Content is a $100Bn industry. Technology is 5-6x bigger, but the tech companies trying to disrupt content are an insignificant fraction of that industry.
Meanwhile, set aside whether you believe in the reforms proposed in the Khanna memo --- reducing statutory damages, increasing cost of enforcement, reducing copyright terms. Ask instead, "was this a politically effective policy memo?" Were its goals in the 113th congress realistic? Were its arguments persuasive? Something like 35% of all congresspeople are lawyers, and this memo starts out with a highly dubious argument about the meaning of the copyright clause.
It seems to me (and I am prepared to hear smart people tell me how wrong I am about this) that a reasonable short-term goal would have been to reduce the term of copyright, ratcheting it back to where it was, say, before Sonny Bono. Instead, this "RSC" memo proposed beyond that a gift basket of what seem like mostly not-useful policy trinkets for Redditors: expanded fair use for DJ culture (really? spend political capital to modify regulations on a $100bn industry for... DJs?), lower statutory caps for damages (the MPAA and RIAA already sue for a tiny fraction of the likely liability for many infringers), and punishing false copyright claims (the claims studios take to court are overwhelmingly not false; penalizing bogus DMCA takedowns wouldn't move the dials at all).
The real copyright reform is probably something like reduced term and compulsory licensing. What was the value to the RSC of trolling the Content industry for reforms that had no chance of happening, that wouldn't have actually kept people from being bankrupted by lawsuits, that wouldn't make it easier to launch tech companies, and that at the same time manage to almost uniformly enrage rightsholders?
Was this memo really "shockingly sensible"? A lot of smart people say it was. But I wonder whether they're more shocked that any conversation could have happened at all, and not really looking closely at the content of the memo itself.
Your points are valid, but the important things to consider are framing and negotiation. This was Obama's problem for the past 4 years.
If you initially propose something "middle of the road," you get negotiated to 3/4 down the road. If you propose something idealistic and way far to one side, then you give the opposition things to negotiate away. Then they feel like they win, and in reality you come up with something much more moderate and "middle of the road" than you would have otherwise.
I wish I could find the article, but I once read a story about a web designer who knew his clients ALWAYS had to have some feedback. "I love it, but can you change the color of this" or "make this bigger." No matter how perfect the design was, they HAD to give feedback to feel like they were doing a good job.
So the designer would make a beautiful website, and then put a really ugly snowman in the background. Then the clients would say "I love it!" But can you remove the snowman?"
Say you want reduced copyright terms, reduced damages, and expanded fair use for DJs. Then give up the DJs.
You know you have to give them something, so add things in you're okay giving up.
Now. Why is the first point about the size of the industry relevant? Unless you're talking about their ability to bribe...I'm sorry..."lobby" Congress to pass the laws they like? That shouldn't happen anyway, regardless of their size. Laws should be passed on common sense and what's good for the people at large, not based on how big is your bank account.
What is dubious about his argument about copyright? First off, copyright is not "property", and shouldn't be treated as property. It's more like a permit. The government allows you to use a certain idea for a "limited time period" as it says in the Constitution. Unfortunately, because of the bribing..sorry, again, I meant lobbying...the "limited time period" turned from 14 years to almost 10x more. That doesn't sound limited at all to me. Copyright was meant as an "incentive" system - not as a welfare system.
Ideas can and should be reused. Whoever gets something copyright, most definitely got "inspired" or copied parts of someone else' ideas. That's why there isn't really something like "intellectual property", because nobody owns an idea 100%. And since you used someone else' ideas, you have to get paid for whatever you added only for a limited period of time, and then allow others to benefit from it, too, and expand the public knowledge. The whole point of the copyright system was to benefit the "public". It doesn't say "the creators" in the Constitution.
The fact that you dismiss DJing and remixing so easily shows that you have zero understanding about why fair use even exists in the first place. I suggest going through these, and hopefully it will change your mind:
I don't "sound like" a copyright hawk. I am one. I am way, way to the right of HN on copyright issues.
So, your comment actually doesn't have much to do with mine. I am well aware that HN is full of copyright doves, and I respect that position (I feel like I'm going out of my way to be respectful of them). All your comment says is, "there's the opposite side of this copyright issue". Which is about as banal as telling me that water is wet.
From my perspective, tptacek was not trying to reignite the Great Internet Copyright Argument for the millionth time, and instead was making a point about what was politically actionable today.
mtgx is coming from a fantasy/idealistic world position and tptacek is coming from a position entrenched in reality.
I mean look at what mtgx said:
"Now. Why is the first point about the size of the industry relevant? Unless you're talking about their ability to bribe...I'm sorry..."lobby" Congress to pass the laws they like? That shouldn't happen anyway, regardless of their size. Laws should be passed on common sense and what's good for the people at large, not based on how big is your bank account."
This is an absurd response to what tptacek said. If mtgx wants to advocate some kind of political revolution that is fine, but it is not an appropriate response to what tptacek is saying about Republicans spending political capital to effect change.
After watching (and thoroughly enjoying) mtgx's second linked video [1] it's become a little more complicated to discern the left or the right of copyright. I think the talk's final point of speaking of "values" is very pertinent and in a way relevant to the way this conversation branch progressed.
From your quote about DJs your copyright values seem to be at the opposite side of openness (whatever the antonym of openness is), but having been reading and enjoying your comments for a while I suspect that comment might just be misguiding. I think I'd like to read more about what your values on copyright are.
Ideologue: One who can't elaborate their position in response to a counter argument and just repeats scripted talking points again and again until the other side gets sick of replying to someone so dull.
If I was sure who you were referring to I'd probably be using the arrows, but since I can't I'll just say that mtgox really did not address tptacek's points. Or at least not the main thrust of them which was that this memo was completely unsuited to the RSC at this time.
As a bystander to your and tptacek's debate, I'd like to point out that it seems you didn't really address tptacek's main point: this bill was badly written and dealt with minor issues which matter less, and wasn't worth spending political capital on.
It's very nice that you dragged this into HN's millionth debate on whether copyright is property or not (seriously, don't people ever get tired of the same rehashed arguments?). But this has nothing to do with tpacek's point. At least, that's how it looks to me.
> (seriously, don't people ever get tired of the same rehashed arguments?)
Is an argument only valid when it's fresh? Is e no longer equal to mc^2 because so many people keep rehashing the same tired formula over and over again?
Honest Question: Do you think I said anything about the validity of the argument?
All I asked was whether people are tired of having the same argument over and over. The reason I asked that is because tptacek was specifically not doing so, and someone was dragging the conversation in that direction. You have to understand, people like tptacek, myself and others that have been on HN (or anywhere on the internet) for a while, have seen these exact threads, with these exact arguments, probably hundreds of times. At some point, you realize that no one is bringing anything new to the table. Then someone like tptacek comes along and does bring something new (and relevant) to the table, and he can't even do that without the same old debated coming up.
The Republican Study Committee was founded by Republicans who thought the mainstream of their party was too moderate. Proposals that go beyond what is politically feasible is part of their mission, because they want to change the boundaries of what is feasible.
(For example, right now the committee’s Web page links to an op-ed advocating a flat 15% income tax. The President—any President, of either party—will sign a flat income tax into law some time after the Air Force trades its fighter jets for flying pigs.)
"This memo starts out with a highly dubious argument about the meaning of the copyright clause."
What's dubious about it? Isn't that the standard constitutional interpretation? I've always heard that it's supposed to work like a balance with incentives for creators on one side and public domain access on the other side, with the goal being to maximize invention and innovation.
Look through 'tzs comments for the one about the meaning of the word "science" at the time the constitution was ratified, and the clear intents of the framers. I believe Khanna's opening point about the purpose of copyright is actually incorrect.
> I believe Khanna's opening point about the purpose of copyright is actually incorrect.
Yes, you said that already. What you haven't said is why you believe this, except to cite an obscure (and not at all on point) comment on HN. I've done a little bit of searching, and it is easy to find extensive well-reasoned arguments that Khanna is spot on. e.g.:
This is a good essay, thanks for digging it up. I'm not sure it convinces me that Khanna isn't off base in the introduction to his memo, but that introduction isn't really the core of my argument and I wouldn't want to get derailed.
So what is the core of your argument? That the memo was not politically wise? That is manifestly true. But it says nothing about whether or not it was right on the merits, or even whether or not it was "shockingly sensible." As far as I can tell, it was all three of those things. If you don't agree, I'd really like to know why.
No! (Well, besides ratcheting terms back). That's the thing I'm trying to point out. If, like me and I think a lot of people, you think that the 2 big problems with our current copyright regime are (1) ordinary people are under constant threat of being bankrupted by studios for availing themselves of the most convenient access to a TV show or movie, and (2) that it's dangerous to start a consumer Internet company that deals in media, then these reforms meaningfully solve none of those problems. But at the same time they manage to be inflammatory to the content industry: exemptions for remixing rights-encumbered songs, punitive measures for mistaken takedowns, and slightly but not meaningfully increased costs of litigating infringement.
Ah, well there's your problem right there. I don't think the two problems you cite are the big problems. Those are merely symptoms of the real problem, which is that content providers are promulgating the belief that copyright is an entitlement rather than what the Constitution actually says it is: a grant. All the other problems flow from that fundamental mistake.
So long story short, even if tzs is correct I don't think that means that khanna is wrong, as his interpretation of the constitution doesn't depending on the 'sciences' part in any way. In fact, the way he is using 'sciences' seems to be consistent with the way tzs defines it.
The point 'tzs was making is that the purpose the framers had in ratifying the copyright clause was essentially the same purpose to which it is applied today. Khanna's point is that it has been warped towards a purpose other than the framers had in mind, which again does not in fact appear to be correct.
"Khanna's point is that it has been warped towards a purpose other than the framers had in mind, which again does not in fact appear to be correct."
I guess I still don't see how you're getting that. Khanna's criticism of the current copyright law is that it is being used to enrich creators rather than to maximize innovation. TZS's comment is about what can be copyrighted or patented, which Khanna never takes issue with.
What specifically do you think he is wrong about with regards to his interpretation of the constitution?
Here's a study prepared for Congress in the late '50s when they were considering a revision of copyright law that provides a good look at the historical development of our understanding of the scope of the copyright power in the US: http://www.copyright.gov/history/studies/study3.pdf
Well, the false or blanket DMCA take-down requests are a real problem.
Here's the recent HN example of how idiotic these have gotten: http://news.ycombinator.com/item?id=4867216 (Movie Studios Ask Google To Censor Their Own Films, Facebook and Wikipedia (torrentfreak.com))
I have no idea how big of a problem false or fraudulent copyright claims are, but they are in fact already illegal under U.S. copyright law:
Section 506(c) [1]:
Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.
Section 512(f) [2]:
Misrepresentations. - Any person who knowingly materially misrepresents under this section —
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
Can you point to a single instance of someone or some organization being successfully prosecuted for issuing a false or fraudulent DMCA take-down request? Yes, such requests are illegal under current law, but that law is never enforced. Part of the problem (in my, possibly uniformed, opinion) is that the legal standard is too high: you have to "knowingly" issue a false DMCA request, and that is a tough standard to prove in court. There is no penalty for shotgunning take-downs every which way and seeing what sticks (and saying "oops, my bad" for the ones that don't).
Why does issuing a DMCA counter-notification not automatically trigger an investigation by the FBI?
Then there is the problem that DMCA is woefully inadequate to deal with Fair Use. Fair Use is often cited inappropriately to justify unauthorized copying that does not rightfully fall under Fair Use exceptions. However. DMCA makes no such distinction, and it is up to the entity hosting the allegedly-infringing content (i.e., the one to which the DMCA notice is sent) to determine whether the content is actually infringing. Even when an unauthorized copy of a work passes each of the four parts of Fair Use test with flying colors, the DMCA takedown requester is still not in violation of the law you cited. So there is no disincentive to issuing spurious take-down requests.
Valid point. Question: When congress makes infringement a criminal matter, do you think false and fraudulent copyright claims should be treated a criminal matter (since they would be, essentially, false police reports)?
Previous discussion on HN has come to the conclusion that the false DMCA takedown prohibitions are effectively toothless because the adverbs used set an incredibly high bar of proof and malice.
They're a real problem, but how significant are they compared to the other peoples copyright reform advocates have? Spurious takedowns don't kill companies the way lawsuits do. I think takedowns are a cosmetic problem.
He was stupid, but a friend lost a load of legitimate, original work; he'd been using it as an external hard drive and sharing mechanism for his large project files.
The Mega prosecution was not spurious. The DoJ's discovery turned up a number of emails from Kim Schmitz and his team in which they openly admitted to compensating affiliates for uploading copyrighted material. Megaupload wasn't killed because of lax regulation over DMCA takedown regulations; it was killed because it was not, unlike Reddit or even Youtube, a bona fide clean-hands user-generated content exchange, but rather a piracy product wearing user-generated content clothing.
I would venture to say that the vast majority of piracy on megaupload was done without the knowledge of the people running the site. And it's obvious that some of the affiliate payments are going to go to people breaking the law on any site, unless you run background checks on your affiliates.
Megaupload may have been tuned toward being a 'piracy product' but that does not mean it was anything other than user-generated piracy.
Again: the Mega indictment is full of transcripts of emails in which Kim and his team arrange to pay people to put pirated material on the site, and in which they repeatedly acknowledge the existence of copyrighted material on the site. One guy complains to support about the quality of the video on a Dexter episode, and Kim writes concerned mail to his team about video quality!
Sorry, I somehow missed the emails about them actually arranging for pirated material. The worst I had known about was copying videos off youtube. But the Dexter email is valid. If illegal files find a bug you still need to fix the bug unrelated to removing the files.
A few minutes later: Okay I just skimmed through the indictment again and I can't find what you're talking about. There's points 54 and 55 about how they didn't cancel the affiliate accounts of people that had uploaded infringing files, but I can't find anything about them actually arranging pirated material, or specifically encouraging its upload. Also point 69d says out that copyright-violating uploads were disqualified for rewards, though Megaupload rarely terminated the accounts.
Ah, thanks. Well I see a lot of bad behavior, from them looking at user uploads, finding pirated files, and not removing them. But it's still unsolicited uploads. Page 33 mentions disqualification of 'very obvious' copyrighted files, but being 'rather flexible'. This is bad, but it's not going out and encouraging illegal-in-particular uploads. It's just poor policing on the affiliate program.
Page 32 is content from a discovered email in which a Megaupload employee calculates the affiliate bonus due to a user based on the value of the copyrighted files that user uploaded.
This isn't reading-between-the-lines stuff. It's there in black and white.
Right, it's black and white that they ignored copyright violations on a bunch of files. But that is not the same as encouraging infringing files over non-infringing files, or asking people to upload infringing files.
If you uploaded a popular infringing file, you might get $100, or you might get disqualified.
If you uploaded a popular non-infringing file, you would definitely get $100.
Megaupload knew about some of the piracy. That does not mean they arranged it. They treated it like any other file.
Also keep in mind that an indictment is designed to make the indicted party look as unsympathetic as possible. There may be additional context given which turns those e-mails from "smoking gun with Dotcom's demonic fingerprints" to just "Viacom vs. YouTube-esque questionable behavior" if that case ever goes to court.
One guy complains to support about the quality of the video on a Dexter episode, and Kim writes concerned mail to his team about video quality!
This is called "Doing it right."
If Showtime would sell me a license to view their content, I wouldn't even be tempted to download it for free. Since they refuse to, it's going to be tough to work up any righteous dudgeon towards Schmitz and crew, especially when they go out of their way to adopt a customer-oriented approach.
Copyright is a government entitlement that we spun from whole cloth. Capitalism, on the other hand, comes naturally. You can't fight Mother Nature.
Property rights, in the sense that's necessary for capitalism, requires authoritative enforcement to actually work, which in requires government. Both theoretically and empirically. It's not a novel idea at all.
My point is that some property rights can arguably be seen as natural rights, while others definitely cannot be interpreted that way. Copyright is unquestionably not a natural right. It's entirely an artifact of our legal system, and a very recent one at that.
As humans we've always had the concept of "property" to some extent, independent of government. That's not true of copyright law. That was something we invented in response to a specific need, but we invented it at a time when few/no other legal or intellectual tools were available. Copyright should never be treated as the sacred cow that property rights in general are, IMO.
> My point is that some property rights can arguably be seen as natural rights, while others definitely cannot be interpreted that way. Copyright is unquestionably not a natural right.
This "natural rights" talk sounds like theology to me. From an anthropological perspective, humans invented intellectual property around the time it became useful, just as humans invented land ownership around the time that became useful. You can say the same about owning shares of a business or owning currency. These are exactly the artificial property rights you need for capitalism, and you need government for those rights, and hence capitalism, to actually work.
A bone? Sure. Land? Stock in a corporation? These are the property rights capitalism is made of. Entire cultures have existed well into written history without either concept (one of the things that made it easier to forcibly remove them from the land they lived on, which likely means that your "natural law" arguments for land ownership are insufficient to protect the property rights of almost anyone in North America).
What you need for capitalism is centrally enforced rights to things like land and corporate equity. That is not a simple extrapolation for protecting one's personal possessions any more than copyright is. And like copyright, they require a government.
You can own a means of production without government backing, but without establishing laws and implementing a means of enforcing them, there's no guarantee that someone wouldn't come along and take it by force.
I just finished a Law 101 class so I'm by no means an expert, but I think the above explains the theory behind why we need laws. Whether you think the theory is legitimate or not is up to you. When I started the course, I was surprised to learn that our entire legal system was designed around the concept of property rights.
Your friend should be pretty pissed at Kim Schmitz for deceiving him into thinking that MegaUpload was a general-purpose file hosting site and not the criminal piracy conspiracy that it clearly, deliberately, lucratively was. You know, in addition to being pissed at the FBI.
I'm not denying that MegaUpload engaged in piracy, but that doesn't stop it from ALSO being a general-purpose file host.
This is very tangential to copyright law, but there was no good reason morally (and, as far as I'm aware, legally) not to return customers data.
Correct, and this is why Amazon S3 probably the biggest filesharing system in existence is not being sued and being taken offline. Megaupload, not so much.
(in reply to the much more nested comment) but this is the age of electronic data - it is easy to delete the content that was the subject of the DCMA and leave the rest of the site up read-only for a month while people archive (or something).
While I think the government could have been more forgiving of innocent third parties, remember that MegaUpload was a virtual company where all the computers were leased on the cloud. Those vendors were not being paid and meanwhile had capital costs on their equipment for as long as the prosecutors were copying off data. They deserved to have their equipment returned to them as soon as possible.
Sure, but he should still expect his seized "property" to be returned, just as if he had stored his archives at a storage facility whose owners were willfully ignorant of other customers running bootlegged DVDs on site.
DJs are the obvious place to start on compulsory licensing given that such already exists for covers of songs. Introducing standardized terms for sampling would be a small step in the right direction (something you seem to be advocating when you're talking about terms) in an industry that already understands it and has been there in the past (e.g. Paul's Boutique would be impossible to make nowadays). This helps build up towards e.g. standard licensing terms for reuse of characters (something that big content has a lot to gain from, but would likely be too afraid of at the moment).
> Ask instead, "was this a politically effective policy memo?"
The long-term political goal for the Republican Party is to win elections, praticularly the presidency.
Younger and tech-savvy voters tend to vote Democrat. This is a problem for Republicans because their voter base is literally dying. If they embraced copyright reform and pushed it as an issue, there may be a lot of votes in it for them. I would regard that as "politically effective".
Another point is that Holywood and the music industry massively support the Democrats. This would mean that if the Republicans adopted copyright reform as a policy, the Democrats would be in a bind: either adopt copyright reform too (and annoy the copyright industry, and give up all the money it gives) or don't (and annoy lots of Democrat-leaning voters). It's therefore a wedge issue that could be tactically effective for the Republicans.
It most be pretty obvious to intelligent, thoughtful Republicans that their current strategy -- of getting lots of white men to vote for them by exploiting prejudice against blacks, Hispanics, women, and gays -- has no future. So they're going to need a new one; copyright reform as part of an overall libertarian agenda might be part of it, and by shutting down the debate on the issue, the Republican Party is not doing itself any favours.
But I suspect it will take them one or two more election cycles before it sinks in to them that they need to do thinks differently.
I agree with your conclusion—the Republican leadership seems to have convinced itself that their policies had nothing to do with their loss in the last round, so it will probably take a couple more iterations to figure out that they've alienated just enough of the country to lose elections consistently without a platform change.
I also think a tactic like this one could be extremely valuable to a rational Republican party. However, that doesn't mean the numbers work for this particular wedge. Thomas's point is that it isn't politically effective if it costs more than you make in profit and this particular policy position costs more than it's worth. You have to count the voters you gain versus the ones you lose, but you also have to worry about your cash flow.
Say this move netted the Republican party 4% of the vote. That would probably be enough to swing an election by itself. But if the move costs them $10B in funding, we have to weigh how much of that 4% the Democratic party can win back with a $10B advantage (or more, if Republican donors become Democratic donors). If they gain 4% of the voters but lose 2% due to cashflow problems they wind up in more-or-less the same place they were before. Following this example, it would have to gain them more like 6%+ to be worth the cost, and unless 6% of our country would swing on this one issue it's not likely.
If Thomas is right and the reforms weren't well-posed (I'm in no position to judge, but his point is well made) then it's a high-risk proposition of dubious value.
I wouldn't be surprised if they returned to this topic with a more modest proposal that doesn't anger all of their copyright-holding donors but still has a certain kind of appeal. But like you said, I would be surprised if it happened in the next four years—maybe in more like 6-8.
I agree, the terms are insane, and I hope they don't keep extending them. I'm pretty sure every single person who worked on the original Disney movie Snow White is dead now, lets get that into public domain, the point of copyright isn't to have an income stream for one's family forever.
I think an interesting solution would be to charge a compounding fee for copyright protection. So let's say you have a no charge for the first X years. Your first renewal is almost nothing but after that it increases rapidly so that by the time you're pushing 50+ years the payments are only affordable for the largest properties. Now it might be worth millions for Disney to keep their 70 year old copyrights for another few years but at least that doesn't force every single piece of content into the same 70+ year IP regime. In fact it provides a strong incentive for most content to enter the public domain quickly. The licensing fees from the copyright system could be paid back to protected artists based on measures of downloads, plays and performances.
This sounds good, but how do you price the fees fairly for people who make different kinds of works?
If I'm a photographer, do I need to pay extension fees on all my thousands of works? Does my neighbor who makes movies only need to pay one fee? What if I make a book containing my photographs -- is that just one free? Can Disney make one long 40 hour movie containing all their stuff together and count that as one work?
I don't think that this would be a problem. It's not likely that a photographer would have a large number of photos that were each earning lots of money, so they would tend to just let the copyright expire. They can always take more photos to continue earning.
This is just a way of saying that the vast majority of individual photos don't represent a lot of creative work, and hence are a lot less worthy of protection. I would imagine that even a major photographer such as Ansel Adams wouldn't have more than a dozen photos earning good money more than a decade after the photo was first published.
My objection to steko's idea would be more that it is precisely the most important works that we are going to want to copy / create derivatives from, and yet these are precisely the works that will be the most able to perpetuate their protections.
Excellent point. Maybe this sort of plan would be unworkable given the ability to end run or exploit the system in certain ways (or just the way disciplines naturally blend into one another)? Maybe you could benchmark based on markets (the music industry is x billion, y million minutes of music are produced every year, etc.) and where a work doesn't clearly fall into a category it could go into the cheaper one or be interpolated.
That is an interesting and difficult problem. What if it were framed a little differently, though: Suppose there were a federal licensing tax. You'd pay, say, 5% of licensing revenue to the IRS for the first 20 years, 25% for the next 20 years, 60% for the 20 years after that, and so on. Obviously these are made-up numbers, but the idea would be that an increasing fraction of the license revenue would go to government.
I just remembered a variation on a story in which you declare what your property is worth and get taxed on that. The reason not to lower the price is that anyone can buy it from you at that price.
Maybe you can declare the value of your IP and the government taxes you like 2% on it. I don't think this would really work but I'm tossing it out anyway.
Perhaps we could allow your examples, with fair use as an escape valve. The more work you lump under the same license, the larger the excerpt that's plausibly fair use.
I've only read the reporting on the memo, not the memo itself, so I can't comment on the legal arguments within.
But aside from that, I thought it was a fairly sensible move, precisely because the policies were a) pretty benign - they're not really going to hurt the interests of the content industry, b) neutral politically - they won't offend the conservative base, and c) naturally appealing to a constituency that's outside the typical G.O.P. base.
We do a good job appealing to married, religious, older, self-employed, or rural voters - if only we could run a competent campaign, we could potentially win on the strength of those constituencies alone. But that doesn't mean we can't find simple ways to appeal to other groups of voters that are consistent with (or at least don't contradict) conservative principles.
I don't expect 'the Redditor vote' to ever go Republican, but policies like this can shift it a couple of percent, lower donations, and reduce turnout - all quite-useful things.
That's a platitude. People who work in content would say, this is about the rights of people to control the product of their own labor, and to realize the maximum value from that labor by being able to sell it to other people. That would be the same argument used by software developers when their rights are abridged by piracy, or when their code is misappropriated by (much larger) partners.
What I'd like right away is even easier -- shorter copyright terms by default (maybe even the 1790 level), with positive actions required to extend them. Politically there is support from Disney, etc. to keep Mickey Mouse under de-facto perpetual copyright, but I don't really care about Mickey Mouse -- I want most of the books written, many now out of print, from much of the 20th century to be appearing in the public domain.
There was copyright renewal until 1992. It seems like a useful requirement. I'd support increasingly-onerous payments and renewal requirements -- maybe you get free copyright for 14-28 years, and then each year renewal after that costs an exponentially increasing amount of money.
I don't have time to respond properly, but even though I'm a bit of a copyright hawk myself I'm strongly in favor of the Khanna propositions. When the 'limited times' exceed the median human lifespan, the effective term of copyright for most citizens is infinite. I think most of the goals identified in the Khanna memo were shockingly sensible, even the DJ bits.
That said, it's not sensible in terms of political capital; even if the Republican party decides to leap in the 21st century and propose radical reforms, there are bigger fish to fry in the next Congress, like tax/entitlement reform, immigration and so forth.
Of course I think we need a third party and my occasional hobby is drafting its manifesto, but that isn't exactly a short-term project either.
Strong agree that we need to reform copyright terms! (I'd also be happy with compulsory licensing of some sort, so there'd be some transparency in licensing and, more importantly, so that lawful access would become more convenient [with more providers offering services] instead of fighting losing battles against piracy).
But of course, this memo doesn't just say "reform copyright terms". It also says, "we need to address the problem of DMCA abuse" (everyone in the content industry and lots of reasonable outsiders, although by no means most of them in Internet circles, would say the opposite --- that's it's so hard to address blatant outright "no copyright intended" infringement today that new vectors for suppressing piracy are needed) and "we need to enable DJs".
I like Girl Talk O.K., and "It Takes A Nation" is among my favorite albums, but the needs of DJs and remix artists are (a) not at the top of the national agenda even for copyright reform, and (b) mostly not a real problem given the economics of electronic/remix music today anyways, most of which isn't and, like most music, can't be compensated through traditional label-style recorded music sales anyways. It's not like DJs are being raided at live shows for their samples.
It is a tangentally effective policy memo. It highlights the will of the status quo lobby to influence Steve Scalise and quash dialog on the issue.
Khanna's specific proposal says:
A. Free 12-year copyright term for all new works – subject to registration, and all existing works are renewed as of the passage of the reform legislation. If passed today this would mean that new works have a copyright until 2024.
B. Elective-12 year renewal (cost 1% of all United States revenue from first 12 years – which equals all sales).
C. Elective-6 year renewal (cost 3% of revenue from the previous 12 years).
D.Elective-6 year renewal (cost 5% of revenue in previous 6 years).
E. Elective-10 year renewal (10% of ALL overall revenue – fees paid so far)
This proposal would terminate all copyright protection after 46 years.
Content may be a 100 billion a year industry, but copyright violation does not put that full $100 B at risk.
Why settle on the pre-Bono copyright term? Why do you pick that instead of the original 14 years + 14 year renewal?
I think you've already decided you want copyright more or less the way it is, so you throw copyright doves a bone (breadcrumb?) by offering a single undo, and hope someone bites.
If you try to examine copyright law from basic principles, rather than from the perspective of the status quo, it becomes very tough to support even the pre-Bono copyright terms of life+50 years (personal) or 75 years (corporate), automatic, with registration only required to collect punitive damages, but not required to sue (harass) arguably legitimate fair users of content.
How does compulsory licensing work without capping license fees? Content creators have a monopoly. Forcing them to charge something for licensing does no good; they can set the price arbitrarily high.
If you cap the fees, you have to have a very complex formula so that you can arrive at a maximum license fee, given an arbitrary piece of intellectual property, and some arbitrary proposed licensed use of that IP.
Complex regulation like that invites abuse by anyone with the resources to lobby, so it becomes a lobbying contest rather than an attempted equitable settlement (how do you judge what's fair pricing for license of IP that's held by a monopoly?). If that wasn't bad enough, by capping fees you've effectively partially socialized the IP content industry: The free market and private industry would no longer be the primary drivers of the economics of IP.
I think everyone, even copyright doves like myself, fantasize about creating some incredibly desirable piece of IP that we can live off of for life. We just differ in the judgment of effectiveness, actual financial benefit, and collateral damage related to taking legal action against non-for-profit filesharers.
I am only addressing the political and legal problems here; not the practical, ethical, and technological enforcement problems, of which I think there are many.
In my eyes I saw it as less about the cause of copyright reform, and much more about the message of "We republicans are going to stop catering to the rich guys with lobbying power." Which would have had lasting and view/brand changing consequences. Take something with seemingly little effect and get a major reaction. Whether that was anyone's goals or if the memo should have been taken at face value is of course debatable. I just wanted to give a plausible bigger picture they could have been grabbing at. (mind you the republicans should have learned this last election that limitless money doesn't instantly bring you results, you need content as well.)
> Ask instead, "was this a politically effective policy memo?"
Exactly, Republicans' strongest constituency (rich white guys[1]) don't care all that much, if at all, about details of copyrights, something that costs their households a few hundred dollars a year at most. On the other hand, people who care either already lean libertarian enough to vote red, or will never, ever even consider voting for a Republican.
A senator will get more votes going door to door than by pushing through any reform like that.
You're right that perhaps what the paper was saying was to radical to be really implemented but sometime radical things are need to bring change! You can't be paying over a billlion dollars for the music in a single ipod...
In one sense, your point and mine can be true at the same time: that radical proposals are what's going to be required to reform copyright, and that the RSC is not only a wildly inappropriate venue for those proposals but also that a single "rogue" RSC staffer had no business putting the RSC behind a policy initiative that virtually nobody in the house on either side supported. Again, you'd be right here and I would at the same time.
But in another sense, I'm saying something more about the memo; not only that it was inappropriate for its venue, but that its policy goals were dumb. The Khanna memo would not have made it any less fraught to run a consumer Internet company. It would not have prevented the content industry from leveraging potential bankruptcy against infringers. Apart from reducing copyright terms, it seemed to consist mostly of extravagantly costly political expenditures in the service of cosmetic goals.
It's not the government's job to protect any industry from anything, only to foster jobs and the general economy. The 100 billion the industry makes is besides the point.
Further it's been proven that there was nothing 'rogue' about that report, it was properly vet and screened before release but the GOP bowed to lobbist pressure and came up with that lame excuse
Sorry but your post reeks of being too "inside baseball". You discount a bill because it is not passable rather than being ideologically aligned with a large portion of the public. And then bring money and stakeholders into the situation. Of course those stakeholders who are currently getting rich off of the current laws aren't going to like it. And of course it's not passable. But that is not the point. Taking power from those who have it and instituting a "takeback" are not easy. That doesn't mean we shouldn't try. Don't keep people from shooting for the moon b/c it's not practical.
It seems to me ... that a reasonable short-term goal would have been to reduce the term of copyright, ratcheting it back to where it was, say, before Sonny Bono.
A bit of a decrease would be possible, from life+70 to life+50, but since the U.S. acceded to the Berne Convention, it's committed itself to terms no shorter than life+50. I think expanding statutory protections for fair use would probably be a more effective approach, although expanding compulsory licensing is an interesting possible alternative.
You're right. I got the number from Commerce, but Commerce's industry breakdown is weird. I don't know what the revenue split is between content producers like Viacom (who factor into the Entertainment & Media industry) and Comcast (who appear to factor into Communications Technology).
I think we can probably stipulate that information technology is a larger industry than entertainment and media; to the extent that it isn't, though, my point is stronger, right?
I largely agree with you that Redditors go over the top with things without thinking them through but have to point out a couple of lines that I disagree with.
>really? spend political capital to modify regulations on a $100bn industry for... DJs?
The point should be whether it's for the overall public good, not just for some industry. Lets assume the $100bn industry just rolls over and dies tomorrow, ignore the losses of art and entertainment for a second. What would consumers do with a $100bn extra in their pockets? Would they spend it on buying electric cars thus jumpstarting them? Would they invest it thus making new companies easy to start? Would it kickstart alternative business models that would employ some of the unemployed? Perhaps not. But the fact that it hurts a particular $100bn industry by itself should not be a veto against such a measure, or else we would still be riding horse buggies.
>Ask instead, "was this a politically effective policy memo?" Were its goals in the 113th congress realistic? Were its arguments persuasive? Something like 35% of all congresspeople are lawyers, and this memo starts out with a highly dubious argument about the meaning of the copyright clause.
Just like in courtcases, even in Congress you need to push for the extremes in order to get something done. If you push for realistic measures, it is sure to get watered down to essentially nothing. It's like a salary negotiation, if you start with a reasonable number, HR will never agree to that and will themselves offer a very low offer which you will have trouble in getting it where you want. You need to shoot for 10 to 20% more than what is "reasonable" in order to have any hope of getting a reasonable offer. Same with the bill here. Have you not been keeping up with how bills are negotiated in Congress? If anything reasonable is suggested, the Hollywood lobbyists with bags of cash in their hand will water it down. Hollywood spends a ton of money on lobbying, and legislators are cash strapped at election time with candidates raising millions.
I addressed the latter point downthread: it's not just that the memo overshot the RSC membership and the tolerances of the Content industry, but that it did so to no good effect: if every reform in the memo had been adopted (at huge cost politically), the content industry would still be able to threaten infringers with bankruptcy and starting a content-rich consumer Internet company would still be fraught.
On the former point, about DJs: making it simpler for DJs to sell music with rights-encumbered samples isn't going to fundamentally change the economics of either the content industry or the consumer Internet. Fair use for DJs is an issue that applies to a subculture of a subculture of a subculture, and even more weirdly, is an issue that has mostly been metabolized by that subsubsubculture: Girl Talk, for instance, wasn't going to make a lot of money selling his currently non-salable tracks, because almost nobody makes money selling recorded music anymore.
Content is a $100Bn industry. Technology is 5-6x bigger, but the tech companies trying to disrupt content are an insignificant fraction of that industry.
Meanwhile, set aside whether you believe in the reforms proposed in the Khanna memo --- reducing statutory damages, increasing cost of enforcement, reducing copyright terms. Ask instead, "was this a politically effective policy memo?" Were its goals in the 113th congress realistic? Were its arguments persuasive? Something like 35% of all congresspeople are lawyers, and this memo starts out with a highly dubious argument about the meaning of the copyright clause.
It seems to me (and I am prepared to hear smart people tell me how wrong I am about this) that a reasonable short-term goal would have been to reduce the term of copyright, ratcheting it back to where it was, say, before Sonny Bono. Instead, this "RSC" memo proposed beyond that a gift basket of what seem like mostly not-useful policy trinkets for Redditors: expanded fair use for DJ culture (really? spend political capital to modify regulations on a $100bn industry for... DJs?), lower statutory caps for damages (the MPAA and RIAA already sue for a tiny fraction of the likely liability for many infringers), and punishing false copyright claims (the claims studios take to court are overwhelmingly not false; penalizing bogus DMCA takedowns wouldn't move the dials at all).
The real copyright reform is probably something like reduced term and compulsory licensing. What was the value to the RSC of trolling the Content industry for reforms that had no chance of happening, that wouldn't have actually kept people from being bankrupted by lawsuits, that wouldn't make it easier to launch tech companies, and that at the same time manage to almost uniformly enrage rightsholders?
Was this memo really "shockingly sensible"? A lot of smart people say it was. But I wonder whether they're more shocked that any conversation could have happened at all, and not really looking closely at the content of the memo itself.