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Australian Judge Explains Why Three Strikes Isn’t Reasonable

Australian Internet users are today celebrating a landmark decision in which an Australian court ruled against the film industry in their lawsuit against iiNET, Australia's third largest ISP.  The industry had asked the court to hold the ISP liable for infringing BitTorrent activities of its users.  The court soundly rejected that demand, holding that the ISP could not be seen to have authorized the infringement.

While the authorization analysis is unquestionably the foundation of the decision, there is a detailed, must-read section on subscriber termination schemes, better known as three strikes and you're out (paragraphs 425-442).  In it, Justice Dennis Cowdroy explains why such schemes are far more complicated than is often claimed and are simply not reasonable in many circumstances. 

First, Justice Cowdroy confronts claims that ISPs terminate subscribers for non-payment of accounts, so why not for copyright infringement:

Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight ‘yes’ or ‘no’ question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard. The respondent apparently did not properly understand how the evidence of infringements underlying the AFACT Notices was gathered. The respondent was understandably reluctant to allege copyright infringement and terminate based on that allegation. However, the reasonableness of terminating subscribers on the basis of non-payment of fees does not dictate that warning and termination on the basis of AFACT Notices was equally reasonable. Unlike an allegation of copyright infringement, the respondent did not need a third party to provide evidence that its subscribers had not paid their fees before taking action to terminate an account for such reason.

After rejecting claims that Australian copyright law envisages termination as part of that law's safe harbour provisions, Justice Cowdroy turns to claims that ISPs have the technical capability to cut off access:

One need only consider the lengthy, complex and necessary deliberations of the Court upon the question of primary infringement to appreciate that the nature of copyright infringements within the BitTorrent system, and the concept of ‘repeat infringer’, are not self-evident. It is highly problematic to conclude that such issues ought to be decided by a party, such as the respondent, rather than a court. Copyright infringement is not a simple issue. Such problems as identified are not insurmountable, but they do weigh against a finding that the respondent could conclusively decide that infringement had occurred and that it had the relevant power to prevent by warning, suspension or termination of subscriber accounts, even if it had the technical capability to do so. Even if feasible, such a scheme would likely lead to significant expense incurred by the respondent, as was alluded to by Mr Malone in his second affidavit. Of course significant expense was likely to have been incurred by the respondents in Kazaa, but that was in the context of those respondents having provided the ‘means’ of infringement. The respondent has not done so in these proceedings, and thus the expense and complexity of the imposition of responsibility for a notice and termination scheme on them manifestly militates against the conclusion that such scheme is a relevant power to prevent.

All of these leads to an unambiguous conclusion from the Court:

The Court does not consider that warning and termination of subscriber accounts on the basis of AFACT Notices is a reasonable step, and further, that it would constitute a relevant power to prevent the infringements occurring. The respondent did not create the ‘means’ to infringe copyright. It was the constituent parts of the BitTorrent system which has given rise to the infringements. Consequently, it cannot be incumbent upon the respondent to stop the infringements. Even if it was incumbent upon the respondent, that does not lead to the conclusion that it was a reasonable step for it to take action.

Obviously termination of the subscriber accounts would constitute a step that would prevent the person or persons from infringing (at least with that ISP), but it would also prevent that person or persons from using the internet for all the non-infringing uses to which the internet may be put and to which they have contracted with the respondent and provided consideration. Given that Wilcox J had no desire to order the respondents in Kazaa to shut down their system where he found the predominant use was to infringe copyright, it would seem that termination of accounts in the circumstances of unproven and sporadic use, at least absent judicial consideration of the extent of the infringement on each account, would be unreasonable. The words of Higgins J in Adelaide Corporation are apposite. While termination of accounts would stop the infringement, it would do much more and in the circumstances it would not be reasonable. Consequently, warning and termination/suspension does not relevantly constitute a power to prevent infringement on the part of the respondent.

When combined with today's reports that Australia has opposed three strikes as part of the ACTA talks, there is considerable good news on the copyright front coming from down under.

75 Comments

  1. So the court is saying that ‘copyright infringement’ (and thus three infringements) is complicated enough for a court to decide, never mind an ISP or third party. So takedown notices are not reasonable and the ISP shouldn’t be expected to act on them (notices being the product of a third party).

    AKA only the courts should be deciding what infringes and whether an individual should be prevented from accessing the Internet.

  2. A judge who understands the issues!
    Somebody contact this guy, and ask him if he’ll come to Canada. It seems our own judges are either technically inept, or have their sights firmly set on some political future, making it impossible for them to render equally reasonable judgements.

  3. Well done
    After all, what constitutes an infringement? If I were to make available through BitTorrent a 4 MByte file entitled “Lady Gaga – Poker Face”, for instance, but instead of being an MP3 it was composed of the text “This is NOT the song” over and over again, would that be infringing? Now, how about I do this with 3 songs? It appears that the labels would like to be able to terminate my Internet connection based on that, even though I am not making the song available.

    That is the problem with the setup that is occurring even now in the US. The one woman that was found guilty of sharing 12 songs, the labels didn’t even have to prove that it was those songs (otherwise they would have had to have actually downloaded them and they couldn’t prove that the songs had been downloaded).

  4. Darryl Moore says:

    Yet at the same time and from the same country we get rulings like this:

    http://www.theglobeandmail.com/news/arts/australian-court-says-80s-hit-down-under-copies-folk-song/article1455612/

    Is there no sanity to copyright law?

  5. His comparison to Kazaa doesn’t sit right for me. In providing the internet, they are providing “the means” to infringe on copyright, just as in providing a file sharing tool, Kazaa provided “the means” to infringe on copyright.. Producing plastic bags provides “the means” for murder as much as producing guns does. It is a pretty big leap in my mind to relate any of these services to the actual law being broken unless intent is there (“primary purpose” type stuff).

  6. Implementing something like the 3 strikes rule is a lot like putting horse shoes on the wheels of cars. It simply will not work due to changes within the marketplace, both economically and politically.

    I for one would love to see Van Loan and Clement attempt to implement this here. Once Canadians are faced directly with this prospect, there would be heavy political and legal consequences for this. Maybe the Canadian people need to be faced with this directly in order put this issue to rest here, or maybe those against this need to push forward a lot more aggressively through our courts to ensure that the department of international affairs is not over reaching it’s mandate on ACTA. There is reasonable doubt to assume that’s what’s going on, and the public has a right to know what we are negotiation especially on something that is a big of an issue, and has far reaching consequences on domestic law, constitutional freedoms, and democracy. What is the CIPPIC doing on this file legally?

  7. lawful uses
    ” “termination” of subscribers accounts, and how this would not be reasonable because it would prevent use of the internet for all sorts of non-infringing uses.”

    Isn’t that like saying repeat drunken drivers should never lose their driving licenses because it would prevent the use of their car for all sorts of lawful uses”?

  8. @Sam well, it’s not like drunk driving at all, but if it were it would
    be like saying people who have been accused of drunk driving (by civilians, not lawful agents, like their arch enemy from highschool maybe) 3 times shouldn’t lose their license with no trial.

  9. Darryl Moore says:

    @sam
    So does that mean that people should be licenced to use the internet like they are to use cars?

    Also note that drunk driving is a public safety issue.

    Finally also note that the court said that copyright was far too complicated and it was not reasonable to expect the ISPs to make the determination as to whether infringement had occurred or not. Using your car analogy, perhaps this would be equivalent to you seeing a fast driver, assuming he must be drunk, then using the powers invested in you as a civilian to have his license pulled.

  10. @Sam
    No it doesn’t. The equivalent would be to confiscate the car due to three drunk driving accusations on the driver of the car. I put it this way because, if someone hijacks your unsecured wireless network at home or for a business, they can use it for infringing purposes. Under these proposals, this would cause you to lose your internet access.

    Basically, three strikes is about the IP “owners”, or rather claimants, don’t want to have to prove the guilt of the party accused as would normally be the case in a court case. It is too much work.

  11. The RIAA/MPAA want to be judge jury and executioner. A regular legal process requires actually considering each case, providing evidence, and only punishing those actually guilty is not efficient enough for the giant shotgun aproach they want to use.

  12. strunk&white says:

    not in a box; not with a fox
    Sam I Am, welcome to the land of “I can find a way to call your analogy wrong, therefore the spirit of your argument must also be wrong.” Note that drunk driving is a public safety issue, therefore everything you think you know about copyright infringement is now called into question.

    If I read your comment correctly, I think you’re saying copyright infringement is wrong in a moral context, much the same way drunk driving is wrong in the same context, and that both should be strongly discouraged by our legal system.

    Good luck with that argument here. Here, there are no moral contexts, only boys with too much time on their hands who don’t want you to touch their stuff for fear you’ll find the stash of porn. I’m not attacking anyone, btw — I’m just using an analogy.

    Wait around for awhile. One of these jokers will reappear in a pirate suit and give you some more lessons based on his in-depth knowledge of the law.

  13. Same old story eh? Everyone who disagrees should be disregarded as a [communist / thief / pirate / etc]? Sigh. As the corrections to the analogy are trying to point out, one big problem with the three strikes proposal is not how harsh the penalties are, but who decides who gets punished. It just doesn’t make sense to make the alleged victim responsible for determining the guilt of the alleged offender and for executing their punishment.

  14. Who gets hit first?
    If a “3 strikes” law gets put into place, I predict that the first and hardest hit locations will be “public” internet access locations. Hotels, restaurants, and various other venues that currently offer internet access for their guests. No more “public Wifi” or in room internet access.

    These kinds of locations would be stuck in the middle, with guests demanding internet access and “3 strikes” requirements shutting them down. As a general rule, these kinds of locations cannot afford to constantly monitor a guest’s usage for infringement, even if guests would agree to the necessary invasion of their privacy to allow this level of monitoring.

    Business travellers, artists, authors, government employees, movie productions, etc. All are becoming heavily dependent on the availability of these “public” internet services. With a “3 strikes” law, these services would either become prohibitively expensive, or be shut down.

    Universities and public/private schools would become the next causalities.

  15. Captain Hook says:

    Ye black kettle
    Avast me maties, leave it to some scallywag who dresses ‘em self up as book, t’ be the one criticizing me wardrobe. Y’know that turning a book into ‘ye livery might be considered a derived work. I hope ye got permission from the publisher before doing so. Har har har.

    So if I be reading your comment correctly, the best approach to analyzing the suitability of an analogy, is not to look at where it breaks down, but instead to generalize it as much as ye needs to, to make sure it works.

    I be thinking ye has generalized Sam-I-Am’s analogy to such an extent so as to make it practically worthless. Allow me t’ demonstrate by changing ye interpretation ever so slightly.

    “If I read your comment correctly, I think you’re saying copyright infringement is wrong in a moral context, much the same way GENOCIDE is wrong in the same context, and that both should be strongly discouraged by our legal system.”

    Aye, that one works just as well, which leads me t’think that ye have devalued Sam-I-Am’s comments even more than his critics. Congratulations.

    Har, har, har,

    I don’t think I need to demonstrate me understanding of law. Indeed I could do so only with a foe who could form and understand rational arguments. A skill which, young boatswain, ye clearly lack.

  16. strunk&white says:

    not in a house; not with a mouse
    I rest my case.

    you see, crade, when you consort with pirates and thieves…

    I’m not defending one system of punishment over another. I’m just making sure reasonable folks understand that, often, beneath all this stirred-up panic about 3-strikes there lies a poorly camoflaged belief that copyright infringement is actually okay.

    I didn’t invent Captain Hook. He’s on your side. Enjoy his brilliant company at the next fair copyright barbecue.

  17. @strunk&white
    Please review the following with an open mind:

    http://www.tnr.com/article/the-love-culture

    I’m curious to hear your opinion on this perspective.

    Frankly, this article presents a convincing argument as to why the “system” is broken. Between the continual extension of copyright terms and the technology of the digital age, copyright law no longer reflects a proper balance between society and the holder.

    From what I can see, it’s isn’t even legally possible to have the equivalent of a “library” in the digital age. Can you?

    If the system and it’s laws are broken this badly, where do you draw the line on who is a “pirate” and who isn’t? Your thoughts?

  18. Captain Hook says:

    Ye case is cracked
    Aye, and I rest me case also.

    Old stink ‘n witless couldn’t make a point sharp enough to cut through wet gruel.

    Obviously he beats his wife. Ye can deduce that from his argument exactly the same way he concludes I condone copyright infringement from mine.

    Ye scurvy dog. We shall hunt ye down and make ye pay for what y’done to that poor maiden. Arrrrrrrr

  19. Actually, you are defending one system of punishment over another.. Badly, by using the old “guilt by association” trick.

  20. strunk&white says:

    as old Mr. Schneider used to say
    We’ll try again…

    crade, go back, reread what I actually wrote, think about it (crucial step — please do not skip), and then try your response again. I think you’ll find I have no disagreement with you.

    The question “how do we punish infringers and pirates?” is far less important than “should we tolerate infringers and pirates?” My main concern here is that some very fine thinking about copyright and culture has been abused and stretched all out of proportion in an attempt to justify behaviours and activities that any law-abiding member of a free civil society should find indefensible.

    Generally reasonable thinkers on copyright take a moment now and again to address radicalism and extremism, dismiss it as wrong-headed and move on.

    For instance, I think rightsholding corporations and individuals who take an extreme protectionist position on copyright do themselves and our culture a disservice. I also think there must be a legal remedy for frivolously chilling litigation and legal bullying of all kinds, not just in the realm of copyright. The law should not work only for those who can afford to make it work.

    For a look at the other extreme, let’s hear from the good Dr. Lessig:

    “The [other] extreme, pushed by copyright abolitionists, that forces free access on every form of culture, would shrink the range and the diversity of culture. I am against abolitionism.”

    The point I often make about this blog space is that it is far too tolerant of radical abolitionist comment. And I have to wonder why that is.

    I don’t advocate shutting out these comments, but why am I the only one who finds the presence of Captain Hook not only far less hilarious than he seems to think it is but embarrassing to the whole enterprise of serious copyright reform? I know we’re all still waiting for Michael Geist to defend Hook’s beliefs and to congratulate him for his steel-trap-like grip on the law, but at some point we may just have to conclude that Geist is hiding out in the living room with the lights out, waiting for Hook to stop ringing the doorbell.

    I’ve said it before, and I’ll say it again — defend piracy and you lose all moral authority to criticize protectionism.

  21. strunk&white says:

    And in case you thought I forgot about you oldguy…
    I have always agreed with a great deal of what Lessig has to say. I also disagree with him on key points. My biggest concern with Lessig is that he is so often misinterpreted, and his ideas are presumed to lead to conclusions that are simply unsupported in his actual text.

    So, I agree with him when he says:

    “We need a renewed effort to strike this balance through interests that recognize the good in both sides. It would be a mistake to destroy new markets by eliminating copyright protection where it would do good. It would also be a mistake to assume that all access to culture should be governed by markets, regardless of the effect it has on access to our past.”

    And I take issue with certain of his interpretations. I don’t think the Google Books project, as designed and carried out, was covered by Fair Use, and I’m glad the class action suit forced Google to acknowledge the real copyright concerns of authors. I am totally with Lessig in thinking the settlement as it stands carries potential unfortunate side-effects for book culture, but I’m glad that first step was taken to slow down what was essentially (in my view) an old school large corporate land-grab for commercial gain.

    I certainly don’t share Lessig’s seemingly wide-eyed belief that Google engaged in book-scanning out of some idealistic urge to serve humanity. Google serves Google’s shareholders, and the Books project was designed to make lots of money out of uncompensated uses (again, in my opinion). Frankly, I’m baffled by the free pass Google seems to get with anti-corporate copylefters. You folks know they are a gigantic corporation, right? I just read today on Sookman’s blog that they are in a trademark dispute with a Chinese site that appears to be counterfeiting the Google brand.

    I can see someone naïve assuming Google’s scanning for indexing is fair use, but Lessig is not naïve, is he? So why does he excuse this infringement by Google? It’s a disturbing element of the Lessig persona. Equally disturbing is his paternalistic celebration of Brazil’s desperately poor in that Remix documentary. Does no-one else shudder at the sight of a rich North American in loafers flying in to dance a quick salsa, score a political point or two for his own views and then fly back out to the state that entertainment built?

    I love how Lessig is unequivocal about copyright regulates the handling of “property.” It may be the “least efficient property system,” but by gum, it’s about “property” and “owners.” Are you listening, Cory Doctorow?
    I’ve always thought seeking permission to quote was a terrible concession by doc makers. In Canada, your fair dealing rights should be jealously guarded. They are essential for freedom of expression. But because one sector insanely gave up their rights does not in any way suggest to me that the law is broken.

    I’ve got more, but with all this great power of mine comes great responsibility, and I must go buy milk. Anon.

  22. @strunk&white
    Piece of friendly advice. You were doing just fine, until you got to this point:

    “I know we’re all still waiting for Michael Geist to defend Hook’s beliefs and to congratulate him for his steel-trap-like grip on the law, but at some point we may just have to conclude that Geist is hiding out in the living room with the lights out,”

    As Mr Geist has repeatedly said, he does not condone, support, or moderate comments based on his personal views. You are attacking Geist because of comments posted by the Hook.

    Your comments would be much better received if you stayed on target, both subject and persona. Just as the Hook has a style that sometimes causes his message to be lost, often your message is lost in your attack.

    As far as I can see, you have an issue with the Hook’s “style”. You can’t see past the style to the content.

    —–

    As far as your question of “should we tolerate infringers and pirates?”, I think you are putting the cart before the horse. Fix the system first, and *then* take a look at who might be classified as “pirates” under balanced and proper copyright laws. In some/many cases, “privateer” might be a better description of the motivation behind what we are seeing today. Under updated and balanced laws, how many of today’s “pirates” would be no longer be?

    The system is so broken that trying to define and discuss what “behaviours and activities” are proper will get tied into knots. Fix the system first, so there can be some level of clarity and agreement. When the laws are so obviously irrational and unjust, it is normal human behaviour to ignore them, perhaps even “proper” behaviour.

  23. Lessig
    It seems you read something quite different than I did. I didn’t get any sense of “wide-eyed belief” that Google was purely altruistic from that article. From the way I read it, Google did the only thing a “corporate” could do in the circumstances.

    Yes, scanning is technically a “copy”. But that is one of the things that is wrong with copyright in the digital age – everything is technically a “copy”. Even something as simple as playing a DVD must create a in memory “copy” within the DVD player to output the video/audio. In Google’s Book case, simply scanning to create an index is in violation of copyright law.

    This is one of the reasons that copyright law needs to be updated for the digital age. Since *every* activity technically involves a “copy”
    of some kind, simple laws that blindly limit copying are inappropriate. The concept of “use” must be incorporated somehow. A total rethink..

  24. strunk&white says:

    oy
    alright, so I responded to the Lessig article in good faith, and I get the old “it seems you read something different…” Blah, blah. So we see different things in Lessig. I am surprised not in the least.

    To me, Lessig is a very smart, deeply flawed intellectual. He’s real, in other words, and so instead of just endlessly repeating stock phrases from his writings, I try to analyze them and get at some real, workable meaning through argumentative test.

    Save your friendly advice for your friends, and instead please try to understand what I’ve actually written. I’ve heard the “everything is a copy” bit before, believe me. It’s a nice rhetorical party trick, but it fails to address the very real property concerns of the owners Lessig discusses in his article — so he actually goes on to address those concerns, and when he does, as I mentioned earlier, I mostly agree with his conclusions.

    Your conclusions, on the other hand… yikes. Excusing and even blessing active piracy as a reasonable response to the incidental infringements made manifest in digital technology? That’s exactly the danger of surface-reading Lessig. That’s beyond naive, it’s mendacious.

    As to Hook’s style — it’s hard to be offended by something that doesn’t exist. Hook is substantively wrong every time he taps the keyboard, and no-one here challenges him on it but me and the occcasional Sam I Am who then gets scared away by the pile-on mentality. I can agree in principle it’s not Geist’s job to correct the thought of his commenters (what exactly Geist’s job is we’ll save for another rant), but the more you and crade and the like let Hook blather on without objection the less likely you are to convince anyone of anything.

    By the way — the bit in the article where Lessig uses his child’s illness to score a cheap point about information availability? Shudder. Are there no editors at The New Republic?

  25. strunk&white says:

    oh, and speaking of Australia, copyright and punishment
    http://bit.ly/cZjjcq

    That’s a spicy meatball!

  26. Party Tricks
    “I’ve heard the “everything is a copy” bit before, believe me. It’s a nice rhetorical party trick, ”

    Ah, but it isn’t a “party trick”. It’s the realities of the technology. Ask any programmer. I’ve been programming since before PCs existed, but don’t take my word for it, ask. Even “surfing the internet” or “reading your email” creates a local memory copy of the web pages being served.

    This is part of what I mean when I say the digital age has turned copyright law, as currently written, into something that does not reflect reality. When you combine the requirement and the ease of creating a copy to do anything at all, with the way copyright law is currently worded it simply does not make sense. What was in the past simply normal accepted behaviour is now a recipe for conflict between society and rights holders.

    Consider public libraries and ebook readers. Is there any possible way, under current copyright law, that a public library can lend an ebook (not the reader!) to anyone? What happened to bring this situation about? How do we fix it?

    VCRs and DVRs changed the way people viewed “TV”, mostly for timeshifting. But implicit in their behaviour was that they also shared these recordings. The digital age and file sharing removed the requirement for media, they can share with others around the world. What was small scale in the past is now wholesale, but people are still essentially doing what they always did. I am troubled by the scale of things and the harm to the copyright holder, but at the same time I acknowledge that most of the individuals, individually, are simply doing what they have always done. I don’t have “the” answer, but I know it isn’t reflected in the current state of copyright law. Not all file sharing is “piracy”, but not all of it is right either. What is the proper balance? How to define it? Certainly not by the simplistic term “copy”. The term can’t really apply to the concept of creator’s rights in a digital age, not in the true spirit of a balance between society and those rights.

    In your “speaking of Australia”, the case you referenced, I would wholeheartedly agree with you. In terms of pre digital age “accepted behaviour”, it would not be acceptable. The digital age and file sharing doesn’t make it acceptable, it just makes it easier to do.

    It’s when we try to map previously acceptable, normal, behaviour into the digital age that we run into problems. The scale of things scares the rights holder, but from the perspective of each individual they are still mostly doing what they have always done. That scale can also be an opportunity for the rights holder, but it’s a double edged sword that isn’t going away. How do we deal with it in a fair way?

    Can you honestly say you have never lent or borrowed a book or a CD a DVD? Was it legal to do so? Try doing the same thing with an ebook file, or a purchased mp3 tune, or a purchased download of a movie, without infringing copyright. Forget about “right or wrong” for a moment, and just keep doing the same things you were allowed to do in the past. There is no such thing as lending or borrowing a copy of anything in the digital age. It’s all simply a “copy”.

    When the system is broken this badly, I’d suggest we fix the system before we start putting labels on people. I don’t live in some neatly labeled pigeon hole, and neither do you.

  27. strunk&white says:

    Did you look up mendacious?

  28. Captain Hook says:

    Keeping me crew
    Teh heh,

    I’d say oldguy and Lessig have nailed the issue quite solidly. Aye, by following their approach to copyright reform, I fear too many people would start to see the law as being fair and I’d have a much harder time manning me crew.

    Of course ye shall never get old whitey to see past his ‘copy is a copy’ rhetoric, or concede anything that even resembles fair use. I doubt he’d even concede that we should NOT follow the Europeans and Americans and increase copyright to LIFE+70, His idea that we should enforce the laws we have now (and even toughen the remedies), then look at actually fixing them later will simply breed more discontent.

    As it is his lot that her majesty’s government takes their advice from, I expect I’ll be able to keep me boat well manned for a long time to come. Arrrrrr, I might even be able to build a fleet. Much oblige whitey. Arrrrrr

    Captcha: pillage Cities Har har har.

  29. Didn’t need to look it up.. But like any unsubstantiated name calling, I didn’t respond to it – directly.

  30. strunk&white says:

    choices
    Look, oldguy, either you need to grow a thicker skin or get smarter, because you can’t keep saying monumentally dumb things in a public forum without expecting people to call them dumb. I’m the one in “enemy territory” here, apparently, and I take all the heat you can bring. If your idea of reasoned debate is that I have to listen to every half-baked lecture you pull from what you “think” Lessig means, without criticizing it or you for offering it, you need to buy some Chardonnay and join a polite book club. These are the trenches. You’re happy to let some costumed clown fight your battles for you, but get scotty at “mendacious?” How old does an oldguy have to get before he grows up?

    This boils down to the same old argument — can you justify illicit, immoral and even criminal behaviour in the name of changing technology. I say “no, you can’t.” And what say you, good old sir?

    oh, it depends… the system is irrevocably broken… there’s no solution beyond razing it and starting over… normal behaviour has been criminalized… everything digital is a copy so how can we let copyright regulate digital behaviour.

    Yes, yes, yes — and all that is fixable, and being fixed. New models are being developed, tested, fixed, remodeled. No-one here is interested in stopping Bobby-Sue from sharing her legally purchased Lady Gaga with Billy Bob. The discussion is open as to whether or not that activity is correct or not — me, I couldn’t care less about contained private copying, format shifting, time-shifting — who cares, it’ll happen one way or another and the market will make sure its cheap or free. I love libraries, mixed tapes, old beat up copies of books, etc. Samizdat networks of shared literature… don’t even get me started. Fantastic. I am also a consumer of culture on a large scale and there is nothing about copyright that stops me from doing what I want to do because I know my own rights under the law, and I respect reasonable limits. There is an entire generation growing who have never had to pay a cent for their personal music collections. That’s not normal pre-digital behaviour, is it?

    Far too many halfwits like Hook have read just enough Lessig to think they’ve joined the next great revolution, and are out there promoting the radical fringe of digital copying. By not criticizing them in any way, you hurt your own cause. You folks may want to ignore or even celebrate the market damage illegal file-sharing has caused to the big bad entertainment cartels, but you are naive children if you think that’s what either Geist or Lessig are actually promoting. This is an industrial war for percentages, and whoever the winners are, two things are absolutely certain: consumers will pay, and the rule of law will stand. We can either get to that inevitablility with most of our creator rights intact, or we can get there holding fewer rights.

    Please, stop whining about name-calling. Passive aggression and pedantic condescension are much more offensive, and I don’t think I’ve ever made it to the bottom of one of these comment streams without having to shovel loads of that stuff out of the way.

  31. strunk&white says:

    down under
    Hey, how come Dr. Geist hasn’t posted the news about the hacking and file-sharing takedown in Australia? Mario and Luigi bonk a pirate on the head and gain 1.5 million points.

    Isn’t that important news in the world of internet and e-commerce law? Wouldn’t someone holding a research chair in that topic want people to know about it? Or is he too busy thumbing through a thesaurus for synonyms of “calamitous?”

  32. Captain Hook says:

    You can’t win!
    Aye, whitey why is that?

    He isn’t even blogging about Italy ordering ISPs to block the pirate bay, or google deploying ultra high speed FTTH.

    The amusing thing about these two is that on the one hand you have Italy’s hopeless attempt to stick their finger in the dyke and at the same time Google making the water level behind the dyke 100 times higher. Italy can’t win!

    The one key significant point you constantly miss whitey, is that the rule of law will NOT prevail, as you so naively believe. Not at least if it remains as it is. Individual behaviour on the net CANNOT be controlled sufficiently to reduce piracy by any significant amount, and the task is only going to become more difficult.

    The only strategy that has a hope of working is to convince people that respect for copyright is the right thing to do. The RIAA education campaigns wont work. The only thing that will work is to acknowledge that people other than the original creators have rights too, and make some meaningful effort to guarantee those rights in law. I have seen zero concessions from the lot on your side of the fence in this regard. This unwinnable war will only continue until that happens.

  33. strunk&white says:

    I say the rule of law will stand and the pirate savant says “No it won’t.” I say your side may be naive, and Cap’n Crunch says “No, you’re naive!”

    I don’t understand how you’ve failed to convince the vast majority of legislators with rhetorical skills like that.

    I want you to stand behind your claim that the law can’t reduce piracy, Hook. Go to Australia (please, go), hack a Nintendo game and file-share it. We’ll all wait right here for your triumphant return.

  34. You want it straight..
    “can you justify illicit, immoral and even criminal behaviour in the name of changing technology”

    Unlike you, I can’t answer this with a simple yes or no. When society and technology change to the point where customs and laws no longer apply, they *will* be ignored.. Morality doesn’t enter the picture.

    We’ve already discussed the prohibition era in the US and other countries. You seem to be advocating that simply “obeying the laws” is always the “right” thing to do. Well, here are some odd Canadian laws that require a “moral judgment”.

    - You may not pay for a 26 cent (or more) item with only pennies. (Canada)
    - Citizens may not publicly remove bandages. (Canada)
    - Wooden logs may not be painted. (Alberta)
    - It is illegal to kill a sasquatch. (BC)
    - When raining, a person may not water his/her lawn. (Nova Scotia)

    Just because a law is “on the books” doesn’t make it rational or reasonable. Nor does disobeying that law automatically make a person immoral or a criminal. You have to look at the individual circumstances. That’s why I will not give a simple “yes or no” answer to a wide open general question like yours. When you give me specific cases, I have given my opinion.

    “No-one here is interested in stopping Bobby-Sue from sharing her legally purchased Lady Gaga with Billy Bob. The discussion is open as to whether or not that activity is correct or not”

    Sometimes it is, and sometimes it isn’t.

    “I love libraries”

    Wonderful, will your kids and grandkids feel the same? Can they even continue to exist in the digital age? You still haven’t answered this.

    “Yes, yes, yes — and all that is fixable, and being fixed.”

    Can I have a reference? Show me where it is “being fixed”? Or even being addressed at the right levels? These are the kinds of things that SHOULD be on the table at ACTA. Are they? Is there even a hint that they are? You made the statement, now please supply a reference.

    You seem to agree that copyright laws are outdated and no longer reflect reality. The system is broken. When laws are outdated and don’t reflect reality, people will ignore them and have zero respect for them. Fact, and human nature. If you want people to obey the law, the law has to make sense and be in proper balance.

    From what I can see, the Hook is one of those that recognizes that the system and laws are no longer relevant today. His “answer” is to ignore it until it is fixed, until it becomes relevant. His attitude is much like many of your hated P2P users today. I can’t disagree with his assessment of the situation, although I can’t justify wanton disregard of copyright either. If that makes me “wishy washy” in your mind, so be it.
    If you can show me where progress is being made to address the concerns and assessment represented by the Hook, I’ll gladly address his methodology. Right now the system is so out of balance that there is no logical, or moral, or ethical, argument that could convince him to “obey the law”. Fix the system, change the laws, bring it back into a proper balance between rights holders and society, and then the arguments might have more effect. Leave the system as it is, and we will have a “society of criminals”. Prohibition all over again.

  35. Captain Hook says:

    We win
    whitey I can stand behind my claims, and I don’t have to go to australia to do it. Here are a couple of links for you.

    http://torrentfreak.com/utorrent-users-double-to-52-million-in-a-year-091225/

    torrentfreak claims there are 52 million uTorrent users every month. Double over last year. And that is just one client.

    http://sourceforge.net/top/topalltime.php?type=downloads

    sourceforge’s top downloads are all file sharing programs. Together they add up to over a billion downloads. Sure a lot of them will be repeat downloads, but again I’m sure you are looking at many tens of millions of unique users.

    The trend since all this began has been to increase P2P users. Even in the States where the most draconion laws against users have been used, usage has been going up!

    The Conference Board of Canadas study today acknowledges that there is almost no stigma associated with P2P copyright infringement.

    As FTTH gets more popular there will be more people using this software, and it will be easier to mask your identity through overlaying mesh networks and VPNs.

    How much proof do you want, that the law will not stand? This isn’t a he said she said argument. These are the facts. Go look for yourself. You are most certainly the one being naive here.

    Marching out one poor sod from australia who lost the battle proves nothing. The war marches on, and we have far more people on our side who openly disregard the law. You cant win.

    We don’t have to convince the legislators. We have strength in numbers, and we will do what we think is right irregardless of the law.

    Your only recourse is to offer something meaningful to us to convince us that it is to OUR advantage to obey the law. Not just yours!

  36. strunk&white says:

    wait… what?
    You mean to tell me that people will gladly take things when they are offered to them for free? How could I have overlooked this essential aspect of human nature?

    Oh, this is satisfying — I’ve known for a long time that the cowardly Cap’n Schnook is all talk and no action, and now he reveals his real character to the rest of the world. Engaged in an actual throwdown to walk the walk, he throws up.

    Statistics, meaningless, decontextualized statistics? Why don’t you tell me how many people have signed up for the Fair Copyright facebook group. That’s about as good a measure of actual impact on copyright reform as the P2P numbers you quote.

    Put up or shut up, pirate boy. If you really think piracy is a justifiable moral response to the current copyright environment (and that really is what our argument is about, no matter how you try to constantly reframe it), then be an actual pirate — engage in actual, principled civil disobedience and openly hack and share Nintendo or Microsoft product. The gauntlet is thrown, pegleg. Get it done or forever live as a coward.

    oldguy — the incidental legal problems caused by the copying nature of digital technology are being solved, gradually, through ongoing copyright reform — that something is not immediately solved does not mean the process of solving it is not underway. I know this blog has a kneejerk, negative, anti-industry, anti-professional-creator response to the process, but it is ongoing and as far as I can tell it is neither evil nor duplicitous. It lives within the moral scaffolding of our established legal system and the very real needs of creators and industry.

    Mr. Sookman has today posted his recipe for reform, with lots of subtle understanding of consumer issues. Check it out here:

    http://bit.ly/dpgLZh

    Nuanced, respectful, conscious of real social changes and economic pressures. And not attempting to stir up righteous populist anger as a sheild against rebuttal. I look forward to a similar document from Dr. Geist — I’m sure it will contain his long-awaited defence of Hook’s position on piracy.

  37. Captain Hook says:

    winning the copyright wars
    Dude, you just don’t get it. It’s not about me and whether I martyr myself or not. Just like it’s not about the poor sod in Aurstralia who got caught filesharing games.

    And for the record, yes “piracy is a justifiable moral response to the current copyright environment” (not in all circumstances, but in many) I’m not reframing anything. You must be confusing me with oldguy. All I’m doing is explaining to you why this is, and what the necessary steps are to change it. Because you know what? There are a hell of a lot people who feel the same way.

    The scariest thing about all of this for you should be the fact that p2p file sharers have no shame. There is no real social stigma attached to p2p downloading. It is more acceptable to infringe copyright via p2p than it is to spit in public. Doesn’t that scare you?

    Your statement that “people will gladly take things when they are offered to them for free” is actually wrong. People are generally honest. Here is a link to one study done which found that 74% of people would return a wallet found on the street. The result of this survey is typical of other surveys I found on the web.

    http://www.arecentstudy.com/index.php/on-lost-wallet-honesty/

    Now compare that with p2p filesharers. Here is a Canadian study which found that 29% of the population had used p2p software to infringe copyright. This was way back in 2005 and that number is for the whole population not just those with Internet access.

    http://strategis.ic.gc.ca/epic/site/ippd-dppi.nsf/vwapj/IndustryCanadaPaperMay4_2007_en.pdf/$FILE/IndustryCanadaPaperMay4_2007_en.pdf

    Here is a more recent study done in Europe which found 77% of Internet users engaged in illegal filesharing.

    http://www.law.ed.ac.uk/ahrc/script-ed/vol5-1/hietanen.asp#sdendnote15sym

    Here is an article that says that even if threatened with disconnection 37% of p2p users would not stop.

    http://arstechnica.com/telecom/news/2009/01/37-of-p2p-users-say-theyll-ignore-disconnection-threats.ars

    The fact that there are so many honest people who obviously feel no shame in breaking the law should tell you that there is something very very wrong with the law.

    If we made a real effort to make the law fair and relevant to everybody I expect you would see these numbers reverse and 77% of people would NOT illegally file share, and there would then be some social stigma associated with copyright infringement. If this were to happen, the losses from piracy to the media industries would be low enough that the drastic measures they are now pressing for would be totally unnecessary.

    As it is, threatening people and pressing for these measures without any kind of meaningful reform will only make the problem worse. And no, nothing that is being done now counts in any way as meaningful reform.

    If you truly want to “declare peace” in the copyright wars as you’ve said before, then first you have to recognize who the enemy is. It’s not me, though I may be somewhat representative of them. It is the 100 million Internet users (or more) that happily use p2p every day. Then you have to make some concession to them. I’d like to see shorter copyright terms, more fair use, mandatory registrations, and no bans on TPM circumvention. But that’s just me. ;-)

    Unfortunately the powers that be are doing the opposite, trying to make terms longer, reducing fair use, and increasing TPM protection. Soon, I honestly fear, the whole stigma thing will do worse than be non-existant. The stigma will be applied to people who actually obey copyright law. When that happens you will know you’ve lost the war.

  38. ongoing where?
    “the incidental legal problems caused by the copying nature of digital technology are being solved, gradually, through ongoing copyright reform”

    This is something you continually refer to, yet I don’t see any reference to it anywhere. What I do see is ACTA leaks, and EU negotiation leaks. Neither of which come anywhere near the real issues.

    Can you supply *any* references? Pointers to more information, or that such discussions are even going on at the appropriate levels? Where?

  39. strunk&white says:

    oldguy, are you so blinded by conspiracy theory euphoria that you actually think ACTA treaty negotiators aren’t discussing all of this. Have you read the Conference Board report. It’s hefty, but it addresses all of this stuff. Do you think the Harper cabinet does not listen to Michael Geist and consider which parts of his theoretical research they choose to believe? What part of ongoing copyright reform has been unapparent to you in the last five years?

    Or is it just that no bill has been introduced answering your every desire for legislative change. Welcome to the real world.

  40. Captain Hook says:

    response held awaiting moderation
    response held awaiting moderation
    :-(

  41. conspiracy theory
    No, I don’t see conspiracies in every corner. But I do see the leaks from ACTA and the EU negotiations. Nothing even close to these issues in the leaks.

    Just what makes you think these topics *are* being discussed in ACTA? What evidence do you have?

    Do you have anything beyond blind faith that such discussions “must” be ongoing at the appropriate levels? Please point it out..

  42. Captain Copyright says:

    semantics
    oldguy, (and whitey too) you have to recognise when you are having an argument over semantics or you really wont get anywhere.

    When whitey talks about “working on incidental infringement” he is talking about coming up with new media licensing schemes so that you can continue to pay for your right to time and format shift. He is talking about google settling with author groups rather than fighting for their fair use rights. You know, the stuff that oldguy considers to be part of the problem rather than part of the solution.

    oldguy on the other hand is talking about real fair use rights that allow users to upload home videos to youtube without fear of reprisals, allow people to time and format shift their own media without having to pay again, allow people to actually control their own media equipment. You know, the stuff that whitey would consider disrespect for the author, and part of the problem.

    You guys are talking past each other rather than too each other. Just acknowledge that, and that you’ll never agree, and move on.

  43. Captain Hook says:

    Copyright==Hook
    Teh he, sorry folks that last post was me too. I was loged in on a different terminal and had a brain fart. Arrrrrrrr

  44. strunk&white says:

    just who is that masked man?
    did you get that oldguy? — the cowardly captain is now explaining your arguments as well as mine. I hope he’s useful to you, because everybody should be useful to somebody.

    Was it my imagination that our country had a nationwide copyright consultation during the summer. I got my submission in, and I wrote the whole thing all by myself. How about you?

    Other evidence that these issues are being discussed seriously at appropriate levels? I guess you might find some here:

    http://www.wipo.int/portal/index.html.en

    And I know not everyone here thinks Canada should ratify the WIPO agreements to which we are signatories but, as Dr. Geist points out in his own posting on the subject, the Conference Board does:

    “Canada should ratify the WIPO Internet Treaties and focus its energies on implementation choices that address legitimate stakeholder concerns.” — p.86

    Geist can be justly proud of himself (and clearly is) that he was consulted on this and seems to have influenced the research to accept some benign copyleft doctrine. On the other hand, I sure don’t see anything in that report that suggests we should all just accept illegal filesharing as a fact of life.

    All I’ve ever wanted was a little backpedalling from the ridiculous pose of populist rage. This is a good start.

  45. doc and info
    “the cowardly captain is now explaining your arguments as well as mine”

    Is his observation correct or not? Will you correct his observation of your position? He has done a 100% description of my position, but what he has got he got more less correct.

    Yes, I did send in my very own submission during the copyright consultation process. I was wondering if/when you would bring that up. But I haven’t seen anything come of it, no summary, no high level direction, nothing.

    I am still waiting for registration validation at the Conference Board to be able to obtain a copy of the recommendations. I suspect that since I am not a “paying business”, my application is delayed.

    Nothing I find in the WIPO documents indicates that these issues are even recognized, never mind being addressed or negotiated.

    So again, do you have anything other than blind faith?

    “a little backpedalling from the ridiculous pose of populist rage”

    I would have used the phrase “a little backpedalling from the populist rage” myself. I don’t see it as a pose, nor do I see it as ridiculous.

    Your wording of the phrase say a lot. You don’t see a real “problem”, you see a bunch of people that are “playing” or “acting”. The sooner you recognize that this is serious, the better for you and for the position you are taking. Take their issues seriously and you might start to understand them. Yeah, I know it can be tough to take the Hook seriously, but he has his moments.

  46. Captain Hook says:

    Shazam!
    Faster than a speeding bullet too. Damn, I knew I missed my life’s calling as a mediator. I should go see if there are any openings in the Middle East.

  47. strunk&white says:

    gawd, you’re thick, Hook, and cowardly. Just go away. You have no idea what we’re talking about.

    Let me think about it, oldguy…. nope, it’s a pose. And if it weren’t, it wouldn’t be so easy for y’all to backpedal from it. Read the report, in full. You definitely won’t like all of it, but it’s a document written for grown-ups. That should be a refreshing change from what you’re used to around here.

  48. Captain Hook says:

    futile arguments.
    “Let me think about it, oldguy…. nope, it’s a pose.”

    Which is exactly why it is impossible to have a serious conversation about copyright with old whitey here.

    oldguy you’re not getting anywhere with somebody who wont take your concerns seriously. I’m pretty sure I know exactly where whitey stands on most of these issues. He will not budge on anything like fair use, or DRM. From his perspective all of copyrights ills can be resolved with some form of licensing. Giving any ground on fair use or DRM would be disrespecting authors and “the work”.

    The one issue I don’t really have a bead on for him yet, is where he stands on extending copyright terms. would he support Canada following the US and EU to a LIFE+70 term? I strongly suspect he would, but I have not seen much indication from him either way.

    Enjoy your conversation with him. Hopefully it will be edifying for you, if you can cut through his rhetoric. But don’t get any idea that he will come away with any deeper understanding of your position. He wont. He can’t if he doesn’t take you seriously. He has no interest in that. I think he just likes to pick fights, and he doesn’t want to see any of the spilled blood on his blog, so he comes here instead.

    If I’m wrong in any of this whitey, tell me where I’m wrong. rather than just saying I’m thick. oldguy seems to think I hit it pretty close. So have I?

  49. strunk&white says:

    I’ll see your “pretty sure” and raise you a certainty
    Hook, define “the work.”

    No wait, I forgot, you don’t do things. You just talk about doing things. When presented with the opportunity to back up your words, you slink away in fear.

    oldguy — you really don’t need to look any further than your ridiculous pirate partner to see what I mean when I talk about the pose of populist rage. What could be more posed that a fake pirate who screams and yars and yet does nothing to legitimize the cause of piracy. At the very least, real populism should be spelled correctly. Don’t you think?

    But if you want to look further, examine Geist’s populist flag-waving against WIPO, which was apparently so destructive to the opportunity of made-in-Canada copyright. He now admits it is not.

    Look at Geist’s horse-riding and lantern-waving over C-60, the predecessor to C-61. Now C-60 looks pretty good to him — why, because all the professional artists and copyright holders he alienated with his antics are suddenly a liability to his cause, and things could get far worse.

    The conspiracy theories, innuendo about improper influence, anti-Americanism, anti-corporatism, public slapdowns of politicians and research groups… I’m sure it’s all very satisfying to everyone’s ego over here, but in my opinion it is needlessly destructive to the spirit of consensus building. I want solutions, not flag-waving and finger-pointing.

    The thing about fingers, is that they can be pointed at anyone. He gets no respect over here, but I regularly read Sookman, and his analysis of Geist can be devastating. Have you ever read any of this stuff?

    http://www.barrysookman.com/2010/02/02/a-reply-to-acta-critics/

    or how about when others dig into Geist the way he digs into anyone he wants to intimidate:

    http://viigo.im/2oPg

    This is the pose I’m talking about. I’ve tried various ways to see behind it and get at the real issues, but it just doesn’t seem to me that the real issues are “job #1″ around here.

  50. filesharing=share the love says:

    we are filesharers NOT pirates
    I download more files than a bull could SH*T,if there is no price tag on it and no way to pay legally anyway,then it must be free.Oh i also spend more money on legit content every year than all of my non-filesharing friends combined!.Wake up ya dick heads,if they won’t supply the product the customer wants in the digital age,then fuckem!.We will find our own way to source it,if the industry won’t evolve,they have signed their own death warrant!.

    SUCK IT FACT!

  51. “Let me think about it, oldguy…. nope, it’s a pose.”

    That about says it all.. If you don’t take the issues seriously, it’s impossible for you to understand. And nobody will take you seriously either. With that cleared up, your participation is relegated to simply flamebait.

    Please note that I have asked you quite a few questions in this thread. You haven’t answered any of them. You simply continue to attack, as though you can somehow beat me down. I am not in partnership with the Hook, and innuendos to that effect simply further distance me from taking anything you have to say seriously.

    Like the Hook has already stated, I am not at all sure what your position actually is. The fact that his observation of my position is fairly accurate means he is taking me somewhat seriously, and that I have been fairly clear in stating where I am coming from. If he can get it, you should be able to do so as well.

    I now have the CBoC report. It is quite a change from the previous report. Shorter on recommendations and much longer on questions. They are moving the right direction, even if they haven’t accepted the reality yet. I wouldn’t call it any more “adult” than what I see discussed here and elsewhere. Just more of an academic phrasing. You can still see the underlying bias, and much of their data is out of date. They do clarify the difference between copyright, patent, and trademark, but they go on to use data from one area to justify a position in another. Or perhaps they have flipped their discussion target without stated that they are now talking about a different area of “IP”, it’s hard to be sure in some areas. It would have been much simpler to follow (and write), if they would have separated these areas totally, with separate recommendations and questions in each area.

    For the most part, there is nothing new to me, except perhaps the observation (my paraphrase) that the “proper balance” should be a balance between “the incentive to innovate and the incentive to disseminate”. It’s a nice catchphrase that captures a bit of the essence of where I things should be targeted.

    There is one more interesting observation, that I am surprised to see in this document. A protected work/idea that isn’t actively being used or disseminated, no longer contributes to innovation. If this point was addressed in law, it would be an excellent step towards clearing up part of the mess we are in right now.

  52. strunk&white says:

    flamebait
    For someone not in partnership with Hook, you use remarkably similar language and debating styles. I disagree, therefore I “simply don’t understand.” I refuse to be convinced by weak arguments, therefore I “don’t take you seriously.”

    If you don’t want to observe the banal necessities behind the revolutionary pose, so be it. But you can’t say they weren’t pointed out to you.

    You will, but you shouldn’t. Which pretty much also describes your whole position on copyright.

    Be sure and write the CBoC a long letter about how they are heading in the right direction but still have not come to grips with the new reality. And keep up the good fight. Your cause is pure. With the current state of the world, what could possibly be more important than formalizing format shifting and making sure your grandkids get free music?

  53. strunk&white says:

    what am I supposed to take seriously?
    “if there is no price tag on it and no way to pay legally anyway,then it must be free…”

    “… if they won’t supply the product the customer wants in the digital age,then fuckem!”

    It’s simple — distance yourself from this kind of attitude and lots more people will listen to your other lectures (not so much me, because I have grown tired of pedantry) about digital evolution.

  54. Captain Hook says:

    What am I suppose to take seriously? (reprised)
    “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone” – Jack Valenti

    “Copyright should be forever minus a day,” — Sonny Bono

    “We know from America’s noble effort to stop child pornography, not to mention China’s ignoble effort to suppress online dissent, that it’s perfectly possible to track content,” – Bono

    It’s simple — distance yourself from this kind of attitude and lots more people will listen to your other lectures (not so much me, because I have grown tired of pedantry) about digital evolution.

  55. strunk&white says:

    the difference being
    … I have already come to terms with my nuanced disagreements around the first two statements, many times, while you (both) keep hiding behind your childish complaints about debating style to avoid disavowing radicalism. So you pull two years-old comments by two dead guys out of context — two comments no-one in the discussion stands behind anymore — and set them in opposition to the dude who just commented on this thread yesterday. What you think is wrong with the Bono statement I can’t even imagine. Is this a technicaal disagreement. Do you think it’s NOT possible to track content? Care to back up that belief by pirting something from Nintendo… oh, yeah, the whole coward thing…

    Seriously, Hook, I know you think you’re unbelievably clever when you do stuff like that “reprisal,” but you are just showing again and again how ignorant and completely unoriginal you are. By all means keep it up, because the more you talk about copyright, the more people will yearn for an intelligent alternative.

    So, does copyright last forever minus a day? Was the VCR outlawed, or did the consuming public suffer horribly under the evil corporate boot of the VCR-makers? Not so much.

    And is an entire generation being trained to not even consider the actual value of intellectual property (hey, did you notice how completely IP was defined as a property right in the Conference Board document that Dr. Geist helped create? Me too). Well, you’re trying.

  56. strunk&white says:

    pirated — I meant pirated
    … how I hate typos. Also technical, one “a”.

  57. “We know from America’s noble effort to stop child pornography, not to mention China’s ignoble effort to suppress online dissent, that it’s perfectly possible to track content,” – Bono

    And there speaks someone that knows absolutely nothing about technology. An analogy might be this statement:
    “We know it is perfectly possible to block access to a phone number, so it’s also perfectly possible to block certain words from being said over the telephone.”

    There is a world of difference between these requirements. The capability to do the first does not equate to the capability to doing the second. The ISPs and the media conglomerates now realize this, which is why they are pushing for a carte blanche to exercise the first capability.

    If Bono knew anything at all about the technology behind the “effort to stop child pornography” and the “effort to suppress online dissent”, he would know these equate to simply blocking access to a phone number. A long way from content monitoring, especially with fully encrypted connections.

  58. flamebait
    “Let me think about it, oldguy…. nope, it’s a pose.”

    Remember, you said it, I didn’t.

    “You will, but you shouldn’t. Which pretty much also describes your whole position on copyright.”

    Wrong. Which logically follows from the above. You don’t take it seriously, so you don’t pay attention, so you don’t get it right.

  59. strunk&white says:

    the geek gambit
    What is it exactly I’m supposed to be ashamed about in that statement of mine you keep quoting? I still believe it’s a pose, and I explained my position on that in my very next comment. Sheesh, you guys and your pathetic “gotcha” moments. Are you sure you and Hook aren’t the same person? “Wrong,” is at about his level of rebuttal.

    Bono doesn’t know fully encrypted connections therefore his opinion on the rights of creators must be off base. I’ve heard this line before. You don’t like the potential bad effects of DRM, so instead of creating or even imagining a system that would do the good (limited creator control — what the CBoC might call the “incentive to create”) without allowing the bad such as unintended trespass on fair dealing (still a debatable point, btw) we just get a blanket call for no DRM. Because “if we understood the technology” we’d know there’s only one way. Bull whacky — there’s only one way because politically you only want one way.

    I don’t want anyone to feel restricted in their fair dealings, but I doubt any government will allow the incentive to create to be completely debased by a bunch of technobafflers claiming there’s only one way. You may think you have some god ideas, but ain’t no-one going to listen to them while you stand on that side of the piracy line. No-one in power at least.

  60. Captain Hook says:

    you’re both off base
    “You don’t like the potential bad effects of DRM, so instead of creating or even imagining a system that would do the good without allowing the bad such as unintended trespass on fair dealing we just get a blanket call for no DRM.”

    Gosh your right whitey. How silly of me. Why don’t you help me image a solution for those problems. After that I’ll show you my really great perpetual motion machine. I haven’t quite got all the bugs worked out yet. Perhaps you could help me imagine a solution them too. Really. I mean the third law of thermodynamics is really just a political excuse created by the oil companies so that we couldn’t all enjoy free energy.

    Nobody wants to completely debase copyright, but we want solutions that are realistic and fair. If the government wont listen to them, then the “technobafflers” will make their own solutions which unfortunately will be contrary to existing government policy. Too bad for them.

  61. Winded and futile
    Why does everyone here entertain this strunken&white person? (rhetorical question)

    You obviously know by now strunken&white only respects strunken&white’s opinion. Before the New Year, I saw a lot of winded attempts to convince strunken&white of Copyright Law’s fair dealing inclusions; however, strunken&white insists Copyright Law is meant for “authors/creators” and nobody else. Nothing has changed since, including more winded and futile attempts.

    This is funny because if you all just ignore strunken&white, this narcissist will just disappear, forgotten. But no, you keep feeding this narcissist, who won’t provide any realistic evidence for this narcissist’s position, except the one mindset that copyright should last an eternity and “authors/creators” must have all authority including the powers of the police, judge, jury, and executioner – not to mention all filesharers are immoral scums of the earth. This reminds me of the oil baron who posted his $10000 piece in the papers trying to debunk global warming, when he does Zero science.

    “Shoot a valuable pearl at a sparrow overhead, and the world will laugh at you [oil baron]!” proverb, I think.

    Ah yes, quotations on “authors/creators”, it simply means this narcissist doesn’t believe in authors and creators anyway. Draw your own conclusions from here because the real theft is stealing rights from authors and creators in contracts, not some infringing Uploads. (Please don’t confuse Download with Upload, like our news media for their own agenda.)

  62. flamebait
    Ah, but you don’t want a rebuttal. I’m not really sure what you want, perhaps to bait people into a flame war. You are welcome to correct that impression of course. You might start by answering the questions I asked earlier in this thread.

    And now my rebuttal of the only real point in your last posting.

    Bono is espousing a line that implies it is easy or doable with current technology. Read his words in context. He is advocating a “solution” that will solve nothing.

    You are doing no better in this sense:
    “a bunch of technobafflers claiming there’s only one way.”

    No, I’m saying that the way Bono (and you) are advocating simply will not work. Same with DRM and TPM. Those “technobafflers” you hold in disdain will be hardly be impacted by DRM, and what they do will be duplicated over and over again via sharing knowledge and information. It is an ineffectual attempt to address the wrong problem, that causes far more problems for the average person who attempts to obey the law than those that disregard it. So it will happen openly and widely regardless of legality, effectively turning everyone into a criminal.

    The answer doesn’t lie in better technical measures or increased enforcement. Look for the root cause, the disrespect that those masses seem to have for today’s copyright law. Why. What has changed. What behaviour, values, or environment has changed to bring about that disrespect. Take their views seriously. Understand them.

    The world has changed in the last 25 years. Historical “tried and true” ways just cannot work anymore.

    ..

    “but I doubt any government will allow the incentive to create to be completely debased by a bunch of technobafflers”

    Personally, I would leave understanding of workable technical solutions to the techies, interpreting law to the judges, and government to the people. Our system has built in ways to update and change laws that no longer fit the needs of the people…

  63. Winded and futile
    Thanks Tom. Your point is taken..

    I have tried to give our lawyerly titled participant the benefit of the doubt, obviously too many times.

  64. strunk&white says:

    do you ever read? anything?
    Strunk & White is not a law firm. It is a reference to the writing manual The Elements of Style, by William Strunk, Jr. and E. B. White. You should try and find a pirated copy of it somewhere and claim your portion of the cultural commons. Fast. Lord knows you need it.

    And while you’re at it, you should compare notes with Hook because he actually is saying that fair-dealing enabled DRM is as impossible as a perpetual motion machine. So, oldguy, because there will always be pirates we should remove all barriers around our property? How about thinking of fair-dealing enabled DRM as a “Please Respect My Property” sign?

    Which question are you waiting for an answer on? Wait, before you ask again, maybe you and Tom could show me where I’ve indicated I am against fair dealing, or that I want perpetual copyright (get Hook in on that search as well). Copyright for authors and creators only? I have pointed to the Universal Declaration of Human Rights many times — copyright is for everyone. The CBoC understands that. I’m guessing Geist understands that. Why no-one can convince you geniuses of it is beyond me.

  65. strunk&white says:

    oh yeah, and…
    I’ve been doing some reading (radical concept, I know) around soccer match-fixing and organized crime. Some fascinating literature out there. Anyway, in Declan Hill’s The Fix, I came across a tangential description of pirated movie stalls in an Asian market. Various stalls had been burnt to the ground. Seems the mafia controlling film piracy doesn’t much like independent competition.

    So, I looked around the Internet and came up with this report:

    “Abstract
    This report argues that buying and selling pirated films is not a victimless crime. Because profits are huge, the cost of entry minimal, and the risks relatively low, organized-crime groups worldwide use counterfeiting to fund serious criminal activities. Three case studies offer evidence that terrorist groups have also supported their operations through film piracy. Stronger measures are recommended to combat a problem that threatens the global information economy, public safety, and national security.”

    http://www.rand.org/pubs/research_briefs/RB9417/index1.html

    If this line of reserach pans out, I’m going to have to congratulate you on your prohibition analogy, oldguy. It looks like the comparison might be very accurate — though not in the way you intended. Of course, I did mention Al Capone before, but no-one wanted to hear about him.

  66. Captain Hook says:

    Holy irrelevance Batman
    whitey, I must say it is absolutely fascinating to try to figure out how your mind works. Likely an impossible task, but a fascinating exercise none the less.

    I’m sure it would surprise you to learn that there is nothing inconsistent with this report you dug up and what oldguy and I have been advocating all along. There is a world of difference between selling pirated DVDs and supporting filesharing (me) or not supporting DRM (both of us).

    Frankly I am in total agreement with you that “selling pirated films is not a victimless crime”, and anyone that does so should bare the full weight of the law. Does that make you happy?

    The funny thing is that we are days into this thread and yet you think this has some relivance to what we’ve been talking about.

    Amazing!

  67. strunk&white says:

    keep the law’s clothes on, please
    I think you mean “bear” the full weight of the law. It might be a typo, but I doubt it.

    Let me help you with your confusion. Here’s how my mind works. I get involved in a line of inquiry, such as “is there a moral justification for Internet piracy,” and I try to gather as much information as possible about it, to be well-informed and not come across as a buffoon masquerading as an expert on something I know very little about — for an example of that kind of thing, check out the first commenter on this thread over at Sookman’s blog.

    http://www.barrysookman.com/2010/02/12/digital-copying-and-libraries-copyright-and-licensing-considerations/#comments

    How embarrassing. You’d think the guy would either read about the law, or admit upfront how little he knows on the subject.

    Anyway, that’s a satisfying tangent but a tangent nonetheless — my point is it is probably enlightening to some to realize that along the moral spectrum between respecting copyright (however inconvenient) while attempting to help it into the digital age, and just flat out supporting illegal filesharing as a practice, there also exist organized crime syndicates who use piracy profits to fund far more dangerous criminal activity. Now, for extra credit, guess whose position is closer to the organized criminals on that spectrum, yours or mine?

    Are you telling me you don’t think the movie files you and other teenagers torrent could not possibly have come from mobbed up DVDs? How naive are you, exactly? — give me a measurement I can work with.

    But why talk about morality — morality is relative, no?

  68. Captain Hook says:

    guilt by association?
    Fine. I’ve been busted by the grammar police. At least they don’t have as much power as the copyright police…. yet.

    Definitely a tangent. I’d be happy to come over to your place and explain things to you some time. I notice you’ve made some changes there quite recently. When I get a chance I’ll pop by and make a contribution myself.

    “Are you telling me you don’t think the movie files you and other teenagers torrent could not possibly have come from mobbed up DVDs? How naive are you, exactly? — give me a measurement I can work with.”

    Not nearly as much as you apparently. Would you like to enlighten me as to exactly how organized crime profits from individuals who share files over the Net. If anything, torrenting movies would reduce the market for pirated DVDs as it would give people a free alternative to the flea market stalls you are complaining about.

    “there also exist organized crime syndicates who use piracy profits to fund far more dangerous criminal activity. Now, for extra credit, guess whose position is closer to the organized criminals on that spectrum, yours or mine?”

    This is a total red herring, but since you bring it up, the answer is — yours! At least in terms of what helps organized crime profit. You want to reinforce copyright monopolies, allowing rights holders to better maximize the revenue from their monopolies. This means prices will be higher and will create a better market for crime. Go ahead and ask anyone who sells DVDs for a living if they’d actually like to see the abolishment of copyright or even anything close to it. No way. They want strong copyright laws just like you.

    But like I said it is a red herring because you have yet to demonstrate exactly how any organized crime benefits from file sharing.

    This is another one of your poor attempts at guilt by association. Pitiful.

  69. strunk&white says:

    demonstration
    Hook buys pirated DVD from street merchant. Hook uploads pirated un-DRMed movie from DVD to Internet to share with his one million closest friends. Organized crime pockets Hook’s money and uses it to kill puppies or something equally horrible.

    Multiply by amount of uploading to illegal filesharing sites.

    Voila.

    Look, Hook, if you don’t feel guilty about what you advocate, how could there be guilt by association? I’m saying, clearly, piracy’s methods and ethics puts you in bed with organized crime on the moral spectrum by which we run our society. It’s your choice how you feel about that.

    Look back through this and other threads. My argument all along has been about the morality of piracy. Where the file comes from is a moral issue, like it or not.

    Red Herring! Red Herring! Do you know any other rhetoric catch-phrases?

  70. Captain Hook says:

    dumbest demonstration ever
    Now I know you’re nuts. Sure buying the pirated DVD helps crime. But what the heck does that have to do with file sharing? I could just as easily upload a legit DVD. The data on the P2P network would be identical but there would be no gain for crime. These are two completely unrelated acts.

    How about this then. I can buy contraband cigarettes from a criminal too. I can then proceed to share those cigarettes with my friends. Using your logic, therefore sharing cigarettes helps organized crime.

    Give your head a shake and see if you can actually come up with something meaningful.

  71. strunk&white says:

    Okay wait,
    let me see if I’ve figured out how arguments happen over here. My next move should be… No, you give YOUR head a shake!

    Yeah, that’s the ticket.

    I repeat… look, Hook, you don’t have to feel guilty about your complicity in criminal behaviour. I wish you would, since I wish that for all criminals, but I’m used to the disappointment. Just stop trying to pretend you are not complicit. Smuggling smokes is a crime, and yes, anyone sharing in the spoils of crime is complicit in the crime, even if they are unaware of their complicity, or just in deep denial.

    Now, should the punishment be the same for the sharing smoker as it is for the dude with a trunkful of cartons?

    By the way, thanks for using a physical property analogy — I think the moral issue is a lot like those surrounding physical property as well — see, common ground.

    Anyway, I don’t think the punishments should be the same… BUT the difference in severity of penalties has no bearing (not baring) on the moral issue. Illicit, illegal filesharing is teaching a generation that as long as it is unlikely they will be caught, complicity in criminal behaviour — real, actual criminality — is okay. Look at the chart in that study I referenced… contract killing is one of the categories.

    You guys lecture the world about the big bad corporations and their lobbyists, while glossing over your own “corporate” complicity. Hypocrites.

    Could you upload and fileshare a “legit DVD”? Well, of course, but not legally. The step you take to ignore the copyright notice on that legit DVD, or the step you take to break whatever DRM is trying to stop you from sending endless copies of it around the world for free is the same amoral step organized criminals take in their business model. That step is called willfully breaking the law. You say the law is bad, so we SHOULD break it. Guess what, so does the mafia.

    Give my head a shake? That’s all I do when I read your comments.

  72. Captain Hook says:

    Boy you really can twist arguments. It must be really uncomfortable when you have to twist the words around to such an extent in order to make such a poor argument.

    We were talking about fileshareing right?

    You brought the mafia in as though filesharing somehow supported organized crime.

    You tried to back up this claim by saying that if I bought a DVD from organized crime then shared it, that would mean that filesharing supports organized crime.

    Using this example in the cigarette analogy would then be to say that that ALL cigarette sharing supports organized crime. Not just those bought from criminals.

    Now getting back to to file sharing. I have never purchased a pirate DVD. I’ve never actually ripped and shared any DVD for that matter. I certainly have downloaded a few though. Now pleeeeeeeese explain to me how this behaviour supports organized crime.

  73. strunk&white says:

    any way you slice it
    Hook, you deceive no-one but yourself. If you can’t see my argument in what I’ve already written you are more ignorant than even I believe you to be, and that’s some ignorant already. YOU made the leap from specific case to general — I’ve been careful always to talk about illegal filesharing, so don’t try to catch me in your own web of rationalizations.

    But keep talking because I LOVE hearing how the big bad pirate captain doesn’t actually pirate things himself. I know you chickened out of the Australia dare, but this is better by far. Please, laws that I don’t respect, please don’t prosecute me… all I ever did was download. I’m not one of those criminal uploaders I defend but disavow as soon as the heat is on.

    And for those bored of Hook’s backpedaling — here is a great write-up that just about covers all I have to say myself about illegal file “sharing.” I start with a quote:

    “The Internet has done much to facilitate the dissemination of information – for which it deserves great praise. At the same time, however, it has revealed the incredible human capacity for rationalization.” — Peter S. Menell, Professor of Law, University of California-Berkeley School of Law

    … and the rest: http://bit.ly/baKSyw

  74. Captain Hook says:

    I give up.
    Ummm, excuse me. You are the one that “made the leap from specific case to general” by comparing mafia film piracy to oldguy’s prohibition analogy regarding filesharing.

    Frankly this whole line of discussion is getting quite tiring. A brick wall would be more capable of seeing other perspectives than you are so there is little point. As oldguy and tom said, you really are nothing more than a flamebaiter. I notice he has dropped out of the conversation.

    It is truly unfortunate that our legislators take their advice on copyright reform from your peer group. We will have a far worse copyright system as a result. Creators as well as users will suffer as a result.

    It is fortunate that through technology, I at least have the ability to mitigate the negative personal effects of this wrongheadedness. It is far from my ideal solution though. C’est la vie.

  75. strunk&white says:

    thickness at the core
    Take your ball and go home. When you lose, it must always be because the other guy cheated or played in bad faith. At least your final say is age appropriate to your argument.