I too am sad to see William Patry hanging up his spurs. I can sympathize with a lot of he says. I too consider myself a copyright centrist and a defender of copyright’s traditions and so find it frustrating to be forced by recent trends to be constantly on the “anti-copyright” side of every argument. However, I don’t share Patry’s depression regarding recent trends in the copyright world. Because while the legislative developments over the last 30 years have been an unbroken string of disasters, most other aspects of the copyright system have actually gone pretty well.
One ray of light is the courts, which continue to get more right than they get wrong. The courts have, for example tended to uphold the first sale doctrine and fair use against concerted challenges from the copyright industries. Had Congress not passed the 1976 Copyright Act, the NET Act in 1997, and the DMCA and CTEA in 1998, my sense is that we’d actually have a pretty balanced copyright system. This suggests to me that restoring copyright sanity wouldn’t actually be that hard, if Congress were ever inclined to do so. To a large extent, it would simply have to repeal the bad legislation enacted during the 1990s.
I can think of two reasons my outlook might be more optimistic than Patry’s. One is that I’m younger than he is. I graduated from high school in 1998, which was almost certainly the low point when it comes to copyright policy on the Hill. While advocates of balanced copyright haven’t passed any major legislative victories since then, they have blocked most of the bad ideas that have come down the pike. We killed Fritz Hollings godawful SSSCA, the broadcast flag, “analog hole” legislation, and so forth. Given the lopsided advantages of the copyright maximalist in terms of funding and lobbying muscle, holding our own isn’t bad.
I think another reason I might be less inclined to get depressed than Patry is that I’m not a copyright lawyer. One of the most important trends of the last couple of decades is a steady divergence between the letter of copyright law and peoples’ actual practice. At the same time copyright law has gotten more draconian, it has also grown less powerful. More and more people are simply ignoring copyright law and doing as they please. A few of them get caught and face draconian penalties, but the vast majority ignore the law without any real consequences.
I imagine this is depressing for a copyright lawyer to see an ever-growing chasm between the letter of the law and peoples’ actual behavior. The copyright lobby’s extremism is steadily making copyright law less relevant and pushing more and more people to simply ignore it. That’s depressing for someone who loves copyright law, but I’m not sure it’s so terrible for the rest of us. I would, of course, prefer to have a reasonable set of copyright laws that most people would respect and obey. But I’m not sure it’s such a terrible thing when people react to unreasonable laws by ignoring them. Eventually, Congress will notice that there’s little correspondence between what people are doing and what the law says they ought to be doing, and they’ll change the laws accordingly. I’d prefer that happen sooner rather than later, but I have little doubt that it will happen, and I’m not going to lose sleep over it in the interim.
Want to know why copyright lobbyists never seem to have any real arguments? Because they describe those of us who defend the traditional contours of copyright law—including “limited terms”—as “copyright opponents.”
I mean, really.
Pity the poor musician:
The Times quotes, Herbie Flowers, who played bass on Lou Reed’s Walk on the Wild Side and David Bowie’s Space Oddity: “The term of protection for performers has not kept up with life expectancy and it is high time it was changed. I played on a couple of very successful tracks, and it would be unfair for me to stop receiving income for these performances after 50 years — probably just at the time when I will need it the most.”
I wonder if he realizes that the vast majority of people “stop receiving income” from their jobs the moment they stop doing them. You can be sure, for example, that I won’t be continuing to pay my dry cleaner 50 years from now for the pants he cleaned last month.
Hat tip: Rob Hyndman
Sean Sands makes the argument that it is in a very powerfully worded editorial today over at The Escapist entitled “Sink the Pirates“:
PC developers are being forced to make more dramatic decisions in the face of overwhelming piracy, an issue that Cevat Yerli, CEO of Crysis developer Crytek, recently enumerated at one legitimate copy to every twenty pirated. […] Yes, I think Cevat is inflating his 20 to 1 statistic, but he’s probably not nearly as far off as you or I might think. Looking at arguably one of the largest P2P torrent sharing sites on the web (no, I’m not going to link to it), and the number of Games torrents currently available, the evidence is absolutely damning. Despite PCs’ relative weakness in the marketplace, clearly in the backseat by orders of magnitude in relation to the next gen and handheld systems, it represents 50% of all torrents. Let me stress that – the number of illegal PC downloads are, at any given moment, equal to or greater than the illegal downloads for every other system combined. […] Here’s the bottom line: Yes, piracy is destroying PC gaming. That is an immutable truth, evidenced by the exodus of PC developers defecting en masse to make games for consoles. End of story.
I’m not prepared to offer an opinion one way or the other, but I have noticed the slowdown in the PC gaming market recently and wondered about why many developers were moving over the more secure gaming consoles. That doesn’t necessarily prove that piracy was the primary factor, but it certainly could be part of the explanation.
What do you think?
Google has found itself stuck between a rock and a hard place in its legal battle with Viacom over the question of whether IP addresses constitute “personally identifiable information,” as Jim pointed out yesterday. It’s worth noting, however, that EU regulators have left Google little choice but to stake out uncharted territory in order to defend its data collection practices.
Under the European Union’s strict privacy directive, websites are prohibited from retaining “personal data” for more than six months. What exactly constitutes personal data is up for debate. Google, which retains IP addresses for 18 months, has taken the position that IP addresses don’t constitute personal data and therefore are not subject to EU data retention limits.
That argument has placed Google in a double-bind in its legal proceedings with Viacom. In his recent ruling, Judge Stanton specifically referenced Google’s recent blog post which argued that IP addresses should not be considered personally identifiable information. If IP addresses aren’t private, Stanton reasoned, then what’s the harm in Google handing them over to Viacom?
Whether an IP address can identify an individual is a matter of context. Google stated recently, “Based on our own analysis, we believe that whether or not an IP address is personal data depends on how the data is being used.” That makes sense; an IP address alone is generally not enough information to identify an individual, absent a court order.
Yet while IP addresses are not capable of overtly identifying individuals in the same way as phone numbers and addresses, IP addresses combined with other details often make it possible to positively identify individuals with a high degree of accuracy. Anybody can run a reverse DNS lookup on an IP address, which usually reveals the city and state in which the user of that IP address is located, along with the service provider. The YouTube logs that Google has been ordered to produce include not just IP addresses but also usernames and specific viewing times, so it’s all but guaranteed that quite a few individuals could be personally identified given enough man-hours of data mining.
Continue reading →
Tim Lee has published a Cato TechKnowledge piece discussing the growing problem of “orphan works” – copyrighted material the owner of which can’t be found. He highlights the work of our own Jerry Brito.
AP sends nastigrams to blogs for citing as few as 39 words from its stories.
Mike Arrington blogs about it at TechCrunch.
The AP quotes 22 words from Arrington’s post.
Arrington responds:
Now the A.P. has gone too far. They’ve quoted twenty-two words from one of our posts, in clear violation of their warped interpretation of copyright law. The offending quote, from this post, is here (I’m suspending my A.P. ban to report on this important story).
Am I being ridiculous? Absolutely. But the point is to illustrate that the A.P. is taking an absurd and indefensible position, too. So I’ve called my lawyers (really) and have asked them to deliver a DMCA takedown demand to the A.P. And I will also be sending them a bill for $12.50 with that letter, which is exactly what the A.P. would have charged me if I published a 22 word quote from one of their articles.
Brilliant.
Cato Unbound today published my reaction to Rasmus Fleisher’s lead essay on the future of copyright. My essay, titled Towards a Copyriot Act—and Away from it, Again, describes “another future for copyright, one in which lawmakers impose crushing penalties to discourage rampant infringement.” It begins by asking readers to put themselves in the shoes of a Hollwood executive, one who says,
“The police need to fire a few shots over the infringers’ heads. And if the looting continues, they should shoot some of the looters. That may sound severe, but we face a breakdown of civil order. After all, wouldn’t police — or perhaps the National Guard — do the same if mobs threatened to take over Wall Street, Rodeo Drive, or Constitution Avenue? Hollywood deserves the same protection. The time has come to get tough on infringement. The Copyright Act’s mild remedies evidently do not suffice. We need a Copyriot Act!”,
Cato Unbound will next host a series of brief exchanges between Fleischer and we three who responded to his lead essay. Check
The Future of Copyright issue for that debate, as well as all of the essays.
[Crossposted at Agoraphilia and Technology Liberation Front.]
I neglected to mention that I’m on Cato’s Daily Podcast today discussing the themes of my copyright essay. Just to be clear, the complete home-recorded Golden Girls VHS collection Caleb references is purely hypothetical. I don’t collect copyright-infringing videos, and if I did they wouldn’t be on VHS, nor would they consist of Golden Girls re-runs.
Update: I guess it’s possible people would have liked a link
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