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Comment: Re:DMCA is unnecessary (Score 1) 205

by lmlloyd (#15145869) Attached to: More Unintended Consequences of the DMCA

Thank you for making an actual argument.

I have several problems with you point of view, which I will detail below, but the crux of it is that I suppose you are right in a very idealistic way, however you could not be more wrong, in my opinion, in a practical sense. As far as I an concerned, copyright is a legal tool used for resolving disputes about the ownership of work. As such, any discussion of copyright existing outside of a dispute, is meaningless. If there is no dispute, then it wouldn't matter if there were a single copyright law on the books or not, because it would never have to go to court. Laws are the way we settle disputes, about how we deal with things when something goes wrong, not about how we deal with things in the best case scenario.

Now on to the specifics.

So, this is where our disagreement (or misunderstanding) comes from. For you, every download -- every copy -- feels like an original. For you, you need every technical measure possible, even the ones that arguably diminish other people's natural rights, to protect that feeling. I assert that it's pretentious to treat each copy as an original. I assert that copies don't need to be limited to only actions that amuse or enrich their creator. If someone uses a copy in a way that does not affect the creator's life, liberty, fortune, state granted expression monopoly, etc. I don't see why it should be regulated. Now on this point, the Constitution and the law agrees with me. That's why copyright doesn't govern use, it governs distribution.

Ok, two things here. First, you seem to be muddying terms here. Original, copy, these are terms that deal with the media, not the art. I am talking about giving a digital performance of a digital piece. To turn around and call the first digital performance the original, and the second digital performance the copy is an odd distinction indeed. I understand why, from a consumer perspective you would see it this way, because you believe that what copyright deals exclusively with, is the distribution of the commercial product of art (that being the copies of the original, as you are defining it). However, that brings me to my second point. You say that copyright doesn't govern use, it governs distribution. Once again, I understand why from the perspective of a consumer you see it this way, however from the point of view of a commercial artist, this is arguable. While copyright may not govern how you the consumer uses a piece (though I think even this point is tenuous) it most definitely governs artistic uses of a piece. I will go into examples below, but suffice to say, one artist cannot include your entire copyrighted work as an integral part of their copyrighted work, without your permission, just because they went and bought a DVD of your work. I think some of this confusion comes from the fact that a lot of copyright owners "let it slide" when the infringing artwork is of a non-commercial nature, thus leaving the impression that fair use might have much more far reaching implications that it legally does.

Ok, so with that said, you can see why I'm against technical means to restrict my freedom (even with copies of other art/artistic products). I guess what it comes down to is (like usual) property rights. If an artistic work is fixed in a tangible medium it is property. Do you disagree? Why don't I have permission from you (and others like you) to exercise my own decisions about my own property?

Ok, once again, we are arguing two different things here. You are making the absolute argument that the media IS the art, and the art IS the media. Now I would first argue that with or without the DMCA, this was not the case. Just try to take a book you bought down to a copyshop, and have them make a photocopy of every page of it if you don't believe me. Well before the DMCA, it was established that you do not have the right to make an unauthorized copy of any media you care to. Now you might well have a problem with this, but it is not a problem that originated, nor was caused by the DMCA. As to the second part, you have my permission to do whatever you want with your property, I just don't maintain that letting you see my work on your computer screen, now makes my work your property. As an example, if I put my work up on a website as a Flash video file, I am letting you view it, while taking reasonable and non-invasive steps to make sure that file never stays on your local harddrive. I find it bizarre to say the least, that you maintain that the fact that I showed it to you, now mean you have the right to go into your cache and try to hack it back together into a contiguous file, or run some other hack to attempt to grab that ephemeral content into a fixed form that you then have control over. Why I might want to control the distribution and viewing of my piece is immaterial, and not as you paint it, simply an issue of monetization of the art. Perhaps I have an insane hatred of all things Apple and want to, as part of my message, specifically exclude Apple products from the distribution. Perhaps I wish to make an artistic statement about the ephemeral nature of digital art. Perhaps, unbeknownst to you, every time you watch the video as it is intended you get a slightly different version, and that is part of the point of the art. It doesn't matter why. If the artist chooses to control the way in which you experience the art, then that is the artists choice.

Now, you say, "an attitude like [mine] will do more to stifle artistic expression than a 100 laws." How? If other artists can fairly use copies of my work in their own -- how on earth can I be stifling artistic expression. You accuse me of using fair use ambiguously. I do no such thing -- making personal copies (an activity I don't recall mentioning in the entirety of our conversation, maybe I have?) is just as fair a use as parody or commentary. Since I take it as a given that nearly all art doesn't spring forth without inspiration, I would go so far as to say that transformative derivatives should also be fair. I can see how this would be abused though, so I can understand and honor why the Copyright Law disallows it.

An attitude like your's stifles artistic expression, because it encourages the monetization of art. Art is an intensely personal thing, and can take a lot out of the artists. Many artists loath the idea of that personal work, then being immediately turned into some commercial product, and thus removed of its context. Once art is turned into a commoditized product, you discourage artists, while simultaneously encouraging what I will call "hacks" who are in it solely for the money. If you continue down this road, eventually the only art you will ever see is completely without social value, and exactly the commodity you started out treating it as. I am not arguing that making a personal copy, or time shifting, or lending out your copy are any less "fair" than a parody, or commentary, simply that they are not the same. Parody, commentary, or even transofrmative works, add to the social understanding of, if nothing else, that piece of art. You making a copy, or lending out a copy, or time shifting a program, adds nothing to society, it just makes your individual life more convenient. Along these same lines, there is a world of difference between the work of one artist inspiring the work of another artist, and some hack building his piece on the work of someone else. It is very hard to quantify (perhaps impossible) but there IS a line you must cross before you are actually creating a piece of art that is inspired by another piece, and not just stealing someone else's work. If imitation in the sincerest form of flattery, then surely taking an exact copy of your work, airbrushing "This Sux" on it in Photoshop, and putting it up on a site for the world to see is the sincerest form of insult.

I don't have to prove the creation date. Maybe you're asking, how do I prove I created a work? Well, I'm not a lawyer, so I don't know that I have the training to do this, but this is what I'd imagine... If I created a film on a computer and I uploaded to a website for people to make copies of, and then someone who made a copy sent another copy to 'YouTube' and I wanted 'YouTube' to take it down because it was mine and I didn't want people to get copies from any where else but one site and they said 'prove it' then I would do this: (and this is what you did before and after the DMCA became law) I would call my lawyer and tell them that someone is infringing on my copyright. My lawyer would take the best master of my work, put it in a box with an application and $30, sent it to the U.S. Copyright Office, and in the same day he would write a letter to 'YouTube' asserting that my copyright was being infringed and that they could C&D or see me in court. Now, at this point, they would either take my and my lawyer's word for it and remove the infringing content or they could continue infringing and meet me in court. If they met me in court, they would have no way to substantiate that the submitter of said movie wasn't me (if they did, I'd get to file another suit) or that the submitter of the film was the creator and consequently the copyright holder and they would lose by the very virtue/problem that you claim the DMCA solves, i.e., they would have no proof of creation either, where as you have an affidavit to that effect and maybe even a shred of evidence like the mere existence of non published precursory materials. A win! (n.b., the DMCA and publication date aren't relevant.)

Here we get to the meat of it. Now see, I really do understand what you're saying here, but it is limited in perspective. You are constantly looking at it from the point of view of the consumer, and as such stating conclusions that have little relevance to the actual sort of copyright claims that occur in the courtroom. You automatically assume in the above example, that the person redistributing the work is just a consumer sending out media, and not someone intent on actually stealing the content for their own personal gain. That is fine in as far as it goes, and you are correct about the remedy in that situation, but that does not even begin to cover the range of possibilities. Yes, if you assume that every case is simple, then you can answer them all with simple answers. However, every case is not simple! Forget this example, and instead let's take this one.

One artists makes a logo, just because he thinks it looks neat, and he puts it up in the gallery on his website. That is all he does with it from that point on, just has it sitting there as a cool little thing he did. Another artists sees the logo, thinks it is cool, grabs it off the site, adds the name of one of his client's to the logo, sells it to the client, who files a copyright, and and trademarks it. Now, some number of years later, the artists who created the original logo becomes aware of the theft of his logo, and is very upset. By your argument, it does not matter if the DMCA exists or not, he had a copyright on that work from the instant he created it. However how, if he did not file a copyright form, and if he has no legally admissible proof of creation date, can he ever hope to enforce that copyright? This distinction between theoretical copyright and legally valid copyright becomes even more important, and difficult, in collaborative environments where multiple people have different perceptions as to what contribution they made to the final work.

My argument is, rather simply, that before the DMCA, there were fewer legal tools that artist could use to enforce his copyright, therefore he realistically did not necessarily hold the copyright to that work just because he created it. The company who registered that work, and could prove publication through legally admissible means, held the copyright to that work. After the DMCA, there were more legally admissible tools available to that artist to attempt to prove his claim of creation. Now, as I have said before, I am well aware that much of this could be argued to be the result of interpretation of the law by judges after the DMCA, and not directly a part of the DMCA. However, from my point of view, it does not matter either way, because the DMCA was the turning point. You can, and probably will, argue that the DMCA was not required for that turning point to occur, but I say that is just conjecture. The fact is that the DMCA was the turning point. I am not saying it couldn't have happened without the DMCA, but it certainly hadn't before the DMCA. The DMCA was what established in the mind of the court, that the Internet was an important and relevant part of IP law, and established in the minds of the court the importance of being mindful of digital content. Before the DMCA, online digital content had a very strange place as a sort of 'second class citizen' under the law, and was not considered in the same light as traditional content by the court. Yes, I realize that all of this *could* have been done without the DMCA, but then you can say that about any law! There is no reason any part of any law couldn't have been a part of some other law. What matters at the end of the day, is what got passed, and how that changed the legal landscape, not academic discussion about how this law would have been different if this judge would have decided the other way on this case.

As I have said, in the most academic sense, you are correct. I overstated my case when I claimed that the DMCA was what gave an artist copyright at the moment of creation. What I should have said was that with the DMCA, the fact that you had a copyright at the moment of creation mattered legally for the first time! Before that, it was a completely academic point, that had absolutely no bearing on the process, because only those with the foresight to register their work, or those with the means to publish their work, could legally enforce any claim to copyright ownership. I suppose I can kind of understand why you think this is such a HUGE difference, but I really don't see it as much of a difference at all. As I said at the beginning of this response, copyright is a legal too. If you technically hold a copyright that can not be in any way enforced, and can be taken away by anyone who makes any kind of effort to challenge your claim, then I think it is beyond splitting hairs to even claim you have the copyright at all.

Anyway, the convenience argument that you use to defend DRM cuts both ways though, i.e., you say that because DRM can be circumvented (through the not-yet-criminalized method of the analog hole) I still have fair use, it's just less convenient. Well without 512 you can still get infringing material taken down, it's just less convenient.

Once again, you simplify things from a consumer point of view. There are many ways to get material for your art besides just "through the not-yet-criminalized method of the analog hole." If you are a student, or work for a major media company, you can get material legally through the media library. You can contact the artists, explain to them what you want to do and ask for the material. In some areas, you can get media from your local library. There are media collections you can buy for educational purposes. There are media collections you can buy directly from studios that come with conditions on how you can use the media, but the most part will allow you to do most things you might want within fair use. The list goes on for quite some time. The fact is that there is plenty of opportunity for artists to get their hands on media. Just because you can't download it off iTunes, and then do whatever you want with it, doesn't mean that song is locked away forever and unattainable to any artist who might want to use it. The DRM argument is a little different, because if it was never my intention to give you a permanent copy that you could play on any computer, then you going in and hacking the file to make it a permanent local file that you can do whatever you want with, goes beyond just an issue of my convenience.

As far as the liability limitations for Internet service providers and hosting companies goes, this really cuts to the core of what I was saying about bloggers. Do you honestly think that ISPs and hosting companies would allow for a second blogs that constantly quote each other, take stories from one another, report on and sometimes even copy parts of traditional media outlets, if they thought for a second they could be sued for infringement? Do you think that bloggers would spend all their time making their pages and filling them with content, if they thought for a second that the ISP or hosting company would end up owning their work? I mean come on! It is one thing to be more focused on the academic interpretation of copyright law than the legal reality of it, but it is another to just completely ignore reality and pretend that a portion of a law specifically designed to allow the free flow of information is somehow just a tool to make things easier for copyright infringement hawks.

"You obviously are confusing art, and your lawnmower!" -- isn't it pretentious to do otherwise? Someone designed that lawnmower...

It might sound pretentious, but then any artist who was worried about never sounding pretentious is probably an accountant or auto mechanic right now. The fact is that your lawnmower is a commercial product. You bought it to do a job, and it will do that job. A lawnmower, however, will never uplift society, or inform the human consciousness about the basic truths of existence. Some piece of art using a lawnmower might, but the lawnmower itself won't. By the same token, yes someone designed the lawnmower, and it might be a beautiful design, and it might even end up in a museum. However, that is the design, not the lawnmower. You can use the lawnmower any way you like, but that doesn't mean the design of the lawnmower is now your property. I don't deny that art is an inherently elitist pursuit. That is why I don't really care if what I say sounds pretentious. The whole concept behind art is that there are some people who have such a different take on the world around them, that just hearing what they have to say uplifts society. If that isn't pretentious, I don't know what is, but it also happens to be true. Any time you start talking about art as a product, or a commodity, it cheapens the true value of art.

But of course this starts skirting MY theoretical, academic, problems with the current state of copyright law. You see, copyright exists because it was decided that there was an overwhelming societal good to giving artists and scholars an incentive to continue uplifting and informing our society. Copyright was not created so that people could make an extra $6 off a printer cartridge. If I were to point to one major problem with copyright law, it would not be a particular law, but rather the application of copyright law to mundane technologies that neither enrich, nor inform society in any way. I am not saying that there should not be any system to protect software or other intellectual property. I am just saying that I think your very question highlights how using the same system to protect art as you use to protect the software protection on a printer cartridge muddies the waters, and cheapens art. Yes, programming take creativity, but then so does doing anything well. Creativity is not the measure of art. I actually think it was pretty clear in the beginning that copyright was not supposed to cover the design of practical things. Unfortunately, as we have moved to an era where the line between a practical thing and an idea are ever more blurry, rather than try to come up with a new system for dealing with it, we have twisted the functioning of our copyright and patent systems to the detriment of both.

Of course it's not (as the title of my reply would indicate). But for the record, I believed you were supporting the WIPO when you were holding up the necessity of Title 1. No big deal. What's still in conflict for me is ... you think the DMCA is good for artists, but why do we need it if you think no-derivatives licensing is good for artists (I'm presuming again from your "pirate it if you don't change it" statement). Licensing was legal before the DMCA. I mean take it further... if licensing isn't "strong enough" (the law isn't strong enough) so we need technical measures (DRM) but DRM isn't strong enough so we need... another law. Where does that end? Physical coercion? Though control? It's like, I want the audience that's lawful (licensing covers them) and I want the audience that licensing doesn't cover (infringers) and I want the audience that will break the DRM (criminals under the DMCA, even if they aren't engaging in infringement and might actually be in the 'lawful' camp). I mean it's been said many times, many ways, that DRM only assumes that we're all guilty and doesn't even solve the problem is purports to (you've said it yourself, I'm merely inconvenienced when it comes to fair use, but that means equally that the bad guys are only inconvenienced when it comes to infringement). So if DRM can't work, why would/should we make laws that say it must work? It's all totally illogical to me.

Ok, I do think it is a practical necessity that we adhere to the terms of the WIPO. That doesn't mean I agree with those terms. I don't think we, as a country, can afford to 'loan wolf' it through the new millennium when it comes to copyright and patents. If we end up in a position where our patents and copyrights are not recognized in any other country, we will be a third-world nation really quickly. However, realizing that, doesn't mean I have to personally agree with what we have to do in order to get our IP recognized the world over. As far as DRM goes, I think that it is both doomed to fail from a technical point of view, and at the same time a necessity. That is not a particularly great view, but none the less the truth. Now I'm sure I don't have to detail the reasons I think it is technically doomed, so I will talk about why I think it is a necessity. You see, for the bulk of human history, art was something that could not be exactly reproduced. Even after the invention of the printing press, it could not be easily reproduced. Before the digital age, any reproduction of art required a large investment of time (relative to the time it took to experience the art to begin with), and usually a fair amount of talent, and almost always was changed from its original form by the character of the person who did the reproduction. As such, most people capable of reproducing art, eventually moved on to making art of their own, and thus the cycle continued. Even in the Xerox and Beta days, those technologies left there mark on the reproduction, and we saw some very interesting new forms of expression rise from those artifacts like the munged-up punk 'zine collage style, and the ever-popular scanline look to things that were supposed to be artificial in movies. As we have moved into the digital age thought, it has become possible for someone with no talent, and no particular special skills, to perfectly reproduce art, exactly as it was originally created with no artifacts, or imprint of the person who made it. There are a number of problems with this, and yes, some are monetary, but the ones that are of greater importance, are the ones that strike to the heart of art itself. You see, if everyone can just pass around perfect copies of the best examples of art, it actually discourages the creation of new artists! How many composers started out conducting or playing someone else's music? How many illustrators started out tracing or reproducing someone picture they liked? how many comedians started out telling their friends some funny joke they heard somewhere else? The answer is almost all of them. However, when you suddenly have the ability to effortlessly get a perfect copy of that work, why go to the trouble of painstakingly reproducing it within the limits of your own talent? When you can just chop up clips of a professionally produced movie into a funny little trailer that makes your point, why hone your own acting, directing, and photographic skills? When you can just link to someone who said something clever, why come up with something clever to say yourself? The problem is that copying is so easy now, that it does not encourage people to develop their own talents. The really sad thing, is this isn't just some harebrained theory, but something that can be quite easily proven. At both the primary and secondary school levels, plagiarism is at an all time high. In the creative arts we have never seen such a glut of derivative and downright stolen work, attendance to just about any kind of performance is low, and getting lower every year, and the number of people coming out of film and art schools doing nothing but aping a popular style is almost an epidemic! I would maintain that in the bigger picture, we need some way for the artist to have tighter control of how his work is viewed, unless we want to go further down the slope of commodity art, until we enter a dark age where there is nothing of value being created, because there is no incentive for an artist to even bother.

"The DMCA is not like the broadcast flag legislation which actually redefines what fair use means, and it is nothing but a cheap trick to try to conflate the two. [...] Keeping you from making your 'backup copy' is in no way going to cause tomorrow's artists to suffer." -- which reads '[preventing fair use] is in no way going to cause artists to suffer". Here it's like you are defending the broadcast flag after you just defended the DMCA by saying "at least it's not the broadcast flag". :-) I mean, c'mon fair use is fair use. Format shifting, time shifting... these are just as legitimate as parody, commentary, research and education. To make a distinction here is the "cheap trick". Of course, DRM can't make the distinction at all, so time-shifting, format-shifting, parody, commentary, research and education are all prevented (or criminalized if you aren't a "competent artist" and just a normal citizen, if you'll recall your words).

I said it before, and I'll say it again, format shifting, time shifting, backup copies, are all every bit as "legitimate" as parody and commentary, but they are a completely different argument. One is about consumer rights, and the other is about artistic expression. There is not going to be some artist 50 years from now who would have made a scathing parody of Britney Spears music, if he just could have figured out how to get around that damned Fairplay DRM! Your desire to put any music you buy on any device you buy is one issue, that has absolutely nothing to do with the ability of an artist to parody or comment on that work. Now there are a lot of people, namely consumers, who are VERY concerned with consumer rights. That is a perfectly legitimate concern. However, don't pull us artists into the fray too saying "see guys, their keeping you from being able to do your thing too" just to try to add a little artsy weight to your "I paid for it, so it's mine" argument.

The broadcast flag legislation is different, because it actually starts limiting the definition of fair use to things that are "traditionally accepted" or some such. I don't remember the exact wording, but it is along those lines. This has artistic import beyond just the consumer rights issues, because that same phrase could be applied to definitions of artistic uses. The part of the DMCA we are talking about is specifically limited to discussing what you can and can't do with the media. There is no way that will effect artistic expression, because it does not deal in any way with the content, just the protection on the media. The broadcast flag instead starts messing with the actual definition of fair use, which effects everything.

It is fine to argue about liberty and the pursuit of happiness and all that. Those are fine things that I value very highly. However in a world where there are video cameras on every corner, the NSA is scooping up all electronic communications, and people are being detained without any legal charges being brought for indefinite periods of time, the DMCA seems an odd place to make a stand against tyranny. None the less, fine, if that is where you want to make your stand, then that is certainly your right. I have never said the DMCA was necessary, I just think it does just as much for the individual artists as it does for the giant megacorp. I understand that you think that there is no reason to justify the government telling you what you can do with your property, but I argue that the whole point of the section of the DMCA that most offends you, is to make it clear that you don't own the content, you own the right to view the content. As such, no one is telling you what you can and can't do with your property, they are merely dictating the terms by which you license the right to view THEIR property. I also don't quite understand your point even from a consumer angle, because if you don't like DRM, don't buy anything with DRM. If enough people do that, then the people making money off of the content will stop using DRM, because they want to sell you something.

"Success covers a multitude of blunders." -- George Bernard Shaw

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