Infringement Nation

November 26, 2007 6:59 AM

Infringement Nation: Copyright Reform and the Law/Norm Gap. [pdf]

It's a reasonably short and easy to read essay. Section IV contains a cute little story on just how much stuff falls under copyright law. via Schneier on Security

posted by chunking express (22 comments total)

See also Larry Lessig, "How creativity is being strangled by the law". TED confrence video, 20-minutes. Powerful speech, people were standing up at the end clapping. Lessig turns the debate of copyright into a larger social movement. "We are living in a time of Prohibition".
posted by stbalbach at 7:25 AM on November 26, 2007 [1 favorite has favorites]

Copyright holders are interested in protecting established & speculated concrete sources of revenue. Some of the hypothetical prosecutions in his gedankenexperiment are very, very unlikely.

To take this example:

The very technologies that enhance our media experiences are rapidly bringing us closer to the Panopticon state in which a near-total enforcement of intellectual property rights becomes viable. With the requisite advances in voice recognition software, every car stereo could be equipped with ears that monitor the noise in a car. Like a radio-frequency identification toll card, the mechanism could determine each song being hummed inside the car during the course of a month and then automatically bill the car’s owner for the licensing rights to perform those copyrighted musical compositions or create such derivatives of the sound recordings.

Copyright holders are unlikely to prosecute such 'offences' if only for the obviously bad PR, unlike the RIAA inquisition, where atleast the semblance of propriety was/is against the downloaders, irrespective of the net economic effects of electronic piracy.

All the paper successfully illustrates is that current statute literally and liberally applied results in socially absurd outcomes. But statutes are words on paper. The human intermediary, responsible for law & order, are subject to social & political forces. There's not much danger of a widespread dissonance within the public over the potential scope of the copyright laws.
posted by Gyan at 8:07 AM on November 26, 2007

The paper doesn't even demonstrate that copyright law causes truly absurd results. It essentially presents a worst-possible-case analysis under which there are no fair use rights ever, at all. That's extraordinarily unrealistic, and you get there only by reading fair use out of the law entirely. Most of the examples it discusses in the hypothetical are fairly obvious fair uses.

The article could have more of a point if it were arguing that it's only fair use that saves us from the slavering jaws of a Lovecroftian horror of copyright control. (We should all be incredibly grateful for fair use every day.) But it doesn't go there. Contrary to what it says, the vast majority of the general public are NOT constant copyright infringers. Copyright law is broken, but nowhere near that broken.
posted by grimmelm at 8:43 AM on November 26, 2007

"the vast majority of the general public are NOT constant copyright infringers"

oh really? how old are you?
posted by muppetboy at 8:50 AM on November 26, 2007

grimmelm: he claims that his treatment of fair use is plausible (I assume he meant legally)

For the purposes of this Gedankenexperiment, we assume the worst-case scenario of full enforcement of rights by copyright holders and an uncharitable, though perfectly plausible, reading of existing case law and the fair use doctrine. Fair use is, after all, notoriously fickle and the defense offers little ex ante refuge to users of copyrighted works

posted by Gyan at 8:51 AM on November 26, 2007

I think his point is that fair-use is far to tenuous a notion to counter-balance the full weight of copyright law.

And muppetboy is right, most everyone I know pirates music, television, or movies. I think you'll be hard pressed to find someone under the age of 30 who doesn't at least pirate music.
posted by chunking express at 8:54 AM on November 26, 2007

"...rapidly bringing us closer to the Panopticon state in which a near-total enforcement of intellectual property rights becomes viable. With the requisite advances in voice recognition software, every car stereo could be equipped with ears that monitor the noise in a car..."

When I got my most recent car, it came installed with this OnStar thing. I didn't want it, but for some reason it came bundled with the deal. So I got it for free one year and didn't use it and it elapsed and I ignored it, but the three buttons on my rear view mirror are still there.

One day late in the first year of having this car, when OnStar was still active, I was driving a friend home and she pushed the button while saying, "what's this?"

I was like "don't push that" and suddenly there was a third voice in the car asking me how she could help us. I apologized and said we pushed it by accident and we're really sorry. She said that was perfectly allright and reminded us that if we ever needed anything OnStar was there and said goodbye.

My friend and I looked at each other for a long second.

"You got a crazy ass car, dude."

"Stop pushing buttons in here, okay?"

Just the other day I accidently pushed that button again myself, while trying to move the rear view mirror so that I had a more comfortable view, and this time an automated message went on at length about all the advantages OnStar had and blah blah blah and oh by the way the thingy has elapsed and if you push this button again we can get you set up again so you can enjoy everything OnStar has to offer...

And it occurred to me. This car is wired for sound. I mean I push a button and activate it, but who is to say that there isn't a button somewhere on the other side, over at OnStar, where they could listen in? NOW. I'm not saying in some near scifi future. That scifi future is in my car now. The only reason I can fathom that there isn't someone listening in on my car is cuz my car and my life are very boring.

But if someone was paid to listen in for copyright infringement, every time I break out into song singing Billy Joel tunes randomly or whatever... that's some creepy ass shit right there. People listening to me for singing off key.

"Contrary to what it says, the vast majority of the general public are NOT constant copyright infringers. Copyright law is broken, but nowhere near that broken."

Dude. The other day at work some people launched into the old Happy Birthday song for a fellow co-worker. THAT is copyright infringement. Not on any level that could reasonably ever get prosecuted, but it is. Whenever you launch into that song, you might as well be sitting in a speakeasy listening to jazz and having yourself some white lightning in a jar.

Copyright is VERY broken, and the only reason we're not getting prosecuted every time we hum an old Simon & Garfunkel tune to ourselves is cuz there's no money in it.
posted by ZachsMind at 9:01 AM on November 26, 2007 [4 favorites has favorites]

As Lessig has pointed out, one of the major problems of fair use is the cost involved in going to court to show fair use if the copyright holder decides to. This skews the whole process far to much in the direction of large copyright holders, as they can essentially 'bully' people out of exercising their fair use rights with the threat of huge legal fees that they cannot afford.
posted by drill_here_fore_seismics at 9:29 AM on November 26, 2007

We are living, at this point, in a world where a particular criminal act is the norm. Neat.
posted by Pope Guilty at 9:44 AM on November 26, 2007

There's not much danger of a widespread dissonance within the public over the potential scope of the copyright laws.

The continued willingness of baby boomers to enforce marijuana laws suggests to me that people have a surprisingly elastic ability to rationalize criminalizing activities they themselves have engaged in. It also suggests that laws are more often shaped by a passionate minority than an ambivalent majority (particularly if there's money involved).
posted by Horace Rumpole at 9:56 AM on November 26, 2007 [2 favorites has favorites]

Zachsmind, OnStar not only can listen in to your car, it monitors your position by GPS and in many cars it knows all the engine diagnostics too. It works through the cell phone network, and contact can indeed be initiated from OnStar -- your car basically has a phone number, it can dial out (if it hasn't already got a connection) when you press the button, but it can also dial in. A friend just got a high end SUV with it and the system emails him a report every month with details like his tire pressures and gas mileage.

I can see the usefulness at times, but if I wasn't paying for it I would *so* disconnect the electronics. OTOH if you haven't been paying I'm surprised it still works; somebody has to be paying the cell phone carrier.
posted by localroger at 10:04 AM on November 26, 2007

The first example in the essay, where John's liability for forwarded emails is assessed at $3 million in statutory damages, is overblown. First, an author of one of the emails couldn't even bring an infringement claim unless and until he had a federal copyright registration for the text of the email. Second, in the unlikely event that copyright owner could even elect statutory damages, there's not a chance in hell he'd be awarded the full amount. The same goes for the Found magazine example.

Beyond that, and despite the fact that I disagree with using the worst case scenario to paint an accurate picture, it's an interesting essay. I have to reassure people every day that what they're doing isn't infringement, or that even if it is they're not likely to be sued out of existence. It's distressing that we've gotten to the point where junior high kids have asked me if they will get in trouble for listening to music in their room with friends.

On that note, ZachsMind, you're perfectly safe singing Happy Birthday (or anything else) in your car, OnStar be damned. Unless you've invited a carload of strangers to join you, your impromptu solo debut isn't likely a "public performance".
posted by schoolgirl report at 11:13 AM on November 26, 2007

So, having sex in a moving car wouldn't be public indecency?
posted by bashos_frog at 11:45 AM on November 26, 2007

Glad to see this here. Just read about it on Bruce Scheier's blog.
posted by malaprohibita at 12:50 PM on November 26, 2007

Dude. The other day at work some people launched into the old Happy Birthday song for a fellow co-worker. THAT is copyright infringement. Not on any level that could reasonably ever get prosecuted, but it is.

This is, in fact, why the waitstaff at [insert your favorite chain restaurant] will sing some absurdly stupid 'special' birthday song to you when they bring out a cupcake for you, instead of the traditional Happy Birthday To You.
posted by verb at 3:29 PM on November 26, 2007

I really, REALLY can't get the POV of the people here denying copyright laws aren't a huge problem. Sure, the paper presents a worst-case scenario, but that's just it, it's all still LEGAL. All that protects the infringer from Legal Wrath is lack of enforcement and the good will of the person who owns the rights. Remember: there are plenty of people in the world who would piss on your cornflakes if there were only a way to turn a profit.

And the Happy Birthday thing? 'Cording to Snopes, the rights holders of that song, currently AOL Time Warner, get $2 million a year licensing it. Whenever you hear staff at a restaurant singing a song other than "Happy Birthday" in celebration of a customer's annual, which is both public performance and commercial use, that's why. (On preview: Go verb, it's your birthday)

This is the state of the law, and if someone thinks it's okay because these cases would never be prosecuted, then shouldn't they have no objection to bringing the law into accordance with custom?
posted by JHarris at 3:53 PM on November 26, 2007

That's extraordinarily unrealistic, and you get there only by reading fair use out of the law entirely.

Quite. Except that's already basically happened. By wrapping your content in a copyright-protection mechanism, which under the DMCA is illegal to circumvent, you have effectively eliminated Fair Use. (Since the DMCA has no Fair Use exemption.)

Fair Use already has been written out of the law for protected content. As long as you only release the content wrapped in some sort of protective mechanism, although someone may have a right to use the content itself and avoid the copyright infringement, they can't get at the content without violating the DMCA. (The only way around this would be to get someone with one of the very narrow DMCA exemptions to remove the protection and then get the unprotected version from them and do your Fair Use thing with it, but I'm not sure that's legal for them to do -- unprotect it using their exemption and then give the deprotected version to someone without a DMCA exemption.)

See what they did there?

Although the risk of 'universal DRM' (in the fashion of, say, Vernor Vinge's Rainbows End, where the use of computers that don't have a DRM module in them is illegal) is perhaps less than it was a few years ago -- it seems that a few corporate-types have seen the light -- it could still easily happen. If the U.S. economy starts to go down the tubes, you could frame mandatory DRM as a national-economic-security issue ('we need this to protect the only remaining U.S. exports...') and probably force it through, particularly if your backdoored the normal political process by doing it as a 'treaty compliance' measure (e.g. like the DMCA was for WIPO).
posted by Kadin2048 at 6:15 PM on November 26, 2007

This seems well-thought-out, but the style is just a wee-bit (read: 42 shitons) overblown. I keep waiting for the whole ting to dissolve into parody and justify the crazy-ass verbiage. I think i'm going to have to bookmark and read when i've got the stomach.
posted by es_de_bah at 7:56 PM on November 26, 2007

Copyright holders are unlikely to prosecute such 'offences' if only for the obviously bad PR, unlike the RIAA inquisition, where atleast the semblance of propriety was/is against the downloaders, irrespective of the net economic effects of electronic piracy.

Not sure what you're trying to say, but if it's that they won't prosecute if it gives them bad PR, then I pretty sure that statement has been proven false by the very prosecutions you allude to. Survey research has shown that the very downloaders they go after are some of the biggest purchasers as well. These RIAA guys are prosecuting their own best customers. Free distribution of music has always been the incentive for purchasing the music. No one wants to buy a pig in a poke, except a few fanatical teenage girls for whatever their current fave rave is.
posted by Mental Wimp at 4:32 PM on November 27, 2007

Mental Wimp: Survey research has shown that the very downloaders they go after are some of the biggest purchasers as well

My claim's only proven false if the public-at-large believes this as well. Doesn't matter whether the survey results are true or not or whether the RIAA is going after their best customers or not. By the way, I'd like to see a couple of such surveys. Any links?
posted by Gyan at 10:40 PM on November 27, 2007

schoolgirl report: First, an author of one of the emails couldn't even bring an infringement claim unless and until he had a federal copyright registration for the text of the email.

Actually, for the record: A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death.

In other words, as soon as I type these words (thus "fixing" them in the tangible form of my computer's memory), they are protected by U.S. federal copyright law. No further affirmative act of registration is necessary on my part in order for my copyright to be enforceable.

Also, it's fairly obvious that not every copyright holder in Tehranian's hypothetical scenario is going to sue John; that's absurd. He's making a reductio ad absurdum argument. I mean, in practical terms, the government will never imprison and torture every single American citizen, or even a majority of American citizens, in a secret prison somewhere overseas. But in principle, the government has claimed a legal right to do so, and that threatens the freedom of all of us. Even if copyright holders don't sue us all blind for quoting their emails and shooting videos with their posters in the background, the fact that they now hold, or even appear to hold, the legal power to do so, is in principle wrong and threatens our freedom to live our lives in what we've grown accustomed to regarding as a normal way.
posted by skoosh at 9:00 PM on November 28, 2007

Gyan

Here's one survey and here's another study.

The music industry has spent a lot of time and effort convincing (at least some of the more naive members of) the public at large that listening to music you didn't buy is "theft." It's patent bullshit, IMO, but YMMV, etc., etc.
posted by Mental Wimp at 3:54 PM on November 29, 2007