If you had a vote for copyright?

[HarryT]

Originally Posted by Harmon

See, I think that this situation exists because of the copyright laws we have.

Certainly US copyright law seems to be tilted way too far in favour of the rights-holder rather than the public, when it comes to copyright length. I can think of no other country in the world where nothing has entered the public domain since 1923. Copyright terms may indeed be lengthy in other countries, but people there can at least see with their own eyes that new work does enter the public domain at the start of every year. Eg, I can be confident that Lucy Maud Montgomery's works are going to enter the UK public domain on 1st Jan 2013 - I don't have to worry that someone is going to change the copyright term to prevent me from getting them.

[Harmon]

Originally Posted by Sil_liS

I quoted from the report made for Congress by a Legislative Attorney with the title of Fair Use on the Internet.

I think I need to give you a more detailed explanation of what an affirmative defense is, & what "discretion" means in the law.

First of all, when judges have "discretion" they have the freedom to make certain kinds of decisions one way one day, and another way another day. A good example is whether to allow the testimony of expert witnesses. You can sue someone concerning the value of a piece of property, and offer an expert to testify about how to figure out what that value is. The judge has discretion to allow the testimony or not, depending on whether he thinks he needs any help on that. And he can decide he needs it in one case, but not in another.

The important thing to know about "discretion" is that ordinarily, a judge's discretion cannot be successfully challenged on appeal. It's up to the judge whether he wants to hear an expert witness.

An "affirmative defense" is, broadly speaking, an excuse. Say you are sued for allowing your dog to bite Joe. The plaintiff has to prove (1) you own a dog and (2) that dog bit Joe. You don't have to say a word - the other side has to prove that. But you might want to offer an excuse: "Joe provoked my dog." That's an affirmative defense. If you don't raise that defense, the other side doesn't have to worry about it, and will win the case. But if you do raise that excuse, and if it is true, then you are off the hook, even though your dog actually bit Joe. That's why it's called "affirmative" - you have to specifically raise the excuse or you can't complain later that they didn't prove your dog wasn't provoked.

Now here's the thing: the judge does not have the "discretion" to say he's not going to allow you to make the excuse that your dog was provoked. He can't decide to allow the excuse to be used when Mary gets sued for her dog biting someone, but to not allow you to give that excuse when it's your dog involved. He can decide that "provocation" is not a legally valid excuse that can't be used by anyone. But that's not "discretion."

So when we talk about "fair use" being an affirmative defense, what it means is that (1) the defendant has to tell the judge that even though he used the copyrighted material, he has the excuse that it was "fair use," and (2) once the defendant raises that defense, the judge can't say he's not going to permit the excuse to be raised. What he can decide, of course, is whether the excuse has been proved, but that's not a question of "discretion".

[Harmon]

Originally Posted by TuxGirl

Neither.

I think that copyright should be automatic for a short length of time (around 10-20 years), then be renewable in perpetuity (perhaps with something like 20$ per renewal, renewing every 5 years). This would require a searchable database, but it could all be handled easily online... So, orphan works would drop out of copyright quickly, allowing them to not be lost permanently, but Disney could keep Mickey Mouse copyrighted forever (since Mickey Mouse is the reason why copyright terms keep getting longer and longer and longer). Honestly, 20$/5 years is way less than Disney spends currently to keep Mickey under copyright, so I can't imagine who wouldn't like this idea...

Or maybe the law should be that any work not available for sale for a set period of time enters the public domain automatically. There are evidently many works that aren't orphaned, but aren't available because there's no profit in it for the owners. And this would obviate the need for registration.

[HarryT]

Originally Posted by Harmon

Or maybe the law should be that any work not available for sale for a set period of time enters the public domain automatically. There are evidently many works that aren't orphaned, but aren't available because there's no profit in it for the owners. And this would obviate the need for registration.

That would be dangerous, in my view. Copyright protection gives the important right not to publish, as well as the right to publish. Removal of that right has important privacy implications, when it comes to having the right to decline to publish private diaries, for example.

[Steven Lyle Jordan]

Originally Posted by Harmon

Not to worry. People wrote books before copyright, and they will write them if copyright dies. Particularly if I promise them some of my beer.

IOW, payment for services. What a wise concept. Provided they don't just steal your beer and not give you any books, of course...

Originally Posted by Harmon

But the vast majority of people obey the laws without enforcement entering into the equation. Enforcement only works at the margins. When a significant number of people decide to stop observing the law, enforcement stops working, and indeed, becomes dysfunctional, as witness our drug laws.

People obey laws because they don't want to be punished for disobeying them. (That's right... you're a lawyer, not a sociologist.)

Originally Posted by Harmon

See, I think that this situation exists because of the copyright laws we have.

Nope; before the digital era, effectively no one was complaining about copyright laws. It was the creation of the digital era, and the lawlessness that has followed, that prompted all of this grief.

[mr ploppy]

Originally Posted by HarryT

You might find it fruitful to do a little research into the number of people who have been thus disconnected. The answer may surprise you.

None, last I heard. But 60 people are on their last accusation. Like I said, most of them have paid for off-shore proxies and encryption to get around it, as well as subscriber download services that aren't monitored. The real question is how many of those people would have paid that money for a legal download service instead?

I can't seem to find any French entertainment industry profit figures for 2010-11 which would cover the introduction of Hadopi, except for one company that reports a 35% drop in profits. It obviously hasn't done that company any good whatsoever. The most likely cause would be the loss of disposable income the French have now that they have to pay higher internet fees because of Hadopi.

[HarryT]

Originally Posted by mr ploppy

None, last I heard. But 60 people are on their last accusation. Like I said, most of them have paid for off-shore proxies and encryption to get around it, as well as subscriber download services that aren't monitored. The real question is how many of those people would have paid that money for a legal download service instead?

I don't disagree with you. I was merely pointing out that your statement that:

In France, if you get accused of downloading more than 3 times your family gets disconnected from the internet

is not in fact actually true.

[mr ploppy]

Originally Posted by Steven Lyle Jordan

In this case, we as a people are faced with losing literature... not completely, of course, but we are faced with the shutting-out of independent authors, the higher costs of mainstream published books, continued format and platform disconnections, and a continuing narrowing of choices. A media run by a couple of publishers, Amazon and Disney.

People said the same about home taping killing music in the 70s, and home videos killing films in the 80s. The internet is just the latest monster threatening to topple society as we know it.

With music, I don't think we've ever had such an explosion of new music since the late 70s cassette culture, where bands would give their music away for free in return for a blank cassette and return postage.

It's the same with books. There's more books being written now than there ever has been before, and that's entirely due to ebook readers — a device that would never have existed if it wasn't for the early pioneers of ebook piracy. (Same goes for mp3 players).

[mr ploppy]

Originally Posted by HarryT

I don't disagree with you. I was merely pointing out that your statement that:

is not in fact actually true.

It seems okay to me? Maybe change it to "your family will get disconnected" to make it currently accurate? Maybe the remaining 60 people still using open systems will wise up and pay for off-shore services before they get disconnected, but they (French government, entertainment, etc) would need at least one scalp to dangle as a deterrent and to convince the masses that it has been a good investment.

[HarryT]

Originally Posted by mr ploppy

It seems okay to me? Maybe change it to "your family will get disconnected" to make it currently accurate? Maybe the remaining 60 people still using open systems will wise up and pay for off-shore services before they get disconnected, but they (French government, entertainment, etc) would need at least one scalp to dangle as a deterrent and to convince the masses that it has been a good investment.

Well, no, I'm afraid I must still respectfully disagree with you. Nobody has been disconnected, and I rather suspect that nobody will. Time will tell. Remember that the final option is connection or a fine. I suspect that a heavy user of the internet is going to pay the fine.

[miguel1626]

Originally Posted by Steven Lyle Jordan

In this case, we as a people are faced with losing literature... not completely, of course, but we are faced with the shutting-out of independent authors, the higher costs of mainstream published books, continued format and platform disconnections, and a continuing narrowing of choices. A media run by a couple of publishers, Amazon and Disney.

Just like home tapping is killing the music industry, right?

Piracy is a problem, but the losses are nowhere near those claimed by copyright holders, and actually very hard to estimate. And draconian laws are surely not the way to solve the problem.

[CWatkinsNash]

Originally Posted by miguel1626

This is a stupid poll, but if I were forced to choose at gunpoint, I'd vote for keeping copyright forever. Stories don't write themselves, you know

I agree with you. Given the two extremes, that's my choice also. The lesser of two evils for me personally.

I was going to quote a few others but there was too much; it would have been a multi-quote mess. HarryT brought up the importance of the right not to publish in response to the idea of "on sale within a certain time frame". Copyright effects a lot of content, not just those that we first think of when we mention piracy.

Over and over the discussion has been had here on MR. And over and over some folks say "there will always be writers who don't write just for money" (aka, the right to be the one to profit from their work) and so on. But forget the money for a moment. For some creators, the emotional component is the driving force. Does this mean that removing copyright protection won't effect them? Hell no!

I give away my (at the moment small) selection of music on the internet. The embedded music player has a download button and I even give instructions on how to use it. People have my permission to download my tracks. That's my choice and it's a very important one. If that choice is taken away from me, and everyone could legally just do as they please, then I would no longer be putting it out there.

I'm not just vomiting sounds over here, I'm creating something that's important to me, and it's mine. Even if the copyright duration was reduced to, say, 20 years, I'd be fine with that because for that 20 years, it's mine.

Someone mentioned (not even sure if it was in this thread) that we just needed something to take care of the financial compensation part, but for some of us, it would be meaningless without the ability to truly feel that what we create does, for a time, belong to us. Not everything is about money.

[Harmon]

[QUOTE=Steven Lyle Jordan;1935680]

IOW, payment for services. What a wise concept. Provided they don't just steal your beer and not give you any books, of course...

Books first. Then beer. There are priorities, you know...

People obey laws because they don't want to be punished for disobeying them. (That's right... you're a lawyer, not a sociologist.)

Actually, what we need is a psychologist.

Nope; before the digital era, effectively no one was complaining about copyright laws. It was the creation of the digital era, and the lawlessness that has followed, that prompted all of this grief.

That's my point. It is the copyright law that NOW is the problem, since it does not "fit" the digital environment. It no longer entirely makes sense.

For a law to be generally observed, it has to be generally regarded as a reasonable & proper law. Enforcement has a role (a small one, in my view) but laws work when the great majority of people think they make sense.

People do not exist for the sake of the law. The law exists for the sake of the people. When you find yourself having to rely on enforcement to get ordinary people to obey your law, something is wrong with your law.

[HarryT]

I thought laws existed for the enrichment of lawyers

[Steven Lyle Jordan]

Originally Posted by Harmon

For a law to be generally observed, it has to be generally regarded as a reasonable & proper law. Enforcement has a role (a small one, in my view) but laws work when the great majority of people think they make sense.

People do not exist for the sake of the law. The law exists for the sake of the people. When you find yourself having to rely on enforcement to get ordinary people to obey your law, something is wrong with your law.

All I'll say to that is: Try leaving the laws but removing all the police and law enforcement tools in this country, and see what you get.