Friday, February 15, 2008

free Kate's nudity!

Over on the Fair Copyright Facebook group, I'm in a bit of a discussion with a fellow named Darryl who runs the website Death by Copyright. Darryl seems like a very committed advocate for minimal copyright, and I respect his passion even while I strongly disagree with him.

I was cruising around his site recently, which aims to show how primarily follow-on creative works have been, as he puts it, "suppressed" by original creator copyright. He's dug up some interesting case law, but to me much of what he thinks this case law proves is bizarre.

For example:

A video rental company in Utah took their legally bought copies of the film Titanic and sanitized them by scrubbing out the nudeness of Kate Winslet's character in the scene where she is being sketched naked. The company was sued by the film's producers and lost. I'm surprised the teenagers of Utah didn't launch a class action.

Death by Copyright has this to say about Kate's abused privates:

"The question is how far should the rights of the creators extend AFTER they have sold the work? Once I've legally purchased a work, should I not be free to do with it as I wish? Unfortunately copyright law does not appear to work that way."

Seriously, is the drive for "fair" copyright really leading us to excuse blatant censorship? The video rental company may have bought copies of the movie, but they altered the "film" and THEN offered it commercially as the original work. Is that what we mean when we talk about follow-on creativity?

How far should those creator rights extend? I'd say right up to the nipples.

16 comments:

Russell McOrmond said...

I'm confused by these articles as always.

It is my understanding that you are a supporter of extended and compulsory licensing, and possibly taking the CCC proposal of private copying applying to all coyrightable works to other compulsory licensing. This would mean that as long as the companies making these modified works payed the required tariffs, then all would be considered OK (except narrow moral rights issues).

I guess I disagree and believe the creator should have far more of a say in the individual contracts involved - enabling a wider range of methods of production, distribution and funding for creators. There may be very narrow situations where extended or compulsory licensing makes sense, but they do more harm than good in a majority of situations.

BTW: sorry to often have views a bit different than Darryl and others that often get lumped into some fictional 'same side' of the conversation ;-)

John said...

What you call narrow issues, others might call fundamental issues. That should make the folks who consider the CCC "fundamentalists" happy.

Do you not see an incredibly important freedom of expression component to the Kate Winslet story? If the original creators cannot maintain control over the integrity of their work, what's to stop someone from distributing it as original with whatever changes they choose integrated into the work? Again, this is the difference between book and text.

Geez, I really hate the way Spielberg makes Germans look so bad in Schindler's List. I think I'll clean it up a bit.

I don't know if there is a license -- or should be one -- to cover that kind of use.

Russell McOrmond said...

John,

I'm not the one who is making proposals that would disallow the creator from protecting the integrity of their work (both in the material rights and moral rights sense). Whether you realize it or not, that is the position of the collective society dominated CCC.

Situations where compulsory licensing is the right option is narrow, not this issue which is one of those many situations where compulsory licensing would get in the way of protecting the interests of creators. That is what happens with these types of exceptions to copyright: the regular way copyright works and protects the full interests of creators is replaced with right of remuneration.

Unlike the CCC, I do not believe that Copyright and creativity is only about the money, and protecting the integrity of the choices of the creator are sometimes more important.


Moral rights don't help in that they only apply to very specific circumstances where the reputation of the creator is harmed, which is not implicated by the example you brought up. It will also not protect me from collective societies trying to impose their business model on me, something that I consider quite morally offensive.


Even if moral rights were that broad to relate to your example, the USA isn't a full adherent to Berne and doesn't adequately offer moral rights in the USA. Rather than joining with those in the US lobby who falsely claim Canadian copyright law doesn't fulfill International standards, you should be joining with those who recognize that it is US law that is weak in a number of important respects: moral rights, performers rights (Rome convention issues), etc. All areas where Canada better protects the interests of creators than US law.

Infringer said...

John it is a pity that you have difficulty posing arguments, and instead resort to overstatements such as "censorship" and cheap quick shots such as "right up to the nipples." Your post does not actually come up with a rational argument for why this practice should not be protected in copyright law. In fact you make no argument at all. You talk as if your point of view is the only real point of view worth considering and look at other peoples views such as my own with disdain.

Now allow me to make a couple of rational arguments for why I believe what I do, and I would actually appreciate a similar rational argument in return pointing out what my fallacies are and what reason you have supporting yours.

1) first sale doctrine. The companies in question were not renting out more copies than they had purchased, but were only renting out modified copies of legitimately purchased products. Therefore no argument can be made that there was piracy of any sort.

2) private property rights vs. intellectual property rights. My strong belief is that your intellectual property rights end were my private property rights begin. I.E. if you went out and bought a picture or other work of art you should be free to edit it as you see fit. Buy a landscape for example and you don't like the cabin off to the left, cut the left half of the picture off and reframe it and display it on your wall. You own the picture, how you present it is your business. The same I believe should apply to film or any other medium. What business does anyone have dictating how I enjoy something I purchased. It is mine damn it. I'll enjoy the way I want too.

3) they are providing a service. Just as you should be able to format shift works you've purchased, and/or pay someone to do perform that service for you. you should be able to edit your artwork, (as argued above) or pay someone to perform that service for you. None of the customers of the rental companies thought they were getting anything other then what they got. They knew and wanted the edited versions and this company was providing that service for them. This is why your cries of censorship are so for off the deep end.

Please John give me an argument and tell me why this is wrong. don't just offer me contempt.

Infringer said...

John it is a pity that you have difficulty posing arguments, and instead resort to overstatements such as "censorship" and cheap quick shots such as "right up to the nipples." Your post does not actually come up with a rational argument for why this practice should not be protected in copyright law. In fact you make no argument at all. You talk as if your point of view is the only real point of view worth considering and look at other peoples views such as my own with disdain.

Now allow me to make a couple of rational arguments for why I believe what I do, and I would actually appreciate a similar rational argument in return pointing out what my fallacies are and what reason you have supporting yours.

1) first sale doctrine. The companies in question were not renting out more copies than they had purchased, but were only renting out modified copies of legitimately purchased products. Therefore no argument can be made that there was piracy of any sort.

2) private property rights vs. intellectual property rights. My strong belief is that your intellectual property rights end were my private property rights begin. I.E. if you went out and bought a picture or other work of art you should be free to edit it as you see fit. Buy a landscape for example and you don't like the cabin off to the left, cut the left half of the picture off and reframe it and display it on your wall. You own the picture, how you present it is your business. The same I believe should apply to film or any other medium. What business does anyone have dictating how I enjoy something I purchased. It is mine damn it. I'll enjoy the way I want too.

3) they are providing a service. Just as you should be able to format shift works you've purchased, and/or pay someone to do perform that service for you. you should be able to edit your artwork, (as argued above) or pay someone to perform that service for you. None of the customers of the rental companies thought they were getting anything other then what they got. They knew and wanted the edited versions and this company was providing that service for them. This is why your cries of censorship are so for off the deep end.

Please John give me an argument and tell me why this is wrong. don't just offer me contempt.

John said...

Darryl,

I would suggest that you have never even come close to understanding the argument I have offered, concerning the difference between book and text, a key distinction I have tried to make for you several times. Furthermore, everything you've twice written in your last comment suggests to me you simply don't want there to be a difference, which strikes me as hardly a rhetorical postion worthy of respect.

You need to accept that you and I will probably never agree on copyright. I accept that. Furthermore, I believe we won't find this agreement because you are wrong. Is there any point in my offering you any more arguments? I don't see it. I accept your wrongness, and move on. I simply don't have time to keep going over this for you.

And Russell, I can assure you that if the CCC is truly making policy suggestions that will have an unintended negative effect on a creator's right to integrity, then the CCC will change its recommendations. Tell me, do you think "infringer" is capable of such flexibility?

In the meantime, thank goodness the CCC is still insisting on a position in this debate if "infringer" is considered a respected representative of consumer concerns.

Infringer said...

Yes John I do understand your distinction between 'book' vs 'text'. AKA individual copies vs copyright.

Using your terminology what we are talking about here is 'book'. It is rather difficult to go into a DVD however and rearrange the molecules so as to make the changes to the original copy (book) therefore they have to copy it and make the changes to that copy. They do not however rent out both at the same time. The altered copy is distributed INSTEAD. Soooo, we are talking about 'book' here, NOT 'text'.

Now if you have no objection to what I do with your 'book' then why do you object to what I do with the DVD?

Also, I do fully accept that we will likely never agree on copyright. That should not mean however that we can't both try to gain an understanding of each others positions. I think we agree that copyright is a monopoly with arbitrary terms dictated by government. And I think where the line is drawn regarding what behaviour is acceptable and what is not therefore becomes a subject of debate. Albeit, a debate you and I are at opposite ends of. That does not mean that we should not try to understand each others perspectives. To simply cast off my arguments as wrong without any sort of counter arguemnt I think is very narrow minded.

Infringer said...

John I also find it very rich, that you have so much difficulty respecting my argument when at the same time you also have difficulty mounting one of your own.

In this particular case you have cried censorship several times. I have challenged you on that and you have failed to justify it.

The second point of my first comment to this page argued about the conflict between private property vs intellectual property. I had hoped that you would understand the distinction between these two is the same as your terminology of book vs text. Apparently you did not understand this and I hope my last post clarified this for you.

If you cannot understand my argument sufficiently to justify a rebuttal. Please at least have the decency to justify your own assertions of censorship. That one is your argument so hopefully you can defend it.

John said...

"It is rather difficult to go into a DVD however and rearrange the molecules so as to make the changes to the original copy (book) therefore they have to copy it and make the changes to that copy."

With this, you prove you have no idea what I mean when I say text. I will not try to explain it again. I will instead trust that if anybody has bothered to follow this blather to this point, then THEY at least have understood.

Denying that an argument has been made does not in fact mean that an argument has not been made. There is a difference, whether you accept it or not.

Find it rich if you will. I couldn't care less how you find it. I find your continued defence of the censorship imposed on the text of Titanic to be despicable. On the other hand, I find your inability to discern the censorship hardly surprising at all, given everything else you've written here.

Is this what you meant when you said you were looking forward to picking holes in my arguments? When do the holes appear?

Infringer said...

Wow. What a way to shut down a debate!

"With this, you prove you have no idea what I mean when I say text. I will not try to explain it again. I will instead trust that if anybody has bothered to follow this blather to this point, then THEY at least have understood."

First of all John, you didn't explain it the first time. Let alone again. To find your distinction between 'book' and 'text' I had to go to some of your Facebook posts where you said:

"They did not buy the original production of the film (what in my work I call my text), and have no right whatsoever to alter it to better reflect their values."

and

"I'm not talking about wanting to protect a single copy of my book; I want to protect my text. If you buy a copy of my book, I expect no more payment from you, even if you resell that book to a used book store. But you can't take the text that underlies that book and start pumping out your own editions of John Degen's novel."

So if you are not talking individual copies vs. copyright here, then you are right, I haven't a F#$% clue what you are talking about, and I think you'll find no one else does either. Maybe Russell can help me here since you are unwilling. Russell, can you read John's mind?

I am at least doing my best to both make my position clear and at the same time understand yours. I wish you were at least willing to clarify your position (even if you can't see mine) when I obviously have no idea what you mean when you say text.

Feel free to not defend your censorship claim. But if you are trying to convince other people of the merits of your argument (not just me) I would have expected you to want to do so.

Infringer said...

Looking back at some of your debate with Russell I have to argue further.

Where you say: "Do you not see an incredibly important freedom of expression component to the Kate Winslet story? If the original creators cannot maintain control over the integrity of their work, what's to stop someone from distributing it as original with whatever changes they choose integrated into the work? Again, this is the difference between book and text."

Two important points need to be made here

1) we are talking about editing here, not wholesale changes. They are only removing things not adding anything. So your Schindler's List example does not apply. It is the same as ripping pages out if a book, or cropping a photograph. Should you not be allowed to share a book after pages have been removed? Should you be prohibited from ripping individual chapters out of a book and sharing them with your friends? I saw them do this on an episode of M*A*S*H once. Should you be prohibited from taking the oil on canvas painting in your living room, cropping it and rehanging it elsewhere?

2) They are only distributing as many copies as they have purchased. So again this comes down to a conflict between physical property rights vs intellectual property rights. We aren't talking about new art being created here. This is old art meets a pair of scissors. The artist has been duly compensated, and again I think that physical property rights must trump intellectual property rights.

Russell McOrmond said...

Dear Pseudonymous Coward (AKA: Darryl ;-)

You may have noticed that you walked into a hornets nest. I don't think it is something worth you and John getting really upset about. It is one of those things you should try to understand what is at the core of the belief, and then quickly agree to disagree and move forward.


The conflict between multiple tangible and intangible property right holders is one of those complex areas that receives considerable attention in property law courses. When courses get to "Intellectual Property", the Supreme Court case Th├ęberge v. Galerie d'Art du Petit Champlain inc. from 2002 is used to discuss that complex balance of competing rights.

That case goes directly to what you are discussing, and the views of both you and John are reflected in the debate that happened between these judges. It is also one of the distinctions between the Anglo/American and French/Continental tradition on Copyright/droit d'author. You can see that partly reflected in the differences between the judges from Quebec and those from other parts of Canada.

This is not a simple black/white, right/wrong thing, no matter how much you or John might think it is. And it isn't something you can just "explain" to someone else and they will then magically agree, any more than someone who grew up and remains a devout Christian will suddenly be "convinced" in a debate that Islam is correct.


Many people from the more traditional creator community (creativity focused on the individual, etc) found (and continue to find) that court case quite offensive.

Coming from a peer production background (growing up in a different belief system), I was largely baffled by the disagreement with that case until I started to see equivalents against my beliefs discussed in the copyright revision debate.


Their very strong desire to protect what they consider to be the artistic intentions of the author (beyond moral rights into what are clearly material rights) can in some ways be compared to the desire of participants in a peer production methodology to protect the interests of the group of peers from harm that might be caused by an individual participant (IE: need to waive right of integrity, beyond clearly licensing various material rights), as well as protect ourselves from impositions of royalties onto our creativity (Compulsory or extended "licensing").


In my case you see this me being totally offended by the suggestion that copyright should be negotiated like a labour contract (with people using alternative methods of production, distribution, and funding treated as "scabs"), or that any aspect of moral or material rights should be unwaivable.

It is sad how my interests in these areas, among others, were brutally attacked by the CCC/DAMIC in their proposals.

Infringer said...

Russell, I agree with you completely. I know John and I are on completely different sides and I really don't expect to convince him of anything. The only thing I was hoping for was that he may see my perspective as having some amount of validity. His inability or unwillingness to accept that there is even any justification for the existence of my position is, I suppose, what angers me. He does not respond to a single criticism or reply to a single question.

It seems my hope for an edifing (for both of us) rational debate on an issue with a lot of grey areas to be explored was ilplaced.

The problem I am gathering is that while I do appreciate his position, I also see many others in a sea of grey. John's perspective I am gathering has very little room for grey.

Pity.

John said...

Russell,

I'm having difficulty putting into words my extreme disappointment at what I can only see as some sort of defense of Darryl's position here. I expected much, much better of you on this. It is Freedom to Read week. I'm saddened by the two of you.

I'll say again to you Russell, that the purpose of any CCC proposal is NOT to attack you or your way of creating (or your religion for that matter). The CCC proposals focus on traditional creator concerns. You feel we are shooting ourselves in the foot, and it's your right to feel that way. I still think traditional creators must insist on traditional rights in this reform process, in case the traditional rights of the other players are strengthened while ours are not.

THAT is the context of the CCC statement. I don't see any reason why that position cannot be respected, even while we work out specific exceptions and new rights for the new ways of doing things. It's called integration, and I believe in it. I think copyright law should welcome you into it, and I will continue to work to that end, while making sure that while we welcome you we don't discard anyone else.

Darryl,

I find it hilarious you think I owe you an argument after all I've already written on this subject. Book/text is not the same as individual copy/copyright. You prove you don't understand that when you insist only an individual copy of Titanic was altered. Text exists even within individual copies of books. It's just editing, is it? And the producers of Titanic hired some video rental dudes from Utah as editors on their film, did they?

This is not about Theberge. It's about censorship. Saying something is a gray area does not absolve you of the responsibility to see clear lines of delineation within the gray.

Old art meets a pair of scissors? Just keep writing that stuff and putting it on your website. I want the rest of the country to know where you stand.

Go read a book.

Infringer said...

John, forgive me, but I don't know what 'all you have written on the subject' is. You talk about the distinction between book/text vs copy/copyright as if they are industry standard terms. I ask you for clarification but you don't provide it.

Please don't chastise me for not understanding your terms if you do not provide any sort of definition!

I showed you the reference I found where you do elude to the difference, but I have yet to find any concrete definitions. Am I really expected to comb the Internet looking for where you may or may not have provided definitions for these terms you have coined? I hardly think that is fair. Why can't you simply help me understand your point of view by providing your definition of book/text right here and now?

"This is not about Theberge. It's about censorship. Saying something is a gray area does not absolve you of the responsibility to see clear lines of delineation within the gray."

John, the whole point about grey areas is that there are NO clear lines of delineation. That's what makes it grey! That's what makes copyright such a contentious issue. It is a balance between necessarily conflicting rights. If you see a black and white issue with clear lines, then obviously you can not see any other perspective than your own. All the more reason for us users and amateurs in the baggage car to get a seat around your table.

As for censorship. Once again you are crying censorship with absolutely zero justification. This is not censorship.

1) The customers were asking for these edits.
2) other video retailers offer unedited versions. Hell, I bet these retailers would also give you unedited versions too if you asked.

How can you confuse choice with censorship. Henry Ford's model 'T' only came in black. Are you saying if some entripenour came up with a service to offer repainted model 'T's in other colours, that would be censorship too?

Come on. These are good arguments for why this is not censorship. In fact, I'd argue further that the studios insisting these versions be withdrawn are the true censorship. Who is really restricting what people are allowed to watch here?

Please offer up just one reasonable argument to support your claim of censorship. Just one.

Infringer said...

BTW, I read Fahrenheit 451 too. It was a good book. That was true censorship which required drastic measures with significant risk in order for the people to get around the government censorship.

Are you saying that possibly having to ask for an unedited version, or even worse having to go down the street to a competitor is an equivalent hardship for video renters?