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October 25, 2010

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HuwOS

What's particularly clever is how digital IP rights are touted as being just the same as property while getting all kinds of special treatment that would not normally be associated with property.

Hardly surprising then if some people want such rights to be also applied to real property.

Hard to argue against if they are okay for IP and IP is just the same as property.

But of course they are not okay for IP any more than they are okay for real property, we just need governments to wake up to it.

**********
It was of course to EA's benefit Paul, that they could afford a court case of the type they had to go through to get a judge to find that the claimant had no claim at all.

But smaller companies or individuals may not be able to face down these kind of nonsense claims nor should larger companies have to, not that I shed any tears over them having to but the law should make it more difficult to cause people these kind of difficulties, not easier and placing the burden of proof on those actually doing something while those who have failed to do something or aren't doing anything play the slot machines.

Paul Flynn

Fascinating stories in the links HuwOS Particulay enjoyed the judge's slamming the person who claimed exclusiev rights to word 'Edge.'

Kay Tie

Resale percentages is what the French forced on to the UK for art auctions. And it's what publishers think they are entitled to for second-hand book sales. It's already common here for land sales to include an uplift clause. These all are dirty tricks that undermine private property itself.

HuwOS

Try "taco tuesday" for some fun.
http://www.techdirt.com/blog.php?tag=taco+tuesday&edition=techdirt

Or perhaps attempting to keep the word Edge to yourself.
http://www.techdirt.com/articles/20101005/12252211299/court-denies-injunction-against-ea-over-tim-langdell-s-edge-trademark-slams-langdell.shtml

Unfortunately for Mr Langdell, and thankfully for everyone else, EA definitely had the pockets to deal with this particular effort.

DG

I'm also appalled at the trademarking of commonly used phrases like "take care" and "every little helps." It seems corporations are all for free markets, but not for freedom per se.

HuwOS

Definitely, there is a strong connection between trademark, copyright and patents.
In terms of abuse and misuse and being as they all are, government granted monopolies.

Government needs to get its collective mind around the concept that they create the situation and do some analysis to see if the relevant legislation actually meets the needs of society or whether they are actually working against their own aims.

Is nothing ever again to enter into the public domain?

Most books published either make money or don't make money for their authors in the first few years.
Only the most successful have a back catalogue that brings in a living wage never mind the very few with such demand that they provide them with great wealth over many years, yet the copyright system is being tweaked more and more for these startlingly few people on the pretence that it is for the benefit of the vast majority.

The same is of course true of the all creative works, whether films, performances and software whether business or gaming.
Other creative works, like painting or fashion design are do once, hopefully make money and then move onto the next job and yet people paint and the fashion industry seems to manage somehow without copyright (although the fashion industry are pushing for copyright and artists are looking to be allowed to collect money from resale of their works)
Nobody likes to turn down free money after all.

Everyone wants to get in on the act if they can, not always successfully, anyone really think that house builders should be collecting a percentage of any resale value?

http://www.techdirt.com/articles/20101001/00371611246/bill-introduced-to-ban-home-resale-fees.shtml

I also wonder if Paul can guess whether for example a hairdresser who has a radio playing in their place of business has to pay license fees to anyone?
What do you think Paul?
Would that person have to pay for no licence, 1 licence or 2 licences to have their radio playing where others can hear it?

Of course labels have a pretty cushy deal when it comes to radio, they get paid by the radio stations to allow the radio station to promote their products, which has a positive effect on sales.
A fact obviously recognised by the labels when they "illegally" choose to pay the radio stations to play something they wish to promote, who knew payola would be anything more than historic interest in the 21st century?
http://www.techdirt.com/articles/20100804/01555210488.shtml

I've put "illegally" in quotes simply because I am not sure its worth having a law against record labels paying for their products to be advertised, many people might think, that was reasonable.
Personally I don't care all that much about that part of it.
But if for example airtime boosts sales, as the music industry obviously believes, it can only do so if there are listeners and presumably the more listeners there are the greater the effect.
So why on earth is it considered reasonable for there to be musical rights organisations collecting money from people who have their radio on where the public can hear it.
The radio stations have already paid to broadcast the material.
It's a bizarre kind of world where the companies and/or various rights holders not only don't have to pay for advertising but get paid by those who broadcast it and by many many who receive that broadcast as well as benefiting from increased sales of the product as a result of the broadcast and the listeners.
I've heard of win win situations, but surely win win win win for one side of the equation only is problematic.

Kay Tie

"also that there be a reasonable claim of suffering commercial harm from what they claim is not fair use or fair dealing."

That's actually part of the argument: if the owner suffers no harm then they have a much weaker case to attack Fair Dealing. Conversely, if the claimed Fair Dealing undermined the owner's revenue then the barrier is set higher.

The courts do come down on the side of the fair dealer very often. For example, when C4 had a major programme on Kubrick's Clockwork Orange and extensively used clips, winch Kurbrick tried to stop.

I agree that we could have a few more "safe harbour" principles in statute law. And that we should certainly have provisions for redress from the menacing of individuals by vexatious rights owners. This could just as well apply to trademarks as well as copyright - for example giving some recourse to small businesses menaced by Stelios and his attempts to appropriate the English word "easy" (I cannot have been the only one cheered by the irony when Stelios was sued by Otange for trying to sell Easymobile phones using the bright orange colour!).

HuwOS

In fact on fair use/fair dealing I personally would like it to be even stronger.
I think the claimant should not only be able to give a good argument as to why the thing they object to is not fair use or fair dealing but also that there be a reasonable claim of suffering commercial harm from what they claim is not fair use or fair dealing.

By many standards, such as the amount of the original material used Red Letter Media's reviews of the Phantom Menace and others would not fall within fair use but could it really be anything else?
http://www.techdirt.com/articles/20100411/2216358957.shtml

HuwOS

Flawed and misused as the DMCA is, there are even fewer protections built into UK legislation.
And it still does fail at preventing abuse as with universal and the dancing baby.
The burden of proving that the big pockets did not act in good faith being on the proud parent.
http://www.techdirt.com/articles/20101025/03273411562/universal-claiming-dancing-baby-video-not-an-obvious-case-of-fair-use.shtml


On fair use/fair dealing

It does not seem unreasonable, that the burden of demonstrating that there are reasonable grounds to believe that a particular use is not fair use or fair dealing should fall on the copyright claimant, generally publishers,
rather than have generally average individuals forced to rather expensive court proceedings to attempt to justify what on the face of it would be accepted by most people as fair use or fair dealing.

Righthaven only now experiencing a setback in their copyright shakedown racket.
http://www.techdirt.com/articles/20101020/17471011517/righthaven-loses-first-lawsuit-judge-says-copying-was-fair-use.shtml

Kay Tie

"Should there be any consequence to someone falsely claiming copyright infringement?"

Under the DMCA the take-down notice is sworn under penalty of perjury. I've never seen anyone pursue this, despite some very obvious vexatious takedowns.

"Should Fair Use be a right or merely a possible defence?"

There are some pretty solid rulings on Fair Use (or Fair Dealing as it is in the UK). In the US all parody is protected speech (but not satire). Excerpts for critical discussion are allowed. But necessarily there has to be assessment of grey areas, just as "self defence" is both a right and a possible defence if you kill a burglar who attacks you - expect to justify your claim.

HuwOS

"Should Fair Use be only a possible defence or something you can be sure of in advance"

Better phrasing would have been
Should Fair Use be a right or merely a possible defence?

HuwOS

"This subject has not been raised in parliament so far. The vote last time was overwhelming against your view, Huw. Is their anough evidence of problems to change opinions here?"

I have to say that my opinion of parliament's last time, is that few politicians cared enough to be informed, and that the majority did not vote on a deal that was cooked up between the tory front bench and the labour front bench on a piece of legislation acknowledged to have actually been written by representatives of a section of the industry who had the most to gain from such legislation.

I guess the real question should be, is there anyone, amongst the readers of the blog, or from your constituency, whether from the vocal few or the generally quiet readers who actually approve of the current regime of copyright enforcement, or of the direction it is travelling in in terms of legislation like the DEA or proposed trade agreements like ACTA.

My own preference would be that government should completely review copyright, patent and trademark legislation in light of how it is actually used and determine if the purposes and/or intention of the legislation are being met, indeed whether anybody in parliament can actually imagine what the purposes of these things are, or is the understanding of them in parliament at the level of,
"well intellectually property is just like any property innit".

And what do you think Paul.
Should software or business processes be patentable.
Should trademark actually be able to extend to cover "dilution" of the brand
Should "Happy Birthday to You" be under copyright?

If I have a website up with political or even just personal observation, should my provider have to take it down if some 3rd party claims that there is some copyright infringing material on the site?
Should I have to go to court just to get it put back up?
Should anyone other than a court be able to order that a website be shut down (is it even desirable for a court to be able to do so, given the international nature of the web?
Should there be any consequence to someone falsely claiming copyright infringement?
Should Fair Use be only a possible defence or something you can be sure of in advance.

Should copyright legislation be like some law where you get challenged in court and have to be found guilty before losing or like libel law where copyright holders get to play a fruit machine to see what they can get away with if you dare not risk everything on defending yourself, or indeed where everything may not be enough to defend yourself with.


Kay Tie

"VCR was to be the "boston strangler"(according to the MPAA) to the movie industry"

Have a read of Jack Valenti's testimony to Congress. It's quite a laugh.

http://cryptome.org/hrcw-hear.htm

Thankfully SCOTUS boxed Valenti and his cronies in. Even on network PVRs (whereas here the industry quietly got the ear of a New Labour minister in 2003 and the law was tweaked to make network PVRs illegal: no debate, no publicity, just the addition of "within domestic premises" to the relevant clause).

HuwOS

It is hard to know Paul what would ever count as sufficient evidence, when the prevailing view as put forward by the publishing companies in particular, is based on no evidence at all.

There is a lot of copyright infringing activity online, but there is no evidence that this has any negative consequences for the industries.
Popular movies that people attend in droves at the cinema and that sell like hotcakes on DVD are also the most shared files online.
Unpopular movies and music that barely sell, also are not shared to any great extent.

As you know, it is very difficult to present evidence of the non existence of something.
But there are many many examples of copyright infringing activities benefiting creators of the material infringed.
I think the most recent example is the graphic novel "Underground" by Steve Lieber and Jeff Parker. A critically well received publication that did not have mass market appeal.

http://www.comicsalliance.com/2010/10/19/underground-artist-steve-lieber-wins-over-4chan-with-love-and/

A fan of the title, scanned and uploaded every single page of it on 4chan,
on being told about this, the artist, Steve Lieber commented on the thread, answering questions about his approach to his art and his motivations in producing this work which has led to quite a large bump in sales, along with requests from people who did not wish to get a hard copy but did want to support the creators, leading to encouraging levels of paypal donations.

It was Steve Lieber himself who initially informed the world of the positive effect the 4chan activity had on the title's sales.
His website here.
http://www.undergroundthecomic.com/

Now this will be dismissed by those that support attempting to legislate online copyright infringement out of existence as a one off and the success being due to very specific circumstances, an exception.
It is their response to everything that goes against the credo that copyright infringement costs creators and publishers money.
Either the successes are for something that is otherwise too small and unimportant or by unknowns or by something that is too big to fail or by too well known people, everything, in other words, for the people who want draconian enforcement of ip rights, is an exception.

The real pity is that people who do engage in online copyright infringement are not concerned about the effects of any current or future legislation on their ability to share and obtain infringing material, they are, on the whole, well aware that there is no technical ability to stop this activity and there is no realistic view that such an ability will ever be achieved.

What does concern people about such industry driven legislation is the effects on freedom of speech, creativity and new business models.
Already in many countries, files, views and websites that are not infringing but are in opposition to vested interests have been forced off line by false claims of copyright infringement.
http://www.techdirt.com/articles/20101008/02431711330/bogus-dmca-takedown-knocks-out-yet-another-political-ad.shtml
Some people wish to use these types of laws to target things like wikileaks, review sites, parody or political opinions that they disagree with.
http://www.techdirt.com/articles/20101025/02342411560/lobbying-group-issues-takedown-for-parody-political-ads-by-student-group.shtml

These are the real concerns about the type of legislation being written by certain vested (and on the whole self sabotaging) interests and passed into legislation by misinformed politicians who have taken no time and made no effort to understand the situation as it actually is.

It is important to remember that the industries creating a furore about copyright infringement affecting sales of music and dvds are the same people who opposed the technologies that created these markets in the first place.
Home taping was once going to kill the music industry, the VCR was to be the "boston strangler"(according to the MPAA) to the movie industry, these people were not just wrong in their predictions, if they had had their way back then they would have had no sources of income other than box office and tv sales (of course, tv itself was once proclaimed to be the killer of the movie business).
BTW, even the player piano was also once declared to be the instrument of destruction for the music industry.
For a list of the same or similar claims see
http://www.techdirt.com/articles/20100812/00371410599.shtml


I know this is a bit long for a comment but believe me it is far from exhaustive, it is more of a taste of the problems being created.

DG

I'll keep spouting 'em anyway, along with a dose of opinion.

I believe the figures given for estimated loss of revenue for the media distribution* industry assume that every illegal download is a lost sale. I think this is an unwarranted assumption. Just because someone will take something that's free doesn't mean they'd go out and spend money on it if it wasn't.

Kay Tie

No point bringing facts into this DG. Paul is a politician, so will fasten on to whatever he was told last that fits into his world view. Facts just disturb the tranquil established order of the mind and are most unwelcome.

DG

http://news.bbc.co.uk/2/hi/entertainment/3052145.stm

How's this for evidence about the impact of copywrite infringement?

Kay Tie

You didn't read the comments, did you Paul? I asked you to read the comments by THE PEOPLE WHO DID THE WORK. Not from some stupid journalist who knows almost as little as a politician.

Please don't try to lecture us - people who actually know things about this - from your wiffly waffly conspiracy words. We who did the work have HARD FACTS and reality on our side. All you have is opinions filtered through your belief system.

Go and talk to someone who knows (not a journalist, not an arts graduate, not a politician). Is it really too much to ask of our representatives that they take the time to find out the truth? Clearly it is.

Paul Flynn

This subject has not been raised in parliament so far. The vote last time was overwhelming against your view, Huw. Is their anough evidence of problems to change opinions here?

Paul Flynn


I did follow your link Kay Tie. It appears to fully support my case- scaremongering, exaggerations from which many profited. It reads as follows.

"The Western world, with a few notable exceptions, poured billions of dollars into electronic pesticides to defeat the Y2K bug. Only to find that for the most part it could have been defeated by turning the systems off then on again. Shades of the hit C4 comedy The IT Crowd. In reality it's the solution put forward in Stephen Fry's Archive on Four next Saturday by Ross Anderson, Professor of Security Engineering at Cambridge University, a world authority. Here - exclusive to the blog - is the full interview Stephen conducted with Ross on the crisis that fizzled out and the prospects of a real future digital Armageddon:

So, why the silence when the bug didn't bite? The answer's in the programme. Politicians, experts and businessmen all profited in status or cash from the threat. In the media - to paraphrase the crime reporters - it bled so it led. In the USA, government brazenly claimed victory for its defeat. In reality, the enemy was almost totally imaginary. But it's useless blaming the great and the good. It was inevitable. We'd been told repeatedly that this brilliant new technology would change the world. Then we were told it could all stop on the stroke of one spookily special midnight. We were the newly addicted, suddenly faced with the prospect that our supply was fatally endangered. There was only one thing we could do. Panic. Then spend millions fixing it"

Kay Tie

"I still think it will be far less of a problem than you think Kay-tie. "

I hope you're right. What I most fervently hope is that irrational naysayers aren't able to stymie efforts to do the remedial work that is necessary.

Kay Tie

"I for one would be grateful to not have to sit through an anti-piracy advert on a dvd that I've bought which doesn't even have the decency to let me skip past it.
The best way to avoid such irritations would be of course to "pirate" it. And that is very much the least of the annoyances the publishing industries seem determined to foist on their customers."

Amen to that.

HuwOS

You're on a hiding to nothing Paul if you want to place the Y2K issue in the same box as governmental failures like the thoughtless and foolish reaction to the over hyped swine flu situation.

If you want to castigate computer or internet related hype, please feel free to have at the publishing industries and their entirely fictional figures for "losses due to piracy" and the fact that New Labour and the Tories let these same fictioneers write the digital economy bill and furthermore colluded to pass it into legislation before the election.

Ed Vaizey's office was kind enough to reply to a query of mine in relation to his credo about copyright infringement and part of that reply was
"I think it would be fair to say that the development and initial implementation of the online copyright provisions of the DEA had to rely to a significant extent on industry estimates of losses suffered due to unlawful file-sharing. The Government made this clear both in any statements and within assessments made and whilst the specific figures may have been questioned there has not been a serious attempt from any side to deny that this widespread infringement is causing harm to the creative industries, which is why it should be tackled as quickly as possible. The BPI claim P2P file-sharing costs the UK music industry £180m pa (2008), and IPSOS estimates a loss in the UK for TV and films of £152m (2007). "


Before going on to say that
"the provisions of the Act are designed to build gathering of impartial evidence and real feedback on impact to all parties into the implementation process"

Not real evidence as to whether copyright infringement is having any actual impact at all but with the assumption that it has an impact and that impact is wholly negative being presupposed, it seems unlikely that this government as with the last has no interest in the facts.

I'm sure that everyone can see the problem, in that politicians seem to believe that the publishing industries and certain other groups represent all sides whereas individuals are probably just cranks.

What we actually need is a "side" for the vast majority to side with that actually represents the consumer, sick to death of industry imposed limitations on what we can do with products we legally purchase.

I for one would be grateful to not have to sit through an anti-piracy advert on a dvd that I've bought which doesn't even have the decency to let me skip past it.
The best way to avoid such irritations would be of course to "pirate" it. And that is very much the least of the annoyances the publishing industries seem determined to foist on their customers.

valleylad

I still think it will be far less of a problem than you think Kay-tie. Binary problems will remain on some systems. Properly written src (I.e not assuming time_t = 32 bits) should be fine. Neither the iso 90 or 99 c standards define the size of time_t, while safety critical standards such as MISRA or CERT's either prohibit or admonish against usage in such a way that will cause problems. As far as windoze is concerned I'd have no idea - Macintosh for everyone, Linux for development and windows for solitaire is my approach.

Kay Tie

"2038 is not wired into C. It is really a 32bit *nix problem."

Alas it's in the C library, and so is in Windows too:

http://msdn.microsoft.com/en-us/library/1f4c8f33(VS.80).aspx

" suspect we might have left most 32bit architectures behind during the next 38 years!"

Alas it's the software, not the hardware: I bet there are plenty of 32-bit applications kicking around 30 years from now. Bits of old Windows XP binary inside devices like this one:

http://krebsonsecurity.com/wp-content/uploads/2010/03/aed3b2d.jpg

DG

:)

There are only 10 types of people in the world: Those who understand binary, and those who don't

valleylad

2038 is not wired into C. It is really a 32bit *nix problem. We'll still have legacy issues but I suspect we might have left most 32bit architectures behind during the next 38 years!

Rubbish joke:
Q: Why do programmers confuse Halloween & Christmas?
A: Oct 31 = Dec 25 :)

Kay Tie

"The UK spent several fortunes avoiding the 'bug' KayTie Italy spent buttons. The results were about the same in both countries."

Yeah, I've heard that statistic, but usually the country varies (Poland, Russia are the lost popular ones). I don't believe it, and in any case it doesnt bear comparison since Italy has a negligible finance industry.

Did you read the writings I pointed you at? From people with actual experience at the coal face? Or do you prefer to sit in your little bubble and pass off urban legends as facts? I shouldn't be surprised that an MP dies this, but it's still disappointing.

Patrick


"We are fighting corruption – with our own special ethical Western corruption delivered on pallets, in bubble-wrapped bundles of $100 bills."

Anyone in any doubt that this above statement is a fact should have a look at this link , a dispatches channel 4 programme shown earlier this month.

An Afghan women and her 3 children are blown to pieces. The US soldiers response was to say "sorry" and to give the families father 2,500 US dollars per life.

This money was carried around in a rucksack as routine an operation as their daily lunch.

If this war is about defeating AQ why are we not in at least three other countries that they are known to operate from?

Why are we fighting the taliban that have no connection to world terrorism?

http://www.channel4.com/programmes/dispatches/episode-guide/series-71/episode-1

Paul Flynn

The UK spent several fortunes avoiding the 'bug' KayTie Italy spent buttons. The results were about the same in both countries. UK spent £1.2 billion on swine flu anti-virals amd vaccines. Poland spent next to nothing. Twice as many deaths per million here than in Poland.

Neither scare lived up to their billings. But vast amounts were made by scaremongers.

Kay Tie

Read the comments here:

http://www.bbc.co.uk/blogs/radio4/2009/09/stephen_fry_in_the_beginning_was_the_nerd.html

Compare and contrast the comments by engineers (I.e. people who know lots of things about the topic) and the comments of the radio producers (I.e. people who don't know any details about the topic). Andrew Oakley's comments should be particularly enlightening to those who hold no engineering expertise.

Kay Tie

Isn't it odd how "cuts" (i.e. a slower growth in spending) will cause the sky to fall in (when these "cuts" are slightly less than Alastair Darling proposed) yet things that actually can cause catastrophe (epidemic, massive electricity blackouts, solar flares, rampant computer viruses targeting the Internet infrastructure) are belittled. Such an odd view of life.

Kay Tie

"wHAT WAS IT KAYTIE. A BIT OF EMPTY SCAREMONGERING BASED ON BAD SCIENCE."

IT WAS ENGINEERING, NOT SCIENCE. AND IT WAS VERY REAL: I HAD FRIENDS WORKING NIGHT AND DAY TO FIX CRITICAL BUGS.

Can we stop shouting? My throat is hurting.

If this denial continues I fully expect you to start claiming the CIA orchestrated 9/11 and that the Holocaust never happened.

Perhaps you should talk to some programmers who were actually involved? I am sure there were snakeoil salesmen involved too: there always are in any great endeavour (I bet you don't have to look very hard in the Olympic Delivery Authority). But that doesn't mean that anything these people exploit is a hoax.

I do hope you'll help the country prepare for the 2038 bug:

http://en.wikipedia.org/wiki/Year_2038_problem

This one is much harder to fix: it's wired into the C language itself. And wouldn't it be deliciously ironic that after all the effort last time the ignorami scoffed such that the next date bug won't get fixed and then there will be widespread failures. I shall cackle extra loud just for you, Paul.

Paul Flynn

wHAT WAS IT KAYTIE. A BIT OF EMPTY SCAREMONGERING BASED ON BAD SCIENCE.

Kay Tie

"My bid was for a three hour debate on world scares from the Millennium Bug to Swine Flu."

I hope you're not suggesting the Millennium Bug was a hoax?

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