Part 3: Electronic Frontier Foundation as amicus curiae. Argument by Julie A. Ahrens, Associate Director, Fair Use Project, Center for Internet and Society at Stanford Law School. http://www.youtube.com/watch?v=-lqHuukDW-c
Part 4: Joel Tenenbaum as defendant-appellee. Argument by Jason S. Harrow, Student, Harvard Law School, and Charles R. Nesson, Weld Professor of Law, Harvard Law School. http://www.youtube.com/watch?v=VWy3Wj6XbDk
The Consumer?s Dilemma license is a way of reversing that equation and, in the most minor ways, requiring an explicit engagement with it. Among the surreal aspects, that simple choice can subject you to crushing civil and criminal penalties, but you can rest easy knowing that only very rare, arbitrary examples will be made (and none in our case) [emphasis added].
In other words, SSRC has no intention of suing anyone over this -- they say so themselves. Indeed, the entire report is over on Scribd, posted by a user named "urprobablyapirate". Wink wink. Nudge nudge.
SSRC is just having fun with the copyright maximalists, but they are doing so in order to make a point:
Our license has a theatrical side, to be sure, but it also stays true to the experiences documented in the report. Those experiences?the personal choices and the market and price structure that informs them?are the report?s primary subject.
As I noted last Friday over on Legally Sociable, HarperCollins' move is utterly ridiculous. One of the major advantages of e-books is that they don't wear out. Whatever happened to products that become "new and improved" with innovation rather than "same because crippled"?
Oh, that's right -- copyrights create a legal monopoly that allow for monopolistic behavior of the sort we regularly see from utility companies and the DMV. Now I remember.
Even so, HarperCollins' move here seems incredibly short-sighted. They may well be killing off a lucrative new market (e-books for libraries) before it has a chance to develop fully. After all, most people still don't have e-book readers and find it inconvenient to read books from a computer screen. As for libraries,
further license restrictions seem to come at a particularly bad time, given strained budgets nationwide. It may also disproportionately affect libraries that set shorter loan periods for ebook circulation.
Between the growing number of contemporary authors who distribute their books with a Creative Commons license and the growing repository of easily accessible public domain works in electronic text ("book") and spoken ("audiobook") form, there may be a great swath of written culture from the 20th century that becomes effectively inaccessible.
?I don?t know if I would call it a threat, but I do believe it hurts sales,? said Ed Matthew, a senior promotion manager at G. Schirmer in New York. ?It is that profit that helps us to continue to bring out more composers? work.?
As I noted yesterday over on my blog Legally Sociable, this makes no sense. It is the profit from selling/renting sheet music composed by long-dead composers like Beethoven at above-market prices that allows the G. Schirmer company "to bring out more composers? work"? Insofar as this even makes sense, they can only mean one of two things:
1. Traditional music publishers can only continue to publish public domain scores if they can continue to sell it at monopoly prices (e.g., $30-50 for "[a] set of parts for a mainstream string quartet", according to the NYTimes article).
2. Traditional music publishers can only afford to take a bath on contemporary composers if it can subsidize them with profits from public domain scores of dead composers.
Analysis: Whatever this is, it's not a business argument. There are plenty of reasons to support new composers (and musicians generally) that have nothing to do with business, of course. One may think that the arts are intrinsically valuable, or may want to give back/pay it forward, or may simply want the prestige of having one's name connected rising talent as a "patron". All fair enough. But there's no business reason for a traditional music publisher to subsidize new talent with monopoly money. Why should it do that? It would make much more money if it simply sold the old public domain stuff and told new composers to take a hike. (Unless, of course, it does make money off the new composers....)
Just because a music publisher may have used some of its profits to support the arts doesn't mean that they should be able to assert legal rights they don't have to public domain musical scores just because the Internet is threatening their traditional business model. The arts can be supported much more directly and efficiently. There's no need to expand copyright law to allow a revenue stream to continue flowing into the publisher's pockets that a trickle may eventually find its way into the tip jar of the up-and-coming composer.
As I discuss over on my blog Legally Sociable, Google isn't limiting its strategy to filing amicus briefs and hoping for the best. The search giant has also recently taken proactive steps to reduce its liability, including turning off autocomplete results for torrent-related searches. I guess this is what the Intellectual Property Enforcement Coordinator (IPEC) meant by "dialogue", as detailed in her recent report:
the IPEC has facilitated and encouraged dialogue among the different private sector Internet intermediaries that contribute to the dynamic nature and functioning of the Internet, including payment processors, search engines and domain name registrars and registries. These entities are uniquely positioned to enhance efforts of rightholders and law enforcement to combat infringing activity and help reduce the distribution of infringing content in a manner consistent with our commitment to the principles of fair process, freedom of expression and other important public policy concerns. We believe that most companies share the view that providing services to infringing sites is inconsistent with good corporate business practice and we are beginning to see several companies take the lead in pursuing voluntary cooperative action.
I'm not sure how "voluntary" this really is -- or whether "fair process" and "freedom of expression" accurately describes a "dialogue" written under a Damoclesian sword of statutory copyright damages and domain name seizures. But I will agree that ruinous lawsuits and seizures are "inconsistent with good corporate business practice".
Mike, thanks for linking to this. As I comment over on my blog Legally Sociable (http://legallysociable.com/2011/02/18/dressing-up-a-terrible-idea/), I think one of the more pernicious effects of the expansion of intellectual property legal entitlements is that people now think they should be paid any time someone else makes money.
This is the problem of unsolicited benefits. If I buy a house and put a beautiful garden in the front yard, I may well raise the property values of every house on my street. Does the law allow me to collect any money from my neighbors? No.
If I squeegee your windshield without being asked to while you are stuck in traffic, can I demand that you pay me? No.
To be sure, Mardis Gras provides real benefits to lots of people, and Mr. Miller?s costume no doubt contributes to that general benefit. As a general rule, however, the law doesn?t reward people just because they provide other people with benefits. Why? It?s generally unfair to foist such a responsibility on others (that?s why ?squeegee men? are considered such a public nuisance.) Moreover, it?s way too costly for courts to figure out who should pay who in what amounts after the fact. Far better to let people strike their own bargains ? to pay for communal landscaping through a homeowner?s association or to take their cars to a car wash.
Techdirt has not posted any stories submitted by sagescape.
Audio now on YouTube, with helpful annotations
I took the liberty of posting the audio in easier-to-digest YouTube format, complete with annotations so that you can tell who is speaking when.
Licensing theater
Mike, I think you missed SSRC's point on the licensing. As I write over on Legally Sociable, this is "licensing theater".
If you doubt this read the SSRC's own characterization of the license:
In other words, SSRC has no intention of suing anyone over this -- they say so themselves. Indeed, the entire report is over on Scribd, posted by a user named "urprobablyapirate". Wink wink. Nudge nudge.
SSRC is just having fun with the copyright maximalists, but they are doing so in order to make a point:
More monopolistic behavior
As I noted last Friday over on Legally Sociable, HarperCollins' move is utterly ridiculous. One of the major advantages of e-books is that they don't wear out. Whatever happened to products that become "new and improved" with innovation rather than "same because crippled"? Oh, that's right -- copyrights create a legal monopoly that allow for monopolistic behavior of the sort we regularly see from utility companies and the DMV. Now I remember. Even so, HarperCollins' move here seems incredibly short-sighted. They may well be killing off a lucrative new market (e-books for libraries) before it has a chance to develop fully. After all, most people still don't have e-book readers and find it inconvenient to read books from a computer screen. As for libraries,
Between the growing number of contemporary authors who distribute their books with a Creative Commons license and the growing repository of easily accessible public domain works in electronic text ("book") and spoken ("audiobook") form, there may be a great swath of written culture from the 20th century that becomes effectively inaccessible.Copyright as charity
As I noted yesterday over on my blog Legally Sociable, this makes no sense. It is the profit from selling/renting sheet music composed by long-dead composers like Beethoven at above-market prices that allows the G. Schirmer company "to bring out more composers? work"? Insofar as this even makes sense, they can only mean one of two things:
1. Traditional music publishers can only continue to publish public domain scores if they can continue to sell it at monopoly prices (e.g., $30-50 for "[a] set of parts for a mainstream string quartet", according to the NYTimes article).
Analysis: Good riddance. IMSLP will publish it for free. Deadweight loss triange: gone.
2. Traditional music publishers can only afford to take a bath on contemporary composers if it can subsidize them with profits from public domain scores of dead composers.
Analysis: Whatever this is, it's not a business argument. There are plenty of reasons to support new composers (and musicians generally) that have nothing to do with business, of course. One may think that the arts are intrinsically valuable, or may want to give back/pay it forward, or may simply want the prestige of having one's name connected rising talent as a "patron". All fair enough. But there's no business reason for a traditional music publisher to subsidize new talent with monopoly money. Why should it do that? It would make much more money if it simply sold the old public domain stuff and told new composers to take a hike. (Unless, of course, it does make money off the new composers....)
Just because a music publisher may have used some of its profits to support the arts doesn't mean that they should be able to assert legal rights they don't have to public domain musical scores just because the Internet is threatening their traditional business model. The arts can be supported much more directly and efficiently. There's no need to expand copyright law to allow a revenue stream to continue flowing into the publisher's pockets that a trickle may eventually find its way into the tip jar of the up-and-coming composer.
"Dialogue"
As I discuss over on my blog Legally Sociable, Google isn't limiting its strategy to filing amicus briefs and hoping for the best. The search giant has also recently taken proactive steps to reduce its liability, including turning off autocomplete results for torrent-related searches. I guess this is what the Intellectual Property Enforcement Coordinator (IPEC) meant by "dialogue", as detailed in her recent report:
I'm not sure how "voluntary" this really is -- or whether "fair process" and "freedom of expression" accurately describes a "dialogue" written under a Damoclesian sword of statutory copyright damages and domain name seizures. But I will agree that ruinous lawsuits and seizures are "inconsistent with good corporate business practice".Dressing up a terrible idea
Mike, thanks for linking to this. As I comment over on my blog Legally Sociable (http://legallysociable.com/2011/02/18/dressing-up-a-terrible-idea/), I think one of the more pernicious effects of the expansion of intellectual property legal entitlements is that people now think they should be paid any time someone else makes money. This is the problem of unsolicited benefits. If I buy a house and put a beautiful garden in the front yard, I may well raise the property values of every house on my street. Does the law allow me to collect any money from my neighbors? No. If I squeegee your windshield without being asked to while you are stuck in traffic, can I demand that you pay me? No. To be sure, Mardis Gras provides real benefits to lots of people, and Mr. Miller?s costume no doubt contributes to that general benefit. As a general rule, however, the law doesn?t reward people just because they provide other people with benefits. Why? It?s generally unfair to foist such a responsibility on others (that?s why ?squeegee men? are considered such a public nuisance.) Moreover, it?s way too costly for courts to figure out who should pay who in what amounts after the fact. Far better to let people strike their own bargains ? to pay for communal landscaping through a homeowner?s association or to take their cars to a car wash.