Sunday, June 15, 2008

market me this

Negative reaction to the introduction of Bill C-61 has been a fascinating exercise in hyperbole, panic and outright paranoia. Check out this posting on Michael Geist's blog for links, mostly to those folks agreeing with him, but not always.

I've been reading comment streams endlessly, and it amazes me how completely anti-Americanism has become the central focus of this issue. Despite a decade-long process involving endless public discussion between Canadians who genuinely disagree on the policy directions here -- in straight numbers you have the now close to 50,000 consumers on Geist's Facebook group versus over 100,000 professional creators and many others whose livelihoods depend on strong intellectual property protections. And let me qualify my "versus."

Anyone willing to dig into the heart of this discussion will soon see that these are not two bristling camps separated by a wide moat filled with alligators. The actual discussions and disagreements are complex, detailed and unpredictable, with folks moving back and forth between the two territories as though they were separated only by a friendly and cooperative border -- like, for instance, the border between Canada and the US. I am one of Geist's 50,000 and I regularly disagree with him, as I do right now.

Yet the leaders of the protest side of the discussion continue to sell their argument with the rhetoric of comic-book style revolution and resistance, which of course feeds the comments streams and heightens the paranoia. I suppose one can't resist evil without first casting someone in the role of evil-doer. Yeah, you see where I'm going with this. Aren't we all just a little bit tired of the encouragement to make our policy decisions based on fear? For all the Bush- and Harper-bashing going on in this debate right now, the anti-C-61ers actually remind me most strongly of kool-aid drinking neocons bent on saving the world from nuance.

I'll end this posting with a question -- a genuine, non-partisan musing on where we are and where we might go:

Bill C-61 has a lot to say about digital locks and their circumvention. There is a whole segment of society -- the open access folks -- who think digital locks are the way of the past, who wish we could all just get along without having to lock our stuff up all the time. More often than not, I find myself hanging out with the free access folks -- if you haven't downloaded my freely accessible novel yet, please do so here -- because I can see that a trend toward mutual respect between creator and consumer is making digital locks unnecessary.

My response to laws protecting locks is to think "Okay, fair enough -- but I probably just won't buy locked stuff. Either that, or I will demand that the value I get from the product is greater than the inconvenience of the lock." I make free consumer decisions about these kinds of things and, more and more, so do a lot of folks. Here's the question -- if the market is encouraging the voluntary removal of unnecessary locks, then what difference does it make if we have a law protecting necessary locks?

Please try to answer the question without using the term "police state."

173 comments:

EccentricCanadian said...

"Yet the leaders of the protest side of the discussion continue to sell their argument with the rhetoric of comic-book style revolution ..."

Yet again more marginalizing. Brush us all one colour some more.

"My response to laws protecting locks is to think "Okay, fair enough -- but I probably just won't buy locked stuff. Either that, or I will demand that the value I get from the product is greater than the inconvenience of the lock." I make free consumer decisions about these kinds of things and, more and more, so do a lot of folks. Here's the question -- if the market is encouraging the voluntary removal of unnecessary locks, then what difference does it make if we have a law protecting necessary locks?"

What matters is whether day to day Canadians are going to suddenly be charged $20,000 with circumventing digital rights management because they have a dvd recorder that bypasses security. Does the punishment fit the crime? Are Canadians aware of the new law? Will rental movies be the only ones with digital rights management and bought movies without enabling us to make a backup copy for ourselves? Recording TV shows and keeping the recordings for any length of time will be illegal. Are Canadians aware of this?

You may make the argument that you are aware of what's going because you're on the internet more, but what about everyone else? Indeed, the more that know the more that are upset. Some because they want to continue downloading illegally. Others are appalled at the Conservatives, and Liberals, opening up seemingly law abiding Canadians to lawsuits.

Cafemusique said...

My biggest problem so far (and I'll admit that I haven't yet spent the time with C-61 that I wish to really understand it) is the way the government appears to be trying to "buy" consumers' support through recognizing some consumer rights in the Copyright Act. The devil in the details is that a copyright holder can deny access to those "rights" with technological locks. There is no balance there, if a consumer's rights under copyright law can be unilaterally removed by the copyright holder.

If the government wants to give consumers rights, grant them. But a company shouldn't have the right to use technological means to reduce consumers' rights regarding copyrighted works. For the government to attempt to have it both ways is to insult consumers and constituents.

Infringer said...

"Here's the question -- if the market is encouraging the voluntary removal of unnecessary locks, then what difference does it make if we have a law protecting necessary locks?"

Well, your first mistake John is in the presumption that locks are being dropped by the culture and technology industries. While that may be the current trend in the music sector, it is not the case with other industries nor is there any guarantee it will continue with the music sector. There is certainly no sign of abatement in either the cell phone nor the video sectors, and I suspect with laws like this you would soon see other sectors picking it up like the automotive sector.

The other thing you are not considering is that laws which are made to be very friendly to this business model, as these changes are, will have the effect of encouraging more of this behaviour.

Finally if entire industries adopt these consumer hostile methods on mass then you have an effective monopoly and there is no competition for consumers to go to. Try for example, to get an unlocked phone with any carrier and air time rates which reflect that you bought your own phone.

I hope this has satisfactorily answered your question. cheers.

Anonymous said...

Well, for one thing, it makes a big difference to people who have already purchased DRM'ed media. Canadians have been buying DVDs in huge numbers for over a decade, and now the government wishes to change the rules on us and criminalize perfectly reasonable private uses?

Before even contemplating a change like this, they should be making provisions for Canadians to return all affected media and devices for a full refund.

As for pointing out that our government has yielded to pressure from the US, well that's just calling a spade a spade.

Anonymous said...

John,

You've trashed the Facebook crowd a couple of times now along with the comic that is nothing if not creative. But what do you think of this bill? What does it actually do for you and for writers? The Writers Guild isn't too happy. Are you?

John McFetridge said...

It is tough to have any kind of discussion on this topic (or any other topic, really) without so quickly going to hyperbole. But I think you've done a pretty good job and if that was a "trashing" of the facebook crowd, it was pretty mild by online standards.

I still think is entirely a technology discussion, wrapped up in freedom of speech, privacy and consumer rights.

For years there has existed an agreement between producers of intellectual property and consumers - every book, every piece of recorded music, everything sold had a copyright agreement printed on it somewhere.

On the title page of books there was the, "All rights reserved, no part of this book may be reproduced without permission," line. Books were sold like this for hundreds of years with no one complaining about this agreement.

What we writers (and musicians and every other copyright holder) would like, is a version of this agreement (that has worked well enough so far) for the electronic age.

Now that technology makes it so easy to just ignore this agreement, the agreement is suddenly no good?

I still say, I would rather people steal the iPods and the internet connections and buy the art.

John said...

Discussion, good.

Some quick responses:

anonymouses (anonymice?) - I don't talk to no-names. Too much bad past experience. Please declare yourself.

eccentric -- there is an argument out there (Laura Murray, maybe - sorry, I've been reading all over the place) that the bill is encouraging litigation instead of cooperation. I don't disagree that some large companies will try to protect their shored up rights through the courts, but I think they'd be making a huge mistake if they did it in a frivolous manner. The consumer is too savvy, and has too much choice -- with undoubtedly more choice to come, much of it open access.

I would ask you to please recognize that the creator interest in all this is not cash, but respect. We want to make our living through a respectful market relationship with the consumer, not lawsuits. Also, I think the average consumer engaged in illegal private copying is only subject to $500 at any given action. That's a speeding fine. A large one, but still.

Finally, for marginalization, you should read that comic book I linked to.

cafe -- I think it's disingenuous to suggest the gov't is playing three card monty with consumer rights. These rights were asked for, and delivered, with balance or the copyright holder. The lunch, she is not free.

I say again, if you need to break a lock to use the thing the way you want to use it, don't buy the locked thing. Companies absolutely should have the right to lock their stuff away -- and increasingly, they'd be committing suicide to do so unless what they are offering is good enough to withstand the need for lock breaking. The iPod is a great example -- for every one person that wants to get inside that thing, there are thousands who are very, very happy with their experience.

I think the bill puts the right kind of ethical pressure on everyone -- consumer and merchant. That said, I reserve my full response to the bill for when I've consulted more widely and considered longer. I'd advise others to do the same. I am happy we have legislation to talk about finally. I like the law.

infringer -- as usual, your devotion to past home truths, in this case the power of the free market, is fleeting when they no longer work for you. If you don't want the locked cell phone, buy the unlocked competition. If there isn't one -- wow, what a hole in the marketplace just crying out for investment.

Now, as I've said before, if you want to start a Facebook group about unfair media and telecommunications concentration, sign me up. Uncontrolled monopolies scare me.

McFetridge -- we should have an enormous and expensive beer at an FC game one of these days. Were you there on Saturday night? -- brilliant goals by Ricketts, and Dichio was inspired.

I agree with you that when a technological loophole appeared, the traditional copyright agreement was quickly ignored in favour of free stuff. Denying that reality is just dishonest. The notices are on intellectual property for a reason. Just because you can ignore them, doesn't mean you should be allowed to. But then, I perform a full stop at country stop signs in the middle of the night.

John McFetridge said...

Yes, it was only a matter of time before Ricketts exploded. What will this team look like with Guevara back?

Can do - should do. Makes me think of the LRT in Calgary - and many other cities - that operate on the honour system. Even some streetcars in downtown Toronto. The loss of revenue from people getting on and not paying was determined to be less than the cost of the enforcing of the collection of the fares.

Wouldn't it have been great if the same had held true for copyright material? But it didn't.

An under-regulated free market is like a soccer game with the world's worst refs.

And yes, soon I'd like to take you up on that beer at BMO sometime this summer.

Cafemusique said...

I'm sorry, John, but I'm not seeing the balance. If a copyright holder can unilaterally deny a consumer rights, does a consumer really have those rights?

Flipping the question, why do copyright holders using technological measures deserve greater protection than other copyright holders? I come at this as a composer. Do I deserve greater legal protection if I deliver my compositions as encrypted computer files than if I deliver them as paper scores?

Why should the legal framework for copyright not be technologically agnostic?

Infringer said...

Hi John. Before the bill came out you were very critical of the strong negative response towards a non-existent bill. When the bill did finally appear, all the concerns that were voiced proved to be real.

In this blog entry you are critical of those negative responses being to anti-American. While I disagree, and I think it is simply anti-bad-legislation made from an American model, it is interesting to note todays column by Geist which indicates that the US strong armed us into following their idea copyright reform instead of other national and international standards. Perhaps a little anti-Americanism was called for after all.

Regarding you proposition that if the all the current cell phone companies are behaving in an anti-competitive manor, then someone should just jolly well go out and start another national carrier to compete. Were you being serious? I really don't know how to respond to that. It's quite absurd. Would you also say that with the phone and cable companies now practicing bandwidth throttling that an opportunity now exists for someone to go in and start another phone or cable company to compete?

EccentricCanadian said...

"The consumer is too savvy, and has too much choice -- with undoubtedly more choice to come, much of it open access."

Sure the average parent is going to be aware that their child is stealing music. Now jimmy, don't steal music today be consumer savvy and go listen to cbcradio3.

"Finally, for marginalization, you should read that comic book I linked to."

I skimmed through the comic book you linked to. It really didn't interest me. I did read one of the comments on the comic book.

http://www.michaelgeist.ca/content/view/3022/125/

Comment 2

"a freakn comic..
anti-americanism at its worst
welcome to douche-land, population:you"

Beyond that there were three comments in favour of it. I guess that shows how much of the incensed public likes it. If the Fair Copyright crowd is indeed as crazy as portrayed why are there not 100 comments saying "Hear Hear", "I agree" and "---- the RIAA". So frankly I really couldn't care that Michael Geist and Howard Knopf thinks its a great idea. I think It gives off the wrong image. It makes you post it on your blog as a summary of what the Fair Copyright for Canada believes in and how they present their ideas. I'm not linking that comic book to anyone because they wouldn't take this issue seriously.

"I would ask you to please recognize that the creator interest in all this is not cash, but respect. We want to make our living through a respectful market relationship with the consumer, not lawsuits. Also, I think the average consumer engaged in illegal private copying is only subject to $500 at any given action. That's a speeding fine. A large one, but still."

Notice I mentioned $20,000 for circumventing digital copyright protection. $20,000 for bypassing digital copyright protection to copy a song to your ipod. Lovely. The $500 copyright infringement is being hotly debated because the Conservatives haven't been forthcoming on whether its just a $500 speeding ticket as you say or $500 times your entire illegally gotten library. At which point all the violators of the copyright law better run from the long arm of the law. People on the Fair Copyright for Canada group are saying they have roughly 1000 stolen songs. $500 X 1000 cds = $500,000.

"I would ask you to please recognize that the creator interest in all this is not cash, but respect."

I already agree with you on this aspect.

John McFetridge said...

"I come at this as a composer. Do I deserve greater legal protection if I deliver my compositions as encrypted computer files than if I deliver them as paper scores?"

You certainly deserve equal legal protection, but because the technology is so different 'equal' is a little tough to work out. we're working on it, it won't happen overnight and frankly, the hyperbole doesn't help.

People keep talking about balance, and it would be great to explore that. The easily-copied and transferred around the world in seconds technology has changed the balance that once existed so much.

Your paper compositions all came with a note at the bottom that said, "Used by permission," or "not to be copied," or even, "Not for resale." It didn't matter so much, because it wasn't possible (or was difficult and not practical) until recently for someone to copy your paper composition onto their computer and give it to a hundred people in a hundred different countries in ten minutes. And leave it on a server so that in the future anyone who wanted it could just go get it.

It's the technology that has changed the balance. None of these complaints were ever made about your paper compositions, no one ever said you should print them up and give them away for free - the balance was fine then.

darryl said...

John McFetridge wrote: "I still think is entirely a technology discussion, wrapped up in freedom of speech, privacy and consumer rights."

I couldn't disagree with this statement more. This is entirely an issue of rights. Technology is simply the means by which those rights are either enforced or infringed.

The problem we are facing now is that technology has given the tools to consumers to easily infringe the rights granted by Parliament to creators. This legislation is a response to reassert those rights. "Shore up" as as John has said. The problem is that there are very nasty side effects. In order to assert copyright it is necesary to infringe real property rights.

This legislation throws first sale doctrine out the window, locks fair dealings behind a digital lock, and takes away my private property right to do what I want with my property.

I have no problem with various industries putting digital locks on their devices. But if they sell that device to me they should not be able to prevent me from removing them. If they want to keep them on, then they should have to keep ownership of it and rent it to me instead, using contract law to prevent me from breaking the locks.

If I buy an iPod or a CD or anything else, then it is mine and I should be able to do what I want with it. If they want to prevent me from doing so, then they can keep ownership of it and rent it to me instead forcing me to sign a contract which says I wont tamper with it under penalty. There is nothing under current law which prevents them from doing this. It would be more honest and it would not infringe my rights as this current legislation does.

John McFetridge said...

"If they want to keep them on, then they should have to keep ownership of it and rent it to me instead, using contract law to prevent me from breaking the locks."

I suspect we'll see a lot more of this. Less hard drives in peoples' homes and more 24/7 connections - we never had a problem paying cable TV bills or ISP bills.

In some ways this is really a struggle between ISP and content providors, as consumers have shown their willingness to pay for the material at least once (well, twice, because there's the hardware purchase and then the internet connection - we merely balk when it comes to tossing some pennies to artists).

"If I buy an iPod or a CD or anything else, then it is mine and I should be able to do what I want with it."

But there have always been restrictions on what you can do with things you pruchase - it's always been illegal for you to reprint whole books and stand on the street and sell them, or even give them away in bulk. It's always been illegal to make thousands of copies of recorded music. It's just never been such an industry before now.

Oh sure, there have always been bootlegs, I had my share of Springsteen live in Amsterdam bought at Dutchie's Record Cave in Montreal, but it is vastly, physically, different than the bootleg sites and I can go now and download everything. It's the technology that's made it different.

Maybe things were always out of alignment, maybe the balance was way off. I just don't remember anyone complaining about "consumer rights" in the days of photocopiers and expensive vinyl record pressing.

Look, if what was going on was people copying the CD to their iPods and their home computers the record companies would still be pissed off, just like they were when cassettes hit the market. Maybe they'd even be appeased the way they were then with a tax on blank cassettes - and we'd be pissed off about that, like we were then.

But what's going on now is quite different and affects more industries. It's possible paper books will be phased out by publishers (whether consumers want them or not), certainly textbooks are going that way, and then it's a free for all. I just reviewd the book "McMafia" for the Toronto Star and what's going on now is global organized crime simply ignoring copyright law. The saddest thing for me in the book was how in every country in the world, and with every product (smuggled cigarettes, drugs, DVDs, everything) consumers never have a problem trading in illegal goods.

Oh sure. we'd never go into a store and slip a CD into our pocket and walk out, but we download them everyday, in huge numbers.

I'm sure you, as an individual, think it's the same thing to shoplift one of Cafemusique's compositions written out on paper as it is to download that same composition from a pirate site - but you're already in the minority, and soon that difference won't even be an issue.

darryl said...

"But there have always been restrictions on what you can do with things you pruchase - it's always been illegal for you to reprint whole books and stand on the street and sell them, or even give them away in bulk. It's always been illegal to make thousands of copies of recorded music. It's just never been such an industry before now."

Sure, and there have always been limits on free speech too. Does that mean I should not object if someone physically tries to gag me? The problem is that these locks prevent you from using your property in perfectly legal ways as well. They do not discriminate well.

My point is that the tools already exist for them to pursue this DRM business model if they want, through contract law, and in such a way that it does not infringe my legitimate private property rights or my 'fair dealings' rights.

I think they don't want to do this because they will have to be honest about who really owns the material. Not being able to "sell" it means they wont get as much money for it. They would have us in effect subsidize their bottom line with the loss of our private property rights.

Is that fair and balanced? Only if you are FOX news I think.

darryl said...

That's interesting blogger seems to have two profiles for me "Infringer' AND 'darryl'.

John McFetridge said...

If it's okay with you, I'll call you Darryl.

"The problem is that these locks prevent you from using your property in perfectly legal ways as well. They do not discriminate well."

Yes, this is the problem. The technology has opened a huge door for all kinds of activity - legal and illegal - that didn't really exist before. It will take a while and a few different laws and bills to get it right - that's the way things work.

But looking at the other models of distributing copyrighted material - cable TV and now satellite radio, as examples - what we see are the points at which consumers are willing to pay. It won't take industry long to realize that's the only profit point. It's like the only people still around who made money off the gold rush sold picks and axes and clothing.

The only people making any money off the internet are ISPs.

Based on our history, what we're looking at are steadily increasing internet connection costs with graduated access - like cable TV with its "premium" packages. You want access to all recorded music - that'll be five hundred bucks a month. You can listen to whatever you want, whenever you want - but you won't "own" it. You won't like this, but millions of other consumers will find it acceptable.

As usual, the only people who will lose out are those without the means to buy the computers, the iPods and the internet connections.

EccentricCanadian said...

Well my text search reveals no "levy" so I'll add in this bit into the controversy.

There exists a levy on cds and ipods for the sole purpose of recouping losses from copyright infringement. Yet bill c-61 doesn't address whether these new laws are going to get rid of such a levy. Are we to be taxed up front for being thieves as well as hit with massive fines in the courts John?

David said...

I think one major problem with DRM is that market forces won't have enough power to away from it.

If I want to buy an unlocked cell phone: for one, I'm not even sure if that's legal under the proposed law. If I'm allowed to purchase one, I would have to buy it from overseas, which means a lot of time and hassle for me. Once I do get it in the mail, it is relatively easy for every telecom to introduce some sort of digital lock or encryption only allowing 'authorized' phones access to their networks. Now, if I wanted to use my phone on any network I would start to run afoul of the anti-circumvention clause. (Of course, anyone who keeps buying their phones from within Canada won't see any changes in their service at all)

I have only two alternatives. Of course, I could simply not buy a phone and take the hits to my social (and possibly professional) lives. I could choose to sign up with a different network, but there are very few to choose from and there's no guarantee that all networks won't adopt their own scheme.

The gap left for entrepreneurs is also prohibitively expensive to exploit. Canada's very large, with lots of rural area. Any new cellular provider must either build their own cell phone towers or piggyback off of someone else's.
If they try to lease tower service, there's no reason the company that owns it can't force you to use the same DRM on your phones, and/or make the license cost just as much as building them yourself. Building a national coverage of cell phone reception is obviously expensive, but even trying in a small area (such as Toronto or Vancouver) has problems - namely your clients' cell phones won't work anywhere else.

Another case can be made for DRM-laden music. There's a strong bet that anyone reading this will not buy a CD that has DRM measures on it, but there will still be many people who just don't know about it or just don't care. iTunes will still sell music successfully. The alternative is to only buy from small independent labels and bands, of whom most people probably never hear about, or simply not buy music at all. For CDs, the big corporations can unanimously decide to put DRM on every CD. The alternative in most cases is simply to not buy any music whatsoever. I can't see many people with the resolve to do that - certainly not enough to push the record companies away from DRM.

With music (and movies) we also see another problem: America's economy easily dwarfs Canada's. Let's assume every Canadian stopped buying DRM-ed content. Currently, that means noDVDs or iTunes, plus whatever CDs have DRM - every Canadian has to accept not buying any new movies (or even music) at all. Let's assume that. But, because America still keeps devouring their product, the big labels could still turn a profit.

Here's another idea. Suppose the next big thing after CD, DVD, BR-DVD are high-capacity cards - the kind you can plug into your laptop, MP3 player, cell phone, camera, et cetera. Someone invents a method to cheaply mass-produce read-only variants of these with data pressed into them. Technologically, this is a good thing. These EVCs (Enhanced Video Cards) can have high-definition video and audio in a tiny, durable, long-lasting package. The mass production aspect lets companies print off thousands or millions at a time, cheaply.

The Big Corporations, after seeing the problems with DVDs, wanted several things in this new market.
One, all EVCs must use a proprietary encryption scheme. (I'm unimaginative: let's call it PES). Due to the nature of these things, a license to press EVCs with PES on them would be too expensive for individuals and many small studios.
Two, any EVC player must not support unencrypted EVCs. If a company releases an EVC player for home theatre systems that supports these, they are subject to fines and to have their license terminated. Sure, this means that grandmothers who want to put their photos on an EVC to show friends on their television won't be able to, but that's such a small market. Sure, many people wouldn't be able to legally format shift home movies and legally purchased VHS and DVD movies to the new format, but anyone who uses DeCSS (for DVDs) and DePES and RePES (to make EVCs) are all bootleggers, pirates, and hackers anyway, and we can criminally prosecute them and sue them for all they're worth under the anti-circumvention laws.


All in all, I've probably made a fool of myself with these examples. The point I was trying to make was that I believe the big American entertainment companies have enough power to create an effective monopoly, one that is not subject to market forces and can effectively close off the market to newcomers.

EccentricCanadian said...

I'm aiming that last statement at the website owner not John McFetridge .

darryl said...

"Yes, this is the problem. The technology has opened a huge door for all kinds of activity - legal and illegal - that didn't really exist before. It will take a while and a few different laws and bills to get it right - that's the way things work.


So we are agreed that this bill creates a significant problem. If you also agree that the necessary tools already existed in the form of contract law, for the various industries to legally protect their digital locks (You have not commented on this, one way or the other), then you should conclude that this bill creates problems and solves none. It is therefore worse than useless.


"But looking at the other models of distributing copyrighted material - cable TV and now satellite radio, as examples - what we see are the points at which consumers are willing to pay. It won't take industry long to realize that's the only profit point. It's like the only people still around who made money off the gold rush sold picks and axes and clothing."

Sorry John, I'm not really sure where you are going with this one. What are the points at which consumers are willing to pay?

John McFetridge said...

"The point I was trying to make was that I believe the big American entertainment companies have enough power to create an effective monopoly, one that is not subject to market forces and can effectively close off the market to newcomers."

Let's call them big multi-nationals and you're bang on (Canadian, European, Japanese - all companies have exactly the same business model) and usually the same shareholders.

Even though the comments weren't aimed at me, I'm betting Degen would agree that more discussion is good and no one's making a fool of themselves.

Future technology is a risky prediction, but I'm going to keep coming back to that wire coming into our houses as the only delivery system for all this stuff - mostly because it's the only successful, profitable, control-able model we have and business has pretty limited imaginations.

Most consumers won't care, they're shelling out so much for cable and internet connections and land lines and cell phones now, they'll think they're getting a deal. It may even be sold as, "Why store this stuff on unreliable hard drives, discs, whatever, in your oen home, let us keep it safe for you and you can use it whenever you want."

And Darryl, I read the short story on your blog and I think it's very good. The only thing, though, looking at the market in Toronto now, what with Sams gone and pretty much all indie CD stores gone and the rest on the ropes, how would the story play out if you had to remove the part about, "I bought it from a legitimate retailer!" and your only option to view/listen/read was through that wire coming into your house?

John McFetridge said...

"Sorry John, I'm not really sure where you are going with this one. What are the points at which consumers are willing to pay?"

The internet connection.

and the hardware that constantly needs to be upgraded.

Russell McOrmond said...

"if the market is encouraging the voluntary removal of unnecessary locks, then what difference does it make if we have a law protecting necessary locks?"

I don't think you ever understood what is being locked, who owns what is locked, and who retains the keys.

The lock which copyright holders incorrectly believe they hold the key for only limits the content to specific brands of devices. The lock that is the cause of most of the problems is the lock on devices, which is owned by neither the confused copyright holder nor the device manufacturer who retains the keys.

The controversy has never been about "digital locks", but a critical question about who retains the keys to these digital locks. The claim that this is just like locking doors to keep "theves" out is entirely invalid -- as it is a lock being used by someone other than the owner to keep the owner out!

"I think it's disingenuous to suggest the gov't is playing three card monty with consumer rights."

Given both technology and contracts can be used to deny these activities, they are not "rights" in any way at all. All the government did was change the default in the obscure case where these activities aren't mentioned -- there was no addition to fair dealings at all!

Russell McOrmond said...

"The problem we are facing now is that technology has given the tools to consumers to easily infringe the rights granted by Parliament to creators. This legislation is a response to reassert those rights."

Here is one of the fundamental divides in the debate. There are those who believe that copyright should be targeted on those who infringe, and there are those who believe copyright should target the technologies which make it easier to infringe.

This bill is the latter - the primary target is the manufacturers, software authors, and owners of multi-purpose technologies that might be abused to infringe.

darryl said...

John McFetridge said: "The internet connection.and the hardware that constantly needs to be upgraded."

So in regards to the price point for content, are you saying people are only willing to pay for the hardware to receive it. Not the content itself?

Is there any reason you did not answer my comment before this one? Do sufficient tools exist so that companies wanting to use digital locks can do so, and protect them legally with contract law INSTEAD of copyright law? I would like to hear your perspective on this.

Russell said: "Here is one of the fundamental divides in the debate. There are those who believe that copyright should be targeted on those who infringe, and there are those who believe copyright should target the technologies which make it easier to infringe."

I agree completely. This doesn't conflict with the point I was making at all. I'm not sure if it was suppose to though.

John McFetridge said...

"Is there any reason you did not answer my comment before this one? Do sufficient tools exist so that companies wanting to use digital locks can do so, and protect them legally with contract law INSTEAD of copyright law? I would like to hear your perspective on this."

Well, yeah, I don't know enough about contract law, and certainly not in enough detail in enough jurisdictions to make any useful comment.

I would suspect if such tools existed, though, it would be a lot tougher for me to get my hands on copyrighted material without paying for it than it is now.

The problem is we like to make analogies and none really work. It's not really like locking the doors on our house, or someone who doesn't even own the house locking the doors (although looking at my mortgage and my property tax bills, I'd have to say, there are plenty of people who could lock up my house if I slipped up the slightest bit).

But I'll try. For us artists, it's like leaving our bikes unlocked downtown. When they get stolen people say, "Well, it's your own fault, you didn't lock it." So, we're looking for a way so that our work doesn't get stolen. We sure want it to be available as much as possible to any consumer who wants it, but we're willing to limit that availablility - we just haven't figured out how yet. We have to deal with third parties, publishers, record companies, movie studios. We're not thrilled with the deal wwe have from them as it is, and we know it'll only get worse.

So, as artists we're feeling singled out in this whole thing. No one's fighting for my right as a consumer to get free/cheaper internet connections or free computers or e-book readers or music players or phones (the locked-unlocked issue is being raised but the ever-incrasing phone bill is just something we have to live with). All those contracts between consumer and supplier are take it or leave it (and the phone contract is pages long).

Maybe this will help. Right now you can go to Amazon to buy my book. But they don't have any in stock. Don't worry, they'll still process your purchase and take their cut, the sale will just be a used book through a third party dealer.

So, in this transaction the consumer has paid for the internet connection, paid a fee to Amazon, paid the used book store that has the book and paid the shipping. The only person involved in this who doesn't get a cent is me, and all I was looking for was a buck - the cheapest part of the whole deal (oh yeah, and my publisher is out, too).

I wish there was more of a history of consumers saying, "I know I can take this product and I won't suffer any consequences myself, but it's just not morally right."

No, we want it and we want it for free if we can - we'll pay any multi-national communications conglomerate a monthly fee, fine, but that's it.

Russell McOrmond said...

John McFetridge,

I understand your pain -- people are infringing your copyright, and you want something done about it. I don't fault that.

What I fault is that rather than using the existing legal tools that allow you to sue the people who have chosen to infringe your copyright, you appear to be supporting laws which target everyone else.

Yes, I'm saying existing tools -- Current Canadian copyright law provides copyright holders all the tools necessary to sue them for infringing their copyright. The claims that it is legal to share content online without permission is simply wrong!


If you don't want to sue your potential customers, and are worried about the public relations problems from that, then that is your choice. But don't support laws which target *me* as a software author and technology owner, and try to shift the blame for someone elses infringement of your rights onto me.

darryl said...

John McFetridge said:
"Well, yeah, I don't know enough about contract law, and certainly not in enough detail in enough jurisdictions to make any useful comment."

fair enough. but I'm sure the same comment can be said for copyright law. I'm sure it is no less complicated.

"I would suspect if such tools existed, though, it would be a lot tougher for me to get my hands on copyrighted material without paying for it than it is now."

Right. and that's the idea!

"The problem is we like to make analogies and none really work."

I totally agree with you here!


"Maybe this will help. Right now you can go to Amazon to buy my book. But they don't have any in stock. Don't worry, they'll still process your purchase and take their cut, the sale will just be a used book through a third party dealer.

So, in this transaction the consumer has paid for the internet connection, paid a fee to Amazon, paid the used book store that has the book and paid the shipping. The only person involved in this who doesn't get a cent is me, and all I was looking for was a buck - the cheapest part of the whole deal (oh yeah, and my publisher is out, too)."


I think this is where we completely diverge. Why do you think you should get a cut when the book is resold? You got your cut when you sold it the first time. I often build tangible things and sell them. If the person I sold it too turns around and resells it, I don't get paid again. That's fair. I'm not sure why you think you should.

"I wish there was more of a history of consumers saying, "I know I can take this product and I won't suffer any consequences myself, but it's just not morally right.""

And that is precisely why the current copyright regime does not work in a digital age and why we need to radically rethink the entire concept. I don't think the current copyright system can be carried into the digital age without causing significant and irreparable damage to our society. Our history is full of examples of entire industries that either perished due to new technologies or made real evolutionary changes to adapt. I think that is where our cultural industries are now and laws like bill C-61 are an attempt to defy the technology and maintain the status quo when the industries should instead be adapting.

John McFetridge said...

"I think this is where we completely diverge. Why do you think you should get a cut when the book is resold?"

Because it was the consumers intent to purchase a new copy. Amazon performed a kind of bait and switch that didn't affect its profit (or the ISP's) at all.

"Our history is full of examples of entire industries that either perished due to new technologies or made real evolutionary changes to adapt."

Here we agree. I think it's too bad that small countries like Canada will lose all of its cultural industries, but I suspect I'm in a minority. I doubt very many Canadians care whether Canada has artists or not.

Russell McOrmond said...

"I think it's too bad that small countries like Canada will lose all of its cultural industries, but I suspect I'm in a minority. I doubt very many Canadians care whether Canada has artists or not."

I care strongly about Canadian artists, and ensuring that they both have the technical tools to create and distribute their own works as well as having business model choices which allow them to get paid for that work.

And it is *because* I care about Caanadian artists that I am strongly opposed to C-61 which is anti-artist.

Please don't presume incorrectly that opposition to C-61 means opposition to artists, given artists aren't the primary beneficiaries of the act, nor are copyright infringers the primary target.

John McFetridge said...

We all agree the current bill is flawed.

Artists, though, have always been at the mercy of middle-men. Maybe the technology will make it easier to produce and sell the art directly. Nothing in our history gives me confidence in that. If engineers ran the world, maybe, but we went handed the damn thing over to the lawyers.

There is such a strong movement now to make copyright a thing of the past, I think that will happen because the multi-nationals can still make profits by delivering the material.

People will still pay their cable bills and their phone bills and their internet connection fees. Money will change hands.

Once it does, where it goes, who knows how that'll shake out? But what's happened is a change in ideology - the idea that there doesn't need to be a seperate payment for the content has taken hold.

That's not really anything to do with this bill, or with 'fair use' copyright or people's ability to use the media once they have it, but I see capitalism as a virus and it infects everything.

I'm sure if we made lists of what we believe is right and wrong they'd be identical.

Then, if we made lists about how to ensure that, we'd have nothing past, "trust me."

If among the top 200 visited websites on the Internet weren't Rapidshare.com, Megaupload.com, Badongo.com, Mininova.com, Mediafire.com, ThePirateBay.org, ZShare.net, 4Shared.com, IsoHunt.com, Easy-Share.com, Torrentz.com, and FileFactory.com, that would be easier to take.

Copyright simply isn't enforceable anymore and as long as profits can be made without it, bills like this will go the way of the dinosaur. But don't think art and cultural industries won't suffer.

Russell McOrmond said...

John McFetridge,

Here is where some of the disagreements come from. While there is a percentage of average citizens who infringe copyright, the vast majority do not. Keeping technology in the hands of private citizens won't eradicate copyright infringement, but it also won't eradicate citizen control over creativity, and people willing to pay for creativity will still be in the majority. From a purely technical standpoint (recording, editing, communicating content) it turns out that creativity and copyright infringement are identical.

The alternative that was proposed by the Clinton/Gore folks in 1995, and now being pushed by the "Conservative" government proposes that the control of this technology be in the hands of a few muntinationals. If you trust those multinationals over private citizens, then you will be in support of that direction. I believe this perspective is dangerous and has no rational historical basis. This is the direction that will wipe out Canadian creativity given it will only be the creativity authorized by the centralized gatekeepers that will ever be allowed to reach audiences.

I agree with you that there is a threat to creators, and agree that no possible future direction can be "perfect". Where we (largely fellow creators in this thread) disagree is which of the various policy proposals before us are helpful and those which are far more harmful to our interests.

John McFetridge said...

"Where we (largely fellow creators in this thread) disagree is which of the various policy proposals before us are helpful and those which are far more harmful to our interests."

Right. And it just feels like we're often left out of this, in what's usually phrased as a debate between "consumer rights" and copyright sellers - as opposed to copyright creators.

Like I said, we've always had to deal with middle-men and it's pretty much always been a hate-dislike relationship. Everyone I've ever spoken to who's made money as an artist has had a difficult relationship with their publisher/studio/record company. I have no experience in the area of software design (other thanpeople who are paid a salary, as opopsed to any kind of royalty) or game design, but I expect it's the same.

My faith in individual consumers (private citizens) has been eroded over the past twenty years. Of course, people tell me there was a time they didn't need to lock up their bicycles, but I doubt that's true.

One question comes to mind; do private citizens have any responsibility for the fact that so much media has been illegally downloaded (I know, group vs. individual is a tough area, but we do live in a society)? When the material was first made available there were no locks, no DRM, nothing. Then, file sharing sites opened up and were instant hits, millions of downloads a day.

I'm not suggesting that everyone be assumed guilty until proven innocent, but I put up with all kinds of inconveniences everyday because people "might" do something illegal. I guess some artists wonder if there's any sacrifice consumers are willing to make? It's very hard to find a balance.

John McFetridge said...

"While there is a percentage of average citizens who infringe copyright, the vast majority do not."

Do we actually know this? I mean, of the percentage of average citizens who are online and consumers of the material? Potential consumers, not the population as a whole (cause my Mom isn't going to download anything - legally or not).

I don't know a single person under 45 who hasn't downloaded something without paying.

When downloading first started I was amused at the amount of justifications people used to make it acceptable to themselves. "Only the huge record companies make money from these old songs now, anyway," and so on.

Now the issue is "consumer rights," to do "anything" with something after I buy it.

I sometimes wonder if we're totally honest when we talk about this stuff. If it's really so much a matter of principle, of individual rights - and how much is just wanting stuff for free.

This Bill has given us a gift, it's made the issue our rights as consumers and buried the issue of theft. We should almost be thankful.

Russell McOrmond said...

John McFetridge said...so many very interesting things, it is hard to keep up!

"When they get stolen people say, "Well, it's your own fault, you didn't lock it.""

I'm not convinced we are talking about the same locks. Have you ever read:

Technical Protection Measures (TPMs) and Educational Use of the Internet

In this article I differentiate different types of technical measures, and separate the ones where you are locking down something you own from those where someone other than the owner retains the keys.

"we never had a problem paying cable TV bills or ISP bills."

I'm curious -- do you believe that the price of gasoline for your car should be different depending on what brand of groceries you are carrying in it? I see this argument all the time from some Copyright holders that the fees people pay for communications services is somehow connected to the wide variety of business models used for what is communicated over the connections, when there is no such connection.

"No one's fighting for my right as a consumer to get free/cheaper internet connections or free computers or e-book readers or music players or phones"

Actually, we are. This is part of what the Net Neutrality debate is about, to ensure that people are charged relative to what the Internet costs, not what the monopoly providers can extract from us.

For some of us we are trying to make Capitalism work the way it says in the textbooks -- that the marginal price that people charge us should approach the marginal cost of production.

"Artists, though, have always been at the mercy of middle-men."

Except those who have chosen methods of production, distribution and funding that enable them to skip the middle-men.

"I have no experience in the area of software design (other than people who are paid a salary, as opopsed to any kind of royalty) or game design, but I expect it's the same."

Things are different partly because there isn't a presumption in software that royalties are the only (or best) method of payment. I am an independant software author who doesn't deal with intermediaries at all.

I get paid the one-time up-front costs for software development, and do not charge royalty fees. For software this is the most viable business method, and consider proposals to impose royalties on me to be as offensive as outright infringement.



"Do we actually know this?"

I see no actual evidence to suggest otherwise.

"I don't know a single person under 45 who hasn't downloaded something without paying."

That is an entirely different statement. You forget that there is a lot of content that is deliberately made royalty-free by its author. Paying royalties is simply one business model option, not the only way authors get paid.

The surveys that have asked about online behaviour have never asked relevant questions, or ever tried to differentiate between behaviour encouraged by authors from those discouraged/denied.

We also don't know how people would act if they were given the choice to behave honestly, as we have never given them that option. Having the only way to pay for content be for DRM-infected content only means less people will pay as the content is simply less valuable. Most television shows are simply not available for sale, so there should be no surprise that people are unlawfully sharing them.

The worse copyright law gets, the worse this situation will become. I suspect that there will be a massive jump in infringement cause by this bill if it passes. Then again, the justifications for infringement become easier and easier the more people hear copyright holder groups justifying bills like C-61.

If you don't like average citizens lumping you in with the intermediaries, you need to form an independent voice. This isn't the case so far, with groups like the CCC including collective societies (a business model intermediary) as members.


"buried the issue of theft"

As any conversation about Copyright should, given copyright infringement isn't anything like theft. See: Jefferson Debate.

John McFetridge said...

I don’t think anyone’s ever had trouble keeping up with me, but thanks for saying it like that instead of pointing out that I’m off on so many tangents it’s not really making sense.

Yes, I’m probably off when we talk about locks. The link to the full article on IT World Canada didn’t work, so I’m still not sure. I’m much newer to this debate than you. I really hadn’t considered how electronic transfer of books would affect publishing because very few people want e-books. Of course, now I realize it doesn’t matter what people want, they’ll take what’s forced on them – we always have, like it or not.

So, I like Godwin’s Law, and I’ve certainly seen it action many times. As for the Jefferson Debate, it doesn’t fit everything we’re talking about here. There’s a very big difference between the uttering of a single idea, and grouping ideas together into a product – a book or a piece of music or a film. The difference is tangible. The FLOSS model doesn’t apply at all to something in which the number of purchases needs to be fairly large. A one time sale to one person would require the cost of a book or song to be what you charge for writing a piece of software. It may total that in the end (that’s the risk we take) but each individual is charged about ten bucks. I expect your charge more than that for your software.

What we do is charge the publisher that one time fee (well, we’re suposed to get royalties, but so few of us actually do) called an advance and they try and recoup it through as many small sales as they can. So yes, it’s the publishers that would consider it ‘theft,’ not so much the writers and I now see the difference. I don’t think the house analogy works because there are other peoples’ interests involved – mostly the bank I borrowed the money from – sort of like that publisher’s advance. Once it’s paid off, it’s a different ballgame. I’ll let you how that goes with the mortgage in about fifteen years.

Really, we need a different model. Traditional copyright holders don’t very often want their work put into some kind of pool for others to use. Not so much for commercial reasons, but for artistic reasons. I mean, sure, I’ve been inspired by other writers’ work and I’ve learned from them, I’m standing on the shoulders of giants, but I don’t take what they’ve done and build directly onto it. Maybe you can do that in software, and maybe someday I’ll pick up where Margaret Atwood left off in Oryx and Crake and continue with those characters, but it would sure take a long time for people to get their heads around a change so huge to a thousands year old tradition – and that tradition has more to do with the art than with the commerce.

The difference between software design and something like a book or piece of music is that the latter is finished, closed and not to be ‘upgraded.’ That’s the whole point behind writing a book -- finishing the theme in a particular way, what went in the beginning affects the end and it’s all deliberate. Now, plenty of people like the idea of ‘shared world’ fiction, or open-ended stories, and that’s their right, of course, but it’s not for everyone.

Sure, musicians can make money performing, but I can’t. I got three hundred bucks to read at Harbourfront last year (so going back to that mortgage stuff, we see a problem), but books are simply different. They aren’t a performing art.

It seems as artists we will lose what remaining control we’ve had over the commerce part of our work. Publishers will stop paying advances - and who knows, perhaps cease to exist entirely – each individual writer will set up a web page and give away their work into some kind of shared pool like you do with software. I don’t undestand who will pay or why, (art doesn’t perform a function like software, people do live without art, sadly) but the truth is most writers make even less at it than I do, so they won’t be losing much. Except that respect Degen talks about. What we’ll lose is maybe only the perception that we have some ownership over what we’ve struggled pretty hard to create, but that’s almost all we have left to lose.

It still feels like we’re giving up a lot so people can copy stuff as many times as they want onto as many ever-more expensive gadgets and so everyone can treat our work as though they created it and “own” it, too.

John said...

Sooo, that's a lot of comments. I go away for a day and people start debating all over my place. I hope you haven't spilled anything on the rug.

I am NOT going to be much involved in this discussion. I am in Buffalo, New York, checking in with my secret American masters... I mean, writing for the week at the university here.

McFetridge is doing a fine job fending off the endless invitations to read Russell's essays elsewhere. No offense Russell, but please try to summarize a bit. There's only so much reading one man can do, and right now I'm trying to get through Doctorow's Little Brother. Entertaining in that "listening to a priest who thinks he knows how to talk to the kids" kind of way.

As I said in my original posting on C-61, chances are I won't like everything in this bill, but I do appreciate that it brings respect for creator copyright to the front of the discussion.

Russell, I 'm not sure why you think writers are offside on net neutrality, which I see as essentially a media concentration issue for the digital age. I happen to believe that the builders of original infrastructure should be allowed to profit from their investment, but absolutely not to the point of unfairly limiting competition. The problem with lumping all that into discussions of copyright is that folks start to equate an individual writer's demand for respect of their text with a conglomerate's stomping of competitors.

Or, to reference another annoying conversation, some folks start advancing offensive abstractions equating the burning of books with a consumer's right to control the things they buy. Fun is fun and all, but perspective please.

Can't the CRTC or someone else handle net neutrality? Does it have to be in this discussion?

I have always understood your distinctions on locks, but interestingly someone like cafemusique doesn't seem to get my distinctions on locks. Look at the educational exception in this very bill. It works to make sure the non-locked content IS NOT less privileged than the locked content.

The educators got exactly the PAM exception they were asking for, except they are told they must respect a simple copyright notice as much as locked content -- and this is portrayed as some sort of shell game. Is it any wonder traditional creators get upset? Our legally binding request for respect is treated by our country's educators as little more than an amoral inconvenience.

Russell, I think it's unfair to suggest that the existing law contains tools enough for traditional creators to enforce their copyright. You know as well as anyone that the debate has gone way past that, and that the essential philosophy of intellectual property is being challenged. We asked for a bill that demands respect for the value of intellectual property. And much of the criticism centres on the fact that this demand has now been made.

It's this criticism, and the ridiculous, cartoonish evil vs. good rhetoric being used that makes my skin crawl. Seriously, you can't get all high and mighty over Captain Copyright and then celebrate that blatant propaganda from Appropriation Art.

So, then, another question before I go away for another day of writing:

This law gives technology makers the right to lock out certain uses of their product before they sell the product, and no-one is then allowed to break those locks once they've bought the product. Is this then not a case of buyer beware? Various people have advanced the idea that the free market will fail on this, and unfair monopolies will spring up. So why then don't we address that unfortunate possibility within a Competition Act? That way, the (already limited) sanctity of intellectual property is respected, and the consumer gets the choice they deserve. No?

-- degen out

p.s. McFetridge, you are way too polite to Infringer. These debates are so much more fun when you get him hot under the collar.

darryl said...

"This law gives technology makers the right to lock out certain uses of their product before they sell the product, and no-one is then allowed to break those locks once they've bought the product. Is this then not a case of buyer beware? Various people have advanced the idea that the free market will fail on this, and unfair monopolies will spring up. So why then don't we address that unfortunate possibility within a Competition Act? That way, the (already limited) sanctity of intellectual property is respected, and the consumer gets the choice they deserve. No?"

So what you're saying is that all these nasty side effects we are introducing with a more complex copyright act we should try to fix through the competition act? Why do look for ways to make things more complicated when we don't need to? Russell is right. We do have the tools. As I pointed out to McFetridge, there is nothing stopping companies from renting out devices and content instead of selling them, and protecting their digital locks through contract rather than copyright. The only difference is that they would have to be honest about who really owns the item.

"p.s. McFetridge, you are way too polite to Infringer. These debates are so much more fun when you get him hot under the collar.

John, I fart in your general direction! Your mother was a hamster and your father smelt of elderberries!

John McFetridge said...

Okay, just checking in before I go to bed, but...

"there is nothing stopping companies from renting out devices and content instead of selling them,"

and that, in a nutshell, is what I'm most afraid of. Because in the long run, the rentals will be the only options available and they'll be more expensive.

We've spent the last twenty years being prepared to accept the idea of monthly payments instead of ownership - from leased cars to condo fees it's all about the monthly payments - the new business model doesn't want to sell us stuff, it wants to rent to us and keep us on the hook forever. It will be for copyrighted material, too, and that will be worse for many people than locked material.

Poor people, I mean, and no one involved in this debate cares about that at all. Allthis talk of open-access supposes that you have the computer and the internet connection and I'm sure with all this unlimited access to all this material that connection will provide, the price will go up.

And up and up.

But you're working on that, right? How's it going?

(oh, and Degen, over on the Red Patch Boys forum we're psyched about the CONCACAF Champions League - road trip to Mexico, baby!)



people will just not have any access to the material.

Russell McOrmond said...

To JohnD,

"No offense Russell, but please try to summarize a bit"

We know this doesn't work from the past. When I try to summarize rather than link, you then complain that my responses are too long.

The fact is that these aren't sound-byte concepts -- especially since we have the same goals (to protect the rights of creators) and yet most often have the opposite policy proposals.

We can't just both say "We are here to get respect for the rights of creators".

I've written and summarized more times than I care to try to count that the *ONLY POINT* to locking content in the way we are opposed to is for anti-competative purposes. Trying to make these types of digital locks a little less anti-competative through competition law is like trying to make water a little less wet.

If you are talking about some other type of lock for some other type of purpose, then lets talk about that separate thing and you will find that we aren't opposed to those locks where the owner retains any keys. We unfortunately don't have a unique word for this as each of the words we try to use gets co-opted by people who try to have it mean something else -- we had "DRM" for a while to mean these two locks where the owners don't retain the keys, but then various groups co-opted it to reference entirely unrelated copyright management practices.


The same thing with the Net Neutrality debate. Locks on content and devices for the purpose of centralizing control of communications tools is the identical issue to centralizing control over communications media. I have to presume that eithor people see them the same way (and want central control or not), or they don't adequately understand the issues being debated.

Those who want copyright to be respected should be trying to make it respectable. To me that is simple: clarify and simplify it, make it regulate the public activities people believe it does, ensure that it is enforced by law and not technology, and then work on educating people about the specific rules.

In a (relative to Copyright years) short amount of time copyright infringement would be as frowned upon as smoking. There is no way to eradicate infringement that doesn't involve eradicating either copyright itself or new creativity, but we can greatly reduce the problem from the current situation.

The current problem is that the NII policy direction and thus C-61 goes the opposite direction. In my analysis it will make copyright less respectable, and thus harms the interests of creators.



"The problem with lumping all that into discussions of copyright is that folks start to equate an individual writer's demand for respect of their text with a conglomerate's stomping of competitors."

No need to summarize this, as my comment remains the same. If you don't want to be lumped in with the conglomerates, you need to promote a different policy direction. I really have a hard time differentiating the substantive direction that the CCC is proposing from that of the mega-entertainment industry acronym'd associations.

Then again, you might just have some bad spokespersons for the group and the CCC isn't as bad as the website suggests.

Russell McOrmond said...

John McFetridge said...

"It will be for copyrighted material, too, and that will be worse for many people than locked material"

This brings us back to what is locked.

The controversy around what we previously were able to just call "DRM" isn't the locks on the content, but the locks on devices. Sorry JohnD, but I need to point people to the "I have 4 things in my hand" presentation linked via my homepage, or even better my explanation of the two locks.

"When I am explaining DRM to politicians, I feel like I am Ralph Nader back in 1965. He explained that with an automobile accident there are two collisions: the car hits something, and the passenger hits the car. While automobile safety up to that point concentrated only on the first collision, it was quickly understood that safety features should concentrate on the second collision. This gave us dashboards that weren't made out of metal, seatbelts, air bags, and other such second-collision safety features. We have the same problem with DRM where policy makers think there is only one "digital lock" being discussed, when in fact there are two and it is the lock they are less aware of that is the source of most of the controversy."


If we had a rental situation rather than a falsely claimed ownership situation, then we can have laws to balance the interests of the owner and the renter for communications devices just as we do for housing. Bill C-61 encourages a third option which is neither ownership nor rental, where the rights and responsibilities of each party are entirely undocumented. I simply don't see the need to create a whole new body of law, rather than forcing people into one of the current longer established areas of law.

BTW: I'm presuming that you aren't a fan of the CCC proposal for compulsory licensing if you don't like the monthly payment vs. buying option. I'm not a fan of that proposal as well, but because I believe creators should have a full spectrum of business models and not have one forced on them by the government (and business model intermediaries like collective societies).

Russell McOrmond said...

"You know as well as anyone that the debate has gone way past that, and that the essential philosophy of intellectual property is being challenged. We asked for a bill that demands respect for the value of intellectual property. And much of the criticism centres on the fact that this demand has now been made.

It's this criticism, and the ridiculous, cartoonish evil vs. good rhetoric being used that makes my skin crawl."

We agree about the cartoonish evil vs. good rhetoric, we just disagree who is the author of this rhetoric.

Also, this bill doesn't offer respect for the value of "intellectual property" (whatever that nonsense term is supposed to mean), it reduces it.

Russell McOrmond said...

"Poor people, I mean, and no one involved in this debate cares about that at all."

Some of us do strongly care, but those people focused on royalty-bearing business models are often offended whenever we talk about business models and public policy that would help the worlds poor. This is why I would generally consider it off-topic for this BLOG.


* Sharing: the way to Make Poverty History (BTW: They are my customers, and I'm the sysadmin for their webserver)

* speech by Professor Eben Moglen that puts this whole conversation in context

* Politicians will be politicians: Obama’s technology policy not as good as advertised?

John McFetridge said...

Russell,

"Locks on content and devices for the purpose of centralizing control of communications tools is the identical issue to centralizing control over communications media."

Central control will be realized through controlling the delivery system of the content, not the content itself.

I don't mean the discs or the even text, I mean when the only delivery system is online. We will stop thinking of things as individual texts or pieces of music and everything will be part of a 'service,' all available for one low monthly fee.

"If we had a rental situation rather than a falsely claimed ownership situation, then we can have laws to balance the interests of the owner and the renter for communications devices just as we do for housing."

Sadly, you're right here. And it will work just as poorly as it does for housing, and whatever laws that will be passed will be constantly under threat and weakened by the greed of the corporate owners.

"In a (relative to Copyright years) short amount of time copyright infringement would be as frowned upon as smoking."

That's not very comforting, either, as smoking rates are still going up in most parts of the world.

And, in my research into crime (I'm a crime writer by day), there has never been a situation where people give up something they wanted for supposed moral reasons. Even smoking required some pretty Draconian laws to go along with the moral change.

It may be that I read too much dystopian sci-fi as a kid, but the kind of promises being made, the anti-capitalist dreams going on just seem so far-fetched, unrealistic and not rooted in any of our history.

I would love to see the kind of utopian situation you talk about, but I don't see its roots in our society or culture, I don't see it as a grassroots movement. I see it as a very few educated people and a lot of opportunists who want free stuff.

Whatever system comes into play, we have to, sadly, accept our history -- it will be abused from all sides.

To not be prepared for that is worse than naive.

John said...

Yes, Russell, please try to keep all talk of poor people away from this blog. I am only interested in the wealthy. I can't imagine how I ever thought the good v. evil paradigm was advanced by your camp. Sheesh.

Making poverty history and addressing the needs of the global south are goals we share. I happen to think we should do these things without expecting whole segments of our society to give up significant rights along the way. As I've said before, sharing works best when it is voluntary.

To me this is a classical ethical dilemma, Twilight Zone style. We are offered the chance to radically change our world for the better. All we have to do is press the red button and the world be a fantastic place. Except we are also told that pressing the red button will destroy someone. A person, perhaps a group of people, we don't know and can't see will be eradicated, but the world will absolutely be a better place once the button is pressed. Do we press the button?

We live in a market driven economy, and corporations are a fact of life whether we think they are imperfect or flat-out monstrous. Let's create market conditions that encourage this reality we live in to shift toward the global needs. You have great faith in revolutionary change, which is charming and admirable. I don't have that faith. I examine history and conclude that change is slow, often too slow for comfort. But the alternative to slow is unsustainable radicalism and unanticipated collateral damage.

Which is why I call for due process in bringing in legislation. We have a bill on the table. None of us think it's perfect. PWAC will have amendments to suggest, and I will leave those to the proper committee to advance.

I will have my own amendments to suggest in a personal open letter to the government. Conversations like this should help me formulate those amendments.

John said...

And for the record - though McFetridge and I share a first name, a love for soccer, a profession, some physical characteristics, and the spooky tendency to consider the lessons of history almost at the exact same moment, we are not the same person.

Or, are we?

Russell McOrmond said...

JohnD,

We disagree that recognizing the interests of the worlds poor requires creators to give up their rights. What it does suggest is that we shouldn't be focused on industrial-era methods of production, distribution and funding. There isn't a conflict between the rights of the poor and authors rights, even when there are conflicts with very specific business models used for specific types of creativity.


The most expensive creativity are those which also lend themselves to peer production and royalty-free business models. These aren't "entertainment" which is both optional and largely local (IE: telling local stories to local people often more valuable), but functional things like productivity software, medical/scientific/educational knowledge, etc.

This goes back to a point that I try to make often, which is that any conversation about Copyright that presumes all creativity is the same is going to be nonsense. "Harmonizing" copyright across creative forms shouldn't be a policy goal given each exists in an entirely different marketplace.

Even within "software" we see this with the entirely different marketplaces for productivity software (increasingly FLOSS) and entertainment software (best understood as interactive motion pictures, and market analyzed as part of the motion picture industry).


"As I've said before, sharing works best when it is voluntary."

I agree, and I don't try to take that away.

On the other hand, CCC proposes policies which try to take away business models which are not royalty-based. Not surprising when business model intermediaries like collective societies are welcomed as if they were creator groups.

C-60 sets up the economic climate to make software choices no longer "voluntary" if one wants to participate in mainstream culture.

I guess this idea of things being "voluntary" only works one way, when it involves things which you want.

*sigh*

Russell McOrmond said...

"I can't imagine how I ever thought the good v. evil paradigm was advanced by your camp."

Are referencing the Comic book by artist Gordon Duggan? I thought he was in "your camp"?

You tend to count and claim all the members of all creator groups as "your camp", not just those who agree with the narrow position put forward by the executives of some of those groups. I believe Gordon is counted by you multiple times as a member of a number of those associations and collectives.

I'm a software author, not an artist, so I assume independent software authors is "my camp" under your definitions.

John McFetridge said...

Or are we, indeed?

Certainly open-source software is a different thing entirely, and you're right, Russell, one system of copyright for it (and all software) and artistic material won't work.

But what's happening here isn't so much about laws as it is peoples' perception.

At BookExpo a publisher said one thing they learned from what happened with digital music was that people felt fine illegally downloading because musicians got ripped off my record companies anyway and that probably wouldn't apply to books because there's no public perception of writers being ripped off by publishers.

To which I say, people will find a new justification. They always have, for everything they want.

Applying the open-source model to the arts is such a break with tradition we have no idea what will happen.

Well, not no idea, because we can look at our history.

Your ideas may make perfect sense in a theoretical vacuum, but then every 'system' does. If the only thing in place to stop abuse is the honour system, I'd like one example of where that's worked in the past.

John said...

Russell,

I agree that copyright does not/should not work the same cross-platform, which is why we should try to address new platforms/models with new law, not discard the beneficiaries of old law.

I often wonder how your concerns for open access medical knowledge etc. are translated into why I should be allowed to do anything I want with my iPod. I don't have an over-riding philosophy that links those two very different realities. But what is the public conversation about right now? Cell phone carriers, cable tv and mp3s.

You speculate about what CCC proposals will do for software, but the CCC is aimed at content. Separate the two things. I'm not trying to stop you. I'm just trying to make sure the creators of the content everyone seems to want to use in their online businesses retain their rights and get paid.

Instead of trying to kill a piece of legislation that is now officially ten years late, why not drop the ridiculous partisan posturing, use our Parliament to amend C-61 into a less imperfect document, declare a new starting point and move on with the further societal changes we all want? Discarding this entire bill puts us back in no man's land.

John said...

I guess I have a different perception of the camps, Russell.

There's the folks who want legislation and don't so much mind that it comes from Conservatives, or may contain nuts and the opinions of large corporations.

And then there's the folks who get all frothy about evil American influences, and decide to pre-label this bill the Canadian DMCA to make sure the right simplistic and self-righteous emotions are stirred up.

I'm in the first camp. Appropriation Art has pretty much always been in the second. Perhaps your own belief that all artists must belong in the same camp is part of the problem.

I agree with many of the aims of appropriation artists, and I would like to see such artists find a happy place to work within fair dealing, which will obviously involve some necessary expansions (though not such an expansion that original creator rights are discarded wholesale). That said, I think the current position of the association called Appropriation Art is embarrassingly partisan, reactionary, and will result in many babies thrown out with a little bit of bathwater. I further think that Geist's holding up of this group as an example of what "artists" believe while he ignores the CCC is dirty politics. It reminds me of another coalition of the willing.

Russell McOrmond said...

"I often wonder how your concerns for open access medical knowledge etc. are translated into why I should be allowed to do anything I want with my iPod."

I often wonder how my suggestion that I should be in control of technology I own (not that I would ever buy an iPod) translates to me being able to do anything publicly that I want with someone elses copyrighted works? These are two entirely unrelated concepts, which are being merged together by proponents of centralized non-owner control over technology.

I don't believe that people should be able to do anything they want publicly with someone elses copyrighted works, and I believe the law should *continue* to enable copyright holders to sue the people who infringe their creative rights.


I don't need to "speculate" about what CCC proposals would do for software, given it is all there in the policy proposals. It doesn't say that private copying should be extended to all "content", it says all works covered by the copyright act.

I also don't strongly differentiate different types of functional knowledge. Instructions to a computer (software) or instructions to a human (educational, scientific, medical knowledge) have more in common with each other than any of these have to fiction or entertainment content.

"Discarding this entire bill puts us back in no man's land."

This is your belief, but you have never demonstrated this. I heard false claims at CopyCamp that the current act isn't strong enough to allow copyright holders to sue for activities we all agree is and should be infringing. The status-quo of our currently strong Canadian copyright act is not a "no man's land". It just requires that Copyright be used as it should be used, with copyright holders suing copyright infringers for infringing copyright.

All this scapegoating third parties who aren't infringers, or trying to have third parties launch the lawsuits rather than copyright holders, is simply wrong and should be opposed.


C-61 is primarily a Canadian translation of the 1995 NII thinking, and that thinking is fundamentally flawed, and against the interests of both creators and other citizens. Any bill written to implement that policy direction should and will be opposed.

It would be far better for the interests of creators to Kill Bill C-61 and suggest that parliament switch to tabling simpler bills that could reasonably be debated, as they did for their anti-camcording bill.

Russell McOrmond said...

"I further think that Geist's holding up of this group as an example of what "artists" believe while he ignores the CCC is dirty politics."

You know we disagree on this, but I'll repost for the benefit of your wide readership.


Appropriation Art, the Canadian Music Creators Coalition, Canadian Software Innovation Alliance (which I am a member of), and other such groups are made up of people who joined a group specifically because they agree with specific policy proposals. For these people, you know what they are thinking. You can count each of those members as a supporter of the stated policy.

The CCC is made up of associations and collective societies that have members who are there for a wide variety of reasons, and who do not have much of a choice about what policy positions the executives put forward.

All you really know with the CCC is that the something like 20 people who make up the policy group agree with the policy proposals, nothing more.

I think it is quite legitimate to take the 20 people (lets be liberal and call it 100) that CCC can claim to represent, and compare it to the 600 members Appropriation Art has signed up, and the nearly 200 members of the Music Creators Coalition, and suggest a general direction supported by creators.

There may be a large number of creators who agree with the CCC, but given the way the CCC is organized it isn't going to be an effective way to articulate that voice. We really need to have people signing on to a specific policy document, not just counting less-than-voluntary membership in associations with broad issues they deal with.

Collective societies are business model intermediaries, and no more represent the interests of individual creators than the executive of a manufacturing corporation represent the interests of their workers. There are many areas of policy where their interests overlap, but there are also many areas where they diverge sharply. There is an entire union movement based on the idea that labour and management have different perspectives and interests.

Russell McOrmond said...

Missed this part:

"decide to pre-label this bill the Canadian DMCA"

We did this because that is what we were told we were getting, and what we were ultimately offered. The bulk of the bill is based on the policy proposals that came out of the 1995 Clinton/Gore National Information Infrastructure task force. This is the same policy that was policy laundered through WIPO in 1996 to then be tabled in the USA as their 1998 DMCA.

It is not a matter of the "right simplistic and self-righteous emotions are stirred up", but for people to correctly understand the origins and meaning of the primary policy direction of this bill.

Put another way, it is that "summarizing" you keep asking for, but reject as soon as we try to offer it.

John McFetridge said...

"I believe the law should *continue* to enable copyright holders to sue the people who infringe their creative rights."

As a lawyer friend said to me, to sue someone you need two things: a good case and an awful lot of money. And really, if you have enough money, the case doesn't have to be that good.

Of course, if you don't have any money...

After the fact litigation simply isn't a realistic option for artists. By putting this forward as a workable solution you do a disservice to the rest of your arguments. We start to think everything you say might be this far off base and unrealistic.

I'd still like you to adress the fact that your software sales need a single customer and my book sales need thousands of individuals - my last book sold almost two thousand copies in Canada (pretty good, eh? Well, there's a lot of sex in it) and I get about a buck from each one.

Freely distributed online I'd get nothing (how much have you received in donations, John?). Two grand isn't going to make me or break me but I'd still like to get it.

We're moving from the theoretical to the practical now and I realize that puts academics in unchartered territory, but it's very real to us.

Russell McOrmond said...

"At BookExpo a publisher said one thing they learned from what happened with digital music"

Books are different than music :-)

For recorded music and mashups I support the Songwriters Association of Canada proposal to move to compulsory licensing for non-commercial online sharing. This is related to the model used for this form of creativity on commercial radio already, so wouldn't be a policy stretch at all.

What John Degen is doing with his fiction book makes sense, which is to make it available legally $free online for entirely non-commercial, no-derivatives types of uses, reserving all other rights. This has been found in the past to drive up sales of the physical book, given real books are just so much better than e-Books. I don't know what John's experience has been thus far, but I hear from Cory Doctorow who does this all the time and has become quite successful from it.

Those silly people who think they are gaining something by making a scan or photocopy of the book to not pay for it in this situation just look like idiots, and end up being marginalized as the social outcasts that they should be treated as.

John's fiction is different that some types of non-fiction, where peer production is what makes sense (Book reference: The Wealth of Networks -- yes, it is online like John's book, but something of that substance really needs to be read as a real book).

I would never suggest that the Peer Production model that we use for Open Source software works everywhere. All I'm asking for is policy which enables a full spectrum of methods of production, distribution and funding, so that the actual creators in each different form of creativity are supported in their attempts to explore the best models (including models where they skip traditional intermediaries).

C-61, modelled after the NII policy, seeks to centralize control over the technical means of production and distribution (and thus business models), which is the opposite policy direction than what we creators need.

"But what's happening here isn't so much about laws as it is peoples' perception."

That is where exercising existing laws is critical.

Many people believe that unauthorized P2P sharing is legal in Canada because there hasn't been lawsuits in Canada like there has been in the USA. The problem isn't the law which is quite strong, but the willingness of Canadian copyright holders to actually collect evidence and sue infringers.

Because CRIA opted to go after "enablers" (IE: me and other independent software authors, and technology property rights activists) rather than copyright infringers, more copyright infringement is (and will continue) to happen. They lost their case (BMG vs Doe) because they didn't bother collecting any evidence of infringing activity, and were then given a blueprint by the court of exactly how to sue infringers.

Who is at fault for this increasingly bad situation? Hmm --- sounds like the primary fault lies with the same people who are the primary proponents of C-61.

I don't blame average Canadians who don't understand how the currently excessively complex copyright law works (with C-61 making it far more complex). I blame some of the self-called pro-copyright lobbiests.


This isn't blaming the victim as the entertainment industry isn't the victim -- individual authors and the targets of C-61 like myself are.


"Your ideas may make perfect sense in a theoretical vacuum"

I'm curious if you have run other policy proposals through a similar lens? I suspect that the NII thinking doesn't even make sense in a theoretical vacuum, leave alone the real world we live in.

Have you used the same lens to look at proposals from the "Canadian Creators Coalition", or other groups in this debate?

Russell McOrmond said...

"After the fact litigation simply isn't a realistic option for artists."

Actually, it is the only real-world option available. But you don't need to be alone, and should follow the lead of our community.

If an activity is against the law, either the state or the individual harmed (or their representative) has to take the person to court. I strongly oppose infringement being a criminal matter where the state prosecutes, so this leaves us with creators (or their representatives) launching lawsuits.


I understand that individual citizens don't have the money for lawsuits. This is why we form associations that can help do that on our behalf, to settle a matter of principle and as a critically important mechanism to educate the public about what is unlawful behaviour.

I can't afford lawsuits either, but know that if my rights were attacked that there are a number of law clinics, associations and individual lawyers who might step up and help me out. Long before I understood the economic aspects of Free/Libre software, it was this collective action on legal issues that drew me to it.

While I haven't had to go to court, the Software Freedom Law Center launched another software copyright infringement case on June 10'th. There is a website dedicated to enforcing the GNU General Public License (GPL) which lists all the activities of the large community of people using this specific license.



I've been asking John where PWAC is on this file for years now. PWAC and the Writers Union, or some new law clinic for author members, should be doing for you what the SFLC is doing for Free Software developers.

I bet there would even be government money to help fund this law clinic.

And creating appropriate law clinics like this to directly support the interests of authors would go much further to dealing with the real issues of the day than copyright revision can.

What is the point of making more activities illegal if nobody is willing to sue to enforce them? About the only additions to the Copyright act in C-61 that will be honoured are those targeted against the creators of multi-purpose technology. You seem to be suggesting that the minor adjustments to laws against copyright infringers are useless to you.

John McFetridge said...

Books may different from music, but the delivery system is quickly becoming the same. That seems to be the elephant in this room we’re not talking about.

Anyway....

“This has been found in the past to drive up sales of the physical book, given real books are just so much better than e-Books.”

For now. And both are currently available. That may not be the case in the future. This may be a transitional stage. Everyone mentions Cory Doctorow – the “old” system worked for tens of thousands of writers, the new one seems to be working for one. Maybe he’s the only brilliant genius who has a handle on it, we’ll see (I just wish the stakes weren’t so high for me personally in this experiement).

“... and end up being marginalized as the social outcasts that they should be treated as.”

All kinds of mainstream activities started out on the fringes. Once again, this is not reassuring.

“Who is at fault for this increasingly bad situation?”

Well, when I bought my first CD in 1983 (UB40, I still have it) there weren’t any copy restrictions on it, no locks, no DRM, just the same printed agreement between seller and purchaser that had been on LPs before it. Then, the second the technology made it possible, the purchasers simply ignored that agreement and a billion illegal downloads later, we’re in this mess. I’m not exactly sure how that’s the record company’s fault – other than we hate all corporate entities the way my eight year old son hates brocolli.

“What is the point of making more activities illegal if nobody is willing to sue to enforce them?”

Or enforce them, period. Once in a while I’m reminded that marijuana is illegal. Surely you’re not suggesting that enforcing the law of the nation is up to individuals or citizen associations? I’m an anarchist from way back, wouldn’t a state-less society be great? Do you think we’re ready for that now?

I sure hope you’re right about all this, because if you’re wrong, if your ideas get co-opted and twisted by someone else, if you’ve really just opened the door for even more corporate ownership of delivery (the only point where any money changes hands) and a total lack of commerce attatched to the content, there’ll be no going back.

People have said the last US election was between oil companies and telecommunications companies and oil won. Looks like telecom has a better chance at this one and all guys like Doctorow and Geist have done is convince people who aren’t paying attetntion that closely that content is free.

I sure hope things go the way you think they will, but let’s just say I’m starting to regret that history degree.

John said...

Yes, Russell, you explain things over and over again, but maybe your frustration at having to do so stems from the fact that you then don't pay any attention to the responses to your explanations.

PWAC is actively involved in helping our members battle for their rights under copyright. We have a very busy little mediation service that communicates with infringing individuals and publishers to let them know they've infringed.

Strangely and mysteriously, the majority of pushback we get from infringers sounds like semi-understood quotations from deathbycopyright. I have actually had a commercial website owner say "how dare you" to me when I pointed out they couldn't just lift an entire text from a newspaper site and reprint it without permission or payment. "The writer should be happy -- I'm helping to increase her audience. And I'm educating the public."

I always start these interactions very politely, and finish them the same way, but I deal with a lot of anger and reproach from the other side. Few of these things go legal - because there is absolutely no percentage in it for the writer.

And besides, you really aren't suggesting that writers suing readers or their "fans," as the enlightened rock stars like to say, is the only viable path for us? Are you? Talk about being painted into a corner. Hopefully those we sue will be grandmothers and teenagers so we reap the full benefit of that strategy.

I'm sorry you feel so threatened by this bill. I'm not sure I see the damage that has resulted to your industry since the introduction of the DMCA -- you know, the US law. Are you on the verge of extinction?

Russell McOrmond said...

"Then, the second the technology made it possible, the purchasers simply ignored that agreement and a billion illegal downloads later, we’re in this mess. I’m not exactly sure how that’s the record company’s fault"

We see what happened entirely differently. From my perspective, the record companies weren't offering viable alternatives to infringement for many music fans. And it may take another decade for the music industry as a whole to recover from the mistakes they have made in the last decade.

I stopped buying CDs around 1998 when DRM started to infect CDs. All copy control on CDs did was make it a crap-shoot as to whether it was going to work on your particular CD player. Since retailers didn't accept returns it was simply impractical to buy CDs. It could no longer be an impulse buy, but something you had to do a massive amount of research on.

At the same time they weren't offering online alternatives. Years later they "advanced" to the level that I could pay for music if I also payed either the Microsoft or Apple tax, but not if I was using an independent operating system.

That's like if someone told you they would give you a discount on gasoline, as long as you gave up all your copyright -- your livelihood. Not a reasonable bargain.


In my case I cared enough about fellow creators to simply stop accessing music (Listen on radio and TV, but no longer acquire my own copies). Not everyone is going to be willing to disengage that way.

Once eMusic came forward offering guaranteed DRM-free music in a standard file format that simply worked on all my devices, I was able to buy music again. I've been an eMusic customer since I discovered the service.

I also buy CDs from independents who assure me ahead of time that the CDs aren't infected with DRM, but even then some of the distributors are screwing over the artists and adding DRM without their permission.

I have a question out for the team behind Rush as I want to get their latest 3 albums, but haven't heard anything back. As much as I am a fan of Rush, I'm not going to pay money to possibly get something claiming to be an Audio CD that doesn't conform to the Red Book standard.

Yes, I put 90% of the blame of what happened to the music industry on the major labels, and only 10% on private citizens who chose the option of infringing rather than disengaging as I did.

Bill C-61 simply gives more copyright holders encouragement to be as stupid.

Russell McOrmond said...

"all guys like Doctorow and Geist have done is convince people who aren’t paying attetntion that closely that content is free."

By the way, if you are simply going to be making stuff up like this, you might as well include my name.

Neither of these people have ever said anything remotely like you suggest, but I understand when emotions better peoples judgement in these discussions. This stuff is pretty important.

John McFetridge said...

“We see what happened entirely differently. From my perspective, the record companies weren't offering viable alternatives to infringement for many music fans.”
What do you mean, they were charging ten bucks for a CD? What alternative were you looking for? Remember, this downloading began long before there were any DRMs. If you’re complaining because record companies didn;t get on board with online sales fast enough, that’s a whole different issue and certainly not an excuse to simply do it for them
“In my case I cared enough about fellow creators to simply stop accessing music (Listen on radio and TV, but no longer acquire my own copies). Not everyone is going to be willing to disengage that way.”
Well, in my case I stopped buying, too, but I think it had more to do with turning forty and already owning a lot....
“By the way, if you are simply going to be making stuff up like this, you might as well include my name.”
Well, I would have, but I’d never heard of you.
Doctorow and Geist (and I guess you) are being awfully cute in adhering to the letter of the law of, “what I say,” and ignoring any other meaning that people may take from it, saying, well, that’s not my responsibility, it’s got nothing to do with me, what they do.
You know I was just on another forum and someone mentioned an iPod song list. The very first response to it was, “I’m going to torrent that right now.”
I doubt very much if more than 1% of the people obtaining their online material that way are doing it out of an ideological sense of right and wrong. But you’ve opened the door for the 99% of downloaders and offered them all the justification they need. Just like the, “Record companies rip off artists, so I’m only stealing froma multi-national.” They know it’s bullshit the minute it comes out of their lips, but it’s all they need.

Oh, I know, you have no responsibility here. No one does.

Infringer said...

Wow, you guys have been busy today.

"Strangely and mysteriously, the majority of pushback we get from infringers sounds like semi-understood quotations from deathbycopyright. I have actually had a commercial website owner say "how dare you" to me when I pointed out they couldn't just lift an entire text from a newspaper site and reprint it without permission or payment. "The writer should be happy -- I'm helping to increase her audience. And I'm educating the public."

HEY, I resemble that remark!

Well actually I don't. None of the examples on DeathByCopyright involve wholesale infringement of entire works, and none of them in any way prejudiced the original authors financial interests. Two considerations which should feature prominently in any discussion of fair use. But let's not beat this old horse again.

Russell McOrmond said...

"Are you on the verge of extinction?"

I could ask you the same, given you aren't extinct under Canada's currently strong copyright law, and yet you fear problems that you already have solutions for to justify wanting radical changes in the makeup of Copyright law.


If you aren't willing to sue someone for infringing your copyright, then copyright doesn't exist to you. Whether it is strong or weak doesn't matter to you as you will act as if it doesn't exist.

Lets exist in the real world for a moment, and make a simple matrix of the available options as far as the *LAW* is concerned.

a) Copyright holders sue copyright infringers.

b) Someone other than copyright holders sue copyright infringers

c) Copyright holders sue someone other than copyright infringers

d) Someone other than copyright holders sue someone other than copyright infringers

Lets look at these in more detail.

a) was previously just been called Copyright. Both John's in this conversation have suggested they don't want to sue infringers, so are effectively rejecting traditional copyright.

b) includes the increasing number of activities which are considered "criminal" in nature, and are court actions launched by the government rather than copyright holders. I think this is bad public policy to have the government stepping in this way, and it is not helpful to copyright holders who lose control over the enforcement of their copyright (again, another form of giving up of authors rights traditionally expressed in copyright)


c) and d) include the NII direction, targeting non-infringers such as the manufacturers and owners of multi-purpose technology, and the software authors that program them. That means it targets *ME*. This policy direction blames *ME* for infringements that someone else may or may not do.

Hard for me not to take this personally, given your giving up of traditional copyright in order to blame non-infringers for your unwillingness to sue infringers puts me in the cross-hairs.


Note that I said those were the 4 options as far as the law is concerned. There are other alternatives, such as changes in methods of production, distribution and funding to reduce situations where the courts would need to be involved.

Infringer said...

"I doubt very much if more than 1% of the people obtaining their online material that way are doing it out of an ideological sense of right and wrong. But you’ve opened the door for the 99% of downloaders and offered them all the justification they need."

The problem is that with technology what it is it would take a world such as Doctorow envisioned in "Little Brother" to prevent this sort of behaviour. I know Degen hates it when people say "police state", but I honestly believe that that is what would be required to keep anything that even remotely resembled the old copyright world.

The question then becomes is the resulting loss of privacy and the loss of fair use and the loss of amateur art, a price worth paying to achieve this? I don't believe it is and I think we need to find alternatives which will encourage art and culture and not have these side effects. That will not happen without a serious culling (not abolishment) of the privileges granted through copyright, coupled of course with other initiative to ensure there are adequate financial incentive for those determined to make a profession out of it.

Infringer said...

"Note that I said those were the 4 options as far as the law is concerned. There are other alternatives, such as changes in methods of production, distribution and funding to reduce situations where the courts would need to be involved."

That is the essence of what I was getting at with my last post.

John McFetridge said...

Yeah, we've been busy. My kids get out of school next week and I'm a stay at home Dad, so I stop writing for the summer. I;m doing one of those diary pieces for the National Post. Maybe this will get into one of the entries. So,

“I know Degen hates it when people say "police state", but I honestly believe that that is what would be required to keep anything that even remotely resembled the old copyright world.”

I think you’re right (I believe we artists are done like dinner. I once thought I was working at something I could leave for my kids as generations have before me have, but I missed it by one generation. Crap), but think of the implications of what you’re saying. The state doesn’t have the resources to enforce the laws it passes. I sure hope that only applies to immoral laws.

So, yes, we need to find something that works for everyone, but it doesn’t look to me like we’re getting closer. When did copyrighting something you’ve created become a priveledge?

It looks like our choices are a police state or anarchy. I’ve done a lot of research on global organized crime, and they’re the only guys equally happy with those two options.

Infringer said...

"I think you’re right (I believe we artists are done like dinner. I once thought I was working at something I could leave for my kids as generations have before me have, but I missed it by one generation. Crap), but think of the implications of what you’re saying."

No, artist aren't done like dinner. There will always be artists and always be art. It is interesting. I've read a number of interviews with a number of authors who make their living writing books. When asked why they wrote the book(s) they did before becoming famous, they always answered that they basically just had a story they wanted to share. They wrote the books for the love of the art and were, almost without exception, surprised that it ever got published.

Those writers will always exist in our society. Fewer of them may find that they will be able to make a full time living from it, but from societies perspective, so what? Technology that makes publishing books cheap and easy will ensure that there will always be a great many of these writers and some of them will make a living from it one way or the other.

" The state doesn’t have the resources to enforce the laws it passes. I sure hope that only applies to immoral laws."

It is not always the states job to enforce the law. For example I once had a client who I did work for who did not pay my bill. I HAD TO SUE HIM, and I had to go to court again to enforce judgment. Copyright is also a law which the primary beneficiaries (copyright holders) are the ones who are suppose to enforce it.

"So, yes, we need to find something that works for everyone, but it doesn’t look to me like we’re getting closer. When did copyrighting something you’ve created become a priveledge?"

Copyright is by definition a state granted monopoly on distribution. The term of copyright, the definition of derivation, and what constitutes "fair use' are entirely arbitrary, and have been evolving over several hundred years. If copyright were a right and not a privileged then what justification does the state have to limit it to life + 50 years, or what ever term? If copyright were a real right then the term should be forever shouldn't it?

"It looks like our choices are a police state or anarchy. I’ve done a lot of research on global organized crime, and they’re the only guys equally happy with those two options."

Again I disagree. The alternative to police state is not anarchy. The alternative is reduced copyright. Reduced to what can reasonably be enforced in a free society, which I loosely define and commercial uses. As well as other innovations to support creators. Sponsorships, Government Grants, embedded ads, performances (if applicable). I'm sure many methods can be had, and I think this is the conversation the world governments should be having.

Russell McOrmond said...

"I honestly believe that that is what would be required to keep anything that even remotely resembled the old copyright world."

Of course, that all depends on what you thought the old copyright world was.

In the past, the technology required to create mechanical copies or communicate to the public by telecommunications was expensive. This meant that all these activities were commercial in nature, with Copyright essentially being an industrial regulation (what it regulated only affected industrial activities).

If we want to protect that traditional notion, then that is quite easy. Having associations, sometimes partly government funded, sue corporations for illegal behaviour doesn't come with the emotional baggage the current debate does.

The problem is that many copyright holders are focused on activites which might reduce the value of their copyright (peer reviewed economy analysis still pending) which are eithor non-commercial in nature, and sometimes private. This is what new technology brings, the ability for individuals to communicate creativity both privately and non-commercially.

But regulating these activities is a new concept, not an automatic modernization of the concept of "copyright". (AKA: manuscript right -- mechanical copying shouldn't be the focus).


This is where the emotions come in. Many copyright holder don't want to be seen to be suing "fans", and yet they emotionally believe that it is "fans" that are the cause of their economic problems.

I really don't know how to get out of this, partly because I don't agree with the premise that the non-commercial activities of "fans" are as harmful as claimed. That said, I understand the emotion even if I don't agree with the economic analysis.

I really believe that if Copyright only regulated public activities, and Copyright holders made examples out of commercial copyright infringers, that we would all be better off economically and otherwise.

Russell McOrmond said...

"Doctorow and Geist (and I guess you) are being awfully cute in adhering to the letter of the law"

There isn't just two "sides" to this debate, and it isn't any more valid to lump those of us you identify with people who have no problem infringing copyright as it would be to assume that the two John's in this conversation are identical to Jack Valenti.

"I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."

Or how about John Philip Sousa

"These talking machines are going to ruin the artistic development of music in this country. When I was a boy...in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape."

Well, I guess both were proven false in their estimation of the new technology of the day, although the rhetorical tone and emotions exhibited from "your side" of the debate hasn't changed much.

Then again, I wonder if the current debate would be happening if governments hadn't fully legalized these "infernal machines" to create the recording (and later the motion picture) industries.

*smile*

Russell McOrmond said...

"Fewer of them may find that they will be able to make a full time living from it, but from societies perspective, so what?"


This is one of the places that "infringer" and I don't agree. I believe that with the costs of production and distribution being lower, commercial copyright holders will be able to build closer relationships with their audiences and actually make more money.

But it does require different relationships, and the most successfull authors won't be the ones that want to write in their ivory tower and hand it off to someone else to reach audiences. It will be the people who build brand rather than trying to build "product".

Technology giveth, and technology taketh away -- and sometimes changes in technology simply shift what creators will be making the most money. Sorry, but I worry whether creators as a whole will continue to be well funded for their important contributions to society, not whether individuals will chose failing business models.

John McFetridge said...

Well, as I said, Russell and Darryl, I sure hope you guys are right.

I'm never so certain of things - especially what the future will hold. I prefer the go slow and err on the side of the devil I know approach, but too fast changes in technology make that impossible, I guess.

I do think one of the reasons this has become such a fight is because people handed Big Brother a gift by saying, if we don't like your law, we'll just break it. And then doing it so, so much.

The language of this issue seems to be completely off kilter and helping to push extremes, which isolates all of us. And that's our own fault, all of us.

There will be changes, for sure, it's all a work in progress, and I'm just not confident in the multi-nationals losing anything they've gained in the last hundred years, since the first stage of the consolidation of capitalism in North America.

I think we opened a loophole too quickly and we'll regret it. That life +50 will disappear soon and creating art for the love of it will be the only option. Not that plenty of money won't be made off the art we create, of course, just us little guys will get an even smaller piece than we got before.

I hope I'm wrong, I hope for once I'm as wrong as Jack Valenti.

We'll see.

Russell McOrmond said...

JohnM,

Here is why I feel the confidence I do for the proposals I support.

It was 1992 for me, while still at University, when I made my decision to go commercially into Free Software (Open Source was a term coined in 1998, and it is still not my preference). I was told then that if software distributors didn't charge massive royalty fees for software, then all software developers would be out of a job.

Fast forward 16 years and it is hard to find a software vendor who isn't participating in or otherwise supporting Free/Libre Software projects. This is now big money, and those few remaining software companies that are fully dependant on royalties are running scared -- frightened that the marketplace will wipe them out completely.

There are people outside the software sector that don't realize the change, and are still confused by the marketing material from companies like Microsoft and Apple. But both Microsoft and Apple participate in Free/Libre Software projects, and have parts of their businesses that are dependant on them. This may slow down the migration of some users from the legacy cash cows for these vendors, but can't stop the transition.

Microsoft's current thinking is that cloud computing is their future, and public filings have suggested that they don't believe that their old royalty-based desktop business models have any future.

Actual software developers got paid in the past by one-time salaries (not royalties or residuals), and this hasn't changed. What has changed is that many middle men are going away, which has meant that the money many developers are actually making has increased. It has also increased opportunities for entrepreneurs to connect directly with customers in ways that were not possible in the past.

Sounds like a win-win situation for creators, but not always a win for the old-economy distributors.


Other forms of creativity will not work identically, so don't get me wrong if this seems like what I'm suggesting. The successful business models in the new marketplace will be different. I simply don't see the doom-and-gloom that I hear from some fellow creators, any more than I believed it when many people (including the University professors of the day) were saying that royalty-free software business models would wipe out for-profit software.

John said...

Hey Russell,

I accept the stain of extremism you like to paint on my side of the debate. That Valenti quote is a great piece of fear mongering. You may remember I publicly supported last year's creator union action against Valenti's people -- what's that, copyright holders protecting their rights under the law?

I think Sousa may actually have been right, but that's just me indulging in fogeyism.

On the other hand, you always have a rationalization for the worst extremism on your side of the debate. I'm particularly impressed by your explanation of why music file-sharing came about. It couldn't possibly have been that the fences fell down around a big pile of candy. No, it was an ethics decision based on the existence of harmful DRM.

It is to laugh.

This was part of the point behind my Globe essay. I swear to jebus, I have never, in my life, been seriously inconvenienced by restrictions on my entertainment content. But I sure do understand the lure of grabbing an unlocked thing when no-one's looking. You are rapidly losing any and all moral authority in this argument if you expect anyone to believe the majority of file-sharing is a response to DRM.

Luckily, there's always Infringer to let the dogs out with some precious lecture about the true impulse behind art making. It's okay if it can't be a profession anymore, because artists will still get that warm feeling when they do art. Infringer is on your side. He doesn't care if no artist ever makes a buck again. Economic extinction. Deal with it.

Expecting intermediaries to bear some of the responsibility for what happens with their product is not unheard of. Our society is complex that way. In fact, it might be a better society if it were more complex that way. Imagine if gun manufacturers could be sued for unlawful deaths in American inner cities. If weapons manufacturers could be sued by the families of civilian collateral damage. If car manufacturers could be sued for not having seatbelts... wait a minute, weren't we just talking about Ralph Nader a while ago?

No-one interacts with our society outside the constellation of responsibilities we all owe to each other. At least no one should.

Russell McOrmond said...

"rationalization for the worst extremism on your side of the debate."

Worse than that -- I don't even recognize them as my side of the debate.

My side of the debate is creators who believe that individual citizens, not third parties, should be in control of the technology used as the means of production and distribution in the new economy.

I talk about economic models and stuff largely because I don't buy the fear mongering that many people buy into. There is this "sky is falling" rhetoric used to justify extreme changes to the nature of Copyright law (who enforces it, and who it is enforced against).

When I do a cost/benefit analysis of the NII policy direction, I see all cost and absolutely no benefit to independent creators.

That's "my side" -- not people who believe all information should be free, or other such nonsense.


"If car manufacturers could be sued for not having seatbelts... wait a minute, weren't we just talking about Ralph Nader a while ago?"

If you can conjure up with some form of magic that can automate in technology the differentiation between independent creativity and copyright infringement, then this comparison would be valid.

Even then, revoking citizen control over the technology is not a valid answer to technology being capable of being abused.

If I use my car as a getaway car from a bank, should the car manufacturer be held responsible? Automobiles are multi-purpose technology that have largely legitimate uses, and some harmful and illegal uses (IE: can even be used as a murder weapon)

(Note: Even if I don't have a drivers license, I recognize that cars largely have legitimate uses, and owning them should be legal).

I would hope you would consider it nonsense for an automobile manufacturer to be blamed if someone used a car to run someone over. The same is true for multi-purpose technology, the target of the NII policy.

What the US courts came up with in MGM v. Grokster isn't bad. It comes down to how a technology is marketed -- if they are marketing it as a way to infringe copyright, or otherwise actively encouraged unlawful uses, then they should be secondary liable. If the technology is multi-purpose (substantial non-infringing uses is Sony Betamax standard), and the creators even try to educate against abusing the technology for infringement, then the creator should have no liability at all.

Note: none of this balance will exist in Canadian law modified by C-61, given Canadian law is starting out much more tilted in favour of existing copyright holders than the pre-1998 US law.

Infringer said...

"Luckily, there's always Infringer to let the dogs out with some precious lecture about the true impulse behind art making. It's okay if it can't be a profession anymore, because artists will still get that warm feeling when they do art. Infringer is on your side. He doesn't care if no artist ever makes a buck again. Economic extinction. Deal with it."

Sigh, as usual John either doesn't get what I'm saying or simply chooses to ignore it. Allow me to correct you. again

I never said "art making ... can't be a profession anymore". I said there would be fewer professionals. Perhaps the distinction is lost on you. Pity.

I also never said I don't "care if no artist ever makes a buck again". I said we need to find other ways outside of copyright to offer financial incentives for artist to pursue their creative endeavors. Clearly again you are attempting to put words in my mouth.

There were stated arguments behind each of these statements, but I wont repeat them again. Clearly if you got these statements wrong you would have even more difficulty comprehending their rational.

John McFetridge said...

"Sounds like a win-win situation for creators,"

That's what they always say, just before the alien reveals himself...
(I don't really need to put the smiley, here, do I?)

Well, it sounds like it works really well in software.

There are so many differences, though, it's still worrisome. Software is more like a living thing, changing all the time. No one is using a program you wrote in 1999 exactly as it was written the way they're still reading books written hundreds of years ago, new people discovering them all the time.

Maybe it was unrealistic to expect to get a piece of that creation for the duration of its lifespan, as if my work was something I could leave in my will for my children - but someone will pay for it and someone will profit from it. I'm glad to have the shares in BCE I do (they can go in a will), as I expect the phones lines to be profitable in an old-fashioned, bricks and mortar way for a while longer, anyway.

I also think this issue got pushed to extremes by the lack of intitiatives offered up in the wake of the billion illegal downloads - or even much admission that it was going on and was against the agreement printed right on the stuff people bought. It was justified from day one by so many different camps.

Certainly we had to expect that SOMETHING would be done?

The doom and gloom I see stems from the fact that people have latched onto this idea that anything transferred online is free. (and now, as you point out, it's up to me to put up the dough for lawyers) I don't think that genie will go back into the bottle anytime soon.

And for the companies involved they'll just identify the point where money changes hands and place themselves there - merge with ISPs, buy them out, whatever.

That stuff about feeling like an outcast like a smoker? That's the pressure that's being brought to people who suggest they should be paid for creative work these days.

I was just at BookExpo and more people asked me if my book was going to be free online than asked me if it was in stores yet.

I hope the software model somehow works for us. Any idea how I can get someone to pay to "develop" a book they'll have to give away?

John McFetridge said...

I vote for the walls coming down around the pile of candy as the motivation for 99.999999% of the billion + downloads.

Which is pretty easy to prove as the downloads happened before there were any copy protections on the stuff.

John said...

See, this I will never understand --- we can design software and systems that cause a rover to move around on Mars and examine the composition of rocks, yet it's too complicated to design a subtle, evil-free system for controlling the use of copyright content online? I'm not seeing it.

That you don't want to do that work, I can see. Because apparently software designers do not get the same warm satisfaction from their craft that the rapidly dying field of professional artists do. But as Infringer says, from society's perspective, so what?

I wonder if those rover people got paid.

John McFetridge said...

I'm new here, but is it typical when you bring up the walls coming down around the pile of candy to hear nothing but the sounds of tumbleweeds rolling by?

Russell McOrmond said...

"I'm new here, but is it typical when you bring up the walls coming down around the pile of candy to hear nothing but the sounds of tumbleweeds rolling by?"

It's part of the normal conversation for us to be talking across each other, not agreeing with each other about what the "most important" thing is in a given thread.

We will talk around in circles about how much infringement happened at various times in the past for various type of creativity. There wasn't a massive amount of music copyright infringement online before 2000 which is when Napster really took off, and "copy control" was already being applied to CDs. We even had our first DMCA arrest (Dimitry Sklaroff) of a developer for creating compatibility software (Adobe eBook to Adobe PDF converter) which had substantial non-infringing uses.

The fear-mongering that was used in 1994/1995 with the NII task force where this policy originated was entirely hypothetical, and largely based on anti-competitive fears rather than infringement fears. This policy pre-dates most peoples introduction to the Internet, even if some of us were already doing business online.



But at the end of the day we are stuck with a cost/benefit analysis between how much a given solution will cost creators (and society as a whole) and what the benefits (if any) will be.

At the end of the day, I don't believe that *ANY* amount of copyright infringement justifies revoking private control over the means of production and distribution in the knowledge economy.

Russell McOrmond said...

"yet it's too complicated to design a subtle, evil-free system for controlling the use of copyright content online?"

You can't control the use of content online, as content is a "passive" and not "active" component. Digital content cannot make decisions any more than a paperback book is capable of reading itself out loud. Content doesn't become "magic" the moment you digitize it.

All the decision making is within the devices, with the software being the encoding of the specific rules the device obeys. All you can do is remotely control the tools used to manipulate content, given it is these tools which are active.


I consider taking the tools which form the core means of production and distribution in the knowledge economy out of the hands of private individuals, and putting under centralized control (whether corporate or government). is itself evil.


You may not see it, but the problem you are trying to "solve" is unsolvable. Content cannot make decisions, and this debate will always (and can only) come down to a question of who controls (who retains the keys to any digital locks on) the devices used to produce (and reproduce), distribute and access content.

"I'm not seeing it."

That is because you are avoiding looking at the science behind the policy question you are asking.


"That you don't want to do that work, I can see."

This is irrelevant to the conversation. I'll avoid being insulted by the insinuation, given you seem unaware of the science behind the debate.

Part of what I do for a living is security systems, so I understand the math and other technology behind these types of systems. What I'm telling you is the same thing anyone in the computer security and cryptography fields will tell you (Well, except those trying to dupe you and sell you snake-oil).


The only way to allow content to make decisions is to make it into a device, and thus no longer be content (and obviously not able to be distributed over the Internet as such).


For instance: Instead of "selling" video game consoles and games as separate things, the consoles could be rented with the games embedded in them. In this case the owner of the console can be the one that retains the keys, which makes this situation relatively non-evil. We didn't make the content magically able to make decisions, but we did bundle that content within a device in a way that the owner of the device can retain control over it. We can't make the content tamper-proof if ever extracted from the device, but we can do some pretty neat tricks to make the device fairly tamper proof.

Infringer said...

"I'm new here, but is it typical when you bring up the walls coming down around the pile of candy to hear nothing but the sounds of tumbleweeds rolling by?"

No, I just have a family to attend to and other priorities many evenings.

Actually, I agree with you that opportunity and ease of infringement are the primary reasons. The point I've been trying to make is that neither of those can be eliminated without creating a police cyberstate. And that cure, in my opinion, is worse than the disease.

Things like bill C-61 do two bad things. It goes part way toward imposing a police state and it reduces respect for copyright because of its invasiveness towards privacy and private property rights.

The real solution has to be a reevaluation of copyright. Only make laws which respect privacy and property (no police state), and are reasonably enforceable (so as to be respected). This will require a reduction in the current understanding of breath of copyright (only restricting commercial uses), and implementing other mechanisms where appropriate to foster as strong arts community.

John McFetridge said...

"That is because you are avoiding looking at the science behind the policy question you are asking."

Right, so maybe you could go back and explain to that other guy that this really is a technology issue.


"The only way to allow content to make decisions is to make it into a device, and thus no longer be content (and obviously not able to be distributed over the Internet as such)."

Or, since people have shown such a willingness to pay for the internet connections - for the sole purpose of receiving the content - that's the point at which payment can be made.

In fact, consumers are being duped. They have chosen to buy the computer, buy the music player or e-reader and pay every single month for the internet connection so that they can access the content. Those computers and iPods can't do anything without the content, the content is why people bought the devices.

So, all we need to do is make sure that some of the money people happily spend to access content goes to the people who create that content - the money is already changing hands.

The content may be physically different, the science of it may be different, but it is the main reason for all these transactions.

To take the content out because the science is different may make sense to a scientist, but not to an economist, it's still too vital a part of the transaction.

To say that artists should be paid by government grants is to deny their importance in these transactions.

But I think more likely, you're right in your last paragraph - we can never make the content tamper-proof if it's taken out of the device. So, I think fairly soon the device will be the wire that comes into your house (or the wireless connection, of course, but I was going for a metaphor here). You will have constant, 24/7access to all the content you ever want. It will all be available by subscription, just like TV channels.

In the long run, it will be far more expensive for consumers, many will be left out like they are now by premium cable TV and people will no longer be able to build up libraries they can pass on to their kids.

(and for all you Police State folks, wow, you might as well unplug the internet connection right now).

That's my "Little Brother" fear. I don't see why it won't happen in this industry like it has in so many others - it's the perfect economic model because the consumer is charged a small fee every month -- a fee they are already paying.

It's worked so well for leasing cars and works for condos with endless monthly fees - getting people tied to monthly fees is what gave telecommunication companies (phone companies) such wealth to begin with, it's what's worked so well for cable TV companies and I'm sure you see it in software all the time, whether you like it or not.

And, you may not feel responsible in any way, but you are forcing this situation, or at least giving a gift to the well-financed corporations by removing content from the transaction.

Of course, if you can bring these companies down, if you can take the means of production out of their hands, wow, that would be great.

Apparently I'll still need an army of very expensive lawyers, a hugely expanded court system and all the time in the world todevote to it, but I understand that's entirely my problem.

John McFetridge said...

"The real solution has to be a reevaluation of copyright."

It would be a lot easier for me to agree with you on this if there was the slightest admission that the reason we need a reevaluation is because the minute it was possible to do so, so many millions of people simply ignored the old law because suddenly they could get something for free that previously they had to pay for.

It's sort of like the apology the First nations just got. There aren't really any consequences, but it was important to them that someone admit what happened was wrong.

I think a lot of artists would like to hear someone involved in this debate say, "Okay, yes, you're right, people never should have started file sharing sites and freely distributing your work. That was wrong. Now we're going to try and move forward in a way that will satisfy everyone."

Russell McOrmond said...

"Or, since people have shown such a willingness to pay for the internet connections - for the sole purpose of receiving the content - that's the point at which payment can be made."

I disagree with you on "for the sole purpose of receiving the content", and that is not the sole reason I have eithor of my internet connections (I have 2 at home). Downloading content that is intended to be royalty-bearing happens less than a fraction of a percent of the time. I realize those in the royalty-bearing content generation busienss believe that they are the whole reason for the Internet, but they aren't. The Internet is (and has always been) primarily about conversation, not content.

Content is not, and never was, King. You're thinking of traditional broadcast media, not the Internet.

But lets look at your suggestion anyway..

Blanket levies applied to communications networks is one option, and it is the option that JohnD prefers. The conversation then switches from natural sciences (math, applied cryptography, etc) to economics.

The only way to pay as part of the Internet connection is to impose a single business model on creators and their audiences. While for some forms of creativity that will work well (I think recorded music is an example), there are others where it will provide a disincentive for creativity (software, educational/scientific/medical material, etc).

I've even authored an article that talks about setting up criteria for when it works well, and when it does not.

Analyzing when copyright levies are a good idea, and when they are a very bad idea.


The question becomes -- do we bother worrying about the different economic situation for different forms of creativity, or do we just nearly wipe out some forms of creativity in our overly-simplified attempt to "harmonize" the unharmonizeable?

Is it really fair for you to wipe out the copyright motivation for some creators in order to have your specific copyright motivation protected? Rob Peter to pay Paul sound familiar?

It is a great coincidence that those forms of creativity where compulsory licensing (levies, whatever you want to call them) work badly are primary in areas where royalty-free business models (one time payments) are ideal (and already growing). These alternative business models have their built-in disincentive for the type of infringement you are worried about -- the public making free copies is already legal!


I also think it is important for non-technical people to "adopt a geek". I understand neither John here really trust me when I talk about technical issues, but it is important to talk to someone with technical experience that you do trust. That way you can go through the options and sort out the science from the science fiction. You can then go through the options that can exist in the real world, and decide among them which is best.

I am available for anyone else reading this that does trust me to talk tech.

Infringer said...

"It would be a lot easier for me to agree with you on this if there was the slightest admission that the reason we need a reevaluation is because the minute it was possible to do so, so many millions of people simply ignored the old law because suddenly they could get something for free that previously they had to pay for."

I'm sorry I thought I made this clear in my last post. I agree with you 100%. The other point I made then is that you will never be able to stop it either. So, now how do we find a way to live with it?

Russell McOrmond said...

"It would be a lot easier for me to agree with you on this if there was the slightest admission that the reason we need a reevaluation is because the minute it was possible to do so, so many millions of people simply ignored the old law because suddenly they could get something for free that previously they had to pay for."

I'm curious -- why would this matter? Would it change the situation?

We don't agree on the numbers/percentages of people who are ignoring the existing law. I fundamentally believe that most people are honest, and will take the honest route if offered one. I believe we need to make more honest routes possible before presuming there is a problem.

We also don't agree on what percentage of people recognize they are breaking the law. Lisa Frulla, a past Heritage Minister, actually believed P2P filesharing of recorded music was currently legal in Canada. Anyone who bothers to read the current Copyright act knows she was wrong, but a Minister being wrong isn't all that unusual. The recording industry continues to spread this myth as one of their lobbying tools to get changes in the law. We have a massive educational campaign that is required, and some of that will require going to court to get caselaw that demonstrates the current strength of Canadian copyright.


But even if I did agree with you, how would that possibly change the conversation about what to do about it?

I get very angry at people who infringe traditional notions of copyright (Which to me means public activities, not just commercial activities, and not the crap they are trying to add now with C-61 which doesn't count as copyright).

I run one of the few series of Internet sites that I know of that clearly makes infringement a justification for revoking publishing access. A few years ago I made clearly licensing things in an Internet-compatible way a requirement, and I removed a number of past sites that didn't agree to that. The rules for my forums clearly state that you cannot republish articles without permission from the copyright holder, something that far too many people invalidly believe is "fair dealings".


I don't care for the various "but it is advertising" B.S. justifications. I believe that it is the copyright holder, not someone else, that should choose their method of production, distribution and funding. If a copyright holder chooses a business model, it is not up to their alleged fans to second-guess them. I don't call it "theft" because copyright infringement is nothing like theft, but it is wrong and I consider the people who do it to be dishonest scumbags.

I am also a huge supporter of the FLOSS developers who are going after infringers (Like the GPL-violations folks listed above). While a very different situation as they are only having to go after corporations (as private citizens have no motivation to infringe the licenses), I still have a desire to have the book thrown at these dishonest corporations. In some cases it is the same corporations who claim to be angry when private citizens infringe, and then hypocritically infringe copyright themselves!



The fact that copyright infringers upset me (P**S me off) so much does not lead me to agree with public policy which primarily targets non-infringers.

No amount of infringement will make me want to deliberately kill the baby rather than just throw out the bathwater.


Sorry for the rant, but given you want to focus on whether we are angry rather than focusing on solutions, then here you go!

Infringer said...

"So, all we need to do is make sure that some of the money people happily spend to access content goes to the people who create that content - the money is already changing hands."

Easier said then done. Even the current and simpler model we have of the CD levies has never worked property. Most small musicians use blank CDs to distribute their own music, and every time they do they pay a tax to Celine Dion, and other big acts who get more air play and sell CDs through retailers.

I do download TV off the net (sure call me evil, but I know the current apparent anarchy is only temporary and society will find a way to adapt. I don't mind both taking advantage of it and in doing so helping the transition along. It is very similar to people who either listened to early radio or early cable tv before those respective levies were imposed) But the stuff I download is generally foreign stuff from either the UK or Australia. No levy system that does not seriously infringe privacy AND private property is going to be able to ensure that I both pay for the content and that it gets to the right people.

I see nothing wrong with both corporate and government sponsorships of the arts. I think that sort of direct financing is a much more efficient way to ensure that more money gets into the hands of you needs it. I'm delighted for example that JohnD was able to get a grant for his book. Kudos for him. The BBC puts out fantastic television, all paid for by the government. Don't knock sponsorship models of financing. I think it is a big part of the answer to our current problems.

Russell McOrmond said...

"I'm sorry I thought I made this clear in my last post. I agree with you 100%."

I apologize. Not for something I have done, but for things other people did and continue to do that I find disgusting.

"The other point I made then is that you will never be able to stop it either. So, now how do we find a way to live with it?"

While I believe that it can't be technologically or legally forced to stop, I have far more faith in humanity than is being expressed by others here. I believe that if good legitimate options are made available that a majority of society will take those options.

There is still nowhere for me to commercially download the television shows I want to watch (missed, aren't available on my cable stations, etc) where I pay a reasonable amount of money and receive a file in a standard file format that is usable on all my devices.


There will always be some people who slip through the cracks, but the more we make this into a war between copyright holders and society, the more copyright holders will lose.

Continuously tell people they are untrustworthy, and eventually the claim becomes true.

(Hmm -- from natural sciences to social sciences -- from economics to psychology).

Infringer said...

"I apologize. Not for something I have done, but for things other people did and continue to do that I find disgusting."

Why do you apologize for other people's actions? It is not your fault that you have different moral standards, and it is a little condescending.


"While I believe that it can't be technologically or legally forced to stop, I have far more faith in humanity than is being expressed by others here. I believe that if good legitimate options are made available that a majority of society will take those options."

The only way that this honour system will work is if consumers (not artists) believe the system is fair to them. And again that will require us not regulating non-commercial activities. It would also likely require a huge reduction in the term of copyright to something far more reasonable. If copyright only existed for a few decades, required registration, and was even shorter (in the single digits) for software, then an honour system might have a chance. I don't see these changes coming without one hell of a fight.

John McFetridge said...

"I also think it is important for non-technical people to 'adopt a geek'."

I would, Russell, but in the 'geek vs. lawyers+capiatlism' I think, sadly, the smart money has to be on the lawyers. They haven't lost one yet (kind of like TFC at home!).

we agree that we are on a road towards more and more Draconian, unworkabkle laws. I just think you're a lot more complicit in pushing us down that road than you do.


"I fundamentally believe that most people are honest, and will take the honest route if offered one."

I used to as well,but research has changed my mind. People will take the cheapest and justify it. They'll buy smuggled cigarettes, they'll buy bootleg anything. They, no we, do it all the time, more in fact than ever before. all we've ever needed, it turns out, is to make it arms' length and be able to justify it to ourselves.

Talking about the admission of illegal activities here: "I'm curious -- why would this matter? Would it change the situation?"

I think it's impoartant. Really, the way First Nations people thought that apology was important. I think we moved past this part of the issue so fast it never got properly dealt with and is one of the main reasons why something that could have been a much more civilized debate, with a much more happy outcome for everyone, isn't. What led to the locks, the infringement on consumers' rights and invasion of privacy has never been properly acknowledged.

"But even if I did agree with you, how would that possibly change the conversation about what to do about it?"

I'd have more respect for you. The same way if I "adopted a geek" to understand your language better, you'd have more respect for me.

Russell McOrmond said...

"Why do you apologize for other people's actions?"

Because I was asked to :-)

Just following orders, and all that.

Infringer said...

"I used to as well,but research has changed my mind. People will take the cheapest and justify it. They'll buy smuggled cigarettes, they'll buy bootleg anything. They, no we, do it all the time, more in fact than ever before. all we've ever needed, it turns out, is to make it arms' length and be able to justify it to ourselves."

No, I think I need to offer more support to Russell here. I know many many more people who would NOT buy smuggled cigarettes, or do other illegal things that benefit them simply because they think they can get away with it.

There is a difference between legal laws and personal moral codes. When the two conflict the legal laws lose out. In the case of smuggled cigarettes, drugs, selling booze to minors, etc, most people's morality are consistent with the law and most do not break the law.

In the case of speeding, 'illegal' downloading, and presumably other things too, there is an inconsistancy between the two for a significant number of people.

If you make a copyright regime that most people consider fair, I agree with Russell that there will be a lot of compliance. Many people do not see the current system as fair and C-61 will make it less so. Add to that the fact that people can get illegally content which simply is unavailable, or very expensive through legal channels. Also add peoples confidence that we as a society will eventually find systemic ways to compensate for these new uncompensated distribution channels, (as was done for radio and cable) and you will quickly find there are a lot of otherwise law abiding people who freely and guiltlessly participate in P2P distribution of protected works.

John McFetridge said...

Infringer:

"Why do you apologize for other people's actions? It is not your fault that you have different moral standards, and it is a little condescending."

No, it's not condescending, it's part of being a member of a community.

"I don't mind both taking advantage of it and in doing so helping the transition along."

As long as you're fully aware of the direction you're helping it in.

"I see nothing wrong with both corporate and government sponsorships of the arts."

Well, you know the problem with governments and corporations, you give them and inch... If they take over completely the sponsorship of the arts they'll think they own the arts. Given their past behaviour...

Russell:

"There is still nowhere for me to commercially download the television shows I want to watch (missed, aren't available on my cable stations, etc) where I pay a reasonable amount of money and receive a file in a standard file format that is usable on all my devices."

That's right. There are lots of things in the world I want and can't have or can't afford. I think what I want to pay is a, "reasonable amount of money," but the seller disagrees. If you can get me this stuff cheaper, that would be great. So far your methods aren't getting me closer to that goal. Now, lots of people have offered to sell me technology so I can get stuff for free, and, as it turns out lots and lots of people are taking them up on that offer. What percentage of the population? In Canada or in the world? More everyday or less? Driven by ideological concerns about poor copyright laws or the desire for free stuff?

"There will always be some people who slip through the cracks, but the more we make this into a war between copyright holders and society, the more copyright holders will lose."

Ideologically, I agree with you. History has shown me otherwise, though. The world may be a better place if it were run by geeks and engineers, but there's that whole 'lawyers up against the wall first' problem.

The copyright holders, the mutinationals, are for most artists the lesser of the evils. We've never really liked doing business with them, but at least they toss us a few scraps and make it so we don't have to learn a lot of technical crap and hang out with geeks (I'm mostly joking on that one, but seriously, for most artists, having someone else handle the technical stuff is great. Making our own web pages and promo videos and handling online sales is not pleasing to us, most of us just don't like it). The multinationals make a lot of money, though, and they aren't going to give it up any more than oil companies or car companies or tobacco companies are going to give up their money.

There should have been a way to get people together on this - that's one reason I think the acknkowledgement of past wrongs is important.

copyright holders might lose. They might not. They aren't either of us, really, and we both may lose. Well, we'll end up with more expensive content and less privacy, but it's true, if we can afford it we'll get all the content we want and we'll even get paid a small one time fee to create it.

Russell McOrmond said...

"I just think you're a lot more complicit in pushing us down that road than you do."

Of the people in the longer version of this thread (4 of us), there is only one person (JohnD) that has publicly endorsed policy statements (those from the CCC) that head us down that road.

"What led to the locks, the infringement on consumers' rights and invasion of privacy has never been properly acknowledged."

Partly because we experienced the timing differently.

Attempts at copy control were heavy in the 1980's for software and other digital media. I've been dealing with this concept long before I was aware of the Internet. At first these took the form of attempts to control the content alone, and then methods to wrestle control from the owner of the computer in ways very similar to the Sony Rootkit decades later.

My first experience with the Internet was in 1991 when Carleton University (where I was attending as an undergrad) connected. Before that the University was only on BITNET on their mainframe (where I also had accounts, including WATPOD accounts as a volunteer for computing services).


The idea of creating laws to add a legal layer to the copy control concepts from the 1980's happened in 1994/1995 as a core part of the National Information Infrastructure task force in the United States (Bruce Lehman's mess). This is when it changed from a silly attempt to wrestle control from the computer owner, to a full-out assault on the rights of the technology owner.


I don't know when you joined the Internet, or when you became aware of the increase infringement there. For most people I speak to it was late 1990's and early 2000's, well after both the 80's copy control and the 1995 NII policy.

The DVD media format was also formalized in 1995, and the movie format contained CSS copy control. This pre-dates when the majority of current Internet users joined the Internet, and long before the youth of today who are alleged to be the worst infringers had access to a computer.


I think it is revisionist to claim that the massive infringements happened first, and copy control later. Attempts at digital copy control existed when owning a computer was still considered a novelty.

That said, I agree with you that those who are infringing copyright are the justification for these attacks on our rights for many people. This is one of the reasons I strongly disagree with infringement, as I believe that the more people do this the worse things will get in the short term.

Me acknowledging that it is a politically bad idea for people to be so blatantly and publicly infringing copyright doesn't do anything for us. All I can do is use social pressure to shun and try to make them feel bad -- I have nothing else at my disposal. Copyright holders have largely (outside of Microsoft and a few other BSA members) opted to not exercise their copyright, so it is not like me calling a hotline to turn them in has any meaning.

John McFetridge said...

"I know many many more people who would NOT buy smuggled cigarettes, or do other illegal things that benefit them simply because they think they can get away with it."

I don't doubt you do. I do, too. But even combined we know so few people in the world. The stats (for what they're worth, I guess) are there.

"If you make a copyright regime that most people consider fair, I agree with Russell that there will be a lot of compliance."

Yes, I agree with this completely, as well.

It's quite open-ended, though, as to what "most" people consider "fair." Will you ever accept a model that "most" people consider fair, but you personally don't?

That seems to be the biggest problem. We have to rely on "most" peoples' acceptance of it, and we don't think they really know what they're accepting.

John said...

We are coming dangerously close to the 100 comment mark, which is when our geekitude becomes terminal, so I may have to blog something else and move on. Since we're getting all abstract, I'll do the same.

I just don't buy Russell's excuse-making for the difficulties behind devising a copyright control system. I wouldn't pretend to understand the science, but that doesn't give you an out. I don't understand how my damn car starts everytime I turn the key. But if you want to back away from a technological solution, you may just have to accept a legislative one. Because the imperative remains the same -- we have damaged the rights of an important sector of our society, and we need to repair the damage.

And I'll say again, if this legislation does not work for software because of its incompatible model, then it looks like we may have to devise legislation special to software. I agree that mixing content with delivery in this bill is needlessly confusing, but I have to point out that the current mixed messsage -- the questioning of the value of copyright and intellectual property (which both you and Doctorow believe is a meaningless euphemism -- helpful) came from the software development community. If you folks wanted to have a conversation about how your models are so radically different that they need new laws, you maybe shouldn't have then also started talking about how all of copyright itself is an outdated concept -- and I know, Russell, that you yourself do not say those kinds of things, but like it or not your ideas are linked with that idea, and that's the fight I'm in with you.

Staying abstract -- I also think removing access to the means of production is a terrible idea, which is why I abhor media concentration. I'm guessing currently in the western world, we live in the most concentrated media environment we've ever known outside fascism, and those of us who care about that (you included) battle against it every day.

But even in this nasty environment, I don't feel completely shut out from the means of production. Independent media, like THIS Magazine (where I write my books column) exists and exerts some influence. The difference is, I think, as we in independent media engage in this ongoing battle for greater diversity, we are not simultaneously chewing up the rights of an innocent bystander.

I know you think creators would find themselves with more rights and more opportunities outside a C-61 paradigm, but you're just not all that convincing about it. Infringer, even less so. That may simply be a case of rhetoric and approach (I know I certainly want to listen to Geist a lot less than I might simply because I find his rhetoric offensive), but it is nevertheless the reality we find ourselves in.

Finally, I was serious about my "police state" request. I have no more patience for that kind of wild-eyed doomsaying. Privacy concessions in the name of a clear benefit to society happen all the time. We figure out the necessary lines through negotiation. The fact that the term "police state" was thrown around the day C-61 was introduced is the worst kind of crass politics.

Infringer said...

"No, it's not condescending, it's part of being a member of a community."

Then I also personally apologize for Paul Bernardo, the Hell's Angels, government corruption, and the Teletubbies.

"As long as you're fully aware of the direction you're helping it in."

As I said. It'll go in one of two directions. It'll go in one of those two directions regardless of any actions I take anyway. What I am also attempting to do, with what very little influence I have is to encourage it to go in the one direction I see as desirable. Alas so far I'm pushing a stone uphill, but there appear to be more and more people helping to push so I have some optimism.

"Well, you know the problem with governments and corporations, you give them and inch... If they take over completely the sponsorship of the arts they'll think they own the arts. Given their past behaviour..."

Well this may be another area we differ. I am a big supporter of the public domain. It benefits both the artist and the consumer. I believe that once a creator has allowed his work to become a part of our culture, then they have to give up some control over it immediately. (expanded fair use) And the sooner it gets fully into the public domain the better. I don't think any one should own the art, not even the artist for more than a minimal amount of time as specified through copyright to encourage its creation in the first place. Corporations even less so.

Culture has to belong to all of us and has to be shared otherwise it isn't culture. But before JohnD tries to make you think I'm saying otherwise, that is not the same as saying that artists should not be paid for their contributions. There are other ways to pay for the arts, copyright and sponsorships are only two. We need more!

John McFetridge said...

It's always interesting for me, what people respond to an what they ignore.

For the record, expanded fair use has been forced on us and we're accepting it, but we're afriad as it gains momentum there'll be no stopping it.

Now,

Will you ever accept a model that "most" people consider fair, but you personally don't?

Infringer said...

"For the record, expanded fair use has been forced on us and we're accepting it, but we're afriad as it gains momentum there'll be no stopping it."

I presumes this refers to current online file sharing. I'd have to say yes and no to this statement. Sure is exists, but it is still technically illegal, and it is still in a transitional state. We don't have any system yet to compensate for the loss of a traditional distribution channel. Bill C-61 tries to remedy this simply by taking us backwards. Watch as we make ALL fair use disappear in front of your very eyes. Poof.



Will you ever accept a model that "most" people consider fair, but you personally don't?

That would depend on just how far off it is from my concept of fair and what the social stigma was associated with ignoring the law. As such, what my personal view is, is irrelevant. Once you have 'most' people on your side you will have significant willing compliance as well as a reasonable amount of unwilling compliance from people who don't want to suffer the social stigma.

Russell McOrmond said...

"I would, Russell, but in the 'geek vs. lawyers+capiatlism' I think, sadly, the smart money has to be on the lawyers. They haven't lost one yet (kind of like TFC at home!)."

I think you are presuming that it is only big bad corporations, and some extremism of capitalism, that is heading us in this direction.

If that were true, fighting it would be much easier.

For a party like the Bloc, it is not foreign corporations they are listening to (unlike the "Conservative" party). They are listening to Quebec creator groups like DAMIC (the Quebec equivalent to CCC) who are calling for this policy direction.

If individual creators, and the associations that represented them, were on-side with technology being in the control of its owners (which includes creators), then we wouldn't have this problem in Canada.

While I bump into lawyers for the transnationals from time to time (Barry Sookman and I have had many conversations, and he is a registered lobbiest for CRIA), but most of the lawyers I hear pushing the NII policy are lawyers for creator groups/unions.

Who's lawyers are really the political problem?

I'm in this thread not because I believe I am going to learn from or change the mind of some nameless corporation, but because there are some interesting people here.


"Now, lots of people have offered to sell me technology so I can get stuff for free,"

Can you give me an example? Other than a few obscure folks like Grokster, which were coprrectly and successfully sued, I can't think of any.

Of do you mean, services that also allow you to get for free things which their copyright holder *INTENDED* to be free, and for which those who want royalties are owed absolutely nothing?


"The world may be a better place if it were run by geeks and engineers, but there's that whole 'lawyers up against the wall first' problem."

Here I disagree. The lawyers are trying to make laws to protect the technologies which dishonest geeks and engineers are telling them work. I don't distrust all lawyers (I have many friends who are lawyers), nor do I trust all geeks and engineers.

People are people, and while there are dishonest people within every group, I still believe the majority are honest. And I've seen nothing in the Copyright debate that would suggest otherwise.

There is a lack of scientific and other knowledge with many of our decision makers (and not just politicians), but that is a general problem in our society that isn't unique to the Copyright debate.

John McFetridge said...

No, it's not just file sharing. A lot of things have been affected. There are a lot of online short story magazines that are free and don't pay the writers taking the place of old-fashioned paper magazines. Most writers I know have been pressured (by various sources) to offer up their work online for free and most of us are finding ways to do that.

I post short stories and audio files of stories for free, for example. There was a time I got a couple hundred bucks for those stories. I'm willing to give that up (my wife's not as keen, but...)

"As such, what my personal view is, is irrelevant."

No, I don't think it's irrelevant. I don't really now you at all, but you're willing to be involved in the discussion so that alone makes what you have to say valuable. And, I'm trying to find a guage here of where there might be some common ground. I figure if we can find some here, we may be able to extrapolate on that.

I don't want to go backwards, either, but we need to take human nature into account. And lawyer's nature, if not entirely human (I'm glad we're still allowed to make fun of lawyers - we are, aren't we?) is still a big part of this. I like to think there might be some compromise but it seems a long way off and I'm afraid no one's doing a very good job of explaining the problems with copyright.

It's too easy to make it sound like a lot of people stomping their feet and saying, "I want free stuff," marginalising them and making it easy to get "most" people on board with bad laws - if, in fact, "most" people are law abiding and moral.

Russell McOrmond said...

"Well, we'll end up with more expensive content and less privacy, but it's true, if we can afford it we'll get all the content we want and we'll even get paid a small one time fee to create it."

You keep saying that, but I don't think it is true. I think if 'content' becomes too annoying to access, that we'll all just move away from our screens and spend more time in other endevours.

Not a bad thing for public health to kill off multimedia entertainment, but bad for human creativity and our collective story telling.

"The stats (for what they're worth, I guess) are there."

Where? Do you mean the entirely bogus CRIA and BSA statistics? I've analysed and critiqued their methodology, and their statistical methods are entirely worthless.

You have to base your analysis on what you know, either from your experience or trustworthy independent analysis. You can't base your fear entirely on the fact there are unknowns. I know it is human nature to fear the unknown, but it isn't helpful in policy debates.



"Will you ever accept a model that "most" people consider fair, but you personally don't?"

We've never come across this situation, so I can't answer it. We've never as a society even bothered to try to ask the question about what "most" people think is fair.


I worry that if people were asked today that what "most" people think is fair would be less copyright than I believe would be good for society as a whole. This would be as a direct reaction to the extremism expressed by some copyright holders (the transnationals, and what for instance you see on the CCC blog from Chris), and not a thoughtful analysis based on all the issues before us.

But less copyright than I believe is healthy would, IMNSHO, be better for society than having too much copyright given the "new" copyright rules regulate things which have absolutely nothing to do with content (IE: regulation against personal control over communications tools).

John said...

I may be putting words in his mouth, but I think Infringer just answered with a no. A weasely no, but negative nonetheless. I do like the part where he says his personal view is irrelevant.

There are other ways for artists to be paid -- yes, and before we know whether or not they work, we should probably abandon the ways we know for the sake of the public domain, which already exists and is quite healthy. The logic is undeniable.

Infringer, for someone who claims such savvy about the importance of the public domain in culture-making, you are remarkably naive about the business of art-making.

Okay, I see you have a small pile of food here in front of you. Here's what I think. I think there's lots more food over those hills there, so what I need you to do is leave all this food here and go looking for that other food I think is there. You go ahead. I'll stay here with this food. What do you mean it's yours? Don't worry about that - lots of food over the hills. Trust me. I know because I've thought about it. There must be more food over the hills.

I'm convinced.

Russell McOrmond said...

"For the record, expanded fair use has been forced on us and we're accepting it"

It has? Where? Not in Canada, and definitely not in C-61.

If you mean the dishonest additions to section 29 of the Copyright act, they aren't even "fair dealings" leave alone fair use.

If you can deny permission via contract, then they are part of the permission part of Copyright, not part of the limitations and exceptions. This is basic language definitions.

I wouldn't be worried about those changes in the act as far as your perspective is concerned, as they have no meaning.

Russell McOrmond said...

"I just don't buy Russell's excuse-making for the difficulties behind devising a copyright control system.

I have no more patience for that kind of wild-eyed doomsaying"

Thats OK, JohnD. I think we have established that we don't have common ground on these issues. We don't agree on which side has the wide-eyed doomsaying (I believe it is you, and your belief that there is a critical copyright crisis that needs to be solved at any cost), and you have already stated you reject the math and science underpinning computer security.

At 107 comments already I think it is OK if I just reply to JohnM, and "Infringer".

John McFetridge said...

Russell:

"You keep saying that, but I don't think it is true. I think if 'content' becomes too annoying to access, that we'll all just move away from our screens and spend more time in other endevours."

I would agree with you if cable TV bills hadn't gone up so much over the last twenty years.

When you say "we'll" move away, you mean you. Do people really find content too difficult to access? Too expensive for some people maybe, but not too difficult. And people put up with the most amazing crap everyday. I agree with you, I wish they didn't, but they do.

"Where? Do you mean the entirely bogus CRIA and BSA statistics? I've analysed and critiqued their methodology, and their statistical methods are entirely worthless."

No, I'm talking about all criminal activity. Even the most conservative estimates put the black market economy at 20% of the world's economy. I'm talking about huge numbes of people easily willing to be complicit in crime to get what they want cheaper.

Canada may not be the best example (although there's a lot more going on here than we like to admit).

"For the record, expanded fair use has been forced on us and we're accepting it"

No, I don't mean through laws. Like I said, it's been forced on us by changes in attitudes and changes to the marketplace that many of us feel is a direct result of world-wide illegal file transfers. We're trying to adapt and a big part of that is by giving away what we once got paid for. The pressure for us to do this has come from all directions.

Certainly we have enough scope to see beyond the words in the law and try to understand the day to day effects of this entire debate.

Infringer said...

"No, it's not just file sharing. A lot of things have been affected. There are a lot of online short story magazines that are free and don't pay the writers taking the place of old-fashioned paper magazines. Most writers I know have been pressured (by various sources) to offer up their work online for free and most of us are finding ways to do that.

I post short stories and audio files of stories for free, for example. There was a time I got a couple hundred bucks for those stories. I'm willing to give that up (my wife's not as keen, but...)"


That's not fair use. Fair use would be my ability to take your stories and rewrite them without infringing your copyright. Fair use is my ability to format shift or time shift ANY content I own. Fair use is the ability to parody or satire. We don't have any of these rights.


"And, I'm trying to find a guage here of where there might be some common ground. I figure if we can find some here, we may be able to extrapolate on that."

Common ground is what is needed, but not common ground with me. Common ground with most other people. Look at this this way. If copyright said that the artist only got control of the work for one year, many fewer people would go out of their way to infringe copyright. On the other hand if copyright was perpetual and there was no fair use, there would be an immense amount of infringement. Somewhere in the middle is a happy ground where there is sufficient copyright to maintain artists but not so much as to offend most peoples senseabilities. The government should be doing extensive consultations with everyday Canadians to find that ground.


"I don't want to go backwards, either, but we need to take human nature into account. And lawyer's nature, if not entirely human (I'm glad we're still allowed to make fun of lawyers - we are, aren't we?) is still a big part of this. I like to think there might be some compromise but it seems a long way off and I'm afraid no one's doing a very good job of explaining the problems with copyright."

exactly my point above.

"It's too easy to make it sound like a lot of people stomping their feet and saying, "I want free stuff," marginalising them and making it easy to get "most" people on board with bad laws - if, in fact, "most" people are law abiding and moral."

That would be what bill C-61 is trying to do.

Infringer said...

"You keep saying that, but I don't think it is true. I think if 'content' becomes too annoying to access, that we'll all just move away from our screens and spend more time in other endevours."

I would agree with you if cable TV bills hadn't gone up so much over the last twenty years.


I too consider this unlikely.


No, I don't mean through laws. Like I said, it's been forced on us by changes in attitudes and changes to the marketplace that many of us feel is a direct result of world-wide illegal file transfers. We're trying to adapt and a big part of that is by giving away what we once got paid for. The pressure for us to do this has come from all directions.

Certainly we have enough scope to see beyond the words in the law and try to understand the day to day effects of this entire debate.


For this reason I think it is important that the laws reflect this and DO NOT outlaw commonly accepted activities. Outlawing activities that most people think should be acceptable will only breed contempt for the law. And when you are making laws that are difficult to enforce, I think it is really really important that the laws are seen as reasonable in the eyes of most people.

John McFetridge said...

Infringer:

"That's not fair use. Fair use would be my ability to take your stories and rewrite them without infringing your copyright."

You've always been allowed to do that and you still can. You just can't profit from my work withour tossing me a few cents.

In fact, I may rewrite the story on your website with a different ending (and I'll have to leave out that line about women not being good with technology, my wife's an engineer and every woman I know under 45 is pretty good with technology).

"If copyright said that the artist only got control of the work for one year, many fewer people would go out of their way to infringe copyright."

Whether the artist agrees to that or not?

I'm curious, Russell, do you agree with this?

Infringer said...

"You've always been allowed to do that and you still can. You just can't profit from my work withour tossing me a few cents."

Actually I think you are mistaken.

From the copyright act:

3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

Infringer said...

I should also state that there is no exception in section 29 (fair dealings) which covers this use.

http://laws.justice.gc.ca/en/ShowFullDoc/cs/C-42///en

John McFetridge said...

Well, okay, you got me, I didn't even realize that.

The thing is, I can't imagine any real artist ever actually wanting to use someone else's material in their own work without that artists approval (talk about socially unacceptable). I mean, the reason you'd want to use it is because you like it, you're glad the other person created it.

Infringer said...

"Well, okay, you got me, I didn't even realize that.

The thing is, I can't imagine any real artist ever actually wanting to use someone else's material in their own work without that artists approval (talk about socially unacceptable). I mean, the reason you'd want to use it is because you like it, you're glad the other person created it."


Oh John, I can tell you don't have teenagers. Even my non-teenagers spend gobbs of time on YouTube. There are mind-bogglingly massive amounts of derived works there. It is how they communicate with each other about everything. Not just about the work they are appropriating. The appropriated work is itself, the medium for communication. Asking them to get permission to use it is like telling someone they need permission before they can voice their opinion. This is the world that lies ahead us, and I do not see why it is a bad one. Bill C-61 will of course make this entire form of communication illegal and and entire generation of people into criminals.

Infringer said...

The other thing is that we are not talking about "real" (and by that I think you mean professional) artists. we are talking about everyday people who are no less bound by the copyright act than the "real" artists are.

Technically everything on youtube is commercial as well since it is all paid for by advertising.

John McFetridge said...

My kids are 8 and 9, so yes, it's what I've got to look forward to.

But I was a teenager, so don't worry, the marijuana laws make sure they're all criminals anyway.

The kids' attitude does tell me, though, that we're headed in a bad way. Not for legal reasons, just for lack of respect. There's clearly none for artistic works and graffitti shows me there's very little for property, as well.

I don't expect to be able to control my boys as teenagers any more than anyone else can control theirs, but I do want to maintain some level of social mores and I might mention to them occassionally that they ought to respect other people and their stuff once in a while.

I'd hate to live in a world reduced to the level of teenager morals.

Now, satire has always been protected (though tricky, I admit) and for the most part, the stuff being shown on YouTube isn't being sold, so it's just that matter of respect and social niceties we're talking about.

I wouldn't mind a change to the law that stated clearly non-commercial use of the material - and the fan fic people are working on that.

Infringer said...

"The kids' attitude does tell me, though, that we're headed in a bad way. Not for legal reasons, just for lack of respect. There's clearly none for artistic works and graffitti shows me there's very little for property, as well."

It's not the kids attitude that tells me we are headed in a bad way. It's the reaction to their attitudes which are emboddied in things like the DMCA and C-61 that tell me that.

This whole concept of respect in regards to culture sort of alludes me. I know, this is no surprise to JohnD. My point is an artist has a story or something-or-other he wants to share with the world. At some point he has to finish creating it at let it go into the world. That creative work will take on a life of its own 'living' through how it is interpreted by others. People will relate to it or they wont, and in the case of YouTube they will express how they relate to it by creating derived works. I don't see where respect is involved. Appreciation sure, but where does respect fit in? And how should respect influence how you interact with the work?

"I don't expect to be able to control my boys as teenagers any more than anyone else can control theirs, but I do want to maintain some level of social mores and I might mention to them occassionally that they ought to respect other people and their stuff once in a while."

See but I have difficulty here. Other than certian rights to remuneration for use of popular works, I think the authors stuff is really not theirs. They allowed it to become part of our culture and as such it is not theirs any more it belongs to all of us. They are compensated financially for it through the rights besowed by copyright, but they have to give up ownership to collect that compensation. If they want to keep control then don't share it.

A similar issue which might help give you understanding of my perspective is the issue with personal image rights. I.E. celebrities who try to control the use of their name and image in the media. They want, and the courts generally have given them, more control over this than regular individuals. They should in fact have less because their image has become part of our social culture. They have been paid, through the work associated with their fame, so have been duly compensated. Therefore within a certain parameter we (society) should have more access to their image then to other individuals. Not less.

I realize I am on the fringe with these views. I only ask that you be able to understand (not accept) the rational for them. I don't think JohnD does either. :-(

"I'd hate to live in a world reduced to the level of teenager morals."

Perhaps, but it is through these changing morals of successive generation that slavery was abolished, womans rights and gay rights were asserted, abortion rights were asserted and many more things.

Morals ARE RELATIVE, and it is the propensity to impose them upon other cultures or other generations that cause wars.

"Now, satire has always been protected (though tricky, I admit) and for the most part, the stuff being shown on YouTube isn't being sold, so it's just that matter of respect and social niceties we're talking about."

Again, if you look you will find that satire is not included in the very norrow definition of Fair Dealings in section 29.

I invite you to check out my website at DeathByCopyright.ca which has a whole host of things which I think have slipped through the cracks of what should be allowable under copyright. You may disagree with some of them. (JohnD disagrees with all) But some I think you will agree with, and we need laws that more clearly allow these uses.

John McFetridge said...

Well, I don't suppose we could have expected teenagers to realize that for every action there'd be a reaction, but certainly we knew that with such a break from centuries old traditions there'd be SOME reaction.

Unfortunately, I think all 'sides' on this are equally guilty of actions and reactions that very aren't helpful in getting any of us where we want to be.

Maybe I read too much Michel Foucault as a kid, but the power dynamics in these relationships don't bode well for us individuals.

Russell has used the words "winning" and "losing" and I'm afraid he may have it there, which is too bad. Just based on history, I mean.

I spent two days with you guys and read your websites and your articles and all the posts here and I'm no closer to understanding any more than, "I want free stuff with absolutely no restrictions and you can't stop me."

I don't know, sometimes you miss a TV show and you can never see it again. I got the flu once and missed an Aerosmith concert at the Montreal Forum. It isn't really in the top ten things I worry about.

There is a large demand for creative content, a huge amount of people willing to pay for it, and to respect the creators' rights. I think we can work it out.

Most artists find that the creation is tough enough and we've been willing to make deals with third parties to handle a lot of the other stuff - those deals haven't been perfect, and they've involved people (corporations, really) that have taken on more of an ownership role in our work than we'd like, but it's the best deal we could find. If a better deal comes along that will benefit us, we'll take it.

I guess I understand your feelings, Darryl, and what you want. I don't agree, but that's fine, we're both grown-ups. I do think the repurcusions of what you want - and the way you are going about showing what you want (like calling yourself "Infringer" for example) are different than you do and I think going down the road the way you want to will lead to more serious problems than the first draft of a copyright law being somewhat flawed. But we'll see.

You mentioned the Hells Angels (there's no apstrophy, by the way). Now, I've done a lot of research there and those are guys with some serious copyright feelings. If you really want to be a rebel, a real copyright infringer and prove a point, you should set up a stall in front of Union Station selling HA tee shirts, complete with the flaming skull logo.

The reaction to that will get you plenty of press for your cause - way more than a website ever could.

John said...

I'm all for clearing up definitions. Where I disagree with Infringer, and interestingly where Lawrence Lessig disagrees with him as well as far as I can tell, is in how the follow-on creator should "fairly" deal with the work she is using.

This is another instance where I have little patience for the excuse "it's too confusing" or "it's too hard." We all should have learned how to quote and reference properly in school, and if we didn't I would blame the education system before I would copyright. I consider that I and McFetridge are fairly creative people, and I know that I have never had any trouble feeling confident in fair dealing my way through someone else's work. Have you, McF?

In fact, I'd go further and say follow-on creativity that can't deal fairly with what it is following onto is qualitatively inferior stuff, worthy of scorn. In the endnotes to his latest novel, Ondaatje painstakingly explains and attributes everywhere he has consciously borrowed, and in his text he limits his borrowing to subtle excerpts. What's wrong with that standard? There is art involved in dealing fairly, and I see a grossly expanded fair use policy as complete artlessness.

Russell, I'm having a hard time with your complete refusal to scorn the crazy rhetoric over there in evil emmissary land. This is not really a case of who started it (since you guys clearly did). If nothing else, you have to see how completely it alienates you from the government with whom you are trying to negotiate. I note in the (digital) paper today that the CRTC is pondering some net neutrality implications (were they reading this comment stream? -- is there no privacy anymore?). I would recommend you don't approach them with a copy of the 51st State.

John McFetridge said...

JohnD,

I'll tell you one thing, this has convinced me is that software and art are very different and shouldn't be lumped together. I guess that's simple enough, one is fairly new and the other from hundreds (thousands) of years of traditions.

I understand that no one is using a piece of software written five years ago as it was written. But I'm reading books written five hundrd years ago exactly as they were written. Okay, it's different. I get it.

I also don't think people really have any understanding of the realtionship between artists and the companies we work with - publishers, music distributors, etc., how collaborative it is and not simply a business arrangement.

Also, I don't think people understand how much of a compromise the already existing lifetime+50 years is. Of all businesses in the world, the arts is the only one that runs out. If you spend your lifetime building up a company, a store, something like that, you can pass it on to your kids and their kids and their kids. Fifty years after you die what you built doesn't become owned by everyone. Like the house you buy, fifty years after you die, it doesn't become public housing.

I had planned to do what someone like Mordechai Richler did - spend my life building a body of work I could pass on to my kids. Maybe my body of work won't be worth anything, who knows? But maybe it will.

The fact that it's become a lot easier for people to pass my work around over thousands of miles has changed my ability to do what Richler did.

There wasn't some big public outcry twenty years ago to do away with copyright.

There were a few people like Infringer who wanted public domain right away. Reasonable people realized this was unreasonable.

As far as I can see, the only thingthat has changed is the technology, which in turn has changed attitudes.

Infringer said...

John McFetridge, I have enjoyed this thread with you I think there was honest attempts to understand perspectives on all sides, which is not a normal experience on Degen's site.

I agree my handle probably does not help by cause, but to explain, I must say that it was part of the Private Infringer stories I wrote, the main purpose of which was to show that we are all infringers. So it made sense at the time.


JohnD said: "This is another instance where I have little patience for the excuse "it's too confusing" or "it's too hard." We all should have learned how to quote and reference properly in school, and if we didn't I would blame the education system before I would copyright. I consider that I and McFetridge are fairly creative people, and I know that I have never had any trouble feeling confident in fair dealing my way through someone else's work. Have you, McF?"

Are you saying here John that had the creators I identified on DeathByCopyright included referenced in their work, or indeed that the posters to YouTube did the same, that there would be no problems with copyright?

JohnF said: "Also, I don't think people understand how much of a compromise the already existing lifetime+50 years is."

Well, I'm sorry John, I don't mean any disrespect, but you are right. I don't understand that as much of a compromise. I think if you use analogies to state granted monopoly powers (What copyright really is) instead of to physical property, you'd understand why.

"The fact that it's become a lot easier for people to pass my work around over thousands of miles has changed my ability to do what Richler did."

I might have liked to work as a fur trader on the Hudson Bay lands, but I can't do this either. We are all a product of our times, and jobs that were viable once, are not viable at other times. Just because they were viable once does not mean that we have to turn the world upside down to try to keep them viable. We have to adapt and move on.

Art is important and we need mechanisms in place to encourage it. As a result of technology, copyright is a less viable tool to achieve this goal. It now acts as more of an impediment than a facilitator so lets adjust it so it stops impeding. That requires a reduction in its term and breadth. Other methods may or may not be required to compensate. THAT IS WHAT OUR GOVERNMENT SHOULD BE DISCUSSING.

John McFetridge said...

"I might have liked to work as a fur trader on the Hudson Bay lands, but I can't do this either. We are all a product of our times, and jobs that were viable once, are not viable at other times."

You're right about this. I've now completed my three book contract (the third will be published spring '09) and I'm now considering whether or not it's worthwhile for me to write another book.

To make it worthwhile for me to spend as much tme as a book requires seems to me it would take laws people hate enough to ignore to make it financially viable.

To make it worthwhile artistically for me to spend the time a book requires I'd want to know that myself and my heirs would have some control over that work for quite some time.

I spent a lot of my life trying to get good enough at this to be a professional - just my bad luck it took me till I was in my late forties, I guess.

I don't really have a problem with a properly regulated monopoly. It's tough to get one properly regulated, that's true, but the capitalist alternatives are usually collusion or bankrupcy. Or people are just naturally honest and operate within the rules without referees, but I've never seen that work.

I was thinking before how I can print up as many copies of 'Pride and Prejudice' I want and sell them all over the world, but if I make some beer and put 'Stella Artois' on the label, some Belgian guy will shut me down - even if the beer I make tastes exactly the same.

So, I should have started a brewery rather than spent so long learning to be a writer. I'm telling you, my kids are going to be strongly encouraged to go to law school.

John McFetridge said...

Oh yeah, one more thing, Darryl.

Those examples on you website show exactly why Russell's idea of using litigation won't work. All those people who were ordered by Marvel comics and Louis Vuiton and the BBC and stuff to stop what they were doing have the right to go to court and fight instead. They might even win, but they'll have to spend a lot of money and they might not, that's the way litigation works.

Infringer said...

"To make it worthwhile for me to spend as much tme as a book requires seems to me it would take laws people hate enough to ignore to make it financially viable."

Well, I'm sure if you were being completely honest, you would also say it would depend on how well your current three books are received, Rowlings last book was sold out before the ink had dried. I don't think a little book piracy will ever bother her financially.

As well, it would depend on what other sources of income you could get. JohnD applied for and received an arts grant which I'm sure helped.

Also it would depend on what your financial need is. If you don't have a compelling need to make a lot of money you might be able to write that book any way. Sure, you can say (and JohnD will say) that will make writing an activity only available to the rich. Well if you think about it hasn't it largely been that way through history anyway. What's changed? Not to say that there aren't things we can do to encourage more art.

"To make it worthwhile artistically for me to spend the time a book requires I'd want to know that myself and my heirs would have some control over that work for quite some time."

See now I don't understand this. The artistic value you get separate from the financial realities that is.

I wrote my Private Infringer stories and was ecstatic when I found literally thousands of people reading them. I've been working on a related story for several months now which is much longer, though still a ways from completion. My hope is to release it on the web. Hopefully thousands more people will read it. THere is nothing anyone could do that would change the value I have for these stories. I don't need control.

I know musicians who love writing and performing music. If they can make money and it great. If they can make a living, even better, but that is not why they do it. They do it because they are artists.

Why do you have to control it to get any artistic satisfaction?

"I spent a lot of my life trying to get good enough at this to be a professional - just my bad luck it took me till I was in my late forties, I guess."

perhaps. I'm sure there was no shortage of blacksmiths at the turn of the last century who expressed the same sentiment. On the other hand I'm sure some of them when on to service automobiles instead.

I think if you looked imaginatively at how you can make the Internet work for you instead of trying to work against it, you might find that you can make a success of it after all.

It's a gamble sure, but so many things in life are. You have to look for the opportunity.

"I don't really have a problem with a properly regulated monopoly. It's tough to get one properly regulated, that's true, but the capitalist alternatives are usually collusion or bankrupcy. Or people are just naturally honest and operate within the rules without referees, but I've never seen that work."

I agree and as such I see a place for copyright in promoting the arts for a long time to come. I just don't think it has any business in my living room, and we may need other methods to compensate for where copyright is now failing us.

"I was thinking before how I can print up as many copies of 'Pride and Prejudice' I want and sell them all over the world, but if I make some beer and put 'Stella Artois' on the label, some Belgian guy will shut me down - even if the beer I make tastes exactly the same."

Well now you are getting into trademark issues. You can read chapter I of private infringer to get an idea of how I feel about this.

Infringer said...

"Those examples on you website show exactly why Russell's idea of using litigation won't work. All those people who were ordered by Marvel comics and Louis Vuiton and the BBC and stuff to stop what they were doing have the right to go to court and fight instead. They might even win, but they'll have to spend a lot of money and they might not, that's the way litigation works."

I've taken people to court before. It cost me 50 bucks. In small claims you can recoup at least 5 thousand, though it's been a while. It might be more now. If you think your damages exceed 5 thousand, then what is the issue with spending a bit more money to take it to a higher court. Why is that such a burden?

I've never gone to small claims for copyright infringement, but it seams reasonable that you could.

Many of the cases on my site the plaintiffs got what they wanted. The material was removed. Wrongly in my view, but there it is. All it took was the threat of legal action. So how has the legal system failed in these cases?

John McFetridge said...

Well, international copyright claims aren't small claims stuff, they're usually over many jurisdictions (usually at least two) and involved legal specialists.

I have a friend who's a patent lawyer in the US and admits they win most cases through other than straight legal means - expensive delays (not co-incidently the exact same as mob lawyers, with whom I am even more familiar) the main one.

I'm not sure why the control is important to me. Seperates me from self-published amateurs maybe? This isn't a hobby for me. Tradition maybe, because it always was that way? I'll think on it some more.

But I will say, after being paid and published a few times, and seeing good reviews in the Globe and Publishers Weekly and other sources, the thrill of a few thousand people reading my stories on their computers doesn't do as much for me anymore. I will think about it it some, though, and try to come up with reasons.

But I do think if I had known the legacy aspect of my work would be so challenged I might have gone after something else. I chose to write books for artistic reasons - it's the best way to tell the kind of stories I want to tell - but also for the lifespan of books.

I was in the movie business for a while. The pay is better - or seems better because it's all up front, there's something called a buyout which I excersized on my screenplays - but there's no legacy.

I had expected that my books would stay around a little longer generating a little cash now and then for my kids over many years. The way it did for lots of other writers in previous generations. Not Rowling money, of course, just a few bucks, maybe a couple thousand a year. Over twenty years it could add up to maybe a down payment on a house for my kids, something like that.

But the blacksmith anaogy says it all. I could have been an auto worker in Oshawa. My dad climbed telephone poles for Bell for years, but now those guys are subcontractors with fewer benefits than he got in the '60's. Change happens, right?

I won't really know about sales, the first two books come out in the US on July 21st, that's the real teest, but as I said, the people at BookExpo asking if they'd be free online soon was worrying.

My work is probably too commercial for government grants - they don't give many for crime fiction.

I could find a way to make the internet work for me, I guess, it means another whole learning curve past the writing and I have to decide if that's the curve I want to get on.

I've got fifteen to twenty productive years left (well, a few more if I really am the next Elmore Leonard as a bunch of reviews said) so I have to consider these things practically.

Infringer said...

"Well, international copyright claims aren't small claims stuff, they're usually over many jurisdictions (usually at least two) and involved legal specialists."

Correct me of I'm wrong, but if you are looking and international copyright litigation, then presumably you are also looking at much higher potential damages. Unless of course the motivation is not for financial loss, but loss of control, in which case I have difficulty have too much sympathy.



"But I will say, after being paid and published a few times, and seeing good reviews in the Globe and Publishers Weekly and other sources, the thrill of a few thousand people reading my stories on their computers doesn't do as much for me anymore. I will think about it it some, though, and try to come up with reasons."

I can see that. The threill of being published and the good reviews could easily exceed that.

"But I do think if I had known the legacy aspect of my work would be so challenged I might have gone after something else. I chose to write books for artistic reasons - it's the best way to tell the kind of stories I want to tell - but also for the lifespan of books."

That would certainly have been a pity for you and for anyone who has read your books and considers themselves a fan. (Sorry I never have, but after this week, I just might.) But in the grand scheme of things, when people have so little time to read, and there are more and more writers who do self-publish on line (some free some not) I'don't think there would have been a huge hole in culture.

Of course that is the amaizing thing about culture. There are never voids left unfilled by things not contributed. It is only after something has been accepted into our culture that you think how much worse it would have been had that work not been contributed.

So I guess all you can do is try and whether you make any money at it and whether the work becomes a piller of culture itself, is entirely a crap shoot.



"My work is probably too commercial for government grants - they don't give many for crime fiction.

What? It's more commercial than JohnD's Hockey fiction? I don't know, but I doubt that. I think you should look into it.

"I could find a way to make the internet work for me, I guess, it means another whole learning curve past the writing and I have to decide if that's the curve I want to get on."

Yup. Just like Confucius' curse. 'May you live in interesting times'.

We do.

Russell McOrmond said...

"I'm curious, Russell, do you agree with this?"

I would need to understand the scope of the question before I could answer.

Unfortunately, I can only answer with some general thoughts about copyright term.

I believe that having the term of copyright of past creators be limited is just as important to me as a creator as having my own copyright last a reasonable amount of time. For every type of creativity, there is a different "magic number" of years.

And I want a public domain -- not a "don't need permission, but still need payment" which might work for those of you using royalty-based business models, but collective licensing is effectively a denial of permission for all peer production or other royalty-free business models.


I believe that while having "no formalities" rule made sense in the 1800's when Berne was first drafted, I believe it is backwards in this modern age to say that we should be creating databases of that majority of works which are in the public domain rather than the tiny sliver that is still under copyright. Registering copyright is far less onerous a task than doing copyright clearence, and I consider it unfair to follow-on creativity (which is most creativity for those who are honest) to not have registration.

I agree we need to hash out the fine print and ensure that registration is easy and cheap, but the principle stands.

While for some works (like books) knowing the small number of collaborative authors is relatively easy, knowing who the author(s) are for an increasing number of works (software, recordings/photography, etc) is nearly impossible -- and thus we should get rid of the "life+" part of the term and only do a fixed number of years from an easily determinable point in time (IE: when a recording was made, when software is published, etc).

Sorry -- long answer for short question, but that is the nature of Copyright.

Russell McOrmond said...

"I mean, the reason you'd want to use it is because you like it, you're glad the other person created it."

There are situations where this assumption is false, which is why most countries have limitations and exceptions to copyright to deal with critique and parody.

Russell McOrmond said...

"Russell's idea of using litigation"

It's not my idea of using litigation. What this is called is "Copyright". Copyright is the law that gives a copyright holder the right to sue someone who does the activities listed without the permission (or sometimes exceptions only needing payment) of the copyright holder.

That's it -- that's copyright.

If you have abandoned copyright, and want to use some other mechanism other than copyright to control the uses of your work (IE: targeting people other that copyright infringers, targeting technology, etc), then please at least acknowledge that this is something other than "Copyright".

It makes talking about these other ideas far easier to not confuse them with an established legal concept.

The bulk of Bill C-61 is about what is often called Paracopyright.

Russell McOrmond said...

"I'll tell you one thing, this has convinced me is that software and art are very different and shouldn't be lumped together."

If you bundle with software other "functional knowledge" like non-fictional educatinal material, scientific and medical material, law (laws, bills, court decisions, etc, etc) then we agree.

I would go further and suggest that there is more than just "functional knowledge" and "art", with other categories existing as well that need to be looked at differently than these two. I consider a lot of recordings to be a third category, where the point is to be an extension of our memory faculty and not either of function or art.


But if you think "software" is entirely unique from other functional knowledge, then we'll disagree.

Software (rules obeyed by computers) and law (rules obeyed by humans) are relatively unique in that their descriptions are covered by copyright as a literary work, but the meaning of those descriptions further regulate what you can do with any human creativity it touches.

This to me has always suggested we need to be careful to keep exclusive rights on this functional knowledge to a minimum, given excessive exclusive rights here can be leveraged to remote-control other creative processes and possibly nullify the benefits of exclusive rights for other creators.

Unfortunately, legislators have thus far disagreed, with software being the only type of human creativity that is regulated by both copyright and patent law.

Russell McOrmond said...

Interesting -- I never realized it before, but with the email notifications this blogging tool works as well for this type of conversation as a mailing list. And it is archived chronologically on the website if anyone else wants to anonymously read. I'm going to have to look into adding an email notification module to my BLOG.

"I also don't think people really have any understanding of the relationship between artists and the companies we work with - publishers, music distributors, etc., how collaborative it is and not simply a business arrangement"

It really matters who you are, and what type of company you are talking about.

I have many friends who are singer/songwriters (To stay away from software, which you consider "special").

They have the same positive feeling about their music publishers (composition side) that you and JohnD talk of with your book publishers.

Get them talking about their (or other) recording label, however, and the only positive thing you will hear is from those with independent labels which largely stay out of the way.

There is a very bad relationships between musicians and labels, and it is only getting worse as the historical value-add of the labels decreases. In fact, the worst infringers of recorded music copyright I have personal knowledge of are all musicians. They feel less than *ZERO* moral problems infringing the copyright of the label -- in fact, some try to lecture me for my questionable morals for choosing to not infringing label copyright.


"Of all businesses in the world, the arts is the only one that runs out."

While I don't expect you to agree with it, it may be helpful for you to understand another perspective.

Works covered by copyright, patents, etc are the only types of human labour that you do once and can get paid multiple times over a period of time (a legal fiction creating a sort of perpetual motion machine). For most human activities you do something once and get paid for it once.

The rest of us need to take the money we make from the labour we do today and save/invest it for the future.

A divide in this conversation will always exist between those who see copyright as "product" that should be compared to a tangible thing (See: Jefferson Debate), and those who see it as only a tool to ensure that those who provide important value-add to human knowledge are adequately compensated for it.

For many of us, getting paid once is all we want and we have no interest in royalties or other residuals.

I take a human rights approach to copyright, which is to say it should be an expression of the balance of right expressed in the UN UDHR. When it comes specific to authors rights it is primarily a balance between two things:

Article 27.

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.


Where most of the arguments come from are definitions of what constitutes "moral and material interests". I don't consider royalty payments to be a synonym of "material interests", but a narrow business model which some people might choose to use to express their material interests.

I don't believe that this clause should seek to guarantee the success of any specific business model, but ensure that if someone is making money based on human creativity that the copyright holder has a say in that (limited in time, to balance with the other human rights).


Even that definition doesn't always clarify things. We have seen in this conversation the suggestion that the only reason for an ISP connection is to share royalty-based content. It is an idea that I totally reject, but it is a commonly held belief of those in traditional creator communities.

John McFetridge said...

No, I agree with you completely about functional knowledge.

I disagree about why we're in this mess and why bills like this are being passed and I do think you're taking the wrong approach, and are a little more responsible than you will admit.

Capitalism is, as I've said, a virus. An opportunistic, evil virus. It's really much worse than you think and not reasonable enough to have conversations and compromises with - it never has been.

Now, I don't know what your reaction was when Napster first took off, or when torrent became a verb, but if you didn't see that the reaction to those would be sledgehammers, well, then naive isn't a strong enough word.

Illegal downloading was a gift to the multinationals (and I do wish people would stop saying Americans, as if Bertlesmann and Pearson and all the other non-Americans are okay with all this) who want to sew up ownership of everything. I would almost think it was an inside job, it was so perfect.

You're right about the need to open all this information to the public domain, but you're going about it so wrong. You're trying to win a fight with people who go to war to protect profits (in many cases the exact same individuals, but mostly just the same mindset).

It's like the cyclist who gets run over by the truck, insisting he has the right of way the whole time. He did, of course, but he's still dead.

And it's too bad, and it didn't need to be like this. It's almost as sad as the potheads on Capital Hill trying to get changes to the marijuana laws. Everything they say is true and correct - and they make zero headway.

I'm not sure what could have been done. Maybe nothing, maybe the determination of the 'bad guys' was so great it would have happened anyway. Yes, the very first DVDs had copy protection, but of course, the first CDs didn't - something happened in between those two, that was when the opportunit was the greatest.

Treating people as social outcasts didn't help at all. I heard all the justifications. People didn't need much and what you (not you personally, but the hysterical anti-copyright bloggers) gave them was enough. They only read the headline, "Copyright is an infringement of your rights," and didn't bother with the dcetails.

I hate to see things framed as "win" and "lose" when one side has no soul and will crush everything in it's way, and I'm even more unhappy that in order to protect the meagre living we artists eke out we've been forced to side with them, but we really see no choice. They'll toss us some scraps, at least.



And they will win. Moral superiority and being right has never slowed them down before.

Russell McOrmond said...

"I spent two days with you guys and read your websites and your articles and all the posts here and I'm no closer to understanding any more than, "I want free stuff with absolutely no restrictions and you can't stop me.""


Just so you know how thing sound from the other side, here is my shortest summary:


"The sky is falling, the world really is flat, I don't want to lift a finger to help myself, and I blame you for everything that is wrong with universe".

Oh, well.

Russell McOrmond said...

JohnD,

"This is another instance where I have little patience for the excuse "it's too confusing" or "it's too hard."

By the way, I agree on this. But I believe it applies even moreso to the much simpler task of registration and renewal of copyright than it does to proper attribution in new creativity of what past creativity it was built upon. The lack of a registration requirement and the resulting database is in fact one of the reasons it is far harder to do proper referencing than it should be.

John McFetridge said...

"The sky is falling, the world really is flat, I don't want to lift a finger to help myself, and I blame you for everything that is wrong with universe".

Ha, yeah I guess it does. That made me smile.

Well, people always have a tough time with change. Especially technology change.

But my fear of change is nothing compared to the people who are making serious cash off the old system.

I have taken a bunch of steps to help myself and I actually think I can work with a new model... not as well as before, but I'm used to making sacrifices in my life.

My problem with this is the same as yours - the heavy-handed over-reaction from people who want to stomp all over my rights.

And, I fear that in their efforts to prtect what isn't really theirs, they're going to make things even worse.

I hope you can stop that. I hope you can get this stuff regulated. I still fear that far too many people will agree to the idea of paying a huge monthly fee to be hooked up and 'rent' stuff all the time instead of buying it. The same way they hopped on board the leasing of cars.

I hope you can convince people this is a bad model, no matter how well it works in cable TV and other leased stuff.

Infringer said...

Thank you Gentlemen for a stimulating conversation.

JohnF, it's been edifying to hear your perspective. Blood sucking multinationals on one side and a lawless evolving Internet on the other. It's definitely a difficult spot to be in.

Russell, you distinction between software (or knowledge) IP and creative art IP was also very illuminating.

JohnD, I hope we didn't soil your carpet to badly with the martini stains. We left the keys under the mat. Don't worry, this thread is not indicative of what your blog is becoming. We can certainly return to the mud slinging upon your return from Buffalo.

John McFetridge said...

Yes, as if spending time in Buffalo wasn't bad enough, coming back to this mess.

You know, thinking about it, I realized that earning income from copyrighted material through royalties is very much like tenure.

You don't get it on your first day, it builds up over time through your body of work. Not everyone gets it.

And it has some of the same advantages of tenure - personal and for the community. You can take mor risks with your work if you've got that to fall back on, like tenure, you can be more experimental and do more theoretical work - which, yes, is even important in art, music and literature.

Maybe you'd do it anyway. Maybe there would be professors without tenure. I'd like to find out, though it's a fairly big risk.

Anytime you want to start a lobby group to eliminate tenure and pay profs one time fees for the work they do, sign me up.

Russell McOrmond said...

I thought we were winding down -- and then you bring up a topic we haven't ripped apart yet. Sorry JohnD -- I tried not to reply.


"Anytime you want to start a lobby group to eliminate tenure and pay profs one time fees for the work they do, sign me up."

Just so you understand some of the other perspectives on this.

Tenure isn't about getting paid more for the work done in the past, but increasing payment based on experience/etc.

The most valuable thing for artists isn't the residual economic value of their historical works, but the reputation value their past works have built within the broader community. Your next work, whether you do a one time selling or charge royalties, increases because of the reputation value built up from previous works.

Contrary to the assumptions that you have made, this dynamic doesn't improve with increased copyright terms. In fact, I believe it would increase with decreasing and more certain copyright terms. (IE: fixed from easily determinable start, without the life+ part). Renewed life and reputation (and thus economic) value can come from some older works entering into the public domain, and being built upon.

But back to the professors...

I am, however, part of a growing lobby of people trying to remove royalty payments from profs for any participation that they have in educational materials. I believe that the work that we (taxpayers) pay for as part of their salaries should be released under "open access" terms.

I don't believe this should be optional. I believe that professors should have a choice about whether they are publicly funded through an educational institution, or whether they charge royalties. Currently some of these less honest folks are double-dipping from the public purse through getting paid salaries from the institutions and then again as a royalty-based copyright holder for the textbooks they have contributed to. They distract people by claiming it is "Access Copyright" or the educational publishers that are the ones trying to rip off the educational sector, but at the end of the day it comes down to double-dipping professors.

Access Copyright would not be in the mess it is in today if the educational sector would settle its internal battles. The bulk of the money flowing through AC is educational sector in nature.


This Open Access movement is already moving forward with some funding agencies, mandating Open Access licensing terms for the results of publicly funded research.


I believe that Open Access (pay professors once for their contributions, above and beyond their salaries) is the best solution to the outright war that exists within the educational sector between educational publishers (often using Access Copyright as their spokesperson), educational funders and admin (CMEC, etc) and actual educators. The battles and the rhetoric here is extremely nasty, and continues with the stupid educational use of the Internet additions to C-61 (30.04, pretty much all the additions to section 30 are a bad idea).

John McFetridge said...

Well, yes, we were winding down, but I am learning things here that are worthwhile, so thanks for continuing to participate.

"Contrary to the assumptions that you have made, this dynamic doesn't improve with increased copyright terms. In fact, I believe it would increase with decreasing and more certain copyright terms. (IE: fixed from easily determinable start, without the life+ part). Renewed life and reputation (and thus economic) value can come from some older works entering into the public domain, and being built upon."

Okay, they key here is, "I believe."

You may be right, you may be wrong. We still haven't dealt with the fact that your beliefs have empowered a lot of people to act on their own as if this was already the case, but I'll agree that's for another day.

Now, I'm open to all the possibilities. Many of these changes could be very good for people like me and if what you "believe" is true, everything will be fine.

But people (and often I'm one of them) don't always dig so deep into the issues. When many people, artists, see the words, "public domain," what they see is an active maketplace of buyers and sellers of their work - without them.

Also, in every other "pure" model in the world (free market, communist, socialist, whatever - as I've said, they all 'work' in theory) abuses are rampant - outright illegal activity and twisted, letter-of-law acceptable but completely against the spirit. There's always going to be a need for some recourse.

If you've found a way around that central component of human nature, or a way to eliminate it from the equation, that'll be great.

"Renewed life and reputation (and thus economic) value can come from some older works entering into the public domain, and being built upon."

Yeah, how? Or maybe better, what it doesn't? What if the value is lost? The thing is, we know how the current system works. It's not perfect, but we know it.

If we throw it out and try a completely new model and it doesn't work (just for the sake of argument, what if what you "believe" will work, doesn't - lots of things very smart people have believed would work in the world didn't) there's no going back.

We're all trying to make the world a better place, but as the saying goes, the only thing you can do quickly is damage.

Russell McOrmond said...

"If you've found a way around that central component of human nature, or a way to eliminate it from the equation, that'll be great."

You can't eliminate human nature. You can only try to devise ways to harness it for your own benefit.

"If we throw it out and try a completely new model"

I'm not the one claiming the old model is dead (charging royalties on past works), you are. I'm not convinced of the "evidence" you have been of this death.

You may know the old model, but for younger creators all the models are fresh for them. They don't see your "old" model as any more proven in the current marketplace than the so-called "new" ones. In fact, you yourself claim that the "old" models are dead or dieing -- and younger creators are listening and simply making different decisions than you are (IE: adopt alternatives to what you say is dead, rather than trying to fight against human nature).


When I was moving from just playing around to wanting to create software as part of my living the options you are calling "new" already existed. They weren't as dominant as they are today, but they weren't 'new' either. Most of the evidence I saw in the early 1990's suggested that there would be no money for me in the "old" way as that variant of the industry had been too consolidated and layoffs and other reductions in this workforce were already the norm.


I guess one of the areas we see things differently is the link between copyright and technology. All of copyright is a reaction to technology, as nearly all the activities (except maybe public performance by humans, a subset of the public performance part of the act) are technological activities.

So, of course copyright will change as technology changes. And copyright will continue to change as technology changes in the future, and nothing of what we are talking about today will be relevant 20 years from now. (Except maybe the archives of this message thread for historians ;-)


The question is whether we will embrace the ways the new technology will benefit creators, or try to deter or limit the technology. Our history as been to embrace new technology to allow new forms of creativity. It is only at this time in our history that we have ever seriously considered hobbling the technology.

Look for quotes from John Philip Sousa on the evils of the technology to record music, or Jack Valenti on the VCR. The "sky is falling" doom-and-gloom that these folks were spreading turned out to be false, as will much of the doom-and-gloom about citizen controlled media (communications devices and the Internet).

Unfortunately, unlike the legalization of the recording industry and the home theatre industry (to the massive benefit of the creator communities as a whole!), government seem to be wanting to turn back the clock this time.

Yes, something is new at this point in time, but it isn't what you are claiming it is.

Russell McOrmond said...

JohnD,

Something I'd like to hear more from you is about this comment.

"I would recommend you don't approach them with a copy of the 51st State."

It has been my experience that the artistic community tends to be more "left of center" than those of us in the "functional knowledge" community where libertarianism is more popular.

Given this, I was not surprised by the specific rhetorical devices or images that the artist who created that comic used. I have spent quite a bit of time with people from the left over the years in common cause, and I've learned to focus on the overall goals we have in common and not the specific style we may be different on.


While I'm not as left-of-center as the comic, it is hard to argue with the well referenced facts that this comic was based upon.

The bulk of C-61 is as expected, a implementation of the NII policy that came out of the Clinton/Gore government. Claiming that this is a made in Canada bill is false.

(Note: NII and 1996 WIPO treaties have commonalities, but the WIPO treaties had the input of a broader set of authors and thus is different logic. C-61 is NII, not WIPO).


In "functional knowledge" terms, it is simply a "port" to another language. In software it happens often that you design some software, and then impliment that same software in multiple computer languages. The "logic" behind the software is the same, even if the specific words used conform to expression demanded of a specific computer language.

That is the relationship between the NII, the DMCA and Bill C-61 -- the DMCA and C-61 are simply expressions in a specific country's legal code of the same underlying logic.

John McFetridge said...

"You may know the old model, but for younger creators all the models are fresh for them."

Yeah, and they rent apartments and I bought a house. Which model will work better when we're seventy?

"In fact, you yourself claim that the "old" models are dead or dieing."

No, I'm saying they are being killed. But I may very well be wrong, I am often. Or, it may be for the best, that's certainly possible.

I'm also trying to speculate, to follow this line of thinking to its extremes because that's often where things end up. Many times in history we've started with a perfectly good idea. but years later it gets twisted into something none of the creators of it saw coming. Perhaps the original idea of copyright is one of those ideas that went way off - I'm willing to consider that's possible.

Are you willing to consider that any of your ideas may become twisted and not play out the way you hope or believe they will?

"It is only at this time in our history that we have ever seriously considered hobbling the technology."

Well, no, actually. Humans have a long history of trying to hobble technology, from the Chinese refusing to allow ocean going boats to restrictions on weapons technology. It may be wrong-headed and counter-productive, but it's not new, it's what we've always done. Humans fear change. It might be a better idea to help them with it instead of just telling them they're wrong, but that's also never been human nature.

"Yes, something is new at this point in time, but it isn't what you are claiming it is."

Oh, I'm not claiming to know what it is at all, I'm still trying to understand it.

What I do understand are the advantages of building equity and of getting older. I understand I won't be able to work as hard at sixty-five as I did at thirty. I understand people who work in high tech usually like to work sixty hours a week or more - I've heard them brag about it.

I am from a different generation. Maybe we were too selfish, but we had this idea that the work in our lives would be front-loaded, that we would build something we could continue to benefit from as we age and become more and more feeble and less able to work. If that idea still holds, great, there's no problem here.

My fear is that we'll all end up on a treadmill we can't get off. But if that's way off base, if there are no royalties but the one-time up front payments are big enough I can always invest that money. My personal investments, while not always the most ethical (I own a bunch of shares of Imperial Tobacco, for example), are doing pretty well.

John McFetridge said...

"While I'm not as left-of-center as the comic, it is hard to argue with the well referenced facts that this comic was based upon."

Like I said (maybe JohnD will give a better answer), the potheads have all the facts on their side, too, but no one's listening to them.

What stuff like the comic does, is make it easy for some people to ignore the referenced facts and deal only with the presentation - dismissin the whole thing.

You're back to being that cyclist with the right of way getting run over by the truck. Being right, sadly, often isn't enough.

Russell McOrmond said...

"Are you willing to consider that any of your ideas may become twisted and not play out the way you hope or believe they will?"

If they were "my" ideas, I would be worried.

I'm just observing what happened in the past (incumbent creators fear new technology, society finds ways to harness new technology to the benefit of creativity as a whole), and looking at various ways in which the same thing can happen in the future.

I could easily be wrong about the benefits of a given forward direction, and historians may consider my views to be silly.


But I don't in the slightest believe I'm wrong about the harm from trying to turn back the clock and create a prohibition against personal ownership and control of communications technology.


"I own a bunch of shares of Imperial Tobacco, for example"

I'm curious -- if government policy and changes in the public's attitude towards Tobacco causes the value of this investment to fall, is that "Theft"?

The reduction of the value of this investment is my prediction, and we'll see in the coming decades which of us is right.

I've never understood why the reduction of the value of copyright (whether lawful or unlawful) is considered "theft", but the reduction of value of other assets is not.

Russell McOrmond said...

"Like I said (maybe JohnD will give a better answer), the potheads have all the facts on their side, too, but no one's listening to them."

I think the legalization of medical marijuana suggests this is not entirely true.

It is not like the only message is of the style of the comic. Opposition to the NII policy direction (and thus C-61) crosses all traditional political boundaries.

In fact, my primary message is a rather right-wing property rights message that makes many on the left cringe.

If you get an email from me (send a hello any time), you will see my signature says:

Russell McOrmond, Internet Consultant: http://www.flora.ca/
Please help us tell the Canadian Parliament to protect our property
rights as owners of Information Technology. Sign the petition!
http://www.digital-copyright.ca/petition/ict/

"The government, lobbied by legacy copyright holders and hardware manufacturers, can pry my camcorder, computer, home theatre, or portable media player from my cold dead hands!"



Yes, I make a reference to Charlton Heston's NRA reference to gun owners rights.

See also: Rush, Ayn Rand, and the "Conservative" party's copyright bill

John McFetridge said...

"I've never understood why the reduction of the value of copyright (whether lawful or unlawful) is considered "theft", but the reduction of value of other assets is not."

It's simple really. Let's take cigarettes as the example. the value of my shares will diminish if people smoke less.

The value of my copyrighted material will diminish if people stop paying me for it, but they may, in fact, continue to aquire it in even greater numbers.

It's the aquiring of it that gives it value. People want to own it (they don't just want to 'use' it, they want to own it).

As long as people continue to aquire cigarettes, the shares I own will continue to hold value.

As long as people continue to aquire my art, it will continue to hold -- no wait, fifty years after I die whether people continue to aquire my art or not, my legacy is out of the equation. Someone else will get all the benefits from peoples' desire to aquire it.

John said...

Seriously, you guys can stay in the rec room as long as you want, but I need to move on -- other writing work to do.

Russell, I'm beyond left/right on this if you hadn't noticed. Personal voting histories have nothing to do with my approach to this issue -- though I am not at all surprised to hear you refer to yourself as a libertarian. You, and others, may appreciate that comic as some sort of comprehensive reference tool -- though comprehensive it is only on one side of the boat -- but a reasoned and nuanced advocacy tool it is not. In consciously and intentionally avoiding and/or ignoring reasoned arguments that do not support its position, it is propaganda, plain and simple. Celebrating it does nothing positive for your position, in my opinion.

Anyway, there's a new posting on this blog. I'll be hanging out over there.

cheers,

--jd

John McFetridge said...

"The government, lobbied by legacy copyright holders and hardware manufacturers, can pry my camcorder, computer, home theatre, or portable media player from my cold dead hands!"

I think you may still be confusing the idea of having unlimited access to the material with owning it.

It's very likely that all those technologies (well maybe not the camera) will be forced into obsolescence and you'll end up with a viewer of some kind and a monthly subscription to all the material you want.

You may not like this model (niether do I), but given the way the media industry has been going, I suspect it will happen. It will be a fairly easy sell to "most" people and captialism has little interest in the fringes of the marketplace.

Infringer said...

My god don't you people ever go home.

I wont common on all the posts this morning, but I would like to explore the last one of JohnF's a little more.

"It's the aquiring of it that gives it value. People want to own it (they don't just want to 'use' it, they want to own it)."

But this doesn't work in the other analogy I've heard Russell use often which is when your neighbour does not maintain their property, and as a result your property value is diminished. Should you be able to sue your neighbour for this lost value? Did he steal from you?


"As long as people continue to aquire my art, it will continue to hold -- no wait, fifty years after I die whether people continue to aquire my art or not, my legacy is out of the equation. Someone else will get all the benefits from peoples' desire to aquire it."

John, 50 years after you are dead you have had more than enough time to expliot this monopoly. It isn't "someone else" who will get all the benefit. It is EVERYONE else. Remember you allowed your work into our culture. You have been duly paid for your contribution. Now it is time to allow the rest of us to creatively explore the work without having to seek permission of the author who might disagree with the new work.

Just curious. Do you think copyright should be perpetual. Should Shakespeare's works still be under the control of Shakespeare's heirs?

John McFetridge said...

This is really the danger of working from home ;)

"Just curious. Do you think copyright should be perpetual. Should Shakespeare's works still be under the control of Shakespeare's heirs?"

Yes, frankly. If they want to put a reasonable price on it for people to buy, then people will. If they price it out of the marketplace, we'll buy someone else's. We really could live without new editions of Shakespeare.

But so far, copyright holders have never priced something out of the marketplace.

Now, I did turn down an offer of film rights to my first novel and I'm sure glad those cheap bastards couldn't just go make their crappy movie anyway.

The problem with this idea that we 'can' have access to everything we want is how it's being abused into 'should' have access. There are now property laws that say if the owner isn't using the property to the full extent someone else could, it can be appropriated. These are being fought, of course, but they come from the same mindset.

My copyrights, your property rights. It should be up to us if we want to sell.

Russell's analogy of house values is specific to real estate and simply can't be extrapolated to anything else. It's also complicated by mortgage holders and property taxes. I have to clear my planned renovations with my mortgage holder and in many cases if the house is falling into such disrepair that it would really affect real estate values (which would most often require more than one house on a street for that effect - I mean, I live in the Beaches, talk to me about real estate values) it would likely have passed into a civil matter.

Look, I had to get my nieghbour to trim his trees. If he said he didn't want to, the city would have done it and charged him on his tax bills.

It's part of living in a community. We benefit from having neighbours and we have to put up with stuff from them, from time to time, We make allowances, we compromise.

We don't very often get everything completely the way we want it.

John McFetridge said...

"Now it is time to allow the rest of us to creatively explore the work without having to seek permission..."

Now that's just impolite.

Infringer said...

Yes, frankly. If they want to put a reasonable price on it for people to buy, then people will. If they price it out of the marketplace, we'll buy someone else's. We really could live without new editions of Shakespeare.

That is interesting. I don't think I ever quite realized how (from my perspective) radical you views were.

It's not a question of selling the work work at a reasonable price. It is a question of freedom of subsequent artists to derive works from it, and reinterpret it.

From your previous post:

"Now it is time to allow the rest of us to creatively explore the work without having to seek permission..."

Now that's just impolite.


This may well be true, but as politeness is a rather subjective quality, a rich and vibrant public domain is the freedom to be impolite.

What if Shakespeare's heirs never gave permission for West Side Story? What if all the multitude of fairy tale authors never gave Disney permission to reinterpret those works. Or possibly even work, forced the above creations to follow some preconceved notion of what the original artist thought was good art.

It is imperative that subsequent generations of artists have the freedom to reinterpret previous works as they wish. Without that freedom our culture stagnates.

Here is a compelling quote from Lawrence Lessig.

#Creativity and innovation always builds on the past.
#The past always tries to control the creativity that builds upon it.
#Free societies enable the future by limiting this power of the past.
#Ours is less and less a free society.

John McFetridge said...

"What if Shakespeare's heirs never gave permission for West Side Story? What if all the multitude of fairy tale authors never gave Disney permission to reinterpret those works."

What ifs are tough. We'd just have to write new stuff. But I don't think it's ever happened. There was just a case where Nabakov's son was trying to decide if he should follow his father's wishes and burn his final, unpublished manuscript or offer it to publishers. Guess which one he chose.....

I have a friend who is a fantastic guitar player. And he writes pretty good songs. But he doesn't want his art to cross the line into commerce so he doesn't record tham and he doesn't sell them, he just plays them for himself and his friends. It's his choice.

But once art crosses that line it becomes part of the world of commerce.

There would always be a gray area of how much inspiration could be used from another's work. Each instance would be specific, of course, as each work of art is unique. Just like satire and parody. It's difficult, no doubt about it, but we're clever people, we can work it out if we really want to.

Economics 101 (it was called something else when I took it in 1981) "The value of something is determined by what someone will give up to aquire it." So, I still think that any art that people are willing to give up money to aquire has value and the creator should be in for (an admittedly tiny) cut. Or they should at least be asked. The instances of it being priced out of the marketplace or refused would be incredibly rare.

And, you know, I think the loss of polite society is a shame. Iput up with a lot of rudeness, but I don't have tolike it. And it may make me even grouchier than I was.

Lessig may be right that we're a less and less free society but the reason for that may not be what you think.

In this debate, for example, no matter what Russell says, the demands for more and more stringent copyright controls are almost exclusively the result of masses of people simply ignoring the old rules. Not saying the old rules needed to be discussed and upgraded, but saying they just don't care about them. As I said, to be surprised that people pushed back is beyond naive.

People want to sell you stuff, they don't really want to limit your access, they want you to buy more and more. And they don't want to spend money on DRMs and other stuff. They just don't want you putting it up in the web and letting anyone who paid the price of admission walk by and take it.

We keep talking about a balance. Completely open public domain isn't a balance.

And that Jefferson argument just doesn't work when applied to artistic work. It's the difference between the "utterabce of the idea," and stringing a thousand ideas together in a specific order.

Russell McOrmond said...

I've learned over the years not to ask people if they think copyright should be perpetual. Once someone says yes, based on a believe that any human creativity has ever existed that doesn't build on the past, then it is hard for me to take any other aspect of the conversation seriously.

"And that Jefferson argument just doesn't work when applied to artistic work."

That is exactly the context he was using it in 1813, and we'll obviously have to agree to disagree that it doesn't apply to artistic works (Not only literary works which was the focus of the day, but also visual art).

At the time he spoke it there really wasn't much of the functional or memory-enhancement form of copyrightable works that exists today, so he was clearly not talking about them -- although in these cases the old fiction-book-style copyright being applied to them is even worse.


Ironically, in his day it was the Europeans that were being draconian with their copyright and the US as a young country was looking more towards future creativity than backwards into the past. Funny how a few hundred years some things change, and some things stay the same.

We still have some people looking backwards to protecting the interests of past creators, and others looking forward to focusing on the interests of new creators.

I wonder if I'll ever be old enough to be more focused on the past than the future in my thinking about human creativity.

John McFetridge said...

(I wrote a great response and Blogger ate it)

Oh well. If we're lucky, we all get old, Russell :)

I thnk there's a clear distinction here. We're only talking about a piece of work when it becomes a piece of commerce.

I think as long as someone wants to spend money specifically on a work I created, I could get a tiny, tiny cut. After all, it's a specific purchase of a specific work, it's not random ideas.

If my work inspires someone else to write another book or a play or to take some photos, that's fine, that becomes theirs. I was certainly inspired by an infinite amount of things.

Now, I know I cloud things a little by saying that paying for the internet connection makes it a commercial transaction, but I feel if they want that specific work and they can't pay for the connection, they'll still have to pay for the work somewhere else.

This only becomes an issue because money changes hands. It is the purchaser's intent to buy a specific work. The question is how the purchaser's money should then be divided up.

It would be a sad day if it was all thrown in a pool and the only artist the world knew was "Anonymous."

(really, this was much better the first time. I was inspired. Damned Blogger ;)

Russell McOrmond said...

"We're only talking about a piece of work when it becomes a piece of commerce.

I think as long as someone wants to spend money specifically on a work I created, I could get a tiny, tiny cut."

Most of the recent changes to Copyright have been to regulate non-commercial activities, so what you propose is quite radical.

I also wonder how you propose to handle royalty-free business methods? Saying that you should "get a cut" has been translated by many business model intermediaries (Collective societies and their supporters like JohnD) to mean compulsory royalty payments.

A requirement to pay royalty payments on me is identical to a refusal to license, given I don't charge royalty payments for any of my work and thus can't pay any royalty payments for any of the inputs.

This isn't uniquely a software issue -- there are royalty-free business models that cross all forms of human creativity.

If this new exclusive right you propose (Lets not call it copyright as this has a different meaning) only charged flow-through royalties on royalty-bearing derivative works, and mandated a registration system so we all knew who was receiving these royalties (hopefully creators and not old-economy intermediaries), then we could have an interesting conversation about how long this very different non-Copyright regime could last.

Unfortunately the suggestion that ISPs and device manufacturers should be paying royalties for copyright holder based on the claim that the "only" use for these technologies is the delivery of royalty-bearing content closes the possibility of reasonable debate on this proposal.

Russell McOrmond said...

"It would be a sad day if it was all thrown in a pool and the only artist the world knew was "Anonymous.""

The moral right of attribution, and other aspects of Copyright (Moral right of integrity, material rights) are entirely different.

If someone put a proposal to make attribution perpetual while at the same time reducing and clarifying the term of integrity/material rights (fixed terms, registration, etc), I would support it.

But it is entirely unreasonable to demand attribution at the same time as demanding that there be "no formalities" to create tools to allow us reasonably determine who to attribute.

The way books work of having the author clearly listed in the front of the book is the exception to the general case for copyrightable works.

For the vast majority of current works under copyright, which come under "functional" or "memory extensions", determining who to attribute is nearly impossible.

John McFetridge said...

I keep wanting to stop, but you make some very good points.

Too many things are bundled together that don't fit together, you're right.

Plenty of people want to have royalty-free business models and that's fine.

Some people don't, and that should be fine, too.

It is tricky, how the payment would work, but it is possible. I will keep coming back to the fact that as long as there is a desire from consumers to purchase the product, making a workable marketplace is possible.

Rightly or wrongly, though, I don't think we can rely on an honour system - I think there's been enough evidence in the world - with lots of products and services - that this doesn't work.

Russell McOrmond said...

"I don't think we can rely on an honour system"

I realize there is a lot of anger and fear in this debate, but we have to ask ourselves why it is that we can have self-serve checkout at the grocery store, but not an honour system for Copyright.

Contrary to your claim that people will just access entertainment in whatever format it is offered, entertainment is an entirely optional "bonus" of society, while food is mandatory. If an honour system were to fail, it should be in basic necessities not bonuses.

By the way, you simply don't know how many people are choosing to "opt out". If you look at the statistical methods used by the entertainment and software manufacturing industries, they do not adequately differentiate between infringement and "opting out". I'm not suggesting that all their alleged infringement is actually "opt out", but a good percentage is (IE: the estimated error in their calculation of Open Source software usage is about 3/4 of the so-called "software piracy")


I think that as you think about it it will come down to a problem of ill-will between some copyright holders and some users of copyright works. The ill-will is not with "all" of either category, but a sufficient number of people in each to increase emotions to a boiling point where only the ill-will is growing, not respect.

JohnD is right that this issue is basically about respect. Unfortunately where I believe that respect needs to be a two-way street, JohnD often suggests it should be unilateral.


My main point in this debate is to try to remind people that it is not possible to have a viable technological solution to a social problem. When problems and solutions come from entirely different areas of science, then the collateral damage and unintended consequences will guarantee that the solution will fail. In the case of the NII policy, I believe that the "cure" is far worse than the "disease", but it isn't possible to convince an emotional person wanting "something to be done" that the currently proposed "something" isn't helpful.


If we ever get past our current emotional blockage and attempt to move forward with trying to find social solutions to social problems, we will then have a much better chance at success.

michel said...

"I realize there is a lot of anger and fear in this debate, but we have to ask ourselves why it is that we can have self-serve checkout at the grocery store, but not an honour system for Copyright."

Surveillance. Self-serve check-out is not based on the honour system. It's based on surveillance. Try it.

Sir said...

I'm late to the party on this post but...
"The market is encouraging the voluntary removal of unnecessary locks, then what difference does it make if we have a law protecting necessary locks?"

Though law you are adding more value to "unnecessary locks" then they were worth before hand. That value could cause the market to go the other direction adding more unnecessary locks.

John said...

Never too late, Sir. We could use a bit of genuine speculation and respectful comment here.

It could indeed go the way you describe it.

My guess is it won't. Despite the panic, we do still, and will continue to, live in a mostly well-regulated market economy. Content locks appear to be well out of favour. If the market steeled itself against truly intrusive or invasive device locks, they wouldn't last a season.

I think what is missing from the other side on this -- and by that I mean the loud, proud, not entirely forthright leaders of the C-61 protest -- is some assurance that when the corps drop their device locks, everyone will voluntarily respect the good faith investment they've put into this clearly valuable intellectual property. Did I say assurance? I should have said some simple recognition that such a scenario is even at issue.

What we have now is a stand off where one side is saying "you need to drop your weapons so we can take all your stuff and ultimately destroy you."

Not so enticing. And really, really unrealistic.

Russell McOrmond said...

"What we have now is a stand off where one side is saying "you need to drop your weapons so we can take all your stuff and ultimately destroy you.""

Not really -- what we have now is people who understand the nature of the 'weapons' at hand trying to warn you that you have aimed your own weapon at your own head, and that we are all going to die from the blast you will be firing off.

Then again, you will reject my analogy because you have already rejected my scientific evaluation of the technology in question.

There is no indication that there is a movement away from third-party locks. The recording industry is reducing their usage of the locks in their battles against the anti-competative effects of these locks from Apple, but that is really an insignificant impact. More locked hardware (where the owner doesn't control the keys) is shipped every year, and all indications from the hardware vendors is that this will continue to increase.

Notice that we are talking about locked cell phones with C-61, but not with C-60. C-60 used the WIPO treaty language of tieing anti-circumvention to infringement, and thus had nowhere near the harmful "unintended" consequences as C-61.

And no, there can't be acknowledgement about the potential that people will abuse technology to infringe copyright as that is an issue entirely separate from the abuses of technical measures which are incapable of reducing copyright infringement. There is that science problem again...

I wish I could assure you that people would stop infringing copyright, but you have more control over that than I do. I can pledge that if someone infringes my copyright that I will leverage copyright and existing community legal support to appropriately sue them if they don't comply -- you have said already that you would not.

Infringer said...

I would really like one person on the pro-C61 side to explain why these locks should be protected in copyright law at all?

If the corporations really want these locks then what is stopping them from getting the legal protection they seek through contract law and rental agreements instead?

It wouldn't be without precedent. For example this is exactly what GM did to stop people from messing with their their first experimental electric vehicles. ( google GM EV1 )

I know what my answer is, but I'd really like to know what the sincere pro-C61 reasoning is.

Dare I ask? John, do you have an intelligent rational for this without being a smart ass?

Sir said...

"corps drop their device locks, everyone will voluntarily respect the good faith investment they've put into this clearly valuable intellectual property."

I am not asking for corporations to drop device locks, I am asking for governments not to specifically protect them with large statutory fines towards individual private citizens when circumventing them. That is all.

I am all for strong copyright law but when digital locks are in their own special high statutory damage area in the bill it becomes confused.

Example under bill C-61: I download 30 avi movies off the internet onto my computer. 500$ statutory damages total.

I convert one DVD I bought into a avi file using a program designed for that reason. 20,000$ Statutory damages per DVD I convert.

Why is that fair for artists and consumers?

Easier yet, why does that make sense at all?

Russell McOrmond said...

I try yet again to ask for relationship clarity on the content/device locks in:

Copyright: locks, levies or lawsuits? Part1: locks

I would take Infringer's question and ask what is wrong with the well known set of legal relationships we already have such as "ownership" and "rental" that we have to create yet another relationship without any prior legal or other history?


Sir said: "I am not asking for corporations to drop device locks, I am asking for governments not to specifically protect them with large statutory fines towards individual private citizens when circumventing them."

My perspective is different. I believe that it should only be the owner of something that should be able to apply a lock to something, or authorize a lock to be applied to something. I would not only not legally protect unauthorized third-party locks, but I would outlaw them.

This to me is simply common sense. The problem is that too many people don't understand the science behind these locks, so aren't adequately asking the question of who owns the various things that are being locked.

Content cannot "make decisions" on its own -- a paperback book cannot read itself out loud, and information doesn't become "magic" when you digitally encode it.

Once we get past this problem and have people understand the difference between science and science fiction, I suspect many of the more silly aspects of the "debate" will go away.

John said...

Sir,

In fact, I think you and I are a lot closer on this topic than we might appear. I am also not quite clear on the stat damage implications and whether or not they would work as designed, or even should. And as I indicated earlier and elsewhere, I think the whole issue of digital locks on content and devices needs to be looked at more closely during the debate and amendment period for this piece of legislation.

What's interesting to me right now is that both examples you used to discuss stat damages involved clear and everyday infringement of copyright, but that has somehow become a side point in a discussion about copyright law.

There are many smart people currently in the KillBillC61 camp who could do very helpful work on this bill to turn it into something that highlights and promotes the current very real problems both creators and large corporations are dealing with in protecting their copyright, while dialing back any potential heavy handedness leading to user abuse.

Instead, we all just seem to accept copyright has no chance of being respected (we differ on why that is -- some like to rationalize bad behaviour because it seems to be the only behaviour they can muster). There's a divide and conquer strategy going on over at KBC61, where some counsel greater individual creator enforcement through lawsuits, while others in the same camp wait for that to happen so they can publicly scold us for doing so.

To me the great shame in all of this is not the bill, its contents, discussions of locks or lawsuits or any of that. To me the great shame is the monumentally simplistic, childish, nakedly political and opportunistic protest that has become KillBillC61, the Facebook group, and the neverending and entirely unwelcome talking point comments from soap-box pretenders to Michael Geist's throne.

The stink of hypocrisy is almost too rank to stand right now. And let me stress, Sir, I don't mean from you or your comments. Based on what you've written here, I hope you show up for committee hearings in the fall and say your piece.

Russell McOrmond said...

JohnD,

Any time a group is seen to be a big tent, you find that people don't agree in that tent. I am involved in this debate not because I think Copyright should be thrown away, but that taking away our right to make our own technology choices (what tech to buy, what software to run, etc) is simply a wrong way to try to protect Copyright.

Do you fully agree with everything that Chris writes on the Creators' Copyright Coalition homepage? I find his views to be as extreme as those you wish to declare as "opponents" or "anti-Copyright".

Anyone that doesn't agree with a very narrow idea of what Copyright is or should be seems to be declared anti-Copyright. This is simply a joke considering Chris, the most prominent representative of CCC, is an advocate of collective licenseing for everything, which is effectively a wiping out the 'permission' requirement for copyright that enables the full spectrum of methods of production, distribution and funding.

Or how about yourself -- Copyright is a set of activities which require permission from the copyright holder, and if you do these things without permission the copyright holder has the right to sue. Declaring that you don't want to sue anyone for infringing your rights is declaring that you don't consider Copyright to have any value. That is about as anti-Copyright a position as I can think of.


If the two of us were to create a table of orgs and people we consider pro-Copyright and anti-Copyright I suspect our lists would be extremely different. We would both put the abolitionists into the anti-copyright side, but otherwise...

John said...

Russell,

I know you have a lot on your plate, so you may not have noticed, but Chris and I have disagreed quite publicly just recently. I'll leave it to you to look that up because in the end Chris and I are really a lot closer in philosophy, I suspect, than are you and I right now. Though, seriously, I still honour the bond we forged over lunch.

As to litigation, c'mon, I run a creator association that has morally and financially supported a copyright lawsuit all the way to the Supreme Court (and in my mind, we won, except where we lost). I'm fine with suing. I just know that it is not always the smartest way to assert ones rights, and I am (somewhat desperately) trying to find other (better) ways - ways that involve mutual understanding and respect. Not to mention adult behaviours.

You've challenged me to defend my bond with Chris -- and I do defend it. Chris is a brilliant writer and a brilliant mind who disagrees profoundly with you. He and I have our own disagreements, but I know where his heart is, and I respect that, as I do the positioning of your heart.

Tell me, how do you continue to feel comfortable with that ridiculous comic book advertised on your blog?

By the way, and speaking of permissions (as you were) I think everyone would appreciate your views on the iCopyright model.

Russell McOrmond said...

I mention Chris as he is the primary voice you see on the CCC website. If we created our tables, I would be putting Chris in the anti-Copyright list, and Michael Geist in the pro-Copyright list. This is largely because we (you and I it seems) have a different take on what Copyright is.

I defend and promote the comic because I agree with the message. I don't see it as anti-American at all, but opposed to specific policies that came out of the US Clinton/Gore government that has continued to be followed through by the Bush government. It is a policy direction that the vast majority of US citizens that understand the issue disagree with as well. Having a comic that provides a fully referenced history of the bogus process in Canada is extremely valuable, and the format is both informative and entertaining.

Sorry you looked at the cover and decided to dismiss one of the best educational tools that has been created for the Canadian part of the debate. I remain very proud to be added in as a relatively Jr. member of such an amazing group of fellow protectors of critical human rights.



By iCopyright do you mean the Access Copyright one-stop-shopping service?

If so, all I can do is support in principle, but the devil is always in the details -- which I can't see online.

Is this collective licensing for individual works which an author has added to the repertoire to be licensed for specific uses?

If so, then I support it as strongly as I support the Creative Commons movement. This would essentially be a royalty-bearing version of the royalty-free Creative Commons, where the creator can easily tag "This use is free, this use is royalty, and I reserve other uses for individual contracts".

Win, Win, Win....

If available to all citizens to use, the benefits to the audience would be as great. This would effectively provide me the "Buy me now" button for that repertoire that I am always looking for!


But I can't tell from what I see online what AC's iCopyright is, so don't know if it is what I would hope it to be or something entirely different.