January 25, 2006  ·  Lessig

A district court in Nevada has rejected the claim that Google’s cache violates copyright law. The opinion is grounded both on “fair use” and implied license. The “fair use” part of the opinion is fantastic. But interestingly, the “implied license” part of the opinion weakens any such claim in the context of Google Book Search.

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

    Under that opinion, Google might go ahead and offer the complete text of all books to everyone, as long as they “transform” it by highlighting a couple of search terms.

    Then again, in the case in question, the webpage content was offered to anyone for free, in contrast to books. The court does rely on that fact in the fair use analysis. That does seem to weaken any claim based on this opinion in the Google Book Search case.

  • Montana

    Then again, in the case in question, the webpage content was offered to anyone for free, in contrast to books.

    Though not offered by the copyright owner, nearly all books are available for free through public libraries.

    I sometimes wonder about the legality of a digital library. Consider something to this effect: The “library” buys a number of copies of various works and puts them in storage. Patrons can visit the library website and digitally check out a book, locking it exclusively to that patron and not allowing anyone else to access that copy of the work until the patron checks it back in. This would seem to have exactly the same effect as a traditional library, but it would be more efficient, because now you can have the small number of copies of a rare or unpopular book at a central location where everyone has access instead of distributing those copies to arbitrary local libraries and denying access to anyone who doesn’t live near one with it in stock. Likewise, it means that people in remote areas can have access to a world class library without the expense or time requirements of a trip to the nearest big city. Yet it shouldn’t particularly impact rightsholders more than existing libraries do already.

    Can someone tell me which law that would violate, or is there some other reason why nobody has done it yet?

  • poptones

    Nobody has done it yet because it’s technically impossible, using our present computer systems, to ensure no patron is able to redistribute – in a flash, no less – a complete copy of that work.

    Digital libraries like you describe would be entirely possible if we had a meaningful drm system, but that won’t come until all out systems employ a means of making, at least some part of them, “trustworthy” (ie the copyright owner can trust that our system plays by their rules). And don’t look now, but that idea isn’t at all popular with the “commons-ists.”

  • Montana

    I considered that, but it begs two questions: First, how is that any different than a traditional library? Obviously it’s harder to copy a book than a text file, but given modern OCR software it’s entirely plausible that someone check out a dead tree format book and scan it into a computer. This is even more feasible for libraries that offer digital media: If someone gets a CD from a library then ripping it to MP3 is only marginally more difficult than playing it in a CD player.

    But the second question is, why would the library care? A library shouldn’t be in the business of facilitating copyright infringement, but it’s not their job to play the prosecutor and go out of their way to enforce it either. Especially when, at present, there is no reasonable means for them to do so. Brick and mortar libraries don’t have to make you use the work inside the library where the copyright guards can make sure you don’t make any unauthorized copies and libraries don’t presently have to ask the copyright holder permission to stock their books as far as I’m aware. So why should it be any different just because it’s electronic?

  • http://simplisticton.livejournal.com Simplisticton

    “So why should it be any different just because it�s electronic?”

    If I check out a paper book from a brick-and-mortar library and copy it, my copy is imperfect. It’s not bound, it doesn’t have the dust jacket, the colour photo of the author on the back, it’s on 8×11″ pieces of photocopy paper, etc. I can work around most of these deficiencies in my copy, but the actual effort expended to do so goes way up.

    With a digital book, I copy it. My copy is perfect in every regard and indistinguishable from the original. It takes no more effort than a couple of mouse clicks.

    This is the thing that frightens the publishers… not just copies, but perfect copies, of their works getting out there beyond their control. It’s precicely what Google Book Search does NOT provide, but that doesn’t matter to them.

  • http://openboardblog.wordpress.com JimMc

    Speaking of Google cache and fair use, I wonder what you think of Scroogle?

    Their “copy” of Google’s search engine is here.

  • http://openboardblog.wordpress.com JimMc

    Speaking of Google cache and fair use, I wonder what you think of Scroogle?

    Their “copy” of Google’s search engine is here.

  • nate

    From the judgement:
    “But when a user requests a Web page contained in the Google cache by clicking on a “Cached” link, it is the user, not Google, who creates and downloads a copy of the cached Web page. Google is passive in this process. Google’s computers respond automatically to the user’s request. Without the user’s request, the copy would not be created and sent to the user, and the alleged infringement at issue in this case would not occur. The automated, non-volitional conduct by Google in response to a user’s request does not constitute direct infringement under the Copyright Act. … Summary judgment of non-infringement in Google’s favor is thus appropriate.”

    I’m a bit confused by the logic here, and probably unfamiliar with some of the legal definitions. It is not ‘direct infringment’, therefore it is ‘non-infringement’? Is there no room between the two? I would have to presume that if ‘direct infringement’ means something other than ‘infringement’, then the logic here is faulty.

    Also, doesn’t this judgement contradict the decisions (which I have not read) regarding music copyright? It seems like an exact parallel with Napster: user makes available for distribution, but actual copy is made as a result of distant request, without which no copy would have been made. Why was this not a defense for those cases?

    –nate

  • three blind mice

    But when a user requests a Web page contained in the Google cache by clicking on a “Cached” link, it is the user, not Google, who creates and downloads a copy of the cached Web page. Google is passive in this process.

    fair enough, but the Cache is made by Google, stored by Google on its servers, and made available to the user to download.

    how can Google be considered as “passive in this process”?

    or is it users all the way down?

  • Josh Stratton

    poptones–
    Copyright law does not require that lenders operating under 109 take even the least step to prevent their patrons from being able to make copies of works. A library may, for example, lend a CD, which is digital, and from which I may make identical copies.

    The reason that libraries don’t lend works via the Internet et al is because they would be making a new copy in the process. And while there is a broad exception for distribution under 109, there is not a similar exception for reproduction. The best libraries get is 108, and it’s honestly not all that good.

    As for DRM, I remain absolutely against it, and in fact favor reforming the law to attack the concept. OTOH, I do favor an exception for natural persons to engage in otherwise infringing behavior if done noncommercially. While this wouldn’t apply in the context of libraries lending through telecommunications, I think it would appease the same desire in the end.

    You’ve been around long enough that you should know the actual reasons for the lack of Internet lending. I’m disappointed that you instead used the question to jump into DRM advocacy.

    Nate–
    There are two kinds of infringement: direct and indirect. Direct infringement is where a defendant himself infringes, e.g. by making a copy of a work unlawfully. Indirect infringement is where a second defendant somehow assists the first defendant, e.g. by providing the facilities for the direct infringement (in certain ways).

    Basically D2 is being held responsible for D1, due to the connection between the two. The nature of the connection is of critical importance. For example, if I let anyone make xeroxes on my xerox machine, and it’s left unattended, then that’s not enough of a connection to support an indirect infringement claim. OTOH, if people give me their documents, and I do the xeroxing myself, at their request, that could be sufficient. This is because, under one indirect infringement theory (contributory infringement) what I know at the time of the infringement is relevant. In another situation, if the direct infringers are my employees, and they’re making these xeroxes for work, then my knowledge might not matter if I am pursued under a different theory (vicarious infringement).

    One important thing to remember is that you cannot have indirect infringement without an underlying direct infringement.

    As for comparing this with Napster, the cases are distinguishable. In this case, arguably, the users are engaged in direct infringements, just as Napster’s users were engaged in direct infringements. Napster, however, had greater knowledge than Google appears to here (as they continued to contribute even once they knew of infringements) and apparently a closer relationship with their users (having the right and ability to ban them from Napster, which it did not exercise).

    (Take that with a bit of a grain of salt, though. I haven’t had a chance to read the Google decision yet, so I’ve just been stating generally how things work, and assuming that Google was probably distinguishable on certain points since it’d be hard to reach the outcome where they won if it wasn’t so)

    Three Blind Mice–
    how can Google be considered as “passive in this process”?

    Lack of human intervention. In the 90′s there was a case in which someone put up infringing materials on their web site, and they and the ISP were sued. This was before the 512 safe harbor. The ISP got off the hook because they didn’t control or even look at what the user put in his account, and got paid a flat fee. Basically their servers were owned by them, but left unattended in the control of their user (to the extent that it mattered). I don’t recall the cite, but it had something to do with a national fire department association, and I think it was in Florida. I imagine someone can find it given that.

  • poptones

    With a digital book, I copy it. My copy is perfect in every regard and indistinguishable from the original. It takes no more effort than a couple of mouse clicks.

    No, it is “perfect” only in the context of being a “perfect copy” of the original digital file that was “checked out” of this imaginary library. But that “perfect copy” still retaines every trait you pointed out in your own example it still does not have a cover, or a picture of the author on the back, or a spine – it can’t be read on the crapper and piled with the other magazines for perusal on the next visit. It is still not a “thing” in and of itself – it’s just bits of data that must be stored and accessed via another appliance.

    This is the thing that frightens the publishers… not just copies, but perfect copies, of their works getting out there beyond their control.

    Exactly.. beyond their control. This is the point I made and the one which Josh, you failed completely to address in your legalese mumbo-jumbo attempt at sounding high minded. Secion 109 blah blah blah blah – the fact is publishers would be allowing electronic copies of their works if they had a proper means of policing them – of ensuring that “borrowers” remained just that. This is not a strawman hyperbolae – publishers know as well as those who call ourtselves “elite” the benefits of electronic distribution of their works, but they don’t see a business model that will support them acting as intermediary. And there probably isn’t one – publishing is now basically just advertising, and in that sense they are demanding payment from the wrong people.

    You’ve been around long enough that you should know the actual reasons for the lack of Internet lending. I’m disappointed that you instead used the question to jump into DRM advocacy.

    Without DRM the very act of “lending” in this realm is utterly impossible. My reasons, and my desire for this realm to move into one where DRM is commonplace, is for that very reason. Without DRM there are no common rules for us to abide that allows any of us more than mere commoner status. In order for us to gain in this realm we are still slaves to the banks and the googles and the yahoos.

    Your attitude on this can be compared to that of a box of crabs – dragging one another back down the instant one tries to escape this prison. There is nothing at all wrong with giving stuff away – everything I have written or created I have doen exactly that. But saying it is better to live in a society where we have no other choice than living in one where each of us is free to choose to engage in individual acts of commerce when it suits us is to choose tyranny. You talk of “free culture” but in this context your free culture is only “free as in beer” – for without the opportunity to make that choice between “give” and “sell” there is no freedom but only the tyranny of technology.

  • Josh Stratton

    poptones–
    Exactly.. beyond their control. This is the point I made and the one which Josh, you failed completely to address in your legalese mumbo-jumbo attempt at sounding high minded. Secion 109 blah blah blah blah – the fact is publishers would be allowing electronic copies of their works if they had a proper means of policing them – of ensuring that “borrowers” remained just that.

    Right now copies lent out from a library under 109 are beyond the control of copyright holders. So are copies that they sell. So what?

    If some authors won’t publish their works because libraries might buy copies and lend them out, then so be it. We have to consider what’s in the best interests of the public. And while having more works created and published is in the public interest, having those works be unencumbered by copyright (both in that terms should be short, and copyright should be narrow in scope) are equally in the public interest. Given the large number of authors that seem to be okay with works being lent, and the likely small number of new works we’d get if we stopped having libraries, I’ll take the libraries. The libraries are more valuable than the additional works are.

    So too is it with Internet lending. Given the inescapable deep flaws of all DRM — its inflexibility, its permanence, its extraordinary potential for abuse by authors — I don’t think that any benefit that we could get if DRM exists is actually worth it. When there is DRM, the public loses more than they gain.

    For example, in the case of Internet lending, you suggest that DRM could be used to ensure that people merely borrowed a work, and nothing more. Of course, that’s precisely the sort of stupid thing that you get from DRM. When I borrow a copyrighted work from the library now, I can engage in fair use, I can use it for educational purposes under 110, I can lend the work out to others (so long as I still return it, etc.) and so on. Your suggestion is to sharply limit what I can do. The convenience is not worth it; not worth it by far. Especially since copyright holders still have a panoply of legal rights against me in the hardcopy lending scenario, which they may exercise if I do something illegal. Those rights are equally as available if we were to have statutory Internet lending. Those rights are sufficient. Copyright holders do not need more. Hell, they could probably have far less, and they’d still publish just as much as they do now.

    All we have to do, if we want Internet lending, is to tweak the law to allow it. DRM is not necessary, and in fact would be actively harmful as it would drain so much of the value of borrowing a work that it could not even rightfully be considered on par with library lending now.

    Your attitude on this can be compared to that of a box of crabs

    I have no idea what you’re trying to say with most of your paragraph there. Want to try again?

    You talk of “free culture” but in this context your free culture is only “free as in beer” – for without the opportunity to make that choice between “give” and “sell” there is no freedom but only the tyranny of technology.

    Actually I don’t recall ever using those words. Maybe you’re confusing me with Prof. Lessig, in which case I’ll take that as a compliment.

    In any event, you’re wrong about me. I think that copyright should consist of a set of basic rules which serve the public interest to the greatest degree that they may be served. That this may not optimally serve authors is of no consequence; authors only should benefit from copyright in their capacity as ordinary members of the public (e.g. authors can use public domain works just like everyone else) or where giving them a small boon is just a step in exploiting them for something of greater value (such as granting the smallest copyright that yield the greatest creation of works). While there are of course situations in which a small group might need to deviate from these broadly applicable rules (e.g. licensing a book to a movie studio so that a movie can be made from it), allowances for that should be crafted so as to limit opportunities for abuse (e.g. EULAs should be unlawful almost all of the time; selling a copy of a program just as one sells a copy of a book, and having exceptions that allow for their different natures, is a better way to go. Consider sections 109, 117, etc.).

    Naturally authors who comply with the system should have the choice to give away copies of their works or sell them or when it isn’t harmful to the public to license them. And they should have the ability to protect their rights through the courts. But permitting DRM is like allowing people to carry a shotgun to guard against emotional distress torts. I’d rather have a one size fits most law and I do not like the idea of permitting significant deviation from that.

    If authors don’t like it, they can either put up with it or change professions. Even if we lose them, I think it would be worthwhile given the big picture. But then, that’s because I care about the public, not authors specifically.

  • poptones

    But permitting DRM is like allowing people to carry a shotgun to guard against emotional distress torts.

    Absurd.

    V unir rirel evtug gb fcrnx naq gb choyvfu va nal tvoorevfu bs zl pubbfvat.

    There. Did I just violate your rights? I claim copyright on the above text in spite of it being ROT13 encoded. Have I violated your rights now? Would I be in violation of your rights if I had chosen something more robust like AES256?

    По мере того как я выбираю я работаете

    There.. have I violated your rights now? Do you speak russian? Or would you argue babelfish is the only thing now defending your “rights?”

    I, as a creator of a work, have every right to choose the method of publication and of expression. DRM does not violate your rights because it is your choice to assent to my terms – if I choose to produce only encrypted works and you choose to pay me for them whose rights have been violated?

    And don’t even try that nonsense about public domain 100 years from now. In this realm of bits and “temporal flux” what is even going to last 100 years? Anything from this domain that lasts 100 years will have been transcribed and repeated and resold and licensed so many times as to become essentially ubiquitous. Publishing is not what it used to be and we cannot just say that’s a tough thing for publishers. It also means it just might be a tough thing for us as well. We are all going to have to accept some new paradigms.

    When I borrow a copyrighted work from the library now, I can engage in fair use, I can use it for educational purposes under 110, I can lend the work out to others (so long as I still return it, etc.) and so on. Your suggestion is to sharply limit what I can do.

    I can also refuse to publish it at all and you never have access to the information – period. Or I can publish it in paper form and share it only with licensees who agree to protect it as a trade secret – they still get the knowledge, I still collect profit from my work, but you never get access to it. How is that different than DRM? I’s not – it’s rights management and we have had it pretty much as long as we have had copyright and patents and trade secrets and contracts to protect them.

    Just as authors do not have any guarantee or “right” of assured profit from a work, we do not have a “right” to access of every bit of information ever created. Do I think we should strive for that access? Abso-fucking-lutely. But it is not our “right.” And access to information that is of value to society, even when it may mean violating contracts or copyrights or whatever, is eventually assured. Just look at the recent corporate shakedowns for proof – “we, the people” have the right, in cases where it suits the public good, to demand people and companies make private data public. Even in extreme cases where it might make “trade secrets” or even government secrets public, if we deem it important enough we make exceptions and demand release of the infomation.

    If you have an ebook, and a friend wants to read it, there is no need for you to “loan it” – that is a complete red herring that ignores pretty much the entire context of the argument being made. An ebook – or any electronic publication – requires the hardware along with it. If someone wants to “borrow” your ebook then you need only hand your hardware to them – now they have access to the information and you don’t. But there is no need for someone to “borrow” an ebook file because that alone does them no good. And if they have the hardware to read that file then they can “check it out” from the exact same place you checked it out. If that means they have to wait in line until your copy has “expired” then it is still no different than any other lending library – except that we, the people, still all enjoy the greater access that comes from having libraries that can be accessed in an instant from our own homes.

    We have everything to gain and little to lose from DRM. As creative individuals, as private individuals, as individuals who communicate we have much to gain from a world of instant and secure and trustworthy data sharing. what we have now is data anarchy. It’s not evne data anarchy… it’s data authoritarianism.

    The convenience is not worth it; not worth it by far.

    Don’t want data that expires? Don’t buy it. Don’t allow your friends to send you private communications. Remain a slave to paypal and visa and yahoo… the choice is yours.

    Especially since copyright holders still have a panoply of legal rights against me in the hardcopy lending scenario

    I’m a “copyright holder.” My 18 year old high school friend who draws anime and writes fiction is a “copyright holder.” If you infringe my rights or hers what recourse do we have? Hire a lawyer? Society does not benefit from creating a world where everyone is a publisher but the only “rights” we have are those we can afford to enforce. Bringing suit against the RIAA or against Paramount or against Warner is a reasonable task – bringing suit against a thousand anonymous users who are sharing your work against your wishes is not. This is not just a problem facing Warner and Sony – it is a problem for every teenager practicing guitar in her parent’s basement and posting demos of her band on myspace, every wannabe photographer or graphic artist posting deviantart, every wannabe producer publishing machinima or AMVs or flash animations on the sites that cater to those communities. We all want to be able to earn a living doing what we love. Without the means for us “little guys” to engage in relatively trustworthy commerce as individuals we are still slaves to the old school publishers and the credit banks.

    You want to see an end to the old school publishing gatekeepers? DRM is the bullet for that gun. But it won’t be if we do not participate in setting the rules. Refusing to eccept the reality that DRM is coming only assures the inevitability of your prophecy – that you will be a “victim” of the future rather than a participant in it.

    And that’s it, isn’t it? Because it’s easier to refuse to achieve and to claim to be a “victim” than to rise to the challenge. Too bad its our children who will pay for that fear and laziness.

  • Josh Stratton

    poptones–
    I, as a creator of a work, have every right to choose the method of publication and of expression.

    I absolutely agree. But I don’t think that you ought to get a copyright unless your work and the method of its publication fall within certain boundaries set to serve the public interest.

    Thus, under my ideal law, if you publish in plaintext, you get a copyright and can enforce it in court. If you publish with DRM, you get no copyright and no right to pursue circumvention, reproduction, etc. In fact, if feasible, you’d get a department of the Copyright Office with the mandate of encouraging and coordinating attacks on DRM, and of encouraging the dissemination of anti-DRM tools and unencrypted versions of your work, which, by virtue of being DRM’ed, would be in the public domain. The Library of Congress already has a number of public domain works on their website — it’d be nice to have yours added to that, if you chose to go the DRM route, rather than the copyright route.

    There.. have I violated your rights now? Do you speak russian?

    Are you suggesting that Russian is a TPM?

    I choose to produce only encrypted works and you choose to pay me for them whose rights have been violated?

    Why must you persist in ascribing positions to me which I do not hold? I never said that I was against DRM because it ‘violates my rights.’ The notion is silly anyway. I’m against DRM because I think that copyright is a quid pro quo, and if you want the quid of copyright, the quo of a DRM’ed work is not good enough. This is not a private arrangement we’re talking about, where people should be free to make one-sided deals. This is a trade with the public at large, and there is nothing whatsoever good about having everyone get taken for a ride.

    And don’t even try that nonsense about public domain 100 years from now.

    Nonsense is never a good word to use in conjunction with the public domain. I take the public domain very seriously, as did the framers, because without works meaningfully entering the public domain, copyright is never appropriate. I would not tolerate DRMed works being copyrighted regardless of the length of the term. Although speaking of term length, that’s bad too. Again, if Congress did things right, terms would probably be only a few years long. Maybe 5 to 25 years. And the scope of copyright would be reduced too. And formalities would become of more importance. (And n.b. that formalities are a good way of ensuring that works do enter the public domain, and do so in a meaningful way)

    And authors would, in the main, not change professions. They would still make works, they would take the reduced protection offered to them, and comply with the greater formalities. The public would benefit greatly from the reduced copyright protections, and suffer but the slightest harm from a few authors or a few works dropping out. I’m convinced of this.

    Copyright is basically like going to a diner and paying a few dollars for a sandwich. That’s a fine trade. What’s not acceptable is overtipping the waitress with a suitcase full of hundred dollar bills. It is wasteful of public resources, it is wholly unnecessary, and I will not stand for it. I don’t care whether the waitress likes it. I don’t even care if some waitresses have lifestyles that they enjoy so much that they would quit if they didn’t get overtipped anymore. We need to return to sanity, and part of that includes discouraging DRM all we can. The current situation clearly shows that appeasing copyright interests by giving them more and more protection isn’t stopping them from rolling out DRM and further taking advantage of the public. Thus, I say we actively fight them so that we return to the natural and proper situation of frugality with the currency of copyright.

    Publishing is not what it used to be and we cannot just say that’s a tough thing for publishers. It also means it just might be a tough thing for us as well.

    I disagree. Publishing is exactly what it always is. Marginal cost is going down, but that’s been true since people were carving big hunks of rock. No pirate will ever have a lower marginal cost than a publisher. The technologies that lower costs are equally open to both.

    We are all going to have to accept some new paradigms.

    I won’t be a copyright quisling. Copyright is a utilitarian system designed to serve the public good. Deviations from that are intolerable. I’m willing to accept that no one is perfect, and it will take time to home in on the ever-changing point at which copyright achieves its full potential and serves the public to the greatest possible extent. But at least there must be the good faith effort to get there, and continual progress along the path.

    I can also refuse to publish it at all and you never have access to the information – period.

    And that doesn’t frighten me. I know perfectly well that a public expenditure in the form of copyright will attract a roughly proportonate number of authors. But there is a very real matter of diminishing returns; eventually you’re better off not expanding copyright, even though an author does not publish and we never get his works.

    It’s acceptable. If the choice was between your works being published and libraries, you can suck eggs. I will side with the libraries because they are more valuable to me than you are.

    There always comes a point when increasing copyright harms the public. Frankly, I think that point comes quite early, given that copyright is economic and most economic benefit comes to an author immediately, if there is any benefit at all.

    So, if we had my copyright system, and you could publish a book and get $95 in profits over the course of the copyright, or we had the current system, and you could get $100 in profits over the course of the copyright, would that $5 really stop you from publishing under my system. I doubt it. And I am happy to take the chance, since the benefit to me is worth many many times a mere $5. And if you’re too obstinate, I’m willing to take the chance that there are still many authors who are not.

    Or I can publish it in paper form and share it only with licensees who agree to protect it as a trade secret – they still get the knowledge, I still collect profit from my work, but you never get access to it. How is that different than DRM?

    Scope, mainly. If we bar large scale adhesive use licensing (which I advocate, though details need to be worked out), you’ll never be able to get as much money as you would if you simply went the copyright route. The transactional costs are higher if you have to negotiate with everyone, and I think it’s worthwhile to make you do so in order to keep you honest. EULAs are too prone to abuse, and need to be eliminated from the creative works world at least — possibly altogether.

    We have everything to gain and little to lose from DRM.

    Wait, is today opposite day? Or do you really believe your own nonsense?

    I’m a “copyright holder.” My 18 year old high school friend who draws anime and writes fiction is a “copyright holder.” If you infringe my rights or hers what recourse do we have? Hire a lawyer? Society does not benefit from creating a world where everyone is a publisher but the only “rights” we have are those we can afford to enforce.

    And I’m also arguably a copyright holder. (Although I routinely place all my work in the public domain. If I wasn’t incentivized to create a work due to copyright, I shouldn’t have a copyright. It is wasteful.) So what?

    And yes, hire a lawyer. I have no problem whatsoever with people enforcing their rights in court, since courts are actually competent where DRM is incompetent. Since costs and fees are recoverable if you win, it should be no problem for you.

    Bringing suit against the RIAA or against Paramount or against Warner is a reasonable task – bringing suit against a thousand anonymous users who are sharing your work against your wishes is not.

    Which begs the question of whether it should even be illegal for a thousand anonymous users to share your work. As I’ve said before, I advocate a broad exception for noncommercial activity by natural persons. So Alice and Bob copying your work on the Internet would be lawful. Carolco copying your work to sell copies, or show in theaters, or to use in their own work, would not be.

    I recognize that more than any other proposal for copyright reform I have suggested that this could significantly lower authorial incentives. But given that we’re living in this world de facto right now, I figure it won’t seriously hurt to live in it de jure. Already people often pay money for works when they don’t have to, and transactions of that nature would still be reserved to copyright holders. I think little would really change, and it’s not as though copyright holders have many viable alternatives if we take some other steps as discussed above. That just leaves them with quitting or sucking it up. I think they’ll suck it up and that we can live without the few that quit.

    every wannabe producer publishing … AMVs

    What? Those guys have serious, serious 103(a) problems. Not only are they crazy liable to the songwriters, performing artists, and animation studios, but I doubt that they have any rights of their own. You have a lot of chutzpah, and little knowledge of actual, factual copyright law, if you’re going to call them artists that need the protections of the modern laws.

    You want to see an end to the old school publishing gatekeepers? DRM is the bullet for that gun.

    Hah! DRM is how they will maintain their gatekeeping position. Independent creators will not be able to traverse the DRM systems they’re erecting in order to compete with them. They will be deprived of the tools they need to create and publish because those are the same tools that can be used to pirate. Independents will be suffocated with DRM.

    In fact, you would have to be blind to not see this. If the big publishers could possibly be threatened by DRM, why the hell would they be the ones pushing laws that protect its use? Why would they be rolling it out, and forcing other industries to respect it?

    They are not stupid enough to sign their own death warrant. And they aren’t.

    Too bad its our children who will pay for that fear and laziness.

    DRM never ever goes away. It is the long-lived nuclear waste of the copyright world, polluting things long after its day should be done. So how dare you say that a lack of it will harm our children? It is the presence of it, and of copyright terms that burden later generations, that harm them. One of my reasons for wanting to massively reduce copyright in length and scope is to be able to give the sum of our creative works to our children, for them to enjoy freely. I will not support having them shoulder our debts.

  • poptones

    …I don’t think that you ought to get a copyright unless your work and the method of its publication fall within certain boundaries set to serve the public interest.

    And who gets to judge? the MPAA? George Bush? Jerry Falwell? The chairman of the board of Sony?

    You are arguing that a new form of tyranny is better than the old form of tyranny. You are saying people should have no protection under the law unless they publish when and how you see fit? Yeah, that’s really going to incent new works…

    Why must you persist in ascribing positions to me which I do not hold? I never said that I was against DRM because it ‘violates my rights.’

    Bullshit. Your entire position is based upon the fallacious notion that you have some “right” to access all works when and how you see fit. Sorry, we don’t fly that route.

    Ukraine did put this right in their constitution, but so far it doesn’t seem to mean much to the wife of a reporter who turned up face down in the street with a bullet in his head, after months of publishing articles the government didn’t like.

    I’m against DRM because I think that copyright is a quid pro quo, and if you want the quid of copyright, the quo of a DRM’ed work is not good enough.

    ah, so if I intercept your bank account number or the mushy love letters you sent to your girlfriend then I should have the unconditional right to publish them simply because – by your own argument – they were encrypted?

    Yeah, that makes perfect sense.

    Copyright doesn’t just protect Sony and madonna.

    So, if we had my copyright system, and you could publish a book and get $95 in profits over the course of the copyright, or we had the current system, and you could get $100 in profits over the course of the copyright, would that $5 really stop you from publishing under my system. I doubt it. And I am happy to take the chance,

    Good for you. Why don’t you provide a link to your book so that I might read it?

    I, however, do not choose to put my life under the control of your “gut instincts.” Do you have any factual or concrete argument to make? No, you don’t… it’s just conjecture. You’re trying to sell what you want because it will allow you to continue fostering a parasitic and dysfunctional culture without accepting responsibility.

    DRM is how they will maintain their gatekeeping position. Independent creators will not be able to traverse the DRM systems they’re erecting in order to compete with them.

    This is, by far, the stupidest part of your argument. Ever heard of linux? Ogg vorbis? Wikipedia? people will create alternatives because we want to, because we are driven by ideals. But refusing to come to the table NOW only means more balkanization – “our” drm won’t work with “their” DRM which means the wall between the two worlds gets higher.

    Refusing to participate in this isn’t going to stop it. If you want a new computer in 2016, you’re either going to have to move to china (oh wait, they’ll be REQUIRING these systems running the special chinese operating system that snoops on everything you do) or run a five year old computer and hope it never beraks.

    They will be deprived of the tools they need to create and publish because those are the same tools that can be used to pirate. Independents will be suffocated with DRM.

    Independants will be soffucated because, when they had the chance, they held their breath like spoiled children throwing a fit rather than working to secure their rights in the new system of commerce.

  • Josh Stratton

    poptones–
    And who gets to judge? the MPAA? George Bush? Jerry Falwell? The chairman of the board of Sony?

    The people of the United States, via Congress, by setting out the boundaries in the Copyright Act.

    For example, under the 1909 Act, failure to comply with certain formalities resulted in your work entering the public domain. The feeling was that copyright was fine — so long as the author served the public interest in the appropriate way by not merely publishing, but including notice, depositing copies, etc. If he could not be bothered to do so, he would simply lack protection.

    I think this is a good idea, and so likewise, I would suggest that the law be reformed so that if an author wants a copyright, among other things, he cannot use or authorize the use of DRM on his work.

    Do I think authors will still be incentivized? Yes. Because we have a very long history of authors creating all manner of works and complying with the system. I think that if the 1976 Act had never come about, and we were still under the 1909 Act, we would have exactly the same corpus of creative works as we do with the 1976 Act. In fact, I think we’d have more if the 1976 Act had never happened. And more still if we had a law that was even better than the 1909 Act. Copyright is an incentive for creating works, but it is far from the only one, and it isn’t even the only important one. Sometimes it’s not even the most important one. We have so many incentives that a reduction of one of them is not going to have a significant impact.

    Your entire position is based upon the fallacious notion that you have some “right” to access all works when and how you see fit.

    No, my position is based on a utilitarian view of copyright. My position vis-a-vis DRM is that its harms outweigh its benefits and it should therefore be marginalized to the greatest extent possible.

    I do not support the idea of a right to access all works. But I do not support the erection of artificial barriers around published works. And I do not support protection for finished unpublished works.

    Under my proposed system, you’re free to use DRM as much as you want. But everyone else is free to attack it and to share the underlying work if they can get at it. I have faith that they can.

    ah, so if I intercept your bank account number or the mushy love letters you sent to your girlfriend then I should have the unconditional right to publish them simply because – by your own argument – they were encrypted?

    My bank account number is not copyrightable even today. Copyright law does not stop you from publishing it. Privacy law — which is utterly unrelated — might have something to say, however.

    As for the love letters, again, yes — if they were encrypted, I should not have a copyright on them. In fact, if I was not incentivized to create them due to copyright, I should not have a copyright on them, and whether I was or not can be determined roughly by use of formalities. If I don’t apply for a copyright, or publish the letters, or deposit copies, then I guess my motive in writing them was not copyright. Maybe it was love.

    If an author will work without the reward of a copyright, I am inclined to let him. Just like how I would let you wash my car for free, if you wanted to. Why should I, a frugal person, pay for free things? Why should the equally frugal public pay for free works? Let’s reserve payment in the form of a copyright for the works that need it, as evidenced by the author making a modest gesture to get it.

    people will create alternatives because we want to, because we are driven by ideals.

    And how many open source, legal, DVD players have you seen lately? If people stop making monitors that do not use DRM between the video card and the display, how successful will alternatives be that don’t use that system. A system encumbered by patents and trade secrets and which cannot be accessed without money?

    Can I, an ordinary consumer, write and perform a song of my own choosing, record it to DAT with consumer equipment, and make multigenerational copies on DAT? No. I have every legal right to. No copyright is involved but my own. But because of the threat the big names perceived, they keep me from acting lawfully.

    Independants will be soffucated because, when they had the chance, they held their breath like spoiled children throwing a fit rather than working to secure their rights in the new system of commerce.

    And yet, I propose that no one is suffocated at all. You are happy to kill small authors to protect big authors and people who knuckle under to big authors.

    I want all the authors I can get — I’m just not going knuckle under and I’m not going to give them one iota of protection more than I need to.

    You’re wasteful and you’re dangerous to artists and the public at large. I’m very happy to be opposed to you. It keeps me from being in bad company.

  • poptones

    who gets to decide?

    The people of the United States, via Congress, by setting out the boundaries in the Copyright Act.

    Hilarious. I’m sure all those dead people will be more than happy to voice their opinions. But how to hear them? So I guess your plan is to pay priests and mediums to channel the blessings of these dead people upon new works?

    We had a system where works had to be registered. Problem then was it didn’t protect everyone – it left loopholes whereby things could be published without permission simply because the creator of the work lacked the resources to petition the government for its “blessing.” It was a bad idea then and it’s 300 Million times worse in this era of internet communications.

    I would suggest that the law be reformed so that if an author wants a copyright, among other things, he cannot use or authorize the use of DRM on his work.

    More authoritarianism. more tyranny, more government regulation. You keep saying ytour system is simpler and protects everyone but you keep talking about stacking law upon law, exception upon exception – it doesn’t protect anyone except those who want free madonna cds.

    Good thing your “plan for the future” is so hideously complex – not to mention unconstitutional – as to be irrelevant.

    I want all the authors I can get — I’m just not going knuckle under and I’m not going to give them one iota of protection more than I need to.

    Guess what? You can bitch and moan all you like and it’s not going to make any difference to them. They don’t need your approval to do what they are doing. DRM is on it’s way and there’s nothing you can do to stop it – nor should there be. It’s technology and it is up to us to decide how to use it.

    Keep those fingers shoved in those ears, dorothy; you can sing “ding dong” with all the merry little munchkins in munchkinland until the day you drop, and the old school publishing cartels will be dancing on your grave.

    Better to be in bad company than in the company of fools.

  • John S.

    Mice: I think you pinpointed the hole in the facts/logic in this opinion:

    “fair enough, but the Cache is made by Google, stored by Google on its servers, and made available to the user to download.
    how can Google be considered as “passive in this process”?
    or is it users all the way down?”

    The opinion addresses this. The court states: “Field does not allege that Google committed infringement when its “Googlebot,” like an ordinary Internet user, made the initial copies of the Web pages containing his copyrighted works and stores those copies in the Google cache.”

    Whoa! So it looks like Fields alleges infringement only for the “non-volitional” copying that occurs when a user clicks on the “cached” link, and does not allege infringement for the original “volitional” copy made by google when it crawled the site.

    Anyone have any idea why he may have done this? And what would have happened if he alleged both?

  • http://www.commonsmusic.com Commons Music

    I’m gonna jump into the fray here for a moment.

    While I have a bit of a history of disagreeing with poptones, I’m going to ignore him here and mention something you said, Josh:

    “For example, under the 1909 Act, failure to comply with certain formalities resulted in your work entering the public domain. The feeling was that copyright was fine � so long as the author served the public interest in the appropriate way by not merely publishing, but including notice, depositing copies, etc. If he could not be bothered to do so, he would simply lack protection.”

    I, for one, like that I don’t have to register and mark every damn thing I make in order to be ascribed copyright. For instance, I have a bunch of albums on the Archive, available for free. As a total, I’ve made about $5 from donations from them. That’s fine, I didn’t release them there to make money.

    However, if I had to register all those to be protected (and, therefore, to attach the CC licenses that are on all of them), I’d be out about $100+ (since each new work is about $30 to register). Paperwork, paperwork, paperwork.

    My website would have to be sent in on a rolling basis to maintain copyright there.

    I’ve written articles under pen names for a few publications, and each time I wrote one ($30, $30, $30…), I’d have had to send it in to the registry before it was published so the magazine doesn’t screw me over my due paycheck.

    This is all, essentially, a real hassle. Sure, there are some things you definitely want to register, usually major works like a novel, manuscript, or film, but having to do it for everything? That’s just insane.

    Consider that I possess a wealth of information on copyright, how it works, how to register, etc. What about the people who don’t? Registration is an undue burden I don’t want to have to place on all the creators out there, myself included. Those $30 checks add up after awhile.

    Now, do I think the copyright term should have been extended nearly this long? Hell no. Do I like DRM? Double no. But I prefer the guiding hand of public debate, rather than the hammer of government law revision (which is why the DMCA should be repealed, in my estimation).

    Just my two cents.

  • Josh Stratton

    Poptones–
    Hilarious. I’m sure all those dead people will be more than happy to voice their opinions.

    Huh. I’m not talking about the framers, you know. Just looking around it appears as though I, and many other Americans are perfectly healthy. What’s with you and your non sequiturs?

    You keep saying ytour system is simpler and protects everyone but you keep talking about stacking law upon law, exception upon exception

    Have you seen what we have now? It’s hideously complicated.

    Poptones and Common–
    We had a system where works had to be registered. Problem then was it didn’t protect everyone

    Sure, there are some things you definitely want to register, usually major works like a novel, manuscript, or film, but having to do it for everything? That’s just insane.

    Precisely the point.

    Not everything should be copyrighted. In fact, nothing should be copyrighted unless it needs to be. It is wasteful to grant copyrights to works where the author did not need the incentive. An author who needs it will be likely to seek it out. An author that doesn’t care won’t bother. So setting a small bar to getting a copyright is an excellent way of distinguishing the one kind of author from the other. Given that no one has a problem expecting everyone in the country to file their taxes, and that a copyright form is not significantly harder to complete than a change of address, it’s not a challenge.

    Given that copyright is an economic incentive, it makes sense to make part of the bar monetary. If the copyright holder is unwilling to make a miniscule investment (presently $30 — compare to the hundreds of dollars for a trademark, and the thousands you usually need for a patent) then this is a good indication that the economic rewards that a copyright would give them were not part of their reason for creating the work. If that’s the case, then again, the copyright probably wasn’t their incentive and should not be granted.

    These posts should not be copyrighted. Mine aren’t, but why not yours? Most personal web pages, or doodles, or personal letters, or business memos also shouldn’t be copyrighted. They don’t need to be, and it harms the public to give away copyrights needlessly.

    I don’t mind copyrights being easy to get, but I do think that we shouldn’t hand them out as though they were going out of style. When an author needs one, he can get one. And if he really can’t manage to write down his address and send in a $30 check, then he really needs to moonlight as a waiter for a couple of days and find someone to fill out the form for him.

    This whole automatic copyright idea is just the pits. It’s tremendously wasteful, spending the public’s rights needlessly.

  • poptones

    Not everything should be copyrighted. In fact, nothing should be copyrighted unless it needs to be.

    and according to you, under this grand new system the government gets to pick and choose what “needs to be.” Yeah, that’s really going to work great.. because the government does such a great job with everything else. Just look how they’re protecting our rights right now. Under your plan there would be no ciriticism of the government because the government damn sure wouldn’t be saying “dissent and critical speech works for the common good.” You think FOX news is bad now? Wait until NBC and ABC and CBS find out they can’t copyright their news programs unless they fill them to the brim with propoganda.

    The system you are espousing is a prime gateway to tyranny – which isn’t surpiring since pretty much every socialist system inevitably leads that direction. The best thing can say for your ideas is it creates a topography where we avoid the slippery slopes and instead just cut right to the chase.

    It is wasteful to grant copyrights to works where the author did not need the incentive. An author who needs it will be likely to seek it out. An author that doesn’t care won’t bother

    An author that doesn’t bother doesn’t cost anyone anything. And an artist that does bother still doesn’t cost anyone anything excep tthe person who infringes upon his rights. YOUR system would cost us all dearly – it would cost us our very liberty.

    I’m done with you. Three replies to this nonsense you are espousing is enough. Come back when you have something reasonable to argue.

  • three blind mice

    poptones. extra style points for using cyrillic characters, but stay on topic dude. this has nothing to do with DRM. it concerns web pages whose owners knowingly and intentionally make them available to anonymous users via TCP/IP. there’s no DRM, no password entry, no metatags telling webcrawlers to stay away, nothing that would affirmatively indicate to the public that the owner of the copyrighted page does not wish to make his or her page available to anyone.

    The opinion addresses this. The court states: “Field does not allege that Google committed infringement when its “Googlebot,” like an ordinary Internet user, made the initial copies of the Web pages containing his copyrighted works and stores those copies in the Google cache.”

    this answers our question, Josh S. thanks for finding it.

    Whoa! So it looks like Fields alleges infringement only for the “non-volitional” copying that occurs when a user clicks on the “cached” link, and does not allege infringement for the original “volitional” copy made by google when it crawled the site.

    that would be it, kemosabe. it IS users all the way down. heh.

    it is not even an issue of fair use, it’s the INTENDED use. by registering a URL with the DNS server, the copyright owner chooses to make his or her page available via TCP/IP to users on the WWW. every router makes a cache copy of at least a portion of the page (that’s how TCP/IP works) and obviously the user’s computer makes a cache copy. the copyright owner knows – or should know this. webcrawlers, spiders, etc are users (hardly passive ones, but no user is passive.)

    from a technical point of view all Goolge is doing is linking a URL to a cache copy…. which is something we will have to think about.

  • Peter Mogensen

    @poptones

    I’ve heard your “trusted” computing advocacy before. I’m glad to see that you at least – as opposed to most other advocates of DRM – knows the technical facts. As an IT-proffessional I think very little of DRM in general (it is mostly snake oil), but I respect the TCG-specs on their technical merrits. I agree that this will let us implement things which would otherways be impossible. However… such a system can be abused.
    Instead of your advocacy, I would rather hear what you plan to do to ensure, that there will be no negative side effects in terms of competion, privacy and last, but not least, security for the end user?

  • Josh Stratton

    poptones–
    under this grand new system the government gets to pick and choose what “needs to be.”

    No. The government just sets simple, content and viewpoint neutral criteria to be met: is the work copyrightable, did the author file for a copyright, is the work published, is notice attached to the works, etc. These are basically procedural issues, and they’re very easy for authors to comply with. It is not materially different from the criteria for registration under the modern system, or filings under past systems.

    Under your plan there would be no ciriticism of the government because the government damn sure wouldn’t be saying “dissent and critical speech works for the common good.”

    Okay, you’re an idiot. I never said that there should be or would be censorship. The worst thing that could happen to a work under my plan is that it enters the public domain. Whether or not it’s still published in that situation depends on the willingness of the author. And news reports would be perfectly able to be copyrighted. The formalities don’t change, but papers and news shows would be dab hands at sending in the paperwork. Of course, the value of a piece of news is really in its timeliness, not its copyright, so they’d probably have less of a reason to worry about it than most. In any event, requirements for copyright would be absolutely content and viewpoint neutral, and I dare you to find any place where I even hinted otherwise. I hate censorship, and I vigorously support the First Amendment, and I am pissed off that you would even suggest otherwise. Your accusations are totally baseless and deeply insulting.

    An author that doesn’t bother doesn’t cost anyone anything.

    If he controls whether I can lawfully copy his works, then some of my freedoms have been given over to him. When that temporary loss of freedom is more than compensated by the benefits of having works created and published that otherwise would not have been, then it may be worth it. But when they would have come about anyhow, there was no point in my sacrifice, in my payment of my liberty. So yes, it has a very real and significant cost.

    Remember, authors don’t have an inherent right to copyright, but everyone does have an inherent right of free speech which encompasses repeating what others have said. Copyright is a quid pro quo: I temporarily give up a little of my right to republish you, and you give me a work I otherwise would not have had. That’s the heart of the system.

    Three Blind Mice–
    You mean John S.

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

    Poptones-

    Here’s an example of how DRM hurts ordinary people:

    http://www.42hours.org/background.html

    Mice -

    Google cache is like a gun. They only make it, they are not responsible for how you use it. The same as a video recorder, or a P2P network in 2004. ;-)

  • Eric the Songzilla guy

    Basic question (is this thinking right, or overcome by legal principle or precedent):

    Since technically how the web architecture works is that when a client requests a file, the server makes and sends a copy of such file, any copyright violation happens at the server, is the act of the server and and is the responsibility of the server operator.

    If I thus let my server copy and distribute my copyrighted files without restriction how can I have a complaint that others have my files?

    Unless they are placed on another server which re-copies and re-transmits to other clients – at which point that other server is culpable – though it seems only weakly so, since any client could have requested and received the same file from the original server. And unless the server architecture demands it, the file might be available not just through some eyeball-to-screen human interaction, but by a simple machine request at a url like http://CopyrightHoldersSite.com/CopyrightedFile.

    [call this "users need not worry" principle]

    EP

  • http://321portal.biz/no-fax-cash-advance/ No Fax Cash Advance

    I do belive the google cache is somewhat violating certain laws, but it’s the internet and not much can be done.

    No fax Cash Advance

    [url src="http://321portal.biz/no-fax-cash-advance/"]No Fax Cash Advances[/url]

    No Fax Cash Advance Links:

  • poptones

    OK fine, you call me an idiot so now I simply must quote – for a third time – what you yourself said. As you seem to have both forgotten saying this and are now incapable of seeing these words wiitten upon the page before you I will embolden certain parts in order ot better command your attention…

    …I don’t think that you ought to get a copyright unless your work and the method of its publication fall within certain boundaries set to serve the public interest.

    No copyright unless both the work and the method of its publication meets your muster for “public good.” As you are not dictator and we – allegedly – live in a republic that represents “our” interests this means “no copyright unless your work and the method of its publication suits the common good.

    What you have proposed is essentially a more technologically evolved version of Adams’ infamous Sedition Act.

    So you’re right… I am an idiot – I am an idiot for ever getting drawn into a conversation with such a profoundly misinformed, unevolved bit of lawyer larva. It is obvious from your comments you have absolutely zero appreciation for the arts or those of us who strive to create beauty and reflect truth and are interested only in propogating an increasingly litigious society. More laws, narrower laws – let’s carve a regulatory canyon so deep and so convoluted every citizen will be forced to retain their own personal law clerk or they will have no rights at all to their own creative works!

    I’m not a bit sorry to say most americans would agree when I say your ideas are utterly foul. Therefore, as I said before, you are simply not worth the continued effort – you have marginalized yourself. DRM is coming – the tyranical society you espouse, thankfully, is not yet even on the horizon (and never will unless a great many things go terribly, terribly wrong in this country).

    It is wasteful to grant copyrights to works where the author did not need the incentive.

    Lack of copyright certainly did waste Robert Johnson’s life.

    An author who needs it will be likely to seek it out. An author that doesn’t care won’t bother.

    An author that doesn’t care needn’t bother to assert his rights and it costs no one a thing. An author who chooses to assert his rights still costs us nothing, as he is asserting rights granted us all equally under the law

    So setting a small bar to getting a copyright is an excellent way of distinguishing the one kind of author from the other.

    Which worked so very well for Solomon Linda and his family. While The Weavers and their publishers “weemo-weh’d” their way to the bank his family starved and suffered in kenya. But that’s ok, huh? Those Zulus live in a jungle half a world away, what need have they of money or copyrights on works they create?

    You’re advocating more tyrany. In this modern world where anyone can become a creator, an artist, and a publisher, you seem dead set on erecting barriers that only serve the interests of a “publishing class.” We live in an era of information democracy and you are here telling us how great things would be to go back to the era where “publishers” and those under their employ were the only part of society “blessed” with the ability actually derive a living from creating and publishing.

    You’re offended by my comments? Why don’t you go post your “better model for the future” on deviantart or one of the machinima boards and see what sort of response you get. Go post your ideas on the flickr discussion board and see just how well received your perverse ideals are among creative individuals.

    Anyway…, call me an idiot no more, for I am truly well done focusing attention on your very bad ideas.

    Rob… that’s a good example of how DRM can go wrong when users don’t RTFM, but it’s not very unique. My cousin had the very same bad experience when he recorded a bunch of stuff on his XP laptop using Microsoft’s WMA format without bothering to RTFM. But it’s still no more an indictment of DRM than a flaming Pinto is an indictment of all automobiles. How you say… “govno slouchaetsyeh!”

  • http://www.commonsmusic.com Commons Music

    “Not everything should be copyrighted. In fact, nothing should be copyrighted unless it needs to be. It is wasteful to grant copyrights to works where the author did not need the incentive.”

    I grant you that incentive is important, but to just drop everything into the public domain that isn’t immediately registered is not something of which I’d approve. Furthermore, to consider “incentive” the only reason copyright is around is simply not true.

    Sometimes it’s about control, not just incentive. I’ve had many people ask to use my music in their films, many of them documentaries. I give them a thumbs up and they use it, I get a copy a little while later. Most of the time, they are innocuous (the most recent was a short film on the universe), but occasionally they are something I wouldn’t want to be anywhere near.

    For instance, a fetish porn site wanted to use a few of my songs in their videos. I was amused, but said no to them.

    I spent the other day, just on a whim, looking through the Copyright Office database using journalist’s names to see what they registered. Andrew Sullivan was one of them, and he registered only a few things, despite the hundreds of articles he’s written: his books. This doesn’t mean that the articles he’s written are unimportant to him, or that they don’t net him money for reprints and republications, but just that it was a hassle to him to have to mail in the form and $30 each time, especially considering how prolific he is.

    Forget the filing of the form for a moment, and consider that $30 over and over can be expensive, especially if you aren’t being paid immediately for your work. This doesn’t mean that the work isn’t valuable, or that it won’t help the creator make a lively income for themselves one day, but just that at the time of creation, it wasn’t going to cause monetary gain. I like giving the public needed rights, but creator’s deserve some rights to control their own works as well, and shouldn’t have to put up with government bureaucracy to be allowed those rights, either. Just because someone posts a video on their site and doesn’t register doesn’t mean that it isn’t valuable to them, or that they want everyone on earth using it for their own purposes.

    You cited news shows. Imagine the paperwork for registering each report or show. They’d have to hire whole new divisions just to keep up with it.

    But even ignoring that. I like copyright on my music for reasons I’ve stated above, but I don’t want to send in $30 each time I release a new album. I’m releasing them for free, I don’t expect compensation, but if every Tom, Dick, and porn site (not to mention being screwed by some larger entity) can use it, then that’s an anti-incentive, wouldn’t you say? Your system would be fine for large companies and corporations, but punishes the little guy.

  • Josh Stratton

    Eric–
    Since technically how the web architecture works is that when a client requests a file, the server makes and sends a copy of such file, any copyright violation happens at the server, is the act of the server and and is the responsibility of the server operator.

    Well, MAI v. Peak, which despite criticism seems to be popular, would seem to indicate otherwise. The way that computers work is that each memory (e.g. RAM, hard drive, CD) is distinct, and information is copied between them. For example, I am writing this post, with the keyboard. Information is being stored in RAM on my computer. I can also save it to my computer’s hard drive. If I do so, now there are two copies: one in the RAM, and one in the hard drive. I can change each independently of the other, delete one without affecting the other, etc. When I post it, I don’t send information from my computer to a server in the way that someone would mail a letter through the postal system. Rather, I copy the information to the other computer, and most likely delete my copy when the other computer confirms that it has received it.

    An analogy would be if Alice reads a book to Bob over the telephone, and Bob writes it down. In the end they’ll have two copies: the master and the reproduction. But the reproduction didn’t travel through the phone lines. It was created at Bob’s end based on information that traveled through the lines.

    And just as Bob is the one who makes the second copy in that example, so too are users held responsible for what they download. The Napster case briefly stated that downloaders were infringing on the reproduction right. The Utah Lighthouse v. Intellectual Reserve case that follows MAI said that when a web page is put up unlawfully, and a user looks at it, the copy the user necessarily makes (due to how computers work) was infringing. And the Marobie-FL v. NAFED case said that where you have a server that automatically responds to the controls of third party users, it’s those users that are liable for how the server is used. The server owner (as distinct from yet another user that puts files on it) is not liable merely by making the server available.

    Poptones–
    “no copyright unless your work and the method of its publication suits the common good.

    Yes. Of course, as already noted, this is content and viewpoint neutral. And the relevant public good is not, say, rooted in politics or morality (such as how immoral inventions used to be unpatentable). Rather, the public good consists of: 1) getting original works created; 2) getting derivative works created; 3) getting works published and keeping them in the store of collective knowledge; 4) having minimal copyright, if any at all; and 5) ending copyright as rapidly as possible.

    Denying copyright to works because they are DRMed has a basis in all of these aspects of the public good, but mostly lies in 3 and 5. If there is no DRM, third parties have the best chance of preserving works. This is because often, in order to preserve a work, it must be moved from one format to another (e.g. transferring wax recordings to CDs) and reproduced (e.g. people making copies of classical works is the only way that they survived — we have few original documents from antiquity).

    A denial might be based on the class of work. For example, today, you cannot get a copyright on a pictoral, graphic, or sculptural work if it is useful and the useful part is inseperable from the non-useful part. You know those undulating bike racks? The creator tried to get a copyright. He was turned down, because there’s no sculptural aspect to them other than being a functional bike rack. The protection of useful works is chiefly left to patents. Trademarks have a similar doctrine: working parts can’t be trademarks. Wrong subject matter.

    For books, software, music, audio and video recordings, sculpture, etc. copyright would be perfectly appropriate. But architecture? Boat hulls? Those really don’t belong in the realm of copyright and traditionally they have not been.

    Part of this is rooted in the first type of public good listed above. I don’t think that copyright is incentivizing architects, for example, to create buildings. I think they would create buildings anyhow. Given that protection for buildings is so very new, I have a damn lot of history backing me up. And the effect of the real estate market, and improvements in CAD and building materials and so on have been what really drives architectural creation.

    In any event a denial of copyright would never be based on what a work actually says, or who wrote it. If you want to quote something, quote that.

    But did you think about what I’ve said rationally?

    What you have proposed is essentially a more technologically evolved version of Adams’ infamous Sedition Act.

    Nope. You went right over the edge of the cliff. You made up wild fantasies about my position, and then you believed them. They don’t even make sense (as a lack of copyright is not equivalent to censorship) but that doesn’t stop you.

    lawyer larva.

    Actually I sat for and passed the bar some time ago. I’m not in the larval stage.

    It is obvious from your comments you have absolutely zero appreciation for the arts or those of us who strive to create beauty and reflect truth and are interested only in propogating an increasingly litigious society. More laws, narrower laws – let’s carve a regulatory canyon so deep and so convoluted every citizen will be forced to retain their own personal law clerk or they will have no rights at all to their own creative works!

    As an artist (a professional artist, before I got into law) I assure you that I have great respect for artists. But that doesn’t mean that artists should get a free ride at the expense of the public.

    As a copyright lawyer in favor of copyright reform, I think that there should be less copyright litigation, and that reducing the scope of copyright (so that there’s less to litigate over) is a good way to accomplish this goal. And I also think that copyright registration should be very very simple. It should be more simple than filling out a magazine subscription card. And in fact, if you look at the registration forms currently in use by the Copyright Office, you will find that that’s the level of simplicity I’m looking for. It’s little more than name, address, and title of work. Given that we’re talking about creative people, I’m sure that they can manage to write their own names.

    Lack of copyright certainly did waste Robert Johnson’s life.

    Oh? And here I thought that he was murdered while his career was still in the process of taking off.

    Which worked so very well for Solomon Linda and his family

    Yes. If he wanted it, he should have sought it out. It’s no different than being an inventor who doesn’t bother to get a patent, causing his invention to hit the public domain. Or do you refrain from using the wheel, and fire?

    Authors have no inherent right to copyrights. Copyrights are artificial monopolies meant to help the public, granted when it suits the public’s interests. Given that artificial monopolies are inherently harmful, we ought to be quite careful about handing them out, limiting them to only those times where they somehow provide a benefit outweighing their inescapable harms.

    You, on the other hand, want to give them out like beads at mardi gras.

    In this modern world where anyone can become a creator, an artist, and a publisher, you seem dead set on erecting barriers that only serve the interests of a “publishing class.”

    Not at all. I think it’s great for people to act as independent publishers. But I think that that means they should rise to the occasion, rather than have us break our backs stooping to their level. I am asking very very little. Given the great power of a copyright, a tiny bit of effort on their part is not at all too much to ask. Go take a look at the existing registration forms. That’s about all I want.

    when users don’t RTFM

    If you would pay attention, you would have noticed that it wasn’t mentioned in TFM. And hey! How is it that you have a hissy fit over what I propose — rules for authors that ought to be able to fit on a postcard — while you assign blame to an author for not reading a relatively thick manual that doesn’t contain the key information in it.

    You’re such a hypocrite, man.

    Commons–
    to just drop everything into the public domain that isn’t immediately registered

    Actually, I propose taking a page from the US patent system on this one. A brief grace period between publication and the deadline for filing strikes me as a good idea. For patents, it’s one year, and that sounds like a good number. Protection would need to be lower so that there would not be a submarine copyright problem, and so that there would be an incentive for rapid filing still, but I think it is feasible generally. Similarly, a degree of protection for unpublished (and thus unfiled) works would need to exist to guard against pirating manuscripts, but we need to be careful lest it be abused. (As the current equivalent presently is being)

    Sometimes it’s about control, not just incentive.

    Either it is an incentive or it isn’t. If absolute control of a work is worth $30 to you, then go for it. If not, then feel free to not create the work. I’m happy to have copyrights granted so you can make money. I’m quite uninterested in having it be a way for you to censor others, save where those are intertwined. Thus, in commercial situations, or where commercial actors are involved, I think you should have control so that you can ensure payment. Where that’s not the case, I honestly think that people should be free to use your work (provided they can access it) however they want.

    I’ve seen too many unauthorized derivatives that were superior to the originals (some legal, like cover songs, and some illegal, like fanfic), too many works put in peril due to copyright holders having too much control, and too many members of the public being surprised that their behavior was illegal to buy into a control basis for copyright.

    Forget the filing of the form for a moment, and consider that $30 over and over can be expensive, especially if you aren’t being paid immediately for your work.

    Then my honest advice is to find a different kind of work, where you can make some short term profit to finance the long term stuff. Being an author, and being a publisher, means being in business and acting accordingly. I understand that in a copyright system that best serves the public, sometimes authors will lack enough of an incentive to create a particular work.

    Indeed, I would like to rearrange the stars in the sky into new and creative constellations, but current copyright law doesn’t provide me a sufficient incentive, given the cost of my project. Them’s the breaks. If the law that doesn’t incentivize me is better for everyone than the law that would, losing my star-works is ultimately not a great loss. It’d be nice to have them, but the price is simply too high.

    Of course, I would remind you that 99.44% of the time, works have no economic value at all. And 99.44% of the time when they do have some value, you’re going to see the vast majority of that value immediately upon publication. Movies make most of their profits the first weekend in theaters, the first weekend on PPV, the first weekend for rent, the first weekend they’re for sale, etc.

    The rare exceptions to this are not what we should build policy around. That would be like taxing everyone millions of dollars on the basis that a few people win the lottery each year.

    You cited news shows. Imagine the paperwork for registering each report or show. They’d have to hire whole new divisions just to keep up with it.

    One intern fills out one form once a day per show. The form is stupidly easy. Hell, filling out the form could be trivially automated. All you have to do is put some DVDRs in the envelope and send it out that year. If you’re doing that much business, an account for payment is trivial, and the PTO does something similar now (and trademarks and patents are harder forms — especially the latter by far).

    Don’t overstate the difficulty here. I bet that the FCC has them doing more paperwork for routine day to day crap.

    I’m releasing them for free, I don’t expect compensation, but if every Tom, Dick, and porn site (not to mention being screwed by some larger entity) can use it, then that’s an anti-incentive, wouldn’t you say?

    No. I would say that it is a lack of incentive. No one is actively discouraging you. Just not encouraging you as much as you want.

  • poptones

    Dude… I just want to say one more time how incredibly beligernet and condescending your attitude is about all this. I don’t even need to rebuke this crap, as this time you have put plenty of nails in your own rhetorical coffin. Defnding the publishing elite? Erecting barriers between “artists” and the public – when even Lessig is making the point that barrier is quickly crumbling to gravel?

    Dude, you lose – and deservedly so. Get over it. Invent a model that protects society instead of your still larvae-ish wallet.

    Go post your avalanche of recedvist bullshit at deviant art.

    I dare you.

  • poptones

    LOL. What a coincidence. I was right: I’m definitely not alone in my opinion of josh’s “better plan for the future.”

    Not sure what this is, but I found it interesting.

    Comments on Lessig’s post are all over the map, starting with Tom Albrecht’s equation of economic and moral issues, since he believes private property is a moral right. Rob Rickner takes a strong stance that “Authors and other creators DESERVE and have EARNED a right to control their works because of the hard work they put into them (Locke) and because the works are an expression of themselves and their personhood (Kant and Hegel).” But Rickner’s also a CC supporter. Josh Stratton says flatly, “I don’t think that authors deserve anything.” He doesn’t give a damn about creators, he just wants their creations. He’s not a big CC supporter—“I’d prefer to relax the laws instead.” I’m not sure Stratton is a full “you wrote it, it’s mine” anti-copyright advocate, but he’s close. I disagree with Stratton even more than I disagree with RIAA (if that’s possible).

    It has long seemed to me the big dividing line between what I have been advocating re DRM and the objections many have to it center along the concept of moral rights. We’ve not had moral rights in US law, but it’s not uncommon around the world. Given the personal scope of this new publishing medium, I suspect most folks, if asked in a context that reflects this personal interest, would agree some degree of moral rights in our works would be a good thing. Commons’ example about his music being used in porn videos is a good example. In Josh’s imaginary hell not only would CM have no control over his work (and thus, through asociation his reputation) nor would he even be paid for such slander.

    Josh, your arguments are DOA because you refuse to “get” the utter fact there is no line anymore between creator and consumer. as this media evolves we will all increasingly become both consumer and creator. Automated image viewers that render choreographed full motion slideshows, music and video players that will make it easy for anyone to produce custom mixes and even their own shows… it’s all well on the way. Much of it’s already here, albeit it’s still quite crude and the absence of DRM is limiting the scope what manufacturers will offer in the commercial marketplace.

    Sacrificng copyright protections diminishes every single one of us because it inhibits our future ability to engage in commercial activities. You can argue til you drop that this was not the primary intent of copyright, and that’s fine – but copyright was a response to a world where books and knowledge were incredibly expensive and even the ability to read was comparatively rare. Third world countries today do not have the illiteracy rate this nation had when our constitution was written.

    A DRM society does not mean anyone gives up their rights so long as we all have equal protection under the law. That means no publishing class. It means a ubiquitous system of rights management; It means thinking of “data” as “property” – which isn’t much of a shift because it already is, whether you want to accept it or not. “Data” is the new oil that lubricates our culture. Creating a world where the commoner has no rights of ownership over her own creations only ensures a secure future for the publishing elite.. and the litigious bigots that represent them.

  • Josh Stratton

    poptones–
    Dude… I just want to say one more time how incredibly beligernet and condescending your attitude is about all this.

    No, just to you. You’ve consistantly been insulting me (beginning with “legalese mumbo-jumbo attempt at sounding high-minded”) and missing — deliberately missing, I think — my argument. Rather than have a discussion, your strategy has been to mischaracterize what I’ve said and more often to ignore it, and to just create straw men. Often these arguments that I have not made, and which you ascribe to me even after I’ve pointed this out, have been inaccurate and insulting on their own. (e.g. calling my proposal a version of the Alien & Sedition Acts, claiming that I support censorship, etc.)

    I generally try to remain civil, but you do seem to have the ability to push my buttons while strenously arguing nonsense at me. I apologize if I’ve upset you, but I do not think that I’ve done so for no reason. Meanwhile, of course, you are so far sticking to your M.O., by playing the belligerence card while not stepping up and admitting your culpability as well.

    Defnding the publishing elite?

    Well, I have no beef with the concept of publishers. Just as small businessmen need investors in order to enlarge their business, and just as these investors are not charities and will want stakes in the business commensurate with their investment, so do publishers provide helpful services to authors that are willing to deal with them. Consider:

    Alice is a waitress and an author. In what spare time she has, she writes a book. She’s invested her time (which could have been spent doing something else, such as working) in writing. Now she wants to publish. If she keeps waitressing, it will take her a long time to save up enough money to get the book printed in any quantity. She has no contacts among bookstores or other distributors, so she doesn’t really stand out from any other authors. This may make it difficult to get stores to put her book on the shelves. She’ll need more money still if she wants to advertise her book to the book-reading public. So while she can go it on her own, and while she will reap all the rewards — if there are any — she has to assume all the risk and cannot really act quickly. The book is finished, but could take years to get into people’s hands.

    Meanwhile, Bob is a waiter, and also an author. He too has written a book, investing his spare time into doing so. He wants to publish it, but goes to a publisher. The publisher has been in business for a while, and specializes in this market. He has a pretty good idea of what sorts of books are popular and what sorts of books won’t be. (Though you never know for sure) If he likes Bob’s book, he will take a chance on it. He will invest his own money in having the book published, distributed, and advertised. He has developed contacts in the book world over the years, and can get books ordered by bookstores much faster than Bob could have on his own. However, in exchange for the large amount of time and money he is spending and risking, he wants a commensurately large reward. He will take a share of the profits, if there are any. And he may want to exercise some editorial control. If Bob doesn’t like having to take a smaller reward for a vastly smaller risk, and perhaps having to make some changes, then he is free to not do business with the publisher. But if he is okay with it, and the publisher is okay with it, then they can come to a mutually beneficial relationship.

    This is basically what publishers are like. Of course, the more that authors come to them, and the more money they invest, the more control they tend to have. Just like how a business might start out in a garage with a couple founding partners that own everything, but will have many investors by the time it goes public, and the founders only own a few percent. The VCs can control things if they want, and will in order to safeguard their investment.

    This is just reality. People do not usually give away lots of money and expertise for free.

    But this is not to say that I am against self-publishing. I’m all in favor of it. Authors need to have alternatives to working with publishers. A system of opt-in copyright with formalities, does not impair authors. The main reason that it doesn’t impair them is that an author can create works without a copyright, and often works are created without the author having thought of or been incentivized by a copyright for a second. The other reason is because I view authors as being responsible people, able to take steps to protect themselves if they’re concerned about that. An author who self-publishes a book and intends to make money from it is going to have to be capable of either entering into contracts to get the book printed, to get ISBNs, etc., which will involve some decisionmaking, or to set up a presence online by which copies of the book are only distributed to people who pay (which involves some programming, or business relationships with programmers) or through advertising (which will be pretty much the same). No matter how much you advocate self publishing, you cannot handwave some obstacles out of the way. We’re not in a position where a book can go from the mind of the author to the shelves of the reader, and I doubt that we will ever be able to. Adding an amazingly simple form to the mix — one that is intended to give the public some notice, preserve the work against loss, and to determine which authors are serious and which are not — is no real hurdle. It is not difficult, and for you to pretend that it is indicates that you have a very paternalistic approach to authors. I find that insulting at least.

    Re: the large quote, Crawford has misunderstood my position, and I’ve been corresponding with him about it.

    not only would CM have no control over his work

    Untrue. As I have said repeatedly, he would have just as much control over his work as he wanted to assert. However, it would be up to him to indicate that he wanted control. That is, he would need to opt in, rather than opt out.

    Copyright is an expensive government service. It should not be given away to everyone, all the time. Rather, it should be given to anyone who stepped up and asked for it, provided that they took that modest step. For most works, no one cares about copyright, and the public domain would be greatly enriched. When someone does care, it’s trivial for them to get a copyright. This reduces the expense to the public while providing at least as much, if not more, of a benefit.

    and thus, through asociation his reputation

    See above regarding how he can assert all the control he wishes, so long as he makes that wish known. However, regarding reputation, it can hardly harm an author’s reputation if their work is in the public domain. It’s known that they would not have control over the use of their work, and therefore would not be associated with people who did use it. Besides, reputation doesn’t fit into the concept of a utilitarian copyright system, and no other system makes even a lick of sense. This is probably why there is no copyright system in the world that really lives up to the lip service regarding moral rights: if they did, copyrights could never expire, and creativity would die out due to the rent-seeking behavior of existing authors.

    you refuse to “get” the utter fact there is no line anymore between creator and consumer

    Actually, I understand this quite well, and my proposal tries to support these sorts of bush artists that chiefly work in the derivatives realm. By having so many works not be copyrighted (because the authors don’t care about copyrights), they have more raw material to work with. By having the broad exception for noncommercial infringements by natural persons, people who create AMVs, or fanfilms, or fanfic, and so on are protected. It’s quite like the existing exception that protects cover artists in the music world and fair users.

    I myself enjoy all sorts of works from this realm. I’ve been familiar with any number of them, e.g. doujinshi, long before people like Prof. Lessig brought them to the attention of our little circle. I understand full well that they are legitimate artistic works, despite that they are presently more illegal than not, and I’d like to do what I can to help all sorts of authors and creative works. My thoughts on copyright reform have always been along these lines.

    DRM, however, would kill them. How can you create an AMV if you cannot rip any video out of the anime DVDs, and cannot rip any audio out of CDs? How can you create them if people are not allowed to make the tools necessary to recombine these materials into something new? And how can you distribute them if networks look for watermarks that cause them to block those works?

    Creating a world where the commoner has no rights of ownership over her own creations only ensures a secure future for the publishing elite.. and the litigious bigots that represent them.

    I agree completely. But it’s you that wants to create that world. I’m the one fighting against it.

  • ACS

    It seems clear to me that Field’s case and the upcoming Googleprint cases are irrelevant to one another. In Fields case there is a fair use defence based on the necessity of caching to execute searches. On the other hand googleprint offers a search of printed copyrighted material as a service. The copying in Google print is therefore not incidental to a valid exercise. I would think it reasonable to assume that Field will not be cited by the court as ratio in Googleprint – but I may be wrong, lets just wait and see.

    Maybe that is the argument Google must make – Searching existing literature is a valid exercise.

    For those that would blindly follow Google without making reference to such arguments would appear by definition to be unreasonable.

    So could anyone suggest a valid reason for searching all manner and measure of literature? and if they can please advise whether such a purpose would be carried out by merely indicating the resulting title or whether the whole book could then be displayed?

    I look forward to this.

  • http://www.commonsmusic.com Commons Music

    Josh:

    I appreciate your position, but I’m afraid we’re just going to have to agree to disagree. Thanks for a lively discussion.

  • poptones

    …deliberately missing, I think — my argument.

    Your argument? You mean that nonsense about abolishing copyright?

    I didn’t miss it, though I think you did. You explicitly said this was your goal and when I pointed it out you denied it. All that other stuff in between is just so much rhetorical bullshit – you already pointed out the objective, and it’s an objective that would be bad for everyone.

    And, “in preparation” for that culture, you said copyright should only be granted to works that, in both substance and in publication method, benefit “society” – which essentially means the government gets to decide. When the evil in this was pointed out you then concocted this ridiculous long winded rebutal in which every single one of your points only addressed the method of publication. You say you’re against censorship but the “tests” you espouse would directly contribute to exactly that.

    It’s quite obious that law degree did not come with much of a background in either history or in logic – you sure haven’t demonstrated any here.

    I’m the one fighting against it.

    No, you’re not. You’re sticking your fingers in your ears and pretending the truth is not what it is. Get this through the peanut butter: There is nothing you can do to prevent DRM. DRM is technology, it is here, it is evolving – and it needs to be because DRM, if done right, is empowerment. What you are advocating is a marxist society where the individual owns, and is able to achieve, virtually nothing except through the blessings of an elite power class; In an increasingly egalitarian society where information is commerce you want to strip the proletariat of any and all rights to ownership.

    You are advocating tyranny. Your solution solves nothing except to create a world with more lawyers, more paperwork and litigation, and an even greater imbalance of power between the monied elite and the proletariat (most of whom would, in your society, be relegated completely to the peasant class).

    Copyright was fabricated in a society where knowledge was scarce. Copyright was created to protect “society” from exploitation by a publishing elite that controlled everything from the presses and the paper and the ink to the ships that carried “knowledge” from country to country.

    Books at that time were entertainment to only a few. Literacy was low among the lower class and even those who could read could hardly afford books. Even public libraries were rare – if you were not wealthy enough to afford college, you were not welcome in the library.

    Over time publishers retained control simply because of who and what they were, but coyright provided a good balance wherein society could grow and evolve and educate itself. But until only a couple decades ago you still needed presses and ink and ships to carry knowledge.

    Meanwhile, copyright has also evolved to protect the interests of another publishing elite: the entertainment industry. In our more egalitarian culture even “commoners” can afford books as entertainment, books as knowledge – even books to color in, tear to pieces, and stick on the refrigerator. Other forms of publishing – records, tapes, cds, movies and the movie houses that support them – a pretty large industry. That publishing industry still pales, however, in comparison to many other industries – including the technology industry upon which the entertainment industry is increasingly dependent.

    This is no longer a society in which knowledge is scarce. Knowledge in this society is plentiful as water; turn on a tap, or even pick up your laptop and venture outside and you will see our cities are literally “raining down knowledge” upon their residents.

    In this new society where “living” is relatively cheap (even the hardest working among us generally has enough free time to “consume knowledge” for some part of the day) information is currency. If the value of Google does not make this point clear then turn on your tv set – that stuff is not free. Businesses spend fortunes for a bit of our attention, and online businesses buy and sell information on us like stock shares… which also, btw, happen to be nothing but, essentially, information.

    Information is no longer scarce, although knowledge is still not so common as it should be. If I want to read a scientific journal or a textbook on linear algebra I may not find it online, but worse case is I have to actually walk into a libray… which are now plentiful. Those libraries may not be as common on the australian outback or the jungles of central america, but in those places computers are not yet terribly common either… and anyway it doesn’t matter, because libraries still contain a LOT more knowledge than online repositories.

    Computers with access to the data that’s stored in my local library is comparatively rare. Why? Because the publishing cartels own that data and they do not want it given away on the internet. They probably would make more of it available – and every indication we have seen makes a very good case fo rit – but without a system of rights management to make sure we “borrow” instead of “copy forever” it ain’t happening.

    In this context alone DRM would be beneficial to society simply because even limited access to knowlege is better than no access at all. You could revoke copyright and just “steal” it – but with no rights to copy who pays? Someone has to host all that data and with no reliable means of creating trustworthy peered communities that’s a hell of a bill someone has to foot.

    But that doesn’t matter: you’re not going to abolish copyright and suddenly convince them “oh, that’s it, we have no copyrights so we’ll just give it away!”

    Nu uh. Doesn’t work that way. Go to russia or central america, where “piracy” can account for 75% or more of the market and you will still find Warner, Sony, and MTV. They have the brand, and they have the infrastructure. They still own the channels of mainstream communications. And what do you think happens when they lose their copyright altogether?

    More commercials. More DRM laden appliances. And people will still buy those appliances because the cartels control the channels of communications. Remove the right right to copy and post it all on the internet – they’ll just take it down. Because they can.

    They will form guilds or associations or whatever you want to call them, and they will still control it all. Flood your CD collection to Easynews, it won’t matter – if the cartels feel threatened they’ll just tell SBC and AT&T to throw the switch until Easynews complies with their takedown requests. They may not take down every peer but they will put the crunch on them hard enough they’ll comply.

    And people will still buy books from the cartels because books are still more convenient than printing an ebook you got for “free” – not to mention paperbacks are far cheaper than the paper and ink it would take to print them.

    And when ebooks come out they’ll still be DRM’d and people will stil buy them. And they’ll buy the ebooks because the ebook player won’t play unprotected stuff, and you can’t get a license to build a DRM player unless you agree that yours won’t play unprotected content either. and you’ll have to buy an ebook reader if you want access to the new books and magazines, because without copyright they had ample incentive to switch. You can reprint all those “public domain” works all you like, but until someone starts writing new works and donating them, that’s all you’ll have in the “free” world. and good luck eating, by the way, while you spend the next year trying to assemble the elementary math in the new era wiki into a usable “free” textbook.

    But copyright isn’t going anywhere – nor should it. Overturning copyright at this point would be monumentally bad for the proletariat, because it would mean destroying all rights to individual ownership.

    We do not need copyright to protect access to information anymore. And overturning copyright also would not mean greater access to information (at least not unless we are ready to launch our own october revolution and seize control of every telecommunications center, pressing plant and server farm in the nation).

    And even if we did that… what would we have? The “right” to vegetate in an infinite supply of pop music and television shows.

    Creating a scarcity of some information is not a bad thing. I don’t think any of us would disagree that a scacity of access to our bank account and pin numbers is a bad thing. And that same scarcity is what drives currency… I cannot just spin dollars out of dead trees. Even on the odd chance I can it is still illegal, Does the world directly benefit from having peices of paper made scarce simply by fiat? No.. but we benefit from the infrastructure that system of exchange supports.

    Again I’ll remind you: Information is the new currency.

    Fiat banks are illegal, and for pretty good reason. No one should be staking their future on tulip bulbs or decorated seashells. But there is nothing, in this online world without a level playing field of trust, to prevent me from creating an excrow service. And I don’t even have to call it an escrow service… I could call it “World of Warmongers” and make it a game. I could have players, for a price, play in an arena. I could make it compelling and trendy and glamorous and everything people want to be in real life. And in exchange for their admittance to my world they get the opportunity to compete for game money.

    And because I control the channels of communication and the rules, I can banish anyone essentially at a whim and they are powerless against me. but that’s ok because they “broke the rules” and there are still all these thousands of people who have invested their trust in my world. So now I have coercive power over thousands. What to do… they might get frustrated from the pressure and leave.

    Guess what? For a limited time you can buy these cool new in game goodies… use them to obtain more game money! More game fame! And if that’s not enough for you… in exchange for a Million credits, in a special partnership deal with banana peecees limited, you can buy a brand new banana peecee! Better gaming experience! More kills! More money and fame!

    So long as I control the channels of communications, I control the money. And if I turn the other way while my players exchange “game goodies” in the real world for real dollars (they did work for them, after all, and should have that “right”) then I can, essentially, create all the infrastructure needed to run a fiat bank without actually calling it a fiat bank.

    It’s “entertainment” – only it’s not just entertainment to the people who have invested their time and effort into my bank when I pull the plug. Technically they have lost only a ten dollar a month membership which they are no longer obliged to pay… but what of that trust? it doesn’t matter.. I made my money, and now I want to retire. Find another game to play.

    That was the scenario of “now.” Here’s the other one…

    I’m megahard computers, inc. And I own 90% of the desktop business. Accountants use my software and artists use my software and.. hell, everyone on the gol-darned planet uses my software. But I’ve been getting a bit of a tarnished reputation lately and people are starting to look at these others who have been foolishly trying to compete with me. Thankfully I own all the money in the world and spending generously in many foundations to recover some of that image. Hell, I could spend like Fifty Billion Dollars and still have all the money in the world!

    But there’s still this matter of competition. Lots of exploits and attacks lately and the software has gotten kind of a black eye. People don’t trust the software so much. Problem is, about half the people using my software are using this realy really old software and they won’t upgrade or buy new machines. And that’s kind of understandable because upgrading isn’t cheap. So how do I convince them to upgrade?

    By convincing them this new software is actually pretty damn trustworthy. But it’s not trustworthy just because it’s new software, it’s trustworthy because I’ve actually specified hardware to help secure that trust. Essentially we’ve built an ATM machine without the cash drawer and put a pretty desktop on it.

    And guess what? To help fund this upgrade we will give you the new operating system! We will even give you the hardware!

    It’s not a direct thing.. of course. here’s what we’ll do: when you buy a new megahard peecee with the built in ATM functionality we will stock that ATM with an equivalent amount of online funds. If you buy our entry level “please upgrade now” model will will show you our gratitude by filling your megahard money e-wallet with $1000 in megahard money that you may spend with any of our megahard money partners. You can even purchase secure VISA PIn numbers and shop at any onoine retailer that accepts visa! Use it to purchase cds or itunes or books or even upgrades to your megahard peecee!

    Now, thanks to this introductory offer of the new megahard peecee and the megahard money e-wallet and the megahard media player, we have established a pervasive system of digital rights management. Only you still cannot connect peer to peer and exchange money because we are tied to the credit banks and the credit banks wouldn’t like that. You can still play World of Warfare until the next CEO retires, but thanks to our pervasive new DRM system you will no lnger be able to exchange those in-game goodies for porn because we can track every transaction.

    But that doesn’t matter, right? Because 90% of the world is just fine with this safe new place we have created for them. They can have their paychecks autodeposited into the megahard money manager system and use their megahard moneycard at any grocer the same as cash. Ninety percent fo the world likes this new system we’ve created and they can’t all be wrong… you don’t like it? Well then, what are you trying to hide?

    It doesn’t have to be like that. Digital Rights management gives scarcity to information. That doesn’t have to mean making fewer copies of musical works available – it can also mean making unique copies of musical works available.

    DRM has a bad rep because it’s presently pooly implimented and because most people don’t see it as protecting their rghts, they only see it as protecting the interests of the people who already own all the channels of communications. “IP theft” doesn’t mean anything to us “little guys” because we don’t have any ownership of that system of commerce.

    What makes some baseball cards worth ten thousand dollars and some worth nothing? Scarcity. I cannot print a vintage stormin’ norman baseball card. I can’t even print a genuine yuyhakusho trading card, though I can buy a box of them at wal-mart. And if I’m lucky I’ll have one rare card in that box and I can sell it on ebay for ten, twenty, even thirty bucks. Because we live in an egalitarian society and some people, as they say, will buy anything.

    With a system of meaningful DRM I can give that same scarcity to online works. And, just like yuyhakusho and stormin norman, copyright is what protects the scarcity of those works.

    The big difference is: in the online realm I can, literally, spin money from thin air. Even without controlling the channels of communication I can do it if I have a robust system of DRM. Because I can create new, original works. I can publish a work just for you and DRM makes it very hard for you to violate our trust. Will some people violate it? More than likely – but if we develop a system in which everyone benefits and has a stake then, just as most people will not knowingly accept stolen property or forged currency, no one will want to violate that online currency of trust.

    In the realm of “media,” a file could be given attributes that say “you can use this file in any work” and any DRM enabled creativity software would be able to read that information and would allow it. Of course if your goal is to give to the public domain you could jsut use an un-drm’d file and be done with it – but the DRM option would still give you the option of attribution which the legacy file would not.

    You could include a contract that the file, if redistributed, be paid for.. perhaps a penny per copy. (Or not distributed at all, in which case your work would never be included in derivative works.. of course you would also never be given attribution thus limiting your opportunities to achieve greater popularity.)

    And none of this means giving up your “privacy” – at least no more than you (don’t have) have now. And it also doesn’t mean you have to “check in” with some central authority for every transaction because every rights holder could operate their own “wallet.”

    That’s a large part of the point I am making: because we have a system of trust, you and I can transact business privately under whatever terms we agree. No one has to know what went where – if we use an established currency rather than a fiat, the only “trace” would be when the bank saw me cash in serial numbers that it may or may not know were once in your possession. In other words, DRM gives us a system of exchanging “cash” online without paying usory fees to the money changers at every step.

    Hosting providers could even make online license agents a feature of their service, offering you a 24/7 accessible licensing pool where you can collect royalties for works as your work grows in popularity. The same DRM technology that gives physical attributes to entertainment also gives scarcity and relative security to whatever online currency you care to barter. Cellphone operators could even establish exchange centers where cellphones could be used to transact business in those parts of the world where computers are not so commonplace. Because there would be vastly greater competition in this area the current ridiculously high transaction fees charged by the few now offering these features would have to be reduced.

    Now, even an AMV might have ten or thirty different sources of artwork. An hour long film might have dozens or even hundreds. You might end up creating a work that needs to collect a dozen or maybe even a hundred different licenses when a new viewer first downloads it. But because we now have the means of pooling resources in trusted fashion it would be relatively easy for a group of creators, or even a single creator, to pool those resources into a single licensing agency. The difference here is, because these are collectives of individuals operating in communities the relationships can be less coercive.

    Applying DRM to “media” facilitates access, not hinders it, because DRM embedded in media gives third parties trust. Try getting a documentary on one of the PBS “independant voices” shows – you’ll have to come forward with signed releases for every last little thing because “fair use” is so poorly defined they are not willing to risk litigation for any infringement.

    A system of DRM would resolve this in an instant: more works would be offered online, and those works would contain clear terms for their use. The producer can either agree to those terms or choose something else in its place. There is no ambiguity, no thousand dollar phone bills and weeks of leaping from agency to agency seeking clearance for some three second snippet of sound.

    The DRM systems being offered at present all suck because they’re designed, by the elite who control the channels of communication and commerce, to facilitate sustaining control over the channels of communication and commerce.

    DRM does not have to be that. We, in the “free” community, should be striving to offer a better and more compelling system. We should be shipping every linux desktop with a media client that makes magnatune every bit as compelling as itunes. We should be doing all we can to encourage developers to provide a robst DRM system for OGG and a “trusted” kernel and a means for open source developers like Canonical and Redhat and Mandrake to offer signed and trusted kernels the second trustworthy hardware platforms are available.

    We need to compete. Pretending the future does not exist will only ensure we remain serfs and squatters.

  • http://www.hellyer.net/ pjh

    w.r.t. book scanning. Consider that there is demonstrably no market for the vast majority of printed works. The proportion of titles in copyright that are reprinted/republished—ever—is miniscule, and that proportion shrinks over time. This relates to the fourth factor for fair-use, even of a work reproduced in its entirety.

    Once they are scanned and available electronically (low incremental production cost), there may well be a viable commercial market for the works in aggregate. Ironic, isn’t it? Perhaps the copyright-holders should be paying google…

  • Kenny Canfield

    three blind mice wrote:
    fair enough, but the Cache is made by Google, stored by Google on its servers, and made available to the user to download. how can Google be considered as �passive in this process�? or is it users all the way down?

    See page 9, “Field does not allege that Google committed infringement when its ‘Googlebot,’ like an ordinary Internet user, made the copies of the Web pages containing his copyrighted works and stores those copies in the Google cache.” (Emphasis original.)

    Thus, the copies you are discussing–ones Google might not be passive in making–are not relevant to the case. The case deals with the later copies.

  • ACS

    “Field does not allege that Google committed infringement when its ‘Googlebot,’ like an ordinary Internet user, made the copies of the Web pages containing his copyrighted works and stores those copies in the Google cache.” (Emphasis original.)

    This may have been a problem with fields case. Consider the facts, Googlebot searches the net and makes one copy. Users of Google can then access that copy. But are they accessing the original site or the original document. This argument leads back to the concept of deep linking – really. I think we are above and beyond that timeless classic.

    I have to take issue with suggestions that this case goes to helping the Googleprint case. There is nothing stated here that deters me in my belief that copying information from a hard copy or digital format that is not publicily available without consideration onto a database will result in infringement.

    It is clear that the original copying is an infringement unless a defence or exception can be established. It is argued that fair use will come to Googleprints aid. Maybe, again:- is there a fair use for a database of litereary works. Probably:- Literary works are the encapsulation of our culture and the use of technological means to search for references within that data should not be prohibited by law.

    This of course leads to the second question:- can Googleprint display the title and author of the works, a passage from the works or the entire work??

    I think it is clear that the name and title fall under fair use and so may a relevant passage. It is probably only a large portion or the entire work which would create problems.

    Although I am largely against Googleprint in philosophy I cannot find any reason to consider it as an infringement so long as only limited portions of titles are displayed to the public if it is found that the original copying is covered by one of the fair use defences or exemptions.

    Therefore this debate should focus on

    (1) the application of fair use to the original copying of works to the Googleprint database; and,

    (2) how much of a work can be displayed by GooglePrint

    Your comments are welcome.

  • http://concurringanddissenting.blogspot.com C&d

    I thought about the digital library myself in the past.

    Such a library (or something close to it) exists right now. The Oakland Public Library has a link for its patrons to go to “Net Library” where you can actually “check out” books for a day. You cannot download the book or copy it (unless you want to do so page by page, screenshot by screenshot.

    As for the opinion, I though a few sections had rather weak analysis — including the parts on direct infringment, as well as transformative use — but the decision was correct based upon fair use, implied license and estopple.

  • http://concurringanddissenting.blogspot.com c&d

    I thought about the digital library myself in the past.

    Such a library (or something close to it) exists right now. The Oakland Public Library has a link for its patrons to go to “Net Library” where you can actually “check out” books for a day. You cannot download the book or copy it (unless you want to do so page by page, screenshot by screenshot.

    As for the opinion, I though a few sections had rather weak analysis — including the parts on direct infringment, as well as transformative use — but the decision was correct based upon fair use, implied license and estopple.

  • Josh Stratton

    ACS–
    I don’t really see how you can draw a distinction between a web search and a book search. In both cases, the service being offered is that of searching for particular terms within a number of copyrighted works. In both cases, in order for this to be possible, the search engine must cache as much of the work as one can search for. That is, if you only cache the first chapter, a search for things in later chapters would come up empty; if you cache only the first paragraph of a web page, a search for things further down in the page would come up empty.

    While one could argue that a database could be searchable without having to have the exact text cached, I think that this is a poor argument because first, courts should avoid dictating that certain technical solutions are better than others. Second, because the usefulness of such a search will depend on more than whether or not particular matches are found. Imagine if a search for a web page merely produced the answer yes or no. While it might be interesting to know if my search term existed anywhere on the web, more information is required to make this anything more than a novelty. This means displaying results to users. When you do so, a varying amount of information will be necessary: a list of matching web pages is better than ‘yes,’ but it is still daunting to users to have to look on each page to see just how it matches the search. Such a system would be pretty inefficient. Showing the entire page would similarly be daunting, since much of the material is likely to be extraneous, or even if useful, a big hit to bandwidth. But showing a passage from the page that is the bit that matches the search is a good balance between too little and too much information. It allows a user to get a relatively short page, but gives a good idea of which of the pages matches what the user was looking for (as opposed to the literal query).

    As for a reason why people ought to be able to search through books, well, why not? There is useful information for a start. There are lots and lots of books in the world. Aside from having a staff of really well-read people at your disposal, can you think of a better way to know what book contains the information you’re looking for? A card catalogue is a primative equivalent of this, but it’s quite limited because it relies on people to decide what subjects the book deals with. If you’re looking for a book based on the name of a character or a half-remembered passage within it, etc., the card catalogue is not useful due to its brevity.

    Sure, we haven’t had this sort of thing before, but I believe that to be due to technical limitations. If we can’t have all human knowledge right at our fingertips, at least let’s have tools that make it easier to find the knowledge we’re looking for. Since the book search will only display a small amount of information in order to let you know that you found the right book (much as the web search does now), it’s not as though you can avoid going to the library or bookstore to get the actual book.

    Also, be aware that copyright does not cover the title of a book or the name of its author. In fact, trademarks et al may or may not even apply to such things, depending on circumstances, and even if they do, that doesn’t mean that listing them is an infringement.

    Commons–
    I guess so.

    Poptones–
    Your argument? You mean that nonsense about abolishing copyright? … You explicitly said this was your goal

    No. I do not, and have not, advocated abolishing copyright. I am interested in reforming copyright so that it best serves the public interest. This may include expanding the scope or length of copyright, but it just as much includes reducing it. Given where we’re at today, I think that a reduction would be most appropriate. But I would never favor abolishing copyright altogether so long as it is capable of serving the public interest. While it may not serve, or may not serve optimally right now, I am confident that it can. Of course, I respect that some people may hold differing opinions.

    If you think I’ve been saying otherwise, why haven’t you supported your outrageous claims with some quotes? The answer is because you are either very confused, or are maliciously lying. I don’t appreciate your baseless accusations either way.

    [Y]ou said copyright should only be granted to works that, in both substance and in publication method, benefit “society” … every single one of your points only addressed the method of publication

    Now that is almost something I said, though you’ve thoroughly twisted it.

    I will say that some classes of works such as boat hulls and architectural works, should not be copyrightable, just as we don’t allow copyrights on useful PGS works now.

    I will say that some works should not be, and presently are not, copyrightable due to substantive issues, such as facts, and uncreative compilations of facts.

    I will say that some forms of publication — such as those encumbered by DRM — should cause the works so published to be placed in the public domain. This is just as we used to do with works that lacked notice or which were published without being registered, etc.

    And as long as I’m making a list, I would say that some works should not be copyrightable due to the involvement of certain parties in their authorship, so that works created by government or created with government funding are not protected. This is because in the first case, government is not like other authors and does not need copyright as an incentive to create works. Governments already have a much more compelling incentive in that they should serve their people. I would extend the current 105 to cover any governmental body. In the second case, as a taxpayer, I just don’t like my tax dollars subsidizing an author so that they can create something, and then subsidizing them again so that they can make me pay if I want a copy. So, e.g. NEA-funded art would not be copyrightable, while privately funded art would be; the artist would get to choose how he wants to go.

    None of these are new ideas, and in fact they all have long traditions in our copyright history.

    What I am adamantly against would be denying copyright based on the content or viewpoint of a work, where those terms are rooted in First Amendment jurisprudence. Pornographic works, works critical of the government, etc. should all be just as copyrightable as religious texts or pro-government pamphlets. I do not believe that there is any danger whatsoever of censorship merely by limiting copyright in the ways discussed above.

    There is nothing you can do to prevent DRM.

    I disagree. I think it will be difficult, as it is supported by entrenched and wealthy publishers (and a cadre of deluded people that think it will somehow benefit them), but I think that it can be stopped and that it is important to try. And besides, I don’t go in much for defeatism.

    Your solution solves nothing except to create a world with more lawyers, more paperwork and litigation, and an even greater imbalance of power between the monied elite and the proletariat

    Of course I disagree. But note that my proposal would reduce litigation and an imbalance of power (not just by marginalizing DRM, but also through the noncommercial natural person exception). Paperwork — for authors — would go up slightly, but only back to historical levels. The burden would be no greater than that seen through to the 1970′s, and which any professional author still has to experience today, given the very low value of an unregistered copyright.

    I don’t think it would create more lawyers. In fact, my aim is to restore copyright to the rather low profile it used to have, by making it very agreeable to most people and how they behave. But I don’t see that more lawyers is an inherently bad thing.

    Creating a scarcity of some information is not a bad thing.

    Scarcity for its own sake is a bad thing. Imagine that someone invented a replicator, like from Star Trek, but which only worked for food. You could put any food you wanted in, and it would learn how to make it, given an adequate supply of matter and energy (some of which would come from recycling wastes). The ‘patterns’ of the food could be shared so that someone who wanted genuine Tibetan cuisine didn’t have to go to Tibet in order to scan it in themselves.

    Now, if we had this, we would basically eliminate or so massively reduce scarcity with regard to food that we could wipe out world hunger. And living expenses would go down, since people would not need to spend much on food. Farming, meanwhile, would be severely impacted, along with other industries that were involved with the creation, distribution, and preparation of food.

    If we made food scarce to prop up farmers et al at the expense of people who needed to eat, it had damn well confer some big benefit on the hungry people of the world. Something that outweighs the harm they’re enduring by not having unscarce food. It is possible that there would be a good reason for a system of artificial scarcity. But this goes beyond fetishizing scarcity for its own sake, and instead weighs the pros and cons to society, rather than the small group that wants a subsidy.

    We’re already in this world with creative works. And whether or not making some works scarce by fiat is a good thing will depend on how much society benefits by doing so, in comparison to how much they are harmed by doing so. To concentrate on the people being supported at the expense of society is entirely backwards. If we were going to do that, then we might as well just give artists a truckfull of free taxpayer cash in exchange for nothing. It would be great for them, but lousy for everyone else, and frankly, everyone else has to win.

    I can’t even print a genuine yuyhakusho trading card, though I can buy a box of them at wal-mart.

    By that point in your diatribe, things have gotten too bizarre to bother with. However, I would say that I never understood people who played those card games where you have to go out and buy special cards. Why not just get any piece of cardboard and write down the appropriate attributes on it? It might not look as nice, but it plays just as well.

    because we have a system of trust, you and I can transact business privately under whatever terms we agree.

    First, you continually misuse the word ‘trust.’ When you lock someone in a cage, your expectation that they cannot get out is not trust in their unwillingness to escape, and your relationship with your prisoner is not one of trust. It is in fact, mistrust, since you would surely not imprison them if you had any trust that they would stay where they were.

    Second, I have strong reservations about your overall proposal. I believe that a certain degree of laxity is beneficial for society. For example, many copyright infringements either fall within fair use, or are minor enough that they never rise to the attention of copyright holders. If Alice is unable to watch or record a show on TV, it might not be a fair use to download a copy without authorization, but it does no great harm either. And in the contract realm, an immaterial breach is not sufficient to make a contract void, and in the tort realm, a minor harm might result in the most nominal of damages. When you’re driving along the highway, you might need to drive a little closer, or faster, or slower, etc. than the law technically allows, just to continue to drive safely. Society can’t function if everything is enforced against everyone, all the time. It’s never happened and probably shouldn’t happen.

    DRM threatens to rigorously enforce the whims of one of the parties (let’s not maintain the silly idea that you’re talking about agreements between equals here) against the other, with no allowances made for unforseen situations, or minor infractions. DRM is also unresponsive to the law that it is, ultimately, subordinate to. It is impossible for DRM to exist and permit fair use, since any use is capable of being a fair use, but the circumstances that cause it to be are often outside of what a dumb computer can be aware of. Hell, even smart judges can disagree as to what’s lawful and what isn’t; how could DRM ever match that? Will the DRM magically evaporate when the copyright term is done? What if the term changes? How will the DRM know?

    DRM also tends to enable unconscionable contracts, forms of duress against a party, enforcement of contracts that are rightfully void or voidable, etc. It tends to not allow for differences between jurisdictions — look at countries where DVD region coding is illegal, or particular DRM schemes run afoul of anti-hacking laws. DRM “agreements” are virtually always adhesive, and adhesive contracts are usually breeding grounds for abuse right there. DRM is antidemocratic in that they’re private, and not especially subject to political checks. If music listeners don’t like DRM, they can’t vote Sony out of office. DRM can also conflict. In fact, given that the sky can be the limit, I think that it is prone to do so very rapidly and probably already is. Consider DVD regions — a drive can only be one region at a time, and can’t be changed much. If you want to watch DVDs from more than one region, you’re forced to get multiple players. Now imagine that you need to have two cars in order to go to two different gas stations because of conflicting agreements.

    I have no confidence that these deep flaws in DRM are in any respect fixable.

    Thus, I suggest a system of laws that serve the public interest, permit minor deviation through imperfect enforcement, are subject to human involvement and interpretation at every step, are judicially and politically reviewable, which include consumer protections, and which provide a good set of defaults that everyone can live with in the course of their normal behavior. While some exceptions will need to be made — i.e. copyright licensing — the need for such exceptions should be rare to begin with, and precautions should be taken so that these deviations don’t turn out to be abuses. This may include discouraging or limiting some of them.

    For example, I’d discourage DRM by making DRM’ed works public domain. And I’d limit abuses of DRM through the use of some consumer protection laws (e.g. contracts that have certain provisions are void; parties that offered them are fined and enjoined).

    While this might limit your opportunities to put people in cages because you do not trust them, and might limit your control over a work to what you had the right to as determined by a court of law, it does tend to result in people having and preserving significant freedom and actually trusting one another.

    There is no ambiguity

    And that’s one of your big mistakes. Robots don’t like ambiguity. People do very well with it, on the other hand. I don’t aim to be a robot, living in a robot society. I certainly don’t intend to help it come about. Whether one is imprisoned in a robot world by the AA’s or imprisons oneself, it’s a disgusting idea.

    If you want to consider me a “serf or peasant” then it might be appropriate. You see, I don’t just find your half-baked crap revolting, I find it something to revolt against — and that’s what the serfs did.

  • poptones

    I’m at the library now, gobbling up gigabytes of “stock art” from prelinger so I’m going to take the easy way out and address only one of my favorite parts of your socialist rant… the bit about the replicator.

    I love when people talk about food replicators. It’s almost as easy a target as comparing stolen fords to stolen songs…

    Scarcity for its own sake is a bad thing.

    Scarcity is rarely “for its own sake.” Even if I am inventing an imaginary world where there is no evil and everyone drinks honey from golden cups, introducing scarcity would not be “for its own sake” simply because such a story would be endlessly boring without confict.

    “Space is big.” But even in space there is scarcity: its vastness creates this scarcity. I cannot get in my car and drive to the moon.

    Imagine that someone invented a replicator, like from Star Trek, but which only worked for food.

    Only works for food? Why? If it works for food it should work for any organic matter. As a result it should be entirelyt possible to replicate gasoline and motor oil. If I can replicate vegetable oil I can power a car.

    Oooh. Now I can convert any energy source available to me into oil that I can use to power my collection of vintage automobiles. Screw the Hummer – I can drive a freakin’ M1 Abrams to work every day because I have an essentially unlimited supply of energy available for it.

    Think of the greenhouse gasses! Joy and halleluah we could incinerate this world under a brown cloud in asingle generation!

    OK, so we establish laws. But they don’t matter because few people even care to drive old vehicles – better to just get where we’re going and enjoy the time we have. OK fine, let’s forget about the oil business…

    Let’s talk about food. With an essrentially unlimited supply of food, what happens to the earth’s population? You think Ten Billion is a lot? When Millions are spared death each day how quickly do you think our population would grow? Natural selection would essentially cease to exist in the human realm. At the very least average age of our poppopulation would increase by years, probably even decades.

    Wonderful. We’ve solved the scarcity problem with food.. now where do all those people sleep? Oops, it doesn’t matter – because we don’t have an infinite supply of energy. And only those in the most developed countries actually have access to those expensive food replicators. The “civilized” portion of the world is, of course, working on a plan to send food replicators to the starving people.. but everything has to come in due time, of course.

    So we haven’t really solved anything – we’ve just created a new system where the “haves” enjoy EVEN MORE CONTROL over the have-nots. Even if we give all the have-nots replicator appliances they have to get energy in order to do their job. Oops, looks like the energy companies win again.

    OK, let’s give them all free energy. Here you go people, all the enregy you need to supply your replicators and free replicators for everyone!

    Now we’re back at the land use problem.

    Except we’re not. Take any thermodynamics classes? Maybe you’ve studied the global warming issue – lots of socialist hippy freaky types have studied that so I’m guesing you’re aware that most consider our problems now to be due in large part to all this “dead” energy we’re moving from the inside of our planet to the outside. All those “fossil fuels” linger in the atmosphere and cause the planet to heat up.

    But it’s not just the gasses. Our planet needs most of those gasses at their present levels in order to sustain life. And even without those fossil fuels those gasses trap “energy” in a cloud around or planet that sustains this life as we know it.

    So now that everyone has an essentially infinite supply of energy, what happens? More energy is dissipated into our atmosphere, and even with no new carbon fuels the temperature still rises. With an “infinite” supply of energy there are no bounds to the damage we may inflict upon ourselves. And because there are so many more of us now and we all have “unlimited” energy and food, it’s all that much harder to enforce any regulations.

    We do not live in an “infinite” universe on an “infinite” planet. Scarcity of resources is not only inevitable, scarcity is what allows us to exist. Scarcity and competition for resources are what sustains life itself.

    That’s not greed and it’s not capitalism. You could make everyone in your imaginary nirvana socialists or marxists or libertarians.. they’d still end up dead, dead, dead.

  • poptones

    One more niggle…

    What I am adamantly against would be denying copyright based on the content or viewpoint of a work, where those terms are rooted in First Amendment jurisprudence. Pornographic works, works critical of the government, etc. should all be just as copyrightable as religious texts or pro-government pamphlets.

    Unless, by your argument, they’re encrypted.

    As soon as you change the rules for encrypted content, you have opened the door to tyrants.. you have embraced censorship.

    Worse, you have done so for the very reasons you ridiculed my notions of liberty: in a world where information flows like water you have embraced censorship for completely arbritrary reasons. You are exerting coercion upon a society of individuals, stripped them of rights to ownership of their time and labor and person – ultimately you have stripped them of precious incentive to convert that tidal wave of information into actual knowledge.

    It’s pretty clear from your arguments you do not realize that difference between information and knowledge… not in the least.

  • three blind mice

    We do not live in an “infinite” universe on an “infinite” planet. Scarcity of resources is not only inevitable, scarcity is what allows us to exist. Scarcity and competition for resources are what sustains life itself.

    poptones what ARE you going on about? we had a nice thread going here about the google cache and you totally derailed it.

    your observations about scarcity appear equally off track.

    it seems to us mice that the space of intangible things created by man – inventions, books, songs and artistic expressions – is infinite. until the last book has been written and the last painting made, the space of accumulated creativity only gets bigger.

    intellectual property laws introduce artificial scarcity into this space in order that there should be economic incentives to encourage continued growth and expansion of the things made by man that fill this space. this concept arises from the liberal economic traditions that form the basis of modern western democracies. the same “framers” who couldn’t agree to add “freedom of speech” to the U.S. constitution, had little trouble codifying intellectual property protection into the original text. one might say (as all three of us do) that intellectual property laws are more important to freedom than right of assembly, or the right of a free press, or due process, or any of the other amendments added to the U.S. constitution in afterthought.

    getting back to the concept of scarcity, it is bizarre, really, the commons-ists are comfortable with the idea of real property ownership – a fixed and limited and perhaps even scarce resource – yet cringe at the thought that someone might exclusively control a tiny portion of a rapidly expanding universe for a limited period of time.

    it would seem that greed and impatience are powerful incentives for more than just corporations.

  • poptones

    Where did you get this notion that “the framers” didn’t think to mention freedom of speech? the first ammendment to the constitution states this most explicitly – the rights to a free press (that even includes one comprised of blogs) shall not be abridged. And that ammendment merely reinforces one of the many rights originally granted by a constitution that specifies a limited national government wherein those things which it is not given explicit control are left to the states, the couties, the cities and the citizens to decide for themselves.

    Where you got the notion that ammendment was an afterthought – a “patch” to a buggy constitution 0.9 beta, is beyond me. Perhaps you know of some citable references? I would welcome them.

    And the matter of the google cache has everything to do with this. Fact is it also has everything to do with DRM, although this point was completely overlooked in the professor’s presentation.

    Copyright does not protect ideas, it protects specific implimentations of them. And the niche carved out by “fair use” has forever been at the mercy of the market – before there was a large market for player pianos there was no market for player piano rolls, and manufacturers of player pianos had no incentive to standardize upon one empbodiment simply because the player piano manufacturer also madew the player piano rolls – and this worked well for them since it assured them every player piano sold would also provide a good revenue from the player piano rolls.

    But as the market for player pianos grew until it seemed there would be no elephants left in africa or india to supply icvory for their keys, so too grew the market for player piano rolls. Publishers wanted their cut – and rightfully so, even if their declarations of this being a matter in preserving the songwriter’s interests may have been as transparent then as now.

    Player piano makers were not simply transforming works, they were republishing them: They were violating IP laws.

    This is exactly what google is doing with the books. Now, I honestly do believe the google book idea is tremendously valuable – but the way they are going about creating it is not the only way to do so. Google as it exists today “publishes” only information that others directly contrbute of their free will – newsgroup articles, videos, chat content, database content, and even web pages. What google proposes is NOT simply to catalog information, but to – of necessity – republish that work in the process. They simply have to republish it – to convert the paper books to “ebooks” – in order to accomplish this task… just as mp3.com had to republish madonna into an online form in order to create their “music locker” service.

    And that music locker service, in spite of having what amounted to a token security system, directly facilitated piracy of those publisher’s works and on a pretty massive scale. I know this because I myself had one of those lockers and used ti to “trade” with others. I know from experience how easy it is to build a huge collection of music you could then simply “give” to someone else in exchange for whatever you agreed upon -and then go create another locker and do it again.

    MP3.com created a fiat bank wherein madonna and metallica were the currency. Now those same publishers see google generously offering to do this yet again with their print works and they are justifiably nervous at the proposition because no one has yet demonstrated any meaningful security – no one has assured them their works willl not be used in ways which are “unfair.”

  • poptones

    it seems to us mice that the space of intangible things created by man – inventions, books, songs and artistic expressions – is infinite. until the last book has been written and the last painting made, the space of accumulated creativity only gets bigger.

    That space is not infinite: it is restricted by the number of people to create the works and the number of people to see them.

    Does a tree make a noise if no one hears it?

    It doesn’t matter to the tree…

    But it matters to people who create. If they don’t want to to be heard copyright protects them from being published against their will (if anais Nin had been required to register all her works in order to protect them from publication against her will, those memoirs of a 9 and 10 and 11 year old girl would have been fair game to anyone who could obtain access to them, playing upon her fame and her name against her will).

    The space to house the works of creators may be nearly infinite, but the creators themselves are not. No matter how it may seem from my lengthy tirades in this space the good professor has so graciously provided, I cannot produce an infinite amount of original work. My work is my own and its ‘value” is up to the individual to ascribe.

    And my work is an embodiment of myself. It is the product of both my time now at the keyboard and the lifetime spent leading up to this moment. Are my ideas 100% original? In an informational context they are not – they are based upon other ideas that have been shared. But in the context of knowledge they are ine alone; the expression of my words is shaped by the synapses and chemicals of my brain, a brain that is (you are sure to agree) blessedly “unique.”

    if I am granted full monopoly on my expressions and I refuse to allow them to be repurposed as such does that cost society? Even if I am a renowned leader and I compose and deliver a speech that is remembered throughout history, and my heirs are granted rights to its reuse, is society harmed?

    there is nothing to prevent you from expressing the information contained in my expressed knowledge without my consent. You are free to embellish and declare and denoumet your way through anything I have said in any way that doesn’t wholly reconstitute my work. If, for all your efforts, you still cannot convey the information I have conveyed in as compelling a fashion – if “you have a dream” that still does not move the people of your time with the same ferocity as my “dream,” then my knowledge still has value to that society – more value, in this case, than your knowledge – and I (or my heirs) still deserve recognition for that fact and, if we should decide it, renumeration for that very finite and inherently unique product of work.

  • http://www.commonsmusic.com Commons Music

    poptones:

    On a side note from this discussion, I don’t know why you’d lump libertarians in with socialists and marxists. The two groups couldn’t be more different from one another.

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

    Copyright does not protect ideas, it protects specific implimentations of them.

    Copyright does not protect specific implementations of ideas, it protects the interests of authors and publishers. Ideas and their implementations are best protected when they can roam and interact freely.

  • http://www.popularo.com Popularo

    I’ve been watching the legal issues around search engine caching for years. It’s a GoodThing(TM) that the courts are leaning towards fair use. Bravo!

  • poptones

    I don’t know why you’d lump libertarians in with socialists and marxists. The two groups couldn’t be more different from one another.

    that was the point, CM. read it again.

    BTW I apologize for my rambling tone of late. I’ve been working on other things and sometimes it seems my fingers cannot move fast enough to get things out. And obviously, I do not use the preview…

  • poptones

    Copyright does not protect specific implementations of ideas, it protects the interests of authors and publishers.

    I am an author and publisher. You are an author and publisher. Everyone on this planet equipped with a computer is author and publisher.

    We should all have rights to our works. Copyright is what enforces our rights. Anyone at any time is free to give away those rights when and where they choose simply by attaching license. Arguing we should all be forced to give up rights to our work simply because it offends some narrow ideology is tyranny.

    Ideas and their implementations are best protected when they can roam and interact freely.

    Copyright does not prevent the passing of ideas. So far as implimentations, that is knowledge. and my knowledge is mine alone and it is coercive to demand I give up my knowledge to you in exchange for… what?

    If I want to write a math book I have to be able to eat while I am doing it. If I have more knowledge about math than you then I deserve more than you to be compensated for my work – and it is my work and therefore my right to demand compensation as I see fit. It is your right to turn away, find someone else’s math book, or write your own in my stead. Copyright doesn’t prevent anyone from being able to learn math, only from being able to learn math from me without agreeing to my terms. It is not your right, or that of a free society, to dictate to me those terms.

    It is impossible (and I would argue immoral) to deny anyone the right to access information. Knowledge is not merely information, it is the embodiment of it. Refusing creators their rights regarding that embodiment only ensures fewer will take the time to bottle this ever rising tide of “information” into actual, usable, knowledge… thus further ensuring an ever widening gap between those with the skills and facilities to do this on their own, and those who do not. Rather than becoming a new democratizing force in the world this “information culture” will simply better ensure the security of the “information elite” – the governments, banks, and long established publishing oligarchy

  • ACS

    To Josh Stratton –

    I don’t really see how you can draw a distinction between a web search and a book search

    Actually I think the judgement in Fields is a rather good example of such a distinction. As Lessig points out, the fact that someone has already released the information to the public in the form of a web page gives an implied licence to cache that material. A book does not have a similar implied licence and therein lies the distinction.

    The logic behind the statement “if you only cache the first chapter, a search for things in later chapters would come up empty; if you cache only the first paragraph of a web page, a search for things further down in the page would come up empty” appears to me to be fundamentally flawed. Just because a document that is made publicly available without reward may be cached it does not follow that a document that must be purchased with licence can similarily be cached. This is the essence of Lessig’s initial commentary.

    I do appreciate your reasons for fair use being applied in the circumstances If you’re looking for a book based on the name of a character or a half-remembered passage within it, etc., the card catalogue is not useful due to its brevity. I completely agree with this statement in support of searching a stored document, however, the point of this argument is to resolve whether the inital digitalisation of the work – that is – the reproduction of the work into the Google Print database is illegal without licence from the author.

    ACS

    PS – I am aware of de minimus non curat lex principle and in particular the Exxon case. In fact I agree that Google print can display the title, author and page number. I even agree that a short portion may be displayed. It is more the copying into the database that I am concerned with.

    I also posed the questions in my initial post, in particular, ‘how much of the book will be displayed’.

  • ACS

    Josh Stratton –

    I don’t really see how you can draw a distinction between a web search and a book search

    Actually I think the judgement in Fields is a rather good example of such a distinction. As Lessig points out, the fact that someone has already released the information to the public in the form of a web page gives an implied licence to cache that material. A book does not have a similar implied licence and therein lies the distinction.

    The logic behind the statement “if you only cache the first chapter, a search for things in later chapters would come up empty; if you cache only the first paragraph of a web page, a search for things further down in the page would come up empty” appears to me to be fundamentally flawed. Just because a document that is made publicly available without reward may be cached it does not follow that a document that must be purchased with licence can similarily be cached. This is the essence of Lessig’s initial commentary.

    I do appreciate your reasons for fair use being applied in the circumstances If you’re looking for a book based on the name of a character or a half-remembered passage within it, etc., the card catalogue is not useful due to its brevity. I completely agree with this statement in support of searching a stored document, however, the point of this argument is to resolve whether the inital digitalisation of the work – that is – the reproduction of the work into the Google Print database is illegal without licence from the author.

    ACS

    PS – I am aware of de minimus non curat lex principle and in particular the Exxon case. In fact I agree that Google print can display the title, author and page number. I even agree that a short portion may be displayed. It is more the copying into the database that I am concerned with.

  • three blind mice

    Where did you get this notion that “the framers” didn’t think to mention freedom of speech?

    that would be from american history, poptones. if memory serves us, bills of rights, similar to the original ten amendments attached to the u.s. constitution, existed in eight or nine states that formed the united states.

    the “framers” – jefferson, franklin, washington, et al. – were well aware of of the desire from some states for broad assertions of inalienable “rights” of speech, religion, etc. these issues were debated – quite forcefully by james madison of virginia – in philadelphia in 1787. the framers could not achieve concensus on this and ultimately left out the enumeration of “rights” from the original constitution sent out for ratification. this, it would seem, is historical fact evident from the text of the original document.

    here is perhaps a suitable citable reference.

    our point is that the “framers” did achieve concensus on article 1, section 8 of the U.S. constitution that provides for intellectual property laws. this too, would seem to be historical fact as evident from the original document.

    (see suitable citable reference above)

    so it would seem to us that the concensus opinion of the framers was that intellectual property laws were considered important enough to include in the U.S. constituton and that the items included in the bill of rights (adopted one year later in 1788) were not. this is not to say that a bill of rights is a bad idea, or that these do not have the same level of importance today having been formally ratified, or that they should have been omitted from the original, but it seems clear that to the “framers”, intellecual property laws were deemed pretty damned important to freedom (which of course was what the constitution was designed to protect.)

    *mice recover from derail. drag selves back ínto thread.”

    we don’t agree that this is a DRM issue to the google cache. the assumption is that the google-bot is not bypassing any access or content controls. anyone who publishes a web page on the world wide web knows how it works. allowing other computers and users to make cache copies is not a “fair use” or an “implied” license, but the intended license chosen by the copyright owner or publisher. (google’s linking of a URL to their cache and making it available for others is a bit dodgy, but the making of the cache copy by the googlebot seems to us – as it did to the court and parties involved – not an issue.)

    we do agree that a DRM solution would make this no longer an issue. next to a written constitution and a representative democracy, DRM is the third pillar of freedom.

    Copyright does not protect specific implementations of ideas, it protects the interests of authors and publishers.

    copyright protects the interests of authors and publishers by protecting specific expressions of ideas. you may not like how it is used, but please do not mischaracterize it.

    Ideas and their implementations are best protected when they can roam and interact freely.

    the commons-ists manifesto. this is the sort of squishy, kum-bah-yah logic that makes us mice shake our heads in dispair.

  • poptones

    we don’t agree that this is a DRM issue to the google cache. the assumption is that the google-bot is not bypassing any access or content controls. anyone who publishes a web page on the world wide web knows how it works.

    Of course, mice, and that is the point. Because the web itself has evolved a limited means of DRM: passwords and robots.txt. If I have a web page wherein I offer artwork to visitors to my site but I do not want that artwork offered via deep links, I need only include those pages in the robots.txt file. And if I want to charge for those images, I can make membership mandatory and the crawlers will have no access even if they are impolite and ignore my robots.txt file.

    And, in this way, it seems to me pretty clearly evident this is the main of the objections being raised by publishers. If I offer a website wherein the goal is to attract visitors I can easily, as part of the very design of that website, specify what may be linked by those machines that index websites.

    But publishers do not yet have the material online that google would be “linking” in this case. And one of the main reasons – most likely the vry only reason – is they do not yet have in place a means of robust DRM. For if they DID have in place a means of robust DRM then the works they offered, online, could contain within them this same sort of “robots.txt functionality.”

    Without the infrastructure in place to make suitable online use of these works, google threatens to dilute any future plans these publishers may have to offer works online once a suitable system of DRM is in place. Thus, in that regard, it fails to meet at least one mettle of “fair use.”

    In the presentation lessig talks at some length about those works which are “in copyright but out of print.” he talks of these works as if they are somehow “lost in the ether” and how many may never be seen unless google be granted this “fair use” because there is no one to make them otherwise available.

    But again, this is a pretty big fish (herring, red). For example, there are many Disney films which are also “out of print” – one is presently being offered, amid much hype, “for only 70 days” – after that the DVDs go back in the vault until Disney feels like offering them again. Thus, keeping works “out of print” is one way the rights holder adds value to their work by deliberately restricting the supply into the market of that work… they create “artifical scarcity of production.”

    At present, book publishers have no robust means of securing their rights in the online realm. And the “barrier to entry” is, in this case, the greatest of all for written works – I cannot put a book in a drawer and let it “cook” for ten minutes and create a completely accurate, word for word copy of that book as I can with films and music.

    Books have a higher barrier to entry. Likewise, I cannot publish a book so easily as I can a CD or DVD – books, in the classical context, are much more complex to manufacture. Therefore if I am a rights holder but I do not at present control a tool of production (or have the money to invest in supplies) then I am inhibited from “sharing” that knowledge which I own.

    Because the production costs are so very low in the electronic realm, however, it would be entirely cost effective (as well as potentially profitable) for me to make available my knowledge via the electronic realm. Without a robust means of protecting my rights within that realm, however, I have pretty much zero incentive to do so – transcribing the book electronically and offering it for download would simply dilute whatever future value the work might have had; I would be shooting myself in the foot without a bandage.

    In this case again, the absence of robust DRM is inhibiting the sharing of knowledge.

    So, it is not these works are “lost” into some intellectual black hole – they are simply “in limbo” because their guardian has deemed them too vulnerable at this point to venture into the world outside brick and mortar libraries (where they are still available, BTW).

    I would like to point out that here again copyright is working as intended – because copyright does not protect the information bound in these works, only the “distillation of knowledge” they represent. The fact they are out of print might very well reflect their social (in)significance, thus within the realm of “social value” they represent a far tinier portion of our culture than their numbers reflect on that graph. But in either case there is nothing to prevent me, you, or anyone from reading these works and then refining them into new expressions of knowledge – our expressions of knowledge.

    And this is, to me the single greatest hypocrisy of those who deride the publishing establishment for “not participating” in this “new culture.” Computers have put the means of production and creation in the hands of the proletariat, yet this seems to be “too hard” for most who would rather simply ignore the tools of creativity and set those tools of production to work usurping the rights of us all.

    This case is completely about DRM. Without DRM the publishers have no incentive to participate in google’s plan. If google truly wants to be a friend to us all they should put their good name to work educating the online proletariat to the merits of DRM and engaging publishers of the old and new alike in a dialog that would bring about a system of rights management that would serve us all, equally and fairly.

    We, the online proletariat, now control the tools of production and publication. But until our tools also give us reasonable control over the channels of commerce we remain squatters outside the gates, allowed to profit from our labors only with the blessing of the Lords and King.

  • three blind mice

    This case is completely about DRM. Without DRM the publishers have no incentive to participate in google’s plan.

    poptones, we are probably on the same page here, but you seem to be a chapter or two ahead.

    this case is about the google cache – not the proposed google book search. the google cache quite literally caches a copy of a webpage and offers links to this cache. it has nothing to do with printed material and it seems as though you are confusing the two.

    ACS highlighted the distinction quite nicely:

    Actually I think the judgement in Fields is a rather good example of such a distinction. As Lessig points out, the fact that someone has already released the information to the public in the form of a web page gives an implied licence to cache that material. A book does not have a similar implied licence and therein lies the distinction.

    when a web page is pubished without any metatags or content controls (e.g., DRM) , we argue that is is not an implied license, but in fact the intended license that users are expected to make cache copies.

    the way google subsequently uses the cache is, again, a bit dodgy and we have to think about this, but there seems to be no dispute that making a cache copy is in any way a vilolation of copyright.

    great thread everyone! well worth the time we’ve spent on it.

  • John S.

    Thanks for pulling this back on to the case, mice. I think I disagree with you. Here’s where and why:

    “we argue that is is not an implied license, but in fact the intended license that users are expected to make cache copies”

    I think there are only really express and implied licenses in the law – do you mean to suggest a new type of license, the “intended” license? Do you intend this to be a subspecies?

    The opinion is very interesting on this point. They rely on the admitted fact that plaintiff Field KNEW that using robots.txt and/or metatags would have kept googebot out and/or prevented caching. The knowledge requirement works fine when the creator admits that he knows of these mechanisms, but fails when (as I suspect to usually be the case) when people putting things online DON’T know about how to instruct spiders.

    But there’s is something else the court sneaks in. Another fact in evidence in the case is that the robots/metatags methods are widely publicized and well known. This is where I see a door opening.

    If the actual knowledge requirement needed to create an implied license can be replaced by constructive notice when an opt-out procedure is very well known, then this is a way we can give opt-out, non-DRM measures like robots.txt and metatags legal force… if such methods are “widely known” then we might impute knowledge to those who fail to use it.

    Of course, the counterargument is that this penalizes those who know the least.

    “there seems to be no dispute that making a cache copy is in any way a violation of copyright.”

    I agree that this issue is not “in dispute” in the case. But that doesn’t imply it cannot be an issue generally. It only means the plaintiff didn’t complain about it. Maybe this was strategic – he actually DID have a robots file that allowed all search engines. Perhaps he thought if he alleged that the original spider crawl was infringing, he’d more clearly lose to google’s implied license defense.

    It’s important to note what happened here with the robots/metatags – he admitted to knowing HOW to do something, and then chose not to do it. The enormous barrier is that nobody knows this until he gives testimony and admits it. This cannot be generalized to the web since almost always you know no idea what the party creating a website knows. This is why the constructive notice idea I mentioned above seems like something worth discussing.

    Thoughts, anyone?

  • poptones

    Robots.txt and metatags aren’t even generic anymore; yahoo and google and any other reputable company identify themselves in their crawler’s header strings. Just as it is possible to have different “pages” for internet explorer and firefox and netscape browsers, one could even use the robots.txt file to steer yahoo toward one version of the site and google to another, adjusting content as needed in order to fulfill agreements or just to “tune” metadata so as to score better with each.

    Setting up a commercial web site without knowing about the operation of metatags and robots.txt files would, in this day, be rather like opening a gas station without knowing how to properly check the oil in a car.

  • poptones

    BTW, robots.txt IS DRM, it is just “weak” DRM. Robots.txt has become widely accepted within the industry and crawlers and other automated tools that neglect to honor its use are often banned.

    If I leave a note at the register saying “gone to lunch, please leave your money on the counter” and you instead waltz out the door because no one is around to catch you, are you not still stealing? Isn’t that a violation of some sort of implied social contract? Have you, in that act, not deprived me of a bit of my rights?

  • John S.

    poptones – can you explain what you mean when you say crawlers that neglect to honor these standards are banned? You mean on a site-by-site basis, right? Does this mean an IP address is blocked, or that the site just blocks anything claling itself, eg, “googlebot” ?

    And as for whether or not it is DRM – I see your point about it being DRM in the sense it is digital, and is used to manage rights. But like you say, it’s a standard that parties can choose to follow or not (perhaps at their own risk of getting banned). Perhaps I should have put it this way – it is not a mechanism that the DMCA will make circumvention thereof illegal, since it’s voluntary.

    As for the lunch/register example: yes, of course it’s stealing. But I think you need to look at what the sign operates as. By DEFAULT (with no sign) you cannot steal from a store without breaking the law. I don’t think it’s implied social contract, but instead just plain old theft. The sign is just giving notice that you are not waiving legal rights you already have.

    On the other hand, with the web, what is the default if there is no robots file? Do you presume permission or lack of it for the site to be indexed?

  • poptones

    Perhaps I should have put it this way – it is not a mechanism that the DMCA will make circumvention thereof illegal, since it’s voluntary.

    That’s not entirely true. I’ve not yet heard of a case where someone was directly sued over an invasive robot, but there have been numerous applications of the DMCA to people who “hacked” websites by doing something as simple as hitting enter when prompted for a password. I’m not saying that’s just, but cases of this sort of thing are not at all hard to find – one I recall just quickly involved a newspaper site wherein someone discovered they had left a back door – probably discovered by shortening or altering a known good URL. When the person reported this vulnerability to the site admin, to thank him for his efforts they pressed charges against him for “hacking” their site.

    On the other hand, with the web, what is the default if there is no robots file? Do you presume permission or lack of it for the site to be indexed?

    Thankfully, at present I think the “accepted norm” is no robots.txt=crawl as you please and robots.txt=respect mah authoritah! Crawlers that don’t show this respect often end up banned via whatever means are required.

    Last year there was a well publicized (blogged) case wherein the archive.org wayback machine played party to a DMCA case in exactly this way. I’m not sure how it came out, but there was a lot of talk at the time about how robots.txt isn’t really a “technological countermeasure” under the DMCA because its use is allegedly voluntary (even though impolite robots are routinely banned by site operators and only certain “favored” bots that play by established rules allowed to crawl their site) and because it doesn’t really present any sort of obstacle or barrier to entry.

    However, if someone’s front door is ajar and you walk into their house without permission you can still be charged with trespass.

    Additionally, both the very malinged “broadcast flag” on digital tv and the decades-old “generation” and “copy allowed” bits employed by CD players perform essentially this very same function, they have been given force of law, and they do not in any other way “inhibit access” except by their mere presence. They do not enable an encryption “padlock” of any sort – they merely provide “information” it is now illegal to ignore.

    My bet is, if robots.txt files are now considered only a matter of proper etiquette, you can well expect robots.txt to eventually be given force of law – if precendent won’t do, then expect a congressional rider in the near future to patch that hole.

  • John S.

    Good comparison, to the broadcast flag being a mere bit, and not “protecting” anything in the strict sense of the word.

    But the broadcast flag fule made by the FCC was struck down, for some reason like lack of authority, right? Well, in any case – suppose that it becomes law. THAT’S where the force of law comes from in respecting the authoritah of the bit – the fact that there’s a law saying so. This is an interesting comparison though in terms of whether or not circumvention to ignore a bit.

    Something else to ponder: if robots.txt is legally enforceable, what about people.txt (supposing there was a comparable standard), whereby you could just “request” that certain people didn’t view your site? Eg, like on a political party’s website: [users: other_party_members; disallow: all]. Or a state’s webpage: [users: out of staters; disallow: all]

    I guess the question this goes to is as follows: If there’s an implied license for ANYONE to view things if you put them on the web, do we “discriminate” against robots just because of what they do? Or if there’s NOT an implied license for anyone to view things on the web, is the problem that site operators can start banning particular sets of individuals from sites at all significant?

  • poptones

    Something else to ponder: if robots.txt is legally enforceable, what about people.txt (supposing there was a comparable standard), whereby you could just “request” that certain people didn’t view your site?

    Umm… you mean like how I already can’t view Hustler.com, Penthouse.com, most web discussin boards, or most of the videos on itunes without first “becoming a member” or even paying for them?

    Again, I don’t see the “tyrany” there – we should have the right of free association. If there ever came to be a “people.txt” standard I would imagine it would be encumbent upon the tools used to verify themselves against it and “illegal” only for the user to directly circumvent it or for software makers to supply tools to the public that did so. It’s still a regulatory nightmare, and much easier I think for site operators to simply erect “members” pages… as we have now.

    do we “discriminate” against robots just because of what they do?

    Oh, I’ve seen YOUR kind before… you’re one of those weirdo cybernetics rights activists, huh? Like those freaks that broke into the Sony factory and set all those Aibos “free” upon the world only to have them die, cold and miserable, within hours as their batteries expired?

    Of course we “discriminate” – because robots are not people; they consume bandwidth like candy and they index sites and content and follow every link exposing potential security vulnerabilities and archiving content we may want to make only temporally available. There are all sorts of reasons to direct robots to certain pages and not others… that’s why the “standard” was established.

    BTW the “broadcast flag” was struck down only in the sense the FCC was told it could not act as dictator. Plans are still heading in that direction because, no matter what the EFF might think, it’s neither a new precedent or an unreasonable one and congress will surely give it force of law, if not this time then the next. However, the FCC should play no part in this as the FCC was not needed to enforce regulations regarding SCMS, the “CD generation and copy bits,” and they are not required here.

    Every regulation the entertainment industry uses to hamstring the public can be turned against it in political fashion. So long as the channels themselves remain (and are made to remain) neutral and open, “we” can compete.

  • Peter

    There’s been a lot of interesting back and forth on this thread. However, how many actually took the time to read the decision.

    Apparently, Mr. Fields set up his site precisely to trap Google and collect statuatory damages. He knew about, and consciously chose not to, incorporate the robots.txt and metadata to prevent indexing and caching.

    Some law professor (I forget who) mentioned a schmuck factor that plays a role in copyright cases. Mr. Fields had that factor count against him.

  • John S.

    Umm… you mean like how I already can’t view Hustler.com, Penthouse.com, most web discussin boards, or most of the videos on itunes without first “becoming a member” or even paying for them?

    That’s not what I mean. Those sites actually block you out; what I was getting at was if they merely requested that you not view thier sites, but left you technologically able to.

    Again, I don’t see the “tyrany” there – we should have the right of free association. If there ever came to be a “people.txt” standard I would imagine it would be encumbent upon the tools used to verify themselves against it and “illegal” only for the user to directly circumvent it or for software makers to supply tools to the public that did so. It’s still a regulatory nightmare, and much easier I think for site operators to simply erect “members” pages… as we have now.

    I didn’t suggest tyranny… I’m trying to work through ideas on how the law would work in the case that robots.txt is or is not given legal force. I’m not intending to make value judgments. It is a hard problem to balance personal rights with the inhernet openness of the web. I agree, freedom of association is important. It seems only that you are advocating that people have their wishes and rights respected with respect to how their works are used. That’s not unreasonable at all. That’s what copyright law provides, for the most part.

    Suppose someone ran a website where there was no robots file or any other indication restricting use of any kind, and this person does not know anything about robots, metatags, or anything else relevant (UNLIKE Fields). Suppose this person sued you for viewing (and therefore copying) his site. Crazy right? What would your defense be? I (and probably most would) agree that you shouldn’t lose this case – but I think that given the way the court in this Google/Fields case interpreted implied license, it would be a stretch to use that as a defense.

    Like Peter points out, this guy seemed like he was shooting for cash here, and admitted he knew the ways to control robot behavior and didn’t use them – and therefore lost on the implied license defense. The implication is that the implied license would only be granted where the site owner knew (or maybe should have known, unclear) of those mechanisms. So based on this, it looks like absent any robots.txt/metatgs, the court STILL needs more to find an implied license. Why would the law operate differently on robots and people in this example, especially if the site owner has no clue what a robot is?

    do we “discriminate” against robots just because of what they do? Oh, I’ve seen YOUR kind before… you’re one of those weirdo cybernetics rights activists, huh? Like those freaks that broke into the Sony factory and set all those Aibos “free” upon the world only to have them die, cold and miserable, within hours as their batteries expired?

    That’s pretty funny, did that really happen? You read negative connotation into “discriminate” – I didn’t intend any. Discrimination is fine against robots if it’s justified.

  • ACS

    John S and Peter

    Apparently, Mr. Fields set up his site precisely to trap Google and collect statuatory damages. He knew about, and consciously chose not to, incorporate the robots.txt and metadata to prevent indexing and caching.

    There may be a broader issue of implied licence here. The fact that Fields did know the Google robot would search and cache his site is probably evidence of such a licence. But would the situation be any different if a site was not geared in this respect.

    It may be arguable that the mere act of communicating copyright material to the public across a technological medium would induce a court to consider that copying (or caching) is authorised as it is the consequence of viewing the site.

    The difficulty in that argument is whether a robot or spider has the same rights to cache without authorisation. THis is all tied up in the definition of communication to the public pursuant to the Copyright legislation. IE – Does an exercise of the right to communicate copyright material to the public include a composite right to collect communicated material from the author by technological means??

    Is the licence implied because the site owner communicates the material to the public or because it is a technological consequence of reading a site?

    Please comment.

    Poptones-

    do we “discriminate” against robots just because of what they do?

    Oh, I’ve seen YOUR kind before… you’re one of those weirdo cybernetics rights activists, huh? Like those freaks that broke into the Sony factory

    These people may seem like freaks to you but there is a very interesting question regarding the ownership of copyright material produced by artificial intelligence systems brewing. One of the conclusions drawn by some lawyers is that AI produced material cannot belong to the owner of the AI because it is not his/her original creation. Therefore the material is treated as unowned or not copyright. In order to set this right some advocates argue that AI is an employee and therefore the property of the AI owner – perhaps robots and AI will be given limited human rights in order to protect the property that they create??

  • poptones

    These people may seem like freaks to you but there is a very interesting question regarding the ownership of copyright material

    Dude… it was a joke. Come on… aibos roaming the streets?

    Sheesh.

  • poptones

    The difficulty in that argument is whether a robot or spider has the same rights to cache without authorisation.

    Ridiculous. If you post the material and you want bots to stay away you include robots.txt. To argue whether or not they have the “right” to duplicate the content is simply ridiculous – it’s inherent to the nature of digital communications. It’s like arguing whether or not the swimming pool is at fault for getting swimmers wet.

  • John S.

    Maybe asking if a robot has the same right is the wrong question – maybe it should be: if it’s not illegal for a person, why would it be illegal for a robot?

    I think the question of what legal force, if any, is given to robots.txt needs answering first.

    and ridiculous as this stuff seems, I don’t see how to avoid having to figure it out given the current copyright laws and cases like MAI Systems (RAM copies count).

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