the right holder would still risk that there are original recipients out there who are allowed to put the content online with CC license -Thus making the content available with CC license again.

  • ACS

    To all

    sorry I have been offline in the last week – work has been crazy.

    To Josh Stratton

    I understand the Betamax attention to the right of fair use in certain documents. However, all the fair uses in the amici curae brief appear to surround artists sharing thier work for remixing. It appears to me that although there is no financial profit from such a venture there is certainly a non financial gain in the commercial asset of goodwill and reputation.

    Take for example the band Wilco who released thier works for free. Due to the public attention given to thier works they became famous and were able to sign a bigger record deal. In this sense section 107 of the Copyright Act would not apply – would it??

    I also think a consideration of the effect on the potential market for a work being uploaded onto grokster would deny fair use – either because it reduces the profitability or in the case of freely distributed works it increases the recognition and saleability of those works. –> This is not like a xerox machine.

    I agree that licensure may not be the only standard but remember without a licence or other legal right being passed the equitable doctrine of ‘Fair use’ cannot be raised and the only arguments available would relate to statutory rules.

    Yes there is a lot to fair use but it is a misnomer to consider any ‘public document’ (what ever that may be) as fair use. A better term for the concept (as used in my home jurisdiction of Australia) would be fair dealing.

    I also note the dissent of Blackmun J in Betamax that states that courts should not be afraid to change the interpretation of the law for new technology. I think that this is a case where that will happen – not the least because of the damage that Grokster may do to the IP Industry.

    PS I must note that on the weekend I myself was guilty of downloading the Star Wars movie from Grokster. I couldnt help my self. I just remember thinking to myself – why should I ever go to the movies again? (Except despite having ADSL downloading a hi-res version was almost as expensive as buying a movie ticket)

    Till next time

  • Josh Stratton

    ACS–
    Take for example the band Wilco who released thier works for free. Due to the public attention given to thier works they became famous and were able to sign a bigger record deal. In this sense section 107 of the Copyright Act would not apply – would it??

    107 would not apply with regards to whatever the copyright holder was authorizing. It would still apply — assuming that they didn’t public domain their work — to the same work with regards to whatever they didn’t authorize.

    I’m not familar with the band or what they did, but let’s suppose that they said that anyone could make copies of the songs. If you made a parody, that’s a derivative work, and you still would need fair use. If you’re merely making a copy, you have authorization — there can be no infringement, and thus no cause to rely on a defense.

    remember without a licence or other legal right being passed the equitable doctrine of ‘Fair use’ cannot be raised

    You have that backwards. Only where no authorization or other statutory exception applies will a court resort to fair use. (Of course you could always raise it, but that’s no guarantee that a court won’t find an easier way to find in your favor, and leave the fair use question unexamined)

    To use an analogy, there is a tort of trespass, and there are various defenses to this tort. When you are invited onto land, there can be no trespass, since a necessary element of trespass is that it is unauthorized entry. Only where you are going against the wishes of the landowner might there be trespass, and only if there is trespass are defenses to trespass relevant. You don’t need an excuse when you’ve been invited. When you’re uninvited, that’s when you need an excuse.

    I think that this is a case where that will happen – not the least because of the damage that Grokster may do to the IP Industry.

    I certainly hope not. Grokster IMO poses no threat of damage to the industry. What it does pose is a threat of change. The VCR radically changed the movie industry. It improved it, creating the rental market and likely beneficial effects on TV as well. But if you feared change, then you were certainly against the Betamax.

    Right now, while we await the opinion, Grokster is legal. The industry is doing fine. We can see that the claims of damage are largely hyperbole. There’s no cause to shut Grokster down. Indeed, I think we could radically scale down copyright in term length and in scope, and see little to no harm to the industry, and great benefits to the public.

    I also think a consideration of the effect on the potential market for a work being uploaded onto grokster would deny fair use – either because it reduces the profitability or in the case of freely distributed works it increases the recognition and saleability of those works. –> This is not like a xerox machine.

    So what? Under Betamax, only a potential substantial noninfringing use is needed. That doesn’t require fair uses. Just noninfringing ones. If people can lawfully share Wilco songs via Grokster, then there’s one right there. There’s a ton of public domain works that potentially might be shared with Grokster. That’s got to be substantial.

    Changing the Betamax rule, though, that’s not a good plan.

    Yes there is a lot to fair use but it is a misnomer to consider any ‘public document’ (what ever that may be) as fair use.

    WTF is a public document? I don’t recall using the term. You mean like a law?

  • ACS

    To JS

    Regarding Wilco I have to return to the original point that there are no licences passed and therefore no authorisation.

    Although a licence may be communicated to the world the actual communication of the licence must take place.

    This is the importance of the original argument. Despite the fact an artist may himself put the copyright on Grokster the resulting copying is an infringement.

    Fair Use is raised and I argue that it cannot apply because of the commercial asset of goodwill and reputation (Do you have the tort of passing off) that is either contravened or created as a result of free publication. The commercial asset is a profit and one of the things that will prevent section 107 from being established.

    You state that:-

    remember without a licence or other legal right being passed the equitable doctrine of ‘Fair use’ cannot be raised

    You have that backwards. Only where no authorization or other statutory exception applies will a court resort to fair use. (Of course you could always raise it, but that’s no guarantee that a court won’t find an easier way to find in your favor, and leave the fair use question unexamined)

    I certainly agree with respect to direct infringement but I dont think that this applies with respect to contributory infringement because it could be raised in any contributory infringement proceedings from technology to bands singing in public bars or hotels to broadcasting. I dont think that the Supreme Court will apply equity to prevent liability because of a greater volume and concurrent likelyhood of copyright works travelling through the system. In fact the maxim ‘equity only helps those with clean hands’ will probably prevent equitable ‘Fair Use’ if another non-infringing use cannot be raised.

    Sorry – with respect to the last point I may have misled you by stating “right” instead of “non infringing use”. These two terms are not interchangeable.

    Look – I am not afraid of change – I use Grokster (Morpheus actually) all the time. But as a lawyer I know damage when I see it. Before Napster and Peer to Peer the RAI’s of the world were increasing thier volume of works. For the last 4 years this volume has decreased 6 percent on average. What is more, in hi tech countries like ireland (2nd largest software industry and highest broadband rate in the world) the RAI has recorded 11.6 percent drop in volume. This is not lost profit it is a reduction in the number of actual records sold.

    The alternative to seeking relief against grokster is going to be altering the architecture of the internet to invade our privacy. That is going to open up far more problems than shutting down Grokster.

    Remember not everything is as it appears.

    I would prefer to prevent a precedent of legalised invasion into my computer system than continue software that achieves what can be done with a web site.

    Of course how many of us are willing to put a reproduction of a copyright work on our personal website on the basis of ‘Fair Use’?

  • Josh Stratton

    ACS–
    Although a licence may be communicated to the world the actual communication of the licence must take place.

    If a copyright holder authorizes certain acts, and people engage in those acts without knowing of the authorization, have they infringed? The answer is no — their conduct, whether they knew it or not, was lawful. Individuals do not get to create actionable rights of authors based upon their own misinformed conceptions. Remember: authorizations can be gifts; they don’t have to be contractual.

    Fair Use is raised and I argue that it cannot apply because of the commercial asset of goodwill and reputation (Do you have the tort of passing off) that is either contravened or created as a result of free publication. The commercial asset is a profit and one of the things that will prevent section 107 from being established.

    Now that’s a novel argument. I don’t think it’ll work. There is a significant divide between copyright and trademark. Essentially you seem to be saying that due to trademark concerns, we might disallow something that otherwise would be legal if analyzed purely as a matter of copyright. Instead I would suggest that if someone is concerned with harm to goodwill, that they bring a trademark action, if possible. Copyright does not protect that. In fact, depending on what kind of fair use we’re talking about, neither does trademark. You can quote from a work (a typical fair use) to write a scathing review, and directly harm goodwill, for example.

    I certainly agree with respect to direct infringement but I dont think that this applies with respect to contributory infringement because it could be raised in any contributory infringement proceedings from technology to bands singing in public bars or hotels to broadcasting.

    Well, you can’t have secondary liability without direct liability. The fair use in Sony was as to direct infringers. Sony was not going out there and time shifting. In fact, I can’t think of any secondary infringers who claimed their own fair uses, at least off of the top of my head.

    I dont think that the Supreme Court will apply equity to prevent liability because of a greater volume and concurrent likelyhood of copyright works travelling through the system. In fact the maxim ‘equity only helps those with clean hands’ will probably prevent equitable ‘Fair Use’ if another non-infringing use cannot be raised.

    Meh. Grokster can do something easy like allege the potential of authorized works distributed by their network, or the potential of public domain works authorized by their network, etc. They don’t need an actual fair use under Sony, just a potential one. And the Sony doctrine isn’t really an equitable one like fair use, so much as it is a concern about expanding copyright into essentially a patent right over technologies (particularly those that aren’t completely mature, as anything with any potential substantial uses must be).

    How Grokster will come out is quite a mystery to me, however. How it should come out, though, IMO, is an upholding of the lower courts and of Sony in all its glory. Anything else is too harmful to technology.

    But as a lawyer I know damage when I see it.

    I’m also a lawyer, but I think that a mere reduction in the number of works created is not damage; at least, not important damage. What’s important is the overall public good. Not the health of artists for their own sake.

    I would prefer to prevent a precedent of legalised invasion into my computer system than continue software that achieves what can be done with a web site.

    P2P is easier to use than setting up a web site, IMO. In fact, if it weren’t easy, it wouldn’t be as popular.

    Personally, I believe in the third option: legalize (or at least make nonactionable) any otherwise infringing act by natural persons, if not essentially commercial in nature. This would have a significant affect on the industry, but I think that it would still be for the best in the long run.

  • ACS

    Hey Josh

    Dont know If you are still reading this.

    Remembering I am from a foriegn jurisdiction (where Kazaa is going way down) and we apply a different set of principles, logic and standards I think our little chat has been quite helpful in letting me understand the US position.

    In any event, I am sure you have read the US amici Curae brief for the plaintiff (applicant) in the MGM v Grokster case.

    I think the best arguments that I have seen against the Betamax decision is in there and it is something that I would have argued but didnt have the american legal knowledge to do so especially:-

    In Sony, the Court stated that a seller of a product
    that enables copyright infringement may be held liable if the
    product is not “capable of commercially significant noninfringing
    uses.” 464 U.S. at 442. The court of appeals held
    that, even accepting that 90% or more of the uses of respondents’
    file-sharing networks are infringing, the mere fact
    that the systems are “capable” of noninfringing transfers
    precluded liability under Sony, notwithstanding the relatively
    trivial proportion and commercial significance of such
    uses. Pet. App. 11a. The Ninth Circuit’s approach would
    eviscerate the “effective” protection against copyright infringement
    that Sony demands. 464 U.S. at 442.
    Although Sony did not give precise content to the term
    “commercially significant,” commercial significance should
    be evaluated in the context of the particular defendant’s
    business, as opposed to the technology in the abstract.
    While P2P technology unquestionably can be employed for a
    variety of legitimate purposes without giving rise to rampant
    copyright infringement, the record (read in the light
    most favorable to petitioners) suggests that respondents
    have built their particular P2P networks around the “draw”
    of massive copyright infringement. Respondents therefore
    cannot evade liability under Sony merely by pointing to
    other, legitimate, uses of the technology.

    Although this doesnt defeat the logic of Betamax so much as go around it they also argued:-

    B. The Court of Appeals’ Approach Would Render The
    Sony Standard Virtually Insurmountable
    The relationship between infringing and noninfringing
    uses in this case is essentially the opposite of the situation
    before the Court in Sony in light of the majority’s fair use
    holding. The record shows that respondents’ software is
    overwhelmingly used for the unlawful copying of copyrighted
    works. Petitioners apparently offered evidence that
    illegal trading of copyrighted works accounted for at least
    90%, and perhaps more, of the files distributed on respondents’
    networks. Pet. 9-10 & n.7; Pet. App. 4a. The Ninth
    Circuit nevertheless concluded that the residuum of noninfringing
    uses was sufficient as a matter of law to foreclose
    liability under Sony. See id. at 10a-12a.
    In so holding, the court of appeals fundamentally misconstrued
    Sony’s requirement that noninfringing uses be “commercially
    significant.” The court of appeals relied primarily
    on evidence that certain files—including public domain
    works and songs by artists who had authorized free distribution
    of their music—could be transferred over respondents’
    networks without infringing copyrights, and anecdotal evidence
    that such distribution had been significant to the
    commercial success of at least one band, Wilco. See Pet.
    App. 10a-11a. The court of appeals refused to consider
    whether the small fraction of file-transfers represented by
    such anecdotal evidence was “commercially significant” to
    respondents’ businesses. Indeed, the court of appeals specifically
    refused to consider the relative frequency of in12
    fringing and non-infringing uses of respondents’ networks as
    part of the “commercially significant” inquiry. See id. at 11a-
    12a n.9.
    Under the standard employed by the court of appeals,
    therefore, even relatively trivial noninfringing uses will
    suffice to defeat secondary liability under Sony. That
    standard renders Sony’s recognition of contributory liability
    virtually a dead letter; copy-facilitating products are almost
    always capable of copying public domain works, and thus
    would satisfy the Ninth Circuit’s test.

    Now as I recall you may have been guilty of taking the ‘fair use’ is a ‘non-infringing use’ and therefore they should be let off approach more than once:-

    While certainly the Court did note that some copyright holders wanted viewers to be able to time shift, it also relied upon fair use. If there were a license, there would be no such thing as time shifting as a fair use — it wouldn’t matter if it were fair or not, and there’d be no point in considering the question. Only if time shifting is unauthorized altogether for some particular work would fair use be an applicable defense.

    The US doesnt seem to think that is quite right:-

    Nonetheless, Sony’s directive to consider “substantial noninfringing
    uses, present or prospective” requires more than a
    showing that the product “could be used in noninfringing
    ways,” In re Aimster Copyright Litig., 334 F.3d 643, 650, 651
    (7th Cir. 2003) (Aimster). Instead, the question is whether
    the actual uses are, or are sufficiently likely to become,
    commercially significant.

    So on that basis we have to ask whether it is both ‘fair use’ or some other purposes and ‘commercially significant’ and ‘sufficiently likely to be used in that method’.

    This is a long way from mere potentiality.

    But I think one of the most important parts of our debate – the question of application of ‘fair use’ or another defence whether statutory or equitable where I said:-

    I also think a consideration of the effect on the potential market for a work being uploaded onto grokster would deny fair use – either because it reduces the profitability or in the case of freely distributed works it increases the recognition and saleability of those works. –> This is not like a xerox machine.

    To which you said:-

    So what? Under Betamax, only a potential substantial noninfringing use is needed. That doesn’t require fair uses. Just noninfringing ones. If people can lawfully share Wilco songs via Grokster, then there’s one right there. There’s a ton of public domain works that potentially might be shared with Grokster. That’s got to be substantial.

    The US considered this point when it said:-

    the Court’s careful consideration of whether time-shifting was a fair use
    indicates that the Court would have reacted quite differently
    to a product—such as a VTR with recording, but no
    playback, capacity—that while theoretically capable of
    noninfringing uses, appeared to be designed to facilitate
    infringement.

    I think alot of us have fallen into the trap of oversimplifying Betamax without wholly considering the justification that were used to formulate this easily satisfied standard. I note however, that Lessig did not fall into this trap and mainly went to the ‘active inducement’ arguments, much like the AIPLA on the other side.

    You are right, none of us really know what they will say in June but I dont think it will be a xerox of the Betamax decision.

    Alex