Lessig Asks WIPO To Overhaul Copyright; Not Designed For When Every Use Is A Copy

from the rethinking-copyright dept

It’s become pretty clear that most country governments (with very few exceptions) are not interested in looking to fix the problems of copyright, often because of regulatory capture by those who benefit from stronger copyright. So is there anyone who can actually push back? Well, Larry Lessig is hoping that WIPO will step in and lead the way towards fixing copyright, suggesting that the alternative is that it’s going to be, say, the folks at The Pirate Bay who will lead the way on where copyright is headed (i.e., nowhere). His argument is that copyright is so fundamentally broken, that many younger people today simply assume that dumping it altogether is better than reform.

He does make a key point about where the problem comes from. It’s that, in the past, your everyday citizen almost never came up against copyright. But what’s changed when things go digital is the fact that every use involves copying. That wasn’t true in the past. And copyright has never been designed to handle a situation where every use is a copy. The copyright holders quickly recognized that when every use is a copy, this is actually an opportunity for them to extract additional rents through copyright law, rather than through traditional transactional business models. It’s a good point, worth thinking about in understanding why there’s so much disrespect for copyright law today.

I doubt that WIPO will really step up here, even if it’s actually been a bit more reasonable lately. Of course, this also explains why ACTA was set up outside of WIPO. Those who benefit the most from abusing copyright law for excess monopoly rents are already preparing for what would happen if WIPO actually looked at whether or not copyright really makes sense in a digital era.

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Comments on “Lessig Asks WIPO To Overhaul Copyright; Not Designed For When Every Use Is A Copy”

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39 Comments

Re: Re: Re-arranging deck chairs

One reasonable compromise is to return the law to its industrial roots. You’d do that by making it applicable only to corporate entities, and spare individuals entirely.

From the perspective of creative individuals or small teams (e.g. a band), the law would continue to protect their work from being appropriated by incorporated publishers and distributors (i.e. virtually all of them).

From the perspective of incorporated publishers (e.g. Warner Bros. Studios), the law would prevent their peers from freely redistributing their $250k investments (i.e. theaters, streaming providers, and retail outlets, would still have to deal directly with the studio, or not at all).

From the perspective of the audience, it’s do whatever you want. Seriously, whatever you want. Hang a sheet in the backyard and charge admission to your boozy bootleg movie nights, if you like. Just know that if your operation gets big enough to justify the liability protection of a corporate shell, then you’ll be expected to play by professional rules.

In reality, this imposes a pretty serious limit on the sphere of unregulated media, meaning there’s still a big business for publishers (in the broadest sense) to make money (a) through enhanced experiences that small groups of individuals could never feasibly provide and (b) through licensing deals and cross promotion with other incorporated entities.

It also side-steps many of the growing First Amendment challenges to copyright restrictions by only regulating the speech of entities that own their existence to the state. Separately, fears about ‘corporate persons’ becoming equal citizens are overblown – there are all sorts of rules, like truth in advertising laws, that effectively and legally limit their speech. In other words, it’s possible for a First Amendment ruling to distinguish between individual and corporate speech, and to only restrict the latter.

Obviously, this still involves a big hit for existing publishers. Initially they will lose a lot (even more than they have to date). The few strong enough to survive will have to work very hard to find new points of equilibrium. These are likely to represent smaller slices of a bigger pie. Even if these slices are ultimately more lucrative, they still won’t supply the absolute cultural dominance that media conglomerates once enjoyed.

However, the system is likely to enjoy widespread public support, meaning these firms become good guys again (cultural pinnacles, in fact), and can rest assured knowing that the limited protection they still enjoy is – once again – sacrosanct.

Given the alternative (entrenched violent abolition), this starts to look like a win for them as well.

Josh in CharlotteNCsays:

Re: Re: Re: Re: Re-arranging deck chairs

“One reasonable compromise is to return the law to its industrial roots. You’d do that by making it applicable only to corporate entities, and spare individuals entirely. “

Gonna have to disagree. That just makes the law murkier. See all the issues that Creative Commons is having with the non-commercial license – that’s what you’re proposing to be mandated by law.

Just for example, say I’m just one guy, and I do video and photography for weddings. For various tax and liability reasons, my business is incorporated, even though its only me. So the question, under your law, can I record the happy couple dancing at their reception since there will be music in the background?

Re: Re: Re: Re: Re: Re: Re-arranging deck chairs

Of course you can record them – assuming you have procured the necessary clearance/licenses to enable you to do so.

Exempting individuals from copyright infringement is completely different to exempting ‘non-commercial use’.

1) It’s easy to tell the difference between a corporation and a human being (except for corrupt judges).

2) Given all cultural activity involves exchange and commerce is exchange, ‘non-commercial exchange’ is a bit of an oxymoron. It would become prohibitively expensive to pay to be audited to assure copyright holders that no money was changing hands as a result of otherwise unauthorised copies or performances of copyright works, e.g. “Our flight and full-board accommodation in the Seychelles is a paid expense of our non-commercial performance of the Disney movie X”.

Paulsays:

Reform could happen

I think that reform could happen, it would just have to be from the ground up and opt in. Make that little copyright icon actually stand for something and limit who can sue over what so that we can have a more stable system.

The current system was built for a pree computer age, Its about time to change it to work in a computer age with more sensible restrictions.

MrWilsonsays:

Re: Re:

The problem with this scenario is that, opposite of the industry’s argument that they can’t compete with free, normal citizens can’t compete with money.

When you have a lobbyist giving you a pre-written bill handed over the table at the restaurant where he took you to lunch, past the drinks he just bought you, while also passing a briefcase of cash under the table, why would you consider a bill from a citizen who isn’t even important enough to get past the first step of contacting you by phone to set up an appointment because your intern already knows you’re not interested in something that would piss off the people with money who got you elected in the first place?

Anonymoussays:

I’m wondering what would congress do if the people handed them legislation they wanted all written ready for voting.

Would they ignore the people and vote against it? or would they approve it?

What we want the law to say?
Would we make people gather at their neighborhoods to vote and send in the results to see what is the approval rate of such attempt?

Adam Bellsays:

Copyright Overhaul

“But what’s changed when things go digital is the fact that every use involves copying. That wasn’t true in the past. And copyright has never been designed to handle a situation where every use is a copy.”

Regulatory capture assures us that the chances of copyright reform are slim to none at all. ACTA will make things worse, of course. The key issue, however, is that when laws become ridiculous they slowly become universally ignored. If a traffic light stays red for five minutes, you go through it presuming it broken. If copyright laws cannot or will not accommodate the digital age, we’ll go around them.

Adam Bellsays:

Re: Re: dumping it altogether is better than reform

That’s precisely what I meant. When a law is ridiculous, it might just as well not exist, for that’s how folks will treat it. If draconian penalties apply to scofflaws, solutions to evade will present themselves. The harm, of course, is that copyright does have legitimate purposes, so those whom it’s designed to protect will lose that protection just as street crossers lose the protection of a broken traffic light that’s ignored.

Re: Re: dumping it altogether is better than reform

dumping it altogether is better than reform. People of all ages are figuring that out.

I don’t think that’s true. Look at the latest uproar about Cook’s Source Magazine, for instance. The fact that the behavior is near-universally reviled is evidence that people still think commercial infringement is wrong.

On the other hand, nearly everyone thinks there’s nothing particularly wrong with non-commercial infringement. And even those that do, think the current solution is worse than the problem.

So, I’m pretty sure the public agrees with reformers like Alex Bowles (and of course myself) rather than abolitionists such as yourself.

I mean, not that I’m complaining either way. If we can’t reform it, we should dump it. Having no laws is better than having our current laws.

Greevarsays:

Re: Re: Re: Re: dumping it altogether is better than reform

Plagiarism is the only thing that should be prohibited in a copyright law if there is any copyright at all. Without the monopoly of copyright, the artists will find more viable ways of making money from their art and an anti-plagiarism law would protect their right to receive due credit for their works adapted or used in the works of others. Money aside, artists do deserve acknowledgment of their work.

out_of_the_bluesays:

A technological fix is available: prevent persistent copies.

I’ll assume that multiple rents for the same “content” doesn’t bother the corporations in their never-ending quest to redistribute wealth from the many poor to the few Rich. So they basically only need to wait on further developments of existing trends: first, that people who regard physical copies as desirable die off; 2nd that devices / software (mainly the already cooperating evil from M$) continue to implement DRM (along with trend of DVDs declining).

The corporations are WINNING, folks, and will far as I can foresee. With draconian measures in place — did I mention this time that also feeds the surveillance state, so it’s win-win for those who are passing the statutes? — and more on the way, it’s only a matter of time until technology and police state entirely control the (mostly sheep) populace.

What’s different of late is the degree of police state monitoring that can be implemented through computers and the growing acceptance of arbitrary police powers. For instance, P2P sharing can be completely detected through simply the amount of traffic flow (from a residential account, while businesses will be required to self-police their own networks); the police will then be notified to kick in your door. Copyright problem solved.

Some just can’t believe the lengths they’ll go to, but it’ll become the norm as time goes on.

Anonymoussays:

Re: Re: A technological fix is available: prevent persistent copies.

For instance, P2P sharing can be completely detected through simply the amount of traffic flow

Yes, of course.

Anyone who observed the traffic flow of my Internet connection would notice a large spike in the last few days, consistent with transferring several gigabytes of data via Bittorrent. They would notice that the spike started the 2nd of this month – which coincidentally is when Fedora 14 was released.

Not all P2P use is a copyright violation.

Anonymoussays:

I repeat:
Their needs to be two (2) copyrights available for each work:
1. Copyright for the original work, issued to the creator of that work. This copyright can never be sold or reassigned to another, except in the Creators will. This copyright is mandatory upon registration and protects the Creator of the work upon it’s creation.
2. Copyright for the commercial interest that licensed the use of the work from number 1. This copyright has legal help laws built into in it to help protect it’s rights for both parties in the future.

Now I am no legal expert but this would protect the author (the government doesn’t) because they never lose their claim on the work. This would protect the commercial licensee as they would have a legally binding contract with the author and the government as to their rights. The only one that would be left out of the loop are the lawyers, gee what a loss. The one copyright system can never work for both parties.

Anonymoussays:

“His argument is that copyright is so fundamentally broken, that many younger people today simply assume that dumping it altogether is better than reform. “

I think the point is that IP laws are so fundamentally broken that their broken nature reveals their true intent, their true intent being to unfairly serve those who benefit from them and not to serve the public interest. If IP laws are intended to serve corporate interests, and not the public interest, why “compromise” on them. Why not simply repeal them since laws are supposed to serve the public interests. We shouldn’t compromise by having bad laws in opposed to having worse laws, bad laws shouldn’t exist.

These laws are allegedly designed to promote the progress, but the absurdity of the laws shows that those who want them are only selfish and so why should we trust them that these laws promote the progress at all?

Anonymoussays:

I think the other side of the equation is that those who benefit most from these laws are likely most responsible for manipulating the legal system into maintaining and expanding them. If anything, those people deserve to be in jail for all the public harm they’ve caused, and they certainly don’t deserve to benefit from IP laws whatsoever. Since our broken justice system will never place the right people (ie: patent trolls) behind bars or at least ban them specifically from benefiting from IP laws, the best thing we can to do to specifically target those who benefit the most from these laws is to repeal the laws altogether. It’s not really a punishment (since we’re not taking away any of their rights, which jail does) but it’s at least the removal of a privilege that they benefit from which is at least better justice than allowing them to continue to benefit from any IP laws whatsoever.

Anonymoussays:

Re: Re:

That is, repealing the laws altogether hurts those who benefit from them the most and since those who benefit from them the most are most likely to be responsible for the absurd nature of these laws they deserve to be hurt the most.

I say we repeal the laws altogether for, say, 20 years to completely dismantle the organizations that completely rely on them, and then, 20 years from now, we may consider the option of reinstituting very limited IP laws.

Gene Cavanaughsays:

Copyright

Define younger. Many of us who don’t fit that definition feel strongly that copyright is so broken we should dump it.

At this time the wealthy almost seem like the new Nazi party, they are so powerful. I believe that eventually, though, the people (and here we should use “young”, since they tend to be the most apathetic) will rise up against this abuse.

RST101says:

Re: Re:

Well done, here’s a lollipop and your bus fare home, don’t talk to anyone offering discounted digital merchandise!

Mike might have kept it to himself because he wanted too, is that not his prerogative? Why don’t you start a blog and lead the righteous way anoncow?

Kill censorship I mean copyright dead, it serves no purpose other than to destroy the little man so the big man gets bigger at little mans expense and as some one has already pointed out this really is nazi Germany with a wig on, they tried a different tack from the gung ho and it worked, now they run their nazi operation from deep within the bowels of the good ol U.S of A.

Sorry for the good citezens of America but the U.S.A needs cutting off from the rest of the world, your government is at the heart of making this whole world a sorry place to live.

dumping it altogether is better than reform

Lawrence Lessig is an unquestionably brilliant man. And a year ago I’d have agreed with everything he had to say here. Today I’m more inclined to agree with Nina Paley.

Because today I’m more of a radical extremist (being Canadian and all, it’s becoming par for the course as we’re currently on the brink of getting stuck with a Canadian DMCA that will makes the original look positively liberal by comparison…)

There’s a lot in Mr. Lessig’s keynote that is in fact brilliant. Like the insanity of criminalizing creators and children. And zooming in on the simple fact that digital = copies.

But Larry lost me when he equated authors and rights holders. If copyright ever had some kind of justification, it would have been in the idea it was a way to compensate the creators in order to promote creation. But in reality, it has never done that well at all. Propping up “the most inefficient property system known to man” isn’t about to change that. Chief beneficiaries of copyright law have always been rights holders who don’t actually create anything.

A disturbing trend these days seems to be the notion that copyright is somehow supposed to guarantee remuneration. Excuse me? There is a huge difference between holding a legal monopoly on creating copies and a guaranteed income for same. Ridiculous. Remuneration issues ought to fall under contract law if anywhere; the modern corporate idea of copyright entitlement is more a case of corporate welfare.

Lessig is right - if you ignore reality

Lessig’s main point, that when “use” becomes a crime so copyright needs to be overhauled, sounds brilliant until you look at the whole law and not just the section of the copyright act that effect sound recordings. Then his argument, like so many of his arguments, falls apart and reveals its bias– music should be free.

The actual law does not confuse thievery with “use.” Making a single copy for personal use is not now nor has it ever been illegal. Like many areas of the law, there are contradictions from one statute to the next that are fleshed out by case law. In this case, while the Copyright Act makes making ANY unauthorized copy a crime (although no none has ever gone to jail or been fined for making a single, personal use “illegal” copy) another area of case law mitigates that factor. It’s called Lux Diminimus, (sp) a fancy way of saying that if the infraction is so trifle then even though technically it’s illegal, the courts are not going to bother.

Such is the situation here. Making personal use copies of music is fine, as long as you paid for a legal copy first, under the law. But allowing many others to circumvent that process is what Lessig wants everyone to forget about. He wants that to be a “use” and that is why his argument is sophistry. He also ignores the fact that in almost 100% of the cases copyright is handled as a Civil matter, not a criminal one, so equating infringement as a “crime” is not really as brilliant a point as it sounds when you filter it through the real life practicality of how infringement is dealt with.

And you all should be pissed at him. He is making a fool put of those who buy into his spiel. Because he knows full well (or, I should say, the lawyers who prep him know full well) that what I just wrote above is the fact, yet he goes public with a fallacious argument aimed at people who are not versed in the law, using a half-backed theory that tugs at your emotions and fears rather than one that address the real issues.

Don’t be Lessig’s fool. The law is fine, it serves the American economy very well. What needs some reform are people’s entitlement issues.

(typed quickly, apologies for any spelling errors.)

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