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Ficsor Attacks: WIPO Treaty Architect Still Fighting Lost Policy Battle

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Tuesday December 22, 2009

CRIA lobbyist Barry Sookman's blog is home this week to a guest post from Mihály Ficsor, a well-known international copyright author who is the former Assistant Director General of WIPO.  Ficsor is closely associated with the creation of the WIPO Internet treaties and today works with the International Intellectual Property Alliance, the leading U.S. copyright lobby representing the RIAA, MPAA, BSA, and other groups.  Unlike Bruce Lehman, another leading creator of the WIPO Internet treaties who has acknowledged that they (along with the resulting DMCA) have been a policy failure, Ficsor remains determined to fight for his baby. 

The post is filled with remarkable vitriol toward those arguing for balanced copyright, with Ficsor warning of "free access revolutionaries" and against Canada becoming "an isolated hostage and victim of demagogue campaigns organized in the hatred-driven style of Maoist Guards as during that other brilliant 'cultural revolution.'"  Most reasonable readers will likely dismiss the post on that basis alone.  For those willing to look beyond it, however, the key question is whether the WIPO Internet treaties requires a prohibition on the distribution and manufacture of circumvention devices.  Ficsor argues that they do, stating:

The allegation that the two Treaties do not require protection against the manufacture and distribution of unauthorized circumvention devices is completely groundless. The negotiation history of the Treaties clearly indicates that, although their anti-circumvention provisions finally used a more general language, they had been based on proposals extending to the prohibition of such activities.

While it is true that the initial U.S. proposals (which led to the WIPO Committee proposed language) targeted circumvention devices, the negotiation history actually shows that there was not consensus support for this language. 

The original draft submitted to the Diplomatic Conference in 1996 stated:

(1) Contracting Parties shall make unlawful the importation, manufacture or distribution of protection-defeating devices, or the offer or performance of any service having the same effect, by any person knowing or having reasonable grounds to know that the device or service will be used for, or in the course of, the exercise of rights provided under this Treaty that is not authorized by the rightholder or the law.

(2) Contracting Parties shall provide for appropriate and effective remedies against the unlawful acts referred to in paragraph (1).

This language - which Ficsor would have us believe is what was adopted in spirit if not in fact - did not achieve consensus support with many proposed changes.  A compromise position was ultimately reached using the "to provide adequate legal protection and effective legal remedies" standard.  Not only does this language not explicitly require a ban on the distribution or manufacture of circumvention devices, it is quite obvious that the intent of the negotiating parties was to provide flexiblity to avoid such an outcome.

U.S. law professor Pam Samuelson chronicles precisely what happened in her 1997 law review article, The U.S. Digital Agenda at the World Intellectual Property Organization:

At the diplomatic conference, there was little support for the Committee's proposed language on circumvention technologies. Some countries opposed inclusion of any anti-circumvention provision in the treaty.  Others proposed a "sole purpose" or "sole intended purpose" standard for regulating circumvention technologies. Some wanted an explicit statement that carved out circumvention for fair use and public domain materials.  The E.U. offered a proposal that would have required contracting parties to adopt adequate and effective legal measures to regulate devices and services intended for technology-defeating purposes.

Facing the prospect of little support for its proposal or the Committee's draft anti-circumvention provision, the U.S. delegation was in the uncomfortable position of trying to find a national delegation to introduce a compromise provision brokered by U.S. industry groups that would simply have required contracting parties to have adequate and effective legal protection against circumvention technologies and services.  In the end, such a delegation was found, and the final treaty embodied this sort of provision as Article 11.

This was, of course, a far cry from the provision that the U.S. had initially promoted. Still, it was an accomplishment to get any provision in the final treaty on this issue. The inclusion of terms like "adequate" and "effective" protection in the treaty will mean that U.S. firms will be able to challenge national regulations that they deem deficient.

The reality is that Ficsor lost the policy fight in 1996 to create an explicit ban on the distribution of circumvention devices.  He has been fighting that fight ever since, arguing as he does in the blog post (and in his book) that a ban is necessary.  In joining up with the RIAA, MPAA, and other copyright lobby groups, he has had some successess along the way.  But no amount of name calling or bullying will alter the fact that Canada can be compliant with the WIPO Internet treaties without implementing the version of the treaty that Ficsor wanted but failed to get.
Comments (41)add comment

Natt said:

Ban
I wish they'd really ban any device capable of circumventing DRM. Say bye bye to the home computer, and black marker pens. Say bye bye to DVDs themselves as they contain the decryption key in themselves, and that surely allows you to circumvent their DRM! Indeed, the whole internet would have to be shut down.

But I see the Sookman / Ficsor argument - that they characterize us as anti-copyright loonies, but they're far from the truth. I'm a software developer that depends on copyright and I invent things that get patent protection. I'm no copyright loonie. However, I use copyrighted materials, and pay for copyrighted materials, and I need protection against privacy invading DRM, and DRM that makes computers vulnerable to virus attacks and other such stupidly draconian measures. I pay good money to import DVDs from abroad and I watch and enjoy them, but the heavy DRM approach would make that act practically illegal.

We all enjoy a full and robust public domain, but that would be decimated with ever-present DRM, if the ever increasing copyright lengths ever allow much more to become public domain.

But all Sookman and Ficsor seem to address are straw men versions of the comments on this forum and the comments of Michael himself.
December 22, 2009

crade said:

...
I left a polite comment on his blog. I hope it is not censored!
December 22, 2009

Dwight Williams said:

As would I, were I to do so.
That "Maoist guards" comment doesn't give me much hope, though.
December 22, 2009

Anon-K said:

@Natt
Well put. Bans on DRM crackers is an end-run around the concept of Public Domain. Unfortunately the concept can be compared to attempting to ban Torrents; the effort is put into banning a technology that is misused for infringing activity, rather than addressing the infringing activity itself. Basically punish everyone for the actions of a few. Not unlike if someone were to push to have cars eliminated because they can be, and have been, used to intentionally run someone down.

A ban on DRM crackers means that, once something you own enters the PD, you are unable to remove the DRM; the publisher still controls it even though they don't have the legal right to do so.

In a sense I can see what they are after... getting around any and all consumer rights. Publish something with a phone-home style DRM. Shut down the license server and make them buy (although it is better described as a one-time rental fee) the item again to renew the license under a new scheme.

Oh, sure it may be couched in words to the effect of preventing commercial infringement, but simply banning DRM crackers to deal with that issue is not unlike using a shotgun to kill a fly; major overkill (assuming you actually hit it) with lots of collateral damage.
December 22, 2009

Devonavar said:

Political dishonesty
I am cross-posting this response to Dr. Ficsor's post here, since comments on Barry Sookeman's blog are moderated and I suspect my response will disappear into the void otherwise. This should be a good test to see how receptive to criticism Barry is...

Dr. Ficsor writes like a lawyer — this piece is so laden with esoteric knowledge of particular niches of law that I understand very little of it.

However, one thing leaps out at me: His “WHHHHAT?” reaction to “discovering” the existence of Michael Geist’s blog rings quite false.

I can only react with incredulousness that the former Assistant Director General of WIPO has not heard of Dr. Geist before now. Dr. Geist may not be widely accepted in the powerful circles that Dr. Ficsor travels in, but he is a focal point for WIPO dissent and has been for some time. His writing is followed not just locally in Canada, but internationally, and he has written several times for European news sources (such as the BBC). I do not believe that WIPO is so out of touch that it does not know who its enemies are. Pretending he has no idea who Dr. Geist is is highly disingenuous, clearly politically motivated, and bad for Dr. Ficsor’s credibility.

The extremely overwrought “shock” at discovering that people (such as Dr. Geist) actually have the temerity to disagree with some of the WIPO policies doesn’t help either.

So, although I cannot understand the bulk of what is said here, I can see very clearly that it is politically motivated. Therefore, why should I bother to understand it?

While my personal opinions fall closer to Dr. Geist’s than Dr. Ficsor’s, I really do want to gain a full understanding of *both* sides of this debate. Understanding is essential to resolve it. Why is it so hard to find good (meaning honest) writing on the so-called “pro-copyright” side of the fence?
December 22, 2009

crade said:

...
@Dwight & Devonavar
my comment from a few hours ago hasn't yet passed their rigorous inspection process, but I am sure it will soon. One who accuses others of being "Maoist guard"-like surely would never censor alternate viewpoints. Why, that would almost border on hypocrisy! I'm sure your comment will certainly be posted as well.
December 22, 2009

Anon-K said:

Too much "opinion"...
over the past few years has begun to migrate to the use of character assassination rather than refuting the arguments; this occurs on both sides of the political spectrum. Left-leaning loonies, Neo-Con rednecks, etc. Its like watching an old episode of the Jerry Springer show (minus the chair throwing) at times.

Devonavar: you are correct, it is difficult to get a decent write up of the concerns of the "pro-copyright" lobby (a writeup that doesn't attack them simply for existing). While this blog is better than many, I have found that Dr Geist occasionally appears to fall into the "anti-copyright" category (at least his comments come across that way to me, it may simply be my reading of them), in particular in areas where proposed changes to copyright laws would negatively affect the operation of academic institutions.
December 22, 2009

crade said:

...
While Dr. Geist certainly comes across as against the direction they have been trying to take copyright legislation, I wouldn't say any of his comments come off as anti-copyright. I don't see the stance of not wanting the copyright legistislation they are pushing as radical or "anti-copyright" in any way. If anything, Dr. Geists radical opinion has only been that the proposed changes are not good for us.

I do agree that he could be more careful about his language, it is easy to get frustrated and your arguments lose credibility when you go get defensive or go all "Jerry Springer" but I think at least tries to be relatively fair despite obviously having strong opinions.
December 22, 2009

oldguy said:

Canada Research Chair in Internet and E-commerce Law

Note the word "Research" in his title. As any scientific researcher will tell you, you don't need to do any research if you already know the answers. But the information and knowledge you gain through this process will point certain directions. And you will gather facts.
If you look at Michael's areas of expertise, and his awards, you will see that it is primarily sociological and legal. His articles are written in plain language, his audience is general society. This is part of his research if you will. Getting the pulse of the digital society.

If you contrast how Michael writes, with the article by Mihály Ficsor, you will see the contrast between someone that hides behind the obtuse jargon of their profession vs the language of someone that knows his subject so well they can put it in plain language for everyone. The difference between someone that thinks they already have the answers, and someone that is looking for the right ones. The authority figure vs the researcher. The lecturer vs the observer.

*

So here's a hint for Barry Sookman, Mihály Ficsor, CRIA, RIAA, MPAA, BSA, and any others. If you want to influence these discussions, you have to take part in them. Take part in the digital society. Present your arguments in plain words, discuss the pros and cons of *everything* you are proposing. And then listen and observe. Don't discount anybody, get the pulse. Do some unbiased "research".

Just like any other science, if the experimental results don't match your theory, then you need to modify your theory. Don't moderate the postings on any basis except foul language. Don't discard the results because they don't match your bias. Perhaps you don't really know as much as you think you do.

I can easily retreat behind jargon as well, but then my message would be lost on you. You wouldn't have the background to understand it. From my background and expertise, I might be considered a small time "authority" in technology and psychology and perhaps even sociology. I know the jargon. I can tell you that things are changing, your proposed laws won't work. But you probably don't believe me.

So sit down and buy a beer for the geek that fixes your computer, the admin that runs your servers, the teenagers that spend hours on facebook, shoot the breeze, and listen - don't talk. They will have a much better idea of the "pulse" of the evolving society than you do. The technology. The psychology. The interactions of a society.
Come out of your ivory tower, and observe. You might be smart and educated. I qualify for the Triple Nine Society and am also educated. I'm an observer and realist. I know I don't always have the "right" answers, but I recognize ones that are patently wrong pretty quickly.

December 22, 2009

Anonymous Coward said:

Copywrong
The control freaks sure are getting testy these days. I wish them all the best in the coming future. Maybe after they stamp out copyright infringement they can figure out how to render jaywalking obsolete. Good luck!
December 22, 2009

anon said:

...
They don't get paid by any anti-jaywalking .....yet
December 23, 2009

Laurel L. Russwurm said:

It's hard to

@oldguy very nice effort, although I suspect they are incapable of listening to any other point of view. But worth a try, just in case.

Part of the problem is that most of the general public does not realize what DRM actually is. I've written a DRM post from a consumer point of view in my public service blog: http://stopusagebasedbilling.w...rm-is-bad/ Since I am not myself a techie, it probably won't have much new for the "free access revolutionaries" but it may help a few other non-tech folks become aware of the problem before the anti-circumvention laws are a done deal and people start going to jail...



December 23, 2009

Devonavar said:

Maoism, Moderation and Censorship
I notice that my comment has not showed up on the blog post, despite two others showing up.

I note, as others have already, that there is irony in the fact that the one calling Maoist names is the one who does not allow criticism to be freely posted to his site. Clearly "moderation" here means something more than just filtering for SPAM.
December 23, 2009

Darryl Moore said:

Response to Barry
cross posting with http://www.barrysookman.com/20...-treaties/ as I am not sure how selective the critics of "liberal censorship" are in the responses they post.

--------

Barry, I realize that you and many others see TPM as a benefit for consumers, but you never acknowledge that it is a benefit with significant costs.

Not only do you lose control of the media, for which you presumably are getting some benefit through lower costs, although even that has yet to be proven, but you also lose control of the devices upon which it plays. You never get to actually own your own hardware. This has proven to be disastrous in the mobile telephone sector for example, and I see nothing that would make it any better in the entertainment sector.

Why can the entertainment sector not achieve the exact same results by retaining ownership themselves and renting them both (hardware and media) out to consumers? This way they could use contract law instead of copyright law to achieve their no-tampering restrictions, and I would still be free to do with my property what I please. This setup worked well for GM and their EV1 car. Is it simply that they want all the benefits of renting, but not the costs? Through these copyright changes, they are saddling the consumers with the cost instead.
December 23, 2009

Anon-K said:

@crade
Agreed. My point was specifically directed at the C-61 debate; he argued for numerous exemptions for academia. I found the rationale to be weak, in particular with respect to the societal benefit for these. I admit there were academic benefits, however as the exemptions extended only to a select group of people, does it qualify as a societal benefit?

Certainly some of this is coloured by my own experience; I have mentored a number of university graduates and found that, in general, they are poorly prepared for working in industry (I work in the software industry and have a BEng in Computer Engineering). For instance, a tendency to install software for which a license is not held, reverse engineering for commercial purposes, etc. Adding exemptions such as were asked for, combined with a noticed tendency to not deal with post-academic issues, leaves me with the willies; it opens up the former student, and their employer, for liability, in particular where the exemption exists solely for academia.

As such, I can see why comments such as those can be read as being anti-copyright. Certainly from the perspective of the writer of a book and other content producers, as well as the publishers, this can be money directly out of their pocket. I agree with him that non-commercial format shifting and personal use backup copies should be allowed (especially since we already pay a levy to compensate on recordable media), however the groups I just mentioned have a financial reason for it to not be allowed. One of the ways that this is done is through copyright.

Back to the requested exemptions for academia. Publishing algorithms used by a company's product can open up a couple of issues; first of all, it may be proprietary and therefore not generally published (I used to work at a company who successfully sued a government research agency for publishing proprietary information as part of a research paper). Secondly, if the work appears to infringe on a patent (in particular because the researcher botched the research), it opens up the company for litigation, even if they don't actually infringe. This costs them money as they defend themselves.

The requested exemption for encryption research makes things more difficult for the encryption user and developer. Why? One of the ways to make it more difficult to decrypt something is to not publish the algorithm (this increases the level of effort, LOE, required for someone to make use of intercepted material)... Published academic research is likely to publish the encryption/decryption algorithm, reducing the LOE for people to crack it. Imagine that the algorithm used by the banks was published, and someone used that to hack the banking links.

This is why I had a particular problem with exemptions for encryption research, and to a lesser extent for reverse engineering. While it would be advantageous for academia to have this exemption, is it really in the best interest of Canadian society? I am not so sure of that. Certainly if the results were not published that would mitigate the issue.
December 23, 2009

Russell McOrmond said:

He is right, which is why his ideas must be rejected.
"arguing as he does in the blog post (and in his book) that a ban is necessary."

But, for his purposes, a ban is necessary. His purposes are not to protect copyright, but to replace copyright with software code mandated by a specific subset of intermediaries. The intent of the policy is to shut down new media, and return us to the days when only a tiny number of companies had the ability to control the means of recording, editing, and distribution of knowledge.

The question for us isn't whether he is correct in his analysis of what is necessary for his goals, but whether we should be fully and completely rejecting his goals. I for one believe in a world organised in the opposite way, where individuals control their own communications technology. If that means some legacy commercial media companies end up closing due to increased competition, then that doesn't bother me in the slightest.

December 23, 2009

Natt said:

DRM
DRM is para-copyright that is eternal. No wonder such companies love it so much. They are happy to take from the public domain, but never to give back. It's a selfish attitude, and those that support such schemes are equally selfish.
December 23, 2009

The Mad Hatter said:

An invitation to Doctor Ficsor to explain the value to the citizens of Canada in ratifying the WIPO Internet Treaties

I wrote a reply to Doctor Ficsor which was also posted to Barry's blog. It has not shown up yet, so I am assuming that they've decided not to publish it.

Thanks for re-tweeting me Michael.

December 23, 2009

The Mad Hatter said:

Link

Hum, the link didn't show, how about this:

http://crankyoldnutcase.blogspot.com/2009/12/invitation-to-doctor-ficsor-to-explain.html
December 23, 2009

Barry Sookman said:

...
Michael, you readers may be interested to read Dr. Ficsor's response to your blog. Its at http://bit.ly/7SnWjX
December 23, 2009

crade said:

...
@Anon-K
"however the groups I just mentioned have a financial reason for it to not be allowed"
Of course they have a financial reason for it to not be allowed. All sorts of companies would make more money if we changed the laws to force people to pay them more without them having to provide anything more. In my opinion this is a good enough reason not to to let corporations set your laws.

One thing with encryption research is that we need to compete against other countries who have no qualms about reverse engineering proprietary code and potentially using it in their military technology. I don't think it is reliable to try to secure your encryption algorithm by hiding it, and I would hope the banks use a proven, published algorithm rather than using an unreliable one and relying it remaining undiscovered, there are arguments to both sides, and it is natural that you have a different perspective than Dr. Geist considering your backgrounds. I don't agree with him on every point either, but that doesn't make him anti-copyright, it just means his views on how copyright would work best are not the exactly the same as yours and mine. I still believe he is at least trying to be fair and honest from his perspective. I can't say I believe the same about everyone involved.
December 23, 2009

crade said:

...
Yay, my comment is up! First one in :) Thanks Barry!
December 23, 2009

crade said:

...
"Michael, you readers may be interested to read Dr. Ficsor's response to your blog"
Holy propoganda batman!
How far do I have to read before I get past the "I'm so morally superior" rhetoric? Ugh.. too far.
December 23, 2009

Kai said:

...
So, I read this, and also read the response to it (for the most part, about halfway through I couldn't take it anymore) and I'm a bit amazed. The degree of rhetoric, personal attacks and claims of victimization at the hands of the foul anti-copyrighters is... excessive. I have to question whether these people are professionals in the end, since you'd assume professionals would try to stick to objectivity, to information, rather than these long rants which twist and turn through more and more dark alleys that are meaningless.

I similarly questioned (in far more polite language) one of Sookman's previous postings, which followed the same pattern and was, of course, censored.

I depend on copyright to make a living, but the extent demanded by some floors me. Even my responses to those on the side of such extremes have become more and more angry, because I feel they are undermining the discussion, turning it into some personal and childish flame war, instead of an open and honest debate... It causes far more backlash than forward movement and the majority of the time none of it seems to protect the creators, only the distributors. And the number of people who it pushes to the other extreme of "no copyright" seems to grow constantly.

It's wonderful to wake up every morning, catch up on the news and realise that, as a creator, whichever "side" wins, we are likely going to lose.
December 23, 2009

strunk&white said:

wow
"As any scientific researcher will tell you, you don't need to do any research if you already know the answers."

Oldguy, you really need to step back and examine this crush you have on Geist. The sentiment you express up there is everything that's wrong with the "discussion" that goes on at this site. A researcher is not supposed to work toward predetermined conclusions. You have just made the perfect argument for removing Geist from his Research Chair. I wonder if the U of O admin is reading this.

If folks here don't like Sookman's characterization of the "debate" you engage in, stop living up to it. Your real leader, as far as I can tell, is this McOrmond fellow. At least he's forthright and transparent about his position, and he doesn't use public money to forward it, as far as I know.
December 23, 2009

crade said:

money
I have nothing against public money being spent on determining Canada's policies and legislation. I sincerely appreciate having this information posted somewhere, even if the accompanying comments do not always agree with my own view. It's the private money being spent on it that I'm more worried about. I can private money (pretty much by definition if we are talking about corporations) doesn't care about any interests other than their own.
December 23, 2009

Devonavar said:

Still confused
Wow, Dr. Ficsor's response is even thicker than the original. I read it start to finish and I only have the haziest idea of what he's trying to express. As far as I can tell, he's trying to give a blow-by-blow account of the negotiations that led to the treaty language, but there's so much "x" said "y" said "z" said that I can't figure out what the actual content of what was said is.

It seems like he's just trying to say the debate was settled 15 years ago and therefore we should all just accept it, adopt the law and move on. I don't see any awareness of how the issue has developed since then (and I'd say those developments have been substantial, especially in terms of how the issues have come into the public eye), but I suppose I can't fault him for just making a historical argument.

The problem is, while the history he digs up may provide a good reason to put the WIPO treaty into law (or it may not, I can't tell), it doesn't provide a reason why the law is good. And, since most of us who oppose him are arguing on the basis that TPM protection is simply bad policy, it seems confusing that his response is just that TPM protection should be implemented because it was apparently a good thing 15 years ago.

In some ways I feel sorry for Dr. Ficsor ... I think he may have suddenly discovered (in the same way Mark Helprin did a while back) that copyright is in fact a highly controversial topic. I'm shocked that someone who has been involved at such a high level seems to have so little awareness of what ordinary, actual people think of copyright, but, at this point, his response appears just to be ignorant, not malicious. Perhaps I was wrong ... maybe he *HAD* never heard of Dr. Geist before now.
December 23, 2009

oldguy said:

@Kai

My sympathies to you, honestly. You described my observations accurately, the polarization around this issue is driving the potential for a massive showdown. Any "moderate" voice is essentially drowned out.

The global digital society has evolved their own set of values. It's irrelevant whether you or I or current stakeholders agree with them or not, they exist. From what I see, those values aren't anti-copyright per se, but they certainly don't agree with the current distribution and enforcement of copyright works.

If it isn't convenient, immediate, and global, it's doesn't meet their basic values. Price is negotiable, driven by normal market forces and the perception of "bang for the buck". If they are even aware of issues with copyrighted works, copyright is irrelevant to those values. If such works are made available within their set of values, they will use those channels, if they are not made available within those channels, they will find another way.

Current copyright law isn't written with these new societal values in mind. If you "attack" the behaviours these values entail, you get a human response - across a community. They go underground first, and then they work to "repeal copyright laws". They have the network and influence and means to form the organisations to make it happen - globally. Inappropriate response? Yes, but in the terms of human nature, a reality.

Laws don't create a society, they are a reflection. Politics and law are the lubricant that smooths the interaction of all members of society, including the minority defined as artists and copyright stakeholders. When a society's values change to the point where existing laws are grinding instead of lubricating, the laws must change. That's been a reality down through history.
Denying or ignoring the existence and values of a society is no better than denying or ignoring the existence of a law that has become outdated.

The first step is a dispassionate look at the new values, why they exist. Then craft new laws that are fair and balanced based on these new values. You certainly don't attempt to ride roughshod over these values, you will just alienate more and more of society, the future. Polarization into an "us or them", will never create a political environment that can create fair and balanced laws. My sympathies to original artists, stuck in the middle between these extremes.
My personal values place me somewhere in the middle, but I am also part of that digital society. Force me to one extreme or the other and I side with the future. Advocate for even stronger enforcement laws, which ignore my values, and will I respond.

December 23, 2009

oldguy said:

@strunk&white

My, my..

Your comment is wrong on so many levels, I don't know where to begin. So I won't.

Hubris. Go look it up. Dig into the psychology behind the condition, and the inevitable reaction when it is punctured.

If you wish to disagree with the message rather than attack the messenger, I'll respond.
December 23, 2009

Anonymous Coward said:

@oldguy
"My sympathies to original artists, stuck in the middle between these extremes."

As an original artist who gifts their work into the public domain, I have no sympathy for those who feel stuck. Copyright will be rendered obsolete in the near future. If an artist cannot figure out how to make money in the absence of copyright then they're not being terribly creative.

I haven't starved to death so I must be doing something right. I don't need copyright. Let me say that again! As an artist, I do not need copyright, so who is copyright really helping?

It's a good thing that it's the lawyers have such a tremendous say in artistic human expression! Without them, no artist would ever create anything. Ever. Good luck to everyone in the future. You're going to need it.
December 23, 2009

Kai said:

...
@oldguy

Thank you for the response, it defines the situation and reasons for it far more eloquently =)

If it's a matter of competing for value, that I have no problem with, that just means I have to be good at what I do... But that at least gives me a chance. Extreme copyright, things like the Orphan Act, or no copyright and I don't even have the chance to compete, I'm dead before I begin.

I don't even understand a lot of the time how copyright can be placed into an "us or them" situation, especially as in the creative industries it's the relationship directly between creators and their audience which means the industry exists at all.

Funnily enough, even though I'm also middle ground, if forced to choose one extreme I'd in the end go with the freer one as well... Turning my passion, life, into a hobby... the thought turns my stomach, but with the alternative extreme I'm not even sure I'd be able to keep it as a hobby, so it becomes a natural choice.

Anyway, thanks again for the post, it's nice to know not everyone is crazy ;P
December 23, 2009

Kai said:

...
To the coward:
Well, in the time I was writing my response to oldguy, you chimed in with that. So, first off, thanks for being an absolute git, since you've managed to dismiss anyone with concerns or the need of copyright and basically said "it's your fault". So kind and utterly ignorant of you.

I will say also, that I can only assume you have very limited experience in content creation, a niche, which as you say... means you don't starve. For those of us not in that niche, having no copyright protection at all can be crippling, not to mention all the abuses it can lead to.

I, for example, would not like some of my images to be used to promote offensive subjects. Some of what I've created have been used in campaigns for various causes, for free, when a hate group tried to twist one of the posters to spread their message instead, I could stop that. No copyright at all, and that would not have been possible.

And for another example, companies could easily rip off an artist (not that many don't already) with them having no recourse. Read up on the Orphan Act as something as well, and how artists responded to that because of what it would have caused.

By all the hells, for every decent person out there, there have to be gits who can't look beyond their own self-centered extremes, there can't be a balance or commonality. So much for civilisation. Bah.
December 23, 2009

oldguy said:

original artists, stuck in the middle
@Anonymous Coward
You are one of the ones that is already living in the future. One of the pioneers beating a path that others will follow. Congratulations.
Creativity comes in all forms, and some may not have the skills, or business models, needed to follow your path - at least not yet.

The thread of copyright has run through our society and it's law for the last 300 years. Unravelling that thread in a way that is fair and balanced for everyone isn't easy. Simply cutting that thread runs the risk of throwing out all kinds of things that are beneficial, even to the values of our digital world.
The current polarization is forcing a set of extreme choices. I would much prefer to see some choices in the middle, pointed down the path you have blazed. But if I am forced to choose one of the extremes, your path leads to the future.

@Kai
It's a different world. My first introduction to the digital society was through the GPL and open source software. I spent 30 years in the proprietary world, and frankly I wasted the first year simply looking at it from the outside, trying to figure it out. The values, the reasons for it's existence, the motivations. It still didn't make sense. Eventually I ventured in, a bit at a time. Two years later, I understood. That was 10 years ago. I still can't effectively explain it in terms that make sense to someone that isn't part of it, you need to develop new mental reference points to understand. You can see the effects, Linux, Firefox, Thunderbird, internet dating, Facebook, Twitter, Google, even P2P sharing. But those are simply effects, and won't give you a clue to understanding a digital society. The only way to understand it, and cater to it, is to join it.

You sound like you are at least half way there, perhaps all the way but still struggling with how to apply your skills and creativity.. Your road from "here" to "there" might not be clear yet. We need those middle choices for your benefit, and also for the benefit of the digital community.

December 24, 2009

oldguy said:

European Telecommunications Network Operators' Association expert opinion..

Some of the side links on this site are also interesting.

See:

http://www.michaelgeist.ca/content/view/4632/196

Which leads to:

http://www.etno.be/LinkClick.aspx?fileticket=lliyYutKMkA=&tabid=2209


If you boil it down, they are essentially saying "slow down, we challenge the ACTA assumptions".

They recognise the dangers of the polarization around this topic. They see the issues. They would like to see a rational, middle of the road approach.

It looks like there are some influential organisations that would like to see some sanity injected into these discussions.

December 24, 2009

Kai said:

...
@oldguy

I guess I need to clarify a bit, especially as this is like a dripping faucet on my attempts to sleep, it's not the digital community I'm concerned about. I am very well immersed in it, I actually use/have used everything you list there. I participate on multiple forums and sites, me and another creator friend of mine actually provide free content in the form of a comic. We don't even have ads at this point because we're happy to do it since it's more a hobby than a focus and the hosting costs are still low. So I do know there are many models out there that work, but I also know they are focused on a niche, both in content and also to their targets, specifically they cater to the wider digital community. I am not worried about them, us, out there. If someone does what they do well enough, share with the people, often they will support the creator in turn. But that ignores entire swaths of creators, especially in the visual field. The thing is, as an example, of almost all those you list most of them create profit through other corporate entities that hook into their systems.

For many creators, it's also simply not possible to generate income save by that route of working with businesses. Illustrators, matte painters and concept artists are prime examples. The chances that an illustrator can make a living by marketing to individuals is pretty slim. With concept artists and matte painters that likely drops to near zero. There just wouldn't be demand for it. I know some out there who immediately say, "well, then they shouldn't do that job! They should do something else!" I've actually had people say that and it's a response I find childish at best. And further, that if somehow that method is managed, you still often have to deal with print distributors, which if copyright is removed means they have no obligation to you.

It's the companies abusing, for profit, creators that I'm concerned about and where "no copyright" sounds like a sucker punch. Even in area's such as the GPL there's provisions to prevent such abuses, and GPL is not so much no copyright, as a use of copyright to ensure it stays free. If copyright didn't exist to some extent, the GPL would become void, because the original creators would have no say in how what they created was used. Even recently there was a push to create what was called the "Orphan Act", which would simply have allowed for a rudimentary search to find a creator and then they could use whatever they wanted, however they wanted. Legions of artists fought against that, not because they were worried about their neighbour screwing them, but because they were worried companies would use it to rip their work without so much as a thank you or appropriate credit. If no artist even had moral copyright, what obligation or even desire would a company have to compensate them? They don't even have the same support sense as the digital community would, they're a business.

In the end, I have to say you can't compare apples and oranges. You can't compare software to music, or to visual arts. Just like you can't compare one sub-industry of those to others, they're just too different. And you can't speak for them either, though in this case it was more the coward being self centered in that. It's no better than a distribution lawyer working for the CRIA trying to tell everyone what's best. It's why I hope for a balanced approach in all this, and one that works for as many groups as possible. Not draconian and not anarchist. I don't think it's a lot to ask to be heard in a democracy, or beyond human rights to ask that I can make a living, doing what I do well and providing something of value.

I have to say though, the other comments are strangely funny, if depressing in their commonality/reflection of each other. Both sides of the extremists are concerned only with themselves and their own wallets. And damn the rest.


December 24, 2009

strunk&white said:

pretentious blather
oldguy,

I guess it's easy to justify any position when you treat each and every opposing position as ill-informed. No, no, no, you just don't understand what's going on in our evolving society.

What you have at this site is an impenetrable echo chamber. You get to hear your own voice repeating the same trite rationalizations for clearly illegal activity, and a crowd of folks who all want to be excused as well say yes, yes, yes in return. Anyone who disagrees "just doesn't understand."

I understand. I've been listening to these weak excuses for many years, I've read Lessig, attended the CopyCamps, Geist lectures and hundred other copyleft events. I've processed all of it through my own "wisdom harvested from long life experience," and guess what? They remain excuses and rationalizations. No doubt we need some changes, and there are a lot of generous people on both sides of the issue working toward changes -- but those who struck out ahead of the law for their own convenience are not allowed to define what society is evolving into. Cue your next vision of "reality" oh great realist.

I keep seeing Martin Luther King Jr. quoted on this site. You should all be ashamed. Comparing your petty consumerist desire to download for free what you should be paying for to an actual struggle for civil rights in which actual blood was spilled. What does your long life experience tell you about that pathetic analogy?

No doubt it will tell you to relax, because is MLKjr. were alive today, he'd undertsnad, not like strunk&wite.

Hello, hello, hello, hello....
December 24, 2009

oldguy said:

@Kai

Exactly.. You say this better than I did.

Copyright works quite well for some things and provides benefits for everyone. It even protects GPL licensed works, where the "intent" of the license grants more rights to users than it does to authors and distributors.

But the the world has already changed. Technology has enabled a global digital society, which has developed it's own set of values. They exist. Those basic values aren't anti-copyright per se, but they do require an adjustment, a re-balancing, an accommodation. Some of that adjustment is simply updating business models, some of it requires moderization and changes in the law.

December 24, 2009

oldguy said:

@strunk&white

"are not allowed to define what society is evolving into"

And then you refer to Martin Luther King.. Hmmm..

Perhaps you are right, and I don't understand. So I ask the questions. Who decides? Who is *allowed* to decide what shape society will take?
The lawyers? The politicians? The copyright holders? Who do you consider as a proper authority to direct the shape and values of a society?

December 24, 2009

strunk&white said:

...
oldguy,

Why so selective in the quotation? Are you choosing to ignore something that is inconvenient to your argument?

"those who struck out ahead of the law for their own convenience are not allowed to define what society is evolving into."

You may be just fine with people ignoring the law for their own convenience and personal enrichment, and then claiming "civil disobedience" when it looks like they might actually have to face some consequences, but I find that behaviour hypocritical and counterproductive to real change. The MLK Jr. references are offensive enough because of the differences in scale already discussed, but they are also ignorantly inaccurate. MLK Jr. didn't sit in his parents' basement claiming civil disobedience so he could keep downloading movies he didn't want to buy. He went to jail, willingly, to protest unjust laws.

So who gets to decide what shape society will take? -- we all have the right to try to influence change. But those who won't stand by their convictions without whining quickly lose all moral authority.
December 24, 2009

maebnoom said:

...
An artist posted this recently on a torrent site. I'm down with it. And FWIW I don't want to see copyright abolished; I just don't like what I'm seeing in the ACTA etc. meetings these days. Copyright should be more open, nuanced, and forward-looking. There's too many different areas where a blanket (& draconian, IMO) approach doesn't cut it.
Most comments I see on this issue (on both sides of the fence) seem to boil down to greed vs. greed. No wonder neither extreme will budge.


What are your views on [torrent site] and/or audio piracy in general?

Audio piracy, for all its detractions, can easily be seen as an organic response, catalyzed by the advent of network technology, to the loss of focus and purpose brought on by the mass commoditization of music. It is a complex issue involving a variety of interested parties, but this much is certain: the record industry, together with the traditional media the industry uses to sell itself, has effectively alienated a vast number of its own customers. There are two key characteristics to the dissemination of music via file sharing that distinguish it from the record industry's methods: 1) Immediacy, and 2) Authenticity (inherent in the democratic aspects of torrents and forums). These two characteristics are fundamental to the way in which file sharing can force the industry to evolve. The obvious question remains, however, how will the artist survive if he cannot hope to be compensated for his work? The answer to that question, I think, comes when Immediacy and Authenticity are intentionally applied toward the realization of a third characteristic: Quality. This is where I see [torrent site] entering the picture. Who'll deny that the purpose here is to reconnect music with a greater sense of integrity? Serious music fans, through quality file sharing of music, as with [torrent site], can effectively send the message: "Show me some integrity, and I'll show you my support." And in this context, it is fantastic that artists and fans can more directly connect with one another.
December 25, 2009

DudleyAdeline said:

respond
I would like to propose not to hold back until you get enough amount of money to order all you need! You should take the loan or sba loan and feel yourself comfortable
March 26, 2010

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